[Eugene Volokh, 11:17 AM]
FAMILY STUFF TODAY AND THIS WEEKEND. I probably won't get a chance to blog -- or to respond to e-mail -- until Monday.

 
[Eugene Volokh, 9:52 AM]
THE FIRST DIVORCE LINKED TO SEPTEMBER 11: I have absolutely no reason to think that this purported newspaper clipping (thanks to my friend Michael Klein, by the way, for passing it along) is accurate -- but it's really funny, in a dark way.
UPDATE: Reader Michael Kielsky points out that snopes.com also doubts the accuracy of the story. But it remains funny.

 
[Eugene Volokh, 9:14 AM]
HOMOPHONIA: Homophones, also sometimes called homonyms, are words that are pronounced the same way but spelled differently: "bear" and "bare," "toe" and "tow." There are plenty of triple homophones, for instance "two," "too," and "to."

    It's tougher to find quadruple, quintuple, and sextuple homophones. My friends and I have found several sets of quads, but only two quints, plus one that's possibly a sextuple but possibly just a quint.

    Can you find any such? Late next week, I'll post what we've found so far. Here are the rules:

    1. The words must be spelled differently (though it doesn't matter if their meanings are different).

    2. They must be pronounced identically, at least in one possible pronunciation.

    3. Their pronunciation must be listed identically in the same modern dictionary.

    4. They must be spellable entirely using lower-case letters (i.e., no "Eugene" or "Lesotho" or "CIA"), though hyphens and apostrophes are allowed.

    5. They may not be listed solely as obsolete, archaic, or dialect.

    If you just find a quadruple set, please don't e-mail it to me -- I've got plenty.

    But if you find a quintuple, sextuple, or larger, please e-mail it to me but only after checking in a dictionary to make sure that the pronunciations are indeed identical, and include in the e-mail the name and the edition of the dictionary.

 
[Eugene Volokh, 8:52 AM]
ANOTHER SECOND AMENDMENT POLL: Two weeks ago, I mentioned the Zogby poll, commissioned by the Second Amendment Foundation; that poll found that "A wide majority of American voters (75%) agree with the Justice Department's position that the Second Amendment guarantees the right of individuals to keep and bear arms. Just over a fifth (22%) disagree with the Justice Department, while 4% are unsure." I pointed out, though, that the pollsters asked respondents "Do you agree or disagree with the current Justice Department's position that the Second Amendment guarantees you the individual right to keep and bear arms?" Citing a relatively authoritative source -- the Justice Department -- as supporting the individual right view, I suggested, might have skewed the results, though I conjectured that even despite this flaw, "the Zogby survey at least makes clear that the supposedly 'radical' Justice Department view is at least well within the mainstream of public opinion."

     Well, I still think the question was somewhat skewed, but another recent poll that I just ran across suggests that the skew might not have had much effect; according to a May 14, 2002 ABC News poll (italics added),

After hearing the Second Amendment verbatim, 73 percent in an ABCNEWS.com poll said it guarantees the right to individual gun ownership. Twenty percent said, instead, that it only guarantees the right of states to maintain militias -- the government's longstanding position until the Justice Department reversed it in a U.S. Supreme Court brief last week.

Now this result may not be terribly robust -- many people's views might be quite different at other times, when the memory of the Justice Department's stance has been replaced with, say, the memory of a contrary court decision, or a mass shooting, or some such. I've seen polls that yield much closer results than 73-20. And of course one can argue that the public's views, whatever they may be, just shouldn't matter, in one direction or the other.

     But I think this poll provides further evidence that the Justice Department's position is far from the "radical" step that many have described it as being.

 
[Eugene Volokh, 8:08 AM]
ACADEMIC FREEDOM COMMITTEE: I just got confirmation that I'll be serving on the UCLA Academic Freedom Committee during the 2002-03 school year. To my knowledge, UCLA has generally been pretty free of attempts to suppress student and faculty speech (the Jonnie Hargis matter last Fall was a notable exception, but I believe it ended up being resolved mostly correctly) -- but perhaps my tenure on the Committee will prove otherwise. Actually, there has been talk of implementing a "sexual harassment policy" for student Internet use that may well be an unconstitutional speech code. (I can't tell for sure, because the text has been held up in a different committee for over a year now.)

     As I've discussed elsewhere, the "hostile environment harassment" theory has ended up being one of the broadest sources of speech restrictions in past years. Fortunately, courts have generally rejected campus speech codes even when they're drafted using the "hostile environment harassment" terminology, though I hope that it won't have to come to litigation here at UCLA.

     In any case, it will either be a quiet committee year -- or a fun one.

 
[Eugene Volokh, 11:56 AM]
MORE ON THE DEATH PENALTY AND THE MENTALLY RETARDED: My good friend Rick Garnett is a devoutly Catholic Notre Dame lawprof, who opposes the death penalty on moral grounds, but his excellent National Review Online piece nonetheless criticizes on constitutional grounds the Court's decision barring execution of the mentally retarded. Much worth reading.

 
[Eugene Volokh, 11:11 AM]
WELCOME TO VISITORS FROM KEEPANDBEARARMS.COM: A recent KeepAndBearArms.com post linked to my "Mistake About the Supreme Court and the Second Amendment" item -- if you've followed that link here, welcome! There are quite a few other firearms-related posts in the archives (see the second link from the top on the left-hand side of this Web page, right below "HOME"). Try this one on another error in Michael Bellesiles' "Arming America" book, slippery slopes from handgun bans to total gun bans, a San Jose Mercury-News Second Amendment article that I wrote, the two clauses of the Second Amendment, and many more.

 
[Eugene Volokh, 10:45 AM]
THE ACTUAL BILL OF RIGHTS: One correspondent wrote to express a view that I've heard before -- actually, from a fellow lawprof in a public debate:

I believe there is a legitimate point to be made, which I can make by analogy to the development of Jewish law.  The written Torah (the Five Books of Moses) contains the basic code of Jewish law; but rabbinic interpretation through the Talmud has created vast extensions of the written Torah that many people find far less persuasive than the written Torah.

I think is is fair to say a similar process occurred with constitutional law, especially in the Warren Court.  I would agree that [spies and saboteurs] should be entitled to core constitutional protections -- i.e., basic due process -- even if they admitted they held the Constitution in contempt.  But their entitlement to the rich array of Warren Court extensions of the Constitution to areas that many scholars still think were unjustified is a different matter.  No court should go out of its way to extend these penumbral rights to a person who, after being subjected to a full constitutional trial, is found to have in effect repudiated the Constitution.  I think the analogy would be to whether a person has taken the legal steps to renounce his U.S. citizenship.  One could imagine that a trial was needed to make that determination.  But if it was determined a person had, in fact, renounced U.S. citizenship, certain rights would then automatically disappear.  Similarly, if a person was found in a full constitutional trial to have, either in word or deed, repudiated the Constitution, then any subsequent prosecution on the underlying accusation would be governed by a special "reduced set" of core constitutional protections, but not the full blown Warren Court set of rights some of which are still suspect.

