Commenter agog writes, apropos the Tony Twist right of publicity case,

So, if you're an artist here's another reason not to live in Missouri. Terrible decision.

If only the decision were that limited! Unfortunately, it affects writers, filmmakers, and other artists throughout the country (and throughout the world, if their work is distributed in the U.S.).

The dominant U.S. choice-of-law rule is that right of publicity cases are decided using the law of the jurisdiction in which the plaintiff lives (or in which he was living when he died). That means that if John Ashcroft moves back to Missouri, someone writes a novel in which one of the characters is named John Ashcroft, and Ashcroft sues -- even outside Missouri -- most courts will apply Missouri law. Ashcroft might therefore win if the jury decides that the novel/movie/song used his name primarily for "commercial" purposes rather than "expressive" or "artistic" purposes.

Even if this weren't so, and Ashcroft had to sue in Missouri court, he could still probably get jurisdiction over the defendants, even if they had never set foot in Missouri. He could certainly get jurisdiction over the nationwide media organizations that publish and distribute the work. So Missouri law would affect what commercially distributed books, films, or other works anyone, whether in Missouri or not, can create.

The Missouri Court of Appeals has upheld the $15 million damages award against comic book author (Spawn and more) Todd MacFarlane, who named a character after hockey player Tony Twist. The award was based simply on MacFarlane's use of Twist's name in the comic books -- a supposed infringement of the right of publicity -- and not on any alleged defamation.

When the Missouri Supreme Court allowed the case to go forward, I filed an amicus brief on behalf of writers Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and The Authors Guild, Inc. supporting the petition for U.S. Supreme Court review. The Justices declined to hear the case, but I hope it was because there wasn't yet a final decision, since the Missouri Supreme Court had sent the case back down for a new trial. (The lack of a final verdict, especially in a case coming from state courts, is recognized as a very serious, though not insuperable, procedural obstacle to U.S. Supreme Court review.)

If MacFarlane asks the Missouri Supreme Court to review the case, and the Missouri Supreme Court either refuses to review the case or affirms the verdict, then there will be a final judgment, and the case will be procedurally ripe for U.S. Supreme Court review. And I think the U.S. Supreme Court then ought to take it, especially given the inconsistency between this case and a California Supreme Court case also involving the right of publicity, the First Amendment, comic books, and characters named after semi-famous figure (though there two singers rather than a hockey player). Mind you, I don't say "will take it," but "ought to take it."

There's a good deal more to say about the case, and the brief I wrote (with the help of my coblogger and actual Supreme Court Bar member Erik Jaffe) says some of it. But here, I just wanted to repeat one observation from the brief, which I think might be illuminating for some other "It's speech! No, it's commerce!" debates.

The Missouri Supreme Court, which upheld Twist's general legal theory, faced a potential obstacle to its ruling: Fiction writers in fact often name characters after famous people, for a variety of reasons. Sometimes they include those people as characters, as in the movies Forrest Gump and Zelig, or in Steve Martin’s play Picasso at the Lapin Agile (which has as its lead characters Pablo Picasso and Albert Einstein). Sometimes writers just refer to those people in passing, or name characters after them -- consider Yogi Bear; the characters Bernard Marx, Lenina Crowne, and Benito Hoover in Aldous Huxley's Brave New World; characters nicknamed after Ginger Rogers and Fred Astaire, in Federico Fellini's Fred & Ginger; and the reference to Joe DiMaggio in Paul Simon's Mrs. Robinson. The list could go on.

The Missouri Supreme Court tried to deal with by creating a distinction between (a) speech that is said “with the intent to obtain a commercial advantage” -- speech that is “predominantly a ploy to sell comic books” -- and (b) “artistic or literary expression.” But this distinction just can't work.

Most successful creators intend both to obtain a commercial advantage and to express themselves. By expressing yourself in a way that readers want to read, you make money. By making money, you get the free time needed to express yourself. The prospect of making more money gives you an incentive to produce more works, and to make your works better.

That is a basic aspect of the free market (see Adam Smith). And it's also the view embodied in the Constitution’s Copyright and Patent Clause. As the U.S. Supreme Court has said, "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas."

