[Eugene Volokh, 4:30 PM]
A NEW LAWPROF BLOG: Check out NinoMania, a thoughtful, substantive, and amusing blog by Prof. David Wagner of Regent University School of Law. Check out his piece today on the Priscilla Owen judicial confirmation battle.

 
[Eugene Volokh, 4:23 PM]
IRAQI NUCLEAR WEAPONS: From The Scotsman, thanks to InstaPundit. It's a very thorough piece, and worth reading in more detail, but here are a few excerpts:

IRAQ’S NUCLEAR PROGRAMME

“Saddam is doing everything he can do without special [nuclear] material, and [he is] betting on acquiring the material outside Iraq. There are places they can go and find it on sale. And when that happens, they’ll be able to surprise the world with a finished weapon” -- David Kay, leader of the International Atomic Energy Agency’s inspection missions to Iraq (Quoted in The Record (Bergen County, New Jersey), 4 August 2002).

Iraq now has all the elements of a workable nuclear weapon, except the fissile material needed to fuel it, according to defectors. With Iraq’s trade links now reopening, and 7,000 nuclear engineers employed, it is feared that this final stage will not take for long.

Before UN inspectors left Iraq, the following had been ascertained:-

• Iraq had developed a blueprint for a nuclear bomb. It is a sphere measuring 32 to 35 inches in diameter, with 32 detonators. It would weigh less than a tonne and would fit on a Scud missile.

• Iraq has already tested a nuclear bomb dummy, with a non-nuclear core

• Iraq was running 30 nuclear research and production facilities. It had laboratory-scale plutonium separation programme and was also working on a radiological weapon, which scatters nuclear material without an explosion

Sep 1990 After the invasion of Kuwait, Iraq launches a “dash for the bomb”, hoping to complete construction within a year.

Aug 1995 Saddam’s son-in-law, Lt General Hussain Kamil, defected to the US. He had been placed in charge of the WMD programme and provided substantial evidence.

Aug 1995 Faced with this, Iraq then admitted to starting its attempts at a fast-track nuclear programme, which involved diverting nuclear fuel from power stations to the weapons laboratories

May 1998 Iraq ordered six “lithotripter” machines, saying they would be used to treat kidney stones. Each machine contains a high-precision electronic switch which triggers atomic bombs. It ordered six extra switches.

May 2000 The IAEA (International Atomic Energy Agency, which also carried out inspections on Iraq until Dec 1998) discovered and destroyed an Iraqi nuclear centrifuge which had been stored in Jordan.

Sep 2000 Saddam publicly calls for his “nuclear mujahedin” to “defeat the enemy.”

Dec 2001 A former Iraqi nuclear scientist, Adnan Ihsan Saeed al-Haideri, who has defected to the US, gives an interview to the New York Times from a safe destination in Bangkok (An interview with Mr Saeed was arranged by the Iraqi National Congress, an exiled opposition group to Saddam, whom had helped him escape. It appeared on p1 of the New York Times on 20 December 2001, entitled: “A nation challenged: Secret sites.”). His evidence is described as “plausible” by Richard Butler, an Australian former head of UN Iraq inspections. Mr Saeed said that:-

• Iraq has reactivated 300 secret weapons laboratories since the withdrawal of UN weapons inspectors

• Nuclear production and storage facilities are being hidden to the rear of government companies and private villas in residential areas.
• Weapons are being stored underground in what are made to look like water wells, lined with lead-filled concrete.

• Several empty facilities have been prepared, so projects can be on the move and withstand the bombing of one facility.

• Material from Leycochem, a German construction company, had arrived for under UN-approved schemes, but then redirected to nuclear development.

Feb 2002 George Tenet, CIA director, tells US Congress that Saddam “never abandoned his nuclear weapons programme. Iraq retains a significant number of nuclear scientists, program documentation and probably some dual-use manufacturing.”

Mar 2002 August Hanning, head of Germany’s Federal Intelligence Services, tells the New Yorker magazine that “It is our estimate that Iraq will have an atomic bomb within three years.” (Germany has been particularly assiduous in tracking Saddam, as he is known to have used German and UK companies when trying to build a nuclear bomb before the Gulf War. Mr Hanning was quoted in the New Yorker, 25 March 2002. “The great terror,” page 52.)

July 2002 Khidir Hamza, a defecting Iraqi nuclear science director, gives extensive evidence to US Congress (A full transcript of his Capitol Hill Hearing Testimony, to the Senate Foreign Relations Committee, is available on Federal Document Clearing House, dated July 31 2002.). It includes:-

• “With the workable design and most of the needed components for a nuclear weapon already tested,” he said, “Iraq is in the final stages of its programme to enrich enough uranium for the final component needed in the nuclear core.”

• German intelligence, with whom he has been in contact, believes Iraq now has “ten tonnes of uranium and one tonne of low-level uranium” – enough to make three bombs by 2005.

• “The Iraqi economy is basically on a war footing,” he concluded. “If Saddam manages to break into the nuclear club, he will become the undisputed leader of the Arabs.”

July 2002 Saddam tells Iraqi state television that allegations of an Iraqi weapons programme are “almost a joke.”

 
[Eugene Volokh, 4:19 PM]
"HOW CABLE MUSIC CHANNEL VH1 TURNED BOOING OF SENATOR HILLARY CLINTON INTO CHEERING": I somehow hadn't heard this story when it first came out, but it seems worth mentioning:

Senator Clinton was booed when she walked on stage last October at a rock concert in Madison Square Garden to benefit 9/11 victims. It was shown live by VH1 but, as ABC's John Stossel illustrated in a July 20/20 special on media distortions, when the Viacom-owned cable channel replayed it sound technicians replaced the booing with cheering and applause. And that version is the permanent record VH1 put onto its DVD of the event.

I suppose one shouldn't expect great history from VH1, but isn't there still some expectation of accuracy when someone distributes what purports to be a DVD of an actual concert? Or has the whole music business become Milli-Vanilli-ified? (Thanks to Todd Seavey, Dylan Keeler, and for passing this along.)

 
[Eugene Volokh, 4:10 PM]
MORE SERIOUS ERRORS IN HISTORY? John Rosenberg reports on a hot controversy about "the famous Denmark Vesey slave [revolt] conspiracy in Charleston in 1822" -- that, it now appears, might never have happened, even though historians have accepted its existence as settled fact. There are no allegations, to my knowledge, of deliberate falsification, but it does seem (or so some argue) that there might have been lots of egregious sloppiness, politicized thinking, and herd mentality.

 
[Eugene Volokh, 11:46 AM]
A BIT MORE ON MASON AND HANANIA: Just thought I'd mention this, for the sake of completeness: Raoul Felder, Jackie Mason's frequent coauthor, writes that Mason asked that Hanania be removed as his opening act because of the content of Hanania's material, not because of Hanania's ethnicity. "The decision was made by Zanies [the club] to move Mr. Hanania to another date (actually a better date since it involved a weekend). Zanies' action was approved by Jackie. There is no question Jackie approved Mr. Hanania being rescheduled and he did so for good reason."

