The Volokh Conspiracy

Friday, February 20, 2004

[Eugene Volokh, February 20, 2004 at 4:10pm] Trackbacks

Second Circuit judges' letter opposing Rule 32.1, for those still interested in this issue . . . .

[Eugene Volokh, February 20, 2004 at 3:04pm] Trackbacks

Supreme Court agrees to hear Padilla ("dirty bomber") military detainee case: Not a surprise, especially given that the Court has agreed to hear Hamdi, the other U.S. citizen military detainee case. Thanks to How Appealing for the news.

[Eugene Volokh, February 20, 2004 at 12:16pm] Trackbacks

A strange work to include in a gallery exhibit "designed to challenge anti-Semitism":

Here's the story from Secular Blasphemy:

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

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

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

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

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

Thursday, February 19, 2004

[Eugene Volokh, February 19, 2004 at 8:46pm] Trackbacks

Investigations based on speech: Keepandbeararms.com is objecting that a gun rights activist is apparently being investigated by the San Francisco police for writing the following letter to government officials:

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

By David Codrea
codrea4@adelphia.net

February 16, 2004

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

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

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

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

Which leaves me with an interesting dilemma.

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

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

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

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

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

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

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

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

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

Please let me know if I have your support.

Sincerely,
David Codrea

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

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

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

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

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

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

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

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

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

[Eugene Volokh, February 19, 2004 at 5:18pm] Trackbacks

"What about the children who have suffered in Iraq?" Harry Belafonte is defending Michael Jackson, and condemning the media:

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

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

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

Belafonte also lashed out at American news organizations' "insatiable appetite" for the Jackson scandal.

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

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

[Eugene Volokh, February 19, 2004 at 1:12pm] Trackbacks

Proposed Rhode Island Homeland Security Act is available here. I don't have the time to blog about it much right now, except to say that many of the ACLU criticisms of it are quite apt. Gov. Dan Carcieri, whose office proposed the bill, deserves to be harshly criticized for this.

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

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

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

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

[Sasha Volokh, February 19, 2004 at 12:30pm] Trackbacks

Technology watch: Here's what I want, one day. Something like an iPod, where I can store a ton of audio files and, say, play it on "random," with the following features:

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

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

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

[Eugene Volokh, February 19, 2004 at 12:26pm] Trackbacks

More on the "Vagina Warriors" protest: From Chris at Work in Progress, some comments on "Not all vaginas are skinny, white + straight" (actual quote from a protester's T-shirt).

[Randy Barnett, February 19, 2004 at 11:42am] Trackbacks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Michelle Boardman, February 19, 2004 at 10:45am] Trackbacks

Ride the Metro, Agree with the Government: Part of the Consolidated Appropriations Act of 2004 (Public Law 108-199, HR 2673, January 23, 2004):

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

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

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

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

[Eugene Volokh, February 19, 2004 at 10:32am] Trackbacks

Jail time for city officials who solemnize gay marriages? California Penal Code sec. 359 (thanks to Xrlq, who has more comments, for the pointer) provides:

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

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

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

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

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

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

[David Bernstein, February 19, 2004 at 9:29am] Trackbacks

PC at UNC: Student at UNC expresses religious objections to homosexual conduct and criticizes homosexuality as "disgusting" in class. Professor sends out an email to the entire class lambasting this student:

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

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

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

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

[Eugene Volokh, February 19, 2004 at 9:06am] Trackbacks

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

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

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

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

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

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

[Jacob Levy, February 19, 2004 at 7:06am] Trackbacks

Response and rejoinder: Justin Katz has a response to my TNR argument about the Federal Marriage Amendment. Not much by way of rejoinder. But if the following matters a great deal:

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

then I don't see how this follows:

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

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

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

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

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

[Sasha Volokh, February 19, 2004 at 7:01am] Trackbacks

Vole Story: Here and here. Also, a libertarian who thinks some Texans are stupid.

Wednesday, February 18, 2004

[David Bernstein, February 18, 2004 at 7:29pm] Trackbacks

Intolerance at Yale Law School: From the Yale Daily News (via How Appealing):

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

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

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

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

[Randy Barnett, February 18, 2004 at 7:23pm] Trackbacks

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

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

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

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

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

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

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

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

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

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

[David Bernstein, February 18, 2004 at 6:36pm] Trackbacks

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

[Eugene Volokh, February 18, 2004 at 5:09pm] Trackbacks

When bad people support good ideas: The University of Michigan student newspaper reports that the KKK has endorsed the anti-race-preferences Michigan Civil Rights Initiative. The MCRI campaign manager sensibly points out that the MCRI has no control over what other groups say; but, the article says,

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

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

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

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

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

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

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

     Thanks to Howard Bashman for the pointer.

