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Saturday, December 23, 2006
Why the Libertarian Party is bad for libertarianism:
In this column, Bruce Bartlett explains why the Libertarian Party is bad for the cause of libertarianism. He concludes that the LP "must die for libertarian ideas to succeed." I have held a similar view for years. More precisely, while I think that libertarian ideas can achieve some success even in spite of the LP, they would have more clout without it.
In a "first past the post" electoral system (one where legislative seats go to whichever party has the most votes in a district), third parties cannot achieve any significant success unless their supporters are highly concentrated geographically to a much greater extent than American libertarians are. Although recent studies suggest that 10-15 percent of American voters have significant libertarian leanings, this leverage is not enough to support a viable third party, even if the LP were much better run than it is and actually managed to mobilize a large fraction of these people behind it. This fact dooms LP efforts not only in presidential elections (as Bartlett points out), but also in congressional and most state and local races as well. As Bartlett forcefully argues, the main effect of the LP is diverting the energies of some libertarian activists and donors away from more productive activities.
Some LP defenders argue that even if the Party doesn't have any chance of winning, it can at least help educate the public about libertarian ideas. However, there is little if any evidence that the LP has actually had any success in this task over its 35 year history. Those libertarians who have succeeded in spreading libertarian ideas - people like Milton Friedman, Ayn Rand, and the Cato Institute - have done so without any LP affiliations, and indeed have tried hard to work with the two major parties. Whether fairly or not, the mainstream media and academic world are not going to pay much attention to ideas emanating from a tiny third party that has no chance of winning any elections; therefore, the LP's educative potential is unlikely to be much greater than its electoral potential.
If we had a proportional representation electoral system, like many European countries and Israel, a separate libertarian party would make excellent strategic sense. The party (if better run than the dysfunctional LP) could command 10-15% of the vote, thereby winning roughly that percentage of legislative seats, and would be a potential part of a ruling political coalition. A libertarian party might also make sense if one of the major political parties were on the brink of collapses and the libertarian party stood a chance of taking its place (as the Republican Party displaced the Whig Party in the 1850s). However, in the real world, the US is unlikely to move toward proportional representation and neither major political party is likely to collapse anytime soon.
Therefore, the cause of libertarianism will be better off without a separate Libertarian Party.
UPDATE: Several commenters suggest that the LP's lack of success is due more to the poor quality of its candidates and campaign operatives than to the structure of the political system. I agree that many of the LP's leaders have had mediocre political skills, at best. However, this is itself in large part a consequence of electoral structure. Skilled, ambitious politicians and operatives are unlikely to join a party which has no real chance of winning and therefore cannot provide them the prospect of successful political careers. In countries with PR electoral systems, such as Germany, New Zealand, and Switzerland, parties with libertarian ideologies have had leaders as good or better than those of other parties and have enjoyed a measure of electoral success.
Court Voids EPA NAAQS Rule:
On Friday, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the Environmental Protection Agency’s rules implementing the new 8-hour National Ambient Air Quality Standard (NAAQS) for ozone (aka “smog”). The EPA adopted the 8-hour ozone NAAQS under the Clinton Administration. The controversial standard, upheld by the Supreme Court in Whitman v. American Trucking Associations, tightened the ozone standard from 0.12 parts per million (ppm) to 0.08 ppm, while lengthening the time period over which ozone measurements are averaged from one to eight hours.
In South Coast Air Quality Management District (SCAQMD) v. EPA, various organizations challenged the EPA’s “Phase One” regulations implementing the new NAAQS as being either too lenient or too stringent. In the end, the D.C. circuit agreed with environmentalist organizations that portions of the EPA’s plan were too lenient and constituted impermissible “backsliding” under the CAA. Specifically, the Court found the EPA lacked the discretion to adopt a more permissive timetable for compliance with a revised NAAQs than thatspecifically outlined for the ozone NAAQS in force when the CAA was last amended in 1990 and found that the EPA’s decision to allow states to withdraw provisions of their state air pollution control plans.
The Washington Post covered the decision here.
Friday, December 22, 2006
Was Your Old Team Better?
Some friends and I used to debate which college basketball programs produced the best professional basketball players. The typical argument would center on which school's active almni would produce the best current NBA team. we found this interesting because some caoches and programs have clearly been better, over time, at producing wining college teams than pro-caliber players and vice-versa. Given the difference in the college and pro games, and the number of players at each level, this should be expected.
With the trade of Allen Iverson from the Philadelphia 76ers to the Denver Nuggets, I've been pondering something similar about NBA teams: For which teams is the assembled quality of former, yet still active players better than the current roster? As a Philadelphia fan, this is something of a depressing exercise, as it is relatively easy to assemble a team of former 76ers that would trounce the current team — indeed, this might have been possible even before the Iverson trade. Is this just an artifact of the rate at which players switch teams? Or (as I've contemplated) is the Philly front office just been that bad?
So Long, Southern Appeal:
Stephen "Feddie" Dillard closes up shop at SA.
Taxes in Arlington, VA:
I can't let 2006 end without noting my outrage that my home county of Arlington, Virginia, has seen fit to raise the personal property tax on vehicles from 4.4 to 5% of value. The stated rationale is the need to provide property tax relief. Hello! Property values in Arlington have more than doubled in the past six years, and property taxes have risen along with the increase in values. Arlington has cut the property tax rate a bit, but is still taking in far, far more in property tax revenues than it did just a few years ago. If Arlington couldn't survive on its property tax revenues at the height of the greatest residential real estate boom in area history, I really wonder how the country government going to handle its finances once the decline in residential real estate values starts showing up in property tax assessments.
Did the Public "Accept" Unlimited Federal Commerce Clause Authority?
In a recent post and comments, co-blogger David Bernstein and Judge Michael McConnell debate the question of whether a majority of the public has "accepted" the nearly unlimited federal power to engage in "economic" regulation reflected in cases such as Wickard v. Filburn and, most recently, Gonzales v. Raich, and whether they would have been willing to support a constitutional amendment giving Congress virtually unlimitede regulatory authority. It so happens that I presented some data on this question in a 2003 article in the William & Mary Law Review. The data strongly suggests that, during the New Deal era when the transition to the modern view of the Commerce Clause took place, the majority of the public opposed unlimited congressional power of this type. Here's an excerpt (citations available in the article itself):
In 1936-37, Gallup conducted three surveys asking respondents whether they supported a
constitutional amendment to give Congress expanded power to regulate industry and agriculture,the fundamental question at issue in New Deal constitutional change. In a January 1936 survey, Gallup asked: “Would you favor or oppose an amendment to the Constitution transferring to the Federal Government the power to regulate agriculture and industry?” Forty-three percent of respondents answered “yes,” while a strong majority of 57 percent said “no.” In a similarquestion asked in December 1936, Gallup surveyed respondents as to the issue of : “Would you favor an amendment to the Constitution giving Congress the power to regulate agriculture,commerce, industry, and labor?” Once again, a majority (51%) said “no,” while 42% answered
yes and seven percent expressed no opinion....
