[Eugene Volokh, 12:14 PM]
UPDATE ON THE SPITTING-ON-POLICEMAN CASE: I'm out of town and will be blogging little or nothing this weekend, but I thought I'd quickly mention that it does now seem that there was, in the words of a proviso in my original comment, "some pretty important background that's not in the story (such as a long criminal history, or some other aggravating circumstance, which might make the sentence at least somewhat more defensible)." Here's Matt Rustler's update to his original post; and the Houston Chronicle (thanks to reader Gerald Dearing for the pointer) -- the defendant had been convicted of rape and burglary in the past, and apparently bit the police officer as well as spitting on him -- and, I'm told, the AP have stories that go into still more detail:

UPDATE: Ken Lammers at CrimLaw has done more research than either CNN/Reuters or I did, and the result is something of a lesson about the need to fact-check (or perhaps I should say "law-check") news reports, even from reputable sources. As Ken points out, the Oklahoma statute that punishes spitting on a government employee doesn't specify the punishment for the crime, instead just declaring it a felony. Thus, the general provision for punishment of felonies should apply--and it provides for a fine of up to $1000 and imprisonment for up to two years, not life in prison. Ken surmises--almost certainly correctly--that the judge imposed the sentence in this case pursuant to the State's multiple offender statute. That isn't quite the same as sentencing the defendant to life in prison "for spitting on a police officer," I think. It might be more accurate to say he was sentenced to life in prison for being a recidivist jerk. (The original CNN/Reuters article did give some hint of this when it mentioned the defendant's previous convictions, but asserted that the spitting in and of itself was punishable by a life sentence.) This sentence may survive appeal after all.

In any case, that's pretty much it for the weekend. Responses to e-mails will be even slower than usual.

 
[Eugene Volokh, 2:08 PM]
Why I oppose the proposed Victims' Rights Amendment: I have a piece about this at msnbc.com, where I'm finishing up guest-blogging for Glenn Reynolds. Here are some key paragraphs:

Though I’m a pretty solid law-and-order Republican, I oppose this amendment. I say this even though I fully agree that the law should protect crime victims -- something that the laws of all states already aim to do in various ways.

Victims’ rights, I believe, should continue be protected by state laws, and not by a federal constitutional amendment. The citizens of each state are now free to choose what level of protection to give crime victims -- and, after all, voters know they may one day become crime victims, so voters and legislators have plenty of incentive to provide ample protection. The Framers designed our Constitution to allow this sort of state-based approach, and they were right to do so. . . .

[I] think federalism is valuable here, for two practical reasons. The first is that conditions -- crime rates, government resources, citizen attitudes -- do vary considerably from state to state. Constitutional rights aren’t free: They require the government to spend time, effort, and money providing extra hearings, longer hearings, restitution enforcement systems, and the like. These resources may well be taken from other parts of the law enforcement system. A prosecutor who’s involved in a victim’s rights hearing isn’t involved in prosecuting other cases; and when there’s a shortage of prosecutors, there may be more plea bargains, so that criminals get out of jail earlier and then victimize still more people. Californians may be willing to run this risk in many cases, or appropriate more money to fund these programs. Citizens of Vermont, given their budgetary and moral priorities, might prefer to have narrower programs. Is there really that compelling a reason for Californians to impose their preferences on Vermonters, or vice versa? (Conversely, if the costs I suggest are tiny, then presumably Vermonters would adopt these victims’ rights proposals on their own, with no need for a federal amendment.) . . .

Second, the proposed amendment isn’t just a grant of extra rights to victims. It’s also a transfer of decisionmaking power from elected state legislators in 50 states to (ultimately) the nine U.S. Supreme Court justices. It will be federal judges, after all, who get to decide what constitutes “reasonably [being] heard,” “du[e] consider[ation],” “unreasonable delay,” “just and timely claims,” “substantial interest,” or “compelling necessity.” Now I don’t want to malign federal judges; they’re generally good people, and while they make mistakes, so do state legislators. But state legislators’ mistakes aren’t that hard to correct — all it takes is enacting a new statute.

And because we have 50 states, legislators and voters in one state can see what’s being done in other states, and what works and what doesn’t. The result is a sort of evolution through human selection: Laws that prove too costly, too vague, or counterproductive can get replaced. Laws that prove effective can be adopted in other states. And as time goes on and new needs arise, state legislatures can adapt to these needs. The constitutional decisions of federal judges, on the other hand, are very hard to change. A new constitutional amendment to fix specific problems would only pass if it got votes from 2/3 of the House, 2/3 of the Senate, and 3/4 of the state legislatures. The courts might be persuaded to reverse themselves if their decisions prove impractical, but they’re usually reluctant to do so. (Every so often we hear about the Supreme Court reversing its own precedents, as in last week’s sexual rights decision, but that’s actually pretty rare.)

