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Does a Move To Greater Internationalism Jeopardize American Free Speech Values?

Well, let's listen to Yale Law School Dean Harold Koh, now nominated to be the Legal Advisor to the State Department, in his On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003):

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of "margin of appreciation," familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

Good to hear that American free speech tradition isn't "too deeply unsettling to world order." But wait -- check out the footnote following this paragraph:

See generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher & David W. Leebron, Human Rights 564 (1999). Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C.

And what is this "transnationalist approach" that can help "moderate these conflicts" caused by American constitutional protection for "hate speech ... disseminated over the Internet"? Here are the opening paragraphs of the discussion of "the transnationalist approach" is Part III.C:

What is transnational legal process? While most legal scholars agree that most nations obey most rules of international law most of the time, they disagree dramatically as to why they do so. As I have explained elsewhere, I believe that nations obey international law for a variety of reasons: power, self-interest, liberal theories, communitarian theories, and what I call "legal process" theories. While all of these approaches contribute to compliance with international law, the most overlooked determinant of compliance is what I call "vertical process": when international law norms are internalized into domestic legal systems through a variety of legal, political, and social channels and obeyed as domestic law. In the international realm, as in the domestic realm, most compliance with law comes from obedience, or norm-internalization, the process by which domestic legal systems incorporate international rules into domestic law or norms.

Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors -- namely, nation states, corporations, international organizations, and nongovernmental organizations -- interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.

In my view, "transnational legal process" is not simply an academic explanation of why nations do or do not comply with international law, but, more fundamentally, a bridging exercise between the worlds of international legal theory and practice. My time in government confirmed what I had suspected as a professor -- that too often, in the world of policymaking, those with ideas have no influence, while those with influence have no ideas. Decisionmakers react to crises, often without any theory of what they are trying to accomplish, and without time to consult academic literature, which, even when consulted, turns out to be so abstract and impenetrable that it cannot be applied to the problem at hand. On the other hand, activists too often agitate without a clear strategy regarding what pressure points they are trying to push or why they are trying to push them. Scholars have ideas, but often lack practical understanding of how to make them useful to either decisionmakers or activists.

And so it is with American exceptionalism. Like so many aspects of international relations, this phenomenon has generated a tragic triangle: Decisionmakers promote policy without theory; activists implement tactics without strategy; and scholars generate ideas without influence. If transnational legal process is to bridge this triangle, how can we use that concept to press our government to preserve its capacity for positive exceptionalism by avoiding the most negative features of American exceptionalism? Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global justice system; second, the rights of 9/11 detainees; and third, America's use of force in Iraq....

Maybe I'm missing something -- Prof. Koh's discussion of just how the Court can "moderate ... conflicts" between First Amendment law and foreign countries that disapprove of American free speech on the Internet is rather vague here. But it sounds to me quite a bit like the predictions that Prof. Peter Spiro, another internationalist legal scholar, made about how international norms could reduce the scope of American constitutional rights: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable. In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination."

In any case, I thought I'd note this, so you folks can read it and decide for yourselves. Thanks to Ed Whelan (National Review Online) for the pointer.

Andrew Schoppe (mail):
I wonder what Professor Koh might think about this for a transnationalist approach to the regulation of speech?

The United Nations' Universal Declaration of Human Rights, Article 19.
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
4.7.2009 6:24pm
common sense (www):
If, per Posner's earlier post, this is just another justification for a broad liberal agenda, I don't find your conclusion too surprising. What will matter in the end is who wins election. They will get to push their agenda, and the most effective methods of doing so will win out. I don't think this method will be particularly effective. I think, if a judge is so inclined, there are other ways to restrict the First Amendment through the application of equal protection. What matters is a strong defense of the First Amendment, regardless of the threat.
4.7.2009 6:25pm
Zywotkowitz (mail):
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Durban II will get rid of that one.
4.7.2009 6:51pm
cboldt (mail):
As with the need for US standard of living to decline, in order that the world become "more level," so too with the power citizens have been able to assert over the government must be reduced. Of course, this is not something that the people will consciously surrender, and so it is up to educational institutions and a slow progression to accomplish the leveling.
.
Whether the time for Koh is today, or 10 years from now, or 50 years from now, American adoption of a transnational point of view is inevitable. National patriotism, national boundaries, etc. are to be weakened. In a world where all are equal, there is no point in differentiation.
4.7.2009 6:52pm
einhverfr (mail) (www):
Actually, this is a concern I have had for a while. If treaties are considered equal to the Constitution under the Supremacy Clause, then it seems to my mind that treaties could be used to institute essentially a de facto Constitutional Amendment.

