[Eugene Volokh, 6:06 PM]
MORE NEWS: A source in the Washington University law school administration tells me that there's another meeting of the SBA on Monday, and that this might yield a different result. I very much hope that this will be so; I will certainly post any news that I learn.

 
[Eugene Volokh, 6:00 PM]
PRIVATE UNIVERSITIES: Reader Bob English asks:

[Would you] show the same outrage if a group of students at Liberty University, BYU, or Notre Dame were prevented from forming a pro-abortion-rights student organization[?] As far as I can tell from the web site, WUStL is a private university, so they should be free to set whatever conditions they want.

This is a good question; I do think that universities that have overt, clearly stated ideological or religious agendas should be cut more slack in creating the environment they wish (though even they can sometimes be rightly faulted for being too closed-minded). If Notre Dame bills itself as an overtly Catholic university, and enforces norms that aim at preserving that, I can respect that (again, within limits). Likewise if a hypothetical private Feminist Studies University chooses to set up rules that exclude non-feminist or anti-feminist groups from campus.

     But to my knowledge the Washington University School of Law does not bill itself as an ideologically or religiously focused institution; it tries to present itself as being open to a wide variety of views. According to an earlier FIRE press release, WUSL's 2002-2003 Parent's Handbook says that WUSL "is committed to the principles -- of freedom of religion and speech." Perhaps there's some qualifying language that says "but not for pro-life speech, except as we define it," or that more broadly indicates the school's perspective; but I doubt it.

     Likewise, if the Student Bar Association had billed itself from the start as being committed to particular political principles -- something that might well have stopped the school from giving it any special privileges that the SBA has -- I would be much more open to its decision. If the campus chapter of the ACLU decided to fund some groups but not others, that would be fine. But to my knowledge, the SBA at the law school claims to be an evenhanded, apolitical entity. Well, it's surely not behaving like one.

     So, yes, the law school and the SBA are legally free to do as they like; but we're free to condemn them for doing this. And for the reasons I mentioned above and below, I think there's ample grounds for condemning them.

 
[Eugene Volokh, 4:34 PM]
THE OUTRAGE AT THE WASHINGTON UNIVERSITY (ST. LOUIS) SCHOOL OF LAW: Many of you may have probably already heard accounts of the Washington University law school's student government denying funding to a pro-life group because its focus was supposedly "too narrow." The pro-life group, you see, was only concerned with opposing abortion and euthanasia, and the student government thought it should have also been opposed to the death penalty. I wonder: Would they have opposed a pro-choice group on the grounds that it was only focused on the choice to have an abortion, and not school choice or choice about whether to carry a gun? The ACLU and the Foundation for Individual Rights in Education just put out an open letter about this; I couldn't find the letter on either's Web site, so I quote it at the very end of this post.

     In any case, I e-mailed the contact for the student government group, and the contact for the pro-life group, just to see if there were more details. The former has not yet responded, the latter did, and was kind enough to permit me to post his answer. Here, then, are some details straight from the source -- obviously it's one side's take, but the other side has their chance to respond, and so far I've heard nothing that at all contradicts what the pro-life group is saying:

1. The Student Bar Association of Washington University School of Law, agents of the university, did not approve our group on several grounds. The following is a direct quote from Elliot Fr[ie]dman, President of SBA:

"1) The title of your organization did not represent adequately the goals and initiatives of the organization. By taking away the 'anti-death penalty' issue from your Constitution, several students felt that the organization was not touching on all possible Pro Life issues.

"2) If your group truly has the purpose they claim, they need to consider revamping the organization to encourage and facilitate discussion of the issues as a whole, and not simply the pro-life side of certain issues.

"3) The membership of the organization should be open to those students both subscribing to and disagreeing with the political viewpoint.

"To be honest, I truly believe that the catching issue was the narrowness of your group's interests and goals. SBA members felt, after a lengthy discussion, that your organization was very one-sided and did not address all issues involving pro-life."

2. The SBA By-laws on student organizations state the following requirements for recognition by the SBA: A constitution and by-laws, 10 members, a proposed budget, and approval by a majority of the SBA. . . .

3. Although the Dean has attempted to express his disagreement with the SBA decision, he has repeatedly stated that he respects the autonomy of SBA and will not overrule them. As of now, I cannot speak to whether the SBA will approve us. The administrators have done nothing but slap SBA on the wrists.

4. . . . [A]s you can tell from the answer to question #1, the SBA wants us to change our name, broaden our discussion (to include, among other things, the death penalty issue) and be more of a forum instead of the group we created. This is blatant view point discrimination and shows that SBA wants to tell groups what they can and cannot believe.

By the way, here are some student organizations that are listed on the law school's Web site; I assume most of them are recognized by the SBA, presumably because they aren't "too narrow," and because they do "encourage and facilitate discussion of the issues as a whole," "and not simply [one] side of certain issues":

• American Civil Liberties Union (ACLU)


• Asian American Law Students Association


• Black Law Students Association (BLSA)


• Federalist Society


• OUTLAW [described on their site as "an educational, political, and social alliance of law students interested in working with Washington University and the surrounding community towards fostering and maintaining an environment that is supportive, positive, and safe for individuals of sexual and gender diversity"]

Yup, looks like the student government is really applying an evenhanded, fair-minded test here. In any case, here's the open letter from the ACLU and FIRE:

AN OPEN LETTER FROM THE AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI AND THE FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION TO THE STUDENT BAR ASSOCIATION, WASHINGTON UNIVERSITY SCHOOL OF LAW, OCTOBER 11, 2002

Dear Members of the Student Bar Association,

We were both surprised and profoundly disappointed to learn of your most recent meeting, at which the Student Bar Association (SBA) left unchanged its decision not to recognize Law Students Pro-Life (LSPL) as a legitimate student group at Washington University School of Law (WUSL). We hoped that, with time and further thought, LSPL’s right to exist would become as clear to you as it is to all of the individuals and organizations that have opposed your decision. We will try one last time to persuade you to recognize LSPL and to reaffirm your commitment to tolerance, openness, and pluralism.

The right to private conscience is more than a constitutional right and an internationally recognized human right. It is also a moral principle upon which our entire system of liberty depends. By offering to recognize LSPL only if it modified its beliefs to suit principles that you found more to your liking, you were asking your fellow students to betray their deeply held beliefs as a precondition of enjoying the minimal rights of a recognized organization at WUSL. In short, you made their moral right to associate freely as a student group dependent upon their abandonment of their right to private conscience. No school that believes in freedom and human dignity could ask such a thing of its own students.

SBA has contended that LSPL's mission is "too narrow" to allow for recognition. Although the SBA and WUSL routinely recognize associations organized around group-identity and common interests such as golf, you have ruled that issues relating to reproductive rights are "narrow." In fact, issues related to reproductive rights are some of deepest and most divisive issues in our country, desperately in need of the sort of reasoned advocacy that produces significant debate. It is particularly strange for law students to argue that reproductive rights are a "narrow" issue. For example, you have recognized a student group organized around interests in the criminal law. Far more individuals will face reproductive choices than will face the system of criminal justice, and no one would consider issues of criminal justice "narrow." Anyone familiar with constitutional law knows that the debates and battles surrounding reproductive rights have transformed legal notions concerning control of one’s body, privacy, protest, freedom of religion, and freedom of speech. There is nothing narrow about LSPL, except your conception of it.

We are pleased that the administration of WUSL at least attempted to convince you that LSPL should be recognized. However, we do not agree that it is appropriate for them to place the autonomy of the SBA over the fundamental rights of LSPL students. Majority votes by agencies of power do not trump constitutional rights (and their moral principles), any more than they undo the moral right to legal equality. Civilized democracy includes rights so essential to liberty, dignity, fairness, and decency that we place them outside the power of elected government to vote them away. Civil liberties reflect, among other things, the moral necessity of restraint upon power.

Simply put, if you do not live up to your obligations to respect the deeply held beliefs and rights of your fellow students, you are acting outside your legitimate powers. The administration of WUSL may not and must not permit such an action to stand.

We hope that you--as law students and as citizens--understand that the ideals enshrined in the Bill of Rights are more than just regulations. They codify moral principles and rights that we, as a people, believe are inalienable. We ask you to act in the spirit of these essential moral principles and to recognize the right of your fellow students to organize in accordance with their own beliefs, even if you disagree with those beliefs. We hope that the SBA will finally make the right choice. It is no weakness to change one’s mind when it is appropriate.

Sincerely,

The American Civil Liberties Union of Eastern Missouri
The Foundation for Individual Rights in Education

Contact Information:

Matt LeMieux, Executive Director, ACLU of Eastern Missouri
Email: Matt@aclu-em.org
Phone: 314-361-2111 (work); 314-753-3693 (mobile)

Greg Lukianoff, Director of Legal and Public Advocacy, FIRE
Email: greg@thefire.org
Phone: 215-629-4043 (weekend); 215-717-3473 (weekdays)

 
[Eugene Volokh, 2:53 PM]
CAUSATION: InstaPundit writes, referring to the Clayton Cramer post noted below, that

JERRY FALWELL may be a prototype Idiotarian, but Clayton Cramer explains how his dumb comments can cause deaths in India.

Hey, nobody said idiocy was harmless.

I'm certainly no Falwell fan, as my criticism of his statements reveals. But surely the fault of those who kill -- or even engage in general strikes -- based on wrongheaded comments (made half a world away, yet) is far greater than the fault of the man who makes those comments. And it seems to me that the more immediate fault of the rioters actually prevents Falwell from being properly faulted for what the rioters did.

