[Eugene Volokh, 12:10 PM]
THE ENGLISH LANGUAGE can be very complicated for immigrants like me -- somehow I never learned the subtle distinction between "want" and "wish" that seems to be invoked by your learned journalist, Robert Fisk (emphasis added):

[M]any Iraqis are now asking an obvious question: how many days? Not because they want the Americans or the British in Baghdad, though they may profoundly wish it. But because they want this violence to end: which, when you think of it, is exactly why these raids took place.

Thanks to the Politburo for the pointer; judging by their name, they must be good Russians like me (I'm sure the name was Moynihansky before he changed it), and appear to be equally perplexed by your highly nuanced language.

UPDATE: OK, on reflection I wonder if I might have been a bit ungenerous to Fisk -- perhaps he was the victim of an editing or publication error, and these errors sometimes do happen. I was influenced by my judgment that Fisk's reasoning has been so foolish in the past that this increases the likelihood of the "Fisk folly" explanation as opposed to "editor error" explanation; but perhaps this was a mistake.

     Also, just to be clear: I realize that "want" and "wish" may bear subtly different meanings in some situations. I just don't think that they can reasonably do so here.

 
[Eugene Volokh, 11:55 AM]
INTERVIEWING IRAQI CITIZENS IS NOT RACIAL PROFILING: Fellow lawprof Eric Muller points this out; see also the post immediately below that one, and some posts from me about this subject a few months ago, here and here. This doesn't mean the policy is necessarily sound (a difficult question that I'm not really competent to answer); and certainly the policy might be implemented in unconstitutional or unjust ways, for instance if it leads to illegal searches or arrests. But it's not the same as racial profiling or ethnic profiling.

 
[Eugene Volokh, 6:46 PM]
A BRITISH LIEUTENANT COLONEL'S SPEECH: Reader Robert Fairbarn pointed me to this Times (London) article, which quotes a speech attributed to "Lieutenant-Colonel Tim Collins, the 42-year-old commander of The Royal Irish battle group." I'm not sure I'd fully endorse the article's extraordinary praise for the speech, but it seems to me that parts are indeed very good, so I thought I'd pass it along:

The enemy should be in no doubt that we are his Nemesis and that we are bringing about his rightful destruction. There are many regional commanders who have stains on their souls and they are stoking the fires of Hell for Saddam. As they die they will know their deeds have brought them to this place. Show them no pity. But those who do not wish to go on that journey, we will not send. As for the others, I expect you to rock their world.

We go to liberate, not to conquer. We will not fly our flags in their country. We are entering Iraq to free a people, and the only flag that will be flown in that ancient land is their own. Don’t treat them as refugees, for they are in their own country.

I know men who have taken life needlessly in other conflicts. They live with the mark of Cain upon them. If someone surrenders to you, then remember they have that right in international law, and ensure that one day they go home to their family. The ones who wish to fight, well, we aim to please. If there are casualties of war, then remember, when they woke up and got dressed in the morning they did not plan to die this day. Allow them dignity in death. Bury them properly, and mark their graves.

You will be shunned unless your conduct is of the highest, for your deeds will follow you down history. Iraq is steeped in history. It is the site of the Garden of Eden, of the Great Flood, and the birth of Abraham. Tread lightly there. You will have to go a long way to find a more decent, generous and upright people than the Iraqis. You will be embarrassed by their hospitality, even though they have nothing . . . .

There may be people among us who will not see the end of this campaign. We will put them in their sleeping bags and send them back. There will be no time for sorrow. Let’s leave Iraq a better place for us having been there. Our business now, is north.

 
[Eugene Volokh, 6:33 PM]
"THE COMMAND POST": A very good war news blog. Yeah, I'm sure you're laughing at me, saying "He thinks this is news? I found it minutes ago." But just in case you aren't, check it out.

 
[Eugene Volokh, 6:31 PM]
A PICTURE IS WORTH 1000 WORDS: But which thousand? Kos implicitly suggests one set; Tacitus urges another. Tacitus has by far the better of the argument, I think. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 6:22 PM]
ELEANOR CLIFT ON BUSH: Eleanor Clift's msnbc.com column -- which is apparently also in Newsweek -- is just awful. I'm supposed to be proofreading my book proofs, so I can't give it the time that it deserves, but the ratio of personal attacks to evidence is just remarkable. What's striking is how perfectly normal behavior, behavior that politicians routinely engage in (and probably should engage in), is portrayed as something pathological. Just a few examples:

1. From the second paragraph:

   Bush has personalized this war to such an extreme that even if American forces take over all of Iraq and find weapons of mass destruction, the war will not be judged a success unless Saddam is captured or his body is found. It’s a Bush family trait to turn everything into a grudge match.

