Wednesday, March 23, 2016

Writing ‘Trump 2016!’ on the sidewalk is not a threat of racial violence

A few days ago, someone at Emory University anonymously wrote the phrases “Trump for President,” and “Trump 2016” in chalk on various campus sidewalks and buildings. At a place of higher education, that’s disappointing to see.

It also, I shit you not, prompted 40-50 students to storm the offices of Emory President James Wagner, demanding answers, outrage, action and censorship.

And this storming, I shit you neither, prompted President Wagner to write this long, apologetic, introspective response letter to the students about the university’s ongoing efforts to combat racism, and email it to every single student at Emory.

At a place of higher education, this is far more disappointing to see.

One of my good libertarian friends goes to Emory, and she lamented the reaction of her fellow students online, promising to respond more appropriately by adding an “f” to the signs with chalk of her own (a reference to John Oliver’s famous and excellent segment on Trump, in which he revealed that Trump’s ancestral name was “Drumpf” and implored Americans to “Make Donald Drumpf Again!”).

One of HER friends (who I can only presume is far less libertarian than she), responded to her post with the following comments:

Have you ever thought about the fact that some people are upset because there are people at this school supporting a man that literally wants them dead?

You all are literal pieces of shit. It's unbelievable that you wouldn't understand that marginalized groups are AFRAID of our safety here. We never know when one of his supporters could come and fight us, beat us up, or kill us.

Below is my response to that person:

Donald Trump is a racist piece of shit, but who at Emory does he want dead? None of us know for absolute certain that someone won't come and beat us up or kill us today, but it is extremely unlikely to happen to any individual, marginalized or otherwise. And most importantly to [my friend’s] status, the likelihood that it will happen is not increased by the revelation that someone at Emory supports Donald Trump's candidacy.
Nobody hates Trump more than [my friend], and most of her friends commenting here hate him too (myself included). Should anybody ever try to hurt you for so baseless a reason as the color of your skin, I would be the first to step up to protect you and I'm certain most Emory students would do the same. I too am offended and angered and frightened by the prospect if a Trump presidency, and I understand you have a perspective as a black woman that I can never fully appreciate. I am sincerely sorry that in 21st century America you are still made to feel ostracized or worse by very powerful people, and I am eager to work beside you in changing that.
But none of that gives you a blank check to censor anything that frightens you or makes you uncomfortable. To prohibit people from erecting signs supporting Trump is to futilely battle the symptoms of racism, not to address its root cause. Only discussion can do that. Trump supporters are ignorant morons, but they are not literal equivalents to Klansman lynch mobs from 60 years ago. They have a right to express their beliefs every bit as much as you do yours.

That this even needs to be explained to people on the modern left validates every "slippery slope" concern ever raised by modern conservative free speech defenders. Wagner's letter declared that because the comments "appeared outside of the context of a Georgia election or campus campaign activity...the students with whom I spoke heard a message, not about political process or candidate choice, but instead about values regarding diversity and respect." That is to say, because some students claim to have been intimidated by the words "Trump 2016", such speech does not qualify as protected "political" speech about "candidate choice", but rather as that sort of speech which colleges are justified in censoring "to provide a safe environment that inspires and supports courageous inquiry." And this is not some wayward outlier student writing this, it's the President of the University.

If explicit, by name-endorsement of a leading major party candidate for a specific election in a specified year can be categorized as non-political speech, 
even in the heart of the national debate about that candidate's merits, what speech could possibly be political?

And if avoiding emotional harm to subjectively oppressed demographics is so important as to justify restrictions on even expressly political speech, at state-funded universities, which sort of speech remains the first amendment to protect?

Addendum: As fellow libertarian Jeffrey Tucker points out, this is technically a case of vandalism, as Emory is a private university with specific policies about when things can be written on its property, and those appear to have been violated. Also, he alleges it was written "maybe thousands of times," which does make it seem like it could have plausibly been aimed at intimidation. He makes some good points and adds some important nuance, but I stand by what I wrote here. First, I think he's being silly to argue that he doubts one single person at Emory supports Trump. Emory has over 14,000 students, in a conservative Southern state where Trump won 38.8% of the Republican vote. I don't care how liberal campuses are these days, it's just statistically implausible he's right about that. Second, chalk washes off in the rain, so no property is permanently damaged, which means this particular incidence of vandalism is about as egregious a property rights violation as egging someone's house on Halloween. Thirdly, colleges should be encouraging their students to write political messages on campus, not disavowing it and calling it vandalism, so maybe Emory's policies ought to be addressed. Fourthly, something tells me vandalism is not what the students "occupying" the President's office took issue with, and that they'd have felt the same impulse to censor had someone held up signs or chanted through a microphone with the same words. And finally, even if it was both meant to and had the effect of intimidation, it's not the sort of direct incitement to violence that warrants a speech restriction. Comparing it to a burning cross is a smidge over the top, don't you think Jeff?

Thursday, March 17, 2016

Was there even such thing as an “original meaning” of the constitution?

In at least two of my political science classes back at Hopkins, I heard professors assert as fact the idea that “there was no original interpretation!” of the constitution. The logic behind this viewpoint goes something like this:

“The constitution is at times ambiguous or vague, and even many of the framers disagreed about what it should mean. One famous example is Thomas Jefferson and Alexander Hamilton disagreeing about the National Bank. If even they could not agree on what they meant by it, how can we possibly figure it out today?”

First, we need to distinguish between ambiguity and vagueness. Ambiguity is when the same word can have multiple meanings that aren’t necessarily related. For example, “the right to bear arms” could technically mean either the right to carry weapons or the right to the upper appendages of animals from the Ursidae family. As that exaggerated example illustrates, intra-constitutional context can almost always determine which meaning was intended in cases of ambiguity.

Vagueness is different. Vagueness is when the general concept of something is understood, but the precise boundaries of that concept in practice remain uncertain. For example, prohibitions against “unreasonable search and seizure” carry a general connotation, but don’t specify what counts as that. In the case of vagueness, intra-constitutional context often does not suffice, so it’s okay to turn to extra-constitutional sources from the framing era or earlier to help resolve the matter.

However, this is okay only insofar as such sources are useful towards better informing our best guess as to what the meaning was at the time of ratification. This is important because it’s very different from the way left-wing justices handle vagueness today: proposing entirely new interpretations that lie far beyond the range of debate the framers ever conceived.

