Saintly Pragmatism

Several recent reflections on the “long walk” of Nelson Mandela have quoted him on leaving anger behind so as not to give his jailers the victory: for example, “resentment is like drinking poison and then hoping it will kill your enemies.” A twist on this came from former Gates Foundation chief executive Patty Stonesifer, who was recently quoted in the NYT recalling Mandela’s response to being asked why he was not more angry. “If I thought it would be useful I would be.”

Notorious R.B.G. And the Smooth Criminal

Ruth Bader Ginsburg may have other sites or pages in her honor, but the Notorious R.B.G. Tumblr Is excellent. On the other hand, if you reach the Chief Justice on his cell, I could swear you get a “Smooth Criminal” ringtone. Moral authority is where you find it.

Update: Building on Justice Roberts’ pronouncement of a doctrine of equal state sovereignty, Nevada has announced that it will, beginning tomorrow, distribute 2 per cent of the Yucca Mountain nuclear waste to each of the other 49 states. Maine’s portion, rumor has it, will be delivered on July 4 to the backyard of the Roberts’ summer home on Hupper Island–kind of a separate but equal, and privatized, barbecue accessory.

Rick Perry Loses Lifelong Battle With Entropy

As Alfred North Whitehead put it in 1925, it requires a very unusual mind to undertake the analysis of the obvious. This blog post ought thus be brief, because Rick Perry has done the heavy lifting himself by implying that no one who was not aborted and is thus alive could possibly have a basis to oppose criminal penalties for abortion. If God is speaking through Rick Perry, it must be acknowledged (as Roland Barthes wrote after witnessing what he called a platitudinous and tautological performance by Billy Graham) that God is quite stupid.

Norbert Wiener, author of the pioneering work Cybernetics, wrote in his 1954 preface to The Human Use of Human Beings that “as entropy increases, the universe, and all closed systems in the universe, tend naturally to deteriorate…to move from the least probable to the most probable state…to a state of chaos and sameness….But while the universe as a whole, if indeed there is a whole universe, tends to run down, there are local enclaves…in which there is a limited and temporary tendency for organization to increase. Life finds its home in some of these enclaves.”

Wendy Davis inspired millions this week by temporarily, at least, reversing the current tendencies of Texas and its governor. Is there a recalibration going on of the meanings of chaos, sameness, otherness, freedom, choice, and equality? In Turkey, Brazil, Texas? And where next?

False Equivalence on Equality

Some commentators have followed a familiar path of least resistance in interpreting the major Supreme Court rulings of yesterday and today. David Leonhardt of the NYT, for example, achieves superficial false-equivalence-correctness by tweeting: “Dems yesterday: The court should not overturn a bipartisan law. Repubs today: The court should not overturn a bipartisan law.” Leave aside the happiness I imagine plenty of Republicans (Ted Olson, for starters) feel today. The Court has the power of judicial review, but ought to use it wisely, to resolve actual cases and controversies on the basis of upholding the Constitution, especially its guarantee of equal protection of the laws regardless of majority opinion. The Voting Rights Act has been a powerful, landmark law to redress very real grievances and overcome horrible centuries-old injustices. It is obtuse and childish to equate it with the so-called Defense of Marriage Act, which had no such noble purpose in 1996–you can watch John Lewis’s anti-DOMA speech from 1996 on YouTube demolishing it on civil rights grounds–and looks utterly ridiculous now to most young Americans. Perhaps the Voting Rights Act could use tweaking and updating, but Chief Justice Roberts was way out of his depth in dismissing the legislative renewal of 2006 as senseless. And no one paying attention could equate Justice Ginsburg’s pointed, forceful yet civil dissent with Justice Scalia’s ugly and abusive trolling.

There may well be equivalence among politicians, bureaucrats, and, yes, all of us in that we seek either reelection or reconfirmation of our existing opinions. The gay marriage decisions today will, as time goes on, appeal to a wide majority of Americans because they affirm core parts of our self-image and self-understanding: Justice Kennedy affirmed the “equal dignity of same-sex marriages,” though without, yet, invalidating the indignity nationwide. To use a Civil War term, he was not ready yet to make “freedom national.” But the rapid momentum toward legal, civil equal treatment is clear, and the main lines of the decision are relatively clear and clean. Not so with the impatient, tortured, Panglossian lameness of Justice Roberts’ majority ruling gutting the Voting Rights Act. Benjamin Franklin, archetypal American for many, termed his youthful sins mere “errata.” We might like to take up Justice Roberts’ invitation to reduce our historical stains to errata. Our real history, though, contains some awful messes. If we pretend otherwise, do we really make it easier to clean up and move beyond the messes?

