[Eugene Volokh, 3:16 PM]
PERSPECTIVE PLEASE: Tapped is right to berate Cal Thomas for his column on the Pledge (though I think their comparison of Thomas's words to the Falwell/Robertson post-Sept. 11 nonsense is itself overstated):

On the eve of our great national birthday party and in the aftermath of Sept. 11, when millions of us turned to God and prayed for forgiveness of individual and corporate sins and asked for His protection against future attacks, the 9th Circuit Court of Appeals in San Francisco has inflicted on this nation what many will conclude is a greater injury than that caused by the terrorists.

     Really? Removing "under God" is worse than the deaths of 3000 people?

     The rest of Thomas's column is actually not bad, as Tapped acknowledges -- and I stress again that there are good arguments against the Ninth Circuit's decision, as well as in support. Thomas's analysis of the political effects of the decision, in particular, may be quite right (though his statement that "we penalize anyone who dares to speak well of God and treat the Bible as contraband, where once it was welcomed and even given out free in schools" misses a critical point -- the Supreme Court has repeatedly and correctly reaffirmed that private individuals are free to speak well of God, even in public schools; the question is what the government may say about God).

     But substantive disagreement with the pledge decision, plausible as the disagreement may be, can't excuse bunk like the opening paragraph I quoted above.

 
[Eugene Volokh, 1:52 PM]
DAYPOP: I was very pleased to see that the Pledge of Allegiance post is a whopping #34 on the Daypop Top 40. It's with a little red arrow pointing down, so it'll be off the list soon, but I guess I can look at the bright side and infer that at some point it was higher up (#33, perhaps!). It's these little things that fill a blogger's heart with gladness . . . .

P.S.: Just noticed that the great Lileks is #7, going up. Puts things in perspective!

 
[Eugene Volokh, 11:45 AM]
SECULARIZING PRESSURE: In the wake of Zelman, some have argued that school choice might hurt religious schools by bringing extra government oversight and regulation and thus destroying religious schools’ independence. (I say extra because private schools may already be regulated in considerable measure by the government -- lower courts have generally rejected constitutional objections to their regulation, whether or not they get government funding.) True, the argument runs, schools could just avoid the strings by rejecting the money; but when put to the choice of

1. taking the government subsidy and compromising their religious objections to the strings, or
2. sticking by their beliefs but losing the subsidy,

they may feel pressure to choose the secularizing option. And the possibility of such pressure, the argument goes, is either a policy argument against school choice, or should actually make courts conclude that school choice violates the Establishment Clause.

     I think there’s something to the policy argument -- but not nearly enough to carry the day. To begin with, the argument is equally applicable to all neutral aid programs, not just ones involving K-12 schools. If you take it seriously, you’d have to say that students shouldn’t be able to use GI Bill funds at religious colleges, and donors shouldn’t get a charitable tax deduction for religious contributions.

     Exhibit A here would be Bob Jones University v. United States (1983), in which the government used the withdrawal of a tax exemption to pressure Goldsboro Christian Schools into abandoning its religiously motivated racially discriminatory admissions policy. Does that mean that we should "protect" religious institutions from this pressure by just discriminatorily denying them all charitable tax exemptions in the first place? I don't think so, but that's the logical implication of the anti-school-choice argument.

     But more importantly, this focus on the pressure caused by school choice programs blithely ignores the greater pressure exerted by the status quo. After all, just as religious schools might conceivably object on religious grounds to some strings that come with school choice funds, so today many religious parents object on religious grounds to many aspects of the curriculum and environment in government-run public schools. The offer of a free education in a government-run school puts these parents to the choice of

1. taking this government subsidy and compromising their religious objections to the curriculum or environment, or
2. sticking by their beliefs but losing the subsidy

-- and of course many of these parents feel pressure to choose the secularizing option.

     So the supposed defect -- here, the risk of government pressure that leads some to abandon their religious obligations -- is as present under the existing system as under a school choice system.

     In fact, it may be greater under the existing system. School choice programs might come with a few strings, but a school choice system at least can take a mostly hands-off approach to the conduct of each private school -- just as the tax deduction system attaches some strings to the charitable deduction, but not many.

     But the government obviously can’t take such an approach to the conduct of government-run schools, and thus government-run schools necessarily impose a vast range of “strings” on their students: You must take classes that teach you this-and-such, and are structured in the following way; you must be around students who dress in ways you might think immodest (and thus spiritually harmful for you to look at), or use language you might think is blasphemous (and thus spiritually harmful for you to hear); and so on. This is inevitable for any school that the government itself not only indirectly funds, but directly runs.

     Government-imposed conditions that pressure people to compromise their religious beliefs should thus be less serious under a school choice system than they are today. At the very least, they would be no more serious.

 
[Eugene Volokh, 11:28 AM]
THE TROUBLE WITH THE AMERICANS WITH DISABILITIES ACT: Michael Kinsley has a very good Slate column on the subject. I'm not sure I entirely agree with it; I think the entire statute is unwise, and I'm not sure he'd go that far. But it's much worth reading.

 
[Eugene Volokh, 9:51 AM]
MORE ON RELIGIOUS OBJECTIONS TO DRIVER'S LICENSE PHOTOS: Chris Rohrbacher, who first pointed me to the story about the Muslim woman who doesn't want to be photographed without her veil (see an earlier blog post for some legal discussion of this), also passes along the results of some research that he just did:

[At least] six states (Arkansas, Kansas, Minnesota, Missouri, North Carolina, and Oregon) allow[] specific religious exemptions from driver's license photograph requirements. There may be other such statutes that [I] missed.

