ES -- DX/CL -- isee -- cboe put/call -- specialist/public short ratio -- trinq -- trin -- aaii bull ratio -- abx -- cmbx -- cdx -- vxo p&f -- SPX volatility curve -- VIX:VXO skew -- commodity screen -- cot -- conference board

Thursday, March 31, 2005


soft or hard?

angry bear takes the measure of two possible economic landings for the coming american recession -- and detailing soft and hard. the ongoing debate is outlined by brad delong. 100% Free Dating website!

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Wednesday, March 30, 2005



at reason (a place i shouldn't expect to understand, perhaps), an overview of a new film, mondovino, which examines the democratization of fine wine. typically, reason finds it laudable.

i can not. publisher's weekly had this to say about lawrence osborne's book, "the accidental connoisseur":

By the last chapter, Osborne can't say exactly what Chateau Lafite Rothschild tasted like, and he has just encountered the foulest bottle of his life. But he also sounds strangely contented, because he's found the rare world where aesthetics still matter—even if the terminology and the people who employ it can be maddening.
this is why the americanization of wine is an awful thing. america represents the democratic and pragmatic -- the fucking wine box -- and the democratic and pragmatic are the death of the pretentious and aesthetic.

before you pooh-pooh pretense, consider that it is fundamental to every human view -- including (perhaps especially) vaunted reason. pretense is furthermore the seed of aspiration. it is the articulation of the human need to be better and higher and uncommon -- to be apart.

fine wine is one of the few concepts to stand in modernity, defiant, against the communization, the descent following individual empowerment to the standards of the lowest common denominator. the egalitarian ethic (itself a pretense) demanding the destruction of the elite works against this fundamental human aspiration on all fronts in an american society that merely pretends to be classless.

note that it is not change i eschew -- change is inevitable. no roman would understand as wine what we drink today, and there's nothing to lament in that. what is lamentable is this: yet another devolution of the sniffy and snobbish and rare into the commonplace and widespread. the wal-marting of wine, as it were.

is it useful? is it utilitarian? is it empirical? is it economic? yes, gads yes! no one can argue that it isn't.

but is it aspiration to something finer? utterly not. this is what is lost. and so is it the basis of a renaissance? i must think not, and if it is it comes with that heavy qualification.

i submit that it is not enough in life to simply be joycean, to celebrate the mundane and efficient and pretend that the possibility of or the aspiration to something more is nonsensical because it may be difficult or obscure or even impossible. it may be nonsense -- but it is human and undeniable. this is the appeal of fine wine, of all great and elite things, and to understand this is to see that terrior is the perfect understanding of fine wine. its fundamental tenet is that place and particularity of the finest grain truly matter, in fact make all the difference. about what else can we say this anymore? what else is so nakedly and unashamedly elitist? it is in this that fine wine finds its durability on the world stage, and the old world vintners are not mad to fight to preserve it.


schiavo and the slippery slope

via reason, a sensible examination of the other slippery slope -- not the one leading to an american theocracy of right-to-life zealots, but the one ending in an orwellian death-management bureaucracy.

i've said before here that i don't think right-to-die ethics are particularly applicable in schiavo's case -- she being long dead already -- and i do think her parents are acting out a terrible guilt complex over their perceived culpability in initiating schiavo's state.

but that doesn't make ms. valko's point any less salient. while physicians make impossible decisions about offering treatment every day, those who refuse vital treatment on their own fallible judgment of "futility" are abdicating their hippocratic responsibilities in no trivial way, and i'm not at all sure that any policy which will inevitably be designed at least in part with the incentive to make money and clear beds can also be in the best interests of the patient or society.

again, this is an issue of great complexity and more than one possible answer. no one should minimize that, nor the depth of the arguments on both sides. but i can't envision an ethical human system engineered to put those facing difficult odds out to pasture for the sake of efficiency, medical or otherwise. while such a process may seem to serve the greater good superficially, i feel it cannot morally and ultimately without seriously undermining our sense of life's worth.


the carry trade

building on yesterday's observations, i read through bill gross' march letter again for his ideas on foreign central bank buying, which (as he concludes as well) is "mispricing" the american bond market.

first, the counterpoint:

an interested reader might wonder why our durations and overall strategy appear so defensive. After all, if foreign central banks and others continue to absorb 70%+ of the bond market's new supply (900 billion out of an estimated 1.3 trillion in 2004), why wouldn't this "squeezing" out of domestic investors continue unabated, with yields continuing to move lower? The insensitivity to price/yield exhibited by Asian central banks in an effort to cap their own currencies might seem just as illogical 50 basis points lower as it does right now. And if the lack of global aggregate demand reflected in a surfeit of savings is really the primary cause, the malady is not likely to improve for years.
to which he must acquiesce:

Point granted. We might be at the mercy of a bond market tsunami here, whose first wave has struck and is now receding, only to be followed by more of the same in a few short months. This possibility is part of any interest rate guessing game except it is complicated in this new instance by buyers who have non-interest rate concerns.
but -- and a rather large but:

Still, there are limits. Why would a central bank buy 10-year Treasury paper below 4% if it expected 3-month Treasury Bills to be yielding 3½% by the end of the year? It could cap its currency just as easily by going the short maturity route without risking future price losses. And for those institutional foreign bond holders, and the "hedgies" domiciled in the Caymans, there’s no doubt too that a higher and higher short rate reduces and in some cases eliminates "carry," leading to collapsed positions and ultimately higher yields further out on the curve.
this carry trade grew massive and widespread over the last couple years, as surfeit liquidity combined with a steep yield curve to enable global banks and hedge funds -- stuffed with uninvested capital looking for a moneymaker -- use that capital as collateral to borrow at low short-term rates and invest in higher-yielding investments, including longer-term bonds and mortgages.

moreover, many may have invested in emerging markets bonds for their high-yield sink. spreads (the yield difference between EM bonds and treasury bonds of like duration) are remarkably low, indicating great optimism and/or heavy investment in these riskier assets.

the appeal of this trade evaporates when the short-term borrowing rates (which must be refinanced regularly) rise vis-a-vis the high-yield investment. this is exactly what a flattening yield curve is. for those who have more recently invested in EM bonds in search of yield, it means holding a high-risk asset for increasingly little return -- a return that could easily be wiped out by volatility overseas.

the carry trade wasn't installed in a day. the trade is sometimes difficult to unwind -- especially for those who made 30-year fixed rate mortgages with their yield-seeking capital. that money has been lent and cannot be called. and someone is holding that risk, and no one is really sure who it is.

rising rates should be well anticipated by many. however, inevitably, someone will get caught out in the storm -- and one has to hope that whoever it is isn't important enough to spark a panic. the odds of such a thing happening get greater the faster the fed is forced to move, especially if unpredictably so. as the economist noted:

The IMF fears the bond market will be caught out in 2004, much as it was in 1994. Back then, markets were similarly bracing themselves for a gradual shift to a tighter monetary policy. Short-term interest rates were low and longer-term rates high, in anticipation of the economy reaching full strength. As a result, the "yield curve" at the beginning of 1994 was unusually steep -- almost as steep, indeed, as at the start of this year (see second chart).

Sure enough, in February 1994, the Fed started raising rates. But it went further and faster than anyone had anticipated: seven hikes in 12 months doubled the federal funds rate to 6%. As short-term rates caught up with long, the yield curve flattened out. The liquidity tap was turned off; the carry trade miscarried. Investors could no longer borrow cheap money to lavish on emerging markets. Emerging-market bond yields shot up. The result was Mexico's "tequila" crisis, in which the country found itself with more debt than it could repay and a currency peg it could not defend.

This time might be different. Few emerging markets are any longer in the business of defending unsustainable currency pegs, as Mexico was in 1994. If emerging markets do fall out of favour with foreign investors, their exchange rates can take some of the strain.

