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Saturday, January 11, 2003


THE NEW CRITIC OF UNASSIMILATED MUSLIM CULTURE IN HOLLAND: Here's a Telegraph story headlined "Somali refugee follows in Fortuyn's footsteps with attack on imams":
Ayaan Hirsi Ali [is a] . . . slender, soft-spoken Somali refugee, 32, now a star Liberal candidate for parliament and certain to be a winner in this month's general election . . .

In a sense Miss Hirsi Ali is the heir to Mr Fortuyn's revolution, despite being part of a mainstream party and, with a fragile frame and diffident manner, seeming anything but a firebrand.

Just weeks ago she was in hiding, evading what amounted to a death sentence, after she said Islam was an oppressive, misogynist religion trapped in the 13th century that seemed to be at war with almost all non-followers.

"I was provoked by some guys shouting at me in a TV debate," she said in precise, fluent English, almost at a whisper. "So I blurted out, 'It's my religion, and my culture, and I can call it backward if I want'. But I was also drawn into saying I was no longer a practising Muslim and that set it all off, because the punishment for leaving the faith is death." . . .

[Ali] was subjected to the cruel ritual of female circumcision aged five, then ordered against her will to marry a kinsman in Canada, who wanted her to bear him six sons.

"I was sent to Germany to meet him but I couldn't face it," she said. "So I slipped across the border into the Netherlands at 11 o'clock on a November night in 1992 and asked for asylum." . . . She was 22 and did not speak a word of Dutch. Finding odd jobs as a cleaner, and learning fast about the underworld of abused Muslim girls hiding in shelters, she educated herself, ultimately studying political science at Leiden University.

"I wanted to understand why the western countries were doing so well when the rest of the world seemed to be collapsing," she said. "I studied the history of European political thought from the Greeks and Romans up to the Second World War." Her favourite thinker is John Stuart Mill.

"I learned that people in the West value the autonomous individual. They understand the importance of science, knowledge. They are capable of criticising themselves and there is an ability to record history to avoid repeating the mistakes of the past. It is exactly the opposite in Somalia where all the institutions of record are missing, and my grandmother's memories of the clan wars will die with her," she said.

She was asked by the then ruling Labour Party to research why so many Dutch-born Muslim youths seemed to be at war with their host society.

Her conclusion was a blistering critique of the Dutch state policy of multiculturalism, which she described as a calamitous mistake born of "a misplaced sense of guilt or pity" that has allowed militant imams "preaching hate" to indoctrinate youths in segregated schools, all paid for by fat subsidies from the Dutch taxpayer. She is demanding an immediate end to state funding for 700 Islamic clubs, often run by hardline clerics.

"The Netherlands is a country that worships consensus and peace, but here you have newcomers who are not integrated into this system. They exploit the values of an open liberal society to reach illiberal ends," she said.

Her Labour sponsors did not care for the message, but she was welcomed with open arms by the free-market Liberals, who have been quick to seize on the Fortuyn message. "Everyone knows that the position of women in Islamic countries is horrendous, but the Dutch like to think it doesn't happen here," she said.

"They don't want to believe Muslim women in the Netherlands are beaten and locked up in their homes, or that girls are murdered for holding hands with a non-Muslim boy. When I took it up with the Labour Party they sided with the Islamic conservatives, and told me to stop, so that's when I became really inflamed."
Quite a story -- and, if her criticisms are correct, a powerful indictment of unassimilated Muslim culture in Holland (and I've heard similar charges leveled at unassimiliated Muslim culture in other European countries). Thanks to InstaPundit and The Brothers Judd for the pointers.


Hundreds of angry Malawians hounded a senior political figure from his house and stoned him [though not fatally] late Wednesday, accusing him of harboring vampires. Blantire Urban Governor Eric Chiwaya, a member of the ruling United Democratic Front, was the latest victim of a bizarre rumor that the country's government is colluding with vampires to collect human blood for international aid agencies. . . .


The Greenland government collapsed yesterday because of a row about a phenomenon associated more commonly with the medieval period rather than the 21st century: witchcraft. . . .

The Arctic territory's home rule government, in office for only 37 days, fell apart because of its senior civil servant's penchant for what some politicians called "witch-doctoring and other mumbo jumbo" and others "plain exorcism".

The affair centres on the activities of Jens Lyberth, who called upon the services of a healer to drive evil spirits from the government's offices in Nuuk, Greenland's capital. . . .

Mr Lyberth urged the 600 civil servants under his control to use similar methods to improve the strained relations between Greenlanders and Danes, who make up about a fifth of the island's population.

News of his unconventional cleansing and diplomatic methods outraged the island's bishops and many of its senior politicians.

It also attracted the mockery of the Danish tabloid press. . . .

Mr Lyberth promised to desist from further ceremonies, but said he had no regrets. . . .

Friday, January 10, 2003


PYONGYANG BLOGGING: As I was composing the post immediately below this one, it struck me: What's so striking about the North Korean Central News Agency page? (1) Eclectic content (nuclear power, young people, coots); (2) a distinctive and unabashed political slant; (3) an endearing lack of servile attention to the constraints of English vocabulary and idiom -- it's a blog! The North Koreans have discovered blogging. Good for them; now if we only saw more hot-links, with an occasional reference to Lileks . . . .


PYONGYANG CALLING: From the invaluable [North] Korean Central News Agency:
The U.S. attempt to stifle the DPRK, failing to see the might of their single-hearted unity, is a foolish act like kicking a rock with a bare foot.

The U.S. "theory on strength-almighty", "weapon-almighty" does not go down with the DPRK. the DPRK's pluck is firm as it is fully prepared to counter the U.S. strategy of strength.
A later news story from the same day:
Sanctuary for coots

Pyongyang, January 10 (KCNA) -- Flocks of coots have gathered in the water area of the West Sea Barrage in Korea. Coot is a migratory bird that lives in areas north of the central part of Korea and flies away southward in winter. . . .

The two islets were designated as a sanctuary for coots in July last year.
Korean youths, vanguard of economic construction

Pyongyang, January 10 (KCNA) --Young men and women of Korea have registered tremendous achievements in production and construction from the first day of the New Year, inspired by the new year joint editorial of the country's leading newspapers. Young people in the power, coal and metal industrial sectors and railway transport are effecting a great upsurge in their working sites, determined to fully demonstrate the dignity and might of the republic under the great army-based policy.

Young workers of the Pyongyang Thermal Power Complex and the East Pyongyang Thermal Power Plant have increased the electricity and hot water production much more than in the same days of last month, while decreasing the heavy oil consumption as much as possible.

Young coal miners throughout the country are working hard to top their daily quotas, overcoming difficulties.

Such achievements have been made by young people in metal and light industrial sectors, railway transport, agricultural domain and the facelifting of the Yonggwang Street, Pyongyang.


THE REAL LORD OF THE RINGS, which it turns out was written by Ernest Hemingway. No, wait, Mickey Spillane. No, Neal Stephenson. No, Gilbert & Sullivan . . . . Dr. Seuss . . . . (Many thanks to Regina Cullen for the pointer.)


"BECAUSE THE PAST IS THE PRESENT, AND THE FUTURE TOO." That's the slogan of History News Network -- pretty nicely put.


K.C. JOHNSON AND BROOKLYN COLLEGE: Jerome Sternstein, a retired Brooklyn College history professor, was originally skeptical about the claims that Brooklyn College's denial of tenure to K.C. Johnson was politically motivated, but changed his mind after inquiring further. He has an interesting piece on the affair at History News Network, and ties it in to broader issues having to do with politics and the academy. Worth reading.


DRUNKENNESS AND CRIME: Clayton Cramer has more on the connection between drunkenness and crime.


FOR NIKE: Ronald K.L. Collins, a scholar at the First Amendment Center, and co-author of two books on the First Amendment, passes along the following piece on the Nike case. I'm not sure that I fully agree with it, but I think it's very interesting, and worth reproducing in its entirety, of course with his permission (especially since it's not already on the Web).
Ronald K.L. Collins, "Let Nike Talk," Legal Times, Jan. 6, 2003, at 36:

Why do some kinds of expression receive more constitutional protection than other kinds? The short and simple answer is harm. If it can be demonstrated clearly that one person's expression directly, actually, and significantly harms another, then government regulation may be warranted. The principle seems straightforward. But when it comes to commercial speech, courts and practitioners are too often oblivious to the obvious.

The problem: Judges sometimes apply the commercial speech doctrine in rigid and uncritical ways inconsistent with its very purpose. Nike v. Kasky, currently before the Supreme Court on a petition for review, is a case in point. The Court should take the case to restore reason to this crucial area of First Amendment law.

The controversy arose when a political activist brought an action against Nike alleging a violation of California's consumer protection and false advertising laws. Nike purportedly crossed the line, so the argument went, when it "falsely" responded in the press and elsewhere to charges that it was engaged in unfair and inhumane labor practices abroad. Though Nike's expression concerned controversial social, economic, and political issues, the California Supreme Court (by a 4-3 vote) held that its comments were commercial speech subject to government regulation, at least for First Amendment purposes.

The Nike case is a notable example-one among many-of the pressing need for analytical clarity to counter misconceptions about why commercial speech should or should not be treated differently from other more-protected kinds of expression.

Basically, commercial speech is regulated because of one overriding concern-some real potential for product harm. For example, if a commercial statement misleads us about a drug's safety or an automobile's safety, we stand to be harmed physically. Similarly, if a commercial representation deceives us about the value of stocks or the desirability of a vacation package, we stand to be harmed economically. We thus regulate commercial expression to protect ourselves-physically and economically-as consumers of this or that product.

