[Eugene Volokh, 11:26 PM]
NOT THE MOST EVENHANDED SORT OF POLL QUESTION: Here it is, from a Washington Post poll:

15. As you may know, Bush has proposed a 726 billion dollar tax cut over the next 10 years. The Senate has voted to reduce that to 350 billion dollars in order to help pay for the war, reduce the deficit and shore up the Social Security fund. Do you support or oppose this reduction in Bush's proposed tax cut?

The result was 65% support and 29% oppose -- but might this have been influenced by the fact that the question provided the argument for the reduction -- complete with three appealing-sounding subarguments -- but didn't provide the argument against it? After all, the tax cut's backers must have some reasons why the reduction should take place as planned; might it have been worth mentioning those reasons, given that the Post seemed to think it was worth mentioning the reasons for the other side?

     Incidentally, here's how the Post story itself characterized the poll:

The survey found that 65 percent of the public favors the Senate-passed plan to reduce Bush's $726 billion tax cut by more than half in order to pay for the war, shore up Social Security and reduce the deficit -- a view shared equally by Republicans as well as by Democrats and political independents.

Now a highly skeptical reader might have read this and inferred that the respondents were prompted with the possible reasons to support the reduction. But I suspect that many readers wouldn't have drawn this inference; they would probably have thought that the question simply asked "do you favor the Senate-passed plan to reduce Bush's $726 billion tax cut by more than half?" or some such, and the "in order to . . ." clause was the Post's way of explaining to readers (not to the poll's respondents) why the Senators supported such a reduction. And I strongly suspect that the great majority of readers did not think that the question only gave the reasons for the reduction and not the reasons to oppose the reduction. Fortunately, on the Web people can click on the small link labeled "Complete Poll Results" on the right-hand side of the screen and see the text of the questions; but I doubt that readers of the print edition saw the question text reported anywhere.

     Is this the way that supposedly impartial media organizations ought to conduct and report on polls?

     (Thanks to lawprof David Bernstein for spotting this and passing it along.)

 
[Eugene Volokh, 11:00 PM]
ONE REASON MANY IRAQIS SEEM PRO-SADDAM: This is from the Arab News, not exactly a mouthpiece of the Bush Administration:

When we finally made it to Safwan, Iraq, what we saw was utter chaos. Iraqi men, women and children were playing it up for the TV cameras, chanting: “With our blood, with our souls, we will die for you Saddam.”

I took a young Iraqi man, 19, away from the cameras and asked him why they were all chanting that particular slogan, especially when humanitarian aid trucks marked with the insignia of the Kuwaiti Red Crescent Society, were distributing some much-needed food.

His answer shouldn’t have surprised me, but it did.

He said: “There are people from Baath here reporting everything that goes on. There are cameras here recording our faces. If the Americans were to withdraw and everything were to return to the way it was before, we want to make sure that we survive the massacre that would follow as Baath go house to house killing anyone who voiced opposition to Saddam. In public, we always pledge our allegiance to Saddam, but in our hearts we feel something else.”

Different versions of that very quote, but with a common theme, I would come to hear several times over the next three days I spent in Iraq.

The people of Iraq are terrified of Saddam Hussein. . . .

(Thanks to Kathryn Lopez at NRO's The Corner for the pointer.)

 
[Eugene Volokh, 7:42 AM]
SLIDESHOW OF PHOTOS OF OUR KILLED IN ACTION / MISSING IN ACTION SOLDIERS: The Spokesman-Review (Spokane and Couer d'Alene) put it together.

 
[Eugene Volokh, 6:15 PM]
WE SHOULD BE SLOW TO COMPARE PEOPLE TO HITLER, but when they do it themselves, it seems fair to quote them:

At the state funeral of one of his cabinet ministers, [President Robert Mugabe of Zimbabwe] said: "I am still the Hitler of the time. This Hitler has only one objective, justice for his own people, sovereignty for his people, recognition of the independence of his people, and their right to their resources.

"If that is Hitler, then let me be a Hitler tenfold. Ten times, that is what we stand for."

Hours later members of the Zimbabwe National Army, including Mr Mugabe's elite force, the Presidential Guard, began a pre-dawn rampage in revenge for the opposition general strike last week.

The attacks left more than 250 people injured, scores of them seriously, but victims remained defiant yesterday. Patricia Mukonda, 27, a secretary at the head office of the opposition Movement for Democratic Change, needed hospital treatment.

Up to 60 members of the Guard and other soldiers . . . attacked under cover of darkness. . . .

"They beat me all over," she said, adding that she was sexually assaulted with a baton while her six-year-old son was forced to watch. . . .

Yup, sounds like Mugabe is a man with a role model. Also check out Doris Lessing's article about Mugabe. (Thanks to Jesse Walker at Reason's Hit & Run for the pointer to the Hitler piece, and InstaPundit for the pointer to the Lessing piece.)

 
[Eugene Volokh, 4:37 PM]
MIGHT HELP EXPLAIN WHY FEWER PEOPLE ARE CHEERING US THAN WE EXPECTED: It's hard to tell for sure whether this is true -- but it's certainly quite plausible, and it should be a reminder that we can't right now accurately gauge many things, from the true Iraqi attitudes today to the likely Iraqi attitudes when we win to the likely European or American attitudes when we win:

Civilians who greet US and British troops are being executed on President Saddam Hussein's orders, according to a former chief scientist of the Iraqi Atomic Energy Commission, Dr Hussein Shahristani.

The most recent outrage was carried out in the small town of Khidr, between Nasiriyah and Samawa, where some families were accused of cheering the US soldiers who drove through their locality, Dr Shahristani who is now chairman of the Iraq Refugee Aid Council, told rediff.com

Their executions started as soon as the US soldiers left, the scientist, who is now based in Kuwait, said.

"These [coalition] troops pass through local towns and villages and do not stop for long enough to clean up Saddam's terror apparatus.

"When they depart, the civilian families are left to the mercy of Ba'ath party officials and the thugs in charge of Saddam's fidayeen militia.

"Those Iraqis who refuse to serve on the frontline are also being shot," he said.

Dr Shahristani said he had been informed of the killing of a tribal leader, Rahim Karim, who was late by five minutes for a meeting with Saddam's cousin and local governor, Aly Hasan Al Majeed.

Karim had come to discuss how members of his tribe could be mobilised for frontline duty, but Majeed lost his temper and had him shot.

Perhaps, the execution of Karim and others goes some way in explaining British army reports of a civilian uprising against Saddam in the city of Basra.

The reports are yet to be confirmed.

Earlier this week, civilians were reported to be coming out of Basra to inform coalition forces about the whereabouts of Saddam's supporters and assist in directing air and artillery strikes against their own city.

British military officers said the locals are telling them about the movements of the paramilitaries local to the regime.

This is proving crucial in identifying targets for British and American warplanes carrying out sorties.

One British official said, "Most of it [information] is coming from Iraqi people who are fed up with the regime and who are sneaking out across the bridges to tell us what is going on in the city.

"It is very risky, but the fact that so many people are prepared to do this indicates the level of opposition that there is to Saddam within Basra."

Thanks to The Command Post for the pointer.

