In case you were wondering, that strange sound that you heard during the third debate actually was Socrates vomiting.

The candidates sucked. The questions went unanswered. I can’t say that I necessarily blame the candidates for that, though, since the questions mostly sucked, too.

If kudos must be given out, then kudos to John Kerry for actually talking about the wage gap in a question about poverty–although I happen to fundamentally disagree with him on the means of dealing with it:

Mr. Schieffer: Next question to you, Senator Kerry. The gap between rich and poor is growing wider. More people are dropping into poverty. Yet the minimum wage has been stuck at, what, $5.15 an hour now for about seven years. Is it time to raise it?

Mr. Kerry: Well, I’m glad you raised that question. It’s long overdue time to raise the minimum wage.

And America, this is one of those issues that separates the president and myself. We have fought to try to raise the minimum wage in the last years, but the Republican leadership of the House and Senate won’t even let us have a vote on it. We’re not allowed to vote on it. They don’t want to raise the minimum wage.

The minimum wage is the lowest minimum wage value it has been in our nation in 50 years. If we raise the minimum wage, which I will do over several years, to $7 an hour, 9.2 million women who are trying to raise their families would earn another $3,800 a year. The president has denied 9.2 million women $3,800 a year. But he doesn’t hesitate to fight for $136,000 to a millionaire. One percent of America got $89 billion last year in a tax cut. But people working hard, playing by the rules, trying to take care of their kids, family values that we’re supposed to value so much in America — I’m tired of politicians who talk about family values and don’t value families. What we need to do is raise the minimum wage.

We also need to hold on to equal pay. Women work for 76 cents on the dollar for the same work that men do. That’s not right in America. And we had an initiative that we were working on to raise women’s pay. They’ve cut it off. They’ve stopped it. They don’t enforce these kinds of things.

Now I think that it is a matter of fundamental right that if we raise the minimum wage 15 million Americans would be positively affected. We’d put money into the hands of people who work hard, who obey the rules, who play for the American dream. And if we did that we’d have more consumption ability in America, which is what we need right now in order to kick our economy into gear. I will fight tooth and nail to pass the minimum wage.

And kudos to Mr. Bush for achieving the single most transparent transition onto message that I’ve ever heard from a politician (and that’s saying something). On the same question:

Mr. Schieffer: Mr. President.

Mr. Bush: Actually, Mitch McConnell had a minimum wage plan that I supported that would have increased the minimum wage.

But let me talk about what’s really important for the worker you’re referring to, and that’s to make sure the education system works, it’s to make sure we raise standards. Listen, the No Child Left Behind Act is really a jobs act, when you think about it. The No Child Left Behind Act says we’ll raise standards, we’ll increase federal spending. But in return for extra spending, we now want people to measure, states and local jurisdictions to measure, to show us whether or not a child can read or write or add and subtract.

… And so on. He talked about No Child Left Behind for the rest of the response time.

Bob Schieffer was terrible. The questions were terrible, and Schieffer breezed past opportunity after opportunity for desperately needed follow-ups. His one good moment for the night came when he actually directly asked one of my two questions for George W. Bush. A while after Mr. Bush muttered this empty platitude…

Mr. Bush: I think it’s important to promote a culture of life. I think a hospitable society is a society where every being counts and every person matters. I believe the ideal world is one in which every child is protected in law and welcomed to life.

I understand there’s great differences on this issue of abortion. But I believe reasonable people can come together and put good law in place that will help reduce the number of abortions.

… Schieffer actually came back around and asked, point blank:

Mr. Schieffer: Mr. President I want to go back to something Senator Kerry said earlier tonight and ask a follow-up of my own. He said, and this will be a new question to you, he said that you had never said whether you would like to overturn Roe v. Wade. So I’d ask you directly would you like to?