The reflexive pox on both your houses mindset is an easy default position–but in this case very hard to defend with detailed and informed historical or moral arguments.

Justice Roberts Guilty of Disorderly Conduct

The first draft, so to speak, of the opinion that “immobilized” (footnote 1 of Justice Ginsburg‘s dissent) section 5 of the Voting Rights Act came from Edward Blum of the so-called Project for Fair Representation, who celebrated the “return of constitutional order” today. Justice Roberts took his cue from Blum, stressing over and over the “equal sovereignty” of the states and the extraordinary deviance from that supposed Constitutional norm required by the VRA. Roberts did not hide his contempt for the 2006 reauthorization for an utterly unacceptable 25 more years–when it had so clearly been overdue for destruction by Roberts’ sophomore or junior year in college circa 1974. No matter that those reauthorizers included the President who nominated him, George W. Bush, as well as every single Senator who voted to confirm him (or not to confirm him–the VRA passed 98-0). Gutless fools, every one of them! The 2006 extension, wrote Roberts today, was based “on 40-year old facts having no logical relation to the present day.” Never mind the thousands of pages of testimony and documentation Congress considered, or Shelby County’s actual history of discrimination, which made it not only ineligible for the time being to bail out of the preclearance requirement but should have made it ineligible to bring a “facial challenge” to the VRA at all. Not to mention the numerous recent examples of clear racial discrimination Ginsburg cites against the majority’s willful amnesia. In Roberts’ remarkably bland and potted history of voting in the United States, he acknowledges (quoting from an earlier Court opinion) that the first century of “Congressional enforcement (of the 15th Amendment) can only be regarded as a failure,” but glosses over the nitty-gritty of racial subjugation and terrorism to hurry on to his main theme: the time for Second Reconstruction is up, now we move on the glorious new constitutional order, in which Texas and Mississippi and other states have already–yes, today–moved to do whatever the hell they feel like doing. An opinion, in sum, that is legally disorderly; and morally empty and blind.

Justice Ginsburg reads her Constitution and her history differently. Roberts picked at her arguments repeatedly, perhaps rattled at the prospect that her arguments might find 5 or more votes while he still sits on the Court, but he barely began to come to terms with the implications of her dissent. Ginsburg proclaimed doom and judgment on today’s majority: “the sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective” (36). The underlying reason for that failure, I would say, is the majority’s inappropriate sense of time scale. Their fantasy of a lost constitutional order restored puts some judicial issues in a more helpful perspective some of the time, but the United States Constitution, with us since 1787 or so, has provided a just, orderly framework for, say, blacks in Alabama for what percentage of the 226 years so far? Whose inconvenience and unaccommodation has really been more disorderly over the last 226 years? We should go back at least another 170 years though, should we not? Are you starting to feel like a man in unseemly and disorderly haste, Mr. Chief Justice?

Unconfirmed Report: Paula Deen Hired to Clerk for Chief Justice Roberts

This is an unconfirmed report. Paula Deen, after listening from a VIP seat in the Supreme Court to Chief Justice Roberts read his opinion today in the Shelby case, applied and was immediately accepted for a job clerking for the Chief Justice next term. It was and was not so that she also renounced her earlier apologies and rebooked plantation style wedding plans for her brother.
Hat tip to tomorrow’s issue of the Onion.

Amazing Learning Styles of Plants and Feral Hogs

And not just any feral hogs, but special rent-seeking feral hogs. In a Wall Street Journal story yesterday headlined “Feral Hogs Slow to Learn,” Dallas Federal Reserve Bank president Richard Fisher described the “big money” response to the Fed‘s indication that they plan to reduce bond buying in the fairly near future: “I do believe that big money organizes itself somewhat like feral hogs. If they detect a weakness or a bad scent, they will go after it.” In separate statements, New York and Minneapolis Fed Bank presidents acknowledged that their climates had not yet warmed enough to accommodate feral hogs.

And in related news from the BBC, “plants do ‘maths’ to control overnight food supplies.” According to researchers in Norwich England, to adjust their overnight starch consumption precisely, Arabidopsis plants “must be performing a mathematical calculation–arithmetic division.” Disappointingly, the BBC quoted Dr. Richard Buggs of Queen Mary, University of London as saying that “this is not evidence for plant intelligence…. Plants don’t do maths voluntarily and with a purpose in mind like we do.”

We like the feral hogs? Or we like the purposeful beings calculating how much beer starch we will require to get through three episodes of Downton Abbey or True Blood?