 
[Eugene Volokh, 2:49 PM]
TIMING: From Victor David Hanson in National Review Online:

We should recall that in the first Gulf War we bombed for over 44 days. Critics in 1991 by day 10 were complaining because after the first few nights’ pyrotechnics, Saddam’s army had not crumbled. In turn, earlier swaggering air-advocates had promised victory in three weeks -- only to be unjustly slandered that they had failed to end the war in six. Gulf War I is considered a great victory; it required 48 days of air and ground attacks by an enormous coalition to expel the Iraqi army from Kuwait. Our present attempt, with half the force, seeks to end Saddam Hussein altogether -- and on day 7 already had him cut off, trapped, and besieged.

 
[Eugene Volokh, 2:33 PM]
A POEM ABOUT THE WAR From Cathy Seipp, an echo of Westron Wind:

Westron wind, when wilt thou blow?
The smart bombs down do rain
Inshallah, that my love were in my arms
And Michael Moore in Saddam Hussein's

 
[Eugene Volokh, 2:18 PM]
FROM THE ONION:

Sheryl Crow Unsuccessful; War On Iraq Begins

WASHINGTON, DC -- In spite of recording artist Sheryl Crow's strong protestations, including the wearing of a "No War" guitar strap, the U.S. went to war with Iraq last week. "Making the decision to go to war is never easy, but it's that much harder when you know Sheryl Crow disapproves," White House press secretary Ari Fleischer said at a press conference Monday. "It is this administration's sincerest hope that it can one day regain the support and trust of the woman behind such hits as 'All I Wanna Do' and 'Soak Up The Sun.'" Fleischer issued similar apologies to Martin Sheen, Janeane Garofalo, and Nelly.

Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 12:22 PM]
A HIT-STORM AT ANOTHER SITE: Phil Carter, whom I'm fortunate enough to have as a student in my free speech law class this semester, has had 11,000 visits this morning alone. I saw that there was a surprising number of users coming to the Conspiracy from his site's blogroll link to us, and decided to check the trackers. Very impressive; if you haven't yet checked Phil's site, you should -- he's a former Army officer who writes calmly and thoughtfully about many issues related to the war.

 
[Eugene Volokh, 12:19 PM]
DENMARK DEPLOYS TROOPS AGAINST IRAQ: "It's Now Official -- We're at War." Thanks to the Command Post for the pointer.

 
[Eugene Volokh, 12:08 PM]
"A" STUDENTS, "C" STUDENTS, AMERICAN PROFESSORS CALLING FOR THE DEATHS OF AMERICAN SOLDIERS, AND MORE: From Newsday (thanks to The Corner for the pointer):

At an anti-war "teach-in" this week, a Columbia University professor called for the defeat of American forces in Iraq and said he would like to see "a million Mogadishus" -- a reference to the Somali city where American soldiers were ambushed, with 18 killed, in 1993.

"The only true heroes are those who find ways that help defeat the U.S. military," Nicholas De Genova, assistant professor of anthropology at Columbia University told the audience at Low Library Wednesday night. "I personally would like to see a million Mogadishus."

The crowd was largely silent at the remark. They loudly applauded De Genova later when he said, "If we really believe that this war is criminal . . . then we have to believe in the victory of the Iraqi people and the defeat of the U.S. war machine."

De Genova also said (I quote here from the Columbia Spectator):

U.S. patriotism is inseparable from imperial warfare and white supremacy.

Tell that to the patriotic black, Hispanic, Asian, and American Indian soldiers who are fighting and dying in the war alongside their white comrades. Oh, no, wait, I understand -- they must all be fools who don't really understand the deeper wisdom that you have arrived at (unless their grades are good enough):

Many of the professors explicitly discussed the responsibilities of academics to act against the war. Kevorkian Professor of Iranian Studies Hamid Dabashi called them "'A' students," in contrast to the "'C' students" who he says are running the government . . . .

"Tonight," [Dabashi said,] "we think for ourselves.

Revenge of the nerdy 'A' students against the stupid 'C' students with their stupid fingers on the trigger."

Fortunately,

At least two of the speakers who followed De Genova distanced themselves from his comments. One of them was teach-in organizer Eric Foner, a history professor, who disagreed with De Genova's assertion that Americans who called themselves "patriots" also were white supremacists.

In a telephone interview Thursday, Foner went further in his criticism, calling De Genova's statements "idiotic."

"I thought that was completely uncalled for," Foner said, referring to De Genova's allusion to the Mogadishu ambush and firefight, portrayed in the film "Black Hawk Down" and known for the graphic image of a slain American soldier being dragged through the streets. "We do not desire the deaths of American soldiers."

Here are some thoughts from the Columbia Spectator editorial about the event:

The goal of the event, presumably, was to spark intellectual, scholarly discussion about the war in Iraq. But last night's event was not a serious debate. It was a forum where professors could express their views unopposed.

Even if the event was designed for the very legitimate purpose of advocating only an anti-war perspective -- and not, as Professor Ira Katznelson suggested at the beginning of the evening, "to teach" -- one of the surprising things about the teach-in was the assumption on the part of several speakers that no one in favor of the war (or even anyone ambivalent) was present. Professor Jack Snyder said he felt comfortable speaking at Low last night because he knew there would be little opposition. The speakers were not out to change anyone's mind about the war; instead, they reveled in an atmosphere of intellectual conformity. . . .

Even when some professors distanced themselves from the more emotionally charged opinions, such as when Professor Eric Foner explicitly stated his disagreement with DeGenova, the overall intellectual atmosphere remained ideologically uniform. There was little explicit acknowledgement that advocates of the war were anything other than "stupid" or "shameless liars and hypocrites."

While Professor Alan Brinkley claimed he respected those who disagreed with him, he still only referred to his opponents as a vague political "Right" in the service of "corporate interests" when talking about the origins of the U.S. government's current stance.

The audience at the forum seemed equally unwilling to entertain the idea of reasonable dissent. When Professor Todd Gitlin told students the energy of protest must eventually be used in more pragmatic ways, like working to ensure that President Bush is not reelected, he was greeted with some hisses. By contrast, even the most stridently radical claims of previous speakers, like DeGenova, were met only with cheers.

Billed as a change of pace from the anti-war rally that occurred just hours earlier near the sundial, the teach-in should have been a tremendous opportunity for Columbia students to learn about the war, and good reasons for opposing it, from experts from widely varied disciplines. While some professors did present articulate and sophisticated reasons for disagreeing with the war, the possibility of disagreement was never taken seriously; no "teaching" took place. Too many students left the teach-in feeling intimidated not by the overwhelming opposition to the war, but to the way an academic forum became a fervid presentation of an exclusive viewpoint. In the future, the University should be wary of advertising a "critical" forum that is so uncritical of its own perspective.

A quick search also revealed similarly interesting statements from some professors at a different event last year:

Professor of Middle Eastern Languages and Cultures Joseph Massad decried Israel as "a Jewish supremacist and racist state," and stated that "every racist state should be threatened."

"The heritage of the victims of the Holocaust belongs to the Palestinian people. The state of Israel has no claim to the heritage of the Holocaust," claimed Professor of Latino Studies Nicholas De Genova.

