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Saturday, November 16, 2002


RELIGION OF ESPRIT DE CORPS: The newest manifestation of Blogspot's acting up -- I try to get to this very page and instead get Esprit de Corps, a Malaysian blog mostly written in Malay. I don't know what's written on it, but the MamaList of Islamic Links says it's a personal blog discussing the ummah (Muslim community).


LIBERTARIANS AND REPUBLICANS: According to an article that InstaPundit quotes, Republicans lost some important races (including the South Dakota Senate race) because of Libertarian candidates. These candidates, the theory goes, draw more votes from people who would otherwise vote Republican than from people who would otherwise vote Democrat (a plausible theory, though Clayton Cramer expresses some skepticism); had they not been in the race, the Republicans might have won. InstaPundit's conclusion:
[T]he solution is for the Republicans to avoid the big-government intrusiveness that alienates libertarian-leaning voters.
     Now I wish that this theory were right, since I'm generally on the libertarian wing of the Republican Party. But I just wonder whether this strategy would in practice work; after all, presumably the Republicans are drawing some other voters (whether Religious Right or neo-Rockefeller Republican) by some of their anti-libertarian positions. If Republicans soften their pro-life message, they may gain some Libertarians (who are mostly pro-choice), but they may lose some other voters. If they soften their war on drugs message, they may lose some conservatives and moderates. If they favor cutting more government programs, they may lose some moderates, and even people who are generally conservative but who favor this or that program (Medicare, farmer benefits, and so on).

     So here's my question: Does anyone have any facts, or even plausible conjectures, on how many votes Republicans would gain on balance if they shifted towards a more libertarian position? Now maybe they should shift this way as a matter of principle -- but if we're talking political strategy, the question I ask seems to be the important one.


RELIGION OF PEACE: Take a look at the "religion of peace" thread running through Quare, No One May Own This, Dust In The Light, and InstaPundit. My modest contribution:

Behold, I send an Angel before thee, to keep thee in the way, and to bring thee into the place which I have prepared. . . . For mine Angel shall go before thee, and bring thee in unto the Amorites, and the Hittites, and the Perizzites, and the Canaanites, the Hivites, and the Jebusites; and I will cut them off. Thou shalt not bow down to their gods, nor serve them, nor do after their works: but thou shalt utterly overthrow them, and quite break down their images. (Exodus 23:20, :23-24)

And the Lord said unto me, behold, I have begun to give Sihon and his land before thee: begin to possess, that thou mayest inherit his land. Then Sihon came out against us, he and all his people, to fight at Jahaz. And the Lord our God delivered him before us; and we smote him, and his sons, and all his people. And we took all his cities at that time, and utterly destroyed the men, and the women, and the little ones, of every city, we left none to remain: Only the cattle we took for a prey unto ourselves, and the spoil of the cities which we took. (Deut. 2:31-35)

So the Lord our God delivered into our hands Og also, the king of Bashan, and all his people: and we smote him until none was left to him remaining. (Deut. 3:3)

But of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth: But thou shalt utterly destroy them: namely, the Hittites, and the Amorites, the Canaanites, and the Perizzites, the Hivites, and the Jebusites; as the Lord thy God hath commanded thee: That they teach you not to do after all their abominations, which they have done unto their gods; so should ye sin against the Lord your God. (Deut. 20:16-18)

And that day Joshua took Makkedah, and smote it with the edge of the sword, and the king thereof he utterly destroyed, them, and all the souls that were therein; he let none remain: and he did to the king of Makkedah as he did unto the king of Jericho. Then Joshua passed from Makkedah, and all Israel with him, unto Libnah, and fought against Libnah: And the Lord delivered it also, and the king thereof, into the hand of Israel; and he smote it with the edge of the sword, and all the souls that were therein;
he let none remain in it; but did unto the king thereof as he did unto the king of Jericho. And Joshua passed from Libnah, and all Israel with him, unto Lachish, and encamped against it, and fought against it: And the Lord delivered Lachish into the hands of Israel, which took it on the second day, and smote it with the edge of the sword, and all the souls that were therein, according to all that he had done to Libnah. Then Horam king of Gezer came up to help Lachish; and Joshua smote him and his people, until he had left him none remaining. [And the same over again with a couple of other peoples, skipping a few verses; you get the picture.] So Joshua smote all the country of the hills, and of the south, and of the vale, and of the springs, and all their kings: he left none remaining, but utterly destroyed all that breathed, as the Lord God of Israel commanded. (Joshua 10:28-40)

Of course, also see Cathy Young in Reason on a similar note.

UPDATE: Reader William S. Aronstein suggests that the above is misleading because the offending Qu'ran verses are prescriptive, while the above are merely descriptive. "That is a telling difference, in my opinion, and those who adhere to the Holy Q'uran appear even today to behave differently from those who follow the Bible. Have the Jews in Israel -- or anywhere -- yet danced in the streets to celebrate the deaths of their enemies? The Jews do not revel in the deaths of terrorist murderers, while the Arabs celebrate the murders of innocent children." Not sure I buy the distinction in this case -- to the extent the Jewish text is descriptive, it's descriptive of the Founding Fathers, heroes of the Tribe. Any suggestion at all that we're supposed to disapprove? Remember how cool it was when Joshua made the walls of Jericho fall down? (See here, here, here . . . .) Moreover, it's definitely not descriptive to the extent that this is the Lord telling them to do it!

As for Jews not dancing, this is precisely my point: Jews and Muslims behave different today because of other things than their sacred text, like history, culture, the form of government they live under, their and their governments' political goals, and whatever else you feel like adding on to the list.

Finally, Mr. Aronstein quotes Khomeini as saying, "Duh, of course Islam says to conquer the whole world." (Rough paraphrase, click here and search for "Khomeini says".) You could probably find Christians saying quite similar things some centuries ago, and their text hasn't changed since then.

UPDATE 2: Reader John Jenkins writes:

Isn't this something of an exercise in moral equivalence? Passages of the Christian Bible talk about killing people. Passages in the Koran talk about killing people. Our enemies today are Muslims (which, of course, doesn't logically mean that all Muslims are our enemies). I personally could not care less what religion our enemies are, or if their justification is a disturbed reading of The Cat in the Hat. They want us dead, and the only way to deter them effectively is to kill them first. I see no need for tedious self-justification. All I see is a need for steel on target. We can discuss the fine points of comparative religion after we get rid of the people trying to kill us.

This is the sort of critical e-mail I like. I agree completely, except with the first sentence, since it seems to indicate there's some conflict between what I wrote and what he wrote. Also I disagree with the last sentence, because we should be able to discuss the fine points of comparative religion while getting rid of the people trying to kill us. It's the division of labor, man.

SUBUPDATE 2.1: Looks like this post (as well as Quare, etc.) pushed John Jenkins over the edge and made him start his own blog (woohoo!), where he clarifies that he didn't mean "moral equivalence" but rather "mental gymnastics." Fair enough. I still agree with him completely, especially since the charge of "mental gymnastics" seems more appropriate to those who actually argue about religion from eggs-a-Jesus of religious text, rather than to me, who am similarly taking issue with the use of religious text to make a point.

UPDATE 3: Reader Richard Aubrey writes:

I think you and others miss the point. The question before us is which is a religion of peace now. While any number of nations have claimed God is on their side, the number of wars started by Christians in order to conquer and kill deliberately and primarily for their idea of God is extremely low in the last five hundred years. . . . Even the Crusades, as Hanson has pointed out, were a limited counter-offensive against centuries of Muslim expansion. The Crusades were some time ago.

I agree completely, except with the first sentence, which seems to imply that there's some inconsistency between what I wrote and what he wrote. Mr. Aubrey is apparently channeling Cathy Young, whom I cite in the main text, but let me quote her now:

In fact, the question "Is Islam a religion of peace or a religion of violence?" is virtually meaningless. Like any major faith, Islam has many faces. . . . Mohammed was no bloodier a figure than Moses -- and the Bible contains plenty of language no less violent than the Koran’s. . . .
. . .
Throughout history, people professing to follow Christ have killed, tortured, and persecuted countless men and women (most of them also Christians) in the sincere belief that they were not only protecting good Christians from the danger of being seduced by heresy but saving their victims’ souls from eternal damnation. . . .
. . .
One legitimate counterpoint is that during the last 500 years mainstream Christianity has evolved to embrace tolerance and religious freedom. Lutheran churches, for instance, have formally repudiated Luther’s anti-Semitic writings, whereas equally repellent anti-Jewish rhetoric is standard fare in much of the Arab press today. But it is far from certain that this evolution was due to something inherent in Christian teachings rather than to other circumstances. . . .
. . .
Searching the texts of various faiths to discover which is the most inherently bellicose may be an interesting exercise, but what’s relevant is whether there is something in Islamic culture today that encourages the spread of violent fanaticism. Some scholars who reject attempts to demonize Islam itself nonetheless agree that Al Qaeda-style terrorism is not a fringe phenomenon but a reflection of a dangerous and pervasive brand of Islamic extremism. Why this extremism has emerged is a complicated question that includes a mix of historical, social, economic, and religious factors.

SUBUPDATE 3.1: Reader Gary Haubold similarly says, the worst passages of the Qu'ran are about as bad as the worst passages of the Bible, but today, it's Islam that has issues. Yup, agree completely.

UPDATE 4: William Aronstein responds that there's a difference -- God told the Jews to kill those particular people at that particular time; it wasn't a blanket permission. Reader Michael Hertzberg agrees: "[N]othing in the bible enjoins Jews in the present [tense] to violently conquer or kill or subjugate members of other faiths because they are of other faiths and therefore inferior." This doesn't seem like a particularly powerful distinction in this case. If God told the Jews once, he can tell the Jews again, and people who are inclined to repeat the historical experience (remember, this is a glorified, not a shameful, historical experience) can easily hear God's voice again. God granted the Jews "particularized" permission to kill all peoples living in the Promised Land; the pattern of permissions contains its own implicit blanket.

I think Justin Katz, on the other hand, has a potentially powerful argument:

  • Jews may have violent language in the Old Testament, but they're not proselytizing. "Each of the Biblical passages involves God fulfilling his promises to the Jews, His chosen people; none suggest that it is the Jews' duty to conquer other nations to glorify God."

