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Saturday, May 11, 2002


ON FEARING GUNS: Jeff Jarvis says it candidly: "I fear guns." I've heard this from many other people, too -- often as part of an argument (as in Jarvis's case) in favor of various gun controls. (No direct link, I'm sorry to say, but it's the Thursday, May 9 post that's titled "Bang.")

     Now I don't think of "fear" as a dirty word; it's good to fear some things. The problem isn't fear, but rather unreasonable fear, or fear that unreasonably influences our judgments. And one test of whether fear is reasonable is how proportional it is to the actual risk.

     Do people who say they fear guns, for instance, also say they fear cars? It's true that a little under 29,000 people each year die from gunshot wounds in the U.S. (just run a query on this Centers for Disease Control site). But over 42,000 people each year are killed by cars (see the same site). It's a bit odd, then, for people who would never say "I fear cars" to say "I fear guns."

     What's more, it turns out that the majority (over 16,500) of all gun deaths in the U.S. are suicides. If you don't think you're likely to kill yourself, then you should compare the 12,000 homicides and accidental gun deaths each year with the 42,000 car deaths, and ask yourself: "Do I fear cars over 3 times as much as I fear guns?" If not, then maybe your fear of guns is not fully thought-through. (Note that there are 200-250 million guns in the country, which I suspect is probably pretty similar to the number of cars, so the ratio I describe here applies to deaths per gun vs. deaths per car as well to the absolute numbers of deaths.)

     Of course there is a good reason for many people to fear guns more than they fear cars: The people may know how to safely handle a car, but not how to safely handle a gun -- and of course one should be especially afraid of using a deadly object when one doesn't know how to use it safely. But while that is a rational fear, it's a fear that comes of ignorance. And the solution is obvious: Learn how to use a gun safely, something that's much easier than learning to drive safely.

     There are lots of perfectly rational arguments for various kinds of gun controls. I tend to be skeptical of most such arguments, but I respect many of them. But these arguments shouldn't be founded on a fear that seems out of proportion to the risks (again, unless the speaker also says he fears cars even more than he fears guns).

     (Incidentally, I'm also puzzled by the statements, at least the first of which I've also heard from others, that "I don't understand why anyone would want to own a gun" and "Guns are not fun." Surely the former must be figurative, since there are so many obvious reasons why people would want to -- rightly or wrongly -- own a gun. And the latter is obviously false for lots of reasonable people, who find target-shooting fun [I do] and lots of people find hunting fun [though I don't]. Target-shooting, after all, is an Olympic sport; surely this suggests that at least some people find it, and the devices used in it, to be fun. Even if one believes that guns are dangerous, one must admit that they may be fun.)


DAR WILLIAMS: Eve Kayden posts the lyrics of Dar Williams' "The Pointless, Yet Poignant, Crisis Of A Co-Ed" (what a great title!). It's generally a very good song, but it also contains one of my favorite lines ever written: "I am older now, I know the rise and gradual fall of a daily victory."


IN THE FUTURE: Some time in the next several days, The Volokh Brothers blog will become . . . The Volokh Conspiracy. (No, we're not Kausing out, though we wish we could!) More details coming soon.


READING: Just finished Lois McMaster Bujold's latest in the Miles Vorkosigan series, "Diplomatic Immunity" -- a fabulous read, just like the rest of the Miles books. Not great literature, but much worth time time and money. Bujold's "Curse of Chalion," which I finished a month ago, is less satisfying -- the first two thirds are very good, but the last third is disappointing. One problem with writing good fantasy, I think, is keeping the sheer magnitude of the fantastic entities' powers from ruining the tension. SF sometimes suffers from the same problem, but generally less so. (One excellent recent fantasy book that doesn't suffer from this is Niven & Pournelle's "The Burning City.")

     By the way, though I have read a lot of science fiction, I only discovered Bujold thanks to -- they have lists of Nebula and Hugo Award winners on their sites, and one day when I was looking for something new I looked them up. It should be easy and profitable for a books-and-mortar store to do the same: They just need to post the lists in some prominent place on the Fantasy / SF shelf (or, better yet, put little labels on the shelf right by the books, but that would involve more work and more risk that the books will be moved away from the labels). But none of the big stores do that.


NEWSPAPER NAMES: So this perennial question came up over lunch again today -- why the Sacramento (or Fresno) Bee? Or the Toledo Blade? I understand the Timeses, Journals, Examiners, Heralds, Presses, and Posts. I even figured out the Washington Blade (a paper serving the D.C. homosexual community), and was told the explanation for the New Orleans Times-Picayune. But the Bees and the Toledo Blade remain mysteries. Enlighten me, oh readers!


"TRAITOR TO HIS RACE": A reader writes, in response to my post about black lawprofs boycotting a Clarence Thomas speech, while stressing that they'd have gone to hear white conservatives:
My grandfather, who is a dear man, but a dyed in the wool Socialist, told me that General Powell was a traitor to his race for taking a job with the Republican administration.

Racism takes many strange forms.
     Very well put, and it reminds me of something I think I heard from Jim Chen, a lawprof at the University of Minnesota: Race treason is apparently a crime that only nonwhites can commit. If whites support the Jesse Jackson wing of the Democratic party, anyone who calls them "traitors to their race" would be quite properly condemned -- whites are rightly expected to do what they think is right, not "what's good for whites." But somehow when a black departs from the supposed black orthodoxy, he is held to a much harsher standard.

     It seems to me that once you start down the path of racial double standards, even supposedly "benign" and well-motivated ones, that's what you eventually tend to get. Abandoning the notion that one's ideas and qualities should be judged without regard to one's skin color necessarily has many unintended consequences: From preferential treatment for blacks (race-conscious affirmative action) to discrimination against blacks (charges of race treason that may be levied against nonconforming blacks but never against whites) is a shorter step than many think.

UPDATE: Virginia Postrel writes: "Back in the bad old days there was in fact a term for white 'traitors to their race,' and it was not nearly that polite." Indeed.


THE EXTRA INCENTIVE PROVIDED BY COPYRIGHT TERM EXTENSION: Duncan Frissell was kind enough to do the math behind the assertion, made in a post of mine last week, that extending copyright protection from the author's life + 50 years to the author's life + 70 years, wouldn't provide any meaningful extra incentive.

     Duncan worked on the rough assumption that the average work is created when the author is 40, when the author's life expectancy is another 40 years; he then compared the net present value of the pre-extension 90 years' (40+50) worth of income with the net present value of the post-extension 110 years' (40+70) worth. Result: At a discount rate of 5% (seems reasonable to me), the 20 extra years of protection mean a total increase of less than 1% in the author's return on his investment of time, money, and sweat. Even at the very low discount rate of 2%, the total increase is less than 7%. (More data on Duncan's site.)

     So even the prospective extension of copyright for new works provides virtually no benefit to the public, because it yields such a small extra incentive to create. And the retroactive extension of course provides no benefit at all, because already existing works have already been created (and created under a deal that the authors knew about when they were creating).

     But extension imposes a serious cost, by delaying the entry of a wide range of works (the ones created between 75 and 95 years ago, since the retroactive extension increased old works' protection from 75 ro 95 years) into the public domain: The extension means people aren't free to produce new works based on the old ones, to digitize those works and put them on the Web, to make cheaper copies of the works, and so on. The public loses -- and only Disney and a few other owners of still-profitable early-20th-century works really benefit.


TENURE: By the way, the discussion in the post below reminds me of the etymology of the word "tenure." It turns out to refer to the length of time many professors publish after they get it -- once every ten years.


EMPLOYMENT AT WILL: A recent post took the shocking view that speaking a foreign language is a valuable skill, and that employers may legally discriminate against employees who lack this skill. A reader responded with a very pleasant note that argued, in part:
In the posting, you note that it would NOT be unreasonable for a company/organization to require a skill (such as multi-lingual ability) to hold a particular position. That undoubtedly is true, but the implementation of a change to a position's requirements might need to be more flexible. As noted in the article, the lady had worked for a number of years in that department and had been noted for doing a good job. As the Miami area has become more Hispanic, the ability to speak & understand Spanish has nearly become a necesity for these public employees to do their job effectively.

