For several weeks, the blog didn't show up right on some Mac browsers. That seems to be fixed now.

Cool -- I just learned that the name of one of my favorite games is apparently derived from Russian. What is it?

(Answer here.)

(Click here to see my list.)

A Seventh Circuit panel, in an opinion by Judge Posner, essentially holds large aspects of the federal Sentencing Guidelines scheme unconstitutional because of the recent Supreme Court Blakely decision. (That's an oversimplification, but it's close enough.) Judge Easterbrook dissents.

Special bonus: Use of the words "ukase" and "discombobulate." Thanks to Doug Berman (Sentencing Law and Policy) and How Appealing for the pointer.

UPDATE: Geoffrey Manne, a lawprof at Lewis & Clark, notes this little bit of sparring between Easterbrook and Posner:

Note this bit from Easterbrook's dissent:

Procedure first. The Supreme Court alone is entitled to declare one of its decisions defunct. Even if later decisions wash away the earlier one's foundation, still the power to administer the coup de grâce belongs to our superiors. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). . . . The Supreme Court alone can make a definitive judgment.

Slip Op. at 12. The reference to State Oil v. Khan is particularly poignant. Why? Because the appellate court opinion in Khan goes to great pains to adhere to Supreme Court precedent (precedent, in that case, described as having "increasingly wobbly, moth-eaten foundations") despite its strongly-expressed reluctance to do so. The appellate opinion in Khan practically begs the Supreme Court to reverse, but nonetheless feels bound by existing, if "moth-eaten," precedent. Of course the opinion was authored by Judge Posner. I should mention that Posner does, in his opinion in Booker (in the paragraph containing the word, "ukase," in fact), note the potential conflict with the State Oil v. Khan dictum, and he deals with and dismisses it. Still, Easterbrook's subtle barb seems to have been well-aimed.

I am delighted to report that my friend and former coblogger Orin Kerr, who specializes in criminal law, computer security law, and other matters at George Washington University law school in D.C., is rejoining the blog. He left last year to start his clerkship for Justice Kennedy, and now that he's done, he's back. I'm very pleased that he has returned.

I thought I'd pass along, in case anyone is interested, a draft of an exercise that I plan to eventually include in the next edition of my Academic Legal Writing book. Many law students tend to phrase things too abstractly; this exercise aims to help them make their writing more concrete and therefore clearer and more effective. (I realize that this is a matter of style, and different people have different views on the subject, but I'm quite confident that a concrete style is usually — not always, but usually — more effective than an abstract one.)

Consider this first paragraph in an article on laws that prohibit the wearing of masks in public:

The existence of antimask laws poses difficult questions of constitutional law. We know that the freedom of speech is one of our most cherished rights, especially when there is a danger that the free expression of unpopular speakers would be deterred by the fear of negative consequences. And yet the prevention of crime, including crime facilitated by the wearing of masks, must surely be ranked as one of the more compelling of the possible government interests. The public understandably wants to avoid the harm to property, persons, and the social fabric that may flow from such crime.

The purpose of the antimask laws, as the paragraph suggests, is to prevent crime: Anonymity can make it easier for people to get away with crimes; masks facilitate anonymity; so therefore banning masks should (at least in some circumstances) help prevent crime. On the other hand, some people will be reluctant to express unpopular views unless they can do so anonymously, so antimask laws deter some unpopular speech.

The grammar and spelling in this paragraph is fine — but the paragraph is too abstract, and too full of unhelpful generalities. Try rewriting it to make it more concrete, clear, and vivid.

(Click here for my proposed rewrite, and an explanation.)

Musing on Jefferson's "We might have been a free and a great people together" line, I did a google search for "a free and a great people together" (without the quotes). Here were the first ten results:

Great Expectation Dating Services

Quality online dating services Internet directory

PACT: Los Angeles Cat and Kitten Adoption and Rescue

Changing Lives Together . . . the online community of Barstow Free Methodist Church . . .

WEDDING DISC JOCKEYS CORPORATE ENTERTAINERS AND KARAOKE DJ ...