And of course from the reader's and the public's perspective, creative works add to public debate, to the "marketplace of ideas," or just to the stock of entertainment regardless of the speaker's motive. A biography is valuable whether the biographer is motivated predominantly by “commercial advantage,” by a desire for “literary expression,” or by both. Likewise for a comedy routine that mentions a famous person, or a story or novel (whether purely textual or graphic) that does the same.

Trying to distinguish "artistic" or "literary" expression sold for money from "commercial" expression that consists of art and literature thus makes no sense. (I set aside here commercial advertising, which is a separate First Amendment category; MacFarlane's comic books don't fit within that category.) People are often tempted by this distinction, because of many people's sense that commerce is "low" and art is "high." That is a temptation that must be resisted.

OK, then, head over heels. Discuss.

Here's one Sasha came up with -- what do these have in common, and can you name more?

• Die.

• Medium.

• Person.

• Penny.

Commenter Luke faults the Webster's Dictionary of English Usage argument about times less and times more with this:

"Everyone" understands what I mean when I say "axe you a question," so presumably we can all start saying that in the courtroom and in business meetings, etc. with no problems, right? It's no different than this case. It would take "a good deal of effort" to not understand what I meant, after all.

The trouble with "axe" for "ask" isn't that the spelling is somehow "illogical." After all, everyone understands that the pronunciation "iern" means "iron"; that's perfectly proper. The pronunciation "kernel," in context, means "colonel"; that's proper, and we wouldn't phonetically say "colonel" instead.

The difference between "iern"/"kernel" and "axe" is that "axe"-for-"ask" has not established itself well enough in educated speech. Using it therefore makes people think of you as lower-class; that may not be fair, but there it is. To the extent that one can call certain usages "wrong," this one is "wrong," because it departs from standard usage among educated people -- not because it's somehow illogical.

"Times more" and "times less" is standard usage, from Gladstone on down, and has long been standard usage. Most educated English speakers, I suspect, aren't even aware of the controversy over it (unlike with "axe"). So I see no justification for describing it as "wrong" (as opposed to "inelegant" or "likely to cause annoyance among some listeners").

And, yes, if "axe" ever becomes common enough in educated speech, it will become right, just as "ice cream" and "iern" are now right.

Say that someone describes some amount as "100 plus or minus 5." Would you literally interpret this as "100 plus 5 or 100 minus 5," which is to say "105 or 95"? Or would you recognize that it's an idiom -- referring to the mathematical ± symbol, which is itself literally not the same as its components (plus and minus) -- which clearly means "95 to 105"?

If someone says "this estimate is off by a factor of 12," would you insist that it's ambiguous, because it could mean either "the estimate is 12 times [or 1/12th of] the right result," or "this estimate is off by 1, 2, 3, 4, 6, or 12"? Or would you recognize that, in actual English usage, there's no ambiguity at all (except perhaps in extremely unusual circumstances created by unusual contexts)?

I've found my invaluable Webster's Dictionary of English Usage (1989) — if you love discussing English usage questions, you must get this — and found this lovely excerpt:

As for ice-cream, there is no such thing, as ice-cream would be the product of frozen cream, i.e., cream made from ice by melting. What is called ice-cream is cream iced; hence, properly, iced cream and not ice-cream.

It's a quote from an 1881 book by Alfred Ayres, and it's quite serious. Are you moved by it? Are you ready to condemn "ice cream" as wrong, wrong, wrong, because it's illogical and English usage that's illogical is therefore an error?

I doubt it, even if you're a sworn foe of "ten times lower." Yet if you're reconciled to "ice cream," and would today find the more logical "iced cream" to be too affected and puzzling to use, consider the point Webster's uses the Ayres quote to make: "It is sometimes instructive to take a look at the usage issues of the past, so that we may be chastened and not so easily carried away by those of the present."

Webster's, unlike the other usage books I have on my shelf, also speaks to "times less." It points to several commentators who have criticized "times more" and "times less" (which answers my question about whether there were such commentators — there are), but I think responds to them quite soundly. Here are some excerpts (paragraph break added):

The essence of [the critics'] argument is that since times has to do with multiplication it should only be used in comparing the greater to the smaller (as in "ten times as many" ...).... So goes the argument. It has, undoubtedly, a certain mathematical logic to it ....

