Saturday, November 15, 2003

 
[Randy Barnett, 11/15/2003 09:18:47 PM]
Go See Master and Commander: Saw Master and Commander last night. I highly recommend it. It is a wonderful production that knows how to take its time, lingering over the ship board details rather than striving for nonstop action like most Hollywood blockbusters. Lots of wonderfully authentic touches about life on a man-o-war. Acting is superb too. Russell Crowe has uncannily good judgment about projects. I cannot think of another action hero who is his equal at the moment, and he has range as well. But he did not dominate this picture, which is about how the crew needs to work as a team. His character provides the necessary leadership, but the film shows how everyone must pull together. Unlike most recent films, this one's worth the wait in line and the $9.00.

 
[David Bernstein, 11/15/2003 06:08:10 PM]
Q. What do left and right wing extremists have in common?

According to Trigano, the new discourse has sent shock waves through the Jewish community. "French Jews have begun to feel that their own legitimacy is being challenged. The Jews are deeply rooted in French civilization, but suddenly, with all our Frenchness, we have become refugees. In what other country is there active cooperation between leftist and Islamic students? An unprecedented and illogical alliance has been forged between the Muslim brothers and the ultra-leftists based on the shared idea that Israel is a country that practices apartheid."
Yehoshua Amishav of Keren Hayesod discovered a similar trend in Belgium. A few days ago, he returned from a worrying visit to this country. While he was there, he discerned an odd political alliance between the far right andTrotskyite leftists. "The Palestinian issue is the connecting thread, and the same is true for the right wing and left wing all over Europe," he explains. "The far right and the Trotyskyites are bitter enemies in every possible sphere. They're capable of killing one another. But when it comes to Israel, they're comrades in arms."

A. Hating Israel (and by extension, Jews).

The Trotskyite angle reminds me that supposedly the Chief Rabbi of Moscow had the following to say to Leon Trotsky (born Bronstein): "The Trotskys make the revolutions, and the Bronsteins pay the price."

 
[Eugene Volokh, 11/15/2003 10:25:09 AM]
Anthony Argyriou uncovers what seems to be a serious problem either with California voting machines or the vote tallying system: The Secretary of State's summary of votes on the Davis recall shows three counties -- Alameda (big), Kern (medium), and Plumas (small) showing 0 voters who didn't vote on the recall. How could that possibly be right? The other counties range from 0.5% to 10.3%, all plausible numbers -- but 0 is flatly implausible, especially in a county like Alameda, where over 400,000 people voted on the question.

     Argyriou also reports that all three counties used Diebold machines, two using electronic voting machines and one using optical scanners. Sounds like serious evidence of some bug somewhere. And though the number of nonvotes on the recall doesn't matter by itself, it seems to me like the 13th chime of the clock: It is not only itself wrong, but it casts doubt on all those that came before it. Looks to be much worth investigating.

UPDATE: Rick Hasen, one of the country's leading election law scholars (and a Californian), is also troubled:

Alameda and Plumas were the only counties to use Diebold DRE machines. Kern used Diebold-made optical scan machines. Other counties using those same types of machines as Kern had more typical undervote rates. . . .

What does this tell us? First, an investigation is absolutely essential. I recall that preliminary figures gave Alameda a 0.4% undervote rate on the first question. How did this change? Are there any factors other than malfunctioning voting technology that might explain this result? One thing that anecdotal evidence suggests is that because the touch screen prompts voters to avoid unintentional undervoting, it might prompt voters who intended to undervote not to do so -- perhaps in an effort to finish voting and leave the polling place.

Is this an argument for the need for a voter verified paper trail? I think we need to wait to hear what the experts from NIST tell us after their conference. Most unusual is the result from Kern using the optical scan ballots. Because the result is inconsistent with the results reported from other counties using the same technology, the explanation likely is not the vote casting machinery. Perhaps there was a problem with the vote counting machinery in Kern.

As I said, the most important thing is an investigation, and a quick one. If there are problems that can be identified and resolved before the 2004 elections, we would all be better off.

 
[Tyler Cowen, 11/15/2003 08:07:29 AM]
Testing Pesticides on Humans: I find Discover magazine to be a consistently interesting source of reading (and blogging) material. I was much intrigued by a story in the latest issue on "Testing Pesticides on Humans." The article is not yet on-line, here is a link to recent debates.

On a regular basis, humans are paid to drink, breath, or otherwise ingest pesticides. You can get as much as $200 a day (please don't write me asking for a lead on the job!). The information is then used to judge the safety of pesticides. No law prohibits such testing, nor are the tests reviewed by outside scientists. This sounds like the ultimate in caveat emptor. Here is one criticism of the practice. One industry spokesman, however, notes the following:

"The people that are participating in these studies have much more of a direct benefit than anybody participating in a phase I clinical trial would have."

If I had my finger on the "policy button," I would not ban the drinking of pesticides, which surely kills fewer people than does drinking alcohol and also pays the victims, rather than having the victim pay. I also would wonder whether the FDA might take a cue from current practice in this area. The EPA is considering new and tougher regulations for the whole idea.

The Discover articles notes: "In the meantime, we're all research subjects in the great pesticide experiment."

Friday, November 14, 2003

 
[Randy Barnett, 11/14/2003 10:23:01 PM]
Solum v. Rappaport: I am blogging tonight from Chicago on my annual sports weekend with my son featuring NU v. Michigan (Michigan is favored by 17!), Bulls v. Seattle, and the Bears v. Rams. Had lake perch tonight at Teibels in Schererville, Indiana. Tomorrow, apple pancakes at Walker Bros Original Pancake House in Wilmette, baby back ribs at Carson's: The Place for Ribs and, on Sunday, sliders from White Castle if we can fit it in. All our favorites you cannot replicate in Boston. mmmmmmmm

In a square-off between San Diego heavyweights, Mike Rappaport takes issue with Larry Solum's provocative proposal for breaking the filubuster over judges: The President calling the Senate into an Executive Council and demanding their advice and consent.

UPDATE: Larry responds to Mike here.

FURTHER UPDATE: NU and the Bulls lost. This leaves only the Bears to salvage the weekend, but Chicago sports fans do not need to win to enjoy themselves. But when we do win, it really feels good. And the perch, apple pancakes and ribs were outstanding.

 
[Tyler Cowen, 11/14/2003 02:59:30 PM]
More Clay Shirky: Here is Clay on the evolution of file-sharing. He suggests one possibility:

"Small amounts of social file-sharing, by sending files as email attachments or uploading them to personal web servers, have always co-existed with the purpose-built file-sharing networks, but the two patterns may fuse as a result of the Crush the Connectors strategy. If that transition happens on a large scale, what might the future look like?

Most file-sharing would go on in groups from a half dozen to a few dozen -- small enough that every member can know every other member by reputation. Most file-sharing would take place in the sorts of encrypted workspaces designed for business but adapted for this sort of social activity. Some users would be members of more than one space, thus linking several cells of users. The system would be far less densely interconnected than Kazaa or Gnutella are today, but would be more tightly connected than a simple set of social cells operating in isolation.

It's not clear whether this would be good news or bad news for the RIAA. There are obviously several reasons to think it might be bad news: file-sharing would take place in spaces that would be much harder to inspect or penetrate; the lowered efficiency would also mean fewer high-yield targets for legal action; and the use of tools by groups that knew one another might make prosecution more difficult, because copyright law has often indemnified some types of non-commercial sharing among friends (e.g. the Audio Home Recording Act of 1992).

There is also good news that could come from such social sharing systems, however. Reduced efficiency might send many users into online stores, and users seeking the hot new song might be willing to buy them online rather than wait for the files to arrive through social diffusion, which would effectively turn at least some of these groups into buyers clubs."

I've said it before and I'll say it again, Clay is one of the smartest people writing today. Read his whole analysis.

 
[Eugene Volokh, 11/14/2003 08:43:59 AM]
U.S. Court of Appeals panels and precedent: Reader Colin Fraizer asks, apropos the Ninth Circuit homemade machinegun decision:

How "binding" is an appeals court's decision on itself? When can a court change its own precedents?

     Here's a brief summary:

     1. Federal circuit court decisions are usually rendered by panels of 3 judges each, chosen more or less randomly from among the court's judges.

     2. In the Ninth Circuit, a panel is legally obligated to follow prior precedent set by other Ninth Circuit panels (or by en banc decisions, about which I'll say more later). Naturally, some judges sometimes wiggle around this rule, by drawing spurious distinctions between the current case and the precedent. But by and large, judges stick with it, which is why Judge Kozinski, who strongly dissented from the court's refusal to rehear an earlier panel decision that held the Second Amendment didn't secure an individual right (Silveira v. Lockyer), simply quietly accepted Silveira here.

