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Wednesday, July 28, 2004
Obama vs the rest
A number of commentators have linked this passage from Barack Obama's speech:
t's what allows us to pursue our individual dreams, yet still come together as a single American family. "E pluribus unum." Out of many, one.
Now even as we speak, there are those who are preparing to divide us, the spin masters and negative ad peddlers who embrace the politics of anything goes. Well, I say to them tonight, there's not a liberal America and a conservative America — there is the United States of America. There's not a black America and white America and Latino America and Asian America — there is the United States of America.
The pundits, the pundits like to slice and dice our country into red states and blue states; red states for Republicans, blue states for Democrats. But I've got news for them, too. We worship an awesome God in the blue states, and we don't like federal agents poking around our libraries in the red states. We coach Little League in the blue states and have gay friends in the red states. There are patriots who opposed the war in Iraq and patriots who supported it. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.
with a number of other themes from the convention: Bill Clinton saying that Republicans "need" Americans to be divided and Democrats don't; Howard Dean's call to "take back" America; John Edwards' claim that there are now two Americas but there can be one; and Kerry's "Let America Be America Again."
I don't see it. Obama's statements seem to me different in kind.
First, and most importantly, this portion of Obama's speech was symmetrical with respect to partisan, cultural, and religious divides. It's "pundits" who seek to describe us as divided. But in fact, we're all red and we're all blue. Supporting the war, worshipping God, and playing Little League are symmetrical with not liking the Patriot Act, opposing the war, and having gay friends. That's very different from the "Those nasty conservatives are divisive, unlike us nice inclusive liberals" theme that's kept popping up.
Relatedly, there's something offensive in the "Take America back"/ "Let America be America again" stuff. It's something I fully expect to keep hearing; it's something I remember loathing about the first Clinton inauguration. It's the necessary implication that Republicans, and Republican government, aren't really American, that Democratic rule is not only preferable (of course Democrats think that) but the natural order of things, an order that must be restored (notice the restoration theme in both "take back" and "be America again"). Obama didn't imply any of that, either.
Finally, unlike Edwards, Obama's not imagining one America as some future state of affairs to be accomplished with a Democratic victory. It's a present state of affairs-- we are, already, genuinely united.
A fair criticism of Obama's speech might be that it's too nice, too apple-pie, to really stake out much of a position on anything. But you can't criticize it, the way you can the rest, for communicating the message that "we'd all be united, if it weren't for those nasty un-American Republicans." And I find there to be something genuinely touching in his version, and something really grating in theirs.
[disclosure: Obama is, of course, my faculty colleague at the University of Chicago in addition to being my district's State Senator.]
Don't blame the lawyers:
Someone e-mailed me about the This Song Is My Song controversy, pointing to this as the latest example of unethical lawyers undermining American creativity (and, more broadly, economic development) through excessive litigation.
I don't think that's so. As I mentioned in my original post, the This Land Is My Land copyright owners have a decent case against the JibJab people -- in fact, I think they probably have the better legal argument, though it's hard to tell for sure. There's nothing unethical about a property owner asserting his property rights, or the property owner's lawyer advising the owner to do so. There are certainly some lawyers who do some genuinely unethical things; this just isn't it.
If you want someone to blame, blame the law, not the lawyer. The law may be too broad; or it may be so vague that it ends up effectively quite broad, since lots of speakers can be plausibly threatened with litigation. But it's not the copyright owner's fault, or the copyright owner's lawyers' fault.
Ah, some say, but the law is so broad because the lawyers made it that way. And, yes, it's true that the law is generally made by lawyers -- by judges, by legislators (who are disproportionately lawyers), by legislators' assistants (who are probably lawyers), and by lawyer-lobbyists. Yes, and what of it?
First, this is a tiny fraction of all lawyers, so don't blame the whole profession for what some of them do. Second, these people are also just doing the jobs they're assigned to do in our legal system, and often doing them quite honorably. Lobbyists may quite ethically urge their proposed legal rules to legislators. The legislators' assistants are probably following their bosses' instructions, and to the extent they have some flexibility, they're likely using it to implement what they think is sound public policy. Likewise, judges are either interpreting the statute, or creating what they think are good rules. (It is indeed often judges' job to create what they think are good rules, either as a matter of developing the common law, or of interpreting a vague statute -- the fair use doctrine was largely developed by judges, and the current statutory fair use provision, 17 U.S.C. sec. 107, specifically authorizes judges to develop fair use law further.)
Now I do think that this particular subset of lawyers often get things wrong. In particular, I think they often reject bright-line rules because those rules are overinclusive in some situations and underinclusive in others; but in their quest for theoretically perfect justice, they end up enacting or adopting vague rules that leave people with little practical guidance about what is or is not safe to do.
But at most what we have here is a few special lawyers-by-training -- many of whom are no longer even lawyers in private service, but are lawmakers of one sort or another -- making unsound decisions. We do not have some general ethical failing on the part of the legal profession as a whole.
And the remedy to the problem isn't to try to make lawyers more ethical -- it's to try to make the laws better (hard as that may be).
Lithwick on Democrats and Judges:
Dahlia Lithwick has an article up on Slate asking why Democratic candidates are not talking more about the importance of who appoints judges. Lithwick seems genuinely puzzled. She reports on various theories floated at a recent American Constitution Society panel that included several distinguished legal scholars. The theories ranged from the observation that most people just don't care about judges to the idea that Republicans have done a better job creating a coherent set of jurisprudential principles. I am far from my area of expertise here, but I wonder if Lithwick and the panelists have missed a more obvious reason. It seems to me that in the majority of hot-button cases decided by the Supreme Court after Bush v. Gore, the Court has ruled in ways that a majority of Democratic voters prefer. Most notably, the Court has allowed affirmative action, invalidated sodomy laws, rejected the Bush Administration's views on detention in terrorism cases, and found jurisdiction over Guantanamo. Given these decisions, most Democratic politicians probably see it as a challenge to run against the courts.
How I Learned to Stop Worrying and Love GM Food:
The National Academy of Sciences has issued yet another report reaffirming the basic scientific consensus about genetically engineered food: It's safe. The NAS has (once again) concluded that what matters is the product, not how it was produced. This means that for regulatory purposes it should be irrelevant whether a given food product was produced through "traditional" cross-breeding of the sort practiced for centuries or through the advanced rDNA techniques recently developed in scientific labs. All such techniques involve genetic modification of the underlying plant or animal, and there is no scientific basis for deeming one "less safe" than any other. What matters are the resulting characteristics (e.g., whether the food product contains proteins that are likely to provoke allergic reactions, etc.). Of note, to date there is not a single documented and verified case of an individual getting sick or otherwise suffering harm from a genetically engineered food product. About products produced by "traditional" cross-breeding techniques, however, we can say no such thing.
"First 'black' drug nears approval":
A heart drug being tested in black patients is on course to become the first medicine approved for use in a specific ethnic group, challenging those scientists who believe that race is a bad basis for prescriptions. . . .
[The drug] revives controversy about whether, and how, race should be used to prescribe medicines. In the clinic, for example, doctors will have to work out who is classed as African American in a racially mixed population. "It really becomes problematic," says Sandra Soo-Jin Lee, an anthropologist who studies race in science at Stanford University, California. . . .