     In one sense, Falwell's comments may have indeed "caused" the deaths -- were it not for Falwell's comments, the strike and then the riots and the deaths probably wouldn't have happened. This is what the law calls "but-for cause." But then again if someone tries to shoot Salman Rushdie for writing Satanic Verses, but misses and hits a five-year-old child, then Rushdie could likewise be said to have "caused" the death, since were it not for Rushdie's writing, the five-year-old child would be alive.

     We'd probably hesitate to use "cause" in this sense, though, because we'd say that Rushdie cannot be morally faulted for the evil reaction of his would-be assassin. The exact reason why this action breaks the chain of responsibility -- and in common usage, even of causation -- is controversial; but I think most of us would agree that the chain is broken. In legal terms, Rushdie's writing wasn't the "proximate cause" of the child's death, even if it was the but-for cause.

     The same, I think, applies to Falwell. I wouldn't morally fault Falwell for the deaths, and I'd even hesitate to say that he "caused" them, because in common usage, "cause" does contain an element of responsibility and thus proximate cause and not just but-for cause. More broadly, whatever Falwell's folly may be, the folly of the strikers and the folly and evil of the rioters is far greater -- and I think it is they, not Falwell, who are the true moral cause of the deaths.

 
[Eugene Volokh, 12:45 PM]
RIOTS IN INDIA OVER FALWELL'S ANTI-MOHAMMED REMARKS: Clayton Cramer reports on this. The idea of Indians striking over what an American televangelist says seemed to me to be quite far-fetched; but that's what the story he links to says, and I found a Deutsche Presse-Agentur story describing the riots as well.

 
[Eugene Volokh, 9:08 AM]
NEW BLOG LINK COUNTERS AND RANKINGS: BlogStreet's Top 100.

 
[Eugene Volokh, 9:06 AM]
BREAKING SNIPER NEWS: Clayton Cramer writes that the police seem to have a very good idea of just what van they're looking for, and that they might have a particular suspect surrounded. I'm not sure, and I don't think Clayton is either, but it's an interesting possibility, so I thought I'd pass it along.

 
[Eugene Volokh, 9:01 AM]
ANOTHER CALL FOR HAVING PUBLIC UNIVERSITY ORGANIZATIONS PUNISH UNPOPULAR SPEECH ON CAMPUS: From the Daily O’Collegian, Oct. 10, 2002:

The Sexual Orientation Diversity Association and the Oklahoma State University chapter of Amnesty International passed a resolution Oct. 2 regarding the racially derogatory photographs taken at a Sept. 20 Alpha Gamma Rho fraternity party. . . .

     The news release said the person in blackface and the person in the Ku Klux Klan attire from the party made many members of the OSU community feel threatened and created significant mental damage. . . .

     The statement also said that though AGR has not applied for any [Student Government Association] funds, the fraternity should be deemed ineligible for co-sponsorship funds as a punishment. . . .

     The news release also said communities will not tolerate verbal or written abuse, threats, intimidation, violence or other forms of harassment against coworkers or residents.

     In addition, the release stated that ignorance, false humor, anger, alcohol or substance abuse as an excuse, reason or rationale for such behavior would not be tolerated.

     The news release states that any group, implicitly or explicitly affiliating itself with the KKK, or any group the U.S. Department of Justice lists as a terrorist organization, is not consistent with the best traditions of the school and ties with organizations that approve of such tacit affiliations, offensive and dangerous behavior should be severed.

Three thoughts:

1. The Supreme Court has made quite clear (see Rosenberger v. Rector (1995)) that when a university provides a generally available funding program to all student groups, groups cannot be disqualified from it because of the viewpoint of their speech.



2. As with most speech restrictions, attempts to suppress "hate speech" are often defended by focusing on the most sympathetic situations -- people shouting racial insults at others, or actually advocating hatred or violence. But of course the calls for restriction quickly spread from this core to a much broader zone. I've seen no evidence that the KKK outfit was an actual attempt to intimidate anyone, or even express support for the KKK; it and the blackface might be offensive and juvenile, but I suspect that this is about all they are. Now I suppose some may argue that even this expression should be restricted -- but we should recognize how broad a zone of restriction they're calling for, and we should think about what else they'll try to restrict if they succeed here.



3. I had thought that Amnesty International generally supported free speech rather than opposing it, but I guess I was mistaken.

Finally, note a point that might seem very similar but I think is quite different -- the fraternity has apparently apologized, has given $4000 to Miss Black and Miss Hispanic student pageants run by other student groups, and agreed to have its members volunteer their time to African-American Student Association projects. The difference, I think, is that the fraternity seemingly did this for fear of sanctions by its national headquarters and the university's Interfraternity Council, which to my knowledge is a privately run organization. Private pressure to behave politely and decently is very different from governmental sanctions -- and private pressure is often the right response to rude behavior. If the Interfraternity Council is a school-run organization, rather than just a voluntary league of the school's fraternities, then I oppose their involvement in this. But the fraternity's national headquarters (definitely a private group) had every right, both legal and ethical, to act as they seemingly did.

 
[Eugene Volokh, 8:34 AM]
PREDICTING ELDRED: Several months ago, I explained why I think that the Court should strike down Sonny Bono Copyright Term Extension Act in Eldred v. Ashcroft. I had originally thought that the Act, while unwise, was constitutional, but my erstwhile coauthor Larry Lessig persuaded me otherwise.

     But will the Court strike it down? At first, I was sure that the challenge to the Act would be quickly rebuffed, and that the Court wouldn't even agree to hear the case; recall that in virtually all situations, the Court has no legal obligation to consider a matter -- you have a right to your day in trial court, and in a court of appeals, but not in the Supreme Court (or, generally speaking, in a state supreme court, for cases filed in the state system).

     Then, though, the Court did grant certiorari (the legalese term for agreeing to hear a case). For many cases, the grant of cert doesn't much predict the Court's view about the merits, because most cases are granted to resolve a conflict among the lower courts -- the Court might want to affirm the result in this case, but overrule the result in other cases that disagree with it. Here, though, there really wasn't a serious circuit split; presumably at least four Justices (the number needed to grant cert) must have thought there was something iffy about the decision below, which upheld the Act. It's possible that they just granted cert because the case seemed interesting, but that's generally not the way the Court works.

     But were there indeed four firm votes to strike down the Act? And even if there were, would there be the fifth needed to make up a majority? I normally try to avoid making predictions about close cases like this one, but then the John Henry vs. Steam Drill law professors vs. political science model project sent me a ballot that required me to put my forecast down on paper -- and now I thought I'd share my prediction with you. Note that my prediction was made before the oral argument, which people say didn't go well for the challengers, but then again oral argument is a notoriously unreliable set of tea leaves. In any case, here's my guess, which I'm stuck with:

1. Bottom line: 6-3 to strike down the law, at least in part. Fortunately, the ballot didn't require me to say whether the law would be struck down entirely (both as to its prospective and retroactive effects) or only in part, so I'll just stick by my "at least in part" statement.



2. Scalia and Thomas would vote to strike the law down because they'll think that the "limited Times" and "to promote . . . progress" provisions are textual limitations on the Congress's enumerated power, and these limitations should be enforced. (See my original post for my explanation of why this is a good argument.) The Court should generally defer to the political branches, they would reason, but not where there's a specific constitutional constraint. They might also be moved by the First Amendment argument, though Thomas more so than Scalia (see the Justices' free speech voting records here). Recall that there are two separate arguments in this case -- (1) that the law exceeds Congress's enumerated power, and (2) that even if it's within the power, it's still trumped by the First Amendment, which was intended to be a check on Congress's enumerated powers. If the challengers win on either argument, the law will be struck down.



3. Kennedy will take the same view, but be also quite moved by the First Amendment point -- he has the broadest view of free speech of any of the Justices.



4. Souter doesn't believe that courts should enforce the limits on Congress's enumerated powers, or so his votes in the federalism cases suggest. But he will instead vote to strike down the law because he too has quite a broad view of free speech, and he'll think that the term extension restricts speech (by restricting people's ability to create new works based on old ones) with virtually no compensating benefit to the marketplace of ideas (since the extension won't materially increase the incentive to produce new works).



5. Stevens, like Souter, won't say that the law exceeded Congress's enumerated power, but he will say that it violates the Free Speech Clause. Stevens has on balance a narrower view of free speech than Souter does, but his views are quirky, and based on what he sees as pragmatic evaluations of the law's actual effects. And here I think he'll probably say that on balance the speech restriction is unjustified.



6. O'Connor takes a pretty narrow view of free speech; and while she favors enforcing limits on federal power, she does so primarily because she wants the states to have more independent authority. Here, unlike in most other federalism cases, the debate isn't federal power vs. state power -- it's federal power vs. no government power. But I think she would still vote to strike the law down, because her Feist Publications v. Rural Telephone Serv. (1991) opinion specifically mentioned the limits on Congress's Copyright/Patent Clause authority, and I think she'll feel that this law goes beyond those limits. I'm not very confident about any of the strike-it-down predictions, but this is one that I'm least confident about.



7. Rehnquist will vote to uphold the law because he takes a narrow view of free speech, and, like O'Connor, supports restraints on federal power because he thinks the states are entitled to more independent power. Outside narrow zones such as federal-state relations, he tends to highly defer to the legislature; he will do so here. I'm pretty confident about this.