Arkansas: "A license may be valid without a photograph of the licensee when the commissioner is advised that the requirement of the photograph is either objectionable on the grounds of religious belief or the licensee is unavailable to have the photograph made." Ark. Code 27-16-801(b)(2)

Kansas: "Any person belonging to a religious organization which has a basic objection to having their picture taken may sign a statement to that effect and such person shall then be exempt from the picture requirements of this section." Kan. Stat. 8-243(a)

Minnesota: "Notwithstanding the provisions of section 171.07, the commissioner of public safety may adopt rules to permit identification on a driver's license or Minnesota identification card in lieu of a photograph or electronically produced image where the commissioner finds that the licensee has religious objections to the use of a photograph or electronically produced image." Minn. Stat. 171.071(1)

Missouri: "The director of revenue shall issue a license without the photograph to an applicant therefor, who is otherwise qualified to be licensed, upon presentation to the director of a statement on forms prescribed and made available by the department of revenue which states that the applicant is a member of a specified religious denomination which prohibits photographs of members as being contrary to its religious tenets. The license shall state thereon that no photograph is required because of the religious affiliation of the licensee." Mo. Rev. Stat. 302.181(5)

North Carolina: "The Commissioner may waive the requirement of a color photograph on a license if the license holder proves to the satisfaction of the Commissioner that taking the photograph would violate the license holder's religious convictions." N.C. Gen. Stat. 20-7(n)

Oregon: "Except as otherwise provided in this subsection, a license shall bear a photograph described in this subsection. The Director of Transportation, by rule, may provide for issuance of a valid license without a photograph if the applicant shows good cause. The director shall include religious preferences as good cause for issuance of a license without a photograph but shall not limit good cause to religious grounds." Or. Rev. Stat. 807.110(6)

Idaho has a law which allows persons to wear religious headgear so long as the face is not concealed: "Every driver's license shall bear a color photograph of the licensee, which shall be taken by the examiner at the time the application is made. The photograph shall be taken without headgear or other clothing or device that disguises or otherwise conceals the face or head of the applicant. A waiver may be granted by the department allowing the applicant to wear headgear or other head covering for medical, religious or safety purposes so long as the face is not disguised or otherwise concealed." Id. Code 49-315(2).

Now these exemptions may be bad ideas, especially given the terrorist threats we now face. My tentative view would be to oppose them. But the practices of some of these states might suggest that the Florida woman's religious exemption claim isn't as silly as it might at first appear -- especially given that the Florida legislature, in enacting its Religious Freedom Restoration Act, has generally spoken out in favor of religious exemptions.

 
[Eugene Volokh, 9:25 AM]
FOLLOW-UP TO MY NATIONAL REVIEW COLUMN: Reader Mark Wilson writes "I think it's not so much a matter of conservatives learning the value of freedom and liberals forgetting it, but rather a matter of who controls the government. When conservatives controlled the government, they didn't wanted the government to make all of the decisions. Since they were in charge, this was the safest way to make sure that only decisions they agreed with would be made. Now that liberals control government, they are now the ones who want government to make all the decisions."

     There's a lot of truth to this: I think the conservative shift I outlined is in considerable measure a reaction to the left's attempts to restrict speech on campuses and in other places, and to the left's increasing dominance in education from the 1960s on. But I think that many conservatives -- including some Justices, especially Justice Kennedy, who is the Justice who takes the broadest view of free speech -- have learned a broader, and I hope more permanent, lesson from that: I think they have found a new appreciation of the danger of government cultural control more generally. Once bitten, twice shy.

     Maybe I'm wrong; maybe when conservatives are firmly back in power, they'll revert to the right's old support for the elite management model. But I don't think so, at least for quite a while, in part because it's clear to them that no-one is ever "firmly" in power, and that their adversaries will eventually be in charge yet again.

     It might be better if more people came to libertarianism because of deep philosophical commitment to restricting government power, rather than because their fear of the other side in power overcomes their desire for power for themselves. Still, I'll take libertarianism any way I can get it, and if it comes from people's desire for self-protection, that's not bad.

     That, I believe, is the history of religious freedom in 1600s and 1700s America: Religious groups all wanted to run their own theocracy, but when they saw how often they'd lose to the other theocrats, they agreed on mutual disarmament -- religious freedom. As the Framers recognized, the way to get liberty and security isn't by expecting an unnatural liberal spirit and commitment to duty, but by harnessing people's natural selfishness and ambition.

 
[Eugene Volokh, 9:23 AM]
JUDICIAL CANDIDATE SPEECH: My op-ed on the judicial candidate speech case -- with a connection to the policy debates about school choice -- is up at the National Review Online. Here's an excerpt:

All five conservative justices vote in favor of a free-speech claimant. All four liberals vote in favor of the government. A seemingly surprising lineup, especially when the issue isn't a traditional left-right question such as campaign finance or religious speech.

But this 5-4 split in Thursday's judicial-campaign case (Republican Party v. White) tells us much about how far conservatives and liberals have moved since the 1960s and 1970s. In this case, and in other debates, conservatives have become populist libertarians, who trust the people and free speech -- and liberals have become supporters of elite management, who trust the government and regulation.

Check it out.

 
[Eugene Volokh, 9:40 PM]
TRAFFIC: 4822 hits as of 9:40 PM, which means we'll probably break 5000 today -- a first for this blog, I believe. Thanks to all who visited!

UPDATE: Actually, we topped out at 4949, but that's still beats our previous maximum by about 200.

