Saturday, December 20, 2003

 
[Randy Barnett, 12/20/2003 04:35:19 PM]
More on the Medical Cannabis Victory: The Seattle Times has this unusually perceptive editorial--States and Federalism--on the role of federalism in protecting the liberties of person's using medical cannabis pursuant to state law. Here is an excerpt:

The line between the federal government and the states is in the Constitution, which grants federal authority over interstate commerce. But what is interstate? What is commerce? These words are open to interpretation, and between the New Deal and the Clinton era, courts were quick to label things as interstate commerce. The classic case was in 1942, when the Supreme Court said a farmer might affect interstate commerce by growing grain for his own chickens, and therefore could be regulated.

In 1995, the Court's "federalist" conservatives began to limit this federal power. It struck down a law banning possession of a gun within 1,000 feet of a school and, in 2000, a rape law. Gun possession and rape were not commerce, the court said. Let the states handle them.

Now the same doctrine supports medical marijuana. The 9th Circuit (rejecting one member who wanted to apply the chicken case to medical marijuana) is saying to the justices: Apply your federalist logic to this.

They should. States' rights are in the Constitution and, within the bounds of reason and individual rights, should be observed. And as a practical matter, there is no reason for a federal interference in medical marijuana. To citizens with degenerative and terminal diseases, the federal government has been bullying and unreasonable. It also bullies the states, whose policies are more reasonable and humane.

If the court will not back up the individuals, let it back up the states.

 
[Eugene Volokh, 12/20/2003 01:52:18 PM]
"The deceased former fuehrer and Reich Chancellor": According to a column in The Sun (U.K.) (not exactly an impartial source, it seems, but I have no reason to doubt the factual allegations),

BARMY BBC bosses have banned reporters from calling tyrant Saddam Hussein a former dictator.

Instead, staff must refer to the barbaric mass murderer as “the deposed former President”.

The astonishing edict was seized on by MPs last night as more proof of a Left-wing bias inside the BBC against the Iraqi war. . . .

Labour MP Ann Clwyd, who chairs the Indict group which has dossiers on the crimes of Saddam, his sons and henchmen, was astounded at the BBC’s stance.

She said: “It’s frankly ridiculous. Saddam Hussein is a despot, a murderer and a torturer. He will have to answer charges of war crimes, crimes against humanity and genocide.” . . .

The BBC said the email spelling out the instruction was sent to reporters on its online website, which serves a global audience.

A spokeswoman said: “This was reiterating existing guidelines to remind BBC News Online journalists of the need to use neutral language.”

Later she said the ban on calling Saddam a dictator did not apply to domestic services.

Seriously, there really isn't that much of a difference between that and a mandate that journalists say "the deceased former fuehrer and Reich Chancellor." I'm not fond of promiscuous comparisons to Nazism, but the analogy here seems quite apt.

 
[Eugene Volokh, 12/20/2003 08:28:53 AM]
Thursday's military detention cases: How Appealing has a link to audio where David Savage (the L.A. Times Supreme Court reporter), David Cole (a Georgetown lawprof), and I discuss the Padilla case and the Ninth Circuit Guantanamo detention case.

 
[Tyler Cowen, 12/20/2003 12:28:26 AM]
How safe is moonshine? Safer than you think, according to one recent study.

"New research sponsored by the International Center for Alcohol Policies (ICAP) used moonshine as a catch-all phrase to describe unbranded alcoholic beverages made outside the commercial mainstream, both licit and illicit. Marcus Grant, president of ICAP, says the global market for moonshine is "extraordinarily unexamined" given its size: "Our guesstimate is that probably at least half of the alcohol by volume that's consumed in the world is not branded.""

Here is more:

"Following an ICAP meeting in 1999, researchers in Tanzania, Zambia, Brazil, India, Mexico and Russia set about exploring this neglected area in a comparative study that recorded how moonshine is drunk across four continents.

Chemical analyses of various types of moonshine were also conducted. Mr Grant, who used to have a senior role at the World Health Organisation, said the overall conclusion was that moonshine was not as toxic as expected.

