Dale Carpenter marks today’s big marriage equality news:
By a 2-1 vote, with Judge Jeffrey Sutton writing the opinion, the Sixth Circuit has upheld state prohibitions on same-sex marriages in the states of Ohio, Kentucky, Michigan, and Tennessee. Given that four other circuits have come out the other way, and that same-sex marriages are proceeding in 32 states, this is the case that produces the circuit split likely to be resolved by the Supreme Court. If petitions for certiorari are filed soon, as I expect they would be, we could still be on track for argument this Term and decision by the end of June 2015.
Lyle Denniston explains that the “challengers in the cases in the four states of the Sixth Circuit now have two legal options”:
Daniel McCarthy revisits the obscure legacy of James Burnham, an ex-Marxist and philosopher who was an important figure in the postwar conservative intellectual movement (e.g. he was one of William F. Buckley’s first hires at National Review). Calling Burnham the “American Machiavelli,” McCarthy details how he “broke with Trotsky, and with socialism itself, in the 1940s, and he sought a new theory to explain what was happening in the world”:
In FDR’s era, as now, there was a paradox: America was a capitalist country, yet capitalism under the New Deal no longer resembled what it had been in the 19th century. And socialism in the Soviet Union looked nothing at all like the dictatorship of the proletariat: just “dictatorship” would be closer to the mark. (If not quite a bull’s-eye, in Burnham’s view.)
Real power in America did not rest with the great capitalists of old, just as real power in the USSR did not lie with the workers. Burnham analyzed this reality, as well as the fascist system of Nazi Germany, and devised a theory of what he called the “managerial revolution.” Economic control, thus inevitably political control, in all these states lay in the hands of a new class of professional managers in business and government alike—engineers, technocrats, and planners rather than workers or owners.
The Managerial Revolution, the 1941 book in which Burnham laid out his theory, was a bestseller and critical success. It strongly influenced George Orwell, who adapted several of its ideas for his own even more famous work, 1984. Burnham described World War II as the first in a series of conflicts between managerial powers for control over three great industrial regions of the world—North America, Europe, and East Asia. The geographic scheme and condition of perpetual war are reflected in Orwell’s novel by the ceaseless struggles between Oceania (America with its Atlantic and Pacific outposts), Eurasia (Russian-dominated Europe), and Eastasia (the Orient). The Managerial Revolution itself appears in 1984 as Emmanuel Goldstein’s forbidden book The Theory and Practice of Oligarchical Collectivism.
Despite how closely Burnham is associated with the Cold War, McCarthy asserts his continued relevance:
The first thing that strikes me about the Alyssa Rosenberg quote is its breathtaking self-centeredness: “How much does masculine culture depend on women and femininity as a reference point?” This reminds me of the conversation that every straight guy has had with their female significant other. I call it the “You don’t have to pretend with me” talk.
Every time we straight guys talk about something we like (sports, metal music, violent video games, scotch whisky, etc.) we get the same response. “There are no guys around. You don’t have to pretend to like that stuff with me. Just be yourself!” What’s bizarre is that there is absolutely no acknowledgment that the stereotypical masculine stuff is stuff that we actually like. I like hockey fights. I like listening to Tool. I like GTA V. I like Lagavulin. Really, I do!
This is what drives me crazy about the contemporary liberal view that masculinity is nothing more than a social construct that can, with willpower, be overcome. All the things that make me a man, things that I enjoy, are apparently just externally forced cultural norms that I am too dumb and weak to transcend.
Masculinity has nothing to do with denigrating women. Period. There is no greater exemplar of modern masculinity than the character of Ron Swanson … can you imagine him denigrating women?
Many more readers chime in:
OK, straight male responding as requested! First, I will state one thing unequivocally. Masculine culture (however you want define it) is NOT under any kind of threat. This notion is as ridiculous as the idea that suddenly Sharia Law is going to take over the American judicial system.
It appears that Republicans will have a net gain of between 300 and 350 seats and control over 4,100 of the nation’s 7,383 legislative seats. That is their highest number of legislators since 1920. Republicans gained seats in every region of the country and in all but about a dozen legislative chambers that were up this year.
Libby Nelson recognizes the importance of these wins:
Republicans now control state government outright in at least 24 states, one more than they did before the election. They control at least 66 of 99 state legislative chambers nationwide. And they cut the number of states with total Democratic control from 14 to seven — the lowest number since the Civil War. …
With a Republican Senate likely to give Obama problems in the realm of judicial appointments, Jonathan Ladd bets Justices Ginsburg and Breyer are having second thoughts about holding off on retirement:
[T]o find a situation as favorable for replacing Breyer and Ginsburg with liberals as 2013-14 was, we have to wait for the next time Democrats control both the Presidency and the Senate. Because presidential elections are so influenced by short term economic swings, the results in 2016 (and all future elections) are very uncertain. And with the Republicans’ new 54 seat Senate majority, party control of the Senate after 2016 is up for grabs as well. Considered together, the joint probability of Democrats controlling both the Senate and the Presidency after 2016 is only modest. The likelihood of a big fight over a Supreme Court nominee in the next decade between a president and Senate of different parties, resulting in one or more nominees being rejected and possibly a seat being vacant for an extended period of time, is reasonably high and just got higher.