(A later letter to the editor by him stresses that he also said "The heritage of the oppressed belongs to the oppressed -- not the oppressor.") Apparently, though Iraq, despite its racist slaughter of the Kurds -- or for that matter other Middle Eastern states who had attacked their Jewish (or other) minorities -- "should [not] be threatened"; nor have I seen a discussion of whether the gassed Kurds have any claim to the heritage of the Holocaust. Oh, and Prof. Dabashi makes an appearance in that article there, too:

Others, like Professor of Middle Eastern Languages and Cultures Hamad Dabashi, canceled their late morning and afternoon classes altogether, which caused concern among students planning to attend class as usual.

One of Dabashi's students opposed having class cancelled because, in his opinion, such action encourages overpoliticization of Middle Eastern culture courses.

No, really?

     Finally, for whatever it's worth, here's the paragraph blurb about De Genova from when he was teaching at Stanford:

Nicholas De Genova’s doctoral dissertation, entitled Working the Boundaries, Making the Difference: Race and Space in Mexican Chicago, explores socio-cultural processes implicated in the mutually constitutive productions of racialized difference and urban space in the experiences of Mexican migrant factory workers in Chicago. De Genova’s research posits a Mexican Chicago as a standpoint of critique from which to interrogate the U.S. nation-state, political economy, racialized citizenship, and immigration law. . . .

 
[Eugene Volokh, 11:32 AM]
COST-BENEFIT RANKINGS OF LAW SCHOOLS: Reader Joe Socher pointed me to a ranking of law schools by financial cost and likely return on investment (taking into account the cost of living). I'm not sure this framework is entirely sound, for various reasons; but I thought I'd pass it along.

 
[Eugene Volokh, 11:07 AM]
POEMS: I thought I'd mention again the Shards: Poems from the War project that I started up a while back. We've only published a few poems, but that's the beauty of putting stuff out for free -- you can publish only what you like, and at your own pace. Here are the submission guidelines:

     Please send submissions to volokh at law.ucla.edu. A few tips:

1. Poetry is a tremendously subjective field; the material here is chosen solely based on our subjective and often erroneous judgment.



2. Because of our quirky tastes, please submit only formal verse, which generally means at least metered, and preferably both metered and rhymed. Free verse can be wonderful -- but it's just not our cup of tea.



3. We prefer poems that are 20 lines or shorter. We may make exceptions, but shorter is better (even in the under-20-line zone).



4. We generally like poems that are subtle but not opaque, that are neither over-the-top nor passionless, and that use language that is elegant but simple. How's that for precise guidelines?



5. By submitting the poem, you are agreeing to let us distribute it indefinitely on this Web site, and also on the Volokh Conspiracy site. You are also agreeing to let us include your name and e-mail address, unless you expressly tell us otherwise.



6. We are happy to republish work you've already published elsewhere. Please do not, however, send us work that you love but that was written by others; please ask them, if you know them, to submit it themselves.



7. We will try to respond within one week of your submission, and we will usually succeed.



8. If we find that we lack the taste or the heart to uncover enough gems in what we're sent -- or, for that matter, if we're not sent anything at all -- we reserve the right to quit having published nothing.

Finally, something that is surely not news to most writers and readers: A poem is not (or at least not necessarily) a political slogan. It need not be a forthright declarative or imperative sentence. Its meaning ought not be cloaked in too much indirection, but neither does it require the straightforwardness of reportage or instruction. A phrase may reflect ambivalence as well as certainty. The narrator is not always to be trusted. Words of triumph can cloak despair, and vice versa.

 
[Eugene Volokh, 10:49 AM]
50,000 UNIQUE VISITS PER DAY: The Command Post hit counters show that it's been getting roughly 50,000 unique visits per day over the last several days -- on a money budget of, I suspect, next to nothing. (The time budget, on the other hand, is doubtless huge.) Those airy platitudes about the glories of the market, viral marketing, flexibility and dynamism, and the Internet seem to be absolutely true here.

 
[Eugene Volokh, 10:41 AM]
"TOWN BANS WAR TRIBUTES ON PUBLIC PROPERTY": The AP reports that:

Yellow ribbons and all other war memorials have been banned from public property here . . . .

The Fieldsboro Borough Council approved the ban last week, but Mayor Edward "Buddy" Tyler said it does not prohibit residents from placing memorials on their own property. He said that while town officials "certainly recommend" that residents show their support for the troops, there were other concerns that must be recognized.

"Where would you draw a line if you started allowing the use of public property to exhibit whatever cause anyone wanted?" Tyler told The Trentonian of Trenton for Friday's editions. "Suppose someone wants to tie pink ribbons, or black flags, or a Confederate flag or a Nazi flag on public property?"

This is a very plausible concern, especially given court decisions such as this one from the Ninth Circuit, which hold -- again, quite plausibly -- that once the government opens up public property to patriotic private speech (such as flags, in that case), it must open it up to other viewpoints, including ones that many might find offensive.

     In general, there's a lot to be said for the courts' position on such cases, a position that is probably dictated by the Supreme Court's caselaw. Once the government opens up public property to private speech, there's good reason to require that the government be evenhanded in the sorts of speech that it allows there. It may be appealing to say "it's the government's property, so the government has full control over what's said there"; but when the government controls 35% of the GNP, and therefore controls a vast range of property (tangible and otherwise), letting the government have unlimited say about the sorts of private speech that are allowed on its property would give it tremendous control over public debate.

     At the same time, the government does have nearly unlimited power to express its own views on its own property (setting aside the constraints that the Establishment Clause imposes on religious speech by the government). As the Ninth Circuit flag decision recognized, if the government chooses to speak itself -- whether in favor of patriotism, racial equality, abstinence from drugs, or what have you -- it may do so without providing an equal forum to others.

     So here then is the puzzling consequence: Fieldsboro could put up American flags and yellow ribbons itself on city property, and exclude private speech from it (government agencies routinely do put up American flags on government property, after all, and this doesn't require them to also allow Iraqi flags on the same property); but it probably can't leave it up to citizens to put up their own flags and ribbons on city property. That might be a sensible distinction; or it might be an odd result of a distinction that's sensible more broadly, even if it reaches strange results in particular cases (many legal rules work well in most cases but yield surprising results in some situations); or it might show that the broader distinction is indeed mistaken, and that either the government should be severely constrained in its own speech, or the government should be free to open up property to some privately expressed viewpoints and not others. But in any event, I thought I'd point it out.

     Thanks to the Command Post for the pointer to the AP story.

 
[Eugene Volokh, 10:24 AM]
IRAQIS THREATENING THEIR OWN SOLDIERS: A message from a reader reminds me that it's important to make clear the significance of points such as this one:

[Eugene Volokh, 10:56 AM]
. . . ONE REASON WHY THE IRAQIS ARE FIGHTING: They or their children may get shot by the regime if they don't.