McClatchy Story on “Insider Threat” Program

The Insider Threat story published by McClatchy this week might be be more disturbing than any of the Guardian/Washington Post/Snowden stories. Check out mcclatchydc.com for the full Stepford/Stasi details. If Edward Snowden were spotted driving around McLean, Virginia in a white Bronco I would be no more shocked and speechless.

Update 6/24. Vice President Joseph Biden has turned himself over to the good people at Liberty Crossing because he had impure thoughts while watching John Oliver yesterday.

Desperately Seeking Rents

What, you may ask, is so awful about seeking rents? Paul Krugman‘s NYT column Friday on “Profits Without Production” looked at the problem of “monopoly rents” in the 21st-century American economy. He defines the term as “profits that don’t represent returns on investment, but instead reflect the value of market dominance,” and cites Apple as a prime example. He seems to be just warming up to his topic, promising future columns on what the “widening disconnect between profits and production” means for policy.

I was thinking about rent seeking in a distinct but related sense earlier this week as I read about the defeat of the farm bill in the House of Representatives as well as the market drop following the Fed plan to taper off its “QE3” bond-buying program.  What these two stories had in common was rent seeking and the pain of anticipated withdrawal therefrom. The phrase “rent seeking” was coined by economist Anne Krueger in a 1974 journal article focused largely on the heavily regulated economies of India and Turkey. She acknowledged that rent-seeking behaviors include bribery and corruption, but emphasized the “cleaner” types of rent seeking, such as competing for import licenses, which nevertheless result in deadweight losses to the economy as a whole. Gordon Tullock had the notion of rent seeking a few years earlier without the phrase itself, but he, James Buchanan and other economists, primarily on the libertarian side, have run with both the concept and the phrase for forty years now.

“Economic rent” has a different meaning than ordinary monthly rent on a home. It refers to any kind of unearned income, in the sense of excess returns above what would occur in a competitive market. Rent-seeking behavior, in short, is lobbying for a bigger slice of pie without doing anything to enlarge the pie. A modern economics term for an ancient set of practices. This sounds like something the right wing has accused liberals and bureaucrats of doing–and it is–but I would say the phenomenon of rent seeking crosses all ideological and economic class lines.

Last year’s election turned in large part, I think, on accusations involving rent seeking. Barack Obama’s “you didn’t build that” comment was doubtless distorted and edited somewhat by Republicans, but in full context it was still at best unwise and at worst offensive. Sensible business owners are not unaware that they count on government to maintain roads and highways, maintain public order, and so on–but it may well have seemed to people who knew they had worked hard over years or decades that Obama was gratuitously accusing them of rent-seeking behavior. Mitt Romney certainly suffered from the leak of his comment at a fundraiser that “there are 47 percent of the people who are with (President Obama), who are dependent upon government, who believe that they are victims…These are people who pay no income tax… (My) job is not to worry about those people.”

As citizens our job is no longer to worry about Mitt Romney, or assess his own rent-seeking offenses. But to worry or be indignant about rent seeking does appear to be our frequent occupation. Once you start to look for it, rent seeking is all over the place (often with its evil cousins regulatory capture and moral hazard). Vilfredo Pareto (as in “Pareto optimality“) wrote in 1905 that human efforts “are utilized in two different ways: they are directed to the production or transformation of economic goods, or else to the appropriation of goods produced by others.” And in the mid-19th century John Stuart Mill wrote that it “is lamentable to think how a great proportion of all efforts and talents in the world are employed in merely neutralizing one another” (hat tip to Samuel Bowles, Microeconomics: Behavior, Institutions, and Evolution, ch. 5). And speaking of surveillance, at least the second most offensive thing about the stream of news about it, to me, is the suspicion that the private contractors and the government agencies such as NSA are feathering their nests as much as or more than focusing on probable threats–that “privatization” of the security apparatus is a rentier’s dream and our troublesome task to disentangle.

You Can’t Hurry Happy Forgetting

This year’s gambit by the so-called conservatives on the Supreme Court to invalidate the Voting Rights Act may or may not succeed. If it does it will make a sorry mess for several reasons. The argument that states must be treated equally based on Article IV of the Constitution and the Tenth Amendment is ignorant, trifling, and unhistorical. States are guaranteed proportional representation in the House, equal representation in the Senate, and protection against foreign invasion. The Tenth Amendment is not revoked by the post-Civil War Amendments outlawing slavery; guaranteeing due process, equal protection of the laws, and the privileges and immunities of citizenship to all Americans; and guaranteeing the right to vote (though not yet to women)–but it is qualified and placed in a new light. The Thirteenth, Fourteenth, and Fifteenth Amendments all explicitly gave Congress “power to enforce…by appropriate legislation.” If that did not relativize the Tenth Amendment what would? Moreover the reentry of states that had seceded back into the United States was contingent on acceptance of the Reconstruction Amendments. It took another one hundred years after the abolition of slavery until the Voting Rights Act of 1965 was signed by President Lyndon Johnson. This law finally “shifted the advantage of time and inertia from the perpetrators of the evil to the victims,” as Chief Justice Earl Warren wrote in his 1966 Katzenbach opinion upholding the Voting Rights Act as a valid exercise of Congressional power to enforce the Fifteenth Amendment.