To visualize this, suppose all federal power could be quantified on a scale from 1-10 (one being almost no power, and ten being absolute power). Further suppose that clause X of the constitution was kind of vague: some Antifederalists felt it granted as few as two units of power, and some Federalists felt it granted as much as five units of power. It would be a reasonable argument, even an originalist argument, to propose a law that exercised four units of power, and then cite quotes from the Federalist framers as evidence this law was originally comprehended (at least by some) to fall within clause X.

This is not what “living document” theorists do. Instead, they propose a law that wields eight units of power, and claim it is constitutional under an entirely new, far more expansive interpretation of the clause. The recognition that there is no singular, unanimous original interpretation to harken back to is a fair point, insofar as it relates to your advocacy for one original interpretation over another.  But it does not follow from that observation that we should scrap the entire premise of understanding the words as they were originally understood. A proposed power needn’t have been unanimously favored by every framer – but it does need to be plausibly favored by some of the framers.

Put another way, the central premise of originalism is not that nothing in the constitution is up for interpretation, or that the answers are always clear. We do not eschew, deemphasize, or deny the necessary and complex work of deciphering the constitution’s meaning. What we’re about is clarifying which meaning which we ought to attempt to decipher in the first place. Specifically, we think the meaning that matters is the one which the people most likely understood when they consented to subject themselves to a government at the ratifying conventions. Alternative meanings which might be plausibly read into the constitution’s text by today’s most creative legal minds may be an interesting academic exercise, but without evidence that anyone officially consented to such an understanding of federal power, they can carry no moral or legal authority.

With that said, most reasonable originalists concede that there are certain passages of the constitution for which no specific meaning can be deciphered with a high degree of certainty. Originalists sometimes differ on how to handle these situations. My personal opinion on the matter is derived from famed originalist Randy Barnett’s “presumption of liberty.”

In the event that no guess as to the originally understood meaning is objectively more likely than another, consent theory mandates that the court must err on the side of nonconsent: that is, the side of unconstitutionality. The entire purpose of a constitution is to legitimize a government’s actions by attaining (or at least, attempting to claim) the consent of the governed. If there remains great doubt as to what it was that the people consented to in a particular case, it cannot be clearly known that the people freely subjected themselves to the exercise of power in question.

As anyone concerned by rape or sexual assault on college campuses should be able to tell you, if consent is not clear and unambiguous, it cannot be presumed to exist. Whenever anyone questions the constitutionality of the government’s actions, the nature of the social contract demands that the burden of proof be on those who claim authority. The same is true not only for governments, but for anybody who seeks to use another’s person or property. Until the authority to do so is definitively proven, the court must presume it does not exist at all.

This “presumption of liberty” need not come into play too often, however, as the constitution is usually much clearer than living document theorists pretend. Those who wish to wield power are biased arbiters: they have a natural incentive to read clauses as broadly as possible. Feigning confusion at seemingly straightforward passages enables the judiciary to work around inconvenient limits on federal power, thereby legitimizing interpretations that a neutral outsider would never reach upon first reading. Creating “gun free school zones” as an exercise of the commerce clause is a prime example of this. Very often, the most immediately obvious and intuitive interpretation of the constitution is the correct one.

Wednesday, March 16, 2016

Banning fraternities is a form of victim blaming

Imagine someone were to make the following argument in a feminist forum:

“If that women didn’t want to get raped, she shouldn't have gone to that fraternity party!"

That person would be rightly accused of victim blaming. Just like discussion over what she was wearing or how she was dancing, criticizing the decision to attend a certain party diverts blame away from the rapist, and puts the onus on the victim to prevent their own rape. All feminists should agree this is perverse.

But if the victim’ decision to attend a frat party should be irrelevant, what does that mean for the stance of many feminists that we should ban frats

Such a stance is not only an admonishment of the people who organize these parties, but also a de facto admonishment of anyone base enough to attend them. It amounts to a cluck of moralistic disapproval at the risky and promiscuous behavior these parties encourage, rather similar to the sentiment expressed by a conservative grandmother scolding her progeny for wearing XYZ outfit.

The reason that grandmother is wrong is that women should be able to dress provocatively if they want to, without being raped.

The reason it's unhelpful to tell women to avoid rape by applying special roofie-detecting fingernail polish is that women should be able to wear whatever polish they like, or lack thereof, without being raped.

And the reason it's wrong to tell women to avoid rape by not attending fraternity parties is that women should be able to get free alcohol if they want to, or dance with strangers to loud music in crowded basements if they want to, or play flip-cup if they want to, or do keg stands if they want to, or chant "Toga!" if they want to, or take somebody home if they want to, without being raped. Banning fraternities only attempts change by means of limiting those opportunities for women and men alike, which hardly makes women freer than they were before.

It wouldn't work anyway. College-aged people will continue to host and attend parties with lots of booze no matter what administrators do. If this policy is enacted, they'd just be called something else besides frat parties. Many women would still choose to go to those parties, and would defy any rules telling them they can't. Some of them would get raped. The only change relative to the status quo is that under such circumstances, a "no-frat" policy insinuates that the woman attending the underground party was at least partly at fault for breaking the spirit of the rule. Whether it's the government making you wear a seat belt to avoid death, a college telling you not to party around certain people/in a certain fashion to avoid rape, or your mother telling you not to play with a Red Ryder Carbine Action 200-shot Range Model air rifle to avoid shooting your eye out, condescending paternalism about how to avoid X amounts to an allegation of blame if X is not avoided.

If it is victim blaming to advise women to avoid frat parties, why is it not victim blaming to prohibit them from going to frat parties?

Would banning fraternities significantly reduce rape on college campuses?

Short answer: I doubt it.

Long answer: During my senior year at Johns Hopkins, the University temporarily suspended all fraternities on campus after a series of sexual assaults occurred there. This was obviously controversial, and naturally a discussion ensued on the Hopkins Feminists page. I didn’t save a full transcript, sadly, but one feminist supported the action by arguing “I
f the fraternity had an anti-rape culture...rapists wouldn't flock to it from out of the city with the intent of committing rape.” This was my response to him:

“An anti-rape culture would definitely make frats a less appealing environment for would-be rapists – no disagreement there – but I’m unconvinced it would be a sufficient condition to stop rapists from flocking to these parties. The problem is not that frat bros are simply more likely than the general population to condone rape. Other things besides rape culture also make frats a “rapist magnet,” and those things deserve an exhaustive listing.