[But] mathematics and language are two different things .... The question to be asked concerning such a construction as ten times less is not whether it makes sense mathematically, but whether it makes sense linguistically — that is, whether people understand what it means. The answer to that question is obviously yes. Times has now been used in such constructions for about 300 years [citing, among other sources, Gladstone], and there is no evidence to suggest that it has ever been misunderstood.

Webster's also defends "times more" (paragraph break added):

The [entirely different] argument [as to times more] is that times more ... is ambiguous, so that "He has five times more money than you" can be misunderstood as meaning "He has six times as much money as you."

It is, in fact, possible to misunderstand times more in this way, but it takes a good deal of effort.... The commentators regard this as a serious ambiguity, [but h]ere again, it seems that they are paying homage to mathematics at the expense of language. The fact is that "five times more" and "five times as much" are idiomatic phrases which have — and are understood to have — exactly the same meaning. The "ambiguity" of times more is imaginary: in the world of actual speech and writing, the meaning of times more is clear and unequivocal. It is an idom that has existed in our language for more than four centuries [citing examples] ....

Indeed.

A reader writes, apropos my Slate piece,

Canada cannot have crime rate ten times lower than the crime rate in the U.S. It can have crime rate of one tenth the crime rate of the U.S.

I've heard this objection before, but I'm just not sure I understand its foundation. Indeed, if "X times lower" meant "lower by X times the original amount," "ten times lower" would make little sense (except if for some reason you said that -9 was ten times lower than 1). Or if you somehow just defined "times lower" as an error, it would be, by definition, an error.

What I don't grasp is what justification, besides the objector's own view of what the language should be, there is for this. This is, to my knowledge, a common part of normal English usage. It's not confusing. It's not illogical unless one defines "lower" in a pretty strange way.

Even if one is a prescriptivist, who argues that a statement is bad English if it doesn't conform with The Authorities, what Authorities actually condemn this? There might be some, and please let me know if there are, but I just don't know of any, and my quick and dirty search didn't come up with any.

Naturally, if you think that this usage is ugly or annoying, I can't really argue with that. And if enough people think that, one might want to avoid the usage simply to avoid annoying one's readers. But I took the "cannot" to mean "cannot, without violating the rules" rather than "cannot, without annoying me." Where are those rules set down?

Here's today's Bushism of the Day, "the president's accidental wit and wisdom," from Slate:

"So we'll bring our ideas, they'll bring theirs, let's clarify the differences, let's don't say bad things about our opponents."

Whoops, sorry, wrong President -- that's actually from President Clinton. The Bushism of the Day today is really this:

"Let's don't just talk about it. Let's actually do it, by passing the legislation."

Rats! Screwed up again -- that's actually from Vice President Gore. Here, and this time I'm serious, is today's actual Bushism of the Day:

"I tell people, let's don't fear the future, let's shape it." -- Omaha, Neb., June 7, 2006

As best I can tell, the only supposed flub -- the only supposed humor -- here is "let's don't." (Without that, the phrase isn't terribly rich in content, but neither are "the only thing we have to fear is fear itself," or a wide range of other perfectly normal exhortations from political leaders.)

Yet it's a flub only in the sense that departure from the standard Northeastern/West Coast elite spoken English is a flub. If you search for "let's don't," you'll find it used routinely in spoken English, chiefly (as best I can tell from my searches) by people from flyover country.

The only usage guide I could find that discusses "let's don't" is "The Columbia Guide to Standard American English", which reports, "There are three negative idioms: Let’s not stay, Don’t let’s stay, and Let’s don’t stay. [I infer that 'stay' is just an example here, and the idiom equally works with other verbs.] All are Standard, although Let’s don’t is more typically American than Don’t let’s, which is more typically British." Sounds right to me.

On occasion of Slate's 10th anniversary celebrations, its editors very graciously invited several of the magazine's "most persistent critics" to offer their criticisms in Slate's pages. Here are my criticisms, which I hope are constructive.

How Appealing reports:

The U.S. Senate has confirmed Sandra Segal Ikuta to serve on the U.S. Court of Appeals for the Ninth Circuit by a vote of 81-0: I will link to the official roll call tally once it becomes available.

Many congratulations to Judge Ikuta, a UCLA Law School alumna and a former clerk for Judge Kozinski and Justice O'Connor!