In March 1937, Gallup asked if respondents would “favor an amendment to the Constitution giving congress greater power to regulate industry and agriculture.” This question differs from the previous two in that it posits a potentially much more modest increase in federal regulatory power. Instead of asking about giving Congress “the power to regulate” industry and agriculture, which implies complete power over these subjects, it merely suggests granting Congress regulatory power “greater” than that which it currently possesses. Not surprisingly, this more modest grant of power was supported by a much higher percentage of respondents than the broader one. Fifty-eight percent of respondents in the March 1937 survey said that they favored the proposed amendment, while 42 percent said that they were opposed. Nonetheless, as Barry Cushman points out, it is significant that 42 percent may have opposed any broad increase in federal regulatory authority at all. This suggests that much of the opposition to increased federal power expressed in the two 1936 surveys was quite deeply rooted.
(pp. 625-26 of the published version of the article).
I should emphasize that there is no doubt that the majority of the public in the 1930s favored increasing federal regulatory authority beyond pre-New Deal levels. But that, of course, is not the same thing as favoring virtually unlimited federal power over "economic" affairs.
What about public opinion since the 1930s? We cannot know for sure, since to my knowledge there is no recent polling data directly on point. Nonetheless, since at least the 1960s, majorities have consistently said that the federal government has too much power. Most recently, in polls conducted during this fall's elections, 54% said that government is "doing too much" that should be left to individuals and businesses, while only 37% said that government is doing too little. Such views are not logically incompatible with a belief that the Constitution should be interpreted to give Congress virtually unlimited power to regulate "economic" activity. For example, voters might believe that Congress has this power, even though it shouldn't, or might want government to do more in the economic field, but less overall. The second conjecture is partly contradicted by the survey cited above, which found that 51% said that government should do "more" to promote "traditional values," which implies (in conjunction with the overall result that a majority believes that government is doing too much) that the government activism on economic issues is more unpopular than on "social" ones. As for the first, I doubt that most of the general public rigorously distinguishes between constitutional considerations and policy ones. At the very least, however, the survey data seems to cut against Judge McConnell's contention (quoted by David) that the virtually limitless post-New Deal interpretation of congressional Commerce Clause power has been "accepted by the nation."
It goes without saying that decisions like Wickard and Raich might be correct even if the majority of the public does not "accept" them. The apparent absence of public support, only undermines those justifications for the decisions that rely on the idea that unlimited federal regulatory authority is supported by a broad public consensus.
UPDATE: Some commenters ask why it should matter whether a majority of the public supports an unlimited congressional commerce power or not. As I said in the original post, I myself do not believe that the popularity of a particular interpretation of the Constitution has much bearing on its correctness. However, many scholars and jurists disagree. Many (including apparently Judge McConnell) contend that courts should hesitate to reverse even a flawed constitutional decision if that decision has, over time, come to command widespread public support. Other scholars, such as Bruce Ackerman, argue that broad popular support for revision of the Constitution during a "constitutional moment" (which, he believes, the New Deal was), justifies a change in constitutional interpretation even if there has not been a formal constitutional amendment. The lack of strong popular support for decisions such as Wickard and Raich is important from the standpoint of several widely accepted theories
of constitutional interpretation, even though it may not matter much from a pure textualist or originalist point of view. Related Posts (on one page): - Did the Public "Accept" Unlimited Federal Commerce Clause Authority?
- McConnell (and Me) vs. Breyer:
- McConnell vs. Breyer:
McConnell (and Me) vs. Breyer:
Judge Michael McConnell's critical review of Justice Breyer's recent book Active Liberty overlaps in some ways with my own critique of the same book, recently published in the Northwestern Law Review. But, interestingly, the similarities are probably outweighed by the differences. Although I agree with most of Judge McConnell's points, and he might agree with many of mine, our divergent academic interests led us to focus on somewhat different issues in our respective reviews. McConnell's review and mine came out at about the same time and I didn't have the chance to see his piece before submitting my own. Here's an excerpt from the abstract to my review:
Justice Stephen Breyer's new book, Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process . . .
Part II shows that Breyer's claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence. This point is dramatically illustrated by the sometimes superficial treatment of democracy in Justice Breyer's own book, which ignores tensions between different conceptions of democracy and often fails to consider relevant empirical evidence.
I also contend that a sounder judicial approach to democracy would look more favorably upon judicial limits on the power of the federal government in order to foster federalism. Such efforts could, at least at the margin, strengthen the federal government's accountability to voters by limiting the impact of political ignorance. They could also impose accountability on government by strengthening citizens' ability to vote with their feet instead of just at the ballot box.
Part III assesses Breyer's critique of originalism. While the Justice is right to point out some key flaws in originalist jurisprudence, the force of his critique is weakened by his failure to make crucial distinctions. Breyer's analysis conflates textualism and originalism. Yet these two modes of interpretation are distinct and we could coherently embrace one while rejecting the other. Many of Breyer's criticisms of originalism do not necessarily apply to textualism. Breyer focuses primarily on what scholars call original intent originalism, which seeks to divine the specific intentions of the Framers. He largely ignores the more compelling (and today more widely accepted) approach of original meaning originalism, which holds that judicial interpretation should be based on the generally understood public meaning of the Constitution's words at the time of enactment.
Ultimately, Justice Breyer is right to claim that the judiciary may have a valuable role in promoting democracy. But his prescriptions on how it should achieve that goal are far less compelling.
UPDATE: I have added a link to Judge McConnell's review essay.
Allodial:
If you own land in Arkansas, Minnesota, or Wisconsin, rest secure in the knowledge that the land is expressly "declared to be allodial" by the state constitution. Ark. Const. art. 2, § 28; Wisc. Const. art. 1, § 14; Minn. Const. art. 1, § 15 ("are allodial" rather than "are declared to be allodial"). It may be igneous, or sedimentary, or metamorphic. It may be alluvial or illuvial (though likely not effluvial). But in any case, it's allodial.
Louis Farrakhan as "The Charmer":
In the Comments to my earlier post on Harry Belafonte, Glenn W. Bowen mentioned that Louis Farrakhan was also a calypso singer in his youth as "The Charmer."
I was not aware of that fact, but sure enough, you can hear "The Charmer" here.
Blogs:
Are blogs bad? Or are they good? Well, are books bad, or are they good? How about newspapers? Conversations?
Some blogs are good, some are bad. A few provide very good reports of breaking specialty news (e.g., How Appealing). Some provide very good expert commentary on topics that few journalists know much about (e.g., Language Log). Some provide very good commentary by thoughtful people (e.g., Virginia Postrel's Dynamist), even outside relatively technical areas. Some provide high-quality selection services, pointing readers to interested sources they might otherwise have missed (e.g., InstaPundit and GeekPress). The overwhelming majority are of no interest to me or to most people — but that's true of books, too, and you don't see me ranting about how books are all tripe or all boring (even though most of them are).
Now different media do have systemic pluses and minuses; but those pluses and minuses are often overstated, and often too readily but incorrectly aggregated into an asserted net plus or minus. Consider something as simple as accuracy: Yes, newspapers sometimes offer some editorial checking of the author's work; blogs generally don't. But in practice, newspaper articles are almost never systematically fact-checked. (Some magazines fact-check, but to my knowledge nearly no newspapers do.) Occasionally an editor or someone else will catch an author's error, but pretty rarely. And on the other hand, many blogs are written by people who are much more expert in the field than the typical journalist; surely that contributes to accuracy.
