Sometimes the way we phrase things matters a lot. Take a look at the following from some Manhattan Institute thinktanker:

>In the heat of this past year’s election debate, Democrats fiercely criticized the Patriot Act and NSA programs that monitor terrorist phone calls and bank transactions. As Democrats now assume the responsibility of governing, Americans should hope that our new Congressional leadership will closely examine the evidence on these important national security measures before taking any hasty legislative action.

Let’s hope in the first place that no one takes any hasty legislative action. And I’ll leave it to the rhetoric people to assess the implication of this otherwise dismal piece that the Democrats are soft on terrorism. But I can’t help myself from applauding this appallingly silly conclusion:

>Simply hoping our government somehow stumbles upon terrorist plotters is not a reliable counter-terrorism strategy. We have to use our law enforcement capacity to go out and look. As the Barot case shows us, the stakes are simply too high.

And who advocates that? Perhaps the same people who can’t be bothered to read the memos with such titles as “Bin Laden Determined to Attack the United States

Necessary but not sufficient

Borat seems to have irked the association of rightward commentators. Both David Brooks and Jonah Goldberg have complained about it (at least Goldberg thought it was funny). Now Krauthammer joins in (and he even cites the acute observation of David Brooks). What gets Krauthammer’s goat is the implicational insult to the rabid evangelical supporter of the nation of Israel (nota bene: by “nation of Israel” we do not mean “Jews”). He writes:

>Sacha Baron Cohen, the creator of the film “Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan,” revealed his purpose for doing that in a rare out-of-character interview he granted Rolling Stone in part to counter charges that he was promoting anti-Semitism. On the face of it, this would be odd, given that Cohen is himself a Sabbath-observing Jew. His defense is that he is using Borat’s anti-Semitism as a “tool” to expose it in others. And that his Arizona bar stunt revealed if not anti-Semitism, then “indifference” to anti-Semitism. And that, he maintains, was the path to the Holocaust.

But there are two serious problems with Krauthammer’s argument.

First, as I read this claim, I think Cohen is probably suggesting that American indifference to other’s unashamed and virulent racism is a necessary but not a sufficient cause of organized and systematic genocide like the Holocaust. There would have been no Holocaust, perhaps, had so many Germans and Poles and Italians and French and many others not been indifferent. That point seems obvious. He’s hardly claiming, as Krauthammer seems to suggest, that they were the necessary and sufficient cause–that the indifferent brought it about. The indifferent don’t bring anything about. They fail to stop or help others from bringing about. The positive anti-semitism of others is another matter.

The second problem is that Krauthammer is fundamentally confused about who Cohen is criticizing. So from the Arizona bar stunt, Krauthammer reads a criticism of Christian Evangelicals. What they would be doing in a bar is beyond me. But more to the point, it’s not clear that Cohen even criticizes them specifically (if he does, please tell me).

But even if he did, somehow Krauthammer will have to explain that many Christian Evangelicals defend the nation of Israel in order (1) to help bring about the end times; and (2) the unconverted Jews (at the end times) will have no share in paradise. They are merely the means to the salvation of Christians.


So often I hear people admit that while the argument in some op-ed is wrong, "the point" is somehow still good. To some extent, such an attitude is due to the principle of charity. Too much charity, in my book, because the point of the op-ed is an admitted failure. To this end, Simon Maloy of makes an indispensable, um, point:

Here's a quick lesson for Poe on the relationship between "facts" and "points": When making a "point," one must rely on "facts." When one's "facts" turn out to be false, one no longer has a "point." The "facts" Theodoracopoulos used in his article turned out to be false — a "fact" Poe acknowledged — which means Theodoracopoulos ceased to have a "point."

We would say the same thing. We would also add, when one's argument turns out to be weak, one ceases also then to have a point.

You’re kidding, right?

In the years prior to September 11th, how many 9/11-style terror attacks were there? At what frequency? I ask because some continue to suggest that the absence of such attacks in the wake of 9/11 is an achievement:

>For more than three years, partisan opponents of the Bush administration have made two arguments against its conduct of the “global war on terror.”

>First, they’ve argued, the absence of another Sept. 11-like attack has not been the result of anything our government has done, here or overseas. Remember, after conditions in Iraq began to worsen, they began to say we were in even more jeopardy at home than we were five years ago.

Sorry Dr.Hanson, but absence of evidence is not evidence. Though a panicky media and government believed 9/11 was but the first of many attacks, experts suggested otherwise. Besides, terror attacks of the al Qaeda variety have taken place in both London and Madrid. Remember, the terrorists make no distinction among infidels (as we make no distinction among the terrorists and those who harbor them–except when we do).