  • Christians are proselytizing -- but they don't have violent language, and you can't saddle the Christians with the violent Jewish language because the Christian rejection of much of the Jewish stuff is intrinsic to the faith. (And while some Christians have historically, e.g. Crusades, used religious arguments to justify conquest, that was a Christianity unmoored from its sacred texts, and the Reformation was, in a sense, a return to the text, i.e., no more indulgences.)

  • Islam, on the other hand, is both proselytizing and has violent language.

I would just quibble with a couple of points there. First, and most importantly, as to the Jews. They have no commandment to conquer other peoples for the faith -- but they do have a specific promise of specific land, and the analog of what Muslims would do to the infidel is what Jews could do to maintain their occupation of the Promised Land. If there were a violent Jewish religious movement these days to occupy the whole Promised Land (and I suppose some would claim there in fact is one), it would be oh so easy to look at their sacred text and say, "Figures."

Second, as to the Christians. Maybe it's true that "true Christianity" isn't saddled with anything bad from Judaism, and I can't find any "smoking gun texts" in Christianity (but then again, I haven't looked so hard), but it's still problematic that Christians have the whole Old Testament and clearly don't reject all of it. If the New Testament says love, love, love, but you're still reading heroic stories about conquest and death, which aren't specifically repudiated, the messages are really mixed. What's the true textualist interpretation, if you don't know precisely which texts are still accepted and which are repudiated? There have been enough Christian conquerors and terrorists since the Reformation -- colonizers, slaveholders, etc. (reader Troy Loney points to abortion "terrorists" but I think they're in a different category) -- that I'm not sure whether "textualism = less violence" is true.




AAUP AND LYNNE STEWART: Reader Matt Bower writes that he e-mailed the American Association of University Professors to ask them their views on the Lynne Stewart/Stanford matter; here is the response he got back:
In reply to your e-mail about the Stanford Law School and Lynne Stewart, our position is that, based on the available information, there appears to be no issue for us to address.
This further reinforces my initial belief that the e-mail criticizing Dean Sullivan (see a few posts down) did not come from the AAUP itself, despite the e-mail's own claims.

Friday, November 15, 2002


THE FEDERALIST SOCIETY: According to an AP story,
Erwin Chemerinsky, a liberal University of Southern California law professor, said Federalist Society members claim it's an open organization but at many events "there's not a black face in the room" and there's an atmosphere of partisanship.
Well, we are an open organization -- we welcome anyone who wants to join, or just to attend events. As it happens, most members are conservatives and libertarians, and tend to vote Republican; liberals and Democrats are welcome to join, and of course we routinely invite them to speak at Federalist events. But, it's true, that most of the audience at any event will sympathize with the Republicans (and most of the remainder will prefer the Libertarians to the Democrats). How exactly does that keep us from being "open"?

     And another thing: I don't judge the merits or the openness of an organization by the number of blacks it has, or the number of whites, Hispanics, Asians, or American Indians, just as I don't judge the merits of an individual by whether he's black, white, Hispanic, Asian, or American Indian. We're open to all; the people who join us are generally conservative or libertarian; blacks in America are indeed less likely to be conservative or libertarian than others; but so what? Judge us by our ideas, and by our willingness to provide a rich, many-sided debate on our ideas, and not by the skin color of those people who hold or listen to the ideas.


PROF. MICHAEL MCCONNELL CONFIRMED BY VOICE VOTE. I am just delighted; he will serve with great distinction, and be thought of as one of the most brilliant appellate judges in the country.




LILEKS ON THE "SELF-PORTRAIT OF A MARTYR" is as good as InstaPundit says it is. The pinpoint link doesn't seem to work right, so you might have to scroll down to near the very bottom of the page to see this.


"WHY DEMOCRATS CAN'T THINK STRAIGHT ABOUT NATIONAL SECURITY": A great piece in the Washington Monthly, written by a Democrat and for Democrats. (Thanks to InstaPundit for the link.)


A THOUGHT EXPERIMENT: Imagine the following scenario. A professor at Stanford Law School invites a prominent lawyer who specializes in defending anti-abortion terrorists (let's call him Stuart Linn) to be a Visiting Public Interest Mentor, to give a talk, mentor students, and receive an honorarium. (By the way, just to be clear, by "anti-abortion terrorists" I mean people who try to kill or injure abortion providers; I believe they are indeed domestic terrorists. Many abortion opponents strongly oppose such behavior, and I use the term "anti-abortion terrorists" precisely to distinguish the violent fringe from the peaceful majority.) As it happens, Linn is under indictment for supposedly using his position as a defense lawyer to help an incarcerated leader of a terrorist conspiracy to communicate with his troops. The person inviting Linn thinks that the government is wrong, and that Linn is innocent.

     Linn, it turns out, has also said in the past that "I believe in violence directed at the institutions which perpetuate the murder of unborn children, and at the people who are the appointed guardians of those institutions, and accompanied by popular support." People protest the selection of Linn as Mentor; yes, he's a public interest lawyer, he hasn't been convicted of the crime for which he's indicted, he has the constitutional right to express those views, and some praiseworthy people have in the past supported violence against other institutions and people (say, against the Nazis, or against slave regimes). But, the critics say, Linn's positions are wrong and dishonorable (though some advocacy of violence in some circumstances may be honorable). And, they argue, Linn's being under indictment for misconduct in his capacity as a lawyer also cuts against the propriety of inviting him to mentor law students.

     The Dean agrees with the critics, and withdraws the selection of Linn as a mentor, though Linn of course is allowed to give a speech on the same footing as any other potential speaker. Was the Dean right? Or has she improperly interfered with "academic freedom" or "the right to mentor"?

     I think the Dean in this hypothetical would have acted perfectly properly; and I suspect that many conservatives, including many who support peaceful pro-life positions, would agree. And I think the Dean's actions in the Lynne Stewart case are morally identical to her actions in this hypothetical.


DEAR VOLOKH: I cannot for a moment claim any credentials as a potential advice columnist -- but, hey, that's never stopped me! And as I understand it, many potential advice columnists can't claim them, either. So here's an item from Dear Prudence (Slate) that struck me today:
Dear Prudence,
I live in a small town. A year ago, my husband committed suicide. I have two small children, and the woman I work with became close friends with me, and now we do almost everything together. She has been a dear companion and friend during the worst time of my life. She has never married and cares for her ailing sister, who lives with her. She is like a mother to my kids. The narrow-minded people in this town have decided that we are gay. Even my family has bought into this idea ... if everyone suspects it, it must be true! We have been discriminated against and ostracized from community activities as a result, and I am afraid that it will someday affect my children. Nothing could be further from the truth. We are not lovers and not even close to being gay. We are just good, dear friends who spend a lot of happy time together. How do I fight this, disrepute it, or change people's minds?

—Sadly Wondering

Dear Sad,
What a shame that judgmental people can cause such heartache. Prudie thinks it's wonderful that you have such a friendship and that it came to you at a most trying time in your life. As for outsiders' erroneous inferences, there is never a way to dispute their conclusions or change their minds, so forget about that. It sounds to Prudie as though you live in a very small town, and moving to a more metropolitan area seems out of the question because of your friend's sister—but it is something you might consider if at all possible. And if you are thought to be two lesbian ladies, so be it. Should this become an issue for your children, that will be the time to have a serious discussion about small-mindedness, tolerance, sexuality, and misperceptions. If yours is a happy home with this woman's participation, that's what counts.

—Prudie, acceptingly
I wonder whether the generally quite sharp Prudence might have missed the boat here, perhaps because her outrage over the nasty neighbors has gotten the way of her practical good sense.

     Sad, I assume, has friends in town. These friends may know about her sexual preferences, and in any event they will trust her if she tells them. A casual "By the way, I heard the strangest rumor yesterday -- that Mary and I are supposedly lesbians! Those silly people, where ever do they dream up ridiculous stories like that; darling, of course you must know that this is utter nonsense. No big deal, of course, really more amusing than anything else; and yet I am a bit bothered, since maybe the children will hear of it, and be worried or even be shunned by some of their classmates." will likely make it pretty clear to the friends that they should do what they can to squelch the rumors. If the friends don't get the message, a more direct request to help dispel the rumors should do the trick.

     This will not completely eliminate the suspicion, but it might discourage people from ostracizing Sad (unless they have it in for her for other reasons). Same-sex friendships are pretty common, and lesbianism is pretty unusual; those baseline facts, coupled with mutual friends setting the record straight, should go a long way to diminishing the rumor.

     It is, of course, too bad that such countermeasures should be necessary. In a perfect world, people wouldn't spread false rumors, and wouldn't ostracize people even if they really are lesbians. And I realize that the countermeasures don't always work. But it seems to me that our desire for a better world, and our annoyance at the world's not being that good, shouldn't keep us from recognizing (and recommending) the imperfect but promising pragmatic solutions that this imperfect world of ours does provide.

     -- Eugene, unqualifiedly


COMMUNISM VS. CAPITALISM -- the debate, amazingly, still continues (in some circles). InstaPundit quotes a great story, from Sofia Sideshow, a Bulgaria-based blog.


STANFORD DAILY ON THE LYNNE STEWART MATTER. A good deal of new reporting there, including the Lynne Stewart statement that Dean Sullivan referred to her in her un-invitation:
I don’t believe in anarchist violence but in directed violence. That would be violence directed at the institutions which perpetuate capitalism, racism and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support.
Reinforces my support of the Dean's decision. People have a constitutional right to support violence against American institutions and American people (just like they have a constitutional right to support the moral propriety of, say, violence against abortion clinics and abortion providers). But Stanford ought not be honoring them, or appointing them as mentors to law students, who will soon be officers of the court, pledged to nonviolent solutions to supposed domestic problems. Oh, and here's a line from a student critical of the Dean's position:
“We’re a norm-setting institution, and whatever distinction you make between right to speak and right to mentor gets lost,” [Shahid] Buttar said. “And to make that sort of a statement is really dangerous.”
Two questions:
  1. Wouldn't Stanford Law School be precisely the right institution to make clear to the public the distinction between allowing someone to speak, on the same footing as others and honoring them by giving them special titles and special distinctions? That, I think, would help support about the right norm, rather than one of two wrong norms (either "advocates of violent revolution, who are under federal indictment for supposedly helping terrorists, should both be honored and be allowed to speak" or "these people should be neither honored nor be allowed to speak").

