Author Archive | David Bernstein

Crowdsourcing a Question on Democrats and Constitutional Issues

For a project I’m working on, I’m collecting examples of statements made by high-level Democratic officials (especially, but not exclusively, Barack Obama) before January 2009 that such and such is unconstitutional (e.g., using military force without congressional approval, use of executive signing statements) that those Democrats either flipped-flopped on publicly (in the case of the president, this could be by his actions rather than words) or have been silent on since 2009. Citations, please. You could list these in the comments or send examples to dbernste at gmu dot edu.

And note, I totally understand and accept that Republicans do the same thing when the White House flips their way. Feel free to note such examples in the comments, though they don’t happen to be useful to my project. […]

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George Mason Law School Freezes Tuition

Here’s the press release:

Visitors Freeze George Mason Law Tuition

Fairfax, VA – December 11, 2013: The Board of Visitors of George Mason University voted today at its quarterly meeting to freeze the tuition of the law school for the upcoming year, for current and incoming students, and it declared its intention not to increase law tuition through 2016-17.

The Dean of the law school, Dan Polsby, stated, “One thing we understand is law and economics. Law school tuition went up more than fifty percent in the past seven years. This isn’t a business plan that can be sustained. The Board’s move recognizes that demand for legal education is changing, and that we must change with it. Our applicants can now apply to a top-tier law school with confidence that they will be able to manage the cost of their education.”

George Mason remains the least expensive top-tier law school in the dynamic Washington, D.C., legal market. With this move, Mason reaffirms its commitment to providing the highest value legal education at a reasonable price.

The Board’s tuition freeze is consistent with Mason’s commitment to affordability. Last year, seventy-three percent of Mason’s first-year law students received scholarships toward reducing their tuition.

Dean Polsby noted that “students choose Mason for three reasons: location, quality of education, and price. The location and quality they could always count on. Now they’ll be able to count on price as well.

[DB adds: GMUSL has traditionally been the “low-price, high-value” alternative in the DC legal market, and this and other moves signal a commitment by key players to preserve the law school’s identity as such.] […]

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BDS Opponent Claire Potter Suffers Social Media Harassment for Her Views

then changes her mind on the American Studies Association boycott resolution, perhaps for other reasons. But the entire situation is worth reviewing, given that BDS supporters are constantly claiming that pro-Israel forces are the ones doing the harassing, vilification, etc. Via Legal Insurrection, here are a couple of quotes from Potter about the reaction to her initial pro-academic freedom (but hardly pro-Israel) stand against the ASA resolution: “There were massive numbers of people, including a lot of people I know, just writing these nasty things on my blog about what a horrible person I was,” and “You may have received something on Facebook today, as well as on Twitter, floating the accusation that my opposition to the academic boycott of Israel being considered by the National Council of #2013ASA is a sham. This opposition is, the messages claims, only an excuse for me to continue an unhealthy and longstanding obsession with a prominent member of the American Studies Association.”

Keep this in mind next time your hear someone bloviating about how “brave” one has to be to be hostile to Israel in the American academy, and how pressure from pro-Israel forces makes an open debate impossible. Remember, the harassment of Potter came even though she essentially agreed with the BDSers on substance, but only disagreed with the tactic of boycotting academics. […]

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Taranto on a Kangaroo Court at Auburn University

If you missed this great column by James Taranto in the Wall Street Journal, here’s your chance to read it.

I had my own run-in with university kangaroo justice, fortunately much less serious than what Taranto describes. Just before I was going to graduate college, a friend with whom I had a falling out chose to escalate a minor personal dispute (involving, trust me, nothing remotely approaching illegal conduct) into a complaint with the university judicial process. I was told that no lawyer could be present, that there were no precedents that could be relied upon, and that my fate rested in the hands of the random students who sat on the judicial committee.

I pointed out to the associate dean in charge that the rules allowed him to dismiss the charges on the equivalent of summary judgment. He acknowledged that he could. I added that the charges were absurd, that even the strictest, most literal interpretation of the rules wouldn’t cover the alleged conduct. He agreed. I continued that nevertheless, the standards of behavior in the school manual were so broad and vague, and the discretion given to the student board so broad, and the lack of any governing rules of interpretation so glaring, that they could still “convict” me, really for any reason or no reason–they wouldn’t even have to issue an opinion. He nodded. I therefore asked him to exercise his authority to dismiss the charges. He refused, stating that he’d rather let the process play itself out, at which point he might or might not choose to intervene. Oh, and meanwhile I wouldn’t be allowed to graduate until the “case” was resolved.

