The Volokh Conspiracy

Emigration from Israel: Easily missed in this story about emigration from Israel is that most of the 68,000 immigrants from the former Soviet Union who have since left Israel were individuals not registered as Jews. This means that they were not Jewish according to Jewish law, which requires Jewish matrilineal descent. Israeli authorities will not register an individual as a Jew unless the Orthodox rabbinate OKs it based on the rabbinate's understanding of Jewish law.

The emigration of so many "non-Jewish" immigrants is not surprising. Many of these individuals have Jewish ancestors, often on the father's side (which was considered more relevant in Soviet society), and consider themselves to be Jews. Yet, for example, they cannot get married to a Jew in Israel because the Orthodox rabbinate controls marriage, nor can they get buried in a Jewish cemetery.

Formal conversion would be an option, but from everything I've read, the Orthodox rabbinate in Israel has intentionally made it very difficult for individuals who seek to do so to formally convert. I attribute this to (1) traditional Jewish reluctance to seek or encourage converts; (2) ethnocentrism, which is very prevalent among the ultra-Orthodox (and, to a lesser extent, Israelis more generally), though completely against Jewish law and tradition; and (3) a belief that most "Russian" converts will vote for non-Orthodox parties, reducing Orthodox political strength. I think the last explanation is the strongest, because the Orthodox establishment has been noticeably lax about approving the (dubious in a variety of ways) Jewish bona fides of Ethiopian immigrants who are much more likely to sympathize with the Orthodox view of matters such as separation of religion and state.

It would be easy enough of the rabbinate to be lenient with potential "Russian" converts. After all, the "Russian" immigrants will all be fulfilling the great mitzvah (commandment) of living in the land of Israel, they have thrown in their lot with the Jewish people, and, simply by virtue of living in Israel, they will be more observant of Jewish law than most Jews in the rest of the world, eating mainly or solely kosher food, observing Jewish holidays, not working on Shabbat, etc.

Besides, the whole matrilineal descent standard is (and here I'm going to offend some of our observant Jewish readers) a crock that should be abolished. While the Orthodox like to pretend that all of Jewish law was given to Moses at Sinai, it's obvious that matrilineal descent is a relatively recent innovation, as a quick reading of the Bible makes it clear that the norm in biblical times amongst the children of Israel was a patrilineal descent standard. Why the change occurred is not 100% clear, but is likely a result of the traumas of exile, when many Jewish women were raped, and a patrilineal descent rule would have been a disaster. To the extent the "we always know who the mother is" rule could still carry weight, modern DNA testing allows us to know who the father is, too. There is no reason to keep the matrilineal descent rule except that it's existed for almost 2,000 years; given that the patrilineal descent rule existed for almost as long, why not just call it a tossup and allow either matrilineal or patrilineal descent, combined with a demonstrated practical link to the Jewish people, to determine Jewishness? (The Reform and Reconstructionist movements in the U.S. have already done this; the Conservative movement hasn't, for fear of losing its "halachic" (Jewish law) bona fides. But if the Conservatives can't bring themselves to abolish a rule as tenuous and dumb as matrilineal descent, than the movement is basically useless as a modern, liberal halachic movement anyway).

UPDATE: This is the kind of email that drives me crazy: "laws like this
about whose mother's, mother's, mother was a real jew and israel still wonders why europe compares israel to south african apartheid sounds so very much like half-coloured, quarter-coloured, one-eighth coloured
rhetoric to me." Response: (1) While the ethnocentrism noted above is a legitimate problem, and Jewish identity can be heriditary (but can also be based on religious conversion), it is not a racial, or even narrowly ethnic, concept; Jews come from all racial groups, and anyone can become a Jew. Judaism is, however, a religion of tribal origin, and thus, especially in its Orthodox manifestations, not in line with modern liberal sensibilities. It hardly follows that Israeli rules based on religious tradition are "racist," though, as obvious from my post above, they should hardly be immune from criticism. (2) Relatedly, in Jewish religious tradition, and in Israeli law, there is no such thing as a "half-Jew", "quarter-Jew," etc., because the concept is not a racial one. One is either considered to be a Jew for religious purposes, or one is not. Because Judaism is not a universalistic religion, and only imposes its obligations on "Members of the Tribe," there needs to be a way to distinguish members from non-members, a concept foreign to Christians and Moslems (edit: Islam has the worst of both worlds from a liberal perspective: "tribal" patrilineal descent and an imperialistic belief that all people should be Moslems). This makes Judaism less liberal in one sense, but more liberal in another--with the exception of the much reviled late-Hasmonean period, its leaders during periods of independence were immune to the concept of wars of conquest for purposes of forcing the heathens to follow the One True Faith. As for Israel, it needs some way to distinguish Jews form non-Jews, to be able to serve its (secular) purpose as a place of haven and refuge for the world's Jews, without being overwhelmed by millions of Third World immigrants (and, indeed, the citizenship laws, based on this secular purpose, are far more liberal in this regard than the religion-based rules of who gets to be registered as a Jew). The problem with Israel's rules regarding who is a Jew for internal purposes is not that they are racist, but that they allow the entrenched Orthodox minority to dictate the resolution of the issue to everyone else, and that Orthodox political power means that the issue matters for who gets to marry, etc.; (3) I think Germany reformed its laws very recently, but until it did so, a person of German "racial" origin whose ancestors had not lived in Germany for generations and who spoke no German was entitled to German citizenship, while grandchldren of Turks residing in Germany for decades were not (and I believe the former half of the above is still true). And Germany had no religious tradition to fall back on, nor a 2,000 year old history of persecution of Germans requiring a safe haven (though there was post-WWII persecution). In Ireland, I believe, grandchildren (or is it great-grandchildren?) of Irish emigrants are automatically entitled to claim Irish citizenship, with even less cause for such rules than have the Germans. Would my correspondent please point me to all the articles comparing Germany and Ireland to South Africa because of their "racist" immigration and naturalization policies? Only Israel comes in for such criticism regarding its immigration and naturalization policies, and the reason, my dear correspondent, is that you and others have absorbed European anti-Semitic traditions.

Nominee Claude Allen: President Bush has renominated Claude Allen, an African American deputy secretary of HHS who used to work for Jesse Helms, to the Fourth Circuit. An academic expert on Helms once told me that unlike every other southern Senator, Helms never actually renounced his segregationist past, and indeed never publicly supported any civil rights legislation, regardless of whether it applied to the public or private sector. I haven't investigated this personally, and would be happy to be corrected. But if Helms's views on civil rights were indeed so extreme that he never could bring himself to support legislation banning discrimination by state and local governments, I would very much hesitate before supporting one of his former aides, African American or not, for a federal judgeship.

Update (elaboration): In response to criticism in the blogosphere, (1) If Helms never accepted that government should not be allowed to blatantly discriminate, Helms should have been, but was never quite, considered beyond the pale. Those who worked for him should be tainted somewhat by their willing association with, and support for, him. The U.S. has been notoriously unwilling to honestly face its recent segregationist past; the Trent Lott incident was a nice change, and hopefully not the last example of such change; (2) the fact that Allen is black does not exempt him from criticism for working for a segregationist. Allen may have thought that Helms's leadership on other issues was more important than Helms's contempt for the Fourteenth Amendment. However, (a) beyond his hostility to blacks (Helms came to public attention as a media celebrity who opposed integration) Holmes was most known for his opposition to abortion and his hostility to homosexuals; and (b) a judicial candidate, at least, should be judged for his respect for the Fourteenth Amendment above any purely political stances he may have. Neither (a) nor (b) leads me to have much confidence in Allen as a judicial candidate, though it he may be a perfectly appropriate nominee to HHS; (c) I said I would be hesitant to support Allen, not that he absolutely couldn't win my support. He could start by explaining why he would choose to work for an unrepentant segregationist. I hold him to the same standard in this regard as I'd hold a white candidate. He has no special reason to respond to this criticism, but neither should his race give him immunity from it. And again the caveat: if Helms did indeed repent regarding segregation, my criticism is moot. But merely the fact that he hired a black man who shared all or large parts of his agenda doesn't mean he did so.

Likely First Amendment violation: According to the Omaha World-Herald,

A small group of Westside High School students plastered the school Monday with posters advocating that a white student from South Africa receive the "Distinguished African American Student Award" next year.

The students' actions on Martin Luther King Jr. Day upset several students and have led administrators to discipline four students.

The posters, placed on about 150 doors and lockers, included a picture of the junior student smiling and giving a thumbs up. The posters encouraged votes for him.

The posters were removed by administrators because they were "inappropriate and insensitive," Westside spokeswoman Peggy Rupprecht said Tuesday.

Rupprecht said the award always has been given to black students. . . .

Rupprecht said disciplinary action was taken against the students involved but, citing student privacy policies, she declined to specify the penalties or what about the students' action led to them.

Karen Richards said her son, Trevor, who was pictured on the posters, was suspended for two days for hanging the posters. Two of his friends also were disciplined for hanging the posters. A fourth student, she said, was punished for circulating a petition Tuesday morning in support of the boys. The petition criticized the practice of recognizing only black student achievement with the award.

One of the school's students, Tylena Martin, said she was hurt by the posters and the backlash she said it caused. . . .

Westside has fewer than 70 blacks out of 1,843 students this year. . . .

[Karen] Richards said her family moved to Omaha from Johannesburg six years ago. Trevor, she said, "is as African as anyone."

     Under Tinker v. Des Moines Indep. Comm. School Dist. (1969), speech may be restricted if it's disruptive -- but not because it's "inappropriate and insensitive," something that many students no doubt thought about the anti-Vietnam-War black armbands that Tinker held to be protected speech.

     Of course, if a school has content-neutral rules prohibiting students from putting up posters on doors or lockers, the school may evenhandedly enforce this policy; the doors and lockers are its property, and it may bar students from using them as their own billboards. But if it's punishing students for the views that their posters are expressing -- for instance, if posters are generally allowed, either officially or de facto, but these were the only ones that were punished -- then that seems like a violation of the Tinker doctrine. Likewise for the school's punishing the student who circulated a petition "criticiz[ing] the practice of recognizing only black student achievement with the award."

     Thanks to reader Barry Jacobs for the pointer.

The Myth of the New Anti-Semitism is the title of a thoughtful review essay in The Nation. I ultimately disagree with what I think is the author's crucial assertion, that Islamic anti-Semitism is the product of a political conflict, and will dissipate when that conflict is resolved. Rather, I think anti-Semitism in the Moslem and Arab world has taken on a life of its own, and will persist, perhaps less virulently but still dangerously, even if the Israel reaches a peace agreement with its relevant neighbors. Ironically, many of the early Zionists themselves were under the mistaken impression that anti-Semitism could be undermined by getting rid of its purported root causes--in their case, they internalized the prevalent leftist notion that the cause of anti-Semitism was Jews serving as exploitative middlemen in capitalist Gentile societies, rather than having their own Socialist state in which Jews would become a "normal nation." Irony abounds.

Statistics and the SAT: The the L.A. Times anti-SAT op-ed, which I criticize in the post below, has one especially noteworthy statistical claim: "[W]hite students score 206 points higher on average than nonwhites" on the SAT, "according to Psychology Today."

To begin with, this seems to be a misquote of the Psychology Today article, which says "Whites outscore African Americans on average by 206 points." African Americans are fewer than half of nonwhites in America, and less than 40% of the nonwhites taking the SAT (note that the SAT statistics treat Hispanics as nonwhite).

Second, it is whites and Asians who score much higher on average than blacks and, to a lesser extent, Hispanics. According to Time, Oct. 27, 2003, the racial breakdown of SAT averages was:

Asians: 1083.

Whites: 1063.

Mexican-Americans: 905.

Other Hispanics: 921.

Blacks: 857.

(I assume that this is the same data on which the Psychology Today account is based, since it also shows a 206-point gap between whites and blacks.)

The Times op-ed quote is still correct as to blacks (rather than "nonwhites"), and it does make an important point. But don't the numbers have a somewhat different impact -- one much less compatible with the "evil whites oppressing nonwhites" subtext that one often hears in connection with the SAT -- when one sees that the gap is between Asians and whites on one side and blacks and Hispanics on the other, rather than between whites and nonwhites?

UPDATE: Reader Michelle Dulak reports:

I was curious what the mean "white"/"nonwhite" score comparison would look like, so tried to find out. The College Board site gave the 2002 breakdown of test-takers as 65% white, 11% black, 10% Asian, 5% "other" Hispanic, 4% Mexican, 4% "other," 1% American Indian. I left out the American Indian and "other" categories, because they weren't in the data you quoted, and tried weighting them by fraction to get an overall mean. The mean for those 95% of test-takers was 1026. The mean for "non-white" test-takers (counting Hispanics as "non-white") was 950. The white/non-white gap is therefore 113 points, not 206 -- if you count Asians as "non-white."

Of course putting it like that obscures the obvious fact that the "non-white" distribution curve is shaped like a two-humped camel. Still . . .

I haven't checked the math here, but it sounds about right to me.

Terry Teachout, whose arts writing I've always enjoyed in Commentary, has a quote about someone who tears pages out of the books he's reading to make them easier to carry around. Teachout could never do such a thing in a million years, nor does he highlight passages in books, "even though I approve in theory of underlining, and I love reading other people?s marginalia in used books and library copies."

I, too, grew up believing (1) that owning books is good and noble and that you should own a lot if you're an educated person, and (2) that books are sacred and that you shouldn't deface them in any way. I've totally rejected both of these -- but not totally, since (1) it's still hard for me to get rid of my books, and I'm actively trying (I gave away over 100 books last year and hope to do the same this year), and (2) I don't make markings in my own books even though I believe that you should do whatever it takes to get more out of the book, because it's your appreciation of the contents of the book that's important, not the book itself. (On Teachout and the sacredness of books, see here.)

