The Volokh Conspiracy

Qu Qlux Qaeda:

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:

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.

"ACLU prevails in fight to put God back into the classroom":

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.

Benedict Arnold's Electric Legacy: Since Howard Bashman is away from his computer today, I though I would note Judge John Roberts opinion in Consumers Energy Company v. FERC, which begins:

It was a close thing, but Benedict Arnold's bold plan to capture Canada for the Revolution fell short at the Battle of Quebec in early 1776. As a result, the Federal Energy Regulatory Commission must now decide when affiliates of Canadian utilities — utilities not subject to FERC jurisdiction — may sell power at market-based rates in the United States.

It almost makes a FERC case sound interesting! John Roberts has not been a federal judge for long, but he certainly seems to be well into the swing of things.
P.S. I am sure I speak for all of the Conspirators when I say we all hope Mrs. Bashman is okay.

Tag-Teaming Jeremy Rifkin:

Joel Schwartz and Iain Murray team up to deliver arch-luddite Jeremy Rifkin and the "precautionary principle" a one-two punch over at The Commons, a new group blog "promoting environmental quality and human dignity and prosperity through markets and property rights." Murray challenges Rifkin's claims that the precautionary principle is required to protect the Earth from dangerous technological developments, and notes that the E.U. has hardly been consistent in its application of the principle. Then Scwhartz takes Rifkin to task for his own hypocritical approach to the precautionary principle. He says the principle is necessary to prevent the use of technologies he doesn't like, but then turns a blind eye to precautionary concerns about technologies he likes, such as hydrogen energy.

Cool T-Shirts: Get your very own "Dhimmi? Not Anymore!" T-shirt, in Arabic, here. Other cool designs as well.

Sanctionable?

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.)

Objective journalism,

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.

Paul Craig Roberts on racial preferences:

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."

You've gotta love...

...when the very smart Ramesh Ponnuru and the very clever Jonah Goldberg feel obliged to, somewhat delicately, distance themselves from the very repulsive John "buggery, buggery, buggery" Derbyshire. As Goldberg skirts the edge of pointing out, apparently it's only consensual buggery that Derbyshire has a problem with.

Some Good News from Iraq: Not to minimize the accumulated impact of the stream of dreadful news from Iraq over the past few weeks, but a piece of good news appears today: the Iraqi soccer team has qualified for the 2004 Olympics. Good for them -- a step towards rejoining the World. I keep a list of things that, were I to fall asleep for 20 years or so, I'd hope to see when I awake; one of them is regularly scheduled soccer games between the Israelis and the Palestinians, and Kuwaitis, and Iraqis, and . . . In the current soccer world, Israel is placed into "Europe," while the Arab nations are in "Asia," so they don't routinely meet for things like World Cup qualifying. The world will be a much better place if/when they do.

The Daily Me: The June issue of Reason magazine has to go down as a landmark in publishing. My copy arrived in the mail yesterday; on the cover it says: "DAVID POST: They know where you are!" And there's an accompanying aerial photograph which shows a portion of my neighborhood in Washington DC, with my house circled in red! Pretty amazing -- they've done this, apparently, for all 40,000 subscribers. In the words of Editor Nick Gillespie, the issue "hints at a future of hyper-individualized publications that will be assembled for an audience of one: you." What Cass Sunstein a while back called (not approvingly) "The Daily Me." Some iinteresting articles inside, too, (including one by Declan McCullagh) on why The Daily Me might be a very good thing indeed.

Originalist Sacrifices: From both my travels around the country, and from the reactions in the blogosphere, it is evident to me that the Supreme Court's opinion in Lawrence v. Texas, has struck a nerve in some people, as has my defense of the decision on this blog, in The Cato Supreme Court Review as well in as my amicus brief for The Institute for Justice. This reaction is so impassioned that it cannot be explained solely by outrage at any alleged judicial "usurpation" of the democratic process. Obviously, for some folks, the driving emotional force is the alleged sanctioning of homosexual behavior, even if most of these persons do not long for the imprisonment of their gay neighbors and coworkers that the statute in Lawrence authorized. For reasons best known to themselves, sanctioning homosexuality really bothers them a lot, and nothing so abstract as the original meaning of the Constitution will be allowed to stand in the way. If they can find a theory, any theory, of originalism that justifies the legal suppression of homosexuality, then that is super. But if not, then their originalism will be bent into a pretzel, or abandoned altogether if need be, to get where they want to go. [Note to readers: If this description does not fit you, then you need not write to inform me. I know it does not fit everyone who disagrees with Lawrence v. Texas.] Abortion is also floating close to the surface as evidenced by Professor Bainbridge's recent post to which I respond here.

A commitment to a written Constitution, however, requires either that one put the law represented by the Constitution ahead of one's even deep-seated desires, or that one candidly reject the Constitution as so morally deficient as to lose its status as binding authority. What is improper is both to jettison the written Constitution AND to wrap oneself in its mantle.

The judicial "virtue" of fidelity to law is what Larry Solum has advocated for a long time (see here). Assuming that the written Constitution exceeds some threshold of justice, only when we demand judges who put the Constitution ahead of their policy or moral commitments can we hope to escape what he has called the "downward spiral" in which we are presently locked. But this requires that the Constitution have a meaning independent of that which either judges or legislatures give to it, which is provided by an originalism based on the public meaning of the words at the time they were enacted. Original meaning originalism is nothing fancier than the theory that the meaning of the Constitution must remain the same until it is properly changed and judges alone or in consort with the other branches are not empowered to change it because they are who it is supposed to bind.

In contrast, when one's method of interpretation is "realist" or flexible enough to get you everything you care deeply about, I can assure you that very same method is flexible enough to get your political opposite most all that he or she wants, in which case everything then turns on who gets appointed to the court. Under conditions of full-blown realism, no one can stand the possibility that his or her opponents get their hands on the levers of constitutional interpretation. No one can safely trust that one's legal realist political and moral opponents will put something called "the law" (which many realists mock as nonexistent,or as "formalism") or "the Constitution" (which realists say means whatever the courts say it means) ahead of their deepest commitments.

When legal realist interpretation reigns and your opponent's deepest commitments are in opposition to yours, a fight to the political death over judicial appointments results. The only way out of this death spiral is a commitment to "formalism," by which is meant a commitment to a legal meaning of text independent of one's own. Indeed one virtue of having a written text is that it provides something that can have a meaning independent of one's own, a meaning that can depoliticize the judiciary to a significant degree if judges have the virtue of putting that meaning ahead of their own moral or policy desires. (This again is Larry Solum's argument in The Aretaic Turn in Constitutional Theory.) Original meaning originalism is one such interpretive approach, though it is not without its weaknesses. (There may be others, but I have yet to be convinced that they are sufficiently independent of judges political or moral desires--but this is another story.)

If a commitment to formalism based on original meaning requires one to accept results with which one passionately disapproves--such as depriving legislatures of the power to criminalize homosexual sex in private, i.e. not in public places where even heterosexual "fornication" can be prohibited--what outcomes do I give up that I passionately prefer, outcomes that may well be welcomed by many of those who oppose Lawrence v. Texas? While there probably are more, let me confine myself to one.

I believe strongly in the separation of church and state. I believe strongly in a completely secular government, not only for my personal well being, but for the well being of others in society with me. I think a world in which governments endorse or aid religion is seriously inferior to one in which government has nothing whatsoever to say about religion. I do not want to live in a governmentally-reinforced "Christian nation," any more than I want to live in a Jewish or Muslim nation. And all this is pretty important to me. Can I find it in the Constitution understood according to its original meaning?

While the First Amendment does mandate the protection of the "free exercise of religion," I do not believe that the First Amendment mandates the separation of church and state much as I wish it did. The very words of the First Amendment belie this claim. It says that "Congress shall make no law respecting an establishment of religion." Unless I discovered evidence to the contrary--and I have done no independent originalst research on this issue--this merely commands that Congress not itself establish an official religion, nor interfere with state governments that do establish religion. Making "no law respecting" is a command for complete hands off on the subject of establishment, one way or the other.

At the federal level, the First Amendment is antiestablishmentarian. A law establishing a national religion is a law "respecting an establishment of religion" that Congress may not make. Vis-a-vis the states, the very same language is antidisestablishmentarian. (Bet you never thought you would see that word used in a blog!) Congress may make no law disestablishing state religions for such would be a law respecting the establishment of religion that Congress is prohibited from making. Not only is this the plain meaning of the Amendment, but so far as I know (and I could be wrong about this having done no original research) it also comports with all known evidence of original public meaning.

So under the original meaning of the original Constitution, states may establish religion if their constitutions so allow while Congress may not do so. What this power entails is complicated, and I shall not pursue it here (e.g., is putting "In God We Trust" on coins an "establishment"? I doubt it, but do not prejudge the issue.) It would seem that if a state can establish an official religion it can also aid and endorse one religion or religion in general, for example, by instituting a noncompulsory pledge of allegiance in its government schools that includes the words "under God"--another practice to which I strongly object as a libertarian.

Does the Privileges or Immunities Clause of the Fourteenth Amendment change this? In my view, because the free exercise of religion is a natural liberty right or "immunity," the only interference with this right that is justified under the police power of a state is when a law prevents this right from being exercised in such a manner as to violate the rights of others, an extreme historical example of which would be child sacrifice. While the original Constitution did not protect the right of free exercise from infringement by states, the Privileges or Immunities Clause of the Fourteenth Amendment changed this and does extend federal protection of this "immunity" of citizens.

In contrast, the Establishment Clause of the First Amendment describes neither a natural liberty right or "immunity," nor a positive individual right or "privilege" of citizens. It is simply a limitation on the power of Congress simpliciter. Therefore, the plain and original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment has no relevance to the state establishment of religion. State endorsements of religions are not unconstitutional (although I reserve judgment on the propriety of using a general tax to subsidize religion without any opt-out).

I am open to being convinced that I am wrong about this. Indeed, given my commitment to the separation of church and state, I would WELCOME being convinced that I am wrong. But I refuse to convince myself I am wrong just because I want to be. Nor would I abandon the Constitution over this issue. This is not, after all, a liberty issue. A religious establishment tells no one what they must do or must not do (unlike "blue laws," for instance, that do). To obtain the legally enforceable separation of church and state at the state level that I strongly desire would require a constitutional amendment. It cannot properly be made up by the courts, though courts have done exactly this by abandoning both the text and its original meaning.

I raise the issue of separation of church and state here because I want to offer a sacrifice to the Constitution akin to the sacrifice I am asking of others who want the states to be able to condemn homosexuality by criminalizing it.

I also pose the following challenge to those who favor state endorsement of religion at the state level: if you are willing to modify your commitment to the entire Constitution when parts of it get in your way--in order to reach, e.g., private homosexual conduct--can you offer a principled reason why I could not use your interpretive method to evade the original meaning of the Establishment Clause and the Privileges or Immunities Clause of the Fourteenth Amendment to effectuate a separation of church and state that conflicts with the original meaning of both?

Blame Canada!

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.

Michael Green reports that Alan Gewirth, Edward Carson Waller Distinguished Service Professor Emeritus of Philosophy at the University of Chicago, died on Sunday. Last spring the university hosted a conference on the occasion of Alan's 90th birthday-- and I was astonished to learn that this sharp, vigorous, energetic participant in workshops I attended could possibly be 90. I was also very surprised to realize that he had had intellectual careers other than the one I knew him for, neo-Kantian rights-based political and moral philosophy-- notably as a scholar of the medieval political theorist Marsilius (or Marsiglio) or Padua.

