The Volokh Conspiracy

The flap over Christine O’Donnell’s debate comment suggests that many people still don’t know how Separation of Church and State became part of the law of the First Amendment.

On this, I reprint part of an old post from 2005:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

On Wednesday afternoon, I received the following email missive from BarackObama.com:

James —

The special interests in Washington are not happy, and it’s because of something you did.

Since President Obama moved into the White House, this movement has stripped them of their influence, proving we could take on the lobbyists and corporate cash with good, old-fashioned organizing.

Now these groups are vowing to get payback in the fall elections — and they have put all their chips on one man: Congressman John Boehner.

Third-party organizations have already spent millions to help Republicans take over the House and make him Speaker — and you can bet there are millions more to come in the form of nasty TV ads and shadowy robo-calls before November.

Here’s how we fight back: the largest-scale voter turnout effort this party has ever assembled in an election like this.

Another grassroots supporter has promised to match, dollar for dollar, whatever you can chip in today. These matched donations add up fast — and right now there are 3,211 donations across the country waiting to be doubled.

Don’t leave this money on the table — donate $5 or more today and double your impact.

It’s easy to see why these special interests picked John Boehner. This is a guy who first made national news 14 years ago when he was caught handing out checks from tobacco lobbyists on the House floor.

John Boehner said he did nothing wrong — he was simply helping out his lobbyist friends.

And, in all of the fights we’ve waged together these past 20 months, he’s been these special interests’ right-hand man.

He teamed up with financial lobbyists to do everything he could to stall Wall Street reform and even took time before the vote on health reform to scream “Hell no!” over and over again from the podium.

If John Boehner is handed the Speaker’s gavel, all that is wrong with Washington is back in business. Their plans are simple — unravel what this movement has done and stand in the way of the rest of President Obama’s agenda. Some Republican leaders have even threatened to shut down the government to get their way — a heartless move that would hold Social Security checks hostage and shut down veterans’ hospitals across the country.

With just 48 days to go until the election, this movement is the only thing standing in John Boehner’s way.

Take advantage of this opportunity to piggy-back on another grassroots supporter’s promise. Help fund our effort to fight back against Republicans and keep America moving forward.

Chip in $5 today to get your donation doubled:

https://donate.barackobama.com/Match2010

Thanks,

Mitch

Mitch Stewart
Director
Organizing for America

The Alinskyite attempt to freeze and demonize John Boehner was recently furthered by the New York Times. Is the Times doing what it did in 2008 and doing an unfair lobbyist hit story on a Republican leader, or does Boehner really have closer ties to lobbyists than Speaker Nancy Pelosi? I don’t know much about Boehner, but I was impressed with his speech before the House as they were passing the Cap & Trade bill (which so far has stalled in the Senate).

BTW, Bolehner has responded to the Times.

While the Democratic attack on Boehner may or may not work this year, contrary to some Republican commentary, such attacks CAN work. I remember 1995-96, when Dick Morris’s campaign on behalf of Bill Clinton against Newt Gingrich destroyed Gingrich’s credibility, an attack from which Gingrich has still not fully recovered.

Predicting the stock market is either impossible or extraordinarily difficult, so I generally refrain from doing so — in print. Even apparently successful investors who trade daily or weekly are wrong nearly as often as they are right. So with the caveat that the chances of my being right are at best not appreciably better 50-50, I wanted to share an optimistic scenario for the stock market over the next 2-3 years.

Typically, a Democratic majority in the House of Representatives has been bad for the stock market and the economy and Republican control has been good (in the past, I have run, but not published, the numbers back to 1854). The reverse is generally true for the presidency.

There have been two switches from Democratic to Republican control of the House since 1950: in the 1994 election and in the 1952 election.

Cumulative returns in the S&P 500 over the two years following the 1994 Republican takeover (1995-96) were 69.8%. (The three-year returns for 1995-97 were a staggering 127.0% [+38%,+23%,+33%].)

Cumulative returns in the S&P 500 over the two years following the 1952 takeover (1953-54) were 54.7%. (The three year returns for 1953-55 were 98.4% [-1%,+56%,+28%], but the Democrats retook the House in the 1954 election.)

Indeed, the best year for the S&P 500 since World War II was 1954 (56.0%), the second year after a Republican takeover of the House. The best year since 1976 was 1995 (38.5%), the year after the last Republican takeover of the House.

So will we get a huge stock market increase this time, as we have the last two times that Republicans have taken the House? Maybe, maybe not.

If the Republicans take the House, why might we get a strong stock market?

(1) an end to disastrous new government efforts to stimulate the economy (or at least a significant slow down in such wealth-destroying efforts);

(2) a probable reduction in regulatory uncertainty; and

(3) a reduction in the odds for increased taxes (beyond the expiration of the Bush Tax cuts for those making over $250,000).

A strong stock market and a reduction in regulatory uncertainty would likely lead to robust economic growth — and eventually strong job growth. That would make the world a lot better for our students and our children.

I don’t expect that good economic policy will suddenly start coming out of Washington in 2011, but I do hope that the policies will not get increasingly worse, month by month. Though we will never know, I believe that, if the Federal Reserve and the Bush and Obama Administrations had done little else than lower interest rates, provide liquidity, and temporarily guarantee money market funds, we would have had a brief, sharp recession, followed already by robust GDP growth.

So why might this optimistic 2011-2013 scenario not happen?

(1) the Republicans might not retake the House (the number of pick-ups needed is exceedingly large);

(2) the Republicans might act like the Democrats once they regain control, as they mostly did the last time they held sway;

(3) significant tax rate increases are already scheduled for 2011;

(4) because of tax increases, economic activity may have already been shifted from 2011 to 2010;

(5) a new carbon cap or tax may be imposed either by a lame duck Congress or by the EPA;

(6) regulatory uncertainties persist, especially over health care;

(7) two events (1952, 1994) are not enough to define an effect, especially since if one goes back further in time, this effect is not present. (The two-year returns following prior Republican takeovers of the House averaged just 5.6%.); and

(8) there were special circumstances in the 1953-55 period (end of the Korean War, worldwide post-WW2 boom) and in the 1995-97 period (computer revolution; end of the Cold War and expansion of economic freedom).