As with Teachout, this last inhibition is in some "deeply buried layer of my psyche." I hope to overcome it someday; I'm trying.

UPDATE: Reader Dan Schwartz (and I) recommend Anne Fadiman's Ex Libris: Confessions of a Common Reader, where she discusses this phenomenon. (Thanks to my friend the lovely and talented Stacey Tappan for giving me this book once. Anne Fadiman is the daughter of Clifton Fadiman, whose Mathematical Magpie, a collection of math-related humor and stories, I grew up with.) Anne Fadiman writes:

[J]ust as there is more than one way to love a person, so is there more than one way to love a book. [A chamberlain who was horrified when my brother left his book face down on his bedside table] believed in courtly love. A book's physical self was sacrosanct to her, its form inseparable from its content; her duty as a lover was Platonic adoration, a noble but doomed attempt to conserve forever the state of perfect chastity in which it had left the bookseller. The Fadiman family believed in carnal love. To us, a book's words were holy, but the paper, cloth, cardboard, glue, thread, and ink that contained them were a mere vessel, and it was no sacrilege to treat them as wantonly as desire and pragmatism dictated. Hard use was a sign not of disrespect but of intimacy.

Hilaire Belloc, a courtly lover, once wrote:

Child! do not throw this book about;
Refrain from the unholy pleasure
Of cutting all the pictures out!
Preserve it as your chiefest treasure.

What would Belloc have thought of my father, who, in order to reduce the weight of the paperbacks he read on airplanes, tore off the chapters he had completed and threw them in the trash? What would he have thought of my husband, who reads in the sauna, where heat-fissioned pages drop like petals in a storm? What would he have thought (here I am making a brazen attempt to upgrade my family by association) of Thomas Jefferson, who chopped up a priceless 1572 first edition of Plutarch's works in Greek in order to interleave its pages with an English translation? Or of my old editor Byron Dobell, who, when he was researching an article on the Grand Tour, once stayed up all night reading six volumes of Boswell's journals and, as he puts it, "sucked them like a giant mongoose"? Byron told me, "I didn't give a damn about the condition of those volumes. In order to get where I had to go, I underlined them, wrote in them, shredded them, dropped them, tore them to pieces, and did things to them that we can't discuss in public."

Byron loves books. Really, he does. . . .

To coin a phrase, Read the whole thing.

In other news, reader David Sands prefers BookDarts, and reader Andrew Solovay says travel-induced book-ripping happened on an episode of JAG. Reader Trevor Anderson says that book lover Bernard Levin did this too, with cheap paperbacks. I say, we'll have progressed when we do this too (write, not necessarily rip) with our imposing hardcovers!

SAT scores: Cathy Seipp properly criticizes an anti-SAT piece in the L.A. Times. I'm not an expert on the SAT, but to the best of my knowlege the Times op-ed has still more problems. Just for starters,

Considering GPAs instead of SATs risks favoring students who go to schools where there's a great deal of grade inflation.

Letting in the top 10% of each high school will let in students who are quite academically weak, but went to a high school where the other students are weaker.

The result is not only bad for the intellectual quality of the college, but is also no service to the weaker students who will now find themselves at the bottom of the class, competing against others who are much more prepared for college.

The SATs coupled with GPAs are actually quite good predictors of college performance, for all the criticism that the SAT has drawn, and to my knowledge are much better predictors than GPAs alone.

That "white students score 206 points higher on average than nonwhites" on the SAT isn't a sign of bias in the SAT -- I am told that it actually slightly overpredicts college performance by black and Hispanic students -- but rather a sign of the unfortunate underpreparedness of many black and Hispanic high school graduates. This is a problem that needs attention, but letting in underprepared students into demanding college programs is probably not a solution.

Too unilateral: One of InstaPundit's readers complains to the Washington Post about one of their articles:

In addition to the selective inaccurate quoting, the Post's copy editors didn't catch the Copy Editing 101 glitch in the piece. A policy can't be "too unilateral." It's either unilateral or it's not. There are no degrees of unilateral, just as there are no degrees of unique.

Don't let the man read the Preamble to the Constitution, which talks about forming "a more perfect union." In fact, things can be more round, more perfect, more unilateral, and more unique; that's just shorthand for "more nearly round," "more nearly perfect," "more nearly unilateral," or "more nearly unique." In the words of Webster's Dictionary of English Usage, quoting James C. Fernald, English Grammar Simplified (1946):

Adjectives expressing some quality that does not admit of degrees are not compared when used in their strict or full sense . . . .

But such adjectives are often used in a modified or approximate sense, and when so used admit of comparison.

If we say, "This is more perfect than that," we do not mean that either is perfect without limitation, but that "this" has "more" of the qualities that go to make up perfection than "that"; it is more nearly perfect. Such usage has high literary authority[.]

Now I actually don't like "more unique"; it sounds imprecise and clumsy to me. I probably wouldn't like "more perfect," either, outside the Preamble, though that would likely be because it sounds a bit archaic. But sometimes there's just no very quick synonym that's more literally precise. And in any event, that something sounds inelegant doesn't mean that it's ungrammatical.

(Note also that "too unilateral" may sometimes mean "unilateral in too many instances," though that wasn't the Post's usage.)

Libertarians vs. conservatives: In response to my last post, I received this from a reader who wishes to remain anonymous:

"Prof. Cowen, just a flippant note about the difference between men who describe themselves as libertarians and men who describe themselves as conservatives:

Male libertarians are generally conservatives who want to date liberal women. For example, in law school, when guys that I knew held conservative positions would start talking to me (a liberal) in flirtatious tones, I would ask, "Aren't you a conservative"? They would always answer, "Actually, I'm a libertarian." I'm not sure if any man ever described himself to me as a conservative, and I went to law school in Texas."

"Much of the Patriot Act is neutral legislation for civil liberties": Who said that? Well, the executive director of the ACLU, Anthony Romero:

"While much of the Patriot Act is neutral legislation for civil liberties, it contains about a dozen provisions that simply go too far," Romero added. "These dangerous provisions increase the chances that innocent Americans will be swept into terrorism investigations by removing traditional checks and balances on law enforcement and oversight powers from the judiciary."

Obviously, the ACLU still has serious reservations about the Patriot Act -- a dozen bad provisions would still make for a bad law (though I personally don't see a dozen bad provisions there). But the ACLU's acknowledgement that much of the Act doesn't pose any civil liberties problems is noteworthy, I think, given the vitriolic attacks that many have launched against the Act, attacks that often didn't include such acknowledgments.

A couple of unrelated observations: It's not widely known that the song Istanbul (Not Constantinople) is not by They Might Be Giants, good as they are, but is in fact quite old. How old? Why, I was listening to it in the late '70s! The words are by Jimmy Kennedy, the music by Nat Simon, and it apparently dates from, at the latest, 1953; it was originally popularized by The Four Lads.

Also, check out the true scoop on Latin and Greek plurals (link through Hanah, who got it from GeekPress). One word: Fex.

Finally, on the Wasabi sect of Islam (thanks to Best of the Web), I also recommend Shiite-ake mushrooms. Hanah likes to drink Korange juice, while I like to drink Sunni Delight. Also, there's pie Allah mode? (We came up with all these on our own, but of course there's nothing new under the sun.)

UPDATE: Eric Rasmusen has this. And, just for more circular reference, click here. Finally, I forgot to mention my new idea (which again, alas, is not unique with me): Gollum's Sushi Bar.

UPDATE 2: One reader "was prepared to dispute" whether The Four Lads really popularized "Istanbul" until he discovered that it was #10 in 1953 and was a gold record back when that meant more than it does today.

UPDATE 3: Reader Jonathan Steinsapir is annoyed that the song leaves out the city's original name, Byzantium (after the city's legendary founding by Byzas the Megarian). Note also that the Vikings knew the city as Miklagard, or the Great City; and that Istanbul was an alternate name for Constantinople as early as the 11th century. Query: if Glenn Reynolds were a Turk: InstanBul?

The difference between libertarian and conservatism: Jim Kalb speaks on this important topic:

"Conservatism and libertarianism are both generally viewed as right-wing. Can you spell out the main differences between them from the conservative point of view? What, in your view, are libertarianism's shortcomings?
Kalb: They're both viewed as right-wing because centralized bureaucratic control is the main engine of social rationalization at present. From a theoretical standpoint ideological libertarianism is just another form of rationalism and not at all conservative. As a practical matter though it's mostly an ally of tradition because it opposes the main current enemy, the PC social-services state. The shortcoming of ideological libertarianism is that it says that a very few simple principles are enough for the whole of government and social life. Depending on circumstances that shortcoming can cause serious problems. In practice of course things get complex. People who call themselves libertarians sometimes have a strong streak of philosophical conservatism. They might find libertarian terms a better way to explain their case to the American people and even themselves. That kind of fusionist position can work to the extent the political disputes that matter don't involve government functions that conservatives want to keep and libertarians don't. "

I would put it a little differently. I view conservatives as holding first a value-laden vision of what America should look like, involving tradition, family, and a certain sternness and emphasis on just desserts. Libertarians also hold a value-laden vision, but their rhetoric involves a greater emphasis on "liberal neutrality" and competing lifestyles. I view the competing lifestyles vision as much of a particularist value as the conservative vision (while noting I am closer to a libertarian in this regard, but I do not give libertarianism an a priori elevation over conservatism on liberty grounds). Libertarians share the conservative emphasis on just deserts, hence the immense popularity of Ayn Rand in the libertarian movement. It is for this reason that alliances between libertarians and conservatives are often possible - they share a key value or presupposition. Modern liberals tend to emphasize beneficience instead of just deserts. My personal view is to share this value judgment with liberals (I am a determinist and usually find merit arguments unpersuasive), yet through positive arguments I get to something closer to a libertarian position. We also can (and should) use positive arguments to determine whether implementing the conservative value-laden vision, or the libertarian competing lifestyles vision, will do more for human welfare. In other words, we can make conservatism and libertarianism more compatible, and commensurable in the realm of positive argumentation, but only by dropping their upfront values into a position of secondary relevance.

That's a lot of big ideas in a medium that allows only for short posts, I do understand. I very much enjoyed Kalb's observations across the board, read the whole interview, with part three still to come, at www.2blowhards.com.

Secondary consequences of smoking bans: Clay Whittaker, one of the youngest bloggers, recently posted the following:

"I have just heard in the news that--as of today--Toledo bars have found a loophole in our smoking ban. As you all probably know, a few months ago a ban on all smoking in bars and restaurants in the Toledo area was passed, unless it was for a charitable event. So now the bars have started a not-for-profit corporation that charges people a buck to smoke in the bar, it than goes to their corporation: Taverns For Tots. This shows once again that you can try to beat down business with socialism, but it will fight back to the bitter end. The city of Toledo's lawyers are looking into the legality of this plan, and will no doubt file a lawsuit. I'm interested in seeing if this is, in fact, legal."

The money will be used to benefit economically disadvantaged children. Here is the original article.

Sauce for the Gander: Matthew Yglesias complains in TAP about "a new standard for honesty whereby a Democrat is lying every time his or her comments neglect to include literally the whole truth, whether or not the overlooked fact actually contradicts the claim in question." That's funny. Isn't this the same standard often used by the President's critics (including Yglesias) to label Bush a liar? I say pox on all their houses. As I've posted before, a lie is deliberately false or misleading statement. Not just any falsehood, half-truth, or mistatement qualifies -- and this is true for folks on both sides of the aisle.

We're all big spenders now: Last night's State of the Union included the usual laundry list of costly new proposals, further cementing President Bush's record as a profligate spender. Even with increased economic growth, pursuing these initiatives will further delay deficit reduction. Alas, fiscal conservatives don't have anywhere else to turn, according to this study by the National Taxpayers Union Foundation. To the contrary, based on their campaign platforms, NTUF found that every one of the contenders for the Democratic nomination would increase spending even more than it has grown under President Bush. The thriftiest Democrat, Senator Lieberman, calls for only $170 billion in new spending. By comparison, Governor Dean calls for $223 billion in new spending and Senator Kerry wants to spend an additional $265 billion. The loftiest would-be spender is Reverand Sharpton, whose campaign wish list is over $1 trillion, so be thankful he hasn't a prayer in the primaries. To put these numbers in perspective, NTUF notes the projected federal revenue reduction from the 2003 tax cuts some Democratic candidates want to repeal is only $135 billion. Alas, were there only more politicians who could keep their hands out of our wallets.

UPDATE: See here.

A little bit of embarrassment seems to be in order: An article in Sunday's L.A. Times Calendar section (seems to be unavailable unless you're a subscriber) reports on a new documentary about Julius and Ethel Rosenberg ("an exceptional documentary, short-listed for this year's Academy Award, a compelling emotional narrative laced with explosive political material"), who were convicted in the 1950s of spying for the Soviets, and executed for it. The documentary was directed by their granddaughter, Ivy Meeropol. The article is not by any means entirely pro-Rosenberg, but I was still struck by the second paragraph below:

But what also drove [Ivy] was the fact that "I was tired of the simplistic version of this story, what history remembers, the way everyone thinks they stole the secret of the atomic bomb. I knew this wasn't true, I knew they were more than that, and I wanted to bring their story to people who don't know it or have closed their minds to it. And I needed to know what was worth standing up for, what they were willing to die for."

What this involved was re-creating the world of left-wing activists from which the Rosenbergs emerged, entering it through interviews with friends like Osheroff who are still alive and remember a time of hunger and privation, when, as one says, "you had to be dead from the neck up not to feel radical change was necessary." People, Ivy says, who were "idealists with good intentions who sincerely believed the Soviet Union was a better way. It's painful that people continue to dismiss that, and I wanted to reclaim it for them."