Free Dating Service - Online Dating Services

Bridal and Baby Shower Games - Free Bridal Shower Games - Free ...

AESU - Great Deals on European Tours!

Quotes - Democracy.Ru [which didn't include the Jefferson quote]

Free Online Dating Service Directory for Singles by Reystar Dating

Yes, I'm sure this is all pretty sensible if one understands google indexing algorithms. (Had I surrounded the search string with quotes, I'd have gotten the Declaration draft; my whole point was to exclude the quotes and see what google found for me.) No, I have no broad political or philosophical point with it. I just found the juxtaposition amusing.

The alternate history "What if the British had kept America?" thread reminds me of Jefferson's original draft of the Declaration of Independence. Jefferson had a paragraph in which he condemned his fellow Englishmen:

Nor have we been wanting in attentions to our British brethren. . . . [W]e appealed to their native justice and magnanimity, as well as to the ties of our common kindred to disavow [the English government's] usurpations . . . . They too have been deaf to the voice of justice and of consanguinity, and when occasions have been given them, by the regular course of their laws, of removing from their councils the disturbers of our harmony, they have by their free election re-established them in power. . . .

He went on some more, and then had this line, which I've always found quite poignant:

We might have been a free and a great people together . . . .

Reader Zev Sero points to Adam Smith's take (in 1776) on what would happen if the British kept America (as he thought they should, and they could with the right policies):

Such has hitherto been the rapid progress of that country in wealth, population, and improvement, that in the course of little more than a century, perhaps, the produce of American might exceed that of British taxation. The seat of the empire would then naturally remove itself to that part of the empire which contributed most to the general defence and support of the whole.

As I mentioned earlier, I suspect the English would have resisted this for quite a while, but Adam Smith is Adam Smith and I'm not.

My friend Arvin Tseng (Rebuttable Presumption) blogs:

Stupid, Dirty Girl

. . . Richard Riordan, former mayor of LA, and now state education secretary, told a 6-year-old girl that's what her name meant. Seriously.

The girl, 6-year-old Isis D'Luciano, asked Riordan if he knew her name meant "Egyptian goddess."

Riordan replied, "It means stupid dirty girl."

I mean, I'm all for making jokes. But they have to be funny. That was just mean, and served no purpose.

What was funny was that:

Democratic state Assemblyman Mervyn Dymally, who had scheduled a protest by civil rights organizations, canceled the demonstration after an apparent mix-up over the girl's racial background.

Dymally was quoted in the San Jose Mercury News Thursday saying the child was "a little African-American girl. Would he (Riordan) have done that to a white girl?"

The girl is white, with blonde hair.

Arvin's post has more, plus the link to the CNN news story (and I hope that at least the CNN story got its facts right).

from the Eighth Circuit federal appellate court, in Rife v. Ashcroft ("this issue" refers to fear of religious persecution):

The record on this issue is not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution from the ambiguous evidence in the Country Report that Israel may be less than receptive to proselytizing by its evangelical Christian residents.

Robert Reich writes, in The American Prospect:

The great conflict of the 21st century will not be between the West and terrorism. Terrorism is a tactic, not a belief. The true battle will be between modern civilization and anti-modernists; between those who believe in the primacy of the individual and those who believe that human beings owe their allegiance and identity to a higher authority; between those who give priority to life in this world and those who believe that human life is mere preparation for an existence beyond life; between those who believe in science, reason, and logic and those who believe that truth is revealed through Scripture and religious dogma. Terrorism will disrupt and destroy lives. But terrorism itself is not the greatest danger we face.

Ramesh Ponnuru (National Review Online) criticizes this on the merits, and also points out that people who adopt Reich's perspective may make more enemies than they need:

One can believe in the political "primacy of the individual," the obligation of all people to answer to God, and the wrongness of any governmental attempt to make them answer to Him, all at the same time. But if our choice is between the primacy of individuals and the primacy of God -- if, that is, we are to choose between individual human beings and God -- then the vast majority of traditional religious believers would have to choose God. . . . That would be the case for plenty of believers who are not sure what they think about abortion law, or want a higher minimum wage. All of us, for Reich, are the enemy.

