What If Julian Assange Were An Arab Muslim . . . .

I have a simple question about Julian Assange, the praised and scorned leader of the WikiLeaks enterprise, which has released scores of confidential governmental materials to media. Today, in a matter unrelated to the release of any documents, Assange was arrested in London for alleged sexual assaults that police contend occurred in Sweden earlier this year.

Dissenting Justice has not analyzed the WikiLeaks situation. Admittedly, WikiLeaks presents important questions regarding the First Amendment and the control of sensitive governmental information. Nonetheless, as the country engages in a debate regarding the appropriateness of Assange's behavior, I wonder whether his defenders' position and the often tentative US government responses would look the same if Assange were an Arab Muslim.

I find it difficult to imagine the public rhetoric surrounding Assange remaining the same under those circumstances. I suspect that many true progressives would defend Assange regardless of his identity. Yet, I am equally certain that many people who are either on the fence or opposed to Assange would demand vigorous governmental action against him if he were an Arab Muslim -- or, possibly, if he simply were not white and male.

This post is not meant to condemn any particular group or person in the United States. Instead, it represents my thinking about the possible operation of gender, race and religion in this situation.

Very Scary: NYT's Article Discusses Highly Partisan Revision of Texas Social Studies Curriculum

An article in the New York Times describes a disturbing list of possible revisions to the social studies curriculum in Texas public schools. The Texas Board of Education ("TBE") approved the changes, which, after a public comment period, could face possible revision before final approval.

Highly Partisan Process
The article describes contentious discussions among Democrats and Republicans within the Republican-dominated TBE. All members are elected.

Ultimately, the TBE approved the changes with a strictly partisan 10-5 vote. A conservative member of the TBE says that the changes will add "balance" to the curriculum.

Highlights With a Caveat
Although the New York Times article is clearly slanted against the proposed changes, some of them sound quite disturbing on their face (regardless of the overall slant of the article). It is unclear, however, to what extent the TBE also accepted favorable improvements to the curriculum and to what degree the proposals listed in the article represent extreme outliers.

Here are some of the details from the article.

One board member said the following:

“I reject the notion by the left of a constitutional separation of church and state,” said David Bradley, a conservative from Beaumont who works in real estate. “I have $1,000 for the charity of your choice if you can find it in the Constitution.”

This view represents the same bankrupt notion that the Constitution spells every right out with particularity. The Ninth Amendment directly refutes that concept, as does the word "liberty" in the Fifth and Fourteenth Amendments. Nonetheless, social conservatives continue to hawk this folly as solid constitutional interpretation.

This view also ignores the role of the Supreme Court to interpret the meaning of the Constitution. Conservatives might disagree with Court rulings, but students should understand that they are binding on matters related to the Constitution. Texas would do a severe disservice to its students if it does not teach them about the responsibilities and powers of each branch of government.

Another conflict centered around race:

Efforts by Hispanic board members to include more Latino figures as role models for the state’s large Hispanic population were consistently defeated, prompting one member, Mary Helen Berlanga, to storm out of a meeting late Thursday night, saying, “They can just pretend this is a white America and Hispanics don’t exist.”

“They are going overboard, they are not experts, they are not historians,” she said. “They are rewriting history, not only of Texas but of the United States and the world.”

Some changes represent blatant efforts to boost the reputation of the Republican Party. For instance:

[Conservatives] made sure that textbooks would mention the votes in Congress on civil rights legislation, which Republicans supported.

“Republicans need a little credit for that,” [Dr. Don McLeroy] said. “I think it’s going to surprise some students.”

I do not mind students learning about the Democrats' or the Republicans' racial past; in fact, I teach these issues in my law school courses. But students should also learn that, as President Johnson accurately predicted, the passage of the Civil Rights Act of 1964 cost the Democrats an entire generation of Southern whites. The Republican Party was more dominant in Northern states at the time (as it was historically). Now, due to a dramatic political realignment, its power is concentrated primarily in the South and among whites.

Also since the passage of the Civil Rights legislation, no Democratic presidential candidate has ever won a majority of white voters nationwide, due primarily to "white flight" from the Democratic Party. Republicans and Democrats deserve full "credit" for their decisions.

