The Volokh Conspiracy

Saturday, September 4, 2004

[Todd Zywicki, September 4, 2004 at 4:45pm] Trackbacks

SIGNED, "A FAN": A recently received email: "At this point I swear I will pay solid money in small bills to make the wine wars stop. Signed, A Fan"

For all of you out there, I've pretty much finished up on the wine wars posts and I apologize if I bothered you with tedium. I decided to put that last bit up on the Labor Day weekend when the Conspiracy is largely at rest. Thanks for all your interest and the many comments I have received on that.

I have also pasted all of the posts into a Word document (my thanks to David Smith who actually had the idea and did the original work of utting them together--and even corrected my spelling!) that I will be happy to email to anyone who would like to have it all.

[Todd Zywicki, September 4, 2004 at 12:05pm] Trackbacks

WINE WARS, PART 17—ANALYSIS OF JUSTICE O’CONNOR’S MISUSE OF LEGISLATIVE HISTORY: Justice O'Connor's error here is quite profound. It is clear that she has simply failed to grasp the context within which the 21st Amendment was enacted. She has completely ignored that the 21st Amendment was enacted to effectuate the repeal of the 18th Amendment. The problem the 21st Amendment sought to address, therefore, was that the 18th Amendment unwisely gave to the federal government the power to regulate wholly local affairs regarding alcohol in order to impose national prohibition. Thus, it meant to restore to the states the power to exercise their police power over local affairs, and restored the Wilson Act and Webb-Kenyon in order to allow the states to apply their police power to imported alcohol as well.

Justice O'Connor, by contrast, reads all of these statements in isolation from this historical context. She seems to believe that the problem that the framers of the 21st Amendment sought to correct was the states' lack of power over interstate commerce, rather than the federal government's overreaching power to regulate local affairs. This simply is not correct. Moreover, it is completely illogical—giving the states a new power over interstate commerce would have done nothing to correct the real problem, which was the federal government's power under the 18th Amendment over local affairs. Thus, under her interpretation, if the purpose of §2 was to give the states plenary power over interstate commerce, that remedy of giving the states power over interstate commerce is not even aimed at the problem of federal overreaching into local affairs.

Moreover, as illustrated by Wagner's remarks, there was a consensus that the interstate commerce problem of discrimination in favor of interstate liquor had been solved by the Wilson and Webb-Kenyon Acts. Thus, there simply was no reason to give the states a new power to regulate interstate commerce, because the Wilson and Webb-Kenyon Acts were constitutionalized by §2. Similarly, the imposition of Prohibition by the 18th Amendment had nothing to do with issues involving interstate commerce, but rather to impose federal regulation of local liquor sales—i.e., saloons. In turn, this is why the proponents of §3 favored its inclusion, so as to prevent the reestablishment of the saloon, and why Wagner and others opposed it, because it would retain the federal intervention into local liquor regulation.

In other words, because Justice O'Connor has failed to understand the historical context in which the 21st Amendment was enacted, she has essentially turned the entire debate backwards and upside down. The debates are about WITHDRAWING the federal government from the regulation of local liquor affairs, NOT about giving the states new power to regulate interstate commerce. To put it another way, the purpose of the 21st Amendment was to END the federal invasion of local liquor regulation, rather than to BEGIN state invasion of the federal interstate commerce power.

Justice O'Connor is really profoundly confused about the purpose of the 21st Amendment. In many ways, her misuse of legislative history here is a useful cautionary tale of the problems with trying to do legislative history when one is not willing to actually try to understand the context in which the relevant words are spoken. In this case, her sloppy use of legislative history has colored almost two decades of Supreme Court jurisprudence and academic thinking on the intent of the 21st Amendment. It is efforts like hers that provide ammunition to those who would reject legislative history in all contexts.

[Todd Zywicki, September 4, 2004 at 12:04pm] Trackbacks

WINE WARS, PART 16—O’CONNOR ON OTHER SENATORS AND PROPOSED §3: Justice O'Connor cites a litany of other Senators who she believes support her interpretation. Rather than beating a dead horse still further I will just offer a brief comment on each of these. "Still others emphasized the plenary power granted the States by § 2. Senator Walsh, a member of the Subcommittee that had held hearings on the Amendment, said: `The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter.' Id., at 4219." Obviously, this specific mention of the "consignee as well as thereafter," refers to the precise language used in the Supreme Court's earlier commerce clause decisions in Rhodes, etc., so this is quite clearly narrowly targeted at that interpretation of the commerce clause and suggests nothing about giving the states power to enact discriminatory regulations.

She also adds comments by Senator Robinson, "In response to a question from Senator Swanson, Senator Robinson of Arkansas affirmed that `it is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported.' Id., at 4225. Thus, upon the motion of Senator Robinson, the Senate voted to strike § 3 from the proposed Amendment. Id., at 4179." Again, the import of this is quite clear and quite the opposite of what Justice O'Connor believes it means. Under the 21st Amendment, as with Webb-Kenyon, under their police power the states had the authority define what constituted intoxicating liquors and how they were to be sold and transported within a state. The federal authority incorporated these state laws into the Webb-Kenyon Act for purposes of enforcement. Senator Robinson makes clear that his criticism is again that the problem with §3 is that it does not withdraw the federal government from local activities. "The issue here is whether the federal Government is going to take away from the States all power after repealing the eighteenth amendment, in the even the repeal shall be ratified." Cong. Rec. 4226. He then goes on to discuss his desire to prevent the return of the saloon, but that proposed §3 was not the way to do it. There is nothing in this effort to withdraw the federal government from local affairs that implies that §2 was intended to allow the states to invade the federal government's commerce power.

Speaking immediately after Senator Robinson, Senator Tydings elaborated on the point. After reciting the abysmal failure of federal prohibition he stated, "I say that we never should have taken this question [regulation of the saloon] from the States. It is not a national question. It is a local question, and it can be solved best in the communities that have to deal with it. This government never was conceived with the idea that we would reach out into every community and govern the habits and the morals and the religion of people in those communities. We were to deal with national questions only—the Army and the Navy, intestate and foreign commerce, post offices and post roads, and the rest of the 18 powers govern to us by the Constitution. We had no right at all except by turning our backs upon the philosophy of the Constitution, to go out in the States and assume this power and this control. The sooner we give it back to the States the sooner we shall establish law and order and decency and some respect for government."

Senator Bingham immediately followed Senator Tydings. His remarks were focused on the fact that the framers of the original Constitution specifically considered and chose not give to the federal government a general police power authority to enact "sumptuary legislation, "which would deal with the habits of the people, with what they ate, drank, and wore," but that they recognized that this moral regulation was properly a matter for the local communities. He then added, "In adopting the eighteenth amendment we interfered with the growth of temperance" by trying to impose a uniform national standard of morality on the country. Again, his remarks make no reference to giving the states new powers to regulate interstate commerce, but focus solely on the failure of national prohibition.

I will spare the reader further prolonged recitation of statements on this point. In an earlier post I went through the real legislative history of the 21st Amendment in some detail, but the discussion here is designed to show that even those few snippets that Justice O'Connor points to do not support her interpretation.

[Todd Zywicki, September 4, 2004 at 12:02pm] Trackbacks

WINE WARS, PART 15—O’CONNOR ON SENATOR WAGNER AND PROPOSED §3: So that brings us to Justice O'Connor's last major figure, Senator Wagner. She quotes him at length: Senator Wagner was an especially vigorous opponent of the proposed § 3. In his view, it failed to "correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed." Id., at 4144. In Senator Wagner's view, the danger of § 3 was that even this limited grant of authority to the Federal Government would result in federal control of the liquor trade:
"If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold....
* * *
"It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture.... If that is to be the history of the proposed amendment--and there is every reason to expect it--then obviously we have expelled the system of national control through the front door of section 1 and readmitted it forthwith through the back door of section 3." Id., at 4147.

