China and its Discontents

Air-Sea Battle Isn’t Misunderstood

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This is a re-post from my article at The Diplomat.

Harry Kazianis recently sought to refute an article I wrote for The Diplomat criticizing Air-Sea Battle (ASB). In his response to my article, Kazianis argued 1) ASB is misunderstood; 2) ASB is not about China; 3) ASB has other ways to defeat A2/AD than relying on long-range strikes against ballistic missile launchers, radar sites, and command and control (C2) networks; and 4) A blockade against China, which I had proposed as an alternative to ASB, doesn’t work for countries other than China. Some of these critiques are eminently fair; others are less so.

First: is ASB misunderstood? Is ASB really not about China? These arguments are predicated on the notion that both the Department of Defense and prominent defense think tanks have done a poor job of explaining the operational concept. As General Hoss Cartwright put it: “To some, [ASB is] becoming the Holy Grail…[But] it’s neither a doctrine nor a scenario and it’s trying to be all things to all people.” According to this argument, ASB is about perfecting basic “blocking and tackling” in a joint operational space, the aspects that most assumed the U.S. military could execute successfully but in reality has allowed its capabilities to wane in.

One such example of this, as highlighted by Sam LaGrone, was when a P-3 Orion ASW aircraft and an A-10 Thunderbolt II were jointly controlled by a U.S. destroyer to mop up Libya’s small coastal forces during Operation Odyssey Dawn. Neither aircraft normally works with the other: one hunts submarines; the other takes out tanks and conducts close air support missions. But they were the assets that were on hand, and they effectively eliminated the threat. In the future, the ASB office could advise the services in how to improve these kinds of ad-hoc operations.

Let me state unambiguously: I support such operations. Many of these examples (like making sure U.S. cyber networks are secure and can maintain ISR or logistics in a contested space) are defensive in nature and are just good common sense. Joint C2 has a wide variety of applications and is one of the great force multipliers of the U.S. military. Hunting submarines and clearing mines are a vital capability that shouldn’t be allowed to wither away. These are all operations that could be particularly useful in a military conflict with China or Iran, but they are not specifically aimed at China or Iran.

But then we get back to long-range strikes. Mr. Kazianis contends that long-range strikes on the Chinese mainland are but one option among many that the U.S. could use in an “escalation dominance” ASB framework, and that “it seems silly to dismiss ASB outright as escalatory based on one possible use of the concept.” This is an insufficient rebuttal. Eliminating adversaries’ central weapon systems through the use of penetrating strike assets—such as cruise missiles fired from a Virginia-class submarine with an enhanced payload module, smart bombs dropped from a Long-Range Strike Bomber (LRS-B), or Conventional Prompt Global Strike (CPGS)— is a central component of ASB.

In fact, this is acknowledged by the Joint Operational Access Concept (JOAC) and the Air-Sea Battle Office’s May 2013 report, both of which refer to such strikes as “attack-in-depth.” As the JOAC puts it:

“The potentially escalatory effects of strikes into an adversary’s homeland must be carefully weighed against U.S. political objectives and acceptable risk. Such escalation is particularly likely when the conflict is distant from the US homeland, and there has been no corresponding attack on U.S. territory. In these cases, the probability and risk of reprisal attacks against the continental United States must be considered.”

My argument is that the political risk vis-à-vis China will, under any reasonable scenario, always be too high; no president, unless faced with an existential threat, will authorize these kinds of strikes against the Chinese mainland.

Furthermore, as Matthew Hipple argued in a recent War on the Rocks article, a U.S.-China war would most likely start in situations “not where strategic interests bring [the] parties into conflict, but where tactical and operational level controls are accidentally engaged and rational escalatory responses are executed.” I agree that unintentional escalation is far more likely than a premeditated, first strike that leads to total war. In this situation, the U.S. would want to deescalate the war and slow down the tempo of operations, not significantly escalate the situation. A blockade would meet such objectives.

