Saturday, January 19, 2008
The right type of stimulus?
Recession fears have caused both President Bush and Congressional Democrats to call for an enormous stimulus package to give the economy a lift. The basic idea of most of our political leaders is a one-time tax cut that will put a relatively small amount of money in the hands of a lot of consumers (and, to be fair, maybe businesses too, depending on the proposal) to encourage them to go out and buy more DVD players, restaurant meals, movie tickets, and other small luxuries that no one really needs but might keep the economy limping along.
Assuming arguendo that a stimulus package is a good idea, why not use the money to invest in the country's crumbling infrastructure? It's no secret that our roads, bridges, and public transportation systems are falling apart, that we're behind much of the developed world in internet-age infrastructure like broadband and wireless capability. Investing in these types of things would not only provide lots of jobs here in the U.S., it would help promote future economic growth — something that won't happen if we give everyone $800 and tell them to go to the mall. In addition, or alternatively, we could invest some of the stimulus budget in homeland security improvements that have shamefully been ignored, such as protecting ports and chemical plants. This type of investment could help avoid future economic dislocations that would likely result from terrorist attacks by reducing the likelihood of such attacks.
I'm no macroeconomics expert, so I encourage those readers who are to explain if I am missing something important here. Do note, though, that I'm not taking a position on whether taxes are generally too high or too low, just on what is the best way to spend a one-time amount specifically designed to pump cash into the economy to (hopefully) ward off a recession.
Which Legal Blogs are Banned in China?
Yale Law School professor Jack Balkin of the Balkinization blog tests to see which legal blogs can be accessed in China and which are filtered out by the government's censorship technology. He finds little consistency in the pattern:
[A] law student who picked me up at the airport explained to me that he had heard of Balkinization in China but that, at least in Chengdu, the site was blocked. When I got to the hotel I checked and sure enough, he was right...
For amusement, I also tried to see if I could reach a number of other prominent law and law professor blogs. I was able to reach Volokh Conspiracy, SCOTUSBlog, How Appealing, Election Law, Instapundit, Mirror of Justice, Concurring Opinions, Becker-Posner, PrawfsBlawg, Feminist Law Professors, Business Associations Blog, Lessig Blog, and Black Prof. I was not able to reach Balkinization, Althouse, U Chicago, Leiter Law School and The Conglomerate.
There is almost no reason to believe that, from the standpoint of the Chinese government, Balkinization is more subversive than Volokh Conspiracy or Becker Posner, or a number of other blogs on this list. It is likely that, as with most Internet filtering schemes, the results are some combination of overblocking technology, arbitrary decisionmaking, and simple luck of the draw.
I'm glad to see that the VC is available in China. However, that may be because the government's censors haven't gotten around to reading my highly critical post about Chinese land seizures - a pattern of violation of property rights that makes Kelo seem like a walk in the park by comparison.
Bobby Fischer Dies:
Former world chess champion Bobby Fischer died on Thursday. Fischer was the only non-Soviet player to become world champion between 1948 and the fall of communism. Many experts consider him the greatest chessmaster of all time. During his last three years of competitive play (1970-72), Fischer not only defeated his opponents but totally dominated all the other top players in the world to a still-unsurpassed extent. His achievement is all the more remarkable in light of the fact that he mostly worked alone and was up against a massive chess "machine" lavishly subsidized by the Soviet government. Dmitry Plisetsky and Sergei Voronkov's fascinating book, The Russians vs. Fischer (based on internal Soviet documents released after the fall of the USSR), has numerous details about the Soviet effort to prevent Fischer from winning the world championship. It also documents the enormous respect that Fischer won from his Soviet chess rivals.
Unfortunately, as the AP obituary linked above notes, Fischer rapidly descended into delusional paranoia and anti-Semitism after winning the world championship in 1972. He refused to defend his title in 1975 and spent most of the rest of his life in seclusion, becoming increasingly more deluded as time went on. While no opponent could consistently beat him at the chessboard, the demons in his own mind ultimately defeated him far more completely than any rival grandmaster ever could have.
UPDATE: Garry Kasparov comments on Fischer's death here.
Friday, January 18, 2008
Ronald Reagan and "States' Rights":
It has somehow become part of conventional wisdom that Ronald Reagan launched his 1980 presidential campaign with a blatant appeal to southern racism by engaging in a vigorous defense of "states' rights" in Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. I've read it myself so often I was sure that it was true.
Out of curiosity, I looked up contemporary articles on Nexis, because I wondered why I don't remember this being much more controverisal at the time (I was only 13, but I followed the election daily in the NY Times). I discovered that the convential story has a kernel of truth, but is wrong in [many of] its details. I was going to blog about this in detail, but see that James Taranto and David Brooks [and Bruce Bartlett] already beat me to it, pointing out, among other things, that Reagan mentioned "states' rights" only once in the speech, in a reference to federalism in economic policy, not race [the speech is available in MP3 here; interestingly, contrary to what I've always heard was Reagan's typical "welfare queen" speech, when he discusses welfare he suggests that people on welfare don't want to be on it, want to work and join the economic mainstream, but are stifled by the bureaucracy acting in its own interest]; that Reagan almost skipped the speech entirely; and that the speech was given at a county fair near, but not in, Philadelphia; and that he gave a speech the next day to the Urban League, which hardly suggests that this was the day his campaign intended to start a race-related controversy.
A few things Taranto doesn't mention, that Nexis reveals: Reagan gave this speech on August 3, 1980, the week after the Republican convention, but at the time, no one thought of this as the "launch" of Reagan's campaign, because the Democratic convention was yet to come. This was considered the slow season before the campaign really started on Labor Day,
and the speech, according to a Times story in October 1980, received little initial coverage beyond the local newspaper [sorry, misread the Times story, which was actually referring to criticism by Andrew Young. The speech itself was covered in the inside pages of the Times and Washington Post, with the Times noting the reference to "states' rights"]. Reporters at the time reported that the audience didn't perceive that Reagan was referring to race [NY Times in October: "Although Mr. Reagan did not elaborate on that occasion, he later explained that he was referring to his proposal to shift certain taxing powers and social programs such as welfare from the Federal to the state level. Most of those at the rally apparently regarded the statement as having been made in that context"--if you listen to the speech, you can see the reference was indeed in that ocontext] and Reagan expert Lou Cannon reported that Reagan didn't usually talk about "states' rights" in his stump speech, but apparently ad-libbed the phrase that one time.
As far as the media was concerned, Reagan launched his campaign on Labor Day in Detroit, while Carter campaigned in Alabama. This itself became the subject of some controversy, when Reagan accused Carter of starting his campaign in a town that was the birthplace of the Klan. (He was wrong, though the town in question was the headquarters of one Klan branch.) "Outraged" southern Democrats said that Reagan had slurred the South and wouldn't win a single southern state (they were, of course, wrong).
The states' rights speech came up a few times in the campaign, but was hardly a major issue. Carter himself absolved Reagan of any intimations that Reagan was running a racist campaign in a nationally televised news conference [Carter, Sept. 17,1980: Reagan shouldn't have mentioned the Klan or "states' rights," but he is not "a racist in any degree."]
It was, of course, incredibly foolish and insensitive for Reagan to throw out the phrase "states rights" in Mississippi during his campaign. This is consistent with my general impression of Reagan's relationship with African Americans: he wasn't intentionally hostile, but was largely indifferent to their concerns and sensitivities, and their voting patterns gave him little reason to change once he become president.
But the prevalent idea that Reagan's campaign marked a turning point in American history because he overtly appealed to southern racists by launching his campaign with a "states' rights speech" in Philadelphia, Mississppi, just isn't right. Ironically, it was Carter, not Reagan, who launched his 1980 campaign in a town deeply associated with racism (though Carter had no discernable racist intent in doing so).
UPDATE: I did a bit more Nexis digging. Reporters did state at the time that the speech was "in Philadelphia," though it was actually just the closest town to the county fair. Lou Cannon reported that some Reagan advisors wanted Reagan to skip the speech because the proximity to Philadelphia was bad symbolism, especially since Reagan was planning a big push that week and beyond to get some of the black vote. Reagan could have done his historical legacy a big favor by skipping the speech and not mentioning "states' rights." However, the media coverage at the time still indicates that Reagan's campaign strategy at the time was to secure the Northeast and Midwest, and that his campaign hoped to get enough black votes (and allay concerns among moderates and liberals about his views on race) to help him achieve that objective. The campaign was still unsure whether the South was sufficiently promising to spend a lot of resources on (Carter had virtually swept the South in 1976).
So I still hold Reagan responsible for stupid and insensitive rhetoric, and his advisors were right to tell him to skip this event, which was in fact bad symbolism, made worse by the states' rights line. But the image of Reagan deliberately launching his campaign with a vigorous defense of states' rights in a blatant appeal to southern racism at the "launch" of his campaign still isn't right. It's more like, "in the downtime between the Republican and Democratic conventions, Reagan was desperately at this time seeking to attract some black votes in the North, while some of his advisors held out hope of winning some southern states. Some of his campaign advisors were savvy enough to realize that the Mississippi speech would create problems for the first goal. Others of his advisors, and Reagan himself, were not sufficiently attuned to African American sensibilities to recognize that giving a speech to an overwhelmingly white audience in Mississippi, and ad-libbing a reference to states' rights, would seriously undermine the campaign's main objective for the week, which was to build sufficient bridges to African Americans to undermine Carter's chances in the Northeast and Midwest." "Dog whistle politics" doesn't explain a reference to "states' rights" in Mississippi with Washington Post and N.Y. Times reporters in the audience, nor would it explain why Reagan then flew to an Urban League meeting to declare in a major speech "I am committed to the protection and enforcement of the civil rights of black Americans. This commitment is interwoven into every phase of the programs I will propose." He then "made the obligatory visit to the debris-strewn South Bronx, traveled to a black publishing company in Chicago and dropped by Jackson's Operation PUSH headquarters — all in the same day."
So Reagan wound up undermining his own efforts to court the votes of African Americans and those concerned with civil rights issues, and Blacks wound up with the impression that Reagan was largely indifferent to their concerns and sensibilities, and they were probably right. But the actual chain of events is much more nuanced than what I had been led to believe by the conventional story. Indeed, instead of "Reagan deliberately spoke in racist code to pursue a southern strategy" it's more like "Reagan stupidly undermined his own campaign strategy through an ill-conceived reference to 'states rights' just before a major speech to the Urban League."
The Constitution as "a Living, Breathing Document":
I've got to defend Mike Huckabee from Hot Air on this one. Hot Air complains:
Video: Huckabee says the Constitution is a “living, breathing document” ...
I’m not going to rant about this. I will point out that Huckabee’s position doesn’t square up well with the Constitution’s amendment process — a process laid out precisely because it ought to be difficult to change the Constitution, but change is sometimes necessary, and it’s necessary because the Constitution isn’t a living, breathing document. If it were, as the proponents of that understanding tend to believe, you can find meanings in the penumbras of what’s actually written, meanings that might in fact be at odds with the plain understanding of the words themselves, without having to amend the document to find the new meaning therein. And I will also point out that the “living, breathing document” argument regarding the Constitution comes not from conservative or constructionist thinking, but from the left.
Make of all that what you will. Huckabee’s “living, breathing” statement hits at just under 4 minutes in....
To Hot Air's credit, the post links to the video, and the video is pretty clear on what Huckabee was actually saying:
[Narrator:] [R]ecently, [Huckabee] came under fire for suggesting that the constitution should be amended so that it was quote, "In God's standards." I asked him about that comment earlier on AMERICAN MORNING....
MIKE HUCKABEE, ... PRESIDENTIAL CANDIDATE: The constitution, the genius and the brilliance of it was that it was intended to be amended. That's why African-Americans are considered people, because we amended the constitution. As we needed to, to make sure that we ended slavery. We amended the constitution so women could vote. There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms.