I’m not trying to romanticize state legislators: They’re often wrong, and they’re often slow to admit they’re wrong. The evolution that I describe operates slowly and imperfectly. I just think that, for all its flaws, the state legislative process will on balance yield sounder results than the federal judicial process.

Some people say that the Constitution should be venerated, and that the work of the wise Framers shouldn’t be sullied by frequent amendment. I don’t really buy this. . . . Still, one of [the Framers'] core judgments was indeed sound: Not everything should be done by the federal government, whether by the federal Congress or federal judges. . . .

More on all this at msnbc.com.

 
[Eugene Volokh, 11:40 AM]
Life sentence for spitting on police officer: Well, this definitely seems quite excessive, at least unless there's some pretty important background that's not in the story (such as a long criminal history, or some other aggravating circumstance, which might make the sentence at least somewhat more defensible). I don't believe that courts should set it aside on the grounds that it violates the federal Cruel and Unusual Punishments Clause, for constitutional reasons roughly the same as those described in the most conservative opinions in the Three Strikes cases -- I don't think the Clause should be read as speaking to length of confinement, or requiring a proportionality analysis of the gravity of the offense and the length of the term. But I do hope, and expect, that the Oklahoma courts will set this sentence aside on state law grounds. (Thanks to Matt Rustler for the pointer.)

 
[Eugene Volokh, 9:54 AM]
"Bring them on": Today's Bushism of the Day is:

"My answer is bring them on." -- On Iraqi militants attacking U.S. forces, Washington, D.C., July 3, 2003

If "Bushism" simply meant here "the sort of statement that is characteristically Bush's," then the characterization might well be accurate. But given that "Bushism" is usually used by Slate in a pejorative way, I thought it might be helpful to look at the broader transcript:

QUESTION: A posse of small nations, like Ukraine and Poland, are materializing to help keep the peace in Iraq, but with the attacks on U.S. forces and casualty rates rising, what does the administration do to get larger powers like France and Germany and Russia to join in the American (inaudible)?

BUSH: Well, first of all, you know, we'll put together a force structure that meets the threats on the ground. And we got a lot of forces there ourselves. And as I said yesterday, anybody who wants to harm American troops will be found and brought to justice.

There are some who feel like that if they attack us that we may decide to leave prematurely. They don't understand what they're talking about, if that's the case.

Let me finish.

There are some who feel like that, you know, the conditions are such that they can attack us there. My answer is bring them on. We got the force necessary to deal with the security situation.

Of course we want other countries to help us. Great Britain is there. Poland is there. Ukraine is there, you mentioned. Anybody who wants to help, we'll welcome to help. But we got plenty tough force there right now to make sure the situation is secure.

We always welcome help. We're always glad to include others in. But make no mistake about it, and the enemy shouldn't make any mistake about it, we will deal with them harshly if they continue to try to bring harm to the Iraqi people.

I also said yesterday an important point, that those who blow up the electricity lines really aren't hurting America, they're hurting the Iraq citizens. Their own fellow citizens are being hurt. But we will deal with them harshly as well.

In context, it seems to me that Bush is saying something that needs to be said, at least given the Administration's current Iraq policy: Americans won't be driven from Iraq by attacks on our troops. If you want to fight us, fine. We'll fight back, and we're definitely not going to be pushed to leave. We'll point out that you're hurting your own people, so in that respect we'll ask you to stop. But we won't negotiate with you; if you want to fight us, we can handle it. Seems reasonable to me.

     And, as usual, it seems to me that Slate's criticism of Bush (and note that here Slate doesn't even have the "it's just a joke" excuse) would be more fair if it included this context, or at least a link to the context.

 
[Eugene Volokh, 8:53 AM]
1941 Independence Day address by Robert Jackson (then-Attorney General, later Justice): Eric Muller (IsThatLegal?) has it, courtesy of law professor John Barrett. Short and eloquent, and apparently never before published.

 
[Eugene Volokh, 11:46 AM]
Sweet! My friend Steve Newman told me that I was quoted on slippery slopes by Geoffrey Nunberg in his Fresh Air commentary last night. It was just a small snippet, but I was delighted. It's the best kind of quote: When someone you don't even know, and who hasn't even called you to ask you about this, quotes something you've written. Makes my day.

UPDATE: A reader points out that there's a written version of this on Nunberg's site.

