The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Saturday, March 22, 2003


AM I A HOMOPHOBE? YOU DECIDE! The chief conspirator here has been getting some flak about some fairly angry things I posted on Internet News back in 1993. For those that are curious, let me tell you the story.

Back about ten years ago, California was considering adoption of a statute that prohibited discrimination based on sexual orientation in employment, housing, and a few other categories. Being a libertarian, I believed that what consenting adults did in private was none of my business, and I didn't care if it was sodomy or employment. I was philosophically opposed to anti-discrimination laws that controlled what private employers did--even though I generally approved of the consequences of EEO laws. When I worked as an employment agent in the late 1970s--where I first met Eugene's father--I had seen just enough discrimination, both "traditional" and abuses of affirmative action, that I was sympathetic to EEO laws, and concerned that affirmative action, at least as it was being misused, would discredit the good that EEO and proper affirmative action could do.

One of the groups with which I had always had rather strong philosophical differences, Focus on the Family, distributed a videotape that showed the San Francisco Gay Pride Parade--the footage that television stations don't show, because they would lose their license: naked men masturbating on top of floats; simulating (?) sex with other men on top of floats; whips, chains, etc. One of the most disturbing aspects to that coverage was that a group called North American Man-Boy Love Association was marching in the parade.

I was, to put it mildly, shocked. I had associated with homosexuals in political activism, at work, and in social settings. I hadn't been really close to any of them, but I hadn't held a particularly strong feeling about homosexuality--certainly, no strong negative feelings. I assumed that the weird flakiness I saw was atypical, and just a problem of a small sample size. (My wife had somewhat stronger feelings on the subject, primarily because she had been in homosexual-rich environments, in high school and while working for Ronald Reagan in the late 1970s.) I posted a question in a newsgroup associated with homosexuals, soc.motss, asking why groups like NAMBLA were allowed into the parade when homosexuals were, or should be, concerned about the stereotype of homosexuals as child molesters. I was expecting to get a bunch of responses along the lines of, "We can't lawfully exclude them." "We tried to get them to go away, but they won't." "We don't approve of them at all."

Nope. The responses I received were overwhelmingly of the form, "What's wrong with NAMBLA?" An astonishing number of homosexual activists defended NAMBLA, not just on "free speech" grounds, but on the grounds that their cause was praiseworthy. When you get email from a homosexual activist who tells you that his first sexual contact was when he was 11 years old--with an adult man who came over to the house to do repairs--and then insists that he was the aggressor, not the adult man--well, it causes more than surprise.

Even worse, as I tried to get some admission that adults pursuing children for sex was a bad thing, the reactions became more heated. I started getting threats of violence and death by email. My employer was subjected to harrassment. (I probably shouldn't have posted from work, but in those days, a lot of people still regarded the Internet as a "perq" of working in a high-tech company.) Homosexual activists started making obscene harrassing phone calls to me, my wife, and my very young children. Forged Internet News postings started to appear with my name on them. Not surprisingly, I got a little angry.

Now, things did eventually calm down. Some homosexuals did eventually post to soc.motss that sex with children was probably not a good idea. Others admitted that the homosexual community was "divided" on the issue as to whether this was a good thing or not. A few even suggested that NAMBLA shouldn't be allowed in further parades.

So, am I a homophobe? You decide. If you really find it too horrifying to see me blogging with The Volokh Conspiracy (and remember that until now I have not made an issue about homosexuality), just let Eugene know, and I'll go back to my own blog. If you think it's good to keep me here, I'm sure that letting Eugene know that would help also.

Oh yes: about Focus on the Family? As I said, at the time I had significant philosophical differences with them. Those homosexual activists who responded to my concern about NAMBLA's presence in the San Francisco Gay Pride Parade are part of why I occasionally contribute money to Focus on the Family now (even though I still have some signficant areas of disagreement). Homosexual activists persuaded me, in a way that Focus on the Family couldn't.


WAR AND ANTIWAR: An antiwar march is proceeding down the street outside my apartment right now. Lots of the protesters are holding antiwar signs from International A.N.S.W.E.R., and they are chanting "Fight the power!" and "Hey Hey, Ho Ho, Bush's War Has Got to Go!" as they walk down 16th Street towards the White House. In a strange coincidence, the protesters reached my neighborhood when I just happened to be reading news reports that Glenn Reynolds linked to over at Instapundit about how Iraqis are welcoming U.S. soldiers as liberators, and how a former human shield had left Iraq reporting that he had been "shocked . . back to reality." Hmm.


THE ENGLISH LANGUAGE can be very complicated for immigrants like me -- somehow I never learned the subtle distinction between "want" and "wish" that seems to be invoked by your learned journalist, Robert Fisk (emphasis added):
[M]any Iraqis are now asking an obvious question: how many days? Not because they want the Americans or the British in Baghdad, though they may profoundly wish it. But because they want this violence to end: which, when you think of it, is exactly why these raids took place.
Thanks to the Politburo for the pointer; judging by their name, they must be good Russians like me (I'm sure the name was Moynihansky before he changed it), and appear to be equally perplexed by your highly nuanced language.

UPDATE: OK, on reflection I wonder if I might have been a bit ungenerous to Fisk -- perhaps he was the victim of an editing or publication error, and these errors sometimes do happen. I was influenced by my judgment that Fisk's reasoning has been so foolish in the past that this increases the likelihood of the "Fisk folly" explanation as opposed to "editor error" explanation; but perhaps this was a mistake.

     Also, just to be clear: I realize that "want" and "wish" may bear subtly different meanings in some situations. I just don't think that they can reasonably do so here.


INTERVIEWING IRAQI CITIZENS IS NOT RACIAL PROFILING: Fellow lawprof Eric Muller points this out; see also the post immediately below that one, and some posts from me about this subject a few months ago, here and here. This doesn't mean the policy is necessarily sound (a difficult question that I'm not really competent to answer); and certainly the policy might be implemented in unconstitutional or unjust ways, for instance if it leads to illegal searches or arrests. But it's not the same as racial profiling or ethnic profiling.


A PEACEFUL SURRENDER?: An interesting report from
  Iraqi expatriates have been facilitating negotiations among CIA operatives, U.S. military officials and senior members of the Iraq Republican Guard inside Iraq aimed at achieving a peaceful surrender of Iraq, CNN has learned.
  The expatriates, including Kurdish leaders and former military commanders who have "active contact with the Iraqi military," have been having "face-to-face discussions with senior members of the Iraqi Republican Guard in the last 24 to 36 hours," an administration official told CNN.
  There "has been some receptivity to the idea, [but] it's not a done deal," the official said.
  "They are negotiating a countrywide pacification that allows the U.S. to enter Iraq peacefully to achieve the purpose of disarmament," the official said.
  He said the discussions were being "closely held and coordinated very closely" with CIA and U.S. military officials.


WATCHING THE SHOW: I was watching CNN last, and they did a phone interview with John Burns, an obviously British-born reporter for the New York Times, currently reporting from Baghdad. Burns has been watching, from a half a mile away, the "coalition of the willing" destroying government buildings. Burns said that not only did he feel perfectly safe, he said that many Iraqis were going outdoors to watch. He perceived it as Iraqis having great confidence both that our bombs and missles would land only on military targets, and that we would do our best to avoid hitting civilians.

Maybe Burns is wrong. Maybe, in spite of who Burns works for, he's a closet pro-American journalist. But it is somewhat gratifying to think that in spite of Iraqi media efforts to portray the U.S. as a bunch of bloodthirsty killers, there are Iraqi civilians who know better.


"PEACE" PROTESTERS & MOLOTOV COCKTAILS: From KTVU (Channel 2 in the Bay Area):
San Francisco arson investigators removed 12 Molotov-type cocktails on Friday from a backpack discovered by a groundskeeper cleaning up debris left by anti-war protesters in a downtown alley way.

The investigators carefully removed the homemade devices -- consisting of old liquor bottles filled with gasoline and having a wick -- and fingerprinted them. Police said the site where the devices were found was an area near 11th and Howard that had been traversed several times by a rather violent group demonstrators during Thursday's protests.

Police said they had obtained a security videotape showing two men throwing the backpack into bushes in the alley. They have given officers on the street photos of the two men and are hopeful they will be found in the crowds of protesters gathering on San Francisco's streets Friday night.

San Francisco police spokesman Dewayne Tully said officers had also discovered collection of rags, lighter fluid, and "other materials to make incendiary objects with" in front of the Four Seasons Hotel.

"What we suspect is that protesters were carrying these objects, knew they would be arrested at some point, and ditched them," he said.
What's also interesting is that the costs of arresting and prosecuting thousands of demonstrators is going to come home to haunt the left. Where is the money going to come from? California is already in deep trouble financially. San Francisco isn't going to be able to raise taxes. Instead, they will have to cut services. Every arrest is dozens to perhaps hundreds of dollars that will come out of social service programs over the next year or two.

A peaceful, lawful protest shouldn't take any money out of social service programs. Getting yourself arrested is a theft from hungry children, homeless people, and mental illness treatment. If conservatives cut these budgets, there would be rage and screaming about it. But when leftists, without any debate or discussion, force these sort of budget cuts, where's the rage?

UPDATE: Great minds think alike. Rob Morse, a San Francisco Chronicle columnist, has the cost of dealing with the unpeaceful demonstrators.

Friday, March 21, 2003


GOOD ADVICE FOR CRIMINAL DEFENDANTS: Don't moon the judge. Thanks to Eric Muller for the link.


A BRITISH LIEUTENANT COLONEL'S SPEECH: Reader Robert Fairbarn pointed me to this Times (London) article, which quotes a speech attributed to "Lieutenant-Colonel Tim Collins, the 42-year-old commander of The Royal Irish battle group." I'm not sure I'd fully endorse the article's extraordinary praise for the speech, but it seems to me that parts are indeed very good, so I thought I'd pass it along:
The enemy should be in no doubt that we are his Nemesis and that we are bringing about his rightful destruction. There are many regional commanders who have stains on their souls and they are stoking the fires of Hell for Saddam. As they die they will know their deeds have brought them to this place. Show them no pity. But those who do not wish to go on that journey, we will not send. As for the others, I expect you to rock their world.

We go to liberate, not to conquer. We will not fly our flags in their country. We are entering Iraq to free a people, and the only flag that will be flown in that ancient land is their own. Don’t treat them as refugees, for they are in their own country.

I know men who have taken life needlessly in other conflicts. They live with the mark of Cain upon them. If someone surrenders to you, then remember they have that right in international law, and ensure that one day they go home to their family. The ones who wish to fight, well, we aim to please. If there are casualties of war, then remember, when they woke up and got dressed in the morning they did not plan to die this day. Allow them dignity in death. Bury them properly, and mark their graves.

You will be shunned unless your conduct is of the highest, for your deeds will follow you down history. Iraq is steeped in history. It is the site of the Garden of Eden, of the Great Flood, and the birth of Abraham. Tread lightly there. You will have to go a long way to find a more decent, generous and upright people than the Iraqis. You will be embarrassed by their hospitality, even though they have nothing . . . .

There may be people among us who will not see the end of this campaign. We will put them in their sleeping bags and send them back. There will be no time for sorrow. Let’s leave Iraq a better place for us having been there. Our business now, is north.


"THE COMMAND POST": A very good war news blog. Yeah, I'm sure you're laughing at me, saying "He thinks this is news? I found it minutes ago." But just in case you aren't, check it out.


A PICTURE IS WORTH 1000 WORDS: But which thousand? Kos implicitly suggests one set; Tacitus urges another. Tacitus has by far the better of the argument, I think. (Thanks to InstaPundit for the pointer.)


ELEANOR CLIFT ON BUSH: Eleanor Clift's column -- which is apparently also in Newsweek -- is just awful. I'm supposed to be proofreading my book proofs, so I can't give it the time that it deserves, but the ratio of personal attacks to evidence is just remarkable. What's striking is how perfectly normal behavior, behavior that politicians routinely engage in (and probably should engage in), is portrayed as something pathological. Just a few examples:
  1. From the second paragraph:
    Bush has personalized this war to such an extreme that even if American forces take over all of Iraq and find weapons of mass destruction, the war will not be judged a success unless Saddam is captured or his body is found. It’s a Bush family trait to turn everything into a grudge match.
    First, the claim in the first sentence, even taking account of the hyperbole, is nonsense. The attacks on Hussein weren't of the "Hussein must die" variety; they were "we've got to kick him out." If Saddam somehow vanishes, a few people will be upset -- but I have no reason to think that Bush would be, or that much of the public would be. Second, to the extent that people will be upset, that has little to do with Bush's "personaliz[ation]"; people are naturally upset when a bad guy seems to have evaded justice. Would people have been happy if, for instance, Mussolini hadn't been caught? Sure, and not because it was somehow a Roosevelt trait to turn everything into a grudge match -- it's a human family trait to want to see evil people punished.

  2. Immediately following:
    Anybody who crosses Bush gets the treatment. During last fall’s congressional races, Republican operatives likened Democratic leader Tom Daschle to Saddam Hussein because he stood in the way of passing Bush’s legislation. Daschle is again in the crossfire for criticizing Bush’s failure to resolve the impasse over Iraq with diplomacy.
    Uh, harshly criticizing political adversaries who try to obstruct your policies (and who, like Daschle, are relatively pugnacious about it) isn't a Bush family trait, either -- it, too, is a pretty normal trait among many humans.

  3. Bush miscalculated when he assumed other nations would fall into line, but that’s another family trait: it’s called “to the manor born,” or “to the presidency born,” meaning that a family of Bush’s social status that has spawned two presidents assumes if they think it’s right, it’s right. A streak of religiosity further strengthens Bush’s belief in the rightness of his cause, which he initially called a crusade.
    Oh, yes, most prominent politicians (except that pathological Bush family) are just constantly overflowing with self-doubt. Good heavens, if Reagan thought it was right, did he then agonize? What about Clinton? Were they from families of high social status? Given that they weren't, might attributing Bush's confidence to his "family trait[s]," his "social status," or for that matter his "religiosity" (not a prominent trait in Reagan's or Clinton's personality) be just a bit questionable?
Oh, there's more, there's more, but as they say in the math books, responding to the rest is an exercise left to the reader -- I've got work to do. But this piece was just so awful that I couldn't resist.


If you're an anti-war protester or politician, this theory of warfare [where the American military is trying to win by getting Iraqi soldiers to surrender, with minimum loss of Iraqi life] should change the way you think and act. Your efforts to generate resistance to the war before there is any evidence of killing, much less atrocities, contribute to the political strength of the enemy regime. You encourage uncertainty about the war's outcome, increasing the likelihood that the regime's soldiers will fight and die. You make it more difficult to separate the regime from its people. You frustrate the tipping [i.e., tipping the enemy forces from enmity to surrender] and bring on the crushing.

If you want to minimize the killing, stop resisting the war. Instead, do what you can to make the war transparent and to hold your government accountable for unnecessary deaths. Help the media and human rights organizations monitor the battlefield. Help them get reports and pictures to the people of your country and the world. Build an incentive system that will strengthen your government's will to spare lives. Its ability will do the rest.


REPEAT AFTER ME: "I will not believe scientifically invalid polls." "I will not believe scientifically invalid polls." "I will not believe scientifically invalid polls, even if I like their results."

     Look, I'd like to think that most MTV viewers support the war; in fact, they might well support the war. But unless I misunderstand the way the poll described here (see also the InstaPundit link) was conducted, that poll doesn't tell us that. It doesn't tell us much of anything, because it counts only those people who choose to vote in it (key phrase: "Among people voting in's polls . . .," and see also this sample of an poll), and we have no reason to believe that they're a representative sample of MTV viewers, or of any other group.

UPDATE: Drat, The Corner falls for this, too.


PLACES THAT HAVE NEVER BEEN RULED BY A EUROPEAN NATION: So here's the question for the weekend -- which inhabited countries (or parts of countries) in the world have never been ruled by a European nation? If you know the answers, please e-mail me at volokh at; if you believe your claim would be controversial, please check it first, and, if possible, e-mail me a URL supporting your assertion. There aren't a lot, but there are, I think, at least half a dozen or so.

     The answer will be posted early next week; I probably won't get a chance to respond individually to each response, but I will give credit to those who get pretty much the whole list. If you submit a response and then need to amend it, please resubmit your entire amended response, so I don't have to manually combine your messages. Please do not query what the definition of "ruled" is; yes, I know there's ambiguity there, but I'm not inclined to take the time needed to resolve it . . . .


DEMOCRAT DEATH WISH? I thought it was remarkably poor timing for Senator Daschle to be criticizing Bush at the start of the war--but what are we to make of this request from the DNC to its activists to rally behind Daschle?
The Democratic National Committee is asking party members to defend Senate Minority Leader Tom Daschle's criticism of the way President Bush has handled the Iraq crisis even as U.S.-led forces invade the country.

In the hours before and after the president's order Wednesday night to begin the war to topple Saddam Hussein's regime, the DNC sent e-mails to its grass-roots activists that said "Democratic leaders are standing up to Bush; Make sure you stand up for them!"

"Republicans will stop at nothing to gain a political advantage from this military conflict," said an e-mail yesterday.
It would appear that Democrats will stop at nothing to try to gain a political advantage from it, also. But here's the difference: the carping should start if things go badly. When they are going well--far better than I expected--it makes Daschle and the Democrats look out of touch with reality.


WHOOPS: It turns out I inadvertently marked a bunch of my blog posts today as drafts, and then was scratching my head, wondering why they hadn't come up . . . . Darn; well, now I've taken care of that, and they're posted below (marked with the original times that I composed them).