Doctors have long known that different ethnic populations can have different susceptibility to diseases or react differently to drugs. Drug labels for the common heart drugs called ACE inhibitors note that they may be less effective in black people. . . .
I like the dueling quotes (though I have no idea how fair they are): (1) "I still think skin pigment is a lousy predictor of heart function." (2) "We hold the trump card: it works."
Thanks to GeekPress for the pointer, which also includes Paul Hsieh's commentary on the issue (Paul is a physician).
New Article of Mine Up on SSRN:
I have a new law review article up on SSRN, entitled The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. It is forthcoming in the Michigan Law Review, and likely will be published in September or October. (I have had an early version of the abstract up for some time, but now you can download the draft.) Here's the new abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.
The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.
Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.
Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.
As always, I would be delighted to hear any thoughts or comments. The article will be published along with responses to it from Peter Swire of Ohio State law and Sherry Colb of Rutgers-Newark law; a draft of Peter's response has been up on SSRN for a while and can be found here. I have also authored a brief reply to Swire and Colb that will be published along with the responses and the lead article.
The Patriot Act and Criminal Law:
Alex Tabarrok responds to my analysis of his Patriot Act criticism. Alex concludes that I have committed "the lawyer's vice," namely, "to miss the forest for trees." He writes: The point is that laws passed for one purpose are often used for other purposes not originally intended (RICO, anyone?). . . . In this case, the Patriot Act and the general increased willingness to defer to law enforcement have not to my knowledge led to many arrests of terrorists but have been used for all manner of other purposes.
I think this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive. I'm not sure if any supporter of the Patriot Act has ever claimed that the Patriot Act has no application in the field of criminal law. If they have, they were wrong. As I have written elsewhere, many of the provisions enacted into law in the Patriot Act were proposals relating to criminal law that had been considered and debated in Congress since the Clinton Administration. Many of the criminal law provisions are dual-use: they can be used in terrorism investigations, but can also be used in routine criminal investigations. Because there are lots more criminals than terrorists, and criminal cases tend to be much more public than terrorism investigations, it shouldn't be suprising that we hear more about the Patriot Act in criminal cases than in terrorism cases. Supporters of the Patriot Act have not tried to hide the fact that many of the sections relate to criminal law. Indeed, in the DOJ's recent report on cases in which the Patriot Act authorities were used, some related to terrorism but many did not. I happen to think that many of the sections of the Patriot Act are good ideas, when addressed on the merits. A few may have gone too far and should be tweaked, but most were good ideas that are neutral on civil liberties. (In this assessment I believe I am joined by Anthony Romero of the ACLU, who has stated that "much of the Patriot Act is neutral legislation for civil liberties," but that "it contains about a dozen provisions that simply go too far." ) But to the extent that provisions of the Patriot Act are being used in criminal investigations, that's not only true but quite by design.
Trade news
A very reassuring post from Matthew Yglesias on Laura Tyson's convention discussion of Kerry on trade. Relatedly, see his post at the Prospect's convention blog ("We still need to know which advisors will have Kerry's ear if he gets into the White House. So far, most indications I've seen indicate that the free traders have the upper hand.") and Ryan Lizza's "Rubinomics Redux" post at the TNR blog. All sounds like pretty strikingly good news. (No, I don't expect Kerry to be perfect on trade. But he does, at the moment, seem to get that Clinton's way is better than Gephardt's-- or Bush's.)
JibJab SoSue:
The pretty funny Bush/Kerry parody with the "This Land Is Your Land"-based lyrics (from JibJab.com) has drawn a complaint from the owners of the "This Land Is Your Land" copyright.
The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.
Week in the Life of a Defense Attorney:
If you're a law student interested in practicing criminal law, you should be reading Ken Lammers' CrimLaw blog. In particular, read the regular "Week in the Life of a Criminal Defense Attorney" posts, where Ken goes day-by-day through his week. There's a new one up today; check it out.
Tuesday, July 27, 2004
Deconstructing claims about the Patriot Act:
Over at Marginal Revolution, Alex Tabarrok has a post suggesting that the Patriot Act is a bad law because it has been used to do some dumb things. Here is the post, which was recently Instalinked:
Yeah, I feel much safer now
The USA Patriot Act has so far been used to fine PayPal $10 million dollars in an effort to crack down on internet gambling, it's been used to intimidate a New York artist's collective, and most recently to shut down a Stargate fan site.
As an occasional Patriot Act rumor debunker — tough work, but someone's got to do it — I thought I would check out Tabarrok's claims and see which if any of the claims held up. The result: 1 out of 3, at least by my standards. Unless I'm missing something, only one of the three claims is a fair statement supported by the facts. Let's start with the first claim, that the Patriot Act was used "to fine PayPal $10 million dollars in an effort to crack down on internet gambling." This is true, as detailed in this story. Specifically, the Patriot Act rewrote a criminal statute codified at 18 U.S.C. 1960, primarily in an effort to disrupt terrorist financing schemes. The new version of the law makes it a crime to operate a "money transmitting businesses," when the "transmission of funds . . . are known to the defendant to have been . . . intended to be used . . to promote or support unlawful activity." Because some kinds of online gambling are illegal, and PayPal apparently did business with certain illegal gambling sites, PayPal was fined. (Why fine PayPal, you ask? From the perspective of law enforcement, because the sites themselves are offshore and therefore out of reach. Basically, the government used the amended law to block PayPal from aiding illegal conduct.) Let's turn to the next claim, that the Patriot Act "has been used to intimidate a New York artist's collective." This one is a stretch. According to the story that Alex links to, the FBI opened a bioterrism investigation after an investigation of a person who fell unconscious led to the discovery of lots of biology equipment in an art professor's home. Evidently, the FBI suspected that the equipment might be part of a biological weapons lab, and opened an investigation. I gather that the alleged "intimidation" is that the grand jury issued subpoenas ordering three artists to testify, and the artists reported that they were very intimidated by the subpoenas (understandably, I might add). What's the connection to the Patriot Act? The Patriot Act expanded the bioliogical weapons statute; if the biology equipment had been a bioweapons lab and not an art project, possession of the bioweapons lab would have violated the Patriot Act. Was the Patriot Act "used to intimidate" anyone here? I don't think that's a fair conclusion. First, it seems that the law enforcement officers opened an investigation in good faith; second, the officers could have used another criminal statute as the predicate offense to open an investigation if the Patriot Act had not been passed. Alex's third claim is that the Patriot Act was used "to shut down a Stargate fan site." As best I can tell, this is simply false. Alex links to this story, but the story tells us that a defendant who ran a website was charged with criminal copyright violations. These charges have nothing to do with the Patriot Act; nothing in the Patriot Act was used to shut anything down. As best I can tell, the only alleged connection to the Patriot Act is investigative. The site claims that in the course of investigating the defendant for copyright violations, "the FBI invoked a provision of the USA Patriot Act to obtain financial records from his ISP." It's not clear what this means, but it may refer to amendments to a 1986 law, 18 U.S.C. 2703, that clarified existing law on the scope of what information government officials can subpoena from ISPs. It's hard to tell. Either way, however, the power to obtain financial records from an ISP is as old as ISPs; it isn't a power created by the Patriot Act. So, at least as I see it: (1) it is true that a provision in the Patriot Act was used to crack down on Internet gambling, leading to a civil settlement; (2) it is not fair to say that the Patriot Act was used to intimidate a group of artists; and (3) the Patriot Act was not used to shut down a fan site.
