A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.



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The Cyberpamphlet

I've finally started reading Bernard Bailyn's The Ideological Origins of the American Revolution. Near the beginning he quotes George Orwell on the characteristics of pamphlets, which is the form of publishing through which the ideology of the American revolution was primarily developed:

The pamphlet is a one-man show. One has complete freedom of expression, including, if one chooses, the freedom to be scurrilous, abusive, and seditious; or, on the other hand, to be more detailed, serious and "high-brow" than is ever possible in a newspaper or in most kinds of periodicals. At the same time, since the pamphlet is always short and unbound, it can be produced much more quickly than a book, and in principle, at any rate, can reach a bigger public. Above all, the pamphlet does not have to follow any prescribed pattern. It can be in prose or in verse, it can consist largely of maps or statistics or quotations, it can take the form of a story, a fable, a letter, an essay, a dialogue, or a piece of "reportage." All that is required of it is that it shall be topical, polemical, and short.

(Bailyn, p.2.) What leaped out at me immediately, of course, is how absolutely perfectly this description applies to blog posts. And then in a footnote, Bailyn further notes that Orwell's enthusiasm for pamphlets was

sparked by his belief that in twentieth-century society the press does not adequately represent all shades of opinion. "At any given moment there is a sort of all-prevailing orthodoxy, a general tacit agreement not to discuss some large and uncomfortable fact." He looked back to the days of vigorous, highly individualistic pamphleteering with nostalgia, and hoped that people "would once again become aware of the possibilities of the pamphlet as a method of influencing opinion, and as a literary form.

If only Orwell had lived to see the advent of the blog.

This parallel (which I'm sure I'm not the first to note) gave immediate rise to two thoughts. First, those who sniff that journalism and political editorializing ought to take place only under the auspices of established organizations with editors are either ignorant of American history or hostile to the most fundamental tradition underlying American independence. The second is that I am worried for the historians of the future. While the internet makes it possible to write a pamphlet that can be read instantly across the world, it does nothing to ensure (or even render likely) that the contents of that pamphlet will still be around in legible form in 200 years for some future Professor Bailyn to read in seeking to understand how this historical period was understood by those who lived and shaped it. Scripta just don't manent the way they used to. And given the centrality of linking to blog posts, you can't even really save this medium by printing out and archiving. Each post is the beginning of a potentially limitless chain of cross reference. Not that all blog posts are intrinsically worth saving for posterity, mind you. Not by a long shot. But to whatever extent we think it desirable to preserve the mind of this age for perusal by the future, the impermanence of the medium should concern us. What's needed is a sort of permanent Google cache. Is anyone out there keeping one?

posted by CMN at 2:47 PM
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Here's a blog that's definitely worth checking out if you're interested in the state of the Italian political atmosphere. It's called Cose Turche. How this guy finds time to post in two languages I don't know. I barely ever post anything in one. Anyway, check it out.
posted by CMN at 11:22 PM
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Rips
So Paola and I went to see Intolerable Cruelty. I went despite some misgivings, mainly because it was by the Coen Brothers. Well, they've squandered that trust. Next time I won't go unless I have good reason to think it will be worth it. This wasn't. Cathy ZJ is nice to look at, but that only gets you so far.

As a lawyer, I can't help but be amused by the talismanic significance accorded to pieces of paper in movies like this. One rip, and the legal universe shifts around you. As though the signed piece of paper were actually the contract itself in some metaphysical sense, rather than merely evidence that a binding agreement had been entered into. As though there wouldn't be other copies of it on file in the offices of the lawyers for both sides. I can just imagine going into court and arguing, "Well yes there was a contract, but you see my client ripped up his copy so it's not binding anymore."

That's one of the reasons it sucks being a lawyer. You can't help thinking about stuff like that when you're supposed to be just watching the movie.

posted by CMN at 7:43 PM
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And I thought conservatives were supposed to favor freedom of contract.

Interesting piece by Frum on the WSJ opinion page the other day, taking up Sullivan's gauntlet to justify conservative opposition to same sex marriage. I believe the following accurately renders the logical structure of Frum's argument:

1) Our primary consideration in making laws governing marriage should be to make it more likely that children will be born into households stable enough to nurture them to adulthood.

2) The system most likely to attain this result is one in which the marriage state is a bright-line institution involving long-term commitment that you are either in, and therefore entitled to the benefits and protections thereof, or not in, and therefore not so entitled or protected. This way men and women know exactly where they stand, and women will not be misled into thinking they are in the kind of relationship that makes it safe for them to have children when they are not.

3) To the extent that society allows options deviating from this, such as civil partnership states entailing varying degrees of commitment, responsibility, and joint ownership, people who are not "the rich and the smart" will be confused and misled, and will be more likely to give birth to children in unstable relationships.

4) Many advocates of same sex marriage agree with all the above points, and therefore want a bright-line marriage institution with gay marriage included, rather than a proliferation of civil partnership institutions.

5) As a matter of political reality however, the policy described in 4) will never be enacted in any state where significant influence is exerted by religious organizations for whom the term "marriage" denotes a sacrament from which same sex couples are excluded.

6) Therefore, the drive to legally sanction same-sex marriage will necessarily lead to the proliferation described in 3).

7) Therefore, allowing same-sex marriage is undesirable.

Hmmmm.

A few observations.

The first thing that leaps out at me is Frum's effective concession that there's really no reason why it would be unworkable or pernicious to allow gay marriage on exactly the same bright-line terms as straight marriage. His argument hinges on the premise that religious people will never allow this—which is kind of like arguing against desegregation back in 1955 on the ground that southern white society would never allow it. The point has validity as a description of the political obstacles to implementation of the principle, but absolutely no relevance to the validity of the principle itself. He's not saying gay marriage is a bad idea, he's saying it's a good idea that will never be accepted whole, and whose partial implementation is worse than the status quo. At least, that's the way he's framed his argument.

