Wednesday, January 24, 2007

Ignoring Ambition Checking Ambition

At the founding of our country, James Madison felt confident that a system of checks and balances between different branches of the federal government would work, because "[a]mbition must be made to counteract ambition." Neither Madison, nor the founders generally, anticipated the role that dominant political parties would play in harmonizing the goals of the various branches when those branches were instructed to toe the party line.

Today, Senator Chuck Hagel (R-Ne) is valiantly and eloquently standing up to the Bush surge-scalation effort, vocally opposing the White House and demanding that his fellow Senators take a position. In chiding his fellow colleagues into being clear about where they stand on Iraq, Hagel offered this:

What do you believe? What are you willing to support? What do you think? Why were you elected?

If you wanted a safe job, go sell shoes. This is a tough business. But is it any tougher, us having to take a tough vote, express ourselves and have the courage to step up on what we’re asking our young men and women to do?

I don’t think so.
If you wanted a safe job, go sell shoes is probably the most concise, memorable statement about political responsibility that I've heard during my adult life.

So how does the neoconservative establishment respond to Hagel's ambition? By ignoring it. In the 58 posts and 8,604 words that National Review editors have written today on their blog, the word "Hagel" appears exactly once — and then, only in reference to an immigration bill he co-sponsored last year.

Until the authors of the current debacle — whether it be the intellectual authors at the National Review or the strategic authors like Dick Cheney — learn to address their critics in a forthright and authentic manner, it will be impossible for them to repair any of the erosion that has so completely undermined their credibility.

A Toast to the American Constitution Society, the Federalist Society, and the Agreed-upon Constitution

(Crossposted from the American Constitution Society :: Columbia Law School)

By popular demand, here's the toast from the Columbia Law School's ConLaw Mixer, held on January 23, 2007. The event was jointly hosted by the local chapters of the American Constitution Society, the Federalist Society, and the Constitution Law faculty here at Columbia.

When ACS President Jon Sherman asked me to say a few words for this event, I initially thought I’d focus on the differences in how the American Constitution Society and the Federalist Society approach the Constitution.

I mean, every ACS member knows that the members of the Federalist Society look longingly at the days before pasteurization — that they fancy themselves as yeoman farmers on the New Jersey frontier where they dream of a world in which interchangeable parts will someday be a reality.

Similarly, every FedSoc member knows that when the members of the American Constitution Society hear someone talking about "penumbras formed by emanations," they promptly instruct the bartender that they’ll have what that guy’s having.

. . . but these differences are minor. Today, let’s celebrate the similarities — of which there are many. I’ve spent the past couple days pouring over this document, locating areas of significant agreement. I’ve found three areas of broad agreement about the Constitution. Interpretations upon which we can all agree, areas that we can all toast.

AREA #1: We agree on many of the powers assigned either to the states or the various branches of our federal government.

What does this mean?

For the States, we shall not rest until states stop granting Letters of Marque and Reprisal and until they stop granting Titles of Nobility. We insist they settle their past debts using gold or silver.

For the Congress, we demand that it not shirk its duty to establish post Roads, to erect needful Buildings in D.C., and — as stated in Article 1, Section 5, clause 2 and reiterated the 20th Amendment — that it meet at least once every year.

For the Judiciary, we insist it remain vigilant to the needs of justice, that it insure no Attainder of Treason work Corruption of Blood, and that no one shall not be convicted of Treason without a rigorous trial consisting of at least 2 witness presenting evidence against her.

Most importantly, we ask that the judiciary fully enforce the 11th Amendment, whether that amendment actually means what it says . . . or whether actually every word of that amendment means the exact opposite of what it appears to mean.

Finally, concerning scope and appropriate exercise of Executive power, we… you know what, let’s just move on to Area #2.

AREA #2: I know I speak for everyone in this room when I say we supports the passage of the original 1st Amendment — the Congressional Apportionment Amendment.

As many of you know, on September 25, 1789 the 1st Congress introduced 12 — not 10 — amendments to the states as the Bill of Rights.

The original 2nd Amendment — barring Congress from granting itself immediately effective pay raises — became the 27th Amendment on May 20, 1992. However, the original 1st Amendment was only ratified by 11 states — 2 shy of passage at the time. Since Coleman v. Miller makes clear that all amendments are considered pending before the state indefinitely unless Congress establishes a deadline within which the states must act, only 27 states are now needed to ratify this amendment for its passage. Hey 27 states, pass the original 1st Amendment.

If passed, the Congressional Apportionment Amendment would establish guidelines for the size of the House of Representatives. The Amendment’s math is a little hazy, but it ends with this important instruction: "there shall not be . . . more than one Representative for every 50,000 persons."

With a present US population of more than 300 million people, this introduces the possibility of a 6,000-member House of Representatives. I know I speak for everyone here when I say that if there’s one thing that the august body of the House needs to be truly effective, it’s to have 5,565 members added to its ranks.

In closing, Area #3 is really a pledge:

AREA #3: We pledge from this day forth that we shall write like the authors of our Constitution.