The IMF is still worried, however. "Valuations on emerging-market bonds, especially sub-investment grade bonds, appear vulnerable to an increase in underlying US treasury yields," it says. As the Fund points out, the notion that this time it's different has led many an over-optimistic soul to repeat this time exactly the same mistakes he made last time.
the paramount question is whether -- in spite of the massive imbalances in play -- the fed can maintain control of the leviathan and quell the possibility of a market riot predicated on a loss of confidence in the power of the fed. given the inflation data i talked about yesterday, i have serious concerns about their ability to pull it off.

Tuesday, March 29, 2005


a new era

from angry bear, more evidence of the massive housing bubble, which has made buying a home in chicago a surefire moneyloser.

espcially entertaining, as it was in 1999, is the new era hype:

In Miami, Ron Shuffield, president of Esslinger-Wooten-Maxwell Realtors, predicted that a limited supply of land coupled with demand from baby boomers and foreigners would prolong the boom indefinitely.

"South Florida," he said, "is working off of a totally new economic model than any of us have ever experienced in the past."
with core consumer inflation data rising to 3%, inflation is becoming a serious concern. (raw cpi data here.) more spectacularly, however, inflation in the pipeline seems to be building. the widely-reported core producer price index (ppi) -- prices paid by manufacturers for the goods they use -- has risen to 4.7%. the difference between ppi and cpi rates comes out of profits for manufacturers. while companies can choose to take a dent in the bottom line, they are obviously more inclined to pass along inflation to the consumer.

moreover, while the well-known ppi focuses on finished goods, it is often led by the ppi for intermediate and crude goods -- elements of finished goods and raw materials, respectively. crude goods were running in mid-2004 at annual inflation rates of over 20% -- thanks in part to the declining dollar -- which has spilled over into intermediate goods, which have been inflating for almost a year at 7-9%, the highest levels since the stagflation of the late 1970s-early 1980s.

employment too is doing very well. the unemployment rate is 5.4%, and initial unemployment claims have fallen to a 4-week average of 321,750. while great news for the now, these numbers are too low for the good of the future -- when claims get into the area of 300k, it indicates a tight labor market that will spur wage inflation and limit growth in coming quarters.

the squeeze on profitability (already being seen by the economist) that comes with pipeline price and wage inflation pressures will result over the next few quarters in higher consumer prices (cpi inflation), more borrowing, slower growth and hiring (higher unemployment) or profit warnings -- or any combination of the four and quite possibly all. and that prospect is surely behind the steady rate raising over at the fed as well as the handwringing by some fed governors to starting taking more drastic measures; the fed's mandate is cpi stability, and it is duty bound to squelch borrowing and therefore economic activity with interest rate increases to try to keep a lid on inflation.

surprisingly, in spite of all this evidence for higher future rates and a slowing economy, the sensitive 30-year bond yield remains low, flattening the yield curve. how long will it remain so? i suspect that inflation surprises may lie ahead -- the ten-year treasury today yields 4.58%, while the ten year TIPS bond yields 1.86%, giving an approximate annual cpi forecast of 2.7%. this indicates that the market expectation for inflation over the next ten years is even less than the current cpi. this is primarily a function of asian central bank purchasing suppressing rates -- when it slows, as it eventually will, treasury yields will rise with inflation expectations and the dollar's fall.

what does it all mean? that expected inflation is probably too low -- that inflation may be surprisingly strong and difficult to counteract, meaning more aggressive fed action than we've seen and higher than expected rate increases. higher rates mean more expensive mortgages, of course -- and perhaps the end of the housing bubble.

the fed's handiwork to this point is having its effect in the economy -- consumer confidence data is weakening. while the february headline number looks encouraging, what is not is the most relevant measure to economic forecast -- future expectations (95.7) less present situation (a strong 116.4) equals -20.7. whenever this figure reads negative, it forewarns of a coming recession with an long lead time (often years). it first began to flirt with the zero line in early 2004, and has in recent months dropped several points. more considerable recessions often are preceded by a reading of less than -50. (the most recent report is here.)

the economist makes the case for watching the leading economic indicator published by ecri, which declined steadily into november 2004, but has rallied since. with something like a six-month lead on actual economic conditions, this would indicate slow business activity until midyear -- and that only if the leading index continues to rise.

so a recession in 2005, probably accompanied by sharply higher interest rates, looks increasingly likely. the difficulty is in assessing the risk of the imbalances (including consumer debt and current account deficits and government debt) built up around the american economy act to take the situation beyond the control of the fed. the possibilities of a hard landing are discussed by nouriel roubini and brad setser in their recent paper and roubini's guest blogging appearance at wsj online.

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Monday, March 28, 2005


andrew bacevich

chalmers johnson, himself a compelling and insightful anti-imperialist author, reviews a new book by andrew bacevich titled, "the new american militarism".

"In the end, the effort to rebuild American military power while restricting its use, initiated by [Gen.] Creighton Abrams and carried to its fruition by [Gen.] Colin Powell, failed. Or, more accurately, because that effort generated a capacity for global power projection surpassing anything the world had ever seen, reticence about how and where to use that power soon went by the board."

"It had taken the officer corps fifteen years, from 1975 to 1990, to recover from Vietnam," Bacevich writes. "It took another fifteen years, from 1990 to 2005, to fritter away most of what the reform project had wrought. By the time of [Gen. Wesley] Clark's botched Kosovo campaign, cracks in the edifice were clearly becoming visible. It was left to the administration of George W. Bush to complete the demolition."

Bacevich's main argument, only briefly outlined here, is the most powerful and compelling part of his highly original analysis. He also has chapters on the role of neo-conservative thought, Christianity and militarism, the baneful influence of civilian strategists (such as Albert Wohlstetter, Deputy Secretary of Defense Paul Wolfowitz's teacher at the University of Chicago), and what he calls "World War IV," the attempt by the United States to dominate the Middle East in order to guarantee our oil supplies. He concludes with a chapter on what to do, which is utterly sound if politically impossible. Every thoughtful American should read this book.
having read and valued johnson's work, i will do just that.



another revolution is upon us in yet another color-coordinated exercise -- complete with chicks. this has been a topic of dissertation here before, noting the role of gene sharp's directives in foreign agitation and the apparent contrived artifice of the "revolts" in places like lebanon, ukraine and georgia -- and i'm not sure what to add to that.

the big difference this time, of course, is that the mob did what mobs often do -- starting rampaging and killing. the pacifist directions in sharp's outline are willfully naive of the violent and capricious nature of crowds, it seems, but i doubt that the folks implementing his ideas are.

it's interesting to see the extant leader in kyrgyzstan, askar akayev, directly accuse the osce, that collection of american ngos -- including freedom house -- that first began the coordinated and well-financed agitation for revolution on principles forwarded by sharp in 1999 and has been active ever since.

the role of american military bases in country is also contentious; as reported by raimondo, they were built up in kyrgyzstan, in spite of political reservations, prior to the iraq war with the threat of removing american aid. the reticence of the akayev government in backing the iraq war and its favoring of permanent regional power russia may have condemned it in the fate-tempting great-power game being played out between russia, china and america across eurasia.

i wonder how many americans understand that american money, power and government, in the nebulous form of ngos, are much of what stands behind this spate of "revolutions" -- which, after all, serve the bush administration's complementary goals of confronting russia and global democratic revolution -- not to mention furthering american imperial power and client state dependence abroad.