In part, I was saying this to illustrate the brutality of the regime, which is willing to threaten to kill children in order to coerce their parents. But I don't want to claim that the same argument entirely holds for threatening to kill the soldiers themselves -- threatening to kill soldiers (volunteers or draftees) for failing to fight the enemy (the general military justice term, I think, is "cowardice," though sometimes it might just be good sense) is, unfortunately, more defensible. It may still be cruel, especially if the fighting seems pointless; and the moral questions involved here are nontrivial. But I'm not willing to rest much of an argument on the assertion "Look how evil the Iraqis are -- they're threatening their soldiers with death if they fail to obey orders."

     Rather, the point there is quite different: Many people are saying "Look, the Iraqi soldiers are fighting us, rather than surrendering to us -- this means that average Iraqis really do hate us for invading." Reports such as the one I cite provide an alternate explanation: Maybe the soldiers, or at least many of them, really would like to surrender, but they fear instant death from their own discipline enforcers if they try. So we shouldn't draw much of an inference about average Iraqi attitudes from the actions of likely coerced soldiers.

     This, I think, is an important point, because the views of average Iraqis towards the invasion are indeed significant, since they will influence what happens after Saddam is removed. But I agree that we shouldn't draw too much from the evidence of coercion -- and in particular that we shouldn't suggest that coercion of the soldiers themselves (even with threat of death) is uncommonly or shockingly brutal.

 
[Eugene Volokh, 9:04 AM]
UPDATE: Yesterday, I asked, quoting an unknown author:

If Saddam loses a leg, but survives the U.S. bombing, how upset will his body doubles be?

Reader Jerry Huling replies:

Why, they'd be hopping mad!

 
[Eugene Volokh, 8:11 AM]
THE LOGIC OF THE EXTREME SELF-DEFENSE-ONLY ARGUMENT: Many people, such as my correspondent a couple of posts done below, argue that of course war is sometimes justified -- when it's fought in self-defense against a foe that "directly attack[s]/inavde[s] us," and that this shows that they would have indeed been in favor of America fighting the Nazis in World War II, though not most other wars. War in self-defense, they reason, is justified, though unfortunate; but if there's no self-defense justification, then it's wrong to kill innocent civilians and trespass on other nations' sovereignty. What's more, they generally reason, the government must explore all possible alternatives to war, and use war just as a last resort.

     The trouble, though, is that the Nazis didn't actually attack or invade us in World War II. They did declare war on us, pursuant to their treaty with Japan; but unless I'm mistaken, there were comparatively few military confrontations between the Germans and the Americans (mostly fairly small scale submarine warfare, largely aimed at our supplying the British and the Russians) until the U.S. actually attacked in the European theater in late 1942.

     Roosevelt did announce in 1943 that the U.S. intended to fight until an unconditional German surrender; but he didn't have to. If he really thought war was only permissible in self-defense, and as a last resort, he could have told the Nazis in Dec. 1941, shortly after they declared war, that America had no quarrel with Nazi Germany, and the Germans should have no quarrel with us. We wouldn't help the British or the Russians, the Germans wouldn't really help the Japanese -- think of it as an immediate ceasefire. And by the time the tide turned in mid-1942 in favor of the U.S. in the Pacific, the Germans would probably have been quite happy to make peace with the likely winner, especially if they would still have been having real trouble on the Eastern Front. After all, the Germans hadn't really attacked Americans. There really was no need for self-defense. There was surely no need for Americans to kill innocent German civilians, which any American war against the Germans would have necessarily led to. And of course the Roosevelt Administration had an obligation to exhaust all possible alternatives before going to war. Surely the ceasefire with the Nazis would have been a perfectly sound alternative from the pure self-defense perspective.

     Of course, this only rebuts the pure self-defense-only argument; perhaps some other versions of the argument might be more defensible. Perhaps Roosevelt's decision to fight the Nazis was justified on the grounds that had the Nazis won in Europe, they would be a serious threat to us, which might explain why Roosevelt did feel that fighting the Nazis was indeed our business -- but that's the very anticipatory self-defense theory that the anti-war forces generally condemn. Perhaps Roosevelt's decision is justified because we're also entitled to go to war to defend others, though that would justify a great many wars (my correspondent wrote that only three wars that the U.S. fought had fit the self-defense criterion, which means the correspondent was not accepting the defense-of-others rationale). Or perhaps there's some mixed theory: one may not enter a war first until the other side attacks or declares war, but once they declare war, then one can continue the war even when the need for immediate self-defense vanishes, or when other alternatives (such as a separate peace) arise. The rationale here would be that the other side has irrevocably waived its right not to be attacked by declaring war, though it's hard to see why (under the broad antiwar logic) this waiver should apply to the rights of innocent German citizens, who were no threat to the U.S. in late 1942, and who never voted to declare war.

     But while some such arguments might work -- as I've stressed repeatedly, there certainly are plausible arguments against this war -- they can't try to trade on the moral purity of the "[only] if the U.S. was directly attacked/invaded" / self-defense-only / no-war-unless-all-diplomatic-alternatives-are-exhausted argument. And if one does accept this argument, then I think the conclusion is that the U.S. should have fought it out with Japan (though only until Japan promised not to touch Hawaii or the Philippines again) but have promptly concluded a separate peace with Germany. If one accepts that conclusion, then that's fine; but those who don't accept it must therefore reject the pure self-defense-only view.

 
[Eugene Volokh, 10:41 PM]
GOERING QUOTE: A reader writes:

I think you have missed the boat here with your comments on the anti-war activists use of the Goering quote. There is a critical distinction between Germany and the Allies in WWII -- the Allies acted in self defense.

The moral equivalance alluded to by the anti-war crowd is one of offensive military action that is not taken in self-defense. The great majority of them would support a war if the US was directly attacked/invaded as was the case in WWII. But [this is not so here] . . . . Therein lies the rub, and this is why I believe your logic fails.

All of this is a plausible argument, though one I disagree with. (Among other things, imagine Hitler had not declared war on the U.S. following Pearl Harbor; if the "anti-war crowd" really take the view that attacking Hitler would have been wrong then, that illustrates their error.)

     All plausible except for the use of the Goering quote, because the "critical distinction" that my correspondent points to is precisely the distinction that Goering was denying. Goering is saying that all decisions to go to war are frauds perpetrated by conniving politicians on a gullible public -- the German decision to start the war and the Russian, British, and American decisions to fight it. Goering is equating the Allies acting in self-defense to the Nazis' actions, not distinguishing the two.

     So if the antiwar activists want to make the argument that the war against Iraq is improper because it's not in self-defense -- or even that the government is deluding the complacent public into believing that it's proper, something that wouldn't be so in a defensive war but is so here -- that's fine. But the Goering quote offers no support for this supposedly "critical distinction." As might be expected, Herman Goering proves not to be a font of moral or political wisdom.

 
[Eugene Volokh, 9:57 PM]
MARK STEYN'S LATEST ON THE WAR is excellent -- definitely worth reading. Thanks to Tim Blair for the pointer.

 
[Eugene Volokh, 5:38 PM]
BENIGNI ALERT: From Bob from Accounting, by way of Planet Proctor:

Terror Alert: New Wave of Roberto Benigni Movies on U.S. Soil "Inevitable"

by Tyler Reisinger


Washington, DC - Newly appointed Homeland Security Director Tom Ridge told a Senate Subcommittee today that a new wave of Roberto Benigni movies in the United States was "inevitable."