Section Five of the Voting Rights Act does not treat all states equally, which because of the history involved is not necessarily the same as inequitably. It constrains several Southern states, as well as Alaska, Arizona, the Bronx, Brooklyn, and Manhattan. Several towns in New Hampshire were recently allowed to “bail out” of the Section 5 “preclearance” portion of the law. Those towns had imposed poll tax requirements in the past. But the core impact of the Voting Rights Act was and is in the former Confederate states, where some have complained, sometimes accurately, that “we have repented, and we have reformed.”

Lincoln said in his second inaugural address that all knew that slavery “was, somehow, the cause of the war.” We all know that the issue now is whether the un-conservatives on the Court decide, against the near-unanimous voice of both houses of Congress, expressed repeatedly since 1965, that it is time for “happy forgetting.” Harald Weinrich, in his remarkable work Lethe:The Art and Critique of Forgetting, follows Freud in distinguishing between “unpacified forgetting” and “pacified forgetting.” For Weinrich the path from unpacified forgetting to a post-therapeutic pacified forgetting relies on the art of memory as a necessary auxiliary in the process of working through (pp. 132-36). And Paul Ricoeur, in his Memory, History, Forgetting, writes of an ars oblivionis, a happy forgetting, that could become a double of ars memoriae, happy memory (p. 412). But Ricoeur is “troubled by an excess of memory here, and an excess of forgetting elsewhere, to say nothing of …abuses of memory–and of forgetting” (p. xv).

Is this Supreme Court really best for the task, or up to the task at all, of judging “the just allotment of memory” (Ricoeur, ibid.) in this case? It is more than just another case. It might be best if they were a little less eager and sure of themselves here. When John Roberts informs us that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” he demonstrates an admirable grasp of tautological logic but probably an unsure sense of the complex history involved. Antonin Scalia, remarking on the lopsided vote to reauthorize for 25 years in 2006, said at the oral argument that the near-unanimity was evidence that this “is not a matter that can be left to Congress”! Is the bottom line here that the Court is going to invalidate the law that, warts and all, finally gave Americans of all races effective and real suffrage–on the ground of peevishness? Because Congress failed to jump after the Northwest Austin decision less than five years ago? They could just come right out and say: section 2 is good enough for you people, don’t even think that you deserve the advantage of time and inertia anymore.

Bartleby the Scrivener Loses in 5-4 Ruling

We have it on reliable authority that in a secret corollary to yesterday’s 5-4 Salinas v. Texas case, in which the Fifth Amendment was overruled, the Court also ruled, again 5-4, against Bartleby the Scrivener, on the grounds that at no time did Bartleby explicitly assert his right against self-incrimination. In yet another bizarre concurrence, following up on his recent plea that someone, anyone, help him learn molecular biology (that’s what MOOCs are for), Justice Antonin Scalia berated Bartleby for saying “I would prefer not to” just “one time too many” and ordered him back to the Tombs.

And in another sign of shifting plates inside the Beltway, bloggers @ both Cato@Liberty and Democracy Now agreed that Bartleby was done wrong. Bartleby himself, as has been the case since 1853, was unavailable for comment.

Update via Taksim Square: according to the Guardian, a “latterday Bartleby” has surfaced in Istanbul and been emulated by hundreds of “standing men” (and women) in other Turkish cities. The deputy prime minister of Turkey reportedly called this silent protest “pleasing to the eye”! (June 20)

Cross-cutting Concerns for the Official Story

Can you tell–I could not if I had not seen them in news stories–who said “Our leaders, even the worst of them, are not totalitarian. But our technology is totalitarian.”?  And this: “the essential apparatus of a police state is already in place”?  Could have been Rand Paul or Amy Goodman or Glenn Beck or Noam Chomsky, I suppose. But those were Peggy Noonan and Al Gore, venerable insider interpreters of Republican and Democratic talking points, who disagree on a lot but are putting out a very similar message here. The purveyors of the security state’s official story are pushing familiar buttons–the leaker is an unstable egotistical traitor; and without our programs you are all going to be killed–but there is pushback from too many sides–possibly most significantly EU countries–to squelch or marginalize easily, I believe.  President Obama may truly be interested in a debate, but the surveillance state does all it can to keep all critique way out on the fringes.  Now it is off-balance, as are both political parties, amid signs of the usual ideological synchronization, data validation, monitoring, and memory management breaking down (applying computer science “crosscutting concerns” loosely here to the current political situation).  This is an opportunity for debate outside the usual terms of reference.

