We must reject watchlists if we are a nation of laws

I favor strict national gun regulation. There are bad ways to do it, and good ways, but almost any consistent regime would be an improvement over the status quo. If you had asked me the day before yesterday, I would have said that I'd support nearly any gun control measure that was brought before the U.S. Congress.

Well, congratulations, Democrats! You've discovered a way to do it, maybe the only way, that I find stupid and unconscionable: extending the power of "terrorist watch lists" into the realm of gun control. That you should stage a theatrical stunt on the House floor over this measure, of all measures, after you've spent my entire adult life caving cravenly to one right-wing authoritarian demand after another, from illegal war to the normalization of torture, beggars the imagination.

Right off the bat, let's be clear that this measure will have almost no effect on gun violence. But unlike most gun control measures, this one is not merely feeble; it is actively malign, because it further empowers an evil institution.

The so-called "terrorist watch list" is a fundamentally broken idea that is both impossible to implement well, and a moral catastrophe for the rule of law and human equality and liberty.

There are over a million identities on the watchlist, mashed together from many sources of unknown provenance and overseen by nobody with any accountability to disinterested review. Anybody who has worked with database integrations and human organizations of any size knows with total certainty that this watchlist is full of nonsense. Ted Kennedy was on the watchlist. Bollywood movie star Shah Rukh Khan was on the watchlist. The "terrorist watchlist" is a pile of garbage wrapped in a tire fire.

It can't help but be so: the count of people worldwide who engage in non-state terrorism against civilians is miniscule. It is a numerical certainty that nearly all of the people who are on a million-member watchlist are entirely innocent and have no potential to commit a terrorist act.

And how did the data come to be such a fetid swamp of nonsense? Nobody will tell you. The contents of the watchlist are secret; the processes for getting an identity onto the watchlist are secret; the criteria for getting your identity off the watchlist are secret. Good luck if you end up on it, and you're somebody with less clout than a sitting United States Senator or an international celebrity.

Maybe it's time for a brief refresher on how a nation of laws is supposed to work. Laws must be known to the people who govern them. There must be an agreed-upon process — a due process, you might say — by which people are deprived of their rights under those laws. Once you have been convicted of a crime, the state's carceral machinery may act upon you, but until then, merely suspected persons retain their rights. And you don't lose your rights in secret, whereupon you may sue to get them back; the burden of proof is on the state to exercise this due process to take your rights away.

Making legal processes open to public inspection is the most powerful way that we know to ensure that their operation is just; that, for example, we are not merely turning people into second-class citizens for being Muslim or black or whatever the current least-favored category of citizens is. One would think that this argument, at least — that, as Black Lives Matter and related movements have made undeniably clear in recent years, the state operates in flagrantly discriminatory ways when it operates without scrutiny — would carry some currency, even in a left-of-center discourse that values civil liberties less and less as the Bush years recede into the distance.

Yet through the depressing machinery of tribalism, it has suddenly become conventional wisdom in progressive circles that all right-thinking people shall support a bill that further entrenches the influence of the racist, unaccountable, unconstitutional no-fly-list. Otherwise-intelligent people in my Twitter feed have even argued that passing this legislation is the first step towards "fixing" the watchlist:

5/ both so we can *start* regulating guns, *and* so we can start fixing the watchlist, we should absolutely pass the Democratic proposal.

— Ben Adida (@benadida) June 23, 2016

Astonishing. Astonishing. I have no way of even processing the level of wishful thinking and partisan groupthink necessary for a reasonable person to make this argument in good faith. Can you think of a single example in history where giving a Kafkaesque bureaucratic apparatus additional unaccountable power led to its reform, let alone any such apparatus connected with the security state? I doubt it; the ratchet turns in the other direction.

I have an alternate prediction. Should this legislation be passed by Democrats, we can look forward to the positions around the watchlist becoming crystallized along partisan lines. Since empowering the watchlist will count as a signature political achievement for Democrats, attained through a highly memorable media stunt, henceforth Democrats will fight any efforts that even remotely smell like dismantling the watchlist; this will, of course, include any efforts at meaningful reform. As reverence for the immaculate watchlist turns into a shibboleth of partisan identification, enterprising Democrats will eventually start to propose even more unconstitutional measures to extend its influence into other areas of public life. The extensions will come with, at best, token reforms; perhaps these reforms will moderate its effects on upper-class and upper-middle-class people with surplus time and financial resources, but leave the overall system fundamentally unaccountable and outside any recognizable form of due process for nearly everybody on it. Millions more human beings will suddenly become second-class in the eyes of state; their circle of rights will gradually shrink. The normalization of secret law in the United States will accelerate. Neither Democrats nor Republicans will have the stomach to turn this ratchet backwards.

Furthermore, having discovered again that "terrorism" is the magic word which can rally even the most spineless legislators into action and cow even the most intransigent opponents, Democrats will use this handy rhetorical cudgel to beat anybody who disagrees with them, just as Republicans did during the Bush years, until it is nearly meaningless with overuse. This will be used to pass all manner of additional legislation, equally stupid. Meanwhile, progressives like myself will be excoriated for allegedly being on the side of terrorists and right-wing loons, simply for opposing stupid and malign laws.

D. Lowery on copyright infringement: How to alienate potential allies through intellectual dishonesty, illustrated by example

Young people's cavalier attitude towards copyright infringement is maddening, but this essay by D. Lowery comprehensively misunderstands what the Free Culture movement stands for. The guy repeatedly slams Free Culture but apparently has read neither Lessig's book Free Culture which gives the movement its name, nor the Creative Commons website, even though he links to a PDF of CC's tax filing.  This intellectually irresponsible ignorance makes me disinclined to be sympathetic to him.

Furthermore Lowery seems to have no conception whatsoever of:

• The purpose of copyright law: viz., to ensure the production of the creative and useful arts. Note that there seems to be just a bit of culture being produced on the Internet these days, so the burden of proof is on those who want to lock the Internet down.
• The costs and unintended consequences of reorganizing society in the ways that he prefers — so that service providers must implement comprehensive preemptive review of what is posted, or so that it would be dramatically easier for people to issue takedown notices on content published on the Internet. For example, Lowery's blog is hosted on Wordpress.com; comprehensively applied human review as a mandatory requirement for hosting service providers would have made Wordpress impossible in its current form; and dramatically easier takedown would make it trivial for a random troll to censor Lowery's blog post in a fit of pique.

...among other things.