 
[Eugene Volokh, 6:25 PM]
AMTRAK: I'm not an expert on this subject, but Chris Suellentrop's piece on Amtrak in Slate struck me as quite good.

 
[Eugene Volokh, 5:31 PM]
SCHOOL CHOICE: I've finished reading the school choice decision, and am now busy editing it down for the 2002 Supplement to my First Amendment textbook. (It's due July 15, and I'll be leaving town on July 7, so time is short.) The decision is, I think, absolutely correct; I might have some more specific thoughts about it later, but for now let me point to my article called "Equal Treatment Is Not Establishment," which argues that, well, equal treatment is not establishment.

 
[Eugene Volokh, 3:04 PM]
SCHOOL CHOICE AND BAD RELIGIONS: Instapundit quotes reader Harry Helms as asking:

Wonder if all the cultural cobservatives applauding today's Supreme Court decision on vouchers realize this means their tax dollars can now be used to support students attending Islamic madrasas? And what will be the reaction of those same conservatives when they learn about vouchers being used by parents who want to give their children an education in an "Islamic-based environment"?

     Mr. Helms properly identifies an important political issue -- but I think the political response is clear. Our tax dollars already support views, religious and otherwise, that we find abhorrent.

     The income tax exemption for charitable donations is equivalent to a subsidy, a sort of matching-funds grant, as both economists and judges have long recognized this. If I'm in an aggregate 40% federal and state tax bracket, and I donate money to exactly the same nonprofit school (assuming that it's really a donation for the education of others' children, and not just payment for my own child's ), the government is essentially contributing $1000 for every $1500 that I donate. (If I donate $2500 to the school, I save $1000 from my tax bill; the government ends up with $1000 less than it would have but for my donation, I end up with $1500 less than I would have for my donation, and the group ends up with the $2500.)

     Likewise, if I'm a government employee -- or a welfare recipient -- and I spend my money on tuition at that school, tax money indirectly flows there, no matter how abhorrent it might be to some taxpayers. True, it flows there solely as a result of my private choice. But the same is true for school vouchers, which also cause money to flow to the institution, as a result of my private choice.

     People can, should, and I think generally do accept this. They realize that charitable tax exemptions can help support both good charities and bad ones. They realize that government paychecks or welfare checks can be spent both on good causes and on bad ones.

     Likewise, I think it shouldn't be hard to persuade people of this for school choice. Yes, choice can be misused. Yes, this means that indirectly taxpayers will help fund bad causes -- just as they already do via the tax exemption, via government employees' salaries, and via welfare checks. But that's not a problem, so long as the decisions about where to send the funds are made by private people, whether donors, employees, welfare recipients, or parents. And the overwhelming majority of these decisions will be good ones, and only a tiny fraction will be bad ones.

 
[Eugene Volokh, 2:32 PM]
NICE TO SEE: My friend Jack Schaedel passed along today's The New Republic Online Politics e-mail, and it included a "From the Archives" excerpt from my earlier article on school choice:

"...while school choice raises many difficult policy questions, its constitutionality should be clear. The best way to read the Establishment Clause is that it requires neutrality with respect to religion, not exclusion of religion from even-handed government benefits, which is in fact a form of discrimination against religion. We usually take this principle for granted when it comes to such public services as police protection, garbage collection, and the G.I. Bill. After all, we'd be appalled if the fire department refused to take calls from churches on the theory that 'There's a wall of separation around your church, and we can't cross it to help you.' Government shouldn't give preference to churches, but it shouldn't discriminate against them, either. This is quite consistent with the separation of church and state--government maintains its separation by treating institutions equally, without regard to whether they are secular or religious. On this logic, religion-neutral school voucher programs would be clearly constitutional."

--Eugene Volokh, TNR, July 6, 1998

Nice to see that my past words turned out to be prescient -- too often I end up being 180 degrees off the mark.

 
[Eugene Volokh, 2:11 PM]
JUDICIAL CAMPAIGN SPEECH: I'll have an op-ed on the judicial campaign speech case tomorrow morning in National Review Online. Watch for it . . . .

 
[Eugene Volokh, 11:44 AM]
RADIO: I'll be talking about church-state questions -- including both the Supreme Court school choice case and the Ninth Circuit pledge case -- in Los Angeles on "To the Point," KCRW (89.9 FM), at 1 pm today. It should also be available on the Web.

 
[Eugene Volokh, 10:28 AM]
WEARING A VEIL IN A DRIVER'S LICENSE PHOTO: A reader pointed me to a fascinating story in today's New York Times: "A Muslim woman who says the state is violating her religious rights in demanding that she remove her veil for a driver's license photograph will be in court this week to try to regain her driving privileges." Florida has a Religious Freedom Restoration Act (RFRA) that generally allows people to get exemptions from laws that violate their religious beliefs, unless the government shows that the law is "narrowly tailored to a compelling government interest." (I wrote an academic article a while back about these RFRAs; it's too long, but I hope it's otherwise relatively readable by laypeople.)

     The article does not mention that a similar issue came up in the 1980s, and a court -- though not in Florida -- upheld the religious objector's claim (see Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), affirmed by an equally divided court, 472 U.S. 478 (1985)), in large part becase the state already gave various other exemptions from the photograph requirement. I'm not sure that courts today would or should follow this decision, especially if Florida had an across-the-board policy of requiring people's faces to be exposed on their photos, and didn't make exceptions from this policy for nonreligious reasons. But I still thought I'd mention Quaring, because it's the one precedent that's most closely on point.