He admits that poisonings do happen. Methanol, battery acid and human excrement are among the dangerous substances sometimes present in moonshine.

However, Mr Grant adds: "What we found is that they are very much the exception and not the rule. Most of the moonshine produced is of reasonably high quality."

Mr Grant suggests there is such a thing as a reputable moonshine producer, who takes care not to do anything to harm valuable repeat customers. That said, some drinkers exhibit a darkly-humorous scepticism.

Researchers in Tanzania reported that gongo, made from fermented pawpaw, is often drunk with the toast: "Mazishi kesho saa nane" (burial tomorrow at 2 pm).

Ironically, ICAP is funded by companies such as Diageo, the distiller and brewer, which would benefit if moonshine were stamped out. Mr Grant instead reckons mainstream and underground producers could work more closely."

In sum, the problems of alcoholism are most significant costs of moonshine.

Friday, December 19, 2003

 
[Tyler Cowen, 12/19/2003 11:34:27 AM]
Robin Hanson on economics and evil: Robin Hanson, my ever-interesting colleague, saw the new Lord of the Rings movie and wrote me the following email, reproduced with his permission:

"The Return of the King movie was great. And as usual, such things make me ponder. To most people one of the big important causes of bad things in the world is evil people. Thus a central question to them is what causes people to be evil. It seems to me that a standard theory of evil is that while most of us know intuitively that we should not cross certain moral boundaries, this voice of conscience is weaker in some, and with practice, rewards, social support, and excuses, such people find they can convince themselves they are doing nothing wrong when crossing moral boundaries.

This is a big problem for we economists, as we seem to be constantly giving people excuses and social support for violating what most people see as moral boundaries. And we seem to have weak consciences ourselves. So we seem to be a big cause of evil people.

So, here's the big question: how do we respond to this accusation? Do we say that intuitive moral boundaries are over-rated? Do we say we disagree with some particular moral boundaries, but endorse others with great fervor? Do we offer a fundamentally different account of the cause of evil? Do we deny evil exists, or that it causes many bad things? Do we just accept being evil? Or is there another option?"

Richard Posner, of course, has levied the same charge against moral philosophy. Many people are knee-jerk deontologists and believe in common sense morality. Making them more thoughtful will not always improve the final outcome, but rather can increase their ability to rationalize wrong acts. I would defend economics as providing a good analysis of rules of the game. It can tell us which rules make it easier for people to be moral, and thus offer some good social advice. Like Robin, I find it much harder to defend educating individuals in economics as a tool of moral improvement. Plato was suspicious of art, Robin is suspicious of economics. Rousseau wanted children to read Robinson Crusoe, not more formal versions of political economy. Mill thought that the soul needed both poetry and political economy as offsetting forces. My research interest is how much people need to self-rationalize and self-deceive for society to operate effectively. Once I have started a book manuscript on this topic, I will post some of the chapters for you all to read.

 
[Eugene Volokh, 12/19/2003 11:07:03 AM]
Judge Reinhardt on detentions: Some lines from Judge Reinhardt's Ninth Circuit opinion about the Guantanamo detainees are telling:

Gherebi has not been subjected to a military trial. Nor has the government employed the other time-tested alternatives for dealing with the circumstances of war: it has neither treated Gherebi as a prisoner of war (and has in fact declared that he is not entitled to the rights of the Geneva Conventions [citation omitted]), nor has it sought to prosecute him under special procedures designed to safeguard national security. See U.S. v. Bin Laden, 2001 WL 66393 (S.D.N.Y. Jan. 25, 2001) (limiting access to confidential information). Instead, the government is following an unprecedented alternative: under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged.

What Judge Reinhardt is describing and condemning in the last sentence is the standard way that enemy detainees are treated. When the U.S. took German and Japanese soldiers prisoner during World War II, it imprisoned them without a fixed term (it did release them after the end of hostilities, but no-one knew how long this would be). It imprisoned them regardless of their formal citizenship. It did not give them access to civilian courts, or allow challenges in any civilian judicial forum (the judicial forum that Reinhardt seems to be calling for). Imagine what it would have been like if the government had to defend hundreds of thousands of habeas cases brought by enemy soldiers. Giving such rights to enemy soldiers would simply give them an extra weapon they could have used to fight us. That's no way to effectively wage war.