The article posted a few days back explains another main draw: fraternities "controlled the alcohol on campus, and thus, the social life. So there I was, week after week, joining the throngs of half-naked women trekking to fraternity row." Regardless of the culture in a given fraternity, alcohol prohibition ensures that every weekend "throngs of half-naked women" will be getting drunk there. Rapists may be attracted to venues where alcohol is served to minors for the precise reasons alcohol is being served to minors at those venues: the tipsy freshmen will be deliberately hidden from law enforcement supervision. That’s why, whatever we do with frats, reducing the drinking age is a worthwhile ancillary reform.

Here’s another way to think about it. Imagine we banned all the fraternities on campus tomorrow. Would the people who previously joined frats stop throwing parties in secluded locations? Would 18-21-year-olds stop congregating at these places en masse, searching for alcohol? Unlikely. I suspect both students and rapists would just move elsewhere, like off-campus house parties, and I’m unconvinced the people at those parties would be less rape-cultured than the ones presently attending frats. Once the word got out about these new nightlife hotspots, we'd just be rearranging the magnets.

Republicans would be foolish not to confirm Merrick Garland

In the wake of Justice Scalia's death, there has been a lot of debate about the ethics of Republican promises not to confirm any Obama SCOTUS nominee. Even though constitutional law is one of the few places in which I do strongly affiliate with the right over the left, I was deeply uncomfortable with the Republican strategy and its implications for the long-term politicization and legitimacy of the court even prior to today's announcement. But now that the nomination has been made, all those principled objections to the Republican strategy go out the window. From a purely strategic perspective, Republicans would be foolish not to confirm Merrick Garland.

Even if they win the presidency, Donald Trump neither knows much nor cares much about the constitution, and has so many authoritarian proposals that he would likely nominate a justice who thinks essentially everything is constitutional. That flies in the face of any recognizably conservative jurisprudence. And if Democrats win, the whole "let's let the voters decide!" stance the right has been taking will blow up in their face and let Clinton claim a "mandate" to pick the most liberal justice possible. The only way the next justice winds up being more conservative than Merrick Garland is if Cruz or Kasich win the general, but that has to be less than a 30% likelihood at this point. Considering blanket opposition to ANY Obama nominee was already an unprecedented gamble in the first place, at this point it only makes sense for Republicans to hedge their bets.

This is especially true because the left's majority likely won't last for long anyway. The three oldest justices on the court - Ginsburg (83), Kennedy (79) and Breyer (77) - are all Democratic leaning. Ginsburg is statistically unlikely to survive the next 8 years, let alone keep sharp enough mind to serve as Supreme Court Justice. If the Republican plan to keep the court was to go all in on the outcome of the 2016 presidential elections, they can confirm Garland and still reclaim the court (if they win) before the liberal majority has the opportunity to do much damage. And if they lose the elections, they already face the ominous prospect of all three of those justices retiring and being replaced by much younger left-leaning justices, ensuring a sturdy liberal foothold in the court for decades to come. They don't want to make that four vacancies, which is another reason why confirming Garland makes sense: at 63, he is already rather old for a nominee, and likely older than whoever Clinton would nominate instead.

Part of me suspects that Republican strategists not only understand this, but have always understood it. What if McConnell never had any intention of blocking the Obama nominee, but was using the threat of denial (made plausible due to his party's recent reputation for ideological intransigence) as leverage to get Obama to nominate a moderate? What if he tricked Obama into posturing himself for a long, drawn out fight McConnell knew would never happen, just to ensure Obama nominated a moderate? In that case, he will gladly allow Republicans to confirm Garland, and his allegedly irresponsible, obstinate partisanship is transformed into a masterpiece of political gamesmanship.

Time will tell.

Sunday, March 13, 2016

A posthumous defense of Antonin Scalia from critics at The Economist

A few years ago, famed originalist and recently deceased Supreme Court Justice Antonin Scalia gave a lengthy and interesting interview covering a broad range of topics. A few weeks after that interview, The Economist took the opportunity to post an article ridiculing his beliefs titled Originalism's Sin. In honor of his recent passing, I'd like to refute those criticisms. You should read this second article before proceeding, because it’s brief and what follows won’t make much sense without you having read it.

The Economist’s argument against Scalia zeroes in on the following quote from his interview:

Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

Scalia’s critic then does what anti-originalists do best: remove a few words from the context of the larger text, and portray what remains as meaning something the original speaker never intended to say. Assuming the tone of a patient schoolteacher correcting a confused child, Scalia’s critic oh-so-insightfully points out that the meaning of words can, in fact, change over time. I’m sure originalists everywhere were enlightened by this shocking revelation.

But while the definitions of words can certainly evolve, this evolution does not change the underlying meaning of said words at the time they were previously used. Sure, we can tweak the meanings we ascribe to certain patterns of sounds or letters moving forward, but once those patterns are employed in a given context and era, the meaning of the word as it was intended and commonly understood in that particular instantiation remains fixed.

So, to use the author’s example, if we encounter the word “silly” while reading a document written in 1425, the evolution of that word’s meaning since 1425 remains completely irrelevant to our efforts to divine what the document’s author meant to say. To interpret the meaning of that document, the original meaning of the word silly is the one we should go by. To do otherwise would be to transform that portion of the text into a completely different meaning than that which was intended by its author and understood by its audience.

The Economist continues:

“Mr Scalia could use some helpful interpretation here. It would be glib, though not entirely wrong, to point out that this is exactly what he thinks other lawyers shouldn’t do with legal texts. As an originalist, he thinks texts can be strictly interpreted, without trying to get into legislators’ minds. (For example, he does not approve of using the debate around a law’s passage as evidence to what the lawmakers thought the law meant.)”

Prefacing an argument with the assurance that it is “not entirely wrong” says something about its likelihood of being right. In this instance, the author fell short of even that low standard: what he said is, in fact, entirely wrong. Originalism not only permits, but encourages interpreting the constitution by getting into the framers minds, and using the debate around the constitutions passage as evidence of what the framers thought the law meant.

Most originalists believe the constitution should mean whatever it meant when the people originally consented to it (aka, at ratification). Scalia himself endorsed this view in the very passage The Economist quoted, referring to its meaning “when the people voted for it.” The text itself is obviously the best indicator of that, but we have no problem with using the ratification debates as evidence for what they really meant by those words. The Federalist Papers are so often cited by originalists for this very reason.