By that logic, commercial speech that does not harm us should be beyond the pale of government regulation. Ironically, that logic has escaped the minds of many jurists, dating back to the very inception of the commercial speech doctrine in the 1942 case of Valentine v. Chrestensen. There, the Supreme Court, rather off-handedly, allowed the state to ban the distribution of commercial handbills in the absence of a showing of any harm to any consumers.

Valentine notwithstanding, a half-century later, in Cincinnati v. Discovery Network (1993), the Court duly recognized that the government has a legitimate interest in "preventing commercial harms." That interest must, however, be scrutinized so that the invocation of the harm principle comports with the underlying rationale for abridging commercial speech. The harm must be actual and demonstrable.

Likewise, the harm must be more than expression deemed "offensive." Simply because an advertisement or commercial is offensive does not permit the government to ban it, at least not under the commercial speech doctrine. (Though if it is legally obscene or indecent or defamatory, that is a different matter.)

If the notion of harm is applied uncritically and therefore too broadly, unfounded paternalism will usurp the role of consumer protection. That very concern explains why the Court has, in more recent years, rejected paternalistic attempts by federal and state regulators to keep consumers in the dark about matters like the alcohol content of beer or the price of cigarettes. (See Rubin v. Coors Brewing Co. (1995), striking down law prohibiting disclosure of alcohol content, and Lorillard Tobacco Co. v. Reilly (2001), striking down certain bans on cigarette advertising.) Even though the consumption of such legal products is potentially harmful, truthful commercial messages about them cannot be banned. (Consider Thompson v. Western States Medical Center (2002) striking down restrictions on ads for compound drugs.)

Applying this consumer harm principle in ways faithful to its logic reveals why some commercial speech should be protected as if it were political or artistic expression. Two examples help to illustrate my point. Imagine a company-hypothetically, call it Healthy Cycle-that manufactures bicycles. To encourage sales, it releases an array of advertising statements about the safety and durability of its bicycles. Clearly, regulation of the truthfulness of such statements is properly within the purview of government regulation.

The same is not the case, however, if Healthy Cycle makes public statements, in its commercials, about the general desirability of foreign-based manufacturing sites or about environmentally desirable ways to manufacture steel and rubber. Granted, such statements concern, in some broad way, bicycles. But since those statements do not actually concern the inherent qualities of the product, they are not likely to harm us, in any real way, as bicycle consumers.

So, one may reasonably ask, what exactly is a consumer buying when he or she purchases a bicycle? In one sense, the consumer is buying many things ranging from images of happiness to any variety of views on life, labor, and other things that do or do not matter. But in a legal sense, the answer must be far more restrained. Specifically, it must be limited to the relatively narrow definition that we use in the product liability field. Otherwise, when the government regulates what we can or cannot say or publish about such matters, it is encroaching upon protected political and artistic expression, regardless of whether the communicating party is a corporate entity.

By that measure, the California Supreme Court ruling in the Nike case is plainly erroneous. The kinds of statements at issue in that case should not be judged by the false-advertising standards of consumer protection laws. Rather, they should be treated on par with political and/or artistic statements.

The second example is, perhaps, a bit more complex, but I think the harm argument holds nonetheless. Assume that our bicycle company produces a series of lifestyle commercials to air during the Super Bowl. Among other things, this series of commercials presents poets reading their award-winning poems, rock and rap musicians singing their popular songs, and 9/11 heroes urging viewers to support American charities. Each such commercial message ends with soothing sounds and the glowing words "Healthy Cycle."

True, these are all pitches to buy Healthy Cycle's product. But such pitches, however much they may move us, do not harm us as thinking consumers of bicycles. Though commercially driven, the messages are more akin-as federal Judge Alex Kozinski and professor Stuart Banner have argued-to protected artistic expression and should be judged accordingly.

The central issue here is not whether someone would likely bring a lawsuit seeking to enjoin commercial messages by poets or policemen hired by Healthy Cycle. Rather, the key point is that we can readily envision commercial messages by corporations that should be treated as protected First Amendment expression. Analytically speaking, therefore, it is not enough to brand a form of expression as "commercial speech," deserving of diminished protection, simply because a commercial transaction is being proposed. Otherwise, all speech might ultimately be seen as commercial, and deprived of full First Amendment protection. And that idea, of course, was out-and-out rejected in the landmark case of New York Times Co. v. Sullivan (1964).

If certain forms of commercial expression such as that in Nike are not accorded ample constitutional protection, the sphere of our political and artistic expression will inevitably decrease. Ours is a commercial culture, where communication is often inextricably linked to commerce. Politics and art assume meaning, albeit divergent, within that context. Given that, there is something markedly ironic about devaluing the coin of commercial expression in a highly commercial culture-especially when such expression makes that very culture possible.

Bottom line: Bring the harm principle, properly understood, back into the commercial speech equation.


"THEY'RE HERE, THEY'RE QUEER, THEY'RE ARMED." "Orange County’s Pink Pistols are all for peace, love and understanding among straights and gays. Meantime, they’re taking target practice." It also turns out that the movement was apparently inspired by a column written by my friend Jonathan Rauch (one of the nicest, calmest, and least threatening-seeming people you could hope to meet).


"FANS OUTRAGED AT NEW CHARACTER IN THE RETURN OF THE KING." (Many thanks to reader Regina Cullen for passing this along.)


SAN FRANCISCO BOARD OF EDUCATION ON IRAQ: Rob Morse writes in the San Francisco Chronicle:
On Tuesday, the San Francisco Board of Education will vote on a resolution to launch "a major citywide public education effort at every school level on the background of the current crisis concerning Iraq, the options available to the United States government and the people of the United States for attempting to resolve that crisis, and the further consequences of a United States military attack on Iraq." . . .

Even parents against the use of arms are up in arms about this idea, because it promises to be pure propaganda. The resolution refers to the American government's "war against the people of Iraq." Never mind the oppressed Kurds and Shiites and all those Iraqis Saddam Hussein tortured and put in prison.

If you look at the Web sites proposed as sources for educational material, you see a lot about U.S. imperialism and Israeli "genocide" of Palestinians, but you can search very hard and not find the word "Saddam." . . .


SUPREME COURT AGREES TO HEAR BUSINESS SPEECH CASE: The Supreme Court has just agreed to hear Kasky v. Nike, an important case having to do with when speech by a business becomes commercial advertising, and thus becomes less constitutionally protected than other speech. Here's my post about the subject from May 2, when the California Supreme Court decision was handed down:
BUSINESS SPEECH IN PUBLIC DEBATES: Many people have been criticizing Nike (whether accurately or not) for letting its subcontractors make products under supposedly inadequate work conditions. Nike has responded with its version of events.

     The California Supreme Court has just held today that Nike's statements -- because they were in part aimed at getting people to keep buying Nike products -- are "commercial speech," and may thus be punished if they're false or misleading. "Commercial speech," which really means commercial advertising and material similar to it, is less protected than "noncommercial speech"; noncommercial speech may be punished if it's knowingly or recklessly false, but (generally) not if it's misleading or honestly mistaken.

     There's a reasonable argument in favor of this decision; such statements about businesses are indeed partly aimed at getting people to buy the business's products, which is one hallmark of "commercial speech." But I'm troubled by the possibility that businesses' speech about important public matters can now be punished if judges and juries find it to be "misleading", whatever exactly that means -- while the businesses' foes can at most be punished for knowing or reckless falsehoods, and can say misleading things with impunity.

     Here's a hypothetical, for those of you who don't sympathize with Nike (and note that the false and misleading statements by Nike are at this point merely alleged; nothing has been proven at trial). Say that pro-life activists accuse an abortion clinic of using some supposedly heinous or dangerous abortion procedure. The doctors who co-own the abortion clinic say -- in op-eds, in interviews with newspapers, and in public debates, that, no, what we do is ethical, humane, and reliable.

     The clinic is accused not just of making false statements, but of misleading ones. A local jury (and assume that the locale is strongly pro-life) finds that the clinic's statements were "misleading," though not in fact false, and imposes huge damages liability. A judge issues an injunction against such statements (since injunctions against misleading commercial speech are permissible). A good process under the First Amendment, or a bad one?
     I think this is a tough case, because it's not easy to draw a line between commercial advertising and commercial image-building, both of which are aimed (directly or indirectly) at persuading the public to buy one's products. Nonetheless, I think that the Court will draw the line (or, as often happens, will fail to draw a clear line) in such a way as to conclude that Nike here is protected -- the speech by Nike just seems too much like traditionally fully protected speech about important public matters. So my prediction: Nike wins. Confidence: Moderate.

     Predicted lineup: Stevens, O'Connor, Kennedy, Scalia, Souter, Thomas, Ginsburg for Nike; Rehnquist and Breyer against. Confidence: Low.


MORE ON VIRGINIA BARS: Reader Matt Hill writes that, according to the Washington Post, "Katherine K. Hanley (D), chairman of the Fairfax County Board of Supervisors, said the operation was a tool to reduce drunken driving and would be evaluated before it is repeated." Therefore, he argues, "The main reason for going into bars and hassling people was not to put a stop to people getting drunk in bars, but to stop crimes that had not yet been committed -- and which might not have ever been committed by the particular people they took to jail," which is wrong.

     I believe this is a mistaken view about law. There's nothing inherently evil about the government punishing you for violating law A (if you did in fact violate law A) in order to try to prevent your committing law B. In fact, we arrest people for drunk driving not because drunk driving is harmful as such, but because we want to prevent people from actually hitting others while drunk driving -- "to stop crimes (such as vehicular manslaughter) that had not yet been committed." Likewise, we arrest felons who possess guns not because merely possessing a gun is harmful, but because we're trying to stop the felons from committing violent crimes using that gun.

