Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of The Corporate Insider’s Guide to US Patent Practice, which provides a basic understanding of patent practice in the United States as it relates to both obtaining and enforcing patents. Macedo’s practice specializes in all facets of intellectual property law including patents, trademarks and copyrights.  In the article below he looks at “patent worthiness.”  Read his other OUPblog posts here.

Speed Dating is not the only issue that our nine Justices of the Supreme Court raised on November 9, 2009 to determine what types of processes should be entitled to “patent worthiness.” Justice Scalia wanted to know why, if the patent laws were intended to cover broad processes, weren’t there any patents filed in the 1800s relating to training horses.

At the time, as Justice Scalia rightly observed, the American economy was completely dependent on horses. In fact, during the late 19th Century commerce came to a standstill when approximately 99% of all horses in America contracted equine influenza. According to Greg Sabin’s February 13, 2009 article, “Nightmare on Wall Street: 4 Other Times Our Economy Tanked“, at the height of the pandemic “as many as 20,000 businesses failed, a third of all railroads went bankrupt, and unemployment spiked to almost 15 percent.”

Not surprisingly, as Justice Scalia suggested, there were many U.S. Patents issued in the late 1800s that taught different methods of training or breaking horses:

* U.S. Patent No. 247,296, to G.W. Blake, entitled “Harness” (patented September 20, 1881);
* U.S. Patent No. 381,745, to H. C. Woodnutt, entitled “Device for Assisting in Training Horses” (patented April 24, 1888);
* U.S. Patent No. 453,727, to H. Sample, entitled “Apparatus for Treating or Taming Horses” (patented June 9, 1891);
* U.S. Patent No. 478,513, to C.C. Kelly, entitled “Apparatus for Training Animals” (patented July 5, 1892); and
* U.S. Patent No. 545,228, to J.W. Green, entitled “Horse-Breaking Apparatus” (patented August 27, 1895).

While admittedly none of these patents claimed a method of training or breaking a horse, they all obtained patent protection for such methods by claiming the apparatus to do it.

There are various explanations of why these patents claimed apparatus instead of methods:

* In the 1800s, most patents were drafted in the form of apparatus or system claims, and not method claims, although the law allowed for method claims in the form of “arts.”
* It was much easier to detect infringement of an apparatus that was sold than to detect a method of performing acts. Thus, not surprisingly, one would be less likely to invest in method claims.
* Perhaps more importantly, the law was in flux as to what type of method claims were available. For example it was not until 1909, in Expanded Metal Co. v. Bradford, 214 U.S. 366 (1909), that the Supreme Court made clear that patent eligible method claims did not merely need to have chemical transformations, but could also include mechanical transformations.

Indeed, when the 1952 Patent Act was adopted, the law was drafted to define patent-eligible methods broadly. See 35 U.S.C. § 100(b). Thus, perhaps Justice Scalia would find it interesting to note that since the Act was enacted, many patents have issued which claim methods of training animals (including horses):

* U.S. Patent No. 3,099,248, to J.K. Giles et al., entitled “Methods of Training Horses” (patented July 30, 1963) (claiming “a method of breaking and training horses preparatory to racing”);
* U.S. Patent No. 5,566,645, to T.H. Cole, entitled “Animal Training Method and Apparatus” (patented October 22, 1996) (claiming “[a] method for training animals”);
* U.S. Patent No. 6,311,645, to J.S. Brown, entitled “Animal Training Method and Apparatus” (patented November 6, 2001) (claiming “[a] method of training an animal”);
* U.S. Patent No. 6,352,053, to D. Records et al., entitled “Apparatus and Method for Animal Testing and Training” (patented March 5, 2002) (claiming “[a] method permitting an observer to determine the bucking propensity of an animal such as a bull or horse”);
* U.S. Patent No. 6,568,940, to M. Mack, entitled “Equestrian Training Method” (patented May 27, 2003) (claiming “[a] method for equestrian training”);
* U.S. Patent No. 6,602,209, to D.H. Lambert et al., entitled “Method and Device for Analyzing Athletic Potential in Horses” (patented August 5, 2003) (claiming “[a] method for predicting potential performance in a selected racing or training animal”);
* U.S. Patent No. 7,107,939, to L.J. Lady, entitled “Animal Training Apparatus and Method” (patented September 19, 1996) (claiming “[a] method for training a four-legged animal”); and
* U.S. Patent No. 7,331,310, to K. Sersland et al., entitled “Domestic Animal Training Method” (patented Feb 19, 2008) (claiming “[a]n animal training method”).

