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« Redacting the Supreme Court | Main | The Prize No One Wants to Win »

October 10, 2004

Comments

A. Rickey

Prof. Heller:

Whilst I'll admit that harping on the "pre-911" thing is about as baseless as the continual "there will be a draft" refrain coming from the Democrats, there is actually a point of sorts here.

The thing is, prostitution and illegal gambling exist in most cities under a kind of benign neglect. A certain amount of activity is actually tolerated, and indeed, in Nevada prostitution at least is legal. And, of course, both activities have certain groups trying to make them legal and even culturally acceptable.

I agree that Kerry was trying to make the argument you're stating, but he certainly shouldn't have chosen two crimes as his example that many folks--libertarians, mostly--consider victimless. Obviously his metaphor didn't rest upon that particular quality of his chosen crimes, but their selection was thus spectacularly unwise, particularly given the wide panoply of endemic criminality that he could have chosen otherwise.

Kevin Jon Heller

Regarding Kerry's choice of words, I completely agree. The legacy, I guess, of his former career as a prosecutor...

Law Monkey

Poor analogy on Sen. Kerry's part, but poorer judgement on the part of the Republicans to make this an issue.

A. Rickey

Oh, I don't know if making an issue of it really is a poor choice for Republicans. It doesn't play well for Prof. Heller, but he's not a swing vote. Oddly, it won't play well for a lot of the more determined right-wing--we're as likely to know how it feels to be a victim of misinterpretation as not.

But I doubt it's going to move many swing voters for Kerry, and it will certainly focus some against him. The comparison between treating war as a security issue and a legal issue--between a watchman and a prosecutor--is a reasonable line by which to persuade swing voters.

Sure, that's pure cynical vote-catching, not any kind of principle, but given the patent BS that's floating out about "secret plans" to reinstate the draft, Republican judgment is hardly the only casualty of this campaign.

No.84

given the patent BS that's floating out about "secret plans" to reinstate the draft, Republican judgment is hardly the only casualty of this campaign.

A. Rickey: Are you so confident that a the draft will not be reinstated that you will make a moral pledge to join one of the armed forces if a draft comes about?

A. Rickey

No. 84:

Most certainly not. I'm not in the habit of making moral pledges, and I'm most certainly not convinced that stating that there is no "secret plan" to reinstitute the draft morally obligates me to join the military if a draft occurs. (For one thing, a draft could occur for reasons completely separate from a "secret plan." A Russian land invasion of Poland (and former Republics), for instance, which is unlikely in the extreme, but within the realm of the barely possible. And for another, the "secret plan" I was talking about was Rangel's bill, which has recently been voted down.)

On the other hand, you're asking if I think a future occurence is likely, and intimating that you think it's more likely than I do. In that case there's already a mechanism used by gentlemen for centuries to settle disputes about future occurrences and their likelyhood: the wager. Drop the false bluster about moral character and ante up, and then you'd be speaking my language.

After all, it's very easy for you to make a challenge like the one above in the form of a "moral pledge." But the question is, do you think it's so likely that you'd be willing to put up something that's the equivalent of a tour of duty in the armed forces? I mean, heck, if you're giving me even money odds on the occurrence of a draft within a defined date--say 2005?--it's a lot more tempting.

Of course, I should also point out that the above is most definitely not and offer in search of an acceptance, not because it's not a good idea, but because I'm sure Prof. Yin would be annoyed at anyone making wagers of quite possibly dubious legality on his blog. :)

No.84

I mean, heck, if you're giving me even money odds on the occurrence of a draft within a defined date--say 2005?

Hmmmm...7 years was good enough for Hawking and Preskill (http://www.newscientist.com/news/news.jsp?id=ns99996193). Since we probably have about 1/2 the IQ of them (and that's not an insult!), then maybe we should settle on 3.5 years? ;^>

But what is a money wager? My bet is you'll be making a lot of money by the time a draft comes. I hope that, if I want to, I will be making a lot of money when a draft comes.

