[Eugene Volokh, 12:52 PM]
UNEXPECTED BENEFITS: "Woman Shot in Chest But Saved by Breast Implants." Here are the two best paragraphs:

A plastic surgeon was called in to fix the damage and took the opportunity to increase the size of Mrs Soares' breasts with more silicone.

She said: "I'm twice happy, first because my prosthesis saved my life and also because now I look even more beautiful."

(Thanks to GeekPress for the pointer.)

 
[Eugene Volokh, 4:32 PM]
WHEN MAY THE POLICE DEMAND THAT A PEDESTRIAN IDENTIFY HIMSELF? The police may not just stop someone without any reason and demand that he identify himself; the Supreme Court made clear in Brown v. Texas (1979) that stopping someone for no reason violated the Fourth Amendment. (There are exceptions to this, such as for drunk driving checkpoints and the like, but this is the general rule.) The Supreme Court also made clear, in Terry v. Ohio (1969) that the police may stop someone if they have "reasonable suspicion" to believe that the person may be involved in crime, a standard that's below the "probable cause" needed to arrest him, and then briefly detain the person while they figure out what's going on.

     But the Court has not clearly decided whether a state law may obligate people (pedestrians or passengers, and not just drivers) to present identification once they are lawfully stopped. A 1983 case, Kolender v. Lawson, raised this Fourth Amendment issue but didn't squarely decide it because the Court held that the state law was unconstitutionally vague.

     The Nevada Supreme Court has just made it fairly likely that the Court will indeed have to settle the matter. The Ninth Circuit, in Carey v. Nevada Gaming Control Bd. (2002) struck down the Nevada law that required people to present identification when they are lawfully stopped; but the Nevada Supreme Court has just upheld the same law, in Hiibel v. District Court. The Nevada Supreme Court decision creates a disagreement between a federal circuit court (the Ninth Circuit) and a state supreme court in that circuit (the Nevada Supreme Court) about the constitutionality of a particular statute. The Supreme Court tends to view such disagreements as particularly in need of resolution, even more so than the conventional "circuit split," where different circuits (or some circuits and some state supreme courts outside the circuit) reach different results.

     I predict that the Court will agree to hear the case, unless there's some procedural problem that I'm unaware of (these are often hard to tell until one sees the response to the petition for certiorari). You heard it here first (unless you read the Las Vegas Review-Journal, which seems to be the only newspaper that has covered this, or unless you subscribe to the Westlaw WLB service, which is where I first found a paragraph-long description of the case).

 
[Eugene Volokh, 8:29 AM]
THE CONSTITUTION IS NOT A COMPLETE GLOSSARY: I got another message yesterday from a thoughtful reader who protested against the term "states' rights," on the theory that the Constitution recognizes only the rights of individuals, not states. I responded by pointing him to my earlier post that cited lots of Framing-era evidence that showed that states were described as having "rights" at the time.

     Ah, my correspondent responded, but isn't it more important to see what the Constitution says, especially when we're considering whether states' rights should be recognized as a matter of constitutional law? And the Constitution seems to only refer to the rights of individuals, and when it talks about states -- as in the Tenth Amendment -- discusses their "powers" rather than their "rights."

     I don't think that's quite right. If your goal is to understand the meaning of a particular bit of constitutional text, then it does matter what neighboring clauses say; as I've argued before, it would be odd if "the right of the people" meant an individual right in the First and Fourth Amendments, and a states' right or a right of some small state-selected body in the Second Amendment.

     But if your goal is to more broadly understand whom the Framers saw as rights-bearing entities, or how the Framers were generally willing to use concepts such as "right," then the Constitution is too narrow a document for that purpose. Likewise, if your goal is to understand what the Constitution meant to the Framers, you likewise can't limit yourself to the text.

     The Constitution is a short document, which wasn't intended or understood as providing some authoritative and complete glossary for the legal terms or legal concepts of the era. The body of the Constitution uses the term "right" only in one place -- the Copyright/Patent Clause -- even though it protects many things that are seen today and were seen then as rights. The Bill of Rights itself uses the term "right" only in some of its provisions. It doesn't speak of the right to free speech, the right to due process, the right to be free from cruel and unusual punishment, or the right to compensation if one's property is taken. I know of no well-supported theory that shows that these provisions were somehow seen by the Framing generation as being materially different from those that were called "rights." (After all, they were all in the Bill of Rights.)