     Of course, sometimes such preventive actions are bad. I don't, for instance, support generally outlawing guns as a preventive measure -- not because all preventive laws are bad, but because I think private ownership of guns has value, and banning such ownership will do more harm than good (and because I think the federal Constitution, and most state Constitutions, protect private gun ownership). Perhaps the same can be said about public drunkenness laws: Maybe letting people get mildly drunk in bars is on balance not that harmful, and is somewhat valuable (simply in the sense that all liberty and all pleasure is somewhat valuable). And perhaps police resources would be more profitably used enforcing other laws.

     But it's a mistake, I think, to assert that it's somehow categorically oppressive or Gestapo-like to enforce a law in order "to stop [or prevent] crimes that had not yet been committed -- and which might not ever have been committed." Depending on the law being enforced, and the crimes that are stopped or prevented, it may actually be very good: Stopping crimes before they're committed is in many ways better than cleaning up the mess after the crime already takes place.


CULT OF PERSONALITY: Paul Krugman's short essay on his site is over-the-top in many ways (thanks to InstaPundit for the pointer), but one part is really quite striking: Krugman's claim about "the Bush administration's creation of a cult of personality."

     Cult of personality? Whose personality? Bush's? Oh, yes, outside my office window I see the sign on the street corner -- "Long live Bush, hero of all times and nations!" Highways, schools, cities all over the country are being renamed after George W. Bush. There is talk of the month of May being renamed Bushember.

     This is a President whose personality is, if anything, mocked by the media and a substantial sector of the public rather than glorified; and while the Administration naturally treats its leader politely, it isn't trying to create anything remotely like a cult of personality, nor could it succeed in any such attempt. And while Bush's stature has rightly risen since Sept. 11, 2001, he is probably a somewhat less commanding and prominent presence in his Administration than Clinton, George H.W. Bush, or Reagan were in theirs (not necessarily a problem for him, but a big problem for the cult of personality thesis).

     One way one can tell when reasoned criticism turns into blind hatred, it seems to me, is when people start piling on completely unfounded and facially senseless charges on top of their plausible ones. Bush is Bad, therefore he must be guilty of all bad things. The cult of personality charge strikes me as being this sort of blindness.


THE VIRGINIA BAR BROUHAHA: I confess that I'm not tremendously moved by the outrage about the police arresting intoxicated bar patrons in Virginia. Bob Barr had a rather over-the-top op-ed about this in the Washington Times, talking about how the police are arresting people "who have not yet committed a crime," about how this is "Gestapolike behavior," and the like.

     In the body of the piece, though, Barr acknowledges an important point that strikes me as pretty devastating to his thesis: "The [police] department [explains] that it is against the law to be intoxicated in a public place." (Va. Code § 18.2-388, "If any person . . . is intoxicated in public . . . he shall be deemed guilty of a Class 4 misdemeanor.") That's right; these people aren't being arrested because they haven't yet committed a crime; they're being arrested if the evidence shows that they have committed the crime of being drunk in public. Now naturally if the police are arresting these people or subjecting them to tests without probable cause to believe that they're drunk in public, that violates the Fourth Amendment; and if they "charg[e] in with full, SWAT regalia," as Barr suggests they "sometimes" do, that's pretty silly. But if they're arresting people for violating the law, well, that's what police are generally supposed to do.

     Barr's response: This explanation "is nonsense, even if, in a hyper-technical sense, correct. Someone perhaps ought to remind Fairfax County that bars actually exist as places in which people drink alcohol; it's not only legal, it's encouraged." Maybe, but apparently under Virginia law bars do not exist as places in which people are supposed to drink to the point of drunkenness. The police department's explanation isn't "in a hyper-technical sense, correct" -- it's just correct, period.

     So is what the police doing perfectly right? Or is it "Gestapolike behavior" straight out of "Minority Report" (another claim that Barr makes)?

     Well, probably neither. This falls into the broad category of likely not very smart behavior by the government that is nonetheless not horribly oppressive. Maybe the legislature should have exempted the inside of bars from the prohibition. Maybe the police should have exercised their discretion not to arrest people for violating the law while they're in a bar. (There are good arguments for either approach, depending largely on whether you think giving law enforcement discretion to decide when to enforce certain laws is good or bad.)

     Maybe the police should have used a higher threshold for deciding who's really drunk and who's not: Va. Code § 4.1-100 says that "'Intoxicated' means a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior," which might potentially cover even people who are mildly tipsy, depending on how broadly it's read. While police apparently tested people's blood alcohol level as well as observing their behavior (since some people might act a bit odd even if they aren't drunk), it might be that people could end up with a blood alcohol level above .08 and "observably affect[ed in] manner, disposition, speech, [etc.]" but not be drunk enough that they deserve to be cited. (I don't know exactly what standard the police were using; of course, if they did arrest people who weren't observably affected, as per the statute, then that would be improper.) Maybe the police should have devoted their time to more important crimes, though if you think that then you should also consider the possibility that arresting people for this crime might prevent some of them from engaging in more serious crimes, such as drunk driving. And maybe annoyed bar patrons -- and, just as likely, annoyed bar owners, who stand to lose a lot of business from this -- should lean on the political officials who are responsible for this

     But this isn't a matter of the Gestapo, or even the denial of basic civil liberties. It seems to be a run-of-the-mill question of law enforcement priorities, and of the amount of slack that should be given to people who are having a good time with a substance (alcohol) that makes the consumer very dangerous to bystanders in some cases though not terribly dangerous in other cases. Treating this as something much more than it is strikes me as unsound, and likely to undermine the attention given to serious civil liberties complaints in other cases.

Thursday, January 09, 2003


THE MOST PLEASANT ASPECT OF GRADING EXAMS: About to call the students who got A+s and As on my copyright exam; they worked hard, and they deserve congratulations.


GRADING DONE! I'm done grading my copyright short-answer questions, and my firearms regulation policy final papers. Now come two days of finishing up the very last editing pass (really, more a matter of checking the edits made and entered by the law review) on my Slippery Slopes piece; then finishing up my Academic Legal Writing: Student Notes and Seminar Papers book, which I'm supposed to send the publisher by the end of the month; and then on to writing an interesting article, tentatively titled Freedom of Speech and Crime-Facilitating Speech, which asks: When may the government restrict speech because it informs people how to more easily commit crimes (or other bad acts), or how to more easily evade getting caught after committing them? I've been thinking about this subject for a couple of years now, but I've just recently started writing, and I'm pretty excited about it. It should be a fun semester.


SIMPLE PAST, NOT PRESENT PERFECT, YOU FOOL: Slate's Bushism of the Day has yet again caught President Bush in a deeply newsworthy error:
One year ago today, the time for excuse-making has come to an end.
Shameful! After all, the right of way of saying this is either "One year ago today, the time for excuse-making came to an end" (simple past tense, not the present perfect) or perhaps, depending on what exactly was meant, "Today, after one year, the time for excuse-making has come to an end." Ha ha ha.

     Uh, OK, whatever. Indeed, Bush made what seems to be a tense error. Now see if you can go through one day without misspeaking this way. I don't get it; this isn't a serious error, it isn't a telling error, it isn't even a funny error. It's just the sort of mistake that normal people sometimes make when speaking. Here, by the way, is the whole paragraph, for context:
Over the years, parents across America have heard a lot of excuses -- that's a reality -- and oftentimes have seen little change. One year ago today, the time for excuse-making has come to an end. With the No Child Left Behind Act, we have committed the nation to higher standards for every single public school. And we've committed the resources to help the students achieve those standards. We affirm the right of parents to have better information about the schools, and to make crucial decisions about their children's future. Accountability of results is no longer just a hope of parents. Accountability for results is now the law of the land.
In context (something that Bushism of the Day studiously avoids providing, either directly or via a link), it's a pretty normal paragraph, full of normal English -- though with one glitch of the sort perfectly literate English speakers routinely make, especially in the middle of a busy day. And the newsworthiness of this is . . .?

     (For more posts about Bushisms of the Day, click here.)


PROFESSORS -- DO YOU HAVE "OFFENSIVE SEXUAL OBJECTS" IN YOUR OFFICE? Here's an article about a recent incident at Ohio University (a government-run school, so the First Amendment applies there) (emphasis added):
Ohio University officials have taken action for the first time to reprimand journalism Professor Patrick Washburn for unprofessional behavior, the first move after an independent investigation. . . .

[I]ndependent counsel James Sillery's . . . findings included one instance of sexual harassment against Washburn, related to complaint that he showed a female student a nutcracker in the shape of a woman's legs.

Krendl will place an official reprimand in Washburn's personnel file. Washburn will be required to write a letter of apology to the female student he harassed and remove all offensive sexual objects from his office.

Washburn also will be required to consult with staff members designated by William Smith, director of institutional equity, "to be educated about behaviors and objects that are offensive and contribute to a hostile workplace and learning environment," according to Krendl's decision. . . .

In addition to the sexual harassment finding, Sillery also found six instances of unprofessional and non-collegial conduct stemming from Washburn's perceived hostile conduct towards other journalism faculty members.

Krendl's decision is a reaction only to the sexual harassment finding. . . .
Now it might well be that the offending professor behaved unprofessionally -- I don't know who's right and who's wrong on this as a matter of professionalism, decency, or just good sense -- and perhaps he even should have been taken to task (formally or informally) for his showing the nutcracker to the student, depending on the circumstances. Individual conversations between professors and students yield interesting and complex questions of academic freedom and First Amendment law.