At this point it is not clear whether I even need to elaborate on why this speech proves the opposite of what Justice O'Connor believes. The quote from Wagner quite clearly indicates that Congressman Wagener opposed §3 because it would have given Congress the power to meddle in local affairs and to thereby interfere with the state's exercise of their police power, and indeed, there was the fear that Congress might use this power to reimpose prohibition on the states. In expressing his desire to restore to the states their control over these local affairs by deleting §3, there is nothing here to suggest that he thought that §2 gave to the states Congress's power to regulate interstate commerce. It should be equally obvious that unlike O'Connor, Wagner did not consider this to be a "limited grant of authority," but rather undermined the essential purpose of the 21st Amendment.

Wagner quite clearly believed that the purpose of the 21st Amendment was to restore the pre-18th Amendment constitutional and legal regime. Immediately before the above-quoted passage, Wagner states, "Mr. President, the pending joint resolution tendered to the Senate and the country is called a proposal to repeal the eighteenth amendment, and because artfully it employs the word `repeal' in its first section, it pretends to fulfill the wish overwhelmingly expressed by the American people in the last election. But I submit that the pending resolution does not in fact repeal the inherently false philosophy of ht eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems." Cong. Rec. at 4144. As Wagner makes clear, the 21st Amendment did not embody the bizarre theory adopted by Justice O'Connor that the 21st Amendment restored the pre-Constitutional balance where the states controlled interstate commerce. Rather, Wagner plainly states that it was intended to restore to the states control over their LOCAL affairs governing liquor.

Wagner elaborates on this point even more plainly, "I have many times declared and I now repeat that the question which has troubled the American people since the eighteenth amendment was added to the Constitution was not at all concerned with liquor. It was a question of government: how to restore the constitutional balance of power and authority in our Federal system which had been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution. On the contrary, it perpetuates the lack of balance, the absence of symmetry, the confusion and overlapping of Federal and local authority." Id. at 4144. Elsewhere he elaborates on the problems that this concurrent authority inevitably would cause, in that the operation of the Supremacy Clause would inevitably mean that local regulation would be overridden by federal legislation. "The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility."

Now, I don't know how Wagner could be any more clear in expressing his intent that that the purpose of the 21st Amendment was to restore the pre-18th Amendment constitutional balance. Recall also, that it was Wagner who clarified Blaine's "in effect" language by making it clear that Webb-Kenyon did not give the states control over interstate commerce, but rather was an exercise of congressional power to allow states to enforce their legitimate police powers against interstate alcohol. Somehow, Justice O'Connor draws from this that Wagner's criticism of §3 illustrates his belief that §2 gave the states plenary power. With respect to Lea and Blaine, O'Connor's argument may be reasonable, but is wrong. With respect to Wagner's statements, however, O'Connor's interpretation cannot be taken seriously. This is pure sloppiness or a fundamental misunderstanding of what the framers of the 21st Amendment were trying to do. Regardless, read in context, it is clear that Wagner was arguing for a restoration of the pre-18th Amendment legal and constitutional regime.

[Todd Zywicki, September 4, 2004 at 12:01pm] Trackbacks

WINE WARS, PART 14—SENATOR BLAINE AND PROPOSED §3:

Amazingly, Justice O'Connor next turns to proposed §3, and states that the decision to delete proposed §3 demonstrates that §2 was intended to give plenary power to the states over interstate commerce. I have explained previously why this reading of proposed §3 is incorrect. Here, therefore, I will limit myself to explaining why Justice O'Connor's interpretation of the relevant legislative history doesn't support her view.

She writes, "When the Senate began its deliberations on the Twenty-first Amendment, the proposed Amendment included a § 3 not present in the adopted Amendment. This section granted the Federal Government concurrent authority over some limited aspects of the commerce of liquor." As noted previously, her characterization of §3 as giving the federal government control over "some limited aspects of the commerce of liquor" is blatantly incorrect. As Congressman Lea himself states—in the paragraph of his speech immediately following the "extreme of State rights" passage—§3 was NOT thought to be a "limited" provision. Instead, §3 struck at the very heart of the problem with Prohibition—the unworkable system of concurrent authority over local affairs governing liquor, and the fear that the federal government could actually reimpose Prohibition or otherwise meddle in local affairs. The purpose of the 21st Amendment, to refresh the reader's memory, was to reinstate to the states their local police power regarding alcohol, not to give them new powers over interstate commerce. So §3 was not by any means a minor or limited power, it undermined the central purpose of §2.

We then turn to Justice O'Connor's key argument, the comments of Senator Blaine. "Even Senator Blaine, the Chairman of the Senate Subcommittee that had held hearings on the proposed Amendment, opposed the limited grant of authority to the Federal Government in § 3. According to Senator Blaine, when the Federal Government was organized by the Constitution the States had `surrendered control over and regulation of interstate commerce.' 76 Cong.Rec. 4141 (1933). He viewed § 2 of the Amendment as a restoration of the power surrendered by the States when they joined the Union. Section 2 `restor[ed] to the States, in effect, the right to regulate commerce respecting a single commodity--namely, intoxicating liquor.' Ibid. In his view, the grant of authority to Congress in § 3 undercut the import of § 2: `Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment.' Id., at 4143."

Note several points here. First, although Justice O'Connor introduces Senator Blaine as the Chair of the Senate Subcommittee that had held hearings on the Amendment, he specifically notes in the moving to his interpretation of §3 that he is giving his "own personal viewpoint," not that of the Subcommittee. It seems obvious and under normal circumstances one would think it need not be expressly stated, but if Blaine is expressly and clearly drawing a distinction between his "personal viewpoint" and that of the committee—doesn't that mean it is obvious that his "personal viewpoint" is different from that of the committee. Oddly, Justice O'Connor seems to believe that in distinguishing his personal viewpoint from that of the committee, somehow he is actually speaking for the committee.

More importantly, Justice O'Connor again loses the context of Blaine's remarks. A key exchange between Blaine and Wagner, which I quoted in an earlier post, color's the whole tenor of Blaine's remarks. Again to quote it: SEN. BLAINE: "Then came an amendment to the Wilson Act known as the Webb-Kenyon Act.... The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actually entered the confines of the State...." SEN. WAGNER: "Mr. President, will the Senator yield?" SEN. BLAINE: "I see my able friend from New York shaking his head. I yield to him." SEN. WAGNER: "I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce." SEN. BLAINE: "I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same--that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress."

As this clarifying exchange indicates, Blaine did not intend to state that the states were being given the power to regulate interstate commerce, although his loose phrasing suggests that. Rather, Congress retained the power over interstate Commerce, and §2 simply constitutionalized Congress's exercise of its Commerce Clause authority to allow states to treat domestic and interstate liquor equally.

Moreover, Blaine places this entire debate over the 21st Amendment as the culmination of the long history that I have described in earlier posts. He summarizes the history starting with the Wilson Act, and the problem with Rhodes v. Iowa, where the Supreme Court held that the law did not prohibit interstate importation for personal use. Then Webb-Kenyon and the experience with Clark distilling. Then further modifications to Webb-Kenyon to tighten other minor holes in the law, leading to the present day of political and constitutional uncertainty of the states in enforcing their powers to remain dry. As he makes clear, the 21st Amendment is merely the culmination of this process, and an effort to reassure dry states by constitutionalizing this prior history.

Following his recitation of all of this historical progress Blaine then goes on to note the tenuous constitutional and political foundation of Webb-Kenyon (described in an earlier post) and adds, "In the case of Clark against Maryland Railway Co. there was a divided opinion. There has been a divided opinion in respect to the earlier cases and that division of opinion seems to have come down to a very late day. So to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line. Mr. President, the pending proposal will give the State that guarantee." He then states the passage that O'Connor quotes about restoring liquor to its pre-Constitutional status, but in so doing he uses the same language that Wagner clarified a moment ago, that §2 would "in effect" give the States power over interstate commerce in liquor—which, as he explained then, "in effect" meant that Congress was exercising its power to help the states enforce their laws.