 
[Eugene Volokh, 11:39 AM]
Congress can ban race preferences in federally funded education, even after the Grutter decision; John Rosenberg correctly points this out. (For those libertarians who don't like Congress imposing its will on private educational institutions, Congress can certainly limit this to state universities -- though once Congress decides to ban race discrimination against nonwhites in universities, which is how Title VI has been practically interpreted, it seems to me proper to also ban race discrimination against whites, even if one thinks as a matter of first principles that private universities ought to be free to choose students as they please.) I doubt that Congress will be able to muster the political will to do this, but I think it would be worth trying in any event.

 
[Eugene Volokh, 6:35 AM]
Some dare call it treason: A friend of mine asks:

If it is libelous to say "[X] beats his wife," why wouldn't it be libelous to say "[X] is a traitor"? I'm not asking out of any intent to litigate, but rather as a sudden curiosity, especially at a moment when [a certain person] is walking around saying things like: "The inevitable logic of the liberal position is to be for treason." Since treason is a far more serious crime, why is it far easier to accuse people of it?

     A great question, and here's the answer: Libel law punishes false and defamatory statements that are likely to be perceived as statements of fact. "X beats his wife" is usually likely to be perceived as a statement of fact (though in some contexts, for instance in a comedy routine, or something that's clearly a hypothetical, it might not be). "X is a traitor" may be perceived as a statement of fact in some situations, e.g., "During World War II, X was a traitor" or even "During his stay in Baghdad, journalist X committed treason." Both of these statements tend to suggest that the speaker knows some facts about X that the speaker is capturing using the term "treason." The statement is defamatory, and if it's false (and the other requirements of libel law are met), then it's libelous.

     But sometimes the word "traitor" doesn't carry with it a factual allegation -- rather, it expresses a value judgment. "The inevitable logic of the liberal position is to be for treason," or "liberals are traitors," even when applied to a particular person, doesn't suggest that the person in fact supports treason, or has committed treason. Rather, it suggests that, given the facts that the speaker and the listeners both know about the person -- the person is a liberal, the person has written this-and-such, and so on -- the person is morally tantamount to a traitor, or would support treason if he were only consistent. "Is to be for treason" or "are traitors" in this context are statements of pure opinion, pure evaluative judgment. They aren't factual allegations.

     This may sound like a legalistic distinction, but it is in fact the legally required distinction, and it's a necessary one. For a specific example of its application by the Supreme Court, see Greenbelt Cooperative v. Bresler (1970). A newspaper quoted people who said Bresler committed "blackmail" -- but in a context where it was clear that they meant "Bresler's actions [which were factually accurately set forth] are morally tantamount to blackmail" (opinion) rather than "Bresler had committed the crime of blackmail" (fact):

During the course of the arguments Bresler's opponents characterized the position he had taken in his negotiations with the city officials as "blackmail." The Greenbelt News Review was performing its wholly legitimate function as a community newspaper when it published full reports of these public debates in its news columns. If the reports had been truncated or distorted in such a way as to extract the word "blackmail" from the context in which it was used at the public meetings, this would be a different case. But the reports were accurate and full. Their headlines, "School Site Stirs Up Council - Rezoning Deal Offer Debated" and "Council Rejects By 4-1 High School Site Deal," made it clear to all readers that the paper was reporting the public debates on the pending land negotiations. Bresler's proposal was accurately and fully described in each article, along with the accurate statement that some people at the meetings had referred to the proposal as blackmail, and others had indicated they thought Bresler's position not unreasonable.

It is simply impossible to believe that a reader who reached the word "blackmail" in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime.

Likewise with "The inevitable logic of the liberal position is to be for treason." So there.

 
[Eugene Volokh, 11:05 PM]
Normandy museum and American insignia -- a different explanation: Reader Nicolas Bray (who in turn thanks RNW and John O in the comments on the Dissident Frogman site) presents an alternative theory to that described in the post from this morning:

On the basis of these pictures:

[picture one]
[picture two]

it seems likely that the middle flagpole is always kept empty. Why no American flag? Well, it's a memorial specifically for a British outfit (called the Sherwood Rangers) that liberated Bayeux. Why have an empty flag pole? I dunno. No one ever seems to comment on it.

Why no American flags in the gift shop? Well, on the basis of this:

[picture three]

it sounds as though the entire Bayeux memorial is dedicated specifically to Commonwealth soldiers. I don't know a whole lot about how the gift shops usually work at Normandy memorials (or about Normandy memorials in general) but it seems to me that in such a situation it wouldn't be unreasonable for the gift shop to only sell Commonwealth flags.

You probably know better than I what to make of it at this point, but I'm not quite convinced that there's anything sinister going on here.

