Something recently reminded me of a few thoughts I had about this subject a while back, and I thought I'd briefly run through them again.

As I noted on this blog's very first day, there are powerful reasons to care deeply about whom we're letting into the country, and to exclude people who would do us and our institutions harm. More broadly, while I generally support a fairly open immigration policy, I think there are strong arguments on the other side, and they need to be seriously confronted.

Nonetheless, while unlimited immigration can hurt national security, unduly limited immigration can hurt it, too. There's an old joke about who was the greatest German general of World War II; the answer is Dwight Eisenhower. Likewise, many of the scientists on the Manhattan Project were immigrants — Einstein (who didn't work on the Project but whose letter to Roosevelt helped prompt the American nuclear program), Edward Teller, Enrico Fermi, and many more were the obvious names, but there were many others, too.

Our post-war military success was also notoriously helped by foreign-born scientists (e.g., Werner von Braun). But while that was good tactics on our part, our broader relatively open policy on immigration was also good strategy. No-one knew that Eisenhower's ancestors would have a great general as a descendant. My understanding is that many European scientists were let into the U.S. before World War II without specific concern for their military utility. Likewise, when the U.S. let in Albert Wass de Czege, who had fought in the Hungarian Army on the side of the Nazis, it didn't know that his then ten-year-old son Huba would become a general in the U.S. Army, and apparently a gifted military thinker whose work has been of great value to us.

So when we refuse to let some people come here, or refuse to let them stay, we might be protecting our national security. But we might also be hurting our national security, by denying us the services of someone who may one day greatly help our nation — or, worse yet, by letting some enemy country or movement take advantage of his services. And the same can happen even if we alienate the prospective immigrants in other ways, by making the immigration process too much of a hassle, by making it too hard to come to the country to study or to temporarily work, by questioning visitors or restricting them in ways that make them feel insulted, or by generally getting a reputation as a country that's unpleasant to foreigners.

Again, this is hardly an open-and-shut argument for open borders; and I hope that there's some optimal mechanism that will screen out as many bad immigrants or visitors as possible, while at the same time deterring as few good ones as possible. But it's always important to remember that there are national security costs to tight immigration policies as well as national security benefits.

at Anchor Rising, a new conservative New England blog. I've long liked Jacoby's work, though I don't agree with all of it -- I'm less conservative and more libertarian than he is.

Paul Caron (TaxProf Blog) spotlights the UCLA tax faculty. "The UCLA School of Law made one of the largest leaps in the latest US News survey of tax programs, moving from #25 in 2002 to #6 in 2004. In large part, this move was fueled by the unprecedented hiring of three tax professors in 2003, joining the four tax professors already on the faculty to form one of the strongest tax faculties in the country." These really are first-rate people, and I'm proud to have them as my colleagues.

Stalin statue plan amid protests."

James Dobson, the founder of Focus on the Family is complaining about SpongeBob SquarePants:

In addition to [SpongeBob's] popularity among children, who watch his cartoon show, he has become a well-known camp figure among adult gay men, perhaps because he holds hands with his animated sidekick Patrick and likes to watch the imaginary television show "The Adventures of Mermaid Man and Barnacle Boy."

Now, Dr. Dobson said, SpongeBob's creators had enlisted him in a "pro-homosexual video," in which he appeared alongside children's television colleagues like Barney and Jimmy Neutron, among many others. The makers of the video, he said, planned to mail it to thousands of elementary schools to promote a "tolerance pledge" that includes tolerance for differences of "sexual identity."

The video's creator, Nile Rodgers, who wrote the disco hit "We Are Family," said Mr. Dobson's objection stemmed from a misunderstanding. Mr. Rodgers said he founded the We Are Family Foundation after the Sept. 11 attacks to create a music video to teach children about multiculturalism. The video has appeared on television networks, and nothing in it or its accompanying materials refers to sexual identity. The pledge, borrowed from the Southern Poverty Law Center, is not mentioned on the video and is available only on the group's Web site.

Mr. Rodgers suggested that Dr. Dobson and the American Family Association, the conservative Christian group that first sounded the alarm, might have been confused because of an unrelated Web site belonging to another group called "We Are Family," which supports gay youth. . . .

On Wednesday however, Paul Batura, assistant to Mr. Dobson at Focus on the Family, said the group stood by its accusation.

"We see the video as an insidious means by which the organization is manipulating and potentially brainwashing kids," he said. "It is a classic bait and switch."

This reminds me of a great T-shirt from 1999, when Jerry Falwell complained about Tinky Winky, one of the Teletubbies: "He is purple — the gay-pride color; and his antenna is shaped like a triangle — the gay-pride symbol." (I should say that this wasn't Falwell's invention; apparently Tinky Winky had become something of a gay icon over a year before Falwell made his claim, see for instance this quote from an English academic.) I saw the shirt in the window of a West Hollywood T-shirt store that catered to a gay clientele, and it said:

Tinky Winky Made Me Do It.