ASB does the opposite: it assumes that the U.S. will be subjected to a surprise attack, and that U.S. forces must provide an “immediate and effective response” through “high-tempo operations” to disrupt enemy A2/AD capabilities. ASB supporters, however, claim that the U.S. could control the level of escalation. But, as Hipple points out, “interest and intention are often overwhelmed by circumstance and procedure.” It is not really the development of strike capabilities itself that makes ASB dangerous; it is the way in which such capabilities would be used in a potential war. JOAC warns of the risks of a strike on an adversaries’ homeland, but does not even consider that the national command authority may be unable to rationally assess the risks of escalation. The question becomes: will war between the U.S. and China begin like World War I or World War II? A random event that leads to uncontrollable escalation, or a premeditated first strike? I would strongly argue the former.

It is entirely possible that penetrating strike assets might have utility in other scenarios such as North Korea or Iran, both of which have advanced air defense networks. Similarly, I don’t doubt that a blockade might prove useless against relatively isolated countries like North Korea or Iran. But if the U.S. is developing long-range strike capabilities for these adversaries and not China, this needs to be stated explicitly.

Immediate Thoughts on China’s ADIZ (Air Defense Identification Zone)

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First, it is already US policy to ignore the ADIZs of other countries if a plane does not intend to enter territorial airspace, and vice versa (for example, a plane flying parallel to a country’s territorial airspace):

“The United States does not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace nor does the United States apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace. Accordingly, U.S. military aircraft not intending to enter national airspace should not identify themselves or otherwise comply with ADIZ procedures established by other nations, unless the United States has specifically agreed to do so.”

But while the establishment of a Chinese ADIZ may not deter the US from any actions, it might affect smaller players like Japan, South Korea, or others (if China decides to establish a South China Sea ADIZ).

Second, China has not been clear how the ADIZ will be enforced. Initial statements emphasized ‘scrambling PLAAF fighters’ to any and all undeclared planes in the ADIZ, but recent comments from a PLAN admiral suggests otherwise (that it operates similar to the US interpretation).

There have been relatively hyperbolic responses to this event, and more reasonable ones (from Jim Fallows and Rory Medcalf). The central problem is not the ADIZ itself (after all, many countries, including the US, have one), but the conditions under which it was established. China’s establishment of an ADIZ that includes the Diaoyu/Senkaku Islands and one that requires identification from all planes, even those flying parallel to Chinese territory, is profoundly destabilizing and escalatory. China’s actions are ridiculous and it will probably get more than it bargained for. The US needs to make its existing policy crystal clear.

If on the other hand our PLAN admiral (above) is correct and China has simply set up an ADIZ that complies with international norms, then US and allied undeclared overflights should not bother China.

Written by Will

November 27th, 2013 at 8:54 pm

Air-Sea Battle: A Dangerous, Unaffordable Threat

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Below is a cross-post of an essay I published in The Diplomat.

It is an obvious statement that war between the U.S. and China would be catastrophic, wasteful, and a colossal failure of both countries’ grand strategies. The consequences would be difficult to quantify — massive repercussions to the global economy, loss of life, and possible escalation to nuclear war. Neither the U.S. nor China could possibly “win” from such a war, at least using any rational definition of victory.

How then has this reality affected debates over Air-Sea Battle (ASB)? Proponents of ASB are careful to note that war with China is unlikely and unwanted, and that ASB exists to deter war with China. But these studied responses paper over some logical problems with the battle concept.

One major assumption proponents make is that ASB is the only deterrent that will prevent a revisionist China from attacking first. Under this calculus, perceived intentions are often ignored. As the Center for Strategic and Budgetary Assessments’ Andrew Krepinevich writes in one of the first public reports on ASB: “While both countries profess benign intentions, it is an old military maxim that since intentions can change overnight—especially in authoritarian regimes—one must focus on the military capabilities of other states.”