     Now one can criticize various Warren Court inventions -- such as the Miranda rule, or even the application of various Bill of Rights rules to the states via the Fourteenth Amendment (though I'm told that there's a good deal of evidence that the Warren Court was right on that latter point, as a matter of constitutional meaning).

     But the main issues raised by military tribunals, military detentions, and the like have very little to do with the Warren Court decisions (except possibly the question whether some of Lindh's statements were gotten in violation of Miranda). These matters raise fundamental questions that go to the heart of the actual language of the Constitution.

     The Sixth Amendment guarantees federal criminal defendants a jury trial; military tribunals operate without juries. It guarantees public trials; military tribunals may lack that. It guarantees speedy trials; indefinite military detention may prevent that. It guarantees the defendant the right to confront the witnesses against him; the use of secret evidence may undermine that (though there is some controversy as to the exact meaning of "confronted with the witnesses against him").

     Nor can one say that the text contains a clear implication that the provisions don't apply in time of war. The Third and the Fifth Amendments do specifically provide for certain special rules in war-time; but this shows that the Framers thought about what should happen during a war, believed that the Constitution would apply then, and knew how to set up special rules for war-time when they needed it. The purely textual implication from this is that the other constitutional provisions would actually equally during war-time.

     Likewise, the notion that noncitizens are entitled to Bill of Rights protections, at least so long as they are tried in United States courts (and, in the case of the Fourth Amendment, so long as the search takes place in the U.S.), is hardly an invention of the Warren Court. First, the Bill of Rights does not distinguish citizens from noncitizens, so a focus on the pure text does not support denying its protections to noncitizens.

     And, second, while I am not an expert on the history of how noncitizens' rights were understood in the late 1700s, I am quite sure that applying the Bill of Rights to noncitizens is no Warren Court invention: The Supreme Court held this unanimously in Wong Wing v. U.S. (1896) as to the criminal procedure provisions, and in Yick Wo v. Hopkins (1886) (also unanimously) as to the Equal Protection Clause racial equality principle.

     Now there are good arguments that, as a matter of the original meaning of the text (though not of its letter), and as a matter of American constitutional traditions, there are certain implied exceptions to the Bill of Rights with regard to enemy combatants. It's clear, for instance, that enemy combatants can in many situations be taken prisoner and detained without trial (in part because there's often nothing to try them for, since fighting against the U.S. is not by itself a crime); likewise, Ex parte Quirin (1942) makes a good argument that enemy combatants' unlawful combat actions (such as espionage or sabotage) may be tried by military tribunals, at least in some situations.

     But let there be no mistake about this: Here it's the government, not the criminal defendant, that is seeking a nontextual, and fairly nontraditional, reading of the Constitution. Maybe the government is right, but the arguments of its critics cannot be rebutted simply by denouncing some "Warren Court set of rights" -- it's the Framers' set of rights that's clearly at issue here.

 
[Eugene Volokh, 10:03 AM]
EXECUTING THE MENTALLY RETARDED: I think the question whether mentally retarded should be executed is morally very difficult. But Justice Stevens's arguments that they should be held unconstitutional because of an evolving national consensus against them are extremely weak, and Justice Scalia's dissent on that point is devastating. Read the opinions, which are quite accessible, and see for yourselves.

 
[Eugene Volokh, 8:00 AM]
THE HUMBLE JUSTICES: In an earlier post, I wrote that the Court tends not to agree to consider a legal question until lower courts have reached conflicting results on the question. This is sometimes called a "split" or a "circuit split," when the conflicting results come from different federal circuit courts of appeals. Reader Brett Bellmore responds:

Well, yes, it does make sense . . . if the Court regards a unanimous error on the part of lower courts as being perfectly all right. If everybody is having their rights violated, that's just peachy, but let some people have their rights respected, and SOMETHING MUST BE DONE! Sometimes the law is an ass, after all.

     Well, there's certainly some truth to that objection; and for this very reason, the Court sometimes does agree to hear questions even when there's no disagreement among the lower courts.

     But at the same time, the Court's policy of waiting for splits actually makes sense as a matter of, believe it or not, humility. Yes, I know that this isn't a quality that most people associate with Supreme Court Justices; but my sense is that the Justices are often quite aware that they're dealing with some really complex questions, to which they themselves don't know the answers. And if all lower courts reach the same result on an issue, that's evidence that the lower courts have probably reached the right result -- not open-and-shut evidence, but enough to create a presumption.

     Of course if we think we know what the right result is, and that lower courts have all gotten it wrong, then we will fault the Court for letting the lower courts' error stand. But the Justices may not share our beliefs; they may be genuinely unsure what the right result would be. Given this limited knowledge, sticking with what lower courts unanimously say is a plausible rule of thumb for the Justices to use.

     In fact, this is part of the basis for the doctrine of precedent more generally. One reason for sticking with precedent is to make the law more stable and certain. But another is that if a whole bunch of judges have ruled a particular way, that's a useful signal to future judges that this is probably a relatively sound result.

     It's not a perfect signal, and judges are supposed to question precedents that aren't strictly binding (e.g., precedents from other jurisdictions) rather than just following them blindly. Still, it's a useful piece of information in a system where judges are often aware that the questions facing them are hard, and that their own experience and reasoning may be imperfect.

     A broader point: It's easy to fault an institution for not acting on what you know to be the obvious truth. But even if you're right that it is the truth, it might actually not be so obvious. The institution has to operate from its knowledge base, not yours. And given its own recognition that its knowledge is limited, adopting imperfect rules of thumb -- such as "usually follow what the lower courts unanimously say" -- may make a lot of sense.

 
[Eugene Volokh, 7:46 AM]
MORE ON WHY WE CAN BE IN A WAR EVEN WITHOUT A DECLARATION: From Foreign Affairs and the U.S. Constitution p. 76 (2nd ed. 1996), a treatise by the extremely respected Columbia law professor Louis Henkin:

[S]ome critics during the Vietnam War and some during the Persiaan Gulf Crisis of 1990-91 . . . expressed the view that Congress can decide for war only by formal declaration; there is no foundation for that view . . . . Congress can decide, and has decided, for war, formally or informally, expressly or by implication, in advance or by subsequent ratification, by legislation or resolution, even merely by appropriating funds for the conduct of war. The Supreme Court recognized undeclared war against France in 1800, as well as our undeclared Civil War. Congress has on numerous occasions asserted the power to authorize the use of force by resolution rather than by declaration.

     Again, there may be good policy reasons why we might want Congress to officially declare war; but as a matter of U.S. law and international law, we can be legally in a war (because we are in fact in a war) without any declaration of war.

 
[Eugene Volokh, 6:23 PM]
DETERMINING THEIR OWN DESTINY: The usual suspects -- Noam Chomsky, Ed Asner, Gloria Steinem, and others -- have published a denunciation of the War on Terrorism in The Guardian. The volume of error there is too large to cover entirely, but here's one gem from the third paragraph:

We believe that peoples and nations have the right to determine their own destiny, free from military coercion by great powers.

Hmm. Would you say that the Afghan people had more of a say in their own destiny (1) under the Taliban, or (2) today? Do you suppose that the people of Iraq and North Korea would have more of a say in their own destiny (1) now, or (2) if the U.S. ousted their governments?

