Like the Holy Roman Empire, this Friday Random Ten is neither Friday, nor Random, nor Ten. But it is (I think) a good idea; thanks to Random Thoughts and to Trish Wilson for it. Here’s the idea: you’ve probably all heard of the Friday Random Ten music game. This is sort of like that, except that it’s ten links. The links go to ten worthy posts by webloggers outside of the usual club of folks you link to. Why? Because weblogging, and political weblogging in particular, is interesting and fun and increasingly important but it’s also got a tendency to be inbred and clubby. Most of us are not atop the A-list “dominant link hierarchy,” but we participate in it, and if we don’t try to break up the cartel a bit, who will? The Danny Bonaduce of the blogosphere? I think not. So here’s mine:

1. When it comes to the hand-wringing and the bloviating over the Left’s attitude towards feminism, abortion, and sexuality, media girl 2005-02-24: Not negotiable puts it better than I could in just three sentences:

   What a lot people — mostly men — don’t seem to understand is that women’s control over our own bodies is not negotiable. We are not slaves. We are not breeding machines to be regulated and controlled by the government.

   Read the whole thing.

2. Bitch, Ph.D. 2005-02-22: The Washington Monthly points out that it’s that time of the three months again: Kevin Drum has come down with a nasty case of QMS, and it’s made him impulsive and irrational enough to start spouting off without so much as bothering to so much as search Google for female political bloggers first. Or, as we have it from the good doctor:

   Oh look. We have another well-meaning non-sexist liberal non-discriminatory fuckwit around being all concerned about how women just don’t choose to talk about politics. Or maybe it’s that they’re innately less comfortable with the “food fight” nature of political discourse.

   Hey Drum, you moron, try doing some goddamn research before you shoot your mouth off, ok?

   How the fuck do men ever manage to succeed in any kind of intellectual endeavor without bothering to find out what the fuck they’re talking about before shooting their mouths off? Oh yeah, right, it’s the magic power of the cock. Jesus.

   Read the whole thing.

3. Bean has a new blog (you may know her from her posts on Alas, A Blog), and in Cool Beans 2005-03-03: The Invisibility of Feminism she points to another one for the what is seen and what is not seen file. Here we have one of the countless examples of why men in the media seem able to confidently declare feminism dead once every five years or so, without the least bit of circumspection: because nobody seems to feel obligated to actually, y’know, look up feminist publications before they gather their data and start spouting off.

   Read the whole thing.

4. Jill Walker at misbehaving.net 2005-02-27: The Debian Women Project notes the lack of women in open source development, or at least in Debian development specifically.

   Hanna Wallach posted her slides from a talk she gave on Debian Women yesterday. She showed statistics showing that 10-20% of computer science undergrads are women, and that 20-35% of IT professionals are women, and yet there are only 4-8 women among the nearly 1000 developers of the open source Debian "universal" operating system. That’s less than one percent. While Hanna mentions possible reasons briefly, her main concern in the talk is to show what is being done in Debian Women.

   It’s good to see that the topic is being addressed, and everyone’s best wishes should be with Debian Women, which seems to be off to a good running start; one can only pray that the boys will keep tabs on the organizing and action that’s going on, instead of treating everyone to a trimonthly outbreak of oblivious Where are all the female software developers? e-mails on devel mailing lists…

   Read the whole thing.

5. Mouse Words 2005-03-05: 10 things you need to know about men demonstrates once again that shooting fish in a barrel can be damn funny if you have the talent (as Amanda clearly does).

   From iVillage and by Richie Sambora. Sambora couldn’t tell you shit about playing guitar, and he’s a guitarist. So why do we assume he knows something about being a man? As usual, we women are presumed pretty clueless when it comes to men. Men, however, know everything they need to know about us.

   …

   We want you to be our mothers.

   Heather Locklear is a saint. And now I have the unfortunate image of her man calling her Mommy and I’m all upset.

   We don’t mind it when you dress us.