Here's a tentative thought: As a nonreligious person myself, I can certainly understand some of Reich's arguments in theory. There is, in theory, a vast gulf in worldview between those who believe in a vast range of important things for which there's basically no empirical evidence -- life after death, the existence of a God who has mandated that we follow this or that book, Scriptural miracles, and so on -- and those who demand evidence before having such beliefs.

But in practice, this theoretical gulf seems to have far less impact on the sorts of things that matter in society -- respect for human rights, the maintenance of structures needed for material economic progress, and even development of science -- than one might think. Nonreligious and scientifically minded people have benefited tremendously from a system of civil liberties that was in large measure created and defended by religious people. The most advanced economy in the world exists in a country (the U.S.) that's probably the most religious of the major Western democracies. Isaac Newton and Blaise Pascal did both science and theology, and other scientists have done the same (though I understand that religious belief is considerably less common among American scientists today).

More broadly, most of the principles of liberty, democracy, economic organization, and most of the scientific knowledge that we value -- and that Robert Reich probably values as well, though he may disagree in some measure as to economic organization -- were developed in a pervasively Christian culture, one in which most people believed in allegiance to a higher authority and at least the great importance of a future life. Perhaps these principles would have been developed more effectively or quickly if the culture had been less religious or less devout, or perhaps not. But this fact should at least give us nonreligious people pause before we focus too much on the epistemological or philosophical gulf between us and the religious.

Finally, the history of the 20th century shows us that some faults that were thought by some to be religious -- fanaticism, religious intolerance, totalitarianism produced by an all-encompassing worldview -- are actually faults of humans generally. Atheist Communism has much in common with the Spanish Inquisition.

It seems to me that nonreligious people (especially in America) should be happy about this coincidence of interests and, in many ways, of views between the nonreligious and the religious. Since we're in the minority, it's good that we can make common cause with the majority -- a true "battle" with them will not be pretty. Even if the battle is defined as the nonreligious plus those whose religion is mostly spirituality and morality, with little concern about a higher power or a future life, the battle would be mighty nasty.

Now perhaps the relatively peaceful coexistence in the West of the deeply religious, the deeply secular, and the people in between is a thing of the past. Perhaps in the 21st century the real philosophical gulf that he describes must yield a battle. But I doubt it. And I particularly think that before the secular badmouth the religious too much (and vice versa) they should consider how many valuable aspects of Western Civilization were created by the deeply religious -- and how much we all might continue to benefit from the work of those with whom we strongly disagree on philosophical matters.

Tyler's post below reminded me of an observation I once heard when talking about something similar: At some point, a British Empire that included America would have become majority American. After all, the U.S. now has five times the population of the U.K., and while the immigration patterns would have been different had America remained British, I suspect that there still would have been plenty of immigration.

And unlike with India, this would have been a part of the Empire that would have been populated by people who, one way or another, would have ended up being seen as Englishmen (even if many were of other ethnic extraction). I suspect the Americans' complaints about lack of political representation would have been resolved somehow, so the extra population would have meant extra political power. It surely would have meant extra economic power; the economic and cultural center of gravity of the Empire might not have shifted as quickly to the Western Hemisphere, but such a shift would likely have happened eventually.

Moreover, the extra volume of immigration -- which would have been inevitable given America's size, the economic opportunity it represented, and the value of immigration as a means to resist encroachments from the French and the Spanish -- would likely have changed the culture of the aggregate British Empire. Perhaps, as Tyler suggests, the Empire might not have liberalized enough to embrace such a change, and the cultural change might have even undermined liberalization ("How can we give those people more of a say in Imperial councils, when they aren't even real Englishmen, but just the dregs of Europe?"). But I doubt that it could have done so for long.

One possible outcome would have been a peaceful de facto separation a century later, though with de jure rule by the monarch, as happened with Canada, Australia, New Zealand., and, less happily, South Africa But would such a separation have been acceptable to London, had there not been a precedent set with the departure of the American Colonies?

