The Volokh Conspiracy

According to the AP,

Condoleezza Rice said Thursday that terrorists today are driven by the same hatred that inspired Klansmen to bomb a church in 1963 in her hometown of Birmingham, Ala. . . .

The bombing at the Sixteenth Street Baptist Church in Birmingham killed four girls, including her friend, 11-year-old Denise McNair, and was meant to instill fear, Rice said.

"Those terrorists failed because of the poverty of their visions — a vision of hate, inequality. . . . And they failed because of the courage and sacrifice of all who suffered and struggled for civil rights." . . .

An apt analogy, on which Clayton Cramer aptly elaborates:

It is a very fitting comparison. I am afraid that most Americans don't really know what "lynching" involved. . . . [H]anging someone would have been positively humane compared to what lynch mobs often did. It was quite common to castrate the victim before hanging him. Sometimes, victims weren't hung, but burned alive.

Think of Nick Berg -- screaming in pain as they cut off his head with a knife. The analogy really does fit quite well. . . .

Paul Craig Roberts responds to my criticisms:

As everyone knows, Brown was not a 14th Amendment decision. Had it been, the problems I have identified would not have arisen. As my book makes clear, I agree with Justice Harlan's dissent to the Plessy decision. However, remember that the Plessy ruling did not uphold legal inequality. All sorts of inequalities in practice existed, including in the white schools. Being neighborhood schools, schools were segregated by class as well as by race. Unless they were

mismanaged, rich school districts could have better equipped schools.

Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender. These preferences are throwbacks to the status-based rights of feudalism. In place of practical inequality, we now have legal inequality.

Another devastating result of Brown is that it was influenced by--in my opinion, based on--Myrdal's book, which concluded that American democracy could not overcome segregation, because Americans on the whole, including Northeast liberals, were too racists in their views.

In other words, Myrdal applied Karl Marx's denial of the existence of good will between classes to races, as feminists have applied it to genders. As Marx made clear, in the absence of good will, coercion is the only effective force.

The Civil Rights Act followed in this train, invading freedom of conscience and substituting coercion for persuasion. This radically changed the nature of reform. In place of persuasion and good will, we now have rule by judges.

The Vinson Court was opposed to segregation and wanted to rule against it in 1952 but would not because the justices understood that it would usher in kritarchy. As you were born into kritarchy, their concerns may be a mystery to you. Justice Reed, who in the end went along with

the 1954 decision, knew it would fundamentally change the nature of the American political system. I saw in the news the other day that a federal judge in Kansas ordered an entire school system closed because it didn't meet his standards.

Lawrence Stratton and I told the story of how the civil rights revolution went amiss in The New Color Line (1995). The book was widely and favorably reviewed. After 9 years, no one has been able to challenge or refute our work.

There are many things I disagree with here. To begin with, I simply don't understand how Brown v. Board of Education, which held that "separate but equal" programs were unconstitutional, "ushered in kritarchy — government by judges," while Harlan's dissent in Plessy v. Ferguson, which would have held the same thing, was proper.

I also don't understand how one can say that "the Plessy ruling did not uphold legal inequality. All sorts of inequalities in practice existed, including in the white schools." Plessy v. Ferguson upheld a legal requirement that railroads segregate people based on race. That's precisely why Harlan dissented; if "the Plessy rulling did not uphold legal inequality," then how can Roberts "agree with Justice Harlan's dissent"?

But what most strikes me is Roberts' continued insistence (see here for more examples of this argument on his part) that:

Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender.

"After the civil rights revolution, . . . [t]here are now legal preferences based on race and gender." There have always been legal preferences based on race and gender in America, from the date of the Constitution. Women used to be unable to vote. They used to be barred by law from various jobs. They were kept from being lawyers. They were routinely discriminated against by the government (let's set aside private institutions here, since we're talking about the Equal Protection Clause) in hiring.

Blacks were, even after the end of slavery, subjected to Jim Crow, which surely did not involve their being treated as equal under the law. They were excluded from various government jobs and government-run universities. They were denied the vote by government action. The list of "legal preferences based on race and gender" given to whites and males (and, in some instance, females) long before the civil rights revolution could go on quite long.

