[Eugene Volokh, 6:09 PM]
MORE ON THE K.C. JOHNSON / BROOKLYN COLLEGE MATTER, in the Wall Street Journal. (Thanks to Erin O'Connor for the pointer.)

 
[Eugene Volokh, 6:05 PM]
SMALLPOX VACCINATION: My friend and colleague Mark Kleiman has some very interesting and persuasive arguments about the value of mass smallpox vaccination. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 5:49 PM]
ALAS, IT WAS NOT TO BE: Oh, I had plans this week (and late last week). I was going to post more about "Happiness is a Warm Gun" (including the Snoopy theory and the Gun Magazine theory). I was going to post more about Mormons baptizing dead Jews. Even before then, I was going to post about gays in the military and elected public defenders. I was going to respond to other interesting e-mails, some of which I had personally replied to, and some of which I was planning to respond to by blogging.

     And then, work intervened. And life. Sorry excuses, I know, but there they are. And now, what's the point, with the original posts over a week in the past? Time passes, Lott resigns, last week is but a distant memory. Who was that strange man in early December, who was supposedly me but is now lost in the dim caverns of the past? Many apologies to all those whose messages I didn't get to . . . .

 
[Eugene Volokh, 5:34 PM]
MARK STEYN ON JOHN KERRY, in OpinionJournal.com (featured article). I don't know enough about Kerry to know whether this is correct, but like all of Steyn's stuff, it's very readable.

 
[Eugene Volokh, 4:41 PM]
MORE HEADLINE VS. STORY: Todd Seavey points to an AP story with the headline "Public Supports Bush, Not Tax Cuts." The trouble is that the story says nothing about the public not supporting tax cuts. It says "People were about evenly split on [Bush's] tax policy," and mentions in the same paragraph the ABC / Washington Post poll; that poll shows that the public approves of Bush's handling of taxes (though with no separate question about tax cuts as such) by 51-44. And the evidence that the public doesn't support tax cuts is . . .?

 
[Eugene Volokh, 2:54 PM]
CANADIANS AND AMERICANS: Canadians are generally indistinguishable from Americans. The surest way of telling the two apart is to say that to a Canadian.

     (Credited sometimes to Richard Staines and sometimes to Richard Starnes; thanks to Phil Proctor for passing this along.)

 
[Eugene Volokh, 2:26 PM]
LIMITS ON FEDERAL POWER: Orin pointed earlier this morning to an E.J. Dionne piece that condemned states' rights (which usually means structural limits on federal power) on the grounds that it had been used to support racism. Orin expressed skepticism, and I share that skepticism: That states' rights can't be treated as the preeminent constitutional principle (which many of the Dixiecrats may have done, and which some today caricature conservatives as doing) doesn't mean that states' rights are a bad principle.

     The Constitution embodies many principles -- equal rights, constitutional protections against both state and federal violations of individual rights, constraints on federal power vis-a-vis states, constraints on state power vis-a-vis the federal government, self-government at the state level, self-government at the federal level, a forceful federal government as to some topics, a limited federal government as to other topics, and many more. The Dixiecrats wrongly rejected some principles in order to extol others (as David Kopel has powerfully explained). Some modern federal power maximalists make the opposite mistake. The Dixiecrats' mistake was more morally objectionable, but the opposite mistake is also practically dangerous, and is also untrue to the Constitution.

 
[Eugene Volokh, 12:47 PM]
NEPOTISM, GOOD SENSE, OR BOTH? According to the an AP story, former Sen. Frank Murkowski, who was just elected governor of Alaska, has just appointed his replacement who will serve in his stead in the Senate until the next election: His daughter, state legislator Lisa Murkowski (who had been selected House Majority Leader).

     So what should we think about it? Is this classic nepotism, given that someone is being appointed to high political office by her relative? Or is it just good sense? As now-Gov. Murkowski says, "Above all, I felt the person I appoint to the remaining two years of my term should be someone who shares my basic philosophy, my values, but particularly one who shares on the issues of Alaska matters that are before us [-- s]omeone whose judgment I trust in representing the state and all of its people." Murkowski probably knows his daughter quite well, better than he knows most other people, and trusts her more than he trusts most other people. (This isn't always true of parents and children, but it's often true, and it may well be true in this case.)

     This question comes up periodically in American public life; as I understand it, for instance, the same question was asked when JFK appointed Robert Kennedy as Attorney General. One possible response is that it all depends on whether the person was in any event qualified for the job (as Lisa Murkowski might well be, given her own success as a politician), but while this is a necessary condition for the action being proper -- appointing unqualified people is certainly bad -- it's not really sufficient: I'm sure there were lots of qualified candidates, and there might even have been some who were more qualified in some sense (though I should stress that I don't know for sure, and am only speculating here). It's hard to escape the sense that they were passed over, and Lisa Murkowski was selected, because they were unrelated to the new Governor and she was related to him, and that doesn't seem quite fair.

     And yet, on the other hand, maybe the relationship is properly seen as part of the qualifications, precisely because it is often closely correlated to how well the appointer knows and trusts the appointee. And maybe -- though here I'm more tentative -- there is some proper role in politics for people helping their own flesh and blood, especially when it's done overtly and with the possibility of reaction by the voters. Yes, government offices aren't private fiefdoms to be bestowed on one's family, and the goal is to serve the public; but is it really so bad for a father to give a daughter this sort of leg up, especially when she does seem at least fairly well-qualified? The desire to help one's children is a basic, likely biological, human drive. We are right to frown on it being used as the basis in most public decisionmaking by government officials (and by business officials who aren't sole owners of the business) -- but can we, and should we, try to banish it altogether?

