Mark Kleiman's post, which has persuaded me to change my views on the advisability of deliberately painful executions also has an excellent discussion of retribution as a goal of punishment. Mark points out that many recent blog posts have argued that retribution -- as opposed to just deterrence, incapacitation, and rehabilitation -- is simply not a legitimate goal of punishment.

Usually the arguments are cast as deprecating "revenge," "vengeance," and the like, and by their nature they are not limited to criticizing deliberately painful executions: They would apply equally to normal executions as well as prison sentences, if the purpose of the sentence is retribution (again, as opposed to the utilitarian purposes of deterrence, incapacitation, or rehabilitation).

Here I've agreed with Mark all along: It seems to me that retribution is a fundamental and entirely morally proper goal of punishment; and deriding it as some atavistic desire for vengeance is a mistake. It is a desire for vengeance, it is indeed psychologically deep-seated, but it is entirely just. Mark makes many excellent observations about this -- read his whole post -- but let me just quote the conclusion:

[V]indication of the victim and the expression of social disapproval of the act both strike me as perfectly sound reasons for punishment, independent of its function in controlling crime. . . .

Perhaps you disagree; if so, you're in the majority, in Blogland though not in the larger world. But if you disagree, then . . . could you explain to me why we kept chasing Nazi war criminals well into the 1990s? Was the Third Reich likely to come back? Were we hoping to deter the next round of mass murderers?

Or if the Nazis are too special a case to deal with, what is the deterrent and incapacitative justification for pursuing Augusto Pinochet? Isn't it obvious that Pinochet's victims deserve to have it shown to the world that what he and his goons did to them wasn't all right?

I think there are only three possible answers to these questions:

(1) We should punish the old Nazis and others, but only because this punishment will indeed "deter the next round of mass murderers." I think this argument is factually extraordinarily implausible -- future Nazis will expect to win the war, though they may realize that they'll die while losing the war, or get executed by outraged enemies shortly after they lose the war. The prospect of possibly being tracked down when in their 60s will be so remote that it will have next to no deterrent effect on their current decisions. That's why I think that these "maybe it'll deter people, but no no no we aren't trying to just exact retribution against them" arguments are usually just a cover for a desire for retribution.

(2) No point in going after these people. They're geezers who aren't going to hurt anyone; let them be.

(3) Track them down and punish them harshly (whether this includes execution, as with Eichmann, or not), because vengeance is morally proper, and perhaps even a moral imperative.

I'm with Mark in favor of #3.

that much as some monsters -- recall that we began with a man who raped and murdered 20 children, and progressed to include Eichmann and various other Nazis -- deserve a deliberately painful death, our society's legal system (no matter what constitutional amendments there may be) can't provide it.

What I found most persuasive about Mark's argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. Even if enough people vote to authorize these punishments constitutionally and legislatively (which I've conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them -- much broader, deeper, and more fervent than the opposition to the death penalty -- that attempts to impose the punishments would logjam the criminal justice system and the political system.

And this would be true even when the punishments are sought only for the most heinous of murderers. It's not just that you couldn't find 12 people to convict; it's that the process of trying to find these people, and then execute the judgment they render, will impose huge costs on the legal system (for a few examples, see Mark's post). Whatever one's abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture.

In any event, I much appreciate Mark's instruction on this. Part of me wishes that I could keep disagreeing, out of sheer bullheadedness. But the fact is that he's right, and I was wrong.

OpinionJournal's Best of the Web reports:

The Associated Press reports that "the snowy weather has taken a bit of a toll" on Connecticut's two casinos:

Officials with Foxwoods Resort Casino said that the casino cleared $67 million from its slot machine customers in February while Mohegan Sun cleared $68 million.

The slot revenues at both were down compared with last year.

In February 2004, Mohegan Sun reported slot machine revenues of nearly $69 million while Foxwoods reported revenue of $68.5 million.

That means revenues were down 2.2% at Foxwoods and 1.4% at Mohegan in February 2005 as compared with February 2004. But given that February 2005 was 3.4% shorter than February 2004, attributing this to the weather makes no sense.

Given that I myself was born bissextile, I find this especially amusing.

BoingBoing writes:

Help defend bloggers' rights to keep their sources secret

As part of the appeal on Apple's legal action to force websites that report on its new products to reveal their sources, Boing Boing will be signing onto a bloggers' "amicus brief." Our lawyer is Stanford's Lauren Gelman, and she needs your help for the brief. She writes:

"I need links to news stories broken by bloggers-- things a court can look at and say 'this looks like what we traditionally think of as journalism.' I am particularly interested in examples of stories based on sources, but any news will do. I will use these both as facts for the brief and I want to attach printouts from the blogs as attachments to it. I'm looking for as many as 50 examples, but I need at least 10."

Email your comments with links to [email protected].

Let me echo the request (though with a reminder to send the examples to [email protected], and not to me). Thanks!

Several people have argued that we should oppose deliberately painful executions because of the risk of slippery slope — even if it's OK to do this to Nazis or people who rape and kill dozens of children, the argument goes, if it's accepted for them it will likely also broaden to other people, both including simple murderers and others who have committed still lesser crimes.

As I've argued in my Mechanisms of the Slippery Slope article, slippery slope effects do often happen — but it's not enough just to say "what about the slippery slope?"; one has to explain the mechanisms that would make the slippage plausible. I point to one such mechanism in my post about arguments against the death penalty, so I think this is something to worry about sometimes. But on balance, I think that this isn't a serious risk here: At least in the U.S., the last two centuries have generally seen a steady movement towards less painful punishments (or at least punishments billed as less painful) and more broadly towards a narrower and narrower set of crimes that can be punished by death.

I'm sure there've been a few moves the other way, but the broad trend is very much in the direction I describe; and it seems to me politically implausible that a decision to allow painful executions for the most heinous of criminals would reverse this trend (though I think such the decision itself would be politically implausible). If I did think there was a serious slippery slope risk here, that would definitely influence my judgment.

see the Mirror of Justice; start with the "Volokh on Pain, Punishment, and Vengeance" post and scroll down. I can't really speak to the theological issues much, but I thought I'd pass the posts along.

The recent exchanges about the deliberate-infliction-of-pain punishments remind me that I've long wanted to write a few thoughts about the death penalty — and especially about why even people who are generally conservativish-libertarianish like me may want to oppose it. I should note at the outset that many people have thought much more than I have about the subject, so I'm not sure how much I can add. Nonetheless, at least some of these points aren't, I think, disucssed as often as they should be.

First, let me mention again that I do support the death penalty, because I think it's the just punishment for sufficiently heinous murders. I'm not sure how much of a deterrent effect it has, and I don't think the financial arguments alone (even if the cost of the death penalty appeals and delays is reduced) suffice to justify it. So the ultimate and in my view adequate justification for it, I think, is retribution.

