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Saturday, July 26, 2008
Attacks on Jewish and Black Conservatives:
Joe Klein's outburst about the "Jewish neocons" allegedly pulling John McCain's strings on behalf of Israel reminded me that I've been meaning to blog about the fact that liberals, including (and sometimes especially) Jewish liberals increasingly use the charge of "dual loyalty" to try to discredit, and thus silence, Jewish conservatives.
This is especially clear from Klein's piece, because unlike many writers, he actually shows an understanding of neoconservatism, which he describes, in roughly accurate terms, "as unilateral bellicosity cloaked in the utopian rhetoric of freedom and democracy." There is nothing uniquely "Jewish" about this ideology, and the neocons have applied to everything from the Salt II treaty to Grenada to Bosnia to Iraq, usually in circumstances that have nothing to do with Israel--as I have written, "if Israel suddenly was at complete peace with its neighbors and was no longer an issue of foreign policy concern, I would bet that all of the Jewish neoconservatives would remain neoconservatives, and continue to promote neoconservative views on foreign and domestic policy." And, as I've noted previously, Jews are not overrepresented among neoconservatives relative to their prominence as public intellectuals generally.
The purpose, then, of associating "neocons" with Jews, and neoconservatism exclusively or primarily with concern for Israel, is to delegitimize conservative Jews, just as conservative blacks are called "Uncle Toms" and whatnot. As the National Review media blog notes, "conservatives who aren't 'neo' in any appreciable way — say, Jonah Goldberg — are denounced as 'neocons' based mostly on their surnames."
One interesting aspect of all this is that the standard left-wing "Uncle Tom" attack on black conservatives accuses them of being insufficiently supportive of "their people," while the emerging attack on Jewish conservatives accuses them of being too supportive of "their people" and thus having dual loyalties. Hmm.
UPDATE: In reaction to a previous, more outlandish Klein screed, Shmuel Rosner of Ha'aretz pointed out quite aptly that liberal Jews also argue that the policies they support will help Israel. [And given that Israel is very popular with Americans in general, and American Jews in particular, it would be foolhardy to argue that a policy is good because it would hurt Israel; even the Chomskys and Finkelsteins of the world usually claim to have Israel's ultimate best interests at heart.] But, Rosner points out, it's only the conservative Jews, or at least the ones that are hawkish on foreign policy, including Israel-related foreign policy that get accused by the likes of Klein of dual loyalty:
Here's a little mind game with which to demonstrate my point. Imagine Klein, back in the late Nineties, writing this:
"The fact that a great many Jewish officials in the Clinton administration plumped for this Oslo process between Israel and the Palestinians, and now for an even more foolish summit at Camp David between Ehud Barak and Yassir Arafat, raised the question of divided loyalties: using U.S. diplomatic leverage and money, to make the world safe for Israel."
Can you imagine him writing such thing? Can you imagine him blaming the many-many Jewish members of the Clinton administration for tilting the American agenda toward the peace process only because they want to help Israel?
If you can - Klein is being honest. If you can't - Klein is just using religion to denounce people with whom he has policy differences.
Randy Pausch Dies:
If you missed it, Randy Pausch of The Last Lecture fame, has succumbed to pancreatic cancer. Here's the full lecture. I watched the whole thing when it first came around and it really is quite touching and powerful. The two stories from the Washington Post are here and here. Scott Johnson has more here. He really seems like an extraordinary man, father, and professor.
Social Policy Hindsight Thought Experiments:
In thinking about the empirical analysis of social policies, I've thought it sometimes useful to take the actual results of the policies and then look back and think whether the policy still would have been adopted had the architects of the policy known what the results would be. The answer might still be yes, but thinking about the costs and benefits through this lens helps to illuminate the trade-offs without the inherent biases that people seem to have in admitting that they were mistaken in the first place.
For instance, had the architects of Prohibition known the full costs and benefits that resulted from Prohibition, would they have still supported it? Perhaps yes, but surely the full range of unintended consequences of Prohibition were not fully seen at the time, and if they had been it is not obvious that they would have supported it (and of course they actually ended up repealing it). I recall seeing this same analysis of welfare policy prior to welfare reform in the 1990s: had the architects of the Great Society welfare programs known the unintended consequences that would flow from welfare reform, would they have still supported it?
Another one I wonder about is whether had the Federalists been able to anticipate the course of American constitutional history, would they have nonetheless opposed the inclusion of a Bill of Rights in the Constitution (Madison changed his mind, of course)? It is an interesting thought experiment to think about how American history would have been different had the Federalists prevailed and no Bill of Rights would have been added to the Constitution. One suspects, for instance, that the Supreme Court would have spent most of its time enforcing structural constitutional restrictions and enumerated powers rather than individual rights provisions. Whether that would have been better or worse is an interesting question--it certainly would have been different.
In this vein I offer a provocative essay by Mary Eberstadt on birth control and the sexual revolution. She writes about it through the lens of the Papal Encyclical Humanae Vitae, but I'm interested in it here as a non-religious sociological analysis. My guess is that most readers will conclude that the sexual revolution was a net positive for society. Certainly there were major social and widespread individual benefits from the sexual revolution and birth control technology, and one suspects that many of these social benefits were unforeseen at the time as well. Increased personal autonomy, freedom, and social and economic opportunities for women are certainly important benefits of access to birth control that most of us will easily recognize. Nonetheless, while most readers will conclude that the benefits overall outweighed the costs, Eberstadt frames the issue in a way that certainly caused me to think more deeply about the full costs and benefits of these social developments:
Let’s begin by meditating upon what might be called the first of the secular ironies now evident: Humanae Vitae’s specific predictions about what the world would look like if artificial contraception became widespread. The encyclical warned of four resulting trends: a general lowering of moral standards throughout society; a rise in infidelity; a lessening of respect for women by men; and the coercive use of reproductive technologies by governments.
In the years since Humanae Vitae’s appearance, numerous distinguished Catholic thinkers have argued, using a variety of evidence, that each of these predictions has been borne out by the social facts.
Speculation on the causes of such broad social trends is difficult, of course. Nonetheless, much of the rest of the article is concerned with laying out the empirical case that each of these four developments have actually come about. And reading the list of predicted effects (even before considering the empirical evidence Eberstadt marshals) it seems accurate to me that these are unintended consequences that have in fact come about as side-effects of access to artificial birth control. As Eberstadt stresses, most of this sociological evidence has been developed by secular scholars.
In the end, Eberstadt can be criticized for failing to fully account for the benefits of the sexual revolution, so it is not clear that Humanae Vitae has been "vindicated" (of course, this is a short magazine piece and most readers will easily be able to recognize the benefits of these developments to weigh them in the balance). Nonetheless, I thought it a fresh way of thinking about one of the major social developments of the Twentieth Century as it causes us to think about some of the costs associated with developments that are generally thought to be socially beneficial.
Is Hayek Still Relevant?
Jesse Larner has an interesting and much talked-about article on F.A. Hayek in the left-liberal journal Dissent (for links to other commentary on Larner's piece, see here). Larner gives Hayek credit for his pathbreaking critique of socialist central planning. But he argues that Hayek's thought is largely irrelevant today.