Didn't know of this Latin abbreviation until I ran across it in Justice Scalia's Youngblood v. West Virginia dissent today. It's apparently short for verbum sapienti, which means "a word to the wise [is enough]." Learn something new every day; I can't say I'm likely to use it in my own prose, but at least now I'll understand it when I see it elsewhere.

The Commission's April 3 "Findings and Recommendations ... Regarding Anti-Semitism" state:

The United States Commission on Civil Rights issues the following findings and recommendations regarding incidents of anti-Semitic harassment at college campuses throughout the Nation: ...

[Finding] 1. Many college campuses throughout the United States continue to experience incidents of anti-Semitism.... While incidents of threatened bodily injury, physical intimidation or property damage are now rare, they have been alleged on some campuses. On other campuses, students have alleged patterns of threatening or intimidating behavior, derogatory remarks, vandalism, and use of Swastikas and other symbols of hatred or bigotry. When severe, persistent or pervasive, this behavior may constitute a hostile environment for students in violation of Title VI of the Civil Rights Act of 1964.

[Finding] 2. On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.

[Finding] 3. Substantial evidence suggests that many university departments of Middle East studies provide one-sided, highly polemical academic presentations and some may repress legitimate debate concerning Israel. This would include, for example, any program in which a student is told that she may not speak in a discussion of Middle East politics on the ground that she has ethnic Jewish physical characteristics....

[Recommendation] 1. [The U.S. Department of Education Office for Civil Rights] should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI against recipients that deny equal educational opportunities to all students. University leadership should affirm their commitment to equal educational opportunity, including ensuring that students are not subjected to a hostile environment on the basis of race, national origin or religion.

[Recommendation] 2. University leadership should ensure that students are protected from actions that could engender a hostile environment in violation of federal law. In addition, university leadership should set a moral example by denouncing anti-Semitic and other hate speech, while safeguarding all rights protected under the First Amendment and under basic principles of academic freedom.

[Recommendation] 3. University leadership should ensure that all academic departments, including departments of Middle East studies, maintain academic standards, respect intellectual diversity, and ensure that the rights of all students are fully protected. Federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct.

[Recommendation] 4. [The Office for Civil Rights] should conduct a public education campaign to inform college students of the rights and protections afforded to them under federal civil rights laws, including the right of Jewish students to be free from anti-Semitic harassment....

As is common with talk of "harassment," the exact scope of the suggested speech restrictions is left maddeningly vague. Clearly the Commission thinks that universities have a legal duty under Title VI to restrict "severe, persistent or pervasive" "anti-Semiti[c]" speech, including "derogatory remarks ... and use of Swastikas and other symbols of hatred or bigotry" — which is to say to restrict speech that expresses certain viewpoints in a way that creates a supposedly "hostile environment."

Presumably this would also include "anti-Israeli or anti-Zionist propaganda" "that includes traditional anti-Semitic elements," such as "anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial" — at least so long as it's not "legitimate discourse regarding foreign policy." The Commission doesn't expressly say that such speech must be prohibited, as it does in finding 1. But finding 2 is apparently one of the Commission's findings "regarding incidents of anti-Semitic harassment at college campuses throughout the Nation," so the Commission presumably thinks that such "anti-Semitic bigotry" may indeed harassment and thus prohibited by Title VI (assuming that it's "severe, persistent or pervasive," whatever exactly that means).

Now when a university or a professor restricts a student from speaking because "she has ethnic Jewish physical characteristics," that is indeed discriminatory exclusion of a student from an activity, and not just offensive speech on the university's or professor's part. But finding 3, which discusses this, also includes more broadly "one-sided, highly polemical academic presentations," and possibly "repress[ion of] legitimate debate concerning Israel" that operates through protected speech (e.g., ridicule). It sounds like the Commission is willing to call these "anti-Semitic harassment," too, which would presumably require universities to suppress them, again if they're "severe, persistent or pervasive."

(Note that private universities are generally free to suppress one-sided, highly polemical academic presentations, and public university might be as well, if those presentations are in the classroom. But I don't think the federal government is free to require private and state universities to do this, even using conditions attached to broad funding programs, such as Title VI.)