     But to say that a professor is barred from having "offensive sexual objects" strikes me as pretty troublesome in an academic context, given the vagueness and potential breadth of the phrase. If the university means material that might give rise, under its policy, to a sexual harassment claim, that's potentially very broad, since the university harassment policy covers:
Nonsexual verbal or physical conduct that denigrates or shows hostility toward another because of the person's gender can be the basis for a hostile, offensive, or intimidating environment claim. Gender-based conduct can take the form of abusive written or graphic material; epithets; sexist slurs; negative stereotyping; jokes; or threatening, intimidating, or hostile acts.
Would art prints that are sexually suggestive or contain nudity ("graphic material" that some might find to be "offensive[ly] sexual," that has led to harassment complaints in other places, and that is covered by the literal terms of some past anti-harassment injunctions) qualify? Coffee mugs with supposedly sexist slogans ("negative stereotyping" and "jokes" that some might find to be "offensive[ly] sexual")? What about the "behaviors that are offensive" about which the professor is being "educated" -- would sexually themed humor qualify? (I've judiciously used some such humor when teaching about obscenity law in my First Amendment class.) Recall that the offense that got the professor in trouble wasn't displaying hard-core pornography -- it was a likely tasteless but likely not highly explicit sexually themed gag (unless nutcracker design is much more advanced than I had thought it to be).

     No coverage so far of this in the media outside the campus newspaper, but it sounds like an interesting incident.

UPDATE: A representive of the Ohio Chapter of the American Association of University Professors has weighed in on Prof. Washburn's side.


MORE ON THE 14% GENDER GAP ITEM: Michael Barone, who knows about such things, writes:
As a former pollster, I think you're quite right to suggest that it's not right to say that the difference between 47-25 and 40-32 . . . is a 14-point gender gap. I always characterize this as a 7-point gender gap (and therefore one totally unworthy of comment, since it's typical of results on all sorts of questions since Reagan was elected in 1980).

The reason it's misleading to readers to refer to a 14-point gender gap is that they're accustomed to thinking of polls as having an error margin of plus or minus 3 or 4 percent. But when you're measuring the difference between pluralities rather than the difference between opinions, the appropriate error margin is double that.


MORE ON THE ELECTORAL COLLEGE AND EQUAL PROTECTION: Reader Jason Steffens writes, responding to my post about the electoral college and the Equal Protection Clause:
I think another answer to your reader's question regarding at least the 14th Amendment is that the 14th Amendment only applies to *state* action. As such, the federal government (through the Constitution) giving greater weight (relative to state population) to the electoral votes of some states cannot violate the equal protection clause because the state action requirement is not met.
That's a good argument as a matter of text and original meaning, but it runs up against the Court's precedents (just as the argument that the Equal Protection Clause doesn't apply to voting, while probably sound as a matter of text and original meaning, does the same): The Supreme Court has held that equal protection principles apply to the federal government just as much as to the states. The Court did this most famously in Bolling v. Sharpe (1954), which held that "separate but equal" was unconstitutional in the District of Columbia, which is directly or indirectly governed by Congress, as well as in states; but it also applied the same equal protection principles to federal laws as to state laws both before then and since then.


HATE CRIMES AND RACISM-BAITING: Richard Cohen has a great column on the dangers of spurious charges of racism:
[The] Democratic Party . . . has found it impossible to move off the racial dime, often staying silent or complicitous when others waved the bloody shirt of ol' time racism -- usually just to propel African Americans to the polls.

This is precisely what happened in the last presidential campaign when the NAACP all but placed the body of James Byrd Jr., the victim of a racial murder, at George W. Bush's doorstep. Byrd's daughter, Renee Mullins, narrated the commercial and said, "So when Gov. George W. Bush refused to support hate-crimes legislation, it was like my father was killed all over again."

This tasteless ad, run just before the presidential election, was not denounced by a single prominent Democrat. It tried to link Byrd's gruesome murder to Bush's opposition to hate-crime legislation. That was pretty close to, if not indistinguishable from, calling him soft on racism. . . . Take a principled stand against this or that civil rights program and you're going to be denounced as a racist.

Hate-crime legislation is an example. Why it is needed is beyond me. Byrd's killers were hardly going to be daunted by such legislation, as what they did -- murder -- was already a capital crime. (Two of the three killers have been sentenced to death and the third to life in prison.) . . . Yet, the entire ugly incident -- an aberration, really -- was treated as if the era of lynchings was not over and something had to be done quickly. To think otherwise was somehow racist. . . .

It's the same with affirmative action. Say you oppose it -- believing it is a worthy end but achieved by dubious means -- and you stand a fair chance of being accused of racism. Gore himself came pretty close to that when, in a 1998 speech, he likened opposition to affirmative action to a duck blind. "They hide behind the phrase ['a colorblind society'] and just hope that we, like the ducks, won't be able to see through it."

Yes, that is sometimes the case. But opponents of affirmative action include quite a few blacks, who cannot be reasonably accused of racism. No matter. The prospect of having to defend yourself against what amounts to the most powerful charge in American politics is enough to make anyone just shut his mouth and, if he is in Congress, vote the way of political correctness.

This race-based politics is not as odious as, say, Lott's. . . . But it, too, harks back to the past -- a past when the entire question of race was infused with moral certainty. . . . Now, though, the Democrats must deal with the present. And that means dealing with complex issues, such as affirmative action and hate-crime legislation, that to many Americans seem far removed from lynchings or segregated drinking fountains. Yet too many Democrats . . . are quick to draw a line and ask: Which side are you on? It makes others ask a different question in response: What era are you living in?


A GREAT PIECE FROM CATHY SEIPP, about feminism, good manners, good sense, and other things.


GAYS AND FAMILIES: Andrew Sullivan makes what I think is a very good point:
I found James Q. Wilson's paean to the family to be very persuasive. I was particularly glad he saw how family structure can change over time in ways that are good and inclusive -- especially with regard to the status of women. Fatherhood is indeed vital . . . . I might add one thing: fatherhood is especially important for gay kids. So many, when they come to realize their sexual orientation, withdraw from their father out of fear of his rejection; and some fathers withdraw after discovering or somehow sensing their child's difference. This is terribly destructive to both, may take decades to heal properly, and is, I think, a key reason for some of the psychological problems gay men and women deal with. Notice here how being pro-family and being gay-friendly are not exclusive categories. Far from it. Gay people are an intrinsic part of families, even very traditional ones; and one of the goals of the fight for equal marriage rights is to find a way to bring gay people more fully and deeply into the bonds of family life. How sad that some conservatives don't seem to see this, and in fact compound the psychological damage done to families with gay members by perpetuating fear and panic about homosexuals. Compassionate conservatism must find a way to bring the virtues of family life to everyone. Yes, leave no child behind. But that includes the gay ones.
I'm not as firmly pro-gay-marriage as Andrew is, though I'm tentatively in favor of it. But I do think that Andrew's general point is a very important one.

     Whether one approves of homosexuality or not (I see nothing wrong with it, but I know others disagree), it's a real phenomenon that isn't going to go away. There are gays and lesbians out there; there were even when homosexuality was subject to very serious social and legal penalties; they're not going away. The question is: What do we do about them? Do we encourage them to form stable unions, or not? If they are in our families, do we fully accept them, or allow this to alienate them from us? Even someone who thinks homosexuality is against God's plan should, I think, ask what is the most helpful and loving way to deal with this reality; and neither criminalization, nor ostracism, nor, I suspect, denial of the ability to marry is likely to be the right answer.


HORATIO HORNBLOWER: Just finished watching the taped set of the A & E Horatio Hornblower miniseries (the original 4 episodes, plus the follow-up cassette), and loved it. I'd never read the original books, and I'm generally not wild about nautical tales, but this was really first-rate. I just wish they had subtitles.


ALARMISTS UNITE. For those of you who, like me, were appalled by the descriptions of the Pentagon's Total Information Awareness project when it started being discussed publicly a month or two ago, consider this a friendly reminder to email your congressman (you can also go here) and your senators about it now that business is resuming in Washington. We need serious inquiry into these immensely unappealing possibilities before they are developed any further.

Wednesday, January 08, 2003


HAMDI AND PADILLA. I think of the Hamdi litigation as just the undercard for the fight to come in the Padilla case, where the question is harder and more important: it involves the standard of proof the government must meet in order to detain, indefinitely and incommunicado, an American citizen arrested in this country and believed to be an unlawful enemy combatant. The district court in Padilla's case set the standard of proof about as low as possible: such detention is lawful if there is "some evidence" to support it. The Supreme Court has defined the "some evidence" standard in other contexts to mean a very slight showing indeed -- seemingly indistinguishable from "any evidence." I regard this as an enormously dangerous ruling, but since it was just a district court decision there is no reason for great alarm yet. The Supreme Court almost certainly will decide Padilla or another case like it, even if it ducks the somewhat different question in Hamdi as Eugene predicts.

     The positions the Bush administration has taken regarding Padilla -- e.g., that it has basically unreviewable discretion to jail American citizens in the United States if it believes them to be unlawful combatants -- have been highly dispiriting.


EQUAL PROTECTION: A reader asks:
What happens when a constitutional amendment is in direct conflict with another (original) part of the constitution? Does the amendment have greater weight since it is "amending" the original document or does part of the original document have the greater weight because it was there longer (like a precedent?). I would guess in a perfect (non-political) world the first.

I ask this in reference to the equal protection clause of the 14th amendment as interpreted regarding voting rights. This seems to me to conflict with the whole electoral college deal, i.e. a vote for president in wyoming has more power that a vote in california. I don't
have the exact numbers on hand but it's something like 100,000 voters per elector in wyoming vrs. 150,000 voters per elector in California.
(One might say the same, incidentally, about the unequal representation in the Senate, though that's also specifically entrenched in Article V of the Constitution.)

     This is an interesting question, and the answer has to do with the basic legal principle that a new law will not be treated as implicitly repealing an old unless there's solid reason to think (from its text or otherwise) that this was the point of the law. Yes, I know that there are exceptions to this principle, and misapplications of it; but it's basically sound, and generally followed, for constitutional provisions as well as for statutes.