 
[Eugene Volokh, 9:02 AM]
ONE FOR THE QUOTATION BOOKS: From Justice Scalia's majority in today's Republican Party v. White case: "Campaign promises are -- by long democratic tradition -- the least binding form of human commitment."

 
[Eugene Volokh, 8:05 AM]
RESTRICTIONS ON SPEECH BY JUDICIAL CANDIDATES STRUCK DOWN: Opinions here. Again, I haven't read them yet, but it does seem like the vote is the 5-4 conservative/liberal split -- with the conservatives voting to uphold the free speech claim and the liberals voting to reject it. More news later.

 
[Eugene Volokh, 8:03 AM]
SCHOOL CHOICE OPINIONS are now online. The other three cases today are likewise available.

 
[Eugene Volokh, 7:48 AM]
COURT UPHOLDS SCHOOL CHOICE: Haven't read the opinion yet -- it should be posted on the Web any minute now.

 
[Eugene Volokh, 6:41 PM]
EN BANC: Reader Dave Menke writes: "Isn't it relatively likely that the 9th Circuit would agree to rehear the Pledge case en banc?"

     It's true that if the majority of the 9th Circuit's judges voted to have the case reheard "en banc," which is to say by a panel of 11 of the Circuit's members, it would be so reheard. But I just doubt that the votes are there.

     One very rough data point: There are 24 active judges right now (out of an authorized complement of 28), of which 7 are Reagan or Bush, Sr. appointees and 17 are Carter or Clinton appointees. Now some of the Democratic appointees, especially the ones appointed by Clinton, are fairly moderate, but even if all 7 Republican appointees vote to rehear the case (far from certain), there'd need to be 6 Democratic appointees joining them. I just don't think that's very likely, especially since there's usually a presumption against rehearing en banc; even some judges who think the case was wrongly decided may just not want to spend more of the court's resources rethinking the matter. (I stress again that the appointing President's party is a very rough predictor of people's views on these things, but it's the best one I've got.)

     What's more, even some judges who disagree with the 3-judge panel's decision may think "There's a split among the circuits, and it's a hot-button issue; the Supreme Court will agree to hear the case, so why should we waste our time trying to fix the problem ourselves?" I'm not sure how common this attitude is, but I think it is a factor at least for some judges. So the bottom line: It'll be much easier to get a Supreme Court with a 5-4 conservative majority to hear this case, than to get a Ninth Circuit with a 17-7 liberal majority to hear it.

 
[Eugene Volokh, 5:45 PM]
POLITICS: A reader asked: "Do you really believe, as your blog implies, that there is the slightest chance that the Supreme Court will hold the Pledge of Allegiance unconstitutional? That seems politically inconceivable to me . . . ."

     The Supreme Court will mostly certainly not hold the Pledge of Allegiance unconstitutional; at most it might (as did the Ninth Circuit) hold it unconstitutional to include "under God." The rest of the pledge would remain perfectly fine, in the same state as it was until 1954 -- during World War II and the Korean War.

     Would even this be politically inconceivable? I don't think so. In 1943, the Court held that it was unconstitutional to legally require children to participate in the pledge; I doubt this was politically popular during World War II, but they did it. In 1962, the Court struck down school prayer; this aroused vast criticism, as I'm sure the Justices must have expected, but they did it. I doubt that the Court worries that much about these sorts of political considerations. It must consider them in some measure, but not that much.

     The real question is what the Justices really think is right. As I said, based on their past votes in Establishment Clause cases, Chief Justice Rehnquist and Justices Scalia and Thomas are pretty sure to uphold the pledge. Justices O'Connor and Kennedy likewise seem likely to uphold it, based on their statements in past cases.

     But it's possible that O'Connor and Kennedy will on reflection conclude that their preferred Establishment Clause -- no endorsement (O'Connor) and no coercion (Kennedy) -- should be read broadly enough to render the Pledge unconstitutional. I doubt this, but that's just because it's always safer to bet that people will stick with their previous views rather than change their minds. After all, their previous views were persuasive to them then, so chances are they will be now, too. Still, the prediction is best made based on the Justices' stated legal views, and not on what we think is politically feasible.

 
[Eugene Volokh, 5:18 PM]
THE ESTABLISHMENT CLAUSE AND OFFENSIVENESS: A friend of mine e-mailed me, suggesting that courts are right to ban the phrase "under God" because this sort of phrase can offend the nonreligious. This in fact is part of the reason that some Justices have given for interpreting the Establishment Clause as barring government speech that endorses religion.

     I don't think this focus on offensiveness really works. After all, lots of people are offended by the possibility that public schools will have to remove the phrase "under God" from the Pledge. Lots of people were offended by the ban on teacher-led public school prayer or public graduation prayer.

     It's possible that more people were offended by these decisions than were offended by the religious speech in the first place. In this sort of Establishment Clause case, whichever way a court decides, someone will be offended.

     Ah, some might say: Those who are offended by the removal of the religious terms are unreasonable to be offended, because the removal is required by the Establishment Clause. On the other hand, those who are offended by the religious terms are reasonably offended, because the use of the religious terms is unconstitutional, and it's quite proper for people to be offended by unconstitutional symbolism.

     But that argument assumes the conclusion -- of course, once we conclude that removal of "under God" is mandated by the Establishment Clause, it shouldn't much matter that some people might be offended by this constitutionally mandated action. What's doing the real analytical work here, however, isn't the focus on "offensiveness"; rather, it's the original assumption that the use of "under God" is unconstitutional.