     While we're at it, o wise ones, would you say that the West German people had more of a say in their own destiny under (1) Hitler (say, in 1939), or (2) after being "militar[ily] coerc[ed] by great powers" (say, in the 1950s)? Or would you have put out the same statement during World War II?

 
[Eugene Volokh, 6:07 PM]
THE CNN AND PALESTINE: My friend and former fellow UCLA Law School student Dov Fischer passes along the following:

For two years, Cable Network News has been embroiled in a running battle against a group of media-watch organizations who charge that CNN consistently distorts news, images, and even opinion against Israel and in favor of Yasser Arafat's Palestine Authority. The charges have led to dozens of protest actions and e-mail campaigns objecting to perceived anti-Israel biases of CNN anchors, reporters, and talk-show panelists.

     Yesterday, a new controversy erupted after CNN anchor Sheila MacVicar reported, only minutes after a terrorist suicide bomber destroyed a Jerusalem bus and murdered 19 passengers, that the bus had departed from Gilo, which MacVicar described as a Jewish outpost in occupied Palestinian territory. In fact, Gilo is a neighborhood in Jerusalem.

     After CNN was submerged with protests, it issued a formal explanatory note, conceding the mistake and emphasizing that the Gilo error was not repeated in later reports. Nevertheless, protestors visited CNN's website to learn more about MacVicar and discovered that she is billed by CNN as an experienced reporter who has covered news in "Bosnia, Iraq, Israel, Palestine, Rwanda, and Zaire." That set off a new wave of protests from individuals asking when "Palestine" had been given formal nation status alongside the other countries. I wrote MacVicar directly, asking her to describe by return e-mail or fax me an outline of the borders of Palestine. I promised to credit MacVicar in an article I would publish about the first formal presentation of Palestine's borders.

     Today, it appeared briefly that CNN had corrected its MacVicar website when visitors to http://www.cnn.com/CNN/anchors_reporters/correspondents/macvicar.sheila.html noticed that the word "Palestine" had been removed from the list of countries that MacVicar has covered. However, later in the day, I discovered a second CNN MacVicar website, http://www.cnn.com/CNN/anchors_reporters/macvicar.sheila.html. The second site parallels the first CNN MacVicar site in every way, word-for-word, except that it lists "Palestine." It's like a Penn and Teller Show. First, you see Palestine. Then Palestine disappears before your very eyes. Then it reappears. Then it's gone again. If only life in the real world were that simple.

 
[Eugene Volokh, 5:58 PM]
WHY DO THEY HATE US?: An excellent piece by David Tell in the Weekly Standard on why they hate us (though here the "us" is just us Jews) -- because people teach them to hate us, of course. From age 3.

. . . [T]here is the May 7, 2002 edition of "Muslim Woman Magazine" [on the Arab Radio and Television Network (ART), a Saudi-based company], hosted by Doaa 'Amer, a soft spoken, highly polished anchorlady who might just as well be Joan Lunden or Katie Couric -- except that she's wearing a body-length robe. And also that she's a monster. Ms. 'Amer begins as follows:

     "Our report today will be a little different, because our guest is a girl, a Muslim girl, but a true Muslim. Allah willing, may our God give us the strength to educate our children the same way, so that the next generation will turn out to be true Muslims who understand that they are Muslims and know who their enemies are. This girl will introduce herself immediately. She is the daughter of my sister in faith and of the artist, Wagdi Al-Arabi. Her name is Basmallah and we will ask her as well."

     The camera then begins a low pan downward and to the right as Ms. 'Amer offers a "peace be unto you" welcome to her guest. Who turns out to be . . . a toddler.

     Toddler: Allah's mercy and blessing upon you.

     'Amer: What's your name?

     Toddler: Basmallah.

     'Amer: Basmallah, how old are you?

     Toddler: Three and a half.

     'Amer: Are you a Muslim?

     Toddler: Yes.

     'Amer: Basmallah, are you familiar with the Jews?

     Toddler: Yes.

     'Amer: Do you like them?

     Toddler: No.

     'Amer: Why don't you like them?

     Toddler: Because . . .

     'Amer: Because they are what?

     Toddler: They're apes and pigs.

     'Amer: Because they are apes and pigs. Who said they are so?

     Toddler: Our God.

     'Amer: Where did he say this?

     Toddler: In the Koran.

     'Amer: Right, he said that about them in the Koran. Okay, Basmallah, what are the Jews doing?

     Toddler: The Pepsi company.

     'Amer: [Approving laughter.] You also know about the boycott, Basmallah? Did they love our master, Muhammad?

     Toddler: No.

     'Amer: No. What did the Jews do to him?

     Toddler: [Pauses, struggling for the right answer.] The Prophet Muhammad killed someone . . .

     'Amer: Obviously, our master Muhammad was strong and could have killed them. All right, you know the traditions about the Jews and what they did to the Prophet Muhammad?

     Toddler: [Mumbled assent.]

     'Amer: Is there a story you know?

     Toddler: Yes, the story about the Jewish woman.

     'Amer: The Jewish woman? What did she do to our master, the Prophet Muhammad?

     Toddler: The Jewish woman?

     'Amer: Yes.

     Toddler: There was a Jewish woman who invited the Prophet and his friends. When he asked her, "Did you put poison (in my food)?" she said to him, "Yes." he asked her, "Why did you do this?" and she replied, "If you are a liar you will die and Allah will not protect you; if you speak the truth Allah will protect you."

     'Amer: And our God protected the Prophet Muhammad, of course.

     Toddler: And he said to his friends, "I will kill this lady."

     'Amer: Of course, because she put poison in his food, this Jewess.

     Toddler: Oh.

     'Amer: [Speaking directly into the camera.] Basmallah, Allah be praised, Basmallah, Allah be praised. May our God bless her. No one could wish Allah could give him a more believing girl than she. May Allah bless her and her father and mother. The next generation of children must be true Muslims. We must educate them now while they are still children so that they will be true Muslims.

Read the whole piece -- it's very good.

 
[Eugene Volokh, 2:54 PM]
SLIPPERY SLOPES: A recent e-mail, coupled with my continuing obsession with slippery slope questions, reminded me of this great quote, from Edmund Burke, On Moving His Resolutions for Conciliation with the Colonies, Speech to Parliament, March 22, 1775:

In other countries [than the American colonies], the people . . . judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze.

Burke is not, I think, taking a stand on whether this approach is sound -- but he describes it brilliantly.

 
[Eugene Volokh, 11:58 AM]
MISTAKE ABOUT THE SUPREME COURT AND THE SECOND AMENDMENT: According to an otherwise fairly balanced cnsnews.com article,

In refusing to hear the cases [United States v. Emerson and United States v. Haney, which involved Second Amendment challenges to various statutes], the Supreme Court cited as precedent the 1939 ruling in the United States vs. Miller case that said the Second Amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."

     This is simply not so. In refusing to hear these cases, the Court cited absolutely nothing. As with virtually all of the remaining thousands of cases that it refuses to hear (over 98% of all the cases that it's asked to hear), the Court issued a one-line order: "The petition for writ of certiorari is denied."