     3. I believe most other circuits operate this way, though I think some circuits have subtle variations on this rule, and I think a few might even reject it (at least as a binding command). I know the Ninth Circuit practice better than that of other circuits because I clerked on the Ninth Circuit (for Judge Kozinski, in fact).

     4. What if one panel intentionally or inadvertently fails to follow another panel's decision, so now there are two inconsistent but supposedly binding panel decisions (an "intracircuit conflict")? Then the judges are supposed to "take the case en banc" -- have it be reheard by the entire circuit court, or, in the Ninth Circuit, which is very large (it's authorized to have 28 judges), before a panel of 11 of the circuit judges. En banc courts are not bound by prior circuit precedent, including prior en banc decisions, though they may of course find prior circuit precedent to be persuasive.

     5. A party can also ask the court to rehear a case en banc, even if there is no intracircuit conflict; and a panel that thinks a prior precedent is just very badly wrong can ask the court to rehear the case en banc (this is called a "sua sponte" request for rehearing). But the court is willing to rehear only a tiny fraction of its cases en banc, so the party request rarely succeeds, and the sua sponte request is rarely made.

     6. So, the bottom line: Both decisions of 3-judge panels, at least in the Ninth Circuit, and decisions of the en banc court are binding on future panels, and of course on district courts in the Ninth Circuit. Neither kind of decision is binding on the en banc court. So to overrule a panel decision, you need an en banc decision. (I set aside for now the thorny question of what you do when an intervening Supreme Court decision is logically inconsistent with or undermines a prior panel decision, but didn't explicitly overrule that panel decision. Should a new panel treat the prior decision as overruled? Or must it call sua sponte for en banc review, and, if the call fails, adhere to the prior decision?)

 
[Randy Barnett, 11/14/2003 08:38:56 AM]
Filibusters and Philosophy: As promised, here is the link to my op-ed in this morning's New York Sun and an excerpt:

But the debate over the filibusters should not detract from a different and legitimate issue raised by Mr. Schumer: that judicial philosophy, not just professional accomplishment, is a relevant qualification for judicial confirmation. True, the credentials and accomplishments of a candidate are part of what makes a candidate “qualified” to be a judge, but so too is how the candidate thinks a judge ought to do his or her job. Republicans implicitly concede this when they extol a candidate for his or her “judicial restraint” and condemn others for their “judicial activism.” These terms refer not to professional credentials and ability but to the attitude toward the job of judging.

The problem is that “judicial restraint,” “judicial activism,” or “enforcing and not making the law” are almost completely vacuous terms whether used by Republicans or by Democrats. Mr. Schumer is right to raise the issue of judicial philosophy, and Republicans need to explain just what sort of judges they want appointed.

AOL users can try clicking here.

 
[Tyler Cowen, 11/14/2003 05:52:56 AM]
Life under U.N. rule? No, not in some future Iraq, nor in Kosovo. Right here in New York City, in the United Nations building.

Last year New York City passed a tough anti-smoking law, but the law is not enforceable within the U.N. building, even though it is legally binding there (the laws apply but police require permission to enter and of course the smokers have diplomatic immunity). Posted signs says "Smoking Discouraged," which to this writer suggest an acknowledgement that smoking will occur. When Kofi Annan tried to ban cigarette smoking, protests ensued and the matter was refereed to the General Assembly, which debated it for hours, finally supporting the rights of smokers.

Here is the full story. It is also worth noting that the Secretariat Building fails to meet local building codes. It lacks sprinklers and has an abundance of asbestos, among other problems. Yes, this is a small piece of territory, I would rather not see how the U.N. would do with Iraq.

 
[Eugene Volokh, 11/14/2003 04:08:47 AM]
Caesar: The Lilly's Gourmet Caesar dressing that I bought a few days ago says this on its label:

Caesar. The name conjures up images of Homeric heroes and Roman kings and emperors.

Yeah -- among those who don't know their history . . . .

Thursday, November 13, 2003

 
[Randy Barnett, 11/13/2003 08:23:54 PM]
Game plan--"We Can't Just Call Him a Liar": Today's Wall Street Journal has a front-page column-one story on the Democrats' new "5-point strategy" to win the presidential race in 2004:

(1) "Neutralize Bush's national security edge by fanning doubts about his Iraq policy."

(2) "Craft economic attacks that can work even if the economy keeps improving."

(3) "Dent the president's reputation for honesty and competence."

(4) "Mobilize Democratic partisans in 17 states that Mr. Bush barely won or lost in 2000."

(5) "And maneuver around the new campaign-finance law by redirecting now-banned big donations away from the Democratic Party to a new set of groups that will coordinate attacks on Mr. Bush."

 
[Eugene Volokh, 11/13/2003 07:40:51 PM]
Weird possible anti-Semitism incident: From AFP:

[O]ne of [Greece's] best-loved composers, Mikis Theodorakis of "Zorba the Greek" fame, . . . was flanked by Culture Minister Evangelos Venizelos and Education Minister Petros Efthymiou when he made the comments at a November 4 reception for the publication of his autobiography, an event covered massively by the Greek media.

Film footage showed neither minister reacted when Theodorakis said Greeks and Jews "are two peoples without kin, but they had fanaticism and self-knowledge and managed to prevail."

"Today, we can say that these little people are the root of evil," said Theodorakis, 78, a committed leftist and political activist who was jailed under the fascist junta that held power in Greece in the late 1960s and early 1970s.

Government spokesman Christos Protopapas sought Wednesday to distance the government from his comments, which despite the number of journalists present were only repeated in one small right-wing daily.

"The government does not share and is not in agreement with the opinion expressed by Mr. Theodorakis," the spokesman said, but added that "despite the disagreement" the composer "is still held in high regard" by the government for his works. . . .

     If the comments were really anti-Semitic, this is very troubling, not because some composer said them, but because the flanking government officials didn't respond, and the domestic media barely covered them. (Greek Jewish leaders are condemning them, as the AFP story also says.) But what's weird is the context: It sounds from the AFP story, at least, that he's talking about the subjects of the preceding quotes -- Greeks and Jews. Is he really saying that Greeks are the root of evil, as well as Jews? Why? What's up here? Is it all just a big misunderstanding? It seems to me there's more to this than the story suggests, but I have no idea what that might be.

 
[David Bernstein, 11/13/2003 05:56:17 PM]
More Jewish Anti-Semites: Reader Daniel Barenholtz notes two notorious anti-Semites with Jewish fathers--Vladimir Zhironovsky and Bobby Fischer.

 
[Jacob Levy, 11/13/2003 04:17:50 PM]
Political theory excitement of the day: Today I received my pre-ordered copy of the new English translation (which is also the first complete English translation) of Benjamin Constant's Principles of Politics Applicable to All Governments. Constant has received increasing recognition in the English-speaking world over the past two decades as one of the founders of liberalism, and arguably as the first fully liberal political theorist. Biancamaria Fontana's 1988 Cambridge volume of Constant's political writings has been a tremendous help in this, making some of Constant's most important writings widely available in English after a long absence.

But, by my reckoning, more than two-thirds of Constant's political writings had never been translated into English, and this included two book-length manuscripts of considerable theoretical importance: the Fragments of an Abandoned Work on the Possibility of a Republican Constitution in a Large Country and the Principles (an earlier, much longer, and much more philosophical version than that which was hurriedly published in 1815, and included in Fontana's collection). With the new volume (translated by Dennis O'Keefe from Etienne Hoffman's authoritative edition, and published in a beautiful and inexpensive format by Liberty Fund) half of that problem has been solved-- I'm even willing to concede that it's the more important half, though the Fragments are an object of particular fascination to me.

I think this volume will make a big difference in Constant's standing among anglophone political theorists-- and will affect how he is seen in some interesting ways. (His writings on economics and commerce, for example, have not been available in English before this.)

I've spent the afternoon reading the volume and so far I'm very impressed with the translation-- its fidelity to both Constant's style and to his words and meaning.

I know that ninety-odd percent of Volokh readers aren't interested in this-- but, hey, it's a blog. And some of the remaining readers will be or should be very interested in it.

 
[Eugene Volokh, 11/13/2003 01:16:10 PM]
The Bill of Attainder / gay marriage lawsuit: I've uploaded the decision here; my original post is here.

 
[Eugene Volokh, 11/13/2003 01:08:39 PM]
Huge Commerce Clause decision: The Ninth Circuit has just held that Congress lacks the power to ban possession of homemade machineguns -- the Commerce Clause, the court held (per Judge Kozinski, joined by Judge T.G. Nelson; Judge Restani of the Court of International Trade, sitting by designation, dissenting), doesn't go that far.