Alas, my prediction of the necessary follow-up questions also came true. Bush had a full minute and a half in which to speak; here is the entirety of what he said:

Mr. Bush: What he’s asking me is will I have a litmus test for my judges. And the answer is no, I will not have a litmus test. I will pick judges who will interpret the Constitution. But I’ll have no litmus tests.

Kerry got off to a fantastic start in his response:

Mr. Kerry: Thank you very much. Well again, the president didn’t answer the question. I’ll answer it straight to America. I’m not going to appoint a judge to the court who’s going to undo a constitutional right, whether it’s the First Amendment or the Fifth Amendment or some other right that’s given under our courts today under the Constitution. And I believe that the right of choice is a constitutional right. So I don’t intend to see it undone. Clearly the president wants to leave an ambivalence or intends to undo it.

Mate in two moves. Bush either has to answer this–in which case there is no politically acceptable answer for him to give–or else he simply refuses to answer the question again, in which case you simply point to his record and say that his silence here speaks volumes.

So what does Kerry do? Ah, yes, of course. Before he finishes he decides it’s time to insert a canned soundbite about racial equality (why? because women’s equality isn’t good enough to have a 90 second response on its own?) and No Child Left Behind:

Let me go a step further. We have a long distance yet to travel in terms of fairness of America. I don’t know how you can govern in this country when you look at New York City and you see that 50 percent of the black males there are unemployed. When you see 40 percent of Hispanic children or black children in some cities dropping out of high school. And yet the president who talks about No Child Left Behind refused to fully fund by $28 billion that particular program so you can make a difference in the lives of those young people. Now right here in Arizona that difference would have been $131 million to the state of Arizona to help its kids be able to have better education and to lift the property tax burden from its citizens. The president reneged on his promise to fund No Child Left Behind. He’ll tell you he’s raised the money and he has. But he didn’t put in what he promised. And that makes a difference in the lives of our children.

… which of course allowed Mr. Bush to spend his 30 second follow-up on talking about No Child Left Behind. And that was it for the night on reproductive rights and women’s equality.

Good job, genius.

Well, not quite. Bob Schieffer did decide to wrap up with his idea of throwing a bone to women’s issues:

Mr. Schieffer We’ve come gentlemen, to our last question. And it occurred to me as I came to this debate tonight that the three of us share something. All three of us are surrounded by very strong women. We’re all married to strong women. Each of us have two daughters that make us very proud. I’d like to ask each of you what is the most important thing you’ve learned from these strong women?

Um. Yeah.

Watching Bush overcompensate during the second debate, I couldn’t help but think of another famous debate, which I think pretty much sums up the whole Bush debate strategy against Kerry:

(Bugs Bunny is standing on stage, imitating Theodore Roosevelt)

Bugs Bunny: I speak softly, but I carry a big stick!

(Yosemite Sam storms the stage, pushing Bugs Bunny away from the mic, with a plank in his hand)

Yosemite Sam (screaming): Well, I speak LOOOOOOOUD, and I carry a BIIIIIIIIIIGGER stick! And I use it, too!

(Sam thwacks Bugs Bunny with the plank)

— Ballot Box Bunny, 1951

Come to think of it, maybe there’s a metaphor there for the cognitive style of the Bush re-election campaign as a whole.

Further reading

The talking-points buzzword from the Republicans following the debate was dominated (I heard Republican campaign zombies repeat the claim that Bush dominated the debate three or four times in a row in the space of fifteen minutes). Of course, the point of a debate is to get at the truth, not to dominate, but the press strategy was pretty clearly tuned ahead of time to Bush’s strategy of overcompensating for last week’s meandering performance. In any case, for actual commentary on the content of the debate, you might want to check out feministe’s morning-after fact check or Cleis’s live-updated post).

In his comments on my post yesterday, Mark Noonan asks what my answer to his challenge is–to wit:

We’ve given the left a pass long enough — its [sic] time for those who are of leftwing opinion to make their final call: which side of the river are you on? If you’re on America’s side, then you want total and overwhelming US victory — and just to really spell it out; this means that our enemies are dead or begging for mercy. I challenge you — choose, and let you be known for what you are by what you choose — patriot, or traitor.