The other outcome, I suspect, would have been a truly bicontinental nation, with the capital still in London but the economic, intellectual, and cultural activity increasingly coming from America -- and the wealthy classes being increasingly ethnically mixed, with the mixture slowly leaking into the political classes as well (remember Disraeli).

Incidentally, one more consequence: A bicontinental British Empire would likely have been a much stronger player in European affairs than England alone was. Think of it as an alliance of the sort we saw in World War II, but permanent. (Naturally, of course, the added value of America would have been less in the 1800s; query, for instance, how valuable America would have been in the Napoleonic Wars, even if it had fought with Britain rather than against it.)

There doubtless would have been some friction when London called on the Americans to help in European wars, but much less than when the two were separate countries. And this suggests that Britain might have been more aggressive in its foreign policy, both in the Europe and elsewhere, with American might added to its own. As is always the case with alternate history, the potential changes quickly snowball.

"Woad trip," as a throwaway caption in Slate's review of Arthur. (I also like the title, Arthur: On the Rocks, which I take it is an allusion to the other Arthur.)

Here's the Defense Department order establishing it.

Many thanks to Gene Fidell of the National Institute of Military Justice for the pointer.

UPDATE: Marty Lederman (SCOTUSblog), who has thought a lot about the Court's recent military detention decisions, has comments.

So did Justice Scalia and Justice Kennedy, who provided two of the five votes needed to strike down the flagburning ban. On the other hand, one of the four votes to uphold the ban was Justice Stevens, who is now one of the most liberal Justices on the Court (and at the time was mostly a member of the liberal wing, alongside Justices Brennan, Marshall, and Blackmun, who were in the majority on the flagburning case).

Now maybe liberal Justice Stevens was right, and conservative Justices Scalia and Thomas were wrong on this. But it seems helpful to recognize that the flagburning-as-speech position and even the flagburning-as-protected-speech position is not just a province of those darned liberals.

For my explanation of why this position is actually correct, and why Cramer's parade of horribles is unsound, see the post below. But my point in this post is that flagburning, at least as a constitutional matter, is hardly a crisp liberal-conservative question.

Clayton Cramer e-mailed me this about the manure-spreading incident:

[I]f burning an American flag is protected freedom of expression, perhaps spreading manure [as a political protest] is too.

He was of course using it to suggest that flagburning shouldn't be protected, not that manure spreading should be.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. (It may not be oral speech, but unless one thinks that the government should have a broad right to suppress handwritten letters, because they are neither oral speech nor "press," one has to read speech more broadly than just oral speech.) Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag. A law that bans the burning of all objects in certain public places — perhaps on the grounds that they are fire hazards — would be constitutional. [*] Likewise with a law that bans the placement of manure in the middle of a street.

So there's really not much tension here between the protection given flagburning and the lack of protection given manure spreading. An evenhanded ban on burning things in a place and an evenhanded ban on spreading manure there would be constitutional. Likewise, a ban on burning the American flag and a ban on spreading manure as a protest against gay pride parades would both be unconstitutional.

[*] NOTE: Under the United States v. O'Brien test, symbolic speech might be entitled to an exemption even from a generally applicable law — a law that doesn't single out expression — when the symbolic speech is highly unlikely to cause the harm that the law drives at.

This, though, is a very narrow doctrine, under which exemption claimants almost never win. And there are plausible arguments that the doctrine should generally be rejected, at least as to behavior that isn't traditionally expressive. Justice Scalia has been the chief advocate of such arguments, but note that even he recognized in the flagburning cases that a law that punishes expressive conduct precisely because it's expressive presumptively violates the First Amendment.

The Arkansas Democrat-Gazette, July 3, reports:

Police on Friday arrested a man accused of spreading manure along the path of a gaypride parade last Sunday in Conway. . . . [The man is charged with harassment,] a Class A misdemeanor, carrying a maximum fine of $1,000 and up to a year in jail.

The Conway police, fire and street departments were compiling a list of cleanup costs and will ask City Attorney Mike Murphy to pursue restitution . . . .