This is one reason to be concerned about secret treaties, like the ACTA which is currently being discussed.
4.7.2009 6:53pm
Andrew Schoppe (mail):
Durban II may indeed, Zywotkowitz, but I'm sure the crabcakes will be delectable.
4.7.2009 7:00pm
Oren:

If treaties are considered equal to the Constitution under the Supremacy Clause

Reid v. Covert expressly debunks such an absurd idea.

The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the Supremacy Clause of the Constitution, declares:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .


There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [p17] War, would remain in effect. [n31] It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. [n32] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.
4.7.2009 7:07pm
Oren:
See also for an even earlier (1890) discussion of the same principle. The Senate may not do by treaty anything that is forbidden by the Constitution.
4.7.2009 7:08pm
PersonFromPorlock:
Interesting that there's nothing in the quote from Koh that shows any awareness of a natural rights tradition.
4.7.2009 7:21pm
CDR D (mail):
Good on you, Oren.

There are some even earlier than Geoffroy v. Riggs:

In the case of New Orleans v. U.S. (10 Pet. 662, 1836), the Court said that Congress cannot by legislation enlarge the Federal jurisdiction nor can it be enlarged under the treaty-making power.


In Doe v. Braden (16 How. 635, 1853), the Court indicated that the Constitution was superior to a treaty when it stated: The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.

In The Cherokee Tobacco Case (11 Wall.616, 620-621, 1870), the Supreme Court stated: It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government.
4.7.2009 7:24pm
byomtov (mail):
For some insight as to the accuracy of Whelan's writings about Koh, see here.

It seems that Whelan is not entirely trustworthy on the subject of Koh.
4.7.2009 7:30pm
Harry Eagar (mail):
Oren,I am old enough to remember that the Nixon administration contended that neither the national nor local governments could remove legal penalties regarding marijuana because of treaty commitments.
4.7.2009 8:24pm
Leo Marvin (mail):
How can the Stanford Law Review and the Dean of Yale Law School not have problem with this sentence,?

"So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, libel, commercial speech, and publication of national security information."
4.7.2009 8:51pm
Constantin:
Could Koh, or anybody else, explain rationale for using French law on the death penalty, for example, and not sharia law for stoning gay people or women without veils? Without resorting to, "well, of course we wouldn't import sharia"?
4.7.2009 9:21pm
Cornellian (mail):
I think other countries ought to raise the protection for free speech to our First Amendment level or something close to it. I see no reason to reduce First Amendment protections to the level of other countries. However, for those countries that are democracies, if they choose to stay with a lower level of protection for speech (e.g. Britain and libel law) that is, of course, their call to make.

Could Koh, or anybody else, explain rationale for using French law on the death penalty, for example, and not sharia law for stoning gay people or women without veils? Without resorting to, "well, of course we wouldn't import sharia"?

Not that I'm in favor of relying on French law for death penalty issues, but if I had to draw a distinction between relying on French law and relying on Sharia law, I'd point out that France is a Western democracy with a great deal of shared history and values with America whereas countries applying sharia law are not.
4.7.2009 9:58pm
DangerMouse:
Not that I'm in favor of relying on French law for death penalty issues, but if I had to draw a distinction between relying on French law and relying on Sharia law, I'd point out that France is a Western democracy with a great deal of shared history and values with America whereas countries applying sharia law are not.

Circular reasoning. If you're looking to another country only because that country's history and values mirror those of the United States, it makes no sense to look to that other country when looking at the United States is a better approach. Why look outside the US at all?