     The Framers cared about the words they used, but they didn't write with an eye towards having the Constitution be the sole source of all legitimate legal concepts. Their failure to use a certain term -- whether it's their not using the term "right" used to refer to the freedom of speech, or their not using the term "right" to refer to states -- thus can't tell us much about the legitimacy of that concept in the constitutional structure.

     Rather, we should consider the broader structure of Anglo-American jurisprudence within which the Framers were writing. If that jurisprudence recognized a concept, such as the concept that states and other entities besides individuals could have rights, then the failure to mention the concept in the constitutional text doesn't make the concept constitutionally illegitimate. The Constitution does secure to states certain immunities from federal government action, just as it secures to individuals certain immunities from state government action. And there's nothing in the Constitution that makes it illegitimate or unsound to refer to those immunities as "rights," much as the Framers at times did.

 
[Eugene Volokh, 2:55 PM]
AN E-MAIL FROM A READER ABOUT WOMEN IN COMBAT: Reader Robert Fairbarn writes:

I would like to add one more factor to your brief blurb on the rape of women in combat. My father was a two and one half tour combat vet Ranger in Vietnam and he is adamantly opposed to women in combat for the very reasons you cite. He has, however, one twist on your scenario.

Solders that are captured are trained to recognize that they are eventually going to break under the stress and pain of capture. In light of this fact they are schooled to hold out as long as possible in the hopes that any information they give will be obsolete or altered by that time. With the addition of women in the POW camps, this ability to withhold information until the last minute would be compromised. A man hearing a comrade being tortured can say to himself: "hold on X. You can take it." But all but the
most heartless of men could listen to, let alone witness, the rape of a woman knowing that it is within their power to stop it. The women POWS would be tools used to get at the other solders and would compromise combat operations and the lives of others. This is in addition to the increased shock and trauma such events would have upon the release of these men.

 
[Eugene Volokh, 2:24 PM]
WOMEN IN COMBAT: So here's the nasty issue that I think has to be at the heart of the women-in-combat debate -- the risk of rape of female prisoners of war.

     Soldiers of many nations have been notorious rapists of civilians; consider the reputations of the German, Soviet, and Japanese armies during World War II, as well as the more recent experience in the former Yugoslavia. (To my knowledge rapes of civilians by American and British soldiers have generally been much less extensive and widely tolerated or even encouraged as the rapes by the Germans, Soviets, and Japanese were, but that's not even the point here; I'm not trying to lay blame or give credit, but simply to point out that in fact many nation's soldiers have engaged in mass rapes of those women that they could safely get their hands on.) There's little reason to think that the nastier of today's armies, including the very ones we're likely to be fighting, will act much differently towards our soldiers. Yes, there is always the risk of homosexual rape of male soldiers, but a variety of factors suggest that the likelihood of any male prisoner of war being raped is much less than the likelihood of a female prisoner of war being raped.

     Why should we worry about this, given that we send our soldiers to risk death? I suppose one could say that a high risk of rape is a serious enough extra threat, even compared to death, that we shouldn't inflict it on our soldiers; and that might be enough to, for instance, justify not drafting women into combat positions. But it doesn't by itself justify prohibiting even volunteers from serving in combat. After all, some soldiers volunteer for tasks where the risk of death is considerably higher than the average; why shouldn't they also be able to volunteer for tasks where this other risk is present?

     The answer, I think, has to be that the risk is such that it will substantially change the behavior of soldiers, and of their comrades. Combat units with women in them may be especially reluctant to surrender, either because the women soldiers refuse, or because men soldiers refuse to put their women comrades at risk. Officers may be especially reluctant to send such units (or, if all units have women, then to send units generally) into a position where they might have to surrender. Missions to rescue prisoners may become a much higher priority. Civilian reactions to the war would be affected in a variety of ways.

     Nor could this be dealt with by simply saying "The women soldiers voluntarily assumed the risk." Even if every woman who really wants to be a soldier signs a statement acknowledging the danger and specifically agreeing that fellow soldiers can and should put the danger out of their minds (and I suspect that some brave and patriotic women soldiers would indeed be willing to take such a view), I doubt that many people will be much affected by this sort of waiver.

     Some male soldiers might reason "True, my comrade may end up getting raped if we surrender, but, hey, she knew the job was dangerous when she took it, so I'll just put the risk out of my mind" -- but many soldiers wouldn't. I'm not a military expert, so maybe I'm missing something big here, but this just seems to be simply human nature. If you were a female soldier, a male platoonmate, or an officer, would your judgment really be unaffected by the risks I describe, even if everyone involved had signed every conceivable waiver?