With that said, citing the debate around the ratification of the constitution is very different from citing the debate around the passage of a law, because it is the real-world implementation of law that determines its constitutionality (courts can’t test the constitutionality of intended government practices that have never actually been executed, because no real person would have standing to file suit). The author ignores this obvious distinction by lumping the constitution in with mere legislation as equivalent “forms of legal text.”

Lastly, the author from The Economist tries to turn Scalia’s originalism around on him using the second amendment:

“Words have meanings only in relation to their speakers and the real world. Meanings can remain constant only if societies remain constant. The “arms” quotation from Heller is telling. While the dictionary definition of “arms” may not have changed much, arms certainly have…The guns Wal-Mart sells today at knock-down prices to masses of customers would be the deadliest personal weapons in the world 1787. This is to say nothing of modern artillery and armour, or chemical, biological and nuclear “arms”.

So even when a dictionary definition (like "arms") is stable, the referents change. The founders could not have explicitly meant to include an AR-15 assault rifle in their definition of "arms" because they could not have imagined one. Figuring out what they might have done differently if they were alive today is at best a speculative exercise.”

The equivalent of this argument is arguing that Congress cannot regulate commerce dealing with computers, or televisions, or LSD, or complex Wall Street derivatives because no such commerce existed in 18th century America. If the right to bear arms is defined so narrowly as to include only those arms which had been invented at the time of the framing, than surely the power of regulating commerce includes only that commerce which was engaged in at the framing, no?

But not even the strictest originalist or most passionate small-government lover, despite our desire to reign in what we see as abuses of the commerce clause, would argue that’s what commerce means. Commerce, by definition, is the exchange of goods and services. Therefore, the power to regulate commerce means the power to regulate that exchange, no matter what new technologies it comes to include.

The same is true of the word “arms.” Scalia is not arguing, in DC v. Heller or elsewhere, that Americans have a right to own nuclear or biological weapons, or tanks or even fully automatic machine guns. He argues, quite rightly in my view, that just as computer-automated derivatives markets constitute the modern version of what the ratifying conventions understood “commerce” to be, a good faith interpretation of the second amendment categorizes handheld, one-shot-per-trigger-pull weapons useful for personal defense and comparable to those used by law enforcement as “arms,” so long as they are small and light enough that one might “bear” them.

If the meaning of the constitution can be changed at will, the constitution means nothing at all.

Saturday, March 12, 2016

In Defense of Chan Culture

In my last post, I defended what Jacob Canfield called the “edgy-white-guy mentality” that “nothing is sacred, sacred targets are funnier, lighten up.” And several posts before that, I argued that Charlie Hebdo’s drawings of the prophet Mohammad were a valuable form of free expression which Eugene Volokh dubs “speech as defiance.”

In this well-written response to the media praise for Charlie Hebdo, Arthur Chu indirectly disagrees with us. He writes:

There’s no particular merit to being an “equal-opportunity offender”—indeed, it’s lazy and cheap, a way to avoid being held accountable for anything you say because none of it is part of a moral worldview or to be taken seriously.

…for half a century now [Charlie Hebdo have] been surviving pretty much on the notoriety of constantly trying to provoke a reaction. And let’s be real: pushing buttons, by itself, doesn’t make your work more virtuous. Pissing people off is just pissing people off.

But that, “pushing buttons, by itself,” is not what Charlie Hebdo were doing. They were pushing very particular buttons, in a manner calculated to make a political statement. And in this case, they were pushing buttons in defiance of violent and credible threats not to push those buttons. There is most certainly “particular merit” in that.

Some buttons need to be pushed, and the way you find out when is by asking whether the touchiness and sensitivity which made it a “button” in the first place are impeding frank and honest discussion on important matters. When it comes to religion, they very often are. The Catholic Church has a very real pedophilia problem, which Charlie Hebdo would not allow to be hushed by the touchiness and sensitivity of Catholics. Conservative right wing parties in Europe have a very real racism problem, which Charlie Hebdo would not allow to be glossed over by the defensiveness of moderate conservatives. And Islam, from the view of Charlie Hebdo, has a great deal many problems, with the persistent risk of being killed for blasphemy foremost among them.

Chu continues:
I’ve already seen what happens when you get a culture that, rather than asking to what end we defend free speech, valorizes free speech for its own sake and thus perversely values speech more the more pointlessly offensive it is—because only then can you prove how devoted you are to freedom by defending it.

When the only thing you’re reverent of is irreverence, when the only thing you hold sacred is the idea that nothing is sacred, well, you eventually get
chan culture, you get one long continuous blast of pure offensiveness and taboo-breaking for taboo-breaking’s sake until all taboos are broken and there’s nothing left to say. You get people who shout racial slurs in unbroken succession all day and think they’ve accomplished something in the name of “free speech” by doing so.

This would be a valid critique  if every media outlet were like Charlie Hebdo, and every website were like 4Chan. Conceded: trolls are not conducive to reasoned political discussion. It would indeed be bad for free speech were they to conquer all forums of debate.

But for so long as the majority of the media abides by the prevailing social taboos, it’s important that at least some do not. I’ll confess: I kind of like 4Chan! I’m not in the mood for it every day, but when you spend most of your time reading dry lawyers on places like The Volokh Conspiracy, sheer obnoxiousness can make for a refreshing study break. In any case, it’s good that it exists, even if only as an outlet that cleanses the discussion by diverting most of the trollish thoughts and behavior. Not every forum in our society can be elevated. Just as there has to be a place for civil, stuffy, academic discourse, there must also be a place for the lewd and disrespectful.

Ultimately, the latter is what makes the former possible. “One long continuous blast of taboo breaking” seems to me a fair assessment of human intellectual progress over the past few millennium, from Socrates to Copernicus to Mikki Kendall. Far from there being nothing left to say, the demise of taboos is precisely when you can start saying things that get evaluated on their independent merits.

When Chu laments how Hebdo was “doing something just to prove you can get away with it,” he’s wrong in two ways. First, with the way things turned out for them, it would be more accurate to say Charlie Hebdo were doing something just to prove you cannot get away with it, which is a far more ominous and important thing to prove. But secondly, even if they had gotten away with it, Chu rolls his eyes at something that should be celebrated. There may not be valor in shouting racial slurs for the hell of it, but there is valor in defying bullies.

