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Saturday, September 06, 2003


Music for the ages For my taste, Bach's St. Matthew's Passion is one of the half dozen or so best musical works, in a sublime group along with his B Minor Mass, Beethoven's Late String Quartets, and Mozart's Don Giovanni. I would consider ending the list at those four. I am very taken with a new recording of the work, by Paul McCreesh and the Gabrieli Consort. It follows the "one voice to a part" theory about how the work should be performed, in contrast to most other recordings. In Bach's day the piece was performed this way, though whether from intent or lack or resources is unclear. I know many St. Matthew recordings, I would put this one with Woeldike, Klemperer, and Herreweghe, my other favorites, that makes this a desert island recording for the ages.

For a slam of some recent approaches to Bach, read this piece on Slate, "Speed Freaks do Bach", but note he does not attack McCreesh.

Friday, September 05, 2003


The Horror!
After the rally at Troy State, Lucy Skellett, a sophomore cheerleader, explained how the budget woes affected her. Last year, the cheerleading squad got to travel with the football team. This year, there is no money for away games.

"Four games," Ms. Skellett said. "That's all we get to cheer now, is four games. You know how hard we work out for that?"
If Alabamians won't vote for a $1.2 billion tax increase to help out Ms. Skellett ... well, I'm just speechless. Oh, the humanity!


Sheesh: When I saw the NRO piece headlined Meet Bobby Jindal: The fast-talking conservative who could be the next governor of Louisiana, my first thought was, "Ah, yes, a Brown classmate made disspirtingly good. Surely we're not old enough to have governors from our graduating class, are we?" Sure, Bobby's always been kind of a scarily-impressive wunderkind type, even back when he was approximately the only out-of-the-closet Republican at Brown. (There were lots of Libertarians.) And since his Rhodes he's only been moreso. An Ivy-educated Indian-American Republican with serious health policy knowledge turns out to be in high demand. But still. A governorship?

Then I remembered: he's not my classmate; he graduated a year before I did. He's no older than I am, but at least he'd been out of school longer. My class is still too young to have a governor out of it; and so it's no reflection on me or any of my immediate friends that we're not under consideration to lead a state and we haven't salvaged the finances of any major government program...

UPDATE: Amanda Butler went to Jindal's high school, ten years later, and weighs in with a "sheesh" of her own about the way his legend was deployed there. She's also read his platform, which I studiously avoided doing. I know ex ante that any credible candidate for governor of Louisiana is going to have views that I don't find particularly palatable...


Webulon's Logarithm: In this Washington Post column, Anne Applebaum talks about the proliferation of acronyms in Washington, in the electricity regulation context and elsewhere -- FERC, NAERC, PUHCA, PURPA.

I once noticed that you can go from RCRA (pronounced "ricra," the Resource Conservation and Recovery Act) to another environmental statute, FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act), through RFRA (pronounced "rifra," the Religious Freedom Restoration Act). Also, besides Recovery, Rodenticide, and Restoration, R in -RA endings can stand for Reconciliation (COBRA), Regulation (IGRA), Reclamation (SMCRA), Right-to-know (EPCRA), Reauthorization (SARA) [note: EPCRA is actually Title III of SARA], and, I'm sure, many other things.

Applebaum complains about people who use abbreviations even when they're not necessary, but just to sound in-the-know, as in POTUS, SCOTUS, and FLOTUS. During my job at Department of the Interior this summer, when I was working on Clean Water Act compliance issues, I learned a new term of art, WOTUS, meaning "waters of the United States" (that's the Clean Water Act definition of "navigable waters"). Applebaum also writes:

But abbreviations are also a sign of our times, and not a good one either. A half-century ago George Orwell warned that the proliferation of acronyms heralded the advance of the totalitarian state. An acronym, after all, is a word whose full meaning is concealed by its pronunciation. Think Gestapo, for example, or Gulag -- both acronyms of Orwell's era. The increasing acronym use in Washington may not be totalitarian but it isn't exactly democratic either.

But note a major difference between American abbreviations and Nazi/Soviet abbreviations. American abbreviations are almost all taken from the first letter of each word, with epenthetic vowels thrown in to oil the works (like the stealth vowel in "RCRA" or "apple"); there are exceptions ("Massport," "Caltrans"), but they're pretty rare.

But Gestapo is an abbreviation by syllables of Geheime Staatspolizei (Secret State Police); and think of the cute little abbreviation Nazi (for Nazionalsozialist, though I've also seen NS used for Nazis in the contemporary German press, as in "die NS-Zeit" for "the Nazi period"). And Gulag is made partly by letters and partly by syllables: it's Glavnoe Upravlenie Lagerei, or "G.U.Lag.", the Main Camps Administration.

While the Soviets had plenty of abbreviations by letters (NKVD, KGB, TsKVKP(b)), they were also really big on syllabic abbreviations, such as the Narkom, or People's Committee; imagine PeopComs. Narkomnats, for instance, is the People's Committee on Nationalities. And there's Narkom Pishcheprom, the People's Committee on the Food Industry.

In the '20s and '30s, the Soviets used the word "shkrab," meaning "school worker" (i.e., teachers and staff) -- think "schworker," pronounced "squirker" -- until they dropped it because it sounded too ridiculous. As a joke, my parents sometimes say, when they need to use the bathroom, that they're going to check up on the santech ("santekhnika"), which really is the bureaucratic Russian way of referring to plumbing.

Does this tell us anything about the deep differences between American and Soviet bureaucratic cultures? I report, you decide.

UPDATE: Of course, Orwell's Minipax, Miniluv, etc., from 1984 are self-consciously taken off the Soviet model. Reader Michelle Dulak says some of Philip Dick's fiction has syllabic abbreviations like "polpol" (political police) and "BuOuProv" (Bureau for Outer Provinces). Also, reader Mitch Porcius says he heard that "Nazi" started out as a hostile nickname for the Nazis (who preferred NSDAP), though the Nazis may have embraced the term eventually.

Reader Mostafa Sabet points to a related phenomenon -- having acronyms that make cute words by standing for convoluted concepts, like the RAVE Act, USA PATRIOT Act, and VICTORY Act. (Those stand for Reducing Americans' Vulnerability to Ecstasy, Uniting and Strengthening Americans by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, and Vital Interdiction of Criminal Terrorist Organizations (R? Y?).) He argues, though I'm not sure, that these laws "have the express purposes of sounding nice to conceal their purposes. [He] find[s] it interesting these 3 laws all reduce civil liberties and have 'cute' names at the same time."

And, how could I forget? One major source of American syllabic abbreviations is military speak; reader Shaun Evans sends along this link to such acronyms as CINCLANTFLT, COMNAVSEASYSCOM, OCONUS, OPNAV, and SECDEF. (Of course, the list is chock-full of letter acronyms too.) And how about SUBRON for "submarine squadron"? That's a new twist.

UPDATE 2: Reader George Rennar, who knows his Russian, corrects my interpretation of Gulag (corrected above -- it's Main Administration, not Government Administration). Also, he says not to forget "Narkomindel," the People's Committee for International Affairs, and he says that at some point after the outbreak of the war, foreign reporters in Germany weren't allowed to say "Nazi" in their dispatches but had to say "National Socialist."


Professors' academic freedom and free speech rights: Henry Farrell on Crooked Timber argues that Indiana University is within its rights to deny hosting services to professors who post anti-gay comments on their blogs (or, I assume, pro-choice, or pro-Communist, or anti-war, or whatever else). I don't think their analysis really works. First, he writes:
First off, I’m not at all sure that Indiana University has set up a designated public forum in any meaningful sense of the word. The University’s 1999 rules on ‘Computer Users’ Privileges and Responsibilities’ state that
Use of IU computing resources and network capacity is for purposes related to the University’s mission of education, research and public service. All classes of computer service user may use computing resources and network capacity only for purposes related to their studies, their instruction, the discharge of their duties as employees, their official business with the University, and their other University-sanctioned activities.
These rules also allow computer system administrators to remove information which is
inappropriate, because it is unrelated to or is inconsistent with the mission of the University, involves the use of obscene, bigoted, or abusive material on IU resources, or is otherwise not in compliance with the legal and ethical responsibilities listed in the section, ‘Responsibilities of the User.’
     But under the longstanding tradition of American universities, opining on a wide range of public issues is part of university professors' "research" and "public service" mission. That's why professors regularly write op-eds, talk to reporters, appear on radio and TV shows, and otherwise express their views. So the University's hosting services do create a designated public forum -- a program that facilitates the professors' own speech (much as the funding program in Rosenberger facilitated student speech.)

     It's true that the university tries to exclude, among other things, "bigoted . . . material" from this program. But this is simply an unconstitutional viewpoint-based exclusion. In Rosenberger, after all, the University also created a forum for speech and purported to exclude speech that expresses religious viewpoints; the Court struck that down as impermissibly viewpoint-based. The same applies here.

     Henry Farrell continues:
Second, and here I’m much less sure of my ground, the Communications Decency Act provides a specific safe harbor for this sort of thing. ‘Providers or users of an interactive computer service’ won’t be held liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
Now it may be that a publicly funded university can’t take advantage of this safe harbor -- but it also may be that it can. It seems to me at least to be an arguable point.
This turns out not to work, either. The Constitution prohibits universities from discriminatorily excluding certain viewpoints from a designated public forum. The Communications Decency Act, a mere Act of Congress, cannot exempt university computer systems from this constitutional rule.

     Finally, the Crooked Timber post argues that this is a "non-issue," because Rasmusen can still post his blog at a private ISP. Well, yes, and the student newspaper in Rosenberger could have tried to publish using its own funds; the student groups in Widmar v. Vincent (a 1981 case that held that a university can't discriminate against groups based on viewpoint when it sets up a program under which student groups can generally meet in vacant classrooms) could have met off campus. But the Court has made clear that the First Amendment applies to viewpoint-discriminatory exclusions from designated public fora -- including government-provided funding and facilities -- even when the speakers could just buy access to private property instead of participating in the government benefit. That's what Rosenberger, Widmar, and many other cases hold; and it applies to Rasmusen's anti-gay speech as much as to the speech in those cases.


Indiana University apparently violates academic freedom: According to the Indiana student newspaper,
A Web log created by a business professor to express views on homosexuality and other issues has been removed from an IU server, after causing controversy and angering some on campus.

Professor Eric Rasmusen, who teaches multiple courses in the Kelley School of Business, was asked to take his opinions off a University Web page by Kelley School of Business Dean Dan Dalton, Thursday.

In his Web log, which was accessible to students and staff, he expressed his views about why homosexuals should not be teachers, elected officials and doctors. The log also discussed issues relating to the death penalty, war in Iraq, religion and affirmative action, among others.

In his log posted on the IU server, Rasmusen stated: "A second reason not to hire homosexuals as teachers is that it puts the fox into the chicken coop. Male homosexuals, at least, like boys and are generally promiscuous. They should not be given the opportunity to satisfy their desires. Somewhat related is a reason not to hire a homosexual as a doctor even though you would hire him as a lawyer: you don't mind if your lawyer has a venereal disease such as HIV or hepatitis, but you do mind if your doctor is in a class of people among whom such diseases are common."

The material in question posted on the IU server angered students, faculty and staff both in the business school and around the University. . . .

