Saturday, November 11, 2006

Election 2006 not over yet


The 2006 Election is not over. This Associated Press article says at one point that eight races are undecided, and at another point that the Democrats lead in two undecided races while the Republicans lead in seven, for a total of nine.

The media is paying less attention to these races because it is clear that both the House and Senate will be controlled by the Democrats. Nevertheless, the difference between a House majority of 230 and a potential House majority of 238 (or 239) can be quite important. For one thing, it gives House leaders a greater chance to form majorities on close votes. For another, it insulates the majority party from attrition in subsequent elections. As I noted before the elections, the Republicans never held more than 232 seats in the House after their 1994 victory. This made it easier than it would otherwise have been for the Democrats to retake control in 2006.

Think of House seats as a sort of random walk. Some years, because of contingencies, one party gains 10 seats, another year, the opposite party gains 10. These variations won't change control of the House if the initial majority is large enough. But the Republicans never had a very large majority judged by historical standards. For example, in 2006, the Democrats had to gain 15 seats to regain the House; that is not a very large margin historically. During the long period of Democratic dominance, the majority party usually had at least 250 seats, and often considerably more.

Gerrymandering can help keep majorities in place, but gerrymanders work more like an insurance policy rather than a guarantee. The more undecided seats that Democrats take in the next few weeks, the more likely they can weather the expected swings in future years.

Thursday, November 09, 2006

Two New Online Legal Publications


Northwestern Law Review has started a new online journal, Northwestern Colloquy, featuring short articles on legal topics. The current issue features an essay on the Kelo decision.

Opening Argument, a magazine featuring debates on current topics and associated with Yale Law School, has now gone online. The latest issue features a debate over the future of the Democratic Party.

The Democratic policy agenda is shaped by the Democratic coalition-- and vice versa


Steve Teles has advice for Democrats about what to tackle first when they take over in January. His list includes (in this order): lobbying reform, earmark reform, reform of the House Ethics Committee, immigration reform, allowing the government to negotiate drug prices in Medicare Part D, an increase in the minimum wage, and implementing the remaining recommendations of the 9-11 commission. Only then, he argues, should the Dems talk about Social Security and Iraq.

Whether or not one agrees with this particular sequence of legislative initiatives, you will note the almost complete absence of social/cultural issues like gay rights and abortion in Teles' list. I assume that is because Teles thinks that the Democrats should try to forge a new coalition that foregrounds good government, economic justice, and sensible homeland security policy rather than the issues that cultural liberals particularly care about. On the larger question of what the "new" Democratic party coalition will primarily focus on, I expect Teles is mostly right. Nancy Pelosi, Bob Casey, and the Blue Dog Democrats can all work together as a party if they focus on good government and bread and butter issues, and put the hot button cultural issues on the back burner. That is what will help keep their coalition together.

Put another way, the Democratic policy agenda will be shaped by the Democratic coalition, in no small part because the Democratic coalition will be preserved or destroyed by the choice of Democratic policy agendas.

Republicans, one assumes, already have anticipated this strategy. They will do their best to put cultural wedge issues involving sexuality and religion on the public agenda, as they successfully did before in the past twenty five years. Because they don't have to keep their coalition together to govern, this will be somewhat easier to do. The question is whether the Democrats can control the policy agenda and move it away from these hot button cultural issues. If they can't do this, then they won't be able to keep their majority.

All this means that on some issues-- like passing the Employment Non-Discrimination Act and reforming the Military Commissions Act-- folks like me probably won't be entirely happy with the new Democratic Congress, which probably won't take these topics on, despite the manifest injustices involved. Moreover, I expect that President Bush would probably veto any reform of the MCA and would also probably veto any attempt to pass ENDA. Remedying these injustices will probably take a Democratic president, and that can't happen until at least 2008. People who care about these issues, as I do, will have to exercise patience and give the new Democratic coalition the opportunity to win the trust and confidence of the American people. Only time will tell whether this patience is rewarded.

Wednesday, November 08, 2006

This Might Be the Most Important Development of All from Yesterday's Election

Marty Lederman

A major shift of power in state legislatures and governorships -- which can, of course, have a profound impact on a party's federal congressional prospects in the years to come, by virtue of the control over redistricting. (Ask Tom DeLay.)

Our Weird and Wacky (and Indefensible?) Senate

Marty Lederman

I wrote a friend of mine this morning to congratulate her on winning her first electoral race -- for school board of our county -- and mentioned in passing how remarkable it was that she had garnered in the vicinity of 125,000 votes. A few minutes later, I happened to notice that Craig Thomas of Wyoming had won relection to the Senate -- the United States Senate -- with a landside (70%) victory consisting of 134,942 votes.

The winner of our nice little neighborhood school-board election received almost as many votes as . . . the next Senator from the great State of Wyoming!

And then my eyes wandered up to the totals for the New York Senate race, where Hillary Clinton had a lower percentage of the vote than Senator Craig ("only" 67%), but received upward of 2.8 million votes. And yet Senators Clinton and Craig will have the same voting power in the Senate (and if they were in the same party, one would not necessarily have any greater perqs than the other).