8. Breyer will vote to uphold the law because he too takes a narrow view of free speech -- the narrowest of any of the Justices -- and he's never met a federal law that he thinks is outside Congress's enumerated powers. True, he wrote an article 30 years ago suggesting that copyright law might not make much economic sense, at least as to certain works (his article, if I recall correctly, was specifically focused on books). But I think he'll find it quite easy to set this policy preference aside in this constitutional case; I doubt that this is a preference that he feels very strongly about, and I think he feels more strongly about reaffirming Congressional power and the need for the Court to usually defer to Congressional judgment. I feel quite confident about this prediction, too.



9. Ginsburg will vote to uphold the law for reasons similar to Breyer's. She does take a broader view of free speech than Breyer does, but here I don't think she'll be that moved by the free speech argument, and I think she'll feel strongly about reaffirming the breadth of Congress's enumerated powers. I am not that confident about this prediction.

In any case, here they are, for whatever they're worth. How much are they worth, you may ask? Well, recall that I (1) erroneously predicted that the Court wouldn't grant cert at all in this case, (2) in the first major recent federal power case, United States v. Lopez, predicted that the Court would uphold the Gun-Free School Zones Act by a vote of from 7-2 to 9-0 (the Court struck it down by a 5-4 vote), and (3) in the next major recent federal power case, City of Boerne v. Flores, predicted that the Court would uphold the Religious Freedom Restoration Act by a vote of 7-2, if I recall correctly (the Court struck it down by a 7-0 vote on the federal power issue, and split more or less 6-3 on the bottom line).

     So my soothsaying powers on federal power cases are extraordinarily weak. (They're stronger in other areas of the law, such as mainstream First Amendment cases, where my track record is fairly decent.) And beyond that, this is a novel case, with little precedent to go on. Since I had to give a prediction, I foolishly decided to make it public. But the better bet is just to sit tight and see what the Court will say about this several months from now.

 
[Eugene Volokh, 6:30 AM]
VOLOKH CONSPIRACY BEHIND THE TIMES: Reader Joshua Chadwick reports that Hawaii actually raised its age of consent last year from 14 to 16; according to the backers' news release, this was the first bill on which a gubernatorial veto was overridden since Hawaii became a state.

     This is part of a broader trend in the U.S. over the last 10 or so years; several states used to have 14 be the age of consent, but I think that now none do, at least as a general matter. (I researched this when writing the Teacher's Manual for my First Amendment textbook; one of the problems in the book involves a libel case brought based on an allegation that a government official had sex with a 16-year-old, and I thought some information on ages of consent would provide an interesting factoid.) Some states have a relatively low age of consent -- perhaps as low as 14, though I'm not sure -- when the parties are close in age, and some states let relatively young teenagers marry (though sometimes that requires parental consent), which then allows them to have sex. But I do not know of any state in the U.S. that now has a general age of consent that is below 16.

     Still, the main point I was making -- that state laws may differ from one another, and that this doesn't violate the Equal Protection Clause -- remains correct.

 
[Eugene Volokh, 5:55 AM]
SMALLPOX: Ed Richards, a professor who specializes in public health law, e-mailed around this article on how smallpox immunization today would differ from smallpox immunization in 1970, when it was last done in the U.S. on a systematic scale. I lack the ability to evaluate the piece myself, but it struck me as quite thoughtful and seemingly sensible, so I thought I'd pass it along. (Note also that its concerns about immunosuppressed people are echoed in a recent Slate piece, though the numerical estimates in that piece strike me as suspiciously high.) A few excerpts:

[W]e have lived with the medical fact of immunosuppression secondary to HIV, cancer and arthritis treatment, transplants, and other natural and iatrogenic causes for more than 20 years, and almost everyone implicitly thinks this is the way it has always been. When we did the last massive smallpox vaccine campaigns in the US, we had almost no immunosuppressed persons in the population. (Partially because they probably were the 1/1,000,000 deaths from the vaccine.)

     In 2002, there are at least 1% and perhaps 2% or more of the population with significant immunosuppression, either permanently or because their physician likes to treat aches and pains with Medrol Dosepaks. . . .

     Working the numbers, 1% of 280,000,000 is 2,800,000 immunosuppressed persons. If 1/10, a conservative estimate, develop vaccine complications, that is 280,000, and if only 1/10 of those die or are permanently injured, that is 28,000, probably on the low side. The numbers that the press and the government documents continue to use are those from the 1960s world, 1/1,000,000 deaths and perhaps 10/1,000,000 serious complications. These translate to 280 deaths and 2,800 serious complications, numbers that can only be reconciled with 28,000 deaths and 280,000 complications by one assumption: that no immunosuppressed persons will be immunized. Consistent with this, the CDC's smallpox vaccine guidelines, prior to the most recent mass immunization clinic guidelines, recommend that immunosuppressed persons not be vaccinated.

     Many, probably most, persons do not know they are immunosuppressed, either because they do not know they have HIV or because they have no idea of the connection between the drugs they are taking and immunosuppression. The first issue posed by non-emergency smallpox immunizations is identifying the immunosuppressed. The guidelines depend on self-identification, which may be impossible either because the patient does not know or because the patient is unwilling to admit his/status because it is linked to HIV. The second issue is whether persons who refuse immunizations must be removed from all first responder teams and, if there is an outbreak, barred from working in any capacity that would put them in contact with exposed persons. This would exclude them from health care, police, fire, and many other activities. Such exclusion may be critical to public health and safety since unimmunized persons pose a risk to themselves and others, but it is it supportable politically? None of these questions is adequately addressed in the government's recommendations on immunizing health care and emergency workers.

Richards is not arguing against mass immunization generally; but he raises an important problem that, he suggests, is not being adequately considered.

 
[Eugene Volokh, 5:41 PM]
EQUAL PROTECTION: Orrin Judd asks a follow-up:

If the two state supreme courts split on this federal election question, does that hypothetically implicate "equal protection"? One group of voters in NJ got a choice in their election while a similarly situated group in MT won't?

Please note, I think equal protection should only, if ever, be applied in very narrow circumstances, but we're long past that day.

Good question, but the answer again is that there's no constitutional violation. The nature of our federal system is that different states may have different rules. In Hawaii, you're free to have consensual sex with a 14-year-old (no joking), while in California you might be prosecuted for that. Some states have a high income tax, others have none. Some states may have very rigid rules for substituting candidates, while others might have lax rules.

     It's true that citizens of these states are treated unequally, and there might not be a perfectly logical explanation for the inequality -- it's not that Hawaiian 14-year-olds are necessarily more mature than Californian ones. But it's enough that the citizens (or the legislators or elected judges or appointed judges) of one state prefer one approach while the citizens of the other prefer another. So long as the approaches don't violate some independent constitutional guarantee, there's no constitutional objection simply to their inconsistency -- nor can there be in a system where states still enjoy a very great measure of self-government.

 
[Eugene Volokh, 3:43 PM]
INGRATITUDE: Another tidbit from Jack Schaedel, citing a Sacramento Bee story:

A man with the environmental activist group Earth First! has died after a 50-foot fall from a redwood tree in which he'd lived for several weeks. . . .

Tree sitters can spend months camped on platforms in old-growth trees, hoping to call attention to the environmental effects of logging.

 
[Eugene Volokh, 3:30 PM]
MORE ON SIDEWAYS SHOOTING: My lawyer friend Jack Schaedel writes:

With baseball caps, backwards held sway for a while, then sideways, then various permutations of 45, 135, 225 and 315-degree posturing took the gangsta world (as well as posing suburban white preteen boys) by storm. So its only natural to expect shooters to follow suit. I'm waiting for walking backwards, sideways, etc. to take hold. So far, most judges look at me funny when I do it. They ain't down wit da street.

 
[Eugene Volokh, 2:03 PM]
MONTANA SUBSTITUTION VS. NEW JERSEY SUBSTITUTION: Orrin Judd has a post about the Republican Senate candidate in Montana dropping out of the race, and talk that Marc Racicot might try to replace him. He then asked me, in an e-mail, what would happen if the Montana courts refused to allow the late substitution -- would the U.S. Supreme Court have to rehear the case, because of the disagreement between Montana courts and New Jersey courts?

     The answer is "no." Each state's highest court is the ultimate interpreter of that state's laws (statutes, common law rules, or state constitutional rules). The U.S. Supreme Court will only step in if there's a claim that the state court decision violated federal statutory or constitutional rules. If Montana statutes are more rigid than New Jersey statutes, or if the Montana Supreme Court interprets its statutes more rigidly than the New Jersey Supreme Court interprets its statutes, there's no federal question for the Supreme Court to resolve.

 
[Eugene Volokh, 1:54 PM]
LAW-RELATED BLOGS: There's a good ABANet article about them, including links to some new ones that haven't been talked about much.

 
[Eugene Volokh, 12:44 PM]
A NEW LIFE-SAVING MEASURE: "New gangsta trend significantly reduces inner city shooting fatalities," says an article in a gun magazine.

According to an article published in the September issue of Handguns magazine, a recent decline in fatalities resulting from inner city handgun shootings can be credited to the thriving popularity of a flashy new gangsta-style shooting technique wherein the weapon is canted 180 degrees from its normal upright position.

"Hollywood overkill of the sideways gangsta shooting method encouraged many modern hoods to look for a less trendy but equally cool-looking technique for offin' someone,'" wrote freelancer Marian Ayoob in Handguns' September cover story, entitled "Better To Look Good Than To Shoot Good." "Over the last three months, holding a gun completely upside down has become the predominant method used by stylish gangstas whom, as they say, 'be fixin' to put a cap in a [person's] dome.'"