     Whenever you petition the Supreme Court to review a lower court case, the Court has unlimited discretion to deny the petition (except in some very narrow and unusual classes of cases). It doesn't need to decide the merits of the case; it can just say that it isn't interested in hearing it. See, e.g., Riggs v. California, 525 U.S. 1114 (1999) (Stevens, J., statement respecting the denial of certiorari) ("The denial of this petition for certiorari, as always, does not constitute a ruling on the merits.").

     In particular, the Court usually refuses to rehear cases unless there is (1) a "split" among lower courts on the subject, which means that lower courts have reached different results on the question, and (2) resolving the split would make a difference to the result in this case. As to the Second Amendment, there's now (with the Fifth Circuit's decision in Emerson) a split as to whether the Amendment secures an individual right. But there's no split on the more specific question of whether the right extends to automatic weapons (Haney) and to people who are under domestic restraining orders (Emerson), so resolving the broader issue would not change the results in these particular cases. It thus makes sense that the Court would refuse to hear the case.

     The article was also incomplete (though not as flatly wrong) in another way: It quoted part of the holding of Miller, but not another part that sheds light on it -- that "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." That would make a significant difference -- "protects only those rights that have 'some reasonable relationship to the preservation of efficiency of a well-regulated militia'" isn't quite the same as "protects only those rights that have 'some reasonable relationship to the preservation of efficiency of a well-regulated militia,' [which consists of] all males physically capable of acting in concert for the common defense."

     As I argue elsewhere, there's much more to the Second Amendment debate than just the Miller case. But even if an article (and again I should mention that it is generally a relatively balanced piece) focuses on the denial of certiorari and on Miller, it seems to me that it should at least be accurate and fairly complete in its discussion of those two items.

UPDATE: A recent KeepAndBearArms.com post linked to this message -- if you've followed that link here, welcome! There are quite a few other firearms-related posts in the archives (see the second link from the top on the left-hand side of this Web page, right below "HOME"). Try this one on another error in Michael Bellesiles' "Arming America" book, slippery slopes from handgun bans to total gun bans, a San Jose Mercury-News Second Amendment article that I wrote, the two clauses of the Second Amendment, and many more.

 
[Eugene Volokh, 11:22 AM]
CORPORATIONS AND THE CONSTITUTION: A recent e-mail made me think of the perennial question -- should corporations generally enjoy the protections of the Bill of Rights?

     The answer, I think, is a definite yes (with some exceptions that I might talk about later; note for now that the right to vote is not in the Bill of Rights). The courts have generally held this (again, with some exceptions that I might talk about later), and they're right. Let me start for now with five general observations.

     1. Consequences. The New York Times is owned by a corporation. Most private universities are organized as corporations. So are most nonprofit advocacy groups. So are many religious groups (though I believe some are organized through some special quasi-corporate forms). If you really believe that corporations lack constitutional rights, then the government would be free to ban corporate-run newspapers from criticizing the government, or ban the Catholic Church or the ACLU or the NRA from expressing its views.

     Likewise, if corporations lack constitutional rights, the government could take their property without just compensation, and in fact without any hearing. It could just come in and grab it, no questions asked.

     Now some people might think this is the right result. Or perhaps if this happened, people would stop using the corporate form -- newspapers, advocacy groups, and churches would somehow reorganize themselves as, say, partnerships or sole proprietorships. This might actually be hard, and from the perspective of people who disapprove of corporate rights, it might be counterproductive; what's the point of letting the Times have constitutional rights if it's run as a partnership but not if it's run as a corporation? But for now, my point is simply that we should clearly identify the consequences of denying constitutional rights to corporations -- and those consequences hardly seem sensible.

     2. Individual rights. One reason these results may seem senseless is that restricting the rights of corporations usually means restricting the rights of individuals. If you take the property of a corporation without compensation, whom are you really hurting? Not "the corporation," which is, indeed, a convenient legal fiction. You're hurting the corporation's owners.

     If you accept the legal fiction of the corporation being a separate person, then taking its property violates its rights. But if you reject that fiction, as a means of arguing that the corporation should lack rights, then taking its property violates its owners' rights. Either way, the Takings Clause should apply; and that's what suggests that the legal fiction (a corporation is a person) is a sensible one here -- using it makes analysis easier, but doesn't ultimately change the results much.

     The same goes for the Due Process Clause, the Civil Jury Trial Clause, and so on. If you take a corporation's property, or let it be taken through certain procedures, you're affecting the property of individual owners. There's therefore no real reason to deny these rights to the corporation.

     Likewise for free speech. Corporations don't actually speak; people speak. A corporation's employee (a person) communications information that is decided on by a group of managers (people) who represent the stockholders (other people). Barring the New York Times or the ACLU or the Catholic Church or General Motors from speaking bars real people from speaking using the corporation's property.

     Aha, some might say, the real people aren't silenced -- they can still speak using their own property. But the Court has long understood that to speak effectively in a vast nation, you need to be able to pool your resources with others (even in this cyberspace age).

     The Court has recognized this under the rubric of the right to expressive association, but the same applies to speech via corporations. When people contribute money to the ACLU, so that the ACLU's directors can decide what ACLU's spokespeople say, the contributors are making a decision to pool their resources so that some decisionmakers (the directors) can decide how to use them to speak. And the same goes for GM shareholders -- they are pooling their resources and giving them to some decisionmakers (GM managers) so they can decide how to spend the resources, including spending them for speech, whether advertising or political advocacy.

     3. Constraining government power. Constitutional rights aren't meant only to protect individuals; they're also meant to constrain government power. The freedom of speech is valuable because it keeps the officials who are now in the government from suppressing criticism, and thereby entrenching their power. Procedural rights are valuable because they keep the government from punishing dissenters through arbitrary arrest, search, and imprisonment.

     This rationale applies to corporate rights as well as to individual ones. Consider, for instance, First National Bank v. Bellotti (1978), where the Court clearly held that corporations generally have free speech rights. The Massachusetts legislature wanted the voters to give the legislature the power to impose an income tax. Various corporations -- which is to say, the managers of the corporations, whom the stockholders gave the power to speak on behalf of the corporations -- opposed the income tax. So to get the tax enacted, the legislature banned corporations from speaking out about most proposed ballot measures. If the government had the power to thus shut out one large set of speakers from the public debate, it would have tremendous power indeed.

     Likewise, if the government had the power to freely take corporate property, think how much leverage this would give it. "Hmm, you don't want us to take your business away from you? Just make sure you don't speak out too much against us."

     4. Creatures of the government. But wait, some might say: Corporations are created by the government; they only exist because of government-issued charters; why can't the government attach conditions to those charters, e.g., "If you get a corporate charter, you can't use it to express your views about ballot measures"?

     The Supreme Court, though, has long (and correctly) recognized that the government does not have a free hand to impose conditions on grants of benefits. When the government controls 35% of the GNP, and has vast regulatory power over the economy, imagine what it could do using conditions. "Want a tax refund? Promise not to spend in on anti-government activity." "Want to buy a chunk of federally owned land to build a home? Promise to let us search your house whenever we like, without any excuse." "Want a corporate charter? Promise not to criticize the government."