She has been given only 60 days to learn Spanish. As you know -- that is virtually impossible for anyone on this earth to do. . . .

I hope that this lady gets a reprieve as well as a kick in the butt too. If they make it a requirement for her and her coworkers to develop their ability in Spanish then the community will likely be better served. In the process she can learn a language and absorb some additional knowledge about another culture that can help her to do her job even better.
     This reasoning is, I think, quite sound, up to a point; indeed, as a matter both of kindness and good business planning, an employer should cut more slack to an employee who had done a great job for years. But the point of my original post was that not all unfair behavior is illegal, in the employment relationship or outside it.

     I say it again: Not all unfair behavior is illegal. And our economy would be in real trouble if it was, because making unfair behavior illegal means making illegal any behavior that some jury will eventually find to be unfair. That would be some jury composed more of employees than employers, and some jury that -- because of basic human nature -- will sympathize more with the visible plaintiff who lost her job than with the coworkers or customers or stockholders who might be hurt by the plaintiff's (or other employees') lack of skill.

     The result would be the same you-can't-fire-anyone situation that we see in many government bureaucracies. This would in turn lead to a situation where other employees know that they can't be fired, and therefore act accordingly. And that would lead to harm not just to the employer, but to all of us who might be the employer's clients.

     All this is the reasoning behind the "employment at will" doctrine -- the rule that (setting aside some very specific forbidden grounds for discrimination, and setting aside cases where the employee has a long-term employment contract) an employee may quit at any time and an employer may dismiss an employee at any time. The doctrine may seem harsh, but it's vitally important.

     Yes, it often lets employers behave unfairly. But the alternative, which is letting government entities, whether juries or regulatory bureaucracies, decide which requirements are fair and which aren't, is both unfair to employers and harmful to customers. And, for private businesses that have to face competition, especially from overseas, the inefficiencies that it creates may ultimately lead to bankruptcy and a loss of all the employees' jobs. We've already departed in many ways from pure employment-at-will; but what's left of the doctrine remains quite important, and should be preserved.

     This argument has seemingly gone far from the fate of this particular employee, and the reasonable points suggested by our correspondent. But the connection is actually quite close.

 &nbps;   You can't just come up with an exception from employment-at-will for requirements that people learn a language: If employer decisions here can be second-guessed, they can equally be second-guessed with regard to any new requirements that employers impose. Employers would be increasingly denied necessary flexibility, and would be increasingly stuck with employees they hire, even if the employees prove to be unsuited to changing circumstances.

     If a jury could perfectly sort the unfair and excessive new requirements from the fair and reasonable ones, that would be fine -- but there's absolutely no reason to trust juries to be able to do that. And the consequences, again, would be worse service (and product quality) for customers; and eventually, in the private sector, worse conditions for employees, as the increasingly inefficient employers lose market share to more efficient overseas competitors.

     Finally, let me touch on the question that many of you have probably been asking: Who am I, a tenured university professor, to sing the praises of employment at will? Well, I'll tell you -- whatever the merits of the arguments that tenure is needed to preserve academic freedom (a plausible argument, though not an open-and-shut one), no-one should ever utter the terms "efficient" and "university department" in one breath. If our nation's industries, or even government agencies, are ever reduced to having the productivity of the average academic department, I'll be moving to some richer country, like Bangladesh.


MORE ON THE TWO TOWERS: I am happy to report that the petition to have the name of the Tolkien "Two Towers" movie changed appears to be a hoax; Lane McFadden has a long and interesting post about this. Now for all I know the claim that it's a hoax might itself be a hoax; who can tell these days? (Or, for that matter, in any days past -- hoaxes aren't an invention of the Internet Age.) Still, I thought I'd pass the theory along, so you could decide for youselves. My original post pointed out that many of the petition "signatures" were pretty clearly from opponents of the petition, so "there may actually be very few people who were dopey enough to actually agree with the petition's authors" -- sounds like even the petition's authors might not agree with the petition's authors!

Friday, May 10, 2002


CHALKING THE SIDEWALK: The University of New Hampshire student newspaper reports:
More than half a dozen messages written in chalk were discovered over the weekend on buildings, sidewalks and other locations around campus. Student organizations and other groups usually use chalk messages for advertising purposes, but the content of the messages found over the weekend has left some feeling uneasy.

     Messages like “Abortion really tickles!” written next to a picture of a coat hanger, along with “It’s not rape if they’re dead,” and “Pedophiles are people too” were found. There was also a sketch of a Swastika and “Osama = rad” among others that have been found on the side and back walls of the MUB, sidewalks on the way to the library, Philbrook dining hall and the upper quad. . . .

     Dean said that the act of chalking itself was not illegal, and pointed out that many student organizations use chalking as a way to advertise their events.

     “The chalking itself certainly isn’t a crime,” he said. “You can pour water on it, and it’s gone. If it involves a hateful message, then it’s something [the UNH police department] would be concerned with.”

     Dean said that if the messages are deemed to be hateful and directed at a certain person or group, the UNH Police Department would begin an investigation. . . .

     Vice President of Student Affairs Leila Moore . . . was very concerned.

     “This is totally unacceptable behavior,” she said. “It is not okay in our community.”

     Moore said she was surprised that the chalkings had not been reported over the weekend, and said that the offensive pictures and language could easily affect people on campus in very negative ways.

     “This is not going to be tolerated,” she said, in regard to the chalkings that appeared on various areas of campus this past weekend.

     According to Moore, the chalkings qualify as defacement of property and harassing and intimidating behavior, both of which are violations of the UNH Student Code of Conduct. She said that if any leads were discovered as to whom is responsible for the messages, UNH would press charges. . . .
     Seems to me that if chalking isn't illegal, and has generally been allowed on university property ("Student organizations and other groups usually use chalk messages for advertising purposes"), then the chalkers were well within their First Amendment rights, at least until the messages included, say, death threats, false statements of fact, or other constitutionally unprotected speech.

     First Amendment law is pretty clear: It protects "hateful messages" as much as loving messages, and it contains no general exception for speech that "could easily affect people on campus in very negative ways." I would have thought that a university vice president would have been aware of that.

     Of course a university would be free to set up a general rule, applicable to all student speech regardless of content, barring chalking of buildings. It might even be able to bar chalking sidewalks, though I'm not sure about that. But nothing in the article suggests that any such content-neutral rule is in play here -- according to the article, the university is trying to punish the speech precisely because of its content.


THE TROUBLE WITH INTERNATIONAL LAW: I don't always agree with Dahlia Lithwick, but, damn, when she's on, she really is on.


THE GREAT CLONING DEBATE: An interesting overview of the debate from The Economist. The article quotes an earlier post from this very Web log, which is naturally quite flattering -- and also shows the potential power of blogging.

     The Economist is a very well-regarded publication. To my knowledge, I have very few personal contacts there. I haven't written any op-eds on the subject. This blog has only a couple of thousand readers daily. And yet someone saw the post, and decided it was worth quoting. Further evidence that bloggers (and not just superstars like Glenn Reynolds, Mickey Kaus, and Andrew Sullivan) are being taken seriously, and that blogging has become a serious medium for spreading ideas.


GUN REGISTRATION: Rand Simberg has an interesting post about gun registration, responding in my part to my Wall Street Journal op-ed; the key point, I think, is that
Even with a formally-recognized right to own guns, many will still view registration as a potential prelude to a rapid and preemptive confiscation, because any government that contemplates confiscating guns is likely to be indifferent to Constitutional concerns.
Reader Byron Matthews made what I take it is a similar point. (Note also that the registration / confiscation slippery slope plays an important role in my The Mechanisms of the Slippery Slope article.)

     Nonetheless, I stand by my prediction, a claim about what will happen rather than about what should happen: I think that if an individual right to own guns is firmly recognized, this will substantially diminish (though not eliminate) the opposition to intermediate proposals, such as registration.