Note that I buy or rent all my music and movies.  Almost nobody else I know does this consistently.  I did not illegally download the second season of Game of Thrones; I am waiting for it to come out on disc.  Mostly, the people I know seem to view me as sort of a sucker, but I do this because I view copyright infringement on entertainment media as beneath my dignity, like shoplifting.*  If my reaction to Lowery is to get extremely pissed off at his cavalier disregard for the truth, perhaps he should consider changing tactics.

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*Of course, purely as a matter of utilitarian ethics, there is a huge difference between copyright infringement and shoplifting physical goods, but never mind that; this is just how it makes me feel, in this particular case.

Software patents have tangible costs for innovation, and for you

I have a friend who's been working extremely hard on a small software startup for the past few years. He and his partner developed a genuinely innovative, original technology which solves a useful problem for end-users and probably has significant commercial value. The technology has been integrated into a website that is awesomely functional and and even fun to use. (I'd point you there, except that I'm going to discuss legal matters shortly and I think it's better not to identify the parties by name.)

His startup recently got sued for patent infringement by a company that independently developed a product that performs a vaguely similar function. This other company's product is much less sophisticated, and their user-facing site is an ugly, user-hostile pile of crap. The term "search arbitrage" would be a kind word to apply to this other company's product. And there is absolutely no sense in which my friend's work builds on any of this other company's technology.

Now, my friend and his partner have consulted multiple IP lawyers and they've said, "Yep, the law is probably on your side." They have also said, "You're still screwed." The trial would take forever, the legal fees would be ruinous, and in the meantime nobody will invest in a company which has a litigation cloud hanging over it.

So, this sucks for my friend and his partner. More importantly, this sucks for you, because, having seen the product, I am 100% convinced that you, or someone you know, would love to have this technology acquired and integrated into a major site that you use.

This sort of story is not at all uncommon in the software industry. I've been meaning to tell it for a couple of weeks now, because it made me think of this post by Tim Lee about "libertarian political philosopher" Richard Epstein's bold claim in an amicus brief* that:

The credible threat of a published patent’s right to exclude acts like a beacon in the dark, drawing to itself all those interested in the patented subject matter. This beacon effect motivates those diverse actors to interact with one another and with the patentee, starting conversations among the relevant parties.

In response, Tim writes:

There’s nothing beacon-like about software patents. Software companies do not use patents as a mechanism for finding technologies or business partners. Patents tend to be written in unintelligible legalese, they’re not well indexed, and they issue years after they’re filed. They’re completely irrelevant to the day-to-day process of product development in the software industry. I’ve never met a software developer who regards the patent database as a useful source of information about software inventions, nor can I think of an example of a software company (Intellectual Ventures doesn’t count) that uses patents as a central part of its product-development strategy.

Completely true, except that Tim does not go nearly far enough. At any software company with competent legal counsel, developers are instructed in the strongest possible terms never, ever to look at a patent, because the tiniest amount of documented influence could be used as ammunition in a lawsuit. The only time a sane software developer reads a patent is when your company's lawyers specifically ask you to help them prove you're not infringing on one. If you ever get wind that there's a patent even vaguely related to your work, you stick your fingers in your ears and run in the other direction. In short, software patents facilitate "conversation" about as well as poison gas bombs do.

One thing that I find extremely frustrating about many legal scholars' and economists' approach to patents is that they make two false assumptions. The first assumption is that transaction costs are acceptable, or can be made so with some modest reforms. The second assumption is that patent litigation is reasonably "precise"; i.e., if you don't infringe on something then you'll be able to build useful technology and bring it to market relatively unhindered. As my friend's story shows, both of these assumptions are laughably false. I mean, just black-is-white, up-is-down, slavery-is-freedom, we-have-always-been-at-war-with-Eastasia false.

The end result is that our patent system encourages "land grab" behavior which could practically serve as the dictionary definition of rent-seeking. The closest analogy is to a conquistador planting a flag on a random outcropping of rock at the tip of some peninsula, and then saying "I claim all this land for Spain", and then the entire Western hemisphere allegedly becomes the property of the Spanish crown. This is a theory of property that's light-years away from any Lockean notion of mixing your labor with the land or any Smithian notion of promoting economic efficiency. And yet it's the state of the law for software patents. Your business plan can literally be to build a half-assed implementation of some straightforward idea (or, in the case of Intellectual Ventures, don't build it at all), file a patent, and subsequently sue the pants off anybody who comes anywhere near the turf you've claimed. And if they do come near your turf, regardless of how much of their own sweat and blood they put into their independent invention, the legal system's going go off under them like a land mine.

It is hard to think of a more effective mechanism for discouraging innovation in software. I mean, I suppose you could plant a plastic explosive rigged to a random number generator under the seats of every software developer, and that would be slightly worse.

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* To be fair, the amicus brief is not completely Epstein's work; it is the sworn work of one Dr. Ananda Chakrabarty and coauthored with lawyer F. Scott Kieff. I don't really know how these things work, but I assume that Epstein agrees with the argument laid out even if he's not the lone progenitor of it.

J. Holbo on hate crimes

At CT, J. Holbo kicks off a discussion of the moral and legal justifications for hate crimes legislation, and how calling it "thought crime" is basically ridiculous. Worth reading because (a) Holbo is uncharacteristically terse and (b) the comments thread's decent enough that I have little to add.

One can parse out a distinction between hate crimes legislation and other uses of mens rea in criminal law but, as the thread illustrates, it's an exceedingly fine line, and a much subtler one than is commonly supposed by the rhetoric of hate crimes legislation opponents. It's pretty clear, once you think this through, that the debate over hate crimes legislation is more "haggling over price" than some bright shining line of moral principle.

Busting prostitution: An efficient use of police resources

So, today I ran across this from A. Lapite (original source at Gotham Gazette):

Robert Pinter, a 52-year-old gay man who was arrested for prostitution at the Blue Door in the East Village on Oct. 10, spoke at the town hall meeting. He said a young man — a 29-year old undercover cop who, Pinter said, looked even younger — cruised him in the store. He was "charming and persistent, and we agreed to go home for consensual sex, but as we were leaving he said, 'I want to pay you $50 [to have sex].' I didn't respond, but I thought it was strange," Pinter recounted. As the men left the store, Pinter said, a group of men who did not show police identification pushed him against the wall.

"I thought I'd been set up by a gang," he said. "I asked them why they were doing this to me. I was totally clueless. They handcuffed me and said, 'Why the f--- do you think we're arresting you — loitering for the purpose of prostitution.'"

and this, also via Lapite (read the whole thing, it's short):

It was Rocio Palacios who first noticed the woman who appeared to need help.