Is there any way to defend the two-Senator rule of Article I, section 3, clause 1 (and of the Seventeenth Amendment) in this day and age, with voting discrepancies such as this -- upward of 20 to 1? The Democrats captured 32 million total Senate votes yesterday, to 24 million for the Republican candidates -- and taking the past three elections (i.e., all 100 Senate seats) combined, they're ahead by about 91 million to 81 million . . . and yet the power that comes with the majority would be lost with a flip of a mere 1500 votes in Montana.

That's a cue for Sandy and his new book (pictured at right). I don't agree with him that a constitutional convention would be a good idea -- I'm not even sure such a convention would seriously consider changing the two-Senator rule, which most citizens now take for granted as if it's a birthright -- but it's awfully hard to argue with his view that there are some ridiculously obsolete and indefensible provisions right at the core of our Constitution.

The View From Massachusetts

Mark Graber

One of the more stunning outcomes of the midterm election is how noncompetitive the Republican Party was in New England Congressional elections. Assuming Connecticut-2 holds up, New England will send 21 Democrats and only 1 Republican (Christopher Shays) to Congress next year. The results in Massachusetts were particularly startling. Republicans competed in only three of the ten Congressional districts in Massachusetts. The best they did was 30% of the vote. And only 1 non-Republican incumbent in New England beat that total. Indeed, a quick down and dirty analysis suggests that Republicans would only be entitled to 4-5 seats in New England on a proportional voting scheme (maybe 6 because they would actually be on the ballot in uncontested districts).

The good news is that this suggests not only will New England congressional delegations be solidly blue for years to come, but they are likely to be a fairly liberal shade of blue. In non-competitive districts, the real election is in the primary and the primary electorate in the numerous non-competitive New England districts (and increasing number of non-competitive districts in the East) is likely to push candidates to the left.

The good news, however, may also be bad news. The increase in safe Democratic northern seats, some voting evidence suggests, corresponds to an increase in safe Republican southern seats. The same phenomenon that pushes Democrats to the left in New England is likely to keep Republicans fairly far right in the South. No doubt gerrymandering exacerbates this problem, but as the 2006 Massachusetts congressional election suggests, the real problem is that each party is increasingly establishing sectional hegemony, a hegemony which threatens to send more and more extreme representatives to Congress.

Sandy Levinson is quite fond of pointing to democratic weaknesses in the constitution, practices that thwart majorities. This may be a consociational weakness, a set of institutions that make compromise more difficult. A constitution in which every member of the national legislature is elected in a local election, when the polity is polarized sectionally, is likely to generate governing officials who tend to be more extreme on the left and the right than the average citizen. One of the arguments of Part II in the sacred Dred Scott text (now less than $16.00 at Amazon--if the present pricing trends continue, they will soon be paying you to take the book off their hands!), is that the Civil War happened in 1860 (rather than later), largely because of constitutional institutions that fostered sectional extremism. For all the talk of moderation by the talking heads last night, the New England election returns suggest that we may have less rather than more centrist candidates in the near future, particularly in the House of Representatives.


Sandy Levinson

I note that both Virginia and Montana have third party candidates for the Senate who have won enough votes possibly to affect the election. A so-called "Green" candidate in Virginia (not actually affiliated with the national Green Party) has won about 25,000 votes, more than the margin between Webb and Allen. There's no particularly way of knowing how her votes would break were she not in the race: she's a former Pentagon analyst who apparently ran on a platform of fiscal responsibility and a high-speed transportation network for northern Virginia. In Montana, the Libertarian candidate got 2.1% of the vote, far more than the margin between Treaster and Burns. I assume that most of those votes would have gone to Burns had it been a forced choice. And, of course, everyone remembers the fiasco of 2000. Might this not be a propitious moment for a bipartisan coalition to propose the Alternative Transferrable Vote as a way of 1) eliminating the role of "spoilers" and b) at the very same time, encouraging third party critics of the ossified two party system to run their races and make their pitches. The ATV allows voters to rank order their favorites. If their #1 choice comes in last (in a three-person race, for ease of analysis), then the #2 choice is counted. This results in a winner who has the most plausible claim to being the genuine choice of the majority, unlike the First Past the Post System, which guarantees the frustration of majority will with some regularity

The point is well illustrated in the Texas gubernatorial race, where the distribution of votes was

RICK PERRY (R) 39 percent

CHRIS BELL (D) 30 percent


KINKY FRIEDMAN (I) 12 percent

JAMES WERNER (L) 1 percent

In a system where the loser drops out, one has to assume that almost all of Friedman's votes would have gone to Bell. Then, with Strayhorn now the lowest person, one might assume a relatively even split, since her insurgency candidacy (she had been elected to state-wide office as a Republican) was built on opposition to Perry. This could well have given Bell a majority. In a more complicated voting system, where each voter rank orders and one assigns initial votes on the basis, say, of 5 votes for #1 preference, 4 for #2 and so on through the five candidates on the ballot, Straynorn could easily have won, since most of the Bell voters would probably have had her as their second preference. What's interesting is that Perry would quite likely have lost in any system other than First Past the Post. In any event, this is ample proof that the system of voting matters with regard to producing winners, who may or may not plausibly be said to represent majority sentiment. Is there any good reason to prefer a system that results in some predictable incidence of disdain for majority sentiment over one that guarantees a more majoritarian result? I can't think of one (save for arguments made by ethnic minorities that they can occasionally win elections if the "majority" coalition is split between two whites).

