Category Archives: Plain Bad Arguments

Not just pundits like the cheap shot


Tucked in the last paragraph of an otherwise banal review of Jonathen Foer's Eating Animals we find this gem

He uses the word “atrocities” to describe the cruelties visited upon baby turkeys and chickens and writes that KFC “is arguably the company that has increased the sum total of suffering in the world more than any other in history.” He asserts that “we have let the factory farm replace farming for the same reasons our cultures have relegated minorities to being second-class members of society and kept women under the power of men.” And in another section he talks about “the shame” he felt as an American tourist in Europe when “photos of Abu Ghraib proliferated” and then speaks in the very next sentence about the “shame in being human: the shame of knowing that 20 of the roughly 35 classified species of sea horse worldwide are threatened with extinction because they are killed ‘unintentionally’ in seafood production.”

Anticipating reader objections, Mr. Foer writes that people might say “social-justice movements” have “nothing to do with the situation of the factory farm,” that “human oppression is not animal abuse.” But he adds that in his view we interpret the legacies of the Rev. Dr. Martin Luther King Jr. and Cesar Chavez “too narrowly if we assume in advance that they cannot speak against the oppression of the factory farm.”

It’s arguments like this that undermine the many more valid observations in this book, and make readers wonder how the author can expend so much energy and caring on the fate of pigs and chickens, when, say, malaria kills nearly a million people a year (most of them children), and conflict and disease in Congo since the mid-1990s have left an estimated five million dead and hundreds of thousands of women and girls raped and have driven more than a million people from their homes.

As it stands this isn't an argument,  and so isn't fallacious. But, it seems to me that this move is deployed as a sort of defensive argument to shift the burden of moral justification. It questions the author's moral authority, rather than his argument, with a quasi ad hominem circumstantial fallacy wapped in a slice of accusation of hypocrisy. Although it doesn't assert that Foer's conclusion that we should end the massive vicious violence of our current systems of meat "production" is false, it certainly suggests that Foer is, at least, suspect for wanting to make such an assertion. It's about as cheap an argument as you can squeeze into a book review.

Of course, if we allow this move in this discourse, then it seems to me that it can be used about caring about anything–I certainly wonder how this author "can expend so much energy and caring on reading books, when, say, malaria kills nearly a million people a year."

Insofar as it is an argument, it seems to rest on some sort of premise such as that "animal suffering can matter only if human suffering is abolished." This seems likely false to me and seems to miss Foer's point which seems relatively benign–that we should not assume that social justice discourse does not have anything to say about how we treat animals, or that there are similarities between how we degrade human beings and how we treat animals.

Does David Broder read the Washington Post?

Two short points today. We’re still working out the kinks here.

First, my view is that we ought to redo our health care system. I think this is a matter of national security, much more say than the imaginary weapons of a fictional dictator. People here actually die from lack of adequate health care. Now, since it’s a matter of national security, and since we continue to pay richly for imaginary threats to our national security, we ought to not complain about things that are real. This is why this kind of stuff from David Broder) raises one’s blood pressure:

Acknowledging that “clearly, we need radical reconstructive surgery to make our health-care system effective, affordable and sustainable,” Walker cautioned that “what we should not do is merely tack new programs onto a system that is fundamentally flawed” — and rapidly driving the national budget into ruin.

He proposes a four-part test of fiscal responsibility for any health reform plan: “First, the reform should pay for itself over 10 years. Second, it should not add to deficits beyond 10 years. Third, it should significantly reduce the tens of trillions of dollars in unfunded health promises that we already have. Fourth, it should bend down — not up — the total health-care cost curve as a percentage of” gross domestic product.

If only people had made this argument about Iraq and Afghanistan.

Next point, the Lewin group is an insurance company-funded group. One ought not to cite them as independent and impartial observers. Following directly from the above:

An analysis by the Lewin Group shows that the Energy and Commerce Committee bill that was the basic blueprint for the House measure comes close to meeting the first of those tests and fails the other three, according to Walker, “by a wide margin.”

A separate Lewin Group study of the Finance Committee bill from which Majority Leader Harry Reid is working on the Senate legislation shows it is almost as much of a fiscal failure. It fails the fourth test, falls short on the third, and passes the first two only by assuming that future Congresses will force reductions in reimbursements to doctors and hospitals that lawmakers in the past have refused to impose.