   First, the claim in the first sentence, even taking account of the hyperbole, is nonsense. The attacks on Hussein weren't of the "Hussein must die" variety; they were "we've got to kick him out." If Saddam somehow vanishes, a few people will be upset -- but I have no reason to think that Bush would be, or that much of the public would be. Second, to the extent that people will be upset, that has little to do with Bush's "personaliz[ation]"; people are naturally upset when a bad guy seems to have evaded justice. Would people have been happy if, for instance, Mussolini hadn't been caught? Sure, and not because it was somehow a Roosevelt trait to turn everything into a grudge match -- it's a human family trait to want to see evil people punished.



2. Immediately following:

   Anybody who crosses Bush gets the treatment. During last fall’s congressional races, Republican operatives likened Democratic leader Tom Daschle to Saddam Hussein because he stood in the way of passing Bush’s legislation. Daschle is again in the crossfire for criticizing Bush’s failure to resolve the impasse over Iraq with diplomacy.

   Uh, harshly criticizing political adversaries who try to obstruct your policies (and who, like Daschle, are relatively pugnacious about it) isn't a Bush family trait, either -- it, too, is a pretty normal trait among many humans.




3. Bush miscalculated when he assumed other nations would fall into line, but that’s another family trait: it’s called “to the manor born,” or “to the presidency born,” meaning that a family of Bush’s social status that has spawned two presidents assumes if they think it’s right, it’s right. A streak of religiosity further strengthens Bush’s belief in the rightness of his cause, which he initially called a crusade.

   Oh, yes, most prominent politicians (except that pathological Bush family) are just constantly overflowing with self-doubt. Good heavens, if Reagan thought it was right, did he then agonize? What about Clinton? Were they from families of high social status? Given that they weren't, might attributing Bush's confidence to his "family trait[s]," his "social status," or for that matter his "religiosity" (not a prominent trait in Reagan's or Clinton's personality) be just a bit questionable?

Oh, there's more, there's more, but as they say in the math books, responding to the rest is an exercise left to the reader -- I've got work to do. But this piece was just so awful that I couldn't resist.

 
[Eugene Volokh, 5:43 PM]
WHAT ANTIWAR PROTESTERS WHO REALLY WANT TO SAVE IRAQI LIVES SHOULD BE DOING: William Saletan writes, in Slate:

If you're an anti-war protester or politician, this theory of warfare [where the American military is trying to win by getting Iraqi soldiers to surrender, with minimum loss of Iraqi life] should change the way you think and act. Your efforts to generate resistance to the war before there is any evidence of killing, much less atrocities, contribute to the political strength of the enemy regime. You encourage uncertainty about the war's outcome, increasing the likelihood that the regime's soldiers will fight and die. You make it more difficult to separate the regime from its people. You frustrate the tipping [i.e., tipping the enemy forces from enmity to surrender] and bring on the crushing.

If you want to minimize the killing, stop resisting the war. Instead, do what you can to make the war transparent and to hold your government accountable for unnecessary deaths. Help the media and human rights organizations monitor the battlefield. Help them get reports and pictures to the people of your country and the world. Build an incentive system that will strengthen your government's will to spare lives. Its ability will do the rest.

 
[Eugene Volokh, 5:26 PM]
REPEAT AFTER ME: "I will not believe scientifically invalid polls." "I will not believe scientifically invalid polls." "I will not believe scientifically invalid polls, even if I like their results."

     Look, I'd like to think that most MTV viewers support the war; in fact, they might well support the war. But unless I misunderstand the way the poll described here (see also the InstaPundit link) was conducted, that poll doesn't tell us that. It doesn't tell us much of anything, because it counts only those people who choose to vote in it (key phrase: "Among people voting in MTVNews.com's polls . . .," and see also this sample of an mtv.com poll), and we have no reason to believe that they're a representative sample of MTV viewers, or of any other group.