  2. Where exactly does Mr. Buttar find the "right to mentor" (i.e., the right to get a special honor, position, and honorarium from Stanford Law School)?

Thursday, November 14, 2002


ASSOCIATION OF AMERICAN UNIVERSITY PROFESSORS (?) ON LYNNE STEWART AND STANFORD LAW SCHOOL: A reader forwarded to me an e-mail that criticized Stanford Law School's decision not to have Lynne Stewart be a Public Interest Mentor. The e-mail (reproduced below) purports to be the view of the American Association of University Professors, but I can't vouch for that; among other things, note the casual reference to "reactionary attitudes," and the assertions about the rights and wrongs of the criminal case against Stewart -- I had not known that the AAUP is quite that quick to use left-wing jargon, or to take official positions on the limits of the lawyer-client relationship, or the propriety of surveillance of various lawyer-client communications (quite complex legal questions). If the e-mail does represented the AAUP's views, then this would make me particularly troubled. (UPDATE: The reader just forwarded me another e-mail that says that the material was sent "by an attorney with the AAUP, but was drafted by a faculty member at Stanford, who asked that it be circulated widely." This confirms my initial skepticism that the message was authorized by the AAUP, and makes me happier about the AAUP; nonetheless, the original e-mail seems quite authentic, and is apparently being circulated as a means of trying to arouse criticism of Stanford.)

     I have to go to bed, so I can't do the matter justice -- but here are a few observations:
  1. The Dean withdrew an honor that the law school was offering to convey. Stewart was still perfectly free to speak; she just wouldn't be lauded by Stanford as a Mentor (and wouldn't get the extra money that comes with the Mentorship). Hard to see that as much "pressure placed on dissenting voices."

  2. Note the casual assertion of moral equivalence: Advocating violent revolution against the American government is the same as Warren Christopher defending certain American foreign policy actions or Nelson Mandela advocating the positions that he took in South Africa. I find it quite easy to draw lines between Stewart and these people (among other things, Stewart was invited to be a lawyer mentoring law students, and advocacy of illegal violence against the very government that the lawyers will be asked to help defend, as officers of the court, seems different than the advocacy of various foreign policy actions); and it seems to me that when an institution is conferring honors on people, it should draw these lines. Would the authors of the letter below also think that, say, David Duke should be a Visiting Mentor? No; he should be allowed to speak, if a group invites him, but he doesn't deserve honoring. Who should and who shouldn't be honored requires sound judgment, the sort of judgment that distinguishes those who advocate violent revolution against the U.S. and those who advocated revolution against apartheid South Africa.

  3. The statement below makes much of the Dean deciding to withdraw the invitation without enough "transparency" or "public comments." But unless I'm mistaken, the invitation itself wasn't made as a result of a transparent process, with public comments. Such invitations almost never are made that way. A faculty member who's in charge of some program makes the decision, with no transparency and public input. And when the decision is that Stanford Law School is to honor someone, then it seems to me that the Dean is entitled to the final say as to whether the Law School really should honor her -- again, with no need for any more public input than the original decision involved.

  4. Finally, if you agree with me, you might consider an e-mail to the Dean and the President (their e-mail addresses were given in the message reproduced below) expressing your agreement. This would be especially helpful if you are a faculty member at a university or college, no matter what department, or in what country.
Here's what the e-mail says:
What follows is material prepared by the Association of American University Professors concerning recent actions taken by the Stanford Law School. I should note that the Dean of Stanford Law School, Kathleen Sullivan, is ordinarily an eloquent defender of liberty and freedom of speech.

A controversy recently erupted at Stanford Law School, where a diverse coalition of students concerned about civil liberties and academic freedom need your help.

Lynne Stewart was invited this spring to serve as the law school's David W. Mills Public Interest Mentor on November 11. Lynne is among the country's most prominent criminal defense attorneys representing politically unpopular clients. Her clients have included anti-apartheid activists, Black Panthers, leftwing radicals, and more recently, accused terrorists. She is also the first lawyer in the country to be indicted by the Ashcroft Department of Justice based on illegal surveillance of confidential attorney-client communications.

The week before her visit, several students mobilized a nationwide effort to pressure the law school and university administration to renounce its recognition of Ms. Stewart, seizing upon her unrelated statements in the New York Times appearing to endorse the use of "directed violence . . . against the institutions of capitalism." Within days, the law school publicly rescinded its prior invitation.

While we object to the Stanford administration's decision, we do NOT endorse Ms. Stewart's views about political violence. These views played no role in her invitation, nor was it a planned point of discussion before her visit was thrust into controversy.

The law school announced that it revoked Lynne's invitation because she has historically claimed that political violence can be legitimate. However, the University and law school have a history of honoring figures who actively advocate state-sponsored violence. Last fall, the law school honored Warren Christopher, despite his explicit endorsement of political assassination as a legitimate tool of statecraft. Just last month, the law school conferred an award upon FBI Director Robert Mueller, whose agency has been castigated by Human Rights Watch for widespread abuses since September 11th. Moreover, the principle would preclude the university from inviting figures such as Nelson Mandela or Donald Rumsfeld.

We have three particular concerns:

- The administration's decision appears to publicly reinforce Ashcroft's attack on civil liberties, including the right of assistance to counsel

- The lack of transparency in Stanford's decision-making affecting academic discourse

- The increasing pressure placed on dissenting political voices

We must protect the open discussion of controversial ideas at universities, especially during times of national crisis like our own. Ms. Stewart's indictment stifles the defense of politically vulnerable clients. The law school's decision now compounds that effect, by discrediting her professional role as a defense attorney based on her political perspectives. As a leading academic institution, Stanford Law School enjoys tremendous credibility, which it compromised by acting before soliciting public comments.

Stanford Law School set a dangerous precedent in permitting political agendas to trump academic freedom. Worse yet, Ms. Stewart was scrutinized on account of her SPEECH. As during the McCarthy era, this decision reflects a widespread fear of entertaining dissenting voices in an increasingly vitriolic climate. We have today once again sounded the alarm that dissent in America is unwelcome. The media has already restricted the terms of debate. The academy now follows suit.

Please help us counter the campaign against unpopular voices by expressing your own alarm over the university's willingness to sacrifice its academic integrity. Call on Dean Sullivan and University President John Hennessy to defend our academic institutions and the right of students to explore all points of view.

Stanford Law School Dean Kathleen Sullivan (650) 723-4455
Stanford University President John Hennessy (650) 723-2481

See below for suggested e-mail text:

Dear Stanford Administrators,

Your recent decision to rescind Lynne Stewart's invitation to serve as David W. Mills Public Interest Mentor is alarming. Ms. Stewart stands the center of the ongoing controversy over the appropriate balance of security and liberty in America. As such, Stanford's decision to restrict her availability to students raises grave concerns over the academy's vulnerability to reactionary attitudes.

In addition, the manner in which Ms. Stewart's invitation was revoked is itself problematic. Public interest programs must be governed by transparent decision-making structures in order to ensure impartiality and freedom from intellectual coercion. Students must also enjoy a correlative right of access to mentors of their choice.

I implore you to recognize your roles as guardians of a public trust. As administrators of a prestigious academic institution, you enjoy tremendous influence. The vitality of our national debate demands that you wield it responsibly.


COUNCILWOMAN HAHN RECANTS on the showing of Tora! Tora! Tora! (see the post from a couple of days ago) -- though her new comments don't make her look much better than her original ones. (Thanks to InstaPundit for the pointer.)


AT THE FEDERALIST SOCIETY CONVENTION: It's the 20th anniversary of the group, and it's quite an event. I'm really happy to be here and to see my old friends, from clerking and after; but the panels look quite good, too, and the Feds are as always careful to make sure that both sides are presented. If you want to get a sense of the schedule, here it is.


The Israeli daily Ha'aretz just published today (11/14/02) a fascinating interview with a group of young Palestinian fighters--members of terrorist groups linked with Yasser Arafat. The interview was conducted by the intrepid reporter Amira Hass, who is well-known for her sympathy for the Palestinian cause.

Part of the interview jumped out at me:

If you are motivated by revenge, they were asked, why does the killing of an armed man elicit a far stronger response than the killing of a child by a tank or a semiautomatic rifle?

They appear surprised by the question and find it difficult to formulate a suitable response.

Finally, the youngest member of the group says: "When one of us is killed, we lose a fighter. That is a far greater loss to us than the life of a child, as painful as it may be."

And this speaks volumes about the relative values of the Palestinian and Israeli war efforts. Israelis get the angriest at suicide bombings--premeditated murders of unarmed civilians. Palestinians, on the other hand, save their greatest rage for the killings of military figures, because a fighter's life is more "valuable." A Hamas spokesman famously declared that the Palestinians will win the war because the Israelis love life more than death, whereas for the Palestinians it was just the opposite. For the Palestinians, the war effort means that life is cheap. This is why the sharpest Palestinian rhetoric has come in protest of "targeted killings"--precisely because military figures were targets. (And no, it's not about a liberation struggle--this philosophy that had no counterpart to the Haganah fighters in the Israeli War for Independence.)

One should not be surprised, then, at Israeli reluctance to live side-by-side with such a nation. Palestinians undoubtedly have the right to national self-determination--as do the Jews--but Israel's skepticism of any Palestinian state takes on new meaning in this ideological context. After all, if life is cheap, if fighters are more valuable than children, then who is to say that the new Palestinian state might not decide to carry on the conflict even after the occupation ends? This might mean tens of thousands of Palestinian civilans dead, but the fight is more important.

Most importantly, it also points to one reason why no Arab nation has come close to a liberal democracy yet. The entire idea of any individual rights framework is that life is NOT cheap, that there are some things that a state cannot do to its people even for the most important of political agendas. But if people can be sacrificed for political goals adopted by leaders, then why should they have political power? Why should their rights stop any political agenda?

Until and unless this ideological structure ends, all talk of "reform", either in the Palestinian Authority or elsewhere, will remain just talk.


GOOD META-DICTIONARY: looks up a word in a big bunch of dictionaries -- very convenient (thanks to Bruce Wessel for the tip).

Wednesday, November 13, 2002


THE OTHER GEOGRAPHY PUZZLE: The most obscure countries contest is officially closed; the final results are:
  • Sao Tome and Principe in general (28 hits) (found by Ted Ruger).
  • Suriname as to continental countries (33 hits) (found by Curt Cutting).
  • Malawi in the over 1 million population category, and in the hits per million category (86 hits, population of 10.7 million).
Now you know, and knowing is half the battle.


MEGAN'S LAW: Dahlia Lithwick's coverage of today's Megan's Law arguments has the following item:
Justice Ruth Bader Ginsburg's theme today will be that this law constitutes "punishment" because it doesn't tell "the whole truth" about the offenders. "There is no escape," she says. "We can prove with expert testimony that we're cured" but that information will not be posted. "They're locked into this for life."
Well, no. We can't prove with expert testimony that we're cured.

     The whole problem is that no-one knows for sure whether a rapist or child molester (or any other criminal) is "cured" and won't reoffend. We just guess as best we can. The premise of Megan's Laws is that it's better for citizens to make their own guesses, based on the information about the person's past conviction -- public record information -- rather than for some "experts" to make their guesses, and deny the public the information if they guess (perhaps quite wrongly) that the criminal has been "cured." Justice Scalia, I think, has the better point here:
"Maybe the people of Connecticut don't trust those dangerousness hearings. They don't trust the guesses of psychologists."
Why should they? And, more importantly for these cases, why does the Constitution require them to, rather than letting the public know the public record information about people who have been duly convicted?

     By the way, blog readers may have noticed in the past that I sometimes (though not this time) disagree quite strenuously with Lithwick -- but she's often very insightful, and always a joy to read.


A SIGNAL EVENT: InstaPundit writes, citing a UPI story (I add the emphasis):
At a think-tank meeting last week, when a European diplomat asked rather patronizingly what all these American weapons were actually for, a renowned liberal academic simply quoted Kipling's line about "Making mock of uniforms that guard you while you sleep." . . .
When liberal academics start quoting Kipling, the world has changed.


GENNIFER FLOWERS VS. JAMES CARVILLE, HILLARY CLINTON, GEORGE STEPHANOPOULOS: "Long after the public spotlight has moved on in search of fresh intrigue, the lawyers remain." The Ninth Circuit released a decision yesterday on a preliminary stage of the litigation. The first part is about an interesting (well, to some people) statute of limitations issue, and indirectly about statutory construction and, believe it or not, the Privileges or Immunities Clause; read all about the "last-antecedent rule" and the "fugitive comma." The second is about some more substantive questions -- much worth reading (and readable). The third discusses the distinction between the torts of defamation and false light invasion of privacy.

     By the way, to preempt the usual speculations about the politics of the judges: The authoring judge was appointed by Reagan (he's actually my former boss, Judge Alex Kozinski), but the other two judges on the panel were a Nixon appointee (Wallace) and a Clinton appointee (Paez); both joined the panel opinion in full, and wrote no separate opinions.


THE MICHAEL MCCONNELL NOMINATION: Good point by John Rosenberg about the dueling letters in this case. For the record, I should say that I know McConnell well, respect him deeply, and think he'll make a first-rate judge, even though I don't fully agree with him on constitutional questions.


HACKING FOR CHILD PORN VIOLATES FOURTH AMENDMENT: A federal court has held that an anonymous hacker from Istanbul, Turkey violated the Fourth Amendment when he used the subseven trojan horse to hack into the home PC of a man in Richmond, Virginia to find child pornography. The hacker claimed to have found child pornography on the home computers of 2,000 people, and just last year his tips had been used to identify and convict an Alabama man of child molestation. The court concluded that the hacker and the cops had established a cozy enough relationship that the hacker had become a state actor for Fourth Amendment purposes. I'm looking for the full opinion online, but in the meantime here's my summary and analysis of the case.

UPDATE: I still haven't found an online copy of the opinion, but I did find news reports shedding a bit more light on the case. I'm afraid it's quite disturbing. It turns out that the defendant was convicted of molesting a 4 year-old and a 6 year-old (read about the state case here), and sentenced to serve 90 years in prison. The hacker was the one who tipped off the police to the molestation: the child pornography that the hacker had discovered and sent to law enforcement were photos of the 6 year-old. Dear Lord.


Name at least thirteen European nations that have at one point governed parts of the Western Hemisphere (not including Greenland, Iceland, or any Viking colonies in the Americas); and for each country, name all the places that they have so governed, up to a maximum of three.
Many of you rose to the occasion, and even gave answers that I myself hadn't known about. Here is the updated list, based on my previous knowledge, the new information I learned from you, and some more research that I've done. Some of this will surprise you.

      Let's begin with the three obvious ones:

      1. England -- British Honduras (Belize), Guyana, the Falklands, and a few other places.

      2. Spain -- Mexico, Argentina, Florida, and many more.

      3. France -- Canada, Louisiana, Haiti, and others.

      Three more shouldn't be hard to get:

      4. Portugal -- Brazil, down to Uruguay.

      5. Holland -- Manhattan, Suriname, the Netherlands Antilles.

      6. Russia -- Alaska, Ft. Ross in Northern California.

      Now, two more that are pretty obscure:

      7. Sweden -- a mid-1600s colony mostly in Delaware and New Jersey ("New Sweden"), and St. Bartholomew in the Caribbean.

      8. Denmark -- the Danish West Indies, in what are now the U.S. Virgin Islands. (The Danish overseas empire is largely forgotten, but the Danes also governed some settlements in India, for a time the Nicobar Islands off the coast of Thailand, and some forts in what is now Ghana. The Austrians also laid claim to the Nicobar Islands, which is to my knowledge the entire extent of the Austrian overseas empire.)

      Now I had never heard of the Danish West Indies until last week (which is what prompted my asking the question) -- but here are two that I had learned about only from readers' responses:

      9. Courland, a grand duchy in what is now mostly Latvia; it was then answerable to the King of Poland, but it was essentially independent, and was a prominent naval power for a brief period in the mid-1600s. Courland had a settlement in Tobago. I am not making this up.

      10. The Knights of Malta owned St. Croix and St. Barthelemy for very brief spells during the mid-1600s, and apparently exercised sovereignty over them. The Knights might not qualify quite as a nation, but they did indeed govern Malta, and were apparently headquartered there.

      11. Ruritania, Lower Slobovia, and Elbonia all had settlements in . . . . OK, I am making this up, but Courland is 100% legit.

      11. Scotland had an ill-fated settlement in Darien (Panama) in the very late 1600s, and Nova Scotia was also a Scottish settlement; but by then, I don't think Scotland was truly independent, even though the Act of Union that officially joined the Parliaments of the countries wasn't enacted until 1707. I will therefore not claim Scotland here, though as we will see shortly, it will indeed appear as part of the answer.

      So we have 10, not counting Scotland -- how do we get to 13? Well, one definition of the Western Hemisphere is the Americas together with their adjoining islands; but another is simply the half of the globe that reaches west from longitude 0 to longitude 180. We can thus look at Oceania, and see

      11. Germany -- American Samoa (early 1900s).

      But wait! Longitude 0 doesn't go through the mid-Atlantic; it goes through Greenwich, England (hence Greenwich Mean Time). Considerable chunks of Europe, West Africa, and Antarctica are thus in the Western Hemisphere, so this lets us include

      12. Norway -- Jan Mayen Islands (west of Norway and north of Scotland), and a sector of Antarctica in the Western Hemisphere that Norway once claimed based on its Antarctic explorations in the early 1900s.

      13. Brandenburg, a duchy in what is now Germany, which had trading forts in West Africa, in what is now Ghana and Mauritania. Query whether Brandenburg's possessions should be included alongside Germany's, partly because Brandenburg, together with Prussia, formed the kernel of the nation of Germany (which of course wasn't fully formed until the 1860s) -- Brandenburg contained Berlin. I have seen hints that Brandenburg might have had some outposts in the Caribbean as well, but nothing that I could confirm.

      We can also add to Portugal's (4) list Portuguese Guinea and the Azores, to Sweden's (7) and Denmark's (8) lists forts in Ghana, to Courland's (9) an island on the Gambia River, and to Germany's the territory of New Swabia in Antarctica, which Germany claimed in the late 1930s (though I doubt that this qualifies as "government"). (Naturally, there's also lots to be added to English and French possessions, and some to Spanish, but they are already way over the three possessions that I asked for.)

      Now I hope that all this talk of obscure places in the North Atlantic, West Africa, and Antarctica has not distracted you from the other answers, which are of course:

      14. Ireland -- Ireland governs, well, Ireland, which is entirely in the Western Hemisphere.

      15. Italy, or rather a city-state in Italy that once got rather big for its britches -- Rome, whose empire extended to what is now Spain, Portugal, France, and England. (While we're at it, we can add France west of the 0th meridian to Germany's list.)

      16. Scotland, when it was independent, was itself partly in the Western Hemisphere, though I'm pretty sure that they didn't think of it as the Western Hemisphere in those days. This, of course, reveals an esthetic flaw in the problem, since there were lots of European nations west of the 0th meridian in the past, in parts of England, France, Spain, and other places. So the list really could be very long indeed.

      So there we have it -- some general knowledge (1-6, probably 7-8, 11 once you've gotten the trick), some highly esoteric knowledge (9-10), and a trick that yields 11-16.

      And now at your next cocktail party, you can stump everyone by asking about the little-known Latvian government of parts of the New World. Everyone, that is, who doesn't read The Volokh Conspiracy.

     Congratulations to Fred Simons, David Mecklenburg, and to Mike and Natalie Solent, and friends, who came closest to this list.


COOL DEFINITION -- "Grantarctica /n./ The cold, isolated place where scientists without funding dwell."


GERRYMANDERING: Mickey Kaus asks: "[I]sn't the real story here that there were only 11 toss-up races (out of 435), thanks mainly to gerrymandering?" I haven't been following the numbers, but if that's true, it's a pretty serious indictment of our current system (and I agree that the paucity of close races isn't entirely caused by gerrymandering, but to my knowledge gerrymandering is a very big part of the cause).


A SAD BUT INTERESTING PIECE on break-up letters, in Slate.


A PACK, NOT A HERD: Glenn Reynolds has a very good column on this subject.