Ironically, if the Republicans retake the House and the stock market booms as it did after the 1952 and 1994 takeovers, such a strong recovery would greatly increase President Obama’s chances of being re-elected.

So what do I think about the stock market? At the moment at least, I am fully invested in US and foreign stocks and mutual funds — and I hope to remain so over most of the next two years, at least if the Republicans take the House and there are no major new pieces of economy-destroying legislation or EPA regulations.

A few years ago documentary filmmaker Ric Burns was hired by Goldman Sachs to make a documentary on the firm, with Goldman retaining editorial control.

Funny or Die has an excerpt from the upcoming film (after a particularly loud and annoying ad from Minyanville):

In a post below, Orin Kerr expresses his opinion that he does not find the Obama birthday email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts.

Orin writes:

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). . . .

Given that this apparently was . . . only sent to people who voluntarily signed up to receive such things, I have trouble understanding why Jim sees it as “emulating the trappings” of a dictatorship.

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign.

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list.

Orin is mistaken on the factual basis for his opinion.

Would having the facts right change his opinion? Frankly, I don’t know.

I received the following email from First Lady Michelle Obama:

SUBJECT: Will you sign Barack’s birthday card, James?

James –

Every year, our family tries to come up with a fun way to wish Barack a happy birthday.

And this August 4th, when he turns 49, I have something new in mind.

This has been a big — and hectic — year for him. After signing the Affordable Care Act and Wall Street reform into law — and completing his first year as president — I think it’s safe to say we will remember it for a long time.

And I know full well how much he credits this movement, and the work of supporters like you, for the change that we’ve accomplished.

So I’m putting together a birthday card that I would like you to sign. Together with other Organizing for America supporters — and me, Malia, Sasha, and Bo — we’ll wish him a happy birthday and let him know that we’re ready to take on the year ahead alongside him.

Will you wish Barack a happy birthday with me?

This year also brought a lot of surprises — some good and some bad.

Supporters like you have helped him make the best of it — by contacting Congress to help push stalled legislation forward, by re-engaging supporters in the political process, by giving back with service projects across the country, and so much more.

And while we can’t know what the coming year will bring, all of us, working together, will continue pushing forward for change.

Will you help make this a memorable birthday for Barack and wish him a happy 49th?

http://my.barackobama.com/birthday

Thanks so much,

Michelle Obama

I find it hard to say precisely why I find this email a bit creepy. At one level this seems innocuous enough–and it is definitely not a big thing.

At another level, asking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear.

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

Last, it seems strange for Michelle Obama to be trying to get us to sign Barack’s birthday card when she is scheduled to be in Spain with [at least one of] her daughters during the President’s birthday.

UPDATE: In a subsequent post, Orin Kerr expresses his opinion that he does not find this email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts. Orin writes:

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about).

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence, I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign.

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list.

Orin is mistaken on the factual basis for his opinion.

Jared Bernstein (Politico photo)

Jared Bernstein, chief economist for Vice President Joseph Biden, served in 2008 as an economic adviser to the Obama campaign. At the same time, he was a member of JournoList, the controversial progressive email list.

Bernstein’s bio at Politico, which appears not to have been updated since 2008, states: “He is an economic adviser to the Obama campaign.”

He was known to many for his regular appearances on the financial channel CNBC. His primary employer in 2008 was the Economic Policy Institute, a pro-labor progressive think tank, but according to his bio when appointed to the Obama-Biden Administration, he also was a member of the Panel of Economic Advisers of the Congressional Budget Office.

Reached today at the Office of the Vice President, Bernstein revealed that his position with the Obama campaign was as something called a “surrogate.” “I was not paid by the campaign,” he explained. “They would call me from time to time to represent their positions, that side of the debate.”

Asked when he left JournoList, Bernstein replied, ‘‘I think I left the list around the time I came here.” Bernstein was announced as Chief Economist and Economic Policy Adviser to the Vice President-elect on December 8, 2008.

One question that has arisen in the last week is how closely JournoList members, not only discussed how to shape the news to advance the fortunes of Barack Obama, but coordinated with the Obama campaign. Jared Bernstein’s position as an unpaid adviser and surrogate shows that there was at least one direct link between JournoList and the Obama campaign.

Bernstein’s serving on the Economic Advisory Panel of the CBO is less worrisome, though it appears to violate Ezra Klein’s first rule for JournoList:

At the beginning, I set two rules for the membership. The first was the easy one: No one who worked for the government in any capacity could join.

It would appear that Bernstein’s presence on the list violated Klein’s first rule, since he met the test of working “for the government in any capacity.”

Yet note Klein’s careful wording here. People who worked for the government in any capacity couldn’t join, but could they stay on the list if they took a government job after joining?

Were there other campaign advisers or part-time government officials who participated on JournoList?

UPDATE: Here is an example of Bernstein’s humorous political writing at the Huffington Post.

2D UPDATE: I have an anonymous source who has shown me an email thread that appears to be from JournoList. From his search of the JournoList archives, he believes that Bernstein’s last direct email to the list was on December 5, 2008, a charming farewell sent 3 days before he was introduced as Biden’s chief economist. Indeed, months later there were several emails to the list from members who wondered how to contact Bernstein.

I hope to have a lot more in the next few days.

The latest quotes from the JournoList emails are on the initial response to Sarah Palin. I remember being shocked at the viciousness of the attacks at the time.

Defenders of J-List have argued that the Daily Caller (DC) is taking quotations out of context. That is certainly possible. For that reason, it would be better if the DC (or one of the J-Listers complaining about the DC) released an entire thread or an entire day or two of posts so that we can get a better sense of the broader context.

Nonetheless, without the broader context, the quotes and characterizations appear to be worrisome:

Daniel Levy of the Century Foundation noted that Obama’s “non-official campaign” would need to work hard to discredit Palin. “This seems to me like an occasion when the non-official campaign has a big role to play in defining Palin, shaping the terms of the conversation and saying things that the official [Obama] campaign shouldn’t say – very hard-hitting stuff, including some of the things that people have been noting here – scare people about having this woefully inexperienced, no foreign policy/national security/right-wing christia wing-nut a heartbeat away …… bang away at McCain’s age making this unusually significant …. I think people should be replicating some of the not-so-pleasant viral email campaigns that were used against [Obama].” . . .

