Friday, February 20, 2004

 
[Eugene Volokh, 2/20/2004 05:10:13 PM]
Second Circuit judges' letter opposing Rule 32.1, for those still interested in this issue . . . .

 
[Eugene Volokh, 2/20/2004 04:04:21 PM]
Supreme Court agrees to hear Padilla ("dirty bomber") military detainee case: Not a surprise, especially given that the Court has agreed to hear Hamdi, the other U.S. citizen military detainee case. Thanks to How Appealing for the news.

 
[Eugene Volokh, 2/20/2004 01:16:02 PM]
A strange work to include in a gallery exhibit "designed to challenge anti-Semitism":

     Here's the story from Secular Blasphemy:

Galleri A Minor in Oslo, Norway, has removed an art work from its exhibition after a complaint from Israel's ambassador to Norway, Liora Herzl. The painting (above) shows the "S" in the words "Israel" and "USA" changed into a swastika.

[Gallery owner Andreas] Engelstad consulted Julius Paltiel, a leader for Judaism in Norway and one of only two Holocaust survivors living in this country, and thereafter decided to remove the painting from the exhibition out of respect for the victims of the Holocaust.

The artist, Chris Reddy, regrets the decision and argues the criticism betrays a lack of understanding of art and the purpose of art. He says you can't only think about the feelings of Holocaust survivors.

The exhibition was ironically one intended to draw attention to anti-semitism, especially the one conducted by Christians and Arabs in the name of God.

The name of the painting? "Anti Semite in the Name of God." Go figure. . . .

Read more details here.

 
[Eugene Volokh, 2/20/2004 12:59:50 PM]
A word of caution: I just got my California Bar card for the year (no, it's not a license to drink), and then read this 30 minutes later in Dangel, Contempt (1939), a treatise on Contempt of Court:

Contempt of court is a mysterious and indefinable offense and as easy to commit as it is liable to speedy and deserved punishment.

Let's be careful out there!

 
[Juan Non-Volokh, 2/20/2004 12:42:22 PM]
Pryor Appointment: The press is reporting that President Bush will install Alabama Attorney General William Pryor as a judge on the U.S. Court of Appeals for the Eleventh Circuit with a recess appointment. Readers of this space may recall that I am a Pryor fan (see here and here. I believe he has been unfairly maligned by his opponents, and that his record demonstrates his ability and commitment to separate his personal ideological views from his legal obligations. (A point he has reinforced recently. See here and here.) I believe he will be a splendid judge.

Nonetheless, I cannot say I am particularly happy about the appointment. While there is ample precedent for the recess appointment of federal judges, as documented in this Federalist Society White Paper, I am not a fan of the practice. I believe there is a qualitative difference between using the recess appointment power to fill vacancies within the President's own administration and using it to install judges. Thus, in my view, it was wrong when President Clinton gave a recess appointment to Roger Gregory, and it is wrong for President Bush to give one to Bill Pryor. Yet given the inmcreasing partisan acrimony over and obstruciton of judicial nominations, it is certainly understandable why the Administration chose to take this step, but it is no less regrettable.

 
[Jacob Levy, 2/20/2004 12:20:03 PM]
Kiddie Political Correctness Expert: I just got a phone call from a certain beloved children's educational television show (one that played a crucial part in my own graduation to literacy!), asking me whether there was any reason to be nervous about using the song "London Bridge is Falling Down." Edginess about nursery rhymes and old songs (e.g. "Eenie, Meenie") has apparently reached the point that it's safer to check out every one of them for potential offensiveness before use. I was apparently the right person to call becasue I both know something about English-British history and something about ethnic politics.

I reported, in case you're interested, that to the best of my knowledge its origins had no offensive overtones (it might be about one of the Norse invasions of England in the 11th century, might be about a birdge fire in the 13th) and-- unlike 'Eenie, Meenie'-- it hadn't picked up any offensive lyrics or connotations in the American interim, either.

 
[Eugene Volokh, 2/20/2004 12:14:58 PM]
If you're passing along a post to be read: Thought I'd mention this again -- if you want to pass along a post on your blog or on someone else's, I'd love to see it, but it's much easier if you include the text of the post as well as the post's URL. It doesn't take much time to click on a link, but on a slow connection, it does take some, and when one has dozens of messages to slog through, that extra time can make a difference (often the difference between looking at the text and not looking at it). I suspect that other bloggers have a similar perspective.

     And, while I'm talking about this, pitch the post, not the blog. If you have a blog that you think one of us might be interested, send a sample post that you think we might find particularly interesting (again, including both its text and its URL), rather than just a pointer to the blog as a whole. Thanks!

 
[Jacob Levy, 2/20/2004 10:31:05 AM]
Sputteringly funny: These have all been blogged by a number of other people, but I wouldn't want those of you wh read VC and only VC to be denied either of these stories.

1) The engineering student who inadvertently posed as an economics professor

2) The "brown-skinned kid who showed up at the Nazi rally wearing a "WHITE POWER" tee shirt"

(Hat tips, to pick the spots where I saw these first: Matthew Yglesias and Hit and Run, respectively.)

 
[Eugene Volokh, 2/20/2004 10:25:18 AM]
Fraction of couples that are same-sex: Clayton Cramer complains about "Credulousness In the Blogosphere": People are citing statistics that, for instance, "In California, 1.4 percent of the coupled households are occupied by same-sex partners," but he doesn't buy it:

Contrary to [Virginia] Postrel's claim that 1.4 percent of Californian households are gay couples, the actual number--92,138 same-sex couples in California, multiplying by two to get the number of people, and dividing by California's population--comes to about 0.55% of the population. I am very skeptical of the rest of the statistics that Postrel is quoting. I suspect that someone is looking at same-sex households, and assuming that these are all gay couples. They may well be roommates.

     Well, Cramer is right to point out that the story Postrel links to as the source of her statistics doesn't contain them -- sounds like a wrong link to me; the right one seems to be this one, which I found simply by doing a google search for the quote that Postrel gives (and it is, indeed, an AP story). But just a bit of online searching (I searched for "92,138 california" on the Census Web site) found me something even better -- the relevant Census document. Some observations:

1. The Census apparently does not assume that all same-sex households are gay couples. "These unmarried-partner households were self-identified on the census form as being maintained by people who were sharing living quarters and who also had a close personal relationship with each other. . . . [footnote:] In contrast, people who were sharing the same living quarters but were doing so just to share living
   expenses were offered the opportunity to identify themselves as roommates or housemates. [end footnote]" It's conceivable that the data erroneously includes siblings, who have a close personal relationship; I suspect that the Census wouldn't have been careful enough to distinguish roomates and housemates, but not have distinguished siblings or other blood relatives, but if I'm mistaken please let me know. [UPDATE: D'oh! Reader Eyal Barnea points out that the questionnaire is right there on the page, in a nice big inset that I somehow unaccountably skipped over. It definitely does distinguish siblings and other relatives from partners, so my suspicion that the Census is indeed focusing on couples and not just relatives or roommates is correct. "Unmarried partners" thus refers to people who are really identified by the respondents as partners.]



2. The article that Cramer quotes says, "To date, the Census Bureau has reported that there are 479,107 same-sex couples sharing a household. This number will rise when data from all 50 states is released." Apparently this has happened -- the national estimate is now nearly 600,000, out of nearly 60 million coupled households, or about 1%.



3. The California statistics are as Postrel reports them: 1.4% of all coupled households are same-sex partner households, 92,138 same-sex households out of a bit over 6.5 million coupled households.



4. Cramer's statement "Contrary to [Virginia] Postrel's claim that 1.4 percent of Californian households are gay couples, the actual number--92,138 same-sex couples in California, multiplying by two to get the number of people, and dividing by California's population--comes to about 0.55% of the population" (A) misstates Postrel's claim, and (B) misestimates the California data. First, Postrel didn't say that 1.4 percent of Californian households are gay couples; she said (quoting her source) that 1.4 percent of coupled households are gay couples. Cramer quoted this claim accurately earlier in his post but then misinterpreted it in his criticism. Second, Cramer's denominator, which is essentially the California population divided by 2, is neither the number of coupled households in California nor even the number of households, unless California is occupied by 34 million people neatly divided into 17 million couples. The total number of California households, according to the household, is 11.5 million; the total number of coupled households is a bit over 6.5 million.

Virginia Postrel is almost entirely right in her statistics (at least assuming the Census data is good); her only error is in her link. Clayton Cramer's criticism is misplaced -- and a couple of easy online searches would have given him the raw data that I describe above.

UPDATE: Clayton Cramer has acknowledged the error, and I much appreciate that. He then goes on, though, to argue:

This would suggest, however, that one of the arguments for gay marriage--the supposed stability that legal marriage would provide--isn't much of an argument. Homosexuals are about 3% or so of the population--and about 1.4% of couples. Unsurprisingly, half of these same-sex couples are female, even though homosexual men outnumber lesbians by perhaps three times.