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

[Sasha Volokh, February 18, 2004 at 4:56pm] Trackbacks

Be careful what you ridicule: Jack Balkin says, responding to Juan's and Glen's posts (paragraph break inserted):

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

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

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

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

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

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

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

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

[Juan Non-Volokh, February 18, 2004 at 4:31pm] Trackbacks

Assessing Balkin's Case for Public Universities: Jack Balkin has a thoughtful reply to my critique of his case for public universities. He accepts a portion of my argument, but remains unconvinced. He posts, in relevant part:

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

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

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

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

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

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

[Eugene Volokh, February 18, 2004 at 2:28pm] Trackbacks

Life imitates The Onion: David Kaufman points to this fantastic story:

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

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

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

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

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

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

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

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

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

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

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

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

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

[Eugene Volokh, February 18, 2004 at 9:56am] Trackbacks

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

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

[Eugene Volokh, February 18, 2004 at 9:31am] Trackbacks

Blogopoly: Here and here. Pretty funny.

[Eugene Volokh, February 18, 2004 at 9:27am] Trackbacks

"'Breathalyzer in every car' bill passes [New Mexico House of Representatives]": According to KRQE-TV:

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

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

Thanks to Dan Gifford for the pointer.

[Eugene Volokh, February 18, 2004 at 8:54am] Trackbacks

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

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

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

[Juan Non-Volokh, February 18, 2004 at 8:04am] Trackbacks

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

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

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

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

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

UPDATE: Glen Whitman piles on.

UPDATE: I respond to Balkin's response here.

[Eugene Volokh, February 18, 2004 at 7:53am] Trackbacks

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

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

[Jacob Levy, February 18, 2004 at 7:02am] Trackbacks

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

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

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

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

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

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

Tuesday, February 17, 2004

[David Bernstein, February 17, 2004 at 6:35pm] Trackbacks

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

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

[Eugene Volokh, February 17, 2004 at 3:16pm] Trackbacks

Federal Marriage Amendment: The Feb. 14 Washington Post has the following exchange about the argument that the Federal Marriage Amendment may prohibit even legislatively created civil unions:

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

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

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

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

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

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

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

[Eugene Volokh, February 17, 2004 at 3:01pm] Trackbacks

"Racist, offensive, and in violation of shared community values": From the Inland Valley Daily Bulletin:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Jacob Levy, February 17, 2004 at 2:43pm] Trackbacks

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

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

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

[Eugene Volokh, February 17, 2004 at 1:56pm] Trackbacks

Natural born citizens: There's a nice short piece on the natural-born citizenship requirement for President in The Green Bag. Interestingly, there's some controversy even about whether children born abroad to U.S. citizens (for instance, to American servicemen stationed overseas) would qualify.

[Eugene Volokh, February 17, 2004 at 1:00pm] Trackbacks

Mayor Gavin Newsom and ex-Chief Justice Roy Moore: San Francisco Mayor Gavin Newsom is issue marriage licenses to gay couples, something that California statutes definitely do not allow. Should he be condemned the way Alabama ex-Chief Justice Roy Moore was condemned when he insisted on keeping up the Ten Commandments monument in the courthouse?

     I think the answer is "no," or at least "not yet," though I know that others disagree (see InstaPundit's post and Rod Dreher in NRO's The Corner). Here's why.

     I agree that generally government officials ought to obey the law, even when they rightly believe that the law is wrong; that is part of what we think of as the Rule of Law. We can all imagine exceptions, when the law is so horribly wrong that the demands of justice vastly outweigh the benefits of the rule of law. But in those situations, those who don't share the government official's underlying judgment may rightly condemn him, not just for error in judgment, but for interference with the rule of law.

     But part of American law is the principle that unconstitutional laws are not laws at all. This principle isn't always taken to its logical conclusion, but generally it is understood to be the principle. As I understand it, Mayor Newsom's position is that California's male-female-only marriage law -- which is only a statute, albeit one that was implemented by a voter initiative -- violates the California Constitution. If he's right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command. His actions are, I suspect, partly calculated to create a test case that would lead the California Supreme Court to decide the matter.

     It seems to me that this sort of conduct is permissible, and is in fact the way constitutional law is often developed. In recent years, people have been able to challenge laws in other ways besides not complying with them, for instance by bringing a declaratory judgment action. But this is, as I understand it, a relatively modern development, and it may not always be available even now. It certainly has not been seen as the only legitimate way to challenge a law that one believes is unconstitutional.