I presume that none of my "republican" critics, who believe that I am too pro-democratic in my view of the Constitution, can plausibly criticize this proposal as the end of the Republican Form of Government.

Newsflash: The Markets Have Decisively Called the Senate for the Democrats

Ian Ayres

While the major news media suggest that it's up in the air, hinging on both Montana and Virgina. The markets are suggesting that the democrats have won 49 + 2 independents.

Tradesports is saying that probability of Democratic control is 89.8% [The Senate control contracts count 50/50 split as republican control because of Cheney, so this is probability of 51 senators caucusing with democrats]
Probability of Tester winning Montana is 94.7%
Probability of Webb winning Virginia is 96.5 %

You can see the latest prices/probabilities for all three by clicking here.
The markets have spoken.
If you disagree, there's a lot of money to be made.

South Dakota Abortion Ban Rejected


Among the many ballot measures before the voters last night was the fate of South Dakota's new abortion law, which would have banned abortions except where necessary to save the mother's life. The measure was rejected by the voters, USA Today reports.
The Legislature passed the law last winter in an attempt to prompt a court challenge aimed at getting the U.S. Supreme Court to overturn its 1973 Roe v. Wade decision that legalized abortion in the nation.

Instead of filing a lawsuit, however, opponents gathered petition signatures to place the measure on the general election ballot for a statewide vote.

The campaign turned quickly from the overall issue of abortion rights when opponents attacked the law as extreme, arguing that it goes too far because it would not allow abortions in cases of rape, incest or a threat to the life of a pregnant woman.

Supporters countered that the law would allow doctors to protect the lives of pregnant women with medical problems. They also argued that rape and incest victims would be protected by a provision that says nothing in the abortion ban would prevent women from getting emergency contraceptives up to the point a pregnancy could be determined.

One should not confuse the result in South Dakota with a full throated endorsement of either Roe or Casey. South Dakota is a very socially conservative state. Abortion rights are not popular there. It does suggest, though, that the strongest version of the pro-life position is in the minority even here.

Another interesting feature of the South Dakota law was that the legislative history behind the bill was premised not merely on the preservation of fetal life but also on the protection of women from abortions. A South Dakota Task Report (also available here) on which the law was based argued that women who consented to abortions suffered from what was, in effect, false consciousness. A woman by nature could not reasonably consent to the destruction of her child; if she did consent, she was either tricked or did not fully understand the nature of what she was doing. My colleague Reva Siegel (along with Sarah Blustain) explains the history of this measure in this American Prospect article.

Even though the South Dakota law went down to defeat, it signals an important shift in pro-life rhetoric, moving from arguments that the fetus is a person and abortion is murder to arguments that no women willingly choose abortion unless they are tricked into it or their will is overborne, and that abortion hurts women. This strategy tries to flip the idea of women's choice on its head: if abortion supporters argue that women have a right to choose to protect their interests, the new anti-abortion arguments counter that women's choice isn't free. As Siegel and Blustain explain:

Rejecting the finding of the American Psychological Association that abortion has "no lasting or significant health risks," the [South Dakota task] report argues that abortion inflicts grave psychological injuries on women, including bipolar disorder, depressive psychosis, neurotic depression, schizophrenia, guilt, anger, post-traumatic stress disorder, and suicidal ideation. The report finds that women who have abortions are more likely to have substance abuse problems, relationship and sexual problems, and parenting problems. Advocates describe these symptoms as a form of trauma they call post-abortion syndrome (PAS). Significantly, the task force argues that abortion causes PAS symptoms because abortion violates women's nature: "It is simply unrealistic to expect that a pregnant mother is capable of being involved in the termination of the life of her own child without risk of suffering significant psychological trauma and distress. To do so is beyond the normal, natural, and healthy capability of a woman whose natural instincts are to protect and nurture her child."

If women are not able to choose abortion, then someone must be making them choose it. And public enemy No. 1 in this campaign -- and in the task force report -- are abortion clinics, which push women into the procedure without providing them with information on the purported health risks or informing her that "the procedure would terminate the life of a human being." Indeed, the vision of women as victims, not agents, of choice is so stark that the report asserts that clinics lead unwitting women into acting contrary to their "very nature as a mother": "It is so far outside the normal conduct of a mother to implicate herself in the killing of her own child. Either the abortion provider must deceive the mother into thinking the unborn child does not yet exist, and thereby induce her consent without being informed, or the abortion provider must encourage her to defy her very nature as a mother to protect her child. Either way, this method of waiver denigrates her rights to reach a decision for herself."