And note his concluding passage, "I am opposed to the dry States interfering with the so-called wet States in connection with this question of intoxicating liquors; and so, by the same token, I am willing to grant to the dry States full measure of protection, and thus prohibit the wet States from interfering in their internal affairs respecting the control of intoxicating liquors." This is the key passage—as Blaine clearly states, §2 relates to returning to the states control over the "internal affairs."

Finally, Blaine's his "personal viewpoint" on which O'Connor relies seems consistent with what has been said so far. He states, "Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment."

But O'Connor ignores the remainder of Blaine's remarks on this point. Blaine states, "The eighteenth amendment is an inflexible police regulation which might be appropriate in a municipal ordinance in those sections of our country where the people desire a bone-dry local regime. The eighteenth amendment does not give the Congress a general grant of power to regulate. It is strictly a prohibition, a mandate. It is specifically a prohibitive provision of the Constitution. Surely, Mr. President, it was never designed that our Constitution would be a compilation of local ordinances regulating the lives the customs, and the habits of our people. But that is exactly the character of the eighteenth amendment. It has no place in the Constitution." He then goes on to add that he would support any and all versions of sections 2 or 3 of the Constitution, so long as the final result was the repeal of Prohibition. "My object is to take the eighteenth amendment out of the Constitution." 76 Cong. Rec. 4143-44.

It is thus clear from Blaine's remarks considered in context that he, like everyone else, understood the purpose of the 21st Amendment to be to repeal the 18th Amendment and thereby to restore the pre-18th Amendment constitutional balance, while constitutionalizing the Wilson and Webb-Kenyon Acts to provide assurance to the dry states. There is no indication that he specifically meant to repeal the nondiscrimination principle that was included in the Wilson and Webb-Kenyon Acts in enacting the 21st Amendment. Indeed, as Wagner clarified with Blaine, Blaine recognized that those acts were an act of the Congressional commerce clause authority, not a ceding of that authority to the states.

[Todd Zywicki, September 4, 2004 at 12:00pm] Trackbacks

WINE WARS, PART 13—CONGRESSMAN LEA’S STATEMENTS: The first mention of legislative history that O'Connor points to is a floor statement by Rep. Lea of California. O'Connor writes, "Although neither the House of Representatives nor the state ratifying conventions deliberated long on the powers conferred on the States by § 2, but see 76 Cong.Rec. 2776 (1933) (statement of Rep. Lea of Cal. that the section was "the extreme of State rights" because it obligated the Federal Government to assist the enforcement of state laws "however unwise or improvident")." Note a few things about Rep. Lea's statement. It is part of the Congressional Record of January 28, 1933. If the statement in question was actually uttered on the floor of the House, it was done so not during the general debate over the 21st Amendment (which occurred primarily during February of that year) but rather is inserted into the middle of the debates over the "Departments of State, Justice, Commerce, and Labor Appropriate Bill, Fiscal Year 1934" in a Section of the Congressional Record entitled "Extension of Remarks" (which may suggest that either the words were neither spoken nor heard by anyone but merely inserted into the record, although it is not clear).

Rep. Lea's statement thus occurs immediately after Congressman Kerr gave remarks on the funding request of the Department of Commerce as it concerned the commodity division of the Department, praising the commodity division for its efforts in promoting peanut and tobacco growers. The final sentence before Congressman Lea's remarks by Congressman Kerr were, "To destroy the tobacco industry or even neglect it would imperial the greatest tax-producing commodity of this nation." Then, with no warning or context, Lea takes the floor and utters the remarks in question (to which we will return in a moment). Immediately following Lea's remarks, Mr. Gibson took to the floor to address the question of the funding request of the Labor Department covering the Bureau of Immigration and the financial difficulties of the Immigration Bureau caused by an unusually large number of alien deportations during the prior year.

I go into this discussion of context in order to demonstrate an obvious point—Lea's comments, if uttered at all, were done at a completely incongruous time, when Congress was not even specifically debating the 21st Amendment. They are quite obviously one man's view, uttered at a time when no one was paying attention, and given that the 21st Amendment wasn't even under discussion at the time, there is no indication that anyone heard or considered Lea's comments as shedding any light on the 21st Amendment at all. Um, I mean, no one except Justice O'Connor.

Ok, so let's look at the substance of the remark. Justice O'Connor says it evidences that section 2 of the 21st Amendment was, "'the extreme of State rights' because it obligated the Federal Government to assist the enforcement of state laws `however unwise or improvident.'" But is that what Lea really meant?

Lea—like all the others discussed in earlier posts—believed that the actual purpose of the 21st Amendment was to restore the pre-21st Amendment constitutional balance. It is true that he thought that §2 would force the federal government to help enforce state laws, no matter how "unwise or improvident." But as noted in earlier posts, the purpose of all preceding legislation was to help the states to enforce their laws against interstate alcohol, which is clearly different from enabling states to flaunt the nondiscrimination principle of the dormant commerce clause. There is no indication that Lea thought that the 21st Amendment would make valid state laws that were otherwise constitutionally invalid.

He then states: "No one could anticipate the many varied, and perhaps unwise, provisions that might be written by the various States of the country. In this way their mere legislative action would compel this action of the Federal Government without the approval and even against the will of Congress. That proposal, on principle, is the extreme of State rights." Note, however, that is saying the final phrase that O'Connor quotes, he is not endorsing the 21st Amendment on this ground—he is criticizing it! The problem with §2 is that it might be read to embody the "extreme of State rights" which is why he is opposed to it. Justice O'Connor, of course, reads out the context that Lea is criticizing §2 on this ground, suggesting that he was endorsing this reading. He notes, however, that this provision although illogical, is "unimportant in its practical effects." Why? Because even with §2, Congress retained its power over interstate Commerce in alcohol.

Lea then goes on to add his criticisms of proposed §3 (discussed in earlier posts). He states, "The proposal that Congress shall have concurrent power with the States to regulate and prohibit the sale of intoxicating liquors to be drunk on the premises where sold, is the extreme of centralized power or Federal interference in State affairs. This provision would give the Congress power to enforce prohibition on a State against its will and also to provide regulatory provisions in favor of the liquor traffic in opposition to the laws of dry or semidry States." He then adds the criticism I rehearsed earlier, "If there is anything to be learned from our experiences with Federal prohibition, it is the unwisdom o the Federal Government interfering in State affairs and forcing on unwilling States obnoxious sumptuary legislation. The Senate amendment in effect proposes to continue Federal interference with State affairs, injects new questions of Federal regulation, and retains he liquor problem in national politics for a generation to come."

Overall, then, Lea's comments make no mention of granting the states any new substantive constitutional powers to erect protectionist barriers against interstate commerce, but rather criticize §2 for giving federal power to enforce otherwise valid state laws. And like others, he criticizes §3 for retaining the real problem with Prohibition—the federal intervention in local affairs. Section 3, he observes, would essentially give the federal government a de facto police power to regulate all aspects of liquor sales. Under proposed §3, "This provision would give the Congress power to enforce prohibition on a State against its will and also to provide regulatory provisions in favor of the liquor traffic in opposition to the laws of dry or semidry States. The wildest friend of centralized government could scarcely approve of Congress enforcing the sale of liquors on dry States over the opposition of their laws and perhaps of their Constitution. I do not anticipate that this provision, if enacted, would in practice be so applied. The fact that such a power is seriously proposed to be placed in the Constitution should excite the opposition of all." He adds, "It seems especially designed to preserve the obnoxious and unworkable features of Federal prohibition."