How Appealing reports:

In re "blah blah testing yahoo": That's the case name currently present in the listing of "Opinions Issued Today" on the web site of the U.S. Court of Appeals for the Eleventh Circuit.

Update: Someone in the know at the Eleventh Circuit emails:

Howard, I wanted to drop you a quick note in reference to In re "blah blah testing yahoo". The court is in the process of adding a new database for unpublished opinions and a web programmer made a mistake in a script during testing and posted the test opinion to our published opinions instead. The test data has already been removed from the published opinion web site. Thanks for bring this to my attention.

I'd agree that "blah blah testing yahoo" is an accurate description of many unpublished opinions these days.

Yup, that's the sort of error we programmers sometimes make. And it reminds me of something that happened on my first job, 25 years ago this Spring. I started programming early -- at age 10 doing unpaid but real stuff, and at age 12 doing paid work. My first paid job was R&B Enterprises, a real estate company in L.A. My father was working for them at the time, also as a computer programmer, and got me the gig (after they had tried me out for free for several months, which was quite fair).

I was working on an accounts payable system in FORTRAN (an odd language for an accounting system, but there it is), and I like to think I was doing a pretty good job. Of course, after I wrote or changed a program, I had to test it; and there was a special test database which could be used for that, so we wouldn't interfere with the real live data. However, it was easy to accidentally use the real database.

I was testing my change to the invoice entry program, so -- being an APL geek and a Dungeons and Dragons geek -- I entered a "Quote-Quad the Cleric" as a vendor, with what I think was some test address (not my home, if I recall) and a test amount. The program worked well, and I didn't realize I'd accidentally added this to the real database, so I never deleted it.

Several days later, the department manager comes over to tell me that the accounting people were wondering what this invoice was all about, and wanted to check into it before they paid it. I realized I'd entered it into the wrong database, and apologized. I was pretty embarrassed about my sloppiness.

What I didn't fully focus on -- hey, I was 12 at the time -- was that I'd entered an invoice requesting payment of real money on behalf of an utterly fictitious vendor. To accountants, that looks an awful lot like a felony, not just a programmer error. In fact, that's how some embezzlement takes place. Lucky for me, it was "Quote-Quad the Cleric," not exactly the name an embezzler is likely to choose, and a nonexistent address. Still, I can see how some people would have been pretty annoyed . . . . I shudder to think about it now, but I suppose I'm glad that I was mostly oblivious back then.

In any event, I just wanted to say a big "blah blah testing yahoo" to all my fellow programmers, and to the boy I was a quarter century ago.

The Conspiracy just switched to being hosted at PowerBlogs, and I've continued to be very pleased with it. (We've used PowerBlogs to compose posts for months, but we stayed on the UCLA servers until recently.)

Chris Lansdown, Mr. PowerBlogs -- and one reason I like PowerBlogs is that there is a Mr. PowerBlogs who promptly takes care of the few glitches that do exist -- tells me that they've just introduced two new plans aimed at the low volume market: $15 per year for 75 MB/month transfer plus 5 MB disk space, and $25 per year for 200 MB/month transfer plus 10 MB disk space.

If you're starting a small blog, or want to move your existing small blog, that's a really good deal: a cheap service, but reliable and easy to use. Check it out.

James Taranto (OpinionJournal's Best of the Web) and Pejmanesque bust him. Here's the relevant transcript:

Stephanopoulos: You got yourself into a little hot water last month when you said that Judge [sic] Thomas had been an embarrassment to the Supreme Court. Did you go too far there?

Reid: Well, let me say this. I voted against Judge Thomas when he was going to be confirmed as an associate justice of the Supreme Court. Why in the world would I ever vote for that man for chief justice? And probably that's all I should have said.

Stephanopoulos: Because you did go on and say that, you know, you talked about his opinions and said they were poorly written, and you talked about one case, the Hillside Dairy case, where you said his read like an eighth-grade dissertation compared to Justice Scalia's dissent, you said, which was like one from a Harvard graduate. We went back and looked at that, and Justice Thomas's dissent was a simple two sentences, pretty clear to me, and Justice Scalia didn't even have a dissent.

Reid: But here's the problem in the Hillside case. But Justice Scalia did write in that case, and--

Stephanopoulos: But in the majority. Not a dissent.

Reid: Yeah, that's right. But his reasoning was very logical. That's my whole point, and I think that when we have an activist judge like Thomas, who wants to turn precedent on its head, it's not good. And I can give you other cases. The Mitchell case on Fifth Amendment, where he and Scalia wrote differently. I mean, I know opinions. But, again, George, I acknowledge what I should have said: I voted against him the first time and I'm gonna vote against him the second time if he comes up.

Stephanopoulos: And leave it at that.

Reid: Yeah.

But Justice Scalia did not write in Hillside. That's not a controversial proposition: Reid's statement is simply false.