It was 8 a.m. when she and her husband, Erasmo, dropped their 6-year-old daughter off at school and had picked up their 22-year-old daughter to go out for breakfast when they saw the woman waving her arms at 53rd Street and Kedzie Avenue last November.

The Palacioses, of Chicago, claim the woman approached their car, parked outside Manolo's restaurant, leaned in to the passenger side where Rocio was sitting and asked Erasmo if he wanted oral sex for $20 or sex for $25.

The couple laughed, realizing this wasn't a woman in distress after all.

But within seconds, Chicago police swarmed the family car, hauling Erasmo Palacios out in handcuffs. He was charged with solicitation of a prostitute.

So, in case you haven't guessed by now, the title of this post is sarcastic.

Now, these two incidents don't prove anything by themselves. But both stories suggest that the police departments in question had adopted questionable policing strategies; and note that the NYPD and CPD are the two largest municipal police forces in nation, and doubtless among the best-funded in the world, with budgets of roughly $3.9 billion and $1.2 billion respectively. If the vice units of these highly professionalized forces are doing stuff like this, what happens elsewhere?

Decriminalizing prostitution may be politically unrealistic, but it seems to me that we ought, at a minimum, to be focusing enforcement effort on its genuinely pernicious aspects: coercive trafficking, prostitution-related violence, and underage prostitution. But, of course, busting a trafficking ring requires hard investigative work, whereas paying an individual undercover cop to "solicit" a consenting adult requires minimal skill and energy.

(Which — sigh — is exactly why we should legalize prostitution itself, and criminalize that which is genuinely harmful. Police have a finite budget of time and will allocate that time efficiently by arresting those lawbreakers who can be most easily apprehended. I'd argue banning prostitution per se makes life easier for trafficking rings by giving vice cops something to do besides busting trafficking rings. But whatever, I'm shouting into the wind here. The gates to prostitution decriminalization are guarded by the three-headed dog of social conservatives plus radical feminists plus the large majority of people who simply find prostitution "icky" and I'm pretty convinced that nothing's ever going to fix this problem in the U.S.)

Supreme Court 2009: the big picture

No particular opinion about Sotomayor. She'll most likely replace Souter, Republican whining notwithstanding, and actually that's not very interesting. Souter's a liberal; Sotomayor's a liberal; the balance of the court will be unchanged.

At the risk of being excessively morbid, here's what matters, in roughly increasing order of importance:

• Breyer: 70 years old.
• Stevens: 89 years old (!).
• Ginsburg: 76 years old.
• Kennedy: 72 years old.
• Scalia: 73 years old.
• Life expectancy at birth for American men: 75.15.*
• Time to Election Day 2016: roughly 7 years and 5 months.

It's a cliché by now to remark that the most enduring political successes of Bush 41 and Bush 43 were their Supreme Court nominations. Thomas, Roberts, and Alito are not only uncompromisingly hard-right conservatives; they're all 60 or younger and will probably stay on the court into the 2020s. The ascension of Alito to replace O'Connor was a particular disaster. Gonzales, Meredith, and Ledbetter were only the beginning. We're going to see many more ugly 5-4 decisions in coming years.

But if Obama gets re-elected in 2012, there's a non-negligible chance that he'll get to nominate five or six justices to the court in total, swinging the balance back to a liberal majority — maybe even a 6-3 majority.

Of course, that's assuming a number of coins all come up heads. It's far from certain that Obama's going to be re-elected; it's far from certain that Senate Democrats won't lose the majority or simply cave to Republican demands for conservative nominees; and I wouldn't be surprised if Scalia manages to hang on by his fingernails until he's 110. But the point is that it wouldn't take a miracle for such a dramatic transformation to occur within Obama's Presidency.

Is this surprising? Upon reflection, not especially. On scotusscores.com, the recent 1994-2005 stretch stands out as an unusual period of stasis — as J. Toobin remarks in The Nine, it's the longest interval the court's ever had with the same nine justices. But when justices stay together for a long time, it means that they're also from the same age cohort**, and therefore that they'll also reach retirement age together. O'Connor's retirement and Rehnquist's death were just the leading edge of a generational turnover that will run its course over the next decade or so. And since both parties are now savvy enough to nominate young justices, we can look forward to another relatively long period of stasis after that.

Incidentally, this also means it would be wise for the other liberal justices — Breyer, Stevens, and Ginsburg — to follow Souter's lead and retire as soon as possible, while it's certain who will be nominating and confirming their successors. But reading Toobin's book has convinced me that Supreme Court justices aren't unusually wise, so it's anyone's guess what they'll actually do.

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*OK, time for the caveats. Mean life expectancy at birth is a misleading measure for seventysomething Supreme Court justices. Causes of "young death" like infant mortality and teenage driving accidents and AIDS significantly reduce mean life expectancy at birth, but have no relevance to the life expectancy of people who have passed those filters; so the life expectancy of a 73-year old is considerably higher than the life expectancy of a newborn. Furthermore, Supreme Court justices have an excellent government-funded health care plan, and disagreeing with the politics of the President who would nominate your successor to the Highest Court In The Land is a strong motivator to look after your health. And the probability that Scalia would leave the Court not in a coffin while there's a sitting Democratic President is basically nil. All in all, I suspect that at least one of Scalia or Kennedy will stay on the court past his 80th birthday. So 6-3 is a long shot. 5-4 doesn't seem too unlikely though.

**OK, excluding Thomas, who was an outlier on the Rehnquist Court in more ways than one.

Condoleeza Rice: The rationalizing, supercilious face of evil

When C. Rice retired from her life of crime, she decided to become a professor at Stanford. Unlike, say, Bush's retirement to his ranch, this position entails occasionally being confronted by young and idealistic students about her past:

Evil has many faces and this is one of them. It is a face that blandly smiles upon horrific acts and later spins an endless stream of moral justifications from whatever flimsy fiber is conveniently available. A morally whole human being, upon learning that prisoners had been subjected to controlled drowning hundreds of times due, in part, to actions that she had participated in, would acknowledge the horror, accept some kind of responsibility, express some kind of regret.

Rice does no such thing. She has entirely expunged any feelings of guilt. Any residual sense that she might have been wrong has been entirely conquered by her narcissistic need for self-justification. Observe her demeanor, and her language ("dear", "do your homework"): Not only does she feel that the student's wrong, she feels that it's vaguely unfair that people even think she did something wrong, and especially unfair that young uncredentialed whippersnappers outside the circle of power get to question her conduct.