THERE ARE NO LAZY READERS -- ONLY BUSY READERS: I'm just working on a short part of the Writing section in my forthcoming Academic Legal Writing book -- it should be an obvious point, but unfortunately I've found that not all law students fully grasp it:
There Are No Lazy Readers -- Only Busy Readers

Many writing tips stress simplicity, clarity, and brevity. Avoid unneces-sary long words and complex sentences. Get to the point quickly. Keep paragraphs short. Make things easier for your readers, and keep them from losing interest.

Some writers think this advice assumes that readers are lazy or stupid; those writers feel they’re being told to “dumb down” their prose for dumb readers. After all, smart, industrious readers wouldn’t mind long paragraphs filled with long sentences and long words -- they would focus on the sub-stance, not the form.

No. Your industrious and smart readers are busy people, precisely be-cause they are so industrious and smart. They can spend only limited time and effort reading your article -- not because they’re lazy or dumb, but be-cause they have other things to do.

They can parse complex words and sentences; but this parsing takes more work than reading simpler, clearer prose. Why waste my time wading through this murk, they’ll ask themselves, when I could be working on some-thing else? You can keep their precious attention only by making things as easy for them as possible.


GMOS ARE GOOD FOR YOU: Opponents of genetically modified organisms (GMOs) typically invoke the precautionary principle. This is the idea, common in environmental circles, that the absence of evidence of harm does not justify the failure to adopt safeguards. In the case of GMOs, the principle is often invoked to justify increased regulations on the introduction and sale of GMOs, such as crops that have increased nutritional content or that produce their own natural pesticides (e.g. Bt).

The problem is that GMO critics neglect to consider the positive health and environmental benefits that can result from their use. Sometimes these benefits are obvious, as when rice is engineered to increase per-acre productivity or enhance vitamin content. In other cases, the benefits are not so obvious. A good example of the latter is the potential for GM salmon to reduce the risk of heart disease. Yes, you read that correctly. According to a new study by Randall Lutter and Katherine Tucker, the use of genetically modified salmon has the potential to reduce heart disease fatalities in the United States by several hundred per year.

Salmon is an important source of omega three fatty acids. The consumption of omega three fatty acids has been linked to a significantly reduced risk of coronary heart disease. Scientists have figured out how to engineer salmon so as to increase their growth rate so that salmon bred in “fish farms” will grow more rapidly, reducing the cost of raising salmon in captivity. Assuming the reduced “farming” costs translate into lower salmon prices in the supermarket, salmon consumption should increase – as will consumption of omega three fatty acids. The end result, according to Lutter and Tucker, could be an annual reduction of 600-2,600 coronary heart disease fatalities.

The point is not that all GMOs will be beneficial, or even that genetically engineering farm-raised salmon is a good idea. Rather, it is that imposing restrictions on GMOs (or any other technology) in the name of “safety” does not always make us safer. Indeed, the “precautionary principle” can actually make us less safe. In this case, it might mean an additional 600-2,600 fatalities that are otherwise preventable.


IRAQI CASUALTIES: From today's Wall Street Journal editorial:
The great paradox of the escalating Iraq War is that the attacking allies want fewer Iraqi casualties than does Saddam Hussein. We can't recall another war where this was true, but the insight is crucial to understanding how this struggle is likely to unfold, and how the Iraqi dictator hopes to survive. . . .
Well put.


DITTO ON CNN'S FASCINATION WITH THE TECHNOLOGY: I noticed the same self-congratulatory, "Wow! Isn't this neat!" tone from CNN's evening anchor. Yeah, it is neat, but the discussion of it was rather like getting excited about your competence in dealing with earthquake victims, while paying little attention to the victims themselves. Even as a confessed computer geek, I was impressed how far the technology has come in ten years, but I recognize that what's being covered is vastly more important than the method of getting the images to us.


A member of Ohio's 5694th National Guard Unit in Mansfield legally changed his name to a Transformers toy.

Optimus Prime is heading out to the Middle East with his guard unit on Wednesday to provide fire protection for airfields under combat. . . .

Prime took his name from the leader of the Autobots Transformers, which were popular toys and a children's cartoon in the 1980s.

He legally changed his name on his 30th birthday and now it's on everything from his driver's licence, to his military ID, to his uniform.

"They razzed me for three months to no end," said Prime. "They really dug into me about it."

"I got a letter from a general at the Pentagon when the name change went through and he says it was great to have the employ of the commander of the Autobots in the National Guard."

Prime says the toy actually filled a void in his life when it came out.

"My dad passed away the year before and I didn't have anybody really around, so I really latched onto him when I was a kid," he said.
Well, I can't say that it's my cup of tea, and I'm not sure, for instance, that I'd want to hire someone who changed his name this way -- not the most sensible judgment, I think. But, hey, he's serving our country, and that entitles him to a good deal of slack in my book. (Thanks to Faisal Jawdat for the pointer.)


CNN ON CNN: I watched about seven or eight hours of CNN yesterday, and I couldn't help but notice how the CNN anchors were as interested in their grand achievement of bringing real-time video coverage of war to the masses as they were the actual invasion. It seemed a bit weird to me. Here we are, with the U.S. invading a country the size of California, and the CNN anchors keep saying what a momentous event it is-- not that the U.S. is invading, but that for the first time ever in the history of war journalism, they are covering the event live! It was fascinating, I admit; live reports from the battlefield with sound and (grainy) video are remarkable. But surely the CNN anchors could recognize that something even more important than CNN was going on, like, say, the war.


A BIT MORE ON THE LANGUAGE POLICE: Clayton is suggesting "If this was happening . . ." to refer to something that clearly isn't happening is wrong, and that "If this were . . ." is the only proper usage. But it seems to me that even a prescriptivist should have a hard time making this claim. Prescriptivists, as I understand it, suggest that what's right and wrong in language should be decided by the authorities, and not by usage; I don't quite agree with that, but I think that even on the prescriptivists' own terms, using "If this was happening . . ." -- using the indicative instead of the subjunctive -- is proper. I cited two authorities (a usage dictionary and a grammar book) for my claim that both "If this was . . ." and "If this were . . ." are correct; I've seen no authorities that support the assertion that "If this was . . ." is incorrect.

     Now some prescriptivists might object to this analysis, because most linguistic authorities today are themselves descriptivist. But if that's the objection, then what's left of the prescriptivist argument? If prescriptivists say that right and wrong in language is determined by authority, not usage, but then reject the authorities, then what do they appeal to, other than their own preferences?

     Of course, if the claim is simply one of preference (for instance, that "If this were happening . . ." is more elegant), then I wouldn't object; I might even agree. If the claim is of functionality -- that communication would be clearer if people consistently used "if this were" when they were referring to something they know isn't so, but "if it was" when they were referring to something that might or might not be so -- then I would object less; I'm not sure that this claim is correct, but it's at least plausible. But I understood Clayton's objection to be that "If this was happening . . ." is just wrong, under the rules of the language as set forth by the linguistic authorities. And the authorities that I've consulted do not bear this out.

     I bring this up, of course, because I think this issue is emblematic of a broader point: In lots of these cases -- where the matter is the subjunctive, split infinitives, prepositions at the ends of sentences, and so on -- the prescriptivist argument isn't even tenable on its own terms. The authorities are, I think, on my side on many questions (even though I'm sometimes willing to go even against them), not on the side of the Language Police.


CONSERVATIVE SPEAKER GIVES SPEECH IN WHICH HE CALLS HILLARY CLINTON A "WHORE": Well, that actually didn't happen, and if it did everyone would be all over the jerk, quite correctly. But New Jersey Poet Laureate Amiri Baraka -- remember him? -- said pretty much this about Condoleezza Rice (using the term "skeeza"), and few people seemed to say much about it. I did a quick LEXIS search for "baraka and condoleezza" and found all of 20 references, though the poem (the same one that caused the outcry against Baraka's anti-Semitism) is now a year and a half old.

     A column by Gregory Kane, a black Baltimore Sun columnist, published the day before yesterday puts this well:
In front of an overwhelmingly black audience of about 100 at Coppin State College, Amiri Baraka, New Jersey's Lunatic Laureate, called national security adviser Condoleezza Rice a "skeeza."

For those of you not in the know, a "skeeza" is a derogatory street term used in reference to a woman and as offensive as calling her a prostitute. It's a noxious, bilious, disgustingly sexist term and one of the worst things you could call a woman.

It is something Rice certainly is not. Baraka knows she's not. Those blacks who laughed, giggled, tittered and applauded when Baraka said it know she's not. But what was the reaction of these black folks when Baraka finished his invective masquerading as poetry that he called "Somebody Blew Up America"?

They gave him thunderous applause and a standing ovation. At no time was there the indignation that was present when O'Malley said much less about Jessamy. I guess Baraka can get away with it because he hates all the right people. . . .

When he called Rice a "skeeza," liberal black leaders who couldn't wait to get their faces in front of a camera after the Trent Lott gaffe knew Baraka was lying. We haven't heard word one from these leaders regarding Baraka and Rice . . . .

It would be nice if one of those black state legislators who voted to fund the money that was paid to Baraka would say so.
(I of course think that all New Jersey legislators, black and white, should speak up about this.)

UPDATE: InstaPundit blogs about this, and stresses that Baraka's most recent speech was at a university; this, he says, is "Academia's Trent Lott Moment." An interesting point.


CONFEDERATE FLAGS IN HIGH SCHOOLS: The U.S. Court of Appeals for the 11th Circuit has upheld a school's power to restrict confederate flags. Other courts have done the same in the past, if there was fairly concrete evidence that the flags were likely to cause disruption in the school; the Supreme Court's Tinker v. Des Moines Independent Community School District (1969) decision allows that. But the 11th Circuit seems to be going further in its rationale, endorsing the lower court opinion which says:
Second [independently of the Tinker rationale], even if disruption is not immediately likely, school officials are charged with the duty to "inculcate the habits and manners of civility as values conducive both to happiness and to the practice of self-government." To
do so, they must have the flexibility to control the tenor and contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption.
The lower court opinion cites Bethel School Dist. No. 403 v. Fraser (1986) for this proposition, and concludes that
Part of a public school's essential mission must be to teach students of differing races, creeds and colors to engage each other in civil terms rather than in "terms of debate highly offensive or highly threatening to others." . . . There is no evidence that the school district has attempted to suppress civil debate on racial matters, but the district had concluded that the display of certain symbols that have become associated with racial prejudice are so likely to provoke feelings of hatred and ill will in others that they are inappropriate in the school context.
     Now it's not easy to disentangle the "disruption" justification (which rests on Tinker) from the "civility" justification (which rests on Fraser), in part because uncivil speech often causes disruption. But there is a difference, especially since Tinker requires some plausible evidence of likely disruption, and not just sheer speculation.

     And I think the court's "civility" rationale overreads Fraser. Fraser upheld a school's punishment of a student for giving a speech laced with sexual innuendo; the decision specifically stressed that "[u]nlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint." But to the extent that the Confederate flag is offensive, that's so precisely because of its viewpoint.

     Now I think there are plausible arguments for the school district's restriction, and even for far broader restrictions on speech in government-run schools, including restrictions that suppress particular political messages. Justice Black, for instance -- generally a free speech maximalist -- dissented in Tinker, and his dissent makes a powerful case. But I don't think the Eleventh Circuit decision is consistent with the existing rules that Tinker and Fraser set forth; and at least it's worth noting that it considerably broadens high school administrators' latitude to suppress their students' political speech.


PROTECTING KURDISTAN: I am thrilled to see that the U.S. is putting Kurdish sovereignty--a moral and long-term benefit policy--above the immediate needs of combat. Turkey is refusing air space because we aren't giving them the greenlight to occupy Iraqi Kurdistan. In the short run, it puts the U.S. at a disadvantage in the war against Iraq. In the long run, letting Turkey occupy northern Iraq would be one more expedient action that would turn natural allies into enemies.


OBEDIENCE TO THE STATE: Jacob Levy's coverage of the antiwar protest in Chicago includes a curious aside concerning a Christian radio station promoting obedience to law, etc.
I landed on a Christian station that was instructing listeners about the divinely-ordained status of governments (which appeared to apply to the American but not the Iraqi governments), the need not to take passages from the Gosepls out of context as condemning war since after all God Himself ordered a bunch of wars in the Old Testament, and the Christian obligation to never disobey a state or to fail to pray for one's leaders. Creeeeeepy. It might well be that, on the best interpretation of Christian just war doctrine, this is a just war. It may well be that, Christianity is best intepreted as opposing pacifism and anarchism. I don't have a view on the correct interpretation of Christianity within a certain range. But unconditional obedience to and support for one's leaders, whoever they are and whatever the character of the state and whatever the content of the positive law-- these are loathsome moral doctrines, and I am willing to say that they are not true to Christian natural law or just war doctrine.
Very true, and I would have thought that the very conservative form of Christianity that has historically taken this view would be a bit less enthusiastic about it post-Roe v. Wade. (Of course, many liberals are horrified by some of the Christian resistance to governmental authority that has come out of that.)

The 19th and 20th centuries were awash in examples of Christians who recognized that obedience to the state can be contrary to the laws of God. Some useful works: Nien Cheng's Life and Death in Shanghai, the autobiography of a Christian in Red China during the Cultural Revolution; Nat Brandt's The Town That Started the Civil War, about the Oberlin Rescue of a runaway slave; and Conscience in Revolt: Sixty-Four Stories of Resistance in Germany, 1933-45 (A review of that last book is here.) Of course, there is also Corrie ten Boom's The Hiding Place, where this exact question arose. Corrie and her sister are remembered today, and celebrated by Christians everywhere. And what of her pastor, who reluctantly told her to obey the laws? Who remembers him today?


IN DEFENSE OF THE SUBJUNCTIVE: Eugene is arguing that the use of "was" instead of "were" is common in spoken English. So are various colorful expletives, but it doesn't say much for a speaker's command of the language when I hear a certain Anglo-Saxon verb denoting copulation used in verb, noun, gerund, and adjective forms, all in one sentence!

We can understand that the student quoted meant the subjunctive "were" not the past tense "was" because "there would either be" is future tense. But just because we can decode his meaning in spite of his mixing of tenses (past tense and future brutally slammed together), doesn't make it a good practice.

Then again, my wife has an MA in English, and she daily despairs at language crimes much more serious than this!


PROTESTS: Chicago is still buzzing about the fact that the antiwar protest last night sprawled far beyond Federal Plaza and ultimately deliberately blocked traffic on Lake Shore Drive. Network programming last night kept getting interrupted by local news reports on the state of the traffic jam-- there seemed to be more of these interruptions than there were interruptions with actual war news. Local radio this morning was filled with outraged "What if an ambulance had to get through! What about the obstruction of the rights of commuters!" talk.

I find protests (on any side of any issue) largely uninteresting. But this, surely, ranks as among the least interesting things to say about any protest. I've sat in hours of traffic on LSD (yes, that's really the acronym) or on the Dan Ryan many times since moving to Chicago. Every #@!@$ing Bears game or huge convention in the Mistake By The Lake McCormick Convention Center blocks LSD interminably. The protesters committed low-level civil disobedience, and were properly arrested. They didn't (as far as I've heard) riot, break windows, attack cops, sabotage military equipment, or do any of the really nasty stuff that some protesters sometimes do. They blocked traffic. Not good, but not a war crime, either. If a nonviolent-though-civilly-disobedient protest is worth talking about at all, then it ought to be because of the content of what was said at it.

In an effort to find something else on the radio, I landed on a Christian station that was instructing listeners about the divinely-ordained status of governments (which appeared to apply to the American but not the Iraqi governments), the need not to take passages from the Gosepls out of context as condemning war since after all God Himself ordered a bunch of wars in the Old Testament, and the Christian obligation to never disobey a state or to fail to pray for one's leaders. Creeeeeepy. It might well be that, on the best interpretation of Christian just war doctrine, this is a just war. It may well be that, Christianity is best intepreted as opposing pacifism and anarchism. I don't have a view on the correct interpretation of Christianity within a certain range. But unconditional obedience to and support for one's leaders, whoever they are and whatever the character of the state and whatever the content of the positive law-- these are loathsome moral doctrines, and I am willing to say that they are not true to Christian natural law or just war doctrine.


HE WASN'T IN A SUBJUNCTIVE MOOD: As the resident public defender for Language Court cases, I thought I'd come to the defense of people who say "If this was happening in every city . . ." instead of "If this were . . . ." (I defend them only against the were/was accusation -- on the merits, my coblogger's criticism was entirely apt.)

     As William & Mary Morris's Harper Dictionary of Contemporary Usage says (quoting Porter Perrin), "the subjunctive is a trait of style rather than of grammar and is used by writers chiefly to set their language a little apart from everyday usage." Likewise, the Oxford English Grammar says that "The past indicative was is more usual than subjunctive were in contexts that are not formal." Thus, today, both the subjunctive ("If this were" used to refer to things that are known not to be so) and the indicative ("If this was") are grammatically correct, at least in spoken usage. One may prefer one to the other on esthetic or functional grounds, but neither is wrong.


NONCOMMERCIAL CHILD PORNOGRAPHY AND THE COMMERCE CLAUSE: Reading U.S. v. McCoy reminds me that at least one past case, U.S. v. Corp, from the Sixth Circuit, reached a rather similar result. I say "similiar" because Corp can be read not as holding the statute unconstitutional as applied to particular cases, but rather as holding that the Constitution required the statute to be interpreted narrowly, and the defendant wasn't covered by the narrow interpretation. Nonetheless, this case is quite close to Judge Reinhardt's opinion in McCoy -- and, for whatever it's worth, the panel there consisted of three Reagan appointees.