Chris Hayes of the Nation wrote in with words of encouragement, and to ask for more talking points. “Keep the ideas coming! Have to go on TV to talk about this in a few min and need all the help I can get,” Hayes wrote.

Suzanne Nossel, chief of operations for Human Rights Watch, added a novel take: “I think it is and can be spun as a profoundly sexist pick. Women should feel umbrage at the idea that their votes can be attracted just by putting a woman, any woman, on the ticket no matter her qualifications or views.”

Mother Jones’s Stein loved the idea. “That’s excellent! If enough people – people on this list? – write that the pick is sexist, you’ll have the networks debating it for days. And that negates the SINGLE thing Palin brings to the ticket,” he wrote. . . .

Time’s Joe Klein then linked to his own piece, parts of which he acknowledged came from strategy sessions on Journolist. “Here’s my attempt to incorporate the accumulated wisdom of this august list-serve community,” he wrote. And indeed Klein’s article contained arguments developed by his fellow Journolisters.

I wonder whether JournoList was behind several brief, but intense, herd political attacks on CNBC personnel that at different times seemed to come out of the blue (on Jim Cramer, Erin Burnett, and Rick Santelli). They each struck me as odd at the time, especially because I suspect that Cramer and Burnett were only a few months past voting for Obama.

1. A New JournoList Thread on the 2008 Election.

The Daily Caller has yet another JournoList thread up on its website. Members are expressing their strong emotions and expectations for the future on the day Barack Obama was elected president.

Though some of the comments on Nov. 3 and 4 look a bit silly in retrospect, it really was a big deal that this country elected an African-American president. Indeed, besides having a smarter president who was capable of delivering a great speech, the chief benefits I saw at the time were that (1) Obama’s election proved that this country’s views on race had improved markedly, and (2) it was reasonable to hope that Obama would usher in a new, post-racial era.

So I don’t find most of the early gushing comments in the JournoList thread at all out-of-line. But there was one by Spencer Ackerman that jumped off the page. Adam Serwer of the American Prospect had posted a link to an article he had just written on the historic nature of Obama’s election. Ackerman’s response:

Goddamn, did an Obama speechwriter ghost that post? That’s pitch-perfect, Adam. Take a bow.

Just imagine: here’s a journalist who thinks it’s a GOOD THING for another journalist to have written an editorial that read as if it were ghost-written by an Obama speechwriter.

[As the win sinks in, on Nov. 7 the Journolist comments turn nasty. Ackerman again:

Let’s just throw Ledeen against a wall. Or, pace Dr. Alterman, throw him through a plate glass window. I’ll bet a little spot of violence would shut him right the fuck up, as with most bullies.

And Eric Alterman, who is described as the author of "What Liberal Media?" writes:

Fucking Nascar retards]

This brings up a problem with tarring participants in JournoList with the opinions of its kookier members. Is everyone who has ever posted a comment on a website responsible for the least responsible comments made on those sites: think of the range of comments at Democratic Underground, Free Republic or Daily Kos — or even Althouse or the Volokh Conspiracy?

When reading further revelations from JournoList, one must be careful not to attribute the opinions of one individual to another — I would hope that a majority of JournoList members would not think Ackerman’s comment to be a compliment — though it would often be fair to characterize the general drift of the comments in a thread.

2. Nate Silver’s Life on J-List.

Nate Silver has a post on 538 (tip to Instapundit and Legal Insurrection) that reviews what he considers the two most questionable comments he made on JournoList. Both strike me as unobjectionable, but judge for yourself.

Obviously, Silver is enormously talented (which everyone should already know). But I for one really appreciate his taking this JournoList issue seriously and wanting to explain his posted comments that he thinks that some might consider conspiratorial or inappropriate (I don’t).

Kudos to Silver.

UPDATE: In the hour after posting I made a few small changes in the early text and added the second Ackerman quote and the Alterman quote.

2D UPDATE: Emphasizing my point about not attributing the views of one JournoLister to another, Jonathan Chait writes of Ackerman: “Ackerman was in the habit of writing wild, bombastic things that people usually didn’t feel like responding to.”

It appears from the last few days’ stories that JournoList was even worse than I’d always suspected. The Daily Caller reports that UCLA law professor Jonathan Zasloff raised the possibility of a government shutdown of Fox News and defended pulling their White House press pass:

The very existence of Fox News, meanwhile, sends Journolisters into paroxysms of rage. When Howell Raines charged that the network had a conservative bias, the members of Journolist discussed whether the federal government should shut the channel down.

“I am genuinely scared” of Fox, wrote Guardian columnist Daniel Davies, because it “shows you that a genuinely shameless and unethical media organisation *cannot* be controlled by any form of peer pressure or self-regulation, and nor can it be successfully cold-shouldered or ostracised. In order to have even a semblance of control, you need a tough legal framework.” Davies, a Brit, frequently argued the United States needed stricter libel laws.

“I agree,” said Michael Scherer of Time Magazine. Roger “Ailes understands that his job is to build a tribal identity, not a news organization. You can’t hurt Fox by saying it gets it wrong, if Ailes just uses the criticism to deepen the tribal identity.”

Jonathan Zasloff, a law professor at UCLA, suggested that the federal government simply yank Fox off the air. “I hate to open this can of worms,” he wrote, “but is there any reason why the FCC couldn’t simply pull their broadcasting permit once it expires?”

And so a debate ensued. Time’s Scherer, who had seemed to express support for increased regulation of Fox, suddenly appeared to have qualms: “Do you really want the political parties/white house picking which media operations are news operations and which are a less respectable hybrid of news and political advocacy?”

But Zasloff stuck to his position. “I think that they are doing that anyway; they leak to whom they want to for political purposes,” he wrote. “If this means that some White House reporters don’t get a press pass for the press secretary’s daily briefing and that this means that they actually have to, you know, do some reporting and analysis instead of repeating press releases, then I’ll take that risk.”

Scherer seemed alarmed. “So we would have press briefings in which only media organizations that are deemed by the briefer to be acceptable are invited to attend?”

