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Saturday, December 14, 2002


THE POINT ABOUT TRENT LOTT isn't racism; he probably isn't a racist. The point is that once a stupid person has gotten hold of a job like majority leader, it's maddeningly difficult to get rid of him. He will go along for years saying and doing medium-sized dumb things, none of which is enough by itself to force his removal but all of which kill you cumulatively. When someone like that commits a big mistake -- something really stupid -- you have to pounce right away and force him out. It's your only chance. The window is now open for Trent Lott. Unless you're a Democrat, you have to hope somebody pushes him out before it closes. (If you are a Democrat, now is the time to magnanimously accept his apology and agree that it's time for us all to move on.)

UPDATE: The situation appears to be in hand; Don Nickles understands.


THWARTING TERRORIST has coverage of a recent Associated Press interview with FBI Director Robert Mueller. An excerpt:
Mueller said "tens of attacks, probably close to a hundred around the world" have been stopped in the past 15 months. He credited better intelligence gathering and coordination, and information from al Qaeda detainees in custody, including those he described as architects of would-be attacks. "There have been any number of attacks on ships that have been thwarted," Mueller said. "Without getting into details, we have thwarted a number of attacks, both large and small."


TRANSLATING LOTT: Here is an excerpt from Trent Lott's latest statement about his recent remarks praising Strom Thurmond's 1948 Presidential campaign:
I take full responsibility for my remarks. I can't say it was prepared remarks. As a matter of fact, I was winging it. I was too much into the moment. But I only hope that people will find it in their heart to forgive me for that grievous mistake on that occasion.
Fortunately, I managed to find my Politician-In-Trouble-Into-English dictionary, and it allowed me to translate that into everyday language. According to my dictionary, here's the translation of Lott's comment above:
I've been told that this will blow over if I say that I'm taking "full responsibility" for my remarks. There, I said it: "full responsibility." But c'mon, folks, this is ridiculous. Heck, I didn't think anybody was paying attention! Can't you all just forget about this and move on?
Well, no.


The standard protocol for law reviews is that each and every footnote is verified for its accuracy by the editors of the law review. Quotes are checked; dates verified; supporting authorities examined; and so on. It is a laborious process (one with which I was all too familiar in my law school days), but one that makes legal academic publications reliable in a fashion that other academic publications are not. Arming America could not have been published in a law review, as it would not have survived this process.
I disagree, at least based on my experience as an author. My first law review article was based on an empirical study I performed myself; the paper was accepted by and published in the Yale Journal on Regulation in 1998. I'm quite sure the editors did not try to duplicate my results before publishing the paper. In fact, come to think of it I don't think they asked for a copy of my underlying data. I don't mean that as a criticism of the Journal, which did a fine job editing the paper; rather, I think it reflects a common attitude of law review editors towards the papers they publish.

      Practices at different journals vary, but at most law reviews I think it's understood that editors have a relatively limited role. Once they have decided to accept a paper (a decision generally based on a mere guess as to how important the paper is-- but that's another post for another day), most editors will take the view that they have signed on to do cite-checking and style editing. Most journals do not do a tremendous amount of scrutiny of the underlying argument, or of any empirical data that the author presents.


WHATEVER YOU THINK ABOUT ASSET FORFEITURE, you might enjoy this BBC item, thanks to Sasha Castel (no relation):

A group of Sicilian farmers dedicated to battling Italy's Mafia is about to produce its first "anti-Mafia pasta" made from wheat grown on land confiscated from the mob.


LAW REVIEW AND PEER REVIEW: Juan's right that student-edited journals have this advantage over standard academic peer-reviewed journals. But:

  • We only check footnotes for accuracy; you can cite previously cited sources that are wrong or fabricated, and we won't catch that (unless their mistake is that they themselves wrongly cite a source).

  • If the data is personally gathered (as Bellesiles's was), it's not clear how much scrutiny we would give it.

  • If the thesis makes no sense, we may catch it as brainy people, but if it makes no sense in a very subtle way, we may not, since we're only students. We do give pieces to faculty members to read and review before we discuss whether to accept them, which usually will weed out the really wrong stuff (though not Bellesiles-like stuff, which lots of faculty members liked until someone started digging), but authors often add material during the editing process.

The law review editing process is, I think, ideally suited for doctrinal work, where the only sources are cases, statutes, and other law review articles -- there, checking the footnotes and reading the author's sources carefully as he cites them can be great. One of the big arguments in favor of student-edited work is that students aren't as stodgy and are more willing to publish way-out-there views that challenge received wisdom; when the sources are traditional legal stuff, we can do that and make sure no one's falsifying the evidence. But go into interdisciplinary stuff and start citing psychology or history or complex self-collected data (would Bellesiles have submitted his legendary legal pads with the pen-marks on them? surely we wouldn't have demanded copies of all those probate records), and it gets dicier, maybe as bad as any other type of journal.

Which reminds me of a story about how the peer-review process can catch some sloppiness that students wouldn't have been able to do. One paper submitted to an economics journal tried to measure the returns to education, and found implausibly low numbers (i.e., lower than what other papers had found). The professor on the journal, who had lots of experience using similar data sets, realized what was wrong. The education variable, which measures the number of years of education, takes the value 99 when the data is unavailable, so of course you have to eliminate those observations before you run a regression. Otherwise, you get all these people in your set who have 99 years of education but don't have stupendous wages to reward all that educational achievement, so your estimate of the effect of education looks lower. That's an argument for review by experts.

UPDATE/RISING TIDE: See Garrett. Garrett, shouldn't you (and I) be working on our Roman Law exam instead of blogging?


PLURAL OF BELLESILES: I think Bellesiles has got to be either a third-declension noun, like pes (foot), nubes (cloud), or cives (citizen), or a fifth-declension noun, like res (thing) or dies (day). The fifth declension is unlikely because those nouns are all (or almost all) feminine. So I'd go with the third declension. Then we have two possibilities -- either Bellesiles is a regular third-declension noun or it's an i-stem. Let me illustrate the differences:

  • A regular third-declension noun would be Bellesiles in the nominative singular (i.e., when it's the subject of a sentence), and in the plural it would become Bellesilides or Bellesilices (the first would follow pes, the second would follow silex meaning flint-stone, if you wanted to argue that Bellesiles' name was a version of the Latin bella silex meaning "handsome flint"). Let's go with the second version; then the forms of Bellesiles would be, in the singular, Bellesiles (nominative), Bellesilicem (accusative), Bellesilicis (genitive), Bellesilici (dative), Bellesilice (ablative), and in the plural, Bellesilices (nom. & acc.), Bellesilicum (gen.), Bellesilicibus (dat. & abl.).

  • An i-stem wouldn't have an extra consonant in the other forms, but it would gain a couple of i's in a few places. The disadvantage is that the nominative singular and the nominative plural look the same and you can only distinguish by context. These would be the forms in the singular: Bellesiles (nom.), Bellesilem (acc.), Bellesilis (gen.), Bellesili (dat.), Bellesile (abl.). And the plural forms are: Bellesiles (nom. & acc.), Bellesilium (gen.), Bellesilibus (dat. & abl.).

Just to clarify what the cases mean -- nominative means Bellesiles is the subject ("Bellesiles did this"); accusative means Bellesiles is the direct object ("I saw Bellesiles"); genitive means Bellesiles is in the possessive ("The book of Bellesiles"); dative means Bellesiles is the indirect object ("I gave it to Bellesiles"); and the ablative, well, among other things, it's used with the preposition "with" ("I wrote the book with Bellesiles"). Also different cases (with no apparent rhyme or reason) go with different prepositions, e.g. "post" and "ante" take the accusative while "cum" and "sine" take the ablative.

UPDATE: Yes, I know, it's not Latin, it's French. But "belles iles" (beautiful islands) is (1) already plural, and (2) doesn't allow me to do all that fun Latin stuff! Another possibility: insist that Bellesiles only be used in the plural, and say "Belleile" in the singular.

UPDATE 2: See above.


RE: THE POSTS BELOW: What's the plural of Bellesiles?


WHY ARE THERE SO FEW LEGAL BELLESILES? While I wonder about the extent of shoddy academic research in the social sciences and the humanities, there is one area in which I am relatively confident there are relatively few Bellesiles-esque researchers: law. Why? Not because I believe that legal academics are any more scrupulous than their non-legal brethren. (If anything, I could be convinced of the opposite.) Rather, it is due to the nature of legal scholarship.

In legal academia, the vast bulk of academic publications are edited by students, rather than by academics. One consequence of this is a lack of peer-review – something which causes many non-legal academics to look down their collective noses at law reviews. Another distinguishing feature of legal publications is that footnotes and citations are verified by the editors. For those readers unfamiliar with law reviews, let me make this absolutely clear. The standard protocol for law reviews is that each and every footnote is verified for its accuracy by the editors of the law review. Quotes are checked; dates verified; supporting authorities examined; and so on. It is a laborious process (one with which I was all too familiar in my law school days), but one that makes legal academic publications reliable in a fashion that other academic publications are not. Arming America could not have been published in a law review, as it would not have survived this process. (Though once Arming America was published, countless articles could be published in law reviews citing its "findings.")

I believe that these two aspects of legal academic publications – student editors and citation checking – are related. We only have the latter because we have the former. Academics may be willing to peer review each other’s work, but they surely would never consent to spend hours in the library verifying the accuracy of footnotes. Nor does the typical academic journal have sufficient resources to compensate graduate students to perform this task. As a result, many non-legal academic publications are less likely to uncover fraudulent or misleading research in manuscripts accepted for publication.

The only reason law students are willing to engage in the tedious process of fact-checking dozens upon dozens of footnotes is that they are compensated for their efforts with editorial positions on law reviews, and the prestige and stature which can accompany such positions. Serving on law review can be necessary for positions at many high-dollar law firms or with prominent judges. Ending student-edited law reviews would, I suspect, greatly diminish the potential labor pool for cite-checking, and the demise of cite-checking would eliminate law reviews' comparative advantage vis-a-vis other academic publications. After the Bellesiles scandal, that is no small thing.


WHY ARE THERE SO FEW BELLESILES? Ever since the Arming America scandal broke I have been wondering why there have not been more scandals of this sort. The Bellesiles affair illustrated that it is shockingly easy to publish shoddy - if not fraudulent – research, and I have no reason to believe that academics, as a class, are substantially less prone to sloppiness or deception than people at large. I do not mean to suggest that most academics are scoundrels. Rather, given the number of academic researchers, even a relatively small proportion of incompetent, lazy, or dishonest researchers would produce a large corpus of bad research. Thus, I do not find it hard to believe that for every Bellesiles that is uncovered, there may be dozens who remain undetected. Are my instincts wrong?

Friday, December 13, 2002


AS ALWAYS, Jacob Sullum has a well-written column in Reason defending the right to smoke -- here, in New York bars and restaurants. Jacob also discusses filtering software that would allow the French to block illegal Nazi-memorabilia-selling Yahoo! sites on the receiving end rather than try to sue Yahoo! in the United States to shut it down. On the plus side, Yahoo! might be harassed less by the French and other repressive regimes. On the minus side, to the extent this works, the French government could use it to its benefit.


THANKS, EUGENE, for letting us come over and play while you were gone! (And thanks to Sasha, Orin, Erik, Juan, and Philippe for blogging with us!) David and I had fun -- we hope your readers did, too. And we hope they'll drop by OxBlog every now and then to say hi.


WILLIAM SALETAN goes way overboard in attempting to use Trent Lott to tar all conservatives:
How many conservatives who denounced Lott this week appreciate the civil rights movement? How many have made careers out of deriding feminism, as though the women's movement achieved nothing? How many worship Ronald Reagan, who helped defeat the Equal Rights Amendment? How many defend Helms, who in 1990 defeated a black opponent by complaining in an ad that whites were losing jobs to blacks because of quotas? How many speak congenially to people who support them for what they know are ugly reasons? How many worry about the overlap between the positions of segregationists and the positions of people such as themselves, who defend the rights of states, neighborhoods, and private institutions? How many refuse to see that you can't be nice to racists without being callous to the people they despise?

Let's take this one sentence at a time: How many conservatives who denounced Lott this week appreciate the civil rights movement? At a rough guess, I'd say almost all of them. The vast, vast majority of conservatives today believe fervently in King's ideal of a color-blind society. We actually believe in it -- it's not just a cynical ploy to hide our true white supremacism, hard as that may be for some people to accept. And if Saletan wants to suggest otherwise, then he needs to do better than an innuendo-laden rhetorical question.

How many have made careers out of deriding feminism, as though the women's movement achieved nothing? Again, this is just silly. Almost no conservatives argue against the principle of gender equity. I haven't noticed many conservative screeds against the Nineteenth Amendment lately, and, in case Saletan hadn't noticed, a number of the conservatives who went after Lott were women -- Michelle Malkin, Kathryn Jean Lopez, and Linda Chavez, among others -- suggesting that they're not exactly pining for the good ol' days in which a woman's place was in the home. Yes, many conservatives do attack feminism, but to conflate 1990s feminism, represented by the likes of Andrea Dworkin and Catherine MacKinnon, with the advances made by the women's movement in earlier decades is just dishonest.

How many worship Ronald Reagan, who helped defeat the Equal Rights Amendment? Yes, but how many worship him because he defeated the Equal Rights Amendment? This is different from the Lott situation because, as James Taranto points out today, Thurmond's 1948 presidential run really was almost all about segregation. No one could argue that his opposition to the ERA (and, for the record, I think the ERA should have been passed, although my knowledge of it is far from complete, and I'm open to being convinced that I'm wrong) was the central focus of Reagan's campaign. Surely Saletan isn't arguing that you have to agree with everything a politician stands for in order to support that politician. The point about Lott's expressing support for Thurmond is that segregation was almost all that Thurmond did stand for in his 1948 presidential bid.

How many defend Helms, who in 1990 defeated a black opponent by complaining in an ad that whites were losing jobs to blacks because of quotas? I don't know. And I haven't seen the ad in question, but can't one run an anti-affirmative action ad without being racist? (Again, for the record, I have no intention of supporting Helms' record on race. I would simply point out that, insofar as it is reactionary, it represents the views of only a miniscule percentage of conservatives today. On that count, notice that Helms is being replaced by Elizabeth Dole, whom I think no one could accuse of being racist.)

How many speak congenially to people who support them for what they know are ugly reasons? This is unfortunate -- I wish more politicians would speak out against those who support them for ugly reasons. But to claim that this is a pathology unique to conservatives is absurd. It's a fact of democratic politics.

How many worry about the overlap between the positions of segregationists and the positions of people such as themselves, who defend the rights of states, neighborhoods, and private institutions? The "overlap"? In other words, if you advocate the same position as a bad person, then that position must be wrong? Does that work against liberals, too? Let's try: How many liberals worry about the overlap between the positions of communist dictators (say, universal healthcare) and the position of people such as themselves, who defend the rights of the poor to be provided basic social services for free?

How many refuse to see that you can't be nice to racists without being callous to the people they despise? Again, I agree with this principle. I'd like to see it evenly applied. No Democrat should ever again meet with Jesse Jackson, Sr. or Al Sharpton -- their anti-Semitic comments certainly place them beyond the pale. The racism of Diane Watson and Michael Moore certainly rule them out. The list can go on.

None of what I've said above in any way mitigates what Trent Lott said, and the man still needs to go. And as I've argued before, it would be stupid and wrong for conservatives to try to deflect the charges against Lott by bringing up instances of racism on the left -- racism by one's opponents does not justify racism by one's allies. But when people like Saletan or Krugman try to tar the entire conservative movement as racist, that's when conservatives have to play defense. Because the only way you can claim that conservatives in general are racist/sexist/whateverist is by making either (a) factually erroneous claims (e.g., 'most conservatives don't care much for the civil rights movement'), or (b) arguments that are sufficiently overbroad that they manage to tar every politician as racist/sexist/whateverist. Saletan does both. And he's not convincing.


RIDING OFF INTO THE SUNSET: It seems that Eugene is back and that the time has come for myself and Josh to return from whence we came. (No, not the local pub. I meant OxBlog). It has been a pleasure.


AN LSAT SNEAK PEAK: Mitch Webber presents a typical LSAT logic game.


ME, TOO! I have nothing original to say about Trent Lott, but I thought I'd pass along something that my friend and former colleague Dan Polsby posted to a discussion list (and kindly agreed to let me repost):
Is it not curious and wonderful that Sen. Lott seems unable to see what everyone else can see about his predicament? Here he is, hunkered down in his regulation Beltway duck-and-cover position, thinking of firestorms past and how people have survived them. It's all about him. The welfare or interests of other people who depend on the leader of a political party, and how he might best serve them, have never evidently crossed Sen. Lott's mind since this business began -- if ever. The latest bleat seems to be: those Democrats, that Jesse Jackson, they have unclean hands and double standards. In other words: if they can have double standards, so can we. Fooey.

There is something the matter with this guy. The same thing is the matter with many of them. Not racism -- solipsism. The "it's all about me-ness" of the world. This is the sort of person who steps up to the plate when offices and dignities are being passed around. They have to be controlled. Madison was a genius.


I AM NOT ALONE: Stephen Schwartz shares his thoughts on democracy and Islam.


ALGERIA VS. IRAN: As promised, I am now going to present a solid, empirical case for the viability of democratization in the Middle East. The way I'm going to do it is country by country. First up is Algeria. Now if you asked me last week what I know about Algeria, I would've told you this: It was a secular dictatorship until the early 1990s, at which point it decided to hold elections. When a radical Islamist party won those elections, the military nullified the result and the country descended into a bloody civil war. In short, I would've had to admit that Algeria was a perfect example of the "Iranian paradigm" in action.