IRAQI-AMERICAN SUPPORT FOR THE WAR: Instapundit asks why media coverage of Iraqi-American support for this war was so scarce a month or two ago? Good question. My wife works with an Iraqi in a country club restaurant. A month ago, when nearly all of her co-workers were saying, "No blood for oil," this Iraqi said nothing. Now that the war has started, he is afraid for his family still back in Iraq, but supports the U.S. liberation. I wonder if a lot of people were afraid of reprisals against extended family for taking a public position in support of the war?


THE THREAT TO CIVIL LIBERTIES: From a Washington Post story about the demonstrations in San Francisco:
Police arrested more than 1,000 people in San Francisco on Thursday -- the most demonstrators taken into custody on a single day in the city in 22 years -- as tens of thousands protested across America against the U.S. war in Iraq.

"If this was happening in every city, there would either be martial law or an end to war," said one Berkeley student who chained himself to 16 others on a major San Francisco street.
Finally! An honest statement about the goals of the "peace" protestors: they want martial law (because there's no way that the U.S. is going to end the war right now). (The quoted protester is a college student; I guess that I shouldn't expect him to understand the difference between subjunctive and past tense: "were," not "was.") There is nothing surprising about this. Terrorists seek overreaction by the government. If the government responds to provocation by overreacting, it creates sympathy with the terrorist cause.

In the past, the government has overreacted--as some of the abuses of the 1960s and early 1970s demonstrate. To the credit of the American people and government, 09/11 did not provoke the sort of overreaction that the terrorists wanted. We did not lock up every Muslim or Arab-American. (We did lock up a small number of people who had overstayed their visas, were here illegally, or for whom there was reason to suspect terrorist associations.)

We did not scrap the Bill of Rights--though I understand why some people responded to Total Information Awareness with alarm. We had the good fortune to see both traditional left-wing civil libertarians and far-right friends of the Constitution, such as Rep. Bob Barr (R-GA), raise their voices in opposition to some of the more questionable proposals.

The efforts of totalitarian apologists are annoying, but they can be dealt with through the ordinary legal processes for violation of our laws. There is no need for more extraordinary measures or laws. The Republic and our Constitution are surviving difficult times. What seems not to be surviving is the rationality of the traditional left in America. I received a detailed piece of nonsense comparing Hitler to Bush, the Reichstag fire to 09/11, and German Jews ("members of a Middle Eastern tribe") to Arab-Americans. According to this essay, Bush has taken control of all the media in the U.S.!

Thursday, March 20, 2003


20% SURRENDER: Let's hope this is accurate:
British military sources told Fox News that 20 percent of Saddam Hussein's elite Republican Guard had surrendered or were in the process of surrendering.


THE U.N.: From, Slate's William Saletan:
"The Security Council has not failed," [German Foreign Minister Joschka] Fischer told fellow council members . . . "The negotiations on the Iraq crisis . . . have shown how relevant and how indispensable the peacemaking role of the Security Council is. There is no alternative to this."

Let's see. The Security Council negotiation process failed to give pro-war nations the legitimacy they sought. It failed to give anti-war nations an effective veto. It failed to keep the peace. A massive American-led assault on Iraq is underway -- I'd call that an alternative -- and nobody's paying attention to Fischer's urgently relevant remarks. I've underestimated the German sense of humor.

[French Foreign Minister Dominique] De Villepin followed Fischer's speech with an equally indispensable lecture on the wisdom of France. The U.N. weapons inspections, he explained, had merely been "interrupted" and would soon resume. To those who think this war will eradicate terrorism, de Villepin warned, "we say they run the risk of failing in their objectives."

Fair enough. So here are our options: the risk of failure or the certainty of it. Gentlemen, gentlemen. Your words are as compelling as your deeds.


COLORADO'S NEW CONCEALED WEAPON PERMIT LAW: One reader isn't happy with the new law. He claims that the old law allowed any sheriff in the state to issue; this one requires you to get a permit from your own sheriff. My understanding is that many sheriffs, if they issued at all, only issued to residents of their county, anyway--and of course, many did not, or issued with such difficulty that it was impossible.

He claims that the restrictions on carrying on school grounds are unreasonable, because the old law didn't restrict carrying there. I agree--Idaho's law was similar--but it has since been amended to be a little less onerous. (If you leave your gun in the car, and you were there to pick up or drop off your kids, not a problem.) This can be fixed in the future.

He complains about the fees being too high. Yeah, I can agree. I would prefer that this be no charge, but governments spend some time processing this; I don't think it's unreasonable to have the fees at least cover those charges.

He complains, "I don't like CCW laws, even shall issue because it reinforces the idea that the state has authority to regulate a Right." There may be a day when some states go to a Vermont-style law, but I don't expect any to go from a restricted issuance to Vermont-style concealed carry in one step. It is going to take some years for states to get enough confidence in their citizens to make such a leap--and if they never get around to it, it's not a disaster.

The big win of the new Colorado law is that the law-abiding adult can now get a carry permit--and for those of us who don't live in Colorado, here's the good news:
Reciprocity. Recognizes as valid in this state a permit issued to a person at least 21 years of age by another state that recognizes the validity of Colorado permits.
Idaho recognizes permits issued by all other states. This means that my Idaho permit will be good in Colorado. That means that I now have concealed carry permits good in 25 states!


INTERNATIONAL COOPERATION: I just received a note from one of my peace activist sisters asking a number of people to sign a petition in favor of international cooperation. My response:
> Dear friend,
> I'm writing to ask you to join me in signing a Citizens' Declaration
> reaffirming our commitment to international cooperation.The outbreak of war
> is not the end of the fight for peace -- only the beginning.

International cooperation--with Saudi Arabia, that doesn't allow women to drive cars. With Libya, that amputates hands for theft, and recently paid compensation for its part for intentionally bombing an airliner. With Iraq, that gouges out the eyes of children in front of their parents to get them to confess, and employs rapists and tongue cutters for political dissent. With Syria, that a few years back, killed an entire town of 25,000 people for political dissent. With Israel--for callous disregard for human rights (at least, if you are a leftist you would argue this, and I might slightly agree). With North Korea--who have starved to death two million people over the last few years. With Iran--who recently stoned a woman to death for adultery. With Nigeria--which may do so shortly.

Why am I finding the notion of international cooperation less than appealing?


"FIRST CASUALTIES: 16 DEAD IN U.S. CHOPPER CRASH". 12 Britons and 4 Americans. The helicopter crashed within Kuwait; it may well have been an accident, rather than hostile fire, but the exact circumstances are apparently unknown.


ANOTHER ARGUMENT ABOUT WAR AND PRECEDENT, from Andrew Coyne in the National Post. (Thanks to Sean Engemoen for the pointer.)


BREAKING NEWS: If you're really desperate for breaking news, this site will generate it for you. (Thanks to Chris Lansdown for the pointer.)


THE MOMENT OF LIBERATION: Charles Freund, at Reason's Hit & Run, passes along the following:
New York Times reporter John Burns, interviewed from Baghdad Wednesday night, was asked by Gwen Ifill of PBS' NewsHour to describe "the mood tonight on the streets of Baghdad." Here's what Burns said:
Well, you would imagine there is a great deal of apprehension ... [but] I think America should know that there is also a good deal of anticipation. Iraqis have suffered beyond I think the common understanding in the United States from the repression of the past 30 years here. And many, many Iraqis are telling us now -- not always in the whispers that we only heard in the past, but now in quite candid conversations -- that they are waiting for America to come and bring them liberty.

IFILL: They are actually anticipating ... eagerly anticipating war?

BURNS: It's very hard, though, for anybody to understand this. It can only be understood in terms of the depth of repression here, and it has to be said that this is not universal, of course. Having traveled throughout Baghdad in the last few hours, I can tell that you there are occasions when people are angry ... There are, of course, people who, because they are loyalists of the regime or out of fear or out of suspicion of America's motives, don't want this war at all....

All I can tell you is that ... the most extraordinary experience of the last few days has been a sudden breaking of the ice here with people in every corner of life coming forward to tell us that they understand what America is about in this. They are very, very fearful, of course ... and they are very concerned about the ... American military governance that they will come under afterwards.

But ... there is absolutely no doubt, no doubt that there are many, many Iraqis who see what is about to happen here as the moment of liberation.


NICE TO SEE TURKEY'S CONCERN: Yes, that's sarcasm. The Turkish Parliament approved use of their air space for coalition forces, but also:
The Parliament today also authorised the Government to send an unspecified number of Turkish troops into northern Iraq, a Kurdish-held enclave beyond Baghdad’s control which Ankara fears could try to claim independence from Iraq.

Ankara fears such a prospect could rekindle separatist violence among its own Kurdish population in South East Turkey. It also wants to stop refugees and Turkish Kurdish rebels based in northern Iraq from crossing into its territory.
The Kurds will be understandably upset, and well they should be. Turkey is not going to win any awards for its treatment of its own Kurdish population (though, admittedly, Kurdish terrorist groups make it easy for Turkey to rationalize pretty rough measures). I can understand why Turkey wouldn't want an independent Kurdistan on their border, from which it is at least plausible Kurdish guerilla or terrorist forces might make incursions into Turkey.

At the same time, Turkey would be well advised to think about the consequences of occupying Iraqi Kurdistan--perhaps increasing the willingness of Iraqi Kurds to pursue full independence from Iraq--with an eye on their brethren next door. If Turkey doesn't want an independent Kurdistan, it should not give the Kurds any additional reasons to think of that as a necessity. If Turkey tries to annex Iraqi Kurdistan, it will only increase the number of upset guerillas or terrorists within its own borders. This would be really stupid.


SADDAM'S BUNKER LOCATED, by a Volokh Conspiracy reader, as a matter of fact. Gerard Van der Leun writes:
It's obvious, isn't it. I mean, if you were Saddam where would you put the your bunker?

You'd put it deep beneath the building in which all the Western Reporters and their satellite up-links were sequestered.

Wouldn't you?

. . .

I'd like to be on record as the first person outside of Delta Force to have figured this out.
You heard it here first.


JUDGE REINHARDT'S DECISION: The decision United States v. McCoy looks correct to me. As he points out, there is nothing precluding state laws against child pornography from applying in this case. The argument that the film moved in interstate commerce, and therefore the use of that film within one state gives federal jurisdiction over a crime involving it, reminds me of an argument that I saw advanced some years ago for why the federal government had authority to ban handguns, even those made in one state and never sold outside of it: the metal or the ore from which it was smelted must have crossed state lines.

Reinhardt has properly distinguished this case from the Wickard decision (which I abhor) because there's no connection to interstate commerce. Wickard was a silly stretch, claiming that the farmer growing his own grain reduced demand, thus affecting interstate commerce. There's at least an argument that all of the farmers growing their own grain combined had reduced aggregate demand for grain moving in interstate commerce. This is arguably a legitimate concern of the government--to keep demand for grain up, so as to reduce economic hardships on farmers.

The only way to apply that argument to this child pornography case would be to argue that "home production" of such materials reduces demand from commercial producers. Reinhardt rejects the claim that it has any effect on commercial demand. He may well be right, but even if he accepted that claim, these are not parallel positions, but opposing ones. Unlike grain, it is clearly in the public interest to reduce demand for commercial child pornography. The Wickard argument just doesn't work here--quite the opposite.

I'm sure that there are lots of people who will be very upset about this decision. One set will be upset because it opens an potential door for child pornographers to challenge the federal law. In practice, all this means is that the federal government will have to demonstrate some intent to sell the product across state lines, or to have acquired it across state lines. My impression is that except for California (which is probably a major producer and consumer of this depravity), this won't normally be a big problem. As much as it would be nice to have a big hammer that you can use to deal with a really evil bunch (child pornographers), it's not clear that the exception that Reinhardt has carved in this law is going to do that much damage--and state laws should be more than sufficient to deal with a case like this one.

Another set that should be upset are the "Big Government is our friend" crowd. But since there is sizeable overlap with those who argue for what I consider an absurdly broad understanding of freedom of the press, there may regard this as a good end by a bad means.

Unless there's something missing here, the description of the events sound more like the sort of stupid, intoxicated behavior that I learned to expect living in California, not the sort of child-injurious conduct at which this statute was aimed.

UPDATE: One of Eugene's readers points out that the same argument could be applied to drugs made entirely within one state. I disagree. It would not be at all difficult to establish a plausible connection between intoxication (alcohol or illegal drugs) and DUI, murder, rape, child molestation, industrial accidents, and a host of problems that much more directly affect the overall economy. Indeed, you can make a stronger case for the impact of alcohol and other intoxicants on interstate commerce than the supposed reduction in grain demand that the Wickard decision used as an excuse.


AN UNFORTUNATE DISCOVERY ABOUT TECHNOLOGY AND SPEED: No matter how fast my Internet connection is, no matter how many war news sites I visit, and no matter how often I reload them, I cannot get news updates any faster than they are written, or than the news happens. Drat! And here I thought technology would make our lives better.


RSS OF CNN: David Janes has put together two RSS news feeds of CNN coverage -- if you use RSS, this could be a great feature for you.


I'm not sure what the correct result is, although as you say, the Ninth Circuit's result is certainly plausible. Moreover, the real stakes here go far beyond child pornography laws. If Congress can't prohibit the intrastate possession of child pornography intended "for personal use," how can it prohibit the intrastate possession of narcotics intended for personal use? Read the analysis in the McCoy case with the word "narcotics" substituted for "child pornography," and you get a sense of its potential implications.


RICIN IN A PARIS RAILWAY STATION Perhaps it did France less good than it thought to take Saddam Hussein's side at the UN:
The French Interior Ministry said on Thursday that traces of the deadly toxin ricin have been found in the Gare de Lyon railway station in Paris.

A spokesman told Reuters that two small flasks containing traces of the poison were discovered in a left luggage depot at the mainline railway station which serves the south of France.
UPDATE: Instapundit sent me to this interesting site about the Iraqi/al-Qaeda ricin connection.


CAPITOL BUILDING OPEN FOR BUSINESS: I just returned from the U.S. Capitol Building, where I participated in a panel discussion hosted by the Congressional Internet Caucus Advisory Committee on pattern analysis technologies such as Total Information Awareness. (You can read about the panel here, and a webcast will eventually be made available from that link as well). There was fairly heavy security at the Capitol, but otherwise things were pretty normal. It was a good panel, too: diverse voices on very controversial topics, and yet we all had a pretty similar take. I've found that that happens fairly often, come to think of it. The press often portrays privacy and security issues as zero-sum games between two opposed sides. If you pick up the newspaper and read an article about TIA or CAPPS II, the article will usually present one person as the "security" person, and another as the "privacy" person. The story will report a clash between the two sides. But put people in a room and have them discuss their views, and you often find a surprising range of consensus, and that the differences are on quite minor points.


REMARKABLE FEDERALISM DECISION: Just saw Orin's post below, and I'm printing out the case to read this afternoon. It may well be the correct result, both under the Court's caselaw and under a proper reading of the Constitution, which was indeed intended to considerably limit Congressional power to regulate intrastate possession. But whether or not it's correct, I predict that the Supreme Court will agree to hear the case, unless the Ninth Circuit reverses it en banc. Maybe the Justices might even affirm this; but when a court holds a federal statute unconstitutional (even in part), the Court is quite likely to consider the matter.


JUDGE STEPHEN REINHARDT, FRIEND OF FEDERALISM?: Strange but true, at least today. Don't miss Judge Reinhardt's opinion in United States v. McCoy, which holds that the federal criminal law prohibiting the possession of child pornograpy is unconstitutional as applied to a noncommercial image of child pornography not created for distribution. Judge Reinhardt reasoned that the law as applied exceeded Congress's power to regulate interstate commerce in light of Lopez and Morrison. Thanks to How Appealing for the link.

     UPDATE: Plainsman has an interesting take on the case over at Sub Judice.


A REPORT FROM THE SCALIA SPEECH: Reader Bruce Batista writes:
I attended the Scalia speech yesterday to the Cleveland City Club. Although there did not appear to be any TV cameras, there were plenty of TV reporters present -- not to mention at least 2 video cameras close to the dais along with about 6 still photographers. Your point about not wanting to be taken out of context is very cogent. As you know, Scalia has a reputation for an acid wit -- which was on vivid display yesterday. The topic for his speech was "Constitutional Interpretation." It was basically an exposition on his originalist approach to interpretation and denigration of the concept of the "living Constitution." There were probably at least 20 comments that he made which -- if shown solely by themselves, out of context -- would surely end up on somebodies "Parade of Horribles" highlight reel about conservative or Republican judicial appointments. While the numerous comments chastising conservatives would be ignored. For example, he was quick to condemn conservatives for using the "living constitution" argument to support bans on flag burning. He said, "A pox on both their houses."

As an aside, ff anyone is going to condemn Scalia for restricting "free" speech, they should also condemn the City Club -- after all, attending Scalia's speech wasn't free. Our firm paid $2500 for a table of 10 at the luncheon. And you couldn't get in without a ticket.

There really is no such thing as a free lunch.


MESSAGES THAT START BY INSULTING THE RECIPIENT: A flurry of such messages -- generally responding to my attacking-Iraq-as-precedent piece in Slate -- led me to put my standard response to such messages on a Web page, so that I can simply link to it rather than retyping the whole thing.