Jurisdiction-stripping:
Several people e-mailed me to ask whether HR 3133, which was just passed by the House, is constitutional. The bill would provide that:
No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.
Legal scholars have spent decades and volumes discussing the question of when Congress may strip federal courts of jurisdiction over certain matters. I'm not an expert on the subject, so I was reluctant to weigh in; and a brief conversation with my colleague Gary Rowe, who does know the literature, reinforced my reluctance. So I can offer only a few observations:
As I noted here, such a bill may do more harm than good even from its proponents' viewpoint:
Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.
What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution -- such as the Goodridge gay marriage decision in the Massachusetts -- will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)
True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.
Such a jurisdiction-stripping statute would nonetheless probably be constitutional, because of article III, section 2, clause 2 of the Constitution (emphasis added):
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
(The "state shall be party" original jurisdiction proviso won't help, because under another provision of article III, coupled with the Eleventh Amendment and certain longstanding court interpretations, lawsuits by individuals against states basically aren't covered under the Court's original jurisdiction.)
People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars. However, as I mentioned, some highly respected scholars argue otherwise; and Gary very kindly let me put on the Web his summary of the debate that he distributes to his students. It's aimed at law students, and refers to other readings that they were assigned, so it will likely be quite cryptic; but I pass it along in case some of you find it interesting.
Please note that Gary is doing me a favor by letting me distribute this; please don't bother him with any questions, counterarguments, or corrections. Please also note that, as I said, I myself am not an expert on the subject, and my view in item 2 above is based on a casual analysis, not any serious learning on the matter. I don't expect to blog much more on the subject, but I thought I'd pass along what I had.
Extortion and the Internet:
Newsweek has an interesting story about extortionists threatening to knock down online gambling web sites unless they pay the extortionists a fee to "fix the problem." (Hat Tip: Vice Squad)
This is a small part of a bigger trend; Internet extortion is an international growth business. Thanks to the Internet, anyone located anywhere in the world can hack into or threaten to take down an Internet site. It is generally quite difficult to trace back the trail of electronic bread crumbs back to find the bad guy. For a private company, it is nearly impossible. There are even fewer options if the bad guy is located in a country without a functioning legal system. The Internet knows no borders, but the legal system does. From the perspective of law enforcement, an extortionist located in a country where the local police will not cooperate with them and won't comply with extradition requests may as well be on Mars.
All of which means that an extortionist with some basic computer skills and an Internet connection can cause a lot of havoc.
UPDATE: Reader Eric Rescorla points out that these days you can even buy a DDOS attack online from Russian hackers. And who says that Russia hasn't embraced the free market?
Canada firearms registry story:
This isn't really news, but I just ran across a seemingly pretty impartial article on this in an impartial magazine (Baseline, which appears to be a business magazine) about this. The subhead (available in the PDF version, which requires registration):
A national computerized firearm registry in Canada was supposed to cost taxpayers $2 million. Instead, it has held them up for more than $1 billion.
The article explains some of the things that went wrong; it doesn't take a stand on whether the registry has helped reduce crime. It does note that gun deaths and gun murders have fallen since 1989, but for many reasons that says little about the effectiveness of the firearms registry (one reason of the many is that the registry only got going in the late 1990s). But it should be a warning that, regardless of whether we think that this sort of project might in principle be valuable, there are huge potential costs with it — and the costs in the U.S., which has probably 25 times the guns that Canada has, would likely be even greater.
Spam is annoying,
but so is Spam-blocking software that saves hassle for the recipient at the expense of burdening the sender -- especially when the recipient has asked the sender to do him a favor. I just tried to reply to a message that someone at a prominent foundation sent me, asking me for free advice related to one of their projects; the message got bounced as supposed Spam, and I had to call the person by phone (spending the California taxpayer's money, as well as my time) to get a hotmail address to which I could send it. I understand why people set up such software. I just think they should take into account the costs they're imposing on others, which is why I try to be polite but noticeably annoyed when I call the person about it (hoping that this will lead to an internal complaint by the person to the technical people who're in charge of this stuff).
And if you're going to send me a message asking for a reply, and my reply gets bounced by your spam-blocking software, please don't expect me to take steps to get it through (even relatively simple ones).
NPR's Scott Simon on Michael Moore:
Michael Moore has won the Palme d'Or at the Cannes Film Festival, and may win an Oscar for the kind of work that got Stephen Glass, Jayson Blair, and Jack [Kelley] fired. . . .
Some journalists and critics have acted as if his wrenching of facts is no more serious than a movie continuity problem, like showing a 1963 Chevy in 1956 Santa Monica. . . .
In the New York Times, Paul Krugman wrote that, "Viewers may come away from Moore's movie believing some things that probably aren't true," and that he "uses association and innuendo to create false impressions." Try to imagine those phrases on a marquee. But that is his rave review! He lauds "Fahrenheit 9/11" for its "appeal to working-class Americans." Do we really want to believe that only innuendo, untruths, and conspiracy theories can reach working-class Americans? . . .
Read the whole thing. Thanks to Dan Gifford for the pointer.
UPDATE: Krugman's piece is available for free here.
Max Boot on the CIA:
I'm not sure whether his point is right, but it seems quite plausible, and worth passing along. The whole piece is here, but here's the opening paragraph:
If you want to know what's wrong with the CIA -- and these days who doesn't? -- start with the fact that it's almost 60 years old. How many 60-year-olds do you know who take insane risks, rethink cherished shibboleths and produce brilliant flashes of insight? That is what's required to win the war on Islamist terror.
But, like many other prosperous geezers, the CIA would prefer to hit the links and avoid uncouth places where nobody has heard of Metamucil.
Don't get me wrong. There are plenty of bright, energetic people at the CIA (I've met some of them), but, as the reports of the 9/11 commission and the Senate Intelligence Committee attest, they work in a sclerotic institution. . . .
Prediction:
Ramesh Ponnuru e-mails, referring to Slate's Kerryisms:
What will Slate's take on the speech Thursday night be? "I accept your nomination. Vote for me for president."
Sounds like par for the course for that column . . . . And, yes, that is what a politician should say if his only goal were to say the minimum possible, rather than do superfluous things like articulating his positions or winning votes.
Libertarianism and Foreign Policy (long):
In my post Libertartarians on War, I raise the question of what Libertarianism as a political philosophy tells us, if anything, about foreign policy apart from the side constraint that individual rights should be respected when pursuing any foreign policy. I noted that my intent was not to debate the war in Iraq but to consider whether there were any Libertarian principles to apply to this or any decision to wage war. David Beito writes in response:
I may not have expressed myself adequately in my earlier response to you. As I stated, I am a "defenseist" (to steal a word used by Douglas Rasmussen) in foreign policy, a doctrine that flows, in my view, logically from libertarian ideals. In other words, I believe that intervention is justified *if* the U.S. is responding to an attack or an imminent threat can be shown. An imminent threat would include deployment of troops by an enemy for an attack.