In a much longer study of the South Dakota bill that will be published in Illinois Law Review as the annual Baum Lecture, Siegel points out that the new pro-life strategy is particularly important because it resurrects nineteenth century views about women's limited capacities to make choices. It also rests on the notion that it is women's inherent nature to bear children; women who try to avoid their nature are doomed to unhappiness and psychological and physical disease. This is a replay of the old "separate spheres" ideology of the nineteenth century that was used to justify not only restrictions on abortion but other civil and political rights for women. When an abortion ban like South Dakota's is justified on the grounds that it is against women's nature to want an abortion, Siegel argues, the law violates the Equal Protection Clause because it relies on stereotypical judgments about women. Although the Supreme Court has held that distinctions based on pregnancy are not per se sex discrimination, Siegel's point is that the rationale of the South Dakota law is unconstitutional not because it makes distinctions based on pregnancy but because it rests on paternalistic stereotypes about women's mental capacities for choice, agency, inherent nature, and true desires.

Tuesday, November 07, 2006

More thoughts on America and "losers"

Sandy Levinson

I think that Jack's posting immediately below is typically insightful about the dynamics of American politics. But it contains the equivalent of a ticking time bomb with regard to what the Democrats actually do when regaining power. Begin with two years ago: With regard to the war (and not, say, appointments to the Supreme Court or changes in administrative regulations involving environmental poicy), how many of you are really and truly sorry that John Kerry did not become President? Does anyone amongf us believe that the man who had no coherent policy on Iraq throughout his campaign would have so mesmerized the country upon taking the oath of office (as a minority president, relative to the popular vote, if his victory had been achieved by a switch of 75000 votes in Ohio) that he would have avoided being flayed by the same Republicans who are busy trying to figure out what to do with their own loser President? Wouldn't we have heard a steady diet of how the Repubicans would never have forced us into the position of a completely ignominious retreat, etc., etc.? Wouldn't Kerry be doomed to be a one-term president (possibly facing a primary challenger)?

This is why I continue to believe that Iraq is far, far more serious and catastrophic even than Vietnam, though, recall, that the death rate for Americans has been far less (in part because so many people are surviving a seriously wounded and maimed, with huge costs to the American economy and psyche in the next decades). The reason is, as I have argued earlier, is that one could coherently, albeit controversially, argue that we "deserved" to lose that war and that the world would be better, overall, if we did lose. Though there is obviously mixed evidence--think of the takeover of Cambodia by Pol Pot immediately after our withdrawal--one can argue that, overall, that's turned out to be the case. China is now being defended by Balkinization conservatives as a model of capitalist probity, thinking only of profit maximization, and Vietnam has recently been described in somewhat similar terms as a onrushing economic tiger.

No serious person can look forward to an American defeat in Iraq. It's one thing to label Bush and Rummy, correctly, as "losers" in the specific sense of being clueless as to how to proceed. It's another thing entirely to say that the American public is ready to accept a stunning loss in Iraq, with potentially devastating consequences for the region and the world (including, who knows, the use of oil as a weapon by regimes that are less neo-capitalist than China is now purported to be).

If the Democrats do take power, and if they hope to take the presidency, then they will have to come up with a coherent policy on how to explain the loss of the Iraq--and, possibly, the Afghan--War. I don't know that the public will settle for a "simply blame Republican incompetence" strategy if that is used to justify a Saigon-like hasty retreat from Baghdad. I have not detected general acceptance by Democrats of Rep. Murtha's views. Some President is going to have to explain to Americans that many of their sons, daughters, mothers, fathers, best friends, etc., basically died in vain because of bi-partisan cowardice and incompetence. I wouldn't want to be the Democrat who is charged with offering the explanation.

Happy election night!

A Brief History of Wedge Politics


Consider the different ways that a political party can gain a majority in a democracy. The most obvious way, and one that the Framers anticipated, was to appeal to divisions in wealth and income, hoping to gain the votes of the poor, working class and middle class against the interests of the wealthier parts of society. (At the time of the founding, people did not speak of class divisions in precisely this way, but the basic idea is the same, and that is one reason why they distrusted parties.)

Because the wealthy are smaller in number, this might seem to be a winning strategy (unless, that is, you can keep lots of poor and working class people from voting.) The party seen to represent the interests of the rich will always lose to the party of everyone else, if the opposition party can manage to split the vote in this way and form coalitions based along lines of class and wealth. The party of the rich can insist that there are no class divisions in America, and it can insist that what benefits the wealthy also benefits the average American. These strategies work suprisingly well in a country that does not like to view itself as divided by class, but they can only take you so far.

