An e-mail from the University of Houston law school reports:

The University of Houston Law Center will be hosting the Loyola-NO School of Law in exile for the remainder of the Fall semester. They will relocate their faculty and 1L's, as well as some upper division students to our campus, where they will run a parallel law school on Fridays, Saturdays, and Sundays. Information about the arrangements is posted at their emergency web site: http://www.jaceebergeron.com/loyola/. There is also a useful and interactive blog at http://www.isthatlegal.org/loyno. . . . As it turns out, the disaster we encountered at UHLC during Tropical Storm Allison gave us near-unique expertise in this kind of law school recovery . . . .

Cool plan; hope it works out well for everyone. And, of course, many other schools are taking many law students into their own normal programs for the semester.

Though widely acknowledged to be very smart, this Justice aroused deep and often vituperative ideological hostility. He was appointed by a President as part of the President's campaign to move the Court towards more judicial restraint -- and, in keeping with his general tendency of mostly deferring to government action, this Justice was willing to endorse considerable federal government authority under the Commerce Clause, for instance letting the government regulate the growing of things for personal consumption on the theory that such regulation was necessary and proper to the regulation of interstate commerce.

But the Justice also believed that there were important limits on federal authority: "The exercise of the commerce power may . . . destroy state sovereignty." If the power is read too broadly, "the National Government could devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment."

Therefore, the Justice reasoned, Congress's power under the Commerce Clause must have judicially enforceable limits. In other opinions, he took similar views, stressing the Tenth Amendment as a limit on other Congressional powers, and finding in the constitutional structure limits to the federal government's ability to interfere with state government functions. This Justice was . . .

The Fourth Circuit has just held that Jose Padilla -- a U.S. citizen and alleged al Qaeda combatant who was captured in the U.S. -- can indeed be kept in military detention. In Hamdi v. Rumsfeld, the Supreme Court took this view as to Yaser Hamdi, a U.S. citizen and alleged al Qaeda combatant who was captured overseas. The question before the Fourth Circuit was whether the place where Padilla was captured should make a difference, and the Fourth Circuit said no. (The Court in Hamdi concluded that the military had to provide detainees some review procedure to determine whether they are indeed enemy combatants; but Padilla's challenge was apparently to the government's very power to detain him, and not to the process it has used to decide whether he's a combatant, see n.4 of the Fourth Circuit decision.)

So here's an interesting twist: The Hamdi decision rested on the votes of five Justices -- Rehnquist, O'Connor, Kennedy, Thomas, and crossover sensation Breyer; but in Rumsfeld v. Padilla, the dissent of Justices Stevens, Souter, Ginsburg, and Breyer opined that "American citizens arrested in the United States" could not be detained (at least for "protracted" times and "incommunicado"). Thus, it looks like Justice Breyer, the necessary fifth vote in the Hamdi precedent on which the Fourth Circuit relies, saw a distinction between detentions of U.S. citizens arrested in the U.S. and those arrested overseas, the very distinction that the Fourth Circuit quickly (and plausibly, given the reasoning of Hamdi) rejected.

When I wrote about this shortly after the Supreme Court's decisions in Hamdi and Padilla, I said,

I suspect that many lower courts would be reluctant to mix four Justices' views from one case (Hamdi) with one extra Justice's views in another (Padilla), especially when those views came in a footnote to a dissenting opinion written by another Justice (though, to be sure, an opinion that Justice Breyer did join without reservations). So in future cases involving Padilla . . . lower courts would be free to conclude that Padilla loses . . . .

This seems to have happened here: The Fourth Circuit followed the five Justices' view in Hamdi, and ignored Justice Breyer's endorsement of a limiting principle in the Padilla dissent. (Note, incidentally, that if Justice Breyer wanted to, he could have written a concurrence in the judgment in Hamdi that expressed the view that Hamdi was limited to U.S. citizens detained abroad. That would have affected the precedential weight of Hamdi; but his joining the dissent in Padilla didn't have that effect.)

But, as I also wrote, "What the Supreme Court will do with that, when and if Padilla's case comes back to the Justices, is impossible to tell." If the Court grants certiorari here, then Justice Breyer might well join Justices Stevens, Scalia, Souter, and Ginsburg -- the Hamdi dissenters -- in reversing the Fourth Circuit's decision.

My father Vladimir asked me a good question last night. The goddess of Justice is depicted blindfolded and holding a scale. But if she's blindfolded, how does she know which pan of the scale is heavier than the other?