Well, I didn’t want to deal with this nonsense, but I was at a loss as to how to proceed. Finally, an idea […]

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BDS Advocate Roger Waters Holds Some Strange Views about Jews

Last week I wrote about the Boycott, Divestment, and Sanctions movement against Israel and the tenuous foothold it is getting in the American academy. I also happened to read an article that led me to think about how some individuals are so convinced that Israel is obviously evil that he believes that something must be amiss with “the Jews” if so many of them not only can’t see what he sees, but actively defend the evil state. Whether the fact that it doesn’t occur to him that a reasonable person might disagree with his understanding of Israel is itself a reflection of preexisting latent anti-Jewish prejudice or is simply the hallmark of a dogmatic ideologue who is not immune to anti-Jewish feelings assumedly depends on the individual in question.

Roger Waters (of Pink Floyd fame) has helpfully pulled the two things I was thinking about together. Waters is perhaps the most outspoken Western artist who supports the BDS movement, and is very active in attempts to get others to boycott Israel.

Given some controversial imagery he has used at his concerts, has been at pains to deny that he is at all motivated by anti-Semitism. Here he is in September, in an interview with the Israeli newspaper, Yediot Ahoronot:

“I absolutely defend my right to express myself in my artwork in the way that I find the most appropriate and fitting. The Star of David is the symbol of the state of Israel. If you start to throw around the term “anti-Semite” at everyone who criticizes Israel – and that’s what they’re actually doing – that weakens your next attack on people who really are anti-Semites, ones that really don’t like Jews or Judaism or anything connected with it. I’m not an anti-Semite.”

“Two years ago, I explained


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Interesting Essay on Jews who Oppose Israel

Shlomo Fischer in the Times of Israel:

I suggest that in fact, they [ultra-Orthodox and leftists who are hostile to the existence of Israel] do share a common Jewish theme. This theme was articulated by the great Israeli scholar of the Jewish religion, Gershom Scholem, who argued that the price that the Jewish people paid for their development of the Messianic idea was their own “exit from history.” During the long history of the Exile the Jewish people imagined a Messianic, redeemed world of perfect justice, perfect national restoration, perfect relationship to God and religious observance. They could develop this idea precisely because they were removed from “history” – they could not participate as a national collective in world politics, in world culture and in the endeavors of building a state, developing a national economy etc. Thus, on the national level they did not have to deal with the inevitable, mistakes, compromises and wickedness which is necessarily part of any concrete action in the world. Instead they could develop one of the most important Jewish contributions to the human spirit – The Messianic Idea. But, as Scholem points out, there was something profoundly unreal about Jewish life in the Exile.

Zionism was one of the most profound revolutions in Jewish life. It constitutes, as Scholem defined it, a departure from the Messianic Idea to the realm of history. Once Jews enter the realm of history by building a Jewish state they necessarily become implicated in a life that is less than ideal – they become implicated – simply by the fact of action in the real world – in injustice, in moral compromises, corruption and other ills and wrongs. They can no longer cling to the perfect justice and perfect religion of the Messianic Idea. But here is the rub:


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The American Studies Association and the Pending, Watered Down, Israel Boycott

I wrote this for the Manhattan Institute’s excellent Minding the Campus site, and figured I’d repost it here.

From the bowels of academia comes news that the National Council of the American Studies Association has voted in favor of boycotting Israeli institutions. The boycott resolution goes to the full membership for an up or down vote.

The National Council’s vote has been hailed as a huge victory for the Boycott, Divestment, and Sanctions (BDS) movement. It’s not. As originally proposed, the boycott was to apply to individual Israeli scholars, who, for example, wished to participate in the ASA’s annual conference, if they received Israeli government or university funding. Since few Israeli scholars would have the means to travel to the U.S. without funding from their university, that would have been a meaningful means of exclusion.

Instead, the final resolution is limited to a refusal to by “the ASA in its official capacities to enter into formal collaborations with Israeli academic institutions, or with scholars who are expressly serving as representatives or ambassadors of those institutions.” So there is no call for a boycott by the membership acting as individuals, and no exclusion even by the ASA of normal cooperation with Israeli scholars.