     If this account is correct, then Mason's actions were of course not racist, precisely because they focused on Hanania's material and not his ethnicity. Note, however, that the first public account, to which I first reacted, had Mason's manager focusing precisely on Hanania's ethnicity, and not at all mentioning his material: "'It's not exactly like he's just an Arab-American. This guy's a Palestinian,' said Jyll Rosenfeld, Mason's manager. 'Jackie does not feel comfortable having a Palestinian open for him.'" And then the next story quoted Mason as denying that he was at all involved in the decision to remove Hanania as an opening act: "They don't involve me in these types of decisions. I sit in my room and write jokes, that's all I do."

     So exactly what Mason did, and why he did it, seems to remain pretty mysterious. I stick by my original statement: "[I]f [the original] FoxNews.com press account" -- the one that quoted Mason's manager -- "is correct," then the actions were racist. Of course, if Mason played no role in the decision (account 2) or if Mason did play a role but acted because of Hanania's material rather than his ethnicity (account 3), then Mason's actions were not racist.

 
[Eugene Volokh, 8:35 AM]
ROBERT PINSKY ON POETRY AND SEPTEMBER 11, in Slate. A very interesting essay, quoting some old poems and new.

 
[Eugene Volokh, 7:18 AM]
"HAMILTON WAS HIMSELF A VICTIM OF HANDGUN VIOLENCE": The Violence Policy Center, an organization that (among other things) promotes the banning of handguns, is conducting its 2002 Alexander Hamilton Second Amendment Student Writing Competition, which apparently seeks law review articles that would oppose the individual rights view of the Second Amendment. Its rationale for naming the competition after Hamilton is this:

The prize is named for Alexander Hamilton, one of the framers of the Constitution and a co-author of the Federalist Papers. Hamilton identified the differences between a well-regulated militia and a widely armed populace. He also served as the first Secretary of the Treasury, the cabinet agency which now has primary responsibility for enforcing federal gun control laws through the Bureau of Alcohol, Tobacco and Firearms (ATF). The VPC supports health and safety regulation of firearms as consumer products under the authority of the Department of the Treasury. Lastly, Hamilton was himself a victim of handgun violence. He was shot with a pistol by Aaron Burr in an 1804 duel.

     Wow, a victim of handgun violence. In some sense, I suppose, it's true -- he was killed in a violent act with a handgun. But surely if the NRA wanted to have a poster child for its "Guns don't kill people, people kill people" campaign, Hamilton would be top of the list! First, what Hamilton did was already illegal -- dueling was and is attempted murder (or, in Burr's case, actual murder). Can you imagine the scenario? "Mr. Burr, I would fight a duel with you, notwithstanding that dueling is a crime -- but because handguns are illegal, I cannot."

     Second, surely dueling (especially in the early 1800s) was one situation where if people didn't have guns, they'd use something else instead, and pretty much as effectively. I haven't seen the statistics, but my sense is that a wound from a sword in 1804 would have been about as deadly as a wound from a pistol. (Pistols may be more lethal than bladed weapons, then as well as today, because it's easier to run away from a bladed weapon -- but that factor, which might be relevant to modern gun control debates, is surely completely irrelevant to a duel.)

     Whatever one may say about Hamilton's death, it most assuredly provides zero support for gun control proposals. Blaming the gun -- as opposed to blaming Hamilton himself, blaming Burr, blaming social attitudes that tolerated or encouraged dueling, or whatever else -- in this case is almost self-parody. If the NRA were trying to mock the anti-gun forces by putting ridiculous words in their mouths, it would be hard for them to beat "Hamilton was himself a victim of handgun violence."

     Oh, and one more detail, just as a little historical factoid (thanks to David Hardy for pointing this out to me; see Thomas Fleming, Duel: Alexander Hamilton, Aaron Burr and the Future of America 314-323 (1991)): The handgun that killed Hamilton was provided to Burr by . . . Hamilton himself. (Both that pistol and the one that Hamilton used were owned by Hamilton's borther-in-law, John Barker Church, and Church lent them to Hamilton for the occasion.)

 
[Eugene Volokh, 6:44 PM]
APPEASEMENT RAISED TO THE ULTIMATE IMPERATIVE: "Making America safer means making America more popular," is the Table of Contents heading for Robert Wright's latest Slate piece, and it's a very good one-line summary. Wright points out (quite correctly, I think) that as technology improves, smaller and smaller groups of America-haters become able to do us grave harm (though I think the point ought not be overstated; it's no accident that Bin Laden's network was so heavily tied to the Taliban government). And his conclusion is that "The substance of [U.S.] policies should be subjected to a new kind of appraisal, one that explicitly accounts for the discontent and hatred the policies arouse." For instance, he reasons,

From the beginning of the Afghanistan campaign, Secretary of Defense Donald Rumsfeld dismissed reporters' questions about civilian casualties: "When one is engaged militarily ... there are going to be unintended loss of life. It has always been the case, it certainly will be the case in this instance." In other words: Why make a big deal about what has been a feature of all past American wars? Answer: Because something basic has changed. Back during World War II, when Rumsfeld came of age, enemy civilian casualties had essentially no bearing on America's national security. Now they increase the chances of American civilians dying in the future.

Likewise,

Though 9/11 made Americans aware that in some sense the attitude of the world's Muslims toward America matters, this fact has yet to enter foreign-policy debate very explicitly. This summer, in a big policy shift, President Bush demanded that Yasser Arafat step aside as Palestinian leader, even if he is elected to office by a majority of Palestinians. Bush made no counterbalancing demand of Israel, even though there is one demand—ending the construction of new settlements in the West Bank—that has the support of roughly every American who think about these things. Bush caught some flak on this count, but I'm not aware of a single pundit who put the criticism in its most elemental terms: The speech's conspicuous asymmetry had in some intangible but real sense reduced America's national security.

Now, let me give Wright his due: (1) Empirically, it is true that some things that we do can enrage some people and can lead them to try to attack us. (2) This concern has always been, and should remain, a part of sound policy planning. (3) At least some ways in which we can try to make people love us are generally unobjectionable.

     But I think Wright is missing an absolutely fundamental point: Trying to get people to love us -- especially the sorts of people who might become suicide bombers, or even cheerleaders for suicide bombers -- may actually make them love us less. The problem with appeasement isn't some abstraction about honor or sticking to one's guns. Appeasement is often in a very basic way counterproductive.

     Consider, for instance, our public statements about Palestinians and Israelis. Sure, they might well enrage some Arabs, though of course any endorsement of Israel's right to exist and any criticism of Arafat will enrage some (maybe many) Arabs. But if we were to make "avoid enraging Arabs with our statements, for fear that they'll bomb us" a prominent part of American policy, what would the consequence be? First, many Arabs would see that Arab terrorism, and the threat of more to come, has succeeded very well in changing our national policy. Behavior that gets rewarded gets repeated; this success will thus create an incentive to threaten more terrorism.