     So as you can tell, I don't have a particularly firm opinion here; still, it seems to me like an interesting question.

     (Thanks to How Appealing for the pointer to the story.)

 
[Eugene Volokh, 11:27 AM]
"JEW, JEW, JEW!": I'm always hesitant about these sorts of hate crime stories, because people take them to be more representative than they may well be. That a few schoolkids in a nation of nearly 300 million people, or a few Arab-American kids out of the millions of Arabs in America, acted this way doesn't tell us much. I think that anti-Semitism is not a huge problem for most Jews in America today (though this doesn't mean that it's not a problem).

     Nonetheless, given how prominently hate crimes are indeed reported, it's helpful to keep in mind that there's a broad range of them, with no group having a monopoly on victimhood or victimization. So with that introduction, here's the N.Y. Post story:

Religious tensions erupted yesterday after authorities confirmed that an Arab girl beat up a Jewish girl at a Brooklyn middle school.

The Arab teen was arrested and suspended for the Dec. 12 attack on the 13-year-old Jewish girl, an honors student, at IS 259 in Dycker Heights, sources said. . . .

Brooklyn Assemblyman Dov Hikind, who spoke with the victims' parents, said he believes the assault was bias-related -- although it was not reported as a hate crime.

"The attack was the culmination of weeks of taunting and tormenting by this group, led by one particular Arab girl," Hikind said in a letter to Schools Chancellor Joel Klein.

"They were chanting, ‘Jew! Jew! Jew!' " Hikind added in an interview. . . .

UPDATE: A person whom I trust, and who has no reason to defend anti-Semites, suggests that Dov Hikind might not be a particularly reliable source. If Hikind is wrong, and this incident didn't happen (or was just a common schoolyard brawl between two kids), I'll be quite happy. I should stress that I don't have any personal knowledge one way or another about Hikind's reliability, or about his accuracy in this instance -- just passing along a warning that one should, as always, be cautious about newspaper accounts like this.

 
[Eugene Volokh, 11:09 AM]
DISCRIMINATION BASED ON COUNTRY OF CITIZENSHIP: A couple of recent e-mails (and a radio show I heard this morning) suggest that the INS actions with regard to non-permanent-resident aliens from Iran, Iraq, Libya, Sudan and Syria might constitute unconstitutional discrimination based on religion or ethnicity. I don't think so, and I thought I'd repost parts of an item I posted on the subject on June 5.

     When people complain about discrimination, they're complaining that someone is being treated worse because of some attribute. It's thus important to identify clearly what the attribute is. Is it religion? Or is it status as citizen of a particular foreign country (and unfortunately, many of the countries that pose the highest risk to our security are indeed majority-Muslim countries)?

     Discrimination based on race or religion does indeed go against important American constitutional traditions, and broader ethical principles as well. It may on very rare occasions be proper, but we should always be suspicious of it. (It turns out, incidentally, that the arguments against religious discrimination and religious profiling have to be somewhat different than those against racial discrimination and racial profiling, but I think they are quite powerful.)

     Discrimination based on the foreign country in which one is a citizen stands on very different legal and ethical footing. Legally, I don't believe there's any constitutional bar to such discrimination. And ethically, we have to recognize that the nation of one's citizenship can quite properly be counted in our government's decisions, especially ones related to immigration and national security.

     The problem with the internment of Japanese-Americans during World War II was precisely that they were Americans, who were entitled to a presumption that they'd be just as loyal as other Americans. But there's no reason to assume that noncitizen visitors will be loyal or even friendly to our nation. Many are friendly, but not all are. And it stands to reason that those from countries that have a great deal of anti-American sentiment would be more likely to be hostile to American interests.

     What's more, since they are not American citizens, their presence in the U.S. is a matter of grace, not (as with citizens) a matter of constitutional right. General suspicions that might not justify (quite independently of discrimination questions) restraints on citizens may well justify some modest restraints on noncitizens.

     It's perfectly constitutional to require foreign citizens to register and to come in for interviews even when we don't require this of our own citizens. Foreign citizens are not Americans. They do not have a constitutional right to be here. We are perfectly entitled to deport them when their visa term comes up, or for other reasons, and it's helpful for that purpose to have some idea where they are. They have not earned our trust, or sworn allegiance to us. They are our guests, and we should treat them fairly. But there's nothing unfair about a host claiming the right to know where his guests are, and what they're doing on his property.

     Whether these sorts of programs actually make good sense is a different, and a much tougher question. I'm not sure that the recent INS actions do, but I'm not sure they don't. On the one hand, many, quite likely most, people from Iran, Iraq, Libya, Sudan, and Syria are probably here because they don't like the governments of their home country, and like us much better. On the other hand, some may be here precisely because they were sent to engage in terrorism. I'm not knowledgeable enough on the policy questions to have an informed opinion.

     But the issue is what's good policy -- the Constitution, and more general principles of generally treating people without regard to race or religion, do not bar distinguishing Iraqi citizens from Irish citizens.