In Mitchell v. United States, Justices Scalia and Thomas did write separate opinions, but here's Justice Thomas's opinion:

Justice Scalia's dissenting opinion persuasively demonstrates that this Court's decision in Griffin v. California , 380 U. S. 609 (1965), lacks foundation in the Constitution's text, history, or logic. The vacuousness of Griffin supplies "cause enough to resist its extension." Ante , at 7. And, in my view, it also illustrates that Griffin and its progeny, including Carter v. Kentucky , 450 U. S. 288 (1981), should be reexamined.

As Justice Scalia notes, the "illogic of the Griffin line is plain" and its historical "pedigree is equally dubious." Ante , at 2. Not only does Griffin fail to withstand a proper constitutional analysis, it rests on an unsound assumption. Griffin relied partly on the premise that comments about a defendant's silence (and the inferences drawn therefrom) penalized the exercise of his Fifth Amendment privilege. See Griffin, supra, at 614; Carter, supra, at 301. As the dissenting Justices in Griffin rightly observed, such comments or inferences do not truly "penalize" a defendant. See 380 U. S., at 620-621 (Stewart, J., joined by White, J., dissenting) ("Exactly what the penalty imposed consists of is not clear"); id., at 621 ("[T]he Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive"). Prosecutorial comments on a defendant's decision to remain silent at trial surely impose no greater "penalty" on a defendant than threats to indict him on more serious charges if he chooses not to enter into a plea bargain--a practice that this Court previously has validated. See, e.g., Bordenkircher v. Hayes , 434 U. S. 357, 365 (1978) (finding no due process violation where plea negotiations "presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution"). Moreover, this so-called "penalty" lacks any constitutional significance, since the explicit constitutional guarantee has been fully honored--a defendant is not "compelled ... to be a witness against himself," U. S. Const., Amdt. 5, merely because the jury has been told that it may draw an adverse inference from his failure to testify. See Griffin, supra, at 621 (Stewart, J., joined by White, J., dissenting) ("comment by counsel and the court does not compel testimony by creating such an awareness" of a defendant's decision not to testify); Carter, supra, at 306 (Powell, J., concurring) ("But nothing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances").[footnote *] Therefore, at bottom, Griffin constitutionalizes a policy choice that a majority of the Court found desirable at the time. Carter compounded the error. This sort of undertaking is not an exercise in constitutional interpretation but an act of judicial willfulness that has no logical stopping point. See Carter, supra, at 310 (Rehnquist , J., dissenting) ("Such Thomistic reasoning is now carried from the constitutional provision itself, to the Griffin case, to the present case, and where it will stop no one can know").

We have previously recognized that stare decisis is "at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Agostini v. Felton , 521 U. S. 203, 235 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. For purposes of this case, which asks only whether the principle established in Griffin should be extended, I agree that the Fifth Amendment does not prohibit a sentencer from drawing an adverse inference from a defendant's failure to testify and, therefore, join Justice Scalia's dissent.

[footnote *] I also agree with Justice Scalia , ante , at 6-7, that Griffin improperly relied on a prior decision interpreting a federal statute to inform its resolution of a constitutional question--an error the Court later repeated in Carter . See Griffin, 380 U. S., at 613-614; Carter, 450 U. S., at 300-301, n. 16.

Nothing at all poorly written or illogical about this, it seems to me.

Actually, if Senator Reid had simply said that he disapproves of Justice Thomas because he's too willing to overrule precedent, that would have been a defensible and factually well-founded position; Justice Thomas, more than any other Justice on the Court, has expressed his willingness to overrule quite a few decisions that he thinks are wrongly decided. James Taranto criticizes that position; perhaps a willingness to overrule unsound precedent is often good. But at least the position would be based on accurate assertions, rather than false ones.

Unfortunately, Senator Reid didn't seem to think it was enough to say that he disagrees with Justice Thomas on the merits of certain cases, or that he disagrees with Justice Thomas on how often precedents should be overruled. No, instead he claims that Justice Thomas has been an "embarrassment to the Supreme Court," "his opinions are poorly written," his opinion (in Hillside) is at an "8th grade" level, and now that Thomas's opinions aren't "very logical" (unlike Scalia's).

Instead of pointing to and justifying an honest disagreement about law or jurisprudence, Senator Reid makes unfounded assertions of incompetence -- and backs them up with false statements (about Hillside) and mischaracterizations (that the "whole point" of his preferring Scalia to Thomas is that Scalia's opinions are "very logical" and Thomas's aren't). There should be cause for embarrassment here, but not on the Supreme Court's or Justice Thomas's part.

I regret to say that my very own University of California is -- in my view mistakenly -- trying to legally pressure the site thedarksideofucsb.com to change its Web address. According to this Pacific Business Times article (the substance of which I've generally verified myself),

On Nov. 10, [the site operator] got an e-mail from Meta Clow, UCSB's policy and records management coordinator, asking him to "immediately remove our initials from your Web site designation."