[Todd Zywicki, September 4, 2004 at 11:59am] Trackbacks

WINE WARS, PART 12—JUSTICE O’CONNOR’S MISUSE OF LEGISLATIVE HISTORY: Over the past few weeks (see August archives) I have explained why it thus seems clear to me that the Wilson Act, then the Webb-Kenyon Act, then the 21st Amendment, and still more recently the 21st Amendment enforcement act all manifest the same purpose—the enable the states to better enforce their long-standing police powers regarding the regulation of alcohol by allowing them to apply their police powers to alcohol shipped in interstate commerce the same as alcohol produced within the state. As a piece of history, this is a powerful narrative, that makes sense within the context in which these legislative enactments arose. By contrast, there is nothing in this historical narrative to suggest that the states would have needed plenary power over interstate commerce in alcohol or that Congress would have had any good reason to cede its interstate commerce power to the states. There is no indication that Congress intended to remove the traditional limitation—in place since at least Walling v. Michigan in the 19th Century—that the state police power to regulate or even ban alcohol does not enable the states to erect protectionist barriers to interstate commerce.

Nonetheless, Justice O'Connor claims that the legislative history of the 21st Amendment does exactly that. In her dissenting opinion in 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987), she concludes that the 21st Amendment was intended to give the states plenary power over alcohol, a position to which she has tenaciously clung notwithstanding repeated Supreme Court rulings to the contrary. Chief Justice Rehnquist also signed onto her dissenting opinion. Put bluntly, Justice O'Connor's use of legislative history in 324 Liquor is a "how-to" lesson in the misuse of legislative history—exactly the sort of sloppy cherry-picking that discredits the use of legislative history generally. A good use of legislative history would look at particular statements within the general historical context of the time, the legislative context in which the statements arose (i.e., what problem were they trying to solve), and finally and most elementary, the particular sentences should be read within the context of the actual speech that was being given, as isolated sentences are obviously given context by the surrounding sentences and paragraphs. Instead, in 324 Liquor, Justice O'Connor takes a few isolated snippets out some floor speeches on the 21st Amendment and strips them of both their historical and speaking context, ignores qualifications attached to them, and then concludes that these bits manifest the will of Congress at the time. In this Part of Wine Wars I will go through each of the statements on which she relies and show why they do not support the inference that Justice O'Connor wants to draw from them—indeed, in some cases, it will be seen that they actually demonstrate the opposite from what she wants to say they do. This will take several entries, so I will try to break these down into bite-sized arguments.

First, one thing that is interesting about O'Connor's dalliance into legislative history in 324 Liquor is that I had a research assistant go back and look at all the briefs that were filed in that case, and it appears that none of the legislative history arguments that O'Connor makes were actually briefed in that case. This doesn't mean that she is right or wrong, of course, but it does mean that the issue does not appear to have been fully briefed before her, including pointing on the problems with her reliance on legislative history that I will describe below. So the issue should be ripe for de novo consideration by the Supreme Court.

What is ironic, of course, is that Justice O'Connor begins her dissent by criticizing the court for its failure to fully consider the legislative history of the 21st Amendment in its cases on the topic. She writes, "Because the Court has seen fit in recent years to dismiss this legislative history without analysis as "obscure," Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274, 104 S.Ct. 3049, 3057, 82 L.Ed.2d 200 (1984); ante, at 727, n. 10, a fresh examination of the origins of the Twenty-first Amendment is in order and long overdue." I agree that a fresh examination of the origins of the 21st Amendment is long overdue as well—I'm just not sure that Justice O'Connor will like where it leads.

Friday, September 3, 2004

[Eric Muller (visiting from isthatlegal.org), September 3, 2004 at 1:56pm] Trackbacks

BROADCASTING REVISIONISM: Rather than just complaining (as I've noted, justifiably) about its rhetoric, Timothy Burke is thinking carefully about the substantive point of the historians' letter to the media about Michelle Malkin's "In Defense of Internment."

He attributes Malkin's success in drawing uncritical attention from the major media to two things: (a) her saying something contrarian about a matter of current interest, and (b) her being mediagenic.

He then says this:
Taking all this into account, the Historians' Committee for Fairness still has a valid fundamental point. How do you decide what's worth covering and not covering? Because not everything that is contrarian and potentially mediagenic gets the coverage—the coverage without, for the most part, attention to the dissenting views of others—that Malkin has. To put it bluntly, why does Michelle Malkin get on television and David Irving, the infamous Holocaust revisionist, not get on television? Irving's argument that the Nazis did not actually set out to exterminate the Jews is factually detailed and it's certainly contrarian, and he's actually somewhat creepily mediagenic.
. . .
The Historians' Committee for Fairness may have gone about their task the wrong way, but they're entitled to an answer to this question from the media that have given Malkin a hearing. What makes her work worthy of coverage when work of equivalent shoddiness and offensiveness is regarded as absolutely off-limits?

Timothy Burke's point about David Irving and Holocaust revisionism deserves a moment's reflection. Let's consider a hypothetical. Suppose an author were to publish a book revisiting the pogroms across Germany in November of 1938 that we know as "Kristallnacht." Suppose that author's thesis went something like this: "Yes, German and Austrian Jews certainly and regrettably suffered in the attacks of November 9 and 10, 1938, and in the incarceration of some 26,000 in concentration camps for a period of many weeks that followed. We have seen, time and again, the images of the broken storefront windows and the burning synagogues that the Jewish grievance community and politically correct academics want us to see. We have been led to believe that this was an unprovoked outburst of baseless hatred on the part of the German people. But what Jews and academics do not tell you, and do not want you to know, is that the so-called Kristallnacht had a real cause: A Jew did, in fact, murder the German official Ernst vom Rath in Paris on November 7, 1938, at the German Embassy, and documents from the time show that Josef Goebbels knew this and saw the murder as proof of a larger Jewish threat to the Reich."

This, in the context of the Holocaust, is the precise analogue of Malkin's thesis about the Japanese American internment. Please note that I'm not suggesting that Malkin herself believes or has ever said any such thing about Kristallnacht specifically, or the Holocaust generally. I am sure she does not. believe such a thing. I am also not comparing Kristallnacht to the eviction of Japanese Americans. I am instead making a point about the nature--the architecture, if you will--of her argument. It is this: you have been led to believe that what seems to be a groundless, racist government action lacked any foundation and can therefore be explained only as an expression of hatred, but that is not so; in fact, there was a real threat to the government that supplied a foundation for what they did.

So, to return to Timothy Burke's observation: suppose that a mediagenic author were to publish such a work. Would MSNBC, CNBC, Fox, C-SPAN, HBO, and countless radio programs present that work at all? If they did so, would they present it uncritically, and without rebuttal?

Of course they wouldn't. And so the question is: why the difference?

A couple of possible answers suggest themselves to me, and neither is very attractive.

One is that it's easier for us to recognize malevolence in others' ancestors (the Nazis) than in our own. Thus, what seems incontestably unjustifiable in the history of others remains debatable in our own.

The other is that Holocaust survivors and their children and grandchildren (full disclosure: I am one), and the Jewish community more generally, would not countenance an unrebutted presentation of such a work in the major media, whereas the Japanese American community is to some extent still (as it was 60 years ago) a safe target for such an assault.

In the end, Timothy Burke is right:

"If the people who make decisions about programming and content at the talk shows want to tell me and other historians that they wouldn't put Irving on the air because what he says in his work is factually specious and untrue (which it is), then they're telling me that they make these decisions based either on their own personal and professional assessments of the factual truthfulness of works of non-fiction, or they make these decisions based on consultation with experts about what is reasonable, plausible, debatably true work and what is poor, scurrilous, offensive lies. If this is true, the question becomes potent: why is Michelle Malkin on the air now? Because if talk show producers consult experts on internment, they'd certainly find that almost everyone thinks Malkin's work is shoddy and inaccurate, quite aside from its ethical character. If talk show hosts read and assess work independently to decide whether it is worth covering, then I'm hard-pressed to understand why they think Malkin's is legitimate.