Pretty Thin Gruel

Compared to the BDS movement’s official call for a “comprehensive and consistent” boycott of anyone affiliated with an Israeli academic or cultural institution, this is pretty thin gruel, unlikely to affect almost anyone. Even then, to get the resolution through the executive committee advocates had to agree to a membership-wide vote.

So the good news is that even in the far-left reaches of American academia, in an organization proud to name one of its awards in honor of ex-Black Panther and ex-Soviet stooge Angela Davis (two-time vice-presidential candidate for the Soviet-controlled Communist Party USA), […]

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New Book: Toward an American Conservatism: Constitutional Conservatism during the Progressive Era

I contributed one chapter to this collection of essays. Not surprisingly, I wrote about Lochner and liberty of contract jurisprudence, and its uneasy relationship to constitutional conservatism.

It’s an excellent book on an understudied topic. The one major impression I get from studying this general topic is that while the Progressives knew to a large extent where they wanted to take the country and the Constitution, conservatives of the day didn’t have their own positive ideology, but were simply trying to preserve what they saw as traditional American values of federalism and individual liberty against the Progressive wave. Not surprisingly, they failed, just as the Burger Court and (especially) the (early) Rehnquist Court, products of a defensive conservatism with little positive agenda, failed to roll back the liberal tide.

Unfortunately, the book costs $82.00, so few readers are going to add it to their personal collections, at least until a paperback (hopefully) arrives. But if the subject matter interests you, you should check it out at your local academic library, and ask the librarian to order it if they don’t already have it.

UPDATE: Here is a Table of Contents:

Introduction: Johnathan O’Neill and Joseph Postell
1. Constitutional Conservatism During the Progressive Era: The National Association for Constitutional Government and Constitutional Review; Johnathan O’Neill
2. The Progressive Origins of Conservative Hostility to Lochner v. New York; David E. Bernstein
3. William Howard Taft and the Struggle for the Soul of the Constitution; Sidney M. Milkis
4. The Election of 1912 and the Origins of Constitutional Conservatism; William Schambra
5. William Howard Taft on America and the Philippines: Equality, Natural Rights, and Imperialism; John Grant
6. Civilization versus Modernity: The League of Nations in the Crisis of World Civilization; W. Taylor Reveley
7. ‘Roaring’ against Progressivism: Calvin Coolidge’s Principled Conservatism; […]

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Lisa Duggan, NYU and Curtis Marez, UC San Diego: Deserve to be Boycotted?

Duggan is the president-elect of the American Studies Association and Marez is the president. According to this Inside Higher Ed piece, they both support a pending motion to have the ASA endorse a boycott of Israeli universities. If the IHE piece is correct, I think they should be treated by all academics (and others) of good will and sound mind the way they would treat Israelis–no lecture invites, no publications, no nothing. In short, boycott the boycotters. And that goes for anyone else who votes for the boycott. [UPDATE: Cathy Young has a fine column on the hypocrisy of the boycotters. Duggan is one of the “queer theorists,” who, as Young notes, in some bizarre logical inversion have focused their wrath on the Middle East’s most gay-friendly country, by far.]

UPDATE: Perusing the ASA’s website, I see that they have a prize named after Angela Davis–yes, that Angela Davis, Gus Hall’s two-time running mate on the Communist Party ticket in 1980 and 1984 (so much for the ASA’s commitment to academic freedom (the purported rationale for the boycott), not exactly something Communists are known for). When did “mainstream” academia become such a circus? […]

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Speaking of the Kennedy Assassination

While fifty years later, much of the MSM still refuses to acknowledge that JFK’s assassin was a Communist loser, somehow it’s also apparently not cricket to point out that his brother RFK was murdered by a Palestinian terrorist.

So let’s review. Sirhan Sirhan was a Palestinian refugee with Jordanian citizenship. He murdered Kennedy because the latter promised to send advanced fighter planes to Israel. The PLO terrorist group Black September demanded his release in exchange for hostages in 1973, recognizing that he was “one of theirs.”