The article went on to reiterate statistics from the National Archive of Criminal Justice Data (NACJD), which documented August 2002 as having the lowest record of shooting fatalities for men between the ages of 17-34 since December 1980. . . .

Ayoob also cited studies by ballistic experts at the University of Michigan in Ann Arbor, which estimate that employing the unorthodox handgun shooting technique can reduce a subject's short range accuracy by as much as 80 percent.

Still, Ayoob contends, more and more gangstas are becoming willing to sacrifice accuracy in return for aesthetic rewards. . . .

"What the shooter loses in short and long-range accuracy, and the ability to quickly fire consecutive rounds, he or she more than makes up for in presenting a more 'bad ass' appearance [than using a standard shooting technique]," wrote Ayoob. "Polls indicate that thugs consider 'how you be representin' be just as important as how you be shootin'.'"

     OK, this is from a parody site (I was pretty sure from reading it that the piece was largely tongue in cheek, and said as much when I originally posted this, but reader Curt Cutting e-mailed me to gently point out that I could have gotten 100% confirmation from a quick look at the site's front page). But oddly enough it turns out that there is at least a grain of truth here: Many gang members apparently do think it's cool to hold guns sideways (though not, to my knowledge, upside-down), and it seems to me quite likely that such shooting is in fact much less accurate.

 
[Eugene Volokh, 10:58 AM]
GREAT CATHY SEIPP PIECE ON THE "BARBERSHOP" FLAP. Thanks to InstaPundit for the link.

 
[Eugene Volokh, 10:36 AM]
THE FOURTH AMENDMENT: Lots of people are justly proud of our Bill of Rights, and stress the need to adhere to it even in times of crisis. That's generally a great attitude, since our constitutional rights are often particularly important in times of danger, since that's when government overreaching is most likely (though also when forceful government action may be most necessary).

     But too often these arguments don't consider exactly what rights the Bill of Rights protects. For instance, the First Amendment is great, but when people say "Even in times of grave danger, we must not allow the police to violate the First Amendment by infiltrating political or religious groups," my answer is that the First Amendment simply doesn't prohibit police infiltration of political or religious groups. The police are as entitled to join mosques as anyone else, and they may do so sincerely or strategically; the Supreme Court has never held otherwise, and nothing in the text or history of the First Amendment commands otherwise.

     Now maybe such infiltration might sometimes be a bad idea, though I'm not sure. One important argument for the First Amendment is Jefferson's assertion that there is "time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." Infiltrating secretive political and religious organizations is one way to make sure that Jefferson's claim remains correct -- that we can both tolerate extremist religious and political advocacy, and be able to prevent this advocacy from leading to actual violence. The speech of the KKK, the Communists, Islamo-fascists, and others can be tolerated; but the groups should certainly be closely watched.

     Of course, at times such infiltration may be misguided or ill-intentioned, and at times it has been. But my point here is simply that, good or bad, such infiltration may still be constitutionally permissible. And in times of grave danger, infiltration that we might otherwise try to avoid (as a matter of sound policy, not of constitutional command) may become imperative.

     This sets the stage for what prompted this post: an otherwise interesting post by Am So A Pundit that describes how the police visited ASAP's apartment -- which is in the area of the recent sniper shootings -- to ask him if he was walking around with a gun. The post argues that "The Constitution doesn't say I only have my rights when everything's going swimmingly," and closes with "I don't think that, because I may fit [a] very vague profile [of a potential shooter], I should be subject to searches, seizures, stops, or other kinds of questioning."

     Well, it turns out that the Constitution also doesn't constrain all "searches, seizures, stops, or other kinds of questioning." The Fourth Amendment itself bars only "unreasonable searches and seizures"; and while that has been interpreted as generally requiring at least articulable, individualized suspicion for most law enforcement searches and seizures, it has not been interpreted as covering questioning.

     The police may indeed come to your door to ask you questions, even when they don't have any specific reason to think that you are the criminal. They may not stop your car without some articulable individualized suspicion, or search your apartment without probable cause (a higher standard) and a warrant. But questioning -- which is all that happened to ASAP -- is not covered either by the text of the Fourth Amendment or by the caselaw that has emerged under it, because you have a legal right not to answer such questions. (Of course such a refusal may make the police investigate you more closely, though it will not itself be a basis for allowing them to search or seize you; but that's a risk that you run, and the Fourth Amendment doesn't prohibit it.)

     And I think that on this point the caselaw is quite right. One reason that we can afford to require individualized suspicion before the police search or seize us is precisely that they can develop this individualized suspicion through various techniques -- such as questioning people. That's the balance that seems to be struck by the text of the Fourth Amendment (and I know of nothing in the original meaning or history of the Amendment that suggests the opposite); and it's the balance that has been struck by the Court's interpretion of the Fourth Amendment. There may be much to fault in some of the Court's other Fourth Amendment doctrines, but this one -- that the police may in fact ask you questions, even when they can't search or seize you -- strikes me as quite right.

     Earlier in the post, ASAP writes "It's not pleasant to have cops come to your door, which prompts me to say . . . GOVERNMENTS HAVE RESPONSIBILITIES, I suppose, but that does not trump rights guaranteed to us in the Constitution." Yes, it's not pleasant to have cops come to your door -- but it's not unconstitutional. And while government responsibilities don't trump constitutional rights, they may trump our desire to be free from unpleasantness.

 
[Eugene Volokh, 7:14 AM]
WAR, JUSTICE, AND CONQUEST: David Greenberg, writing in Slate, has a long piece on America's wars, and he closes by condemning the Spanish-American and Mexican-American Wars:

Unlike our great and good wars, the Spanish and Mexican conflicts are little remembered (despite entreaties to remember the Alamo and the Maine). The absence of a moral grounding -- the realization over time that in each case the casus belli was fairly bogus -- discredited the American enterprise and bolstered those who derided the nation as expansionist, imperialist, or genocidal. Yet alongside these inglorious examples, America also has a tradition of waging war for honorable reasons that it could offer to the world as legitimate grounds for making war. For these wars, we not only congratulate ourselves but also gain the affection of others. The current debate about war should address not only whether we go to war but also why: If and when we invade, we should do so not because we deem it justifiable but because we can show that it is just.

Let me set aside for now the Iraq question, and ask what I think is a genuinely complicated question. Let's assume that our justifications for starting the Mexican-American War was indeed bogus (I don't know whether it was, but for purposes of our argument, let's say so). What should our view in retrospect be regarding that war?

     One aspect of the question relates to a question of fact. Greenberg seems to suggest that the war (I focus here just on the Mexican-American War; the Spanish-American War is a different matter) may have been pragmatically counterproductive, by saying that "The absence of a moral grounding -- the realization over time that in each case the casus belli was fairly bogus -- discredited the American enterprise and bolstered those who derided the nation as expansionist, imperialist, or genocidal." Well, how much did in fact "discredit[] the American enterprise," at least those whose opinion practically mattered to us? How does that lost "affection of others" compare to the distinct pragmatic benefit that the conquest of California and several other states provided?

     But of course Greenberg is also making a moral judgment, perhaps one that's more significant than the pragmatic assertion -- that even if we were benefited by the Mexican-American War, it was still unjust and shouldn't have happened. That's a plausible claim, but I wonder just how we'd evaluate it. Today's Americans are likely better off than they would have been but for the war. The descendants of the Mexicans who lived in those territories are likely much better off; sure, there has been plenty of discrimination against them, and there is some still, but I'm pretty sure that they are more prosperous and likely freer than if they were still governed by Mexico. Today's Mexicans are probably not appreciably worse off than they would have been had Mexico been a bigger place. (The formerly Mexican states do have great mineral wealth, but their great value today is not that -- Mexico has plenty of natural wealth, too -- but the human and business capital that was largely created by the American political, social, and economic system.)

     True, some soldiers and doubtless some civilians died in the war, and if it was an unjust war, that's bad. But while I don't have the numbers handy, I suspect that the deaths were not vast on either side.

     So the question really is: What is the moral status of conquest as such? Set aside the fact that the conquerors are often much worse governors of the conquered regions than the conquered (I'm pretty sure that this isn't so here, as opposed to, say, Iraq-Kuwait). Set aside conquest usually being done by bloodbath (it isn't). Set aside the notion that you're overcoming the democratic will of the conquered people (I believe that 1846 Mexico was formally democratic, but I doubt that it was in any meaningful sense so, even by the standards of that era).

     Is there some moral right of nations that's violated by conquest, independently of the welfare of their people? Is it just that the war isn't just, so that even small numbers of deaths in the war are awful atrocities? Is it something else? Or might conquest, at least in the past, be morally neutral on its own, or at least only slightly morally negative, so that the negatives can be overcome by other positives?

     Now I think that this is not a justification for conquest today, for a variety of reasons; but setting aside a few rare situations, relatively few countries today want to conquer territory to keep for themselves. (I'm not discussing here various matters related to invading other countries for other purposes.) The question is backward-looking -- what should we think of past conquests? Should we see them as inherently evil? Or might it be that "expansionism" and "imperialism" (setting aside genocide, which I do not think characterized the Mexican-American War) in the past might have sometimes been good rather than bad?

 
[Eugene Volokh, 2:41 PM]
I WILL BE ON THE HUGH HEWITT SHOW today at 3 pm here in L.A. (870 AM), though I know it airs at different times in different places.