     Now I'm sure that some, perhaps many, American Communists, including those who continued supporting the Soviet Union into the 1950s -- past the Ukrainian famine, past the purges, past the Ribbentrop-Molotov pact, past the enslavement of Eastern Europe -- were misguided "idealists with good intentions." True, to remain "misguided idealists," they had to have willfully blinded themselves to the reality of what the Soviets were doing. But human beings have a remarkable capacity to do that sort of thing.

     Still, the fact remains that either these "left-wing activists" were evil (i.e., not really misguided idealists, but people who fully supported slaughter and tyranny in the name of Communism) or fools: People who failed to realize that Communism would create more hunger and privation, as well as suppressing freedom and killing people. And at the same time, history shows that many of those who didn't "feel radical change was necessary" (a category that of course includes many New Dealers, conservatives, moderates, and many others) -- who were supposedly "dead from the neck up" -- were smarter, wiser, and more humane.

     I don't think I'm asking for much here -- just a bit of embarrassment. "Our friends were dupes of the Soviets, and it turns out many of their opponents were actually smarter and more morally well-grounded than they were, but we should remember that they were just misguided idealists with good intentions" might work. I'm not sure whether it will work for everyone, but it's at least plausible. "You had to be dead from the neck up not to feel radical change was necessary," said when many of the "dead from the neck up" have now been obviously vindicated by history and those who supported pro-Soviet "radical change" have been proven to be fools or worse, is not a strong argument.

     Unless, of course, after all that has been discovered about the awful history of the 20th century, you still think that your pro-Soviet buddies were actually right. In which case, I wish you had spent 1937 in the "better way" of the Soviet Union, rather than in the "hunger and privation" of the United States. Or that part of 1937 before you really did become "dead from the neck up."

Anti-Semitism and the Religious Right: An interesting email from a reader:

Concerning your post 'Interesting findings from the American Jewish Committee survey...', specifically the question which asks about anti-semitism in the religious right: I was raised in a fundamentalist Christian home. My father and grandfather were Southern Baptists ministers, my uncle an Assembly of God minister. I was a fervent believer immersed in that world until the age of about 20, and though at 50 I've drifted far from fundamentalist dogma, I'm still in contact with friends and family who remain firmly entrenched.
Those are my credentials for stating the following; THE RELIGIOUS RIGHT IS STAUNCHLY PRO-JEWISH AND PRO-ISRAEL.
American Bible-belt Christianity, like most religion, is exclusionary of disbelief and teaches that Judaism is an incomplete truth due to it's rejection of Jesus as the Messiah. Jews, however, are recognized by them as the original chosen people of God and contemporary Israel is seen as the fulfillment of Biblical prophecy. As such, fundamentalists feel it is America's obligation to give Israel all necessary aid and support. If fundies are hostile to Jews, how to explain the widespread support given Israel throughout the Bible-belt states? Those good old boys cheering Israel on at every turn spent their formative years in Sunday School.
The first time I encountered the accusatory "The Jews killed Jesus" was in the media, possibly a movie. Though I don't doubt it has been used to justify horrible actions against Jews, it wasn't, and isn't, a fundamentalist accusation. Of course we knew that Jews called for Jesus' death, but Jesus, his disciples, Paul, etc. were Jews. These were the Biblical heroes (with Jesus beyond hero status). It was the chief priests, pharisaic types, that were singled out as the particular culprits, and though they were Jews, the chief priests modern counterparts were, in our minds, Catholics or perhaps Episcopalians. The fellows who worshiped outward form rather than the indwelling God. Ritual rather than commitment. As misguided as this might have been, it's a far cry from the common misperception that Christians blame (and therefore hate) the Jews for the death of Jesus.
In your comments you state that surveys indicate that the religious right is no more anti-semitic than America in general, and though all my evidence is personal and anecdotal, I am sure that they are much less so. When my grandmother was 92 or so, one of her few remaining desires was to visit 'The Holy Land'. My mother booked the two of them on a church sponsored tour. On returning, the focus of their enthusiasm wasn't having walked where Jesus walked, or some mystical/religious connection of place. It was what the Jews had accomplished there. Their attitude was that only the chosen could make the desert bloom on such a scale. Who else could put together a nation like that in 50 years! They were buzzing with admiration. Other of my fundamentalist friends have returned feeling the same.
The Israelis have no better friends than these Christians. Nor the Jews in general.

I can't vouch for the accuracy of this perspective, but I haven't seen much in the way of contradictory evidence. It's true that anti-Semitism has traditionally had a decent foothold in the rural South (think Theodore Bilbo), but surveys show that anti-Semitism is highly correlated with low education, and until rather recently South was way behind the rest of the U.S. economically and educationally. If so, it would make sense that as the South has caught up with the rest of the country, anti-Semitism based on ignorance would decline, and the philo-Semitism of much evangelical teaching would start to have a more pronounced effect.
UPDATE: Several readers who grew up in the South, both Jews and Gentiles, have written to agree with both my correspondent and myself, with various minor caveats.

The Unconstitutional State of the Union Address: An interesting post from my friend, Capital University law professor David Mayer, who has just started a new blog.

Happy blogday... to Is that Legal? the blog from our sometime guest-blogger (and my fellow Brown alum) Eric Muller.

An on-line economics text: Blogger Arnold Kling offers a short monograph in on-line form, replete with links. I love the title: "The Best of Economics." I have only browsed through the contents, but I was very favorably inclined and I can recommend Kling more generally. Unlike many economists, Kling also has met success in the world of business, see his home page, which also refers you to his blogs. Newmark's Door refers to the material as a "high school text," but most professional economists could learn something from reading it. That being said, the presentation is clear and engaging, you could easily give it to a smart high school student.

Question about antidiscrimination law: A reader writes:

Say an employer/business owner -- who happens to be an Orthodox Christian -- interviews a prospective female employee for a job opening. During the interview she let's it be known that she is a married mother with young children and is planning on putting them into day care if she gets the job. The employer does not give her the job because, according to his religious convictions, he thinks that such a mother should be at home raising her children.

Would this violate Title VII's prohibition on gender discrimination (under the disparate treatment theory)? At first, it seems like an easy answer -- an easy yes. But I think it all depends on how narrowly the statute is interpreted. He could argue he wasn't discriminating against her on the basis of gender per se -- perhaps he ended up hiring a woman who wasn't in such a position -- perhaps one whose children were grown up. . . .

     Under Title VII, the easy answer is in fact the correct one: This is sex discrimination, because the employer is treating a woman with children differently than how he would treat a man with children (I assume that this is what he's doing, given the fact pattern). Courts have considered this general issue, under the rubric of "sex-plus" discrimination -- i.e., the discrimination is based on sex plus some other factor -- in contexts very similar to those that the reader asks about (I think they generally involved discrimination against married women, so the "plus" was marital status, but some might have in fact involved discrimination against women with children), and found that such practices were discriminatory.

     And this, I think, is the only sensible interpretation of the statute. True, the employer isn't refusing to hire all women; but much discrimination is discrimination based on a prohibited factor plus something else. An employer who says "I'll hire any white/male/non-Jewish candidate who passes my minimum criteria, but I'll only hire a black/female/Jewish candidate only if the candidate's credentials are stellar" is discriminating based on race/sex/religion (or national origin) plus something else; yet that's quintessential employment discrimination, and the very sort of thing that the text of Title VII prohibits, and that Title VII was meant to prohibit.

     If the employer actually believes that his religion prohibits him from hiring married women who would then put their children in child care (e.g., because he thinks that he would then be complicit with behavior that he think God frowns on), then he would be able to raise a Religious Freedom Restoration Act defense, since Title VII is a federal statute and RFRA still applies to federal statutes. But courts would, I think, reject the defense, because they would conclude that there is a compelling government interest in preventing job discrimination based on sex; that's what the precedents strongly suggest (see, e.g., Roberts v. U.S. Jaycees).

     (Note that this is a discussion of Title VII law as it is, and of how Title VII should be interpreted. There are lots of fascinating philosophical questions about whether we should have Title VII at all, what exceptions there should be to it if we do have it, whether preferences for women or nonwhites should be allowed, and so on; I'm too swamped to get into that now. This is a post about current law.)

Katharine's Secret: Quoth D-squared:

I hereby question the "left" credentials, and indeed the commitment to democracy, of anyone who takes the government side against Katharine Gun. Saddam's gone and nothing can bring him back. Whatever happens in Iraq, happens. The war was fought and cannot be unfought. All that turns on this case, is whether someone who is aware that the government is trying to do something in private which they would not dare to do in public, has the right to blow the whistle. If you think that Ms Gun deserves to go to jail, then all I can say, mes amis is examine your conscience.

(The link is to Bob Herbert's column this morning.) The Crooked Timber commentators generally seem to find this an odd thing to think.

Add me to the slightly baffled chorus here. (I had the same baffled reaction when reading the NYT column this morning.) I've heard of lots of cases of Official Secrecy Act-abuse, lots of instances of people being prosecuted under OSA who I think shouldn't be under a defensible free speech/ free press theory. As I understand it OSA would also have allowed prior restraint against the newspapers that published the memo Gun leaked, and I think that's wrong. But to punish the security-cleared government employee who revealed information that she had access to-- well, if that's a violation of freedom of speech, then there's no legitimate way to have security services at all. I confess that I used to think that there couldn't be a legitimate security/ intelligence service, in my harder-core libertarian days. I can still understand the argument to that effect, even though I no longer agree with it. (And even then, I wouldn't have identified the free-speech rights of employees as the central moral problem with such agencies-- the employees have contracted away their right to speak about what they learn on the job as a condition of employment.) But is endorsing the conclusion that liberal democracies cannot have intelligence/ security agencies really a prerequisite for a commitment to democracy? That's a pretty radical position for a minimum entry requirement.

The comparison to Daniel Ellsberg is interesting but more complicated than Herbert lets on. Ellsberg was never found to have a First Amendment right ot have leaked the Pentagon Papers, though the NYT was found to have a First Amendment right to publish them. Ellsberg was subjected to all sorts of Nixonian illegal and secret harassment. Gun is being prosecuted, above-board and according to law. The criminal case against Ellsberg was thrown out due to government misconduct; Herbert and D-Squared seem to be claiming that the act of prosecuting Gun is itself misconduct.

Whistle-blower cases are complicated to get good general principles for. Whistle-blower cases that involve people with access to classified information are even more complicated, unless one wants to do away with the business o fhaving classified infromation altogether. And, yes, part of having a procedural rule like "People may not reveal classified information" is that people cease to be able to lawfully decide for themselves when the information really ought to be publicly known. (Here cf Raz on authority and law; for that matter, cf Hobbes.) It's true that the government could not have publicly avowed its intention to do what Gun exposed their intention to do. But neither could she have avowed an intention to reveal classified information when her conscience demanded it and still received her clearance.

Appearance at Berkeley: Tomorrow, Tuesday, the 20th, I will be speaking about You Can't Say That! at Boalt Hall Law School on the UC Berkeley campus at 12:45 p.m. Admission is free and open to the public, and VC readers are invited to come by and say hello (and get a free lunch!)

Correction: No time to go into detail, but getting a correction up has urgency: I appear to have misstated the procedures for selecting MP candidates in the UK, Australia, and Canada (single-member FPP parliamentary systems) a couple of days ago, by understating the importance of local party member selection and overstating the influence of the central party structure. Until I can get a proper detailed post and explanation up, please disregard the earlier account.

More on "Original Meaning" Originalism: A few days ago I posted on Originalism and Precedent--The Next Big Issue. In passing, and without elaboration or defense, I noted that, after years of being a nonoriginalist, I had

adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed.

[For a nice description of "originalism"--including the difference between "original intent" & "original meaning" originalism--see today's Legal Theory Lexicon on Larry Solum's Legal Theory Blog.] In response, I received the following thoughtful message from Caltech philosophy professor Dominic Murphy:

What I want to know is what you mean by "the public meaning of the text at the time of its adoption": because (1) if the public meaning of the text is only what the words REFERRED TO at the time, then when the constitution uses the term " the states", it is referring only to the original 13 states, and all states admitted to the union since then are presumably not bound by it. So you can't mean that.

So do you mean that (2) many terms in the constitution are defined functionally, as "whatever fulfills the criteria for being a thing of this kind" - in that case all the states come within the meaning of "states." But now look: in this second version, we admit that the class of entities a constitutional term refers to can expand over time, even if the term keeps its original meaning. In that case, why can't all the terms work like that?

So that, for instance, when the constitution says "rights" it means "whatever fulfills the criteria for being a right". In that case, we can decide that something new (like privacy, or even universal health care) in fact meets the criteria for being a right, and expand the set of rights even while keeping the original meaning of the term (philosophers call this the difference between the sense and reference of a term).

If (2) is your theory of meaning, then originalism is compatible with "the living constitution" idea, since we can just say that the meaning of "rights" remains unchanged, we've just discovered more of them. You don't, of course, have to agree that the set of rights can expand like the set of states, but the disagreement is just a philosophical difference over rights, and there is no difference between originalism and the living
constitution view.

Which I take it you don't welcome. So you could try for (3): some terms in the constitution are functionally defined in such a way as to permit more objects of that type to be added to the set of things that the terms refer to. But other terms aren't: they just refer to what they originally referred to. I don't know how you defend that without either (a) appealing to the intentions of the founders, as the men in control of the definitions, or (b) providing some hideously complicated semantic theory.

In this message, Professor Murphy (who graciously consented to my posting his remarks with attribution) raises some interesting and fundamental questions about original meaning that merit more careful consideration than can be given on a blog. But here are some thoughts.

First, Professor Murphy is raising what con law professors call the "level of generality" issue. Words can be used with varying degrees of specificity or abstractness and the interpretive issue is how specific or general are the words in the Constitution. Does "states" refer only to the then-existing 13 states, to all states properly admitted into the union, or to whatever entity a judge thinks has become a "state" under the "best" interpretation of that word? Do "rights" refer to particular rights, a particular conception of rights, or to whatever conception of rights happens to be "best"?