     Now this doesn't prove that the Ninth Circuit's decision was wrong: Perhaps the Establishment Clause should be interpreted as barring endorsement of religion, on the theory that when the government endorses some religion -- or religion generally -- it is indeed establishing it as the official religious position of the state. Or perhaps the Establishment Clause should be interpreted as barring government action that psychologically pressures children into expressing religious views. There are good arguments both ways on this score.

     But while focusing on the propriety of endorsement or psychological pressure may be important and helpful, focusing on offensiveness is not. The question whether people are offended by "under God" -- or by the removal of "under God" -- ought not, I think, be part of the constitutional analysis.

 
[Eugene Volokh, 4:37 PM]
"SHREDDING THE CONSTITUTION": A persuasive opinionjournal.com op-ed by Pete du Pont, criticizing the International Criminal Court.

 
[Eugene Volokh, 3:46 PM]
RADIO: Just heard that I'll be on the radio very briefly tonight in Los Angeles ("Which Way L.A.", KCRW, 89.9 FM, some time between 7 and 7:30 pm), talking about the pledge of allegiance.

 
[Eugene Volokh, 3:23 PM]
PLEDGE OF ALLEGIANCE: Just finished talking to at least 8 different journalists about the case -- it's definitely the event of the day. Here are a few general observations:

     1. The Ninth Circuit's decision is a perfectly plausible application of the Supreme Court's precedents on the matter. The Court has held that it's unconstitutional for the government to endorse religion, and to do things that have the tendency to coerce people (even via social pressure rather than the threat of legal sanction) into expressing religious views.

     If you apply these principles to their logical conclusions, "under God" in the pledge is indeed unconstitutional. After all, the government is endorsing all the sentiments in the pledge, and students may feel some social pressure to say it, even if they have the legal right to abstain. You can argue about how great that social pressure is, but it seems no less than the social pressure that the Court found coercive in Lee v. Weisman (1992), which struck down graduation prayers.

     Various Justices have at times suggested that the Pledge is indeed constitutional, but the Ninth Circuit was right to say that these suggestions were just relatively unconsidered dictum -- discussions of matters that really weren't at issue in the case -- and thus aren't legally binding. So this isn't some liberal court creating some new constitutional right, or defying Supreme Court precedent. The Ninth Circuit's decision wasn't dictated by the Court's precedents, but it was certainly a plausible application of them.

     2. At the same time, Judge Fernandez's dissent makes a sensible argument that the endorsement and coercion tests should not apply to all references to God. America has a long tradition, as he points out, of "ceremonial Deism" -- the use of general and relatively nondenominational references to God (though of course all references to God do prefer some religious beliefs over others) to solemnize various occasions or sentiments. We see it in the Declaration of Independence, in the Star-Spangled Banner, in various other patriotic songs, in nearly all the preambles to state Constitutions, and in other contexts.

     These sorts of references, Judge Fernandez argues -- and Justice O'Connor, an important swing vote in these cases, has generally agreed with this -- should not be seen as unconstitutional, because they are such a firm part of American constitutional traditions.

     3. The Supreme Court is quite likely to agree to hear this case. The Seventh Circuit upheld the "under God" in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), so there's now a split between the circuits, and the Court is generally much likelier to hear cases where there's a circuit split than where there isn't. And this general tendency to seriously consider hearing cases where there's a circuit split should be even stronger here: I can't imagine the Court allowing this famous part of American civic culture to be forbidden in the Ninth Circuit but permitted in the Seventh.

     4. The likeliest bet for the Supreme Court result, assuming no retirements, is a 5-4 vote to uphold the "under God." Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas are quite likely (though, in Justice Kennedy's case, not absolutely certain) votes to uphold the "under God"; and Justice O'Connor, though quite committed to the endorsement test, has said in the past that she does not see the Pledge as being an unconstitutional endorsement. "In my view, the words 'under God' in the Pledge, serve as an acknowledgment of religion with 'the legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.'" Wallace v. Jaffree (1985) (O'Connor concurring).

     But this isn't completely certain -- one can imagine a 5-4 decision affirming the Ninth Circuit, in which Justices Stevens, Souter, Ginsburg, and Breyer (quite likely votes for a broad anti-endorsement principle) are joined by Justice O'Connor, who might have changed her views on this since 1985. One can even imagine Justice Kennedy concluding, as he did in the graduation prayer case, that this practice is a constitutionally impermissible psychological coercion.

     5. Even those who sympathize with the Ninth Circuit's decision, or who think that it's no big deal, might be troubled by the risk of the slippery slope. Will courts hold that government-run events can't feature all the stanzas of the Star-Spangled Banner? That they can't have people singing America the Beautiful? Some people might say "yes, and that's good"; but others might be quite troubled by courts forcing the rejection or bowdlerization of important parts of the American cultural heritage (much more important than the "under God" in the Pledge, which has only been around since 1954).

     Now these items can be distinguished from the "under God", perhaps precisely because of their cultural and historical significance. But will they be?

     We have indeed seen a slippery slope towards more and more extirpation of religious symbolism from American civic life (or at least that part that's conducted by the government). It started with the school prayer decisions (1962 and 1963) -- which I think are quite right. It went on to the Ten Commandments (1980), creches (1989), and graduation prayers (1992). Now it goes on to part of the Pledge of Allegiance, even though in the creche case the Court suggested that the Pledge of Allegiance would be treated differently.

     In a legal system that's built on analogy and precedent, principles often expand past the boundaries that even their authors originally urged. It's easy enough to imagine a future court expanding the "no endorsement" / "no psychological principle" to The Star Spangled-Banner, even if we think that it shouldn't be.