Here is the Washington Post on the Lewin group on 7.23/2009:

Generally left unsaid amid all the citations is that the Lewin Group is wholly owned by UnitedHealth Group, one of the nation’s largest insurers.

Doesn’t Broder read his own paper?

You have a right to be wrong

True story.  A few years back one of my students had confused some minor matter about a text of Plato.  When I pointed that out, another student commented: "He has a right to be wrong."  That odd justification comes out in a George Will op-ed where he, unlike his usual, argues for new rights not enumerated in the constitution.  Now of course he probably thinks he can get there with a series of individually valid inferences.  Fine, but you have to understand that any other time one maintains a right not specifically enumerated in the Constitution, Will will shout "judicial activism" or some other synonym.  Don't get me wrong, I believe in the concept of inferential rights, I just think it's funny that Will doesn't, until he does.

This is not to say, however, that Will does not have a point.  He may, but I think, as is perhaps no surprise, that his argument for it sucks.  He maintains as a kind of premise one that liberals want to coerce others to believe like they do–this is their MO, which is a word the very pretentious Will would likely spell out: Modus operandi.  It's a little ironic, since the specific topic in question concerns the desire of some (not the liberals) to limit the rights of others to engage in private, self-regarding behavior.  Some people, not happy with the structure of our democracy (where fundamental rights get interpreted out of the Constitution sometimes), gather signatures to put such matters on the ballot.  This raises an important question: are signatures on referendums like voting and therefore private? 

I think it's fair to say that such a question admits of no easy answer.  But just because it doesn't admit of an easy answer, does not mean any answer, such as the following one offered by Will, will suffice:

The Supreme Court has held that disclosure requirements serve three government interests: They provide information about the flow of political money, they deter corruption and avoid the appearance thereof by revealing large contributions, and they facilitate enforcement of contribution limits. These pertain only to financial information in candidate elections. These cannot justify compelled disclosures regarding referendums because referendums raise no issues of officials' future performance in office — being corruptly responsive to financial contributors. The only relevant information about referendums is in the text of the propositions.

In 1973, Washington's secretary of state ruled that signing an initiative or referendum petition is "a form of voting" and that violating voters' privacy could have adverse "political ramifications" for those signing. In 2009, some advocates of disclosure plan to put signers' names on the Internet in order to force "uncomfortable" conversations.

In the interest of fairness, something I'm always interested in by the way, the above two paragraphs make some attempt at arguing for the position that referendum signatures ought to be private.  I think their attempt fails: The first is irrelevant to the particular issue and the second cites the irrelevant precedent of the secretary of state.  A referendum petition by any standard is not a vote: you sign your name and put your address on it for the purposes of public inspection of its authenticity.  You do not sign your vote. 

In any case, the following arguments for the above proposition really blow:

Larry Stickney, a social conservative and president of the Washington Values Alliance, says that disclosure of the identities of petitioners will enable "ideological background checks" that will have a chilling effect on political participation. He frequently encounters people who flinch from involvement with the referendum when they learn that disclosure of their involvement is possible. He has received abusive e-mails and late-night telephone calls and has seen a stranger on his front lawn taking pictures of his house.

The Wall Street Journal's John Fund reports that some Californians who gave financial support to last year's successful campaign for Proposition 8 — it declared marriage to be only between a man and a woman — subsequently suffered significant harm. For example, the director of the Los Angeles Film Festival, who contributed $1,500, was forced to resign. So was the manager of a fashionable Los Angeles restaurant who contributed just $100.

The first paragraph offers evidence that vociferous advocates may suffer the paranoia that comes along with taking an unpopular position on a matter of public interest.  It does not establish that a private citizen whose only action was signing a petition may suffer these things.  The second paragraph shows that people who have given financial support, something about which disclosure has been determined to be legitimate (and admitted to by Will himself only a three paragraphs before) have suffered harm.  I don't think one can be fired for one's political affiliations–there are laws against that I believe.

Charles Bouley, a gay columnist, has honorably protested such bullying. He says that people "have the right to be wrong," and reminds gay activists: "Even Barack Obama said marriage was between a man and a woman at a time when we needed his voice on our side on equality. He let us down, too, remember, and many of you still gave him a job."