Those are all changes to the original constitution. My point was that the constitution was a document. It's a living, breathing document written in order that it could be changed. The scriptures, however, were not written so that we would change them to adapt them to ever-changing cultural norms.
Huckabee was arguing that there's nothing inherently wrong with amending the constitution — precisely because (in Hot Air's words) "change is sometimes necessary." Huckabee's reference to "living, breathing document" simply means a document that must remain relevant to today's problems, and that thus should be changed when change is necessary.
It's true that the phrase is often used by those who urge some degree of judicial updating of the constitutional rules, and generally more such updating than conservatives such as Huckabee like. But whether Huckabee was deliberately trying to appropriate the other side's metaphor to illustrate the right way of making the Constitution "liv[e]" and "breath[e]," or used the words without thinking of the way the other side used them, he expressly made clear that he was talking about using "the Constitution's amendment process" rather than about the judicial reinterpretation that Hot Air is condemning.
As to the supposed tension with Huckabee's Web site, which says (in the part Hot Air quotes), "I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a 'living Constitution,'" I think the tension is rhetorical and not substantive. On the site, Huckabee is explicitly condemning the "living Constitution" approach in the sense of judicial reinterpretation of the Constitution: "The meaning of the Constitution cannot be changed by judicial fiat." In the interview, he's equally explicitly talking about changing the meaning of the Constitution through the expressly constitutionally provided amendment process.
I think Fred Thompson's response is also overstated, and reads more into the use of "living, breathing document" than the context warrants. But at least Thompson expressly acknowledges that "Governor Huckabee was talking about amending the Constitution," and faults him chiefly for "using code words that support judicial activism." [Conceivable conflict-of-something alert: I've contributed to the Thompson campaign, and I'm a member of Lawyers for Fred Thompson.]
Thanks to InstaPundit for the pointer.
Barron & Lederman on Exclusive Article II Powers:
David Barron & Marty Lederman have published a new article on war powers, The Commander In Chief At The Lowest Ebb — Framing The Problem, Doctrine, And Original Understanding
. From the introduction:
This Article. . . is the first of a two-part effort to determine how the constitutional argument for preclusive executive war powers, now being pressed so boldly, is best conceived. Is it properly understood to be rooted in fidelity to the founding generation? Does it reflect instead the principles established by a longstanding constitutional tradition that, although concededly at odds with that early understanding, has emerged over time as exigencies presented themselves? Or is it instead dependent on the stark contention that the world has changed, due to either the advent of nuclear weapons or the rise of terrorism, in such a way as to render obsolete and intolerable the constitutional mechanisms for checking the Commander in Chief that earlier generations consistently accepted?
The conclusion: The Bush Administration's constitutional vision is all about a living, breathing Article II.
Ron Paul and the Political Strategy of Appealing to White Racial Resentment:
Julian Sanchez and David Weigel have an interesting article in Reason compiling evidence suggesting that Llewellyn Rockwell of the Ludwig Von Mises Institute was the author of the notorious racist and anti-Semitic material published in Ron Paul's political reports in late 1980s and early 90s.
To me, the most important part of the article is not the possiblity that Rockwell wrote the newsletters but the fact (mentioned only in passing) that Paul apparently supported Rockwell and Murray Rothbard's political strategy of appealing to white racial resentment as a strategy for gaining support for what they called "paleolibertarianism" (a combination of libertarianism and paleoconservatism). According to Sanchez and Weigel, Paul even went so far as to abandon his planned 1992 presidential bid in order to support Pat Buchanan's candidacy, which Rothbard and Rockwell had endorsed. It is difficult to imagine an American political platform much more inimical to libertarianism than Buchanan's combination of protectionism, support for economic regulation, nativism, racial resentment, thinly veiled anti-Semitism, and extreme social conservatism. Unlike the newsletters, Paul's apparent embrace of Buchanan's candidacy and the Rothbard-Rockwell racialist political strategy can't be blamed on the misdeeds of ghostwriters whose work Paul was supposedly unaware of.
Finally, it's worth mentioning that the Sanchez-Weigel article represents a welcome break from Reason's previous overly enthusiastic approach to Paul's presidential candidacy, a policy that was rightly criticized by former Reason editor in chief Virginia Postrel. Even in this article, however, I have a few minor nits to pick. For example, I think that Sanchez and Weigel are too quick to conclude that Rockwell and his "paleolibertarian" associates have abandoned their previous racial rhetoric "since 2001." As libertarian writer Tom Palmer shows in a long series of posts, they continue to indulge in racist and homophobic appeals - now mixed in with praise of terrorists and anti-American dictators (and I do mean praise of these groups, as distinct from simply criticisms of US policy towards them).
CONFLICT OF INTEREST WATCH: I suppose I should mention that I myself have written articles for Reason on unrelated issues. I think it's generally an excellent publication. But they did for a time miss the boat on Paul's shortcomings. However, I can't quarrel much with Sanchez and Weigel's current bottom line on Paul:
Ron Paul may not be a racist, but he became complicit in a strategy of pandering to racists—and taking "moral responsibility" for that now means more than just uttering the phrase. It means openly grappling with his own past—acknowledging who said what, and why. Otherwise he risks damaging not only his own reputation, but that of the philosophy to which he has committed his life.
UPDATE: The broken link to the Reason piece has been fixed. Thanks to commenters for alerting me to the problem.
Not often that you see a judge complaining about a "seditious doctrine." Here's one instance, though, from a November 2007 concurrence by Justice Richard B. Sanders of the Washington Supreme Court:
I also note with alarm the seditious doctrine sometimes embraced by our majority that even our Declaration of Rights is itself trumped by exercise of the state's police power, a power which a majority of my colleagues seems to believe with their new-found wisdom has no limits whatsoever.
Not just mistaken, unsound, and the like -- seditious.
Suggested Corrections for Jeffrey Toobin's The Nine:
Jeffrey Toobin e-mails:
I just wanted to let you know that I've been reading the posts about my discussion of Kelo in the Nine with great interest. In light of what I've learned, I suspect I'll be making some changes for the paperback. Again, feel free to post this note and let folks know I welcome any other corrections, comments, etc. Cheers, Jeff
Naturally, I'm delighted to pass this request along.
Related Posts (on one page):
- Suggested Corrections for Jeffrey Toobin's The Nine:
- Jeffrey Toobin on Kelo:
Someone's Got a Dirty Mind:
A lot of advertising uses sexual appeals (not just nice-looking people, but something well beyond that). But it usually doesn't involve people fully dressed is snow gear:
Still, some people are up in arms, according to Consumerist:
A Target billboard depicting a woman spreadeagled over a Target logo with her vagina centered squarely on the bullseye has some parents and feminists all riled up. One of them, Amy from ShapingYouth.org, contacted Target to see if they realized, you know, that their ad had a woman's crotch centered on a bullseye.
Advice Goddess Amy Alkon has, I think, the better view: People dressed in snowgear who are in that position are usually making snow angels (or, in rare instances, doing a highly bowdlerized version of da Vinci's Vitruvian Man), not preparing for sex or showing off their vaginas.
Of course, we're all free to think that "when correctly viewed, everything is lewd," and titter at whatever we find titterable. But making a fuss about how vile these ads are says more about the fussmaker than about the ads.
This, of course, brings up this old chestnut:
A man goes to a psychiatrist. The psychiatrist shows him an ink blot and asks him what he sees. "A man and a woman having sex," the patient says.
The psychiatrist shows him another ink blot. "That's a man and two women having sex," the patient says.
The psychiatrist shows him another ink blot. "That's two men and a woman having sex," the patient says.
The psychiatrist says, "I'm afraid you're excessively obsessed with sex."
"Me!?," says the patient. "You're the one who's showing me the dirty pictures!"
Ninth Circuit Grants Rehearing in United States v. Seljan:
The Ninth Circuit has voted to grant the petition for rehearing
in United States v. Seljan
, a case that considers how the Fourth Amendment's border search exception applies to the search of a FedEx package sent from California to the Phillipines. In the original panel opinion
, Judges Gould and Clifton applied prior Ninth Circuit precedent and found that the search need not be based on reasonable suspicion so long as it was "reasonable" based on "the scope of the intrusion, the manner of its conduct, and the justification for its initiation." In a partial concurrence and partial dissent, Judge Pregerson argued that such searches such require reasonable suspicion.
This one will be interesting to watch because the Ninth Circuit's border search cases can be rather out-of-step with U.S. Supreme Court precedent. As I explained in this post
in 2005, "In recent years, the Justice Department, the Ninth Circuit, and the Supreme Court have been involved in a bit of a tug-of-war over the rules that should govern invasive car searches at the Mexico border." The big question in these cases, and in border search cases more broadly, is whether to require reasonable suspicion before a border search can occur. The U.S. Supreme Court's cases suggest the answer is no, see, e.g., Flores-Montano
, but the Ninth Circuit's cases are much more friendly to a "yes" answer. Given the rehearing in Seljan
, it will be interesting to see if the Court ends up bringing its precedents more in line with the Supreme Court's or takes a different view.
UPDATE: ADL's Foxman Condemns Rev. Wright; Obama Criticizes Wright, but not re Farrakhan:
As I've discussed previously, Senator Obama's church's magazine, The Trumpet, recently honored Louis Farrakhan at a banquet for his devotion to "truth." The magazine quoted Obama's "spiritual mentor," Rev. Wright, as praising Farrakhan for his "astounding and eyeopening" analysis of the "racial ills of this nation," a "perspective" that is "helpful and honest." Farrakhan, of course, is notorious for inflammatory and bigoted comments against whites in general, and Jews (not all of whom, I should note, are white) in particular. The Nation of Islam, which he leads, sells and promotes publications promoting various anti-Semitic conspiracy theories.
When Wright's remarks and The Trumpet's award created a public controversy, Obama forthrightly condemned Louis Farrakhan's anti-Semitism, but said nothing about Rev. Wright's fulsome praise for Farrakhan. He also suggested that the magazine's decision to honor Farrakhan likely related to his work with ex-offenders, a decision he nevertheless disagreed with. Many found his depiction of the magazine's motives disingenuous, given the public record as to the stated reasons for the award to the contrary.
Obama's defender's on the issue, including some VC commenters, eagerly reported that the ADL issued a press release that seemed to hold Obama harmless, indeed, praised Obama's
condemnation of the anti-Semitic rhetoric of Louis Farrakhan, and his making clear that he did not agree with his church’s decision. ... Issues of racism and anti-Semitism must be beyond the bounds of politics. When someone close to a political figure shows sympathy and support for an individual who makes his name espousing bigotry, that political figure needs to distance himself from that decision. Senator Obama has done just that.
There is, however, a further development, which I suspect will lead some Obama defenders to regret relying on the ADL as authoritative on this issue:
In an interview with The Jewish Week, [ADL leader] Foxman said this must be just a first step. "He's distanced himself from his pastor’s decision to honor Farrakhan. He has not distanced himself from his pastor. I think that’s the next step. One can now expect from Sen. Obama that he confront his minister." Ultimately, said Foxman, if Obama is unable to influence Wright to alter his stands, "I think he has an obligation to leave."
Foxman added with regard to Wright that "I would say he is a black racist." He later amended his remarks, stating that Wright "embraces, awards and celebrates a black racist. I think [calling him] racist is going a little bit too far." [Question a reporter might pursue: Does the ADL's turnabout on the issue mean that it took flak from its constituents for leaping so vigorously to Obama's defense, despite his failure to distance himself from Wright's remarks?]
I don't think that Obama necessarily has to leave his church, or even "confront" Wright. However, it would be more than welcome to discover that Obama has made clear his displeasure with the Farrakhan endorsements.