     The court specifically did not rely on the Second Amendment, because of binding Ninth Circuit precedent holding that the Second Amendment doesn't secure an individual right. So states may still ban such possession, and Congress can ban the sale of machineguns (even purely intrastate sale) -- but Congress may not ban private possession, at least of the homemade devices.

     This fits with the Ninth Circuit's McCoy decision this year (written by Judge Reinhardt), which held that Congress may not ban the mere possession of homemade noncommercial child pornography. Unless the Ninth circuit grants rehearing en banc in these cases -- I'm not sure whether there's still time to do that as to McCoy, since I'm not sure whether the panel has denied a motion for rehearing by the panel itself -- I predict the Supreme Court will agree to hear these cases (or possibly agree to hear one and hold the other pending a decision in the first). The Ninth Circuit acknowledges that its decision create as split with three other circuits; that, and the holding that a federal statute is unconstitutional as applied, are both reasons the Court may grant certiorari.

UPDATE: Cute detail -- Stewart discusses and distinguishes an earlier leading Ninth Circuit precedent on the matter, called . . . United States v. Rambo.

FURTHER UPDATE: Larry Solum has more.

 
[Eugene Volokh, 11/13/2003 12:51:42 PM]
Objections that I just don't get: A reader writes, objecting to my endorsement of the search for ways that people can control their sexual orientation:

You ask: "Why shouldn't we equally welcome the opportunity for people to have more choice about their sexual satisfaction, rather than being at the mercy of the way their involuntary sexual reactions operate?"

I answer: Because it presents serious problems about individual autonomy. Who decides what pills to make and how do you prevent force from being applied to those who don't want to take such pills?

     The pill example is something of a thought experiment: What people are talking about is probably a long process of conditioning, which is hard to illegally foist on someone. But in any event, is the fear that some people might force someone to take a pill really a good reason to ban that pill? Should we ban RU-486 because some people might try to slip it to a woman to cause her to miscarry? Should we ban arsenic because some people might try to slip it into someone's coffee (or substitute the proper poison and liquid if for chemical reasons that won't work)?

     My correspondent continues:

As another aside, you or at least some of the other bloggers, seem to be operating from a heterosexual baseline. Would you favor creating a pill that would allow you to be gay, or to appreciate having sex with as many different species of animals as possible?

Well, to answer the first part of the question, I quote my second post on this: "Why should it be any different for mechanisms that help people sexually desire the opposite sex, or sexually desire the same sex, or not crave sexual variety, or not crave rough sex? Why shouldn't we equally welcome the opportunity for people to have more choice about their sexual satisfaction, rather than being at the mercy of the way their involuntary sexual reactions operate?" I say I'm pro-choice, because I want people to be able to choose their desires, not be stuck with the ones that nature foisted on them. Of course I mean that straights should be able to become gay, if they want, as well as vice versa. Why doubt me on that?

     To answer the second part, it's interesting that the bestiality analogy is now being given by what seems to be a pro-gay perspective. It seems to me that it's just as misplaced an analogy to heterosexuality as it is to homosexuality.

     The reason people may oppose the pro-bestiality conditioning (or pill) is that they think that bestiality is wrong (for instance, because it steers us away from human relationships, with all the extra richness that they can add to life), and not because they think that changing one's preferences is wrong. After all, if we oppose bestiality, but see that some people do want to have sex with animals (or, worse yet, with animals to the exclusion of humans), wouldn't we want people to discover some process that lets the zoosexuals who regret their preference change it?

     I'm generally much in favor of gay rights: I believe that it's good to let people be who they are, where their sexual orientation goes, and with the usual caveat about consenting adults. But I'd like to go one step further: I think it's also good, for very similar reasons, to let people be who they want to be.

     By the way, I've gotten some interesting responses, and I hope to blog responses to them soon -- but I'm swamped this afternoon, and have to delay that, maybe for several days.

 
[Eugene Volokh, 11/13/2003 12:21:47 PM]
Update on German anti-Semitism: Susan Caskie, the foreign editor at The Week magazine ("a brisk digest that summarizes the best of American and international news and commentary"), writes, apropos the German legislator's complaint about Jews being involved in the Communist movement:

For our forthcoming issue (out on Friday and available at Barnes and Noble) we did a roundup of German papers' takes on the topic.

One commentator made the point that, while there were a disproportionate number of Jews among the Bolsheviks relative to their population, Jews were still a tiny minority of revolutionaries and were quickly and bloodily purged after the revolution succeeded. The canard that Jews "invented communism" and were behind the excesses of the rising Soviet state was actually rooted in the good old Protocols, and was resurrected after WW1 by none other than Henry Ford, notorious anti-Semite. He popularized this lie in his newspaper, The International Jew.

That's why hearing it come out of the mouth of a German politician in the 21st century was more shocking to Germans than it seems to us Americans. Most of us just aren't as familiar with the code phrases of vicious anti-Semitism as the Euros are.

See this commentary by Richard Herzinger http://www.zeit.de/2003/45/anti
The text has been changed since it was first posted, and he no longer mentions Ford specifically, but I confirmed the reference elsewhere.

A very good point: There were lots of Jews, I'm sure a number far out of proportion to their share of the population, in the Communist movement both in Russia and elsewhere; but it was certainly not a majority or a dominant group. We're influential, but we're not that influential . . . .

 
[David Bernstein, 11/13/2003 12:17:44 PM]
O'Reilly Appearance: I'm scheduled to appear on the O'Reilly Factor tommorow night on Fox News Channel during the 8:00 p.m. EST hour, to discuss conflicts between civil liberties and antidiscrimination laws.

 
[Eugene Volokh, 11/13/2003 11:48:38 AM]
Unintentional self-parody department: From the San Diego State University student newspaper:

San Diego State is . . . dropping the word "foreign" from the general catalog's "Foreign Language Requirement."

According to Dean of Division of Undergraduate Studies Geoffrey Chase, the University Senate decided to delete the word "foreign" from the title last Tuesday. Chase said the extraneous word carries negative connotations and should, therefore, be omitted in the next publication of the general catalog.

Members of the Undergraduate Council, who drafted a rationale, in support of this initiative wrote: "The term 'foreign' has been used to designate something alien and is as ethnocentric and inappropriate as using 'oriental' to designate a person of Asian descent." Moreover, members pointed out many universities that have already changed the wording of the requirement such as Stanford University, University of Michigan, University of Chicago and University of Texas.

Chase said he knew of some Cal State Universities that have already made the transition. CSU San Marcos did so in 1999. Prior to this, Chase said other alternatives for the existing title included "Non-English Language" and "Second Language," but were both rejected by the council since English is not always a primary language in the household. . . .

Communication sophomore Tamara Murray said the movement from "Foreign Language Requirement" to "Language Requirement" doesn't bother her.

"It makes sense," Murray said. "By assuming English is the only non-foreign language, the term could seem discriminatory. It's something I don't usually think about as a native speaker."

     Wow.

 
[Eugene Volokh, 11/13/2003 11:20:19 AM]
Opinion electing Chief Justice Roy Moore senator, oops, opinion removing the Chief Justice, is available here. It's only 13 pages.

 
[Randy Barnett, 11/13/2003 10:29:46 AM]
More on Judicial Philosophy: Thoughtful posts beget thoughtful responses. In this case, Rick Hasen, Stephen Bainbridge, and Matt Yglesias respond to Larry Solum's excellent blog on judicial philosophy.

In a very lengthy post, Steve suggests "that the politicization of the judicial confirmation process is a symptom of the broader legalization of politics." Matt challenges Larry's contention that "neoformalist" judging leads to less politicized judging. Rick questions whether politicized judging is properly dubbed a form of "corruption." My guess is that Larry will respond to these replies, as they merit serious consideration.

I will provide a take on these issues--especially the position articulated by Matt--in an op-ed I expect to run in tomorrow's New York Sun (to which, I am told there will be a publicly accessible link). CAVEAT: This is a complicated issue and I am sure I will modify and refine my opinions on this over time. But stimulated by the thoughts of Larry and others, this is the direction in which I am currently moving.

In my necessarily brief piece, I will distinguish between judges who ignore the parts of the Constitution that get in the way of their political agenda--whether it be the Commerce Clause, the Necessary and Proper Clause, the Second Amendment, the Ninth Amendment or the Privileges or Immunities Clause--and judges who exercise the discretion properly allowed by the more abstract provisions of the Constitution. (In my view both "judicial liberals" and "judicial conservatives" of both parties are guilty of this sin. They just differ on the provisions they ignore and the reasons they ignore them.)

