[Eugene Volokh, 3:56 PM]
Traffic totals for various blogs: N.Z. Bear now tracks traffic totals (visits, I think, rather than just page views) for a wide range of blogs. Not all blogs are included -- How Appealing, for instance, isn't; I assume that it's largely because they don't have a publicly available SiteMeter counter (it looks like Bear is relying only on SiteMeter data).

 
[Eugene Volokh, 1:39 PM]
Federal Marriage Amendment: Andrew Sullivan aptly criticizes the Federal Marriage Amendment, which reads (in the most recent version that I could find:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Sullivan writes:

Note how the states are effectively barred from providing anything that resembles marriage or any of the "legal incidents thereof." It's an attempt not only to reverse any state that wants to have same-sex marriage but to invalidate all domestic partnership laws, any state-provided benefits, or any support for same-sex couples anywhere anyhow. It's a massive power-grab from the states, in an area where states have always had constitutional authority. If you merely want to stop one state's marriages being nationalized, you have the power already. It's called the Defense of Marriage Act, alongside the long established precedent of states being able not to recognize out of state marriages for public policy reasons. The FMA, in contrast, is an attempt to use the federal constitution to rob gay citizens of any rights in their relationships whatsoever, regardless of where they live or what their states want. . . .

     I think he's quite correct here. The Amendment doesn't just leave state legislatures free to follow their own policies (as it would if it simply said "Neither this constitution or the constitution of any state, nor federal law [omitting the mention of state law], shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups"). Rather, a state legislature would no longer be allowed to enact a law saying "County clerks and state courts shall register and tre t gay marriages the same way as they do straight marriages" -- since, after all, the amendment would bar this "state law" from being "construed to require that marital status . . . be conferred upon unmarried couples or groups" (even though that's precisely what the state legislature wants to require). Even state voters, acting through the initiative process, wouldn't be allowed to legalize gay marriage in their state.

     What's more, this may indeed jeopardize state laws providing for domestic partnerships that mirror some attributes of marriage -- because those laws "require that . . . the legal incidents [of marital status] be conferred upon unmarried couples or groups." One could argue that these laws don't really provide "the legal incidents [of marital status]," because they provide only some incidents (e.g., health insurance, the ability to recover for wrongful death, state tax treatment, and the like). But the stronger argument, I think, would be that the laws do indeed provide "the legal incidents [of marital status]," because they do provide some such incidents, and are aimed at duplicating the rules applicable to married couples.

     So this would indeed be a huge interference with state rights -- and, I think, quite unjustified. If New York voters (or their representatives) decide to allow gay marriage, or gay domestic partnerships that provide most of the incidents of marriage, why should Californians say "no"? If the concern is that the New York marriages would have to be recognized by other states, the Defense of Marriage Act should indeed suffice; and even in the unlikely event that it's struck down (and I should say that some people have urged that it be struck down), that could be reversed with a much narrower amendment than the Federal Marriage Amendment.

 
[Eugene Volokh, 12:05 PM]
More on Dusty Baker: A reader writes, apropos Dusty Baker's comments:

But isn't it still illegal to discriminate on the basis of race? . . . If Baker believes that blacks and latinos play better in the heat, isn't he more likely to play them on hot days? If such a pattern existed, wouldn't the white players on the team have grounds to sue?

Others have made a similar point.

     If there was evidence that Baker was engaging in illegal discrimination, or if he was saying that he ought to do so, then he would be properly taken to task for that.

     But I know of no such evidence; all I see is the inference that because Baker believes something, he'll be willing to violate the law. That seems to me to be an unsound inference. It's contrary to the benefit of the doubt that we ought to give people when deciding whether to publicly condemn them, or to publicly demand apologies for them.

     The fact is that all of us harbor lots of opinions that, if we were willing to violate the law, might lead us to act illegally. Many Jews think that we are God's chosen people. Many atheists (and nonatheists) think that certain religious beliefs are unsound or illogical. Many people think, absolutely correctly, that the average man is stronger than the average woman. Many people think, absolutely correctly, that the average woman is less prone to violence than the average man.

     While all such opinions should be phrased politely, and while as a factual matter there's no doubt that some people will bristle at these points, it seems to me that people are entitled to express them, and shouldn't be publicly condemned for it. It's true that people who hold these beliefs might therefore discriminate against non-Jews, or against certain religions, or against women, or against men. But I don't think that one s ould just condemn a person who expresses these beliefs simply on the grounds that he might act on them in the future, unless we have some better evidence that he really is willing to break the law in that way.

 
[Eugene Volokh, 11:07 AM]
The Limitations of the Denial of Patents: OK, my last item for now on the National Review Online cloning piece. To their credit, the authors recognize that there should be limitations even on anti-cloning measures:

In response to this flurry of activity, it is clearly time for Congress to act, and America to lead. . . . Yet even the best of [the current-anti-cloning] proposals suffers from fundamental flaws -- it exceeds congressional authority and fails to adequately address the vast and disturbing array of emerging embryological technology.

Congress has cited only one enumerated power as a basis for its federal cloning ban: congressional authority to regulate interstate commerce. In order to survive a constitutional challenge, such a ban would need at the very least to substantially relate to commerce among the several states -- a standard that a cloning or embryonic research ban would almost certainly fail.

While an outright "Commerce Clause" ban on human cloning, hermaphroditic embryos, or fertile fetuses might be sexier to voters, legislators should eschew this course in favor of regulations conforming to Congress's limited powers. By doing so, Congress would not only act constitutionally, but could actually reach more disfavored conduct by targeting the substantial economic incentives which motivate human embryological research.

Accordingly, Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research. . . .

If, as prophesied, "big biotech" is waiting to cash in on a Huxleyan vision, then a carefully drafted prohibition on such patents would do much to curb that brave new urge. But maybe big biotech isn't the only Dr. Frankenstein to fear. Suppose Congress worries about nonprofits privately funding narcissists who would fre ersity receives federal money one way or another, whether through research grants or Medicare payments. Even the threat of withholding these federal funds would preemptively padlock these promethean labs, thereby providing an effective if unpopular first step.

Now, take a step back and imagine the possible aggregate effect. Who is likely to still be, as Messenger Boxer would have it, "doing God's work?" Not big biotech. Without patent protection, their process would be protected only as a trade-secret; which works fine for protecting the Coca-Cola formula, but not so well in scientific research where, like your fifth-grade math teacher, the dons require you to show your work. Not universities or hospitals. They'd be cutting off their noses and eyelids to spite their faces; and could never withstand the backlash for choosing such research over education and health-care dollars. Private foundations? Perhaps. But probably not many, particularly if their tax status is on the line. Leaving us with marginalized, privately under-funded, non-tenured scientists who can't prove to anyone how they did it without jeopardizing any profit they might otherwise stand to gain. Have at it.

The hour for debate has passed. Madrid has demonstrated that genetic science and embryology, left to their own devices, will fulfill our worst expectations. Congress should act expeditiously, and constitutionally, to spare us the grotesque reality of children born of aborted mothers.

But while I appreciate the authors' attentiveness to he proper limits of federal power, it seems to me their proposal will be both unduly intrusive and ineffective.

     I suspect that patent law is indeed a powerful incentive for invention, especially when research is expensive (though as I understand it, economists are quite uncertain on the subject). But it's hardly the only incentive. There are lots of very rich people in America, and many more pretty rich people; many of them are sick with some pretty serious diseases; all of them face the possibility of one day become sick with a pretty serious disease. Lots of these people already donate lots of money to medical research. Even if the donations are somehow made non-tax-exempt, and otherwise discouraged, quite a few people may be willing to fund advanced research -- partly out of philanthropy, and partly out of self-interest: If you have some form of disease in your family, and you have a multi-million dollar fortune, and cloning or embryonic research seems to offer some serious potential benefit, you may be perfectly happy to spare some tens of millions to fund this research.

     But beyond this, it's a big world, and even if America tries to "take the lead," it's not clear how much of the world will follow. If Japan or Europe allow patents for human cloning, then the proposal in the NRO would at most diminish the incentive for cloning (though of course broader bans would be limited this way, too). Companies, whether American or foreign, will engage in the research overseas -- probably more slowly, but they'll still do it. Then doctors in the U.S. would use this research (which, though slower in coming, may end up being cheaper to use because of the lack of patents) in the U.S. How much comfort will that give the anti-cloning forces?

     Now those who think that all cloning or embryonic research (and to their credit, the NRO authors apparently want to discourage all cloning but only some em ryonic research -- "Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research") is evil, perhaps because it murdered living human fetuses or some such, might not be much moved by these practical considerations. They might just think that the U.S. government shouldn't grant people patents for technology that's inherently evil, or let them use the courts to defend their evilly gotten gains. On the other hand, denying such patents does seem like a pretty feeble step in the battle against evil.

     On the other hand, those who think that cloning and even "macabre" fetal research are potentially valuable -- if, for instance, proper safeguards are used to keep gestationally old fetuses from being aborted for research purposes, or to prevent the birth of living children with horrible defects, or some such -- while also potentially harmful (if those safeguards aren't implemented), should be about as troubled by the unpatentibility / defunding / tax-exemption-stripping proposals as by total bans. The research will still happen, just in less regulated and less visible contexts and also overseas. If anything, people who are skeptical about at least some forms of this research will have less input in the process than they would without the unpatentibility etc. rules, since the domestic process would be moved entirely to special-purpose organizations whose only job is to engage in the research, and which would thus be less subject to public pressure or even public scrutiny. Not a terribly satisfying result, it seems to me.