UPDATE: Drat, The Corner falls for this, too.

 
[Eugene Volokh, 2:22 PM]
PLACES THAT HAVE NEVER BEEN RULED BY A EUROPEAN NATION: So here's the question for the weekend -- which inhabited countries (or parts of countries) in the world have never been ruled by a European nation? If you know the answers, please e-mail me at volokh at law.ucla.edu; if you believe your claim would be controversial, please check it first, and, if possible, e-mail me a URL supporting your assertion. There aren't a lot, but there are, I think, at least half a dozen or so.

     The answer will be posted early next week; I probably won't get a chance to respond individually to each response, but I will give credit to those who get pretty much the whole list. If you submit a response and then need to amend it, please resubmit your entire amended response, so I don't have to manually combine your messages. Please do not query what the definition of "ruled" is; yes, I know there's ambiguity there, but I'm not inclined to take the time needed to resolve it . . . .

 
[Eugene Volokh, 1:53 PM]
WHOOPS: It turns out I inadvertently marked a bunch of my blog posts today as drafts, and then was scratching my head, wondering why they hadn't come up . . . . Darn; well, now I've taken care of that, and they're posted below (marked with the original times that I composed them).

 
[Eugene Volokh, 1:48 PM]
THERE ARE NO LAZY READERS -- ONLY BUSY READERS: I'm just working on a short part of the Writing section in my forthcoming Academic Legal Writing book -- it should be an obvious point, but unfortunately I've found that not all law students fully grasp it:

There Are No Lazy Readers -- Only Busy Readers

Many writing tips stress simplicity, clarity, and brevity. Avoid unneces-sary long words and complex sentences. Get to the point quickly. Keep paragraphs short. Make things easier for your readers, and keep them from losing interest.

Some writers think this advice assumes that readers are lazy or stupid; those writers feel they’re being told to “dumb down” their prose for dumb readers. After all, smart, industrious readers wouldn’t mind long paragraphs filled with long sentences and long words -- they would focus on the sub-stance, not the form.

No. Your industrious and smart readers are busy people, precisely be-cause they are so industrious and smart. They can spend only limited time and effort reading your article -- not because they’re lazy or dumb, but be-cause they have other things to do.

They can parse complex words and sentences; but this parsing takes more work than reading simpler, clearer prose. Why waste my time wading through this murk, they’ll ask themselves, when I could be working on some-thing else? You can keep their precious attention only by making things as easy for them as possible.

 
[Eugene Volokh, 1:15 PM]
IRAQI CASUALTIES: From today's Wall Street Journal editorial:

The great paradox of the escalating Iraq War is that the attacking allies want fewer Iraqi casualties than does Saddam Hussein. We can't recall another war where this was true, but the insight is crucial to understanding how this struggle is likely to unfold, and how the Iraqi dictator hopes to survive. . . .

Well put.

 
[Eugene Volokh, 11:50 AM]
NOW THIS IS DIVERSITY:

A member of Ohio's 5694th National Guard Unit in Mansfield legally changed his name to a Transformers toy.

Optimus Prime is heading out to the Middle East with his guard unit on Wednesday to provide fire protection for airfields under combat. . . .

Prime took his name from the leader of the Autobots Transformers, which were popular toys and a children's cartoon in the 1980s.

He legally changed his name on his 30th birthday and now it's on everything from his driver's licence, to his military ID, to his uniform.

"They razzed me for three months to no end," said Prime. "They really dug into me about it."

"I got a letter from a general at the Pentagon when the name change went through and he says it was great to have the employ of the commander of the Autobots in the National Guard."

Prime says the toy actually filled a void in his life when it came out.

"My dad passed away the year before and I didn't have anybody really around, so I really latched onto him when I was a kid," he said.

Well, I can't say that it's my cup of tea, and I'm not sure, for instance, that I'd want to hire someone who changed his name this way -- not the most sensible judgment, I think. But, hey, he's serving our country, and that entitles him to a good deal of slack in my book. (Thanks to Faisal Jawdat for the pointer.)