The Ripe, the Moot, and the Ugly: Least Dangerous Branch Week(s) Coming Up

In Federalist Paper 78 Alexander Hamilton gave reasons why the judiciary would be the “least dangerous (branch of government to) the political rights (prescribed by) the Constitution”: the executive “dispenses the honors” and “holds the sword of the community”; the legislature “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated; the judiciary in the end has only the power of judgment, and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But by the 1830s de Tocqueville would write that “armed with the power of declaring laws unconstitutional, the American magistrate perpetually interferes in political affairs. . . . Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” (book I, chapter 16). Alexander Bickel, in his landmark book The Least Dangerous Branch, written in the aftermath of the 1954 Brown v. Board of Education school desegregation decision, defended judicial review, used judiciously! Both Samuel Alito and John Roberts have pointed to Bickel as a formative influence. But Bickel died the year Richard Nixon resigned, so he cannot tell us whether those justices are coping with the “countermajoritarian difficulty” and practicing the “passive virtues” in a Bickel-worthy statesmanlike way (could the three women be more Bickelian?).

Will this year’s most deeply-contested decisions be viewed as judicious in the future? Linda Greenhouse, who covered the Court for decades, is apprehensive. Her recent Opinionator column in the NYT called out the conservative faction for being just that, a faction in a hurry (she does not mention Bickel’s theme of passive virtues–see the August 2012 Scotusblog online symposium for that theme and many others, with much historical context on mootness and ripeness in the Warren Court era). Her particular warrants, so to speak, are that a 2003 affirmative action ruling could and should have been left to settle and rest for 25 years, and that the conservatives are grabbing too quickly for “the next potential vehicle for shutting down affirmative action.” Why? Out of fear that their five-four majority could slip away any day now. Greenhouse does not address the impending voting rights decision, but there is plenty of cause for concern that the near-unanimous 2006 Congressional renewal–until 2031–of the Voting Rights Act will be subjected to ill-advised countermajoritarian scrutiny.
The same-sex marriage issue is unlikely, I think, to get a clear resolution this year, though the justices ought to realize that the issue is somewhere between moot and absurd for most youthful Americans.

Is the Court going to issue unripe and/or soon-to-be-moot rulings? That may be the ugly reality, though I hope for surprises.

“The Gospel is Not the Ancien Regime”

Pope Francis was in the news again yesterday, but the coverage was almost entirely about his acknowledgment of a “gay lobby” inside the Vatican. That story is less about sexual preference per se, more about power–or, as the NYT story rightly noted, “blackmailability,” and the Pope’s wise-as-serpent-innocent-as-dove way of managing to “cut the issue down to size, ” in the words of Alberto Melloni of the John XXIII Foundation in Bologna. By making a fairly bland-sounding acknowledgment of the obvious, Francis has signaled that other issues–such as unjust human suffering–are really more important.

Almost as interesting to me was the photo of Francis sitting in a circle of six men and women religious (non-ordained women and men). What’s missing? Nuns in regular clothes, no head covering, chatting with a pope! The Pope said nuns should expect threatening letters from the Vatican office formerly known as the Inquisition, but–yes he did say this–hey, stuff happens, don’t let it bother you, explain what you have to explain and move on! (source is Chilean website Reflexion y Liberacion)  He also criticized two “currents” in the 21st-century Roman Catholic church for trying to rehabilitate ancient inauthentic forms of faith: the “pelagian current” bent on restoration to the ways of Francis’s teenage years, which he lampooned by telling of one antimodern group that offered him the “spiritual treasure” of “3,525 rosaries” after his election this March; and a “gnostic current,” which he satirized with the story of a mother superior who encouraged the sisters to “give themselves a spiritual bath in the cosmos” in place of morning prayer. Tell us what you really think for a change. Francis said there is no way he could reform the Vatican bureaucracy himself because “I’m very disorganized.” But no worries, he has appointed an eight-member council of cardinals to kick butt and take names. Could be a bumpy and interesting ride.

Fin de Saison for The Mighty Wurlitzer?