Turning back the patent law to the uncertainty of the 1800s, when our economy was based on agrarian and early industrial technology, is not what our nation needs in this time of economic crisis.

The point is that any subject should be available for patent protection, whether it is Speed Dating, Horse Training, or Hedging Risk, so long it does not claim the subject in an abstract manner.

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below, he examines our nation’s concepts of vengeance and justice in light of alleged 9/11 mastermind Khalid Sheikh Mohammed’s forthcoming trial in New York City. See Lim’s previous OUPblogs here.

There are four reasons which have been supplied to suggest that Khalid Sheikh Mohammed (KSM) does not deserve a civilian trial in New York:

1. This is what KSM wants – a show trial, and he should not get what he desires.
2. The trial will increase the risks of a terrorist attack in New York.
3. Classified information will be released in a civilian court trial, to the benefit of potential future terrorists.
4. The injury KSM has inflicted is a war crime, and not a domestic criminal matter.

1-3 are unverifiable predictions, sub-points to the main point, 4, which is the motive force behind the considerable agitation behind Attorney General, Eric Holder’s decision. Those who oppose a civilian trial for KSM want vengeance more than they want justice. This is exactly what Michael Goodwin has argued:

“Either try the detainees in military courts on secure bases or, best of all, give them death now. Mohammed and some others already acknowledged guilt and said they were ready to die.

I say we take yes for an answer.”

Well, there we have it. Goodwin wants vengeance primarily, and justice only incidentally. Now, vengeance and justice are not unrelated. Vengeance presumes the existence of guilt, so the pursuit of vengeance can lead to justice. Indeed, in an anarchic, godless world of all against all, vengeance is the closest thing there is to justice. To speak of justice would be a categorical mistake because without the apparatus of sovereignty and law, it is a standard that stands on stilts. We say “Justice under the Law” because without law, justice is a meaningless concept.

Goodwin and others like Mayor Rudy Giuliani who want to deny KSM a civilian trial believe, though they have not fully articulated their reasons, that the international milieu exists as a state of nature in which there is no universal law and no universally accepted sovereign law-giver, and therefore, the pursuit of justice is folly and the pursuit of vengeance necessary. If there is neither legality nor illegality, then there is only strength and weakness. Vengeance will have to do. This is why Rudy Giuliani insists on the frame that we are a nation at war, that we are dealing with terrorists or “enemy combatants” and not what John Yoo called “garden-variety criminals.”

To be sure, in a government of laws such as in a liberal democracy, justice takes on higher attributes that vengeance does not (and cannot). While justice is about law; vengeance is about necessity because it privileges immediate judgment over the process that would deliver such a judgment. While vengeance gives specific solace to those who were injured, justice assures all citizens that the system in which they conduct themselves works, – i.e., while vengeance is pointed, justice is blind, and while vengeance is preponderant, justice is proportionate.

Well and good. But as we consider whether or not KSM should have been granted a civilian trial, we need to determine the context in which we make this judgment: is terrorism a domestic criminal matter or an act of war? If the context is the former, then the Constitution takes precedence and it makes sense to speak of justice and that is what KSM deserves. If it is the latter, then because there is neither universal law nor a sovereign law-giver in the international milieu, KSM will have to suffer our vengeance because justice is not an alternative.

We have not settled on an answer to this question of whether or not terrorism is a criminal or a war crime because our historical definition of war has not caught up with its modern incarnation in which deterritorialized non-state actors perpetrate acts of violence. Our discussion over what KSM deserves is a footnote to this larger debate.

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the health-care reform bill that the House passed. See his previous OUPblogs here.

Democrats must be thinking: what happened to the halcyon days of 2008? It is almost difficult to believe that after the string of Democratic electoral victories in 2006 and 2008, the vast momentum for progressive “change” has fizzled out to a mere five vote margin over one of the most major campaign issues of 2008, a health-care bill passed in the House this weekend. If you raise hopes, you get votes; but if you dash hopes you lose votes. That’s the karma of elections, and we saw it move last Tuesday.

Democratic Party leaders scrambled, in response, to keep the momentum of “Yes, we can” going, by passing a health-care reform bill in the House this weekend. But despite claims of victory, Democratic party leaders probably wished that their first victory on the health-care reform road came from the Senate and not from the House. President Obama and Speaker Nancy Pelosi have always hoped to let the Senate pass its health-care reform bill first, initiating a bandwagon effect so that passage in the House would follow quickly and more easily, and a final bill could be delivered to the president’s desk.