Hence the development of a more effective counter-strategy: the use of status conflict and status anxiety to divide the electorate in a different way, and seize the larger piece. A party that is seen to represent the interests of the rich can attempt to break up the opposition coalition based on class and wealth politics by making the most salient issues those that divide people along lines of race or religion, or that promote aggressive nationalism and xenophobia. If the party of the wealthy is successful in this attempt, it becomes the party more strongly identified with the interests of (for example) white people, religious Christians, or the fervently patriotic.

But that hardly ends the matter. This counter-strategy, in turn, leads to a counter-counter strategy. When alliances based on class politics have been fractured by status politics, there are two options. One is to try to make class issues salient once again (this worked during the Great Depression); the other is to find still other issues that can divide the electorate in a different way. There are two such issues: The first is corruption versus good government, the second is losers versus winners. People like governments they think are clean and moral, and they love winners, no matter how the victory is obtained. (Note the potential tension between these two statements). Conversely, people hate to be governed by corrupt officials or officials they think immoral; and even more than this, they hate to be governed by losers.

If the Democrats succeed in taking back one or more houses of Congress today, it will be because they effectively invoked this counter-counter-strategy. The Democrats will have defanged the counter-strategy of status politics and aggressive nationalism that had worked so well for the modern Republican Party since Richard Nixon by arguing (1) the Republicans are corrupt and venal; and (2) the Republicans are incompetent and have dragged America into a war in Iraq that they are losing and don't know how to win. Corruption isn't everything: Americans can forgive rascals who manage to win-- look at Bill Clinton-- but what they cannot abide is losers. And if you are viewed as both corrupt and a loser in American politics, then you are radioactive.

That is why it has not been enough for the Republicans to say that the Democrats don't have a plan to end the war in Iraq. What people understand is that the people in power are clueless, and are losers. Voters whose self-conception is tied up with being a proud part of the world's most powerful nation simply can't abide that. It may sound cruel to say it, but among the many things you can do to make people despise you, being seen as a loser is perhaps the most effective. The Democrats learned that lesson all too well in the past; now the Republicans are learning it too.

For some time Democrats have been looking for the magic elixir that will return them to majority status. Some thought it was becoming more like the Republicans on issues of the economy and religion; others thought it was moving even more strongly to the left, and still others thought it was seeking to heal divisions in society, calling for common values and common sacrifice. What ended up working for them was a little bit of everything, but most importantly, finding a new way to split the Republican coalition: not based on lines of class or status politics, but on the most basic things we expect from governments: don't be corrupt and don't be a loser.

Monday, November 06, 2006

Domain Napping (and Cresceat Sententia's New Address)


Will Baude writes that Cresceat Sententia has moved to As he explains,
In September, without my knowledge or consent, our old domain was purchased by a Search Engine Optimization firm that intends to make money by either reselling the domain for a pretty penny to somebody greedy for its pagerank, or by using that pagerank to sell links to sites eager to trick Google. The webpage up there now is not this blog (it's an old cache that he will have to take down soon), and this blog is the current and future home of crescat.

Because of the switcheroo, I can't post a notice over there telling everybody where we've gone, so we're reliant on people updating their blogrolls, and on word of mouth. With your help, hopefully we can minimize the disruption this has already caused.

If you are interested in the legal remedies for such a domain napping, read this post by Dan Solove over at Concurring Opinions and the comments that follow.

Sunday, November 05, 2006

George Bush and the revival of Marxism 101

Sandy Levinson

Today's Washingto Post includes a story with the telling title "Bush Says US Pullout Would Let Iraq Radicals Use Oil as Weapon." It includes the following paragraph:

"You can imagine a world in which these extremists and radicals got control of energy resources," he said at a rally here Saturday for Rep. Marilyn Musgrave (R-Colo.). "And then you can imagine them saying, 'We're going to pull a bunch of oil off the market to run your price of oil up unless you do the following. And the following would be along the lines of, well, 'Retreat and let us continue to expand our dark vision.' "

There is, no doubt, much to this argument. One can scarcely be happy with the prospect of the world's oil supply being increasingly controlled by Iran and groups basically loyal to Iran (or simply zealously anti-Western). That being said, one would think that the Administration might be at least as concerned about the extent to which the US economy, because of incredible fiscal irresponsibility on the part of the Bush Administration and its allies in Congress, is increasingly in thrall to those foreign states that have, for whatever reason, chosen to subsidize our national profligacy by buying American debt. The number one example, of course, is China, which could presumably trigger a collapse of the US economy by selling off the dollar and putting it into, say, Euros. Presumably they don't do that in part because it would harm their own economy (and, of course, they are hindered by being such a strong holder of dollars that could not, in fact, be sold overnight). But, then, Iran has no incentive to bring down the Western economy, only to profit as much as possible from selling oil to it.

