Na na na na, hey hey-a, good bye

26 06 2013

I have sympathy for people who lose political contests. I know what it’s like to be on the losing end—it hurts—so on those occasions in which my side wins, I don’t much feel like grinding down ordinary folk on the losing side. (Leaders and sundy celebri-pols are another matter. . . .)

But on the DOMA case, my reaction is pretty much We won you lost; good! (And to the leaders and sundry celebri-pols rending their garments over the decision, my reaction is: We won, you lost, fuck you.)

The winning or losing of elections is not in and of itself a matter of justice: it’s a sorting mechanism for governance which can may lead to (un)just legislation, but any justice is located in the fairness of the contest itself, not the outcome. If you lose, it sucks, but it’s not unfair; as such graciousness is called for.

And if you win, that’s great, but it’s not a triumph of justice; as such, graciousness is called for.

But some laws are unfair, and as such, graciousness doesn’t apply. The Defense of Marriage Act was manifestly unfair, preventing same-sex couples full coverage under the law and thus equal protection of those same laws. DOMA actively disfavored a minority of citizens just because a majority thought they were icky.

(Yes, I know SSM opponents say that’s not at all the case, but I don’t believe it.)

DOMA was unjust. Those who supported it supported injustice. Whatever else they think DOMA stood for, it stood for injustice.

Thus, my ungracious response to DOMA defenders: You lost. You deserved to lose. And you deserve no sympathy for the loss.





You put the load right on me

27 03 2013

I don’t believe in rights.

No, no, that’s not, mm, right. I don’t believe in natural rights, inalienable rights, rights granted by the Creator. . . you know Imma ’bout to tag-team this off to Bentham, don’t you?

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.

Rights are, instead, rhetorical artifacts, crafted out of history and philosophy and given heft in political culture. They haven’t always existed; they may not always exist. But, for now, we act as if they do, and grant them such privileged status in our theories of liberty (another rhetorical artifact) that a claim of right serves to silence alternate claims of expedience and desire.

(Or, y’know, start a fight  if one’s rights claim is countered with another. Then Mill is invoked: The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people, i.e., my right to swing my arms ends at your nose. And when that doesn’t work, well, that’s another post.)

Where was I? Ah, yes: the durability and privileged status granted to rights.

Which brings me to Prop 8 and DOMA and Constitutional rights and democracy.

I’m not a Constitutional scholar, nor even a dedicated Court-watcher (more of a Court-peeper, actually), so I have nothing to say regarding the juridical strength and weaknesses of the petitioners arguments before the Court. I do find issues of Constitutional interpretation interesting, mainly because I find issues of interpretation interesting (and will blow a gasket at Scalia’s claims regarding originalism), but, today, I don’t have anything to say on what the justices may or ought to say about the Constituion vis-a-vis same-sex marriage.

This doesn’t mean I have nothing to say, of course. (D’oh!) Let’s talk politics! Yay! More specifically, let’s talk about the politics of rights-claims versus majoritarianism, and which is the better way to cement a political victory.

Ruth Bader Ginsberg has famously argued that Roe v. Wade was decided too broadly, that more and more states were moving to relax their abortion laws, and that by creating a federal right to abortion, the Court simultaneously energized the anti-abortion opposition and imperiled reproductive rights.

It is a plausible interpretation of events. I am not at all sure, however, that it is the correct one.

Which, roughly, brings us to the question: When ought claims be treated as preferences and run through majoritarian processes, and when ought they be treated as rights and granted (near) absolute status, safe from majority preferences?

I don’t know that there’s any good answer to this. On the one hand, I prize liberty, for which rights are a if not the crucial component, but I also prize representative democracy, in which majorities may legitimately impose their preferences on minorities. Turn everything into a right, and the collective may do nothing; disregard rights, and majorities become tyrannies.

It is demonstrably the case that majorities (or the fervent sub-majority among them) can get irritated when they are prevented from imposing their views on others, and, sometimes, may so strongly react against such prevention that the backlash may be worse than and last longer than would have the original situation.

So what’s a minority to do?

The Ginsberg approach argues in favor of the slog: get in and chip away, chip away, chip away, until the mountain pressing down upon you crumbles away. Once it’s gone, it’s damned well gone.

There’s a lot to recommend to this approach, and, on the whole, I favor it.

But that doesn’t mean one can’t or shouldn’t occasionally stick some dynamite into that mountain, yell FIRE IN THE HOLE! and blow that sucker to smithereens. Sometimes justice—oh, yeah, justice!—demands the weight removed in all due haste.

Sometimes justice says to hell with the backlash.

Justice, too, sits alongside and occasionally jostles rights and liberties in a democratic society. Minorities must have justice, but so, too, must majorities; is there any way to determine ahead of time who must carry the weight?

No, there isn’t. You go with what you’ve got, and if you lose in one arena, you try for the win in the other. If you think you’re right, if you believe your claim is a matter of liberty and justice for all, then you fight in every way possible.

That’s politics.

And a right to marry? I honestly don’t know if there is a right to marry, for anyone. But it seems that if that right is granted to some, then—liberty and justice for all—it should be granted to all.

~~~

h/t for that fantastic Michael Bérubé link—go ahead, click on it!—to Scott Lemieux, LGM





We might as well try: Come to me, come to me, set me free, set me free

18 10 2012

Oh, for the love of all that is greasy and salty!

A federal court strikes down DOMA and Jay Michaelson at The Daily Beast complains that the decision is. . . wait for it. . . too good.

TOO GOOD.

I’m a good American leftist, which means that I’m gloomy and pissy and rarely accused of optimism, but c’mon! This is is win!

Okay, maybe only a temporary win, maybe five members of the Supreme Court will decide that the equal protection clause in the 14th Amendment doesn’t mean equal equal, y’know, equal for anyone who isn’t all regular and equal and everything (remember: gotta see the downside), but as Michaelson himself finally notes, “when it comes to the high court, you really never know.”

Oh really? After arguing that the standards of scrutiny two recent court rulings invoked in their reasons for overturning DOMA won’t be accepted by the Supremes, he finally gets around to noting:

It’s also worth stepping back from the legal details in cases like these. Intermediate scrutiny, narrowly tailored, suspect class … these legalisms are often critical to how the case turns out, but they don’t get to the human heart of the stories. What these cases are really about are widows like Edith Windsor who deserve equal rights. For her, of course, this case is an unqualified victory.

(Am I being churlish if I note that the victory is not “unqualified” if, in fact, the Supreme Court overrules it? I am not, because that is a matter of fact, not speculation. Unlike the rest of Michaelson’s higgledy-piggledy piece.)

I take inordinate pride in my scowl, and the side-eye I give the world is not an act, but even I think we leftists, liberals, and fellow-travellers might do ourselves a favor if we remembered the old cries of We want bread and roses, too! and If I can’t dance I don’t want to be a part of your revolution.

If we can’t find joy even in our wins, why the hell would anyone else want to join us?

Let’s leave the bitterness and fear to those who want to make our world smaller.

Let us be large. Let us embrace the whole, wide, messy world. Let us laugh and gambol around in the sand and leaves and snow. Let us throw our arms out to our fellow human beings and say there is so much more to to all of us, so much more for all of us.

Let us all be something more.