The easy answer would be to say that I don’t take the challenge seriously (which I don’t) and that I regard the question Do you want complete American victory in Iraq, or are you of another opinion? as fundamentally confused (which I do). However, perhaps it will be best to lead off by repeating what I said the last time Mr. Noonan asked me for my opinion on the matter:

Finally, even if you were to convince me that Kennedy is entirely in the wrong, I could not possibly see it as an instance of the general principle that you set out: “If you’re on America’s side, then you want total and overwhelming US victory — and just to really spell it out; this means that our enemies are dead or begging for mercy.” It could not be an instance of that principle because the principle is jingoistic claptrap that is obviously and wretchedly false–not to mention dangerous to basic points of republican virtue.

The highest form of love is the love of the virtue in the beloved, and those who are truly “on America’s side”–in any sense of the word that would make it an attitude worth having–are those who want America to live up to its better self. Whether that involves victory in war or not depends entirely on whether the war in question is just or unjust; even if you are right (as I think you are not) that support for this war is righteous, the idea of extending unconditional support for victory in any war that the United States government has committed itself to strikes me as nothing more than belligerent foolishness.

To that I should only add that, as I have argued in The War on Iraq One Year On and What You Mean “We”?, the assault on Iraq and the on-going occupation were not and are not, in fact, anything approaching just or righteous, and that it is becoming more obvious with every day just how ridiculous the demand to take a side is–where the only sides on offer are the Imperial Legions of the United States and the newly sovereign Iraqi junta, on the one side, and terrorist jihadis aligned with thugs such as Muqtada al-Sadr, on the other. If those are the two sides of the river, I would rather drown.

I am not on the United States government’s side. Nor am I on the jihadis’ side. (As a secessionist republic of one, I have an official policy of non-alignment in this conflict.) I don’t think that loyalty to any side in any conflict is, or can be, a virtue unless it is conditioned by loyalty for the truth and for justice, and what I’ve repeatedly argued in this space is that there is precious little of those in the Bush Administration’s case for war or practice of the war and occupation. (And the same, of course, goes for Mr. al-Sadr and his militia.) If I am on anyone’s side, it is innocent Iraqis who continue to be caught in the crossfire and to have their freedoms squelched, their rights trodden upon, their dignity insulted, and their lives and livelihoods destroyed, by two gangs caught in a bloody, apparently endless turf war.

The best thing that the U.S. government could achieve at this point would be to make it right to what degree they can. And that would mean:complete and immediate withdrawal, an official apology, and war reparations to Iraqi civilians maimed or dispossessed by the war and occupation–or to their heirs if they were among the tens of thousands killed. (The funds for reparations should, ideally, be expropriated from the personal fortunes of George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleeza Rice, Tom Daschle, John Kerry, Tom DeLay, Tony Blair, Jack Straw, José Maria Aznar, Saddam Hussein, Uday and Qusay Hussein, Tariq Aziz, Ahmad Chalabi, et cetera.)

That’s not “complete victory,” in any sense, but there is an important sense in which–since “victory” is, by definition, something worth having, and since it is not worthwhile to achieve dominance in an unjust war–there is no victory possible for the American military in Iraq. There is only conquest. And mere conquest is not something worth having, nor is it something worth wishing for your friends to have.

When it comes to political argument, you can usually count on abortion to get a response, and it seems that Why We Marched (GT 2004/05/30) was no exception to the trend. Fortunately, unlike most of the responses that you usually expect to draw by writing on abortion, the responses to my article were thoughtful, carefully argued, and deserve consideration and reply. (I think this just goes to show that pessimism about conversation on abortion is understandable but overly hasty. The problem is not that rational argument on the topic is impossible–just that it is very hard; not that people can’t talk reasonably about it, but rather that they don’t. Here, even more than in other areas, it’s vitally important to elicit just what the structure of the arguments is, and I hope I’ve helped a bit in that direction.)