     The government does have considerable power to define the rules of property, contract, and corporations, especially if it's changing them for the future. (Retroactively attaching conditions to corporate grants is much more problematic.) If a state chose to bar the creation of any new corporations, it could do that, and newspapers, nonprofits, and businesses would have to organize as partnerships or sole proprietorships or other entities. But this power to bar corporate charters altogether does not give the government the power to say "We will give you a corporate charter, but only if you promise to waive your constitutional rights."

     5. Economic power. But doesn't this allow the creation of entities with great economic and thus political power? Well, it's true that the corporate form does make it easier for people to pool their resources -- whether for business, for the business of news reporting, for nonprofit advocacy, for religious activity, or for other purposes. Had the corporate form not been invented, we'd probably have fewer such power centers.

     We'd probably also have far less wealth, technological progress, health, and military security (since wealth tends to on balance bring health and military security). The aggregation of economic and political power does create some risks for democracy, for instance by making it easier for power centers (whether corporations, unions, or other interest groups) to lobby for government handouts and protectionist measures. But modern economic history suggests that such aggregation of power is necessary to effectively develop and distribute consumer products, tools, medicines, food, and so on.

     Finally, remember that the federal government is the largest single aggregation of economic and political power. It controls 20% of the GNP (the 35% figure includes state and local governments). It controls the military. It can pass laws that govern our lives.

     Stripping all corporations of speech rights won't materially empower individuals; individuals are generally powerful to the extent that they can form themselves into groups. Stripping for-profit corporations and unions of speech rights will comparatively empower nonprofit corporations (religious entities, the NAACP, the NRA, and so on), since they won't have the media or other business corporations as rivals.

     But the group that has the most to gain from denying corporations free speech rights is the government, which will have even fewer power centers to balance its tremendous power.

 
[Eugene Volokh, 6:01 PM]
SLIPPERY SLOPES: Most of my recent posts have tentatively supported giving the government more power in various areas; I make these suggestions hesitantly, because power can easily be abused, but I'm afraid that this extra power may sometimes be necessary.

     Nonetheless, I want to constantly acknowledge that the risk of the slippery slope isn't just some bogeyman -- it's a reflection of real processes that occur in human institutions. I don't want to get into the details of this here; I've written a ridiculously long article on this already. But I thought I'd cite again one concrete example, which I blogged three weeks ago, but which I think is worth recalling (thanks to my friend Tom Bell, a law professor at Chapman for pointing it out).

     Late last month, Attorney General John Ashcroft defended the proposed new guidelines (see the New York Times story) for federal agents this way:

Asked whether the change would lead to a rollback of hard-won civil-liberties protections, Ashcroft said the powers would be used only "for the purpose of detecting and preventing terrorism."

"It's not to be abused for other purposes,'' he said. . . .

The new rules allow agents to conduct "general topical research" and "pure surfing" designed to find Web sites, chat rooms or Internet bulletin boards with information about terror, bomb-making instructions, child pornography or stolen credit cards.

There you have mission creep in the span of a few paragraphs: from "the purpose of detecting and preventing terrorism . . . not to be abused for other purposes" to "find Web sites . . . with information about . . . child pornography or stolen credit cards." Most slippage happens more slowly, but it does happen. Supposedly very narrow innovations have a tendency to cover a broader and broader area. We can't let this paralyze us when action is needed -- but we always need to consider this when weighing an action's benefits against its potential costs, both short-term and long-term.

 
[Eugene Volokh, 5:50 PM]
MORE ON TRUTH SERUM: E.V. Kontorovich, soon to be a law professor at George Mason, has an Wall Street Journal op-ed today defending the use of truth serum. As I mentioned in an earlier post, use of truth serum is unconstitutional in normal law enforcement, but there's good reason to think that it should be permissible at least in find-the-dirty-bomb cases.

     I think this is a really tough question, especially since the concept of "terrorism investigation" can easily get pretty broad over time. (Imagine truth-serum interrogations being used on pro-life activists who are suspected of conspiring with anti-abortion terrorists, or on environmental activists who are suspected of conspiring with environmental terrorists.) But of course being blown up is pretty tough, too; the subject deserves serious discussion.

SPECIAL BONUS: E.V. is (1) a fellow Russkie -- in fact, to my knowledge the third Russian emigre U.S. law prof, after Michael Bazyler (Whittier) and me -- and (2) a fellow Evgeniy (pronounced Yevgeniy) Vladimirovich, which is what the E.V. stands for.

 
[Eugene Volokh, 5:26 PM]
JUST HAD A SMALL EARTHQUAKE HERE IN L.A. -- or at least small to me, here in West L.A.

 
[Eugene Volokh, 4:27 PM]
SELF-REPRESENTATION: Reader Michael Zorn asks why Moussaoui is being allowed to act as his own attorney; wouldn't this violate the Sixth Amendment, by denying him competent representation?

     Actually, in Faretta v. California (1975), the Court held that the Sixth Amendment guarantees sane defendants the right to represent themselves, even if they know nothing about the law. I'm genuinely on the fence as to whether this is the right result. The opinion gives good arguments for this rule; but on the other hand, we have an independent interest in making sure that justice is done (and is seen as being done), and it's generally more likely that justice will be done if there are competent lawyers on both sides. Still, I don't make the law -- I just report it.

 
[Eugene Volokh, 4:02 PM]
PUBLIC PROFANITY: My friend Ann Salisbury pointed me to an L.A. Times story about a billboard that shows a guy sitting on the toilet, with the caption "I'm the shit." The billboard is advertising a rap album, is on top of the building that houses rap powerhouse Death Row Records, and is in a nice part of town, right next to Beverly Hills.

     People are understandably outraged, but given current First Amendment law, there's nothing the government can do -- profanity is constitutionally protected (except, it turns out, on over-the-airwaves radio and TV broadcasts, but that's a historical exception that the Court is quite unlikely to broaden). For more on this, see Cohen v. California (the "Fuck the Draft" case) and Erznoznik v. City of Jacksonville (a case dealing with nudity in films shown on drive-in screens).

 
[Eugene Volokh, 2:35 PM]
DELILAH PRINCIPLE: Betchen and Paul Barber asked me a delightful question: "Who cut off Samson's hair?" Of course I said "Delilah" -- I knew that had to be wrong (or why would they have asked?), but I didn't have any better answer.

     The answer is Delilah's servant (or at least her agent, in legal parlance): "Having put him to sleep on her lap, she called a man to shave off the seven braids of his hair, and so began to subdue him."

     The point (and yes, there is one) isn't just that people get things wrong -- rather, that much of what we remember is oversimplified, and often along rational pathways: The actions of a servant or an agent, they theorize, are easily remembered as the actions of the master. This may be quite reasonable in many ways, both practically and morally; and the law, of course, turns this into a legal fiction, which lets us speak of some corporation being "the author" of a work, or some business "doing" something that was of course done by its agents. But if we want to be precise, we need to be aware of this limit of our memories.