John Judis, a senior editor at the New Republic, came down on Zasloff’s side, the side of censorship. “Pre-Fox,” he wrote, “I’d say Scherer’s questions made sense as a question of principle. Now it is only tactical.”

I would have expected better of Zasloff.

Wasn’t it just a couple weeks ago that we were all confidently assured by JournoList members that there was nothing noteworthy in their archives? Their message was the old street cop’s line: “Move along, nothing to see here.”

Frankly, I’d rather watch for awhile — and make up my own mind.

I have been working through a draft SSRN paper on Ideological Diversity and Law School Hiring by Douglas M. Spencer and James C. Phillips of Berkeley (tip to Glenn Reynolds and Paul Caron).

The paper concludes:

Using regression analysis, we find no statistically significant relationship between
political ideology and prestige of hiring, although we identify a very large discrepancy between the proportion of new professors that can clearly be identified as liberal or conservative and those whose ideology is less clear.

There are several problems with the regression analyses in this paper:

1. I found one outright error. The indicator (dummy) variable LIBERAL is coded in this way: “Our second ideology variable is a dummy variable where 1 indicates a liberal candidate (1 to 3 on the ideology scale), and 0 indicating a conservative candidate (-3 to -1 on the ideology scale).”

That would leave those with a 0 on their ideology scale as missing data. But their regressions including this variable show a full N of 149 new professors hired. Using the statistical techniques they used, that is statistically impossible. That error needs to be corrected.

2. When coding a dummy variable, for a range of statistical reasons, the reference category should be the larger group. Thus the variable should have been coded as conservative=1, liberal or unknown=0. Using a small group as the reference group (the 0 coding) can cause havoc with the significance of that and other variables. Conservatives are not the norm; after all, only 8 professors in their sample of 149 professors were confidently identified as conservative (and about 20 more as probable conservatives). If your statistical technique treats conservatives as the norm, the regressions that result will usually lead to unusual results, unreflective of what is going on in the data.

Beyond statistical reasons for coding the dummy variable as conservatives v. others, there are the theoretical reasons as well. The usual argument is that known conservatives are discriminated against compared to more typical candidates (liberals or non-political types), not that liberals are favored over the non-political (as well as conservatives). There is a good chance that fitting the dummy variable properly will reveal a significant effect, given that the miscoded political variable’s effect is already pretty large.

3. The models have too many variables (about 20 or more variables) for the small number of subjects (149). Especially with colinearity, that can bleed off significant effects. It is unclear why particular nonlinear transformations are used. Spencer and Phillips might want to use fractional polynomials (the FRACPOLY command in STATA) to choose the best transformations for control variables (In my new article with Rafe Stolzenberg on politically motivated departure from the Supreme Court, we use fractional polynomials to fit the controls.)

4. I would try to fit the models without the race and gender variables to see whether that would make the political effect significant. That would give me some sense of how robust the conclusions are to the variables used and models fit. Then I would try interactions of race and politics to see whether the race and gender effects are really interaction effects with politics (ie, exclude FEMALE and fit CONSERV MALE, CONSERV FEMALE, and NON-CONSERV FEMALE). It wouldn’t surprise me if the female advantage is solely among non-conservative females, not spread evenly between conservative and non-conservative women. In other words, with so few cases (including only 8 clear conservatives), I would try fewer variables and different combinations to test for robustness.

UPDATE: Spencer and Phillips compute their stats using the usual assumption–that theirs is a random sample drawn from an infinite population. But in fact their sample is a systematic sample of one-third of a population of recent law teachers. If one adjusted their stats for the sampling design they actually used (which is an unusual adjustment to make), then the ideological coefficients would almost certainly already be large enough to be statistically significant. Adding a few sentences or a footnote to that effect might be a good thing.

The Chronicle of Higher Education confirms my research and Big Journalism’s initial doubts that Michael Bellesiles’s story published in the Chronicle Review is false. There was indeed no soldier injured in Iraq or Afghanistan who fit Bellesiles’s story.

As the Chronicle reports the facts (which are a bit sketchy), the student lied to Bellesiles, whom they clear of fabricating the story he published in the Chronicle Review:

Editor’s note:

The Chronicle has looked into questions raised by commenters and bloggers about this article.

We talked to the teaching assistant for the course, who confirmed Mr. Bellesiles’s account of the student’s story. According to the teaching assistant, a Marine veteran, the student told him that his brother had been shot in the head and later died from his injuries.

The Chronicle also spoke with the student called “Ernesto” in the article. The student said the soldier who died was his half-brother, was a member of the U.S. Army, and had died in Afghanistan in November. The student declined to provide further details because of unspecified “issues.”

At The Chronicle’s request, an Army spokesman searched a database of all U.S. military deaths in Iraq and Afghanistan using the name the student provided. There were no matches. The Chronicle’s own search of Department of Defense news releases turned up no casualties under any name that matched the student’s description.

Subsequently the student told us that he had fabricated several details in the story he had told Mr. Bellesiles and The Chronicle. The student said he knew a soldier who he believed had died in Afghanistan, but he said the person was not his half-brother. The student had no explanation for why the name was not on the military’s casualty lists.

Asked for a response, Mr. Bellesiles said he was saddened that his student had altered the details of a personal tragedy and that he regretted that he had unknowingly passed on a story that was not accurate. “But I hope that no one mistakes the point of my article in calling for greater sympathy and support in our colleges for veterans and the families of those who have suffered loss in our current wars.”

More to come.

The Chronicle of Higher Education has not yet revealed the results of its investigation of the veracity of Michael Bellesiles’s story about a dying soldier and his student brother. One can only speculate why it is taking more than a day or two to verify a story that should have been easy to verify (if it is true).

