One often hears that no Amendment has ever amended the Bill of Rights. (Let's set aside whether various restraints on state power amend the Tenth Amendment, and let's set aside the many times that the Supreme Court has in effect amended the Bill of Rights.)

It turns out, though, that this probably isn't quite true. Two constitutional amendments have indeed likely amended two parts of the Fifth Amendment:

1. In Dred Scott v. Sandford (1857), the Supreme Court struck down a federal statute that declared many territories to be free, so that slaves who were taken there by their owners were liberated. The statute, the Court held, violated the Due Process Clause by wrongfully depriving owners of their property. It seems pretty clear that nationwide abolition would have likewise been a violation of the Due Process Clause under Dred Scott. The Thirteenth Amendment in effect modified the Fifth Amendment to make clear that slaveowners could indeed be deprived of their property in slaves. (Of course, one could argue that this didn't really amend the Bill of Rights as it should have been understood, but only as the Court misunderstood it -- but the backers of most proposed amendments of the Bill of Rights would say the same about their proposals.)

2. Even if depriving slaveowners of their property was constitutional, it might well have required the government to pay compensation. The Supreme Court had never passed on the matter, but as I understand it many people of that era assumed that compensation would be required, and some statutory emancipation schemes did indeed provide for compensation. Section 4 of the Fourteenth Amendment provides that "neither the United States nor any state shall assume or pay . . . any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void." This of course does more than reject a right to compensation -- it actually prohibits compensation even as a matter of voluntary legislative judgment. Still, it probably did in some measure alter the then-existing understanding of the Just Compensation Clause.

3. The same section of the Fourteenth Amendment also modifies the Free Speech Clause, by providing that "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." No, I'm just joking about that, though I've seen some constitutional theories that make about as much sense as that.

I don't want to suggest that these items are especially helpful to modern debates: I think the "it's inherently wrong to amend the Bill of Rights" arguments are unsound, but while these examples do in some small measure help show that sometimes the Bill of Rights need changing, I don't think they're really that relevant. But I just think they might be interesting historical tidbits for those who like this sort of thing.

An interesting Slate piece explains why.

(apropos this post from several days ago):

1. The same Seattle ordinance, I realized, prohibits discrimination based on "political ideology," defined as "any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group." So the hypotheticals I gave in this paragraph

Whether or not we agree with her, I think we must acknowledge that [the coercion of the printer] is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.

2. Several readers asked whether this might violate the printer's First Amendment rights not to be compelled to speak. That turns out to be a tough question. Under the First Amendment, publishers generally can't be required to include into their existing publications things that they don't want to include; for instance, some recent attempts to force newspapers to run coverage of same-sex weddings alongside coverage of other weddings would almost certainly violate the First Amendment. But it's not clear whether printers have a similar right not to be forced to print standalone materials, which won't interfere with the printer's other speech, and which probably won't be associated by readers with the printer.

The strongest argument on the printer's behalf, I think, would be based on the Abood v. Bd. of Ed. line of cases, which held that people may not be forced to contribute money to unions, state bars, and other such groups, when that money will be used for ideological advocacy. There are some exceptions, see, e.g., Southworth v. Bd. of Regents (student fees at public universities), and of course the government may force people to give money to the government itself (via taxes) even when that money will be used for ideological advocacy. But this is still the basic rule.

It seems to me that forcing people to actually do work on producing speech they disapprove of (not just when they're government employees, but when they're private citizens that the government is regulating) is at least as much of a First Amendment problem as forcing them to contribute money that helps produce speech they disapprove of. One possible distinction is that here the speech isn't overtly political; but an invitation to a same-sex marriage is these days (for better or worse) a political statement, often intended as such and often perceived as such.

The best arguments against the First Amendment claim, I think, would point to the PruneYard and Turner Broadcasting cases. PruneYard upheld a requirement that owners of large shopping centers allow speakers to use their property; Turner upheld a requirement that cable operators carry certain cable channels. But Turner, I think, was a special case because of the cable operator's monopoly power. And the law in PruneYard was less burdensome on the property owner — there the shopping center owner simply had to let speech onto his property; here the business owner would have to directly, and quite possibly personally, work in the actual production of speech that he disapproves of. Nonetheless, the compelled speech doctrine is messy enough that it's impossible to tell for sure how a court would (or even how it should, given the precedents) come out on this.

3. Finally, the Washington Constitution has been interpreted as providing religious objectors with a right to get exemptions from laws that burden their religious practices, unless the law is "narrowly tailored to a compelling interest." Thus, if the printer had a sincere religious objection to printing the invitations (and not just a philosophical objection unrelated to her religious beliefs, if any), then she might be entitled to a religious exemption, unless the court concludes that the law is indeed "narrowly tailored to a compelling interest." The track record of such exemption claims (mostly raised by landlords who claim a religious obligation not to rent to unmarried couples, and who thus want to be exempted from state laws that ban marital status discrimination in housing) has been mixed. Naturally, litigating to get such exemptions (even if you do have a sincere religious objection to the behavior that you're being required to engage in, which isn't clear as to this particular woman) is not easy and not cheap.

There may well be some significant details omitted here — it'll be interesting to see if this gets some more press investigation — but based on what I've seen so far, seems pretty bad.

UPDATE: I've posted a PDF of the teacher's federal court Complaint for your reading pleasure. Thanks to reader Dale Betterton for passing it along.

FURTHER UPDATE: The school's response is posted here. If the response is accurate (and authentic), then the matter is naturally quite different than it was first reported to be.

An interesting New York Times piece:

Early on weekday mornings, as Lesley-Anne Jones implores her three sons to button their shirts and knot their ties and tie their dress shoes, they ask why they can't attend her school. If Ms. Jones wanted to be factual about it, she could say that the family lives just outside the boundary for Public School 158 in the East New York section of Brooklyn, where she teaches fifth grade. Instead, she tells them the deeper truth. "I'm your mother, and I know what's good for you," she explains. "And the public school won't be."

Then she drives the children to a nearby private school, the Trey Whitfield School. Every month, she and her husband send the school a check for $900, the equivalent of almost two weeks' take-home pay from her job. They make the sacrifice because Trey Whitfield offers their children a demonstrably safer and better education than what is available at either P.S. 158 or their local school, Public School 149

There is nothing effete about the private education at the Whitfield School. Its campus consists of three cinder-block barracks tucked behind a Baptist church. The curriculum eschews the fashionable pedagogies of whole language and constructivist math. From pre-kindergarten to eighth grade, every pupil wears a uniform. And not a single child in a student body of 470 is white. . . .

Read the whole thing.

Mark Lemley, now of Stanford, has an excellent and readable new article on intellectual property; I just read it and highly recommend it. Here's the abstract:

The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post -- that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn't just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do.

In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.

The whole article should be available for free here or, if that doesn't work, here.

Matt Yglesias makes a point that I'd been meaning to make:

Just a word on Eugene Volokh's ongoing dispute re: Brown v. Board of Education with Paul Craig Roberts. Regarding the subject, Roberts invokes some classic tropes of "judicial activism":

Thurgood Marshall was one of them when, in the climax of the NAACP's campaign to end segregation by judicial flat, he stepped up to the Supreme Court's podium at 3:15 P.M. on December 9, 1952. It was strange that the great moral issue of the day was being debated in the Supreme Court instead of across First Street in the U.S. Congress or in state legislatures.

Now normally the point of this sort of complaining is that judicial action runs contrary to majoritarian democracy. Given the reality of the Jim Crow South, however, majoritarian democracy could hardly have been said to be in play. We're talking a time before the Voting Rights Act when African-Americans couldn't participate in the political process and when many poor whites were also disenfranchised. . . .

Keep Trying discusses the decline of the blogroll (thanks to InstaPundit for the link), and a commenter writes:

I think it has quite a bit to do with the relative lack of tools to deal with blogrolls. You have Blogrolling, which requires your page to call out to separate server and has a decidedly clunky interface; you also have Movable Type which has no interface for managing blogrolls whatsoever. Blogger, AFAIK doesn't have any kind of integrated blogrolling either.

The notable exception to this being WordPress, which does have an exceptionally easy-to-use link management system. I suspect with the recent flap over MT3.0's licensing we'll see a lot of people moving over to WordPress and using its blogrolling system.

That and if you're going to run Blogads, you either have to run a three-column design (which is often iffy design-wise), or accept that your blogroll will have to be pushed down the page.

That makes perfect sense to me -- the Web has shown us that small differences in convenience can translate into big differences in the degree to which something is used. (The classic example is the clickable link vs. the link that you have to copy and paste.) I'm pleased to report, though, that PowerBlogs has a very nice blogroll maintenance feature.

I've mentioned below (and in many past posts) that legalizing or constitutionalizing same-sex marriages might indeed eventually lead to the same for polygamous marriages -- the slippery slope argument is plausible, though of course far from certain.

I suspect, though, that this won't in fact happen. The gay rights movement has succeeded, both legally and in many situations politically, because of a confluence of reasons. Homosexuals are only about 2-3% of the population; but they also have many more nonhomosexual friends, family members, and colleagues. They have the natural political sympathy of much of the liberal movement, that tends to take a broadly egalitarian and sexually libertarian view.