Sunday, March 27, 2005


jeffrey sachs

sachs is the acknowledged champion of the washington consensus, the economic prescription of free markets so brilliantly described in daniel yergin's "the commanding heights" (and its pbs analogue).

he has also become one of the most vociferous advocates of rich country aid to relieve third world poverty. his recent book, "the end of poverty", destroys the notion that washington consensus free market reforms can do anything for the impoverished world. the defense he offered on cspan, in which he was frequently emotional, is one of the most lucid circumscriptions of free market effectiveness i've ever heard -- it should be mandatory viewing for anyone who considers themselves politically aware.

among the intense points he made -- the washington consensus worked in poland because poland had roads, electricity, and was not disease-ridden and ecologically deteriorated; this is not the case in ethiopia. the world bank offered $6/year/capita for health care in such countries, where the minimum for any effective system is $40-50 -- and then says it cannot commit more because of concerns about the effectiveness of those miniscule sums. rich donor nations could all but eliminate the problems of disease, food supply, infrastructure and transportation cost with the smallest sliver of their wealth; without such commitment, foreign direct investment (so critical to washington consensus resuscitations such as poland) cannot and will never happen -- and sachs boldly speaks to the duplicitous stupidity of free market "one-answer" economists who dreamily believe that poland and ethiopia are abstractly identical. debt cancellation is essential -- so important that sachs openly recommends that poor nations simply quit paying, regardless of what the g8 nations say.

i'll work to find a transcript of his talk on c-span book tv, but his book is in any case -- as an impassioned and rational demand for radically increased aid to the impoverished world by the world's leading free market economist -- a self-evidently important read.

UPDATE: via crooked timber, sachs battles on.

Saturday, March 26, 2005


berlin diary

among the many books i've recently read (and will hopefully get a chance to muse upon here) is the hypnotic "berlin diary" of european affairs correspondent william shirer, covering the years 1934-1940 (but in most detail, 1938 on). it's a fascinating insight onto many aspects of interwar europe, but none so much as the evolution of the state of mind of the german people -- a group which shirer came to despise irrationally (by his own admission) for its gullibility, stupidity, ethical duplicity and inertia in the face of the lies and propaganda of their government as it conditioned them for total war.

there are a hundred magnetic passages to cite. this from january 24, 1940:

I think Pervical W., a retired American businessman of German parentage who has spent most of his life in this country, sees something I've been trying to get straight. I had never met him before, but he dropped up to my room this morning for a chat. We discussed the German conception of ethics, honour, conduct. Said he: "For Germans, a thing is right, ethical, honourable, if it squares with the tradition of what a German thinks a German should do; or if it advances the interests of Germanism or Germany. But the Germans have no abstract idea of ethics, or honour, or right conduct." He gave a pretty illustration. A German friend said to him: "Isn't it terrible what the Finns are doing, taking on Russia? It's utterly wrong." When Mr. W. remonstrated that, after all, the Finns were only doing what you would expect all decent Germans to do if they got into the same fix -- namely, defending their liberty and independence against wanton aggression -- his friend retorted, "But Russia is Germany's friend."

In other words, for a German to defend his country's liberty and independence is right. For a Finn to do the same is wrong, because it disturbs Germany's relations with Russia. The abstract idea there is missing in the German mentality.

That probably explains the Germans' complete lack of regard or sympathy for the plight of the Poles or Czechs. What the Germans are doing to these people -- murdering them, for one thing -- is right because the Germans are doing it, and the victims, in the German view, are an inferior race who must think right whatever the Germans please to do to them. As Dr. Ley puts it: "Right is what the Fuhrer does." All this confirms an idea I got years ago: that the German conception of "honour", about which Germans never cease to talk, is nonsense.
and this one, from september 3, 1939, observes the duped proletariat at the moment of shock:

I was standing in the Wilhelmplatz about noon when the loudspeakers suddenly announced the England had declared herself at war with Germany. Some 250 people were standing there in the sun. They listened attentively to the announcement. When it was finished, there was not a murmur. They just stood there as they were before. Stunned. The people cannot realize yet that Hitler has led them into a world war. No issue has been created for them yet, though as the day wears on, it is plain that "Albion's perfidy" will become the issue as it did in 1914. In Mein Kampf Hitler says the greatest mistake the Kaiser made was to fight England, and Germany must never repeat that mistake.

It has been a lovely September day, the sun shining, the air balmy, the sort of day the Berliner loves to spend in the woods or on the lakes near by. I walked in the streets. On the faces of the people astonishment, depression. Until today they have been going about their business pretty much as usual. There were food cards and soap cards and you couldn't get any gasoline and at night it was difficult stumbling around in the blackout. But the war in the east has seemed a bit far away to them -- two moonlight nights and not a single Polish plane over Berlin to bring destruction -- and the papers saying that German troops have been advancing all along the line, that the Polish air force has been destroyed. Last night I heard Germans talking of the "Polish thing" lasting but a few weeks, or months at most. Few believed that Britain and France would move. Ribbentrop was sure they wouldn't and had told the Fuhrer, who believed him. The British and French had been accommodating before. Another Munich, why not? Yesterday, when it seemed that London and Paris were hesitating, everyone, including those in the Wilhelmstrasse, was optimistic. Why not?

In 1914, I believe, the excitement in Berlin on the first day of the World War was tremendous. Today, no excitement, no hurrahs, no cheering, no throwing of flowers, no war fever, no war hysteria. There is not even any hate for the French and British -- despite Hitler's various proclamations to the people, the party, the East Army, the West Army, accusing the "English warmongers and capitalistic Jews" of starting this war. When I passed the French and British embassies this afternoon, the sidewalk in front of each of them was deserted. A lone
Schupo paced up and down before each.
throughout shirer's book, i was repeatedly jolted by similarities to the society i live in -- its willingness to believe convenient lies, its refusal to work up the ambition to demand truth, the duplicity of ethics and the frail vacuity of hallowed concepts.

but i also couldn't helped but feel pity for them, the german people. a stupid mass of animals, after all. are they to be blamed as they run off the cliff behind their leader? both yes and no, i think -- i've no idea how a crowd of mere men can withstand the assault of ideas that lure them to their destruction, and yet they must. odysseus tied himself to the mast, and yet our ropes are the mere rule of law and in our age seem increasingly unable to withstand the siren's song.


insatiable voracity and the peacock's plume

i picked up and am nosing through an anthology of the writings of gastronome m.f.k. fisher, which includes her essay "an alphabet for gourmets". (if you are a lover of food, please read it.) written in 1949, one can call it wonderful and insightful prose but hardly flawless in conception -- in prognosticating the future, she writes,

It is safe to say, I think, that never again in our civilization will gluttony be condoned, much less socially accepted, as it was at the height of Roman decadence, when a vomitorium was as necessary a part of any well-appointed home as a powder room is today, and throat-ticklers were as common as Kleenex. That was, as one almost forgotten writer has said in an unforgettable phrase, the "period of insatiable voracity and the peacock's plume," and I am glad it is far behind me, for I would make but a weak social figure of a glutton, no matter what excesses of hunger I could confess.
i laughed out loud at that brilliant turn, so applicable to postmodern america in its own decadence, the origin of which fisher is no more revealing of.


schiavo and catholicism

this boston globe article notes the vatican's stand in favor of schiavo's continued feeding and its catholic context -- the ailing john paul, the role and meaning of suffering and the evolution of pius xii's interpretation of "extraordinary means".

also, this overview provides a catholic synopsis on the current of ideas and how they influence our views on death and dying.