 
[Eugene Volokh, 9:50 AM]
FOURTH AMENDMENT VIOLATIONS AS A SOLUTION TO FOURTH AMENDMENT PROBLEMS? Some correspondents replied to my Slate article by suggesting that the Fourth Amendment really wouldn't matter: The government would and should violate the Fourth Amendment when it comes to searching for dirty bombs, so there's no real reason to change Fourth Amendment law to accommodate some searches. For instance, one person wrote:

You overlook a simple answer to the dilemma you present in your piece. Instead of changing the Fourth Amendment to limit the rights we now have, the government can simply ignore it when conducting investigations into possible "dirty bombs." This makes sense given a person's recourse for a fourth amendment violation and the likely public reaction given the "reasonableness" of such investigative techniques.

     I don't think this is a sound approach. The Fourth Amendment isn't just a rule of evidence or a way for plaintiffs to sue the government. It's supposed to be the basic law of the land that the government must follow. Government officials take an oath to follow it. If they willfully refuse to follow it, we would be right to denounce them.

     Of course, police officers do often violate the Constitution, for a variety of reasons. But this hardly means that we should approve of this, and actually urge the government to do it.

     Certainly when the federal government (whose operations often attract more attention than those of local officials) in a high-profile case willfully, on clear orders from the top, violates the Constitution, we know there's something wrong. Chances are that there's something wrong with the government, in which the press, the pundits, and the public should (and often would) hold the government to task for it. Or, there may be something wrong with the constitutional rule, in which case the rule needs to be changed; and not changing it will instill contempt for the Constitution, both among the public and among law enforcement.

     If there are some searches in which the government should engage -- because we think that they are reasonable searches rather than unreasonable ones -- it seems to me that we should acknowledge that as part of our Fourth Amendment jurisprudence. Sure, it "limits the rights we now have," but at least it maintains the norm that the government should follow the Constitution. On the other hand, telling the government "Oh, go ahead, violate the Constitution when it's really necessary" would, I think, undermine that norm, and jeopardize other constitutional rights as well.

 
[Eugene Volokh, 9:49 AM]
ARE GEIGER COUNTERS INHERENTLY DIFFERENT FROM HEAT DETECTORS? My Slate piece discussed whether the police should be able to drive through a neighborhood using Geiger counters, looking for evidence of a dirty bomb hidden in a house. I reasoned that under existing Fourth Amendment law, which bars the police from using heat detectors to look for evidence of marijuana being grown, and which ostensibly ignores the seriousness of the crime at issue, this search would be unconstitutional. That, I concluded, was a mistake, which shows that constitutional law should treat the most serious crimes, such as attempted use of weapons of mass destruction, differently from less serious ones.

     Some correspondents suggested that the law should draw a different line: Geiger counters, they reasoned, are constitutionally permissible because they detect only evidence of criminal activity, while heat detectors can detect innocent behavior (e.g., using a dishwasher). And the line does have some support in the Fourth Amendment cases -- the Court concluded that dog sniffs of luggage don't trigger the Fourth Amendment's "unreasonable search" provision precisely because "the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited."

     But Kyllo, the heat detector case, does not rely on the notion that heat detector searches somehow obtain "unlimited" information; rather, its theory seems to be that any technological peeking into a home (as opposed to luggage in public) is unconstitutional. "The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained," the Court reasoned.

    Moreover, this sentence was shortly followed by the Court citing an earlier case which struck down police use of a technological device that was indeed capable only of identifying illegal material: an electronic tracking device that was attached to a can of ether that was bought by someone who said it was going to be used for drug manufacturing. "[T]he monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence," the Court held. (The Court specifically distinguished electronic tracking of devices in public, as opposed to in the home; such tracking of things in public place is considered constitutional.)

     So given Kyllo, I don't think the police could walk extremely sensitive drug-sniffing dogs past various homes, looking for drug scents emanating from the houses; certainly the dissenters in Kyllo interpreted the majority that way. (This isn't always a perfect cue to what the majority really means, but the majority did not disclaim this interpretation, and the interpretation is quite consistent with the majority's language and logic.) Likewise, I don't think the police could use Geiger counters, even if Geiger counters, like the drug-sniffing dogs, found only contraband.

     Finally, let's say that a Geiger counter did detect some innocent activity as well as bombs. (I am no expert on Geiger counters; I suspect that this may in some measure be the case now, but in any event let's just try this as a thought experiment.) Should that mean that Geiger counter sweeps searching for dirty bombs would become unconstitutional?

     I don't think so, and the reason is that the real distinction is not whether the technology detects only illegal conduct as opposed to some illegal conduct and some legal conduct. Rather, what really drives society's likely tolerance for Geiger counters is the very sensible conclusion that the rules for finding weapons of mass destruction cannot be the same as the ones for finding marijuana lamps.

 
[Eugene Volokh, 9:48 AM]
THE EXIGENT CIRCUMSTANCES EXCEPTION: Some correspondents suggested that the Geiger counter sweep scenario discussed in my Slate piece would be constitutional under the "exigent circumstances" exception. I don't want to get too technical here, but I have two broad answers:

     1. The existing exigent circumstances exception is an exception to the warrant requirement: For instance, if there's an emergency, the police can search a home based just on probable cause, rather than having to get a warrant based on that probable cause. But the exigent circumstances exception does not authorize blanket searches that are not based on any individualized probable cause to believe that some particular place contains evidence of a crime.

     2. One could, however, argue that the logic of this exception should be extended to a broader class of emergencies -- ones where there's reason to believe that there's an immensely destructive bomb hidden somewhere, but the police don't have any reason to suspect any particular home. In fact, that is indeed what I am arguing: That the Fourth Amendment rules must give the government more power to find such immense threats than the government has when looking for evidence of less serious crimes. My point is simply that this would require a change to constitutional doctrine, a change that would recognize that not all serious crimes should be treated identically.

 
[Eugene Volokh, 9:45 AM]
A FEW OTHER RESPONSES TO MY GEIGER COUNTER PIECE: Some very quick responses to some other reactions to my Geiger counter piece:

     1. Some people suggested that Geiger counters are different because the emission of radiation itself (even before the bomb is detonated) is a public health hazard, and the government therefore has the right to search for such emissions. I don't think that works: Low levels of radiation (such as might come from a dirty bomb that's moderately shielded and stored many yards away) create serious risks of cancer over time, but not for the couple of days that a dirty bomb might be stored in a house.

     2. Some suggested that there's no Fourth Amendment problem, even under traditional law, if the police have probable cause to believe that there's a dirty bomb somewhere in the city, and get a warrant based on that probable cause. But that can't be right: The police have probable cause to believe that there are murders, drug deals, and marijuana growing going on somewhere in the city, but that doesn't allow blanket sweeps -- or even the use of heat detectors -- to search for evidence of these crimes. The Fourth Amendment generally requires particularized probable cause that there's evidence in the particular place to be searched (the text itself demands that warrants "particularly describ[e] the place to be searched"), not general evidence that there's some crime somewhere in town.

     The rule must be different, I think, for Geiger sweeps for dirty bombs (or maybe even house-to-house searches for them) -- but precisely because dirty bombs are much more harmful than marijuana-growing.