   If he asks for a sponge bath next, I hope Locklear takes a moment to remember that she is a stunning beauty who has exactly zero reason to fear that she’s headed for spinsterhood if she suddenly gave up playing Airplane in order to get her husband to eat.

   Read the whole thing.

6. Avedon Carol 205-03-05: How you become crazy takes on the pervasive idiot notion that any ideological skew in the media, if it exists, is prima facie evidence that the media is doing something wrong and therefore needs to change:

   I have never understood why this should be a criticism of the media, anymore than it makes sense that this is a negative trait of academe; if the people who are best educated and most aware of what is going on are more liberal, maybe that’s because you have to be ignorant to swallow conservatism. What is really suggested by this “criticism” is that the alleged “bias” isn’t bias at all, it’s just a recognition of what is, and that bias is required to lean to the right of this “liberal” position. Indeed, the behavior we’re seeing from the administration is fairly explicit in that we are told that simple facts are “biased”. The news media are not supposed to tell the public the truth about anything because that would bias us against the administration. The real question is not, then, about a bias toward liberalism or conservatism, but rather a belief that “news” should make some attempt to serve the public rather than just the corporate hierarchy.

   …

   Those people really do need reminders. They need to be told every single time they spew right-wing bull. They need to be reminded over and over that reality still holds sway for at least half of the population. Most of all, they need to be told that we’re not talking about forgetfulness and errors and “misstatements” from Condi and George and friends, we’re talking about lying, and they should call a spade a spade.

   Whether Avedon’s right or not about all that (I think she’s clearly right about the media’s limitless charity for Bush administration fraudsters, probably right about some parts of reporters’ policy skew, and probably mistaken about others), the underlying point is awfully damned important: the demographic arguments that “liberal media” bloviators (and their “corporate media” comrades on the Left) aren’t enough to show anything in particular. The perverse sort of ideological identity politics that the Right especially loves these days needs to be called for what it is: pure bluff.

   Read the whole thing. (Thanks, Trish.)

   [Update 2005-03-27: Incidentally, the name is Avedon Carol, not Carol Avedon as I originally wrote. Oy. My bad!]

7. What Is Past Is Prologue 2005-03-04: How Low Can You Go follows up with this fine look at how the Great Americans at MSNBC ensure that the tough questions get asked in spite of the fiendish plot of the liberal media hegemons:

   Then he went on to flagellate that old tired concept that everyone knows is a lie: The Vicious Liberal Media. His commentator? The resentful Ari Fleischer, clearly still smarting from his days as White House Press Secretary

8. Clancy at CultureCat 2005-03-04: Orphan Works: Tell the Copyright Office Your Stories calls for shedding light on one of the rarely-seen but often-onerous unintended consequences of the intellectual enclosure regime: valuable works are left in limbo when you can’t find their copyright holders. I’m sure that making works completely impossible to reproduce for a good 70 years or so is really incentivizing some creative excellence. Somehow.

   Read the whole thing.

9. Micha Ghertner at Catallarchy 2005-03-06: Small Is Beautiful points out something that you just don’t see in most discussions of prying education out of the hands of the bureaucratic State: the way that government monopolization of schools and politicized pressures constrict schools into multimillion dollar all-things-to-all-people facilities–thus forcing down the number of groups that could reasonably get a school off the ground–thus forcing them into crowded splinding-and-sorting centers for thousands of students:

   Would people want to send their kids to small, simple, less expensive schools? Would some parents drop off their kids at an individualized schooling program for a few hours, and then take them to the gym or the community center for a sports league or a friendly pick-up game with other children? Those who are satisfied with the current system of institutionalized babysitting may want to stick with the status quo. Those who would prefer a close-knit atmosphere, where everyone knows each other by name, and where the programs and costs are specially tailored to each individual student’s needs, may conclude that bigger is not always better.

   Read the whole thing.