UPDATE: Thanks to eriposte for pointing out that my original post was in error when it said that noncitizens "have no legal right to be here"; I meant to say only "have no constitutional right to be here," and have changed the text accordingly.

 
[Eugene Volokh, 10:21 AM]
ANOTHER THING YOU WON'T FIND HERE, EVEN THOUGH YOUR YAHOO QUERY HAS SOMEHOW TAKEN YOU TO THIS SITE:

"the name of the rose" free mpg

Search engines work in mysterious ways their wonders to perform.

 
[Eugene Volokh, 10:19 AM]
MORE DUMB POLITICIAN TRICKS:

Responding to Sen. Trent Lott's recent comments, Rep. Cass Ballenger told a newspaper he has had "segregationist feelings" himself after conflicts with a black colleague.

Ballenger, a North Carolina Republican, said former Rep. Cynthia McKinney, D-Ga., so provoked him that "I must I admit I had segregationist feelings." "If I had to listen to her, I probably would have developed a little bit of a segregationist feeling," Ballenger told The Charlotte Observer in Friday's editions. "But I think everybody can look at my life and what I've done and say that's not true.

"I mean, she was such a bitch," he said. . . .

Ballenger told Charlotte radio station WBT Friday that his comments were "pretty stupid on my part" and that he didn't think he had segregationist feelings.

"I talk too much," Ballenger told the radio station. "In that specific case, I was trying to say that almost anybody can develop an animosity to individuals. In this particular case, I picked on Cynthia McKinney because she was what I consider less than patriotic to the United States." . . .

When told of Ballenger's remarks, Rep. Mel Watt, a black Democrat from Charlotte, said he believed race was not the main motivation for them.

"I suspect that whatever she's doing that's gnawing on him has to do more with what she's saying and how she's saying it than the fact that she's black," he said.

"I doubt it's her blackness that's annoying him, but it's probably that added factor that makes it intolerable to him, in a sense. I wonder if somebody white did and said the same thing that Cynthia McKinney is saying it would even become a part of his discussion."

Oooh, what a rocket scientist Mr. Ballenger is.

     Mel Watt's comments are also mistaken, I think, but only partly, and partly correct. Indeed, some people do get more outraged by bad behavior by someone of a particular race, religion, ethnicity, or sex; there's no doubt that there's some degree of this sort of feeling out there. On the other hand, if McKinney had been white, other people might have condemned her still more, because they wouldn't have been worried about the danger that their condemnation would be characterized by some as racist or insensitive. And most people, I think, would have condemned her pretty much equally whatever her race -- not because most people are so wonderfully fairminded, but because her statements and actions were so appalling.

UPDATE: CalPundit takes me to task, and rightly so. Mea culpa, mea maxima culpa . . . .

 
[Eugene Volokh, 6:29 PM]
DISCRIMINATION AND PROFILING? By the way, here's one alleged rights violation in the INS program that I haven't heard people discussing; nor did I hear much discussion of a similar problem in the plan several months ago to interview thousands of men who are citizens of Middle Eastern countries -- sex discrimination. These programs are explicitly limited to males.

     The reason for this limitation, I think, is pretty clear: The overwhelming majority of all violent people, from terrorists to killers, are men. That seems to be a fact of biology (whether or not it's also exacerbated by societal factors).

     But does this reason suffice, under existing constitutional law, to allow the government to discriminate based on sex -- either in identifying potential suspects (what one might call sexual profiling), or in actually taking tangible action against people, such as demanding that men do certain things that women don't have to do?

     It's far from clear that this is so: As the Court said in U.S. v. Virginia, the Virginia Military Institute case, "Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action." What's more, generalizations about gender-based differences in rates of misbehavior are generally not enough (see Craig v. Boren), especially when the actual rates of misbehavior in either group are quite low. And "administrative ease and convenience" has likewise been generally rejected as a justification (again, see Craig). So the obvious argument in favor of the sex classification -- "Men are more likely to be terrorists than women, so we want to save time, money, and effort by focusing just on the men and not on the women" -- seems to be foreclosed.

     Now I'm not trying to make a fuss here -- this sort of sex classification doesn't get my blood boiling (though maybe it should). I don't make the law, I just report it. But it's interesting that even though the constitutional objection here is quite substantial (much more so than, for instance, any racial profiling objection, since in this program the discrimination is based on nation of citizenship, and not on race or ancestry), very little has been said about it.

 
[Eugene Volokh, 6:14 PM]
HEADLINE VS. STORY: A FoxNews headline reads: "Families of Jailed Middle Eastern Immigrants Say Rights Violated." But when I read the story, I didn't see anything that explained which rights were violated.

     "[M]ale visa holders, age 16 and older, from Iran, Iraq, Libya, Sudan and Syria were asked to report to local immigration offices in order to be fingerprinted and photographed or risk being deported"; several hundred of them, who the INS claims "have violated immigration laws or are wanted by law enforcement for a crime," were then detained. Here are some quotes from people who criticize the program:

Mohajeri and relatives of the hundreds of Middle Eastern men and teens who have been detained in California this week say they feel betrayed by the country that once offered them a safe haven. Even worse for many family members is the feeling that they acted as unknowing accomplices to the U.S. government.