But one doesn’t have to rely on Chinese intentions to assess how competing strategies would alter its strategic calculus. For China, a more limited U.S. strategy such as a Sea Denial campaign or T.X. Hammes’ Offshore Control would make war a failure before it began:

  1. A U.S. blockade and other war-induced economic crises at home would severely reduce the Chinese industrial capacity and mobilization, and force China to back down before it started to affect the popular legitimacy of the Chinese Communist Party. Interdicting shipping along the Malacca and Sunda Straits, and in the Indian Ocean, would cut off about 80 percent of China’s oil imports, or about 45 percent of total supply. Remaining overland pipelines could also be targeted. This would leave the PLA with limited domestic production, 90 days worth of oil in their Strategic Petroleum Reserve, and severe rationing among the Chinese population. The PLA would be able to survive with that level of supply, but Chinese industry would grind to a halt.
  2. In wartime China would be surrounded by U.S. allies (Japan, South Korea, the Philippines, Australia, and Taiwan) and states hostile to Chinese ambitions (Vietnam, India). If China attacked first, China would lose any propaganda/psychological campaign targeting international public opinion.
  3. A2/AD is a strategy aimed at degrading an opposing force as it reaches closer to the Chinese mainland—not projecting power. If it started a war it would not have the capabilities to finish it and break out of a crippling blockade.

These factors all suggest that a more limited military strategy towards China would be sufficient. More limited military strategies look especially desirable when one considers the high-risks of ASB. ASB, and particularly its long-range strikes deep within the Chinese mainland, are highly escalatory and offer no good way to end a limited war. In all likelihood, an emphasis on long-range strike platforms would result in a long-term arms race that would culminate in warfare with more expansive aims far out of proportion to those desired. The U.S. should not under any circumstances directly contest the CCP’s control of the Chinese state, the PLA, or its nuclear forces (i.e. the command and control structure) with long-range strike platforms. This would “back them into a corner” and spin the conflict off into an extremely dangerous, unpredictable direction.

These platforms­ — especially Prompt Global Strike, the Long-Range Strike Bomber and other classified programs — are wasteful in a time of steep defense cuts. In planning for the China scenario, the U.S. should be focusing on acquiring weapon systems that have low-visibility, low-escalation potential, high-survivability, and high-deterrence value, which would allow the U.S. military to conduct a blockade (lower-end surface combatants sitting outside of China’s reach) and deny the PLA Navy the ability to sail in their neighborhood (Virginia-class submarines).

The impulse to plan for and win a decisive, high-technology war against China represents a basic bias within the US military: as former PACOM commander ADM Timothy Keating remarked, in reference to China, “[PACOM] must retain the ability to dominate in any scenario, in all environments, without exception.” This is understandable because it is the job of the military to decisively win wars. But this also often leads to a confusion of ends and means, and a focus on military victory to the detriment of achieving political aims. This is why it is the job of Congress and the White House — the elected political leaders — to set political constraints on the use of military force. As Amitai Etzioni points out in a recent article in the Yale Journal of International Affairs, neither the White House nor Congress has done due diligence in reviewing ASB or opened up the necessary public debate regarding actual strategies toward China.

But the U.S. military has another, less recognized bias, and it’s the same one that has infected much of political science as an academic discipline over the past couple of decades. Just as many political scientists have embraced scientism, favoring quantitative approaches, statistics, and models over the study of ideas, people and cultures, many strategists have embraced a kind of fatalistic, geopolitical game theory. This approach treats military capabilities as the only relevant facts, as if you could plug every opposing weapons system into a computer and derive the perfect strategy. This is a form of hubris that B.H. Liddell Hart rightly criticized when noting how the psychological influences on warfare show that mathematical approaches to strategy are “a fallacy” and “shallow.”

To be fair, ASB is not mainly being driven by such a highly quantitative approach; rather, ASB has its roots in Net Assessment, which attempts to be a more holistic discipline. As Paul Bracken puts it, Net Assessment tries to “model simple and think complex,” thinking about the balance between two countries not only in terms of capabilities, but also doctrine, psychology, and the like. It is neither an art nor a science, but perhaps a mix of both.

But strategists could push the bounds of their imagination further. George Kennan, for example, strongly believed that the best foundation of strategy and diplomacy was not social science but history, art, and literature. This led him to be more humble about the limits of what strategy can accomplish. As John Lewis Gaddis quotes George Kennan: “Strategy [is] ‘outstandingly a question of form and of style.’ Because ‘few of us can see very far into the future,’ all would be safer ‘if we take principles of conduct which we know we can live with, and at least stick to those,’ rather than ‘try to chart our vast schemes.’”