To very briefly summarize Hayek's two most important ideas, he argued that socialism can't work as an effective system for producing and distributing goods because it has no way of aggregating the necessary information about people's wants and needs. By contrast, the price system of the market is a very effective method for collecting and using information about people's preferences and the relative value of different goods. Hayek's 1945 article "The Use of Knowledge in Society" is the best short statement of this argument. Hayek also argued that government control of the economy under socialism necessarily leads to the destruction of democracy and personal freedom. The central planners' control of the economy enables them to crush potential opposition and strangle civil society. This, of course, was the main argument of Hayek's most famous book, The Road to Serfdom (1944).
Larner concedes the validity of both of these Hayekian claims. But he suggests that they are largely irrelevant today because the modern left has mostly abandoned central planning and because Hayek failed to recognize that "collectivism" could be a "spontaneous, nongovernmental, egalitarian phenomenon," not just a totalitarian order imposed by the state. He also suggests that "Hayek doesn’t seem to grasp that human beings can exist both as individuals and as members of a society, without necessarily subordinating them to the needs of an imposed social plan (although he acknowledges that the state can legitimately serve social needs, he contradictorily views collective benefits as incompatible with individual freedom)."
Larner makes some defensible points. For example, he is right to imply that Hayek's arguments are more compelling as a critique of full-blown central planning than of more modest forms of government intervention. It is also true that full-blown economic central planning has a lot less support among left-wing intellectuals today than fifty or sixty years ago. Nonetheless, Hayek's ideas are far more relevant to our time than Larner thinks.
I. The Persistence of Central Planning in Left-Wing Thought.
Although the modern mainstream left no longer favors central planning of the entire economy, many left-wingers do favor government control of large parts of the economic system. Most European leftists and a good many American ones favor government control of the health care industry, which constitutes some 10-15% of the economy in advanced industrialized society. Some forms of government planning are favored not only by left-wingers but also by many moderates and conservatives. For example, government owns and operates some 90% of the schools in Western Europe and the United States. However much we take public education for granted, it still represents the socialization of a vast swathe of the economy.
In addition, many mainstream liberals such as Cass Sunstein and Supreme Court Justice Stephen Breyer (as well as some conservatives and moderates) favor giving broad regulatory authority to "expert" government bureaucrats. This is not quite the same thing as government ownership of large enterprises. But it has important ideological affinities with it, to the extent that both policies rely on central planning by expert government bureaucrats. Hayek's arguments in "The Use of Knowledge in Society" are certainly relevant as potential critiques of these various forms of planning - both those that involve government ownership of large enterprises in health care and education and those that rely on regulations administered by expert bureaucrats. If Hayek is right, all these planners and experts don't know as much as they think they do, and certainly can't aggregate knowledge as effectively as the free market can.
Finally, it's worth noting that even full-blown socialism isn't as completely dead as Larner assumes. For details, see my September 2007 post on "Why the Debate Over Socialism Isn't Over."
Fundamentally, most liberals and leftists still look to the state to plan large portions of the economy and other aspects of our lives. So too do many conservatives and moderates, as witness the rise of "big government conservatism" under George W. Bush. Today's advocates of government planning are more modest in their ambitions than the mid-twentieth century socialists whom Hayek criticized. But they are not modest enough to make his arguments irrelevant.
II. Hayek and "Voluntary" Collectivism.
Larner also criticizes Hayek for ignoring the possibility that "collectivism" could be voluntary rather than imposed by the state. He suggests that Hayek was wrong to ignore the thought of socialist anarchists such as Proudhon and Kropotkin, who favored communal enterprise without state control.
Much depends on what is meant here by "collectivism." To the extent that it simply means voluntary cooperation between individuals and groups in civil society, Hayek not only didn't ignore it, he was a great advocate of it. Throughout nearly all his major works, Hayek stressed the importance of voluntary social cooperation and repeatedly emphasized that individuals can't progress or even survive for long without civil society institutions and traditions that are the product of cooperation. Hayek's famous theory of "spontaneous order" was of course based on the idea that society progresses through the development of social norms and customs produced by voluntary cooperation in civil society. Hayek favored free markets and strict limits on government power in large part because he thought that they fostered such voluntary cooperation better than government planning does. Far from denying that "human beings can exist both as individuals and as members of a society, without necessarily subordinating them to the needs of an imposed social plan," Hayek wrote that:
[T]rue individualism affirms the value of the family and all the common efforts of the small community and group . . . [and] believes in local autonomy and voluntary associations . . [I]ndeed, its case rest largely on the contention that much for which the coercive action of the state is usually invoked can be done better by voluntary collaboration.
Hayek, "Individualism: True and False," in Individualism and Economic Order (1948), pg. 23
Larner is right to point out that Hayek ignored the socialist anarchists in his writings on socialism. But he would not have objected to them in so far as they advocated the formation of purely voluntary communities based on socialist or egalitarian principles, such as the Israeli kibbutzim. Indeed, Hayek, like John Stuart Mill, emphasized the importance of social experimentation in voluntary civil society. In his essay "Why I am not a Conservative," Hayek criticized conservatives for their excessive suspicion of change and new ideas. Few other libertarians would disagree.
Conflict between Hayekian libertarians and advocates of voluntary collectivism arises when one asks what we should do if it turns out that most people don't want to live in a collectivist commune, but would prefer a "capitalist" lifestyle instead. This is exactly what happened in the case of Israel's kibbutzim, the most successful modern experiment in voluntary collectivism. If voluntary collectivists are willing to accept this result, then there is no major disagreement between them and most libertarians, Hayek included. If, however, they prefer to use state or private violence to force dissenters into the communes against their will, then this form of socialism is no longer voluntary. Unfortunately, real-world socialist anarchists often chose the path of violence when faced with this contradiction between their commitment to collectivism and their opposition to state coercion. This is exactly what happened when socialist anarchists achieved a high degree of influence in 1930s Spain, arguably the movement's greatest period of success.
Perhaps more importantly, advocates of socialist anarchism and other forms of voluntary collectivism have never been more than a minor part of the political left as a whole. The vast majority of left-wing intellectuals (to say nothing of left-wing political leaders) favor a high degree of government control of the economy and society. If they have even heard of voluntary collectivism, they don't have much sympathy for it. Indeed, they probably have a lot less sympathy for it than Hayek would have.
I don't claim that Hayek was right about everything or that he perfectly foresaw our situation today. To the contrary, he made his share of mistakes. But his most important arguments haven't lost their relevance.
Friday, July 25, 2008
There's Lots of Oil Up There:
A new report from the U.S. Geological Survey concludes that there are substantial untapped oil and gas reserves in the Arctic, perhaps amounting to as much as one-fifth of global supply. As the NYT reports:
Oil companies have long suspected that the Arctic contained substantial energy resources, and have been spending billions recently to get their hands on tracts for exploration. As melting ice caps have opened up prospects that were once considered too harsh to explore, a race has begun among Arctic nations, including the United States, Russia, and Canada, for control of these resources.
The geological agency’s survey largely vindicates the rising interest. It suggests that most of the yet-to-be found resources are not under the North Pole but much closer to shore, in regions that are not subject to territorial dispute. . . .
The assessment, which took four years, found that the Arctic may hold as much as 90 billion barrels of undiscovered oil reserves, and 1,670 trillion cubic feet of natural gas. This would amount to 13 percent of the world’s total undiscovered oil and about 30 percent of the undiscovered natural gas.
K Street Blues:
The infamous "K Street Project" was really nothing new in Washington D.C. I witnessed this sort of thing firsthand before the GOP took over Congress -- and it hasn't gone away. As Kimberly Strassel reports, the new majority throws its weight around on K Street just like the old majority.