Homosexuals are generally not very socially insular, at least by choice; while there are some mostly homosexual organizations and social circles, homosexuals tend to work, play, and socialize with heterosexuals. This means that, once there's enough tolerance for homosexuality that homosexuals are willing to identify themselves, many people -- even many conservatives -- find that quite a few of the people they like are homosexual. And this has been especially so in elite circles that have a disproportional impact on law, policy, culture, and even public opinion.

The chief sources of polygamy in America, as I understand it, are likely to be Muslim immigrants and some Mormon sects. (These wouldn't be the only sources, but I suspect they'd be the main ones.) These are relatively socially insular. Few people outside the group are likely to have close friends who are polygamists.

What's more, these groups don't have a natural political home in the Left, because they tend to be highly socially conservative in many ways (setting aside polygamy itself, of course), and because they tend to be devoutly religious. I'm not saying that many people on the Left will deliberately refuse to endorse polygamy because they don't like the politics and religions of polygamists. But I doubt that many of the Left would be eager to go to bat politically for people with whom they have so little in common. And people on the Right aren't likely to back these groups, either, simply because most people on the Right are morally averse to polygamy.

Finally, it doesn't seem likely that polygamy will attract many ordinary people who are better integrated socially, and who do have natural allies on the Left or the Right. I suspect that few American women, for instance, would be that inclined to enter into polygynous (one man, many women) marriages. I suspect that even fewer American men would be inclined to enter into polyandrous (one woman, many men) marriages. I suspect that many American men who might want multiple sexual partners wouldn't be that inclined to actually marry, and in some measure have to support, multiple wives. (Men of course might marry women who are at the same income level as they are, but I suspect that those are the very women who would least want to enter into polygynous relationships.)

One can imagine some scenarios in which culturally well-integrated Americans might seek polygamy -- for instance, a rich man marrying many poor women (perhaps especially women from foreign countries, including ones where polygyny is not uncommon), or the occasional many-men many-women marriage. But I doubt that many of these will happen. And so polygamy will still be a preference of a few culturally and politically isolated religious groups; and neither judges (who on such issues are, I think, quite influenced by their social perspectives and perspectives of the people around them) nor legislators are going to be that likely to push for legalizing or constitutionalizing polygamous marriage.

Now all this might change. I suspect that in 1965, many people doubted that the homosexual rights movement would ever get off the ground. Perhaps I'm missing some other political force that would be able to successfully push -- both in court and in legislatures -- for allowing polygamous marriages. (For instance, perhaps there'll be some massive influx of immigration of religious Muslims who are polygamous or at least culturally open to polygamy, though if the influx is huge enough, then that might lead to a legalization of polygamy whether or not same-sex marriages are legalized.)

But it still seems to me that, as a practical matter, even if same-sex marriage is legalized, we're unlikely to in fact slip down to allowing polygamy.

it becomes harder to condemn the slippery slope argument as patently unsound. Dahlia Lithwick does make some apt criticisms of some "today, gay marriage, tomorrow . . ." arguments; and, as blog readers know, I tentatively support same-sex marriage and suspect that it probably will not lead even to a recognition of polygamous marriages (though I don't have the confidence in this that Dahlia does). But some of her arguments strike me as not entirely persuasive. Consider this:

[B]eyond just the policy differences between [same-sex marriage and polygamous marriage], there is also a legal bulwark between Justice Kennedy's reasoning in Lawrence v. Texas (and the Massachusetts decision in Goodridge v. Department of Public Health, which borrowed heavily from the reasoning of Lawrence) and the invasion of the polygamists: The right to sexual privacy Kennedy finds in the line of cases starting with Griswold v. Connecticut, the Connecticut birth-control case from 1965, is an intimate right, between two consenting partners. The court calls these "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." The desire of a group of seven people to marry simply does not intuitively fit into that binary sphere of intimacy.

To begin with, I think there's something conclusory about characterizing "intimacy" as an inherently "binary sphere." We're familiar with lots of nonsexual but very deep intimacy that isn't binary — consider the intimacy of relationships within a biological family of three, four, or even seven. It's true that we've traditionally understood marital intimacy, a particular subset of intimacy, as intimacy between two people. But we've also traditionally understood it as intimacy between one man and one woman. If we reject the "binary [opposite-sex] sphere of intimacy" model of marriage, despite its "intuitive[]" appeal to many people (and even more people not long ago), then it's quite plausible that many voters will be led to also reject the "binary" part.

But, one might ask, doesn't Griswold stress the binary nature of the relationship? Well, Griswold stresses lots of things:

1. Griswold deeply relies on the rights of a married couple — read the opinion and see for yourself how intricately tied it is to marriage. Yet a mere seven years later, in Eisenstadt v. Baird, the Court relied on Griswold to hold that unmarried couples have a right to use contraceptives.

2. The three-Justice concurrence (Goldberg, Warren, and Brennan) in Griswold also said that "it should be said of the Court's holding today that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman [an earlier case in which Harlan eloquently argued for a right of married couples to use contraceptives,] "Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

   Presumably Justice Harlan continued to hold this view, which means that four of the seven Justices who voted to strike down the law believed that the case was no precedent for a broader right to sexual autonomy, or specifically a right to engage in homosexual conduct. And yet the Court in Lawrence v. Texas used Griswold as "the most pertinent beginning point" for its decision to strike down laws banning homosexual conduct.

So the Court has been willing to depart from the very core of Griswold's argument (the limitation to marriage) and from the express assurances by the concurrence that the decision in no way affects homosexuality. Why should we have any confidence that the Court — or lower courts or other influential bodies — will feel limited by Griswold's supposed stress on the inherent "binar[iness]" of "intimacy," something that is much less expressly dwelt on by the Griswold opinions? (To the extent the opinions suggest anything about the binariness of intimacy, that comes from their focus on the married couple — a focus that the Court has long abandoned, see Eisenstadt.)

The changes in sexual attitudes -- and in the law surrounding sex -- over the last 40 years are one long slippery slope. Some may think it's a slope to a good result, others to a bad result. But we have seen growing legalization and social normalization of contraception, premarital sex, abortion, and homosexuality, and a growing constitutionalization of such changes, so that communities where a majority still opposes those changes are nonetheless required to accept them. The legalization or constitutionalization of same-sex marriages would be yet another step.

It's conceivable, of course, that there is simply a temporal relationship here and not a causal one -- perhaps the first changes didn't help cause the subsequent ones, in which case we should worry less about the legalization or constitutionalization of same-sex marriage helping cause other things. It's also conceivable (perhaps even likely) that there are powerful political reasons why things will stop short of legalizing polygamous marriages.

But given this past history, the slippery slope arguments related to same-sex marriage aren't that easy to dismiss. And they're especially hard to dismiss by an appeal to the supposed inherent limits of Griswold, limits away from which we have already dramatically slipped.

(formerly of the Wall Street Journal editorial pages) urges conservatives to surrender the same-sex marriage battle.

John Rosenberg argues against the "Untouchable Constitution" view.

Ron Bailey of Reason criticizes Paul Ehrlich's latest predictions of environmental doom. Thanks to Dan Gifford for the pointer.

Kerry is asked "what is your position on Bush's fight to ban gay marriages?" His response, in relevant part:

I believe that the president of the United States should not use the Constitution of the United States for election purposes during an election year. It's a document that we haven't touched, certainly with respect to the Bill of Rights, for years, and I don't think it should be used for the purpose of driving a political wedge through America. . . .

What, though, does the Bill of Rights have to do with it? Kerry's view is that the Bill of Rights (including the Fourteenth Amendment, which technically isn't part of the Bill but might be fairly lumped in with it for some purposes) doesn't protect a right to same-sex marriage. He thinks that states should have a right to adopt it, and apparently he thinks that states ought to adopt civil unions for same-sex couples, but he doesn't think the Bill of Rights commands it.

But then how would amending the Constitution to ban same-sex marriage be "touch[ing] . . . the Bill of Rights"? It would indeed interfere with the rights of states, and it would bar them from providing extra rights to people beyond what the Bill of Rights commands. But it just isn't lessening or modifying Bill of Rights protections — unless Kerry really does think that the Bill of Rights mandates the recognition of same-sex marriages.

I realize that Kerry was speaking off the cuff here. But this is a pretty significant substantive point. Kerry apparently wanted to make a constitutional ban on same-sex marriages seem momentous and pregnant with threat to our Bill of Rights protections. (I take it that's the chief argument against "touch[ing] . . . the Bill of Rights" — if you lessen some Bill of Rights protections, then you're making it easier for others to lessen still other such protections.) The trouble is that his claim was inaccurate, and if it impressed people rhetorically, it did so by misleading them.

Again, I'll cut Kerry some slack; he was doubtless tired, harried by the pace of the campaign, and when people speak off-the-cuff they inevitably make some errors. But this was indeed a substantive error — an error that might or might not have been just a slip — and it seems worth noting.