It is certainly true that there are now some legal (in the sense of overtly acknowledged) government-imposed preferences based on race and gender in favor of nonwhites and women, and some government-imposed but covert preferences based on race and gender in favor of whites and men as well as nonwhites and women. I have strongly opposed these myself. But bad as they are, they are far less than the vast, systemic, governmentally imposed race and gender discrimination that existed before the 1960s.

I repeat these facts not because they are somehow novel. They are utterly old hat. They are truisms though no less true because of that. What shocks me is that despite their obviousness, Mr. Roberts' columns routinely frame the matter as if race and sex preferences were something novel, some post-1954/1964 fall from an earlier grace — as if the past massive legal preferences for whites and men are irrelevant and barely worth mentioning, while the present legal preferences for nonwhites and women are monstrous.

So How Appealing reports, pointing to the ACLU's standing up for a student's right not to have his religious speech discriminatorily excluded from a high school yearbook. Very glad to hear that the ACLU was on the right side of this.

I think we should call the California Bar about this line from Schwarzenegger's lawyers complaint against the bobble-head people (Oak Productions, Inc. v. Ohio Discount Merchandise, Inc., Cal. Superior Ct. no. SC081563 (filed Apr. 30, 2004)) (emphasis added):

10. Plaintiff owns all rights of publicity of Arnold Schwarzenegger ("Schwarzenegger"), a universally known motion picture star and celebrity who, for more than three decades, has starred in and received critical acclaim for his performances in motion pictures that have been viewed by millions of people . . .

(Actually, I think he's done quite a good job in many of his movies, but this is a bit much.)

though apparently "objective" in the sense of "goal" rather than in the sense of "impartial." Check out the opening paragraphs of this New York Times story from yesterday:

When Mildred Fruhling and her husband lost their prescription drug coverage in 2001, they suddenly faced drug bills of $7,000 a year. Mrs. Fruhling, now 76, began scrambling to find discounts on the Internet, by mail order, from Canada and through free samples from her doctors.

"It's the only way I can continue to have some ease in my retirement," she said.

Last week, when the federal government rolled out a new discount drug program, Mrs. Fruhling studied her options with the same thoroughness. What she found, she said, was confusion: 73 competing drug discount cards, each providing different savings on different medications, and all subject to change.

"I personally feel I can do better on my own," she said. But she added, "At this point, I don't think anyone can make an evaluation." . . .

Now here's the editor's note, which was appended to the story today:

Editors' Note: May 13, 2004, Thursday

An article yesterday about confusion surrounding new prescription drug discount cards that are being offered to Medicare recipients included comments in the first four paragraphs from Mildred Fruhling and later in the article from Dr. Sydney Bild.

Unknown to the writer, both had been interviewed for a video on a Web site operated by Families USA, a consumer advocacy group that has criticized current Medicare policy as inadequate. When approached by The Times during the preparation of the article, Families USA suggested Mrs. Fruhling and Dr. Bild as interviewees without disclosing that they had appeared in the video. Had that been known, The Times would have chosen others to comment for the article or would have made clear the two interviewees' connection to the advocacy group.

Now I much appreciate the Times' coming clean on this, but isn't the editors' note missing the mark? The problem isn't that Mrs. Fruhling and Dr. Bild had appeared in some video. The problem is that the reporter (1) had gotten his interviewees from an advocacy group that was very likely to refer him to people who were critical of the current policy -- a likely source of bias even if they hadn't appeared in a video for that group -- and (2) had only quoted people who took that view (not just Fruhling and Bild but others as well). I didn't find a single senior quoted in the whole story who said that he appreciated the extra choices; and only one person ("an administrator at the Center for Medicare and Medicaid Services") was quoted in support of the program.

Now maybe this is because in fact seniors are overwhelmingly opposed to the policy, and the reporter had tried to find supporters of the policy -- for instance, by calling someone on the other side from Families USA and asking them for the names of some seniors -- but couldn't. Maybe. But given the story, and given the editors' note, does that seem particularly likely?