     The matter is different, I think, when (1) there's a clear precedent squarely rejecting the government official's constitutional position, or (2) a court order to the government official requiring the official to act in a certain way (and the official has not appealed the order). Here, I think the rule of law arguments do cut very much in favor of requiring the official to comply with the legal rules, even ones with which he disagrees. That's why I think Justice Moore was acting wrongly, especially when he defied a federal court order; both factors (1) and (2) were present in his case.

     Neither (1) nor (2) are present as to gay marriages in California; and the Massachusetts Supreme Judicial Court decision that gay marriages have to be recognized in Massachusetts suggests that a similar argument in California is at least plausible. So though I think Mayor Newsom's legal argument will and should lose, I think he's acting within the American constitutional tradition in his actions. People can certainly disagree with his decision on the merits, and argue that it doesn't deny equal protection of the laws for the state to limit marriages to male-female couples. But I don't think that one ought to also fault Newsom for usurpation, or departure from the rule of law, so long as his position is a legally plausible interpretation of the state constitution.

     Again, this is a general principle; there will naturally be some exceptions. For instance, if an organization refuses to give a gay married couple certain benefits that state law reserves to married couples, I don't think that administrative agencies should try to impose fines or penalties on that organization on the theory that the gay married couple is really married. Private entities should generally (again, with some possible exceptions) be entitled to rely on the law as it now is, and shouldn't be penalized for failing to anticipate a constitutional decision that hasn't yet been made. Moreover, I realize that Chief Justice Moore could have argued that he was trying to create a test case challenging the very validity of federal judicial orders or federal precedent as applied to state officials; I think that's a losing argument, and one that does jeopardize the rule of law, but people may disagree on that. Finally, the California Constitution limits the power of "administrative agenc[ies]" "[t]o declare a statute unenforceable [or unconstitutional], or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional." I think that cities and city officials don't qualify as "administrative agencies," but apparently that's part of the legal challenge to Newsom's actions.

     Still, I do think the basic point remains: A government official is entitled to -- and sometimes possibly even obligated to -- refuse to comply with laws that he thinks are unconstitutional, when there's a serious argument that they're unconstitutional, when there's no clear precedent that says they're constitutional, and when there's no court order ordering him to comply with the laws. That's Mayor Newsom's situation, at least right now. Such challenges to existing laws are part of our rule-of-law tradition. But when a government official (especially a judge) refuses to follow pretty clearly binding precedent, and also flouts a court order, then I do think the rule of law is jeopardized.

[Jacob Levy, February 17, 2004 at 10:40am] Trackbacks

San Francisco: I am, as I've said a number of times, strongly in support of gay marriage.

That said, the decision by San Francisco's city government to start issuing same-sex marriage licenses doesn't at all please me the way it does Andrew Sullivan. San Francisco officials are obligated to implement California state law. The California mini-DOMA was put into the state constitution by initiative [SEE UPDATE BELOW; I was mistaken about this part]; the SF officials can't claim to be upholding California's equal-protection clause against a statute that violates it. So their claim must be that they're upholding the federal equal-protection clause against a state constitution that violates it. In this, they are making up an interpretation of the Constitution to suit their needs, and acting in defiance of the rule of law. Their offices are creatures of the California constitution; they're not free to disregard that constitution at their convenience.

Note that the problem lies with the city officials, not with the gay and lesbian couples. The former are acting outside their authority. The latter haven't committed any offense. I'm always prepared to believe the worst of John "buggery, buggery, buggery" Derbyshire on gay issues-- but Sullivan actually does him an injustice by saying

I concur with John Derbyshire that one possible response to the civil disobedience in San Francisco is the mass or singular arrest of married couples or the mayor. Some on the Christian right agree and want to arrest Newsom. Go ahead. Make his day. I'm sure many of those newly married couples would also gladly go through the arrest procedure. Being thrown in jail for loving and committing to another person for life would highlight much of the injustice that now exists. The arrests would further the groundswell of empowerment that is now dawning on gay America. So bring it on. We shall overcome.

Derbyshire actually said "Can't someone do a citizen's arrest of these law-breaking registrars in San Francisco? Where on earth are the state authorities? Where is the Governor?" He didn't mention arresting the couples.

[As far as I can figure, the officials couldn't yet be arrested. Once a court issues the inevitable injunction, if they break it, then they can be arrested for contempt. But acting outside the bounds of one's constitutional authority isn't, directly, a criminal offense; it just makes the purported marriage licenses void.]