A BIT MORE ABOUT LYNNE STEWART: Reader Matt Bower writes:
The frightening thing about Lynne Stewart's complaint ("It's the first time I've been censored in this way") is not that she doesn't understand the distinction between censorship and a purely private expression of opprobrium. It's that she's apparently gotten a pass for so long that didn't realize anyone might object to her views. What social circles must she run in?

Of course, it can't be that she didn't know her views offended anyone. More likely, her disappointment stems from the discovery that there's even a limit to what people who count -- such as liberal academics -- are willing to tolerate.
Good point.


BERKELEY PRESCHOOLERS AGAINST THE WAR: A colleague of mine pointed me to an article in the Berkeley conservative students' newspaper that describes how some alternative preschools (to my knowledge, all private) sent their kids to speak out against the war. The kids, naturally, have no idea what this is all about, and it seems that the conservative students are somewhat upset by this; the subtitle is "allegation of exploitation arise" (though query whether this is just a subtle parody of the Left's tendency to call things "exploitation").

     I'm not particularly annoyed by this myself. This isn't the best way of teaching kids critical thinking, but I take it that the parents think that it's a good way of teaching kids a certain belief system, a belief system that includes the need to proselytize that belief system. Jehovah's Witnesses, I believe, do it as to the Bible; these people do it as to their own religion. I doubt that I'd have my own (hypothetical) kids spread my own view of the political gospel this way, but I don't feel strongly about this. How much kids should be taught critical thinking at any particular age, and how much they should be taught Received Wisdom at that age, is a complex question which to the best of my limited knowledge has not been definitively solved.

     The real mistake would be if observers were actually persuaded that this represents anything other than just the educational method of the parents, and of the schools that the parents chose. It's rational for the parents to teach their own kids a message, and the importance of spreading that message, by getting their kids to speak that message. It's not rational for listeners to be persuaded.


ANOTHER TAKE ON THE LIBRARY CYBERPORN CASE: From a humorous Supreme Court newsletter put out by Mark Stancil of Baker & Botts:
The intersection of First Amendment and Spending Clause suggests we are in for another spin on Justice Kennedy's Wild Ride, a la OT 2000's Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001). Hang on to your pocket Constitutions, boys and girls, this one's gonna be bumpy.
The Velazquez reference is quite serious; Velazquez, Rosenberger v. Rector, NEA v. Finley, Rust v. Sullivan, and Pico v. Board of Ed. are the precedents to look at here, though none is squarely on point.


I AM PROUD TO HAVE KHALED ABOU EL FADL AS A COLLEAGUE: Check out the article in The New Republic about the travails of this Islamic law scholar. Inspiring and frightening.

Tuesday, November 12, 2002


"MARXISTS' APARTMENT A MICROCOSM OF WHY MARXISM DOESN'T WORK." From The Onion, naturally (thanks to freeside for the pointer).


CODA TO THE STORY ABOUT THE PROFESSOR INSULTING THE CADET: I was just reminded of the incident by the Journal's editorial on the subject (hey, for those who read blogs, the story is days old), and that in turn reminded me of Kipling's Tommy (not the Who version). Probably old hat to most of you, but some at least have forgotten it:
Yes, makin' mock o' uniforms that guard you while you sleep
Is cheaper than them uniforms, an' they're starvation cheap.
The last clause is thankfully no longer quite true, but the rest is still right.


It shall be unlawful to discharge any firearm, firework or explosive, set fire to any combustible, make any harangue or oration, or utter loud, threatening, or abusive language in the Library of Congress buildings or grounds.
Interesting juxtaposition of prohibited conduct.

UPDATE: My friend Jack Schaedel asks: "if someone has 'set fire to any combustible' in the Library of Congress, is it still forbidden to 'utter loud language' such as 'fire!' under 2 USC sec 167d? If someone discharges a firearm therein, may one then utter 'ouch' in a loud voice if s/he is hit? I need to know this ahead of time in case I am in the LoC anytime soon." Very good questions.


NOT CENSORSHIP, BUT FOLLY: From the Daily Breeze, a local paper here in the L.A. area (link via InstaPundit):
It was going to be a night to remember. Ushers dressed in World War II military uniforms, vintage cars pulling up to the curb, Pearl Harbor survivors and a recently restored 1940s military searchlight would be on hand Dec. 7 to greet the crowds at a special anniversary showing of “Tora! Tora! Tora!” at San Pedro’s historic Warner Grand Theatre.

The 1970 film — a joint American and Japanese production — is considered one of the most accurate depictions of events leading up to the 1941 Japanese bombing of Pearl Harbor. Expected to attract hundreds, the showing on the 61st anniversary of the attack was to serve as a fund-raiser for the Fort MacArthur Military Museum in San Pedro.

But now the show is off.

Why? Veterans and museum members say it’s simply a case of political correctness run amok.

While there was a previous theater booking for Dec. 7, according to theater manager Lee Sweet of the city’s Department of Cultural Affairs, which manages the facility, Los Angeles City Councilwoman Janice Hahn concluded that the event would have been insensitive to the Japanese-American community. . . .
I say this isn't censorship, because it seems to me that the city has a right to decline to participate in events of which it disapproves; and the theater has not, to my knowledge, been made generally available to the public on an indiscriminate basis, which would make it a "designated public forum" in which the government can no longer discriminate based on viewpoint.

     But it is folly. Pearl Harbor happened. Japan did attack the United States. To my knowledge, Tora! Tora! Tora! is a pretty good and fair movie about the event. Pearl Harbor is a historical event that deserves commemoration.

     And more importantly, the main reason that many people now regret the internment of American citizens of Japanese extraction during World War II -- there are other reasons, but this is the main one -- is that the Japanese-American community was extremely loyal to the U.S. They were on our side, not the side of the Japanese, because they were us, not the Japanese. The attack on America was an attack on their country. Suggesting that recalling the events of that day is somehow "insensitive to the Japanese-American community" is an insult to that very community.


THE VAST JEWISH CONSPIRACY: One of the things we Jews like to do is count other Jews in interesting places. (This is one thing we have in common with anti-Semites, coupled with the related ability to figure out who's Jewish and who's not.) We generally try to keep this a bit quiet, more as a matter of good manners than anything else, but, hey, we're all friends here, no?

     So here's a list that I got of Jews in the new Congress. There's no assurance of accuracy, but no need to submit items about how so-and-so is actually only part Jewish, or converted, or what have you. General rule of thumb: If you're cool enough, we'll claim you on the slightest pretext.

U.S. SENATE [11]
Barbara Boxer (D-Calif.)
Dianne Feinstein (D-Calif.)
Joseph Lieberman (D-Conn.)
Carl Levin (D-Mich.)
Norm Coleman (R-Minn.)
Frank Lautenberg (D-N.J.)
Charles Schumer (D-N.Y.)
Ron Wyden (D-Ore.)
Arlen Specter (R-Pa.)
Russell Feingold (D-Wisc.)
Herb Kohl (D-Wisc.)

Howard Berman (D-Calif.)
Susan Davis (D-Calif.)
Bob Filner (D-Calif.)
Jane Harman (D-Calif.)
Tom Lantos (D-Calif.)
Adam Schiff (D-Calif.)
Brad Sherman (D-Calif.)
Henry Waxman (D-Calif.)
Peter Deutsch (D-Fla.)
Robert Wexler (D-Fla.)
Rahm Emanuel (D-Ill.)
Jan Schakowsky (D-Ill.)
Ben Cardin (D-Md.)
Barney Frank (D-Mass.)
Sander Levin (D-Mich.)
Shelley Berkley (D-Nev.)
Steve Rothman (D-N.J.)
Gary Ackerman (D-N.Y.)
Eliot Engel (D-N.Y.)
Steve Israel (D-N.Y.)
Nita Lowey (D-N.Y.)
Jerry Nadler (D-N.Y.)
Anthony Weiner (D-N.Y.)
Martin Frost (D-Texas)
Eric Cantor (R-Va.)
Bernard Sanders (Ind-Vt.)


Is Harvard really free from First Amendment strictures on free speech? It may be privately endowed, but they accept an awful lot of federal money (research grants, student aid, etc.) Federal funding is used to club people over the head all the time (drinking age 21, title IX, etc.).
     The First Amendment applies only when the government makes the decisions -- it generally does not apply when the government merely funds a private program. The Court squarely held this in Rendell-Baker v. Kohn (1982).

     Congress may by statute impose many conditions on the use of federal funds -- that's what was done with Title VI and Title IX (which generally bar recipients of federal funds from discriminating based on race and sex) and with the drinking age. Congress thus probably could mandate that no university which receives federal funds may restrict student speech (I say "probably" because there are some twists which I set aside for now). But Congress hasn't enacted such a statute, and it is of course under no obligation to do so.


HARVARD BUSINESS SCHOOL AND ITS STUDENT NEWSPAPER: InstaPundit has a great item on the Harvard Business School going after its student newspaper editor for publishing a cartoon that insulted HBS's career services department. Harvard is a private university, and is thus not bound by the First Amendment; and I think the school had a right to publicly and privately chastise the editor for the name-calling. But it sounds like Harvard didn't just express its agreement, but threatened administrative sanctions against the editor, which I think is out of place at an academic institution.

     The funny thing is that, at least based on my experience of universities and graduate schools, counter-speech is a highly effective reaction to offensive speech (much more so than in public debate generally). Students generally respect the administration, especially when the administration says sensible things -- "name-calling is juvenile," "how do you think this makes the career services staff feel?," "do you think this is good training for your future life in the business world?," "the people around you will be potential future business partners and employers; do you want them to remember you as rude, juvenile, and irresponsible?" But, no, that's somehow not good enough for the administration, which (assuming, of course, that the Harvard Crimson's account is correct) seems to insist on threatening administrative sanctions where moral leadership would work much better.


MEGAN'S LAW CASES: These cases will be argued Wednesday; here are my predictions:

     Bottom line: The Court will uphold Megan's Laws both against the due process challenge (that's the Second Circuit case) and the Ex Post Facto Clause challenge (the Ninth Circuit case). Confidence level: Very high.

     Vote: I'd guess 7-2 for each. Confidence level: Pretty high, if you give me a 2-Justice margin of error! Well, even if you don't, I think it's the likeliest result -- I think two of the liberals will find something wrong on both theories, though I'm not sure which two.

