Author Archive for thomas-crocker
Thinking Transcendentally
posted by Thomas Crocker
The mortgage crises follows a pattern of reasoning analogous to that sometimes followed in the national security context. When it comes to national security, we are warned that the Constitution is “not a suicide pact.” This catch-phrase is used for the argument that in times of national security threats, constitutionally protected civil liberties should not be used to constrain the necessary actions of executive officials. Why? Because security is a necessary condition for the enjoyment of civil liberties. Without security, so the argument goes, we can have no liberty. Thus, when times are tough, we should not allow constitutional commitments to get in the way of allowing officials to act as necessary to protect national security. (I critique a specific application of this argument here).
Similar reasoning seems to be at stake in the present financial crisis. In nearly as direct a catch-phrase, we are warned that leaving financial obligations untouched as they are would be an economic “suicide pact,” leading to unpredictable, though likely dire, consequences for the country as a whole. (Bernanke: action is “urgently required to stabilize the situation and avert what otherwise could be very serious consequences for our financial markets and our economy.”) In times of threat to the overall security of the economy, background beliefs in individual economic decisions and legal obligations (more or less, some version of laissez faire capitalism) should not be deployed to constrain the necessary actions of executive officials. Why? Because structural security of the economy is a necessary condition for the good of us all. Thus, when economic times are particularly tough, we should empower executive officials to act as necessary to protect economic security.
Both of these rationales depend on a form of transcendental argument: the necessary condition for the possibility of X (enjoying liberty), is Y (the provision for security). My central question is: Can We Think Transcendentally about Something Other Than Security?
September 24, 2008 at 7:01 pm
Posted in: Current Events, Law and Inequality, Politics
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Democracy’s a Riot
posted by Thomas Crocker
Taking a break from watching Wall Street turmoil, I notice that the NY Times reports today that Minneapolis is engaged in a post-game analysis of its heavy-handed police tactics surrounding the recent Republican National Convention. A pattern has emerged, at least since the 1999 Seattle protests: protect property and control crowds by any means thought necessary and worry about the constitutional consequences later. As the Times reports, more than 500 lawsuits are ongoing in the wake of the 2004 Republican convention in New York. But more than the usual public disorder violations, it seems that more serious charges of felony riot are being initially levied even against journalists in Minneapolis. The Times story provides: “‘At some point even a journalist has to recognize that they are in violation of the law,’ Tom Walsh, a St. Paul Police spokesman, said as the arrests were taking place. ‘Are they going to get arrested or are they going to cover it from a distance?’”
Tom Walsh has identified a key issue relating to democratic participation in light of police tactics at public gatherings: must individuals choose between facing arrest, or participating in (or reporting on) democratic interaction only from a distance? At political events—where public discussion and dissent might occur—government authorities have increasingly insisted on distance, in the name of order and property protection. Distance is a concept at home with the rhetoric of “out of touch” employed by both presidential candidates. A conundrum emerges, so it seems. “Out of touch” suggests that a candidate has not interacted with ordinary people closely enough to understand the issues and problems they face. Yet, when the people try to approach, to close the distance in an unscripted, more immediate personal encounter, they risk arrest and riot charges. No doubt, when public encounters are used to disrupt legitimate democratic participation by others, the need for public order prevails. Order, however, is how authorities justify maintaining democratic distance. When the public is prevented from drawing near on the grounds that officials wish to avoid “verbal tumult, discord, and even offensive utterance,” as Justice Harlan puts it in Cohen v. California, being advised that one can participate in democracy only at a distance, is a sign of democratic weakness, not strength (to invert Justice Harlan’s formula—“That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength”). In light of the demand for distance, I think governing officials need reminding that sometimes democracy’s a riot, and that’s a good thing.
September 17, 2008 at 5:16 pm
Posted in: Constitutional Law, Current Events
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In Whose Tongues?
posted by Thomas Crocker
After a couple of weeks of intense interest in Sarah Palin, Sen. John McCain’s choice for a Vice-Presidential running mate, we are still learning about who she is. As Dan Solove points out, one of the consequences of McCain’s choice is that a lot of time in the remaining election season may be focused on getting to know Gov. Palin, rather than on clarifying the issues and the views of the presidential candidates. Perhaps more than expected, the choice of Sen. McCain’s vice-presidential running mate matters, making this discussion unavoidable (even if regrettable given the time constraints). First, obvious age and health questions surround Sen. McCain’s candidacy, making his choice of running mate more pressing. As Frank Rich points out, that message was embedded in Gov. Palin’s invocation of Harry Truman in her acceptance speech. Second, the everyday role of the vice presidency has been redefined under Vice President Cheney, opening up the possibility for this unknown to play a greatly augmented role in crafting federal policy. Finally, the renewed enthusiasm among the Republican Party base suggests something about Gov. Palin’s worldview that some both find exciting and substantively consequential for a McCain presidency.