UPDATE: I appear to have been mistaken about one important thing: Proposition 22 (California's mini-DOMA) amended the family law statutes, not the constitution. (I don't come from an initiative state; my impression had been that initiatives equalled constitutional amendments. Aren't they supposed to be superior to legislative enactments? If they just amend statutes, what's to stop the legislature from amending them back again?) On the other hand, the California constitution apparently specifically prohibits state agencies and non-judicial officials from unilaterally deciding that state statutes are unconstitutional. The Lambda/ ACLU folks are arguing that city officials aren't relevantly state officials, but that seems like a stretch to me; city governments are entirely creatures of state law. Thanks to Gabriel Rosenberg and Kurt Hemr for the correction. The Lambda briefs are available here.

SECOND UPDATE: Statutory initiatives in California, which require only a majority rather than a supermajority vote, cannot be reversed by the legislature without subsequent voter approval of the reversal. This, it seems to me, makes them quasi-constitutional, or puts them into a curious middle ground between the state constitution and state legislation.

[Eugene Volokh, February 17, 2004 at 6:44am] Trackbacks

Fortunately, it turned out he was probably just a criminal: Is anyone else a bit puzzled by the tone of this article from the Syracuse University newspaper?

Student accused of blackface use

An alleged blackface incident took place over the weekend, but those involved say it could all be a misunderstanding.

Just after midnight on Saturday morning, the Department of Public Safety received a report that a student was wandering around Watson Residence Hall with his face painted a dark color, according to a Public Safety report.

The student is a new brother of Delta Tau Delta . . . .

The student told officers that the face paint was camouflage -- not blackface -- and that he was actually on his way to rob a house, Hall said.

"As far as we know, this was all a misunderstanding," [the fraternity president] said. "We are working with the university and (the Office of Greek Life and Experiential Learning)."

Even though the student claimed that he was going to attempt a burglary instead of dressing in blackface, DPS officers will continue to research both scenarios, [DPS director Marlene] Hall said.

"We are still looking at it, investigating it and working with other departments on campus," Hall said. "So it could be looking at burglary, it could be other things as well that we would be looking at." . . .

As for the student's explanation about the robbery, there was an anonymous tip called in earlier that day to a DPS hot line which confirmed there was a planned burglary, according to a Public Safety report. . . .

She said the house, which was reportedly planned to be burglarized, was vandalized.

"The appropriate measures are being taken right now," Sheaffer said. "We are working with the university to figure out an appropriate punishment." . . .

Seems to me that the serious accusation is attempted burglary or possibly conspiracy to commit burglary. The second most serious accusation -- if the burglary story is fake -- would be lying to the police, which might be a crime under state law or at least is grounds for disciplining the student. The use of blackface as such, which is generally constitutionally protected under the First Amendment, see Iota Xi v. George Mason University993 F.2d 386 (4th Cir. 1993) (if no attempted burglary is involved, and setting aside content-neutral antimask laws, which don't seem to be implicated here), would be the least serious accusation. Syracuse University is a private university, and thus isn't bound by the First Amendment, but most leading private universities generally describe themselves as being morally constrained by constitutional principles, even though they aren't legally constrained by them.

"[I]t could all be a misunderstanding," with its suggestion that the real explanation (burglary) is less serious than the apparent one (blackface), strikes me as out of place, unless I'm picking up a subtext that isn't really there.

[Sasha Volokh, February 17, 2004 at 5:36am] Trackbacks

Wlonk blonk: Natalie Solent explains, with reference to a favorite poem of mine (written in the Northwest Midlands dialect of Middle English, and one of the Three Great Works of 14th-century English literature), Sir Gawain and the Green Knight. (Note: The versions I link to are edited by Tolkien, but the modern translations aren't by him. Let me know if you find the Tolkien translation online, and I'll link to it for the benefit of the Tolkien buffs. But really, you should read it in a nice glossed version in Northwest Midlands dialect!)

[Eugene Volokh, February 17, 2004 at 4:23am] Trackbacks

Gay marriages in Boulder, 1975: The San Francisco Chronicle reports:

Back in 1975, when she was the county clerk for Boulder, Colo., [Clela] Rorex made headlines -- and enemies -- when she changed the words "male" and "female" to "person" on the county's marriage license application and allowed six same-sex couples to wed.

None of the licenses has held up in court -- but then, not all of them have been challenged. . . .

Shortly after taking office in 1975, Rorex was approached by a Colorado Springs couple who had been turned away by El Paso County in their quest to marry.

"The county clerk there said, 'I don't do that, but they do that kind of thing in Boulder,' " apparently because Boulder had recently passed an ordinance outlawing housing discrimination against same-sex couples, Rorex said.

"I got an opinion from the district attorney's office indicating that the marriage statute at that time did not preclude giving a marriage license to people of the same sex," she said. "I issued a license and a few more before the state attorney general weighed in."

At the time, Colorado Attorney General J.D. MacFarlane told the New York Times he didn't consider the licenses valid but had no plans to challenge them in court.