Likewise, the typical newspaper article is much more carefully edited by the author himself than is the typical blog post. On the other hand, it's much easier to correct errors in a blog post after the fact, which lets bloggers work in feedback not just from their own editing or their editors' editing, but also from a large group of often highly knowledgeable readers.
So accuracy ends up turning less on the medium, and more on the particular characteristics of the institution and the author: Is the author really knowledgeable on the subject? Is the publisher (whether a blogger or a newspaper/magazine running a site where corrections are possible) willing to promptly put up corrections? Is the author trying hard to be objective?
True, if you asked me whether I'd put more trust in (1) a randomly selected article from a randomly selected newspaper or (2) a randomly selected post on the same topic from a randomly selected blog, I'd probably choose the newspaper. I imagine that the average newspaper writer has somewhat more training in accurate writing, and feels somewhat more pressure to be accurate, than the average blogger.
But I don't read either randomly selected blogs or randomly selected newspapers, and neither does anyone else. And if you ask me whom I'd trust more on coverage of sentencing law and policy, Sentencing Law and Policy or the New York Times, I'd surely choose the blog, since it's written by one of the nation's foremost experts on sentencing law and policy. More broadly, if you ask me whom I'd trust more on news analysis (not so much raw news, but news analysis) related to topics that I'm interested in, I'd probably say bloggers rather than newspapers: On those topics I care about, I'm familiar with who the best bloggers are, and on balance those best bloggers tend to be more expert (and more aware of the danger that if they err, they'll be promptly contradicted) than reporters at even the best newspapers.
And isn't that the way we deal with most media? We love books not because the average book is great, but because we've found the best authors (from our perspective), and their work is great. Likewise, judging blogs by the "average blogger" or even by "most bloggers" makes as much sense as condemning books as boring because 99% of all books will surely bore you.
ACLU Demands That County Put Up Christmas Tree To Match Menorah:
Yup, that's what the Maui News reports. The threat apparently worked.
The county had earlier let a Jewish group put up a menorah. The ACLU argued (likely correctly, given existing Establishment Clause precedent) that a stand-alone menorah would be seen by reasonable observers as a religious symbol, while a menorah coupled with a Christmas tree — which the Court has (in my view, quite correctly) held to be a secular symbol — would be seen as a permissible secular celebration of the holiday season.
One can certainly criticize constitutional doctrine that calls for such decisionmaking (though if you want to criticize it, you might want to read the leading case, Allegheny County v. Greater Pittsburgh ACLU, first). But given this doctrine, the ACLU's position seems quite sound.
The rabbi, to his credit, doesn't object to the county's putting up the tree. "I think it's wonderful," he reportedly said. "It's just in the spirit of holiday festivities, and educating the community about different celebratory events."
Thanks to Allen Asch for the pointer.
Bailey on Rifkin on Cities:
Ronald Bailey was not too impressed with the Rifkin op-ed on urbanization and the environment.
As humanity has urbanized, we have become ever less subject to nature's vagaries. For instance, a globally interconnected world made possible by the transportation networks between cities means that a crop failure in one place can be overcome by food imports from areas with bumper crops. Similarly resources of all types can be shifted quickly to ameliorate human emergencies caused by the random acts of a brutal insensate nature. Autonomy is just another word for freedom.
The further good news is that the movement of humanity's burgeoning population into the thousand of megacities foreseen that Rifkin is part of a process that ultimately will leave more land for nature. Today cities occupy just 2 percent of the earth's surface, but that will likely double to 4 percent over the next half century. In order to avoid this ostensibly terrible fate Rifkin proclaims, "In the next phase of human history, we will need to find a way to reintegrate ourselves into the rest of the living Earth if we are to preserve our own species and conserve the planet for our fellow creatures." Actually, he's got it completely backwards. Humanity must not reintegrate into nature-that way lays disaster for humanity and nature. Instead we must make ourselves even more autonomous than we already are from her.
Since nothing is more destructive of nature than poverty stricken subsistence farmers, boosting agricultural productivity is the key to the human retreat from wild nature.
Off to the "Third World":
We're off to Miami to visit family. We should need passports for the trip, according to nativist congressman Tom Tancredo, as he believes Miami is a "Third World country." (I suppose he's writing off the southern Florida vote for his presidential run.)
Contra Tancredo, I find Miami to be wonderfully diverse and cosmopolitan. It's an asset to our nation, although I could do without the hurricanes and sauna-like summers.
Sandy Burglar OIG Report:
The Inspector's General report on Sandy Berger's theft of classified documents is available on-line here. One does not need to believe that Berger was part of some sort of conspiracy to believe his actions, as described therein, were serious breaches of the public trust.
Duke Lacrosse Rape Cases Dismissed:
It is being reported that the rape charges in the Duke lacrosse case have been dismissed.
Charges of kidnapping and sexual offense remain.
Harry Belafonte To Keynote MLK Celebration at Dartmouth:
I just learned that Dartmouth has invited Harry Belafonte to be the Keynote speaker for its Martin Luther King, Jr., celebration next month. Belafonte is the legendary performer cum radical speaker of such classic performances as "Banana Boat Song (Day-O)," "Mama Look a Boo-boo," and "Jump in the Line."
Belafonte's more recent ditties have been in a different style, however: "There are those slaves who lived on the plantation, and there were those slaves who lived in the house. You got the privilege of living in the house if you served the master. Colin Powell was permitted to come into the house of the master..." (memorably performed on Larry King Live) and "Hitler had a lot of Jews high up in the hierarchy of the Third Reich. Color does not necessarily denote quality, content or value...." In his Martin Luther King address last year at Duke he compared President Bush to al Quaeda and has called President Bush the world's worst terrorist.
The indispensable Joe Malchow describes the whole sorry affair, including his eloquent take on the matter. He also has video of one of Belafonte's recent live speaking performances and other of Belafonte's comments.
Encomiums and praise for Belafonte are sure to precede his visit to campus. As one who is now associated in a formal way with Dartmouth as a Trustee of the College, I want to speak as an individual to express my dissent from that praise. I do not want to be silent and have that silence interpreted as my acquiescence or implicit approval of this invitation to Belafonte. Given Belafonte's repeated utterances, I believe that it is exceedingly inappropriate for Dartmouth to provide him with this honor and speaking platform. I disagree with this invitation and the honor that it implies. I had nothing to do with inviting Belafonte and did not learn about it until after the fact.
Let me be clear--Harry Belafonte has the same right to express his bizarre, ignorant, and hateful opinions as any other showbiz crackpot. And student organizations or political groups should be permitted to invite him to speak on campus if they so desire. But there is a vast gulf between that and providing him with the honor of the Keynote speaker of Dartmouth's MLK celebration and a major platform to spew his opinions. Is he really the best person, and are these the best sentiments, to honor King's memory?
An irony is that this announcement comes just weeks after Dartmouth held a campus-wide rally against hate and for "civil discourse" (indeed, one such sign persists on the web site of The Dartmouth today). Whatever that means, it is hard to see how this is the sort of discourse is consistent with it.
In my opinion Belafonte's comments have placed him beyond the pale of thoughtful intellectual society. He demonstrated at Duke last year that he has no appreciation of the solemnity and propriety of what words are appropriate for particular occasions and particular audiences. As the Director of the David S. Wyman Institute for Holocaust Studies has commented, "Hitler and his regime murdered six million Jews and launched a world war that caused more than forty million deaths. How can that be compared to current U.S. government policy?"
In fact, it turns out that one of the members of the Wyman Institute's Advisory Committee is Elie Wiesel, who gave a moving and inspirational Commencement address at Dartmouth this past June. From the sublime to the ridiculous.
Belafonte has kind-of sort-of apologized for saying that there were Jews "high up" in the Third Reich hierarchy, when he really meant to just say that they "ha[d] a role ... in the the demise and brutal treatment of the Jewish people." His claim seems to be based on a misreading of one particular book, Hitler's Jewish Soldiers by Bryan Mark Rigg. Rigg commented on Belafonte's "clarification":
But the book's author, Bryan Mark Rigg, repudiated Belafonte's attempt to use his book as the basis for his controversial statements.
"Belafonte continues to distort history. My book shows that a number of people of partial Jewish ancestry served in the German military, but they did not even consider themselves Jews," Rigg said in a statement released through the David S. Wyman Institute for Holocaust Studies.
"Moreover, the vast majority of them were drafted - they were forced to serve Hitler just as other Jews were forced to become slave laborers in Auschwitz and elsewhere," Rigg said.
"In fact, many of them were later dismissed from the German military and sent to forced labor camps, where they themselves were persecuted, and some were murdered. Belafonte should take the trouble to read the books he cites before claiming they support him. My book doesn't support him," Rigg added.
As far as I can tell, Belafonte has never apologized for comparing Rice and Powell to "house slaves," his comparisons between President Bush and Hitler's Third Reich, or for suggesting that President Bush is a terrorist and comparing him to al Quaeda. When given the opportunity he has instead reiterated them.
In my opinion, Belafonte has proven himself an intolerant fool better suited to speak on a street corner soapbox than the largest auditorium at an institution of higher learning. I can see no reason why he deserves to be honored at an institution dedicated to the life of the mind. I wanted to make clear for the record that I had nothing to do with it, had no knowledge of it, and do not endorse it.
The views expressed here are my personal opinion and do not necessarily represent the views of the Dartmouth Board of Trustees.
Enforcing Immigration Laws = Nazi Crackdowns on Jews:
Reuters reports:
U.S. Hispanic groups and activists on Thursday called for a moratorium on workplace raids to round up illegal immigrants, saying they were reminiscent of Nazi crackdowns on Jews in the 1930s.
They accused the Department of Immigration and Customs Enforcement of "racial profiling," or selective enforcement against Hispanics, for arresting 1,300 workers on immigration violations in December 12 raids at meatpacking plants in six states.
"We are demanding an end to these immigration raids, where they are targeting brown faces. That is major, major racial profiling, and that cannot be tolerated," said Rosa Rosales, president of the League of United Latin American Citizens, at a news conference.
"This unfortunately reminds me of when Hitler began rounding up the Jews for no reason and locking them up," Democratic Party activist Carla Vela said. "Now they're coming for the Latinos, who will they come for next?" ...
If Ms. Rosales can point to non-Hispanic illegal immigrants who work in large numbers at large employers, but who aren't drawing the attention of immigration authorities, she might have some case of discrimination -- though it would still be mighty far from Nazi crackdowns on law-abiding Jewish citizens. But I doubt she can point even to that.
Thanks to Jason Smith for the pointer.
Some People Overuse the Term Theocracy, But This Would Be Real Theocracy
(on at least a literal translation of the term): Forty-six Polish Members of Parliament proposed a resolution "stating that Jesus Christ is the King of Poland" (Poland Business Newswire, Dec. 21). The Catholic Church and the majority of Poles (51%-33%, see PAP News Wire, Dec. 21) opposed the move; the speaker of the Parliament took the view that the Parliament "needs the opinion of the Episcopate before [the declaration] could be voted on," so I take it that the move is dead.
Tammy Bruce is puzzled by the Catholic Church's opposition, but it makes perfect sense to me — such a declaration would likely do more to undermine Christianity in Poland than to advance it. These days, kings have responsibilities as well as glory; kings can be called to account for their failure to adequately serve the nation; kings can be deposed and even executed; my sense is that in democratic nations (even ones officially framed as monarchies), kings are seen as servants of the people more than as sovereigns.
Once upon a time, the understanding of kingship was quite different, and Jesus's and the Virgin Mary's historical royal titles (such as Mary's being called the Queen of Pland). But today, officially naming Jesus King would considerably downgrade him.
Thanks to Jules Crittenden for the pointer.
McConnell vs. Breyer:
Via Ted Frank over at Pointoflaw.com, Judge Michael McConnell has a rather devastating (though unfailingly polite) review of Justice Stephen Breyer's Active Liberty in the Harvard Law Review.
As an aside, I'm a bit skeptical of McConnell's conclusion that Supreme Court decisions regarding federal regulation of "intrastate commerce" have been accepted by the nation. Putting aside the issue of whether "the nation" is even aware of the issue, I'm not at all confident that a constitutional amendment mimicking the holding of Wickard v. Filburn, much less Gonzales v. Raich, would pass even today.
UDPATE: Judge McConnell responds in the comments below: "The reason Raich and Wickard are controversial is that they arguably do not involve 'commerce' — not that Congress lacks the power to regulate what is genuinely commerce (albeit intrastate). Just because a particular interpretation is very widely accepted does not mean that every marginal extension of that interpretation is widely accepted."
Yes, that's right, though of course the "public" doesn't understand these fine legal distinctions. The point, I think, is that while public opinion has likely made its peace with a substantial expansion of federal regulatory power relative to the pre-New Deal baseline, I think there is still substantial (even if perhaps not majority) opposition to granting the federal government what in legal terms would be called a general "police power"--the power to regulate everything and anything, subject only to the restraints of the Bill of Rights, which is a reasonable description of the current state of the law.
Meanwhile, Sasha writes: "'Accepted by the nation,' as we know from public choice, isn't the same as 'able to pass if proposed in a constitutional amendment.' Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?" Good point, so let me elaborate: my normative baseline is that if "overwhelming public acceptance" (McConnell's words) over time is to give dubious Supreme Court opinions "legitimacy and authority," it should be because these opinions could, if necessary, ultimately be ratitified via the normal Article V process; at least, one should be able to expect a reasonable chance that such ratification would occur. That's likely true of McConnell's other examples: extension of equal protection principles to the federal government, prohibition of sex discrimination by states (despite the failure of the ERA, I think you could likely get the current state of the law ratified), and prohibition of gross malapportionment of Congressional districts in the states.
Thursday, December 21, 2006
Don't hate me because I'm beautiful:
Now that you've read all about "sele and meal" from my previous post, here's some useful advice for the beautiful.
(The following is from the same Heaney translation of Beowulf that I quoted in my previous post; this can be found at lines 1931-41. I won't reproduce the Old English this time, but you can find a text here and here, among other places. I've noticed that not everyone agrees that the name of the queen is Modthryth; a few versions have "mod" as a separate word and "Thryth" as the name of the queen. Anyway, that's not important here.)
... Great Queen Modthryth
perpetrated terrible wrongs.