     Now none of these pressures are completely novel. Soldiers' decisions to surrender or not to surrender, commanders' decisions to commit troops, soldiers' and commanders' decisions to rescue prisoners, and the public's willingness to continue a war more generally (or perhaps to fight it especially harshly) have long been affected by a variety of factors that might not fully coincide with the nation's best interests (which, after all, is what military staffing decisions are supposed to ultimately serve). But it seems to me that the risk of women prisoners being raped will likely be yet another factor -- and an important one -- that can drive people's decisions, and can increase the risk to other soldiers' lives and to the success of the war effort.

     The other concerns about women in combat may also have some merit. The possible risks to unit cohesion do strike me as quite serious, as does the risk of pregnancy, even setting aside rape. The disparity between male and female strength is not as relevant, I think, because it just counsels in favor of using actual strength, rather than gender, as the criterion. But the most important factor, I think, is the one I describe above, because it seems to me much harder to eliminate through measures short of excluding women from combat forces.

     Again, I stress that I'm not an expert on the subject, and it might well be that there's some empirical evidence that I'm missing here. Moreover, I come at this with the presumption that women and men should indeed be treated equally, even in military matters, unless there's some very powerful reason to the contrary. Here, though, it seems to me -- at least tentatively -- that there is indeed such a powerful reason.

 
[Eugene Volokh, 12:13 PM]
"DENOUNC[ING] AN UNPOPULAR BLACK PERSON": William Saletan has an interesting piece in Slate about the charges that Frist engaged in race-baiting when he said -- in his first 1994 Senatorial race against Sen. Jim Sasser, D-Tenn. -- "While I've been transplanting lungs and hearts to heal Tennesseans, Jim Sasser has been transplanting Tennesseans' wallets to Washington, home of Marion Barry." (See Mickey Kaus and Josh Marshall for more on this.) The article's ultimate conclusion is that Frist isn't guilty, partly because he also denounced other, white, politicians.

     Nonetheless, while I generally like the piece, I'm somewhat troubled by one thing that it says:

The Barry line, however, seems to meet the Lott standard: It's open to innocent interpretations but conveys a racial message to anyone who wants to hear it that way. Like Marshall, I get suspicious whenever a white politician denounces an unpopular black person before a white audience.

Now the author is speaking of what makes him suspicious, not of what he thinks is per se wrong, but still -- is it really good for us to become "suspicious" (and suspicious of racism) simply because people denounce unpopular black politicians, who may richly deserve denunciations? Seems to me that in a democracy, denouncing politicians, whether white or black, is a fundamental check on power and abuse. Black politicians ought to be as subject to this as white ones, Jewish or Catholic ones as much as Protestant ones, female as much as male, and vice versa.

     Some might point out that indeed some speakers who condemned Marion Barry might have been racist, as were some listeners with whom such condemnations scored points. But just how much weight should this carry? I don't think that we should stop speaking out against bad people or bad policies simply because some other people who agree with us do so for racist reasons. Even a stopped clock is right twice a day; even racists might accidentally stumble on the right view (e.g., that Marion Barry was a bad guy [clearly right], and that Congress should have exercised more oversight over money it was sending to a badly dysfunctional city government [possibly right]), if for the wrong reason.

     I think the Slate piece is correct when it suggests that things may be different when someone only condemns black (or Jewish or female or Catholic) politicians and doesn't likewise condemn similarly situated white, male, or Protestant politicians. (As I mentioned, the piece concludes that Frist does not fit into this category.) But I think that before we express suspicions of racism, we ought to have at least this sort of evidence -- and not just the fact that a white politician has "denounc[ed] an unpopular black person" (who might well be quite justly unpopular) in front of a white audience.

 
[Eugene Volokh, 11:41 AM]
SAN FRANCISCO'S RAINBOW CO-OP GIVES UP BOYCOTT OF ISRAELI GOODS:

Besieged by Jewish protesters, San Francisco's Rainbow Grocery backed away from a partial boycott of Israeli-made goods Sunday . . . .

The worker-owned supermarket caused an uproar when two of its largest departments, packaged foods and bulk foods, banned certain Israeli-made goods to protest Israel's treatment of Palestinians.

But as 200 people gathered in front of the grocery Sunday for a demonstration, the cooperative's board of directors announced that the boycott was null and void.

"We apologize for the lack of oversight in allowing our internal processes to break down," said a director, Seanetta, who goes by only one name, reading from a prepared statement explaining that the two departments acted on their own. "We at Rainbow Grocery Cooperative do not tolerate any anti-Semitism on any level, or any form of oppression." . . .

