Antonin Scalia Professor, Harvard Law School

Author: Stephen Sachs (Page 16 of 25)

Union Yes? Josh Chafetz argues that there’s “nothing un-conservative about supporting a union.” For my part, I don’t consider myself a conservative, and I’m not sure what to think about unions. But I’m also not sure I can agree with Josh’s rationale:

[W]hen unions are engaged in organizing workers and bargaining for a better deal for their members — including when they’re on strike — they’re just a voluntary organization pursuing a mutual interest. In that capacity, they’re just another of Tocqueville’s intermediate social institutions.

Imagine an association of individuals who are clearly not fellow employees (say, an independent fishermen’s association) which acts like a union, bargaining collectively to get a better deal for its members. In one sense, it’s a “voluntary organization pursuing a mutual interest.” But in another, it’s nothing more than a cartel trying to corner the fish market. For some reason, it’s hard to see an association of Sotheby’s and Christie’s as merely an “intermediate social institution.”

So the real question to answer is, what is it about the relationship of employment that makes unions legitimate? There are plenty of different answers to this question, and they prescribe different sets of union regulations–deciding whether specific tactics, like sitdown strikes, or specific goals, like secondary or political strikes, are legitimate. But these answers don’t seem to have their roots in a particular vision of a healthy civil society, but rather in particular conceptions of fair dealing and contractual obligation. The real question ought to be one of rights and their enforcement, rather than voluntary association. Otherwise, I know of another intermediate social institution Tocqueville might not have approved of…

Oh, the Perks: The great thing about being a Supreme Court justice is, whenever you get tired of sitting on the bench, you can always go riding on elephants

Justice Scalia and Justice Ginsburg in Jaipur, India, February 1994.

(Thanks to Josh Chafetz for the link.)

Self-Determination and Disorder: For those who are interested, a recent essay from my International Relations tutorial–taking a relatively dim view of nationhood, independence movements, and Michael Walzer’s political program–is now posted here.

The Elephantiasis of Reason: The bombing of the Red Cross offices in Baghdad was a great tragedy. Those who died were engaged in a selfless effort to help others in need. But as the occupation goes on, the tragedy may be compounded by a mindset that deeply underestimates the danger:

For the humanitarian agency, the blast shattered the belief that 23 years of good deeds in Iraq could be worn like protective armor against violence. “We were always confident that people knew us and that our work here would protect us,” said Nada Doumani, spokeswoman for the Red Cross in Baghdad. “How do we understand this?”

For some reason, the answer doesn’t seem particularly difficult–the people who killed UN envoy Sergio Vieira de Mello, along with so many other innocents, don’t care that the Red Cross does a world of good. They want Iraq to be unstable and insecure, because a secure, stable Iraq is one in which they can’t easily take power. It seems unnecessary to point out, but they don’t have the Iraqi people’s best interests at heart.

Back in January, David Brooks had written an article in the Atlantic Monthly called “The Elephantiasis of Reason” (borrowing the phrase from Irving Kristol). It described the CIA report “Global Trends 2015,” which attempted to predict the future through a focus on major social forces, ignoring the individuals such forces might affect. According to Brooks,

There are no human beings in the world described by the CIA. There are no passions or religious ideals, no dreams or urges, no altruism or malevolence. Instead there are only impersonal forces: technological developments, economic trends, and demographic pressures.

The CIA’s approach, Brooks argues, relies on an unspoken assumption by analysts that “foreign dictators will behave as they–social scientists with Ph.D.s and homes in suburban Virginia–would behave in similar circumstances.” Yet what it cannot account for is the potential irrationality, or at least apparent irrationality, that a dictator’s behavior might display. Similarly, a worldview that considers all Iraqis to have certain universal interests (peace, stability, prosperity, etc.), and to pursue those interests rationally, will fail to understand how the terrorists could be murdering their benefactors. Consider the following statement by the president of the French Red Cross:

“This is very serious, because this is a violation of the Geneva Conventions, and Iraq is a signatory to the Geneva Conventions,” said Marc Gentilini, a physician and president of the French Red Cross.

You know, I thought it was serious because so many people died. The fact that it violated the Geneva Conventions had kind of slipped my mind.

These sound like the words of someone who has spent so long in the world of international law that he has forgotten there’s another world outside. So what if Iraq is a signatory to the Geneva Conventions? The government that signed them never kept them, and in any case, it no longer exists. Does Dr. Gentilini honestly think that the terrorists who planned the attack consider themselves bound by international agreements? On whom is he trying to impress the seriousness of this treaty violation?

If any demonstration were needed that the world does not operate in a calm, rational, lawlike fashion, this is it. If we want to make Iraq a better place for its citizens, we can’t assume that the murderers who target their fellow citizens will be motivated for a desire for peace–and then panic when it turns out we’re wrong. (How could the U.N. have possibly run Iraq if it has withdrawn almost all of its staff after two bomb attacks?) The most important thing for now is improving security, and that means going after these groups wherever they can be found. If that requires more troops and resources than have been invested thus far, so be it. But nothing can be accomplished so long as we ignore the true nature of our–and the Iraqi people’s–enemies.