Indeed, people do have a right to be wrong, and others have a duty to point that out.

Argumentum ad Novi Eboraci Tempora

That would be "ad New York Times" I suppose.  I take as a matter or religious faith that global warming is a scientific issue, and that arguments concerning its reality or unreality should start and end there.  So when one frames the argument about global warming either in response to a Newsweek headline many years ago, or a New York Times article quoted out of context, I think that person is either not particularly well informed about how scientists work (they don't publish their work in the newspaper) or is just plain dishonest.  So George Will today frames his argument against the existence of a well-supported phenomenon by attacking the New York Times, as well as various context free quotes, meant–the quotes–to set up a pretty silly ad hominem.  

He writes:

Plateau in Temperatures

Adds Difficulty to Task

Of Reaching a Solution

— New York Times, Sept. 23


In this headline on a New York Times story about the difficulties confronting people alarmed about global warming, note the word "plateau." It dismisses the unpleasant — to some people — fact that global warming is maddeningly (to the same people) slow to vindicate their apocalyptic warnings about it.

The "difficulty" — the "intricate challenge," the Times says — is "building momentum" for carbon reduction "when global temperatures have been relatively stable for a decade and may even drop in the next few years." That was in the Times's first paragraph.

Whenever this guy quotes stuff, you'd better go read the original.  Here's what it says:

The plateau in temperatures has been seized upon by skeptics as evidence that the threat of global warming is overblown. And some climate experts worry that it could hamper treaty negotiations and slow the progress of legislation to curb carbon dioxide emissions in the United States.

Scientists say the pattern of the last decade — after a precipitous rise in average global temperatures in the 1990s — is a result of cyclical variations in ocean conditions and has no bearing on the long-term warming effects of greenhouse gases building up in the atmosphere.

The part about the scientists is where the argument ought to be.  Will instead insists that the real discussion is the political question of how to keep non-scientists from wrongly concluding, as Will has in this very piece, that the leveling off of temperatures means it's all a crock.  That's the point of the argument.  Will cites this piece extensively, and he seems to have no notion of what it's about.  Here's what he says:

The Times reported that "scientists" — all of them? — say the 11 years of temperature stability has "no bearing," none, on long-term warming. Some scientists say "cool stretches are inevitable." Others say there may be growth of Arctic sea ice, but the growth will be "temporary." According to the Times, however, "scientists" say that "trying to communicate such scientific nuances to the public — and to policymakers — can be frustrating." 

The quoted bits give the impression of some kind of fudging on the Times' part (like the black and white and weird voice in political commercials).  In any case, as I understand it, the basic point is this: The globe has heated up seriously for a quite a while.  Recently it has leveled off, but it still remains much hotter, so to speak, than before.  This is not unlike a guy with a really bad fever, experiencing a bit of dip, say a dip to 102.  He's still got a fever. 

Anyway, now for the ad hominem part:

The Times says "a short-term trend gives ammunition to skeptics of climate change." Actually, what makes skeptics skeptical is the accumulating evidence that theories predicting catastrophe from man-made climate change are impervious to evidence. The theories are unfalsifiable, at least in the "short run." And the "short run" is defined as however many decades must pass until the evidence begins to fit the hypotheses.

The Post recently reported the theory of a University of Virginia professor emeritus who thinks that, many millennia ago, primitive agriculture — burning forests, creating methane-emitting rice paddies, etc. — produced enough greenhouse gases to warm the planet at least a degree. The theory is interesting. Even more interesting is the reaction to it by people such as the Columbia University professor who says it makes him "really upset" because it might encourage opponents of legislation combating global warming.

This professor emeritus fellow is the only scientist Will cites in favor of his skeptical stance.  Nonetheless, the worry among scientists, justifiable as this piece indicates, is that people with no expertise will misunderstand the significance of the data.


The world in black and white

Does some of the criticism directed at Obama have to do with race?  Undoubtedly.  Does that mean the people from whom it issues are frothing at the mouth KKK-style racists?  No, obviously not.  Someone please tell David Brooks.  Here he is describing his experience last week at the 9/12 protests:

You wouldn’t know it to look at me, but I go running several times a week. My favorite route, because it’s so flat, is from the Lincoln Memorial to the U.S. Capitol and back. I was there last Saturday and found myself plodding through tens of thousands of anti-government “tea party” protesters.