Nonetheless, I think there are some very important arguments against it. The risk of error, and the irreversibility of error, are two obvious ones. In practice, I think errors in death cases are on the aggregate more likely to be corrected than in life imprisonment cases, because death cases draw much more attention from lawyers, judges, and others. But the availability of new technologies (such as DNA evidence) might change the balance here; likewise, greater acceptance of the death penalty might change the balance, too. In any event, I will set this point aside just because it's so obvious. Let me mention instead three arguments that are less commonly heard, but that conservatives and libertarians should take seriously:

1. The Utility of the Death Penalty as a Means of Silencing Dissenters: The death penalty is an especially powerful tool for repressive governments, because it can let them easily — and with seeming legitimacy — dispose of dissenters. This is so even if the death penalty is limited to murder; they can trump up a charge of murder, and quickly put the dissident to death. Had he been allowed to live, he might have eventually been freed when the government changed, by revolution or just by softening; he might also have become a focal point for public agitation, both in the country and outside it. (That happens to martyrs, too, but under many plausible conditions a live imprisoned dissident attracts more attention than an executed one.)

Now this is likely to matter only to governments in the middle. We don't worry much about decent governments doing this; and the really heinous ones will kill whomever they want no matter what the legal rules surrounding the death penalty have been. Moreover, even if the death penalty is illegal, and an oppressive government cares about legality, it can always change the law. And some oppressive governments may find themselves politically constrained not to use the death penalty for dissidents even if the penalty is actively used for murderers (consider the Soviet Union in the 1960s and later).

Still, one can certainly imagine many governments (1) that are oppressive but not completely unresponsive to popular opinion, within the country or outside it (2) that find it too politically costly to reverse a firm, well-entrenched, and broadly agreed-on no-death-penalty rule, and (3) that would be willing to trump up capital charges to dispose of dissidents even if they aren't willing to just kill the dissidents extrajudicially. When those governments are in power, and they may one day be in power even here, a firm traditional rule that the most they can do is lock up convicted criminals may provide a check on them.

2. The Utility of an Anti-Death-Penalty Rule in Free Countries: Moreover, even if we don't worry too much about possibly oppressive future regimes here — or if we have confidence (whether or not misplaced) that the error rate for the death penalty in our country won't be too great — we may want to discourage the death penalty in other countries, such as emerging but fragile democracies or mildly oppressive autocracies. Even if we trust our system, we may not trust theirs.

Naturally, we could try to persuade them that the general rule should be "No death penalty unless your legal system is really good; yours isn't as good as ours, so you shouldn't have the death penalty, even though we do." We might even believe that this argument is both morally and factually accurate. But it may well be quite unpersuasive nonetheless. The most effective way to deter the death penalty in such countries — a death penalty that, as I argue above, could be a tool for political oppression as well as posing a risk of normal error — might be to have a flat "No death penalty, either in our country or in yours" rule.

Those who are hostile to molding U.S. law to European norms (and who don't think that there's much of a risk of internally oppressive government in the U.S.) might look at it this way: Don't think of abolition of the death penalty as surrendering to European views. Rather, think of it as a tool for us to help protect Europeans the next time some European countries turn internally oppressive.

3. A Precedent for Limiting Government Power: Recall that in the modern state the government has very broad constitutional authority. It can take our property, either because of our crimes or for a variety of other reasons. It can lock us up. It can put is jail for saying certain things (relatively few things in the U.S., but more in other democratic and otherwise liberal countries). It can broadly interfere with our professions and businesses. Maybe it shouldn't be able to, but in fact it can.

The governments or free countries often refrain from exercising these powers, and are often legally constrained in exercising them. But they're always available, either within the existing law or with a few changes to the existing law. People may grow up hearing that they have an inalienable right to liberty, but when they see the world as it is, they recognize that their own countries — whose legal systems and institutions they are generally taught to respect or even love — restrict liberty in all sorts of different ways.

Clear, simple, and consistently adhered-to rules that limit the government's power can help fight this sense that the government is all-powerful. We can't have a clear rule that the government can never lock people up, or can never take their property, or can never restrict their speech, or even can never kill people. But as to killing, we can at least have something close — at least during peace-time, government officials may not deliberately kill people except in actual self-defense (or defense of others) against imminent crime. Both the exceptions (war and self-defense) are intuitively and historically understood. Both involve the most urgent of necessity. The rule isn't perfectly simple (few rules for behavior can be); but it's probably as simple as possible, and if it's broadly accepted and internalized it reminds both the governors and the governed that there are strong limits to legitimate government power.

4. Radical Distrust of Government: Finally, for really hard-core libertarians (and I'm not one), the "risk of error" argument isn't simply "all legal systems have risks of error" or even "we have particular problems in our legal system that magnify the risk of error." Rather, hard-core libertarians believe that government is naturally extremely prone to error, both moral and factual. They believe (and this is an oversimplification, but I think not a gross one) that government posts tend to attract not very good people; that they tend to make good people worse, by a combination of bad incentives and the corrupting effect of power; and that the institutions tend to limit good officials' power to do good, and magnify bad officials' power to do bad.

If this is so, then one might oppose the government-imposed death penalty because government is simply inherently corrupt, and not to be trusted to do anything but the absolute bare minimum to prevent murderers from roaming the streets. (The true anarchists wouldn't even have the government do that, but I'm sticking with hard-core libertarians here.) In fact, one might wonder why many hard-core libertarians do support the death penalty, as in my limited personal experience they tend to do. My guess is that many libertarians believe there's a basic human right to retribution for crimes done to yourself or your close relatives, and that if the government is to take it away from us, it has an obligation to provide us with some government-conducted substitute.

These, it seems to me, are powerful arguments that conservatives and libertarians need to seriously consider. (I stress again that they are only a subset of the arguments in the debate, chosen by me precisely because in my likely idiosyncratic view they're especially likely to be appealing to conservatives and libertarians.)

In the face of these arguments, it seems to me, the strongest reason to support the death penalty is a belief that it is morally wrong to allow some people to live — the view that every day that (say) a mass murderer can live and enjoy life is a continuing wrong to his victims and to the victims' loved ones. That is my strongly held view, and I suspect that it is the reason why most supporters of the death penalty ultimately support it. Yet I must recognize that there are substantial potential practical and moral costs, including costs that especially resonate with me because of my conservative and libertarian views, to accepting this moral imperative.

The New York Times reports:

"Baghdad Burning: Girl Blog From Iraq" is not a very good play, but it's worth your attention for two reasons. It's the only political drama in New York written from the point of view of an Iraqi who lived through the American invasion, and, for better or worse, it inaugurates an entirely new (and seemingly inevitable) theatrical genre -- the blog play.

Thanks to reader Bill Harshaw for the pointer.

(as opposed to the thoughtful arguments I tried to respond to below):

So you think the Bill of Rights is not "Holy Writ?" Nice to see a law professor that doesn't believe in the law.