     3. Some reason that Geiger counter monitoring isn't a search of the home because it only measures material that travels out of the house. But that very rationale was rejected as to infrared detectors in Kyllo: "The Government maintains . . . that the thermal imaging must be upheld because it detected only heat radiating from the external surface of the house . . . . But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house . . . ." The Court held that both the directional microphone searches and the infrared detector searches would be unconstitutional despite the fact that they only capture what travels outside the house. If Kyllo were literally followed (and recall that my whole point is that it shouldn't be), then Geiger counter searches would likewise be unconstitutional.

     4. Some correspondents have argued that Geiger counters are different because they're nondirectional; a recent Lawmeme item makes that point. I don't think this ultimately works: When you're driving through a neighborhood using a Geiger counter in order to find houses from which radioactive material might be being emitted, you're using it as a directional device -- you're using your position coupled with various Geiger counter readings (if we drive on a bit, does it seem like we're getting closer? further?) to find out which house contains something.

     Driving past houses with a Geiger counter is not, I think, in principle materially different from driving past houses with a heat detector constantly pointed off to the side -- both are ways of trying to "obtain[] by sense-enhancing technology any information regarding the interior of the home," in the words of Kyllo. That is their purpose and their effect. And the argument that "when using a geiger counter, one isn't detecting information regarding the interior of the home, but the local level of radiation in the street" is likewise equally applicable to heat detectors -- both detect information regarding the interor of the home by detecting the material (radiation or infrared radiation) that's present in the street.

     More broadly, it seems to me that these are all formalistic attempts to distinguish something -- radiation coming from dirty bombs -- that is different for functional reasons (the immense harm that detonating a dirty bomb can cause) rather than formal ones. Now I love formalism, if it reaches sensible results, and if it rests on formal distinctions that make sense. But I think that these formal distinctions don't really work; and the functional distinction is the one that is really needed to capture the Fourth Amendment's mandate that searches be reasonable.

 
[Eugene Volokh, 12:36 PM]
THANKS TO TAPPED: Just wanted to thank Tapped for their kind words about this site -- I much appreciate them, especially since the come from the other side of the political aisle. And as I've mentioned before, I likewise think highly of Tapped, which is a thoughtful and important voice on the center left.

 
[Eugene Volokh, 12:10 PM]
TENTATIVE THOUGHTS ON TORTURE: I've gotten quite a few messages in recent days about my earlier torture post, and I've also been involved in a discussion of the subject on a constitutional law professors' e-mail list. This has given me a chance to think some more about the matter, and generated the following very tentative thoughts:

     1. Risks: Let me say again what I've tried to say before -- there are lots of very good arguments against the use of torture, even in extraordinary circumstances. Once torture is legitimized in foreign wars, it becomes much easier to suggest that it be used for domestic terrorism (leftist, rightist, anti-abortion, environmentalist, etc.), and from then to domestic dissent that some think is related to rebellion. It likewise becomes much easier to use it in normal criminal prosecution ("Isn't the kidnapped little girl's life worth just as much as the lives of those who were saved by the use of torture in [some past incident]?").

     Many people whom I've heard discuss torture have, while focusing on its use as to the hidden-nuclear-bomb scenario, quickly slipped from cases involving the lives of thousands to ones that involve the lives of dozens or even individuals. And if we do have this slippage, then we do risk giving future governments an awful tool to be used, and abused, in lots of situations.

     Now, as the following suggests, I don't think that this is an open-and-shut argument against torture. Sometimes, a vast risk today (a hidden nuclear bomb or smallpox vial) may justify doing things that create risk for tomorrow. But I want to acknowledge up front the serious dangers of employing torture even in extraordinary circumstances. My arguments below are thus more rebuttals to certain arguments against torture, rather than endorsements of torture as such, even in extraordinary cases.

     2. Accuracy of information: Many correspondents have suggested that torture will be ineffective, because people will say anything, including falsehoods, under torture. I think this is a serious concern, but I want to offer a few observations on it.

     a. Plea-bargaining and testifying against coconspirators: To begin with, the concern about false confessions applies in some measure to all threats, whether threats of torture or threats of imprisonment. "If you confess to aggravated assault, we won't prosecute you for attempted murder" may lead an innocent defendant to confess to a crime he didn't commit. "If you testify against your coconspirators, we'll ask the judge to reduce your sentence" may lead a defendant to falsely implicate others.

     Now maybe these practices are themselves suspect. But our legal system has generally taken the view that they are necessary, and that while they pose a risk of false confession or false testimony, that risk is outweighed by their benefit. And at least as to getting testimony against coconspirators, I think that has to be so; otherwise, I think various organized criminal groups would be extremely hard to crack.

     b. Testimony vs. information that leads to evidence: This having been said, it's true that coerced testimony is quite unreliable; and defense counsel are good at pointing out its unreliability: "Ladies and gentlement of the jury -- the person testifying against my client is (1) a confessed criminal who (2) has a strong incentive (the risk of prison, the risk of execution, the risk of torture) to say anything to implicate my client. Why should you believe him?" It may be that testimony coerced through torture is even more unreliable than testimony coerced through the risk of a long prison term, or a death sentence, though I'm not completely sure about that.

     But the risk of unreliability is much less if the coerced statements (again, coerced by torture or by risk of prison or the death penalty) are used to uncover other evidence, such as the location of a bomb, the location of papers that contain details of the plot, the phone lines that can be tapped to get more information, and so on. An exclusionary rule barring the admission of the coerced statements but allowing the admission of the so-called "fruits" of those statements -- the evidence uncovered as a result of them -- would help maximize the accuracy of coerced statements.

     c. Torture practices: In fact, I would assume that -- if torture is indeed found to be permissible -- the torture practices would be set up to maximize the likelihood of accurate information. "Confess or we'll keep beating you" is likely to be an ineffective practice (let's set aside for a moment questions of legitimacy and focus only on effectiveness). "Tell us the location of the bomb / the documents / your coconspirators or we'll keep beating you and if you lie to us and we find out, we'll beat you much harder" may be more effective.

     3. Effectiveness: Which brings up the broader question -- is torture likely to be effective, even if done in the "smartest" possible way?

     a. Relevance to the constitutional question: I think this is an important question, for the constitutional inquiry as well as for the moral one. We do have a constitutional norm against torture, and a wise one. If the argument is "The Constitution must be understood as allowing torture when it's necessary to save thousands of lives," then that argument is powerful only if we have reason to think that the exception will save thousands of lives.

     b. Ignorance: But how do we determine whether torture (or, to be precise, torture conducted using the most effective known torture techniques) will indeed be effective? I really doubt that there are good studies on the subject, for the obvious reasons. Even the anecdotal evidence is likely to be highly skewed, because the great majority of instances of government-sponsored torture are probably kept very quiet.

     c. Wishful thinking: What's more, I suspect that the effectiveness judgments tend to be unusually skewed by wishful thinking, precisely because of lack of serious evidence. Those who want to find torture to be acceptable, perhaps because they think that this war can be won only by being maximally tough, will tend to take the rosiest view of the effectiveness of torture. Those who want to find torture to be unacceptable, on moral or slippery-slope grounds, will tend to assume that it will also be ineffective.

     d. Bottom line, as to effectiveness: So when we're determining how effective torture will be, evidence is of little help, and our intuitions are likely to be highly biased. This having been said, my intuition is that torture can indeed be effective, if properly done, in some circumstances.