Yet of 5755 hits for “Sirhan Sirhan” in the ALLNEWS database on Westlaw, only four of them refer to him as a “Palestinian terrorist” or “Palestinian extremist;” three of these sources are the Jerusalem Post, and one is the New York Jewish Week. In mainstream publications, you actually get phrases like this, “Black September terrorists who kidnapped the Western diplomats in a failed plot to free Palestinian terrorists in European jails and Sirhan Sirhan, the killer of Robert F. Kennedy,” as if Sirhan Sirhan, a terrorist and a Palestinian, on the same “trade of for hostages list” as other Palestinian terrorists, was somehow not a “Palestinian terrorist.” An even better one, from the Huffington Post: “[RFK] was gunned down in a hotel kitchen by a 24-year-old Palestinian whose motives have never been determined.” (Ironically, sources from the Arab world (e.g.,) seem more likely to acknowledge the real dynamic, though with the message that the U.S. and assumedly RFK got what was coming to it and him for supporting Israel).

As I was growing up, the assassinations of JFK, MLK, and RFK, were always portrayed as a resulting from a “culture of violence” and “hatred” that showed that America was going nuts in the 1960s, first because of the […]

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Remarkable Take on JFK’s Assassination

This is really amazing to me. The New York Times and the Washington Post each manages to publish a piece on the Kennedy assassination, by two different authors, focusing on what they see as the right-wing extremist environment in Dallas in 1963, and while never saying so directly, implicitly blaming Kennedy’s assassination on that environment. [UPDATE: The Washingtonian magazine is more explicit: “The city of hate had, in fact, killed the President.”]

Look, guys. Lee Harvey Oswald murdered JFK. Oswald was a Communist. Not a small c, “all we are saying is give peace a chance and let’s support Negro civil rights” kind of Communist, but someone so committed to the cause (and so blind to the nature of the USSR) that he actually went to live in the Soviet Union. And when that didn’t work out, Oswald became a great admirer of Castro. He apparently would have gone to live in Cuba before the assassination if the Cubans would have had him. Before assassinating Kennedy, Oswald tried to kill a retired right-wing general. As near as we can tell, he targeted Kennedy in revenge for Kennedy’s anti-Castro actions.

The attempt to at best distract us from who the killer was and why he killed JFK, and at worst to pin the blame on entirely innocent people for inciting Dallas opinion against JFK (or perhaps to imply that the right-wingers plotted the assassination), even though those innocents were exactly the type of people Oswald hated, is just pathetic, and the Times and Post should be embarrassed for publishing these pieces. The Post piece is especially embarrassing because it explicitly links Dallas “right-wing extremism” circa 1963 to the modern “Tea Party,” as if to say, “if the Tea Party had been around in 1963, one of its members would […]

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Talk at the University of Chicago Law School Tomorrow

I’ll be speaking at noon on Rehabilitating Lochner for the Federalist Society, with comments from Prof. Laura Weinrib. Weinrib, I should mention, is doing some really interesting work on how left-leaning jurisprudence, which had been largely indifferent to civil liberties in the Progressive era, came to embrace them soon thereafter. Come by if you’re in the neighborhood. (And by the way, I’m currently scheduling talks for next semester.) […]

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Ian Millhiser on Conservatism and the Judiciary

Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in original post deleted after colleagues pointed out that I likely misconstrued a poorly written sentence.]

Millhiser provides a rather standard progressive critique of constitutional history from the 1890s until today, with no cliche unrepeated, no matter how inaccurate. “Laissez faire Social Darwinism!” “Union busters”! “Judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes.” Judges struck down child labor laws! And of course, “LOCHNER!” Regular readers of this blog will recognize that these assertions range from blatantly false to distinctly unnuanced. (Just for example on the unnuanced front, the Court invalidated federal child labor laws as beyond the Commerce and Taxing powers, but upheld state child labor laws which then spread to every state).

No matter, says Millhiser, at some point there were pleasant surprises as Justices appointed by FDR and beyond protected the rights of African Americans in cases like Brown v. Board of Education and “ushered in modern free speech doctrine,” moving the Court in a “progressive” direction.

Millhiser closes his article with a quotation from Learned Hand, who “offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. ‘The spirit of liberty,’ said Hand, ‘is the spirit which is not too sure that it is right.’” The irony, which Millhiser apparently doesn’t appreciate, is that Hand opposed Brown and modern free speech doctrine (which he in […]

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