The New York Times reports that

In Missouri, a much wider constellation of Internet sites - with names like parishdonations.com and katrinafamilies.com - displayed pictures of the flood-ravaged South and drove traffic to a single site, InternetDonations.org, a nonprofit entity with apparent links to white separatist groups.

The registrant of those Web sites was sued by the state of Missouri yesterday for violating state fund-raising law and for "omitting the material fact that the ultimate company behind the defendants' Web sites supports white supremacy."

I'm trying to get my hands on the complaint, so I can see exactly what the state's theory is. But a requirement that fundraisers reveal potentially embarrassing information would be an unconstitutional form of speech compulsion, see Riley v. National Federation of the Blind (1989). In Riley, the Court struck down even an ideologically neutral requirement that fundraisers disclose in their pitches what fraction of the donations are used for fundraising expenses; a requirement that fundraisers disclose their reprehensible viewpoints -- not all viewpoints, presumably, but only certain ones that the state thinks are bad enough -- would be even more clearly unconstitutional.

I can understand why donors might feel cheated if they give money to some seemingly benevolent cause, and then learn that the cause's founders support white supremacy, Communism, or whatever else. But given Riley, the government may not mandate the inclusion of disclosures in the fundraiser's pitches, even in order to protect donors.

(Reuters):

A South African inventor [Sonette Ehlers] unveiled a new anti-rape female condom on Wednesday that hooks onto an attacker's penis and aims to cut one of the highest rates of sexual assault in the world. . . .

Sounds like a great plan, always on the assumption that it works. It may indeed, as some critics seem to say, "enrage the attacker further and possibly result in more harm being caused," in the words of "Sam Waterhouse, advocacy coordinator for Rape Crisis." But it may also make him run screaming in pain, focused more on getting the condom off than continuing with the act. This is especially so when the rapist doesn't have a gun or a knife, and in the U.S., at least, nearly 85% of rapes don't involve a weapon (see table 66 here). Naturally, not a panacea, but a nice try. Plus, it's also life imitating Neal Stephenson's Snow Crash.

But, shifting from Snow Crash to Princess Bride, "Other critics say the condom is medieval and barbaric"; I don't know who the critics are, but I did indeed see one criticism following the story, in a Kansas State University newspaper, calling the device "barbaric." I do not think that word means what you think it means. Rape is barbaric. Sticking hooks into an attacker's penis as a means of interrupting a rape is eminently legitimate self-defense, even setting aside the poetic justice. If barbarians' supposed sins consisted of fending off rapists, even in painful ways, "barbaric" would be a high compliment, not a pejorative.

Please don't confuse this, incidentally, with the question of what punishments are appropriate for rapists — a different matter from what devices are appropriate to stop rape. (For instance, U.S. law does not authorize the death penalty for rape, but it certainly allows people who are in danger of being raped, or who are being raped, to kill the attacker in order to prevent or stop the rape.)

The New York Times reports:

Waters were receding across this flood-beaten city today as police officers began confiscating weapons, including legally registered firearms, from civilians in preparation for a mass forced evacuation of the residents still living here.

No civilians in New Orleans will be allowed to carry pistols, shotguns, or other firearms, said P. Edwin Compass, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to the hundreds of security guards whom businesses and some wealthy individuals have hired to protect their property. The guards, who are civilians working for private security firms like Blackwater, are openly carrying M-16's and other assault rifles. Mr. Compass said he was aware of the private guards, but that the police had no plans to make them give up their weapons.

Note, though, that the Louisiana Constitution, art. I, sec. 11 (enacted 1974), provides that

The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Is there some implicit emergency exception to the right to bear arms here? On the other hand, doesn't the emergency make the right especially valuable to the rightsholders? Should it matter that the government seems willing to let "businesses and some wealthy individuals" hire to people use arms "to protect their property," but isn't willing to let less wealthy individuals use themselves and their friends and relatives to protect their property (and their bodies and their lives)?

The California legislature's attempt to reverse a 5-year-old 61%-39% referendum on same-sex marriage reminded me of something that political science professor Bruce Cain pointed out a while back — states have, in a sense, two electorates: The electorate as filtered through legislative election, and the direct electorate; and the two will inherently (in many states) yield different outcomes on many issues.