The Hooded Utilitarian is wrong about Charlie Hebdo

An earlier post of mine listed this post by Jacob Canfield over at The Hooded Utilitarian among a litany of articles that took the murder of Charlie Hebdo employees as an opportunity to condemn Charlie Hebdo’s employees. My post then proceeded to refute the broader sentiments which united those articles, in defense of Charlie Hebdo. I stand by everything I wrote there.

But looking back, I think Canfield’s post deserves some more individualized attention than I was able to offer earlier, since it contains some additionally counter-arguments to my way of thinking. Those arguments were left on the cutting floor of my other posts, so I’d like to briefly rebut those points more directly today.

Canfield argues:

“To simplify the attack on the Charlie Hebdo offices as “Good, Valiant Westerners vs. Evil, Savage Muslims” is not only racist, it’s dangerously overstated.”

It is neither of those things; frankly, I think it’s an accurate description of what transpired, albeit one that is unnecessarily specific. It is unnecessary to include the fact that the speakers were Western and the censors were Muslim in our summary description of these events. It’s also dangerous, because it enables Islamophobic people to extrapolate conclusions about the shooters onto ALL Muslims or Arabs, in a way that certainly would be racist. But the simplification he quotes is neither racist nor wrong. Whatever you think of the Westerners killed in the attack on Charlie Hebdo, the people who waged it were absolutely “evil, savage Muslims,” just as the Nazi’s were evil, savage Christians. And personally, I think there’s something both valiant and good about those who deliberately push the envelope on permitted speech for the sake of ensuring the parameters of that speech do not narrow.

He continues:

“Cartoonists (especially political cartoonists) generally reinforce the status quo, and they tend to be white men. Calling fellow cartoonists TO ARMS is calling other white men to arms against already marginalized people.”

No, let’s not generalize here Jacob – it’s calling them to arms against only that subset of marginalized people who happen to be murdering others. And that subset deserves to have arms raised against them, whether or not they are marginalized! When it comes to the question of “who is the victim here?”, individual acts of extreme violence supersede collective historical marginalization. Senseless brutality of the sort displayed here is sort of a game changer, in the sense that to any sensible onlooker, it reverses the recipient of our sympathy, historical context be damned.

Nick Cohen of The Spectator put it best:

"[Hebdo's critics] have failed to understand power. It is not fixed but fluid. It depends on where you stand. The unemployed terrorist with the gun is more powerful than the Parisian cartoonist cowering underneath his desk. The marginal cleric may well face racism and hatred – as my most liberal British Muslim friends do – but when he sits in a Sharia court imposing misogynist rules on Muslim women in the West, he is no longer a victim or potential victim but a man to be feared."

More to follow.

Charlie Hebdo deserve their award for free speech whether or not they were racist

A few months after the Charlie Hebdo killings, an organization called PEN decided to honor the slain editors and employees with the Toni and James C. Goodale Free Expression Courage Award. Organization leaders Andrew Solomon and Suzanne Nossel explained why in an open letter, aptly titled Why We’re Honoring Charlie Hebdo. Here’s an excerpt:

These audacious attacks aim to terrorize a worldwide audience into silence on subjects that, though sacred to some, affect many others and must not be above debate…Charlie Hebdo’s staff members knew that producing satire aimed at venerated targets was dangerous. Their valor lies in their dauntless fortitude patrolling the outer precincts of free speech. While many question the defense of that far-flung territory because of the bigotry that can lurk there, Charlie Hebdo has guarded it vigilantly, keeping it open for all should a time come when we, too, may need to challenge taboos and risk sacrilege. Without those who stake out the border provinces, we would all be forced to dwell in an ever shrinking expressive terrain.

Couldn’t have said it any better myself. Unfortunately, many of PEN’s members did not agree, causing 145 of them to join in an open letter opposing Charlie Hebdo’s receipt of the award. They wrote in part:

"We do not believe in censoring expression. However, there is a critical difference between staunchly supporting expression that violates the acceptable, and enthusiastically rewarding such expression… in an unequal society, equal opportunity offence does not have an equal effect.”

In so doing, they joined
cartoonist Gary Trudeau in “questioning the defense of that far-flung territory because of the bigotry that can lurk there.” And of course, all this came months after the many prior defamations of Charlie Hebdo in the immediate aftermath of the murders.

I explained in a prior post why Charlie Hebdo was not racist by any reasonable interpretation of the word. But for the purposes of this blog post, let’s overlook that. Never mind that the leading French anti-racism organization, SOS Racisme, has called Charlie Hebdo “the greatest anti-racist weekly in this country.” Never mind that of the 525 Charlie Hebdo covers published from 2005 to 2015, only 7 singled out Islam, while far more ridiculed Christianity and the racism of France’s own National Front party.

I ask you to forget all that because for the purposes of this award, it’s irrelevant. Even racist assholes can be deserving champions of free speech.

When Martin Luther posted his 95 Thesis on the door in Wittenberg, he did so while holding
a set of religious beliefs that by modern standards was pretty abhorrent. His message surely offended and perhaps threatened many who encountered them. But when he refused to recant those beliefs while on trial, despite being threatened with the prominent and often enforced penalty of being burned at the stake, he did something heroic that paved the way for 500 years of Protestant dissenters after him. In the larger context of European history, the content of his objections to Catholicism and the theological merit of “justification by faith alone” are largely beside the point.

The point is, free-speech martyrdom is content neutral. If the Westboro Baptist Church had their offices firebombed in an attempt at their lives, and they kept protesting anyway, they too would be doing something courageous in the face of repression. They would still be jerks in lots of other ways, just like athletes who win MVP awards or actors who win Oscars can still be bad people. But those who offer such awards do not, and should not, consider perceived defects in the candidates’ character or political beliefs when determining who meets the criteria for the specific award in question.

When PEN gives an award for free speech, it’s celebrating those who preserve that freedom by refusing to forfeit it in the face of a heckler’s veto. PEN is declaring it unjust that people who wish to speak to be silenced by the threat of violent retribution, regardless of what it was they wished to say. Therefore, speakers who encounter threats or even acts of violent retribution and decide to keep speaking anyway, are standing up to that injustice and defending PEN’s founding principles – in this case, at the cost of their lives. That is a tremendous public service which warrants recognition. The substance of what was said shouldn’t even come into the picture.