 
[Eugene Volokh, 11:35 AM]
A BIT MORE ON THE LANGUAGE POLICE: Clayton is suggesting "If this was happening . . ." to refer to something that clearly isn't happening is wrong, and that "If this were . . ." is the only proper usage. But it seems to me that even a prescriptivist should have a hard time making this claim. Prescriptivists, as I understand it, suggest that what's right and wrong in language should be decided by the authorities, and not by usage; I don't quite agree with that, but I think that even on the prescriptivists' own terms, using "If this was happening . . ." -- using the indicative instead of the subjunctive -- is proper. I cited two authorities (a usage dictionary and a grammar book) for my claim that both "If this was . . ." and "If this were . . ." are correct; I've seen no authorities that support the assertion that "If this was . . ." is incorrect.

     Now some prescriptivists might object to this analysis, because most linguistic authorities today are themselves descriptivist. But if that's the objection, then what's left of the prescriptivist argument? If prescriptivists say that right and wrong in language is determined by authority, not usage, but then reject the authorities, then what do they appeal to, other than their own preferences?

     Of course, if the claim is simply one of preference (for instance, that "If this were happening . . ." is more elegant), then I wouldn't object; I might even agree. If the claim is of functionality -- that communication would be clearer if people consistently used "if this were" when they were referring to something they know isn't so, but "if it was" when they were referring to something that might or might not be so -- then I would object less; I'm not sure that this claim is correct, but it's at least plausible. But I understood Clayton's objection to be that "If this was happening . . ." is just wrong, under the rules of the language as set forth by the linguistic authorities. And the authorities that I've consulted do not bear this out.

     I bring this up, of course, because I think this issue is emblematic of a broader point: In lots of these cases -- where the matter is the subjunctive, split infinitives, prepositions at the ends of sentences, and so on -- the prescriptivist argument isn't even tenable on its own terms. The authorities are, I think, on my side on many questions (even though I'm sometimes willing to go even against them), not on the side of the Language Police.

 
[Eugene Volokh, 11:22 AM]
CONSERVATIVE SPEAKER GIVES SPEECH IN WHICH HE CALLS HILLARY CLINTON A "WHORE": Well, that actually didn't happen, and if it did everyone would be all over the jerk, quite correctly. But New Jersey Poet Laureate Amiri Baraka -- remember him? -- said pretty much this about Condoleezza Rice (using the term "skeeza"), and few people seemed to say much about it. I did a quick LEXIS search for "baraka and condoleezza" and found all of 20 references, though the poem (the same one that caused the outcry against Baraka's anti-Semitism) is now a year and a half old.

     A column by Gregory Kane, a black Baltimore Sun columnist, published the day before yesterday puts this well:

In front of an overwhelmingly black audience of about 100 at Coppin State College, Amiri Baraka, New Jersey's Lunatic Laureate, called national security adviser Condoleezza Rice a "skeeza."

For those of you not in the know, a "skeeza" is a derogatory street term used in reference to a woman and as offensive as calling her a prostitute. It's a noxious, bilious, disgustingly sexist term and one of the worst things you could call a woman.

It is something Rice certainly is not. Baraka knows she's not. Those blacks who laughed, giggled, tittered and applauded when Baraka said it know she's not. But what was the reaction of these black folks when Baraka finished his invective masquerading as poetry that he called "Somebody Blew Up America"?

They gave him thunderous applause and a standing ovation. At no time was there the indignation that was present when O'Malley said much less about Jessamy. I guess Baraka can get away with it because he hates all the right people. . . .

When he called Rice a "skeeza," liberal black leaders who couldn't wait to get their faces in front of a camera after the Trent Lott gaffe knew Baraka was lying. We haven't heard word one from these leaders regarding Baraka and Rice . . . .

It would be nice if one of those black state legislators who voted to fund the money that was paid to Baraka would say so.

(I of course think that all New Jersey legislators, black and white, should speak up about this.)

UPDATE: InstaPundit blogs about this, and stresses that Baraka's most recent speech was at a university; this, he says, is "Academia's Trent Lott Moment." An interesting point.

 
[Eugene Volokh, 11:08 AM]
CONFEDERATE FLAGS IN HIGH SCHOOLS: The U.S. Court of Appeals for the 11th Circuit has upheld a school's power to restrict confederate flags. Other courts have done the same in the past, if there was fairly concrete evidence that the flags were likely to cause disruption in the school; the Supreme Court's Tinker v. Des Moines Independent Community School District (1969) decision allows that. But the 11th Circuit seems to be going further in its rationale, endorsing the lower court opinion which says:

Second [independently of the Tinker rationale], even if disruption is not immediately likely, school officials are charged with the duty to "inculcate the habits and manners of civility as values conducive both to happiness and to the practice of self-government." To
do so, they must have the flexibility to control the tenor and contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption.