"For a long time Roberto Benigni movies were a far away problem," Ridge testified."They occurred in distant European theatres, only affecting the Italians. But now the threat of future Benigni films on the homefront is very real."

Already a huge star in Europe, Benigni was recently allowed to release a live-action version of the classic story "Pinocchio in the U.S, causing fear and anxiety among a nation of already jittery American children. . . .

Ridge answered questions posed by members the Subcommittee on the possible European backlash over the new alert. Ridge dismissed the entire continent and their filmmaking skills as "irrelevant," saying we must focus on finding the sources of these films and freeze their funds immediately.

"Sometimes we have to protect America at great cost, but as long as there are pushy foreign distributors who don't even speak English, we will be vulnerable."

Ridge has offered to create a new coded system to gauge the threat of future U.S. released Benigni movies -- low level threat occurs when Benigni is safely making non-subtitled movies in Italy, a mid-level threat occurs when American studio executives meet or discuss future projects with Benigni's agent over lunch. In the rare case that an English-language Benigni movie be complete with a domestic movie release date set, "we immediately go to DEFCON 1. But let's pray it never comes to that." . . .

 
[Eugene Volokh, 4:57 PM]
DEEP THOUGHT OF THE DAY:

If Saddam loses a leg, but survives the U.S. bombing, how upset will his body doubles be?

(Author unknown.) Unfortunately, we can't be sure that it's just a joke.

 
[Eugene Volokh, 4:51 PM]
BE CAREFUL WHEN RELYING ON HERMAN GOERING: I recently saw on an antiwar colleague's door this quote -- purportedly from Herman Goering at the Nuremberg Trials -- and then a couple of days later a reader passed it along as well; a google search found dozens of references. According to snopes.com it's essentially genuine, though Goering said it to an interviewer during the trial, and not at the trial itself:

Of course the people don't want war. But after all, it's the leaders of the country who determine the policy, and it's always a simple matter to drag the people along whether it's a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.

Here, though, is the snopes.com of a broader excerpt from the interviewer's book:

We got around to the subject of war again and I said that, contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.

"Why, of course, the people don't want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don't want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

"There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars."

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

This broader passage, I think, provides some important context, though one can see it in the original version, too: Goering is trying to justify what happened -- what the regime he ran did -- by suggesting that all the regimes are the same. England, America, Russia, Germany; democracy, Parliament, fascism, communism; it's all the same; all war is just regimes manipulating their foolish citizens. The German decision to start World War II, by this logic, is the same as the British and American decisions to resist the Germans.

     So that, I think, is the problem facing those who use the quote: Their proposed moral equivalence between Goering's Nazi Germany and America only works if they are also willing to accept Goering's moral equivalence of Nazi Germany and Roosevelt's America and Churchill's England. And if they are, like I am, repelled by the latter moral equivalence -- if they think that Americans really did deliberately endorse a war against Germany, or that, even if they were influenced by their elected representatives, their elected representatives were properly doing their job by exercising such leadership -- then what's the point of citing as authority a man (a monster) who was asserting it?

 
[Eugene Volokh, 3:16 PM]
LAW SCHOOL FACULTY RANKINGS: Here's another list of law rankings, this one of law school faculties -- I just got an e-mail about it a few minutes ago. Take it with the usual grains of salt, as you would other subjective ranking schemes.

 
[Eugene Volokh, 2:21 PM]
CITATION COUNTS FOR LAW JOURNALS: There's a list here -- potentially useful if you're trying to infer how influential a journal is, and what sort of reputation it has.

     For law schools' general interest journals (e.g., the UCLA Law Review), the citation counts seem to end up being not that different from U.S. News & World Report rankings, though there are some differences; but in any event, with the general-interest journals the reputation of the school may actually be more relevant (for instance, if you're choosing which journal to publish in) than the actual citation count of the journal. But it's long been quite hard to estimate the reputations of specialty journals -- this list might help. Thanks to fellow lawprof David Bernstein for alerting me to it, though I suppose I should have known about it long ago!

 
[Eugene Volokh, 12:29 PM]
"WHEN JOHNNY APPLE SAYS WE'RE THWARTED, WE MUST BE ON THE VERGE OF WINNING": Jack Shafer, in Slate's Pressbox points out some recurring errors of war coverage. Johnny Apple, incidentally, is the author of "Military Quagmire Remembered: Afghanistan as Vietnam," N.Y. Times, Oct. 31, 2001 (the headline, of course, isn't his, but it summarizes his piece nicely), and now of "Iraqis Learn the Lessons of How U.S. Fights Wars," N.Y. Times, today.

 
[Eugene Volokh, 12:18 PM]
"UNCLE SAM'S JIHADISTS": Deanne Stillman, writing in Slate, has what seems to me to be a sober and balanced view of this troubling problem. The overwhelming majority of Muslims in the military are doubtless extremely loyal, and they ought not be punished because of their religion. But some are disloyal -- and while there are some bad folks of all religions in the military, those whose evil flows from a religious and political belief system (Islamofascism) that sides with our enemies are particularly threatening. The tough part, of course, is figuring out what to do about this without being unfair to the many loyal Muslim soldiers, and without causing all sorts of practical problems for America inside the military, in American society, and in the world at large. But it seems to me that we can't ignore that this is indeed a potential problem, though its precise magnitude is not yet known, and might end up being relatively small.

     And just to preempt people trying to raise this objection, of course I'd say the same if, heaven forbid, the U.S. ever got into a war against Israel and there was evidence that some Jewish soldiers were on the Israeli side. Religious, political, and even ethnic loyalties are a reality; we shouldn't overreact to them, and we should be conscious of the danger of overreacting to them -- but we shouldn't pretend they don't exist, either.

 
[Eugene Volokh, 12:10 PM]
MICKEY KAUS ON SENATOR MOYNIHAN: A fine tribute, unusually substantive for obituaries, but particularly effective as a result.

 
[Eugene Volokh, 12:05 PM]
BLIX ON LIMITS OF WEAPONS INSPECTORS: From Radio Australia:

The United Nation's chief weapons inspector has defended his team over suggestions they failed to do their job in Iraq.

US officials have found thousands of chemical protection suits at an Iraqi military base in Nasiriya, along with a chest full of the nerve gas antidote atropine.

Chief weapons inspector Dr Hans Blix says the coalition forces are at an advantage compared to weapons inspectors in Iraq:

"The Americans have one advantage over UNMOVIC, in discovering things and that is as they go around the country and more areas are under their control it seems likely that people scientists engineers military will be more ready to speak to the Americans, than they were to us because when we were there they still had the formidable police apparatus that would scare them from saying the truth, if the truth was any different from what the government said."

Uh, yeah. Thanks to The Command Post for the pointer.

 
[Eugene Volokh, 11:45 AM]
be looked at on the face value of what it is, and it really does very little.”).

[1.] The State asserts that [the goal of promoting child rearing in a setting that provides both male and female role models] . . . could support a legislative decision to exclude same-sex partners from the statutory benefits and protections of marriage. . . It is conceivable that the Legislature could conclude that opposite-sex partners offer advantages in this area, although we note that . . . the answer is decidedly uncertain.

