More Scalia "Originalist" Hackery

Ben's old law school buddy Ian Millhiser reports on a special new piece of insanity from "Justice" Antonin Scalia:

Scalia also said he doesn't believe the Constitution bans sex discrimination.

The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.

But Scalia said he believes the amendment doesn't apply to discrimination against women because that use of the measure was not intended in 1868.

Hmm. Let's check the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Nope, nothing about "this doesn't apply to women" in there. I call hackery.

To his credit, Scalia said this in the context of saying that "a lot of stupid stuff is constitutional," so we can't say he's pro-sex discrimination. Rather, I think he's using his "originalism" doctrine - which says that the Constitution's meaning should be filtered through the opinions of those who approved it - to basically make stuff up in order to avoid having to address the 14th Amendment implications of a case that will likely be coming before him soon: Perry v. Schwarzenegger, the gay marriage case.

I've written this a million times on this blog in the past few months, but you can't make the Constitution say shit it doesn't say. If the people writing the 14th Amendment wanted to exclude women, they should have written that in there. They didn't. We have to follow the plain meaning of the Amendment as written.

Not that Scalia's the only hack who ignores the full implications of equal protection. It seems like a fairly sizable chunk of the legal profession does as well. The rational basis test is basically an excuse used by jurists to avoid having to address the fact that "equal protection" and "due process" might actually mean "equal protection" and "due process." I'm looking at the text I just quoted, and there's nothing in there that says "this shit doesn't apply if the government can come up with a good reason for why it shouldn't apply."

But Scalia's hackery is more reprehensible. At least the "rational basis" hackery is something of a neutral legal tradition and occasionally works to protect people's due process/equal protection rights. Scalia can basically interpret the Constitution however he wants by imagining that he's in the head of some dead guy 150 years ago. This reasoning has its place, especially when there's some ambiguity in the wording of the document, but one can't directly contradict the plain meaning of the text by invoking the imagined opinions of the text's writers. That's a right that Scalia is claiming for himself here, and that's why he's a genuine problem on the Court.

Speaking of hacks:

The Military's Precious Little Snowflakes

There was a fascinatingly stupid article on FanHouse last week about Kiss Cams at baseball games - you know, the annoying mid-inning JumboTron stunt where ballpark operators show people they suspect to be couples on the big screen and expect them to kiss, which they do most of the time - and how gay people shouldn't be on them. His rationale wasn't that we should stigmatize gay relationships, just that he didn't want to have to deal with explaining same-sex relationships to his kid. Jon Bois over at SB Nation gives this article the epic beatdown it deserves, and I won't rehash it here except to cite a line towards the end:

Anyway, I have this thing about spiders. They creep me out. When I have a kid, I'm going to make sure that my kid never learns that spiders exist until he or she is, say, twelve. I'm not sure exactly how I'm going to pull this off.

The point being, of course, that gay people exist, seeing them is part of life in 21st-century America, and parents need to deal with it. In short, we can't infantilize our children by shielding them from things that might make us or them uncomfortable.

Ironic, then, that I should read Bois' article on the same day that the Senate rejected a bid to end the military's inexcusable "Don't Ask, Don't Tell" policy that prevents gay and lesbian soldiers from serving openly in the military. Ironic because a Web-based sportswriter just demonstrated that he is more mature than 42* U.S. Senators.

There are, of course, the hardcore bigots who will oppose allowing gays to go anywhere, and there's only one real response to them. But the majority of the Senators that voted against this bill aren't haters. They're nervous little nellies, eager to infantilize our troops because they, like our FanHouse friend, don't want to confront the uncomfortable-for-them reality that homosexuality exists.

News flash: our troops aren't fragile little snowflakes who need to be protected from anything that might disturb them. Our troops are adults who are perfectly capable of doing their job and serving their country next to someone whose personal conduct meets with their disapproval. Teetotaler Baptists serve next to people who drink like fish. The pious serve next to those who curse God's name every day. If Bois' points against avoiding difficult topics make sense for our children, they absolutely make sense for people we're preparing to send into the most uncomfortable and disturbing environment imaginable: warfare.