For this reason, I supported the Afghan war since it was a response to a direct attack. I tried to get your views on the Iraq war because I do not believe that it qualifies under either of these standards e.g. Saddam did not attack us nor did he present an imminent threat (Dubya appears to agree with me!). It was only in this sense that I was trying to draw you into an Iraq debate.
I agree that it is important for us to nail down better guidelines on foreign policy that are consistent with libertarian principles. Otherwise, we will [have] no good way to judge politicians who take us to war for any and all reasons. I believe that defenseism best approximates the proper standard. This is very helpful. I could view myself as a "defenseist" in foreign policy, which would explain why I opposed and still oppose U.S. military action in Haiti, Panama, Somalia, Bosnia and would oppose it in the Sudan. A humanitarian crisis is not enough by itself, in my view, to warrant the use of the US military as a matter of foreign policy—including the awful slaughter and repression of Saddam's people.
My first question, though, is WHY defenseism is a Libertarian principle of foreign policy? The most obvious possible reason is that this policy is consistent with the natural right of personal self defense (a fundamental right I defend in The Structure of Liberty: Justice and the Rule of Law). By this argument, none of the individuals who would be engaged initiating such a war would be violating the rights of others (by this decision) because they were acting to protect the rights of themselves and the citizenry of their country. So far so good.
But would the U.S. Army been acting unjustly on Libertarian grounds it it goes to the aid of innocent civilians in Somalia, the Sudan, or Iraq? I do not see why. If these people are indeed the victim of horrible rights violations a solder regardless of whether his uniform is American or Iraqi would be justified in going to the defense of the victim according to Libertarian first principles. So if "defensism" is a proper principle of foreign policy, it does not appear to follow from Libertarian first principle, since either going to the assistance of the innocent and not going to her assistance is an equally justified act. (This is apart, of course, from the moral duty one may have to help the innocent.)
Whence comes the intuition that defenseism is "a doctrine that flows, in [David's] view, logically from libertarian ideals"? It comes, I think from equating governments or states with individuals. Just as individuals may only act in self defense, then so should governments, whether or not this claim is true, it does not flow automatically from a Libertarian theory of individual rights. In the example I gave, the U.S. soldier would not be defending the US, but he would be defending a foreign victim of a rights violation and would not, on libertarian grounds be acting unjustly. If defenseism is a good principle of foreign policy, therefore, it must be for reasons other than Libertarian political theory. For example, it could be justified on prudential grounds or on constitutional grounds.
But this is just the first problem with claiming a defenseist foreign policy is entailed by libertarian political theory. The second problem is David's invocation of the criterion of "imminent threat." David contends that military action is justified only "when the U.S. is responding to an attack or an imminent threat can be shown. An imminent threat would include deployment of troops by an enemy for an attack." The obvious source of this intuition is that requirement of "imminence" is normally a part of the rule of law governing the natural right of self-defense by individuals. But this doctrinal requirement arises, I think, because of problems of knowledge.
A threat is a communication of a intent or willingness and ability to violate the right of another. When this information is communicated, a victim need not wait until the blow is struck or the bullet is fired. Threatening a rights violation is itself a rights violation that justifies not only self-defense but also restitution. We adopt a rule of law requiring, for example, an overt act representing an imminent use of force both because we otherwise lack knowledge of a person's hidden intentions and because intentions alone are not enough to justify self-defense. We all have intentions, some of which are illicit, we never act upon. For this reason, and because we cannot ordinarily know what is in the minds of other people, mal-intent does not violated the rights of others the way a communicated threat does. And to be sufficiently sure that a rights violation is being threatened, ordinarily a threat requires that we wait until an overt threatening act is performed.
But this rule of law doctrine of "imminent threat" is not a necessary prerequisite of justified self defense in all cases. As I discuss in The Structure of Liberty, what is needed to justify self-defense in principle is a communication of intent to invade rights in a context that suggests its seriousness. A communication constitutes a threat that violates the rights of another if it puts him in reasonable fear of being the victim of a battery or worse.
The example I give in SOL is of someone, let's say it is me, who takes a full page advertisement in The New York Times announcing my intention to murder, say, David Beito at some time within the next 7 days. Assuming it is not obviously a joke, and that I apparently have the means to carry out my threat, would David have to wait until I came around to his house and made an overt threatening act, which ordinarily is required by the law of self defense? Given the nature of this "standing threat," need there also be a showing of imminence?
I think under these special circumstances, David should not have to wait until I chose a time and place convenient for my attack but could seek me out to preemptively defend himself against me at a time and place of his convenience. In SOL I call this "extended self-defense." What makes this hypothetical unusual and unrealistic is the unambiguously objective manifestation of intent in the advertisement. The advertisement is what constitutes the threat that is the necessary condition of self defense and no further overt act is required. Under these circumstances David is entitled, in my view, to "preempt" my attack before I ever perform an act that can be deemed "imminent" (like produce a weapon and point it in his direction). But this is so abnormal a hypothetical (criminals do not normally advertise their intentions) that it does not undermine the normal importance of imminence or to the law of self defense.
But advertisements and imminent acts (like massing armies on borders) are not the only ways to communicate a threat. So would speeches coupled with less normally obvious behavior. If the content of these other communications are sufficiently clear, then self defense would be warranted even in the absence of an overt act that constitutes an imminent threat. So "imminence" may not be a requirement of even a defenseist foreign policy (assuming that a defensivist foreign policy is logically entailed by libertarianism, which I doubt). What is required is a threat.
In the case of the government of nation states, however, there is another principle that has long governed the justificiation of war, and that is when nongovernmental organizations (NGOs) are operating within the borders of a nation state, and these NGOs, but not the host state, constitute a threat to others. Upon fair warning, if a nation state does not stop these NGOs from engaging in their activities, the government of the threatened people, or another asked to aid them, would be justified in taking military action against the NGO within the borders of another, and even against the host government itself if it gets in the way. Of course, if the host government is affirmatively aiding these NGOs (as opposed to passively acquescing to its presence) it may be targeted even if its armies do not themselves constitute an imminent threat--as in Afghanistan which David finds to have been a just war on defenseist grounds.
It is no violation of the "sovereignty" of the host country because sovereignty presupposes physical control over its territory and, it matters not whether its lack of control is on purpose or because the host government is too weak. By failing to effectively use its sovereign powers to eliminate the danger to others, these others may act defensively to fight and defeat the NGO within the host's border. This is entirely justified defense, though the host government may not itself pose any threat whatsoever to the people of the other state.
None of this however, is to argue that a military invasion is always (or ever) a good foreign policy. Many libertarians are "noninterventionists" who seem to oppose almost any military invasion outside the territory of the US on the ground that the unintended consequences of such actions are likely to be terrible, as indeed they often are.
My original point was simply that this type of noninterventionism, whether right or wrong, does not follow from Libertarian principles as some of its adherents apparently assume. It is more a pragmatic judgment of the sorts of rightful actions that will or will not yield good consequences. This judgment could lead to certain principles of foreign policy, but these should not be confused with Libertarian first principles. In addition, while I respect those who hold to this position, it tends to ignore the unintended consequences of nonaction, which can be just as harmful. Unintended consequences is a concept that, logically, runs in both directions.