     Lineup: This is the toughest one -- I'm sure that Rehnquist, O'Connor, Scalia, Kennedy, and Thomas will vote to uphold both; I suspect that the other two votes to uphold, in both cases, will be Souter and Ginsburg, with Stevens and Breyer being the dissents. Confidence level: Fairly low; this is just a wild guess.

     We'll see soon enough how I do! In the meantime, here are two posts of mine on why I think Megan's Law doesn't violate due process or "the right to privacy": the original post and a follow-up. Sorry, nothing on the Ex Post Facto clause issue, which is somewhat different.


HARVARD TALK BY THE "[ISRAELI SETTLERS] SHOULD BE SHOT DEAD" POET CANCELED: Jacob Levy reports that the Harvard English Department has posted the following to its Web site (link at Jacob Levy's blog):
By mutual consent of the poet and the English Department, the Morris Gray poetry reading by Tom Paulin, originally scheduled for Thursday, November 14th, will not take place. The English Department sincerely regret the widespread consternation that has arisen as a result of this invitation, which had been originally decided on last winter solely on the basis of Mr. Paulin's lifetime accomplishments as a poet.
I'm glad to hear that Harvard did the right thing, though I was sorry that it originally did the wrong thing -- but I'm also glad to see the description of the reaction as "widespread consternation," which somehow sounds so very Ivy . . . .


AN ODD DEFINITION OF CENSORSHIP: Lynne Stewart, who is under indictment for allegedly helping her terrorist client communicate with his terrorist subordinates, and who has spoken out defending the actions of Stalin and Mao, complains that she's been censored. Why? After she was originally invited by a Stanford Law School faculty member to be a Visiting Mentor, the Dean of the law school concluded that she shouldn't be given the Mentor title, though she could of course still come to speak:
An invitation was issued to Lynne Stewart by the Director of Public Interest Programs at Stanford Law School to serve as a David W. Mills Public Interest Mentor without full consultation with faculty and senior administrators. Stanford Law School welcomes discussion and promotes rigorous debate on difficult and controversial issues. The student-sponsored "Shaking the Foundations" conference being held this weekend is an appropriate forum for Ms. Stewart and others with various points of view to speak on many issues, including the ethical limits of client representation. However, it has come to my attention that Ms. Stewart has expressed sympathy for and tacit endorsement of the use of directed violence to achieve social change. Therefore I have decided that it is not appropriate to confer the title of David W. Mills Public Interest Mentor to Ms. Stewart, and have today issued a letter to Ms. Stewart rescinding the offer to serve in the capacity of mentor to our students during her visit.
Now, Lynne Stewart's response:
[Stewart] said she'd spend today as a volunteer mentor in a student-organized program. . . .

"It's the first time I've been censored in this way," said Stewart, who has spoken to numerous groups since her indictment.
     Ms. Stewart, when Stalin and Mao killed, imprisoned, and otherwise persecuted their opponents -- something about which you said, "I dont have any problem with Mao or Stalin or the Vietnamese leaders or certainly Fidel locking up people they see as dangerous" -- that's censorship.

     When a law school refuses to give you a special honor, because it thinks you're dishonorable, that's not censorship.

     (Thanks to reader Jim Herd for pointing me to the latest story on this subject.)


THANKS TO ISRAPUNDIT for naming us one of their sites of the week (alongside PejmanPundit, VodkaPundit, and Spleenville).


20,000 GUN LAWS: The gun control debate is unfortunately full of erroneous, misleading, or empty factoids; one from the pro-gun-rights side is that there are already "over 20,000 gun laws" in the U.S. This is sometimes elaborated to statements such as "Considering federal, state, and local statutes, the United States has more than 20,000 gun laws, which surpasses the firearms legislation of any other country" (I quote this from a law review article).

     Does anyone know the origin of this factoid, and how the 20,000 number was arrived at? My suspicion is that, to the extent that it's even possibly accurate, it counts every statutory section as a separate "law," which isn't the normal definition of "law," and is a pretty pointless way of counting things. (The Copyright Act, for instance, would thus amount to 160 "laws," a strange conclusion.) But even if you count each section, I'm not sure 20,000 is the right number: A quick WESTLAW search through state and federal laws found about 6500 statutory sections that mentioned "gun", "firearm", "handgun", "rifle", or "shotgun," and while it's possible that there are 13,500 more local laws on this, I'm a bit skeptical (and how would one figure it out?).

     And comparing the number of gun laws in the U.S. to the number of gun laws in other countries would be unsound even if you could somehow come up with a clear definition of what "law" is: Many countries have fewer major political subdivisions than the U.S. does (consider, for instance, Australia and Canada), or give their political subdivisions much less power (consider England and France, which are basically unitary governments, where power is more centralized than in the U.S.). The large number of U.S. gun laws may be largely an artifact of the existence of 50 states, and the devolution of considerable power to the municipalities. They say little about the number of gun laws that a typical person is actually subject to at any one time, which would be a more relevant number.

     But finally, let's just step back for a moment from these technical items, and look at the big picture -- what's the point of counting the number of laws in any event? Would gun rights supporters prefer a regime of 20,000 gun laws, or just one federal gun law -- "no person may possess a gun without the permission of the U.S. Department of Justice"? Laws, like pieces of evidence, should be weighed, not counted.

     Regular readers of this blog know that I often get annoyed at false, misleading, or meaningless factoids put out by the pro-gun-control forces. Similarly bad factoids from the pro-gun-rights side bug me just as much. But in any case, I would like to know where the factoid originally came from, and how it was arrived at -- if you know the answer to this, please e-mail me. (Please pass along only specific leads; I already have a few general speculations that I'll be trying to track down.)


SUPREME COURT AGREES TO HEAR THE CHILD INTERNET PROTECTION ACT CASE: The question here is whether the federal government may require public libraries to filter Internet access, when that access is funded by federal dollars. The lower court said that this was unconstitutional, and that it would even be unconstitutional for public libraries to make such a decision themselves. For my earlier thoughts on this case, see here.

     My prediction: Tough to predict, but I think the First Amendment claimants will win, but it will be close. (I'd say I have 70% confidence in that.) The lineup, which is much more of a wild guess -- Stevens, Kennedy, Souter, Ginsburg, Breyer to strike down the law, Rehnquist, O'Connor, Scalia, and Thomas to uphold it.

     Thomas, who generally takes quite a broad view of the First Amendment, takes a narrower view when it comes to the right to speak using government subsidies (for instance, he joined Scalia's concurrence in NEA v. Finley that took this view). He and Scalia still believe that such a right does exist, when the program involves a designated public forum (see, for instance, Rosenberger v. Rector of the University of Virginia), but my guess is that they will not treat this as such a program, or, if they do, will conclude that the restriction here is viewpoint-neutral. But I could be entirely wrong on this -- it really is a close case.


MY FAVORITE MIXED METAPHOR: It's cited in Webster's Dictionary of English Usage 640 (1989):
This field of research is so virginal that no human eye has ever set foot in it.
I couldn't check the source -- Webster's doesn't always give very precise citations -- but I trust Webster's, and, besides, this is just much too good to pass up (which usually means that it's apocryphal).


EUGENE FOR THE SUPREMES! He's on the short list according to this paper, and he already has the support of the world's most powerful blogger.


DYLAN LAW: How Appealing pointed me to an article describing "a jurisprudence of Bob Dylan". I cannot do justice to the article, which seems to be at least semi-serious; but I can report on my one contribution to this field. About 10 years ago, when WESTLAW came out with its "Natural Language" search facility, I decided to enter the question, in the Supreme Court decisions database:
How many roads must a man walk down Before you call him a man?
The answer my friend, was Terry v. Ohio, which lawyers recognize as the case where the Supreme Court upheld the right of police officers to stop and frisk (in some situations) suspicious-looking characters.


CREDENTIALS: From The ABA Journal:
Zoe D. Katze has an impressive-looking set of credentials -- Ph.D., C.Ht., DAPA. She has been board-certified by three major hypnotherapy associations and holds diplomate status in the American Psychotherapy Association.

Not bad for a 6-year-old house cat. . . .

[Zoe is] Philadelphia psychologist Steve K.D. Eichel's cat. Eichel had a point he had been wanting to make about the proliferation of bogus credentialing organizations over the past 10 or 20 years.

So he decided to credential his cat.

To do that, Eichel first had to get his cat some credit, which turned out to be the hardest part of the process. The credit card company's agent initially asked for Zoe's Social Security number, Eichel says, but cheerfully relented when Eichel told him it wasn't readily available. Zoe was then added to Eichel's account as an authorized user.

To get Zoe her first credential, Eichel says, he simply filled out an "application for certification" on a lay hypnosis association's Web site and charged the fee to his credit card under Zoe's name. Since most lay hypnosis associations have reciprocity agreements, he says, it was a snap getting Zoe board-certified by two other credentialing organizations.

Eichel then decided to go for the gold: diplomate status in the American Psychotherapy Association, which, according to its own promotional literature, "is limited to a select group of professionals who, by virtue of their extensive training and expertise, have demonstrated their outstanding abilities in regard to their specialty." . . .
Zoe got the APA certification.

Monday, November 11, 2002


WHY CONDEMNATION OF "ARMCHAIR GENERALS" IS MISGUIDED: Christopher Hitchens has a great Slate piece on the subject, and also on "chicken hawks." Here's an excerpt, but the whole thing is much worth reading:
The concept embodied in the contemptuous usage is this: someone who wants intervention in, say, Iraq ought to be prepared to go and fight there. An occasional corollary is that those who have actually seen war are not so keen to urge it.

The first thing to notice about this propaganda is how archaic it is. The whole point of the present phase of conflict is that we are faced with tactics that are directed primarily at civilians. . . . Should things ever become any hotter, it would be far safer to be in uniform in Doha, Qatar, or Kandahar, Afghanistan, than to be in an open homeland city. . . .

My wife is not of military age, and there is little chance of a draft for mothers. Are her views on Iraq therefore disqualified from utterance? And what about older comrades who can no longer shoulder a gun? What about friends of mine who are physically disabled? Should their expertise -- often considerable -- be set aside because they can't ram it home with a bayonet? . . . (Mind you, I have the impression that if the "armchair" arguers got their way and asked only war veterans what to do about Saddam Hussein, there would have been a rather abrupt "regime change" in Iraq long before now.)