"At that point, the D.A. backed away and said that the state attorney general's office does not have superiority, but in the eyes of the public, they do," Rorex said, adding that she was afraid the certificates would mislead couples into thinking they had rights the state would not recognize.

So, about a month after she began, she stopped issuing same-sex marriage licenses. . . .

One outraged man came into town with his mare, Dolly, and asked Rorex to marry them. Her answer was no -- at 8 years old, the horse was under age, she said. . . .

Thanks to reader Jim Herd for the pointer.

[Tyler Cowen, February 17, 2004 at 4:04am] Trackbacks

Why do we not have a libertarian society? Read the thoughts of Will Wilkinson, a very smart philosopher.

Monday, February 16, 2004

[David Bernstein, February 16, 2004 at 8:40pm] Trackbacks

"Presbyterian Peacemakers": I know I'm supposed to be on a blogging slowdown, but how can I resist stories like this one? A group called "Presbyterian Peacemakers," which on its website professes to pursue "a journey of racial justice and understanding," as well as a commitment to overcoming prejudice, brought a virulently anti-Israel speaker to Wooster College who gave a blatantly anti-Semitic presentation. This speaker, among other things, "presented the fraudulent, antisemitic screed The Protocols of the Elders of Zion as a factual book that 'explains' how Zionists have been taking over the world's political, economic, religious and communication organizations." This lecture was presented twice, including during an ethics class. The individual responsible for inviting the anti-Semitic lecturer had this to say for himself: "I regret that the director of the Hillel Foundation (Professor Peter Pozefsky) chose to be offended by it, rather than take it as a teachable event." Gotta love those Presbyterian Peacemakers. I'd hate to see what the Presbyterian Racist Warmongers are like. To make matters at Wooster worse, Prof. Pozefsky's valid concerns about this and other anti-Semitic speakers--concerns that reportedly involved no calls for censorship--were ignored or critcitized by his colleagues. Alumni and friends of Wooster College, let your voices be heard!

[David Bernstein, February 16, 2004 at 7:42pm] Trackbacks

Speaking in New Haven and Long Island Tuesday: I'm speaking at Yale Law School at 12:45 tomorrow (Tuesday) in room 111, and at 5:00 pm at Touro Law School on Long Island. Free and open to the public.

[Tyler Cowen, February 16, 2004 at 7:13pm] Trackbacks

World demographic trends: Nicholas Eberstadt of AEI offers a fascinating article on world population. Here is one interesting paragraph of many:

"Between 2000 and 2025 China's median age is set to rise very substantially: from about 30 to around 39. According to unpd projections for 2025, in fact, China's median age will be higher than America's. The impending tempo of population aging in China is very nearly as rapid as anything history has yet seen. It will be far faster than what was recorded in the more developed regions over the past three decades and is exceeded only by Japan. There is a crucial difference, however, between Japan's recent past and China's prospective future. To put the matter bluntly, Japan became rich before it became old; China will do things the other way around. When Japan had the same proportion of population 65 and older as does China today (2000), its level of per capita output was three times higher than China's is now. In 2025, 13.4 percent of China's population is projected to be 65-plus; when Japan crossed the 13.4 percent threshold, its per capita gdp was approaching $20,000 a year (constant 1990 ppp dollars). One need not be a "Sino-pessimist" to suggest that China will be nowhere near that same economic marker 22 years from now."

And how about the U.S.?

"By the unpd's medium variant projections, the United States is envisioned to grow from 285 million in 2000 to 358 million in 2025. In absolute terms, this would be by far the greatest increase projected for any industrialized society; in relative terms, this projected 26 percent increment would almost exactly match the proportional growth of the Asia/Eurasia region as a whole. Under these trajectories, the United States would remain the world's third most populous country in 2025, and by the early 2020s, the U.S. population growth rate — a projected 0.7 percent per year — would in this scenario actually be higher than that of Indonesia, Thailand, or virtually any country in East Asia, China included."

Read the whole article.

[David Bernstein, February 16, 2004 at 8:45am] Trackbacks

On Sasha on Compelled Speech: At the risk of making the VC read like The Corner, I just wanted to note that I agree with Sasha that government ownership and control of universities inherently raises troubling issues of freedom of expression. Indeed, in You Can't Say That, I wrote, "The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all." But this doesn't change my view that once the government is allowed to run a university, it should be allowed to run it in a way that pursues reasonable educational goals, even if doing so conflicts with the values of certain students. To take an extreme example, the creationist shouldn't get equal time with the evolutinist in the biology department. But better, certainly, (from a civil liberties perspective at least) that there should be no state-run universities.