"I blame myself. Why I brought my son here and put him in jail. Why? Just because I followed the law," [a family member] cried. "I made a mistake. I shouldn't do that. But I did." . . .

The program has provoked the ire of a coalition of statewide civil rights groups, including the American Civil Liberties Union, which issued a statement Thursday calling on the government to "scrap the flawed and misguided" program, or to at least extend the deadlines so that complaints can be addressed.

"The INS roundup is confused, ineffective and deceptive," said Salam Al-Mayarati, executive director of the Muslim Public Affairs Council. "It is clear these measures erode our freedom, yield no enhanced security and serve to damage America's global image." . . .

Zahra Modjarrad, a psychologist who fled Iran on foot for Pakiston 22 years ago, said she too felt relief when her medical student son was released from detention Wednesday.

But she worried about the long-term emotional effects of his detention, which included a body search with a flashlight, she said.

"His spirit has been broken very badly because he was the person who never had any problems in his life," Modjarrad said.

But where is the allegation of actual violation of actual rights? Now it may well be that the program is a bad idea, perhaps some aspects of it even do violate people's rights, and maybe the ACLU and the Muslim Public Affairs Council even made this clear. None of this, though, made its way into the article, despite the claim that "Families . . . Say Rights Violated."

 
[Eugene Volokh, 3:16 PM]
ENGLISH ISN'T LATIN: By the way, it appears that both the "it's wrong to split infinitives" myth and the "it's wrong to end a sentence with a preposition" myth probably have a common root (at least in part): The assumption that English should be like Latin. From Webster's Dictionary of English Usage:

Where did this "cherished superstition" [that there should be no prepositions at the end of sentences] come from? It seems to have originated with the 17th-century English poet, playwright, and essayist John Dryden. . . . We cannot be sure how Dryden developed the idea that the terminal preposition was an error, but Latin is probably involved. The construction does not exist in Latin, and Dryden claimed to have composed some of his pieces in Latin and then translated them into English -- apparently for greater elegance or propriety of expression. . . .

The original cause for complaint [about split infinitives] was probably awareness of a relatively sudden marked increase in use of the construction, perhaps combined with the knowledge that in those more elegant languages, Latin and Greek, the infinitive is never split -- because it is a single word distinguished by its ending rather than by an introductory particle.

Well, English isn't Latin (or for that matter Russian, another language in which one wouldn't end a sentence with a preposition, or split an single-word infinitive). We English speakers split our infinitives, we end our sentences with prepositions, and we're perfectly entitled to do so.

 
[Eugene Volokh, 8:22 AM]
A FANTASTIC LILEKS PIECE on Christmas hatred. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 7:58 AM]
SPLIT INFINITIVES: Reader Michelle Dulak facetiously points to my post criticizing the Language Police, and writes:

"Seems to me that if the Language Police want to publicly accuse someone [. . .]"

You put that split infinitive in there deliberately, didn't you, just to see how many of us would call you on it? ;-)

I wish I could claim credit for such creativity, but I can't. I split the infinitive without thinking about it, precisely because normal, educated English speakers and writers split the infinitive without thinking about it -- and they are right to do so. "To boldly go where no man has gone before" sounds normal, even to people who have never seen Star Trek. "Boldly to go where no man has gone before" sounds stilted. Likewise, "to publicly accuse someone" sounds much better to my ear than "publicly to accuse someone."

     What's more, it's not against the rules. Webster's Dictionary of English Usage: "the objection to the split infinitive has never had a rational basis." "The consenus in the 20th century . . . seems to be that awkward avoidance of the split infinitive has produced more bad writing than use of it." "The commentators recognize that there is nothing wrong with the split infinitive."

     The Harper Dictionary of Contemporary Usage likewise calls it a "pedantic bogey," and says that "if the intrusion of one or at most two adverbs between the elements of an infinitive sounds right to your ear and if it aids in clarity, feel free to split the infinitive. 'He wanted to really help his mother' sounds less stilted than 'he wanted really to help his mother.'" Fowler takes a similar view -- "a real [split infinitive], though not deisrable in itself, is preferable to either of two things, to real ambiguity, & to patent artificiality":

We will split infinitives sooner than be ambiguous or artificial; more than that, we will freely admit that sufficient recasting will get rid of any s.i. without involving either of those faults, & yet reserve to ourselves the right of deciding in each case whether recasting is worth while.

The New Fowler's is my one usage book that takes a sterner view, but even it makes clear that though in its view "all the evidence point towards the reality of the feeling that it is 'wrong' to split infinitives," "rigid adherence to a policy of non-splitting can sometimes lead to unnaturalness or ambiguity," and thus "[n]o absolute taboo should be placed on the use of simple adverbs between the particle to and the verbal part of the infinitive.

     So those in the Language Police who say that split infinitives are wrong -- as opposed to just sometimes inelegant -- aren't just prescriptivists who follow authority: They're applying a prescription that leading authorities renounce, a usage myth rather than a usage rule.

UPDATE: Kieran Healy takes the same view.

 
[Eugene Volokh, 7:34 AM]
OBJECTIVELY PRO-___: Last week, I suggested that it might often be wrong to call people "objectively pro-Saddam" (or words to that effect) on the grounds that their actions in fact help Saddam, even if they aren't intended to. Thanks to a reader, I've found an ally -- none other than George Orwell.