     What's more, effectiveness is always a comparative inquiry: If the nuclear bomb / dirty bomb / smallpox vial is hidden in Manhattan, how effective will torture be, together with all the other investigative techniques that will presumably still be operating, as opposed to just the non-torture techniques? It may be that torture is a long shot, but everything else is a long shot, too.

     4. Unconstitutional, but people should do it anyway: Finally, some argue that torture should be unconstitutional and illegal, but that in the hidden-bomb scenario, law enforcement should do it anyway -- and be prosecuted and convicted for it, but then perhaps pardoned. This, the theory goes, will preserve the important moral norm that torture is wrong, even though we will expect that the norm will sometimes be violated.

     This is not a silly argument. It's obviously unsatisfying, but it can be defended as the lesser of two evils: On balance, the argument goes, more bad things will happen if (a) we legally allow torture than if (b) we forbid it but in some measure accept that the law won't always be followed. Once torture is legally allowed, then it will end up being overused. But if it's forbidden, then people's natural tendency to violate the law in the nuclear-bomb hypothetical may lead torture to be used at the proper level.

     But I confess that I find this troublesome, because it smacks too much of the pacifists who say that war is never permissible, but are secretly glad that their lives and liberties are being protected by the war that the nonpacifists are fighting. The problem with this faux pacifism isn't just that it's hypocritical; sometimes a certain degree of hypocrisy is better than the alternative. Rather, the problem, I think, is that it casts pacifism itself in disrepute among the public as a whole.

     Now I don't mind if this happens to pacifism, which I think is an unsound ideology. But constitutionalism and the rule of law, I think, are generally good ideologies; I don't want people to have contempt for them. And yet I fear that people who are (a) thankful for the efforts of the torturers who save thousands of lives and yet (b) have to see those torturers be tried and convicted (even if later pardoned) for their actions will end up having contempt for the legal system that would punish those whom the nation should be thanking.

     5. Conclusion. So where does that leave me? Sad, unsatisfied, and afraid. I'm afraid of the government acquiring the power to torture even the worst of the worst, since historically such powers have often been broadened and abused. At the same time, I'm obviously afraid of the terrorists -- and more broadly I'm afraid that we might need to be tough, to the point of brutality, in order to save our lives and the lives of our compatriots. I have no answer, though I hope that some of these observations may help others to arrive at one.

 
[Eugene Volokh, 12:01 PM]
"THE FOURTH AMENDMENT MEETS THE WAR ON TERROR": Not my title, but captures well the substance of my new Slate piece. Here's the Intro, as a teaser:

Imagine this scenario: The government learns there might be a dirty bomb hidden in your town, so the police start driving around with Geiger counters, looking for houses that have more radioactivity than normal. (Assume this is practically feasible, though there may be various potential difficulties with it.) Enter the courts: "No, no, no," they say, "that's an unconstitutional search, because it is an effort to determine what's in people's homes without probable cause and a warrant."

"Insanity!" some might say; and I'm pretty sure that judges would not, in fact, find a constitutional violation in such a situation. But existing Fourth Amendment precedents suggest that such police searches would indeed be illegal. And this, I think, helps show that the war on terror requires some special rules that differ from those used in ordinary criminal investigations.

 
[Eugene Volokh, 9:07 AM]
TRUTH SERUM: Here's another issue that the prospect of dirty bombs, and worse, may make us rethink: In Townsend v. Sain (1963), the Court held that confessions gotten using truth serum are involuntary, and thus inadmissible. Depending on the outcome of Chavez v. Martinez, which will be heard this coming Supreme Court Term, this may mean that even administering truth serum -- whether or not the results are used at trial -- is unconstitutional. (Let's assume for now that the truth serum is reliable enough to be useful as a tool for tracking down more evidence, whether or not it's reliable enough for the confession to be admissible at trial.)

     I think this is a sensible rule for ordinary criminal law enforcement. But if the dirty bomb / nuclear bomb / smallpox vial is hidden in Los Angeles, is it really the case that the Constitution prohibits the use of truth serum on a suspect? Let's say that we conclude that outright physical torture is just not allowed, no ifs, ands, or buts -- perhaps that's right. Are we really prepared to say the same even as to truth serum?

     Incidentally, according to USA Today, April 26, 2002,

Former CIA and FBI director William Webster said Thursday that the United States should consider administering "truth drugs" to uncooperative al-Qaeda and Taliban captives at Guantanamo Bay, Cuba, and elsewhere to try to obtain more details about terrorist operations.

So this question is not a hypothetical (and neither is the possibility that any weapons-of-mass-destruction exception to the ban on truth serums would also expand to cover enemy combatants and accused terrorists more generally).

 
[Eugene Volokh, 8:56 AM]
TORTURE: Someone posed the following question, which I think was aimed at demonstrating the absolute immorality of torture, under any circumstances: Assume that you were highly confident that Moussaoui knew that al Qaeda had plans to detonate a bomb -- one that would kill thousands of innocent people -- in, say, New York. And assume that you think Moussaoui might tell you the location, which might help you prevent the explosion, if you beat him up for a while. Would you be willing to personally beat him up? Break his arms? Dangle him out of a high window?

     Here was my answer: Yes.  Of course.  In a flash, and I wouldn't feel at all guilty about it.  I'd worry about what would happen when lots of other government officials, whom I might not trust, would do the same in other situations, but that's a separate story.
     Here's this man who I'm highly confident is engaged in a conspiracy to murder thousands of innocent people; and I think there's a chance that I can get the information necessary to stop this simply by beating him, breaking his arms, and threatening to kill him.  I'm supposed to allow thousands of innocent people to die in order to spare this would-be mass murderer pain -- and to spare myself the discomfort of having to torture him?

     I would count myself as having acted deeply immorally if I had the opportunity to try to beat the information out of him and failed to do so.  I would be vastly ashamed at allowing thousands of innocent lives to be lost as a result of my squeamishness.

     This surely does not prove that it's right to allow torture: There are all sorts of other problems with allowing torture as a standard governmental practice, even one reserved for extraordinary circumstances. Once you allow it to save thousands, someone who wants to save hundreds will ask why their lives aren't valuable enough to justify it; then it might easily be allowed to save dozens, or even one poor innocent girl who had been kidnapped by some monster (after all, murder is murder, whether by a terrorist or some demented sex offender). Likewise, from torturing the clearly guilty it's easy to slip to torturing the probably guilty, or those who aren't guilty of the conspiracy but likely to know something about it, or even total innocents (for instance, the terrorist's relatives). These are very serious concerns. (It's also easy to overestimate the likely efficacy of torture, as some recent e-mails that I've gotten have said; I'm actually not that persuaded by this view, and I hope to blog more about the subject later, but this too is a serious argument.)

     But I just do not understand a moral system that would choose to prevent pain, indignity, or even death to a terrorist -- at the cost of not saving the lives of thousands of innocent people.