Though reasonable people may differ on who is which, in principle the former type of nominees should be rejected; the latter should be approved even though, when one party controls both the presidency and Senate, this will move judicial results in the political direction of that party. This "ideological" movement is an inevitable consequence of our political mode of nominating and confirming judges. When this natural gravitation is obstructed, either by a minority filibuster, distorting the views of a nominee, or by using unsavory muck-raking tactics, the "downward spiral" so aptly named by Larry is what results. Note that when the Senate and presidency are in different hands, a far less dangerous kind of stalemate results.

The solution for those who dissent from the party controlling the presidency and Senate is (1) to oppose candidates on their merits--including on their judicial philosophy--and (2) to work to regain control of the presidency and Senate--in part perhaps on the basis of this very issue. This is what Republicans, for better or worse, did after 50 years in the judicial wilderness. Using unfounded smears and unconstitutional tactics (assuming anyone has ever done this) to block the consequences of their having used the political process to obtain this sort of political control undermines the normal lubricant that prevents a partisan-by-design system from collapsing.

 
[Jacob Levy, 11/13/2003 10:08:53 AM]
Reparations: Those interested in the issues David raises below-- how long a claim for reparations ought to last, and to whom it is owed-- might want to look at the following (besides Nozick's well-known but brief suggestion that claims for reparations in principle never expire):
Jeremy Waldron, Superceding Historical Injustice," from Ethics
Section 5 of Lukas Meyer's SEP entry on "Intergenerational Justice"
The website of this upcoming conference on reparations
I discuss reparations, ethnic conflict, and adverse possession at length in The Multiculturalism of Fear. I argue that claims to actually have lands restored expire fairly quickly once innocent third parties have had possession (but not so quickly as to condemn the SOuth African attempt to undo post-1948 expropriations of black-owned property), but that claims for compensation take much longer to expire-- except when there is a serious historical rupture in the corporate identity of the wrongdoer (i.e. the state).

 
[Randy Barnett, 11/13/2003 09:26:25 AM]
Solum on Judicial Philosophy: A truly excellent post today by Larry Solum on the Legal Theory Blog. Here is how it ends:

What happens when we complete the conceptual reorientation and see judging as a mere extension of ordinary politics? Nothing good. The bottom of a downward spiral of politicization is a thoroughly politicized judiciary. We know what that looks like. It exists in odd corners of the United States, where lawyers know that winning even in a run of the mill tort case is almost entirely a function of how much you have contributed to the local political machine. A thouroughly politicized judiciary is the norm in much of the third world, and the result is that the transparency required for well-functioning markets cannot be achieved--at enormous costs in human welfare. In a thoroughly politicized judiciary, every case is a patronage opportunity or a chance to score political points.

Tom Daschle watched The Batchelor last night. But did he sleep peacefully, his dreams untroubled by the damage that both parties have done to the rule of law? I hope not.

You really need to read this one from the beginning.

UPDATE: Thoughful posts beget thoughtful responses, in this case from Rick Hasen, Stephen Bainbridge, and Matt Yglesias.

In a very lengthy post, Steve suggests "that the politicization of the judicial confirmation process is a symptom of the broader legalization of politics." Matt challenges Larry's contention that "neoformalist" judging leads to less politicized judging. Rick questions whether politicized judging is properly dubbed a form of "corruption."

My guess is that Larry will respond to these replys, as they merit serious consideration. I will provide a take on these issues in an op-ed I expect to run in tomorrow's New York Sun. Hopefully, there will be a publicly accessible link.

 
[Eugene Volokh, 11/13/2003 09:04:48 AM]
Gay marriage and the Constitution: Pro-gay-marriage activists are now arguing that state "defense of marriage" amendments violate the Bill of Attainder Clause; and a federal district court judge in Nebraska just suggested that such a theory is viable, denying the defendants' motion to dismiss. Citizens for Equal Protection v. Attorney General, 2003 WL 22571708 (D. Neb. Nov. 10). (Please let me know if you know where the opinion might be available on the Web.)

     I think the plaintiffs' arguments should be rejected: The challenged Nebraska constitutional provision,

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domstic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

is an entirely proper exercise of Nebraska citizens' power. The court reasons that "Section 29 does not just withhold a benefit; it actually prohibits same-sex relationship couples from working to obtain governmental benefits" ("working" meaning "working effectively through the legislative process" -- obviously they can still work through proposing a constitutional amendment). But all constitutional constraints operate this way.

     The Establishment Clause prohibits groups who want to establish a church from working to obtain that governmental benefit. The privilege against self-incrimination prohibits some victims' rights advocates from working to obtain certain new criminal justice procedures. The same is true of state constitutional provisions. The whole point of a constitution is to withdraw certain topics from the standard legislative process, thus keeping advocates of certain positions from effectively working to get what they want through the standard legislative process.

     That just isn't a Bill of Attainder Clause violation, and no Supreme Court cases suggest that it is. (There are a few race-related cases that have taken this view in narrow circumstances, but on race discrimination grounds, not Bill of Attainder Clause grounds.) I have to run, and can't blog much further on this; but I thought I'd briefly mention the decisions, which seems to haven't gotten much press coverage yet (though maybe I missed some).

     The court decision isn't a final victory for plaintiffs, even in that court -- the court just denied a motion to dismiss, and there'll be more proceedings ahead, and doubtless eventually an appeal to the court of appeals. But I think it should be and will be in the news, both buttressing the resolve of the pro-gay-marriage groups, and strengthening the argument for the Federal Marriage Amendment. I still oppose the FMA, because I think the courts will ultimately correctly reject these claims. But the more courts, even trial courts, show a willingness to set aside state voters' and legislators' decisions on these matters, the stronger the argument for the FMA will be, both politically and logically. (I tentatively support gay marriage, but I think it should be decided through the constitutionally authorized processes in each state, and not by the federal courts.)

UPDATE: Reader Kevin Flanagan kindly sent me a copy of the decision, which I've uploaded here.

 
[Tyler Cowen, 11/13/2003 06:25:30 AM]
Changing your preferences, sexual and otherwise: I was much intrigued by Eugene's post from yesterday, where he defended the value of technologies that help you change your preferences. In particular he defended the value of a (hypothetical) pill that could change your basic sexual desires from homosexual to heterosexual, or vice versa.

Such a pill, if it existed, would be the subject of enormous contention. I agree with Eugene that it would be for the better, on the whole, to allow such technologies, but I also see significant costs. In particular, there might well be greater pressures on those who wished to keep their initial orientation. For instance, if each gay person was somebody "who chose to stay gay," I suspect public attitudes (of the non-gay) would change. It is no accident that many gay people wish to promote awareness of their belief (which I share) that gayness is commonly a basic orientation from birth, not a later lifestyle choice.

And the gay community would itself split, have you ever read about how the deaf community reacts to new technologies to restore hearing to some of the deaf? It is, to say the least, controversial, and in my book being able to hear counts as a benefit in a way that a particular sexual orientation does not.

Even if such a pill worked, how fully would it have to operate? You could imagine previously gay people "trying on" heterosexuality, through such a pill, but not having enough history, memory, background, or whatever, to really "pull it off." Even if some people were happy with the switch, I suspect many would not be. Nor would I expect the decisions to try the switch to be very rational. And the people who didn't switch might be tempted to always wonder if they should, to the detriment of getting on with their lives.

In short, sometimes it is simply better to accept the way things are and put subsequent decisions behind oneself and ignore them. Much of marriage, for instance, operates on this basis.

The best case scenario would be that many heteros experiment with being homosexual for a while, and that various biases and distinctions break down. I don't expect this would happen much, but surely it is one possibility.

Why allow the pills? First, it fits under my notion of personal liberty. Second, the overall potential for desire-altering technologies may be enormous. Eugene points out numerous good examples, such as creating desire in yourself for only healthy food. Also imagine the benefits of technologies to change pedophiles into more normal people. I would rather let the sector develop than try to regulate or fine-tune it. But on the particular issue of a pill to become heterosexual, I am not sure that such a pill would make the world better off.

 
[Eugene Volokh, 11/13/2003 03:40:44 AM]
More reparations: This time, it's a Jerusalem Post article saying that Europeans should return Jewish property seized 500 years ago (including, for instance, land that now contains churches built over destroyed synagogues):

Lists of confiscated Jewish communal property in Europe should be expanded to include not just buildings taken by the Nazis or the Soviets, but by their medieval forebears as well. The Foreign Ministry, working together with Jewish organizations, should press the Europeans to come clean, and demand the return of our stolen patrimony.

After all, from a moral point of view, our right to Monti-Sion in Spanish Majorca is no less compelling than our right to Jewish property in Germany, Poland or elsewhere.