If any retainer ever made bold
to look her in the face, if an eye not her lord's
stared at her directly during daylight,
the outcome was sealed: he was kept bound
in hand-tightened shackles, racked, tortured
until doom was pronounced — death by the sword,
slash of blade, blood-gush and death qualms
in an evil display. Even a queen
outstanding in beauty must not overstep like that.
Good advice, even today.
Related Posts (on one page): - Don't hate me because I'm beautiful:
- Beowulf and modern appliances:
"Police Want Bullet in Teen's Forehead":
A bunch of readers have contacted me pointing out this interesting story: In the middle of Joshua Bush's forehead, two inches above his eyes, lies the evidence that prosecutors say could send the teenager to prison for attempted murder: a 9 mm bullet, lodged just under the skin.
Prosecutors say it will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.
But Bush and his lawyer are fighting the removal, in a legal and medical oddity that raises questions about patient privacy and how far the government can go to solve crimes without running afoul of the constitutional protection against unreasonable searches and seizures. There is a Supreme Court decision that covers this kind of case: in Winston v. Lee, the Court held that "the reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure." This means that the legality of the warrant depends on a pretty context-sensitive balance: on one hand, how much is retrieving the bullet likely to help the government's case, and on the other hand, how much harm is it likely to cause to the young man who will have the bullet extracted? For more on this, check out FourthAmendment.com.
Beowulf and modern appliances:
I've just been reading Beowulf in the recent verse translation by Seamus Heaney. It's a bilingual edition, with the Old English on the left and Heaney's version on the right. On two separate occasions, I've noticed a particular expression, "sæl ond mæl."
For instance, in lines 1008-09, we have:
... | þa wæs sæl ond mæl
þæt to healle gang | Healfdenes sunu;
which Heaney translates: "Then the due time arrived for Halfdane's son to proceed to the hall." Similarly, in lines 1607-11, we have a wonderful image describing how the sword that Beowulf used to kill Grendel's mom melts from her scalding blood:
... | þæt wæs wundra sum,
þæt hit eal gemealt | ise gelicost,
ðonne forstes bend | fæder onlæteð,
onwindeð wælrapas, | se geweald hafað
sæla ond mæla; | þæt is soð metod.
which Heaney translates: "It was a wonderful thing, the way it all melted as ice melts when the Father eases the fetters off the frost and unravels the water-ropes. He who wields power over time and tide: He is the true Lord." Unraveling the water-ropes! How can one not love the Anglo-Saxons?
(Digression: Someone should film Beowulf, not like in the atrocious 1999 version with Christopher Lambert, but rather with Klingons. "It is always better to avenge dear ones than to indulge in mourning." Perhaps the upcoming Robert Zemeckis version will have a Klingon in it? Or, for a more complex vision, perhaps David Boreanaz as Beowulf?)
The word "sæl," also spelled "sele," is listed as "obsolete, except in dialect" in the OED, which hasn't seen the word since 1875. The word apparently has no modern equivalents or similar words, and I'm unaware of common related words in other languages. Anyway, this word means "happiness, prosperity, good fortune," and in addition means "favourable or proper time, opportune moment; occasion, opportunity; season, time of day."
The word "mæl" is the same as the modern English word "meal." No, I'm not talking about the sense of "something ground," as in "cornmeal" (similar to the word "mill" and even related to the Russian word "blin"). Rather, I'm talking about the sense of "a time or occasion; a particular time, a suitable time; a period of time," which is also used in a more specific sense of "a customary or social occasion of taking food, esp. at a more or less fixed time of day, as breakfast, dinner, etc.," and in its metonymic sense of "the food and drink consumed at or provided for such an occasion." (Compare with the German words "Mal," as in "einmal," and "Mahl," as in "Abendmahl.")
So "sele and meal," meaning "the due time," or, if you will, "time and tide."
Why do I bring this up? Only to alert you that, when you come across this expression, you should not confuse it with the kitchen appliance Seal-a-Meal.
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An Important test for Moneyball Hiring Methods in Academia:
The Brandeis School of Law at the University of Louisville has recently hired University of Minnesota law professor Jim Chen as its next dean. Chen is a prominent legal scholar in several fields, and also a major advocate of Moneyball hiring strategies in legal academia, which he writes about on his highly recommended Money Law blog. I myself have defended Moneyball hiring strategies here and here. Just as Oakland A's General Manager Billy Beane has used Moneyball strategies to build a superior baseball team with less money than his competitors, Moneyball advocates in academia have argued that schools can use such methods to build a better faculty and move up in the rankings, even relative to better-financed peer schools. In both baseball and academia, the Moneyball emphasis on statistical analysis can help identify promising "players" whose contributions are undervalued by more conventional metrics. Certainly, this approach was one of the keys to George Mason's rapid rise over the last few years.
To my knowledge, Louisville will be the second law school (after GMU) to place Moneyball advocates at the helm. Assuming that they give Chen enough autonomy to implement his ideas, this will be an interesting test for Moneyball methodology. If Louisville improves it faculty and rises in the rankings significantly over the next few years, it will be further evidence of Moneyball's effectiveness. The flawed, but widely used US News Law School ranking system currently has Louisville as a "Tier 3" school, which means that they consider it to be somewhere between no. 100 and no. 150 out of the roughly 190 AALS-accredited schools. I suspect they might be moving up soon.
Congratulations to Jim, and good luck!
Melo Won't Appeal Suspension:
Carmelo Anthony has decided not to appeal his 15 game suspension for his role in the Nuggets-Knicks melee last weekend. According to his attorney, Anthony believes the appeal would be a "distraction." "It's Melo's wish to just keep the focus on basketball," [attorney Bill] Duffy told ESPN.com. "In his words, he's just going to take [the suspension] and keep the focus on keeping himself ready." Under NBA rules, if a player appeals a suspension longer than 12 games, the appeal is heard by an independent arbitrator. Anthony's teammate J.R. Smith is appealing his ten-game suspension, but because it is less than 12 games, NBA commissioner David Stern will hear the appeal.
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Urging a Change in Gun Law -- How Shocking! And She's Not Just a School Board Trustee, But a Woman!
The Globe & Mail (Toronto) reports (some paragraph breaks deleted):
Vancouver school board trustee Sharon Gregson [publicly argues that] Canadians need to broaden their thinking about handgun ownership. "There is a thinking that guns can only be bad and related to crime, and that's not my experience as a legal gun owner, participating in a gun sport," Ms. Gregson said, explaining why she decided to get a handgun permit in Utah....
But some of Ms. Gregson's colleagues have urged the trustee, a married mother of four, to stop shooting her mouth off. Trustee Clarence Hanson said her comments send the wrong message to kids.
"I was quite shocked," Mr. Hanson said after he heard Ms. Gregson on a morning radio program yesterday, in which she argued in favour of easier access for permits to carry a concealed gun, especially for women who feel threatened. "As a school trustee, my concern is basically, we have a number of children ... who sometimes feel harassed and bullied. I don't want them to get the impression that this is the way to protect yourself," Mr. Hanson said. "If they get a feeling that a school trustee who represents them thinks it's okay to protect yourself in this way, ... we're going down a dangerous road, I think." ...
Ms. Gregson said she did not mean to suggest that kids in the school system be urged to carry guns. However, she did suggest that the outcome of the Montreal massacre might have been different if any one of Marc Lepine's 14 female victims had been carrying a weapon.....