I didn't have nearly as much of a chance as Michael did to talk with Alan; but I enjoyed and learned much from the conversations we had. According to his biography:

He received both his B.A. (1934) and Ph.D. (1947) from Columbia University. He has been a faculty member at Chicago since 1947 and has held visiting appointments at Harvard, Michigan, Johns Hopkins, and UC Santa Barbara. His books include Self-Fulfillment, The Community of Rights, Reason and Morality, Human Rights: Essays on Justification and Applications, and Marsilius of Padua and Medieval Political Philosophy. He has published over 100 articles on moral and political philosophy, on the epistemology of Descartes, and other topics. He is a fellow of the American Academy of Arts and Sciences and a past president of the American Philosophical Association and the American Society for Political and Legal Philosophy. In recent years he has taught courses on philosophical foundations of human rights, and he is currently working on a book entitled Human Rights and Global Justice.

UPDATE: The University's obituary is here.

Abortion & the 14th Amendment:

On his blog and on Mirror of Justice, Stephen Bainbridge has turned from the issue of gay sex to that of abortion. Here is what he says:

It's not just about sex. Barnett's expansive theory of the 9th amendment is at least as radical as William O. Douglas' theory of penumbras in terms of its ability for judges to invent reasons to strike down laws. Hence, Barnett's theory apparently validates not just Lawrence but also Roe v. Wade. Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil.

Wow! Now this is a serious charge (and a serious rhetorical escalation), but does it hold up? To see, let us compare my approach to the Constitution on this score with his.

On my theory of the 14th Amendment in which all its limitatations on states are justiciable, IF a fetus is a "person" then laws permitting abortion violate the Due Process Clause, and if a fetus is also a "citizen" (and if the fetus is a person, then why isn't it also an American citizen too?), it also violates the Privileges or Immunities Clause. On this reasoning, state laws permitting abortion should be held unconstitutional, and under Section 5 of the 14th Amendment, Congress has the power to protect fetuses from murder if a state fails to do so.

While I do not consider a fetus to be a "person"--either theoretically or historically--Bainbridge does. Yet HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion--which he considers evil and murder--to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.

Now theirs IS a principled position, and the principle is one of fealty to democratic majoritarianism. But it certainly is a theory of the Constitution that protects what Professor Bainbridge thinks is evil, so long as a majority disagrees with him about abortion. This is not hypothetical. At the time of Roe, some states had legalized abortion, a result that HIS theory of the Constitution permits.

To avoid being misunderstood, let me be as clear as possible about the steps in this reasoning.

GIVEN that a constitutional theory of judicial conservatism based on a commitment to democratic majoritarianism entails that courts ought not overturn the results of a state legislative process.

IF the legislative process of a particular state results in legalizing abortion.

Does it not follow from this that:

THEREFORE a constitutional theory of judicial conservatism based on a commitment to democratic majoritarianism would, under this forseeable and realistic condition, "validate the murder of over 40 million innocent unborn children" and therefore "raise[] serious moral concerns, because it likely constitutes material cooperation with evil."

Does Professor Bainbridge's commitment to the democratic majoritarian reading of the Constitution trump his commitment to the individual right to life of the fetus? Or would it be "morally" preferable to adopt my view of the Constitution, including the justiciability of the 14th Amendment, and argue either historically or on the basis of evolved understanding that the fetus is a person?

This dilemma, along with the downward spiral over judicial nominations, is what comes of picking one's constitutional methodology mainly or solely to reach certain results in certain cases.

The Hero's Reward: A terrorist conspiracy to detonate a nuclear device in Manhattan in three hours is revealed. An hour later, an FBI team raids a terrorist hideout on the Upper East Side. No bomb is found, but references to the bomb plot are quickly discovered. The terrorists refuse to talk. The FBI team uses every known measure of physical coercion to change their minds, until one of them finally breaks down and reveals that the bomb is hidden in the basement of the Empire State building. With minutes to spare, the bomb is found, and millions of lives are spared. The FBI team's reward? Jail, of course!--at least according to Crooked Timber's John Quiggin. By contrast, I'd give them a ticker tape parade.

I actually might agree with Quiggin that torturers should turn themsevles in and be subject to legal proceedings. But a necessity defense should be allowed, and shouldn't necessarily be dependent on whether the "ticking time bomb" was defused because of the torture. Let's say, in the circumstances above, five FBI teams raided five suspected terrorist hideouts, and in good faith exerted physical pressure on the residents of all of them, but only one group of suspects actually knew where the bomb was. Let's even say some of the suspects were innocent. An apology, and compensation, might be due to the latter. But the idea that the physical coercion is so terrible that it should be punished with jail time even when the torturers were in good faith trying to save millions of lives from a ticking time bomb strikes me as one of those ideas only an academic could come up with. No reasonable jury would, or should, convict under such circumstances.

Another high school T-shirt case:

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.

Heh:

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.

My hope is that it would drive away contributors and supporters, too.

Rumsfeld and Civil Liberties This seems like a good time to remind readers that, according to Newsweek Donald Rumsfeld argued for stripping Americans suspected of aiding Al Qaeda of their rights and holding them indefinitely as "enemy combatants." If the man can't be trusted with the rights of Americans, would you trust him with the rights of Iraqis?

Friends and enemies:

Some time ago, I blogged about this odd piece in the Chronicle by Alan Wolfe, about the alleged influence of Carl Schmitt on contemporary Republican politics.

The letters have arrived. This week's Chronicle runs excellent responses from Peter Berkowitz and Louis Hunt (the former a colleague of some of my co-bloggers at GMU Law), a sharp short one from Mark Bauerlein, and one from Paul Gottfried about which I have no official comment. And then it runs a reply from Wolfe-- one that doesn't make him sound any more reasonable than the original article did.

Anyway, nothing new to add; just thought I'd link to the exchange, for those who remember the story and might be interested.

Prisoner Abuse:

I've been away (speaking engagements in the UK).

My reaction to the prisoner abuse scandal is that while abusing prisoners is, in general (I make exceptions for "ticking time bombs" and other imaginable scenarios where physical coercion could be the lesser of two evils) not excusable, it's utterly predictable, given human nature and the arbitrary power soldiers are given over their soldiers. A certain percentage of prison guards abuse prisoners, and a certain percentage of military personnel will abuse both prisoners and civilians more generally. The job of the commanding officers is to minimize such abuse through training, exhortations, and whatnot, but this nonsense that "our boys and girls would never do such things" is naive nonsense.

As a relevant aside, my father had a friend who told him that as a soldier in Europe in WWII, his unit had occasion to capture German prisoners. The story is third-hand, so the details are a bit vague to me, but basically the CO told some of the soldiers to take the prisoners to the POW camp, and be back in fifteen minutes. Problem was, the POW camp was a two-hour roundtrip. The soldiers understood that they were under implicit orders to kill the POWs.

War brings out the worst in people, as does power, as Lord Acton informed us with his dictum that "power corrupts and absolute power corrupts absolutely." I do get the sense that there has been mismanagement and lack of discipline in American ranks, but I am quite dubious that even a well-trained, well-disciplined, well-managed American army would never abuse its prisoners, though the frequency and severity could be lower.

As another relevant aside, one of the primary arguments the Israeli left made in the 80s, before widespread violence broke out, in favor of ending Israel's control of the West Bank and Gaza is the inevitable corruption and abuse that has attended the "occupation," against official policy and often, indeed, endangering Israel's security (e.g., soldiers accepting bribes in return for smuggling privileges).

In short, the era of digital cameras has brought out into the open the sorts of abuses that attend wars and occupations, even ones engaged in by the "good guys." The neoconservative fantasy of pristine American soldiers being welcomed with open arms as they spread democracy and human rights is just that. (I once considered myself a neocon back in the 80s, but at some point I asked myself how a government so incompetent in almost all other endeavors can be trusted with the task of spreading liberal democracy around the world.)

I haven't blogged much about Iraq, mainly because I'm no expert, but I did support the war, to remove Saddam and provide a lesson to others in the Arab world what becomes of leaders who defy the U.S., try to acquire WMDs, etc. My preference was to extricate the U.S. as much and as quickly as possible once the main goal of toppling Saddam was established. I was hopeful that those who suggested that the U.S. could establish democracy there were correct, but thought it likely wiser to simply divide the country in three, ensuring mainly that (1) the oil revenues were in the hands of a friendly government; and (2) the U.S. had bases from which it could project force if needed to Iran and Saudi Arabia. Perhaps it's not too late to establish some more limited, and realistic, goals; or perhaps the democracy-builders will be proven right in the end. I certainly hope so.

Guns and misdefinitions, item 1:

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.

Guns and misdefinitions, item 2:

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.

"Rumsfeld Has Risen to Rank With Reno."

That's my new alliterative motto designed to annoy some of my Republican friends. The day before Abu Ghraib broke, I wrote:

And yet, compared with the adamant refusal of Bush and his cabinet officials to take any responsibility at all for anything having to do with 9/11 or the Iraq war, Clinton's substance-free brand of apology is beginning to look better and better. Even an acknowledgement that "mistakes were made"--a notorious passive-voice, bureaucratic quasi-evasion of responsibility--would be music to our ears just about now.

Presidents and their subordinates basically have three options in these situations: They can accept responsibility by resigning or firing those more directly responsible; they can apologize in a way that prevents them from having to incur any penalty; or they can refuse to apologize at all. Clinton took the second option; Bush has taken the third.[...]I'm one of those cranks who still nurses a grudge against Janet Reno for the deaths at Waco, and for its aftermath. I can still elevate my blood pressure just by calling to mind her statement--"I made the decisions; I'm accountable; the buck stops with me"--and the accompanying adulation she received from the media. Because, you see, she didn't take responsibility. She performed a three-step dance. First, she insisted that everything that happened was the Branch Davidians's fault. Second, she said that no one under her ought to be fired or otherwise held accountable, because the responsibility was hers. Then she did nothing. She didn't resign. She didn't offer a resignation. She didn't so much as apologize. She mouthed the word "responsibility" in order to deflect accountability from her subordinates and allow it to land ... nowhere in particular. And she was treated as a hero for having said the word "accountable." The siege of the Branch Davidian compound of course began before she took office; but she inherited somebody else's mess and turned it into a disaster. It seems to me that one cannot take responsibility for having forced a confrontation and contributing to 80 deaths without that "responsibility" having some consequence. In the absence of such a consequence, the statement is a lie.

Rumsfeld has now, of course, taken responsibility for the events at Abu Ghraib... and not resigned. He has risen from level 3 (deny that anything wrong was ever committed) to level 2 (a consequence-free claim of responsibility, accountability that does not involve calling anyone to account).

But it seems to me that one cannot take responsibility for acts of torture under one's command without that "responsibility" having some consequence. In the absence of such a consequence, the statement is a lie. I hope that everyone who, like me, spent years complaining about Reno's consequence-free pseudo-responsibility will notice that Rumsfeld has now joined her company.

[An aside about group-blogging. This is my third post on this topic in two days. Solo bloggers can and sometimes do "flood the zone" with a lot more posts than that in a shorter time period; and it can be an effective blogging style. It feels... impolite to do so on a group blog-- impolite to my co-bloggers and to the blog's readers, and especially so when I strongly suspect that some of my co-bloggers disagree with me. But I can't promise that I'm going to shut up about it in the immeidate future. So: remember that the Conspiracy is configured to allow readers to exclude particular co-Conspirators, kind of like a killfile on Usenet. If you want to guarantee that you won't read any of my stuff when you come here, the link is http://volokh.com/?exclude=jacob.]

New geography puzzle:

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.

More on CNN and polls:

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.