Thursday, March 24, 2005


libertarian panics

from brainwash, a link to a social study of libertarian panics in american history.

in as much as i view the arc of individualism as leading to the sort of majoritarian deterioration that plato feared so rightfully, i see real trouble in the prerogatives being taken by the executive and (to a lesser extent) legislative branches of american government which are extraconstitutional -- and, in some cases, unconstitutional. laws like the patriot act are an ancient exercise in plebiscitarian societies: politicians capitalizing on the fear and delusion of the masses in times of crisis (real or manufactured in propaganda) to machinate for the consolidation and expansion of power beyond law with stupid popular consent. the political aftermath of 9/11 is at heart another episode of pompey's pirates -- and it is made possible now as it was then by the strength of the populares, the gullible masses and their self-serving advocates, in the political process.

but i do entirely agree with the study's idea -- that america is paranoid about infringements on their individual freedoms and has done too much to free itself from social constraint. it's a dominant feature of western civilization in decadence -- the impulsive ideas of the renaissance carried much farther than is healthy for our or any society. the virulent reaction against any new limitation or tax is symptomatic, as is the burgeoning development of a welfare state that dangerously concentrates power and wealth so as to assume the mundane responsibilities that are mandatory of truly free men. individual emancipation is the goal, and irrationally so -- leading to a weak and corruptible nanny state fed upon mountains of unpayable debt.

in essence then, this admixture of socialism and libertarianism -- both facets of the metastasis of anarchism -- is the enemy of society, and it is sensible to see the decline of society in its prescription. but this is not because the law impinges on the liberty of the masses; rather, it is because the law can no longer stand against the unleashed will of the mob! the populares rewrite the law to fit political expediency with the consent of the somnolent people, who can only be awakened momentarily to stop the law from injecting any modesty into the political dialogue.

the panics we need are not libertarian, but social. to the extent that they exist, their aims are frustrated by the loggerheads of a decadent pluralistic society with too many voices that cannot muster decisive direction. and so the slide continues, even though many can see the problem.

We need no panics. I'm tired of hearing, "There ought to be a law against that. The government needs to step in and do something." That is how we ended up with a bloated nanny state that incentivizes stupid choices.

Individual emancipation is my goal. I do not wish to bo forced to live your lifestyle, nor do I wish to force you to live mine. Can't we all just get along? My libertarianism is no enemy of society. It is a defence of society.

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i rather think it probably is, mr twba, whether you see it so or not. the wish to be left alone -- to minimize your level of social interaction -- is both fundamentally antisocial and very common. society by consensus no longer makes mandatory the human connections that are the essence of a functioning social organization. but when sensible tempers seek stoic disengagement, who is left to moderate?

"individual emancipation" -- what does it mean? in the end, only that you should not have to do anything you do not want.

this is hopelessly utopian, of course, although no one seems to be able to admit it. and in practice it has been terribly destructive.

on the one hand, as a friend of mine recently said, "our rights seem to multiply with every graduating law school class". i agree -- the west (particularly america) has first been suffering from the tyranny of the minority, the anarchist impulse, since the mid-19th c. people have essentially decided that church and state and civilization are all secondary to their personal development. the individual priority is extremely democratic, but ultimately selfishness makes compromise and consensus to action all but impossible to arrive at. it is the fertilizer of decadence -- for so long as tolerance remains.

the reaction to that development, on the other hand, has been the end of such tolerance -- majoritarianism -- the conclusion that the rights of the minority have become too great an impediment to honor. this is what we're seeing increasingly in the actions of congress over the last 20 years, an organization so viciously partisan now as to be nothing more than a party battleground. majoritarianism knows no law -- only the will of the people. and when it is finally concluded that congress can no longer be effective because of the infighting and intrigue... well, sufficient power has already been accumulated in the presidency.

in this way, individualism has a suicidal democratic will -- the fulfillment of its ideals leads to chaos and its own destruction in tyranny.

many of the laws we get of which you complain are, i think, attempts to cut a compromise where none can be cut -- where tolerance and amicable understanding of a collective destiny, that individual advantage and personal "fairness" in every last detail do not mean everything, would work -- but a razor-thin demarcation of selfish rights in an attempt to ensure that no one is slighted can never. the arrogant hypersensitivity to slights is wildly manifest now, and its a product of selfish individualism carried too far. it is the source of much radicalism among hotter tempers, imo (though i hope not yours).

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When I wrote, "Can't we all just get along?" I may have been jokingly paraphrasing the great philosopher Rodney King. I wasn't suggesting that we minimize social interactions, rather that we learn to interact without stepping on each other's toes. I wish to be left alone by tyrannical state and church. Free men working for their self interests construct the best society.

majoritarianism knows no law -- only the will of the people. and when it is finally concluded that congress can no longer be effective because of the infighting and intrigue...

Congress is not effective now. Care to pick an over/under for the year of revolution?

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When I wrote, "Can't we all just get along?" I may have been jokingly paraphrasing the great philosopher Rodney King. I wasn't suggesting that we minimize social interactions, rather that we learn to interact without stepping on each other's toes. I wish to be left alone by tyrannical state and church. Free men working for their self interests construct the best society.

when it is finally concluded that congress can no longer be effective because of the infighting and intrigue...

Congress is not effective now. Care to pick an over/under for the year of revolution?

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I will figure out the preview button eventually.

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Care to pick an over/under for the year of revolution?

lol -- no thanks. too depressing. but i do think it's quite a lot closer than most anyone thinks. my lifetime, anyway.

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metastasis of anarchism

i'm always happy to see i'm not the only one. matt yglesias links to "conservative blogger john cole", whom i've never read before. cole sees in the schiavo case another manifestation of the end of conservatism.

And that is what this is- politics and symbolism on the right to life battlefield. I have said it before- this is jihad for these folks. They don't give two hoots in hell about Terri Schiavo- this is about abortion, religion, and most of all, about power and control. Their concept of morality is king, you see- your behavior in the bedroom, your choice in sexual partner, your desires about end of life decisions, abortion, even the medication you use to ease the pain when you are dying of terminal diseases- their religious text should have authority over you, and if all these 'small-government strict constructionists states right's advocates' have to attain that through government proxy, so be it.

How radical are these folks? I predicted they would charge Schiavo with a crime. I was wrong. Instead, their full-on assault of the judiciary at both the state and federal level as well as their perversion of the legislative branches, and their misuse of the Federal and State Executive branches by Brothers Bush was not enough, and now they are attempting to use state level agencies, the ones relied upon for the non-partisan delivery of services, as a weapon[.]
the radicalism within the right-to-life movement has reared its ugly head before, articulated (if that is the word) by those who are convinced that their interpretation of holy scripture outweighs all the law and morality of a society, empowering them to sit in judgment of their fellow man. it remains to be seen how our society can work to counter violent individualism of this type. one can say that the anarchism of the 19th century has never really been addressed and resolved -- that instead, once suppressed, it metastasized and went mainstream, infecting us all and reducing many to mere savagery.

in combination with majoritarianism, this propensity to override law and tradition with spontaneous individual judgment -- be it delusional right-to-lifers or congress itself -- is an insidious erosive force that undermines the crumbling facade of not only the rule of law but civility in our society. and i see little that can be done to turn the tide now.

Tuesday, March 22, 2005



a new blog has been getting a lot of attention (here and here and here) for its swiftian wit. and there is that -- but there is also... a dissembled fatalism, a negativity and futility so thoroughgoing that reads almost false.

karfan may speak truth about syria. but if he speaks as syrians think, nothing will change in syria. there is no energy in wit -- cynicism is a form of acceptance.


schiavo and religion

i've not heard the schindlers -- terri schiavo's parents, who fight so desperately to keep their daughter animate if not alive -- make any appeal to religious faith. and yet, clearly, they are delusional in their denial of the truth of their daughter's state of living death. what we are seeing from them is, i think, a profound sense of guilt (deserved or not, for it is natural to feel guilt even in a complete lack of culpability) manifesting itself in a perverse and sickly way. the schindlers are behaving extremely selfishly -- as any good postmodern westerner must, it seems -- and need psychiatric counseling very badly to come to grips with their daughter's death and the role they did (and did not) play in it.

i am not a great catholic, but the bible addresses this. david kills uriah to steal his wife bathsheba; he has sinned. god, in retribution, strikes ill the son david fathered of bathsheba. while the son is ill, david fasts and repents. but when he is dead, david washes, prays and eats.