On Sunday morning, parade organizers John Schenck and Robert Loyd said they found manure spread outside their house at 1605 Robinson Ave. and along the parade route. City workers cleaned the street before the parade began.

Police said a dump-truck load of manure was spread on the street about 6:30 a.m. . . . [Schenck] said the episode showed why Arkansas needed a "hate-crimes" law.

The FBI defines a hate crime as "a criminal offense committed against a person or property which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, ethnicity/national origin."

How does it show that? Manure Boy is rightly being charged with a crime — spreading manure on a public street is antisocial behavior that harms those nearby, whether paraders or not; you shouldn't be allowed to do that, as political commentary or otherwise. It's properly not a very serious crime, since spreading manure isn't that harmful; a fine and a suspended sentence is likely the right penalty.

But in any event, should the law really treat differently manure spreading aimed at a gay pride parade at a St. Patrick Day's Parade (since hate crimes laws would cover crimes motivated by the target's race and ethnicity), but not manure spreading aimed at a Veterans of Foreign Wars parade or an anti-gay parade? (I assume that the spreader here was motivated by the gay pride paraders' sexual orientation, and not just their views, but the spreader at the hypothetical anti-gay parade would likely be motivated by the anti-gay paraders' political views, not their sexual orientation.)

I generally think that hate crimes laws are not unconstitutional (the Court got this right in Wisconsin v. Mitchell (1993)), though I think that they're on balance a bad idea. But applying such laws to vandalism aimed at gay-affiliated political speech but not other political speech might indeed be unconstitutional; and even if it's not unconstitutional, it is at least especially troubling.

Before the anti-homosexuality people start seizing on this as further evidence of those dominant gays trying to oppress the rest of us, let me mention that hate crimes laws were originally most seriously pushed by groups that see themselves as defending Jews and ethnic minorities. I think those laws are just as unjustified when applied to race, ethnicity, religion, or disability as they are when applied to sexual orientation. But here it looks like gay activists are just trying to get in on the same action that other groups have gotten in the past.

I'm aware that there are plausible arguments that crimes motivated by these factors are especially harmful or especially blameworthy — but I think that on balance those laws do more harm than good (see here for a brief summary of my views). And this incident is a good example of why the law should focus on the misconduct, not the anti-gay motivation behind the misconduct.

UPDATE: My original post erroneously referred to Schenck as the person who is charged with spreading the manure -- my mistake; as the excerpt makes clear, he was the parade organizer and thus in a sense the victim, not the criminal. Very sorry; just typed the wrong name.

"Sedition" is more than just a cool song from Fiddler on the Roof ("Sedition, sedition! Sedition! Who, day and night, must counsel revolution, Stir up mobs of people, urge them to revolt? . . ."). It's also the name of a crime, and a reader asks me: Given how narrow treason is, what's up with sedition?

"Sedition" has many possible meanings, but I think the reader (and some others) have used it to refer to advocacy of revolution against the government, or advocacy of illegal conduct more generally, or even attempts to arouse hostility against the government. The most famous Sedition Act in U.S. history, the Sedition Act of 1798, was limited to seditious falsehoods (though in practice was used against seditious opinions, too), and said that:

[It shall be illegal -- on pain of up to a $2000 fine and 2 years in prison -- to write or publish] any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to

• defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute;

• or to excite against them, or either or any of them, the hatred of the good people of the United States,

• or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act,

• or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government. . . .

[The Act was to remain in force until March 3, 1801, the last day of the Presidential term in which it was enacted. Bullets added. -EV]

Take away the requirement of falsehood, and set aside the hostile designs of any foreign nation, you have a working definition of "sedition."

Actually committing physical crimes, or conspiring to commit such crimes (i.e., agreeing with specific people to commit those crimes), is still illegal. But mere advocacy of crime is generally constitutionally protected (see Brandenburg v. Ohio (1969)), unless the speech is (1) intended and (2) likely to incite (3) imminent illegal conduct. The classic example is giving a speech to an angry mob, urging them (explicitly or implicitly) to attack someone or destroy some property. Public advocacy of violent conduct at some unspecified future time, on the other hand, is not treated as advocacy of imminent conduct, and is thus constitutionally protected. And imminence seems to be read quite narrowly, as referring to conduct in a few hours or a few days at most.