[Sasha Volokh, February 16, 2004 at 7:33am] Trackbacks

On compelled speech: I actually don't find the case below discussed by David Bernstein all that ridiculous. Well, it may be completely wrong as a matter of First Amendment compelled speech doctrine. But as a matter of general free-speech and role-of-government principles, I do find this sort of behavior somewhat problematic.

A useful role these sorts of "ridiculous" accommodation claims serve is to remind us how ideological even innocent-looking activities can be. Putting on Gone with the Wind means that someone has to say "Damn," even if it's against their religion (or other deeply held belief), and what if this is required to get a drama degree from a public university? So in addition to the primary moral issue with public universities -- that is, they take our hard-earned money to provide privileges to other people -- they also, by their very nature, have to impose conditions (in this case, speech-based) on people's behavior to distribute benefits.

But, you say, this is inevitable in any sort of government program -- why, you can't be in the Army unless you agree to do certain things that you wouldn't otherwise choose to do, and which you have the right not to do! Exactly. The Army and other similar institutions, which are on balance morally justified (they protect more rights than the rights they violate by taxing people, restricting employees' speech, and killing innocents in war), still survive under this analysis. But institutions that don't protect anyone's rights, but only exist as a way of distributing benefits -- like universities, arts funding boards, and the like -- have this additional conditional compelled speech or compelled action problem going against them.

Perhaps, for various reasons, it's not feasible to write such a doctrine into the First Amendment. But it does provide an additional moral reason for disliking government institutions that don't protect people's rights.

UPDATE: Sean O'Hara at Gibberish in Neutral says that this is like "someone going for a biology degree but refusing to study evolution, or an English major specializing in 20th Century British literature objecting to an assignment on D.H. Lawrence -- some fields of study just aren't always compatible with every belief system." I agree -- but does this mean that (1) the government should offer these fields of study anyway, or (2) that the government just shouldn't offer those fields of study? Another way of phrasing (2) would be: (a) The government shouldn't set up a system that rewards people for subscribing to one ideology over another, violating their religious or other deeply held beliefs, etc. (b) Unfortunately, any drama/literature/etc. program worth its salt will violate someone's deeply held beliefs. (c) Therefore, because the government would only be permitted to offer an awful, useless, watered-down program, it should leave it to the private sector.

So David and I agree that the ideal would be for the government not to offer the program at all, which is all I'm really getting at. Another interesting question is what's the second best. David suggests that if the government offers the program, it should "pursue reasonable educational goals"; and this is attractive, but it kind of assumes that the "pro-science" perspective (in the biology/evolution context) or "pro-non-ideological-acting" perspective (in the acting/saying-the-F-word context) is a "reasonable educational goal," which is precisely what these religious objectors are disputing. I don't agree with the religious perspective, but I appreciate that they're forcing us (or at least trying to force us) to recognize that even innocuous-looking programs are in reality highly ideologically charged -- a view that the radical left has also been (rightly) pushing for ages. Most of us agree that religious education (even if we can agree that it's desirable in principle) can't be done both effectively and unbiasedly, so the government shouldn't do it at all; maybe we should extend that thinking much more broadly.

[Tyler Cowen, February 16, 2004 at 7:23am] Trackbacks

Statism as the People's Romance: Daniel Klein, a good friend of mine, has written a very interesting essay on The People's Romance: Why People Love Government (as much as they do). Klein writes from a libertarian point of view, asking why people are so attached to government, even when the record of government in an area is a poor one. He suggests that the desire to be part of a collective movement motivates much support for government, that the state is uniquely suited to satisfy such collectivist urges, and that we should resist our psychological tendencies in this direction. This essay is part of Klein's broader research program of developing a sociology and psychology of why libertarian ideas have not met with greater success. Indeed for any libertarian this should be a central question. I find Klein and Jeffrey Friedman (of Critical Review) to be the two most important thinkers on this topic.

While I consider myself a "small l" libertarian, my perspective differs from Klein's in a number of ways. For instance I tend to take "The People's Romance" as a constraint to a greater extent than does Klein. I see politics as a question of trading in one "mythology" for another, but a mythology of some kind is always necessary. This will constrain our ability to attain superior solutions, yet it is a constraint that typically receives little attention from economists. On net, I suspect that our American version of The People's Romance does more to support liberty than damage it. I wonder whether bad policies are often not the price of our highly valuable macro-myths. Klein and I discuss these topics frequently, read his whole essay to see his take on what has gone wrong in Western societies.

[Sasha Volokh, February 16, 2004 at 7:23am] Trackbacks

Wish I'd been there: Via Hanah, pictures from the San Francisco gay weddings.