 
[Eugene Volokh, 11:47 AM]
"UNDER GOD" IN PLEDGE OF ALLEGIANCE HELD UNCONSTITUTIONAL: The federal court of appeals for the Ninth Circuit just held this, and it's quite a surprise. If this ruling stands, schools won't just have to let objecting students not participate -- that's been the law since 1943 -- but will have to excise "under God" from the pledge altogether. Haven't read the case in its entirety yet, but will do that right now.

 
[Eugene Volokh, 10:36 AM]
ASHCROFT AND "GIV[ING] AMMUNITION TO AMERICA'S ENEMIES": On Dec. 6, 2001, Attorney General Ashcroft said, in testimony before the Senate Judiciary Committee,

. . . Since 1983, the United States government has defined terrorists as those who perpetrate premeditated, politically motivated violence against noncombatant targets. My message to America this morning, then, is this: If you fit this definition of a terrorist, fear the United States, for you will lose your liberty.

We need honest, reasoned debate; not fearmongering. To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists -- for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

Our efforts have been carefully crafted to avoid infringing on constitutional rights while saving American lives. We have engaged in a deliberate campaign of arrest and detention of law breakers. All persons being detained have the right to contact their lawyers and their families. Out of respect for their privacy, and concern for saving lives, we will not publicize the names of those detained. . . .

The sentences "Your tactics only aid terrorists -- for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends." have been bedeviling Ashcroft ever since. His many critics often quote them as evidence of his insufficient respect for constitutional rights (see, for instance, a recent Slate piece), and critics of the Administration more broadly point to them as evidence that the Administration is generally trying to stifle dissent (though in fact actual governmental attempts to use the force of law to suppress free speech have been thankfully rare in the War on Terrorism).

     Since these words come up time and time again, I thought I'd make three observations about them:

     1. Perspective. Here's another sentence that we've heard considerably less about:

Our nation has felt the lash of terrorism. We know its terrible costs, and we know that only America can lead the world's fight against it. We can't let [a certain political group that opposed the speaker's proposed legislation] turn America into a safe house for terrorists. Congress should get back on track and send me tough legislation that cracks down on terrorism. It should listen to the cries of the victims and the hopes of our children, not the back-alley whispers of [the group].

The named political group was "the gun lobby," the speaker was President Clinton, and the occasion was a March 1996 radio address in which Clinton was defending his Administration's legislative proposals, which had come under attack from people who thought the Administration was jeopardizing people's constitutional rights.

     This doesn't show that Ashcroft was right -- perhaps both he and Clinton spoke too harshly. But it does help put things in proper perspective: Administrations do indeed have a tendency to make such arguments against their critics, especially when the critics themselves speak harshly (Ashcroft was testifying in front of the committee run by Senator Leahy, who had earlier said [ABC News, Nov. 18, 2001] that the military tribunals proposal was tantamount to "shredding our Constitution"). Their critics tend to bristle, perhaps justifiably. And the critics' dissent then generally proceeds apace.

     2. Factual Accuracy. My next thought is that Ashcroft's criticism is quite possibly accurate, a point that has been largely lost in reactions to it. Internal dissent does give comfort to our enemies. First, to the extent that our enemies feel that we're too soft to be able to effectively fight them, and that their ruthlessness will prevail over our pretensions to civilization, domestic criticism of harsh proposals may reinforce their views, and boost their spirits.

     Second, the very fact that we seem to be internally divided, and that some of us are harshly criticizing the Administration may further reinforce our enemies' resolution. And third, the dissent creates a paper trail that our enemies -- and others who are unfriendly to us -- can use when we eventually end up putting various proposals (e.g., military tribunals) into action. "What a travesty of justice!," our enemies can shout. "Even the American Senator Patrick Leahy said that these tribunals are 'shredding [the American] Constitution'; even conservative American columnist William Safire said they were 'kangaroo courts.'" This could be a potentially powerful propaganda tool for the enemy, even though it of course wasn't intended this way by Leahy or by Safire.

     Now I doubt that criticisms such as Leahy's, to which Ashcroft was responding, would help the enemy that much. Morale and propaganda may be important, but effective military attacks affect enemy morale much more than the statements of domestic dissenters. Nonetheless, Ashcroft's statements were at least factually quite defensible, and probably factually correct.

     3. The Propriety of Dissent. But Ashcroft can, I think, rightly be faulted (though not nearly as much as his critics fault him), even if his arguments were factually defensible. And the reason is that it's proper for Americans to jealously guard our constitutional rights even when their dissent may inadvertently provide some help to our enemies.

     The principle of our constitutional system is not "effective government above all" or "national unity and resolve above all," even during war-time (especially when the war is one that could last for decades, because we might never know for sure that our enemy has been adequately defeated). The Framers recognized that threats to our liberty and safety can, unfortunately, come from our own government as well as from foreign enemies, rebels, and criminals; and they set up both a constitutional system and a constitutional tradition in which domestic criticism of the government helps keep the government's well-meaning zeal in check.

     Sometimes this criticism can actually advance effective warmaking, because it can help identify inadequacies in the way a current Administration is engaging in the war effort. Debate over the effectiveness of the military, security, and law enforcement apparatus can seem like a weakness of democracies, but it is actually, on balance, part of their strength.

     And sometimes this criticism may aim to protect our liberties even at some cost to effective warmaking. Naturally the critics should come at it with a sense of balance: We can't be so fearful of our government that we strip it of the essential tools that it needs to protect us; and we do need to be mindful of the danger that our criticism will embolden the enemy.