Instead, the order of bill passage has been reversed, making a final bill less likely than if things had gone according to plan. If even the House, which is not subject to supermajority decision-making rules, barely squeaked by with a 220-215 vote, then it has now set the upper limit of what health-care reform will ultimately look like. Potentially dissenting Democratic Senators see this, and there might now be a reverse band-wagoning effect. Already, we are hearing talk from the Senate about the timeline for a final bill possibly being pushed past Christmas into 2010. This is just what Nancy Pelosi and Barack Obama were hoping against, by pushing the Senate to pass a bill first. Unfortunately for them, the Senate took so long that to keep the momentum going (and amidst the electoral losses in NJ and VA last week), they felt compelled to pass something in the House to signal a token show of progress.

But the danger is that the move to regain control may initiate a further loss of control. The less than plenary “victory” in the House bill has only made it clearer than ever that if a final bill is to find its way to the President’s desk, it will have to be relieved of its more ambitiously liberal bells and whistles. Even though the House Bill, estimated at a trillion dollars, is more expensive than the Senate version being considered, and it has added controversial tax provisions for wealthier Americans earning more than $500,000, what the House passed was already a compromise to Blue Dogs. On Friday night, a block of Democratic members of Congress threatened to withhold their support unless House leaders agreed to take up an amendment preventing anyone who gets a government tax credit to buy insurance from enrolling in a plan that covers abortion. If even the House had to cave in some, there will have to be many more compromises to be made in the Senate, especially on the “public option.”

Sequencing matters in drama as it does in politics. It is at the heart of the Obama narrative, the soul and animating force behind the (now unraveling) Democratic majority in 2009. “Yes, we can” generates and benefits from a self-reinforcing bandwagon effect that begins with a whisper of audacious hope. From the State House of Illinois to the US Senate, from Iowa to Virginia – the story of Barack Obama is a narrative of crescendo. “They said this day would never come” is a story of improbable beginnings and spectacular conclusions. The structural underpinnings of the Obama narrative are now straining under the pressure of events. To regain control of events, the President must first regain control of his story.

Peggy Pascoe is Professor of History and Ethnic Studies at the University of Oregon. Her book, What Comes Naturally: Miscegenation Law and the Making of Race in America, has won two awards from the Organization of American Historians: the Lawrence Levine Prize for the best book on American cultural history and the Ellis Hawley Prize for the best book on political economy or American institutions. In the post below she looks at the actions of Justice of the Peace Keith Bardwell.  Read her previous OUPblog post here.

Louisiana Justice of the Peace Keith Bardwell refuses to marry interracial couples. He’s been doing so for years, but it wasn’t until October 2009, when he refused to marry Beth Humphrey and Terence McKay, that his actions attracted attention.

Appalled by Bardwell’s practice of checking with every couple who comes before him to see if they are interracial, then insisting that interracial couples go to other justices of the peace for their wedding ceremonies , Humphrey and McKay, the ACLU, the NAACP, Louisiana Governor Bobby Jindal, and Louisiana Senator Mary L. Landrieu have all called for Bardwell’s resignation.

Bardwell insists he hasn’t done anything wrong. “It is my right,” he said, “not to marry an interracial couple.” He doesn’t even understand why Humphrey and McKay were offended by his refusal. “I’m not a racist,” he insists. “I try to treat everyone equally.”

“In some parts of this country,” a friend of mine commented wryly, “it’s still the 1930s.” For most of American history, Bardwell’s refusal to marry an interracial couple would have been standard public policy. Laws against interracial marriage were, in fact, America’s longest-lasting and most fundamental form of race discrimination.

After the first such law was passed by the colony of Maryland in 1664, miscegenation laws thrived for the next three centuries. By the 1930s, 30 states banned interracial marriage, many of them prohibiting whites from marrying Chinese, Japanese, Filipinos, and American Indians as well as blacks.

Courts justified these laws by insisting that interracial marriage was “unnatural,” a claim that became so pervasive that by 1958, 94 percent of Americans told pollsters they opposed interracial marriage. Judges claimed that because the laws punished both the black and white partners to an interracial marriage, they affected blacks and whites “equally.” Like Keith Bardwell, they persuaded themselves that equality somehow demanded that public officials refuse to marry interracial couples.

The U.S. Supreme Court exposed the absurdity of this line of thinking in the 1967 case of Loving v. Virginia, which declared Virginia’s ban on interracial marriage unconstitutional. “There can be no doubt,” Chief Justice Earl Warren wrote, “that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Ever since the Loving decision, refusing to marry an interracial couple has been—and despite Bardwell’s protestations, still is—a clear denial of constitutional rights.