Meanwhile, there's hope that two ethically challenged practitioners of politics-as-usual -- Alaska's Rep. Don Young and Senator Ted Stevens -- are in trouble.
Ninth Circuit Dismisses California Waiver Suit:
Today the U.S. Court of Appeals for the Ninth Circuit dismissed California's challenge to the Environmental Protection Agency's denial of California's request for a waiver of preemption of the state's greenhouse gas emission vehicle emission controls. In a brief order, the Court explained that the letter from EPA Administrator Stephen Johnson to California Governor Arnold Schwarzenegger informing him of the waiver denial was not, itself, a reviewable final action subject to judicial review. This does not end the litigation over California's waiver request, however. Rather the battle shifts to the U.S. Court of Appeals for the D.C. Circuit, where California may press its challenge to the EPA's Federal Register notice formally denying the waiver request. This is a defeat for California nonetheless, as the state surmised (with some reason) that the Ninth Circuit would provide a friendlier forum for the Golden State's claim.
Related Posts (on one page): - Ninth Circuit Dismisses California Waiver Suit:
- Jurisdictional Jousting in California Waiver Suit:
UCLA Law Review Second Amendment Symposium:
I'm glad to say that, in the wake of the Heller decision, the UCLA Law Review will be putting on a symposium on the Second Amendment and related matters. The symposium will be Friday, January 23, 2009, and the articles will be published in the law review a few months later.
Our tentative participants are Phil Cook, Saul Cornell, Bob Cottrol, Dennis Henigan, Don Kates, Gary Kleck, David Konig, Sandy Levinson, Jens Ludwig, Nelson Lund, Joyce Malcolm, Mark Tushnet, Adam Winkler, me, and I hope a few others. Should be an interesting, balanced, and productive event, and a great conference volume.
(This was originally posted this morning, but I've reposted it because comments were for some reason not working on the original post.)
The New Housing Bill May be Much More Expensive Than it Looks.--
In the Wall Street Journal editorial on the new housing bill is this ominous paragraph:
Likewise, the bill's $300 billion to refinance and insure distressed loans through the Federal Housing Administration will supposedly cost just a few billion dollars. That assumes few homeowners and lenders will sign up for the program because lenders will have to take a 10% haircut to be eligible. If no one needs this program, why is it there? If lenders do take advantage, they're bound to dump their worst loans on the feds. So as with the Fan and Fred bailout, the FHA guarantee will be either superfluous or much more expensive than we're led to believe.
From this account, I can’t tell exactly what the bill provides. Perhaps a knowledgeable VC reader can decipher the exceedingly complex statute.
Could this bill really allow banks to get the FHA to guarantee all its worst loans at 90% of their original value, even loans worth only a half or a third of their original value? Then if the homeowner defaults, the bank gets paid and the homeowner still loses his or her home. I doubt that the bill could be that silly.
$300 billion is a lot of money, representing over a quarter of all US income tax receipts in 2005.
Ave Maria and The ABA:
I haven't followed the Ave Maria Law School situation that closely. But I know it is of general interest to readers, so I pass along without commentary this article by R. Emmett Tyrell on the ABA's recent review of Ave Maria.
New Zealand Judge Orders Name Change for Girl:
The New Zealand Herald reports,
A Family Court judge said a New Plymouth couple burdened their child with a "social disability and handicap" when they named her "Talula Does The Hula From Hawaii".
Judge Rob Murfitt ordered temporary court custody for the 9-year-old to ensure that a proper name was found for her.
The girl said she was so embarrassed that she had not revealed her name to any of her friends.
"She fears being mocked and teased, and in that she has a greater level of insight than either of her parents," said Judge Murfitt.
I assume that "temporary court custody" means temporary legal authority over the child, and not temporary physical custody (since such a change in physical custody would be unnecessary and pointlessly harmful and expensive).
New Zealand's Child Youth and Family service reports that, in its view, "the name a parent chooses for a child does not constitute a care and protection issue in itself," though "if a child suffers serious bullying as a result of his or her name, this may lead on to possible notifications through the youth justice system." On the other hand, it turns out that while "Number 16 Bus Shelter, Violence[,] and Benson and Hedges (twins)" have been accepted, "other names, including Fish and Chips, Yeah Detroit, Stallion, Twisty Poi, Keenan Got Lucy and Sex Fruit, have been blocked by registration officials."
Legislation on the Internal Affairs website says names must adhere to the following criteria;
* Must not cause offence to a reasonable person
* Must not be unreasonably long (less than 100 characters long including spaces)
* Must not be without adequate justification, be, include or resemble and official title or rank
* Does not use punctuation marks, brackets or numbers
Internet Book Self-Publishing Service Not Liable for Defamation in the Books:
So holds Sandler v. Calcagni, a federal district court decision from last week; the court applied Maine law, but in a way that's likely to be echoed in other cases.
Historically, book publishers have been held liable for defamation in the materials they publish, generally on the theory that they know or at least should know of the defamation. But the court in Sandler held that these sorts of Internet self-publishing services are not liable, because they don't review the manuscript but just print it, and they therefore don't know or have reason to know of the possibly defamatory content within the book. The court also applies a similar analysis to the plaintiffs' disclosure of private facts and false light invasion of privacy claims.
Sounds like a sensible and not very surprising application of general negligence principles, but because such decisions about what's "reasonable" are often pretty mushy and hard to predict as a matter of principles, I thought this particular decision -- which I expect will become a fairly influential precedent -- was worth noting.
What Is the Exchange Rate for Terrorist/Innocent Exchanges?
Amos Guiora and Martha Minow have this interesting post raising the provocative question of what is the proper exchange rate when a country like Israel negotiates with terrorists. They make this telling observation:
What parent wouldn't want the government to do anything—and everything--to recover a missing soldier-daughter or son? If a parent is in the drivers' seat, no price is too high, no measure to risky if there is a chance of recovering the child alive, and even recovering the remains of the cherished family member. Moreover, combat soldiers in recent days have expressed their support the exchange, and noted it is important for them to know that should they fall into captivity the state will do anything to release them.
But what is the obligation of the state when it sends soldier to combat? Does the state owe that individual “everything” should something happen? What are the limits of state obligation? What does “everything” mean? Turn over 1,000 members of Hamas for Gilad Shalit? Or East Jerusalem?
Perhaps the logical conclusion from Guiora and Minow's provocative question is that no negotiations should ever be undertaken with terrorist organizations.
Steve Bainbridge on Batman:
Steve Bainbridge responds to my post on Batman here, linking to an earlier post of his claiming that Batman actually causes more harm than good because he damages property during his car chase in the first movie and violates corporate law by diverting corporate assets to serve his own personal agenda. The first point is easily dispensed with. Yes, Batman did destroy a lot of property during the final car chase in Batman Begins. However, given that the car chase was necessary to save the entire city from being destroyed by the League of Shadows and most of the inhabitants from being killed in the process, I'd say that the tradeoff was worth it. Perhaps Bruce Wayne should compensate those who lost property in the chase (and maybe in the time that passed between the two movies he did). But even if he failed to do this, the good he accomplished in this scene surely outweighed the harm.