Forget about the tortured prisoners; what about Condoleeza's suffering? Huh? It puts one in mind of an old Fafblog post.

As to the substance of her argument, it is nonsense, of course. It rests upon the twin assertions that

• since the Bush administration orders were phrased so as to authorize only interrogation techniques cleared by the Justice Department, they were ipso facto legal; and
• Chewbacca was a wookie — that is, lots of irrelevant misdirection about stuff like the uniqueness of al Qaeda (about which, in particular, A. Serwer has the best answer).

The first defense opens an infinitely large loophole in the rule of law — appoint your pet lawyers to Justice, and then trample on the law all you want! Even if you could, by some reading of the relevant legal texts, construct a legal theory that reached this conclusion, you would not want this reading to be the one that prevails in governance. To establish such a precedent would be disastrously bad as a matter of public policy. It would be much better to construct a different reading, one in which the most powerful people are actually constrained by the law.

If Rice were a dispassionate observer — if the very same quality of mind were transplanted into someone who had no personal or professional ties to the Bush administration or the conservative movement — it is hard to believe that an idea so patently bad and stupid would get past her. But self-interest and tribalist instincts are powerful motivators. And I suppose you go to war with the flimsy legal arguments you have...

...and not the ones you wish for.

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Incidentally, judging just from the first video, you might conclude that Rice "wins" the confrontation. And in theatrical, TV terms she does: at the end she fishes out a gotcha question about Guantanamo which the student cannot answer. This was a foregone conclusion. It's not really a fair fight: Rice has had a long time to practice her legalistic justifications for her actions. These students are newbies. Her ability to fend off some callow undergrads demonstrates that an expert in any given subject can extemporaneously ejaculate a convincing wad of noise to defend anything.

But let's examine the two ways she deflects the student's question.

First, she goes on at length about Guantanamo not being a site for interrogations. This is correct; the torture was conducted by the CIA in locations around the world that have not been disclosed, although they're outside the United States. According to ABC News, one likely candidate is abandoned Communist military bases in Eastern Europe. Which is so much better than doing it in Guantanamo! But Rice doesn't mention any of that. The student's confusion regarding interrogation vs. indefinite detention is actually convenient for her, as it allows her to completely change the subject away from torture without being obvious about it.

Second, regarding Rice's gotcha question about putting the Guantanamo prisoners on trial: the answer to Rice's question is that federal courts halted the trials because they concluded that the trials were being conducted illegally. Or, more euphemistically, the tribunals convened by the Bush administration had failed to satisfy the requirements necessary to be called proper ("competent") military tribunals. Or, less euphemistically, Rice's pals setup some kangaroo courts; and she wants this fact to excuse her for holding thousands of mostly innocent people in concrete cells for years on end without providing them timely legal recourse.

Theatrically, Rice won the confrontation. But the cold light of later reflection exposes her rejoinders as total trash. The medium of video is not well-suited to reasoned argument.

On banning prostitution (of a particular sort)

So, this Spitzer thing. Much commentary from male writers on the broader issue of prostitution and the merits of legalizing it; you may fruitfully begin your traversal with Ezra Klein or T. Cowen or even A. Tabarrok (whom I usually find odious).

My comment is simple and not at all original. There are many different ways of exchanging money for intimacy — physical or otherwise — that are not only legal, but mostly socially accepted, as long as one does them discreetly.¹ Here are some of them:

• It is legal to pay someone to go out on a date with you, and even be physically intimate with you (hugs, kisses, cuddling, etc.), as long as there is no explicit quid pro quo w.r.t. genital contact.
• It is legal to pay someone to give you a sensual massage, as long as the massage does not involve direct prolonged genital contact.
• It is legal to pay someone someone to strap you to a bench and strike you with a whip for your sexual satisfaction.
• It is legal to pay someone to take off their clothes and dance in front of you for your sexual satisfaction.
• It is legal to pay someone to perform arbitrary sex acts on camera with you, and then either sell or give away the video.
• It is legal to have sex with someone who would not be having sex with you if you did not buy them many gifts and support their lavish lifestyle. (Fun personal note: I have a (female) friend who knows a girl who once said, quite frankly, "I am not going to sleep with a man until he has spent at least a thousand dollars on me." See also this Valleywag post. See also all four characters on Sex and the City, none of whom ever dated a $25k-annual-salary social worker as far as I know.)

The upshot is that everything is permitted, except the straightforward transaction of exchanging a modest sum of money for someone else to privately give you an orgasm by applying friction in the genital area. If you're sufficiently rich, or if your particular sexual kink does not require penetration, or if you like to have sex on camera, prostitution is legal for you. Laws against "prostitution" — which is to say, one very narrow subgenre of sexual commerce — are a hypocritical, hairsplitting exercise in moral hysteria and a massive waste of law enforcement resources.

Finally, I want to point out one more thing. The argument that (one narrow flavor of) prostitution should be illegal because it's closely linked to organized crime and human trafficking is a self-fulfilling prophecy.

"Prostitution" is undoubtedly tied to organized crime in part because society frowns upon it so much that respectable businesses don't want to be involved in it. Organized crime is fundamentally inefficient, due to unprotected property rights, unenforceable contracts, illiquidity of capital, and all the other standard problems that come with operating a business without the protection of a well-run modern government. If a business like McDonald's or Starbucks ran brothels, they would drive organized crime out of the market pronto. People like Nicholas Kristof heap opprobrium on "prostitution" and then bemoan the inevitable results, namely that women and girls get exploited by criminals.

This is roughly equivalent to the scam whereby Republicans get elected and trash the government every couple of decades, and then point to their own incompetence as proof of their ideology that government doesn't work. It is like pissing on the rug, and then complaining that the rug stinks of piss.²

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¹ Bonus link: The Purchase of Intimacy, by Princeton sociology professor Viviana A. Zelizer, has been on my to-read list for a long time. Perhaps I will finally order it.

² In fact, I hereby coin a new term for this fallacy of reasoning, akin to "poisoning the well" or "begging the question": "pissing the rug". To piss the rug is to endorse a course of action which leads to a bad outcome, and then blame those who disagree with you for the bad outcome. The grandest example of pissing the rug in recent times is, of course, the Iraq War apologetic wherein liberal war opponents are blamed for the bad consequences that would follow withdrawal. Oh, wait — Kristof did that too. Maybe we should just call it the Kristof Maneuver.