Wednesday, March 19, 2003


COLORADO ADOPTS SHALL ISSUE CONCEALED WEAPON PERMIT LAW: Colorado Governor Bill Owens signed both SB 24 (a statewide non-discretionary concealed weapon permit law) and SB 25 (state pre-emption of local gun regulations) measures. SB 24 is probably the most immediately valuable to the people of Colorado, bringing it into conformity with nearly all other Western states.

SB 25 scraps Denver's assault weapon ban, and most importantly, strikes down local city bans on open carry. This should be a non-issue, since the Colorado courts in City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, 745 (1972), struck down a ban on open carry with language that implied open carry was constitutionally protected:
Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense. Several of these activities are constitutionally protected. Colo. Const. art. II [s] 13. Depending upon the circumstances, all of these activities and others may be entirely free of any criminal culpability yet the ordinance in question effectively includes them within its prohibitions and is therefore invalid.
Unfortunately, little details like the state constitution don't much get in the way of Colorado local governments and judges.


GUN SAFETY: Don't much like the picture at the top of this article. Always keep your finger off the trigger until you're ready to shoot. I mean, didn't Pulp Fiction teach us anything?

UPDATE: Matt Rustler agrees, and cites the basic weapons safety rules (crediting the Marines, who ought to know).

FURTHER UPDATE: Chris Lansdown has some notes, with an exchange he had with me about this.


OVERWHELMING: The front page of the New York Times Web site currently contains the following blurb:
War Is Imminent
America's rationale for using force exposed an overwhelming opposition to war.
Hmm, I don't think we've really been overwhelmed here.


SELF-CRITICISM: Jonah Goldberg on libertarians and criticism:
But I have to say I think it is galling that Reason and to a certain extent the Cato Institute have taken little to no effort to police their own -- allegedly independent and consistent -- political movements. Never mind the Libertarian Party which is little more than a Star Trek convention without the laughs. Look instead to the Von Mises worshipping Rockwellians who claim to speak for libertarians everywhere. It seems elemental to me that if you want to have your movement taken seriously, you must first argue and debate with those who claim to speak for you. National Review has long recognized its obligations in this regard, tackling head-on fellow conservatives who would have conservatism stand for something it should not. In the past William F. Buckley made painful choices in his efforts to police the conservative movement for bad ideas he did not want to be associated with. Meanwhile, libertarians internalize an ideological imperative against "judging others" to the point they tolerate libertarian "spokesmen" who sully their ideas and their "movement." ...these bastions of libertarian authority are quick to denounce and criticize liberals and conservatives but too often seem to have an 11th Commandment -- assuming for the moment they subscribe to Commandments 1 thru 10 -- which says "thou shalt not criticize any other libertarian." I think that's not only irresponsible, it undermines the oft cited libertaran assertion that they are an independent and intellectually consistent political movement....I sincerely doubt that Mises would consider Lincoln an American Hitler and there's no reason why I should lump him in with the defenders of Jim Crow over at Lew Rockwell's shop. But -- again -- why it should fall to me, one of the only conservatives eager to pick fights with Libertarians, to save Mise from the Rockwellians is a bit of a mystery. I will defend Edmund Burke to my last breath. I will even, as I have, do my darndest to claim Hayek as a conservative. But Mises is a libertarian and the libertarians should keep his good name intact themselves.
(Quotations from several closely related posts; scroll up and down.)

Well, the Rockwellers and Justin Raimondos of the world certainly don't observe this 11th Commandment; attacks on Virginia Postrel, Brink Lindsey, Tom Palmer, David Boaz (heck, just about the whole Cato staff) and other alleged apostates galore are constant, vitriolic, ad hominem, and vicious. It often seems that such attacks are the bulk of the activity at lewrockwell and antiwar and similar places. Jonah's urging that mainstream libertarians devote time and energy to attacking back and to "polic[ing] their own." One does see some of this-- in Liberty magazine (the journal of libertarian mutual criticism!); in this post of Eugene's on Paul Craig Roberts (and this one, too); in Virginia Postrel on the Rockwellers; in just about everything Brink Lindsey writes on his blog. But if Reason devoted its pages to monthly responses to the Confederatism and anti-Israeli rantings of the paleolibertarians then... well, then it would be of no more interest to the general reader than Liberty is. (Don't get me wrong; I enjoy Liberty on the odd occasion when I see an issue. But of general interest it ain't, usually.) NR's special issue on Pat Buchanan a decade ago was of some considerable general interest; after all, Buchanan was then mortally wounding the re-election campaign of an incumbent president and had been (and would become again) an extremely prominent public commentator and propagandist of anti-Semitic canards. But that was a special case. Until the new David Frum piece came out, NR has publicly ignored the Sam Francises of the world more than it has talked about them.

As far as "policing" goes: there hasn't been any one libertarian organization that has the semi-authoritative position that National Review had for a couple of generations of conservatism-- or that, say, the Leonard Peikoff group has among orthodox Objectivists. All one can ask for is criticism, because no one could credibly claim the authority to read someone else out of the category "libertarian." I think it's telling that it's the Rockwellers who devote so much of their energy to trying to do this. The folks at Cato largely think that there are more interesting things to talk about; and I think they're right. I'm not sure what Jonah means by Cato et. al. 'tolerating' the Rockwellers et. al. The former largely ignore the latter. They have no authority to "read them out" of anything in particular, but they don't encourage them, either. What, precisely, would the desired form of 'non-toleration' look like, besides non-association?

Finally, as I said in an earlier reply to a similar argument Jonah made a couple of months ago: "NR's policing of its boundaries sometimes leaves something to be desired. John Derbyshire, anyone?"


RED, WHITE, AND BLUE: So why are these colors so common in flags? Chile, Cuba, the Czech Republic, the Dominican Republic, France, Laos, Nepal, the Netherlands, North Korea, and more -- all red, white, and blue. Russia is, too, but the blue is lighter.

     I know other colors are quite popular, too; flags of Muslim countries, for instance, generally have some green, but there's a reason for that. What's the reason for the red, white, and blue? If you know the answer, as opposed to just loosely speculating about one, please e-mail me at volokh at

UPDATE: Virginia Postrel writes:
I'm pretty sure these colors are common on flags because prior to the invention of synthetic dyes they were among the easier colors to produce and, hence, became widely used for symbolic purposes.


MAUREEN DOWD: Yes, I know I'm risking a patent infringement lawsuit from Josh Chafetz, dean of Dowd-fisking, but I couldn't resist commenting on Maureen Dowd's latest:
The Perpendicular Pronoun

Sometimes I feel as if I've spent half my adult life covering a President Bush as he squares off against Saddam Hussein, an evil dictator who invades his neighbors and gasses his own people.

But while on the surface this seems like Groundhog War, the father-and-son duels in the sun with Saddam are breathtakingly different. The philosophical gulf between 41's gulf war and 43's gulf war is profound and cataclysmic -- it has sent the whole world into a frenzy -- yet it can be summed up in a single pronoun.

"The big I," as Bush senior calls it.

The first President Bush was often teased about his loopy syntax. But it was a way of speaking that signified the modesty and self-effacement his mother had insisted upon. He was so afraid to sound arrogant if he used the first person singular that he often just dropped the subject of a sentence and went straight to the verb.

"Mother always lectured us -- in a kinder, gentler way -- against using the big I," Poppy Bush said. He is so shy of "I" that he has never written a personal memoir.

Even though he came to politics with a sparse résumé, compared with his dad's stuffed one, the cocky W. was always more comfortable with the first person perpendicular. . . .

During his war overture on Monday night, W. was not afraid of the first-person spotlight: "This danger will be removed. . . . That duty falls to me as commander in chief by the oath I have sworn, by the oath I will keep."

The whole approach of the father, who had once served as U.S. ambassador to the U.N. and loved nothing more than to drag world leaders out on his cigarette boat and give them mal de mer, was a clubby "we." He and his secretary of state, James Baker, had a coalition of 90 countries for Desert Storm, and they constantly schmoozed world leaders and trying to maintain international order.

The hawks of Bush II are not afraid of disorder in the pursuit of American dominance. They have no interest in any coalition -- except their own. They see the international "we" as an impediment to joy -- and to destiny. The Bush doctrine is animated by "the big I." That self-regarding doctrine, concocted by Bill Kristol, Paul Wolfowitz and Richard Perle back when W. was still merely a presidential gleam in Karl Rove's eye, preaches preventive pre-emptive preternatural pre-eminence. . . .
Three thoughts:
  1. Is it at all noteworthy that in a piece condemning the Presidential "I" -- an "I" that isn't actually much on display in her quotes from Bush (only two references) -- two of the first six words (decontracting the contraction) are the journalist's own "I"? I'm usually reluctant to psychoanalyze people, but might there a bit of subconscious projection here?

  2. Beyond this, Dowd is using the wrong pronoun. The standard condemnation of people who use "I" too much is that they're too egocentric or immodest. But Dowd is faulting Bush not for being too Bush-focused, but too America-focused. America, though, is a "we," not an "I." One can claim that Bush is not concerned enough about building alliances, but that's a charge that he's using too small a "we" ("we Americans," or even "we hawks," rather than "we members of the international community"). Calling him "I"-focused is a different charge entirely -- a more serious charge, and one that to my knowledge is actually quite unfounded.

  3. Finally, a small tangent -- consider this paragraph:
    The Wall Street Journal reported on Monday that even though Mr. Cheney receded into the background for months, he was choreographing events like Pluto, lord of the underground. In his undisclosed locations, he had dinner parties with anti-Saddam intellectuals and reached out to Iraqi dissidents and plotted the war with his old pal Rummy, letting Colin Powell vainly spend his prestige at the mealy-mouthed U.N.
    Seems to me that if you want to analogize someone to the lord of the underworld -- a not very flattering analogy -- you should at least get the analogy right. It's been a while since I read my mythology, but I don't think that Pluto was known for choreographing events; other than the little misunderstanding with Persephone (or Proserpine, if you prefer), he was mostly happy to stay home and wait for people to come to him. At the very least he was no more interventionist or manipulative than most of the other gods. Petty, yes, I know, but there is a point here: It's a bad sign when an author is so eager to smear someone that she's willing to throw in unfavorable analogies that don't even work as literary figures.


WHOOPS: balockquote>A man spent hours chained to the wrong building Tuesday in an ill-planned effort to protest war with Iraq, police said.
Jody Mason padlocked himself to an entrance of the Washington State Grange building at 924 Capitol Way S., thinking it was a sub-office of the U.S. Department of Energy.

Grange employees found him about 11:45 a.m. Tuesday and asked what he was doing. . . .

Police officers used heavy-duty bolt cutters to free Mason.

"He asked for help because he didn't have the key," Olympia police Cmdr. Steve Nelson said. . . .
Remember, "this is your brain on drugs." Thanks to Jonah Goldberg in The Corner for the pointer.


IS SOMEONE KEEPING A WAR PREDICTIONS LIST? The Skeptical Inquirer used to have great fun printing "psychic" predictions for the coming year--a year later. Should someone being making a list of the predictions about this war, just so that we can remind them of their abilities a year hence? Ralph Nader, on the effects of the war:
Nader, in town to speak at the University of South Carolina, said Bush had overstated the possibility of domestic terrorist attacks after Sept. 11, 2001. Nader said convictions of suspected terrorists have been scarce since the attacks on the World Trade Center and the Pentagon.

But Nader said Bush will inflame parts of the Middle East against America by making war with Iraq. Many people in the Islamic world will see nightly television reports that document U.S. aggression, he said. The president's actions will destabilize the Middle East and help recruit people to the al Qaeda terrorist organization, Nader said, noting that numerous former American military experts have similar concerns.

He said there now is no link between al Qaeda and Saddam Hussein, nor is there an imminent threat by Iraq to the United States.

People in the Middle East are "going to see hundreds of thousands of refugees, they're going to see civilians and children being killed, they're going to see all kinds of ethnic slaughter in terms of factions taking it out on one another, which they'll blame the United States invasion for," Nader told reporters. "It doesn't take a leap of logic .‘.‘. to conclude that this is going to increase the risk of terrorism to our country.

"President Bush, by invading Iraq unilaterally, is endangering our country."
And from another person confident that this is going to be a disaster, Rep. Pete Stark (D-CA):
In one of the most brutal critiques of the administration's policy toward Iraq by a member of Congress, East Bay Rep. Pete Stark said President Bush would be responsible for "an act of terror" by launching a massive bombing campaign to oust Iraqi leader Saddam Hussein.

"I think unleashing 3,000 smart bombs against the city of Baghdad in the first several days of the war . . . to me, if those were unleashed against the San Francisco Bay Area, I would call that an act of extreme terrorism," said Stark, a Democrat from Fremont.
Stark, a peace activist in the 1960s and a 30-year veteran in Congress, is known for his sharp and sometimes careless tongue. He told the Oakland Tribune Monday that if the president initiates the war, "it's blood on Bush's hands."

His latest criticism is based on published reports that U.S. forces plan to fire as many as 3,000 laser- and satellite-guided missiles on Iraq in the first days of a military campaign.

"You can't send in 3,000 bombs without some of them going awry, in spite of the military's claims about accuracy," Stark said in an interview Tuesday with The Chronicle. "If they get two-thirds accuracy that means that 1,000 bombs will explode (off target) inside a city of 6 million people. To me, that's a terrorist act."


USPS v. CIA: I used to have a friend who worked for IRS. He kept his IRS ID card right next to his driver's license, so whenever a cop was going to give him a ticket, he would see the IRS ID. He never made any threats, or drew any attention to the IRS ID--but he tells me that it was astonishing how seldom he received a ticket.

The IRS has a fearsome reputation--but nothing like the CIA. (I watched The Bourne Identity Monday night--if only they were this effective in real life!) And the Post Office is hassling the CIA? Gutsy!


UPDATES: Still fooling with my new hard drive.

In the meantime, I realized that I'd never gotten around to pointing out the updates to my blogroll, the only bit of my individual blog that I'm still updating. The addition of greatest interest to Volokh readers that isn't already in the VC blogroll is undoubtedly Lawrence Solum's legal theory blog. The additions of least interest to VC readers may be in the new section on "comics blogs," prompted by my noticing blogs from some of the people I used to see when I used to hang out on the rec.arts.comics hierarchy on Usenet.

UPDATE TO THE UPDATES: Eugene here, trespassing on Jacob's post -- it was my mistake not to have added Lawrence Solum's blog to the blogroll; I just corrected the mistake on reading Jacob's post.


USPS VS. CIA: From the Washington Post:
[We reported yesterday that] the Central Intelligence Agency has been stuffing unstamped postcards into residential mailboxes in the neighborhoods surrounding the agency's Langley headquarters.

CIA spokesman Bill Harlow sounded a tad grumpy when we told him that dozens of alert readers had pointed out that the CIA's mail drop was a violation of federal law. "I'll look into it and get back to you -- after the war," Harlow told us. When we persisted, he groused: "No, no, no, no. I've got all kinds of important issues to deal with -- al Qaeda and Iraq. We'll get to the postal regulations when we can."

But the Postal Service viewed the matter with a teensy bit more urgency. It turns out that the CIA is in breach of United States Code, Title 18, Section 1725: "Whoever knowingly and willfully deposits any mailable matter . . . on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service . . . shall for each such offense be fined under this title."

Postal Service spokesman Gerry McKiernan told us that yesterday "our inspection service got in touch with the CIA and advised them that we would hate for their certainly well-intentioned lapse to happen again. We don't think they did this 'knowingly and willfully.' But if it happens again, then it will be 'knowing and willful.'"


THE BENEFITS OF PSYCHOLOGICAL WARFARE: Fewer bodies to bury. This report from the Times of London indicates that mass desertions are already taking place in the Iraqi Army, with many units hoping for an impressive attack by our side so that they will have good excuse to give up. This is good all the way around, if it actually plays out tomorrow as it is playing out today:

1. Fewer "coalition of the willing" soldiers die.

2. Fewer Iraqi soldiers die. (Remember: most of them don't want to be there, and there are probably few that have any loyalty to the Butcher of Bagdad.)

3. The "millions will die" crowd looks really stupid.

4. Bush looks like a genius.

Thanks to Instapundit for the pointer.




A STRIKING VISUAL, from the New York Times Web site front page today -- "Britain's Royal Irish Rangers moving toward Iraq in the Kuwaiti desert today" (photo credit AP). Powerful and evocative on many levels.


Benefits of Diversity in Our Military? That's not a tongue-in-cheek title. I'm serious. From an AP news story about US troops positioning themselves for combat:
One company commander led his troops in a Seminole war dance, and told the men to remove the American flags that fluttered from the tops of the tanks because "we will be entering Iraq as an army of liberation, not domination."
The Seminoles, of course, managed to resist domination by the U.S. government for a very long time, and were really refugees from other tribes, who forged a new identity at a safe distance from their enemies--much like America's people from many lands.


HEY, I CAN READ GERMAN! Or at least I can read the headline of this otherwise foreign-language piece. Thanks to InstaPundit for the pointer.

UPDATE: They changed the headline (which read "You Can't Fuck With America," in quotes -- thanks to reader Jon Ravin for the precise text) after this was posted. Drat!


BOOK PROOFS FOR ACADEMIC LEGAL WRITING HAVE ARRIVED: Sounds like I'll get this thing published yet, and more or less in time (i.e., before the end of the semester). But first, one more proofreading pass . . . .


SOLDIERS FACING DEATH: What must it be like to be a soldier on the eve of battle, knowing that tomorrow may be the day you die? I've read a bit on the subject, but I never had any idea of what they must be confronting, and I thought it was presumptuous to think that I could know. Until I went under the knife for surgery last year.