I would have thought it unnecessary to respond to this argument, but my rule of thumb is that if one person has this view, others do, too. The answer, of course, is that while the law should be followed, it may sometimes be amended. That's the difference between law that is good and important but potentially flawed, and "Holy Writ."

The Constitution has been amended 18 times (once for the first 10, and then for the remaining 17, though one can of course do the count in different ways). Some of the amendments were specifically intended to repeal portions of the Constitution. What's more, the Framers deliberately created a mechanism through which the Constitution can be amended. They themselves realized that the Constitution was not Holy Writ. And the same of course goes for the first 10 amendments of the Constitution. (See here for a post on how parts of the Bill of Rights -- or at least the Bill of Rights as the Supreme Court had interpreted it -- have already been amended or probably amended.)

Naturally, none of this speaks to the wisdom of any particular amendment, or to the possible dangers that one amendment will open the door to other, worse amendments (dangers that I think tend to be overstated, though may in some situations be quite plausible). But it does respond, I think, to the glib or pious sanctification of the Constitution or the Bill of Rights as unamendable Sacred Law that we sometimes hear.

[UPDATE: I have in considerable measure conceded error on this subject, thanks to some very cogent arguments by Mark Kleiman; see here for my explanation.]

I am naturally daunted, as any thoughtful person would be, by the fact that my views on this run contrary to my nation's constitutional regime, contrary to what is seen by most as a worthy long-term trend in the civilization to which I belong, and the views of many people (both on the left and on the right) whom I admire. (My views are also largely pointless, since they can't be implemented in my country without a constitutional amendment that isn't going to happen.) Perhaps I am grievously mistaken, and have fallen victim to unsound emotion or the first flush of fatherhood.

Yet after reading the counterarguments, I confess that I continue to find them quite unpersuasive. I've gotten many more than I can possibly respond to, but I think I have an obligation to respond to some, so let me focus on those coming from Mark Kleiman, Matthew Yglesias, Maimon Schwarzschild, and Clayton Cramer. These are interesting and generally very thoughtful arguments (and I also thank their authors for framing the arguments not just civilly but quite generously, despite their disagreement with my views).

1. Clearing the underbrush. Let me first deal with a few general criticisms that I think are unhelpful here. Clayton quotes Gandhi's "An eye for an eye will blind the world," but while that might be relevant in some situations — for instance, as a warning against ethnic vendettas — it is about as relevant here as "Imprisoning kidnappers will leave the whole world locked up." It tells us nothing about the propriety of various punishments (whether prison, death, or deliberately painful death) for people who rape and kill 20 children.

Likewise, it seems to me that Maimon's analogy to lynch law is misplaced. Lynch law is bad for many reasons: Among other things, it doesn't provide adequate factfinding procedures, it leaves us at the mercy of our neighbors with no legal structure to channel and restrain the neighbors' actions, and it has often been used in racist ways. None of this tells us what punishments may properly be imposed by the legal system, or whether the legal system, in administering the punishment, can allow the victims' relatives to participate — not in deciding who's guilty, but in applying the legal penalty.

2. What about the Nazis? Maimon asks "if you 'execute' the serial killer of twenty children in this way, what do you do to criminals who are worse still? . . . What would Eugene wish the State of Israel to have done with Adolf Eichmann?" Yet this seems to me to support my original point rather than to undermine it. It seems to me an occasion for regret that Eichmann was executed by hanging. Such a decision was likely politically necessary; but I think it slighted the enormity of what he had done. He deserved a far worse death, and it would have been good had he received it.

Likewise, Clayton points to Hitler's having executed the von Stauffenberg coup plotters by hanging with piano wire, and to his having filmed the execution so he could enjoy watching it later. But what makes this bad is that the von Stauffenberg plotters were trying to do something very good. Had things been reversed, my regret would have been that hanging with piano wire didn't inflict enough pain on Hitler (though I would have been glad that he hadn't been turned over to a too-"civilized" government that would have dispatched him with less pain). Seriously, would most of us disagree? Maimon points to George Orwell's criticism of what he saw as the unduly painful hangings of some Nazis after World War II. I find much to admire in Orwell, but I don't share his generosity here (I speak here of the Nazi leaders generally, though recognizing the possibility that some lower-level military officials deserved to live, or even deserved to die painlessly).

Of course, as Matt and Clayton point out, these penalties are obviously inadequate. Like punishment generally, these punishments don't bring back the dead, or even inflict a fraction of the pain that the monsters have inflicted. But one should do what one can, and surely Eichmann et al. offer as strong examples as possible. (In fact, I didn't bring up Eichmann and Hitler in my original post because people could have plausibly argued that one can't really generalize from the abberational cases such as that of the Nazis; but if people bring up Eichmann, I have to acknowledge that my argument applies in spades to him.)

3. Practical effects: Matt argues that deliberately inflicting pain, even on the monsters, would cause bad effects on society: "The natural result of giving official sanction and encouragement to the desire to inflict suffering beyond the amount of suffering that serves a constructive purpose within the context of criminal law will be to encourage people to act on similar impulses (and, indeed, to have the impulses themselves) in non-criminal contexts as well. The result would, simply put, be a social disaster in which individuals are encouraged to nurse grudges, indulge spite and envy, and generally speak wreak havoc upon their fellow man." Maimon agrees.

If I agreed with this empirical speculation, I would come to a different result. But I just don't find it to be terribly plausible. People, it seems to me, have a natural desire to inflict pain on moral monsters. I doubt that the legal system's actions will much exacerbate this desire. If someone raped and killed your child, would your desire for revenge be much altered by what you know of the legal system's rules? I may be wrong, but I doubt it. (I agree that it might be altered by the legal system's threat of punishing you for the revenge, but that's a different matter.)

One can make an equally plausible claim, I think, that people will be less likely to seek private revenge if they think the legal system will impose accurate punishment: They'll both find private revenge less necessary, and will more generally trust and respect the legal system. This is utter speculation, I realize — but so is Matt's empirical argument. My sense is that one's empirical guesses on such things more often follow one's moral judgments rather than vice versa.

Nor have I seen evidence that harsh punishment generally makes society more brutal. The sharp increase in U.S. homicide rates in the 1960s and 1970s, for instance, followed a broad decline in the use of the death penalty. I'm not claiming that the decline in the death penalty caused more brutality; and I agree that death penalty calculated to inflict more pain (even if applied to a very few monsters) is different from the death penalty as such. But evidence such as this leads me to doubt that legal harshness in dealing with the guilty will translate into private harshness.

4. Assuming the Conclusion: There is, however, a deeper objection to Matt's point. Matt argues that it's proper to punish criminals but only to the extent that it "serves a constructive purpose." Presumably he'd think that incapacitation, deterrence, and rehabilitation are three such constructive purposes; a deliberately painful death penalty will add nothing to incapacitation or rehabilitation, and I'll also assume that it adds little to deterrence.