     I certainly may be wrong on this. Still, my sense is that there are quite a few people out there who are worried about lawfully implemented gun bans, but not really that worried, at this stage in American history, about massive governmental lawlessness. And if I'm right, those people might (wisely or foolishly) prove to be a swing vote in support of various proposals like gun registration, if the acceptance of an individual right to bear arms can reassure them that the chances of confiscation are rather remote. Recall that even in many relatively pro-gun states, there's considerable support for quite a few modest gun restrictions; bringing around even a moderate-sized swing group of voters can make a difference (again, for good or for ill).


IS MONEY SPEECH? As promised, here's a little item on this subject that I once wrote up but ended up not publishing:
     The debate about campaign finance reform and the First Amendment, people often say, turns on whether money is speech.

     Ignore them. Even by the low standards of political catchphrases, “money is speech” and “money isn’t speech” are both remarkably unhelpful.

     First, some background: Campaign finance laws are generally about two kinds of activity -- contributions and expenditures. Some provisions restrict people’s contributions of money to candidates, parties, or political action committees. Others restrict the ability of various entities (candidates, campaigns, for-profit corporations, nonprofit corporations, or individuals) to spend money to buy ads or otherwise spread their views.

     The Federal Election Campaign Act of 1974 limited both contributions and independent expenditures, in various ways. The Supreme Court’s 1976 Buckley v. Valeo decision upheld FECA’s limit of $1000 per contribution to a candidate, but struck down the limits on expenditures by a candidate himself, by the entire campaign, or by individuals independently of the campaign. Subsequent proposals have been enacted in the shadow of this decision; the Shays-Meehan proposal recently passed by the House is much narrower than FECA, precisely because Buckley is on the books.

     Why did the Court decide the way it did? Most certainly not because money is speech. Consider a few analogies:
  • The Sixth Amendment secures criminal defendants’ right to have a lawyer.

  • The Supreme Court has held (rightly or wrongly) that people have a right to use contraceptives and get abortions.

  • The Court has also held that people have a right to send their kids to a private school.

  • The First Amendment protects a publisher's right to publish a magazine.
     Now imagine that Congress passed a law barring people from spending their money on hiring lawyers, buying contraceptives, getting abortions, paying for private educations, or paying authors to write columns for magazines. Constitutional?

     Of course not, but not because “money is lawyering,” “money is contraception,” “money is an abortion,” “money is a math class,” or “money is speech.” The law would be struck down because restricting your ability to, for instance, spend money to get an abortion is an abortion restriction, and not just a spending restriction:
  1. The law on its face singles out a constitutional right for special burden: It lets you spend your money on other things -- but not on exercising your right.

  2. And the law in practice makes it much harder to exercise the right: In a market economy, accomplishing something that requires someone else’s help usually requires your paying for the help.
     Likewise for the First Amendment and speech about political candidates. When Congress said in 1974 “you may not spend more than $1000 to support or oppose a candidate,” it made it illegal for you to, for instance, buy a newspaper ad expressing your opinion that candidate X is a fool and should be defeated.

     The law wasn’t just a spending restriction. It was also a speech restriction, because it restricted your use of money to speak. (If you want another analogy, imagine a law that barred candidates from flying places in order to give campaign speeches. The law would be unconstitutional -- not because “flying is speech,” but because campaign speeches are speech, and limiting flying to give campaign speeches is thus a speech restriction.)

     Contributions are a bit more complex, because when you contribute money to a candidate, you aren’t spending the money to express your own message. But long before Buckley, the Court recognized that many people can often express their views effectively only by pooling their resources.

     The Court therefore concluded that the First Amendment protects your right to give money to a speaker with whom you agree -- whether it’s the NAACP or the Joe Schmoe for Senator Campaign -- so that the speaker can spend this money to convey its message (which you would presumably generally endorse, even if you didn’t explicitly select the message yourself). This is called the “freedom of expressive association,” and though it doesn’t appear in the text of the First Amendment, liberal and conservative Justices alike have long conceded that it is necessary to make free speech truly effective.

     Likewise, liberal and conservative Justices alike -- from Brennan and Marshall and most recently Breyer to Rehnquist and Scalia -- have recognized that restricting the use of money for contributions and expenditures equals restricting expressive association and speech. Of the 16 Justices that have sat on the Court since Buckley was decided, only two (Stevens and White) have rejected this conclusion.

     All this of course leaves the question whether these restrictions are nonetheless constitutionally permissible, despite the burden they place on speech and expressive association. Buckley, for instance, concluded that the need to prevent tacit bribery justified contribution limits but not expenditure limits (a position with which I agree, at least as a constitutional matter); and some people argue that even expenditure limits are needed either to prevent corruption or to help equalize people’s political power.

     On the other hand, others point out that The New Republic or The New York Times is entitled to use its money to opine in favor of a candidate, and that an editorial or a puff piece is worth many thousands of dollars under any sane accounting system. All of us, they reason, should be equally free to use our money to rent space in that same publication to express our own views, or to merge our resources with the candidate to help him express his views.

     This is a difficult debate, and one that’s outside my focus here. But the slogans “money is speech” and “money isn’t speech” obscure this debate more than they advance it.


AMENDMENTS: My friend Tom Kaufman, whose Republicans-get-three-votes proposal I regretfully rejected a few days ago, writes back with the following:
Hi Eugene,

I am most disturbed at your disqualification of my proposed amendment. The disappointment is not from the disqualification itself but from the Harry-Blackmun-in-Roe-v-Wade manner in which you deemed my amendment inappropriate without any solid textual basis for the ruling. You set forth specific rules for what would be an appropriate amendment, and I recall that the only restriction was that it could not change the rules of amendment to prevent itself from being repealed. Is this rule about “no altering the balance of power between the Repubs and Democrats” something that emanated from the penumbra of that original rule? . . .

In short, I seek reconsideration of the disqualification of my amendment. I don’t know what your original intent was, but my amendment certainly fell within the plain meaning of the contest rules.
Tom, one word: Unconstrained-Dictatorial-Editorial-Discretion-Man! You have your superpower, I have mine.


INTERNATIONAL CRIMINAL COURT: Why Israel should withdraw from the International Criminal Court, by Eugene Kontorovich, is much worth reading.


GOOGLE: Many of you may have already noticed, but Google has a cool logo-of-the-day, to mark Salvador Dali's birthday. (Thanks to my friend Haym Hirsh for the tip.)


SOUND BITES: A bumper sticker I just saw reminded me of one of the most effective ads I've seen -- it was for a lawyer who defended accused drunk drivers, and it said "Friends Don't Let Friends Plead Guilty."

     I'm not sure I agree with the sentiment, either as an ethical matter or a pragmatic matter; but I think the ad did a first-rate job of conveying its message: It was (1) short, (2) persuasive, (3) fairly honest (even if morally controversial), and (4) catchy -- everything a sound-bite should be.

     People knock sound-bites, and I understand the reasoning: Anything said in one short phrase is guaranteed to be an oversimplification. But in a world of busy people with necessarily limited attention spans -- a world of "rational ignorance," as economists put it -- you absolutely have to make your point quickly. The sound-bite is thus a tremendously important tool; all would-be opinion-molders need to master it.


POLITICO SUPPORTING THE OTHER SIDE: The American Prospect thinks it's found an inconsistency in the Republican stand on free speech:
FREE SPEECH, GOP STYLE. Apparently there was quite the brouhaha at the White House over the fact that George W. Bush's chief media advisor, Mark McKinnon, gave some big money to Texas's Democratic nominee for the Senate Ron Kirk. Now, McKinnon is backpedaling, saying the contribution to Kirk sent the wrong signal about where his loyalties lay and that he's really a Bush man. All of this has Tapped confused. If money equals speech, as Republicans like to claim, then isn't McKinnon in some pretty serious free speech jeopardy here?
     I hope to say a few words on the "money equals speech" line (which, in my view, is quite the wrong way to characterize the campaign finance debates) later, but even setting this aside, I don't get the problem. Many Republicans (and Justices Brennan, Marshall, and many others) believe that contributing money to a political cause is protected, at least in some measure, by the First Amendment, so the government shouldn't outlaw this.

