That slippery word "liberty"

A perusal of the transcripts of the oral arguments in Tuesday's same-sex marriage case in the U.S. Supreme Court revealed several odd moments, and one of the oddest occurred at the very opening of John Bursch's argument for the state of Michigan. Here is how Bursch began:

This case isn't about how to define marriage. It's about who gets to decide that question.

Is it the people acting through the democratic process,

or is it the Federal courts?  And we're asking you to

affirm every individual's fundamental liberty interest

in deciding the meaning of marriage.

In the language of U.S. constitutional law, a "liberty interest" typically refers (doesn't it?) to a 'negative freedom' -- a freedom not to be interfered with -- not to a 'positive' right to "decide" something. At least, that has been my impression. From this standpoint, it's not surprising that Justice Sotomayor immediately jumped in and said to Bursch that a defeat for his client (the state of Michigan and its ban on same-sex marriage) would not take anyone's liberty away. 

But Bursch seemed not to be referring to the Fifth and Fourteenth Amendment language about not depriving anyone of liberty without due process. He meant something else. He was asserting that individuals have a "fundamental liberty interest in deciding the meaning of marriage." Can that possibly be right?

In a constitutional democracy (a phrase used by Justice Kagan in the course of the argument), individuals have no "fundamental liberty interest" in deciding policy questions. There is a general right to vote, of course, and there is a right to speak and assemble and to engage in other forms of individual and collective political action, but there is no right to have a direct say on every policy question that governments face, even one as (supposedly) significant as the definition of marriage. After Sotomayor's intervention, the asserted "fundamental liberty interest in deciding the meaning of marriage" pretty much vanished from the argument and the exchanges between the lawyer and the Justices; it may have been so strange-sounding that everyone tacitly let it drop.

Still, behind the odd language about a "fundamental liberty interest in deciding the meaning of marriage," Bursch did have a more intelligible (if not especially convincing) claim: that "the people acting  through the democratic process," not the federal courts, should decide on the definition of marriage. But it's not clear why that should be the case. As Kagan said (though not in these exact words), the Constitution puts limits both on the substantive decisions people can make and on what sorts of questions they get to decide.

No doubt these issues were explored exhaustively in the briefs that were filed in the case (none of which I've read), but the oral argument itself, which could conceivably have turned into a contentious seminar on democratic theory, was too choppy and disjointed to approach anything like that. Plato was mentioned (by Justice Alito at the outset), but the names of no other political theorists, classical or modern, came up in the argument. Maybe their ghosts were hovering around. Or maybe not.

Buried in the wrap-up

Amid the more pressing news of the day yesterday -- the revelations about the deaths of Weinstein and LoPorto; the EU and the migrant crisis -- there was this in the PBS NewsHour's opening summary:

There’s word that North Korea may already have 20 nuclear warheads – and the ability to double its arsenal by next year. An account in the Wall Street Journal says Chinese nuclear experts relayed that estimate in a closed-door meeting earlier this year. North Korea has carried out three nuclear tests in recent years.

Would it matter if the DPRK had 200 nuclear warheads? (I mean, who gives a ****?) Remember all the hand-wringing over the seemingly endless on-again off-again six-party talks? If they were ever to resume, one wonders what kinds of things N. Korea would seek in return for a commitment to dismantle the 20 (or however many) warheads it has. I think, though, the DPRK probably isn't going to give up its nuclear arsenal anytime soon. Its utility is as a (perceived) guarantee of survival, at least vis-a-vis (perceived) external threats. The regime of Kim Jong Un has not much else to crow about. (This reminds me that some weeks ago in a library I ran across an English-language South Korean-based publication that follows developments in North Korea. One of the featured articles on the cover referred, if I recall correctly, to the "alleged" marriage of Kim Jong Un's sister. A bizarre-sounding headline, but I was pressed for time and didn't read the story.)

No 'linkage'

I've said before that I don't think reaching a nuclear deal with Iran means that Iran will (or should) become a U.S. "partner" in the region.  This seems to be a hard point to get across, judging from recent discussions of policy toward Iran that I've encountered (I'm not giving specific refs. now, perhaps later).  A nuclear deal does not imply that the P-5 countries would thereby approve of any aspects of Iranian foreign policy.  A nuclear deal would not legitimize Iranian support of Hezbollah, for instance.  I'm not entirely sure why various people seem to find this so difficult to understand, unless they're pretending not to do so because such a pretense serves their purposes.

ISIS now denies responsibility for Jalalabad

Via FP's South Asia Daily for April 22, linking this.