The church in Boerne v. Flores:

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?).

What to do in Iraq? Parapundit.com, the insightful polymath Randall Parker, cites a friend as offering the following recipe:

"I'd partition the country into three areas, Kurd, Sunni, Shia. I'd draw those lines in the middle of nowhere and put my troops there so the troops would be out of the cities. I'd then take the strongest group in each area and say "its yours, but don't dare mess with our guard lines". Leave the country formally a single republic and give them each representation on a council to talk to each other about things they will have in common (assuming they do). Then tell each of them that they are personally responsible for the safety of the aid organizations and reconstruction, and expend lots of propaganda broadcast time interviewing their leader, their chief of police/militia, and their local ministers of health, education etc. on what their plans are and how they invite foreigners to work on their projects. Let them direct the projects (behind the scenes, insist on some proportion of schools, roads, etc) but not handle the budget (but pay them ample salaries and perks, so their graft is tolerable and formally legal). Any project not successfully kept safe by the militia (not a US soldier in sight) is irrevocably cancelled along with the salaries of the administration. Let them figure out how to keep the hotheads from spoiling the gravy train. Divvy up oil revenues from a national corporation proportional to population, distributed at as low a level (heck, per family checks) as possible. Form a small national army and train it with the occupying troops, out in the middle of nowhere, in desegregated regiments. Build nice barracks facilities they won't want to dismantle, and dismantle the old ones in cities. After a year or two, as projects wind up, reduce the border US forces to observer levels and invite the UN in to share the familiar peacekeeping role. Arrange national elections on a federation style constitution. Invite the neighbors to the party (who in the meantime, you have been as constructive with as possible). Let the resulting governement kick the peacekeepers out, which they will, and see what unfolds. Don't pretend you ever had a chance of controlling it anyway."

Those ideas may well be imperfect, but at least they pay heed to the notion of positive incentives. Right now the Iraqis have very little ownership in what goes on, whether literally, metaphorically, or otherwise. This is starting to change, but there is much we could do to accelerate this process along.

Jefferson's Cipher:

As some of you know, I'm something of a Jefferson freak, and my eye was caught by this wonderful software implementation of one of Jefferson's coolest inventions: a "wheel cipher." It was a remarkable little device for encrypting messages — far and away the most powerful encryption device available in its time (and for over 100 years thereafter, in fact). The software implementation requires java — but if you can run it, it's worth playing around with; you can send an encrypted message via email, which gives you a nice sense of how the thing actually worked. Plus, it's a neat way to waste some time at the office . . .

The Stubbornness of Facts: Judicial Conservatives and the Ninth Amendment: Although it does not provide easy answers to all present cases and controversies, one of the nice things about original meaning originalism is that is seeks to discover a genuine fact about the world: the public meaning of the words used at the time of their enactment. In contrast, original intent originalism seeks either to construct some sort of "collective intention" or to answer a counterfactual question: what would the founders have thought about a particular matter? Neither of these are matters of genuine historical fact. The advantage of discovering facts is that if there is indeed a truth of the matter—-though sometimes there won't be—what evidence exists is likely to line up pretty uniformly in favor of this truth.

Because the Ninth Amendment seems so clearly to authorize the protection of unenumerated rights, judicial conservatives (not to be confused with all political conservatives) who profess a fealty towards originalism have long sought to dismiss it. But facts, as they say, are stubborn things.

Russell Caplan's Thesis

The first contender was Russell Caplan's 1983 article, "The History and Meaning of the Ninth Amendment," in the Virginia Law Review. Caplan argued that the rights retained by the people was a reference to state law common law and constitutional rights. All it provided was that these state law rights were not repealed by the Constitution. It provided no enforceable constraint on federal power so long as a federal law did not purport to repeal any state law right.

Caplan's article was long, had lots of footnotes and quotes, and was published in a premier law review. His argument was touted at the time by judicial conservatives as the definitive reason for ignoring the Ninth Amendment--so much so that, when he published his The Tempting of America, Robert Bork switched his infamous "inkblot" metaphor from the Ninth Amendment to the Privileges or Immunities Clause of the Fourteenth and cited Caplan's state law interpretation instead. But facts are stubborn things.

The problem with Caplan's argument was both a lack of evidence in its favor and evidence that contradicted it. Suffice it to say that no state ratification convention proposed any amendment voicing this precise concern, and neither was it mentioned in any of the discussion surrounding adoption of the Ninth Amendment. What evidence he cited expressed concerns about the effect of the Constitution on state law rights, but the Ninth Amendment itself addresses the effect of enumerating rights in the Bill of Rights, not the effect of enacting the Constitution. And no one ever voiced concern that the enumeration in the Constitution of certain rights would repeal state law rights. No one. After its demolition by scholars, Caplan's thesis has been abandoned and largely forgotten by judicial conservatives.

Thomas McAffee's Thesis

The next contender was Professor Thomas McAffee's 1990 article, "The Original Meaning of the Ninth Amendment," in the Columbia Law Review. McAffee affirmed that Caplan's thesis was completely wrong. McAffee contended instead that the Ninth Amendment's sole purpose was to negate any argument that the Federal government had broader powers just because a particular right had been enumerated in the Bill of Rights.

McAffee's article was even longer than Caplan's, had even more footnotes and quotes, and was published in a premier law review. His argument was touted at the time by judicial conservatives as the definitive reason for ignoring the Ninth Amendment. But facts are stubborn things.

After McAffee published his piece, it was pointed out that, among its other weaknesses, James Madison had actually used the Ninth Amendment in his speech opposing the constitutionality of the national bank. In his speech, Madison was in no way responding to any argument that Congress had the power to enact the Bank Bill because of some enumerated right. In other words, the author of the Ninth Amendment used it in a constitutional argument outside the only context in which McAffee had so confidently claimed it applied. Since these criticisms of McAffee appeared, it has lost favor among judicial conservatives.

Kurt Lash's Thesis

The latest 'Great Judicial Conservative Hope' is Professor Kurt Lash, who has written a very interesting article that is forthcoming in the Texas Law Review. Kurt's article is longer than McAffee's, has gobs of footnotes and quotes, and will be published in a premier law review. True to form, Lash affirm's that McAffee's thesis was completely wrong. So was Caplan's. Kurt's article is already being touted by judicial conservatives on the blogosphere and elsewhere as the definitive reason for ignoring the Ninth Amendment.

As it has not yet been published, I have not commented publicly on his article because I do not know its final form. Like McAffee, Kurt's evaluation of the historical evidence is very complex and requires an enormous amount of work to parse and evaluate. Some of his analysis of particular items of evidence represents an advance, although he makes some errors regarding my work that, because they do not directly refute his thesis, I am sure he will revise if I ever get around to writing him about them. But now he has gone public to mildly chastise me for failing to "acknowledge" his work-in-progress on the Ninth Amendment with this email to Larry Solum. So I believe I should say something about his thesis, which he summarizes as follows:

Historical evidence suggests that natural rights were retained to the people under the Ninth Amendment. But "retaining" that right meant that the people of each state were free to delegate power over the "retained" subject to their own state government if they saw fit to do so (as many did, for example, in regard to the "natural rights" of speech and religion). The Ninth, in other words, protected state autonomy over these matters from federal interference.

I have read his paper and am not persuaded. The most obvious problem with this thesis is that when the framers of the Bill of Rights wanted to refer to "states" they did so, as they did in the Tenth Amendment right next door to the Ninth. Kurt's thesis is remarkably close to the now discredited "states rights" interpretation of the Second Amendment's "right of the people to keep and bear arms." [I evaluate the new and improved replacement for this theory of the Second Amendment here. The successive nature of the arguments that the Ninth Amendment is functionless in service of democratic majoritarianism really does remind me of the gun control advocates' successive theories about why the Second Amendment is similarly irrelevant.]

Kurt greatly overstates the novelty of his evidence. For example, he claims, "Until recently, Madison's speech before the House of Representatives was not recognized as involving the Ninth at all, and remains missing from compilations of original sources regarding the Ninth Amendment." At the end of a lengthy footnote, however, he acknowledges that I began discussing this speech in my Introduction to my 1993 anthology, The Rights Retained by the People: The History and Meaning of the Ninth Amendment, Volume 2, although he fails to note that I also reproduced Madison's speech in its entirety as an appendix to this volume.

Kurt claims that "The precursors to the Ninth Amendment—the proposals submitted by the state ratification conventions upon which Madison based his draft—are missing or mislabeled throughout contemporary scholarship." In the footnote following this claim, however, he acknowledges that I provide all these precursors (so they were not missing) and do not label them (so they were not mislabeled).

Kurt dismisses the significance of the crucial portion of a draft bill of rights by House Select Committee member Roger Sherman, which 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.

Although this is not literally a precursor of the Ninth Amendment, as Kurt correctly observes, this sentence is significant nevertheless because it is important evidence that the original public meaning of "rights which are retained by [the people]" are "natural rights." Contrary to what he asserts, this draft is significant not because it refers to "rights" (of which there are many kinds) or to "retained rights" (which some asserted belonged to states), but because, like the Ninth Amendment, it refers to rights retained by the people, and it tells us that this phrase is a reference to natural rights, a type of right that belongs only to individuals.

The centerpiece of Kurt's new evidence is indeed new and interesting: the record of the debates in the Virginia Assembly concerning the wording proposed by Congress of what became the Ninth Amendment, which he is correct to claim has gone unexamined in the literature. However, because the substance of this debate was contained in a very much-discussed letter from Hardin Burnley to James Madison, his claim that "No work on the Ninth Amendment addresses the debate in the Virginia Assembly," is misleading, as is his claim that this "episode [has been] completely missed in Ninth Amendment scholarship."

Moreover, I think the debates he has uncovered support rather than undercut my previous work on the Ninth Amendment. I can only begin to explain why here. In brief, the fact that those in the Virginia convention, such as Edmund Randolph, were concerned that the enacted words of the Ninth Amendment differed substantively from the language proposed by the Virginia ratification convention that "each state in the Union shall retain every power, jurisdiction and right" supports a conclusion that this change in wording was meaningful. In other words, that these Virginians were upset about this change in wording strongly suggests that the public meaning of the Ninth Amendment was NOT that of state rights, whatever the subjective intention of its authors--and Virginians eventually adopted it anyway. If the language meant exactly the same thing to a member of the public, there would have been no outrage at the change in language. Madison's much-discussed response to the substance of Randolph's concerns, which did not concede their correctness, is discussed in detail in Restoring the Lost Constitution (at 250-51). As I explain there, Madison viewed protecting rights as a complimentary strategy to expressly limiting powers, and viewed both as distinct means to keep the federal government within its proper bounds.

Of course, the natural retained rights referred to in the Ninth Amendment were protected by the original Constitution only from federal infringement. Apart from a few prohibitions in Article I, sec 10, neither the Constitution nor the Bill of Rights protected these rights from infringement by states. In this sense, Kurt is perfectly right to claim that "the people" were free to delegate the power to regulate their rights to state governments. But the Fourteenth Amendment changed this by providing a federal constitutional protection against state infringements of these very same natural liberty rights, as well as additional privileges or "positive rights" created by the Bill of Rights such as the right to jury trial, that were not themselves natural rights.

Why Kurt disagrees with this is itself dependent on his view that the Ninth Amendment affirmatively protects only state laws from federal interference, including apparently from the affect of the Fourteenth Amendment's protection of the Privileges or Immunities of Citizens of the United States. Unpacking this claim would take even more space. Most importantly it would require examining the evidence concerning the original meaning of the Privileges or Immunities Clause I report in Restoring the Lost Constitution, which Kurt does not address at all in his article. Kurt is also insensitive to the relationship between natural retained liberty rights and delegated powers that I discuss at pp. 68-76.