 
[Eugene Volokh, 10:47 AM]
Human Cloning and Horror Stories: A separate point about the National Review Online piece I mention in the following post: The piece urges Congress to take serious steps against all human cloning -- but it doesn't show that all human cloning is troubling, even under its own pretty vague standards of what should trouble us. The chief examples it gives are (1) the harvesting of reproductive material from embryos that are gestationally fairly old (22-33 weeks), for purposes of perhaps eventually having actual eggs born from aborted fetuses, and (2) the creation of "mixed gender balls," something that does indeed arouse many people's (and I suspect especially many prospective parents'") revulsion. But why does it follow that human cloning generally, as opposed to certain kinds of human cloning, should be opposed? (They speak generally of cloning, even as they are more nuanced as to other research: "Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research.")

     After all, we don't ban all surgery just because we think some form of surgery are disgusting or even unethical. We don't deny all parents authority over their children just because we know that some parents abuse their kids in the most heinous ways. More broadly, we don't just deny everyone liberty even though we know that some people use their liberty to perform atrocities. Where potentially valuable but sometimes harmful behavior is involved, we usually (not always, but usually) try to discourage the harmful behavior while allowing the valuable behavior (and as I understand it, there are indeed potentially very valuable applications of embryonic cloning), at least unless there's some pretty strong evidence that (1) it's impossible to effectively fight the harmful conduct without also p ohibiting the valuable, and (2) the harmful conduct is so harmful that eliminating the harm justifies eliminating the value of the valuable behavior that's also eliminated.

     Now doubtless the authors of the column believe that all human cloning is indeed harmful, and would distinguish it that way from surgery, childrearing, liberty, and so on. But they don't actually defend this position, or any other position that would justify banning human cloning (e.g., some human cloning isn't harmful, but it's so hard to distinguish the harmful from the valuable, and the harmful is so harmful, that all of it needs to be discouraged). Rather, they simply point to a few troubling applications of the technology, and urge Congress to take steps to discourage the technology altogether. That seems to me to be a mistake.

 
[Eugene Volokh, 10:37 AM]
"We're Reasonably Sure That's Not What the Creator Intended": Nathaniel Stewart and Robert Alt have a piece on human cloning in the National Review Online -- I'll try to blog some more about it later, because it actually contains an intriguing (though I think ultimately misguided) policy proposal. For now, I want to focus briefly on one particular argument they use.

     Stewart and Alt describe some proposals that may well seem troubling, e.g., harvesting ovarian tissue for infertility treatments from 22-33 week old aborted fetuses, or "creating 'part male and part female' embryos." (I say "may well seem troubling" because I don't know all the details, and sometimes the more detailed explanation proves to be less troubling -- or more troubling -- than the one-line summary; but I set that aside for now, because my argument really doesn't turn on this particular factual issue, and because I doubt that I'll be able to go into all the details even if they were present.) They then say "While we don't claim to share Senator Barbara Boxer's anointed insight that tinkering with human embryos is 'doing God's work,' we're nonetheless pretty sure that making a mommy out of an aborted fetus is not what the good Lord intended" and then repeat the argument: "Once again, with due respect to Boxer and Annas, we're reasonably sure that's not what the Creator intended either."

     Now I can't for a moment claim to be a theological expert, but I'm really puzzled about how they can be reasonable sure about which surgical procedures "the Creator intended." It seems to me that religious moral argument in this context can fall into several rough categories:

1. This is wrong because the holy books say that it is prohibited. For those who believe that the holy books are divinely inspired, this would surely be an e fective argument. But unfortunately to my knowledge the holy books don't say much specifically on this topic, which is, I take it, why the argument above focuses on the Creator's supposed intent, rather than on His words.



2. This is wrong because it is contrary to the way human beings operate in their natural, Creator-created state. If one accepts this position, then I agree that human cloning -- both the examples that the authors give, and all other examples -- should be condemned. Unfortunately, this would also condemn most modern surgery, chemotherapy, pharmaceutical care except perhaps using herbs that grow in the wild, and so on. I take it that the authors don't condemn such behavior, even when applied to children; for instance, I assume that they don't worry whether the Creator intended that kids be sometimes born by caesarean section. (I'd also assume that they don't oppose in vitro fertilization, at least on the "unnaturalness" grounds, as opposed to the destruction-of-fetuses grounds; but perhaps I'm mistaken in that assumption.)
   
        Of course, they might defend surgery generally, caesarean sections specifically, hormonal infertility treatments, and so on by saying that the Creator did intend that people use their Creator-given minds to make life better for them. But of course exactly the same can be said about human cloning.



3. This is wrong because it's contrary to the Creator's intent as we infer it from the natural world and from the implications of the holy books. This may well be a legitimate objection to those with a religious worldview -- but thoughtful religionists must surely realize that these sorts of inferences are highly unreliable. After all, they involve not God's actual word, which some might think is infallible (so long as it's properly translated and understood), but people's inferences, often pretty tenuous inferences. And there is certainly a long history of people drawing inferences t are misunderstandings, but I suspect that everyone can point to some errors in inference that others have made.) I doubt, for instance, that the authors agree that the Creator intended not to allow contraception, or that the Creator intended blacks to be kept in slavery to whites, or that the Creator intended that women not be allowed to work or even not be allowed out of the home unless they wear burkas. These counterexamples don't, of course, show that religious inference is necessarily wrong -- but they should warn us of the risk of error that's inherent there.
   
        Of course, to a religious person the risk of error flowing from religious inference cannot be a barrier to ever engaging in religious inference, just as to a secular person the risk of error flowing from secular moral inference cannot be a barrier to ever engaging in secular inference. The Inquisition or the Taliban don't prove the impropriety of religious thinking any more than Stalinism or Maoism proves the impropriety of secular moral thinking.
   
        But at the very least, the risk of error inherent in guesswork about what the Creator must intend shows the importance of carefully articulating the argument, and giving a detailed, specific explanation of why the Creator doesn't intend this, but does intend caesarian sections, or contraception, or in vitro fertilization, or hormone shots, or the use of incubators to care for dramatically premature babies. The risk of error shows the need for thoughtful, overt, and self-critical analysis of just why we fallible humans are making this particular guess about what the inscrutable Creator, who moves in mysterious ways, never actually chose to tell us about his "intentions." Unfortunately, the article doesn't really give us that.



4. The final alternative is This is wrong because it just feels to me lik the sort of thing that the Creator must not intend. This is obviously a tremendously emotionally powerful cause for belief; and I'm sure that at times it has led people in precisely the right direction (I suspect that many religious people's opposition to, for instance, slavery or segregation flowed from this very feeling). But of course it has led them in the opposite direction, too. Here, too, as in the previous item, it seems to me that we need to call on people to explain their reasoning -- and if their reasoning is inexplicable, and just flows from their gut feeling, then I don't think that we should respect the claim much as an argument (as opposed to an expression of their own felt conclusion).

So, at bottom, I think that even deeply religious people shouldn't be terribly impressed by bare arguments about what the Creator intended.

 
[Eugene Volokh, 7:56 AM]
Judging people from the past: Eric Muller of IsThatLegal? has an interesting post on this, contrasting President Bush's quote:

At every turn, the struggle for equality was resisted by many of the powerful. And some have said we should not judge their failures by the standards of a later time, yet in every time there were men and women who clearly saw this sin and called it by name.

with the quote by the nineteenth century British legislator Lord Macaulay:

[T]he very considerations which lead us to look forward with sanguine hope to the future prevent us from looking back with contempt on the past. We do not flatter ourselves with the notion that we have attained perfection, that we are wiser than our ancestors. We believe, also, that our posterity will be wiser than we. It would be gross injustice in our grandchildren to talk of us with contempt, merely because they may have surpassed us . . . . As we would have our descendants judge us, so ought we to judge our fathers. In order to form a correct estimate of their merits, we ought to place ourselves in their situation, to put out of our minds, for a time, all that knowledge which they, however eager in the pursuit of truth, could not have, and which we, however negligent we may have been, could not help having. It was not merely difficult, but absolutely impossible, for the best and greatest of men, two hundred years ago, to be what a very commonplace person in our days may easily be, and indeed must necessarily be. But it is too much that the benefactors of mankind, after having been reviled by the dunces of their own generation for going too far, should be reviled by the dunces of the next generation for not going far enough.

It seems to me that there's a great deal of truth in both quotes.

 
[Eugene Volokh, 4:27 PM]
University of North Carolina Assigned Summer Reading for Freshmen: Last year, the UNC Eric Muller at IsThatLegal? has thoughts on last year's assigned summer reading (a book about the Koran) and this year's (Barbara Ehrenreich's Nickel and Dimed). I hope he's right that "the discussion leaders will encourage students to take a critical stance toward the book," whatever the book might be.