Noah Feldman considers who Obama might nominate if a seat on the court opens up in the next two years:
To be confirmed by a Republican Senate, the nominee would have to be at least a credible centrist — more in the model of Sandra Day O’Connor or Kennedy then Ginsburg or Breyer.
Jesse Singal, regretting how he’d never challenged a “borderline-compulsive” street harasser he once knew, spoke with Hollaback’s Debjani Roy in an attempt to better prepare himself for such interventions in the future:
[A]m I overestimating the impact one disapproving conversation can have? Probably not, said Roy. [This serial harasser] Harry had probably, like many young men, been in a lot of social situations in which street harassment wasn’t looked down upon and may have been actively encouraged. “We all know about peer pressure,” said Roy. “And I think a lot of the original behavior comes out of that. Like, ‘Dude, why aren’t you hitting on her? Dude, why aren’t you trying to pick up more women? Why aren’t you yelling that at her?’” Having another guy come up and say exactly the opposite, then, can make an impact — even if it’s not guaranteed to.
Singal adds that even just commiserating with or checking on the harassed woman afterwards can be a beneficial way to get involved. He concludes:
What all this comes down to is that, in much the same way that harassing is a socially ingrained part of Harry’s life, not responding to “mild” incidents of harassment is a socially ingrained part of mine. For whatever reason, I and a lot of other otherwise “good guys” have succumbed to the notion that it’s best to just stay out of these situations rather than intervene.
A reader shares his own missed opportunity:
Many years ago when I was in my early 20s and living in Boston, I was on the T late at night and saw this middle-aged Hispanic man harassing a young black woman clearly unappreciative of his advances.
On the whole, I found the president’s presser yesterday reassuring. First off, it upset Ron Fournier and the usual Washington establishment types, which is a good sign. Second, his very affect – calm, upbeat, confident – is classic Obama. Third, his basic stance of asking the GOP to put up or shut up now they have majorities in both Senate and House is exactly the right move. It forces some kind of constructive proposal out of them and puts the onus on them to say – at long last – what they might be for instead of whom they are against. Or, more likely, it reveals the emptiness of their opposition and lack of a constructive policy agenda.
But it seems to me that this effective strategy is immediately undermined by his continuing to threaten unilateral executive action on immigration. The threat makes sense as a way to bring the GOP to the table, but not if he fully intends to follow through before the end of the year regardless. Instead of forcing the GOP to come up with a compromise bill – which if it can, great, and if it cannot, will split the GOP in two – he’d merely recast the debate around whether he is a “lawless dictator”, etc etc. rather than whether it is humane or rational to keep millions of people in illegal limbo indefinitely. It would strengthen those dead-ender factions in the House that are looking for an excuse to impeach. It would unify the GOP on an issue where it is, in fact, deeply divided. And it would not guarantee a real or durable solution to the clusterfuck.
Yes, he’s out on a limb with his supporters on this – and they punished him for it with low turnout on Tuesday. But he punted before the election and he could punt again. And the truth is: no real progress on this can be made without legislation, and the looming demographic challenges for the GOP in 2016 without any action on the issue makes some movement on this a sane move in the next six months, especially from the point of view of the donor class and business lobby.
Alabama’s Amendment 1, drafted by a lawyer who fears the non-existent problem of American courts applying Sharia law, passed on Tuesday with 72 percent of the vote. The amendment to the state constitution declares that Alabama courts “shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States”. Many reports on the amendment (like the preceding link) claim that it bans the application of foreign law altogether, but Eugene Volokh disputes that:
Normal American “choice of law” principles often call for the application of foreign law in cases that involve foreign transactions, for instance in some tort cases arising from injuries in foreign countries, determining the family status of people who were married or adopted children in foreign countries, and more. American courts wouldn’t enforce foreign rules that violate Americans’ free speech rights, equal protection rights, and so on; but in the great bulk of cases in which foreign law would be applied, there would be no such constitutional problem. The Alabama amendment wouldn’t bar use of foreign law in such cases.
What it would do is less clear, Paul Horwitz explains, because the prohibition on applying foreign laws that contradict Americans’ constitutional rights is, er, “already the law in every state, including Alabama”. The redundant amendment, Horwitz argues, is a waste of time and money that will likely have unintended consequences and serves only as a gesture of hostility toward Islam:
