The Volokh Conspiracy

My student Elliot Fladen reports.

Reader Sean Starke writes:

I just got some confirmation that New Jersey will actually be competitive this year: we just got a phone call from the Monmouth County GOP inviting us to a rally tomorrow that Rudy Giuliani will be speaking at here in town (my town, Middletown, lost a lot of people in the WTC). There is no way that they would waste a big gun like him here unless they seriously thought they had a chance to take Joisey...

I don't know how accurate the political estimation is (either my correspondent's or the Republicans'), but I pass it along for whatever it's worth.

I'm using Word 2002, and my file contains both endnotes — which have to go near the end of the book, not after each chapter — and an index. I'd like, though, to put the endnotes as the second-to-last item, and the index after them as the last. Does anyone have any suggestions for that, other than "switch away from Word"? If you do, please let me know at volokh at law.ucla.edu. Many thanks!

UPDATE: Forgot to mention this, but I can't use the "put endnotes at the end of the section" feature, and then have the body of the book be one section and the Index be a separate one -- I already have each chapter as a separate section, and I need to stick with that.

An administrator at Culpeper County High School pulled [14-year-old Ellen Sonifrank] out of her second block class [on Sept. 27] and took her to see Principal Eric Porter. The principal asked the freshman to remove a sweatshirt displaying a message that upset one of her classmates.

The front of Ellen's black, hooded sweatshirt reads, "Abortion is homicide." The back reads, "You will not silence my message/You will not mock my God/You will stop killing my generation."

After Dr. Porter expressed concern about the harshness of the word "homicide," Ellen reluctantly complied with his request. . . . But the outspoken teen reconsidered the situation and wrote a letter that The Star-Exponent published Tuesday, Oct. 12, defending her right to display the message. . . .

The high school principal said he must weigh the students' First Amendment right to free speech against the responsibility to provide an environment free of disruption.

"What is school for?" Dr. Porter reflected. "Is it where you come to express yourself, or where you come to gather as much information as you can to prepare yourself for the future?" . . .

If school officials continue to prohibit Ellen's anti-abortion message, the teen said she [may file suit] . . . . "I'm going to take them to court for taking away my freedom of speech," the teenager said. . . .

Given that, there'd have to be some pretty significant evidence that this sweatshirt actually caused more disruption than that — for instance, fights or some such — or at least seems very likely to cause such disruption. I doubt that there is such evidence, and in any event the news story doesn't mention any such evidence.

Thanks to Becky Dale for the pointer.

A reader asks, apropos the post on last week's Supreme Court decisions, what a "CVSG" is. "CVSG" means "Call for the Views of the Solicitor General." If the Justices are considering whether to grant a petition for certiorari (i.e., to agree to hear a case), and they think the case raises issues on which the views of the federal government might be relevant -- but the federal government is not a party, and hasn't filed a friend of the court brief itself -- they may invite the Solicitor General to file a brief expressing the U.S. government's views. This invitation is naturally treated as a command by the Solicitor General (who is often just called the SG).

Those who read the posts below will note that I criticize Cal State Long Beach Prof. Clifton Snider; in that, I agree with Prof. Mike Adams, and appreciate his having brought up Prof. Snider's conduct. And yet this argument by Prof. Adams strikes me as mistaken:

You have a serious problem on your hands, Clifton. The problem originates with your apparent adoption of a philosophy of moral relativism. Like your hero Oscar Wilde, who said "I never approve, or disapprove, of anything now" you think that your brand of "tolerance" makes you better than others. But you fail to see the logical contradiction in your position.

Oscar Wilde also said this about making moral judgments: "It is an absurd attitude to take towards life. We are not sent into the world to air our moral prejudices. I never take any notice of what common people say, and I never interfere with what charming people do."

Oscar Wilde wasn't bright enough to recognize that calling something "absurd" and labeling some people as "common" and others as "charming" are forms of moral judgment. Nor do you seem to possess the intellectual firepower to recognize that referring to my opinions (on "your" website) as "vindictive, rude, unprofessional, inappropriate, unauthorized, and illogical" means that you are engaging in moral disapproval. Whether you like it or not, you have made a series of moral judgments. . . .

This argument that the Leftist excesses in the academy stem from "moral relativism" is one I've heard often — but I wonder why we should think that moral relativism is the problem. In fact, as Prof. Adams points out, Prof. Snider's error is that he's too morally dogmatic: He's so wedded to his position being morally right that he blinds himself to the possibilities that (1) he's mistaken, (2) even if he's correct, others may disagree with him without being bigoted or foolish, (3) in any event, it may be wrong for him to use his English class to spread his moral views about the Bush Administration or whatever else.

Nothing that I've seen in Prof. Snider's e-mails to Prof. Adams, as Prof. Adams has quoted them, or on Prof. Snider's site, suggests that "moral relativism" is the cause of Prof. Snider's mistakes. (He has indeed written about Oscar Wilde, but that doesn't tell one much, it seems to me.) As I've discussed in my GlennReynolds.com "moral relativism" post, I don't find much reason to think that "moral relativism" is at the root of the errors of liberalism. Likewise, while the academic Left might embrace moral relativism more often than the rest of the liberal and Left movement (I'm not sure of this, but that's my sense), I don't think that the intolerance of some on the academic Left "originates with [their] apparent adoption of a philosophy of moral relativism." In any case, I see no evidence of such a connection here.

an organization whose work in fighting campus speech codes I have long admired, writes: "Thanks to a profoundly generous $100,000 challenge grant from the John Templeton Foundation, your gift will be matched in our campaign to restore the core American value of freedom of speech to our nation's colleges and universities." If you'd like to donate, go here; for details, including tax deductibility, see here.

"WARNING"

If you throw this in your waste-
basket unopened, a capsule
of water inside will break,
spilling onto a dehydrated
gorilla. He will then jump out
of the envelope and hug you
to death.

quoting law school casebooks. Matt Rudary reports that p. 59 of the November 2004 issue of Playboy quotes (or, to be precise, paraphrases, but using quotation marks) a problem from the 2004 Supplement to my First Amendment textbook. I had blogged about it here, and I think the magazine picked it up from the blog. Unsurprisingly, this was an obscenity problem (though I hasten to say not an obscene one).

Dr. Clifton Snider
English 100
California State University, Long Beach

Notice to my students: someone has published illegally in what purports to be an "article" material from my web site, that is, portions of my assignments. The article, among many misrepresentations, implies I require that you write about certain topics. As you know, you have always had a wide choice of topics to write about in your papers. The same is true for the Argument Paper. I believe in and practice academic freedom.*

. . .

*According to university policy, passed by the Academic Senate on 28 February 2000, the "primary responsibility [of professors] to their subject is to seek and to state the truth as they see it." As far as academic freedom goes, "the special nature of universities protects professors from being question[ed] about their lectures" (CSULB web site).

But much more importantly, consider the context in which Prof. Smith makes this statement:

II. The special nature of universities protects professors from being questions about their lectures.

Sweezy v. New Hampshire (1957) the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the state university concerning the Progressive Party of the United States. In holding for the teacher, the Court stressed the "essentiality of freedom in the community of American universities," and warned against "imposing any strait jacket upon the intellectual leaders in our colleges and universities."

Rendering this as "the special nature of universities protects professors from being question[ed] about their lectures," in the process of protesting criticism by nongovernmental critics, strikes me as quoting out of context. Sweezy did not say anything about professors' being questioned by TownHall columnists, or by their students; as Prof. Smith's Web page points out, it spoke of a rather different sort of "question[ing]" — coercive questioning by the government, with the threat of legal punishment for silence. To press the "protects professors from being question[ed]" language into the very different context of questioning by columnists, without any acknowledgment that the quote originated in a very different context, strikes me as improper use of evidence. I would expect that Prof. Snider would mark down any paper that quoted material out of context that way.

Finally, even setting aside the use of evidence, does Prof. Snider really believe that academic freedom protects academics from being questioned — which is to say, criticized — for what they teach? Wouldn't Prof. Snider's critic (as it happens, himself an academic) himself have a First Amendment right to criticize Prof. Snider? Free speech is speech free of government restraint, not free of others' exercise of their own freedom to criticize. I would have thought that Prof. Snider, with his asserted respect for freedom, would appreciate this.

Apropos the post below about Snider vs. Adams, check out Prof. Snider's guidelines for student papers in his Cal State Long Beach class (Adams also points out other problems with Snider's guidelines, but I want to stick to this):

Argument

I. Purpose: to persuade or at least to create tolerance for your point of view on a controversial issue; also to acknowledge the opposing side of the issue. . . .

Subjects to Avoid . . .

4. Topics on which there is, in my opinion, no other side apart from chauvinistic, religious, or bigoted opinions and pseudo-science (for example, female circumcision, prayer in public schools, same-sex marriage, the so-called faith-based initiative, abortion, hate crime laws, the existence of the Holocaust, and so-called creationism). For example, see Terrence McNally's "Just a Love Story," Los Angeles Times, 13 February 2004: B15. McNally correctly concludes that those who oppose same-sex marriage do so for one reason: homophobia. "Homophobia," as Robert Goss points out, "is the socialized state of fear, threat, aversion, prejudice, and irrational hatred of the feelings of same-sex attraction" (Jesus Acted Up: A Gay and Lesbian Manifesto, New York: HarperSanFrancisco, 1993: 1). In other words, homophobia is to gays and lesbians what racism is to people of color. Neither homophobia nor racism can be tolerated in civilized, rational debate; therefore, I will not accept either as arguments, however disguised, in your papers.

So in other words, the following arguments are inherently "chauvinistic, religious, or bigoted" -- not just mistaken or incomplete (necessarily, since they're short summaries), but chauvinistic, religious, or bigoted:

1. "Hate crimes laws are counterproductive, because they reinforce identity politics, and make racial groups more aggrieved at each other rather than less. They are also morally misguided, because assault or murder should be treated the same whether it's motivated by racism or sadism. Finally, they risk unduly interfering with people's free speech because they will often require prosecutors to comb through defendants' political statements and associations."

2. "Faith-based social programs should be entitled to be treated on an equal footing with non-faith-based social programs. If government money is spent on drug and alcohol rehabilitation, and a religiously themed program seems likely to do a good job at providing such rehabilitation, then it should get rehab funds just like a secular program should."

3. "Abortion should be opposed, because I believe -- together with liberal atheist Nat Hentoff that there is something to the argument that '[b]ecause abortion had become legal and easily available, . . . infanticide would eventually become openly permissible, to be followed by euthanasia for infirm, expensive senior citizens.'"

4. "In the last several decades, we've been experimenting a great deal with longstanding family institutions. We've liberalized divorce laws, destigmatized illegitimacy, destigmatized premarital sex, and more. Some of these changes may have been good, others may not have been but we ought to be cautious about implementing more such changes."

5. "Religion is a useful and important means of social control. Prayer in public schools helps teach students to be more obedient and moral, whether or not God exists."

6. "The Establishment Clause has been badly misread by the courts; it should never have been interpreted to apply to state and local governments. Local majorities should thus be entirely free to implement prayer in public schools, should they wish to, so long as students aren't legally punished for not participating."

I could add more examples, but are they really needed? I stress again that the point isn't that all these arguments are persuasive -- I don't agree with all of them myself. Rather, the point is that a professor who holds the "opinion [that there is] no other side apart from chauvinistic, religious, or bigoted opinions and pseudo-science [on these topics]" either

1. is strikingly intolerant of reasonable, thoughtful, civilized argument that expresses viewpoints with which he disagrees, or

2. has not given much serious thought to the subjects.

Neither is a quality we should much appreciate in our university professors.

Duncan Frissell points to an interesting controversy:

Your reposting of the Law of Fisking coincided with an actual threat to sue for copyright infringement in a Fisking situation involving one of your fellow California profs from CSU Long Beach. Mike Adams — a criminal justice prof from North Carolina and a conservative columnist — has been going back and forth with a guy at CSULB named Clifton Snider.

In the first post, Adams extensively quotes research paper guidelines from Snider's composition class . . . .

In the second post, Snider sends Adams a demand letter as follows:

. . . Dear Mike S. Adams,

On your web site you are using my copyrighted material from my web site (and misrepresenting it) without my permission. The material is meant for my professional work only. Stop using it now.

Thank you.

Clifton Snider, Ph.D.

Then Adams follows up . . . .

I'm pretty sure that Adams' actions in quoting Snider's post are solidly fair use: He's quoting material in order to criticize it, and he's doing it in a way that has no effect on the market value of Snider's Web site (which is nil). And though Adams is using a good deal of Snider's text, such use is necessary in order to make Adams' critical point.

Adams' actions in quoting Snider's e-mail are a little closer to the line; the unpublished nature of Snider's e-mail (unpublished, that is, by Snider) cuts against fair use. Nonetheless, on balance I think the critical (as well as news reporting) nature of Adams' use, and the shortness of Snider's unpublished e-mail, cut in favor of fair use as well.

In any event, from what I see on Adams' site, Snider has no case, and Adams is entirely within his rights in ignoring Snider's demands.

I'll be giving a talk about my Crime-Facilitating Speech article at Stanford Law School this coming Monday (the 25th), 12:30 to 1:30 pm, in room 180. It's open to the public, and they'll even be serving lunch.

UPDATE: Just to be clear, it's a (Crime-Facilitating Speech) talk, not a crime-facilitating (speech talk).

It's a bit late, but I thought I'd pass along the always amusing Supreme Court summary, from Mark Stancil at Baker Botts. It's funny and actually pretty informative:

Hoping to put the "win" back in Erwin, Professor Erwin Chemerinsky (formerly of USC, now slinging fed. courts and con. law at Duke) scored his second grant of the Term with Van Orden v. Perry, Gov. of Texas (03-1500). The question presented is whether a large monument, six feet high and three feet wide (eight cubic cubits for our Biblical scholars), presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the First Amendment. The Fifth Circuit descended on Chemerinksy's argument like a plague of locusts, concluding that the display advanced a valid secular purpose and "would look nice with a gun rack, too." If you believe what you read on the Internet (and, when you're as lazy as I am, you have no choice) this is the Court's first foray into the Commandments game in 20-plus years.

Complementing Van Orden (but not consolidated with it), the Court granted cert. in McCreary County, KY v. ACLU of Kentucky (03-1693), which asks: (1) whether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular; (2) whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by the court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols; (3) whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence; (4) whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion. The Sixth Circuit found the display unconstitutional, but it's tough to see the Court affirming here without sandblasting Moses and the Commandments off the frieze in the Court's argument chamber.

Appropriately, these two cases are likely to be resolved in accordance with I Kings 3:16-28. ("And [O'Connor] said: 'Fetch me a sword.' And they brought a sword before [O'Connor]. And [O'Connor] said: 'Divide the living child in two, and give half to the one, and half to the other.'").

Rounding out the day's Establishment Clause action is Cutter v. Wilkinson, Dir. Ohio D.O.C. (03-9877) - Whether the institutionalized-persons provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc-1, are valid under the Establishment Clause of the First Amendment. As relevant here, RLUIPA addresses the religious accommodations required for prison inmates.

Orff v. United States (03-1566) involves the slightly less exciting dispute over whose salmon was gored when a federal irrigation project was cut back to accommodate the Endangered Species Act. The Ninth Circuit concluded that petitioners, farmers who preferred that water flow to their crops rather than frisky fish, are not entitled to sue under the agreement governing the federal irrigation district. The question presented is whether the farmers are "intended" third-party beneficiaries of their irrigation district's water service and repayment contracts with the U.S. Bureau of Reclamation and therefore entitled to sue for breach thereof, or whether they are merely "incidental" third-party beneficiaries and therefore not so entitled?

Exxon Mobil Corp. v. Saudi Basic Industries Corp. (03-1696) comes to us from the Third Circuit and asks the age-old question: May the Rooker-Feldman doctrine, which bars lower federal courts from conducting de facto appellate review of decisions by state courts, be expansively interpreted to additionally incorporate preclusion principles and divest federal courts of jurisdiction solely because a pending state-court proceeding presents identical issues, notwithstanding the long-established system of dual federal and state jurisdiction? There is nothing particularly funny to say about the Rooker-Feldman doctrine.

In Exxon Corp. v. Allapattah Services, Inc. (04-70) and Maria Del Rosario Ortega v. Star-Kist Foods, Inc. (04-79) (consolidated for 90 minutes of oral argument), the Court granted cert. only on the question whether the supplemental jurisdiction statute, 28 U.S.C. § 1367, authorizes federal courts with diversity jurisdiction over the individual claims of named plaintiffs to exercise supplemental jurisdiction over the claims of absent class members that do not satisfy the minimum amount-in-controversy requirement? (Exxon had also asked the Court to determine whether Rule 23 of the Federal Rules of Civil Procedure authorizes the certification of a multi-state class action where individual reliance by each class member is at issue and where the predominance of common issues can be established only by distorting the law of the applicable states.)