The corporate law point is more interesting. I'm no expert on corporate law, but I'll assume that Bainbridge (who is an expert) is right to conclude that Wayne violated those laws. However, I don't think this aspect of the plot is integral to the message of the movie. Indeed, I'm not even sure that the filmmakers intend for the audience to regard Wayne's actions as illegal. If, as Bainbridge suggests, Wayne violated the rights of minority shareholders, one would expect some of them to sue. And if large amounts of corporate assets were being diverted to unproductive personal projects of Wayne's, one would expect shares of Wayne Industries stock to precipitously decline in value as potential shareholders recognize that buying Wayne stock is a money-losing proposition.
Yet in the second movie, Wayne Enterprises seems to be as successful as ever. Indeed, as I suggested in the original post, diverting some corporate funds to crimefighting might well be in the interests of the stockholders because Gotham City's high crime rate discourages investment and thereby reduces of the value of Wayne Industries stock. As for Bainbridge's claim that Wayne violated antitakeover laws when he regained control of the corporation at the end of Batman Begins, this - if correct - would be consistent with the libertarian theme I identify. After all, most libertarians view antitakover laws as unjustified government restraints on the market. Wayne's takeover of Wayne Industries might well have made the firm more profitable by removing less capable incumbent managers. There may be similar libertarian objections to at least some of the other corporate laws that Bainbridge accuses Wayne of violating. Perhaps the movie can be interpreted as a critique of government's role in the corporate world as well as its role in traditional law enforcement.
In any event, Wayne's corporate lawbreaking is hardly a central focus of the movie. By contrast, the skepticism about government and (relative) optimism about private initiative that I stress in my post really are key themes in both movies, especially the second.
Ultimately, criticizing Batman for violating corporate law is a bit like criticizing the coach in Hoosiers for using basketball strategies that wouldn't work in the real world. The criticism is technically correct, but misses the point of the story.
Thursday, July 24, 2008
The Libertarian Law and Economics of Batman:
I recently saw the new Batman movie, which is quite good. Overall, I have a much more favorable view of the Batman mythos than of the rival Superman series. Unlike Superman, who often seems to waste his immense powers on relatively minor villains, Batman/Bruce Wayne pays attention to the importance of opportunity costs. For example, he goes after the bigwigs of Gotham organized crime, not the smalltime petty thieves. He consistently attacks the most powerful villains he can realistically take on with the resources available to him.
The Batman story is also an interesting quasi-libertarian commentary on the shortcomings of government. Like the Mafia portrayed in The Godfather, the necessity for Batman's sometimes dubious methods arises because of the government's failure to protect people and their property against predation. This point is effectively emphasized in both The Dark Knight and Batman Begins. In that respect, Batman is similar to The Godfather in conveying skepticism about government, its motives, and its ability to effectively fulfill even the core "minimal state" function of protecting the public against violent crime.
In two important respects, Batman's message is actually more libertarian than that of The Godfather. While the latter portrays private protection firms (such as the Mafia) as being basically similar to government in their predatory nature, Batman's crimefighting activities are depicted as being both more noble and more effective than those of the generally incompetent and corrupt Gotham authorities.
In addition, Mario Puzo was extremely skeptical about the ethics and motives of "legitimate" businessmen, whom he portrayed as being little different from the Mafiosi. By contrast, Bruce Wayne is a billionaire businessman and his control of Wayne Enterprises is viewed as essential to his crimefighting activities. At times, the Batman movies even hint at the possibility that big businessmen actually have a self-interested incentive to help provide the public good of reducing violent crime. After all, they stand to lose a lot of profit if high crime rates reduce investment and drive away their customers and skilled workers. Precisely because of the vast size of his firm, Wayne has less incentive to free ride on the crime-fighting efforts of others in providing the public good of crime control. He will capture enough of the benefits of crime-fighting to justifying investing in it, even if he has to pay a very high proportion of the costs himself.
SPOILER ALERT (Proceed below at your own risk, if you haven't seen the movie yet):
The conclusion of The Dark Knight has an additional libertarian twist: Throughout the movie, Batman hopes to be able to give up his vigilante activities once Gotham's government is sufficiently reformed. The end of the movie, however, shows that this hope is misplaced, and that the city government's flaws can't be fixed merely by replacing corrupt and incompetent officials with more idealistic ones. As a result, the city will continue to need Batman.
I don't claim that Batman is consistently libertarian, or that the creators of the movie and comic books deliberately intended to convey a libertarian message. But the most recent movies and perhaps some previous Batman stories do have some interesting libertarian themes.
UPDATE: In fairness, as Steve Teles points out in an e-mail, Batman himself may not have completely lost faith in government at the end of the movie. That may be why he continues to believe that Harvey Dent's image as a popular hero should be preserved (though the preservation of Dent's heroic stature may simply be needed to prevent people from losing hope, not necessarily because maintaining it will improve the performance of government). But whether Batman himself fully internalizes the lesson or not, the movie certainly conveys a strong sense that government's flaws can't be corrected merely by choosing competent and idealistic leaders. After all, it's hard to imagine a public official more competent and idealistic than Dent himself was in the first half of the movie. Yet he fails.
Related Posts (on one page): - Steve Bainbridge on Batman:
- The Libertarian Law and Economics of Batman:
Secession, Ignorance, and Stupidity:
A recent Zogby/Middlebury Institute poll shows that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic." Belief in states' and regions right to secede was especially common among blacks (40%), Hispanics (43%) and people aged 18-24 (40%). Interestingly, political liberals (32%) were more likely to believe in a right to secession than conservatives (17%). 18% of respondents say they would support a secession movement in their own state, including 24% of southerners.
Constitutional law professor Ann Althouse claims that these poll results show that "all these people [who believe in a right to secession] have the law wrong and don't seem to know the basics of the history of the Civil War." She concludes that the pro-secession survey respondents are "fascinatingly stupid."
I certainly agree with Ann that much of the public is shockingly ignorant about American history and constitutional law. This is one aspect of the more general widespread political ignorance that I have often written about on this blog and elsewhere (e.g. here and here). At the same time, I don't think that ignorance is necessarily a sign of stupidity.
I. Secession and the Constitution.
More importantly, I don't think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn't explicitly guarantee states a right to secede, but also doesn't explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is "perpetual" (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. In light of this history and the ambiguity of the constitutional text, I don't think that belief in a right to secession is at all unreasonable, much less a sign of obvious ignorance or stupidity.
II. Secession and the Civil War.
Many people, of course, believe that the issue of secession was definitively resolved by the Civil War; Ann may be alluding to this when she writes that the survey respondents she criticizes "don't seem to know the basics of the history of the Civil War." There is no question that the federal government defeated the south's attempt to secede. However, superior military might doesn't prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.
To avoid confusion, I should emphasize that I think that the federal government was right to suppress the Confederates' efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners' constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.
During the Civil War, even some defenders of the Union admitted that secession might be justified in some instances. For instance, in his First Inaugural Address, Abraham Lincoln stated his view that the Union is "perpetual," but also that "If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one." Lincoln (correctly) denied that any such thing had happened in the case of the South in 1861, but left open the possibility that secession might be permissible in a situation where the federal government really had deprived a minority of a " vital" constitutional right.
Secession can be used to advance evil ends, such as the protection of slavery. But it can also be used to pursue good ones. After all, the United States was established by means of secession from the British Empire. More recently, the secession of the Baltic States from the Soviet Union, and the secession of Slovakia from Czechoslovakia have caused far more good than harm.