Thanks to Dov Fischer for the pointer.

Here's columnist and author Paul Craig Roberts (whose work I've also criticized in the past) writing in 2000:

[S]ome limited victories against quotas . . . show vestiges of a constitutional order that possibly could be revived. The Hopwood decision in Texas, for example, and California's Proposition 209 are unequivocal affirmations of equality before the law.

In 1995, he likewise wrote in the Washington Times (about the Adarand Constructors v. Pena case and the Missouri v. Jenkins case) that "Those who hoped that the conservative majority on the U.S. Supreme Court would use two egregious cases to cut the cancer of racial quotas out of our society and reclaim the power of the purse for elected representatives can only be disappointed at the rulings handed down Monday"; that seems to be at least in some measure an endorsement of such hopes for a Supreme Court rejection of race preferences. In 1996, he seemed to praise the Fifth Circuit's Hopwood decision, which rejected race preferences in university admissions: "For the first time since the hated racial quotas were foisted on an unsuspecting country by unconstitutional and extralegal means, a federal court has ruled that racial quotas in university admissions are unconstitutional. . . . Score one for Texas Law School professor Lino Graglia, who has long warned his colleagues against their unconstitutional practices. . . ." So far, so good — those who read the blog know that I strongly oppose race-based preference programs, so I'm surely not criticizing Mr. Roberts on that score.

Now, check out his recent column which condemns in harsh terms Brown v. Board of Ed., calling it "An Infamous Ruling":

Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values. . . .

But Brown . . . ushered in kritarchy — government by judges . . . .

Even worse, in place of good will and persuasion Brown substituted coercion as the basis for reform. May 17, 1954, is a day of infamy, because it is the day Marxism triumphed over liberalism in America. . . .

Although decided in the name of equality, Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake, in the end invading even freedom of conscience of the American people.

Brown's true legacy is rule by judges, the destruction of equality before the law, the replacement of persuasion with coercion, the end of freedom of conscience, and the rise of insatiable racial grievances. Osama bin Laden, no doubt, is celebrating.

I certainly acknowledge that Brown v. Board of Education is open to criticism, either on pragmatic or originalist grounds. (I don't want to get into the very interesting originalist debate on that here, but suffice it to say that there's a plausible argument that "equal protection of the laws" was originally understood as not applying to political rights, such as the vote, or to participation in government benefit programs, such as employment, contracting, education, and the like.)

But how can it be that courts' striking down "racial quotas and preferences" that favor nonwhites is good, while courts' striking down racial quotas and preferences — a mild term for what Jim Crow involved — that favor whites is somehow "infamous"? Yes, I can imagine some way of reconciling disapproval of Brown and approval of Hopwood, for instance on the theory that the courts should never have gone down the path of forcing nondiscrimination on government actors who opposed it, but that once they did, this principle should be applied evenhandedly. But read those columns and see if their substance and their tone can really bear that interpretation.

Oh, and as to Brown's "usher[ing] in inequality before the law with the racial quotas and preferences that followed in its wake," I understand the verb "usher in" to mean "To precede and introduce; inaugurate". Wasn't there just a tiny smidgen of "inequality before the law" based on race, and "racial quotas and preferences," even before Brown? Even if you think Brown was flawed in some ways, wouldn't it be more accurate to say that Brown helped substantially reduce inequality before the law and government-imposed racial quotas and preferences, though it regrettably did not eliminate them?

Finally, I leave it to the reader to evaluate the column's concluding line, which is that "Osama bin Laden, no doubt, is celebrating."

For Pamela Anderson.

On the other hand, Dahlia Lithwick has a fine whine in Slate that makes what seem to be some very good points about the agency formerly known as the Immigration and Naturalization Service.

The Salt Lake Tribune reports:

Since May 6, Hillcrest [High School] officials have suspended [student Cody] McCook twice and booted at least three other students for refusing to cover up or change out of T-shirts with the anti-smoking message, "Queers Kick Ash." . . .