I'm not sure I quite get this. Cramer correctly points out that some homosexuals are in couples even without marriage as an option. But the claim isn't "Without homosexual marriage, homosexuals can never form couples." Rather, it's that homosexual marriage makes it harder to form long-term couples. After all, even without heterosexual marriage, lots of men and women would live together as couples; but the assumption is that heterosexual marriage helps men and women do that, and also helps those couples last longer (perhaps even for the duration of the members' lives). That is also the argument made in favor of homosexual marriage. I just don't see how the data that Cramer now correctly cites undermines that argument.

Thursday, February 19, 2004

 
[Eugene Volokh, 2/19/2004 09:46:05 PM]
Investigations based on speech: Keepandbeararms.com is objecting that a gun rights activist is apparently being investigated by the San Francisco police for writing the following letter to government officials:

Disregarding Laws We Oppose
An Open Letter to San Francisco Civil Authority

By David Codrea
codrea4@adelphia.net

February 16, 2004

Dear Mayor Newsom (gavin.newsom@sfgov.org), Judge Warren (wsuperiorct@sftc.org) and Acting Chief Fong (sfpdpbaf@pacbell.net),

Mayor, I see you are authorizing city employees to perform homosexual marriages, Judge Warren, you are allowing them to proceed, and Chief Fong, you are allowing California law, as enacted by a vote of the people, to be publicly and repeatedly broken without making any arrests.

I'm not commenting on that issue, per se, so much as observing that you are all three instigating and abetting the violation of that law.

Judge Warren, you went so far as to state that you couldn't issue a restraining order to halt the marriages because, as Reuters reported, "there was not enough evidence presented showing that immediate damage would be done by allowing them."

Which leaves me with an interesting dilemma.

You see, I also belong to a group that is forced by social prejudices to keep a low profile?often times to hide my choices and practices lest I suffer disapproval and ultimately, life-threatening persecution by the state.

I am a gun owner and I live a gun owner life style.

I don't know if I was born with a tendency to be this way, or if it was an acquired disposition. All I know is, I don't see why I should be forced to change. Truth be known, I like owning guns, and am happy with who I am. I hope I suffer no repercussions by "coming out of the safe," but I just can't hide the truth any longer.

We gun owners have been living and working among you. Our kids go to school with yours. We may be your doctor, or minister, or your child's teacher. We may even work in city administration, or the courts, or on the police force. And we are sick of being abused for simply being who we are, all because of hoplophobic* prejudice and fear. We don't see any reason why we should have to put up with it any more.

Which brings me back to my dilemma and the reason I am writing you.

You have shown progressive thinking and tolerance for that which the majority condemns. So I was thinking of coming up to San Francisco and exercising my right to keep and bear arms, maybe showing up at City Hall with a state-banned AR-15 and a couple 30-round magazines, and also carrying several pistols concealed without a permit.

Yes, I know, it will be a violation of California laws, but you've shown that you're willing to disregard those when it serves your goals. And because I am a peaceable citizen, I should easily meet Judge Warren's criterion that no immediate damage would be done by allowing this.

So what do you think, if I visit your city and proudly display my lifestyle choices, can I count on your support? As a private citizen, don't I have as much right to disregard laws I find reprehensible as you public officials? Isn't that what equality is supposed to be all about, where no class of citizen enjoys privileges and immunities not extended to all?

How about it? You wouldn't have me arrested, would you?

Please let me know if I have your support.

Sincerely,
David Codrea

* Credit and gratitude to the peerless Col. Jeff Cooper for coining this term.

     I generally have a hard time getting particularly outraged about stories like this. Keepandbearms.com opens its report by saying:

Did you know that writing a rhetorical letter to the civil authorities in California challenging their hypocrisy results in a police investigation that includes not only calls from detectives but two black and white police cruisers coming to your home?

Well, saying that it's a rhetorical letter is assuming the conclusion. The police might strongly suspect that the letter is rhetorical, but it's hard to tell that for sure. And if it isn't rhetorical -- if the writer does want to show up with those guns -- and the writer also wants to do something with those guns when he shows up, then we could have a bad scene.

     If you were a responsible, freedom-loving police officer, would you just say "Nah, sounds like nothing to me"? Or might you think it's worth some more investigation? The letter-writer writes, as a follow-up, "I do find it bizarre that civil authority is so fearful of an armed citizenry that if they feel there is any chance of it happening, their response is to send armed men." Why is it so bizarre? Armed citizens have at times done quite a bit of damage, including to a past Mayor of San Francisco. That's not reason to disarm them or throw them in jail for writing letters -- but it is reason to look closely at people who say they want to carry an arsenal to city hall.

     Of course, people can point out that even investigation -- in this case, a phone call from the San Francisco police, and two police cars sent to the person's home, which left after they confirmed that the S.F. police had talked to him -- can be disquieting to the target. Some people might decide not to write letters like that (letters which I think should be and are fully constitutionally protected against suppression) for fear of drawing the police department's attention. No doubt about that.

     But freedom of speech can't mean freedom from even disquieting investigations based on your speech. You can't be convicted for that letter; you can't be fined for it; but the police are entitled to talk to you to see whether you seem like an upstanding citizen (which by all accounts the author is) or someone who seems like a John Hinckley, and who therefore bears closer watching. Extremist groups are entitled to express their views; but I certainly hope that the police are investigating them more closely to see whether there might be extremist action, and not just extremist speech, in the offing. Likewise even for perfectly reasonable people who make statements that are also of the sort sometimes made by unreasonable people. It's part of the police department's job to investigate a bit more closely to see whether the speaker seems reasonable or unreasonable.

     This having been said, I stress again that Codrea is entitled to write his letter, and not get actually legally punished for it. If there's any attempted punishment (and I know that there have been some incidents where speakers have been punished based on alleged threats that probably didn't merit punishment), I'll gladly speak up in his defense. Likewise, he's certainly entitled to publicize the police department's actions; it's probably good that he's doing so.

     I just won't feel too bothered by what the police did, at least based on the account that the site provides.

 
[Eugene Volokh, 2/19/2004 06:18:25 PM]
"What about the children who have suffered in Iraq?" Harry Belafonte is defending Michael Jackson, and condemning the media:

Calypso singer and civil-rights promoter Harry Belafonte was in Nairobi when he spoke out praising Jackson, saying that “no single individual has had influence in the world” like the embattled pop star, who is facing child molestation charges.

“Michael Jackson is innocent until proven guilty by the court of law,” Belafonte [said] . . .

“I cannot charge my colleague on the basis of media reports and television programs.”

Belafonte also lashed out at American news organizations’ “insatiable appetite” for the Jackson scandal.

“This is [a] travesty of journalism,” he said. “It is inappropriate for the media to start asking what ifs and what abouts [about Jackson]. What about the children who suffered in Iraq?”

     I agree: It is much more important for the media to talk about the children who suffered in Iraq -- and about how the liberation of Iraq has dramatically increased their prospects for free speech, religious freedom, the right to vote, and other civil rights -- than to focus on Michael Jackson.

 
[Eugene Volokh, 2/19/2004 02:12:29 PM]
Proposed Rhode Island Homeland Security Act is available here. I don't have the time to blog about it much right now, except to say that many of the ACLU criticisms of it are quite apt. Gov. Dan Carcieri, whose office proposed the bill, deserves to be harshly criticized for this.

UPDATE: The Governor has withdrawn the bill; thanks to How Appealing for the pointer. Note also that this morning's Providence Journal article on the bill was quite flawed; among other things, it claimed that

Carcieri has proposed, among several other steps, making it illegal in Rhode Island to "speak, utter, or print" statements in support of anarchy or government overthrow.

His proposal would make it unlawful for any person "to teach or advocate" a government overthrow, or display "any flag or emblem other than the flag of the United States" as preferable to the United States government.

In fact, the bill wouldn't have made that speech illegal, but would have simply added other provisions to existing Rhode Island laws that already purport to make the speech illegal. It's still a lousy bill -- among other things, it would have added new speech restrictions, and one could certainly fault it for simply adding to unconstitutional statutes, rather than repealing them and replacing them with new ones. But the newspaper's literal description of what the bill would do was quite wrong. Justin Katz is likewise upset with the newspaper for this.

 
[Sasha Volokh, 2/19/2004 01:30:57 PM]
Technology watch: Here's what I want, one day. Something like an iPod, where I can store a ton of audio files and, say, play it on "random," with the following features:

• I get to put files into categories and randomize within categories only, i.e., "randomize within Classical," or "randomize between Classical and Rock 50-50, and randomize within each category."



• I get to rate audio files, and the rating affects the probability that a piece gets played in the future, i.e. a "1" gets chosen rarely while a "5" gets chosen more often.