One does wonder, of course, what sorts of deals are being made behind the scenes to keep China happy. Might this help to explain US reluctance to do anything really of substance in Darfur, a major source of oil for China? Who knows? But Bush's admission that the US is in fact vulnerable to those who control the means of production and/or the finance capital necessary to maintain a capitalist system (do I hear a revival of Marxism in the wings?) has all sorts of implications for envisioning the likely future of an America that has been subjected to the rule of mendacious incompetents like those who have been in power the past six years. What would a cogent economic policy look like in the age of globalization? I take it that visions of autonomy--whether sketched by Pat Buchanan or Ralph Nader--are increasingly untenable. So what does make sense? I assure you I mean this as a genuine question. Are we likely to hear a serious discussion of this in the runup to 2008 from any mainstream Republicans or Democrats?

The Haggard Story: Not Just Hypocrisy, But Lack of Self-Knowledge


The story of Ted Haggard's resignation from the Presidency of the National Association of Evangelicals and the leadership of the megachurch he founded reminds us that our political system and our cultural system have not yet caught up with a simple fact: there are a lot of gay and bisexual people in the United States.

Because in our country homosexuality has long been viewed as deviant and sinful, many of these people do not disclose their sexual orientation to others, while others are not even willing to admit it to themselves.

Instead, like Ted Haggard, they view their sexual orientation as a sin and a moral failing that they must constantly struggle against.

In fact, the very presence of these desires, which they conceptualize as sinful urgings, confirms in their mind how dangerous homosexuality is. Precisely because they possess these feelings, they know how close every human being is to sin. And therefore it becomes all the more important to denounce it, to fight it, and to prevent it from undermining the country.

If you start from the assumption that homosexuality is sinful, and you know that you have deep and powerful feelings of attraction to persons of the same sex, how can you not believe that the Devil himself is perpetually waiting outside your doorstep? How can you not fear that the country is on the verge of sliding into moral bankruptcy, for you are always on the brink yourself. And indeed, in Haggard's case, you have repeatedly fallen, and you can't stop falling.

Many progressives have never quite understood why the most vehement religious opponents of homosexuality view it as such a threat. I myself have always assumed that it is because religious opponents are devoted to the preservation of traditional gender roles, which sustain a male/female hierarchy. But the Ted Haggard story suggests a different reason-- at least for that segment of religious opponents who, like a significant proportion of the population generally, share same-sex or bisexual orientations and desires.

Viewed from Ted Haggard's perspective-- a man who, despite his shame and guilt, is attracted to other men-- gay marriage and the gay lifestyle really are a threat to heterosexual relationships and heterosexual marriage. That is because they are a threat to his heterosexual identity and his heterosexual marriage. He knows the Devil is always tracking him, waiting for him to slip up. That is because he conceptualizes his sexual desires as sin and as alienation from God, and not as the expressions of something that might actually become valuable to him if accepted them as part of himself. If Haggard accepted that he was bi-sexual or even gay, and that it was morally permissible to be either of these things, he would have to change his understandings of his own desires and what they mean. He would have to view himself and his relationship to God very differently. But he has not been able to accept these things, because he is closeted from himself. That is why he has been a vocal opponent of people he has a great deal in common with.

I don't know how many of the fiercest opponents of gay rights in the religious community have some same-sex desires. I only know that it makes perfect sense that among the very religious those with same-sex desires will be among the most vehement denouncers of gays. It is not simply hypocrisy-- it is also lack of self-knowledge.

The Haggard story is a story not only about Haggard, but about America itself. Our country has not yet accepted that it is morally ok to be gay or bi-sexual, even though America has millions of gay and bi-sexual people who are our friends, co-workers, and family members; moreover, we are a country with many gay and bi-sexual people who themselves won't accept that it is morally ok to be gay or bi-sexual. Therefore we as a nation hate ourselves, fear ourselves, fight ourselves and try to banish ourselves from the face of the earth. It should be obvious enough that such a strategy is doomed to failure, but the real tragedy is how long-- and at what cost in human suffering-- it will take us to recognize it.

Call Me Irresponsible

Ian Ayres

The infamous Call Me ad that the Republican National Committee ran against Democratic Tenessee Senatorial Candidate, Harold Ford, Jr., raises interesting question of both campaign finance and civil rights.

Ford's Republican opponent Bob Corker called upon the RNC to pull the ad. And the RNC did stop airing it. But Corker, in making his request, may have crossed the line and inappropriately coordinated with RNC. Coordinated expenditures are treated differently than independent expenditures. Just because the coordination was done in public does not exempt it from the law. It seems clear that Corker should be able to state his opinion about the content of the ad, but equally clear that he shouldn't be able to say "I call upon RNC to recut the ad with an African-American model" and still claim that the recut ad is an independent expenditure.

The civil rights issue is equally difficult. In someways, Democrats who charge that the ad is racist are saying "How dare the RNC insinuate the Ford DOESN'T discriminate." The claim is that the ad would have been less racist if it had used an African-American model to say the tag line "Call me." [It would might still be tacky and sexually inappropriate, but it would not be racist.] But why should it be troubling for the RNC to run an ad suggesting that Ford doesn't discriminate on the basis of race in deciding who to date? It's only troubling if voters think that not discriminating is wrong. Both candidates have been steadfast in refusing to respond to any of the questions about whether the ad is racist. But a more pointed question that the ad puts in play is to ask Corker and Ford whether they think there is anything wrong with whites and blacks dating. Or someone might still ask Corker, "Before you were married, would you have considered dating (or did you ever date) an African American?"