     Note the two mistakes here: First, the argument rests on the notion of group guilt and group entitlement, which has so often been used against Jews, now being used supposedly on behalf of Jews. So some Jews in Spain had their property stolen. That's horrible. But why should it now be given to completely different Jews today, simply because they share the same ethnicity or religion?

     Second, the argument completely ignores the rights of subsequent owners of the property. There are people, entirely innocent people, who now own or use the property that was stolen 500 years ago. They've invented their time, effort, and money to keeping it up, improving it, and investing orders of magnitude more into it than it was worth 500 years ago when it was taken.

     Yes, I understand the argument that stolen property wasn't rightfully the thief's in the first place, and therefore no subsequent purchaser or user has any right to it. I also understand the argument that for properties owned by the Catholic Church, the property is still owned by an entity that was, in many instances, one of the malefactors responsible for seizing it. But applying these arguments 500 years down the road is substituting legal fictions for reality.

     The principles that bona fide purchasers can't get rightful possession of stolen property, and that corporate bodies may have obligations that persist over long times, are sound over the short-term, but they become less and less just over the long-term. At some point, they become ridiculous, because they no longer respond to the moral claims of innocent parties -- and, as I mentioned, the contribution to the current value of the property by innocent parties (real people, not corporate bodies) over 500 years vastly exceeds any contribution by the original thieves. One can debate where to draw the line; but 500 years is way past the line. And if you abstract from the property itself and instead ask for compensation for the governments, you're really asking for compensation from current taxpayers, who are likewise innocent parties.

     The Russians aren't entitled to compensation for damages from the Mongols. The American Indians aren't entitled to compensation from the Spanish. Mediterranean Europe isn't entitled to compensation from the Romans, nor the Romans from the Carthaginians. Real people today shouldn't have their property taken away today because of the sins of others centuries past, and given to others today who weren't the ones who were sinned against.

     Such reparations would pile injustice on injustice. They would lead people to dwell on 500-year-old sins rather than think about the future. And they would reinforce the notions of racial/ethnic/religious guilt and desert that often helped cause the problem in the first place.

     Thanks to Sam, in the comments thread at Protocols.

Wednesday, November 12, 2003

 
[Eugene Volokh, 11/12/2003 11:35:18 PM]
Amusing line that I was recently reminded of:

Flattery will get you nowhere -- but keep talking.

I forget who the source was; maybe SF writer Steve Barnes, but my memory is hazy.

 
[Eugene Volokh, 11/12/2003 11:31:28 PM]
Seaweed and the law: The Rhode Island Constitution, article I, section 17, says (among other things),

The people shall continue to enjoy and freely exercise all . . . the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to . . . the gathering of seaweed . . .

     On a different note, observe that the provision says more than that they have the right: They shall freely exercise the right, and they shall enjoy it. Expect prosecutions for "failure to gather seaweed" (first degree), or "failure to gather seaweed with a suitably sunny attitude" (second).

     (Want a serious takeaway from this post? How about: The meaning of a constitutional provision often can't be determined by literally interpreting its words in their modern lay sense. Sounds like an obvious principle, but people sometimes ignore it.)

 
[Eugene Volokh, 11/12/2003 09:31:40 PM]
Life imitates art? Well, not really; both just exploit a pretty obvious application of existing technology. Still, compare a minor plot device in my Legal Affairs short story with MyLastEmail.com, a service that lets people compose e-mails to loved ones that will be sent only after the e-mailer is dead. (Thanks to GeekPress for the pointer.)

 
[Eugene Volokh, 11/12/2003 06:49:46 PM]
Choice about one's own reactions: Eric Muller, whose work I always appreciate, criticizes my post that defended the value of research into how people can change their sexual orientation. I'm not sure I fully understand Eric's criticism, but the key portion seems to be this (though since I might not understand it, I might have gotten it wrong -- check his whole post):

[I]t is incoherent to speak of a human being “freed” of internal human pressures and needs. The end result of psychoanalysis is a degree of integration of conscious and unconscious life, not freedom from unconscious life. . . .

I think [this] means that Eugene is wrong to identify freedom from inner constraint as an unambiguously positive thing. Freedom from outer constraint might be, but an objective of freedom from inner constraint will probably just lead to misery because of its impossibility. Understanding of inner constraint seems a far better objective, for that will allow individuals to come to terms with their own unique makeup and to decide what to make of their own sexual desire.

     I can't quite figure out what to make of this argument, so let me approach this from a different direction. Say that someone developed a pill that could make people stop strongly wanting alcohol, or drugs, or unhealthy foods. I think that this would be a good invention because it would give people an extra choice. Some people might not exercise the choice -- for instance, I handle alcohol just fine, and if the pill would also make me stop enjoying alcohol, it would be a net minus for me. But others might really value the choice, because it would keep their bodily urges from making them do things that they later regret. We might say, without straining the term "freedom" much, that the pill can free them of their physical urges.

     Of course, these are all examples of urges most of us would think are bad or at least often bad (I think drinking alcohol is generally fine, but strongly wanting it is more dangerous), and I don't think homosexual desire is bad. But Eric's point, as I understand it, isn't that trying to change your sexual desires is wrong because they're good desires -- it's that trying to change such "inner constraints," regardless of their moral quality, is impossible, and likely to lead to misery. I think my examples above cast doubt on that.

     But let me shift now to more neutral desires. Say that someone believes for philosophical reasons that he should be a vegan; but he finds that he really wants to eat meat, dairy, and eggs, and eating meat, dairy, and eggs gives him great pleasure. Moreover, he finds that eating the vegan foods (at least to the exclusion of nonvegan ones) is very unpleasant, so he often slips and eats meat, and when he doesn't slip, he's miserable as a result. I think it would be good if we could find a way in which he could change his food desires, from what is in my view one morally acceptable option (being an omnivore) to another equally morally acceptable option (being a vegan). We'd have increased his choices, and probably increased his opportunity for happiness. (If he's one of those people who derives affirmative benefit from resisting temptation through willpower alone, that's fine; he has the choice not to take the pill.)

     So far, I hope that all I've said isn't psychologically, morally, or philosophically controversial. I suspect most of us think that a pill (or some other mechanism) that could reduce desire (especially strong desire) for alcohol, drugs, or unhealthy foods would be very good, because it would provide a very valuable, possibly life-saving choice to people. A mechanism that could make one like vegan food, and not crave meat, would probably be nice, because it would provide a choice that will be valuable to some people. Both would help free us from being controlled by our physical desires, and help us do what we find makes us happy, rather than what gives us immediate physical gratification. (Of course, if the gratification is very great compared to the alternatives, then we might prefer it, despite the regret it causes; but, again, the person would have his choice.)

     Why should it be any different for mechanisms that help people sexually desire the opposite sex, or sexually desire the same sex, or not crave sexual variety, or not crave rough sex? Why shouldn't we equally welcome the opportunity for people to have more choice about their sexual satisfaction, rather than being at the mercy of the way their involuntary sexual reactions operate?

 
[Randy Barnett, 11/12/2003 05:30:24 PM]
More on Recess Appointments: In response to my earlier blog and those of others such as Pejman Yousefzadeh, Stephen Bainbridge examines whether game theory illuminates the current conflict over judicial nominations. Check out his Game Theory and the Judicial Nominations Impasse.

 
[Eugene Volokh, 11/12/2003 12:53:29 PM]
Speech and academic freedom at Emory: A troubling incident, reported by Erin O'Connor. I should also mention that it sounds to me like O'Connor's interpretation in the last paragraph is right: The phrase, as best I can tell from the account, was not racist; and while I probably wouldn't have used it myself, the fact that this triggers the whole "hostile environment" investigation machinery shows yet again how broad the possible scope of such speech suppression has ended up being. Thanks to InstaPundit for the pointer.

UPDATE: Ralph Luker agrees with Erin O'Connor and me on this, but quotes someone who disagrees. I agree with Ralph rather than his correspondent, but I thought I'd pass it along for those who are interested.

FURTHER UPDATE: O'Connor and Luker are now more critical of the anthropologist's statement, and suggest that the nonracist explanation is not that plausible. The statement still sounds to me like it probably wasn't racist (in the sense that it didn't convey contempt or dislike towards a racial group, the definition of "racist" that seems relevant here), for the reasons mentioned in the last paragraph of O'Connor's first post.

     But even if the matter were more ambiguous, it seems to me the proper answer is a "What exactly do you mean by that?" delivered by the offended party in a frosty tone of voice. This is both something of a reprimand itself, and an opportunity for the speaker to clarify the ambiguity. And in any event, I firmly stand by my original point that even racist statements (if this was one) are within the scope of academic freedom, and the responses to them should be condemnation and opprobrium, not the threat of administrative sanctions.