.sft: A proposal for software patent reform

As follows:

1. Software companies that wish to protect their intellectual property register with a new ICANN gTLD, .sft.
2. A .sft receives "IP points" every time it produces a "significant" software innovation. For example, every time a .sft publishes a peer-reviewed paper in a major computer science conference, that .sft gets 100 IP points.
3. Any .sft may "sue" another .sft at any time, for any reason, for any quantity of money.
4. Lawsuits are settled by best-of-7 tournaments of StarCraft. A .sft's designated StarCraft player ("IP lawyer") starts each match with a bonus quantity of minerals, Vespene gas, and peons determined by a time-weighted function of the .sft's IP points. The victor wins a fraction of their client's requested damages determined by the ratio of their buildings razed, units constructed, etc. vs. their opponents'.
5. IP lawyers may play Protoss, Terran, Zerg, or random race, at their discretion.

The merits of this reform are obvious. Much like patent law, StarCraft is governed by a system of arcane rules that are mostly irrelevant to the actual process of writing innovative software. Much like patent law, StarCraft's rules can only be mastered by a caste of professionals whose expertise is honed over years of practice. Unlike the legal system, however, StarCraft is swift, decisive, objective, and exquisitely balanced for fairness. Any minor loss in the quality of judgment on the margin would be overwhelmed by the reduced transaction costs of the system as a whole.

I can already hear the objections of the closed-minded, and I will respond to them in turn.

• Q: You're introducing perverse incentives. Companies with better StarCraft players will beat companies who write better software!
  A: Paying for quality StarCraft players would simply be a cost of doing business, no different from hiring secretaries or accountants or paying your electric bill. Even though the market value of Starcraft skills would temporarily skyrocket, StarCraft does not have a government-sanctioned professional guild that artificially limits the labor supply, so in the long run the cost would still be lower than for ordinary lawyers. Anyway, if some company hires bad StarCraft players, the management's incompetent and the company deserves to lose in the marketplace, regardless of how innovative their software developers are.
• Q: What's to stop the emergence of "IP trolls" who never innovate, but hire a lot of expert StarCraft players to sue everyone?
  A: First, only companies with substantial independent revenue streams would be able to compensate StarCraft players well enough to attract really good ones. Second, beyond a certain point, the bonus resources granted by accumulated IP points would produce an overwhelming advantage for companies that produce innovation.
• Q: Wouldn't this give an unstoppable advantage to software firms in South Korea, which has an impressive national lead in competitive StarCraft talent?
  A: So what? The international distribution of firms holding technology-related patents in the past two decades has not been even remotely equal. Established United States firms like IBM and Microsoft hold vast patent portfolios, dwarfing those of firms in developing nations, and WIPO has been aggressively working to bring developing nations under First World IP regimes. Yet the software industry remains steadfastly innovative around the globe. Over time, other nations would earn IP points and develop local StarCraft talent, evening the score. In any case, freezing the rules over an unequal or even larcenous initial distribution is the very essence of property: if a Native American robber breaks into your home and takes your television, will you refrain from pressing charges when he's arrested?
• Q: Your proposal permits any .sft to sue any other .sft, without any basis for infringement. That's absurd!
  A: Under the present system, lawsuits claiming intellectual property infringement can drag on for years and cost millions of dollars even if the plaintiff never specifies exactly what was infringed upon. By permitting any .sft to challenge any other .sft, we remove the fig leaf of "cause of action", which (let's face it) is mostly just embarrassing. Also, as noted above, .sft lawsuits would be swift and decisive, so the transaction costs would be low even for frivolous lawsuits. That said, I am not completely opposed to a ladder system, to save highly skilled lawyers from being constantly challenged by lowbies.
• Q: IP points would give an unstoppable advantage to entrenched encumbents with deep IP portfolios. What's to stop them from suing everyone?
  A: Under the present patent system, IBM, Microsoft, or any number of other entrenched players with deep patent portfolios could hypothetically destroy the entire software industry in a convulsive paroxysm of lawsuits. Yet they choose not to, because suing everyone in the industry would result in "mutually assured destruction": everyone would countersue everyone else and everyone would lose. I see no reason that .sft lawsuits would be any different.
• Q: What's to stop incumbents from suing little startups that have lower-tier StarCraft players and few IP points?
  A: Startups today usually have small to nonexistent patent portfolios, but big companies don't find it worth their time to sue them because they also have very few assets worth confiscating. As a startup grows more successful and its pockets get deeper, it should be able to afford to hire StarCraft talent and accumulate IP points, just as companies today accumulate patents and other IP as they grow bigger.
• Q: The software industry's incredibly innovative to date, and your reform would bring it under a radically new legal regime. How can you be sure it won't stifle innovation?
  A: How can you be sure it will stifle innovation? There's ZERO evidence that it would. Imagine if we'd listened to such naysayers back when software patents were proposed. Don't you think the burden of proof is on the opponents of regulation, rather than on the proponents?
• Q: StarCraft 2 is coming out soon. How does that affect your proposal?
  A: StarCraft 2 is currently an unknown quantity, whereas Starcraft is a classic that has withstood the test of time. That said, we should keep an open mind about the gameplay innovations, and if they prove to be successful I am not opposed to adopting the sequel someday. For one thing, the improved graphical sophistication would make lawsuits more entertaining for bystanders to watch.
• Q: Halo would be more exciting than Starcraft.
  A: Fuck off, frat boy.

Catharine MacKinnon's bag of dead leaves (an extended rumination)

Bookslut, which I normally prize for the Suck-esque consistency of its witty snark, today points approvingly to Catharine MacKinnon's interview by the Guardian's Stuart Jeffries.

Now, I went into this interview with no preconceived ideas about MacKinnon, as I had forgotten who she was. To me, for the moment, she was not that infamous writer who characterizes pornography as "sex discrimination" and "violence against women" (ideas usually attributed to Andrea Dworkin, but shared by MacKinnon). For the moment, she was just some random feminist that Jessa Crispin found interesting. Then, in Jeffries's first paragraph I read the following:

Of all the provocative passages in Catharine MacKinnon's new book Are Women Human? the following hit me hardest. She writes: "[T]he fact that the law of rape protects rapists and is written from their point of view to guarantee impunity for most rapes is officially regarded as a violation of the law of sex equality, national or international, by virtually nobody."