It makes you think that the entire point is to look at countries that have different values from the American populace.
4.7.2009 10:18pm
Frater Plotter:
I was under the impression that the purpose of having a military, and indeed the purpose of having a Federal government at all, was to prevent foreign powers from imposing their laws upon us ....
4.7.2009 10:19pm
DangerMouse:
As far as the 1st amendment goes, color me skeptical that Koh gives a crap about it at all. Right now, if you read the comments at blogs like Daily Kos or Oliver Willis, they're calling for Bill O'Reilly, Glenn Beck and Rush Limbaugh to be arrested for their "hate speech" because 3 cops were murdered by some nutjob who was delusional. To them, "hate speech" is conservative political speech that they disagree with, not subject to the protections of the 1st Amendment. Libs' commitment to free speech only extends to their own. Campus speech codes are plenty evidence of that as well.
4.7.2009 10:23pm
Cornellian (mail):
Not that I'm in favor of relying on French law for death penalty issues, but if I had to draw a distinction between relying on French law and relying on Sharia law, I'd point out that France is a Western democracy with a great deal of shared history and values with America whereas countries applying sharia law are not.

Circular reasoning. If you're looking to another country only because that country's history and values mirror those of the United States, it makes no sense to look to that other country when looking at the United States is a better approach. Why look outside the US at all?


Not at all circular. I said I did NOT want to rely on French law, but if I had to distinguish French law from Sharia, that's what I would say. Also, while generally one should not look outside the U.S. one could conceive of circumstances where it might be appropriate to do so, such as where a particular law or legal concept in U.S. law was imported from French (or at least Continental European) law and U.S. precedents were ambiguous. I would expect such situations to be extremely rare these days, but it's not impossible that such a situation might arise.
4.7.2009 10:40pm
A. Zarkov (mail):
"Good to hear that American free speech tradition isn't "too deeply unsettling to world order."

What if it were deeply unsettling to the world order? What then? Are we obligated to make other countries happy at the expense of our freedom?

This is a good example of the anti-American opinions found in academia. Our elite universities are used to shutting people up with speech codes, so naturally Koh is not going to be particularly sensitive about curtailing the 1A.
4.7.2009 10:41pm
Cornellian (mail):
"Good to hear that American free speech tradition isn't "too deeply unsettling to world order."

I'd like American free speech tradition to be "deeply unsettling to world order." The world order on this issue cries out to be unsettled, the deeper the better, at least in most of the world. Fortunately we have two might weapons of technology to help us out on that front, the Internet and cell phone video, but we've still got a long way to go.
4.7.2009 10:57pm
RPT (mail):
Clearly Ed Whelan and Hans Bader have been assigned the job of "official critics" to the Harold Koh and Eric Holder watch. One can expect a new theme every week.
4.8.2009 1:10am
Brian G (mail) (www):
Free Speech is such an American concept and as such I am sure Koh gives it little value.

By the way, I'll take the French death penalty laws and Belgium gay marriage laws in exchange for the Saudi abortion laws and ban on female drivers. Deal?
4.8.2009 2:04am
donaldk2 (mail):
A. Zarkov: The line you quoted is sarcasm.
4.8.2009 3:21am
David M. Nieporent (www):
For some insight as to the accuracy of Whelan's writings about Koh, see here.

It seems that Whelan is not entirely trustworthy on the subject of Koh.
Actually, it seems that publius is not entirely trustworthy on the subject of Whelan. Publius accuses Whelan of misrepresenting Koh, but he does so only by misrepresenting Whelan.

He quotes Whelan as saying:
Distinguishing between domestic and international law makes no sense [Koh argues], since “[d]omestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature.”
He then argues that Koh didn't actually say the bolded part, and as evidence points to this quote from Koh:
My point is that as international legal academics, we must start treating transnational law as its own category. Domestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature. For example, is the metric system fundamentally national or international?
But for some inexplicable reason, publius highlights the first sentence -- which isn't what Whelan referred to -- rather than the second sentence -- which is what Whelan referred to, and which does say exactly what Whelan claimed.


Further, publius is rather disingenuous; he keeps trying to make a big deal of the fact that much of what Koh writes is descriptive rather than normative. Well, so what? Some of what Koh writes is normative, and it's those things that are being criticized. The fact that Koh writes many unobjectionable things does not somehow insulate his objectionable statements from criticism. (And, of course, even a descriptive statement can be objectionable if it's, well, incorrect.)
4.8.2009 5:57am
A. Zarkov (mail):
donaldk2:

"A. Zarkov: The line you quoted is sarcasm."