This is exactly how we ought to be thinking about the prospect of a Sino-U.S. conflict. This is especially true because, as Avery Goldstein argues in recent articles in International Security and Foreign Affairs, the most pressing Sino-U.S. strategic problem is not the threat of war decades away, but the current danger of crisis instability creating a conflict spiral.

Having fought two wars in the last decade that diminished its national power, and now facing sharply contracting defense budgets for the foreseeable future, the US cannot blindly step into another major conflict. It needs to adopt a conservative strategy, that keeps its means within its limited ends, and thinks about “principles of conduct,” not “vast schemes,” by which a war with China can be avoided.

Ideological Contradictions on Tiananmen Square

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"Hold high the great flag of socialism with Chinese characteristics, under the guidance of Deng Xiaoping theory, the important thought of 'Three Represents,' and the Scientific Outlook on Development, and firmly and steadfastly advance on the road to socialism with Chinese characteristics, so as to build an all-around moderately-prosperous society and continue the struggle."

“Hold high the great flag of socialism with Chinese characteristics, under the guidance of Deng Xiaoping theory, the important thought of ‘Three Represents,’ and the Scientific Outlook on Development, and firmly and steadfastly advance on the road to socialism with Chinese characteristics, so as to build an all-around moderately-prosperous society and continue the struggle.”

When Western political commentators speculate on whether Xi Jinping could implement political reform, they are really asking whether or not Xi Jinping can successfully deal with Mao’s legacy and the Chinese Communist Party’s (CCP) legitimacy in the context of a modern, state-capitalist country. This is tricky because Mao’s legacy and the CCP’s legitimacy are inextricably linked—pull on one thread of the “Mao was 70% right and 30% wrong” formula and the entire apparatus could come crashing down.

The slogan shown, displayed on Tiananmen Square last November after the CCP’s 18th Party Congress (from a picture I took at the time), takes pains to include the ideas of Deng Xiaoping, Jiang Zemin, and Hu Jintao, but makes no mention of what is supposedly the foundation of the CCP: Maoism, Marxism, and Leninism. Marxism and Leninism have always been in the Party Constitution; Maoism was added in 1945, and taken out only briefly after Stalin’s death when some CCP leaders were afraid of replicating Stalin’s personality cult around Mao. Maoism was added back in after those leaders were purged. But now the CCP can’t be bothered to include these three in a propaganda outlet in one of the most visible spots in the country, right in front of Mao’s Mausoleum.

The sign is symbolic of an unsolvable paradox—the CCP is undermined by an ideological platform completely contradicted by its current economic and social systems, but it cannot change its ideology without the party losing its monopoly on power and the cadres losing their wealth and influence. That’s why it’s unlikely the CCP will reform politically until it is inevitably forced to change.

One Brilliant, One Depressing Video from Ai Weiwei

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First, Ai Weiwei mocks his captors while he was detained for a year (watch to the very end, please, it’s worth it):

The New York Times’ Andrew Jacobs has more on the video, including this very surprising piece of information:

The video was shot by the cinematographer Christopher Doyle, an Australian resident of Hong Kong who is best known for his work with Wong Kar-wai, a director of highly stylized films, and Zhang Yimou, who has in recent years been a favorite of the Communist Party. (ital added)

One question: what is Zhang Yimou of all people doing making a film for Ai Weiwei? Has he found his conscience?

And now the second, disturbing, video:

The title states that this was a street brawl in Beijing between Han Chinese restaurant workers and Tibetan street vendors, but Tsering Woeser on twitter has said that one of the groups was not Tibetan, but made up of members of the Qiang ethnic minority.

Written by Will

May 22nd, 2013 at 10:53 am

New Post at East by Southeast: Myanmar Ethnic Reconciliation is Impossible Without Chinese Cooperation

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The group blog East by Southeast, curated by my friend Brian Eyler, director of IES Kunming, has published an article I wrote. Here it is reproduced.

Just outside of Yangon lies the “National Races Village,” a park laid out as a geographical representation of Myanmar, with real-sized model minority homes dotted around the park next to miniature lakes and mountains. The park feels quite similar to the Chinese Ethnic Culture Park in Beijing; both represent slightly bizarre attempts to paper over inter-ethnic conflict, as if both countries are trying to live out some sort of “big socialist family” of yesteryear.