The first thing that struck me about this passage was that MacKinnon writes terribly. The sentence completely dissipates its force in a thicket of subordinate clauses. Also, note the bracketed initial in "[T]he", indicating that only a fragment was quoted: in all likelihood, some equally verbose preceding clause obscured the passage even further.

The second thing that struck me was that the claims make no sense. Disentangle the above into more lucid English prose, and you get the following:

Rape law is written from rapists' point of view. As a result, rape law protects rapists to such a great extent that it guarantees impunity for most rapes. Almost nobody officially regards this fact as a violation of the national or international law of sexual equality.

The first claim is false; the second claim is a misleading spin on a kernel of truth; and the third sentence is meaningless if the "fact" in question is not a fact.

In what sense are rape laws written from rapists' point of view? Jeffries describes MacKinnon's answer:

Are you suggesting that rape law enshrines rapists' points of view, I ask MacKinnon? "Yes, in a couple of senses. The most obvious sense is that most rapists are men and most legislators are men and most judges are men and the law of rape was created when women weren't even allowed to vote. So that means not that all the people who wrote it were rapists, but that they are a member of the group who do [rape] and who do for reasons that they share in common even with those who don't, namely masculinity and their identification with masculine norms and in particular being the people who initiate sex and being the people who socially experience themselves as being affirmed by aggressive initiation of sexual interaction." She takes a well-earned breath.

Jeffries seems (or pretends to be) thoroughly impressed at MacKinnon's verbal avalanche. I'm pretty sure this is some kind of dry British sarcasm on Jeffries's part, but I'm an ex-New Yorker, so I'm just going to call the fast-talking b.s. by its proper name. MacKinnon's saying that when she wrote that "rape law is written from rapists' point of view", she meant that rape law is written by men. Since rapists are men, the reasoning goes, it necessarily follows that anything that men do must reflect the point of view of rapists. This is a comically unsound chain of inference [0]. By the same logic, I can demonstrate that since Hitler was a vegetarian, vegetarian cookbooks reflect a secret program to exterminate the Jews.

Okay, maybe that's not entirely fair. The link between "aggressive initiation of sexual interaction" and rape is somewhat more plausible than the link between non-consumption of meat and genocide. But it's still vague guilt-by-association. Merely pointing out that men tend to aggressively initiate sex does not constitute any kind of argument that rape law reflects the views of rapists.

A sound argument supporting this allegation would have to do two things:

1. Identify a view held by rapists, but not by non-rapists [1]. I emphasize the latter clause because it's trivially obvious that rapists and non-rapists share many views. For example, I believe that the sky is blue, and I'd venture to guess that virtually all rapists also believe that the sky is blue. In some sense, therefore, the observation that "the sky is blue" is a view held by rapists; but it is not "a rapist's point of view" in any meaningful way.
2. Identify some aspect of rape law reflecting that view.

Does MacKinnon do either of these things? Well, not really. Jeffries lets her off the hook for a while, but returns to the subject later in the article:

Otherwise, she contends, unenlightened men still write the laws. And when, for instance, they write laws on rape they make what she believes are grotesquely sexist assumptions. "The assumption," she says, "is that women can be unequal to men economically, socially, culturally, politically, and in religion, but the moment they have sexual interactions, they are free and equal. That's the assumption - and I think it ought to be thought about, and in particular what consent then means. It means acquiescence. It means passivity. You can be semi-knocked out. You can be dead in some jurisdictions."

I almost choke on my mineral water. Dead and giving consent? "Sex with a dead body is necrophilia but it isn't regarded as rape." Oh, I see. "You can be semi-comatose, not to mention married in many places, and be regarded as consenting whenever sex takes place."

MacKinnon thinks consent in rape cases should be irrelevant. Women are so unfree that even if a woman is shown to have given consent to sex, that should never be enough to secure an acquittal. Why? "My view is that when there is force or substantially coercive circumstances between the parties, individual consent is beside the point; that if someone is forced into sex, that ought to be enough. The British common law approach has tended to be that you need both force and absence of consent. If we didn't have so much pornography in society and people actually believed women when they said they didn't consent, that would be one thing. But that isn't what we've got."

What does she mean - how does pornography affect this? "Pornography affects people's belief in rape myths. So for example if a woman says 'I didn't consent' and people have been viewing pornography, they believe rape myths and believe the woman did consent no matter what she said. That when she said no, she meant yes. When she said she didn't want to, that meant more beer. When she said she would prefer to go home, that means she's a lesbian who needs to be given a good corrective experience. Pornography promotes these rape myths and desensitises people to violence against women so that you need more violence to become sexually aroused if you're a pornography consumer. This is very well documented."

At this point, I simply must digress a bit, because I find the above paragraphs almost physically painful to read. Reading involves a form of ego-submission: while you read, one of your mind's interior spaces actually recapitulates the text. In some sense, while you read, the writer's voice becomes your voice; the writer's thoughts become your thoughts. In order to read the above passage, I must force myself to emulate the hazy, confused, babbling fugue of free-associative nonsense that passes for thought in MacKinnon's mind. And it is painful. It's the mental analogue of wearing a hairshirt.

The best way to describe MacKinnon is this: her brain is broken. Broken rules of inference are embedded in her tactics of thought. Jeffries writes that MacKinnon's widely regarded as "bright" and that she completed a Ph.D. in political science at Yale. So she's probably smart in the limited sense that, given some seed premises, her brain can rapidly sprout a collection of thoughts related to those premises. The problem is that the thoughts have no connective tissue of logic binding them together. MacKinnon's reasoning resembles a valid argument in much the same way that a trash bag full of dead leaves resembles a tree.

Okay, enough digression. Now I'll talk about her actual statements.

First, let us quickly dispose of the bizarre digression on necrophilia. Our society has customs and laws regarding the treatment of corpses. For example, Chapter 9A.44 (sex offenses), Section 105 of the Revised Code of Washington classifies "sexual violation of human remains" as a class C felony. But corpses are not human beings, and so of course performing sexual acts on a corpse is not "rape". I honestly cannot imagine what MacKinnon hopes to accomplish by conflating corpse desecration with rape. MacKinnon seems to think the distinction illuminates society's misogyny, but that strikes me as a non sequitur so extreme that it borders on paranoid schizophrenia [2].

Next, consider the issue of "force" versus "consent". This is a little sticky, because Jeffries does not give MacKinnon's exact words in full, but judging by his rendering, MacKinnon's analysis is utterly confused. She claims that society makes it impossible for a woman not to consent, since even non-consent will be interpreted as consent. Therefore, laws should be crafted to ignore consent, and to examine instead whether any element of "force" was involved.