These revitalized voters are reported to be religiously-motivated voters, more specific than the general “values-voter.” (Is it even possible to be a “non-values voter”? After all, voting is always about values, the only questions are whose values and which ones). What do they expect from Gov. Palin, and what do they see in her? What conception of church-state relations does she have? How might her specific religious beliefs inform her worldview as a Vice President or President? Tracing her roots in the charismatic beliefs of the Assemblies of God Church, and her comments this summer to the Wasilla Assembly of God Church, I offer some reflections.
September 15, 2008 at 9:09 am
Posted in: Constitutional Law, Politics
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Dworkin, the Bard, and Boumediene
posted by Thomas Crocker
Catching up on my reading from the August 14 issue of the New York Review of Books, I was struck by a passage from Ronald Dworkin’s review of the Supreme Court’s decision in Boumediene v. Bush. Dworkin explains Justice Scalia’s dissent as based on an historical view of the extension of the habeas writ. According to Justice Scalia, the writ “could not possibly extend farther than the common law provided when that Clause was written.” Dworkin writes:
Was Scalia right to make the history of the Constitution decisive? We can read the suspension clause in two ways. We can take it to declare, as Scalia did, that the United States should never deny any prisoner the rights he would have had if he had lived in England or America in 1789, except in rebellions or invasions. Or we can read it to state a constitutional principle: that except in those cases government must allow anyone it imprisons the right to challenge his imprisonment in court. Like other constitutional principles, this requirement could not be read as absolute. It would not require habeas rights when it would be impossible or particularly burdensome to grant them—for example, if a prisoner would have to be flown to a US court from a battlefield abroad.
That qualification would not, however, allow government to escape habeas responsibility by building its prison camps in a foreign territory that is as much under its control as any base in this country. As Kennedy said, “The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” Scalia’s historical reading demeans the Constitution and insults those who made it. It is absurd to translate their clear declaration of principle into a rule pointlessly limiting prisoners’ rights to those enjoyed at some fixed and essentially arbitrary date. Kennedy adopted the second, principled, reading. The scope of the constitutional right to habeas corpus, he said, should be determined by what he called a “functional” test: the right should be available unless it would be, in his words, “impracticable and anomalous” to grant it—as it would be in the midst of military operations. (emphasis added)
I want to share some reflections on the italicized sentence, and in particular the following claim: “Scalia’s historical reading demeans the Constitution.” Is Dworkin right? Is the Constitution the kind of thing that can be demeaned? Does Justice Scalia demean the Constitution? I would like to suggest that the answer to all three questions is “yes.”
September 4, 2008 at 6:02 pm
Posted in: Constitutional Law
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Speech and the Politics of Presence
posted by Thomas Crocker
Democracy exercised in the presence of riot police. Free speech adjacent armored vehicles. Perhaps this is an overly dramatic way of describing otherwise unremarkable events of little consequence in the city of Denver during the Democratic Party convention. After all, relatively small protests in Denver will not amount to much practically speaking. Feared public disorder failed to manifest itself, and the poorly named “recreate 68” group failed to generate large crowds of protesters. If this failure means that the mayhem of 1968 has been avoided, then this failure is good for democracy. We want public political places to be occupied by persons exercising mutual respect, not engaging in violent confrontation. We also want public places to foster the presence of democratic participation. And that’s the problem with the reported large numbers of riot police in Denver. Public order is one thing, but public order with a heavy police presence is another. To state my concern simply: free speech requires a place in which one can speak, free from the dominating presence of the state; where fears of disorder allow government agents to dominate public places, then we suppress speech by suppressing the place of speech. Where we speak can sometimes be as important as what we say.
These pictures from the NY Times tell the story: a “free speech” cage constructed for “free speech,” a convention location completely fenced for security, riot-gear police controlling public space. These kinds of “free speech” tactics have become a staple at President Bush’s venues, rendering dissent invisible, and were used at convention sites in 2004, surviving judicial challenges. Timothy Zick has written about this problem here at CoOp in posts like this one, and I have written about this issue here. There is something discordant in the idea of free speech located in a guarded cage. There is also something discordant about a public sphere ringed by riot police. Yet, there is also something that has become increasingly ineffectual about politics in public – at least spontaneous public politics.
August 29, 2008 at 1:37 pm
Posted in: Constitutional Law, Politics
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Student Control
posted by Thomas Crocker
In a world of increased occasions for forms of social control, the university is extending its reach. In an AP story today we learn that universities are broadening the scope of their campus behavior codes to apply to student conduct off campus, in an effort to cultivate humanity, to borrow from Martha Nussbaum. One purpose is to make students better citizens within the community. From the article:
We have a responsibility to educate our students about being responsible citizens,” said Elizabeth A. Higgins, Washington’s director of community standards and student conduct, whose office has ‘educated’ 19 students since the extended code of conduct took effect in January.