     Second, our changed policy will shift the baseline of what the "Arab street" expects: Now, anything that is a retreat from this "don't enrage Arabs" policy will enrage Arabs even more than before. "The Americans have said they want our love, because they're afraid of our hatred; to make us love them, they have claimed to change their policies; and now, slime that they are, they're going back on their promises, and risking our righteous wrath -- how dare they!" Once you change your policy to "appease X," X begins to see this appeasement as the new baseline against which your behavior is measured; the appeasement becomes taken for granted as X's due; anything that seems to violate this appeasement policy now becomes an extra ground for quarrel, because it's a violation of the new norm that X has come to expect.

     The same is true with regard to accidental killing of civilians. Now I think there are very good reasons to try to minimize such death, subject of course to some countervailing factors (such as protecting the lives of your own soldiers and allies).

     MEMES: But the trick, I think, is precisely to treat such minimization of accidental killing (assuming, of course, that the killing is indeed an inadvertent byproduct of an attack on what one sees as a military target) as acts of charity and decency, and not of obligation or fear. Wright talks a lot in his article about the need to spread the right "memes" (ideas that then get passed on from person to person) but misses this basic meme-related point. If we spread the idea "We promise to inflict virtually no damage on civilians," then the very spread of this idea will lead those who might hate us to judge us under a more demanding standard than if we spread the idea "This is war, and civilians will unfortunately accidentally die, especially when enemy soldiers hide among civilians, though out of kindness, we'll try to some extent to minimize this." This is true if the idea we spread is "We promise to inflict virtually no damage on civilians because we feel that this is morally required" -- then, when accidents do happen, or military necessity requires more aggressive action, our own hasty promise will have condemned us as moral monsters. And it's true if the idea we spread is "We promise to inflict virtually no damage on civilians because we realize that injury to civilians will make us hated" -- then, when damage does get inflicted, those who hate us will feel even more justification, because it looks like we're trifling with their anger (an anger that we ourselves acknowledged ought to make us tremble).

     EVOLUTION: Finally, I think that Wright, who has written a good deal about evolution, is missing a basic evolutionary analogy. He talks about how "the attitude of the world's Muslims toward America matters," and that this should influence what we do with regard to the Israeli-Palestinian conflict, but why doesn't he ask about "the attitude of the world's Jews"? Why doesn't he worry that alienating some Jews, who might hate us for condemning what they see as their rightful attempts to settle Judea and Samaria, will lead them to commit terrorist acts against us?

     Well, it's because Jews these days don't do such things. Too bad for them, then; since we're not afraid of them, we don't have to worry as much about their views. More broadly, too bad under Wright's scheme for all those who are generally less violent; we won't much adjust our policies to take their desires into account. But good for those who are more violent.

     So the brutes end up having a competitive advantage over the nice guys (or, to be precise, more of one than they had before). Either the nice guys will turn brutish, or the nice guys will be overrun by the brutes, and it is the brutes, not the nice guys, who will reproduce their brutal culture of terrorist threat. Evolution will help the fittest survive -- except in the policy structure that Wright recommends, the fittest (the ones whose interests we'll treat with the most concern) are the ones who are the most likely spawning grounds of terrorists.

     What then, should be done, given the risk that small groups could kill millions of Americans? I don't know the answer to that. But I am pretty sure that while technology may have magnified the power of small groups (for good and for ill), it hasn't repealed basic laws of human nature: Behavior that is rewarded, as I mentioned, gets repeated. The violent appeased come to demand more and more of the appeasers, and come to have more and more contempt for the appeasers. And to the extent that willingness to murder becomes an effective weapon in deterring us, the result will be more groups that choose to use that weapon against us.

 
[Eugene Volokh, 2:00 PM]
COLUMBIA LAW SCHOOL ON THE CONSTITUTION AFTER 9/11: Columbia University in New York is putting together quite a few events commemorating 9/11, under the rubric of "Columbia Remembers". One of those events, put on by the Columbia Law School, is billed as follows:

THE CONSTITUTION ONE YEAR AFTER 9-11
Friday, September 13, 2002
Columbia Law School
435 W. 116th Street (at Amsterdam Avenue)

This conference augments other events that will commemorate the brutal attacks on September 11, 2001. Moments of silence and other activities to honor and mourn the dead will help keep our nation strong. We also must also educate ourselves about the importance of the constitution and opposition to those who threaten the rule of law. This forum will be a thoughtful examination and discussion of actions taken by the U.S. government in the past year.

9:30 Welcome Remarks: Ellen Chapnick, Dean of Columbia's Center for Public Interest Law
David Leebron, Dean of Columbia Law School

9:45 Keynote Address: Robert Hirshon, President of the American Bar Association (2001-2002)

10:45 The Constitution and National Security: A False Dichotomy
Professor Kendall Thomas, Columbia Law School, Moderator
Eric Foner, Dewitt Clinton Professor of History, Columbia University
Mary Jo White, U.S. Attorney for the Southern District of NY (1993-2002); Debevoise & Plimpton
Gregory T. Nojeim, Associate Director of the ACLU's Washington office (invited)

1:00 Lunch on Your Own

2:00 The Constitution in Context
Professor Eben Moglen, Columbia Law School, Moderator and Speaker
Emily Habiby Browne, Arab American Family Support Center
Hany Khalil, Racial Justice 9-11: People of Color Against the War National Network
Sin Yen Ling, Asian American Legal Defense and Education Fund

4:00 The Litigation and the Legislation
Professor Katherine Franke, Moderator
Kit Gage, First Amendment Foundation and National Coalition to Protect Political Freedom
Michael Ratner, Center for Constitutional Rights
Michael Tigar, Professor and Edwin A. Mooers Scholar, American University, Washington College of Law; lead counsel for Lynn Stewart
Kate Martin, Center for National Security Studies (invited)

6:00 Reception

Presented by the Center for Public Interest Law, Columbia Law School and Members of the Law School Faculty
Endorsed by the Human Rights Institute, Columbia Law School; The Center for the Study of Human Rights; the Columbia Law School chapters of the ACLU, the American Constitutional Society and the National Lawyers Guild; and Columbia Law School's Civil Rights Law Society.

Now I surely agree that it's important to think about the Constitution a year after 9/11, to be wary of actions that "threaten the rule of law," and to "thoughtful[ly] examin[e] and discuss[] . . . actions taken by the U.S. government in the past year." But of course the Constitution, after 9/11 and before, has a dual role: Its role is both to constrain the government in order to protect our liberties and to empower the government to protect our liberties. In Madison's words, "Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. . . . Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government." Energetic government is necessary to protect liberty, though at the same time its energy sometimes needs to be restrained in order to protect liberty. That is the fundamental problem of constitution-making.

