Brutus's Bath

Some of the people doing the Caesar's Bath meme seem to have misinterpreted it as "list five things your friends love that you really don't," rather than following the "Nice. Nice. Not thrilling... but nice" concept of five things that you kinda like but don't get the hype. A. Rickey rants against the fear of theocracy instead of giving it an "eh," and Fitz-Hume outright hates on raw fish and Closer (though found the same thing to enjoy in it as I).

Since I didn't take that meme as an opportunity to complain about something, I will take it now:

1) Leaving inedible stuff in prepared food. Fitz-Hume just posted two recipes for trout (one grilled, one fried) that both sound delicious except for one problem: he recommends that one have the fish "cleaned and gutted, heads and tails left on." This was how I kept getting my fish in Europe, and how one of my tablemates at a Greek restaurant -- I went to midnight mass and dinner afterwards for Greek Orthodox Easter with my roommate -- had his. When I expressed a little surprise at seeing it served that way, he said, "Of course, how else?"

Um, without the fish's looking at you? I have no trouble acknowledging that as a meat-eater, I am eating a once-conscious animal, but why do people like to keep the unpleasant looking head and tail and the annoying bones? In Milan last year, despite feeling very childish for doing it, I would send back fish that still had the bones with the request that they be removed; the alternative was to be rude to my companions by picking inopportune little bones out of my mouth.

2) McConnell's article on how non-segregated public schools are compatible with an originalist understanding of the 14th Amendment. Notwithstanding Randy Barnett's and Will Baude's enthusiasm, I am skeptical, though I have no objection to the latter's description of it as "breathtaking"; lesser law nerds such as myself are the more fortunate for having hardcore folks like Will to point this stuff out.

I will read the whole article and blog about it at De Novo in the near future, but for the present content myself with noting one fundamental disagreement I am likely to have with it. "More importantly, since the Fourteenth Amendment did not apply to congressional legislation, senators were free to vote in accordance with their assessments of practical impact (and even according to their personal preferences about the schools their children attended) rather than according to the perceived dictates of the Constitution."

I find it hard to believe that Congressmen who passed the Fourteenth Amendment with the intent of its forbidding school segregation everywhere -- rather than with the desire to keep Southerners from enacting measures that would be unacceptable in other parts of the country -- would then decide that segregation in the schools they themselves controlled, i.e. those of the District of Columbia, was fine. Surely if one truly thought that school segregation ought to be forbidden, with no deliberate speed about it, when one voted for the 14th, one should have retained that thought when the time came to vote on de-segregating D.C.'s schools. If the Senators' personal preference for their own children was that they be kept separate from children of color, I doubt that they had a real faith in the spirit of the 14th Amendment as forbidding racial distinction. In light of the triumphalist attitudes among many Republican Northern congressmen at the end of the Civil War and through Reconstruction, I'd be very concerned that they might have wanted to push requirements onto the defeated Southerners that they themselves would have shunned.

Yes, I realize I sound like a Stars'n'Bars waving Southerner with this less-than-reverent attitude toward Yankee politicians, but Reg State has made me cynical and having Gone with the Wind as my Civil War primer has made me stupid. In contrast, McConnell states at the outset,

For these purposes there is no need to plumb the inner feelings, motivations, or private opinions of the participants in the controversy over the 1875 Act - to separate sincerity from hypocrisy, political calculation from principle, or ambivalence from conviction. Other studies of the period have emphasized the sociological and political context. Constitutional interpretation by its nature depends on public statements and public acts. An argument made on the floor of Congress, even if insincere, tells us something about the speaker's judgment of his audience: what arguments the speaker thought were likely to persuade. I do not doubt that many of the proponents of strong civil rights measures in Congress entertained misgivings in private and had mixed motives for their actions. But what matters is their public position on what the Constitution means. This is a study of the legal thinking of the antagonists in the debate, and for this purpose it is necessary to take their arguments seriously on their own terms.