I much appreciate hearing the alternate factual theory, which may well be correct. I can't be sure of the facts (an uncertainty that I tried to signal in my original post), but I thought I'd pass this along so people were aware of the alternative explanation, and so that some might even be able to check it on their own.

UPDATE: I can't exactly tell what to make of this post on the Dissident Frogman site, but it does make me much less confident that any removal of insignia was going on. In any case, if you're interested in the subject, please read the material for yourself.

 
[Eugene Volokh, 5:25 PM]
If you're in L.A. and want to see the July 4 Hollywood Bowl show, some friends and I would be glad to unload some tickets (at least 4 as of the time this message is being posted) on you. See here for details on the event, but the short summary is that it involves (1) the L.A. Philharmonic, (2) Kenny Rogers, (3) a generally July-4-ish musical program, and (4) fireworks, the real kind, not the metaphoric. I've gone to these programs the last couple of years, and they're a lot of fun. Unfortunately, this year we have to go out of town, so we'd like to sell our tickets.

     The tickets are in section E, which is next to the Terrace Boxes -- pretty close to the stage, but off to the side. They are $35 each (their normal cost), and we also have some parking passes.

     If you're interested, please e-mail me at volokh at law.ucla.edu. Thanks! Now, back to our regularly scheduled programming . . . .

 
[Eugene Volokh, 5:22 PM]
Nike v. Kasky, the First Amendment, and commercial advertising: My Wall Street Journal piece on the subject is here.

 
[Eugene Volokh, 5:17 PM]
The "invited error" doctrine says that a litigant can't ask a judge to do something (e.g., to admit certain evidence), and then complain on appeal that the judge was mistaken to do it. Here's the Eleventh Circuit's application of the doctrine in today's Glassroth v. Moore case, which holds that Alabama Chief Justice Roy Moore violated the Establishment Clause by putting up a large Ten Commandments sculpture in front of the courthouse:

First, he contends that the district court judge should not have made any factfindings based upon his viewing of the monument and its surrounds. The judge unquestionably made important factfindings as a result of what he saw when he viewed the monument and the rotunda in which it is located. That was error, the Chief Justice argues, because he had thought that the only purpose of the district court’s view of the monument and the area around it was to provide the court with a physical context within which to assess the evidence admitted in the courtroom. . . .

Counsel for the Chief Justice agreed with that statement about how the view should be conducted, and he made clear that the whole point was for the district court judge to be able to gather facts about the monument and its setting . . . . So eager was [the Chief Justice's lawyer] to have the district court judge conduct the view "just like a juror would," that counsel for the Chief Justice volunteered his help in arranging parking for the district court judge at the Judicial Building. Any conceivable error was not just invited error, but invited error with a parking space. . . .

 
[Eugene Volokh, 1:31 PM]
Puzzle for the day: From which points on Earth can you go 10 miles south, 10 miles west, 10 miles north, and arrive at exactly the place from which you started? (For the nitpickers, assume that the Earth is a perfect sphere, and that all points on its surface -- which is what I mean by "on Earth" -- are accessible to you.) The answer is here.

 
[Eugene Volokh, 11:40 AM]
Judge Alex Kozinski on derivative works: "What's So Fair About Fair Use?," an article cowritten by Judge Alex Kozinski and Chris Newman, is now on the Web (though the formatting is a bit glitchy). The basic thesis is that Congress should change copyright law to let people freely create derivative works of others' works, so long as they pay reasonable compensation to the original owner:

Let’s imagine that tomorrow Congress were to revise the Copyright Act as follows. From now on, when an infringing use contains enough original expression to qualify as a derivative work, the following provisions will come into play: First off, section 107 [fair use] does not apply. If you use someone else's work to make profits, or in such a way that you reduce the copyright owner's ability to profit, you may be held accountable. At the same time, however, sections 502 and 503 also do not apply. No longer do courts have special authorization to grant injunctions simply to prevent or restrain infringing derivative works. Instead, they are to treat copyright injunctions in these cases the way equitable relief is usually treated, granting them only when there is strong reason to believe that damages will be inadequate.

The article defends this position, and, best of all, includes the following (since it starts with the case about The Cat Not in the Hat, where the Dr. Seuss copyright owners got an injunction against a Dr. Seussesque story about the O.J. case):

Those lawyers for Seuss were so sly and so slick,
that they wrote a complaint and they filed it real quick:
“We took a look. We saw a book.
We saw a book writ by a crook.
This crook had took our own book’s look!
It looks the same way in a box.
It sounds the same way with a fox.
It tastes the same with bagels and lox!
It copies rhymes from here and there.
this book infringes everywhere!
And though they say Juice use is fair,
their claim is just so much hot air.
It’s satire, not a parody! Read it! Read it! You will see!
Read the book and see, we plea! Pay heed to Justice
Kennedy!
And Cindy Loo Who who is no more than two,
If she saw this crook book would not know what to do.
Why, she might even think it was by you-know-who!
So DON’T let poor Who boys and girls be ensnared!
Please, save us from damage that can’t be repaired!
In closing we say, and the court may it please:
This book MUST go the way of the Truffula trees!"