Does that exist, and if not, is someone working on this?

 
[Eugene Volokh, 2/19/2004 01:26:22 PM]
More on the "Vagina Warriors" protest: From Chris at Work in Progress, some comments on "Not all vaginas are skinny, white + straight" (actual quote from a protester's T-shirt).

 
[Randy Barnett, 2/19/2004 12:42:03 PM]
The 9th Amendment in the Blogsphere: A lively debate on the original meaning of the Ninth Amendment has broken out on Southern Appeal (here, here & here) and is spreading throughout the blogsphere (for some links click here). As is to be expected in a blog debate, it is long on confident assertion and a little short on comprehensive discussion of the historical evidence. When making historical claims about original meaning, evidence really matters and cannot comprehensively be presented in a blog--which is why I have been staying quiet. But as others have queried me for my reaction, I will note a few items that should be of interest. For those who want a more extensive explanation of this, I devote two chapters of Restoring the Lost Constitution: The Presumption of Liberty to the meaning (Chapter 3) and mandate (Chapter 9) of the Ninth Amendment.

The first concerns the meaning of "retained" rights and is found in the beginning of an amendment proposed by Roger Sherman, who served with Madison on the House Select Committee that drafted the Bill of Rights. It read:

"The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States."

This is not a reference to limited federal powers or to state constitutional rights, but to the inherent liberty rights of the people which no government can properly infringe.

Second, when proposing amendments to the Constitution in Congress, Madison explained that constitutional rights were of two kinds. Natural rights retained by the people--such as the right of freedom of speech--and positive rights created by the Constitution itself. And, in his precursor to the Ninth Amendment he explained how constitutional rights have two distinct functions:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

In other words, some enumerated rights provided additional or “actual limitations” on the delegated powers beyond those that already existed. In his speech to the House, Madison categorized these actual limitations as “positive rights” and gave the example of trial by jury. Second were those rights that were enumerated “merely for greater caution.” As Madison explained, these refer to “those rights which are retained when particular powers are given up to be exercised by the Legislature.” In his handwritten notes to this speech, Madison refers to these “rights which are retained” as “natural rights” and gives as an example of such a natural right, the freedom of speech.

Thus, according to how Madison used the terms “retained” rights we know that the “other” unenumerated rights “retained by the people” mentioned in the Ninth Amendment fall into the second category of his original proposal. They are the natural rights “which are retained when particular powers are given up to be exercised by the Legislature.” A very few of these rights were included in the Bill of Rights “for greater caution” but most were left unenumerated. They were not left textually unprotected however. The textual source of that protection was, initially, the limited powers scheme and the Necessary and Proper Clause, and soon thereafter the enumeration of certain rights coupled with the Ninth Amendment. Remember that for 2 years there was no Bill of Rights, and ALL retained rights were unenumerated. Laws restricting speech and other natural rights would nevertheless have been "improper" under the Necessary and Proper Clause.

The 9th Amendment is functionally distinct from the 10th Amendment, as Madison himself made clear in his speech to the House objecting to the constitutionality of the national bank. There after arguing that the bank was not necessary (under the Necessary and Proper Clause), he added:

"The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. . . . He read several of the articles proposed, remarking particularly on the 11th [the Ninth Amendment] and 12th [the Tenth Amendment]; the former, as guarding against a latitude of interpretation; the latter, as excluding every source of power not within the Constitution itself."

In other words, the 10th Amendment limited Congress to its enumerated powers, while the Ninth Amendment argued against a lattitudinarian interpretation of these powers, either because a construction of a power exceeds the proper end of government or because a power is being implemented by improper means. Of particular significance is that Madison made this argument though no one has previously claimed greater constitutional power in Congress on account of the existence of enumerated rights--the view of the Ninth Amendment advanced by Professor Thomas McAffee of UNLV and by Owen of Southern Appeal.

In Restoring the Lost Constitution, I propose we can implement the original meaning of the Ninth Amendment (and the Privileges or Immunities Clause of the 14th) by adadopting a "Presumption of Liberty" that would place the burden on the government to show that its laws were necessary to achieve a proper end. At the federal level the ends are provided by the enumerated powers; at the state level by a proper conception of the police power. But this doctrine would be a construction of the Constitution--as is the current "presumption of constitutionality"--and not an interpretation of the original meaning of either the Ninth Amendment or the Privileges or Immunities Clause. There is much more to say, of course, on this topic than can be said in a blog--like the interesting question of judicial power--but that is why we write law review articles and books. For better or worse, man does not live by blogs alone.

UPDATE: Here is a new interesting post by Tim Sandefur who has been doing a nice job defending the original meaning of 9th Amendment in this debate.

UPDATE 2: An excellent post by Trivial Pursuits on the relationship between the 9th Amendment and the Privileges or Immunities Clause. In Chapter 3, I present copious evidence that "privileges or immunities" was a reference both to unenumerated rights or immuniities and also to new positive rights or privileges created by the Bill of Rights and other laws, a distinction corresponding with Madison's distinction between natural "retained" rights and "positive" rights. And he has a nice post on the tyranny of the majority here.

 
[Michelle Boardman, 2/19/2004 11:45:53 AM]
Ride the Metro, Agree with the Government: Part of the Consolidated Appropriations Act of 2004 (Public Law 108-199, HR 2673, January 23, 2004):

SEC. 177. None of the funds in this Act shall be available to any Federal transit grantee after February 1, 2004, involved directly or indirectly, in any activity that promotes the legalization or medical use of any substance listed in schedule I of section 202 of the Controlled Substances Act . . .

In other words, the Washington D.C. Metro, among others, cannot display anti-drug-law ads without foregoing large sums in federal subsidies. According to the ACLU, Metro has at least $85 million to lose, and has already declined to run an ad critical of existing marijuana laws. It doesn't look like Metro has publicly stated that the new law was behind its decision.

Yesterday, the coalition group seeking to run the ad sued the U.S. Government, Metro, and Transportation Secretary Mineta. They seek a preliminary injunction and a declaration that the law violates the First Amendment. I will leave the First Amendment analysis to Eugene, should he wish to take it, but from a sheer public policy standpoint I'm with the ACLU on this one.

Whatever one thinks of the drug laws, the federal government should not be able to use public funds to protect itself from criticism.

 
[Eugene Volokh, 2/19/2004 11:32:19 AM]
Jail time for city officials who solemnize gay marriages? California Penal Code sec. 359 (thanks to Xrlq, who has more comments, for the pointer) provides:

Every person authorized to solemnize marriage, who willfully and knowingly solemnizes any incestuous or other marriage forbidden by law, is punishable by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the County Jail not less than three months nor more than one year, or by both.

Does that mean that city officials who solemnize gay marriages are acting not just contrary to law, but also criminally? (Lots of actions may be against the law but not criminal; they might be remediable only through damages in a civil lawsuit, or through an injunction or a writ of mandamus.)

     Hard to tell for sure, even if the officials sincerely believe the argument that the California Constitution guarantees to gays an equal right to marry. Though ignorance of the law is usually no excuse, when a statute refers to "willfully and knowingly . . . [violating the] law," courts generally (though not always) treat this as limiting the statute to people who violate what they know to be a legal duty or constraint. See, e.g., Liparota v. United States (1985). Moreover, since "law" generally refers to constitutional principles as well as to statutory rules, I think that if the solemnizers sincerely (even if wrongly) believe that gay marriages are not actually "forbidden by law" (since the statutes that purport to forbid them are unconstitutional and thus not really law), they wouldn't be committing a crime.

     On the other hand, at least to tax law, the Supreme Court has held that belief that the law is unconstitutional doesn't keep the violation of the law from being willful. See Cheek v. United States (1991). The language in that statute was somewhat different than that in the California statute or the statute at issue in Liparota, so it's not clear how squarely on point the Cheek decision would be; but it does at least suggest that the solemnizers might be guilty even if they sincerely believed the male-female-marriage-only requirement was unconstitutional.

     Note, though, that all this is based on my knowledge of federal statutory construction principles. I think that California courts take a similar view, see, e.g., People v. Hagen, 19 Cal. 4th 652, 660-66 (1998). Cal. Penal Code sec. 7 defines willfully as: "The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." But as Hagen pointed out, the definition is limited by the proviso "unless otherwise apparent from the context"; the language "willfully and knowingly solemnizes any . . . marriage forbidden by law" seems to contain such other context, since someone who believes the marriage isn't forbidden lacks the purpose or willingness to solemnize a forbidden marriage. Note also that, since these are questions of statutory construction, courts may reach different results depending on the particular text, context, or history of the statute.

     Finally, all this is really academic, unless a prosecutor actually decides to prosecute the officials involved -- and I somehow doubt that this will happen.