     But lots of constitutionally protected speech can properly get you fired from party office, or even a high-level government job. If your own politicos are supporting the other side -- through what they say or through their contributions -- there's nothing unconstitutional or inconsistent about your starting a "brouhaha" over it.

     TAPpers, you believe in free speech, right? If Clinton's chief media advisor had engaged in speech supporting a Republican Senate candidate, do you think Clinton would have had cause to doubt his loyalty to the Democratic party (especially when the Senate was very closely divided)? Would there be anything contradictory about your saying both "The government shouldn't restrict our speech" and "The Administration can demand political loyalty from its high-level political advisors"? I don't think so; and neither is there any contradiction on the Republican side here.


MY WALL STREET JOURNAL OP-ED on the Second Amendment is now up. Citations and links available below.


TWO TOWERS: My former student Mike Lopez, not a man to mince words, writes "ANYTHING you can come up with as far as idiocy and lunacy, I can top with this," and links to this MSNBC piece:
Is ‘Two Towers’ title insensitive?

Some movie fans are blasting the next “Lord of the Rings” flick, charging that it exploits the World Trade Center tragedy. The next installment in the series is called “The Two Towers,” and a group calling itself Those Affected by September 11 is petitioning director Peter Jackson and studio New Line Cinema to change the name “to something less offensive.”

“The title is clearly meant to refer to the attacks on The World Trade Center,” notes the petition posted at and signed by more than 1,200 people. “It is unforgivable that this should be allowed to happen.”

The title is actually the name of the second book in the J.R.R. Tolkien trilogy on which the films are based, but even when this was pointed out to the petitioners, they maintained that the title of the film should still be changed. . . .
Actually, the MSNBC article has some more goodies after that -- worth a read. Note, though, that a quick check of the petition "signatures" suggests that there may actually be very few people who were dopey enough to actually agree with the petition's authors.


TRAFFIC: Since I started measuring it last week, weekday traffic has varied from 1300 to 2100 (25 to 40 millipundits), but yesterday (Thursday) saw a spike to 3600.


HOW THE TIMES DISTORTED JENIN: A very interesting article; thanks to The Weekly Standard for the link.


EUCLID THEORIES: My favorites are from reader Michael Gebert:
1. Grand theory: Euclid wasn't just a mathematician, he invented geometry, which is dear to the hearts of surveyors or whoever lays out streets. . . .

2. Piddly theory: it just caught on as a typical thing to name streets. Why are there so many Elms and Maples, fewer Walnuts and Chestnuts, and next to no Spruces or Yews? For that matter, why are so many streets named for trees and not, say, flowers or reptiles or the four humours?
Theory #2 (the part about the trees, not the part about the four humours) actually has some interesting connections to thinking about path-dependence -- sometimes one small blip ends up snowballing into a pattern, with not much reason beyond that.

Thursday, May 09, 2002


FOOTNOTES ON MY WALL STREET JOURNAL SECOND AMENDMENT OP-ED: In the future, all newspapers, or at least their Web sites, will insist that their authors provide links to sources on which they rely -- or at least allow authors to do this. Unfortunately, for now, I have to provide these links here, rather than in my Wall Street Journal / piece (though thanks to opinionjournal for linking to this post). Here they are:
  1. People calling Ashcroft "radical" for his stance: See the L.A. Times ("scholars and gun-control advocates said they were alarmed because they believe the 'radical' shift in position threatens to undermine a wide range of gun laws already on the books"); Violence Policy Center, VPC: Ashcroft Decision Cloaked in Secrecy, U.S. NEWSWIRE, Aug. 2, 2001 ("the VPC['s] . . . 'Shot Full of Holes: Deconstructing John Ashcroft's Second Amendment' . . . exposes Ashcroft's Second Amendment letter as a shoddy piece of legal and historical research that fails to support its radical 'individual rights' conclusion").

  2. Violence Policy Center being anti-gun: See, e.g., Josh Sugarmann (executive director of the Violence Policy Center), Dispense With the Half Steps and Ban Killing Machines, Houston Chronicle, Nov. 5, 1999, at 45 ("A gun-control movement worthy of the name would insist that President Clinton move beyond his proposals for controls . . . and immediately call on Congress to pass far-reaching industry regulation like the Firearms Safety and Consumer Protection Act . . . [which] would give the Treasury Department health and safety authority over the gun industry, and any rational regulator with that authority would ban handguns."); Violence Policy Center, Ban Handguns Now.

  3. Quotes from the Violence Policy Center: Linda Greenhouse, U.S., in a Shift, Tells Justices Citizens Have a Right to Guns, N.Y. Times, May 8, 2002 (registration required).

  4. Joseph Story.

  5. Thomas Cooley.

  6. William Blackstone.

  7. Framing-era documents confirming the individual rights view: See the discussion of the state calls for proposed constitutional amendments, as well as of the right to bear arms provisions in state constitutions, in this congressional testimony.

  8. Militia Act of 1792.

  9. Militia Act of 1956 (the currently effective one).

  10. "Virtually no court or commentator . . ." See David Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359.

  11. Firearms Owners' Protection Act. See Pub. L. 99-308 sec. 1(b), printed at 18 U.S.C. § 921 Statutory Note ("The Congress finds that the rights of citizens to keep and bear arms under the second amendment to the United States Constitution . . . require additional legislation to correct existing firearms statutes and enforcement policies; and additional legislation is required to reaffirm the intent of the Congress . . . that 'it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap-shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.'").

  12. Humphrey and Kennedy: See Senator Hubert H. Humphrey, Know Your Lawmakers, Guns, Feb. 1960, at 4 ("Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to bear arms."); John F. Kennedy, Know Your Lawmakers, Guns, April 1960, at 4 (discussing "the right of each citizen 'to keep and bear arms'").

  13. Supreme Court cases. See also David Kopel, 18 St. Louis University Public Law Review 99 (1999).

  14. United States v. Miller.

  15. State constitutions: Sorted by state and by date.

  16. D.C. gun ban: D.C. Code §§ 6-2311, 6-2312, 6-2372.

  17. D.C. Court of Appeals case upholding the gun ban: Sandidge v. United States, 520 A.2d 1057 (1987).

  18. "May actually facilitate the enactment of modest gun controls:" I first got this idea from Bob Cottrol, see Robert Cottrol & Raymond Diamond, Second Amendment Cannot Be Ignored, American Lawyer, May 27, 1991, at 24 (“If the courts were to send [a] . . . strong signal, backed by the legal profession and civil-liberties organizations, that they intended to enforce the Second Amendment, then gun-control measures could be debated on the utility of proposed measures and without the fear that gun-control measures are steps toward ultimate prohibition.”). See also Wendy Kaminer, Gun Shy, American Prospect, Jan. 28, 2002 (“Consider the practical and political benefits of recognizing a basic right to own a gun. . . . [O]pposition to gun controls might decrease if gun owners did not fear that every restriction on their rights was leading down a slippery slope toward prohibition. . . . To restrict gun rights effectively, we may first have to acknowledge that they exist.”).


SUNSETS: Just getting back to going through the submissions (116 so far -- this is proving to be a popular item!).

     One surprise for me: The most common suggestion, mentioned by seven people (John Allison, Robert Racansky, Paul Sand, Rand Simberg, Michael Williams, Ross Nordeen, and Neel Krishnaswami), wasn't gun rights or repeal of the Sixteenth Amendment or term limits (though all had their partisans), but rather a "sunsetting" requirement for legislation.

     Sunsetting provisions, of course, mandate that legislation expire a certain number of years after it's enacted; then, if Congress wants to renew the law, it would affirmatively have to reenact it, and get it signed by the President or override the President's veto. And since reenacting a law requires a broader consensus than just retaining an existing law would, this might well have end up both generally reducing the volume of legislation that's in effect, and especially reducing possibly obsolete legislation. An intriguing and sophisticated idea; I'm not sure whether it would work out, but it might well be promising.