In sum, the text of the Constitution is ambiguous about secession, and nothing in our later history definitively forecloses the possibility that secession might be permissible in some situations. The Zogby poll respondents might be ignorant in so far as they may believe that the federal government will allow states to secede at will. But they are not necessarily ignorant or stupid to believe that states have a right do so - irrespective of whether the federal government is likely to honor that right. Even as a matter of practical political reality, the federal government's reaction to a serious modern secession movement is likely to be dictated more by the immediate circumstances than by the long-ago precedent of the Civil War. Without knowing the background of the future dispute in question, it's hard to predict whether the feds would use force to prevent secession or not.
UPDATE: In addition to criticism from people who think that any form of secession is unthinkable, I also expect criticism from those who claim that the South seceded for more admirable reasons than the protection of slavery. Unfortunately for these people, Confederate leaders at the time clearly stated that slavery was the cause of secession. For example, in his famous 1861 "Cornerstone Speech," Confederate Vice President Alexander Stephens emphasized that "slavery as it exists amongst us—the proper status of the negro in our form of civilization . . . was the immediate cause of the late rupture and present revolution." He also avowed that the enslavement of blacks was the "cornerstone" of the new Confederate government and constitution. For most pro-slavery southerners, states' rights were merely a tool for protecting slavery. When slavery could more effectively be promoted through federal power, they were perfectly willing to jettison their states' rights principles, as in the case of their trampling on state prerogratives for the purpose of enforcing the Fugitive Slave Act (as I briefly discussed here).
Our Litigious Society, in 1884 Montreal:
Thanks to Sasha for the translation, from Lebeau v. Turcot, 7 Legal News 259 (1884) (emphasis added):
Whereas the plaintiff demands of the defendant damages in the amount of $199, by reason of the injury that he alleges was done to him last December 23 by the defendant, who, in charge of taking the collection in the church of the parish of St. Laurent, intentionally and maliciously [allegedly] passed the plaintiff's pew without soliciting the donation of the latter, present at the time, and did so with the goal of insulting and mortifying said plaintiff, and after having told several people ahead of time that he would act in this way with respect to him, in the goal of humiliating him;
Whereas the defendant pleads: 1st That he was fulfilling in the circumstance a voluntary and gratuitous function and, as a result, was not held to address himself to the plaintiff for the said collection, and that as a consequence, the latter has no recourse against him; 2nd That if he thus passed the plaintiff this was only by inattention and without malice; but that the plaintiff who, around last November, dismissed the defendant from his service, without plausible motive, and who was sued by him, has retained against the defendant a resentment and a bad will which have driven him on several occasions to turn his back to the said defendant, when the latter presented himself at his pew for the collection; and that this bad will of the plaintiff is the sole motivation of his current demand;
Considering that the plaintiff has proved the allegations of his demand, and notably that it was with a deliberate aim and with the intention to offend and humiliate the plaintiff that the defendant passed his pew in the abovementioned occasion; that he had even boasted in advance of what he was going to do and that he called the attention of several people to it, at the very moment of the collection, and that after the service he laughed about it and [triumphantly celebrated] with several persons;
Considering that although the defendant fulfills in this circumstance a gratuitous and voluntary service, he is held to acquit himself of it with an equal politeness to all parishioners and cannot, by voluntary omissions, single some out to the mockery of others;
Considering, however, that though the conduct of the defendant, in the abovementioned circumstance, was reprehensible and that he could not escape unpunished, the proven facts justify however only a light condemnation;
Rejects the exceptions and defenses of the defendant and condemns him to pay to the plaintiff, by way of damages, the sum of [$5], and the expenses of an action of this class, costs, etc.
Interesting Case Involving Evidence of Defendant's and Witness's Being Muslims:
Here's an excerpt from last week's State v. Rankin (N.C. App.) (some paragraph breaks added): [D]efendant argues that the trial court erred by allowing the State to present evidence identifying defendant and a witness as Muslim. This argument is without merit.
The State presented recordings of certain phone calls made by defendant to Chantay Brown, a woman with whom he had been involved in the past. Brown's initial testimony provided defendant with an alibi for the time of the murder; however, she later retracted that statement and testified that defendant asked her via calls and letters to provide him with an alibi for the time of the crime.
Defendant argues that this unfairly prejudiced the jury against him, as the jury could well have anti-Muslim beliefs, and that any probative value of the evidence was outweighed by its prejudicial effect. This argument is based on Rule 403 of the North Carolina Rules of Evidence ...[:] “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” [This is a common provision, and tracks the Federal Rules of Evidence. -EV]
Whether to exclude evidence pursuant to Rule 403 is a matter left to the sound discretion of the trial court. A ruling by the trial court will be reversed for an abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision....
[R]elevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evidence that a defendant attempted to procure a false alibi from a witness is certainly relevant. The question, then, is whether the prejudicial effect of this information outweighed its relevance.
Defendant simply states that the jury probably had an anti-Islamic bias. Aside from the fact that a Bible was in the jury room, however, defendant presents no evidence to support this statement. Further, Brown testified that, per her religious beliefs, when defendant asked her to provide an alibi for him, she felt obligated to do so, which is why she initially testified that he had been with her at the time of the murder.
When the State asked her during voir dire whether her religious beliefs and the fact that defendant was of the same faith affected the way she reacted to defendant's request, she testified: “You're supposed to help them, assist them, if you can. You're supposed to help him. That's why I did agree to help him.” After listening to Brown's testimony and recordings of the phone calls between her and defendant out of the jury's presence, the trial court concluded that “defendant was using his religion as a mechanism to try to get this witness to testify in his behalf, and actually commit perjury; that it is relevant for that purpose, and it is not being offeredas a means to showing credibility[.]”
The court then went through the calls again and told the State which portions of each call could be played for the jury, a process which eliminated significant portions of each call that the court considered “just discussions of faith and nothing to do with the trying to influence her.”
Given the care with which the trial court handled this evidence, and given the fact that defendant cannot show that, without this evidence, a different result would likely have been reached, this assignment of error is overruled.
Killing of Sexual Partners as Mere Manslaughter:
When can killing a sexual partner or a former sexual partner qualify as mere "voluntary manslaughter" rather than murder under American law? Some of the comments to my honor killing post led me to want to elaborate further on this.
1. Most states — though not the several states that have adopted the Model Penal Code "extreme mental or emotional disturbance" formulation — specify that this sort of killing is voluntary manslaughter only if it's in the "heat of passion." But while some states limit this to situations where the killer has just immediately caught the victim (either the killer's sexual partner or the person with whom the partner is cheating) in the act, other states take (or recently have taken) a different view.
No need to witness adulterous act: Thus, for instance, Commonwealth v. Schnopps, 417 N.E.2d 1213 (Mass. 1981), holds that a spouse's killing of a spouse can be voluntary manslaughter when it immediately follows the victim's oral admission of adultery. Anderson v. State, 507 So. 2d 580 (Ala. Ct. Crim. App. 1987), overruled by Knight v. State, 907 So. 2d 470 (Ala. Ct. Crim. App. 2005), held that a spouse's killing of a spouse can be voluntary manslaughter when the killer "visualized [the wife] standing nude at the foot of [another man]'s bed" — based on the wife's refusing to accompany him home after a family visit to the other man's mobile home — and then went home, got his shotgun, drove to a store to buy shotgun shells, and later went back to the other man's home and shot the wife and the other man.