That, however, was last week. Now, thanks to the Journal of Democracy, I know a lot more about Algeria. So let me share.

The civil came to an end, more or less, when the government and the Islamic guerrillas declared a truce in 1997, followed by an official amnesty in 1999. The current president of Algeria is Abdelaziz Bouteflika, who came to power after all of his rivals in the 1999 presidential "election" withdrew because they knew if would be rigged. Bouteflika is, of course, the candidate of the military, who still have the final say in Algerian politics. Nonetheless, elections for the national, provincial and local assemblies have been essentially fair, including the most recent National Assembly elections in May 2002. Bouteflika's party, the FLN, took 36% of the vote, more than any other party and enough to give it a majority in the Assembly.

According to William Quandt, professor of politics at the University of Virginia (and author of the Algeria article in the current issue of the Journal of Democracy), Algeria
seems to be divided into at least three main ideological blocs: 1) a nationalist group backed by between 25 and 30 percent of the population—officials, state workers, and rural voters—that reliably votes for the FLN or other government-endorsed parties; 2) an Islamist bloc that commands the loyalties of some 15 to 20 percent; and 3) a Berber-nationalist bloc that has the support of another 10 to 15 percent. Political allegiances within the remainder of Algerian society are scattered among small groups of democrats, regionalists, and independents. No single bloc has a majority, and none can easily govern without some support from at least one of the others.

Second, elections have revealed the main fissures in Algerian society, but they have done little either to legitimize governance or to challenge the positions of those in power. Nor have democratic procedures taken root as a way of resolving conflicts. While elected officials are by no means mere puppets of the military, they know that the latter potentially has veto power over major decisions.
While it would be hard to call this good news, it does underscore one critical point: that there is no need to fear a radical Islamic resurgence should Algeria progress further toward liberal democracy. The initial cycle of revolt against the old regime has run its course and a new political structure is emerging. As Quandt observes, the military "has now succeeded in reducing the chances of an Islamist victory—whether by force of arms or at the polls—to almost nil."

Taking a somewhat more long-term perspective, one might whether Algerians are culturally ready to accept democracy or whether, as critics allege, Islamic culture is inherently unable of sustaining democratic politics. The evidence cuts both ways. While "there are some convinced democrats, but there are probably many more Algerians who have a narrowly instrumental view of democracy—in particular, viewing it as a means to get rid of a political order that they detest." On the other hand,
...multiparty democracy is no longer a disparaged concept in Algeria, as it was in the early days following independence. Most Algerians today say that they would welcome democracy, greater accountability, the rule of law, and more transparency. They are tired of the contempt with which the regime treats ordinary citizens...

Finally, a vibrant free press and growing access to satellite dishes and the Internet have made for lively political discussion within the country. Satire, political cartoons, rai music, and a rich political slang in dialectical Arabic provide outlets for political sentiment. The large community of Algerian expatriates living in nearby Europe also helps to ensure that ideas of modernity and democracy are well understood by Algerians back home, many of whom are fluent in one or more foreign languages—principally French, but increasingly English as well.
I find the existence of a strong and independent press to be the most encouraging of the positive trends, since it is an indication that Algerians themselves believe in the importance of the free flow of ideas as well as the right of the public to know what its government is doing in its name. If Islam truly were antithetical to democracy, the development of such a strong and independent press in just over a decade would be extremely suprising. However, arguments about Islamic culture often neglect to address the national and international dimensions of culture, which are no less important than the religious. While the concept of national culture is well-recognized (though not well-defined), international culture is a more elusive concept. Without engaging in a definitional or theoretical debate, I think it is possible to say the following: Ideas cross borders. Even in nations that are far from being democratic, there is a general awareness of what democracy is. This second-hand knowledge has been influential enough to mobilize mass democratic movements in nations that had never before experienced democracy, most notably in the former Soviet Bloc. Of course, there are those who explicity reject democracy, most often on religious grounds. But people everywhere believe that government must rest on a conceptual foundation, be it Islamic or democratic. In the absence of conceptual legitimacy, governments find themselves forced to justify their existence on narrow and defensive grounds, such as the need to avoid violence and chaos. While such arguments have for, example, allowed the Algerian military to insist that it is only the bulwark against an Islamic revolution. Now that the threat of such a resolution has subsided, however, the military cannot hold on without resorting to violence of its own. Fortunately, it seems to have decided that freedom is more important than power.

One thing Quandt does not talk about in his article is the role that the United States might play in promoting Algerian democracy. The reason he doesn't is because he can't. A hidden clause in the Journal of Democracy's editorial policy dictates that authors should not prescribe (or even project) a given course for American foreign policy. This clause exists to protect the Journal, since it is published by the National Endowment for Democracy, which is a federally-funded though nominally independent organization. (Note that its website exists in the .org rather than .gov domain.) Broadly speaking, I sympathize with this desire to protect the Journalfrom political controversies that might interfere with its intellectual mission. Still, in light of how academic the Journal has become, I think there is a place for measured, non-partisan considerations of what America can and should do to promote democracy abroad.

Regardless, the fact remains that the Journal's contributors cannot address such questions. So I will. In general, I believe that American foreign policy is the most powerful instrument available for encouraging democratic reform abroad. In the case of Algeria, as with all other Middle Eastern countries, we should make it eminently clear to those in power that we see democratic reform and the war on terror as inseparable. Terror is the antithesis of democracy, and cannot survive long if a democratic public is aware of it. In light of its demonstrated interest in relaxing its grip on power, there is every reason to believe that the Algerian military will respond to American overtures. On the other hand, if we say nothing, the military may exercise the conservative option of preventing further liberalization until the current crisis in the Middle East subsides. There are no predetermined outcomes. But focused action can make a difference.


WILL THE MADNESS NEVER END? Through Howard, a third second-hand smoke decision, right on the heels of the two I wrote about yesterday. Yesterday, the Ninth Circuit affirmed a tort damages award against an airline based on the airline's improper response to a passenger's respiratory condition in the presence of second-hand smoke; the day before yesterday, the Fourth Circuit reinstated an EPA report classifying, on the basis of shaky science, second-hand smoke as a known human carcinogen.

Today, it's the Second Circuit, in Davis v. New York. Davis is an inmate at Attica Correctional Facility, who sued the state of New York and other parties (the governor, the department of corrections, the commissioner, the prison, the superintendent, and several corrections officers) on the grounds that his exposure to second-hand smoke behind bars constituted cruel and unusual punishment.

The magistrate judge granted summary judgment against Davis. The Supreme Court had said in Helling v. McKinney, 509 U.S. 25 (1993), that second-hand smoke exposure could be the basis of a cruel and unusual punishment claim (that was a 7-2 case, with Thomas and Scalia dissenting). But here, Davis hadn't produced evidence that his exposure to second-hand smoke was unreasonable. Because the magistrate judge disposed of the case on those grounds, he didn't have to reach the subjective element of an Eighth Amendment violation, where Davis would have had to show that the defendants acted with deliberate indifference to his health or safety.

The Second Circuit disagreed, saying summary judgment against Davis (which means he loses without going to trial) was inappropriate here, because there may have been factual questions about the extent of Davis's exposure to second-hand smoke that would require a trial to resolve. The Second Circuit remanded to the lower court to determine (1) whether there were genuine issues of material fact to resolve and (2) whether Davis had exhausted his administrative remedies, as the Prison Litigation Reform Act requires.

The Second Circuit then looked at the subjective prong of the Eighth Amendment analysis, which the magistrate judge didn't reach. The court dismissed Davis's claim against Gov. Pataki because he hadn't alleged Pataki's involvement, and it dismissed Davis's claim against the state, the department, and the prison, and the claims for damages against the individual defendants, because as state actors, they had Eleventh Amendment immunity from suit. But the court remanded all the claims for declaratory and injunctive relief, and the damages claims against the prison officials in their individual capacities, to the lower court.

So nothing's resolved yet; the case may yet go to trial. Whether Davis wins or loses depends whether he can show the subjective element of deliberate indifference; whether he can show substantial exposure to second-hand smoke ("whether society considers the risk . . . to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk"); whether the prison officials have qualified immunity from damages claims in federal civil rights suits (which, note, they wouldn't have in a private prison); and other questions.

Also, the court didn't decide anything important related to actual second-hand smoke exposure; the only interesting part that actually relates to second-hand smoke so far is the fact that second-hand smoke exposure can support an Eighth Amendment claim, and the Supreme Court resolved that in 1993.


WHO SHOULD HEAD THE 9/11 COMMISSION? My father says, Tom Clancy.




I CAN"T RESIST GLOATING. Kissinger has resigned as head of the 9/11 commission. I blasted Kissinger's appointment as soon as I heard about it. I said we couldn't trust him. Now he's admitted it as well. Don't think for a second that this admission was voluntary, however. Only the disclosure requirements imposed on the commission members forced Kissinger to decide between his consulting business and the national interest. Contrary to what his erstwhile defenders have said, Kissinger hasn't changed. If he really cared about his historical reputation that much, he would've chosen to head the commission rather than protect his clients.

To be fair, however, I made some bad calls as well. On Dec. 1, I wrote that
The NYT and WashPost have offered subtle but still unequivocal criticism of the President's choice. One might even say that such criticism is more effective, since Dr. K has already taken the Times' advice and promised to sever ties with any clients whose interests might be affected by the outcome of the investigation. Still, such a promise is irrelevant. There is no reason to thnk that financial interests will affect Kissinger's judgments. The real problem is his total lack of respect for the public's right to know what their government does, a right he disrespected time again while serving as Secretary of State and National Security Adviser.
Obviously, I was wrong about financial interests not affecting Kissinger's judgment. Also worth noting is that Kissinger promised to sever times with any clients whose interests conflicted with that of the commission, but then resigned once it became clear that he would have to provide evidence that he had done so. I guess the lesson here is that Henry Kissinger is even more dishonest than his harshest critics make him out to be.

On the bright side, Kissinger's resignation leaves room for the administration to appoint a credible director. Not that I have much confidence it will, however. After all, it didn't just appoint Kissinger, but also tried to exempt him from the disclosure requirements that eventually forced his resignation. If I had my druthers, John McCain would be Kissinger's replacement. He'll tell the truth no matter who it gets hurt (and especially if it Clinton and Bush get hurt). But I have a feeling a McCain commission isn't in the cards. As such, I'm going to second Dan Urman's endorsement of Gary Hart and Warren Rudman. Both men are independent thinkers who demonstrated their insight into America's best interest with their recommendation in January 2001 that the new administration establish a Homeland Security Department. If they came up with that idea, they may have some insight into what we should do about the agencies who describe themselves as being in the business of "intelligence".

UPDATE: Apparently, Kissinger isn't taking his resignation well.


MISSING THE STORY: Both the NYT and WashPost have in-depth accounts of yesterday's gathering of Iraqi opposition groups. In a manner reminiscient of Kurosawa's Rashomon, the accounts of the respective papers' correspondents are so different that one has to wonder what actually happened. The Times focuses on the Iraqis interest in cultivating relations with Iran and resistance to the prospect of an American military government. The Post focuses on the infighting that is dividing the opposition and preventing any coherent planning ffor postwar Iraq from taking place.

If I were a journalism professor, I would have to give an 'A' to the Post's story and a 'C-' to the Times. If you don't know much about the Iraqi opposition-in-exile, the Times' story leads you to believe that American militarism is driving potential allies into the arms of Iran (which the Times duly informs us is "part of what President Bush has called the "axis of evil"). The real story, however, is that the fragmented Iraqi exiles have become desperate to win back the respect they once had in Washington, but which they lost after the United States recognized just how divided and ineffective the Iraqis are. References to Iran are signs of that desperation. Threatening the US is probably not a good idea, however. As for the opposition's resistance to a US military government on faux nationalist grounds, that is nothing more than a shameless attempt to prevent the US from sidelining the opposition completely. But that's exactly what the US should do. Above all, the opposition is not representative of the Iraqi people in any significant way. It is closer to being a collection of special interests than a democratic forum. Talented opposition figures should be encouraged to serve in the postwar government, but on the grounds of merit, not representativeness.

The fragmentation and selfishness of the Iraqi opposition is a long-standing trend that the Post has done quite good job of covering. As it reported a month ago, the various opposition groups couldn't even agree on a date or venue for the conference. Long before that, the Iraqi National Congress, one of the leading groups was already pressing the State Department to grant it exclusive rights to run the postwar government. As I see it, the best hope for establishing a legitimate government in Iraq will be to have Tommy Franks run it long enough for a new political class to emerge.

UPDATE: Over at the National Review, Amir Taheri puts a more positive spin on the Iraqi opposition.


A PROMPT AND GRACIOUS CORRECTION: Rob Morse, who wrote the San Francisco Chronicle column that I noted Wednesday, has published a prompt and gracious correction in his column this morning; I very much appreciate it.
Correction: Because of inexcusable misreading and poor note-taking, in Wednesday's column I took a sentence out of context from Eugene Volokh's article on the Second Amendment in the National Review. When Volokh wrote "Shouldn't courts read the Second Amendment as part of an evolving Constitution?" he was posing a question someone had asked him. He did not endorse the evolutionist perspective, but argued against it.

I apologize.


MICHAEL BELLESILES' BANCROFT PRIZE REVOKED: Many of you have already heard it, but just in case you haven't, here's the press release as passed along to me by a trustworthy colleague:


Eileen Murphy, Columbia University

Columbia University's Trustees have voted to rescind the Bancroft Prize awarded last year to Michael Bellesiles for his book Arming America: The Origins of a National Gun Culture. The Trustees made the decision. Based on a review of an investigation of charges of scholarly misconduct against Professor Bellesiles by Emory University and other assessments by professional historians. They concluded that he had violated basic norms of scholarship and the high standards expected of Bancroft Prize winners. The Trustees voted to rescind the Prize during their regularly scheduled meeting on December 7, 2002 and have notified Professor Bellesiles of their decision.

The Bancroft Prize, which was first offered in 1948, is to be awarded for works in American history of "distinguished merit and distinction." The selection criteria for the Prize specify that it "should honor only books of enduring worth and impeccable scholarship that make a major contribution to our understanding of the American past." Professor
Bellesiles' book seemed to fulfill these criteria at the time of selection. However, it has since been the subject of substantial debate within the community of American historians that included charges that Professor Bellesiles had committed scholarly misconduct in the use of some of his primary source materials.

In response to these charges, Emory University, where Professor Bellesiles holds an appointment, established a panel of three distinguished scholars from other universities to conduct a review. On October 25, 2002, following this review, the panel issued a report. In it, the panel members found "evidence of falsification" with respect to one of the questions they were asked to consider; spoke of "serious failures of and carelessness in the gathering and presentation of archival records and the use of quantitative analysis" on two others; and questioned "his veracity" with respect to a fourth. They also concluded that he had "contravened" the norms of historical scholarship both "as expressed in the Committee charge and in the American Historical Association's definition of scholarly 'integrity.'"

Columbia's Trustees considered the report of the Emory investigating committee and Professor Bellesiles' response to it. They also considered assessments by professional historians of the subject matter of that report.

After considering all of these materials, the Trustees concurred with the three distinguished scholars who reviewed the case for Emory University that Professor Bellesiles had violated basic norms of acceptable scholarly conduct. They consequently concluded that his book had not and does not meet the standards they had established for the Bancroft Prize.

In making their decision, the Trustees emphasized that the judgment to rescind the Bancroft Prize was based solely on the evaluation of the questionable scholarship of the work and had nothing to do with the book's content or the author's point of view.


RESIGNATION DAY. First Law. Then Kissinger. We'll know if my source was right about Lott any minute now ...

UPDATE: Nope. Not enough. Lott still must go.


I'M SORRY, BUT I DON'T HAVE TIME to respond to everyone who's emailed me arguing that secession wasn't treasonous and was constitutional. So instead, I'm going to refer you to this excellent article by Akhil Reed Amar. (Disclosure: I was and sometimes still am Professor Amar's research assistant; I helped write this article; and I'm the same Josh Chafetz who's thanked in the second footnote.)


HERO OF OUR TIME: Through Virginia, an article on Norman Borlaug, father of the Green Revolution and Nobel Peace Prize winner (not like that last is any great mark of distinction these days, but sometimes they do get it right (but "Peace"???)). Thanks to Glenn for reminding me of an excellent January 1997 article about Borlaug by Gregg Easterbrook in The Atlantic. I reviewed Easterbrook's book A Moment on the Earth in the July 1995 issue of Reason; I only agree with him halfway, but he's definitely (relatively) quite sane on environmental matters.


I LIED. I said that I was done talking about Trent Lott. But this post is about him, too. Feel free to skip it if you're all Lott-ed out.

Lott will be holding a press conference this afternoon in Pascagoula, Mississippi. The AP thinks the press conference is to apologize, as does Drudge. But a Republican Party source tells me that Lott is pretty close to being shown the door, and that the press conference this afternoon may in fact be an announcement that he's stepping down. My source told me, however, that nothing had been decided yet for sure.