FACTOID: Prompted by one of the amendment proposals someone e-mailed me, I checked into what fraction of the U.S. population were foreign-born. Answer, from table 45 of the 2001 Statistical Abstract of the U.S. (via Laura Cadra, one of our absolutely first-rate research librarians here at UCLA Law): About 10%. The total is 28.4M, 10.6M naturalized (like me!) and 17.8M unnaturalized, including supposedly illegal aliens, though of course one can't tell that for sure. The overall U.S. population is 281M.


NON-PORNOGRAPHIC PICTURES OF CHILDREN: The always excellent Declan McCullagh has an interesting WiredNews article on a proposed ban on the sales of some non-pornographic pictures of children.


MATHEMATICIANS: Andrew Sullivan's posts about his dog Euclid -- so named, if I recall correctly, because he found her on a street with that name -- reminded me of a question that long puzzled me: Why are there so many streets named after Euclid, of all people? Sure, he was a great mathematicians, but where are all the Fermat Avenues? The Pascal Streets? The Bernoulli Boulevards?

     Euclid Streets, though, are all over the place; and they're pretty much the only context in which Americans have chosen to immortalize a great mathematician. Oh, except, of course, the late Houston Eulers.


VERY IMPORTANT LEGAL CLAIM: From a federal district court decision in DeKoven, aka ‘Messiah-God’ v. various parties, including the Masons, the United States, the U.K., Michigan, Aish Ha Torah, and Israel:
Before the Court is plaintiff’s complaint seeking relief from a variety of governmental and non-governmental entities for wrongs committed against the plaintiff, Chad Gabriel DeKoven, a/k/a Messiah-God #145274, due to the failure of these defendants to acknowledge, accept and act on plaintiff’s claim that he is the “God-Messiah” of the Holy Bible. The plaintiff is presently a prisoner at the Standish Maximum Correctional Facility in Standish, Michigan. . . .

     [Plaintiff requests various sorts of relief, but i]n the alternative, plaintiff requests that the United States government give plaintiff various material things, including 600 million metric tons of .995 fine gold; 25 billion metric tons of refined steel; 50 million metric tons of refined copper; 250 million metric tons of refined silver; and various animals, including 500 pairs each of mature breeding lake trout, northern pike, small mouth and large mouth bass, perch, coho, brown trout, speckled trout, blue catfish, channel catfish, sturgeon, rock bass, bluegill, sunfish, and salmon; 5 million breeding pairs of bison; 500 million mature breeding pairs of each species of crab and mollusk that inhabit the waters in the borders of the United States; and 45 million trees of various varieties at least the age of 50 years old.
At least we know this god isn’t the omnipotent kind . . . . (Thanks to D.R. Ginsburg for the pointer.)


TALK OF THE NATION RECAP: Really enjoyed doing show, and Akhil was very good, as always -- it’s a pleasure talking to him, even when we disagree.

     I much respect Nina Totenberg, but I think her brief summary of the subject didn’t really do it justice. She strongly suggested that the Supreme Court in United States v. Miller (1939) endorsed the states’ rights view of the Second Amendment; but though the Court did say that the right of the people was tied to the preservation of the militia, it also made clear that the militia wasn’t just a National Guard or some other small state-run army, but “all males physically capable of acting in concert for the common defense.” So the right is connected to an armed citizenry, not armed states or armed National Guards -- an important point that Totenberg should have acknowledged, but didn’t. She also suggested that the great majority of scholarship on the subject supports the states’ right view; that’s just not so.

     Matt Nosanchuk, of the Violence Policy Center, who was on for just a few minutes, was quite rhetorically effective, though I didn’t agree with his arguments. His main thrust was that the Justice Department is acting irresponsibly in asserting an individual right that might eventually frustrate the enforcement of some federal gun laws. I don’t buy it: Prosecutors should acknowledge that there are constitutional limits on their power, though they can still argue that the existing laws that they enforce are within those limits. But Nosanchuk knew his message, and stayed on-message.

     The NRA spokeswoman, unfortunately, struck me as much less effective. When you have just a few minutes, you have to find a simple point to make, and use each question as an opportunity to make the point. Of course, you need to answer the questions, but one can always do t at in a way that returns to one’s main point. The spokeswoman didn’t do that; instead, she just responded passively, and not very effectively, to the questions.

     I’ve often heard that the NRA is great at organizing the true believers, but not so good at speaking to the public. This experience seems to support that view. Too bad.

UPDATE: The program is available in RealAudio; thanks to Will Middelaer for the link.


TALK OF THE NATION LISTENERS: Here's a written summary of my argument (based largely on my congressional testimony on this), with links to the original sources.

Here's a page with just the original sources, including Blackstone, Story, Cooley, contemporaneous state right to bear arms provisions, state calls for a federal right to bear arms provision, the 1792 Militia Act, the currently effective (1956) Militia Act, the Supreme Court cases, and more.

Here's the list of state constitutional right to bear arms provisions, sorted by date.


TALK OF THE NATION (11 am Pacific today): I'm told I'll be up against Akhil Amar, a Yale constitutional law professor whom I much like and much enjoy debating with. Steve Inskeep will be moderating, and Nina Totenberg will be providing a brief overview at the start, apparently followed by brief comments from activists on both sides. Should be an interesting hour!

Wednesday, May 08, 2002


THE AMENDMENTS KEEP COMING: Over 90 messages so far, with probably about 100 amendments in total (a few people are double-dipping); please keep submitting. I've been swamped today with the Second Amendment news item, plus a few other things, but I'll get back to this topic in the next day or two.


DISCRIMINATION AGAINST BLACKS: Check out this Nat Hentoff piece on a lawprofs' boycott of Justice Thomas's visit to their law school. Of course, the professors had every right to stay away; but I was rather troubled by the racial double standard to which they freely admitted:
[O]ne of the professors, told Tony Mauro, the Supreme Court reporter for "Legal Times": "`We just questioned whether breaking bread with a justice was the appropriate thing for us to do.''

     After all, she continued, the only black justice on the court has "lent cover'' to his conservative colleagues by joining their "anti-progressive'' decisions. "Since we are all black,'' said Yarbrough, "we did not want to lend cover to him. We have welcomed justices we disagree with, such as Antonin Scalia and Sandra Day O'Connor.'' However, joining Thomas, she explained, would have been seen as an endorsement, or at least a tacit approval, of his views.
So this law professor is saying that she refuses to extend to black conservatives the same openness that they extend to white conservatives; had Thomas been white, she'd have gone to listen to him, but since he's black, she won't. Sounds like race discrimination to me.


JEFFERSON: Slate has a nice-sounding short summary piece about the Thomas Jefferson / Sally Hemings controversy. Note, though, that this is one of the many subjects on which I'm rationally ignorant, so far all I know this article might be total bunk; one never knows with these sorts of controversies unless one has invested much more effort than I'm planning to . . . .


BRILLIANT REASONING: Just got an e-mail from a "Sam Thomas" with the Subject line "NRA" and the text consisting entirely of:
You're a dick. Stop being such a dick. Stop hurting people. Deep down, you must be so ashamed of yourself.
OK, if you say so.


DISCRIMINATION AGAINST PEOPLE WHO CAN'T SPEAK SPANISH: Check out this outraged report, courtesy of a Florida TV station. (I got a call from a local radio station about this; apparently the story went out nationwide through Matt Drudge.)

     Now maybe the "you must know Spanish" requirement was just a pretext, and the employer (the Miami-Dade County Domestic Violence Unit) just wanted to get rid of the Anglo employee because she was Anglo -- if that's so, then that is discrimination based on ethnicity, and illegal.

     But being able to speak a foreign language is often a perfectly legitimate job qualification, just like knowing how to use a particular computer program, or having any other valuable skill set. If an office has lots of non-English-speaking clients, it's quite legal for management to insist that their employees be able to communicate effectively with them.