     But while there may be much to be said for military tribunals -- I tentatively support them, at least in some instances -- and other Administration proposals, it's far from clear that they are so essential, and it's far from clear that the enemy's morale or our nation's credibility will be affected that much by the dissent. Legitimate, thoughtful critics can reasonably believe that tribunals would on balance hurt our aggregate liberty and security more than they help them.

     The Attorney General's error, I think, was in not stressing this enough in his comments, and in framing them in a way that could be understood as impugning the patriotism of those who genuinely disagree with the Administration's balancing of constitutional rights and security needs. Military tribunals may be necessary, but their use should rightly give people pause, and should rightly raise questions. Acknowledging that the Administration's critics were sincerely concerned about the Constitution, and explicitly saying that the harmful consequences of this dissent were inadvertent, would have been much better -- just as Clinton in his day should have expressed his substantive views without seeming to attack "the gun lobby" as some sneaky band of terrorist-lovers.

     The tone of an Administration's statements matters, especially in an environment of uncertainty: People don't know what the government's future plans are, so they use government officials's expressed world-view as a harbinger of the government's likely future actions. When the Administration (Clinton or Bush) suggests that its adversaries are not just mistaken but unpatriotic in their defense of constitutional liberties, many people may infer that the Administration will be too likely to balance away those liberties -- and the liberty to dissent.

     Most of us acknowledge that our liberties must sometimes give way, but we want to be sure that the government will value them highly, and constrain them as narrowly and briefly as possible. Much of the rest of Ashcroft's December 6 statement acknowledged this -- but the implicit impugning of his critics' patriotism unfortunately weakened the force of the rest of his sentiments, and strengthened his political adversaries' arguments rather than drawing their sting.

 
[Eugene Volokh, 8:36 AM]
THE TROUBLE WITH CIVILIAN DETENTION: A very thoughtful Washington Post article points out what an earlier blog post here suggested: One reason why the government may want to hold Padilla and others through the military rather than the civil justice system is the obstacles to interrogation presented by the civil system:

The Justice Department makes no secret of why it has not charged Padilla or Hamdi, nor why they are kept from their lawyers. The Justice Department wants to wring from them every whisper of information that may bear on the war, a reasonable enough goal. To charge them would require in-court arraignment, which would publicly cement their legal rights -- not something conducive to productive interrogation. To grant them a lawyer would lead to a similar informational dead end.

The article goes on to conclude that this is a necessary cost that the government must pay --

Yet charges within a reasonable period and legal representation are what the Constitution guarantees every American citizen, bad, good or bomber. The Justice Department cannot credibly fight terrorism at the cost of basic constitutional rights. If Padilla and Hamdi may be held in isolation in the name of terrorism, with no opportunity to defend themselves, who else might be subject to similar treatment? If "enemy combatant" is an undefined criminal category invoked by government officials free of judicial scrutiny, who else might be so nominated?

-- and this too is a reasonable argument. What I liked about the op-ed is that it clearly acknowledged the costs and benefits on both sides.

     My guess is that ultimately the best (though imperfect) solution is to require the government to prove to a standard civilian court that a detainee is indeed an enemy combatant, and once that's proven, to allow the government to detain him just as it could detain any enemy combatant seized on a battlefield (even if the person was a U.S. citizen seized within the U.S.). Alternatively (or perhaps supplementally), we might conclude that (1) certain rights (for instance, the right to a prompt trial, and to the aid of a lawyer at trial and before trial) should be broadly retained, even in cases where the defendant is accused of being an enemy combatant, but (2) other rights -- the right not to be interrogated after the subject says "no" or "I want a lawyer," or the right not to be interrogated at all post-arraignment when a lawyer is present -- should have an exception carved out for people who are credibly accused of being enemy combatants. The balance that the court have struck in, say, Miranda or their interpretations of the Sixth Amendment might make sense in normal crime-fighting, but not necessarily in trying to stop an armed enemy from deploying weapons of mass destruction.

     But I may well be mistaken on all this; and much depends on just how such proposals would be implemented -- for instance, whether secret evidence would be admissible, how thoroughly the government would have to prove that the person is an enemy combatant (beyond a reasonable doubt? by a preponderance of the evidence? by clear and convincing evidence?), and so on.

 
[Eugene Volokh, 2:59 PM]
UPDATE: I've done some more looking, and have therefore substantially reworked the "Unsound statistical argument from Justice Breyer" post, which immediately follows this one.

 
[Eugene Volokh, 12:21 PM]
UNSOUND STATISTICAL ARGUMENT FROM JUSTICE BREYER: In his concurring opinion in today's Ring v. Arizona, Justice Breyer argues that juries, not judges, should decide whether to impose the death penalty. But much of his argument is a general recitation of arguments against the death penalty more broadly, and his penultimate paragraph reads:

Many communities may have accepted some or all of these claims, for they do not impose capital sentences. See A Broken System, App. B, Table 11A (more than two-thirds of American counties have never imposed the death penalty since [the death penalty was reaffirmed as constitutional in 1976] (2,064 out of 3,066), and only 3% of the Nation’s counties account for 50% of the Nation’s death sentences (92 out of 3,066)). Leaving questions of arbitrariness aside, this diversity argues strongly for procedures that will help assure that, in a particular case, the community indeed believes application of the death penalty is appropriate, not “cruel,” “unusual,” or otherwise unwarranted.

     But this statistical argument just doesn't work. Justice Breyer observes that (1) many counties don't impose the death penalty, and therefore concludes that (2) many communities have taken this view because they accept arguments against the death penalty -- but omits the possible explanation that (3) many of these counties might simply have very few murders.