It's true that the proposal mentions, in recommendation 2, that universities should nonetheless "safeguard[] all rights protected under the First Amendment and under basic principles of academic freedom." But this doesn't put me much at ease, given many people's claims that the First Amendment and academic freedom don't protect speech that creates a "hostile environment." Certainly the Commission takes the same view that some speech — not just "threatening or intimidating behavior" but also "derogatory remarks" and "use of Swastikas and other symbols of hatred or bigotry" — is legally actionable and thus presumably constitutionally unprotected.

The Commission believes that students have a legal "right" "to be free from anti-Semitic harassment." It seems willing to suggest that such harassment would include certain "anti-Israeli," "anti-Zionist," and "anti-Semitic" "propaganda," plus perhaps also "one-sided, highly polemical academic presentations" along those lines. It sounds then like the Commission doesn't take a particularly expansive view of the First Amendment in this field.

In any event, this strikes me as quite troubling. Anti-Semitism should definitely be denounced, and anti-Semitic violence and threats should be punished. But universities shouldn't have speech codes — including ones framed in terms of banning speech that is "severe, persistent or pervasive" enough to create a "hostile environment" — to suppress expressions of anti-Semitic ideas, just like they shouldn't have speech codes to supress the expression of anti-American, anti-black, anti-white, anti-women, anti-men, anti-Catholic, anti-atheist, or anti-gay ideas.

(I should note, by the way, that though the report I cite was issued on April 3, it had been covered very little, which is why I originally missed it; I wish I'd covered it when it came out, but it seems worth criticizing even a couple of months after its release.)

A commenter on the attitudes-towards-homosexuality thread writes:

The Pew Research Center did an interesting poll on the subject recently, actually. The number of people who “strongly oppose” gay marriage has sharply declined in the last two years, from 42 percent in February of 2004 to 28 percent in March 2006. The greatest decline is among seniors, Republicans and moderate religious groups. Fully 58 percent of Americans age 65 and older strongly opposed gay marriage in 2004; only 33 percent are strongly opposed now. Seems to support the idea that old dogs can learn new tricks, if people make the case well enough.

Another picks this up:

The Pew study doesn't surprise me. It seems to me that people are more likely to have favorable viewpoints regarding issues associated homosexuality as we as a society talk about it more. Gay marriage or gay parents are no longer little discussed issues shoved in the very far back of the closet. The more those sorts of issues are discussed, the less bizare they sound. It's easy to whip people up into a fervor about something they haven't thought very much about and is never done. It's much harder to freak people out about something when they are informed (regardless of their conclusion) and when they see that other states and countries have done it and the world didn't come screetching to a halt.

To his credit, the first commentator provided a link to the study, and the study paints a rather different picture than the comment suggests. Strong opposition did fall from 42% to 28% between February 2004 and March 2006 -- but only after it had risen from 30% to 42% between July 2003 and February 2004. The change between July 2003 and March 2006 is thus a quite small and statistically insignificant -2%, not -14%. Similar results are present for the subgroups within the sample.

So be careful when reading accounts of surveys. A seemingly striking change may be less "old dogs learn[ing] new tricks" and more the old dogs returning to their old tricks. Perhaps there has been a long-term change in attitudes about same-sex marriage over the years (though then we'd have to ask whether the change stems from individuals' changed views, or people with one set of attitudes dying and being replaced by people with a different set); but the survey that the commenter pointed to didn't really show such a long-term change, and certainly not in the magnitude that the commenter suggested.

The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford v. Washington (2004), the Supreme Court held that this "bars 'admission of testimonial statements of a witness who did not appear at trial'" (with some exceptions): If I see you committing a crime, I'm supposed to testify in person about it, and be subject to cross-examination by you. The police can't just take my statement and then use it against you at trial when I'm not there to be cross-examined.

But what makes a statement "testimonial," and thus presumptively inadmissible, as opposed to "nontestimonial," and thus presumptively admissible? If someone overhears me saying, while you're attacking me, "Stop hitting me!," is that witness barred from reporting my statement at trial (assuming I'm not around to testify)? Crawford suggested that the answer is no, because the statement isn't really "testimonial," unlike (say) a formal statement given during a police interrogation at a courthouse, which is "testimonial." But Crawford didn't say where the line could be drawn.