Whether the war in Iraq was justified is again a subject I am trying to avoid. Assessing this issue would require, in addition, analysis of the status of American-Iraq relations in the wake of the cease fire after the first Gulf War that was a response to an Iraqi invasion, and whether the repeated violation of that cease fire by the Iraqi goverment warranted a resumption of hostilities if the US so chose. Iraq may or may not have harbored Al Qaeda the way Afghanistan was. Invasion may have been justified on entirely different grounds, but even if shown to exist, these grounds do not establish whether the policy of war in Iraq, even if justified, was a good strategy or prudent all things considered. I think it was, but I know other Libertarians whose judgment I respect who strongly disagree. My point is that Libertarian principles have little, if anything, to offer on this question. If defensism is to be warranted on any sort of Libertarian grounds, it must be prudentially as a doctrine that indirectly leads better to the protection of rights than alternative policies (for example, by reducing the chances that the rights of Americans will be oppressed by military establishment or the restrictions on liberty that often accompany a war).
Finally let me hasten to add that, though I have thought a lot about Iraq as a citizen, with these posts I have only just begun to think about the relationship of Libertarianism with foreign policy. I am completely open to being persuaded that this analysis is cpmpletely wrong (as well as to encouragement that I am on the right track). Indeed, I had hoped that, by raising the issue, someone else would to the heavily lifting and save me the trouble. So comments and responses are appreciated. I will post them as I am able (given my travels) and if they seem to be useful contributions.
[I am composing this using a German keyboard, so please forgive any strange spelling typos, or more than normal for me.]
Death and DVDs:
GeekPress reports:
Prosecutors in Alaska have filed the first-ever charge of second-degree murder because the suspect was allegedly watching a DVD while driving his vehicle instead of watching the road, which then led to his striking and killing the driver of another vehicle. The movie he is accused of watching is "Road Trip".
The post contains a link to the newspaper article. The most plausible theory for the prosecution is that watching a DVD while driving is "knowingly engag[ing] in conduct showing extreme indifference to human life."
It's a fearsome weapon of war against the capitalists and a valuable trademark:
There really should be nothing inherently odd or amusing about this (hey, business is business) -- and yet somehow there is:
"We see a great number of products which are named after Kalashnikov, my name," said Mikhail Kalashnikov, the weapon's original designer. "They are buying Kalashnikovs from other countries."
Thanks to Dan Gifford for the pointer.
Fun Tax Court opinion:
Yes, such a thing is possible, even from a non-tax-lawyer's perspective -- see Calarco v. Commissioner, written by my friend and fellow Kozinski clerk (though he clerked in the mid-80s) Judge Mark Holmes. My favorite item was an excerpt from Gulliver's Travels, which I read many years ago but had long forgotten:
The highest tax was upon men who are the greatest favourites of the other sex, and the assessment according to the number and natures of the favours they have received; for which they are allowed to be their own vouchers. . . . The women were proposed to be taxed according to their beauty, and skill in dressing; wherein they had the same privilege with the men, to be determined by their
own judgment.
More on Spiderman and Jews:
Todd Seavey writes:
Spider-Man 2 co-writer (and Pulitzer winner) Michael Chabon has certainly written about Jew/superhero parallels before, in The Amazing Adventures of Kavalier and Clay, while director/plotter for the films Sam Raimi was raised Orthodox Jewish . . . .
Jesse Lansner also adds (though naturally a superhero's being created by a Jew doesn't mean that the superhero is himself Jewish):
[M]any [comic book superheroes] were created by Jewish writers. Superman was created by Jerry Siegel and Joe Shuster; Batman by Bob Kane (nee Kahn). All three were Jewish. Almost every Marvel Comics hero was created by Stan Lee and Jack Kirby, who were born Stanley Lieber and Jacob Kurtzburg.
It's a conspiracy, I tell ya . . . .
Copyright and forwarding of messages posted to discussion lists:
Someone asked me -- is it a copyright infringement to forward off-list (say, to some friends, or to another discussion list) a message that has been posted to a large (say, 200-member) and open-for-subscription discussion list? Here's a quick analysis.
E-mail, like nearly all writing (including things written on a blackboard or a cocktail napkin, if they're more than just a few words), is automatically copyrighted. You don't need to put a copyright notice on it, and you don't need to register it anywhere. If someone asks you "What do I need to do copyright this?" (where "this" is something of even modest complexity, beyond just a few squiggles or several words), the answer is "Write it down." But there are two ways in which forwarding or other copying of a messages may nonetheless not be infringement. First is if the writer conveys an implied license to make copies -- if the writer acts in a way that a reasonable reader would interpret as voluntarily permitting others to copy.
A classic example from the real world is if someone sends a letter to the editor of a newspaper that starts with "Dear Editor:." Is the letter protected by copyright? Sure, it's written down. Would publishing it be copying? You bet. But a reasonable publisher would interpret the writer's conduct as authorizing (here, even requesting) that the letter be copied. Likewise, copying a sender's message when replying to the whole list is almost certainly implicitly licensed; the same is true of copying the message to a separate folder on your computer, or printing it out for your physical files.
I suspect that forwarding off-list is generally not implicitly licensed, because there's not the same kind of well-established understanding that this is fine -- but it's impossible to tell for sure, since this doctrine is quite vague, and since to my knowledge there've been no published court opinions applying it in this context (nearly no-one sues over such things).
Note that implied licenses can always be disclaimed by a prominent notation on the writer's part. A letter to an editor that says "Dear Editor: This is not for publication, but I wanted to tell you that . . ." does not implicitly license the editor to publish the letter, since a reasonable editor wouldn't think that the author agrees to have the letter be published. Likewise with an e-mail that starts with "NOT FOR FORWARDING." (Fair use claims, see below, can still be made despite such a notation, but not implied license claims). Second, forwarding (to an off-list friend or to another list) a message posted on a discussion list may well be a fair use. This is especially so if the purpose of the copying is commentary or criticism of the message ("Look what a horrible argument I saw being made on a list I'm on : . . . Here's why it's horrible [point-by-point rebuttal follows]."), but it's probably even so if the purpose is simply to pass along something that's interesting.
The forwarding is noncommercial; the item has probably been published, because it has been distributed to a large group of people; the item is probably mostly factual rather than creative writing (unless it's a list for posting one's short stories or some such); and, most importantly, there's virtually no effect on the value of or market for the work, since there's no market for the work in the first place. If one is forwarding the entire e-mail, that cuts against fair use; but on balance, I think there'd be a credible fair use claim in any event. Again, though, since there've been no reported cases on the subject, it's impossible to tell whether such off-list forwarding would be fair use. Note, though, that if you change the facts slightly, both these analyses may end up being different. If the list is small, then the post might be seen as unpublished, and the fair use claim would be much weaker. If the item is reprinted or reposted in a commercial place (such as a newspaper), then the fair use claim would again be weaker. My analysis above is limited to a specific scenario: Noncommercial forwarding of a message posted to a fairly large and open list.
Thoughts on Day 1 of the Convention:
1) Y'know, a speech isn't any less negative just because the convention organizers leak the information that they're not allowing any negative speeches-- or, for that matter, because the speaker tells us that it's not negative.
