FISH AND WHAT FOLLOWS

This one's for Josh: The Yankees have home field advantage, which means, of course, that they will be in Florida for three days and three nights, next Tuesday through Thursday. Hmmm.

More importantly, remember what happens to Jonah in chapter four: he is punished for being angry that Nineveh repented and thus escaped the destruction that he was originally sent to prophesy. Here's Jonah 4:6-8:

4:6 And the Lord God prepared a gourd, and made it to come up over Jonah, that it might be a shadow over his head, to deliver him from his evil. So Jonah was exceeding glad because of the gourd.

4:7 But God prepared a worm when the morning rose the next day, and it smote the gourd, that it withered.

4:8 And it came to pass, when the sun arose, that God prepared a vehement east wind; and the sun beat upon the head of Jonah, that he fainted, and requested for himself that he might die, and said: 'It is better for me to die than to live.'

Losses in games 3-5, reprise in game 6, but ultimate defeat in game 7?

RIGHTS OF ASSEMBLY?

Today's article from the Hindu on the radical VHP's failed rally in Ayodhya poses an interesting problem for those generally committed to civil liberties:

Ayodhya, Oct. 17 (PTI): The much touted VHP sponsored congregation here for the Ram temple campaign fizzled out today after police foiled the programme by sealing the temple town and preventing its activists from gathering at the Ramsevakpuram, the venue of the proposed assembly.

Though by and large the town and the rest of the State remained peaceful, Karsevakpuram, the complex housing the VHP's central office, witnessed a police lathicharge and firing of rubber bullets when angry cadres clashed with police in the morning after their leader, Ashok Singhal, was arrested.

Before the scheduled start of the 'Sankalp Sabha' (assembly for taking pledge) police also rounded up another senior VHP leader, Ram Vilas Vedanti, and a few thousand activists and ferried them outside Faizabad effectively foiling their plans.

My sense is that arresting Singhal and the other activists was a good idea, given the history of violence in Ayodhya in particular, and given the fact that no official OK for the march could be negotiated (see here). I don't know anything about the details of laws in UP regarding political and religious rallies, however. Read also ToI, here, concerning the release of the activists, the continuing repercussions of the decision to jail them, and criticism from the BJP.

BIBLE VERSE OF THE DAY

For all you Yankees fans out there: Jonah 2:1.

MORE: For my predictions, and my response to Josh, scroll up (or just click here).

WALZER

Josh Cherniss's post here got me thinking about something that Josh doesn't talk about -- Michael Walzer's theory of the "spheres" of goods that have principles of distribution that are independent from one another and also internal to a particular cultural understanding. These spheres are important enough to warrant reference in the title of the book of his that is probably most famous and definitely one of my favorite books in Anglo-American political theory.

In a nutshell, Walzer's theory of goods is that there are a variety of goods in life -- money, membership in the political community, love, authority, work, education, and so on -- and that each of these goods should be understood to be distributed according to different principles. Conversions between goods should be viewed critically. The point is perhaps best understood negatively: if membership were only distributed according to who could pay the most -- say, if there were a citizenship auction every year -- we might think that such a system could be economically efficient, but it would also be monstrous. Consent, birthright, heritage, and political generosity are all principles of the distribution of membership that need to find some sort of place. Similarly, the old saying "can't buy me love" is really true: we are right to call love-for-money by some sort of term that expresses moral disdain (prostitution, for example). It's not that these judgments aren't contestible; surely someone could argue that prostitution should be legalized and money and love freely convertible in that respect. But I would doubt that even legalized prostitution would change a widespread moral intuition that money, by its nature, is not simply convertible into love. You can pay a prostitute, but you can't pay him or her to fall in love with you.

Attentiveness to the difficulties in conversion constitutes a deep insight of Walzer's pluralism. Communities always distribute a wide variety of goods according to a wide variety of principles. Clashes over convertibility are part of what makes up the life of a community. Community life is, in part, a conversation about how to govern the distribution of diverse goods. And since different goods also create different kinds of sub-groupings, there are always multiple and conflicting groups in the life of a community, especially modern communities that span over a nation state. Communities are irreducibly diverse as long as goods are kept diverse. That is at least a partial answer to Josh's concerns that communitarians, by focusing on "communal rights," can have a blindness for diversity within communities. I don't think that Walzer falls prey to that problem -- I'm not sure that Josh wants to say that he does, of course.

In addition, attentiveness to the variety of goods and the different distributional principles that govern them is what constitutes the difference between someone who is empirically and culturally sensitive and someone who is ideological in one direction or another. I really like Josh's description of ideologies:

They’re useful, and are as intellectually unsatisfying [to me at least; not to ideologues] as usefulness demands.