 
[Eugene Volokh, 2:54 PM]
Iranian protests: The Jerusalem Post reports (thanks to my colleague Jonathan Zasloff for the pointer):

Shrugging off death threats by government paramilitary forces, tens [of] thousands of Iranian students took to the streets Wednesday night, burning at least three government banks, calling for the country's democratization and the death to its extremist leader Ayatollah Ali Khameini.

The demonstrations, banned by the Mullarchy, came on the 4th anniversary of 1999 pro-reform protests which triggered a violent regime crackdown, the death of one student and the arrest of thousands.

Opposition group leaders hailed Wednesday's demonstrations the culmination of month-long anti-government activities as a deadly blow to the repressive regime, saying it edges Iran ever closer to a democratic revolution.

Following and eerily quiet day in Iran, three-sided street battles erupted between pro-reform youth, regime-backed para-military forces, and police outside Tehran University.

As many as 100,000 also gathered around one of Tehran's main city squares Wednesday night chanting pro-democracy slogans and calling for the death of Khameini, an opposition source said. . . .

Beyond the demonstrations themselves, [Safa Haeri, editor of the leading opposition newspaper, the Iranian Press Service] regarded the student's capture of the world media' attention "a watershed event." According to Haeri the demonstrations and the a student letter campaign calling Iran a "political Apartheid state," might compel the U.S. to slap an embargo on Iran for violating basic human rights.

Earlier in the day three student leaders were promptly arrested after they criticized the government in a news conference held to declare that they canceled the day's demonstrations.

Government supported m litants have been attacking students, primarily invading student dormitories and beating students in their sleep, for over a month. The attacks are aimed at discouraging students from their almost nightly demonstrations calling for an end to the repressive regime of Khameini.

With crackdowns coming with increasing fury, students have fought back, for the first time calling for Khameini's death, a crime punishable in Iran with a hefty prison term or even disappearance, at the hands of the paramilitary forces. . . .

The Mullahs told reformist parliament deputies to reign in demonstrators or they "would be mercilessly crushed," according to a Iranian opposition source. . . .

In an open letter sent to U.N. General-Secretary Kofi Anan Iranian student leaders claimed that "a political apartheid has taken all hopes from the Iranian people, because it is denying us self rule and the right of choice, the right to be master of our own destiny, because it has lowered our expectations to the lowest limits possible and also because we are worried to see the experience of our neighbors be repeated here."

In what experts called a remarkable show of mushrooming anti-government sentiment the signatories represented student associations of thirty universities. . . .

 
[Eugene Volokh, 11:08 AM]
Death penalty: Reader Michael Glazer writes:

I have mixed views on the death penalty, but I do believe that if it applies to anything, it should applying to knowingly testifying falsely or knowingly using false testimony with the intent to obtain a conviction in a death penalty case, at least if, as so often seems to be the case in these days of DNA analysis of old prosecutions, the defendant turns out to be innocent. The police and particularly prosecutors seem to me to have a much higher duty of care about these things than the average person. And we're not talking here about one of those split second decisions a cop has to make when someone pulls out something that may be a weapon. Rather, these are well considered strategies, perfect for the deterrent effect the death penalty is said to have.

But what are the odds of such a law being enacted? Or of such a law, or even the ones we currently have on the books being enforced? Unless the court reporters tell a very different story from the newspapers, not very high.

It turns out that the chances of the law being enacted in California are 100% (or, if you interpret the question another way, 0%, because such a law already exists). Cal. Penal Code sec. 128 provides that:

Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death or life imprisonment without possibility of parole. The penalty shall be determined pursuant to Sections 190.3 and 190.4 [the normal death penalty provisions].

The law was enacted in 1872, apparently as

Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death

and was then amended in 1977, pr sumably in response to the U.S. Supreme Court's decisions prohibiting automatic death penalties. I'm unaware of the law ever having been applied, but I'm also unaware of any California incidents where it should have been applied.

 
[Eugene Volokh, 10:54 AM]
"Armed guards to enforce ban on sex in the woods":

A Romanian mayor is planning to hire armed guards to stop residents from having sex when they go for picnics in the woods. . . .

[The mayor] told the Realitatea Romaneasca daily: "They will make sure both that trees are not harmed in any way, but also that people behave themselves while on picnics during the day. . . ."

But passionate couples would, he said, be allowed to have sex in the woods at certain times during the day, adding: "Sex in the woods is only forbidden until dark falls."

(Thanks to Dan Gifford for the pointer.)

 
[Eugene Volokh, 10:45 AM]
Update on Zen Judaism: The source has been identified -- it's David M. Bader's book ZEN JUDAISM: For You, a Little Enlightenment. The book is available on amazon, but the amazon page is also linked to at Bader's site. (Thanks to readers John Mastandrea and Ted Stern for the pointer.)

 
[Eugene Volokh, 10:43 AM]
"The truth is a relative term": A tip -- if you're trying to build or maintain your credibility with people, and you're not a professor in an English department, avoid the phrase "the truth is a relative term." Someone just e-mailed me a message quoting Rep. Darrell Issa, who's said to be interested in California Governor Gray Davis's job, saying exactly that:

"The truth is a relative term" -- Rep. Darrell Issa (R-CA), asked on CNBC if he'd ever been arrested for car theft ("Capital Report").

Not a great political move.

     But at the same time, if you're trying to soundly criticize a candidate (rather than just get a laugh at his expense), avoid quoting such one-liners unless you've carefully checked the context. In context, the statement takes on a somewhat different and more defensible meaning (though it's still highly inartful):

MURRAY: There's a radio ad that's running in the state. Let's listen to it, and then get your response.
(Excerpt from radio ad)
MURRAY: Strong stuff.
Rep. ISSA: Well, sure, but...
MURRAY: I mean, is it true?
Rep. ISSA: No, it isn't true.
MURRAY: You were not arrested for car theft?
Rep. ISSA: The truth is a relative term. Was I arrested? Yes. Was I cleared? Yes. Was it 30 years ago? Yes. The amazing thing, though, is...
MURRAY: The gun charge?
Rep. ISSA: The...
MURRAY: Carrying a gun.
BORGER: The gun at the office.
Rep. ISSA: No. That's completely untrue. . . .

     I haven't heard the radio ad, but I take it that the ad accuses Issa of having been arrested for car theft. There are two messages within that sort of claim: (1) Literally, Issa was arrested for car theft. (2) Implicitly, Issa is therefore a car thief. (I'm pretty sure that Issa's opponents are much more interested in having the public believe message 2 than merely message 1.) Issa was asked if he claim was "true"; his view is that its literal meaning (1) is true, but the message that the ad's creators are trying to spread (in Issa's view, 2) is false. Again, "The truth is a relative term" is a bad way of putting it. But in context, the point that Issa was trying to make -- assuming that he in fact wasn't guilty of car theft -- is more sensible than the isolated phrase suggests.

 
[Eugene Volokh, 10:32 AM]
nd Dusty Baker, together! Dan Drezner, to whose Dusty Baker post I responded yesterday, has a characteristically thoughtful reply:

Like Eugene, I have no clue whether Baker's generalization is factually correct, but my suspicion is that it is not (it certainly depends on the definition of "white"), which was my problem with the comment.

Another concern of mine -- and I'm walking right into Volokh's area of expertise on this -- is the slippery slope question. Eugene distinguishes between generalizations of physical conditions ("blacks perform better in baseball in hot weather") and those of moral character ("blacks are less coachable athletes"). The latter are examples of bad manners; the former are not.

Part of me wants to agree with him on this, because to disagree means applying a moral censure over a wider swath of conversations about race. Conversations about race in this country are circumscribed enough as it is, so I'm very uneasy with suggesting further constraints.

Volokh admits, however, that the phisical/character dichotomy is "a subtle difference and one of degree," and "speculations about morals and ethics involve many more vague lines, subtle differences of degree , and unprovable propositions about human nature than even speculations about law do." Under Volokh's criteria, for example, is it permissible for a coach to make comments distinguishing between the races on a combination of physical and character issues, i.e., "Blacks do worse in pressure situations because their bodies generate excessive amounts of adrenaline under stress relative to whites?" I want the dividing line to be as clear as Eugene, but I'm pessimistic that it really is this distinct.

Dan makes a good point; I think I still disagree with him on this, but it's a subtle disagreement, and I don't think its deta ls are that important.

     I do, though, want to ask the more general question: Assume that we think that Dusty Baker's statement was itself harmless on its own terms (it wasn't rude, and it was either correct or incorrect but not rudely so). Should we publicly excoriate him, or even mildly condemn him and call for an apology on these "slippery slope" grounds"?

     My tentative sense, subject to change on further discussion and reflection, is "no." I do think that there are times that we should oppose otherwise inoffensive government policies for fear that they may make it more likely that others will implement much more dangerous policies in the future. And I also think that there are times when we ourselves should avoid doing something that's itself harmless for fear that it may lead us to do other bad things in the future. (I'm told, for instance, that some radio commentators in an earlier era would try never to swear in private life, because they were concerned that private swearing may become a habit that may inadvertently manifest itself on the air.) Finally, parents and teachers should try to inculcate good habits and prevent bad habits in children, partly for the same slippery slope concerns.