In the forty years since Loving, there has been a historic turnabout in public opinion; today most whites and blacks tell pollsters they approve of interracial marriage. There has also been a steady increase in interracial marriages, which now number in the millions. According to some estimates, in 2005 as many as 7% of American married couples were interracial, though the number of marriages between whites and blacks stood at a much more modest 422,000.

Yet it would be a mistake to assume that attitudes like Bardwell’s can be safely consigned to the past. A significant segment of several state populations still refuses to recognize that interracial marriage is a legal right. In 1999 and 2000, when South Carolina and Alabama finally got around to removing bans on interracial marriage from their state constitutions, the public vote was roughly 60 percent for removing the bans and 40 percent for leaving them in the state constitutions.

In other words, Keith Bardwell is entirely wrong, but he’s not entirely alone. Perhaps this helps explain why he’s gotten away with his outrageous behavior for so long. In the end, though, it only makes it all the more important that he be removed from public office. The disappointed bride, Beth Humphrey, said it best. “He doesn’t believe he’s being racist,” she said, “but it is racist.”

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at local elections. See his previous OUPblogs here.

As we follow the NJ and VA gubernatorial races, and the special election for the 23rd congressional district in New York (NY23), the debate has overwhelmingly been about whether or not these races are wind vanes for the electoral weather to come.

So some thoughts in this vein, before the main point of this post. Obama is campaigning hard for NJ Governor Jon Corzine because he needs to show errant Democratic members of Congress that he still has coat-tails. If Corzine pulls off his re-election bid, members of Congress seeking a presidential endorsement in 2010 will at least think twice about voting against the president in 2009. If both Creigh Deeds and Corzine lose (and in the former’s case, it is practically a foregone conclusion) in their respective gubernatorial races, then the rationale for party unity suffers and it is every politician for her/himself here on out. If this happens, Obama will face an even more recalcitrant Democratic aisle of Congress than he does now.

Meanwhile, with the exit of Dede Scozzafava from the race in NY23, the conservative movement looks set to shake up the Republican establishment, as Sarah Palin has promised. The soul-searching of the Republican Party continues; may the most powerful faction win.

Notice that none of these observations pay any attention to local concerns and local consequences. The significance of these races is entirely predicated on their potential impact on the balance of power in Washington, DC. When the punditry agrees without acknowledging that they do, their consensus is worth examining. There was a time when all politics was local. When the media establishments were not yet centralized in a few major outlets and the coverage of issues nationalized. A time when voters came out to vote for candidates at the local and state levels. Such races did not depend on huge television advertising budgets or endorsements by nationally elected officials, and they were not seen merely as divinizing tea leaves for the future but as important contests in their own right.

Today, voter turnout for local and state elections is paltry, and turn-out off-year elections is abysmal. An army of national media, however, has descended in Virginia and New Jersey and even in upstate New York, to cover the races not for the benefit of local and state residents, but for the impact it will have on the balance of power in Washington. Even conservative, states-rights oriented politicos understand that all local politics is national. (The revealing contrast is the high turnout for national elections in Europe and the low turnout for elections to the European parliament owing to the different balance of power between the center and its confederal parts in Europe.) Power resides in Washington, not in states, cities, or communities, because Washington’s potential reach into every state and locality is extensive. Even those who want to invert this balance of power have been compelled to concentrate their attention and energies to the Federal City. We are all Federalists now.

Politics is no longer local because the return to turn-out is minimal at the state and local levels. In the 19th century, local party workers toiled to get the vote out because there were patronage jobs to be earned if their candidate won. Parades, torch-light processions, rallies, barbeques, banners, buttons, and insignia got people worked up and ready to go to polling booths. Contrast this level of enthusiasm for a 22 year old voter in Virginia who had voted for Obama last year. “Politics is boring,” he said. “I know Obama is making changes, but it takes so long to make things happen.” And that is why he is probably not going out to vote next Tuesday.

The lesson to be learned in next week’s contests is not what they will predict about the future, which will be endlessly debated even if only time will tell, but what they reveal about the transformation of American democracy, which time has already told.

By Edward Zelinsky

Because the rate of inflation for 2009 has effectively been zero, the Social Security Administration has announced that Social Security payments will stay flat for 2010. In response, the Obama Administration has asked Congress to send every Social Security recipient an additional $250 in 2010.

This is a bad idea. The Administration’s proposal is both unfair and misfocused.

Many Americans would be delighted to have the same deal as Social Security recipients, namely, the identical cash income in 2010 that they received in 2009. To millions of newly unemployed Americans, that looks like a good deal. Not as good as being president of a bailed-out bank, but still a good deal.