UPDATE: A couple of readers asked: Might Kerry have meant that he thinks the Bill of Rights secures a right to same-sex civil unions, and the Federal Marriage Amendment that Bush backs would repeal such a right?

Well, if that were Kerry's view — "I think that the Constitution secures a right to same-sex civil unions, and courts should require all states to recognize such unions" — that would, I think, be very big news. But I'm pretty sure that it isn't his view, given what he says in his remarks:

And I think that's the way you respect — (applause) — that's the way you respect both traditional values, but you can allow civil unions, which protects the rights of people in America not to be discriminated against. And I think you can balance that. And I think it's appropriate to. But I do think that it ought to be left to the states. There's no showing whatsoever yet that the states don't have the ability to be able to manage this one-by-one individually, and we have always, throughout history, left the issue of marriage to the states. That's what I think we should do.

FURTHER UPDATE: A couple of readers suggested that maybe Kerry was referring to the Tenth Amendment — a ban on same-sex marriage would trench on the reserved powers of states, and thus "touch" the Bill of Rights. I rather doubt that Kerry was trying to make this point (partly because I doubt that he believes the Constitution protects states' rights much).

But if he was, then his statement was misleading for another reason: The 26th Amendment, ratified in 1971, reduced states' Tenth Amendment-secured powers by restricting states' ability to impose voting age qualifications; the 24th Amendment, ratified in 1964, likewise reduced such powers by restricting states' ability to impose poll taxes for federal races. More broadly, lots of the Amendments that Kerry likewise endorses — for instance, the 13th (slavery), 14th (equal protection, due process, and more), 15th (no race discrimination in voting), 19th (no sex discrimination in voting), and likely some others, too — would have "touched the Bill of Rights."

So the Bill of Rights was touched, in ways that Kerry would endorse, on many occasions, including two within the lifetime of most voters. Thus, if "for years" is understood as "for very many years" (the way I think it's likely to be understood, and the only way that works within Kerry's argument), then even the rather politically far-fetched Tenth Amendment interpretation of Kerry's statement proves to be misleading.

I've gotten a chance to look more closely at today's Kerryism of the Day in Slate, and I'm just flabbergasted. Here's what Kerry said:

I believe that the president of the United States should not use the Constitution of the United States for election purposes during an election year. It's a document that we haven't touched, certainly with respect to the Bill of Rights, in years, and I don't think it should be used for the purpose of driving a political wedge through America. I think it's wrong. Now, that said, I personally have taken the position I believe that marriage is between a man and a woman. That's my position, and I think that's the way you respect both traditional values. But you can allow civil unions, which protects the rights of people in America not to be discriminated against. And I think you can balance that, and I think it's appropriate to. But I do think that it ought to be left to the states.

Here's Slate's version, "translated into plain English," according to the item:

I believe that the president should not use the Constitution for election purposes. It's a document that we haven't touched in years, and I don't think it should be used for the purpose of driving a political wedge through America. I think it's wrong.

Now I'm certainly not wild about the way Kerry put things (though, as I always say, one has to make allowances for oral presentation, which will rarely be as polished as the written). But Slate tried to fix the problems chiefly by completely deleting a key part of Kerry's point.

Kerry isn't just trying to say that he's against a constitutional ban on gay marriages. He's also trying to say (somewhat inartfully, I acknowledge) what he's for -- for marriage being opposite-sex only, but for leaving the matter to the states, and for providing for civil unions at the state level. These are important parts of his point, both as a matter of rhetoric (say what you support and not just what you oppose) and as a matter of substance (make clear to listeners that you oppose a constitutional amendment but still share the majority's preference for recognizing only male-female marriages).

Again, these aren't just "pointless embellishments," or "ornate phrase[s]" instead of which "a normal person would have substituted" what Slate suggests. And to the extent that they are caveats, they are politically necessary caveats. Removing them isn't "translat[ing] into plain English" -- it's changing the substance and tone of what Kerry is saying.

As I've said before, I don't find this quibbling about people's spoken words to be terribly helpful, given the weaknesses that nearly all of us have in our oral presentations. That's true as to Bush and as to Kerry. But if you're going to quibble about other people supposedly getting something wrong (even if just stylistically wrong), you should at least get your quibbles right.

So far, both installments of Slate's Kerryism have made more serious errors than they've accused Kerry of making (see here for my criticism of Kerryism #1). Let's hope that future Kerryisms are a bit more accurate in their criticism. Or, better yet, that both the Kerryisms and Bushisms columns are set aside altogether.

I have to run, so I can't go in detail on today's Kerryism in Slate (see here for my criticisms of yesterday's), but one thing just jumped out at me: Kerry argued that we shouldn't amend the Constitution because "It's a document that we haven't touched, certainly with respect to the Bill of Rights, in years, and I don't think it should be used for the purpose of driving a political wedge through America." Slate says he should have dropped the "certainly with respect to the Bill of Rights."

If I had an editor like that, I would scream. The Constitution was mostly recently "touched" about 10 years ago, with the addition of the Twenty-Seventh Amendment. That's a special case, since it was ratified over 200 years, though I think most ratifications came in the last 20 years of the process. But since 1960, there have been five amendments, including the Twenty-Seventh.

The "certainly with respect to the Bill of Rights" might be a caveat, but it's a necessary caveat — otherwise people could reasonably say that while we literally haven't touched the document "in years," we have changed it quite a bit within many voters' lives. You can't just remove it and claim that the result "is Kerry's quote translated into plain English." The result is Kerry's quote made wrong, or at least misleading and subject to factual criticism.

Actually, it's Kerry's quote made more wrong. The Federal Marriage Amendment would not change the Bill of Rights (except to the extent that one thinks the right to marry is already guaranteed by the Fifth Amendment Due Process Clause, which Kerry presumably doesn't believe). But be that as it may, the Slate "translat[ion]" does nothing to fix this error, and merely adds another error.

from Larry Solum (Legal Theory Blog).

Last Saturday, I criticized the L.A. Times for its account of supposed military unfitness. My suspicion is that, though the Times was using military "unfit to fight" designations as if they simply meant that the unit was in fact unfit to fight, the designation is actually a military term of art that refers to the unit's ability to pass various tests. Some of the tests are closely related to actual fitness to fight and others of which aren't. But especially when a unit has been in combat, the designation is at most loosely correlated to the unit's actual fighting capacity; and the prevalence of that designation among various military units is likewise at most loosely correlated to the military's aggregate fighting capacity. Because the Times failed to make that clear, I suspect that most readers got an unjustifiably grim impression of the military's actual combat-readiness.

After I posted this, a few readers said that Bush, while a candidate in 2000, made a similar error; one reader actually pointed me to some contemporaneous newspaper articles describing Bush's statements on this (which is much more valuable to me than just a general claim that "Oh, Bush did it, too"). One article, for instance, reported that Bush faulted Gore "[c]iting reports that two of 10 Army divisions were not at the highest state of readiness." See also Bush's acceptance speech, where he says something similar, and also this article. (Thanks especially to readers Brent Ware and Jeremy Bloom for the pointers.) My correspondents suggested that these reports also flowed from the divisions' having been deployed in the Balkans (though naturally in far less taxing roles than the military's current Iraq roles).

I wanted to flag this, because if indeed Bush was making the same mistake as the Times seems to be, he should indeed be faulted for it. (I'm too swamped to look further into how similar the situations actually were, especially since that's not really important to my point.)

But naturally this does little to excuse the Times on this score. Among other things, I'd hope that newspapers would have a higher standard for unbiased reporting than would presidential candidates.

How sad:

Uncle Milton's Giant Ant Farm is a fun, interactive way to teach children ages 5 and up about unceasing, backbreaking toil and the cold, inescapable reality of death. My little ones had a front-row seat as worker ants labored, day in and day out, until they inevitably died of exhaustion, their futile efforts all for naught. The ant farm, complete with stackable tiny ant barns, see-through 'Antway' travel tubes, and connecting 'Antports,' is a child's window into the years of thankless, grueling labor that await them as worker drones in our post-industrial society. It's the fun way to teach your kids to accept their miserable fate stoically.

The ants, which come separately from the farm, are bred in New Mexico and mailed directly to your home. Within days of arriving, a majority of the ants die at the hands of the small children responsible for regulating the temperature, humidity, and food supply in their delicate pseudo-ecosystem. Even under optimum conditions the ants survive no more than 20 weeks in the farm. As a result, children are assured the chance to contemplate the inescapability of their own mortality and the whole family will be reminded that the spectre of death hangs over every creature on this Earth.

The lesson that the ants' labor is all in vain becomes clearer as time passes. During the first two to three weeks, the exclusively female worker ants are extremely productive, building an elaborate system of tunnels and hills amongst the miniature green trees and red plastic houses dotting the interior of the plastic dome. However, because neither male ants nor a fertile queen is provided with Uncle Milton's Giant Ant Farm, making reproduction impossible, the farm is doomed to extinction from day one.