While waiting for the Chronicle, I thought I’d post the views of a commenter (who says that he is a professor of military history) published in the comments after Bellesiles’s story at the Chronicle Review website (scroll down to comment 71, by mhl1972):

I actually do teach military history, in the present, at a large R-1 university. And I didn’t believe a word of Bellesisles’ story, even before I made the connection to his earlier troubles. Here’s why:

The characters are just too perfectly drawn, and the events unfold in a predictably tragic yet meaningful way. “Ernesto” and “Javier”–they are plucky immigrants that liberal academics are bound to root for, as opposed to white meatheads named Dave and Bob. Javier joined the military to thank the nation for “giving his family refuge”–they came here for political purposes, not to take our jobs! Ernesto, a Latino, writes a paper critical of DADT, in order to cement our liberal affection for him . . . . What’s more, his research paper is “amazing,” so that all us academics, who by June are ready to stab our own eyes out after spending 9 months trying to teach disinterested students who IM right through class, will like him all the more! Because it would be totally unrealistic to imagine that a non-native speaker of English in a college history class might struggle with his work! Ernesto’s brother is serving in combat–how enobling! And how rare, especially in Iraq these days! And then he gets shot in the head by a sniper, an uncomplicated death that makes clear who was right and who was wrong, because the shooter is obviously skilled, and poor Javier couldn’t fight back because he couldn’t even see the person sniping at him! It works much better than, say, “he got killed by friendly fire while kicking down the door to a family’s house,” or, “he got electrocuted because a greedy private contractor installed faulty wiring in a FOB shower.”

It’s all so perfectly tragic! And, Javier’s condition is such that he can’t even get evacuated to Germany, which serves the narrative very conveniently, because the author needs the family to not be able to go to Javier’s bedside, something the real-life military would facilitate, so that Ernesto can remain in the story. And then Ernesto, in the course of just a few weeks, becomes a skinhead military junkie–but one who still comes to class! Yes, that is far more realistic than someone with profound depression, say, withdrawing from the university or just dropping out altogether.

It’s all just so perfect–so achingly, tragically, profoundly perfect. Just like real life!

Yes, teaching military history in a time of war IS hard, because, more often, you have students in ROTC uniforms, which is kind of the equivalent of the football team wearing their uniforms to class, using said symbol of national sacrifice to bully and silence other students in the class who are afraid of appearing that they “don’t support the troops” if they offer a critical appraisal of American foreign policy. And then there are the real veterans–the combat veterans tend to be quiet, and they smile these knowing little smiles and tell you creepy things in confidence after class, while the retired pillow-case stuffers and chairborne rangers (the vast majority of military veterans) use their “status” to bluff, bluster, and intimidate.

I don’t believe a word [o]f Bellesisles’ “story.” As Tim O’Brien tells us in “The Things They Carried,” any meaning or moral that can be teased out of a “true war story” ought to make you wary of its veracity. . . . [Bellesiles's] piece is based solely on his own observations, so it rests on his credibility alone–and he has none. The Chronicle should be embarrassed to have printed this drivel. [emphasis added]

I would repeat the caveats I made last week about a similar characterization made by a commenter:

I would not endorse the tone of this commenter (let alone the added details not in Bellesiles’s story, e.g., . . . [Ernesto's first language]), and it is definitely too soon to conclude that Bellesiles has fabricated the details of his story. Yet the commenter highlights the anti-war implications of Bellesiles’s claims.

Indeed, in style Bellesiles’s piece reads as if it were a short story (perhaps inspired by a real case) with himself playing the part of the sensitive, caring professor.

Late Monday afternoon, I received a one-sentence email from Liz McMillen, Editor of the Chronicle Review:

I just wanted to let you know that we are looking into the questions you have raised in your blog post Friday about Michael Bellesiles’s article for us.

Here is some background on Bellesiles’s June 27th article.

Here is some background on Bellesiles’s problems in 2000-2002.

A few days ago, questions were raised first by Big Journalism and then by me about a story that Michael Bellesiles published in the June 27th issue of the Chronicle of Higher Education: Teaching Military History in a Time of War. I have now read through every DoD casualty report from last fall for both Iraq and Afghanistan and news obituaries for most of them, and I have found none that was even remotely possible as the case that Bellesiles wrote about in the Chronicle. This post discusses the serious questions this raises for the veracity of Bellesiles account.

Continue reading ‘Serious Questions About the Veracity of Michael Bellesiles’s Latest Tale’ »

In its June 27, 2010 issue, the Chronicle of Higher Education published an essay by Michael Bellesiles, Teaching Military History in a Time of War:

Yet the reality of teaching in wartime, most particularly at a working-class college such as Central Connecticut State University, is that war has touched the families of many of our students, and it is a tragic error to think that they have not experienced the staggering blow of loss and personal sacrifice.

That lesson came home to me with great force this last semester. . . . On the first day of my military-history class, after a discussion of the concept of democratic warfare, I asked my usual question about veterans or National Guard members present, and if any students had family members serving in the military. Ernesto (I have changed names out of respect for this family’s privacy), a shy but exceedingly bright student, smiled with evident pride as he mentioned that his brother Javier had recently enlisted in the Army. We discussed his brother’s reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.

Two weeks later, the class discussed Baron von Steuben’s training of the American Continental Army . . . . Afterward, Ernesto told me that his brother had been sent to Iraq. He admitted he was worried about Javier’s safety, but had read several articles indicating that the war was winding down.

Then, after a class . . . [on the Mexican War], Ernesto told me that Javier had called him the day before and described his first encounter with enemy fire, which had been chaotic and without consequence. A few days later, Ernesto gave an amazing paper on a woman who had disguised herself as a man so that she could join the Union Army . . . . In the minutes before the very next class, during which we explored Ulysses S. Grant’s strategy of attrition, Ernesto came to me and said that he could not attend class, as his brother had been shot in the head by a sniper and was in critical condition.

Sorrow was written across Ernesto’s young face. Here was a student I relied on for an astute observation and a ready smile; now he looked on the verge of tears. I told him to give no further thought to the class, but to devote himself to his family. Ernesto missed the wars against the Plains Indians and the Spanish-American War, but showed up in time for the Philippine Insurrection. I hoped that Ernesto’s presence meant that his brother had recovered, only to be surprised to hear that Javier was still in danger, his condition so serious that the doctors feared moving him to the military hospital in Germany. When I asked him why he had come to class, Ernesto insisted that he hoped his studies would take his mind off his worries for his brother.

That afternoon I asked my teaching assistant, a Marine veteran named Joe, to talk with Ernesto. Over the next several weeks, as we traversed the terrain of the 20th century with the two world wars and Korea, Joe spoke regularly with Ernesto, advising him on his final paper and on dealing with the military bureaucracy. . . . And then, just as we were coming to . . . Vietnam, I received an e-mail from Ernesto letting me know that his brother had died.