Not only shall we employ capitalization seemingly at random and use either British, tortured, or inconsistent spelling whenever possible, but — like the Constitution’s signatories — we shall sign our name to documents using absurd abbreviations.

I mean, why grace the document with your full name — it’s only a Constitution? These people, these founders, signed the Constitution with all the formality of someone signing a traffic ticket. William Blount went with the predictable "Wm." but William Livingston chose the path of a hipster, abbreviating "Wil:" Jonathan Dayton became "Jona:" Robert Morris became "Robt." . . . and anyone who has studied with Professor Hamburger will know who I’m talking about when I tell you that one of them merely signed "Gouv."

5 of the signatories determined that their signatures constituted little micro-sentences, worthy of ending with a period. We, too, shall end our signatures with periods. From this day forward, if you see a document signed "And: Brad:." know that it is me.

As you can see folks, our points of agreement are broad and substantial. So here’s to our agreements and our differences, here’s to our faculty and our constitutional societies, and here’s to the wig-and-tight-pants-wearing founders who made it all possible. Cheers!

Monday, January 22, 2007

The Loathsome 50

You may not agree with the placement of the various personalities who occupy The BEAST's 50 Most Loathsome People in America — 2006, but you'll immediately recognize it as a well-crafted work of hate art.

Not merely another liberal tear into the perceived conservative establishment, this piece takes an equal-opportunity approach toward realigning gastrointestinal tracts.

Friday, January 12, 2007

Virginia Wasn't The Only Place That Wasn't For Lovers

(Crossposted from the American Constitution Society :: Columbia Law School)

It's easy to be hard on Virginia for having an anti-miscegenation statute in 1967.

It's easy to forget that it wasn't alone.

Source: Loving v. Virginia, 388 U.S. 1, 6 n.5 (1967).

Thursday, January 11, 2007

The Last Will Be First, The First Will Be Last, and This Supersedes Any Prior Agreement or Understanding

In some traditions, the law and religion are cut from the same cloth. Although few may agree with me when I say that law has become its own type of religion – in the all-is-religion view that similarly permits baseball, politics, and Star Trek to also serve as religion to their followers/adherents – the kinship of law and religion is most amusing when it rears its head in unlikely places.

This, from a model acquisition agreement in the back of Gilson & Black's The Law and Finance of Corporate Acquisitions:

XVII. Miscellaneous
. . .
B. The singular shall include the plural and the plural shall include the singular; any gender shall include all other genders—all as the meaning and context of this Agreement shall require.

Thursday, January 04, 2007

Male & Female & Somewhere In Between

Today, Sauntering Resident Scientist Garfield reports from the field about males, females, and the space between the two:

Unless you have been living in a cave, you’ve almost certainly been involved in a water-cooler discussion this past month about the Indian runner, Santhi Soundarajan, who was stripped of her silver medal in the Asian Games after failing a gender test.

I was told about this story during the Department Christmas Party about 45 minutes after I decided that the free bar was not receiving enough attention from the invertebrate zoology wing and that I was the only one capable of remedying this situation. For those dissatisfied with my treatment of this issue in the next few paragraphs, I refer you to the preceding sentence.

My first thoughts upon hearing this story were:
  1. How hard can it be to determine gender? Did this really require a team of specialists?
  2. What in the world did they mean when they said she had “abnormal chromosomes” and “more Y chromosomes than allowed?”
The plant people, who decidedly were making good use of the free bar, and I came up with the following observations which, fortunately for this blog, were recorded on a cocktail napkin because I thought it would make for an interesting letter to our irritatingly conservative student paper.

Topic One: Gender is a complicated issue.

Actually, complicated doesn’t cut it. Gender is a mind-boggling complex set of issues that are often related to, but can be analyzed quite independently of, what sorts of gametes you produce and your sexual orientation. The best treatment of this topic, from a biological perspective, that I am aware of is Joan Roughgarden’s Evolution’s Rainbow, which is nicely reviewed here.

In her book, Roughgarden, who in addition to being a transgendered individual is one of Biology’s great synthesizers of theoretical and empirical approaches to evolution and ecology, catalogs the vast array of gender roles that occur in natural populations. While gametes tend to come in two flavors (Big/Egg and Little/Sperm), individuals can change sex during the course of their lifetimes and, even in cases in which sex remains constant over time, can play many, many more roles in the production of offspring than the binary distinctions “male” and “female” can effectively capture. If I’m ever invited back to post again, I’ll rant about the many sad ways in which failing to understand that gender is anything but a binary classifier have ruined lives. In the mean time, I invite you to read about the Bonobos, our sex-crazed relatives whose embrace of complicated gender roles have lead to a vastly more peaceful existence than that experienced by rest of the Chimpanzee world, in which the usual mode of conflict resolution involves beating your neighbor to death if he looks askance at your favorite female. If I die and get to come back as anything interesting, I’m coming back as a Bonobo. No pun intended.