Part of what is "useful" about ideologies is that they provide a single-minded focus on one good and then promise to provide conversion tables for all other goods. Grover Norquist can talk about individual wealth accumulation and basically ignore every other important good except as it relates to wealth accumulation -- political membership (needed to keep the barbaric hordes from taking your stuff, especially the poor barbaric hordes), education (needed to provide productive skills for the individual and for the economy), political authority (needed to police the boundaries of property rights). Don't know what he says about love, but I doubt that it's that interesting. Aside from the obvious arguments one might make about his moral obtuseness, Grover Norquist really does not see anything wrong with comparing progressive taxation to the Holocaust, because the basic good is wealth and everything (the sum total of other goods) is to be understood with reference to the principle that people should be able to keep what they inherit or earn. Any deviation from that principle is moral evil. That's the obscene limit of ideology.

AHMED ZAOUI

In New Zealand, an asylum seeker from Algeria is at the center of an intense discussion over the relationship between security measures, terrorism, asylum, and the criminal justice system [or, better, international cooperation with respsect to criminal justice]. Ahmed Zaoui, a professor of Islamic theology, former political candidate and activist with Algeria's Islamic Salvation Front (FIS), accused by Algerian officials of being involved with the more radical Islamic Armed Group (GIA), and convicted of various crimes in Algeria for his alleged involvement with terrorism, was jailed in Belgium (and apparently went on hunger strike there), illegally migrated to Switzerland where he also got into trouble with authorities for his activities with FIS (see also here). The Swiss expelled him to Burkina Faso and paid the government there for accepting him. He was also tried in absentia in Paris and sentenced to three years in prison for relations with terrorist organizations.

After a little over a year in Burkina Faso, he made his way to New Zealand -- through several countries in southeast asia, including Malaysia, where he obtained a false passport -- and applied for asylum there under his real name. He was detained upon arrival and eventually classified as a refugee after a lengthy fact-finding process in which the NZ authorities determined to their own satisfaction that the charges in Europe were not as strong as the governments of Belgium, France and Switzerland had claimed; the charges in Algeria were also met with skepticism given the political nature of the relationship between FIS and the army. Yet he has been kept in solitary confinement for ten months because the New Zealand government issued a "National Security Risk Certificate" which declared him a threat to state security, the first such certificate to be issued in NZ history. The evidence on which the certificate was issued has not been made available to Zaoui's lawyers, who are appealing to the NZ High Court in order to challenge the Immigration Act provisions that allow for such certificates based on classified information. Just today Zaoui was moved out of solitary confinement. His lawyers weren't notified of the move [before it happened] but did express satisfaction that he is now out of solitary.

See also Amnesty's page on him, here. The New Zealand Green Party has also taken up his case. Read also this overview of the case from Naros (in French). Finally, the best overview of the case I've seen so far is this article by Alistair Bone that appeared in the New Zealand Listener in August. Bone's piece notes some additional complexities of the case, including the apparent connections between the GIA and the Algerian security services.

Lessons from this case:

1) other democratic countries are also having a difficult time navigating the line between freedom and security,

2) these kinds of cases are incredibly complex and fraught with matters of judgment, including what weight to give to the statements of interested foreign parties and how to evaluate the character of various actors (Zaoui is alternately described as a radical islamist and a peace-loving, tolerant friend of democracy and pluralism),

and 3) whatever the ultimate truth of the matter, human rights groups are doing a service by attempting to force the government to articulate reasons for their actions.

VOTING MACHINES

There's a whiff of "puzzling evidence" to this article in the Independent about the relationship between electronic voting, corporate power, and Republicans, but it's still worth a look because the issue of manipulation of touch screen machines is really worth worrying about. See also xymphora's post here.

MORE: See also Billmon's take, here.

MORE: I should note that a colleague of mine in the department first called my attention to this article, and he's got some expertise in polls. He's wondering why the story doesn't have legs, I think, but I don't want to attribute any views to him that he might not have.

After the awful AL playoff series of 1999, I thought I would never enjoy baseball again. I actually said that I would never watch it again, but I knew that wasn't true. I still watched it, but I also began to believe that even when teams are pretty evenly matched, the inherent fallibility of umpires -- and the tendency to rule in favor of the stars, despite the umpires' best intentions -- would combine with the self-perpetuating burdens of our narratives of the past to prevent a Sox win, and my enjoyment of the playoffs, for the near future.