Not surprisingly, Ernesto’s attendance became erratic, and he skipped entirely the discussion of our current wars.

In today’s Big Journalism, Dutton Peabody calls Bellesiles’s story “fishy” and asks whether the Chronicle bothered to check the story:

But given Mr. Bellesiles’ last book, unkind minds have fallen back on President Reagan’s “trust, but verify” maxim.

Peabody has trouble finding Bellesiles on the Central Connecticut State University (CCSU) website, but I found him there. Bellesiles taught at CCSU in both the Fall 2009 and the Spring 2010 terms. However, according to the course listings there, he taught his Military History course in the Fall 2009 semester, not the Spring 2010 semester. The Spring term ended in May, so (if the CCSU website is correct) Bellesiles may have been mistaken in describing the events as occurring in “this last semester.”

Peabody also wonders about the fast progression from the brother “Javier” being “recently enlisted” as of the first class and yet seriously wounded only a few weeks later.

But Peabody’s chief problem is this:

Funny: the Hartford Courant keeps careful track of Connecticut casualties, and there has been only one fatality so far this year, reported on April 4th as recently killed. That would seem weeks before Mr. Bellesiles says Javier died in Iraq. And then Lance Corporal Tyler Griffin was a Marine, not Army. And killed by an IED, not a shot to the head. And in Afghanistan, not Iraq. Nor was he an immigrant, as Javier is described. (“We discussed [his] reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.”) And there is no sign of a brother in the Courant obituary.

In my review of several sites, but chiefly ICasualties, I find no Connecticut military killed in Iraq in 2009 or 2010 (and only one in 2008, a Marine who died from a non-hostile cause). If one expands the search to all US military deaths in Iraq from all US states and territories from the beginning of the Fall 2009 semester through the end of classes in the May 2010 semester, I could find no deaths from any state that fit Bellesiles’s account (Iraq War, recent Army enlistee, hostile fire from a rifle or similar weapon, lingering death). Nor did my quick review of all US military deaths in Afghanistan (if one changed the theater from Iraq to Afghanistan) during the last two CCSU semesters turn up any likely prospects (though I would need a closer review to be certain).

Thus it appears that Bellesiles’s account is false in at least some trivial respect–probably in the term he taught the course and in the circumstances of “Javier’s” service or death.

Further, without personal knowledge of Army procedures, I found it strange that a critically injured US soldier would not be brought to Germany for treatment over a period of several weeks. Further, while not suspicious in itself, at this stage of the Iraqi War almost all US deaths occur on the same day as the attack or on the following day. Indeed, this detail alone can be used to exclude most deaths in Iraq and Afghanistan in the last year.

If I had to guess, I would suspect that the story Bellesiles told in the Chronicle is mostly true; after all, it would be too easy for the Chronicle or Bellesiles’s department chair to check the facts with “Ernesto” and with Joe, Bellesiles’s teaching assistant. Yet some things reported by Bellesiles in the Chronicle appear to be false: the term he says he taught Military History is inconsistent with CCSU’s website, and the facts of “Javier’s” Army service and death in Iraq do not match any deaths reported by the Department of Defense for soldiers from any US state or territory.

And note that Bellesiles opens his Chronicle article with a warning that many military stories can’t be trusted, even eyewitness ones. Is this his sly way of warning us that he doesn’t fully trust “Ernesto’s” account himself or that Bellesiles is telling us a tall tale? For his sake, I hope not.

Late Tuesday night, F.A. Hayek’s “Road to Serfdom” is the #1 Bestseller on Amazon (this afternoon I think it was ranked about 200-300). There’s a reason: the book was the subject of Glenn Beck’s show today.

Sometimes it’s hard to figure out Glenn Beck. One day he is (ridiculously) calling Cass Sunstein “the most dangerous man in America.” Another day he is teaching his audience about Hayek’s “Road to Serfdom.” Go figure.

BTW, Hayek once lived in the same building in which I have an apartment (without searching old Chicago phone books, I can’t determine which apartment he occupied).

Eugene [Volokh] quotes from an editor at the New Press who is peddling the ridiculous notion that [Michael] Bellesiles was a victim of an NRA conspiracy instead of someone who destroyed his own career by writing a book (Arming America) that did not hold up when some of us checked his evidence, including work based on hundreds of non-existent documents.

The idea that the NRA had anything substantial to do with the Bellesiles case is utter nonsense.

I have tried to think what I had ever heard about NRA involvement in the Bellesiles case. [This is all I came up with:]

1. Before the book came out, Charlton Heston criticized it in a column in an NRA magazine (after Heston had read an Economist article on the forthcoming book). Bellesiles more than effectively responded to Heston with a direct assault on the NRA, enlisting several dozen scholars for his public letter sent to the NRA.

2. Much later Clayton Cramer asked the NRA for a small travel grant to check Bellesiles’s sources in Eastern libraries and he was turned down.

3. Two years into the dispute, when it was nearly over, I read about a Senator attacking Bellesiles in a speech at the NRA convention in Atlanta. He appeared to be relying on (and seconding) news reports in the mainstream press.

4. Other than a review authored by Cramer in Shotgun News and some additional very derivative news articles updating members on developments in the press, that’s all I remember seeing or hearing from the NRA over the 2-3 years of the dispute.

I didn’t regularly see what the NRA sent to members and I doubt that any of the other relevant academics or administrators did either. If the NRA were involved in the Bellesiles affair in any significant way, I would have heard something about it.

Just what is it that the NRA is supposed to have done when it wouldn’t fund — even modestly – Clayton Cramer’s researching sources in the book?

And what is the process by which the NRA influenced the History Chair at Emory and Emory’s Provost to institute a formal investigation, or influenced Bellesiles’s colleagues at Emory to find against him, or influenced the outside panel to find against him, including Laurel Ulrich and Stanley Katz (a signatory to Bellesiles’ anti-NRA letter), or influenced the Provost at Columbia to instigate a review of the Bancroft Prize, or influenced me, or influenced Robert Churchill, or influenced Eric Monkkonen, or influenced the Wm & Mary Q. reviewers, including Randy Roth and Gloria Main?

From what I’ve seen from afar, the NRA mostly concentrates on three things: raising money, publishing magazines, and lobbying Congress.