And if they just put people on the air because they're mediagenic and interestingly contrarian, I again ask: why not Holocaust revisionists? What sets the boundaries of the fringes, and doesn't the expert assessment of intellectuals and scholars matter in that boundary-setting?"

Update: The comments over at my blog have started to pour in, as I knew they would, calling me vile and reprehensible for comparing Michelle Malkin to a Holocaust revisionist. A careful reader of what I wrote will, I am confident, understand what I actually do. I construct a hypothetical about one episode from 1938 Nazi Germany about which there is historical consensus. (I set aside the disagreement that actually seems to exist over whether Grynszpan shot vom Rath in enraged protest or because the two had been lovers.) I imagine a book that depicts the consensus as a "myth" by a similar mode of argument, and with a similar type of evidence, that Malkin's book uses to depict the consensus about the internment as a "myth." I postulate that such a book about 1938 Nazi Germany, published today, would not receive uncritical attention from American major media. And I ask why Malkin's has, and suggest a couple of possible answers.

To those who are rushing over to my blog to call me names for insulting Michelle Malkin, I hope that on their way over they'll think for a moment about the insult that Malkin's book represents to many thousands of loyal, patriotic, and innocent Americans of Japanese ancestry who had to endure the questioning of their loyalty 60 years ago, and now, thanks to Malkin's book and the uncritical attention the media has lavished upon it, are having to endure it again.

[Orin Kerr, September 3, 2004 at 11:29am] Trackbacks

Councilman Amicus Brief:

In news relating to the recent First Circuit wiretapping decision in United States v. Councilman (previous posts here and here), a coalition of privacy groups including the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association have just filed an amicus brief in favor of the goverment's petition for rehearing. The brief is available in .pdf format here.

For reasons that become clear once you read the cover page, I think the brief is very persuasive.

[Eric Muller (visiting from isthatlegal.org), September 3, 2004 at 9:17am] Trackbacks

WHOM TO BELIEVE? MICHELLE MALKIN, OR THE CANADIAN PRIME MINISTER?

Michelle Malkin's revisionist telling of the story of the Japanese American internment turns crucially on one supposed military fact: Franklin Roosevelt and his top military brass feared a Japanese assault on the West Coast. This, she claims, rather than prejudice, panic, or economic or political pressure, explained their decision to uproot American citizens of Japanese ancestry from the West Coast, while taking no programmatic action anywhere against identically situated Americans of German or Italian ancestry. And, she argues, it explains why Roosevelt and his Secretary of War and Assistant Secretary of War took so seriously a couple of ambiguous references in top-secret decrypted Japanese diplomatic messages referring to the recruitment of "second generation" Japanese spies.

Greg Robinson of the University of Quebec at Montreal has pointed me to the excerpt from Canadian Prime Minister MacKenzie King's diary that you see in this post. It's from June 25, 1942, and reflects a conversation that King had with Roosevelt in Washington during a meeting of the Pacific War Council. (It doesn't reproduce clearly on this page; click on it to get a clearer image.)

According to King, Roosevelt "said he thought the Japanese were foolish in thinking we would be much affected by these attacks they were making on the Pacific Coast. That it was not likely to alarm the people unduly but rather to strengthen their feeling of resistance. It was clear that he, himself, did not contemplate much in the way of an attack on our Pacific Coast but felt that the possession of the bases at Kiska [in the Aleutian chain] and elsewhere were to help to meet the situation that might develop between Japan and Russia."

Admittedly, this is not Roosevelt's diary; it is King's. But it is a far, far clearer window into Roosevelt's thinking about military risks than the suppositions—for that is all Malkin can muster—about which decrypted messages Roosevelt must have seen and what he must have thought they meant in the context of what he must have feared about a Japanese assault on the West Coast.

One other thing: before people start shouting about the American victory at Midway in early June of 1942, and about how the military situation on June 25, 1942 (when he spoke to King) was different from the situation on February 19, 1942 (when he signed the executive order authorizing the military to take action against Japanese Americans and others on the coast), consider this: seven of the ten permanent relocation centers for Japanese Americans in the U.S. interior were not yet open (indeed, had not yet even been built) when Roosevelt talked to King. (Camp opening dates: Granada (Colorado): 8/27/42; Heart Mountain (Wyoming): 8/12/42; Jerome (Arkansas): 10/6/42; Rohwer (Arkansas): 9/18/42; Minidoka (Idaho): 8/10/42; Topaz (Utah): 9/11/42; Gila River (Arizona): 7/20/42.)

Thus, Robinson and I have shown--again--that at the time the government was still developing the bureaucracy and infrastructure of confinement, the Commander in Chief did not himself believe the "military necessity" rationale that Malkin imagines for him.

[Eugene Volokh, September 3, 2004 at 12:11am] Trackbacks

Thursday, September 2, 2004

[Eric Muller (visiting from isthatlegal.org), September 2, 2004 at 7:42pm] Trackbacks

VOX DAY ON MILITARY NECESSITY:

According to Vox Day, any military historian worth his or her salt could tell you that the top military brass back in early 1942 knew that a full-blown Japanese assault on the U.S. mainland was inconceivable--and that their reliance on that rationale for evicting Japanese Americans from the West Coast was therefore bogus.

I'm no military historian, so I can't really venture an opinion on whether or not Day is right about the forces and logistics that would have been necessary for a mainland assault. Perhaps others more expert than I might wish to respond.

Update:Vox Day has posted more facts and figures documenting the impossibility of a Japanese assault on the West Coast. So far, I don't see anybody out there contradicting Day's military analysis. Day also says this: "Malkin has no case whatsoever. If she has any intellectual honesty, she will admit that she was mistaken and disavow her despicable conclusion that the internments were justified on the basis of national security." It'll come as no surpise that I agree entirely. But I'm not holding my breath for the confession of error.

[Orin Kerr, September 2, 2004 at 6:46pm] Trackbacks

NINTH CIRCUIT PROBABLE CAUSE DECISION:

The Ninth Circuit issued an interesting ruling on whether the existence of records indicating that a suspect joined a child pornography website creates probable cause to search the suspect's home for illegal child pornography. I offer an analysis of the case for members of my computer crime update list here. My basic take: the court was probably right on the question of whether probable cause existed, although its analysis is a bit quirky.

[Eugene Volokh, September 2, 2004 at 5:36pm] Trackbacks

Cathy Young on sex differences:

On a break from packing, I read Cathy Young's Reason Online review of Stephen E. Rhoads' Taking Sex Differences Seriously. I haven't read Rhoads' book, but I've generally found Young to be a sensible, thoughtful commentator on these subjects. Her review is definitely worth reading.

[Orin Kerr, September 2, 2004 at 4:03pm] Trackbacks

The War on Terrorism in the Courts:

Over at Begging to Differ, Venkat lists the anti-terrorism cases that DOJ has brought that somehow have ended up falling flat-- via acquittal, dismissal of charges, and the like. If you broaden the category to terrorism cases both charged and uncharged, you might add the case of Yaser Esam Hamdi, who it seems will soon be released. I am less sure than Venkat is about what to make of these cases. The nature of terrorism cases is that the public often only sees the tip of the iceberg, and there may be a lot more going on that we can't see but that would put things in a very different light. Still, the picture drawn by the public side of these cases is troubling.

Thanks to De Novo for the link.

[Eric Muller (visiting from isthatlegal.org), September 2, 2004 at 2:06pm] Trackbacks

I'LL HAVE THE COMMERCE CLAUSE, WITH A SIDE OF FRIES:

A student points me to this funny story at the Onion.