After Rasmusen spoke with Dalton Thursday afternoon, the professor agreed to remove the materials immediately from the IU Web site, Dalton said.

"Most important, the content of the Web log does not reflect the attitude of the Kelley School of Business," Dalton said. "Any individual has the right have his or her opinion on a personal Web site, but I am not certain about that right extending to an IU site." . . .
     This seems to be a serious violation of academic freedom principles, and of the First Amendment. IU has apparently created what First Amendment law calls a "designated public forum" -- a program (here, the provision of hosting services for Web logs) that subsidizes a wide range of speech by faculty members. Under the First Amendment, and under what I think should be broader academic freedom principles, the university cannot then exclude certain viewpoints from this program.

     The leading case on this Rosenberger v. University of Virginia (1995), where the Supreme Court held that the university couldn't exclude newspapers with religious viewpoints from a program under which the university reimbursed student newspapers for their printing expenses. A program under which the university provides hosting space for professors' Web logs would be covered by the same rule. And of course if the university could thus exclude professors' viewpoints, it can also restrict what student newspapers, student groups, and individual students say in Web logs, chat rooms, or e-mails that use University servers.

     If the concern is that readers might erroneously infer that the university endorses the professors' Web log, then the university could simply require that faculty members post prominent disclaimers explaining that their views are their own, not the university's. Actually, I don't think readers would infer such an endorsement, precisely because universities have long respected faculty members' freedom to express views that administrators don't share. But even if it's reasonable to fear such a reader perception, the solution is a disclaimer, not the discriminatory exclusion of certain viewpoints from a university-created designated public forum for professor speech.

     The Rasmusen post quoted in the article was responding to one of my posts, which took a very different view from Rasmusen's; and I later posted something else, which further disagreed with Rasmusen's post. I disagree with what he says -- but I have to defend his right to say it in the forum that the university has created.


The name "Hillary" seems to have been getting less and less popular -- by a lot -- ever since 1992. The Buck Stops Here has the straight dope, and my quick glance through the Social Security Administration site (follow the link at The Buck) confirms that Hillary has indeed fallen. Parochial note: Its popularity ranking (higher means less popular) used to be much above "Eugene," and is now much below that.

UPDATE: Reader Phoebe Love points out:
I don't think it means everybody hates her [although that could be true]. I think it means that the name Hillary is so famous now -- and otherwise rare -- that to name your kid Hillary you'd have to really love the woman, because the association is so strong. It's like naming your kid Elvis.


Unintended Consequences: One more, and hopefully final, response to David Beito's post on Liberty and Power. David writes that my lectures for IHS "featured a hard-hitting critique of centralized political power and underlined the need to understand the role of unintended consequences." The point is simple. Unintended consequences cut in all directions. There are unintended consequences of action, but also of inaction; of "intervention" or responding to an attack, or "nonintervention," declining to respond. While it is always important to keep in mind that one's favored policies are likely to engender unintended consequences, this applies both to those favoring action as well as to those favoring inaction.


The Limits of Central Planning: On Liberty and Power, David Beito writes:

I still remember how excited I was after first hearing Randy Barnett give lectures for the Institute for Humane Studies. They featured a hard-hitting critique of centralized political power and underlined the need to understand the role of unintended consequences. Indeed, Randy's lectures in great part inspired the name of this website. Few individuals ever put forward a more devastating expose of the hubris of central planners. I assumed at the time, and assume now, that Randy was including the Pentagon and State Department in his indictment.
In my lectures and my book, The Structure of Liberty: Justice and the Rule of Law, I do not condemn all centralized ordering. What I condemn is the centralized ordering--"central planning"--of a society as a whole. Centralized ordering that occurs within an overall spontaneous order is essential to human well being. Here is what I wrote:

Centralized ordering is absolutely vital to implementing the personal and local knowledge of individuals and associations. For this reason, if no other, centralized ordering is inescapable and indispensable to the pursuit of happiness, peace, and prosperity. The university at which I teach would be in chaos were there no administration to schedule classes, assign teachers to subjects and time-slots, collect tuition fees and dispense scholarships, procuremaintenancee of the buildings and grounds, etc. In the classroom, I serve as a "central director" deciding what readings to assign and directing discussion along the lines I determine. Further, Ronald Coase has argued that central direction with a company or "firm" is sometimes preferable to decentralized ordering because it reduces the transaction costs of contracting. . . .

Yet the very pervasiveness of different and overlapping centrally-ordered institutions, such as firms, makes an overall decentralized order all the more essential. Some means of interaction among centralized associations is needed. Superimposing a centralized ordering mechanism on top of the myriad centralized organizations would undermine rather than enhance their value. (57-58)
The US Army is not objectionable because it is a centralized order, but because, like all government institutions, it is a form of coercive monopoly. This is an important distinction to keep in mind, but it does not entail that all products of coercive monopolies are inherently bad or unjust. So, for example, as Lysander Spooner argued here, the post office is an unjust coercive monopoly. This does not make the delivery of mail an immoral or unjust act. If one assumes that the government should not be in the business of building and operating roads, this does not make all roads bad or driving on roads unjust. The Pentagon and State Department are not only coercive monopolies but also enormous government bureaucracies. We can expect they will make lots of mistakes that more competitive market institutions will tend better to (but not always) avoid. This does not, however, make every action taken by the US military a mistake or an injustice.


Libertarianism and the war against terror Like Randy Barnett (easiest to just scroll down), I have had libertarian leanings for a long time but support the wars in Afghanistan and Iraq (though certainly not all of the current war on terror, such as many provisions of the Patriot Act). I've been reading the Liberty and Power blog, written by David Beito and other libertarian-oriented scholars, mostly historians.

This blog has been harping on the Iraq war, very critically, but here is why I think they are wrong. In well under fifty years, it will be possible to destroy New York City, or Washington, with a nuclear suitcase. Or it will be possible to wage biological warfare against Western civilization. Sooner or later, something like this will happen, at least if we do nothing. You can blame our previous interventions as much as you want for this trouble, but a current move to "Swissify" American foreign policy would not remove America as a major target.

Many libertarians argue that invading Iraq will make us more of a target for the nuclear suitcase. I can imagine this argument changing my mind, but right now I don't see the evidence. Many leading al Qaeda terrorists are from Saudi Arabia and Egypt, countries we have supported, not countries we have pulverized. Conversely, we have treated the Mexicans poorly and stolen much of their land, but we don't expect them to blow us up in the foreseeable future. We don't understand terrorism very well, but I don't buy the facile "We bomb them so they will bomb us back" argument.

The question is not whether we have found or will find WMDs in Iraq. The question is what Saddam would have done if we had left him alone, just look at his weapons programs before the first Gulf War. Many libertarians want to claim the fruits of the Gulf War (knocking Saddam down a peg), while having opposed the war itself. Let's be consistent.

I thought, and still think, we needed to something forceful in Iraq, and that we need to be committed to a successful reconstruction, which of course is distinct from simply maximizing spending or troop numbers.

The real question is which policies minimize the chance of the nuclear suitcase. I think we honestly don't know, it is a very tough judgment call no matter what your point of view. But at the very least all libertarians should be radically uncertain about whether non-interventionism will keep us safe in the world to come. It is not a simple question of "liberty versus power," but rather which course will secure global liberties for the years to come.

I've said my piece, I will return to the antiquities topic shortly.

Addendum: Several of you have pointed out that a nuclear suitcase is not needed, a boat with a nuclear weapon, sailed into a major harbor, would do.


Jews for Jesus: I was recently reminded of something that has always a bit annoyed me -- the assertion by some of my Jewish friends that "Jews for Jesus" is somehow an oxymoron. The claim isn't just that Jews for Jesus are misguided or otherwise deserving of criticism; rather, it's that one can't logically or theologically be a Jew and a Christian at the same time, much like one can't be, say, a "Christian for atheism" or (though this might conceivably be a tougher theological question) a "Christian for Krishna."

     As I understand it, this claim is theologically unsound from Judaism's own perspective. Any person whose mother is Jewish (or, I take it, who validly converted to Judaism) is a Jew, no matter what he believes. Irreligious Jews are still Jews, albeit perhaps bad Jews, if they disobey the Law. Jews who follow a false messiah -- which, I take it, is what a convert to Christianity would be, from the perspective of a devout Jew -- are likewise still Jews.

     I'm not describing what I think is the morally or logically right rule -- I'm describing what, as best I can tell, is the rule that's in fact accepted by virtually all strands of Judaism. You may think what you like about the theology or the behavior of Jews for Jesus (I genuinely have no opinion on the subject, since I haven't followed their arguments or practices); but if they were born Jews who accepted Jesus Christ as their Lord and Savior, they are, by the rules of Judaism and Christianity, both Jews and Christians.

     Needless to say, but I'll say it anyway, this is most certainly not intended as an argument in favor of Christianity, a religion to which I personally do not belong. My motives are pure, if not particularly laudable: I've got a pet peeve that I wanted to get off my chest.


Cool clock. Thanks to my friend Haym Hirsh for the pointer.


Libertarians Against the War: Some libertarians I respect enormously oppose the war in Iraq. It was only a matter of time, I suppose, that I might be criticized by them for supporting it. The delay comes from the fact that I have not published anything in support of the war, but have confined myself in print to posting links to articles by those who have. The latest was Hoping We Fail, by Victor Davis Hanson, whose writings I have come to admire over the past several months. Hanson can defend himself against the criticisms made on Liberty and Power (here and here) and this morning he offers another essay that can serve as a response: Are We at War or Peace? Judging the Reconstruction in Iraq. Here is portion that helps explain why I differ from some of my libertarian friends over Iraq:

To summarize, we are in a war with the latest face of an age-old enemy of civilization who hates the freedom of the individual, tolerance of diverse thoughts and practices, human rights, democracy, and modernism itself. Just as Stalinism, Nazism, fascism, and militarism hijacked the good peoples of Russia, Germany, Italy, and Japan, so too radical Islamic fundamentalism, working hand-in-glove with Middle East tyrannies, turns frustrations over indigenous failures into hatred of a prosperous and successful United States. And like past challenges to civilization, such barbarism thrives on Western appeasement and considers enlightened deference as weakness, if not decadence. Thus enemies like al Qaeda, the Taliban, and the Baathists can only be militarily defeated, and the victims of their nihilism aided and abetted by our own efforts at reconstruction and forgiveness — but in that order only.

Just as in World War II the lull between the storms of Iwo Jima and Okinawa or the false calm between conquest of Sicily and the invasion of Italy was not peace, so too after September 11 we are in a real war that will ebb and flow as our enemies regroup and retreat. The key instead is to ignore the daily hype of the media, and keep focused on the larger picture: Which side is in the improved situation? What resources are available to the respective belligerents? What are the costs that each side has endured? By any fair token, the losses after 9/11 have been nearly all our enemies — human, material, and psychological — from bases in Afghanistan to entire nations. Yet such is the extent of our power that al Qaeda, the Taliban, and the Baathists alike sorely feel that they are losing a war, while Americans attuned to the new fall season sitcoms are breezily oblivious that they are winning it.