     But I don't think that adults should be publicly condemned, or pressured to apologize, because of these fears. Part of this stems, I think, from the inevitability of vague and subtle distinctions of degree in matters of manners and non-rights-focused ethics -- I generally support bright-line rules in law, to the extent that this is possible, but I think they're less apt in these other areas.

     Another part, I think, stems from my sense of people's rights, again not in the legal sense but in the ethical and manners sense. Urging fellow voters not to enact law A because it might lead to law B doesn't respass on their proper freedom of action. But publicly condemning or socially pressuring people does interefere with their freedom of action (again, we're not talking about the proper rules for legal coercion, but the proper rules for social pressure). And while such condemnation and pressure may still be justified if the people are indeed misbehaving, my sense is that it's not justified when the statements being condemned are fine by themselves, even if tolerating them may risk a "slippery slope."

     We see (or should see) a version of this in science: Assume, as some people suggest, researching biological differences between races or sexes -- and researching them well, in a way that's likely to yield accurate results -- may lead other people to start arguing in favor of immoral race or sex discrimination. I believe that this would not be reason enough to condemn the first set of researchers, because such condemnation would interfere with their academic freedom (again, freedom to investigate without social censure, a freedom that should itself be enforced by ethical, professional, and good manners norms, and not just freedom to investigate without legal punishment, a freedom that should itself be enforced by legal rules).

     Noticing the slippery slope risk may be useful, because it may help forestall the slippage. But the risk shouldn't justify condemning otherwise proper research. The analogy to lay commentary such as Dusty Baker's is imperfect; perhaps, one might argue, scientific research should be more protected against social condemnation because it's more socially valuable, or perhaps there's less risk of a slippery slope because the scientific community may be better able to distinguish sound claims of race/sex difference from unsound than the lay community. Still, I think the analogy is helpful.

     In any case, those are some tentative thoughts on the matter.

 
[Eugene Volokh, 9:28 AM]
One of my favorite items about law: I was just reminded of this (I include it as an epigraph in my First Amendment textbook, and I had the file open just now), and thought it was worth blogging. It's from a lecture to Harvard University undergraduates, delivered on Feb. 17, 1886 by then Oliver Wendell Holmes, Jr., who was then on the Massachusetts Supreme Judicial Court but eventually served with great distinction on the U.S. Supreme Court:

And now, perhaps, I ought to have done. But I know that some spirit of fire will feel that his main question has not been answered.

He will ask, What is all this to my soul? . . . What have you said to show that I can reach my own spiritual possibilities through such a door as this? How can the laborious study of a dry and technical system, the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests, make out a life?

Gentlemen, I admit at once that these questions are not futile, that they may prove unanswerable, that they have often seemed to me unanswerable. And yet I believe there is an answer. They are the same questions that meet you in any form of practical life. If a man has the soul of Sancho Panza, the world to him will be Sancho Panza’s world; but if he has the soul of an idealist, he will make -- I do not say find -- his world ideal.

Of course, the law is not the place for the artist or poet. The law is the calling of thinkers. But to those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say -- and I say no longer with any doubt -- that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattaina le.

 
[Eugene Volokh, 7:41 AM]
Dusty Baker and Mississippi Secession Declaration: Several people have linked two of my posts from yesterday, and pointed out that Dusty Baker's claim --

"Personally, I like to play in the heat," he said. "It's easier for me. It's easier for most Latin guys and easier for most minority people.

"You don't find too many brothers in New Hampshire and Maine and the Upper Peninsula of Michigan, right? We were brought over here for the heat, right? Isn't that history? Weren't we brought over because we could take the heat?

"Your skin color is more conducive to the heat than it is to the light-skinned people, right? You don't see brothers running around burnt and stuff . . . running around with white stuff on their ears and nose and stuff."

echoes the claim of the Mississippi Secession Declaration:

"Our position is thoroughly identified with the institution of slavery -- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin. . . ."

I suppose that's right, but I don't see much significance in that. The problem with the Mississippi Secession Declaration isn't its assertion about the general differences between black and white heat / sunlight sensitivity -- it's the Declaration's use of the differences to justify slavery. Even a stopped clock is r ght twice a day; perhaps the Mississippians were factually correct, setting aside their hyperbole, about the heat question (I've gotten some messages both ways on that factual issue, incidentally, but nothing especially probative). They were certainly factually correct, again setting aside the hyperbole, if "exposure to the tropical sun" means resistance to sunburn. Doesn't make them morally right, or Dusty Baker wrong.

 
[Eugene Volokh, 7:33 AM]
Zen Judaism: Author unknown. (UPDATE: The source has been identified -- it's David M. Bader's book ZEN JUDAISM: For You, a Little Enlightenment. The book is available on amazon, but the amazon page is also linked to at Bader's site. Thanks to readers John Mastandrea and Ted Stern for the pointer.)

Let your mind be as a floating cloud. Let your stillness be as the wooded glen. And sit up straight. You'll never meet the Buddha with posture like that.

There is no escaping karma. In a previous life, you never called, you never wrote, you never visited. And whose fault was that?

The Tao has no expectations. The Tao demands nothing of others. The Tao does not speak. The Tao does not blame. The Tao does not take sides. The Tao is not Jewish.

Drink tea and nourish life. With the first sip, joy. With the second, satisfaction. With the third, Danish.

The Buddha taught that one should practice loving kindness to all sentient beings. Still, would it kill you to find a nice sentient being who happens to be Jewish?

Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkes.

 
[Eugene Volokh, 6:31 AM]
Racial double standards and group guilt: A reader writes:

[There is an unspoken] structure of human etiquette that means that white people have to be much more careful about what they say about other races than non-whites (what ever happened to people of color? That was much easier).

I think the reason for this is history. There is a huge history of white oppresion. A white person talking about the superior ability of black people to work in the sun just brings up a lot of bad memories. In essence -- and I'm not saying that it's fair -- white people in this country have, as a race, commited an offence against just about every other race, and now white people, as a race, having admitted that they were wrong feel the pressure to be extra sensitive around people of other colors. It's some kind of built-in rule of etiquette. It's like if you unfairly blew up at your wife, once you apologized you are going to be extra careful about blowing up again. Similarly, Germans can't really say much negative about Jews. It just doesn't feel right.

     I agree that the reader's point in some measure does describe social reality in America today; and I think I even understand the emotions behind it. But I think that this approach does far more harm than good, and needs to be thoroughly abandoned. This is true for two reasons.

     First, racial double standards in what people may say are very costly. (They may be slightly less costly as to humor, where there might be something to the notion that people are given more slack when they make jokes about their own group; let me set that aside for now, though I agree that there are serious costs to such double standards there, too.) They are costly because they preclude honest discussion of serious issues, which go far beyond heat tolerance -- issues related to race relations, crime, welfare, social security, and a vast range of other ause it's rude," that spreads to many other Xs.

     Second, and most important, I'm white, and I haven't admitted that I was wrong, and I have no intention of doing so. I haven't admitted that I was wrong for owning slaves; I haven't admitted that I was wrong for supporting Jim Crow; I haven't admitted that I was wrong for not hiring blacks. I haven't admitted it because I've never done it, and until I personally do it, I won't take any blame for it.

     It's true that some other people that happened to share a skin color with me have done so. What's my moral responsibility for this? Precisely the same moral responsibility as the moral responsibility of a law-abiding black man for the crimes committed by blacks. Precisely the same moral responsibility as my moral responsibility, as a Jew, for having caused or allowed the death of Jesus (hypothesize for a moment that Jesus's death was indeed caused or allowed by the Je s). Precisely the same moral responsibility as the moral responsibility of Japanese-Americans -- or for that matter, of Japanese who were two years old at the time of Pearl Harbor -- for the Rape of Nanking or any other Japanese atrocities. Which, of course, is to say absolutely zero.

     The concept of racial or ethnic guilt, by which "[white/black/Japanese/Jewish] people as a race" must "admit[] that they were wrong" for the misconduct of people who happen to share the same skin color or ancestry, is both a moral error and a practical disaster. It's long past time that it died out; but while it endures, it seems to me that those tarred with alleged racial guilt must vociferously reject the charge, and point out the charge's deep moral bankruptcy.

     At least some other justifications for race-consciousness are somewhat more logical -- for instance, I understand the continuing suspicion on the part of many blacks that a disproportionate number of whites are racists, because there are indeed many whites who are racist. I don't think we should organize our society around this suspicion, just as we shouldn't organize it around the continuing suspicion on the part of many whites that a disproportionate number of blacks are criminals, or the continuing suspicion on the part of various other ethnic groups that still other ethnic groups retain their traditional hatreds. But the notion of group guilt -- of people being responsible for others simply because they share the same skin color, which is what I saw in the reader's message -- is simply a mistake.

     Finally, as to the Germans, I can't stand it when people wave the bloody shirt at today's Germans because of the atrocities perpetrated by other Germans 60 years ago, Germans who are now mostly dead. I'm told that there's an unfortunate amount of anti-Semitism in Germany today, and German anti-Semites should be punished. But Germans should be just as fre to express views about Israel, Judaism, or Jews as anyone else. I suspect that telling Germans that they can't do so will only strengthen any modern German anti-Semitic movement. But independent of the pragmatic considerations, a German today has the very same right to discuss the very same issues as anyone else, and the sins of his grandfather (or of his neighbor's grandfather) have no moral effect on that.