But in my view retribution is also a constructive purpose. This is most easily seen if we for a moment set aside deliberate infliction of physical pain, and even the death penalty. Consider a scenario where punishment will do little to prevent future crime: For instance, the imprisonment of Nazis who committed their crimes decades ago and are now in their 60s or 70s. There's little need to incapacitate them as a means of preventing future crimes and little likelihood of rehabilitating them. Nor will it do much to deter future atrocities, I think. If people are deciding whether to participate in a future Nazi regime, they'll probably be much more worried that they'll just get killed in the war, or killed shortly after the war by people seeking revenge. I doubt that many would-be Nazi war criminals in 1941 would have been deterred by the risk that some decades later, when they're old men, they'll be tracked down. No, the real reason it was right to punish them was retribution (as Mark points out).

In my view, painful death for certain monstrous acts is the proper level of retribution — anything less is inadequate, just as a slap on the wrist would be inadequate for an armed robber, or a short jail term would be inadequate for a rapist. Therefore, such a punishment does serve a constructive purpose — the purpose of retribution. Matt may disagree that retribution is a constructive purpose, or he may disagree that painful death is the proper level of retribution (he may think it's too much). But his argument doesn't demonstrate any of these points. Rather, it rests on the assumption that a painful death penalty for monsters doesn't serve the constructive purpose of retribution or that retribution isn't a constructive purpose, which are the very things he was trying to prove.

5. Humanity: Likewise, I think, with Mark's argument that deliberate infliction of pain, even on monsters, "makes the person who engages in it a little bit more of a beast, and a little bit less of a human being, than he would otherwise be." First, we should recognize that this is a metaphor; I may be mistaken, but my sense is that most literal beasts (i.e., animals) don't actually try to inflict pain as punishment for wrongs. Literally speaking, this desire is quite characteristic of human beings (though perhaps some other higher primates might be included; I'm not sure). This doesn't make Mark's argument wrong, but only shows that we need to look behind the metaphor.

So what's behind the metaphor? It could be a judgment that it's beastly, less-than-human, and thus morally improper to succumb to our visceral emotional impulses. But I don't think that's what Mark literally means. Love, empathy, the desire to pick a mate, the desire to have children, and other worthy emotions are also visceral emotional impulses; while we should certainly indulge in them with rational caution and care, there's nothing wrong in following emotions, and it's sometimes bad to resist them.

I take it, then, Mark's point is that it's beastly, less-than-human, and improper to indulge this particular emotion. But that too, I think, assumes the conclusion. When someone rapes and murders twenty children, why is it a "beastly" impulse as opposed to a worthy one to try to exact a harsh retribution? Mark acknowledges that retribution in general is a proper goal of punishment — but his argument doesn't, I think, explain why this particular sort of retribution is not. (To be fair, he does say "in my eyes, at least" — here we may be returning to a point I mentioned in my original post, which is that a lot in this debate rests on people's visceral moral intuitions.)

6. Risk of Error: Mark also points to the risk that we might be wrong, a risk I briefly discussed in my earlier post. His Torquemada analogy doesn't work for me — I think that we'd have contempt for Torquemada even if he had simply painlessly executed insincere coverts, rather than burning them at the stake, or even if he had locked them up for life. Conversely, had he burned at the stake people who had raped and murdered 20 children, we probably would barely remember him. Our condemnation of him is based on disagreement with his substantive moral judgment about the crime; and I think we'd say that the risk of such moral error about what's guilty conduct is indeed different from the risk of factual error about who's guilty of it.

Nonetheless, I admit that all human institutions have a capacity for error, and wrongfully inflicting deliberately painful death is indeed a more serious error than wrongfully inflicting painless death, or wrongfully imprisoning someone for life. The question is how this risk of error balances against the moral imperative for retribution. This is a question that defenders of the death penalty must ask themselves. (I doubt that the death penalty as currently administered has much of a deterrent effect; I think it's justified because some people deserve to die, and it's unfair to their victims and the victims' families not to execute those people.) It's likewise the question with regard to deliberately painful death penalty.

One can certainly reach a different judgment than I do: Even if one thinks there's some moral benefit to executing the Eichmanns or even the serial rapist-killers, one might say that the benefit is small enough that it's exceeded by the risk of error, and the very serious moral cost of that error. As I mentioned at the outset, I am keenly aware that I may be wrong on this general question, and the matter that causes me the most trouble is precisely this one. Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment.

In any event, I have gone on at ridiculous length. Yet, as I mentioned above, I think respect for those particular people who disagree with me on this, and broader respect for the weight of moral authority against which I'm pushing, required me to provide some response. I hope even those who disagree with me have found these arguments to be candid, clear, and fair to those whose arguments I'm trying to rebut. And perhaps the arguments may be helpful even to much more pragmatic debates, such as those about the death penalty generally, and about retribution still more generally.

The Foundation for Individual Rights in Education reports:

The [Muslim Student Association]’s difficulties [at Louisiana State University] . . . was told [in Fall 2003] that a new policy required all student organizations to revise their constitutions to explicitly state that they would not deny membership on the basis of a list of criteria including “religion” and “sexual orientation.”

After discussions with administrators, the MSA decided it could not include any language in its constitution that was inconsistent with its desired expressive purpose and was therefore unable to attain official recognition. Over the course of a year, the group effectively lost all of its privileges to reserve and use on-campus facilities, to distribute literature, and to enjoy other benefits normally granted to officially recognized student organizations. . . .

Fortunately, LSU has reversed course, apparently with a good deal of nudging by FIRE. A victory for actual diversity, in the sense of a university environment in which groups with very different views and approaches to life can effectively convey their views.

UPDATE: Reader Shlomo Rubin writes that: "FIRE also appear to overstate their case when they assert that without registered status, the group cannot distribute literature. I read the exchange of letters between FIRE and LSU at FIRE's web site. In the Letter from LSU Dean of Students Kevin Price to FIRE, November 22, 2004, Kevin Price denied that one has to be registered to distribute literature. In the reply to Mr. Price, FIRE states that the group was prevented from setting up its weekly 'Dawah Table' in the LSU Union. (Dawah is a term that is used by Muslims for the proselytizing to non Muslims.) I assume they would have given out literature that the 'Dawah Table.' However, the press release implies that there is a ban on non registered groups distributing of literature, and not that they limited from doing so in a particular time and place." I'm not sure about these details, but I thought I'd note the issue for readers. The basic thrust of FIRE's argument, I think, remains sound.

Cathy Seipp has an interesting, original, and highly readable piece on the subject.

Rick Duncan points to some. I don't get as upset by this as some people -- if an employer can keep its employees happy by giving them a fancy title instead of a pay raise, then it sounds like good management to me. Still, some of these are indeed mighty silly.

