[Eugene Volokh, 5:14 PM]
WILL THE SUPREME COURT AGREE TO HEAR THE NEW JERSEY SENATE RACE CASE? I answer with confidence, maybe -- and maybe not.:

"There's a pretty strong argument to say the New Jersey Supreme Court made up this rule, and that Bush vs. Gore says you can't do that," said UCLA law professor Eugene Volokh. "I would be surprised if they took it, but I was surprised by Bush vs. Gore."

(To be precise, I was especially surprised that they took Bush vs. Gore.) I confidently stand by my views on this! Those views, of course, are that my soothsaying powers are remarkably limited here. I suspect that most other lawprofs' powers are limited in this respect, too.

 
[Eugene Volokh, 4:46 PM]
THE WINONA PERSECUTION, so says Dahlia Lithwick in a characteristically interesting and readable Slate piece. The prosecution of Winona Ryder, Lithwick argues, is far out of proportion to what normally happens in shoplifting cases -- I haven't followed the case closely, but my sense is that Lithwick is probably right. Readers of this blog will know that I sometimes have my substantive differences with Lithwick, but her pieces are always very well-written, and generally quite incisive.

     One little quibble -- the second-to-last paragraph reads:

Americans have long argued that the famous enjoy an unfair double-standard, using their notoriety and wealth to walk away from serious drug, violence, and even murder charges with a rap on the knuckles and an autograph for the judge's wife. But it's equally true that the unscrupulous prosecution of someone famous can make a career, even when the charges are basically groundless. Think Ken Starr.

Uh, that would be wreck a career, if we're talking about Ken Starr. Just for a bit of perspective, here's something from an Aug. 6 New York Times article discussing Starr's appointment:

Few Democrats or Republicans who have worked with Kenneth W. Starr expressed any doubt today that he would be a fair and thoughtful prosecutor in the Whitewater case. But several voiced surprise at his selection because his new role is a decided departure in a distinguished career: his first time ever as a prosecutor at any level.

A respected Washington insider and several times a contender for a nomination to the Supreme Court under Republican Presidents, Mr. Starr carries a reputation as a soft-spoken, even-tempered professional whose work is marked by thoroughness.

The only cautionary notes sounded after the announcement by legal experts and former colleagues were that he was being asked to develop instincts almost instantly that some lawyers take years to refine and that his own political aspirations, though they never landed him in elected office, were bound to lend a partisan air to the investigation that was largely absent with his predecessor, Robert B. Fiske Jr. . . .

Consistently described as judicious, balanced and fair-minded, Mr. Starr won accolades today from those who have worked both with and against him. "If I was going to be a subject of an investigation, I would rather have him investigate me than almost anyone I can think of," said Arthur B. Spitzer, the legal director of the American Civil Liberty Union's Washington office. "I don't have the feeling that he is a fervid prosecutor in the sense that he thinks that anyone accused of something must be guilty." . . .

Though he has won a reputation as concertedly conservative, he wins the kind of praise rarely accorded those of pronounced ideology.

"There's a really small cast of people who have accumulated the kind of credentials he has," said Lincoln Caplan, author of "The 10th Justice," (Knopf, 1987) a book focusing on the office of Solicitor General. "Such people prove their reliability to the culture by transcending rank partisanship. He managed to be consistently conservative without being sharp-edged."

I didn't follow the Whitewater investigation closely enough to know whether and in what ways Starr may have erred (though by all accounts of those who know him, and whom I much respect, he was and is a deeply honorable man). But the one thing that Starr surely wasn't trying to do is make a career and a reputation that had already been made long before.

 
[Eugene Volokh, 4:22 PM]
OVER 25,000 "UNIQUE VISITOR" HITS this workweek, adding up the days from Monday to Friday -- which is to say a bit less than half of what InstaPundit gets in one day. Not sure exactly how this sort of aggregation makes sense, but that's what others seem to be using, so there you go.

 
[Eugene Volokh, 1:39 PM]
THE BAG OF FOUR PLAGUES: From JewishSource.com -- I assume it's legit:

BAG OF FOUR PLAGUES
Item Number: 76349

Bag of Four Plagues. O-o-o-o-h! Scary Passover fun (but not for Pharoah). Bag holds cute little locust, cow, frog and flea. Pull their cords and they buzz and wiggle.

Price: $ 15.00

This item is currently in stock.

Good thing the boils aren't included. Thanks to my friend Claire Hill for the pointer.

 
[Eugene Volokh, 1:19 PM]
A PERSPECTIVE ON THE SUPERIORITY OF THE U.N.: Rob Lyman asks:

Here's a question for Hagel, Wellstone, et al.:

Would the world be a safer, better place, if the United States turned over control of its ICBM's and nuclear missile subs to the United Nations? After all, wouldn't the Security Council only use them for the most moral and multilateral of purposes?

Very well put.

 
[Eugene Volokh, 1:10 PM]
WHAT HAPPENED TO "A FEW OF MY FAVORITE THINGS" WHEN IT GREW UP: Just listened for the first time last night to Lucinda Williams' wonderful "Sweet Old World," and this weird connection came to my head -- perverse, but I believe it's there. (I think "A Few of my Favorite Things" is actually very well written, though saccharine in the way that many kids' songs are.) Here are the Williams lyrics, though the sung version is much better than the lyrics alone can be:

See what you lost when you left this world, this sweet old world
See what you lost when you left this world, this sweet old world

The breath from your own lips, the touch of fingertips
A sweet and tender kiss
The sound of a midnight train, wearing someone's ring
Someone calling your name
Somebody so warm cradled in your arm
Didn't you think you were worth anything

See what you lost when you left this world, this sweet old world
See what you lost when you left this world, this sweet old world

Millions of us in love, promises made good
Your own flesh and blood
Looking for some truth, dancing with no shoes
The beat, the rhythm, the blues
The pounding of your heart's drum together with another one
Didn't you think anyone loved you

See what you lost when you left this world, this sweet old world
See what you lost when you left this world, this sweet old world
See what you lost when you left this world, this sweet old world
See what you lost when you left this world, this sweet old world

 
[Eugene Volokh, 1:00 PM]
CRYPTONOMICON TRIVIA: I assume that there are at least a couple of dozen of Cryptonomicon fans among the blog's readers. Here's a trivia question for you, with special extra points if you figured it out on your first read of the book: Who is the first other descendant of the World War II-era gang whom Randy meets, and what is his/her full name?

UPDATE: Todd Larason sent in the correct answer; Trent Goulding, my former student, did the same; likewise for a reader who prefers to be identified just as Mark, an engineering student.

ANSWER: The East Coast professor with whom Randy gets into an awful argument at that dinner to which Randy's girlfriend takes him -- and with whom, later, the by-then-ex-girlfriend gets romantically involved. His name is G.E.B. -- Gunter Enoch Bobby -- Kivistik. The last name should ring a bell . . . .

 
[Eugene Volokh, 11:53 AM]
REGRETS RE E-MAIL: The backlog of blog-related e-mail from Wednesday on is up to over 65 messages, so it may be a while before I can respond. I am very glad to get e-mail from readers, which often forms the basis of many blog posts. Unfortunately, especially when posts yield lots of messages (as the New Jersey material and the Falwell stuff did), it may take me several days to respond, and even then the responses might be very short, sorry to say. Just wanted to give people a heads-up about this; and thanks again for writing!

 
[Eugene Volokh, 11:24 AM]
DEFENDING ISRAEL'S RIGHT TO EXIST AS "HATE SPEECH": Thanks to Skip Oliva for passing along this National Post story. The pamplet that's described in the story is apparently this one here. Note to Canadian readers: Be careful about clicking on that link; while I'm not acquainted with the details of the Canadian law, and whether it applies to downloading, I would assume that if the government concludes that the newsletter is illegal to import, it may prosecute you for downloading it, too.

Canada Customs and Revenue Agency was accused of censorship last night after confiscating newsletters defending "Israel's moral right to exist" that were destined for the University of Toronto.

The agency said the goods were being detained to determine whether they constitute hate propaganda. . . .

Copies of the 10-page newsletter, In Moral Defense of Israel, were being delivered to the University of Toronto Objectivist Club so they could be handed out at a meeting on Sunday at which [Dr. Yaron Brook, president of the California-based Ayn Rand Institute, which published the newsletter] is speaking.

On Wednesday, the president of the club, Ray Girn, received a letter from the CCRA saying the newsletters were being held.

"The following goods have been detained for a determination of tariff classification as they may constitute obscenity or hate propaganda. You will be notified in writing of the decision," the letter said.

Mr. Girn said he did not know how the CCRA came to inspect the newsletters, which were believed to be in a sealed box possibly identifying it as literature from the Ayn Rand Institute, which promotes the philosophy of Ayn Rand. . . .

Normal procedure is that if a customs officer suspected something is obscene or constitutes hate literature, it is detained for examination by experts, [Caroline Jacques, a spokeswoman for CCRA] said.

CCRA's guidelines say, "Goods that constitute hate propaganda under the Criminal Code are those which advocate or promote genocide or promote hatred against an identifiable group distinguished by colour, race, religion or ethnic origin."

The guidelines state that, "full recognition should be given to freedom of expression" and goods that may constitute hate propaganda will not be classified, for example, if they express a religious opinion in good faith or are discussing a matter of public interest.

The newsletter covers a number of topics with such headlines as, Israel Has a Moral Right to Its Life, Allowing Israel to Destroy the PLO Helps Defend the U.S., and Radical Islam's Assault on Human Life.

The introduction states, "We hold that the state of Israel has a moral right to exist and defend itself against attack -- and that the United States should unequivocally support Israel."

It says those attacking Israel are "terrorist organizations, theocracies, dictatorships and would-be dictators" and says Yasser Arafat, the Palestinian chairman, "is responsible for the kidnapping and murder of Israeli schoolchildren, the hijacking of airliners and the car bombings and death-squad killings of thousands of Israeli, American, Lebanese and Palestinian civilians."

In the article Innocents in War? Onkar Ghate, who earned his Ph.D in philosophy from the University of Calgary, says civilian casualties in war are sometimes necessary and maintains that not all civilians in "enemy territory" are innocent.