     So when the Twelfth Amendment, for instance, changed the procedure for electing the President, that was treated as repealing the contrary provisions of the original Constitution. But when the Fourteenth Amendment mandated equal protection, that was not interpreted as repealing those inequalities that were clearly part of the Constitution, and that no-one at the time saw as being violated by the Equal Protection Clause.

     As it happens, there are good arguments that the Fourteenth Amendment was not understood by its ratifiers as applying to elections at all, and that the one-person-one-vote decisions are unsound as a matter of original meaning. But even given that the Fourteenth Amendment has been interpreted this way, it's unlikely to be interpreted -- and it shouldn't be interpreted -- as repealing the systems that the Constitution mandates for the election of the President, unequal as it may be.


PICKLED HERRING: I was just eating some of my favorite pickled herring today -- Gardums, lightly salted and packed in oil, imported from Latvia. Most pickled herring tastes basically like vinegar; this stuff is gloriously but subtly fishy (look, if you don't want fishy-tasting, why are you eating pickled herring?). Just delicious. I'm not sure how broadly available it is, but I found it at my local Russian deli, and I suspect that many such delis (as well as other European delis) will have it. Highly recommended.


TOLKIEN THE LUDDITE? A Slate column makes an interesting point about this. I love the closing:
At Helm's Deep the men and elves get by purely on quickness of wit and strength of arm, while the orcs deploy all manner of newfangled technology—explosives, catapults, siege ladders. The victory of men is a victory of the heart over the machine. In the real world, though, technological superiority—and in particular the ability to turn it to pragmatic military ends—has historically been the engine of British, and Western, military dominance. The longbow at Crécy and Agincourt, the Enfield rifle and massed artillery at Inkerman, the Martini-Henry rifle at Rorke's Drift, and radar during the Battle of Britain ensured victory for outnumbered armies. . . . [T]he machine played a central role in every real Helm's Deep in Western history.

On a deeper level, the machine has also been the engine of the West's economic vitality. And in that sense, it's Tolkien's Luddism that defines The Lord of the Rings as not allegorical but escapist, since it's an attempt to imagine England without the very things that made England possible. It may be comforting to think that bravery and a good heart are enough to repel the Dark Lord. But having guns that fire 4,000 rounds a minute makes a difference, too.


Miranda rights do apply to all of a person's multiple personalities, a Helena District Court Judge ruled last week in the case of a Helena woman accused of stabbing her longtime roommate last year.

Judge Thomas Honzel threw out several statements made by attempted deliberate homicide suspect, Tessa Haley, at the time of her arrest, on the basis that the statements made — presumably by a multiple personality of Haley's, named Martha — came after Haley exerted her right to have an attorney present. . . .

According to court documents, officers with the Helena Police Department responded to an address on the first block of Valley View at about 7:30 p.m. on Sept. 2 after receiving a call from a woman identifying herself as "Martha," who said she had just stabbed another woman.

When officers arrived, they found Haley — wearing a surgical mask, with blood on her clothes — working on her computer inside the house.

Haley, who said she wore the mask because she was susceptible to germs, denied any knowledge of the 911 call that was made from her residence, or of anyone named Martha.

In the meantime, according to the court file, police received a phone call from officials with St. Peter's Hospital who reported that they were treating a woman with a 2-inch stab wound in her back. The victim identified Haley as her attacker.

The officers placed Haley in handcuffs and advised her of her Miranda rights . . . .

Due to some strange behavior on Haley's part, officers asked her if she would take a breath test to ascertain whether she had been drinking or taking drugs that evening, court documents indicate.

At that point, Haley said she should probably talk to a lawyer, and officers ceased questioning her.

However, as Haley and one of the officers waited in the kitchen, the officer noticed a change in Haley's personality, changes that culminated in Haley growling at the officer and demanding to know what was going on.

Then, she identified herself as "Martha," and when asked by the officer if she knew the victim in the case, said, "I stabbed her," the police reports read. . . .

While at the hospital, court documents indicate, Haley continued to make statements relating to the stabbing, including one in which she said she couldn't finish killing the victim because she ran off.

Haley's public defender, Randi Hood, argued that none of "Martha's" statements should be allowable in court because Haley had already invoked her right to an attorney when the statements were made.

"It is inconceivable that one personality could relinquish the right to have an attorney present before questioning to the detriment of other personalities," Hood wrote. . . .


SUPREME COURT REVIEW OF HAMDI DECISION: I'm pretty sure that the case is now ready for Supreme Court review, and that Hamdi's lawyers will be filing a petition for certiorari. Will the Supreme Court decide to hear the case? Argument against: There's no split among the lower courts, there's no disagreement with a binding Supreme Court precedent, no split among the three branches (as there would be if a court struck down a federal law as unconstitutional), and the Court doesn't have any obligation (or even any strong reason) to hear cases just because they're important, interesting, and high-profile. Argument for: This is such an important, interesting, and high-profile case that the Court couldn't / shouldn't pass it up.

     My prediction: The Court will not hear the case. Confidence: Low.


  1. When a person is captured "in a zone of active combat in a foreign theater of conflict," the executive branch may detain him as an enemy combatant, without any further judicial review except to determine that the executive branch has indeed asserted that the person is an enemy combatant. "Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration [broadly outlining the executive branch's findings and conclusions about Hamdi] is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition."

  2. The court did not decide what would happen if the detainee was an American citizen captured on American soil. "We have no occasion . . . to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. We shall, in fact, go no further in this case than the specific context before us -- that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces."

  3. The court rejected the argument that 18 U.S.C. § 4001(a), "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," bars the detention.
    Even if Hamdi were right that § 4001(a) requires Congressional authorization of his detention, Congress has, in the wake of the September 11 terrorist attacks, authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons.” Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). . . . [C]apturing and detaining enemy combatants is an inherent part of warfare; the “necessary and appropriate force” referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops. Furthermore, Congress has specifically authorized the expenditure of funds for “the maintenance, pay, and allowances of prisoners of war [and] other persons in the custody of the [military] whose status is determined . . . to be similar to prisoners of war.” 10 U.S.C. § 956(5) (2002). It is difficult if not impossible to understand how Congress could make appropriations
    for the detention of persons “similar to prisoners of war” without also authorizing their detention in the first instance.
  4. The court rejected Hamdi's argument that "Article 5 of the Geneva Convention applies to Hamdi’s case and requires an initial formal determination of his status as an enemy belligerent 'by a competent tribunal.'"
    This argument falters also because the Geneva Convention is not self-executing [i.e., doesn't by itself provide a private right of action absent implementing legislation]. . . . [W]hat discussion there is of enforcement [in the Convention] focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign nations. If two warring parties disagree about what the Convention requires of them, Article 11 instructs them to arrange a “meeting of their representatives” with the aid of diplomats from other countries, “with a view to settling the disagreement.” Similarly, Article 132 states that "any alleged violation of the Convention” is to be resolved by a joint transnational effort “in a manner to be decided between the interested Parties.” We therefore agree with other courts of appeals that the language in the Geneva Convention is not “self-executing” and does not “create private rights of action in the domestic courts of the signatory countries.” . . . This is not to say, of course, that the Geneva Convention is meaningless. Rather, its values are vindicated by diplomatic means and reciprocity, as specifically contemplated by Article 132. There is a powerful and self-regulating national interest in observing the strictures of the Convention, because prisoners are taken by both sides of any conflict. This is the very essence of reciprocity and, as the drafters of the Convention apparently decided, the most appropriate basis for ensuring compliance. . . .

    Even if Article 5 were somehow self-executing, there are questions about how it would apply to Hamdi’s case. In particular, it is anything but clear that the “competent tribunal” which would determine Hamdi’s status would be an Article III court. Every country has different tribunals, and there is no indication that the Geneva Convention was intended to impose a single adjudicatory paradigm upon its signatories. Moreover, Hamdi’s argument begs the question of what kind of status determination is necessary under Article 5 and how extensive it should be. Hamdi and the amici make much of the distinction between lawful and unlawful combatants, noting correctly that lawful combatants are not subject to punishment for their participation in a conflict. But for the purposes of this case, it is a distinction without a difference, since the option to detain until the cessation of hostilities belongs to the executive in either case. . . . [Unlawful combatants are] subject to mere detention in precisely the same way that lawful prisoners of war are. The fact that Hamdi might be an unlawful combatant in no way means that the executive is required to inflict every consequence of that status on him. The Geneva Convention certainly does not require such treatment.
  5. The court acknowledged that its conclusion might leave some people detained who shouldn't be detained.
    The murkiness and chaos that attend armed conflict mean military actions are hardly immune to mistake. Yet these characteristics of warfare have been with us through the centuries and have never been thought sufficient to justify active judicial supervision of combat operations overseas. To inquire, for example [as the district court had], whether Hamdi actually fired his weapon is to demand a clarity from battle that often is not there. The district court, after reviewing the Mobbs affidavit, did not “have any doubts [Hamdi] had a firearm [or] any doubts he went to Afghanistan to be with the Taliban.” To delve further i to Hamdi’s status and capture would require us to step so far out of our role as judges that we would abandon the distinctive deference that animates this area of law.
    More broadly,
    Article III courts are ill-positioned to police the military’s distinction between those in the arena of combat who should be detained and those who should not. Any evaluation of the accuracy of the executive branch’s determination that a person is an enemy combatant, for example, would require courts to consider, first, what activities the detainee was engaged in during the period leading up to his seizure and, second, whether those activities rendered him a combatant or not. The first question is factual and, were we called upon to delve into it, would likely entail substantial efforts to acquire evidence from distant battle zones. The second question may require fine judgments about whether a particular activity is linked to the war efforts of a hostile power -- judgments the executive branch is most competent to make.
  6. The court held that these rules apply to detainees who, like Hamdi, are U.S. citizens, as well as to foreign citizens. "[T]he fact that [Hamdi] is a citizen does not affect the legality of his detention as an enemy combatant."