Slate's Chatterbox column is running a new series called "The Fleischer Watch" -- "an ongoing inquiry into dishonest or insane assertions buried inside Ari Fleischer's White House memoir." Here's the first item, posted Tuesday:

In his new book, Taking Heat: The President, the Press, and My Years in the White House, Ari Fleischer, the former White House press secretary, lays out various "biases and predilections" of "the liberal press." Among these is its 'belief that government is a mechanism to solve the nation's problems," its insistence that "emotional examples of suffering … are good ways to illustrate economic statistic stories," and its tendency to stay "fixated on the unemployment rate." Fleischer might just as well have complained that the press believes the Earth revolves around the sun.

At risk of belaboring the obvious:

1. If the government doesn't exist to solve problems, what the hell do we have it for? We can argue about the particular problems government should solve, and about how successfully government addresses them at any given time, but not, I think, about whether government should be in the problem-solving business.

2. Un-picturesque though they may be, people do tend to suffer when the economy is faltering, as it did throughout the period covered in Fleischer's memoir. If a lagging economy didn't cause people to suffer, there would be no great reason to keep track of the economy at all. Anecdotes about individual sufferers help the public understand in a concrete way what it means to have a weak economy.

3. The principal way people suffer when economic growth is weak or nonexistent is by losing their jobs. The statistic that keeps track of the people who lose their jobs is the unemployment rate (at the moment a so-so 5.4 percent). Fleischer doesn't want the press to focus on the "micro" story of individual suffering, but neither does he want the press to focus on the "macro" story of economic statistics. In effect, Fleischer is saying that it's unfair for the press to cover the economy at all.

Now unfortunately the column doesn't point to the page number on which the quotes appear, so if they appear in more than one place the following might be mistaken. Still, if the quotes are indeed to p. 100 of the book, then the mistake -- or rather mistakes -- seem to be Slate's.

Page 100 starts with the heading "The Liberal Press?," and is followed by a page-long block quote. On the top of page 101, Fleischer says "That's what ABC News said in its influential daily newsletter The Note on February 10, 2004, in a breathtakingly frank and rare internal assessment of the journalism business. The public largely agrees."

1. So already we see something odd about the Slate column: It doesn't even mention that the quotes aren't composed by Fleischer, but actually come from The Note (I think they've been credited elsewhere to The Note's editor, Mark Halperin). Now Fleischer does seem to be endorsing the quote in considerable measure. But when people quote a page of material, they don't always completely endorse every clause. Surely it would have been helpful for Slate to have mentioned that the "dishonest or insane" material statements aren't Fleischer's, but rather someone else's and were simply quoted favorably by Fleischer. Or am I missing something? (Incidentally, if you want to read the quote, the original is here.)

2. There's more. Slate derides Fleischer's complaint about the press's "insistence that 'emotional examples of suffering … are good ways to illustrate economic statistic stories.'" Believing that such emotional examples are good ways to illustrate stories is as normal and sensible, the item says, as "believ[ing] the Earth revolves around the sun."

But the material that Fleischer quoted says that the press believes "that emotional examples of suffering (provided by unions or consumer groups) are good ways to illustrate economic statistic stories." Slate simply replaced the parenthetical with ellipses. Yet is believing that emotional examples provided by unions or consumer groups are good ways to illustrate stories the same as "believ[ing] the Earth revolves around the sun"?

Is it "insane" (even allowing for some hyperbole on Slate's part) for Fleischer to think that the press shouldn't rely on examples provided by interest groups? Perhaps the interest groups are providing examples that are unrepresentative, or that are in some way spun or incompletely described. Or perhaps not -- perhaps relying consistently on examples provided by interest groups is just fine. But isn't there some difference between complaining about the press's using emotional examples as such, and complaining about the press's using emotional examples provided by interest groups? And if there is such a difference, shouldn't Slate have kept the parenthetical?

3. Quoting the three small items from the whole page, it seems to me, fails to do justice to The Note's criticisms. Thus, The Note quote said:

[The press] does not accept the proposition that the Bush tax cuts helped the economy by stimulating summer spending.
It remains fixated on the unemployment rate.

4. Finally, there are the substantive weaknesses of the "Fleischer Watch" (i.e., Halperin Watch) critique: For instance, when The Note criticized the "belief that government is a mechanism to solve the nation's problems," I take it that it wasn't saying that "government doesn't exist to solve problems" -- rather, it was criticizing the belief that government is an effective mechanism to solve the nation's problems, or that the government is a mechanism to solve all or most of the nation's problems. Perhaps The Note put the point more ambiguously than it should have (though Fleischer understandably quoted the ambiguous and less effective parts alongside the clearer and more effective parts). But it seems that Chatterbox resolved the ambiguity by using the least plausible and most unfavorable interpretation.

Naturally, my complaints 3 and 4 are less significant than complaints 1 and 2. But when I put them all together, it seems to me that this inaugural post in the Fleischer criticism series says more negative things about the critic than about Fleischer.

Finally, one note: Because the block quote on p. 100 occupies the whole page, it's possible to at first glance miss the fact that it's a block quote. It does have a ragged right margin, unlike the rest of the text, and if you look closely through the sheet, you'll find that the left margin is indented relative to the left margin on the preceding sheet; but a first look could indeed fail to grasp this. But on second glance, one would find that the very next paragraph, on top of p. 101 begins with "That's what ABC News said in its influential daily newsletter The Note on February 10, 2004"; and a quick search would confirm that the block quote is indeed a block quote.

I'm very pleased that the Bushisms column has finally started linking to the original source for the alleged Bushism, so that readers can determine for themselves whether the quote is accurate and in context. Still, I can't figure out what the Bushisms author thinks is the problem with today's quote:

"In this job you've got a lot on your plate on a regular basis; you don't have much time to sit around and wander, lonely, in the Oval Office, kind of asking different portraits, 'How do you think my standing will be?'" — Washington, D.C., March 16, 2005

Is the supposed inarticulateness the mild mismatch between "sit around" and "wander," because wandering requires standing, not sitting? I take it that Bush was using "sit around" as partly figurative — when you're asked what you did Sunday, and you say "I sat around the house," your behavior need not have been limited to physical sitting — and partly as one activity in a set of activities: You can spend part of your time sitting around brooding and part wandering lonely, talking to portraits. Is it that he should have said "What do you think my standing will be?" instead of "How?"

Just a bit more context: Bush was asked a question about whether he felt vindicated by recent events; he gave a serious answer, but understandably felt that it would be better if leavened with some impromptu humor. So he told a little off-the-cuff joke, which the audience seemed to like (you can hear laughter, and I doubt that they were laughing at the sit around vs. wander problem on the how vs. what). Articulate, educated, intelligent readers of mine: Are all your extemporaneous jokes marvels of perfect word choice? Friends of Slate writers: Are all their extemporaneous jokes immaculately crafted?

Just what in Bush's quote is deserving of mockery?