After Afghanistan and Iraq, we are no longer at the beginning of the struggle, but not near the end either. Rather we are in a difficult middle, in an election year with a restless public that has been so nursed on such rapid, easy victories that even relative successful efforts look feeble in comparison to past miracles. It is not an easy thing, after all, to restore sanity after decades of fascism in the heart of the Arab world, amid enemies like Syria and Iran, and friends such as Saudi Arabia and Jordan.

There are also a number of real problems on the horizon, to which no one in Washington has quite figured out the answer. . . .

Finally, in such a postmodern war without clearly defined borders or fronts, the American people must habitually be reminded of our ultimate aims. Militarily we must reestablish both the ability and willingness to punish immediately any cadre or state that kills or plans to kill Americans. Politically we seek, both by arms and diplomacy, to end the present pathology in the Middle East where autocratic governments create venomous hatred toward the United States among their starving and frenzied to deflect their own catastrophic failures onto us. . . .
I am a libertarian and Hanson is a conservative so we do not agree about everything. But unlike some libertarians, many on the Left, some Republicans and many Democrats, I do think we are in a defensive war and have been since we were attacked on 9/11. I further think that the battle for Iraq is a legitimate part of that overall war, though it and the war can still be lost. This, I believe, is the essence of our disagreement.


Solum on Estrada: Professor Larry Solum (of University of San Diego) has thought harder than most about the nominations process. He has a typically insightful analysis of the Estrada withdrawal on his Legal Theory Blog. Click here. Here are a few excerpts:

The first lesson of Estrada is that Schumer has won the battle within the Democratic Senate Caucus. Ideology is now on the table. Prediction is perilous, but now that the Democrats have opened the door to open ideological warfare, it does seem unlikely that Republicans will choose to remain on the stoop if and when the tables are turned and they find themselves able to block a qualified Democratic nominee of good character whose ideology they find objectionable. . . .

Couldn't the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. No modern filibuster has been broken by the 24/7
option. . . .
He also mentions my NRO proposal Benching Bork: How to End the War Over Judges concerning recess appointments but rightly concludes that "this suggestion does not seem to have moved President Bush."

Later he offers this observation:

[A] gaggle of conservative law professors, lead by Doug Kmiec, have argued that the constitution requires that a Senate majority be able to change the cloture rule. I'm not sure Kmiec is right, but I'm not the judge of this issue. And neither are the courts. When it comes to this issue, the highest constitutional court is the Senate itself. Here is the bottom line. Unless the Senate leadership pushes hard for a rule change, it looks like the filibuster of judicial nominees has been entrenched as consistent with the customs and rules of the Senate.
There is much much more. Check it out.

Thursday, September 04, 2003


Lawsuit Against Big Food: Clayton Cramer comments on the latest version of the McDonald's suit being thrown out.


Great Line from an Interesting Article On the European yearning to be free from Holocaust guilt--''The Germans will never forgive the Jews for Auschwitz.''


Why the economy appears weak, an explanation of "jobless recovery" This link summarizes a paper by Erica Groshen and Simon Potter, from the New York Fed, with a further link to the paper itself.

The basic problem is that fewer new jobs are being created. People are searching for work, and not being rehired, it takes time to for them to find work in other sectors. Sometimes people get rehired in their old jobs, that is not happening so much now (nor is the problem an ongoing destruction of jobs). We have been facing "an unusually high concentration of structural changes." And uncertainty about a number of issues, including the Iraq war and corporate governance problems, has hindered new investment.

This paper is easy to read, maybe not exciting prose, but the clearest explanation of the jobless recovery that I have seen.


Monitoring of prisoner attorney-client communications: On Oct. 31, 2001, the U.S. Bureau of Prisons promulgated regulations that sometimes authorize federal law enforcement officials to monitor some prisoners' communications with their lawyers -- the theory was that this monitoring would be allowed only to the extent needed to prevent clients from conspiring with their lawyers to commit future crimes (which is already outside the lawyer-client privilege).

     Last week, the U.S. District Court for the District of Columbia dismissed, on procedural grounds, a prisoner's lawsuit that challenged Bureau of Prisons regulations (most recently amended not long after Sept. 11) that allowed the monitoring of some prisoners' attorney-client communications. The court concluded that the prisoner lacked standing to sue, because there was no evidence that the regulations would indeed be applied to him -- as a general matter, prisoners would have to be notified if their conversations with their lawyers start being monitored, though apparently the federal government could avoid that requirement if it got court approval for that.

     This seems to me to be a pretty narrow procedural decision, but I thought I'd mention it, since the regulations got a lot of press when they were being enacted.


Rebellion on the right: The Manchester Union Leader, which has occasionally been one of the most influential newspapers on thr (sometimes-extreme-)right because of its ability to play kingmaker or giantkiller in the NH primary, is in an uproar.
Over the course of an hour-long meeting with Ed Gillespie, the chairman of the Republican National Committee, we took great care to give him every opportunity to explain himself fully so that nothing could be misunderstood. The result was a surprisingly frank admission that the Republican Party defines “fiscal responsibility” as increasing the federal budget at “a slower rate of growth” than the Democrats (his words).
The Union Leader treats this as a betrayal of what was once considered a Republican mission to shrink the government. But it's worth emphasizing that it's not, y'know, true or anything that the Bush administration is increasing spending at a slower rate of growth than Democrats, at least if "Democrats" includes Bill Clinton. Non-defense discretionary spending rose by a whopping 20.8% over Bush's first three years, as against a .7% decrease in Clinton's first three years (two of which were one-party Democratic rule).


House-sitter ad: I just saw a flyer posted at the law school; a recent law school graduate is looking for a house to house-sit. What struck me is the closing paragraph: "In the age of the 'budget crisis,' I'm not afraid to admit that I am in one of my own." Well put, and good luck!


Alive and well... A couple of people actually approached me at APSA and inquired as to my well-being, on the basis of my radically reduced bloggage lately. Much appreciated; all is well. My leave year is coming to an end, which means that administrative and student-oriented work has been picking up dramatically. I'm co-organizing a big political theory conference in the spring,, and given the lead times involved, this is a crunch time for the planning. (There will be another crunch time in February-- I have to keep reminding myself of that.) And I've been very happily working away, as well as having a wonderful time at APSA last week, and occasionally getting out for non-work-activities. Last night I went to see the Sox beat the White Sox with another Red Sox fan of your acquaintance.

At APSA I bought... oh, dear... 34 books. If I were to read one per week-- which I won't, once teaching starts-- that would keep me busy until halfway into next summer. So I'm also reading a lot right now, while I've still got some time. I'm alternating back and forth between two (very different but both highly recommended) new purchases at the moment: Enlightenment against Empire, by Princeton professor Sankar Muthu; and Common Law Liberty: Rethinking American Constitutionalism, by James Stoner, Political Science, LSU. I'm hoping to finish 'em both this weekend, and then to pick up Bell and de-Shalit, eds., Forms of Justice:Critical Perspectives on David Miller's Political Philosophy.

Oh, yeah... and I'm supposed to be writing a book, since blogging, reading, APSA-going, and Red-Sox-watching are all entirely non-tenurable activity, and conference-organizing, student-advising, and committee work are only marginally so.

I'm around, and will undoubtedly still have the periodic blogging-bursts.

In the meantime, free Matt! I know, I'm hardly one to complain about a person giving up an individual blog and joining a groupblog. And I'm all in favor of Matt's professional success, so I don't think we should harass the folks at TAP; having too much of an outside constituency is no way to start off on the inside of an organization. But I'll certainly miss Matt's own voice, and hope that someday either TAPPED adopts names or that, when he's hired away to be managing editor of the Washington Monthly or something, he returns his politics-blogging to his own space.


How Clement Vallandigham died: Clayton Cramer, who knows a great deal about 1800s U.S. history, e-mailed me to tell me how Clement Vallandigham died (see the next post). According to this site -- and I've seen it in other reliable-seeming places, too --
[After losing some post-Civil-War races for Congress,] Vallandigham returned to his law practice, earning renown as a talented trial lawyer and gaining a large clientele. In what would be his last case, he acted as defense attorney for a man charged with murder. The unusual defense was that the victim had shot himself accidentally. Vallandigham dramatically recreated the alleged accident with what he thought was an unloaded pistol. The gun, however, was loaded, and Vallandigham shot himself accidentally, suffering an agonizing death several hours later. . . .
If he'd only remembered the basic principles of gun safety . . . .


Estrada and Polling: Byron York's NRO column on Estrada's withdrawal resurrects a laughably biased poll that I criticized here, and then exaggerates the poll's already skewed results. The poll purports to show that Hispanics were wildly enthusiastic about Estrada, but the poll only reached that result after asking a series of one-sided "questions" that would bias respondents in his favor. I could see why Republicans would push this "poll" for political leverage when Estrada was still in play, but to rely on it, as York reports they are doing, to show that Hispanics will wreak revenge on the Democrats for opposing Estrada is simply silly.


Free speech in wartime: Tomorrow in my class, we'll be dealing with speech that advocates opposition to war, and in particular advocates (overtly or covertly) desertion or refusal to obey the draft. The late 1910s and early 1920s Supreme Court cases on the subject upheld laws that ban such speech, but the Court's argument was never framed very persuasively or eloquently. Holmes and Brandeis's dissents were stirring and powerful, but the majority opinions (the earliest of which were actually by Holmes, too) were largely forgettable or conclusory. Eventually, the Court reversed course, and I think correctly held that such speech was constitutionally protected -- but the standard law school canon, unfortunately, doesn't really do justice to the other side, because no Justices on the other side really did a great job defending their views.

     The first source that I therefore include in this unit of my textbook isn't a case, but an excerpt from a letter by Abraham Lincoln. Those libertarians who dislike Lincoln won't find this particularly striking; but my sense is that many students do respect Lincoln, and will take seriously his arguments even if they don't take seriously Mr. Justice Clarke or Mr. Justice McKenna. Here's the excerpt from the book:
[In 1863, Clement Vallandigham -- a prominent Democratic politician and former Congressman -- was arrested for making an anti Civil–War speech, and tried before a military court on the charge of:]
Publicly expressing, in violation of General Orders No. 38, from Headquarters Department of the Ohio, sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.
[The specific allegation was that Vallandigham]
did publicly address a large meeting of citizens, and did utter sentiments in words, or in effect, as follows, declaring the present war “a wicked, cruel, and unnecessary war;” “a war not being waged for the preservation of the Union;” “a war for the purpose of crushing out liberty and erecting a despotism;” “a war for the freedom of the blacks and the enslavement of the whites;” stating “that if the Administration had so wished, the war could have been honorably terminated months ago;” that “peace might have been honorably obtained by listening to the proposed intermediation of France;” ... charging “that the Government of the United States was about to appoint military marshals in every district, to restrain the people of their liberties, to deprive them of their rights and privileges;” characterizing General Orders No. 38, from Headquarters Department of the Ohio, “as a base usurpation of arbitrary authority,” inviting his hearers to resist the same, by saying, “the sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties, the better;” ...

All of which opinions and sentiments he well knew did aid, comfort, and encourage those in arms against the Government, and could but induce in his hearers a distrust of their own Government, sympathy for those in arms against it, and a disposition to resist the laws of the land.
[Vallandigham was convicted, and sentenced to be imprisoned for the duration of the war. Three days later, Lincoln changed his punishment to banishment to the Confederacy.