 
[David Bernstein, 2/19/2004 10:29:44 AM]
PC at UNC: Student at UNC expresses religious objections to homosexual conduct and criticizes homosexuality as "disgusting" in class. Professor sends out an email to the entire class lambasting this student:

"what we experienced, as unforuntate (sic) as it is, is, however, a perfect example of privilege. that a white, heterosexual, christian male, one who vehemently denied his privilege last week insisting that he earned all he has, can feel entitled to make violent, heterosexist comments and not feel marked or threatened or vulnerable is what privilege makes possible."

The professor adds that such "hate speech" creates a "hostile environment" and will not be tolerated in her class. Another example of PC run amok? Not quite. James Thompson, chair of the English Department, responded to complaints as follows:

Thank you for your concern. I understand that news of this incident is distressing to anyone interested in higher education and free and open speech. We are here at UNC to promote responsible and respectful exchange, not to discourage or censor it. The original email should not have been sent out, and the instructor has apologized. I will be monitoring the class closely for the rest of the semester.

I think a professor has the right to keep classroom discussion civil, including by politely admonishing students who call the ingrained sexual preferences of their colleagues "disgusting." But the intemperate email went way over the line, making the student an example of a type of person who needs to be silenced. The professor in question is awfully lucky that the student she lambasted apparently chose not to file a formal complaint with the Department of Education charging her with creating an illegal hostile educational environment for white male Christians. I of course am against such uses of hostile environment law, though in this case it would nevertheless be poetic justice.

 
[Eugene Volokh, 2/19/2004 10:06:30 AM]
Automatically checking people before letting them use their own property: Many people are outraged by the New Mexico proposal to require all cars to be equipped with breathalyzer interlocks, so that a car owner would have to be breath-tested before he can use his car. The bill has passed the New Mexico House of Representatives, but the ACLU and others are strongly objecting to it.

     How different is this, though, from some of the proposed "smart gun" requirements under which new guns would have to be equipped with fingerprint (or grip) recognition interlocks, so that the user would have to be checked to make sure his fingerprint matches the authorized print?

     It's true that the breathalyzer would aim to check a person's sobriety, while the fingerprint recognition system would just check his identity. Still, both are checks of the person's body aimed at screening out illegal users. Consider:

Breathalyzer interlock for cars	Fingerprint recognition interlock for guns
Intended to prevent use of car by dangerous (drunk) users.	Intended to prevent use of gun by dangerous (child, thief) users.
When properly functioning, screens out only dangerous users (assuming all users with blood alcohol above the legal limit are at least fairly dangerous).	When properly functioning, also screens out safe users, for instance when the gun owner shouts to a trusted visitor "Quick, get the gun and protect yourself."
Will probably sometimes malfunction, screening out legal users.	Will probably sometimes malfunction, screening out legal users.
When it malfunctions, the result will usually be just a hassle, but will sometimes prevent life-saving uses (for instance, when you need to drive someone to the hospital).	When it malfunctions, the result will sometimes be just a hassle (for instance, at the shooting range), but will sometimes prevent life-saving uses (for instance, when you need to defend yourself or your family against a criminal).
"We are concerned that if you've got to sort of go through a mini search every time you drive your car," says Reber Boult [of the local chapter of the ACLU]. "That's very invasive."	Would require you to sort of go through a mini search every time you want to use your gun, which is equally invasive (or equally non-invasive, if you aren't troubled by either).
A bit under 44,000 people a year are killed in motor vehicle accidents (2001 data).	A bit under 30,000 people a year are killed using guns; this breaks down into 17,000 gun suicides, 11,000 gun homicides, and 1000 accidents (2001 data). Probably 1000 to 3000 of these are legal killings by the police or by people acting in self-defense.
Apparently about 13,000 people a year are killed in motor vehicle accidents that involve drinking.	Probably several thousand people a year are killed by guns that are used by unauthorized users (some involving children and most involving thieves), though no-one knows the exact amount.
There is no constitutional right to drive a car.	There is a hot debate about whether the Second Amendment secures a constitutional right to have a gun; 44 of the 50 state constitutions secure a right to have a gun, and most of those quite explicitly secure individual rights.
Cars don't just have one purpose -- killing people -- but are overwhelmingly used lawfully.	Guns don't just have one purpose -- killing people -- but are overwhelmingly used lawfully (for target-shooting, for hunting, for self-defense against animals, and for self-defense against people, which almost never involves an actual killing).

Now perhaps this shows that both breathalyzer interlocks and gun fingerprint interlocks are good ideas. But it does suggest that people who oppose one should probably oppose the other as well. Incidentally, I'd be delighted to see and post any quotes from ACLU chapters that have similarly complained about gun fingerprint interlocks.

     Thanks to Robert Racansky for inspiring me to think about this today, though his approach is somewhat different from mine.

 
[Jacob Levy, 2/19/2004 08:06:02 AM]
Response and rejoinder: Justin Katz has a response to my TNR argument about the Federal Marriage Amendment. Not much by way of rejoinder. But if the following matters a great deal:

The problem with this arises when one realizes, having read the Federal Marriage Amendment dozens of times, that nowhere therein are the words "civil union."

then I don't see how this follows:

Consider, a state legislature could pass that CUA of '04 granting couples merely the right to a slip of government-stamped paper with the partners' names and a big smiley face sticker on it. There being nothing in the FMA about smiley-faced papers, and the judiciary not having the power to insist that stamping them is a service that the state must offer, we see how a legislature could do what the courts could not.

Of course, the "incidents of marriage" phrase is the rub. But here again, the principle holds, because the legislature could grant specifically enumerated rights to civil unions — without reference to marriage — thereby making those rights no longer exclusively "incidents of marriage." Imagine that the state's marriage licenses happen to be the only official documents that are currently marked with smiley faces. The FMA would forbid a judge from declaring that civil unions deserve to be marked with the same stickers on the basis that they are used for marriages. However, the legislature could simply define the visual approbation as a newly minted incident of civil unions

If "incidents of marriage" really has nothing to do with civil unions, then it has nothing to do with them for either the legislature or the judiciary. And the judiciary, empowered to construe the Civil Unions Act as granting some privileges to gay couples because those privileges are not incidents of marriage, must also be empowered to construe other sources of law as granting, or requiring the grant, of those privileges. Sources such as a nondiscrimination or equal protection clause in a state constitution. On what I think is Justin's argument, the FMA would not limit the judiciary from doing so, because those privileges aren't incidents of marriage.

The smiley-face stamp is in a sense unhelpful because it's both symbolic and wholly novel. Any civil unions created by the legislature that included any right or privilege traditionally associated with marriage forces the judiciary to decide: have "incidents of marriage" been distributed here? If so, then the judiciary must construe the statute as not doing what it purports to do, i.e. creating civil unions. If not, then those rights aren't incidents of marriage, and they might be awarded to gay couples on the basis of equal protection challenges without the Civil Unions Act intervening at all.

(Justin may have the last word, if he likes; I've got teaching and grading days in my immediate future.)

 
[Sasha Volokh, 2/19/2004 08:01:15 AM]
Vole Story: Here and here. Also, a libertarian who thinks some Texans are stupid.

Wednesday, February 18, 2004

 
[David Bernstein, 2/18/2004 08:29:03 PM]
Intolerance at Yale Law School: From the Yale Daily News (via How Appealing):

"I would say I'm a centrist, but when I got to law school I found myself to be conservative [by comparison]," Muzin said. "I find that the student body here is ultra-liberal and extremely intolerant; I realized it shortly after I started here."

But Cooke said he has not felt isolated as a self-proclaimed conservative and does not think the Law School is a "bad environment" for those who share his views.

"I've really enjoyed my time here. I've never felt terribly intimidated," Cooke said.

The more things change, the more they stay the same. I also enjoyed my time at Yale Law, never felt "intimidated," and didn't think it was a bad environment for a libertarian like myself, largely because the faculty was quite tolerant, and often well-versed in free market and libertarian arguments even when they disagreed with them. The students, however, were, as a group, extremely left-wing, and extremely intolerant. A classmate of mine, now a law professor, told me recently that half of my first-year class wouldn't speak to me first semester of law school, for political reasons. I thought half sounded like a lot, though I knew I was "boycotted" by some at the time. I had always been mildly curious as to why (it didn't bother me much at the time because my mother was gravely ill in NYC that semester, so my social life consisted of trips to Mt. Sinai Hospital in any event), so I asked this classmate, who was himself quite left-wing, but always friendly. He responded, "Well, it's what you said in Contracts." "That's strange," I replied, "I don't remember Contracts class being that controversial; we didn't discuss any of the truly hot button issues for the left--such as race, abortion, gay rights--in Contracts--and, in any event, my (libertarian) views on such issues wouldn't have been so objectionable to them, anyway. So what did I say in Contracts class that led to my ostracism?" He said, and I swear he seemed at least 80% serious, "well, you kept saying that contracts should be enforced!"