On a related note, Michele Cottle notes that Lott "led the charge to posthumously restore citizenship status to Confederate President Jefferson Davis" in 1978. I'm sure Lott would argue that Davis stands for a lot more than the defense of slavery, just as some Southerners argue that the Confederate flag stands for a lot more than slavery. And they're right. For example, one thing they both stand for is the single greatest act of treason in American history. Article III, section 3 of the Constitution defines treason as a citizen's "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." Of course, what Jefferson Davis and the Confederacy did was precisely to levy war against the United States. (This, coincidentally, makes it so odd that some of the same people who want to outlaw burning the US flag are also very defensive about the Confederate flag which, after all, was the flag of a group that attempted to destroy the Union for which the US flag stands.) So, a question for Mr. Lott and others: what, precisely, do Davis and the Confederacy stand for that is so good that it outweighs both their position on slavery and their act of treason?


CHOPPED LIVER: My vote goes to the chopped liver at the long departed Duke Ziebert's in D.C. Mmmm is right. My aunt Sarah, also long departed, made a pretty mean version herself, but sadly I lack the recipe. If the need arises I thus will rely on Mrs. Volokh's recipe as other dishes from her book have proved to be outstanding when I have eaten them in the past.


LEFTOVER TURKEY: Embarrassing itself yet again, the EU has refused to even set a date for membership negotiations with Turkey. Accordingly, the NY Times lashed Europe for "a needless and damaging delay" that in some respects is "merely a facade for anti-Muslim prejudice".

Interestinlgy, the Post chose to publish a column by, Jeffrey Gedmin, a Berlin-based analyst who makes a strong case for the difficulty of admitting a nation whose economic and legal structures have so far to go before meeting European standards. Yet even Gedmin acknowledges, with regard to the EU's justification of its decision that "seldom has the gap between rhetoric and reality been as great as now."

One point that has unfortunately been left out of today's raft of articles on Turkish membership is the way in which opening negotiations with Turkey might affect the electoral prospects of Europe's current governments. Knowing that popular support for EU expansion is lacking, European leaders have avoided submitting the issue to public referenda. Ireland, the one nation that has held a referendum, had to hold a second referendum as well after the first expansion proposal was rejected. (Special thanks to Matthieu Vasseur for elaborating this point.)

In the absence of a popular mandate for expansion, Europe's governments know they cannot push much farther without risking a backlash. While, on the one hand, such behavior is thoroughly democratic, it also entails shameless pandering to racist and religious prejudice. While a popular backlash might not result from admitting too many white and Christian nations, admitting one dark-skinned and Islamic one would create a furor. Or should I say "create a Fuehrer"?

In short, Turkey's prospects-- and, by extension, those of democratization in the Middle East -- are being held hostage by Europe's twin domestic crises: First, its inability to broaden and deepen the EU in a democratic manner; Second, its inability to confront the implications of religious diveristy, both in the form of violent Islamic fundamentalism and the racist reaction to it. Thus, at a time when George Bush is visiting mosques and the Turkish electorate has opted for a party that reconciles Islam and democracy, Europe finds itself struggling to balance church and state.

UPDATE: I just ran across a Fareed Zakaria op-ed on Turkey and the EU which I linked to a few weeks back. The key quote is this:
Europeans often complain that America's strategy in the war on terror is one-dimensional. It's all military might with little effort to engage the Islamic world in a constructive way. They point out that unless we help Muslim countries prosper, all the F-16s and Predators in the world won't stop the flow of terror. It's a valid criticism, but the single biggest push that could shift events in this direction lies not in America's hands but in Europe's. And Europe is about to blow it.


HIGADO PICADO is Spanish for "chopped liver". That is pure trivia. It is profoundly significant, however, that the best chopped liver in NYC can be found at the 2nd Ave. Deli. While the Deli does have an excellent mail order service that allows customers from Missoula to Montgomery to sample its kosher delights, chopped liver is apparently too delicate to be included on the mail order menu. As such, I have often served as a personal courier for this legendary Deli delight, taking containers of it on planes with me as I have traveled from Naragansett to New Mexico.

In contrast to Henry Kissinger, who seems to have problems disclosing conflicts of interest even America's national security is on the line, I freely admit that my evaluation of the Deli is hopelessly biased. I have known the Lebewohl family, owners of the deli, since I was the size of a matzah ball. Abe, the Deli's founder and a much beloved man on lower 2nd Ave., was tragically killed one morning in the process of depositing his receipts in the bank. His brother Jack took over the Deli, however, and it continues to be a living memorial to the fallen. I have taken friends from America, Hong Kong and El Salvador to eat at the Deli with me, and their praise has been unanimous. But even if you can't trust my opinion, you should know that Zagat has rated 2nd Ave. as the No. 1 deli in New York. Mazel Tov!

Thursday, December 12, 2002


CONSERVATIVES AND PUNITIVE DAMAGES: Again through Howard, Edward Lazarus seems to think that conservative justices think the Eighth Amendment bars punitive damages:

The conservative justices believe that the Eighth Amendment to the Constitution places strict limits on punitive damages against companies yet virtually no limits on punishing criminals. [New judicial nominees should be asked:] Do you believe, as these justices do, that it is constitutionally "excessive" to award punitive damages of more than four times actual damages, but that it is not constitutionally excessive to put someone in jail for life for stealing a videotape cassette worth roughly $15?

Who are these conservative justices? Well, as Howard points out, it's not Rehnquist, Scalia, or Kennedy, because they joined the majority opinion in Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257 (1989), which specifically held the opposite. O'Connor does think the Eighth Amendment limits punitive damages, but she seems to be alone among conservatives. Thomas wasn't on the court at the time, but he later wrote, in his concurrence for one in Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001):

I continue to believe that the Constitution does not constrain the size of punitive damages awards.

So, basically, only one conservative justice believes the Eighth Amendment limits punitive damages.

It gets even better. Most of the recent (post-Browning-Ferris) Supreme Court decisions about punitive damages don't even involve the Eighth Amendment; it's the Fourteenth, and that's where all the action has been happening. Now, it turns out that Scalia and Thomas don't even think the Fourteenth Amendment limits punitive damages -- they don't like substantive due process analysis at all. O'Connor and Kennedy do think high punitive damages violate the Due Process Clause, and so do liberals Stevens, Souter, and Breyer -- though maybe not Ginsburg, see BMW of N. Am. v. Gore, 517 U.S. 559 (1996). Rehnquist joined Ginsburg in BMW, but that doesn't mean he's against the Due Process analysis -- he joined the majority in TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), so he favors the analysis in principle, he just thinks actually going there can be "unnecessar[y] and unwise[]" because this is "an area dominantly of state concern."

So basically Scalia, Thomas, and Rehnquist frown on questioning the size of punitive damages awards, either through the Eighth Amendment or through the Fourteenth. Just not an area of federal constitutional concern. The left should love them for that.

Back to the Lazarus article -- how sloppy is it possible to get? I can only presume that Lazarus thinks that conservatives like business, therefore conservative justices like to help businesses through the Constitution. Maybe the most conservative justices -- a majority of the majority -- like to maintain the consistency of their constitutional theory more than they like business?

UPDATE: Eddie Lazarus sends me an e-mail acknowledging that he "blew it on the punitive damages question" and "will seek to delete the query from his piece."


MMM, CHOPPED LIVER: Howard correctly implies that I'm not chopped liver. However, I enjoy both eating and making chopped liver (and last made a batch for appetizers to Thanksgiving dinner). Here are my two favorite recipes, both from The Art of Russian Cuisine by one Anne Volokh.

Liver and Mushroom Pate
Pashtet iz Pechonki i Gribov
(serves 6)

3 tablespoons unsalted butter
1/2 pound mushrooms, cut into 1/4-inch slices
1/2 pound calf's liver or chicken livers, cut into 1-inch pieces (note: chicken livers are the tenderest of all and produce the softest, fluffiest pashtet)
1/2 medium onion, finely chopped
1/4 pound cream cheese, at room temperature
1/8 teaspoon freshly grated nutmeg (I use ground nutmeg out of the spice jar, of course)
salt to taste

Melt 1 tablespoon of butter in each of three separate skillets. In one skillet, saute the mushrooms over moderate heat for 7-10 minutes. In the second, saute the liver for 5-7 minutes over moderate heat. Saute the onions in the third skillet over low heat for 8-10 minutes, or until golden and limp. Stir the contents of each skillet from time to time during the cooking process.

Transfer the mushrooms, liver, and onions to a food processor, scraping up any browned bits and pan juices, and puree until smooth. Or put through a meat grinder twice. (Note: I only put it through the meat grinder once, it works fine.) Push the mixture through a sieve and discard any tendons. (Note: You don't really need to do this once it's gone through the meat grinder.)

In the bowl of an electric mixer (note: or with a wooden spoon), combine the mixture with the cream cheese, nutmeg, and salt and beat at moderate speed for 2 minutes. Taste for salt, then beat for 2-3 minutes more, or until very fluffy.

Place the pate in a serving bowl and serve at room temperature with lightly toasted white bread. (Note: or not toasted white bread... or crackers... or wheat thins.)

Or, if you want it without the mushrooms and with more liver:

Chopped Liver
Pechonochnyi Pashtet
(serves 8-10)

1 1/2 pounds beef liver, calf's liver, or chicken livers (note: chicken livers are the tenderest of all and produce the softest, fluffiest pashtet)
2 medium onions
4 tablespoons unsalted butter (or 1/4 cup rendered chicken fat, or 2 ounces pork fatback or bacon, cut into 1-inch pieces and rendered in a nonstick skillet for 5-7 minutes)
salt to taste
1/4 teaspoon freshly ground black pepper (note: I use ground pepper from a little box)
1/4 teaspoon freshly grated nutmeg (note: I use ground nutmeg from the jar)
2 tablespoons brandy
2 hard-cooked eggs, peeled and finely chopped
(optional -- I don't use these: parsley sprigs, thinly sliced pickles, oil-cured black olives, and 6-8 baked pastry shells)

Cut beef's or calf's liver into 5-inch squares. Chicken livers need not be cut. Cut the onions in half, then slice each half about 1/4 inch thick. Melt the butter or chicken fat in a heavy skillet and add the liver and onions. Fry over medium heat: 5 minutes for chicken or calf's liver, 7 minutes for beef liver, stirring often. If you use bacon, don't let it turn too dark. Cover, lower the heat, and simmer 5 minutes for chicken or calf's liver and 7 minutes for beef liver. Do not overcook; the liver should be tender and juicy. Remove from the heat and add salt to taste.

Grind the liver, onions, and bacon (if used) twice in a meat grinder (note: I just do it once) or puree in a food processor. Push the mixture through a sieve into the bowl of an electric mixer. Discard the tendons. (Note: I don't do the sieve and tendons thing once it's gone through a food processor once.) Add the pan juices, pepper, nutmeg, brandy, and chopped eggs to the meat and beat at medium speed for 3 minutes with an all-purpose electric beater or for 5 minutes by hand with a wooden spatula. (That's Count Spatula!) The mixture should be very fluffy. Taste for salt.

(All the rest is optional:) Transfer the liver to a decorative serving bowl, shape into a pointed dome, and decorate with parsley, pickles, and olives. For a more elegant presentation, divide the liver among 6-8 baked pastry shells, shape the mounds neatly, and decorate as described. Serve the chopped liver at room temperature.

Chopped liver, or as I like to call it, chicken liver pate, is pure Russian/Jewish soul food and is the yummiest thing!

UPDATE: Reader Joe Socher reminds me that these particular recipes do not represent the traditional Jewish soul, because the first mixes meat and milk and the second contains pork. Well, in the second recipe, the pork fatback or bacon is optional. If you use butter, you're still mixing milk and meat. So I figure if you use chicken fat on the second recipe instead of bacon or butter, it's still kosher, right?

UPDATE 2: Reader Jerome Sternstein says that in 1888, Scotland Yard maintained that Jack the Ripper had to be a "low class Polish Jew," because, they assumed, he was "a butcher who sold chicken livers for chopping." After this information was released, the story goes, Jack sent a letter stating, "I'm not a butcher. I'm not a Yid. Nor yet a foreign skipper. . . Yours truly, Jack the Ripper." The source for this factoid is Stephen & Ethel Longstreet, The Joys of Jewish Cooking 86, which he claims also contains a more authentically lower East Side recipe for chicken livers, involving grieben, the skin from rendered chicken fat.

UPDATE 3: Corinna Hasofferet, in Israel, suggests using olive oil instead of butter/fat/bacon. She says it's healthy and "might counteract some of the liver's unhealthy elements" -- "this organ as you know functions as a sieve. You get the remnants." Corinna also says: "Olive oil is also one of the few things Jews and Arabs agree about with enthusiasm. Use it and feel you've done your share in bringing peace on earth.


SECOND-HAND SMOKE SMACKED DOWN: How Appealing points out two recent decisions that are bad news for second-hand smoke. Today, the Ninth Circuit (opinion by Judge Molloy, with Judge Reinhardt sitting on the panel) affirmed the district court in Husain v. Olympic Airways, where the airline was made to pay for the death of a passenger caused by second-hand smoke in the cabin. And yesterday, the Fourth Circuit (opinion by Judge Widener) reversed the district court in Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA; the district court had invalidated an EPA study finding that second-hand smoke was a known human carcinogen.

It turns out that neither of these opinions are especially bad news.

  • In the EPA report case, the Fourth Circuit didn't get to the merits of the second-hand smoke study; it just concluded that the EPA's report isn't subject to judicial review because it's not final agency action within the meaning of the Administrative Procedure Act. Basically, if former EPA Administrator Carol Browner had said, "I think second-hand smoke is a carcinogen," you can't sue her for it; if she tries to regulate you based on that report, then you can sue if the report is somehow defective. The EPA report, which by statute (the Radon Act, not to be confused with Rae Dawn Chong) had no direct legal consequences, was more like Carol Browner talking. The EPA report has been widely criticized as being junk science, and it probably is; the Fourth Circuit just says that though "[s]uch policy statements" may have huge effects in practice to the extent third parties take them seriously, they "are properly challenged through the political process and not the courts."

  • As for the airline case, the "accident" wasn't the presence of second-hand smoke but the stewardess's failure to seat the guy elsewhere when his wife told her he had a respiratory condition. The stewardess's conduct was "unexpected and unusual in light of industry standards," which is what it takes to establish an "accident" in the world of the Warsaw Convention (which governs liability for airline injuries). Now in an ideal world, an airline should be able to offer an "I-won't-reseat-you-if-you're-asthmatic" policy, and it should be able to contract out of the accident liability provision of the Warsaw Convention, but those are big issues that go beyond second-hand smoke. In the current tort regime, there's nothing clearly wrong about this opinion.

So the tobacco industry has to live with the continued existence of an EPA report that may persuade many people to regulate (or at least be less sympathetic to) second-hand smoke, which is unfortunate insofar as its portions on the cancer risk of second-hand smoke are sketchy.

And an airline (not the tobacco industry) has to pay damages in a second-hand smoke case, though the second-hand smoke angle isn't that important here. I don't think anyone denies that heavy second-hand smoke can kill severe asthmatics, and anyway, if the stewardess had reseated the passenger further away from the smoke, there might be no liability here. All in all, doesn't seem like a huge deal.


THE BOND MOVIE: The North Korea connection is revealed in the pre-title sequence. Whether you want to see the movie or not depends on how much you like the Bond genre. Perhaps you should watch Goldfinger again instead.


HELLO SASHA: I have not yet seen the new Bond film. And now that you've told me how it ends, I'm not sure it's worth my time. Thanks. Thanks a lot. Now to return the favor, let me save you some time. Don't go see the next two Lord of the Rings flicks. Why spend all that money on tickets if you know that Frodo will eventually destory the One True Ring in the fires of Mt. Doom, thereby saving Middle Earth? Oh yeah, and Strider is really Aragorn, the king of men in Middle Earth.


DEMOCRACY IN THE MIDDLE EAST: In his September 12th speech at the United Nations, the President declared that the United States is committed to the creation of a democratic Middle East. This statement provoked an extensive and detailed debate (in one corner of the blogosphere) on the prospects for democratization in the Middle East. The optimists argued that American power has the potential to transform the Middle East just it as it did Germany and Japan. The pessimists responded that Islamic culture is a barrier that no American commitment can overcome.

Both sides made strong points and learned a lot, but no consensus was reached. As the participants approached the limits of their knowledge and the debate began to wind down, I proposed that we resume discussion in the late autumn after the publication of the Journal of Democracy's special issue on democracy in the Middle East. The issue is now out, so let the games begin.

(Unfortunately, the contents are available online only to subscribers. Most universities have subscriptions, however. If you live in the real world, you can probably afford the eight bucks for an actual printed copy of the journal.)

Where to begin? With Iran, of course. Not, however, with the ongoing student protests or even the election of Iran's reformist president, Mr. Khatami. Instead, I want to begin with the fall of the Shah and the rise of the Ayatollah Khomeini. This revolution has become the paradigm on which the argument against democratization in the Middle East rests. Sometimes, the presence of the Iranian paradigm is explicit, at other times not. If one strips the revolution down to its fundamentals, one can describe it as in this manner:

The enduring rule of a secular, brutal and pro-American regime led to widespread resentment among the masses. In the absence of a moderate alternative to the ruling regime, the masses accepted the violent message of fudamentalist Islam as the possible response to government repression. When American support for the regime wavered, the masses enthusiastically supported an Islamic revolution. After taking power, the clerics dedicated themselves to promoting fundamentalism throughout the Islamic world as well as sponsoring extensive terrorist actions that targeted both Israel and the West.