Now some other kinds of related speech can be restricted under other doctrines. Threatening a particular person, for instance, is unprotected under the threat exception. Soliciting a specific crime against a specific person, especially when done privately ("Please kill my wife"), is also unprotected, though the Supreme Court has never explicitly defined the distinction between this and incitement of nonimminent conduct.

But simply advocating the propriety of illegal conduct, whether it's an illegal sit-in, illegal violence, or revolution, is constitutionally protected (again, unless it's intended to or likely to cause imminent illegal conduct, which is quite unlikely). About a decade ago, for instance, a Florida sheriff urged that Ice-T (who now plays a policeman on television) be charged with sedition because of his Cop Killer song; but that would clearly be foreclosed, even if there was evidence that Ice-T was seriously urging killing of police officers (since he wasn't intending to urge imminent killing). See Lee Sheriff Wants Sedition Charge Over "Cop Killer," Orlando Sentinel Tribune, July 7, 1992, at D6.

Is the right rule? I think it probably is. While it's tempting to say that in a democracy, people who think a law is wrong should urge that it be changed, not urge that it be violated, laws that ban advocacy of illegal conduct quickly end up punishing a lot of speech that's quite valuable. Bans limited to explicit advocacy can be easily skirted; the message "break the law" can easily be conveyed without using those words. So the government will usually, for understandable reasons, try to "close this loophole" by going after implicit advocacy as well.

But much strong condemnation of a law (e.g., "Abortionists are murderers, and the law that allows abortion and protects abortionists from righteous defenders of the unborn is wrong and contemptible") can be credibly argued to be implicit advocacy of violation. The World War I-era cases (such as U.S. v. Schenck and U.S. v. Debs) might be examples of this phenomenon.

So anyone who wants to condemn an existing law will be at the mercy of prosecutors, judges, and juries -- if they conclude that deep down inside he was really intending to advocate breaking the law, and not just condemning the law and advocating that it be changed, then he'll go to prison. And as a result many people might well be deterred from even expressing strong disagreement with a law, for fear that it will be interpreted as implicit advocacy of breaking the law.

But in any case, rightly or wrongly, under the Brandenburg rule nearly all seditious advocacy constitutionally protected.

From the Washington Post:

Indianapolis native Kerry Edwards is feeling pretty good today about his decision to immortalize his name on the Web six years ago.

On Tuesday morning, shortly after Sen. John Kerry (D-Mass.) announced that Sen. John Edwards (D-N.C.) would be his 2004 running mate, the 34-year-old bail bondsman and owner of www.kerryedwards.com said he took down the picture of his child that graced the Web site and put up a for-sale sign.

It didn't take long for the phone to ring.

"Our campaign did inquire about KerryEdwards.com, but because of the money they were asking for we took a pass," said Kerry spokesman Michael Meehan. He said Edwards wanted a five-figure payment. . . .

I'm pretty sure Kerry Edwards' actions don't violate the Anticybersquatting Consumer Protection Act. I also suspect that they don't violate Kerry's and Edwards' right of publicity, though that's a bit more up in the air, given the vagueness of that right. And when it comes time to the smell test, it seems that the domain name owner's being named Kerry Edwards, and having registered your domain in 1998, would make judges lean in the owner's direction, even though he's now trying to exploit the fact that people would go to the site thinking it's related to the campaign. So pay the man his money, folks.

An e-mail from a reader leads me to give this brief refresher on treason. The Constitution defines treason thus:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So, some ask, does this mean that anyone who helps our enemies (as the reader suggests John Kerry did with his statements during the Vietnam War) is guilty of treason, assuming the procedural requirements are satisfied?