But that's nonsense in at least two different ways. First, it is possible for a woman to signal consent, and it is possible for the absence of consent to be discerned. If these things were not possible, then the rate of rape convictions would be zero. For various reasons, rape reporting and conviction rates are low (this is the "kernel of truth" that I alluded to above), but the solution is not to eliminate the notion of consent; it's to educate people more effectively about consent. Which brings me to my second point: it's conceptually incoherent to invoke the notion of "force" while discarding the notion of consent.

The word "force" carries an implication of coercion, or the absence of choice. But unless one is willing to deny that choice exists at all [3], coercion can only be defined in opposition to consent. The negative is meaningless without the affirmative. How, then, can legislators, judges, or juries possibly make a judgment that "force" occurred, without considering whether consent occurred? If we discard consent, there's literally no possible way of distinguishing between "force" and non-"force". (And, incidentally, no distinction between an accusation and the evidentiary burden required for conviction.)

On the other hand, although force requires the absence of consent, the converse is not true: absence of consent does not require force. A sex act involving someone who is incompetent to consent --- for example, someone who is mentally retarded --- need not involve physical force, or even the threat of emotional abuse.

In other words, "absence of consent" actually describes a strict superset of the set of situations involving "force". Furthermore, under modern law, the absence of consent is broadly construed. Not that you'd know this from MacKinnon's interview.

MacKinnon would like us to believe that "You can be semi-knocked out" and still be judged to have consented. Well, I admit that judges and juries in America can be highly imperfect in enforcing the law, and that laws were once pretty bad. However, taking Washington State again as an example, 9A.44.050 of the Revised Code of Washington currently states that if a person's "incapable of consent by reason of being physically helpless or mentally incapacitated", then engaging in sexual intercourse with that person is rape in the second degree, and hence a class A felony. Penalties for class A felonies range up to life imprisonment and a fine of fifty thousand dollars.

MacKinnon would like us to believe that the law doesn't recognize that "force or substantially coercive circumstances between the two parties" implies rape. Well, look again at 9A.44.050 RCW, and you discover that "forcible compulsion" is sufficient to establish rape. 9A.44.010 RCW defines "forcible compulsion" as "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped." If somebody threatens you or anybody else with physical injury, no matter how slight the injury or indirect the threat, and sexual intercourse results, the law calls it rape. [4]

MacKinnon would like us to believe that the legal definition of consent is infinitely elastic --- that the law would affirm arguments like "when she said no, she meant yes" or "when she said she would prefer to go home, that means she's a lesbian who needs to be given a good corrective experience". Again, that's simply ridiculous. By 9A.44.060 RCW, rape in the third degree, a class C felony, includes any form of sexual intercourse not involving consent. Consent is defined by RCW 9A.44.010 as "actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact". Coerced agreement is not consent; the absence of physical resistance is not consent; only affirmative "words or conduct indicating freely given agreement" constitute consent. Saying no, or that you'd like to go home, handily establishes the absence of consent.

So, what about this "sexual intercourse" business? Does that phrase leave weasel room for a rapist to argue that some act was not rape because he didn't go "all the way"? Once again, RCW 9A.44.010 says:

(a) "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

Admittedly, I can think of sexual acts that aren't covered by the above, but I can also appreciate the difficulty in writing a law that covers every conceivable sex act. And other sections of RCW proscribe assaults, sexual or otherwise, which do not satisfy the definition.

Basically, in the State of Washington, the law entitles you to be physically secure against any violation of your body. Modern rape law is relatively comprehensive and well-written, due in no small part to the actions of the feminists who helped craft it. It is slander against both feminism and the legal profession to give an impression as misleading as the one MacKinnon gives.

Are the laws perfect? No. Do they "guarantee impunity for most rapes" and constitute "a violation of the law of sex equality"? Pffft.

Anyway, this post has gone on too long. And MacKinnon has still failed to articulate a single way that rapists' views are reflected in rape law. I don't really have time to get into MacKinnon's deeply confused and factually mistaken discussion of pornography. So, I'll conclude by considering the wince-inducing attempt at emotional manipulation that Jeffries documents at the end of his article:

MacKinnon's book ends with a wonderful rhetorical essay called Women's September 11. It points out that roughly the same number of women are murdered by men in the US each year as were killed in the Twin Towers (between 2,800 and 3,000). But those killings provoked no parallel war on terror.

So what does MacKinnon think should be done? She writes that violence against women "qualifies as a casus belli and a form of terrorism every bit as much as the events of September 11 do". Is she serious that violence against women should be treated as a war? "I think only because it's men doing it against women that it isn't seen as a war." I feel another twinge of vertigo.

I've only read a tiny bit of the scholarship on terrorism, so I'm no expert. But I'm pretty sure no serious definition of terrorism would include random murders, committed in civil society, by a massively dispersed group of individuals (i.e., men), without any unifying organization or motive, against an incredibly broad variety of unrelated targets (i.e., women), without any self-conscious intention to manipulate the media or body politic.

So why make the comparison? MacKinnon has a bad case of Rhetorical 9/11 Parasitism.

Rhetorical 9/11 Parasitism is what I call the rhetorical use of the September 11 attacks, and their explosive emotional impact, to lend weight to some unrelated issue. Or, in other words, If I Don't Get My Medium-Rare Shell Steak With Roasted Vegetables In The Next 10 Minutes, The Terrorists Have Already Won. The grandest extant case of 9/11 Parasitism was, of course, the rhetorical circus held by the Bush administration before the invasion of Iraq. MacKinnon's version is rather paltry by contrast: rather than a literal war, she merely wants to undertake a metaphorical War on Violence Against Women.

Of course, when one invokes the metaphor of war, one invokes not only the expectation of all-out effort, but a whole constellation of associated concepts. To pick just a few:

• Wars justify the suspension of ordinary legal norms and even basic, primal human taboos (like "thou shalt not kill").
• Wars are organized by central planners against external enemies, not by individuals against the members of their own neighborhoods or households.
• Wars end.

In short, the idea of war suggests tactical and strategic expectations that --- need I really say this? --- simply aren't appropriate to solving most problems in civil society. Hence the clichéd observation that most metaphorical wars don't work very well, as metaphors or as wars: the War on Poverty, the War on Drugs, the War on Terror. Like poverty, drug use, and terror, violence against women isn't caused by an organized enemy that can be defeated with force, and thereby induced to sign a treaty of surrender. So why would anyone believe that recasting the problem of violence against women as a war would lead to progress?