That's my problem with lawyers and law students commenting about a draft: They have the least at stake. The wealthy and powerful can avoid service. It's the poor and voiceless that will suffer.

Saying, "I don't think a draft will occur unless Russia invades Poland, but even if a draft does occur, well, I won't promise to serve," isn't evidence of uprightness.

Before the war, we were looking for WMD's. Now the war was/is/became about freeing Iraq. It's unfair to change reasons post hoc. It's wrong to take a position when taking that position has no consequences.

If I could go back into time, I would ask a hawk, "If no WMD's are not found in Iraq - and I mean actual, not potential WMD's, will you admit we waged war for the wrong reasons." If the person says, "No," then, well, their reasons don't seem so compelling. I might wonder how confident they are in their justification for war.

If you are so certain that an outcome will not happen (and the outcome would only affect the poor, not people at law schools and law firms), then commit. Say, "A draft is so absurd that if a draft does happen, then I will take the high road and pledge service." It's easy to talk about the draft as an absurdity when, even if some outcome occurs, it won't affect us.

So, if you're not willing to make this pledge, then I have to wonder if you believe in your position.

Oh, and I already did 9-years in the USAR, got my commission, etc. So, my fear that a draft is probable (though not more likely than not) is based in large part on what I learned about OPTEMPO and personnel. Also note that a good friend (a West Point grad serving in Iraq with no axe to grind) agrees with my assessment. I assure you that if liberal law professors were the only group of people worried about Iraq, I would not be concerned.

A. Rickey

But what is a money wager? My bet is you'll be making a lot of money by the time a draft comes. I hope that, if I want to, I will be making a lot of money when a draft comes.

Who said anything about a money wager? It would be a perfectly suitable wager to say, for instance, that if a draft occurred, I would volunteer for the armed services (though at my age, I might not even be acceptable to the JAG), whereas if it did not occur, you yourself would never place another word on a web-page again. If, as you say, neither of us are hurting for money, it doesn't mean we can't hurt for something...

(That said, given the debt that law school gives one, I'm not so blaze about money wagers...)

There of course remains the fact that your not writing again does nothing particularly for me, so I probably wouldn't take that bet. (Not from you, anyway.)

If you are so certain that an outcome will not happen (and the outcome would only affect the poor, not people at law schools and law firms), then commit.

But that's an absurd position. What, precisely, are you committing to if the outcome does happen? Why is it only I who am under some "moral" commitment, one which has no particular moral component you've managed to argue? Particularly when the point of disagreement we seem to have is whether something is extremely unlikely or merely unlikely? Or does somewhere between "probable" and "not more likely than not" there sit some moral safety zone that keeps you from such a commitment?

Of course not: no such "moral duty" to "commit" to any such thing exists, no more so than if I predict that it won't rain tomorrow, I've got a commitment not to carry an umbrella outside when I wake up to pattering precipitation on my window. We are talking about predictions, and you're making yours and I'm making mine. If you want to put consequences on them, if you want to make duties, they should at least be reciprocal. Hence, the appropriateness of wagers over posturing.

Law Monkey

A. Rickey: When I say the Republicans are using poor judgement, I say that from a moral high ground. Prof. Heller called a spade a spade when the Dems attacked Pres. Bush for his comments. I agreed with him then, and I agree with him now.

The answer to the seperate question of "Will it work?" is yes. This is smart, albeit underhanded, politics. Both sides of the aisle are getting a spinnning work out this election, and I'm not talking bikes.

I'm a believer that Pres. Bush would win if there was no spin at all, and I would like to think that Sen. Kerry's supporters feel the same.

As to the issue of the draft: No way. Do we need more troops? Yes. Do we need the draft? No. The active duty troops don't people that don't want to be there. Having served alongside the conscripted Bundeswehr in Germany for three years, I can say this: great people, not-so-scary-army (although I did enjoy drinking beer and shooting machine guns with my Bavarian counterparts). I went to West Point (if that is a qualification to weigh in on the debate), my brother and sister went to West Point and are still in, and we all agree that there will be no draft.

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