10. Alina at Totalitarianism Today 2005-03-01: International aid worthy of the title? reminds us of the dirty little secret about government-to-government foreign aid: when you give money to the government instead of to the people in distress, they just waste it.

11. Voltairine de Cleyre (1907-04-28): They Who Marry Do Ill argues (under the title of a particularly delightful turn of phrase) that marriage — whether government-sponsored or wildcatted, whether religious or secular — offends against individualist principles:

    Some fifteen or eighteen years ago, when I had not been out of the convent long enough to forget its teachings, nor lived and experienced enough to work out my own definitions, I considered that marriage was a sacrament of the Church or it was civil ceremony performed by the State, by which a man and a woman were united for life, or until the divorce court separated them. With all the energy of a neophyte freethinker, I attacked religious marriage as an unwarranted interference on the part of the priest with the affairs of individuals, condemned the until death do us part promise as one of the immoralities which made a person a slave through all his future to his present feelings, and urged the miserable vulgarity of both the religious and civil ceremony, by which the intimate personal relations of two individuals are made topic of comment and jest by the public.

    By all this I still hold. Nothing is more disgustingly vulgar to me than the so-called sacrament of marriage; outraging of all delicacy in the trumpeting of private matters in the general ear. Need I recall, for example, the unprinted and unprintable floating literature concerning the marriage of Alice Roosevelt, when the so-called American princess was targeted by every lewd jester in the country, because, forsooth, the whole world had to be informed of her forthcoming union with Mr. Longworth! But it is neither the religious nor the civil ceremony that I refer to now, when I say that those who marry do ill. The ceremony is only a form, a ghost, a meatless shell. By marriage I mean the real thing, the permanent relation of a man and a woman, sexual and economical, whereby the present home and family life is maintained. It is of no importance to me whether this is a polygamous, polyandric or monogamous marriage, nor whether it is blessed by a priest, permitted by a magistrate, contracted publicly or privately, or not contracted at all. It is the permanent dependent relationship which, I affirm, is detrimental to the growth of individual character, and to which I am unequivocally opposed. Now my opponents know where to find me.

    Read the whole thing.

O.K.; that was eleven, not ten. And the eleventh isn’t exactly a blog link anyway. But I did warn you ahead of time that Friday Random Ten would be a name here, not a definite description. And if the dominant link hierarchy in the weblog world is worth breaking up, then I’d have to say that it’s also worth breaking up weblog reading with a bit of material that was written before the turn of the 21st century. Enjoy the subversion!

I’ve spent some time ragging on neo-Confederate mythistory here before; today I’d like to take a bit of time to talk about another of the idiot notions popular with the Stars-and-Bars crowd: the idea that Robert E. Lee opposed slavery, or that he didn’t own any slaves. No he didn’t, and yes he did. Robert E. Lee defended the institution of slavery and personally owned slaves.

Lee cheerleaders love to point out that Lee wrote to his wife, in 1856, that In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil He did write that, but the use of the quotation is dishonest. The quote is cherry-picked from a letter that Lee wrote to his wife on December 27, 1856; the passage from which it was taken actually reads:

In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country. It is useless to expatiate on its disadvantages. I think it however a greater evil to the white man than to the black race, & while my feelings are strongly enlisted in behalf of the latter, my sympathies are more strong for the former. The blacks are immeasurably better off here than in Africa, morally, socially & physically. The painful discipline they are undergoing, is necessary for their instruction as a race, & I hope will prepare & lead them to better things. How long their subjugation may be necessary is known & ordered by a wise Merciful Providence.