 
[David Bernstein, 11/12/2003 12:41:58 PM]
Objectivist Pickup Lines: My favorite: "Why don't you get undressed so I can check your premises?"
Via Freespace.

 
[Eugene Volokh, 11/12/2003 12:23:50 PM]
What blogging adds: The CounterRevolutionary went to the New York Public Library, found New York Times articles from 1945-46 about difficulties in the occupation of Germany, and is posting excerpts on his site. There are of course dissimilarities between 1945-46 Germany and 2003 Iraq; but this is certainly a valuable addition to the debate -- and without blogs, I doubt that it would have been made. Now InstaPundit has picked it up and called it to the attention of thousands of readers; maybe the press will too. A great example of the value of blogs.

 
[David Bernstein, 11/12/2003 12:04:10 PM]
I'm giggling at the idea that Jews can't be anti-Semites. For some extreme examples, click here. And of course, if you consider Marx a Jew (I don't; his family converted and raised him as a Christian), then one of the most influential anti-Semites of all times was a Jew.
UPDATE: Pejman elaborates, and Ted Barlow replies in Pejman's comments section.

 
[Eugene Volokh, 11/12/2003 11:52:27 AM]
The U.S. Constitution and foreign law: I highly recommend Jacob's colum in The New Republic, which he linked to below; I think that he says makes very good sense. As I've said before, some reliance on international sources is well within the American legal tradition; and I think that Jacob's distinction between Justice Stevens's use of foreign sources in Atkins (the death penalty for mentally retarded killers case) and Justice Kennedy's use of such sources in Lawrence is quite sound.

     Nonetheless, a recent article I read has led me to be somewhat more troubled by such foreign legal influences. The article spoke of the possible effect of treaties on the Constitution, but I think some aspects of it apply to use of foreign law (in constitutional matters) more generally. This doesn't negate Jacob's very sensible points, but it does suggest some extra caution may be called for.

     I blogged about this piece already over a month ago, but this struck me as an important enough -- and, given some Justices' recent speeches urging more reliance on international sources, timely enough -- that it was worth reposting:

SIGNING TREATIES MAY ERODE THE BILL OF RIGHTS: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment. Yes, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution" (speaking of the Bill of Rights). But it turns out that this supremacy of the Bill of Rights really isn't that strong: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech . . . supply[ing] a basis for prohibiting it, the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] . . . in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

     These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from a recent article by Prof. Peter Spiro, one of the leading American international law scholars; the article, called Treaties, International Law, and Constitutional Rights, was published in the Stanford Law Review, which is generally seen as one of the top 3 legal journals in the country.

     Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights -- "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" -- and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."

     Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms. They may think the international lawmaking community (mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field) will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

     But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

     Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.

     In any event, that's just my opinion. Read the Stanford Law Review article, which is fortunately quite readable and not terribly long (30 law review pages) for a different view.

 
[David Bernstein, 11/12/2003 10:58:05 AM]
'The Human Stain' on America's Campuses: From my op-ed in Monday's Orange County Register:

In the new movie "The Human Stain," Coleman Silk, a professor of classics at a small liberal arts college, is hounded by charges of racism when he utters the word "spook" in class. Despite the fact that Silk used the word in a non-racist context, student activists rally against him, and his colleagues cravenly refuse to support him, lest they be accused of insensitivity. This event marks the beginning of the descent of Silk's life from respected academic to scorned recluse. While Coleman Silk is a product of novelist Philip Roth's imagination, real-life professors have found themselves embattled by equally absurd and abusive complaints based on classroom remarks.

The Register version is not available on the Web, but you can read a slightly longer version here (scroll down or do a "Control F" search for Bernstein).

 
[Jacob Levy, 11/12/2003 09:34:07 AM]
Now online: My new TNR column-- on a topic Eugene has blogged before, the uses of comparative law in U.S. constitutional interpretation-- is up.

 
[Jacob Levy, 11/12/2003 09:30:36 AM]
Judicial review: Will Baude:

On page 40 of Democracy and Distrust, [Ely] says, "at the time of (the Fourteenth Amendment's) ratification only three Acts of Congress had been declared unconstitutional by the Supreme Court." Despite the copious endnotes (ninety-some in that chapter alone), there's no reference for that claim, which I find a pretty fascinating one. Does anybody know what three?

The more I think about this, the more sure I am that I've always heard that the Court only did so twice before the Civil War-- the Judiciary Act (in relevant part) in Marbury and the Missouri Compromise in Dred Scott. I wonder whether the Court struck down an act of Congress after the beginning of the Civil War but before the adoption of the Fourteenth Amendment...? David B, you're likely the person who knows...

UPDATE (from "second update" to Baude's post linked to above): Ex Parte Garfield was indeed from 1866, as I guessed the third case might be. But I note the following from readers.

Seth Tillman:

The best (perhaps only) source addressing this question is Professor
Corwin's annotation of the US Constitution, aptly titled: the U.S. Const. Analysis and Interpretation.

Using July 1868 as the cutoff date for the 14th Amendment, he lists (in addition to the Missouri Compromise and the 1789 Judiciary Act) --

Reichart v. Phelps, 73 US 160 (1867): Act of Feb 20, 1812 (2 Stat. 677); violative of 5th Amendment Due Process;

Ex parte Garland, 71 US 333 (1867): Act of Jan 24, 1865 (13 Stat. 424); violative of ex poste facto and interference with President's pardon power.

You might want to add Hayburn's Case -- but that was not a Supreme Court case. And Professor Currie would add (my favorite) Hollingsworth v. Virgina for striking down a provision of the 1789 Judiciary Act -- but I don't agree with Professor Currie's analysis.

Howard Gillman:

For what it's worth, the best discussion of the exercise of judicial review before the Civil War is by Mark Graber: "Naked Land Transfers and American Constitutional Development", 53 Vand. L. Rev. 73 (2000). Mark's argument is that the Marshall and Taney Courts struck down MANY acts of Congress before the Civil War, mostly dealing with Congressional land grants that (unintentionally) had the effect of depriving people of property rights that had been previously granted.

 
[Eugene Volokh, 11/12/2003 08:24:38 AM]
Pro-choice: I thought I'd mention one more item about the attempts to suppress arguments that gays and lesbians can change their sexual orientation -- the gender to which they're attracted (orientation), and not just the gender with which they have sex (behavior). As I mentioned before, I'm very tentatively skeptical that this is possible, at least for most homosexuals; the tentativeness comes from my not having done any real research on the subject -- my judgment here is purely intuitive.

     But if this is possible, surely it would be good to research and publicize this. I say this not because I think gays ought to try to become straight; I'm fine with people being either. Precisely because I'm fine with people being either gay or straight, though, I think it's good if people can get to choose what they want to be. Even if sexual orientation is innate, I think that from an individualistic perspective (which I generally adopt, especially in such matters), that's a bug, not a feature. We should want people to have more choice in how they lead their lives, rather than being slaves to their physical reactions.

     Now I suspect that most gays wouldn't be happy to become straight -- that's fine, it would be their choice. But some might have a different view. They might have religious beliefs (which I don't share, but which they're entitled to have) that homosexuality is bad. They may be bisexual and married to someone they love, but find that their homosexual desires interfere with their happiness.

     They may want to raise their kids with both a male and a female parent, and conclude that it's easier to do that the old-fashioned way rather than coming up with some new system that works when one parent is homosexual. They may really, really want to please their parents, who disapprove of their homosexuality. They may want to avoid some of the social opprobrium that they might still face as homosexuals. Or they might live in some other country, where homosexuality can lead to very severe punishment, and want to avoid that punishment.

     Not all these reasons might be "worthy" -- but the point of being pro-choice, in the sense of generally wanting people to have more choices about important aspects of their lives, is letting people make even choices that I may disapprove of. Also, I realize that giving people this choice may cause social problems, for instance by imposing more pressure on some people to exercise such a choice even if they really don't want to. That, incidentally, is also an argument often made against abortion rights, the right to have premarital sex, the growing social acceptability of women working, and so on.

      But a pro-choice perspective suggests that we should generally not use this as a reason to limit people's choices -- that though extra choice may sometimes be harmful this way, on balance it's generally better to give people more choices, especially in matters that are very important in their lives. Naturally, there must be some limitation when the choices quite directly or seriously interfere with others' well-being, which of course is one of the arguments against abortion choice. But the strong presumption, I think, should be in favor of choice, and I don't think this presumption is rebutted here.

     So I think that people who are genuinely in favor of sexual autonomy (the heart, for instance, of Lawrence v. Texas) and individual choice should welcome research into whether gays can choose to become straight (or vice versa). Maybe after a huge amount of research has been done, we can conclude that further research is cranky. But I highly doubt that, in the merely 30 years since homosexuality stopped being listed as a psychiatric disorder, psychologists have really come to an iron-clad conclusion on the subject. So I think the cause of sexual autonomy, individual choice, and human dignity (in the sense of human ability to control their drives, rather than vice versa) is better served by serious inquiry into this, rather than by attempts to suppress such inquiry.