Time delay between confession of adultery and killing: Likewise, People v. Berry, 556 P. 2d 777 (Cal. 1975), concluded that a delay of 20 hours between the confession of adultery (and a desire to leave the marriage) and the killing didn't preclude a finding of manslaughter, at least when the victim had engaged in "a long course of provocatory conduct."
2. As best I can tell, most states don't limit the defense to adultery, but also allow it when the killer and the victim aren't married. Goforth v. State, 523 S.E.2d (Ga. 1999). This may be sensible, but I mention it to rebut the suggestion that the breaking of a marriage vow is somehow uniquely serious and thus specially justifies the doctrine.
3. Most troubling of all, there are quite a few cases in which a voluntary manslaughter theory was found legally warranted simply because a sexual partner had left the relationship, without any evidence of cheating. See, e.g., State v. Little, 462 A.2d 117 (N.H. 1983); People v. Guevara, 521 N.Y.S.2d 292 (App. Div. 1987). Fortunately, many states would not allow the theory in such cases, but some do.
4. Some commenters suggested that honor killings are especially culpable because they are "celebrated" by the community, in a way that manslaughters aren't. That would be reason to condemn the community that celebrates such killings; but I saw no evidence of such celebration in the Georgia story I cited to. And while I don't know of a tradition of celebrating a man's killing his unfaithful wife or girlfriend, my sense is that there are unfortunately some subcultures in the U.S. where such a killing would be at least to some extent condoned, even though not celebrated.
5. To my knowledge, the voluntary manslaughter theory has not been applied in the U.S. to parents killing their children because of their children's misconduct, though as I mentioned the "extreme mental or emotional distress" formulation of voluntary manslaughter might apply even to such situations. But the premise of the doctrine as to spouses killing their cheating spouses (usually the husband cheating the wife) is that the spouse has fallen victim to the heat of passion. It's factually quite possible that some fathers can fall into such a passion when they hear of a daughter's misconduct that they see as staining their family honor.
This having been said, I'm very happy that in our culture this sort of pathology (killing someone, spouse or otherwise, because of the person's infidelity, including, I suspect, because the infidelity is seen as a stain on one's honor) is limited to sexual partners, chiefly husbands and boyfriends. I'm glad that it doesn't extend to the unfaithful person's father, and I'd like to keep it that way.
Nonetheless, I'm not sure that there's some vast gulf between a jealous passion — again, a jealous passion that might be based in part on a man's sense that the wife has dishonored him (by "cheating") — and a father's passion stemming from his sense of family honor. It would make sense for our law to limit the scope of the manslaughter theory to cover the traditionally recognized jealousy (and perhaps to cover only a narrow subset of such cases), and to exclude the father's reaction. But I don't think we can see the outraged father's actions as uniquely barbaric, while the outraged husband's actions are unfortunate and criminal but radically different. Both, unfortunately, reflect a longstanding tradition of vast and heinous overreaction to perceived sexual impropriety, especially by women, a tradition that is present in some ways in our country as well as in Muslim countries. Related Posts (on one page): - Killing of Sexual Partners as Mere Manslaughter:
- "Honor" Killings, Muslim and Otherwise:
Service Nation States that It Does Not Support Mandatory National Service:
I recently had a conversation with Tim Zimmerman, a spokesman for Service Nation, in which he emphasized that he and the organization he represents do not support mandatory national service. Co-blogger Jim Lindgren and I had previously interpreted their position as supporting such an agenda because many of the organization's leaders have previously expressed support for mandatory service and because the organization's list of 13 objectives includes "Launch[ing] a debate about why and how America should become a nation of universal national service by 2020." As Jim pointed out in one of his posts, it is impossible to have national service that is both universal and voluntary because under a voluntary system at least some people will choose not to serve, thus rendering the system non-universal.
However, Zimmerman suggests that this passage (which has since been removed from Service Nation's website) was merely intended to indicate the group's support for the idea that service opportunities should be universally available to those who want to serve. He agreed that Point 13 was poorly worded and thought that Service Nation should use different terminology in the future. He also points to this recently added statement on Service Nation's website (which was apparently added as a result of Jim's post):
Does Service Nation support mandatory national service?
No. We support the idea of voluntary community and national service. We are working to both inspire more Americans to volunteer their time and to encourage our leaders to create service opportunities for every American who wants to serve their community and country. We do not support mandatory national service requirements.
Obviously, definitions of what counts as "voluntary" may vary. Some national service advocates seem to believe that a system is "voluntary" so long as participants can choose what kind of government-mandated service they are required to perform (while being denied the option of refusing to serve altogether). Zimmerman assured me that this is not Service Nation's view.
As a general rule, I think we should assume that people are telling the truth about their agenda unless there is clear proof to the contrary (as there isn't here). So I think I should accept Zimmerman's and Service Nation's assurances on this point, as there is no clear proof that they are in bad faith.
At the same time, I continue to be troubled by some of the statements made by Service Nation leader Alan Khazei, who has argued that "every nation in the world [should] ha[ve] a year of full-time service as a rite of passage for all young people growing up," and that we should have "universal national service." There is no way that "a year of full-time service" can be a rite of passage for all young people unless it is mandatory. Khazei has also said that a year of national service should be a requirement for admission to college, though it is not clear whether he means that government should mandate this requirement or whether he merely hopes that universities will adopt it voluntarily. Khazei's views don't necessarily represent those of Service Nation as a whole, and I am willing to accept that the organization doesn't endorse all of his positions.
I also worry that the enactment of a massive government program for even genuinely voluntary service (which Service Nation does seem to favor) might eventually transition into a mandatory system even if that wasn't the original intention. Like Jim, I continue to oppose Service Nation's proposal to enormously expand government-sponsored service programs, eventually enrolling up to 1 million people every year (more than ten times as many as currently).
Excellent article on Hofstader's Social Darwinism in American Thought:
Tim Leonard of Princeton has posted a very interesting and important paper on Hofstader's influential book, and what he calls the "myth of Social Darwinism". Leonard points out, among other things, that the association of Herbert Spencer and William Graham Sumner with "Social Darwinism" is almost entirely a product of Hofstader's work, and that Hofstader merely used "Social Darwinism" as an epithet to discredit (libertarian) views he opposed. More generally, Hofstader's book "gave impetus to the novel assocation of Social Darwinism not only with laissez-faire," but with racism and imperialism. "Never mind that the set of Gilded Age and Progresive Era writers who endorsed laissez-faire, racism, imperialism and eugenics is essentially empty.... [Sumner, in fact, was a leading opponent of the Spanish-American War] 'social Darwinism' functions as a synecdoche for all that an early-1940s New Deal liberal (and many cince) would regard as retrograde and reactionary."
Responding to Some of Your Comments
on Leaving the House. In my previous post, I suggested some reasons why we might want the House to amend its rules so as to require resignations to be accepted before they are effective. For my last post, I want to reply to some of your comments. I apologize in advance that I won't have the time to reply to all of the interesting comments I received.
First, "non-native speaker" wrote
I can't see why the constitutional provision about filling vacancies caused by resignation necessarily means that senators had a *right* to resign. It could well mean that, as in the 1770 New Jersey case mentioned in your previous post, resignation requires the acceptance or approval of the legislature to be effective; and in that case, when the resignation is approved, the constitutional provisions about filling vacancies apply.