Unfortunately Myanmar also seems to have copied much of China’s policies towards ethnic minorities. Sixty years ago, China promised its ethnic minorities that if they cooperated with the CCP, they would be granted self-autonomy. Myanmar promised the same thing in the form of the 1947 Panglong Agreement, which called for power sharing between the majority Bamar and ethnic minority groups. Both countries failed to live up to their promises. In China, the CCP has engaged in a campaign to eradicate traditional cultures and languages, and has kept minority areas under tight control by party officials. In Myanmar, Ne Win’s military coup in 1961 gave rise to centralized, authoritarian control, and to ethnic rebel groups who fought the military for decades.

But China hasn’t just been a bad model for Myanmar to follow; in fact, China’s involvement in Myanmar has directly contributed to bad ethnic relations and violence there. Most prominent is China’s long support for the United Wa State, previously known as the Burma Communist Party (BCP). China’s support for the BCP began under Mao as an armed insurgency against the Tatmadaw, the Burmese military. After the BCP collapsed in 1989, the organization was retooled as the United Wa State Party (USWP) and Army (USWA), and signed a ceasefire agreement with the Myanmar government. It also transformed itself from a revolutionary group into the largest drug-trafficking organization in all of SE Asia and one of the biggest heroin producers in the world. To this day, China has continued to fund and arm this practically-Chinese private militia, which organizationally seems to model itself after the CCP and draws off of Chinese electricity, cell phone service, etc. If anything, China’s support for the USWA has only intensified in recent years, because it wants to retain its influence in Myanmar and does not want the USWA to be defeated by the Tatmadaw, as it seems the Kachin Independence Army (KIA) will inevitably be. Just recently it was reported that China has provided the USWA with helicopters armed with air-to-air missiles.

And what of China’s efforts earlier this year to facilitate a ceasefire agreement between the Myanmar government and the KIA? China is playing multiple games here. It wants Myanmar to be stable enough so that its state-owned corporations can successfully strip the country of its natural resources, but it doesn’t want the country to adopt wholesale political reconciliation, lest its contracts come under scrutiny and it gets kicked out of the country. Like many of China’s actions, this is a shortsighted move to retain influence; the long-term effects are counter to China’s actual interests. China sees only the current resource-extraction deals it has with the government, and the potential cancelation of such deals if the Burmese people, including ethnic minorities, have a greater say in that government’s policies. But what it does not seem to see is that as Myanmar’s GDP per capita rises from its current abysmally low figure, China is going to be Myanmar’s main source of finished products and investment capital. If China continues on its current path, then the Myanmar people, who are already fed up with China’s exploitative practices, will protest and force a change in the situation. In that situation, China would massively lose. This possibility is especially unfortunate given how much China could gain from a prosperous Myanmar, and how positively China could influence the country.

If China cooperates, it would be difficult, but not impossible to negotiate a Panglong 2 Agreement implementing political reconciliation. The current government insists that any political reform operate under the current constitution, which is still heavily biased towards the military and wouldn’t be a good framework for a federal governmental structure. In addition, Aung San Suu Kyi is not universally liked by ethnic minorities nor seen as their democratic savior; she is mainly a Bamar political figure. But the current government also realizes that if Myanmar does not deal with its ethnic problem, then the West will sour on Myanmar’s reform and the prospects for economic growth will wither away. This is a strong positive incentive to get it right. Let’s hope China agrees.

Sino-US Crisis Planning vis-a-vis North Korea Needed

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This morning Situation Report quoted Bonnie Glaser on Gen. Dempsey’s upcoming trip to China to meet the new Chief of the PLA General Staff Fang Fenghui:

The CSIS’ Bonnie Glaser tells Situation Report that Dempsey will take advantage of an increasingly engaging military-to-military relationship with China. She thinks Dempsey will be talking with the PLA about nuclear and cyber issues and also, of course, about Korea. “I’m pretty sure that one of the things that will be discussed is a very long desire to try to launch a dialogue with the Chinese about the potential for instability in North Korea and what the responses might be,” she said. “The potential for chaos, insecure WMD facilities and of course the risk” of a conflict on the Korean Peninsula between the Republic of Korea, the U.S. and the Chinese are all top concerns. Past attempts to address the potential failure of the North Korean regime have failed. But now may be the time because the Chinese have grown impatient at North Korea’s noise-making, and talking with the U.S. could send a strong signal to the North Korean leader, she said.