After reading over my post again, and seeing how the responses sorted themselves out, I do think that I didn’t do nearly as good a job as I should have in marking out the two different purposes that I had in the post–the fact that it had two different purposes, that is; if you got that, then I think what they were is pretty easy to discern. This is important, because I think some of the critical replies to my post seemed to muddle the two different issues together, and I think that muddling allowed people to endorse claims for abortion that they would be hesitant–or, at least ought to be hesitant–about endorsing in other areas.

Well, what were the two points being made? To wit:

1. … that arguments against pro-choice political strategy as anti-democratic (by judicial tyranny in Roe v. Wade-style court decisions as a means to repeal abortion laws) are question-begging: if the basic pro-choice position is correct, then it would be judicial activism to uphold an abortion bill–because there could be no such thing as a (legimately enacted) law to ban abortion.

2. … that the basic pro-choice position is in fact both reasonable and correct–and thus that courts do have an obligation to throw out abortion bills.

Both of these points are connected with the deductive argument that I gave in defense of Roe-style court decisions:

1. No government body has the legitimate authority to legalize slavery. (premise)
2. A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
3. Courts can only enforce such laws as have successfully been made by the legislature. (premise)
4. Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
5. Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
6. Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
7. Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)

Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.

The first point that I was defending (which I had already argued at some length in my comments at Alas, A Blog) is that this argument is valid, and that all of the premises other than (4) are not only eminently reasonable, but also premises that you have to endorse in order to take judicial activism seriously as a term of critique. And what that means is that if (4) is true, you ought to endorse the conclusion; thus, whether premise (4) is true or not, it is the real issue in the debate. If (4) is accepted, then upholding state abortion bills, not overturning them, would be an act of judicial activism (since no such laws could legitimately have been made by the state legislature). Even if (4) is denied, a charge of judicial activism against pro-choice political methods without an independent argument against pro-choice political goals just begs the question against the pro-choice position–much like trying to give a Christian an argument that Christian doctrines stifle social reform, without first showing her that quietistic doctrines are false.

The second point that I was defending, enlarging on the first, is that the argument is not only valid but also sound: not only are premises (1)-(3) true, but so is premise (4) (because a woman has the right to control her own internal organs–yes, even the reproductive ones–and that right cannot be undermined by someone else’s need to use them). It’s important to see here that you can (indeed, should) accept the first point even if you don’t buy my defense of the second point. If you’re unconvinced by my argument in defense of (4), and remain unconvinced after my clarifications and emendations here, fine–but don’t keep basing your arguments on claims about judicial tyranny (or, mutatis mutandis, principles of democracy, federalism, etc.). The real action is in the debate over premise (4).

Well, just saying that you should accept the first point is not the same as demonstrating it, and apparently some of my interlocutors aren’t yet ready to buy in. Thus, for example, Otto Kerner wrote:

Charles, the flaw in your QED is in an implicit assumption that it is relevant to Roe. It is not. The US Supreme Court has no business enforcing or not enforcing state laws, except in a few specific cases. It was acting outside of its jurisdiction.

The question, of course, is why the Supreme Court has no business upholding or nullifying state laws; and there are a few different reasons that you might hold that. You might, for example, base it on a view of the powers delegated by the United States Constitution; or maybe on a prior notion of state sovereignty (perhaps as recognized by the Constitution); or on a strategic concern for political decentralization. Far be it from me to impute an argument to Otto without his consent–but since I’ll discuss the decentralist concerns in greater detail below I’ll take a moment to deal with the Constitutional claim here whether that’s Otto’s claim or not.