"Many civilians in the Mideast, for example, hate us and actively support, materially and/or spiritually, those plotting our deaths. Can one seriously maintain, for instance, that the individuals in the Mideast who celebrated by dancing in the streets on September 11 are innocent?"

Another article, Radical Islam's Assault on Human Life, by Edwin Locke, is sub-titled Anti-Reason, Anti-Freedom Ideas in Islam Encourage Terrorist Fanaticism. It says that Muslim terrorist fanatics interpret parts of Islamic philosophy to justify their motives.

"Although there are other possible interpretations of Islam, the terrorist fanatics are consistent and uncompromising advocates of its doctrines," says Prof. Locke.

Remember this when people condemn American "absolutism" about free speech, and urge the supposedly more "nuanced" and "balanced" European and Canadian approach.

 
[Eugene Volokh, 11:20 AM]
THE VICTORY OF FEMINISM, AND THE DEFEAT OF "FEMINISM": Check out this excellent long piece on the troubles with modern feminism by Cathy Seipp (thanks to InstaPundit for the link).

     I am a feminist, which is to say someone who believes that men and women should generally be treated equally in virtually all legal and professional circumstances, and who is delighted that women's professional and educational opportunities today are vastly better than they were two generations ago. There are costs, I think, to women working more outside the home -- but I think that on balance there are far greater personal, moral, and social costs to women being effectively barred from most interesting and rewarding careers, which is what largely happened in the pre-feminist world.

     And I think that the feminist movement has been a tremendous political success, as measured by the simple criterion of how deeply it has transformed even that wing of American politics that used to fight it. The conservative movement of the past indeed opposed feminism, I'm sorry to say. But look how many leaders in today's conservative movement marry women who have achieved the professional success that women in the past had been denied, and that feminism has made possible. (Consider also how many of them raise their daughters to seek the same degree of professional success.) And at the risk of delving into sheer speculation, my guess is that many of those conservative leaders were attracted to their wives in large part because of the women's ambitions and achievements.

     But modern feminism, like many movements, went far beyond its sound and victorious core agenda, and ended up in a cloud-cuckooland. No wonder that so many women and men who are in most respects quite feminist -- who take for granted the key insights of the traditional feminist movement -- view it as an annoying or, worse yet, amusing irrelevancy.

 
[Eugene Volokh, 11:03 AM]
CRITICISM OF CRITICS OF FALWELL: Clayton Cramer, who's always worth reading, points out that some criticisms of Falwell themselves deserve criticism: He rightly condemns people casually throwing around the terms "Islamophobe" and "Muslim-basher," and he also points out that there's always a risk that Falwell is being misquoted here, or quoted out of context. (No -- the media quoting someone out of context! Say it isn't so!)

     I have in years past defended Falwell myself, though I was never a huge fan of his; I think he has often been maligned far more than he deserves. The whole "9/11 is God's punishment for homosexuality and the ACLU" ("I really believe that the pagans, and the abortionists, and the feminists, and the gays and lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People for the American Way -- all of them who have tried to secularize America -- I point the finger in their face and say, 'You helped this happen'") incident made me highly uninclined to defend him on anything, but I still agree that there are sound reasons to criticize him and unsound ones. I stand by the criticisms I made yesterday and today, but Clayton is surely right that there are also improper criticisms out there.

 
[Eugene Volokh, 10:56 AM]
THE ANCIENT AND THE MODERN: Reader Jim Davila, from St. Mary's College in Scotland, writes:

Well, I am a biblical scholar -- complete with tenured academic post -- and I think your analysis is convincing. An even better biblical example would be Joshua, who (on God's orders, of course) presided over the slaughter of the city of Jericho: men, women, children, and animals (Joshua 6:21). Of course it's a gross anachronism to apply our terminology to the ancient world, where life was, well, nasty, brutish, and short. They did their best with what they had, and both the Israelites and Muhammad get points for better morals than the cultures that surrounded them. Women had a considerably better deal in ancient Israel than in, say, Assyria, and Muhammad, forbade the common practice of female infanticide. But they still were pretty barbaric by our standards. Despite many people's pessimism about the West in the 21st century (not all of it unjustified), we really have learned some things -- and I mean about morals, not just technology.

 
[Eugene Volokh, 10:02 AM]
THERE'S NO RIGHT TO BE OFFICIALLY HONORED: The New York Times acknowledges that Amiri Baraka's anti-Semitic poem about Sept. 11 contained "appalling falsehood," but argues that

[A]ny notion that Mr. Baraka's offensiveness should be a reason to fire or silence him is in itself offensive. Mr. Baraka is not the state's spokesman. He is a poet and he was chosen, at least partly, because of the way he seeks to give voice to the minority community. Like Mr. Baraka, that community can often be angry. Allowing him the freedom to express that anger seems part of the point of the exercise.

I don't get it -- Mr. Baraka may not be the state's spokesman, but he is the state's poet laureate. The laurel is an honor that is bestowed on those whom the state deems particularly worthy. There's no right to this, and it's not "silenc[ing]" when the state chooses to withdraw the honor.

     As the Times points out, perhaps state officials should have realized that Baraka would put out this sort of thing; according to the Times, and according to what I've heard, it's par for the course. But New Jersey is entitled to correct its mistake, once conveying honor on Baraka is so vividly shown to be a mistake.

     It may well be that a matter of New Jersey state law, the poet laureate cannot be officially dimsissed (I haven't followed the controversy closely enough to know); and if that's so, then the governor shouldn't dismiss him, not because "fir[ing] or silenc[ing Baraka] is in itself offensive" as a matter of general principles, but because the governor must follow the law. Taking away an honor from those who have acted dishonorably is not offensive -- it's retaining them in a position of honor that is offensive.

 
[Eugene Volokh, 9:07 AM]
LILEKS IS EXCELLENT AS USUAL. This column is about Paul Wellstone, but my favorite excerpt doesn't focus on Wellstone as such:

As I’ve noted elsewhere, there are two parties nowadays: the US party, and the UN party. The former includes Republicans and Democrats who have an inordinate, romantic, and almost quaint attachment to the Constitution and the notion of national sovereignty. The latter regard nation-states as subsets of a global construct that values unanimous impotence over individual effort, and values procedure over results. The US party calls in mortar fire on the enemy positions. The UN party stands up, climbs over the lip of the trench, and recites Robert’s Rules of Order as it approaches the machine-gun positions. Yea, though I walk through the shadow of death I shall fear no evil, for evil is specifically prohibited under Article 4, subclause B.

 
[Eugene Volokh, 8:07 AM]
FALWELL: One reader writes (and this is the entirety of his message):

No, you're not a Biblical scholar. Maybe you could make the minimum effort of reading the Bible, though, before you make a fool of yourself. You don't have to be a 'Biblical scholar' to know that what you wrote was all wet.

I'm not sure I quite get the reader's argumentation strategy -- he says I'm wrong, says it again, but omits any, well, evidence or argument. Are people ever persuaded by this sort of thing? If you just tell people "You're wrong, wrong, wrong!," do they ever say "Wow, you've really talked me around -- I guess I was wrong, wrong, wrong!"? Maybe I've been missing something important about effective communication techniques . . . .

     Reader Benjamin Tucker, on the other hand, does provide a substantive argument:

Hey, admitting you are not a Biblical Scholar, doesn't excuse you from confusing God Almighty with Moses. God killed the first-born of Egypt and passed over the first-born of the enslaved Israelites. The Jews celebrate this tragedy as Passover. This is not to say Moses was not above picking up a blunt object and killing an Egyptian but, hey . . . the book of Exodus is an easy read and you should be better informed, even if Jerry Falwell is the target of your blunt object.

     Well, yes, I am aware -- and I'm sure most readers are, too -- that Moses didn't personally go out there to smite every first-born in Egypt. I quite intentionally used the phrase "involved with" the plagues for precisely that reason.

     And Moses was certainly involved with them. If we bring his behavior forward to today, and judge it by today's standards (which, as I understand it, is precisely Falwell's argument as to Muhammad), Moses would be considered both morally and legally responsible for the actions, and heavily so: He was, after all, the person delivering the extortionate threats, as well as generally being one of the lieutenants of the person or entity who was executing the threats. He may have been a subordinate in the whole operation, but subordinates are also responsible for what they participate in doing (certainly our view with regard to al Qaeda, for instance). If someone came to your political leaders and said "Do what I tell you to do, or my backer will spread devastating plagues, and kill vast numbers of your people," would you say the person was "set[ting] the example for love," or that he was "a violent man, a man of war"?

     Now of course one can argue -- as I explicitly acknowledged -- that what Moses did was participate in good violence, and good war, because it was God's will and God's doing. But, as I said, I take it that Muslims might say the same about Muhammad, no?

 
[Eugene Volokh, 1:46 PM]
AN ODD ARGUMENT FROM JERRY FALWELL: According to FoxNews,

The Rev. Jerry Falwell says "I think Muhammad was a terrorist" in a television interview to be broadcast Sunday.

The conservative Baptist minister says he has concluded from reading Muslim and non-Muslim writers that Islam's prophet "was a -- a violent man, a man of war."

"Jesus set the example for love, as did Moses. I think Muhammad set an opposite example," Falwell says in an interview on the CBS program 60 Minutes.

Hey, I'm no Biblical scholar, but wasn't Moses involved with that whole smiting of the first-born thing, plus of course a wide variety of biological warfare? And weren't there lots of other figures in the Old Testament -- figures who are generally viewed quite positively -- who were also "violent [men], . . . [men] of war"?

     Now one can surely argue that their violence and warmaking -- even including the killing of innocent civilians, and not just as collateral damage but as a tool for creating terror (cf. the smiting of the first-born) -- was acceptable, because it was God's will, or because there were special circumstances that made it acceptable. But I take it that Muslims would say the same about Muhammad, no?

     I have nothing against religious figures using religiously founded moral arguments, or even theological arguments, in debate about political issues. But this particular religious argument strikes me as highly unpersuasive; and I suspect that it will be unpersuasive to many deeply committed and theologically knowledgeable Christians as well as to secularists like me.