Is there any reason to believe that if the United States presses for reform in Saudi Arabia, Egypt or any of its other dictatorial client states, the result won't be the same as it was in Iran? In spite of current indications that Iran is headed in a democratic direction, I do not hesitate to admit that the United States cannot afford to permit similar revolutions to happen elsewhere. If such revolutions took place simultaneously, there is every reason to believe that the new regimes would launch a massive campaign of terror while also promoting additional revolutions in neighboring states. Moreover, the chance that one of these regimes would develop weapons of mass destruction -- and then distribute them to both state and non-state actors -- would be extremely high. If all this were to happen, one would have to say that the United States had lost the war on terror.

In arguing for democracy in the Middle East, I take on myself the burden of showing that the Iranian paradigm is a misleading indicator of what would happen if the United States were to commit itself wholeheartedly to democratic reform. Thus, I cannot make my case in general terms but must instead present strong empirical evidence that the differences between the current Arab dictatorships and pre-revolutionary Iran are greater than their similarities. I don't know if I will succeed, but I am willing to try.

Stay tuned...


JUSTICE PREVAILS: The Institute for Justice, where I worked two summers ago, is on a roll these weeks:

  • On December 6, the Sixth Circuit struck down the Tennessee casket monopoly (in what IJ's press release calls the "first federal appeals court victory for economic liberty since it was gutted by the New Deal").

  • On December 10, a federal district judge in New York enjoined the state of New York from enforcing its ban on direct shipments of wine to consumers by out-of-state wineries. (I like the result, but I'd be interested to see more on why this isn't protected regulation under the 21st Amendment.)

  • And yesterday, a New Jersey Superior Court judge ruled that the state's civil forfeiture law, which lets prosecutors and police "keep the money and property confiscated from individuals through the state’s civil forfeiture law," violates the Due Process clauses of the U.S. and New Jersey constitutions.

Well, all of these decisions are appealable (and I suppose they all will be appealed), so don't celebrate too hard just yet, but I'm happy anyway.

UPDATE: On alcohol regulation and the 21st Amendment, see Brandon Denning's Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-first Amendment, and State Regulation of Internet Alcohol Sales, much worth reading. His conclusion: the 21st Amendment was meant to protect the rights of states to regulate interstate alcohol sales in precisely this way, which would otherwise violate the Commerce Clause. But, Brandon says, courts have essentially eviscerated this part of the 21st Amendment -- good for economic liberty but bad interpretation of the constitutional text. I'd still be willing to see whether anyone is willing to defend the opposite side of the debate -- that the 21st Amendment doesn't give states license to violate the Commerce Clause and therefore that IJ is right on this issue.


LOTT & THOMAS: Richard Brookhiser makes an interesting connection between the Lott controversy and Justice Thomas' recent comments on cross burning.


JUDICIAL IDEOLOGY. The piece that Orin mentions two posts below seems to be pitched as a plea to Senators not to worry too much about the ideology of judges they are asked to confirm. My question is why this advice isn’t pitched to the President. If ideology is of so little consequence in a court of appeals judge, there is no good reason for Bush or any other President to appoint judges who have strong ideologies, or even judges who are thought to be Republican types. Evidently the people who work in the White House don’t subscribe to such a view; evidently they think that ideology can make a difference worth worrying about, since it has informed their selection of judges. So maybe neither the White House nor the Senate should worry about ideology, but if the White House does worry about it, one can hardly blame the Senate for worrying about it as well. Whether ideology matters is at bottom an empirical question with an unsettled answer. If your enemy is convinced that it does, it would be risky to assume that it doesn’t.


THE UN-REALISTS: From the end of the Second World War until the mid-1980s, a cadre of scholars known as "realists" dominated the discipline of international relations. Realists insisted that in the struggle for international dominance, power balances power and that conflict is inevitable. While their stranglehold on the discipline began to relax for a complex set of reasons, the decisive blow to their influence was the United States' bloodless victory over Soviet Communism and subsequent consolidation of its role as the lone superpower. The idea that one "pole" in a "bipolar" world might watch passively as its empire crumbled before its eyes was inconceivable to scholars of the realist persuasion. Even more inconceivable was the idea American dominance represented anything more than a "unipolar moment" in a world headed toward its natural state of "multipolarity".

Among active scholars, the most prominent realists are Stephen Walt of Harvard's Kennedy School and John Mearsheimer of the University of Chicago. In the early 1990s, both Walt and Mearsheimer took the bold step of using realist theories of international relations to forecast the political trends of the near future. Walt predicted that NATO would dissolve in the absence of a Soviet threat. Mearsheimer predicted that Europe would return to the competitive power-balancing system of the 19th century rather than continue its march toward a continental union. While such predictions have severely limited the appeal of realism to the current generation of IR graduate students, realism continues to exert a strong influence in the academy because many of its most prominent advocates -- including Walt and Mearsheimer are still relatively young.

One positive aspect of the realist tradition is its practitioners' commitment to using their knowledge to benefit policymakers. As such, Walt, Mearsheimer et. al. have consistently published provocative essays in policy-oriented journals such as Foreign Affairs and Foreign Policy. In fact, Walt and Mearsheimer are the co-authors of an extended essay in the current issue of Foreign Policy which argues that the US is on the brink of waging "An Unnecessary War" against Saddam.

The foundation of their argument is that -- contra Kenneth Pollack -- Saddam is eminently deterrable. However, as is so often the case with academicians-turned-policy analysts, they push their theoretical premises too far. Consider the following passage:
But what if Saddam invaded Kuwait again and then said he would use nuclear weapons if the United States attempted another Desert Storm? Again, this threat is not credible. If Saddam initiated nuclear war against the United States over Kuwait, he would bring U.S. nuclear warheads down on his own head. Given the choice between withdrawing or dying, he would almost certainly choose the former. Thus, the United States could wage Desert Storm II against a nuclear-armed Saddam without precipitating nuclear war.
From a strict logical standpoing this argument is not a bad one. By the same token, one could have argued at the height of the Cuban Missile Crisis that according to strict logic, nuclear war was impossible. Yet no one knew that then and no one knows it now. Real life introduces so many uncertainties into the policymaking process that even the most rigorous predictions derived from the most rigorous theoretical frameworks cannot predict what will happen if there were a nuclear showdown in the Middle East.

Beyond such concerns, it is instructive to take note of what Walt and Mearsheimer leave out of their analysis. First of all, they do not consider the what impact it would have on the credibility of the United Nations if Saddam were found, once again, to have blatantly violated its unanimous resolution calling on him to disarm. While it is not hard to argue that the UN has proven to be more of a hindrance than a help in getting Saddam to disarm, the institution does play a critical role in postwar situations, such as those in Bosnia, Kosovo, Afghanistan and (presumably) Iraq. Moreover, as opponents of using force, Walt and Mearsheimer ought to recognize that the UN is the one institution that has held the United States back from declaring a war they believe to be both dangerous and unnecessary. Unless Walt and Mearsheimer believe that this is the last time the United States will seek to resolve a crisis through the use of force, they should think long and hard before recommending a course of action so devastating to the credibility of the United Nations.

On a related note, Walt and Mearsheimer fail to consider the possibility that a nuclear-armed Iraq would play a leading role in spreading weapons technologies to as many other anti-American governments as possible, a la North Korea. (The authors do consider the possibility that Saddam would provide Al Qaeda with weapons of mass destruction and dismiss it out of hand. Again, their case is strong on logical grounds but doesn't seem to reflect reality.) But if the United States doesn't punish Saddam for developing chemical, biological and nuclear weapons, what would prevent Syria, Libya, Iran, etc. from developing them as well? While, according to Walt and Mearsheimer's logic, such rogue states could be deterred as well, the risk of a nuclear conflict rises precipitiously with each additional state that has such weapons. Besides, if India and Pakistan went to the brink of war despite having nuclear weapons, there is no reason to think that keeping the peace in a nuclear Middle East would be an easy task at all. And in whose lap would the responsibility for keeping the peace in such a situation fall? You know who. Trigger-happy Uncle Sam.


JUDGES AND POLITICAL DECISIONMAKING: Howard J. Bashman of the must-read How Appealing blog writes the following about appellate judges in an essay in the Legal Intelligencer:
Somewhere between 60 percent to 80 percent of all appeals are easily resolved because there is a clear right answer that the law compels. In the bulk of the remaining cases, while the right answer may not be as clear, the proper resolution becomes apparent once a judge examines all relevant authorities and considers the questions presented in the context of the overarching framework of existing law.

True, each year, federal intermediate appellate judges do confront a small number of cases in which the correct result is seriously in doubt. Yet such especially difficult cases do not always, or even most of the time, involve pressing social or political issues. And even in such a case - an appeal presenting an intractable, politically charged issue - who believes that an intermediate appellate judge should resolve the matter on the basis of his or her own personal or political policy preferences instead of relying whenever possible on more traditional tools of judicial decision-making?
I much agree with Howard's point, and have voiced the same view in the past. I wonder, though, how much of our common views derive from having served as law clerks on the same court, the U.S. Court of Appeals for the Third Circuit? As a law clerk, it seemed to me that political ideology rarely played an important role in the judges' decisions. Some of the Third Circuit judges had liberal views, and others had conservative views, but all of them showed a strong commitment to trying to resolve cases correctly, without letting their own politics interfere.

     But is the Third Circuit the except on? When I speak with friends who clerked on other circuits, they often report very different experiences. A good number of former appellate clerks have stories of judges voting quite predictably along political lines. So in the end, I agree with Howard, but note that my views reflect my experience clerking for a particular judge on a particular court.


DEAD HORSE BEATEN: Amidst the avalanche of posts about Trent Lott, a critical question has been overlooked: What has Strom Thurmond himself said about Trent Lott's remarks? There is nothing on Thurmond's Senate website. If Thurmond wants to be remembered as he is now and not as he was then, he should speak out before his time in Washignton ends.

Oh, and if you really do want more links to articles and posts about Lott, go to Instapundit.


ANTI-SEMIOTIC IN EFFECT: Second-hand from The Onion. (But see here and here for mistaken non-joking occurrences of this phenomenon, and see here and here for references to actual anti-semioticism.)

UPDATE: Reader David Haan points out this article, where pro-Palestinian types are protesting WordsWorth, the bookseller, which supposedly "sells words but suppresses words."


ANTI-SEMITIC IN EFFECT: How about just "anti-war protesters help Saddam"? "Pro-X," no matter how you qualify it, still connotes that you agree with X's agenda. Calling someone "pro-Saddam in effect" or "anti-Semitic in effect" still sounds like you're calling him "pro-Saddam" or "anti-Semitic," and adding "if not in intent" just makes the whole thing incoherent. "Anti-Semitic," like it or not, has come to mean "disliking the Jews as Jews." Harming the Jews as a class, i.e. supporting a policy that ends up transfering money from Jews to non-Jews, is morally neutral and depends on how they're harmed and why you like the policy. Why add the extra baggage of the name of anti-Semitism?

If we just said "people who favor divestment from Israel are hurting the interests of Jews" or "people who protest the war are helping Saddam," then lots of things clear up. Then we might get into a discussion about why you should care about hurting the interests of Jews (I'm inclined to think you shouldn't care as long as you have a defensible reason for divesting) or why you should care about helping Saddam (I'm inclined to think you should care, even if you have a defensible reason for opposing the war).


I PROMISE THAT THIS WILL BE MY LAST POST ON LOTT barring some striking new revelation. I just wanted to laud President Bush for speaking up:
"Any suggestion that a segregated past was acceptable or positive is offensive and it is wrong," Bush said. "Recent comments by Senator Lott do not reflect the spirit of our country."

Glenn thinks that Lott will announce tomorrow that he's stepping down as Majority Leader-elect. That would make sense -- as Kaus says, always announce humiliating news on Friday ...

Oh, and Sasha: point taken. Thanks to your fellow Harvard Law student (and my acquaintance from his days as a Yale undergrad) Henry Whitaker, for making the same point in an email.


IN SEPTEMBER, HARVARD PRESIDENT LARRY SUMMERS said that Israel divestment campaigns were "anti-Semitic in their effect if not in their intent." I think that wording is far preferable to "objectively anti-Semitic." So maybe the language Eugene objects to should be changed simply to something like "anti-war protesters are pro-Saddam in effect if not in intent."


"OBJECTIVELY PRO-SADDAM": There's some controversy about whether it's proper to call people "objectively pro-Saddam" or "objectively on [Saddam's] side" because their actions in fact help Saddam, even if they aren't intended to. It seems to me that the term shouldn't in fact be used that way.

     The phrase "pro-X" in my experience means "intentionally supporting X," and the term "objectively" doesn't clearly negate that meaning. Here's an example: Imagine someone who supports strong Fourth, Fifth, and Sixth Amendment protections, because he thinks that they're important to protect the innocent, and prevent the government from becoming tyrannical; but imagine that applying this protection in some case would let a criminal go free. I don't think it would be right to call the person "pro-criminal," or even "objectively pro-criminal" (unless the person really does back constitutional protection because he wants criminals to go free). This is so even if exploiting constitutional protections is "a key element in [the criminal's] strategy" (as it might well be for the mafia or other groups that regularly try to take advantage of the limits on government power).

     Likewise, people who support First Amendment protections even for Klansmen and Communists aren't therefore "objectively pro-KKK" or "objectively pro-Communist," whether or not taking advantage of First Amendment protections is "a key element in [the organization's] strategy" or the "key tool of a nasty [political movement]." People who opposed the Vietnam War weren't therefore "objectively pro-Viet-Cong" (or at least many of them weren't), even though U.S. opposition to the war did help the Vietnamese Communists win. I think we'd even hesitate to describe them as "objectively on the Viet Cong's side," or people who support strong Fourth Amendment protections as being "objectively on the criminal's side." They might agree with the Viet Cong or the criminal on this one particular and very important issue (the U.S. should pull out of Vietnam, the police shouldn't search this house for evidence of crime), but not on most other issues (which is what "on X's side" tends to mean).

     These examples, I think, are evidence of my claim about usage: "pro-X" implies actual sympathy with X, and not just a course of action, animated by independent considerations -- whether they be views of international law, pacifism, isolationism, pragmatism, or what have you, whether misguided or not -- that happens to play into X's hands (and this is still true, though less so, of "on X's side"). "Pro-X" means this quite strongly, and thus triggers understandable emotional reactions, both among listeners and among the target; and these reactions aren't neutralized by the presence of the qualifier "objectively." One could imagine a time when "objectively pro-X" means something quite different from "pro-X" (just as, say, "apparently pro-X" or "facetiously pro-X" or "nominally pro-X" means something different from "pro-X"), but I don't think that time has arrived.

     So it seems to me that "objectively pro-Saddam," used to describe people who dislike Saddam but who nonetheless oppose, say, a war against Iraq (and I am certainly not in that category myself), is somewhat unfair, and probably needlessly incendiary. The point -- that they're playing into Saddam's hands -- is worth making, for various reasons. But it seems to me that it's best made in other ways.


QUESTION FOR DAVID: Hello David, my fellow blogger. Tell me, didn't James Bond already clear up that whole North Korean thing in the recent movie? Or am I confusing him with Jimmy Carter?


JEWS AND BAPTISM YET AGAIN: I fully agree with Eugene on this and add just two minor points. First, I actually find it somewhat endearing that Mormons are concerned enough about my erstwhile soul to try and protect it in a non-intrusive manner after my death. Other religious groups are not so considerate and instead seek to intimidate the crap out of you or otherwise confront and demean you while you are alive in a supposed effort to save your soul. I have my doubts about the true motives of the hell-and-brimstone types, but the Mormons seem perfectly genuine to me. At worst it is no-harm, no-foul; at best they do me a great service.

Second, I would quibble with the comment by Ms. Hasoffertt (quoted in Eugene's prior post) that the reason we require consent for organ donation is to protect the memory of the dead. I think it is instead to protect their property and the property of their heirs. While the law often does not call the interest in the body "property," as a practical matter, that is exactly what it is. My past writings on the subject can be found here. Of course, symbolic baptism performed by the mere reading of a name has no effect on anybody's property.



UPDATE: This post "spark[ed] a postmodern dance of words that took up much of what might have been a productive workday for" reader Seth Michaels. "Ontology recapitulates philology," he says, "makes a much more overwhelming assertion [than the recapitulation law of embryonic physiology]: that the very structure of reality -- the nature of existence -- is but a reflection of linguistic systems, and indeed specifically of ancient written systems and ancient literature. Derrida would be proud."


MORE MORMONS: In other news, my friend Nate Oman, a Mormon, responds to Eugene's post about Mormons, basically agreeing, and clarifying points both about Mormon church hierarchy and discipline and about Mormon theology.


MORE JOHN LOTT, LESS TRENT LOTT: I agree with everyone else that Trent Lott should step down as Majority Leader, though Josh, in his own statement below, mistakenly lists Lott's Bob Jones amicus brief as one of his sins. Bob Jones University prohibited interracial dating; the IRS challenged its tax exemption on the grounds that the tax-exempt institutions statute should be read to include an exception for acts that are "contrary to public policy" (the tax-exempt institutions statute, as written, has no such exception), and that racial discrimination is so contrary to public policy that BJU has to lose its tax exemption. The IRS won in the Supreme Court, but the decision was wrong, wrong, wrong, and Trent Lott was right to file an amicus brief. (That is, there are racist and non-racist reasons to favor BJU in this case, and there were no quotes in the article linked above to suggest that Lott had racist reasons. This was about tax policy, the First Amendment, and what private institutions should be allowed to do with their resources.)