Second, most originalists maintain that the level of generality is itself an historical question. While some originalists would limit the level of generality to the specific (though usually hypothetical) intentions of the framers, an original meaning approach of the sort I defend involves looking for how the general public would have understood the terms given the context in which they appear in the text.

So, for example, there is much in the document itself to suggest that the term "states" would have been understood to apply to any properly admitted state. For one thing, the Constitution explicitly includes a procedure for adding states, so it would be bizarre to think that references to states elsewhere in the text would refer only to the original 13. However, it is not up to courts to change the definition of "state" to keep up with the times, so they can decide that the District of Columbia should now be considered a state because its size and population exceeded what the founders contemplated. With this conclusion I imagine most nonoriginalists would agree, but the challenge to them would be to explain exactly why a court could not redefine the meaning of "state" if it can redefine other terms in the written Constitution to "grow" with changing times.

The term "rights" in the Ninth Amendment does not appear in a vacuum. It appears along with the words "retained by the people." The evidence I present in Restoring the Lost Constitution clearly shows that this phrase was a reference to natural rights, by which was meant "liberty rights" as opposed to other sorts of "positive rights" found elsewhere in the text--or the sorts of "welfare rights" favored by some today. On the other hand, the term liberty "rights" was then and still is abstract enough to include any rightful exercise of liberty, not merely those exercises of liberty of which the founders were aware. In Restoring the Lost Constitution I substantiate this claim too with considerable historical evidence.

In contrast, the "due process of law" is even more abstract. There is no reason to think that this phrase was understood to be limited to a specific set of procedures in existence at the time (though these procedures could exemplify the concept). Same with "cruel and unusual punishment." The founders did not provide a list of prohibited punishments and there is no reason to think the concept would have been thought limited to specific punishments then thought to be cruel and unusual. One reason the Constitution has lasted this long is that it was written sufficiently abstractly in crucial places to allow its principles to apply to new facts and circumstances.

Which brings me to the issue of the so-called "living Constitution." Everything depends on how this pretty vague metaphor is taken. If it taken to imply that the meaning of the words in the Constitution change with usage, or that Congress and the courts can take it upon themselves to change these meanings, then it is to be rejected. A "dead constitution" performs the vital function of imposing law on the law makers, enforcers, and interpreters, thereby protecting the rights retained by the people from infringement by their "agents" in government. To perform this function, the meaning of a written constitution must remain the same until properly changed. And those agents whom it binds cannot change this meaning on their own. As Isaac Penington, Jr. wrote in 1651: "They who are to govern by Laws should have little or no hand in making the Laws they are to govern by."

On the other hand, if the metaphor of "living constitution" is meant to imply that the abstract, and even the more specific, provisions of the Constitution require "construction" when applied to particular cases and controversies, and that these constructions can evolve over time as facts and circumstances change, then in this sense the Constitution certainly "lives." It would be more accurate, however, to say that, while the meaning of the Constitution remains the same, constitutional law does inevitably evolve. I devote a whole chapter of Restoring the Lost Constitution to the limits of originalists interpretation and the need for constitutional construction to provide rules of law and applications to changing facts. Construction is perfectly necessary and proper, provided that any construction not violate the original meaning of the text, as many modern constructions have--most notably, the "presumption of constitutionality" that gives the benefit of the doubt to the government's exercise of power as opposed to the citizen's exercise of liberty.

There is, of course, much more to say about all this and I deliberately avoided getting into the nuances of originalism in my original post as I could anticipate that it would be hard to say it all in a blog. But a blog is a good place to start and those who find this topic interesting--whether or not they are sympathetic to originalism--can read what I have written about it elsewhere. Or you can come ask me about it in person (see the next post below).

UPDATE: Larry Solum adds his 2 cents here.

Washington DC Book Tour: You can come and question me in person about originalism as my book tour for Restoring the Lost Constitution: The Presumption of Liberty kicks off this week with four appearances in Washington DC. The public is invited to all events and posters at the schools should indicate the locations of the talks. If you do come, identify yourself as a reader of the Volokh Conspiracy.

Tuesday, January 20th

George Mason School of Law, Arlington (Noon)
George Washington School of Law (5:00PM)

Wednesday, January 21st

Catholic University of America School of Law, Room 205 (Noon)
Georgetown Law Center, Room 344 (4:00PM)

NEXT WEEK: THE VIRGINIA TOUR (University of Virginia, Washington & Lee, Sweet Briar, & William and Mary)

What are the political duties of museums? Most blog readers don't click on the links, I have found. But if you don't click on this link, don't bother reading any further. The bottom line: a Swedish museum is displaying an artwork that would appear to glorify Palestinian suicide bombings. (In fairness I should note the artist, an expat Israeli, disavows this interpretation, see today's NYT article "Israel Diplomat Defends Attack," the link is temporarily down, the artist speaks of showing the incomprehensibility of such suicide bombings.) The initial link, of course, shows the image of the artwork, here is a summary from the article:

"Called Snow White And The Madness Of Truth, the installation features a photo of Hanadi Jaradat, a 29-year-old trainee lawyer who blew up herself and 19 Israelis in a Haifa restaurant in October.

The work is accompanied by a piece of Bach music entitled My Heart Is Swimming In Blood."

The photo itself appears to be swimming in a pool of blood.

The Israeli ambassador called the work "a call to genocide" and in fact threw a spotlight at it, which led to his restraint and a diplomatic incident between Israel and Sweden.

Related controversies have arisen in Germany. Museums wonder to what extent they should display works from the Nazi era. But of course there is a central difference: no one in the German museums (one hopes) feels they are endorsing the Nazi cause if they show some Nazi-era art. At least the art does not appear in a possibly supportive context for Nazi atrocities. In contrast I suspect many of the viewers in the Swedish museum, and perhaps some of the curators, sympathize with the Palestinian suicide bombers and regard the artwork as a kind of homage or memorial.

Mel Gibson's forthcoming movie, about the life of Jesus, is considered by many to be anti-Semitic (it is available for limited viewing, the Pope likes it, I have not yet seen it). I have heard equally compelling reports that it is a wonderful work of art. What if both claims turn out to be true?

If I were a museum curator, I would not have displayed the work in question. This is in part because I do not sympathize with the Palestinian bombers, and in part because I see "political inflammation" as outside of the museum's proper mission. You might have noticed that the work is being shown in an "antiquities" museum. At the same time, I will fork over my $8 to see the Mel Gibson movie and I don't have a kneejerk objection to a museum exhibit of Soviet army recruiting posters. I'll think more about this, and if I can come up with some consistent principles, I'll pass them along in future posts.

Addendum:

An astute reader, Johan Richter, offers a (rough) translation of the accompanying text to the piece:

Once upon a time at midwinter
For her brothers and cousins death the 12 of june
and three drops of blood fell
She was a woman too
white as snow, red as blood, and her hair was black as ebony
appearantly innocent, without suspicious intent, and universal non-violent character
and the red was beautiful against the white
The murderer shall pay for this and we shall( or will) not be the only ones to cry
like a weed in her heart until she did not have any peace, neither day nor night
Hanadi Jaradat was a 29-year old lawyer
I shall run far away into the wild forest and never come home again
Before the engagement( to be married) took place he was killed in an engagement with Israeli security forces. ( This is not a pun. The two engagements are completly different words in Swedish but I couldn't come up with any good synonyms.)
and she ran over sharp rocks and briar-bushes
She said: Your blood shall not have been let in vain
and almost pierced Snowwhite's innocent heart
She was hospitilized, broken by sorrow, after witnessing the shooting
the wild animals will soon have devoured you
After his death she became the breadwinner and she concentrated completly on the task
"Yes", said Snowwhite, "with all my heart"
bitterly crying, she added: "If our people can not fulfill its dreams and goals, then let the entire world be erased (or wiped out)"
so run then, poor child, run
She secretly entered Israel, ran into an restaurant in Haifa, shot down a security guard, blew herself up and murdered 19 civilians
white as snow, red as blood, and her hair was black as ebony
And certainly a lot of people are crying now: Zer Avivs family, Almogs family and all the relatives and friends of the dead and wounded
and the red was beautiful against the white

Here is the text in Swedish, Richter also notes that the piece is part of a more general display on genocide throughout the ages.

Nominate Professor Bainbridge: Steve Bainbridge likes my earlier suggestion in NRO about using the threat of recess appointments to break the downward spiral over judicial nominees--and wants to be nominated himself. I think he would make an excellent choice. In fact, threatening to nominate him might end the downward spiral all by itself! You can read his assessment here.

Conspiracy in the court: Reader Bob Ambrogi points out that a blog posting of mine has made it into a published opinion of the Massachusetts federal district court in the case of Suboh v. Borgioli. Alas, it was not some brilliant piece of legal reasoning, shot through with insight and perceptive legal analysis; instead, it was a reference to the lyrics of the parody song "Appointed Forever," a poke at the penchant of federal judges to see themselves as divinely ordained, written by the Bar and Grill Singers. Nice to know nonetheless that we're being read (and that some federal judges -- Judge C.J. Young, in this case -- have a sense of humor).

Check out this article and book review about the Russian (Orwell-like) critic of communism from the far left, Victor Serge. (Link via Arts & Letters Daily.)

Further scandal at The Nature Conservancy: The IRS is starting a large-scale audit of The Nature Conservancy, one of the largest non-profits in the nation. Today's Washington Post presents the gory details, note that the published version is much longer and more detailed than the on-line account. Here is an earlier article. The institution made major loans to employees and board members, bought and then resold land to trustees and supporters at reduced prices, and drills for oil on nature preserve land. The tax records of the institution are considered a complete mess. The institution has over $3 billion in assets, so this is hardly a small matter.

At least one of the lessons is simple: know something about the non-profits you support. This area is just ripe for institutional failure. Too many donors would rather look the other way and pat themselves on the back for their generosity. They do not want to hear bad news, which is one reason why news about bad non-profits often remains hidden for so long. Feeling good about oneself is a worthy endeavor, but it also can interfere with the smooth functioning of voluntary institutions.

Pickering: Too bad Bush decided to use his first judicial recess appointment to appoint Pickering. As I've discussed before, Pickering was among the worst of the Bush judicial nominees.

UPDATE: Readers have pointed me to this and this article defending Pickering, both of which I had previously read, and neither of which I find exonerates him from the criticisms in my original post. (1) It is still highly inappropriate for a judge to lobby the Justice Department regarding a case before him; (2) Choosing to do so on behalf of a cross-burner is an odd choice of folks to champion, even if his coconspirators did get much lighter sentences (such anomalies are not at all rare in our system unfortunately); and (3) This choice becomes even odder when the rationale given for going easy on the cross-burner is in part to avoid pissing off Mississippi's white folks, a fact not mentioned in either of the two pieces above defending Pickering.

On the issue of Pickering pressuring attorneys who appear before him to lobby on behalf of his confirmation, several professorial colleagues pointed out to me that his behavior does not violate the judicial ethics rules. That can be the Bush Administration's slogan for Pickering: "Doesn't violate the letter of the ethics rules! Has the bare minimum of ethics to prevent professional responsibility professors from calling for his impeachment or resignation!"

Imagine if a Clinton nominee had, while a federal district judge, lobbied the Justice Department for a more lenient sentence for a convicted criminal in a case before that nominee. Many of the same folks who have defended Pickering would have been all over that nominee, and Clinton for nominating him. Sorry folks, I'm not going to overlook a nominee's flaws just because he was nominated by a Republican president.

Solum on Pickering Recess Appointment: I cannot blog on the Pickering recess appontment now as I am running out the door to see Urinetown. (Yes, that is the name of the play which I am assured is not a complete downer. I am not holding my breath, though perhaps with that title, I should be). In response to Eugene's query, I had heard some time ago that Miguel Estrada turned down an earlier administration offer of a recess appointment when he withdrew his name from consideration for regular appointment.

At any rate, Larry Solum has published his typically thoughtful reaction to today's development here. I am sure there will be much more to come.

The much-talked about recess appointments have indeed happened: Bush just appointed Judge Pickering to the Fifth Circuit, though he had been blocked in the Senate before. I'm surprised, though, that they'd lead with Pickering -- why not Miguel Estrada, who seems like he'd be politically more appealing? Is he coming down the pike? Or would some nominees not be even willing to consider a recess appointment, which means much more public controversy, and the risk that the person again won't be confirmed for the permanent appointment? A temporary shift into the judiciary, followed by having to go back into private practice, can be quite disruptive of one's professional life.

By the way, what would happen to Pickering, who's a federal district court judge now, if he isn't confirmed for the permanent appointment when his name is sent up again? Would he automatically return to the federal district court? Or would he lose that job permanently, at least until he's reappointed to the district court and confirmed for that position? I assume he'd lose the district court judgeship immediately and permanently, but I'm not positive.

UPDATE: Incidentally, it seems to me quite certain that if Bush had appointed California Supreme Court Justice Janice Rogers Brown to a recess appointment, and then she wasn't confirmed for a permanent post by the Senate, she would lose her California Supreme Court seat permanently (unless Gov. Schwarzenegger reappoints her eventually, but even if he's willing, Brown's California seat would have to be filled immediately, and if she's not confirmed for a permanent post, it may be several years before there's another California vacancy for her to refill).

FURTHER UPDATE: Larry Solum writes:

As I understand it, Miguel Estrada was also offered a recess appointment, but turned it down--presumably for career related reasons.

Pi equals 3 in the Sixth Circuit, since a 500-foot circle seems to contain "750,000 sq. feet." Such a circle actually contains pi x 500 x 500 = about 785,000 sq. feet, assuming the polling place is a dimensionless point, and a bit more for polling places that have length and width themselves (if the polling place, for instance, is 40 x 40, then the circle would contain about 850,000 sq. feet).