They were carrying “Don’t Tread on Me” flags, “End the Fed” placards and signs condemning big government, Barack Obama, socialist health care and various elite institutions.

Then, as I got to where the Smithsonian museums start, I came across another rally, the Black Family Reunion Celebration. Several thousand people had gathered to celebrate African-American culture. I noticed that the mostly white tea party protesters were mingling in with the mostly black family reunion celebrants. The tea party people were buying lunch from the family reunion food stands. They had joined the audience of a rap concert.

Because sociology is more important than fitness, I stopped to watch the interaction. These two groups were from opposite ends of the political and cultural spectrum. They’d both been energized by eloquent speakers. Yet I couldn’t discern any tension between them. It was just different groups of people milling about like at any park or sports arena.

Notice that Brooks doesn't give us any reason to suppose that the two groups were from "the opposite ends of the political and cultural spectrum."  I'm not even sure what it means to be from the opposite end of the "cultural spectrum" (black vs. white?) now that I think of it.  I find it remarkably odd that he would think of it this way, since it is obvious that the family reunion had nothing to do with the tea party protest–they weren't, after all, counter-protesters, they were just there.

More importantly, however, is the fact that he takes peaceful interaction between a white group of people and a black one to be evidence of the non-existence of racist motivations on the part of some (some some some) of the white people.  Is he expecting that they would treat the black people they meet rudely?

I think the accusations of a racial component to current anti-government feeling has something to do with certain celebrated conservative talkers fomenting fear among whites of racism directed at them–no., it's Obama who is a racist.  It might also have something to do with the fact that the mainstream media asking, every time a black man or woman does something, what Obama thinks of it.  What Obama has to contribute to the Kanye story is beyond me.  I wonder why no one is talking about Obama's take on the crazy child abductors in California.

A minor spot in our debates

The Post has two people who write on the economy, George Will and Robert Samuelson.  Both of them are conservatives.  Both of them stink at it.  Not long ago Samuelson argued that investing in rail transit would be a waste of money, because it serves so little of the country.  He forgot to mention such notions as population density, etc.  

Today he writes about health care.  In classic Samuelson fashion, he argues that controlling costs is somehow logically impossible:

Americans generally want three things from their health-care system. First, they think that everyone has a moral right to needed care; that suggests universal insurance. Second, they want choice; they want to select their doctors — and want doctors to determine treatment. Finally, people want costs controlled; health care shouldn't consume all private compensation or taxes.

Appealing to these expectations, Obama told Americans what they want to hear. People with insurance won't be required to change plans or doctors; they'll enjoy more security because insurance companies won't be permitted to deny coverage based on "pre-existing conditions" or cancel policies when people get sick. All Americans will be required to have insurance, but those who can't afford it will get subsidies.

As for costs, not to worry. "Reducing the waste and inefficiency in Medicare and Medicaid will pay for most of this plan," Obama said. He pledged to "not sign a plan that adds one dime to our [budget] deficits — either now or in the future." If you believe Obama, what's not to like? Universal insurance. Continued choice. Lower costs.

The problem is that you can't entirely believe Obama. If he were candid — if we were candid — we'd all acknowledge that the goals of our ideal health-care system collide. Perhaps we can have any two, but not all three.

Baring the fictional–yes fictional–scenario where you get to chose your own doctor and your own care (your insurance company does so long as you "qualify," which means so long as you don't get sick), every other industrialized democracy in the world has solved this problem.  They get more than we do for half of the cost.  That's just true folks.  As Obama has argued over and over, one problem we suffer from here in our capitalist paradise is a lack of competition in health insurance.  There is simply no incentive to deliver it cheaper.  So you can have all three indeed.  We should have all three.  If we can't get all three, we will suck.

For contrast, here is something Nicholas Kristof got right:

After Al Qaeda killed nearly 3,000 Americans, eight years ago on Friday, we went to war and spent hundreds of billions of dollars ensuring that this would not happen again. Yet every two months, that many people die because of our failure to provide universal insurance — and yet many members of Congress want us to do nothing?