UPDATE: Some readers suggested that Bush was actually saying "sit around and wonder" rather than "sit around and wander"; it's possible, but I think he was indeed talking about wandering around the oval office talking to the portraits that are presumably hanging on the wall -- it makes more sense that you'd wander around to talk to them. Other readers suggested that Bush was alluding to Wordsworth's "I wandered lonely as a cloud"; that's also possible. But even if neither theory is correct, my point still stands: There's nothing worth mocking in what Bush was saying.

[UPDATE: I have in considerable measure conceded error on this subject, thanks to some very cogent arguments by Mark Kleiman; see here for my explanation.]

I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there's a good explanation.

I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

And, yes, I know this aligns me in this instance with the Iranian government — but even a stopped clock is right twice a day, and in this instance the Iranians are quite correct.

UPDATE: I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I'm not an expert on the history of the clause, but my point is that the punishment is proper because it's cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.

Naturally, I don't expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don't think it's holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they'd be highly unlikely.

In any event, there's nothing unconstitutional about letting victims' relatives participate in the execution; it's only the use of cruel means that would require an amendment.

FURTHER UPDATE: Strange Doctrines writes:

I know what Volokh means. There's a part of me too that would desire to meet savagery with savagery.

But there's another part of me that knows my humanity would be substantially diminished did I indulge my phant'sy for revenge. . . .

Naturally, people on the other side are likewise unpersuaded by my views; I can't prove the soundness of my position any more than (I think) the other side can prove the soundness of its. In this area, we quickly come down to moral intuitions and visceral reactions. And, who knows, perhaps mine are wrong. But mere appeals to my humanity just don't do much for me.

AND WHILE WE'RE AT IT, ANOTHER RESPONSE TO A COUNTERARGUMENT: A couple of people pointed out the risk of error; and it's always possible that we're going to convict the wrong man. That's a decent argument against the death penalty generally, though I'm not persuaded by it. And it's certainly a great argument for fixing problems that may increase the risk of wrongful conviction — locking up the wrong man for life isn't much better in my book than executing the wrong man, especially since the chances of exonerating the wrongfully convicted lifers are, I suspect, pretty low.

But I don't see it as much of an argument for a painless execution as opposed to a painful one, or an execution by anonymous bureaucrats rather than one in which the victims' relatives participate. It's something of an argument, and I do think that there should and probably would be a higher threshold of felt certainty required on the jurors' and perhaps even reviewing judges' parts, just as I suspect that in practice most jurors today require a higher level of certainty to vote for a death sentence than for other sentences. But it doesn't, in my view, carry the day against the counterargument outlined in my original post.

BACK TO THE FIRST UPDATE: Dan Glick writes:

I can only shake my head at the different ways that people view the world. Volokh doesn’t even attempt to logically justify his opinion, other than by an appeal to ‘justice’, that disgustingly noble coating with which nature has covered our instinct for revenge. I challenge anyone to look at this picture and tell me that the Iranians are better people or a better society for punishing a man that way, no matter what his crimes.

So, look at the picture; read even the doubtless sanitized description of the facts; decide for yourself. I doubt that the Iranians are better or worse people or a better or worse society for punishing this man this way — serial killings are rare enough that I doubt the punishment of serial killers has much of an effect of the society. But I do think that the Iranians are in this one respect more just than those societies that let serial killers live, and even slightly more just than those who execute serial killers in a supposedly "humane" way.

STILL FURTHER UPDATE: Clayton Cramer and Maimon Schwarzschild disagree; I'm not persuaded, but I think their posts are thoughtful and eloquent statements of the contrary view.

Dahlia Lithwick (Slate) has an excellent piece on the subject, as does Anne Applebaum (thanks to InstaPundit for the latter link). Here's a particularly interesting excerpt:

There are at least a dozen ways to parse and think through the acknowledged underrepresentation of women opinion writers, and yet -- to the extent that we are having a national conversation on the topic -- it is a conversation so far almost wholly lacking the voices of men. . . . The smartest male columnists in the country . . . are not willing to turn that massive store of their brainpower to the equally hard issue of what an opinion page is meant to represent; whether the gender discrepancy here is due to prejudice, socialization, or innate differences between men and women, or some combination thereof; and whether, beyond the crude tools of affirmative action, there is any useful remedy.

Perhaps male columnists are just not interested in this issue because it doesn't represent the sort of "hard news" they're used to commenting on. More likely, they are terrified to opine on the debate because the inquiry is so fraught with the possibility of career-terminating levels of politically correct blowback -- a la Larry Summers -- that they deem it better to hold their tongues and wait for the storm to pass. Imagine a man writing, as Dowd just did, that women want to be "liked" whereas men don't care. I can already smell their scorched Dockers. . . . Imagine a man writing, as did Applebaum, that this is all a storm in a teacup; the sort of trivial bean-counting that is insulting and degrading to women. (Clarence Thomas is routinely characterized as beyond loathsome for making that argument against affirmative action.)

And so a clutch of women are left on the pink margins of the page, to wring our hands and, well, discuss among ourselves. The subtext will thus remain that anyone choosing to speak out on this is somehow hysterical or overemotional; that this is not a "serious" problem since serious people (i.e., men) aren't addressing it. All of which practically guarantees that nothing will be done about defining, measuring, or redressing the issue in the long term. . . .

Sure enough, our library doesn't yet have it, and I don't have the time today or tomorrow to go out myself to pick it up. If any of you do have the book, and could possibly fax me pp. 99-101, to 310-267-0158, I'd be very much obliged. Many thanks!

Last week, a federal district court held that a high school student couldn't be stopped from wearing a T-shirt that reproduces the Marine creed:

My Rifle
The Creed of a United States Marine
This is my rifle. There are many like it, but this one is
mine. My rifle is my best friend. It is my life.
I must master it as I must master my life.
My rifle, without me, is useless. Without my rifle, I am
useless. I must fire my rifle true. I must shoot
straighter than my enemy who is trying to kill me. I
must shoot him before he shoots me. I will . . .

School authorities forbade this T-shirt on the grounds that it was "inappropriate for the educational setting," apparently because it violated the school dress code, which barred "apparel depicting . . . symbols of violence." The court concluded that the prohibition on such apparel is generally constitutional (I'm not sure that's right given the Supreme Court precedents on K-12 student free speech, but apparently the Seventh Circuit, in which the court and the school are located, has a narrower view of the precedents than do other courts), but that it's unconstitutional as applied to this particular shirt.

Seems to me that the court got it right, and that the school officials got it wrong. And they got it wrong because they made a basic error that's unfortunately far too common: They confused violence with wrongful violence.