     Orwell, of course, is probably the most famous user of the "objectively pro-___" locution; in 1942, he wrote:

Pacifism is objectively pro-fascist. This is elementary common sense. If you hamper the war effort on one side, you automatically help out that of the other.

I suspect that many people who use the phrase today are referring to Orwell.

     Two years later, though, Orwell took a different view. In a Dec. 8, 1944 column (which I've checked in print, in Collected Essays, vol. 3, pp. 288-289 (1968)), he wrote:

The same propaganda tricks are to be found almost everywhere. It would take many pages of this paper merely to classify them, but here I draw attention to one very widespread controversial habit -- disregard of an opponent’s motives. The key-word here is "objectively".

     We are told that it is only people’s objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are "objectively" aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. The same argument is applied to Trotskyism. Trotskyists are often credited, at any rate by Communists, with being active and conscious agents of Hitler; but when you point out the many and obvious reasons why this is unlikely to be true, the "objectively" line of talk is brought forward again. To criticize the Soviet Union helps Hitler: therefore "Trotskyism is Fascism". And when this has been established, the accusation of conscious treachery is usually repeated. . . .

     In my opinion a few pacifists are inwardly pro-Nazi, and extremist left-wing parties will inevitably contain Fascist spies. The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like. It is this habit of mind, among other things, that has made political prediction in our time so remarkably unsuccessful.

Naturally, appeals to authority can only count for so much, especially when the authority has contradicted itself. But it seems to me that Orwell's 1944 sentiments are quite persuasive.

 
[Eugene Volokh, 5:24 PM]
REPUBLICAN HEAD COUNT ON LOTT? I pass this along, for whatever it's worth, from the Web site of Government Executive magazine, citing CongressDaily:

At least 17 Republican senators are leaning toward voting for incoming Senate Majority Leader Trent Lott, R-Miss., to remain party leader next year, while only seven senators indicated that they plan to oppose him, according to an informal CongressDaily survey conducted Wednesday. But the tally belies the difficulty Lott faces in finding the nine remaining votes to give him the 26 he needs to cling to power.

While Sen. Lincoln Chafee, R-R.I., became the first Republican senator to ask Lott to step down, 26 current Republican senators remain either undecided or silent about how they would vote in a closed-door referendum on Lott's tenure slated for Jan. 6. Among that group are Sens. Don Nickles, R-Okla., and Bill Frist, R-Tenn., who are both thought to have their eye on Lott's job. A 51st Republican senator will be appointed later this week to fill in for former Sen. Frank Murkowski, R-Alaska, who was elected governor.

What are these people thinking? Lott, it seems to me, has become a huge liability to the Republican Party; as I understand it, he hadn't had that great a reputation before this fracas, but now keeping him as Majority Leader would be a disaster. My guess is that much of this has to do with personal loyalty, and perhaps something has to do with the possible problems with his replacements (about whom I know little). And I recognize that the Republican Senators are seasoned politicians, who presumably know much more about such matters than many outside commentators do. But, boy, I sure hope that the 17 won't grow to 26, or that Lott decides to do the right thing on his own.

 
[Eugene Volokh, 4:09 PM]
A SMALL PROBLEM WITH HOW THE WASHINGON POST / ABC NEWS POLL WAS REPORTED: The Post article reported that "More than half -- 54 percent -- feared that Bush will act too quickly to use force, while 40 percent worried that he won't move quickly enough." That's pretty odd -- 94% of people are either fearful or worried, and only 6% think Bush will do it just right?

     The trouble is that the question only gave people two options: "Which concerns you more: that the Bush administration (might move too quickly) to take military action against Iraq, or the Bush Administration (might not move quickly enough)?" 5% volunteered "neither," and 2% expressed no opinion, but the question was (presumably intentionally) structured to pressure people into expressing one or the other concern.

     This phrasing might be useful in some cases, but one should be very careful about how one reports the results of questions that are phrased this way. And simply reporting that "54 percent . . . feared" one thing and "40 percent worried" about the other is not a sound way of reporting this. All we know is that when faced with a choice between these concerns, 54% chose one and 40% chose the other -- this tells us nothing about how many people are actually "fear[ful]" or "worried" about this, and how many people aren't terribly concerned that the Administration will err at all (though of the ways in which the Administration could err, they are more troubled by one or the other).

 
[Eugene Volokh, 4:01 PM]
WASHINGTON POST / ABC NEWS POLL RESULTS: They're available here. Apropos Iraq -- the subject of my earlier post about the L.A. Times poll -- here are some interesting findings:

1. "Which political party, the Democrats or the Republicans, do you trust to do a better job handling . . . . the situation with Iraq and Saddam Hussein?" 56-30 in favor of the Republicans.



2. "Do you approve or disapprove of the way Bush is handling the situation with Iraq and Saddam Hussein?" 58-37 approve.



3. "Would you favor or oppose having U.S. forces take military action against Iraq to force Saddam Hussein from power?" 62-35 favor (41 favor strongly, 20 favor somewhat, 15 oppose somewhat, 20 oppose strongly).



4. The poll then asked those who favored military action, "Would you favor or oppose . . . having U.S. forces take military action against Iraq, even if U.S. allies oppose such action?" Aggregating those who oppose military action generally and those who favor it generally but oppose it in these circumstances, the result was 52-42 against.