     To begin with, many counties have much smaller populations than many others; there'd be very few murders in those counties for that reason alone. But beyond that, many places have much smaller per-capita homicide rates than many others (see table 6 in this report for some examples), so that's another reason that those places might impose the death penalty very rarely.

     In Wisconsin, for instance (not a death penalty state, but that doesn't matter for the purposes of this comparison), one county (Milwaukee) out of 72 (i.e., 1.4% of all counties) had 78% of all firearms homicides in the state in 1999; 52 counties (72%) had no firearms homicides at all. I'm trying right now to track down nationwide figures that cover all homicides and not just firearms homicides, but I think this example is probably fairly representative: Homicide is highly geographically concentrated. (Source: Third Annual Statistical Report of the Firearm Injury Reporting System of Wisconsin 1999, pp. 18-19 (published Feb. 2001)). Likewise, the indispensable research librarians here at UCLA pointed me to a federal report that reveals that

Based on reported [Supplemental Homicide Reports] data, no juveniles were murdered in 84% of the more than 3,000 U.S. counties in 1995. In 9% of U.S. counties, one juvenile was murdered. More than one-third of all murdered juveniles were killed in 10 counties. The major cities in these 10 counties (beginning with the city in the county with the most murdered juveniles) are Los Angeles, Chicago, New York, Detroit, Dallas, Houston, Phoenix, San Bernardino, Philadelphia, and St. Louis.

     In fact, a very rough calculation on my part suggests that the top 3% death-penalty imposing counties in the document that Justice Breyer himself cites contained a total of 143,738 homicides. I'm still try to get the data for total homicides from 1973 to 1995, but a query from the Centers for Disease Control mortality reports cite, coupled with the rough and oversimplifying assumption that homicides from 1973 to 1980 averaged roughly the same as in 1981, gives me a rough count of 526,782. Th s, the more accurate way of putting Breyer's point was that "The counties that account for 50% of the Nation's death sentences account for 27% [143,738/526,782] of the Nation's murders" -- a vastly less striking disparity than the 3% / 50% disparity.

     Curiously, the very table that Justice Breyer cites actually lists the county-by-county-differences in the death penalty verdicts as a fraction of all homicides, and those differences are indeed substantial -- ranging, among listed counties with more than 100 homicides, from 3.04/1000 to 128.44/1000. But rather than relying on the information that's most relevant to his thesis, Justice Breyer relies on the information that's least relevant.

     Now Justice Breyer's (and the Court's) bottom line may be generally right: Perhaps the constitutional right to trial by jury should properly be read to require that death penalty decisions be made basically by jurors rather than by judges. And maybe the diversity of opinion about the death penalty, which does exist (different communities do have different views on when, if ever, the death penalty should be imposed) and does correlate with geography, should be an argument for leaving the matter to the jury. It's just that Justice Breyer's numerical data simply doesn't support his claim.

     (Note also that many communities reject Justice Breyer's anti-death-penalty arguments, support the death penalty generally, but think it should apply only to only the most heinous of murders. This fact is consistent with Justice Breyer's bottom line about diversity of opinion -- but it's not reflected in his broader assertion that the diversity of opinion flows in large part from opposition to the death penalty as such.)

 
[Eugene Volokh, 11:29 AM]
AN ODD ARGUMENT ABOUT WHY WE SUPPOSEDLY AREN'T IN A WAR: I was planning to blog something about Matt Miller's strange argument this morning on NPR: We can't be in a War on Terrorism, he argues, because "war" can only refer to conflicts that require vast commitments of manpower that affect the lives of most people, a la World War II. Huh? What about the Mexican-American War? The Spanish-American War? "War" has never been defined to include only the conflicts that Miller describes.

     In any case, I was planning to go into more detail on this -- but Jonah Goldberg on The Corner beat me to it, with an excellent post.

UPDATE: Duncan Frissell sends along the URL for the Miller commentary, Don't Call it a War.

 
[Eugene Volokh, 9:16 AM]
"BACK OF THE BUS," AND ATTACK BY INNUENDO: Slate, which I usually much like, slips up badly with its culturebox headline "Conservatives tell Cornel West to go to the back of the bus". The story berates "four distinguished neoconservatives" for "boycotting a panel discussion marking the 100th birthday of the political philosopher Sidney Hook . . . because the organizers, looking to replace the philosopher Richard Rorty (he canceled), had the temerity to invite Cornel West." Such behavior, the story claims, shows that the conservatives "want to shut West out of the intellectual circle," and are thus "enforcing a rigid orthodoxy and unspoken agenda," similar to the way the academic left had done in the past.

     Now I don't know whether this criticism is ultimately on target substantively -- I don't know whether Cornel West really is the serious scholarly heavyweight that the article describes him to be, and I don't know whether the conservatives might have had some personal run-ins with West that might have led them to not want to be on the same panel with him.

     But I do know that the article gives no evidence that the conservatives' actions had anything to do with Cornel West's race, the innuendo powerfully conveyed by the statement that someone is telling a black academic "to go to the back of the bus." The headline -- which gets readers into the story, is sometimes the only thing that people who just skim the table of contents carry away about the story ("Wow, there are charges of racism being leveled at conservatives who are persecuting Cornel West"), and often provides the frame through which the story is used -- creates an unmistakable implication that Cornel West is being persecuted because of his race. The story doesn't support this accusation, perhaps because there's no evidence to support it, but the unfounded charge lingers.

     What a cheap shot. I suspect that it isn't the culturebox columnist's fault -- headlines are generally written by special headline writers, not the authors. But someone at Slate screwed up big-time.