     Ah, Reinhardt says, but at least we acknowledged that they're prisoners of war. But "prisoner of war" status is given only to those enemy detainees who were fighting in accordance to the laws of war. Spies and saboteurs, and others fighting out of uniform or otherwise not in accordance with the laws of war -- which the government claims the Guantanamo detainees all did (there's a plausible argument that the government should provide some military tribunals to determine that in contested cases, but that's very different from providing civilian court review) -- are not entitled to the benefits of prisoner of war status. But they are still subject to all the burdens that other enemy detainees are subject to, including detention with no fixed term. The government may try them for violating the laws of war, but it has no obligation to try them; it may just detain them.

     The ability to detain enemy soldiers, in a military system with no civilian court review -- the ability that Judge Reinhardt is condemning -- is a basic, traditional, and necessary prerogative that any nation that's fighting a war must have. It can certainly be abused, as the other military prerogatives (say, of killing enemy soldiers in the field, or dropping bombs on enemy targets) can be abused. But that's no reason to shift this military matter into civilian courts.

     Oh, and note the one case citation in that paragraph: U.S. v. Bin Laden, from early 2001. That should be a reminder, I think, of the inadequacy of fighting a military enemy using the civilian court system.

 
[Tyler Cowen, 12/19/2003 10:22:57 AM]
Update, why the French need Hollywood, and how The Lord of the Rings is perceived: I've been spending my last four days locked in a UNESCO room debating cultural diversity with a French diplomat and a Quebecois lawyer, as well as with some African intellectuals. Everyone has been very polite and the Frenchman gave me a useful book on the great number of French cheeses and how to recognize them. But we have agreed on very little. The French and Canadian parties have built an intellectual alliance. This requires them to cover up their fundamental differences on the proper level for recognizing diversity. Many French wish to cement French culture on the international scene while suppressing diversity at home. Much of French history consists of centralizing tendencies, whether it be language, religion, or administrative law. Just consider Chirac's recent decision to ban Islamic headscarves in schools. The French Canadians, of course, want strong assurances of regional diversity within Canada. This is the exact opposite of the French method.

I believe that the French/French-Canadian intellectual alliance on this issue will collapse in the long run, once talk of diversity has to be translated into concrete proposals. Anti-Americanism is not enough to bind a coalition together. The two parties wish to fight for film quotas, and the so-called "cultural exception." All these debates will become rapidly obsolete. The Internet and file-sharing, not to mention satellite TV, will give us so much choice that quotas will no longer matter.

In the longer run, France needs American culture as a counterweight against its growing Islamic population. North American mores, as expressed by Hollywood and other forms of popular culture, can spread teenage rebellion against parents. This will help assimilate Islamic children into the broader French polity. I almost wonder if the French shouldn't be subsidizing the importation of Hollywood movies into their country.

But as it stands, both the French and French-Canadian views are allied by a great suspicion of American culture and of Hollywood in particular. I was quite surprised to hear The Lord of the Rings movies used as an example of how cinema reflects an American point of view. Of course the director Peter Jackson is a New Zealander. The author Tolkien was a Brit, and his stories drew on a wide range of influences, many of them Nordic. Most of the characters in the movie are not even human beings. How can this possibly be said to represent American culture in any way that is prejudicial to the Europeans?

I despair for the future of international cultural cooperation. America, France, and Canada have far more in common than their points of difference. We all need to drop our memes of symbolism and self-righteousness, and resume building the great project which is Western civilization.

 
[Eugene Volokh, 12/19/2003 09:43:00 AM]
One more legal point on the Padilla decision: As I mention in a new UPDATE to the Padilla post below, there's one other flaw in the Padillia majority. The opinion stresses that its rationale is only applicable to people captured outside a "zone of active combat." Thus, Hamdi, the other noted enemy combatant detainee who's a U.S. citizen -- and whose case is now being litigated in the Fourth Circuit -- wouldn't qualify under the court's holding, because he was captured in Afghanistan.