The lower court opinion cites Bethel School Dist. No. 403 v. Fraser (1986) for this proposition, and concludes that

Part of a public school's essential mission must be to teach students of differing races, creeds and colors to engage each other in civil terms rather than in "terms of debate highly offensive or highly threatening to others." . . . There is no evidence that the school district has attempted to suppress civil debate on racial matters, but the district had concluded that the display of certain symbols that have become associated with racial prejudice are so likely to provoke feelings of hatred and ill will in others that they are inappropriate in the school context.

     Now it's not easy to disentangle the "disruption" justification (which rests on Tinker) from the "civility" justification (which rests on Fraser), in part because uncivil speech often causes disruption. But there is a difference, especially since Tinker requires some plausible evidence of likely disruption, and not just sheer speculation.

     And I think the court's "civility" rationale overreads Fraser. Fraser upheld a school's punishment of a student for giving a speech laced with sexual innuendo; the decision specifically stressed that "[u]nlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint." But to the extent that the Confederate flag is offensive, that's so precisely because of its viewpoint.

     Now I think there are plausible arguments for the school district's restriction, and even for far broader restrictions on speech in government-run schools, including restrictions that suppress particular political messages. Justice Black, for instance -- generally a free speech maximalist -- dissented in Tinker, and his dissent makes a powerful case. But I don't think the Eleventh Circuit decision is consistent with the existing rules that Tinker and Fraser set forth; and at least it's worth noting that it considerably broadens high school administrators' latitude to suppress their students' political speech.

 
[Eugene Volokh, 8:56 AM]
HE WASN'T IN A SUBJUNCTIVE MOOD: As the resident public defender for Language Court cases, I thought I'd come to the defense of people who say "If this was happening in every city . . ." instead of "If this were . . . ." (I defend them only against the were/was accusation -- on the merits, my coblogger's criticism was entirely apt.)

     As William & Mary Morris's Harper Dictionary of Contemporary Usage says (quoting Porter Perrin), "the subjunctive is a trait of style rather than of grammar and is used by writers chiefly to set their language a little apart from everyday usage." Likewise, the Oxford English Grammar says that "The past indicative was is more usual than subjunctive were in contexts that are not formal." Thus, today, both the subjunctive ("If this were" used to refer to things that are known not to be so) and the indicative ("If this was") are grammatically correct, at least in spoken usage. One may prefer one to the other on esthetic or functional grounds, but neither is wrong.

 
[Eugene Volokh, 8:40 AM]
NONCOMMERCIAL CHILD PORNOGRAPHY AND THE COMMERCE CLAUSE: Reading U.S. v. McCoy reminds me that at least one past case, U.S. v. Corp, from the Sixth Circuit, reached a rather similar result. I say "similiar" because Corp can be read not as holding the statute unconstitutional as applied to particular cases, but rather as holding that the Constitution required the statute to be interpreted narrowly, and the defendant wasn't covered by the narrow interpretation. Nonetheless, this case is quite close to Judge Reinhardt's opinion in McCoy -- and, for whatever it's worth, the panel there consisted of three Reagan appointees.

 
[Eugene Volokh, 10:17 PM]
20% SURRENDER: Let's hope this is accurate:

British military sources told Fox News that 20 percent of Saddam Hussein's elite Republican Guard had surrendered or were in the process of surrendering.

 
[Eugene Volokh, 9:16 PM]
THE U.N.: From, Slate's William Saletan:

"The Security Council has not failed," [German Foreign Minister Joschka] Fischer told fellow council members . . . "The negotiations on the Iraq crisis . . . have shown how relevant and how indispensable the peacemaking role of the Security Council is. There is no alternative to this."

Let's see. The Security Council negotiation process failed to give pro-war nations the legitimacy they sought. It failed to give anti-war nations an effective veto. It failed to keep the peace. A massive American-led assault on Iraq is underway -- I'd call that an alternative -- and nobody's paying attention to Fischer's urgently relevant remarks. I've underestimated the German sense of humor.