The real question here is why the NRA mostly stayed out of an inquiry in which people with no knowledge of the dispute just assume they must have had a nontrivial role.

After the Bellesiles affair was over, I asked a law professor who had in the past received funding from the NRA why the NRA was so savvy to stay out of it and let the academics handle it in the normal way. The answer I got is that the NRA wasn’t savvy so much as it is suspicious of academics, whom they neither understand nor trust. If the NRA pays for something, they want to control the message — and most academics won’t take money on that basis.

Spreading patently ridiculous NRA conspiracy stories, as the New Press editor is doing, is irresponsible and frankly ahistorical. If the editor is honest, he or she will look into the basis for her claim and correct her misstatement.

It is ironic that a historian whose book spread unsupported and untrue stories about early America is now defended by an editor at the New Press who is spreading unsupported and untrue stories about the dispute over that book.

As we discovered in 2000, some people are incredibly gullible when they really, really want to believe.

UPDATE: BTW, here is part of the conclusion to my 2002 Yale review of the book:

Arming America is an impressive book, especially to those not versed in the materials that Bellesiles wrote about. It is extremely well-written for a book that covers so many apparent specifics of gun ownership and use. Superb historians praised it on its release. Yet even from the beginning,
there were those who found disturbing differences between Arming America and its sources. As time has passed and other scholars have entered the debate, these errors—which once looked like such serious
defects that they could not be true—have been confirmed. . . .

The book and the scandal it generated are hard to understand. How could Bellesiles count guns in about a hundred Providence wills that never existed, count guns in San Francisco County inventories that were
apparently destroyed in 1906, report national means that are mathematically impossible, change the condition of guns in a way that fits his thesis, misreport the counts of guns in censuses or militia reports, have over a 60% error rate in finding guns in Vermont estates, and have a 100% error rate in
finding homicide cases in the Plymouth records he cites? We may never know the truth of why or how Arming America made such basic errors, but make them it did.

As scholars, we must content ourselves with correcting errors and searching for the realities of gun ownership, use, and social meaning. Beyond that, we might try to figure out how to avoid a repetition of this unfortunate episode.

Shortly after midnight ET on Sunday night / Monday morning, the Dow futures are up 254 points, while S+P 500 futures are up 31 points and NASDAQ up 51 points.

That’s a lot for overnight futures.

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about what liberals had learned from the Federalist Society and about the liberal American Constitution Society trying to copy its methods and success.

Years ago, I asked an administrator at the Federalist Society whether Kagan’s speech had been recorded and he said that he didn’t think so.

UPDATE: In a 2009 interview, Elena Kagan makes her praise for the Federalist Society sound almost like an afterthought, rather than her opening statement:

MSNBC, partially quoting an NPR interview: While at Harvard, received a standing ovation from the conservative Federalist Society. “I sort of looked out at them, and I said, ‘You are not my people, and everyone laughed. And then I said, ‘But I love the Federalist Society, and I think that that’s when I got a standing ovation.” (NPR interview, 12/22/09)

I remember at the time being struck by the boldness and seemingly genuine praise of her exclamation, “I LOVE the Federalist Society!” Yet I was wondering if it was just pandering until she uttered the line about the Federalists not being her people — a qualification necessary for her praise to be credible to me.

Too bad there’s probably no tape. Memories are notoriously imperfect.

[UPDATE: I checked my recollection with a Federalist officer and law professor present on the occasion and he remembered it exactly as I remember it: Kagan opened with "I LOVE the Federalist Society! "I LOVE the Federalist Society!" She followed with a statement that "you are not my people."]

CNN reports:

The radical Islamic Web site Revolutionmuslim.com is going after the creators of the TV cartoon series “South Park” after an episode last week included an image of the Prophet Mohammed in disguise. . . .

On Sunday, Revolutionmuslim.com posted an entry that included a warning to South Park creators Trey Parker and Matt Stone that they risk violent retribution – after the 200th episode last week included a satirical discussion about whether an image of the prophet could be shown. In the end, he is portrayed disguised in a bear suit.

The posting on Revolutionmuslim.com says: “We have to warn Matt and Trey that what they are doing is stupid and they will probably wind up like Theo Van Gogh for airing this show. This is not a threat, but a warning of the reality of what will likely happen to them.”

. . . The posting on Revolutionmuslim.com features a graphic photograph of Van Gogh with his throat cut and a dagger in his chest.

The entry on Revolutionmuslim.com goes on to advise readers:

“You can contact them [the makers of South Park], or pay Comedy Central or their own company a visit at these addresses …” before listing Comedy Central’s New York address, and the Los Angeles, California, address of Parker and Sloane’s production company. . . .

Over still photographs of Parker, Stone, van Gogh and others, the Web site runs audio of a sermon by the radical U.S.-born preacher Anwar al-Awlaki, who is now in hiding in Yemen. The sermon, recorded some time ago, talks about assassinating those who have “defamed” the Prophet Mohammed – citing one religious authority as saying “Harming Allah and his messenger is a reason to encourage Muslims to kill whoever does that.” . . .

The clip ends with a warning on a graphic directed at Parker and Stone, saying “The Dust Will Never Settle Down.”

Though such a purported warning would meet the requirements for a “threat” under some cases, I suspect that some courts would not go so far, especially for religiously or politically motivated speech. It’s a close case.

UPDATE: Here is the South Park episode.

I haven’t watched the episode yet, but if a cartoon depicts Mohammed in a bear costume, would the depiction look any different if they had instead depicted me in a bear costume? If all you can see is a full body bear costume, what’s the difference?

On the nature of threats, in my 1984 article, Unraveling the Paradox of Blackmail, I had a footnote that mentioned some cases involving indirect threats:

Under most statutes the threat may be communicated in any fashion, oral or written, explicitly or by innuendo. See Cape v. United States, 283 F.2d 430 (9th Cir.1960) (threat of damage to property was made merely by mentioning troubles that other contractors had had); People v. Massengale, 10 Cal.App.3d 689, 89 Cal.Rptr. 237 (1970) (no explicit threat was made, though behavior was menacing in obtaining contracts from elderly women to trim trees); People v. Oppenheimer, 209 Cal.App.2d 413, 26 Cal.Rptr. 18 (1962) (prisoner’s inquiry in a letter whether judge’s windows were insured constituted threat within extortion statutes, where threats were coupled with a demand that the judge pay the fines the prisoner had incurred); Iozzi v. State, 5 Md.App. 415, 247 A.2d 758 (1968) (threat was conveyed by pointing out what happened to another business, which had been bombed); . . . 31 Am.Jur.2d Extortion, Blackmail, and Threats § 10, at 907-08.