You'll learn such fascinating things about the natural world, like the fact that the social structure of an ant colony is extremely complex, with individual members occupying such castes as soldier, messenger, and larvae attendant. At some point, Uncle Milton's ants become cognizant that their hierarchical structure has been stripped away, rendering their already near-meaningless existence totally futile. There seems to be a breaking point at about the 22-day mark when the dejected ants begin to die off en masse.

At this point the ant farm enters what is known as the "death-pile phase." A spot is chosen by the worker ants to deposit their dead, and the burial mound steadily grows as the few remaining ants devote more of their time to gathering and burying others. Yes, with Uncle Milton's Giant Ant Farm, arbeit macht fun!

UPDATE: Several readers report that the gag is originally from the June 2000 issue of The Onion; much appreciate knowing that, and being able to give credit where it's due.

Now, for another geography question — this one shouldn't be too hard or esoteric — with an extra credit history question.

First, the basic question: Which islands are split among two or more countries? Exclude islands with an area of 2500 square miles or less. Don't count military bases and embassies. And exclude islands on which a rebel force exercises de facto control over part of the territory, but without broad international recognition (Cyprus is the classic example). My tentative answer:

([Click here to show.])

Second, the extra credit: If you go back to 1925, what other islands would meet this criterion? Exclude islands that were under mixed control because of relatively brief periods of warfare (say, under five years).

([Click here to show the tentative list I have so far.])

Paul Craig Roberts, responding further to my criticisms below, sent me an e-mail with the subject line "for your education on Brown," and the text:

Mr. Volokh:

Why not link to this? Then people can make up their own minds which of us knows what he is talking about.

Paul Craig Roberts

http://www.lewrockwell.com/orig/brown.html

Sounds like an excellent plan to me.

That seems to be the true substance of Slate's latest feature, Kerryism of the Day.

The complaint: "the pomposity and evasiveness of John Kerry." The structure of the critique:

Here's how to read a Kerryism. The text below is Kerry's quote translated into plain English. Kerry's actual quote, however, is full of caveats and pointless embellishments. To read these, click the numbers above the text, which will take you to the caveats and embellishments, presented as footnotes. (Words in brackets before a number are what a normal person would have substituted for the ornate phrase Kerry delivered. To see the ornate phrase, click the number and read the footnote.) To return to the main text, click the number at the beginning of any footnote. To see the whole quote as Kerry delivered it, with all the caveats and embellishments, click here. To get back to this Kerryism, click "Return to English version."

"Let me just say¹ that the² abuse of Iraqi prisoners³ is⁴ unacceptable⁵. And the response of the administration⁶ has been slow⁷. I believe the president needs to [give]⁸ an explanation. What happened there has done a disservice to all of our troops^{9 10 11}, and it¹² undermines America's¹³ efforts in the region. It [puts]¹⁴ our troops¹⁵ in further jeopardy. It can increase acts of terror against America¹⁶, and it undermines the¹⁷ effort of the United States in the region. So¹⁸ it is important to [understand]¹⁹ this as rapidly as possible and to make that explanation²⁰ to the world."

—Los Angeles, May 5, 2004

[1] very quickly

[2] horrifying

[3] which the world has now seen

[4] absolutely

[5] and inexcusable

[6] —certainly the Pentagon—

[7] and inappropriate

[8] guarantee that the world is going to have

[9] who serve with great valor

[10] and greater courage

[11] and, I think, with distinction

[12] also

[13] own

[14] has the potential of putting

[15] —the rest of them—

[16] and Americans

[17] overall

[18] I think

[19] have an understanding of

[20] and any other appropriate comments

I'm no political expert, but it seems to me that Kerry had very good reason to include much that he included — and most of it was neither pompous nor evasive. It wasn't pointless embellishment because it had a perfectly good political point.

Consider Slate's deletions 2, 4, and 5 (I'll incorporate deletions 1 and 3, which are indeed good edits). These changed Kerry's words from "Let me just say that the horrifying abuse of Iraqi prisoners is absolutely unacceptable and inexcusable" to "Let me just say that the abuse of Iraqi prisoners is unacceptable." I don't see what's pompous or pointless about stressing that Kerry thinks that the abuse is not just unacceptable, but absolutely unacceptable, horrifying, and inexcusable. The words that Slate would delete may not add much purely logical substance. But they are valuable intensifiers that help convey (especially in an oral presentation) the strength of his feelings.

Likewise, consider deletions 6 and 7, which change the next sentence from Kerry's own "And the response of the administration, certainly the Pentagon, has been slow and inappropriate" to Slate's "And the response of the administration has been slow." I take it that Kerry was trying to get in a special dig at the Pentagon — a more concrete target than the more abstract administration — and also stress that the administration's actions were inappropriate (i.e., substantively inadequate, even regardless of the timing) as well as slow.

I likewise think Kerry had good reason for saying what Slate faults in deletion 8, but let's go on to the next sentence. Kerry said "What happened there has done a disservice to all of our troops who serve with great valor and greater courage and, I think, with distinction." Slate would change this to "What happened there has done a disservice to all of our troops." But it seems to me quite politically sensible — hardly pointless or pompous — for Kerry, who's faulting the administration for the misconduct of a few troops, to at the same time praise our troops generally. I agree that "and, I think, with distinction" only weakens the statement, and should go. But "What happened there has done a disservice to all of our troops who serve with great valor and greater courage" is probably politically much better than Slate's overedited version.

I agree with some of Slate's other edits and disagree with others, but I won't take your time further with that. I hope I've supported, though, my basic point: The author of Kerryisms seems to have come up with some ideal, Spartan style and is faulting Kerry for not conforming to the style. But this style omits much of the emotional content that politicians understandably want to include, and some of the repetition that speakers often find to be helpful in oral presentations (even if it would be distracting or unnecessary in written work). Kerry has very good reasons to use his own style — and many aspects of that style that Slate condemns are not pompous, evasive, or pointless.

More broadly, while I applaud Slate's willingness to "cast an equally cold eye" on both candidates, I shudder to think of what would happen if Kerryisms became the same sort of column as Bushisms — a continuing quest for something that the author can nail Kerry on, with the "gotchas" often being simply legitimate differences of style or errors of the sort that most speakers routinely make. A better sort of equal treatment, I think, would be to retire both columns.

Finally, I express no opinion on whether Kerry is indeed often pompous or evasive, or engages in pointless embellishment. I also can't speak to how Kerry's statement here came across orally — maybe his delivery was lousy, even if the text was fine. I say only that this is a pretty poor example of what Slate is seemingly trying to prove. And it bodes ill for this column.

Did the recent judicial appointments deal -- in which the Democrats promised to let through some relatively uncontroversial judicial nominees in exchange for the Bush Administration's promise not to make recess appointments until the next inauguration (whether of Bush or of someone else) -- give the Bush Administration more than what they had before they started making recent appointments? If so, it would be something of a political victory for Bush. Or did it just free up nominees who were bottled up because of the recess appointments, and who would have been confirmed this year anyway had Bush not started the recess appointments? If so, it would be something of a political defeat for Bush.

I had thought the answer was the former, because I thought that even some of the noncontroversial appointees were being held up, partly because the Democrats figured they could do it, and partly because in recent years, people have generally tended to get held up in the last year of a Term (so long as the other party has had the power to hold them up). But various correspondents have suggested that the answer is the latter. Byron York at NRO likewise agrees.

I'm not expert enough on the politics of the matter to have a confident opinion (and I don't have the time to try to acquire one now), and given these counterarguments, I think I ought to withdraw even my tentative opinion. Perhaps the matter is yet more complex than the York column describes -- for now, let me just say that I no longer have any confidence in my earlier stated view.

[UPDATE: I think I was mistaken in the post below; see here for my explanation.]

It looks like the Administration's decision to appoint some controversial judges via recess appointments has led to a political victory on other appointments:

Democrats will allow votes on 25 noncontroversial appointments to the district and appeals courts that they've been holding up for months. In exchange, Bush agreed not to invoke his constitutional power to make recess appointments while Congress is away, as he has done twice in recent months with judicial nominees.

The deal lasts until a second Bush presidency begins or a new president takes office, officials said. The agreement was struck days before the Senate began its Memorial Day recess, in a meeting among top Senate Democrats and Republicans as well as Andrew Card, the White House chief of staff.

So recess appointments seem to have been an effective bargaining chip. (I set aside the debates about whether such appointments are constitutionally sound, a matter on which I have no informed opinion; I speak here just of the politics.)

Naturally, if Bush loses enough votes in the election as a result, then it won't be much of a net victory after all, but I rather doubt that this would happen. It's also possible that Bush's actions lost him goodwill with some Senators, and thus made various other things harder for him; I don't know enough to be able to speak to that. (The article gives a bit more of the political picture — do read the whole thing if you're interested in the subject.)

But at first glance, it looks like the recess appointments gambit has paid off, and has helped Bush get confirmed some nominees who might otherwise have remained bottled up.