OK, OK, it's an approximation, so it's not such a big deal. Still, mathematical calculations are among the few places where courts can make things accurate, objective, and uncontroversial -- why not take advantage of that? (Thanks to How Appealing for the pointer to the case.)

UPDATE: Reader David Chesler comes to the Sixth Circuit's defense. The court, he points out, wrote "Accordingly, for urban voting places in Kentucky, the 500-foot barrier does create 750,000 sq. feet of silence." Technically, that's true: It does create 750,000 sq. feet of silence. It also creates another 35,000+ sq. feet of silence on top of that. Fair enough!

Likewise, the court's statement about the exception for private property -- "Appellees therefore argue that at voting places surrounded by private property, electioneering may occur within 500 feet, thereby obviating what would otherwise be 750,000 sq. feet of enforced silence" -- accurately reports that the exception would obviate 750,000 sq. feet of enforced silence, though it would also obviate 35,000+ sq. feet more. (I assume that the court is endorsing the appellees' calculation here, not just quoting it.) Every court should have a defense lawyer like Mr. Chesler, I say. Still, I continue to be a bit peeved by the court's discussion.

FURTHER UPDATE: I think this calls not for a Petition for Rehearing, but for a Petition for Recalculation.

Mythical Supreme Court case: The Cincinnati Post reports:

Common Pleas Court Judge Richard Niehaus . . . suggested this may be one of the last obscenity cases of its kind if U.S. Supreme Court rulings are considered.

In an Alabama case, a woman was arrested and charged with pandering obscenity for selling "marital aids" and sex toys. Although it is legal to possess the items, Alabama courts ruled, it is illegal to sell them.

The U.S. Supreme Court considered the case and ruled that making it illegal to sell the sex toys was tantamount to preventing people from possessing them, thus violating the rights of privacy of those who want them.

"If (that Alabama case) is upheld, prosecutors must show overwhelming public interest in preventing the sale of (sex toys)," Niehaus said Wednesday.

Following that logic, the judge added, it would be similar to make the same ruling about adult videos and material.

But he declined to make that ruling in this case.

"It's not for a trial court to make a decision of this magnitude," Niehaus said.

Sirkin agreed and said after Jenkins was convicted that his was the perfect case to appeal based on the U.S. Supreme Court ruling in the Alabama case. . . .

Well, it would be, if such a U.S. Supreme Court ruling exists -- but it doesn't. There has been no U.S. Supreme Court case that "ruled that making it illegal to sell the sex toys was tantamount to preventing people from possessing them, thus violating the rights of privacy of those who want them." There is a federal trial court case that so held, Williams v. Pryor, 220 F. Supp. 2d 1257 (N.D. Ala. 2002), but surely that's a much less influential precedent than a U.S. Supreme Court decision would be.

Thanks to How Appealing for the pointer to the story.

Primaries: Harry Brighouse writes:

As the primaries creep up on us (in the US), I want to make a point against the primary system that seems obvious to me but I've not heard made elsewhere. It is simply this: it constitutes an unwarranted violation of the principle of freedom of association.

The States which have primaries effectively impose on political parties a process for selecting their candidates that the members of those parties have no (collective) choice about. I know that in some (perhaps all) states the primary is not binding, and can be overridden by a party convention. But suppose that Candidate A wins the primary and Candidate B is nevertheless selected by the party. Then Candidate B works at a tremendous disadvantage relative to a world in which he was selected by the party without the State having organized an independent vote against it. Why on earth shouldn't party members (that is, people who have chosen to join and pay membership dues in a party) have the right to decide collectively which candidate they want to represent them, without any interference by the State? Closed primaries are bad enough; in open primaries the State effectively forces political parties to allow open opponents of their party to participate in candidate selection. Sometimes when I think about this I feel like a naïve European — there must be some justification that I am missing. State interference in the process of party formation is so extensive in the US already (it varies by state, but mechanisms include having non-partisan local races, restrictive ballot access rules, restrictions on out-of-state contributions, and the gerrymandering, sorry, redistricting process, quite apart from the stupid winner-take-all system); it just seems flat out wrong to force people who have freely associated for the purpose of contesting political power to share the process with their avowed (and paid up) opponents. So, what am I missing?

AT some level Harry's not 'missing' anything; he's perfectly right. The parties in the U.S. have been rendered less-than-wholly independent of the state, and of the states.

As to explanations:

1) The Constitutional structure. The Constitution a) allows each state to determine most of the rules of most of its elections, conspisuously including the rules for electing members of the House of Representatives. This acts as a genuine barrier to the adoption of anything like a party list system. (The Constitution also mandates that House members must be residents of the state-- though not necessarily the district-- they represent.) Whether chosen by primaries or by caucuses, U.S. House candidates are going to be chosen by state-level procedures. One of the primary (no pun intended) mechanisms of party autonomy in other FPP systems, and even moreso in any PR/ STV system, is party listmaking. (There are mechanisms for candidate selection by local party members in at least the UK and Australia, but I genuinely don't understand how those interact with the centralized party-list formation that also goes on. I suspect that most of the time the local selection is a formality.) That simply can't operate here.

Proviso: The Constitution does not mandate single-member districts. California, for instance, would be free to have a single at-large district for the state, and to allocate its eight hundred and thirty or so U.S. House seats by PR or STV in a single statewide election. In that case, the state party would gain tremendous power through its ability to determine a party list. Similarly, states are free to experiment with such things in their state legislative elections.

2) Race. The parties ceased to be regarded as purely private voluntary associations in substantial part because, when the south was a one-party region, the Democratic Party used whites-only primaries to select their candidates. It was decided that the Democrats' status as a non-state actor didn't immunize this practice from the obligation to protect voting rights for blacks.

Speech in Britain: According to a British newspaper,

A PREACHER who spoke out against the "sin" of homosexuality -- inflaming a Bournemouth crowd and sparking a furore over freedom of speech -- was rightly convicted of a public order offence, top judges have ruled. . . .

The late Mr Hammond, a preacher for 20 years, was prosecuted after holding a controversial sign while preaching in The Square, Bournemouth, in October 2001.

The sign contained the words: "Stop Immorality, Stop Homosexuality, Stop Lesbianism", as well as making references to Jesus.

Lord Justice May, sitting with Mr Justice Harrison, at the High Court in London, was told the sign caused a furore as a group of 30 to 40 people gathered round.

Hugh Tomlinson, QC, appearing for Mr Hammond's executors [Hammond had died by then], said: "He (Mr Hammond) was subjected to a number of assaults. Soil was thrown at him and water poured over his head.

"Someone tried to seize the sign and he was knocked to the ground. He was the victim of the assault, not the perpetrator." . . .

Mr Hammond was eventually arrested for a breach of the peace. He was then charged and convicted under the 1986 Public Order Act for displaying a sign which was "threatening, abusive or insulting within the sight of a person likely to be caused harassment, alarm or distress".

He was fined £300 and ordered to pay £395 in legal costs.

The magistrates decided the restriction on Mr Hammond's right to freedom of expression under Article 10 of the European Convention on Human Rights had the legitimate aim of preventing disorder in the light of the crowd's reaction to his sign.

They concluded his behaviour went beyond that of legitimate protest.

Mr Tomlinson said that it had been wrong to prosecute Mr Hammond under public order legislation because he did not use offensive, stereotypical language on his sign.

Lord Justice May told the court: "I have not found this question easy because it is certainly correct that the words on the sign are short and not expressed in intemperate language.

"I have considered very carefully whether the court should conclude that the words on the sign were incapable of being held to be insulting.

"And I have come to the conclusion that it was open to the magistrates to reach the conclusion that they did." . . .

The heckler's veto seems alive and well in England -- if you express political, social, or religious views (not just personal face-to-face insults, but general ideological statements) that are "[]capable of being held to be insulting," and people attack you for it, then you might be the one who ends up being prosecuted. Incidentally, if any readers know whether any of Hammond's attackers were also prosecuted, I'd like to hear about it. Thanks to reader Ken Hirsch for the pointer.

UPDATE: Eric Rasmusen has more. Among other things, he reports that apparently none of Hammond's attackers were prosecuted.

District court citation: I'm pleased to report that the Volokh Conspiracy has apparently become the federal judiciary's go-to location for song lyrics, or at least lyrics to certain federal-judiciary-related songs. See this recent court decision. (Thanks to How Appealing for the pointer.)

More on Boomer Politicians on Drugs: A reader responds to my earlier post on boomer politicians in which I wrote, "Now that they are much older and hold political power, they are arguably more puritanical--at least in how they govern--than were their parents." He retorts: "Naah- they're just scared to tell the truth because they're afraid it might lose them votes."

I cannot argue with this, but what is the political dynamic at work? Is the baby boomer electorate so puritanical that they would punish progressive politicians who voiced support for liberalizing or legalizing intoxicants, or simply marijuana? Are Gen-Xers? Gen-Y? I am not sure this changes my fundamental frustration with the boomers whose pontification I used to have to listen to when I was young--especially pontificating by those a few years older than me in Bill Clinton's age group. (Note to younger readers. Boomers can be divided between those who entered college before or after 1970, and especially between those who were subjected to the serious risk of being drafted and those who, like me, were in the draft lottery after the Nixon drawdown of troops had begun and the number of draftees began to decline. But I digress.)

Or do these formerly moralistic, self righteous boomer politicians (you really had to live through this to understand) lack all courage of their convictions? I have my own theory, but it is of course a sweeping and therefore highly questionable generalization: The "Me Generation" was and remains committed to one overriding principle. Whatever they may happen want at the time. When they wanted to have sex ("free love") and use drugs they defended this on moral grounds, but when they become parents they don't want their children to use drugs so they oppose legalization. The constant principle here is what they happen to want at the time. Perhaps all generations are like this as they age, but this generation was unusually noisy when its members were younger about how morally superior they were to their elders ("Don't trust anyone over 30" they used to say--which used to be called the "Generation Gap")--as well as to anyone else who disagreed with them. Somehow I think younger readers who are now taught by old boomers know what I mean.

As for me, I was for legalization of intoxicating drugs then, and remain so now. (For my lengthy analysis of the issue see here and here.) And I hasten to add, though I am somewhat embarrassed to admit, that I have never even smoked marijuana--not once--then or now.

The unmarried Jane Galt on marriage promotion:

"I'm pretty skeptical about this $1.5 billion for marriage promotion. I mean, if our mothers can't chivvy us into marriage, when they're right there, nagging us constantly, starting every other goddamn sentence with "You know, if I had grandchildren, this would be a great opportunity to . . . ", mentioning ever-so-casually how nice we look in white . . .

Excuse me, are you still here?

As I was saying, if our mothers can't browbeat us into getting married, what hope has a faceless government bureacracy?

On the other hand, my mother doesn't have $1,500,000,000 to spend . . . "

Here is the permalink. Do note, by the way, that this sum is about $5 per American.

What are the costs of cold? It is very very cold today, even in Virginia. One estimate notes that about 770 Americans a year die from cold temperatures, supposedly more than die from hot temperatures (note: here is a measure of heat deaths, the comparison is a difficult one).

We are also offered the following on the economic effects of extreme cold:

"Health Impacts
The health impacts of extreme cold are greater in terms of mortality in humans. It appears that the causal mechanism for cold-related mortality is not so much a single cold snap as it is a longer term chronic exposure. Thus the deadly nature of heat waves per se appears to be greater than that of short periods of extreme cold. Research indicates that those at risk are primarily either engaged in outdoor activity, or are the elderly who are chronically exposed to colder indoor temperatures. This mechanism of injury causes a different set of problems for community mitigation than the heat problem.

Transportation
There are a variety of transportation impacts due to cold weather. Diesel engines are stressed and, often fuel gels in extreme cold weather impacting trucking and rail traffic. Rivers and lakes freeze, stopping barge and ship traffic. Subsequent ice jams threaten bridges and can close major highways. Cold temperatures take their toll on vehicle batteries. Shear cold temperatures stress metal bridge structures. Transportation losses for the winter of 1976 -77 came to $6.5 billion (in 1980 dollars) (NOAA, 1982).

Agriculture
Cold temperature impacts on agriculture are frequently discussed in terms of frost and freeze impacts early or late in growing seasons. Absolute temperature and duration of extreme cold can have devastating effects on trees and winter crops as well. Prolonged cold snaps can impact livestock not protected from the frigid temperatures. In the winter of 1983-84, a single cold snap around Christmas destroyed over $1 billion of the citrus crop in Florida. Louisiana lost 80% of its citrus crop. Tennessee estimated $15 million in agriculture losses. Texas experienced hundreds of millions of dollars in crop damage (NOAA, 1983).

Energy
Energy consumption rise significantly during extreme cold weather. In the winter of 1976-77 additional energy consumption cost $3.8 billion (1980 dollars). This includes increase costs of electricity, fuel oil, and coal.

Water Resources and Infrastructure
Extreme cold temperatures can cause significant ground freezing problems, especially if there is little snow cover. Buried water pipes can burst causing massive ice problems and loss of water pressure in metropolitan areas. This poses a variety of public health and public safety problems. On case of a broken water main in Denver, Colorado forced the entire evacuation in sub-zero temperatures of the medically fragile patients of the Veteran's Hospital. Other cases of broken water mains have shut down subway systems and financial centers.
Schools often close during extreme cold snaps to protect the safety of children who wait for school buses."

CNN.com discusses the possibility of rolling blackouts in the Northeast, which again illustrates the necessity for some form of peak-load pricing during cold (and warm) spells.

More discrimination against the nonreligious: A New York appellate court has just upheld -- against an Establishment Clause challenge -- an employment contract under which a public school district provided up to three paid days for an employee's religious observance, apparently for any "Sabbath or other holy day" observed as a "requirement" of an employee's religion. The case is In re Main-Endwell Teachers' Ass'n v. Bd. of Ed., 2003 WL 23163126 (N.Y. App. Div. Jan. 15).