  7. The court rejected Hamdi's claim that the detention is no longer lawful because the hostilities have ended. "Whether the timing of a cessation of hostilities is justiciable [i.e., subject to judicial review] is far from clear. See Ludecke, 335 U.S. at 169 (“Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled.”). The executive branch is also in the best position to appraise the status of a conflict, and the cessation of hostilities would seem no less a matter of political competence than the initiation of them. . . . In any case, we need not reach this issue here. The government notes that American troops are still on the ground in Afghanistan, dismantling the terrorist infrastructure in the very country where Hamdi was captured and engaging in reconstruction efforts which may prove dangerous in their own right. Because under the most circumscribed definition of conflict hostilities have not yet reached their end, this argument is without merit.

  8. Finally, the court concluded with this:
    It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. We earlier rejected the summary embrace of “a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so.” Hamdi II, 296 F.3d at 283. But, Hamdi is not “any American citizen alleged to be an enemy combatant” by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces.

    Cases such as Hamdi’s raise serious questions which the courts will continue to treat as such. The nation has fought since its founding for liberty without which security rings hollow and for security without which liberty cannot thrive. The judiciary was meant to respect the delicacy of the balance, and we have endeavored to do so.


NEW 4TH CIRCUIT DECISION IN THE HAMDI MILITARY DETENTION CASE. About to start reading it. So far, the key summary seems to be:
On this third and latest appeal, the United States challenges the district court’s order requiring the production of various materials regarding Hamdi’s status as an alleged enemy combatant. The district court certified for appeal the question of whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi’s capture was sufficient by itself to justify his detention. Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition.


THE TROUBLE WITH EDUCATION: Here's what noted psychology researcher Steve Pinker has to say about this. Though I'm not expert enough to know for myself whether this is true, it seems quite plausible, and I've heard others make the same point:
First and foremost, we must apply a scientific mindset to the educational process. People outside of the educational establishment are often shocked to learn how little in instructional practice has been evaluated using the standard paraphernalia of social science -- control groups, random assignment, data collection, statistics. Instead, classroom practice is set by fads, romantic theories, slick packages, and political crusades. We already know that some methods of teaching reading work better than others; we need more of these assessments, and faster implementations of what works into classroom settings.
(Emphasis added.)


INDIANA PREFERENCES: Robert Heidt offers a first-hand account of minority preferences at the Indiana University-Bloomington School of Law, and it isn't pretty.


GENDER GAP: Gender Gap is 14 Percentage Points on whether respondents would vote to reelect Bush in 2004, reports the headline for a new poll. But if one reads further, it turns out that Bush's "would reelect" numbers are 47-25 among men and 40-32 among women. The 14 is the difference between the 22-point gap for men and the 8-point gap for women, double the 7 points that one would get if one measured the gender gap by simply subtracting the "would reelect" figure for women from that for men.

     Now for all I know the method used by this survey might be one normal way of measuring gender gaps; I cannot claim that this is somehow the wrong definition, and to its credit the press release about the poll reports the raw numbers. But I suspect that many people would assume a "14-point gender gap" means something quite a bit more than 47-25 vs. 40-32. So I think this is just another reminder that whenever one hears brief summaries of polls (and I suspect that the "14-point gender gap" will be a more common brief summary in press accounts than "47-25 vs. 40-32"), it's good to also check the details to make sure that one is indeed understanding the results correctly.

Tuesday, January 07, 2003




PRO-DEATH PENALTY PROFESSORS: Last week I was puzzled by media interest in a letter signed by 400 anti-death penalty academics; today I am even more puzzled by this front-page above-the-fold USA Today article on the views of "about a dozen" pro-death penalty academics. Their research sounds quite interesting (I havent read it), but is it really front-page news that there are a dozen professors who are in favor of the death penalty and who do research in the area? Surely you can find a dozen professors who believe just about anything. Once again, it seems that the press is using the opinions of academics as a cheap way of providing credibility for a set of policy views. As I put it last week, the opinions of a bunch of people are just the opinions of a bunch of people, but the opinions of a bunch of people with faculty appointments can be pitched as the considered views of "the experts."

     UPDATE: A reader responds with the following comment:
Sure you can find 12 faculty to support any . . . proposition, but that doesn't obliterate our natural and appropriate inclination to refer to the opinions of experts when we are evaluating some complex phenomena. Why are market-oriented academics and writers so prone to . . . deprecate appeals to authority? Is it largely because the other side uses it so often in a fraudulent manner?
I respect the authority of academics so long as the academics are speaking on issues about which they are indeed authorities. If a bridge collapses, I want to hear what a professor of civil engineering has to say about it. (For that matter, if a reporter wants to ask me a question about computer crime law, I am happy to speak with them, as I consider this an area within my own expertise.) My problem is that professors are often quoted on issues that ha little to do with their expertise. Their academic positions add credibility to their views, but shouldn't.

     Consider views of the death penalty held by law professors. I imagine that most current law professors had views of the death penalty before they became law professors, and that today they continue to believe in the views they held then. I don't think these views suddenly became "expert" views when these law professors entered academia. So professors' views about the death penalty say more about the views of people who decide to become professors than the views of the "experts."

     Is there a connection between being "market-oriented" and being skeptical of experts, as the reader suggests? Perhaps those who are market-oriented are more willing to defer to the views of the public and their choices, and less convinced that the public needs guidance and intervention from experts (in matters economic and otherwise). But this is painting with an awfully broad brush.


DID YOU KNOW that blog and Volokh share a common etymological root?

UPDATE: Hanah disputes my etymology and offers one of her own.


UNCOVERING THE FACTS: Clayton Cramer, who, even before Jim Lindgren, uncovered many of the most serious errors in Bellesiles' Arming America has a very interesting and thoughtful piece in History News Network on the problems with the history academy. Much worth reading.


ARE YOU ONE OF THE "INTERNATIONAL-LOOKING PEOPLE"? I've recently posted (here and here) about a few columns by Paul Craig Roberts that I recently read. But they also reminded me of another column of his that I remembered reading a few years back, this one on immigration (Wash. Times, June 16, 1999). Readers of this blog may know that I am moderately pro-immigration, but that I also recognize that there are powerful, reasonable arguments for limiting immigration (see for instance a post on this blog's very first day). But consider whether the following (emphasis added, here and below) is indeed a reasonable argument:
Immigration policy has produced an extraordinary change in the ethnic composition of the U.S. population. Experts tell me it has been three decades since Europeans comprised a significant percentage of new citizens. In 1965, the Democrats, who lost the South, changed the immigration rules in order to build African, Asian and Hispanic constituencies that would vote Democratic.

     In effect, native-born U.S. citizens are being "ethnically cleansed," not by violence but by their own immigration policy.
"Native-born U.S. citizens are being ethnically cleansed by African, Asian and Hispanic immigration." Now this is not an argument against immigration generally, and in favor of protecting all native-born U.S. citizens from immigrants, since the concern is about specifically non-European immigration. European immigrants are apparently not an ethnic threat; only Africans, Asians, and Hispanics are.

     What's more, which native-born U.S. citizens are in danger of "ethnic cleansing" from African, Asian, and Hispanic immigrants? Well, surely native-born black Americans, Asian-Americans, or Hispanics, even ones who were in the U.S. in 1965, wouldn't be "ethnically cleansed" by an influx of African, Asian, or Hispanic immigration. Apparently the concern is with the ethnic cleansing of white native-born U.S. citizens -- that's the only way that I think one can understand that remark.

     But let's move on:
With the United States taking in 1.2 million immigrants annually, and with that number again entering illegally, cultural homogeneity has been the casualty. When I first came to D.C. 25 years ago, the only international-looking people one saw were in the diplomatic community. Now it is every third person.
Look closely at that phrase: "international-looking people." This is presumably the antonym of "American-looking people," but what exactly does that mean? I assume that it refers to the non-European, "African, Asian and Hispanic"-looking people (what else can it be referring to?). But aren't there people in our very nation, native-born U.S. citizens with roots in America dating back centuries or at least many decades, who look African, Hispanic, and Asian?

     It seems to me that there are two options: Either black, Hispanic, and Asian Americans are as much part of our nation as Europeans, in which case it's hard to imagine who's left to be "international-looking" (I take it that the author wasn't commenting only about, say, South Asians, many of whom have a "look" that wasn't visible in large numbers in the U.S. until recently). Or "international-looking" means, well, "non-white" -- in which case what does that say about the author's vision of who is a genuine member of our own nation?

     Now there are indeed some plausible arguments to be made in favor of preferring immigrants whose cultures we think would be compatible with our own (and in fact we do have a culture that's broadly shared by most Americans of all races, and not shared by many people in other countries). But these cultural arguments should have little to do with race (which is what the distinction between "international-looking" and "European" people seems to be). For instance, if you're concerned about people coming from a culture where most people aren't well-educated, that doesn't explain why we should worry about educated immigrants from, say, Hong Kong, Taiwan, South Korea, or India. If you're concerned about people coming from a culture which has little experience with democracy, that doesn't explain why we should prefer East Europeans (like my family) over people from India (an often dysfunctional democracy, but that's also been true of some European countries), South Korea, or Taiwan.