 
[Randy Barnett, 2/18/2004 08:23:11 PM]
Bush's Military Service: Byron York has an excellent analysis of the evidence concerning the President's service in the National Guard: Bush and the National Guard: Case Closed. In addition to analyzing the evidence concerning Bush's last year in the Guard, it adds some additional information of which I was unaware. having simply been following this in one media story after another.

The controversy over Bush's service centers on what his critics call "the period in question," that is, the time from May 1972 until May 1973. What is not mentioned as often is that that period was in fact Bush's fifth year in the Guard, one that followed four years of often intense service.

Bush joined in May 1968. He went through six weeks of basic training — a full-time job — at Lackland Air Force Base in San Antonio, Tex. Then he underwent 53 weeks of flight training — again, full time — at Moody Air Force Base in Valdosta, Ga. Then he underwent 21 weeks of fighter interceptor training — full time — at Ellington Air Force Base in Houston. Counting other, shorter, postings in between, by the end of his training period Bush had served two years on active duty.

Certified to fly the F-102 fighter plane, Bush then began a period of frequent — usually weekly — flying. The F-102 was designed to shoot down other fighter planes, and the missions Bush flew were training flights, mostly over the Gulf of Mexico and often at night, in which pilots took turns being the predator and the prey."If you're going to practice how to shoot down another airplane, then you have to have another airplane up there to work on," recalls retired Col. William Campenni, who flew with Bush in 1970 and 1971. "He'd be the target for the first half of the mission, and then we'd switch."

During that period Bush's superiors gave him consistently high ratings as a pilot. "Lt. Bush is an exceptional fighter interceptor pilot and officer," wrote one in a 1972 evaluation. Another evaluation, in 1971, called Bush "an exceptionally fine young officer and pilot" who "continually flies intercept missions with the unit to increase his proficiency even further." And a third rating, in 1970, said Bush "clearly stands out as a top notch fighter interceptor pilot" and was also "a natural leader whom his contemporaries look to for leadership."

All that flying involved quite a bit of work. "Being a pilot is more than just a monthly appearance," says Bob Harmon, a former Guard pilot who was a member of Bush's group in 1971 and 1972. "You cannot maintain your currency by doing just one drill a month. He was flying once or twice a week during that time, from May of 1971 until May of 1972." While the work was certainly not as dangerous as fighting in the jungles of Vietnam, it wasn't exactly safe, either. Harmon remembers a half-dozen Texas Air National Guard fliers who died in accidents over the years, in cluding one during the time Bush was flying. "This was not an endeavor without risk," Harmon notes. . . .

The president's critics have charged that he did not show up for service — was "AWOL" — in Alabama. Bush says he did serve, and his case is supported by records showing that he was paid and given retirement credit for days of service while he was known to be in Alabama. The records also show that Bush received a dental examination on January 6, 1973, at Dannelly Air National Guard base, home of the 187th (January 6 was one of the days that pay records show Bush receiving credit for service). And while a number of Guard members at the base say they do not remember seeing Bush among the roughly 900 men who served there during that time, another member, a retired lieutenant named John Calhoun, says he remembers seeing Bush at the base several times.

What seems most likely is that Bush was indeed at Dannelly, but there was not very much for a non-flying pilot to do. Flying fighter jets involves constant practice and training; Bush had to know when he left Texas that he would no longer be able to engage in either one very often, which meant that he would essentially leave flying, at least for some substantial period of time. In addition, the 187th could not accommodate another pilot, at least regularly. "He was not going to fly," says Turnipseed. "We didn't have enough airplanes or sorties to handle our own pilots, so we wouldn't have done it for some guy passing through."

On the other hand, showing up for drills was still meeting one's responsibility to the Guard. And, as 1973 went along, the evidence suggests that Bush stepped up his work to make up for the time he had missed earlier. In April of that year, he received credit for two days; in May, he received credit for 14 days; in June, five days; and in July, 19 days. That was the last service Bush performed in the Guard. Later that year, he asked for and received permission to leave the Guard early so he could attend Harvard Business School. He was given an honorable discharge after serving five years, four months, and five days of his original six-year commitment.

Apologies for the length of this post, but there is even more detail in the whole article about what the records show.

 
[David Bernstein, 2/18/2004 07:36:05 PM]
Employed at a state university: Heaven help me if the fact that I'm employed at a state university stopped me from pointing out (as Juan, tongue-in-cheek (I think), implies that it would) that state universities create inherent civil liberties problems when they, as they must, engage in content-based speech regulations. For that matter, it shouldn't stop me from pointing out that there are likely better things to do with tax dollars than subsidize the education of indviduals likely to earn well-above the median income in the future (i.e., law students) by running state law schools with low tuition rates (note to Gov. Warner: privatize GMUSL, please!), although it's possible the gets its money back and more when these students become taxpaying attorneys (most of whom stay in Va.). Even worse, in a proper libertarian society, my job, which I love dearly, would likely not exist, at least not in its current form--the ABA, which is in charge of accrediting law schools, puts a high premium on law schools having full-time faculties that spend relatively little of their time teaching (they are supposed to spend much of the rest of their time engaging in scholarship; some, like almost all my colleagues, do, while many others do... well I'm not exactly sure what, I guess everything from university service to practicing law on the side to doing pro bono work to coaching their kids' little league teams to the one professor at a prominent "top 10" school who told me he yachts during the school year and travels during the Summer), but there is no reason to believe that education consumers in a free market would concur.

 
[Eugene Volokh, 2/18/2004 06:09:10 PM]
When bad people support good ideas: The University of Michigan student newspaper reports that the KKK has endorsed the anti-race-preferences Michigan Civil Rights Initiative. The MCRI campaign manager sensibly points out that the MCRI has no control over what other groups say; but, the article says,

Receiving support from a group that opposes civil rights has raised questions about MCRI's commitment to the ideals of equality.

MCRI asserts that the purpose of its ballot initiative is to guarantee equal protection under the law, regardless of race, ethnicity or sex. For this reason, the group presents itself as a civil rights initiative, heralding the ideals of Dr. Martin Luther King Jr. In numerous interviews, O'Brien has invoked the activist days of the '60s. He has often quoted King?s idea that "individuals should be judged not by the color of their skin but by the content of their character."

MCRI's connection to King is evident in its mission statement and its petition methods. "Our goal is to finally realize the promise made four decades ago with the signing of the 1964 Civil Rights Act," the statement reads.

"It should be unconstitutional to discriminate," O?Brien said.

But the KKK does not regard the civil rights era with such esteem. The group's website contains a picture of King overlaid by a red line. The picture links to a website urging members to protest King's birthday, claiming that the civil rights leader was a "womanizing promoter of race-mixing and 100 percent communist."

     I wonder how people would take similar arguments about other evil groups. "Receiving support from NAMBLA has raised questions about a proposed gay rights initiative's commitment to the ideals of consent and voluntarism." Or, more to the point, "Receiving support from the Communist Party has raised questions about the civil right's movement commitment to the ideals of democracy and freedom" (an argument that was surely often made during the civil rights era, and that the KKK still seems to be implicitly making today).

     In a free country, evil people can endorse even good causes -- and the good advocates of the good cause have no way of silencing the evil people. People sometimes joke that "If so-and-so supports this cause, then I oppose it"; but obviously that can only be a joke. Even a stopped clock is right twice a day. That's why arguments that "receiving support from a group" (when the support is just an endorsement, and not, say, a contribution that one is free to return) "has raised questions" about the recipient are pretty bogus.

     Thanks to Howard Bashman for the pointer.

UPDATE: Just to make it clear, I'm referring here simply to unsolicited support from the bad guys. I do think that the MCRI shouldn't organize rallies with the KKK, or endorse the KKK's views, or even accept any contributions from the KKK when it can return them -- there are some groups that are so evil that one ought not work with them even when they happen to share your views on a good cause, and the KKK falls into that category. Movements are properly faulted for those groups that they choose to actively associate with -- just not for those groups that endorse the movement, in a way entirely outside the movement's control.

 
[Sasha Volokh, 2/18/2004 05:56:51 PM]
Be careful what you ridicule: Jack Balkin says, responding to Juan's and Glen's posts (paragraph break inserted):

Glen's assertion that goverments should never be in the business of deciding which ideas are good and which are bad is much too broad. To a very large extent governments are in the business of deciding which ideas are better than others, because that is the basis on which they enact (or should be enacting) public policy. Moreover, governments are always in the business of promoting some ideas over other ideas.

Does Glen seriously want to blow up the Washington Monument or the Lincoln Memorial? To keep children from visiting said memorials on the grounds that they will be unduly influenced to think that Washington and Lincoln were great presidents? Does he think that there is something nefarious in government officials asserting that democracy is good and tyranny is bad?

(Would he object to the creation of a government program designed to promote belief in democratic forms of government over non-democratic forms? Does he believe that President Bush was wrong to give a speech advocating democracy and freedom for the rest of the world? Does he think government should not encourage the populace to engage in healthier habits through reporting the results of government funded health studies?)