The scope of these codes can be quite broad, as the article reports that the University of Colorado code “regulates any conduct that ”affects the health, safety or security of any member of the university community or the mission of the university.” The article further reports that Seattle University “has put its students on notice that cyber-patrolling will continue this year.”
Universities have a unique institutional role with regard to their students, and the impact of student conduct on surrounding communities can be significant (with both positive and negative externalities). Extending the scope of behavior monitoring to off-campus sites and to the internet does, however, reduce the realm of personal privacy and provides another occasion in which institutional control over behavior applies beyond the institution’s own parameters. Even if the purpose of this sort of cultivated humanity is to produce good citizens, it is unclear to me that more extensive monitoring is the way to achieve that goal. Without spaces to develop a sense of serendipitous self-determination, cultivating humanity may be more like growing corn – we get more homogenization and a good food supply, but we may also get more corn than we bargained for. Besides providing another occasion when one can mention Foucault’s work on forms of social control, it may be that universities are merely catching up with other institutions such as private companies who expect certain kinds of behavior from off-duty employees. Is it likely that law schools will increase the monitoring of their students off-campus or on-line any time soon as well?
August 22, 2008 at 2:24 pm
Posted in: Education, Privacy
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Presidential Politics and The Future Court
posted by Thomas Crocker
At last night’s Faith Forum with Rev. Warren, we got another look at the two candidates’ views of the Supreme Court. Asked which sitting Supreme Court justice they wouldn’t have appointed, we got mostly predictable answers, though not entirely so.
Sen. McCain named four Justices. He named Justices Ginsburg, Breyer, Souter, and Stevens – the four who often vote together, and the press designates as the “liberal wing” of the Court. He claimed that nominations to the Court “should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the Bench. Some of the worst damage has been done by legislating from the bench. And by the way, Justices Alito and Roberts are two of my most recent favorites.”
Sen. Obama named three Justices. He first named Justice Thomas, referring not just to disagreement with his Constitutional interpretation, but also to his relative inexperience at the time of his nomination. He added Justice Scalia on grounds of constitutional disagreement as well. Most interesting is his explanation for not nominating Roberts (whom he voted against). Sen. Obama stated: “One of the most important jobs of the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches. I think he has been a little bit too willing or eager to give an administration, whether mine or George Bush’s, more power than the Constitution originally intended.” This was certainly more thoughtful than merely repeating the standard cant about strict adherence. What are the implications of these contrasting views?
August 17, 2008 at 3:26 pm
Posted in: Uncategorized
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Hamdan, Human Rights, and John Edwards
posted by Thomas Crocker
Last week Salim Ahmed Hamdan was sentenced to 66 months in prison pursuant to his conviction for providing “material support for terrorism” before a military tribunal. His material support was comprised of driving Osama bin Laden around and serving as one of his body guards. Hamdan’s relatively short sentence, which will include time already served in detention at Guantanamo, will advance the issue of whether detainees who have served their punishment after conviction in the Administration’s military tribunals will be released, or will continue to be held as enemy combatants. Hamdan will likely complete his five and a half year sentence before a new administration is inaugurated. If President Bush does not release him immediately on completion of his sentence, that will leave the next administration with one more complicated problem to resolve. The NY Times reports that a Pentagon spokesperson “would not speculate’ on whether Hamdan would be released after completing his sentence.
Would it not violate Due Process to hold Hamdan indefinitely after completing his sentence for a criminal conviction? Under the reasoning provided by the Supreme Court in Hamdi, perhaps not.
August 11, 2008 at 4:23 pm
Posted in: Constitutional Law, Politics, Supreme Court
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Do We Need an “Arresting Afflatus”?
posted by Thomas Crocker
First of all, I would like to thank Dan for inviting me to join the Concurring Opinions community this month.
In a recent conversation I was reminded of this article about post-cold war conservative defections which appeared in Lingua Franca (a now-defunct magazine of ideas in which Alan Sokal revealed his hoax). In it, William F. Buckley, Jr. is asked in an interview to imagine who he would be if he were graduating from college in 2000. “What kind of politics would this youthful Buckley embrace?” He responded: “I’d be a socialist . . . [a] Mike Harrington socialist. . . . I’d even say a communist.” One reason for this rather stunning admission is that once the market ideal is entrenched as the dominant way of thinking, not only does it become “boring” as Buckley says, but it is also totalizing. One of the primary objections to old-style communism is the way that individual lives got processed in the totalizing system for the good of the class, the state, or the inevitable unfolding of historical dialectics. But is the emphasis on the market any less totalizing? Is the all-knowing and ever powerful market any less “boring” from the standpoint of human freedom than its vanquished communist counterpart? Similarly, in the market system, individual lives are constrained for the good of market efficiency. One should not complain about lost jobs or tightened credit we are told, because these are necessary to achieve overall market efficiency. After all, the constant, unthinking refrain today is that the market will solve everything. For the hypothetical young Buckley, this is a problem.
August 6, 2008 at 10:48 am
Posted in: Politics
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