Using guns to kill innocent classmates is obviously a heinous crime. Using a gun to defend yourself is perfectly proper. An American Marine's using guns to kill the enemy is a necessary (though sometimes regrettable) duty. And while we should generally want to create a culture of law-abidingness, a culture of pacifism — or a culture in which the Marine Creed is treated as the equivalent of gangsta rap — is a recipe for national disaster.

or, Journalists Unclear on the Concept: Mellow-Drama points to this Washington Post article excerpt:

[Justice Scalia] also showed there is no danger of him succumbing to the whims of political correctness. Discussing a case about the BMW painting process, he surmised that the vehicles' coating is "baked seven times in ovens deep in the Alps by dwarves."

Uh, I don't think he was talking about short people; it may be a Norse mythology reference or it may be a Tolkien reference, but I'm pretty sure it's nothing that merits being labeled (whether positively or negatively) as politically incorrect.

UPDATE: Reader David Leon Gil suggests this might have been a little absurdist joke on Milbank's part: "I think that Milbank heard Scalia's line and thought it was amusing. To introduce it, he played on people's expectations that Scalia would say something mildly inflammatory, hoping to get a laugh because it's ridiculous to think that speaking ill of mythical dwarves is politically incorrect." Quite possible.

Slate's Chatterbox apparently has a new feature called "The Fleischer Watch," "an ongoing inquiry into dishonest or insane assertions buried inside Ari Fleischer's White House memoir." The first item is:

In his new book, Taking Heat: The President, the Press, and My Years in the White House, Ari Fleischer, the former White House press secretary, lays out various "biases and predilections" of "the liberal press." Among these is its 'belief that government is a mechanism to solve the nation's problems," its insistence that "emotional examples of suffering . . . are good ways to illustrate economic statistic stories," and its tendency to stay "fixated on the unemployment rate." Fleischer might just as well have complained that the press believes the Earth revolves around the sun.

At risk of belaboring the obvious:

1. If the government doesn't exist to solve problems, what the hell do we have it for? We can argue about the particular problems government should solve, and about how successfully government addresses them at any given time, but not, I think, about whether government should be in the problem-solving business.

2. Un-picturesque though they may be, people do tend to suffer when the economy is faltering, as it did throughout the period covered in Fleischer's memoir. If a lagging economy didn't cause people to suffer, there would be no great reason to keep track of the economy at all. Anecdotes about individual sufferers help the public understand in a concrete way what it means to have a weak economy.

3. The principal way people suffer when economic growth is weak or nonexistent is by losing their jobs. The statistic that keeps track of the people who lose their jobs is the unemployment rate (at the moment a so-so 5.4 percent). Fleischer doesn't want the press to focus on the "micro" story of individual suffering, but neither does he want the press to focus on the "macro" story of economic statistics. In effect, Fleischer is saying that it's unfair for the press to cover the economy at all.

Now I'm curious what exactly Fleischer said in the book, but I'm afraid the UCLA library doesn't yet have it. If any of you have it, can find this page, and would be able to fax it or scan and e-mail it to me, could you please let me know? My e-mail address is volokh at law.ucla.edu, and if you want to fax it, I'll e-mail you my fax number (I don't have it at my fingertips right now).

To foreshadow why I'd like to see this: The quotes originally appeared in ABC's The Note (and I believe were credited to Mark Halperin):

Like every other institution, the Washington and political press corps operate with a good number of biases and predilections. . . .

They include a belief that government is a mechanism to solve the nation's problems; that more taxes on corporations and the wealthy are good ways to cut the deficit and raise money for social spending and don't have a negative affect on economic growth; and that emotional examples of suffering (provided by unions or consumer groups) are good ways to illustrate economic statistic stories. . . .

[The press] does not accept the proposition that the Bush tax cuts helped the economy by stimulating summer spending.

It remains fixated on the unemployment rate. . . .

I therefore assume that Fleischer was quoting Halperin. And this makes me wonder: Is Noah really claiming that Halperin is dishonest or insane? Might Fleischer's statements make some sense, if read in context and sensibly interpreted? And where did the ellipsis in "emotional examples of suffering . . . are good ways to illustrate economic statistic stories" first appear? After all, complaining that the media use "emotional examples of suffering (provided by unions or consumer groups) are good ways to illustrate economic statistic stories" (Halperin's original words, though with emphasis added by me) is hardly tantamount to complaining that the media believes the Earth revolves around the sun.

OpinionJournal's Best of the Web points to this remarkable Harvard Crimson editorial:

Dean’s office, and all 12 House Masters, a new student service is sweeping onto campus. Dormaid, founded by Michael E. Kopko ’07, is a cleaning service that allows students to avoid the perennial problem of dingy, smutty, questionably-habitable rooms. But as appealing as the thought of a perpetually tidy room may be, . . . Dormaid could potentially mess up as many rooms as it cleans. By creating yet another differential between the haves and have-nots on campus, Dormaid threatens our student unity. . . .

A service like Dormaid can bring many levels of awkwardness into this picture. For example, do two people sharing a double split the cost? What if one wants the service and the other does not? What if one cannot afford it? Hiring someone to clean dorm rooms is a convenience, but it is also an obvious display of wealth that would establish a perceived, if unspoken, barrier between students of different economic means.

Of course, the cleanliness of one's room is a lot less obvious than the clothes one wears; and cost-splitting concerns arise when friends decide what restaurants to go to together, or even which ski trips or the like to take together. How about mandatory uniforms for Harvard students, then? Or a ban on off-campus eating? Or a prohibition on pleasure trips? How about barring students from buying nice things for their dorm rooms?

In any event, it looks like the fanatical pursuit of equality is striving for a new equality -- the equality of filth.

What are the only crimes listed by name in the Constitution and its amendments (as opposed to by class, for instance as "crimes" or "felonies")? I realize that there's some ambiguity here, but I think the answers are pretty clear (which is my way of warning people that I won't be taking the time to respond to definitional arguments on this).

When the United Auto Workers had to make this choice, which did they choose? Why, expressing hostility to President Bush:

[T]he UAW International will no longer allow members of the 1st Battalion 24th Marines to park at Solidarity House if they are driving foreign cars or displaying pro-President Bush bumper stickers.

"While reservists certainly have the right to drive nonunion made vehicles and display bumper stickers touting the most anti-worker, anti-union president since the 1920s, that doesn't mean they have the right to park in a lot owned by the members of the UAW," the union said in a statement released Friday. . . .

The UAW was surely within its legal rights -- the parking lot was its property, and as best I can tell the UAW was doing the marines a favor by letting them park there. (Even if it was charging them, it's free to exclude them, unless some contract says otherwise.)

But it strikes me as a petty and intolerant decision, as well as a politically foolish one. One of the great features of American political life is that by and large Republicans and Democrats tolerate each other; they don't refuse to be friends with people of the other party, don't refuse to hire them, and don't retaliate against polite expressions of the other side's political views.

More importantly, these were marine reservists, people who are helping protect our country. The UAW had to decide which was more important to it: Sticking by its political policy -- a policy whose only purpose and effect is expressing political hostility -- or expressing support for our nation's defenders. The effect of either step would be mostly symbolic. You can see the symbolism the UAW decided to send.