[French Foreign Minister Dominique] De Villepin followed Fischer's speech with an equally indispensable lecture on the wisdom of France. The U.N. weapons inspections, he explained, had merely been "interrupted" and would soon resume. To those who think this war will eradicate terrorism, de Villepin warned, "we say they run the risk of failing in their objectives."

Fair enough. So here are our options: the risk of failure or the certainty of it. Gentlemen, gentlemen. Your words are as compelling as your deeds.

 
[Eugene Volokh, 8:14 PM]
"FIRST CASUALTIES: 16 DEAD IN U.S. CHOPPER CRASH". 12 Britons and 4 Americans. The helicopter crashed within Kuwait; it may well have been an accident, rather than hostile fire, but the exact circumstances are apparently unknown.

 
[Eugene Volokh, 5:01 PM]
ANOTHER ARGUMENT ABOUT WAR AND PRECEDENT, from Andrew Coyne in the National Post. (Thanks to Sean Engemoen for the pointer.)

 
[Eugene Volokh, 4:59 PM]
BREAKING NEWS: If you're really desperate for breaking news, this site will generate it for you. (Thanks to Chris Lansdown for the pointer.)

 
[Eugene Volokh, 4:56 PM]
THE MOMENT OF LIBERATION: Charles Freund, at Reason's Hit & Run, passes along the following:

New York Times reporter John Burns, interviewed from Baghdad Wednesday night, was asked by Gwen Ifill of PBS' NewsHour to describe "the mood tonight on the streets of Baghdad." Here's what Burns said:

Well, you would imagine there is a great deal of apprehension ... [but] I think America should know that there is also a good deal of anticipation. Iraqis have suffered beyond I think the common understanding in the United States from the repression of the past 30 years here. And many, many Iraqis are telling us now -- not always in the whispers that we only heard in the past, but now in quite candid conversations -- that they are waiting for America to come and bring them liberty.

IFILL: They are actually anticipating ... eagerly anticipating war?

BURNS: It's very hard, though, for anybody to understand this. It can only be understood in terms of the depth of repression here, and it has to be said that this is not universal, of course. Having traveled throughout Baghdad in the last few hours, I can tell that you there are occasions when people are angry ... There are, of course, people who, because they are loyalists of the regime or out of fear or out of suspicion of America's motives, don't want this war at all....

All I can tell you is that ... the most extraordinary experience of the last few days has been a sudden breaking of the ice here with people in every corner of life coming forward to tell us that they understand what America is about in this. They are very, very fearful, of course ... and they are very concerned about the ... American military governance that they will come under afterwards.

But ... there is absolutely no doubt, no doubt that there are many, many Iraqis who see what is about to happen here as the moment of liberation.

 
[Eugene Volokh, 2:44 PM]
SADDAM'S BUNKER LOCATED, by a Volokh Conspiracy reader, as a matter of fact. Gerard Van der Leun writes:

It's obvious, isn't it. I mean, if you were Saddam where would you put the your bunker?

You'd put it deep beneath the building in which all the Western Reporters and their satellite up-links were sequestered.

Wouldn't you?

. . .

I'd like to be on record as the first person outside of Delta Force to have figured this out.

You heard it here first.

 
[Eugene Volokh, 2:20 PM]
AN UNFORTUNATE DISCOVERY ABOUT TECHNOLOGY AND SPEED: No matter how fast my Internet connection is, no matter how many war news sites I visit, and no matter how often I reload them, I cannot get news updates any faster than they are written, or than the news happens. Drat! And here I thought technology would make our lives better.

 
[Eugene Volokh, 2:16 PM]
RSS OF CNN: David Janes has put together two RSS news feeds of CNN coverage -- if you use RSS, this could be a great feature for you.

 
[Eugene Volokh, 2:13 PM]
MORE ON FEDERAL POWER AND POSSESSION OF CHILD PORN: A reader writes:

I'm not sure what the correct result is, although as you say, the Ninth Circuit's result is certainly plausible. Moreover, the real stakes here go far beyond child pornography laws. If Congress can't prohibit the intrastate possession of child pornography intended "for personal use," how can it prohibit the intrastate possession of narcotics intended for personal use? Read the analysis in the McCoy case with the word "narcotics" substituted for "child pornography," and you get a sense of its potential implications.