Clow said Baron was in violation of California Education Code Section 92000, which designates the "University of California" name and all abbreviations, like UCSB, as property of the state. "Anyone violating this provision," Clow pointed out, "is guilty of a misdemeanor."

I talked to someone at the UC about this, and they say they aren't going after the guy because he's critical of UCSB. (I express no opinion on the merits of the criticisms, by the way.) Rather, they say they generally go after people who use UC in their site names, whatever the site's views -- my sense is that UC is chiefly trying to protect its profits from merchandising of UC-related paraphernelia. And the statute might indeed be read to cover the Dark Side of UCSB site:

(a) The name "University of California" is the property of the state. No person shall, without the permission of the Regents of the University of California, use this name, or any abbreviation of it or any name of which these words are a part, in any of the following ways:

(1) To designate any business, social, political, religious, or other organization, including, but not limited to, any corporation, firm, partnership, association, group, activity, or enterprise.

(2) To imply, indicate or otherwise suggest that any such organization, or any product or service of such organization is connected or affiliated with, or is endorsed, favored, or supported by, or is opposed by the University of California.

(3) To display, advertise, or announce this name publicly at, or in connection with, any meeting, assembly, or demonstration, or any propaganda, advertising, or promotional activity of any kind which has for its purpose or any part of its purpose the support, endorsement, advancement, opposition, or defeat of any strike, lockout, or boycott or of any political, religious, sociological, or economic movement, activity, or program.

(b) Nothing in this section shall interfere with or restrict the right of any person to make a true and accurate statement of his or her present or former relationship or connection with, his or her employment by, or his or her enrollment in, the University of California in the course of stating his or her experience or qualifications for any academic, governmental, business, or professional credit or enrollment, or in connection with any academic, governmental, professional, or other employment whatsoever.

(c) Every person violating the provisions of this section is guilty of a misdemeanor.

Nonetheless, as applied to this site, the statute pretty clearly violates the First Amendment. The site is engaged in fully protected speech, not commercial advertising or nonspeech conduct. It doesn't falsely suggest that it's affiliated with UCSB or endorsed by UCSB. It doesn't compete with UCSB for sales of UCSB-licensed products. The site name is constitutionally protected, just as a book called "The Dark Side of UCSB" (even if it's "propaganda" for a "political" or "sociological" "activity") would be protected. See generally Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003), which held that a "sucks" domain didn't violate federal trademark law, but which also stressed that such site names are protected by the First Amendment:

We find that Mishkoff's use of Taubman's mark in the domain name "taubmansucks.com" is purely an exhibition of Free Speech . . . . And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.

In fact, Taubman concedes that Mishkoff is "free to shout 'Taubman Sucks!' from the rooftops...." Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.

See also Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161, 1166-67 (C.D. Cal. 1998); Bosley Medical Institute v. Kremer, 2004 WL 964163 (S.D. Cal. 2004).

I got an interesting press release from the Chronicle about this, and thought some readers might be interested:

Please join The Chronicle of Higher Education for a live, online discussion about a new book, The Torture Papers: The Road to Abu Ghraib (Cambridge University Press), on Thursday, January 20, at 3 p.m., U.S. Eastern time at http://chronicle.com/colloquy/2005/01/torture.

Bush-administration officials were laying the groundwork for the use of torture long before Abu Ghraib, according to a new book. The book, compiled by university researchers, asserts that a policy to extract information from suspected terrorists became a legal rationale for abuse. In a time of war against ruthless enemies, should the book not have been published? Or does it show the importance of the principles that we are defending?

Karen J. Greenberg, executive director of New York University's Center on Law and Security, is a co-editor, with Joshua L. Dratel, a lawyer, of The Torture Papers. Ms. Greenberg, a former vice president of the Open Society Institute, teaches European studies at NYU and is the editor of the Archives of the Holocaust, a scholarly series. Her research focus is the United States and Europe during World War II. She will respond to questions and comments about these issues on Thursday, January 20, at 3 p.m., U.S. Eastern time. Readers are welcome to post questions and comments now, at http://chronicle.com/colloquy/2005/01/torture.

The options given in the second paragraph seem incomplete -- they leave out the otpion that the book should have been published, but that it is permissible to use at least some forms of physical coercion, perhaps including outright torture, to defend ourselves and our principles. But I hope that the discussion will bring all the possible options out.

We also provide the links, because Slate — leading online journal that it is — doesn't.

Here's Slate's Bushism of the Day for today:

"I want to appreciate those of you who wear our nation's uniform for your sacrifice."—Jacksonville, Fla., Jan. 14, 2005

I take it the supposed humor comes from the ambiguity of "sacrifice": Bush was obviously expressing his appreciation of soldiers, because of their sacrifice. (A bit clunky — "thank" would have been better — but "appreciate" is hardly risible here.) But it might also sound to some people like he's appreciating their wearing a uniform to their sacrifice, which brings up visions of "sacrifice" in the sense of "human sacrifice" and death. Maybe I'm wrong, but it seems to me like the only quibble that Slate can have with Bush's line, unless they're trying to make something out of the substitution of "I want to appreciate" for "I want to thank."