     This may or may not be a sound government policy, depending on the circumstances. But if the agency chooses that as its policy, there's no law to stop it -- nor should there be.

UPDATE: Looks like I'll be talking about this on the Larry Elder Show, KABC-AM (790), here in Los Angeles at 4:30 pm (just a couple of minutes from now).


TALK OF THE NATION: NPR's Talk of the Nation tells me that they'll be doing an hour on the Second Amendment tomorrow (Thursday) at 11 am Pacific, and I should be on that (though, again, no promises!). By the way, for a quick sense of my views on the matter, here's a short and pretty accurate summary from an AP wire story:
. . ."They're presenting a very slanted view . . . and they haven't thought through the implications of their own position," said Mathew Nosanchuk, litigation director for the pro-gun control Violence Policy Center.

     Nonsense, countered Eugene Volokh, a conservative UCLA law professor who has an online archive of historical documents related to the issue.

     The idea of collective, state-controlled gun rights is a concoction of the mid- to late 20th century and the push for federal gun control that began in earnest in the 1960s, Volokh said.

     Recent scholarship has rediscovered the much older view, rooted in 18th century notions, that the amendment does refer to individuals, Volokh said.

     "Several things come together . . . that led the administration to take this step," Volokh said. "The final thing is this is a Justice Department of an administration that does believe in an individual right to bear arms."
     Oh, and the AP Web story includes at the end a link to the blog and my Sources on the Second Amendment page, alongside a link to the Violence Policy Center site -- again, another strength of the Web compared to print.


OP-ED: Good chance that I'll have an op-ed on the Second Amendment out Friday, though, once again, you never can tell in the news biz. When I do have it out, I'll certainly blog a link, but I'll also blog links to all the sources that I cite -- one way the Net really is much better than print.


The National Rifle Assn. applauded the Justice Department's stance, but scholars and gun-control advocates said they were alarmed because they believe the "radical" shift in position threatens to undermine a wide range of gun laws already on the books
but nowhere suggests that some scholars -- say, maybe Harvard's Larry Tribe or Texas's Sandy Levinson, both top liberal constitutional experts -- might not think this position is so alarming or radical.

     And which outside commentators does the Times go on to quote? Franklin Zimring, an anti-gun professor; Chris Cox, from the NRA; Mathew Nosanchuk of the Violence Policy Center, an anti-gun group; and Michael Barnes of the Brady Center to Prevent Gun Violence, an anti-gun group. Might it have been better to provide a bit more balance?


SECOND AMENDMENT: The right to bear arms is in the news again, now that the Justice Department has officially taken the view (in briefs filed with the Supreme Court) that the Second Amendment secures an individual right.

     If you want to read up on this issue for yourself, check out:
  1. The original sources that I've collected on the Second Amendment -- quotes from the leading commentators of the late 1700s and 1800s, the text of coordinate state constitutional provisions, the text of virtually all the Supreme Court cases that even tangentially mention the Second Amendment, and a variety of other sources.
  2. My summary of the argument for the individual rights interpretation of the Amendment (drawn from my Senate subcommittee testimony on the subject).
  3. The Brady Campaign's summary of the argument for the states' rights interpretation of the Amendment.


COPYRIGHT CRIMES: Nice Lawmeme gag on the Top Ten New Copyright Crimes (thanks to Slate for the link). I don't agree with all their substantive arguments that follow the joke, but the joke is amusing and incisive.

     But always remember, and never forget -- it's "copyrighted," not "copywritten," even if you're CEO of Turner Broadcasting.

Tuesday, May 07, 2002


UNINTENDED CONSEQUENCES, PART ONE: Two people separately proposed two closely related suggestions: When a law is struck down as unconstitutional, one suggested, "the legislators who sponsored the bill in question . . . shall be considered to have violated their oaths . . . to support the Constitution . . . . These legislators shall be barred from holding any public office of the United States or any state governments . . . and shall be immediately removed from any public offices they currently hold." The other proposal would apply a similar principle to any legislator or President who votes for or signs three unconstitutional federal laws.

     These are intriguing proposals, and one of them was particularly thoughtfully defended. One obvious problem with them is that they might be unfair to legislators, since sometimes whether something is constitutional is a close call -- consider the number of 5-4 Supreme Court decisions -- and they might also overdeter legislators, who won't propose even likely constitutionally sound laws if they think there's some chance that they might lose their jobs as a result. The proposer, to her credit, acknowledged this, but suggested that this sort of excess caution might actually be good. (As you might gather, the proposer is a staunch libertarian.)

     The less obvious problem is that these proposals might actually be highly antilibertarian in operation. First, what effect will they have on judges' decisions? Some judges might be uninfluenced by the new side effect of their judgments. A few others might strike down some laws precisely because they want to ruin the careers of their authors.

     But the far greater tendency, I think, would be for judges to refrain from striking down laws even in many cases where they think the law may be unconstitutional. People are generally quite reluctant to destroy the careers of specific identified people; but imagine what would happen if a judge is faced with a bill that's written by someone he knows personally, or maybe even a Senator who helped the judge win a tough confirmation battle. Today, the judge can vote to strike the law down, and think that it's no big deal -- nothing personal. Would judges be as willing to do that if their acquaintances', friends', or past patrons' careers may be riding on it?

     Or say that the sponsor of the bill is running for President, and the judge's decision will lead to his being disqualified from the office -- or maybe he has already won the Presidency and is serving in that office, and the judge's decision will lead to his being removed. Few judges would have their votes be entirely uninfluenced (in one or the other direction) by this consequence.

     This actually relates to one common criticism of the exclusionary rule in Fourth Amendment cases: When judges know that finding a search to be unconstitutional may well let a criminal go free, they err on the side of not finding such unconstitutionality. But if the case isn't about exclusion of reliable evidence, but about making the police pay damages, the incentive to find the search constitutional is smaller. A seemingly prolibertarian procedural rule may thus lead the law to develop in antilibertarian substantive directions. I'm not sure how sound this reasoning is as to the Fourth Amendment, but I do think it would apply to the remove-the-bastards proposal.

     I say all this largely because it seems to me such an interesting illustration of unintended consequences. Here we have an interesting, thoughtful proposal that understandably expresses people's outrage at politicians flouting the Constitution with impunity -- but that might actually lead to a weakening of constitutional protections.

     But the most dangerous antilibertarian unintended consequence goes deeper still: If this proposal is adopted, what do you think would be the single most important quality that politicians will look for in screening judicial nominees?


ONE PROCEDURAL NOTE: If you want to submit multiple proposals, please do that in separate e-mails (though if you've already submitted several in one e-mail, please don't resubmit them). Otherwise, it becomes hard for me to organize them properly.


A THIRD, before I get back to the serious stuff (well, as serious as this contest gets): From Paul Kinkel, a one-term limitation for Vice Presidents. "Yeah, it's a small amendment, but let's make ticket selection interesting . . . . This enhances the entertainment value of a dull office."


ANOTHER ONE, also from a friend of mine, Donna Matias: "Congress shall make no law." Period. Well, then! That would be quite a change.


A PROPOSED AMENDMENT I LIKE, from my friend Tom Kaufman: "On all votes involving legislation directly concering federal taxation, members of Congress from the Republican party would be entitled to three votes while members of other parties . . . would be entitled to only one vote." This is followed by a very nicely realpolitik explanation of why it's a good idea, why it won't be repealed, and how to avoid the amendment's being frustrated by people infiltrating the Republicans.

     Out of surfeit of foolish fair-mindedness, I have to regretfully disqualify this entry, and remove the submitter's Superpower License -- but I like your thinking, Tom . . . .


I AM NOT A MEDIA WHORE: I like to talk to the media, both print reporters and radio and TV, and do a good bit of it; so a friend of mine told me that I was a media whore. And then it dawned on me: I, and most of my academic colleagues who do these things, are not media whores. We're media sluts -- whores get paid.


AMENDMENTS: Over 65 submitted, including some quite interesting ones -- keep them coming! I hope to post some thoughts about another class of submissions later tonight.