As fascinating and complicated as the topic of gender is, it is presumably not what the officials were concerned with when they decided that Soundarajan was too man to be woman. What they were concerned with is the observation that while gender and sexuality come in many flavors, a great deal of the variation between humans can be effectively captured by two labels, “male” and “female,” and that individuals to whom these labels apply tend to perform differently in sporting events.

The primary culprit for this dimorphism of concern to sports enthusiasts is Testosterone, that most wonderful of hormones that builds larger muscles and bones, produces less hair on your head and more everywhere else, poisons the minds of 15-24 year-old males the world over, and would presumably give an unfair advantage to any female athlete producing (or injecting) unnatural levels of this hormone. This brings us to topic two.

Topic Two: There’s more to a being a man than a Y chromosome.

From my perspective, the line “The official also said the test revealed more Y chromosomes than allowed” sums up the most interesting aspect of the case. If having a Y chromosome is the biological definition of male-ness, as it was for many years for the International Olympic Committee, how can one have more Y-chromosomes than allowed? Isn’t one enough? The process of sex determination is, like gender, a complicated thing. While the end result of the process is usually binary, there’s a lot of ways to get intermediate results.

Human embryos default female. That’s right, each XY male out there started out on the road to being female but was halted in the process by an influx of testosterone released when genes encoded by the SRY region of the Y chromosome cued your nascent gonads to start pumping the stuff out. Of course hormones other than testosterone play a causal role in the development of sexual traits. But baring the activity of testosterone, your developing body would default to produce the hormones that trigger cells to build female structures, not male.
At each step along this process of differentiation, processes can go awry, and cells can fail to respond appropriately to the hormones all around them, resulting in a developing embryo with sexual characteristics both male and female. At the department Christmas party, we came up with the following list of common ways of generating intersex individuals. I list them here with the caveat that none of us are human endocrinologists and that its not a complete list. Furthermore, it doesn’t acknowledge the fact that even when nothing “goes wrong” with the sex determination system, there’s more of a gradient between male and female structures than is generally acknowledged.

Androgen insensitivity: The Jamie Lee Curtis Syndrome
I don’t know if its true or not, but I grew up with the rumor that Jamie Lee Curtis is, in fact, biologically male, but has a mutation in the receptor for testosterone that made her developing body insensitive to the effects of testosterone and other androgens. I don’t know if this is true or not for Curtis, but the phenomenon is well documented and has effects ranging from male sterility to the production of females normal in almost every regard, but lacking a uterus and, obviously, the ability to bear children. If I had to guess, I’d put my money on some variation of this.

Klinefelter Syndrome
In something 1 in 500 male babies, an early nondisjunction event leads to cells containing XXY instead of the usual XY or XX. This is probably not viable contender here, because Kleinfelter’s individuals are pretty obviously male. But people keep asking me about this, so I put it in. Related is Turner Syndrome, in which females have only a single X chromosome (XO rather than XX or XY). While these individuals have reduced female sex characteristics, they are pretty clearly female, and are unlikely to be running track given the other symptoms that come along with having only a single sex chromosome.

Other types of chromosomal mosaicism
It does happen. Every so often you get individuals containing both XY and XX containing cells, but the relevance of this to the case in question is far from clear. In most cases, humans with unusual chromosome counts are fairly abnormal, and would probably not be winning silver medals in track events. Furthermore, humans, unlike butterflies, show secondary sexual characteristics as a result of hormonal influences. Even if some cells were XY, in a body with female gonads and sex hormones, they’d act female, and vice versa.

Swyer Sundrome
This label applies to a suit of genetic abnormalities, usually involving mutations to the SRY region of the Y-chromosome, and often resulting in an inability to synthesize testosterone, that affect the process of differentiation from female to male

What strikes me is that in each of the above cases, having a Y-chromosome in a woman has little effect on a woman’s physiology other than adversely affecting her ability to have children. That’s because in most cases, biological females with Y-chromosomes are either unable to produce or are unable to respond to male sex hormones, and as a result do not “enjoy” the athletic enhancements associated with having high levels of testosterone. For individuals with ambiguous genitalia, this may not apply. The effects of androgens may be in full effect. But in these cases, I’d argue it doesn’t matter as much to which gender individuals have been assigned or adopted. What matters is the extent to which androgens like testosterone have affected muscle production and physiology, and suggests to me that if the world’s sports authorities were really concerned with equity in sports, they’d do better paying attention to Chinese women swimmers with 5 o’clock shadows than bothering this poor woman.
Garfield really is a scientist and reports to you occasionally from the Biology Department of a fine research institution dedicated to the discovery and creation of sanctified knowledge.

Wednesday, January 03, 2007

The Return of the Long-Silent Pat Robertson

Although he failed to be publicly kooky during the latter half of 2006, Pat Robertson gave 2007 a kooky start with his prediction that the U.S. will suffer a major terrorist attack this year, probably after September.

In case you missed Pat Robertson's disaster prediction for 2006, he foretold a tsunami hitting the Eastern Coast of the United States.

Click here to marvel at the lasting kookiness of Robertson.