     Unfortunately, the introductory paragraph of the program seems to focus on only half this analysis -- only on the need to constrain the government, and not the need to make sure that it has the power that it needs to face the very serious security problems that we now face. Now perhaps this was just a flaw in drafting what is necessarily a short paragraph, and perhaps the rest of the conference provides more of a balanced picture; I can't tell for sure without knowing more about the panelists. Do some readers know more about this than I do? Are there participants on each panel who will focus closely on the need to make sure that the government has the power it needs, as well as on the need to restrain the government in some measure?

 
[Eugene Volokh, 1:43 PM]
TIMES (LONDON) EDITORIAL ON THE NEED FOR BRITAIN TO HELP IN A MILITARY CAMPAIGN AGAINST IRAQ (I assume from its tone and context that this is indeed a Times editorial; please let me know if I'm mistaken; thanks to Randall Parker for forwarding this). Here are some key excerpts:

The information collected on our foreign pages today confirms three essential truths about Iraq and its dictator. They are that no reasonable person doubts that Saddam is actively pursuing weapons of mass destruction, no neutral observer would contest that his motives for that quest are either to blackmail his neighbours or sponsor attacks on others, and no rational figure could believe that he will abandon this effort of his own volition. Since UN inspectors left Iraq in December 1998, the sole constraints on Saddam’s ambitions have been technical. . . .

The discussion which might be taking place inside Downing Street therefore is surely not that between “Yes” or “No” camps. It is instead being contested, if at all, between “Yes, plus” (political support and armed assistance) and “Yes, minus” (broad declarations of political support for what the President is seeking to achieve but with no military backing). . . .

[T]he “Yes, minus” strategy . . . would be that Saddam has to be tackled, but by someone else, thank you. The dubious ethical and political nature of such a “stand” would not, and should not, appeal to the Prime Minister. . . .There are, despite what some may suggest, no easy, soft and popular options available that can really deal with Iraq and its weapons of mass destruction.

 
[Eugene Volokh, 1:23 PM]
"DEBT TO SOCIETY": A reader writes, responding to my assertion that criminal history records (including old ones) should be freely available:

A side of this that might be considered is, once a person's debt to society is paid, that person gets a clean page to start living with anew (and many times with restrictions, gun ownership for example). Having one's past record made "that" public, on the internet, in a sense makes that person's sentence life-long; he will "keep paying" for his crime, even though he satisfied what society levied on him initially. Do we have the right to, in effect, hound and mark a man forever?

Leaving such records on paper in filing cabinets would seem to remedy to a good part what I describe above. If the information is needed, it can be had.

This, it seems to me, helps illustrate the danger of thinking through metaphors. First, let's start with "paying your debt to society." Say John rapes Mary. Whatever our reasons for imprisoning him -- retribution, incapacitation, deterrence aimed specifically at him, deterrence of others, or what have you -- they have very little to do with our reasons why people should pay debts. If you lend me $10,000, and then I pay off the debt, then you are in the same position you were (setting aside questions related to interest and the like) before you lent me the money. We really are even. But when the rapist serves his time, no-one was in the same position that they would have been but for the crime -- not Mary, not society, no-one.

     Second, consider "hound and mark a man forever." No-one is hounding anyone. The government is giving the public more information about John's proven misconduct. Particular people (not "society," but particular people) who are trying to protect themselves and their loved ones from possible future harm (from murder and rape on down) may then consider this information as part of their choice about whom to deal with and whom not to deal with. The real question is "Do we [as individuals] have the right to suspect a man forever?," and "Do we [as lawmakers] have the right to give people the information which they can use to suspect a man forever?" The answer, I think, is a resounding "yes"; a man may have served his sentence, but this can't erase the fact that he did something very bad once, and that he's therefore more likely than the average person to do something similarly bad later.

     Third, consider "a clean page to start living with anew." Who can be against giving someone a clean page? After all, the worst that the person can do with a clean page is get it dirty; and, hey, pages are cheap. Unfortunately, criminals do much worse than just dirty pages -- they can ruin people's lives. The question isn't "[should the] person get[] a clean page to start living with anew" (the metaphor), but rather "should the person have a right to keep people ignorant of his past misconduct, and thus have an extra opportunity to hurt them because they're not aware of his past misconduct" (the reality).

     Now of course some people who committed crimes straighten themselves out and never commit another crime. That's why if we learn that someone shoplifted 20 years ago, or even killed someone when driving drunk 20 years ago, most of us as individuals will probably not hold this much against him (though as to the latter person, we might still not be willing to hire him as a driver for our children). But if we learn that someone raped someone 5 years ago, and just got out of prison, we might be properly cautious -- yes, maybe he's reformed, but maybe he hasn't, and we don't want to put ourselves and our loved ones at risk in reliance on his supposed rehabilitation.

     It seems to me that the morally proper answer is to give people maximum knowledge about others' crimes, and then let each potential future Mary choose for herself whether she wants to "give John a second chance" -- another metaphor, which hides the fact that this chance may be a chance to act properly or to rape again. It is not proper for the government to keep the innocent ignorant in order to help the guilty.

 
[Eugene Volokh, 12:58 PM]
MORE ON PUBLIC RECORDS AND TAXES: My colleague Steve Bank writes the following:

In your current commentary on the NYT article about public records posted on the internet, you mention the historical privacy of income tax returns v. property tax returns. During the Civil War and Reconstruction (our country's first experience with an income tax), income tax returns were actually made public. In fact, in an analogous situation to the modern day episode in Cincinnati, the Bureau of Internal Revenue authorized tax collectors to publish the data from individual income tax returns in the local newspapers in the hopes of inducing neighbors to rat out tax evaders. There was such outrage over this and other tactics, that an income tax lay dormant again until 1894.

     As I describe in a recent article (Entity Theory as Myth in the Origins of the Corporate Income Tax, 43 William & Mary Law Review 447 (2001)), one of the motivations for the development of a separate corporate income tax in the Revenue Act of 1894 was its ability to serve as a less intrusive "stoppage-at-the-source" method of collecting the individual income tax (which worked fine in an era in which virtually all profits were distributed as dividends and where dividends were then made exempt from the individual income tax). In the same Act, Congress barred the publication or disclosure of information obtained from returns. Of course, the Act itself was never implemented because of Pollock [the Supreme Court decision that held the income tax unconstitutional, and that led to the enactment of the Sixteenth Amendment, which allowed the income tax], but the principle remained.

 
[Eugene Volokh, 10:22 AM]
HOW PUBLIC SHOULD PUBLIC RECORDS BE? A fascinating question, well-described in New York Times story this morning:

Four years ago, Mr. Cissell[, the clerk of courts for Hamilton County, whose seat is Cincinnati,] decided that it was time to move the county's court records onto the Web. The documents were already public. They were already electronic. Where else to put public electronic documents but on the Internet? . . .

Mr. Cissell's three-person technology staff put together the Web site at www.courtclerk.org. State tax liens, arrest warrants, bond postings -- all became searchable and accessible on the Internet.

"Everything we get is scanned and available," said Mr. Cissell, a former United States attorney. "It was very easy to open the door to the public." . . .

