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July 10, 2003

The liberty to define one's

The liberty to define one's self:

As Prof. Cass Sunstein pointed out in a recent brown-bag lunch at the law school, Lawrence v. TX (so much more than just the sodomy case) is about a general right to define one's own identity, and sexuality is one of the key ways in which we define ourselves. Other key ways -- religion, race/ethnicity -- are protected explicitly by the 1st and 14th Amendments (although I wonder how far the protection of the latter stretches under a race-blind interpretation).

One source of identity not discussed was bodily integrity, or wholeness. For instance, and perhaps it's just the convention of the form, but note that many personal ads are fronted with a description of appearance -- white, female, brunette, hazel eyes, 5'5".... It's not superficial to say that our bodies are a source of our identities, even yielding those famed Napoleonic complexes. This idea of bodily identity is present in a recent Slate article, Costing an Arm and a Leg, about people who identify themselves strongly enough with amputees that they seek amputations themselves, and in a spring Wilson Quartely piece, "What's Natural", which seeks a logical principle behind determinations of what medical procedures insurers should be required to cover.

Bodily identity lurks behind the some of the most contentious topics in the medical necessity debates: personal appearance (ie, attractiveness), the coverage of expenses for "abortion, breast reconstruction after a mastectomy, and treatment with Viagra", the non-coverage of "contraception for fertile couples, in vitro fertilization for infertile couples, and wigs for alopecia patients".

What’s notable about so many of these battles waged on the borders of medical necessity is that they have to do with matters of sexual attractiveness or ability. Why is that? Perhaps it’s because, as Sigmund Freud famously observed, we’re creatures who work and love. What’s medically necessary for work is now taken care of by workers’ compensation and workplace disability laws (which have generated their own prodigious debates). Now that the workplace has been attended to, love has become the frontier where the fiercest contention occurs over the meanings of medical and necessity. (Stark, WQ)

Even if a right to bodily integrity could be found within the scope of Justice Kennedy's expansive opinion, the Constitution still doesn't mandate that insurers pay for these debated procedures (the right to have a third party pay to create or restore one to a bodily norm! come now, surely substantive due process doesn't stretch so far). However, such a finding might prompt state legislature to mandate that insures cover procedures seen as part of bodily integrity or as restoring someone to a societal or personal norm. Stark gives the examples of two cases where the insurance agency tried to avoid covering costs by calling the conditions "cosmetic" -- a boy who sought reconstructive surgery after a skiing accident left scarred his face, and a girl who sought removal of a large port-wine stain covering much of her torso. Perhaps the first or both would be covered under a 'bodily integrity-sensitive' (for wont of a better term) legislation. It seems likely, with the advances in medical technology and possible shift to a more nationalized health care, that this will become future grounds on the sexual/personal liberty battle (and more interesting, too, than whether there's liberty to marry a cousin).


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Nate Oman discusses legitimacy, and

Nate Oman discusses legitimacy, and particularly Coke's theory of history providing legitimacy over at A Good Oman:

However, I think that there is a deeper point to Coke's theory. One can argue that the consent created by the institutions of democracy – voting, legislation, etc. – is actually a thin and episodic kind of consent. It depends on the vagaries of shifting coalitions, the manipulation of decision procedures, and the swirls of momentary public opinion. In contrast, a Cokian consent rests on a much thicker notion of ratification, one that can only exist when practices prove themselves over long periods of time and across many subcommunities. Rather than conceptualizing consent in formalistic terms, the Cokian position looks to thick reality of social practice.

This raises an interesting question: take the US (or Canadian, if you prefer) Constitution. It came into effect two centuries ago, without what we would now consider to be fundamental democratic approval (i.e. referendum), but instead by government action. It was not the people themselves who brought the fundamental organic documents into being and ratified them, but instead their representatives.

