"The glowing scimitar of the American right." "It is a good thing, not a bad thing, to be attacked by the enemy," says Ann Coulter in a remarkably fawning interview with the ever-sycophantic George Gurley (proximity being, as always, the progenitor of prostration). Coulter's vitriol is again mistaken for vim and her accusations for argumentation by a writer who believes an unreasoning hatred of and by leftists to be a necessary component of every conservative's bona fides.

 
Learn something new every day: Be sure to drop on by and read this interview with James Capozzola of The Rittenhouse Review, the topical humor site |||trr|||, and, of course, HorowitzWatch.

 
The burdens of barriers: Zambia, like several of its south African brethren, is in the midst of a humanitarian crisis of staggering proportions. The US has signed on to send almost 300,000 tons of food aid to the stricken states, but two weeks ago Zambia refused to accept 31,500 tons of corn (or maize, depending on your preference), because an unknown amount -- the US doesn't discriminate between crop origin -- is genetically modified.

Even the most hardcore anti-GM activist might accept the proposition that eating something is better than eating nothing at all, but Zambia's refusal has little if anything to do with health concerns, statements by their ambassador to London notwithstanding. Indeed, in July the government overturned an existing ban on imported GM foods -- genetically-modified yellow corn from America is about 30% cheaper than South African white corn; if transportation costs are factored out, it's about 60% cheaper -- before flipping its position again this month. Previously, Zambia had also been a testing ground for Monsanto-developed GM cotton (the trials were abandoned because of Zambia's poor regulatory environment, and successfully reconvened in South Africa).

What the country is really worried about is its burgeoning export industry to the EU. Despite the starvation of its people, Zambia is still the second-largest food exporter in the COMESA regional market, and the EU is an increasingly important trade partner.¹ Fear that GM seeds could end up being planted and become part of the nation's foodstock has spurred worries that Europe, which has stringent rules on the import and use of GM foods, could lock the impoverished country out of its market. The strongest advocates of refusing food aid have been Zambia's agribusinesses, such as Agriflora (part of the regional Trans-Zambezi Industries conglomerate) who stand to lose the most from a slump in Zambian-European trade.

It's tempting to take to task European-owned and managed companies like Agriflora for allowing starvation to protect their profit margins. Indeed, one of the great ironies in this case is the number of anti-GM activists who hold up international agribusinesses as champions of the environment, while lambasting America for providing humanitarian aid. But it's also true that the people who work for those companies also care about the crisis, and, putting bootless worries about genetically-modified foods aside, they have a point that is at least worth arguing when they warn that reducing exports to Europe could be worse than refusing short-term food aid. The real enemy in this case is the anti-GM wall that surrounds Europe, a trade barrier that may placate vocal Greens on its interior, but leaves the developing world hungrier than ever.

That's what I get for taking time off. A month late and seven billion dollars short (or misallocated) but here's a David Horowitz piece on some notes I made regarding his past at Ramparts. Horowitz makes some points worth discussing -- though not, I fear, at 4:30 on a Friday afternoon. (Still, I really feel I should reply sometime before the month is out. So much for the vaunted timeliness of the Internet!)

 
Polled together, pushed apart. Howard Bashman (of How Appealing) has a piece in Slate that argues against that perennial bugaboo, judicial legislation, using last term's Atkins case as a starting point. (See our own take on Atkins here.)

Bashman's basic points are that "Whether one believes that the meaning of the Constitution is static and immutable or continuously evolving, turning to the blunt instrument of opinion polls ... produces a Constitution whose meaning is always in flux," and that the practice of "an unelected federal judiciary [being] responsible for resolving the most politically and socially divisive issues of our time" ends up only polarizing the electorate. Both are points well taken, but neither is simple.

Bashman's first argument is that attempting to divine rights law by way of public opinion is "unprincipled vacillation" yoked to constantly changing, and often contradictory, public desires. While this is certainly true, it is also a trivial point, since Bashman does not, and in the context of his article should not, offer any countervailing theories of rights.

It is his next point that is particularly interesting, and that forms the real muscle and sinew of his article. Bashman argues that "constitutionalizing" unenumerated rights, such as those surrounding abortion, even when the legal results are close to those generally desired by society, may "caus[e] a national trend to become a national lightning rod." For example, Roe v. Wade was decided "just as many states were already in the process of discarding the most opprobrious of the abortion restrictions then in existence," but the insertion of judicial fiat in what was generally assumed to be a legislative sphere resulted in those "passionately opposed to abortion ...band[ying] together to concentrate as much support as possible in favor of anti-abortion candidates for public office. ... Removing the right to abortion from the legislative process has thus made anti-abortion activists more politically powerful than they otherwise would have been had abortion rights been up for grabs each time citizens trekked to the voting booth."

This makes for a nice and subtle twist; by adding its weight to a political argument, the Court lulls one side to complacency while forcing the other to single-issue radicalism. What makes this assertion so contentious is that it strikes at some of our most cherished views of the law. Just how deeply it slices can be seen by changing our focus from one of the more controversial decisions, Roe v. Wade, to one of the most hailed, Brown v. Kansas Board of Education.

The Court struck down the Plessy body of law with Brown at a time when public attitudes were already changing, civil rights activism was on the rise, and steps -- small steps, to be sure -- were being made to integrate facilities. Browder v. Gayle came as society was haltingly removing commercial barriers to integration. Perhaps -- there is controversy on this point -- the Court's rulings hastened the process of integration, but it did not initiate it. Indeed, a strong case has been made for the opposite effect: as Bashman argues in relation to Roe v. Wade, the civil rights rulings served to spur little positive change, but may have focused and intensified violence against civil rights activists. (Likewise, Donald Horowitz, in his The Courts and Social Policy -- hardly a clarion call against judicial legislation -- examines judicial attempts to legislate greater procedural protections within the criminal justice system, and concludes that they had little positive effect on the actions of police at the street level.)