Before you start to laugh--or insult me as an "armchair warrior": consider that when you go under general anesthetic, your chances of dying as a result of anesthesia are something under one in 10,000. Considering the number of American servicemen deployed in Gulf War I, and the number who actually died, this isn't really such a dramatically different level of risk--within one or two orders of magnitude. My surgery wasn't strictly necessary, but it was to correct recurring sinus infections and snoring. I had some apprehensions the night before, and some concerns as they prepped me, and started to put me out. But I was prepared to take the small risk of death for the benefits that came from it.

This isn't to denigrate the sacrifice that our servicemen--and those of Britain, Australia, and the Czech Republic--are undertaking in the next day or two--but to remind us that the average soldier's risk of death is not so very different from the average elective surgical patient's risk. We respect those soldiers not just because they are putting themselves in harm's way, but because they are doing it for the good of us all, and not just for their own personal benefit.


In the mainly Shia Muslim south, Kuwaiti border guards are having to turn Iraqi soldiers back -- telling them that they must wait until an attack begins before they can surrender.
As I mentioned before when such a story was reported,
The story is reported as somewhat amusing, and I suppose it is (assuming that it's accurate) -- but what do you think happened to the soldiers when they returned to Iraq? Even in a civilized army, this sort of behavior is likely punishable; in the Iraqi army, I suspect that the punish is quite severe, and possibly fatal. Is it really the case that "[t]here was nothing [the British] could do other than send [the Iraqis] back"? Perhaps there's some rule here that does command this, but couldn't they have just treated them as defectors, and turned them over to Kuwaiti authorities?

After all, that would be . . . fewer Iraqis who could kill or wound some allied troops when the war starts; it would be . . . fewer Iraqis who might be killed by allied troops when the war starts; and it would be . . . fewer Iraqis who might be killed by Saddam before the war starts. True, it's possible that they might have actually been saboteurs or infiltrators, but I presume that they could have been disarmed, and locked up by the Kuwaitis in some safe but not terribly expensive surroundings -- surely both the allies and the Kuwaitis have some plans for dealing with prisoners of war when some are indeed taken. Wouldn't letting them stay in Kuwaiti custody be a win-win scenario (at least for everyone but Saddam)?
Now maybe this doesn't much matter when the war seems likely to start in a matter of hours, or a day or two at most -- but still, a lot of returned would-be defectors could still be killed in those hours, or could end up being killed in the first hours of the attack. Is there something I'm missing here, some compelling reason why these premature surrenders couldn't be accepted? After all, some surrenders seemingly are being accepted -- or is it just a matter of subtle differences in timing? --
Fifteen Iraqi soldiers have crossed the border into Kuwait and surrendered to US troops, a US officer said.

The 15 were handed over to Kuwaiti police after laying down their arms and giving up, said Captain Darrin Theriault, headquarters company commander of the First Brigade of the US Army's Third Infantry Division.

The surrenders came amid the 48-hour ultimatum given by President George W. Bush to Iraqi leader Saddam Hussein to leave his country or face a massive attack. . . .
UPDATE: Matt Rustler has more thoughts on this.


PROOF THAT THE FBI CARES ABOUT THE BILL OF RIGHTS: Check out this report about an FBI undercover sting that recovered an original copy of the Bill of Rights, lost since the Civil War.


"JUSTICE BANS BROADCAST MEDIA FROM SPEECH": I've seen several e-mails about this story:
Supreme Court Justice Antonin Scalia has banned broadcast media from an appearance Wednesday where he will receive an award for supporting free speech.

The ban on broadcast media, “begs disbelief and seems to be in conflict with the award itself,” C-SPAN vice president and executive producer Terry Murphy wrote in a letter last week to the [Cleveland] City Club. “How free is speech if there are limits to its distribution?”

The City Club, which regularly hosts appearances by public figures, is presenting Scalia with its Citadel of Free Speech Award.

It usually tapes speakers for later broadcast on public television station WVIZ. But Scalia insisted on banning television and radio coverage as a condition of his appearance.

“I might wish it were otherwise, but that was one of the criteria that he had for acceptance,” said James Foster, the club’s executive director.

The City Club selected Scalia for its free speech award because he has “consistently, across the board, had opinions or led the charge in support of free speech,” Foster said.

Cameras and recording devices are banned from the Supreme Court chamber, and Scalia prefers not to have camera coverage in other settings, said Kathleen Arberg, spokeswoman for the court. . . .
     Of course, there's no claim of actual legal violation here: The City Club is a private entity, and Justice Scalia is entitled to ask them, as a condition of his appearance, not to allow the event to be taped or broadcast. The claim, rather, is that this demand is somehow improper or unfair on Scalia's part, especially given that the lecture is about free speech.

     Because we're talking about subjective judgments of propriety, rather than about somewhat more clearly delineated rules of law, people will naturally differ about this. But it seems to me that Scalia's request, and the Club's acceding to the request, are quite proper. Speakers are entitled to ask that their speech not be taped, especially when they have reason to think that tiny excerpts will be replayed, perhaps out of context, on the evening news. That's traditionally been seen as each person's prerogative -- the media is generally free to broadcast that which it has in its possession (though subject to copyright law and some other restraints), but that doesn't mean that all of us should maximally accommodate the media by allowing them to tape us on private property.

     Nor is there anything different about speeches in honor of free speech. Scalia, after all, gets this award for helping protect speakers from governmental punishment (though it turns out that, while his views on free speech are quite defensible, they are somewhat less speech-protective than those of most currently sitting Justices). He has never claimed to be a force for maximum media coverage of speeches on private property, or maximum dissemination of speakers' positions. It's perfectly consistent for him to say "I believe in the rights of the media to speak free of government punishment, but I don't believe that speakers have an obligation to make their speeches available for the media to tape."

     But even if Scalia acted quite properly, might the City Club -- which prides itself on being "the oldest continuous free speech forum in the country, renowned for its tradition of debate and discussion" -- be faulted for agreeing to his request, rather than just saying "No, if you don't want to be broadcast, don't come here"? My tentative sense is that they shouldn't be so faulted. They had a choice: Have Justice Scalia come out and speak to their members, and have the event be covered by the print media, or not have him come out to speak at all. Either way, the broadcast media wouldn't have gotten to broadcast the Scalia speech; but at least the choice that the City Club made allowed some listeners to hear it. That seems like a reasonable decision, though the opposite decision would have been reasonable, too.

     More broadly, I think this is a reminder that not all restrictions on speech -- or on information gathering, which is the precise question at stake here -- violate free speech rules or free speech principles. Saying that one will only speak (again, on private property) if the speech isn't rebroadcast is quite consistent with those rules and principles.

UPDATE: Someone pointed out one other item: Speakers often give more or less the same speech in many different places; they may be reluctant to let their speech be broadcast because then it makes it less novel for future audiences. Now this may be less of an issue if the broadcast is just on a local public television station, but it may still be something of an issue (for instance, if Scalia comes back in a year or two to give a talk at a Cleveland law school), and it may also help explain why some speakers get used to asking that the speech not be broadcast.


A BRIEF EXCHANGE ON PRECEDENT: Paul Robinson, a professor at University of Hull in England -- and a friend of Iain Murray's -- passed along the following:
Actually the problem about precedent isn't quite what your friend
thinks it is.

I used to think, for instance, that what was wrong with NATO's Kosovo war was that it created a dangerous precedent which others could follow. Now I realise that I was wrong, and in that sense agree with your friend. But what I missed then, and he misses too, is that it did and does create a dangerous precedent -- FOR US!

Having got away with this sort of thing once -- in Kosovo -- we are now doing it again, and if we get away with it cheaply this time, we will be tempted to do it yet again. Kosovo is already being cited time after time by the government and its supporters as providing
justification for this war. This war will then be used as justification for the next one we want to do.

So, there is the real problem -- We are creating dangerous precedents for ourselves.
I responded:
Interesting argument, but I'm pretty skeptical -- are we really doing what we're doing in Iraq because of Kosovo? If we didn't go into Kosovo, would we now be saying "No, let's not go into Iraq" (or would we even be substantially more likely to say it)? Conversely, if we thought that going into Iraq wasn't in our national interest, would we now be saying "But we went into Kosovo, so we ought to go into Iraq, too, to be consistent"?

I don't think so, which is why I think talk of "precedent" is out of place here. Claiming that we should avoid A because we're afraid that doing A will "set a precedent" for B is claiming that doing A will materially increase the chance of B over what it would have been had A not been done. (That is in fact what happens in legal precedent, to which I take it the "precedent" claims here are drawing an analogy.) That's true in some situations, but not, I think, here. Our doing A (participating in the Kosovo campaign) did not materially increase the chances of our attacking Iraq; our deciding to attack Iraq will not materially increase the chances of our attacking another country.

The one caveat to that is that our attacking Iraq may give us extra information -- whether information we uncover in the Iraqi files, or, more likely, information about how effective these sorts of wars are -- that will affect our judgment about future wars. But that's a plus, not a minus, because it allows our future decisions about whether to go to war to be based on somewhat more knowledge.
Prof. Robinson further responded:
In reply, I would say that I really do think that attacking Kosovo made the Iraq war more likely. I think that it gave Blair in particular a taste for this sort of thing. It made him think that force was a suitable way of dealing with tricky problems, and that if you stuck to your guns and ploughed on, you would end up as a hero.
It also made him and others think that they could ignore the prohibition on waging aggressive war and ignore the UN Security
Council. The fact that he and his followers keep citing Kosovo as a precedent suggests to me that it did play some role in their thinking.
I think my response was still correct -- and to the extent that there was an effect, it was the one identified in the last paragraph as being a good effect -- but I thought I'd pass along the whole exchange to our readers so you can decide for yourselves what to make of it.


Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate

March 18, 2003

Dear Mr. Speaker: (Dear Mr. President:)

Consistent with section 3(b) of the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243), and based on information available to me, including that in the enclosed document, I determine that:

(1) reliance by the United States on further diplomatic and other peaceful means alone will neither (A) adequately protect the national security of the United States against the continuing threat posed by Iraq nor (B) likely lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.


This is of course the determination that is required by the Congressional resolution in order for the President to use force (setting aside the question whether this requirement is legally binding):
In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that--

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.
Thanks to InstaPundit for the pointer.


BLUFFING: It would be really nice, as David Post suggests, if Hussein decided to "fold," and go into a comfortable exile in Libya or Saudi Arabia. But that would assume that Hussein's primary concern is his own safety and that of the Iraqi people. I don't think so. This Washington Post article about his childhood makes it easy to feel sorry for him. It also makes me think that a Hitler-style Goetterdaemmerung ending is vastly more likely.

Albert Speer's Inside the Third Reich describes how Hitler, in his last days, decided that because the German people had failed him, they did not deserve to survive. Hence, his orders (fortunately, not always carried out), to destroy German industrial capacity and infrastructure. Hussein grew up in a house where Hitler was highly regarded; we should not be surprised if he decides to go out in a similar blaze of infamy.

UPDATE: I see that John Keegan, prominent military historian and author of The Face of Battle, thinks that Hussein will not go into exile, and seems to think that he may end his life like Hitler.


BLUFFING In all of the debate about Iraq, one thing has struck me: that so many people are very quick to condemn Bush for attacking Iraq before the attack has actually occurred. We are, it seems, about to go to war, and maybe this thought becomes completely moot in a day or so. Nonetheless ... There are certainly reasonable grounds to believe that an attack would be a bad thing. But making credible preparations for an attack -- which is, as of the moment I write this, all that the U.S. has done -- strikes me as harder to criticize. I take it that virtually everyone agrees that (a) Saddam Hussein is a terrible menace and (b) the world would be better off without him; he may never voluntarily relinquish power. But it does not strike me as unreasonable to think that he might look at out at the forces massed against him and realize he has 2 options -- certain death, or life in Libya surrounded by money, family, and even -- who knows? -- the possibility that he can return triumphant, Napolean-like, to Baghdad, in a while.

     If this were to happen, of course, the Bush policy will suddenly look awfully smart to a lot of people to whom it looks awfully stupid today. It would be hard to argue, if it played out that way, that it would be anything other than an enormous, Nobel-prizeworthy achievement. And it's hard to argue against the notion that if you want it to happen that way, your threat to attack has to be a credible one.

     It may not happen that way, of course -- indeed, it is very likely that it will not happen that way. But unless you think (as you might, I suppose) that it cannot happen that way, it seems to put critics of the policy in a peculiar posture: the knowledge that their own criticism might have to turn to praise, depending entirely on the decisions of an acknowledged madman.


LIBERTY: There's no news hook for this -- I'm not trying to comment on any current events -- but Bill Bennett's recent column reminded me of this excerpt from a Lincoln speech (his Address at a Sanitary Fair, Baltimore, Apr. 18, 1864), so I thought I'd post it. I've always found this quite a thoughtprovoking piece, and a useful reminder that "liberty" in the abstract is not self-defining; most rhetoric that simply refers to "liberty" -- whether in the context of slavery, where Lincoln said this, abortion rights, national sovereignty, and so on -- rests on assertion about the proper definition of people's or institutions' rights, and it's that definition that should often be at the heart of the debate.
The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name -- liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names -- liberty and tyranny.

The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. . . .
Always worth keeping this in mind, when the debate starts being about "liberty" in the abstract, rather than on how one defines concrete liberties.


TALK ABOUT SNAIL MAIL: A misdirected letter is returned, 31 years later. A report from the Associated Press.


CITE-CHECKING PAT BUCHANAN: My friend Jack Schaedel passes along the following:
I don't know if this is something you're interested in discussing, but there's been something missing from what I've seen of the blogosphere's criticism of Buchanan for his recent anti-Jewish polemic -- he intentionally distorts Max Boot's "admission" that neocons support Israel. To wit:
Yet Boot readily concedes that a passionate attachment to Israel is a "key tenet of neoconservatism." He also claims that the National Security Strategy of President Bush "sounds as if it could have come straight out from the pages of Commentary magazine, the neocon bible." (For the uninitiated, Commentary, the bible in which Boot seeks divine guidance, is the monthly of the American Jewish Committee.)
Boot actually wrote:
Second, support for Israel -- a key tenet of neoconservatism -- is hardly confined to Jews; its strongest constituency in America happens to be among evangelical Christians.
Got that? Boot says support for Israel is a key tenet of neocon. Pat says Boot said a passionate attachment to Israel is a "key tenet of neoconservatism." (Boot also pointed out that a number of evangelical Christians support Israel; Pat must've missed that.)

Pat goes on:
We charge that a cabal of polemicists and public officials seek to ensnare our country in a series of wars that are not in America's interests. We charge them with colluding with Israel to ignite those wars and destroy the Oslo Accords. We charge them with deliberately damaging U.S. relations with every state in the Arab world that defies Israel or supports the Palestinian people's right to a homeland of their own. We charge that they have alienated friends and allies all over the Islamic and Western world through their arrogance, hubris, and bellicosity.

Not in our lifetimes has America been so isolated from old friends. Far worse, President Bush is being lured into a trap baited for him by these neocons that could cost him his office and cause America to forfeit years of peace won for us by the sacrifices of two generations in the Cold War.

They charge us with anti-Semitism -- i.e., a hatred of Jews for their faith, heritage, or ancestry. False. The truth is, those hurling these charges harbor a "passionate attachment" to a nation not our own that causes them to subordinate the interests of their own country and to act on an assumption that, somehow, what's good for Israel is good for America. . . .
This last part is completely outrageous. Again, "passionate attachment" is Pat's term, not Max Boot's! When you describe someone else has having a passionate attachment to something, that is never a neutral observation. The person either shares your passionate attachment, or you are sneering at his inappropriately passionate attachment. . . .
UPDATE: Reader George Carney points out that Buchanan's "passionate attachment" probably refers to George Washington's phrase from his farewell address warning against "passionate attachments" to other nations; this phrase is a favorite among anti-interventionists. This might well have been Buchanan's intention -- but Buchanan never cites Washington's address in his article, and the only two references to "passionate attachment" are the two cited above: "Boot readily concedes that a passionate attachment to Israel is a 'key tenet of neoconservatism,'" which is a misdescription of Boot's point (Boot speaks only of support), and then the quoted "passionate attachment," which in context appears to be a further reference to Boot (since again the phrase is mentioned nowhere else). So I think that Buchanan's description of Boot's position remains quite erroneous.


AWOL: Massive hard drive failure. Many hours spent on phone with Dell tech support. More hours to come as I try to install new hard drive and transfer data from old one. Blogging taking a back seat. Sorry...


TALK ABOUT "TOUGH LOVE": Jacques Chirac about Saddam Hussein:
I'm sure that as a leader he loves his people . . . .
Uh-huh. I realize that this might be just diplomatic-speak (Chirac is also saying that Saddam should have stepped down, so maybe he thinks that saying this might somehow help persuade Saddam to do this; who knows), but one way or another it's pretty funny, in a grim sort of way. Thanks to Best of the Web for the pointer.


SERIOUS CONSEQUENCES: Best of the Web points out:
The Washington Post reports that Foreign Minister Dominique de Villepin is warning America of "serious consequences" if it goes ahead and enforces the U.N.'s mandates on Iraq. We guess this means the French are threatening to send Hans Blix to Washington.