     That's a plausible policy distinction, and it may even be a plausible constitutional distinction. But it doesn't seem to me to be a plausible statutory distinction -- neither 18 U.S.C. 4001(a) nor the Joint Resolution draw it. The best way to defend the majority's distinction would be by arguing that "necessary and appropriate force" includes only force used against people in a zone of active combat, or at least overseas. But that's not, I think, a sound way to read that phrase -- warmaking has always involved force used to detain enemy spies and saboteurs within the U.S. as well as elsewhere. So under the logic of the court's decision, no citizens could be detained by the military, even if they were caught on the battlefield.

     As some people have mentioned, it's unfortunately hard to draw a distinction between active combat zones and the U.S. in this war. I do think some such distinction has to be drawn as a constitutional matter, for reasons hinted at in the earlier post; but it can't be drawn as a statutory matter.

UPDATE: Check out Phil Carter's analysis on this.

 
[Eugene Volokh, 12/19/2003 09:07:13 AM]
Legal Affairs on Judge Kozinski: A long and interesting article here. I have a few quibbles with it, but it's generally a very informative and entertaining piece.

 
[Eugene Volokh, 12/19/2003 08:51:28 AM]
Exam: So I heard something today that I rarely ever hear -- a student of mine who took my free speech exam yesterday came up to me and said "The exam was a lot of fun." Fun? Exam? Hey, I'm delighted, but very surprised. (And it's blind-graded, so the student didn't have an ulterior motive.)

     Maybe it was the cartoon that I included on the cover page -- not as squarely on point as I might have liked, but it somehow did seem thematically linked:

 
[Randy Barnett, 12/19/2003 08:08:13 AM]
My NRO Column on Medical Cannabis Case Now Up My column, Federalism Wins: Ninth Circuit gets medical-marijuana right is now up on NRO. Here is a taste:

This medical-cannabis case illustrates that federalism is a doctrine that provides benefits across ideological lines. If this case eventually goes to the Supreme Court, we will learn whether the more conservative justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove. We will also see whether the more liberal justices will put their disdain for Lopez and Morrison above the commitment to stare decisis, which would enable them to do justice by letting California protect the liberty of suffering persons to alleviate their distress, free of interference by the federal government.

I am in LA now, headed for Cabo San Lucas this morning, where I will be closely monitoring world events from poolside.

 
[Eugene Volokh, 12/19/2003 07:32:16 AM]
Belated poll results: When I first posted the Legal Affairs short story ("The Love Charm"), I invited people to let me know whether they liked the published ending better, or an alternate one. I've been tardy in tabulating the results, but now I have them: Of the 40 responses that expressed a preference, the vote ran 2 to 1 in favor of the alternate ending (which it turns out was the one I had originally written). Some people speculated that there might be a gender divide, but I didn't see it -- of the 10 women who expressed a preference, it was also 2 to 1 in favor of the alternate ending. Naturally, neither of these is a remotely representative sample even of all the people who read both endings; but I pass the information along just in case anyone is interested.

     By the way, it turns out that a screenwriter is going to try to see if he can make anything out of the story. The odds in Hollywood are always long against everything, but who knows?

 
[Eugene Volokh, 12/19/2003 04:24:30 AM]
Law geek, plus Lord of the Rings geek, all wrapped into one tasty package! Actually, it's pretty amusing. Thanks to Steve Burnett and Advanced Combo Tricks for the pointer.

 
[Eugene Volokh, 12/19/2003 03:03:41 AM]
Harry Potter and the Law: This case was in the news when it was decided in April, but the opinion just got online (Counts v. Cedarville School Dist., 2003 WL 22940575), so I thought I’d quote it briefly. The Cedarville (Arkansas) School Board voted 3-2 to require students to get their parents’ permission to borrow or read the Harry Potter books from the student library. Why?

     Because, quoting the court quoting the three board members in the majority,

1. "[T]he books are 'going to create problems in the school,' and 'could create . . . anarchy.'"