Be careful what you ridicule as reductio ad absurdum, though; I, for one, am sympathetic to the reductio. (See my previous post for an intro to my thinking. Note that I'm not talking about any constitutional issue here related to compelled speech or the like; I'm only talking about general moral/political principles, which may be unenforceable through the Constitution.)

Government health studies, I'm definitely unsympathetic to, because I don't like the idea of government encouraging certain lifestyles over others.

I also don't like monumental architecture; in fact, it's the most naked example on the list of government indoctrinating its people with a pro-it ideology. (My views on monumental architecture are similar in this way to my views on the Confederate flag. The controversial nature of the Confederate flag is already well known; and so, thank God for all the radicals, mostly on the left, for reminding us that even the regular U.S. flag should be seen as just as ideological.)

What might possibly save monumental architecture (though definitely not the Confederate flag), and may also save pro-democracy programs and speeches both at home and abroad, is that we can come up a rights-protecting justification for them: yes, it would otherwise be wrong for government to push these ideologies, but it's using these programs to protect more valuable rights, to the extent we believe that these programs actually promote liberty at home or abroad or protect American lives by undermining hostile regimes, or what have you.

I'm more inclined to believe this story for Voice of America than for the Washington Monument. And "blow up" is such an ugly word. We have plenty of monumental architecture already. Let's sell them off to professional tourist-attraction management companies, and just not build any more.

 
[Juan Non-Volokh, 2/18/2004 05:31:09 PM]
Assessing Balkin's Case for Public Universities: Jack Balkin has a thoughtful reply to my critique of his case for public universities. He accepts a portion of my argument, but remains unconvinced. He posts, in relevant part:

in some cases its possible that remedying market failures either through public subsidizes or through direct government provisions of a public good can be worse than leaving things to the unassisted private market. But I have to say that providing education, and particularly higher education, is not one of those cases. And note that by education here I am speaking of more than mere vocational training, which markets can more easily provide; I mean education in features necessary for individuals to participate in governance and in culture generally. This sort of education is one of the clearest examples of a public good . . . . Sometimes the cure is worse than the disease, but this abstract formula becomes less plausible when you are talking about public education, and particularly higher education.

I remain unconvinced. Indeed, I think that Balkin is actually helping me make my point. Let me try and explain.

In theory, public higher education would involve “more than mere vocational training” and would instead emphasize “education in features necessary for individuals to participate in governance and in culture generally.” Balkin and I both agree that such education is tremendously important in a democratic society, but I do not think that the empirical evidence suggests that public universities – or even that public support for higher education – primarily serves that purpose. To the contrary, while we may be inclined to focus on the handful of truly elite public universities – Michigan, Berkeley, UCLA, Virginia, Texas – I would submit that the vast majority of public institutions of higher education are not focused on creating “educated” citizens, but on preparing people for the job market. At the typical state university or community college – where the bulk of such education subsidies go – the dominant majors are things like accounting, finance, marketing, and other vocation-oriented fields, not history, philosophy or literature. To the public resources that support these institutions we must also add the public subsidies for state professional schools (yes, including law schools) which do not provide the sort of public good with which Balkin is concerned.

Why is this important? Because it goes to my point that we must compare what private markets would actually do with what the political process actually produces. That is, we must acknowledge that while we might want public higher education dollars to focus on creating a truly educated citizenry, the actual political process tends to produce something different. We must acknowledge that the same businesses that may support private vocational schools are also likely to seek state subsidies for public vocational training. At the same time, as I noted in my prior post, there is reason to believe that state subsidies for certain types of private institutions can crowd out private philanthropic support for the same endeavors. (There are some recent economic studies of this phenomenon. I don’t have the citations handy, but will try to remember to post them later.) Finally, there is also research suggesting that state support of higher education is a significant factor in the increasing cost of higher education, thereby offsetting some of the putative benefits of such support. (Again, I’ll post the cites when they’re handy.)

For these reasons, I do not think the public good argument justifies public universities, and remain skeptical that government subsidies for higher education actually make society better off.

NOTE: The above are the views of Juan Non-Volokh and only Juan Non-Volokh. They should not be attributed to any other members of the Volokh Conspiracy, particularly those that may be employed by state institutions of higher learning.

 
[Eugene Volokh, 2/18/2004 03:28:20 PM]
Life imitates The Onion: David Kaufman points to this fantastic story:

They silently stood hand in hand with gray duct tape pasted across their lips and "Vagina Warriors" emblazoned on the back of their white shirts. The front of the shirts had different messages: "Warning: Hostile Vagina," "Not all vaginas are skinny, white + straight" and "My cunt is not represented here."

About 10 people gathered in front of Agate Hall on Friday to protest what they called a lack of representation of different kinds of women in "The Vagina Monologues" production, which ran Thursday through Saturday at the Agate Hall auditorium.

In flyers handed out to audience members at the show, University graduate Nicole Sangsuree Barrett wrote that while there was "diversity" in the show, it was minimal. Women of "a variety of skin colors, body sizes, abilities and gender expressions" were not adequately represented, she said.

"I would just like to call attention to the fact that this could have been a more diverse cast, but a safe and welcoming environment was not created for people that I consider to be 'underrepresented,'" Barrett said in the statement. . . .

[Barrett] added that the show's organizers didn't offer a safe space for people of different backgrounds.

"Know that what you are seeing tonight is not the result of an inclusive process," Barrett said in the statement. "Know that this space was not one where honest questions and concerns about race were tolerated." . . .

[Senior Melissa Ballard said] only one . . . woman of color remained in the show. "Plus size" and queer women were also not well-represented, she said.

[Senior Natalie Mays, the show's assistant director,] said she completely understands and supports the need for diversity.

"No way would I intentionally alienate anyone," she said. "It breaks my heart that different people feel alienated by this show."

Mays said about 85 people auditioned for the show and there wasn't a large pool of "visible" people of color to choose from. She said it is also not always possible to tell one's ethnicity or sexual orientation just by looking at the person, adding that she does not usually ask people what their sexual orientation is at an audition.

Mays, who is part Native American herself, said she mainly wanted strong women with passion and dedication when she made the casting decisions. . . .

Breaks my heart! Where's that safe and welcoming space? All cunts should be represented. And women of a variety of abilities, too (it took me a while to get this, but I think this is a euphemism for disabled women, rather than a call for women with different acting abilities, or, er, sexual skills). Priceless. If you're looking for more, check out this follow-up story in the Oregon Daily Emerald, "Tensions explode at 'Vagina' discussion." My favorite quote is in the closing paragraph: "'Nobody here is a bad person,' she said. 'Nobody here failed at the show. We failed as a community.'" It obviously takes a village to put on the Vagina Monologues.

     Oh, and readers: Know that what you are seeing on this blog is not the result of an inclusive process.

 
[Eugene Volokh, 2/18/2004 10:56:59 AM]
Gay marriage and Ex Post Facto Clause: A reader asks: If Massachusetts passes a state constitutional amendment banning gay marriages, and retroactively canceling all marriages created under the Massachusetts Supreme Judicial Court's Goodridge decision, would that violate the Ex Post Facto Clause? The answer is "no." Though the Ex Post Facto Clause restricts state as well as federal decisions -- it's one of the few federal constitutional rights that bound the states even before the Civil War Amendments -- it has consistently been interpreted as barring only retroactive criminal laws. See Calder v. Bull, 3 U.S. 386 (1798). Justice Thomas suggested in his concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) that Calder might be mistaken, but it's a pretty firmly entrenched precedent, and I doubt that courts will reverse it.

     What about the Contracts Clause, which bars states from impairing the obligation of contracts? Say that the Massachusetts voters cancel existing gay marriages, and don't substitute civil unions for them, thus essentially abrogating the existing marriage contracts. Would this violate the Contracts Clause? I suspect the answer is still "no"; the Contracts Clause has generally not been seen as applying to marriage contracts, which, I take it, is why states have been allowed to relax their divorce laws. See, e.g., Adams v. Palmer, 51 Me. 480 (1863); White v. White, 4 How.Pr. 102 (N.Y. Sup. 1849). (If a state used to forbid divorces, or allow them only in rare circumstances, it was essentially treating the marriage contract as very strongly binding; the enactment of a permissive marriage law would thus diminish the legal force of the marriage contract.) But if anyone has more specific legal authority for me on this, I'd love to see it and cite it.

 
[Eugene Volokh, 2/18/2004 10:31:39 AM]
Blogopoly: Here and here. Pretty funny.

 
[Eugene Volokh, 2/18/2004 10:27:47 AM]
"'Breathalyzer in every car' bill passes [New Mexico House of Representatives]": According to KRQE-TV:

Some state lawmakers are convinced they have the answer to solve the D.W.I. epidemic and want to require everyone on the road to take a breathalyzer test before they can start the engine of any vehicle. . . .