There is a very interesting conference coming up in Southern California (at Chapman University School of Law) this Friday and Saturday. The subject is "American Citizenship in the Age of Multicultural Immigration." The impressive lineup includes fine minds like John Fonte, John Zvesper, Bill Allen, Tom West, Peter Skerry, Paul Gigot, John Eastman, Viet Dinh, Joel Kotkin, et al. My participation will be rather simple. I will try to explain what my father meant in response to a question when we were about to leave Hungary (I was ten years old). I asked him where we were going. He said we were going to America. I asked why to America, and he said this: "We were born Americans but in the wrong place." . . .
Well put.


OH, DO I FEEL OLD: There's a saying that you know that you are getting old when you start to think of doctors and police officers as young people, but this picture that I found on makes me feel even older. Not because this is an all female crew flying a KC-135 tanker--but because a couple of these flygirls look like they should be going to high school with my son!


ORIGINALISM: Phillipe de Croy takes to task my view of originalism and the Constitution: "But of course this argument is only as strong as the premise that things can't be unconstitutional if the founders did not understand themselves to be forbidding them. That position never has commanded a majority on the Supreme Court, in part because of arguments that it would lead to some unappetizing conclusions about segregation, the rights of women, and other such issues." I am a little mystified by this point of view, for three reasons.

Determining Original Intent

What did the Framers mean when they came up with the language of the Constitution, and of the Bill of Rights? It is not enough to look at the text, because both the denotations and connotations of these words have changed, sometimes in quite subtle ways, over the last two centuries. Even dictionaries are not as helpful as one might assume, because the first American dictionary of usage dates from 1828, and English dictionaries of the 18th century are both incomplete and often intended to serve purposes other than descriptive. Johnson's Dictionary, for example, uses the definition of "oats" to get in some digs at the Scots.

This leaves us with the task of deducing the Framers' intent by looking at other documents of the time, in which the Framers expressed their positions. Yes, trying to deduce an overall original meaning from the words of a single Framer is fraught with error potential. Was this guy's view typical? The examples that I have gathered with respect to the role of religion in early America, however, are largely expressions of the Continental Congress, and the First Congress. In the absence of any significant opposition or debate about these expressions, it seems hard to justify that these are not statements of original intent.

Unappetizing Conclusions

The second part of Phillipe's criticism is that following original intent leads to "unappetizing conclusions about segregation, the rights of women, and other such issues." Unappetizing in the sense that we don't agree with these views today, sure, but this isn't particularly relevant to these issues today, for several different reasons.

Did the Framers believe in racial segregation? Consider that racial segregation (at least in the 20th century, de jure for schools, and encouraged by realtors for housing, sense of it) is largely a post-Civil War phenomenon. In any case, whatever original intent there might have been about this has been rendered moot by the 14th Amendment.

The rights of women? The Framers didn't write very much into our Constitution about sex. There is nothing in the Constitution that requires women to have a second class citizenship. There are no Constitutional prohibitions on sexual equality in the workplace. If there were, it would require a Constitutional amendment to remove those prohibitions. But I repeat: the Constitution is astonishingly free of language that puts us in a position of having to choose between original intent and equality of the sexes.

What The Surpreme Court Has Held In The Past

Finally, let me point out that the Supreme Court has (at least in the past) taken the view that original intent is a tool for understanding what the language of the Constitution means, in Robertson v. Baldwin, 165 U.S. 275, 281, 282, 17 S.Ct. 826, 829 (1897):
The first 10 amendments to the constitution of the United States, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply embodied certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the constitution, there was no intention of disregarding the exceptions, which have continued to be recognized as if formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant’s motion....
It is quite clear that the Court meant that the text of the Bill of Rights must be understood within the context that the Framers understood, and not as a free-floating block of text, untethered by anything but a judge's desires.


AN ODD METAPHOR: Thomas Friedman's New York Times column starts with the following analogy:
President Bush is fond of cowboy imagery, so here's an image that comes to mind about our pending war with Iraq. In most cowboy movies the good guys round up a posse before they ride into town and take on the black hats. We're doing just the opposite. We're riding into Baghdad pretty much alone and hoping to round up a posse after we get there. I hope we do, because it may be the only way we can get out with ourselves, and the town, in one piece.
An interesting metaphor -- except that the good guys round up the posse because the good guys are a very small group, and need a lot of other guns by their side. If they don't have them, they might be outnumbered, and the bad guys might win. Of course that's not the case here at all; the allied force (which indeed is mostly the U.S. force) is already plenty large enough to be a posse.

     Now I realize this is something of a quibble -- naturally, no metaphor is intended to provide a perfect analogy. But the point of using the metaphor is that the analogy has to be at least close enough to provide more enlightenment than distraction. Here, the analogy seems to me pretty distant, and thus more misleading than helpful.

     Friedman's broader point is a fair one: We need to engage the rest of the world in helping rebuild Iraq, which will make our actions seem retroactively legitimate in the rest of the world's eyes. I'm not sure whether this requires an "attitude lobotomy" on the Administration's part or requires it to "get off its high horse," but I agree that it would be helpful to have more help from other countries there than we got with the war.

     But it would also, I think, be easier. Many nations' objections to endorsing a war -- which at least ostensibly have to do with pacifism and a fear of destabilizing the region -- aren't likely to carry over to the rebuilding process. It won't be trivial (or cheap) to enroll countries in the rebuilding, but it should be easier than enrolling them in the fighting. Again, the analogy to the posse is quite unhelpful here: Rounding up a posse for social work is very different from rounding it up for a shootout. Perhaps in the West of the movies, finding willing social workers was harder than finding willing gunslingers, but I suspect that these days it will be the other way around.

     So, as I've said before (see the post labeled "AVOID THE FIGURATIVE, BUT NOT LIKE THE PLAGUE"), metaphors can indeed be useful and legitimate. But we should examine metaphorical arguments carefully, to see whether they rest on insightful analogies or on inaccurate ones. When the more accurate summary ends up being something like this,
President Bush is fond of cowboy imagery, so here's an image that comes to mind about our pending war with Iraq. In most cowboy movies the good guys round up a posse before they ride into town and take on the black hats. We're doing something different. We already have so many regular deputies that we don't really need a posse to actually get rid of the black hats. We're riding into Baghdad with our own posse of 250,000. But when we kill the black hats, we need to find some people to help take care of their widows, orphans, and surrendering sidekicks (compassionate cowboys that we are), especially since the orphans are getting near fighting age, and we don't want them coming back in a few years to take their revenge. So I hope we do work hard to find these people, because it may be the only way we can ultimately get out with ourselves, and the town, in one piece.
then we know the original metaphor wasn't terribly apt.


ORIGINALISM AND THE PLEDGE. I confess that I am a little puzzled by the recent post of my new colleague, Clayton Cramer, regarding the pledge of allegiance. He writes that "it is a severe distortion (or ignorance) of history to argue that the Constitution prohibits the use of a phrase like "under God" in the Pledge of Allegiance" because (as I understand him) the founding generation employed such usages commonly. But of course this argument is only as strong as the premise that things can't be unconstitutional if the founders did not understand themselves to be forbidding them. That position never has commanded a majority on the Supreme Court, in part because of arguments that it would lead to some unappetizing conclusions about segregation, the rights of women, and other such issues. Clayton may dispute those particular arguments (I don't know), but in any event the result of them has been that there are lots of ways that people use the word "unconstitutional," one of which -- and the one, as it happens, most often used by the Supreme Court -- is that a practice has is forbidden by the Constitution as it has come to be interpreted in the Court's case law. So my sense is that Clayton is just engaged in a slightly nonstandard usage of "the Constitution": perhaps an attractive one for those who subscribe to its implicit view of constitutional meaning; yet perhaps an unfortunate one to use without explanation, as it needlessly implies that the rest of us who don't subscribe to it are engaged in "distortion or ignorance". But perhaps I misunderstand. In the meantime, though, I remain inclined to think the Ninth Circuit got it right.

Tuesday, March 18, 2003


DEATH VS. LIFE ISN'T THE CHOICE: I have been engaged in a pretty serious email exchange with several relatives concerning this war. Two of my sisters are part of the Vietnam generation, and are definitely on the peace activist side. Another relative is a cousin who served in Vietnam, Air Cavalry, and has strong feelings against war. It's not surprising; Vietnam was such a destructive and pointless war that a whole generation has, unsurprisingly, overgeneralized to the idea that all war, under all conditions, is evil.

Much the same thing happened after World War I--a whole generation of young men went off to fight in one of the most pointless wars in the history of man. The governments of Europe squandered blood, idealism, enormous wealth, and the political goodwill of a whole generation in the trenches of Europe. Less than 20 years later, an evil came along that demonstrated that there are alternatives worse than war. That understandable overgeneralization that "War is Evil" sent tens of millions of people to their deaths, some in combat, some from aerial bombardment, many in gas chambers, others shot to death by the Einsatzgruppen.

Here is an excerpt from the the email that I have just sent to these three well-meaning relatives, explaining why I support this war--and why the choice isn't peace vs. war, nor is it death vs. life. Warning: there is some frank discussion of the tortures used by Iraq's government below; I know some of you can't really handle this--you might want to skip over this entry.

The choice isn't death vs. life; the choice is deaths in a war that may end the savagery of running living people through plastic shredders, and deaths that will continue for many decades more. As Prime Minister Tony Blair pointed out a while back, this enormous demonstration against the war in London was about the size of the number of people that Hussein has killed, with the war he started against Iran (a fight over land), against Kuwait (a fight over oil), the genocide of Shiite Muslims and Kurds in his own country, and the vast number exterminated for real and perceived political crimes.

I can understand the upset with a war fought for mercenary reasons. If this war was about oil, I would be very upset. (It does seem as though the French veto may be about the tens of billions of dollars in contracts the French national oil company recently concluded with Iraq.) If this war was about Israel, I would be only slightly less upset. But this war is about disarming one of the most evil leaders in the world today, a thug who gouges out the eyes of children to force confessions from their parents; whose police use power drills in hands; and cut out tongues as punishment for free speech. This is a government that will use weapons of mass destruction to bring many of Iraq's neighbors under Hussein's control through blackmail. The risk that Hussein might supply those weapons to al-Qaeda, out of spite or for mercenary reasons, is part of why we are not looking the other way.

U.S. motivations are self-interested; that is part of why we are prepared to risk American lives, suffering, and political goodwill to destroy this evil government. There are other evil governments in the world. We have tolerated some of them because they were allies; we have tolerated others because they are only torturing to death their own people, and pose no direct threat to us. None of these are things for which America should be proud. But it is better to be inconsistently right than consistently wrong.

Am I an "armchair warrior"? Yup. Too old now. I can remember when I was 26, I talked to Air Force Reserves. I was still young enough. At the time, I couldn't afford to take the three months off for basic training. Not, "too cheap," but literally couldn't afford to raise my family without a software engineer's paycheck for three months. By the time I could afford to do so, I was too old for the reserves. (Flat feet and blind as a bat would probably have excluded me, anyway.)


MORE INTERESTING STUFF ON IRAQ: The latest from Thomas Friedman.


HUH? Bill Bennett has a pretty good pro-war piece at, but the brief summary phrase that foxnews provides on the front page is just mystifying:
Bush is labeled a warmonger for putting together a coalition

UPDATE: The summary has been changed to the more sensible "Bush is labeled a warmonger for making plans to oust a tyrant."


"UNDER GOD": I posted this to my personal blog a few days ago, but since some people seem to have misreadmy point, I thought I would make this a bit more explicit. What I had written here was:
The next time the ACLU tries to argue that the phrase "under God" in the Pledge of Allegiance is unconstitutional, hand them this.
My point is that it is a severe distortion (or ignorance) of history to argue that the Constitution prohibits the use of a phrase like "under God" in the Pledge of Allegiance. There might be a good argument that making the Pledge of Allegiance mandatory is stupid. There might be a good argument against having "under God" in the Pledge today, when there are some significant number of people who are atheists, agnostics, or otherwise squeamish about such a theistic statement in an official document. But it is not contrary to the Constitution, based on the example provided by America's first national government.


ALTERNATE CAPTIONS FOR THE OFFICIAL WARNING PICTURES: Mark Kleiman was right -- these are laugh-out-loud funny.


THE "ATTACKING IRAQ WILL SET A BAD PRECEDENT" ARGUMENT: I discuss this argument -- which is close kin to the slippery slope argument that I've been writing about recently -- in Slate today. The piece has just been posted, so get it while it's e-hot. Here is the conclusion (which I hope is supported by the rest of the article):
Precedents and slippery slopes can be powerful forces and can sound like powerful arguments. We should indeed think about the indirect consequences of our actions, not just the immediate ones. But the phrases "what about the precedent?" and "where do you stop?" don't magically mandate inaction. Rather, people who make these arguments must concretely explain how our action today would supposedly help lead to others' action tomorrow. They haven't done so here.

Our invading Iraq will not set a dangerous precedent or much of a precedent at all. We should focus on the costs and benefits of this war, and not on its supposed precedential effects on future wars.


DISSENT: Daniel Drezner has an excellent point (for links, go to his post):
Op-eds like Stanley Kutler's in today's Chicago Tribune always puzzle me. Here's Kutler's two first paragraphs:

"As we march to war, the Bush administration's interest is to discredit, even foreclose, dissent.

Passivity and a sense of powerlessness are pervasive everywhere. Tabloids and cable channels refer to the 'treason' of celebrities who oppose President Bush. Our political leaders march in lockstep with the president. The so-called 'opposition' hedges its bets, 'patriotically' supporting Bush's actions, but ever hopeful he will stumble on the economy and give them the opportunity of 1992 all over again."

It's painfully obvious that dissent is not being stifled. It's painfully obvious that serious media organs have raised qualms about the Bush administration's actions. It's painfully obvious that some Democrats support the President on principle and some oppose him out of principle (then there's John Kerry). Why would Kutler write these patently silly lines?

Perhaps because anti-war advocates can't are losing the argument with the American people. Why are they losing their argument? Click here for one possible answer.

First rule of politics -- if you lose an argument, blame the messenger, not the message.


U.K. FOREIGN OFFICE ON THE LEGAL BASIS FOR THE ATTACK ON IRAQ: Here's their statement. Thanks to lawprof Alan Meese for the pointer.


CHIRAC TRYING TO HAVE IT BOTH WAYS: This news item is astonishing in its doublemindedness:
France has announced it could assist any US-led military coalition if Iraq uses chemical and biological weapons.

The turnaround comes after strong French opposition to a war in Iraq, including threats to veto a UN Security Council resolution paving the way for armed conflict.

French ambassador Jean-David Levitte said: "If Saddam Hussein were to use chemical and biological weapons, this would change the situation completely and immediately for the French government."
In short, if Iraq does have weapons of mass destruction, France will be quite ready to help us--though by the time they arrive, most of the real fighting will be done--but France will doubtless want a part in the benefits of rebuilding Iraq.

If Chirac is so sure that there are no such weapons present that no ultimatum is acceptable, why is he saying this now? If Chirac thinks that there is a real possibility that there are weapons of mass destruction there--enough to publicly discuss stepping in to help--why has he been obstructing UN Security Council actions on this?

Once this is over, France is not our ally.


TONY BLAIR'S SPEECH: It's available here, and it's worth reading in its entirety. Here are a couple of key excerpts:
Last Monday, we were getting somewhere with [a proposed resolution]. We very nearly had majority agreement . . . .

Then, on Monday night, France said it would veto a second resolution whatever the circumstances. Then France denounced the six tests. Later that day, Iraq rejected them. Still, we continued to negotiate.

Last Friday, France said they could not accept any ultimatum. On Monday, we made final efforts to secure agreement. But they remain utterly opposed to anything which lays down an ultimatum authorising action in the event of non-compliance by Saddam.

Just consider the position we are asked to adopt. Those on the security council opposed to us say they want Saddam to disarm but will not countenance any new resolution that authorises force in the event of non-compliance.

That is their position. No to any ultimatum; no to any resolution that stipulates that failure to comply will lead to military action.

So we must demand he disarm but relinquish any concept of a threat if he doesn't. From December 1998 to December 2002, no UN inspector was allowed to inspect anything in Iraq. For four years, not a thing.

What changed his mind? The threat of force. From December to January and then from January through to February, concessions were made.

What changed his mind? The threat of force. And what makes him now issue invitations to the inspectors, discover documents he said he never had, produce evidence of weapons supposed to be non-existent, destroy missiles he said he would keep? The imminence of force.

The only persuasive power to which he responds is 250,000 allied troops on his doorstep.

And yet when that fact is so obvious that it is staring us in the face, we are told that any resolution that authorises force will be vetoed. Not just opposed. Vetoed. Blocked.
And in another vein -- and this is a good response to those who (correctly) point out that 3000 deaths on Sept. 11, while tragic, isn't that much in a grand scheme of things and then (incorrectly) limit the discussion to how we should act given the risk of similarly deadly attacks:
[W]hat was shocking about September 11 was not just the slaughter of the innocent; but the knowledge that had the terrorists been able to, there would have been not 3,000 innocent dead, but 30,000 or 300,000 and the more the suffering, the greater the terrorists' rejoicing.

Three kilograms of VX from a rocket launcher would contaminate a quarter of a square kilometre of a city.

Millions of lethal doses are contained in one litre of Anthrax. 10,000 litres are unaccounted for. 11 September has changed the psychology of America. It should have changed the psychology of the world. Of course Iraq is not the only part of this threat. But it is the test of whether we treat the threat seriously.


REDUCING THE COST OF DOING BUSINESS (AND A CAUTIONARY TALE): Why do you need to get a Social Security earnings statement every year? To make sure that your employer is actually putting your money and theirs into Social Security.