Thanks to reader Dick King for passing this along.

 
[Eugene Volokh, 11:23 AM]
SHOULD SAUDI ARABIA BE ALLOWED TO JOIN THE WTO, GIVEN THEIR CONTINUING ANTI-ISRAEL BOYCOTT? E.V. Kontorovich (a lawprof at George Mason) argues that it shouldn't:

The accession process requires nations that don't have open economies to make radical, and often painful, reforms in the direction of free trade, as China did recently. Riyadh, on the other hand, has been tightening a boycott of Israeli goods, a secondary boycott of American and other firms bold enough to trade with Israel and even a tertiary boycott of businesses trading with businesses that trade with Israel. Other boycotting nations with much smaller economies -- Lebanon and Algeria -- have applied to join the WTO, but their candidacies have not progressed as far.

I don't know enough about the subject to have an informed opinion, but Kontorovich's op-ed seems much worth reading.

 
[Eugene Volokh, 11:16 AM]
JERUSALEM POST COLUMN ON MORMONS AND JEWS: I think it's generally quite excellent (and I thank reader Larry Rothenberg for passing it along); here are some key excerpts:

Gevalt! The Mormons are out to get us when we die. . . .

This is what we Jews are afraid of? Have we fallen, to borrow a Hebrew expression, on our heads?

I know, I know. . . . It's the principle of the thing. After all, we resent it when Christians try to convert us while we're alive, even if they don't succeed. We even have a law against missionizing in the State of Israel. Why should it be different because we're dead?

IT SHOULDN'T be. Our resentment in both cases is uncalled for. So is the law against missionizing. So is the whole idea that there's anything wrong with Christians trying to convert us. It's their right to try, and it's time we grew up and stopped being such crybabies about it -- especially when, far from being something to cry about, much of it, like the Mormons' plan for church expansion in Heaven, is so funny. . . .

[A]s a member of a tiny minority in this world, [I need] to try to see to it that the world lives as openly, freely, and fairly as possible, because these are the conditions under which minorities do best. The last thing I want is to live in a society which thinks it has to control or legislate what some people are allowed to tell other people about religion.

I would be upset, as I think most Jews would be, not only if the United States Congress were to make it illegal for Jews to proselytize among Christians, but even if such proselytization were to be frowned upon by American society at large -- and since it was a famous rabbi who said, "Do not unto others what is hateful unto yourself," it is both hypocritical and foolish for Jews to want to ban Christian missionizing anywhere, including Israel, in this life or the next. . . .

Deep down, of course, the real Jewish fear is that if Christians are permitted to go all-out to convert Jews on a level playing field, they will succeed. This is a fear, however, that calls not for whining about Christianity, but for thinking seriously about Judaism. If it's justified, we'd better understand why. If it isn't, we should outgrow it.

We can't have it both ways, happy to be treated by Christians as their political and social equals while clamoring to be regarded by them as a protected minority. When you're really equal, you don't need special protection.

 
[Eugene Volokh, 11:01 AM]
THOUGH IT RISKS OF REOPENING AN OLD STORY, I thought I had to pass along a claim of actual facts about the warm gun question. OK, it's not exactly actual facts, but merely something printed in a book; and as we know, it may be sheer rumor or fabrication despite that. Nonetheless, here it is, from reader Richard Horvath:

I've dug out the book with at least some information on the song. The book itself is "Revolution in the Head: The Beatles' Records and the Sixties", by Ian MacDonald. The book does mention that the title came from a "slogan of America's National Rifle Association, which Lennon saw in a gun magazine", page 254. It also attributes a quote to Lennon, "I thought, what a fantastic, insane thing to say. A warm gun means you've just shot something", without providing a source.

Also, in footnote 3 on the same page, the author states that Lennon denied that the song had anything to do with drugs. MacDonald also suggests that the song does have erotic undertones (or would it be overtones?) given the influence Lennon's relationship with Yoko Ono was having over most of his music at the time (in other words, it looks like MacDonald is taking a wild guess on the real "meaning" of the song).

As a side note, it appears that the BBC did ban the song for its sexual references.

Come to think of it, I am highly skeptical that this was ever a slogan of the NRA, and though it's not implausible that it might appear in a gun magazine, I'm far from sure about that, too. Still, here it is, for whatever it's worth.