[Eugene Volokh, September 2, 2004 at 12:50pm] Trackbacks

Good and inexpensive restaurants right around Stanford:

Since Leslie and I will be around Stanford for three and a half months, we wanted to find some good and inexpensive restaurants that we could regularly go to and pick up from. We'd like to have a range from the hole in the wall Chinese/Thai/etc. where dinner can be $10/person or less (not counting tax, tip, and alcohol) to the moderately priced places where dinner can be up to $25/person or so. The fancier places we can probably find through Zagat and other sources.

Any suggestions? Please e-mail me at volokh at law.ucla.edu if you have some. Thanks!

[Eric Muller (visiting from isthatlegal.org), September 2, 2004 at 12:44pm] Trackbacks

RHETORIC AND REALITY. Thanks, as always, to Eugene for the invitation to guest-blog here again. It's always a pleasure.

Yesterday Eugene critiqued a letter I signed in which a group of historians and researchers (including me) complained of the decision made by many TV and radio shows to present, without opposition, Michelle Malkin's revisionist account of the Japanese American internment. (Malkin argues in her book "In Defense of Internment" that the eviction, removal, and detention of 112,000 people of Japanese ancestry in World War II were all justified by solid evidence of widespread espionage by Americans of Japanese ancestry both before and after Pearl Harbor. My (and historian Greg Robinson's) debunking of Malkin's revisionism is here.)

Eugene says that the phrasing of the letter "will likely sound to many like a guild guarding its professional turf against upstart competition, not a substantive critique that should make the media or viewers take notice." The problem, Eugene says, is that the letter buried [the lead—which is that Malkin's book gets history very wrong—]under a different lead that . . . frames the argument exactly the way that professional academics ought not frame it—at least if they want to persuade their lay readers."

I've thought about this a good bit since yesterday. I agree with Eugene's assessment of how many people are likely to read the first few sentences of the letter, especially those who come to the debate suspicious of academics in the first place. I wish I could go back in time and make some of Eugene's suggestions before I signed it.

But I don't regret signing it, even in the format in which it appears, because the letter points out something very important—something that Eugene's well-taken criticism of the rhetoric misses.

The premise of Eugene's criticism is that, in the controversy stirred by the publication of Malkin's book, "a substantive critique" actually has a chance of "mak[ing] the media or viewers take notice," and that it has a shot at reaching, let alone "persuading," some appreciable number of "lay readers."

Since Malkin published this book several weeks ago, she has presented her historical account of "vast networks of Japanese American spies"—unopposed—on probably a half-dozen prime time shows on cable television (Fox, MSNBC, CNBC, HBO, C-SPAN (although that one wasn't primetime)) and many, many national and local radio programs. On just two occasions, both of them on local radio (one in Philadelphia and one in North Carolina), I was invited to present an opposing view and did so. On a third occasion (also on local radio in Philadelphia), I was invited to present a response after Malkin spoke, but the show apparently thought better of it after hearing from Malkin for 15 minutes and hung up on me before giving me a chance to speak so that they could take "an important call from the Republican National Convention." (I wasn't in the listening area so I never learned who the caller was.)

The result of this one-sidedness is exchanges like this wrap-up exchange at the end of her interview yesterday on WPHT radio in Philadelphia:

Radio Host: The bottom line here, Michelle, is don't let your kids be taught that we did despicable things to the Japanese Americans during World War II, 'cause it ain't true.

Malkin: That's right.

One might say, "Well, if you want to get the opposing views out there, you need to do more than gripe about it in some lame letter; you need to appeal directly to these shows to present an opposing view." But here's the thing: I (and others) have done just that. I have approached each and every radio and television show that has showcased Malkin for the last several weeks—in most instances (when I was able to learn of it) before Malkin's appearance—and made the substantive case that Malkin's book presents a history so false that it amounts to a smear on the reputation of an entire ethnic group (not to mention a brief for the mass internment of Arabs and Muslims). In not one instance has any show—radio or television—agreed to present an opposing view; they've just presented Malkin. (The two local radio shows on which I did appear approached me because their producers had seen my blog.)

And the book, as of last weekend, was at #31 on the New York Times bestseller list, and has hovered near the top of amazon.com's sales list for several weeks now.

So, while Eugene might deem Greg Robinson's and my substantive case that Malkin is wrong to be "a point that should be persuasive to media and to viewers, and that appeals to acknowledged media ethics," and that should lead the media to conclude "that at least some contrary voices should be called on to rebut her arguments," the fact is that it hasn't.

I know, I know: some are already itching to fire off an email to me telling me that I'm just jealous because Michelle Malkin's book is selling like hotcakes and being talked about on TV and radio while mine didn't and isn't. Please. Anybody who thinks my efforts of the last few weeks have been about selling books doesn't know me at all (and doesn't know my book). Amazon had two hardcover copies of my book left in stock 3 weeks ago, and—guess what!—it still has two hardcover copies of my book left.

This isn't about selling books, and it isn't about getting my handsome mug on TV or my mellifluous voice on the radio. It's about countering, in the only way I know how, the stunningly successful spread of false insinuations about the loyalty and conduct of a group of Americans I've come to know and care deeply about.

By the way, for those who are curious, I have assumed that the name "Historians' Committee for Fairness" is just a play on the "Fair Play Committee," an organization that formed at one of the ten Japanese American Relocation Centers to protest the government's program of eviction and incarceration. I don't know for sure, as I didn't organize the letter-writing effort. But I don't think it's anything more than that. Certainly it's not the name of a longstanding, established organization such as the American Association of University Professors or the Swift Boat Veterans for Truth.

[Eugene Volokh, September 2, 2004 at 4:25am] Trackbacks

Eric Muller guest-blogging again:

I'm glad to say that my fellow lawprof Eric Muller (IsThatLegal?) will be guest-blogging again today and tomorrow, while my family and I are packing up and driving up to Stanford, where I'll be visiting for the Fall Semester.

Wednesday, September 1, 2004

[Eugene Volokh, September 1, 2004 at 6:50pm] Trackbacks

Tuesday, August 31, 2004

[Orin Kerr, August 31, 2004 at 9:50pm] Trackbacks

Federal Circuit on the DMCA: Today the Federal Circuit decided Chamberlain Croup v. Skylink Technologies, also known as "the garage door opener case," which considered several interesting and important questions about the scope of the DMCA. The Federal Circuit affirmed. From the opinion:

   We conclude that 17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners. While such a rule of reason may create some uncertainty and consume some judicial resources, it is the only meaningful reading of the statute. Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products. See H.R. Rep. No. 105-551, at 26 (1998). The courts must adhere to the language that Congress enacted to determine how it attempted to achieve that balance.
   . . . .
   . . . . A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization—as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker's device enables either copyright infringement or a prohibited circumvention.

UPDATE: Ernest Miller blogs his thoughts on the case here.

[Eugene Volokh, August 31, 2004 at 1:18pm] Trackbacks

U.K. bans car ads for showing gun:

Bloomberg.com reports:

Ford Motor Co., the world's second biggest carmaker, has had a television commercial for its Land Rover brand banned by the U.K. communications regulator after it was judged to "normalize" the use of guns.

The advertisement, which featured a woman brandishing a gun later revealed to be a starting pistol, breached the Advertising Standards Code and must not be shown again, Ofcom said in an e-mailed statement. The regulator received 348 complaints against the ad, many concerned that the commercial glamorized guns and made it "appear that guns are fun and cool." . . .

Ofcom said glamorization is "part and parcel" of the advertising process but this commercial "normalized" gun ownership in a domestic setting. The pistol, fired by the woman into the air as a man got into his car, was used in "an apparent casual manner and just for fun," Ofcom said. . . .

Handguns, as I understand it, are indeed largely banned in the U.K.; but this wasn't an ad for handguns. (Even under U.S. law, which as I understand it is more speech-protective than are U.K. or European free speech norms, an advertisement for an illegal product is unprotected.) Rather, it was an ad that the government thought spread an idea -- handguns are "fun and cool" -- that the government disapproves of. So of course the solution is: ban it.