Here, by the way, is Samuelson's view on the affordability of the Iraq war:

Yes, that column made big mistakes. The war has cost far more than I (or almost anyone) anticipated. Still, I defend the column's central thesis, which remains relevant today: Budget costs should not shape our Iraq policy. Frankly, I don't know what we should do now. But in considering the various proposals — President Bush's "surge," fewer troops or redeployment of those already there — the costs should be a footnote. We ought to focus mostly on what's best for America's security. 

He is referring to a 2002 column where he argued we could "afford" the Iraq war, a war which, by the way, would cost more than any health care fix (I can't find the original article on the Post's website).  And indeed, who can disagree with this closing remark on that column?

But I am certain — now as then — that budget consequences should occupy a minor spot in our debates. It's not that the costs are unimportant; it's simply that they're overshadowed by other considerations that are so much more important. We can pay for whatever's necessary. If we decide to do less because that's the most sensible policy, we shouldn't delude ourselves that any "savings" will rescue us from our long-term budget predicament, which involves the huge costs of federal retirement programs. Just because the war is unpopular doesn't mean it's the source of all our problems. 

A minor spot, unless it's health care.


I think right now we have a system that rations health care.  It denies it to  the 47 or so million people who don't have insurance; it restricts health care to the people who don't have enough insurance; it denies it those people who get sick or have a preexisting condition; and it limits it those people who can't afford the limits and co-pays.  The real worry, however, for Michael Gerson, is whether (1) somehow people can afford abortions–a  procedure which is legal; (2) whether there will be rationing.  To be fair, he admits–sort of–that there is rationing.  Rationing done by insurance companies. 

The same is likely to be true of end-of-life issues. Talk of "death panels" is the parody of the debate — hyperbolic and self-defeating. But a discussion about the prospect of rationing in a public health system is not only permissible but unavoidable. Every nation that has promised comprehensive, low-cost health coverage for all citizens has faced a similar dilemma. Eventually it is not enough to increase public spending or to reduce waste. More direct forms of cost control become an overwhelming priority. And because health expenditures are weighted toward the end of life, the rationing of health care often concerns older people most directly.

Keith Hennessey, former director of the National Economic Council, puts the dilemma simply: "Resources are constrained, and so someone has to make the cost-benefit decision, either by creating a rule or making decisions on a case-by-case basis. Many of those decisions are now made by insurers and employers. The House and Senate bills would move some of those decisions into the government. Changing the locus of the decision does not relax the resource constraint. It just changes who has power and control."

So he admits it.  It would be nice at this point to talk about the effectiveness or the fairness of the current program of rationing.  But no.  

Because no one likes to ration directly, nations such as Britain and Germany employ "comparative effectiveness research" to lend an air of science to the process of cost constraint. Are "quality-adjusted life years" worth the public expense of a new drug or technology?

This type of question is unavoidable when resources are scarce and planners take charge. They seek to rationalize the inefficient medical decisions of families, doctors and insurance companies. But the very process of imposing a rational structure gives government extraordinary power. And the approach taken by planners is, by necessity, utilitarian — considering the greatest good for the greatest number. Decisions cannot be made on a human scale.

On the rough ethical edges of life and death, American health care has adopted messy, inefficient, decentralized compromises that a nationalized system is likely to overturn. Particularly if that system is imposed on a "go-it-alone" Democratic strategy, the divisiveness is only beginning.

The weird thing about this argument is that the insurance company is now the victim–not the perpetrator–of rationing.  On the current system, they're the ones who decide who gets covered and who doesn't.  The basis of their choice is a very simple and efficient one: (1) who is not sick; (2) who can pay.  The very idea of alternative system, one which bases decisions on care on some kind of principle (and no for Pete's sake it doesn't have to be by necessity "utilitarian") to Gerson raises the specter of Soylent Green.  It's people folks, it's PEOPLE.

Insured by Smith and Wesson

I think bringing guns to a town hall meeting about health care makes no sense at all (unless you're on your way to Afghanistan or Iraq, or police duty, or something like that, and have no where to put your gun(s).).  The people bringing the guns, however, seem to do so to make a point about freedom–freedom for guns, I suppose.  But we were talking about health care, so I don't get it.  Despite the ravings of several enumerated lunatics, a system of universal health care derived from obligatory taxes is (1) clearly not unconstitutional and (2) it has nothing to do with guns (other than fixing the wounds caused by them).  Finally, few people want to argue with the guy with an assault rifle.  Maybe that's the point.  If it is, poo-poo on the gun toters for trying to intimidate people.    