School officials claim the shirt violates Hillcrest's dress code, which prohibits, among other things, clothing that is vulgar or sexually suggestive, or "items which bear advertising, promotions and likeness of tobacco." The pun "kick ash" was deemed unsuitable, as was the word "queer." Principal Linda Sandstrom says the label is still seen by some as a slur and could target students for harassment.

I think this policy is more defensible on a Bethel School District v. Fraser rationale, which is that the school can ban vulgarities such as "queer" if it's doing so because they're seen as slurs in at least some situations; the full scope of Fraser, though, is unclear, especially in a context such as this one, in which the word is clearly not being used as a slur. The school would, I suppose, argue that students should be taught to avoid the word altogether, and that other words such as "Jew" are distinguishable because they're used as slurs only in rare circumstances.

The prohibition on all likeness of tobacco, though, seems to me clearly unconstitutional, since it fits neither within the Fraser exception nor the Tinker v. Des Moines Independent School District doctrine that speech may be restricted if it's disruptive.

Thanks to Matt Rustler (Sheep Free Zone) for the pointer.

From U.S. News. I hope it's true, because that would make it even funnier:

It was the lead item on the government's daily threat matrix one day last April. Don Emilio Fulci described by an FBI tipster as a reclusive but evil millionaire, had formed a terrorist group that was planning chemical attacks against London and Washington, D.C. That day even FBI director Robert Mueller was briefed on the Fulci matter. But as the day went on without incident, a White House staffer had a brainstorm: He Googled Fulci. His findings: Fulci is the crime boss in the popular video game Headhunter. "Stand down," came the order from embarrassed national security types.

UPDATE: Maybe not so funny! Chris Lansdown suggests:

Your recent post just gave me an idea. If I were to form a terrorist group, I would make a point of changing my name to that of some video game terrorist, or some such. Whenever people will claim that I'm a terrorist, they'll be laughed off for confusing video games with reality.

Many people have commented on some pro-gun-control speakers' tendency to claim — explicitly or implicitly — that the "assault weapons" they seek to ban are machine guns (also known as fully automatic weapons, defined as guns that fire more than one round per trigger pull). That's not true, though it is a convenient way to turn the public against assault weapons. Civilians are already banned by federal law from possessing fully automatic weapons, except about 100,000 that are grandfathered in. All modern "assault weapons" bans prohibit mostly semi-automatic weapons — normal guns that fire one round per trigger pull.

One common way of spreading this misinformation is to use the term "spray," which conjures up images of the fully automatic weapon; consider, for instance, Jesse Jackson speaking about assault weapons at the so-called Million Mom March a few days ago: "These are not guns for the marksman . . . . These are guns for those who spray and kill en masse." (Thanks to Aeon Skoble for the pointer.)

Actually, assault weapons are generally not materially more adapted to "spray and kill en masse" than non-assault weapons. Either Jackson doesn't understand this similarity between assault weapons and other weapons, in which case he doesn't know what he's talking about — or he understands it, in which case it sounds like he's really trying to push towards a ban on a vast range of guns (since all semiautomatics and many non-semiautomatics are just as lethal as assault weapons) and is just pretending to be focusing on a small subset of especially nasty weapons.

But beyond these errors in public debate, I've just found something similar in an actual statute — Washington, D.C. code section 7-2501.01(10), which defines "machine gun" as:

"Machine gun" means any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot:

(A) Automatically, more than 1 shot by a single function of the trigger;

(B) Semiautomatically, more than 12 shots without manual reloading.

So already the law explicitly departs from the standard definition of machine gun, to include semiautomatic guns — again, guns that fire just one round per trigger pull — with a capacity of 13 rounds or more.

But beyond this, remember that for most semiautomatic handguns and rifles, the gun's capacity is a function not of the gun but of the magazine that the shooter inserts into the gun. Glock handguns, for instance, are generally sold with 10-round magazines, since 10 years ago federal law largely banned larger magazines (except for those that were manufactured before the law's effective date). But any such handgun can easily "shoot[]" "more than 12 shots without manual reloading" if you simply insert a larger magazine into the gun.