*43 senators voted against the bill, but Majority Leader Harry Reid (D-NV), a supporter of the effort to repeal the policy, voted no for procedural reasons.

L'shana tovah.

May 5771 be your year.

A Nasty "Do While" Loop

There is a cycle in politics. It goes something like this.

1. People get really, REALLY upset over something, often at the urging of power-hungry politicians but often rightfully so.

2. Politicians talk about the Urgent Need to Do Something about this Horrible Problem.

3. Politicians find a symbolic scapegoat, and tell the people that they alone are responsible for Everything You're Worried About.

4. After the thing politicians have fingered as being To Blame gets theirs, they congratulate themselves on a Job Well Done, since they've Struck a Blow against Evil.

5. Three years later, people realize that the symbolic scapegoating didn't, actually, get rid of the problem, and may have in fact made it worse.

6. Repeat.

There are so many examples of this cycle it could fill books, but the one that jumps out at me most is the recent censorship-by-threat of Craigslist's "adult services" section. So let's break it down in terms of the cycle.

People got - rightfully - upset about sex trafficking and exploitation that occur under the guise of prostitution. The solution to this problem, of course, is extremely complex, and may involve some counterintuitive measures (more on that later). But when politicians get talking about how we have to Do Something, it's easy to overlook sober analysis of facts and screw up royally.

Enter Craigslist, our scapegoat of the day. They've played this role before, of course, so that makes them an easy target. Politicians took aim, as we can see with the letter above, blaming Craigslist for the exploitation and victimization taking place on their site. Even non-profits such as the normally good Polaris Project got into the act. Connecticut AG Richard Blumenthal, who is running for Chris Dodd's old Senate seat, congratulated himself on the results, calling it a "good first step."

Of course, the fly in all this ointment is Step 5, where we come to the slower-than-necessary realization that all this grandstanding against Craigslist actually made enforcement of human trafficking laws more difficult. Anti-trafficking and violence activist Danah Boyd explains it all:

It makes me scream when I think of how many resources have been used attempting to censor Craigslist instead of leveraging it as a space for effective law enforcement. During the height of the moral panic over sexual predators on MySpace, I had the fortune of spending a lot of time with a few FBI folks and talking to a whole lot of local law enforcement. I learned a scary reality about criminal activity online. Folks in law enforcement know about a lot more criminal activity than they have the time to pursue. Sure, they focus on the Big players, going after the massive collectors of child pornography who are most likely to be sex offenders than spending time on the small-time abusers. But it was the medium-time criminals that gnawed at them. They were desperate for more resources so that they could train more law enforcers, pursue more cases, and help more victims. The Internet had made it a lot easier for them to find criminals, but that didn’t make their jobs any easier because they were now aware of how many more victims they were unable to help. Most law enforcement in this area are really there because they want to help people and it kills them when they can’t help everyone.

Oops.

Boyd discusses the importance of visibility in fighting human trafficking, and that's something that I think a lot of politicians would just as soon avoid. If you increase the visibility of human trafficking, it does a lot of real-world good, because now law enforcement can find it and stop it a lot more easily. But that also lays bare to a lot of people the reality of human trafficking that's already there. But the emotional reaction to visibility is something along the lines of "GAAAAH GET RID OF IT!!!!" So politicians react by suppressing visibility - after all, that makes the problem appear to go away immediately. As a result, they successfully shut down an arena that could have been used by law enforcement to help trafficked and abused women in the sex trade. It's a sweeping-the-dust-under-the-rug solution, instead of the real solution Boyd proposes:

Censoring Craigslist will do absolutely nothing to help those being victimized, but it will do a lot to help those profiting off of victimization. Censoring Craigslist will also create new jobs for pimps and other corrupt intermediaries, since it’ll temporarily make it a whole lot harder for individual scumbags to find clients. This will be particularly devastating for the low-end prostitutes who were using Craigslist to escape violent pimps. Keep in mind that occasionally getting beaten up by a scary john is often a whole lot more desirable for many than the regular physical, psychological, and economic abuse they receive from their pimps. So while it’ll make it temporarily harder for clients to get access to abusive services, nothing good will come out of it in the long run.