A bill requiring an ignition interlock device be installed on every car, truck, bus or motorcycle in New Mexico passed the state house today and is on its way to the senate. . . .

Thanks to Dan Gifford for the pointer.

 
[Eugene Volokh, 2/18/2004 09:54:52 AM]
Stupidity and sciolism: The talk about John Stuart Mill allegedly saying that stupid people are generally conservative led me to track down the correct quote. I think I now have it, from Public and Parliamentary Speeches by John Stuart Mill, November 1850 - November 1868, at 83 (John M. Robson & Bruce L. Kinzer eds.) (speech on May 31, 1866). (The text I quote below is somewhat different than the text I quoted earlier, which I copied from Michael St. John Packe, The Life of John Stuart Mill 454 (1954); but the differences are immaterial -- I assume the two versions come from different transcriptions of the same speech.) Contrary to some Internet accounts, and to my original impression, the quote is from a parliamentary speech that partly responds to comments by Sir John Pakington, not a letter to Sir John Pakington. Contrary to some uses, but consistent with my earlier view, Mill is explicitly talking about the Conservative party of the time, not about conservatives generally. Also, for whatever it's worth, he gets some digs in at Liberals, too:

I desire to make a brief explanation in reference to a passage which the right honourable Gentleman has quoted from a portion of my writings, and which has some appearance of being less polite than I should wish always to be in speaking of a great party. What I stated was, that the Conservative party was, by the law of its constitution, necessarily the stupidest party. (Laughter.) Now, I do not retract this assertion; but I did not mean that Conservatives are generally stupid; I meant, that stupid people are generally Conservative. (Laughter and cheers.) I believe that to be so obvious and undeniable a fact that I hardly think any honourable Gentleman will question it. Now, if any party, in addition to whatever share it may possess of the ability of the community, has nearly the whole of its stupidity, that party, I apprehend, must by the law of its constitution be the stupidest party. And I do not see why honourable Gentlemen should feel that position at all offensive to them; for it ensures their being always an extremely powerful party. (Hear, hear.) I know I am liable to a retort, an obvious one enough, and as I do not intend any honourable Gentleman to have the credit of making it, I make it myself. It may be said that if stupidity has a tendency to Conservatism, sciolism and half-knowledge have a tendency to Liberalism. Well, Sir, something might be said for that -- but it is not at all so clear as the other. There is an uncertainty about half-informed people. You cannot count upon them. You cannot tell what their way of thinking may be. It varies from day to day, perhaps with the last book they have read, and therefore they are as likely to prove Conservatives as Liberals, and as likely to be Liberals as Conservatives. They are a less numerous class, and also an uncertain class. But there is a dense solid force in sheer stupidity -- such, that a few able men, with that force pressing behind them, are assured of victory in many a struggle; and many a victory the Conservative party have owed to that force. (Laughter.)

"sciolism," I'm happy to inform you, is "A pretentious attitude of scholarship; superficial knowledgeability."

 
[Juan Non-Volokh, 2/18/2004 09:04:26 AM]
Balkin on Public Universities: I'll leave the free speech aspects of Jack Balkin's post to David, but I do want to comment on the case Balkin makes for public universities. Balkin's view of free speech necessitates public infrastructure including "free public education." "Without public universities, our cultural life would be much poorer," Balkin suggests, because the private marketplace will produce a suboptimal amount of educational opportunity and will fail to generate the same "positive public externalities" generated by public universities. Even accepting Balkin's assumption about the inadequacy of private markets to produce these social goods, the need for public universities does not follow from his argument.

If private markets under-produce a given good or service -- something I'll accept in this case for the sake of argument -- this may justify public support for the good or service in question. It does not follow, however, that the government should necessarily provide the good or service directly. Put another way, if Balkin believes markets will underproduce the positive public externalities generated by universities, he offers no reason why public support for higher education, and those features of universities that produce the externalities with which he is concerned, would not be sufficient to overcome the alleged market failure. Indeed, there are many reasons to believe that a subsidy for a given good or service will be more efficient or effective than the government's direct provision of the good in question. In this specific case, there are many reasons why publicly-funded private institutions could be far superior than equivalent public institutions, not the least being the corrosive impact political control can have on such institutions.

I would also note that the existence of a "market failure" -- in this case the under-provision of positive, education-related externalities -- does not, in itself, justify government intervention. For while markets may fail to produce theoretically optimal outcomes, so too do government programs. The relevant comparison must always be between the admittedly imperfect private marketplace and the equally -- if not more -- imperfect government alternative. Too often, the assertion of market failure is taken as sufficient justification for government action without any consideration of whether the policy proposal in question, as it is likely to be implemented in the real world, will actually produce a superior net result.

It is also worth noting that there is increasing evidence that government support for various public goods tends to correlate with decreased private support for such goods. Government social welfare programs, for example, appear to discourage or crowd out some level of private giving for such purposes. Thus, even if the government can provide, or subsidize, a given good or service relatively efficiently (a somewhat heroic assumption in my view), in some instances it may still produce a less-optimal outcome than relying on admittedly imperfect markets.

In the end, if there is a case for public universities -- and not simply public support for higher education -- I do not think Balkin has provided it (or, at least, not here).

UPDATE: Glen Whitman piles on.

UPDATE: I respond to Balkin's response here.

 
[Eugene Volokh, 2/18/2004 08:53:15 AM]
San Francisco's brief defending its position on gay marriages is here; thanks to Arthur Silber for the pointer. Among other things, it discusses the question whether the mayor and county clerk are "administrative agencies" and are thus foreclosed by the California Constitution (art. III, sec. 3.5) from concluding that state laws are unconstitutional or unenforceable. I would also be happy to link to the challengers' brief, if anyone e-mails me a URL.

UPDATE: Here's the other side's legal argument. Thanks to Duncan Frissell for the pointer.

 
[Jacob Levy, 2/18/2004 08:02:15 AM]
More on marriage: My new New Republic column is online. It discusses both the odd understanding of separation of powers in the FMA's impossible attempt to ensure that only legislatures can create civil unions, and the new kind of intrusion on federalism that a federal command to construe state constitutions in a particular way would represent.

See also: Lawrence Solum's judicious response to my post yesterday, and Jonah Golderg's new column on gay marriage and federalism. I don't share Jonah's fatigue with the issue, but I do share his basic sentiments about the FMA, federalism, and the San Francisco story.

One question about Lawrence's post-- and this might be a question to my lawyer co-bloggers as well. He writes:

City officials are not state officials, and therefore are not bound by the provision of the State Constitution that forbids state officials from making unilateral constitutional interpretations. Cities are not administrative departments of the State of California--they are independent political entities that are subject to state law in much the same way that corporations are subject to state law.

This doesn't sound right to me, unless California's constitution specifically says so. As I understand it, the basic rule is that municipal governments-- while they may not be 'agencies' of the state government-- are entirely creatures of the several states. They can be made and unmade at will by the state governments, which even in-state-chartered private corportaions ordinarily can't be. They are not independent political entities in any juridical sense, even when a given city actually predates the state that it's in. They don't have the 'dignity' that Scalia and Thomas insist states have in the constitutional order; they don't have the capacity to stand against the state legislature that states have to stand against Congress. They often have a great deal of effective political power, but they have neither the rights of state-chartered private entities like corporations and universities, nor the powers of states in a federal system.

UPDATE: Asked and answered, by voluminous e-mail. What I said above is mistaken, at least as a matter of California law. Cities do have constitutional status in California; they are not mere creatures of the legislature. Between that fact and Eugene's arguments above and below, I guess I'm now persuaded that city officials aren't bound by the California constitutional rule against state administrative agencies making unilateral constitutional interpretations.