I have only scratched the surface of the issues raised by this new, important, but still unpublished, article. To be clear, I do not believe I have "refuted" Kurt Lash's thesis in this blog. Still, I advise others to be skeptical about even a lengthy well-footnoted law review article published by a premier law review when it claims to see something in the evidence that all other scholars in the field have completely missed.

I welcome Kurt Lash to the rich and fascinating scholarly debate over the original meaning of the Ninth Amendment. I am quite certain that our understanding of its meaning will only be enhanced by the evidence he has uncovered. But his new-found judicial conservative fans should bear in mind that, when it comes to original meaning, facts are stubborn things.

NOTE: I leave today for St. Louis and then travel to DC for a conference. My ability to read and respond to replies will be limited until next week, but feel free to send them along.

Stephen Bainbridge Replies:

Stephen Bainbridge responds to my earlier post on The Founders on Democratic Majoritarianism with this revealing post:

I wonder what those founders would think of our modern Supreme Court as it happily goes about the business of, as Justice Scalia put it, "Day by day, case by case, ... designing a Constitution for a country I do not recognize." My guess is that many of them would agree with Judge Bork that the courts have taken sides in the "struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. . . .

As I read history, most of the founders were sensible and pragmatic men rather than visionary idealists. In their time, perhaps runaway democracy was the main problem. In our time, the main problem is undemocratic legislation by thin (often 5-4) majorities of the Supreme Court by which the justices impose their personal policy preferences on virtually every aspect of American life.

Channeling the framers is fun, in part because it is completely unfalsifiable. Surely, the Founders would be appalled by a popularly-elected Senate, a check on democratic majoritarianism and federal power they thought much more important than judicial nullification. In the absence of this check would they favor overriding the remaining ones? Who knows? It is beside the point for an original meaning originalist. I reproduced these quotes to demystify the founders as some sort of democratic majoritarians, and to explain how the checks on majority rule they wrote into the Constitution, the ones that judicial conservatives would wish away, got there in the first place. Far from a product of modern libertarian fantasy, they were the product of men who lived under majoritarian state governments and overcame great obstacles to alter their form of government. And the new system they devised was soon emulated at the state level as new state constitutions were swiftly adopted to eliminate state legislative supremacy.

And with extremely rare exceptions, courts are not imposing their preferences on individual citizens. They are stopping legislatures from imposing their preferences on individual citizens. When speaking of imposing one's preferences, there is a huge difference between a court mandating gay sex--which no court has--and stopping legislatures from putting adults in prison (where they may well be raped) for engaging in consensual with an adult of the same in the privacy of their own homes, which has now been held unconstitutional.

It is becoming increasingly evident that Professor Bainbridge is not an originalist, which of course puts him in excellent company in the academic community. (Still, this is useful to know when he comments on originalist arguments such as those I have offered in defense of Lawrence v. Texas.) His last post reveals his support for a living Constitution that "sensible and pragmatic" judges can change to give more power to Congress and state legislatures--to reflect changing times. By any fair and neutral meaning of the term, this is clearly "conservative judicial activism."

TOMORROW: I discuss Kurt Lash's new paper on the Ninth Amendment.

A good illustration of margins of error:

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.

What's wrong with private civil union contracts?

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.

The Founders on Democratic Majoritarianism:

The debate over judicial activism continues with Larry Solum's latest lengthy reply to Stephen Bainbridge, Majoritarianism, Formalism, and the Feasible Choice Set. What I find most interesting about Professor Bainbridge's latest reply to Larry is how candidly he admits his preference for a parliamentary system.

. . . I would prefer a parliamentary system in which democratic majorities acting through Congress and the President can trump judicial decisions. As imperfect as the political process is in a world of campaign finance abuses and gerrymandering, legislators are still more accountable than unelected judges.

The question is how far Professor Bainbridge and other judicial conservatives can get towards this goal using the Constitution as currently written, and the answer is: Not far enough to suit them. Those who favor a more democratic majoritarian form of government must advocate ignoring various provisions of the Constitution that stand in the way. This is something properly called judicial activism by the definition I offered earlier.

So what did the framer's think of democratic majoritarianism? I discuss this in Restoring the Lost Constitution in Chapter 2, but here are some of their views:

Madison in the Constitutional Convention:

Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

Madision in the Federalist #10:

In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure.

Madison in the Virginia ratification convention:

[O]n a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism.

Elbridge Gerry, Massachusetts, to the Constitutional Convention: "The evils we experience flow from the excess of democracy."

Roger Sherman, Connecticut, to the Constitutional Convention: The people "immediately should have as little to do as may be about the Government."

Edmond Randolph, Virginia, to the Constitutional Convention:

"[T]he general object was to provide a cure for the evils under which the U.S. laboured." And that "in tracing these evils to their origin every man had found it in the turbulence and follies of democracy."

"The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2d branch is to controul the democratic branch of the National Legislature."

Gouverneur Morris, Pennsylvania, to the Constitutional Convention:

Every man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty private property & personal safety.

Even those who remained more amenable to democracy, like George Mason of Virginia, "admitted that we had been too democratic" in forming state governments though he "was afraid that we should incautiously run into the opposite extreme."

One thing is certain: These men did not care for unchecked democracy, having experienced it first hand, and they wrote a constitution with multiple checks on majority will includng separation of powers, federalism, limited enumerated powers, express prohibitions on federal and state powers, express protections of rights,and co-equal judiciary with a "judicial power" that included judicial nullification of laws that violated these restrictions.

Trying to get a democratic majoritarian form of government from the original Constitution, as amended by the Fourteenth Amendment, requires that various provisions limiting the power of democratic majorities to enact their preferences into law (to paraphrase Robert Bork) must be redacted. And since the Roosevelt New Deal Court, the Supreme Court has done just that. If you must call anything "judicial activism," this is it.

Misleading CNN claim about polls:

CNN reports:

With nearly six months remaining before the November election, Bush led Kerry 48 percent to 47 percent in the survey -- a reversal of a poll taken last week, which found the Massachusetts senator with a 1-point edge, 49-48.

Uh, but as the story says two paragraphs later,

The poll, conducted Friday through Sunday, had a margin of error of plus or minus 4.5 percentage points, meaning the presidential race remains close.

The +/-4.5% margin of error doesn't just mean the race remains close -- it means that the 48%-47% pro-Bush result is not a "reversal" of the 49%-48% pro-Kerry result, but is no statistically significant change at all. Both results are dead heats; the seeming "reversal" could easily be the result of random variations in which respondents happened to be picked. A poll conducted on the very same day last week as the 49-48 Kerry poll could easily have reached a 48-47 Bush result.

Someone at CNN must understand this better than most readers do. Shouldn't it be part of CNN's responsibility not to mislead the public this way?

Speech as Conduct:

I've just finished a draft of Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones and put it here. I won't be circulating it to the law journals until mid-August, since many editorial boards don't consider articles over the summer, or only consider them slowly; so if people have some suggestions, I'd love to hear them (at volokh at law.ucla.edu). Warning: Many parts of this piece are pretty technical. Here's an abstract:

Speech, some argue, should sometimes lose its First Amendment protection because it's really just conduct. These arguments have been made for a wide range of speech: (1) racially and sexually offensive speech in workplaces, universities, and places of public accommodation; (2) speech that informs people how certain crimes can be committed; (3) speech that teaches children harmful ideas; (4) speech that lobbies against housing for the disabled; (5) speech that advocates crime; (6) doctors' speech recommending medicinal marijuana to their patients; (7) speech that urges political boycotts; and even (8) public porfanity.

This article will discuss several such "this speech is really conduct" theories. First, it responds to the argument that generally applicable laws, which apply to speech alongside other conduct, should be free from First Amendment scrutiny even when they cover speech because of its persuasive, informative, or offensive content. The article argue that such an argument is unsound, and inconsistent with many leading free speech cases. Restrictions that are content-based as applied should be treated the same way as restrictions that are content-based on their face.

Second, the article responds to the argument that various kinds of speech should be punishable because they are part of an illegal "course of conduct," "speech brigaded with action," or "speech act[s]" rather than pure speech; such arguments often quote Giboney v. Empire Storage & Ice Co. (1949). The article criticizes Giboney, and concludes that if such an "illegal course of conduct" doctrine should be recognized, it should be narrow indeed -- so narrow that it wouldn't apply to most of the cases where Giboney is cited.

Third, the article discusses, and to some extent critiques, Professor Kent Greenawalt's view that certain kinds of statements are "situation-altering utterances" and thus unprotected conduct. Finally, the article confronts the "uncharted zones" of free speech -- criminal agreements, criminal solicitation, much verbal aiding and abetting, professional speech, and the like -- and suggests that these zones are best dealt with by recognizing properly bounded First Amendment exceptions (as the Court has done with regard to libel, incitement, fighting words, and the like), and not by relabeling the speech as conduct.

And, yes, it's a long title, but I want people to have a sense of what the article covers when they see the title in the results of a WESTLAW or LEXIS query.

Prediction: A commentator on this post by Ted Barlow at Crooked Timber writes, in reference to my "tipping point" post below:

What remains amazing from Sullivan and the other hard-core rationalists at the Volokh Conspiracy (for example) is their inability to admit to their lack of predictive powers. It isnt that a gross miscalculation was made as to the feasibility of achieving peace, democracy, etc., merely that we employed the wrong people to do it.

As I said: I freely admit to my lack of predictive powers. I didn't think things would go this badly wrong. I'm just not making the admission "rascalnikov" is asking for: that the idea of bringing a government to Iraq that was more just, more democratic, and more peaceful than its predecessor, and while still being strong enough to keep the internal peace and thereby transforming the politics of the Middle East in intensely desirable ways (by getting U.S. troops out of Saudi Arabia; by showing a path to progress for Arab states that have otherwise faced a choice between fundamentalist repression and corrupt repression (or, sometimes, both at once); by showing that constitutional, non-theocratic, non-autocratic orders can take hold in Arab countries; by shifting the balance of power in the Arab world decisively away from Saudi Arabia and substantially away from Egypt and Syria; and by building the moral capital of the U.S. by demonstrating an active desire to enhance Arab and Muslim freedom) was necessarily misguided, doomed to failure, or even always very likely to fail, on its merits, regardless of the quality of execution.

Indeed, it seems to me that the Bush Administration had to do an impressive number of things wrong to bring things to their current impasse. High on the list has been a refusal to commit an adequate number of troops to postwar reconstruction. Also high on the list was the disbanding of the Iraqi army without pay. (I'm inclined to say that disbanding was the right idea, but that soldiers should have been offered substantial compensation in exchange for turning in their arms.) But then there's been mistake after mistake since-- the election issue has been handled very badly and with a real tin ear; Sistani has been badly handled; and now Abu Ghraib has done massive damage to American credibility (and for good reason-- I'm not saying that we only have a perception problem there, though we have that, too).

Now, that doesn't exculpate those of us who supported the war. The people who are on hand to implement a policy are a relevant consideration in calculating the policy's expected value. But rascalnikov seems to be saying that the ex ante expected value was negative regardless of competence of implementation; and I don't agree.

By the way, a number of people have e-mailed me over the past couple of weeks saying, "Why insist on firing Rumsfeld when responsibility rises all the way to Bush?" To which I answer: well, Presidential resignations are very rare and very disruptive in our system. The mechanisms are set up so that Presidents are replaced at the ballot box rather than by resignation. A resignation is sure not to happen; the only President who has ever resigned did so under immediate threat of impeachment. A resignation moreover wouldn't make things better; President Cheney isn't likely to suddenly clean things up in Iraq.