 
[Eugene Volokh, 11:26 AM]
More from Marcus Cole: Randy's and my friend Marcus Cole, a law professor at Stanford Law School, writes this follow-up to his earlier message on race preferences and the assumptions that they lead people to draw:

In case you are interested, I've had dozens of e-mails from people who have read my letter to Eugene on The Volokh Conspiracy. Most of these have been very warm and supportive. I thought that I should address a few comments from people in favor of affirmative action.

One writer said: "Obviously you benefited from affirmative action; you graduated from Northwestern and you are teaching at Stanford."

My response:

This proves my point. Three of the 29 active members of the Stanford faculty, slightly better than one tenth, are Northwestern graduates. Only Yale, Stanford, and Harvard have larger representation on our faculty. (The same is true for the Supreme Court, which is one-ninth "Northwestern.") Yet no one asserts that the two white Northwestern graduates on our faculty had corners cut for them. The writer was so blinded by my race that he was certain that a Northwestern degree made me underqualified, and he didn't bother to check the facts.

Another e-mail said: "What if your dean came to you and said, Marcus, the truth is that,as you may have noticed, we don't normally hire white men with the credentials you had when you were on the teaching market. We made an exception in your case because you are African American. We thought that this would give you a valuable perspective that would genuinely add to our community. We're happy with that decision." Would you feel bad about this? Would you leave? Would you tell her that you think she made a bad decision?"

My response:

Two points. First, I'm happy to say that at Stanford, we live under what is affectionately referred to here as the "Rice doctrine," which establishes an official policy of no affirmative action in tenure appointments. Second, I referred the e-mailer to Eugene's excellent original response to Dowd, to which I, in turn responded. In addition, I ask "why should I give up something that I may have earned but for both types of racism?" To paraphrase Eugene, "are white people going to give up everything they have gained (and possibly, inherited) from the world of Jim Crow which this environment replaced?" Are you telling me that I either have to accept a world of affirmative action racism or accept a world of Jim Crow racism? I'm sorry, but I don't think those are my only choices. And I won't give up any of the chittlin's massa throws into my pork barrel. He just better not expect me to grovel in appreciation at his "generosity."

I just thought that you might be interested in these exchanges. Frankly, I didn't anticipate the Northwestern question, or the level of anger that pro affirmative action folks have for ingrates like me.

 
[Eugene Volokh, 11:08 AM]
Race preferences, covert and overt: My colleague Rick Sander had a very good op-ed in the L.A. Times yesterday, which he graciously allowed me to post here:

Colleges Will Just Disguise Racial Quotas

L.A. Times, June 30, 2003

Richard Sander [Richard Sander is a professor of law at UCLA and director of its Empirical Research Group]

In its affirmative action decision last week, the Supreme Court announced that explicit racial boosts, like the 20 points awarded to blacks by the University of Michigan's undergraduate admissions office, are unconstitutional. But "individualized assessments" of applicants (like those used by Michigan's law school) that factor in race among other considerations are not only acceptable but highly desirable. Alas, as nearly every admissions officer in American higher education must know, this distinction -- as laid out by Justice Sandra Day O'Connor -- is either very naive or very cynical. Nothing could be easier than to dress up a point system -- or a racial quota, for that matter -- as an "individualized assessment."

Law school admissions, including Michigan's, are notoriously dependent on numbers. At almost every American law school, 90% of the admission decisions can be explained by knowing only four things about each applicant: her LSAT score, her undergraduate college, her GPA and her race. Black applicants -- at Michigan and most other schools -- receive enormous, easily quantifiable boosts, despite official assertions to the contrary.

The court, in Justice O'Connor's voice, seems to be saying: "Create diversity any way you like -- but for heaven's sake, don't be honest about it!"

In California, where the voters banned (through Proposition 209) the use of race in state university admissions in 1996, disguising affirmative action is an art form. In 1997, when strict compliance with Proposition 209 produced a first-year class with only one black student, Berkeley's Boalt Hall law school was roundly criticized, even by the leaders of the Proposition 209 movement, who believed the school should have been able to reach out and recruit more minority students.