UPDATE: A reader suggests that perhaps the 25 noncontroversial appointees would have gotten through in any event were it not for the recess appointments. I'm skeptical about that, partly because I think — given the past delays even on the relatively noncontroversial appointees, and given the temptation to block all nominations during an election year — that the Democrats would likely have blocked many of the 25 in any event. But I might well be mistaken. The reader writes:

You'll probably want to confirm with someone who's far more up on the ins and outs than I, but I think that it was hardly the recess appointments that were an "effective bargaining chip." The recess appointments were a response to the Democratic filibusters of the half-dozen or so controversial nominees (Brown, Kuhl, Haynes, Pickering and Pryor themselves, etc.). Those folks still will not get a vote. In response to the aggressive use of the recess-appointment power, the Dems held up dozens of noncontroversial appointees who otherwise would have been easily confirmed. They did so because if Congress begins to permit the President to call a ten-day adjournment a "recess," the advice and consent power is seriously threatened. In response to this Democratic "hardball," the Administration cried "uncle" on the recess appointees, and the Dems therefore agreed, as the story you quote indicates, to "allow votes on 25 noncontroversial appointments." The President is no better off, in other words, than he was before he appointed Pickering and Pryor (except, of course, that he has both of them on the bench temporarily).

Several readers e-mailed me to express some disapproval of Brown's relying on social science evidence for its rejection of "separate but equal." Here's one statement of the argument from someone whom I much respect, Dr. Thomas Sowell:

While Brown in effect overruled the 1896 Plessy v. Ferguson Supreme Court decision that racially "separate but equal" facilities were constitutionally acceptable, it avoided saying that Plessy was simply a wrong interpretation of the Constitution — that is, wrong in 1896 as well as wrong in 1954. Instead it relied on "modern" psychological knowledge, not available to the Court in 1896, to show how separate could no longer be considered equal.

This approach finessed the whole question of why the Warren court's reading of the Constitution was superior to that of the 1896 Supreme Court, rather than simply reflecting a different social preference. Such a question would undoubtedly have stiffened the resistance to the Brown decision, which was stiff enough as it was in those states where racial segregation existed.

Chief Justice Earl Warren said that racially separate schools "are inherently unequal," even when they were provided with the same tangible resources. To separate black children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

Inspiring as such rhetoric may seem, it establishes no fact, nor even a probability. I happen to have been one of those black children who went to a segregated school in the South. The fact that there were no white kids in our school was something that no one I knew ever expressed any concern over, or even noticed. There were no white kids in our neighborhood or anywhere we went. Why would we be struck by the fact that there were no white kids in our schools — much less be so preoccupied with that fact as to interfere with our learning the three R's?

As I understand it, some of the studies on which Brown has relied on have indeed been questioned. But it seems to me that Brown was both right to consider social science evidence, and to reach the result that it did as to deliberate, legally enforced racial segregation.

Let's start with the background. The Fourteenth Amendment mandates "the equal protection of the laws," and the Supreme Court early on recognized that the purpose of this was largely to prohibit race discrimination. But this left an important question: Does it violate "equal protection of the laws" when blacks and whites are required to use separate facilities?

As a purely abstract matter, the answer isn't clear. On the one hand, blacks and whites are being treated unequally, in that one must go to one place and the other to another. On the other, if the facilities are indeed equal — in practice, they often weren't, but assume (as the Court in Brown did, given the factual assertions made by the courts below) that they were equal or at least nearly equal — one can argue that this suffices to give blacks and whites equal practical benefits. For instance, we rarely think of separate bathrooms for men and women as even posing much of an equal protection problem; partly this might be because we're just used to them, and partly because we rightly don't think of sex classifications quite the same way that we think of race classifications, but it's also largely because as a practical matter men and women are being given pretty much the same thing.

But it has been quite clear for a very long time that, unlike with separate bathrooms for the sexes, the system of racial segregation was largely intended as a means of expressing majority contempt for blacks, and majority views of the inferiority of blacks. That's how it was intended, and that's how it was perceived. The question is whether this reality was legally relevant.

The Plessy majority's endorsement of "separate but equal" rested on the view that the social message of segregation was irrelevant:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

This strikes me as quite unpersuasive, and it didn't persuade Justice Harlan, either:

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

The law, Harlan reasoned, "proceed[ed] on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens[.] That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana." It seems to me that he was correct. And he was also right to be attentive to the clear message that a law sends, rather than just its tangible effects. As the Titles of Nobility Clause recognizes, the social message of facially discriminatory laws that separate some out as superiors and other as inferiors is a wrong that it is proper for the Constitution to forbid. (See also Story's Commentaries on the titles of nobiltiy.)

So the Brown Court was facing the same question that the Plessy Court: Is segregation inherently a violation of the requirement of "equal protection"? The Justices likely shared Justice Harlan's sense of the matter, and they were right. The Plessy majority's argument that "[if the law] stamps the colored race with a badge of inferiority . . ., it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it," is just mistaken: The segregation of the races in America was intended to stamp blacks with a badge of inferiority, and was seen as doing so, precisely because of the racial classification embodied in the act, rather than "solely because the colored race chooses to put that construction upon it." "[T]he Warren court's reading of the Constitution" was indeed "superior to that of the 1896 Supreme Court" in this respect, because it was a more accurate understanding of the purposes and effects of the law.

But they sought to buttress their conclusion on the ultimate question — does segregation end up violating the requirement of equality? — by trying to also point to more concrete evidence that segregation didn't just offend black schoolchildren, but impaired their education:

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [Footnote: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).] Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . .

This seems to me like an eminently sound form of argument: Common sense understanding that "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone," buttressed by psychological evidence that is consistent with this understanding. Again, one can agree or disagree with some items in the sources the Court cited. But it seems to me that the Court's analysis was basically correct here, and its willingness to consider social science evidence that bears on the factual question of whether segregation does indeed send a harmful message of inferiority was quite legitimate.

I'm glad that Dr. Sowell paid no mind to the laws that were intended to brand blacks as inferior, and were understood by many as in fact conveying that message. But I can't fault the Brown Court for taking the view that many black students would indeed pay attention to the legal constraints that were imposed on them. As Story wrote about the Titles of Nobility Clause,

As a perfect equality is the basis of all our institutions, state and national, the prohibition against the creation of any titles of nobility seems proper, if not indispensable, to keep perpetually alive a just sense of this important truth. Distinctions between citizens, in regard to rank, would soon lay the foundation of odious claims and privileges, and silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government.

It seems to me quite reasonable to interpret the guarantee of "equal protection of the laws" — with the help both of common sense and psychological research — as recognizing the similarly harmful effects of "[d]istinctions between citizens, in regard to [race]."

Incidentally, I think there's much to criticize about post-Brown developments having to do with, for instance, forced busing; as I mentioned before, I certainly don't endorse race preferences; and, as I also mentioned before, one can also argue whether Brown (and especially its companion case, Bolling v. Sharpe, which struck down segregation by the federal government) are sound as a matter of original meaning. But I think that the particular criticisms of Brown that I mention above are not sound.

UPDATE: See here for more on Plessy from Clayton Cramer.

Dear Mr. Volokh: You are obviously unfamiliar with the case. You could read the case. You could read my account with Stratton in The New Color Line, or you could read a number of other accounts. Harvey Silverglate, a noted civil libertarian, for example, believes that Brown could have been argued as a 14th amendment case, although he understands that it was not.

In my own opinion, your opinions on these issues outrun your knowledge.

I recommend that you read the New Color Line. Brown was not argued as a 14th amendment case, because the Justices and Ellman in the DOJ, all of whom wanted to get rid of segregation, were convinced that it could not be done on the basis of the 14th amendment. You can read their own words. This is generally known, not some claim unique to me. What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. . . .

What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. I am sorry to be rude, but I do think your insinuations that I am some kind of nazi for speaking truth to myth are worse than rude.

Consider this ACLU press release from a few months ago:

The American Civil Liberties Union of Washington today announced an agreement settling a discrimination complaint filed by a gay man against a local business that refused to print invitations to his wedding with his same-sex partner. Under the agreement, the business owner has apologized for her actions and agreed to abide by Seattle's anti-discrimination law in the future.

"Our nation's commitment to ending discrimination requires businesses to serve all customers equally," said ACLU of Washington staff attorney Aaron Caplan, who represented the gay man in the case. "Business owners are entitled to their private opinions about same-sex marriage, but discriminatory business practices are not permitted."

In August 2003, Seattle resident Tom Butts contacted Starfish Creative Invitations to hire them to print invitations for his upcoming wedding ceremony with Scott Carter in Vancouver, British Columbia. Butts liked samples of the company's work he had seen and liked the fact that it was a local business. But Starfish, a Seattle company, refused to provide their services because, in the proprietor's words, she believes "homosexuality is wrong" and same-sex weddings are "against her belief system."

The business owner's refusal violated Seattle's Open Housing Public Accommodations Ordinance, which protects an individual's right to purchase products and services without regard to sexual orientation. With legal representation by the ACLU, Butts filed a complaint with Seattle's Office for Civil Rights, the agency that enforces the non-discrimination law.