2. The access restriction "was 'a preventative measure at that school to prevent any signs that will come up like Columbine and Jonesboro.'"



3. "[B]ooks teaching that sometimes rules need to be disobeyed should not be allowed in the school library."



4. The books "'could' lead kids into juvenile delinquency."



5. They "deal with 'witchcraft' and 'the occult.'"



6. As one board member testified, "witchcraft is a religion and that he objected to a book which would expose Cedarville students to the 'witchcraft religion.'"

     The court held that the access restriction violated the First Amendment. I'm not sure that this is right; four Justices did hold in Board of Ed. v. Pico (1982) that removing a book from a library because of its ideology was unconstitutional, but this view didn't command a majority (four dissenting Justices disagreed, and one Justice expressed no opinion on the substantive question, and voted with the plurality for purely procedural reasons). So Pico isn't really binding precedent, and I'm not sure that its logic is that persuasive: I don't think the First Amendment bars the government from choosing what to have and what not to have in its school library, which the government may want to treat as a means for distributing those books that it wants to endorse, and not those that it wants to condemn. Maybe school libraries should try to foster a broad diversity of ideas, but I don't see how the First Amendment mandates such an educational policy. I'm also not sure that Pico's reasoning, even if sound, should extend to a policy that merely gives parents the control over which books their kids are entitled to get from the library.

     But, boy, this is a mighty silly policy for the school board to adopt. Seriously, witchcraft? What, are you going to ban the Wizard of Oz, too? Any children's books or fantasies that involve magic? "[B]ooks teaching that sometimes rules need to be disobeyed should not be allowed in the school library" -- I suppose there shouldn't be any books that praise the American Revolution, right? Perhaps books that praise vandalism or thuggery are a different story, but obviously Harry Potter hardly falls into that category. And "a preventative measure at that school to prevent any signs that will come up like Columbine and Jonesboro"? Come on, folks.

 
[Tyler Cowen, 12/19/2003 12:16:43 AM]
The worst idea I have heard in...well...at least a day... Several participants at my UNESCO conference are calling for a new program of UNESCO (that's right, UNESCO) sanctions. The sanctions would be applied against countries that do not take "all possible steps" (the words of one conference participant) to preserve cultural diversity within the nation. I was also told that these sanctions needed to be tough. Delegates from both developed and poorer nations endorsed this idea. These participants were not speaking for their home governments, but they are leading lawyers and intellectuals.

The following is pure speculation, but I will bet that some of these same people wanted to lift U.N. sanctions against Saddam Hussein. Saddam, in addition to his more publicized crimes, virtually destroyed the culture of the so-called "marsh Arabs." Imagine that, sanctions against all nations but pre-invasion Iraq.

Thursday, December 18, 2003

 
[Eugene Volokh, 12/18/2003 09:12:34 PM]
Biased Panels at High Schools: There've been quite a few news accounts about Hansen v. Ann Arbor Public Schools, a federal district court case decided two weeks ago. Some view it as a victory for free speech. I think it's unfortunately a victory for a false conception of free speech.

     Ann Arbor Public Schools put on a "Diversity Week," which was supposed to have panel discussions on race, religion, and sexual orientation. It eventually turned over the sexual orientation panel to the school's Gay/Straight Alliance club, and the GSA put on a panel on religious attitudes about sexual orientation, inviting various religious leaders to participate. The panel, though, did not actually have any real diversity of ideas on it: All the panelists argued that homosexuality was perfectly fine, among other things "discuss[ing] the Bible . . ., explaining how passages referring to homosexuality had been misunderstood or mistranslated by others to mean that homosexuality was immoral or sinful or incompatible with Christianity." The judge made much of the irony of a "diversity week" panel lacking diversity.

     Student Elizabeth Hansen tried to insist that some anti-homosexuality views would be placed on the panel, but was rebuffed. She was also one of the students asked to speak at a general assembly on "what diversity means to me," and she was told that she could not include a statement that she "can't acecpt religious and sexual ideas or actions [referring in context to homosexuality] that are wrong."