The most interesting reason Cain pointed to (and I realize there are many others, but I want to focus on this one) is that legislative districts have equal population, but not equal numbers of voters. Some districts consist nearly entirely of citizens, include relatively few children, and have high voting rates among eligible voters. Those districts cast many votes in statewide elections for governor, for U.S. senator, and on ballot measures. Other districts with the same population have many more noncitizens (whether legal immigrants or illegal aliens), many more children (for instance, Mexican Hispanics, Hispanics generally, and blacks have higher birth rates than whites), and lower voting rates among the eligible voters (for instance, nonwhites are more likely not to vote even when they are eligible). Those districts cast fewer votes in statewide elections. But each district elects one state assemblyman, state senator, or U.S. representative.

Consider, for instance, a simple and oversimplified example, with three districts, each with population 100,000, with the legislators faithfully tracking their residents' views, and with the breakdowns of views being the same among voters and nonvoters in the same district:

The legislature votes 2-1 against issue A, and that it is indeed the sentiment among the public as a whole (including nonvoters); but as a ballot measure, issue A wins by 1%. (In other models, the legislative vote is close in one direction, and the popular vote is a landslide in another direction.) So even without gerrymandering, political horse-trading, account being taken of the intensity of preferences (which, many assume, are reflected more in legislative votes than in popular votes), and the like, the different percentages of voters in each district are enough to make the legislative-filtered results be quite different from the direct results.

Now you can decide for yourself whether this is good or bad. Is the drawing of district lines by total population bad, because it gives each of the 20,000 voters in district 3 more influence over the selection of a legislator than each of the 80,000 voters in district 1? Is it good, because it leads each legislator to represent the same number of actual people, even if not the same number of voters? Should this lead us to like initiatives and referenda (or the decisions of statewide elected officials) more than the decisions of the legislature, or vice versa? Should it lead us to like a mixed legislative-popular system, or oppose it? I express no opinion on these subjects.

But I do think that this should remind us not to be surprised when Californians consistently elect Democratic House delegations and legislatures, but often elect Republican governors and U.S. senators, and enact more conservative ballot measures. And we should expect the same in other states that have a lot of immigrants (who are more likely to be noncitizens) and a lot of nonwhites (who are more likely to be underage, and more likely not to vote when eligible).

UPDATE: One of the comments complains that the 80%-20% disparity in the table above is unrealistic (though others point out that very substantial disparities, though not fourfold, do exist). But this is a stylized example, with only 3 districts. If you have 80 districts, you can have the same effects with much less stark differences.

Just to keep the arithmetic simpler, say you have 100 districts of 100,000 voters each. 55 are 55%-45% against proposal A, but they have on average only 45% turnout. 45 are 55%-45% in favor of proposal A, but they have on average 55% turnout. In the legislature, A loses 55-45. In a ballot measure vote, we have an exact draw -- 55 districts with 45% turnout are the same for statewide election purposes as 45 districts with 55% turnout. Adjust the numbers by a hair in A's favor, and A would win statewide, though it would still lose in the legislature.

Clayton Cramer has a (mostly) excellent point:

Governor Schwarzenegger announced that he would veto a same-sex marriage bill passed by the California legislature, and his reason for it was that five years ago, a majority--a rather strong majority at that--of California voters passed an initiative defining marriage as "one man, one woman." So what was the response of advocates for the bill?

"Clearly he's pandering to an extreme right wing, which was not how he got elected," said Geoff Kors, executive director of Equality California, one of the bill's sponsors.

Proposition 22, which defined marriage as "one man, one woman" received a Yes vote from 61.4% of the voters at the March 2000 election. So I guess in gayspeak, 61.4% of the population of California--one of the most liberal states in the nation--are "extreme right wing."

Why he wants to mar this argument with the gratuitous "gayspeak," I don't know: Misleading usage by gay activists is no more properly called "gayspeak" than misleading usage by an NAACP leader is properly called "blackspeak" or misleading usage by NOW leaders is called "womanspeak." But in any event, Cramer's essential point strikes me as correct and important.

Put these in order by moving the fewest names:

Washington, Wilson, Johnson, Johnson, McKinley, Davis, Jackson, Taft, Kennedy

Moving a name to between two other names, before the first name, or after the last name all count as one move. Thus, exchanging #2 and #7 requires two moves (since you'd have to move #2 and then move #7).

Note that "order" need not necessarily mean chronological order.

UPDATE: So far, no right answers ("right" = "the one I think is cool") in the first 11 posts, so I suppose this is a tough one. If you like this, please forward it to puzzle-loving friends (or discussion lists).

FURTHER UPDATE: Ed Johnson, in the comments, got it; Bob W almost got it.