Not that I feel especially like defending Trent Lott -- I haven't heard anything else good about him recently -- but I definitely don't want to defend the awful Bob Jones decision just so I can increase my list of bad things about Trent Lott.

UPDATE: My friend Henry Whitaker, who has no blog yet, has also written to Josh on this. Also, John Rosenberg makes similar points on his blog.


SHOULD LIBRARIANS DESTROY RECORDS OF LIBRARY USE? Adam Clymer has an article appearing in today's N.Y. Times discussing a conference for librarians about responding to law enforcement court orders for records of library use. The speakers at the conference agreed that there was no evidence of law enforcement abuse of its powers to access library records. The speakers also agreed that librarians should comply with valid court orders. "But they offered one consistent piece of advice," Clymer writes:
the fewer records that were kept, the less information the government could see. Even necessary records should be promptly destroyed after use, they said.
That's perfectly legal. Laws such as the USA Patriot Act generally address when the government can obtain a court order to compel a record-holder to divulge records that they happen to have in the ordinary course of business. Such laws do not require the keeping of any particular records, and permit the record-holders to destroy records they may have so long as they have not yet received a court order. In other words, the law allows record-holders such as librarians and Internet service providers to purposely keep few or no records and destroy what records they have to make it difficult (if not impossible) for the government to use its surveillance powers.


MEDIA BIAS: This is one of my favorite topics, and I have posted extensively on it over at OxBlog. Often, I take apart coverage of the Israeli-Palestinian conflict, which seems intent on portraying the Israelis as being Milosevic-esque thugs.

Take today's headlline for example: "Israel Kills Five Unarmed Palestinians in Gaza". Sounds like the IDF opened fire on some innocent old ladies, no? Then you read the article and find out that Israeli forces had reliable intelligence predicting an illegal night-time border crossing. When the IDF detected movements near a border fence in Gaza, they opened fire. A daylight patrol found five Palestinian corpses unarmed but with ladders. Possibly, these were just migrant laborers. Or not. Either way, a better headline would have been: "Israeli Soldiers Kill Five Infiltrators".

The bottom line is this: Middle East headlines -- from the Post, the TImes, Reuters, AP, etc. -- reflect almost exclusively Palestinian accounts. While the Israeli version of events is always included, you usually have to scroll down pretty far to get it. Moreover, Western correspondents seem to make no efforts to provide independent verification of either sides' claims. Thus, even regular readers of the news find themselves left with nothing more than a mass of accusations. If any of you know any good articles or books that address this problem please let me know.

For those of you interested in general scholarship on the media and politics, a good place to start is Timothy Cook's Governing With the News. It's a solid survey of the literature and has comprehensive footnotes that should help you find specialized information on whatever your particular interest is.

Last but not least, for those of you interested in evidence of a conservative media bias, check out this column by Spinsanity.


DOUBLE CRISIS: We now think that Al Qaeda has possession of Iraqi chemical weapons. But don't forget North Korea, which has just announced the reactivation of its Yongbyon nuclear plant. This announcement involves some definite chutzpah, since it was just yesterday that allied ships discovered a shipment of North Korean missiles headed for Yemen. But chutzpah seems to be an indispensable part of North Korean diplomatic culture. That is why OxBlog speculated yesterday that the Bush administrations most recent threat of preemptive strikes against weapons facilities may have been directed at North Korea, not Iraq.

North Korea's latest initiative fits the good cop/bad cop pattern that OxBlog identified some time ago. The only problem is that the North Koreans are not that proficient at playing the game. For example, the North's latest threats will no doubt have an impact on South Korea's presidential election on Dec. 19. If the behavior of other dictators is any indication, Kim Jong Il probably believes that his tough talk will benefit softline candidate Roh Moo Hyun. Of course, its actual effect will be to benefit hardliner Lee Hoi Chang. If Lee wins, Kim will only find himself confronted by a even more resolute Bush administration.

UPDATE: The Weekly Standard posts an article Bush's embarrassing and dangerous decision to let North Korea ship missiles to Yemen.


GOOD MORNING! Right now it's just after 9am on the East Coast, so many of you are probably just settling in to your chairs with some hot coffee and a hankering to do something other than work. I am at about the same point in my day, even though it's just after 2pm here in England and I am drinking tea.

My name is David and along with Josh I am one of the writers over at OxBlog. As Eugene mentioned, Josh and I will be guest-blogging while Eugene is on the road. As Josh said, it's an honor.

At the moment, I am a third-year graduate at Oxford in International Relations. Unsurprisingly, most of my posts are on foreign policy rather than law. I hope you like what you read. If you want to contact me, just send you mail to


The Bush administration has received a credible report that Islamic extremists affiliated with al Qaeda took possession of a chemical weapon in Iraq last month or late in October, according to two officials with firsthand knowledge of the report and its source. They said government analysts suspect that the transaction involved the nerve agent VX and that a courier managed to smuggle it overland through Turkey.

And there's more on the Iraq-al Qaeda connection here.


PICKING OF NITS. Eugene was right yesterday to praise this Dahlia Lithwick Supreme Court dispatch on oral arguments in Virginia v. Black -- the case asking whether a Virginia law prohibiting cross-buring with "intent to intimidate" violates the First Amendment. But the philosophy major in me wants to quibble with just one line. Lithwick writes, "Then Justice Stephen Breyer begins to wax ontological with the claim that 'the First Amendment doesn't protect words. It protects the use of words for symbolic purposes '"

Ontology, to borrow a definition from an online philosophical dictionary, is the "Branch of metaphysics concerned with identifying, in the most general terms, the kinds of things that actually exist." The word Lithwick was looking for was most likely semantic (having to do with the theory of how signs or symbols convey meaning). She could also have gotten away with hermeneutic (having to do with the study of interpretive methodology). But not ontological.


ABOUT TIME! The New York Times finally weighs in on the Trent Lott affair, with its lead masthead, "Fire Trent Lott." I completely agree, as I noted yesterday. Making a statement like that once could be a slip of the tongue, and an apology would have done. But given that he's made similar statements before, has a long history of involvement with the disgusting Council of Conservative Citizens, and in 1981 filed an amicus brief before the Supreme Court arguing that Bob Jones University should not lose its tax exempt status just for a little thing like prohibiting interracial dating, I think we're warranted in assuming that his statement was more than a gaffe. Either it represents his true feelings, or it is part of a sustained pattern of making cynical appeals to a racist constituency. Either way, Trent Lott must go. In my post yesterday, I suggested several ways you can contact your Republican Senators or the RNC. You can also contact them via this online form, set up by the Center for the Advancement of Capitalism.

The NYT masthead, by the way, is also uncharacteristically nice to the President, noting that, "No one has put more effort than George W. Bush into ending the image of the Republican Party as a whites-only haven. For all the disagreement that many African-Americans have with his policies, few can doubt Mr. Bush's commitment to a multiracial America." This is a nice contrast to Bob Herbert's shrill column today, suggesting that the entire GOP consists of reactionaries pining for the days of Jim Crow. Not a word from him about all the conservatives who immediately criticized Lott, and not a word about the Democrats' own racists, white (Robert Byrd, anyone?) or otherwise (Cynthia McKinney, Jesse Jackson, Al Sharpton, anyone?) Republicans shouldn't use past instances of Democratic racism to try shifting blame from Lott, but neither should they allow people like Herbert to tar the entire party as racist.


THANKS, EUGENE! David and I want to thank Eugene for inviting us to guest blog here while he's out of town. It's an honor to be here -- and we hope you like our writing.

Wednesday, December 11, 2002


WILL BE ON THE ROAD, AND CHECKING IN ONLY INTERMITTENTLY, UNTIL MONDAY. Responses to e-mail will be even slower than usual.


GETTING STARTED WITH JAZZ: Friends occasionally tell me that they are interested in jazz but don't know much about it, and want to know what they should buy to try it out. Here are a few albums that I think fit the bill; they're both easy for beginners to understand and also highly respected by the pros. In no particular order (with the name, title, label, and year of the recording):
Lee Morgan-- The Sidewinder (Blue Note 1963)
Miles Davis-- Kind of Blue (Columbia 1959)
Herbie Hancock-- Maiden Voyage (Blue Note 1965)
Hank Mobley-- Soul Station (Blue Note 1960)
John Coltrane-- Giant Steps (Atlantic 1959)
Dave Brubeck-- Time Out (Columbia 1959)
Horace Silver Quintet-- Song for My Father (Blue Note 1963/4)
Wayne Shorter-- Speak No Evil (Blue Note 1964)
Bill Evans-- Waltz for Debby (Original Jazz Classics 1961)
For more, I'm a big fan of the Penguin Guide to Jazz by Richard Cook and Brian Morton. I've often bought CDs based on their recommendation alone, and am never disappointed.


"HAPPINESS IS A WARM GUN": Reader Jim Thomason mentioned in passing John Lennon's "Happiness Is a Warm Gun," and this reminded me of my enduring puzzlement about what that line means.

     "Happiness is a warm hug" or "a warm bowl of soup" or even "a warm teddy bear" I can understand -- those are things that are more comforting when they're warm. But when is a gun warm? When it's just been fired. Is Lennon talking about deriving happiness from killing someone? I can see why that might work in, say, a song about murderous jealousy, but that doesn't seem to be what this song is about:
She's not a girl who misses much
Do do do do do do do do
She's well acquainted with the touch of the velvet hand
Like a lizard on a window pane.

The man in the crowd with the multicoloured mirrors
On his hobnail boots
Lying with his eyes while his hands are busy
Working overtime
A soap impression of his wife which he ate
And donated to the Nation Trust.

I need a fix 'cause I'm going down
Down to the bits that I left uptown
I need a fix cause I'm going down
Mother Superior jump the gun
Mother Superior jump the gun
Mother Superior jump the gun
Mother Superior jump the gun.

Happiness is a warm gun
Happiness is a warm gun
When I hold you in my arms
And I feel my finger on your trigger
I know no one can do me no harm
Because happiness is a warm gun
Yes it is.
Now of course it might be the case that this is all meant to be absurdist, pointless, or influenced by the chemicals referred to in the line "I need a fix 'cause I'm going down." But if there is a Meaning here, I'd love to know it.

UPDATE: Reader Sam Shimek writes in all the way from China, with the following theory:
Way back in the hippie days, just after that particular Beatles album came out, I was told that a warm gun meant a full, ready syringe (the drug solution was heated before drawing up into the syringe, and you can see the "gun-syringe" analogy).
Now that makes sense (though it doesn't mean it's right).

FURTHER UPDATE: Some other readers suggest that the gun is a penis; I naturally thought about this (look, sex is always the first meaning that people suggest), but was stymied by the "warm." There was a suggestion related to that, too, but I'm still not persuaded, and I'd like to hear more by way of facts -- or even rumors -- rather than just speculation. But . . . .

IN ANY EVENT: Whatever Lennon might have meant, it seems to me that "Happiness is a Warm Gun," a pretty common headline or label for items related to gun buffs, isn't quite right. For them, happiness may be a gun close to hand -- but they'd be just as happy keeping it cold (because they don't have to use it, or at least don't have to shoot it) than making it warm (by actually shooting).




MORE ON JEWS AND BAPTISM: Reader Corinna Hasofferett writes:
I do not know how it is in other traditions but the Jewish thought does not discriminate between the dead and the living: both deserve the same respect. Now if a person has never chosen to become a Mormon in her/his lifetime, it means that was their sovereign choice which should be respected even more after their death since then they, or their memory, cannot go to court and sue the ones infringing on their basic rights. I am an atheist in life and I won't choose to have my memory blemished by anyone taking the freedom to meddle with my choices in life, neither with my memory afterlife. Not only this but the Jewish tradition and law forbids missionary activities, in keeping with the same values.

In the case of the Jewish Holocaust victims, the obligation to respect Memory is even greater as they were murdered because they were Jews and secondly because it may seem as an allusion that their only salvation would be the baptism, as if being a Jew was a sin - hence serve as a sanctification/justification of their murder.

It is for this same reason that people are asked to indicate in writing if they agree to donate any of their organs to medicine. Such an indication or a close relative's agreement (based on his knowledge of the donor's attitude and moral values) is imperative. Memory is the only human "organ" which might last longer than her or his physical body, isn't"t it?
I guess this cuts to the heart of what I disagree with: When some total strangers engage in a ritual that refers to some dead person -- one that doesn't involve the person's body, or otherwise affect the person in any way -- I don't see anything "disrespectful" or violative of the person's "basic rights." Where does anyone get the "basic right" not to have other people do this?

     If the person or his relatives thought that the ritual did somehow affect the person's soul, or anything along those lines, then that might be troublesome. But neither religious Jews nor atheists believe in Mormon theology (or else they probably would want to be baptized by the Mormons, no?). As far as religious Jews and atheists are concerned, the Mormons' conduct is completely futile. There's no "meddl[ing]" with anyone's "choices," just like my muttering under my breath "abracadabra, John F. Kennedy, foobar xyzzy y2 plugh" doesn't meddle with John F. Kennedy's choices -- it has zero effect on his life, afterlife, or anything else.

     As to "blemish[ing]" the person's "memory," that's a metaphor that strikes me as not really corresponding to any reality here. Perhaps spreading lies -- or even unpleasant truths -- about a person might "blemish" a person's "memory" in the sense of leading survivors to think the less of that person (the conventional meaning of the metaphor). And again, perhaps if the survivors believe that the Mormon baptism has some spiritual effect, then this might harm their memory of the person (for instance, if one thought -- which I think no-one does -- that the baptism consigned the dead person to hell, then the memory might be affected by the belief that the person is now in hell). But the whole point is that the survivors don't believe in Mormon doctrine, and think the baptism does absolutely nothing. So why the metaphorical "blemish" on "memory"?

     Of course, the baptism does have one effect: It asserts to those who know about it that the Mormons think their religion is better in some way -- not just than Judaism but than all other religions. And I know some people find such assertions to be rude or offensive (though I still don't see how they violate rights, blemish memory, or meddle with choices).

     But I just don't believe that this is indeed rude or offensive, just as it isn't rude or offensive for atheists to believe that there is no God, and to communicate their message to the world by trying to convert people to this belief. People are entitled to believe that they have some key to the universe or to God or what have you, and entitled (as a matter of law, morals, and manners) to try to calmly and quietly persuade others of this belief -- just as they are entitled to do the same as to political beliefs. Others are equally entitled to be unpersuaded. No-one is injured -- except those who have chosen to accept theological disagreement, and a desire to persuade, as an insult.


IF THE MORMONS WANT TO BAPTIZE ME, THEY CAN GO RIGHT AHEAD: I just don't see the objection to Mormons posthumously baptizing people, even without their relatives' permission. According to an AP wire story, many Jews have objected to Mormons posthumously baptizing Holocaust victims:
Jewish and Mormon leaders have come to an agreement following the church's apparent violations of an agreement not to posthumously baptize Holocaust victims.

The agreement, which is scheduled to be released in the coming weeks, includes expunging the names of Jewish Holocaust victims from the church's baptism records, said the chairman of the World Gathering of Jewish Holocaust Survivors, Ernest Michel. . . .

[Researcher Helen] Radkey has been researching Jews included in the Mormon databases since 1999, when she found Anne Frank and her extended family listed as being baptized. "There shouldn't be one single death camp record in those files," Radkey said. . . .

Meanwhile, the founder and dean of the Simon Wiesenthal Center in Los Angeles reportedly called on the Mormon church to reign in its members if it is serious about its pledge to stop baptizing Holocaust victims.

"If these people did not contact the Mormons themselves, the adage should be: Don't call me, I'll call you," Hier said. "With the greatest of respect to them, we do not think they are the exclusive arbitrators of who is saved."

Mormons believe proxy baptisms give those in the afterlife the option of joining the religion. It's primarily intended to offer salvation to the ancestors of Mormons, but many others are included. . . .
I agree that if the Mormon hierarchy had made an agreement, they should stick to it -- but I don't understand why people should want them to make such an agreement, or care much about their breaking it.

     If you're Mormon, then presumably you'd want your relatives baptized. If you're not Mormon, then presumably you would think that some Mormon in some temple somewhere going through some ritual while mentioning people's names would be spiritually pointless. It would have no effect on the people, on their afterlives (if you think they have afterlives), on God, or on anything else. So what's the problem?

     The Mormons aren't forcing anything on any living person. They're not exhuming anyone's body. They aren't insulting anyone, except insofar as they're suggesting that their religion is the right one, and that people ought to want to convert to it -- and if that itself qualifies as an insult, then it seems to me that people are too easily insulted.




"SCREWY DATA," CARS, AND THE WALL STREET JOURNAL: Jack Shafer's Slate column today is an interesting look at possible problems in the way the Journal gathers data for its "Me & My Car" feature. No great scandal there, but if Jack's criticisms are right (and on first reading, they srike me as sound), this seems like an interesting cautionary tale for people who are interested in social science and the media, even the generally quite sophisticated segments of the media.


SAN FRANCISCO CHRONICLE: I just got a call back from someone at the Chronicle, who said that Rob Morse -- the author of the column mentioned below -- will include a correction in next Wednesday's column. Obviously, I don't know all the details, and won't know until next week, but I hope that the column will set the record straight.