Two Texts: An Election Eve Meditation

Scott Horton

"It may be that despotizing moralists, in practice blundering, often violate rules of political prudence by taking or proposing decisions too quickly; but experience will gradually set them aright and lead them on to a better course. However, the moralizing politician, by glossing over principles of politics which are opposed to right with the pretext that human nature is not capable of the good as reason prescribes it, only makes reform impossible and perpetuates the violation of law.

"Instead of possessing the practical science they boast of, these politicians have only practices; they flatter the power which is then ruling so as not to be remiss in their private advantage, and they sacrifice the nation and, possibly, the whole world. This is the way of all professional lawyers (not legislators) when they go into politics. Their task is not to reason too nicely about the legislation but to execute the momentary commands on the statute books; consequently, the legal constitution in force at any time is to them the best, but when it is amended from above, this amendment always seems best, too. Thus everything is preserved in its accustomed mechanical order. Their adroitness in fitting into all circumstances gives them the illusion of being able to judge constitutional principles according to concepts of right (not empirically, but a priori). They make a great show of understanding men (which is certainly something to be expected of them, since they have to deal with so many) without understanding man and what can be made of him, for they lack the superior perspective of anthropological observation which is needed for this. If with these ideas they go into civil and international law, as reason prescribes it, they take this step in a spirit of chicanery, for they still follow their accustomed mechanical routine of despotically imposed coercive laws in a field where only concepts of reason can establish a legal compulsion according to the principles of freedom, under which alone a just and durable constitution is possible. In this field the pretended practical man thinks he can solve the problem of establishing such a constitution without the rational idea but solely from the experience he has had with what was previously the most lasting constitutions constitution which in many cases was opposed to the right.

"The maxims which he makes use of (though he does not divulge them) are, roughly speaking, the following sophisms:

"1. Fac et excusa. Seize every favorable opportunity for usurping the right of the state over its own people or over a neighboring people; the justification will be easier and more elegant ex post facto, and the power can be more easily glossed over, especially when the supreme power in the state is also the legislative authority which must be obeyed without argument. It is much more difficult to do the violence when one has first to wait upon the consideration of convincing arguments and to meet them with counterarguments. Boldness itself gives the appearance of inner conviction of the legitimacy of the deed, and the god of success is afterward the best advocate.

"2. Si fecisti, nega. What you have committed, deny that it was your fault--for instance, that you have brought your people to despair and hence to rebellion. Rather assert that it was due to the obstinacy of your subjects; or, if you have conquered a neighboring nation, say that the fault lies in the nature of man, who, if not met by force, can be counted on to make use of it to conquer you.

"3. Divide et impera. That is, if there are certain privileged persons in your nation who have chosen you as their chief (primus inter pares), set them at variance with one another and embroil them with the people. Show the latter visions of greater freedom, and all will soon depend on your untrammeled will. Or if it is foreign states that concern you, it is a pretty safe means to sow discord among them so that, by seeming to protect the weaker, you can conquer them one after another.

"Certainly no one is now the dupe of these political maxims, for they are already universally known. Nor are they blushed at, as if their injustice were too glaring, for great powers blush only at the judgment of other great powers but not at that of the common masses. It is not that they are ashamed of revealing such principles (for all of them are in the same boat with respect to the morality of their maxims); they are ashamed only when these maxims fail, for they still have political honor which cannot be disputed--and this honor is the aggrandizement of their power by whatever means.

"All these twistings and turnings of an immoral doctrine of prudence in leading men from their natural state of war to a state of peace prove at least that men in both their private and their public relationships cannot reject the concept of right or trust themselves openly to establish politics merely on the artifices of prudence. Thus they do not refuse obedience to the concept of public law, which is especially manifest in international law; on the contrary, they give all due honor to it, even when they are inventing a hundred pretenses and subterfuges to escape from it in practice, imputing its authority, as the source and union of all laws, to crafty force.

"Let us put an end to this sophism, if not to the injustice it protects, and force the false representatives of power to confess that they do not plead in favor of the right but in favor of might. This is revealed in the imperious tone they assume as if they themselves could command the right. Let us remove the delusion by which they and others are duped, and discover the supreme principle from which the intention to perpetual peace stems. Let us show that everything evil which stands in its way derives from the fact that the political moralist begins where the moral politician would correctly leave off, and that, since he thus subordinates principles to the end (putting the cart before the horse), he vitiates his own purpose of bringing politics into agreement with morality."