Divorce lawyers say clients are furious that neighbors are combing through the details of their cases (and are even brazen enough to discuss them with them). A teenager was confronted by his father about a speeding ticket. A man complained to Mr. Cissell's office because his friends discovered his history of domestic violence.

"We didn't realize we were walking into a privacy hornet's nest until after we were under way," said Mr. Cissell, who has received e-mail from people threatening to vote against him in the next election. The legal systems capture the grimier aspects of American life, ones that many people prefer to keep hidden.

As a result, Cincinnati finds itself at an uncomfortable frontier: the city is being asked to redraw the line between private and public.

Legislators are proposing state bills to keep Social Security numbers and other financial data private. Hamilton County judges have already issued "not to be published on the Internet" orders to shield financial and medical records. Many people are pressing for the removal of traffic-court and family-court records, which they say contain the most potentially damaging information. . . .

Of course, such records are ostensibly public and have long been available for perusal at courthouses and other offices. But most documents have been protected from public scrutiny by a legal concept known as "practical obscurity" -- the barriers of time and effort that make it difficult to pull together information. . . .
[Now, o]rdinary individuals have found that they can delve into records that that were long the domain of lawyers, private investigators and credit companies, and use that information to size up one another. . . .

There's a good deal more there -- much worth a read. I really do think this is a very tough question, without any really obvious answers.

     I firmly believe that, under the First Amendment, people should be free to reveal accurate information about others (at least unless they've promised not to); but to what extent the government should publicize such information is quite a different issue. I'm pretty certain that criminal history records (including old ones) should be freely available; I'm pretty certain that medical records of patients in government-run hospitals shouldn't be; but in between those extremes, it's really unclear.

     Even when you talk about tax records, our actual practice is very different: Property tax records have historically been public records, while income tax records have been kept quite secret. There are plausible explanations for this distinction (though I suspect the actual reasons are probably more historical than logical), but the important point is that it's hard to articulate a clear, general rule. Or at least I haven't yet seen a persuasive proposal along those lines.

 
[Eugene Volokh, 9:52 AM]
"IRAN'S HARDLINE MUSLIM LEADERSHIP IS STRUGGLING TO CRACK DOWN ON THE COUNTRY'S REBELLIOUS YOUTH,", from Helena Smith in the Guardian (of all places); thanks to Randall Parker for the pointer. One data point that is stunning if true: "Less than 1.4 % of the population ever bothers to attend Friday prayers, according to Iran's ministry of culture and guidance." And here's the closing paragraph:

"People the world over are drawn to success," says Ali Mehran, the editor of the English-language daily Iran News, who spent his formative years in San Francisco.

"The American system is very successful. If young Iranians don't want to go there, then they certainly want to emulate it. After all, wouldn't an 18-year-old rather see Michael Jackson dancing than a mullah wailing?"

 
[Eugene Volokh, 9:42 AM]
EXCELLENT PIECE BY DAVE KOPEL, on the latest inanity from our universities (link via InstaPundit):

The Wisconsin football team plays the West Virginia Mountaineers on Saturday. Ever since 1936, West Virginia athletic teams have been accompanied by a student who is chosen as the "Mountaineer." . . . The Mountaineer traditionally fires a musket before the game begins, and whenever West Virginia scores; the musket contains only powder, and no ammunition. It is no more dangerous than a starter's pistol.

On Tuesday, the peckish administration at Wisconsin not only forbade the Mountaineer to fire a gun; the Mountaineer was forbidden even to bring the musket into Camp Randall Stadium. Supposedly, the school was enforcing a policy against weapons in the stadium, although the athletic department explained that the gun would have been barred even if there were no general policy on weapons. . . .

"We don't need a gun going off in front of 80,000 people," insisted Wisconsin associate athletic director Jamie Pollard. Was Pollard afraid that the Wisconsin fans will panic when they see a gun fired?

The administrators shouldn't have worried so much, for the people of Wisconsin are not nearly as terrified of guns as is the Wisconsin administration. In 1998, the voters of Wisconsin added a right to arms to the state constitution by a vote of 1,161,942 to 412,508. The Wisconsin provision guarantees: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." . . .

Interestingly, while the University of Wisconsin is obsessed with "diversity," the school fails to field a rifle team, even though riflery is almost the only varsity collegiate sport in which men and women compete on equal terms.

Late Wednesday afternoon, the University of Wisconsin administration, apparently realizing that its hoplophobia was making the school into a national laughingstock among sports fans, relented, and announced that the Mountaineer can carry and fire his musket. . . .

Currently, the University of Wisconsin administration officially thinks of "diversity" only in terms of "American Indian, African-American, Latino/a, and Southeast Asian-American" plus "women in some fields; lesbian, gay, bisexual, and transgender persons; and disabled persons."

Perhaps the Mountaineer incident will help the administration begin to understand that "diversity" also includes people who do diverse things -- such as the approximately 50 percent of the American population which participates in America's culture of responsible firearms use and ownership.

 
[Eugene Volokh, 9:38 AM]
POWERFUL CRITICISM OF THE "CHICKEN HAWK" ARGUMENT, in a Washington Post op-ed by Eliot Cohen. There's a lot of great stuff there (thanks to InstaPundit for the pointer, by the way), but here's one particularly nice piece:

The second variant of "chicken hawk" is that veterans per se are uniquely qualified to make judgments on matters of war and peace. How does that work, though? Does a former airborne ranger get twice as loud a voice as an ICBM crew chief? Does the stateside finance corps lieutenant count more than the civilian who came under fire running an aid mission in Mogadishu? According to this view, to fill a senior policy position during a war one would of course prefer a West Point graduate who had led a regiment in combat, as opposed to a corporate lawyer turned politician with a few weeks' experience in a militia unit that did not fight. The former profile fits Jefferson Davis and the latter Abraham Lincoln. Not only did Davis turn against the Constitution he had sworn to uphold, he was a poor commander in chief, while Lincoln was the greatest of our war presidents. Being a veteran is no guarantee of strategic wisdom.

 
[Eugene Volokh, 7:25 AM]
SLATE ISSUES CORRECTION OF ITS HESTON / ALZHEIMER'S / GUNS CLAIM: On August 9, shortly after Charlton Heston announced that he apparently has Alzheimer's, Slate's Explainer asked "If he is diagnosed with full-blown Alzheimer's, will he have to give up his guns?," and answered "Yes." I looked into this, and reached a different result:

Based on my reading of the statute that Slate cites, and other sections referred to by the statute, an Alzheimer's patient will generally not be stripped of his right to own a gun unless he (1) is placed under a conservatorship, (2) communicates to a psychotherapist a serious threat of physical violence against an identifiable victim, or is (3) taken into custody by the government or assessed by the government on the grounds that the person is a threat to others or is gravely disabled, something that typically (to my knowledge) doesn't happen unless the person commits some act that is seen by government authorities as potentially dangerous. If Heston can avoid fitting under these categories -- which seems quite likely, at least unless it is found necessary to place him under conservatorship for financial or medical care reasons -- then he won't have to give up his guns.

