Jack Balkim on Obergefell, the Supreme Court decision that made gay marriage legal in the US:
Continual interactions between culture, law, and politics gradually reshape constitutional common sense, thus enabling and authorizing lawyers and judges--not just Anthony Kennedy--to reach changed constitutional conclusions about the best interpretation of the Constitution. To be influenced by these changes, lawyers and judges do not have to watch-- or even care about-- public opinion polls. All they need do is live and participate in a larger culture. Through their everyday efforts at argument and persuasion, Lawyers and judges inevitably translate changing values into constitutional language. They then claim that democracy must yield to fundamental rights, but the source of fundamental legal rights--or, more correctly, new interpretations of these fundamental rights--has been processes of social influence.
Post and Siegel rightly call this a democratic constitutionalism. This process of social influence is “democratic” in the sense that it is interactive and participatory on multiple levels. But it is not “democratic” in the sense that judges are responding directly to elections and the wishes of either politicians or public opinion. Nor is it "democratic" in the sense that judges are mirrors or representatives of the public. The courts are players in constitutional politics, not mirrors of public opinion. Nevertheless, they live in the same culture as politicians and ordinary citizens. When judges make decisions like Obergefell, there is often significant public support for what they do, but there is also usually a substantial segment of public opinion that strongly disagrees—and there are usually politicians who view the Court’s decisions as an opportunity to mobilize against the Court and change constitutional common-sense. Successful mobilization, in turn, may lead to changes in attitudes about the wisdom of constitutional precedents, and so the process continues.
We live in a country where Americans assimilate corpses in their daily comings and goings. Dead blacks are a part of normal life here. Dying in ship hulls, tossed into the Atlantic, hanging from trees, beaten, shot in churches, gunned down by the police or warehoused in prisons: Historically, there is no quotidian without the enslaved, chained or dead black body to gaze upon or to hear about or to position a self against. When blacks become overwhelmed by our culture’s disorder and protest (ultimately to our own detriment, because protest gives the police justification to militarize, as they did in Ferguson), the wrongheaded question that is asked is, What kind of savages are we? Rather than, What kind of country do we live in?
Sugary excerpt of the best post I read last week from the always interesting Corey Robin connecting Hannah Arendt and Philip Roth:
(...) one of the motifs of Operation Shylock is narrator Roth’s ongoing attempt to establish the credibility of his own existence against that of the impostor Roth. “Up against reality,” says narrator Roth, “I had at my disposal the strongest weapon in anyone’s arsenal: my own reality.” That is also one of the themes of Eichmann in Jerusalem: the difficulty—and importance—of establishing the credibility of one’s own existence. Eichmann, says Arendt, had almost no sense of reality, no sense of right and wrong, apart from the opinion of others. His others, that is: the higher-ups in the Nazi hierarchy. And while Arendt is scorching on the subject of Eichmann’s conformity to his superiors’ views, she carries on, in good Rothian fashion, her own counterpoint to the problem of conformity. It is critical, she says, that as we form our own opinions about the world, we attend to the views of others about that world. Attending to those views, without getting lost in them, is the foundation of human judgment. The counterpoint of these two lines—Eichmann’s dissolution in the views of others, the necessity of attending to the views of others without getting lost in them—is the music of Eichmann in Jerusalem.
(...) federal prosecutors virtually never target marijuana possession by students on college campuses, even though such use is widespread and ubiquitous. Indeed, the number of people -- including the last three presidents of the United States -- who have gotten away with violating federal law in this way probably greatly exceeds the number exempted from deportation by Obama’s new immigration policy.
Racism introduces absurdity into the human condition, (...)Not only does racism express the absurdity of the racists, but it generates absurdity in the victims. And the absurdity of the victims intensifies the absurdity of the racists, ad infinitum. If one lives in a country where racism is held valid and practiced in all ways of life, eventually, no matter whether one is a racist or a victim, one comes to feel the absurdity of life.
But beyond that, we’re also witnessing the unravelling of the West’s power, the dissipation of its ability to influence and order world affairs. Gone are the days when the likes of America or Britain could carve up the region according to their interests, building kingdoms out of the post-imperial, and in Yemen’s case, post-Ottoman dust. Gone even are the more recent post-Vietnam days when Western powers could shore up a favourable regime with finance and arms, or undermine an unfavourable one by financing and arming its opponents. This isn’t to say the meddling and intervening has ceased. As the past 20-odd years have amply and brutally illustrated, Western intervention continues. But it does so without a clear material rationale, without authority, and without conviction. It is marked by do-gooding postures, and clueless, time-tabled practice.
Close but not quite for powerlessness here has everything to do with hubris and incompetence!
And the riots in Baltimore, destructive as they are, have served at least one useful purpose: drawing attention to the grotesque inequalities that poison the lives of too many Americans.