- Immanuel Kant, Zum ewigen Frieden – II. Anhang über die Mißhelligkeit zwischen Moral und Politik (1795) in Sämtliche Werke (Großherzog Wilhelm Ernst ed.), vol. 5, pp. 695-97

"Political realism refuses to identify the moral aspirations of a particular nation with the moral laws that govern the universe. As it distinguishes between truth and opinion, so it distinguishes between truth and idolatry. All nations are tempted--and few have been able to resist the temptation for long--to clothe their own particular aspirations and actions in the moral purposes of the universe. To know that nations are subject to the moral law is one thing, while to pretend to know with certainty what is good and evil in the relations among nations is quite another. There is a world of difference between the belief that all nations stand under the judgment of God, inscrutable to the human mind, and the blasphemous conviction that God is always on one's side and that what one wills oneself cannot fail to be willed by God also.

"The lighthearted equation between a particular nationalism and the counsels of Providence is morally indefensible, for it is that very sin of pride against which the Greek tragedians and the Biblical prophets have warned rulers and ruled. That equation is also politically pernicious, for it is liable to engender the distortion in judgment which, in the blindness of crusading frenzy, destroys nations and civilizations-in the name of moral principle, ideal, or God himself."

- Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York: Alfred A. Knopf, 1978, pp. 10-11).

In one day, America votes. This election cannot be viewed as a series of individual candidates contesting specific seats, though American tradition counsels such an approach. It must instead be viewed as a referendum on George W. Bush, Dick Cheney and Donald Rumsfeld, the troika who have wielded America's awesome power in a series of historic misadventures. This is what Bush called an "accountability moment." As my friend Andrew Sullivan says, it is an opportunity for an intervention of the sort that social workers counsel for alcoholics and drug addicts. An intervention for those intoxicated with a lust for power. At this juncture it is important to see Bush and his conduct with some rigor and clarity, but also to consider the moral underpinnings of his actions. For this I propose that we look to the great moral philosopher Immanuel Kant, the man whose writings provided the fundamental architecture for the world order that emerged following the Second World War.

Kant welcomes the political moralist, but he warns us ardently of the moralizing politician, a species best viewed with great circumspection. In a fascinating passage of the Appendix on Divergences Between Politics and Morals, Kant gives us some practical tools. When can we distinguish between the two? How can we identify the wolf in sheep's clothing who presents himself on the public stage as a man of morals but in fact is morally corrupt? There is, writes Kant, a three-part test that gives us an unfailing peek at the political scoundrel.

First, does he seek every opportunity to assert the right of the state he controls over its own people and over other peoples? This is a question of aggrandizement of power, but for Kant it must be measured simultaneously – against his own people, and against other states.

Second, does he accept the principle of accountability for his own misdeeds – or does he in fact try to pass off to others every mistake that occurs?

Third, does he rule through the sowing of discord and division? After coming to power, does he identify other potential rivals to power and attack them or set them to battle, one against the other? Is he a "divider" or a "uniter" of his people?

America in its history has known great, mediocre and truly lamentable presidents. But in its entire history, America has had only one leader who clearly passes Kant's three-point test to detect the political scoundrel. His name is George W Bush. Is it even necessary to reherse the test?

First, Bush more than any other leader in the nation's history has asserted an ahistorical theory of presidential power, claiming ascendancy over the other branches of government and the right to act above the law, even in violation of the criminal law. This asserted tyrannical power is aimed both at the American republic, and even more menacingly, at states abroad. The fundamental strictures of skepticism and care are disregarded. The vital role of public debate and discourse as a precursor to use of the awesome war-making powers is corrupted. An Orwellian National Surveillance State is being crafted, the extent of which few in this country appreciate.

Second, Bush's refusal to accept responsibility for his erroneous judgments is now legendary. Hurricane Katrina was a defining moment for most Americans. But in this election, the war in Iraq reflects colossal, tragic misjudgments that have brought ruin and destruction to the Middle East and cost America immense blood and treasure. Yet, even now, Bush lies about the situation, talks about "winning" and "victory" and calls the performance of his Secretary of Defense "fantastic." (Which as Christopher Hitchens notes, it literally is, namely performance based on fantasy rather than reality).

Third, as the New York Times recently observed in an editorial, the historical moniker for Bush is now fixed: he is the Great Divider. No president has consciously worked to vilify his political rivals in quite so disgraceful and destructive a fashion as he has. He has been enabled in this horrifying project by a press which was pliant for six years, and only now shows ambiguous signs of awakening from an extended trance. Too late, perhaps.

Bush can be judged by his words and his conduct. More precisely, his words should be weighed against his conduct, as Hans Morgenthau writes. With some prompting from Greg Djerejian, I include his thoughts here for this proposition. Morgenthau may well be the anti-idealist; the anti-Kant. He is nevertheless a powerful and important thinker. And he too grasps the proper role of morality and the critical need to form careful judgments about those who cloak themselves in moralizing garb. Is his view fundamentally all that different from Kant's? Not on this point.

I fear for my country at this time. I fear for all of us and our world. Many of you may disagree with me. But I ask all to weigh this vote with care. This vote may be your last.