Having said that, Now here's a crappy argument from E.J.Dionne against the bringing of guns:

The Obama White House purports to be open to the idea of guns outside the president's appearances. "There are laws that govern firearms that are done state or locally," Robert Gibbs, the White House spokesman, said on Tuesday. "Those laws don't change when the president comes to your state or locality."

Gibbs made you think of the old line about the liberal who is so open-minded he can't even take his own side in an argument.

What needs to be addressed is not the legal question but the message that the gun-toters are sending.

[For the record, I can't find the transcript of this remark, so I can't tell what question was asked]  Dionne mocks Gibbs' (political) answer in one paragraph, and then affirms it in the second one.  It's not a legal question, obviously; the people with the guns were not violating the law (it's up to local law enforcement to maintain order, etc.).  As another political matter, by the way, Gibbs knows (I guess) that had he said, "shame on the gun people," we would be talking about that, and not, for instance, health care.  I can think of an example of where someone said something about a white guy with a gun and our liberal media changed the subject from health care (any subject but that) to the white guy with a gun–care to guess what I'm talking about anyone?

Along those lines, Dionne wants to do the same thing:

On the contrary, violence and the threat of violence have always been used by those who wanted to bypass democratic procedures and the rule of law. Lynching was the act of those who refused to let the legal system do its work. Guns were used on election days in the Deep South during and after Reconstruction to intimidate black voters and take control of state governments.

Yes, I have raised the racial issue, and it is profoundly troubling that firearms should begin to appear with some frequency at a president's public events only now, when the president is black. Race is not the only thing at stake here, and I have no knowledge of the personal motivations of those carrying the weapons. But our country has a tortured history on these questions, and we need to be honest about it. Those with the guns should know what memories they are stirring.

I remember seeing a black guy with an AR-15 (that's an assault rifle of sorts).  Besides, I wouldn't expect someone inclined to bring a gun to a debate about health care had in mind the vaguely relevant question of civil rights.  As in the other case, this is not what it seems.

The gun guys and gals, I imagine, want to change the subject from the content of the debate inside of the hall, to the fact that someone had a gun outside of it.  They're as silly as the ravings of the "Obama wants to ration toilet paper set."  Let's ignore them.

Deny or disparage

This op-ed by John Mackey, CEO of whole foods, has caused somewhat of a stir.  A bunch of people decided to boycott his store (and use his website to do so).  I prefer the raw capitalism of buying from the actual grower–but I guess that makes me some kind of communist.  Anyway, this morning I ran across a couple of tepid defenses of Mackey's op-ed.  Here, Mary Schmich in the Chicago Tribune, and here the newly rejuvenated Kathleen Parker in the Washington Post.

Mackey lays out a series of proposals that address access to health insurance (but don't guarantee it); the only one aimed at reducing costs (aside from being healthy) is tort reform.  I think tort reform is a dubious strategy for a libertarian–if you have any rights at all, you have a right to sue people for contract breech or for failure to perform up to a certain standard.  There is empirical research of a kind on that point, however, which would at least address the question as to whether tort reform would have any effect on medical costs.  Once that question is resolved, however, one would have to balance one's right to sue an incompetent doctor against the communist benefits of lowering health care costs across the board.  

In addition to offering these and other points, he runs some counter arguments against "socialism."  Since no one is offering socialism, or even socialized medicine (if you don't know that, step away from the microphone at the town hall, go to the local library [for free!] and read some newspapers) I can hardly applaud his courage.  

He runs a version of the "rights" argument as well.  I don't know where people pick up these arguments, but it's really silly.  For some reason people have framed this discussion as one about rights–namely about the rights they're losing in having greater access to health care.  Perhaps this explains why people show up at town hall meetings with guns.  As Wyatt Cenac on the Daily Show indicated yesterday, that makes about as much sense as showing up drunk (which is another thing you have a right to do).