ISIS claims responsibility for Jalalabad bombing

Here.

(p.s. Haven't forgotten I still owe a comment on previous post. Update: Comment now added.)  

Shocked

Just over at the Duck and I see that Prof. Busby, in the Disqus thread attached to his post on the Iran nuclear framework deal, links to Kissinger and Schultz pieces in WSJ that apparently express rather serious (pulls a serious face) doubts about the framework.  I haven't read the pieces -- for one thing, I assume they're gated; for another, life is too short -- but, to paraphrase Major whatever-his-last-name-was in that famous movie whose name I don't even have to mention, I'm shocked, shocked that Schultz and Kissinger have taken to the WSJ to express doubts about the framework.

Rude awakening

The cherry blossoms are out here, the fairly horrible winter is over, and at about 5:45 this Sunday morning some people -- presumably young men; who else would be such jerks? -- decided to rev their hot rod's engines very loudly and continuously for roughly fifteen minutes -- though it felt more like an hour.  Eventually I saw a police car cruising around, but by then the malefactors were gone.  If you infer from this that I do not live in one of the fancier suburbs of Washington, D.C. -- the sorts of places wherein reside (some of) the people who make (some of) the policies often critically examined on this blog -- well, you are so damn right.

How not to make fun of Rumsfeld

Even occasional readers of this blog know that I am no fan of Donald Rumsfeld, and that's an understatement.  However, to twit him (via) for a brief memo he sent in April 2003 to Douglas Feith, then undersec of defense for policy, seems a little misplaced.  Yes, the memo is very short and easy to laugh at; on the other hand, Rumsfeld presumably liked the idea of short memos.  Can't say that, in itself, was bad.  It's the policies that were the problem, not the length of the memos (or, in this case, some of the content of the memo). 

Btw, I see from the FP South Asia Daily (that I get but am always behind on reading) that the Obama admin's proposed budget for the next fiscal year would cut U.S. aid to Pakistan by 10 percent (though the overall figure remains relatively substantial, albeit considerably below aid to Afghanistan, of course.)

One thing at a time

Update (4/8): Just to mention that N. Lees, who has occasionally commented here, has resumed posting at his blog; his posts are always worth reading. 

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In the wake of the Iran nuclear 'framework' announcement, a couple of commenters at Internet sites I occasionally visit have suggested that Iran would make a good 'strategic partner' (in the words of this commenter) for the U.S., because the U.S. and Iran share interests in, among other things, opposing ISIS and Al-Qaeda.  That may be, but there are other issues (e.g., support of Hezbollah and of Assad) where U.S. and Iranian interests diverge.   Note also that when Iran was heavily involved in aiding the Iraqi army's recent effort to retake Tikrit from ISIS, the U.S. hung back; when Iraq requested U.S. airstrikes after the offensive had stalled, Iranian involvement in the offensive apparently diminished (I say "apparently" because I'm sure that the situation on the ground was extremely tangled and complicated and I did not even try to follow it closely). 

In short, I don't think the "let's make Iran our new strategic partner in the region" response makes a lot of sense.  It's the opposite of those who are groundlessly concerned that reaching a nuclear deal with Iran somehow amounts to recognizing its putative hegemony in the region.  Carts should not be put before horses.  Get the nuclear deal done and see how that goes, then worry about broader issues of the future of U.S.-Iran relations.  The amount of time it took to get the U.S.-India nuclear deal ironed out -- a civil (i.e. non-military) nuclear deal with a country that the U.S. has much better relations with than it does with Iran -- would suggest that no one should think implementing the details of the Iran 'framework' is going to be especially easy.

The 'framework'

Those who follow such things seem to think that the framework agreement on Iran's nuclear program is more detailed than was expected, which raises the chances that the remaining details can be resolved between now and June.  I can't say the details are all that crucial for me, since I think the dangers of Iran's nuclear program have been considerably exaggerated, but they are crucial for some people, including the parties to the talks.

If a successful conclusion is reached in June and if Congress can be kept from mucking up the works, it will be a clear triumph for all the  parties.  Among other things it will be a foreign policy win for the Obama admin, whose foreign policy record to date has been very mixed (at best).  But I would be wary of concluding that the path would then be open for quick normalization of U.S.-Iran relations.  Normalization of U.S.-Cuba relations, which has been out of the headlines for a while now, is presumably going to be a fairly long process, and I see no reason to assume that the future course of Iran-U.S. relations will be different in that respect.