 
[Eugene Volokh, 10:47 AM]
"BY THE LEGISLATURE" ARGUMENT: Just heard from a reporter that the Republicans filed papers with the Supreme Court an hour ago making the very argument described below, and also making an argument based on the federal overseas ballot act (which I ought to learn more about, but as to which I know nothing right now).

     As I said before, I express no opinion on the merits of the case -- but I wonder whether it's really good as a political matter for the Republican Party to try to get the Supreme Court involved here again. I'm surely not an expert on that question, but my gut feeling is that this sort of litigation doesn't win hearts and minds, and even if it makes a difference in favor of the Republicans winning this seat (which is far from clear), it may hurt Republicans more broadly. But who knows for sure how the voters will view it? I certainly don't -- I don't even know for sure how the Justices will view it, and that's actually within my field of expertise.

UPDATE: Here's a New York Times story about this.

 
[Eugene Volokh, 9:26 AM]
MY RESPONSES TO PEOPLE'S E-MAIL WILL BE EVEN SLOWER THAN USUAL TODAY. I have a talk in San Diego this afternoon, and before then I have to prepare my overheads and teach my copyright class. May take a long time to respond to the many messages I've gotten about New Jersey, and my responses may be even sketchier than usual -- sorry about that . . . .

 
[Eugene Volokh, 9:20 AM]
ONE MORE TWIST ON THE FEDERAL CONSTITUTIONAL QUESTION: Another point raised on the constitutional law professors' discussion list is whether art. I, sec. 5 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members") leaves the Senate with the first and last word on the subject, and cuts the courts entirely out of the loop.

     This sort of argument -- which in legal parlance is labeled as a "political question" argument, on the theory that it leaves the issue as a question for the political branches, not the judicial branch -- has a long pedigree, and much to be said for it, but since the 1960s the federal courts have generally not accepted it. Still, expect this issue to be discussed if the case does make its way to federal court (and an e-mail from a reader suggests that some sort of federal action has already been filed).

 
[Eugene Volokh, 9:01 AM]
FEDERAL CONSTITUTIONAL OBJECTION TO THE NEW JERSEY SUPREME COURT DECISION? Some constitutional law professors on a discussion list that I run pointed out that there may be a federal constitutional objection to the New Jersey Supreme Court decision. Mind you, they don't necessarily like the argument (and I should also stress that the point has been made both by people who are to my knowledge Democrats and those who are to my knowledge Republicans); but as a legal matter, they think that it's plausible. Here it is:

     As best one can tell from the limited reasoning that the New Jersey Supreme Court supplied (as I mentioned, I hope it will provide a full opinion soon, but I'm not sure whether that is its plan), the court was not relying on any specific statutory authorization for allowing the substitution of a candidate, or even interpreting a vague statute as providing such authorization. Rather, the court held that its own equitable authority allowed it to provide for this substitution, even in the absence of a statute.

     Now in many areas of the law, courts are allowed to make up legal rules, even in the absence of statutes -- that's the nature of our common-law system. One can argue that courts shouldn't make up certain legal rules, or should, as a matter of policy, leave certain subjects to the legislature. But there's generally nothing unconstitutional about courts making up such rules.

     With regard to elections, though, art. I, sec. 4 of the U.S. Constitution says that "The Times, Places and Manner of holding Elections for Senators and Representatives" (this issue would be a "Manner" question), "shall be prescribed in each State by the Legislature thereof" -- not by the state courts, but by the state legislature. Therefore, one can argue, the election rules must be set forth by the legislature, possibly with interpretation by the courts (because most legislative enactments require some interpretation); they can't just be created by the state courts, even though the courts can create law in other areas.

     In fact, this is the view that the Supreme Court took 2 years ago in (no, no, anything but that!) Bush v. Palm Beach County Canvassing Bd., the first -- and unanimous -- decision in the Bush v. Gore litigation.

     In Bush v. Palm Beach County, the issue was whether a state court could properly consider the state constitution, as opposed to the work of the state legislature, in interpreting state statutes; the Supreme Court held that the state courts were quite constrained in this -- they could interpret the statutes in light of the state constitution, but they couldn't (in this one area, unusually consigned by the federal constitution to the state legislature) interpret the state constitution as trumping the legislative enactments:

As a general rule, this Court defers to a state court's interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, §1, cl. 2, of the United States Constitution. That provision reads:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .

Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said:

"[Art. II, §1, cl. 2] does not read that the people or the citizens shall appoint, but that 'each State shall'; and if the words 'in such manner as the legislature thereof may direct,' had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, §1, cl. 2, "circumscribe the legislative power." The opinion states, for example, that "[t]o the extent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no 'unreasonable or unnecessary' restraints on the right of suffrage" guaranteed by the state constitution. The opinion also states that "[b]ecause election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens' right to vote . . . ."

     After reviewing the opinion of the Florida Supreme Court, we find "that there is considerable uncertainty as to the precise grounds for the decision." . . . Specifically, we are unclear as to the extent to which the
Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Art. II, §1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U. S. C. §5 [the federal safe harbor provision, which was also involved in the ligitation]. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

     Now there's considerable controversy over whether the Court was right in concluding that the federal constitutional grant of power to "the Legislature" required the state courts to largely set aside the state Constitution; this controversy erupted again, of course (together with everything else), in the case that ate everything, Bush v. Gore itself, though it wasn't settled there. But given the Court's 9-0 decision in Bush v. Palm Beach County, a state court decision that relies pretty much entirely on the state court's judicial power, without any visible statutory authorization, seems even more likely to violate the "by the Legislature" clause (here of art. I, sec. 4 rather than art. II, sec. 1, which is applicable to presidential elections, but the principle the same).

     I am not endorsing this position as a matter of abstract constitutional principles, or even necessarily saying that the federal courts will ultimately buy it. I am also certainly not suggesting that the Republican candidate's campaign argue this to the federal courts (and I don't know whether they already have, or announced plans to, or announced plans not to). But as I mentioned, some law professors who are hardly Republican enthusiasts have pointed out this argument, and it strikes me as nontrivial; so I thought I'd pass it along to you.

 
[Eugene Volokh, 4:30 PM]
SO WHAT'S THE LAW NOW IN NEW JERSEY? OK, say that on October 31 a Socialist Party candidate for the State Senate drops out, and the Socialist Party wants to replace him with someone else. Maybe they're seeking a tactical advantage -- the attempt will get them some free publicity -- though I doubt that the advantage will generally be that great. Or maybe their current candidate eats tainted Halloween candy or dies or has a nervous breakdown, and they genuinely want to substitute someone else.

     Do they win or lose? My first reading of the New Jersey statutes (19:13-20) suggests that they should lose, because a substitution can be made only "In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election." But that's not true any more, because the New Jersey Supreme Court held that this statute "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election" (surely a wording error on the Court's part by the way -- no statute can preclude the possibility of a vacancy; they mean that it doesn't preclude the possibility of substitution).

     OK, so they win -- and thus they get an injunction mandating "The printing of the general election ballots with the substitution of the new candidate's name for that of [the old candidate]" and "A direction to defendant County Clerks that the substitution of the new candidate's name . . . be made on all ballots, whether absentee, military, provisional, emergency, voting machine, ballot card, or otherwise." Can that be right? It's October 31; the election is in 5 days; the absentee and military ballots have been mailed out; it will likely cost hundreds of thousands of dollars to implement the substitution. Surely that's not possible.

     Well, then, they lose for the obvious reason: They're the tiny Socialist party, and have no chance of winning -- why waste all this money or effort over nothing? (Note that the state might insist that the Socialists pay for the reprinting costs, so that may cut down the number of such claims; but then this will leave the difficult constitutional question whether the state would have to pay the bill if the party can't afford it, just as the state generally has to waive filing fees for poor political candidates.) But I highly doubt that this is the rule of law that the New Jersey Supreme Court ought to create, or will be seen as having created. Some discrimination in favor of major-party candidates may sometimes be constitutionally permissible, but I doubt it will be permissible here; and even if it is permissible, it seems hardly sound. What if the third-party candidate had a decent chance of winning? What if he had a small chance, but bigger than the Socialists? Or what if it was the Republican candidate, and not the Socialist one, that had dropped out? (See also Patrick Ruffini's take on this.)

     What about the other obvious reason? It's October 31, only 5 days before the election. But what if this had happened on October 10 or October 20? In elections, knowing the firm cut-off date is pretty important, in part because you want clear rules that guide judges, and diminish the risk that the decision will be a result of political bias. I suspect that most New Jersey election lawyers thought they knew it -- 51 days before the election. Now that's no longer the cut-off, but the New Jersey Supreme Court didn't produce any substitute cut-off. All it said is that "the central question" is whether "the dual interests of full voter choice and the orderly administration of an election can be effectuated if the relief requested by plaintiffs were to be granted," and in this case, for this candidate and this year and this day, it said the answer was "yes." What would the answer be on October 10, 20, or 31? We don't know.

     Now I suppose the decision could have come out in favor of allowing the substitution and still provided some guidance. I think allowing any substitution after 51 days before the election would be an odd interpretation of the statute, but not an utterly ridiculous one; one could argue, as some have, that the statute merely provides that certain things may be done if a vacancy "occurs not later than the 51st day before the election," and doesn't provide the exclusive mechanism for substitution. Unfortunately, the New Jersey Supreme Court hasn't set forth its reasoning, so it's hard to tell whether the reasoning is sound; but let's assume that it is.

     The court could have, if it felt entirely unbound by the statute, set forth a clear test. It could have, for instance, said that a substitution is permitted until the day that at least some ballots have been printed -- though this would apparently have led to the opposite result here, since ballots with Torricelli's name have already gone out to military absentees. Or it could have said that a substitution is permitted until the day that the regular absentee ballots have been mailed out (though apparently at least a few have been). Or I assume it could have come up with something else.

     But the Court didn't do that. The only thing remotely approaching a legal rule that comes out from this decision is that other courts must presumably likewise ask "the central question" whether "the dual interests of full voter choice and the orderly administration of an election can be effectuated if the relief requested by plaintiffs were to be granted." Is this a standard that we think judges can fairly apply in future election cases, cases which might be similarly politically laden? Or might the old 51-day bright-line rule, with all its flaws, have been better after all?