 
[Eugene Volokh, 11:40 PM]
The Non-Libertarian Antebellum South: Clayton Cramer has some interesting points on the subject, points that go beyond just slavery. This, by the way, was as I understand it a constant refrain of anti-slavery forces: To defend its system of repressing blacks, the Slavocracy had to also end up repressing whites. I have read about this specifically in the context of suppression of free speech; Michael Kent Curtis, a law professor at Wake Forest, has written some excellent stuff on the subject in recent years, including a book, "The People's Darling Privilege" (the title contains the quotes), on free speech controversies in the antebellum era and during the Civil War. But Clayton points out this was true as to other rights as well. Far less significant, in my view (and, I suspect, in Clayton's), than the nightmarish repression of the liberty of blacks -- but worth keeping in mind in any event.

 
[Eugene Volokh, 11:03 PM]
A bit more about the Dusty Baker matter: A comment by reader JT on Wizbang! reminded me of a twist on the manners issue involved here:

Dusty meant no harm by his comments, but if Joe Torre off-handedly remarked about white players being "more coachable", or playing "smarter baseball", I am certain the outcry from the various ethinic communties offended by such opinion would generate much more substantial -- and cause for removal or at least boycott -- in many individuals perceptions.

     Actually, I think there is an important difference here, though a subtle difference and one of degree, as many questions of manners are. As I've mentioned below, Dusty Baker's comments may be accurate, or they might not be; and they're also generalizations that may have only a weak correlation with people's actual attributes. That's not necessarily a problem: People sometimes make mistakes, and such mistakes, even about racial physical attributes, aren't cause for outrage (unless they seem so silly that they suggest that the person has a deeply misguided view of racial differences). And generalizations aren't necessarily that troublesome, if they don't form the basis for illegal activity. Blacks are generally less susceptible to sunburn and skin cancer than whites; Ashkenazi Jews are more susceptible to certain genetic diseases than other groups are; and so on. That's the way things are, and there should be no taboo against saying so.

     Things are properly different, as a matter of good manners, when the allegation is tied to something that people generally see as a character defect. Lack of intelligence falls into that category (maybe it shouldn't, but it generally does); so does uncoachability. When we suggest that people have such attributes, we are properly held to a higher standard of proof. We can see that even i we set aside race: "I'm pretty sure my acquaintance Joe Schmoe might be prone to heat exhaustion" is something that we can comfortably say on very little evidence. "I'm pretty sure my acquaintance Joe Schmoe isn't smart" is something that we would generally pause a little longer before saying -- especially if we're saying it in public.

     Moreover, when we suggest that people as a group have such attributes, those members who lack those attributes understandably bristle -- the generalization is felt as more of a personal attack. Again, I think we see this even outside the context of race. Generalizations about groups (fraternity members, people who engage in certain occupations, residents of a particular area) are, especially if they're accurate, quite acceptable if they relate to a relatively morally neutral property. But if they relate to a morally troublesome trait (stupidity, dishonesty, and so on), they cause more bristling, even if they are statistically well-supported, though not as much as when they're made about groups that have a more self-conscious identity (such as racial, ethnic, or religious groups).

     Now I might well have missed the mark in some of this -- as I've mentioned before, speculations about morals and ethics involve many more vague lines, subtle differences of degree , and unprovable propositions about human nature than even speculations about law do. But my sense is that we would and should have a different reaction if Baker's generalizations were about traits that seemed more like character defects and less like physical conditions.

 
[Eugene Volokh, 6:21 PM]
s sociologist who served on the faculty at the University of California-Berkeley for 30 years, called the comments "unfortunate and not totally informed" but said they weren't malicious....

"If a white manager made those statements, there's no question he would find himself in a group that includes Al Campanis and Jimmy 'The Greek' Snyder," Edwards said.

Baker, one of four African-Americans among seven minority managers in the major leagues, agrees. "But as a b ack manager, I can say things about blacks that a white manager can't say, and whites can say things about whites that blacks can't say."

Now, the problem I have with this is that Baker is not saying things only about blacks. He's making a comparative statement about different races -- blacks and Latinos are better at tolerating the heat than whites. There is no difference between the content of what Baker said and the content of what CBS Sports analyst Jimmy "The Greek" Snyder said fifteen years ago when he argued that blacks were better athletes because of the way they were bred as slaves. Snyder recanted; Baker is standing firm.

Should Baker apologize for making such uninformed and stereotypical remarks? Yes, he should.     So here's my first question: Is Baker correct that blacks and Hispanics are less bothered by the heat than whites are? I have absolutely no knowledge on the matter, but I'm not willing to just dismiss this out of hand as inaccurate. Blacks and dark-skinned Hispanics are obviously physically different (on average, of course) from whites in some ways; one obvious way -- pigmentation, and the resulting decrease in the risk of sunburn and skin cancer -- does have to do with survival and comfort in the places where their ancestors had lived for much of the ancestors' history. I have heard it said that Eskimos tend to have physical characteristics that make it easier for them to stand the cold. What are the facts here? If someone has some expertise on the subject, please let me know.

     If Baker is correct, then it seems to me hard to fault him for his comments. They may be "stereotypical" in that they deal with generalities that aren't necessarily correct for everyone; but they don't sound mean-spirited or insulting, and Baker gave no indication that he was going to act illegally based on those stereotypes (e.g., fire all white players and replace them with black ones).

  & bsp;  Now I realize that white speakers might have been pilloried for such comments -- but I think that would be too bad, if the comments are said in this sort of context. And the possibility that others may have been unfairly attacked for such remarks doesn't make it fair to attack Baker. (I don't much like his defense that he's black and should be allowed to say it about other blacks; but I don't think he needs this defense.)

     Can someone fill me in on the facts that I mention earlier in the post? Or are there some other issues that I'm missing here? I reserve the right to change my views if Baker's factual claim ends up being wrong (though even if it is wrong, it seems like not an awful honest mistake for him to have made), or if someone can persuade me that his claim is improper even if it's factually accurate. At this point, though, I don't really see why exactly he needs to apologize.

 
[Eugene Volokh, 2:46 PM]
Slavocracy: A reader writes:

[In your] post on Buchanan and slavery[,] you refer to the south as a "Slavocracy." Wouldn't this mean a land ruled by slaves, just as a oligarchy is a land ruled by the few and a democracy is a land ruled by the people?

One would think so, just as one would think that a womanizer is a surgeon who performs male-to-female sex-change operations. But the life of the language has not been logic, but experience (apologies to Oliver Wendell Holmes, to forestall further plagiarism allegations), and the term "slavocracy" has meant more or less "persons or interest formerly representing slavery politically, or wielding political power for the preservation or advancement of slavery" since (I believe) the mid-1800s.

 
[Eugene Volokh, 2:36 PM]
Plagiarism Scandal Rocks the Volokh Conspiracy! My friend, colleague, and former criminal procedure teacher David Dolinko gently pointed out today that about a year and a half before I printed my Lost Maxims of Equity, he had circulated to the UCLA Law faculty distribution list the following message, which I reproduce alongside mine:

David Dolinko's message

My Lost Maxims of Equity

(1) Equity abhors a noodge. (2) He who comes into equity must come with clean underwear. (3) Money talks. (4) Equity delights in doing justice, but loves a good joke. (5) Equity pierces through substance to form. (6) Equity builds strong bodies twelve ways. (7) The square of the hypotenuse is equal to the sum of the squares of the other sides. (8) He who seeks equity is asking for trouble. (9) Equity makes the world go round. (10) Where there are equal equities, the baby should be cut in half.

Equity abhors a nudnik. Equity delights in a good practical joke. He who seeks equity must do so with full pockets. Equity is not for the squeamish. Equity, schmequity. Equity can be grumpy before its first cup of coffee. Equity is crunchy on the outside, soft and chewy on the inside. Equity is a mean drunk. Equity, like all of us, prefers the rich and good-looking.

I had completely forgotten about David's list [Yeah, right, tell that to George Harrison-ed. Now you're making me plagiarize Mickey Kaus!], but on reflection I realize that I must have been subconsciously influenced by it -- my first two items sure do eem pretty similar to David's #2 and #4. So I wanted to apologize, give David full credit, and make his own list of maxims available for your lawyerly delectation.

 
[Eugene Volokh, 2:14 PM]
Why is it OK for MSNBC to drop Savage? Some people suggest that my endorsement of MSNBC's firing Savage is inconsistent with my questioning (in the wake of the Dixie Chicks controversy, though the question is much broader than that) the propriety -- not the legality, but the ethical propriety -- of some such "private speech restrictions." See this post and some others that came later that week, and which are thus above it on the archives page.