OK, here's the context:

[W]e've got a lot on the agenda. Obviously, winning the war on terror is still on my mind. And I want to appreciate those of you who wear our nation's uniform for your sacrifice and for joining our great country's cause of freedom. (Applause.)

Even setting aside the applause, does this sentence really look that silly in context? Or silly at all?

If you think it does look silly, then you wouldn't fault Slate for omitting the context. But if I'm right that most people would find the quote to be much more sensible in context than out of context, then is the Slate excerpt really fair? Yes, it's humor, but it's a humorous dig that's meant to make a serious statement. The question is whether it makes the statement fairly or not.

UPDATE: Several people suggested that Slate is trying to make fun of the "I want to appreciate" -- Bush, the theory goes, is saying that he doesn't really appreciate the soldiers, but just wants to appreciate them. That strikes me as a pretty weak quibble. "Want to" is a pretty commonplace empty filler; "I want to thank" equals "I thank," "I want to suggest" equals "I suggest," "I want to say that . . ." equals "I say that . . ." which really equals nothing at all. (Naturally, sometimes "I want to" does mean "I want to"; it's generally clear from context whether or not it does.)

Like empty filler generally, it isn't elegant, but it hardly seems laughable. No-one says "Ha ha ha, he said 'I want to thank,' which means he isn't really thanking, but just wants to do it and for some reason can't." Likewise, I think, for "I want to appreciate" -- a much less common phrase, but clearly an adaptation of the more common "I want to thank."

Prof. John Q. Barrett passed along a speech by Robert Jackson — then Attorney General, soon to be a Supreme Court Justice. According to Prof. Barrett, "Jackson wrote (as he always did) his own speech for the occasion [Inauguration Eve 1941], but when the big night came he could not attend due to illness. His friend and colleague, Solicitor General Francis Biddle, instead delivered Jackson's speech at Washington's Mayflower Hotel to a crowd of more than 1,500 guests, including the 531 electors, Cabinet members, Members of Congress and State Governors."

Here's an excerpt; there are parts I may disagree with, but it struck me as thoughtful and eloquent enough to be worth passing along:

It is with diffidence and humility that I greet the ultimate constitutional power in the Republic, the Presidential electors.

Presidential electors belong to a land of constitutional make-believe, rather than to the world of practical politics. At law, it is you only - not the people - who can elect a President. At law you can choose as President any native-born citizen, thirty-five years of age and fourteen years a resident of the United States. Legally, you electors were the only candidates last November. Those presumptuous fellows who were doing all the talking had no legal standing at all, and never could have any except by your leave.

With this vast grant of constitutional power, electors have chosen to become merely the faithful proxies of the people. The last time that an elector broke away and voted for anyone other than his party nominee was way back, I believe before 1800. A disappointed partisan is said to have expressed the sentiment: "I chose him to act, not to think." His doctrine has now become unwritten law.

Presidential electors are about the only officials known to man who have not magnified their offices and reached for more power than the law gives them. They should be preserved if only for this example of self-denial. But there is another reason for keeping them. The electoral system is the alibi and chief consolation of a defeated candidate. He can enjoy the sensation of being a near-President by contemplating that a shift of a few votes in strategic states would have turned defeat to victory. And the winner can point out that an equally trifling change the other way would have made his election unanimous. . . .

In these times when all democracy is on trial, it is a welcome sign of your faith and courage that the subject which is assigned to me is "A Progressive Democracy." That is not a defensive title, and it has no defeatist note in it. It rings with hope and challenge. It is only a progressive democracy that can withstand the pressure of the anti-democratic forces which are making a drive for a "new social order" in the world. Hitlerism in fact derives its greatest incentive and consolation from a belief that our democracy has become stagnant, decayed, and degenerated into what Hitler calls a "plutocracy of the money bags." It is on such assumptions that he wars on democracy and promises what he asserts is a better way of life. It is not easy to translate these abstract generalities into terms that admit of a genuine comparison with our own democratic achievements. . . .

[W]e Americans are too often forgetful of the strides made on our soil, in a stumbling way, perhaps, but with a sure direction toward a more just order. In our early days the fight was made and peacefully won to abolish the law of primogeniture by which all property descended to the first-born male. Then our constitutional Bill of Rights summed up and established the most advanced doctrines of human liberty of the eighteenth century. But we did not stop. We moved on to abolish imprisonment for debt — which reform many said would undermine the whole structure of property, but it didn't.