The argument, however, contains a more fundamental flaw, and that is the Legislature’s endorsement of a policy diametrically at odds with the State’s claim. In 1996, the [Legislature removed] all prior legal barriers to the adoption of children by same-sex couples. At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their “domestic relationship.”

In light of these express policy choices, the State’s arguments that Vermont public policy favors opposite-sex over same-sex parents or disfavors the use of artificial reproductive technologies, are patently without substance.[169] . . .

[2. W]hatever claim [based on history and tradition] may be made in light of the undeniable fact that federal and state statutes --including those in Vermont -- have historically disfavored same-sex relationships, more recent legislation plainly undermines the contention. [In 1977, Vermont repealed a former statute that criminalized fellatio.] In 1991, Vermont was one of the first states to enact statewide legislation prohibiting discrimination in employment, housing, and other services based on sexual orientation. Sexual orientation is among the categories specifically protected against hate-motivated crimes in Vermont. Furthermore, as noted earlier, recent enactments of the General Assembly have removed barriers to adoption by same-sex couples, and have extended legal rights and protections to such couples who dissolve their “domestic relationship.

Thus, viewed in the light of history, logic, and experience, we conclude that none of the interests asserted by the State provides a reasonable and just basis for the continued exclusion of same-sex couples from the benefits incident to a civil marriage license . . . .

1. I think criminalization of gay sex is very bad,
2. I think gay marriage would probably be good, though my views on this are more tentative, and
3. I think that the slippery slope effect here, while possible, isn't very likely -- decriminalizing gay sex may increase the likelihood that gay marriage will be recognized, but not by much.

 
[Eugene Volokh, 10:56 AM]
DAN DREZNER ON ONE REASON WHY THE IRAQIS ARE FIGHTING: They or their children may get shot by the regime if they don't.

 
[Eugene Volokh, 10:38 AM]
MAGIC: Three related items:

1. Check out The Flash Mind Reader.



2. Contemplate Arthur C. Clarke's Third Law: "Any sufficiently advanced technology is indistinguishable from magic."



3. Observe: To some people (and, in my experience, to many lawyers), algebra constitutes such a "sufficiently advanced technology."

UPDATE: Just to make it clear, yes, I know the trick . . . . Oh, no, wait, it's not a trick -- it's magic!

 
[Eugene Volokh, 10:06 AM]
NATURALNESS Reader Michael Williams writes:

Good post on unnaturalness. It's a purposely vague argument generally used to appeal to pseudo-religious or -emotional feelings that the speaker believes he shares with the listener. It allows them to agree on these feelings without having to actually deal with the details behind the feelings, on which they may disagree (different religious backgrounds, or whatever).

I think that similar arguments can be made in another realm: environmentalism. It's not "unnatural" to eat animals, or cut down trees, or dig oil and metal out of the ground.

Quite right. In both fields, other arguments other than unnaturalness can of course be made -- I don't really buy them as to homosexuality, and I buy some but not others as to environmental questions (though I leave the details to Sasha and Juan), but at least they're plausible. But arguments about whether something is "natural" or not just hide the true questions.

 
[Eugene Volokh, 9:27 AM]
CRIMES AGAINST NATURE: I realize this is a pretty banal point by now, but one argument that I've never understood against homosexuality is that it's "unnatural," and therefore "wrong." What exactly does "unnatural" mean, and why does it tell us anything about what is proper?

     1. "Unnatural" might mean "not found in nature." Well, that's a bit odd, because humans are a part of nature. I suppose "unnatural" might mean "found only in humans," but even if that's true, then homosexuality isn't unnatural: bonobo chimpanzees, who I doubt have been influenced by any alleged homosexual propaganda, do it, too (I almost wrote "do it as well" but that would have been ambiguous).

     2. "Unnatural" might mean "flowing from conscious design rather than human's physiological nature." That, though, would be pretty odd, too. First, the Bonobos are relevant even to this; but, second, millions of people do it, and they seem to have the same sort of emotional and physical drive towards it as heterosexuals do towards heterosexual sex. I haven't seen the studies, but I'm quite sure that homosexual stimuli yield physical reactions -- arousal, hormonal flow, and so on -- in homosexuals just as heterosexual stimuli yield them in heterosexuals. If heterosexual lust is "natural" in the sense that it's part of the nature of heterosexuals, I've seen no reason to doubt that homosexual lust is natural, too.

     3. "Unnatural" might mean "not done by most humans in the state of nature," which is to say before civilization and the imposition of large-scale social structures which may have led people to deviate from the practices in which they engaged for tens of thousands of years. This is the way "unnatural" seems to be often used in some discussions of natural lifestyles, though rarely focused on sex. But even if the "most humans" proviso makes homosexuality unnatural, then it's unnatural in the same sense that bathing, toothbrushing, and representative government are unnatural. Under this definition, "unnatural" has little to do with "morally proper." We don't measure the morality of most of our other practices by what most humans did in the state of nature -- why should we measure sexual practices that way?

     4. "Unnatural" might mean "not done by most humans today, which suggests that it isn't consistent with human nature." This, though, assumes that human nature is monolithic: If most people don't have some trait, then it's not part of human nature. Are redheads, then, unnatural? Or people with blue eyes? Or, shifting away from the clearly genetically linked (for purposes of this discussion, I don't need to enter the debate over whether homosexuality is genetically linked, though my understanding is that separated-at-birth twin studies do support such a link), is being a religious Jew unnatural? How about liking to run 26 miles at a stretch? Either these aren't unnatural -- because human nature might consist of different groups of people with different traits -- which disposes of another reason why homosexuality might be "unnatural"; or they are unnatural, in which case there's nothing wrong with being unnatural.

     5. "Unnatural" might mean "not contributing to the propagation of the natural phenomenon of a reproducing species." Heterosexual genital intercourse contributes to the propagation of the species, but homosexual genital intercourse doesn't. (Heterosexual oral intercourse, which I believe most Americans engage in at one time or another, isn't reproductive, but, the theory goes, "one thing leads to another.") But that's a strange definition of unnatural, and a stranger still definition of "unnatural and therefore wrong." First, human beings in society seem to appreciate art and music (of at least some sorts); that seems to be part of human nature, and though it doesn't directly lead to the propagation of the species (except insofar as artists and musicians tend to get a lot of, er, attention), we don't find it unnatural. And, second, if we do conclude that art, music, abstract mathematics, and so on are all unnatural in this sense, no-one would say that they're therefore bad.

     6. "Unnatural" means "contrary to the nature of the sexual act." Wait, someone might say, the argument in the previous paragraph is irrelevant, because art and music aren't supposed to reproduce the species. Sex is supposed to reproduce the species -- in the sense that this is its chief biological function -- so while nonprocreative art is fine, nonprocreative sex is unnatural and therefore wrong. This theory really would mostly condemn heterosexual nongenital intercourse, and heterosexual intercourse among the infertile and those who use birth control; but, the theory would go, those things are more likely to indirectly lead to reproduction, either by the couple or by others who follow their social example.