 
[Eugene Volokh, 3:58 PM]
THOSE ALARMING INDIANS: From remarks by Rep. Cynthia McKinney in the Congressional Record:

[T]here were some alarming things about the campaign to defeat me that I think my colleagues of both parties should look out for. I am not talking about the Republicans who crossed over to vote for my opponent, but the heavy involvement of Indians in the primary.

Part of McKinney's remarks alleges that the Indian government illegally funneled money into the campaign -- a matter I haven't looked into -- but part of it clearly focuses on the actions of Indian-Americans, who when I last checked were just as entitled to participate in American politics as blacks or Jews or anyone else. "[T]his irritated the Indians," McKinney says, "because the newspaper article I am inserting in the Record along with this statement shows that they admitted that they invested heavily in the effort to defeat me." The "Indians" mentioned in the article are apparently Indian-Americans, as the article repeatedly says.

     Has there been much coverage of this in the media? I didn't see any until InstaPundit remarked about it, though I confess that I haven't been keeping up on my reading in the last few days.

 
[Eugene Volokh, 3:28 PM]
NEW JERSEY SUPREME COURT REPORTEDLY UNANIMOUSLY ALLOWS LAUTENBERG TO SUBSTITUTE FOR TORRICELLI: Haven't read the decision yet, but here it is.

UPDATE: Not a lot of detailed explanation there, so it's hard to see whether the Court's reasoning was correct. I hope there'll be a more detailed opinion issued in due course; this sometimes happens when a court has to issue the bottom-line decision very quickly.

 
[Eugene Volokh, 1:52 PM]
GERRYMANDERING: Great interview on the subject with law professor Dan Polsby, my friend and erstwhile colleague at George Mason University. Dan is always a treat to listen to and to read.

 
[Eugene Volokh, 10:52 AM]
MORE ON RECUSAL: My friend Richard Painter, a law professor who's one of the top legal ethics experts in the country, says this about the recusal issue (see the next post for more details on the issue itself):

One certainly would not expect recusal if the Senator contribued to the Judge's political campaign. Such was the basis of the unfounded accusations against Justice Owen that were printed in the New York Times and other sources that did not bother to check their facts (or Texas case law). . . .

The question then is why recusal should be expected because the Judge made a campaign contribution to the Senator (whose name will not go on the ballot anyway). I think not. Unless New Jersey wants to prohibit judges from making any political contributions, it seems to me that New Jersey has to live with the appearance of conflict created by such contributions. . . .

It's good to know people who really know something about the subjects that one wants to talk about!

 
[Eugene Volokh, 10:41 AM]
RECUSAL: Some people (see, for instance, here) have suggested that one of the New Jersey Supreme Court Justices should recuse himself from the Senate race litigation because he had contributed to Torricelli's election campaign. I'm not a judicial ethics expert, but I don't think this is so -- the contribution merely shows that he supports Democrats, which is often quite obvious from a judge's preelection life. Unfortunately, in political litigation there's always the risk that the judges who lean Democrat in their private political preferences will vote with the Democrats, and that the judges who lean Republican will vote with the Republicans; but that can't be enough to constitute grounds for recusal.

     I asked around about this, and my colleague Dan Lowenstein -- who is one of the top election law experts in the country -- agreed, and allowed me to post his response. (Note that Dan is a moderate Democrat, but a very fair-minded person, and I would definitely trust his objectivity on these matters.) Here it is:

I don't think it is even a close case for recusal. First of all, Torricelli is not himself an interested party in the litigation. It is hard to see why having contributed to Torricelli would be more of a ground for recusal than having contributed to any other Democrat or Republican.

Secondly, even if Torricelli were an interested person, having contributed to his campaign does not establish the kind of conflict of interest that should require recusal. The contribution tends to show that the justice's political sympathies were with Torricelli and, by extension, that they are likely to be with the Democrats in the Senate election. But no one should presume that justices are without political sympathies in a Senate election. One hopes that justices can put themselves in a frame of mind in which those political sympathies have no influence on their decision. I am not particularly optimistic that such hopes will be realized in a case like this, but a justice's having made a contribution to Torricelli does not seem to me to be a very significant predictive factor in whether or not they will be realized.

Of course, if this justice or any other justice finds upon introspection that he will be unduly influenced by his political sympathies, he should recuse himself for that reason. Otherwise, the contribution to Torricelli falls far short of providing a ground for requiring recusal.

 
[Eugene Volokh, 9:43 AM]
ERROR! ERROR! ERROR! Several readers pointed out to me that I have "fallen into error," as we say in the law biz (i.e., screwed up) in the analysis of the New Jersey senatorial vacancy statute. My bottom line remains the same, partly for reasons described in this post; but the error was quite significant. Rather than going into details about the nature of the error (the problem related to my interpretation of the "unless such vacancy shall happen" clause, interacting with the second paragraph), I thought I'd repost a version that seems to me to be more correct -- and one that includes another statute that I've recently uncovered. But as I've said before, I may still be mistaken here -- this really is a job for a New Jersey election law expert, but unfortunately none of them seem to be blogging about it!

     So, on to the substance: WHAT IF TORRICELLI RESIGNS WITHIN 30 DAYS BEFORE THE ELECTION? Mickey Kaus argues that it's possible that "Torricelli steps down in late October and New Jersey's Democratic governor appoints a replacement and simply calls off the election," citing the following statute:

If a vacancy shall happen in the representation of this state in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within thirty days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this state shall deem it advisable to call a special election therefore, which he is authorized hereby to do.

The governor of this state may make a temporary appointment of a senator of the United States from this state whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the board of state canvassers can deliver to his successor a certificate of election.

Now I am not a New Jersey election law specialist, and the background law behind these statutes can get pretty complex; but as I read the statute, I don't see any authorization for the governor to "call off" a regularly scheduled election for Senator. Rather, it authorizes the governor to call a special election, which he might often have to do, and it authorizes the election of a new Senator in a general election in which the Senatorial seat would not otherwise have been filled: If, for instance, Torricelli's term expired right after the end of 2004 or 2006, and Torricelli resigned on October 31, 2002, then the governor could either call a special election, or let the next election happen in November 2003 ("the second succeeding general election" after October 31, 2002, the first being in November 2002). But if there is already an election for this very seat in November 2002, I don't see any provision granting the governor the power to "call off the election" -- quite a striking power for a governor to have, at least setting aside natural disasters and the like.

     In fact, another statute, N.J. Stat. 19:27-4, seems to recognize that vacancies that happen right before a seat is about to be filled in a normal election should generally be taken care of through the normal electoral calendar:

When any vacancy happens in the representation of this State in the United States Senate or in the House of Representatives, the Governor shall issue a writ of election to fill the same unless the term of service of the person whose office shall become vacant will expire within six months next after the happening of the vacancy and except as hereinafter provided.

So if Torricelli resigns within 30 days before the November 2002 election, the Governor wouldn't even have the power to call a special election (note that 19:27-4 was enacted after 19:3-26, so if the two conflict, 19:27-4 prevails). (I suppose it's possible to say that though it's no longer the case that the Governor "shall issue a writ of election," he still may do so, in his own discretion -- but I don't think that's the most natural reading of the statute.) The only provision that even might serve to postpone the filling of the seat is the provision about "the second succeeding general election," which might be triggered regardless of the Governor's discretion. But I don't think this can be right, because it would suggest that if an incumbent dies or resigns right before the election at which he was to be replaced, the seat won't be filled by election until a year later, even if the incumbent wasn't running for reelection, and all the main candidates for reelection were still in the race. And the election that was about to fill this seat would therefore be implicitly canceled, an odd thing to implicitly happen to an election.

     So if Torricelli resigns, the vacancy will be filled in the November 2002 election. The governor can appoint a temporary senator, but he will sit only until "a . . . general election shall have been upheld," which is to say until the November 2002 election, "and the board of state canvassers can deliver to his successor a certificate of election," which will happen right after the November 2002 election elects a sucessor. Nothing, of course, is certain in such matters, but it seems to me that my reading of the statute is the one that's most consistent with the text and with the overall scheme of the election statutes, at least as I see it.

 
[Eugene Volokh, 8:53 AM]
HAWKS AND DOVES: The more I think about it, the more unfortunate these metaphors seem to me. Hawks don't argue with doves; they sometimes eat them, no? And, as my friend Steve Newman pointed out, of course doves are dovish: That's the only game in town when you're a dove. Hardly fair to many thoughtful doves that I know.

     The better analogy for my dovish but principled friends would be some bird that can attack other birds -- but chooses not to. Unfortunately, not a lot of ethical vegetarians out there in the animal kingdom . . . .

 
[Eugene Volokh, 8:40 AM]
HUSSEIN AND SALADIN: Here's Dan Rather on the Larry King Show, June 4, 2002:

Beyond that, if [President Bush] asked me about Saddam Hussein, I would say I think the most misunderstood thing about Saddam Hussein may be this: When his feet hit the floor every morning, he is dreaming of being the modern Saladin. He dreams of leading a victorious Arab army through the streets of Jerusalem. Whether you like it, don't like it; whether you're terrified by it or don't think about it, it's absolutely crucial to -- critical to understand that that's what's in his head and heart, and that's what he dreams.

And here's a story from the Independent (London), Dec. 20, 1998:

He saw himself as the new Saladin, his destiny to free the Middle East from the Western infidel and to establish Iraq as the dominant power in the region. Instead he has become the supreme demon of his age. He has inflicted upon his country military humiliation, impoverishment and international isolation -- not to mention the loss of more than half a million lives in two futile wars. And yet, even as the bombs and cruise missiles rain down upon Baghdad, Saddam Hussein is still there.

And here's an article from the New Yorker, Dec. 11, 2000:

Tikrit [outside which Hussein was born] was the birthplace of Saladin, the Muslim warrior and sultan who captured Jerusalem in 1187 and fought against Richard the Lion-Hearted in the Third Crusade. The connection between Saladin and Saddam is important in the official telling of Saddam's life. "President Saddam Hussein is a man who cannot be understood in the West, because Iraq is different," Ala al-Bashir, the plastic surgeon who is obsessed with Zionists, said to me. "He keeps history very much in his mind, he sees everything" -- here al-Bashir stretched his hands out wide -- "in a great breadth, keeping in mind the past, the present, and the future. President Saddam Hussein wants Iraq to be elevated from its circumstances, to be rais d up. To raise it to the level that the world's oldest civilization should have."