The claim to democratic legitimacy is hurt even further by the fact that no one still living had the choice to submit to this regime: citizens have never had the opportunity to state their approval (or disapproval). Instead, the legitimacy of the presently-existing political schema is only rarely questioned.

If democratic legitimacy (as expressed by an informed decision of the population) is required in order for political institutions to be legitimate, then the existing political structure in much of the world is, by definition, illegitimate.

What conditions are necessary for an institution to have legitimacy --- the general non-dissent of the population; a formal act of acceptance by the population; mere history?


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Moving up in the World:

Moving up in the World:

Hurrah! Howard Bashman has moved up us higher in his blogroll. Now we are an "especially appealling blog."


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Comments on Romance: My friend

Comments on Romance:

My friend Mustafa Hirji comments in email, on non-selection (among other things):

Non-romantic selection requires submission of an application by a certain date e.g. job application deadline, college admission deadline, etc. The application deadline is shortly followed by the selection. If you don't apply by the deadline, you've been effectively rejected (I'll explain in a moment why this isn't non-selection in the same sense as in a romantic selection). In the case of college, you could, perhaps, apply a year later, but this is rare--usually you apply when you've finished an earlier phase of education and you want to start another. Few tend to apply year after year. This rare case is the only true non-selection for non-romantic cases.

In a romantic selection, application is effective the minute you become aware of the object of affection (meeting her is obviously not necessary). But unlike with non-romantic selection, the selection has no time limit so hope (the determinacy of indeterminacy?) endures indefinitely.

Non-selection isn't any specific moment they way rejection is; it is the slow eroding away of hope (If the girl chooses to date someone else or get married, you either take it as rejection, or the chance of a break-up sustains hope.). Not applying for a job or college is different in that the opportunity has ended--the moment the deadline arrives, you've been effectively rejected.

Because for non-romantic selection there's a deadline, it is a desperation move to apply--it is the only way to avoid effective rejection. Non-romantic non-selection is rejection where you don't make the last ditch effort. Romantic non-selection isn't a desperation move to avoid rejection but an enduring of hope, so it is conceptually very
different from rejection.

In non-romantic selection, the choice is simple: rejection, or the chance of selection. In romantic selection, you have the option of maybe getting a "soft-landing" with a non-selection.


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Logical Positivism: Here's A.J. Ayer,

Logical Positivism:

Here's A.J. Ayer, on the existence of supernatural beings (from The Meaning of Life, Weidenfield & Nicholson Ltd.):

Suppose I say "There's a 'Drogulus' over there," and you say, "What?" and I say "Drogulus" and you say "What's a drogulus?" Well, I say, "I can't describe what a drogulus is, because it's not the sort of thing you can see or touch, it has no physical effects of any kind, but it's a disembodied being." And you say, "Well how am I to tell if it's there or not?" and I say "There's no way of telling. Everything's just the same is it's there or it's not there. But the fact is it's there. There's a drogulus there standing just behind you, spiritually behind you." Does that make sense?

Extension of this principle to various religious beliefs and acts of faith is left as an exercise to the reader.


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Talking About Abortion: The Senate

Talking About Abortion:

The Senate has just voted in an amendment to a foreign aid bill that would lift the "global gag rule". The global gag rule is a rule that those places receiving our health care funds can't also engage in abortion provision or even counseling. Jacob Levy (and here) has discussed things like this before, and I have nothing to say other than "yay." (And to note that Bush threatens to veto the bill. Will he really? I don't know.)

But far more importantly, a federal judge in Louisiana has struck down (for the second time) a license plate as unconstitutional. The license plate is one of those plates that has a message that you can pay extra for, like the ones that read "Kids first," or "I support unions." It's an anti-abortion license plate. I blogged in February about the same thing in South Carolina (my archives are missing so I can't link to the post at the moment), and argued that the "Stop abortions," or "choose life" plates can't be any more unconstitutional than the "stop terrorism," or "Kids first" license plates. The Louisiana Judge disagreed in 2000 and struck down the "choose life" license plates, but the court of appeals overruled him.