But firing, or extracting resignations from, cabinet officers does happen. (Eugene rightly points out that voluntary resginations to take responsibility for mistakes are rare. Firings are much less so; and a firing often takes the form of extracting a letter of resignation.) And if the Administration suddenly smartened up on Iraq policy-- which I must hope for, no matter how little I expect it-- firing Rumsfeld would provide a desirable mark of emphasis for the new strategy, giving credibility to what must now be at least a twofold acknowledgement of error (Abu Ghraib, lack of security and order in Iraq).

No, I don't think it's likely. But it's the best short-term option I see.

A World War II POW scandal:

Geitner Simmons reports on an interesting POW scandal during World War II. Though the abusers there were Nazi prisoners themselves rather than rogue American soldiers, the American commanders were rightly criticized for allowing this to happen. "When newspapers and magazines like Colliers picked up the story, it became a national scandal, eventually involving Eleanor Roosevelt, who pushed for a secret program of de-nazification and re-education, which was set up in 1944." Very interesting.

Thanks to Ralph Luker for the pointer.

Mark Kleiman responds about courts, Abu Ghraib, and Guantanamo cases:

For his view, see here. I continue to think that the Supreme Court will think, probably rightly, that getting civilian courts in detainee cases involved will do more harm than good. But Mark's arguments are definitely worth considering.

Taking Responsibility, the Answers So Far:

Last Friday, I blogged the following:

Taking responsibility:People have recently suggested that various officials (the Secretary of Defense, the head of the CIA, and others) should resign as a sign that they take responsibility for their policy errors, or for their failure to properly monitor their misbehaving underlings. I think that in general there's a good deal to be said for such acceptance of responsibility, though of course much will depend on the particular circumstances of each case.

But I'm wondering: How often has this sort of behavior happened in the recent past? Since, say, 1960, which Cabinet-level officials (or the Director of Central Intelligence, who's pretty high up there) resigned because (1) they admit that they have failed in some task, or (2) their subordinates (direct or indirect) have failed and the officials want to take responsibility for the subordinates' failure (and perhaps their own failure to monitor the subordinates)? I'm excluding (A) firings of such officials, and (B) resignations prompted by personal scandal, unpopular comments, or general unpopularity. I'm looking for resignations of the "My policies have proven to be wrong, and I'm resigning to take responsibility for them" variety.

Naturally, even if such resignations have been scarce in the past, it doesn't mean that they shouldn't happen now -- but their presence or absence may indicate whether the problem is unusual shamelessness on the part of these particular officials, or a broadly shared (even if harmful) aspect of our political culture. Also, if there are such prominent past cases, perhaps they can be used as examples that we should prod officials to emulate.

I then asked for examples.

So far, the answer seems to be that such "I take responsibility for my errors, or the errors that happened on my watch, and therefore step down" resignations are very rare in modern American political life. They are apparently more common in other countries, such as the U.K., Canada, and Japan -- but not in the U.S.

Some people suggested Cyrus Vance, but his resignation was basically a resignation in protest against the Carter Administration's decision to try a military rescue of hostages -- he was protesting the Administration's error, not confessing his own. Others suggested LBJ's decision not to stand for reelection, but as I understand this was basically prompted by the perception that he might be denied the nomination or at least have a bruising battle, perhaps coupled with a sense of weariness exacerbated by the insurgency in his own party. Unless I'm mistaken, it wasn't caused primarily by a judgment that he was wrong and a desire to publicly take responsibility for his errors.

Some suggested Les Aspin, who resigned as Secretary of Defense under Clinton after the Mogadishu fiasco. As best I can tell from press accounts, though, Aspin's resignation also wasn't primarily a confession of error. Here's what the New York Times, Dec. 16, 1993, had to say about it:

Defense Secretary Les Aspin resigned today. He had concluded that President Clinton had lost confidence in his leadership, senior Administration officials and associates of Mr. Aspin said. . . .

With a clash over the Pentagon budget looming and senior military officers reportedly unhappy about his stewardship, Mr. Aspin felt he had no choice but to quit, a close aide said. . . .

But the Clinton Administration took pains tonight to portray the departure as Mr. Aspin's own decision. The Defense Secretary made the announcement in a joint appearance with the President in the dignified setting of the Oval Office. . . .

"It's time for me to take a break and to undertake a new kind of work," said Mr. Aspin . . . .

[S]enior Administration officials . . . . said that for several weeks Mr. Clinton had steadily lost confidence in the leadership skills of his Defense Secretary because of the way he handled the major issues of his short tenure and his often confusing presentations on television and on Capitol Hill.

Senior Administration officials said that Mr. Clinton had decided to shake up his national security team and that Mr. Aspin became the odd man out both because of his public stumbles and because he lacked the close personal ties to Mr. Clinton that Secretary of State Warren Christopher and the President's national security adviser, Anthony Lake, both enjoy. . . .

The only such post-1960 U.S. "I take responsibility" resignations that I've heard about are:

Secretary of the Navy Lawrence Garrett III under the elder George Bush apparently resigned to take responsibility for the Tailhook incident. According to the New York Times, June 27, 1992,

Mr. Garrett, the Navy's senior official since 1989, submitted his resignation in a letter to President Bush, claiming "full responsibility" for the Navy's handling of the incident.

In a message sent to Navy and Marine Corps personnel worldwide late this afternoon, Mr. Garrett said, "The tradition of our Navy mandates that senior officials bear the ultimate responsibility for their command."

Mr. Garrett added, "I accepted full responsibility for the handling of the Tailhook incident and the leadership failure which allowed such misconduct to occur." . . .

There was some speculation "that Mr. Garrett was forced to resign by Defense Secretary Dick Cheney on Mr. Bush's orders"; but at least there's some reason to think that Garrett resigned to take responsibility.
Allen Dulles's resignation as Director of the CIA was, some say, triggered by his desire to accept responsibility for the Bay of Pigs failure. I haven't found anything that clearly confirms or denies this, though, and some sources suggest that he was forced to resign, rather than resigning voluntarily. If you have pointers to authoritative sources one way or the other, please pass them along.

So my tentative sense is: There is virtually no modern U.S. tradition of high government officials voluntarily resigning to accept responsibility for their errors or the errors of their subordinates. Perhaps there should be, and perhaps (for instance) Donald Rumsfeld should resign on these grounds. But that would be a departure from recent American political norms, not an implementation of those norms.

"May Day: A Day of Remembrance":

This May 1, Catallarchy linked to several posts remembering the victims of Communism -- go here to see them.

Don't study religion from shooting instructors,

or take shooting advice from religious leaders. I'm pleased that the Dalai Lama is not entirely anti-self-defense, but this suggestion suggests that he hasn't really thought hard about the subject. Clayton Cramer quotes an old Seattle Times piece (which is no longer available for free on the Web, it appears):

One girl wanted to know how to react to a shooter who takes aim at a classmate.

The Dalai Lama said acts of violence should be remembered, and then forgiveness should be extended to the perpetrators.

But if someone has a gun and is trying to kill you, he said, it would be reasonable to shoot back with your own gun. Not at the head, where a fatal wound might result. But at some other body part, such as a leg.

Unless I'm woefully mistaken, "shoot at the leg" is lousy advice, except perhaps to skilled and experienced combat marksmen.

First, when you use a gun in self-defense, you'll almost certainly be petrified, full of adrenaline, and shooting in combat for the first time in your life. Even if you're quite well-trained, I doubt that you'll be a very good marksman. That's why you should shoot at the torso, where you'll be more likely to hit.

Second, your goal should indeed not be to kill for its own sake, nor to wound for its own sake. It should be to stop the attacker from shooting (at you or at the person you're trying to defend). Even if you hit him, you're more likely to stop him if you hit him in the torso -- better yet, if you hit him several times in the torso -- than if you hit him in the leg.

Of course, one can imagine some moral systems under which the attacker's welfare isn't valued enough to bar all violent self-defense, but is valued enough to mandate such a carefully calibrated response. But given the virtual impossibility of actually achieving such careful calibration, it seems to me that such moral systems make little sense.

On the other hand, the Dalai Lama was quite correct that you usually shouldn't shoot at the man's head -- but again the right reason is simply that the head is a small target compared to the torso.

Ceuta and Melilla:

Several readers pointed out that there are still some Spanish enclaves in Morocco, including two substantial cities, Ceuta and Melilla. I knew that Spain ran the northern chunk of Morocco for a while, but I didn't know that it still had these enclaves.

I guess that makes even more interesting another trivia question, which is "Which countries are located on more than one continent?" (not counting embassies, military bases, and research outputs). The obvious answers are Russia, Turkey, and Egypt; the nonobvious ones are, it turns out, Spain and possibly France (if you do treat French Guiana as part of France). I couldn't figure out the official dividing line between South and North America; if it's the canal, then Panama would be included, but I suspect that it's the Panama / Colombia border.

Note, though, that this is not a valid answer to my Remnants of Empire puzzle because of rule #3, which excludes territories that are right across the sea from the governing country.

UPDATE: Amanda Butler points out that Kazakhstan might also be both in Europe and Asia, since part of it is apparently west of the Urals.

FURTHER UPDATE: Several people pointed out that French law treats not just Guyana but many other colonies, such as St. Pierre & Miquelon, Mayotte, New Caledonia, and others as parts of France. If you count them, and if you count islands as parts of adjacent continents, then France would also extend into North America, Africa, and conceivably Asia, depending how you count New Caledonia. Likewise, if Greenland is counted as being part of North America, and treated as part of Denmark and not just a colony (I'm not up on Danish law related to this), then Denmark would count as well. But I think the problem is most aesthetically pleasing if we limit continents to just the continental landmass.

Thou and You:

Reader Rachel Rosencrantz writes:

When I was working at the Renaissance Faire (http://www.renfaire.com/) before the faire opened we took a class on language (so we could sound appropriately Elizabethan). The whole thou and you [thing] came up . . . .

However, we were further instructed that even though our customers would properly be addressed as "you" we should use thee/thou with them because to the unknowledgeable faire goer thee/thou has a more "archaic" feel and it will work better, even though technically it would be incorrect.

Heh, I guess business is business. And a defense of "Your Honor, I only tried to kiss that Faire worker because she called me 'thou'" would probably (and rightly) fail . . . .

Sometimes a puzzle is just a puzzle:

A reader writes, apropos the "Remnants of Empire" puzzle:

I'm not sure what the point of this article is. Was it to pointedly make western nations look like world aggressors?

I thought rule #3 was quite interesting. It arbitrarily rules out all of the non-western nations that are or have occupied other countries. Also, there is one other country that is left off of your list -- Lebanon which is a de-facto vassal state of Syria. Taiwan doesn't yet fit the description, but quite possibly will within the decade.

Now if you tried to reverse your question and list all of the occurrances of countries that either allowed their former colonies to become free or have gone out of their way to liberate other groups of people, I think that you would get a much more interesting picture. I'd have to think about it, but I can't think off-hand of a single

non-western nation that answers that description.

The point of the post was to have fun with a cute geography puzzle. The point of rule #3 was to avoid interminable debates about Tibet, Northern Ireland, Wales, Quebec, Transylvania, and all sorts of other places that some people say are a true part of the whole country and others say are colonies or dependencies.

Some things just aren't about politics, folks.

Advice to Graduates:

I was one of the name callers in the UCLA law school graduation yesterday; as people came up to have their hoods put on them, I announced their names. The graduates (there were about 150 on my side, plus 150 on the other name caller's) gave me cards with their names as they came up, and I tried to get the names right. To help me, there were spaces on the cards were students could write phonetic representations of their names.