     The district court held that the biased panel violated the Free Speech Clause, that the insistence that Hansen exclude portions of her speech violated the Free Speech Clause, and that the panel violated the Establishment Clause. (Note that the judge treated the panel as being put on by the school, and not just by the GSA. I think this is probably right, given the circumstances of the event.) I think the Establishment Clause holding is correct -- the school was essentially endorsing the particular theology adopted by the religious speakers whom it invited.

     But I think the court was mistaken in insisting that the panel be organized in a viewpoint-neutral way. Despite the court's conclusion to the contrary, the school was using the panel to express its own views. The school administrators obviously thought that there's nothing wrong with homosexuality, and they wanted to convey this viewpoint to the children. They used others to express this view, and they were quite willing to give the panelists considerable flexibility as to the details of their presentations (as was the case in Rust v. Sullivan, the leading case establishing the proposition that the government is free to express a certain viewpoint through third parties). But they wanted to communicate a certain message to students, and that's what they got. Just as they were entitled to have a Patriotism Panel and invite only pro-patriotism speakers, or a Race Relations Panel and invite only anti-racism speakers -- or for that matter pro-race-preferences speakers -- so they were entitled to have a panel expressing one view on sexual orientation. Maybe that's bad educational policy and maybe it's good. But it's constitutionally permissible.

     What's more, nearly all panel selection decisions are necessarily viewpoint-based. If you can invite six people, you have to select which viewpoints you want represented. When I help people put together panels, including at public institutions, I actually do push for a considerable amount of balance -- I think interesting viewpoints on as many sides as possible should be presented. But of course some viewpoints will be excluded, because they are too far out of the mainstream, or factually unsupported, or too close (in the organizers' subjective judgment) to the viewpoints of others, or (sometimes) politically irrelevant. A race relations panel need not include a Klansman and someone from the Nation of Islam, nor does it need to include speakers whose views the organizers think are factually unsound. (I'm not trying to draw a moral analogy between Klansmen and those who oppose homosexuality here -- only a constitutional analogy, since under the Free Speech Clause, supporters and opponents both of homosexuality and of racial equality are constitutionally equivalent.)

     Of course, a panel that represents lots of reasonable viewpoints, whether on race relations or on homosexuality, is more interesting and fairer than an unbalanced one. (I'm not sure whether it's pedagogically superior at a high school, but it might be.)

     But from a First Amendment perspective, both involve a huge amount of viewpoint discrimination. So if the court's decision is correct, then neither government-run high schools nor government universities could effectively put on any panels, unless they used criteria that would be viewpoint-neutral but would ruin the panel's quality (such as first come, first served). That can't be right -- and the doctrinal reason that it's wrong is that the government is entitled to express its own view (or its endorsement of a set of rival views, but not some other set of rival views) through the panels it organizes. That the result seems disingenuous or narrow-minded doesn't make it unconstitutional.

     I think the restriction on Hansen's "what diversity means to me" speech is also constitutional, because again the government was using students to express views that the government favors. Hansen wasn't speaking just for herself, in an open forum in which any student could speak. The school chose her as one of the three speakers to whom it gave a special opportunity to address a wide audience. It should be entitled to select those speakers who it thought would express those views it liked (e.g., pro-diversity as the government understands diversity) -- or to select speakers and insist that they express the views that it liked. Again, this may be unfair or bad educational policy or even somewhat deceptive. But it's not a constitutional violation.

     High schools are places where the government spreads its views to students. The Free Speech Clause does not, I think, prevent the government from using a variety of techniques -- speaking through its employees, speaking through people whom it invites because of their views, or speaking through people whom it tells what to say and what not to say -- to express its views (subject to the Establishment Clause constraint that the government can't take stands on religious questions).

UPDATE: My friend Marty Lederman reminds me that the Court specifically said, in Forbes v. Arkansas Educational Television (1998), that government agencies are free to make viewpoint-based selection decisions in contexts such as "a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum," thus "facilitat[ing] the expression of some viewpoints instead of others." I don't see any constitutional distinction between selecting several speakers for a lecture series, and selecting several speakers to participate on a single panel. (As I said, I do think that as a matter of good educational policy and of fairness, schools should try to maintain balance on panels -- and in lecture series -- but they aren't constitutionally required to do this.)