I also e-mailed some people I know at Slate about this.

     Last Friday (the 30th), Slate inserted a correction at the start of the Heston Explainer column in its archives:

Correction: Aug. 30, 2002: On Aug. 9, Explainer wrote, "For [Charlton] Heston to lose his Second Amendment rights, a court would have to find that he has a grave illness or represents [a threat to others]." Explainer should have noted that for Heston to even be placed before the court, he would in almost every case first have to be involuntarily hospitalized by the state of California. The most likely outcome is that Heston will never enter the California mental health system at all.

If Heston has Alzheimer's and enters a state of severe dementia, it's likely that his family will go to California probate court and set up what is commonly called a "dementia conservatorship." This would place a Heston family member in charge of the actor's affairs. Under a dementia conservatorship, the court is not required by statute to rule on Heston's fitness to own firearms, nor is it required to report his condition to the California Department of Justice. More than likely, Heston's firearms would be placed under the care of the family member in charge of his affairs.

For pointing out and correcting the error, Explainer thanks Eugene Volokh of UCLA law school and Jim Preis of Mental Health Advocacy Service, a public interest law firm.

(On August 15, after one of the experts on whom Slate relied in the original Explainer publicly contradicted the Slate account, Slate had included in the Explainer an addendum acknowledging this contradiction; and on the same day, it also linked to my blog post criticizing their original piece.)

     Slate, I think, deserves credit for looking further into the story, and ultimately publishing the correction, as well as acknowledging earlier that the story might need correction. Unfortunately, Slate missed an opportunity to make the correction really effective: Since the correction was inserted only into the original Explainer, only readers who go back to the original column will see it. Presumably, most readers who read the original item won't go back to it later -- this is one reason that I didn't learn about the correction myself until yesterday.

     It seems to me that Slate should have displayed the correction as prominently as the original error was displayed, which would mean including it as an entry in the Slate Table of Contents (as well as updating the archived column, of course), so that regular Slate readers would have a decent chance of seeing it. At the same time, I'm happy that Slate did publish some sort of correction, and invested a good deal of effort in tracking down the straight dope, even after it had been apparently burnt by one of its original sources.

     In any case, I'm not knowledgeable enough about media correction practices to say much more than that, but I'd love to see what other bloggers have to say about this.

 
[Eugene Volokh, 3:55 PM]
A BIT MORE ON THE BUSHISM OF THE DAY: A reader writes, responding to an earlier post of mine:

I think youre being too hard [on] todays [Bushism of the Day]. You dont acknowledge, for example, that the first part of the quote in question makes no sense at all: If you don't have any ambitions, the minimum wage job isn't going to get you to where you want to get, for example. . . . [N]o context would make that sentence work. Obviously, anyone who lacks any ambition wouldnt care what kind of job they had, minimum wage or not. How does quoting the preceding sentence make it make much more sense?

Well, here's the "If you don't" sentence, which Slate quoted, together with the preceding one, which it didn't:

And they start interviewing children in 8th grade about their ambitions, and explaining reality. If you don't have any ambitions, the minimum wage job isn't going to get you to where you want to get, for example.

I understood the phrase "where you want to get" as referring not to one's professional ambitions in general, but to the much more concrete thing that most people, ambitious or not, want to get -- a good living. That's the "example" of the "reality" that's being explained. In context, it seems to me that Bush's message is pretty clear:

And they start interviewing children in 8th grade about their ambitions, and explaining reality. [This reality is, for example, that] if you don't have any ambitions, the minimum wage job [that the unambitious get stuck with] isn't going to get you [the standard of living that we all] want to get.

     It's true that, even with the preceding sentence, the "If you don't have any ambitions" sentence isn't terribly eloquent -- but it seems to me that its message is much clearer when the context is included. Again, let me provide for comparison the three sentences that Slate ted together with the preceding sentence that Slate omitted:

And they start interviewing children in 8th grade about their ambitions, and explaining reality. If you don't have any ambitions, the minimum wage job isn't going to get you to where you want to get, for example. In other words, what is your ambitions; and oh, by the way, if that is your ambition, here's what it's going to take to achieve it.

and then the three sentences as quoted in Slate, without the preceding sentence,

If you don't have any ambitions, the minimum-wage job isn't going to get you to where you want to get, for example. In other words, what is your ambitions? And oh, by the way, if that is your ambition, here's what it's going to take to achieve it.

Is the first quote (with context) clearer than the second (without context)? If so, then is it fair for Slate to provide just the second one as evidence of Bush's "Bushism"?

     And beyond that, why not make a habit of always providing the link to the entire speech, so that readers can decide for themselves?

 
[Eugene Volokh, 1:05 PM]
MAGIC BROOM: My friend Rob Morris pointed me to these amazon.com customer reviews of the Harry Potter Nimbus 2000 Broom. I make absolutely no warranties that the reviews' thesis is accurate . . . .

 
[Eugene Volokh, 1:03 PM]
WHEN QUOTING, EVEN WITHOUT QUOTES, ISN'T PLAGIARISM: Stuart Buck has an excellent point about the Norah Vincent controversy:

. . . Part of being a educated, literate, and cultured human being is the ability to use and recognize -- without citation -- phrases that are quoted from noteworthy sources. If one takes part in a conversation, or reads an essay, in which someone says that something is "like all Gaul, divided into three parts," there is a small thrill in being able to recognize the source of that quote without having a laborious and pretentious citation thrust in one's face. . . .

A culture of footnote-or-face-plagiarism-charges, Buck points out, can eliminate the possibility of this small thrill.

 
[Eugene Volokh, 12:31 PM]
SLATE VS. SLATE: Reader Mario Kladis points out that in today's Slate, Today's Papers writes:

The Journal goes high with the results of a new poll that found that 60 percent of Europeans would support an invasion of Iraq so long as it's authorized by the United Nations. Sixty-five percent of respondents in the U.S. said the same thing. . . . The Post also fronts the poll but emphasizes the survey's broader findings that Europeans and Americans actually agree on lots of foreign policy stuff. . . . (Here's a link to the poll itself. By the way, the papers generally, including today, don't include links to the polls they're writing about. They should.)

I agree entirely! And while we're at it, let's say that publications which ridicule people based on excerpts from their speeches (such as Slate's "Bushism of the Day" column) should also include links to the entire speeches they're writing about. What about it, Slate? Willing to follow your own advice?

 
[Eugene Volokh, 10:18 AM]
MORE OUT-OF-CONTEXT QUOTES OF THE DAY: Here's today Bushism of the Day from Slate:

"If you don't have any ambitions, the minimum-wage job isn't going to get you to where you want to get, for example. In other words, what is your ambitions? And oh, by the way, if that is your ambition, here's what it's going to take to achieve it." -- Speech to students in Little Rock, Ark., Aug. 29, 2002

Here's the material, together with the immediately preceding sentence, from an online transcript of the speech that Slate, as usual, did not link to (I had to track it down myself):

. . . And they start interviewing children in 8th grade about their ambitions, and explaining reality. If you don't have any ambitions, the minimum wage job isn't going to get you to where you want to get, for example. In other words, what is your ambitions; and oh, by the way, if that is your ambition, here's what it's going to take to achieve it.