Lingle, Gov. of Hawaii v. Chevron U.S.A. (04-163) will be a nice companion to last week's grant in Kelo v. New London (04-108) (does condemnation of slums to allow high-end development meet the public purpose prong of the Takings Clause?). At issue here is a state law capping rents that oil companies can charge gas station lessees, which ostensibly was designed to keep retail fuel prices low. The Ninth Circuit struck down the law, finding it does not substantially advance the state's asserted public interest. The questions presented are: (1) Whether the Just Compensation Clause authorizes a court to invalidate state economic legislation on its face and enjoin enforcement of the law on the basis that the legislation does not substantially advance a legitimate state interest, without regard to whether the challenged law diminishes the economic value or usefulness of the property. (2) Whether a court, in determining under the Just Compensation Clause whether state economic legislation substantially advances a legitimate state interest, should apply a deferential standard of review equivalent to that traditionally applied to economic legislation under the Due Process and Equal Protection Clauses, or may instead substitute its judgment for that of the legislature by determining de novo, by a preponderance of the evidence at trial, whether the legislation will be effective in achieving its goals.

The Court CVSG'd in three cases:

Bank of China, NY Branch v. NBM L.L.C. (03-1559) - (1) Did the Second Circuit err when it held, contrary to its own previous holding and the holdings of the First, Third, Seventh, and Ninth Circuits, that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish a "reasonable reliance" under 18 U.S.C. § 1964? (2) Did the Second Circuit err when it held, for the first time ever by any court, that civil RICO plaintiffs alleging bank fraud as predicate acts must establish "reasonable reliance" under 18 U.S.C. 1964(c)?

McFarling v. Monsanto Co. (04-31) - (1) May a patent holder lawfully prohibit farmers from saving and replanting seed as a condition to the purchase of patented technology? (2) Does obtaining patents on products which are the subject of licensing agreements afford an absolute defense to any claim that the licensing agreements violate the Sherman Act?

Comstock Resources v. Kennard (04-165) - Whether, under the False Claims Act, individuals who possess no personal, firsthand knowledge of any aspect of an alleged fraud have the requisite "direct and independent knowledge" to qualify as an "original source" under 31 U.S.C. § 3730(e)(4).

Little-known fact — Indiana Code sec. 33-43-1-3 (and similar laws or professional oaths in Alabama, George, Idaho, Iowa, Michigan, Minnesota, Mississippi, New Mexico, Oklahoma, South Dakota, and Washington) states that

An attorney shall . . . [a]bstain from all offensive personality . . . .

Some of them even require lawyers to abstain from all offensive personalities.

UPDATE: Many thanks to reader Josh Dale, who pointed out that a similar California statute, which I originally cited, has been repealed (I was working off an old printout that I'd found in my files). I've updated the post to reflect the other, still-existing statutes.

A fascinating short piece by James Gleick, the author of a recent Newton biography. (Naturally, especially fascinating for those who have just read Neal Stephenson's trilogy.)

Slate's Election Scorecard projects — and, yes, who knows how it will come out on November 2? — Bush 271, Kerry 267. Close electoral vote + likely close popular votes in many states + the experience of 2000 = likely major nastiness come November 3. Yes, I know this has always appeared possible, but polls just remind us of it.

UPDATE: I forgot to link to Rick Hasen's piece on possible election disasters -- much worth reading it.

Stephen Bainbridge has some thoughts on why we can't expect complete coherence from Supreme Court decisions, responding to Charles Fried's op-ed criticizing the Court for incoherence in recent cases, and also citing Jack Balkin's response to Fried's op-ed. (For citations to Fried and Balkin, go to Bainbridge's site.)

My friend Steve Kurtz had an odd idea: Photograph various amusing businesses named Steve's, and put the photos, together with various anecdotes, in a book. Sounds like a fun gift for people named Steve (though we Eugenes are still waiting for our volume).

A reader had asked me whether fisking was fair use, so I thought I'd put up a link to my old post on this.

Various people, including John Perry Barlow, Drew Carey, Nat Hentoff, P.J. O'Rourke, Glenn Reynolds, Nobel Prize winner Vernon Smith, various Reasoners, and yours truly, answer.

specifically as to the Guardian (U.K.) campaign of persuading Ohio voters to vote for Bush, out of sheer revulsion at British strangers' attempts to patronize them into voting for Kerry.

Eric Muller (IsThatLegal?) writes:

IsThatLegal? Why, No. It's Not.