This led me to formulate these three suggestions for getting your name pronounced right:

1. If you have a moment — and you usually will, since there's a space between names as each graduate is being hooded — just whisper your name to the reader (assuming there's some possible ambiguity). It's much easier for the reader to simply repeat your name, especially when it's also written down, than to try to figure out the pronunciation from the card alone. If you're not sure whether you'll have the time, or whether this violates some unwritten rule, check with the administration beforehand. But if you're allowed to, then do it.

2. Do not, I repeat do not, use the phonetic codes like the ones the dictionaries use. Even many educated professors will not be able to figure out, quickly and under pressure, what the bar or the dots or the squiggle above some letter means. Spell it out using (unambiguous) English soundalikes — e.g., "mar-eye-a" if that's how your "Maria" is pronounced — or say "rhymes with . . ." or whatever else. Just don't start using special characters, unless you're graduating from the Linguistics Department.

3. If your name is pronounced the obvious way, leave well enough alone. "Bormon" is fine as it is; saying "Just like 'Mormon,' only with a 'B'" is probably going to be more confusing than helpful, when the reader has just a second or two to figure things out, and thus makes it more likely rather than less likely that he'll mispronounce things.

And in any case, congratulations!

Can this possibly be sound theology?

Rabbi Eric H. Yoffie, the President of the Union of American Hebrew Congregations, is quoted as having said this at a past so-called "Million Mom March":

Is the need for sensible gun-control a religious issue? You bet it is.

The indiscriminate distribution of guns is an offense against God and humanity.

Controlling guns is not only a political matter, it is a solemn religious obligation. Our gun-flooded society has turned weapons into idols, and the worship of idols must be recognized for what it is-blasphemy. And the only appropriate religious response to blasphemy is sustained moral outrage.

"Turned weapons into idols"? I don't know much about Jewish religious thinking, but this seems to me like a metaphor getting out of hand.

Also, I wonder whether people on the left who condemn the Religious Right for supposedly "trying to mix religion and politics," or "trying to force their religious opinions on others," would equally condemn the Rabbi on these grounds. I doubt it, and I think their reaction to the Rabbi is the correct one: The Rabbi is just as entitled to turn his religious views into law as secular anti-gun people are entitled to turn their secular views into law — and religious gun-rights defenders are just as entitled to turn their religious views about the propriety of self-defense into law as secular gun-rights defenders are with regard to their views.

The question should be whether the arguments make sense and are persuasive, and whether the proposed results are morally sound — which is to say, who is right as to the merits of the proposal. (And of course people, both religious Jews and otherwise, may find the Rabbi's views unpersuasive.) But religious people are as entitled to make religious arguments about the proposal as secular people are entitled to make secular arguments.

Thanks to Dan Gifford for the pointer.

UPDATE: Clayton Cramer makes a good point:

[W]here does Rabbi Yoffee get this "idol" image of guns? I would suggest that it is rather like the way that the "blood libel" about Jews remained popular for so long in European civilization: Yoffee probably doesn't know anyone who owns a gun. He probably doesn't even know anyone who knows anyone who owns a gun. The more isolated you get from a group, the easier it is to either imagine the worst of members of that group (the negative stereotype of blacks as sex-crazed criminals), or imagine the best of members of that group (all Native Americans are spiritual defenders of Mother Earth). A little contact goes a long ways to correcting these stereotypes.

I'm normally not wild about speculating about speakers' motivations, but this speculation seems to be by far the most plausible.

Extreme Makeover = Extreme Taxes?

TaxProf discusses the tax consequences of home makeover TV shows.

Mother's Day Weekend Movie:

My wife's and mine was Kill Bill vol. 2, which we much enjoyed -- and it definitely had a Mother's Day theme (no joking). I highly recommend it; both of us thought it was better than Kill Bill vol. 1 (which was good but not very good): Less gore (not that I mind gore, but in the first volume it got a bit repetitive), and more interesting plot and characters. We saw volume 1 on video Friday and then volume 2 in the theater Saturday; I think volume 2 wouldn't work very well if you haven't seen volume 1.

Oh, and I really liked the music.

Tipping point: Andrew Sullivan:

The one anti-war argument that, in retrospect, I did not take seriously enough was a simple one. It was that this war was noble and defensible but that this administration was simply too incompetent and arrogant to carry it out effectively. I dismissed this as facile Bush-bashing at the time. I was wrong. I sensed the hubris of this administration after the fall of Baghdad, but I didn't sense how they would grotesquely under-man the post-war occupation, bungle the maintenance of security, short-change an absolutely vital mission, dismiss constructive criticism, ignore even their allies (like the Brits), and fail to shift swiftly enough when events span out of control. This was never going to be an easy venture; and we shouldn't expect perfection. There were bound to be revolts and terrorist infractions. The job is immense; and many of us have rallied to the administration's defense in difficult times, aware of the immense difficulties involved. But to have allowed the situation to slide into where we now are, to have a military so poorly managed and under-staffed that what we have seen out of Abu Ghraib was either the result of a) chaos, b) policy or c) some awful combination of the two, is inexcusable. It is a betrayal of all those soldiers who have done amazing work, who are genuine heroes, of all those Iraqis who have risked their lives for our and their future, of ordinary Americans who trusted their president and defense secretary to get this right.

John Holbo:

Like some others I was beguiled for too long by meteorological contemplation of threatening storms. Somehow the existence of sophisticated arguments in favor of war in Iraq obscured quite obviously sufficient arguments against. Notably, ones about our President's capacities: never send an incompetent to do a competent's job.

Kagan and Kristol:

The Bush administration seems not to recognize how widespread, and how bipartisan, is the view that Iraq is already lost or on the verge of being lost. The administration therefore may not appreciate how close the whole nation is to tipping decisively against the war. In a sense, it doesn't matter whether this popular and elite perception of the situation in Iraq is too simplistic and too pessimistic. The perception, if it lingers, may destroy support for the war before events on the ground have a chance to prove it wrong. So Iraq could be lost if the Bush administration holds to the view that it can press ahead with its political and military strategy without any dramatic change of course, without taking bold and visible action to reverse the current downward trajectory....But if the administration does not take dramatic action now, it may be unable to avoid failure.

Fareed Zakaria:

Leave process aside: the results are plain. On almost every issue involving postwar Iraq—troop strength, international support, the credibility of exiles, de-Baathification, handling Ayatollah Ali Sistani—Washington's assumptions and policies have been wrong. By now most have been reversed, often too late to have much effect. This strange combination of arrogance and incompetence has not only destroyed the hopes for a new Iraq.

Ugh. I still believe things to be not-irreparable in Iraq. The stakes are very high, and the U.S. has got to get this right. But I didn't think they would ever go so far wrong.

I now suspect that at the end of the day Iraqis will be much better off but the U.S. will be noticeably worse off than if the war had not taken place. Iraq will end up as a more federal, more constitutional, more democratic state than exists in the Arab world so far. But, after the eventual Iraqi state has rearmed sufficiently to put down all the internal threats, it will also be more authoritarian, more militaristic, more theocratic, and more anti-American than it might have been. The U.S., however, will have sacrificed a great deal of its moral capital and credibility in the process-- moral capital and credibility that it needs in order to fight both the military and the social-transformation fronts of the war on terror.

Like the old font better?

The Conspiracy now displays in whatever font you have configured as the default font (using, for instance, Tools / Internet Options / Fonts in Internet Explorer). This also lets you make the font larger or smaller easily, via View / Text Size.

But if you like the old font better, no problem -- just use (and bookmark) http://volokh.com/?oldfont instead of just http://volokh.com.

Many thanks to the invaluable Chris Lansdown, the PowerBlogs man for giving us the code for that (just a few lines for the Tag section).

Whew! Looks like we got off blogger just in time! (Though Patrick Belton hasn't noticed yet.) The new blogger interface is pretty annoying, whereas this PowerBlogs thing is lovely.

Oxblog and Solum are now the only blogspot blogs I read regularly. "Bloggered" has become a synonym for "FUBAR." I assume that the blogger relaunch is meant to make things less buggy, but it rests on an immediately unappealing interface. Even when they finally get around to making things better they make things worse.

You'd think that if your company had the natural advantage that its name was the name of a genre, you'd want to protect the brand. You'd at least not want the most prominent practitioners of the genre to mock the brand, and you might want some of the most prominent practitioners of the genre to use the brand. But apparently not...

Larry Solum on Judicial Activism On his Legal Theory Blog, Larry Solum has a wonderful addition to his Legal Theory Lexicon entitled Strict Construction & Judicial Activism. Anyone interested in Constitutional Law should read it.

Larry has also been making some excellent points about the issues raised by Clayton Cramer and Stephen Bainbridge. The latest is Cramer Sense. Scroll down for others or click on the following links:

The Bainbridgean Argument for Judicial Nullification of the Constitution

Originalism & Liberty

All law students should bookmark and then regularly visit Legal Theory Blog. It makes great summer reading to keep your head in the game while you are whiling away the summer, say, working for a law firm or even studying for the bar. It helps you remember why you wanted to go to law school in the first place. In the immortal words of Commander Peter Quincy Taggart: Never Give Up! Never Surrender!

Rockin' Book Tour Resumes This Week: The Rockin' Book Tour for Restoring the Lost Constitution: The Presumption of Liberty is back by popular demand--well, it's back. This week I return to St. Louis for two appearances on Wednesday, May 12th.

University of Missouri, St. Louis - 2:00pm-3:15pm in the McDonnell Conference Room, Social Sciences Building Rm. 331, UMSL (8001 Natural Bridge Rd., St. Louis 63121). This talk is being sponsored by the Department of Economics and the Hayek Professorship of Economic History. It is free and open to the public.

Discussion Club of St. Louis - 8:00pm-9:00pm at the Junior League of St. Louis (10435 Clayton Road, St. Louis, Missouri 63131). Title: "Restoring the Lost Constitution: $5 for the talk alone; $25 with dinner included (served at 7:00pm; cash bar opens 6:30pm). (In case you need more details, unfortunately I do not have a phone number for this group, but I found this email address online: [[email protected]] I have not tried it myself, but it might still work.)

As always, identify yourself before or afterwards as a VC reader.

The last stops on the tour before the Fall will be in Los Angeles at noon on Tuesday June 1st, at the Omni Hotel, and in Santa Monica at noon on Wednesday, June 2nd at law offices of Alschuler Grossman Stein & Kahan. Mark your calenders, I will post details as the dates approach.

What I've been reading: The Shadow of the Wind by Carlos Ruiz Zafon. This Spanish novel has been a sensation on the Continent. The premise? Imagine a satanic figure going around and trying to buy up and destroy all the book copies by an obscure author. The rest of the book unpacks the mystery. Recommended to those who liked Eco's The Name of the Rose, or Calvino.

The Reformation, by Diarmaid MacCulloch. A superbly written history, both substantive and entertaining, likely to become the standard account. One of the best history books of any year.

Digital Photography Essentials, by Erica Sadun. Erica is a VC reader who sent me this book. It is an excellent and useful introduction to the topic, even I can understand it.

Soon to come is Vernor Vinge's A Deepness in the Sky. And Ed Morales, The Latin Beat is the best book I know on Latin music.

Sunday Song Lyric There are lots of songs written for or inspired by artists mothers. Some are celebrations of Moms and motherhood (as many should be), others are not. For today's song lyric I've selected Pink Floyd's "Mother." It's not the happiest song -- Pink is getting ready to erect his personal wall -- so don't take this as a commentary on Mother's Day. It is simply a fantastic song from a fantastic album ("The Wall").