Is it too soon to hope that the torch is being passed to a new generation that can make light of the surveillance state’s mighty Wurlitzer? Some may find this analogy excessive, but Swiss Protestant theologian Karl Barth was asked how to respond to the Nazi regime and he is supposed to have said, as if they weren’t there. That could be interpreted as quietism but need not be so. There can be plural forms of dissent and resistance as well–one can hope that the unlikely bedfellows across party lines who agree on the need for real change here will not take the too-familiar circular firing squad route. Or shoot ourselves with a horse tranquilizer gun like Will Ferrell in Old School. We have a shot, at least, at not being useful idiots in thrall to the surveillance-industrial complex. That would be change.

Part of keeping up appearances for the security state is to distract us by putting Snowden inside the Thirty Mile Zone of scurrilous rumor. But let us not be distracted, even and especially if internet culture tends to facilitate that.

“No Reason to Doubt Your System”

No, not in Hong Kong to escape justice. (Interior monologue: I welcome a debate in the Hong Kong legislature on revising the extradition treaty. We are all living in a semi-autonomous former colony anyway). Actual quotation: “I have been given no reason to doubt your system.”

He might have missed some news from 1997 there, but who knows how this game of go will be played? In related news circa 2017 President Rand Paul said
he would definitely not be using his Google glasses version 3.0 Special Global Sovereign Post-Singularity Personal Edition to snoop on private citizen Barack Obama.

The Commercial Republic Strikes Back

Booz Allen Hamilton may have a job on its hands to keep all its government contracts. Firing Edward Snowden was an unsurprising move today–just a little piece of defending their brand against the many other pigs at the national security trough. Blackwater/Xe/Academi were and are small-time operators compared with virtuosos of the revolving door like Booz.

Google’s letter to the Attorney General was interesting to me for its firm, consistent tone–like a teacher chastising a misbehaving pupil:

Google has worked tremendously hard over the past fifteen years to earn our users’ trust (quit messing with our coolness, you ignorant dopes) … We have consistently pushed back on overly broad government requests for our users’ data (get some focus, you annoying rent-seeking rascals) … We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures (keeping OUR Ministry of Enlightenment and Propaganda on track is a whole lot more important to the future of the world than whatever you are planning in your little government sandbox) … Google has nothing to hide (unlike you dirty things) … Google appreciates that you authorized the recent disclosure of general numbers for national security letters (just a reminder that in the long run we are the sovereigns here, in case you didn’t do your homework which is to reread Citizens United once a day) … Transparency here will likewise serve the public interest without harming national security (could you just get with the program without your usual dithering?)

Who really has the bigger (zettabyte?!) data center here?

It’s Not About Edward Snowden

Whether Edward Snowden is or is not a capulcu, a looter, as Erdogan called the folks protesting against the paving of their paradise in Istanbul, is not the main thing now. It was interesting to hear him speak his piece, but we ought to move on to what matters.

It’s about us, and the surveillance regime we countenance, or detest, or debate.

Jack Balkin, writing about “The Constitution and the National Surveillance State” in 2006, says that the surveillance state “is a way of governing. It is neither the product of emergency nor the product of war. . . . (It) will become as ubiquitous in time as the familiar devices of the regulatory and welfare states.” It goes beyond the panoptic model in that “analyzing and drawing connections between data” largely supplants “watching or threatening to watch.” The ever-lower cost of digital storage “portends the death of amnesia,” as the surveillance state becomes “the State that Never Forgets.” Balkin hopes that the U.S. will develop the habits of a democratic information state–information gourmandism and information philanthropy–rather than those of an authoritarian information state–information gluttony and information miserliness. Rather than trying to rescue the Fouth Amendment, which he seems to see as an almost lost cause, he proposes Congressional “superstatutes” to regulate data collection and institutionalize governmental amnesia. He asserts that meaningful oversight of the executive is only likely under divided government, and isn’t easy even then. Judicial pushback against executive assertions of stste secrecy seems dicey. Oversight within the executive branch, according to Balkin, can be crucial. And “we should construct surveillance architectures so that government surveillance is regularly recorded and available for audit by ombudsmen and executive branch inspectors.”

That was 2006. Funny how it played out kinda sorta that way, but with Edward Snowden as the 29-year-old outsourced quasi-private Booz Allen auditor and inspector. Who the heck did he think he was? Who cares. Mess or opportunity? Now we are all the auditors and inspectors.

We Don’t Need No Stinking Reliance Interests

In the stinking Fourth Amendment, that is

Which is of course not absolute–like the Fifth, and the Tenth, even the First–because making any one absolute would amount to making the Constitution a suicide pact.

But apologias for the surveillance regime status quo, and in particular the don’t worry be happy assertion that “if you aren’t doing anything wrong you have nothing to worry about,” just do not get the point of the Bill of Rights.