Then we gradually abolished property qualifications for voting and for holding office and extended the franchise to women. We moved into the field of free education for classes to whom it had never before been available and adopted compensation for industrial accidents and regulation of property used in utility services. Now, under the administration of President Roosevelt, we have brought to reality plans for compensation during forced unemployment, support for dependent old age, wider programs of training for youth, vast projects for new housing, for betterment of farm opportunity, for protection of labor by real collective bargaining, and for higher standards of living and protection against depression.

Of course progress is slow. Of course it is accompanied by what at times seems an unnecessary amount of strife and resistance. But the strife under our system is one of conflicting arguments, not conflicting armies; its weapons are reason, not force. And no regime of dictators or monarchs can show so long, so consistent, or so successful a record of gains by the humble and concessions by the powerful as our democratic system has accomplished in peace and order.

It is not wise so to overstate our case for democracy as to discredit it. We have not, of course, nor has any other nation or system, eliminated all injustice, oppression, and discrimination. We have not yet brought to the individual the degree of security and plenty that science and technology make possible. We have not yet full protection against the cycles and caprices of our economic system.

As you know, I have never hesitated to criticize our existing laws and practice or to strive for their modernization and improvement. I believe in reforming to save. Wise repairs are necessary to protect our structure. But let us not in our criticism overlook the fact that nowhere in the world can comparable opportunity for men be found nor comparable dignity and power in citizenship be seen. When we look at what others have accomplished we may feel our own country to be quite exemplary. It is only when we compare our existing situation with our boundless possibilities, that we are critical.

Progressive democracy is the genius of our people. We have become both great and free by holding both to liberty and to order. We cannot retreat if we would. The instinct that submits its grievances and hopes to public opinion, the sportsmanship that accepts the results of elections is bred in our blood and bone.

No course in our opinion is more fatal for any cause than to resort to violence, to excessive pressures, or to means outside the law. I know of no shorter path to oblivion for any American than even to hesitate in his acceptance of a verdict of the people. In these things is our greatness, our security, and our peace. . . .

So, tonight I toast "A Progressive Democracy," not in a partisan sense, though I am proud that my party and the party of my fathers has contributed more to it than any other. I toast a progressive democracy rather as the genius and achievement of our people. It is not perfection and it has not brought perfection. Indeed, that ideal will probably always retreat as we approach it. I toast democracy not alone for what it is, but chiefly for what it may become; not merely for what it has done, but also for what it makes possible for us and our children to do.

Its road to the future leads through discussion, reasoning, persuasion, experiment, trial and error. Progressive democracy does not lead through violence, revolts, or armed coercion. It leaves our destiny with no limitations except those which our own minds impose and no pitfalls except those that might be dug by a failing faith.

It is our heritage and our hope — and we mean to keep it.

Iowa State University bans as "sexual harassment" a wide range of speech, including "derogatory or demeaning comments about women or men in general, whether sexual or not." Saying -- even quite accurately -- that women are genetically less likely to be good at certain things may well be seen as "derogatory or demeaning." (After all, it apparently made some biology professors feel like they were "going to be sick," made their "heart . . . pound[]," presumably not in a good way, made their "breath . . . shallow," and made them "extremely upset.")

Of course, saying that men are more likely (whether for genetic or other reasons) to be violent criminals, rapists, child molesters, sexists, or for that matter fools driven by their genital organs would also be "derogatory or demeaning," and thus sexual harassment.

Fortunately for professors who hold these views, "Interpretation of this policy will give due consideration to the principles of academic freedom and freedom of speech." If you weren't a university President, but just a young academic hoping for tenure, would you get much comfort out of this promise of "due consideration," whatever exactly that means?

Reuters reports:

Moscow plans to erect a new statue of Soviet dictator Josef Stalin . . . .

Since President Vladimir Putin was elected in 2000, a number of Soviet symbols -- including the national anthem and an army flag -- have been restored to use, reflecting widespread nostalgia for Russia's communist years.

But rehabilitation of Stalin, who was denounced after his death in 1953 by the Soviet leadership for encouraging a cult of personality and killing millions of real and imagined opponents, has previously been out of bounds. Statues of Stalin were removed from Moscow's public spaces in the 1960s.

"A monument will be erected to those who took part in (leading the war against Adolf Hitler), including Stalin," Oleg Tolkachev, Moscow's senator in the upper house of parliament, told Ekho Moskvy radio.

Interfax news agency reported earlier that a Stalin monument would also be built in the Belgorod region near the Ukrainian border to mark the Soviet victory against Nazi Germany 60 years ago . . . .

In another sign of Stalin's growing appeal, state television channels have shown a number of prime-time television shows in recent months depicting him in a positive light.

I agree, of course, that Stalin's name shouldn't be erased from histories of World War II (the way that Stalin had erased his enemies from history books). He is to be credited for standing firm against the Nazis, and of course faulted for -- among his many other crimes -- butchering many top military officers in the years before World War II, which surely left Russia more vulnerable to attack. He also let himself be duped by Hitler's assurances of nonintervention.