A BIT MORE ON SEX AND GUNS: The post below reminded me of a line from Why Packing a Pistol Perpetuates Patriarchy, 8 Hastings Women's L.J. 351, 352 (1997)
Firearms are a source of male domination -- a symbol power and aggression. First, the gun is phallic. Just as sex is the ultimate weapon of patriarchy used to penetrate and possess women, the gun's sole purpose is to intrude and wound its victim.
Let's set aside the "sex is the ultimate weapon of patriarchy" point, and the "gun's sole purpose" point (which I wrote about several months ago), and let's focus on the "First, the gun is phallic." This isn't an argument, it's some weird appeal to mystical symbolism, or sympathetic magic. Are men now supposed to support banning things that are somehow "vaginal symbols," or "yonic"? Or what about mace or pepper spray -- should women oppose it because it injures people by squirting fluid at them? A funny way to reason about real-life public policy.


HATRED OF GUNS IS PRACTICALLY PSYCHOSEXUAL: Of course I have no reason to believe that this is in fact true -- I just made that up. But it sounds like a nice insult, no? And the very fact that it's completely unprovable and undisprovable makes it impossible for the other side to rebut -- better yet. Also, it's particularly nice if the group one insults this way is composed mostly of one gender, since then the sex link seems even more plausible, and more insulting. How about this -- "The Million Mom March's reliance on the nanny state is practically psychosexual." "Welfare recipients' fear of having benefits cut off is practically psychosexual." Just how are they going to disprove that? What a cool rhetorical device!

     I'm bringing this up because of another line from the San Francisco Chronicle column I mentioned below:
Gun lovers, naturally, are furious at Reinhardt, the "Ninth Circus Court" and San Francisco. The fear of losing one's guns is practically psychosexual.
Really? Might the fear of losing one's guns be based on, say, a desire for self-defense? Or skepticism about government power? Or affection for what one sees as American traditions, or the proper reading of the Constitution (whether or not that view of the Constitution is in fact correct)? Could one's opponents disagree with one's views because of a good faith difference of opinion about morality or practicality?

     Nah. If they disagree with me about the Constitution or gun control policy, they're obviously psychos and perverts.


SOME GREAT VISUAL GAGS; thanks to OxBlog for the pointer (though gags aren't all that they post about!).


GUEST BLOGGERS: I'll be on the road this Thursday and Friday, and not posting much; but Josh Chafetz (joshua.chafetz at and David Adesnik (ariel.adesnik at from OxBlog have been kind enough to agree to be guest bloggers and pick up the slack for those days. I always find their work to be very interesting and readable, and I think you will, too.


MORE ON TWO-CLAUSE AMENDMENTS: Reader Roger Sweeny writes:
What if the First Amendment began, "A well educated citizenry, being necessary to a free State,"? Would that allow Congress to pass a law restricting the freedom of speech if it decided the citizenry weren't well-educated?
The main point of my The Commonplace Second Amendment is precisely that this isn't just an idle hypothetical -- lots of state constitutional provisions of that era did have these two-clause constructions; for instance, consider the freedom of the press provision in the first Rhode Island Bill of Rights (enacted in 1842, since Rhode Island operated under its colonial charter until then):
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .
I won't reprise here all my arguments from my (relatively short) article, but my main point is that there's nothing odd about these constructions, and that thinking about these provisions can help us recognize how the Second Amendment should be construed.


EPITAPHS, EPIGRAMS, EPIGRAPHS, AND EPITHETS: Just ran across an amusing tidbit in a recent newspaper article, and a LEXIS search revealed about ten such references per year in other papers, including in the L.A. Times -- a certain insult, the newspaper said, "is considered a racial epitaph." Only if it's on a tombstone . . . .


RACE PREFERENCES IN UNIVERSITY ADMISSIONS, AND BEYOND: Tom Wood, one of the coauthors of the Prop. 209 California anti-race-preferences initiative -- and a very smart and thoughtful person -- has a new paper on what should be done about proposed admissions schemes that are facially race-neutral, but that are pretty clearly intended to get a certain kind of racial mix of students.

     I haven't read the paper, so I'm not sure whether I'd ultimately agree with Tom's analysis. But from my knowledge of Tom's work, I think that it should be quite valuable to people who are interested in the subject.


MUSCAT: My friend Nate Oman has a new blog, where he discusses a conversation we had yesterday evening (instead of studying for finals) about abortion. Other posts on A Good Oman are also worth reading.

P.S. Note that Nate is not related to the people at Aarons Bible University,

UPDATE: Apparently not everyone can get Aarons Bible University at Oh well, trust me on this, it's Aarons Bible University.


E-MAIL I JUST SENT TO THE S.F. CHRONICLE (to Rob Morse, to the Chronicle request-for-corrections e-mail address, and to the Chronicle Reader's Representative) -- we'll see what, if anything, they do:
Dear Mr. Morse, and dear editors:

I'm afraid that the "Gun lovers up in arms over ruling" column this morning was completely wrong in its characterizations of my views.

Here's what the column said:

"In the conservative National Review, constitutional scholar Eugene Volokh gave Reinhardt credit for his effort, but posed the question, 'Shouldn't courts read the Second Amendment as part of an evolving Constitution?'

"Thus we have the irony in the fight over blue steel: The liberal is a strict-constructionist, original-intent fundamentalist. The conservative is an evolutionist.

"Whatever it takes to win an argument. That's the law for you."

However, my National Review article did *not* endorse an "evolutionist." perspective. Rather, it tried to argue against the evolutionist perspective (the question that the column quotes was presented as something that someone else had asked me).

My article assumed that a "strict-constructionist, original-intent" perspective supported the individual gun rights position -- a view that I have consistently taken in my past writings, see, e.g.,;;; . My article then asked whether an "evolutionist" perspective should allow courts to *reject* the original individual rights meaning -- whether the original-intent pro-gun-rights view should be *set aside* on "evolutionist" grounds:

"Someone asked me yesterday, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?"

The article proceeded to explain that even under an evolutionist perspective, the result should be *pretty much the same as under an original meaning perspective* -- the individual rights view was correct under both approaches. (E.g., "An updated Second Amendment is thus at least as much an individual right as the original one.") But the article then went on to condemn the evolutionist view, concluding with the following:

"You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"'The very purpose of a Bill of Rights,' Justice Jackson wrote in the 1943 flag-salute case, 'was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.' Words to live by, it seems to me."

As I think you will easily gather, the first four sentences in the quote above were clearly facetious, intended to *condemn* the "evolutionist" perspective. And the last paragraph endorsed a focus on "the very purpose" of the Bill of Rights, and the need to stick with the rights as they are written and originally intended, not as government officials choose to "evolve" them.

So I think saying that I am an "evolutionist" on this issue is quite wrong. Saying that I will say "whatever it takes to win an argument" -- because I supposedly reject the "strict-constructionist, original-intent" position to which my conservative beliefs actually lead me -- is likewise wrong.

Incidentally, one other factual error: My National Review piece did *not* give Reinhardt credit for his efforts, and in fact began by assuming that "the Ninth Circuit was wrong." I do not object strenuously to this misstatement, because I did credit Reinhardt for his efforts in interviews with other reporters, which were quoted in newspaper articles. But this error further illustrates the lack of attention to detail in the way the column characterized my National Review piece.

I would very much appreciate it if you promptly and prominently correct the column, both in print and on the Web, to properly reflect the views that I actually took.

Sincerely Yours,

Eugene Volokh
Professor of Law
UCLA School of Law
(310) 206-3926


he nature of the material in question, rather than evidence. Although Boyd agreed with his interrogator that the material he tried to send was "pornographic child pornography," the majority concludes that, in the absence of any further evidence regarding the material, there was no way for the district court to decide what was meant by this phrase or what kind of material he i tended but was unable to send.
     . . . .
      I respectfully dissent from the reversal of the district court's application of § 2G2.2(b)(2). Boyd admitted to attempting to send "pornographic child pornography." Such an admission is, in my opinion, sufficient to support the district court's finding that he distributed material involving the sexual exploitation of a minor. In United States v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995), the Fifth Circuit upheld an enhancement for distribution pursuant to § 2G2.2(b)(2) where the only evidence before the district court concerning the nature of the material distributed was the testimony of a federal agent that the defendant's "bulletin board system included closed files containing pornographic material depicting children." I believe that the defendant's own admission that he attempted to send "pornographic child pornography" is even stronger evidence than that in Kimbrough. Under these circumstances, I cannot say that the district court's application of § 2G2.2(b)(2) was clearly erroneous. I would therefore affirm the district court's enhancement of Boyd's base offense level for distribution.
This was a highly fact-specific question, so I don't think it raises one obvious problem with dissents in majority opinions-- the possibility that a party will quote a legal conclusion found in a majority opinion and not recognize that it is actually a minority view, not the majority view. Still, this strikes me as a puzzling practice.


OUT-OF-CONTEXT QUOTES: Here's what a column in the San Francisco Chronicle today says, in part:
In the conservative National Review, constitutional scholar Eugene Volokh gave Reinhardt credit for his effort, but posed the question, "Shouldn't courts read the Second Amendment as part of an evolving Constitution?"

Thus we have the irony in the fight over blue steel: The liberal is a strict-constructionist, original-intent fundamentalist. The conservative is an evolutionist.

Whatever it takes to win an argument. That's the law for you.
Here is my quote, in context:
Someone asked me yesterday, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?
Then the rest of the article says that even if you read the Amendment under an "Evolving Constitution" theory, it should still by any objective standards be read as protecting an individual right -- and then concludes by roundly condemning the view that constitutional rights should be nullifiable by an "Evolving Constitution" approach:
You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.
Mighty odd reading of my article, seems to me.


LOTT & YUCKINESS -- THE CONNECTION: Robert George recounts the history of "insensitive" remarks by (soon-to-be-former?) Senate Majority Leader Trent Lott. Of note, Lott has spoken several times to the Council of Conservative Citizens, the sponsors of the offensive amicus brief discussed by Eugene here.

Tuesday, December 10, 2002


THE GREAT BIBLE SMOKEOUT? My friends at the HLS Federalist Society alert me to (for instance, check out, also known as Aarons Bible University. Note: this is not us, though they do have a Jews Information Desk.

UPDATE: A reader says that the link to blogpot "now leads to some mouse-trapped pain-to-get-out-of pages." So beware of the link above; don't click there if you're risk-averse.


THE RELATIONSHIP BETWEEN THE TWO CLAUSES: I'm on the run right now, and can't respond to Philippe in detail, but here's the short version: The justification clause (the first one) should indeed influence the interpretation of the operative clause (the second one), though it can't take away what the operative clause seems to me to clearly secure -- a right of the people, rather than of the states, the militia, or the National Guard. I have some tentative and not tremendously determinate thoughts on the proper scope of this influence in Part IV of my The Commonplace Second Amendment (73 NYU L. Rev. 793 (1998)); I can't claim for a moment that my thoughts yield a clear test for Second Amendment cases, but I hope that they can help in the search for such a test. (Recall how long it took between the time that the Supreme Court acknowledged that the First Amendment imposes some meaningful, judicially enforceable limits on government suppression of speech, and the time that modern First Amendment jurisprudence really began to come together.)

     I do think, though, that my proposal, though stated at a very high level of abstraction ("the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause"), has considerable support in the 1700s and 1800s legal rules of statutory construction -- a significant point when one is interpreting text written in the late 1700s.


WHILE YOU'RE ON THE SUBJECT.... In reply to Eugene's post below about the Second Amendment, I'll toss out this question: on your view, Eugene, does the preamble to the Second Amendment have any legal consequences at all? Or is your reading of the Amendment's meaning and implications the same as it would be if the preamble had not been included?


"WELL-REGULATED MILITIA": 1. Here's the argument in favor of the individual rights argument of the Second Amendment in a nutshell: The Second Amendment secures a "right of the people to keep and bear arms," the same language used in the First and the Fourth Amendments to refer to an individual right, not a right of the states or a right of the National Guard. Various late 1700s and 1800s sources, such as contemporaneous state constitutions and leading commentators treated it as an individual right.

     And the introductory clause -- "A well regulated Militia, being necessary to the security of a free State" -- doesn't contradict this, because "militia" also means something not far from "the people" generally. In the late 1700s, it meant pretty much all adult white male citizens age 18 to 45, the Supreme Court so interpreted the term in 1939, and it means much the same thing today (though of course without the race restriction, and, following the Supreme Court's 1970s sex equality decisions, without the sex restriction).

     The right remains a right "of the people," but if the militia meant the National Guard, or some other small state-defined entity, then we might be at least perplexed that the first clause discussed something so narrow, and the second clause something so broad. But since the "militia" clause refers to a group that's not much smaller than "the people," everything makes sense -- the right is a right of people like you and me (and most of us happen to be militia members, too).

     2. But, people ask, what about the "well-regulated"? Could the "well-regulated militia" be something like the National Guard?

     The answer is pretty clearly no. First, the Framing generation did have a term for a small, state-selected group of citizens organized for military purposes -- that was the "select militia." Second, several of the state conventions that ratified the Constitution also proposed constitutional amendments, and four of them offered language that mentioned the "well-regulated militia." All of them defined the term as "the body of the people" -- two as "the body of the people capable of bearing arms," one as "the body of the people trained to arms," and one as "the body of the people, trained to arms." "Well-regulated militia" thus referred to the body of the people, and not to a small select subgroup, such as the National Guard.

     Third, the term "well-regulated" was used quite often in various contexts during that era, and it seems to have meant something like "well-governed." The Oxford English Dictionary doesn't give a definition, but gives three examples from the 1700s to the early 1800s:
1709: "If a liberal Education has formed in us . . . well-regulated Appetites, and worthy Inclinations."
1714: "The practice of all well regulated courts of justice in the world."
1812: "The equation of time . . . is the adjustment of the difference of time, as shown by a well-regulated clock and a true sun dial."
It also defines "regulated" to mean "Governed by rule, properly controlled or directed, adjusted to some standard," or "Of troops: Properly disciplined." The term even appeared in a proverb, "Accidents will happen in the best regulated families." And one sees the same meaning in various sources, from The Federalist (No. 6, "Sparta was little better than a well-regulated camp," No. 83, "well-regulated judgment") to late 1700s American court cases. "Well-regulated" thus doesn't mean "small" or "select"; the well-regulated militia wouldn't be smaller than the militia -- it would just be well-governed.

     3. So "well-regulated militia" does refer to the armed citizenry generally, but to the armed citizenry that's well-trained and well-disciplined. But, some ask, given that the citizenry is not in fact much trained, disciplined, or governed as a military unit, doesn't that mean that the right no longer applies?

     I think that can't be right. First, recall that the right is not a right of the militia, well-regulated or otherwise -- it's "the right of the people." The Framers saw the "well-regulated militia" language as consistent with this, because they saw the well-regulated militia as encompassing the bulk of the people (or at least that part of the people that they saw as capable of effectively possessing guns). But even if their hopes are disappointed, and the militia isn't well-regulated today, the right remains a right of the people, even if now the people are no longer "well-regulated" in their militia capacity.

     And second, how can it make sense to interpret a constitutional right -- a restraint on the power of the federal government -- as being subject to nullification by that very government? After all, the Congress is given the power "To provide for organizing, arming, and disciplining, the Militia," and it's pursuant to this "discipline prescribed by Congress" that the Militia are to be trained (art. I, sec. 8, cl. 16 of the Constitution). Congress has declined to exercise this power in a way that would maintain the Militia as a well-regulated body. Can this Congressional inaction eliminate the right? Why would the Framers essentially say "The right of the people to keep and bear arms shall not be infringed [by Congress, but only so long as Congress doesn't choose to nullify this]"?

     A "right of the people," then, can't be eliminated by Congressional action. The Framers certainly wanted there to be a well-regulated militia, and they hoped that Congress would ensure that the militia remained well-regulated. But they secured a right of the people, and this right remains even if Congress chooses to leave the militia in an insufficiently regulated state.

     4. But, some say, at least the "well-regulated" language shows that the right to bear arms is indeed subject to some regulations. And indeed the right is subject to regulations -- not because of the "well-regulated" (it's the militia that's described as well-regulated, which is to say well-governed, and not the right), but because the Framers generally saw rights as subject to a variety of possible regulations. Likewise, today, many rights (such as, for instance, the freedom of the press) are individual but not absolute. My point is simply that the right is indeed individual -- that it belongs to individuals generally, and not to a small group specially favored by the state or federal governments.


INVASION OF THE LUSOSPHERE: Interestingly enough, five of the 21 sites on Blogstreet's top 20 are Portuguese sites, all apparently run out of Brazil.


BLOGSTREET SAYS WE'RE #4, counting the total number of sites that include ours in their blogrolls. Don't know how much that means, but we appreciate it!


ANOTHER VIEW ON "WHAT WOULD JESUS DRIVE?" (Thanks to reader Kevin Connors for the pointer.)


JEWS, JEWS, JEWS!!! By the way, we do run the media (at least this medium).

     This reminds me of an old Russian joke. A caller calls up a radio talk show and asks: "I saw a billboard that says 'Beat Jews and bicyclists.' Why bicyclists?"

     Incidentally, for all his faults, the author of the amicus brief does say about Jews that "They're smarter than the rest of us." Well, I don't know about "the rest of us" generally, but I'm perfectly happy to believe that we're smarter than the Council of Conservative Citizens.


EVEN YUCKIER: I was curious about who wrote the amicus brief that Eugene mentions immediately below. It seems to have been writen by the author of a whole bunch of anti-semitic works, with memorable titles such as It's the Jews, Stupid!, AntiSemitism is a Disease (You Catch It from Jews), and JEWS - JEWS - JEWS!!! There, I feel better already. Revolting indeed.