COPYRIGHT FOREVER: I'm off to Warner Brothers to debate my former boss, the inimitable Judge Alex Kozinski, about the Sonny Bono Copyright Term Extension Act -- the Supreme Court will be considering its constitutionality soon in Eldred v. Ashcroft. I'm not completely sure that the law ought to be struck down, but that's the position I'm taking in the debate.

     A bit of background: In the 1790s, the first U.S. Copyright Act gave copyright owners protection for 14 years, extendable by 14 more years. (Recall that the Constitution authorizes Congress to secure copyrights and patents only for "limited Times.") In 1909, this was extended to 28 years plus 28 years. In 1978, this was extended to the life of the author plus 50 years for new works, and 75 years for pre-1978 works. And the 1998 Act, a pet project of Sonny Bono's passed shortly after his death, extended this to life plus 70 or 95 years.

     My position in the debate is that the retroactive portion of the Act, which lengthens protection for already-created works, exceeds Congress's power under the Copyright/Patent Clause. The Clause gives Congress the power to protect works in order to promote progress by proviidng an incentive to create -- and there can be no incentive to create works that have already been created. For the same reason, I argue, the Act violates the First Amendment, since it restricts people's right to create new works based on old ones, and to reprint old ones, without the compensating benefit (an incentive to create) that the Court has held justifies copyright law under the First Amendment (see Harper & Row v. Nation Enterprises).

     I also argue that the prospective portion of the Act, which lengthens protection for works that will be created in the future, is unconstitutional, though less clearly so. My contention here is that the extra 20 years tacked on to the tail end of a work's life won't give anyone any meaningful extra incentive to create; the discounted value of that protection is so small as to be meaningless. But I realize that that's a tougher argument to make.

     Wish me luck! Judge Kozinski is a tough guy to win a debate against.


"AND WE MEAN IT": Almost 50 proposed amendments have been submitted -- keep them coming, folks -- and I'll be posting various thoughts about them over the next several days.

     One suggestion that I saw in three or four of the submissions (and that I'd heard before, when I asked this question of friends of mine) was to re-enact some part of the Bill of Rights -- especially the First, Second, Fourth, and Tenth Amendments -- verbatim, and possibly with the words "And we mean it!" The implicit message, I assumed, was that the Framers did a great job writing the provisions in the first place, but that the Courts and other government actors have just refused to read them as written.

     I don't buy it. Let's look for a moment at the Fourth Amendment; the chief provision in the clause prohibits "unreasonable searches and seizures." It doesn't prohibit warrantless searches; it doesn't prohibit probable-cause-less searches; it just prohibits unreasonable searches. There's no word in legal jargon that's more slippery than "unreasonable." If you don't like the way the Supreme Court has defined what's reasonable and what's not, you have every right to complain, and to urge your own definition (or propose a more precise amendment!). But the problem isn't that the Court has strayed from the text (except possibly as to some rather technical questions involving the Warrant Clause, which are quite far from the center of most Fourth Amendment debates). The text was just vague, and reenacting it won't make it any clearer.

     Likewise as to the Tenth Amendment -- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." When people complain that the Court is ignoring the Tenth Amendment by upholding various federal laws, that has little to do with the Amendment's text as such; rather, it has to do with the Court's understand of what "The powers . . . delegated to the United States" actually are. Maybe the Court has read those powers (which are mostly located in article I, section 8) too broadly, but reenacting the Tenth Amendment, with its rather nonsubstantive and unilluminating language, isn't that helpful.

     The Free Speech / Free Press Clause could be read super-literally, by prohibiting all restrictions on speech and press (including, I take it, all state law restrictions, given the Fourteenth Amendment's incorporation of the First against the states). So laws banning threats would be struck down ("Your money or your life" said in a dark alley is pure speech, at least so long as no gun is actually shown, and so long as the victim runs away and doesn't actually hand over any money or get hurt); same for state libel statutes, copyright law, child pornography bans, bans on false advertising, and so on. But if that's done, it shouldn't be done in the name of the Framers who wrote or ratified the constitutional text -- there's no reason to think that they saw the prohibition as being so absolute. What's more, an amendment that's read this broadly would, I think, arouse so much opposition that it would get repealed or at least limited.

     The Second Amendment is the one Amendment that, in my view, has been read by lower courts in a way that's really incompatible with its text -- but let's face it, even there, wouldn't it have been nice if the Framers were a bit clearer in what they were saying? The Amendment isn't nearly as cryptic as some argue it is, but neither is it particularly straightforward.

     Of course, even if the Amendments were straightforward, there wouldn't be much reason to think that the same courts which supposedly screwed up their interpretation would now do the right thing just because they were told "And we mean it."

      But the broader point, I think, is that the Framers may have been very smart and thoughtful people -- but their drafting had its share of opacity, vagueness, and in some instances, error. And even if we think the Court has come up with the wrong constitutional rules in some instances, we can't just assume that the text is pure and that we'd have the results we want if only the interpreters had stuck with that text.

Monday, May 06, 2002


CRISTINA BRANCO: I've just been listening again to "Post-Scriptum", an album by Cristina Branco, and it's really first-rate. If you like Cesaria Evora, you'll likely this as well; and the page has lots of tracks you can listen to.


LIFE'S MOST BEAUTIFUL MOMENT: From MEMRI (which translates Arab publications into English), May 3:
SD# 373 - Chairman of the Arab Psychiatrists Association Offers Diagnoses: Bush Is Stupid; Perpetrating a Suicide/Martyrdom Attack is Life's Most Beautiful Moment; We'll Throw Israel Into the Sea

Dr. 'Adel Sadeq, chairman of the Arab Psychiatrists Association and head of the Department of Psychiatry at 'Ein Shams University in Cairo, recently published an article titled "Class Isn't Over Yet, Stupid!" in the Egyptian newspaper Hadith Al-Madina,(1) which took the form of an open letter to President Bush. Dr. Sadeq, a recipient of the 1990 Egyptian State Prize, is an enthusiastic supporter of Palestinian suicide attacks. In an interview with Iqraa, a Saudi-Egyptian satellite television channel, he glorified martyrdom (suicide) operations. . . .
Click here for the full text.


CENSORSHIP? I just got a fundraising letter from the National Coalition Against Censorship, and their lead complaint is that "Attorney General John Ashcroft didn't like being photographed with 'Spirit of Justice,' a female statue with one breast exposed. So the Department of Justice spent $8,000 for blue drapes which now cover that statue . . . ."

     The trouble is that this isn't censorship. The government has to decide what art is to be displayed in its buildings -- essentially, how it is to "speak" through its interior decor. Someone in the government chose to put up that sculpture. Now someone in the government chose to redecorate. You can call the redecoration silly, but it's not censorship, just like the original decision to put up that statue and not another one -- perhaps one that was more clothed -- wasn't censorship. (I've heard claims that the Ashcroft decision was actually misdescribed in media accounts, but let's set that aside, and assume that the facts were as the NCAC letter described them.)

     AMERICAN INDIAN TEAM NAMES: The same applies to the California bill to ban American Indian team names in government-run schools. I think that's a foolish bill, partly because I think it's not reasonable for people to be offended about most Indian team names, and partly because the activists pushing it are so out of step with rank-and-file Indians, who in fact are mostly not offended about those team names. (Oddly enough, the L.A. Times article I link to above doesn't even mention the study that shows this, though it quotes many activists who claim that the symbols are offensive to Indians.)

     But likewise, there's no censorship problem here. From the perspective of the U.S. Constitution, local school districts are essentially departments of the state; the state may dictate to them what to say and what not to say. (Under state law, school districts have considerable autonomy, but the legislature can remove their autonomy in areas such as this.)

     When the government tries to dictate what art private employers or employees may put up (and also see here), or what team names private sports teams may use (click here and scroll or search down to right after footnote call 87), that's censorship. Serious First Amendment issues may arise even when the government tries to control private speech by attaching strings to some benefit that the government provides.