Vallandigham’s trial excited a great deal of opposition from those who believed that the prosecution violated the freedom of speech. Lincoln’s response to these criticisms was as follows:]
It is asserted in substance, that Mr. Vallandigham was, by a military commander, seized and tried “for no other reason than words addressed to a public meeting, in criticism of the course of the Administration, and in condemnation of the Military orders of the General.” Now, if there be no mistake about this; if this assertion is the truth and the whole truth; if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops; to encourage desertions from the army; and to leave the rebellion without an adequate military force to suppress it.... [H]e was damaging the army, upon the existence and vigor of which the life of the nation depends....

I understand the meeting whose resolutions I am considering to be in favor of suppressing the rebellion by military force -- by armies. Long experience has shown, that armies cannot be maintained unless desertions shall be punished by the severe penalty of death....

Must I shoot a simple minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend into a public meeting, and there working upon his feelings till he is persuaded to write the soldier boy that he is fighting in a bad casue, for a wicked administration of a contemptible government, too weak to arrest and punish him if he shall desert. I think that, in such a case, to silence the agitator and save the boy is not only constitutional, but withal a great mercy....

Nor am I able to appreciate the danger apprehended by the meeting, that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceable future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.

I certainly do not know that Mr. V. has specifically, and by direct language, advised against enlistments, and in favor of desertion, and resistance to drafting, [but that was the effect of his words].... This hindrance, of the military, including maiming and murder, is due to the course in which Mr. V. has been engaged, in a greater degree than to any other cause; and [to Vallandigham personally] in a greater degree than to any other one man....
See Michael Kent Curtis, Free Speech, “The People’s Darling Privilege” 300-18 (2000) and Michael Kent Curtis, Lincoln, Vallandigham, and Anti-War Speech in the Civil War, 7 Wm. & Mary Bill of Rights J. 105, 121-22, 161 (1998), the seminal work on this subject.
You might or might not find this persuasive, but it's better stuff than most what we find in Supreme Court opinions. (By the way, I highly recommend Curtis's "Free Speech, 'The People's Darling Privilege'" -- an eye-opening book about the largely unknown yet quite rich and important free speech debates of the 1800s.)


First day of class: Just started my Free Speech Law class. The first unit is incitement law, and we began with two problems that explore the current legal rule -- the Brandenburg v. Ohio test, under which speech is punishable as incitement to illegal conduct only if it's intended to cause imminent lawless conduct, and is in fact likely to cause such imminent lawless conduct.

     Today's discussion was quite doctrinal, focused on the law as it now is (though there were, I think, some interesting twists in figuring out how the test could be applied); I'm hoping, though, that it provides a helpful introduction for the policy discussion -- what should the proper test be? -- that will begin tomorrow. After all, it's far from obviously true that the legal system should tolerate speech aimed at promoting illegal conduct (especially serious crimes, such as murder); I actually think that the current rule protecting most such speech is about right, but there are some powerful counterarguments, and the case for the rule is quite complex. I look forward to seeing what Harvard students have to say about it.


Estrada's Out: Miguel Estrada has asked that President Bush withdraw his nomination to a seat on the U.S. Court of Appeals for the D.C. Circuit. Here's the Washington Post story and Byron York's NRO coverage.


Upcoming Book Tour: The response to my previous post about my upcoming book tour for Restoring the Lost Constitution: The Presumption of Liberty has been gratifying. To date, I have invitations to speak in the Bay area (Boalt & Stanford), New York City (NYU), Chicago (Northwestern), Atlanta (Emory, GSU), Texas (Houston) Florida (FSU), Minnesota (UM), Pacific Northwest (Washington, Lewis & Clark). In addition, I have been invited to Notre Dame, Washington & Lee, San Diego & Cornell. As of now, I have no appearances scheduled in LA, DC or AZ. If you are a law student at another school near one of the locations to which I have already been invited or elsewhere and would like your chapter to be included, it is not too late. I plan to do the scheduling at the end of September. Have your chapter contact me by e-mail. I am also open to invitations from chapters of the American Constitution Society or from nonlaw groups that can assure adequate turn-out.


More on (the lack of) Free Speech in Canada: Reader Kevin Germann writes:

There's worse than the police seizing satellite dishes.

A conservative group is currently in criminal court for running an ad against an election "gag" law.

This is simply unbelievable in a democracy. Simply running an ad advocating a position on a law has gotten them into a criminal court.

I hadn't heard about this case before, but it sounds very bad, indeed.


The trade in antiquities: Frederick Schultz, dealer in antiquities, just started his 33 month jail term. He was sentenced for conspiring to receive antiquities claimed by a foreign government, in this case Egypt.

This has been an earthquake of sorts for the American trade in antiquities, it is an open secret that most of the material is assembled against various foreign laws. Previously the American law was applied only to thefts from museums, churches, private homes, and the like, now for the first time it is being applied to thefts from archaeological sites. Dealers suddenly wonder whether they can stay in business. Observers wonder what is the difference between licit and illicit antiquities dealers, given how much of the material comes from sites.

This is a tough case for me. My core libertarian instincts suggest that individuals, or contractual combinations of individuals (e.g., corporations), are the holders of property rights. But say someone comes across a previously undiscovered archaeological site, do they really have the right to disassemble a temple and run away with the best items in their pockets? This seems outright wrong to most people.

To make it trickier, if the stolen goods don't make their way to America, they will probably end up somewhere else. There is little doubt that Americans do a better job of preserving antiquities than do most people, wealthy private collectors want to maintain the value of their investments. So we can ban the trade, and cut back on some theft, and feel we are doing the right thing, but many of the same items still will disappear to other locales and meet perhaps a worse long-term fate.

Here is an amicus brief against Schultz, from the Archaeological Institute of America. I'm still trying to work out a good solution to this one.

Wednesday, September 03, 2003


Dr. Laura and Humility: Dr. Laura, I've just discovered, has given up the Orthodox Judaism she adopted several years back. She still considers herself Jewish, but will no longer observe Judaism's tenets.

I've listened to Dr. Laura's show on occasion, and found that she is a very clever woman who typically dispenses very sound advice. Her purported anti-gay bias is overblown to say the least. Before that controversy erupted, I heard her berate a caller for acting unkindly toward a homosexual relative. Dr. Laura said something along that lines of although homosexual acts are a sin, homosexuals as individuals must be treated with respect, just as we treat with respect people who violate the Sabbath, don't honor their parents, and engage in other sins. This certainly didn't sound to me like the attitude of a gay-basher.

But one thing that's always bothered me about Dr. Laura is the way she pounces on callers who tell her they don't believe in God. She goes on and on about the importance of raising God-fearing children, and of having God in one's own life, as if one can simply persuade oneself to believe in God when one doesn't. Dr. Laura has now lost her faith, if not in God then in the view of God she had adopted. She apparently could not follow her own advice and just will herself to believe.

Similarly, Dr. Laura is very big on following through on one's commitments, on integrity. Callers racked with emotional turmoil call her, and she tells them they must fulfill their obligations, regardless of their "feelings." Because, she says, it's all about integrity, not feelings. Yet Dr. Laura has now broken her own commitment to Orthodox Judaism, a commitment to God Himself to follow the commandments. Why? Because of her feelings. ("I felt that I was putting out a tremendous amount toward that mission, that end, and not feeling return, not feeling connected, not feeling that inspired.")

Of course, Dr. Laura has every right to follow whatever religious worldview she desires. But there is certainly some hypocrisy in involved in her decision, in her not living up to the standards she attempts to impose on her callers.

Dr. Laura's brilliance has always been accompanied by a lack of humility, a lack of appreciation for human weakness. Perhaps her realization that she was not able to follow the advice she so tartly dispenses will change that for the better. A Dr. Laura with humility would be a truly formidable force.

UPDATE: This was not my primary point, but for those interested in the case against Dr. Laura on the gay issue, you can find it here. The most serious charge is that she apparently has associated male homosexuality with a higher rate of paedophilia. On the other hand, I recall a caller asking Dr. Laura what to do about the fact that she found out that her kid's teachers was gay, and Dr. Laura replied that it was none of her business, to butt out. So she's no Anita Bryant. Dr. Laura would also occasionally affectionately talk about a gay friend of hers. And the "Stop Dr. Laura" movement, or at least it's web presence, doesn't exactly give the other side a fair shake, as this link attests, implying that Dr. Laura shares virulently antigay views she has never expressed. I think Dr. Laura stands accused primarily of using insensitive language ("biological error") and holding a view, widely shared by those with the traditionalist religious viewpoint she expressed until recently, of the immorality of homosexual activity. To be clear, I don't share her religious views, and I wouldn't say there is no reason for concern about her views. But her public image in a large part of my social circle (none of whom have ever listened to her show) is that of a virulently antigay commentator, someone who has made her loathing of homosexuals clear. And that's why I say that her purported antigay bias is overblown.


Libertarians and Israel: Libertarians, especially those who would identify themselves as "left libertarians" (a shrinking minority) often have what can only be described as an irrational hostility toward Israel, a hostility that causes them to say some rather odd things. For example, one will sometimes read libertarian articles criticizing pre-State of Israel Zionists for buying the land they settled on from absentee landowners because it led to the displacement of Arab peasants. Not nice for the peasants, perhaps, but buying land from its legal owners is hardly usually considered a libertarian sin. Libertarians will also sometimes criticize the Zionists for settling in Palestine to begin with, even though they support free immigration in all other contexts. The rationale: the Zionists settled "Arab land." That's a libertarian perspective? Clearly not.

Ilana Mercer has authored a WorldNetDaily column attacking "libertarians who loathe Israel." Unfortunately, she weakens her critique by implicitly and without cause linking libertarian Sheldon Richman with the Holocaust-denying Instiute for Historical Review. [UPDATE: Here is Sheldon's response.]

She didn't need this slur to make her point. I've known Sheldon for years, and like him, and most of his work, very much. But I think his views on Israel are ill-informed and just plain wrong. For example, he bought hook, line, and sinker the false Palestinian blood libel regarding the Israeli Defense Forces' purported massacre in Jenin, credulously spreading myths about the "destruction of that refugee camp, the murder of Palestinians of all ages," all conclusively shown to be without basis (acknowledged eventually even by the Israel-hating UN), and strongly rebutted in the Israeli press at the time. His article on Jenin surprisingly remains on the Future of Freedom Foundation website, uncorrected.

In the same article, Sheldon repeats the myth (based, he says, on the musings of his Orthodox grandfather) that relations between Arabs and Jews in Palestine were just dandy before Zionism. Bernard Lewis's work has demolished that myth long ago, showing that Arab and Muslim anti-Semitism well predates the modern era.

To be sure, I don't think libertarian hostility to Israel is (usually) a product of anti-Semitism (and certainly isn't in Sheldon's case), but instead is related to the propensity of certain libertarians to accept the Left's perspective on foreign policy. Murray Rothbard's followers, for example, against all evidence used to blame the Cold War entirely on the U.S. Similarly, some libertarians have mimicked the left's view of the Zionist enterprise as racist colonialism. Libertarians also are instinctively mistrustful of Israel's desire to be a Jewish state, which is certainly unlibertarian, at least in the abstract. But it's not like there weren't some very good non-chauvinistic reasons for Jews in the middle of the 20th century to demand a state of their own.