Which implies that the real question here is why a religious objection to the contours of a civil institution should carry so much weight. I've never quite understood this. The sacrament of marriage from a religious standpoint and the civil institution of marriage from a legal standpoint are two different animals that serve different, though congruent, purposes. Civil marriage is a means of instituting certain arrangments of property rights and legal responsibilies that facilitate and protect the rearing of children. Religious marriage is an institution that tries to situate the spousal-parental relationship in a moral, social, and spiritual framework that will hopefully make it more resilient and fulfilling. To people who really believe in the latter institution, it forms the primary definition of their relationship, and whatever legal consequences also follow from it are ancillary, just as their belief that it's wrong to kill may also be reflected in, but does not depend on, laws against murder. So I simply don't understand how the Christian sacrament of marriage is threatened in any way by the civil institution of marriage being open to people who would not be eligible for that sacrament, any more than it is threatened by people of other faiths--or atheists--being allowed to participate. There is no full faith and credit clause between church and state.

So Frum's reasoning really leads to the conclusion that people like Sullivan need to keep hammering away at the intellectual and moral underpinnings of religious opposition to same-sex marriage. Because the main problem here is their unjustified—and apparently unjustifiable, if Frum's argument is all we have to go on—desire to exclude from a key institution people who believe in it as much as they do. In other words, point 7) is a non-sequitur, unless you assume the state of affairs described in point 5) to be immutable.

But my real argument with Frum goes way beyond that. It's about points 2) and 3). What we have here is a conservative arguing that when it comes to the most crucial transaction any of us will enter into, we need government to dictate the terms to us in a one-size-fits-all form contract that people must either take or leave. Because otherwise, you see, poor and dumb people will be misled. If that's true of marriage, why isn't it true of employment contracts, consumer loans, property sales, and any other transaction you can think of? I know; lots of people think it is. Funny though, I always thought "we must restrict choice to protect poor and dumb people from their poorness and dumbness" was the default lefty position. Go figure. Marriage already isn't a one-size-fits-all institution, because divorce, alimony, and child support laws differ from state to state, and you have no way to be sure ex ante which state's law will wind up governing yours. And the costs of making imprudent choices in this regard are already externalized to a large extent by the existence of welfare and child support laws. If you really wanted to make bright-line marriage serve the role Frum imagines, shouldn't you really go whole hog and make sure there is no welfare or child support for children born out of wedlock? While you're at it, shouldn't you also outlaw divorce?

Given that the bag is a distant memory in the mind of that cat, why not embrace freedom of contract and make it a vehicle for making people more conscious of the choices they're making? Why wouldn't it be salutary for couples contemplating one of these relationships to actually have to think about what sorts of legal obligations to each other they intend--or don't intend--for it to include? Forget prenups--I think it should be the norm that people draft their own nups. I know it seems terribly cold to think of getting married like negotiating a contract, but it is that whether we like it or not. Marriages break up and people come to resent each other often because they find out way down the line that they have different understandings as to what they thought their contribution was supposed to be and what they were supposed to be able to expect in return. Actually having to talk about these things and put them down in writing from the beginning might prevent some people from getting married who shouldn't, and it might also provide a basis for better communication down the road as people find their needs and expectations to be evolving. Would this deromanticize marriage? I don't see why. To a marriage of true minds, a meeting of the minds should be no impediment.

posted by CMN at 4:29 PM
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This hilarious recounting of a recent Supreme Court argument reminds of something I've thought for a long time. No, not that the 9th Circuit is wacky. I actually think its wackiness is largely overstated. It's that the "reasonableness" of a search should be decided by a jury. It's precisely the kind of context specific, sensibility-of-the-community kind of question that juries are supposed to decide. When courts decide these things they have to worry about precedential value, which leads to either an absurdity like the "leave in conditioner" rule, or (more often) a rule that is so deferential to cops it has hardly any teeth at all. In reality things are more nuanced, and juries are the ones who should be supervising whether their public servants are striking the right balance between respecting their rights and protecting them from crime.

Of course, it couldn't be the same jury that was supposed to try the case. What we should have is an evidence jury, drawn from the community in which the search took place. It gets presented with evidence as to the circumstances in which the search took place, what the cops knew before they performed it, and how they went about doing so. It does NOT get told what the cops found, or what the defendant is being charged with. The evidence jury decides whether, under all the circumstances, what the cops did was "reasonable." Then based on that the court excludes or admits the evidence, and off we go to the other jury who will try the merits.

The main objection I can see to this proposal is that it doesn't give the cops sufficient guidance as to what they can or can't do. I don't know. I suspect that the cops serving a particular community will get a sense as to the kinds of things those people consider "exigent" and the kinds of intrusions they consider unwarranted. They'll also have a strong incentive to build up the trust of the people in that community, so that their actions will be given more benefit of the doubt. And if a certain community tends to think you should need someone screaming bloody murder before the cops can bust a door in, then that's the standard the cops will be held to. Of course, the result of all this is that the goals and methods of law enforcement would have to be more attuned to the priorities of the community than those of the state. When it comes to the investigation of victimless crimes for example, juries would presumably tolerate less intrusion than they will when someone is in danger. So the community's view as to the importance of a particular law will affect the amount of leeway police have in enforcing it. Personally, I regard that as a good thing.
posted by CMN at 2:29 PM
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