Tuesday, February 17, 2004

 
[David Bernstein, 2/17/2004 07:35:27 PM]
Balkin on Free Speech: I don't have time to respond to Jack Balkin's very interesting post on freedom of speech and the desireability of public universities, but if you would like to know what the brightest minds on the left are thinking on such topics, it's a good place to start.
UPDATE: Balkin says the purpose of freedom of expression is to "promote democratic culture," which means that affirmative government interventions to promote democratic culture can enhance the free speech principle, even when those interventions involve content-based speech regulations, as is the case with public unviersities. I, and I think the First Amendment, have a more modest view of freedom of expression, which is to limit the government's power to engage in self-serving, antisocial behavior. This is not a direct response to Balkin, but here is what I have written elsewhere on the purpose of the First Amendment and its restriction on the government's ability to regulate expression:

The alternative to allowing an unregulated speech marketplace is permitting government censorship, leaving “the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us.” For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the “fairness” of political debate. As one scholar puts it, “freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.”
Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As federal court of appeals judge Frank Easterbrook wrote in an opinion striking down an antipornography statute inspired by academic feminists, “free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.” First Amendment scholar John McGinnis likewise notes that government officials have a natural tendency to suppress speech antithetical to their interests. As McGinnis notes, the free flow of information related to politics and culture threatens “government hierarchies both by rearranging coalitions and revealing facts that will prompt political action.”
The framers of the American Constitution also recognized that government is in constant danger of capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as “rent-seeking.” The Constitution and Bill of Rights were intended to establish a system of government that limits such rent-seeking. The First Amendment’s protection of freedom of expression is particularly important in this regard. The founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways. The founders’ insights have been confirmed by experience around the world and by modern research into human political behavior by economists and evolutionary psychologists. Permitting government regulation of information relating to politics or culture would come at a very high price to society.
Contrary to the insinuations of some critics, then, all but the most starry-eyed civil libertarians recognize that freedom of expression can have many negative side effects, or, as economists put it, negative externalities. But civil libertarians are also familiar with the voracious lust for power and pursuit of self-interest endemic in politicians and their rent-seeking allies. Civil libertarians make the cold calculus that the negative externalities caused by government regulation are likely to outweigh any negative externalities that arise from freedom of expression. Or, more simply put, civil libertarians believe that allowing politicians to decide the scope of freedom of speech is simply more dangerous than any damage the speech itself may cause. This is especially true in the United States. In contrast to more statist social systems, the United States has largely maintained a Tocquevillian nature, where political and cultural innovations arise from the grass roots, not from the government. Freedom of expression is therefore necessary for economic and cultural progress.

 
[Eugene Volokh, 2/17/2004 04:16:29 PM]
Federal Marriage Amendment: The Feb. 14 Washington Post has the following exchange about the argument that the Federal Marriage Amendment may prohibit even legislatively created civil unions:

"But surely it is right to ask not only what are the intended consequences of the proposal, but the unintended ones, as well," said Eugene Volokh of the University of California at Los Angeles Law School.

Volokh, a libertarian who has often sided with Christian conservatives in legal disputes, argues that the amendment might not prevent legislatures from enacting civil unions but would make them unenforceable.

He poses the hypothetical case of a gay man trying to add his partner to an insurance policy. The insurance administrator turns him down. The man argues that, under the state's civil union law, he and his partner must be treated as a married couple. "Not so," the administrator replies. "The Federal Marriage Amendment specifically says that no state law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples."

If the gay couple went to court, Volokh said, judges might well agree with the administrator.

Bork, a former federal judge, called Volokh's argument "unrealistic."

"This whole thing," he said, "is really in response to courts that are running away" in favor of homosexual partnerships, not against them. "If there were any ambiguities," he said, "courts that are inclined toward civil unions would resolve them in that direction."

     I actually agree with Judge Bork that courts that are inclined toward civil unions would resolve ambiguities in favor of validating legislatively enacted civil unions. But my question is: What about courts that are inclined against civil unions?

 
[Eugene Volokh, 2/17/2004 04:01:46 PM]
"Racist, offensive, and in violation of shared community values": From the Inland Valley Daily Bulletin:

An e-mail from group leaders [of OAD, a quasi-fraternity] suggested that members snap "a photo with 10 or more Asians," an ethnic group that makes up about 13 percent of students.

Rumors about the photo scavenger hunt, which also asked members to photograph themselves doing things like standing on a roof, mooning fellow students, or blocking traffic, soon passed from students angered by its racial overtones to college administrators.

Ann Quinley, the dean of students, sent an e-mail to all students denouncing the incident, quickly making it the buzz of Pomona College's 1,500 students.

"The potential of having numerous students run around campus trying to snap photographs with 10 or more Asian or Asian American people is racist, offensive, and in violation of shared community values," Quinley wrote on behalf of the Incident Response Team, a committee that responds to "bias-related incidents and hate crimes."

She noted that the team had heard from numerous Asian students who expressed anger and fear "at the thought of being treated like "zoo animals' or "rare specimens.'"

[OAD member Isaac] Salen and his friends, who have since been denounced by classmates, confronted by school administrators, and exposed to numerous e-mails calling the scavenger hunt racist, feel overwhelmed. They have apologized for their actions and may face disciplinary action both from the student disciplinary board and the college itself. . . .

The e-mail from Quinley noted that student leaders "expressed their outrage and fear for the safety of their fellow students" when they heard about the scavenger hunt.

"I don't understand that," [OAD member Isaac] Salen said. "No one actually even took pictures, even before it became a controversy." . . .

But many minority groups and students felt [a recent cross-burning] incident exemplified the hostile climate they believe non-white students face at the colleges and in society.

The photo-scavenger hunt also came as the Asian American Mentor Program, which assigns all Asian students to Asian mentor groups when they arrive on campus, ramped up events to challenge Asian stereotypes as the new semester began.

"Do you know how likely Asian Americans are to be below the poverty line," a typical advertisement read. "Do you know why it sucks when people think your race is smart and successful?"

The dean's e-mail about the scavenger hunt likened it to the cross-burning incident and "how Asian Americans have, and still are, marginalized and objectified throughout the history of the United States."

Erica Lai, a Pomona junior and a member of the Incident Response Team, agreed with that assessment.

"The idea of grouping up Asians and taking pictures like they are caged animals or novelty items is offensive to the whole community," she said. . . .

[OAD member Isaac] Salen fears members of the group may also be disciplined over the scavenger hunt, which would violate the school's harassment policy if deans can prove that it created an "element of fear" on campus.

"I don't think people were walking around afraid, especially since the thing never happened," Salen said. "But this is their opportunity to appear tough on racial sensitivity and they're going to throw the book at us."

     I suppose I can see why some people might find this annoying -- but it sounds like it's generating far more of a fuss than it deserves. Seriously, just how evil is it to try to snap a photo with 10 or more Asian students? Newspapers, presumably, do it often enough (say, for stories on Asians at college). As some students quoted in the story pointed out, the school itself does it as a means of showing its openness to Asians. Doing it for a scavenger hunt may lack the same social value -- but it hardly seems to be terribly frightening, offensive, or outrageous.

     Also, while Pomona College is a private institution, and thus not bound by the First Amendment, it is bound by California Education Code sec. 94367 (the "Leonard Law"), which in relevant part reads:

(a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution. . . .

(e) Nothing in this section prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected. . . .

It's not completely clear that this covers taking photographs -- i.e., gathering material in preparation for communication -- rather than just communication. Whether and when information gathering is constitutionally protected under the First Amendment alongside information dissemination is a difficult question. Likewise, it isn't certain whether "speech or other communication" includes only information dissemination or also information gathering. Nonetheless, here the discipline seemed to be based on the suggestion that photos be taken, since apparently no photos were actually snapped, and that suggestion is clearly constitutional speech. Given that the suggestion can't be credibly said to be "harassment, threats, or intimidation," it seems quite likely that the contemplated "disciplinary action" from the college would be illegal.

 
[Jacob Levy, 2/17/2004 03:43:46 PM]
Elsewhere: When John Holbo has the time for serious blogging he's one of my favorites to read. He apparently has had time the last couple of days, because he has one great post on conservatives in academia, and then another one, and then an impressive essay on the dirty hands problem. [UPDATE: Whoops. The second entry there is from John's coblogger and wife Belle Waring. Sorry, Belle!] Tim Burke also has a thoughtful post on the politics-and-academe problems.

Speaking of conservatives in academia, read Kieran Healy's post on David Horowitz's odd initiative, "Follow the Network," which is apparently going to be one of those sprawling everythings-connected-to-everything conspiracy charts of the sort one sees in Christic Institute or John Birch Society publications combines with a high tech let's-trash-people-anonymously function with a kind of six-degrees-of-separation game. (I note that there are established websites that try to make somewhat similar hay with right-leaning think tanks, foundations, universities, and individuals-- but they don't generally reach the absurd heights of including Osama bin Laden in the same network with Jack Balkin.) I think this looks so silly on its face that it's not likely to attract the same kind of attention and worries that, say, Middle East Watch did. Horowitz's team of researchers doesn't seem to have done a very good job even at placing people, by the way. My colleague Cathy Cohen is listed as being at Yale, as is Penn's Rogers Smith.

It doesn't seem to take much to qualify as a "'Progressive' Academic," the category that disreputable folks like three of my departmental colleagues and Michael Walzer get lumped into. The whole enterprise seems like a bad idea-- or rather, three or four bad ideas rolled into one.

 
[Eugene Volokh, 2/17/2004 02:56:52 PM]
Natural born citizens: There's a nice short piece on the natural-born citizenship requirement for President in The Green Bag. Interestingly, there's some controversy even about whether children born abroad to U.S. citizens (for instance, to American servicemen stationed overseas) would qualify.

 
[Eugene Volokh, 2/17/2004 02:00:46 PM]