That still might be true, except for the part about my enjoyment of the playoffs. I'm having a lot of fun watching this series.

GO SOX!!

SCALIA'S RECUSAL

Most of the commentary on Scalia's recusal seems to have focused on the relationship between his decision and the possibility of a 4 - 4 split in the pledge case; given that one of the jobs of court watchers is to read the tea leaves right, and given that Scalia has provided us with a new set of leaves, it's sensible that people would focus on that question. I realize that I'm not doing justice to the complexity of the arguments in Eugene Volokh's posts here and here, and Larry Solum's post here. Still, I think that a more basic question hasn't really been addressed, and it's not one that is simply a matter for "judicial ethicists" or whomever one presumes to be an expert in recusal decisions. (Indeed, the invocation of experts here reminds me of Thurman Arnold's suggestion that such invocations serve primarily to reassure common folk that everything is ultimately right with the world.)

No one who pays attention to the Court could really argue that Scalia's comments reveal anything about his disposition toward issues like the pledge case. Nobody really expects Scalia to read the briefs from Newdow and suddenly exclaim, "my God! the separationists were right all along! I must vote to uphold the 9th Circuit on this one, contrary to all of my expectations." Scalia is a reliable vote for the idea that invocations of God in public life are not prohibited by the 1st Amendment, at least as far as I understand his position.

So the reason why I think that Scalia's recusal is unfortunate is that it tends to perpetuate a myth about judicial motivations, namely, that judges are truly impartial when cases come before them. Anyone in Newdow's position (or anything similar to Newdow's position) will not expect to find an ally in Scalia no matter how super-cool his or her briefs and arguments are. Scalia is not neutral on this issue. The fact that he criticized the 9th Circuit in a non-judicial forum doesn't give us any new information about Scalia's views.

His recusal seems to uphold the principle that judges should not comment on current cases, a principle that is valuable, supposedly, because it is presumed to be linked to the legitimacy of the Court. But Scalia has not made any new friends by his recusal, and I would doubt that any intelligent observer would conclude that Scalia is now or ever was neutral on the issue of the pledge. (And if someone wants to bet on this, I'd counsel checking the Vegas odds before doing so!) So Scalia's recusal perpetuates not just a false myth (judicial neutrality), but the worst kind of false myth, namely, a false myth that everyone knows to be false, or at least everyone who has thought about these things knows to be false. Thus, Scalia's recusal adds nothing to people's beliefs about the impartiality of the Court -- unless he is primarily concerned with the uninformed and generally uninterested public. That would be a weird public for Scalia to be aiming at, however.

Perhaps I'm missing something, but I don't see what the point of his recusal was in the first place, except as a recognition of some formal duty of impartiality that no one expects him really to have held to in the first place. Call me a barbarian, if you want.

NOTE: some spelling and grammar mistakes corrected.

UNESCO

And if you want to travel without leaving your computer, take a look at UNESCO's WHTour site. Really cool. (Via Die Zeit).

REMINDER

If you're not reading Ben's travelogue, you're missing something. His latest installment from Seoul is here.

MANDATES

OK, Schwarzenegger can make a better case for a "mandate" than I originally thought was the case. More people wanted him than wanted to avoid a recall, as the Curmudgeonly Clerk points out helpfully, here. That's good enough for me, at least concerning majoritarian support for the idea that someone called "Arnold Schwarzenegger" should inhabit the governor's mansion in Sacramento for the next chunk of time.

Generally the next interesting question with respect to mandates is the extent to which they are specific -- whether they embody popular support for a particular set of programs, support that the person pushing the programs can then, theoretically, take to the bank when negotiating with other political actors who are subject to popular control. "Taking back the government" is probably not going to be enough, nor is fighting "special interests" since that phrase really has little meaning except as a phrase demonizing ill-defined groups of people who are supposedly to blame for the fiscal mess that CA is in. So I suppose we'll see what the new governor can make of the situation. That's ultimately what mandates are about, as far as I understand it: a claimed legitimacy based on majoritarian support and used in negotiations with other political actors who are only really going to be impressed with the argument if they fear repercussions in their own political careers. My hazy recollection of the political science literature on presidential mandates is that they don't amount to much once one tries to ground them in voting data, but I'll have to go back to my grad school notes and check that again. And at any rate, the Clerk and I agree that the clearest popular message emerging from the recall effort is "not Davis."

The Clerk then overreaches a bit by trying to draw analogy with what "the Left" has said with respect to President Bush's legitimacy:

The mantra of the Left was (and in some quarters continues to be) that President Bush is illegitimate because Gore received more votes than Bush.