I realize that, but unfortunately many people in the US seem to take those sentiments seriously. In particular members of our current administration who run around the world making negative remarks about their own country. Of course Bush did it too. For example his July 2003 speech at Gorey Island, Senegal. This all has to do with being overly concerned about what foreigners think about us. If foreigners don't like then the least they should do is not immigrate here and expect us to accommodate them.
4.8.2009 6:43am
Richard Aubrey (mail):
This isn't going to come down in one big chunk. It never does.
Bits and pieces.
Thousand cuts.
Lilliputian threads.
Sure, you'll have the 1A on your side and it will only cost you your retirement fund to win in court.
No problem.
These guys are patient and they never stop.
4.8.2009 7:27am
sputnik (mail):
I am afraid of the world currency and FEMA concentration camps as well.


The only upside to that will be the i...s like constantin will be removed from the sane population.

Question:
Do you think we will be forced to learn French and/or Arabic too?
4.8.2009 8:19am
Cornellian (mail):
Do you think we will be forced to learn French and/or Arabic too?

Not that learning French would be such a bad thing. The Founders found French thinkers to be quite useful in designing our Republic.
4.8.2009 9:02am
martinned (mail) (www):
Not that learning French would be such a bad thing. The Founders found French thinkers to be quite useful in designing our Republic.

Il pourrait arriver que la loi, qui est en même temps clairvoyante et aveugle, serait, en de certains cas, trop rigoureuse. Mais les juges de la nation ne sont, comme
nous avons dit, que la bouche qui prononce les paroles de la loi; des êtres inanimés qui n'en peuvent modérer ni la force ni la rigueur.
4.8.2009 9:12am
byomtov (mail):
David Nieporent,

So mischaracterizing Koh's statement, as Whelan did in the bolded sentence, is perfectly OK, and it's wrong for publius to call him on it?

Read the second paragraph you quote. It doesn't say it makes no sense to distinguish between domestic and international law, as Whelan falsely claims.

It says that there is law - transnational law - that fits into neither category. That doesn't mean the categories are meaningless.

Further, publius is rather disingenuous; he keeps trying to make a big deal of the fact that much of what Koh writes is descriptive rather than normative.

The actual quote is clearly descriptive.

Look, as RPT says, Whelan and Bader are simply trying to do a political hit on Koh. Next I suppose they'll be joining Bachmann's psychotic fantasy crusade against the non-existent plan to replace the dollar with an international currency
4.8.2009 11:53am
Michael Ejercito (mail) (www):
Jeff Jacoby published an article that refers to the genocide of the Armenians.

How does Turkish law apply?


Could Koh, or anybody else, explain rationale for using French law on the death penalty, for example, and not sharia law for stoning gay people or women without veils?

There is no rationale aside from a cost/benefit analysis.

Right now, if you read the comments at blogs like Daily Kos or Oliver Willis, they're calling for Bill O'Reilly, Glenn Beck and Rush Limbaugh to be arrested for their "hate speech" because 3 cops were murdered by some nutjob who was delusional.

Can you link to those comments?
4.8.2009 11:53am
Desiderius:
Whatever happened to the value of multiculturalism and diversity?
4.8.2009 1:09pm
Oren:

Sure, you'll have the 1A on your side and it will only cost you your retirement fund to win in court.

On the upshot, you'll make treble damages.
4.8.2009 2:12pm
Richard Aubrey (mail):
Oren
Double after the attorney fees, and I'll die early due to stress and rage.
However, win or not, others will see it and decide on discretion.
The tranzies win.
Although, come to think of it, who's going to pay me damages?
If a cop takes away my, say, Star of David sign because it's annoying Muslims--only happened in the UK and Canada and Germany so far--who do I sue and what do I get? My sign cost me thirty-nine cents worth of left-over art project materials.
If I'm thrown out of a school board meeting for objecting to PlayGay for A Week week in elementary school without parental notification, who do I sue? What would I get?
If I'm a teacher and I have a US flag and a Gadsden flag on my wall and I get disciplined by the admin...?
If I'm thrown out of college for writing a paper favoring CCW, ...? My damages would be three times the pro-rated tuition and my fees would be treble that.
4.8.2009 2:30pm
The Unbeliever:
Not that learning French would be such a bad thing. The Founders found French thinkers to be quite useful in designing our Republic.
To mangle a sentiment from Jonah Goldberg: sure, but what have they done for us lately?
4.8.2009 3:09pm
wfjag:

Frater Plotter:
I was under the impression that the purpose of having a military, and indeed the purpose of having a Federal government at all, was to prevent foreign powers from imposing their laws upon us ....