Mother do you think they'll drop the bomb
Mother do you think they'll like the song
Mother do you think they'll try to break my balls
Ooooh aah, Mother should I build a wall
Mother should I run for president
Mother should I trust the government
Mother will they put me in the firing line
Ooooh aah, is it it just a waste of time
Hush now baby don't you cry
Mama's gonna make all of your
Nightmares come true
Mama's gonna put all of her fears into you
Mama's gonna keep you right here
Under her wing
she won't let you fly but she might let you sing
Mama will keep baby cosy and warm
Ooooh Babe Ooooh Babe Ooooh Babe
Of course Mama's gonna help build the wall

Mother do think she's good enough for me
Mother do think she's dangerous to me
Mother will she tear your little boy apart
Oooh aah, mother will she break my heart
Hush now baby, baby don't you cry
Mama's gonna check out all your girl friends for you
Mama won't let anyone dirty get through
Mama's gonna wait up till you come in
Mama will always find out where
You've been
Mamma's gonna keep baby healthy and clean
Ooooh Babe Ooooh Babe Ooooh Babe
You'll always be a baby to me
Mother, did it need to be so high.

Note: In the movie version of the song, the lyrics are slightly different.

Who bought the Picasso for $104 million? Read this article for some speculations.

If this post comes up OK, I'll try something bolder and longer soon. Eugene has picked excellent new software, but I'm a technological idiot beyond belief. I've also just set up my Gmail account, so I am feeling very able this morning. Gmail strikes me as a clear improvement over hotmail and the privacy issues don't bother me. I can always use my other address to send something truly confidential. Plus how secure are the other systems anyway?

Remnants of empire:

Once upon a time, European countries had lots of colonies and other depedencies throughout the world. Now they have relatively few, mostly small islands in the Caribbean Sea, Indian Ocean, and Pacific Ocean. More broadly, there are many fewer dependencies, and more independent countries, than before.

So here's the question: What places in the world are still

run by different countries for an indefinite time in the future (don't count Iraq, for instance), and not just as a pure military base or as research outpost such as an Antarctic zone (note that what constitutes a "foreign country" naturally requires somewhat subjective calls about what's a different country and what's part of the same country — Kaliningrad, for instance, is I think really, truly a part of Russia, as is Alaska for the U.S.),
on a continent or on island(s) that contain at least 5000 square kilometers of land, or about 2000 square miles (this gets rid of the pinpoint islands),
not contiguous (or straight across the sea — naturally, a subjective matter) with the country that runs them (so don't count Tibet and China, Western Sahara and Morocco, Northern Ireland and England, or Svalbard and Norway; this is one rough and imprecise way of judging whether the dependency should indeed been seen as a separate place rather than part of the same country)

If you want to get honorable mention, be the first to send the full list (or the closest that anyone gets to it) with the assurance that you didn't just look it up in (1) online reference sources, or (2) in this post. The answer is

(here)

(I say using the cool new hidden text feature).

UPDATE: When submitting answers, please pay close attention to the rules above — I got several messages, for instance, that mention Guantanamo or other bases (which violates rule 1) or that mention small islands or archipelagoes such as the Faeroes or Bermuda (which aren't large enough to fit within rule 2).

FURTHER UPDATE: Congratulations to reader Lewis Baston, who by my reckoning came closest to getting these right.

PowerBlogs:

We've just switched over to the new PowerBlogs software, which should be much more reliable for you than Blogger was (though there might of course be a few glitches over the next several days). PowerBlogs should also be more reliable and easier for us to use; there are a bunch of nifty new features (automatic table support, ease of linking to past posts, better searching, and more).

You should still be able to get to our blog by going to volokh.com, so please make sure that you bookmark that page, rather than the old http://volokh.com/index.htm. If for whatever reason volokh.com doesn't get you to the right place, go to http://volokh.com/index.shtml.

Should Conservatives Be Confused? I have received some thoughtful replies to my response to Professor Bainbridge's post, Should Conservatives Be Cheerful? including this Reply to Barnett by Professor Bainbridge, and his endorsement of Legislative Tyranny versus Judicial Tyranny by Owen at Southern Appeal. I believe that these post reflect some basic misunderstanding of the position (mine) with which they disagree.

(1) Owen writes:

Barnett's answer is remarkably unsatisfying, because it simply argues in favor of one tyranny over another. Under his standards, American society would effectively be ruled by the courts, who would be vested with the authority to judge which moral standards are legitimate and illegitimate, presumably using the old libertarian standard of the "harm principle."

This statement is mistaken on two counts. First, I do not advocate the "harm principle." Because we are entitled to "harm" others in many ways, this principle is simply too indefinite to distinguish rightful from wrongful conduct. Rather, in my book I argue, as did Thomas Cooley and Christopher Tiedeman, that the proper exercise of the police power of states extends only to protecting the equal rights of others. (NB: Their treatment of "morals" legislation differ.) If a prohibition cannot be justified as means to protect the rights that everyone has from violation then it is improper. Distinguishing rightful from wrongful conduct is the subject of specific doctrines developed in the private law subjects of property, contracts and torts. These doctrines are developed at the state level. There may be many difficulties with my proposal, and I address these difficulties elsewhere, but this and not the "harm principle" is what I favor. This confusion arises because I have written favorably of Justice Kennedy's opinion in Lawrence and he does invoke the harm principle. This is defensible in extreme (and rare) cases in which there is no harm to others whatsoever, in which case a law is problematic. But, as I said, as we have a right to cause all sorts of harms (or negative externalities) on others, the harm principle is insufficient.

Second, it is simply a mistake, but an all-too-common one, to equate legislative power over the citizenry with judicial power over legislatures. Therefore, it is a simple conceptual confusion to equate so-called legislative tyranny with judicial tyranny as if these two phenomena are a symmetrical pair. This error results from unrealistically equating a majority of a legislature with the people themselves, an error the framers of the constitution were careful to avoid. A principal object of the Constitution was to protect the people from legislative majorities, indeed from popular majorities, when motivated by passion or of interest adverse to the rights of their fellow citizens (paraphrasing Madison in Federalist 10). Judicial nullification was thought to be one check among others. The only concern expressed during framing and ratification debates about this check is that it would be too weak, as indeed it has been.

(2) Professor Bainbridge writes:

Contrary to what Barnett seems to believe, I doubt very much that the founders anticipated the sort of expansive claims of judicial supremacy that underlie recent decisions like Lawrence. Certainly, in the generations immediately after the founders the executive branch resisted expansive judicial supremacy.

He then quotes the following from Andrew Jackson:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

In my book I address the distinction between judicial "nullification," which the founders strongly endorsed, from judicial "supremacy"--i.e. judicial control over coordinate branches--which they said little if anything about. If you reread Jackson's statement carefully, you will see he is saying that the other branches should not blindly follow or defer to the judiciary with respect making assessments of the constitutionality of what they do. It does NOT say that the judiciary should blindly defer to the other two branches of government when the constitutionality of laws comes before them in a case or controversy. In other words, Jackson does not in any way advocate legislative supremacy, which many of today's judicial conservative favor in the name of democratic majoritarianism. On this issue, I strongly recommend David Mayer's excellent study, The Constitutional Thought of Thomas Jefferson.

(3) Finally, Professor Bainbridge writes:

Confining myself to the blogosphere, however, I would note that Barnett's arguments have not gone uncontested. Barnett asks, for example: "Is discovering and enforcing the original meaning of the Ninth Amendment activism?" Calblog, for one, thinks so: "We ought to respect it, but we can't come to the court to enforce the 9th amendment. Rightfully so, its interpretation belongs in the Congress and statehouses."

If anything is statement of conservative "judicial activism," this is. Calblog speculates about what the Ninth Amendment might have meant. I presented evidence about what it did mean (though other scholars disagree). Essentially the Ninth Amendment stands for the proposition that (as against the federal government) unenumerated liberties are entitled to the same protection as enumerated liberties. Recall for 2 years there was no First Amendment. Freedom of speech, press and assembly were all unenumerated rights. NO ONE contended that the enactment of the First Amendment changed anything with respect to the preenactment status of the rights it enumerated, e.g. claiming that the First Amendment would create legal protections that previously did not exist. Textually, from 1789-1791, any law violating the freedom of speech would have been improper under the Necessary and Proper Clause. Enumerating the right of freedom of speech neither enhanced its previous protection nor derogated the protection afforded other liberties not enumerated. As to the latter, so saith the Ninth Amendment.

If I am correct about this, and about the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, then it is judicial activism to say that unenumerated rights are entitled to no protection from legislative infringement because they are unenumerated. Calblog's assertion of this position is itself "activism" of the exact same species that I identified in my earlier post: conservative judicial activists discarding text that does not satisfy their conception of "the rule of law." As Calblog puts it: "The fear is I think is that if you want the P&I clause to incorporate already vague 9th amendment issues against the states . . . that's a real stretch. Hitchhiking on an already vague provision." Exactly! He does not like this provision because he thinks it is too "vague," so out it goes from the text. There is no difference between him and activists on the left who don't like, for example that Congress has only a limited power over "commerce . . . among the several states."

I am sure there will be more to say--in particular the alleged prevalence and enforcement of "antisodomy laws," but this post is already too long as it is. Those who are interested in the historical practice should look at this. And then there is this lengthy post by Clayton Cramer. Ahh. So much confusion, so little time.

Should Conservatives Be Uninformed? Professor Stephen Bainbridge, of whom I have a very high regard, posts the following curious entry on his blog entitled, Should Conservative Be Cheerful?

Insofar as one may draw inferences from his letter to the editor in today's WSJ ($), Robert Bork still thinks we're Slouching Towards Gomorrah, and he knows where to lay the blame:

The barbarians are no longer at the gate but inside and there is no end in sight to the damage they are inflicting. ... American courts, state and federal, having enlisted in the culture war on the side of the elites, are leading the procession to the moral anarchy of radical personal autonomy. ... As Justice Scalia put it in one dissent, "Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize."
Yep. This is why I find the sort of judicial activism advocated by libertarians like Randy Barnett no less threatening to democratic values than the sort advocated by left-liberals like Larry Tribe or Erwin Chemerinsky.

This comes after another post entitled Libertarian Judicial Activism, which says:

I find libertarian judicial activism of the sort Randy Barnett espouses no less offensive than the left-liberal judicial activism that we usually see.

Both posts invite the question: what exactly IS judicial activism? Unfortunately, apart from his reference to "democratic values," Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in his infamous confirmation testimony?

Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in the Tempting of America?

Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

Is it activism to construct a doctrine to define the wholly unenumerated "police power" of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

Surely Professor Bainbridge would not encourage conservatives to remain as uninformed of the meaning of all these crucial provisions as Robert Bork proved to be in the last book in which he opined on the Constitution. Or do they all just happen to have no discernable meaning, and no constitutional purpose, despite what they apparently say?

Judicial "activism," as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error. Without a conception of "activism," we just do not know exactly why Professor Bainbridge is offended. No doubt he has a sophisticated view of this issue or he would not be casting stones, but merely invoking "democratic values" will hardly suffice.

Either striking down ANY properly enacted statute is "activism" because it thwarts the "will" of a majority of legislators, in which case all judicial review is activism, notwithstanding the original meaning of "the Judial Power" in Article III. Or before hurling the charge of activism, we must first decide whether a statute violates the original meaning of the text. This is something that requires evidence and effort, and many use the epithet "activism" to avoid messy issues like determing the meaning of the Constitution. Far easier is it to accuse judges of practicing, or law professors of favoring, some sort of vague "process" impropriety called activism.