The cartoonists and editors at Charlie Hebdo had nothing to personally gain from posting those pictures, and everything to lose. They weren’t doing it for profit, they weren’t doing it for self-satisfaction. They were doing it because they genuinely believed it was important that those subjects be ridiculed. They latched on to what they saw as a noble cause, they risked their lives for the sake of that cause, and they did so nonviolently – with that final word being the critical distinction between our conception of martyrdom and that of our Islamist enemies.

Here are four good articles that agree with me, with some excerpts:

Charlie is against all forms of authoritarian religion (Le Monde analyzed ten years of Charlie’s cover stories and found far more attacks on Christianity than on Islam.) Indeed, it is blasphemous. Is that not an honorable left-wing thing to be? It used to be so, before we became so hopelessly confused about Islam: half the time we’re reminding each other that violent fundamentalists like the ones who committed the Charlie Hebdo murders are a tiny fraction of the world’s 1.6 billion Muslims, who are ordinary, nonviolent people of good will, and the other half of the time we talk as if the murderers are out to redress real wrongs—and understandably so, even if the target is poorly chosen. Which is it? I’m not sure that latter view serves Muslims well—it’s a bit like saying people who assassinate abortion providers represent Christians, and West Bank settlers represent Jews.

It would be awkward for 145 alleged intellectuals to sign off on a document that made such easily disprovable assertions as signatory Francine Prose's comment to Pollitt that "It's a racist publication. Let's not beat about the bush," so better to holster the race card and instead pivot to an insane new free-speech concept: Even if you are truly equal in offending every segment of society, you are still guilty, because some segments are worse off than others…

Set aside the hypocrisy for a moment, and just think about the practicality of pre-calibrating your speech based on the comparative unequal status of the broad demographic group that the narrow target of your satire may or may not belong to. Doesn't sound like a particularly freeing exercise, even if you (like Charlie Hebdo did) focus primarily on people who hold power.

People who care deeply about global free speech won't soon forget that a collection of prestigious American authors chose the occasion of a mass murder to advocate illiberal principles and slander the dead.

“[L]et’s imagine, for a moment, that the Charlie Hebdo cartoonists weren’t very good guys. Surely even bad guys should be safe from fanatics with machine guns. The crucial distinction is not between those we like and those we don’t…but between acts of imagination and acts of violence. The imagination sees and draws and describes many things—pornographic, erotic, satiric, and blasphemous—that are uncomfortable or ugly. But they are not actually happening. The imagination is a place where hypotheses and conditionals rule, and where part of the fun, and most of the point, lies in saying the unsayable in order to test the truths of what’s most often said. When the Charlie cartoonists made Muhammad look foolish, they were not saying that Muslims were evil—they were questioning the entire business of turning a person into a prophet. Not to get this is not to get why they were cartoonists.

Their doubters, it seems, believe that this activity of imagination was wrong or condemnable. They believe, instead, in a kind of communal protection—that the comfort of communities is more important than the public criticism of ideas. It’s a legitimate thought, one with a history of its own. It just doesn’t seem to be a thought worth inspiring a boycott by a self-defined cosmopolitan community of writers. If literature has any social function, after all, it is premised on the belief that, in the long run, the most comfortable community is going to be the one that knows the most about itself. Criticism is always going to be uncomfortable for somebody.

“The relentless campaign against Charlie Hebdo by those accusing it of “racism” or “punching down” has had an effect. Because once deployed, as the surviving staff of Charlie Hebdo discovered, the racism charge sticks to the accused’s skin like napalm. And no one is immune — even murdered cartoonists — because there are no penalties for filing a false report. So if they expected unmitigated solidarité after their staff was machine gunned (while planning their participation, it should be noted, in an anti-racism event), they were surely disappointed when non-Francophone writers who hadn’t previously heard of Charlie exploded with denunciations of its racist intent. The most profane mainstream examples compared staffers with raping colonialists and genocidal Nazis.

one can’t begrudge Riss and Luz and all the other survivors at Charlie Hebdo the decision to go soft on those who most demand mockery and derision. But we should begrudge those in media who shrugged at the assassin’s veto, claiming they couldn’t publish satirical cartoons out of respect for religion, for whom Je Suis Charlie was merely social media signaling.”

Thursday, March 3, 2016

Why college tuition is so high

Most of the prominent members of the American political left don't really have a plausible answer. The two things you will hear a lot of them say is a) because private colleges are greedy and heartless, and b) because public funding for education has been cut, but neither holds much water as a convincing explanation. If private colleges are greedy, they're surely not any more greedy than companies in other sectors of the economy (where goods are much more affordable/in line with their production cost). And federal funding for all sorts of education (K-12 and college tuition) has increased substantially over the past 40 years or so, at the same time tuition has skyrocketed.

That's not a coincidence: the biggest reason tuition has increased is that federal aid programs were introduced which radically alter the pricing incentives present in a healthy market. The way FAFSA works, as you may recall, is that college applicants fill out a long series of questions about their family's financial situation, from which the government calculates an EFC, or Expected Family Contribution - essentially how much they think you can afford to pay. Whatever accredited school you get accepted to, the government will essentially cover the difference between that school's tuition and your EFC through grants or loans. The intent was to ensure everyone can afford college by capping a family's maximum payment.

The trouble is, unless the tuition is lower than your EFC, the price seen by the consumer is not the same as the price charged and received by the college, which distorts how prices are ordinarily set. Colleges now have a guarantee that they can essentially charge however much they want WITHOUT RAISING COSTS FOR STUDENTS (or at least, not raising them on a 1-1 ratio with the tuition increase). Crucially, this all but removes the incentive to price your school competitively with other private colleges, since so long as all the colleges are priced above most students' EFC's, consumers don't save any money by choosing a cheaper one (either way, they'll have to pay just the EFC, not the excess portion which falls to the government). So colleges continually raise tuition so as to not leave free government aid money on the table, because there's no longer much business downside of not doing so.