Under the settlement announced today, the business owner acknowledged that all persons should be treated with respect and dignity, regardless of sexual orientation, and she apologized that her actions offended and hurt Butts. She agreed not to violate Seattle's anti-discrimination law in the future. Butts and Carter were married in October 2003.

(Thanks to Justin Katz for the pointer.)

One common argument — perhaps the most common argument — in various gay rights debates is "How do equal rights for gays hurt you?" We hear it repeatedly in the gay marriage debate; we hear even more of it in the debate about decriminalization of same-sex sexual conduct.

The argument has a great deal of merit as a general approach to looking at things. It's not the only question, since especially when it comes to government-provided benefits, one important question should be how the extension of benefits helps society, and it's not an unanswerable question. But it is an important question. Part of the pro-gay-marriage-rights side's recent relative success flows from the difficulties that the other side has had in articulating a concrete and persuasive explanation of how gay marriage rights would hurt the rest of us.

But as the ACLU press release shows, the gay rights movement has affected others, by legally restraining their freedom of choice. The woman whom the ACLU went after has been essentially legally coerced into helping put together an event that she finds morally repugnant. Whether or not we agree with her, I think we must acknowledge that this is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.

Of course, this freedom has been restricted in some measure by other antidiscrimination laws; and I do not claim that this freedom is generally constitutionally protected (though some aspects of it might be protected under some state constitutional religious freedom guarantees). But this doesn't make the remaining freedom any less important to people, as the examples in the preceding paragraph show. Our business lives and our property rights are regulated in all sorts of ways. But we still have reason to complain about new regulations, and to reject claims that some law is harmless to us when the law actually constrains our freedom of choice.

Now this restriction on freedom of choice is not a logically necessary consequence of, say, the decriminalization of homosexual sex, or even of the recognition of same-sex marriages (recall that this happened in Washington State, where same-sex marriages aren't legally recognized). One can imagine a libertarian regime in which gays enjoy freedom from government interference with their liberty, and enjoy equal access to government benefits, but those who disapprove of homosexuality enjoy equal freedom not to help with practices and rituals that they find abhorrent. But that doesn't seem to be how our legal system works these days. Greater legal acceptance of homosexuals' freedom from government intrusion and government discrimination has indeed been accompanied with greater constraints on private choices not to deal with homosexuals. There are many reasons for this (chiefly attitude-altering slippery slopes and multi-peaked preferences slippery slopes, under which some voters take the view that once certain sorts of behavior are recognized as legitimate they generally shouldn't form the basis of private discrimination as well as public discrimination, and also perhaps in some measure political momentum slippery slopes and political power slippery slopes); but whatever the reason, it does appear to be the case.

This having been said, I still on balance support government recognition of same-sex marriage, and I strongly support having same-sex sexual conduct be legal. I realize that such action will probably increase the likelihood of bans on private sexual orientation discrimination, but though I oppose such bans, I think that on balance the benefits of recognizing same-sex marriage and decriminalizing same-sex sexual conduct exceed the costs.

But I quite understand why people who morally disapprove of homosexuality fear that the gay rights movement will mean not just more liberty for homosexuals, but less liberty for those who disapprove of homosexuality.

In my most recent response to Paul Craig Roberts, I took him to task for faulting Brown as "government by judges" but stating that he agreed with Justice Harlan's Plessy v. Ferguson dissent, which would have accomplished much the same thing. Dr. Roberts replied as follows:

Dear Mr. Volokh: The answer is simple: Justice Harlan's position was based on the 14th Amendment. The Brown decision was NOT based on the 14th amendment. Amazing that I have to point this out to a law professor!!!

I then e-mailed Dr. Roberts the following:

Hmm; the Brown Court described the case as involving the allegation that segregation "deprive[d] the plaintiffs of the equal protection of the laws under the Fourteenth Amendment," mentioned the Fourteenth Amendment several times during its opinion, and ultimately held "that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. What exactly do you mean then by "The Brown decision was NOT based on the 14th amendment"?

Dr. Roberts then sent the following:

Dear Mr. Volokh: You are obviously unfamiliar with the case. You could read the case. You could read my account with Stratton in The New Color Line, or you could read a number of other accounts. Harvey Silverglate, a noted civil libertarian, for example, believes that Brown could have been argued as a 14th amendment case, although he understands that it was not.

In my own opinion, your opinions on these issues outrun your knowledge.

I recommend that you read the New Color Line. Brown was not argued as a 14th amendment case, because the Justices and Ellman in the DOJ, all of whom wanted to get rid of segregation, were convinced that it could not be done on the basis of the 14th amendment. You can read their own words. This is generally known, not some claim unique to me. What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. I am sorry to be rude, but I do think your insinuations that I am some kind of nazi for speaking truth to myth are worse than rude. My criticisms of Brown have nothing whatsoever to do with segregation. They have to do with precisely what my column states: the substitution of coercion for persuasion and the denial that good will is an effective basis for reform. The result today is status-based legal rights, which you conflate with social conventions.

Well, I've already spoken to how "substitution of coercion for persuasion" applies equally to the Plessy dissent — which would have coercively dismantled segregation just as Brown did — and how "status-based legal rights" have existed in the U.S. since the founding of the nation, and are hardly the "result" of Brown. But since Dr. Roberts' most recent points seem focused on whether Brown (which, as it happens, I have indeed read) is "based on the Fourteenth Amendment," I quote Brown:

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. . . .

The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. . . .

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. . . .

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. . . .

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. . . .

We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. [footnote:] "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment "(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or "(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? . . . [end footnote] . . .

"The Brown decision was NOT based on the 14th amendment" — accurate or not? You decide.

Cool geographical factoids on this subject here (and in the pages linked to in the upper left-hand corner) and here. My favorite: Cooch Behar (a map from when Bangladesh was still East Pakistan, but apparently relatively reliable still).

Thanks to reader Heinrich Foltz for the pointer.

I'm working on the second edition of Academic Legal Writing, and I'd love to hear any suggestions that readers might have for improvements. Are there any new items that you think I should add? Any errors that need to be fixed? Please let me know, at volokh at law.ucla.edu. Thanks!

My wife and I just saw it on DVD last night, and much enjoyed it. I highly recommend it -- it's a fascinating story, well-told.

By the way, the Forbes Digital story that first blew the whistle on the story, and which is prominently featured in the movie, is available here.

I thought I'd mention to D.C. readers that Sasha will be talking at the American Enterprise Institute next Wednesday (the 26th) from 2 pm to 3:30 pm (at 1150 17th St. NW) about part of his Ph.D. research:

The expansion of products liability law, which has taken place since the 1960s, ostensibly helps workers. Previously barred by workers' compensation laws from bringing suits against manufacturers of defective products, workers can now sue for recovery from job injuries caused by these products. Research by Alexander (Sasha) Volokh of Harvard University indicates, however, that workers pay for this option in the form of reduced wages. Volokh's research highlights the need to consider the impact of liability system reforms on the entire economy before implementing reforms.

The talk is free and open to the public, though I think you need to register here.

UPDATE: I originally erroneously said Sasha would be speaking this Wednesday -- actually, he'll be speaking next Wednesday (the 26th); I've updated the post accordingly.

1. He seems to praise decisions -- or call for decisions -- that strike down "racial quotas and preferences" that hurt whites. But he condemns as "government by judges" Brown v. Board of Education, which struck down racial quotas and preferences that hurt blacks.
2. He routinely uses language that seems to suggest that race and sex preferences are recent innovations, created to burden whites and men, and doesn't acknowledge that in fact race and sex preferences have long existed under American law, generally hurting nonwhites and women. My original post pointed to language such as "Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake," and (from an earlier column) "[the] essential feature [of the original U.S. Constitution] -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation." My follow-up post pointed to Roberts' response 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." In fact, inequality before the law, racial quotas and preferences, and differential group rights based on skin, color, gender, disability, and sexual orientation long existed under the original U.S. constitution -- and most certainly during the Plessy era. For all its faults, the civil rights movement helped diminish these quotas, preferences, and differential group rights. I'm quite troubled by Dr. Roberts' general failure to acknowledge this past discrimination against nonwhites, women, and other groups, and to talk as if race and sex discrimination were "ushered in" by -- in the sense of being a new development caused by -- the civil rights movement.