Now, I don’t recognize the authority of the U.S. Constitution in the first place; but since most people seem to think it matters, we can set aside my views on the nature of legal authority for the moment for a bit of immanent critique. The first of the common-sense premises I introduced for my argument was (1) that no government body has the legitimate authority to legalize slavery. I think that (1) is always and everywhere true, under principles of natural law. But whether I’m right about that or not, it’s certainly true of governing bodies if they derive their authority from the United States Constitution–since that reads, in part:

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Note that it says within the United States, or any place subject to their jurisdiction; if that doesn’t make state slavery bills the Feds’ concern, I don’t know what could. So if the Supreme Court were ever to hear a case concerning a state bill that purported to legalize slavery, what possible basis could it have for devolving the issue to state courts rather than applying the clear text of the federal Constitution? (Again, since under the Thirteenth Amendment no state legislature can have the authority to make a law that authorizes slavery, it follows that any bill that a state legislature passed to that effect would not be a law; it’s a dead letter just as surely as some “bill” that I wrote on a napkin and passed around to my friends. Thus, any Court which upheld the bill would, in fact, be engaging in an astonishing act of judicial activism, since it is purporting to effect a law where no law had been made by the legislature.)

Of course, this leaves open an additional question (which, I suppose, Otto is right to chide me on) of whether the Supreme Court should hear these cases in the first place. But I can hardly see any way that one could argue that (given the scope of the Thirteenth Amendment) a case over a state slavery bill would not be within the category of all cases, in law and equity, arising under this Constitution (Article III).

Of course, you might argue that forced childbearing is not slavery. You might even think it’s outrageous to even compare the two. But if so, your issue is with premise (4), not with the other premises. (Acid test: would you say the same thing if, say, South Carolina’s legislature were to pass a bill authorizing the enslavement of all Blacks, and the Supreme Court proceeded to strike it down? If you would, you’re nuts. If you wouldn’t, your problem is with (4) alone.)

You might also give me a thwack on the noggin and point out that the Court did not base its decision, in Roe, on the Thirteenth Amendment. True; and that’s too bad, because I think the reasoning would have been much stronger and the ruling much better if they had relied on the Thirteenth Amendment rather than on privacy rights that Griswold claimed to find hanging out in the penumbra of various parts of the Bill of Rights. But you can defend the outcome of a Court case (and the fact that it was decided by the Court) without defending the reasoning behind that outcome. And besides, aren’t the rights protected in the Bill of Rights also the U.S. Supreme Court’s concern (mutatis, mutandis), under the Fourteenth Amendment’s provision that No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States? (If not, then what in the world does that provision do?)

Moving away from Constitutional exegesis, Kevin Vallier objected to what he saw as my neglect of the libertarian arguments against Roe specifically: to wit, that

the decision allows the judiciary to literally create rights out of thin air — that in the end, creating a right to privacy and having an institution that is allowed to do this will be destructive of liberty. It isn’t that many libertarians think that abortion should be illegal. It’s that Roe should be repealed and the battle fought in a different way. That’s the reason I’m against Roe; it increases statism by centralizing power.

Now, I don’t doubt that this is an argument against Roe, but I have trouble understanding it as a libertarian argument. I take it to be absolutely vital to libertarianism (as a theory of justice, not as a region on the Nolan Chart) that rights can be recognized or ignored, respected or violated, but they cannot be created or destroyed by anyone–not by judges, not by legislatures, not by executives, and not by constitutions either. A corollary of this is that when a piece of jurisprudence claims to recognize a right, the important question to ask is not whether the judge has the authority to make or unmake the right (no-one does), but rather whether the judge’s claims are true or false. Do you think that a woman’s right to control her own body includes the right to seek an abortion? If so, then you think Roe was rightly decided (although perhaps for the wrong reasons). And if you think that Roe recognizes a legitimate right, then what’s the problem with enforcing it?