If you want to end human trafficking, if you want to combat nonconsensual prostitution, if you care about the victims of the sex-power industry, don’t cheer Craigslist’s censorship. This did nothing to combat the cycle of abuse. What we desperately need are more resources for law enforcement to leverage the visibility of the Internet to go after the scumbags who abuse. What we desperately need are for sites like Craigslist to be encouraged to work with law enforcement and help create channels to actually help victims. What we need are innovative citizens who leverage new opportunities to devise new ways of countering abusive industries. We need to take this moment of visibility and embrace it, leverage it to create change, leverage it to help those who are victimized and lack the infrastructure to get help. What you see online should haunt you. But it should drive you to address the core problem by finding and helping victims, not looking for new ways to blindfold yourself. Please, I beg you, don’t close your eyes. We need you.

I can't say it any better than that.

There's a saying that talks about how emotion is the engine for politics, and rationality is the steering wheel. The political solution to this issue was all engine and no steering wheel, and now our fight against human trafficking is wrapped around a tree and needs a tow truck.

The sad part of all this is that our political process was set up expressly to value rationality over emotionality in decision-making. The slowness of our legislative process and our justice system serve the purpose of allowing people to inspect their initial emotional response for its actual meaning, and act rationally to solve the problem that created that response. It appears, though, that we routinely elect people without the political will to act rationally. Which means, of course, that unless we listen to sober voices like Boyd's, a couple of years from now we'll be reading another story about how there's so much human trafficking online and we have to shut down so-and-so platform in order to stop it.

Also read: Lori at Feministing's take.

OK, A Soccer Post

When former NFL commissioner Paul Tagliabue was realigning the divisions in 2002 to accommodate the new team in Houston and to make the divisions make geographic sense (until that point, Atlanta was in the NFC West and Arizona in the NFC East), he made one decision that, from a geographical standpoint, was a little questionable. See, Dallas has no business being in the NFC East from a geographical standpoint. Look at a map - it's nowhere near Washington, Philadelphia, and New York. Carolina, located in Charlotte, would have been the logical choice here, and Dallas would have been moved to the new NFC South in its stead. So why didn't this happen?

Well, could you imagine the size of the riots that Dallas and Washington fans would have staged if they had separated those two teams? I'm a lifelong Redskins fan, and the best part of being a Redskins fan is the two times a year we get to play our arch-rival Cowboys. The entire fan base goes nuts, players on both sides get pumped, and as a result, those two games are some of the most relentlessly entertaining sporting events you'll ever be a part of if you're a fan of one of the teams. If Dallas and Washington had been split up, they would have played each other about once every three years. Tagliabue would have been a moron if he had tried to pull that. So despite the geographical incongruity, Dallas remained in the East, and both fan bases got to continue their rivalry.

Why do I bring this up? Because CONCACAF, the federation that manages World Cup qualifying for North America and the Caribbean, is about to do what Tagliabue was wise enough to avoid doing - break up its two biggest rivals by instituting a new qualifying format.

CONCACAF is a unique region in qualifying for two reasons. One, it is dominated almost exclusively by two teams - the USA and Mexico - who have a fierce rivalry. Two, its final qualifying round was a single-group affair that placed six teams in a round-robin for three World Cup places. This meant that the US and Mexico got to face each other twice (home and away) each cycle. Which leads to pumped fan bases, players pushing themselves, and an atmosphere so special and intense that there's nothing like it almost anywhere. Read this Simmons column for an idea of how intense this rivalry is in Mexico.

What CONCACAF wants to do is to split this final qualifying round up into two groups of four. Now everywhere else in the world, where qualifying is done by groups, the teams are seeded. Europe doesn't want Italy, France, and England all being in the same group with only one team advancing, so they separate their big powers out into different groups. There's no reason to believe CONCACAF wouldn't do the same.