Mr. Hanson said he wants to talk to Ms. Gregson about her comments. "I think when we become a school trustee, you've raised the bar a little bit for yourself. So you have to help set an example out there."
The head of the Canada's main gun-control lobby[, Wendy Cukier,] denounced Ms. Gregson's comments as well .... "It's an absurd comment. It's completely contrary to Canadian traditions. It has no basis in fact, and for someone who is associated with schools to be making those comments is particularly alarming, especially a woman." ...
Thanks to lawprof Joe Olson for the pointer.
Yet Another Example of Why We Should Bring Back the Word "Prejudiced":
Shmuel Rosner in Ha'aretz has a lengthy discussion of whether Jimmy Carter is anti-Semitic. I think it's pretty clear he's not, or at least that there's no evidence that he is, if by "anti-Semitic" we mean someone who hates Jews and wishes them harm.
The more interesting question is whether Jimmy Carter is "prejudiced" against Jews. From what I've read (and I don't want to rehash it all here), he's prejudiced against Israel and Israelis, and prejudiced in favor of the Palestinians and their leadership, for reasons that have more to do with his own underlying emotional and religious outlook than with any objective analysis of the situation. But while such prejudices are obviously correlated with prejudices against Jews, one can easily have such prejudices without being prejudiced against Jews. Carter, from what I've seen, believes a lot of very foolish things, especially but not exclusively with regard to foreign policy, and the fact that his views on Israel and Israelis are as foolish as his views on economics and foreign policy more generally is hardly evidence of a particular anti-Jewish prejudice.
Agree or disagree with my analysis, I think it's at least clarifying to separate the debate over whether someone is prejudiced, and in what way, from whether someone is a "racist" or an "anti-Semite." To take another example, the professor whom Eugene wrote about yesterday is very likely prejudiced against whites (regardless of his own background), but it's less likely that he's actually a "racist" in the sense of hating whites, wishing them harm, or thinking them inferior.
UPDATE: Here's a related post of mine from the old Bernsteinblog, in which I point out that Harry Truman and H.L. Mencken can fairly be described as "prejudiced" against Jews, but not as "anti-Semites."
Questions About Immigration:
I've blogged nearly nothing about immigration, because it seems to me that to have an informed opinion on the subject, one needs to do a good deal of research (research that I don't have the time and inclination to do now, though I hope to one day). My moral and free-market instincts are generally in favor of pretty substantial immigration, but there are enough serious contrary arguments that I'd heard that I don't feel at all comfortable trusting my instincts here.
So instead of expressing my views, I thought I'd briefly just ask the following questions, and ask you to answer them only if you meet both of these conditions:
(A) You are political liberals or moderates who support a considerable level of welfare spending (for medical care, general relief, housing subsidies, food stamps, public higher education, and a variety of similar programs) — I don't insist that you support the most aggressive forms and levels of welfare spending, but just that you support a considerable amount of such spending.
(B) You support relatively open immigration.
I should note that these are sincere questions, ones that I thought are hard questions for pro-open-immigration forces, but not ones that I've concluded are unanswerable. Here they are:
(1) If we had relatively open immigration, how many of the world's 6 billion people do you think would want to move here? (As I understand, the current rate with our non-open immigration policy is about one million per year.) Would you let in all of them, or would you cap them at some level, or select them otherwise? If you would cap them, what would you do about the illegal immigrants who'll keep on coming?
(2) Which government benefits do you think ought to be provided to these immigrants? I take it that most of us would say that basic police protection ought to be provided. I assume that public K-12 education would be provided for the immigrants' children, too, yes (even if only because you don't want them to be running around on the street, or forming a permanent uneducated underclass)? What about medical care (both emergency and nonemergency), food stamps, university education, and the like? Would you support limiting such programs only to people who are citizens (or who have lived here, say, 7-10 years)? Or do you think that it would be wrong or counterproductive to leave our legal guests without education, medical care, food aid, and the like?
(3) Would you support putting these immigrants on the standard path to citizenship, which would presumably mean that if they don't misbehave, they'd be able to get citizenship within 7-10 years? I'd expect you would, since it's probably not good to have a large cadre of legal residents who nonetheless aren't eligible to be citizens. But if your guess as to question 1 is that many millions would come each year, are you at all worried that this might upset the current political balance on various policy issues that you favor (perhaps, for instance, socially liberal policy issues, such as gay rights and the like) but that many likely immigrants — from Latin America, China, the Middle East, Africa, and the like — might not favor?
(You can of course argue that we should work hard to assimilate the immigrants and acculturate them to our views; but please explain how you'd deal with the possibility that they not be persuaded by our views, at least in the first generation. You can also argue that we should entrench these policy issues as a matter of constitutional law; but then please explain how you'd keep these constitutional judgments from being upset if the political balance shifts enough, given that a large enough majority can always overcome constitutional judgments in a variety of ways.)
UPDATE: Just to make explicit something that I thought was clearly implicit, but that some of the answers didn't touch on -- if your answer to number 2 is pretty generous, wouldn't that further increase your answer to number 1, and bring in many people who would cost a great deal to take care of? Most immigrants, I'm sure, are quite hard-working, but the more benefits you offer, the more likely you are to get people who come at least partly or even largely for the benefits.
This doesn't make them horrible, just smart: If they have health problems, and several small kids, they might well want to move partly for the health care (if we do provide them free health care) and the education, especially if the government will feed them via food stamps and house them via some sort of housing stipends for the needy. The subsidies may make them dirt poor by our standards, but still much better off than they were in their home country, especially if you include the medical and educational benefits.
Do you think this will be very rare? Pretty common, but fine nonetheless?
A Troubling News Tidbit:
Today's N.Y. Times reports:
The lawyer for James Barbour, a Broadway actor accused of sexually molesting a young woman in 2001, when she was 15 and he 31, was barred yesterday from setting up a hot line asking men to come forward with accounts of being falsely accused of sexual harassment by the accuser in this case, who is now 20. The lawyer, Ronald Fischetti, said in State Supreme Court that the district attorney had set up a hot line soliciting other claims against his client, and that he wanted to turn the tables. But Justice Micki A. Scherer denied his request, and ordered both sides not to discuss the case.
This strikes me as posing both First Amendment and Sixth Amendment problems. I'm not an expert on this corner of First Amendment law — I know judges have often been seen as having substantial power to restrict the speech of ligitants, including criminal defendants, as well as their lawyers. Some restrictions on lawyers have been generally upheld by the Supreme Court in Gentile v. State Bar (1991), following a longstanding tradition of treating lawyer speech about pending cases as especially subject to judicial supervision. But even Gentile doesn't hold lawyer speech to be categorically unprotected, and I'm not sure that this sort of speech would be punishable under Gentile.
Moreover, while some courts have extended the holding to the litigants themselves, including defendants (who, unlike civil plaintiffs or prosecutors, can't be seen as having voluntarily incurred some obligations in exchange for some benefit, such as a government job or access to the court system). It seems to me there's no constitutional justification for any such speech restriction: Even if Barbour's lawyer may be barred from engaging in such a search, Barbour's friends or business associates should be free to do this, and pass the information along to Barbour and his defense team. On the other hand, I should warn readers that I haven't read much of the lower court caselaw on the subject (and there is a good deal of such caselaw), so my opinion here is somewhat tentative.