[David Bernstein, February 16, 2004 at 5:05am] Trackbacks

Acting Class and the First Amendment: A bizarre, unanimous opinion from the Tenth Circuit in Axson-Flynn v. Johnson, 2004 WL 198304 (found via Overlaywered). Ms. Axson-Flynn was accepted into an acting program at the University of Utah. When she auditioned, she told the program directors she would not use the "F" word, take the Lord's name in vain, or take her clothes off. They accepted her anyway. Once in the program, it became clear that her professors expected her to recite dialogue as written during acting exercises, including the "F" word and other objectionable language, and that the program directors backed them in this expectation. Completely unfair to Ms. Axson-Flynn, given that she had stated upfront her limits. But a violation of her rights to freedom of speech and freedom of religion? Nonsense! The Tenth Circuit, however, thinks she deserves a jury trial on these issues, and states that the test for compelled speech for college students should be the same (or perhaps even stricter!) as for high school students, neglecting the facts that (1) college students are adults and (2) college students, to a large extent, choose their classes, while high school students, to a large extent, don't.
The eminent Prof. Michael Paulsen of the University of Minnesota, who represented Ms. Axson-Flynn, would apparently like to require all universities, public and private, to accommodate the religious sensitivies of acting students: "No university professor has to teach their class in a way that is hostile to an individual's religious liberty," Paulsen said. "You can recognize professors' academic freedom rights, but at the same time recognize that students have freedoms, too." Like the freedom to require your drama professor to let you conclude Gone With the Wind with "Frankly my dear I don't give a dang!"? Please. Certainly private universities have their own First Amendment rights to run their acting programs free from government interference, including and especially the censorship that would be involved in bowlderizing language to suit religious sensitivies. [Update: In fairness to Paulsen, I don't know if he would try to impose the same "religious freedom" rules on a private university he is trying to impose on public University of Utah.] Perhaps Eugene will have more to say about this.

[Randy Barnett, February 16, 2004 at 12:38am] Trackbacks

This Week's Tour After 10 days on the road discussing Restoring the Lost Constitution, this week's tour is light. A talk at Vanderbilt University Law School in Nashville at noon on Tuesday (2/17) and another at Boston University School of Law at 1:00pm on Wednesday (2/18). The full schedule can be found here. (Some room/time details for the rest of the tour can be found here.)

Next week: Temple and Penn in Philadelphia.

Sunday, February 15, 2004

[Jacob Levy, February 15, 2004 at 11:34am] Trackbacks

Emergency response: Because of a family conflict of interest (which I'm not going to discuss further, but I'll note that there is one) I haven't blogged much about what's sometimes called the "War on Science." ( I have written here, at TNR, registration required, on the general category of 'gag rules' of which several of the 'war on science' cases are a subset.)

The items in this indictment include: a scare campaign against NIH for funding studies about things that offend the sensibilities of Focus on the Family (for example, studies that try to understand sexual practices and decisions among prostitutes-- something that one might think well worth studying in order to figure out how to slow or disrupt the vectors of HIV transmission); pressuring the CDC to back off of support for condoms as part of HIV-prevention; and pressuring the National Cancer Institute to give credence to the scientifically-unsupported claim of a link between abortion and cancer. This isn't the first administration to meddle in scientific review processes for political purposes, but the current administration's version is particuarly worrisome. It's concentrated on public health in general and reproductive health in particular, interfering with the ability of public policy to deal honestly and competently with AIDS in particular.

Now, strict libertarian principle (or even strict Rawlsian-neutralist liberal principles) might tell us that state funding of research is a bad idea, but doesn't give us any guidance as to how it should be structured if it exists. My view is something like this: if state funding of research is justified, it has to be because of the value of getting good science and good research. That requires that the programs, to have merit, have to be insulated as much as possible from political interference and left free to pursue good science. The basic mechanism for this is peer review. Without an open process vetted only by peer review, NIH, the CDC, and all the rest become pure pork, and arguably detrimental to the pursuit of good science. (An analogy, for my libertarian bretheren: we don't need a state-provided currency. But given that we have one, it's better that we have an independent Federal Reserve than if monetary policy were set by the Secretary of Treasury or by Congress.)

Now another case, maybe, and one that doesn't involve any complicated questions about funding. The FDA has delayed a decision on whether to make an emergency contraceptive ("morning-after pill") available over-the-counter. EC is effective only within 72 hours of intercourse (because it is not an abortifaceant). The need to get a prescription for it severely limits access. The FDA's expert panel voted overwhelmingly for over-the-counter access in December, but social conservatives have been putting a great deal of pressure on the administration to block approval. Delays in the approval process aren't at all unheardof. The FDA sets its own rules and its own timetables. But the safety of EC has been very, very thoroughly studied. The safe betting is that this is not a delay on the scientific merits but rather an attempt to appease the religious right (for at least a little while, and maybe until after the election), at a real cost, both in terms of freedom and in terms of an increase in unwanted pregnancies-- which almost certainly means an increase in abortions, later on.