Aha, the plaintiffs said, you're right! If the "choose life" license plate is unconstitutional, then the "stop terrorism" license plate is unconstitutional. So now they've challenged the state's license plate program altogether, on the grounds that it is a public forum that engages in unconstitutional viewpoint discrimination.

Oddly enough, this strikes me as a much stronger case. I think the Supreme Court has only dealt with license plates once before (I have no idea what 5th circuit law is on license plates) in a case called Wooley v. Maynard that held that New Hampshire citizens could cover up the "life free or die" motto on the NH plate. This case is very important here because it held (wrongly, IMHO) that a license plate was the speech of the driver (or car owner, or something), and not the speech of the government. By implication, therefore, the government's license plates here are the speech of the drivers and might very well constitute a public forum. (Which is not to say that the court isn't free to repudiate Wooley v. Maynard. Heck, the court can repudiate whatever it wants. And it does.)

Now Judge Duval wrote:

If the state built a convention hall for speech and then only allowed people to speak with whom they agreed with their message, the state's actions would be in ocntravention of the First Amendment . . . there is no significant difference in the case before the court."

Firstly, let me note the irony of a system of law that can hold that things like the global gag rule clearly don't constitute an abridgement of free speech, but that could seriously consider license plates to be one. But then let's ask, is Duval's analogy appropriate?

Has the state built a convention hall for speech? No, not really. It has, instead, picked some messages that it wishes to promote, made little signs (called license plates) and allowed people who wish to put those signs on the cars, and people who would rather not to put other, plainer signs on their cars. Is it an "abridgement of free speech" not to have a neutral rule for making signs?

Plaintiffs suggest that Louisiana should have to have a neutral rule for picking license-plate-messages (anything enough people request), but I wonder if they really mean that. Do they (and Duval) seriously suggest that if Louisiana allows people to pay to have "Kids first," on a license plate, it must also be willing to let people pay for a "f*ck you" license plate? (Let's face it, the messages that a lot of people want on their cars may well be things like that).

This has always struck me as a problem with the public-forum doctrine. Plaintiffs allege that Louisiana has created a forum for people to freely express their opinions, and then limited it to certain viewpoints. Louisiana replies that it hasn't created such a forum at all, but has instead chosen some viewpoints and chosen to promote them. States can speak too. Oddly, both have support in the caselaw (Rust v. Sullivan runs alongside Legal Services v. Velasquez), and the whole thing turns on . . . on what?

I suppose it depends on whether the state is letting people voluntarily express certain feelins on their license plates (within limits), or whether it is picking a few messages of its own and forcing people to promote these messages or none on its plates. Oddly enough, the latter would be constitutional, and the former, un-.

And incidentally, does anybody have constitutional or political views on this issue that differ from his/her views on abortion? That is, does anybody oppose abortion but still think the state shouldn't (or can't) make one-sided license plates on the issue? Does anybody support abortion but have no complaint with the state taking the opposite side? If you fall into either category, please let me know.


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Domain of extraordinary gentlemen: One

Domain of extraordinary gentlemen:

One point that Lawrence Lessig often harps on is that people today just don't get the public domain. It's not part of our consciousness, simply because it's so old. And because it's not part of our consciousness, we don't usually think about how it is such a vital resource for generating new cultural materials--and how, were it to be broadened, it would serve this purpose even better. Which is why posts like this are so refreshing to see--big, prominent, relevant examples of the power of the public domain.

I've personally been rather excited to see The League of Extraordinary Gentlemen. Seems like a fun film, and I read good advance reviews. But I didn't realize this key point, which was pointed out to Lessig by someone named Eric Hughes: all of the characters in LXG are in the public domain. Lessig's challenge to those who would push for perpetual IP protection:

Do you think there would be more of these works if there were a gaggle of rights holders to clear permissions with?
The reweaving of cultural threads into new patterns is a large part of how culture stays vibrant and alive. For quite some time, storytelling was all about throwing together bits and pieces from established myths; if you look closely at all the tried-and-true plot elements in the Harry Potter books, you can see the degree to which this is still true. Imagine all the stories that could be told if the public domain weren't quite so old and musty.