     The column goes on to chronicle various problems supposedly caused by inter-ethnic tensions, to criticize race preferences, and to make some other points that are at least plausible, though I'm not sure that they're quite right. But then it closes on an interesting argument:
[People] see the demise of the native-born in a recent occurrence in Richmond, Va. There a city councilman, Sa'ad El-Amin, has forced the removal of a mural of Robert E. Lee, the most beloved of all Virginians.

     When I was a kid even Northerners respect Robert E. Lee. Not a word was heard against him. But Sa'ad El-Amin compares Gen. Lee to Adolf Hitler.

     Does this lack of good will toward "white culture" mean the portraits of George Washington and Thomas Jefferson will be removed from our currency and their historic homes, Mount Vernon and Monticello, closed? If mass immigration means the extinction of American culture, we had best rethink it.
Well, I'm no fan of demonizing Robert E. Lee, but neither am I a fan of canonizing him. Let me pose a few questions:
  1. What does the "demise of the native-born" have to do with the views of Sa'ad El-Amin, who was born Jeroyd Greene, and who is apparently one of the "native-born U.S. citizens" whom the column is supposedly trying to protect from "ethnic cleansing" (according to news accounts, he's a black nationalist from New York who went to college and law school in the U.S. in the 1960s)? Press accounts suggest that he's not a very nice man, but his sins, whatever they may be, cannot be laid at the door of "international-looking" immigration, and neither can his political power (only 4% of the population of the City of Richmond is foreign-born, and presumably the foreign-born fraction of the voting population is even lower).

  2. Was not a word heard against Robert E. Lee even from blacks (both Northerners and native-born Virginians), who might have some special reason to think that Lee's bravery and skill, while personally admirable, was in a rather misguided cause? (And if that's so, is it because blacks also respected Lee, or because at least until the mid-1960s many of them might have been understandably physically afraid to express their views?) I somehow suspect that many black Virginians -- who make up 57% of the population of the City of Richmond -- might take a dim view of Robert E. Lee, even if they aren't black nationalists.

  3. What should we think when people say that Robert E. Lee -- a man known for brave and skillful defense of his state, but in the cause of a war to sever the United States, and a war started by secession proclamations that among other things stressed the need to preserve slavery ("Our position is thoroughly identified with the institution of slavery -- the greatest material interest of the world. . . . [A] blow at slavery is a blow at commerce and civilization") -- is "the most beloved of all Virginians," apparently ranking ahead of George Washington and Thomas Jefferson, two of the leading architects of our nation, whose most noteworthy achievements related to defense of liberty and equality (even if they realized these ideals only imperfectly)?

  4. Is Robert E. Lee really the best standard-bearer for "white culture," and is it really proper to gauge his apparently universal popularity by focusing only on his popularity among whites (unless I missed something and he is also, somewhat improbably, broadly "loved" by blacks as well)?

  5. Might American culture be properly understood as including the culture of all Americans, including perhaps the "international-looking" ones as well as us whites, those who disapprove of Lee (including millions whose families have lived in America for generations) as well as those who approve of him, and not just "white culture"?
     Our nation needs thoughtful debate about immigration, about affirmative action, and about political correctness (the latter two being the subjects of another Roberts column criticized in this post). It's wrong when some on the Left try to condemn all skeptical opinions on these subjects as being supposedly racist.

     But is there much contribution to debate in opinions that complain that "African, Asian, and Hispanic" immigrants are "international-looking," even though they often look just like many native-born Americans? That somehow "see the demise of the native-born" in the actions of a seemingly native-born (though black, and not Robert-E.-Lee-loving) city councilman, whose constituents are overwhelmingly native-born? Or that criticize "African, Asian, and Hispanic" immigration (as opposed to "European" immigration) as "ethnic cleansing"?


YIDDISH AND THE LAW: As the coauthor of a leading article on Yiddish and the Law -- OK, one of the very few articles on Yiddish and the law -- I thought I ought to pass along an interesting item. As all lawyers know, throughout the late 1700s and 1800s, "reporters" (the books that reported court decisions) were cited by abbreviating the name of the publisher of the book (also called a "reporter"). The abbreviation was commonly the first syllable, for instance "1 Wheat. 20" instead of "14 U.S. 20," referring to a book of Supreme Court cases published by Henry Wheaton. This tradition died as to the U.S. Supreme Court in the mid-1870s.

     But, as my friend Stewart Baker told me last Thursday, had the tradition survived until the mid-1960s, all Supreme Court cases from 1964 to 1979 would have been cited as, for instance, "28 Putz. 15 (1971)," in honor of Reporter of Decisions Henry Putzel.


GOOD THING: Others, it turns out, agree with my loathing of "a good thing": The term made it on the Lake Superior State University List of Banished Words. I don't buy the justification for banishment:
ITS A GOOD THING -- "This phrase is 'ramped up' (banished in 2002) for over-use," says Mark Dobias of Sault Ste. Marie, Michigan. "The question is: good for whom? For example, insider trading may be a good thing, but only if one does not get caught. Then it is a bad thing."
The real problem is that it's cliche, and unnecessarily verbose, not that it leaves open the question "good for whom?" (which is often clear from context). But I'm glad that I have allies in my crusade. (Thanks to reader Gregory Taylor for pointing me to this.)

Monday, January 06, 2003


JUMPING TO CONCLUSIONS has a very good criticism of arguments against a program "that offers drug addicts $200 if they agree to get sterilized or use long-term birth control."


[W]hat legally becomes of Jewish-born Israelis who decide they want to join a different faith?

The answer, says the Association for Civil Rights in Israel, is far from clear. A human rights advocacy group, ACRI is preparing a court challenge on behalf of four Jewish-born Israelis after the Ministry of the Interior refused to to register their conversions to Islam.

ACRI says the four were told they could not convert without the approval of the Ministry of Religious Affairs, which in turn tried to put pressure on them to change their minds. All four have been told they will have to justify their decisions before a special committee that includes a psychiatrist and a social worker. . . .

At the time of writing the Ministry of the Interior had not responded to questions on the subject. A spokeswoman from the Ministry of Religious Affairs told the Herald that the committee requirement is not new and that there have been no changes to conversion procedures in recent years.

She said she did not know whether the conversion committee includes a psychiatrist, but said that in "99 per cent" of cases it decides to allow conversions to take place, issuing about 30 certificates each year. . . .

Asked on what grounds the ministry might refuse permission to change legal religious status, she said "matters of security, or something else". . . .

The president of the ecclesiastical court of the Greek Orthodox patriarchate in Jerusalem, Metropolitan Cornelius . . . said the Greek Orthodox community in Jerusalem does not receive Jewish converts because of its concern that it might run foul of laws against proselytising. . . .


RAELIAN CLONE MAY BE A HOAX, journalist Michael Guillen admits. May be a hoax? But they seemed so credible in the beginning....


SELF-SELECTED POLLS: My friend Jack Schaedel pointed me to this finding of a Pew Internet and American Life project study (which I hope was itself a well-conducted one!):
Nearly half of Republicans who went online for election news said they liked to register their opinions in online polls, compared with 28 percent of Democrats.

Web sites that operate online polls should take the results with a grain of salt, said Lee Rainie, director of the Pew Internet project.

"They very much skew toward more conservative views," Rainie said. "People who rely on Internet polls are relying on a false indicator."
Absolutely right.


TRUST BUT VERIFY: So I got back the scantrons for the multiple-choice section of my Copyright exam -- an 8-hour take-home, of which 50% was 26 multiple-choice questions -- and saw that the scores ranged from 7 to 21 out of 26. Wow, tough exam, I said to myself!

     Well, partly, but now it turns out that some student had erred in the way he entered his exam number, which made the Scantron machine treat his answer as the answer key. Six of the questions were therefore completely mis-scored. Good thing I always check before handing in the grades; now they'll just rescore this the right way, and everything will be fine. But I shudder to think of what would have happened if I hadn't checked . . . .


THE PERENNIAL RETURN OF THE ANTI-FLAGBURNING AMENDMENT: A reliable source just forwarded me a Congressional e-mail about the anti-flagburning amendment:
January 6, 2003

Support our Flag


Bill to be introduced Tuesday, January 7, 2003

Dear Colleague:

Next week, in the opening session of the 108th Congress, we will be reintroducing the bipartisan legislation proposing a constitutional amendment to protect the flag. We urge your support for this measure to prevent continued acts of desecration against our flag, and to ensure its rightful protection as a revered symbol of our nation.

Unfortunately, the Supreme Court’s 1989 ruling on Texas v. Johnson protecting flag desecration as a First Amendment right wiped out existing flag desecration laws passed by Congress and 48 states. Although Congress attempted to restore the validity of flag protection statutes by passing the Flag Protection Act of 1989, the Court ruled that law unconstitutional in 1990. It is clear that nothing short of a constitutional amendment will suffice to restore the sanctity of our most hallowed national symbol. Our measure simply states:

"The Congress shall have the power to prohibit the physical desecration of the Flag of the United States."

The House has overwhelmingly adopted this identical flag protection amendment four times, but it has fallen just short of the necessary two-thirds majority in the Senate. Since Congress last spoke on this legislation, we have seen an outpouring of support for the flag and an increased recognition of its significance to the fabric of our nation. As we recover from one of the greatest tragedies ever to face our nation and confront the possibility of war, the American people are embracing the flag as a symbol of unity. We owe it to them to ensure that the law of the land does not allow for its destruction. With your active and early support, we have perhaps the best opportunity in years to clear this measure in both bodies and to the President for signature. If you would like to join this bipartisan effort, please contact Nancy Lifset (Cunningham) at X5-5452 or Debbie Tekavec (Murtha) 5-2065 to join as an original cosponsor.


/s Randy "Duke" Cunningham /s John Murtha

Member of Congress Member of Congress
For my take on one reason why the proposed amendment would be a bad idea, see this L.A. Times op-ed.