Of course, it is certainly possible that Hussein only cares about maximizing his lifespan, and dreams of gambling for centuries-long glory are in fact far from his mind. Perhaps this very ambitious man's ambitions extend only to life and power today; perhaps he doesn't share some other ambitious men's desires to be remembered as great victors by future generations. Or perhaps even if he does lust for posthumous glory, his love for his people, coupled with his continued affection for his own skin, would keep him from engaging in foolish nuclear gambles.

     But I ask again: Should we ourselves gamble on this? Because letting Hussein get nuclear weapons, and then playing the deterrence game with him, means that very sort of gamble.

 
[Eugene Volokh, 8:05 AM]
COOL: Just noticed that the great Mark Steyn, whose work I much admire, quoted a line from this very blog (and I'm sure he got it from the blog, since I've never really talked or corresponded with him, except once or twice to ask permission to redistribute some of his articles). I'm very pleased.

 
[Eugene Volokh, 7:43 AM]
MORE ON SADDAM AND RATIONALITY: Anne Applebaum, writing in Slate, makes some great points:

Steve [Chapman] points out that Saddam Hussein didn't make use of his biological and chemical weapons during the Gulf War, because "President Bush had let him know beforehand that if he did, we would turn Baghdad into a smoking pile of nuclear rubble." He went on to argue that Saddam's nukes/chemical/biological weapons have been (or will be) acquired largely for the purposes of deterrence, and that there is no reason to believe he would actually use them against us, if he knew he and his countrymen would be blown to smithereens in response.

To assume that is to assume that Saddam operates according to the same rational criteria that you and I operate by—or that the United States and the USSR operated by (more or less) during the Cold War and that India and Pakistan operate by today. It is to assume, in other words, that Saddam would never make use of his weapons of mass destruction, simply because he would be too frightened of the possible consequences for his country. This is a big assumption, given that not every dictator in history has always had his country's best interests at heart. As you might have guessed, Hitler, the man in the forefront of my brain, comes to mind here: Faced with defeat in 1945, he refused to let his countrymen stop fighting. He preferred, instead, to see them die in suicidal last stands, actively willing the devastation of his country. As his capital city was turned into a wasteland—the ground zero of its day—he hailed the arrival of Armageddon and committed suicide, leaving the rest of Germany to its fate.

Although I dislike the modern tendency to compare every mad dictator to Hitler, in this narrow sense, the comparison to Saddam might be apt. Are you sure Saddam would not risk the destruction of his country, if he thought, for some reason, that he or his regime was in danger? Do you want to wait and find out? In my view, Saddam's personality—which I would really like to see more carefully and more frequently dissected by people who know him and his regime—ought to be as much a part of the debate about whether to intervene as his putative nuclear arsenal. We really don't know whether deterrence will work in the case of Iraq. Megalomaniacal tyrants do not always behave in the way rational people do, and to assume otherwise is folly.

 
[Eugene Volokh, 10:07 PM]
ONE MORE REASON WHY AN OCTOBER TORRICELLI RESIGNATION CAN'T VOID THE NOVEMBER ELECTION: Thinking some more about the statute below, I thought of the following. Imagine that there's an election this November between two newcomers, Jones and Smith; the incumbent, Isaacs, isn't running (perhaps he's too old). Then in late October, the incumbent dies (perhaps he was too old). What happens?

     Surely the election would still proceed apace. True, "a vacancy [has] happen[ed] in the representation of this state in the United State senate"; but it doesn't follow that somehow the governor must call off the November election and then schedule a special election, or appoint someone to serve until "the second succeeding general election," which will happen a year later. In fact, the governor doesn't seem to be given any authority to call off the November election. At most the governor will be able to make a temporary appointment until the regularly scheduled "general election" (the one this November), at which point "the board of state canvassers can deliver to [the appointee's] successor" -- the one chosen this November -- "a certificate of election."

     The "unless such vacancy" clause does seem odd here, because it suggests that the election would be delayed for a year. But I think in context we see that the purpose of the "unless such vacancy" clause is to deal with the not uncommon situation where a vacancy happens a month before an election other than the one in which the vacancy will be filled (for instance, in October 2004 when the term is filled in the November 2002, 2008, 2014, etc. elections). So the "unless such vacancy" clause ought not, I think, be applicable when the vacancy would in any event be regularly filled within the few weeks after the vacancy is created. That's got to be true, if I'm right that a Jones-Smith November 2002 Senatorial election can't be called off because Incumbent Isaacs dies in October 2002.

     I think the same has to apply if the race is a Jones-Isaacs race (or, more precisely, a Jones-Isaacs-Doe-Roe-Moe race, where Doe, Roe, and Moe are third-party candidates -- I assume there are indeed third-party candidates running), and Incumbent Isaacs quits in October 2002. The election is still scheduled for November 2002; the governor has no power to call off the election; at most he can appoint someone to fill Isaacs' seat until a general election shall have been held pursuant to law (November 2002) and the board of state canvassers can deliver to his duly elected successor (one of Jones, Doe, Roe, and Moe) a certificate of election.

 
[Eugene Volokh, 7:46 PM]
"VOTE FOR ME AND I'LL RESIGN." The other Torricelli Resignation Strategy -- Torricelli stays in the race, but promises that he'll quit right after he's elected, so that the governor (a Democrat) can appoint Alternate Candidate X -- seems to me legally viable. X's term will only be a year, until the next general election, but then X can run for reelection. I'm not sure if this will fly politically, but I don't off-hand see any legal problems with this. It's not that different from the 2000 Carnahan race, where the governor promised that he'd appoint Jean Carnahan if the late Mel Carnahan won; it's just that the vacancy would be caused by Torricelli's post-election resignation, rather than by Carnahan's pre-election death.

UPDATE: Great minds think alike -- and so do Bill Sulik and I. See his post on the subject.

 
[Eugene Volokh, 5:49 PM]
WHAT IF TORRICELLI RESIGNS WITHIN 30 DAYS BEFORE THE ELECTION? CORRECTION: THIS POST HAS AN ERROR; a revised and, I hope, more accurate post is here. My apologies for the error. The remainder of the post is left here only to avoid charges of historical revisionism . . . .

     Mickey Kaus argues that it's possible that "Torricelli steps down in late October and New Jersey's Democratic governor appoints a replacement and simply calls off the election," citing the following statute:

If a vacancy shall happen in the representation of this state in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within thirty days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this state shall deem it advisable to call a special election therefore, which he is authorized hereby to do.

The governor of this state may make a temporary appointment of a senator of the United States from this state whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the board of state canvassers can deliver to his successor a certificate of election.

Now I am not a New Jersey election law specialist, and the background law behind these statutes can get pretty complex; but as I read the statute, an appointee can only serve "until a special election or general election shall have been held pursuant to law." The next "general election shall have been held" in due course in November 2002; the new appointee "shall serve as such senator" only until that date.

     But what about the first paragraph? Well, it does authorize the governor to call a special election, which he might often have to do: If, for instance, Torricelli's term expired right after the end of 2004 or 2006, and Torricelli resigned on October 31, 2002, then the governor could either call a special election, or let the next election happen in November 2003 ("the second succeeding general election" after October 31, 2002, the first being in November 2002). But if there is already an election for this very seat in November 2002, I don't see any provision granting the governor the power to "call off the election" -- quite a striking power for a governor to have, at least setting aside natural disasters and the like.

     So if Torricelli resigns, the vacancy will be filled in the November 2002 election. The governor can appoint a temporary senator, but he will sit only until "a . . . general election shall have been upheld," which is to say until the November 2002 election. Nothing, of course, is certain in such matters, but it seems to me that my reading of the statute is the one that's pretty firmly dictated by its text.

     There's one possible grounds for disagreement with this that I can see. The first paragraph, the argument would go, says "If a vacancy shall happen in the representation of this state in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within thirty days next preceding such election . . . ." Therefore, the argument would go, even if Torricelli's successor would normally be chosen in November 2002, that election would be automatically called off if Torricelli resigned within 30 days before the election, because the "unless" clause is satisfied.

     But this still wouldn't allow the governor to appoint a replacement who will sit past the November 2002 election, since the replacement can only sit until "a special election or general election shall have been held" -- which is to say until the November 2002 general election. I might be missing something here, but I don't think so.

NOTE: My original post said that "If, for instance, Torricelli's term expired right after the end of 2004 or 2006, and Torricelli resigned on October 31, 2002, then the governor could either call a special election, or let the next election happen in November 2004 ('the second succeeding general election' after October 31, 2002, the first being in November 2002)." My friend and fellow lawprof Jonathan Adler e-mailed me to point out that in New Jersey, general elections are yearly affairs -- "The general election shall be held on the Tuesday next after the first Monday in November in each year," N.J. Stat. 19:2-3 -- so the second succeeding general election would be in November 2003, not November 2004. This doesn't materially change my analysis, but I thought that I'd flag the correction. Again, take what I say with a grain of salt here; it takes an expert on New Jersey election law to really give a fully educated answer to such questions.

 
[Eugene Volokh, 5:26 PM]
THE LIMITS OF EXTRAPOLATION: According to The Weekly Standard (thanks to InstaPundit for the link),

At a recent luncheon held by the Ethics and Public Policy Center in Washington, D.C., [journalist David] Aikman related his bold conclusion: In a few decades China will be a Christian nation.

Aikman cites numbers: In 1949, when the People's Republic of China was established, not quite 4 million of 450 million Chinese were Christians. Today, the population is 1.3 billion; Christians are an estimated 80 million, most of them Protestants. At those rates of growth, he says, in a few decades 40 percent of the population will be Christian.

Aikman observes that there need not be a majority Christian population for Christian principles to affect China. Thirty percent or so, he says, would suffice.