2) ... but man, can Bill Clinton make you believe that it does. His speech was hardly if at all less of an attack than Carter's; it was more of an attack than Gore's or Hillary's. (See Ramesh Ponnuru, David Kusnet.) But it didn't feel that way. He's simply a brilliant, masterful speaker. I can't offhand think of a particular speech he's given that's memorable and enduring, like Kennedy's inaugural or Reagan at Westminster or the Berlin Wall. His speeches are in important ways banal, of the moment, and always nakedly partisan and political. But he's so damn good at them, and he's gotten better over the years. (He's outgrown the singling out of token audience members, for example.) He's the only currently active political speaker I'd rather watch give his speech than read the transcript later.
3) Still, I'm curious to see whether the mainstream press actually buys the claim that last night wasn't loaded with Bush-bashing. Even Clinton's wasn't hidden; it was just coated in his honeyed voice. Carter's would have been astonishingly nasty, if I still had the capacity to be astonished by Carter. (Much of the bashing was effective. Some of it was right. And bashing the incumbent is what a challenger's party does. But I dislike the sanctimonious pretense that "As long as we don't repeat Michael Moore's theories, we're running a positive, 'choice of visions' campaign.")
4) It seems like the pure-play bloggers were too busy getting interviewed yesterday to do much actual blogging. The magazine group-blogs are, so far, the sites to be reading: The New Republic, The American Prospect, Reason. Slate's Will Saletan has a good blog going. NRO's Corner hasn't set up a special blog for the contributos who are in Boston, the way the other three have, and so far it hasn't shone-- because it's only posting bite-sized bits of snark, and leaving the two-paragraph-or-more contributions as separate NRO stories. So far I prefer the convention-only blogs that include a mix of long and short posts.
5) Go read all Andrew Sullivan's post-midnight posts. On-site, Josh Marshall's got some good stuff up.
Update:
Patrick Belton was saving up all his posts for one long mega-post in the morning.
Monday, July 26, 2004
Nudity on drive-in movie screens
is constitutionally protected — signs containing dead fetuses are forbidden. Yup, that's the First Amendment rule that seems to apply in the Eighth Circuit (Missouri, Minnesota, and some neighboring states).
The first part of the rule (that nudity on drive-in movie screens is constitutionally protected) has been well-established since 1975, when the Supreme Court struck down a ban on such nude displays in Erznoznik v. City of Jacksonville. The Court concluded that
the offensiveness of the speech to some viewers generally can't justify restricting it, the presence of children who can view the material can't justify restricting it either, unless it's "obscene as to minors" (which requires it to be not mere nudity, but rather sexually explicit), and the risk of traffic accidents caused by drivers being distracted by the nudity can't justify a selective ban: "By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist."
So that's the law, set forth by the Supreme Court. Agree with it or not, there it is.
But just today, the Eighth Circuit held that police officers may require anti-abortion protesters to put down their three-by-five-foot signs containing color photographs of aborted fetuses. Why? Well, because they supposedly distract drivers, and perhaps also because they are "frightening" to "very young children." What about Erzoznik? The majority says nothing about it (except for one indirect citations that doesn't even begin to explain how this case is different from that one).
The one possible distinction between this case and Erznoznik is that here some drivers did specifically complain that they were distracted. One can imagine that the police might have therefore thought that this speech was unusually distracting, much more so than any other kind of sign or billboard that drivers might see.
But I'm extremely skeptical about rules that give the police the discretion to make such decisions (and the Court has been skeptical about such discretionary rules, too, where speech restrictions are concerned). There's no objective metric for deciding which images are more distracting than others. Nor is the frequency of driver complaints much of a neutral metric — we're all much more likely to complain about things that are distracting and ideologically offensive to us than we are about things that are distracting but appealing. Moreover, once people learn that "Officer, I find those signs distracting" is a good way to get the signs taken down, people will be much more likely to make that sort of claim.
And of course these sorts of distraction claims can be made against any speech that some people find offensive enough. I'm sure that some people are offended to the point of distraction by flagburning, by Confederate flags, by anti-veteran messages, or by a wide range of other speech. Under the Eighth Circuit's reasoning, whenever a few drivers make such an objection, and police officers decide to credit the objection — something that's almost entirely up to the officers' own judgment — the speech can be suppressed.
This is a really bad decision, one that I hope either the Eighth Circuit sitting en banc or the Supreme Court will quickly reverse. I've been somewhat skeptical of some Justices' claims that the Court has been treating anti-abortion speech worse than other speech. But here the Eighth Circuit is indeed allowing restrictions on anti-abortion speech that are flatly inconsistent with the rule for speech generally. (The same, I think, was true for the Nuremberg Files case from the Ninth Circuit a couple of years ago, which I'm sorry the Court refused to hear.)
I'm glad I don't live on
" Skunk Misery Road," in Higganum, Connecticut. (Thanks to the here Hartford Courant; and see here for some more Connecticut road names.)
UPDATE: Mark Eckenwiler also points to Toad Suck, Arkansas.
Can the Supreme Court correct its own decisions?
Reader Steve Sturm writes, about the Blakely decision, which is leading many lower courts to strike down the Sentencing Guidelines on constitutional grounds:
Today's WaPo editorial calls for the Supreme Court to interupt their vacation and fix the Blakely mess (their characterization).
Can the Court issue rulings without a case on which to rule (I thought they didn't like to/couldn't issue advisory rulings)? Are there such things as a legal 'do-over'?
Well, the Court couldn't just decide on its own today, "whoops, we got it wrong in Roe v. Wade, we'll just issue an order adopting the contrary rule." But the losing party can file a petition for rehearing -- there's one due in Blakely August 18 -- and the Supreme Court could revise its decision in response to that petition. I think the Court can also just unilaterally correct the decision at any time before the so-called "mandate" issues; in this case, I suspect that the extension of time to file a petition for rehearing will be seen as suspending the issuance of the mandate.
Now the Supreme Court almost never does either of those things, but courts of appeals sometimes do, and I think it would be within the Supreme Court's power to do it. Also, the Court has before it the Second Circuit's certified questions about the impact of Blakely on the Guidelines. The case, U.S. v. Penaranda, is now docketed, and the Court can in theory accept the certificate and give an answer -- one that might clarify Blakely's scope, or even reverse that decision -- very soon.
But in practice, I think the Court (1) will likely agree to hear the case very soon, since there is already a circuit split on an important issue, (2) might possibly make the decision to hear it in the next few weeks, rather than waiting until the late September / early October conference, so that the parties could start briefing the issue quickly, but (3) would likely not make a definitive decision until it gets briefs and hears oral arguments. Though the Justices could decide the matter without full briefing, or even any briefing (for instance, if they recall the mandate and amend the decision on their own), I think they don't want to do that -- briefing on important and difficult questions such as this really is valuable.
Government requires restrictions on Al-Jazeera:
The Canadian government that is, apparently under the same anti-hate-speech laws that some on the Left have urged as good examples for the U.S. Here's what the Washington Post reports:
Last week, the Canadian Radio-Television and Telecommunications Commission announced that it had approved al-Jazeera, but required cable and satellite distributors to monitor its programs 24 hours a day. The agency also took an unprecedented step in allowing cable companies to alter or delete "abusive comments" from al-Jazeera programs. Currently, it is illegal for distributors to delete programming, but in this case, the commission made an exception. . . .