There are those who have argued that it's unfair to ask even this of Obama. While I have disagreed, the point that one shouldn't hold Obama responsible for answering for the statements of his minister has some rhetorical force, even if Obama himself has noted Wright's importance his own intellectual and spiritual development. But it's rather harder to maintain the position that Wright's comments don't reflect on Obama now that Obama has publicly criticized Wright for stating during a sermon that Bill Clinton did "the same thing to us that he did to Monica Lewinsky." Obama issued a statement: "As I've told Reverend Wright, personal attacks such as this have no place in this campaign or our politics, whether they're offered from a platform at a rally or the pulpit of a church." Obama added: "Like a member of my own family, there are things he says at times with which I deeply disagree," he said. "But as he prepares to retire, that doesn't detract from my affection for Reverend Wright or appreciation for the good works he has done."
Obama's defenders will undoubtedly point out that compared to the Farrakhan remarks, Wright's condemnation of Clinton was much more directly campaign-related, and could have raised suspicions that Obama was using Wright as a surrogate. Fair enough. But The Trumpet's decision to honor Farrakhan was not campaign-related, and Obama did see fit to comment on that, instead of taking the position that his relationship with his church is a purely private religious matter. His surrogates, meanwhile, eagerly spun the controversy, with some success, as about a "magazine edited by Rev. Wright's daughter," obfuscating that the reason for the controversy is that the magazine is sponsored by Obama's church, and, even more significant, that Rev. Wright himself praised Farrakhan.
Related Posts (on one page):
- UPDATE: ADL's Foxman Condemns Rev. Wright; Obama Criticizes Wright, but not re Farrakhan:
- Cohen, Obama, and the Blogosphere:
The Legal Scholarship Blog:
It's here, and it looks like a great resource for publicizing -- and finding out about -- law-related conferences, calls for papers, and workshops.
Thursday, January 17, 2008
Should Have Seen That Coming:
From the Web page of The Astrological Magazine: "We regret to announce that due to unforeseen circumstances beyond our control, the publication of The Astrological Magazine will cease with the December 2007 issue."
(Hat tip: GeekPress.)
Accommodations for Female Muslim Athletes:
I've written before about Muslim requests for religious exemptions from generally applicable rules — chiefly to point out how similar these often are to non-Muslim requests for such exemptions, and to argue that we shouldn't get particularly exercised about them (though neither should we categorically accept them, any more than we should accept such requests from Christians, Jews, or others).
Reader Stephen St. Clair pointed me to the latest such request in the news (from the Washington Post):
Juashaunna Kelly, a Theodore Roosevelt High School senior who has the fastest mile and two-mile times of any girls' runner in the District this winter, was disqualified from Saturday's Montgomery Invitational indoor track and field meet after officials said her Muslim clothing violated national competition rules.
Kelly was wearing the same uniform she has worn for the past three seasons while running for Theodore Roosevelt's cross-country and track teams: a custom-made, one-piece blue and orange unitard that covers her head, arms, torso and legs. On top of the unitard, Kelly wore the same orange and blue T-shirt and shorts as her teammates.
The outfit allows her to compete while complying with her Muslim faith, which forbids displaying any skin other than her face and hands.
As one of the other heats was held, two meet officials signaled to Kelly and asked her about her uniform. Meet director Tom Rogers said Kelly's uniform violated rules of the National Federation of State High School Associations, which sanctioned the event, by not being "a single-solid color and unadorned, except for a single school name or insignia no more than 2 1/4 inches."
Rogers then told Kelly she was disqualified....
Now there is some controversy about whether the officials' objection was simply to the uniform's not being suitably single-colored, or to the uniform's covering the head. If the track and field organization only wants to impose color rules, to which to my knowledge Kelly and other Muslims wouldn't object, then there'd be no problem with that in general. I do think it was needlessly cruel to bar the girl from running in this event, based on what sounded like an honest mistake; it's not like her violation of the color rules would give her some unfair advantage over other runners. Still, insisting on compliance with such rules for the future wouldn't be at all objectionable.
But if an organization does insist on enforcing some rule (if there is one) against head coverings, that strikes me as wrong — likely not illegal or unconstitutional (unless it's motivated by hostility to Muslims, which I doubt), but needlessly harmful to young athletes. Just as male Orthodox Jews' desires to wear head coverings should be accommodated even in the face of otherwise uniform restrictions on athlete headgear (assuming there's no safety problem caused by the head coverings, for instance if they are sufficiently securely attached), and just as Sikh men's desires to wear turbans should be accommodated, so should Muslim women's desires to wear headgear and long pants.
Here's the basic problem: There are some restrictions that are of only modest importance to the government (or an educational organization or an employer or others), but are implemented because they impose only a slight burden on the average person. Yet for people in some religious groups, they impose a much greater individually felt burden, which is why they ask for an exemption.
Our society has a long, honorable, and generally highly beneficial (though not perfectly adhered to) tradition of accommodating a wide range of religious beliefs — of trying to make sure that people can have, whenever reasonably possible, all the rights and opportunities available to other members of American society without having to give up their religious views. This dates back over 200 years, with exemptions from oath requirements for Quakers and other groups, exemptions from military service for pacifist religious sects, and a wide range of other kinds of exemptions from otherwise generally applicable laws.
This doesn't mean we accommodate every request, no matter how burdensome to others. If an exemption would somehow hurt others, or substantially increase the burden on others, that will often be a good reason to deny the request. (Exemptions from military service, for instance, are understandably controversial on this score, and have always been limited in some measure.) It may even be proper to deny the exemption if the exemption would risk substantially hurting the exempted person; the organization involved might not want to be a party to such possible accidents. If there was reason to think that any garment required by the Muslim girl would either seriously risk heatstroke or tripping, or unacceptably cut off her peripheral vision so she would stumble or run into others, that might be reason to reject the request.
But I see no reason why there would be such an inherent danger here (at least if the garment is properly designed). And when an exemption is very cheap for the organization, and the main barrier is just an insistence on following the rule — a rule usually made without any real consideration of the stark burden it imposes on some religious observers — relaxing the rule strikes me as the right thing to do.
Again, this is not necessarily a legal obligation (employers are generally required to accommodate religiously objecting employees when doing so is very cheap, but other institutions usually aren't) and certainly not a constitutional one: the organization involved here may well be a nongovernmental one and thus not bound by the constitutional religious freedom provisions, and in any case it's likely that the constitutional provisions don't mandate exemptions in these sorts of cases even when the rule is government-made. But I do think that granting an exemption from a no-headgear policy would be the right thing to do, especially for an organization that is aimed at trying to encourage young athletes.
Finally, I realize that some might specifically object to Muslim head covering claims, on the pragmatic grounds that such coverings tend to reinforce the subjugation of women, and are therefore potentially harmful to society. I don't think that's generally a good enough reason to reject an exemption request; but here it strikes me as particular counterproductive.
Here is a Muslim girl who is engaging in an activity that is far from stereotypically feminine or subjugated. If she succeeds, and other devout Muslims girls follow her example and become more involved in sports and in competition, I think this help those girls, and incidentally help them undermine whatever norms of female subservience might exist in their communities. Conversely, if devout Muslim girl are excluded from such activities, I doubt they're likely to just set aside their head coverings and become good gender-egalitarian secularists (or Muslim reformers); rather, most of them are likely to retreat into more traditional pursuits. Religious accommodation thus strikes me as the practically wise thing to do, as well as the kind thing for the girls who seek the accommodation.
Severe or Persuasive Harassment:
A surprisingly common legal concept, it turns out: "Severe or persuasive" and "severe and persuasive" appear nearly 100 times in Westlaw-searchable cases, and my quick glance at some originals suggests that this isn't just a Westlaw glitch.
The actual legal phrase, of course, is "severe or pervasive," which is what speech or conduct must be in order to create a "hostile, abusive, or offensive work [or educational] environment." "Severe or persuasive," though passes the spell-checkers and the casual eyeballing.
California Association of Scholars Conference on Race and Sex Preferences,
at USC this Saturday; an interesting gathering of critics of affirmative action (including Ward Connerly, Tom Wood, Gail Heriot, and others) -- wish I could be there, especially because of the discussions about the political future of anti-race/sex-preferences campaigns. From being at past conferences such as this, my sense is that this is going to be quite substantive, though intentionally focused on the anti-preferences side. I know a lot of these people from my work on California's Yes on Prop. 209 campaign, and respect them highly.
Why Are New York State Trial Judges Called "Supreme Court Justices"?:
In Washington, DC, Supreme Court Justices are a pretty big deal. In New York, though, they're pretty common. That's the case because in New York the "Supreme Court" is the trial court, whereas the state's highest court is the "Court of Appeals." The question is, why?
As best I can tell from a bit of googling, the practice seems to go back, with some modification, to the New York Constitution of 1777
. That Constitution set up an appellate system modeled after the House of Lords
. Appeals from trial courts of general jurisdiction were heard by a gathering of all of the available state trial judges, the state senate, and the state chancellor in charge of the equity courts. They met in what was called "the Court for the Trial of Impeachments and the Correction of Errors."
Because that "court" was really a collection of trial judges and state senators, there was no distinct "high court" consisting of members who only served in that court. The trial judges in the courts of general jurisdiction were as "high" up as the New York Court system went, as they both heard proceedings as trial judges and in the Court for the Trial of Impeachments and the Correction of Errors. Given that, it wasn't too strange to label these judges as Justices of the Supreme Court.
In the 19th Century, the Court for the Trial of Impeachments and the Correction of Errors was abolished and replaced with a more modern appellate court. Instead of renaming everything, the trial courts kept the name "Supreme Court" and the high court was named the "Court of Appeals."
Anyway, that's what a bit of googling suggests. I'm sure the VC's readership includes experts in the history of the New York court system; if I'm getting the history wrong, or there are details or links to add, I hope you will consider pointing it out in the comment thread.
Mike Huckabee Hasn't Been Paying Attention to His Bible:
From a Beliefnet interview:
And the same thing would be true of marriage. Marriage has historically, as long as there’s been human history, meant a man and a woman in a relationship for life. Once we change that definition, then where does it go from there?
Christians and modern Jews do not approve of polygamy, but surely anyone who believes in the Bible has to acknowledge that it attests to the widespread existence of marriage between a man and multiple women. (Nor is Huckabee just saying "a man and a woman" as a slip for "heterosexual"; immediately after this, he goes on to distinguish "a man and three women.")
Now of course we see polygamy in plenty of cultures in recent human history as well — Islamic cultures, some American Indian cultures, and many more. And of course we have lots of historical evidence of men and women in a relationship that is not for life; consider ancient Rome, or for that matter the growing tolerance for divorce in Western Christian cultures over what is now centuries (remember Henry VIII?). But it's striking that here Huckabee is forgetting what is described in the Bible itself.
I should stress that none of this responds to the traditionalist case built on longstanding American or Christian traditions of heterosexual monogamy, or for that matter to a traditionalist case built on longstanding broad traditions of not treating homosexual unions as marriages. But Huckabee seems to be deliberately trying to make an appeal to supposedly universal (at least nearly universal) traditions that go beyond just rejection of same-sex marriage. And that appeal is just factually unfounded, as his own religious histories and his own profession (as minister) should teach him.
UPDATE: I had thought I'd made this clear in the original post, but let me repeat it: I'm objecting to Huckabee's "historical" claims, and saying they're inconsistent with the Bible's own account of history. I am not responding to Huckabee's moral claims; I am criticizing his attempt to buttress his moral claims with what strike me as factually unsound (and Biblically contradicted) assertions about what has been the case throughout "human history."
FURTHER UPDATE: My colleague Stephen Bainbridge (who's considerably more conservative on social issues than I am) agrees.
Wednesday, January 16, 2008
A Classic Libertarian Ad:
David Beito at Liberty and Power wonders why Ron Paul isn't using his financial resources to project a libertarian message.
Though I was only 13, I still remember hearing a radio ad for Libertarian Party presidential candidate Ed Clark, the most successful (1% of the vote in a five-way race with Reagan, Carter, Anderson, and Barry Commoner) Libertarian Party presidential candidate in its history. It went something like this: "Ronald Reagan says he wants to cut the fat out of government. I want to cut the lean. When I'm president, I'll cut federal spending and federal taxes by 50 percent, and close all American military bases abroad." I didn't quite know what to make of it at the time, but it piqued by curiosity.
I also remember part of Citizen Party candidate Commoner's ad, which was rather less edifying: "Reagan, Carter, it's all BULLSHIT!" I remember Commoner had to sue the stations to get them to run the ad.
From One of the High School Asteroid Discoverers:
I e-mailed Tim Pastika, one of the three high school sophomores who codiscovered a new asteroid, asking whether he wanted to say something about his project. He promptly responded:
Thank you. My classmates and I were recently given a choice between making a color picture (of nebulas, stars, etc.) or looking for new asteroids. Personally I thought that searching for asteroids would be so much cooler than making a picture because we might actually discover something new. However, many of the classmates were scared off by the thought of extra homework. The funny thing is we probably had to do less work than any of the other students.
When we discovered the asteroid, my friends and I -- to tell you the truth -- didn't think much of it. We were really just searching for faint moving dots.... Then we found out how extremely rare for us high school students to find these kinds of things. Astronomy is definitely something I would consider doing in the future; it's great.
P.S. I am not sure if it is official yet, but we are pretty sure we have found THREE more undiscovered asteroids.
In any case, congratulations again to Pastika, Connor Leipold, and Kyle Simpson -- good work!
Related Posts (on one page):
- From One of the High School Asteroid Discoverers:
- Now That Is Cool:
Now That Is Cool:
Three Racine sophomore students were notified on Monday that a celestial body they discovered during a science project had been verified as an asteroid.
The students at Racine's Prairie School will be able to name the asteroid, temporarily identified as "2008 AZ28," in about four years, according to the Minor Planet Center in Cambridge, Mass., the international authority on known objects in the solar system.
Sophomores Connor Leipold, Tim Pastika and Kyle Simpson were able to make the discovery thanks to technology provided from Calvin College in Grand Rapids, Mich., which is also the alma mater of the science teacher, Andrew Vanden Heuvel, school spokeswoman Susan Paprcka said.
Thanks to InstaPundit for the pointer.
Forced Medical Examinations:
A fascinating article in the New York Times City Room blog:
Brian Persaud ... asserts that he was forced to undergo a rectal examination after sustaining a head injury .... Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.
According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury. He adamantly objected to the procedure, he said, but was held down as he begged, “Please don’t do that.” As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth....
There's much more interesting factual detail, but not the thing I most want -- a link to the relevant court papers (such as the Complaint and any non-one-liner decisions by the judge). My sense, though, is that the hospital has only one possible defense: "It is not always clear what is the patient’s capacity to make decisions, especially if the doctor suspects a head injury."
The general rule is that touching someone (except in relatively de minimis ways, which this surely wasn't) without their consent is tortious battery. That's true even if one has wonderful medical motives; the doctor is supposed to get the patient's informed consent, and if he doesn't then the doctor is guilty of battery even if he saved the patient's life. There are exceptions, for instance related to compulsory immunizations, but they are generally aimed at protecting the health of others. Someone who's mentally competent may even refuse lifesaving treatment when that's clear to lead to his death; the assisted suicide debate focuses on whether others can provide him with deadly substances or tools, but it's generally well-established that someone who's mentally competent may demand that, for instance, life support be removed.
But sometimes, of course, the consent is unavailable, for instance because the patient is unconscious. And sometimes the patient may be found to be legally incapable of meaningful consent, for instance if he's insane. So the interesting legal (and moral) question here is: When there's suspicion that the patient may be incapable of consent (for instance, because of head trauma), and there's the risk of irreversible harm if the hospital takes more time to figure things out -- including if the hospital even takes more time to figure out whether the patient is indeed suffering from head trauma that might make him delusional -- may the hospital just go with what doctors find reasonable (and what most patients would usually accept)? I don't know the answer to that question, but I thought I'd pass it along.
There are also of course less broadly interesting but potentially dispositive factual questions as well -- for instance, if there were simple, quick, and effective alternatives that the doctors could have suggested instead, or if there was solid evidence that Persaud was indeed delusional, or if there was no real reason to think he was suffering from head trauma (other than his seemingly excessive reaction to an admittedly unpleasant but generally not horrible and possibly lifesaving procedure).
Random Thought on the Lawsuit Against John Yoo:
The problem with a suit like this is that it costs the plaintiff nothing, because the Yale Law School clinic is paying the bill, and would cost a typical defendant (Yoo says that he has friends who will defend him for free) lots to defend. Even if the clinic loses, and badly, it gets publicity for the charges leveled at the defendant, free p.r. for the clinic, a fundraising schtick, and an intimidation tactic to use against future government officials who disagree with its policy positions. Even if the typical defendant wins, he gets stuck with a legal bill, hundreds of hours of wasted time and energy, and a stain on his reputation from charges that are effectively exempt from libel law because they are part of a legal complaint.
In other words, it well pays the Yale clinic and likeminded activists to file lawsuits like this even if they are pretty sure that they have no chance of winning. It makes one wish for loser-pays, or at least the old version of Rule 11.
Not This Blog:
A successful blog "kind of opens the kimono and from a brand point of view lets people know who you are," says Rob Frankel, a Los Angeles-based branding consultant who has advised clients ranging from Re/Max to Honda Motorcycles and Sea World.
For the sake of our readers, my kimono stays closed. (Hat tip: How Appealing.)
"Videoconferencing Obstructed the Judge's Gaydar":
That's one of the claims in Eke v. Mukasey, a case stemming from Eke's prospective deportation for committing an aggravated felony:
Eke claims that the government violated his due process rights by conducting his hearing by televideo rather than in person. Eke contends that if the IJ had seen him in person, the IJ would have recognized that Eke is in fact homosexual.
No dice, says the Seventh Circuit. (Note that the criminal law rules, under which a defendant and the witnesses must generally be physically present at trial, don't apply in administrative cases, such as immigration hearings.)
Cohen, Obama, and the Blogosphere:
Given all the criticism that been leveled in the Left blogosphere at Richard Cohen (see, e.g., this compilation) for raising the issue of Obama's close ties to a minister and church that praise and honor Louis Farrakhan for his "honesty" and devotion to truth, I'm sure glad that prominent liberal bloggers, and leading Cohen-basher Andrew Sullivan never think to cast aspersions on other candidates because of their rather less close ties to other religious leaders with dubious views. Otherwise, I might have to think that some of the criticism of Cohen is hypocritical. [Above links from about ten minutes of searching, I'm sure there are lots more examples.]
Just A Random Thought:
A hypothetical news story reporting that John Yoo authored an OLC memo rejecting the individual rights view of the Second Amendment would cause the entire blogosphere, both left and right, to instantly explode.
Yoo on Padilla v. Yoo:
In today's Philadelphia Inquirer, John Yoo responds to the lawsuit filed against him by a Yale legal clinic on behalf of Jose Padilla.
Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.
After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.
They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.
"Lawfare" has become another dimension of warfare. . . .
Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.
My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.
Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?
If so, then we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.
Tuesday, January 15, 2008
My First Post -- Crime Victim's Right to Be Heard:
Well, it's nice to be aboard. I'm excited to be a part of this great group — thanks Eugene for thinking of me.
I noticed that when I was introduced as a co-conspirator, a few readers wondered whether I really left my old job as a federal district court judge here in Salt Lake City mainly to do pro bono crime victims' litigation and research on similar subjects. Well, actually, yes I did.
Providentially, my last day on my old job I picked up a copy of the Salt Lake Tribune to read a story entitled something like "Crime Victims Denied Day in Court." The article was about Sue and Ken Antrobus, whose daughter Vanessa was murdered at the Trolley Square massacre last February. For more about Vanessa (the first in her family to graduate from college), go to her memorial website. I now represent them on crime victims' issues — pro bono, since they have limited income.
Vanessa was murdered with a Smith & Wesson .38 handgun, criminally sold to Sulejman Talovic by Mackenzie Hunter. Hunter, a cocaine user at the time, had previously stolen the handgun. Here are the salient facts: Talovic approached Hunter, asking for help getting a handgun. He explained that he was 17, and therefore couldn't buy one legally. Hunter asked why he wanted to buy a handgun, and Talovic said it was to rob a bank. (Hunter apparently claims he thought this was a joke.) Knowing full well that it was a violation of criminal law to sell to Talovic, Hunter sold the handgun and seven months later Talovic committed the largest mass murder in modern Utah history.
Talovic was killed that night (by an armed, off-duty police officer). Hunter was later prosecuted here in Utah by federal prosecutors, who charged him with felony illegal sale of a handgun to a minor "knowing and having reasonable cause to know" that the handgun would be used in a crime of violence. After Hunter pled guilty to the misdemeanor version of this charge (no allegation of knowing, etc.), Sue and Ken sought my help to make a "victim impact statement" on behalf of their daughter at his sentencing. Under federal law — the Crime Victims Rights Act, 18 USC 3771 — they entitled to do so if Vanessa was "directly and proximately" harmed by Hunter's crime. The district judge held that she was not so harmed — and also declined to use his discretion to hear from them at sentencing.
Under the CVRA, crime victims are entitled to file for a writ of mandamus in the Court of Appeals, and we did so last week with this document.
Unfortunately, last Friday, the Tenth Circuit ruled against the Antrobuses
The Circuit said that when Congress authorized crime victims to petition for a "writ of mandamus," it did not intend for victims to have ordinary appellate rights like other litigants. Rather, the Circuit thought that the mandamus jurisprudence required that the crime victim's claim be "clear and indisputable." In doing so, the Tenth Circuit specifically rejected rulings from the Second and Ninth Circuits that crime victims' were entitled to ordinary appellate review. Under that demanding standard, the Circuit thought this was a "difficult" case, but concluded that the Antrobuses had not shown their entitlement to speak in court was clearly proven.
Judge Tymkovich, concurring, wrote separately to say that the process in the case had been unfair to the Antrobuses. The "bank robbery statement" that I mentioned above, was disputed by the defense, and the district court seemingly concluded that it had never been made — a fact that majority then used against the Antrobuses. Judge Tymkovich thought that the Antrobuses should have received a better opportunity to discover information about that statement.
On Monday, we went back to the district court to seek discovery on the issue of whether the government had information in its file proving the bank robbery statement. My former colleague Judge Kimball, a very thoughtful judge who moves his cases rapidly, ruled against us in a written opinion a matter of minutes, and then sentenced Hunter to 15 months in prison (the low end of the applicable sentencing guideline range.)
So there you have it — we will be back to the Tenth Circuit shortly, asking for rehearing on the question of whether crime victims should be rendered second class citizens in the federal courts — lacking ordinary appellate review of their claims — and seeking review of Judge Kimball's decision to deny the Antrobuses any information about whether Hunter and Talovic discussed a bank robbery during the gun sale — again, a right that other litigants routinely receive.
I will have more to say about all this ... after I see what the readers think. No one should be surprised that, imho, Sue and Ken should have their day in court.
But This One Goes to Eleven:
Talking Points Memo's Paul Kiel is reporting
that TPM has been cut from DOJ's e-mail distribution list for media organizations. The list apparently sends out DOJ's press releases, saving recipients the trouble of constantly checking DOJ's website for press releases to see if there is news about DOJ. What's the reason that TPM — a frequent and influential critic of DOJ — has been cut? According to DOJ, there's just no more room on the e-mail list.
The money quote: "unfortunately I am not able to add you to our distribution list. As you may realize we have a lot of requests to be put on our media lists and we simply are not able to put everyone on the list." Uh huh.
Sex Segregation on Israeli Public Buses:
The High Court of Justice will hear a petition Monday against sex-segregated public buses known as mehadrin lines, which are meant to serve the ultra-Orthodox community.
Orthodox American-Israeli novelist Naomi Ragen and the Israel Religious Action Center, the advocacy arm of Israel's Reform movement, brought the petition a year ago in a bid to sharply reduce the operation of sex-segregated buses and prevent men and women from being forced to sit separately.
The state argues that the segregation — with men sitting in front and women in back — is voluntary and that the companies operating the mehadrin lines "are prohibited from forcing the voluntary arrangement on the rest of the passengers who are not interested in it...." ...
In practice, however, passengers have complained that they feel coerced — sometimes by physical violence — into sitting in the designated section of the bus.
Ragen decided to file suit after unintentionally boarding a mehadrin line, Egged's No. 40 bus, toward her home in the Jerusalem neighborhood of Ramot in July 2004. "I found myself insulted, humiliated and physically threatened because I refused to be bullied into giving up my seat and moving to the back of the bus," Ragen wrote.
In addition, Miriam Shear, an Israeli-American woman on vacation from Canada, says she was slapped, kicked, punched and pushed by a group of ultra-Orthodox men in November 2006 when she refused to move to the back of Egged bus No. 2 on its way to the Western Wall....
I don't see anything the government can reasonably do about genuinely voluntary segregation, which is not enforced through the threat of violence. But if it is indeed not adequately dealing with the violence, that's pretty bad.
The more interesting question, though, is whether and when governments in liberal democracies should, if legislators so decide, be allowed to legally enforce sex segregation (something the Israeli government claims isn't happening).
I think the answer is "sometimes." I've argued, for instance, that girls-only sports teams should be allowed in government-run schools; I'm inclined to say that sex-segregated government-run schools should also be allowed, if there seems to be good data supporting their educational value at least to one sex (and especially both).
It's true that such "separate but equal" wouldn't and shouldn't be allowed for race classifications, but sex should not necessarily always be treated like race. For instance, I think it's legitimate for the government to accommodate people's desire to be shielded when undressed (or even when partly dressed) from the opposite sex, but not legitimate for the government to accommodate (even on its own property) people's desire to be shielded from other races. Such sex-based privacy rules are much less likely than race-based privacy rules to be motivated by group hatred or perception of group inferiority, and much less likely to be divisive along group lines.
At the same time, I'm inclined to say that such government-imposed sex segregation should generally only be allowed when there's a pretty serious benefit to doing so, beyond the religious, cultural, or personal preferences of some citizens (though I should acknowledge that privacy interests are not easy to disentangle from such preferences). So I'd say that governments ought not impose segregation on publicly-run bus lines or other public places (outside restrooms and the like). But I'd like to hear what others think.
I'd also guess that either voluntary or mandatory segregation would be more appealing to many if half the buses had the women at the back and half at the front, rather than always having the women in the back.
Finally, a few remarks I've seen online about this try to analogize this to the treatment of women in Muslim countries, such as Saudi Arabia. That seems like quite a stretch, even if the government were seen as being a participant in the bus segregation. First, the treatment of women by the government in those countries is very far from "separate but equal."
Second, while I do think sex segregation may tend to reinforce traditional sex norms, norms that have generally on balance substantially restricted women, the harmfulness of this tendency is related to how much women are indeed restricted in that particular country. It may well be wrong to have sex segregation even in a country that gives women many educational, professional, and public options (as Israel does), especially when the sex segregation takes place in a particular subculture in which women may still be held back. But it's much more harmful, I think, in a country that gives women many fewer options, and where the dominant culture and not just a relatively small subculture continues to repress women.
Jeffrey Toobin on Kelo:
Gideon Kanner points out several factual errors in Jeffrey Toobin's discussion of Kelo v. City of New London in The Nine, his much-discussed book about the Supreme Court. Kanner is certainly right to take Toobin to task for his claims that, prior to the Supreme Court's issuing its decision, the case "drew relatively little attention” and “hardly seemed like the stuff of high drama.” In reality, the case had already attracted extensive press coverage and dozens of amicus briefs.
Toobin is even more wrong to attribute the immense public backlash against Kelo solely (or even primarily) to the machinations of "the conservative movement." As I note in this paper, Ralph Nader, DNC Chair Howard Dean, Bill Clinton, and liberal Democratic Rep. Maxine Waters were among those who quickly denounced Kelo when it came down. The NAACP, AARP, Hispanic Alliance of Atlantic County, and the Southern Christian Leadership Conference filed a joint amicus brief in the case supporting the property owners. I myself wrote an amicus brief supporting the property owners on behalf of the late Jane Jacobs, the famous generally left of center urban development theorist. None of the above are even remotely associated with "the conservative movement." Nor is it likely that they took the positions they did because nefarious conservatives somehow duped them into it.
It is unfortunate that one of the nation's most prominent legal journalists would make such basic errors about one of the most controversial and widely debated Supreme Court cases of the last 35 years. Eugene Volokh previously pointed out other factual errors in Toobin's book in a series of posts back in September. It is increasingly clear that Toobin's much-praised book is often unreliable.
Obama Responds to the Farrakhan Controversy:
Obama: "I decry racism and anti-Semitism in every form and strongly condemn the anti-Semitic statements made by Minister Farrakhan. I assume that Trumpet Magazine made its own decision to honor Farrakhan based on his efforts to rehabilitate ex-offenders, but it is not a decisions with which I agree."
The Senator assumes wrong. As I noted previously, Trumpet Magazine, published by his church, explicitly explained [in the video it prepared for the banquet at which Farrakhan was honored] that it was honoring Farrakhan for his purported dedication "truth, education, and leadership." Obama's spiritual mentor, Rev. Wright, [quoted in The Trumpet last Fall] praised Farrakhan for his "astounding and eyeopening" analysis of the "racial ills of this nation," a "perspective" that is "helpful and honest."
If the magazine and reverend had merely honored or praised Farrakhan for "his efforts to rehabilitate ex-offenders," it might have raised an eyebrow or two, but I don't think anyone would have found the story of much interest. So, give Obama some credit for forthrightly rejecting Farrakhan's anti-Semitism (though Farrakhan's bile goes beyond Jews to gays, whites in general, and others), and subtract some credit for his failure to address the true underlying concern, which is that the magazine and reverend say that they are honoring and praising Farrakhan precisely because of his stated political and racial views, which they claim are "honest" and reflect "truth."
By the way, last week I criticized Prof. DiLorenzo of LewRockwell.com for invoking a conspiracy theory centered around the Cato Institute to explain the controversy over the Ron Paul newsletters. Over at Talking Points Memo, Josh Marshall similarly blames the messenger by referring to Richard Cohen as an "odious slime peddler" and wondering, "Who do you figure pitched Richard Cohen on the Obama/Farrakhan column?" [And here's a rather bizarre defense of Obama by M.J. Rosenberg. Rosenberg points out that he stopped attending his synagogue on the High Holidays when it started inviting what he describes as a hate-filled rabbi to services. This somehow means that Obama is off the hook for not taking such a stance regarding his church.]
UPDATE: A reader, quite fairly, asks what I would have Obama say. How about something along these lines: "I decry racism and anti-Semitism in every form and strongly condemn the anti-Semitic statements made by Minister Farrakhan. Trumpet Magazine erred in honoring Farrakhan, who has made blatantly false statements about Jews and others, for his purported commitment to truth. The Rev. Wright similarly erred in his praise of Farrakhan, which could be read as endorsing Farrakhan's noxious ideas. I am of course not responsible for every action undertaken by my church or my minister, but as a member of the congregation and a religious follower and friend of Dr. Wright's I have made my displeasure known to the relevant parties, in private correspondence that I think would be inappropriate to share." There, that wouldn't satisfy everyone, but I think it would be enough to end the controversy.
FURTHER UPDATE: Andrew Sullivan goes ballistic on Richard Cohen for raising the issue of Obama's church and pastor honoring Farrakhan. Yet here's what Sullivan wrote with regard to Mitt Romney in 2006:
Romney was part of a church that barred blacks from the priesthood for his first 31 years. ... The only sect I can think of as equivalent is the Nation of Islam - in reverse. I don't know if Romney has addressed the question of Mormon racism in its historical practices, or whether he has a record of opposing it in his twenties, when he was a missionary for a racist church. But it strikes me as a matter that will require addressing.
Admittedly, Sullivan's accusation is that Romney belonged to a racist church, while Cohen's complaint is that Obama belongs to a church that honors racists. On the other hand, Cohen's complaint is about current church and ministerial behavior, Sullivan's about decades-old practices. I don't see how Sullivan can logically question Romney as he did, and then be so outraged regarding Cohen.
The "Public Airwaves" Argument, Wireless Communication, and the Kindle:
Ron Collins at the First Amendment Center poses an interesting question: Will the "public airwaves" argument — which has been used as justification for the Fairness Doctrine and other content-based broadcast regulations — be used to urge regulations on wireless downloads to e-book readers?
I hope not, either because radio and non-cable television will be upgraded by the Court to full First Amendment protection, or because the public airwaves argument would at least be limited so as to exclude nonbroadcast communication (though if you're serious about the notion that the government has more power to impose content-based restrictions when the "public airwaves" are involved, that notion would seem to apply to cellular communications as well as to broadcast ones). Still, Collins is right to note the potential dangers of the "public airwaves" rationale.
Cohen on Obama's Church and Farrakhan:
The issue is quickly hitting the mainstream, as the Washington Post's Richard Cohen has a column today that starts:
Barack Obama is a member of Chicago's Trinity United Church of Christ. Its minister, and Obama's spiritual adviser, is the Rev. Jeremiah A. Wright Jr. In 1982, the church launched Trumpet Newsmagazine; Wright's daughters serve as publisher and executive editor. Every year, the magazine makes awards in various categories. Last year, it gave the Dr. Jeremiah A. Wright Jr. Trumpeter Award to a man it said "truly epitomized greatness." That man is Louis Farrakhan.
Obama's close ties to Rev. Wright and Trinity United raise two related issues. First, as I noted yesterday, Obama campaigns as a "uniter." Yet his spiritual mentor, and longtime pastor of his church, is an ardent admirer of Louis Farrakhan. One can even argue that Farrakhan has done some admirable things, despite his racist demagoguery. Unfortunately, Rev. Wright's praise for Farrakhan is precisely based on Farrakhan's racist demagoguery, what Rev. Wright calls Farrakhan's "astounding and eyeopening" analysis of the "racial ills of this nation," a "perspective" that is "helpful and honest." Such as "White people are potential humans - they haven't evolved yet"? Or "they [the Jews] are the greatest controllers of black minds, black intelligence." For Obama to merely brush this all off as "I don't always agree with Rev. Wright" doesn't exactly satisfy. People are routinely judged, after all, by the company they keep, and one would think that someone running for president as a "uniter" would have kept rather different company.
Relatedly, one implication of electing a president is that his "circle" suddenly becomes much more powerful and influential. At the very least, if Obama wins, if his spiritual life remains constant, Rev. Wright will inevitably become one of the most influential ministers in the world, and his church one of the most important churches. Remember Rabbi Michael Lerner's moment in the sun when Hillary Clinton consulted him about the "politics of meaning"? And Hillary, of course, isn't even Jewish! Rev. Wright is not the most pressing issue facing Democratic voters, but given the relatively small policy differences among the Democratic candidates, it's certainly worth considering on the margin (as is, for example, the implications of returning to power such lovely members of the Clinton circle as Sidney Blumenthal).
Finally, it strikes me as completely fair to raise this issue, at least given the current accepted role of religion in politics in the U.S., and the widespread importance placed on tolerance. Pres. Bush has (properly) been criticized for giving a speech at Bob Jones University, which had a ban on interracial dating based purportedly on its leaders' interpretation of Christian scripture. (I say purportedly because after all the bad publicity that attended Bush's visit, the policy was dropped). Mitt Romney has felt obligated to address the Mormon church's past history of bigoted teachings and policy. Giuliani and McCain have been criticized for playing footsie with Pat Robertson and Jerry Falwell, respectively; imagine if they had announced that these men were their close friends and spiritual mentors! If there's some reason Obama deserves a special pass on this, I can't think of it.
UPDATE: An interesting angle that I noticed perusing some related commentary. Rev. Wright is obviously a smart, savvy individual. He knows that many of his views are controversial, and told the NY Times last year that he understood he could cause some problems for Obama. So why have his magazine honor Farrakhan, and why be quoted praising Farrakhan, in the middle of Obama's campaign for president? Odd.
FURTHER UPDATE: Here's the video created to honor Farrakhan at the Trumpet Gala. After a clip of Farrakhan discussing his willingness to die for "truth," The narrator explains that Farrakhan is being honored for his commitment to truth, education, and leadership. Thanks for ruining my breakfast...
Monday, January 14, 2008
Bogus Statistics, Courtesy of the L.A. Times Editorial Board?
Late last month, an L.A. Times editorial reported that "In our America, 60 million people survive on $7 a day" — which is to say that 20% of the population survives on $2555 or less a year.
That's obviously way wrong: As of 2006, according to the Census, 12.3% of the population lived at or below the poverty level, which was $10,294 for a single person and $24,382 for the average family of five ($23,691 if one assumes only one adult and four children). Thus, even if all the poor people in the country were in families of one adult and four children (which I suspect substantially overestimates the average family size), that would mean 12.3% of the population surviving on $4600 or less, not 20% on $2555 or less. Naturally, I wouldn't want to live even on $10,294 per year, but the Times made a specific assertion about a particular number. It's pretty clearly a false assertion.
Annie Jacobsen (Pajamas Media) tries to track down the source of the error, in considerable detail; I encourage you to read Jacobsen's piece, which among other things suggests the Times is too ready to rely on advocacy sites rather than tracking down the facts itself. Among other things, Jacobsen reports that she questioned the Editorial Page Editor about this, in enough detail, I think, to put him on notice that there might be a problem there; my quick search, though, suggests that the Times hasn't published a correction.
Jacobsen's story also shows how careless or insufficiently skeptical editors can fall prey to a journalistic broken telephone: Once one tracks down the source of the $7 a day statistic, one finds it in this N.Y. Times story, which says -- with various sensible qualifiers -- that, according to IRS data, "the poorest 60 million Americans reported [to the IRS] average incomes of less than $7 a day each" (emphasis and bracketed material mine). "The I.R.S. data does not include the value of government benefits like food stamps, the earned-income tax credit for working families and subsidized medical care. It also excludes unreported income, which the Treasury Department and the I.R.S. have said is a major and growing problem among the highest-income Americans, especially those who own businesses, invest in stocks and have overseas financial interests." There's a lively debate in the comments to Jacobson's post about the N.Y. Times story, and the debate includes posts from the author to the story. But it's pretty clear that even if the N.Y. Times story is right, the L.A. Times' indirect echo of that story is way wrong.
Thanks to OpinionJournal's Best of the Web for the pointer.
Former Federal Judge Joins Notorious Conspiracy:
I'm delighted to report that the judiciary's loss is our gain: Prof. Paul Cassell will be joining us a coblogger.
Paul is a law professor at the University of Utah and a leading scholar on victim's rights, criminal procedure, and sentencing; from 2002 to 2007, he served as a Judge of the U.S. District Court for the District of Utah. If you're interested, you can see Paul's extremely impressive c.v. here. Welcome, Paul, to our merry band!
Active Liberty and the Second Amendment. The media and politics:
In today's Legal Times, I have an article which applies Justice Stephen Breyer's methodology in his book "Active Liberty" to the Second Amendment. The article argues that the interpretive approach of Active Liberty helps to understand why both clauses of the Second Amendment point to a meaningful individual right for the 21st century.
In a column for Saturday's Rocky Mountain News, I offered readers some tips for following politics in the new media environment. Some of the suggestions will be familiar to readers who know the Internet well. But at least one may not be: There is no subsitute for going to listen to a candidate speak in person.
May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?
It seems to me pretty clear that it may not, because such picketing -- whether related to labor issues, the merits of the movies the theater was showing, or whatever else -- is protected by the First Amendment, at least in traditional public forums such as parks or sidewalks.
The law may restrict the volume of the picketing, or the size of the group, especially if there's a serious security threat that may stem from the presence of a large group, or if the group is likely to block pedestrian traffic. In some situations, the law may create a 36-foot buffer zone if there's a serious risk of picketers' blocking entrances, and narrower restrictions have proven unavailing. The law may also require that people not approach within a few feet of a particular person to talk to the person without the person's permission. And the Court has upheld restrictions on residential picketing, stressing the special role of the home as a place where people should be able to retreat from controversy. But as a general matter, people -- especially in small groups -- are free to express their views in front of places of commerce and entertainment, even when offended listeners might be present.
The Ninth Circuit, though, held last week (Berger v. City of Seattle) that it's constitutional to ban speech to strangers -- even speech by one person -- within 30 feet of "any captive audience," including "patrons waiting in line for events" or eating in a seating area. The particular rule involved restrictions in a park, but a city sidewalk is just as much a traditional public forum as a park.
So this means that picketing, demonstrating, and the like, on city sidewalks -- even when engaged in by one person -- can be forced 30 feet away from any movie theater line, any outdoor restaurant seating area. Likewise, I take it that such speech can be forced 30 feet away from any employee whose job requires him to stand near a sidewalk, for instance a hotel doorman, an employee working as a sidewalk vendor, a maintenance worker, and the like. Those employees are, after all, even more "captive" than diners or people standing in line.
What's more, the court read Madsen's authorization of a 36-foot buffer zone outside an abortion clinic entrance as being justified by "captive audience" concerns related to "women entering an abortion clinic." The Ninth Circuit thus seems to suggest that an audience may be "captive" even to speech that it only needs to see briefly. If that's so, then any picketing or demonstrating outside any business would be seen as involving a "captive audience" of business employees and vendor employees who have to come and go through the front door, and perhaps of customers, too.
This strikes me as a pretty clearly mistaken result. It might not have been intended by the judges in the Ninth Circuit panel majority, who were talking about restrictions in a park and not on a sidewalk -- but, as I mentioned, parks and sidewalks are both treated as the same sort of place by First Amendment law (a traditional public forum), and if a restriction is allowed in a park, it would presumably also be allowed on a sidewalk. (If anything, restrictions on sidewalks may often be more justifiable because pedestrian traffic problems tend to be more serious on sidewalks.)
Moreover, while the particular plaintiff in the Ninth Circuit case was a street performer who made balloons, apparently performed magic tricks, "talk[ed] to his audience about his personal beliefs, especially the importance of reading books," and seemingly accepted contributions, the panel's rationale wasn't limited to people like plaintiff (nor am I quite sure just how it could be so limited). The panel upheld the captive audience rule on its face, and treated it (in relevant part) as banning "speech activities 'within thirty (30) feet of any captive audience ....'" It did not limit its decision to rules banning speech activities that solicit (expressly or implicitly) the immediate handing over of money, or to rules banning balloonmaking and magic tricks but allowing political or social advocacy. The decision is thus a precedent for restrictions that cover many more people than "Magic Mike" Berger.
Finally, I should note again that the Court has indeed accepted some kinds of restrictions on picketing in public places, as I said in the second paragraph of this post. The Ninth Circuit's decision is thus not a completely radical new step. But it does go far beyond, I think, the narrow restrictions that have been upheld, and covers speech that poses no real security risk, no threat to individual privacy, no material threat of blocking entrances, and no inherent danger of people trespassing on others' personal space (this is a 30-foot exclusion zone, not a requirement that one stay 8 feet away from people whom one is approaching).
And to the extent that one does see this as a logical extension of past decisions, that should be a reminder that the slippery slope from narrow restrictions to much broader ones is a real risk in a legal system that's built on analogy and precedent. Even when the precedents by no means require a particular result, and even don't justify it in the minds of many, some decisionmakers (here, judges) may read them that the precedents may end up justify many more restrictions than the precedents' drafters contemplated.
Bergen Community College Drafts Student "Code of Responsibility":
The Bergen County Record quotes:
In the full knowledge of the commitment that I am freely willing to undertake as a student, I promise to respect each and every member of the college community without regard to race, creed, political ideology, lifestyle orientation, gender or social status sparing no effort to preserve the dignity of those I will come in contact with as a member of the college community. I promise to Bergen Community College that I will follow this code of responsibility.
1. Honesty, integrity and respect for all will guide my personal conduct.
2. I will embrace and celebrate differing perspectives intellectually.
3. I will build an inclusive community enriched by diversity.
4. I am willing to respect and assist those individuals who are less fortunate.
5. I promise my commitment to civic engagement and to serve the needs of the community to the best of my ability.
There was some talk last Thursday about the possibility that "the college, ultimately, may opt for an 'aspirational' statement as opposed to a code," but the statement from a college spokeswoman Wednesday had been, "The pledge would not be optional .... If you don't agree, it is President Ryan's vision that you cannot attend the school."
Some of this just can't be taken seriously: "I promise to respect each and every member of the college community without regard to ... creed [or] political ideology ... sparing no effort to preserve the dignity of those I will come in contact with"? You have to respect people whose religious "creed" is that the Earth is flat, or that blacks or whites are morally inferior? You have to respect people without regard to political ideology, "sparing no effort to preserve the dignity of" Nazis or Stalinists?
But even if you set that aside, students are entitled to be selfish, or to channel their altruism in ways other than "civic engagement [or] serv[ing] the needs of the community," or not to have any interest in working to build inclusive communities enriched by diversity. And they are entitled to get the benefit of an education at Bergen Community College even if they take such personal views, which should not be the subject of any loyalty oath. If the College wants to require them to study certain topics, or even engage in certain extracurricular activities, it may so require. But under the First Amendment, it can't demand a pledge that students not only do certain things, but do them with the right attitude.
Interestingly, all this is defended as an attempt to "balance First Amendment rights with a need to bring civility into an institution." But even beyond the unconstitutionality of this particular balance, note that much of the proposal isn't about "civility" -- it's about enforcing a particular ideology of "civic engagement," "serv[ing] the needs of the community," and "assist[ing] those ... who are less fortunate," and excluding students who don't share this ideology no matter how civil they might be.
Oral Argument in Virginia v. Moore:
This morning the Supreme Court held argument in Virginia v. Moore
, the Fourth Amendment case I have blogged about this past week. On the whole, the argument went extremely well for Virginia. In the first half hour, the Justices seemed to think Virginia's position was so obviously correct that they appeared rather bored. Several seemed to be asking questions just to fill up time. Scalia seemed a bit skeptical, and Justices Stevens and Ginsburg were doing their best to question the state, but all in all the first half hour went extremely well for the petitioners.
In the second half of the argument, Tom Goldstein argued for the respondents. Given that the Justices were pretty clearly against him on the main arguments of his brief, Goldstein wisely switched gears and focused more on the "search incident to a lawful arrest" argument under DiRe
, and Fillipo
. This went a bit better, although the historical framing of the argument drew some eyebrows from the more policy-oriented Justices who would be needed votes, such as Justice Breyer.
One problem for the respondents was that by framing the issue as a balancing test in which the state interest is measured by state law, the argument invited the Justices to look at whether they normally defer to state law to assess the strength of Fourth Amendment interests. The record there is mixed: sometimes they do, and sometimes they don't. You could list a dozen cases on one side of that argument, and another dozen on the other. But there are certainly instances in which the Court doesn't, and the Justices seemed to be grabbing on to those cases (like California v. Greenwood
and Cooper v. California
) and thinking that settled the matter. The benefit of the DiRe
line of cases is that they break out of the general interest balancing into a separate category with a clear historical and precedential lineage. But it was unclear if the Justices were willing to look closely at those cases and apply them here. Justice Kennedy stated that he read DiRe
as a case on the federal supervisory power; that's incorrect, as I have argued at length
One hypothetical I wish the Court had posed for the state (but did not) was whether their theory would allow arrests for civil offenses. Under Whren v. United States
, probable cause to believe a civil traffic offense has occurred justifies a stop of the car. In Whren
, Justice Scalia seemed oddly unconcerned that the traffic violation was not actually a crime; he seemed to treat "probable cause" as a freestanding notion with no particular reference to whether it was of a crime or not. So here's the question: under the state's theory of the case, after the police stop a driver for speeding, a civil violation, can they arrest the person and then search them incident to arrest for the civil offense? That is, does there even need to be a crime at all, if there is probable cause that a civil violation occurred? The question would have forced the state to either take a pretty frightening position that they can arrest when no crime occurs at all
or else to concede that the constitutionality of an arrest for a traffic offense is governed by a technical question of state law — specifically, whether that particular state categorized that particular traffic offense as a crime or a civil violation. Anyway, no one asked the question, but I would have been interested in the state's response to it.
UPDATE: The oral argument transcript is available here
Obama's Minister and Church:
I've been reading some recent blog posts, linked by Instapundit, about Barack Obama's church, the Trinity United Church of Christ in Chicago, an Afrocentric church that preaches what the New York Times calls Black liberation theology.
The senior pastor (and former pastor) of the church is one Jeremiah A. Wright. Rev. Wright, who, according to Obama, has had an incredibly profound influence on his life, has said many controversial things over the years, which a simple Google search will turn up. Browsing around I came across the fact that in November, the church's newsmagazine, The Trumpet, announced that it plans to "honor" Louis Farrakhan "this winter at its Sounds of the Shore gala with an Empowerment Award." Apparently, Rev. Wright himself heartily approves of Farrakhan.
"When Minister Farrakhan speaks, Black America listens," says the Rev. Dr. Jeremiah A. Wright, likening the Minister’s influence to the E. F. Hutton commercials of old. “Everybody may not agree with him, but they listen… His depth on analysis when it comes to the racial ills of this nation is astounding and eye opening. He brings a perspective that is helpful and honest. "Minister Farrakhan will be remembered as one of the 20th and 21st century giants of the African American religious experience," continues Wright. "His integrity and honesty have secured him a place in history as one of the nation’s most powerful critics. His love for Africa and African American people has made him an unforgettable force, a catalyst for change and a religious leader who is sincere about his faith and his purpose." (emphasis added)
I disagree with Barack Obama on almost everything, but I find him to be a likeable fellow and a very engaging speaker, and instinctively a more promising choice for president than his Democratic opponents (which, admittedly, isn't saying much). However, having harshly criticized Ron Paul for his dubious associations [even before the newsletter scandal], and even Giuliani for sucking up to Pat Robertson, I certainly don't think that Obama deserves a pass for his membership in a church that, among other dubious things, holds Louis Farrakhan to be a heroic role model, especially given Obama's campaign theme of being a "uniter." (Evidence that Obama has quietly worked for change on such issues within the church would be welcome.)
Unfortunately, my suspicion is that the MSM won't touch this story until Hillary operatives inevitably spread it before the Florida and Northeast primaries, at which time it will become, improperly, another "black-Jewish" issue, when it should be a "is Obama upholding the standards he claims to believe in?" issue.
Luban on Padilla v. Yoo:
Over at Balkinization, David Luban has an extensive post on the issues and non-issues in Padilla v. Yoo.
Amicus Briefs for Petitioner in D.C. v. Heller:
On Friday, 20 amicus briefs were filed in support of the District of Columbia government, in the case challenging the District's ban on handguns and on functional firearms. The briefs are here.
Most notably, the Solicitor General asked that the decision of the Circuit Court of Appeals for the District of Columbia be reversed and remanded. Details are in Jonathan Adler's post, below.
If not for the massive volunteer work of persons concerned about the Second Amendment, George W. Bush would not have won the very close elections of 2000 and 2004. To state the obvious, the citizen activists would never have spent all those hours volunteering for a candidate whose position on the constitutionality of a handgun ban was "Maybe."
The SG brief was one that might have been expected from the administration of President John Kerry. As a Senator, Kerry voted for a resolution affirming the individual Second Amendment right, and also voted for more repressive gun control at every opportunity.
The 2004 Bush victory over Kerry made a great difference in the US posture at the 2006 UN gun control conference, and in the signature of the Protection of Lawful Commerces in Arms Act. The election does not appear to have made a difference in the management of the Bureau of Alcohol, Tobacco, Firearms & Explosives, or of the Office of the Solicitor General.
In the Comments below, there will be some people who want to engage in a troll-driven debate over the gun issue in general, and others who will want to criticize or praise the Bush administration for the SG brief. However, I encourage readers instead to read one of more of the amicus briefs in toto, and to offer thoughtful comments on the brief. Further, if you find factual errors, misleading statements, or erroneous citations in one of the amicus briefs, please point them out, and, if possible, provide any additional citation supporting your claim; please confine such error correction to narrow points, rather than broad argument over the thesis of a brief.
Update: Interviewed by Glenn and Helen Reynolds this weekend, Rudy Giuliani declared that he supported the individual rights Second Amendment, "as interpretted by the Parker decision." The comment would seem to put him at odds with the position of the Bush administration, whose brief claims that Parker was wrong as a matter of law, and should be reversed and remanded.
Sunday, January 13, 2008
DoJ Supports D.C. and Individual Rights Interpretation:
As many VC readers may be aware already, the Solicitor General's office has filed a brief in D.C. v. Heller supporting an individual rights interpretation of the Second Amendment, but nonetheless calling for a remand in the case because the U.S. Court of Appeals for the D.C. Circuit applied too high a level of scrutiny in the case. Here's a taste of the brief's argument summary:
Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.
When, as here, a law directly limits the private possession of “Arms” in a way that has no grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff ’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and
(b) the strength of the government’s interest in enforcement of the relevant restriction. . . . Under that intermediate level of review, the “rigorousness” of the inquiry
depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions.
The court of appeals, by contrast, appears to have adopted a more categorical approach. The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including
machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review. Just as the Second Congress expressed judgments about what “Arms” were appropriate for certain members of the militia, Congress today retains discretion in regulating “Arms,” including those with military uses, in ways that further legitimate government interests. . . .
Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny. However, when a lower court has analyzed a constitutional question under a standard different from the one adopted by this Court, the Court’s customary practice is
to remand to permit further consideration (and any appropriate fact finding or legal determinations) by the lower courts in the first instance. . . .
Lyle Denniston's take on the brief is on SCOTUSBlog here. David Hardy expresses his disappointment here.
Related Posts (on one page):
- Amicus Briefs for Petitioner in D.C. v. Heller:
- DoJ Supports D.C. and Individual Rights Interpretation:
The Problem of "Externalities" Caused by Government Financing:
One of Michael Kinsley's criticisms of libertarianism is based on "externalities" caused by government financing. He argues that people should not be allowed to drive without wearing seatbelts because their risky behavior creates an "externality" - a cost that they don't bear themselves. The externality in question is the fact that government may end up financing their medical treatment.
These kinds of "government financing exernalities" are commonly used to justify government regulations that restrict individual freedom. Liberals use these arguments to justify such regulations as mandatory seat belt laws, smoking bans (because government may end up subsidizing smokers' medical treatment if they get lung cancer), and most recently restrictions on morgage terms (because the government may bail out people who end up defaulting). Conservatives have their own favorite government financing externality arguments. For example, many argue that we should restrict immigration because otherwise the immigrants might collect welfare benefits that are paid for by taxpayers. Obviously, the greater the role of government in financing a wide range of activities, the greater the number of potential government financing externalities. The expansion of government spending facilitates the expansion of government regulation intended to curb the negative effects of the spending.
Government financing externality arguments generate their appeal from the fact that they seem not to be paternalistic. We are willing to let you hurt yourself, advocates implicitly suggest, but we can't let your bad behavior hurt the taxpayers.
The libertarian solution to this problem is to eliminate the government financing that created the "externality" in the first place. If you are worried about taxpayers having to pay for smokers' medical expenses, then argue for the elimination of government subsidies for the treatment of illnesses caused by smoking. Ditto for injuries caused by not wearing a seatbelt. The 1996 welfare reform law already eliminated even legal immigrants' eligibility for most welfare state benefits. But if you think there are still problems in this area, then argue for further reductions. Most immigrants would be more than happy to accept a deal under which they are allowed to stay in the US legally only on condition that they forego welfare state benefits.
In some cases, eliminating the government financing externality by eliminating government financing may be impossible for political or technical reasons. In such situations, there really is a difficult tradeoff between individual freedom and taxpayer interests. However, if government financing externalities are your true reasons for favoring any given type of regulation, you should at least consider the possibility of getting rid of the externality without restricting freedom.
Related Posts (on one page):
- The Problem of "Externalities" Caused by Government Financing:
- Michael Kinsley on Libertarianism:
- Kinsley on Libertarianism:
Michael Kinsley on Libertarianism:
Washington Post columnist Michael Kinsley deserves credit for taking libertarianism seriously and trying to present a reasoned critique. It's often difficult to make a real effort to understand an ideology very different from one's own instead of just dismiss it.
However, the quality of his criticism is uneven. Here, I focus on two of the most important problems: Kinsley's use of public goods and externalities to attack libertarianism, and his rebuttal to the libertarian critique of paternalism.
I. Public Goods and Externalities.
The most important flaw in Kinsley's critique of libertarianism is that he implicitly assumes that libertarianism rests on claims that the market is virtually perfect in providing for our wants and needs. Thus, he thinks it's a sufficient refutation to point out that the market doesn't deal perfectly with public goods, externalities, and other problems:
So what is wrong with the libertarian case for extremely limited government? Economics 101 teaches some of the basic justifications for government interference in the economy. Some things, such as the cost of national defense, are "public goods." We can't each decide for ourselves how much defense we want. We have to decide that together. Then there are "externalities," which are costs (or, sometimes, benefits) that your decisions impose on me. Pollution is the classic example. Without government involvement of some sort to override our individual judgments, we will produce more pollution than most of us want.
In reality, the case for libertarianism is based on the flaws of government as well as the virtues of the market. To justify the modern activist state, it's not enough to show that the market has shortcomings; you must also prove that the government can A) solve those problems, and B) do so without introducing worse problems of its own. Libertarians contend that government is systematically inferior to the private sector despite the fact that latter has significant flaws. In my view, for example, there is good reason to believe that government is likely to fail more often than the market because the quality of government is greatly undermined by the widespread and rational ignorance of voters; by contrast, market participants have stronger incentives to become informed about the goods and services they purchase and are therefore less likely to make serious mistakes.
It's also unfortunate that Kinsley acts as if libertarians haven't given any thought to public goods and externalities (or have only done so in crackpot ways). In reality, there is a vast libertarian literature on both subjects, some by Nobel Prize-winning economists such as James Buchanan (who won in part because of his work on public goods) and R.H. Coase (who won it for his work showing that markets can effectively address many types of externalities).
Most libertarians (myself included) do concede that there are some public goods that can only be provided by the state. However, there is a lot of evidence suggesting that the market can provide a much wider range of public goods than traditionally assumed. For example, Elinor Ostrom has shown how a combination of property rights and social norms can conserve valuable resources and greatly reduce various environmental externalities. Robert Nelson has documented how private planned communities can provide a variety of local public goods traditionally viewed as the exclusive preserve of local government.
II. Libertarianism and Paternalism.
Kinsley tries to rebut the libertarian critique of paternalistic policies as follows:
Something similar goes on when the government forbids or requires people to do something for their own good. Why shouldn't people, at least adult people, have the right to decide for themselves? .....
The trouble here is that libertarians tend to analogize everything to a right to die. If you have the right to end your own life, you must have the right to do anything else you wish, short of that. If you're allowed to shoot yourself through the head, why aren't you allowed to drive without a seat belt?
The answer is that it's a bad analogy. When you drive without a seat belt, you are not motivated by a desire to die, or even a desire to take a small risk of dying. Why should your motive matter? Because your death — especially your death in a car crash — does impose externalities on others. I would pay good money not to have to see your bloody carcass lying beside the highway, or endure the traffic jam, or pay the emergency room costs. A serious right like the right to die may be worth the cost, while a right to be careless or irresponsible is not.
If Kinsley really accepts the idea that we have a right to die and that government shouldn't forbid you to "shoot yourself in the head," he has already gone a long way toward the libertarian position. I fail to see, however, why he concludes that people have a right to deliberately kill themselves but don't have a right to take a much smaller risk of death by not wearing a seatbelt. Yes, it's true that those who indulge in the latter activity are not motivated by the desire to die or take a risk of death. They may, however, be willing to take a small risk of death in order to achieve some other benefit, such as avoiding the discomfort of wearing a seatbelt. Similarly, many people eat large quantities of hamburgers and drink lots of beer even though they know very well that it's bad for their health and increases the risk of an early death. As I explained in greater detail here, a key flaw of paternalism is that it denies individuals the right to decide for themselves whether the benefits of taking a risk are worth the cost. The mere fact that an activity creates a risk to your health or even your life doesn't necessarily mean that only a "careless or irresponsible" person would do it.
As for Kinsley's laundry list of "externalities" of not wearing a seatbelt, some of them are not externalities at all and others are themselves caused by government intervention. Car accidents, for example, are not caused by not wearing seatbelts, though the latter does increase the danger that you will get hurt if you do get into an accident. The extra damage from not doing so, however, will fall almost entirely on the person who made the decision and is therefore not an externality. As for emergency room treatment, this "externality" is the result of government's decision to subsidize the treatment of injuries caused by motorists' decisions not to wear seatbelts. Eliminate the government intervention and this "externality" disappears.
UPDATE: It's strange that Kinsley thinks that "The Terry Shiavo [sic] case of 2005 was libertarianism's greatest moment so far." Libertarians played only a minor role in the Schiavo debate, which itself was a relatively minor event in American history. I could easily think of many far more important events on which libertarian ideas had a much greater influence. For example, deregulation and privatization policies first advocated by libertarian economists have been adopted in numerous nations around the world. Here in the US, ideas developed by libertarian thinkers have played a major role in the recent resurgence of interest in judicial and legislative protection of property rights.
Yglesias on Break Through:
Matthew Yglesias has a review of Break Through: From the Death of Environmentalism to the Politics of Possibility in today's NYT. Here's a taste:
Nordhaus and Shellenberger have worked in the environmental movement not as grand theorists but as public opinion researchers, and their work in this realm is enormously valuable. Polls often cited as evidence of broad support for environmental goals, they note, also show that support to be extremely shallow, making it difficult to persuade people to give up things they enjoy or need — cheap gasoline, jobs in industries like coal mining or logging — in order to advance environmental ends. In response, environmentalists tend to emphasize the dire consequences of inaction and, when that doesn’t work, to ratchet up the doomsday narratives that Nordhaus and Shellenberger justifiably compare to religious tales of sin and damnation.
“We know from extensive psychological research,” they write, “that presenting frightening disaster scenarios provokes fatalism, paralysis and ... individualistic thoughts of adaptation, not empowerment, hope, creativity and collective action.” Insecurity, they argue, is an emotional pillar of reactionary politics, not a building block for the sort of farsighted, progressive thinking that is required to prevent ecological disaster.
Instead of sticking with this crucial point, however, “Break Through” tries to use postmodern philosophy to transmute an insight about public opinion into one about public policy. The authors conflate conventional environmentalist rhetoric and conventional policy prescriptions (mandatory curbs on carbon emissions) to create a supposed “politics of limits” that must be transcended through a “politics of possibility.”
But whatever the shortcomings of their rhetoric, environmentalists have a very good reason to push for some limits, however much of a downer that message might be. Global warming is caused by carbon emissions and can be contained only by reducing them. Nordhaus and Shellenberger’s preferred alternative — huge investment in alternative energy — doesn’t really stand up to scrutiny. . . . even as a matter of crass politics, Nordhaus and Shellenberger neglect a basic point: the hard part about gaining support for a new initiative isn’t convincing people of its value but finding the money to pay for it. The conventional solutions to global warming posed by the “politics of limits” — taxing carbon emissions, or issuing tradeable emissions to carbon-producing firms — conveniently raises revenue that could be used to pay for the very projects the authors wish to see.
My own Break Through review is here, see also this post on the book.
Gomez v. Pueblo County:
So here's an unusual prisoner lawsuit
Inmate escapes from jail, is caught, and is returned to jail. Inmate then tries to escape from jail again and falls 40 feet while scaling down the wall of the jail, sustaining injuries. Legal claim (drafted by an attorney, not the inmate):
The people running the jail and the county are liable because their negligence caused the injury. They should have known the inmate would try to escape again and would injure himself, and they didn't exercise their duty of care to make sufficiently sure he couldn't escape.
There are other claims in the complaint alleging police brutality, and I don't mean to make light of those claims if true. But the negligence argument is just precious. Maybe the answer is for prisons to be designed without walls, so inmates won't hurt themselves falling from them during escapes? Or at least the prison could put up a bunch of signs saying, "CAUTION: Do Not Scale Down Prison Wall. Injuries May Result." Thanks to Howard
for the link.
Speaking of Fraudulent Arguments:
Daniel Davies at Crooked Timber: "In general, I just don't agree with Tyler [Cowen]'s implicit view that there's something illegitimate about making your case forcefully and not giving the kid gloves treatment to people who try to push weak, uninformed or fraudulent arguments against it."
In 2006, Davies falsely claimed in the Comments section on the Crooked Timber site that after they were originally published, I (or someone else) "substantially edited" "lots" of my posts regarding the Qana incident in the Israel-Hezbollah War to cover up how "laughable and disgusting" they were in their original form. I sent him two email messages letting him know that this accusation was false, that NONE of these posts had been edited as he stated, and asking him to retract it. When no response was forthcoming, I I noted the accusation and its falsity on this blog. I still received no public or private apology or retraction, or even acknowledgment of the error.
Please keep this in mind next time you read Davies expressing outrage at others' purported "weak, uninformed, or fraudulent arguments."
Yes, I am still offended that someone would publish a lie about me and then not retract it when called on it. Wouldn't you be?
The FTC Questions Carbon Credits:
Some firms and private individuals have sought to be "carbon neutral" by purchasing carbon dioxide emission credits to offset the effects of their own energy use. As I have noted before (in this series of posts), there are serious questions about the validity of such offset credits. Now the Federal Trade Commission is taking a look. The New York Times reports:
Corporations and shoppers in the United States spent more than $54 million last year on carbon offset credits toward tree planting, wind farms, solar plants and other projects to balance the emissions created by, say, using a laptop computer or flying on a jet.
But where exactly is that money going?
The Federal Trade Commission, which regulates advertising claims, raised the question Tuesday in its first hearing in a series on green marketing, this one focusing on carbon offsets. . . .
To supply and manage the carbon offsets, big consumer brands are turning to a growing number of little-known companies, like TerraPass, and nonprofits, like Carbonfund.org. These intermediaries also cater to corporations that want to become “carbon-neutral” by purchasing offsets for the carbon dioxide they release. . . .
The F.T.C. has not accused anyone of wrongdoing — neither the providers of carbon offsets nor the consumer brands that sell them. But environmentalists say — and the F.T.C.’s hearings suggest — that it is only a matter of time until the market faces greater scrutiny from the government or environmental organizations.
Kinsley on Libertarianism:
Whatever one thinks of the Ron Paul campaign, it has caused some to take a more serious look at libertarian policy ideas. This Michael Kinsley column, which is largely critical but respectful of libertarianism, is a good example.
Libertarians get patronized a lot. Chipmunky and earnest, always pursuing logical consistency down wacky paths, they pose no real threat to the established order. But the modest success of U.S. Rep. Ron Paul of Texas in the presidential campaign entitles them to some answers to the questions they raise. They say: People should be free to do whatever they want, as long as it doesn't hurt other people. If you agree, how do you justify (let's pick just two): 1) laws that forbid private behavior, such as recreational drugs; 2) government programs that redistribute one person's money to someone else?
The libertarian perspective is useful, and undervalued. Why does the government pay farmers not to grow food? Why are medications for fatal diseases sometimes held off the market in case they aren't safe? (Compared to death?) Legislators and regulators should ask themselves far more often than they do whether some government activity or other expands freedom or contracts it.
Furthermore, democracy and majority rule are no answers. Tyranny of the majority is a constant danger. How would you like a law requiring that people with odd Social Security numbers have to give $1,000 to people with even Social Security numbers? To libertarians, much of what the government does is essentially like that. . . .
Libertarians ask: By what justification does the government concern itself with inequality -- financial or otherwise -- in the first place? They are nearly alone in asking this question. Even conservatives claim a great concern for equality of opportunity, while opposing opportunity of result. And the reasons seem obvious: some degree of material equality as a necessary basis for political equality; the huge role of luck in getting each of us to our relative stations in life; etc.
But nothing like this is obvious to libertarians. They force us to think it all through from scratch. Good for them.
Controlling Your Temperature:
The California Energy Commission recently proposed including government-controlled thermostats in new energy efficiency standards for new buildings in the state.
Customers could not override the thermostats during "emergency events," according to the proposal, part of a 236-page revision to building standards. The document is scheduled to be considered by the California Energy Commission, a state agency, on Jan. 30.
The description does not provide any exception for health or safety concerns. It also does not define what are "emergency events."
During heat waves, customers crank up the air conditioning, putting severe strains on the state's power supply. By giving utilities the power to automatically adjust power demand by reducing air conditioning, the hope is that more severe interruptions, such as rolling blackouts, can be avoided.
The specific proposal can be found on pages 63-64 of this CEC document
As one might expect, the prospect that government officials could control home thermostats was quite controversial, and the California Energy Commission has backtracked . . . a little.
As initially proposed, these programmable thermostats would have deferred in emergencies to a radio signal from utilities, wresting control from customers.
After public protests, Chandler said the commission staff has suggested letting customers choose whether to accept the emergency control.
The staff will make the recommendation at the energy commission's Jan. 30 meeting in Sacramento. The changed proposal would be taken up at a later date.
"The consumer or customer can override the emergency control," with the change, Chandler said.
The radio system used by the utilities would notify customers of an energy emergency. If the customer did nothing, utilities could reset the thermostat to a higher temperature, but no higher than 88 degrees.
However, the thermostat will still include a radio control component that utilities could use with consumers' consent. That component will be a mandatory part of the thermostat, which can't be removed by the consumer.
Critics say they fear that requiring new homes to include a radio-controlled thermostat will make it easier to enforce mandatory controls later.
A more sensible way of disciplining household energy use would be through prices. In the marketplace, increased demand will produce higher prices. Adopting peak-load pricing or even surcharges would provide market signals to consumers and provide an incentive to reduce energy use during an "energy emergency," but it would leave consumers in control of their own energy use.
Sunday Song Lyric:
Singles, 45s and Under
seemed like something of a soundtrack in high school. Though I did not own the album until college, I seemed to hear it all the time, and almost everyone knew the songs, irrespective of their other musical tastes. Chris Difford and Glenn Tilbrook continued to make music together in and out of the band throughout the late 1980s and 1990s, with some success. Their sound evolved some, but Difford and Tilbrook kept much constant, including Difford's fun, intelligent, and engaging lyrics.
In picking a Squeeze lyric, it's tempting to stick to the 1982 compilation. Eric Muller of Is That Legal? suggests another Tilbrook-Difford composition: "Melody Motel" off of 1989's Frank. It's a sordid tale; "Sam Shepard meets Danny Baker," according to Difford. Here's how it begins:
He drove up to the motel
In his town and country car
He watched the working women
With the field hands from the farm
He walked into the lobby
With his pleased to see you smile
Scribbled on to the register
His fictitious name and smiled
The footsteps of a young girl
Came tapping along the hall
The outline of his features
Were shadowed on the wall
She stood a little nervous
Half lit by the neon light
That flashed in many colours
Through the darkness of the night
The full lyrics are on a Squeeze fansite here