5. "Would you favor or oppose . . . having U.S. forces take military action against Iraq, even if the United Nations opposes such action?" 58-37 against (calculated the way described in point 4 above).



6. "Would you favor or oppose . . . a major U.S. bombing campaign against Iraqi military targets?" 50-45 favor (calculated the way described in point 4 above).



7. "Would you favor or oppose . . . a U.S. invasion of Iraq with ground troops?" 50-45 oppose (calculated the way described in point 4 above).



8. "Would you favor or oppose . . . a U.S. invasion of Iraq with ground troops, even if it means a significant number of U.S. military casualties?" 63-30 oppose (calculated pretty much the way described in point 4 above).



9. "Do you think the Bush Administration has or has not done enough to try to win support from other countries for taking military action against Iraq?" 66-31 has done enough.



10. "Do you think Bush has presented enough evidence showing why the United States should use military force to remove Saddam Hussein from power, or would you like him to present more evidence?" 58-40 would like more.



11. "Which concerns you more: that the Bush administration (might move too quickly) to take military action against Iraq, or the Bush Administration (might not move quickly enough)?" 54 too quickly, 40 not quickly enough, 5 volunteered "neither."

There are lots of other questions, but a few observations:

• Americans are hesitant about military action against Iraq, unless it's done with multilateral support, and done with little risk to American soldiers -- which, I think, means, hesitant about it unless it's done under the best-case scenario.



• At the same time, they generally support the Administration's actions, even though the Administration has seemed willing to act unilaterally, and has been talking about actions (such as commitment of ground troops) that involve serious risk to American soldiers.



• The answers to the questions can be treated as if they were consistent, but it seems more likely that they aren't terribly consistent -- which probably reveals that most respondents don't have firmly established, clear views on the subject.



• My tentative conclusion: The Administration should lead, without focusing too much on the polls. Public opinion isn't an existing quantity to be deferred to, but a fluid, unsettled set of attitudes that will likely be highly responsive to firm steps that the Administration takes -- especially, of course, if those steps seem successful.

UPDATE: The original version of this post erroneously described the results in items 4 through 8 as covering only the views of those people who favored the war generally; this rested on a misreading of the data (I focused on the "(IF FAVOR)" mentioned under item 17 in the study, but missed the "(NET ALL RESPONDENTS)" notation on the summary table). Whoops!

     Many thanks to reader Dan Lewis for pointing this out. And apropos Erik Jaffe's post above (which was posted before I added this update), I hope my mistake is seen as evidence merely of stupidity, and not venality.

 
[Eugene Volokh, 3:41 PM]
JOKES ABOUT FOREIGN COUNTRIES: InstaPundit excerpts a Boston Herald article that says:

John Kerry, puffed with righteous indignation, waded into the Trent Lott furor, demanding the Republican's head on a platter.

"There can never be an appearance of racism or bigotry in any high position of leadership,'' he declared.

Funny, but that's pretty much what prominent Italian-Americans were saying about Kerry the morning he tried to come off as droll on the Don Imus show, quipping, "The Iraqi army is in such bad shape, even the Italians could kick their butts.''

State auditor Joe DeNucci led the angry backlash, charging, "He wouldn't have the guts to say that about Jews or blacks,'' prompting a Kerry spokeswoman to suggest DeNucci cool his jets, that the senator was obviously being facetious. . . .

The article goes on to analogize Lott's remarks to Kerry's, and suggest that Lott should be cut more slack than he's been getting.

     It seems to me that this analogy just doesn't fly, for several reasons, chief of which is that Kerry was speaking about a foreign country. Criticizing the weakness of a foreign army may be seen as a mild insult in international circles, even when done in jest, but countries (and their citizens) generally don't take it too personally. Criticizing domestic American groups -- such as Jews or blacks -- is seen (rightly, in my view) as more insulting. Suggesting, even lightheartedly (though not quite facetiously) that American segregation might have been a good thing is seen as more offensive.

     It might be interesting to explore the reasons for this different treatment about comments about foreigners and comments about Americans. One difference, I suspect, is that people expect more respect from their own nation's officials than they do from foreign nations' officials. Another difference is that the past or present bad behavior (even cowardice) of foreign armies can be put off to the errors of politicians or bureaucrats: The Italians and the French have gotten a reputation as inept and too prone to surrender, but I doubt that the stereotype really extends to the supposed cowardice or folly of the typical soldier -- it's certainly quite possible that, with proper leadership, the French could have been as successful in World War II as they often were in the early 1800s (until that little Russian mistake), and of course the French didn't surrender in World War I, though I don't know whether they fought particularly wisely or effectively. There might well be other differences, too.

     But in any event, casting aspersions -- seriously or humorously -- on the Italian army strikes me as not really analogous to casting aspersions on Italian-Americans, Jews, or blacks, or to suggesting that America would have been better off had Strom Thurmond won in 1948.

 
[Eugene Volokh, 1:13 PM]
FINISHED DRAFTING MY COPYRIGHT EXAM -- finally! What a relief (and just in time, since the exam will be administered tomorrow). Thirty questions (26 multiple choice, 4 short answer) chock full of trickiness and malice. Bwahaha!

 
[Eugene Volokh, 10:51 AM]
GREAT OP-ED BY ABIGAIL THERNSTROM in the New York Times today, on Lott but also on much more. (Thanks to Andrew Sullivan for the pointer.)