He answered, "While the child was still alive, I fasted and wept. I thought, 'Who knows? The LORD may be gracious to me and let the child live.' But now that he is dead, why should I fast? Can I bring him back again? I will go to him, but he will not return to me."
david then returns to bathsheba's bed and fathers solomon, the most beloved of god's kings.

there is a profound moral lesson in david's actions and both the punishment and blessing of god in this allegory. the schindlers, despite their feelings of guilt and responsibility for what has become of their child, can go on and live a good and loving and blessed life. she is dead, and they are not stained forever for it.

the support that stands behind them now from zealous right-to-lifers seems based partly on a fraud perpetrated upon them indicating some whisper of consciousness (which is apparently not manifest, according to a series of state-appointed medical opinions) or possibility of recovery (which is probably significantly less than 3 in 100,000).

but it's also partly based on a bizarre conception of "life" -- one that i am at pains to point out has no foundation in christian philosophy that i can see. my faith of heritage (and schiavo's) places importance on consciousness and consent, powers that schiavo does not have and holds no hope, after ten years in this state, of recovering. schiavo is not even non sui compos, as an infant. she is effectively without a brain, by the judgment of unbiased medical opinion. is she qualitatively different from an anencephalic newborn? can she have a soul?

i am not eager to see schiavo die, even if it was not her wish to continue on as this. i embrace the idea of a gospel of life as a moral and ethical paradigm. leaving to the individual the choice of their own manner of death is a moral concept i remain suspicious of because it is so easily abused and malpracticed by fallible humans against the individual will and the common good both. even if one accepts the morality of the "right to die", schiavo has -- devastatingly -- left no written testament to her intention. (in a society so narcissistic and legalistic as ours, get a living will not for your sake but your relatives'.) what can be said of what she wanted or what she believed? and who can say that it or any opinion should matter for so long as she can breathe?

but it must be said that terri schiavo has not been a person for some years now -- that death, in a way in which any conscious person would understand it, came to her then. her death is not a future certainty, but a past event. and the realization of that truth is not symptomatic of a weakness in our morality but a sign of strength, of confidence in moral law and the existence of our reality as persons.

I like your angle. The tragedy of this whole thing is that the parents have allowed politicians and media to high jack this situation. When I see Sean Hannity out in front of the hospital on Fox News it really makes you wonder how low can we go in this society.

I understand the husband and the parents position in this tragic case. Florida law reads that the husband has the right to make this decision. Yet in defense of the parents, what loving parent would ever want to see a child die before themselves.

I agree with the Florida law. As an adult I have not discussed with my parents many of my beliefs and wishes in a case of such a tragedy. It is not natural to discuss your own death with your parents. I have done so with my spouse.

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schiavo and congress

the spinning obsession of the moment in american society is the awful lingering death of terri schiavo. the details of the case can be had anywhere on the web, but yesterday i see that the federal government involved itself -- again, using majoritarianism as justification to usurp the authority of the courts as legal and moral arbiters -- to pass what amounts to an unconstitutional bill of attainder.

as a rational observer, i think one can no longer say, in light of this illegal act and so many before it, that the american government is constitutional. it operates now in naked and belligerent contempt of even basic constitutional concepts like bill of attainder and habeas corpus. american government operates now on political expediency alone. and in a decaying democracy, what is expedient is what is majoritarian -- whatever gets you the votes of the mob at election time is what will be done (or said to be done), regardless of how stupid or harmful, regardless of whose lawful rights are voided.

the tyranny of dying democracy is working against us. the schiavo family is its current victim.

If the government can interfere on a matter as personal as this there is no limit to what they can do. Ask yourself what freedoms they will take next...

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Friday, March 18, 2005


the return of divine right

when i ascertained justice antonin scalia's tendency to majoritarianism the other day, i said:

the neoconservative religious belief in the rousseauian concept of ultimate moral authority in populism -- the will of the people being a universal good -- makes little allowance for the rights of the minority where such obstacles contradict the expressed will of the majority.
when i said "religious", i didn't mean literally (as in christian) but figuratively (as in faithful, ideal, non-empirical). little did i know. don herzog and brad delong paste scalia for his clearly unconstitutional musings on the basis of power, as he addresses the controversy of displaying the ten commandments on public property in oral arguments from the bench.

JUSTICE SCALIA: And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes — derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds.
in other words, the united states government is founded on divine right. i had thought that justification went out of fashion in 1651 with thomas hobbes. apparently, it's making a comeback in postmodern reactionary america.

scalia is a devoted catholic, it's true, and he has the right to his beliefs as do i. but what in god's own name is that belief doing in the transcripts of the supreme court of a land that was founded on the principle that power ascends from the people?

By extension, I think...

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mr. magoo

it's a cute description of wolfowitz, as the blithe malevolent, but michael lind is appallingly accurate in using it.

Critics are wrong to portray Wolfowitz as a malevolent genius. In fact, he's friendly, soft-spoken, well meaning and thoughtful. He would be the model of a scholar and a statesman but for one fact: He is completely inept. His three-decade career in U.S. foreign policy can be summed up by the term that President Bush coined to describe the war in Iraq that Wolfowitz promoted and helped to oversee: a "catastrophic success."

Even the greatest statesman makes some mistakes. But Wolfowitz is perfectly incompetent. He is the Mozart of ineptitude, the Einstein of incapacity. To be sure, he has his virtues, the foremost of which is consistency. He has been consistently wrong about foreign policy for 30 years.
such is the hazard of being wedded to an abstracted ideology, and therefore divorced -- even contemptuous -- of anything that could be called reality.

and it may very well be why wolfowitz has been moved out. as much a tragedy for the world bank and its credibility as it is, as much as developing countries may now be made to suffer for this man's proselytizing blindness, as nervous and irritated as it makes all the rest of the world -- is it not better to have him far from the pentagon and the armies he has so stupidly abused?


our failing democracies

via reason, wapo's consideration on the slow decay and slide into violence in afghanistan. even in this tribal land, where war and chaos and the law of the gun have ruled for so long, there is concern for the new dangerousness of the place -- and a growing sentimentality for the piety and safety of the taliban:

There is much about Kandahar that underscores how far it has progressed since the Taliban's ouster. Bazaars are filled with merchandise, from photos to VCRs, that would have been unthinkable during the Taliban era. Picking through the wares are scores of women -- most of them veiled because of tribal custom, but far more numerous than they would have been in the days when the Taliban morals police prowled markets with leather whips.

Above the streets, satellite dishes peek out from rooftops. At the soccer stadium where the Taliban once staged public stonings of alleged adulterers, painters prepare the grounds for a youth tournament.

Still, residents say, the outward trappings mask entrenched problems, from lack of jobs to street crime. Many said they personally knew someone whose motorbike, car or other property had been stolen, often at gunpoint. Zahir Jan, 35, a stadium painter, said he longed to find a better job but would be satisfied with the government if it weren't for the kidnappings.

"Imagine how things are, that we are wishing for the Taliban again," he muttered.
this sort of situation all but begs for the imposition of a strong authority -- and the likely sources of such authority in a tribal land like afghanistan are regional warlords. karzai and the americans who prop him up have worked hard to minimize for themselves the risk of alternatives to the federal regime they are attempting to install. but if they cannot provide basic security, one is hard pressed to imagine how afghanis can desire anything but a reempowerment of local strongmen.

someone tell the dreamy americans: freedom isn't everything. without the security to exercize it, freedom means nothing. even the mere threat of lawlessness and instability and corruption can lead to the polarization and radicalism and panic that destroys pluralism. this is why most democracies fail, and it is why democracy is failing in afghanistan and iraq -- not to mention, albeit more slowly, in the west.