Additionally, the 27th amendment does no longer mention "resignation" as a cause for vacancy: "When vacancies happen in the representation of any State in the Senate...". Does this mean that "right" to resign was repealed by the amendment?
As for the first part of that question, I take the Madison-Morris colloquy to show that "resignation" is used to mean a right to resign. Otherwise, that colloquy would imply that there is no way for a member to leave the House, even with the House's consent. While the text will bear that construction, the history, I think, will not. It had never been the case in any legislature that I am aware of that a Member could not leave with his house's consent. (Indeed, I take it to be the case that, although the Chiltern Hundreds are invariably used in Britain today, an MP could still be allowed to resign by vote of the House of Commons.) It would also run contrary to the wide power given each house over its own practices and procedures. Given that, I would expect to see some debate if the words were understood to mean that a Representative could not quit his seat, even with the House's consent.
As for "non-native speaker"s second question, I take him to be referring to the Seventeenth Amendment, not the Twenty-Seventh. As for whether the Seventeenth Amendment removes a Senator's right to resign, that would be a question of the meaning of that Amendment when it was promulgated. I haven't done the historical research, so I can't offer a definitive answer, but my suspicion is that, by 1913, it was sufficiently (if, in my view, mistakenly) ingrained in legislators' consciousness that neither house could prevent a legislator's resignation, that the omission of resignation was not meant to carry any meaning.
Professor Muller asked:
Can a person be President and a Senator at the same time?
If not, would McCain or Obama have to resign his Senate seat in order to take the Oath of Office as President?
If so, does your article imply that the Senate should have to approve of such a resignation before it became effective?
If so, does your article imply that a Democratic-controlled Senate could block Senator McCain from assuming the duties of the Presidency by withholding permission for him to resign the Senate? (Or that a Republican-controlled Senate could do the same to Senator Obama?)
Just wondering.
I would note, first, that Seth Tillman has a very interesting draft on SSRN arguing that, in fact, a person can be President and a Senator simultaneously. I remain somewhat skeptical about Seth's claim for structural reasons, but I commend the article to you. I note also that McCain and Obama are both Senators, and I have argued that the Constitution does give Senators a right to resign. However, even if one of them were a Member of the House, acceptance of an incompatible office (assuming, for present purposes, the presidency to be such) would vacate his House seat, because acceptance of an incompatible office vacates a House seat by itself. That is, incompatibility is a means of creating a vacancy wholly separate from resignation. Just as a member judged by his house not to have been duly elected or not to meet the requisite qualifications loses his seat without resigning it, so too a member who accepts an incompatible office does. It is, in this sense, no different than accepting the Chiltern Hundreds, which does not actually constitute a resignation, but rather vacates the seat by operation of incompatibility provisions.
Several people asked if this would be a Thirteenth Amendment violation, a question with special resonance given Jim and Ilya's ongoing discussion of mandatory service requirements. (On the issue of the meaning of "involuntary servitude," I would recommend Nathan Oman's forthcoming article.) I discuss the Thirteenth Amendment briefly in my article (pages 53-54), but the short answer is that I do not think that requiring a member to serve out a two-year commitment which he voluntarily undertook and for which he is handsomely compensated constitutes involuntary servitude. Again, I think the analogy to service in a volunteer military is useful.
Finally, several commenters were dismissive of what might be called the norm-reinforcing functions of requiring resignations to be accepted, essentially saying that, if members aren't being kept in the House involuntarily, then my proposal wouldn't result in any change. I have a more robust conception of political mores than that. I think that, if you spend decades telling people that legislators are just self-interested rent-seekers, then we're not surprised when they turn out to be nothing more than self-interested rent-seekers, and people like William Jefferson get reelected. But when institutional practices are aimed at inculcating the norm that our legislators should be public spirited, that subtly helps to change the political culture to the point where we actually expect legislators to behave that way. To me, that is a tangible benefit.
Well, that's it for me. Thank you so much to Eugene and all of the Conspirators have having me here. And thank you even more to all of you for reading and commenting on my article. I've had a blast discussing it with you!
I'll just add one more time that, if you've found that you're interested in historical discussion of Anglo-American constitutional rules regarding legislative procedure, my book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, is chock full of 'em! The book discusses issues like the judging of disputed elections, legislative contempt powers, bribery, the speech or debate privilege, etc. And it's still 20% off at Amazon!
Okay, thus ends the busking (didn't I promise in an earlier post I wouldn't do any more of that? hmmmm, can't remember ...), and with it, my posting here at the VC. Now, I'm off for ten days in Yellowstone and the Grand Tetons, far away from any computers. But I will certainly check any comments when I get back, so feel free to leave them.
Obama at the Wall:
As regular readers know, I'm not the biggest Obama fan, but I am enjoying thinking about how pictures like this one are playing in "white nationalist" circles.
Oh, and kudos to the member of the Obama advance team who supplied him with a nice-looking kippah, instead of the typical cardboard or black "funeral" ones visitors typically get.
UPDATE: McCain also had a nice kippah for his visit to the wall. Bush, however, had a dorky one, looks like a kids' size.
Wednesday, July 23, 2008
Constitutional Right to Access to DNA Evidence for Purposes of Clemency Petition,
recognized by McKithen v. Brown, a decision this Monday from Judge John Gleeson of the federal trial court for the Eastern District of New York. It's a long opinion, but here's the bottom line:
The Petition Clause ... secures a right of meaningful access to whatever avenues remain [after normal appeals have been exhausted, avenues that include a clemency petition -EV], and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of the trial.
Seems like an important result, if it's ultimately upheld on appeal. The national media and the blogosophere -- including legal blogs -- seemingly haven't picked it up yet, though my searches found a short article on the subject in today's Daily News (New York).
McCain's Time Magazine Essay on Patriotism Touches on Service.--
John McCain on Patriotism in Time Magazine (tip to Adler):
Patriotism means more than holding your hand over your heart during the national anthem. It means more than walking into a voting booth every two or four years and pulling a lever. Patriotism is a love and a duty, a love of country expressed in good citizenship.
Patriotism and the citizenship it requires should motivate the conduct of public officials, but it also thrives in the communal spaces where government is absent, anywhere Americans come together to govern their lives and their communities —- in families, churches, synagogues, museums, symphonies, the Little League, the Boy Scouts, the Girl Scouts, the Salvation Army or the VFW. They are the habits and institutions that preserve democracy. They are the ways, small and large, we come together as one country, indivisible, with freedom and justice for all. They are the responsible exercise of freedom and are indispensable to the proper functioning of a democracy. Patriotism is countless acts of love, kindness and courage that have no witness or heraldry and are especially commendable because they are unrecorded.
The patriot must not just accept, but in his or her own way protect the ideals that gave birth to our country: to stand against injustice and for the rights of all and not just one's own interests. The patriot honors the duties, the loyalties, the inspirations and the habits of mind that bind us together as Americans. . . .
And those of us who live in this time, who are the beneficiaries of their sacrifice, must do our smaller and less dangerous part to protect what they gave everything to defend, lest we lose our own love of liberty.
Love of country is another way of saying love of your fellow countrymen — a truth I learned a long time ago in a country very different from ours. Patriotism is another way of saying service to a cause greater than self-interest.
If you find faults with our country, make it a better one. If you are disappointed with the mistakes of government, join its ranks and work to correct them. I hope more Americans would consider enlisting in our armed forces. I hope more would consider running for public office or working in federal, state and local governments. But there are many public causes where your service can make our country a stronger, better one than we inherited.