 
[Eugene Volokh, 7:47 PM]
GENDER GAP: Here's an item from the L.A. Times poll that the L.A. Times story didn't even mention:

Q56: Suppose U.N. weapons inspectors conduct inspections in Iraq and find no evidence of weapons of mass destruction. Would you then favor or oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power? . . .

	ALL	DEM	IND	REP	LIB	MOD	CON	MEN	WOM
Favor (Net)	41	37	39	51	36	30	53	37	45
Favor strongly	25	19	27	32	22	16	34	27	23
Favor somewhat	16	18	12	19	14	14	19	10	22
Oppose (Net)	49	56	53	37	58	56	38	55	43
Oppose somewhat	22	17	25	25	19	27	21	26	18
Oppose strongly	27	39	28	12	39	29	17	29	25
Don’t know	10	7	8	12	6	14	9	8	12

If no evidence of weapons of mass destruction were found, men would oppose the war 55-37, but women would be evenly split (45-43 in favor, but the gap is statistically insignificant). Surely runs against the conventional wisdom of belligerent men / peaceful women. On the other hand, on many other questions, women seem less supportive of Bush's foreign policy, and ore pessimistic about the outcome of a possible war; what's more, on Q 63, which asks "Suppose President George W. Bush decides to order U.S. troops into a ground attack against Iraqi forces. Would you support or oppose that decision?," men say "support" by 64-33, and women only by 52-37. Mighty odd -- does this mix of data carry some deep hidden insight, is this a reflection of the possibility that many voters' views are rather ill-formed and may thus yield seemingly inconsistent results, or is there an error in the polltakers' reporting of the data?

 
[Eugene Volokh, 7:24 PM]
THE L.A. TIMES IRAQ WAR POLL -- BURIED ITEM AND MADE-UP "CONCERN": Here's what the L.A. Times story about its latest poll says, in paragraphs #2 through #4:

[I]n the absence of new evidence from U.N. inspectors, 72% of respondents, including 60% of Republicans, said the president has not provided enough evidence to justify starting a war with Iraq.

The results underscore the importance of the outcome of U.N. arms inspections underway in Iraq if the Bush administration expects to gain clear public support for an attack.

"I'm not against [war] if it is necessary," said 59-year-old Kramer Smith, a preacher, carpenter and registered Republican from Bloomfield, Iowa, one of a number of respondents who explained their views in follow-up interviews. "But I think we need to be pretty sure before we start pulling in the big guns. If they could put their hands on evidence of real production of weapons of mass destruction, then I would say go ahead and do it." . . .

(Slate mentions this item, and I believe I heard NPR mention it this morning, too.) But then paragraph #15 says, without elaboration:

If U.N. inspections fail to turn up evidence of Iraqi weapons programs, almost half of respondents said they would oppose war. Only 41% would favor war, and 10% said they don't know whether they would favor or oppose.

Yup, that's right: If "U.N. weapons inspectors . . . find no evidence of weapons of mass destruction," 72% of all respondents say, then "George W. Bush has [not] already provided enough clear evidence to go to war with Iraq" but rather "[needs] to provide more hard evidence before war is declared on Iraq." But under the same no-new-evidence condition, only 49% of respondents would say that they would "oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power." That means that 23% (nearly 1/3 of the 72% who think Bush hasn't provided enough clear evidence) apparently think that Bush hasn't provided enough clear evidence, but that we should go to war with Iraq anyway:

Q56: Suppose U.N. weapons inspectors conduct inspections in Iraq and find no evidence of weapons of mass destruction. Would you then favor or oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power? . . .

	ALL	DEM	IND	REP	LIB	MOD	CON	MEN	WOM
Favor (Net)	41	37	39	51	36	30	53	37	45
Favor strongly	25	19	27	32	22	16	34	27	23
Favor somewhat	16	18	12	19	14	14	19	10	22
Oppose (Net)	49	56	53	37	58	56	38	55	43
Oppose somewhat	22	17	25	25	19	27	21	26	18
Oppose strongly	27	39	28	12	39	29	17	29	25
Don’t know	10	7	8	12	6	14	9	8	12

Why isn't this the more relevant question to stress in paragraphs #2-4, since it goes to what Americans actually think Bush should do, and to what importance they actually attach to U.N. arms inspection, rather than just to whether they think Bush has done a good job of making his case?

     (Alternatively, maybe the juxtaposition of the 72% saying the president hasn't provided enough evidence to justify a war against Iraq, but only 49% saying they oppose the war against Iraq, suggests that some respondents haven't fully understood one or both of the questions, or thought through the issue enough to have a fixed view of the matter. If that's so, then that undermines the general value of the survey, no?)

     CONCERN: One more small item -- the story says that "Respondents also expressed concern that the president may not be getting balanced information from his advisors. Fifty-one percent of respondents said they believe Bush's advisors favor going to war; 20% said the advisors present a balanced view; and 11% said the advisors are opposed to war. Roughly a fifth said they are not sure whether Bush's advisors favor or oppose war." The numbers are in the survey, but the "concern" is entirely made up by the Times. The question reads:

Thinking now about the advice George W. Bush is given on the subject of Iraq by his advisors. . . . Do you believe that the president’s advisors present a balanced view for and against military action in Iraq, or do you think his advisors mostly favor military action, or do you think his advisors mostly oppose military action in Iraq?