Thanks to Dan Gifford for the pointer.

[Eugene Volokh, August 31, 2004 at 12:40pm] Trackbacks

Online poll screw-up

I've long declaimed against online polls, largely because they involve self-selected samples — that X% of the people who chose to participate voted in a particular way tells us next to nothing about what the public at large, or any other segment of the public at large, thinks.

But MSNBC has managed to come up with a poll that has a problem much less subtle than the one I describe above. Here's how the question is framed, I kid you not:

QUESTION OF THE DAY

Did Rudy Giuliani's speech reassure you or move you to support the Bush-Cheney ticket?

Reassure Move you to support

Yup, those are the only two options. The problem is so glaring that I have to assume it was an accident — but what an accident.

Thanks to Marty Lederman for the pointer.

UPDATE: Gil Milbauer reports that this has been fixed, and the choices are now "yes" and "no."

[Eugene Volokh, August 31, 2004 at 5:09am] Trackbacks

Smearing Soros:

It's innuendo, but it's pretty repulsive innuendo (at least unless Dennis Hastert has something to back it up). From Fox News Sunday, Aug. 29, 2004:

[Host Chris] WALLACE: Let me switch subjects. You both had very deep reservations about McCain-Feingold campaign finance reform before it was passed. In fact, I think you say in your book, Mr. Speaker, that you thought it was the worst piece of legislation that had been passed by a Republican Congress since you've come to Washington.

Now that everyone seems upset with these so-called independent 527 groups, whether it's MoveOn.org on the liberal side of the spectrum or Swift Boat Veterans for Truth on the conservative side, do you feel like saying, "I told you so"?

HASTERT: Well, you know, that doesn't do any good. You know, but look behind us at this convention. I remember when I was a kid watching my first convention in 1992, when both the Democratic Party and the Republican Party laid out their platform, laid out their philosophy, and that's what they followed.

Here in this campaign, quote, unquote, "reform," you take party power away from the party, you take the philosophical ideas away from the party, and give them to these independent groups.

You know, I don't know where George Soros gets his money. I don't know where -- if it comes overseas or from drug groups or where it comes from. And I...

WALLACE: Excuse me?

HASTERT: Well, that's what he's been for a number years -- George Soros has been for legalizing drugs in this country. So, I mean, he's got a lot of ancillary interests out there.

WALLACE: You think he may be getting money from the drug cartel?

HASTERT: I'm saying I don't know where groups -- could be people who support this type of thing. I'm saying we don't know. The fact is we don't know where this money comes from.

Before, transparency -- and what we're talking about in transparency in election reform is you know where the money comes from. You get a $25 check or a $2,500 check or $25,000 check, put it up on the Internet. You know where it comes from, and there it is.

Hastert's substantive criticisms of campaign finance may be legitimate -- but the suggestion that Soros might be getting money from illegal drug distributors, even as a hypothetical example, is pretty reprehensible. (Imagine that, say, Ted Kennedy said "I don't know where Swift Boat Veterans for Truth are getting their money, if it comes from overseas or from neo-Nazis"; I take it that we'd be pretty appalled, even if Kennedy was just giving a hypothetical example.) And while "drug groups" may be slightly ambiguous in other contexts, where it might refer to pro-drug legalization groups, in this context it pretty clearly does suggest drug criminals, partly because Hastert didn't deny the connection when Wallace raised it and partly because the pro-legalization groups are funded by Soros, not the other way around.

As Jesse Walker (Hit & Run) points out, illegal drug dealers are actually likely to oppose drug legalization rather than supporting it: "Drug prohibition acts as a price support and a barrier to entry; it helps the cartels maintain their market position. They're about as likely to fund a legalization campaign as they are to give Denny Hastert an all-expenses-paid vacation in Bermuda or -- as long as we're throwing around groundless insinuations -- a free sex tour in Thailand." But in any event, Hastert shouldn't be making such unsupported innuendos, whether they make economic sense or not.

[Eugene Volokh, August 31, 2004 at 3:27am] Trackbacks

Another Crime-Facilitating Speech controversy,

this time over IndyMedia's posting of delegates' "names, home addresses, e-mail addresses and the New York-area hotels where many are staying." The Secret Service is investigating.

I'm not sure whether such postings break any existing laws, or whether a law could indeed ban them consistently with the First Amendment. While such speech may indeed facilitate crime, it is also useful for legal and perhaps even constitutionally protected purposes, such as remonstrating with the delegates or demonstrating outside their hotels (or even their homes). See generally NAACP v. Claiborne Hardware (1982), which held that publishing the names of people who weren't complying with the boycott was constitutionally protected. (The speech in Claiborne didn't involve publishing addresses, but in a small county of about 10,000 people, knowing someone's name could pretty quickly get you his address.)

On the other hand, the Secret Service may be legitimately investigating to see whether any illegal conduct against the delegates is planned. Constitutionally protected speech may often trigger an investigation: This is most obvious after a crime is committed -- if Joe Schmoe is killed, and it turns out that I had earlier expressed the constitutionally protected opinion that he needed killing, the police could certainly investigate me more closely because of what I had said -- but I think it's equally true when the police are trying to prevent a crime. So it's hard to evaluate the investigation based on just the brief snippet that I saw reported.

Monday, August 30, 2004

[Eugene Volokh, August 30, 2004 at 11:41pm] Trackbacks

Impeaching Blair?

Iain Murray (Edge of England's Sword) has several posts on this; go here and scroll down, and also see here.

I'm not sure I agree with the last post, which argues:

It occurs to me that impeachment may actually have been the subject of implied repeal under the much-derided (by me among others), but nevertheless law of the land, Human Rights Act 1998.

How does the impeachment process as described by the authors square with these provisions?

[Article 6] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

How can their Lordships assembled be regarded as an "independent and impartial tribunal"? And:

[Article 7] No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

An undefined "High Crime / Misdemeanour" is patently contrary to this article.

I know nothing about British law, but my instinct is that if an impeachment — even for a "High Crime" — leads only to expulsion from office, it's more akin to the firing of a high government official (though a highly specialized sort of firing) than to a true criminal conviction. It doesn't make much sense to have the same protections for the accused there as when the accused is put in danger of prison, death, or the other consequences of criminal convictions; the main issue here is the welfare of the realm, not the interests of the government official, who ought not be seen as having any property interest in his position. And it would surprise me if English courts interpret these provisions, which seem focused on true criminal prosecutions or at least matters where the individual does have some sort of personal right at stake, as applying to impeachment. But in any event, Iain is the expert on English matters, and I'm not.

UPDATE: I've exchanged a few e-mails with Iain about my quibble, and they reminded me to acknowledge what Iain quite correctly pointed out (and what Mark Kleiman has just blogged about) — — in English history, the most prominent impeachments (centuries ago) have resulted in criminal punishment. The U.S. constitutional rule that an impeachment may at most punish someone by removal from federal office, perhaps coupled with a prohibition on future federal officeholding is actually a reaction to that history.

Nonetheless, I strongly suspect that in this impeachment, all that Blair's enemies would seek is his removal from office. As a political matter, it seems highly counterproductive for them to ask for more. And if that's all they ask for, then I don't think that the process ought to be treated as a criminal process.

FURTHER UPDATE: I told you that Iain is the epxert on English matters and I'm not; he writes that a 1999 report of the Parliamentary Committee on Privilege provides the following:

Under this [. . .] procedure [i.e., impeachment], all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatsoever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There in the name of the House of Commons and of all the Commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order to that House. If a commoner, he is arrested and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints 'managers' for the trial to prepare attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and reexamination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgement is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon. The last impeachment was in 1805 (Lord Melville). The procedure has not been widely adopted in the Commonwealth. However, it survives, in a somewhat different form, in the constitution of the United States of America.