Not the most elegant phrasing, I have to admit -- but it makes much more sense when you include the extra sentence that Slate omitted, because each of the three sentences that Slate quotes refers back to that preceding sentence:

1. "If you don't have any ambitions, the minimum wage job isn't going to get you to where you want to get, for example" gives an example of the "reality" that "they" (a business group mentioned earleir in the paragraph) are "explaining."



2. "In other words, what is your ambitions" is a restatement of the omitted "interviewing children . . . about their ambitions" sentence, not of the included "If you don't have any ambitions" sentence. (Yes, "what is your ambitions" is grammatically wrong, assuming that the transcript got this right, which is never quite certain; but in any event, most speakers occasionally make this sort of mistake.)



3. The "oh, by the way, if that is your ambition, here's what it's going to take to achieve it" likewise refers (via the "that") to the ambitions identified in the "interview[s]."

So again we see that the supposed "Bushism" is largely a creation of a journalist isolating a few sentences and ignoring the context. Look at the two quotes at the start of this post -- the Slate excerpt and the excerpt with the preceding sentence added. Wouldn't it have been just a bit more fair to have included that immediately preceding sentence?

     But more broadly, Slate is a leading Web magazine, and one that often tries to take advantage of the power of the Web in creative ways. It routinely links to original documents, which is much to its credit.

     Is it so much to ask that when a writer quotes an excerpt in order to mock the speaker, the writer should also include a link to the entire speech, so that readers can see the context for themselves? Link technology isn't exactly rocket science, folks. It really is pretty easy, once you set your mind to really giving readers the whole picture.

     (For more criticism of past Bushisms -- this post is now #7 in what has become an occasional series, click here and then follow the links to the other posts.)

 
[Eugene Volokh, 8:33 AM]
A BIT OF SUBTLETY FROM THE L.A. TIMES: This is from an article about the problems that Kathleen Kennedy Townsend, RFK's daughter, has been having in the Maryland gubernatorial race:

She is tethered to an eight-year incumbent, Parris Glendening, whose popularity has been sinking ever since he left his wife of 24 years, taking up with a former deputy chief of staff. In January, the 59-year-old governor married 35-year-old Jennifer Crawford; she gave birth to their daughter last month.

The reporter doubtless realized that there's one form of arithmetic that even the math-phobic know how to do . . . .

 
[Eugene Volokh, 7:10 AM]
NEW SHARDS POEM: I'm taking the liberty of passing along two short poems of my own; please do keep submitting yours, and please pass along the call for submissions to others. As you can tell from the topic of these, we are by no means limited to poems about September 11 as such; anything related to the events that followed that day, or may yet follow them, is of equal interest to us.

Two Poems on the Eve of Battle, by Eugene Volokh


[1.]

War is a young man’s profession,
The old men correctly say.
Father, hear this, my confession:
I thank God I’m not young today.

[2.]

In my youth, the world was quiet,
No-one called me off to war.
Who can blame me? Should it shame me?
Just got lucky, nothing more.
Write a poem now, stay at home now,
I am safely thirty-four.

[volokh at law.ucla.edu]

 
[Eugene Volokh, 5:12 PM]
BEHIND THE SCENES AT THE ONION, courtesy of How Appealing. (Hey, where's the appellate law in that? What's he doing treading on other bloggers' turf? Gotta complain to the Bloggers' Union . . . .)

 
[Eugene Volokh, 4:47 PM]
JUST A TITCH MORE ON MASON: Some readers pointed out that Jackie Mason might have had good reason not to want Hanania to open for him -- Hanania's schtick, they say, is "anti-Israeli [and] borderline anti-Semitic." And, hey, if Mason's manager had said "We think it's inappropriate to have an anti-Israeli, borderline anti-Semitic, comedian opening for Jackie," that would have been just fine.

     But that's not what the manager was quoted as saying -- the quote was that "This guy's a Palestinian . . . . Jackie does not feel comfortable having a Palestinian open for him." Racism is all about the reasons one does something; if one doesn't like what a comedian says, that's not racism -- if one doesn't like a comedian's ethnicity, that is.

     Here's a simple analogy: If a comedian had said "I don't want this comedian opening for me, because he's Jewish," we'd call that anti-Semitism, and rightly so. If he had said "I don't want this comedian opening for me, because his act is focused on his Jewishness, mine is focused on my ethnicity, too, and the result will be that people will think there's just too much of this ethnic stuff for one evening," we'd have another reaction. Likewise even if the comedian had said "I don't want this comedian opening for me, because he's pro-Israeli, and I strongly support the Palestinian cause." But "because he's Jewish" means something quite different, no? Likewise for "[because] this guy's a Palestinian."

     Of course, this all assumes that Mason did indeed take the view that his manager ascribed to him; if there was a mistake in some aspect of the account, then the analysis would be quite different.

 
[Eugene Volokh, 2:43 PM]
FORMATTING HELP: I was wondering whether any of our HTML-savvy readers might help me with a formatting problem I'm facing. The 110 Stories poem that I posted last week needs to be fairly wide. It was at first set up with a TD NOWRAP="NOWRAP" tag and a 12-point font, but that caused the entire page, with all the posts, to have extra-wide lines. I've now turned off the NOWRAP and shifted to a smaller font, but that has its own problems: Arbitrary line-wrapping generally isn't good in poems, and small fonts are hard to read. The problem is the double-column layout of the poem, but obviously that's a necessary part of the author's design.

     I would prefer if I could somehow move the left margin all the way to the left of the page, or close to it, for that blog post, but not for any of the others; unfortunately, since the blog is configured to have all the posts be one cell in a large table (the other cell being the links to other blogs on the left), I don't know how to relax the left margin for just part of that cell. Alternatively, I could deal with this particular post rolling off the screen a bit to the right, though that's not optimal, so long as this doesn't cause all the other posts in the blog to do the same. I do not want to move the poem off into a separate Web page of its own.

     If any readers could e-mail me some tips as to what I might do (I'm at volokh at law.ucla.edu), I'd be much obliged. Thanks!

UPDATE: Many thanks to reader Trevor Anderson for figuring out a solution to the problem.

 
[Eugene Volokh, 10:30 AM]
MARK KLEIMAN: My friend and colleague Mark A.R. Kleiman has finally given in and started his own blog, markarkleiman.blogspot.com. Mark is one of the nation's leading drug policy experts, and generally an all-around brilliant guy -- his views and his style often differ from mine, sometimes quite radically, but I always find his thoughts very much worth reading. In particular, check out his post on newspapers calling political murders "executions" and his "slightly queasy defense of capital punishment". Read it, bookmark it, return to it; it will be much worth your while.