     Now if the school district wanted to give three extra personal leave days that religious people could use for their holidays, that would of course be fine. But this requirement means that religious employees (or, to be precise, religious employees whose religions require holy days that aren't part of the standard holiday set) get paid the same as nonreligious ones, but have to work three fewer days per year. Seems like pretty serious discrimination against nonreligious employees. If the Establishment Clause is interpreted, as the Court has suggested, as mandating neutrality towards religion, this seems to be a violation; and in any event, constitutional or not, it seems quite unfair, and in my view likely a violation of statutory bans on religious discrimination.

     Nor is this just a normal religious accommodation, such as letting employees get their holidays off without pay, rather than forcing them to quit or violate their felt religious obligations. There are certainly discrimination problems with those accommodations (consider the employee who wants Saturdays off for religious reasons, and the employee who wants Saturdays off to spend with his children), but at least they're (1) mitigated by the fact that the employee will presumably have to make up the lost time on some other day, and (2) justified by the concern that otherwise the employee might be out of a job. Here, the religious employee gets the day off and ends up getting paid for it, while the nonreligious employee must work to get his pay. And the paid leave policy isn't needed to prevent the employee from being out of a job; an unpaid leave policy would suffice for that.

     If a government employer put out a sign saying "Now hiring; religious employees, $40/hour, atheist and agnostic employees, $39.50/hour," this would be clear religious discrimination, a violation of Title VII, and, I think, of the Establishment Clause. The policy here, of giving 3 paid days off out of about 240 to religious employees, and not to atheist and agnostic employees (and, as I said, to the employees of those religions that don't mandate days of worship), seems to be just the same.

Boomer Candidates for "Higher" Office: Steve Bainbridge makes an excellent point yesterday in his Kerry's Pot Joke and Kerry's Policy on Drugs:

Fox News just ran a home video of John Kerry singing along to Puff the Magic Dragon at a private party, during which he fakes puffing on a joint. Fox ran it three times in about 5 minutes and then ran a fairly long story on it. Why? Seems sort of silly. Yet, perhaps it does raise a serious question. John Kerry's website says:

In order to deal with the problem of illegal drugs in this country, efforts must be focused on keeping drugs out of the country and our communities, as well as reducing demand for illegal drugs. John Kerry supports aggressively targeting traffickers and dealers, as well as making a commitment to sufficiently fund drug prevention and treatment programs.

If Kerry thinks smoking pot is no big deal, he ought to come out for legalization. If Kerry thinks it is a big deal, as his website claims, he shouldn't be joking about it. More generally, we keep electing politicians (on both sides of the aisle) who once used - or, for all we know, still use - recreational drugs. Once they get into office they perpetuate the so-called war on drugs, with all of its racism, unfairness, and failures. Why do we put up with it? It is time to have a serious debate about legalization without all the posturing.

Frankly this really bothered me about boomer Bill Clinton, whose justice department brought suit against my clients, the Oakland Cannabis Buyers Cooperative and many other similar organizations. I expected more from progressive boomers on this issue--well "hoped for" is probably more accurate than expected. I am old enough to recall what my fellow boomers said and did about marijuana and other personal freedom issues when they were young--especially their self righteousness. Now that they are much older and hold political power, they are arguably more puritanical--at least in how they govern--than were their parents.

UPDATE: A reader writes: "Naah -- they're just scared to tell the truth because they're afraid it might lose them votes." I cannot argue with this, but what is the political dynamic at work? Is the baby boomer electorate so puritanical that they would punish progressive polititians who voiced support for liberalizing or legalizing intoxicants, or simply marijuana? Are Gen-Xers? Gen-Y? I am not sure this changes my fundamental frustration with the boomers whose pontification I used to have to listen to when I was young--especially by those a few years older than me in Bill Clinton's age group. (Note to younger readers. Boomers can be divided between those who entered college before or after 1970, and especially between those who were subjected to the serious risk of being drafted and those who, like me, were in the draft lottery after the Nixon drawdown of troops had begun and the number of draftees began to decline.)

Woohoo! I just found out that we were apparently finalists for Week magazine's Blogger of the Year award, together with Mickey Kaus, Joshua Micah Marshall, Gawker, and Winds of Change; the winner was Marshall. I'm very pleased.

Religious land use: A California assembly committee just rejected proposed AB 600, which would among other things "prohibit any local, state, or other public agency from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person" -- which included "communal worship, religious meetings, religious education, and day care services, the construction of structures, grounds, parking lots, and other necessary facilities for these purposes, and the use of existing facilities for these purposes" -- "unless the agency demonstrates that the imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

I don't in principle oppose state statutes (as opposed to constitutional interpretations) that require governments to sometimes accommodate people who have religious or conscientious objections to generally applicable laws (though I don't like the "strict scrutiny" / "compelling government interest" test). I discuss my views on this at great length here. But I do oppose such rules when they give special treatment to religious objectors and not to others who have equally deeply held secular philosophical views. I therefore submitted the following testimony to the committee, and thought I'd pass it along to Conspiracy readers as well:

January 13, 2004

Dear Members of the Committee on Local Government:

All Californians deserve to be treated equally by the law -- Christians or Jews, Hundus or Muslims, agnostics or atheists. Unfortunately, AB 600 would discriminate among Californians and California organizations based on their religiosity. Religious schools and day care centers, for instance, would get special privileges. Religious meetings would get special privileges. Other private schools, day care centers, and meetings would be denied these privileges.

A Russian-American day care center would be treated worse than a Muslim day care center. A school devoted to a nonreligious philosophy (say, environmentalism and pacifism, libertarianism, or what have you) would be treated worse than a Catholic school. A weekly meeting on civil rights would be treated worse than a weekly Bible study meeting.

The law would thus discriminate against property owners who run secular schools, day care centers, and meetings. It would also discriminate against people who want to send their children to secular schools and day care centers, or people who want to go to the secular meetings. Parents who want to send their children to religious schools would have more options than people who want to send their children to nonreligious schools -- precisely because the law will be giving religious schools special breaks that aren't given to other schools. It's true that all religious denominations would be treated equally by the bill. But nonreligious Californians, and Californians who are religious but who focus more on secular matters than religious ones, would be discriminated against.

The law would also treat religious speech better than nonreligious speech, thus violating the government's obligation to treat all speakers equally, regardless of their message. People who want to spread religious messages, whether through schools, churches, day care centers, or meetings, should certainly have equal rights with those who want to spread secular messages. I have argued that the Supreme Court should mandate this equal treatment, and strongly opposed those who would relegate religious speech to second-class status. See, e.g., Eugene Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame J. Law, Ethics & Pub. Pol. 341 (1999), http://www1.law.ucla.edu/~volokh/equal.htm. But AB 600 wouldn't mandate equal treatment for religious speakers: It would give them preferential treatment. In the marketplace of ideas, religious ideas will thus have more legal rights than secular ideas. That, I think, is wrong.

I think such a law might therefore be unconstitutional, either under the First Amendment or the California Constitution's own Free Speech Clause and Establishment Clause. Just as the Free Exercise Clause bars discrimination against religion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), so the Establishment Clause has often been interpreted as barring favoritism for religion. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 18 (1947); Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

The U.S. Supreme Court has, for instance, held that a tax exemption for sales of religious books violated the First Amendment, because it discriminated in favor of religious books and against secular philosophical books. Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989). In a decision that was, I think, strongly influenced by Establishment Clause considerations, the Supreme Court held that the religious objector provision of the draft laws had to apply equally to secular conscientious objectors. Welsh v. United States, 398 U.S. 333 (1970); see also id. at 344 (Harlan, J., concurring in the judgment, and providing the needed fifth vote) (relying explicitly on the Establishment Clause). And even when the U.S. Supreme Court interpreted the Free Exercise Clause as mandating accommodations for religious objectors, it made clear that religious speakers aren't entitled to any better treatment than secular speakers. Heffron v. ISKCON, 452 U.S. 640 (1981).

I realize that the constitutional question is unclear; some U.S. Supreme Court decisions have also said that some preferences for religion may be constitutionally permissible. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Corporation of the Presiding Bishop v. Amos, 483 U.S 327 (1987). But whether or not courts ultimately rule that such a proposal is unconstitutional, it is definitely discriminatory and unfair. The California Legislature should provide secular Californians as well as religious Californians more than just the bare constitutional minimum to which they're entitled. It should provide them with equal rights and equal treatment regardless of whether or not they are religious.

So if the Legislature wants to accommodate people's religious beliefs as well as their secular philosophical and conscientious beliefs, that's great. If the Legislature wants to protect people's ability to use their property to run schools, day care centers, and meetings that teach a wide variety of different philosophies, that's great. But it shouldn't give special preference for the religious, and discriminate against the secular.

Sincerely Yours,

Eugene Volokh

Originalism and Precedent--The Next Big Issue: Originally I was not an originalist. For most of my career, I rejected originalism because I accepted as valid the standard academic criticisms of the version of originalism that became popular in the 1980s, which was based on the intentions of the framers and justified on grounds of popular sovereignty. Gradually I was moved in the direction of originalism, not by any external argument, but by my longstanding interest in and writings about the views of the founders. Eventually I adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed. In short, while I still accept the traditional criticisms of originalism, I do not think they apply to this modest version of originalism justified in this manner.

It is not my intention to completely explain this argument here. I do so elsewhere. I raise this issue as background to the following observation: Originalism (of any version) now confronts a new intellectual challenge: How to handle precedent. If the meaning of the Constitution should remain the same until it is properly changed, as originalists contend, suppose that the Supreme Court gets this meaning wrong, as they have so many times in the past (in part because they largely ignore original meaning)? Is a future Court free to disregard precedent whenever it concludes that the prior case got the text wrong? Like my BU colleague Gary Lawson, I am inclined to say "yes" but Larry Solum has recently made some powerful arguments in favor of the role of precedent for formalism that cause me to reserve judgment until I have given the matter more serious thought.

Recently, I moderated a panel on this topic at the annual meeting of the Federalist Society's Law Professor Division in Atlanta. On the panel was Larry Solum (San Diego)--to whose lengthy comments on Legal Theory Blog I previously linked--Rick Kay (UConn), Steve Calabresi (Northwestern), Keith Whittington (Princeton) and Mike Rappaport (San Diego). Now Mike has posted his views of the subject on The Right Coast. Larry Solum also recommends it and provides additional related links here. You should check it out as I predict that the proper relationship between precedent and originalism will be a subject of intellectual controversy and debate both among originalists and with their critics for some time to come.

Risk-aversion: See Tyler's post below, Lawrence Solum, and Tyler's Marginal Revolution post. Would immortals-by-lifespan who were not invulnerable be very, or infinitely, risk averse? Would they be very unambitious and inactive, since there would always be time for stuff later?

I'm not going to get into the genuine intellectual issues at stake, just going to enjoy the chance to survey some SF, fantasy, and related genres of fiction.

A correspondent of Solum's says that in 'contemporary vampire fiction' vampires are extremely risk-averse. I suppose that this refers to the Anne Rice novels, none of which I've read. But it does invite an obvious question about Buffy the Vampire Slayer, which was otherwise generally very good about imagining a world that made sense given its initial premisses. Why would any vampire hang out in Sunnydale? The Master was bound into the Hellmouth, and some of his servants were bound to him. Occasionally there was a vampire who wanted the glory of killing a Slayer. But then there were the countless, often nameless, vampires who just inhabited the town and treated it as their feeding ground-- until they got staked. The Hellmouth might have attracted demons, made it more likely that new vampires would be created, and generated generic magical weirdness. But wouldn't an even-remotely-rational vampire, even one who had been created in Sunnydale, move out of town immediately upon realizing that he or she was much more likely to get destroyed there than any other place in the world? Even the glory-hounds must have thought that the glory of killing a Slayer was inordinately valuable, given that they should have wanted to avoid any risk at all of getting slain. Instead, they continued to congregate in the least rational place for them to do so.

Robert Heinlein's Lazarus Long was not highly risk-averse-- but he did not know that he was going to turn out to be immortal, and by the time he knew, his habits of mind, his aversion to boredom, had been very well-set. Many of his fellow Howards did become very conservative and risk-averse, especially those who were born after the advent of rejuvenation and who therefore knew all along that they were functionally immortal.

The characters in Poul Anderson's Boat of a Million Years have interestingly varied reactions-- some but not others become extremely conservative for parts of their lifespan.

Characters in the Highlander universe of course face a somewhat different incentive structure. They are immortal-- but know that only one of them will be truly immortal, the last one to survive the last swordfight. That creates an incentive to engage in swordfights along the way, so as to remain in practice. [NB: Yes, there are also intermittent claims about each immortal 'gaining the power' of each other one he or she kills in combat-- but there's not a lot of consistency about just what that means, and whether that 'power' makes one more likely to win the next fight.] Accordingly, we again see variation in strategies adopted, from the strategy of spending centuries at a time on holy ground (off limits for swordfights), in order to protect one's immortal life, to the strategy of fighting all the time in order to hone skills and increase the chances of being the last survivor.

Isaac Asimov's Spacers, on the other hand, almost all become extremely risk-averse, even though they only hane lengthened lifespans rather than infinite ones.

[For those wondering about Tolkien's elves: they may well be a special case, as there are mixed suggestions about what happens when one is bodily slain, and some suggestions that they cannot be permanently bodily destroyed.]

Often even when some of the long-lifers/ immortals grow risk-averse, the narrative centers around the one(s) who doesn't/don't, and implicitly or explicitly condemns extreme risk-aversion. The wisdom gained over long life teaches that life has to be lived in order to be worth living... or something like that. But that might well tell us more about the demands of narrative than about what immortals would actually be like-- the risk-averse just aren't the most interesting people to tell most kinds of stories about...