For 2010, the salaries of many Americans working in the private sector are frozen or reduced. In countless cases, compensation decreases are taking the form of fringe benefits eliminated or reduced, for example, the termination of employers’ 401(k) contributions.

As the latest saying goes, for these working Americans, flat is the new up. It is inequitable for federal taxpayers to finance $250 checks in 2010 for Social Security recipients with stable incomes, but not for the working and unemployed Americans whose incomes have declined, often precipitously.

And this is before we consider the tax-free nature of most Social Security benefits.

To illustrate, compare a young married couple with a retired couple receiving Social Security benefits. Let us suppose that both of these families have annual incomes of $20,000. The members of the hypothetical young family have minimum wage jobs while the retired family receives yearly Social Security benefits of $20,000.

While the nominal, pre-tax incomes of these two families are identical, the younger couple pays FICA taxes of $1,530. In contrast, the retired couple receives all of its Social Security payments tax-free. Thus, on an after-tax basis, the younger family has substantially less income per person than the older couple.

If federal checks are to be sent to either of these couples, the younger family is the more deserving recipient. Neither of these families is rolling in dough. However, there is no reason to target federal largesse to the retired couple rather than the young working family, with the same nominal income but which pays FICA taxes on all of its income.

In effect, the younger family would, by its FICA tax payments, finance the $250 checks the President wants to send to seniors.

The Administration has suggested other programs for 2010 which make more sense than the proposed $250 check to Social Security recipients. The Administration has advocated that, in light of the poor job market, unemployment benefits be extended and that so-called COBRA subsidies also be prolonged to help the unemployed purchase continuing medical insurance from their former employers. Both of these suggestions are compelling. Indeed, the COBRA subsidy should be made permanent.

If the federal fisc provides additional relief beyond this, Congress should expand the earned income tax credit for 2010 to relieve low-income working families, like our hypothetical younger couple, of some of their tax burden.

In contrast, the proposal to send all Social Security recipients $250 is ill-conceived. This proposal is not fair to working and unemployed Americans struggling with reduced incomes and tax obligations. This proposal misdirects the focus of federal assistance. When it comes to the $250 checks for seniors, Congress should just say no.

Jennifer Weber, author of Copperheads: The Rise and Fall of Lincoln’s Opponents in the North, and Professor in the Department of History, University of Kansas, sent us this picture. This kitten has brightened my week and I hope he brightens your Friday!

Kit’s Lit

Lots of people enjoy Oxford’s books, but OUP’s fans aren’t limited to humans. Ike here has a deep interest in the Civil War, and OUP’s list slakes his thirst for knowledge.

LeeAnna Keith teaches history at Collegiate School in New York City. She is the author of The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction. In the article below, Keith reflects on the role race may have played in the decision to award the Nobel Peace Prize to President Barack Obama.

Even the most outspoken critics of this year’s Nobel Peace Prize have hesitated to suggest that President Obama was rewarded simply for his good looks. He won the prize “for awesomeness,” at least, according to Republican objectors, who have hesitated to introduce race in their prize critiques. As a student of the history of racial violence in America, however, I embrace the taboo notion that the Nobel committee tapped Obama because he is black. As a symbol of overcoming prejudice, the first black president of the United States embodies an ideal of peace in a still turbulent world.

Commentators have chided the committee’s citation, with its references to diplomacy, multilateralism, and confronting climate change, as being less like a summary of accomplishments than an agenda for the future. Less often, they have noted the committee’s second consideration, that “only very rarely” has a person “captured the world’s attention and given its people hope for a better future” in the way that Obama has. This is veiled Norwegian racial commentary, an acknowledgment of the president’s dazzling personal profile against the backdrop of America’s unjust history.

The racial dimension of the award was not lost on African observers. Kenyans are celebrating the recognition of a “son of Africa” who has inspired the world. In the spirit of “Ubuntu,” South Africa’s president explained, Obama’s mission “celebrates our common humanity.” The Nobel Laureate Desmond Tutu credited the award with helping people of color around the world to “walk a little taller.”

“What I actually want to say is, yippee!” exulted Tutu.

Americans should embrace the honor just as unequivocally, and also recognize the prize as recognition of the American electorate’s contribution to the cause of peace. Like Obama, Americans as a society have not yet managed to blunt the force of conflict, weaponry, and planetary degradation. We have made only tentative steps toward repairing our country’s image in the eyes of the world. With the election of Barack Obama, however, the United States transcended its four-hundred year history of racial violence and suppression. We set a standard of openness and opportunity to amaze the world.