[D]uring the application process, a number of groups raised concerns about the content of previous broadcasts. Canadian officials said they could not bar the station, which had never violated Canadian regulations because it had never been allowed to air legally in Canada. Instead, the agency decided to require that cable distributors be responsible for the channel's content. The agency mandated that the distributors keep tapes of the program but left it largely up to cable companies to decide how they would regulate the broadcasts. . . .
Elie Kawkabani, president of Reach Media, a Los Angeles-based media marketing and distribution company, which holds the rights to distribute al-Jazeera, said the channel has been marketed in the United States since 1998 with no such restrictions. . . . "They've given us approval but made it difficult for cable companies and satellite companies to carry it. They are not set up to monitor and decide what is appropriate or not appropriate. Their role is not censorship . . . . They should not be concerned or involved in the content they deliver. The CRTC has made it impossible for us to find distribution in Canada." . . .
But the Canadian Jewish Congress argued to the commission that al-Jazeera has disseminated anti-Semitic hate speech, providing a platform for "hatemongers" and broadcasting "stereotypical characterizations of Jews that resort to classic Judeophobic themes such as the image of the Jews an alien, evil, world-dominating conspiratorial force," according to commission records. "Moreover, the CJC argued that al-Jazeera has gone further by broadcasting threats to the physical security of Jews and engaging in Holocaust denial." . . .
I'm not positive, because I'm not an expert on Canadian law, but it seems from context that the Canadian government isn't just allowing cable companies to edit Al-Jazeera -- it's essentially requiring them to do this, by threatening to hold them "responsible for the channel's content," presumably meaning any anti-Semitic viewpoints that the channel expresses. I'm sure that I'd find much that's carried on Al-Jazeera to be offensive and repugnant. But that's not a sufficient reason to deny listeners -- both those who may agree with Al-Jazeera and those who just want to know what this internationally important broadcaster is saying, including especially what sort of anti-Semitic propaganda it might be spreading -- the ability to hear those viewpoints.
Incidentally, such a restriction would be quite clearly unconstitutional in the U.S. In FCC v. Pacifica Foundation, the Supreme Court did uphold -- in my view incorrectly -- restrictions on profanity in over-the-air broadcasts, but made clear that restrictions based on the broadcast's offensive viewpoint are not allowed.
Daniel Okrent on Liberal Bias at the NYT:
This is not exactly news, but it's interesting coming from the paper's own Public Editor. Some excerpts:
Is the New York Times a liberal newspaper? Of course it is.
. . .
I'll get to the politics-and-policy issues this fall (I want to watch the campaign coverage before I conclude anything), but for now my concern is the flammable stuff that ignites the right. These are the social issues: gay rights, gun control, abortion and environmental regulation, among others. And if you think The Times plays it down the middle on any of them, you've been reading the paper with your eyes closed.
. . .
Start with the editorial page, so thoroughly saturated in liberal theology that when it occasionally strays from that point of view the shocked yelps from the left overwhelm even the ceaseless rumble of disapproval from the right.
Waiving Waiver:
Can you waive an argument that your oppponent waived an argument? Apparently so, according to this decision of the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Delgado-Garcia, the court found that the defendants, who were charged with conspiring and attempting to bring illegal aliens into the country, waived most of the grounds for their appeal by entering unconditional pleas after trial. Yet on one issue, whether the relevant statute applies extraterritorially, the court held that the government waived the argument that the defendants waived their defense. The government's waiver did not matter, however, as a divided panel found the relevant statute does apply extraterritorially, and the convictions were upheld.
No Democracy for Workers:
I will admit to not being the biggest fan of organized labor. (Threats against one's life and one's family as a child will do that to a guy.) Even setting aside my visceral hostility to unions, I was schocked to come across this report (third item) that John Kerry is now opposed to secret ballots for votes on union representation. Without a doubt, organized labor believes that allowing union organizers to collect cards from workers makes it easier to certify a union -- but it also facilitates coercion and fraud. If a company's workers support unionization, then the union will win a secret certification vote. This looks like a sop to Big Labor, pure and simple -- and one that comes at the expense of workers. Is there any other plausible basis can one defend Senator Kerry's position?
Do you have the time?
When someone asks the author of Slate's Kerryisms "Do you have the time?," does he just say "Yes" and walk on? If someone else says "Yes, it's five thirty," does the author condemn the "it's five thirty" as a "caveat" or "embellishment"?
That's what it looks like if you read the most recent Kerryism. Larry King asked John Kerry, "Is abortion a great moral issue to you?" Do you think that this was a question that called for a literal yes-or-no answer? Or do you think that the way normal people speak, such a question is usually an invitation for the candidate to explain his moral views about abortion? John Kerry apparently chose the latter interpretation:
Sure it is. Absolutely. And I think it's far more complicated than public life allows the discussion for. I mean, being for choice does not mean you are for abortion. Neither Teresa nor I are for abortion. Abortion should be rare, but safe and legal, as President Clinton said so often, and I think appropriately.
I think that it's really a question of who should make this decision, and how do arrive at it. But there is morality. Of course there's morality involved. And we should be talking to people in America about responsibility, about adoption, about other choices. And I want to have a better conversation than I think we've had on it. But it doesn't change my position on who chooses. And I will protect that right of choice.
This may have been more verbose than necessary, but it was a sensible thing for a politician to say.
On the other hand, this is what Kerryisms gave as Kerry's answer without "caveats and embellishments":
Sure it is. Absolutely.
If Kerry had said that, he would have been seen either as a fool (someone who thought the question called for a yes-or-no answer) or as evasive (someone who knew the question called for an explanation of his moral stand, but who chose to duck it by pretending that the interviewer was looking for a yes-or-no answer). And if Bush had given such an answer, it would doubtless appear in Slate's Bushisms.
Now I'm not at all sure that the rest of Kerry's answer could correctly be called "caveats and embellishments." But even if it is, then this example just shows that there's nothing funny, worthy of derision, or even particularly noteworthy about "caveats and embellishments." In this case, they turn a nonresponsive answer into a responsive one; an answer that's worthless to the voters into one that's useful; an answer that's bad politics into one that may be good politics; an answer that would seem surreal into one that expresses a plausible moral position (whether or not one thinks it's the right one). Why then is Slate condemning them? If it wants to fault Kerry, that's great -- but fault him for something that deserves faulting. If it wants to make jokes, that's fine, too; but where's the joke here?
I've criticized Kerryisms many times in the past; maybe I've reached the point of diminishing returns. But it just galls me to see this sort of stuff -- not substantive, not funny, just empty snideness descending into self-parody -- in a magazine of Slate's prominence and quality.
It was actually Parkerstein, until they made him change it:
So Peter Parker is explaining to MJ that he's just like everyone else after all — she doesn't yet know he's Spiderman, but he does — and the line he uses is . . . "Punch me, and I bleed."
Where have we heard that before? Are the writers trying to tell us something? Well, probably not, but in the long tradition of Jews claiming to find Jewish connections everywhere, I thought I'd bring this up. Plus, hey, we need a superhero, and Arthur, The Tick's sidekick just doesn't qualify.