Even Thomas Jefferson could not escape the conservative knife:

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone. (Jefferson is not well liked among conservatives on the board because he coined the term “separation between church and state.”)

No Historians, Sociologists and Economists Consulted
Perhaps the worst aspect of the process of curriculum reform in Texas is that "[t]here were no historians, sociologists or economists consulted at the meetings, though some members of the conservative bloc held themselves out as experts on certain topics" (emphasis added). Playing with the minds of young people for partisan gain is reprehensible. Students deserve access to a wider variety of information. Curtailing knowledge cannot serve good ends.

The Audacity of Hypocrisy: Mike Huckabee Says Appointing "Maria" Sotomayor Will Lead to an "Extreme Court"

I will assume that Mike Huckabee meant to say "Sonia," rather than "Maria," in the original version of his diatribe condemning Obama's decision to nominate Sonia Sotomayor as a Supreme Court Justice. But it is really difficult to escape the irony of Huckabee calling Sotomayor an extremist.

Huckabee blasts Obama for picking Sotomayor, arguing that:

Sotomayor comes from the far left and will likely leave us with something akin to the "Extreme Court" that could mark a major shift. The notion that appellate court decisions are to be interpreted by the "feelings" of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.

Oh, the melodrama! I do not accept Huckabee's characterization of Sotomayor's judicial philosophy. Nevertheless, I will hold aside my objections in order to focus on Minister Huckabee's deep hypocrisy.

Huckabee claims that appointing Sotomayor will bring bias and extremism to the Court. But his own views of the Constitution are far more dangerous and unjustifiable than anything in Sotomayor's background. During the 2008 Republican primaries, Huckabee made an interesting argument about the Constitution. He said that it should be amended to comply with "God's standards":

[Some of my opponents] do not want to change the Constitution, but I believe it's a lot easier to change the constitution than it would be to change the word of the living God, and that's what we need to do is to amend the Constitution so it's in God's standards rather than try to change God's standards. . . .

Huckabee has the audacity to call Sotomayor an extremist, but he wants to undo over two centuries of constitutional law that precludes the establishment of religion. I will take Sotomayor's "empathy" and proven record of accomplishment over Huckabee's desire to amend the Constitution in order to impose his view of "God's standards" upon the rest of the country. As my colleague Professor Jamie Raskin so aptly stated, replying to a fellow Maryland State Senator who invoked the Bible in order to oppose same-sex marriage:

"People place their hand on the Bible and swear to uphold the Constitution. They don't put their hand on the Constitution and swear to uphold the Bible."

Huckabee could learn a lot from Raskin.

Has the Left Destroyed California? Um, No!

Real Clear Politics must be hungry for material to publish these days. What else could explain the blog editors' decision to publish Dennis Prager's unprincipled rant on the front page? Prager makes four stunningly problematic claims in his essay "From California to the Boy Scouts: Left Destroys More than It Builds." Prager argues that "the left" has destroyed the state of California, the Boy Scouts, Judeo-Christian religion, and education. What a powerful thing - the Left.

Crazy California Claims
Prager cites a battery of statistics -- from home foreclosures to job losses -- which he contends result from leftist policies. Prager argues that:

Virtually throughout its history, and certainly in the 20th century, California has been known as the place to go for dynamism and growth. It did not become the richest, most populous, and most productive state solely because of its weather and natural resources.

So it takes a lot to turn California around from growth to contraction, from people moving into the state to a net exodus from the state, from business moving into California to businesses leaving California.

It takes some doing.

And the left has done it.

According to Prager, the Left accomplished this drastic feat by spending and regulating. What a surprise.

The problems with Prager's analysis are too numerous to analyze in this limited space. But primarily, the essay suffers because Prager fails to prove that "the Left" runs California today and that it has run California through its economic decline. He also fails to demonstrate that something other than the Left governed California through its past periods of high economic growth. Similarly, he does not link prior periods of economic decline in the state to the Left. In fact, he does not place his "analysis" in an historical context at all. Furthermore, Prager does not consider that the entire world (including all of the 50 states) is experiencing a financial and economic crisis and that the Left cannot even arguably have caused the problems in each jurisdiction.