 
[Eugene Volokh, 12/18/2003 09:02:01 PM]
Padilla v. Rumsfeld (sorry, the opinion PDF file might be a bit glitchy): I'm several hours late to this -- an eternity in Internet time -- because I was out in New Haven giving a talk on my Crime-Facilitating Speech paper. Still, here are a few thoughts about this Second Circuit decision from today, in which the Second Circuit held that Jose Padilla couldn't be held as a military detainee:

1. It's almost certain, I think, to go to the Supreme Court.



2. The decision was mostly on statutory grounds -- it concluded that the President lacked the inherent power to detain as enemy combatants U.S. citizens who weren't seized in the theater of war, and it concluded that Congress explicitly prohibited such seizures. It didn't resolve the core individual rights question: Even if the Congress did authorize the detention, would Padilla still have the constitutional right to have a civilian court decide whether he was indeed (or at least seemed likely to be) an enemy combatant?



3. The majority's argument rested on 18 U.S.C. 4001(a), which says "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." The government argued (among other things) that the post-September 11 Joint Resolution authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This, the government points, is the Act of Congress that authorizes the use of traditional military force against al Qaeda (the organization that planned September 11), and such traditional military force "against [the] . . . organization[]" includes the power to detain in military custody its members, whatever their citizenship.
   
        The majority disagreed: The Joint Resolution didn't authorize detention of citizens "clear[ly]" and "unmistakabl[y]" enough. But while I sympathize with the majority's arguments in some measure, I think the dissent ultimately had it right here -- nothing in 18 U.S.C. 4001(a) or in the rules of statutory construction requires any more clarity than what the Joint Resolution provided. The Resolution provided for the use of military force against al Qaeda. Military force has always been understood to include the power of military detention. Al Qaeda was an organization that was known to have members from many countries, and it was quite foreseeable that it would have some American citizens as members, too. (Even the Axis countries during World War II had some American citizens as soldiers.) There was no need, I think, to say "all necessary and appropriate force, including military detention, both of non-U.S. citizens and U.S. citizens."
   
        That in fact was the one dissenter's argument, and I agree with it -- as I agree with his conclusion that the majority should have instead reached the individual right question, and held that Padilla was entitled to a hearing where he could "contest whether he is actually an enemy combatant thereby falling within the President's constitutional and statutory authority." I understand in principle the virtues of deciding a case on statutory grounds, and leaving the protection of our liberties to the legislature in the first instance, and saving judicial protection only for times when Congress has indeed failed to provide legislative protection. But this is sound only when Congress has in fact taken a libertarian position. As to cases such as Padilla's, I think that it has not.



4. A curious item: The rarely-mentioned Third Amendment (you do know what the Third Amendment is, don't you?) makes an appearance, see p. 31.



5. Finally, my very tentative prediction to follow up on my firm prediction in point 1 above: The Court will agree with the dissenting judge, and hold both that the President had Congressional authorization here, and that Padilla was entitled to a civilian court hearing on whether he was indeed an enemy combatant.

UPDATE: I forgot to mention one other point. The majority stresses that its rationale is only applicable to people captured outside a "zone of active combat." Thus, Hamdi, the other noted enemy combatant detainee who's a U.S. citizen -- and whose case is now being litigated in the Fourth Circuit -- wouldn't qualify under the court's holding, because he was captured in Afghanistan.

     That's a plausible policy distinction, and it may even be a plausible constitutional distinction. But it doesn't seem to me to be a plausible statutory distinction -- neither 18 U.S.C. 4001(a) nor the Joint Resolution draw it. The best way to defend the majority's distinction would be by arguing that "necessary and appropriate force" includes only force used against people in a zone of active combat, or at least overseas. But that's not, I think, a sound way to read that phrase -- warmaking has always involved force used to detain enemy spies and saboteurs within the U.S. as well as elsewhere. So under the logic of the court's decision, no citizens could be detained by the military, even if they were caught on the battlefield.