 
[Eugene Volokh, 12:05 PM]
REMARKABLE FEDERALISM DECISION: Just saw Orin's post below, and I'm printing out the case to read this afternoon. It may well be the correct result, both under the Court's caselaw and under a proper reading of the Constitution, which was indeed intended to considerably limit Congressional power to regulate intrastate possession. But whether or not it's correct, I predict that the Supreme Court will agree to hear the case, unless the Ninth Circuit reverses it en banc. Maybe the Justices might even affirm this; but when a court holds a federal statute unconstitutional (even in part), the Court is quite likely to consider the matter.

 
[Eugene Volokh, 11:44 AM]
A REPORT FROM THE SCALIA SPEECH: Reader Bruce Batista writes:

I attended the Scalia speech yesterday to the Cleveland City Club. Although there did not appear to be any TV cameras, there were plenty of TV reporters present -- not to mention at least 2 video cameras close to the dais along with about 6 still photographers. Your point about not wanting to be taken out of context is very cogent. As you know, Scalia has a reputation for an acid wit -- which was on vivid display yesterday. The topic for his speech was "Constitutional Interpretation." It was basically an exposition on his originalist approach to interpretation and denigration of the concept of the "living Constitution." There were probably at least 20 comments that he made which -- if shown solely by themselves, out of context -- would surely end up on somebodies "Parade of Horribles" highlight reel about conservative or Republican judicial appointments. While the numerous comments chastising conservatives would be ignored. For example, he was quick to condemn conservatives for using the "living constitution" argument to support bans on flag burning. He said, "A pox on both their houses."

As an aside, ff anyone is going to condemn Scalia for restricting "free" speech, they should also condemn the City Club -- after all, attending Scalia's speech wasn't free. Our firm paid $2500 for a table of 10 at the luncheon. And you couldn't get in without a ticket.

There really is no such thing as a free lunch.

 
[Eugene Volokh, 11:05 AM]
MESSAGES THAT START BY INSULTING THE RECIPIENT: A flurry of such messages -- generally responding to my attacking-Iraq-as-precedent piece in Slate -- led me to put my standard response to such messages on a Web page, so that I can simply link to it rather than retyping the whole thing.

 
[Eugene Volokh, 6:05 PM]
GUN SAFETY: Don't much like the picture at the top of this article. Always keep your finger off the trigger until you're ready to shoot. I mean, didn't Pulp Fiction teach us anything?

UPDATE: Matt Rustler agrees, and cites the basic weapons safety rules (crediting the Marines, who ought to know).

FURTHER UPDATE: Chris Lansdown has some notes, with an exchange he had with me about this.

 
[Eugene Volokh, 5:52 PM]
OVERWHELMING: The front page of the New York Times Web site currently contains the following blurb:

SLIDE SHOW
War Is Imminent
America's rationale for using force exposed an overwhelming opposition to war.

Hmm, I don't think we've really been overwhelmed here.

 
[Eugene Volokh, 5:07 PM]
RED, WHITE, AND BLUE: So why are these colors so common in flags? Chile, Cuba, the Czech Republic, the Dominican Republic, France, Laos, Nepal, the Netherlands, North Korea, and more -- all red, white, and blue. Russia is, too, but the blue is lighter.

     I know other colors are quite popular, too; flags of Muslim countries, for instance, generally have some green, but there's a reason for that. What's the reason for the red, white, and blue? If you know the answer, as opposed to just loosely speculating about one, please e-mail me at volokh at law.ucla.edu.

UPDATE: Virginia Postrel writes:

I'm pretty sure these colors are common on flags because prior to the invention of synthetic dyes they were among the easier colors to produce and, hence, became widely used for symbolic purposes.

Aha!

 
[Eugene Volokh, 4:48 PM]
MAUREEN DOWD: Yes, I know I'm risking a patent infringement lawsuit from Josh Chafetz, dean of Dowd-fisking, but I couldn't resist commenting on Maureen Dowd's latest:

The Perpendicular Pronoun
By MAUREEN DOWD

Sometimes I feel as if I've spent half my adult life covering a President Bush as he squares off against Saddam Hussein, an evil dictator who invades his neighbors and gasses his own people.

But while on the surface this seems like Groundhog War, the father-and-son duels in the sun with Saddam are breathtakingly different. The philosophical gulf between 41's gulf war and 43's gulf war is profound and cataclysmic -- it has sent the whole world into a frenzy -- yet it can be summed up in a single pronoun.