     See, incidentally, here for a presentation by Dr. Robert L. Spitzer, who is apparently a generally quite well-regarded Columbia University psychologist, which suggests that change in orientation might be possible -- I'm hardly persuaded by this, but neither can I say that this is obviously bunk.

 
[Randy Barnett, 11/12/2003 07:05:44 AM]
The Threat of Recess Appointments: The Hill is reporting today (link courtesy of Larry Solum's Legal Theory Blog via Rick Hasan's Election Law Blog) that Republicans are urging President Bush to attempt to end the filibuster of his judicial nominees by threatening to make recess appointments.

Conservative activists have for some time now juggled the idea of using recess appointments to circumvent adamant Democratic opposition. However, the idea appears to have gained momentum among lawmakers in the wake of numerous failed attempts to hold an up-or-down vote on several of the president's most qualified nominees. "This is something I've been pushing for," said Jon Kyl (Ariz.), chairman of the Republican Policy Committee, speaking of the recess option.

While some propose the appointment of already nominated judges such as Miguel Estrada and Charles Pickering, others have made a more radical suggestion:

An alternative to appointing nominees such as Pickering, Bush could appoint ultra-conservative alternates to fill vacancies on the bench. Such substitutes might make the blocked nominees seem less controversial by comparison.

"You could also fill the positions with interim appointments who could step aside [when blocked nominees clear the Senate.]" said Kyl, adding that the president could make a very good case for that option.

Some may recall that I made precisely this suggestion (though I never suggested "ultraconservatives") in National Review Online back in April in Benching Bork: How to End the War Over Judges. (Larry Solum has more on this option here.)

I view the more radical proposal to be far more practical than appointing nominees who have failed due to a filibuster. Appointing them would simply reward the Democrat's tactics by making their targets second-class temporary judges. Besides, most of these appointees would decline this "honor" as Estrada reportedly already has. The threat is not credible.

Appointing academics, or judges nearing retirement or with no hope of elevation to a higher court, could be a win-win maneuver. For law professors especially, it would be a like a advanced judicial sabbatical that they would not have to forgo tenure to experience. Given that these appointees will be smart and knowledgeable, they would be a bigger threat while on the Court than the appointees currently being held up. And given that they are more likely to accept, the threat of their appointment is more credible. Should the threat be executed, no serious candidates for life-tenured positions will be ruined, and the world may find that conservatives and libertarians make good judges after all.

But the point of this exercise is not to put these professors and judges temporarily on the bench. Indeed, I would not support for permanent appointments all those I listed as prospective recess appointees. The point is to end what Larry Solum has dubbed, the "downward spiral" we are in concerning judicial nominations, by giving Democrats an incentive to cooperate by promising floor votes on all judicial nominees. Only a credible threat will work, and only the more radical proposal is credible. In return, Republicans should pledge to change the rules of the Senate so the nominees of future Democrat Presidents receive an up-or-down vote on their judicial nominations. (The future vetting role of the Judiciary Committee in this process complicates things, but this too should be included in any negotiated settlement.) If all goes well, these recess appointments need never be made.

We can then move to what should be the most important issue: just who should be appointed to the bench? Dems have helpfully and appropriately raised the issue, but this is a debate in which Republicans have been unwilling or unable intellectually to engage. "Strict construction" and "enforcing, not making the law" are wholly inadequate and vacuous formulations of what an appropriate judicial philosophy should be. Similarly empty is "judicial activism."

I for one do not share the judicial philosophy of "judicial conservatives" (a term not to be equated with political conservatives). Just as "judicial liberals" (for want of a better term) would ignore those parts of the Constitution that do not comport with their view of Justice, judicial conservatives are willing to ignore the parts of the Constitution--such as the 9th Amendment and the Privileges or Immunities Clause--that do not comport with their vision of the Rule of Law. I favor enforcing the original meaning of the whole Constitution as amended, though I also freely acknowledge that where the Constitution is written at a high level of generality, it requires judicial construction (as opposed to interpretation) not inconsistent with its original meaning. Indeed, this partially open-ended character of the U.S. Constitution is one reason it has lasted so long and is worth preserving. But this is too large a topic to discuss in what has grown to be an overly long blog.

 
[David Bernstein, 11/12/2003 06:16:43 AM]
"Campus Truth": Another denunciation as "racist" the "Campus Truth" ad contrasting Israeli and Palestinian reactions to 9/11, this time at Yale, and an excellent response. (Disclaimer: The fact that I deem something an "excellent response" does not mean that I agree with the content or tone of every sentence in the piece.) UPDATE: Just noted that Instapundit had already linked to the "excellent response."

 
[David Bernstein, 11/12/2003 06:04:16 AM]
Sullivan: Andrew Sullivan is blogging up a storm today with excellent critiques of the Bush economic record and the proposed "Federal Marriage Amendment."

 
[Eugene Volokh, 11/12/2003 05:34:42 AM]
Tavis Smiley Show: I should be on this public radio show today, discussing the Guantanamo detention cases. They're calling me this morning, but I assume that it's for a taping; I don't know when the show will be aired (likely different times in different markets).

 
[David Post, 11/12/2003 05:32:31 AM]
Norton!: Actor Art Carney died yesterday. RIP. There've been a lot of wonderful things on TV over the years, but nothing, for my money, any greater than Carney's portrayal of Ed Norton on the original Honeymooners. The pairing with Jackie Gleason was simply magic; Carney and Jackie Gleason were a lot like Lennon and McCartney -- interesting and talented when apart, transcendent in tandem.

 
[Eugene Volokh, 11/12/2003 05:09:33 AM]
Sic transit gloria mundi: What do Samuel Blatchford, Ward Hunt, John McKinley, Smith Thompson, and Thomas Todd have in common? For the answer, see here (and don't drag the curser over the link, since the URL will give it away). And, no, I wouldn't have gotten this one, either.

Tuesday, November 11, 2003

 
[David Bernstein, 11/11/2003 09:22:27 PM]
Anti-Anti-Left-wing Extremists: Reading through some blog posts, emails, and accompanying comments responding to some of my recent posts, I notice that there are many "anti-anti-left-wing extremists" out there. Before the Soviet Union fell, many on the liberal left were "anti-anti-Communists;" they had no particular sympathy for the Soviet Union, but they generally neglected to criticize the Soviets, and also often criticized conservative anti-Communists. Anti-anti-Communists came in two basic flavors: (1) those who thought that Communism was a side issue, a distraction, compared to the real issues facing the U.S.--"How dare you focus on Communism when millions of people in the U.S. have no health insurance?!"; and (2) those who were concerned that any criticism of Communism would play into the hands of the "extreme" anti-Communists, who had too much influence over the government and were a greater threat to world peace and stability than were the Soviets.

So now we have "anti-anti-left-wing extremists" who come in similar flavors: (1) those who think talking about left-wing extremism is a distraction from the real issues facing the country ("how dare you talk about "the growing threat to civil liberties from antidiscrimination laws" when John Ashcroft is trampling on civil rights, the media is controlled by large corporations, and millions of people have no health insurance?!"): and (2) those who are afraid that any criticism of left-wing extremism will play into the hands of the already-way-too-powerful Bush (or in some cases, Sharon) Administration ("ANSWER isn't a threat to world peace, the Bush Administration is.").

My view is that left-liberals do themselves no favors by engaging in Popular Frontism with the likes of ANSWER or MEChA, or even in failing to vigorously condemn them. In the end, Howard Dean liberals and George Bush conservatives are all part of the same broad "liberal" family, while racialists, Communists, and other left-wing extremists are fundamentally illiberal, and should not be given any political quarter. It's shortsighted and a bit foolish to argue that because an ideological group lacks significant political power right now that it should therefore be ignored, even if it has a strong ideology, a foothold in some major societal institutions, and a record of success, especially on specific issues, elsewhere.

In the heat of ongoing political battles the fundamental consanguinity between liberal Democrats and conservative Republicans can be easily forgotten, but it shouldn't be. My political views are not especially close to either Dean's or Bush's but I'm not afraid that either of them would put me in a concentration camp if he had the power to do so.

(And yes, for the same reason both George Bushes should have tossed Pat Buchanan out on his tuchas and out of the GOP before he left on his volition, and conservatives who dally with groups like the Council of Conservative Citizens should be ashamed of themselves. And some conservatives went way overboard in their rhetoric on Clinton, just as some liberals are doing now with Bush.)