Fortunately, the UAW quickly relented:

Statement by UAW President Gettelfinger on Marine reservists parking at UAW headquarters

“I have reconsidered and reversed my decision not to allow Marine reservists to park non-union made vehicles or vehicles displaying Bush stickers at Solidarity House on weekends.

“Some people may have thought my orginal decision reflected a lack of support for the Marine Corps and the service of Marine reservists.

“That certainly was not my intention. Having served in the Marine Corps Reserves myself, I fully appreciate the sacrifices and contributions made by America’s reservists, National Guard members and active duty military personnel and their families.

“That said, I made the wrong call on the parking issue, and I have notified the Marine Corps that all reservists are welcome to park at Solidarity House as they have for the past 10 years.

“I regret that the controversy over this decision has overshadowed the many good things the UAW and our members are doing to support and express our appreciation to America’s service men and women and veterans.”

It's to President Gettelfinger's credit that he corrected his error -- but he did so after, and I would guess because of, a considerable amount of local media coverage, which was likely highly negative. It would have been far more to his credit if he hadn't made the error in the first place.

As I note below, a California trial court has just held that the California opposite-sex-only marriage requirement is unconstitutional; and part of its argument -- though only part -- was that it violated the ban on sex discrimination in the state constitution, since the opposite-sex-only rule necessarily discriminated based on sex. (Eve can marry Adam, but Steve can't; the only difference between the two is that Eve is a woman, the opposite sex from Adam's, and Steve is a man.)

This leads me to repeat a point that I raised when one of the Massachusetts Supreme Judicial Court judges made a similar argument in 2003. Consider these quotes:

1. "What foes of ERA contend were valid arguments and what advocates claim were emotional scare tactics also seemed to sway sentiment among the women against the amendment [in North Carolina]. Opponents, for example, suggested passage of ERA would mean abortion on demand, legalization of homosexual marriages, sex-integrated prisons and reform schools -- all claims that were hotly denied by ERA supporters." U.S. News & World Report, Apr. 28, 1975.

2. "Discussion of [the ERA] bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms, encourage homosexual marriage, put women in the trenches and deprive housewives of their husbands' support." N.Y. Times, July 5, 1981 (excerpt of a book by Betty Friedan).

3. "The vote in Virginia [against the ERA] came after proponents argued on behalf of civil rights for women and opponents trotted out the old canards about homosexual marriages and unisex restrooms . . . ." Wash. Post, Feb. 19, 1982 (column by Judy Mann).

There are many more examples from that era, including, if I recall correctly a quote from leading constitutional law scholar Larry Tribe. (By the way, I have no reason to doubt the sincerity of these claims; my post refers solely to their inaccuracy.)

Yet it now looks like the "hysterical" "emotional scare tactic" "canards" may well have been quite reasonable predictions: It looks like courts are indeed treating opposite-sex-only marriage rules as involving sex classifications, and as thus being presumptively unconstitutional. Had the ERA been enacted at the federal level, it would have further raised the bar against sex classifications, and thus made decisions like the California and Massachusetts one more likely.

True, the U.S. Supreme Court has itself interpreted the federal constitution as presumptively prohibiting sex discrimination, even without the ERA. Federal courts may still use that as an argument to reach the same result as the California trial court did, again even without ERA. (The California trial court's decision was based on California constitutional law, which is largely based on a general "equal protection" provision of the state constitution -- one whose text is similar to the federal Constitution's, though California courts have interpreted the text in a more demanding way.) Still, the ERA would have strengthened the "no sex classifications" rule, and would thus have made it more likely that courts would adopt broad "the government must be sex-blind" positions.

Now I think it would have been good had the ERA been adopted, though perhaps with a few modifications. (For instance, I don't think the coalition that supported the ERA knew that it would be helping resolve the same-sex marriage question; had they known this, they should presumably have carved out an exception for this. It may also have been worthwhile to carve out exemptions, perhaps to specifically protect certain privacy rights, protect girls-only sports teams, and probably allow the exclusion of women from combat, though that's a tough question.) I also think it's good for same-sex marriages to be allowed, though I don't think this should be enacted by courts.

But the California decision -- and the Massachusetts decision, and a similar Hawaii decision that has since been reversed by the Hawaii voters -- shows us that we shouldn't lightly dismiss plausible, facially valid textual arguments (the text bars discrimination based on sex, and the marriage laws do treat people differently based on their sex) as "canards," "scare tactics," or "hysteric[s]." The anti-ERA forces, much as I probably disagree with most of them on many things, have proved prescient.

Occasionally, I get e-mail from new readers who haven't noticed that there are multiple bloggers here. Sometimes, it's of the "How can you say X when yesterday you say Y?" variety, to which my response is "careful with that 'you.'"

More broadly, let this be a reminder to new readers:

It's not just Volokh -- it's a Conspiracy.

Here's today's California trial court decision holding that the opposite-sex-only requirement for marriages is unconstitutional. I expect there'll be an appeal to the California Court of Appeal, and the issue will eventually be decided by the California Supreme Court. Given my sense of the California Supreme Court's moderately conservative (generally speaking) jurisprudential philosophy, I think the court is likely to hold that the opposite-sex-only requirement is indeed constitutional.

Presumably the lower court decision's will be suspended (stayed, in legal parlance) until the appeals have run their course, but I'm not positive.

Consider this account in the Times of London:

Supermodels have fallen foul of France’s blasphemy laws with an advertising campaign that parodies Leonardo da Vinci’s painting, The Last Supper.

A judge ordered the advertising posters to be removed yesterday from billboards across France within three days or risk a daily fine of €100,000 (£70,000)....

The campaign, which was also banned by magistrates in Milan in February, was described as offensive to Catholics by the presiding judge, Jean-Claude Magendie.

Thierry Massis, the [plaintiff] bishops’ lawyer, said: “When you attack sacred things, you create a moral violence that is dangerous for our children. Tomorrow we’ll have Christ selling socks....

In recent years bishops have taken legal action over a poster for the film Amen, which showed a Christian cross that merged into Nazi swastikas, and over an advertising campaign for Volkswagen, which showed Jesus saying: “Rejoice, for a new Golf is born.” Both cases were settled out of court.

Here's the painting:

Here's what appears to be the offending ad:

If this were the only incident in which European courts suppressed speech that I think should be protected, I wouldn't be that troubled — but it seems to me to be part of a considerably broader pattern in which various ideas and expressions can be and are banned because they're offensive, whether based on race, sexual orientation, and religion.

I'd hate to see this pattern imported into U.S. law. And unfortunately, as some pro-internationalist scholars acknowledge, the more attention U.S. courts to pay to foreign legal norms, the more likely it is that those norms will eventually be used to narrow U.S. constitutional rights as well as to expand them.

Thanks to reader John Griffin for the pointer.