TECHNICAL NOTE: Mark's blog is actually two blogs -- markarkleiman, which is his front page, and has brief, InstaPundit-like notes, and mkpolitics, which contains his longer posts; the former links to the latter. It's an interesting format, which seems to have both pluses and minuses, and I look forward to hearing his feedback on how this experiment is working. I primarily visit and read the markarkleiman page, but when I blog a link, I generally link directly to the mkpolitics page (which explains the links in the above paragraph).

 
[Eugene Volokh, 9:07 AM]
THANKS! We were delighted to see that Andrew Sullivan -- long one of our favorite bloggers, as the links on the left-hand side show -- has included us in a list of 15 blogs that he enjoys reading. (He said we are "now an institution," so we hope that's good, though of course there are good institutions and there are bad ones!) We very much appreciate the kind words.

 
[Eugene Volokh, 9:01 AM]
ANOTHER ODD "BUSHISM OF THE DAY": Slate's Bushism of the Day today is:

See, we love -- we love freedom. That's what they didn't understand. They hate things; we love things. They act out of hatred; we don't seek revenge, we seek justice out of love." -- Oklahoma City, Aug. 29, 2002

I don't get it -- the supposed theory behind Bushims of the Day is that Bush misspeaks in funny ways. Where's the misspeaking here?

     Now perhaps the problem (such an obvious problem that it doesn't require an explanation) is that Bush is disingenuously denying that we seek revenge (presumably out of hatred), but is rather mislabeling it as "seek[ing] justice out of love." Here, as is often the case, a bit of context might help. First, consider the entire paragraph from the speech, which again Slate for some reasons didn't link to:

I don't know what went through the minds of the enemy when they attacked us. They probably thought we were so materialistic, so selfish, so self-absorbed, so greedy, that all we'd do after September 11th is maybe file a lawsuit or two. They didn't understand the character of this nation. They didn't understand that if you try to take away our freedoms, we're going to respond. See, we love -- we love freedom. That's what they didn't understand. They hate things, we love things. They act out of hatred. We don't seek revenge, we seek justice out of love. (Applause.)

Second, consider the broader context of Left vs. Right debates about punishment, both in the capital punishment debates and elsewhere. The Left says that the desire to execute murderers, or put other violent criminals in prison for decades, is a desire for "revenge," and is thus inhumane, atavistic, or hate-filled. Some on the Right defend the term "revenge" and the concept of hating criminals, and suggest that revenge against and hatred of those who do evil is quite proper. But others prefer to reframe the debate, by pointing out that we punish criminals not because we hate them and want revenge against them, but because we love the victims -- and the potential future victims of similar criminals, as well as the rights that the criminals have violated -- and we want justice for those victims.

     Now maybe ultimately such word games aren't that helpful, though at least in the capital punishment debates they are probably inevitable; when foes of capital punishment use loaded terms such as "desire for revenge, born from hatred" it makes sense for the other side to suggest that the better characterization is "desire for justice, born from love." But in context -- something that the Bushisms of the Day column seems focused on ignoring -- there's nothing silly or obviously unsound about the claim.

     Next time, how about explaining why Bush's statements are supposedly "Bushisms," rather than just assuming that his folly is crystal clear for all to see?

     And how about including a link to the entire speech, or (if the speech isn't available on the Web) to a separate page that quotes the entire paragraph or two, rather than just the supposedly foolish sentence?

     (For criticism of an earlier Bushism of the Day, together with links that will eventually get you to criticisms of five other such columns, click here.)

 
[Eugene Volokh, 8:36 AM]
JACKIE MASON UPDATE: Jackie Mason is now denying that he objected to a Palestinian-American comedian opening for him, saying "It makes no difference to me if he was a Jew or a Palestinian. . . . They don't involve me in these types of decisions. I sit in my room and write jokes, that's all I do." (Columbus Dispatch, Aug. 30.)

     As I mentioned in my earlier blog post berating Mason for his alleged behavior, his behavior was of course wrong only "if this FoxNews.com press account is correct"; in that account, Mason's manager was quoted as saying "It's not exactly like he's just an Arab-American. This guy's a Palestinian . . . . Jackie does not feel comfortable having a Palestinian open for him." If Mason's manager was mistaken, and Mason's more recent statements are correct (and I have no idea who is correct on the facts here; it seems odd that the manager would just make this up, but misunderstandings and misquotes do happen), then of course Mason can't be faulted for what he didn't do.

 
[Eugene Volokh, 7:45 AM]
WHAT THE SECOND AMENDMENT SUPPOSEDLY REALLY MEANS: Garry Wills is a noted American historian, and (among many other things) a leading critic of the individual rights view of the Second Amendment. He wrote perhaps the most prominent short critique of that view, which was published in the New York Review of Books, Sept. 21, 1995, pp. 62-73; I assign it to my firearms regulation seminar in the Second Amendment unit.

     One difficulty with the N.Y. Review of Books piece is that it doesn't really explain what the Second Amendment is supposed to mean -- Wills doesn't seem to endorse the states' rights view, either. But I just looked at Wills' A Necessary Evil (1999), which is of course about much more than just the Second Amendment, and I found Wills' explanation (p. 121):

Before changes were made by Congress in [Madison's] draft, [the Amendment] read like this:

The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person (emphasis added).

Congress, when it rewrote the amendment, omitted the words "well armed and." Yet that was a clear signal of Madison's purpose. The Anti-federalists had feared that federal control of the militia's arms would means that arsenals might go unstocked, that arms not be kept in supply, or not be updated, or not be kept in repair. . . . Madison's guarantee of a well-armed militia to the states met this fear. . . .

     Congress, though it removed one comforting phrase from the Madison draft, seemed nonetheless to grasp what he was trying to accomplish . . . . What Madison and the Congress did was underline the independent action of the militias when they were not federalized, pledging that the new government would keep them equipped for that local purpose. The right to demand this service is the first and foremost meaning of "Second Amendment rights."

     So there we have it: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed" actually means that someone (Wills doesn't exactly explain who, though he's quite firm that it isn't individual people) has a right to demand that the federal government provide militias with guns. It's not an individual freedom from government suppression, or even a right of states to have arms that can protect them against the federal government (Wills rejects that argument, too). Rather, it's an affirmative entitlement to a form of government subsidy. An odd sort of reading of the phrase "the right of the people to keep and bear arms."

     As best I could tell (I didn't read the whole book, though I did look through the pages mentioned under "Second Amendment" in the index), Wills doesn't point us to anyone before, during, or after the Framing era who had ever imagined such an interesting reading of the language. He doesn't explain how this reading can be reconciled with the Militia Act of 1792, which required pretty much all white male citizens age 18 to 45 to provide their own weapons when mustered for militia service. He doesn't explain how it can be reconciled with the contemporaneous state constitutional provisions that secure a right of the people to bear arms, or with the similar right found in the English Bill of Rights, which to my knowledge no-one had ever seen as a governmental duty to provide people with arms.

     Quite remarkable.