Here, in any case, is Mackey's right's argument:

Many promoters of health-care reform believe that people have an intrinsic ethical right to health care—to equal access to doctors, medicines and hospitals. While all of us empathize with those who are sick, how can we say that all people have more of an intrinsic right to health care than they have to food or shelter?

Health care is a service that we all need, but just like food and shelter it is best provided through voluntary and mutually beneficial market exchanges. A careful reading of both the Declaration of Independence and the Constitution will not reveal any intrinsic right to health care, food or shelter. That's because there isn't any. This "right" has never existed in America.

Even in countries like Canada and the U.K., there is no intrinsic right to health care. Rather, citizens in these countries are told by government bureaucrats what health-care treatments they are eligible to receive and when they can receive them. All countries with socialized medicine ration health care by forcing their citizens to wait in lines to receive scarce treatments.

The idea that the Constitution and the Declaration of Independence (again–not a ruling legal document!) enumerate all of our "intrinsic" rights is silly.  It's silly because, as people should never tire of pointing out, the Constitution, on a careful reading (slightly more careful than Mackey's) says:

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There you have it folks.  A careful reading of the Constitution shows that you may have more rights than the Constitution says.

One more obvious point.  I think no one could seriously argue that the Constitution contains all intrinsic rights, such that their not being mentioned (see above, 9th Amendment) is evidence of their not existing.  That would be circular!

Slippery McCoy

The very idea of hate crimes laws drives some people deeply into the forest of confusion, where they forget that speech and belief is punished all of the time, and that doing so is not some kind of violation of one's constitutional rights.  One's constitutional rights have some common sense limits: I cannot shout "fire" in a crowded theater, I cannot say (as someone once said to me–seriously) "I'm going to put a cap in your ass."  Unable to countenance such distinctions, Richard Cohen, some kind of liberal columnist for the Washington Post, writes an extremely confused op-ed wherein he rejects the entire idea of hate crimes legislation.  The whole piece hinges on the following snippet in the Senate discussion of hate crimes laws:

 "A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim . . . but frequently savages the community sharing the traits that caused the victim to be selected."

Let's do some googling before we read Cohen.  And when we do, we find that the passage he cites is not the definition of a hate crime, but rather a "finding."  Here is the definition:

the term “hate crime” has the meaning given such term in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994 note).

Ok, so now more googling:

(a) DEFINITION- In this section, `hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

Cohen ignores that–but refers instead to the "findings" of the new 2009 bill, and attacks that as if it were the very definition and sole motivation for their being hate crimes legislation.  That makes the rest of the argument a hollow man–in that he attacks an argument no actually makes.  He writes,

He [James von Brunn] also proves the stupidity of hate-crime laws. A prime justification for such laws is that some crimes really affect a class of people. The hate-crimes bill recently passed by the Senate puts it this way: "A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim . . . but frequently savages the community sharing the traits that caused the victim to be selected." No doubt. But how is this crime different from most other crimes? 

How is "pre-meditated murder" different from "unpremeditated murder"?  How is killing a police officer in the line of duty different from killing a rival mafioso?  Why is it especially heinous to commit offenses against children and the elderly?  Not all murders are the same, sometimes they have special conditions (premeditation), sometimes they have special victims (police, children, politicians).  None of this is unusual or strange.  

Cohen's argument stinks in other ways.  He alleges a slippery slope without attempting to establish it.

The real purpose of hate-crime laws is to reassure politically significant groups — blacks, Hispanics, Jews, gays, etc. — that someone cares about them and takes their fears seriously. That's nice. It does not change the fact, though, that what's being punished is thought or speech. Johns is dead no matter what von Brunn believes. The penalty for murder is severe, so it's not as if the crime is not being punished. The added "late hit" of a hate crime is without any real consequence, except as a precedent for the punishment of belief or speech. Slippery slopes are supposedly all around us, I know, but this one is the real McCoy. 

Criminal acts of speech, thought, expression (and even religion) get punished all of the time.  It's not that hard to draw relevant distinctions (there will certainly be hard cases, but that's what the judiciary is for).

This op-ed is too full of confusion for one post, so I'll stop with the following:

I doubt that any group of drunken toughs is going to hesitate in their pummeling of a gay individual or an African American or a Jew on account of it being a hate crime.

Um–I really doubt this, but it also seems irrelevant.