This argument ought to be put to bed. The editors of the newspaper ought to delete it as they would a dangling participle.

Relativism at the heart of Reason

Arguments from cultural relativism sometimes strike me as acts of desperation: Unable to argue against a position, one argues that taking any position is irresponsible because others disagree with it. From a certain context-free perspective everything can appear to be arbitrary and unjustifiable. Jacob Sullum exploits this sort of argument in a column in Reason. His dudgeon is raised by the passage in the House of H.R. 503, a bill to “amend the Horse Protection Act to prohibit. . . the slaughter of Horses for human consumption and other purposes.”

>Horses are nice. Killing them for food is mean. This is the gist of the argument for the American Horse Slaughter Prevention Act.

Or so claims Sullum.

>Congress is on the verge of passing a law aimed at stopping Americans from catering to foreigners’ taste for horse meat. I generally avoid the phrase cultural imperialism, since it’s often used by people who object to the voluntary consumption of American products by non-Americans. But when Americans want to forcibly impose their culinary preferences on people in other countries, it fits pretty well.

Avoiding the phrase “cultural imperialism” seems to have resulted in not understanding it. If not providing for another culture’s culinary preferences is somehow “forcibly imposing culinary preference on people in other countries,” then the notion of “cultural imperialism” seems to collapse into sheer meaninglessness.

>Perhaps they can enlighten me as well: What is the legally relevant distinction between a horse and a cow? Is it aesthetic? Lambs are awfully cute. Is the issue intelligence? Pigs are pretty smart.

This is a very good question that Sullum has almost stumbled upon. In this case, however, the legally significant distinction is that one species has been legally designated as sellable for food for human consumption and the other has not in many States (I believe this to be true. The sale of horse meat was made legal during WWII in some states and made illegal again after the war. Texas and California I believe have made the sale of horse meat illegal). Presumably Sullum would disagree that this distinction is justified, but the question in his text needs to be answered first by some acquaintance with the relevant laws concerning animals. And whether Sullum agrees or not our legal codes regularly distinguish between species and the protections that they are afforded: For example, animals used for agricultural purposes are explicitly excluded from most anti-cruelty legislation.

What Sullum needs to ask is what is the “morally significant distinction” between a horse and a cow? But, if we ask that, we might discover that the “lever” of arbitrariness does not expand the exclusions from animal protection laws, but works in the other direction. If Sullum’s rejection of the arbitrariness of the banning of slaughtering horses for food is generalized, he would be arguing that since some animals can be made to suffer for purposes of medical knowledge and food, all animals can be made to suffer for such purposes. To the contrary, if one holds that some cruelty laws are justified, then there should be no arbitrary exclusions from them—they should cover all animals.

But to return to horses: Sullum’s claim that the protection of horses from slaughter is arbitrary in a country that slaughters other species for food is hard to dispute. But, at the same time it is not particularly telling as an argument against the Horse Slaughter Prevention Act, even if provides an easy opportunity to ridicule the bills supporters. That some animals have special places in human lives and so receive special protections from exploitation is in part a compromise we make with our intuitive sense that animals are not mere things. It is undoubtedly arbitrary but in the same way that our preference for the interests of our friends and family over strangers is arbitrary.

If nothing else, proponents will argue, passage of this bill will lessen (in however small a way) the suffering of some animals—and that by itself would make this a good law–which does not seem to be the same thing as arguing:

>Horses are nice. Killing them for food is mean. This is the gist of the argument for the American Horse Slaughter Prevention Act.

Stupid law

Capital punishment poses certain insurmountable barriers. The first among these is the fact that there are no mulligans (a) for executing the innocent or (b) executing people denied a fair trial for lack of competent legal representation or other equally justifiable matters. Among these last one one might include “improper jury instruction”. That’s what California’s famous or infamous Ninth Circuit did in Belmontes. Here is how George Will tells it:

>Reinhardt, writing for the 9th’s divided three-judge panel, overturned Belmontes’s death sentence because the trial judge “failed to instruct the jury that it was required to consider” what Reinhardt considered Belmontes’s “principal mitigation evidence” — his aptitude for prison life. On Monday the Supreme Court ruled 5 to 4 against the 9th.

That’s a fairly straightforward question of statute interpretation. But judicial restraint and literalism has its limits:

>Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, argued that there was a reasonable probability that the jury weighed Belmontes’s “future potential.” Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented, arguing that because the trial judge never explicitly told the jury that it must consider Belmontes’s capacity to live satisfactorily in prison, there is a “reasonable likelihood” that the jury did not.