The bottom line, then, is that tens of millions of semiautomatic handguns and rifles — perhaps most such semiautomatic guns — will qualify as "machine guns" for purposes of this law. And that's so even if the gun came with a 6- or 10-round magazine, so long as the gun is capable of handling a larger magazine (something that guns normally do unless the designers take special steps to avoid this).

Now I can understand why some people might want to ban all guns, or even all guns that are capable of using large magazines; I would oppose such a proposal, but I can see the policy arguments in favor of it. But the standard arguments for banning machine guns or assault weapons have generally not been "Yes, we want to ban tens of millions of guns, including ordinary guns that ordinary home defenders or sportsmen routinely use." Rather, they are "Don't worry if you're a normal gun owner — we're only going after a few of the really nasty awful guns, and there's no slippery slope that will lead to you."

Laws like this one show that many would-be "machine gun" or "assault weapons" banners are indeed after perfectly ordinary guns of the sort that millions of ordinary gun owners have. And to the extent they use redefinition of normal English terms (yes, something that the law sometimes does, but that doesn't make it right), they are misleading and potentially deceptive both to the regulated parties and to voters who are hearing arguments that are based on these terms.

Reader Ross Durland offers this:

Most countries have concave regions in their borders, where a neighboring country "bulges in." For example, Canada bulges into the US up by the Great Lakes. If you wanted to fly from, say, Sault Ste. Marie, [MI], to Buffalo, NY, you could fly straight there going SE. That would only be about a 370 mile flight, but you'd have to pass over southern Ontario.

If you wanted to fly there while remaining in US airspace, you'd have to first go almost straight South to about Toledo, and then turn ENE to Buffalo, for a total distance of maybe 590 miles. That's about 1.6 times as far. Let's call that ratio the "concavity index." More generally, for any two points within a single country, the concavity index is the shortest distance that is entirely within the country's borders [counting bodies of water that are in between two points in a country as within the country's borders -EV], divided by the absolute minimum distance.

Now to the puzzle. What two points exhibit the highest concavity index in the world?

Points located in non-contiguous portions of one country don't count (e.g. Anchorage & Honolulu), although there is room to argue when that rule applies. Also, I think we can safely ignore changes in altitude when measuring distances. . . .

My apologies if my explanation isn't as clear as I'd like. I always have trouble describing this in words.

Here's the answer that my correspondent arrived at, and I independently reached as well:

(click here to reveal it.)

If you have a provably better answer — not just an "I guess," but a pointer to a map and a good approximation of the concavity index — please pass it along.

My former student Jared Gordon writes, apropos my post complaining about CNN's reporting of two polls:

In your recent blogs on poll reporting at CNN, you made the statement "Someone at CNN must understand this better than most readers do." Having worked on the TIME/CNN poll with Yankelovich, Inc. prior to law school (now the Harris Interactive TIME/CNN poll), I can confirm for you from personal experience that in fact several people on their political reporting staff are well-versed in polling statistics, in particular Keating Holland, the person who was then, and I believe still is, in charge of CNN's polling. In fact, Mr. Holland routinely ran much more complicated analyses than a simple determination of the margin of error.

Because of my previous experience with the very competent polling staff at CNN, I have been considerably distressed by CNN's recent reporting of public opinion polls, not because they are ignorant of the margin of error, but because they seem to be willfully ignoring the margin of error to create news. While a story that says "there's no measurable change in the electoral picture, based on the latest poll" doesn't generate much excitement, a story that cites a poll for who's currently winning the presidential race draws considerably more eyeballs. I worry that CNN has given up on reporting the true stories in their surveys, and have instead decided to create stories in their surveys that they wish were there for purposes of improving their ratings or pageviews.

I would also note that in addition to the margin of error reported in the CNN story you referenced, there are other, less detectable, errors that result from the methodology used to determine "likely voters." Every major poll has their own methodology for determining likely voters, and the methodology may even change from survey to survey, based on an attempt to conform to the percentage of the eligible voting population that the polling firm expects to vote in the next election. Thus, likely voter comparisons are not necessarily comparable from poll to poll, or even within a time series of surveys from the same poll. Other aspects of the way in which likely voters are chosen introduce other kinds of potential errors. These errors aren't reported largely because they aren't easily quantifiable errors.