Thursday, March 17, 2005


the perversity of eugene volokh

eugene volokh is a pervert. one can only wonder how many savages among us agree with him.

this is why the pope is relevant when he derides the culture of death. many people really actually do need to be told that gratuitous violence is bad -- bad because it resolves nothing for the aggrieved, bad because it corrupts the virtue of the persecutor. nothing is accomplished, and what could be good and just is perverted into becoming no better than what it had beheld.

it takes an especially weak mind to believe that such a gross indulgence of animal violence can be good for anything that is civilized. such weakness for indulgence -- endemic now in the west -- must be fought on all fronts if the decay of civilization is to be counteracted.


looking for a new club

josh landis at syria comment notes that, with syria withdrawing from lebanon, america is now forced to find other pretexts for harassing syria -- and is unlikely to get much european help.

Everyone in Washington is now cooking up next-steps and other instruments to finish off president Bashar al-Asad. Those who want to continue the campaign against dictatorship, Baathism, the enemies of Israel, Arabism, or the "unfree" will now have to begin to address the question of regime-change and internal Syrian politics directly, something Washington has not done up to this point. They will have to convince President Bush and his policy people that it is in US interests to attack Bashar, not for his foreign policy, for occupying Lebanon, or for troublemaking in the region, but because he treats his people "egregiously" in the words of some Washington wonks.

To see how this shift is already taking place look at the recent publications of the WASHINGTON INSTITUTE for Near East Policy. It is perhaps the most influential Middle East think tank in Washington:

Start talking about democracy, human rights, and the rule of law inside Syria. Once the Syrians depart Lebanon, Washington should turn the spotlight on Syria’s egregious behavior toward its own citizens. Since the United States is championing the concept of “choice” in promoting multi-candidate elections in Egypt and Saudi Arabia, a good place to start might be the Syrian constitution, which vests the Arab Baath Socialist Party with sole control of the country’s political leadership. Bashar’s first seven-year term expires in 2007 and it is not too early to start a campaign to pry open that political system.
while american sanctions are being forwarded as one avenue to extort regime change, i would also not be entirely surprised to see similar machinations to we've seen recently arise in syria -- but i'm unsure that such an effort would be any more successful than it was in venezuela. syria has tight control of local media and would probably not hesitate to counter protests in damascus with a security clampdown if there was a perceived threat. though there is certainly a dialogue ongoing within syria and landis, among others, believes that change must come, the preconditions for the kind of non-violent revolt that came off in ukraine seem not to be in place.

if these are insufficient, however, military means are virtually certain, imo. folks in damascus are fatalistic and are probably right to be. until the bush administration does something to convince me (more than fostering vague hope) that they aren't following the plan, i'm inclined to think that idealism will continue to trump any reality or sensibility.


propaganda: defiance

via kos, the washington post takes a stand against the insidious use of tax funds for policy propaganda to the tune of $254 million -- yet more egregiously, in tactless defiance of general accounting office, which has deemed them "covert propaganda".

It's humiliating that local news stations, however short-staffed and desperate for footage, would allow themselves to be used this way. Indeed, as the New York Times reported Sunday, some have even lopped off government attribution when it was included or pretended the government reporter was one of their own. Even so, it's disingenuous for administration officials to blame the stations, given that many releases are crafted precisely to disguise their government origin.

This technique is both illegal and unwise. As a legal matter, the prepackaged news releases run afoul of the prohibition on the use of government funds for domestic "propaganda." The administration's interpretation -- it's okay to hide the source as long as the spot is "purely informational" -- is untenable: Highlighting some "facts" and leaving out others can be even more persuasive than outright advocacy, which is why the administration chose this device. More important, this kind of propaganda masquerading as news is a deceitful way for a democratic government to do business; fake journalists paid by the government to deliver its version of news are as disturbing as real commentators paid by the government to tout its views. White House press secretary Scott McClellan defended the video news releases on Monday as "an informational tool to provide factual information to the American people." Nice sentiment, but why, exactly, wouldn't the administration want to let the people in on one of the most salient facts: who, really, is doing the talking?
it should be apparent to all that news outlets are not non-partisan -- and moreover, that many, such as sinclair broadcasting and fox news, are unabashedly republican. and it certainly affects programming choices, even at the potential expense of shareholders. the local news outlets that have rebroadcast these ploys have often included sinclair-owned television stations, as was reported by the pittsburgh post-gazette regarding a medicare propaganda spot:

In May, the General Accounting Office (GAO) found that fake news segments produced to promote the administration's Medicare law violated federal laws against producing propaganda. The video news releases were distributed to local television sessions to be run as part of the stations' news programs. One of the broadcasters that ran these misleading and illegal advertisements was the Sinclair Broadcasting group, owned by David Sinclair, a major Bush donor.
again, this sort of propaganda is both illegal and unethical, regardless of what the justice department has trumped up. (after all, DoJ claims to have legalized both torture and indefinite detention for the convenience of the white house.)

i'd be the first to acknowledge a liberal bias in many outlets of mainstream media. but that can hardly justify the bush adminstration simply, nakedly and shamelessly breaking the law to propagandize the american public with its own tax revenues. this is the kind of atrocious action that sets the bush white house apart from its predecessors in its manipulative and antagonistic approach to the citizenry -- an approach that is entirely consistent with the mass politics of fascism.



the greatest annual sports spectacular in america has tipped off -- and already a 12 is killing a 5 with twelve minutes gone. how my unadventurous picks suffer will be a matter of public record.

i have zero insight, of course, on any team beyond my beloved alma mater -- and precious little of that. here's hoping for a second weekend.


state of the union

i hate to delve into tinfoilhattery too deeply -- everything i'm about to discuss is really fairly speculative, and i say it knowing that. but there have been a steady stream of reports regarding president bush's deteriorating mental condition going back a year or more.

reports of a "seizure" in april 2004 were subsequently followed by reports of drug therapy for depression following an aborted press conference. in the interim, there have been any number of deconstructions of bush as the untreated alcoholic.

more recently, there have been some observations on the development of nervous tics and pronounced stutters. now some have noted increased incoherence -- complete with cspan video. (see minute 16:30.)

again, there's little here that goes beyond speculation. but important speculation it is. the presidency is a inhumanly demanding job, and bush is after all an untreated substance abuser. is it really unthinkable that the stress and demands of his position could crack him?

of course, history is replete with mad rulers -- from alcibiades to a string of roman emperors to several europeans monarchs to hitler and stalin -- i think they're quite a bit more common than the broader hope would allow. and i don't think anyone is saying that bush has gone mad. but the question has arisen as to his mental state and what treatments he may be under -- and, given the man's past, it is something that simply bears watching.

Wednesday, March 16, 2005


wolfowitz to the world bank

despite prior denials, the new york times is reporting that the bush administration has begun notifying foreign governments that paul wolfowitz will be nominated to head the world bank.

i have to believe this a victory of sorts for realists. coming on the heels of john bolton's appointment to the un (which left the left aghast) and douglas feith's recent departure, we can now see a pattern developing in bush's second term in which the neoconservatives are being distanced from the white house.

a housecleaning -- perhaps even that forbidden word, accountability, for the embarrassing fraud which the neocons perpetrated in lying the united states into war in iraq, or perhaps fear of wild-eyed neocon brinkmanship with iran.

even as the economist trumpeted the return of good times for the neocons (and neocons in the press sang wolfowitz's praises), the point was made that things are changing:

Look at the staffing of the second Bush administration, and it hardly seems as if the neo-conservatives will exercise unqualified influence. They are no doubt pleased to see the back of two of their leading critics, Colin Powell, the former secretary of state, and Richard Armitage, his deputy. But they are also losing two of their fiercest champions in Washington: Douglas Feith, the under-secretary of defence for policy, and John Bolton. However much they may crow about Mr Bolton's ability to foul the UN nest in Manhattan, they would much rather have had him in the heart of Washington, at the State Department or the Pentagon.