UPDATE: Unsurprisingly, lots of e-mail on this one. Some clarifications:

1) Tolkien's elves can, of course, die of wounds or poison. They can also lose the will to live. But in either case they travel to the Halls of Mandos and reside there, apparently incarnate. It's left unclear whether doing so differs in any clear sense from simply travelling over the sea to Valinor; the long-term existence of an elf who is shot with an arrow may not be that different from the long-term existence of one who just sails away. Moreover, the texts that suggest life with Mandos is not embodied also suggest that it is possible to become re-embodied-- in a substantially identical body with the same name, spirit and memories. Both Finrod and Glorfindel apparently did so. Whether one re-embodies in Valinor or in Middle Earth, Elvish 'death' seems to be a lower-stakes affair than most other variants of the same.

2) Lazarus Long talks a lot about being risk-averse and a coward. What he means by this is that he's not stupid, that once he's decided on a course of action he does everything he can to make sure he survives the course of action, and that his primary goal in a fight is to be the one standing at the end. I stand by my characterization, though. He does not become what he calls 'sot in his ways,' as many other Howards do. He persists in living a life that has a great deal of risk, danger, and violence in it. He tries to make sure that he can beat the odds, or he rigs the game; but he insist on playing rather than sitting it out.

3) Vampires. The same person who wrote to Solum writes to me, asking to continue to remain anonymous (what, you think there's something embarrassing about spending one's time on this sort of thing??)

The specific works that came to mind when I was thinking of 'behind the scenes', 'incredibly risk averse' older vampires working through proxies were Blade II, Underworld, any of the Vampire: The Masquerade series of role-playing/computer games, and actually, Buffy. The vampires you mention as wandering around waiting to be staked are, for the most part, stupidly young, and pretty dumb, but there's a couple of immortals (vampires/demons, etc.) who do prefer not to be seen and work by proxies. (The "Senior Partners" of Wolfram & Hart in Angel, for instance.) It's a pretty common theme in vampire fiction: the really old guys stay in the castle/hideaway/headquarters whilst sending out minions because they're too scared of losing their eternal lives.

Anne Rice novels are a bit of an exception--even the very old vampires are pretty careless, and very few are manipulative, behind-the-scenes actors. However, the truly old ones are usually completely nuts anyway.

I also got the following entertaining missive from Gerry Canavan:

I've had the same
thoughts about the premise of the show for a long time, and have come up with a couple of theories:

1) The Hellmouth attracts them to such a degree that they stay DESPITE the apparent illogic of staying, ie, they'd rather be near the Hellmouth with Slayer than anywhere else without Slayer.

2) As we've learned from Angel and the episode "The Wish," there's a great deal more "Champions" than just the Slayer, from high-powered Vamps with Souls to just generic "White Hats"...it may well be that most places are also somewhat dangerous for vampires, shifting the odds back in Sunnydale's favor.

3) Eventually Buffy will die, and when that happens, the Hellmouth will be the place to be (see for instance the episode where Buffy came back from the dead). They may be betting that she'll die relatively soon (she is rather long-lived for a Slayer).

4) Your argument is fundamentally correct, and most vampires/demons DO stay away from Sunnydale. Corollary: the earth has many more demons than we might have thought. This seems to be the case, at least on Angel...Los Angeles seems to be crawling with as many or more demons/vampires than Sunnydale has.

More than vamps, what bothers me is the fact that all these apocalyptic demon cults would do a lot better if they planned their apocalypses in, say, Guam. They really should have done at least a few episodes where Buffy had to leave Sunnydale to fight big bad world-ending evils elsewhere. [JTL's note: the cult-plots typically do seem to depend on the Hellmouth, in a way that ordinary vampire feeding does not..]

5) There's some evidence on the show that knowledge of the Slayer isn't very well known among demons or vampires. Your powerful, very old Demons know the Slayer exists, but most vampires probably haven't ever heard of one, and many of those who do discount the Slayer as a kind of "vamp boogeyman" that doesn't really exist.

Buffy even sometimes meets Vamps in Sunnnydale who don't know there's such a thing as a Slayer (in, for instance, the Gift.)

This may also have something to do with the fact that she's so long-lived for a Slayer. Most vampires wouldn't even hear that she's in town before she bought it.

One other thing you might have mentioned: we know there's also a Hellmouth in Cleveland (also from "The Wish"), and it seems obvious that THAT is the place all smart demons should go. Downside: then they'd have to live in Cleveland. How does the rational demon handle THAT one?

Constitutional Law Stories: I just received in my mailbox a copy of Foundation Press's Constitutional Law Stories, edited by Michael Dorf of Columbia Law School. The book provides in-depth background on fifteen leading constitutional cases; I wrote the chapter on Lochner vs. New York. The other chapters, which I read in draft form, are excellent. The book is being marketed, as far as I know, primarily to law school professors, but it would make an excellent text for undergrad Con Law or Constitutional History classes. It's a worthy successor to Quarrels That Have Shaped the Constitution, a book last updated in 1987 and showing its age. And no, I'm not going to get any royalties from the book!

The dilemma of the immortal, continued: As you may recall from yesterday, I asked whether an immortal would necessarily be considered a murderer, given that accidents happen sooner or later. Drive on the roads for a few million years, and you are likely to run over a pedestrian. A related question is whether we should prohibit such actions, such as driving for millions of years, if our rights theory forbids the imposition of high levels of risk on other people. Conversely, if we do not consider the immortal driver a murderer, we might face counterexamples where we cannot stop the repeated application of risk, when stopping such risks is an intuitively appealing thing to do, read the original post for more detail. The underlying dilemma is that once we consider an intertemporal perspective, can a theory of rights have a firmly grounded and intuitive benchmark for what counts as "too much risk"? Here are a few threads of the responses I received:

1. Sasha Volokh suggests that rights should be defined in terms of how much risk is acceptable to impose on a person in a given time period, not how much risk can be imposed overall through a longer period of time. This, of course, suggests that would-be aggressors can get away with misdeeds by spreading out their aggression over time probabilistically, I don't think that Sasha would regard this possibility as a reductio on his view. An interesting question is whether the time dimension should be treated separately from the dimension of space, and if so why. What if you spread very small risks around a large amount of space, killing someone with near-certainty? Would this be less acceptable than spreading the risks through time?

2. Lawrence Solum raised the separate question of how risk-averse a would-be immortal would be or should be. If your life is eternal in the absence of accidents, perhaps you should never leave the house. I have offered separate comment on this interesting issue.

3. Daniel Davies (of CrookedTimber fame) wonders whether probabilistic concepts are always well-defined in the examples I consider. He cites the Austrians, and he could have cited the post-Keynesian economists as well.

4. Many of you, especially the lawyers, introduced realism and challenged the assumptions of the initial queries about automobile accidents and Russian roulette. On this I will defend the use of hypothetical philosophical thought experiments. They are supposed to be unrealistic and stark, to root out presuppositions in our moral intuitions that otherwise go unchallenged. Fully realistic examples, by their nature, often teach us fewer new things about how our intuitions work. One reader wrote to tell me that there are 13 auto-pedestrian fatalities every day, in case you are curious.

5. Economist and blogger Eric Rasmusen suggested that the correct answer could depend on how we discount time.

6. Many of you suggested that a rights theory had to be parasitic ultimately upon utilitarian concepts, and that we had to look to costs and benefits to determine what is an acceptable rights infringement. I agree with this conclusion, but two points: first, rights theory might end up falling off the map altogether. Second, utilitarianism has its own version of the problem. Should you join a firing squad to kill an innocent man, thinking that the fellow will die anyway, but you can donate your wages to charity? Derek Parfit multiplies related examples at length. So I am not willing to cite utilitarianism as a simple answer to the problem, rather it simply shifts the ground.

In sum, I still think that any rights theory is embarrassed when it tries to answer the question of how much risk is acceptable, and how we delineate "how much risk" one person is imposing on another. I've nonetheless learned a great deal from considering your responses.

Addendum: Notice that under many rights theories it matters whether one individual, spread through time, is the source of the risk, as opposed to "many drivers today" creating the same final risk to life. The idea that we have a rights violation when a given individual crosses a given threshold of risk gets us to that result. Some of you, of course, may view this as a reductio on a particular kind of rights theory. For a utilitarian, of course, risk is risk, no matter what the source, we need only look at outcomes.

Sympathetic plaintiff? George Lane, one of the plaintiffs in a state sovereign immunity vs. disabled rights law case that the Supreme Court just heard, has often been described as quite sympathetic and deserving of empathy. And surely there's something to that; but, on the other hand, as reader Robert Schwartz points out, there are other things that are less sympathetic about him. Here's an AP article:

Eight years ago, after an auto wreck left him unable to walk, George Lane crawled up two flights of stairs at the Polk County Courthouse to face reckless driving charges.

He says he will never forget the humiliation of having to drag his body up 30 tile steps. ''Two law enforcement officers and county officials stood at the top and laughed,'' he says. . . .

Lane, 40, has been arrested more than 30 times on charges that include drunken driving, drugs and traffic offenses. No longer in a wheelchair, Lane now walks with an artificial leg inside Brushy Mountain Correctional Complex, where he was sent for slamming a fellow prisoner in the head with a crutch at a county jail. . . .

Courthouse employees who witnessed Lane's crawl in Benton, about 40 miles from Chattanooga, say that no one laughed and that he refused offers of help. In fact, Lane declined a judge's offer to move the hearing to a ground-floor room.

When Lane chose not to climb the stairs a second time, he was arrested for failure to appear in court.

Two years after Lane's crawl, Polk County spent $108,000 to install an elevator at the courthouse. . . .

Lane was maimed in an auto accident that killed a woman; he was driving on the wrong side of the road. The reckless driving case happened four months later.

Lane's case has been joined by a perhaps more sympathetic plaintiff: Beverly Jones, a court reporter who says she cannot pursue her livelihood in at least 25 courthouses in Tennessee because she uses a wheelchair.

This doesn't tell us what the right answer should be in Lane's case, of course. To the extent that there are new rules to be made with an eye towards the practical effects of the decision (something that courts sometimes do have to do), the Court should try to consider the practical effects on the run of cases, and not the particular and perhaps unusual attributes of this plaintiff. But this does, I think, bear on the "George Lane, super-sympathetic plaintiff" theory.

UPDATE: D'oh! When I first posted this, I credited the article to the Miami Herald, even though it was an AP article that just ran in the Herald (presumably among many other papers). My mistake; I usually try to credit AP stories to the AP, but this time I just missed it.

YUCCA UH-OH: Based upon this report, it seems the federal government's plans to dispose of (read: store for a really, really, really long time) nuclear waste in Yucca Mountain in Nevada may be in trouble. Yesterday's oral argument in Nevada's suit challenging the plan seems not to have gone well for the federal government's attorneys. Specifically, judges seemed sympathetic to Nevada's claim that the environmental safeguards did not comply with the relevant statutory requirements. For more background on the case, see here.
[Note: Post edited to correct minor error.]

"DEANISMS" Slate has "Bushisms," which have been ably critiqued by our own Eugene Volokh (see, e.g., here and here). Now NRO has "Deanisms" -- but they're not quite the same thing. Whereas the former are intended to portray the President as inarticulate or uneducated, it seems the latter will portray Dean as a hothead. Of course, Dean's made stupid gaffes too.

Who's the Livy? The Sallust? From the New York Times:

He said he was fired by ABC in 2002 after two seasons as a commentator on "Monday Night Football" when the network had a chance to hire John Madden. Mr. Miller's reviews had been mixed. He said he enjoyed being a sports commentator and had no ill will toward ABC. "As soon as Madden left Fox, I pretty much knew I was going to be whacked," he said. "Here was Madden, the Pliny the Elder of football announcers. And they were going to stay with the kid?"

Friedrich Hayek on gay marriage: Here is a link to a recent short piece by Virginia Postrel. My personal opinion, consistent with Virginia's presentation, is that gay relationships are indeed an evolved part of a voluntary market order, and also deserving of various legal protections. A Hayekian therefore can without contradiction embrace the idea of gay marriage, although admittedly simply citing Hayek still leaves a number of gaps in the argument for legal gay marriage. See also Virginia's longer piece on Hayek and the more general importance of his thought.

New law journal: Yesterday Mario Rizzo sent me the following, which I pass along for your interest:

"An exciting new journal has been founded at the NYU Law School. It will be called, The NYU Journal of Law and Liberty. Its mission is to publish articles that develop classical liberal approaches to legal issues as well as those that provide thoughtful criticisms of these approaches. The first issue (Fall, 2004) will feature articles on the legal theories of Friedrich A. Hayek. The journal will be published by the NYU Law School and edited, as is the custom with law reviews, by law students. It will be independent of any external organization or society.
I am enthusiastic about the academic potential of this endeavor (and about the greater balance it will give to scholarship at NYU). Accordingly, I shall be assisting the editors in any useful way I can.
I am writing to you with two purposes in mind: first, simply to inform you about this new journal; and, secondly, to urge you to consider writing articles for it."

Update: I've been overwhelmed by responses to my query from yesterday as to whether an immortal necessarily is a murderer with a probability approaching one, given the risk of accidents. Thank you all for writing, I can't thank you all individually and respond to each, I will distill some of the responses once they stop arriving.

On another matter from yesterday, I would like to speak up for David Bernstein. I always enjoy reading his posts on Israel, Judaism, American Jews, and related topics. He also has altered my thinking on a number of topics, one of which is the Israeli endeavor to build a fence. The whole point of blogging is to give people what you really care about, so I would urge David not to let himself be discouraged by the (few) critics.