No. The Supreme Court has held that "adhering" requires an intent to help the nation's enemies. Merely knowledge that one's actions will help the enemies isn't enough. Thus, for instance, in Haupt v. United States (1947), the Court concluded that a father's sheltering his son -- a Nazi saboteur -- isn't treason if his intention was simply to help his son (as a result of "parental solicitude"). To be treasonous, the father's actions had to be intended to aid the Nazis. Likewise, in Cramer v. United States (1945), the Court held that:

On the other hand, a citizen may take actions, which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.

There are some mid-19th century decisions that take a broader view of treason, for instance concluding that all trading with the enemy in time of war is treasonous, without regard for whether one is intending to help the enemy, or just intending to make money (which one knows will help the enemy, but which one doesn't do with the specific purpose of helping the ennemy). But the modern view is that intention, not knowledge, is necessary.

And this is indeed right, for the reasons Cramer gives. In wartime, many actions may help the enemy. Criticizing the government may help the enemy. Running as antiwar candidate may help the enemy (by emboldening the enemy's allies).

Raising prices, either on goods sold to the military or on goods to the public at large, may help the enemy. So can striking. So can retiring from a high-level job (in government or in essential civilian work), when one knows that one's replacement will be less effective. (None of these may help the enemy vastly, but treason law doesn't require vast assistance, only some assistance.) If all of these actions were treated as treasonous, then we would have a totalitarian regime during every war.

It's actually not clear whether even intentionally aiding the enemy should always be punishable treason, if it's done through speech. For instance, say that an American opinion leader thought during the Spanish-American War that the Spanish were in the right and deserved to win, and argued this intending to help the Spaniards -- and actually helping them, because this emboldened them, weakened domestic morale, and so on. This might well be constitutionally protected speech, though I think some other speech that aids the enemey would not be constitutionally protected; consider the Axis Sally broadcasts from Nazi Germany by Nazi employees (though U.S. citizens), or of course a government employee's revelations of nuclear secrets.

This is a complex issue, and I don't know where the line should be drawn. My friend and fellow lawprof Tom Bell has an interesting draft article about it, though I don't think I entirely agree with him.

But merely knowingly aiding the enemy through antiwar speech -- for instance, when one's intention is to get America out of what one thinks is a wrongheaded or unwinnable war, rather than to help the enemy -- is definitely not treason. One may still criticize it on various grounds, but not on that one.

I use Microsoft Word, and I'm generally pretty happy with it. If I'm wrong to be happy, that's fine, but I'm highly unlikely to invest the effort to switch to another word processor.

I would, however, like to be able to get the spell checker to ignore square brackets -- [ and ]. I don't want it to ignore text inside those brackets, only the brackets themselves. As blog readers may have noticed, it's standard legal practice (and I imagine standard in some other disciplines as well) to note changes in quotes using brackets, for instance, "Adher[ing] to [the United States'] enemies." I want the spell checker to treat the first word as simply "Adhering," rather than "Adher" followed by another word "ing."

Is there some way to get Word to do this? I've looked and asked, but couldn't find a good answer. Right now I'm copying the document, changing all [s and ]s in the document to empty strings, spell-checking the copy, and then making the necessary corrections to the original. I wonder, though, whether there's a simple way of avoiding this. (Switching to some supposedly better word processor doesn't qualify as a simple way, though buying a program that can quickly and easily spell-check Word files does qualify.)

If you have any suggestions, please e-mail me at volokh at law.ucla.edu.

A conversation just reminded me of a word I've always liked -- "Idiolect":

The speech of an individual, considered as a linguistic pattern unique among speakers of his or her language or dialect.

Not a good word to use, mind you, simply because of the minor detail that people won't understand what you mean. And if everyone did understand, then it wouldn't be a good word of the day. But it's still a good word to be amused by . . . .

Two years ago, Ring v. Arizona (in which Justice Scalia concurred) held that the Jury Trial Clause requires juries, not judges, to find the basic facts underlying the aggravating factors that cause the imposition of a death sentence. But what to do about people who had already been sentenced under the old scheme, and whose sentences were now being reviewed via habeas corpus?