Right, except someone who knows that Charles Sumner is listening and the press is taking notes may be disinclined to say honestly, "I don't mind making those damn rebs send their children to school with negroes, but I don't want the same for mine." This is one of the obvious troubles with originalism, insofar as what people meant for a text to mean can be even more difficult than figuring out what a Plain Reading of the text means.

Then again, I wrote my personal statement for law school in part about how racism can manifest differently between North and South (which may have quoted Tim Wise: "Let me get this straight: if three white guys chain a black man to a truck and decapitate him by dragging him down a dirt road, that's a hate crime; but if five white cops pump nineteen bullets into a black street vendor, having shot at him 41 times, that's just 'bad judgment?'"), so I'm suspicious of sectional claims of racial bias. Obviously the lynching, de jure segregation and Jim Crow laws of the South was worse than the quiet and rarely violent de facto separations in the North, but there's a reason why a federal judge in Boston "found that the School Committee had used covert techniques to segregate the system, and had done so with 'segregative intent,'" and why Chief Justice Warren's claim in Brown that segregation in Boston schools had been abolished by the legislation McConnell cites was absurd.

3) Janice Rogers Brown. "Today's senior citizens blithely cannibalize their grandchildren." I know it's a metaphor. It still gets a "Whaaa?" (The people I know who are really into Janice Rogers are of course a subset of the people I know who are really into federalism. I run with a bad crowd, OK?)

4) Capitalism = Community. Tim Sandefur looks at eBay commercials and says,

Conservatives often attack the free market by saying that it somehow demolishes community by "turning people into numbers" or regarding them as "atomistic individuals." The liberal version is that capitalism "alienates" people by leaving them in a cold world of heartless fellow creatures seeking only money and not caring about personality. The reality is just the opposite -- free trade, productivity, giving value for value, contribute to a feeling of mutual respect that builds real communities, not on the basis of coercion and fear, but respect and freedom.

Because of course the most common version of modern capitalism has individuals selling and buying on a one-to-one basis, instead of in millions of impersonal transactions.

eBay is the online version of old-fashioned bargaining in little shops; the kind of capitalism that existed before industrialization and the assembly line in the West, and that you still can find in developing countries and in flea and farmers' markets in the U.S., where the person who sells you stuff is the person who owns it, rather than being an employee. Some of my Reg State classmates and I were discussing the difference this afternoon, as one woman is going to Tanzania and was talking about how people will pay 50% more in the European-style stores to avoid having to haggle and interact with the sellers in the markets. Bargaining imposes higher transaction costs, and people whose time is worth a lot find it more efficient to have prices marked and unchangeable.

She said that when her family went to Mexico they learned to bargain, and upon return to the U.S. her mother tried to bargain with the cashier at McDonald's. This of course is impossible, because the cashier is the tiniest cog in the McDonald's machine, that sets and advertises prices at the national level, and that could not run properly if people at the counter could arbitrate the prices. But if you asked a critic of capitalism to describe a manifestation of it that bothered him, I can almost guarantee that McDonald's would come up long before eBay. This is the atomization and alienation that people worry about.

Moreover, eBay is often used for slightly obscure goods, in the same way that many online communities that involve no free trade at all grew up around uniting far-flung individuals' weirdnesses. I got my Jennifer Crusie backlist off eBay, but I also discovered the whole world of thoughtful romance readers online too. eBay is much more symptomatic of the internet than it is of capitalism. Though if we see a huge growth in eBay style, rather than Amazon style, transactions, I'd be willing to retract my remarks. The 21st century, however, seems far more likely to be characterized by people's buying household goods off Amazon so they can avoid inept local workers than it is by people's forming communities by selling each other stuff.

Also, I don't see eight gallons of packing material for a $12 toy as a community-oriented action, but rather a sign of willingness to contribute a lot of waste to a landfill in order to look like an A+++++ seller. One of the weaknesses of capitalism that the regulatory state attempts to control is that it ignores negative externalities. As long as the buyer and seller are happy, it takes no account of burdens imposed on other parties.

5) Soccer. Sorry, putting it in another country and calling it football doesn't help my short attention span.