—Robert E. Lee, letter to his wife on slavery (December 27, 1856)

Lee, in other words, regarded slavery as an evil–but a necessary evil ordained by God as the white man’s burden. Far from expressing opposition to the institution of slavery, the purpose of his letter was actually to condemn abolitionists; the letter was an approving note on a speech by then-President Franklin Pierce, which praised Pierce’s opposition to interference with Southern slavery, and declared that the time of slavery’s demise must not be sped by political agitation, but rather left to God, with whom two thousand years are but as a Single day. After that reassuring note, Lee goes on to offer an impassioned plea for toleration of the Spiritual liberty to enslave an entire race:

Although the Abolitionist must know this, & must See that he has neither the right or power of operating except by moral means & suasion, & if he means well to the slave, he must not Create angry feelings in the Master; that although he may not approve the mode which it pleases Providence to accomplish its purposes, the result will nevertheless be the same; that the reasons he gives for interference in what he has no Concern, holds good for every kind of interference with our neighbors when we disapprove their Conduct; Still I fear he will persevere in his evil Course. Is it not strange that the descendants of those pilgrim fathers who Crossed the Atlantic to preserve their own freedom of opinion, have always proved themselves intolerant of the Spiritual liberty of others?

And what did the painful discipline … necessary for their instruction mean? One of the sixty-three slaves that Lee inherited from his father-in-law explains:

My name is Wesley Norris; I was born a slave on the plantation of George Parke Custis; after the death of Mr. Custis, Gen. Lee, who had been made executor of the estate, assumed control of the slaves, in number about seventy; it was the general impression among the slaves of Mr. Custis that on his death they should be forever free; in fact this statement had been made to them by Mr. C. years before; at his death we were informed by Gen. Lee that by the conditions of the will we must remain slaves for five years; I remained with Gen. Lee for about seventeen months, when my sister Mary, a cousin of ours, and I determined to run away, which we did in the year 1859; we had already reached Westminster, in Maryland, on our way to the North, when we were apprehended and thrown into prison, and Gen. Lee notified of our arrest; we remained in prison fifteen days, when we were sent back to Arlington; we were immediately taken before Gen. Lee, who demanded the reason why we ran away; we frankly told him that we considered ourselves free; he then told us he would teach us a lesson we never would forget; he then ordered us to the barn, where, in his presence, we were tied firmly to posts by a Mr. Gwin, our overseer, who was ordered by Gen. Lee to strip us to the waist and give us fifty lashes each, excepting my sister, who received but twenty; we were accordingly stripped to the skin by the overseer, who, however, had sufficient humanity to decline whipping us; accordingly Dick Williams, a county constable, was called in, who gave us the number of lashes ordered; Gen. Lee, in the meantime, stood by, and frequently enjoined Williams to lay it on well, an injunction which he did not fail to heed; not satisfied with simply lacerating our naked flesh, Gen. Lee then ordered the overseer to thoroughly wash our backs with brine, which was done. After this my cousin and myself were sent to Hanover Court-House jail, my sister being sent to Richmond to an agent to be hired; we remained in jail about a week, when we were sent to Nelson county, where we were hired out by Gen. Lee’s agent to work on the Orange and Alexander railroad; we remained thus employed for about seven months, and were then sent to Alabama, and put to work on what is known as the Northeastern railroad; in January, 1863, we were sent to Richmond, from which place I finally made my escape through the rebel lines to freedom; I have nothing further to say; what I have stated is true in every particular, and I can at any time bring at least a dozen witnesses, both white and black, to substantiate my statements: I am at present employed by the Government; and am at work in the National Cemetary on Arlington Heights, where I can be found by those who desire further particulars; my sister referred to is at present employed by the French Minister at Washington, and will confirm my statement.

—Testimony of Wesley Norris (1866); reprinted in John W. Blassingame (ed.): Slave Testimony: Two Centuries of Letters, Speeches, and Interviews, and Autobiographies Baton Rouge: Louisiana State University Press (ISBN 0-8071-0273-3). 467-468.