That was when 2 oceans between us and most other countries (including all the powerful ones) meant something. Today, ABMs are considered too provocative even when nut-jobs keep launching ICBMs that keep going further and further, and landing closer and closer to the US (and, our response is to refer the matter to the UN Security Counsel for a fierce discussion about not being too provocative by condemning the launch).
4.8.2009 5:04pm
Oren:

and, our response is to refer the matter to the UN Security Counsel for a fierce discussion about not being too provocative by condemning the launch

As opposed to starting a war that will destroy a major US trading partner and alienate another? It must be hard to gamble with the lives of 500,000 people you've never met -- how do you manage?

We have a military to defend our country from having external influences force themselves on us, not to prevent us from changing our government in whatever way we see fit.
4.8.2009 5:19pm
David M. Nieporent (www):
So mischaracterizing Koh's statement, as Whelan did in the bolded sentence, is perfectly OK, and it's wrong for publius to call him on it?
No, mischaracterizing Koh's statement is not OK, and it would not be wrong for publius to call him on it... if Whelan had done that. But he didn't.

Read the second paragraph you quote. It doesn't say it makes no sense to distinguish between domestic and international law, as Whelan falsely claims.
Yeah, it kind of does. It says: "Domestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature." The distinction between that and not making sense to distinguish between domestic and international is...?

And assuming for the sake of argument that you think there's a distinction, does that mean that Whelan is dishonest, or that you and Whelan interpret the statements differently?


The actual quote is clearly descriptive.
If I go on for fifty pages explaining the French health care system and how it differs from ours, and then I write one sentence saying, "And so we ought to adopt their system," does that mean that virtually my whole essay is "descriptive" and no critic can address any sentence in there other than the last one because they're all "descriptive"? Of course not. The descriptive and normative statements merge together in my example. And that's what Koh does. He doesn't just say "Here's what happens"; he approves of it.
4.8.2009 5:51pm
wfjag:

As opposed to starting a war that will destroy a major US trading partner and alienate another? It must be hard to gamble with the lives of 500,000 people you've never met -- how do you manage?

We have a military to defend our country from having external influences force themselves on us, not to prevent us from changing our government in whatever way we see fit.

What a leap of rhetoric! Exactly how does developing an ABM system which protects the US from blackmail by every lunie who gets his hands on a ballistic missile and a chem, bio or nuke warhead (the gist of my comment), start a war? I realize the the current Speaker of the House opposes developing an ABM system, but, I wonder if her beliefs will change (or those of her constituents will change) as the missiles keep landing closer? Courage is always easier from afar. And, ABM systems attack missiles during the boost phase, AND during flight AND during re-entry. A re-entry attack system -- the Patriot II -- has been provided the Japanese.

It appears, however, the the President's promise of "take appropriate steps to let North Korea know that it can't threaten the safety and security of other countries with impunity" is, as I said "is to refer the matter to the UN Security Counsel for a fierce discussion about not being too provocative by condemning the launch."

And, how does developing an ABM system "prevent us from changing our government in whatever way we see fit"? Preservation of life appears to be necessary to governmental change.

Your assertion as to the military's role is also incorrect as a matter of law. The military exists to uphold and defend the Constitution and laws of the United States against all enemies, foreign and domestic. Accordingly, it does not exist only to deal with foreign enemies.
4.9.2009 8:50am
Oren:

If a cop takes away my, say, Star of David sign because it's annoying Muslims--only happened in the UK and Canada and Germany so far--who do I sue and what do I get?

Sue the dept, they will give you a $50k settlement offer and consent decree not to do it again, or else you will go to court and get your attorney fees plus a substantial damage reward. The term "well settled law" isn't quite sufficient to describe your hypo.