Which means Mexico and the US are all but guaranteed to be in different groups.

Which means Mexico and the US have virtually no chance of playing each other during qualifying.

Which really, really, really sucks for the fans.

The CONCACAF qualifying process may have been quirky and idiosyncratic, but it was a barrel of fun for the fans. We got two games to showcase our hate against our biggest rival in an extremely meaningful game. Think Dallas-Washington in the NFC Championship - only multiply it by 10. The only place we'll get that kind of atmosphere now is in the Gold Cup, and that's only if both teams make the final of the first post-World Cup tournament. (You'll remember no one cared about the 2009 Gold Cup, since it didn't carry a berth to the Confederations Cup with it.) We didn't get that in 2007 - Panama took out Mexico in the semifinals.

Now? We have to play a bunch of the second-tier teams, and then... that's it. No chance for glory in Azteca. No defending our home turf in Columbus. I'm sorry, but I just can't get that worked up about Costa Rica.

What's more, rivalry games have a way of making both teams better. The effort and training that we put into big games against Mexico have been a huge boon to us as a soccer power - we've been forced to raise our game far beyond where just playing Costa Rica and Honduras could take us. That's not something you can replicate in the inevitable friendlies between the two teams.

Is there hope? Of course. We could play Mexico in the finals of the Gold Cup next year. We could play friendlies, except add a trophy or something to make it a little more meaningful, and hope that that tradition catches on the way, say, Paul Bunyan's Axe caught on for Minnesota and Wisconsin college football fans. But it just won't be the same.

Our soccer world just became a little bit darker, thanks to CONCACAF. Cheer us on to our rivals, indeed.

A Little Subtle Anti-Semitism For Your Wednesday

One of the most obnoxious habits adopted by the Christian right is the use of the term "Judeo-Christian values." It's a shout-out to the social unacceptability of Christian supremacism, at least with respect to the Jews. It's often obnoxiously linked to the blather about how the US is a "Christian nation," which by definition excludes us Jews - it's as if they're saying "it's okay, you can come too, as long as you hew to the imagined form of Jewish morals that we have laid out for you." The fact that Jewish morality and Christian morality are starkly different once you inspect them is unimportant to them - what's important is the veneer of tolerance. And occasionally, that veneer slips.

Let's go to Hawaii, then, and check in on the culture-war shenanigans occurring in their race for Governor. Their current governor, the insanely popular Republican Linda Lingle, is term-limited. The lieutenant governor, Duke Aiona, and Democrat Mufi Hannemann are running to replace her. The head of the Republican GOP recently sent out an e-mail encouraging pastors to block Hannemann from campaigning in their churches. That's odd enough, but what's really revealing is this little tidbit:

Aiona's campaign is "Christ's opportunity," and his election would give Hawaii the first "righteous leader" since Queen Liliuokalani, who died in 1917," Kaauwai wrote.

That long string of "unrighteous leaders" would presumably include his own partisan Lingle. While she's nominally pro-choice, she supports a whole host of restrictions on abortion that are generally favored by pro-lifers, and since the illegality of abortion isn't going to come before a legislature anytime soon, she's functionally with the conservatives on that one. And Lingle recently vetoed a bill that would have given Hawaiian same-sex couples civil unions - not even marriage equality, mind you, but civil unions, a position so moderate that even the former governor of Utah supports it. You'd think that'd put her in the religious Right's good graces, yes? What, exactly, makes her an "unrighteous" leader?

I'm sure you, dear astute readers, have figured out the punchline by now: Lingle is Jewish.

It doesn't matter how much a Jew sides with conservative Christians on the issues. Jewish Republicans and conservatives will still be lumped in with the enemy when the Christian right folks talk amongst themselves. When it comes right down to it, they could give two shits about Jews. We're not "righteous," no matter how hard we try. So let's not be fooled. No matter how loudly they proclaim "Judeo-Christian" values, deep down they still don't like us. Folks like Eric Cantor and Norm Coleman would be wise to take note.