Yet I do worry that the centrality of race and racism to this particular story may convey the false impression that debilitating poverty and alienation from society are uniquely black experiences. In fact, much though by no means all of the horror one sees in Baltimore and many other places is really about class, about the devastating effects of extreme and rising inequality.
Charlie’s defenders tend to make three arguments: first, that they are the continuation of a long line of French satirists, from Voltaire on. (To which one can only sigh: poor France!) Second, that they are ‘equal opportunity’ offenders. This neatly avoids the fact that, for a bunch of white guys in a Catholic country, making fun of the pope is not the same as categorising a beleaguered minority in that country as moronic towel-heads. Third, we have been told that Charlie is actually anti-racist. When they portray the minister of justice, Christiane Taubira, who is black, as a monkey, or the pregnant sex slaves of Boko Haram as welfare queens, they are not satirising black people, but white people who vilify black people. It’s a fine distinction, no doubt lost on anyone who is not white.
The big story of same-sex marriage, the most important development that has brought us to the brink of nationwide recognition, is the failure of conservatives to pass on their values to their children.
Not that peering into one’s familial past is necessarily regressive. Being interested in where we have come from is understandable and sometimes even illuminating. Yet there’s something that nags about the family-tree obsession. Those who are truly rooted, as one social critic once noted, don’t need to search for roots. And that’s it, that’s the problem today. Bereft of better, future-oriented ways of thinking of oneself, of forming identities based on what one does and thinks and believes, of rooting oneself in the tumult of the present, too many root themselves in their ancestry, their cultural and biological backgrounds. As if all that, rather than the individual himself, is all-determinant.
Sugary excerpt of the day from Joseph Epstein's review of Shelby Steele's latest:
Telling truth to power used to be a sign of intellectual courage, but today, when the Internet has made this no great feat, what takes courage is telling truth to listeners who have grown accustomed to thinking themselves victims, have accepted the ultimately inadequate benefits of victimhood and, touchier than a fresh burn, take offense at the least criticism.
There is anger among poor South Africans at the lack of opportunities and change in the country, with frustrations often boiling over into violent street protests. Officially, unemployment runs at 24%, though the real figure is much higher, with more than half of under-25-year-olds out of work. Foreigners are an easy scapegoat, especially Somalis and Pakistanis resented for running successful small shops in the townships. The last census, in 2011, found 2.3m foreign-born people living in South Africa, though the number is probably higher. Some think there are as many as 5m-6m foreigners in a country of 54m.
The government’s response has often been to describe incidents as “criminality” rather than admit to a specific problem with violence against foreigners. Recent policies have, moreover, fostered a negative view of foreigners, such as the debate over proposals to prevent them from buying land. South Africa’s Institute of Race Relations, a liberal think-tank, points to the “absolute failure” of government policy to deal with unemployment and with deficiencies in the education system. It warns that xenophobic attacks may well increase as the economy weakens.
Across Africa, there have been boycotts of South African musicians, and demonstrations at South African embassies. South African lorries were stoned at a border crossing and Sasol, a petrochemicals firm, suspended some of its operations in central Mozambique and repatriated South African staff for fear of retaliatory attacks. Desmond Tutu, a former archbishop of Cape Town and an anti-apartheid stalwart, captured the mood of many: “Our rainbow nation that so filled the world with hope is being reduced to a grubby shadow of itself. The fabric of the nation is splitting.
On point analysis of the European migrant tragedies from Chris Bertram:
All European states are signatories to the Refugee Convention and that places obligations on them to offer sanctuary to people who arrive on their shores and who have a “well-founded fear” of persecution (on various grounds). Although politicians like to claim that their countries have a proud history of taking in the persecuted — as Cameron claimed in a speech last year — they now do everything in their power to make it as hard as possible for those seeking asylum to arrive on their territory. Devices such as heavy financial penalties on airlines and other carriers and ever tighter visa restrictions mean that people fleeing countries such as Syria and Eritrea simply cannot arrive in Europe by safe routes, and if they do so by using false documents they are often prosecuted and imprisoned. People from these countries make up a significant proportion of those trying to cross from Libya to Italy. Because people cannot travel via safe routes, they travel via dangerous ones, just as they do in other parts of the world. They put themselves in the hands of people smugglers and they take the risk of crossing the Mediterranean in flimsy boats. But the people smugglers, though no doubt unscrupulous criminals on the whole, are simply responding to a demand that European politicians and their electorates have created.
The history of Europe can often be read as a constant, failed attempt at border control -- consider the many successful attempts at crossing one of the most heavily fortified borders of all time, the Berlin Wall -- and few such efforts seem quite as quixotic as controlling the flow of people and boats across the Mediterranean.
People keep saying, 'We need to have a conversation about race,’ (...) This is the conversation. I want to see a cop shoot a white unarmed teenager in the back, (...) And I want to see a white man convicted for raping a black woman. Then when you ask me, 'Is it over?’, I will say yes.