“I think that what we have now is a window of opportunity with China’s high level of frustration with the North Koreans and their provocations,” she said.

It would be a very good thing if this were true. Whereas China only recently became willing to credibly enforce sanctions on its erstwhile ally, it has so far not engaged in crisis planning with the U.S. over potential North Korean instability. At some point a crisis on the Korean peninsula will rear its head, war will break out, and the DPRK will collapse, and this lack of joint-planning will make an already-bad situation ten times worse. If a crisis does occur, my bet is that the PLA will cross the Yalu River in order to secure their borders, prevent a massive flow of people into China, secure WMDs, and stabilize the area. What will be different from the original Korean War will be that, even though both the U.S. and China will be heavily involved in North Korea, neither side will want nor intend conflict with the other. This makes planning and communication essential.

Written by Will

April 19th, 2013 at 11:55 pm

Paul Clement’s SCOTUS Oral Argument Reframed to Support Marriage Equality

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Reposted from Facebook:

Here’s an idea: Paul Clement argued last week in Hollingsworth v Perry SCOTUS oral argument that the government’s rational interest in preserving hetero-only marriage is to further its fundamental procreative purpose. But in what alternate universe will gay marriage deter straight couples from making babies (“oh, I suddenly have the option to get gay-married! time to switch sides!”), or encourage LGBT folks to go straight and make more babies? Conversely, marriage equality (and this is a point that has been made before) only encourages more children to be raised in stable, loving family homes (surely a rational government interest if there ever was one). What happens to children after procreation is actually a greater government interest than the procreative act itself. The pro-marriage equality argument often focuses on defining marriage as primarily an expression of love and commitment, which is true and great; but how would this debate be different if we focused more on the ways in which marriage equality strengthens society, supports children, and is in the end a pretty conservative idea?

Note: I am not in favor of this case being decided under rational basis review.

Written by Will

March 31st, 2013 at 3:48 am

David Brooks’ Specious and Trite Op/Ed on Chinese Education

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David Brooks wrote an embarrassingly clueless New York Times op/ed a couple days ago comparing Chinese and American learning styles, making conclusions that wouldn’t line up if you had even spent a minimal amount of time in the Chinese educational system. Brooks seems to think that the Chinese educational system exists as some sort of Confucian utopia:

“Westerners tend to define learning cognitively while Asians tend to define it morally. Westerners tend to see learning as something people do in order to understand and master the external world. Asians tend to see learning as an arduous process they undertake in order to cultivate virtues inside the self.”

But in reality this doesn’t reflect modern Chinese education at all. Education in China today is more free than it used to be but it is still heavily influenced by Mao: education’s purpose is largely defined as fulfilling a set of political goals, not cultivating virtuous individuals. Kids grow up with explicit “values lessons” in elementary school, but instead of cultivating a love of learning and a sense of citizenship, they learn obedience to authority and rote memorization. Then when they get to high school and college they transition to political education emphasizing traditional Marxism-Leninism. I suppose this is one kind of moral outlook, but normatively it certainly isn’t one that I would establish in schools.

The structure of the system itself squelches creativity and independent moral thought: the gaokao (the national standardized college admissions test) is morality-free, largely cognitive/instrumental, and serves as the main admissions standard, thus eliminating more whimsical criteria like admissions essays. Once students get into college, they must choose a major (often in a technical field that they are not interested in) and are never allowed to switch majors. Furthermore, they face academic dishonesty at all levels: among students and among faculty (hardly encouraging of independent thought!). Finally, no actual Chinese student would define their learning goals the way Brooks does. Brooks likes to think Chinese students emulate the Confucian ideal:

The idea is to perfect the learning virtues in order to become, ultimately, a sage, which is equally a moral and intellectual state. These virtues include: sincerity (an authentic commitment to the task) as well as diligence, perseverance, concentration and respect for teachers.