     As I mentioned in the earlier posts, I think the ethical question is much more complex than the legal question. I'm not sure what the right answer is; I suspect, though, that it requires distinctions that we wouldn't want courts to draw but that we must ourselves draw in our daily lives. Thus, as I suggested,

If we hear that a friend refuses to have dinner with people who are Nazis or Communists, we'd probably think he's acting properly; we might think the same if he refuses to do business with them, or perhaps even if he refuses to hire them (though I suspect that some people may have a different view as to the latter). If we hear that he refuses to have dinner with people who are Republicans, or who were for the war -- or a different friend refuses to have dinner with Democrats or anti-war people -- we'd probably think he's intolerant, and we'd think that even more if he refused to do business with such people or hire them. We might conclude that he has the legal right to act this way, but we'd think that this isn't how open-minded, decent people should generally act. And we'd shudder at the thought of a society where more people acted this way, partly because life in this society would be too combative, partly because people in this society would largely lose the benefits that come from hearing the views of friends who disagree with them, and partly because such a society would pre them seem to be so rude and vitriolic that MSNBC was right to stop providing him a forum. Look, the guy person lly attacked a caller and wished that he would die of AIDS. This isn't just a calm and rational -- or even a conventionally impassioned -- criticism of the pro-gay-rights movement. This is speech that is far outside halfway decent manners and morals.

     Naturally, this is a matter of degree, and I don't think courts should draw such distinctions for legal purposes. But our own ethical judgments about whom we associate with, and whom we allow to use our property, must necessarily draw such distinctions. Democrats and Republicans yes; Communists and Nazis no; people who support or oppose gay rights yes; people who do so by telling their opponents that they wish the opponents would die a painful death no. Again, I suspect that this influences how we decide on our dinner guest lists; it would certainly influence how I decide which panelists to have at a conference that I'm putting together; and I think it should go into how MSNBC influences who should use its valuable property. And that's why I think that firing Michael Savage was a very easy ethical call, while organizing a boycott of the Dixie Chicks was a tougher ethical call (though it may well be that on balance such boycott organizing was still ethically proper.)

 
[Eugene Volokh, 10:36 AM]
Reasonable arguments and unreasonable ones about the South and the North: The author of Southern Appeal blogs his disagreement with some aspects of my Buchanan post, and e-mails me the following:

I did, however, find your characterization of the Civil War South as evil -- as opposed to simply the institution of slavery, for which both North and South were responsible -- unfortunate. That may not have been your intent, but that how I interpreted the post. In this regard, I have responded to your post (in a manner which I hope you will consider to be both civil and respectful) and asked you (and others) tone down the South bashing. In making this request, I am not suggesting that the South was perfect (far from it). Nor I am in any way attempting to justify the unquestionably evil and horrendous institution of slavery. What I am asking is that non-Southern conservatives of your stature and intellect not lend your prestige to simplistic historical views (i.e., North good, South evil). History is more complicated than that, and the South's struggle for independence was clearly about more than just slavery. . . .

     I don't think I was characterizing the Civil War South as evil, though it was fighting in large part to maintain a tremendous evil. My point was simple: Buchanan was faulting "Lincoln's War" against "free and independent states," and praising a bygone era of the "sovereignty [of] the people" and a "constitutional republic." And he said not a word about the fact that the Southern states weren't "free" in the nonredundant sense of the word (i.e., more than just "independent of other states"). Not a word about the fact that the Southern states didn't really protect the sovereignty of the people, but ra her a sovereignty of white people, which included the sovereign power to oppress black people. Nor any words about the fact that the Southern states continued to try to exercise this power after the Civil War, which actually helped lead, at least for a while, to the increase in "Congressional supremacy."

     What does one make of this silence? The logical implication, it seems to me, is that the unfreedom of the slaves, and their inability to participate in the sovereignty, just don't matter in Buchanan's scheme of things. Either Buchanan doesn't even think about them -- the oppression of the Southern whites is present in his mind, but the oppression of the Southern blacks aren't. Or he thinks about them, but thinks that the oppression of the Southern whites was so clearly greater than the oppression of the Southern blacks that the latter isn't even worth mentioning. Or he recognizes that the war brought great increases in freedom as well as, in his view, great diminution in freedom, but is just not willing to mention the latter because they don't fit his argument.

     Whatever is in his mind, his argument works only by utterly ignoring -- not acknowledging, confronting, and balancing, but utterly ignoring -- slavery. That is not a respectable or respectworthy argument. And conservatives must forcefully condemn it, or else be plausibly accused of themselves caring more about oppression of the mostly white majority (the chief examples being the taking down of the Ten Commandments, the legalization of gay marriage, or the constitutional protection of flagburning, which are the main focuses of Buchanan's criticism) than about oppression of blacks.

     I don't object to criticisms of Lincoln's actions during the war -- there was a good deal to criticize. I don't object to arguments that the Constitution should have been interpreted as allowing secession; I haven't studied this, but they migh long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abol tion, or a dissolution of the Union, whose principles had been subverted to work out our ruin. . . ."

The Mississippi leaders' words, not mine. I'm just saying that people should remember this when they cast the South-North conflict as Southern freedom and independence against Northern oppression.

 
[Eugene Volokh, 3:31 PM]
Interesting piece on recordings of poets reading poetry, in today's Slate.

 
[Eugene Volokh, 3:27 PM]
Petitions and counter-petitions: Craig Holman of Public Citizen posted the following to a discussion list that I'm on, and agreed to let me blog it. I'm not expert enough on the subject to be able to confirm or deny this point, but it seemed worth passing along:

[Another discussion list member] cites an article in today's Los Angeles Times that discusses the paid petition circulation process, especially as it relates to the current recall drive in California. The technique of hiring petition circulators to collect signatures for a "counter-petition" is highlighted as a means "just to serve a public relations purpose."

Public relations is not the primary purpose of hiring signature-gatherers for an "anti-petition drive" -- the purpose is to deplete the fixed pool of available circulators and to raise the cost of petition circulation.

This strategy to stifle a petitioon drive by hiring signature-gatherers to collect signatures for a meaningless counter-petition has been done twice before to my knowledge.

Below is a footnote I wrote on the strategy for the 1992 book, Democracy by Initiative:

"Competition for paid petition circulators has sometimes reached cutthroat proportions. Only a handful of professional petition circulation firms serve the California market. Given the need to employ professional circulation services to meet the state's high signature threshold, a new strategy has evolved to influence the state's political agenda. The strategy is simple: pay petition circulators not to collect signatures for an initiative proposal.

"This strategy was used unsuccessfully by the tobacco industry in its effort to prevent a tobacco tax initiative from qualifying for the 1988 general election ballot (Proposition 99). Opponents of the tobacco tax enlisted the professional services of Clint Reilly Associates (a campaign management firm) and American Petition Consultants (a signature-gathering firm) prior to the measure even qualifying for the ballot. At a cost of $112,139, plus an additional $38,250 in various professional expenses, American Petition Consultants hired an army of solicitors to collect signatures of those opposed to a possible tobacco tax measure. The petitions had no legal standing; they did not offer an initiative proposal and they were not designed to qualify an issue to the ballot. The signatures clearly were not used for fundraising purposes either; there was only one contribution to the opposition campaign given by an individual (the campaign was almost entirely funded by tobacco interests).

"What was accomplished by collecting signatures in opposition to the proposed tobacco tax was a depletion of signature gatherers available to help qualify the tax to the ballot. All signature-gathering firms tend to draw solicitors from the same limited supply of labor. Kimball Petition Management was already employing petition solicitors on behalf of five initiative proposals, and American Petition Consultants was attempting to qualify an additional five proposals for the state ballot. Employed by the tobacco industry to collect signatures against the proposed tobacco tax, American Petition Consultants was no longer available for hire by supporters of the tax.

"Supporters of the tobacco tax turned to the new firm of Masterton & Wright for assistance in collecting signatures. That firm had considerable difficulty in finding enough petition circulators for the tobacco tax initiative, partly because of the firm's inexperience and partly because of the strained market. Competition for petition circulators among the many initiative proposals made their services more expensive. Both Kimball Petition Management and American Petition Consultants paid their workers a higher rate than Masterton could afford, drawing solicitors away from the tobacco measure. To complicate matters further, many petition circulators were under the distinct impression that they would be blacklisted fr m work with American Petition Consultants if they solicited signatures for Proposition 99. Nevertheless, Masterton & Wright was able to muster an adequate petition drive that took the entire 150-day circulation period to qualify the measure to the state ballot.

"Attempting to 'buy up' the signature-gathering labor pool in order to prevent a measure from reaching the ballot has been a strategy used in local elections as well. The city of Los Angeles witnessed an initiative battle between a coalition of environmentalists and Occidental Petroleum Corporation over oil drilling on the coast of Pacific Palisades. A proposal by environmentalists to ban any oil drilling (Proposition O) on the coast was countered by an oil industry proposal to allow drilling but with certain restrictions and safeguards (Proposition P). Occidental Petroleum enlisted the signature-gathering services of both Kimball Petition Management and American Petition Consultants with the clear understanding that neither firm would assist the qualification efforts of the anti-oil drilling initiative. Unable to engineer a sufficient paid circulation drive, proponents of Proposition O had to resort to the expensive method of direct mail petition circulation -- a very uncommon means of signature gathering at the local level."

 
[Eugene Volokh, 2:38 PM]
"The decision was an easy one": Foxnews.com reports on MSNBC's firing of Michael Savage:

"His comments were extremely inappropriate and the decision was an easy one," MSNBC spokesman Jeremy Gaines said. . . .