2D UPDATE: After posting, I edited the CNN excerpt for length.

Kudos to President Obama for agreeing to open up some areas for off-shore drilling (though not nearly as much as we need). This appears to be a significant step in the right direction. In the summer of 2008, candidate Obama hinted that he might be willing to do this, but by inauguration last year he was not saying much that would give one hope for change on this issue.

One must still be cautious about whether there has been real change: the proof will come in the actual granting of permits to drill and open up new wells. I remember advocates of strict gun control arguing that “restrictive licensing” was more effective than a complete ban because restrictive licensing seemed more open to gun ownership or carrying, but in practice almost no one could get a permit. On drilling, time will tell.

UPDATE: According to Robert Costa, Sen. Bob Bennett says that the Administration’s openness on drilling is a sham:

While the administration may act like it is moving to the political center on energy, Bennett says that “tucked away in the language of its policy are countless actions that make it all the more difficult” for exploration. “Just look at what’s happening in Utah,” he says. “I’m trying to push Secretary Salazar in our direction. He keeps telling us that the administration is interested in natural gas, yet there is always some regulatory or legal hang-up that’s cited to keep anything from moving forward. They’re not serious about this. They want to implement onerous regulations. Same goes for coastal exploration.”

Megan McArdle has a good post on Congress’s decision to hold hearings about corporations’ disclosing their charges against earnings based on estimates of health care costs:

The Democrats, however, seem to believe that Generally Accepted Accounting Principles are some sort of conspiracy against Obamacare, and all that is good and right in America.

Here’s the story: one of the provisions in the new health care law forces companies to treat the current subsidies for retiree health benefits as taxable income. This strikes me as dumb policy; there’s not much point in giving someone a subsidy, and then taxing it back, unless you just like doing extra paperwork. And since the total cost of the subsidy, and any implied tax subsidy, is still less than we pay for an average Medicare Part D beneficiary, we may simply be encouraging companies to dump their retiree benefits and put everyone into Part D, costing us taxpayers extra money.

But this is neither here nor there, because Congress already did it. And now a bunch of companies with generous retiree drug benefits have announced that they are taking large charges to reflect the cost of the change in the tax law.

Henry Waxman thinks that’s mean, and he’s summoning the heads of those companies to Washington to explain themselves. It’s not clear what they’re supposed to explain. What they did is required by GAAP. And I’ve watched congressional hearings. There’s no chance that four CEO’s are going to explain the accounting code to the fine folks in Congress; explaining how to boil water would challenge the format.

Fair enough. But I’ll bet that there will both a few moments of effective Congressional demagoguing and a few moments when the corporate officials are successful in depicting that the hearings are a farce and that corporate accounting is a lot more sensible than government accounting.

Why bring in these corporate officials and ask them questions, when the members of Congress must know they won’t like some of the answers? I think the real reason for announcing the hearings is to intimidate other firms who have not yet taken a charge-off to get them to make only a small one — or none at all. These hearings, coupled with the phone calls from the White House complaining to the corporations about their disclosures, seem part of an effort to remind corporate America that their actions are not viewed positively by those who write and enforce the laws.

It’s not a threat, just a reminder . . . .

UPDATE: For some reason, the words of the eminent journalist Kent Brockman come to mind: “I, for one, welcome our new insect overlords.”

In the discussion of the McDonald case a few weeks ago, I posted a link to Philip Hamburger’s manuscript, Privileges or Immunities. His forthcoming article, which will be published by the Northwestern Univ. Law Review, is now online in a version that may be cited and quoted.

At RealClearPolitics, Thomas Sowell writes ominously about the political future:

The corrupt manner in which this massive legislation was rammed through Congress, without any of the committee hearings or extended debates that most landmark legislation has had, has provided a roadmap for pushing through more such sweeping legislation in utter defiance of what the public wants.

Too many critics of the Obama administration have assumed that its arrogant disregard of the voting public will spell political suicide for Congressional Democrats and for the President himself. But that is far from certain.

True, President Obama’s approval numbers in the polls have fallen below 50 percent, and that of Congress is down around 10 percent. But nobody votes for Congress as a whole, and the President will not be on the ballot until 2012.

They say that, in politics, overnight is a lifetime. Just last month, it was said that the election of Scott Brown to the Senate from Massachusetts doomed the health care bill. Now some of the same people are saying that passing the health care bill will doom the administration and the Democrats’ control of Congress. As an old song said, “It ain’t necessarily so.”

The voters will have had no experience with the actual, concrete effect of the government takeover of medical care at the time of either the 2010 Congressional elections or the 2012 Presidential elections. All they will have will be conflicting rhetoric– and you can depend on the mainstream media to go along with the rhetoric of those who passed this medical care bill.

The ruthless and corrupt way this bill was forced through Congress on a party-line vote, and in defiance of public opinion, provides a road map for how other “historic” changes can be imposed by Obama, Pelosi and Reid.

What will it matter if Obama’s current approval rating is below 50 percent among the current voting public, if he can ram through new legislation to create millions of new voters by granting citizenship to illegal immigrants? That can be enough to make him a two-term President, who can appoint enough Supreme Court justices to rubber-stamp further extensions of his power.

When all these newly minted citizens are rounded up on election night by ethnic organization activists and labor union supporters of the administration, that may be enough to salvage the Democrats’ control of Congress as well.

The last opportunity that current American citizens may have to determine who will control Congress may well be the election in November of this year. Off-year elections don’t usually bring out as many voters as Presidential election years. But the 2010 election may be the last chance to halt the dismantling of America. It can be the point of no return.

While I don’t share Sowell’s seeming hostility to an immigration bill, I do share his feeling that the current trend toward the Republicans may well stall out without their retaking the House or the Senate in the fall.