Author Archive | David Bernstein

Anti-Semitism and the Religious Right:

An interesting email from a reader:

Concerning your post ‘Interesting findings from the American Jewish Committee survey…’, specifically the question which asks about anti-semitism in the religious right: I was raised in a fundamentalist Christian home. My father and grandfather were Southern Baptists ministers, my uncle an Assembly of God minister. I was a fervent believer immersed in that world until the age of about 20, and though at 50 I’ve drifted far from fundamentalist dogma, I’m still in contact with friends and family who remain firmly entrenched.
Those are my credentials for stating the following; THE RELIGIOUS RIGHT IS STAUNCHLY PRO-JEWISH AND PRO-ISRAEL.
American Bible-belt Christianity, like most religion, is exclusionary of disbelief and teaches that Judaism is an incomplete truth due to it’s rejection of Jesus as the Messiah. Jews, however, are recognized by them as the original chosen people of God and contemporary Israel is seen as the fulfillment of Biblical prophecy. As such, fundamentalists feel it is America’s obligation to give Israel all necessary aid and support. If fundies are hostile to Jews, how to explain the widespread support given Israel throughout the Bible-belt states? Those good old boys cheering Israel on at every turn spent their formative years in Sunday School.
The first time I encountered the accusatory “The Jews killed Jesus” was in the media, possibly a movie. Though I don’t doubt it has been used to justify horrible actions against Jews, it wasn’t, and isn’t, a fundamentalist accusation. Of course we knew that Jews called for Jesus’ death, but Jesus, his disciples, Paul, etc. were Jews. These were the Biblical heroes (with Jesus beyond hero status). It was the chief priests, pharisaic types, that were singled out as the particular culprits, and though they were Jews, the chief priests modern counterparts were, in

Continue Reading

Appearance at Berkeley:

Tomorrow, Tuesday, the 20th, I will be speaking about You Can’t Say That! at Boalt Hall Law School on the UC Berkeley campus at 12:45 p.m. Admission is free and open to the public, and VC readers are invited to come by and say hello (and get a free lunch!) [...]

Continue Reading


Too bad Bush decided to use his first judicial recess appointment to appoint Pickering. As I’ve discussed before, Pickering was among the worst of the Bush judicial nominees.

UPDATE: Readers have pointed me to this and this article defending Pickering, both of which I had previously read, and neither of which I find exonerates him from the criticisms in my original post. (1) It is still highly inappropriate for a judge to lobby the Justice Department regarding a case before him; (2) Choosing to do so on behalf of a cross-burner is an odd choice of folks to champion, even if his coconspirators did get much lighter sentences (such anomalies are not at all rare in our system unfortunately); and (3) This choice becomes even odder when the rationale given for going easy on the cross-burner is in part to avoid pissing off Mississippi’s white folks, a fact not mentioned in either of the two pieces above defending Pickering.

On the issue of Pickering pressuring attorneys who appear before him to lobby on behalf of his confirmation, several professorial colleagues pointed out to me that his behavior does not violate the judicial ethics rules. That can be the Bush Administration’s slogan for Pickering: “Doesn’t violate the letter of the ethics rules! Has the bare minimum of ethics to prevent professional responsibility professors from calling for his impeachment or resignation!”

Imagine if a Clinton nominee had, while a federal district judge, lobbied the Justice Department for a more lenient sentence for a convicted criminal in a case before that nominee. Many of the same folks who have defended Pickering would have been all over that nominee, and Clinton for nominating him. Sorry folks, I’m not going to overlook a nominee’s flaws just because he was nominated by a Republican president. [...]

Continue Reading

Constitutional Law Stories:

I just received in my mailbox a copy of Foundation Press’s Constitutional Law Stories, edited by Michael Dorf of Columbia Law School. The book provides in-depth background on fifteen leading constitutional cases; I wrote the chapter on Lochner vs. New York. The other chapters, which I read in draft form, are excellent. The book is being marketed, as far as I know, primarily to law school professors, but it would make an excellent text for undergrad Con Law or Constitutional History classes. It’s a worthy successor to Quarrels That Have Shaped the Constitution, a book last updated in 1987 and showing its age. And no, I’m not going to get any royalties from the book! [...]

Continue Reading


Based upon this report, it seems the federal government’s plans to dispose of (read: store for a really, really, really long time) nuclear waste in Yucca Mountain in Nevada may be in trouble. Yesterday’s oral argument in Nevada’s suit challenging the plan seems not to have gone well for the federal government’s attorneys. Specifically, judges seemed sympathetic to Nevada’s claim that the environmental safeguards did not comply with the relevant statutory requirements. For more background on the case, see here.
[Note: Post edited to correct minor error.] [...]

Continue Reading

The Civil Rights Cases:

I’m teaching the Civil Rights Cases (1883) tomorrow, which invalidated the Civil Right Act of 1875’s prohibition on discrimination by inns, public conveyances, and places of public amusement, as beyond Congress’s power under the 13th and 14th Amendments. In debates over Lochner and constitutional protection of economic liberty more generally, liberal scholars will sometimes refer to the Civil Rights Cases as an example of the evils of constitutional protection for economic liberty, arguing that the Court upheld economic liberty at the expense of civil rights. As I read the Cases, however, the majority’s opinion is solely based on federalism and has nothing to do with economic liberty or property rights. Indeed, the majority takes pains to note that all states require inns and common carriers to serve all comers, and that the plaintiffs in the cases involvig inns and common carriers (but perhaps not the case involving a theater) had remedies under state law. Just another example of how sloppy (see link for a further discussion) the debate over Lochner has been.
UPDATE: Tim Sandefur has an interesting response, arguing that the public-private distinction enforced in the Civil Rights Cases reflects the same sort of classical liberal view of state and society as Lochner. Perhaps, but the liberal scholars I’ve noted seemed to imply that the Civil Rights Cases themselves were decided based on a Lochner-like liberty of contract or property rights theory, which is simply false. And I think the ultimate schism in the Civil Rights Cases Court was over how much the Reconstruction Amendments changed the balance of federal-state power, especially vis-a-vis Congress’s power to aid African Americans, and not over generally differing views of state and society. Harlan was the lone dissenter in the Civil Rights Cases, and though he dissented in Lochner [...]