Neo-conservatives are also ambivalent about Condoleezza Rice, the new secretary of state. Her neo-con defenders point out that she is much closer to Mr Bush than Colin Powell ever was, and much keener on using American power abroad. They argue that neo-conservative ends can be achieved by realist means such as diplomacy. But others are not so sure. They note that Ms Rice is a protégé of Brent Scowcroft, one of the leading Republican critics of the war. And they see her filling the State Department with fellow realists, led by Robert Zoellick, her new deputy.

The limits of neo-conservative influence may well be shown by Iran. It is axiomatic in neo-con circles that Iran cannot be prevented from acquiring nuclear weapons by a combination of diplomacy and bribery. But Mr Bush is at pains to point out that the White House is not preparing for war in Iran. And the Pentagon has made it clear that it is already overstretched by Iraq. The days when Richard Perle could sum up American foreign policy with the resonant phrase, "Who's next?" are long gone.
is it too much to hope that wolfowitz's departure means the end of global democratic revolution? perhaps -- and it is still far too soon to see what tack will be taken by the administration. but, while there is a negative point of view, these are good signs, i think, and should be greeted with cautious optimism.


the decline of literacy

via reason -- author robert lasner bemoans the death of first fiction and the woeful state of a publishing industry that refuses to cultivate literary authors. he offers a number of suggestions, but in the end, his conclusion is grim:

However, none of the suggestions I have made will matter it we don't increase the appetite for literary reading in this country. And short of destroying every single television set, I don't know what can be done. Literary reading is becoming a lost art, and according to "Reading at Risk," the greatest decline in literary reading is among the young, which is not a good harbinger of things to come. However, if something is not done, soon, not only first fiction, but all literary fiction, will disappear as a viable part of the publishing world.
an intelligent, literary public takes maintenance. just as we construct (or used to) an educated public by schools not only to have a competent workforce but a workable republic, why should we not further offer to construct a literary public that can interpret the meaning of events in our times by contextualizing them through western literature?

alas, we have largely abandoned such efforts.

people are animals. shiny balls will do for what we want -- 99% of msm is evidence enough of that -- if we are content to live in idiotic savagery. but civility takes social effort; it does not arise spontaneously ex nihilo. to the extent that it may impinge on the individual's prerogative to be a uninhibited drooling tool, so be it. the individual rarely enough seems to understand where his interests lie -- far more rarely still deprived of the social understanding conveyed by literacy.

i don't know that legislation and regulation are an answer -- if they are, they are a brutish one. government imposition is a poor proxy for social will. but the effectiveness of propaganda in convincing the human animal of the truth of artifice has been witnessed time and again (most recently in lebanon and ukraine, imo -- but if you can't admit that, then iraq). changing the dialogue of this country is easy -- but someone has to undertake it.

whether that be publishing houses or msm or what-have-you, i certainly hope it happens. a renaissance is sorely needed, imo.

changing the dialogue of this country is easy -- but someone has to undertake it.

Easy? Are you kidding?

I like your post. I've been thinking about it off and on for days, because I also lament the loss of literacy. I tried to remember where I read some statistics concerning book buying habits of American adults, but I couldn't come through. Sorry. I recall that a small percentage of Americans account for most book purchases. That squares with my personal experience. I meet few readers, but the readers I meet have read many books.

I place some of the blame for the current state of literacy on schools. I attended a terrible school system that is probably close to average for our nation. I pity those unfortunate students in worse schools, because there was not much literacy in evidence in my classes. No significant improvement of America's schools is likely.

And short of destroying every single television set, I don't know what can be done.

I own a television and it is not a problem. I seldom turn it on. However, it is commonly stated that the average American watches 4.5 hours per day. To stare slackjawed at the cathode ray tube every day is the best way to end up mentally out of shape. Parents need to quit using TV as an electronic pacifier, but that is unlikely.

I see no reasonable solution. I just expect to live in a land of illiteracy.

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Tuesday, March 15, 2005


scalia and majoritarianism

antonin scalia's neoconservative position was expressed again yesterday in declaiming the supreme court's decision to strike down juvenile execution.

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.
scalia's position is marked out by his previous assertions on the role of the judiciary, as exemplified in this amicus brief which cites scalia:

Over the last decade, the Court has dramatically revised the law of standing to limit citizens' ability to sue in federal court to enforce federal environmental laws. This transformation has been based on the idea that those asserting a "majoritarian" interest in environmental protection neither require nor are entitled to regular access to the courts, whereas minority regulated interests need and should routinely be granted access to the courts to challenge the application of the environmental laws to them.

The basic rationale for the Court's recent environmental standing decisions is expressed most articulately by Justice Scalia, writing for the Court in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). He explained the distinction between those interests which should be denied standing and those which should be granted standing in terms of whether the plaintiff is the object, or the intended beneficiary, of a law or regulation. Standing, he said, "depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed." Id. at 561-62 (emphasis in original). While the quoted language is from the opinion of the Court, it is uncertain, in view of the separate concurring opinion by Justice Kennedy (joined by Justice Souter), see 504 U.S. at 579-81, whether a majority of the Court actually subscribed to this part of the majority opinion. See also id. at 579 (expressing agreement only with "the essential parts of the Court's analysis").

Justice (then Judge) Scalia developed this theory of the distinction between beneficiaries and objects of regulation in a 1983 article in the Suffolk University Law Review. See The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L.Rev. 881 (1983). Judge Scalia argued that standing doctrine needed to be revised, in his words, to "restrict[ ] courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and [to] exclud[e] them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself." Id. at 894.

Judge Scalia contended that when a claim is brought by an individual who is "the very object of a law's requirement or prohibition," then the plaintiff will "always" have standing. Id. at 894 (emphasis in original). In that circumstance, the claim presents a "classic case of the law bearing down upon the individual himself, and the court will not pause to inquire whether the grievance is a 'generalized' one." Id. On the other hand, using language almost identical to that which appeared in Lujan, when the plaintiff "is complaining of an agency's unlawful failure to impose a requirement or prohibition upon someone else," standing should be much more difficult to establish. Id. at 894 (emphasis in original). A legal challenge based on non-enforcement of the law asserts an essentially majoritarian interest, Judge Scalia reasoned, which should ordinarily be addressed, not by the courts, but by the majoritarian branches - the Congress or the Executive. A plaintiff with a majoritarian interest should be recognized as having standing only if he can demonstrate that non-enforcement of the law resulted in some special and distinctive harm to him. Id. at 894-95.

Over the last decade, the Court's major environmental standing decisions, all of which have been authored by Justice Scalia, have progressively implemented this anti-majoritarian theory of standing.
the obvious answer, of course, to the question, "Why in the world would you have it interpreted by nine lawyers?", is that the people are paranoid idiots and panicky animals who wouldn't hesitate under the proper influence to back laws constructing death camps for muslims or authorize a nuclear first-strike on china. but the neoconservative religious belief in the rousseauian concept of ultimate moral authority in populism -- the will of the people being a universal good -- makes little allowance for the rights of the minority where such obstacles contradict the expressed will of the majority.

this is majoritarianism, or plebiscitarianism, and it is the naked advocacy of mob rule. we've seen it before in the neoconservative views of government and the function of institutions, which apply to both the senate and the supreme court.

as a student of the history of law, scalia is well aware that the constitution designed a government which sought balance between and limits upon both the proletariat and the elite -- that while a government may derive its authority from the people it governs, the expression of the will of the people is to be abrogated by the rule of law and morality. as was expressed by alexander hamilton in the federalist letters,

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
james madison further evidenced healthy skepticism of the intelligence of crowds in another federalist letter:

It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand.