Boalt learned its lesson. The school created a system of "individualized assessment" of applicants, dramatically increasing its admissions of black and Latino applicants with low test scores while, not accidentally, keeping the test scores and GPAs of its white and Asian admittees as high as ever -- a feat that is impossible without taking race heavily into account.

Today, Boalt is nearly as racially diverse as it was before Proposition 209. Its evasion of the law is so notorious that it was implicitly acknowledged by both sides arguing the Michigan cases before the Supreme Court.

My academic home, UCLA Law School, has tried hard to be more principled, but its students and faculty both badly want more racial diversity, and the lure of skirting the law without consequences has proved irresistible.

In 2001, the school adopted a special admissions track for students who express an interest in "Critical Race Studies," a "program of study focusing on the nexus of race and the law." Students who apply to the program are, not surprisingly, much more likely to be nonwhite than UCLA law applicants in general. Of these applicants, those who are black or Latino are much more likely to receive the staggering numerical boosts that push them into the admissible pool. But this, of course, is done through an "individualized assessment."

The school also has an admissions track for candidates who are at a socioeconomic disadvantage. This track -- which I helped design -- began as a sincere and successful effort to increase the number of students from lower- income families and communities. From the beginning, of course, such preferences gave some disproportionate benefit to blacks and Latinos, but not nearly enough to satisfy the school's faculty or students. So the program has been steadily changed in the years since to give heavier weight to those socioeconomic factors that correlate with race.

Boalt and UCLA Law School are merely examples of a pervasive pattern at the University of California: academic programs rigging their admissions systems to admit underrepresented minorities with lower scores and weaker qualifications through the back door.

Proposition 209 can be violated with impunity in part because it has no internal enforcement mechanism and because, after all, most of the state's leaders have called for its repeal. But something more is going on -- something captured in O'Connor's ambivalent opinion in the Michigan cases.

It seems that many of those in the American elite who would recoil at the idea of explicit quotas are happy to tolerate more subtle systems that accomplish the same thing. Even many avowed opponents of affirmative action seem unprepared to live with the full consequences of its abolition.

The Bush administration, for instance, has singled out for praise a Texas program under which students in the top 10% of their high school class are guaranteed admission to state colleges. Because Texas high schools are highly segregated, this program ensures slots for black and Latino students.

Affirmative action in higher education, as we practice it in the U.S. these days, may arguably provide some help for upper-middle-class minorities. Mostly, however, it allows us to pretend that our racial problems are simpler than they really are -- that a little "individualized assessment" can give us a fully integrated society, and that everything will be just fine in a few more years.

Meanwhile, we have done little to address, or even talk about, the real problems: the dramatic test-score gap across racial lines, the weaknesses of inner-city schools and the intensity of urban racial segregation.

Allowing large and systematic racial preferences while pretending to frown upon them gives us the worst of both worlds: complacency about racial disparities and a code of silence that prevents us from measuring, evaluating or assessing what we have wrought.

 
[Eugene Volokh, 11:03 AM]
Some American insignia removed from the Battle of Normandy museum: [UPDATE: See also here for an alternative factual theory, which suggests that there's nothing at all untoward happening here; I don't know which factual theory is accurate.]

[FURTHER UPDATE: I can't exactly tell what to make of this further post on the Dissident Frogman site, but it does make me much less confident that any removal of insignia was going on. In any case, if you're interested in the subject, please read the material for yourself.]

If The Dissident Frogman is correct on this, then this is pretty bad. Go to the site and see the photos -- it's hard to do it justice without the pictures.

     Incidentally, to preempt any objections -- no, this isn't like renaming "French fries" into "freedom fries" (something that I thought was silly but not outrageous). Unlike French fries, the Battle of Normandy museum commemorates the liberation of France from the Nazis by the armies of allied nations. The symbolism of abandoning the term "French fries" is "we're peeved at the French." If the museum operators did indeed intentionally take down the American insignia (while leaving, incidentally, the British, the French, and in two instances the Canadian), the symbolism of that is "we're so peeved at the Americans that we're willing to deny them honor for helping rescue our nation from Nazi occupation." And that seems to me to be a pretty appalling symbolic statement to make.

     Thanks to Anticipatory Retaliation for calling this to my attention.

 
[Eugene Volokh, 9:15 AM]
Cute: ABC News keeps its archives in a poll vault.

 
[Eugene Volokh, 7:51 AM]
Arnold Schwarzenegger: My friend Sheri Annis, who worked for him in a California initiative campaign that he funded, has some very interesting thoughts about the special advantages and disadvantages that he'd have if he ran for California governor in the Davis recall race. Up at National Review Online this morning.