Savage was taking viewer phone calls about airline horror stories, and a male caller began talking about smoking in the bathroom.

"Half an hour into the flight, I need to suggest that Don and Mike take your ..." the caller said, before he was cut off and his words became unintelligible.

"So you're one of those sodomists. Are you a sodomite?" Savage asked.

The caller replied: "Yes, I am."

"Oh, you're one of the sodomites," Savage said. "You should only get AIDS and die, you pig. How's that? Why don't you see if you can sue me, you pig. You got nothing better than to put me down, you piece of garbage. You have got nothing to do today, go eat a sausage and choke on it."

He asked for another phone caller who "didn't have a nice night in the bathhouse who's angry at me today."

These bums "mean nothing to me," he said. . . .

I haven't listened to Savage, but from what I hear this sort of trash was quite predictable. It's too bad MSNBC decided that it wanted to carry his show -- but better learn that lesson late than not at all. And, no, this isn't "censorship": Television networks, newspapers, magazines, and other privately owned communications media are fully entitled (both legally and morally) to refuse to carry this sort of vile abuse. I'm glad that MSNBC decided not to let Savage use its property any longer.

 
[Eugene Volokh, 1:49 PM]
Charlotte police react to sexual autonomy decision: Duke law professor Chris Schroeder passed this along to a discussion list that I run for constitutional law professors, and agreed to let me blog it. If I recall correctly, North Carolina is one of the few states that has indeed recently been prosecuting consensual sodomy:

The following has just come to my attention. It is the guts of a memo just issued to the police force of Charlotte, NC, regarding the implications of Lawrence v. Texas for the enforcement of North Carolina's crimes against nature statute. The statute itself is delightfully brief: If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

Here is the excerpt from the memo issued by police headquarters to the police officers in Charlotte:

Lawrence] draws into question the constitutionality of N.C.G.S. §14-177, Crime Against Nature. Clearly, the holding in Lawrence prohibits charging two consenting adults who are engaging in a crime against nature within a private residence with the above charge. However, the case did not directly address the solicitation of a crime against nature (SOLCAN).

For the time being and until a court tells us otherwise, we are of the following opinion: 1.) a SOLCAN charge wherein a subject offers to commit a crime against nature for money in either a private or public place is a valid charge; 2.) a SOLCAN charge wherein the subject offers to commit a crime against nature for no money in public or at an unspecified location is a valid charge; and 3.) a SOLCAN charge wherein the subject offers to commit a crime against nature for no money or consideration at a private place is no longer a valid charge.

We have spoken with the D.A.’s office who has agreed to continue to accept these charges; however, in the event a judge dismisses these cases based on a different interpretation, we may have to disco tinue filing some or all SOLCAN charges.

Officers should still charge individuals with felony crime against nature if persons are observed engaging in anal or oral sex in a public place, such as a park or a restroom.

 
[Eugene Volokh, 1:26 PM]
Ebay and law enforcement: American Digest complains about ebay's policy of giving information to the police without a court order:

Ebay's Number One Rent-A-Cop Joe Sullivan put police around the country on notice that Ebay won't ask them for anything as inconvenient as a court order when it comes to getting your personal information from the online leviathan. As reported in The Nation's recent article Buyer Beware, Sullivan announced:

If you are a law-enforcement officer, all you have to do is send us a fax with a request for information, and ask about the person behind the seller's identity number, and we will provide you with his name, address, sales history and other details -- all without having to produce a court order.

. . .

The post obviously disapproves of Ebay on this; but I wonder why exactly that should be so. If the police go to a store and say "Can you tell us who bought this item? We're investigating a crime, and this might be relevant," I imagine many store owners will say "Sure, officer -- we like to help the police." I think that's traditionally been seen as part of a citizen's moral duty: Not just to give the minimal legally required help to the police, with the maximal legally permissible obstruction, but to help wholeheartedly, at least until he sees that there's some serious abuse taking place.

     Sure, we can all imagine situations where the merchant should resist, for instance if the police are enforcing some law that is clearly immoral, or if the merchant knows that they're using improper tactics, or if the person being asked to help has a special duty of confidentiality to his clients -- for instance, if he's a lawyer or a psychiatrist. One can even extend the latter category to service providers, who may sometimes facilitate anonymous political advocacy, something that we might see as valuable enough that we should expect service providers to keep the subscribers' information as confidential as possible. (The Nation story points to the FBI trying to track down information on the purchase of some books by a Pakistani scientist; some argue that purchases of books should also be seen as confidential, but even if that's so -- and I'm not sure it is -- I suspect that this involves a small fraction of Ebay-police interactions.)

     But in most situations where Ebay is asked to provide information -- which I suspect involve alleged fraud, theft, forgery, or other criminality related to publicly conducted business transactions -- the laws are likely pretty just, and there is and should be no expectation of confidentiality on Ebay's part. Under these circumstances, a policy of helping the police enforce laws (mostly laws aimed at preventing fraud and protecting property rights) should, I think, be thought of as public-spiritedness.

     Now if you think that the police are evil, most laws that they enforce (and are likely to enforce against Ebay) are evil, or both, then I can see why you should protest Ebay -- just as you should protest any witness who willingly helps the police track down a suspect in a theft, fraud, or other case. But if you think (as, I suspect, most people think, and as I think) that it's pretty important that the laws be enforced, and that we're generally better off if the police get help from citizens rather than getting constant obstruction from citizens, then you should see such criticisms of Ebay as pretty misguided.

 
[Eugene Volokh, 12:59 PM]
Washington Times misunderstands the Court's Nike decision: Reader Skip Oliva e-mailed me about a pretty wrongheaded Washington Times editorial:

Recent misjudgments in favor of affirmative action and sodomy overshadowed one issue on which the Supreme Court came down sensibly. Citing procedural problems, the court declined to hear a case brought against Nike by anti-corporate crusader Marc Kasky, who argued that conditions in Southeast Asian factories do not live up to Nike's propaganda. The activist was fishing for a ruling to state that Nike's corporate advertisements qualify as commercial speech rather than political or social commentary. Because the court has not applied strict First Amendment protection to commercial speech, Mr. Kasky was hoping Nike could be sued for false advertising and even subjected to injunctions against continued advertising. But it is Mr. Kasky -- not Nike -- who is full of nonsense.

The editorial goes on to condemn Kasky's substantive criticisms of Nike's practices, a matter that I'll set aside. But I don't get the editorial's praise of the Supreme Court's decision.

     Kasky got his "ruling" that Nike's defense of its practices "qualif[ies] as commercial speech rather than political or social commentary" -- he got it from the California Supreme Court, and now he's allowed to "sue[] for false advertising." Nike was asking the U.S. Supreme Court to reverse the California Supreme Court's decision; the U.S. Supreme Court refused, on procedural grounds. As I argue in this Wall Street Journal piece, there's reason to think that the U.S. Supreme Court will eventually decide in favor of business speakers on this question, and might even rehear this very case later in the process if Nike loses at trial and appeals again. But from Nike's perspective, the Court's refusal to consider the case is basically a loss, not a victory.

     (Also, if the Times is really on Nike's side, I don't see why they characterize Nike's speech as "commercial advertising" -- that's another way of saying that Nike's statements are commercial speech. Nike's position is that their statements, which are contained in letters to the editor, press releases, and [most controversially] letters to institutional buyers, are advocacy on economic policy questions, not commercial advertising.)

 
[Eugene Volokh, 12:47 PM]
Horse quartet: OK, I don't know why this is amusing, but it is. Click on any combination. (Thanks to fellow lawprof Myron Moskovitz for the pointer.)

 
[Eugene Volokh, 10:33 AM]
ding this beyond a reasonable doubt? Finally, is it really right to outlaw behavior that millions of people perfectly properly engage in, and that in nearly all cases is entirely noncoercive, just to make it easier to prosecute the small fraction of incidents that are coercive?" Well, yes; outlawing consensual genital sex to make i easier to get rape convictions is a very bad idea. Why doesn't the same go for outlawing consensual oral or anal sex?

     Incidentally, the same argument is commonly made for rigid statutory rape laws (e.g., prohibitions on all sex with girls under the age of 18, which often apply even when the "rapist" is under 18 himself): Such laws, the claim goes, are rarely enforced when the sex is really consensual, but are a convenient backup to rape laws when the prosecutor thinks the sex wasn't consensual, but concludes that this wouldn't be easy to prove to a jury. This argument seems to me weak there, too, for the reasons I mention above -- but at least there are other arguments for such rigid statutory rape laws that make them more sound than laws that ban consensual adult sex. (I think that on balance such rigid statutory rape laws are still unsound, and should be replaced with rules that are more focused on the difference in ages; though such age-difference tests have their own problems, they are less constraining and less unrealistic than the rigid no-sex-with-under-18-year-olds laws.)

 
[Eugene Volokh, 10:09 AM]
Pat Buchanan's Omissions: Here's the meat of Pat Buchanan's column on the Supreme Court, Congress, and the states:

[W]e no longer live in a constitutional republic.

In a brief brilliant essay, "The 'Happy Convention,'" William Quirk, author of "Judicial Dictatorship," describes how Americans now live under a "convention" that is a fraud upon the Constitution our forefathers crafted.