A reader informs me that this blog has been blocked by the Seminole(Fla.) County Public Library.

It's hard to know what got me on the banned blogs list. Perhaps the librarian is a big fan of Duran Duran. Or of Siegfried and Roy.

Or maybe it's the dog.

Seriously, this seems like an odd censorship policy to me. There could be a story here. Drop by your public library and see whether you can reach the blogs you like to read. (Unless they're, uh, you know, not safe for work.) If you can't reach some of them, ask your librarian why not, and leave a comment here.

Sounds like a good idea -- and maybe it turns out that some off-the-shelf filtering software blocks some blogs, which suggests that messages to the filter producer (once it's identified) might help get them unblocked wholesale.

(1) There's an interesting interview with Neal Stephenson on Slashdot.

(2) I recently finished reading his The System of the World and much liked it. The three books -- Quicksilver, The Confusion, and The System of the World -- are not as good as Cryptonomicon (at least on first reading). But I liked them a lot, and even Quicksilver, which I liked least of the three (though I still enjoyed it), is better in retrospect, now that I've read the other two. I'm looking forward to rereading all three in a few years.

(3) Reading the interview reminded me of one thing (though far from the most important thing) that I like about the triology and about Cryptonomicon: They aren't just engaging books about ideas, but their core topics are chiefly how science affects society, commerce, war, and politics, and vice versa. As it happens, I'm a math-computer science undergraduate major and computer programmer who went into law and public policy commentary; one of the topics I write about is law and technology. Many readers of this blog -- and many of my friends who have enjoyed Cryptonomicon -- are lawyers with a technological bent, and many others are technologists who are interested in law or public policy.

It's no surprise, I think, that "my kind of people," the tribe I belong to, would find the books so engaging. And this is especially because such books -- books that not only are well-written and have well-crafted characters and plots, but which also discuss these themes, themes that are as central to modern human existence as are love, grief, and the other overwritten topics -- are so rare.

We had 35,000 unique visits yesterday according to eXTREMe Tracking, and 45,000 according to SiteMeter. Many thanks to InstaPundit for the link that brought the great majority (and of course for the Supreme Court nomination . . .).

Some people replied to the post below on section 3 of the Fourteenth Amendment by asking whether the nation can have "Enemies" for section 3 purposes without a declaration of war.

Well, the Civil War itself, to which section 3 clearly applies, was not a declared war. That suggests that "Enemies" include actual enemies with whom we are in a state of war (which included the Confederacy and North Vietnam) regardless of whether there has been a formal declaration of war. What's more, as I've argued often before, U.S. law generally does not distinguish between declared wars and undeclared wars. The question is whether we are in an armed conflict with an entity, not whether there has been a Congressional declaration of war.

Is John Kerry disqualified from being President by section 3 of the 14th Amendment? Several readers — starting with Pierce Wetter, with whom I've corresponded on the subject, and who has just blogged about it, referring partly to our correspondence — have e-mailed me to ask this question, and I noticed more chatter about it on the Web. And the question turns out to be more interesting than it at first seems (though I think the answer ends up being pretty clear).

Here's what section 3 says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Kerry, the argument goes, gave "aid or comfort" to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers' morale, thus giving the enemy aid or comfort. Kerry had previously taken an oath to support the Constitution when an officer of the United States (military officers, including lieutenants, definitely count). The Presidency is an "office" (see, e.g., art. II, sec. 1, cl. 5.) Therefore, the argument concludes, Kerry is disqualified.

1. The bottom line: I think this argument is unsound, because section 3 can't possibly apply to all people whose actions end up helping the enemy. During the Civil War itself, for instance, which prompted section 3, many government officials spoke out in favor of the North's agreeing to peace on terms that are favorable to the South. That too would have aided the South — quite possibly much more than Kerry's statements, if the speaker was a prominent Northern politician. But I'm fairly certain that section 3 wasn't understood as disqualifying them; "aid or comfort" must have been understood to mean actions intended to help the enemy that actually gave it aid, and not simply actions that had the effect of helping the enemy but that were motivated solely by a sincere desire to help the United States save lives or prevent the United States from acting immorally, rather than by a desire to help the enemy win.

That is certainly the way that modern treason law operates: As I explained here, quoting the Supreme Court, "[A] citizen may take actions, which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." And this is true even if the actor knew his actions would help the enemy: The test is purpose, not knowledge of likely (or even certain) effects.