Violence as an alternative to political inclusion and equity persisted even in Obama’s lifetime. He was born in the era of the Freedom Rides and church bombings, when a majority of white southerners opposed equal opportunity and a minority dedicated themselves to murder and intimidation. The efforts of white supremacists in the 1960s continued the long tradition of racial violence in the American South, brutality that emerged first amid the desperate struggle of chattel enslavement. Barack Obama’s Nobel Prize helps us to understand slavery as an act of war, the companion of countless sins in the seizure, transport, and management of captives. In behalf of its monstrous cause, the U.S. slaveholding interest persisted in one of history’s most costly wars, claiming the lives of more than 600,000 North and South.

As demonstrated in the history of the Colfax Massacre, the killing of more than one hundred armed African American men in Louisiana in 1873, the violence and repression persisted in the aftermath of Emancipation. The establishment of blacks as voters and as aspirants to elected offices had met the most fierce resistance of the White South establishment. Allied to the Ku Klux Klan and other paramilitary groups, white voters wrenchingly contorted U.S. democratic practices to exclude the terrorized African American electorate.

White supremacy became the special project of government in southern communities and elsewhere: a monopoly on opportunity enforced by legal and extralegal means of black disempowerment.

In the Age of Obama (and his parents), black people and their allies initiated a hopeful reversal of this painful legacy. Americans of his mother’s generation perceived the alternative of cooperative engagement between the races. None pursued this kind of mutuality with more enthusiasm than Stanley Ann Dunham, and no one, by most measures, yielded better results.

Dr. Dunham was educated by anthropology and courted in Swahili and the King’s English by Barack Obama, Sr. Emboldened by the 1960s, Hawaiian Style, and university romance, they lived the principle of love, not war. Best of all, Obama’s mother enlisted her steadfast and resourceful parents, ordinary white folks, in the project of raising her mixed race son in an atmosphere of peace.

White Americans’ ability to repeat the cognitive and emotional leap that the Dunhams achieved has sustained a growing culture of acceptance of and mutual benefit by blacks and whites. Inspired by black leadership, including the first two black American Nobel Laureates, Ralph Bunche and Dr. Martin Luther King, Jr., Americans in Obama’s lifetime have constructed a civil society more than a world away from the Colfax Massacre and other acts of racial violence.

The inauguration of President Obama only weeks before the Nobel deadline was an act of joyful concord that remained fresh in the minds of Norway’s committee of five through the first turgid months of disengagement from the George Bush Era. Obama calls for diplomacy and cooperation in international affairs. Having presumed to overcome symbolically the legacy of racial hatred, Obama’s America might reasonably expect to win the world to the audacity of hope.

Strengthen democracy and human rights around the world by setting an example? Peace Prize Committee to Americans: Yes, you can.

Rosemarie Garland-Thomson is Professor in the Department of Women’s Studies at Emory University.  She was recently named one of 2009’s “50 Visionaries Who Are Changing Your World” by UTNE Reader. Her most recent book, Staring: How We Look captures the stimulating combination of symbolic, material and emotional factors that make staring so irresistible while endeavoring to shift the usual response to staring, shame, into an engaged self-consideration.  In the original post below she looks at end-of-life issues and the health care debate.

Democracy thrives on polarized debates, theatrical performances that try to convince citizens about how to spend their dollars and place their votes. Statements get especially extravagant when we are discussing important policy issues that affect such sensitive personal issues as how we take care of each other when we are sick, vulnerable, hurt, or dying. Our recent debate about health care has flared especially intensely about end-of-life and life ending issues. That the inevitable outcome of life is death is a hard pill for us all to swallow. Health maintenance is a more comfortable and cheerful topic for us ever optimistic Americans than the uncompromising truth of our impending mortality.

One of the more vivid concepts to emerge from the health care debate is the provocative concept of pulling the plug on granny. The image of our granny shorn from life-sustaining sustenance, care, and support cuts both ways, calling up tender sympathy in some and tough pragmatism in others. A forlorn granny is code for the larger issue of how to make difficult decisions about not just distributing resources but who we think deserves those resources. In other words, the figure of granny lets us consider who we think of as deserving and valued fellow citizens, of who we want to be in our human community.