I have read your response. You conflate many issues, and you avoid my points that Brown substituted coercion for persuasion and good will and established rule by judges. Justice Stanley Reed, who was a party to the Brown decision, explicitly referred to it as "kritarchy." Just because you don't understand doesn't mean that the justices did not understand. Your approach to reform is ahistorical. You seem to think that societies should be born morally perfect by the standards of later centuries. For example, you go on about women not having the vote as a legally imposed inequality. But of course, societies had not thought of women having the vote. When they were ready for women to have the vote, it was done without Supreme Court coercion. Your notion of race and sex preferences is not a legal one. No Supreme Court ever ruled that men were legally privileged and women were legally inferior or that whites were more equal than blacks. Plessy's ruling was separate but equal. Plessy did not rule that blacks were inferior and therefore consigned to inferior status. When the Supreme Court permitted racial segregation under Louisiana law regulating public transportation in Plessy v. Ferguson in 1896, it did so on the grounds that the state law required equal facilities and that separate accommodation was a social convention, akin to earlier "ladies' cars" on public trains, that did not apply "to nurses attending children of the other race" and did "not necessarily imply the inferiority of either race to the other." In other words, even segregationists had to accept equality before the law as the operative de jure principle. In his famous dissent, Justice Harlan was concerned that the Louisiana law would allow class distinctions to enter the legal system in the form of race distinctions. The Louisiana law was particularly dangerous because blacks and whites were economically as well as racially distinct. Thus, racial distinctions were also class distinctions. Harlan was certain that he wanted no status-based distinctions in the law. Your fundamental error in your response to my article is that you confuse the historical development of society with abstract legal principles. Prior to the "civil rights revolution," status-based legal privileges or group rights were considered to be a feature of pre-modern feudalism. They were the antithesis of equality before the law. Now they are upheld as evidenced by the recent Michigan case.

I got lots of responses to this puzzle, and many involved some quite interesting little corners of the world, where tendrils of one country snake a long distance into another. Nonetheless, I've come to think (together with reader Rich Rostrom, who also recommended this) that for the puzzle to be especially esthetically pleasing — an obviously highly subjective judgment — we have to somehow eliminate the micro-concavities, such as the ones shown on this Brunei map (thanks to Julia Bauder), the ones on this Tajikistan map (thanks to Kenneth Hahn), or the ones that Heinrich Foltz noted as to a portion of the Ireland / Northern Ireland border. So I suggest that the requirement be that the two points be at least 15 miles apart by the short route, which includes my favorite answer (Gambia as a concavity inside Senegal) but excludes the tiny ones. Here's Rich Rostrom's take on this:

There are little tiny wiggles in some national borders that have very high base-to-depth ratios, but they're tiny: horseshoe bends in rivers, and such. If these were allowed, the contest would in effect be for the narrowest base, something hard to determine off maps of any but the largest scale. (Some of these mini-bulges are less than a km across at the base.)

On the large scale, Senegal/Gambia is a good candidate. Using this map I arrived at a ratio of 16.5. (The base is at the inside corner where the southern border jogs north.)

I looked at some other African boundaries:

Malawi and Mozambique (with the base cutting across Lake Nyasa) [and] Congo and Zambia[, but] they came in rather lower (6.68 and 8.09).

I looked at India/Bangladesh (West Bengal to Tripura). The base is wide, and the ratio is only 4.70.

I considered the intricate mess that Stalin made of central Asia, between Kyrgyzstan, Tajikstan, and Uzbekistan. But it appears that all the protrusions have fairly wide bases.

At a smaller scale, I considered Brunei-Malaysia. Brunei consists of two enclaves on the west and south sides of Brunei Bay, with a short stretch of Malaysian coast between. The eastern enclave is long and narrow, for a ratio of 8.72.

There is a protrusion of Lithuania into Belarus, SSE of Vilnius. This hernia-like blob is 5 km at the neck and 61 km around, for a respectable ratio of 12.2, but still well below Senegal/Gambia.

Another small scale candidate was Switzerland and Germany (the Schaffhausen canton north of the Rhine.) Schaffhausen has a nice mushroom shape, but the base seems narrower than it is, due to a German enclave there; the ratio is only 5.83.

However, the western lobe of Schaffhausen comes near a north-of-the-Rhine extension of Zurich canton, with a wedge of Germany between. The gap at the base of the wedge is only 1.3 km across, yet to get from the Swiss territory north of the gap to the Swiss territory south of the gap, travelling through Switzerland only, one must go 33.6 km, for a ratio of 25.9.

I think that may be the record. Though it does approach the smallest-possible-base type of concavity. [This] shows the neck. [This] shows the region.

Somehow this doesn't seem like what you're looking for, though. . . .

Here's an excerpt from an NPR story I heard yesterday evening; anchor Linda Werheimer is speaking to reporter Anthony Brooks. The story was presented as coverage of a news event, not as an opinion piece:

BROOKS: . . . Nationally, tomorrow will be the starting point of what will likely be a series of court challenges. Out-of-staters who get married here will take their marriages back to their home states, and at least a few of them will demand that their marriages are recognized back home. And some 38 states have so-called Defense of Marriage Acts, but that would conflict with constitutional provisions that recognize contracts and agreements from state to state. So all of this will end up in the courts in the years to come before it's all sorted out.

Now as it happens there's a hot debate about whether state Defense of Marriage Acts are unconstitutional. Many opponents of same-sex marriage and many supporters argue that the state DOMAs and the federal DOMA are quite constitutional. Some supporters of same-sex marriage make this a major part of the argument: There's no need to enact a Federal Marriage Amendment, they say, because it's right for each state to decide whether to recognize same-sex marriages (both in-state and out-of-state marriages), and existing law allows states to do this. Some supporters of same-sex marriage argue the contrary, and say that the DOMAs are indeed unconstitutional, and the Full Faith and Credit Clause mandates recognition of out-of-state marraiges. (Some opponents of same-sex marriage argue that such a result is possible and the Federal Marriage Amendment is therefore necessary, but I've heard no such opponents argue that the result is indeed correct and that the DOMAs are indeed in conflict with the constitution.)

And yet this NPR reporter simply asserts that the DOMAs "would conflict with constitutional provisions" — not that there's a hot debate on the subject, in which even some proponents of same-sex marriage argue that there's no constitutional conflict, but that the laws indeed would conflict with the Constitution. Not particularly objective reporting, it seems to me.

Note also that the Full Faith and Credit Clause has never been understood as "recogniz[ing] contracts and agreements from state to state." The text refers to full faith and credit being given to "public Acts, Records, and judicial Proceedings," not to contracts and agreements. There's a debate whether a marriage fits within one of these categories (divorce decrees, which are court orders, generally do). But the debate is made complex in part by the fact that the Clause does not generally mandate interstate recognition of "contracts and agreements."

UPDATE: Reader Stephen Hardwick suggests that the reporter was just misspeaking: "[T]he context indicates momentary carelessness, not bias. While Mr. Brooks was wrong to say that DOMA's 'conflict with constitutional provisions[,]' the next sentence shows he inadvertently left out the word, 'possibly' (or the equivalent). That next sentence states that the effect of the DOMA's would have to be sorted out in the courts 'in the years to come.' If DOMA's were clearly unconstitutional, it would not take years. Unless there is something else in the report that indicates otherwise, it appears Mr. Brooks was correctly saying that the constitutionality of DOMA's is unclear."

I don't think the context is as clear as my correspondent suggests. Even when a law is clearly unconstitutional, it does take years to get it struck down. Add the time it takes to litigate the matter at the trial court level, the time it takes to appeal, the time it takes to petition for review by the state or U.S. Supreme Court, the time it takes for the Supreme Court to resolve the matter, and -- if the U.S. Supreme Court doesn't take the case -- the time it takes for enough lower courts to agree on the issue that the matter is seen as settled, and you're almost certain to have a process that takes many years. Nor do I see anything else in the context that points firmly towards the reporter's misspeaking, rather than deliberately expressing his view. Nonetheless, I do agree that it is indeed possible that the reporter did simply misspeak.

for adding a link to my criticism of Paul Craig Roberts -- and his response, also blogged here -- at the top of its copy of Roberts' column. I'm pleased when sites do that sort of thing, which strikes me as generally quite helpful to their readers, and to public debate.

The Duluth News-Tribune reports:

A southwestern Wisconsin man is fighting a civil citation for bringing a sign that read "F U G W" with him as he watched President Bush pass through Platteville last week. . . .

According to [a court] motion, [Frank] Van den Bosch was standing along a street in Platteville on May 7 with his sign waiting for Bush's motorcade to pass. . . . Van den Bosch then changed the sign to say "Free Us G W" and added "End the Occupation" on the back, referring to the war in Iraq.

A few minutes later, another police officer came over and ordered Van den Bosch to surrender the sign. Van den Bosch rolled up his sign and moved to the back of the crowd. He held it up as Bush went by.

Police then handcuffed him and took him to the police station, where he was photographed, fingerprinted, cited $243 for disorderly conduct and released. . . .

Platteville Police Lt. Tom Schmid said a business owner along the street had complained about the sign, and officers thought children might see it. Van den Bosch wrote the letters "r e e" and "s" in tiny print, Schmid said.

"We had to take some action," Schmid said. "If we were wrong, then the citation will be voided and taken care of that way. That's the way the system is supposed to work."

Uh, no. Under the Fourth Amendment, it's unconstitutional for the police to arrest someone unless they have probable cause to believe that he has committed a crime. Under the First Amendment, ever since Cohen v. California (1971) -- which upheld Cohen's right to wear a jacket with the words "Fuck the Draft" -- signs containing profanity (even if "F U" were interpreted as a profanity) are constitutionally protected. Carrying such a sign thus can't be a crime; and the police can have no probable cause to believe a crime is committed and thus no right to "take action" by arresting anyone.