Dick Cheney exuded an attitude of “you don’t need no stinking reliance interest in privacy or due process.” Barack Obama took a different, smoother path–perhaps designed to make it harder to pursue a reliance damage claim on lost privileges and immunities of citizenship.

First Responders to Dystopia

When the newspaper that first broke the NSA stories, the Guardian, has Rand Paul write a comment piece in the Guardian attacking President Obama for abandoning the civil libertarian faith he once had as a Senator, that is cruel but maybe fair. But to read James Sensenbrenner (author of the Patriot Act) op-ed, “This abuse of the Patriot Act must end,” in same Guardian right next to Edward Snowden interview, today–is something wicked this way coming?

Expect Apple to announce tomorrow that their new line of “29th Anniversary of Our 1984 Super Bowl Ad” Macbooks will have flatter, simplified choice architecture to let you opt in or out of your Fourth Amendment rights on all platforms, including OS X LOL Cat

A Modest Encroachment by Boundless Informant

A modest proposal to President Obama (and also all employees of the national security apparatus): Glad to hear you welcome debate, and of course you don’t like leaks.  And we the people, many of us, sometimes pretend to ourselves we can have security and privacy all at a low, low rate. But since, as you have said more than once, you are not running for anything again, and might just go Bulworth any minute–don’t let me stop you–how about an aboveboard debate on whether Ben Franklin’s famous thoughts on the false tradeoff between liberty and safety still apply at all. Isaiah Berlin wrote of the need for both negative liberty and positive liberty, cautioned against perversions of both, and anticipated without distress endless “haggling” over where to draw the frontier between private life and public authority: he could be a helpful voice as we sort through complicated issues.  There are a host of problems and issues worth talking about. But if you believe that we are only dealing with “modest encroachments” here, well, I have some metadata I’d like to sell you. How fruitful will a debate be if we cannot acknowledge that, unpleasant as it may be, neither our memories nor our judgments are entirely reliable. Why not give us your unadorned views as if you and your national security professionals were fallible and as if we were grownups.  Your oath to faithfully execute the office of President is explicitly to preserve, protect and defend the Constitution. You know your job should not mean giving in to anyone, including Supreme Court justices, who see some amendments as absolute and others as flotsam. And we know the Constitution is not a suicide pact. But if your leadership of the national security state amounts to a continuation and intensification of the bad faith effort to make the President Commander-in-Chief of all Americans, our problems are really boundless.

Dumb Wars, Dumber Classifications

Barack Obama told us in 2002 that “I don’t oppose all wars…. what I am opposed to is a dumb war… a rash war.” And his May 23 speech showed his wish to get past the perpetual war on terror mindset, bearing in mind there will be more attacks from various directions. Who is wise enough and has a powerful enough megaphone to call out and persevere against dumb and dumber top secret classifications?

Obama to Us: Make My Day

In or near Silicon Valley today, just a short copter ride away from Harry Callahan’s SF, President Obama said he was tired of all the fear-mongering over Obamacare. Then he let all of us know that he did not “want the whole day to be a bleeding press conference.” And then he took a question or two about secret surveillance and told us that if we did not realize that “the folks you all vote for as your representatives in Congress” were on top of this, and that if they weren’t there were federal judges with life tenure looking over their shoulder, and that “if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.” Kind of makes me feel (to switch movie references) like I can’t handle the truth!

President Obama says “I welcome this debate.” (Ezra Klein asked if Obama might actually be the leaker. Very funny? But the creepily named Palantir operation is right down the road from where he was speaking–coincidence?) Furthermore Mr. Obama is within his rights, as it were, to point to “tradeoffs” between safety and privacy, whether or not he thought he could transcend such tradeoffs when he was a younger man or younger President. But when he complains about information being leaked “willy nilly” he reminds us precisely why there is a trust problem. We are mature, serious, conscientious blah blah. . . Those leakers are infantile, unstable, DSM-5 material. Is that so? Problems indeed.

Extended Stay Panopticon

We sort of knew we were in this prison. It was at least semi-self-imposed. But now it is harder to pretend that we did much of anything to frustrate the Obama administration’s normalization and legalization of this panopticon penitentiary (hat tip Jeremy Bentham, Michel Foucault, and just the other day Antonin Scalia).  Not so comfortable for those who hoped Barack Obama would do a better job upholding the Bill of Rights. Perhaps unsettling too for those who saw Dick Cheney do no wrong but find it hard to see Barack Obama do anything right (though the WSJ editorial today is typically in-your-face: “Thank You for Data-Mining”). It has been easy to see Senators Rand Paul and Ron Wyden as marginal figures up to now. With the cover blown on the scope of the dragnet, it is much harder to dismiss them as daft curiosities. Maintaining our own self-respect as free people is going to require more than most of us have yet given. Obama’s authority may have been pure-type charisma five years ago. Now we are compelled to face the prospect that he will be remembered (as he goes to meet Xi Jinping in California) as par excellence a mandarin bureaucrat.