I have no opinion on whether this trend would be good -- but I wonder just how we can soundly assume "those rates of growth." Converting over 400 million people in "a few decades" is no cakewalk, and the fact that 75 million were converted (or were born to converts) in 53 years doesn't tell you much about how feasible this will be. Sure, maybe the more have been converted, the faster new people will convert. But maybe the conversions have reached those who are the likeliest targets, and the next batch, even of 75 more million, will be considerably harder.

     Perhaps Aikman has more specific evidence for his claims, though the article didn't point to much. But the "numbers" plus an assumption of constant "rates of growth" (in geometric progression) strikes me as not tremendously sound. Among other things, even assuming that these progressions are normally geometric (and I have no reason to think that they are), Aikman's numbers show that the fraction of Chinese who are Christians grew roughly 7-fold in 50 years. To reach 40% would take nearly 50 more years -- and as we know, huge cultural changes can happen in 50 years, cultural changes that make such long-term forcasts not very helpful.

     Mark Twain once wrote (I hope this source is accurate, but I've often seen this credited to Twain; paragraph breaks added):

In the space of one hundred and seventy-six years the Lower Mississippi has shortened itself two hundred and forty-two miles. That is an average of a trifle over one mile and a third per year.

Therefore, any calm person, who is not blind or idiotic, can see that in the Old Oolitic Silurian Period, just a million years ago next November, the Lower Mississippi River was upwards of one million three hundred thousand miles long, and stuck out over the Gulf of Mexico like a fishing-rod. And by the same token any person can see that seven hundred and forty-two years from now the Lower Mississippi will be only a mile and three-quarters long, and Cairo and New Orleans will have joined their streets together, and be plodding comfortably along under a single mayor and a mutual board of aldermen.

There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.

UPDATE: Clayton Cramer makes a very plausible argument that Christianity will indeed expand still more in China -- and he may well be right. My point is simply that the mathematical extrapolation on which the article seemed to be relying is very weak evidence for that proposition.

 
[Eugene Volokh, 4:27 PM]
UPDATE ON THE AMERICAN HERITAGE ERROR. I just e-mailed the editors with my criticisms of the Evans piece on the Fourteenth and Second Amendments; we'll see what their response will be.

 
[Eugene Volokh, 4:09 PM]
CONCEALED CARRY: Reader Chris Shepley writes, apropos celebrities getting concealed carry permits:

Another way that money makes it much easier to protect oneself is by hiring a security guard. Security guards are able to carry concealed weapons in almost every municipality, even Washington DC (which has notoriously strict handgun laws). Thus, wealth allows one to carry by proxy. Though security guards cannot necessarily be concealed, one might not recognize them as being security forces and they would have the same effect. I wonder what the legal argument is that makes it okay to hire someone to carrry a gun for one's protection but not okay to undergo a similar level of training to protect oneself.

This is a common argument, but one that I think Shepley puts very well.

 
[Eugene Volokh, 2:25 PM]
SPOTTED ACCIDENTALLY ON A DICTIONARY PAGE: Flipping the pages to look for the definition of "flip" (an editor suggested that this was colloquial for "flippant," which I think isn't really so), I ran across the following term:

foolometer n. joc. M19 [i.e., first attested in the mid-19th century]. A standard for the measurement of fools or folly.

A really useful term, especially if one can broaden it to include a device for the measurement of fools -- and if one can then build and sell the device.

 
[Eugene Volokh, 1:55 PM]
KOPEL ON THE TORRICELLI SUBSTITUTION FRACAS: David Kopel has a detailed piece on the legal rules surrounding replacement of Senatorial candidates in New Jersey; I haven't personally checked all the sources, but the piece seems sound, and I've found Kopel to be quite accurate in the past.

 
[Eugene Volokh, 10:44 AM]
AMERICAN HERITAGE MIGHT WANT TO START USING SOME SLIGHTLY MORE KNOWLEDGEABLE WRITERS. Here's a piece on most overrated and underrated constitutional Amendments -- part of American Heritage's cover story -- by Harold Evans, "the author of The American Century and former editorial director of U.S. News and World Report." (Thanks to reader Raymund Eich for pointing it out to me.) I quote it in reverse order, because the most glaring errors (and ones that have been least discussed on this list before) are in the second half:

Underrated

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

I quote only the first paragraph of this most pregnant amendment, the others having less relevance today. The Fourteenth has been the battleground of the most profound struggles for freedom and justice against all manner of coercion, but, lawyers apart, it is not on everyone’s lips as are the First and Second amendments. We just take it for granted. If the Second Amendment is distinguished by 13 prefatory words that incite instant amnesia, the Fourteenth demonstrates the potency in four words: due process and equal protection. There were several decades in the early part of the twentieth century when reactionary judges saddled up on those four words as horsemen of the apocalypse, using the concept of liberty of contract to strike down anything that smacked of interference with the company’s property rights in its workers; a congressional law banning the employment of children under 14 was ruled unconstitutional in 1918.

Actually, the Act of Congress was ruled unconstitutional (see here to read the decision for yourself) on the grounds that it exceeded Congress's enumerated powers under article I. The four words "due process" and "equal protection," as well as the words "liberty of contract," do not appear in that case.

Modern courts have reversed the priorities. The Fourteenth has been deployed to extend the protections of the Bill of Rights against oppressive actions by states or corporations or individuals.

One-third right, two-thirds flat wrong. The Fourteenth Amendment has now been read to cover actions by states (and local governments), but it does not generlaly apply to corporations or individuals, except in a few rare situations where the corporations or individuals are seen as acting on behalf of, or in league with, the state. The first three words of the relevant sentence are, after all, "No State shall," and the Supreme Court has repeatedly stressed that the amendment thus does not apply to nongover mental actors. "Because the [Fourteenth] Amendment is directed at the States, it can be violated only by conduct that may be fairly characterized as 'state action.'" Lugar v. Edmondson Oil Co. (1982). That's elementary constitutional law.

Not only that. It has been the means of enhancing the rights for new situations. The struggles will continue between those who would see the Fourteenth Amendment as incorporating the entire Bill of Rights and the partial incorporationists, but the Fourteenth is the reason “all persons” can look for protection over a vast range of civil liberties: racial and sexual discrimination in work, in housing; voting rights; fair trial; child labor; workmen’s compensation; minimum wages; bureaucratic harassment; free speech. The arguments about the exact meaning of the Fourteenth are sure to go on. It is that important.

Mostly false. Race and sex discrimination in private employment and in privately-owned housing are illegal because they are outlawed by Acts of Congress, not by the Fourteenth Amendment; likewise for child labor, workmen's compensation, and subminimum wages. And these statutes have been enacted under Congress's Commerce Clause power, not the Fourteenth Amendment. (One might argue that the existence of the Fourteenth Amendment helped, as a political matter, to promote Congressional bans on race discrimination; but if it's true, it's true only as a matter of political dynamics, not as a matter of law; and it's surely not true for child labor, workmen's compensation, and subminimum wages.)

Overrated
“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.”
e Amendment, and the phrase the right of the people to keep and bear arms" actually means. The Bill of Rights, after all, is a legal document, which was understood as having legal meaning. Is it just that "'a well regulated Militia' could be organized at the local level"? If so, how does one example the language about "the right of the people," which seems to track the individual rights secured as "the right[s] of the people" by the First and Fourth Amendments?

The amendment limited only federal power; it left states free to regulate the use and possession of arms.

That much is true, but might it not be worth mentioning that the same was originally true of all of the Bill of Rights? It was the Fourteenth Amendment that the author so praises that applied most of the rest of the Bill of Rights to the states -- any thoughts about whether it should be read as applying the Second Amendment to the states the same way that it has been read as applying the First, Fourth, and most others?

And even as applied to the federal government, the prohibition has been watered down by the courts with more weasely words. The arms that the people have a right to keep and bear are only those that the militia of the day might keep and bear, not sawed-off shot-guns, machine guns, and other means of mayhem our day may contrive.

If the author is using "the militia of the day" to refer to the militia of 1791, then he has no legal authority on his side -- I know of no case that held that the Second Amendment is limited to 1791-era guns, any more than the First Amendment is limited to 1791-era printing presses. If he's using it to refer to the militia of today, then I don't see how he's distinguishing "machine guns[] and other means of mayhem our day may contrive." The question of what arms the Second Amendment should properly be read as protecting (whether the Amendment secures an individual right or a states' right) is a complex one; but the author's take on this question makes no sense.

     I don't get it: If the American Heritage wants someone to write about constitutional law, surely they could have found someone who actually knows some elementary constitutional law (plus some elementary details about current gun control debates, such as the fact that Ashcroft is a defender of virtually all federal gun control laws). Why didn't they?

 
[Eugene Volokh, 10:05 AM]
A BIT MORE ON MY HUSSEIN NUCLEAR BLACKMAIL SCENARIO: As promised, I wanted to respond to at least a few of the reactions I got to my National Review Online piece. I covered two yesterday; here is a third, also from Max Sawicky:

On the rationality of suicide question, Volokh depicts Saddam as an idealistic, fanatical Islamist who is prepared to die for his beliefs. Anyone who has learned a bit about Iraq knows that Saddam's Islamism is recent and opportunistic. The idea of an old person ("in his 70s") not fearing death is also questionable, to say the least. One could also imagine valuing each day more, the older one gets, since after all there are not as many remaining. Especially when you've got the palaces and the seventy virgins in this life, rather than the next.

Actually, I think my article did not depict Saddam as an idealistic, fanatical Islamist (because indeed he has historically not been much of an Islamist). It depicted him as someone who's willing to use the rhetoric of idealistic, fanatical Islamism, but who's really after a much more ecumenical desire: Glory. ("[I will] bask myself in the reflected glory of that deed, for now and for centuries to come. Saladin is still remembered nearly a thousand years after his death; Hussein would be remembered for a thousand years alongside him.")

     This desire for glory, like most preferences, is not rational or irrational as such, any more than the desire for revenge, chocolate, or abstract knowledge is rational or irrational. It is a preference, but it's one that many leaders have historically had. Napoleon probably could have lived longer if he hadn't invaded Russia, and even viewing matters without the benefit of hindsight, he must have realized that it was a risky gamble. What made the gamble worthwhile, I assume (I'm no expert in Napoleonic history, but this seems to me quite likely), was his desire to be seen and remembered as a great conqueror. (The desire for power is related to this, of course, since power and glory often but not always go hand in hand, at least during the person's lifetime.)