That’s not to say that there’s no legitimate issue worth raising here: aside from the question of whether defending Roe is just, there is also the question of whether defending Roe is prudent. As I’ve argued elsewhere (concerning the Violence Against Women Act), it’s perfectly reasonable to be concerned about the strategic value of vesting our hopes in the tender mercies of a highly centralized federal court. It’s something worth worrying about on libertarian grounds–and, for that matter, on radical feminist grounds too (anyone who thinks that a bunch of old white dudes with black robes and government pensions are the source of, or a reliable bulwark for, women’s liberation needs to get their head checked). But I think it’s no less foolish to put our hopes in highly centralized state courts, or state legislatures. When it comes to matters of strategy in playing the two off one another, we have to ask ourselves which of these pompous outlaw gangs is likely to commit or sanction fewer rights violations in the long run? I think any honest appraisal of the past couple centuries of American history has to show that the answer is Well, it depends. Reactionary states have been the primary agents of tyranny no less than the Feds (see: Crow, Jim; see also: race slavery), and choosing which to side with in a conflict is not something to which I think there is any good answer other than ad hockery based on historical precedent. And if we look at the history of cases decided under the Supreme Court’s doctrine of privacy rights, I have to say that the record looks pretty positive: Griswold (1965) abolished state laws banning married couples from obtaining contraceptives, Eisenstadt v. Baird (1972) struck down all state laws banning consenting adults from obtaining contraceptives from a doctor, Roe (1973) nullified most state abortion laws, and Lawrence (2003) did away with state sodomy laws. If you’re pro-choice (mildly or otherwise) and libertarian, that looks like a pretty solid record!

Broadly speaking, it’s very difficult for me to understand the charge that the Court’s privacy doctrine is a harbinger of statism. Whatever the hell the penumbral right of privacy is supposed to mean (and I’m not at all clear on this myself), it is certainly privacy from government interference. It’s no accident that every landmark ruling on the doctrine has curtailed the power of government over the individual rather than enlarged it. How, exactly, is a ruling based on such a principle, even such an admittedly vague one, supposed to give the State more power over people’s day to day lives?

Now, again, I suspect that a lot of the worry that seems to be directed against premises (1)-(3) actually has more to do with discomfort with (4)–and with my failure to adequately put asunder the two questions in my last post. If forced childbearing is slavery, then how could we possibly let the modest rhetorical gains that statism might make in delivering a Supreme Court decision outweigh the massive victory for women’s freedom from government control over their own bodies that the abolition of state abortion bills wins? If, on the other hand, you’re not willing to defend the rightness of the Roe decision, isn’t that just an indicator that you think forced childbearing is different from slavery in some salient respect?

What about the second point of my post–that premise (4) is true, and so that the argument for defending Roe (or similar court rulings) is sound? Well, there’s plenty to say about that, too–but not, alas, tonight. I hope, for now, that I’ve cleared the ground for approaching what I take to be the real issue in the debate.

For further reading

• GT 2004/02/05: Because of assholes like this guy… — the decentralist justice case for VAWA
• In a Blog’s Stead 2004/08/26: The Stone Idol — Roderick Long on ex-Chief Justice Roy Moore his battle against Federal jurisdiction
• In a Blog’s Stead 2004/06/26: The Constitution of Liberty — Roderick Long on the Lawrence decision

(Standard disclaimer: People other than myself may or may not agree with everything I have to say here; and while they certainly ought to, my act of linking shouldn’t be taken as a claim in either direction.)

I, like Roderick Long, haven’t had much to say about the war on Iraq lately; Roderick chalks it up to outrage fatigue. I think that’s right, but I don’t think–as one might take Roderick’s post to imply–that it’s merely a matter of personal psychology. The issue itself is tired: in the presence of such callous and brutal disregard for the truth, for rational argument, for other people’s lives and livelihoods, or for basic human dignity, there is no commentary left; at most you can only point out what you already said, and anything else is just more talk. The moral, political, and human disaster is, at this point, something so searingly obvious that it can only be shown, not said.

The War Party has surpassed both calumny and satire; there’s nothing left to us but the methods of Karl Kraus: to simply repeat what is being said verbatim, without comment. Wovon man nicht sprechen kann, dar?@c3;bc;ber mu?@c3;178; man schweigen.