Some Lee hagiographers seem to be completely unaware that Lee ever owned slaves, much less treated them like this. Part of that’s just the warping of tidbits they heard elsewhere–it’s true that Lee did not own any slaves during most of the Civil War–and part of it is, frankly, dishonest fudging–Lee’s sixty-three slaves were, in spite of being legally under his control and forced to work on his plantation, not held under his own name, but rather temporarily under his control as an inheritance from his father-in-law, G.W.P. Custis. Other Lee cheerleaders recognize that Lee did own slaves, but give him props for manumitting them. What they leave out of the record is that Custis’s will legally required Lee to emancipate the slaves that passed into his control within five years of Custis’s death. Custis died October 10, 1857 and his will was probated December 7, 1857 (about a year after Lee wrote his letter on slavery); Lee kept the slaves as long as he could, and finally filed the deed of manumission with Court of the City of Richmond on December 29, 1862–five years, two months, and nineteen days after Custis’s death.

Custis actually gave freedom to his slaves without qualification in his will; the matter of the five years was supposed to be time for Custis’s executors to do the legal paperwork for emancipation in such manner as may to [them] seem most expedient and proper. There’s good reason to read the clause as intending for the five years to serve as an upper bound on settling the legal details, not as five more years for driving the slaves for whatever last bits of forced labor could be gotten. Lee, however, did not see it that way, and set the slaves to for his own profit for as long as he could. We have already seen that some of the slaves disagreed with Lee on this point of legal interpretation, and how he treated those who acted on their legal theory by seceding from his plantation.

Of course, Lee never was very big on secession at all. Those who love to haul out the Confederacy — Lee included — as heros for secessionist self-determination tend to neglect comments such as this one:

Secession is nothing but revolution. The framers of our constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for perpetual union so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.

–Robert E. Lee, letter, 23 January 1861

Secession allowed; anarchy established, and not a government; one sighs–if only.

Robert E. Lee is no hero. He was a defender of slavery and a harsh critic of abolitionism; he was also a slaver who brutally punished those who sought their rightful freedom. There are many reasons to damn the Federal government’s role in the Civil War, but none of them offer any excuse for celebrating vicious men such as Lee.

See also:

• Comment (2005-10-07): Two more letters on the Norrises, and Lee’s letters denying wrongdoing [added 2010-02-02]
• GT 2006-02-24: Michael Fellman’s discussion of Lee’s experience with slavery [added 2010-02-02]
• GT 2006-05-28: Over My Shoulder #25: Lee's views on Reconstruction and civil rights, from Michael Fellman (2000), The Making of Robert E. Lee [added 2010-02-02]
• GT 2006-05-25: How Robert E. Lee’s army treated black soldiers [added 2010-02-02]
• GT 2006-03-24: Michael Fellman (2002), The Making of Robert E. Lee, on the Lee’s views on colonizationism [added 2010-02-02]
• Comment (2007-11-05): Some documentary notes on the 1850 and 1860 census [added 2010-02-02]
• GT 2005-06-26: Lost Causes

Yesterday I offered the following commentary on the debate over the authenticity of the alleged memos on Bush’s alleged no-show for Air National Guard appointments: Blah blah blah. As devastatingly brilliant as that response was, that didn’t stop it from netting some critical responses from intelligent people; so it’s worth taking a bit of time to follow up a bit on why I think that the issue isn’t worth taking a bit of time to follow up on. (If this seems paradoxical, you’ll have to review the object language / meta-language distinction.)

Sam Haque defended the claim that Bush’s war record does matter:

Well the issue is important beacause as President he shouldn’t be giving orders for US soldiers to do things he wouldn’t do himself. These countries are being invaded on the authority of President who knows of war from Hollywood. To quote Vonnegut, the ones who hated war the most, were the ones who’d really fought.

I responded to some of these points in situ on the page; but there is a larger point to insist on here. Although I certainly agree with Sam that Bush’s bellicose Hollywood strutting (bomber jacket, War President, and all), when held up in comparison to his (perfectly rational!) unwillingness to ship off and fight in Vietnam, reveals him as a pretty contemptible character, I don’t think it would have made him better to have signed up to fight in Vietnam. John Kerry’s voluntary enlistment in Vietnam was bold but it was not courageous–there is no virtue in letting yourself get duped into volunteering to ship off and kill people for another dumb imperial war. John Kerry was courageous to live up to his own conscience and, after getting out of Vietnam as quickly as possible, standing up to oppose the war. Which is part of the reason it’s too damn bad that he can’t seem to live up to that anymore.