As to the Sixth Amendment: The defendant seeks information that might prove exculpatory to him. True, seeking this information may well be quite annoying to the complainant (even if the complainant has never falsely accused anyone of sexual harassment before, the public solicitation for such stories may cast her veracity in doubt with some), and may discourage future complainants from coming forth. But I don't see that as an adequate justification for keeping the defense from discovering important exculpatory evidence, whether or not the prosecution has sought comparable evidence on the other side.
But I'd love to hear from readers who know more than I do about this subject — both more about the facts of this incident, and more about this area of the law.
"Why They Deny the Holocaust":
Via Concurring Opinions, a disturbing op-ed explaining why Holocaust denial finds so much of the Islamic world to be fertile ground:
Western leaders today who say they are shocked by Iranian President Mahmoud Ahmadinejad's conference this week denying the Holocaust need to wake up to that reality. For the majority of Muslims in the world, the Holocaust is not a major historical event that they deny. We simply do not know it ever happened because we were never informed of it. . . .
. . . For generations, the leaders of these so-called Muslim countries have been spoon-feeding their populations a constant diet of propaganda similar to the one that generations of Germans (and other Europeans) were fed — that Jews are vermin and should be dealt with as such? In Europe, the logical conclusion was the Holocaust. If Ahmadinejad has his way, he shall not want for compliant Muslims ready to act on his wish.
Europe Moves to Cap Airline Emissions:
The New York Times reports that European officials are moving ahead with plans to impose caps on greenhouse gas emissions from air travel. Airlnes have been exempt from Europe's carbon dioxide cap-and-trade progrma, but that exemption could end in 2011. If this plan goes through, the costs are likely to be reflected in higher airline ticket prices, at least in Europe.
The international air transport group said that Europe’s proposal could still cost airlines globally up to 2.9 billion euros ($3.8 billion) a year to buy allowances starting in 2012, when the rules are expected to cover all flights in and out of the union.
But European officials said that airlines should be able to pass much of the extra costs on to passengers, who would face increases in ticket prices of $2 to $12 for a trip within the European Union over the next decade. Officials said a return flight to New York might cost an additional $10 to more than $50, depending on how much individual airlines would have to pay for extra carbon allowances.
Sandy Burglar:
From today's Washington Post:
On the evening of Oct. 2, 2003, former White House national security adviser Samuel R. "Sandy" Berger stashed highly classified documents he had taken from the National Archives beneath a construction trailer at the corner of Ninth Street and Pennsylvania Avenue NW so he could surreptitiously retrieve them later and take them to his office, according to a newly disclosed government investigation.
The documents he took detailed how the Clinton administration had responded to the threat of terrorist attacks at the end of 1999. Berger removed a total of five copies of the same document without authorization and later used scissors to destroy three before placing them in his office trash, the National Archives inspector general concluded in a Nov. 4, 2005, report.
So, Berger stole and destroyed classified material on multuple occasions — some of which had hand-written notations that are permanently lost — and his only punishment was a fine, some community service, and the temporary loss of his security clearance. At the very least, Berger should never have access to classified documents again.
[Oops! I forgot the link. It's fixed now.]
Lindsey Defends "Liberaltarianism":
Brink Lindsey returns to the pages of The New Republic to defend "liberaltarianism" from Jonathan Chait's critique (available only to TNR subscribers). Lindsey's bottom-line: "Liberals deserve better than to wind up as tax collectors for the gerontocracy. Moving in a libertarian direction offers a way out."
InstaPundit & Mrs. InstaPundit Podcasting "a Martha Stewart Christmas,"
They interview (1) Prof. Joan Heminway, whose book, Martha Stewart's Legal Troubles, comes out next week, and (2) Prof. Ellen Podgor, who has a chapter in the book and who talks about white-collar crime, overcriminalization, and more. Plus some cool Christmas music, which I'd never heard before, from Audra & The Antidote.
News from Europe:
Take a look at the Helsinki Complaints Choir. This is along the same lines as my 2003 dream that I was going to put on a Brown v. Board of Education oratorio. (See also the Civil Rights Cantata, a musical setting of the Universal Declaration of Human Rights, Nuremberg Principles, and excerpts from the U.N. Charter, by James F. Wood. You can buy that here.)
Also, Slate comments on the release on probation of British Holocaust denier David Irving, who had served 13 months of a 3-year sentence in Austria. "Score one for free speech," says Michael Weiss of Slate. (Weiss adds "even if the speaker is thoroughly unsavory," which sadly seems obligatory these days.) Does anyone have any evidence that the probation was based on free-speech concerns? I didn't see any in the news article I read. (I know, perhaps any shortening of a speech-violative sentence is in some sense a victory for free speech. But it's arguably not such a big "ideas" victory if he was released to open up prison space for murderers, because he was judged unlikely to reoffend, because the Austrians thought deportation was a better option for foreign prisoners, etc.)
Wednesday, December 20, 2006
Adolf Hitler on Federalism:
One of the relatively few underanalyzed major topics in the extensive academic literature on federalism is the relationship between federalism and totalitarianism. A potential advantage of decentralized federalism is that it might serve as an obstacle to the establishment of an oppressive totalitarian state. Yet most scholars have largely ignored this possibility. One writer who didn't, however, was Adolf Hitler, who had this to say on the subject in Chapter 10 of Mein Kampf (which is devoted to German federalism):
[A] new and triumphant idea should burst every chain which tends to paralyse its efforts to push forward. National Socialism must claim the right to impose its principles on the whole German nation, without regard to what were hitherto the confines of federal states. And we must educate the German nation in our ideas and principles. As the Churches do not feel themselves bound or limited by political confines, so the National Socialist Idea cannot feel itself limited to the territories of the individual federal states that belong to our Fatherland.
The National Socialist doctrine is not handmaid to the political interests of the single federal states. One day it must become teacher to the whole German nation. It must determine the life of the whole people and shape that life anew. For this reason we must imperatively demand the right to overstep boundaries that have been traced by a political development which we repudiate. (emphasis added)
Hitler and the Nazis rightly saw German federalism as an obstacle to the realization of their aims - which required a highly centralized state. And it is not surprising that they quickly stripped the German states of most of their authority after taking power in 1933. Other things equal, a totalitarian government is more difficult to establish in a federalist state than in a unitary one, because in the former state and/or local governments will retain greater ability to resist a totalitarian movement that comes to power at the center. If the totalitarians are unable to stifle the autonomy of state governments, then their vision cannot be fully implemented, even if they remain in power at the center. In Hitler's words, federalism makes it harder for a totalitarian movement to "impose its principles on the whole . . . nation." Furthermore, relatively autonomous state and local governments might make it more difficult for the totalitarians to seize power at the center in the first place.
The fact that Hitler didn't like federalism is not in itself a reason to support it; such an argument would be an obvious example of Eugene Volokh's "reverse Mussolini fallacy." But the likelihood that federalism may have the benefit of making the establishment of a totalitarian state more difficult is an important advantage of such a system relative to a unitary state.