UPDATE: Jacob Levy passes along this list of Jewish superheroes, and The Spoons Experience e-mails me a couple -- but if you check the list, you see that it proves my point. We need a serious superhero, not just Colossal Boy. (Please, no need to e-mail me about Colossal Boy's or the others' relative merits, or about the supposed inaccuracy of the list I link to.)
But Spoons points out something more important: I think you should be able to claim Spiderman. After all, it sounds like a Jewish name, doesn't it? Can you hear it? Federman, Goldman, Grossman, Leiberman, Friedman... Wow -- how could I have missed that? Maybe that means that all the big -man superheroes are Jewish.
The Presumption of Liberty In Action?:
The Valley Morning Star in Harlington Texas ran this editorial on July 17th, in which they employed the Presumption of Liberty. (They appear not to have an archive so I cannot provide a direct link)
EDITORIAL
Gay marriage: The debate disappoints
Advocates on all sides assure us that the failure of the Senate, by a 50-48 margin, to get even a majority in favor of a constitutional amendment to ban gay marriage is not the end of the process, but only the beginning. We suspect they are right, but we fervently wish that it were not so.
The presence of so much heat and so little light in the Senate should give us all reason to regret the tendency to want to decide such personal, intimate issues through the political process. And, while there are practical reasons having to do with consultation during illness, property rights, inheritance and the like to want to continue to do so, it should raise the larger question of whether the state should be in the business of licensing marriage — which predates the modern state by several millennia at least — at all.
The vote Wednesday, far from being a sober consideration of the grave issue of amending a basic document of governance, was a circus of partisan opportunism. President Bush, seeking to firm up his base of conservative support, made marriage between a man and a woman the only topic of his radio address last week. Then the Democrats, having counted votes, agreed to a vote on one proposed amendment (several are floating around), but only one. That one failed.
Both parties hope to use the issue to advantage in the November election.
The issue is rich with ironies. Conservatives — though not all of them — who as a general rule like to keep power at the most local possible level and resist tinkering with the nation's fundamental charter, seek a constitutional amendment to define a single national standard on marriage. Liberals, who have no qualms about interfering with freedom of association when it comes to the hiring practices of Boy Scouts or churches, want the state to bless the freedom of gay people to associate in marriage.
Thus, we have an argument over which wrong way to regulate the most intimate of relationships. Should it be done by legislatures or votes of the people, or by courts finding new rights?
How about neither? What is missing in the debate is the subtitle of Boston University law professor Randy Barnett's recent book, "Restoring the Lost Constitution — The Presumption of Liberty."
As University of Chicago law professor Richard Epstein put it in a recent Wall Street Journal article, "Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals." The state may intervene to protect people from harm, like assault or pollution, but not from actions seen as offensive but not unambiguously harmful.
A presumption of liberty would suggest that this delicate issue is best handled by the gradual, subtle interplay of voluntary decisions by free people.
Most churches probably will decline to bless gay marriages, for example, but some might. Some homosexuals will want to call their relationship a marriage while others will not. Everybody else will be free to recognize such unions as valid or not. Men and women, meanwhile, still will be free to marry and raise children — or not — however this issue plays out.
The impulse to make every issue a political one, to be decided for everybody by a state institution, is needlessly divisive. Why not take a deep breath, let people make their own decisions, and decide on an individual basis how to treat people who make troubling decisions?
Too confusing? Hardly less confusing than politicizing the personal.
I myself am not convinced that state marriage is a liberty question of the same type as cohabitation or sex is. Marriage, however, can be viewed as a type of contract. If so, then there is no reason why gays should be prevented from entering into this form of legally binding agreement. This IS a liberty question, to which a Presumption of Liberty would be relevant.
Everything that is legal, however, is not necessarily approved. If marriage is instead viewed as a state imprimatur or sanction of some relationships over others, then the state need not give out its approval unless it actually approves. The obvious solution here is to separate the contract aspect of marriage into one institution called "civil unions"--providing a form contract for such unions--reserving the approval or disapproval of some civil unions to organized religions, which were once the sole regulator of marriage long before the rise of nation states. This, I take it, is the recommendation of the editorial in the Valley Morning Star, to which I am very sympathetic.
Or you can have goverment-created "civil marriage" status over and above "civil unions" contracts, which would convey governmental approval in the form of extra financial subsidies and benefits conveyed on these particular unions--much as there are subsidies for many other types of activities, like research and development, the government deems productive. While I am generally unsympathetic to such social welfare schemes, this one would not, I don't think, be restricting liberty and, therefore, would not implicate the constitutional Presumption of Liberty I favor in my book.
In short, I think it pays to separate the contractual aspects of marriage from that of social or religious approval. When one does, the constitutional issues become somewhat clearer, at least to me.
Sunday, July 25, 2004
The Boss of Malcolm, Dirk, Monica, and Others
I also got a lot of reader responses to my post on "You're not the boss of me!" Most of them wrote to tell me that if I had not been so quick to filter the They Might Be Giants song "Boss of Me" out of my Google search, I would have learned that it is the theme song for Malcolm in the Middle, and has been for all five or six seasons of the show. That, they pointed out, probably had a lot to do with the phrase's increasing popularity.
A good number of respondents also mentioned the movie Boogie Nights, in which porn star Dirk Diggler tells off his producer, saying, "You're not the boss of me, Jack! You're not the king of Dirk! I'm the boss of me! I'm the king of me. I'm Dirk Diggler!" (Thanks to Mike Miller and D.G. Judy for the exact quotation.) I actually did see Boogie Nights, and I'm surprised I didn't notice that line, especially since it seems to have made an impression on so many others. Maybe it even inspired TMBG; Boogie Nights came out in 1997, and "Boss of Me" in 2000, so it's possible.
Though these two pop culture appearances may have helped popularize boss of me, the strange syntax predates them. A few readers noted that Monica Lewinsky had been widely quoted as saying it. VC reader Michael Gebert notes that Bob and Ray often used the phrase for a couple of recurring characters in their racio show from the 50s to the 70s. And several readers told me about hearing it in their childhood, the earliest being the 1960s.
As for how the phrasing actually came about, there were a couple of hypotheses that a number of readers proposed. Some said they thought it was supposed to imitate the syntax of a child, being as how kids are more apt to say "You're not the boss of me" than (most) adults are. I don't buy this one. It leaves unaddressed the question of why this should sound like childish syntax. After all, how many kids have you heard saying things like friend of me, doctor of me, mother of me, etc.? In other words, most kids seem to have possessives with relational nouns other than boss well in hand, so the question is still: What is so special about boss? And anyway, I think you sound equally childish whether you say, "You're not the boss of me!" or "You're not my boss!"
Other readers guessed that boss of me was formed on analogy with phrases such as king of England, mayor of the town, chair of the committee, etc. At first I didn't put much stock in this hypothesis, either, since the of-phrases in these examples are geographic areas, or collective nouns, not singular individuals. However, one reader (whom I'd be happy to credit, but who wishes to remain anonymous) pointed me to the 1979 movie Norma Rae, in which the title character tells an antagonist something like this:
you may be the boss of this town, you may be the boss of this factory, you may be the boss of this shop, but you ain't the boss of me.
This speaker goes from town to factory to shop until she gets to the smallest location |