     But do we really think that our conduct should follow the chief biological function of the items, traits, or organs involved? The chief biological function of food is nutrition. Does it follow that it's not only unnatural but wrong to eat food for the sake of enjoyment, when you're not hungry? (I'm not talking about eating to excess, but about any eating that goes beyond the biological function of food.)

     The chief biological function of wood is to maintain a tree. Does it follow that it's unnatural and therefore wrong to build houses or furniture out of trees, or to burn them for warmth? The chief biological function of hair is -- well, I'm told that it's complicated, but surely the function is not served by braiding hair or dying hair. Perhaps braiding and dying serves a secondary biological function of hair, which is to make the person sexually attractive. But once we accept secondary biological functions, surely one can accept that sex is chock full of them as well, such as giving pleasure and fostering social relationships (and social relationships are very much a part of human nature, and for that matter of bonobo nature). Homosexual sex fits those secondary functions.

     7. "Unnatural" means "contrary to the will of God as expressed in nature." That, it seems to me, doesn't work well for most of the reasons given above. Nature contains homosexual desire just like it contains red hair and blue eyes.

     8. "Unnatural" means "contrary to the will of God, who created nature, as expressed in certain authoritative religious works." Now with that I can't argue -- theologians debate about how various religious works should be interpreted on this score, and people also debate, of course, about which works are the correct ones. I have no expertise in those debates, and not much interest.

     But it seems to me that this argument really has next to nothing to do with nature as such. Killing, stealing, and adultery seem natural under virtually any definition of nature; the religious objection to them may turn on them being contrary to the will of God, but I don't think it really has anything to do with naturalness. Likewise for homosexuality.

     And this is an important point, because when people say "homosexuality is wrong because it's unnatural," it seems to me that they are trying to assert more than just "homosexuality is wrong because it's contrary to my contested interpretation of contested religious texts" -- they are trying to call on a more objectively defined, uncontroversial authority called "nature," which is why they say "unnatural" rather than "ungodly." (Some do say "ungodly," but that's not the argument I'm confronting here.) The trouble is that this call fails: Whatever one's definition of natural, either homosexuality is natural, or it's unnaturalness says nothing at all about its propriety.

 
[Eugene Volokh, 8:28 AM]
ANOTHER NEW YORK TIMES CORRECTION: From March 11, 1975: "In yesterday's issue, The New York Times did not report on riots in Milan and the subsequent murder of the lay religious reformer Erlembald. These events took place in 1075, the year given in the dateline under the nameplate on Page 1. The Times regrets both incidents."

 
[Eugene Volokh, 8:24 AM]
LAW BLOGS AGGREGATOR: Check out the Daily Whirl, an aggregator for RSS feeds coming out of various law blogs.

     When you read that, did you read it as "a framastatologist for bletchitysmacks coming out of various law blogs"? It's too hard to explain -- though it basically lets you see the subject lines from a whole bunch of blogs at once -- but just visit the site and you'll see.

 
[Eugene Volokh, 6:48 PM]
NICE DIG: From the ever-sharp Cathy Seipp, writing about the Oscars and the lack of real expressions of support for the troops:

The New York Daily News's Rush & Molloy did report that Brittany Murphy, who co-starred with Eminem in "8 Mile" and is the wonderfully dopey voice of sexy Luanne on Fox's "King of the Hill," said "Thank you to the troops and their families. . . . Semper Fi!" at one of the post-Oscars parties. But that was a long way from the podium.

A more typical festive celebrity moment came when Tim Robbins, who along with mate Susan Sarandon is prominently against the war in Iraq, gave The Washington Post's Lloyd Grove what for after the Academy Awards ceremony.

The actor was angry that Grove had dared to interview Sarandon's mother, who in contrast to her daughter is a conservative Republican. "If you ever write about my family again . . . I will (bleeping) hurt you!" Grove reported Robbins yelling. Hey, Tim, give peace a chance!

Sweet. The rest of the piece is also much worth reading.

 
[Eugene Volokh, 6:27 PM]
D.C. METRO BLOGGER MAP: Pretty cool idea, and well-implemented. Realspace meets cyberspace.

 
[Eugene Volokh, 5:20 PM]
WHY THE FRENCH, GERMANS, AND RUSSIANS OPPOSE THE WAR, according to Egyptian economist Khalil Al-'Anani, on Al-Jazeera (source is MEMRI, thanks to The Command Post for the pointer):

France's opposition to the war in Iraq, rather than being based on political considerations, its historical ties with the Arab world, or an attempt to challenge America's role as superpower, is motivated by pure economic interests. Despite France's attempts to portray its stance against the war as a political one, it is difficult not to imagine the economic benefits to France if the war had not occurred. The consequences of war on the weak French economy will be palpable primarily in the oil and commercial sectors. . . .

The German economy is going through difficult times with a GDP growth in 2002 of 0.2% and unemployment of 11.3% which translates into 4.06 million unemployed workers. The reduction in taxes collected, coupled with rising unemployment benefits, could drive German deficits above the 3% ceiling established by the European Union, which would invite punitive measures. The war in Iraq could result in two immediate negative consequences for the German economy: first, a decline in German exports which is the main engine for German economic growth; and second, higher oil prices could intensify the German economic slow-down. . . .

Not unlike the case of France, it is difficult to overlook the extent and depth of the economic relations between Russia and Iraq which extend over 40 years. Here, again, economic considerations drive the Russian position vis-à-vis the war on Iraq. . . .

I obviously can't personally speak to whether this is accurate, but given al-Jazeera's normal slant against the war, it seems noteworthy. Of course, it's also possible that this is just a manifestation of a broader cynicism that takes the view that everyone, whether American, English, French, German, Russian, or Arab, only cares about more or less direct financial benefit.

 
[Eugene Volokh, 3:36 PM]
FOREIGNERS SEEM TO LIKE BAD PUNS AS MUCH AS WE DO: Check out Swe-Dish Satellite Systems.

 
[Eugene Volokh, 3:32 PM]
SPEAKING OF SHORT JOKES: My two favorite limericks:

1. There once was a man from Peru
   Whose limerick stopped at line two.



2. There once was a man from Verdun.

 
[Eugene Volokh, 3:31 PM]
MY NEW LAW JOURNAL ARTICLE: The Journal of Legal Education agreed to take it; I'm particularly proud of it because, setting aside the title and the author, it's nine lines long. (It's a joke piece, as you might imagine -- the JLE often runs such in its "etc." section -- and shorter is usually funnier.)

 
[Eugene Volokh, 1:09 PM]
MATTHEW YGLESIAS ASKS, I ANSWER: Responding to my post about the Oregon "life for trespassing" bill, Matthew Yglesias writes:

[T]he bill as written will almost certainly fail. But that seems to be dodging the bigger question: What if the bill is amended so as to be more narrowly-tailored to the purpose of targeting anti-war demonstrators? Isn’t it pretty likely that, given the current climate of anti-anti-war sentiment being whipped-up, a law like that could pass? Would he support a law like that? . . .

First, I think a law of the sort I’m envisioning could pass constitutional muster. There’s no constitutional right to block traffic (indeed, it’s already illegal) and I don’t see why the constitution would prohibit handing out punishments differentially on the basis of what motivated the traffic-blocking. Indeed, punishments are handed out differentially on this basis all the time.