If you haven't yet, please do check out the Eric Eldred Act homepage, and consider signing the petition in support of this proposed law, which would require copyright owners to pay a nominal (ie, $1) registration fee fifty years after the creation of their work in order to maintain copyright protection; if the work isn't worth the fee to the author, it would then pass into the public domain. Given how few works retain commercial value fifty years after creation, this would result in erasing a great deal of the damage of the Sonny Bono Copyright Extension Act, without hurting those who still derive income from their works. Nearly Pareto-efficient.


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Comments?: With our new template

Comments?:

With our new template dawning soon, there has been some talk about whether to add comments to our blog. (For an example of what that would entail consider Matthew Yglesias's blog.) Now I'm currently against them, but several of our bloggers are in favor of them. This isn't a total democracy but nor is it a dictatorship. So I'm curious to see if any readers have strong and/or reasoned opinions on whether or not they're a good idea.

My tentative thoughts are that they are bad for several reasons:

1: They clutter up the blog with a lot of different voices. This can be particularly the case on a fairly extensive group-blog like this one.

2: They discourage blog-related links and emails, since people who have comments or counter-arguments can simply stick them in a comment rather than blogging back or writing an email. For those who prefer emails and links, this is a bad thing.

3: They can be abused. Because comments are sometimes uneditable and often unverifiable, people can post as each other and post all sorts of inane and stupid things. Of course, this is the internet and people can do that anyway, but I find it less vexing when it's not happening under my (shared) banner.

4: For those (like myself) who feel compelled to counter reasonable counter-arguments, comments can create a whole lot of work. For some reason not entirely clear to me, people are much more willing to publish repetitive or incomprehensible remarks in "comments" than in emails or blogs. This forces conscientious bloggers to try to decipher them.

5: They can look lonely. A post with no comments at all looks so . . . silly.

6: On a self-referential group-blog like this one comments can get particularly dizzying for the bloggers; if somebody has commented a response to a blog post, when does a counter-response merit a counter-comment and when does it merit a post of its own?

7: They make the blog much harder to fully read, especially on a slow computer. No longer can you simply scroll down post after post looking for something interesting, or reading everything. Instead you have to click at the base of each post to see if anybody has tucked a hidden gem. If bloggers are commenting on one another's posts (see 6) this can get worse.

A "Comments" function turns a blog into a message board. This isn't necessarily a bad thing, and it's particularly warranted, I think in certain circumstances, such as on vast impersonal publications (like the New York Times or Slate), on popular single-person blogs (like Yglesias), and on blogs that occupy a particular . . . niche (like the Hoosier Review or Crooked Timber) they make quite a bit of sense. And it's also true that because they make it easier to comment on a post, they may increase the total amount of dialogue, even if they shift it from links and emails into javascript. Finally, there is the all important empirical argument that comments increase traffic.

I have no idea if this is the case. Certainly it seems that one of the draw of Matthew Yglesias's blog is the pitched debate that often rages in his comments section. On the other hand, Matthew Yglesias's blog is much different from ours in a number of ways, and I confess I often can't make it through the comments on his posts, even at times like now when the posts are few and far between. Maybe I miss a lot of great stuff. I really don't know. But the standards people employ for posting on message-boards seem fairly low.

My personal feeling is that comments don't add anything to the blog that can't be achieved with technorati. But if you have feelings either way, please let me know, and let me know any reasons you might have.


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Nubility: Why didn't somebody tell

Nubility:

Why didn't somebody tell me that the 2002 Beaujolais (even when not quite so nouveau)is so yummy?

And why do I feel okay using the word "yummy" to describe delicious wines but not other delicious things?


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