One way we frame this is through a cost-benefit analysis about what we imagine to be high or low quality of life. One reason we might pull the plug on granny is that the quality of her life seems low to those of us who are not old sick, or disabled. Moreover, we understand Granny to be using up more resources than she is contributing to society. People on both sides of the healthcare debate have brought forward the most extravagant example from history of where evaluating the quality of other people’s lives can lead. Between 1939 and 1942, the Nazi regime undertook an official euthanasia program. More recently questions of life quality and resource distribution sprang forward with the revelation that a number of grannies and other significantly disabled people at a hospital in New Orleans might have been euthanized during the Katrina disaster. These troubling occurrences, one then and the other now, remind us of the continuing communal struggle to decide what the Democratic premise of equality among citizens might actually mean.

The contemporary British version of our American granny is the physicist Stephen Hawking, whose imagined low quality of life based on his significant disability starkly contrasts with the value of his contribution as a brilliant scientist. Hawking is an exception, of course, to the usual way we consider the grannies of the world. Those who offered up Hawking has an example of a person whose plug might be pulled by a reformed healthcare system were surprised when Hawking claimed that the British healthcare system have provided him with the plugs he needed for a quality life through which he made his important contributions.

The late Harriet McBryde Johnson, who was a civil rights attorney and advocate for disability rights, made public a discussion about plug pulling with the Princeton ethicist Peter Singer, who has advocated euthanizing disabled newborns as a form of moral pragmatism when parents get a child they would prefer not to have. Johnson, who like Hawking lives with significant disabilities, put herself forward in the pages of the New York Times Magazine in 2003 to present the public with the story of how someone we imagine us having a very low quality of life in fact has a very high quality of life. In doing so, she offered us an opportunity to think through how we distribute resources and what a valuable life might be.

People like Stephen Hawking and Harriet McBryde Johnson–as well as our frail grannies, Katrina victims, and disabled German citizens under fascism– remind us that the conversation about who should and should not be in the world– to use Hannah Arendt’s phrase– is an urgent and confusing one today.

Today’s healthcare debate and it’s polarizing icons points to a less dramatic and often unnoticed contradiction between two opposing currents in American culture today. On the one hand is the endeavor to integrate people with disabilities into the public world by creating an accessible, barrier free material environment. On the other hand, is the medical mission to eliminate people with disabilities from the human community. What we might call the “integration initiative” arises from a rights-based understanding of disability and occurs through legislative and policy mandates such as the Americans with Disabilities Act of 1990 and 2009. In contrast, the “elimination initiative” arises from the idea that social improvement requires elimination of devalued human qualities and cons of people in the interest of reducing human suffering and increasing life quality and building a more desirable citizenry.

This contradiction in beliefs has filled the contemporary American public landscape with both fewer and more people with disabilities. For instance, wheelchair users now enter public spaces, transportation, employment, and commercial culture on a scale impossible before the legal mandates of the 1970s began to change the built environment. At the same time, medical technologies increasingly identify and eliminate through selective reproductive procedures potential wheelchair users born with traits such as spina bifida, which often requires wheelchair use for effective mobility. In another example, people with developmental and cognitive disabilities are now educated in integrated, mainstream educational settings which accommodate their educational needs rather than in segregated institutions. Simultaneously, medical technology routinely selects fetuses with Down syndrome or trisomy 21 in pregnancies to evaluate for termination.

The point is that not just what we do with granny’s plugs but how we imagine granny’s life reaches out beyond the nursing home room and into our shared world, affecting who we are and want to be as a human community.

Jennifer Burns is Assistant Professor of History at the University of Virginia.  Her new biography, Goddess of the Market: Ayn Rand and the American Right, follows Rand through her meteoric rise from struggling Hollywood screenwriter to best-selling novelist.   Burns highlights two facets of Rand’s work that make her a perennial draw for those on the right: her promotion of capitalism, and her defense of limited government.  In honor of Jennifer Burns’s The Daily Show appearance (be sure to tune in 11 tonight!) we have posted an excerpt below.

“I am coming back to life,” Rand announced as the Nathaniel Branden Institute entered its second year of existence.  Watching Nathan’s lectures fill, Rand began to believe she might yet make an impact on the culture.  Roused from her despair, she began once more to write.  In 1961 she published her first work of nonfiction, For the New Intellectual, and in 1962 launched her own monthly periodical, The Objectivist Newsletter. Over the course of the decade she reprinted articles from the newsletter and speeches she had given in two more books, The Virtue of Selfishness and Capitalism: The Unknown Ideal.  Although she occasionally talked of a fourth novel, Rand had abandoned fiction for good.  Instead she reinvented herself as a public intellectual. Gone were the allegorical stores, the dramatic heroes and heroines, the thinly coded references to real politicians, intellectuals, and events.  In The Objectivist Newsletter Rand named names and pointed fingers, injecting herself directly into the hottest political issues of the day.  Through her speeches and articles she elaborated on the ethical, political, and artistic sides of Objectivism.