Continue Reading

Bernstein Critics:

Thanks to Eugene’s defense of me below, but it raises an interesting issue: there are a few folks out there who love to complain about my posts (you know who you are). Others have complained about other Conspirators. [Edit: And I don’t mean occasional disagreement or criticism, I mean, “So and so is ruining the Volokh Conspiracy.”] Yet, there is handy-dandy way to exclude any of us from your daily reading:[name of blogger], which regular readers are aware of. So why do the complainers continue to read my (or their) posts? I can only assume that I (or they) fall into the “love to hate” category, the way some conservatives just can’t wait to fisk Paul Krugman, or some liberals curse at Rush Limbaugh every day (halevai I should have their audiences!) Interesting phenomenon, that. [...]

Continue Reading

More on BK:

My previous post on Burger King’s “generous” offer to give customers a Whopper without a bun for the same price as a Whopper with a bun reminded me of an even better story about BK. In the days before the Veggie Whopper, at a time when I subscribed to Vegetarian Times, I recall that BK told vegetarian inquirers that a vegetarian Whopper was available–a Whopper with the normal bun, lettuce, tomato, pickle, and mayo, but without the burger patty. Burger King “generously” offered this vegetarian version of the Whopper for exactly the same price as a regular Whopper.
BTW, the best deal in vegetarian fast food is by far and away Taco Bell’s Bean Burrito[edit: I have yet to try the new “Cheesy Bean ‘n Rice Burrito]–order it without the cheese if you are vegan or are watching your weight, or just don’t like icky Taco Bell cheese. It’s only 79 cents and quite tasty (I have visions of Tyler, who is of course an expert on local ethnic dining, cringing as he reads this).
UPDATE: I’ve been reminded to mention the short-lived left-handed Whopper. And here is evidence that as of 2001, it was possible to get charged more for a Whopper meal sans meat than for a regular Whopper meal. [...]

Continue Reading

Information Requests:

Sometimes, when I ask readers for information about a given topic, I get reader emails beginning with “I’m sure many people have mentioned X …” Sometimes that’s true, in which case I will update my post to note that I now now about “X”. Often, however, the reader who sends this is the only reader who informed me about “X,” and “X” is very interesting So, don’t hesitate to respond to a query from me or another blogger; information that you think is obvious or well-known may not be. [...]

Continue Reading

Suicide Murder in Israel:

Two interesting things about today’s suicide murder in Israel. First, the bombing occurred at a checkpoint for Palestinian workers. While Israel is blamed for “immiserating” the Palestinians by cutting off their jobs, whenever Israel tries to let more Palestinians work, Hamas, Jihad, et al. intentionally target the checkpoints, to force Israel to crack down and ensure that Paletinians stay poor and miserable, and thus more likely to support terror! So much for Hamas being a “social welfare” organization, as France has argued. Second, the bomber would have been caught but for Israeli squeamishness about having male soldiers inspect a Muslim woman. Muslims demand respect for their sensibilities, but how often do they condemn their fellow Muslims when they abuse Western sensitivities to their concerrns to commit suicide murders? [...]

Continue Reading

Prescient Warnings about Civil Rights Legislation:

It is well-known that opponents of the 1964 Civil Rights Act warned that it would lead to racial preferences, and that these concerns were pooh-poohed by proponents. I am looking for other examples of warnings by opponents of the Act labled “extremist” or “hysterical” at the time that have been vindicated, whether in the ’64 Civil Rights Act itself or in subsequent legislation. I’m not looking for “States Rights” arguments, but arguments that, for example, the public accommodations provisions would eventually lead to the regulation of private clubs, that the list of groups covered by civil rights laws would eventually expand dramatically, etc. Is there a good book or article describing the arguments made against the Act? (I recognize that some of these arguments were insincere, as they were made by folks with a segregationist agenda, but that does not mean that they turned out not to be prescient).
A good example of what I’m looking for is Eugene’s now-famous post on how opponents of the ERA warned in the ’70s that it would eventually lead to court-imposed gay marriage. [...]

Continue Reading

The Other Middle Eastern Refugees:

Interesting piece in Ha’aretz. My girlfriend’s parents and their families were among the thousands o Jews forced to flee Iraq, leaving their (substantial) property behind, 50+ years ago. Her late mother left to her children the deed to the land her father bought for her in Baghdad when she was born. [...]

Continue Reading

Hold My Buns!

Drudge links to a report noting that bowing to the low-carb craze, Burger King will now offer bunless Whoppers, for the same price as Whoppers with buns. How is this different then in the past (1) ordering the Whopper, but stating, “no bread please”; or (2) ordering the Whopper, and throwing the bread away, feeding it to birds, etc.?

Next thing you know, automakers will “offer” cars without tires for the same price as cars with tires. New advertising slogan for Burger King: “Offering you less, for the same price!” [...]

Continue Reading