 
[Eugene Volokh, 10:56 AM]
MALAWI IN THE NEWS: Todd Seavey e-mailed me to point out that Malawi, despite its Official Status as one of the world's most obscure countries, is in the news:

Rumours that Western aid agencies are collecting human blood in return for food aid in famine-stricken Malawi have spread panic among villagers, who are barricading their homes, fearing attacks by vampires. The anxiety is so great in parts of the south that farm workers in one of Africa's poorest countries are staying at home. . . .

I suppose this is further evidence of Malawi's obscurity, though -- other countries make it into the news through more traditional channels (economy, science, culture, naked aggression), but to get Malawi in the papers require vampire stories.

 
[Eugene Volokh, 9:15 AM]
ENGLAND, CRIME, AND FOOD: I just read, at the recommendation of guest blogger Iain, Theodore Dalrymple's essay "The Starving Criminal," and I echo Iain's recommendation -- it really does seem to be first-rate. Readable, thoughtful, and (if accurate, and I have no reason to doubt this though I stress as usual that I'm not expert enough to know for myself) quite telling.

 
[Eugene Volokh, 8:39 AM]
SEASON'S GREETINGS: I've always hated the phrase "Season's Greetings," which strikes me as a classic example of leaching all the vigor and familiarity from an American tradition in the name of inoffensiveness. It grates on my ear on so many levels. First, no-one celebrates the season as such. No-one gets warm feelings when they hear about a "season" in the abstract as opposed to a particular concrete holiday.

     Second, who ever says "[fill-in-the-blank]'s Greetings"? Have you ever heard of anyone saying "Summer's Greetings"? "Graduation's Greetings"? This isn't the way normal English speakers talk.

     Third, can't we have something a bit warmer than just "Greetings"? There's nothing terribly friendly or pleasant in greetings as such. Wishing someone a happy this or a merry that is a nice gesture, but just greeting them conveys little by way of good feeling. (True, I don't approve of criticizing well-established phrases on the grounds that they're different from the sum of their parts; that's what idioms are like. But when a new idiom is being pioneered, one should look closely at its elements, since at least its original meaning and connotation will flow from those elements.)

     Now I've never much minded Merry Christmas. I am not a Christian and wasn't raised a Christian, but I certainly like having a merry day on December 25th; I'm even happy to wish others a Merry Christmas. Merry Christmas isn't an attempt to proselytize -- it's merely an expression of goodwill. I can see how some people who didn't grow up with a Christmas tradition (whether or not they're religious) might not be particularly moved by it. But I think it's unreasonable for people to be offended by this. (As I may have mentioned before, it's vitally important to maintain a distinction between reasonable offense and unreasonable offense, even as a matter of manners rather than law. It's obviously hard to tell what offense is reasonable and what isn't, but it's necessary, lest we lose literally hundreds of words and phrases that someone somewhere for some reason thinks are offensive.)

     Still, even if one decides that one doesn't want to wish people a Merry Christmas, why not stick with a familiar, sensible, and pleasant wish -- Happy New Year. The year is changing; even those Americans whose traditional or religious calendars have a different new year's day in fact live their lives by the standard American calendar. We all want our new year to be happy.

     Hence, "Happy New Year"; nothing wrong with that. "Happy New Year" -- traditional, simple, warm. "Season's Greetings" -- bureaucratese, bland, and formal.

     I am not invariably anti-P.C., in part because sometimes the political correctness forces do have it right. Columbus isn't someone to be revered (though he was no great monster by the standards of his monstrous day). Using "gay" as a general pejorative, which is apparently all the rage among kids these days, is hardly right. We should be aware that we live in a society filled with people from many traditions, and sometimes (though only sometimes) adjust our actions, words, and thinking accordingly.

     But "Season's Greetings" captures much of what makes so much political correctness so obnoxious: a tin ear for the language; a pointless rejection of cherished traditions; an insistence on finding offense where none is intended; a bureaucratization of the way we express ourselves; and the rejection of perfectly sensible alternatives that actually fit the way real Americans speak.

 
[Eugene Volokh, 8:49 AM]
IAIN MURRAY GUEST-BLOGGING TODAY AND TUESDAY: Please welcome Iain Murray of stats.org and The Edge of England's Sword (one of the most dramatic blog names I've seen), who'll be guest-blogging today and much of the day tomorrow. Iain's main interests are in the use and abuse of scientific and statistical information (among other things, he wrote the Encyclopaedia Britannica's item on the use of statistics in the gun control debate), and in what the Anglosphere countries can learn from each other. Iain is reachable at iain at stats.org.