YUCK: The Council of Conservative Citizens has a amicus brief in Virginia v. Black (the cross-burning case), saying, among other things, that
The person or persons who have undertaken such a mode of expression [cross-burning] are thereby stating in the most unequivocal means possible their unyielding opposition to what they believe is a minority-liberal program of affirmative action in education and employment, "set asides" in the granting of government contracts, less restrictive immigration laws and other forms of government-sponsored empowerment of non-white ethnic and racial groups. . . .
Oh, yes, that's what I'd understand when I see a burning cross: Opposition to affirmative action. (By the way, how exactly does the Klan's hatred of Jews or for that matter Catholics fit into this picture?)

     The First Amendment protects evil people with scummy opinions (from Communists to Nazis to Klansmen and on) as well as good people with decent opinions. Black's views, or the views of those who support him, don't change my views on free speech, or for that matter on race-based affirmative action; even a stopped clock is right twice a day. But pretending that cross-burning is about opposition to race-based set-asides is just revolting, as a matter of simple honesty. With amici like this, who needs enemies (or, my Latin-speaking brother suggests, inimici)?


WHAT WOULD JESUS DRIVE? Carpenters, I imagine, find larger cars -- whether pickups or SUVs -- pretty useful.


MORE ON UNIVERSITIES, GAYS, AND THE MILITARY: Fellow lawprof Greg Sisk posted this to an online discussion list, and was kind enough to let me repost it. I'm not sure I fully agree with this, but I thought it was much worth passing along:
If I were to stipulate for the moment along with Eugene that the "don't ask, don't tell" policy is wrong, three other bases nonetheless occur to me on which military recruitment falls into an entirely different category than other legal employers, in terms of law school anti-discrimination rules and the efficacy and legitimacy of a boycott.

First, as another example of how this boycott obviously is not instrumental, the JAG Corps of the military which seeks to recruit at law schools does not have the power to change the policy in response to a boycott. When a law school precludes a law firm from interviewing on campus, the impact is focused directly upon the very people -- the partners and officers of the law firm -- who have the power to change the policy and eliminate discriminatory practices. By contrast, the "don't ask, don't tell" policy emerges from democratic governance by interaction of the executive and legislative branches of the federal government. The military itself, much less the officers of the JAG Corps, hardly have the power to change that policy. (If I were to speculate, I would bet that support for the policy is lowest among the ranks of the JAG Corps, but they have no authority to alter the policy.)

Second and relatedly, although moving into the realm of the impropriety of even a symbolic boycott here, while law school academics may be horrified by the result of democratic governance in this particular context, the fact remains that the policy is indeed an example of how democracy is supposed to work. President Clinton proposed a more inclusive policy for the military on sexual orientation; a bipartisan and substantial majority of Congress objected; and the President in response adopted "don't ask, don't tell" as a compromise (in part, as I recall, to avoid a direct congressional directive by statute). Moreover, the policy is undergirded in substantial part by a federal statute, enacted through the constitutionally-approved legislative process, that makes homosexual acts in the military a crime to be adjudicated by court martial. Again, however objectionable that statute may be, it is a product of democratic governance. Thus, in the end, the legal academy's objection to the policy should be directed to the President and the Congress, and to the people at large who have elected them, rather than to the military which is bound to carry out that policy. After all, in our system, the military is supposed to be the servant of the civil government and not act unilaterally on issues of public policy. This too makes the situation entirely incomparable to discriminatory conduct by a law firm.

Finally, the impact on law students from an organized law school boycott of military recruiting is different both in degree and kind from the exclusion of a particular law firm from access to law school interviewing facilities. 1. Difference of Degree: If an individual law firm is excluded, only a few students at most are affected. By imposing a substantial obstacle to military recruiting, hundreds (perhaps thousands) of students across the country are affected. 2. Difference in Kind: The exclusion of a single private legal employer from the law school marketplace is highly unlikely to affect the breadth of legal opportunities available to law students. By contrast, the exclusion of the military removes an entire field of law and an entire vital segment of our national government from the law school marketplace. In this respect, the AALS policy is particularly objectionable in that it elevates the political objections of law faculty above the interests of their own students.


EXECUTING THE INNOCENT: As the Second Circuit rightly points out in today's opinion upholding the constitutionality of the federal death penalty, concern about executing the innocent is as old as capital punishment itself. Some things never change. Convicted criminals have a powerful incentive to claim they are innocent. Most of them are lying. Some are telling the truth. It can be hard to sort out which are which. No one wants to punish the innocent, whether the penalty is death or anything else. All of this was as true 200 years ago as it is today.

     But one important thing has changed. When the Constitution was written, there was little or no appellate review of criminal convictions, but we had a mechanism for resolving post-trial claims of innocence. It was executive clemency. Governors granted pardons and commuted sentences in numbers that seem startlingly high today, largely because they took seriously their responsibility to exercise mercy when there were doubts as to the defendant's guilt. This system lasted until the mid-20th century, when criminal procedure was constitutionalized and the job of reviewing criminal convictions, especially in capital cases, in effect shifted from governors to appellate courts. That shift had some obvious good effects, but it also deprived the system of its traditional safety valve for this class of troubling cases.

     What this all means for today's constitutional law is a normative question that I'll leave to the professionals, but I do want to suggest that the real originalist on this issue is Governor George Ryan of Illinois, who, in actually checking to see if condemned people are guilty, has single-handedly (at least so far) revived the conception of the proper role of a governor that prevailed for the country's first century and a half.


The ongoing emptying out of the rural midwest does raise a serious political question: How long do these shrinking states get to keep all those senators, who seem to exist mostly to vote their constituents subsidies that take money from the rest of us and food and opportunity from the truly poor people of the developing world? . . .
As it happens, the Constitution speaks to this very issue, in Article V, where it says that even with a constitutional amendment "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate," and Article IV, sec. 3, where it says that "[no] State [shall] be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."

     So to merge two states, you'd need both states and Congress to agree; and to give some states fewer Senators than others, you'd need the agreement of those states, plus a constitutional amendment. It may also be possible to amend article V itself, to remove the Senator Clause (OK, I just made that term up for the bad pun), and then amend the Constitution to give small states fewer Senators than others -- but I think there's a good argument that this would be a violation of the original constitutional agreement, and shouldn't be done even if it were politically feasible.

     Bottom line: It's not likely that California will get more senators than Wyoming any time soon (unless California itself splits up).


EXECUTING THE POTENTIALLY INNOCENT. The Second Circuit opinion described by Orin (two posts below) isn’t very satisfying, is it? When you read the opinion you realize that the Supreme Court never has squarely addressed the question of whether or when the risk of erroneous execution might become large enough to create due process problems. The Second Circuit tries to shore up the authority on point by quoting from the dissent and the petitioners’ brief in the old case of Gregg v. Georgia to show that the issue was “presented” to the Court. Okay, but the presentation of the issue was made in general terms, and in any event the majority didn’t treat it.

     The more recent case of Herrera v. Collins doesn’t settle the issue, either. The Second Circuit says that Herrera “establishes, at a minimum, that it is lawful under the Due Process Clause to end the judicial review process at some point, despite the purely theoretical possibility that the defendant might have been able to demonstrate his innocence in the future.” Sure, but that doesn’t necessarily mean that it comports with due process to end judicial review when there is a significant chance of exoneration still to be explored.

     That was the point of the district court opinion. The court took note of the recent exonerations of many inmates on death row based on DNA evidence. Then it said: “the unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected (and then often only fortuitously or by application of newly-developed techniques), compels the conclusion that execution under the Federal Death Penalty Act, by cutting off the opportunity for exoneration, denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings.” The court was trying to make a judgment of degree, and also an empirical judgment. Obviously people have been saying for a long time that if you have capital punishment you risk executing innocent people. (I would go farther: it has been obvious to intelligent people all along that you will execute some innocent people, humans being as fallible as they are.) But lately we have been learning more about the rate of error, and it's troubling. The district court thought this had constitutional significance.

     Is such a judgment out of bounds? Would any demonstrated rate of error in murder trials and capital sentencing be high enough to support a conclusion that carrying out death sentences violates the due process clause? That is a hard question, at least so far as I am concerned. Such judgments of degree are very difficult for courts to make; it also is hard for courts trying to interpret constitutional language to know what to make of new empirical information about the world, such as a discovery that error rates may be higher -- maybe much higher -- than we thought. Yet are such judgments altogether forbidden? I don’t know if the district judge answered the question in this case correctly, but at least he confronted it. The Second Circuit avoided engagement with the question and instead argued – unconvincingly, I think – that the Supreme Court has already settled the issue. Which is why I found today’s opinion unsatisfying.


BLOGTRACK: Check out BlogTrack (from David Janes), a tool for quickly skimming the contents of many blogs (the link I gave shows you a display starting with our blog, but of course you can use other blogs as the root, too). Here's the summary, by Janes himself:
BlogTrack lets you quickly browse many many blogs.

It provides a multipaned window, the left pane listing all the blogs and recent entries in a "reference" blog's blogroll, the right pane displaying the blog itself. By using this tool, there is no longer any need to check each blog you read one at a time for updates -- BlogTrack checks it for you. BlogTrack also determines whether anyone else in the Blogosphere has linked to an entry and will list this in situ.
Looks like a great new option, and one that illustrates the power and flexibility of the Web.


SECOND CIRCUIT REVERSES DISTRICT COURT ORDER INVALIDATING FEDERAL DEATH PENALTY: You can find the opinion at the Second Circuit's website by clicking on "Decisions" on the left side, then "Today's Opinions," and then #3 (I can't find a direct link, but it's case No. 02-1403). The gist of the opinion, authored by Judge Cabranes: District Judge Rakoff's opinion was based on an argument that the Supreme Court long ago rejected. The fact that the death penalty may not work very well does not make it constitutionally invalid. A key passage:
Despite suggestions by the District Court and the defendants that they are embracing a novel challenge to the constitutionality of capital punishment, the idea that a convicted person has a right to the continued opportunity for exoneration during the course of his natural life is not new: Because this proposition has been presented to the Supreme Court on a number of occasions and repeatedly rejected by the Court, we hold that the continued opportunity to exonerate oneself throughout the natural course of one's life is not a right "so rooted in the traditions and conscience of our people as to be ranked as fundamental."
And another:
[T]he argument that innocent people may be executed -- in small or large numbers -- is not new; it has been central to the centuries-old debate over both the wisdom and the constitutionality of capital punishment, and binding precedents of the Supreme Court prevent us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent.
Most importantly, at least for this blog, is this passage quoting the work of our very own co-conspirator Stuart:
In the United States, opponents of capital punishment “began to argue that innocent people were often executed by mistake” as early as the mid-Nineteenth Century. Stuart Banner, The Death Penalty: An American History 121 (2002). These abolitionists maintained that “[ the] government ought to abandon capital punishment in general because so many innocent people were going to their deaths on the gallows.” Id. at 121-22.


RADIO: I'll be on KPCC-FM (89.3) in Los Angeles at 10 am this morning, debating the Second Amendment.


MILITARY JUSTICE: Phil Carter, a UCLA law student and a former military police captain, criticizes a U.S. News & World Report piece on military justice. I am not an expert on the field, but Carter's criticisms sound quite sound to me, and much worth reading if you're interested in the subject.


RHODES RADICAL CHIC: Slate's Chatterbox (today, Emily Yoffe) has a great critique of the New York Times coverage of the Rhodes Scholarship given to Chesa Boudin, the son of a couple of Weathermen who are in prison for murder -- and of 22-year-old Boudin himself, whose moral obtuseness rivals that of the Times.


VICIOUS BUT GOOD: I like Ted Rall. And I agree with Mark Kleiman: "I like my political cartooning on the vicious side, even when I disagree with it."


REASON BLOG ON A ROLL: Also through H&R, as allergy medicine Claritin goes on the over-the-counter market: an editorial by Mike Lynch earlier this year documenting more FDA screwiness.

In 1998, an HMO (here, mostly representing consumers) petitions the FDA to allow Claritin, a prescription drug, to be sold over the counter because it's safer than over-the-counter alternatives. The drug manufacturer, Schering-Plough, insists on remaining more heavily regulated to protect consumer health and prevent consumers from self-diagnosing and self-treating. (OTC status would also increase the direct costs to consumers, I suppose since you don't get reimbursed for OTC medications while you do get reimbursed for prescription drugs, so the HMO's interests aren't exactly aligned with those of consumers here.) The FDA did nothing -- which ends up helping Schering-Plough. (Prices are expected to drop 75% once the drug goes OTC.)

This March, nine months before Claritin's patent expires, Schering-Plough changes its tune and asks for expedited OTC status. According to Mike, this is because Schering-Plough has a new prescription allergy drug, Clarinex, that it wants doctors to start prescribing. Also, though Mike doesn't mention this, it's a common device for drug manufacturers to drop their prices and make their drugs more widely available shortly before their patent expires. This is because generics aren't exactly identical to the original drug. Pills are mostly made of non-medicine (the pill has to be large enough to hold, and there's so little medicine content in most pills), and different companies use different ingredients. Some consumers can handle one company's version but are allergic to another version. So if you get everyone using Claritin before competitors are available, then you can increase prices later and not lose so many customers because they'll be afraid of having an allergic reaction with someone else's product. (I don't know whether this is going on for Claritin.)

This is all a good illustration of the symbiotic relationship between regulators and regulated. Let me close with a quote from Mike:

The larger issue, as former Reason editor Virginia Postrel observes, is who controls access to your medicine. The FDA never had a mandate to hide pills behind the pharmacy counter, to force people to see doctors, to protect drug company interests, or to make pharmaceuticals cheaper. Its only job was to help make them safer. Some say a company ought to be able to determine how it distributes its products. That's fine, but this industry relies on, and hides behind, government restrictions to limit access and keep prices high. For safe, simple, and easy-to-understand drugs, such restrictions are wrong.

P.S. Remember the Indigo Girls song, "Closer to Fine"? (This was one of my favorite songs back when I did a cappella.) "I woke up with a headache like my head against a board / Twice as cloudy as I did the night before / When I went in seeking Claritin."


FOUND POEM AT GROUND ZERO: Very much worth reading.


BEER ADS LEADING TO FAN VIOLENCE? Reason's Hit & Run investigates.


BREAKING NEWS: CIVIL LIBERTARIANS WORRIED ABOUT BIG BROTHER, N.Y. TIMES REPORTS: It's been about a month since the N.Y. Times had a good "Big Brother" story on its front page, and today the Times corrected its oversight with a story called New Tools for Domestic Spying, and Qualms. Despite the title, I can't find anything particularly "new" in the story. It's more or less a collection of past news stories on privacy and surveillance followed by additional reactions and commentary from civil liberties groups. Here are some excerpts:
across the country, sometimes to the dismay of civil libertarians, law enforcement officials are maneuvering to seize the information-gathering weapons they say they desperately need to thwart terrorist attacks.
I wonder what the difference is between law enforcement officials doing their jobs according to the law and "maneuvering to seize . . . information-gathering weapons"? Here's more:
civil libertarians increasingly worry about how law enforcement might wield its new powers. They say the nation is putting at risk the very thing it is fighting for: the personal freedoms and rights embodied in the Constitution. Moreover, they say, authorities with powerful technology will inevitably blunder. . .
The second half of the article goes through some of the major concerns of civil liberties groups. For example, there's government secrecy:
What perhaps angers the privacy advocates most is that so much of this revolution in police work is taking place in secret, said Cindy Cohn, legal director of the Electronic Frontier Foundation, which represented Reef Seekers. "If we are going to decide as a country that because of our worry about terrorism that we are willing to give up our basic privacy, we need an open and full debate on whether we want to make such a fundamental change," Ms. Cohn said.
And there's also the evaporating wall between la enforcement and intelligence surveillance:
Civil libertarians, frustrated that they cannot draw the other side into a debate, argue that questions about the need for such expanded powers are critical, and far from answered. "Who said you have to destroy a village in order to save it?" asked Jethro Eisenstein, . . . . "We're protecting freedom and democracy, but unfortunately freedom and democracy have to be sacrificed."
And there's also some stuff on government databases:
Civil libertarians worry that centralized data will be more susceptible to theft. But they are scared even more by the next step officials want to take: mining that data to divine the next terrorist strike.
Okay, okay, we get the point. . . .


THE NUREMBERG FILES CASE: The Supreme Court is likely to decide Friday whether to hear the Nuremberg Files free speech / threats case; we should know the result on Monday, unless some Justice asks to have the case relisted for the following week. Here's my take on the case -- an op-ed written after the original panel decision, which held that the speech was constitutionally protected, and before the en banc decision, which held that the speech was unprotected. Here's a first-rate law review article written by a student of mine about the broader issue of free speech and threats.

     It's always dangerous to predict that the Supreme Court will grant certiorari, but I'll go out on a limb here: I predict that either the Justices will grant certiorari, or that one of the Justices will write a dissent from denial of certiorari. The conflict between the opinion below and the Supreme Court's NAACP v. Claiborne Hardware (1982) is quite clear, and I think that at least some Justices will conclude that the Court should not allow the anti-abortion speech in this case -- extremist as it may be -- to be treated worse than the pro-civil-rights-boycott speech in Claiborne.