Even if federalism obviates the danger of a totalitarian takeover only slightly, that might still be an important advantage given the high cost of totalitarianism. For example, let's assume that in Country A, federalism reduces the chances of a totalitarian outcome from 2% to 1%, and let us also assume that A has a population of 20 million people. Given that totalitarian governments typically engage in mass murder that kills 5% or more of the population, reducing the chance of a totalitarian outcome in A from 2% to 1% has an expected value of at least 10,000 lives saved. That estimate conservatively assumes that the totalitarians would kill "only" 5% of A's population if they succeed in taking over. There are numerous totalitarian states where (including the USSR, China, Cambodia, Ethiopia, Yugoslavia, Germany, Vietnam, and others), where totalitarian rulers accounted for a much higher death toll than that. It also ignores all the lesser human rights violations that occur under totalitarian rule such as forced labor, violations of freedom of speech, and so on.
In some well-established democracies, the background probability of a totalitarian takeover may be so low, that the utility of federalism in driving that probability down still further is insignificant. In less-established democracies, such as that which the Nazis faced in the 1920s, the background probability is considerably higher.
Finally, it's worth noting that Germany is the only example of a federalist nation that fell victim to a totalitarian takeover despite its federalism. Except in cases where totalitarianism was imposed by foreign conquerors, every other transition to totalitarianism occurred under unitary governments. Even in the German case, federalism helped prevent earlier efforts at a totalitarian takeover in 1919 (by communists) and 1923 (Hitler's Beer Hall Putsch). Fascist Italy is not a counterexample, because Mussolini's dictatorship, although oppressive, never rose to the level of full totalitarianism and - not coincidentally - did not engage in mass murder and other atrocities on anything like the same scale as the Nazis did (e.g. - Italian Fascist officials actually refused to take part in the Holocaust).
The degree to which federalism impedes totalitarianism remains an open question. But if it does so to even a small extent, that fact alone might justify establishing a federalist system with strict limits on central government power - even if a unitary state would be preferable otherwise. The choice between unitary government and federalism is an important issue in many new democracies, including Iraq. In making their decision, they should take due account of Adolf Hitler's insight.
Liberman Discusses "On All Fours":
Over at Language Log, Mark Liberman weighs in on the "on all fours" question. (I realize that only about 2% of VC readers still care about this, but hey, I happen to be part of that 2%.)
Woman Complains to Officer About Buying Bad Crack, Gets Arrested:
The story is here.
Best Law Blog (2006):
I'm delighted to report that my cobloggers and I have been awarded the Best Law Blog award by the voters for the 2006 Weblog Awards. Unscientific, but, hey, science is vastly overrated.
How Appealing, which I read every day, was #2; but I would say that they are the #1 Law News Source, whether online or not.
UPDATE: My favorite comment, from glangston: "This honor and the fact that you were named Person of the Year by Time Magazine .......!!!!...it's almost too much."
Sex (or SexLaw) Sells -- Surprise!
Our unique visitor count Monday was 35697, and Tuesday was 38423 -- both near our historic highs. (The norm for a typical weekday is in the low 20000s.) My sense is that most of the extra visits were to the initial Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old post.
No, we won't be upping our blogging on SexLaw as a result. (We'd blog about it independently of visitor interest.) But it's interesting, though of course completely unsurprising, that this is indeed what many people want to read.
Washington State University Professor Calls Student "White Shitbag" at Demonstration:
The WSU investigation report is here. The College Republicans organized an anti-illegal-immigration event, featuring a "24-foot, chain-link, cyclone fence, later established as a representation of a 'Wall of Immigration.'" Professor John Streamas showed up, got into an argument with Dan Ryder, a College Republicans member, and in the process called him a "white shitbag."
Ryder eventually filed a complaint alleging that Streamas subjected him to discriminatory harassment and intimidation, in violation of a university policy. The WSU report held that Prof. Streamas's insult didn't violate the policy, but noneteless condemned Prof. Streamas for "immature, intellectual unsophistiated and thoughtless conduct unbecoming any WSU employee and a member of the WSU faculty, in particular." The university will apparently officially reprimand Prof. Streamas.
It seems to me that Prof. Streamas's statement indeed shouldn't be a fireable offense. Despite the First Amendment and academic freedom protections that professors have, I think a university could indeed sanction in various ways one-to-one personal insults said by professors to students, especially when they fall within the constitutional category of "fighting words" (words that are likely to start a fight), which "shitbag" likely does. But to do that, I think the university ought to have a policy that's far clearer than the one at issue here; and there should any event be some accommodation for occasional statements made in anger — especially when the speaker promptly apologizes when called on this, as Streamas did here, when berated by Mr. Ryder for the insult. When people get impassioned, they sometimes say things that they shouldn't say, and while we expect better from professors, making each such statement (even an insulting one) into a firing offense (or, when said by students, into a dismissable offense) would go too far to deter extemporaneous debates in which people realize they may go over the line.
I agree that we also have to be attentive to students' academic freedom, and certain speech by professors — most obviously, threats of academic retaliation — can undermine students' freedom. But here the statement was outside class; Prof. Streamas wasn't one of Ryder's professors; and while Mr. Ryder was rightly offended by the statement, I don't think he could have reasonably interpreted it as a threat of either retaliation or of violence (except insofar as all heated condemnation, including condemnation that's much more substantive than this, may carry some vague and indirect implicit threat of retaliation).
Nonetheless, it is pretty sad that this incident happened, and it says some pretty bad things about Prof. Streamas and others like him. First, the report tells us that Prof. Streamas "insists that he did not utter the phrase as an expression of racism, in part, because he argues that a person of color cannot be racist, by definition, because racism also defines a power differential that is not usually present when a person or color is speaking." Yeah, right. He and others are redefining the term "racism" in a way that's pretty far removed from its normal meaning — which is racial hostility — so as to give themselves a rhetorical break from the rules they're imposing on others. And on top of that, he's applying even his revised definition in a disingenuous way: Whatever may be "usually" so, there surely is a "power differential" between a professor of whatever race and a student of whatever race.
Second, "In reply to a [university Center for Human Rights] request for a meeting, [Prof. Streamas] left an unsolicited voicemail message, which stated, in relevant part,"
The fence was a racist attack upon us. And ... I think that we need to talk about that .... Whatever I said to one person is not equal to whatever that fence did to hundreds of people, attacking us personally and communally.... Many, many people have been hurt. I don't care about the hurt feelings of one white person; I care about the hurt feelings of many, many people of color and immigrants who were offended by that fence....
Well, yes, the two are not equal. The fence and the demonstration related to it is an attempt to participate in a debate about illegal immigration. Some might think that the attempts to stem illegal immigration are inherently racist; others might not; but what's important for a university is that illegal immigration and the responses to it are a substantive issue that requires substantive discussion.
That people are "offended" by the discussion, or by the symbols of the discussion, is no reason not to have the discussion. (I suppose one could argue that the fence is a nonsubstantive symbol that doesn't add much to the discussion, but I take it that any "people of color and immigrants who were offended" would have been equally offended by substantive denunciations of illegal immigration as much as they would be by a fence.) And this is especially so with a university: A university can't function effectively if people are deterred from raising substantive arguments because some people (even "many people of color and immigrants") are offended.
On the other hand, calling a student a "white shitbag" is not an attempt to participate in a debate, or to foster a debate. It's namecalling that's pretty clearly inten |