But for some modern judicial conservatives (not to be equated with all political conservatives), activism does mean something rather specific that they do not always articulate clearly: Activism is any deviation from the judicial philosophy of the Roosevelt New Deal judiciary, as enunciated in the first sentence of Footnote Four of U.S. v. Carolene Products that reads:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

In other words, enforce only some of the rights enumerated in the Bill of Rights--judicial conservatives often seem unsympathetic to enforcing the Fourth and Fifth Amendments--while generally ignoring the enumerated powers scheme (though judicial conservatives are divided on this). Above all, ignore the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

In short, today's judicial conservatives are simply unreconstructed Roosevelt New Deal jurisprudes. Indeed, it was the political Progressives who first coined the term "activism" to describe the Supreme Court that tried to enforce, however imperfectly and incompletely, the textual limits imposed on federal and state power by the written Constitution. I mean no offense by this comparison. But Roosevelt New Deal jurisprudence is hardly derived from a commitment to or evidence of original meaning. Nor is it a risk free approach to a Constitution that was put in writing not only to empower a federal government, but also to limit its powers, and a Fourteenth Amendment whose sole purpose was to limit previously undefined and broad state powers. At crunch time, judicial conservatives choose Roosevelt over Madison.

If one must use the epithet, the only sensible and neutral definition of "judicial activism" is when judges for whatever reason choose to ignore the written Constitution, whether to uphold or strike down legislation. Just as some modern progressives would have the courts ignore those passages of the Constitution that conflict with their conception of "justice," modern judicial concervatives would have courts ignore those passages of the Constitution that conflict with their conception of "the rule of law" because they are not specific enough for their tastes.

No meaning of any constitutional provision can be established in a blog, which is why I wrote Restoring the Lost Constitution: The Presumption of Liberty. If I am right about the original meaning of the clauses that I have examined, however, then my "activism" derives from the framers and ratifiers of the original Constitution--who as I show in my book were no fans of democratic majoritarianism--and those who drafted the Fourteenth Amendment, who were no fans of unlimited state power. Ultimately, what offends Professor Bainbridge is their words, not mine.

Taking responsibility: People have recently suggested that various officials (the Secretary of Defense, the head of the CIA, and others) should resign as a sign that they take responsibility for their policy errors, or for their failure to properly monitor their misbehaving underlings. I think that in general there's a good deal to be said for such acceptance of responsibility, though of course much will depend on the particular circumstances of each case.

     But I'm wondering: How often has this sort of behavior happened in the recent past? Since, say, 1960, which Cabinet-level officials (or the Director of Central Intelligence, who's pretty high up there) resigned because (1) they admit that they have failed in some task, or (2) their subordinates (direct or indirect) have failed and the officials want to take responsibility for the subordinates' failure (and perhaps their own failure to monitor the subordinates)? I'm excluding (A) firings of such officials, and (B) resignations prompted by personal scandal, unpopular comments, or general unpopularity. I'm looking for resignations of the "My policies have proven to be wrong, and I'm resigning to take responsibility for them" variety.

     Naturally, even if such resignations have been scarce in the past, it doesn't mean that they shouldn't happen now -- but their presence or absence may indicate whether the problem is unusual shamelessness on the part of these particular officials, or a broadly shared (even if harmful) aspect of our political culture. Also, if there are such prominent past cases, perhaps they can be used as examples that we should prod officials to emulate.

     If you have such examples, please e-mail me (at volokh at law.ucla.edu),

the person's name, office, and rough tenure of service,

the circumstances under which they resigned, and

most important, a pointer to some online source that documents this, or at least a quote from and a citation to some print source that documents this.

I hate to be so demanding and so lazy, but I'm afraid that I won't have much time to invest in research and corroboration; I'm hoping you folks will be kind enough to do it for me.

Oh, can I answer that, teacher? Can I? Can I? Reader Michael Greenspan passes along this item that David Frum at National Review Online wrote a few months ago. I'm not a conflicts of law scholar (that's the field that deals with these issues); I'm also not Andrew Sullivan, to whom the questions are addressed (and who dealt with them briefly here). But I know a bit about the subject, and thought I'd put my two cents in, and give the answer as a matter of current law.

Basic summary: These are interesting issues, but not that different from other issues that the legal system has had to deal with before, and not tremendously hard to resolve. The existence of the issues doesn't show that somehow Massachusetts law would interfere with the public policy of other states, nor does it show that somehow the resulting system would be unworkable. To the extent that it disserves anyone, it would disserve the Massachusetts same-sex couples -- but it wouldn't make them any worse off than they are now, without any marriage rights at all.

Here are Frum's questions, interspersed with my answers (which assume Andrew Sullivan's quite plausible premise, which is that other states and the federal government will have no constitutional obligation to respect Massachusetts law):

FEB. 27, 2004: EIGHT QUESTIONS FOR ANDREW SULLIVAN

On his website today, Andrew Sullivan proclaims his support for the concept that a same-sex marriage license issued in Massachusetts could be void in the other 49 states. That would be a welcome compromise, especially if the Massachusetts courts ever managed to persuade the voters of Massachusetts to approve their judicially imposed social experiment -- but let?s first test Andrew with some practical questions that follow from his idea.

1) A Massachusetts man buys a condo in Miami. He marries another Massachusetts man. The condo purchaser dies before he can write a new will. Who inherits the condo?

Unless I'm mistaken, the disposition of real estate is governed by the law of the state in which it's located (here, Florida), and in fact you may have to go to court in that state in order to get the property turned over. So the man's next-of-kin (children, parents, and the like) will inherit the condo, unless Florida courts decide to respect Massachusetts law on this, as a matter of common law rather than constitutional law (which they probably wouldn't, if the state has a Defense of Marriage Act-like law). The only question is whether the Massachusetts courts will somehow try to compensate the same-sex spouse by upping his share of the rest of the property, something that I doubt they will do; but in any case, that's up to Massachusetts courts to decide, and other states won't be affected.

The issue already comes up in other situations, for instance when the state in which an opposite-sex couple lives is a separate property state but the couple owns land in a community property state, or vice versa. There are, after all, other differences in the law surrounding marriage. So not a new problem, and not much of a problem at all. At most, it makes life less good for the Massachusetts same-sex couples than it would be if all states recognized their unions -- but I take it that this isn't Frum's objection.

(2) Two Massachusetts women marry. One of them becomes pregnant. The couple split up, and the woman who bore the child moves to Connecticut. The other woman sues for visitation rights. What should the Connecticut courts do?

Again, not a new problem. Under Connecticut law, the other woman would probably not be a parent of the child (again, unless Connecticut courts just decide, as a matter of common law, and trumpable by the state legislature). So the question is whether she might still get rights based on her having helped rear the child -- precisely the issue that arises when Mother marries Stepfather, Stepfather helps raise the child for years (without formally adopting the child), Mother and Stepfather divorce, and Stepfather asks for custody. Some states recognize the "psychological parent" doctrine, under which such parents can get custody based on their close relationship with the child, on the (plausible) theory that such custody is in the best interests of the child, and that the child's best interests should be the guide. Other states don't. In any event, courts would presumably apply the same rules for same-sex couples as they do for opposite-sex couples where the petitioner isn't an official parent.

Again, not a perfect situation for the same-sex couple, but no worse than if they couldn't get married at all. And it's not any worse for anyone else, or for the public policy of the state of Connecticut.

3) A Massachusetts man is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC's questions. May the SEC compel him to answer anyway?

Yes, absolutely. Under the Federal Rules of Evidence, the federal law of testimonial privileges governs in cases involving federal claims. Because of the federal Defense of Marriage Act, the federal law of testimonial privileges doesn't recognize same-sex marriages. Again, nothing terribly new here; federal courts routinely ignore state law of privileges, and apply the federal law of privileges, in cases involving federal claims.

4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?

No, because Texas law doesn't recognize the original marriage, so according to Texas law, the woman is unmarried. Again, no public policy of Texas is interfered with by Massachusetts' own decisions.

5) Two married Massachusetts men are vacationing in another state. One of them has a stroke. The hospital concludes he will never recover. Local law requires the hospital to ask the next of kin whether to continue treatment. Whom should it ask?

The state's courts might decide, especially if there's no state Defense of Marriage Act to the contrary, to respect Massachusetts law on this, on the theory that this better mirrors the parties' expectations, and that it's no skin off the state's nose (since the people were just vacationing there). But if the state legislature, or the state courts as a matter of state common law, want to insist on refusing to recognize any aspect of same-sex marriages, then they would be free to do so.

6) A Massachusetts man marries a foreign visitor to the United States. Should the foreigner be entitled to US residency?

No, because under the federal Defense of Marriage Act the federal government doesn't recognize same-sex marriages.

7) A Delaware family set up a trust for their son. The son moves to Massachusetts, marries a man, and then gets divorced. The trust is the son's only financial asset. Should the Massachusetts take the trust into account while dividing up the couple's possessions? If yes, what happens when the Delaware trustees refuse to comply?

I don't know enough about trusts law to give a firm answer. Still, two thoughts: (A) Under California community property law, as I understand it, the ex-husband generally wouldn't have a claim against the trust in any event, since the trust is the son's separate (pre-marriage) property; my guess is that though Massachusetts isn't a community property state, it would have a similar rule. (B) Otherwise, I suspect we'd have a similar situation to the one in item 1.

8) A Massachusetts woman married to another woman wins a lawsuit against a California corporation. She dies before she can collect her debt. Her closest blood relative demands that the corporation pay the relative, not the surviving spouse. Who should get the money?

Personal property, unlike real property, is generally governed by the law of the state where the owner died. Again, I'm not an expert on this, but I suspect that a money judgment will be treated as personal property, and would be owned by the woman's heirs (i.e., beneficiaries under intestate succession) or legatees (i.e., beneficiaries under a will) under Massachusetts law. In any case, I suspect that the law on this is pretty clear, because the matter already comes up in other cases, too. David Frum finishes:

If a couple gets married in Massachusetts and that marriage goes truly unrecognized by any entity outside the state -- well then the Massachusetts wedding ceremony is just a form of words, as meaningless as the illegal weddings now being performed in San Francisco. If you?re not married outside Massachusetts, then you are not really married inside Massachusetts either.

I ask these questions to drive home this point: Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.

Somehow I cannot imagine Andrew and those who think like him reconciling themselves to that outcome. I suspect that "letting the states decide" will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues. That is why it is necessary and proper to settle this issue on a national basis. And since the proponents of same-sex marriage have chosen 2004 as the year in which to bring matters to a head, they have no fair complaint if the opponents of same-sex marriage choose make their reply in that same year.

I don't think that's so. My predictions may not be entirely accurate, because as I said I am not an expert on the subject -- I'd welcome correction from any trusts, estates, or property lawyers who know this stuff better than I do.

Still I suspect that the bottom line would remain the same: These problems aren't tremendously novel, hard to solve, or likely to cause undue burdens on other states who disapprove of same-sex marriage. There may be some litigation over them, though a lot less litigation in states that have Defense of Marriage Acts, which set forth clear rules against recognizing out-of-state marriages. And it would be a tiny fraction of the overall level of family-law/wills-and-trusts-law-related litigation that we endure all the time (litigation spawned chiefly by the institution of opposite-sex divorce, though also by the even older institution of family members fighting).

Friday, May 14, 2004

Thursday, May 13, 2004

Wednesday, May 12, 2004

Tuesday, May 11, 2004

Monday, May 10, 2004

Sunday, May 9, 2004

Saturday, May 8, 2004

Friday, May 7, 2004