In any event, an objective libertarian perspective would necessarily recognize that whatever Israel's flaws, and there are many, Israel is head and shoulders above its Arab adversaries with regard to the types of issues libertarians usually care most about: respect for the rule of law, protection of civil liberties, and development of free markets.

UPDATE: My friend David Beito responds with the suggestion that most libertarian critics of Israel are just against foreign aid to Israel, as they would be against foreign aid in general under almost any circumstances. I don't have a problem with that, and I'm not at all convinced myself that the aid the U.S. gives Israel has overall benefitted either nation. However, there is a libertarian minority that despises Israel apart from the aid issue, and questions its very legitimacy in a way that it does not question the legitimacy of other states, including by using, as I noted above, anti-libertarian arguments against Israel. I have no way of measuring what percentage of libertarians hold such views, but I do know that the situation was bad enough in the late 1970s that Robert Nozick felt the need to give a talk at the Libertarian Party's national convention gently but firmly (as I recall) pointing out the unreasonableness of some of Israel's libertarian critics. I read a transcript of this talk about fifteen years ago in an obscure libertarian magazine, and unfortunately cannot provide a citation.


Stu's Views today:


My Defense of the Written Constitution: Due to the holiday, some readers may have missed the third installment of my defense of originalism and the written Constitution that responds to questions raised by a reader and by drug policy expert Mark Kleiman. Here are the three links: first, second, and the most recent third post.


Vacation: Dan Gifford passes along the following, from a writer friend living in Paris:
"The French people are blaming the government, because all the ministers were on vacation during the heat wave. The government blamed the people, because everyone went on vacation and left the old folks at home. So the real culprit is . . . vacation. This fall the French are all going on strike to demand more vacation."
I'm sure the matter is a bit more complex than that, but it still seemed like an interesting perspective.


Trademark lawsuit hits African nation.


Freedom of Speech in Canada: Another disturbing report on the state of freedom of speech in Canada, courtesy of Marni Soupcoff. While satellite dishes are popping up all over Iraq, ones that get American t.v. channels are illegal in Canada!


Demon Beast Invasion no. 2: The reference library just got me a copy of this comic book, which was found to be obscene by Texas courts in Castillo v. State (see here for my earlier discussion).

     I'm happy to report that the comic book is indeed mostly graphic sex. There does seem to be a leavening of story, and I should acknowledge up front that I haven't read the other issues, so there's something of the story that I'm doubtless missing -- but it is indeed mostly sex with a bit of story rather than the other way around.

     I say I'm happy to report this because if things were otherwise -- if the comic book had relatively little sex in it, or if the sex wasn't as graphic, then this case would look like a broadening of traditional obscenity law. As it is, though, it seems to be mostly an application of traditional obscenity law, which does allow the punishment of graphically sexual material.

     I generally don't support obscenity law, or the obscenity exception to the First Amendment that allows obscenity law to exist. I also can't say "this decision is clearly right under existing law," because the obscenity test is so vague that in many cases it's very hard to judge whether the material really does appeal to the prurient interest in sex (as opposed to a normal interest in sex), whether it's patently offensive under community standards, and whether it has serious scientific, literary, artistic, or political value. The obscenity test's vagueness is one reason that I don't like it. But it does seem to me that the decision here is within the mainstream of traditional obscenity law, rather than a stretch that suggests that courts are developing a special and more restrictive rule for comic books than the one applicable to magazines, movies, and so on.


Mouse cleaning: My sense is that a lot of computer mice (mouses?) don't get cleaned as often as they should be; the symptom is that the mouse doesn't do a very good job of getting the pointer where you want it to go -- you roll the mouse, and the pointer doesn't move as far as you'd like, or quite in the direction that you'd like.

     My solution to that is a bit of mouse cleaning: I open the little compartment at the bottom of the mouse that contains the trackball; I remove the ball; I clean the streak of accumulated grime that tends to circle the equators of the long thin cylinders that actually sense the ball's movement; and then I replace the trackball and container cover, and close the cover. I usually use a paper clip to clean the cylinders, or sometimes my fingers. It's worked very well for me.

     Of course, this might not work on all mice, and it might even damage some mice, especially if you do it wrong. (I suppose there also might be a conceivable risk of electric shock, though I have no reason to think that this would indeed happen, since there don't seem to be any electric connections directly to those rollers.) So be warned: This is an experiment and an adventure, and if you really value your mouse (or your life!), you might want to check first with your tech support people. But I'm a reckless guy who likes the feeling of false control over technology that this technique gives me, and I think that in any event it was my tech support people who told me how to do this.

     I expect that many of you know about this already; but in case you don't, I thought I'd pass it along.

UPDATE: I got a flood of messages suggesting that I get an optical mouse instead; such mice, I'm told, are pretty much as cheap as ordinary ones. Sounds like a good idea, but the fact remains that most offices in which I've visited don't yet have them, and most office workers aren't likely to just go and get the optical mice on their own (even if the hassle of getting a new mouse is quickly exceeded by the cleaning hassle and other hassle that it saves).


The fracturing of the West A transcript of an Australian forum, with the ever-interesting Victor Davis Hanson, also Owen Harries, Paul Kelly, and Pramit Pal Chaudhuri. Read this one, most of all Hanson's remarks, first click on the link here, then you need to scroll down a bit and click on another link to get there.

Addendum: A reader named Tony gives a more direct link.


You Can't Say That! I recently received a prepublication review copy of my forthcoming book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws. It's always exciting to see one's work in final form. And the blurbs are great:
"In America, we must carefully censor our speech as rules and laws stifle the most benign utterances. Bernstein illustrates the very real threat to the First Amendment and our civil liberties from increasingly absurd restrictions on free expresion." --Catherine Crier, Court TV, and Author of The Case Against Lawyers

"A must-read for anyone--left, right, or elsewhere, who seriously cares about liberty in America." --Eugene Volokh, Professor of Law, UCLA, and Author of The First Amendment: Problems, Cases and Policy Arguments[written before our co-blogging commenced, thanks Eugene!]

"This book raises important and troubling issues about the erosion of civil liberties and shows how the guarantees of these liberties in the First Amendment have been repeatedly set aside when they conflict with antidiscrimination laws. Those who treasure civil liberties must read this book. --Diane Ravitch, Author of The Language Police

"An important warning that the constitutional freedoms Americans hold most dear are threatened by the insidious influence of authoritarian busybodies who want to regulate every aspect of American life in furtherance of a radical, tyrannical egalitarian agenda." --Walter Williams, Former chairman of the Department of Economics, George Mason University, and syndicated Columnist

"The tension between antidiscriminaton laws and civil liberties, such as free expression, privacy, and personal autonomy, is one of the most important and least explored challegnes to individual freedom of our age. In this impassioned book, David Bernstein makes the libertarian case for vigorously defending freedom against the demands of leaglized egalitarianism." --Jeffrey Rosen, Legal Affairs Editor, The New Republic and Author of The Unwanted Gaze

The book is due out October 1.


Hotel Room Smell: Several readers inform me (isn't the Internet amazing?) that the not quite urine smell I've been noticing lately in hotel rooms is most likely mold, perhaps spread by vacuum cleaners stored in humid conditions (makes sense for my recent experiences in humid Orlando and Tel Aviv). Hotel managers of the world: this is a relatively easy problem to take care of!


When is killing a leader counterproductive? Israel has expressed a renewed desire to go after Hamas leadership.

I also have wondered whether the bombing of the Shiites in Iraq could hurt the terrorist cause. Glenn Reynolds of Instapundit asks the same question. True, a moderate leader is dead, but won’t others spring up to take his place? After all, we often fear that killing terrorists just creates new converts, as I noted a few days ago. Plus we heard that even Saddam, or a Saddam impersonator, felt a need to distance himself from the bombing.

Some readers have suggested the following hypothesis:

“Killing violent leaders breeds more violent followers (and subsequently more violent leaders), because violence begets violence. But killing peaceful leaders just scares off other, potential future peaceful leaders.”

This is possible, but Martin Luther King and Jesus are possible counterexamples. The British did not seem to feel that killing Gandhi would have solved their problems. And clearly numerous violent movements have lost their major leaders and never recovered, the death of Hitler did not help his cause. So I don’t see overwhelming evidence for the above hypothesis.

What else might determine whether killing a leader harms or hurts a cause?

Many people fear that executing Paul Hill, who shot an abortion practitioner and his bodyguard in Florida, will only encourage others to follow in his path, read here.

Perhaps some causes lack focal leaders, namely individuals recognized as standing for the movement. Al Qaeda already has a focal leader, namely bin Laden, killing more al Qaeda members won’t give them something they don’t already have. The anti-abortion cause does not have a focal leader in the same way, so executing Paul Hill might create a dangerous martyrdom. I couldn’t judge how Hamas stands in this regard.

Now did the “Shiite, moderate, accept-the-US-presence-in-Iraq” position already have a focal leader? Not that I am aware of. So perhaps some good can come of the recent assassination.


The next financial scandal? Robert Samuelson, one of my favorite columnists, offers this very good short piece on Fannie Mae and Freddie Mac. Their combined debt, as of 2002, was $1.5 trillion, almost half of the federal debt. To date they have been profitable, but taxpayers are expected to cover their (implicilty guaranteed) debts, should they experience problems. It is frequently charged that their portfolios would be vulnerable to extreme interest rate swings. Samuelson doesn't predict a crisis, but he does send up a flag of caution. It is hardly reassuring that the top management at Freddie Mac had to quit for falsely reporting earnings.


More on Pipes and Campus Watch: I would love to respond in more detail to Jacob's post on Campus Watch, but I tried, and Blogger ate it (twice!), and I don't have the will to recreate my posts. Suffice to say that Jacob is right that Campus Watch was very clumsy in the beginning (I wasn't really following the controversy at the time). However, the organization's current website seems free from these sorts of errors, and much of the continuing criticism of Campus Watch and Pipes comes from whiny leftists who seem to believe that their utter domination of various academic disciplines should be subject to no outside criticism.

In contrast to Jacob's measured and scholarly criticisms, others are perfectly willing to smear Pipes to make their point. For example, compare what Pipes actually says in one article ("Of course, professors have every right to express their opinions, however cranky and mistaken."), to how very prominent leftist historian Eric Foner spins that article: "Pipes' call for outsiders to police the statements of faculty conjures up memories of World War I and the McCarthy era, when critics of the government were jailed and institutions of higher learning dismissed antiwar or 'subversive' professors.... What did we say to inspire Pipes to advocate the abrogation of faculty members' right to express their views if they happen to differ with his?

Is Pipes occasionally sloppy or hyperbolic? Yes. (Indeed, it was some sloppy, ambiguous language that Foner seized on to try to make Pipes out as the second coming of Joe McCarthy.) But he also was among the few voices pointing out the dangers militant Islam posed to American security before 9/11, and has generally had a much more clearheaded view of the situation in the Middle East than those "experts" ensconced in academia who question his scholarly acumen. He's something of a streetfighter, who ignores the polite norms of academia. But that's not always a bad thing; it wasn't polite, after all, when the child pointed out that the emporer had no clothes. It's hard to imagine that the world of Middle Eastern Studies would be better off without his critical voice.