Now some might argue that Kerry's actions might have been more reprehensible than the actions of the Northern politician I describe above. Perhaps they were too intemperate, or perhaps his statements were inaccurate, or whatever else. (I haven't followed the exact factual allegations closely enough to make a definitive judgment, but for these purposes I don't need to.)

But for the purposes of the Treason Clause, and I suspect of section 3, the test isn't simply whether the actions help the enemy, or help the enemy through improper means, or help the enemy through improper means with the knowledge that they will help the enemy. If Kerry's purpose was not to help the North Vietnamese, but to help the United States or to help maintain U.S. compliance with its own laws and policies related to military conduct, then he's not covered. And I have no reason to think that Kerry's purpose was indeed anything other than to help the United States, whether or not his actions in pursuit of that purpose may have been misguided or excessive.

So that's my bottom line, and I want to stress it up front: Section 3 should not be read as disqualifying Kerry. That's the only sensible way of interpreting the provision, and I think the only way of interpreting it that's faithful to its likely original meaning.

But it turns out that under a purely textual analysis, the matter is a lot more complex. The section 3 argument against Kerry is, for the reasons, I gave above, a loser, but it's far from the harebrained theory that it might at first appear to be. And analyzing the text closely provides a fascinating example of the troubles we run into when analyzing constitutional provisions that were, after all, written many decades ago, by drafters who had experience with different situations than we do now.

2. Omission of "adhering to their Enemies": Let's start with the textual objection to the point I made above: First, "aid or comfort" literally means any aid or comfort, intentional or not. But good textualism doesn't just look at the literal English meaning of an isolated phrase; it also looks to the legal meaning of the phrase, and to other provisions of the Constitution. And the closest provision to this one in the Constitution is the Treason Clause itself, which defines treason to cover "only . . . levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." I don't think the "and" / "or" difference is that relevant here. But note that section 3 does not include the "adhering to their Enemies" language.

And the Supreme Court's treason precedents that stress that treason includes only intentional aid rely on the "adhering to their Enemies" language as the source of the intent requirement. (See, for instance, the Court decision I quote three paragraphs above.) In the Court's mostly 20th-century understanding, "aid and comfort" means help to the enemy, and "adhering to their Enemies" qualifies this to require intent to help the enemy.

So if one reads the text of section 3 literally, perhaps "aid or comfort" would mean all actions that help the enemy, even if the actor doesn't "adher[e] to [the] Enem[y]" by intending to help the enemy. I suspect this is not how the section was understood by those who ratified; I suspect they understood it as tracking the Treason Clause. But literally, it might indeed cover Kerry's actions.

3. Speech as aid or comfort: It's also pretty clear that speech can be treated by the law as providing aid or comfort. Decisions by Congress shortly before section 3 was enacted, under a loyalty oath regime that as I understand it section 3 was meant to clearly validate, took the view that publishing a pro-rebellion newspaper or letters qualified as aid or comfort, see Christy and Wimpy, Rowell's Digest of Contested Election Cases 725 (1901); Smith v. Brown, id. at 220; Switzler v. Anderson, id. at 219-20. (I have not had the time to check the original reports, in volume 2 of the Bartlett compilation, which Rowell's purports to condense.)

Modern treason law takes the same view: For instance, spreading Axis propaganda was found to be treason (see here). The main barrier to applying the section to antiwar speech lies in the intent requirement; but antiwar speech whose purpose was to help rebels would, I think, be disqualifying under section 3. (Whether the First Amendment would be a barrier to that is a difficult question that turns both on the scope of First Amendment rights for speech whose purpose is to aid the enemy, and on complex questions related to repeals by implication; I will set them aside here.)

4. Application beyond the Civil War: But wait, you may ask: Obviously this provision was just meant to deal with rebels during the Civil War. Isn't it a dead letter?

I don't think so. The provision was enacted because of the Civil War, but its language is broad enough to cover other wars. The drafters could have chosen more focused language, but they didn't. As the Court held in Perry v. United States (1935), when dealing with section 4 of the Fourteenth Amendment, which confirmed the federal government's obligations to pay the federal debt, "While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation." Likewise with the language here; it clearly applies at least to all domestic rebellions.

5. Helping foreign enemies: Does section 3 even apply to people who help foreign enemies, rather than domestic ones? The answer to this might seem to obviously be yes, but note that the language is "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The first half specifically doesn't cover people who fight in a foreign war against the U.S. (unlike the Treason Clause, which covers all enemies).