UPDATE: See more from Mark Kleiman and Eszter Hargittai.

I've gotten a bunch of e-mail complaining about my simply saying "EC is not an abortifaceant." EC is ineffective after implantation, as far as we can tell; and implantation is what doctors use to mark the beginning of pregnancy, because it's when the relevant changes to the woman's body begin. EC therefore doesn't terminate pregnancies, and is not medically classified as an abortifaceant. Of course, to those whose concern is with protecting the lives of newly fertilized eggs, implantation is not the relevant beginning, and they class EC (like IUDs) as an abortifaceant. Terminological dispute duly noted.

It appears, however, that EC is still more efficacious at preventing conception post-intercourse (remember, there can be quite a long gap between those two events). The sooner it's taken, the more likely it is that it's preventing conception rather than preventing the implantation of a zygote. I would think that this would make it seem like a matter of moral urgency to pro-lifers-who-really-believe-conception-is-the-moment that women take EC as rapidly as possible, which requires over-the-counter access rather than waiting for a prescription. But it doesn't seem to work that way.

Other folks e-mailed to complain that the Clinton administration interfered with review processes as well, and that the EPA's notorious meta-analysis of second-hand smoke studies was bad. Yep. Agreed. But the current administration has been undermining NIH and CDC pretty continuously. Moreover, if push comes to shove, I do think that the consequences of blocking good HIV research and HIV-prevention strategies are worse than the consequences of a too-restrictive policy on second-hand smoke, though I certainly do oppose such excessively restrictive policies.

[Tyler Cowen, February 15, 2004 at 10:57am] Trackbacks

Songs of obsession: Read David and Juan immediately below. Apropos their topic, I have a few nominations for best all-time songs about obsession, particularly love obsession:

"Aneurysm," by Nirvana.

"I Want You (She's so Heavy)," by The Beatles.

"Mother," by John Lennon, plus much of Lennon's Plastic Ono Band album.

And if you want to get sweet, there is always "Every Day," by Buddy Holly.

Addendum: CrookedTimber has picked up the post, if you have ideas of your own, post them to the comments section.

[David Bernstein, February 15, 2004 at 7:32am] Trackbacks

Obsession Apropos of Juan's link just below, the original version of the '80s song Obsession, recorded by Michael DeBarr [update: Des Barres] and Holly Knight (or so I recall from WLIR, 92.7 in Long Island), had the same lyrics, but did have emotional depth in the way it was performed, unlike the Animotion version that became a minor hit.

[Juan Non-Volokh, February 15, 2004 at 6:18am] Trackbacks

Sunday Song Lyric: Last week, Instapundit and Lileks reminisced about Animotion's cheesy `80s single, "Obsession." I am all for `80s music, and the concept of obsession is a rich vein to mine for song lyrics. But Animotion's song is a bubble gum dance song. There's no pathos or emotional depth. For my money, the'80s song that captures the nature of obsession - musically and lyrically - is "Ode to Boy" by Yaz (that's "Yazoo" to any Brit readers).

When he moves I watch him from behind
He turns and laughter flickers in his eyes
Intent and direct when he speaks
I watch his lips
And when he drives I love to watch his hand
White and smooth almost feminine, almost American
I have to watch him.

In his face age descends on youth, exaggeration on the truth
He caught me looking then but soon his eyes forgot
And everything he seems to do reflects just another shade of blue
I saw him searching into you and ached a while

I watch his lips caress the glass,
His fingers stroke its stem and pass
To lift a cigarette at last
he dries his eyes
From a shadow by the stair
I watch as he weeps unaware
That I'm in awe of his despair, but I am there

In his face age descends on youth, exaggeration on the truth
He caught me looking then but soon his eyes forgot
And everything he seems to do reflects just another shade of blue
I saw him searching into you and ached a while

[Tyler Cowen, February 15, 2004 at 4:18am] Trackbacks

Don't trust Amazon reviews: Deltoid discusses the latest scandal of Amazon reviewing. A mistake led the identities of Amazon reviewers to be revealed on the Canadian web site, it turned out that many of the reviews were puff pieces by authors and their friends. Negative reviews often had a conflict of interest motive, and were written by the author's enemies. I'll repeat my previous advice on this matter. Don't put much weight on the average number of stars. The better guide is simply how many reviews have been written. That reflects whether anyone felt passion about the book, noting that passion is not always the proper response to a book. Thanks to Curtis Melvin for the pointer.