DRUG TREATMENT: A very interesting Slate column suggests that some drug treatment programs for teenagers may do more harm than good; Mark Kleiman, who's one of the nation's top drug policy experts, echoes the sentiment.


MORE PAUL CRAIG ROBERTS: My recent brush with a Paul Craig Roberts column led me to check out his archives -- and led me to the following quite remarkable statement (emphasis added):
The post-WWII civil-rights movement, which set out to achieve the promise of equal opportunity, has instead used courts and regulatory agencies to create a regime of legal inequality in order to advance more rapidly the economic and social positions of nonwhites. Legal preferments exist for nonwhites in university admissions, employment, promotion, government contracts and discrimination lawsuits.

These unconstitutional preferments were supposed to be temporary expedients to jumpstart racial integration. However, despite a few state referendums and federal district court rulings, racial preferments have established durability for more than three decades.

The original U.S. Constitution that [legal scholar Raoul] Berger well understood is now dead. Its essential feature -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation. . . .

For American liberals, the socialist principle of equal outcomes has displaced the liberal principle of equal opportunity. Advocates of equal outcomes regard defenders of the original Constitution, such as Raoul Berger, as defenders of inequality. Berger's arguments are dismissed, along with the Founding Fathers and the Constitution itself, for defending the "immoral white male hegemonic order," a social construct designed to oppress women and blacks. . . .
Let's see if I understand it correctly: "The original U.S. Constitution" (the one written by the Founding Fathers) had as "its essential feature" "equality in law," which today "has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation." That's odd; I had thought that the original U.S. Constitution (the one written by the Founding Fathers) tolerated, and even supported, a system of pretty widely divergent group rights based on skin color -- divergent to the point that one skin color group was kept as slaves in some states, and was heavily discriminated against by the law in others. For most of American constitutional history, women had fewer rights (from lacking the right to vote to lacking the right to enter various professions and so on) than men. Differential group rights based on sexual orientation? How about this: Homosexual sex was a crime for which people could be sent to prison, and which led to a variety of other governmental discriminations. The Equal Protection Clause, which is the chief source of the modern American constitutional principle of equality in law, wasn't enacted until after the Civil War.

     Let me say it again: I oppose racial preferences. I think the original Constitution was, by the standards of its time, a great document. I think the Founding Fathers deserve great respect and honor, though not blind veneration.

     But it strikes me as deeply unsound to suggest that "differential group rights" based on race, sex, and sexual orientation are somehow the invention of modern American liberalism. They have been parts of the American legal system from the Framing onwards; they are now much less parts of that system than they were in 1791 or in 1900 (thanks in considerable measure to the efforts of modern American liberals). I think we can do better still, and I think many modern American liberals are misguided in their support of a continuing system of race and sex preferences. But the fight against such preferences is hurt, not helped, by patently incorrect assertions about how the original Constitution supported race, sex, and sexual orientation equality more than the modern Constitution (and its modern interpretation) does.


GOD AND CLONING: Susan Konig writes in The National Review Online against cloning -- and also in vitro fertilization and also, apparently, other reproductive technologies:
Unfortunately, human cloning is not the miracle answer to infertility. It is the distorted end result of a 20-year journey down the path of in vitro fertilization, frozen embryo warehousing, and surrogate motherhood.

Well-intentioned families have benefited from these methods by achieving parenthood but as the science progresses (or digresses), God is removed from the equation and mad scientists are allowed to play with the origins of life.

There is Clonaid's claim that a human skin cell plus a woman's egg plus a little electricity is all it takes to perfectly reproduce any and all human beings.

Then there is the hard fact that there are over 100,000 children in foster care in the United States alone waiting to be adopted. There are hundreds of thousands of other children worldwide who need loving homes.

While Rael was doing the Electric Slide with those voluptuous female robots aboard that flying saucer, I'll bet God was creating the future parents of an adoptive child. Maybe this week He'll show them that the reason they can't conceive a child is that their child already exists. Then He'll help them find and adopt that child, and provide that child with a home and loving parents.
I don't get it. There seem to be two arguments here: (1) Children need adopting and the loving thing to do is to adopt them. Maybe that's so, but isn't that an argument even against normal sexual reproduction? Unless one opposes birth control on religious grounds, one should just use birth control (or, better yet, sterilize oneself) and then adopt instead of reproducing. Of course, one response is that it's proper for people to prefer to have kids who are genetically related to them; perhaps even God intended this, because there seems to be a biologically embedded preference in many people for their own kin (yes, I know that many very kind people adopt and love their adopted kids as their own, and I think their actions deserve praise, but I also know that many people prefer to have biologically related children, if possible). But if that's so, then the "adopt instead" argument has little moral weight against other reproductive techniques beyond the old-fashioned one.

     Ah, but that's where argument (2) comes in: Having normal sex to reproduce isn't "play[ing] with the origins of life," but using technology to reproduce is, and is therefore "remov[ing God] from the equation." Why? Doesn't reproductive technology involve using, even within a religious perspective, our God-given intelligence? Sure, some may say that God somehow intended us to use normal sex to reproduce, and if a couple can't have normal sex, that's a sign from God that they should adopt instead. But can't one equally say that it's a sign from God that we as humans should use the brains that God gave us to in order to achieve the result (kids that are related to us) that God seems to have set up as the norm?

     What's more, we have generally and quite rightly abandoned this opposition to the unnatural when it comes to disease. Is vaccinating against smallpox wrong because it's "playing with the instruments of death," and "remov[ing God] from the equation," since presumably God influences our deaths as well as our births? Of course not, at least in the view, to my knowledge, of the overwhelming majority of Americans. What about brushing one's teeth, as opposed to letting natural tooth decay take its course? Using chemotherapy to try to save cancer patients? None of this is natural. All involves "scientists." It's all accomplished through medical procedures rather than seemingly more God-focused actions such as prayer or simply using our own natural bodies, without tools or medical science. But religious people reconcile themselves just fine to this, whether by saying that God gave us our minds for a reason, or by saying that God wouldn't want us to suffer, or, for some people, by just saying that God never forbade it and therefore we should focus on medicine and not theology.

     The column says nothing that would effectively distinguish these sorts of medical procedures from medical procedures aimed at dealing with infertility (which is a bodily condition like disease, deafness, lameness, or others). Sure, one could come up with some distinctions, and I stress again that there are decent arguments against cloning. But none of these distinctions relate to the supposed "mad[ness]" of scientists, to whether God is "remove[d] . . . from the equation," or whether people are "play[ing] with the origins of life."

     I've long argued (including on this blog) that religious people are generally entitled to try to translate their religious belief systems into law, and certainly to try to persuade others not to do certain things that violate those religious belief systems. Religious people operate based on their unproven religious axioms, secular people based on their unproven secular axioms. The question is whether the legal or moral proposals are sound, not whether they come from religious perspectives. But there are more persuasive or more sound arguments, religious or secular, and there are less persuasive and less sound ones. The argument in the National Review Online column strikes me as extremely weak, even to thoughtful religious readers who might have sympathy for a "What does God want from us?" perspective, but who should (and, I suspect, do) demand more than just assertions that the unnatural (whether cloning or in vitro fertilization or inoculation, surgery, or tooth-brushing) is somehow evil.

Sunday, January 05, 2003


BARRY CORRECTION: In reference to my earlier post on the former mayor of D.C., a reader notes that Barry's actual conviction was not for the nefarious "BSMU" crack smoking incident. Rather, it was based on another incident of cocaine possession.


EDWARDS & LEGACY PREFERENCES: North Carolina Senator John Edwards is running for president. TAP Online published this article noting that one item on Edwards' agenda is the elimination of legacy preferences in college admissions. This is a provocative, populist position to be sure. Legacy preferences are understandable insofar as they help cultivate alumni loyalty and assist with fundraising efforts, but they also strike many as unfair. To me, the potential unfairness of legacy preferences is greatest at state institutions -- which are financially supported by all state taxpayers, alumni or not. Consider also that many such institutions, including Edwards' own alma maters (North Carolina State University and the University of North Carolina at Chapel Hill), were formerly segregated. In such cases, legacy preferences institutionalize the racist legacy of Jim Crow. If Edwards is serious about this proposal, let's see him make this pitch to UNC.


WHEN DOES VIEWPOINT DIVERSITY COUNT? Viewpoint diversity is the legal and intellectual justification du jour for affirmative action in education. The University of Michigan, for example, argues that such diversity is the sort of compelling interest that can justify the consideration of race in undergraduate and law school admissions. According to UMichigan representatives, it is essential that students are exposed to a wide variety of perspectives, both in and out of class. This requires a “critical mass” of students from different groups and backgrounds which, in turn, requires the consideration of race, among other factors.

I have no quarrel with the argument that diversity of viewpoint and ideology enriches the educational experience -- indeed, I heartily endorse it (though I am not convinced it justifies the consideration of race at state institutions). Yet I cannot help but suspect that many (though by no means all) defenders of affirmative action make this argument in bad faith. When one looks at University of Michigan’s school of law, for example, one cannot help but notice the utter lack of ideological or viewpoint diversity on the faculty, let alone a “critical mass” of faculty with various ideological perspectives. To be fair, some defenders of affirmative action acknowledge this discrepancy – and the need to remedy if for the school to fulfill its avowed educational mission – but they are the exceptions that prove the rule.


THANKS ANYWAY, BUT... David Frum has a useful item in today's New York Times making clear what I suppose had become fairly obvious: the Republican party now has nothing much to do with the libertarian instincts with which it sometimes has been associated in the past. It's not particularly libertarian on economic issues and decidedly un-libertarian on social issues, "on its way to becoming a party defined by faith." I found it a depressing piece, though I gather Frum's intentions were otherwise.

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