But it sounds to me like there's more celebration of Stalin here than simple observation that he was the czar when World War II was fought. And that's a bad sign, both for Russia and for the rest of the world.

The Pacific Legal Foundation -- a very good conservative and libertarian public interest law firm in California -- is running its Sixth Annual Program for Judicial Awareness Writing Competition, with $9500 in awards. This year's competition includes three essay questions, two on property rights and one on the Comerce Clause. For more information, see here.

Someone suggested the name "magical legalism" for stories about law or lawyers that are basically set in the real world but with some magical or fantastic twist. (If you're that "someone," e-mail me, and I'll update the post to give you credit.)

Can anyone point me to examples of this genre, in which I suppose my The Love Charm would fit? One classic example, I suppose, is The Devil and Daniel Webster. Any others?

I'm enabling comments, so please post the answers there rather than e-mailing me. Thanks!

Whenever someone says "it's a small world" or some such, I respond with something I heard from a former boss:

It's not a small world, it's a small bourgeois clique.

Maybe it's just me, but I think that's a really cool phrase. I've just now tracked down the person who is its apparent originator -- Deborah Chinn -- and I'd thought I'd pass along both the phrase and the credit.

Reader Tim Gier points me to this story, which he found via DailyKos:

A group promoting an anti-war rally was asked to leave a Broward County park Saturday morning after the park manager said political statements were prohibited on park property. . . . [A] review of the Broward County Code showed no ban on political discussion in parks. . . .

The ACLU and the Green Party were apparently not asked to leave.

Government-owned parks are considered "traditional public fora," in which the government may not restrict speech based on its content (unless the content falls within the narrow First Amendment exceptions, such as deliberate falsehood, obscenity, threats, and the like). The government gets no extra power over such speech because of the government's ownership of the property.

It thus seems pretty clear that the park manager's actions were unconstitutional. It's possible that a city may temporarily rent out its property, including perhaps a park, to a private entity, which could then impose its own rules on this temporarily privatized space; but it seems pretty clear that this isn't what happened here.

My sense is that the government officials who organize events at parks sometimes want to get rid of material that they see as too controversial, since they fear that such material will make the event-going experience less pleasant for some people, and thus drive away potential attendees. (I don't know whether this was this particular park manager's real reason.)

I remember, for instance, a case from when I was clerking, Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc., in which a city-run festival excluded "controversial groups," including a pro-life group and two pro-choice groups. The Kentucky Supreme Court actually upheld this restriction, concluding that the policy was permissible because it was viewpoint-neutral (though the court erroneously called it "content-neutral"). Unfortunately, the Supreme Court declined to hear the case — the Court agrees to hear only 1% to 2% of the cases it's asked to hear, and a refusal to hear the case doesn't mean endorsement of the lower court decision. But Justice O'Connor wrote a dissenting opinion that correctly criticized the lower court's decision. If this matter goes up to the Court again in the future, I'm quite sure that the Court will hold as she urged; and I think that most lower courts (though as we saw in the CARTL case, not the Kentucky Supreme Court) would likewise strike down such policies.

So in any event this sort of exclusion isn't unheard-of — but it's pretty clearly unconstitutional.

Reader Michael Lorton pointed me to The Chaser, by John Collier, which had apparently been made into a Twilight Zone episode. I liked it — short, readable, ingenious, and cruel.

Also, this gives me another chance to mention my favorite short story about love charms, by one of my favorite short story writers, Rudyard Kipling: The Bisara of Pooree. "[T]o work properly, the Bisara of Pooree must be stolen — with bloodshed if possible, but, at any rate, stolen."

UPDATE: OK, I can't help myself; I have to quote some more, which might help illustrate why I so love Kipling's style:

All kinds of magic are out of date and done away with, except in India, where nothing changes in spite of the shiny, top-scum stuff that people call `civilisation.' Any man who knows about the Bisara of Pooree will tell you what its powers are -- always supposing that it has been honestly stolen. It is the only regularly working, trustworthy love-charm in the country, with one exception. [The other charm is in the hands of a trooper of the Nizam's Horse, at a place called Tuprani, due north of Hyderabad.] This can be depended upon for a fact. Some one else may explain it.

If the Bisara be not stolen, but given or bought or found, it turns against its owner in three years, and leads to ruin or death. This is another fact which you may explain when you have time. Meanwhile, you can laugh at it.

I haven't closely followed the debate about whether Lincoln was gay, but this Slate piece suggests that people should view the claim with a grain of salt.

INCLUDING "THE PASSION OF THE CHRIST": The Foundation for Individual Rights in Education has the story.

The college's justification is that apparently some high school students also go to the college part-time, but that seems a pretty poor reason to limit student groups from showing movies on-campus to adult students -- likely the great majority of the audience. (If necessary, the college could insist that the groups card all attendees to make sure they're 17 or over.) Check out the response of the college's lawyer, which disagrees with some of FIRE's allegation but concedes that the college has a no-R-rated-movie policy.