There is a TON of evidence that this is what's happening. I'll limit myself to three links here, but each in turn has far more links to follow:




Absent the ability to undercut their competitors' prices, universities have had to compete in other ways: namely, by offering more and more and infinitely more perks and features and lifestyle benefits to their students which are barely related to "education" at all. Massive, multi-million dollar sports complexes larger than most NFL teams have, coaches with the largest salary of any public employee in the state, more free clubs than you could shake a stick at, constant construction and renovation and expansion of new dorms and new class buildings and new libraries, huge gymnasiums, counseling services, medical centers, etc. etc. One college (I forget which one) even has a lazy river now! Colleges are becoming so much more than just selling knowledge or critical thinking practice, it's a 4 year all inclusive vacation resort. These are the "frills" I was describing above, which the German universities apparently don't have as much of. And they can afford to pay for all these new features because they can charge whatever they want, and get the government to hand them whatever their students can't afford:

The colleges themselves are the winners from this system - administrators especially, as my old professor Benjamin Ginsberg wrote a famous book on. They form their own little bureaucracy with great job security, much higher salaries than even most of the professors get, and no real competition or accountability to consumers. The losers are the students who can't pay their EFC's, or whose previously more affordable collegiate options are pressured to raise tuition to binge on the amenities applicants have come to expect. Oh, and the government, and the economy: they lose too. They lose because while education is very important, the law of diminishing returns applies to it as much as anything else, and we're well past the point where subsequent education funding does very little to actually make the country better educated absent significant structural reform.

Why college helps you find employment (but less than it used to)

Note: This passage was excerpted from an online discussion with a friend.

Why does having a degree make it easier to get a job? The traditional answer (and the one most people advocating universal college intuitively assume) is that college PROVIDES graduates with skills, knowledge, and experiences that TRANSFORM them into more valuable workers than they could have been without it. By this logic, sending everyone to four years of college would make everyone much more valuable to employers, and thereby make it easier for them to earn jobs or higher wages than they could have previously while making our economy as a whole more productive. This is likely true to at least some extent.

The other answer, which is less intuitive but I think more accurate, is that college degrees send signals to employers about the underlying attributes the job applicant possesses (and has always possessed). In other words, getting into and graduating from college REQUIRES certain skills, intelligence, competence and work ethic, and employers know this, so a degree merely REVEALS to them how valuable a given worker already was relative to their peers.
One way to look at this is that employers are using college admissions as their scouting agencies, essentially outsourcing the research about who is qualified/competent and who is not (they would otherwise have to do at their own expense).

The substance of what most people actually learn and study in college may be important for other reasons, but it's not that important to *most* employers, and doesn't make *most* workers all that much more valuable or productive. Evidence for this comes from how most people wind up working in fields completely different than the one they majored in, and how people forget the vast bulk of the knowledge/content of their courses even very shortly after graduation.

By this logic, sending everyone to four years of college would not make everyone more employable, because degrees are more a RELATIVE marker of merit than they are an ABSOLUTE marker. If almost everyone had a degree, it would merely cheapen the value of a degree in the eyes of employers, and they would be forced to look to other indicators to size-up job applicants - perhaps who had a Masters degree, for instance. This would just pressure the most ambitious and talented in the workforce to seek more and more degrees, not because they actually cared about the subject matter of found the information to be worth the money and time spent, but because they were trying to increase their earnings potential by setting themselves apart. And in fact there is evidence this is already happening, as employment is increasingly difficult to find even for people who have an undergraduate degree, and many of these people are seeking higher ed because they literally have no idea what else to do.

There are some who see this as a good thing, and who would like to see this process continue until everybody has a masters and a PHD in their chosen field and we'll have a world full of brilliant experts. If there were no trade offs, I would agree that sounds like a pretty cool world to live in one day. But there are trade offs, and that's where the next question - about cost - comes in. 

In any case, making college free and universal would not ensure everyone has a chance to succeed economically so much as it would merely force anyone who wants to survive economically to attend college (even more so than they are already pressured today).

Tuesday, March 1, 2016

Supreme Court Wordplay

Let’s play a word game. I call it “Thesaurus”. First, I will give you an adjective. Next, I’ll give two lists of potential synonyms for that adjective. Your job is to identify which of those lists contains words that more closely mimic the meaning of my original word. Sort of like the SAT writing section, only easier because, there’s only two options. Got it?

Good. The first word is “deciduous”. Does it mean…
a.      Transitory, momentary, ephemeral, fleeting, temporary and brief? Or…
b.     Pronounced, determined, distinct, resolved, and settled?

If you guessed option A, you’d be correct – words in option B were actually synonyms for the word “decided.” That was a tough one, though, so let’s try something a little easier. The next word is “unscrupulous”. Does it mean…

  1. Preposterous, absurd, insane, ludicrous, outlandish, ridiculous and unbelievable? Or…
  2. Deceitful, shameless, unethical, corrupt, immoral and dishonorable?
This time, the correct answer is option B – words in option A were actually synonyms for the word “fantastic”. To me, that was pretty easy, but I suppose some readers might still have been confused. In fairness to them, let’s finish with a really easy one; the last word is “necessary.” Does it mean…
a.      Convenient, useful, conducive, appropriate, calculated to effect, and plainly adapted? Or…
b.     Required, needed, indispensable, requisite, crucial, imperative, and vital?

If you guessed option B, you’re correct. The words in option B are taken straight from’s entry for “necessary.” To most people, the words in option A don’t seem much like the word “necessary” at all.

Apparently, Chief Justice John Marshall was not most people. You see, the words in option A were not taken from a Thesaurus. They were instead taken from the written opinion of that esteemed gentleman in the 1819 Supreme Court case McCulloch vs. Maryland. Specifically, they were the words Marshall argued the framers meant to say when they included the word “necessary” in the necessary and proper clause of the constitution.

Furthermore, the word necessary did not, Marshall continued, mean “indispensable” – a word which was on my list in option B, because it comes straight from the Thesaurus entry for necessary!!! The eight other members of the Supreme Court went along with Marshall, and in doing so they changed the course of US history forever. Peculiar, eh?

Now, let’s try the word “commerce”…

Lampooning Islam is not “punching down”

My last post about Charlie Hebdo responded to quite a few loosely affiliated critiques of the magazine at the same time. Today I’d like to address a more specific accusation: that ridiculing and caricaturizing Islam, or even radicalized subsets of Islam, amounts to “punching down”: the allegedly immoral practice of leveraging one’s dominant social position to make jokes at the expense of powerless and oppressed peoples (I have more to say about the entire concept of “punching down” in a future post, but for now, let’s assume that punching down really is a universal wrong). The most prominent version of this accusation came from Doonesbury cartoonist Gary Trudeau in his acceptance speech for a lifetime achievement award. Among other things, he said:

"The idea behind the original drawings [in Denmark] was not to entertain or to enlighten or to challenge authority—her charge to the cartoonists was specifically to provoke, and in that they were exceedingly successful. Not only was one cartoonist gunned down, but riots erupted around the world, resulting in the deaths of scores. No one could say toward what positive social end, yet free speech absolutists were unchastened...