     Likewise, as I understand it (and again I'm no historian of the era, but this is a pretty conventionally accepted understanding), Julius Caesar was considerably animated by his desire both for power during his life and glorious memory after. Many of his conquests might have been political self-preservation, but my sense is that many of the risks that he took were taken for the sake of gaining glory and not just not losing political standing (or his life). And it worked: As someone pointed out, 1950 years after his death, two of the Great Powers were headed by people whose titles bore his name; and 1/12 of the year was named after him. Quite an achievement, and one that I suspect has been a beacon for many glory-seekers since.

     So as I said, the desire for glory -- for adulation of the multitudes, and the expectation during your life that your name will be remembered after your death -- is a not uncommon preference, especially among the ambitious. Given this preference, much behavior that would seem irrational if your only goal is maximum lifespan, or even maximum lifespan with maximum earthly goods, becomes rational. Rationality, after all, is the term we use for describing how people achieve their goals; risking your life to save your child is irrational if your preferences are limited to saving your own skin, but rational if your preferences include saving those whom you love. Likewise, deadly gambles may be rational in people whose preferences place a heavy weight on glory, even if the leaders aren't suicidal, idealistic, fanatical, or Islamist.

     Of course, we don't know whether Hussein is such a person; but his obviously dangerous gambles in Iran and Kuwait suggest that he might value some things -- such as power -- more than his own personal survival. It's certainly quite possible that he values glory likewise.

     So the question becomes: Are we willing to gamble, not just on Hussein's rationality, but on Hussein's lack of desire to be the modern Saladin, and his lack of willingness to take risks in order to achieve this goal? I think the answer is no. Sawicky labels his post disagreeing with my piece as "paranoia strikes deep"; but paranoia is irrational fear. It seems to me that our fear that Hussein's preferences may include more than just maximizing his own old age is quite rational.

     (Thanks to Zachary Barbera, by the way, for suggesting Saladin as a potential -- albeit hypothetical -- concrete focal point for a Hussein's lust for glory.)

 
[Eugene Volokh, 9:00 AM]
HARD TO GET A CONCEALED CARRY PERMIT IN NEW YORK, unless you're famous. Clayton Cramer points to a newspaper article that says comedian Buddy Hackett has one. "[B]eing a celebrity like Robert De Niro helps," Cramer points out. "[W]orking for the mayor helps; being rich and transporting lots of cash helps; being a poor person trying to protect herself from rape just won't cut it."

 
[Eugene Volokh, 7:36 AM]
"CENSORSHIP IN TIMES OF CRISIS": I just got an ACLU e-newsletter titled "War on Words: Censorship in Times of Crisis". Now it says a lot about government searches, military tribunals, and various other things, but nearly nothing about actual censorship -- governmental restrictions on what people can say or write. (The only exception is a brief discussion of a Patriot Act provision that on its face seems to bar anyone, including people outside law enforcement, from revealing the existence of a Foreign Intelligence Surveillance Act wiretap.)

     "The First Amendment violations now taking place are more subtle than in decades past and have not been widely reported in the press," the item warns. They are subtle indeed -- too subtle for me . . . .

 
[Eugene Volokh, 3:53 PM]
"AS NIGHTMARISHLY LETHAL, memetically programmed death-machines went, these were the nicest you could ever hope to meet." Glenn Reynolds' recent (well, not that recent by now, but I've been slow posting this) quotes from Neal Stephenson's Cryptonomicon remind me that I really need to rave some about this book. It's one of the best adventure stories that I've ever read, and I've read a lot of adventure stories. Stephenson is a science fiction writer, but Cryptonomicon isn't really science fiction as such -- it's more a techno-thriller (the technology being cryptography), set partly during World War II and partly in the very near future.

     Like most first-rate adventure stories, the book has a fascinating, intricate plot, believable and three-dimensional characters, and vastly entertaining writing. Like many such stories, it also has some interesting ideas, though they never distract from the story-telling. I've recommended it to dozens of people, and nearly all of them (including ones who don't much care for science fiction and techno-thrillers) have loved it. The ending is perhaps a bit weaker than the rest of the book, but it's not disappointing, just a bit less great than the fabulous stuff that comes before it.

     After this lead-in, a quote from the book is sure to be a disappointment, but I can't help myself; this is from what might be called the second chapter (the first chapter, a sort of prologue, is also excellent, but it's not as engaging, because you can't fully appreciate it until later in the book):

Let's set the existence-of-god issue aside for a later volume, and just stipulate that in some way, self-replicating organisms came into existence on this planet and immediately began trying to get rid of each other, either by spamming their environments with rough copies of themselves, or by more direct means which hardly need to be belabored. Most of them failed, and their genetic legacy was erased from the universe forever, but a few found some way to survive and to propagate. After about three billion years of this sometimes zany, frequently tedious fugue of carnality and carnage, Godfrey Waterhouse IV was born, in Murdo, South Dakota, to Blanche, the wife of a Congregational preacher named Bunyan Waterhouse. Like every other creature on the face of the earth, Godfrey was, by birthright, a stupendous badass, albeit in the somewhat narrow technical sense that he could trace his ancestry back up a long line of slightly less highly evolved stupendous badasses to that first self-replicating gizmo -- which, given the number and variety of its descendants, might justifiably be described as the most stupendous badass of all time. Everyone and everything that wasn't a stupendous badass was dead.

As nightmarishly lethal, memetically programmed death-machines went, these were the nicest you could ever hope to meet. In the tradition of his namesake (the Puritan writer John Bunyan, who spent much of his life in jail, or trying to avoid it) the Rev. Waterhouse did not preach in any one place for long. The church moved him from one small town in the Dakotas to another every year or two. It is possible that Godfrey found the lifestyle more than a little alienating, for, sometime during the course of his studies at Fargo Congregational College, he bolted from the fold and, to the enduring agony of his parents, fell into worldy pursuits, and ended up, somehow, getting a Ph.D. in Classics from a small private university in Ohio. Academics being no less nomadic than Congregational preachers, he took work where he could find it. He became a Professor of Greek and Latin at Bolger Christian College (enrollment 322) in West Point, Virginia, where the Mattaponi and Pamunkey Rivers came together to form the estuarial James, and the loathsome fumes of the big paper mill permeated every drawer, every closet, even the interior pages of books. Godfrey's young bride, nee Alice Pritchard, who had grown up following her itinerant-preacher father across the vastnesses of eastern Montana -- where air smelt of snow and sage -- threw up for three months. Six months later she gave birth to Lawrence Pritchard Waterhouse.

For a longer excerpt, go here; but, better yet, don't go there, just buy the book (and, no, I'm not getting a kickback out of the amazon link), and see what happens to mathematician Lawrence Pritchard Waterhouse, his computer programmer grandson Randy, and the remarkably interconnected groups of fascinating characters with whom their lives intertwined. You'll be glad you did.

 
[Eugene Volokh, 3:13 PM]
ROSENBERG ON MIGUEL ESTRADA, CHUCK SHUMER, AND SUPREME COURT CLERKS: An interesting point, much worth reading.

 
[Eugene Volokh, 2:59 PM]
AH, THE WONDERS OF MODERN TECHNOLOGY: Dancing Bush.

 
[Eugene Volokh, 2:21 PM]
THREATENING MASS NUCLEAR KILLING: In my National Review Online piece last Friday, I argued that deterrence goes both ways: If Hussein gets nuclear weapons, he may try to use them to pressure us -- to pressure us into not defending his neighbors against attack, to cut off aid to and trade with Israel, and perhaps even to turn over Iraqi dissidents whom we may be sheltering -- just like we'd use our weapons to try to pressure him into not attacking us.

     Like Hussein's attacks on Iran and Kuwait, such attempts might prove to be miscalculations; but he might indeed try them, even if he's relatively rational, and if he feels that the value of possible centuries-long glory outweighs the risk of flaming death (not a common view, but one that some political and military leaders have at times taken). In my scenario, Hussein would detonate a nuclear bomb over a deserted chunk of the Nevada desert, as proof that he could deliver the weapons, and then threaten to detonate bombs hidden in U.S. cities if we don't comply with his demands, or if we attack him.

     Ken Hirsch, in a particularly interesting and thoughtful post, suggests that Hussein would have to be "suicidal" to try this. Our reaction, Hirsch suggests, would be 10-megaton attacks on Hussein's largest military base and presidential palace, and threats to bomb Baghdad and other cities if Hussein doesn't immediately capitulate. Hirsch also proposes creative strategies to try to get Baghdad's bomb-minders in the U.S. cities to give up.

     There's much to what Hirsch says, but let's step back a bit: If Hussein's presidential palace is inside a city, the proposal -- like nuclear deterrence generally -- would require us to kill hundreds of thousands of Iraqi civilians. It would also require us to threaten to kill millions more, by bombing Iraqi cities. These would be millions of Iraqi civilians slaughtered, not just as collateral damage caused by an attack on a military target, but precisely in order to kill them, with the intention of getting the Iraqis to surrender.

     This is not a terribly nice thing to do. Would we have to do it? Yes. Would we be justified in doing it? I think so. But it's the sort of justification that might justify a starving man in a lifeboat killing an innocent fellow passenger in order to eat him.

     We would, I think, consider it morally excusable, but surely it's not morally wonderful. As America keeps pointing out, there's a big difference between (1) killing civilians as an unfortunate side effect of an attack on a military target -- an attack that is made as precise as possible, in order to kill as few civilians as possible -- and (2) killing civilians in order to inflict damage on the other side, and to thus beat it into submission. And the logic of nuclear deterrence (as opposed to the logic of a preemptive attack today on Iraq) is precisely #2.

     Now if nuclear deterrence fully succeeds, then the moral difficulty is avoided: The threat of killing civilians by the millions prevents the need to actually kill civilians by the millions. But the problem is that the more humanitarian one appears, the more one appears to be concerned about the opinions of "the international community," the more one appears to care about the views of "the Arab street," the more one subscribes to the view that in this interconnected world we ought not try to make too many mortal enemies, the less credible the deterrent will be.