 
[Eugene Volokh, 7:45 AM]
How can Congress ban drugs without a constitutional amendment? Reader Troy Loney writes:

I'm wondering why it took a Constitutional amendment to make alcohol illegal, while marijuana (and drugs in general) are routinely banned by legislation alone. . . .

Entirely aside from the [policy] issues of the War on Drugs . . ., the Constitutional questions are troubling. This has bothered me for a long time (since college, in fact, and I graduated over thirty years ago), and was the original issue which swayed me to libertarian philosophies. . . .

     Until the mid-1930s, the Court took the view that the power to "regulate Commerce . . . among the several States," even when coupled with the power to "make all laws which shall be necessary and proper for carrying into execution" the Commerce Clause power, only barred interstate commerce, and not manufacturing or purely local commerce. Banning all "manufacture, sale, or transportation" of alcohol thus required a constitutional Amendment.

     But in the mid-1930s, the New Deal Court reversed course on this, and began to uphold virtually every federal restriction on commercial activity (or activity even loosely tied to commerce), whether interstate or purely intrastate, on the theory that even purely local activity affected the national market, and thus regulating the purely local was "necessary and proper for" regulating the interstate. Thus, in Wickard v. Filburn (1942), the Court held that federal limits on growing wheat could apply even to wheat that a farmer grew on his farm for home consumption, since such growing displaced sales that would otherwise happen commercially, and thus indirectly affected the national market for wheat (especially if one considered not just this farmer, but all other farmers like him). The rule now is that

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.

Under this approach, Congress can ban all manufacturing (or growing) of drugs, as well as all distribution, because such a ban would make it easier to enforce a ban on interstate commerce. Congress may likely ban all possession, too, though it's just barely possible that the recent United States v. Lopez (1995) decision, which limited Congress's power to ban possession of goods (there, guns near schools) may render unconstitutional the bans on mere possession.

     The War on Drugs may be related to some reductions in the scope of the Fourth Amendment's protection against unreasonable searches and seizures. It may also be related to some reductions in property rights, because of the growth of forfeiture laws (though fairly broad forfeiture laws were historically pretty well established, and recognized as constitutional, even before they were used in the War on Drugs). But I don't think it has materially contributed to the expansion of Congressional power under the Commerce Clause, though it's conceivable that it might help preserve this expansion, by maintaining a conservative constituency for a broad Commerce Clause as well as a liberal one.

 
[Eugene Volokh, 7:35 AM]
People say that the L.A. Lakers should hire fewer black players, "to be more representative of the city they play in at a time when they are satisfying fans by winning." Oh, wait, that's not quite right -- after all, that would be horribly racist, and no-one would call for this sort of thing, right? Actually, people are saying that the Toronto Blue Jays should hire fewer white players, "to be more representative of the city they play in at a time when they are satisfying fans by winning." ("'You go to a Jays game when Seattle's in town and look at the number of Japanese fans in the stands,' [Peter Donnelly, director of the Centre for Sports Policy Studies at the University of Toronto] said in reference to the Mariners' Ichiro Suzuki." It must follow that if white fans would be more drawn by white basketball players, the L.A. Lakers should busily start trying to hire more.)

     The analogy, by the way, strikes me as very strong. If people are arguing about the need to disfavor some people based on race in order to remedy past societal discrimination, or counteract the effects of present discrimination or what have you, then I can understand why that argument would apply to disfavoring whites differently from disfavoring nonwhites. (I still wouldn't buy the argument for other reasons.)

     But when people are arguing about the need "to be more representative of the city" in order to "satisfy[] fans," that argument applies equally, I think, to all forms of racial proportionalism. If it's legitimate to satisfy fans by intentionally hiring more nonwhites and fewer whites, then it's legitimate to satisfy fans by intentionally hiring fewer blacks. Likewise, it would be legitimate to satisfy voters and legislators by getting a University of California that's "more representative of the [state]" -- admit many more Hispanics, somewhat more blacks, and many fewer Asians and (I suspect) Jews. After all, any group that's overrepresented means that other groups will be underrepresented, and the institution's funders (whether fans or taxpayers) might not be "satisf[ied]."

     Thanks to Matt Welch at Reason's Hit & Run for the pointer.

 
[Eugene Volokh, 6:05 AM]
Al Gore and the Internet: Reader Jack Sullivan points out that, while we're discussing misused quotes, it may be worth debunking the common assertion that Al Gore said that he invented the Internet. I agree: Al Gore didn't actually say this. I suspect that most people who hear "Al Gore said that he invented the Internet" realize this must be something of an exaggeration, because on its face the statement is so silly (Al Gore isn't a techie). But still, it's worth reminding people that he didn't literally make that claim.