When a man thinks that any stick will do, said Chesterton, he is likely to pick up a boomerang. Shall we inquire into the "armchair" or otherwise sedentary lives of those who sympathized with Milosevic, or who published euphemisms about al-Qaida, or who went on fatuous hospitality trips to Baghdad and ended up echoing Baathist propaganda? You can be sure that they would yell about "the politics of personal destruction" or perhaps "McCarthyism" if such an imputation was made. Well, then, let them beware of licensing such a cheap form of ad hominem argument. . . .


GO FIGURE: Splosh. Hey, whatever turns you on.


STUDENTS AT UNIVERSITY OF GEORGIA RETAIN RIGHT TO FLY FLAGS: Here's an item from The Foundation for Individual Rights in Education (FIRE); it's a press release and thus necessarily somewhat one-sided, but I've found them to be quite reliable in the past:
[The University of Georgia] has apologized for a University administrator who had ruled on what protected forms of expression were prohibited at this public university. . . .

In July 2002, an administrator in UGA's Office of the Dean of Students emailed all fraternities on campus, instructing them to "make sure that no stars and bars flags/confederate flags (unless you are flying the pre-56) can be seen from any house windows." This would include, of course, the state flag of Georgia itself.

When a student questioned the order, the administrator replied that, despite no formal policy banning the flag in question, such a display would "violate the diversity plan." He warned that the University's Inter-Fraternity Council (IFC) "would bring any group up on violation" if it displayed the state flag, and he expressed his wish that "no group would 'push' this issue."

The student advised FIRE of this threat to constitutional and free speech rights, and he informed UGA that FIRE had been alerted. Quickly, the administrator replied by email that he had meant only that there was a "gentleman's agreement" with fraternity presidents not to fly the flag, and that he had not actually meant that students "would" be brought up on charges by the IFC.

. . . In October, Vice President for Student Affairs and Associate Provost Richard H. Mullendore wrote to FIRE: "Please be assured that the expressive rights of students and student organizations are acknowledged and respected on our campus. Greek student organizations and their governing councils have the same rights and responsibilities as all other recognized student organizations . . . . We apologize if any actions by a staff member were perceived to be non-supportive of an organization's expressive rights."
As I've mentioned before (see also here for more details), I dislike the confederate flag, and believe that people ought not wave it, just as I believe that they ought not burn the American flag. But the First Amendment gives both Confederate-flag-wavers and American-flag-burners (and others) the constitutional right to do lots of things that lots of people dislike. And there's no "diversity" exception to the First Amendment.

     Fortunately, these battles can be won -- if people are willing to fight them. I'm glad that the students here were willing to fight, and that FIRE was able to help them.

UPDATE: Reader Chris Scott writes:
I worked at the Georgia Capitol Museum 5/01-7/02 and lived in Atlanta 1997-2002. The GA state flag was changed in Jan. or Feb. 2001, removing the stars and bars from the right 2/3rds. In its place was a state seal on a dark blue field with a yellow/gold banner depicting five of the state's former state flags. 13 white stars surround the state seal, and the motto "In God We Trust" is at bottom. This was not your error but the organization whose item you've reproduced.

Here's a link to an image reproduced from the Secretary of State's webpage.
I'm not sure whose error it was, and to what extent it was an error (the new flag does indeed include the old, though I suspect that the U. Ga. administrator wasn't referring to the new flag); and I am sure that it doesn't change the First Amendment issue. Still, I appreciate the elaboration.


CANADA, EUROPE, AND TENNESSEE: Some Canadians are likewise calling for further suppression of opinions that they find "hateful"; this is from a Montreal Gazette op-ed (thanks to Little Green Footballs for the link):
We continue to permit anti-Semitic spewings under that laziest of intellectual umbrellas, the freedom of speech and artistic expression. Allowing Jews to be harassed on campus will eventually inspire similar tactics against non-Jews.

What can we do? . . .

Finally, we must push to implement fair and clear speech codes on campus and penalize those who do not abide by them. We should have learned by now how easily terrorists have turned our own freedoms against us. We must learn to safeguard those freedoms and to prevent their abuse as a smokescreen to espouse hate.
I certainly sympathize with the author's opposition to anti-Semitism. But the freedom of speech and artistic expression are not "laz[y] . . . intellectual umbrellas." We all need free speech because all of us have ideas that some think should be suppressed -- consider, for instance, the September 2002 incident where Canadian customs detained for several days pamphlets that defended Israel's right to exist, "to determine whether [the pamphlets] constitute hate propaganda."

     Political violence (anti-Semitic or otherwise) must be punished. Evil political advocacy must be rebutted and condemned. But the government -- and that includes public universities -- ought not be allowed to suppress political ideas, even if they are seen as evil or offensive. Justice Hugo Black had this right: "[T]he freedoms of speech, press, petition and assembly . . . must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish."


HARVARD INVITES POET WHO SAYS JEWISH SETTLERS IN ISRAEL "SHOULD BE SHOT DEAD": Today's OpinionJournal points out that the Harvard English Department has invited Tom Paulin to give its Morris Gray Lecture on Thursday, November 14. Tim Paulin is the poet described in this Guardian story from April of this year:
Tom Paulin, the inflammatory poet, essayist and academic, has confirmed his talent for controversy by claiming Jewish settlers in Israel "should be shot dead".

In an interview with the Egyptian paper, Al-Ahram Weekly, Paulin, a leading anti-Zionist, calls Brooklyn-born Jewish settlers "Nazis and racists", and insists: "I feel nothing but hatred for them."

He also shows empathy for Palestinian suicide bombers, only criticising the tactic for its potential morale-boosting effect. "I can understand how suicide bombers feel," he says. "I think, though, it is better to resort to conventional guerrilla warfare. I think attacks on civilians in fact boost morale."

The comments of Paulin, who is professor of English at Hertford College, Oxford, emerged yesterday as six people were killed and 60 injured when a female suicide bomber blew herself up in Jerusalem.

Last night the Northern Irish poet said he stood by his remarks . . . .
Paulin has also "said he resigned from the British Labour Party recently after realising it was 'a Zionist government'" (Irish Times, Apr. 15, 2002), and has demand that the Guardian require some of its writers to reveal their "Zionist credentials" (The Guardian, Oct. 17, 2001).

UPDATE: Harvard has called off the talk, because of "the widespread consternation that has arisen as a result of this invitation."


A CRIME TO DISAGREE WITH DECISIONS OF INTERNATIONAL COURTS? Here's the latest in Europe's attempt to create a more "balanced," "nuanced," and generally enlightened approach to free speech, as opposed to America's "absolutist" insistence that people should be able to express even evil and offensive ideas. The Council of Europe's Committee of Ministers has just adopted the Additional Protocol to the Convention on Cybercrime, aimed at punishing "acts of a racist and xenophobic nature committed through computer systems."

     Naturally, the Protocol urges countries to outlaw the distribution of "written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any
individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors" and speech that "insult[s] publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics." Even if you in principle think that such material should be banned, imagine how broadly these terms could be read by countries that are trying to enforce political orthodoxies. Someone speaks out in favor of war against the Islamo-fascists -- well, that might be read as "advocating, promoting, or inciting . . . violence" against middle Easterners, with their jihadist beliefs merely being "a pretext" for ethnic origin. You deny that you hate middle Easterners, and claim that you only want to go after al-Qaeda, the Taliban, and Iraq; sure you do, monsieur, tell it to the judge. (And of course the judge would presumably have to punish people who praise attacks on America, too -- let's see if that happens.)

     But wait, there's more! The Protocol also calls on parties to, among other things (emphasis added),
adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 April 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party.
Say that some international court concludes that, for instance, Israel's conduct vis-a-vis the Palestinians, or the bombing of Hiroshima and Nagasaki, has been a crime against humanity -- I do not share these views, but I've certainly seen some people express them, and I can certainly imagine some international court taking this position. Someone disagrees, and sends an e-mail (or put up a Web site) stating that "International law is mistaken, and Israel's and America's actions were indeed morally proper given the exigencies that they faced." Once the Protocol is ratified, that person could then be sent to prison for expressing these views. (The Protocol allows countries to reject or limit this provision, for instance if their free speech principles so require, but obviously the very presence of this provision means that the Council of Europe is urging countries to adopt it.)

     How convenient: International courts develop and apply new principles of international law; and then people can be criminally punished for expressing disagreement with the courts by saying that the decision was wrong, because the underlying conduct was in fact justified. That's what European free speech law is coming to -- international institutions not only acquire new power, but also acquire immunity from criticism, enforceable by criminal punishment.

     This is a question at the very heart of free speech and democratic self-government: May people criticize their governors, suggest that what the governors condemn as evil is actually good, and therefore implicitly urge that either the governors or the rules they adopt should be changed? In broader and broader areas, the Europeans are answering "no."

     I'll say it again -- I am not an expert on European law, and am thus hesitant to express what rules the Europeans should implement for themselves (though I feel pretty confident saying that this proposal would be a very serious mistake). But I've heard many people, including American law professors, suggest that America adopt a more European approach to free speech principles. It's helpful to see, then, what the more European approach would actually look like. And it's also helpful to see the slippery slope in action -- from banning advocacy of violence, to banning advocacy of discrimination, to banning Holocaust denial, to banning any speech that purports to justify behavior that an international criminal court has condemned as "genocide" or "crime against humanity."


A group of silent protesters made their way through campus Saturday afternoon to inform the community and campus about racism and the need to punish people who commit racist acts.

The group, consisting of members from the Black Student Alliance, Black Law Student Association, the Progressive Student Alliance and the Sincere 7, started the march at the Black Cultural Center. They walked past the stadium and Circle Park and then back to the BCC. . . .

The groups who protested have several goals they wish to see fulfilled by the administration. . . .

Some of the goals submitted to administration include hiring more African-American faculty, making African-American history a full major, implementing a racist speech and conduct clause in the student handbook and adding a diversity and anti-racism class to the curriculum, Conner said.

Although the implementation of a hate-speech clause technically violates the First Amendment, Conner and concerned students are looking at the law to see what can be done. . . .
Oooh, those technical violations -- don't you hate it when little things like the First Amendment get in the way of your proposals? (Thanks to Instapundit for the pointer.)