And it appears that in this particular case those limits are the ability of the five conservative justices of the SCOTUS divining the contents of a jury’s mind rather than strictly applying the law, as the minority justices and the Ninth Circuit argued. The article lampoons the Ninth and the minority justices on grounds usually reserved (by Will) for praising the majority.

Will’s entire case rests on this highlighted portion of the following:

>Belmontes’s attorney asked the trial judge to specifically instruct the jury to consider Belmontes’s ability to live acceptably in prison. Instead, the judge used California’s “catchall mitigation instruction,” which was declared constitutional in 1990. It tells a jury weighing capital punishment that it can consider many things (e.g., the use of force or violence, the defendant’s age, any extreme mental or emotional disturbance, prior felony convictions). Belmontes’s case turned on whether the jury understood one provision of the catchall instruction — to consider “[a]ny other circumstance which extenuates the gravity of the crime” — to include the “forward-looking” consideration that life imprisonment might be a suitable punishment.

While that may be relevant, it does not appear (from Will’s piece) that the 1990 ruling is retroactive. If it is, perhaps he ought to explain how it applies or should apply to a case that probably happened earlier. While doing that, he can also explain whether that ruling encompasses all previous rulings on jury instruction (such as the one used in the Ninth Circuit’s decision). These things we are not told.

But here’s the kicker. The difficulty of quickly or fairly implementing the death penalty ought to cause one to re-evaluate whether or not we ought to try.

>There is something grotesque about an execution a quarter of a century after a crime. But there is something repellent about the jurisprudential hairsplitting that consumes decades, defeats the conclusions of juries’ deliberations and denies society the implementation of a punishment it has endorsed.

Yes. There is something grotesque about legal rights. But until we abandon the Constitution and its myriad protections, we’re stuck with the current system.

Quo status?

It’s hard to have a debate when the people who want to participate don’t know what the debate is about. We mentioned this the other week–we took election week off–with Jonah Goldberg’s discussion of the border fence. And again in the past few days the my way or the status quo meme has reappeared:

>Increased border patrol, a 700-mile fence to stop the easiest access routes (something President Bush signed into law two weeks ago), employer sanctions and encouragement of one official language can all help solve the crisis. But once the debate is renewed, congressional reformers will be blitzed by advocates of the failed status quo with a series of false assumptions concerning the issue.

That’s V.D.Hanson, a man quickly becoming a Nonsequitur star. The problem here is that no one seriously advocates the status quo. It’s tiresome to point this out, but take a look at the following:

>Take, for example, the shared self-interest argument–that the benefits to both the U.S. and Mexico of leaving our borders open trumps the need for enforcement of existing laws and outweighs the costs to U.S. taxpayers that result from massive influxes of poor illegal aliens.

Take also for example the argument for turning the elderly into soylent green. “Leaving the borders open” is rather different from “tolerating illegal immigration as it stands.” I don’t think even these cold-hearted people would advocate the current system of institutionalized illegality. And so for the rest.

Peanut Parents

Adults never appear in the Peanuts cartoons; one only hears their voices uttering nonsensical noises: waw waw waw waw. Much the same is the case for the adults in any of Jonah Goldberg’s columns. But today this is literally true:

>There are two obvious ways to save the bankrupt liberal talk-radio network Air America: Get Al Franken some new, funny material and hire a Lou Dobbs. I say “a” Lou Dobbs because the CNN host himself is probably too expensive, but his limousine populism is pretty easy to rip off: “Blah, blah, blah. Corporations are out to get you, Washington has sold you out, the fat cats have declared war on the little guy,” and so on.

I’ve asked this before: need we even bother?

Differences without distinctions

According to Robert Kagan, the Democrats are the same as Republicans, er “fundamentally”:

>Although [the Democrats] pretend they have a fundamental doctrinal dispute with the Bush administration, their recommendations are less far-reaching. They argue that the United States should generally try to be nicer, employ more “soft power” and be more effective when it employs “hard power.” That may be good advice, but it hardly qualifies as an alternative doctrine.

What’s one reason there isn’t much of a difference?

>Even today leading Democrats who oppose the Iraq war do not oppose the idea of war itself or its utility. They’re not even denouncing a defense budget approaching $500 billion per year.

That’s setting the bar for substantial difference so high that only avowed pacifists will qualify for being the opposition party. At bottom, rhetorical strategy consists in his claiming for the Republicans every foreign policy view short of radical anti-american opposition. This strategy at once demonizes and trivializes sensible opposition to this administrations disasterous policies.