If I'm thrown out of a school board meeting for objecting to PlayGay for A Week week in elementary school without parental notification, who do I sue? What would I get?

Nothing, because parents do not have a veto over school curricula.


If I'm a teacher and I have a US flag and a Gadsden flag on my wall and I get disciplined by the admin...?

That's between you, the school district and maybe the teacher's union. Check your contract.


If I'm thrown out of college for writing a paper favoring CCW, ...? My damages would be three times the pro-rated tuition and my fees would be treble that.

Plus an injunction ordering the school to readmit you.


I realize the the current Speaker of the House opposes developing an ABM system, but, I wonder if her beliefs will change (or those of her constituents will change) as the missiles keep landing closer? Courage is always easier from afar.

Actually, the current missiles can hit HI, CA, OR and WA, no doubt causing all the citizens of those states to change their votes to candidates supporting ABM.

As a personal matter, I'm all for an ABM system that is proven and cost-effective. When we see some proof that our current prototypes can meet even the most basic test (let's say, shoot down a test missile that is launched without a transponder and at a time and place not known in advance to the missile crew) we should deploy such a system.


Your assertion as to the military's role is also incorrect as a matter of law. The military exists to uphold and defend the Constitution and laws of the United States against all enemies, foreign and domestic. Accordingly, it does not exist only to deal with foreign enemies.

Enemies implies violence. The military was not intended to prevent the peaceful evolution of the US Constitution by the normal political process that has functioned for more than 200 years.
4.9.2009 9:13am
Richard Aubrey (mail):
Oren.

(If a cop takes away my, say, Star of David sign because it's annoying Muslims--only happened in the UK and Canada and Germany so far--who do I sue and what do I get?


Sue the dept, they will give you a $50k settlement offer and consent decree not to do it again, or else you will go to court and get your attorney fees plus a substantial damage reward. The term "well settled law" isn't quite sufficient to describe your hypo. )



You missed the point. If we have internationalized legal systems, I don't get to sue.

As to the school board, I am not talking about vetoing a course, but about being thrown out of a school board meeting where the public is allowed to speak based on my content. Speech, not vetoing course offerings.

College and CCW. See internationalized law, which was the original subject.

You're talking about our current system at its ideal best. The rest of us are talking about what happens when we start absorbing other nations' views of law. Try to keep up.
4.9.2009 2:44pm
wfjag:

As a personal matter, I'm all for an ABM system that is proven and cost-effective. When we see some proof that our current prototypes can meet even the most basic test (let's say, shoot down a test missile that is launched without a transponder and at a time and place not known in advance to the missile crew) we should deploy such a system.

Did the satellite shoot-down qualify in your book?

It seems like you want a fully-functioning system without design, re-design, consideration of competing designs, proto-typing, and testing. Even your computer doesn't meet those standards -- and never has.

And, exactly what is the yard-stick for a cost-effective ABM? Number of dead prevented? Or, is it number of dead who are within ___ miles of where you and your family live?

I don't disagree that the monetary costs of developing an ABM are high -- almost the costs of bailing out a few big banks. That is always true when primary R &D costs are included in the total costs of a project. However, like the "Moon Race" -- also arguably a boondoogle -- there are a lot of spin off technologies that are developed, but, which are not figured in as off-setting benefits. What good did it do to send men to the moon? I'm not sure. But, the development of better weather forecasting saves $Billions a year in avoided crop losses.

Using the approach you suggest, we should end all funding of all STEM research and all aid to higher education in STEM subjects, since primary research doesn't pay for itself -- till someone figures out a use for the findings. The Japanese have been very successful by exploiting R &D results that were done in other countries. It was obviously cheaper for Japan to buy a Patriot II ABM system from the US than to develop their own.


The military was not intended to prevent the peaceful evolution of the US Constitution by the normal political process that has functioned for more than 200 years.