Here's a cyber-field-trip to the church that sparked the Supreme Court case Boerne v. Flores, courtesy of a student of Eric Muller's (IsThatLegal?).

Apropos my criticism of CNN's poll reporting, here's a great item from Mickey Kaus (Slate), quoting a reader e-mail:

Rasmussen numbers [though this applies to any poll numbers] are going to change even if the underlying facts they are polling do not change. To illustrate this I created an excel file in which mimicked the polling of 500 people per day and repeated this for 100 days. During this 100 day period, the underlying "facts" did not change: 45% of people supported bush, 45% of people supported kerry and 10% were other or undecided. Let me emphasize: this never changed during the 100 days: I know this because it's how the excel file was programmed.

Despite the fact that there was no change in the actual situation, the polling results did change: one day Bush outpolled Kerry 50-40; on another day Kerry outpolled Bush 49-42; and on another day it was Kerry 50-44.

Rasmussen evens out these one day jumps by reporting three day moving averages. But those also move around, though not as much. Let's look at the 3-day averages for one five day period in my simulation:

Monday: Bush 48 Kerry 41

Tuesday: Bush 46 Kerry 43

Wednesday: Bush 45 Kerry 45

Thursday: Bush 43 Kerry 47

Friday: Bush 43 Kerry 47

That's what the margin of error (+/-4.5% for 500 respondents, +/-2.5% for 1500, which means that 19 times out of 20 the true numbers will be within the stated percentage of the reported numbers) reflects: You can expect the numbers to vary by quite a bit from poll to poll, even if the underlying reality doesn't change at all.

Many opponents of same-sex marriage have argued that denying same-sex couples the right to marry doesn't really burden the couples much: After all, the argument goes, the couples can get many of the benefits of marriage through private contracting, and the special benefits that they can't get (tax breaks, mandated employer-provided benefits, and so on) are benefits that the state may properly reserve to those relationships that the state finds most beneficial.

I'm not quite persuaded by this argument, chiefly because I think that same-sex marriages are beneficial -- maybe not precisely the same way that opposite-sex marriages are, but in a similar enough way that the two should be treated equally. But I do think the argument I mention above has at least some merit.

But now Virginia has enacted the following statute:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

This doesn't just block courts from recognizing out-of-state civil unions, or creating special in-state civil union status. It also bars purely private contracts, if they "purport[] to bestow the privileges or obligations of marriage." The phrase contract or other arrangement . . . purporting to bestow the privileges or obligations of marriage" is pretty vague, but presumably it would include, among other things, contracts to share property that will be acquired in the future, contracts obligating one party to support the other, wills that devise property to the partner, and so on -- all benefits and obligations that some states automatically confer on married couples.

This strikes me as quite wrong. I realize that the law sometimes refuses to recognize contracts that are sufficiently harmful, for instance contracts to commit crimes, contracts to restrain trade, selling oneself into slavery, and so on. But this should be the exception to the rule, and something that only happens when there's some serious likely social harm or harm to the contracting parties flowing from the agreement. What's the harm of two people of the same sex promising each other that they'll share property, or support each other?

The ability to make legally binding contracts is an important power that people have. It is the power to make binding commitments, and to rely on others' binding commitments. It is the power to plan for the future with confidence -- to defer short-term gratification today with the expectation that one will get benefits over the long term.

Contract law is premised on the recognition that this power is valuable both to the individual and to society (except in unusual cases) -- and on the recognition that it is generally best to let people decide for themselves the proper terms of the contracts (again, unless there are persuasive reasons to the contrary) rather than have the government second-guess the promises they make, or limit the promises' scope. I realize that the legal system has unfortunately eroded this principle a great deal in recent decades. But there's no reason to erode it still further in this situation.

Thanks to Ron Najman and David Kaufman for the pointer.