More to the point, why does Catharine MacKinnon believe this?

Well, OK, that's a rhetorical question, and you know what I'm going to say. Catharine MacKinnon believes these things because she's an idiot.

---

[0] More precisely, it assumes the (bogus) rule that if A and B are subsets of C, then any property of B must necessarily be shared by A.

[1] Well, reality is probabilistic, so, more precisely, one must isolate a view that is relatively correlated with being a rapist and anti-correlated with being a non-rapist.

[2] Seriously, what's the deal here? Is she worried that necrophilia's some kind of "gateway drug" to rape? Is there some hidden national epidemic of necrophilia that I haven't heard about? Worrying about necrophiliacs when you talk about rape is like worrying about lesbian Nazis when you talk about anti-Semitism. Lesbian Nazis probably exist, and they're probably anti-Semites, but they're not exactly the heart of the anti-Semitism problem, and you would have to have some pretty weird issues even to bring it up.

[3] I don't believe in free will, so in some abstract philosophical sense I would agree that choice doesn't exist. However, as a practical matter, the social fiction of free choice undergirds most of the law, including the laws governing contracts, property, and the democratic process itself. By default, the law assumes that the decisions of mentally competent adults have meaning, and that actions affirming these decisions have a binding effect. Hence, when women vote, sign contracts, buy property, choose careers, or grant interviews to newspapers, the law treats their decisions as meaningful ones.

Now, the outward signs of consent can themselves be coerced --- e.g., someone can put a gun to your head and make you sign a contract. So the law carves out specific, narrow exceptions for "false consent": when you're under physical duress, when you're mentally incapacitated, etc., the law ignores evidence of consent. But it is absolutely crucial to the rule of law that these exceptions be narrowly targeted, and based on objectively observable criteria, rather than applying categorically to a vast and vaguely specified set of situations or people.

I suspect that MacKinnon believes that women can only freely consent to sex with men in the absence of sexual power inequalities, and therefore the law should disregard evidence of their consent. This is a catastrophically bad idea. Every society since the dawn of humanity has suffered from power inequalities, and virtually every human relationship involves some element of inequality. Yet society has generally found it useful to treat adults' decisions as meaningful anyway.

Recall what Jeffries writes of MacKinnon:

"The assumption," she says, "is that women can be unequal to men economically, socially, culturally, politically, and in religion, but the moment they have sexual interactions, they are free and equal. That's the assumption . . ."

MacKinnon's utterly mistaken. The law assumes no such thing. No law governing consensual transactions assumes that the two participants in a transaction must be on absolutely equal footing. It would be nice if most people were more pairwise equal than they are, but the rule of law cannot wait for utopia. To be useful, the law must govern, and give force to people's decisions, in the imperfect societies that exist now.

And, in fact, most groups have generally benefited when society treats their decisions as meaningful. People usually fight for the freedom to vote, to enter into contracts, to buy property, and --- yes --- even the right to consent to sex. Being over eighteen, I certainly appreciate the fact that I can have sex without fearing that my partner will be jailed for statutory rape. I suspect that most adult women also enjoy having that right.

[4] What about non-physical forms of coercion? Again, read the rest of 9A.44 RCW and you'll find that people in "supervisory positions" over children, the developmentally disabled, or other people dependent on assistance, cannot have sex with their charges. You'll also find that 49.60 RCW defines unfair practices for employers, which the courts have held to establish civil remedies for sexual harassment --- which, OK, does not classify the behavior as rape, but I have major problems with MacKinnon's propensity for calling everything rape, from corpse desecration to pornography to sexual harassment. Sometimes there's value in preserving distinctions among the meanings of different words.

Respectable arguments against same-sex marriage

Random late-night browsing whilst procrastinating w.r.t. proofreading a camera-ready copy of a paper: as a thought experiment Belle Waring constructs an intellectually non-ridiculous argument against same-sex marriage; and (linked from the above comment thread) a plea for intellectual humility from Jane Galt, of all people, that's also not entirely ridiculous.

I have two reactions. First, any intellectually honest person who opposes same-sex marriage for the linked reasons should also support denial of marriage benefits to childless heterosexual couples. But opponents of same-sex marriage won't come out against childless heterosexual couples. Why not? Because society views childless heterosexuals (unlike homosexuals) as first-class citizens, and therefore, it would be incredibly unpopular to infringe on the autonomy of heterosexuals. People believe that heterosexual couples have a right to choose both marriage and childlessness for themselves. Besides, some childless heterosexual couples are childless for painful personal reasons; adding insult to injury by denying them marriage benefits seems beyond the pale. I could say closely analogous things for committed homosexual couples --- that they have the right to choose marriage, and that denying them benefits is cruel --- but the anti-same-sex-marriage forces wouldn't care. Therefore, let's admit the role that power, stemming from bigotry, plays in the acceptance of even the relatively respectable arguments proposed by Galt and Waring: although we would not treat heterosexuals this way, we will treat homosexuals this way, because it is popular to do so, and therefore we have the power to do so.

Second, on a somewhat different track, I want to make a larger point, which is that sometimes the well-being of society simply must defer to individual rights. Individuals are ends-in-themselves, whereas society is a means to furthering the ends of individuals. If guaranteeing individual rights commensurate with our values ultimately leads to the breakdown of society, then so be it.

It is conceivable that a society built upon individual autonomy, civil liberties, and equality before the law cannot be sustained indefinitely. It is conceivable that on the grand scale of history, each era when such institutions prevail is a brief interlude, like foam on the crest of a wave, which inherently rises and then subsides, whereas discrimination and oppression are a sturdy bedrock which endures. It is conceivable that the American experiment in constructing ever-widening circles of social equality contains the structural causes of its own collapse, and that it will therefore recede and be replaced by something more morally repugnant and more sustainable.

So what? Happiness is always finite, but at least it is happiness. Most love affairs contain within them the seeds of their own destruction, but this does not compel us not to love. If equality before the law cannot endure forever, then at least we're lucky enough to have lived in a time when it prevailed. Maybe in some distant future, after same-sex marriage and America's million other concessions to the pursuit of individual happiness have destroyed America, and some dark millennia have passed without us, some other people will, for a fleeting few centuries, be lucky enough to live in such an era again. If so, then I hope that they, too, refuse to destroy their happiness in order to save it.