More importantly, Prager fails to analyze specific reasons for California's problems that actually result from "free market" policies, not from regulation. For example, he cites to businesses and middle-class people leaving the state as evidence that the Left has destroyed it. But the high demand for property in California makes it unaffordable for many people and companies. Intel is leaving California in favor of New Mexico (which has a Democratic government as well) - not because the company is fed up with the Left, but because its much cheaper to open new facilities in New Mexico. This same principle causes U.S. companies to shift manufacturing to Asia and other lower-cost regions and for Wall Street companies to relocate to Northern New Jersey -- a bastion of Democratic political power. Prager ignores this basic explanation for companies abandoning more expensive locations because it undermines his reductionist left-blaming analysis.

The deeply conservative South is the poorest region of the country, and many of the nation's wealthiest jurisdictions are liberal. Accordingly, Prager's analysis could easily support the conclusion that conservative political dominance does not lead to economic growth. Furthermore, the Left certainly did not control the United States during the last eight years of economic decline. But unlike Prager, I refuse to blame one party or ideology for the current economic crisis. Our complex and difficult financial times deserve far more thoughtful and less partisan and kneejerk analysis.

Boy Scouts et al.
Apparently operating under the false impression that he was "on a roll," Prager chooses to make his already simplistic analysis disjointed by adding a discussion of the Left's destructive impact on the Boy Scouts, Judeo-Christian religion, and education. Prager believes that the Left has destroyed the Boy Scouts by challenging its anti-gay policies. Prager argues that the ACLU is the culprit in this destruction (I am not sure whether the ACLU litigated a case against the Boy Scouts, but that's irrelevant).

The Boy Scouts spends more time and money defending itself against (and paying settlements and judgments for) negligence cases than sexual orientation discrimination claims. In fact, since the Supreme Court held (in 2000) that the Boy Scouts could lawfully exclude gays and lesbians, this has become a nonissue in most places. Parents, however, sue the Boy Scouts constantly because their kids allegedly suffer injuries during events the organization sponsors. This is a much larger financial drain on the Boy Scouts than any other litigation or "civil rights" matter. Parents across the political spectrum sue the Boy Scouts persistently; this is not a leftist movement. Furthermore, I reject Prager's assumption that civil rights enforcement is "destructive."

The rest of Prager's analysis is too simplistic to warrant discussion. The problems associated with his discussion of California appear with greater force in his effort to prove that the Left has destroyed religion and education.

Final Take
I am a nonpartisan progressive. I have criticized the Left often on this blog, including its arguments concerning the economy. I have also criticized conservatives. But I reject the notion that any party or ideology has a monopoly on ethics and sound policies. I also believe people often exaggerate the extent to which politicians shape economic conditions. Prager's deeply partisan rhetoric does not advance debate. Instead, he has recklessly tossed a hand grenade into a difficult and delicate situation.

Marrying Church and State? The Unseemly Focus on Religion in Politics

During the primaries, Obama's church received more passionate attention than his policy proposals. The conflict over Reverend Wright caused commentators to debate race, religion, and transparency in politics. Most of them, however, failed to ask a simple question: Why is this even relevant? Now that the media are focusing on Obama's yet unchosen church in Washington, DC, this issue will likely remain on the political radar.

From my perspective, religion has no part in governance, and an abundance of constitutional doctrine and tradition limits the interaction of religion and state action. Given this separation of church and state, the sensationalized coverage of the religious lives of political candidates strikes me as a puzzling display in distraction. Nonetheless, candidates now engage in a bizarre ritual in which they routinely profess a belief in God or Jesus. Confessing such a belief is now mandatory, just like saying that one wants to "improve schools" and "reduce crime."

During the recent political campaign, liberals spent a lot of time debunking rumors that Obama is a Muslim, rather than asking the relevance of such rumors on his suitability for public office. I am far more interested in how candidates will design policy. And religion is a pretty weak proxy for policy views. Reverend Wright and Pat Robertson are both "Christians," but they have very different opinions on public policy. Perhaps the media should end the circus by delving into policy -- rather than trying to figure out whether Sarah Palin practices witchcraft or whether Obama's minister wanted 9/11 to happen. But then again policy debates do not generate as much "traffic" as religious or sexual scandals, so I do not expect much to change in this area.