Monday, June 27, 2005

Let's Hear It For Free-Floating Posts

First, the Ten Commandments. The majority in Van Orden v. Perry: Scalia, Thomas, Rehnquist, Kennedy, and Breyer. "One of these things is not like the other ones..." Also, I might add that Texas and Alabama have to be the only places on Earth convinced that it's a good idea to make a graven image of something that says "Thou shalt make unto me no graven images." Biblical literalists my ass.

Second, restraining orders. In one of the weirder - and scarier - Court decisions, the justices decided that it's an onerous infringement on constitutional rights for a local government to actually enforce a restraining order. Which makes restraining orders meaningless, unless I'm completely misunderstanding the case (a likely scenario). The case is Town of Castle Rock, CO v. Gonzales, and the opinion is available here from SCOTUSblog.

Third, file-sharing. The Court ruled that file-sharing services can be sued if people use them to trade music illegally. That's like a burglary victim suing GM because the getaway car was a Chevy. Stupid, stupid, stupid. The case is MGM v. Grokster. (Also, where in the ever-lovin' hell is the legislative branch on this issue?)

Fourth, NC's goofy tax system. We're keeping a half-cent increase in the sales tax that was supposed to be temporary. That's a ridiculously high 7% sales tax and a 2% tax on groceries. And we're not raising the cigarette tax. We're giving cushy tax incentives to Dell and to movie-makers (the latter was, sadly, introduced by Wilmington's Julia Boseman, whose election was one of Democrats' big coups). If you're gonna raise a tax, here's two tips. One, don't raise the regressive taxes. Two, don't use the proceeds to pay off corporations and developers. It makes me wonder whether the people downtown who claim to be Democrats really are Democrats. Or if they're elephants in donkey clothing, as it were.

Fifth, it occurred to me today that Bush's theory about how everyone wants freedom is total crapola. Because no one really wants freedom. Everyone values something above absolute freedom, except the anarchists, and everyone makes fun of them. Think about it. Liberals (like me) don't want people to have the freedom to force laborers to work 15-hour days. Conservatives don't want people to have the freedom to marry someone of the same gender. And so on.

Any viable political philosophy, in short, has a value above freedom. For liberals, it's equality. For conservatives, it's order. For libertarians, it's property. The thing about America is that "freedom" is a shared value. We all justify our policy stances using the argument that equality/order/property rights/whatever is essential to freedom. The truth is that all of these things detract from true freedom - so no one in America wants complete freedom. The difference is that we tend to moderate our desire for these superimposed ideals - no American liberal values equality so much as to be Communist, and no American conservative values order so much as to be Fascist.

But what about other cultures? Take China. They have Confucius and Lao-Tzu to our Emerson and Thoreau. Their culture is built around obedience and order, as opposed to ours which is built around individualism. Therefore, is it fair to say that they "desire freedom"? To the average Chinese person, is freedom truly desirable above a well-ordered society? (Someone who's more familiar with modern Chinese culture would have to help me out.)

So when we talk about other countries and how they want to be free, we have to consider carefully what this means. Is it fair to Iraqis to project our own conception of freedom on to them? Certainly very few people want an autocrat and a tyrant like Saddam. But in the Muslim world, we must not underestimate the desire many people have to establish a state that God would be proud of. (Come to think of it, we probably shouldn't underestimate that urge here either.) If we try to impose our brand of individualistic freedom on a highly communalistic society like Iraq, it might not go over so well.

And there are certainly those out there who prefer the safety of stability to the unpredictability of freedom. We certainly valued stability over freedom in our foreign policy for a long time (even when dealing with populations that came close to sharing our ideas of freedom, such as those in Latin America). My point is that people, when given a choice, don't always choose freedom. In fact, they almost never do. So we need to stop conflating democracy and freedom, and we need to realize that states that look like dictatorships to us may enjoy wide popular support. Our foreign policy needs to be a lot more case-by-case than the Bushies want us to think it should be. (They're conducting it case-by-case, but they want us to think it shouldn't be done that way. Of course, they're also screwing it up case-by-case.)

Your paradoxical statement of the day: Sweeping generalizations never work.


Mike said...

You make an interesting point about freedom. If I get to a more coherent state, I may write a longer response. But for now, I just wanted to say that it's an interesting point.

Jeff said...

Mike, Mike, Mike... never drink and blog.

Ben said...

Jeff, you have misunderstood Gonzalez....but it's still a terrible, terrible opinion.

It's basically about whether local governments can be sued. Generally speaking, governments (as opposed to individual government officials) have sovereign immunity and cannot be sued for money damages for bad shit they do. However, under 42 U.S.C. section 1983, you - the injured plaintiff - DO have a claim against the government if it deprives you of your constitutional rights....including your Due Process Clause right to life, liberty, and property.

So, in Gonzalez, there was a restraining order against this woman's ex-husband. He was supposed to stay away from their kids. The police fail to enforce it and the ex-husband kills the kids and himself. Now she wants to sue the police/the local government (same thing) for failing to protect her. She and her kids had a liberty interest in safety and, by failing to do their duty and protect her family, the police deprived her of that interest.

Problem is, the Supreme Court has held that governments don't have a legal duty to protect us from privately inflicted least not one that could create a cause of action for a lawsuit if the government screws up. Now in the Gonzalez case, the woman claimed that her case was different because the government created the restraining order. That's tangible interest and a special expectation of safety she should enjoy. Surely that's a Liberty Interest which the government, by its negligence, has deprived her of.

No can do, said the Supreme Court. The restraining order changes nothing. The police should enforce restraining orders, but if they fail to do so, the local government can't be sued for it.

That's a bunch of legal mumbo-jumbo to say that local governments are again saved from being held accountable by the hideous doctrine of sovereign immunity.