One can argue that the second half should be read as referring back to the first half, and thus covering only people who gave aid or comfort to enemies who were themselves engaging in insurrection or rebellion. And if that's so, then none of this could possibly apply to Kerry. (I set aside claims that he was present at some meeting of Vietnam Veterans Against the War at which there was talk of assassination. Even if he was present, a matter that is disputed, I think mere talk of assassination isn't enough to qualify as insurrection or rebellion, and mere presence at mere talk is likewise not enough to qualify as aid or comfort to insurrection or rebellion.)

I think that on balance the provision should be read as covering aid and comfort to all enemies who are fighting the U.S., whether they're fighting it overseas or whether they're rebelling against it here. "Enemies" is broad enough to cover both, and it's hard to see why the provision would have been understood, when enacted, as treating those who help enemy foreign armies better than those who help enemy domestic armies. Yet this isn't obvious: There's a powerful textual argument for treating the second clause ("enemies") as being linked to the first (enemies "engaged in insurrection or rebellion").

6. Congressional removal of disability: I don't think Congress has "remove[d] such disability by a vote of two-thirds of each House." The 1872 Amnesty Act, ch. 193, 17 Stat. 142, provided that:

all political disabilities imposed by the third section of the fourteenth [amendment] . . . are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth [1859-61] and thirty-seventh [1861-63] Congresses, officers in the judicial, military, and navel service of the United States, heads of departments, and foreign ministers of the United States.

An 1898 Act, ch. 389, 30 Stat. 432, provided that:

the disability imposed by section three of the Fourteenth Amendment . . . heretofore incurred is hereby removed.

The second Act clearly applies only to disqualifications for pre-1898 conduct ("heretofore incurred"). The first doesn't limit itself so explicitly, but it stands to reason that "disabilities . . . are hereby removed" likewise refers to disabilities that had already been incurred, rather than disabilities for future misconduct, the nature of which Congress wouldn't have even known.

7. Automatic disqualification? Is disqualification automatic, or does it require some statute to implement it (e.g., a statute that says that everyone who did this-and-such during this-and-such war is hereby stripped of office)? In re Griffin, 11 F. Cas. 7 (C.C. Va. 1869), a lower court case, suggests that disqualification happens only if there's a statute providing for such disqualification. But this is only a lower court case (written by Chief Justice Salmon P. Chase, riding circuit, but not endorsed by the Supreme Court). And it's in any event not clear that its logic would apply to federal Senators and Representatives, as to whose qualifications Congress traditionally acts not through legislation but through direct examination of a candidate's qualifications (see below), or to the President, whose qualifications Congress likewise probably has the power to directly test when counting the electoral votes (see below).

8. Who decides? Who decides whether whether the provision applies — would it be a court, Congress, or someone else? I would assume that it would be Congress, which is the body that is supposed to count the electoral votes; presumably this includes the power to reject votes that are cast for ineligible candidates (whatever the cause of the eligibility). But who knows?

9. The Presidency as different: Finally, one could argue that the Presidency is outside the scope of section 3's purpose. Section 3 was justified by the fear that voters in one state or district might elect candidates who are disloyal to the country as a whole. But when the electorate is national, as it is for the President and the Vice-President, we needn't worry about that: The judgment as to whether the person can be trusted to be loyal to the United States can be safely left in the national electorate's hands. I think this is a good policy argument; but a textualist would quickly reject it, because the text of section 3 covers all "office[s] . . . under the United States," which includes the Presidency, and our guess as to the purpose of section 3 cannot modify that.

I've gone on at such length partly because of a compulsive and likely unhealthy professional desire to be relatively complete, and partly because exploring these mostly forgotten constitutional provisions reminds us how complex the supposedly simple act of reading a sentence and applying it to the facts can be. I stress again that, for the reasons I gave in item 1, section 3 doesn't and shouldn't bar Kerry's candidacy. But the issue is considerably more complex than one might at first think.

The New York Post, citing an unnamed inmate at the Alderson, W.Va., minimum-security prison camp for women, reported that the guru of good living spent some time last week picking crab apples from trees on the camp grounds and used them to cook up sweet jelly.

"The normal person would get punished for that, but the prison guards managed not to see her," the inmate was quoted as saying.

Here is the full story.