In today's Davis v. Washington, the Supreme Court set forth this rule (emphasis added):

Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In one of the cases that the Court decided with the Davis opinion, the Court found that a 911 call reporting on an in-progress attack by an ex-(?) boyfriend on an ex-girlfriend was basically nontestimonial. In the other, it found that statements gathered at the scene of a then-very-recent attack by a husband on his wife were testimonial:

There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in [the other case]) “what is happening,” but rather “what happened. ” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime— ....

As I read this, I wondered whether this distinction was quite sound. The trouble in domestic violence cases is that the victims often -- out of fear, misplaced loyalty, concern (whether sound or not) for their and their children's economic well-being, and a variety of other factors -- refuse to talk about the crime, or talk once and then stop talking. That's why the victims are often unavailable at trial; but it also suggests that when "Amy told [the officers] that things were fine, and there was no immediate threat," the officers might have reasonably had some doubts, especially when they saw some evidence of an altercation.

If you were an officer who was trying to figure out whether it was safe to leave a wife (and her daughter) at home with a husband who might have attacked them, would you simply accept the wife's word that all is fine, and that there's no immediate threat? Or, in trying to figure out what to do to immediately protect the possible victims (not just to or even not primarily to investigate the past crime with an eye towards prosecution), would you try to figure out if indeed things were fine and there was no immediate threat? There might be no "emergency" in the sense of an attack actually in progress that moment -- the police were there, after all, and many an attacker lies low when the police are present. But there might be an emergency in the sense of an attack that was merely suspended while the police were present, and that could resume shortly after they left.

In fact, Justice Thomas's partial dissenting opinion made this very point:

The Court draws a line between the two cases based on its explanation that [the husband-wife case] involves "“no emergency in progress,”" but instead, mere questioning as “part of an investigation into possibly criminal past conduct,” and its explanation that [the 911 case] involves questioning for the “primary purpose” of "“enabl[ing] police assistance to meet an ongoing emergency." But the fact that the officer in [the former case] was investigating [the husband's] past conduct does not foreclose the possibility that the primary purpose of his inquiry was to assess whether [the husband] constituted a continuing danger to his wife, requiring further police presence or action. It is hardly remarkable that [the husband] did not act abusively towards his wife in the presence of the officers, and his good judgment to refrain from criminal behavior in the presence of police sheds little, if any, light on whether his violence would have resumed had the police left without further questioning, transforming what the Court dismisses as "“past conduct”" back into an "“ongoing emergency." ...

Now I'm not sure whether the majority's opinion or Justice Thomas's dissenting opinion (which proposes a test that has its own flaws) is right. It may well be that on balance the majority's distinction, however mushy, is the best that can be created here. Still, it struck me that the majority's application of the distinction was less persuasive than the majority seemed to think. SCOTUSblog is posting what should be a very interesting discussion of the case.

A Christian Science Monitor op-ed argues that this is advisable, and constitutional. I don't think so, because the Twenty-Second Amendment's bar on a President serving more than two terms also applies to the Vice-President (for reasons I touch on below). But, as I suggested here and here, the matter is more complex than it first appears.

Here are the relevant constitutional provisions, in relevant part:

• The Twelfth Amendment: "[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."
• The Twenty-Second Amendment: "No person shall be elected to the office of the President more than twice ...."
• Article II, § 1, cl. 4: "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."

The question, then, is this: Does "constitutionally ineligible to the office of President" mean "constitutionally barred from being elected to the office of President," or "constitutionally barred from serving in the office of President"?

If it means the former — if "eligible" is roughly synonymous, for elected offices, with "electable" — then Bill Clinton would be ineligible to the office of President because of the Twenty-Second Amendment, and thus ineligible to the office of Vice-President because of the Twelfth Amendment. On the other hand, if "eligible" means simply "constitutionally barred from serving," then the Twenty-Second Amendment doesn't speak to whether Bill Clinton is eligible for the office of President, since it only says that he may not be elected to that office. And because there's nothing in the constitution that makes Clinton ineligible for the Presidency, the Twelfth Amendment doesn't make him ineligible for the Vice-Presidency.