All well and good, but the thing is that none of these issues, or the issue that Sam originally raised, are the issue that’s being debated in the bluster over the Killian memos. All the parties to that debate are already well aware that Bush dodged the draft by heading into the Texas ANG, and that part of his ability to land that cushy position was due to being the fortunate son of a powerful Dad. The debate here isn’t over whether he dodged the draft, but whether (a) he dodged the draft and then failed to show up for some of the pointless rigamarole involved in a pointless position he never should have been coerced into taking, or (b) dodged the draft and then showed up for all the stupid stuff he was told to show up for. (Actually, that‘s not even the debate; the debate is over whether or not some of the evidence claimed for (a) is genuine or a forgery.)

On that note, I echo my own statements from yesterday’s post, and sympathize with John Lopez’s comments:

Not at all. My interest is in the fact that Dan Rather is a confirmed lying sack of garbage. I don’t care one iota that Kerry and Bush dodged the draft – I’d say “good for them”, if I didn’t hold them both in utter contempt. As for what “the most important political issue in the world” is, that happens to be my one-and-only life, which is affected more by the culture of willful self-deception we live in than by, say, the mess in Iraq.

George Bush had every right to dodge the draft, and happened to have the opportunity at hand. If he was also able to get away with skipping some of the pointless rigamarole that his draft-evasion technicality supposedly required, then more power to him; would that everyone had the opportunities that he did.

If there is any interesting issue here, as John Lopez rightly points out, it hasn’t got anything to do with whether or not Bush actually failed to show up for something or another. The only real point where interesting discussion might be possible (unless other observers are willing to honestly take on the issue of individual rights, the draft, and Vietnam–and they are far too busy dickering over the latest inconsistent poll numbers for that) is CBS’s conduct: whether one thinks that they published a major exposé based on forgeries, and if so, how culpable they were in the process.

John thinks that they are forgeries, and that CBS and Dan Rather are being revealed as at best casually indifferent to the truth. I don’t have much of a dog in that fight–I haven’t spent much time researching the issue, have mostly skipped over posts about it on other blogs because of the fact that I don’t care, and only mention it at all here in order to point out why I think the whole debate is a waste of time–in particluar when it’s being pursued by apparatchiks such as Drum or that other Charles Johnson dude, who–unlike John Lopez–are trying to make some partisan hay out of the memos (whether at Mr. Kerry’s or Mr. Bush’s expense). I will say, though, that I think that, say, the on-going disaster in Iraq and the never-ending stream of lies and Newspeak coming out of the ruling class in the attempt to justify it or explain it away, or the know-nothing bellicosity that the rank and file of the Right lap up, is a lot more troubling than the sort of nonsense that’s produced by the everlasting jabber of court intellectuals talking to each other about each other’s opinions. (N.B.: I’ve read too much of John Lopez’s excellent contributions at No Treason to include him in this characterization–but I do think that he has–as we all do sometimes–fallen victim to one of its smelly red herrings.)

If you want cases that reveal Rather and his colleagues in network and cable news as a bunch of dishonest gasbags, war coverage is where it’s at. (When PIPA found that television news actively made you stupider about the Iraq War, nobody should have been surprised.) And these are the sorts of lies and prevarication and ruddy-faced ignorance that actually hit home, that most people end up listening to and arguing about and having to sort through when they think about how politics impacts their lives. Not to mention, say, the crying need for rational discussion of abortion rights–which reminds me that I need to get back to part II of Pro-Choice on Everything–or something, Jesus, anything that actually bears on your life or the lives of some folks that you know.