     After all, to make good on the deterrent, we have to be willing to kill hundreds of thousands, or millions, of innocents. We have to be willing to make mortal enemies of those who will understandably be upset by those deaths. (True, if we beat them into submission enough, as we did with Japan, they may all surrender -- but presumably the attack on Iraq alone won't be as devastating a defeat of Arab nationalism or Islamo-fascism as the defeat of Japan was.) We have to be willing to ignore the voices that will surely be raised in Europe and in other places against our actions.

     And this is especially so if the extent of Hussein's attack on us is as I described: a bomb detonated over a deserted area, yielding very few casualties, plus a threat to detonate more in American cities, plus a list of demands that would dramatically increase Hussein's power and weaken our power, but that isn't tantamount to, say, an Iraqi invasion of the U.S. Incinerating an Iraqi city (assuming Hussein's main presidential palace is in a city, which it would surely be wise for Hussein to arrange) because of that would be seen as quite a harsh act. It may be a necessary act, but the more humanitarian, internationally-minded, and make-no-enemies we seem to be, the more it will seem that we won't be willing to commit such an act.

     And of course let's not forget that part of Hussein's threat is to incinerate American cities while we incinerate the Iraqi ones. Hirsch suggests a promising plan to decrease the risk of that happening -- but it's hardly a foolproof plan. It seems to me it's quite possible that Hussein might reason that we won't retaliate as Hirsch suggests, because we won't want to bring about the deaths of hundreds of thousands of innocent Americans and of hundreds of thousands of innocent Iraqis.

     Will Hussein be right about this? I don't know; much depends on how hard-hearted (in a good way) the President of the U.S. will be. But it's possible that Hussein will think that he can deter us more effectively than we can deter him. And even if this is a miscalculation, it will be a tragic one.

THE DARK SIDE OF THE "PEACE THROUGH DETERRENCE" MOVEMENT: But beyond this, I think this shows the dark side of the peace-through-deterrence movement. Peace through deterrence will only work if we are willing to threaten to butcher hundreds of thousands of innocent civilians -- and to make the threat credible, we might at some point have to make good on it. Maybe we'll avoid the need; I surely hope that we will, as we managed to avoid it during the Cold War. But we can't be sure.

     Compared to this, a preemptive war, which can be carried on without intentional targeting of civilians, and which will thus likely lead to many fewer Iraqi civilian deaths (even setting aside American civilian deaths) than deterrence-gone-wrong, seems much more humanitarian. Yes, it will lead to certain costs, while deterrence leads to possible costs. But the costs of preemption are both numerically smaller and morally much less troubling. Unless we're quite sure that preemption will work -- and that we'll merely have to threaten mass killing rather than having to actually do it

 
[Eugene Volokh, 1:19 PM]
MORE DEVELOPMENTS -- AND FACTS -- ON UCSD AND STUDENT LINKS TO TERRORIST ORGANIZATIONS: From Wired:

Officials at the University of California at San Diego are reconsidering a recent decision that would have forced a student activist group to remove from its website a link to a guerilla group accused of being a terrorist organization.

The campus activist group, known as Burn, hosts its site on university equipment and provides links to other radical organizations. One link directs visitors to the official site of the Revolutionary Armed Forces of Colombia (FARC) -- one of the 34 groups on the U.S. government's list of foreign terrorist organizations.

UCSD University Centers director Gary Ratcliff . . . sent the initial cease-and-desist letter to the Ché Café Collective, the university group that sponsors Burn, on Sept. 16. The letter cites a section of the USA Patriot Act that deems it unlawful for any U.S. citizen to provide "material support or resources" to foreign terrorist organizations. . . .

A UCSD student and member of the Collective who says her name is Allie Katz noted that Burn would not take down the link if the university decided to stand by its initial demand. "We see this as a free-speech issue," she said. "Merely having a link doesn't constitute material support." . . .

The site provides more than just a link to FARC, though. Visitors who click on the link are taken to a splash screen hosted at burn.ucsd.edu before being redirected to the FARC site.

Ratcliff believes the splash screen might be an indicator of extended support for FARC. "The academic computing department has found that some outside groups have Unix accounts on the Burn server," said Ratcliff. "We're not sure if FARC does, but that's why we'd like to talk further with the students."

The Burn site also hosts a number of Web pages promoting the Kurdistan Worker's Party (PKK) -- which the State Department also considers to be a terrorist organization.

"Between the extremes of a scholarly article and an actual terrorist site, there is a lot of gray," said Fausett. "If the link comes in the context of a website that promotes terrorist activities and encourages readers to give aid to FARC, then that likely is in violation of the law."

 
[Eugene Volokh, 9:29 AM]
SADDAM AND DETERRENCE: I've seen several thoughtful and interesting responses to my Friday National Review Online piece, which suggests that the "no need to preempt Saddam, we can just deter him instead" approach isn't that good a strategy. Two can play at the deterrence game, I argue; if Saddam gets nuclear weapons, we might be able to deter him (and I stress the "might") -- but he'll be able to deter us from things that we might want to do, and that we ought to be able to do.

     Unfortunately, I doubt I can get respond to all the responses, since I'm swamped today with, well, actual work, but I thought I'd try briefly reacting to as many as I can, one at a time. Let me begin with the first objection put forth by Max Sawicky:

One might begin by asking why the USSR had never implemented such a plan, given its overwhelmingly superior capacity to do so, relative to Iraq, along with very good reasons to fear U.S. attack. Or if they did, why didn't they ever use it? Were they irrational or timid, or was the FBI so good at deterring them, but is now conversely incapable of deterring Iraq?

     A few thoughts:

     1. As I have argued before, there's good reason to think that the USSR was both more rational and more risk-averse than solo dictatorships are likely to be:

[F]or virtually all of the nuclear age, the USSR was ruled by a clique that was intentionally organized to prevent dictatorial decisionmaking by one person. I'm not an expert in Soviet-era history, but to my knowledge this system provided a vast amount of "checks and balances" that would control any insanity or misjudgment on the part of one person, no matter how highly placed. (This was of course a reaction to Stalin, driven by the apparatchiks' fear for their own lives.) Khruschev, Brezhnev, Andropov, Chernenko, and Gorbachev may have been known in the West as the "leaders" of Russia, but their power, while immense, was very much shared with other Soviet higher-ups. Government by committee has lots of problems, but it does decrease the risk of rash, ill-calculated, megalomaniacal, or just plain insane action by one Hitler, Stalin, or Hussein. Deterring the USSR did not require that the General Secretary of the Communist Party remain rational [and risk-averse] -- only that enough of the ruling junta remain rational [and risk-averse].
     As I understand it, Iraq really is run by Hussein; obviously, there must be some other power centers there, but relative to the USSR's leaders, Hussein has much more dictatorial authority. If we rely on "Iraq's" rationality, we'd be relying on his rationality [and risk-averseness] -- or the rationality [and risk-averseness] of whoever succeeds him. (Note, incidentally, that after 1956 or so, the USSR also had a pretty well-ordered transition system, so there were no interregnums during which small factions fought it out with each other, and during which some part of the nuclear arsenal could easily be seized by a small group; we can have no such confidence as Iraq.) That's a much less safe bet than relying on the USSR's rationality [and risk-averseness] was.

     2. If one really thinks a nuclear-armed Iraq and a nuclear-armed USSR are similar for deterrence purposes, then this largely supports my thesis. The USSR, after all, did use its nuclear weapons as a threat that helped give it control over Eastern Europe, much like I hypothesize Iraq might use nuclear weapons to help give it considerable control over much of the Middle East. When the USSR invaded Hungary and Czechoslovakia, it was pretty clear that we couldn't do anything to help these countries, because of a fear of starting a nuclear war. If Iraq gets nuclear weapons, it will become that much riskier for us to defend, say, Kuwait or Saudi Arabia or Qatar or other of our allies or potential allies against invasion. Now I know some people think, for a variety of reasons, that we shouldn't have helped free Kuwait from the Iraqi invasion. But do we want to be deprived of this option in the future, by the danger of a nuclear-armed Iraq? As I said, deterrence can run both ways.

     Now of course a nuclear-armed Iraq will be in some ways less dangerous than a nuclear-armed USSR (though, as point 1 suggests, it might also be for other reasons more dangerous). The Soviets had many more nuclear bombs than the Iraqis are likely to have; and the Soviets also had their bombs backed by a larger and more effective army than Iraq is likely to field. We might have done nothing to help the Czechs and the Hungarians even if the Soviets lacked nuclear weapons. This analogy, like all analogies, is not perfect.

     But while nuclear bombs can't make Iraq as powerful as the USSR was in its heyday, it can certainly make it much more powerful than it is now -- powerful enough that many a U.S. President will be quite hesitant to defend Kuwait against it, or try to in some measure protect the Iraqi Kurds against it. So the USSR analogy suggests that while we might deter Iraq from nuclear attack on our cities, Iraq might be able to deter us from defending our friends and our property. (Note that my hypothetical involved Iraq detonating a nuclear bomb in the Nevada desert, which the USSR never did; but there's good reason for that difference -- we knew the USSR had long-range delivery capability, so the Soviets never had to tangibly prove this to us.)

     3. Finally, let's not forget how dangerous deterring the Soviets really was. Everything came out fine, but a few miscalculations here or there could have led to immense tragedy. Certainly many on the American Left kept pointing this out throughout the late part of the Cold War -- there was lots of talk about how dangerous nuclear deterrence was, and much of the talk had a kernel of truth. Do we want another such stalemate, though this time involving an adversary who might not be as rational, in a regime that might not be as stable (albeit less powerful)?

     So even if Iraq is like the USSR was, preemption is still better than deterrence. It would probably have been good if we could have preempted the Soviets, but preemption there was never really much of an option, except possibly during a tiny span of time -- they got nuclear weapons very quickly, and even before they did, they had a Red Army that was nothing to sneeze at. With Iraq, preemption is still (for a short time) a viable alternative. Better exercise that alternative now, before it's taken away from us by the force of Iraqi deterrence.