McCain Campaign “studying options for national service.”--
Just over a week ago, Ben Adler reported that John McCain had not yet come up with a national service plan:
John McCain, who’s predicated his presidential run in no small part on his distinguished military record, frequently exhorts Americans — and especially young Americans — to serve their country. Despite that appeal, he has yet to offer any proposals to expand or transform national service outside of the military. . . .
Although McCain joined most congressional Republicans in 1993 to oppose the creation of the Americorps program when President Bill Clinton proposed it, he later became a prominent supporter. He teamed with Sen. Evan Bayh (D-Ind.) in 2001 to introduce legislation to expand service programs, and again worked with Bayh and other Democrats to convince President Bush not to cut funding for the program in 2003.
"John McCain has constantly spoken to the need for young Americans to serve a cause greater than their self-interest," said McCain spokesman Joseph Pounder. "McCain's campaign is all about a cause greater than yourself," echoed Jessica Colon, chairwoman of the Young Republican National Federation.
But the McCain campaign will not commit to releasing a plan for expanding service opportunities. A senior policy adviser said only that they are "studying options for national service." When asked why he does not have a service proposal, Pounder would only say that McCain is proud of his past support for service programs and has exhorted audiences to serve in this campaign.
The leading Democratic candidates all released service plans last year, and Mike Huckabee frequently articulated a general intention to increase national service opportunities.
Others running in the Republican primary, including McCain, said little about service programs, which some members of the Republican base consider unnecessary spending that interferes with more effective private sector efforts.
When Time magazine last month asked both candidates to contribute an essay on patriotism, McCain wrote on the obligations of the citizen and gave pride of place to “the communal spaces where government is absent, anywhere Americans come together to govern their lives and their communities — in families, churches, synagogues, museums, symphonies, the Little League, the Boy Scouts, the Girl Scouts, the Salvation Army or the VFW. They are the habits and institutions that preserve democracy.” While he later brought up military service, he made no mention of Americorps or any other national civilian service program.
Although Adler never criticizes McCain for not having a grand national service program like Obama's, reading between the lines of the article I suspect that Adler thinks that McCain ought to have one. Certainly, McCain needs to have a position, though the one McCain expressed in Time Magazine might just be the right one for him.
"Honor" Killings, Muslim and Otherwise:
A friend of mine passed along this New York Post column about a Pakistani immigrant's strangling his daughter -- in Georgia, outside Atlanta -- because she cheated on her husband and "wanted to end her arranged marriage."
The crime, which the Atlanta Journal-Constitution reports on, is awful; and this murderous practice should be condemned more broadly, as should fellow community members and police who turn a blind eye to this sort of behavior, or to similar "honor" violence that falls short of killing.
But at the same time, I'm not sure that I'd cite this as an example of the barbarism or menace of Islam, as I've seen some do. It probably is connected in some measure to Muslim attitudes towards women and towards sexual behavior. But unfortunately very similar practices are common in many cultures, including our own.
To begin with, it remains the law in America (and I suspect many other Western countries) that if a spouse -- who will usually be the husband -- kills the other spouse shortly after discovering the spouse's adultery, the killing may be classified as a manslaughter rather than a murder. Manslaughter is generally treated as a far less severe crime, with far lower penalties.
It's true that the killing has to be done in the "heat of passion," and the ostensible theory is that the crime is in some measure more understandable and more forgivable because of its emotional basis, not that the crime is justified as a matter of honor. Still, my sense is that much of people's sympathy with the killers has to do with the fact that they were dishonored, and not just distressed or angered for reasons unrelated to their sense of their own honor. And in any event, regardless of the rationale, the law does make killing of an errant spouse into something less than murder -- not the same as the killing of a daughter for her dishonoring the family name, but not very far from that, either.
What's more, until the 1970s, this very same state of Georgia sometimes allowed spouses to kill their spouses when necessary to stop or prevent an act of adultery with no criminal consequences at all -- such killings were considered entirely justifiable, and not just mitigated from murder to manslaughter. See Scroggs v. State, 93 S.E.2d 583 (Ga. App. 1956). Even in the 1975 case that rejected this rule, one judge praised the rule and would have retained it. From 1915 to 1925, Texas courts took the same view, though apparently limited to husbands killing their wives. See Cook v. State, 180 S.W. 254 (Tex. Crim. App. 1915).
And until the 1970s, Georgia, Texas, and two other states expressly allowed husbands to kill their wives' lovers. (Some of the states extended this privilege to wives as well, and some didn't have a "heat of passion" requirement.) One of the cases elaborating on such a statute, State v. Greenlee, 269 P. 331 (N.M. 1928), specifically argued that the law "recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor." Plus it is generally believed that juries have often acquitted the killers in such situations -- including fathers who killed their daughters' lovers, precisely on "honor" grounds -- even independently of the law. To quote another Georgia case (from 1911, quoting an earlier case from 1860), "What American jury has ever convicted a man for slaying the seducer of his wife or daughter?" That has likely changed in considerable measure since 1911, but my guess is that it remained largely true at least until recent decades.
And that's just the legal system's toleration (partial or complete) of such killings. As a matter of practice, many murders and even more assaults in America each year stem from adultery, perceived adultery, or even just a desire for a divorce.
Naturally, none of this remotely justifies the Pakistani father's killing of his daughter (though under some of the broader manslaughter statutes, such as the "extreme emotional disturbance" statutes that track the Model Penal Code, it's possible that his act would be mitigated to manslaughter).
But it does suggest that we shouldn't treat this sort of "honor" killing as somehow especially telling of some unique regressiveness on the part of Muslim or Pakistani culture; unfortunately, this isn't that different from the regressiveness of some American subcultures, and of the law in some parts of America until a few decades ago. And while we should react with outrage at this honor killing, we should likewise react with outrage at the much more typical (for America) killings of non-Muslim wives and girlfriends -- and husbands and boyfriends -- who seek to leave a relationship, or who have even committed adultery.
The Natural Right of Self-Defense: Heller's Lesson to the World
The Syracuse Law Review is putting together a symposium issue on the Heller decision. My article for the symposium examines the implications of Heller's constitutionalization of the natural law right of self-defense.
The article has benefitted from the VC discussion of self-defense in Heller by Orin Kerr, Eugene Volokh, and Jim Lindgren. Due to the symposium's desire for short articles, I was not able to explore all the interesting issues raised by the discussion.
Jim had suggested that the topic would make a good subject for student Notes, and I certainly agree. My Article doesn't come close to exhausting the topic. For example, in the course of research, I found the 1874 treatise "Select American Cases on the Law of Self-Defence." (Available on Google Books.) There is a vast amount of material therein that is worth exploring. Moreover, my string cite (note 15) on American cases describing self-defense as a "natural right" does not even include cases using the term "inherent right" instead.
BTW, I did not steal the title from Jim's suggestion. I already had it in my draft, as a sequel to my BYU J. Pub. L. article "The Human Right of Self-Defense."
In footnote 15, you will find a 1832 Kentucky case which I did find thanks to Jim. As you'll see, I still haven't solved the mystery of how the Kentucky court attributed to Matthew Hale a quote which actually appears to come from Michael Foster. I'll send a free copy of the forthcoming book Supreme Court Gun Cases, vol. 2, to the first person who can provide a definitive solution.
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