Tuesday, September 02, 2003


Bye bye Just got back from seeing Bend It Like Beckham -- destined to become this year's My Big Fat Greek Wedding, with all the positives and negatives that title confers.

Back to my home base. Please be sure to check out my recently enhanced home for the blog!


Homosexuality and child molestation: Iain Murray, whom I trust a great deal on statistical questions, has some interesting thoughts on the subject.


Memo to Bill Keller: Stop the madness on China!! A few days ago I ranted about the New York Times' awful use of historical analogy in its analysis of Chinese behavior. Alas, they're at it again in today's Business section:

China passed Japan last year as the country with the largest trade surplus with the United States, at $103 billion. That has made it a prime target for producers of textiles, auto parts and other ailing industries, which say China is stealing their business by currency manipulation.

The situation is reminiscent of economic tensions with Japan in the 1980's. China today and Japan then had rapidly growing trade surpluses and currencies that many analysts said were kept artificially cheap to promote exports.

Yes, the situations are exactly the same -- except for the following:

1) China is receptive to foreign direct investment -- Japan was not [Be fair, the Times article says this a few grafs down--ed. It's kind of an important difference, though.]

2) Japan had been a member of GATT for two decades prior to trade surpluses becoming a problem -- China is only now beginning to implement its WTO obligations.

3) Japan's exports are home-grown -- many of China's exports are goods reprocessed from other countries first, which inflates its bilateral trade surplus.

4) Japan was running massive current account (i.e., balance of trade) surpluses -- on order of 5% of GDP -- during the eighties. China's current account surplus is half this level -- in part because it runs a trade deficit with the rest of the world.

Bruce Bartlett has a Washington Times op-ed that explains the U.S.-China economic relationship far better than the NYT:

China is not running a trade policy aimed at subsidizing exports or keeping out imports; otherwise, it would be running a surplus with everyone. As a recent Federal Reserve Bank of Cleveland study concluded, "China has the largest surplus of any country in its bilateral trade with the United States, not because its market is closed but largely because it has emerged as a major global production base for labor-intensive manufactured goods."
The Fed study goes on to note that most of our imports from China have not displaced domestic manufacturing but rather have displaced imports from other Asian countries. For example, it notes that our imports of footwear from China previously came from Taiwan and Korea, and many of the toys and games we import from China were imported from Hong Kong in the past.
Further evidence Chinese goods are not replacing domestic production comes from the foreign direct investment data published by the Commerce Department. The latest figures in the July Survey of Current Business show China is far from the magnet for U.S. investment many imagine it to be. At the end of 2002, U.S. companies had just $10.3 billion invested in China, a decline of $1 billion from the year before. By contrast, American companies had $255 billion invested in Britain, $152 billion in Canada and $145 billion in the Netherlands.

For another excellent analysis of the Sino-American economic relationship, click here.

Bill Keller, I beg you -- please call a temporary moratorium on historical analogies when discussing China.


Waiting for Wesley Clark Over the past few weeks, a certain slice of Democrats -- you know, the ones who take national security seriously and want to win the 2004 presidency -- have been pining for Wesley Clark to enter the race.

To feed this angst further, The New Republic is currently having an online debate between Franklin Foer and Noam Scheiber on the relative merits of a Clark campaign. Here's Foer:

No matter how much Dean tries to prove that he has some hawkish impulses, his fiery antiwar rhetoric has caused me to doubt whether he would have overcome his own instincts and attacked the Taliban after September 11. With Clark, I have no such worries.

The political case for nominating Clark is inseparable from the biographical case. While Howard Dean skipped the war with a doctor's note, skiing away in Aspen, Clark went to Vietnam, where he was wounded four times and received a Silver Star. Where Bush partied his way through college, Clark finished top of his class at West Point, won a Rhodes, and took a White House fellowship. And unlike Clinton, his fellow Arkansan meritocrat, he had the discipline to thrive within a large organization. By all accounts, he ascended in the military because of visionary qualities. He was one of the first officers to talk about the complexities of modern military life. Where his colleagues were still worrying over the implications of shined boots and cleaned barracks on morale, Clark brought issues like low pay, teenage suicide, and spousal abuse to the fore. In the '80s, he pushed for the Army to use new management techniques that injected a measure of introspection, decentralization, and accountability into the command structure. As a strategist, he understood before almost anyone the limits of air campaigns and the importance of boots on the ground.

Scheiber is more skeptical:

The gist of your case is that the former NATO supreme commander would be a highly competitive opponent to George W. Bush in next fall's election. Maybe. But so would Colin Powell or John McCain or Rudy Giuliani--or any number of moderates with national security bona fides. The problem is that none of these guys could win the Democratic nomination. Particularly not at this late stage in the primary campaign....

In the end, I think the historical analogy that's most apt here isn't Dwight Eisenhower, as so many Clark supporters suggest. It's to Bob Graham. Graham's resume read like a dream before he became a candidate: He was a moderate Democrat from an important Southern state. He had impeccable foreign policy credentials, having most recently chaired the Senate Intelligence Committee. And, like Clark, he'd opposed the war in Iraq because he thought it would set back the war on terror, which he's ceaselessly attacked the Bush administration on from the right. But the luster faded from Graham's candidacy almost as soon as he got in the race--because he turned out to be a disaster of a campaigner and because many of his foreign policy pronouncements proved to be eccentric at best, and occasionally incoherent.

So, instead of answering your question, let me ask you one of my own: Isn't there at least a little bit of Bob Graham in Wesley Clark?

Read the whole thing.


A bit more about homosexuals and child molestation: I just wanted to clarify something that I tried to make clear in my earlier post on this subject. I was considering the argument that public schools should refuse to hire known male homosexuals because male homosexuals are more likely to molest boy students than male heterosexuals are to molest girl students. To determine whether this proposal is factually well-founded (setting aside whether there are any other moral objections to it), we have to essentially figure out whether a man who has sex with adult men is more likely than a man who has sex with adult women to molest students. (The "with adult men" qualifier is needed because the question will only come up when the school officials run across a male applicant who is known to have sex with adult men; if the applicant is known to have sex with young boys, then of course they'd be calling the police about him, not just refusing to hire him.)

     This means that it's not enough to show that a disproportionate number of students who are molested by male teachers are prepubescent boys, unless one can also show that those male teachers are also generally homosexual -- that when they have sex with adults, they do it with men rather than women. It might seem obvious that only a homosexual man would molest a boy, but I don't see why this is so. Most heterosexual men aren't even attracted to prepubescent girls; the thing that makes prepubescent girls attractive to child molesters seems to be quite different from the thing that makes postpubescent females attractive to normal heterosexual males. (I realize that normal heterosexual males should stay away from postpubescent 14-year-old girls as well as from prepubescent 10-year-old girls -- but physically, I suspect that most heterosexual males may find 14-year-old girls sexually attractive, even if they know they shouldn't have sex with them, but won't find 10-year-old girls sexually attractive.) Because of this, I'm not at all confident that the thing that makes prepubescent boys sexually attractive to some men is much related to what makes postpubescent males sexually attractive to some homosexuals. I'd thus find it quite plausible that many people who molest prepubescent boys are actually heterosexual when it comes to adult sexual relationships, rather than homosexual.

     So, again, I'm looking to see whether there's real evidence that known male homosexuals -- which will nearly always be men who are known to have sex with adult males -- are more likely to molest children (boys or girls) than known male heterosexuals (men who are known to have sex with adult females) are to molest children (also boys or girls). If there's evidence of that (or evidence to the contrary), I'd love to see it. Likewise, if there's evidence that a disproportionate number of, say, 15- or 16-year-old victims of statutory rape are males who had sex with other males, that would also be probative, since I'd assume that a man who likes to have sex with postpubescent boys is also likely to want to have sex with adult males (though I may be wrong on that).

     But if the evidence is simply that a disproportionate number of prepubescent kids who are molested by men were boys, that wouldn't be particularly helpful by itself, I think. I think we'd also then need evidence that these prepubescent boys were molested by people who appear to be male homosexuals (which means they are male homosexuals in their visible relationships with adults), rather than by people who appear to be male heterosexuals (which means they are male heterosexuals in their visible relationships with adults).


Department of Education and Speech Codes: While I was away, National Review Online published my oped on the Department of Education's renunciation of its previous support for university speech codes. Unlike the Washington Times version I linked to previously, NRO's version has paragraph breaks.

UPDATE: In the NRO piece, I mock the University of Maryland's stated sexual harassment guidelines. The guidelines have been slightly updated of late, and the relevant website now states that "[t]his manual is for training and informational use only and does not reflect the current policy of the University of Maryland."


Massachusetts: Just arrived this morning in the Boston area; I'll be teaching Free Speech Law and a seminar on Thorny Problems of Free Speech Law this Fall at Harvard. I'm much looking forward to classes starting.

     Please note, though, that I'm swamped enough that -- as our e-mail policy warned -- I'm finding myself unable to respond to many of the messages that I get. My apologies, but this slacking on my part is unfortunately necessary, if I'm to get any paying work done.


Good work, ISI books: I e-mailed them about my post that pointed out some problems with the blurbs for one of their books, and they promptly responded to say that they've just corrected their page. Well done!


Pipes and Campus Watch: David B., below, points to the genuine biases of Middle Eastern studies and infers that Daniel Pipes' Campus Watch was an appropriate response. I've written at some length about the problems with Campus Watch. Unlike work Pipes' colleague Martin Kramer, I think Pipes is often sloppy and sometimes careless with the truth; and Campus Watch does him no credit.

See posts here, here, here, here, and here.


Do tough anti-spam penalties work? Yes, according to some recent evidence from South Korea. Today's Washington Times reports:

"The new laws, enacted in July, require online marketers in South Korea to flag their e-mails as advertisements and set up a free telephone hot line so people can opt out of future e-mails. The laws also forbid marketers from scanning Web sites for e-mail addresses.
Marketers who don't comply face fines up to $853,000."

It is believed that spam has fallen 20 percent, and pornographic spam has fallen 27 percent, since the new law (this may be pure coincidence but I will note that I have stopped receiving Korean spam, which I used to get every night). Whether Korean spammers will adapt, however, remains to be seen. And the article notes that South Korea has no free speech amendment in its constitution, which makes the law easier to uphold.


If I'm at Volokh, I must be blogging about North Korea Hi, my name is Dan Drezner, and I'll be your guest-blogger for the rest of today.

For some reason, whenever I blog here I wind up discussing the North Korea situation, so let's continue the trend.

Two weeks ago, I praised the Bush administration for getting all of the other players in the region on the same page in the run-up to the talks. Does this still hold in the wake of those negotiations?

Signals are very mixed. If this story is any indication, China is not exactly on board:

Reiterating its earlier statement that US is the main problem in resolving the North Korean nuclear crisis, China on Tuesday said that the next round of talks should focus on clarifying "the negative policy" of the United States towards Pyongyang.

"In the six-way talks, and actually before the talks, the antagonism between the DPRK (North Korea) and the US was serious," Foreign ministry spokesman Kong Quan said.

During the talks held last week in Beijing, North Korea repeated on many occasions that it felt threatened by the US and that "the negative policy of the US was a big obstruction", he said.

"How the US is threatening the DPRK, this needs to be further discussed in the next round of talks, especially between the US and the DPRK," Kong said.