The police have an obligation to act constitutionally themselves, and not just leave the matter to the courts (though the courts are of course there to double-check). And while this of course requires the police to know the law -- which is to say the law as modified by the Constitution -- that must be part of their training. Obviously the police department must teach the police what the law is, since otherwise the police can't enforce it. If the department taught the officers that the law bans public profanity on signs, then it taught them wrong. Thirty years after Cohen, there's no excuse for police departments to have their officers arrest people for carrying allegedly profane signs in public.

Thanks to Robert English for the pointer to the newspaper article.

Louisiana's House Judiciary Committee has recently approved a bill that would outlaw wearing low-slung pants in public:

It shall be unlawful for any person to appear in public wearing his pants below his waist and thereby exposing his skin or intimate clothing.

Now I agree that it's proper to regulate some public behavior on the grounds that it's offensive to passersby, especially because of its sexual suggestiveness -- and so do you unless you think that people should be free to have sex on the street corner. Even libertarians might, I think, take the view that so long as we have publicly owned common property, some such restrictions may properly be imposed on it in the interest of preserving it as an enjoyable place for the maximum number of users. (Consider also bans on public urination, which I believe are chiefly esthetic measures rather than health measures.) I do think this law goes too far, especially given that it authorizes a punishment of up to six months in jail ("And what are you in for?" "Third strike illegal pants-wearing."), but I can see the contrary view.

I also understand that the legislature understandably focuses on problems (or perceived problems) that currently exist, rather than the purely hypothetical ones.

Still, it seems to me a bit odd that, if this law passes, it would be illegal to wear low-riding pants that show your underwear -- but perfectly legal to take off those pants and just walk around in the underwear.

Reader Don McGregor writes:

The army has (not surprisingly) an extensive checklist for what constitutes "ready" or not. It's actually a graduated readiness appraisal, not a binary go/no-go rating.

Divisions are rated at C1 to C4. C3 means it can perform only some of its combat missions, and C4 means it may need additional manpower.

This is normal and expected for divisions coming back from deployment. Equipment needs to be overhauled, NCOs and officers need to go off to schools for training, etc.

The army used to use the individual replacement system in Vietnam and WWII, which meant that a unit like the 1st Cavalry division might stay deployed in Vietnam for years while individuals roated in for a one year tour. It was a disaster from a unit cohesion standpoint, since people don't fight well when they're placed with strangers or led by strangers. So the army is keeping whole units together for a full deployment, then rebuilding the unit after it comes back. This typically takes about 4-6 months.

Reader James Killmond writes:

The L.A. Times is using Army readiness reports to hang its story on. Army units have to file readiness reports. The Pentagon and all the higher-ups need to know whether the military assets they control can be used. No surprise there.

In peacetime, meeting readiness criteria is largely within the commander's control. With proper planning and budgeting, the commander should have little problem conducting the necessary training, maintaining the equipment, etc. Accordingly, failing to meet the criteria and having to report that a unit is unfit almost never happens because it tends to be a career-ender for the commander.

This is all different in wartime, of course. Equipment is used much more severely when deployed in combat than it is when used in training. Maintenance and training are still conducted, but have to be balanced with real missions. At some level, Army units in combat cannot maintain readiness indefinitely. Even if they are successful in combat, periods of rotation and refit are necessary. Our current Army is not well-sized for this, and some wear is inevitable. Spending more money on equipment would help and is probably being done. However, the L.A. Times would have to do a lot more reporting, not just reading readiness reports, before it could be concluded that there is a real problem.

As you note, in other conflicts U.S. Army units have sustained much higher casualty levels without losing effectiveness. The 101st is famous for its steadfastness. In the WWII battle of Bastogne that killed thousands, the completely encircled commander of the 101st, Gen. McAuliffe, had this response to a German surrender demand: "Nuts!". I would be skeptical of reports that the 101st isn't maintaining its usual morale.

Reader Rob Crowley writes:

As a former Special Forces major and current 1L, I'm probably in a unique position to answer your questions on the story about the 101st. As you correctly surmise, the correct answer is both 1 and 3--it is always like this, and the LA Times is actively spinning. That the LA Times is eager to paint our military situation as darkly as possible is probably not a big surprise.

Virtually every time a unit returns from a deployment it finds itself in the same situation--in need of retraining and an equipment refit. Training and operations wear out both. That's true whether the deployment is a couple of weeks in Panama, three months in the Balkans, or a year of combat in the desert. Men and equipment both need recovery time before they are ready to get back in the fight. That's just the nature of the beast. Of course, sand does play hell on kit, but I don't really think that's the point the LA Times was trying to get across.

From today's L.A. Times:

From their first days as "Screaming Eagles," the 18,000 soldiers of the Army's 101st Airborne Division are taught to be ready for anything. As the force's proud creed goes: "First in, last out."

But at its sprawling home base — after a long year in Iraq that wreaked havoc with the blades of its helicopters, the sights of its guns and the nerves of its soldiers — the 101st is as far from ready as it has ever been.

Outside a gun locker the other day, a soldier used a bristled brush to scrape out Iraqi sand lodged in the seams of his rucksack. In the motor pool, mechanics pulled the transmission from a bomb-battered Humvee. At a social worker's office, a soldier ticked off the names of buddies he had watched die and mourned the breakup of his romance back home.

The 101st has no choice but to fix itself. And fast. With Defense Secretary Donald H. Rumsfeld saying this week that the U.S. military presence in Iraq will stand at 135,000 troops for the foreseeable future, the Pentagon must prepare these soldiers to return to the fight.

What the 101st is going through is a microcosm of what lies ahead for the entire Army. Iraq is its biggest test since Vietnam, and the rigors of fighting a counterinsurgency have demolished much of the Army's equipment and allowed its soldiers' skills to atrophy. For the first time, three Army divisions — more than a third of its combat troops — are classified as unfit to fight. . . .

Wow, "as far from ready as it has ever been": There's sand in the seams of rucksacks. Transmissions need changing. Soldiers mourn their friends, and bemoan Dear John letters. Yup, I remember well that scene from Band of Brothers, where Easy Company was pronounced unready to fight precisely because of that.

So it seems to me there are three possibilities:

1. Our military has always been so easily rendered "far from ready."

2. Once, the military could withstand sand, transmission repair, death of fellow soldiers (at a scale far greater than we've seen in this war), and broken romances; but now it is no longer able to do so.

3. More likely, the L.A. Times doesn't really know much about what causes military units to be ready or unready — or, if it knows, it isn't really accurately telling us in this story.

Interestingly, the story never tells us what the military's "unfit to fight" designation exactly means. Is it a relative term? An absolute one? What does it tend to take to make a unit fit to fight again? Whatever it is, I doubt that the list in the opening paragraphs of the story says much about the matter.

UPDATE: On rereading, I realize that I might have missed one possible definition that the story did give:

But in order to be judged as fit for combat, the 101st and other returning divisions must restore themselves to readiness in every aspect of their potential mission -- even those that aren't required in Iraq. That means working through a checklist that includes everything from ensuring its soldiers are outfitted with the proper number of chemical protective outfits to verifying that enough of its soldiers can run a speedy mile. On parking lots throughout Ft. Campbell, soldiers have laid out the long strings of parachutes to make sure every one is free from knots. Inside the base gymnasium, they practice wrestling holds to prove themselves capable of hand-to-hand combat.

So I ask again: Are these units genuinely unready? Does sand in the gear, machines that need fixing, romantic troubles, and even grief over fallen comrades (58 dead and 387 wounded out of 18,000 total) make the unit really unfit to fight? Just which items on the checklist did they fail? Should we be worried about real unreadiness, or is this simply a technical military designation that's intended to get a unit to shape up, even if it's quite capable of doing the tasks that it is in fact likely to be asked to do?

We sometimes get e-mail from people asking us to link to their blogs. We actually very rarely add new blogs to the blogroll, which is already pretty long; perhaps this is a mistake, but that's our tentative approach to this. However, we're always happy to consider linking to interesting posts on other people's blogs. Two brief reminders about what tends to make this process easier for us (reminders to which I'll link from a permanent "Linking policy" link that I'll be adding to the front page):

1. Pitch the post, not the blog. If you have a post that you think we and our readers will find especially interesting, let us know about that — such custom-selected posts are generally more tempting than just a suggestion to read whatever happens to be on the front page of some blog.

2. Include both (a) the text of the post and (b) the URL of that particular post. When we're working from home, often on slow connections, this makes it much easier for us to read the post — and thus much more likely that we will read it and consider linking to it.

I suspect that many other bloggers have similar preferences to these.

Sorry to be so demanding, but the volume of e-mail that we get has ended up requiring this.

According to the AP,

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

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

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

An apt analogy, on which Clayton Cramer aptly elaborates:

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

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

Paul Craig Roberts responds to my criticisms:

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

mismanaged, rich school districts could have better equipped schools.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Editors' Note: May 13, 2004, Thursday

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

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

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

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

Thanks to Dov Fischer for the pointer.