Rand’s ideas were particularly attractive to a new generation of campus conservatives, who saw rebellion against a stifling liberal consensus as a basic part of their identity.  Unlike older conservatives, many right-leaning college students were untroubled by her atheism, or even attracted to it.  As Rand’s followers drew together in campus conservative groups, Ayn Rand clubs, and NBI classes, her ideas became a distinct stream of conservative youth culture.  Through her essays on government, politics, and capitalism Rand herself encouraged the politicization of her work.  In 1963 she even endorsed a new Republican on the scene, Barry Goldwater, a move that situated her as the leader of a growing political and intellectual movement.

At first look Objectivism may appear a freakish outgrowth of the turbulent 1960s, but it had significant parallels in American history.  Nearly a century before, similar reading clubs and political activism had sprung up around Edward Bellamy’s Looking Backward, a book uncannily similar to Atlas Shrugged, if diametrically opposite politically…

Rand made her network television debut in 1960, appearing on Mike Wallace’s celebrated interview show.  Her dark eyes flashing, she refused to be intimidated by the liberal Wallace and expertly parried his every question and critique.  Her performance caught the eye of Senator Barry Goldwater, who wrote Rand a letter thanking her for defending his “conservative position.”  Rand had not mentioned the senator by name, but he immediately recognized the similarity between their views.  Goldwater told Rand, “I have enjoyed very few books in my life as much as I have yours, Atlas Shrugged.”  He enclosed an autographed copy of his new book, the best-selling Conscience of a Conservative.  Shortly thereafter the two met briefly in New York.  Rand followed up this encounter with a lengthy letter urging Goldwater to support capitalism through reason alone.  Although she considered him the most promising politician in the country, Rand was distressed by Goldwater’s frequent allusions to religions.  The Conscience of a Conservative had been written primarily by L. Brent Bozell, William F. Buckley’s brother-in-law, and accordingly reflected the fusionist consensus of National Review.

In her letter to Goldwater Rand hammered on the need to separate religion and politics, a theme that would animate her for decades.  She singled out National Review for special criticism because it was a supposedly secular magazine that surreptitiously tried “to tie Conservatism to religion, and thus to take over the American Conservatives.”  If such an effort succeeded, Rand asked, what would become of religious minorities or people like herself who held no religion?  Goldwater’s response, which reiterated his Christian religious beliefs, was brief yet polite.  Rand had a powerful admirer, but not a convert.

As her depression lifted, Rand began to explore different ways she might exercise cultural influence.  She was newly interested in politics because of her esteem for Goldwater and her dislike of the dashing presidential contender, Jack Kennedy, to her a glamour candidate who offered no serious ideas.  She made her first venture back into political commentary with a scathing attack on Kennedy, “JFK: High Class Beatnik,” a short article published in the libertarian journal Human Events.  In the summer of 1960 she even dispatched Nathan to investigate the possibility of her founding her own political party. It was unclear if Rand saw herself as a potential candidate or simply a gatekeeper for others.  Nathan sounded out a few of Goldwater’s political advisors, who told him that Rand’s atheism severely limited her prospects.  Abandoning that idea, Rand returned once again to intellectual pursuits.  She sent her attack on JFK to the head of the Republican National Committee to be used as needed in Republican publications.

Shaking off her lethargy, Rand now began paying attention to the new following she had gained through Atlas Shrugged.  The book was an instant best-seller despite the largely negative reviews it received.  As with The Fountainhead enormous quantities of enthusiastic fan mail poured in.  Although Rand could not respond personally to ever letter, she was interested in her readers, particularly those who wrote especially perceptive or ignorant letters.  Nathan often interposed himself between Rand and the most objectionable writers, but in the early 1960s it was entirely possible to send her a letter and receive a personal response.  Sometimes she even engaged in a lengthy correspondence with fans she had not met, although her more usual response was to refer the writer to work she had already published.

The Nathaniel Branden Institute both capitalized on and fostered Rand’s appeal.  Nathan used the addresses from her fan mail to build NBI’s mailing list and advertise new courses.  As the lectures expanded into new cities, he took out newspaper advertisements describing Objectivism as the philosophy of Ayn Rand.  In 1962 he and Barbara published a hagiographic biography, Who is Ayn Rand?, which included an essay by Nathan on the fundamentals of her philosophy.  Slowly public perception of Rand began to shift, establishing her as a philosopher, not just a novelist.  The NBI ads and lectures made Objectivism into a movement, a larger trend with Rand at the forefront.