     Here's an excerpt from the Snopes.com item on this subject:

No, Al Gore did not claim he "invented" the Internet, nor did he say anything that could reasonably be interpreted that way. The derisive "Al Gore said he 'invented' the Internet" put-downs are misleading distortions of something he said (taken out of context) during an interview with Wolf Blitzer on CNN's "Late Edition" program on 9 March 1999. . . .:

During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country's economic growth and environmental protection, improvements in our educational system.

Clearly, although Gore's phrasing was clumsy (and self-serving), he was not claiming that he "invented" the Internet (in the sense of having designed or implemented it), but that he was responsible for helping to create the environment (in an economic and legislative sense) that fostered the development of the Internet. . . .

However, validating even the lesser claim Gore intended to make is problematic. Any statement about the "creation" or "beginning" of the Internet is difficult to evaluate, because the Internet is not a homogenous entity (it's a collection of computers, networks, protocols, standards, and application programs), nor did it all spring into being at once (the components that comprise the Internet were developed in various places at different times and are continuously being modified, improved, and expanded). Despite a spirited defense of Gore's claim by Vint Cerf (often referred to as the "father of the Internet") in which he stated "that as a Senator and now as Vice President, Gore has made it a point to be as well-informed as possible on technology and issues that surround it," many of the components of today's Internet came into being well before Gore's first term in Congress began in 1977, and it's hard to find any specific action of Gore's (such as his sponsoring a Congressional bill or championing a particular piece of legislation) that one could claim helped bring the Internet into being, much less validate Gore's statement of having taken the "initiative in creating the Internet."

It's true that Gore was popularizing the term "information superhighway" in the early 1990s (when few people outside academia or the computer/defense industries had heard of the Internet) and has introduced a few bills dealing with education and the Internet, but even though Congressman, Senator, and Vice-President Gore may always have been interested in and well-informed about information technology issues, that's a far cry from having taken an active, vital leadership role in bringing about those technologies. . . .

 
[Eugene Volokh, 11:01 PM]
Justice O'Connor's "equal protection" rationale in Lawrence v. Texas: Some people have argued that Justice O'Connor's opinion is more persuasive -- which reasoned that the government may ban sexual practices that it sees as immoral, but may not discriminate between same-sex couples engaging in such practices and opposite-sex couples engaged in such practices -- than either the majority or the dissents.

     But how exactly does this work? Justice O'Connor would presumably let legislatures discriminate between couples who are engaging in genital sex and couples who are engaging in oral or anal sex (otherwise, a state would only be able to ban either all sexual practices or none, something Justice O'Connor doesn't suggest). The legitimate justification for such discrimination, she would suggest, is the majority's moral judgment.

     Why then doesn't the same sort of moral judgment justify the discrimination between heterosexual oral/anal sex and homosexual oral/anal sex? After all, lots of people do think that homosexual sex is morally different from heterosexual sex. And they have about as much (or as little) justification for this moral judgment as they do for the moral judgment that oral/anal sex is morally different from genital sex (or, in some states, that anal sex is different from oral or genital sex).

     Perhaps the explanation lies in Justice O'Connor's suggestion that the Equal Protection Clause violation lies in the hostility to homosexuals that is exhibited by bans on same-sex sexual conduct -- the "bare . . . desire to harm a politically unpopular group." "Moral disapproval of this group," she reasons, "like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection." But this group is politically unpopular because it engages in sexual practices that Texas citizens think are immoral (same-sex sodomy); the moral disapproval of this group seems to stem from a moral disapproval of their conduct (for instance, devout Christians who oppose homosexuality, I take it, oppose it chiefly because of the prohibition on a form of conduct contained in Leviticus).

     Under Justice O'Connor's framework, moral judgments about sexual practices are permitted when they turn on the particular organs involved (even when there's no explanation for the distinction between organs other than "morality"). But they may not be made based on the gender of the person attached to the organs. Why is the latter (gender) any less a fit subject for moral judgment than the former (organs)?

     (I realize that there are other possible bases for the discrimination between people who engage in genital sex and people who engage in oral/anal sex besides mere moral disapproval -- but as I understand it, Justice O'Connor wouldn't require any such basis, and would find moral disapproval to be enough. And even if those other bases, for instance fostering of childbearing, are accepted, then it seems to me that similar bases may also be accepted for the straight sex/gay sex distinction.)

     So say what you will about the majority or the dissent, but they are at least consistent in their views of whether pure moral judgments are enough to provide a constitutionally sufficient basis for punishing noncommercial sexual practices among consenting adults. Justice Kennedy says no, Justices Scalia and Thomas say yes. But it seems to me that Justice O'Connor's in-between position is less persuasive than either of those two.