I still think that if the punishment involves only removal from office (and the arrest and bail is omitted or treated as a pure formality), the process looks more like the dismissal of a high government official -- and not a matter of civil rights or criminal punishment -- even if its historical origins involved something much closer to criminal punishment. Nonetheless, I appreciate Iain's points, and I agree that formally speaking the arrest and bail are at least more reminiscent of criminal procedure, and do implicate the person's civil rights (though I'm not sure that even they would be barred by Article 6).

[Orin Kerr, August 30, 2004 at 11:07pm] Trackbacks

Old TV Campaign Ads Never Die,

they just go on the web. Or so you might think after spending some time with The Living Room Candidate, which has collections of presidential campaign ads for every presidential election since 1952. I laughed my way through the Ross Perot ads from 1992, and found lots of other great stuff, too. (Hat tip: Is That Legal?)

[Eugene Volokh, August 30, 2004 at 7:29pm] Trackbacks

University of Montana Law School Ordered

to let Prof. Natelson teach constitutional law: As I reported in early July, quoting a local newspaper:

University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .

In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . .

A hearing officer has ruled that Prof. Natelson was indeed wrongly denied the opportunity to teach constitutional law, and should be allowed to do so; and the University President has therefore ordered the Dean of the law school to let Prof. Natelson teach the class. The decision, though, was based on the law school's having not followed its own traditional informal rules on the matter; the hearing officer said he didn't have to decide whether political discrimination was present. Some of Prof. Natelson other charges, also mentioned in my earlier post, were also seemingly not reached.

The fabulous UCLA Law Library has gotten me copies of the hearing officer's opinion and the President's decision, so I've put them on the Web for those who are interested.

[Orin Kerr, August 30, 2004 at 5:18pm] Trackbacks

Political Conventions and Campaign Finance:

Political conventions don't generate any actual news these days, but look on the bright side: conventions are week-long campaign commercials that the major party candidates don't have to buy. Not that the conventions themselves are free, of course; according to this website, the GOP convention is expected to cost around $64 million.

[Todd Zywicki, August 30, 2004 at 4:59pm] Trackbacks

CELL PHONE RESPONSES: Three ideas suggested about cell phone regulation (assuming that cell phones and driving impose a cost through riskier driving--a contested proposition, as was noted):

1. Impose a ban/fine: This is Law & Econ 101, so I'm a bit embarrassed that I didn't think of it myself, but as usual Jonathan Klick was able to straighten me out on my economics. A "ban" is usually enforced through a fine, so if you impose, say a $25 dollar fine if someone is busted, then people will automatically tend to sort themselves into high and low users and will minimize the length of their calls to reduce the probability of being hit with a fine. The problem to my mind, is that local governments seem to use traffic regulations to raise revenue rather than to establish optimal rules, so who is to say they will set the rate at the proper price.

2. TAx on moving converstaions: Doug Lichtman had an interesting idea of taxing cell phone conversations differently depending on whether the conversation moves from one cell tower to another or remains on the same cell tower throughout. This is over-inclusive because it catches passengers too, but its a nifty idea because it tries to directly regulate the cost side of the transaction and tax at a higher rate those phone calls that have the greatest propensity to impose costs through risky driving (talking in a moving vehicle) versus low-cost calls that are stationary.

3. Technology and market adjustments: Mike Vos suggested that if there is a real cost here that the market would probably sort it out. He suggested that if cell phone drivers get in more accidents, this would create an incentive to tie cell phones into the "black box" recorders that are now in cars or GPS systems, such that it would be possible to determine if a person was traveling while talking on the phone. This has the added benefit, of course, of providing sound incentives to figure out whether cell phones actually impair driving by relying on adjustments in the insurance market to make that determination.

Thanks to everyone who wrote in with these ideas and others, all of which were very clever.

[Eugene Volokh, August 30, 2004 at 4:58pm] Trackbacks

Sunday, August 29, 2004

[Todd Zywicki, August 29, 2004 at 5:12pm] Trackbacks

THE CELL PHONE, MAYBE NOT-SO-MENACE: Larry Ribstein notes that the evidence remains somewhat ambiguous on the effects of driving while talking on a cell phone. In particular, as Larry suggests and I should have acknowledged more explicitly in my initial post, any costs associated with cell phone use should be balanced against the benefits, especially in terms of potential social wealth increases. Thus, even if there are costs, if they are small relative to the benefits, then a ban would be inefficient. If we assume for the sake of argument that there is some cost, it is probably basically the same cost regardless of whether the driver is doing high-value work while driving or low-value work. A rule-based solution of a complete ban, therefore, is almost certainly inefficient (unless it is a second-best solution). If there are costs, the optimal regulatory solution would be to permit high-value conversations and stop low-value conversations while driving, but a standard that permitted high-value and banned low-value conversations would be unworkable. Given that neither of these alternatives seems ideal, I suggest the possibility of a norms-based solution that tries to encourage people to self-regulate between high and low value phone calls. There may be other ideas out there on how to sort high-value from low-value, if so, please email me and I'll post any good ideas that come my way.

Of course, as Larry notes, the evidence may show that the costs may be trivial, or nonexistent, or dramatically reduced by hands-free devices, in which case the overwhelming number of calls would have positive social value and there would be no problem.

Update:

Best comment received in response:

"Dear Professor: We then have to also estimate the benifits of drinking... and of driving under the influence, don't we? How many people do you know who met their spouses under the influence? How many could only have met them that way?"

I'm not sure if he's married, but I'll give an anonymous thanks just in case...

[Juan Non-Volokh, August 29, 2004 at 9:25am] Trackbacks

Sunday Song Lyric: The Dead Kennedys were always an amusing and outrageous band. From the pointed humor of their lyrics and their raucous shows to Jello Biafra's semi-serious run for mayor of San Francisco and the allegedly obscene H.R. Giger poster distributed with the Frankchrist album, the DKs were always worth some attention, even when their music was inconsistent.

With all the talk about whether John Kerry did or did not spend Christmas in 1968 in Cambodia (his campaign admits he didn't), it just seems appropriate to post the DKs 1980 classic "Holiday in Cambodia." (Thanks to a reader for the suggestion, as it hadn't yet crossed my mind.) I won't pretend for a moment that I share the Dead Kennedys' politics but I've hardly made that the basis for my musical tastes (or lyric selections). In any event, here it is.

So you been to school for a year or two
And you know you've seen it all
In daddy's car, thinkin' you'll go far
Back east your type don't crawl
Play ethnincky jazz to parade you snazzy
On your five grand stereo
Braggin' that you know how the n*****s feel the cold
And the slum's got so much soul
It's time to taste what you most fear
Right Guard will not help you here
Brace yourself, my dear...

It's a holiday in Cambodia
It's tough, kid, but it's life
It's a holiday in Cambodia
Don't forget to pack a wife

You're a star-belly sneech, you suck like a leech
You want everyone to act like you
Kiss ass while you bitch so you can get rich
While your boss gets richer off you
Well you'll work harder with a gun in your back
For a bowl of rice a day
Slave for soldiers `til you starve
Then your head is skewered on a stake
Now you can go where people are one
Now you go where they get things done
What you need, my son...

Is a holiday in Cambodia
Where people dress in black
A holiday in Cambodia
Where you'll kiss ass or crack

Pol Pot, Pol Pot, Pol Pot, Pol Pot, ....

And it's a holiday in Cambodia
Where you'll do what you're told
A holiday in Cambodia
Where the slums got so much soul

Update:Earlier this month Michele Catalano presented her own take on this song and Senator Kerry

[Juan Non-Volokh, August 29, 2004 at 12:06am] Trackbacks

Helms-Burton-Kerry:

Apparently Senator Kerry voted for the Helms-Burton Act, before he voted against it. Where have we heard this before? (Don't worry, in this campaign you're bound to hear it again.)