Cut and Run: An unlikely suggestion from Gregg Easterbrook:

IT’S THIS SIMPLE: COME CLEAN ON WMD, OR LEAVE IRAQ: I’d like to propose a simplification of the entire Iraq/WMD debate. It’s this: If the reason we went into Iraq really, truly was that the Bush administration really, truly believed Saddam possessed weapons of mass destruction, then there is nothing of which the administration need feel shamed–but the United States must immediately leave Iraq.

We now know there is no significant banned-weapons program in Iraq. Any serious manufacturing facilities for banned weapons would have been detected by this point. If we went in to stop a banned-weapons program genuinely believing one existed, and now know one did not exist, then our military must depart immediately. This is the only honorable course.

Alternative: The administration admits that other reasons, possibly valid, were the real reasons all along.

I respect Easterbrook as a writer, but I have to say that’s the silliest “simplification” I’ve ever heard. Even if weapons of mass destruction were the only potentially legitimate reason for the war (which is false) and if Iraq had no programs we should be concerned about (which is also false), why on earth would an immediate departure be “the only honorable course”?

Easterbrook’s logic only makes sense if you assume that our presence in Iraq is in some way punitive–designed to punish those darn weapon-building I-raqis by taking away their country for a while. If this war really was merely punitive, reasons Easterbrook, and it turns out that the punishment was undeserved, then of course we ought to stop punishing them, and set things back to rights. But if Easterbrook thinks we have a responsibility to restore the status quo ante, then the answer isn’t just to leave Iraq, but to install Saddam back in power first. Is that really what he is calling for? It’s certainly what would happen if we left now, but is that what Easterbrook really wants?

Alternatively, maybe Easterbrook’s argument is that a war designed solely to stop Saddam’s pursuit of WMD has now achieved its purpose–“mission accomplished,” so let’s go home. But this argument fails on its own terms, since Saddam’s pursuit of WMD can’t be guaranteed to have stopped permanently until he’s guaranteed to be out of power–which, at the very least, requires the creation of some effective government to take his place. It also assumes that Iraq is strategically irrelevant to us except with regard to its weapons (or lack thereof)–that once we’re sure the WMD are gone, we can just go home. With the welfare of 22 million Iraqis, $87 billion in taxpayer money, and a huge amount of America’s credibility on the line, that’s patently not the case. Even if this war were purely about WMD, we still might have reasons why, once we’ve defeated Saddam’s regime, we’d want to shape the new Iraq in ways that fit our narrow self-interest (let alone our moral sensibilities).

But the most fundamental flaw in this post is that it assumes that the administration has to “admit[]” that there were other reasons “all along.” In my view, the administration hasn’t exactly been hiding its non-WMD reasons for action. Check out the following, from an NYT editorial of Feb. 27, 2003 (quoted to brilliant effect by Andrew Sullivan):

President Bush sketched an expansive vision last night of what he expects to accomplish by a war in Iraq. Instead of focusing on eliminating weapons of mass destruction, or reducing the threat of terror to the United States, Mr. Bush talked about establishing a ‘free and peaceful Iraq’ that would serve as a ‘dramatic and inspiring example’ to the entire Arab and Muslim world, provide a stabilizing influence in the Middle East and even help end the Arab-Israeli conflict. The idea of turning Iraq into a model democracy in the Arab world is one some members of the administration have been discussing for a long time.

Why is Easterbrook ignorant of this? Why does he insist that one set of reasons or another must have been “the real reasons all along”? Isn’t it possible for a major policy decision like the invasion of Iraq to have many independent reasons in its favor–to be morally overdetermined?

And let’s suppose, just for a moment, that the invasion of Iraq was fundamentally unjustified and irrational–that Bush had ordered it by accident one morning and was always too embarrassed to say so. Wouldn’t the moral course of action still be for us to remain in Iraq for as long it took to lay the foundations of a peaceful and democratic society?

Or would it be to cut and run?

One, Two, Three, Throw: A friend points me to one of the most prestigious sports competitions in the world: The 2003 World Rock Paper Scissors Championship. It’s a vicious game–described by NPR as “a tense drama pitting fist against splayed fingers against outstretched hand”–but it has been celebrated a wide variety of propaganda posters as showcasing the benefits of modern technology.

Just remember: Think Rock.

The World Rock Paper Scissors Society claims this poster, “Think Rock”, was part of a 1955 campaign to woo the public back toward the Rock. The society says the poster was an attempt to reposition Rock as the “thinking man’s throw.”

Provided by: The World Rock Paper Scissors Society

UPDATE: Eugene Volokh asks, “what’s with this paper beats rock thing, anyway?”