 
[Eugene Volokh, 10:57 AM]
NETWORK SOLUTIONS: Reader Ken Hirsch contributes this:

Speaking of Network Solutions, apparently they forgot to renew this domain name: http://www.netsol.co.uk/. Childish, immature, yet amusing Shockwave audio.

VERY funny.

 
[Eugene Volokh, 7:36 AM]
ANOTHER ODD "BUSHISM OF THE DAY" ON SLATE: This time, it's an accurate quote:

"Let me tell you my thoughts about tax relief. When your economy is kind of ooching along, it's important to let people have more of their own money."—Boston, Oct. 4, 2002

But what exactly is wrong with what Bush said? I assume the implication is that he misspoke, which is what the Bushism of the Day items tend to pounce on. But if that's so, then wouldn't it have been fairer to point out what the Washington Post and Slate's own Today's Papers had pointed out:

And finally, the WP's "White House Journal" comes to the rescue of Presidential diction. At a fundraiser yesterday, Bush explained, "When your economy is, kind of, ooching along, it's important to let people have more of their own money (emphasis added)." Nothing wrong there. Ooching, the paper informs the unseaworthy among us, is a sailing term: It refers to an ungraceful but handy maneuver to put a stopped boat back in motion.

Now maybe I'm not doing the author justice here; perhaps he thought the explanation of "ooching" had been so widely spread, or at least had become so familiar to Slate listeners, that there was no need to repeat it. But if that's so, then what exactly makes this a Bushism? I take it not that it's folksy, since the Bushisms column has always focused on supposed errors and not on folksiness.

     Perhaps the claim is the exact opposite -- that it's too hoity-toity, because it refers to the aristocratic sport of saling (CNN's Joie Chen made the same point, when she acknowledged that the use of "ooching" was "Not a bad analogy for the state of the economy" but suggested that it was "perhaps not the best choice of words for a president who is perceived as being out of touch with the average"). But given that Bush's reputation is for folksiness, not aristocratic leanings, I really doubt that anyone would say "Oh, that Boston Brahmin is giving us more of his fancy-pants rich-man's talk." Or maybe one can criticize Bush for using jargon that's not well-known to most people, and thus being ineffective communication. This, though, is one of the cases where a little-known word is essentially self-defining in context; it's perfectly clear what Bush means.

     Now I'll say it again: I realize that Bushisms of the Day are supposed to be partly humorous -- but only partly. They are, I think, humorous political digs at Bush, which communicate the notion that the President isn't quite as articulate, thoughtful, or competent as the President ought to be. And such political criticisms should be fair; they should criticize that which deserves to be criticized, and not fault Bush when he is not at fault. Too often, I think the column claims that it's caught Bush in an error when the context -- context that might not be known to many readers -- suggests otherwise.

UPDATE: In response to Joie Chen's CNN claim, reader R. Horn writes:

Ooching is not hoity toity. I didn't even realize it was not a common word until reading your note. Everyone who grows up on the New England coast (e.g. me & GWB) knows that word. I never had a yacht. None of my friends had yachts. One of them had a lobsterboat. Does that count?

It's just more ignorance of the working class (in this case maritime workers) by the privileged classes who read Slate. :-)

I assume that the last sentence was aimed at privileged little me, and it is quite apt -- I must confess to my complete ignorance of maritime workers and their lingo. But at least I'm in the same boat as Joie Chen on that . . . .

 
[Eugene Volokh, 5:07 PM]
27 YEARS AGO TODAY, the Volokhs arrived in the United States of America.

 
[Eugene Volokh, 2:35 PM]
MORE THOROUGH OPINION IN LAUTENBERG/TORRICELLI CASE: As I had hoped, the New Jersey Supreme Court has just issued a more thorough opinion in the Lautenberg/Torricelli case. I haven't had a chance to read it yet, but I hope (and expect) that it provides more guidance for future courts than the earlier opinion did.

 
[Eugene Volokh, 12:28 PM]
MORE BAD NEWS FOR PLUTO: According to FoxNews.com,

A billion miles beyond Pluto, astronomers have discovered a frozen celestial body 800 miles across -- the biggest find in the solar system since the ninth planet was spotted 72 years ago. But astronomers do not consider the newfound object a planet.

The object is about one-tenth the diameter of Earth and orbits the sun once every 288 years at a distance of 4 billion miles. It is only half the size of Pluto, which some astronomers have come to believe should not have been designated a planet at all.

Planetary astronomer Michael Brown of the California Institute of Technology in Pasadena and postdoctoral scholar Chadwick Trujillo discovered the object in images taken June 4. . . . "It's about the size of all the asteroids put together, so this thing is really quite big," Brown said.

The two used a telescope at the Palomar Observatory near San Diego to discover the world, provisionally dubbed Quaoar (pronounced kwah-o-wahr), a creation force in Southern California Indian mythology. . . .

Now I'm of course excited about this discovery, but I can't help feeling bad about poor Pluto, which I grew up thinking was a planet. What a demotion -- from a planet to a mere celestial body, or whatever one calls it. How sad, and it of course brings to mind the following, attributed to Steven DeRose, Chief Scientist, Brown Univ. Scholarly Technology Group (if anyone has reason to doubt this attribution, and can suggest a more accurate one, please let me know):

ALWAYS A PLANET TO ME (to the tune of Billy Joel's "She's Always A Woman to Me")

He can orbit the sun, he can look like a moon
He can leave the ecliptic from April to June
He'll be just a faint smudge, magnitude twenty-three
He hides in the sky, but he's always a planet to me

Ohhh...a potato-shaped ball...
He can drift where he wants
He's a relic of time
Ohhh...if he's made of pure ice
Or of vapor and dust
It's the same to my mind

If he zooms in near us, would he show us a tail?
Was the Kuiper Belt once the great home whence he sailed?
And if he gets demoted, who'll be next, Mercury?
And the most he can do is cast shadows, it's true
But he's always a planet to me

 
[Eugene Volokh, 10:47 AM]
CLOSELY READING THE NEW YORK TIMES STORY: One more item about the Forrester April substitution controversy -- if one looks closely at the New York Times article, one sees that the allegation is only about "a legal memorandum from Mr. Forrester's lawyer written in April.":

Mr. Genova also uncovered a legal memorandum from Mr. Forrester's lawyer written in April, when State Senator Diane Allen, one of Mr. Forrester's opponents in the Republican primary, was trying to block him from taking the ballot position of James W. Treffinger. Mr. Treffinger, the Essex County executive, had resigned from the race because of scandal three days earlier, or 40 days before the primary.

Senator Allen maintained that moving Mr. Forrester's name to Mr. Treffinger's place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester's lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg's placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

"Strict compliance to statutory requirements and deadlines within Title 19," Mr. Sheridan wrote, "are set aside where such rights may be accommodated without significantly impinging upon the election process."

Mr. Genova said the Forrester campaign was trying to have it both ways. But Mr. Sheridan said today that the two situations were not analogous because "no primary ballots had been issued" in April.

What I'd like to know is whether the memorandum was purely internal to the Forrester campaign, or whether it was sent by the Forrester campaign to others (whether the Bergen County Republican Committee or a court). If it's the latter, then the campaign can be faulted for taking inconsistent positions. But if it's the former, then all we see is a position taken by a lawyer within the campaign and not by the campaign itself.

     The campaign thus wouldn't be properly faulted for inconsistency, since it didn't take inconsistent positions. And the lawyer wouldn't be properly faulted for inconsistency, because there's nothing unethical or slimy about a lawyer taking one position in one situation and another position in another. That's our job -- to come up with the best arguments possible for our clients, even if the arguments are not consistent with what we argued in a previous case for another client, or in a previous memo to the client in the same case.

     Now chances are that the lawyer's memo was sent by the Forrester campaign to someone outside the campaign, and wasn't just purely internal to the campaign -- but note that it wasn't called a "brief," so it probably (but not certainly) wasn't filed in court. My normal skepticism about the newspapers leads me to reserve judgment until I get some more data. And the skepticism is strengthened here by the fact that the New York Times committed at least some factual errors in its reporting. Even under Mark's explanation, for instance, the Times at least erred in reporting the deadline for ballot changes, which would be 48 days in the April primary position change case, and 51 days in the most recent Lautenberg substitution controversy.

UPDATE: Mark Kleiman writes:

Whatever the status of the memo, Forrester did ask to have his ballot position changed, and that request was granted, over the objection of another candidate. He had no right to that change, which was requested after the deadline, unless the courts could waive an election-law deadline. If it's now his position that the New Jersey courts have no right to waive election-law deadlines, then he asked for, and got, an illegal advantage in the spring. If the New Jersey courts do have a right to waive election-law deadlines, then asking the US Supreme Court to overrule the New Jersey Supreme Court was an outrage.

This is an interesting point, but it further reminds us how little we know about the facts (and how premature my earlier judgment might have been). First, as I understand it, Forrester did not ask a court to have his ballot position changed; the change was done by the Bergen County Republican Committee (I think), and then one of Forrester's opponents (Allen, I think) challenged it in court. If Forrester asked the Committee to change this, and if the court accepted this change even though it violated a state law deadline, then it's bad for the Forrester forces to complain about the waiver of a different deadline for Lautenberg. Alternatively, if there was no binding state law deadline there (and again, recall that we're not sure exactly what state statute was involved in the ballot placement change, and whether it had a binding deadline), but despite this the Forrester campaign argued in its briefs or in a memo to the outside world that binding state law deadlines should be disregarded even if they were present (not uncommon, since lawyers sometimes argue in the alternative this way -- "there's no deadline, but even if there was one, you should waive it"), then it's also bad for for the Forrester forces to complain about the Laut nberg waiver.