On the other hand, it's possible that China is deploying this kind of rhetoric to steer North Korea back to the negotiating table. Here's today's Financial Times:

North Korea yesterday retreated from a threat to withdraw from dialogue about its nuclear weapons programme, saying it remained committed to the diplomatic process.

The comments revived hopes that a second six-party conference will follow last week's talks in Beijing between the US, the Koreas, China, Japan and Russia.

On Saturday, Pyongyang had declared the talks a failure, saying that it was not interested in more. But the communist state's official mouthpiece struck a more positive tone yesterday - underlining the unpredictability of North Korea's behaviour and the difficulty of interpreting its rhetoric.

China's rhetoric and North Korea's reversal might be unconnected -- but I doubt it.



What they're saying: (UPDATE: I e-mailed ISI Books about this post, and they promptly e-mailed me back to say that they corrected the problem in response to my message -- good work on their part!)

ISI Books, which is run by the Intercollegiate Studies Institute, published a book called Choosing the Right College 2004: The Whole Truth about America's Top Schools (Jeremy Beer, editor-in-chief). The ISI Web page about the book offers many great blurbs, from the likes of Thomas Sowell, Laura Schlessinger, and Christina Hoff Sommers -- and in fact it might be a great book. Unfortunately, the very first blurb, right under the bold section heading "What they're saying . . .":
"[T]he inside scoop."
New York Times, Education Supplement
leaves out a pretty important point -- the entire quote from the New York Times item (Aug. 3, 2003) actually reads:
"This is not a how-to-get-in book," says Jeremy Beer, editor in chief. "Nor is it a statistical compendium. Nor is it a ranking book. We're the inside scoop."
Yup, the "they" here actually seems to be the New York Times quoting the editor in chief of the book. And the remainder of the brief discussion of the article isn't terribly flattering:
Warning students up front about the dangers of "intellectual relativism" and professors who "confuse education with indoctrination," the guide, from the Intercollegiate Studies Institute, pursues what Mr. Beer calls a "fairly unabashedly anecdotal methodology" to encapsulate academic, political and student life on more than 100 campuses. Its mantra is displayed prominently on the cover, promising to provide "the whole truth about America's top schools."

One thing it leaves out is the truth about the institute. The group's principles -- "individual liberty, personal responsibility, free enterprise and Judeo-Christian moral standards" -- are explained clearly enough on its Web site. But they are not in the book, leaving readers to surmise on their own the meaning of an introduction by William J. Bennett, an obvious distaste for academic departments that offer courses like "Taking Marx Seriously" and applause for the abandonment of minority programs. Mr. Beer says readers should be able to figure out the group's perspectives, but the next edition, due this month, will make its stance clearer.
It may well be that the Times' potshots at the book aren't very fair -- perhaps readers should indeed be expected to figure out the group's perspectives -- but it does suggests that the favorable views of the book aren't the Times' views or even a Times reviewer's views, but only the views of the book's own editor.

     And there's actually another example of this in the same set of blurbs: The third blurb (right after the first Times blurb and the Thomas Sowell blurb) says:
"Choosing the Right College is aimed at exposing the political biases of academe, the prevalence of permissive sex and the lack of core curriculums to prospective students and their parents."
New York Times
That is a nearly literal quote from a Times article on Sept. 6, 1998, which discusses an earlier edition of the book:
The book, called "Choosing the Right College," is aimed, its editors say, at exposing the political biases of academe, the prevalence of permissive sex and the lack of core curriculums to prospective students and their parents.
Again, the statement is a characterization of what the book's editors say, and not the Times' own description of the book. The phrase "its editors say" is omitted, without an ellipsis, though I think that even if the ellipsis were included, I don't think it would be quite right to attribute this just to the New York Times, since the Times is paraphrasing the book's own editors.

     Here, the problem may be less serious -- while "the inside scoop" is a term of praise, the description of the book is more objective, and probably not terribly controversial. One might therefore infer that the Times was more or less endorsing the editors' self-description.

     Still, I'm not quite sure that it's proper to list it under "What they say . . .," with the "they" being identified as the New York Times. Presumably ISI Books is including the blurb because it wants to portray the blurb as praise from the newspaper -- I therefore think it would have been more proper (even within the obviously self-promoting medium of the blurb) to make clear that the Times was paraphrasing the views of the book's editors and specifically tagging them as the views of the book's editor ("its editors say"), rather than suggesting that it was setting forth the opinion of the Times or a Times reviewer. And I'm quite sure that this is so as to the "inside scoop" blurb.


Making Mistakes about MEChA: Ted Barlow claims the Bustamante-MEChA controversy is a "bullsh*t story." He may be right, but he seems a bit too eager to prove his case -- and the result is some sloppy debunking.

Let's take one example: Barlow alleges he "couldn’t find a MEChA site which used" the phrase "For the Race, Everything. For Those Outside the Race, Nothing,” and links to his Google search to prove it. The search does not pull up MEChA chapter sites, but it does find lots of conservative commentary attacking the group and Bustamante. Case closed, right? Not quite.

The problem is that Barlow did his search in English, when the slogan typically appears in Spanish: "For La Raza todo. Fuera de La Raza nada." Googling the slogan in Spanish finds the same conservative commentaries, but also quite a few MEChA chapter websites that have posted "El Plan Espiritual de Aztlan," the source of the controversial slogan, including chapters at Michigan, Berkeley, and UC Irvine, among others. To paraphrase Barlow, on the one hand you have the actual websites of MEChA chapters, on the other you have some fairly sloppy debunking.

In Barlow's defense, he does note the source of the phrase and that the document is "prominently linked by several MEChA chapters," but he provides little insight as to the origins of the document in question. Moreover, the document is more than "linked" by MEChA sites, it is actually posted by MEChA chapters, including this one at San Jose State to which Barlow links.

Why do all these MEChA sites post "El Plan Espiritual de Aztlan"? Perhaps because it was a statement of principles adopted at the 1969 National Chicano Youth Liberation Conference, out of which MEChA was born. It is part of "the essential philosophy of MEChA," according to the University of Arizona chapter, and is one formulation of the group's organizing principles. Whether or not the infamous phrase is the "official" slogan of MEChA or not, it is certainly reasonable to view it as part of the association's creed.

There are other problems in Barlow's account. For instance, he repeats the claim that MEChA has no national structure or constitution. Yet this purports to be the national MEChA constitution, adopted at a MEChA national conference (and the same document can be found on other MEChA sites, such as this one). I don't know about the "standard" practices of MEChA chapters, but there clearly is coordination. For instance, "Berkeley MEChA is a nationally recognized chapter of the Alta Califas Norte MEChA Region and the Tlatokan Ameyal MEChA Central," and notes that it participates in various regional and national conferences. Another chapter explains that MEChA has been national since 1969.

There may be other errors in Barlow's account. I don't know. I spent no more than fifteen minutes finding the ones above, and now I have to get back to work. My point is that Barlow's bloster outstrips the substance of his post. Again, Barlow may be correct that the Bustamante-MEChA story is overblown, but if he wants to make the case, he should get his facts straight first.


Taxpayers and the Ten Commandments: A correspondent writes:
If the taxpayers of Alabama -- which include Christians, Jews, Muslims, Sikhs,
Hindus, Jains, Buddhists, atheists, agnostics, etc. -- pay for a public courthouse, can they not expect that the First Amendment will protect them from having any religious texts displayed in that a building? Is that not what the Constitution writers had in mind when they said Congress should pass no laws with respect to establishment of religion? That in our public life, where people of many different creeds and none at all pool their money for the common good, we should not promote any particular religious viewpoint in conducting our public business?
     This is an interesting argument, and it may capture part of the issue here. But it seems to me incomplete, because it doesn't explain just what's wrong with a Sikh's money being taken to express a Christian or Jewish religious document. After all, the Constitution generally allows the government to use racists' money to express anti-racist messages, marijuana enthusiasts' money to express anti-marijuana messages, or pacifists' money to express pro-war messages. Some radical libertarians may argue that even this should be unconstitutional, or at least that it is unjust -- but that's not the view of either the legal system, or, I think, of most Americans.

     To make this argument work, one then has to explain how government religious expression is different than government ideological expression. One possible explanation is that the government has less need to take a stand on religious issues than on secular issues; another is that using people's money to express religious views with which they disagree is more socially divisive than using people's money to express political views with which they disagree. Both these explanations, I think, have some merit, and I think they can indeed support a different rule for government speech endorsing religion as opposed to government speech endorsing ideological positions that have no inherent religious component.

     But one can also come up with some plausible counterarguments to these positions (e.g., that the government does have a need to endorse certain religions, or at least religion generally, because it will lead to more moral behavior on citizens' parts, or that government religious expression is not necessarily more socially divisive than other expression, or that having a rule prohibiting government religious expression is itself more socially divisive than the expression itself would be). It is these arguments and counterarguments, I think, that have to be at the heart of the debate, and not just a broad assertion that taxpayers ought not have to subsidize government religious expression with which they disagree: That broad assertion, if made on its own, often tends to hide the true issue (why is government religious expression different from other government expression).

     The correspondent also suggests that the Framers resolved this debate in favor of barring the government from expressing religious views when they enacted the Establishment Clause. But there are two significant problems with this historical assertion. First, the Framers' Establishment Clause of course applied, together with the rest of the Bill of Rights, only to the federal government, and not to the states -- and most of the Ten Commandments debates as best relate to the actions of state governments and their subdivisions. The proper question, if one believes that the guide to constitutional interpretation should be original meaning, is what the Ratifiers of the Fourteenth Amendment -- the Amendment that has been interpreted as applying most of the Bill of Rights to the states -- saw that Amendment as doing. Here, as I understand it, the evidence is even thinner: Though many people in the late 1860s understood the Amendment as applying much of the Bill of Rights to the states, it's not clear that they saw the Establishment Clause as being part of people's "liberty," "privileges," or "immunities" that the Amendment protected.

     Second, as best I can tell, the Framers did not view all government expressions of religious faith as an "establishment of religion," even though taxpayers indirectly subsidizes them: The familiar examples of government thanksgiving proclamations, legislative chaplains, and other public expressions of religious faith -- many of which happened within a few decades of the Framing -- are evidence of that. They're not conclusive evidence, but as best I can tell the evidence that most people of the 1790s saw the Establishment Clause as allowing federal government expression of pretty generic Christian religious faith is considerably stronger than the evidence that they saw it as forbidding such expression; and the same extends to the Ratifiers of the Fourteenth Amendment, and their view of state government practices.

     Now perhaps the Framers and Ratifiers were wrong on this score -- perhaps they should have adopted the "it's wrong for taxpayer money to be used for government religious expression" position. But I don't think one can simply assert their views as support for that position; if anything, their views somewhat undermine that position (though they may support a narrower position that's focused on preference among Christian sects). The best that people who oppose government religious expression on original meaning grounds can do, I think, is make a pretty complex argument about how the provisions set forth a principle that's broader than what the Framers themselves understood it to be -- a respectable argument that some scholars have indeed made, but one that again requires a good deal of elaboration beyond just "[this is] what the Constitution writers had in mind."