But in fact almost every Chinese student will tell you they work hard in order to a) Satisfy parental expectations, and b) If they’re a male, find a good job so they can buy an apartment and a car, get married, and support a family, or if they’re a female, attract a husband who will support them. This is but one more example of what Wang Hui calls “the de-politicization of politics”: “commercial logic is replacing political reasoning, a developmentalist discourse is replacing political participation, and a restructuring of interest relations of capital is replacing a debate on political values.” Framing education first as a method to drill in obedience and second as a way to create happy capitalist pawns strengthens the power of the CCP twice over.

A friend of mine describes what is most disappointing about this op/ed, however: “In the usual tunnel-vision view of the West as Wall Street and Hollywood, the whole tradition of moral learning going back to Aristotle and Aquinas is overlooked.” One would think that, even though David Brooks is no China expert, he might have a pretty good understanding of pedagogy and the philosophy of education in the West. The inculcation of virtue has been one of the principle pedagogical aims of education in the West all the way up until being deemphasized in the second half of the 20th century. In my view, while Confucianism has historically emphasized virtue, the virtues taught in the West have generally been normatively superior (this is especially true of the concepts of citizenship taught in Western public school systems–systems that are under attack in the U.S. by low funding and voucherization). I agree with Brooks that a moral impulse in education is good and that we should re-imagine what it means to teach citizenship today, and even that Confucianism might have something valuable to teach us in this regard. But he is completely wrong in looking to modern China for inspiration.

Paul Clement’s Anti-Marriage Equality Argument and Other Complicating Factors

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Garrett Epps at The Atlantic gives a good summary of one of the main arguments made by anti-marriage equality lead lawyer and Supreme Court barrister extraordinaire Paul Clement in the Prop 8 and DOMA cases. Per Epps’ summary, Clement argues in his brief that the LGBT community is no longer politically powerless and should be allowed to continue the fight for equality through political means, obviating the necessity for judicial action. But as Epps notes, this is a disingenuous argument, because it is geared towards denying the LGBT community a suspect classification of strict scrutiny under the Equal Protection Clause.

The question of whether the court will use rational basis or strict scrutiny in these cases is exceedingly complicated, and there are some things Garrett does not mention. In the Prop 8 case Judge Walker used the rational basis test precisely because of the fear that people like Paul Clement would successfully argue against the use of strict scrutiny and overturn the decision. If the Court also uses the rational basis test, then Clement’s argument is unnecessary.

But the Supreme Court doesn’t need to fear being overturned. The use of which level of scrutiny probably hinges on Justice Kennedy, since he is the swing vote and wrote the majority opinion in Lawrence v. Texas. Personally I think the reasoning in Lawrence v. Texas translates quite well to the argument for marriage equality. As I argued here, it is a natural fit, and very powerfully-written. But it also does not map well on to these questions of scrutiny. In his opinion, Kennedy used the Due Process Clause to overturn anti-sodomy laws. But even though the use of the Due Process Clause would traditionally require strict scrutiny and the violation of a fundamental right, he doesn’t explicitly use strict scrutiny, and is apparently in favor of using a whole new form of review that hasn’t yet been entered into jurisprudence (enhanced rational basis? I am not sure).

I imagine that other justices might be opposed to introducing a whole new form of review, even if Justice Kennedy does write the majority opinion. My hope is that the Court finally settles the issue and applies strict scrutiny to the LGBT community. This would make future cases easier to decide and finally cement LGBT equality on every front. Introducing a new standard would of course have far-reaching implications, confusing the entire judicial system and overturning a lot of firmly entrenched jurisprudence. Probably a good reason why it is unlikely. But I may be completely wrong!

EDIT: I should add that I find Prof. Epps’ commentary on Justice Scalia to be hilarious:

In the eyes of its enemies (and who seriously doubts Justice Scalia’s distaste for homosexuality?), any persecuted minority may suddenly morph into a tyrannical over-caste, without pausing at the civic equality stop.

Written by Will

January 25th, 2013 at 3:36 am

Posted in Justice