     But we're not sure about this. We don't know whether there's a binding New Jersey state deadline for such substitutions; the New York Times account is nonspecific and seemingly mistaken in at least some particulars, and while Mark's reading of the New Jersey statutes is plausible, I'm not sure that it's right, and that the statute really applies to ballot placement substitutions. We also don't know whether the Forrester campaign argued that even if such a binding deadline existed, it should be waived; all we know is that there was some memo by a Forrester lawyer. So I do hope that I can get my hands on the papers in the April case -- until then, the situation strikes me as quite murky.

 
[Eugene Volokh, 10:38 AM]
MORE ON THE FORRESTER BALLOT POSITION CHANGE: Mark Kleiman suggests that the New York Times story may be wrong in some details, but may be ultimately sound in its conclusion that Forrester successfully avoided a statutory deadline in April. Mark's argument is complex, and I haven't analyzed it as closely as I should (and as I hope to), but it's much worth reading, if you're interesting in this fracas.

     Note, though, that Mark, other bloggers, and I are all speculating here about what actually happened in the litigation: We read the New York Times story, assume that it's basically correct, and try to see how the New Jersey statutes might be interpreted consistently with that story. The better bet would be to actually read the April decision -- which unfortunately is not, to the best of my knowledge, on the Web -- or read the briefs in the case (since the New York Times claim had to do with what the Forrester campaign was arguing). I've asked the invaluable UCLA Law Library reference desk to try to track down this information for me, and if I get it soon, I'll definitely share it.

 
[Eugene Volokh, 7:36 AM]
MY THEORY ABOUT WHY CALVIN'S TIGER IS NAMED HOBBES: Because Calvin is nasty, brutish, and short.

UPDATE: Reader David Florman points out that others have also independently made this observation, see for instance Mark Wollaeger's post in this thread. Hey, great minds think alike!

 
[Eugene Volokh, 7:36 AM]
LIMITATIONS OF CLAIMS OF INCONSISTENCY: A reader writes: "This thought just struck me, and given your strong support of the 2nd Ammendment I thought that you would perhaps appreciate it: The people who would trust Saddam with nuclear weapons are also, by and large, the same people who do not trust their fellow citizens with firearms." I recall that some other people have written to me to make the same point.

     I don't think this analogy quite works. Few of the anti-war people trust Saddam with nuclear weapons in principle; they'd like to see Saddam not having nuclear weapons. They oppose war, though, because they think that in this particular situation, the costs of going after Saddam to prevent him from getting nuclear weapons exceed the benefits of going after him. Those of the anti-war people who are also pro-gun-ban take a different view of the costs and benefits of trying to ban guns. I disagree with them on both of these cost-benefit analyses; but I don't think there's anything inherently inconsistent in the anti-war pro-gun-ban position.

     In general, I've come to be skeptical of such claims of inconsistency, because often on examination there's a perfectly plausible explanation for why people hold these two seemingly inconsistent positions. I'm reminded of the old argument that it's inconsistent to be pro-capital-punishment but anti-abortion; after all, both involve killing, don't they? Well, yes, but one involves killing of the guilty and the other involves killing of the innocent -- not particularly inconsistent to take a different view as to the two. (That the anti-abortion forces call themselves "pro-life" doesn't really prove the inconsistency; all quick labels like that are oversimplifications. Obviously the "pro-choice" people aren't in favor of all possible choices, since no-one can be; likewise pro-lifers aren't in favor of preserving all life.) One can fault the anti-abortion pro-capital-punishment forces on the merits. But the charge of inconsistency doesn't really stick, and neither does it stick as to the anti-war pro-gun-ban forces.

 
[Eugene Volokh, 6:01 AM]
NON-CITIZENS VOTING: A while back I had a post about noncitizens voting; I suggested that I was generally opposed to this as the state and federal level, and where taxes or criminal laws are concerned, but in some contexts -- for instance, the internal governance of a government body, such as a law school -- belonging to the specific community (e.g., being a law professor) might be more important than belonging to the national community. More broadly, I thought that the idea of noncitizens voting wasn't as outrageous as some suggested. (Some have even argued that noncitizen voting is actually prohibited by the constitution; I think that's not so.)

     A friend of mine -- a leading election law expert, who I'd say is considerably more on the Right than on the Left -- happened to post something similar to another discussion list, and I got his permission to pass it along. I wasn't aware of much of this history, but I trust his expertise here.

As a historical matter, non-citizens were routinely allowed to vote in state and local elections at the close of the 18th century (provided they met the other significant restrictions of the time, i.e. male, property ownership, etc.). Indeed, states often offered this benefit as a way to help attract immigrants, who were seen as economically beneficial.

In the early 19th century, even as the franchise was rapidly expanded for citizens, there was a trend to limit immigrant voting. However, this trend reversed again after the Civil > War, in part due to the service of immigrants in both Northern and Southern armies during the war, and by the 1890s about half the states allowed non-citizens to vote.

The racist and nativist philosophy of the progressive movement fed hostility to non-citizen voting, and was augmented by the assassination of President McKinley by an immigrant, and finally the "Red Scare" of Woodrow Wilson and Mitchell Palmer after WWI. The last state to abolish immigrant voting was Arkansas, in 1926.

As a constitutional matter, in Skafte v. Rorex, 553 P.2d 830 (1976), the Colorado Supreme Court found no constitutional right for permanent resident aliens to vote. The U.S. Supreme Court has not specifically ruled on it, but has suggested that citizenship with respect to voting is not a suspect class subject to strict scrutiny. Hill v. Stone, 421 U.S. 289 (1975); Sugarman v. Dougall, 413 U.S. 634 (1973).

The justification, of course, is that because non-citizens have not chosen to join the body politic (especially given that in the U.S., it is pretty easy to do so), they therefore have not shown an interest in the long term welfare of that polis, and so should not vote. The flip side is that they are subject to the draft, pay taxes, etc., like the rest of us.

I think our current balance -- they can't vote but can make contributions and participate in campaigns, trying to influence the votes of citizens, is probably about right. However, there are certainly many immigrants I would rather see voting than many citizens, and I am not certain that if the goal is to have a responsible, informed electorate, excluding non-citizens is necessarily the best rough cut.

I would probably be somewhat more opposed than my friend to letting noncitizens vote in state and federal elections, especially since in many jurisdictions noncitizens are a huge group, and I do think that swearing allegiance to your new nation is an important step in making people feel like they have a long-term stake in the nation's health. But it is important to realize that the proposals to allow noncitizen voting are not some departures from an unbroken American tradition.

 
[Eugene Volokh, 10:44 PM]
REALLY ENJOYED PARTICIPATING IN A DEBATE ON CIVIL LIBERTIES DURING WARTIME, here at UCLA Law earlier tonight. The Angry Clam has details.

 
[Eugene Volokh, 7:27 PM]
WHAT A GRACIOUS CORRECTION: Bill Herbert has a very nice response to my earlier criticism of his description of a Military Times survey. Yes, I know that this post-about-response-to-criticism-of-his-description-of seems very inside blogball, but I just thought that the promptness, frankness, and politeness of the correction merited mention.

 
[Eugene Volokh, 7:24 PM]
FEEDBACK REGARDING THE FORRESTER SUBSTITUTION ISSUE: Thanks to reader Joshua Urquhart, I now know that under N.J. Stat. 19:23-58, "Any provisions of this title which pertain particularly to any election or to the general election shall apply to the primary election for the general election in so far as they are not inconsistent with the special provisions of this title pertaining to the primary election for the general election," so that means that the 51-day rule for substitutions of candidates in the general election would probably apply to the primary election. But that still doesn't point us to any deadline for changing ballot positions when someone drops out and another candidate, who is already on the ballot, wants to take his place. I've looked for such a deadline, and so far haven't found it.

     Neither has reader Robert Hochman, who writes the following:

The NJ Code that sets forth the procedures for holding a primary election is Title 19:23-1 et seq. My review of it indicates that there is no 51 day provision like 19:13-20, which applies in the general election. The primary election code is full of jargon that makes it difficult to follow, but there appears to be at least two potentially relevant provisions.

First, some background. It appears that the code contemplates that candidates for a primary should submit petitions of nomination which includes the signatures of a bunch of folks. One provisions says the signers have to be members of the party that the candidate wants to represent. 19:23-7. Another says you need 1000 such signatures. 19:23-8. You get the idea.

The first relevant provision says that these signers get to nominate a committee of three people to serve as a "committee on vacancies." 19:23-12. If the person nominate dies, resigns or otherwise isn't going to run, this committee can select a replacement. The committee's choice must be made "at least 48 days" before the primary to have "the same force and effect as the original petition of nomination." (This is all still in 19:23-12.)

Obviously, 48 days is more than the 40 days in advance of the election that Forrester's primary opponent, Treffinger, dropped out. BUT, and this is important, nothing in the article suggests that Forrester was seeking to be nominated IN THE PLACE OF TREFFINGER. The article says that Forrester wanted to move his name into Treffinger's place on the ballot (perhaps a more favorable ballot position). The section we have been discussing, 19:23-12 says NOTHING about ballot position. It's about getting your name on the ballot, which, from the article, it appears Forrester already had accomplished.