     But when the government is trying to decide what message it itself (or its agencies) send, that may or may not be good art, good manners, good politics, or a good civics lesson -- but it's not censorship.


AMENDMENTS STREAMING IN: Delighted by the volume of submissions -- we've gotten over 20 messages (some with more than one amendment) in just the last 8 hours. I'm planning to look over them in batches, so I haven't looked closely at any so far, but keep 'em coming!


MORE ON COLLEGES AND DIVERSITY: Here's an excerpt from a Washington Post article published this past Saturday (emphasis added):
A new directive from the Virginia attorney general's office warned state universities they cannot use past discrimination against minority students as a justification for college admissions decisions, but higher education officials said it should bring little change to their policies.

     Officials said the April 22 memorandum from Attorney General Jerry W. Kilgore (R) simply reiterates legal guidelines they have followed for years and will not prevent them from considering race as a factor in enrollment decisions. The memorandum notes that colleges can still legally consider race if their intent is to create a diverse student body.
     The only problem is that the memorandum does not say this at all. Rather, and in the accurate words of reader John Rosenberg, who passed this item along,
it says that diversity as a rationale for racial preferences is still in legal limbo; it summarizes the arguments pro and con; and then it concludes, one would have thought quite clearly, that "[i]t is not within the scope of this memorandum to analyze which argument is stronger, or to predict which way the Supreme Court or Fourth Circuit will ultimately rule. Instead, this memorandum will simply assume, without deciding, that diversity may be a compelling governmental interest and will address those factors to affect whether race-based programs will be deemed narrowly tailored." [Memorandum, p. 14.]
I read the memorandum in its entirety; Rosenberg is right, the press release on this by The Center for Equal Opportunity (an advocacy group that generally opposes racial preferences) is right, and the Washington Post is flat wrong.


PIM FORTUYN: David Kopel, a very thoughtful fellow and a genuine expert on international matters, had an excellent piece on Pim Fortuyn, immigration, and other matters in the Rocky Mountain News yesterday -- and of course it becomes much more timely given today's assassination of Fortuyn. Thanks to The Goliard Blog for the link, and to InstaPundit for the link to Goliard.


PRACTICING SAFE VOTING: Emmanuelle Richard discusses French rules that bar people from voting while wearing rubber gloves, or with clothespins on their noses. Some French voters who strongly dislike Chirac but voted for him in order to stave off Le Pen wanted to express their views this way, but were told that they couldn't.

     Emmanuelle very kindly asks me "Do you have a theory about this, Eugene?," but my response is that I know nothing about French law, and despite that have no opinion. I can, however, mention that even in the U.S., most states bar certain kinds of electioneering near polling booths; the Supreme Court upheld this in 1992 (though I don't quite agree with all aspects of the Court's reasoning). I'm not sure whether such laws would bar voting with gloves or clothespins, or other overt political statements by the voters themselves. Still, the notion that political expression in or near voting booths -- other than the secret vote itself -- may be restricted exists in some measure under the strongly speech-protective U.S. law as well as in France.


LACK OF DIVERSITY ON CAMPUSES: Christina Hoff Sommers has an excellent piece in the Christian Science Monitor on the appalling lack of diversity on university campuses.


A VERY RARE RESPONSE TO AN OLD EXAM: A student just e-mailed me saying that he "really enjoyed question #6 in the Spring 1999 exam [a past exam that I make available for practice to students]. It almost made studying on a Saturday night worth while." I don't need to tell you how rare this is, especially given that exams are blind-graded, so the student isn't just trying to butter me up!
     I can't promise that you'll have the same reaction, but just in case, here it is:

6. Inigo Montoya has been hunting for decades for a six-fingered man who killed his father. It turns out that the killer is a high government official; when Montoya learns his identity, he puts up a billboard right opposite the office building in which the killer works containing the words: "Hello. My name is Inigo Montoya. You killed my father. Prepare to die." Montoya's speech likely may be criminally punished because

(a) Montoya is speaking with actual malice towards the six-fingered man.

(b) Montoya's statement on the billboard, in context, is not obvious hyperbole.

(c) Criminal punishment is not a prior restraint unless it happens before the speech is actually published.

(d) Montoya's statement on the billboard is likely to lead a reasonable person to respond violently, albeit in defensive violence.

(e) Two of the above.


AMUSING TEST: Myron Moskovitz passes along a link to this amusing test. I got only 10 right out of the 11, sorry to say.


MORE ON FREE SPEECH VS. HOSTILE ENVIRONMENT HARASSMENT LAW: "Seventeen people filed sexual harassment reports" against a raunchy University of Connecticut student-run TV show that some allege is misogynistic. One student characterized her views as follows (it's not clear from reports whether she's one of the people who has filed a complaint): "It makes me feel like I live in a really hostile climate . . . . I don't believe in censorship. I just want them to take it off for now."

     That's right: If you find that speech expresses views that offend you, don't think of yourself as a censor -- simply say that it creates a "hostile climate," and make them "take it off for now." No First Amendment problems there, none at all.


CONSTITUTIONAL AMENDMENT: Here's a completely unrealistic but possibly amusing thought experiment -- imagine that you had the superpower to add one amendment to the U.S. Constitution. (Let's call you Amendmentman or Non-Article-V-Woman.) What would it be?

     Sky's the limit, no? But remember: All you're doing is adding the amendment; then you're walking away. The amendment will be interpreted and enforced (or ignored) through the normal political process. An amendment saying, for instance, that "All politicians shall be honest and focused on the best interests of the nation" will therefore mean nothing, because it will be entirely unenforceable.

     The amendment will also be repealable through the normal process -- if the repeal gets ratified by 3/4 of the states, and is proposed by a 2/3 vote of each house of Congress or a constitutional convention called by 2/3 of the states, then the amendment will vanish. So don't choose something that's too out of step with public opinion, since it will just get promptly repealed. Decriminalization of cocaine and heroin, for instance, would probably be stymied by this, whatever its merits might be in your own opinion. (Technical note: To prevent self-entrenching amendments, assume that the amendment will be repealable under currently-existing constitutional procedures and voting rules, even if it purports to change those procedures and rules.)

     Finally, remember that this is your one magic bullet -- don't blow it. For instance, enacting the Equal Rights Amendment, which would bar the government from discriminating based on gender, would probably do little good, since that's already pretty close to the current law under the Supreme Court's jurisprudence since the 1970s. Likewise, an amendment barring laws that criminalize consensual noncommercial private sex between adults would probably not help much; though some states still outlaw some such sexual acts, those laws are pretty rarely enforced. So choose something that you think will not only do good, but will do more good than anything else you can think of. (Note also that I will try to enforce a "single subject" rule, which will keep you from using the amendment to implement a grab bag of unrelated goodies.)

     The goal of this little game is creativity, both in identifying the best problem to solve, and in solving it in a practically useful way given the constraints listed above. A few procedural details:

     1. If you think you have a good answer, e-mail it to me at with (a) the subject containing just the word "Amendment", (b) the text of the proposed amendment, and (c) a brief explanation of why you think this proposal will be good, effective, and better than the alternatives.

     2. I will blog some of the best solutions I get, as well as some that I think would be unsuccessful or problematic in interesting ways. If I say generally nice things about your proposal, I'll use your name; if I say mostly negative ones, I won't.

     3. I'm afraid that if I get enough proposals, I might not be able to respond to each individually; my apologies in advance if that indeed proves to be the case.

     4. You of course don't need to be a lawyer to play, but try to think like a lawyer. Think of the ways the proposal might be misinterpreted by judges, and draft it as carefully and precisely as possible. At the same time, be willing to punt some of the less important details to the courts (which is what drafters of other amendments have done, sometimes successfully and sometimes not).

     I've asked people this question at dinner before, and have always gotten some interesting reactions -- I hope it will have the same effect here.

Sunday, May 05, 2002


THE STUNNING (well, nonexistent) SUCCESS of "millipundit" leads me to make another suggestion: Stalkers should seek greater acceptance of their condition by describing themselves as having Attention Surplus Disorder.

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