A former employer that had taken to issuing promises instead of paychecks, seems to have saved money by an even more devious method. My statement of earnings from Social Security last year showed essentially no earnings in 2001. When I queried the Social Security Administration last year, they told me to wait until 2003 to check back, because payments are sometimes credited very slowly. I just checked back, and there is still no evidence of earnings in 2001. This means that roughly $5000 in Social Security taxes withheld by my employer--and the matching $5000 "contribution" that the employer pays--were never credited to my Social Security account.

Social Security will be going after the guilty parties on this--but if you don't check your earnings statements from Social Security every year, you won't realize that the money that you thought was in your account, isn't there.

UPDATE: I received a number of emails suggesting that I was either intentionally or out of ignorance legitimizing the Social Security system by referring to my "account." Yes, I know that the money isn't going into a specific account. Yes, I know that the relationship between money I put in and the money that I may eventually get out of it is indirect. The formula used for calculating your Social Security check is complex, and cares more about the last few years that you worked, not the total amount that you paid into the fund.

My father worked for 40+ years, but because he was in poor health the last several years before he retired on disability, and he did a very physical job, as a welder, his check was astonishingly small--quite a bit less than my older brother receives, who had worked for about ten years before mental illness disabled him. The Social Security formula isn't terribly fair, or sensible. I know that.


WHERE EUROPEAN GOVERNMENTS STAND: Andrew Sullivan excerpts a headcount from Stratfor:
There are three categories: countries that explicitly support the U.S position; countries that support it but wanted a second resolution; and countries that oppose war against Saddam. In the first camp, we have the United Kingdom, Spain, Denmark, Italy, Latvia, Lithuania, Poland, Hungary, Romania, Bulgaria, Albania, Macedonia, Croatia, Portugal, Bosnia and Montenegro. In the second camp -- supportive -- we have
the Netherlands, Estonia, the Czech Republic, Slovenia and Slovakia -- a bloc of five. But of these, The Netherlands sent Patriot missiles to Turkey before NATO approved the shipment, while the Czechs and Slovaks have sent chemical detection teams to Kuwait.
I'd put those five into the broadly positive column myself. That makes a total of 21 European countries in favor of war. Then we have the neutrals: Ireland, Austria, Finland, Serbia, Switzerland and Norway. And the opponents: France, Germany, Belgium, Luxembourg, Sweden and Greece.
As Sullivan points out, this should be kept in mind when one hears that "Europe" opposes the war. (Naturally, polls of the European public -- which I'm told are generally anti-war -- are also relevant, but as recent polls show, the public in democracies often does follow their government's lead on such matters.)

UPDATE: Daniel Drezner points out that some non-European governments support our position too, most significantly the governments of Australia, Japan, and South Korea. Not quite "unilateral," seems to me.


SPREADING DEMOCRACY: Orin Kerr points out that one of the disputes is whether this war will spread democracy or inhibit it:
DEMOCRACY: Those for the war argue that the war will bring democracy to the Middle East, those against the war argue that this goal will fail and make U.S.-style democracy less likely to spread in the Middle East.
Unlike some of Orin's other points, this is a no-brainer. This war cannot make is "less likely" for U.S.-style democracy to "spread in the Middle East." There are no negative numbers on this scale; as things now stand, U.S.-style democracy has absolutely no chance of spreading in the Middle East.

Kuwait is as close as the Middle East gets to U.S.-style democracy, and this is still a long ways from the target. Don't take that as criticism of Kuwait; what Orin calls "U.S.-style democracy" is a pretty recent concept in the Western world. For every example like Iceland's Althing, the Swiss Confederation, and the American republic (all of which took a long time to reach anything like "U.S.-style democracy"), we have plenty of depressing examples of how easy it is for nations to backslide on the concept: Hitler's Germany and Mussolni's Italy being the most blatant. If Kuwait takes a century or two to reach "U.S.-style democracy" or some Islamic equivalent of liberty, this would still be rapid progress compared to what it took Europe to do.

UPDATE: A number of readers have said, "What about Israel?" Well, yes, Israel is close to a U.S.-style democracy. They do have a state religion, however, and there are some aspects of this that I find put them outside that description. I'm not thrilled with some of their actions, even from the very beginning, when various Zionist factions engaged in acts of terrorism and very Old Testament extermination of Arabs. I understand that they are in a bit of a pickle--how do you deal with suicide bombers happening every week? There's much to admire about Israel's ability to avoid a full police state, considering the circumstances. Their tendency to see every security threat in apocalyptic terms is quite understandable, considering the Holocaust, and the really nasty crowd that they have as enemies. Israel as a liberal democracy still has a ways to go to be in the category as the U.S., Canada, Britain, Germany, and even France.

What about Qatar? I hadn't thought about them, but from what I have read, they are closer to benevolent dictatorship than "U.S.-style democracy." This doesn't mean that they aren't moving that direction (with a level of press freedom that most Arab countries don't have), but that's not quite what I had in mind.


THE UNCERTAINTIES OF WAR: Listening to the President on the radio last night, I kept thinking, "Man, I sure hope he knows what he's doing." Like many people, I have mixed feelings on the war in Iraq. The way I see it, the war is an enormous gamble; it will shake up the Middle East and the rest of the world with it, and the key question is whether on average this will be for the better or for the worse. I can see both sides. Indeed, it seems to me that the arguments pro and con are in many ways mirror images of each other, with the 'pro' arguments offering the optimistic assessments and the 'con' arguments offering the pessimistic ones. A few examples:
CASUALTIES: Those against the war argue that many lives that will be lost; those for the war argue that in the long run the war will save many more lives than it will cost.

DETERRENCE: Those for the war argue that the war will deter future terrorism; those against the war argue that the war will encourage it.

INTERNATIONAL RELATIONS: Those against the war argue that the war will damage U.S. relations with the world community for many years; those for the war argue that in the long run the world will see the importance of getting rid of Saddam and will appreciate and admire the U.S. efforts.

DEMOCRACY: Those for the war argue that the war will bring democracy to the Middle East, those against the war argue that this goal will fail and make U.S.-style democracy less likely to spread in the Middle East.
     I envy those who seem certain that on balance one side is substantially more likely than the other. I see it as pretty close, or more accurately, far beyond my expertise to make a call one way or the other. All of which leaves me uncertain as to whether the President's strategy is the right one, and leaves me thinking, "Man, I sure hope he knows what he's doing."


"BILL CLINTON, HAWK": Mickey Kaus has the quote from Clinton's op-ed in the Guardian:
As Blair has said, in war there will be civilian was well as military casualties. There is, too, as both Britain and America agree, some risk of Saddam using or transferring his weapons to terrorists. There is as well the possibility that more angry young Muslims can be recruited to terrorism. But if we leave Iraq with chemical and biological weapons, after 12 years of defiance, there is a considerable risk that one day these weapons will fall into the wrong hands and put many more lives at risk than will be lost in overthrowing Saddam.
The piece repeatedly praises Tony Blair, and I assume that Clinton published it in an English newspaper to try to help Blair, who's under heavy assault right now within his own party. But I might well be wrong on the latter point; I have no real sense for internal British politics.


MORE ON THE FREEWAY HORSEMAN: Reader Gerard Van der Leun writes:
I encountered the Horseman in Laguna Beach along the Pacific Coast Highway. He had been pulled over by the Laguna Beach police for an interview. I pulled the car over, got out, and took a number of pictures of this encounter. [EV: I've posted one here.]

It seemed that this man was on his way to Texas. He said he'd started at the Canadian border and his plan was to ride to San Diego and turn left.

He had what he called a "shoulder pass" which he drew from his pocket and presented to the officer. Animal control also showed up and that officer informed the cowpoke that he did not have his dog on a leash (!) He replied sensibly that his dog (named, I swear, "Dog") knew how to follow along, and that if he put a leash on him from the saddle he risked strangling the dog. ("Horse goes one way, Dog goes another. Tough on Dog, officer.")

The animal control officer began a lecture which was interrupted by the officer in charge who informed everyone that what they were going to do was let this man continue on his way and give him a police escort out of town.

I assume the officer saw the issue of providing transport for two horses to some undisclosed location as well as the dog, while they were working the cowboy as just far too much paperwork to be contemplated. That and noting about 15 citizens gathered and ready for a sincere chat with the city council probably gave him pause as well.

The cowpoke rolled a smoke, nodded, saddled up and was escorted out of town.

I like to think he's still out there making his way from Canada to Texas via a left turn in San Diego.


FAMOUS POLES: I got lots of responses, many of which matched my own -- which either means that we're all right or we're all wrong, but makes me feel better in any case! Recall the puzzle:
Name the four greatest Polish-born figures in the arts, letters, and sciences. . . .
My answers, which were also shared by readers David Howard, Rick Horvath, Matt Bower, Joyce Park, Davis King, David Hecht, Mark Garbowski, Kate Coe, Debra Doyle, and J.A. Frazier (names listed in order their messages arrived):
1. Nicolaus Copernicus (one that many people missed, but he's got to be #1).
2. Frederic Chopin.
3. Marie Curie (nee Skolodowska).
4. Joseph Conrad (ne Korzeniowski), born in Berdichev, which is now in the Ukraine and was then in the Russian Empire, but which used to be in Poland; and Conrad was ethnically Polish and, to my knowledge, a native Polish speaker.
Other plausible names (to replace Conrad or Curie, I think, since Chopin and Copernicus clearly have to be in the top four): Ignacy Paderewski, Henryk Sinkiewicz, and Isaac Bashevis Singer (yeah, I know the obvious objections and the obvious responses to that one). But I like mine better (they're mine!).


THE PEOPLE SHREDDER: This may cause a loss of appetite. From the Times of London, an article by a Labour MP who reminds us that there are evils worse than war:
“There was a machine designed for shredding plastic. Men were dropped into it and we were again made to watch. Sometimes they went in head first and died quickly. Sometimes they went in feet first and died screaming. It was horrible. I saw 30 people die like this. Their remains would be placed in plastic bags and we were told they would be used as fish food . . . on one occasion, I saw Qusay [President Saddam Hussein’s youngest son] personally supervise these murders.”

This is one of the many witness statements that were taken by researchers from Indict — the organisation I chair — to provide evidence for legal cases against specific Iraqi individuals for war crimes, crimes against humanity and genocide. This account was taken in the past two weeks.

Another witness told us about practices of the security services towards women: “Women were suspended by their hair as their families watched; men were forced to watch as their wives were raped . . . women were suspended by their legs while they were menstruating until their periods were over, a procedure designed to cause humiliation.”
Read the whole article, if you have the stomach for it.

Monday, March 17, 2003


POLAND: I'm something of a Polonophile -- in Russia, my parents got much of their knowledge of the West through magazines they got from relatively liberal Poland, and they always had good things to say about that much-abused country -- and I'm happy to see that they'll be contributing a force, albeit a token one (200 soldiers), to the war.

     In their honor, here's a puzzle: Name the four greatest Polish-born figures in the arts, letters, and sciences. Honorable mention to the first message to volokh at that matches my answer, whether my answer is correct or not. No questions about the rules, please; you'll have to figure out who counts as Polish-born on your own -- the boundaries of Poland have been notoriously variable, so I'm focusing on someone born a Polish speaker in the general area of Poland.

UPDATE: The answers are here.


Who Am I? And Why Do I Blog? First of all, Eugene has given a short summary of who I am. Here's a somewhat longer description.

Yes, I am an historian. I have written four history books (plus another book that is neither fish nor fowl), a few scholarly papers, and gobs of popular magazine articles. (Those links are there for a reason--so that you will visit, and read the full text of the articles and book excerpts. This will therefore increase demand for telecommunications equipment, and put some of my friends in the telecom industry back to work.)

This brings us to another quirk. My BA and MA are in History. My areas of specialty are weapons regulation and black history (two surprisingly connected subjects). As often happens, of course, no one pays you to exercise your passion, and I can't take the vow of poverty that goes with teaching history, so I haven't quit my "day job" as a software engineer. I've been doing this for about 25 years now, and I don't expect to be able to stop doing this for a living until my son is out of college.

So why do I blog? To make the world a better place. Seriously--to raise consciousness about the dangers of totalitarianism, and its close relative, unlimited democracy. As I look back on my youth, growing up in Santa Monica, California, I can identify three defining moments in creating my political ideology.

The first was a woman who worked at Baskin-Robbins, an ice cream store, on Wilshire Boulevard. She had a tattoo on her arm. Unlike today, when tattoos are all the rage among my daughter's generation, this tattoo wasn't particularly artistic, and not outwardly offensive. It was just a number. In the some way that a manufacturer serial numbers valuable pieces of equipment, her "owners" had numbered her. As far as they were concerned, she wasn't a human being with hopes and aspirations; she was a piece of capital equipment that they would use as long as they needed her. She was fortunate that unlike many of her fellow pieces of "capital equipment," she did not reached the point of diminishing returns before liberation, or like millions of others, she would have been scrapped, and parted out for her dental work, her hair, and the miserable rags that she wore.

The second defining moment was a teacher that I had for German in junior high. Mitre de Boer was an interesting woman, who had taught German, English, Dutch, French, Latin, and Greek. She was born in the Dutch East Indies (now Indonesia) before World War I. She was full of interesting stories (some of which I will tell you, if you are good), but one of the most powerful was her description of her work with the Dutch Resistance during World War II. Her specialty was forging identification cards to assist in smuggling Jews and other Untermenschen out of the Netherlands. (It helped that the German military commander supplied her group with blank ID cards--not every German was a Nazi, and many did not follow orders.) As she told of us this, she mentioned one young man that left for Switzerland, using a false ID, who never made it--and even thirty years later, her eyes misted up. Her boyfriend? She never said, but the impact was obvious.

The third defining moment was living in Santa Monica in the late 1970s, when Tom Hayden and my fourth cousin, Jane Fonda, were running a little political machine that used rent control as their method of taking control. The power madness I saw there, both at City Council meetings, and when I ran for City Council in 1981, persuaded me that the totalitarian instinct is not limited to history books and foreign lands.

These three events in my life play a big part in why I am a gun rights activist. Never again.


MARGINS OF ERROR: Here's my take on Eugene's post below (Sunday at 1:23 p.m. if you get the Blogger bug), on whether a 4% drop in poll numbers (where both polls have about 1000 people and therefore a 3.1% margin of error) is statistically significant. (Assume there's no rounding error here and the 4% is exact.)

Noah Snyder is right that the difference between these two polls has a standard deviation of about 2.15%. So if we want to test the hypothesis Are the two approval ratings equal?, we should use a margin of error of 1.96 standard deviations, and we get a margin of error of 4.3%.

So a 4% drop is within this margin of error. We can't reject the hypothesis that the approval ratings are equal.

A digression: This is of course at the 95% significance level. Why 95%? Well, everyone's using it, and all margins of error in polls are calculated at that significance level. Therefore, Matthew Yglesias's finding that the probabilities are different at the 80% level may be true (actually it's higher, though still below 95%) but is part of a different debate. Also, remember that 95% significance wouldn't mean "we're 95% confident that the approval ratings have fallen" if the difference were greater than the margin of error -- because then using 95% would seem absurdly high, and why not use 90% or even 50%? The 95% number has more to do with the technical concept of hypothesis testing, and it means "if the approval ratings were equal, there's a 95% chance that the difference would still fall within a 4.3% band around 0% just due to chance."

Which is another way of saying: "If the ratings were the same and we did twenty surveys using 1000 people, nineteen of them would give us numbers within 4.3% of the original survey, either higher or lower." Or: "If the ratings were the same, then using a 4.3% confidence interval would give us only a 5% chance of committing Type I error, that is, mistakenly rejecting a true hypothesis." That's very different than saying "we're 95% confident that there's no change," since these margin-of-error calculations assume the hypothesis is true. This doesn't even begin to cover guarding against Type II error, that is, trying to avoid mistakenly accepting a hypothesis if it's false.

So where do we differ from Noah? We're both testing the same hypothesis: Are the approval ratings equal? (or: is rating 1 - rating 2 = 0?) and we both agree that the standard deviation to use is 2.15%. But we specify different alternative hypotheses. Our alternative hypothesis is Are the approval ratings different?, while his alternative hypothesis is Is the second approval rating lower?

So our test is two-tailed and our 95% confidence interval is [-4.3%, +4.3%] -- we take into account the possibility that the approval rating could have gone up, so we reject the equality hypothesis if the difference is greater than 1.96 standard deviations, or 4.3%, in either direction. His test is one-tailed and his 95% confidence interval is [-infinity, +3.5%] (a lot wider, but still covering 95% of the probability) -- he assumes that "we only care about the error in one direction," so he rejects the non-dropping hypothesis if the second probability is smaller by more than 1.65 standard deviations, or about 3.5%. The actual difference is 4%, inside our confidence interval but outside of his, so that's why we get a result of equality, while he gets the seemingly opposite result of dropping.

Why should we prefer one-sided or two-sided tests? Here's what one college textbook of mine says about comparing two samples to see if they have the same mean:

The [two-sided alternative] is appropriate if deviations could in principle go in either direction, and [the one-sided alternative] is appropriate if it is believed that any deviation must be in one direction or the other. In practice, such a priori information is not usually available, and it is more prudent to conduct two-sided tests.

John A. Rice, Mathematical Statistics and Data Analysis ch. 11, at 347, 352 (1988). In this case, we don't have a priori reasons to believe that the President's Iraq approval ratings have fallen. The 8% drop in overall approval numbers from the other poll is not such an a priori reason -- it's just another poll, which is another piece of data we could use to test this hypothesis. Since Bush Iraq approval and Bush overall approval are probably correlated, we could in principle use both sets of polls together to test both sets of approval ratings -- but we'd still need to use two-sided tests each time.