So, what provision governs the construction of the ballot? That's 19:23-24. It provides for drawing of position by lot in each county. This is supposed to take place 47 days in advance of the election. Again, Forrester seems to have asked to change the ballot position too late. But, this provision says nothing about a time limit to CHANGE the ballot after the lots have been drawn and one of the candidates drops out.

So I don't see where the Times gets (1) a 51 day rule or (2) finds support for its claim that Forrester violated any time limit.

One BIG CAVEAT: I don't know what actually happened. I'm just going off the story, which says that Forrester asked to have his name MOVED to a new position on the ballot. If that's all he asked for, I haven't found any deadline that he violated. And, if that's all he asked for, it seems to me that in the absence of any deadline, it would be HIGHLY RELEVANT that no ballots had yet been printed. Finally, you might say that Forrester should have asked for a re-drawing of lots. But before I pick on him for that, I'd want to know why State Senator Allen didn't say that's what should happen. She was the one complaining. What did she think should have happened?

By the way, cut the nonsense about not being an "election law expert." That's silly. I'm not an election law "expert" either, but we are dealing with a situation that basically hasn't happened. There is no academic who studies the details of this stuff, especially at the level of a particular state, much less New Jersey. To speak intelligently one needs only to read the statutes themselves, and to the extent you can figure stuff out -- they are hard to understand, at least to me -- you report what you found out, along with citations. What you say is either true or false, and whether you are an "expert" or not has no effect on that.

So far, then, it seems that it's possible that Forrester was not trying to avoid a seemingly clear statutory deadline, which is what the Republicans had accused the Lautenberg forces of doing. Again, there might well be something that I'm missing here, and I'd love to hear it if there is; but it might be the case that people's original reaction to the story (and my own included) was not fully justified. Stay tuned for further updates . . . .

 
[Eugene Volokh, 4:55 PM]
WE'RE NUMBER 3 on blogdex right now, with our item on Canadian customs holding up the pro-Israel pamphlets.

 
[Eugene Volokh, 3:41 PM]
POLLS: Hate to sound like a broken record, but be careful about trusting polls and characterizations of polls. InstaPundit links to a Bill Herbert item that talks about a "poll[] conducted to gauge what military members think," and about its findings on "support among the military" for the war. But the cited article itself reveals that the poll is a random sample of Military Times readers, and not of military members generally. To its credit, the cited article points this out, though perhaps not as prominently as it might have (the paragraph comes after various assertions about what "The nation's military" thinks):

The poll may not reflect the thinking of service members as a whole, because subscribers to Army Times, Navy Times, Air Force Times and Marine Corps Times tend to be career-oriented and do not typically include the most junior enlisted and officer ranks. Senior noncommissioned officers and field-grade officers made up a higher proportion of our sample than they do the general military population.

Pollsters taking the pulse of the general population use publicly available lists of phone numbers or addresses and randomly sample the nation. But no publicly available, comprehensive lists exist for service members. The Military Times subscriber base is arguably the best available independent list from which to conduct a survey of military men and women.

Thus, we really don't know what military members generally think; we just know what the Military Times readers think, and this may be skewed both by the bias that the Military Times describes, and whatever political slant (if any) the Military Times publications might have. If, for instance, the various publications are generally known as fairly hawkish (sheer speculation, but something we'd need to investigate before generalizing from the publications' readership to the military at large), then the less hawkish military members might just not read them as much.

     Now it may well be that the military generally is more pro-war than the public at large (not much relevant to the policy debate, I think, but relevant to the tangent related to the "chicken-hawk" allegation). And this poll is not chopped liver; it may well be worth reporting, as one data point on what one chunk of the military thinks. But it seems to me quite important to make sure that the poll results are reported with suitable warnings, and not just as findings about what "military members" think.

 
[Eugene Volokh, 12:57 PM]
MCKINNEY COMPLAINT: I've posted the complaint in the McKinney case here. This was sent around on an election law professors' list, so I assume that it's authentic, but I should warn people that I have not independently checked this. Thanks to Ed Still for passing it along.

 
[Eugene Volokh, 12:05 PM]
HMM. My Sunday post about Forrester supposedly getting a waiver of a statutory ballot-change deadline in April -- which would make Republicans' resistance to the Democrats' getting a waiver of a statutory ballot-change deadline today -- said that this would be really bad politics for Forrester "if the story . . . is correct." Now I'm beginning to wonder, partly because I haven't seen any pointer to the specific statutory deadline that he was supposedly trying to get waived.

     It's clear that it's a different statute (the one at issue in the Lautenberg switch governs having a name included on general election ballots; the controversy in April had to do with the position on the primary election ballot), but I'm not sure which statute it is. The New York Times story talks about a 51-day limit in Title 19 of the New Jersey Election Code, but my WESTLAW search couldn't come up with anything like that. I asked some election law scholars on an online discussion list, and no-one seemed to know what it was. I also did a LEXIS search for newspaper stories about the April switch, and there were some, but they didn't give many details.

     The Times might well be right; in fact, despite my general skepticism about newspaper accounts, I'm willing to give them a rebuttable presumption of correctness. I am not an expert on New Jersey election law, so I've probably just not been able to find the right statute. Still, I was wondering if any readers might know more details, and enlighten me on the subject. Thanks!

     (By the way, I thought the Forrester legal challenge was probably bad politics even before the supposed April incident came out; so I think it's bad politics -- and seemingly not legally successful, either -- regardless of what happened in April. But I am curious about exactly what did happen.)

 
[Eugene Volokh, 11:17 AM]
SUPREME COURT DENIES CERT IN THE NEW JERSEY CASE, so e-scuttle-butt says.

 
[Eugene Volokh, 11:16 AM]
HEADLINE ERROR: This foxnews.com story is headed "Anti-Racism Conference Splits Over Exclusion of Whites," but I think there was a typo here -- it obviously was supposed to say Pro-Racism Conference:

BRIDGETOWN, Barbados — A handful of countries -- including Russia, Cuba, South Africa and France's overseas territories -- withdrew their delegates from an anti-racism conference to protest its decision to exclude whites.

Most of the 250 delegates at the African and African Descendants Conference Against Racism whistled and cheered Friday when chairwoman Jewel Crawford of the United States defended the conference's decision.

"There are some times when we feel that we just want to have a meeting of our own," she said.

Some 200 delegates voted Wednesday for whites and Asians to leave the deliberations, saying slavery was too painful a subject to discuss in front of non-Africans.

Fifty delegates abstained and more than a dozen white and Asian journalists, interpreters and delegates left. Some white interpreters returned Thursday and Friday and were allowed to work.

The 60-strong British delegation introduced the measure, arguing the conference was entirely for blacks to discuss issues from racial profiling to reparations for slavery.

The walkout did not come until two days later, on the fourth day of the six-day conference. It was led by Cuba, followed by South Africa, Colombia, Russia and the French overseas territories of Martinique, Reunion and French Guiana.

"Cuba will never support any action aimed at segregating a group of people. Furthermore, Cuba believes that such a decision is intolerant and contrary to the purposes of this conference," Maria Morales, the Cuban delegation's spokeswoman, told the conference.

The South Africans said the conference had gone adrift and they could not endorse the decision to exclude non-blacks. It was unclear how many delegates left the conference late Friday.

Crawford said "the motion of exclusion was the will of the majority."

Ghanaian delegate Maya wa Taifa agreed, arguing that Africans often are too generous for their own good and that "our over-hospitality" backfired on the conference. . . .

Remarkable -- I agree with the Cuban delegate.

 
[Eugene Volokh, 10:52 AM]
GOOD LORD, NETWORK SOLUTIONS SERVICE IS APPALLING. Just awful -- I'm trying to move some domain names from one server to another; how hard can that be? I've had to send them several faxes, and got back very general e-mail messages complaining about problems with the faxes -- hardly very helpful information. Whenever I've called them, the people at the switchboard seem clueless. I finally got a call from one of their tech people (who was actually quite helpful); he told me to call back their number and ask for him, but both times I did that, the switchboard operator tells me that they can't actually connect customers to tech people this way (even though this is what the tech guy specifically asked me to ask them to do). Finally, both times they did try to connect me, but told me that he wasn't available, and wouldn't even take a message. I eventually got through to a supervisor, who promised to give the information to him -- but when I asked her (and, earlier, him) for an e-mail address, I was told that I couldn't e-mail him.

     It's 2002, and Network Solutions tech people can't get e-mail! That sounds like some sort of joke. What a lousy company.

UPDATE: Robin Goodfellow echoes my complaints:

Sad to hear that you've got business to do with Network Solutions. In my experience (which is unfortunately far too extensive) the only way to get them to do anything is to call them up on the phone and be willing to stay on hold for about 2-4 hours while you get your problem fixed directly.
Though perhaps you'll have to call 2 or 3 times. Suffice it to say that I don't use NSI anymore, I prefer register.com (who's service has so far been very much more than satisfactory), though there are a few other good registrars out there.

FURTHER UPDATE: Paul Rinkes also writes:

[Y]our post on network "solutions" hit home for me. my blog is in my sig; it's dot-net because, although i own the same dot-com address, i couldn't get network "solutions" to change a lousy DNS entry (the same thing i think you were trying to do).

i bought another domain, this time with verio, and was on the web in two days. the nice thing about verio, if you don't know, is that they give you a "control panel" -- basically, a web page that is an interface to their DNS records for your domain(s). so if you want to change server information, you go to your control panel, change the info, and in 24 hours, the change propagates worldwide.

verio can't get enough of my money. and their tech support is primo, too.