"The big I," as Bush senior calls it.

The first President Bush was often teased about his loopy syntax. But it was a way of speaking that signified the modesty and self-effacement his mother had insisted upon. He was so afraid to sound arrogant if he used the first person singular that he often just dropped the subject of a sentence and went straight to the verb.

"Mother always lectured us -- in a kinder, gentler way -- against using the big I," Poppy Bush said. He is so shy of "I" that he has never written a personal memoir.

Even though he came to politics with a sparse résumé, compared with his dad's stuffed one, the cocky W. was always more comfortable with the first person perpendicular. . . .

During his war overture on Monday night, W. was not afraid of the first-person spotlight: "This danger will be removed. . . . That duty falls to me as commander in chief by the oath I have sworn, by the oath I will keep."

The whole approach of the father, who had once served as U.S. ambassador to the U.N. and loved nothing more than to drag world leaders out on his cigarette boat and give them mal de mer, was a clubby "we." He and his secretary of state, James Baker, had a coalition of 90 countries for Desert Storm, and they constantly schmoozed world leaders and trying to maintain international order.

The hawks of Bush II are not afraid of disorder in the pursuit of American dominance. They have no interest in any coalition -- except their own. They see the international "we" as an impediment to joy -- and to destiny. The Bush doctrine is animated by "the big I." That self-regarding doctrine, concocted by Bill Kristol, Paul Wolfowitz and Richard Perle back when W. was still merely a presidential gleam in Karl Rove's eye, preaches preventive pre-emptive preternatural pre-eminence. . . .

Three thoughts:

1. Is it at all noteworthy that in a piece condemning the Presidential "I" -- an "I" that isn't actually much on display in her quotes from Bush (only two references) -- two of the first six words (decontracting the contraction) are the journalist's own "I"? I'm usually reluctant to psychoanalyze people, but might there a bit of subconscious projection here?



2. Beyond this, Dowd is using the wrong pronoun. The standard condemnation of people who use "I" too much is that they're too egocentric or immodest. But Dowd is faulting Bush not for being too Bush-focused, but too America-focused. America, though, is a "we," not an "I." One can claim that Bush is not concerned enough about building alliances, but that's a charge that he's using too small a "we" ("we Americans," or even "we hawks," rather than "we members of the international community"). Calling him "I"-focused is a different charge entirely -- a more serious charge, and one that to my knowledge is actually quite unfounded.



3. Finally, a small tangent -- consider this paragraph:

   The Wall Street Journal reported on Monday that even though Mr. Cheney receded into the background for months, he was choreographing events like Pluto, lord of the underground. In his undisclosed locations, he had dinner parties with anti-Saddam intellectuals and reached out to Iraqi dissidents and plotted the war with his old pal Rummy, letting Colin Powell vainly spend his prestige at the mealy-mouthed U.N.

   Seems to me that if you want to analogize someone to the lord of the underworld -- a not very flattering analogy -- you should at least get the analogy right. It's been a while since I read my mythology, but I don't think that Pluto was known for choreographing events; other than the little misunderstanding with Persephone (or Proserpine, if you prefer), he was mostly happy to stay home and wait for people to come to him. At the very least he was no more interventionist or manipulative than most of the other gods. Petty, yes, I know, but there is a point here: It's a bad sign when an author is so eager to smear someone that she's willing to throw in unfavorable analogies that don't even work as literary figures.

 
[Eugene Volokh, 3:23 PM]
WHOOPS: balockquote>A man spent hours chained to the wrong building Tuesday in an ill-planned effort to protest war with Iraq, police said.
Jody Mason padlocked himself to an entrance of the Washington State Grange building at 924 Capitol Way S., thinking it was a sub-office of the U.S. Department of Energy.

Grange employees found him about 11:45 a.m. Tuesday and asked what he was doing. . . .

Police officers used heavy-duty bolt cutters to free Mason.

"He asked for help because he didn't have the key," Olympia police Cmdr. Steve Nelson said. . . .

 
[Eugene Volokh, 1:48 PM]
USPS VS. CIA: From the Washington Post:

[We reported yesterday that] the Central Intelligence Agency has been stuffing unstamped postcards into resident