KAUS ON "NEW IDEAS": Here's an insight that both parties should think about, though Mickey Kaus addresses it to the Democrats:
Suddenly, it's 1983! Wait, I've lived through this already. Defeated Democrats need "ideas," says Michael Waldman. And make it snappy! (Get Gary Hart! Didn't he have "new ideas"?) . . . I respect Waldman -- his politics are close to mine, and he wrote a good, entertaining book about the Clinton Presidency. But 1) "ideas" aren't like a crop of wheat you can reliably grow if you just put enough think-tank farmers on the case. It's fair to say that if Democrats can't say immediately, off the top of their heads, what they believe in that's different from Bush, the Brookings Institution isn't going to tell them. . . .


"ANTI-SEMITIC IN EFFECT": My earlier post about anti-Israel views and anti-Semitic ones brought a response that "the elimination of Israel as a political entity would be 'anti-Semitic in effect,' at least," because it would necessitate Israeli Jews being driven from their homes (since it's highly unlikely that any Arab state which takes over Israel would treat Jews remotely decently).

     Now I am not in favor of the elimination of Israel; and I think that the elimination of Israel as a political entity is wrong because it would require an immensely bloody war to accomplish (which isn't a sufficient condition to make something wrong -- the elimination of Nazi Germany required a bloody war, but it was worth it -- but surely suffices to make this goal wrong). What's more, as I mentioned in the earlier post, I think that in fact many critics of Israel are anti-Semitic, though I don't think that this is a logical necessity.

     But this notion of "anti-Semitic in effect" (which I've heard from many others) doesn't make much sense to me. To me, racism, sexism, and anti-Semitism require intention, either to harm a group or at least to treat it differently. If you oppose Israel because it's inhabited by Jews, that's anti-Semitic. If you oppose Israel because it does something bad, but other countries in the region do something as bad and you don't oppose them for it, that raises a presumption that you're intentionally treating Jews differently. If you want to raise taxes in America because you want to transfer money from white rich people to non-white poor people, that's racist; if you want to step up criminal law enforcement because you want to put more blacks in prison, that's racist (we can set aside for now the question whether those policies will indeed have those effets). What makes these attitudes bad is precisely that they seek to treat people worse because of their race or ethnicity. That's intentional anti-Semitism (or at least discriminatory treatment of Jews) and intentional racism.

     When, however, talk turns to "anti-Semitic in effect" or "racist in effect," this must refer to conduct that does not involve an intent to harm people or treat them differently. Presumably it means simply advocating a policy that in effect bears more harshly on one group than on another.

     Such policies, though, are not necessarily bad, and not even usually bad. In fact, they're inevitable. The creation of a Palestinian state may leave Israelis worse off than they were before; the failure to create a Palestinian state may leave Palestinians worse off than they would be had a state been created. If leaving Israelis a lot worse off is "anti-Semitic in effect," then presumably leaving Israelis somewhat worse off is also "anti-Semitic in effect," albeit less so. But by the same token, leaving Palestinians worse off is "anti-Palestinian in effect," with the term anti-Palestinian being entitled to the same moral weight as "anti-Semitic."

     Likewise, if we apply the same to domestic policies, then strictly enforcing various laws dealing with violent crime is "racist in effect," because under most such laws more blacks are prosecuted, in proportion to their share of population, than whites. Or would more lenient enforcement be "racist in effect," because blacks are also disproportionately victimized by violent crime, and lenient enforcement would likely increase such victimization?

     I think these inquiries are ultimately morally irrelevant, and unhelpful (except as rhetorical ploys). If an act is bad in certain ways, it should be outlawed, and the racial makeup of its perpetrators or victims shouldn't matter. Murder, rape, and robbery are wrong regardless of the racial distribution of their effects. If someone thinks "I want to raise the penalties for murder because most murderers are black and I want more blacks to be locked up for longer times," that's a racist argument; but if someone thinks "I want to raise the penalties for murder because murder is wrong, and should be punished more severely," that's not a racist argument. It's the motivations that make an attitude racist or nonracist, not the effects (though it's the effects that make the proposed law wise or unwise, not the motivations).

     The same should go as to international affairs. I'm quite prepared to say that those who are opposed to the existence of Israel, or even the creation of a Palestinian state on certain terms, are wrong. (The best argument against the existence of Israel is that the land should be seen as belonging to the Arabs who mostly owned it, the Jewish settlers had no right to it, the Jewish settlers' descendants thus have no right to it, and thus the eviction of the Jewish settlers' descendants does not violate their rights; I think that argument is wrong for all sorts of reasons.) I'm quite prepared to say that they're anti-Semitic if there's evidence that they're driven by hostility to Jews, or if they apply a double standard to Israel.

     But to say that they're "anti-Semitic in effect," simply because the effect of their proposal is bad for Jews, strikes me as a mistake. "Is it good for the Jews?" (or even "is it not very bad for the Jews?") is not a legitimate test for a proposal's moral propriety.

Sunday, November 10, 2002


THE MEANING(S) OF JUDICIAL ACTIVISM: With the Republicans back in control of the Senate and with judicial confirmations high on the list of priorities (and with myself inspired by Juan's post immediately below), I wanted to offer some thoughts on the different meanings of "judicial activism," a phrase we're going to be hearing pretty often during the next few months. It seems to me that the phrase "judicial activism" is generally used in at least three different ways, and that the debate over the proper role of the courts could be much improved by a recognition that the phrase "judicial activism" has these three meanings, not one.

     Perhaps the most powerful form of judicial activism is what you might call separation-of-powers activism: judicial decisionmaking that takes away the power to create governing rules from the executive or legislative branch and gives that power to the courts. Separation-of-powers activism is sometimes pejoratively described as "legislating from the bench"; the basic idea is that the court has usurped the authority of another branch, and assigned the task of creating substantive rules to itself.

     Another type of activism you might call precedent activism: it refers to a judicial decision that changes a prior judicial rule, overruling a judicial precedent and changing the law. So, for example, a court might decide to overrule a long line of precedents, and be accused by a dissenting judge of "judicial activism" for changing the law.

     Finally, a third type of activism could be called (awkwardly, I admit) invalidation activism. This refers to a judicial decision that strikes down an existing law or practice as unconstitutional. Thus, critics of the Rehnquist Court often charge the Court with activism because the Court has invalidated an unusually high number of federal laws.

     These distinctions are important because any particular ju icial decision can reflect any combination of these different types of activism. For example, a judicial decision could reject prior precedents and create a new rule that defers to legislative judgments, thus upholding the challenged statute: this would be an example of precedent activism but not separation-of-powers activism or invalidation activism. Alternatively, a judicial decision could apply established precedents and conclude that a law is unconstitutional, which would reflect invalidation activism but not precedent activism or separation-of-powers activism.

     Because the phrase "judicial activism" can encompass these three very different meanings (among others, no doubt), it would be a tremendous help if commentators would specify which they have in mind when they charge a court or individual judge with being activist. Commentators too often treat all three forms of activism as the same, even though they share little in common with each other. Because judicial activism is recognized as a bad thing, commentators on both sides of the aisle are quick to describe a decision they don't like as an activist decision, without specifying whether they mean it in the separation-of-powers sense, precedent sense, or invalidation sense.


MAKING SENSE OF SUNSTEIN: Cass Sunstein often confuses me. A prolific professor at the University of Chicago, he is clearly one of the nation's most important legal minds. On a wide range of issues he has penned important and provocative academic articles. I don't think I can say the same for his occasional op-eds in the New York Times. His latest warns of creeping "judicial activism" by Republican judicial nominees.

The heart of Sunstein's argument is that it is inherently "activist" to invalidate federal legislation, irrespective of the merits. Thus he notes the Supreme Court has struck down "at least 26 acts of Congress on constitutional grounds" since 1995. Yet Sunstein fails to note that a sizable number of those laws were struck down under the First Amendment -- hardly that hallmark of conservative "activism."

I also wish to echo the criticism of Sunstein's assumption that it is wrong for courts to question policies with strong bipartisan support. This strikes me as absurd. Flag burning and much other politically unpopular speech merits First Amendment protection, yet it can be political suicide for elected officials to take this position. This makes judicial review of such measures essential. I am no expert on the constitutionality of the measures contained in the USA Patriot Act and other anti-terrorism measures, but I trust that courts will police the constitutional bounds of such measures, despite their popularity. Indeed, the overwhelming bipartisan support for such measures makes judicial scrutiny more important, not less. For some reason, I thought Sunstein would recognize these points. Alas, I was mistaken.


MORE ON JUDICIAL NOMINEES: Before the mid-term election, opponents of President Bush's judicial nominees claimed he lacked a mandate to transform the judiciary. The country was split 50-50, we were told, and President Bush did not even win a plurality of the popular vote. Whatever merit such arguments had before November 5, they are quite hard to make now.

Although several races were close, the popular vote was not split 50-50 between the major parties last Tuesday. Rather, as UPI reports, the Republican-Democrat split in Senate races (as with House and Gubernatorial contests) was approximately 52-48. However one read the results of 2000, the 2002 election produced a startling win for Republicans.

The fight over judicial nominees was not irrelevant to this result. The President made judicial nominations a major issue at the close of the campaign, firing up his conservative base. He outlined a proposal to streamline the confirmation process and devoted his last pre-election radio address to the issue. At one campaign stop after another, the President inveighed voters to elect Republican Senators so Bush's nominees could get confirmed. Enough voters listened for the GOP to take back the Senate, so Bush's nominees should (and will) be confirmed.


THE NYT ENDORSES THE "F" WORD: Filibuster judicial nominees? That's the recommendation of the New York Times. Without control of the Senate, the NYT notes that Democrats "cannot win party line votes" on "extremist" judicial nominees. So true. But one should recall that Democrats were only able to defeat nominees on "party line votes" in the Judiciary Committee. This was never the case in the full Senate. The various nominees who were bottled up in committee – Pickering, Owen, Estrada, McConnell, Shedd -- would have been approved on bipartisan votes had they ever reached the Senate floor. This gives the lie to the NYT's claim that Bush has appointed "extremist" nominees – so "extremist" they would have won confirmation in a Democratically controlled Senate. If there are "extremists" in this fight, they are those who would filibuster Bush's appellate nominees.

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