I don't think that the not-the-popular-vote-winner argument, understood in a simply majoritarian fashion, has been the main argument of folks who think that Bush took office illegitimately. Everyone knows that the electoral college winner can be the popular vote loser. It's a silly system, ultimately, and every once in a while it's worth pointing out to those who claim broad, majoritarian support for Bush that without the strange institutional artifact of Founding suspicion of popular judgment (and founding sectional concerns) that is the electoral college, Bush would be wiling away his time in Crawford, not jetting all over the country on Air Force One and donning flight suits and landing on aircraft carriers simply because he can. The illegitimacy argument rests on a criticism of Bush v. Gore, one that would take precisely the same form if Bush had been the popular vote winner and Gore "merely" the person hoping to obtain a win in the electoral college by defending judicial federalism and trying to counter novel equal protection and Article II arguments and hoping that more than just the liberal Justices would rule in his favor.

MORE: A reader (let's call him BB) responded to this post by arguing that it's inaccurate to say that Gore would have won the popular vote if there were no electoral college, because the candidates' strategies were shaped by the existing institutional framework of the electoral system. Fair enough. In addition, the reader argued that the electoral college made sense in the eighteenth century given prevailing notions of the centrality of state sovereignty. Also, fair enough. I don't have anything more insightful to offer than the following: I see no reason why eighteenth century notions of state sovereignty -- which were never the consensus view at any rate (see Hamilton) -- should continue to influence the electoral process today, in the form of an institution designed to add an additional check on popular choices for president.

I didn't ask BB if I could post his full name or actual comments, so I'm paraphrasing.

HIJAB IN SCHOOL

A few English-language articles appeared over the weekend about the expulsion of two girls from their high school in Aubervilliers, France, for wearing veils, and the subsequent mainstream political support for the decision. Newsday, for example, carried this wire story about the case, and the BBC has this story, while al-Jazeera has this story in english and the Singapore Straits Times recaps the same information here. The AP story carried by the American papers neglects to note that the girls were not raised in a religious household: her father is a self-proclaimed atheist, and, as he put it in an interview with BBC, "Jewish by Vichy rules but not by the Talmud", and her mother is Algerian but not a practicing muslim. The two are separated. It was apparently the mother's family who encouraged the girls to devote themselves to religion.

For French coverage of Alma and Lila Levy's fight with the school authorities, read this article in Liberation (detailing the favorable official reactions to the decision to exclude), this article in Le Figaro (about the girls' disavowal of connections with Islamic interest groups), and this article in L'Humanite.

The reaction of French authorities seems to bear out what Dan Gordon noted to me in an e-mail regarding the German Constitutional Court decision on teachers' wearing of hijab, namely, that in France the secular feminist position -- that the veil is subordination and exploitation as such, even when freely chosen -- is widely accepted. In Germany, there is more receptivity for the argument that religious choices deserve some respect even if it is possible to develop a critique of such choices from the standpoint of equality. It should be said, of course, that there is only comparatively more receptivity for such a position in Germany, since Germans are well on their way to doing what the Constitutional Court asked them to do: clarify by statute the rights of teachers in schools, probably by outlawing the veil at least at the front of the classroom. In the abstract, there is some play in the law on the question of wearing veils in school, since the Constitutional Court also upheld an employees right to wear the veil at work in a department store. But in German law there is a strong principle of protecting employee rights in the private economy, a principle that finds little parallel in the area of individuals seeking access to civil service positions, at least as I understand things. Civil servants can be burdened in ways that private employees cannot.

It seems to me that the argument that the veil is exploitation, as such, is odd. If the underlying context is one of compulsion, then there is compulsion from the underlying context (a tautology) and one can be concerned about that. Nonetheless, you can certainly hear arguments from women that wearing the veil is an affirmation of aspects of their identity that they do not want to give up. I see no reason to argue that these women are acting strategically, and no reason to accuse them of not understanding themselves fully.

BEN

My old friend Ben has set up his own travelogue about his "voyages through Northeast Asia," here. As I said on Friday, we had some plans for him to do some guest posts here, but in the heat of the moment he's set up his own site instead. Right now there are two posts up from his first stop: Korea. My favorite line: "i feel somewhat like a colonialist running dog" -- but not for the reason's you might think. . .

CENTIFOLIA

This is quite exciting: ongoing reports by an independent journalist from a visit to Baghdad this month, with a special focus on women's rights. In French and English. This is the kind of independent observation that is necessary for folks in the U.S. in particular.