I should step back for a moment to make one thing clear: from a moral perspective, there is no question that decisions such as Brown and Browder were utterly correct. But as counterintuitive as it may seem, it is possible for a decision to be morally defensible but not justified within the bounds of political philosophy, principle, and practice. To what extent does morality trump procedural concerns?

Because of the changing nature of society during the civil rights decisions, we can now move to the question of whether it is the place of the courts to move to correct a wrong with maximum speed when the political process is already moving in that direction (I'm deliberately stepping around the question of times when there is little or no inclination to make changes -- Griswold privacy and the like are worth a thousand blogs on their own merits).

On the one hand, we can observe that democracies cannot and do not guarantee that any outcome will be arrived at on an immediate, or even near-term basis, even if the continued absence of that outcome is morally repugnant. If the slow wheels of democracy are turning in the appropriate direction, should the courts interfere to hasten the decision? In a case such as Brown, which rested upon legal realist, not formalist, doctrines, the issue is even more pointed.

On the other hand, one might appeal to Gladstone's epigraph, "Justice delayed is justice denied." If the courts had only ruled after a political consensus had been reached, integration might have been even slower; had they never ruled at all, some communities even today might still be segregated, although they would certainly be so marginalized as to not even register on national, or even regional, scales.¹ But even so, one can't shake the feeling that the court is acting as a bully pulpit in such cases, a right that was never imputed to them under the Constitution.

There is no easy resolution to these questions under most interpretations of American rights law, and one suspects that there is no single answer for any given rights problem. But Bashman raises a set of questions that are all too often ignored when courts create fiat rights, or develop social policy that goes beyond traditional formalist constraints.



¹

 
Wild Pitches: The Weekly Standard is running a reprint of a '98 Krauthammer piece on the decline of baseball, a "game of the past." If you're anxiously watching the strike clock, be sure to check out sports business analyst and SABRmetrician Doug Pappas' page on baseball economics, including a summary of the labor talks and a weblog.

 
A century of evasion. Filmmaker and visual apologist for the Third Reich, Leni Riefenstahl, is one hundred today.

Return to rule? A fascinating piece at MEMRI considers the possibly of a return to Hashemite rule, ended by a Communist coup in 1958 that eventually led to the ascent of the Baath party and Saddam Hussein. This isn't precisely a new story, since the groundwork for a return to Hashemite rule was laid some six years ago by the late King Husayn, but recent events may lend impetus to one of the few post-Hussein governments that might be equally acceptable to America, the Arab states, and the Iraqi citizenry.

Addendum: David Pryce-Jones at NRO also has an article on this subject, with interesting insight as to why King Abdullah might not want to continue the Hashemite legitimation begun by his father.

 
Get on board the Soul Train -- or else. I'm not sure there's any comment I can offer regarding this bizarre story that might add any value, but it's worth posting nonetheless.

 
The last haven: The WP fronts word that Al Qaeda members, including senior leadership, have taken shelter in Iraq; Iraq's foreign affairs point man Tariq Aziz says the terrorists are in a northern part of the country that "is not under the control of the government."

Credit where credit's, deux. Maureen Dowd has a typically snarky piece in today's NYT, but the points it raises are still valid: the Administration is leaving the military behind on the road to Baghdad, and the consequences could be severe.

 
Richard Dawkins is a great scientist, a terrible political theorist, and dead-on when it comes to educational reform. His latest article for the popular press details what's gone wrong -- or, more precisely, what could yet go right -- with education, his inspiration being almost a century old.

 
Wedding Knell: The NYT's Style section will now feature same sex couples as well as more traditional weddings. According to Raines,

We recognize that the society remains divided about the legal and religious definition of marriage, and our news columns will remain impartial in that debate, reporting fully on all points of view. The Styles pages will treat same-sex celebrations as a discrete phenomenon meriting coverage in their own right.

Of course, by doing this, the paper has taken a side on the issue: gay couples deserve social parity with heterosexual couples. While I agree with this stance, the fact is that either a majority or a plurality of American society -- depending on the poll used -- opposes sanctioning gay marriages or civil unions. Such is the state of neutrality in today's Times.

Perhaps a better answer would be to follow Tim Noah's advice: dump the Weddings section altogether. A quick glance at the current wedding announcements shows that the page really is just an ego wall for insider matches, featuring media executives, Wall Street wizards, and the children of, amongst others, "the chief executive of Engine Components," "a founder [and former chair] of Micron Technology," "a vice president and an assistant general counsel at I.B.M.," "a senior financial and credit analyst at the Export-Import Bank," "a managing director and the chairman of the investment banking division of Goldman, Sachs & Company ... [and] a trustee of the Roundabout Theater, the Whitney Museum of American Art, Boys and Girls Harbor and Wesleyan University," and so on. But the classic announcment has to be this:

Jessica Gibson, the daughter of "Good Morning America" host Charles Gibson, met Robert Rosen in Guatemala where they worked on an advance mission for a visit by President Bill Clinton.

Truly a newspaper addressing the concerns of average America. I hope I'll soon see a listing of my friends' upcoming wedding at their African Methodist Episcopal church in southern Virginia.