It's been peaceful, as long as you overlook events like the Whiskey Rebellion, that unpleasantness between the states (1861 to 1865), Reconstruction, the Pullman Riots and most other labor unrest, inner-city rioting, the anti-Vietnam War movement, a considerable amount of the civil rights movement, and suppression of the militia movement in the 1980s and 1990s. That Jim Jones, Waco and Oklahoma City and similar events have generally soured Americans on violent radicals at this time, looks to be more of a pause than a sea-change. For example, in Minnesota there are reports that young men of Somoli back-ground and young Americans who are Muslim converts are being sent to Somolia for terrorist training, with the idea of them eventually coming back to the US to carry out attacks. And, there are web sites that openly advocate physical attacks on various persons, their families and groups. Peaceful change is good. Just don't count on it remaining that way. Historically, the military and other armed groups have kept the peace, the peace has not maintained itself.
4.9.2009 2:56pm
Oren:

You missed the point. If we have internationalized legal systems, I don't get to sue.

As to the school board, I am not talking about vetoing a course, but about being thrown out of a school board meeting where the public is allowed to speak based on my content. Speech, not vetoing course offerings.

College and CCW. See internationalized law, which was the original subject.

You're talking about our current system at its ideal best. The rest of us are talking about what happens when we start absorbing other nations' views of law. Try to keep up.

(1) Can you point to anyone that is talking about removing the right of citizens to sue under something like S1983 (that bete-noir of liberals everywhere!)

(2) Deliberative bodies have always had nearly limitless powers, by their own rules, to run their internal affairs. "Open to the public" does not mean "Open to the public irrespective of the rules of this body". You have the right to free speech, you do not have the right to free speech on the floor of the Senate without that body's consent.

(3) FUD.

(4) Absorbing? What are we, a sponge?
4.9.2009 6:13pm
Oren:

Did the satellite shoot-down qualify in your book?

No, because the ABM crew had advanced notice of the test and additional information not likely to be shared by an adversary.


It seems like you want a fully-functioning system without design, re-design, consideration of competing designs, proto-typing, and testing. Even your computer doesn't meet those standards -- and never has.

No, but my computer cost $450 delivered to my door and came with a return policy. Tell you what, I'll agree to ANY missile-defense system where the contractor agrees to refund the US Congress our money if it doesn't perform to the specifications.


And, exactly what is the yard-stick for a cost-effective ABM? Number of dead prevented? Or, is it number of dead who are within ___ miles of where you and your family live?

Sum_a (Pa * Pai * Vda) / c > 1

where a indexes over all possibly attack possibilities.
Pa is the probability of such an attack
Pai is the probability of intercepting such an attack
Vda is the damage done by such an attack


However, like the "Moon Race" -- also arguably a boondoogle -- there are a lot of spin off technologies that are developed, but, which are not figured in as off-setting benefits. What good did it do to send men to the moon? I'm not sure. But, the development of better weather forecasting saves $Billions a year in avoided crop losses.

I will agree to any missile-defense system where the resulting technological achievements are declassified for use in general industry. As it is now, we spend billions and the next time some business wants to build something similar, they must re-engineer it from scratch.


Using the approach you suggest, we should end all funding of all STEM research and all aid to higher education in STEM subjects, since primary research doesn't pay for itself -- till someone figures out a use for the findings. The Japanese have been very successful by exploiting R &D results that were done in other countries. It was obviously cheaper for Japan to buy a Patriot II ABM system from the US than to develop their own.

STEM research is published in journals that everyone can read.
4.9.2009 6:21pm
Richard Aubrey (mail):
Oren.

See Koh. He thinks it's a good idea. One of the Supremes (Breyer, I think) said something like consulting, referring, or "giving a shout out" to other nations' laws.
The endless number of libs who keep saying that we should emulate this, that or the other legal doctrine of one or another country.
I know you'd like us to be quiet and ignore it until it's too late.
You might even win that one.
4.9.2009 6:25pm
Oren:
If anyone tells me we should emulate something or another, I will evaluate it on the merits. That's all that's required.
4.10.2009 10:53pm
Richard Aubrey (mail):
Oren.
So we're going from it isn't happening to it might be a good idea.
That's progress...backwards.
4.11.2009 8:04am
Oren:
So, the very fact that another country has adopted some idea is itself evidence that it's not a good one?

As a general matter, I'm dedicated to evaluated each argument on its merits and on its merits alone. If you proposed to me to eliminate the death penalty, I don't care what countries have or haven't but whether the balance of evidence suggests it's a good idea.
4.11.2009 8:55pm

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