The kind of gossip-rag material that flies around most election coverage, on the other hand, is an excellent indicator of how degraded political culture has become. But the rules of the game with the chattering class are so twisted that it’s no longer clear that either truth or rationality is even expected–even part of the rules in the language game. Or perhaps that these terms could, in those contexts, only be deployed to indicate the conformity of a position to the party line. Spending much of any time trying to get to the bottom of this sort of noise, or to correct it, seems much less to the point than simply working to replace it; certainly it’s not a strategy that has ever seemed to me to be well-justified by its success. The sort of people who bring themselves to hang on the twists and turns of issues such as these–who provide the major market niche for channels devoted to 24-7 soundbite repetition–who are outraged at Dan Rather but not at Brit Hume (or vice versa)–are not really the sort of people who are worth worrying about, or addressing, or trying to convince of the bankruptcy of the professional news media.

Further reading:

• GT 2004/08/16: The Long Memory
• GT 2004/06/12: Outrage Fatigue
• GT 2004/03/20: The War on Iraq One Year On: Countdown to Regime Change
• GT 2004/02/08: What you mean we?
• GT 2003/11/12: White House Press Flack Tells All
• GT 2003/11/12: Roderick Long Unblogs Veteran’s Day
• GT 2003/08/17: Who Has the Better Argument? We Report, You Decide

[Minor update 2004-09-19: typos fixed.]

Let’s review, so I can see if I’ve got this straight.

In the early 1970s, the United States government was hellbent on pursuing an immoral and strategically disastrous war in Vietnam–a war that nobody should have fought in, let alone forced to fight in–which, before it was over, killed fifty thousand American soldiers and murdered about 4,000,000 North and South Vietnamese civilians. During the war, many of those who were fortunate enough to be able to flee and defy the draft, or to sidestep it through cushy “military” assignments far away from the fighting, did so–because they didn’t want to participate in a war they considered morally indefensible, or dangerous to their person, or both. One of those people was a young George W. Bush–who , admittedly, supported the war, but, understandably, didn’t much want to fight in it. So he used his fortunate position as the son of a wealthy aristocrat and powerful Texas politico to avoid being shipped off as a slave to fight and possibly die in Vietnam, through the technicality of joining the Texas Air National Guard. That might have made him a hypocrite then; and it certainly makes him contemptible for strutting around in his bomber jacket in Caesarian triumphs today; but it was certainly a perfectly understandable exercise of his natural human right not to be forced to fight against his will.

At some point, he requested a transfer and shipped off to the Alabama National Guard. While using a legal technicality to get out of being forced to go to war, he may–or may not–have declined to show up for some of the pro forma rituals of his pro forma position. In any case, he got away with anything that he did, and was eventually discharged without complaint from the military.

CBS thought there may have been some more direct evidence that Bush had failed to show up for some of the pro forma rituals of his pro forma position. A pro forma position he was using to get out of being forced to fight and die in a war that he didn’t want to fight and die in. Some people, though, allege that these documents may have been forged.

So what we’re arguing over is whether (A) Bush dodged the draft (as he had every moral right to do) through a cushy ANG position to fulfill red tape for avoiding military enslavement, or (B) Bush dodged the draft (as he had every moral right to do) through a cushy ANG position and then didn’t show up for some of the pointless rigamarole that his position was supposed to entail as part of the red tape for avoiding military enslavement.

And around the third anniversary of the September 11 massacre, as Pinochet prepares to face trial for his crimes, as even the CIA admits that Iraq is disintegrating and 13 civilians were murdered live on the air by American soldiers (who bombarded them with seven rockets), this is, apparently, the most important political issue in the world to argue about on your weblog (cf. Kevin Drum 2004-09-09, that other dude named Charles Johnson on 2004-09-11, No Treason! 2004-09-11 10:42am, No Treason! 2004-09-11 8:34pm, Matt Yglesias 2004-09-14 , This Modern World 2004-09-14, etc.–if you’re into that sort of thing).

Blah blah blah. Jesus. Where are all the good male political bloggers?

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.)