A comment to my "the ACLU, Communists, and private organizations" post asked for evidence supporting my claims about Roger Baldwin, the ACLU's Founding Director (for the details of those claims, see that post). That's a very fair question; part of the answer is to point people to Robert C. Cottrell's Roger Nash Baldwin and the American Civil Liberties Union (Columbia University Press 2000), which I believe is generally seen as a fair-minded and on balance positive biography. But I thought I'd also quote excerpts from a rather striking article published by Mr. Baldwin in Soviet Russia Today in 1934 (I've also put a copy of the entire text here) (emphasis in original):

I believe in non-violent methods of struggle as most effective in the long run for building up successful working class power. Where they cannot be followed or where they are not even permitted by the ruling class, obviously only violent tactics remain. I champion civil liberty as the best of the non-violent means of building the power on which workers rule must be based. If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working class liberties. The class struggle is the central conflict of the world; all others are incidental.

Proletarian Liberty in Practice

When that power of the working class is once achieved, as it has been only in the Soviet Union, I am for maintaining it by any means whatever. Dictatorship is the obvious means in a world of enemies at home and abroad. I dislike it in principle as dangerous to its own objects. But the Soviet Union has already created liberties far greater than exist elsewhere in the world. They are liberties that most closely affect the lives of the people — power in the trade unions, in peasant organizations, in the cultural life of nationalities, freedom of women in public and private life, and a tremendous development of education for adults and children. . . .

I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons — the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition when I stacked it up against what I saw of fresh, vigorous expressions of free living by workers and peasants all over the land. And further, no champion of a socialist society could fail to see that some suppression was necessary to achieve it. It could not all be done by persuasion. . . .

[I]f American champions of civil liberty could all think in terms of economic freedom as the goal of their labors, they too would accept “workers’ democracy” as far superior to what the capitalist world offers to any but a small minority. Yes, and they would accept — regretfully, of course — the necessity of dictatorship while the job of reorganizing society on a socialist basis is being done.

Quite remarkable words, it seems to me, from the head of an American civil liberties organization. To his credit, Baldwin apparently recanted in 1939 (though, as I said, that was mighty late), and turned into a severe critic of the Soviet regime. And of course even in the 1930s, many in the ACLU were anti-Communist, and today's ACLU ought not be judged because of the failings of an ACLU leader in the 1930s. Still, it seems to me that once one reads these words, it becomes hard to call Baldwin an "FDR socialist," unless one has a very dim view of FDR.

I tentatively support legislative enactment of same-sex marriage -- but only when the legislature is constitutionally authorized to do this. And the California bill that would legalize same-sex marriage seems to me to be a pretty clear violation of the California Constitution.

California Family Code sec. 308.5, enacted by the voters as Prop. 22 in 2000, provides that

Only marriage between a man and a woman is valid or recognized in California.This is an initiative statute, not a constitutional amendment; it therefore may be challenged as violating the state constitution (a matter that's now before the state courts), and may be overturned through something less than a constitutional amendment. But that something must be a vote of the people, not just a vote of the legislature; California Constitution article II, section 10(c) says that

The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.

So while the legislature could put a new proposal on the ballot, it can't just overturn the old ballot measure on its own say-so (even if the Governor signs it).

As best I can tell, the legislature's argument is that Prop. 22 only banned California from recognizing out-of-state same-sex marriages; but nothing in the Proposition's text says anything about that -- the law applies to all marriages. Some materials in the ballot pamphlet stressed the risk that California courts would recognize out-of-state same-sex marriages, since that was the most pressing risk (from the perspective of foes of same-sex marriage) visible in 2000. But while ballot pamphlet materials may indeed be relevant when a court is interpreting an unclear statute, nothing in the materials says or in my view even suggests that the initiative is limited to out-of-state marriages.

Moreover, the initiative text is clear, and "ballot materials can help resolve ambiguities in an initiative measure . . ., but they cannot vary its plain import." People v. Wheeler, 4 Cal.4th 284, 294 (1992) (superseded by statute on an unrelated point). The legislature is trying to overturn the people's will without a vote of the people, a step that violates the California Constitution.

this time for supporting the Israeli withdrawal from Gaza, helpfully collected in this WorldNetDaily piece (thanks to reader David Weinstein for the poster). I haven't checked the accuracy of most of WND's quotes, but the material that's linked to checks out. For my views on the subject, see my "Does God Dislike Poor People?" post.

UPDATE: More rabbis take this view.