     So that's a little excursion through the original meaning, as best I can estimate it, and indirectly through the Constitution's original intention. As a matter of current constitutional law, Justice Moore was quite wrong, because the Court has indeed interpreted the Constitution as barring most governmental expressions of religious faith, and most Ten Commandments postings would indeed qualify as that. And given this, I think, that he as a judge had an obligation to follow the law, rather than to violate it as a means of pressing for changing the law. But none of this resolves whether the current constitutional law indeed matches the original meaning of the Constitution (or, of course, whether original meaning is the proper interpretation of the Constitution).


Do Judges' Writing Styles Matter? Senior Circuit Judge Silberman wants to know why Judges Rogers and Henderson both "found it necessary to author opinions" in this case released this morning by the U.S. Court of Appeals. While acknowledging a "perceptible difference" in their respective interpretations of the Federal Tort Claims Act and applicable precedent, Judge Silberman noted that both of his colleagues joined him in rejecting the government's "strained" interpretation of the Act. "I do not see any difference in their actual approaches," Judge Silberman observed, concluding:
Nor do I detect any differences between my colleagues as to their understanding of the respective spheres of Federal and state law. Therefore I do not understand why, in the interest of collegiality, one opinion could not have been fashioned. Perhaps the problem stems from my colleagues’ writing style. See generally Richard A. Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. CHI. L. REV. 1421 (1995).

(Yes, I know Howard is back, but he hasn't gotten around to posting on this case yet.)

UPDATE: Howard's now posted his own commentary on Silberman's opinion.


Homosexuals and sexual molestation: Prof. Eric Rasmusen responds to my Hindus/homosexuals post in various ways, but the most striking claim is this:
A second reason not to hire homosexuals as teachers is that it puts the fox into the chickencoop. Male homosexuals, at least, like boys and are generally promiscuous. They should not be given the opportunity to satisfy their desires.
Is there any factual foundation for a belief that male homosexuals (presumably Prof. Rasmusen is talking just about males here) are more likely to have sex with students -- whether high school, junior high schools, or elementary school -- than are male heterosexuals? Sure, I can see why people might think that someone who likes to have sex with adult men might also want to have sex with 16-year-old boys, and might also want to have sex with 8-year-old boys (though it's not necessarily clear that this is so, especially as to 8-year-olds). But likewise someone who likes to have sex with adult women might also want to have sex with 16-year-old girls, and might also want to have sex with 8-year-old girls (though again it's not necessarily clear that this is so, especially as to 8-year-olds).

     This allegation that male homosexuals are unusually likely to engage in sex crimes against children is a pretty serious charge, and it seems to me that such serious charges ought to be supported by some serious evidence (and not just by anecdotes), especially if they are to be made the basis of government decisions that may hurt the completely law-abiding. Prof. Rasmusen unfortunately didn't cite any such evidence -- can anyone point me to it? Again, I'm asking for specific pointers to specific evidence, and not just news stories about a few incidents of molestation, or general assumptions about what "everyone knows."

     Incidentally, I'm setting aside the question whether such generalizations should be an impermissible basis for government decisionmaking (either constitutionally impermissible, statutorily impermissible, or morally impermissible) even if they are factually accurate. We generally don't let the government refuse to hire people of some racial, ethnic, religious, or gender group simply because the crime rates among, say, blacks generally or males generally are considerably higher than among other groups. On the other hand, we generally do let the government discriminate in hiring based on other attributes -- such as where one went to school, how one acts in an interview, whether one has a history of crime or of drug or alcohol abuse, whether someone generally seems like a thoughtful/stable/decent person, etc. -- when we think those attributes are proxies, albeit imperfect ones, for likelihood of future behavior (good teaching, abuse of students, absenteeism, etc.). Where one's past consensual sexual behavior fits in here is an interesting question, but one that I don't want to confront here -- I just want to focus on the empirical claim that Prof. Rasmusen made.


Genetic and Environmental Influences on IQ: The Washington Post reports on a new study that suggests that IQ is highly correlated with genes, except in very poor families, where the correlation is quite low.

Monday, September 01, 2003


More on Pipes: Among the criticisms leveled at Daniel Pipes, Mideast scholar and recent controversial appointee to the U.S. Institute of Peace, is that he founded an organization called Campus Watch dedicated to monitoring and when necessary critiquing what is taught in Middle Eastern Studies Departments in the U.S. For this, Pipes should actually be praised. For example, check out this nutty article written by an assistant professor at Columbia University, responding to calls for reform of Arab nation's school curricula so that the schools no longer teach hatred of Jews and Westerners.

Besides the utter tendentiousness of the piece, and its disregard for the very real problem of Hitlerian anti-Semitism becoming the mainstream in the Arab world, this alleged Middle East expert makes some obvious mistakes. He states that in Israel "democratic process . . . only applies to Jews by law." Hmm. Tell that to the ten Arab Knesset members, elected by non-Jewish Israeli Arabs who have the right to vote, a right denied Arabs in all Arab countries. There is undoubtedly discrimination against Israeli Arabs, but by law they are equal citizens, and with the glaring exception of non-Bedouin or Druze being exempted from the draft, are generally treated as such. More nonsense from the article: ". . .the curricula of Israeli schools, wherein only the history of white European Jews is taught as the relevant history of all Jews." First, while Israeli critics have alleged that Sephardic history is underemphasized in Israeli schools, no one claims that it is completely ignored, and much of the criticism arises from the central role the Holocaust plays in Israeli education, a tragedy that mostly befell Ashkenazim. Second, the attempt to impose a primarily racial angle on to a primarily cultural (and ever-diminishing) conflict between Israelis of Middle Eastern and European origin is related to a more general cheap and silly effort by leftists to portray the Arab-Israeli conflict as one between "white" Israelis and "black" Arabs, as Nelson Mandela, an old Arafat ally, did a few months back. To do so with even a semblance of a straight face requires associating Israel with only European Jews (a bit over half of Israel's Jewish population), since Middle Eastern Jews tend to be as dark-skinned as Arabs (though even Ashkenazic Jews were attacked for their "swarthiness" by early 20th century American anti-Semites), and Israel's Ethiopian Jews are quite a few shades darker.

That an assistant (untenured) professor would write what amounts to either dishonest or ignorant propaganda for an Arab newspaper without apparent concern for his reputation and career as a scholar supports Pipes' concerns about the state of Mideast studies at even the most prestigious American universities.


Hotel Room Odors: I've stayed in two fancy hotel rooms recently, thousands of miles apart, both of which had the same unpleasant odor similar to but not exactly like stale urine. In one hotel, the Wyndham Orlando, the odor was there when I arrived seemed to be coming from the bathroom (and remained after I asked the housekeeping staff to reclean the bathroom to remove the odor), but in the other, the Intercontinental Tel Aviv, the odor seemed to come from the carpeting. I would be inclined to think that the odor was in fact urine and I was the victim of a bizarre coincidence, but for the fact that the odor in Tel Aviv wasn't there the first two nights I stayed there, and appeared on the third day after the maid tidied the room. Also, when I checked into the Intercontinental, I rejected the first room I was assigned because it had the same odor. I believe this isn't just my imagination, because my girlfriend noticed the same odor. We suspect that the hotels are using some sort of new cleaning fluid that leaves this unpleasant smell. Has anyone else had the same experience, or know of some explanation for this phenomenon?


More on free speech in Australia: I've blogged before about the threat to freedom of speech posed by antidiscrimination statutes in Canada and Australia. Here's another example:

NSW One Nation MP David Oldfield has agreed to changes on a controversial anti-Muslim website -

The Victorian Civil and Administrative Tribunal (VCAT), had earlier refused to dismiss a claim [under Victoria's Racial and Religious Tolerance Act] against him that the website linked to him vilified Muslims.

The website statement "Not all Muslims are terrorists, but nearly all terrorists are Muslims" will be now read "Most Muslims are not terrorists, but many people who profess to be Muslims are terrorists".
Oddly enough, the new statement arguably is more anti-Muslim than the original statement, which did not claim or even imply that many Muslims are terrorists, just that many terrorists are Muslim. In any event, in a liberal society the government has no business micromanaging the content of websites, and will almost inevitably abuse whatever such power it gets.

Thanks to reader Eric Scheid for the pointer.


A Polish take on the Ten Commandments My wife and I have been watching Decalogue, the ten-part Polish TV miniseries from the late 1980s, directed by Kieslowski, who did the three movies Red, White, and Blue. The Decalogue episodes are commonly considered masterpieces of world cinema. Roger Ebert offers the opening comments to this effect, or read this review, which draws comparisons to Citizen Kane and Godfather. The new DVD transfer is spectacular in quality. And the episodes are only about fifty-five minutes long a piece, it is much easier to watch one of them in an evening than to view a two-hour movie, I can get restless, wanting to get back to my reading, so this is an advantage.

We have only seen the first five but most of the episodes have legal themes, or revolve around moral dilemmas with legal implications, such as abortion. Episode five is a direct meditation on the justice of capital punishment.

Episode four is best so far: imagine holding in your hands a letter from your father that says "Open only after my death." And unlike many such presentations it doesn't paint itself into a corner with no good ending, the resolution, and its attendant ambiguities, is spectacular. I have mixed feelings about episodes two, three, and five. They are monumental within the context of the larger set but not the place to start either, there is no need to view them in order. You will love five or turn away from it. Many critics view it as a highlight of the series but personally I am tired of the capital punishment theme. Episode number one is a masterpiece though it builds slowly and reveals its importance only at the end.

Yes you can rent them, but to get the best transfers you should buy, $60 for the whole set on amazon, click on the first link, a very good investment. I'll give you an update on the next five episodes when we get to them. And if you teach Law and Cinema, these are a must.

Sunday, August 31, 2003


Another column by VDH: Hoping We Fail: Hoping We Fail: Who loses and who wins in the high-stakes poker in Iraq?

It is not hard to determine who wishes the United States to succeed in rebuilding Iraq along lines that will promote consensual government, personal freedom, and economic vitality: Hardly anyone. At least, few other than the Iraqi and American people. . . .


Put it in the constitution? Opponents of gay marriage, or abortion, or proponents of a balanced budget, have argued in favor of constitutional amendments to promoted their favored views. Eric Rasmusen draws our attention to the Alabama Constitution, which has been amended 742 times since 1901, yes the link lists the amendments. Many state constitutions are long, this one is extreme. Rasmusen, a highly respected economist (who also blogs about many non-economic topics, most of all religion), tells us "there must be something fundamentally wrong [with the Alabama constitution]."

See Article 6 for an explanation of how Judge Moore lost the fight over the Ten Commandments.


Fun fact: "Number of Grateful Dead concerts attended by columnist Ann Coulter: 67"

My stepdaughter Yana showed me this one from Harper's Index.

Here are a few facts about Ann's polemical, anti-liberal views, just in case you have been living on a desert island.


Opera recommendations The Washington Post today has a good article about 25 operas you can't live without.

I will amend it as follows, noting that the links lead you to my favorite performances: get the Klemperer Magic Flute, not his recommendations (Boehm, Davis). Add Verdi's Falstaff (von Karajan) and Otello (Levine). You can't leave off Mozart's Don Giovanni (Mitropoulous or Colin Davis).

Finally, Moses and Aaron is an opera to love even if you don't usually warm to Schoenberg, buy the second Boulez recording.

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