This is a bitter harvest. Satire punches up, against authority of all kinds, the little guy against the powerful. Great French satirists like Molière and Daumier always punched up, holding up the self-satisfied and hypocritical to ridicule. Ridiculing the non-privileged is almost never funny—it’s just mean.

By punching downward, by attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons, Charlie wandered into the realm of hate speech, which in France is only illegal if it directly incites violence. Well, voila—the 7 million copies that were published following the killings did exactly that, triggering violent protests across the Muslim world, including one in Niger, in which ten people died.

Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

I think these comments get it exactly wrong. Among the many problems with them is the idea that drawing Mohammad or criticizing Islam more generally only “provokes,” without “challenging authority.” Very often, those two things are one and the same, and especially so when the authorities are the ones being provoked. To Muslims, Mohammad is an authority figure. So too are the Imams and religious leaders who claim to speak on behalf of Mohammad. Deliberately defying their orders not to draw Mohammad most certainly "challenges" their authority!

My favorite free speech ally Eugene Volokh agrees with me. He responded to Trudeau’s remarks in a blog entry titled, “Adherents of Islam, Second Largest Religion in the World, are a ‘powerless, disenfranchised minority”?:

Whatever the status of Muslims might be in France, Charlie Hebdo’s famous cartoons weren’t commenting on French Muslims as such — they were commenting on Islam generally, and particularly at the more traditionalist strands of Islam.

Islam has an estimated 1.6 billion adherents, and is the most powerful religion in many important countries. Being powerful, it has been doing plenty of its own “punching downward” lately, and not just by means of satire. It has plenty of “the self-satisfied and hypocritical” within it. Much within Islam — like much within many religions — merits some “afflicting” through criticism and even ridicule.

Islam is clearly not powerless. Expressly Islamic governments rule some 1/3rd of the earth. In those parts they do govern, they oppress many “disenfranchised minorities”. As I type, ISIS is raping and pillaging its way through the Middle East. Hundreds of thousands of truly powerless people are cowering before their murderous theocracy, pretending to believe things they don’t, lest they be accused of blasphemy and executed. This is a “bitter harvest.”

ISIS is not an outlier. In 13 countries, atheism is punishable by death. Homosexuals risk the same fate. These people are not oppressed by edgy white dudes in France – they are oppressed by Islamists, who bastardize the teachings of Mohammad to justify their racist, homophobic, intolerant, ass-backwards Medieval belief systems. To criticize radical Islam, even to blaspheme it, is to stand up for these oppressed persons – not to punch them. It is to heroically defy the entrenched systems of power that exist outside the West, just as certainly as other systems of power exist here.

Inversely, to shield Islam’s modern excesses from Western reproach for fear it will cause offense, inflict pain or spark defensiveness is to retard the progress of these Islamic societies. It is perverse and illiberal to overlook the most direct victims of what happened in Paris, and sympathize with the murderers instead of the satirists because of the color of their skin.

Jeffrey Goldberg also agrees with me. He wrote the following in his own Atlantic article:

No fundamentalist interpretation of any religion deserves the protection and sympathy of progressives. Islamists—adherents of a politicized, radical strain of Islam—are misogynistic, homophobic, and anti-enlightenment, and possess no tolerance at all for members of religious groups whose beliefs conflict with their own. These are traits one traditionally associates with the far-right, but some on the left are happy to support Islamists—even Islamist terror groups—simply because they stand in opposition to the West. (Judith Butler, the Berkeley comparative-literature professor, famously described Hamas and Hezbollah as "social movements that are progressive, that are on the left, that are part of a global left.")

So does Nick Cohen from The Spectator:
Prose, Carey, the London Review of Books and so many others agree with Islamists first demand that the world should have a de facto blasphemy law enforced at gunpoint. Break it and you have only yourself to blame if the assassins you provoked kill you 
They not only go along with the terrorists from the religious ultra-right but with every state that uses Islam to maintain its power. They can show no solidarity with gays in Iran, bloggers in Saudi Arabia and persecuted women and religious minorities across the Middle East, who must fight theocracy. They have no understanding that enemies of Charlie Hebdo are also the enemies of liberal Muslims and ex-Muslims in the West. In the battle between the two, they have in their stupidity and malice allied with the wrong side. 
Most glaringly they have failed to understand power. It is not fixed but fluid. It depends on where you stand. The unemployed terrorist with the gun is more powerful than the Parisian cartoonist cowering underneath his desk. The marginal cleric may well face racism and hatred – as my most liberal British Muslim friends do – but when he sits in a Sharia court imposing misogynist rules on Muslim women in the West, he is no longer a victim or potential victim but a man to be feared. 
While this Hebdo critic is technically correct that “condemning the Paris killings and affirming the right to blaspheme are not two sides of the same coin,” they should both be no-brainer positions for an educated progressive of any religion. That many European Muslims have yet to come to these conclusions does not change their correctness. If you do not believe we have a right to blaspheme, you are not so bad as the people who killed Charlie Hebdo staffers – but you are still very, very wrong, and should still be called out for that independently. Censors are never progressive.

In addition to opposing the legality of blasphemy, the article notes that an incredible 0% of British Muslims believe homosexuality is morally acceptable. Progressives should not be defending these very bad ideas from criticism just because their proponents are brown, anti-Western, or a minority in Europe. I get that colonialism was a horrible injustice, but blaming white people does not suffice as a comprehensive moral worldview for all situations. On the contrary, it only serves to strip the non-privileged of their agency in a rather belittling way.

A much more appropriate response is the one Norway followed in the wake of the massacre, by repealing their own blasphemy restrictions. This is not the same as condoning or agreeing with everything Charlie Hebdo ever published (I couldn’t laugh at the “Boko Haram welfare queens” joke either). But making fun of Islam more generally absolutely cannot be off limits.

PS - You don’t need to feel guilty for laughing at this, for instance. He sure isn’t ridiculing Baptists.