Second, I’m pretty sure that Prof. Volokh would oppose the sort of law I’m talking about, but I’d like to [hear] him say it. It’s all well and good for folks like Atrios to criticize this, but what actually makes a difference is when principled, pro-war, conservative folk speak up.

A few quick responses:

1. I'm of course very flattered by the last sentence.



2. I don't see any real basis for assuming that a law imposing life imprisonment for blocking traffic in order to protest the war, or interfere with the war effort, or what have you, would indeed be enacted. Sure, if one assumes that the majority of Americans utterly loathe antiwar demonstrators and want to punish them more than, say, rapists or armed robbers -- which means that the majority of Americans are both radically intolerant of dissenters and utterly lack moral proportion -- then one could infer that such a law would be passed. But I just don't make that assumption, and I wonder what foundation there is for making it.



3. I would of course oppose any law that imposed life imprisonment for people who blocked traffic in order to interfere with government, education, commerce, or assembly in an anti-war cause. I'm pretty sure that nearly all other "pro-war, conservative folk" would take the same view, just as I'm pretty sure that (for instance) nearly all "pro-choice, liberal folk" would oppose life imprisonment for people who block abortion clinics in order to interfere with abortions.



4. However, if such a proposal is made -- or for that matter if someone proposes even mild increases in penalty for illegal traffic blocking aimed at interfering with the war effort -- a big part of the defense of the proposal would be by analogy to hate crimes laws, which often turn misdemeanors (including, for instance, "disorderly conduct," defined among other things as the doing of "any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace," see Illinois stats. ch. 720 sec. 5/12-7.1) into felonies when they're done for reasons that the legislature finds particularly heinous. I think these laws are constitutional, but I think they're bad ideas for many reasons. One of the reasons is that they do in part run the risk of interfering with constitutionally protected (albeit morally contemptible) political speech by threatening very serious penalties if the speaker steps even slightly out of line.

 
[Eugene Volokh, 12:39 PM]
"DAY OF PRAYER AND FASTING": The House of Representatives is considering this resolution asking the President to declare a day of "prayer and fasting." (I've heard it said that they're planning to vote on it today, but I've seen no confirmation.) I think such a resolution would be constitutional, even under the Court's current caselaw, precisely because of the tradition that the resolution cites; it does endorse religion, but such endorsement was seen as permissible by the Framers and the generations that followed, and I'm willing to say (given Marsh v. Chambers (1983), which upheld legislative prayer on these grounds) that it therefore doesn't violate the Establishment Clause.

     But I don't like it; it seems to me that these resolutions are neither good government nor good religion. First, I think the American people are themselves perfectly good judges of what they should pray about and when, and they don't need the President to instruct them in this. Moreover, while in a former time these resolutions might have helped bring the nation together, I don't think this is actually likely today (though I do think that more personalized religious symbolism in a President's own speeches given in time of crisis may still have that effect, for complex reasons).

     Second, the very details of this resolution demonstrate how government involvement in these matters ends up verging on the ridiculous. The Congress urging the President to urge the people "to seek guidance from God to achieve a greater understanding of our own failings and to learn how we can do better in our everyday activities"? "Do better in our everyday activities"? This is what we need a Presidential proclamation for? That this is the prayer that politicians are trying to write for us just shows how bad politicians are at writing prayers, especially by committee.

     Moreover, a day of prayer and fasting? Yes, I know that this is part of the historical tradition to which the House is appealing, but unless I'm mistaken very few Americans today, even the most devout, actually see fasting as the proper response to national crisis. Many people do fast on certain days (such as Yom Kippur, Lent, or Ramadan) dictated by religious tradition; but I think very few fast outside these traditions, even in times that call for prayer and reflection. I doubt that President Bush, or the majority of the House of Representatives, would actually fast (though they may well pray) in response to this resolution, even if they vote for it.

     The suggested "recogni[tion of] the public need for fasting and prayer" is therefore not, I think, an actual recognition of public need for fasting and prayer -- rather, it's a sort of dramatic gesture aimed at symbolically tying us to a centuries-old American tradition (which I take it originated in a time when people did take fasting seriously in this situation). These dramatic gestures may be fine in politics, but I don't think they're right in religion: If you call for a sacred observance, it seems to me that you should really seriously want the sacred observance to take place.

     The standards of sincerity ought to be higher in religion than in political gestures. But such high standards are hard to maintain when Congress gets involved in religion, even symbolically.

     Again, I don't think this is unconstitutional, or some sort of travesty. But I also think that the text of this very resolution demonstrates the flaws in resolutions of this sort.

     Here's the resolution itself:

H. RES. 153

Recognizing the public need for fasting and prayer in order to secure the blessings and protection of Providence for the people of the United States and our Armed Forces during the conflict in Iraq and under the threat of terrorism at home. . . .

March 20, 2003
Mr. AKIN (for himself, Mr. GOODE, Mr. BARTLETT of Maryland, Mr. JONES of North Carolina, Mr. KING of Iowa, Mr. HAYES, Mrs. JO ANN DAVIS of Virginia, Mr. BEAUPREZ, Ms. CORRINE BROWN of Florida, Mr. MANZULLO, Mr. ADERHOLT, Mr. TIAHRT, Mr. PITTS, Mr. RYUN of Kansas, Mrs. MYRICK, Mr. WELDON of Florida, Mr. BISHOP of Utah, Mr. BARRETT of South Carolina, Mr. MILLER of Florida, Ms. ROS-LEHTINEN, Mr. GINGREY, Mr. TERRY, and Mr. SOUDER) submitted the following resolution; which was referred to the Committee on Government Reform

--------------------------------------------------------------------------------

RESOLUTION

Recognizing the public need for fasting and prayer in order to secure the blessings and protection of Providence for the people of the United States and our Armed Forces during the conflict in Iraq and under the threat of terrorism at home.

Whereas the United States is currently engaged in a war on terrorism in response to the attacks of September 11, 2001;

Whereas the Armed Forces of the United States are currently engaged in a campaign to disarm the regime of Saddam Hussein and liberate the people of Iraq;

Whereas, on June 1, 1774, the Virginia House of Burgesses called for a day of fasting and prayer as an expression of solidarity with the people of Boston who were under siege by the enemy;

Whereas, on March 16, 1776, the Continental Congress, recognizing that the `Liberties of America are imminently endangered' and the need `to acknowledge the overruling Providence of God', called for a day of `Humiliation, Fasting and Prayer';

Whereas, on June 28, 1787, during the debate of the Constitutional Convention, Benjamin Franklin, convinced of God's intimate involvement in human affairs, implored the Congress to seek the assistance of Heaven in all its dealings;

Whereas, on March 30, 1863, in the midst of the Civil War, Abraham Lincoln, at the bequest of the Senate, and himself recognizing the need of the Nation to humble itself before God in repentance for its national sins, proclaimed a day of fasting, prayer and humiliation;

Whereas all of the various faiths of the people of the United States have recognized, in our religious traditions, the need for fasting and humble supplication before Providence;

Whereas humility, fasting, and prayer in times of danger have long been rooted in our essential national convictions and have been