The Civil Rights Cases: I'm teaching the Civil Rights Cases (1883) tomorrow, which invalidated the Civil Right Act of 1875's prohibition on discrimination by inns, public conveyances, and places of public amusement, as beyond Congress's power under the 13th and 14th Amendments. In debates over Lochner and constitutional protection of economic liberty more generally, liberal scholars will sometimes refer to the Civil Rights Cases as an example of the evils of constitutional protection for economic liberty, arguing that the Court upheld economic liberty at the expense of civil rights. As I read the Cases, however, the majority's opinion is solely based on federalism and has nothing to do with economic liberty or property rights. Indeed, the majority takes pains to note that all states require inns and common carriers to serve all comers, and that the plaintiffs in the cases involvig inns and common carriers (but perhaps not the case involving a theater) had remedies under state law. Just another example of how sloppy (see link for a further discussion) the debate over Lochner has been.
UPDATE: Tim Sandefur has an interesting response, arguing that the public-private distinction enforced in the Civil Rights Cases reflects the same sort of classical liberal view of state and society as Lochner. Perhaps, but the liberal scholars I've noted seemed to imply that the Civil Rights Cases themselves were decided based on a Lochner-like liberty of contract or property rights theory, which is simply false. And I think the ultimate schism in the Civil Rights Cases Court was over how much the Reconstruction Amendments changed the balance of federal-state power, especially vis-a-vis Congress's power to aid African Americans, and not over generally differing views of state and society. Harlan was the lone dissenter in the Civil Rights Cases, and though he dissented in Lochner, he also either wrote or joined some of the most significant liberty of contract cases. Overall, Harlan falls into both the nationalist and "moderate Lochnerian" camps, supporting strong Congressional regulatory authority in a variety of areas, but also having a somewhat narrow view of the states' police police powers.
FURTHER UPDATE: A reader agrees with my point on Lochner, then adds,

the much more interesting--and much more damning--debate goes to the legitimacy of the "federalist" reasoing deployed in The Rights Cases. In short, the Court was wrong. The 13th and 14th Amendments by their very terms are assertions of federal power vis-a-vis states and citizens. Relying on southern states' civil rights laws was really
laughable in the way it blinked at the enforcement problems. Remember, the 14th amendment's text: "nor deny to any person...equal protection of the laws." Enacting a law denying equal protection and failing to enforce laws that "guarantee" equal protection both sound like denials to me. Further, the 14th amendment does not preclude a *private remedy,* but at most merely defines a violation as requiring state action.

I agree, but in 1875, and even 1883, it was not clear that state courts would fail to guarantee blacks' access to common carriers and inns, and indeed there were successful lawsuits in southern state courts against train companies and others who mistreated black customers. The situation in the South was rather fluid until the 1890s, when Jim Crow hardened and blacks were disenfranchised. That said, it's also true that the Supreme Court stuck to its guns in a few cases in the first decade of the 20th century, holding that individuals denied enjoyment of their civil rights by private action had remedies only in state courts that clearly weren't going to aid them. In short, I agree with the reader that a violation of "equal protection of the laws" can include states not enforcing facially equal laws, and that, if Congress acts to redress such a situation, it is acting within its powers under Section 5 of the 14th Amendment. But the Supreme Court still has to distinguish between such situations, and pure federal power grabs, as it did in the recent case of United States v. Morrison, holding the Violence Against Women Act unconstitutional in part based on the Civil Rights Cases. It's a debatable point, but I find that it streches credibility to believe that women in the 1990s were being systematically and unequally denied remedies in state court for violence committed against them by men.

Bernstein Critics: Thanks to Eugene's defense of me below, but it raises an interesting issue: there are a few folks out there who love to complain about my posts (you know who you are). Others have complained about other Conspirators. [Edit: And I don't mean occasional disagreement or criticism, I mean, "So and so is ruining the Volokh Conspiracy."] Yet, there is handy-dandy way to exclude any of us from your daily reading: http://volokh.com/index.htm?exclude=[name of blogger], which regular readers are aware of. So why do the complainers continue to read my (or their) posts? I can only assume that I (or they) fall into the "love to hate" category, the way some conservatives just can't wait to fisk Paul Krugman, or some liberals curse at Rush Limbaugh every day (halevai I should have their audiences!) Interesting phenomenon, that.

More on BK: My previous post on Burger King's "generous" offer to give customers a Whopper without a bun for the same price as a Whopper with a bun reminded me of an even better story about BK. In the days before the Veggie Whopper, at a time when I subscribed to Vegetarian Times, I recall that BK told vegetarian inquirers that a vegetarian Whopper was available--a Whopper with the normal bun, lettuce, tomato, pickle, and mayo, but without the burger patty. Burger King "generously" offered this vegetarian version of the Whopper for exactly the same price as a regular Whopper.
BTW, the best deal in vegetarian fast food is by far and away Taco Bell's Bean Burrito[edit: I have yet to try the new "Cheesy Bean 'n Rice Burrito]--order it without the cheese if you are vegan or are watching your weight, or just don't like icky Taco Bell cheese. It's only 79 cents and quite tasty (I have visions of Tyler, who is of course an expert on local ethnic dining, cringing as he reads this).
UPDATE: I've been reminded to mention the short-lived left-handed Whopper. And here is evidence that as of 2001, it was possible to get charged more for a Whopper meal sans meat than for a regular Whopper meal.

Talk about Jews getting on people's nerves: A blogger complains that my friend and coblogger David Bernstein's posts "about judaism" are "getting on [his] nerves," and says that if David doesn't "shut up about judaism (or at least post about something else every once in a while)," or else the blogger will "chang[e] the permalink" ("or maybe not"). I'm actually delighted that David posts a considerable amount about Israel and about American Jews (not, technically speaking, about Judaism), as well as about lots of other topics (see here for all David's recent posts, which include various other subjects).

If people dislike posts about topics related to Israel and to Jews, and think it would be best if the bloggers "shut up" about the subject, then by all means those people should change their permalinks or do whatever else it takes to insulate them from such apparently annoying, unimportant, or unworthy topics.

Silent letters: We all know about the common "silent e," but which letters in English are silent at least in some words? "Silent" is, I realize, not a fully well-defined term, but I mean a letter that is not pronounced (rather than just pronounced in a distorted way, as the first "l" in "colonel"). I exclude situations where two letters in a row have the same sound, for instance the last two letters in "bass" or "clock"; I do not treat either as silent. A word is acceptable if it (and the pronunciation that shows the letter's silence) is listed as an English word in any standard online dictionary. Don't complain that the word is "really foreign" because it's borrowed from a foreign language. Most English words were borrowed from some other language.

I've put up my current tentative answer here; e-mail me if you have words that match some of the letters for which I don't yet have words. No need to send any words for letters for which I already have words, unless the current word is potentially controversial, and the replacement is open-and-shut.

UPDATE: Got lots of e-mails, too many to respond to all individually, I'm afraid, though I appreciate all of them. We now have everything except f, q, and v. "Lacquer" and such don't qualify, I think, for the same reason that "dock" doesn't qualify; "halfpenny" is possible for "f" (thanks to Ken Hirsch), and, surprisingly, "fifth," but apparently both are sometimes pronounced with the f and sometimes without; "chef d'oeuvre" and "roman a clef" are listed by my New Shorter Oxford as still being foreign phrases; "marijuana" is the only one for "j," and I'm looking for something better. So if you have genuine silent f's, silent j's, silent q's, and silent v's, let me know.

Primary prediction restated: A year and a week ago, I said the following.

With the Democratic presidential field almost complete, I offer my first NH primary prediction, 55 weeks in advance. Richard "Eyebrowless Man" Gephardt, who utterly failed to connect with NH voters in 1988, will utterly fail to do so again in 2004. Protectionism, unionism, and midwestern agriculture subsidies just aren't the core issues for NH Democrats. He will finish no better than fifth, behind at least Kerry, Lieberman, Edwards, and Dean. In the 1984 NH Democratic primary there were Democrats who finished behind write-ins for Ronald Reagan on the Democratic ballot. Success for Gephardt in NH will be finishing ahead of write-ins for Bush, and ahead of Al Sharpton; and he might not pull those off.

Latest tracking poll results:Gephardt in fifth place, behind Dean, Clark, and a Lieberman-Kerry tie, within the margin of error of Edwards, Kucinich, and Sharpton.

Conundrum for the day: Here is a philosophical problem I am working on, it also draws on some aspects of tort law, your comments are always welcome:

"There is an arbitrariness in defining the relevant class of risky events. In my lifetime as a driver, I stand some (fairly low) chance of killing an innocent pedestrian. Few people would argue that I should be prohibited from driving. Assume, however, that science prolongs (fit) human life forever, at least unless you are struck down by a car. My chance of killing an innocent pedestrian then would approach certainty, given that I plan to continue driving throughout an eternal life. In fact I could be expected to kill very many pedestrians. Should I then be prohibited from driving? When we make a prohibition decision, should we measure the risk of a single act of driving, or the risk of driving throughout a lifetime? Measuring the bundled risk appears to imply absurd consequences, such as banning driving for people with sufficiently long lives.

Alternatively, measuring the risk of only the single act is vulnerable to counterexamples. Imagine an involuntary game of Russian roulette with very many chambers in the gun, played very many times against me. The chance of my death from any single firing is very small, but surely we would prohibit such a game, looking at the high overall risk of the bundle. In this case we consider the bundled risk, but does this mean that we should stop immortals from driving cars?"

Addendum: I am posing this question in a framework where individual rights have some meaning. So if a given activity (however defined) crosses some threshold level of risk, vis-a-vis its victims, we will consider prohibiting it, even if the associated benefits with the activity are high. We remain with the question of how to circumscribe the activity and thus arrive at a unique measure of risk. Of course some people will view this dilemma as an argument against the idea of rights, and in favor of utilitarianism. Also, please note that this is a fabricated scenario, as philosophers are wont to do. It doesn't matter whether in reality the car will someday be superseded, accidents will cease to be deadly, that the driver is perhaps also a pedestrian, or whatever. It is a deliberately stripped down example to force us to confront how we think about compounded risks.

More on Brazil: Since this blog is now your source for Brazilian immigrant fingerprinting news, we bring you this other tidbit, again from our correspondent David M. Rosenberg:

A flight crew from American Airlines (originating in Miami) refused to submit to the fingerprinting process in São Paulo this morning. The captain allegedly made an obscene gesture to the Brazilian police officers, and the crew was detained and brought to a police station to give a statement. Apparently, the crew will have to return to the US. There was no problem with the passengers on the flight. As of now there is no word from American Airlines, and it is not clear whether or not this incident will impact on the ability of the crew to gain future entrance into Brazil.

Pretty unprofessional behavior, it seems to me. If you want to fly into a country -- especially as a professional part of whose income flows from interacting with the country -- you should follow its immigration laws, especially ones that impose such relatively minor burdens.

Over at TNR: The New Republic website is hopping in the pre-Iowa-caucus countdown.

TNR's [entirely correct] endorsement of Lieberman
The multi-day brawl among TNR writers about that endorsement
Succinct cases for several of the other candidates: Robert Greene for Wesley Clark, J. Peter Scobolic for Clark, Michael Crwoley for Dick Gephardt, Michelle Cottle for John Edwards, Jonathan Cohn for Howard Dean.

Noam Scheiber has come out as the author of &c, which is now his personal blogspace. Combine that with Easterblogg, Dean-o-phobe, and Ryan Lizza's Campaign Journal, it increasingly looks like the least blog-like TNR web-only content is the column space rotated between bloggers Dan and me.

Is this what conservatism has come to? President Bush is planning a new pro-marriage initiative, read The New York Times account. The centerpiece calls for the government to provide $1.5 billion in training "to help couples develop interpersonal skills that sustain "healthy marriages."" In other words, subsidized marriage education and counseling. One bureaucrat from HHS assures us that "All services will be voluntary." The Times speculates whether this is not a sop to conservatives, given that Bush may not offer a strong and full push for a constitutional amendment to ban gay marriage.

Information Requests: Sometimes, when I ask readers for information about a given topic, I get reader emails beginning with "I'm sure many people have mentioned X ..." Sometimes that's true, in which case I will update my post to note that I now now about "X". Often, however, the reader who sends this is the only reader who informed me about "X," and "X" is very interesting So, don't hesitate to respond to a query from me or another blogger; information that you think is obvious or well-known may not be.

Suicide Murder in Israel: Two interesting things about today's suicide murder in Israel. First, the bombing occurred at a checkpoint for Palestinian workers. While Israel is blamed for "immiserating" the Palestinians by cutting off their jobs, whenever Israel tries to let more Palestinians work, Hamas, Jihad, et al. intentionally target the checkpoints, to force Israel to crack down and ensure that Paletinians stay poor and miserable, and thus more likely to support terror! So much for Hamas being a "social welfare" organization, as France has argued. Second, the bomber would have been caught but for Israeli squeamishness about having male soldiers inspect a Muslim woman. Muslims demand respect for their sensibilities, but how often do they condemn their fellow Muslims when they abuse Western sensitivities to their concerrns to commit suicide murders?

Prescient Warnings about Civil Rights Legislation: It is well-known that opponents of the 1964 Civil Rights Act warned that it would lead to racial preferences, and that these concerns were pooh-poohed by proponents. I am looking for other examples of warnings by opponents of the Act labled "extremist" or "hysterical" at the time that have been vindicated, whether in the '64 Civil Rights Act itself or in subsequent legislation. I'm not looking for "States Rights" arguments, but arguments that, for example, the public accommodations provisions would eventually lead to the regulation of private clubs, that the list of groups covered by civil rights laws would eventually expand dramatically, etc. Is there a good book or article describing the arguments made against the Act? (I recognize that some of these arguments were insincere, as they were made by folks with a segregationist agenda, but that does not mean that they turned out not to be prescient).
A good example of what I'm looking for is Eugene's now-famous post on how opponents of the ERA warned in the '70s that it would eventually lead to court-imposed gay marriage.

Wednesday, January 21, 2004

Tuesday, January 20, 2004

Monday, January 19, 2004

Sunday, January 18, 2004

Saturday, January 17, 2004

Friday, January 16, 2004

Thursday, January 15, 2004

Wednesday, January 14, 2004