 
[David Bernstein, 11/11/2003 06:28:44 PM]
Jews and Communism: Regarding Eugene's post below, I've been told that Jews in Central and Western Europe were also highly overrepresented in "liberal" (in the European sense) movements, but I've never been able to find an adequate history of the subject. (Certainly in the U.S., Jews have been overrepresented in "liberalism"--Friedman, Nozick, Chodorov, Rothbard, Epstein, Von Mises, Szasz, to name a few, not to mention many of your friendly neighborhood Volokh Conspirators.) In Eastern Europe, liberalism was weak to non-existent, with the choice for political activists often among socialism, communism, and anti-Semitic "Christian" xenophobic nationalism. Not surprising that Jews identified with the "left" in Russia; anti-Semitism was the official policy of the czars--my maternal and my father's paternal ancestors fled from it. Jews were overrepresented among the Mensheviks as well as the Bolsheviks. Not knowing that Bolshevism was going to turn into Leninism, much less Stalinism, when it came down to the Reds versus the Whites (who slaughtered tens of thousands of Jews during the Civil War) I would have supported the Reds myself. UPDATE: Reader Mark Brady notes that in parts of Russia another option, a smaller group called the "Greens," was available. The label was applied to some wildly disparate movements, but it's hard to imagine that overall they could have been worse than the Reds or the Whites.

 
[David Bernstein, 11/11/2003 06:15:47 PM]
Drug War Insanity: I haven't noted my outrage at the stupidity, cruelty, and destructiveness of the Drug War lately, but this provides me with an opportunity to do so. I suppose that even if drugs were legal for adults, such incidents could still occur in high schools, but I'm sure it would be less common. When's the last time police acting like two-bit goons, guns drawn, raided a high school looking for beer or cigarettes?

 
[Eugene Volokh, 11/11/2003 06:05:31 PM]
Jews and Communism: A reader writes:

I wondered if you had already or would comment on this controversy in Germany. To be honest, until I read this and started doing some literature search, I had not realized that there were Jews involved in the Bolshevik revolution. . . .

I know that your background is from the Soviet Union, so you might have a particular [point of view] that would be pertinent here. To be honest, I remember railing against a former boyfriend in law school who maintained that Indira Gandhi's actions in India were a blot on women everywhere. I think that the German MP's remarks were very ill-advised, but I wonder if it was not overreaction on the part of the government. But as I say, I'd be interested in your take on the situation.

     I'm no historian of Communism, but my sense -- derived largely from my parents, who were anti-Communist Jews -- is that the Communist and Socialist movements were full of Jews. Marx, of course, was ethnically Jewish; so was Trotsky; and while I'm not sure how many other Soviet Communists were Jews, many Western ones were. (Look at some of the names in leading court cases: The Rosenbergs; Abrams; Stromberg; I can't be completely positive [some German names are German!], but I think these and many others were Jews. Another funny item -- if you look at Supreme Court obscenity cases, you find a huge number of Jewish defendants; Roth, Ginzburg, Ginsberg, Mishkin, and others. I have no explanation, there it is. Maybe we're just so darned sexy! Oh, never mind . . . .

     My parents' take on this is that we Jews are generally intellectual troublemakers (I say that part with pride), and generally somewhere on the Left (less pride there), whether moderate Left or far Left, so naturally a lot of Jews would gravitate towards this sort of far-Left intellectual troublemaking. One would expect a disproportionate number of Jews in many movements, and a doubly disproportionate number in this particularly nasty one, sorry to say.

     So the objection to the German legislator's comments can't be that Jews weren't in fact involved in the revolution and would-be other revolutions. Rather, it's that guilt is personal, rather than shared by all of a certain ethnicity. A Jew today isn't responsible for Jewish Communists; a white isn't responsible for slavery; a black isn't responsible for crimes by other blacks; a German isn't responsible for the actions of the Nazis. There are no guilty peoples, only guilty people.

 
[David Bernstein, 11/11/2003 05:37:09 PM]
I wouldn't have him arrested, but I'd punch him in the mouth... John Kerry thinks flag-burning should be legal (good), but feels the need to temper his defense of free speech by stating that "if I saw someone burning the flag, I'd punch them in the mouth because I love the flag" (bad). Meanwhile, Wesley Clark joins Dick Gephardt in supporting a constitutional amendment banning flag-burning.

 
[David Bernstein, 11/11/2003 05:21:49 PM]
Criminal "Hate Speech" Conviction for Willful Blindness: The Canadian case that got Prof. Martin so upset is R. v. Harding, 57 O.R. (3d) 333; 2001 Ont. Rep. LEXIS 376, in which the an Ontario appellate court upheld the defendant's (a Christian minister) criminal conviction for "wilfully [the court's spelling] promoting hatred against Muslims." To get an idea of the basis for the defendant's conviction, here is the court's description of one of the pamphlets that led to his conviction:

In the first pamphlet, entitled "Let's Take a Serious Look at What's Happening to Western [sic] High School" and addressed "Dear local resident", the appellant:
-- Describes horrific acts of violence committed by Muslims in other countries and comments that "[t]he Muslims who commit these crimes are no different than the Muslim believers living here in Toronto" and that he has found "no difference between the Muslims living here or anywhere else in the world";
-- Describes Muslims as "violent and hateful towards Jews, Christians and anyone else that denies or objects to their false religion" and states that "[t]he Muslim religion is full of hate and violence";
-- States that Muslims "sound peaceful and try to act peaceful, but underneath their false sheep's clothing, are raging wolves, seeking whom they may devour, and Toronto is definitely on their hit list";
-- Suggests that Muslims believe that polygamy "is allowed to any Muslim man in Canada or anywhere else in the world, as a Muslim man you just have to be able to afford them, like land or furniture, the more money you have, the more you can have";
-- Suggests that the auditorium at Weston Collegiate has been "turned into a mosque for the children to pray" and comments that "[t]eaching a false religion is always very dangerous, but teaching this particular violent religion in school to children is a very serious mistake".
-- States that the Muslim religion, and the fact that it is allowed in schools whereas Christianity is not, poses a "threat to our children".

I leave it to the reader's judgment whether such statements should lead to a criminal conviction with a potential jail sentence of up to five years.

Not only can you be convicted for such speech in Canada (note: the Canadian Supreme Court has not ruled on this case, and perhaps it would not agree with the outcome), you don't even have to intend to "promote hatred." Willful blindness, the court held, is sufficient for a conviction under the relevant statute. The Canadian Supreme Court originally upheld the relevant statute in the Keegstra case because it purportedly had a "stringent mens rea requirement." Willful blindness may not be an atypical standard in Canadian criminal law, but it's hardly "stringent" as mens rea requirements go. For example, in the U.S., tax protestors who sincerely believe the income tax is unconstitutional cannot be convicted of wilfull failure to pay income taxes if they were merely wilfully blind, as they all are.

For a discussion of the Canadian case holding that it's illegal to place or publish a newspaper ad quoting biblical verses condemning those who engage homosexual acts, see Eric Rasmussen's discussion here. While I disagree with Eric's views on gay-related issues, I am disturbed by the fact that the views he has previously expressed on his blog (discussed in the cover story in the 11/7 issue of the Chronicle of Higher Education) could land him in jail if he lived in Canada. (On the other hand, kudos to Canada for decriminalizing marijuana! UPDATE: An informed Canadian reader tells me that contrary to the way it's been reported in the U.S. media, Canada has not in fact decriminalized marijuana, and is unlikely to do so in the near future.)

 
[David Bernstein, 11/11/2003 03:52:56 PM]
More on Lochner: While I was away last week, I missed this additional excellent post on Lochner from Eric Muller at Is that Legal?

 
[Eugene Volokh, 11/11/2003 02:42:23 PM]
Over 20,000 unique visitors (as counted by eXTReMe Tracking) yesterday.

 
[Eugene Volokh, 11/11/2003 02:27:54 PM]
Monitoring of lawyer-client communications: Eric Muller points to an odd order requiring just that:

You may remember my post about the Wyoming lawyer who tried to get a client to pay him with sex.

Well, the Wyoming Supreme Court has now imposed interim disciplinary sanctions on the lawyer, pending a full bar investigation. . . . The lawyer is allowed to speak to female clients only if a third person is present to monitor the conversation.

Yup, that's right. Ordinarily the presence of a third party destroys the privilege, but in this case the state's highest court is mandating just that.

Now, to be sure, the court's order provides that "monitoring of these client conversations will be done in a manner to preserve their confidentiality." And maybe a Wyoming court would be obliged to treat the presence of a third party in this case as preserving rather than destroying the privilege. But would courts in other jurisdictions be obliged to do so? . . . Does it violate the equal p