Hmm… From the NYT account of the attack on the Rashid Hotel:

Altogether the launcher held 40 missile pods, said Brig. Gen. Martin E. Dempsey, commander of the First Armored Division, whose responsibility is the security of Baghdad. He was speaking at a news conference this evening, held in a building in the compound near the Rashid Hotel.

Half the missiles were 68 millimeter, which have a range of two to three miles; the others were 85 millimeter, whose range is three to four miles, he said. The smaller ones were French made, and designed for use by helicopters. The others were Russian. The French rockets, officers said, were quite new, and likely purchased after the arms embargo was in place.

“They were in pristine condition,” said one military officer who inspected the rocket tubes and assembly.

Saddam Hussein had weapons of this type in his arsenal, but General Dempsey said he did not know the origins of these missiles.

Southern Cross: Two Rhodes Scholars, both from South Africa, have started a great new blog to focus on Southern African issues. Check out southern-cross.blogspot.com for very interesting posts on Zimbabwe, press freedom, and the morality of accepting a Rhodes Scholarship.

“Students Favor Bush in IOP Poll”: The Harvard Crimson carried an astounding story in Thursday’s edition:

College students are more likely to register as Republicans and support President Bush than the general public, according to a survey released yesterday by Harvard’s Institute of Politics (IOP).

The nationwide poll of 1,202 undergraduates revealed that 61 percent approve of Bush’s performance as president, compared to 53 percent of all voters.

College students, 81 percent of whom say they will definitely or probably vote in the 2004 elections, could tip the scales in next year’s presidential race, the survey results indicated.

Unfortunately, The Crimson lets the data be submerged beneath tepid analysis:

“It sends the message that youth are up for grabs in 2004,” said Jonathan S. Chavez ’05, who directed the survey for the IOP’s Student Advisory Committee (SAC).

I’m sorry, but this poll says a lot more than that: it sends the message that the Democratic Party is in real trouble. Most people I knew in college subscribed to 1960s-era stereotypes, in which idealistic young people, unbeholden to the system, take up the progressive flag against their reactionary elders. (“Don’t trust anyone over 30,” etc.)

I subscribed to the stereotype too, at least to some extent, and I was very surprised that the Democratic Party had failed to make use of what could be a powerful base of support. But what I didn’t realize was that the liberal-activist tradition on campus has veered sharply to the left, leaving a large chunk of students in the middle. The kind of social revolution the activist wing calls for isn’t one that most students want to see. And in any case, today’s Democratic Party isn’t a party of revolution. In many ways, it’s become a status quo party, dedicated to preserving the gains of the Great Society against the evil Republicans who want grandma thrown in the street. In contrast, the right spent 40 years trying to come up with an intellectual alternative to the New Deal, and since the 1970s has been advancing an ideological program that, regardless of its merits, has seemed far more attractive to many Americans than the continual expansion of the welfare state. The aftermath of 9/11 has only intensified the problem–the GOP’s approach to national security may be flawed, but the Democrats simply haven’t offered a clear alternative, and the proposals of the loudest voices on the left don’t inspire much trust.

In the same way, liberalism on campus is no longer the cutting edge. College faculties and administrations are now more liberal than society as a whole, and those who want to speak truth to power are generally on the other side of the political divide. When the Establishment is comfortably liberal, where are energetic young iconoclasts to go?

I say this, of course, as someone who doesn’t celebrate these results; to be honest, I’m really hoping for an ideologically coherent alternative to the party of Tom DeLay. But if the Dems don’t recognize this rejection of old stereotypes–like Schwarzenegger’s election in California (the bluest of all blue states!)–as a shock to the system and a signal for reform, then the re-thinking that’s needed won’t ever take place. When more college students plan to vote for Bush than for a generic “Democratic candidate,” something’s gone very wrong for the Democrats.

That’s why it’s so dangerous for the poll story to be downplayed by Democrats like former Agriculture Secretary (and IOP Director) Dan Glickman, who responded by calling college students “an untapped reservoir for politicians and political parties to mine.” (The Christian Science Monitor flubs the story as well, opening with a bizarre non-lede: “Intriguing evidence indicates today’s college students may be a potent political force in next year’s election and beyond.”) The problem isn’t that political parties have failed to tap the reservoir; the problem is that the Democratic Party is finding it dry. Indeed, it’s hard to overestimate the significance of this poll–if the Democratic Party is losing college students, who can it win? And of the 61 percent who approve of Bush now, how many will grow any more liberal as they get older?

(One final note: the poll also showed that among college students, the Democratic frontrunner is Joe Lieberman, who’s been far more willing than other candidates to buck traditional liberal constituencies. Lieberman is also nearly alone among Democratic candidates in articulating a foreign policy vision that’s both firmly rooted in liberal ideals and a realistic counterweight to Bush’s approach. Maybe ideological coherence is making a comeback? We can only hope.)

« Older posts Newer posts »

© 2025 Stephen E. Sachs

Theme by Anders NorenUp ↑