On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed.
madison went to some lengths to differentiate between a republic and a democracy, and the favorability of the former to the latter. but scalia's philosophical advocacy is apparently that the balance should be abandoned for the unmitigated implementation of the will of the lowest common denominator through the vehicles of congress and the administration -- and, for many neoconservatives, primarily the latter -- circumscribing the authority of the courts and the law under the revisionist, primitivist rubric of popular constitutionalism.

scalia, in an somewhat duplicitous effort to forward this ideological agenda, presents a fraudulent notion of what the supreme court is intended to be. the founders understood very well that the court was a powerful political entity and that it existed beyond the reach of the people. that it is is testament to the founders valid caution of plebiscitarianism and the ease with which a rabble can be incited to violate the rights of the minority; it is to be hoped that the court provides a check against the people as insurance against majoritarianism.

unfortunately, scalia apparently expresses no caution regarding the crowd -- and has accordingly attempted to diminish the role of the "undemocratic" courts in public life. when he says "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it," what he leaves unsaid is more important -- for example, "you think restrictions of political speech for unamerican liberals are a good idea? persuade your fellow citizens and enact it" -- implying throughout that the court cannot stand in the way of the will of the people on any but the most limited issues. the idea may sound ridiculous to many; but the history of mankind shows that the crowd, when scared or manipulated, is capable of demanding the most egregious atrocities be committed in the name of the common good. it is this capacity for atrocity that scalia, wittingly or not, implicitly wishes to enable.

but there is, of course, an underlying duplicity of rich irony -- scalia cannot brook the scrutiny of the press, even if it means breaking the law he is sworn to uphold.

Scalia, who has had a prickly relationship with the media, wasted no time in shooing away photographers from the public event five minutes into his speech.

"Could we stop the cameras? I thought I announced ... a couple are fine at first, but click click click click," Scalia said, impatiently waving the photographers off.

During a speech last year in Hattiesburg, Miss., a deputy federal marshal demanded that an Associated Press reporter and another journalist erase recordings of the justice's remarks.

The justice later apologized. The government conceded that the U.S. Marshals Service violated federal law in the confrontation and said the reporters and their employers were each entitled to $1,000 in damages and attorneys' fees.
and why? i suspect because he is convinced on some level that his will is the will of the people -- and that the will of those who examine him and criticize him and disagree with him is therefore the will of the enemies of the people and therefore evil -- even if their views have the benefit of the rule of law. it is precisely this conflation about which hamilton warned,

The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
and in this, of course, he has much in common with another passionate follower of rousseau -- robespierre.

Monday, March 14, 2005


gene sharp

via the arabist, as larger anti-syrian protests take hold in beirut, a very interesting digression on the origin of color-coded revolution from nur al-cubicle outlining the influence of pacifist gene sharp.

The origins of the color-themed revolutions go back to 1999. Following the failure of the US bombing campaign against Serbia, the US and the EU cast about and latched on to new revolutionary strategy : carefully orchestrated, massive street demonstrations inspired by pacifist's Gene Sharp’s From Dictatorship to Democracy: A Conceptual Framework for Liberation.

In advance of the 2000 Serbian elections, the US and the EU put together a large-scale monitoring apparatus comprised of the Organization for Security and Cooperation in Europe and well-funded NGO’s, including Madeleine Albright’s National Democratic Institute, Senator John McCain’s International Republican Institute, George Soros’ Open Society and James Woolsey’s Freedom House not only to guarantee transparency but to launch a popular movement with the appropriate levels of stagecraft, press and public relations.

The avowed goal of forcing the government to acknowledge election results masks, according to LMD, a theme hammered by Washington--régime change. The neutral monitoring effort is a vehicle for the intervention of foreign powers in a non-violent revolution.
the upshot is that the color-coded revolutions are exercizes in western propaganda directed by western ngo's at western audiences which, while taking advantage of genuine local discontent and boredom, represent not any popular will or spontaneous massing but the efforts of western government at nonviolent regime change.

just in case you thought the limits of administration propaganda were fake newscasts and jeff gannon.



this article regarding a ridiculous and frivolous lawsuit -- which immediately reminded me of the invaluable blog overlawyered -- and set me to considering the history of litigation and how periods of hyperlitigation reflect the society that creates such lawsuits as this. of course, one ridiculous suit does not a plague make. but, whether the matter is simply one of tort reform to discourage such suits or a need of better legislation to more sharply articulate the nefarious "gray areas" in which contingency-fee-seeking occurs, there can be little doubt that the united states is in the midst of a lawsuit mania when class action filings have expanded by more than 1000% over the last decade or so, and tort costs have jumped to 2.2% of gdp.

it seems we are far from the first society to be so enthralled. china under the 17th c qing dynasty saw the rise of the songshi, the "litigation master", who was blamed for a massive litigation backlog that overwhelmed the system of adjudication and worked to undermine the classical and confucian principles of harmonious social behavior. (the songshi were ultimately proscribed in the 18th and 19th c.) the elizabethan pettifogger is another derisory example from an age that saw itself awash in trivial litigation.

what social current is hyperlitigation a symptom of? i find the example cited by macauley insightful:

To be a master of litigation, after all, was to be a master of an activity disdained in classical and official literature from antiquity to the People's Republic. In dictionaries of the second century A.D., song (litigation) was defined as zheng: to contend, struggle, dispute, argue, quarrel. In the Song chapter of the Yiing (I Ching, or Classic of transformations), one of the five ancient classics, litigation or disputation was to be avoided "even when one is in the right." The classic advised that "one cannot engage in conflict / One turns his back and submits to fate, / Changes one's attitude / And finds peace in perseverance."

The harmony-inducing nature of the Chinese classical tradition is one of its most identifiable features. And the lessons of the classics reverberated across the centuries. We see it in the sixteenth-century Confucian fundamentalist Hai Rui's invocation of the
Book of Changes to explain how negotiations over contracts should be governed by "friendliness". We see it in a Jiangian censor's invocation of Confucius's famous statement against litigation when he complained in 1745 about civil cases going unresolved for two to three years, thus exacerbating backlogs at both the local and appellate level. Whether we consider the sentiments of a fairly eccentric Confucian fundamentalist like Hai Rui or those of a typically overburdened official of the eighteenth century, there is no doubt that their ideological commitment to harmony and to abjuring disputation was informed in part by extensive study of classical literature.

The classical tradition throughout the centuries has stressed the importance of social harmony, repressing "selfish" desires, and avoiding unnecessary lawsuits. Classically inspired official opinion was indisputably hostile to the notion of
song. Therefore, for a late imperial official to refer to someone as a "master of song," of litigation, was certainly no compliment. Songshi, litigation master, depending on context, can be translated from official sources in the same perjorative sense as songgun, litigation hooligan.
here we see clearly the influence of individualism articulated as working against the structure of social conformity and peace for the sake of peace. such submission to social order is the antithesis of the postmodern nietzschean life of emancipation from any unwanted stricture, of course -- and in this way we can see how the growth of tort abuse is, in a fundamental way, enabled by the arrogance and self-righteousness that characterize the individualist outlook on life. the inability to suffer even minor slights to pride is a common character flaw in postmodern society. (ask anyone who works in customer service.)

what can be done to reverse this philosophical abandonment of society and humility? i certainly don't know, and don't truly believe there is a method short of civilizational crisis and decline. my point isn't to try to "fix" the unresolvable, but simply to observe the state of things as they are.
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