Our original Constitution divided the powers of the government and put restrictions on those powers, in a Bill of Rights, and in the retention by the states of much of their sovereign power.

Lincoln's War overthrew that Constitution. When 11 "free and independent states" sought peacefully to depart from the Union, they were dragged back in, by invasion and war. By 1884, Woodrow Wilson was writing in his "Congressional Government," "we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession." . . . "[T]he actual form of our present government is . . . a scheme of Congressional supremacy."

After World War II, that second Constitution gave way to a third, an unwritten, "Happy Convention," in Quirk's phrase. By the terms of that convention, Congress cedes its power over war, peace and foreign policy to the president, and its power to decide issues of race, gender, religion, culture and morality to the Supreme Court.

Why did Congress cede its powers? For the most basic of reasons: survival. Decisions on war, peace, race, religion, morality, culture and gender, divide us deeply and emotionally. These are issues where one vote could cost scores of congressmen their seats. Why not turn them over to justices, appointed for life, who never face the voters and who relish remaking our society according to their own vision and beliefs? . . .

Today, we read that George W. Bush and his advisers are terrified of having gay marriage become an issue in 2004, as they will have to oppose such marriages as immoral, in order to secure their political base, while the Big Media lashes them as bigots. . . .

The Bushites are delighted to have questions of race, religion and morality settled by courts. For when courts decide, politicians can throw up their hands and say, "We may not like it, but there is nothing we can do. The court has the final say."

But, as Quirk argues, the court does not, in the true Constitution, have the final say. As Jefferson refused to enforce the Alien and Sedition Acts, President Bush could refuse to take down the Ten Commandments from that Alabama court house, should the Supreme Court order him to do so.

In our written Constitution, the doctrine of judicial supremacy does not exist. Congress has the power to abolish all federal courts except the Supreme Court and to limit that court's jurisdiction to "cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party." . . .

If Congress will not confront the Court, the people should confront the Congress. For our national sovereignty rests with the people, who took it away from King George and Parliament and lodged it in a written Constitution, not in this insiders deal by which we are ruled today.

Now Buchanan actually has two reasonable points here. The first is the rather commonplace observation -- but one that's to a large extent accurate, and worth making -- that indeed our constitution, in the sense of our actual governmental structure, is quite different from the one the Framing generation thought they were putting into place, partly because of constitutional amendment but partly because of some pretty creative reinterpretation by all three branches of the federal government. This is true both as to Congressional power, and as to the details of some rights provision, q ite likely including the Establishment Clause and the various provisions that may be said to secure unenumerated rights (the two items about which Buchanan objects specifically).

     The second observation is less commonly mentioned, but still probably true in considerable part: Many democratically elected and accountable legislators are often happy to leave certain decisions in the hands of democratically unaccountable judges, because this diminishes political risk for the legislators. Some Republican legislators, for instance, may be happy that abortion bans have been rendered unconstitutional, because this lets them appeal to pro-life voters ("I oppose abortion, and would ban it if I could") and at the same time to pro-choice voters ("I support all these other things that you support, and you don't have to worry about our disagreement on abortion, since the courts have taken that issue off the table"). Other Republicans, of course, are deeply unhappy about those court decisions, because they sincerely believe that abortion is murder, or strongly feel that the issue should be left to the voters' elected representatives. But quite a few may take the view that Buchanan describes, and that I describe earlier in this paragraph; so a coalition of people whose positions win in court (e.g., pro-choice legislators) and people whose positions lose, but who still gain politically (e.g., some legislators who don't want to want support both from pro-life and pro-choice voters) can help keep the courts powerful. (Mark Graber, a political science professor at the University of Maryland, has written about this general point.)

     But these two good points are overshadowed, I think, by two huge problems. The first is, of course, the casual sneer at Lincoln and defense of the Slave South, which is unfortunately common among some on the Right. Yes, I know that there are plausible legal arguments that the South was constitutionally entitled to secede; a d it is also true that the Amendments enacted following the Civil War did intentionally increase federal power at the expense of the states.

     The trouble is that if you just make these points when you're talking about "sovereignty rest[ing] with the people," and praising the glorious lost days of the past, you're omitting something pretty huge: The Southern states were not ruled by the people, and as a result neither was the nation. They were ruled by white people. (I set aside here the ineligibility of women to vote, for various reasons; the chief one is that such ineligibility was nearly universal throughout the world at the time, and certainly on both sides of the Civil War, and didn't really begin to diminish in a material way for several decades [race discrimination in voting was prohibited throughout the nation de jure, if not really de facto, by the Fifteenth Amendment in 1870; sex discrimination in voting only began to erode around then, and wasn't accomplished nationally until 1920]. I'm hesitant to fault people for falling into universal errors.) White people in the supposedly "free and independent states" -- "free," of course, only in the redundant sense of "independent," and not free in the sense of "securing freedom to their citizens" -- had a largely unlimited license to own, beat, rape, and, in smaller measure, kill black people. In the process of maintaining the Slavocracy, incidentally, the Southern governments also restricted the speech of white citizens, often prohibiting them from advocating for abolition of slavery; but that was naturally a tiny imposition compared to the evils perpetrated against slaves.

     And this omission is especially troubling in the context of Buchanan's specific argument. Buchanan isn't saying (explicitly or implicitly) "Yes, the Civil War freed the slaves, but it also dramatically reduced the liberty of all people by facilitating [list of huge encroachments on liberty by the fede al government]." I don't think such a case can be effectively made -- though I do think the federal government interfers with liberty in many ways, I think that slavery was such an awful crime against liberty that on balance the nation today is considerably more free than it was in 1860. (There are also other gains in liberty, of course, that help outweigh the various losses in liberty.)

     Rather, the specific horrors of federal power that he points to are . . . the possibility that the Supreme Court will require the legalization of gay marriage; the courts prohibiting government agencies from posting the Ten Commandments; and, in passing, the constitutional protection for flagburning. (Buchanan doesn't even explicitly mention abortion, the one thing that pro-life forces could consistently argue is the moral equivalent of slavery.) Arrayed against these costs is his omitted benefit of "Lincoln's War" -- the restoration (in some measure) of the liberty of millions of black Americans.

     Moreover, the little matter that Buchanan omits also undermines his praise of "the Constitution our forefathers crafted." That Constitution was a great document for its time; but it was not a great document for our time, precisely because its "retention by the states of much of their sovereign power" also left the states with the power to enslave a huge fraction of their population (which in turn kept the national election processes from being truly fair or representative of all Americans). It was not in that respect entirely a "noble charter," and it needed "overthr[o]w[ing]" at least in part. Fans of liberty and of democracy should praise those changes (even if they at the same time object that the changes may have, in their view, been accomplished with too much bloodshed or even too much procedural irregularity). They should acknowledge that while we should respect the Framers' handiwork, we should recognize its flaws (again, flaws that may ave been inevitable in 1787, but that are nonetheless real flaws). But all Buchanan provides is unconditional praise.

     Finally, Buchanan's lack of perspective about slavery is matched by his lack of perspective about modern times. He writes:

After World War II, that second Constitution gave way to a third, an unwritten, "Happy Convention," in Quirk's phrase. By the terms of that convention, Congress cedes its power over war, peace and foreign policy to the president, and its power to decide issues of race, gender, religion, culture and morality to the Supreme Court.

     Where does this leave the Civil Rights Act of 1964 (which prohibited private discrimination by "race, gender, [and] religion"? The Voting Rights Act? Title IX, which generally barred educational institutions from discriminating based on sex? These were much more important "deci[sions on] issues of race [and] gender" than were the Court's race and gender decisions (chiefly Brown v. Board of Education and the 1970s cases prohibiting governmental discrimination based on sex).

     Again, if you weigh them against all the Court's decisions on "race, gender, religion, culture and morality," you get vast real-world changes weighed against a few important real-world changes in the "race [and] gender" category and a bunch of relatively minor decisions in the "religion, culture and morality" category. Buchanan is entitled to rail about the Ten Commandments, gay marriage, and flagburning; even if I disagree with him on the policy questions and even the constitutional questions, I can see the merit in some of his criticisms of having these matters be decided by the Court. But there is no merit in his vast exaggeration of the importance of these issues. (The one conceivable exception to my argument is the development of abortion rights, which I recognize pro-life people understandably view as tremendously important. But Bu hanan doesn't mention abortion; and if this matter of life, death, and freedom qualifies as being fundamentally about "religion, culture and morality," then all Congressional decisions -- for instance, about the war on drugs, taxation, public health funding, and so on -- would also qualify as being about "religion, culture and morality," and Congressional influence in this field would again swamp the Court's influence.)

     A sense of perspective -- an ability to recognize the true magnitude of the harms against which you rail, and to compare it sensibly to other matters, especially the countervailing benefits that have come about together with these harms -- is intellectually and practically important. When you're making moral arguments, it's also morally necessary. An argument that complains about how Congress has turned over to the Court its power on certain matters, while ignoring the vast range of Congressional decisions on those very matters that is much more important than the Court's decisions, is a factually unsound argument. And an argument that attacks Lincoln and worships the original Constitutional framework without even mentioning slavery is a morally unsound one.