MORE STUART TAYLOR ON TORTURE: Stuart Taylor points to some alleged cases of U.S. military and law enforcement officials abusing detainees -- if the accounts are accurate, they are extremely troubling. Moreover, Stuart's reputation as a balanced and nondoctrinaire commentator, both in general and on this issue, adds considerable force to his allegations. (I speak here just about allegations of abuse; allegations that some people might be "wrongly classified as enemy combatants" are a different matter, for complicated reasons that I've blogged about before.)


FREEWAY HORSEMAN MYSTERY SOLVED? Responding to my post about the man riding his horse on the freeway (with another horse in tow, a dog in front of him, and an apparent police escort behind), reader Mark Seecof suggests a possible explanation:
Camp Pendleton [a large U.S. Marine Corps base] occupies the entire littoral between San Onofre and Oceanside, except for the I-5 right-of-way.

California ordinarly forbids pedestrians, bicyclists, people riding or driving horses or oxen, and other riff-raff ;-) to use freeways -- but this rule is relaxed when a freeway is the only road available.

Before 9/11 non-motor traffic along the coast through Camp Pendleton was diverted for safety onto the former US Highway 101 pavement, parallel to I-5. However, that road is now closed for security reasons (it's not fenced). So the only remaining road is I-5, which means that horsemen get to use the freeway.

I doubt that that CHP escort was mandatory -- it was probably a courtesy.

For lagniappe, there's a portion of I-5 on the Northern edge of San Diego between Genesee Ave. and Sorrento Valley Road which enjoyed a similar rule waiver for decades, because it was the only road. There were permissive signs posted at the street ends of those ramps, and forbidding signs ("pedestrians, bicyclists, etc. MUST EXIT...") on the freeway near those exits.
Mystery solved (maybe).


STANFORD TO "INVESTIGATE[]" ANTI-IMMIGRATION FLYERS FOR SUPPOSED "INTOLERANCE"? From The Stanford Daily. The oddly named Acts of Intolerance Protocol is a pretty mysterious document, so it's hard to tell exactly what the "investigation" would involve or lead to, but the controversy seems to bear watching. I hope the student government official is not accurately predicting Stanford's reaction.
A group of Stanford students complaining that the flood of skilled international graduate students is making the job search more difficult for U.S. citizens posted fliers throughout east campus graduate student residences at the beginning of the month. Posters reading “Beware! H1B and L1 visa programs forcing Americans into unemployment” appeared in Escondido Village and Rains Houses, provoking many graduate students to label the claims racist and ignorant. . . .

Graduate Student Council Financial Officer Jeff Catalano, a fourth year doctoral candidate in geological and environmental sciences, pointed out the applicability of the University’s Acts of Intolerance Protocol.

“These fliers may be considered acts of intolerance, and will probably be investigated by the University,” Catalano said.
UPDATE: The Cardinal Collective suggests that the Protocol doesn't really allow any punishment for mere speech, but just aims at providing some sort of mediation to soothe hurt feelings -- hope they're right.


MARK KLEIMAN ON TORTURE: Mark criticizes the Stuart Taylor piece that I linked to a few days ago; I don't think I fully agree with Mark's analysis, though his bottom line might be correct (I remain torn on the subject) -- but in any case, Mark's post is definitely worth reading.


CLAYTON CRAMER: I'm delighted to report that Clayton Cramer, a prominent Second Amendment historian and a noted blogger in his own right, is tentatively being assimilated to -- er, is tentatively joining The Conspiracy. As I've mentioned in the past, this sort of thing is always an experiment; perhaps he might ultimately decide that solo blogging is the way to go, and we'd entirely understand that. But we think that this will prove to be a fruitful collaboration, for him and his readers and for us and ours. Clayton's e-mail address is clayton, followed by the at sign, followed by


THE LIMITS OF POLLS: just added a CBS News poll that was done over the weekend (margin of error +/-3%). Here are two questions (output slightly reformatted):
"Which of these comes closer to your point of view about the U.S. taking military action against Iraq? (1) The United States should take military action against Iraq even if the United Nations opposes that action. (2) The United States should take military action ONLY if the United Nations supports the action. OR, (3) The United States should not take military action against Iraq at all."

Even if UN Opposes 49%
Only if UN Supports 40%
Not At All 9%
Don't Know 2%

"What if the UN Security Council votes against taking military action against Iraq? Would you approve or disapprove of the U.S. taking military action against Iraq if the UN votes against such action?"

Approve 54%
Disapprove 40%
Don't Know 6%
The two questions seem to describe the same events -- but on the key issue, which is whether the U.S. should go to war even without U.N. support, the first poll yields a 49-49% while the second yields a 54%-40% for.

     The difference in the margins is large enough to be statistically significant, but I want to suggest that it is not actually significant -- that the true margin of error in a poll exceeds the statistical one, in large part because a lot of people are undecided enough that you can't really capture an opinion that they don't really fully have.

     Yes, there are differences in the wording that might explain the difference in result; I suppose it's theoretically possible that some fraction of people would "approve" of U.S. action even though they think the U.S. "should not" take the action, or think the U.S. should go to war "if the UN votes against" but not "if the United Nations opposes the action." But the likelier explanation is that there's a huge swing vote that's undecided, and that's sensitive to subtle cues in the question that change the mood of the voter rather than changing the real meaning of the question.

     This poll thus suggests a 40-20-40 split or at most a 50-10-40 split more than a 49-49 split on one issue and a 40-54 split the other way on a virtually identical one. That's something worth keeping in mind, I think, whenever we hear about 54-40 polls on this issue, or probably on many others.


ALDAILY: I was delighted to see that, a site I've long much liked, lists David Newman's and my short Legal Affairs piece on Slippery Slopes at the very top of the page. If you haven't read it yet, it's your big chance . . . . (Yes, the immediately preceding sentence is logically meaningless, but it sounded right at the time.)


THE PERILS OF POST-DICTION "Stocks Rise on Hope about Iraq." That was another headline in last Friday's Washington Post.

     There's nothing too unusual about it; headlines and stories like this appear just about every day, in every newspaper in the land.
It is total, unadulterated, nonsense -- of no more value as an explanation of the movement in the market than the Horoscopes section ("Yesterday, the Dow rose 45 percent on the occultation of Aldeberan by Jupiter "). The stock market moved one way or another because of the buy-sell decisions of hundreds of thousands, or millions, of individuals and institutions. There may indeed be a connection between those decisions and some single event -- some announcement that the Security Council will delay its vote, or an announcement by the Fed that it will/will not raise interest rates, or the release of data on last month's housing starts, or a speech by the Chinese Foreign Minister, or . . . ].

     The notion, though, that a Washington Post reporter (or anyone else) could actually uncover that connection the day after the event is so preposterous, so laughable, it really makes one wonder how they can ask us to take it seriously.

     I started noticing this phenomenon 4 or 5 years ago, when I read a story in the paper (Wash Post or NY Times, I can't remember which) explaining a sharp market drop to a "delayed reaction" to warnings by Alan Greenspan three days earlier that an interest rate hike was imminent.

     It's breathtaking hubris, really, and not a little disturbing -- just think how difficult it would be to actually show that there had been, in the minds of all those investors out there, a "delayed reaction" to Greenspan's comments -- to make the connection one of the nearly infinite number of things that had happened in the world in those three days and the movement of stock prices . . .

     Since there's absolutely no way to know whether the purported causal connection between Event and Market actually exists, it's all just storytelling. We have this need for some explanations, I guess; it would be somehow unthinkable for the papers to report, every day, "The stock market rose 1.5% yesterday, and we really don't know why."

     Given that it is impossible to do this in a way that actually has some shred of meaning, here is how it seems to work:
STEP ONE. Pick some event occurring during the preceding day that you think should have some effect on stock market prices: Intel announces lower/higher earnings, or the Fed does/doesn't announce an interest rate change, or the Commerce Department releases new job figures, or the Security Council authorizes/doesn't authorize the use of force in Iraq, etc..

     [Note on step one: you may, of course, base this preconceived notion on how the market should work on other stories that have appeared over and over again in the newspaper and that are as nonsensical themselves as the one you are now constructing]

     STEP TWO. Look up yesterday's movement in the Dow.
STEP THREE. Connect the two. If the movement in the Dow is in the direction you think "correct" (ie. interest rates down/Dow up, or Intel earnings down/Dow down, Housing Starts up/Dow up, etc.), make the causal connection between the two, and you're done.

      STEP FOUR. If the movement in the Dow is in the wrong direction, Go back to Step One and pick a different event.

     [ALTERNATIVE FOR STEP FOUR: If the movement in the Dow is in the wrong direction, you can use the Expectations Gambit: If Intel's earnings went down and the Dow went UP, you may say that Intel's earnings went down less than analysts had expected. That will almost always do the trick.]

Sunday, March 16, 2003


"WE'LL ONLY SAY GOOD THINGS ABOUT SADDAM TO YOU": From a San Francisco Chronicle article (thanks to Tim Blair for the pointer):
[O]ne man pulled aside a reporter. "Don't believe anything anyone says here, because we all know that your translator is a government spy," he said. "We'll only say good things about Saddam to you. But 90 percent of us want Saddam to go. We'll cheer the Americans if they come and get rid of him."

Looking nervously around him, he continued: "We want all these regime people to be killed."

The government, for its part, is making few attempts to whip up the public into a war-fighting frenzy. Although it has scheduled a patriotic parade of militias from Hussein's Baath party today, there are few soldiers on the streets, and the sandbag installations that have been thrown up on major avenues or in front of government buildings seem more symbolic than functional. . . .
What do Iraqis really think, and how will they act once the invasion happens? I certainly can't tell for sure; my sense of human psychology is that they hate the brutal regime under which they live, and have no desire to die for it; but I realize I might be mistaken. I am sure, though, that interviews with Iraqis that take place in sight of government watchers -- which to my knowledge account for the great majority of the "Iraqis support Saddam" reports -- are about as reliable as the 100% results in Saddam's "elections."


MOOSE HIRES LAW FIRM OVER ETHICS: This, deliciously, was a headline in last Friday's Washington Post. The mind reels -- what kind of ethical dilemmas might a moose be facing, and why would a law firm be able to help out? The explanation, alas, is something of a disappointment -- just that Police Chief Charles Moose of Montgomery County MD has hired a law firm to advise him on possible ethical problems regarding the book he is writing about the sniper attacks of last Fall . . .


CLINTON AND DOLE ON 60 MINUTES: I just watched Bill Clinton and Bob Dole debate the role of the U.N. on 60 Minutes (you can read the full transcript here). Clinton argued in favor of a strong U.N. role; Dole argued against it. I thought the exchange was pretty embarrassing: undignified, artificial, and unilluminating. Here's an excerpt:
  DOLE: Isn't it time to create another role for the U.N.? Somebody suggested luxury Manhattan condos. That's not a bad idea. I hear you're looking for one.
  CLINTON: Senator, I know your crowd is for privatizing Social Security, so I'm not surprised you also want to privatize the U.N. No one says the U.N. is perfect, but perfect or not isn't it good for America -- in a war against terror -- to have allies? Yes, it can be frustrating -- like when I had to work with a Republican Congress.
     The video made it even worse: they kept bouncing back and forth between the two as they spoke. And the attempts at humor were both lame and misplaced. Humor can enliven a long lecture on a dry topic, but surely the former leaders of the United States government can have a two-minute debate on going to war without loading it up with wisecracks. I didn't expect the Lincoln-Douglas debates, but surely they can do better than this.


POLLS: The two posts below remind me to remind all of you about, an indispensable and to my knowledge highly reliable site that contains the results of (1) a long list of past polls, together with (2) the text of the questions, and (3) the margins of error. Newspaper accounts of these polls are often just appalling; they incorrectly paraphrase the text of the questions, omit important elements of the findings, ignore the margins of error, and so on. is the best way that I've found to check the results. Consult it yourself whenever you see a newspaper article that mentions a poll.


FALSE DICHOTOMY: Here's a quote from a Newsweek/ report:
Most Americans, 85 percent, say they would still prefer that the United States attack Iraq with the full support of the United Nations Security Council. However, approval for the Bush administration’s decision to attack Iraq alone has increased six percent from the first week of February, to 43 percent.
OK, quick: What percentage of Americans support the Bush administration's current plan, which to my knowledge is to attack Iraq together with Britain and perhaps a few other allies, even if the U.N. Security Council doesn't give the go-ahead?

     If you said 43%, you're mistaken -- but that's just because the article suckered you into the mistake. The 43% number is if the U.S. were to attack truly alone, without even one or two allies (something that I believe is not the current administration decision). Here's what the poll results actually were:
"Please tell me if you would support or oppose U.S. military action against Iraq in each of the following circumstances. What if [see below]? Would you support or oppose U.S. military action in this circumstance?"

Would Support [/] Would Oppose [/] Don't Know
% % %

"The United States JOINED TOGETHER with its major allies to attack Iraq, with the FULL SUPPORT of the United Nations Security Council"
3/13-14/03 85 [/] 12 [/] 3
. . .

"The United States and ONE OR TWO of its major allies attacked Iraq, WITHOUT the support of the United Nations"
3/13-14/03 54 [/] 41 [/] 5
. . .

"The United States ACTED ALONE in attacking Iraq, WITHOUT the support of the United Nations"
3/13-14/03 43 [/] 54 [/] 3
. . .
This is still more confusion, I think, sown by the casual misuse of "unilateral" meaning "together with some other countries but not with the U.N.'s approval." The Administration's current plan, which seems to be to attack together with Britain and some other countries, seems to be supported by a 54%-41% majority, rather than opposed by a 43%-54% majority.

AND ONE MORE MISSTATEMENT: Finally, the statement that "Most Americans, 85 percent, say they would still prefer that the United States attack Iraq with the full support of the United Nations Security Council" seems to be incorrect, too, at least if the Polling Report summary describes the entire poll. The only 85% number is the percentage of people who answer "would support" to
"Please tell me if you would support or oppose U.S. military action against Iraq in each of the following circumstances. What if [see below]? Would you support or oppose U.S. military action in this circumstance?" . . .
"The United States JOINED TOGETHER with its major allies to attack Iraq, with the FULL SUPPORT of the United Nations Security Council"
This tells us nothing about the fraction of people who would prefer attacking with the U.N. Security Council's full support and with the help of the major allies, presumably preferring it over attacking with a few allies, or with none -- rather, it's the fraction of people who would support such an attack, without any comparison to any alternatives. The fraction who would prefer the support of the Security Council may be over 85%, exactly 85%, or under 85%; the poll (again, unless there are other questions that doesn't mention) says nothing about this.


MARGINS OF ERROR: A Newsweek piece, up at, begins with the following:
While support for a war against Iraq remains strong, confidence in the Bush Administration’s handling of the conflict has weakened, according to a new NEWSWEEK poll.

The survey, taken on March 13 and 14, puts approval ratings for President George W. Bush’s handling of the Iraqi situation at 56 percent, down from 60 percent six weeks ago. Bush’s approval rating, meanwhile, has declined to 53 percent, down 8 points from the first week in February. . . .
But wait a sec: The survey's margin of error was +/-3%. That means that 56% and 60% are statistically equivalent -- the supposed "weaken[ing]" may well be an artifact of pure chance. The 8% approval rating decline is statistically significant, but that's a general approval rating, which gives us no specific reason to think that the change was due to the administration's Iraq policy.

     Of course, perhaps public confidence in the Bush Administration's actions related to Iraq has indeed weakened -- it's just that the poll doesn't tell us that.

UPDATE: Matthew Yglesias and Noah Snyder suggest I'm mistaken in my math here, and that the difference might in fact be statistically significant. I'm looking into the matter right now; their criticisms seem potentially apt, but I need to (1) think about it some more, and (2) check with Sasha, who's the statistician in the family. But for now, I wanted to flag this as a potential error, just so readers would be on notice. (None of this, by the way, undermines my nonmathematical criticism in the post right above this one.)

FURTHER UPDATE: Sasha -- who knows statistics very well -- reveals the truth, and it turns out that I was correct (though my analysis was too simplistic). The 60% to 56% fall is indeed not statistically significant, since the aggregate margin of error when comparing the polls is +/-4.3%.


UPRISINGS IN IRAQ? A reader points to a report in the Telegraph (U.K.):
Open acts of defiance by opponents of Saddam Hussein's regime have intensified in the past week, with saboteurs carrying out attacks against Iraq's railway system and protesters openly calling for the overthrow of the Iraqi dictator.

The most blatant act of sabotage took place 20 miles south of the north Iraqi city of Mosul when members of the Iraqi opposition blew up a stretch of track on the Mosul-Baghdad railway, causing the derailment of a train.

Before fleeing back to their base in Kurdistan, they left piles of leaflets by the side of the track urging the Iraqi soldiers who were sent to investigate the explosion to join the "international alliance to liberate Iraq" from "Saddam the criminal". In a separate incident, a rocket-propelled grenade was fired at a train illegally transporting fuel from Baghdad to Syria.

Demonstrations were also reported to have taken place in Kirkuk, where an estimated crowd of 20,000 marched on the Ba'ath party's main administrative headquarters demanding Saddam's overthrow. Three posters of the Iraqi leader were torn down and a grenade was thrown at the government building. One senior Ba'ath official was reported killed in the attack.
Have no idea whether it's true, but I hope it is.

This page is powered by Blogger.