The standard doctrine generally says that new constitutional rules aren't retroactive as to habeas cases, unless the new rule is needed to make the judicial process substantially more accurate. So does the Ring jury trial requirement qualify? In Schriro v. Summerlin, which was decided a few weeks ago, Justice Scalia (writing for the five conservatives) held that it doesn't — and here's the core of his argument:

The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so — they certainly thought juries were more independent). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishe[s]" accuracy that there is an "'impermissibly large risk'" of punishing conduct the law does not reach. The evidence is simply too equivocal to support that conclusion.

First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. . . . Members of this Court have opined that judicial sentencing may yield more consistent results because of judges' greater experience. Finally, the mixed reception that the right to jury trial has been given in other countries, though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s]" accuracy as to produce an "'impermissibly large risk'" of injustice. When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.

This is a sensible argument, and the distinction Justice Scalia draws with regard to foreign practices — not relevant to the meaning of the right, which should be decided with reference to the Framers' views and American traditions, but relevant to empirical questions, such as those that the Court's retroactivity rules raise — is a plausible one. But it's important to note that even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to draw such distinctions, and to consider foreign practices in some situations.

I think critics of some Justices' use of foreign law — especially the shrillest critics, who denounce such use as a near betrayal of the Justices' oath — should keep these distinctions, and other similar ones, in mind. Thus, for instance, the reference to foreign attitudes in the Lawrence v. Texas majority may be different from the reference to such attitudes in the Grutter race preferences case, and still other uses of foreign practices might be treated differently still.

For more on this, see here, here.

I like Linda Greenhouse a lot, and she's certainly a very experienced and knowledgeable Supreme Court reporter. Still, I noticed this inaccuracy in her end-of-Term piece Saturday:

The second of the chief justice's major opinions came in an important church-state case, Locke v. Davey. The question was whether a state that underwrites college scholarships for secular study must also subsidize students who want to study for the ministry. The argument for the religious subsidies built on Chief Justice Rehnquist's opinion for the court two years ago in a school voucher case from Ohio, holding that it did not violate the Constitution for states to give parents vouchers for religious school tuition as part of a general "school choice" plan.

As a practical matter, the future of the school-choice movement depended on the answer to the question Locke v. Davey brought to the court: if vouchers were permissible, were they also constitutionally required? . . .

If that were really the question in Locke v. Davey, it would be quite remarkable -- I know of no Supreme Court or federal appellate opinion that has ever suggested that vouchers were constitutionally required. Clearly a state is constitutionally entitled to subsidize only public schools. (There are arguments that the state shouldn't be entitled to monpolize publicly funded education this way, but they are clearly losing arguments under today's doctrine, and likely wouldn't draw a single vote on any federal court.)

The question in Locke was different -- given that equal treatment of religious education and secular private education is permissible, is such equal treatment also constitutionally required? Davey's claim wasn't that vouchers were constitutionally required -- it's that once a voucher is given for a wide range of secular private education, religious private education couldn't be treated any worse.

This question is much closer, which is why the Ninth Circuit accepted this claim, as did two dissenters on the Court, in my view rightly. A careful reader might understand that this is the real issue, notwithstanding the way the article framed the question (especially given the paragraph that comes before). But I suspect that an average reader, who is breezing through the piece, would take the question quite literally.

I'm also not wild about framing the issue as an "argument for the religious subsidies." We probably wouldn't call an argument for evenhandedly including black applicants alongside white, Asian, Hispanic, and other applicants in some subsidy program -- with no distinction based on race -- an "argument for subsidies for blacks." We'd call it "an argument for equal treatment for blacks." Still, this is a somewhat closer matter; the framing of the question in the following paragraph is more clearly inapt.

So that's just another reminder of the need for caution in reading even work from experienced, respected writers: Mistakes happen, especially when one is writing with a short deadline, and with a word limit that sometimes yields imprecise shorthand. Even when an expert is writing (whether the expert is a Supreme Court journalist or a law professor), the reader should always be careful and skeptical. Unfortunately, many readers, especially ones who are quickly skimming the article, aren't likely to invest the effort into such skepticism -- and a writer's error can become an error in the thinking of hundreds of thousands.