First, the question is ambiguous -- people can both believe that the advisors are presenting a "balanced" (in the sense of a fair) view, and that they mostly favor military action. Second, while I suspect that most respondents would resolve this ambiguity by interpreting "balanced" as having its alternate meaning of "equally representing both sides," this would just mean that none of the possible answers necessarily express "concern": One can believe that the advisors mostly favor war, and not be at all concerned about that.

     Now I should stress that this is far from the worst misreporting of poll results that I've seen; and even if the Times has no political ax to grind here, newspapers naturally tend to highlight the most dramatic findings and the most dramatic spins. But it shows that (1) the coverage of this poll is somewhat flawed, (2) there's no substitute for looking at the underlying poll, and not just at the story, and (3) it's great to have the Web, without which I highly doubt that the raw(ish) data that I cite would have been conveniently been made available.

 
[Eugene Volokh, 7:23 PM]
REPUBLICAN CIVIL RIGHTS COMMISSION APPOINTEES ON LOTT:

As Republican appointees to the United States Commission on Civil Rights, we deplore Senator Trent Lott's December 5, 2002 statement that if Strom Thurmond had been elected president in 1948 "we wouldn't have had all these problems over all these years."

The central issue on which Thurmond ran was support for racial segregation. Senator Lott thus lends credibility to the view that such
civil rights advances as President Truman's executive order mandating an end to racial segregation in the U.S. armed forces, the Supreme Court's decision in Brown v. Board of Education, the Civil Rights Acts of 1957 and 1964, and the Voting Rights Act of 1965 were grave mistakes. Certainly, in 1948, Strom Thurmond opposed all of them.

This is a particularly shameful remark coming from a leader of the Republican Party, the party of Abraham Lincoln, and the party that
supported all of these essential steps forward far more vigorously than did the Democratic Party, which at the time was the home of
congressional southerners committed to white supremacy.

The civil rights era was a shining moment in American history. We believe Senator Lott agrees, and invite him to join us in celebrating
the revolutionary change in the status of African Americans that flowed from a movement in which blacks and whites joined hands to make a better America.

Abigail Thernstrom
Jennifer C. Braceras
Peter N. Kirsanow
Russell G. Redenbaugh
Commissioners, U.S. Commission on Civil Rights

They don't call on Lott to resign, though I don't think that such calls would be part of the role of Commissioners -- but the word "shameful" communicates well, I think, the strength of their condemnation.

 
[Eugene Volokh, 5:21 PM]
REP. DAN BURTON AND DRUG DECRIMINALIZATION? Radley Balko writes (thanks to InstaPundit for the pointer) that

In a little noticed hearing of the House Government Reform Committee last week, Indiana Congressman . . . and longtime drug warrior Dan Burton made some stunning comments. In a hearing entitled "America's Heroin Crisis, Colombian Heroin and How We Can Improve Plan Colombia," Burton stopped just a hair short of advocating the decriminalization of drugs.

Balko includes a transcript of the hearing, which is very interesting reading.

     My friend and colleague Mark Kleiman, who's one of the nation's top drug policy experts, has an even more interesting analysis. I can't do it justice, but here are a few key paragraphs.

Making heroin legal would benefit crime victims and current heroin addicts at the expense of marginal heroin addicts -- those not addicted under current policy who would become addicted if it were legal. It would also benefit those who would otherwise have become involved in heroin dealing (which is a superficially attractive but predictably disastrous career choice) and who under the new conditions would stay within the legal economy. Since the crime victims, drug dealers, and current addicts are concentrated in poor neighborhoods, where heroin is already readily available, and the marginal addicts are mostly non-poor, the bulk of the benefits of legalization go to the inner city and the bulk of the costs go to people who voted for Dan Burton.

Now given a straight-up choice, I'd rather protect people from one another than from themselves, and would be reluctant to help the better-off at the expense of the worse-off or whites at the expense of blacks and Latinos. If legalizing heroin led to only a 50% increase in the number of heroin addicts, I'd be for it.

But what if it led to a fivefold increase, from the roughly 1 million we now have to 5 million? That would still be only a third of the number of problem drinkers, which is the best estimate I have of the number of people likely to get in trouble with a legal intoxicant that has a significant "capture rate" from occasional use to abuse and dependency. (Heroin would probably be less popular than alcohol even if it were legal, but it would probably have a higher "capture rate.") If that were the result, I think I'd prefer to stick with our current laws.

Read the whole thing -- I'm not sure that I fully agree with it, but it's much worth thinking about.

 
[Eugene Volokh, 3:58 PM]
AMERICAN LAW INSTITUTE: I was delighted to hear today that I've been accepted as a member of the American Law Institute (the organization that does the Restatements, some Model Codes, and other cool projects).

 
[Eugene Volokh, 3:28 PM]
IDIOTS: A cautionary tale about the importance of understanding the big picture before judging the rationality of people's responses (from Gerd Gigerenzer, Adaptive Thinking: Rationality in the Real World p. 265 (2000)):

A small town in Wales has a village idiot. He once was offered the choice between a pound and a shilling, and he took the shilling. People came from everywhere to witness this phenomenon. They repeatedly offered him a choice between a pound and a shilling. He always took the shilling.

The idiot!