Code Pink Signifies on Michelle Obama

In a friendly way, though. Medea Benjamin of Code Pink, in today’s Guardian, lets the First Lady in on how to respond to people who interrupt her by calling her man a hypocritical lying jackass. Jujitsu is the way, the truth, and the life, girl. Even W knew to duck and smile when a shoe was hurled at his head. Benjamin recalls the “legendary story about President Franklin Delano Roosevelt meeting with labor leader A. Philip Randolph about workers’ rights. . . FDR listened intently, then replied: ‘I agree with everything you have said. Now, make me do it.'” Michelle Obama may have momentarily lost sight of what she surely learned in church, that not one of us is without sin, and that even–especially–the powerful need to be pushed hard sometimes to think outside the Very Serious People preestablished harmony consensus bun and do the right thing.

Retrieving Ranting

We learned from the movie Ratatouille that anyone can cook. Even a rat. But can anyone rant? There seems no shortage of rant-like behavior, but how often do we witness an example that does justice to the original Ranters (see 17th-century radicalism, England). Justice Antonin Scalia, to give credit where it is undeniably due, may or may not be able to cook, but he delivered a fabulously compelling rant/dissent Monday that left Anthony Kennedy wearing just a dungbeetle-chewed leaf. When everyone from USA Today to The New York Times to The American Spectator thinks Justice Kennedy is either acting in bad faith or clueless (clueless seemed the consensus in re Citizens United), there are grounds for hope that the dissent was not merely a fine rant, that our cultures and our “the culture,” our pluribus and our unum so to say, are not utterly desensitized to the blessing, costly as it is, of presuming innocence. The four voices in the minority Monday may find allies in interesting places. Scalia’s often troll-like rhetoric hit the mark this time, in keeping the wound caused by these 21st-century general warrants rubbed raw.

Sobering update re general warrants via Guardian: Verizon and quite possibly all the other carriers are giving the NSA metadata on “millions” of customers

Swabbing Corporate Mouths

Mouthpieces of Google have reportedly assured us that Google Glasses will be incompatible with pornography and facial recognition apps, even though Larry Page, cofounder and CEO of the company fantasized at their annual developer conference in May of finding an island where he and other Burning Man alums could just be their non-incremental selves, free of any regulations. May we not hope that in such a fine place the chasm between Enlightenment and Romanticism could be bridged once and for all. That corporate personhood would embody such perfect goodness and love that all fear would be cast out so that limited liability would be cast aside and that the corporate mouth would voluntarily open wide to be gently and nonintrusively swabbed, but only for proof of concept, never merely to solve any unsolved crimes.

Pope Capable of Evolution?

Pope Francis weighed in last month on the possibility, and actuality, of atheists doing good in the world. His homily, given May 22 at his Vatican “dorm” to Vatican City employees and in the presence of the Patriarch of Antioch, declared that a proper doctrine of creation places atheists within the matrix of the unity of love of God and neighbor. One could hardly call this open-hearted homily good news for Roman Catholic tribalists. Thomas Rosica, a priest who worked in the Vatican press office during the recent papal transition, threw cold water on the universalist enthusiasm Pope Francis displayed. One may hope that Pope Francis as well as those who find the sources or source of good to be nontranscendent will find common ground in the world of action. In sum, Pope Francis, good for the atheists? Bad for the atheists? Don’t be a schmuck, time will tell. Francis is quite likely capable of both gradual and punctuated evolution–may the rest of us be so capable too.

Another non-Euclidean judgment day in Washington D.C. With 6/16 update

The fifth and last of Euclid’s “common notions” underlying his axioms and proofs is that the whole is greater than the part. Sadly five justices of the Supreme Court violated this baseline today by opening wide the door for coerced DNA sampling of persons arrested but not convicted of a crime. It would be a great day if we could solve unsolved cases, and bring some measure of relief to families and friends of victims, without paying a price in lost civil liberty. But we can’t. The “whole” in this case was the presumption of innocence. The majority today lost sight of that greater whole and wandered off into a scary non-Euclidean space.

Update (6/16): Having read on p. 101 of Maurice Merleau-Ponty’s Nature:Course Notes from the College de France that “Non-Euclidean spaces teach us that Euclidean space is not a de facto privileged structure. It is not the only real space among all spaces,” I hereby apologize to non-Euclidean spaces and all beings living therein.