My tentative answer is that "eligible" roughly means "elected." I realize that this is far from perfect evidence — it's 40 years later than the usage — but the earliest law dictionary the library could find for me, Bouvier's (1843), defines "eligibility" as "capacity to be elected." (I take it that, by extension, for appointed offices it would mean "capacity to be appointed.") If that's how the term was understood in 1804, then Clinton would not be eligible to the office of President, and thus under the 12th Amendment not eligible to the office of Vice-President.

Some mid- to late 1800s cases also define eligible as referring to "capacity of holding, as well as capacity of being elected to an office" (see Carson v. McPhetridge, 15 Ind. 331 (1860)); but that's in the context of saying that someone who isn't eligible to an office isn't capable either of holding the office or being elected to it. I've seen no evidence that, contrary to the Bouvier's definition, a person would have been seen in the early 1800s as being "eligible" to an office when he was legally barred from being elected or appointed to it, and the only question related to whether he could automatically assume it under some succession statute.

On the other hand, Bruce G. Peabody & Scott E. Gant, The Twice and Future President, 83 Minn. L. Rev. 565 (1999), argues the contrary, though I find myself tentatively unpersuaded by the article's position:

First, it is by no means clear that the term "eligibility" as used in the Twelfth Amendment refers to or incorporates a person's reeligibility under the Twenty-Second Amendment. At the time the Twelfth Amendment was written there was, of course, no Twenty-Second Amendment; therefore, the Twelfth Amendment could not have originally meant to preclude someone from being Vice President who had been elected President twice. Rather, the Twelfth Amendment's reference to "eligibility" likely pointed only to the "eligibility" provision of Article II, Section 1, clause 4 ....

Second, even if the Twelfth Amendment's eligibility provision is to be read in light of the proscriptions of the Twenty-Second Amendment, it could be read as affecting only persons who would become President. If this understanding is correct, the Twelfth Amendment's provision that "[n]o person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States" has no effect on individuals who might simply act as President. In other words, a Vice President "constitutionally ineligible to the office of President" might occupy the vice presidency and eventually act as President, while being ineligible to assume that Office by becoming President through succession....

Third, and most importantly, even under the most expansive reading of what constitutional "eligibility" might include[,] ... we do not believe [for reasons elaborated elsewhere in the article -EV] an already twice-elected President is "constitutionally ineligible to the office of President." ... Even if one leaves aside [scenarios involving succession from the Vice Presidency to the President], there are other non-electoral means of reassuming Office available to a twice-elected President [-- a person's acting as President under succession statutes triggered by the unavailability of either the Vice-President or Presesident, or becoming President if chosen by the House of Representatives when no candidate gets a majority of the electoral votes]. Thus, if the meaning of "eligibility" under the Twelfth Amendment was transformed with the adoption of the Twenty-Second Amendment, the Twenty-Second Amendment still does not render twice-elected Presidents "constitutionally ineligible to the office of President," and it therefore cannot be said that the Twelfth Amendment prohibits a twice-elected President from serving as Vice President.

The issue, incidentally, had come up in 1964, when there was talk of a Goldwater-Eisenhower ticket (thanks to reader David Tenner for the pointer).

This issue came up in the comments to Ilya's post below, so I thought I'd point to a post of mine from a year ago on the subject. Short version: National Opinion Research Center surveys have for years gathered information on whether people believe that homosexual sexual relations are "always wrong" (the other possible answers to the question are that such relations are almost always wrong, only sometimes wrong, or not wrong at all). Here is the data from those surveys for 1973 and 2002, as reported by an American Enterprise Institute paper:

This suggests that the group of people who were 18-29 in 1973 remained on average about as accepting of homosexual relations 29 years later, in 2002. The group who were 30 and above became slightly more accepting of homosexual relations, though only by a little. Neither the gay rights movement nor life experience seem to have made much of a difference to those age cohorts' attitudes. (Obviously they may have affected many individual members of each cohort, and could even have pushed tens of millions in one direction so long as they pushed a comparable number in the other; I'm speaking here of aggregate effects.)

Of course, it's possible that the attitudes about specific gay-rights questions (same-sex marriage, antidiscrimination laws, and the like) might be affected by age, even if attitudes about the morality of homosexuality are not. If you have similar age cohort studies that relate to those questions, I'd love to hear about them.

For more pointers, see the earlier post.