MORE: Steven Gallaher writes:

Network Solutions is expensive and (apparently) widely unresponsive. Many others are cheap and responsive. I now use 000domains.com, and while I have had all good experiences, I have only had to deal with them directly once (when I transferred a domain to them), so I can't really give an emphatic recommendation. The domain transfer was accomplished entirely via e-mail and took about a week, including stall time from the old registrar. They were recommended to me by the people who host my blog (www.blogomania.com). 000domains.com has a management page which allows you to change DNSs with no input from them.

 
[Eugene Volokh, 10:34 AM]
"NAME MCKINNEY VICTOR, CROSSOVER VOTING SUIT ASKS":

Republican voters who crossed over to help Denise Majette beat U.S. Rep. Cynthia McKinney in August's Democratic primary interfered with voting rights and their votes should be declared invalid, a lawsuit filed Friday contends.

Five DeKalb County voters were named as plaintiffs in the suit, filed in U.S. District Court in Atlanta. It says the "malicious" crossover voting was unconstitutional and violated the Voting Rights Act, and asks that McKinney be declared the winner.

"The issue is that black Democratic voters in the 4th District had their voting rights interfered with and violated," said Atlanta lawyer J.M. Raffauf, who represents the five African-American plaintiffs: the Rev. E. Randel T. Osburne, an official of the Southern Christian Leadership Conference; Linda Dubose; Brenda Lowe Clemons; Dorothy Perry; and Wendell Muhammad, a McKinney campaign official.

Raffauf, who has represented McKinney, said the congresswoman supported the litigation. . . .

The controversial five-term incumbent lost to Majette 58 percent to 42 percent. Before the primary, leading Republicans and conservative commentators urged Republicans to vote for Majette in the Democratic primary. McKinney has repeatedly blamed the crossover voting for her defeat, and charged that Democratic officials aided Majette. . . .

Georgia does not require voters to register by party, and they may choose either party's ballot in the primary. But the lawsuit contends that an organized attempt by members of one party to affect the outcome of another party's election is illegal.

"Malicious crossover voting occurs when one party invades another party's primary to sabotage that party's choice of its own nominee for political office," the lawsuit says. . . .

Raffauf said his suit was bolstered by a 2000 U.S. Supreme Court decision invalidating California's "blanket" primary. Under that system, each voter's ballot listed every candidate, regardless of party affiliation, and allowed voters to choose freely among them.

That system, however, differs from Georgia's practice of requiring voters to choose one party's ballot. And Justice Antonin Scalia, writing for a 7-2 majority in the California case, made a point of noting that it did not require the Supreme Court "to determine the constitutionality of open primaries."

     I actually agree with the earlier Supreme Court decision (California Democratic Party v. Jones), and if the Democratic Party decided that it wanted to have a closed primary, they might have a constitutional right to do this (though I'm not sure that they could insist that the state register voters by party, if the state -- like Georgia but unlike California -- prefers not to include this information in its registration records).

     But the claim that a losing candidate's supporter can challenge the election because some crossover voting was supposedly "malicious" strikes me as a clear loser. I'm not an election law expert, but I would be amazed if this claim prevailed; and I'm pretty certain that it ought not prevail.

UPDATE: Click here for a link to the complaint.

 
[Eugene Volokh, 10:24 AM]
CANADIAN CENSORSHIP OF PRO-ISRAEL PAMPHLETS OVER: The Ayn Rand Institute, which was sending the pamplets, reports that Canadian customs released the pamphlets; to quote an earlier National Post story, "the goods were being detained to determine whether they constitute hate propaganda."

 
[Eugene Volokh, 9:49 AM]
CRYPTONOMICON TRIVIA QUESTION ANSWERED here.

 
[Eugene Volokh, 9:38 AM]
THE IMMUTABLE LAWS OF MAUREEN DOWD: Josh Chafetz has incisively criticized Maureen Dowd before, on his OxBlog site, but his Weekly Standard piece on the subject seems to be particularly good.

 
[Eugene Volokh, 9:12 AM]
EL BLOGGO NORWEGO has some very entertaining predictions. I should warn people that I don't believe in this psychic stuff, but I hear that it works even if you don't believe in it. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 7:03 AM]
QUOTE FROM CRYPTONOMICON. Yes, I am a crazed fan geek. I know my weakness, and I have surrendered to it. In any case, here it is, Admiral Yamamoto talking about the Americans who three pages later prove to be his death:

The Yanks are laughably rude and uncultured, of course; this hardly constitutes a sharp observation. Yamamoto, by contrast, attained some genuine insight as a side-effect of being robbed blind by Yanks at the poker table, realizing that the big freckled louts could be dreadfully cunning. Crude and stupid would be okay -- perfectly understandable, in fact.

     But crude and clever is intolerable; this is what makes those red headed ape men extra double super loathsome. Yamamoto is still trying to drill the notion into the heads of his partners in the big Nipponese scheme to conquer everything between Karachi and Denver. . . . Come on guys, Yamamoto keeps telling them, the world is not just a big Nanjing. But they don't get it.

By the way, I quote this because the "extra double super loathsome" is one of the most memorable lines in any book that I've read, and not because it's favorable to Americans, who have in fact at times made the same error that Yamamoto is faulting the Japanese for, and will doubtless make it more times in the future. In fact, one of the many things I love about Cryptonomicon is how the author portrays the American side with affection and yet with warts, avoiding both jingoism and fashionable self-loathing (which are wrong as an intellectual matter and make for bad writing).

     Since I'm at it, one more paragraph:

[Yamamoto] realizes something: The Americans must have done the impossible: broken all of their codes. That explains Midway, it explains the Bismarck Sea, Hollandia, everything. It especially explains why Yamamoto -- who ought to be sipping green tea and practicing calligraphy in a misty garden -- is, in point of fact, on fire and hurtling through the jungle at a hundred miles per hour in a chair, closely pursued by tons of flaming junk. He must get word out! The codes must all be changed! This is what he is thinking when he flies head-on into a hundred-foot-tall Octomelis sumatrana.

 
[Eugene Volokh, 6:36 AM]
LIFE OF BRIAN: Good line from Michael Dorf, a leading con law professor at Columbia:

Finally, no preview of the Supreme Court Term would be complete without mentioning the pending question of whether the State of Washington unconstitutionally used the interest on money held by lawyers in trust for clients to fund speech with which those lawyers and clients might disagree.

The case is notable not for the momentousness of the underlying legal question but for its amusing caption. The Life of Brian Award goes to Washington Legal Foundation v. Legal Foundation of Washington.

My favorite caption, which has a similar yet slightly different feel, is John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989).

 
[Eugene Volokh, 12:14 PM]
"BANG! -- OW! -- YOU IDIOT!" That is the sound of the Republican politicos shooting themselves in the foot, if the story about Forrester -- that he violated the same deadline in the primary that the Democrats violated with the Lautenberg switch -- is correct. (See Mark Kleiman for details.)

     Yes, I know, legally speaking the case against the Lautenberg substitution may still have force; and one could argue, that as a purely legal matter, the U.S. Supreme Court should set aside the Lautenberg substitution but not the Forrester substitution (since there was no lawsuit regarding the Forrester substitution, and since I suspect that the time to file such a lawsuit has probably lapsed). I'm not sure whether the argument would be a legal winner, but that's almost beside the point, because who wants to win in court and then lose in the ballot booth? Even before this, I thought that the anti-Lautenberg lawsuit was likely to alienate voters; and if this story is correct, the effect would be even stronger, and might well carry over into many races outside New Jersey.

     Sometimes my party does some pretty silly things. (Fortunately, sometimes the other party does, too!)

UPDATE: Reader Harmon Dow points out what both Mark and I first didn't focus on -- that the Forrester substitution had to do with Forrester's place on the ballot (he wanted to move to another line on the ballot), and not to whether he was present on the ballot in the first place. This does make the case different in some ways.

     But I think Mark is right to point out that the political and legal debate about the Lautenberg substitution has to do with following the rules. The Republicans' argument now isn't primarily that there's something inherently wrong in changing candidates 36 days before the election; after all, if the change had been made 52 days before the election, I don't think there'd be much of a controversy. Rather, it's that there's something wrong in not following the rules, and in particular in courts creating new vague rules out of some general desire for "equity." And yet this request to avoid the legal timetables seems to be the same sort of request that the Forrester campaign originally and successfully made during the primary. (Bill Quick has a different explanation, but I think Mark's second update is right in arguing that this doesn't quite work.)

     I do, though, agree with a follow-up e-mail that Harmon Dow sent:

Putting aside the legal niceties, . . . the Republicans shot themselves in the foot in NJ -- they had the perfect opportunity to react by pointing out that the Democrats had knowingly put up a corrupt candidate, and were either a bunch of incompetents or were treating the voters like fools. I suspect that Mr. Forrester would have found himself leading ANY new Democratic candidate if he had just mocked the Democrats, and shown himself ready to take on all comers.

This seems to me exactly right (though again I acknowledge that I'm far from an expert on these political matters). Even if Republicans have a legal right to keep the Democrats' new choice off the ballot, you don't look good to voters -- especially in a Democrat-leaning state like New Jersey -- if they sue over it. And they look even worse if it looks like they're railing against the Democrats for something much like what their Republican standard-bearer successfully did just months before.