I suspect the policy is constitutional: The college may limit student groups' use of its facilities in viewpoint-neutral ways and the ban on R-rated movies would probably be treated as viewpoint-neutral (though I realize that one could argue the contrary). The ratings aren't legally binding; a theater that lets kids in to R-rated movies couldn't be prosecuted for that. But a college may choose not to open up its classrooms after class hours to such movies.

Also, that the school allowed a seemingly sexually related skit to be performed at a college theater doesn't really undermine the policy's validity. A school can legitimately conclude that R-rated movies are going to be more appealing to underage kids than skits would be, plus the college may feel that it's cost-effective to rely on movie ratings, but too difficult (and too prone to viewpoint discrimination) for the college to make its own judgments about unrated material such as skits.

But that doesn't make the policy sensible or proper for an educational institution. The college may not have aspirations to being a Harvard, but it is a college, in which most of the students are adults.

Community colleges and not just Ivy League schools ought to want to broaden their students' intellectual lives, and to treat their students as grown-ups rather than children. The college's lawyer complains that if the college allowed a broader range of speech, "[o]ne could only imagine the bizarre clubs and activities that would be formed." Heaven forbid that bizarre clubs and bizarre speech be present on college campuses.

Check out the directions that Microsoft's MapPoint gives for going from Haugesund, Norway to Trondheim, Norway. The "quickest" option yields the most amusing result, but "shortest" is good, too.

Thanks to James Tyre (who credits David Flint) for the catch.

The Institute for Humane Studies — which both Sasha and I have been involved in, and which I much like — passes this along:

The Institute for Humane Studies is sponsoring its first essay contest this spring with $5,000 in prizes. . . . The contest is open to all full-time students or anyone 25 years old or younger. Essays must be submitted online by March 1, 2005 and address the following question:

In "The Creative Powers of a Free Civilization," Nobel Prize winner F.A. Hayek posits that only in a truly free society can the creative powers of individuals be maximized. In an essay of 2,500 words or less, please answer the following question:

To what degree are the creative powers of individuals influenced by the structure of the society in which they live? What legal, social, cultural, or educational conditions would be needed to fully realize their creative powers?

Visit www.TheIHS.org/essays for more information and to submit an essay. . . .

who was Attorney General under FDR and whom Roosevelt appointed to the U.S. Supreme Court:

I . . . have been highly desirous of preserving the federalist form and keeping vitality in it. . . . [A]t Nuremberg, it became apparent that until Hitler had broken down the powers of the separate German states and established a completely centralized police administration, he wasn't able to bring about the dictatorship. I think that the philosophy of the Tenth Amendment reserving the undelegated powers to the people or the states ought to be regarded as an essential part of our Bill of Rights, in the sense that our rights are secured and made not merely by the separation of pwoers in the federal government, but by a division of powers between state and federal government.

The decided drift is in favor of a strengthened federal government. I think we should draw a line between the necessity for central regulation of commerce, in the sense of finance and trade, and the necessity for diffused control of such things as affect civil liberties. Because while the federal government occasionally may make a great advance in the direction of civil liberties that the state governments would not make -- at least in some states -- for many years to come, they can also make a very disastrous reversal and do more harm to civil liberties in one administration than a state government could do in a generation . . . . I think the potentialities of a federal, centralized police system for ultimate subversion of our system of free government is very great.

Philip B. Kurland, Robert H. Jackson, in 4 The Justices of the Supreme Court of the United States, 1789-1969 (L. Friedman and F. Israel eds. 1969), at 2543, 2565 (quoting taped interviews with Jackson prepared for Columbia University's Oral History Project). Many thanks to George Liebmann, who quoted these in an American Conservative Union newsletter, for the pointer.

That Justice Jackson said this, of course, hardly makes it right. Moreover, many modern supporters of constitutional restraints on the federal government may disagree with some of what he said (for instance, his support for "central regulation of commerce," if that phrase is understood broadly). Still, it seems noteworthy that even in the heyday of federal power after the New Deal, one highly prominent New Dealer thought that federalism -- in the sense of constitutional constraints on federal power -- was still very important.

Justice Jackson also wrote, in a majority opinion for the Supreme Court (Eisentrager v. Johnson (1950), overruled on other grounds by Rasul v. Bush (2004)) that the Constitution didn't apply to aliens overseas, reasoning that

If the Fifth Amendment confers its rights on all the world . . ., the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. . . .

It thus seems pretty clear that he took an individual-rights view of the Second Amendment (albeit, of course, in an offhanded aside); if he had seen the Second Amendment as securing only the right of states, or the right of members of state-run National Guard units, then his argument as to the right to bear arms, and his analogy to the First, Fourth, Fifth, and Sixth Amendments, would have been absurd: The Second Amendment would simply be a radically different provision than those, and even if the Constitution did apply to aliens overseas, the Second Amendment would have still been inapplicable by its own nature.