Monday, December 09, 2002


MORE ON THE NINTH CIRCUIT'S STRIKING DOWN THE EXCEPTION FOR RETIRED PEACE OFFICERS: I had much the same reaction as Stuart Buck (linked to by Eugene below) to this portion of the Court's opinion. I'm no constitutional law expert, but the remedy that the Court chose to correct the constitutional wrong seems awfully fishy to me. It seems to me that when a person challenges a law on equal protection grounds, and the court agrees that the law violates equal protection, the remedy is to not apply the law to the party that is challenging the law, rather than to begin applying the law to the other group that the legislature exempted from the law. The power of judicial review is the power to invalidate statutes that exceed the legislature's authority, not the power to redraft statutes so that they comply with the legislature's authority.

     The court's remedy is particularly ironic given that this case involves a criminal statute. The fundamental principle of criminal law is the so-called "principle of legality": legislatures must create crimes, not courts. Indeed, a creative judicial interpretation of a criminal statute that expands the scope of the statute beyond what its text and relevant precedents support can itself violate the Constitution. See, e.g., Bouie v. City of Columbia, 378 U.S. 347 (1964) (reversing a state supreme court's interpretation of a criminal trespass statute because it enlarged the scope of the statute by judicial construction in violation of the Constitution). The principle of legality doesn't clash with the power of judicial review when the courts must invalidate criminal laws. But for a court to invalidate an exception to a criminal law is for a court to create a criminal prohibition where the legislature did not-- itself a clear constituti l no-no.


From Our Editors

Our Review

In the current debate over the role of guns in American life, there is one historical notion in particular that invigorates those who believe that an America stocked to the rafters with privately held firearms is the best and truest America.

I refer to the truism that our national identity has always been inextricably tied to our unparalleled intimacy with guns, that the pioneers who settled this country did so with musket ever at hand to provide food and self-defense; our Revolution was won by valorous citizen-soldiers taking up their trusty flintlocks in defense of hearth and home; and the Constitution's framers, mindful of this heritage, instituted an absolute freedom of individual gun ownership as a forever necessary safeguard against tyranny.

In Arming America: The Origins of a National Gun Culture, Emory University historian Michael A. Bellesiles leaps to the forefront of a recent move by scholars toward reexamining this mythology of the gun. To every article of the legend, Bellesiles mounts a relentless and eye-opening barrage of counterevidence, gathered over ten years of research in probate records, censuses, government and military documents, and other primary sources.

Examining the growth of our national gun culture from colonial times to Reconstruction, Bellesiles finds that its progress was a slow and tortured one. From the first settlements up until the Civil War, ordinary Americans were not heavily armed and were generally neglectful of the guns they did own. Guns of the time were expensive, clumsy, unreliable, and hard to maintain. Opposing other historians' claims for nearly universal gun ownership among the settlers, Bellesiles finds that apparently "at no time prior to 1850 did more than a tenth of the people own guns."

During the Revolutionary War, the civilian militias were, again contrary to myth, ineffective on the whole as a fighting force. One basic reason: The great majority of their members had never bothered to arm themselves or attain proficiency in shooting. After the war was won by professionals, the government labored for the next 70 years to arm a surprisingly resistant citizenry.

The Civil War finally brought reality into line with the myth. Technological improvements, massive government investment, and the training in gun use of virtually every able American male brought firearms into the mainstream at last -- with a chilling rise in civilian violence as its legacy.

The shattering implications of Bellesiles' argument for scholars, policy-makers, and ruminators upon the national character are clearly evident, but he leaves them unstated. We are left to draw our own conclusions, but this formidably researched, vigorously written book earns the power to ground our currently high-flown gun debate in solid historical earth.

--Edward Hutchinson
Seems to me that Their Editors would want to update their views given recent developments; I'm on the run right now, but if you e-mail them about this, please let me know what you hear back. Also, if you find the e-mail address or URL for sending such messages, please let me know so I can post it. Thanks to reader Jeff Xrlq for pointing me to this.


THE NINTH CIRCUIT'S STRIKING DOWN THE EXCEPTION FOR RETIRED PEACE OFFICERS: Stuart Buck has some pretty powerful criticisms of this aspect of the decision:
The court purported to sever an exception to a criminal law. Thus, retired peace officers who bought weapons in reliance on that exception were immediately converted into felons by the court's judgment. Moreover, the court extended criminal liability to a group of people that the legislature thought shouldn't be deemed criminals. That intrudes into the prerogatives of the legislature.
Stuart also cites quite a few cases that support his criticism; I'm not completely sure that those cases represent the only view of the matter, but I do think that his argument is much worth reading.

UPDATE: Sure enough, Howard Bashman presents another view of the matter, with a follow-up here; also much worth reading.


ANOTHER FACTUAL ERROR IN THE NINTH CIRCUIT'S SECOND AMENDMENT DECISION: Clayton Cramer points out that the Ninth Circuit was quite mistaken in asserting that the traditional individual rights model "had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson" -- and he has the case citations (and excerpts) to prove it.


SEX AND THE PUBLIC INTEREST: Mark Kleiman has some characteristically interesting and thoughtful remarks on sexual freedom, the Constitution, and why the government does have a rational interest in regulating sexual behavior -- even if on balance there are good reasons why it shouldn't do so.


SUPREME COURT FORECASTING PROJECT: By the way, the predictions for the cases argued in October, November, and December -- both the political science statistical model's predictions and the predictions of the experts -- are up at the Forecasting Project's Web site; just page down to the list of cases and click on the name of the case in which you're interested.


PREDICTIONS -- VIRGINIA V. BLACK, THE SUPREME COURT'S CROSS-BURNING CASE: As I've mentioned before, I'm part of "a friendly interdisciplinary competition to compare the accuracy of the different ways in which legal experts and political scientists assess and predict Supreme Court decision making." My job is to predict the outcomes of three Supreme Court cases -- Eldred v. Ashcroft, Virginia v. Black, and one more case to be named later.

     So since I've had to make a prediction in writing, I might as well do it publicly. Black involves three cases -- one (Black) in which the defendant burned a cross at a KKK rally on a field, with the property owner's permission, and two (Elliott and O'Mara) in which the defendants burned crosses in a black homeowner's yard, without that person's permission. All were prosecuted under a state statute which barred the burning of crosses in order to intimidate, and which said that the burning of a cross constitutes prima facie evidence of an intent to intimidate. The Virginia Supreme Court held, 4-3, that the statute violated the First Amendment.

     My predictions:

     1. The Supreme Court will uphold the Virginia Supreme Court's decision, and hold that the prosecutions did violate the First Amendment. Confidence: Very high.

     2. The Supreme Court will uphold the decision as to Black by a 9-0 vote. Though Black's expression was repugnant, and though blacks who saw it or heard of it might feel understandably worried that these virulent racists were out there, the cross-burning doesn't fall within the narrow threat exception to the First Amendment (any more than "those damned scabs / capitalists / eco-criminals / Klansmen deserve to die" would be legally punishable, if said at a rally in a secluded location). Confidence: High.

     3. The Supreme Court will uphold the decision in the other cases by a 6-3 vote, with Justices Stevens, O'Connor, and Breyer dissenting. The expression here was, I think, a punishable threat of violence, and trespassing to boot. But under the R.A.V. v. City of St. Paul (1992) case, even such punishable behavior can't be punished by laws that discriminate in certain ways within the unprotected category, especially if they seem viewpoint-based (as this one appears to be). The rule set forth by R.A.V. is complex and often far from clear in its application, but I believe that this is the way the Justices will apply it here. Justices Stevens and O'Connor disagreed with this R.A.V. rule -- they argued that if expression falls within a punishable category (again, such as threats or trespass), it's just unprotected, and can be punished even using laws that single out some kinds of punishable speech for extra punishment. Justice Breyer wasn't on the Court at the time, but I suspect that he'll go along with Stevens and O'Connor. Confidence: Moderate.


JUST DONATED $20 TO ANDREW SULLIVAN, PER THE REQUEST ON HIS BLOG: I read him quite often, and think it's right for me to give something back to him. The blog is one of the things he does for a living; unlike me, he doesn't get a university salary that gives him the freedom to write without compensation.


PUBLIC DEFENDERS: Glen Whitman suggests:
Why not have public defenders elected by the prison population, or perhaps by all persons who have been convicted of felonies? They would seem to be the appropriate constituency.
And he's not 100% kidding (I think).


AMAZON NOT SO GOOD AFTER ALL: A reader just e-mailed me to say that's glowing editorial review of Michael Bellesiles' Arming America appears to be still up -- or is it back up? -- despite my earlier post saying that it was withdrawn. At first I thought that it might be up for one edition of the book and not another, but now it appears to be up for all of them. Either its omission this morning, when I put up my earlier post, was a glitch, or it has been put back up.

     If anyone has more information about this, I'd love to hear it. Just to make my position clear: I think that institutions that have positively reviewed this book have a duty to their readers to revisit the question, and at least to make clear that the accuracy of the book has been called into serious question (and, better yet, recant the positive review, if they are persuaded -- as I think they should be -- that the review is unwarranted). I also think that institutions that sell or distribute the book should alert readers to the possibility that the book they're buying is highly inaccurate. This just seems to me a basic matter of the professional ethics that are applicable to reviews, publishers, booksellers, and others.

     I realize that not all institutions would be willing to do this, largely because they don't want to lose face (money is also an issue, but I doubt that makes that much money from selling this book) or because they don't want the hassle. But I think that people should publicly pressure these institutions into doing the right thing, by persuading them that if they do nothing, they'll suffer still more loss of face, and perhaps eventually more loss of money.




WHOOPS! Careful readers of my National Review Online op-ed might have noted that it begins with "Someone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment," even though it was posted the morning after the Ninth Circuit decision. Whoops!

     I submitted the op-ed Thursday night, but I naturally assumed -- based on my experience with op-eds in print publications -- that it would come out Monday or at the earliest over the weekend. But the NRO people, correctly realizing that the Second Amendment debate is hot right now, published it right away, and though they gave me a chance to give it one more quick editing pass, I completely forgot to correct the first sentence. (Later that day, after the piece was published, I did ask them to correct it, and the correction should indeed be made some time today.)

     So even a Cyberspace Boy like me can get tripped up by thinking using the old media mentality. Let that be a lesson . . . .

UPDATE: The NRO people have fixed the problem, so future generations won't see my shame and disgrace (unless they read blogs).


AMAZON.COM REMOVES ITS STRONGLY POSITIVE REVIEW OF MICHAEL BELLESILES' ARMING AMERICA: Reader Tom Maguire points this out. Some people, including me, had e-mailed amazon suggesting that they might want to take down the review, or at least note that many scholars would no longer agree with sentences such as:
Bellesiles, who is highly knowledgeable about weapons and military history, never comes out against guns. He is more interested in discovering the truth than in taking sides. Nevertheless, his work shatters some time-honored myths and icons--including the usual reading of the Second Amendment--and will be hard to refute.
All I got was a standard "Thanks for the message, we'll consider it" message, but now it looks like amazon did do something. Good for them.


DISMAL SCIENCE: Little-known fact -- the label "the dismal science," used to refer to economics, originated in an appallingly racist (even by the standards of the time, I think), pro-slavery tract in the mid-1800s:
Our own white or sallow Ireland, sluttishly starving, from age to age, on its act-of-parliament "freedom," was hitherto the flower of mismanagement among the nations; but what will this be to a negro Ireland, with pumpkins themselves fallen scarce like potatoes? Imagination cannot fathom such an object; the belly of chaos never held the like. The human mind, in its wide wanderings, has not dreamt, yet, of such a "freedom" as that will be. Toward that, if Exeter Hall, and science of supply and demand, are to continue our guides in the matter, we are daily traveling, and even struggling, with loans of half a million, and such like, to accelerate ourselves.

Truly, my philanthropic friends, Exeter Hall philanthropy [Exeter Hall referred to a leading anti-slavery organization] is wonderful; and the social science -- not a "gay science," but a rueful -- which finds the secret of this universe in "supply and demand," and reduces the duty of human governors to that of letting men alone, is also wonderful. Not a "gay science," I should say, like some we have heard of; no, a dreary, desolate and, indeed, quite abject and distressing one; [p.531] what we might call, by way of eminence, the dismal science. These two, Exeter Hall philanthropy and the Dismal Science, led by any sacred cause of black emancipation, or the like, to fall in love and make a wedding of it -- will give birth to progenies and prodigies: dark extensive moon-calves, unnameable abortions, wide-coiled monstrosities, such as the world has not seen hitherto!
The pro-slavery forces opposed classical economics because the classical economists (in particular, John Stuart Mill) supported freedom for blacks, and argued that the economic backwardness of some peoples (not just blacks but also the Irish and others) flowed not from innate inferiority but from lack of the proper legal and market conditions that are conducive to trade and industry.

     The tract was Thomas Carlyle's "Occasional Discourse on the Negro Question (1849), reprinted in 1853 as "Occasional Discourse on the Nigger Question." I thank the History of Economic Thought Website for putting these materials on the Web, though I don't much like the statement in their "Warning and Disclaimer" that "We apologize for any offense this [the 'enormous amount of extreme racist language and opinions' in the Carlyle essay] may cause our readers." Since when are historians supposed to apologize to readers for the fact that certain historical documents (which they separately stress that they don't endorse) are offensive?

     See also David Leavy's and Sandra Peart's detailed and fascinating article on the whole mid-1800s debate on this subject; and thanks to InstaPundit for the pointer to the essay, though the InstaPundit reference was to the section on eugenics rather than on slavery and the "dismal science" label.


JUSTICES THOMAS AND GINSBURG, VOTING TOGETHER: Justice Thomas filed a dissent this morning from the Court's refusal to hear a commercial speech case, and the one Justice who joined him was . . . Justice Ginsburg (who generally sees eye to eye with Justice Thomas on commercial speech questions, though not on many others).


MOMMY, WHERE DO BLOG HITS COME FROM? Well, Junior, every day the InstaStork comes and . . . .

     Really, where does blog traffic come from? Does it all come from The Big Guns (InstaPundit et al.)? From blogrolls (those fixed lists of favorite sites that most blogs, such as ours, include along the side of the screen)? From other links? I suspect the answer is different for different blogs, but let's start with ours, as measured by our Extreme Tracking counter.

     To begin with, about half our unique visits show no referrer. I'm sure there are some false negatives there, but if this is mostly about right, this means that at least half of the people who visit our site are now regular readers. (I suspect that it's more than half, since I think many regular readers visit by clicking on our name in someone's blogroll, rather than by hand-entering it or clicking on one of their own bookmarks.) Note that our total traffic has been running for the past month at an average of a bit over 4000 unique visits per weekday.

     But how did these people get to be regular readers? A few may have learned of the site directly from one of us, or from a friend, or from some newspaper article or radio show -- but I suspect that most originally found it through a link on another site, but now visit it repeatedly even without such links. At least as a first approximation, we can assume that the direct hits ultimately flow from the same sources as the referral hits do (though of course that's not quite right; presumably referrals from some places are more likely to yield regular readers than referrals from other places).

     So which sites do the referrals come from? As expected, 50% come from InstaPundit; but unexpectedly, relatively few come from the other big guns (perhaps because the others link to us less often, but also possibly because their readers are less likely to follow links). 6% come from Slate (some from our occasional mentions in the "Other Web Sites" column or from other links, others from the link on Mickey Kaus's blogroll). 4% come from National Review Online's The Corner. About 2% come from How Appealing. About 1% each come from, Andrew Sullivan (who links to us rarely, but whose links yield huge traffic), and Virginia Postrel's Dynamist blog. Though to my knowledge Best of the Web links to us as often as The Corner does, we get less than 1% from there (though that shows the limits of unique visits as a means of counting the attention paid to the site -- we're delighted whenever Best of the Web quotes one of our items, simply because that's a way of getting our ideas out even if most Best of the Web readers don't click through to the site).

     Thus, here's one surprise: About 35% of our hits come from a huge collection of sites, each yielding 1% of our referrers or less (many much less) -- sites like Armed and Dangerous, OverLawyered, PejmanPundit, Jane Galt, and many others. Put together, they route over twice as much traffic to us as the big media sites (Slate, National Review Online, OpinionJournal), and nearly as much as InstaPundit. Naturally, we're glad for links from everyone -- but that's the point: Our traffic comes from a mix of InstaPundit, big media, and smaller blogs, not just from one or the other source.

     What about referrals from blogrolls vs. referrals from links in posts? I at first thought blogroll links weren't very useful; why would someone just click on something that has no excerpt, no teaser, nothing to get the reader interested? And yet when I check some of the referring sites as I see the referral, I often (probably at least about half the time) see no link to us except in the blogroll. Perhaps readers first discovered us through a link in one of the posts, but now know to visit us even without such a link, using the referring site's blogroll; hard to tell. But in any event, blogrolls do seem to be important sources of continuing hits.

     These are, of course, statistics just from our site; and even as to our site, they leave a lot of uncertainty. Still, I thought I'd pass my conclusions along, for the benefit of others who (like me) are interested in how this new medium actually operates.


LOTT, LOOSE CANNON: At the party for Senator Strom Thurmond's 100th birthday, Senate Majority Leader Trent Lott opened his mouth, and inserted both legs up to his waist: “I want to say this about my state: When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years, either.” Whether or not Lott understood the implications of his remark -- Thurmond ran for president in 1949 as an avowed segregationist -- it was offensive and merits an apology, a point some conservative commentators have made here and here.

Sunday, December 08, 2002


FACT FOR THE DAY: The following Czech phrase:

Strc prst skrz krk

(put an upside-down ^ on the c and pronounce it "ch") contains no vowels and means "Stick [your] finger through [your] throat." Also, the Czech word for "death" is "smrt."

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