UPDATE: Eric Muller disagrees.

 
[Jacob Levy, 12/18/2003 05:16:14 PM]
First "Return of the King" post: Spoilers ahead.

None of the following is meant to detract in a general way from Return of the King or from the movie trilogy as a whole. It's damn' brilliant. Peter Jackson deserves to become very very rich and to have a roomful of pretty statuettes. This is the loving nitpickery of the fan-- isn't that what the internet is for?

Continuing to pad out the spoiler space, a comment about one visual. Minas Morgul was very, very cool. It wouldn't have occured to me even to wonder what Minas Morgul was going to look like; unlike Gollum, the balrog, Treebeard, and Shelob, it wasn't an obvious effect to ponder in advance. And considering how little time it's onscreen, it could easily have been just done as a big scary stone tower. I'm glad it wasn't.

Here are what seem to me the general themes for nitpickeriness.

1) Narrative oddities, especially weirdness about the passage of time in different subplots but also weirdness about the passage of time even within each subplot. Sam and Frodo were at the top of a hill, and every square foot of Mordor was covered in campfires from bands of orcs. They reached the bottom of the hill, and two-thirds of the country was empty, as the orcs had gone on the march to meet Aragorn's army. And then it appeared that they got the rest of the way across Mordor in about twenty minutes.

2) Dialogue. Tolkien has a bad reputation when it comes to dialogue, but I think that's unfair. Tolkien's earnest lines have gravity to them. It's not the case that Jackson et al were just lightening up the overearnestness of the books. Legolas to Gimli: "How about fighting next to a friend?" Feh. Movie-earnestness, and groan-inducing. Ditto for the endless rhapsodic monologues about fighting for Goodness And The Shire.

Mortensen and McKellan in particular have a real way with Tolkien's earnest lines, a way of making them stirring and resonant. So chopping out whole chapters of it-- "The Last Debate," which got even more butchered than the Council of Elrond did--and replacing them with hokey one-liners seems like a waste.

Big exception: Aragorn's St. Crispin's Day speech. Entirely new, and worked quite well. The added Gollum-Frodo interactions were all very well-written, too.

3) The super-studification of Sam.

4) The Dead coming to Pelennor, primarily so that Jackson could indulge his special effects horror-shlock impulses. This was the only thing in all three movies that made me suspect a plot decision had been made in the service of the special effects, and I thought it was a bad decision. If there is an invulnerable army running amok, all the rest of the sacrifices of that day seem silly and pointless. Why do Aragorn, Legolas, and Gimli bother to run out and risk their necks instead of waiting for the Dead to slaughter every last orc?

5) The Aragorn-Arwen plot, and Aragorn's own plot. Considering how much got changed in the overall story apparently in the service of giving Arwen a bigger role, shehad even fewer lines in the third movie than she has in the third book. For two years I've expected it to be Arwen who brought Narsil south. I figured that was the whole point of having Aragorn not accept his birthright earlier, at considerable cost to other story elements (the Aragorn-Eomer relationship, for example)-- to give her something to do in the later movies. As it was, I just don't quite see the point.

5) Missing plots and subplots and scenes and chapters.
a) The confrontation with Saruman. (We know this is coming back-- I really want to hear McKellan say "Saruman, your staff is broken!"-- and when we watch the extended versions of all the movies together it won'treally matter whether we attribute that scene to TT or RotK. For now, its absence is irksome. I admit that I liked how Pippin did get the palantir, though.)
b) Denethor and his palantir. (A side-complaint: Gandalf smacking Denethor around.)
c) The Last Debate.
d) Faramir-Eowyn. (I hope some of this will show up in the extended version, but I freely acknowledge that it's not strictly necessary. Moreover, it won't have the same resonance since Faramir's character got so badly mauled in Two Towers.)
e) The Mouth of Sauron. (Notice that without him, the good guys never get the mithril coat back.)
f) Sam and Frodo marching across Mordor as orcs. We got one brief "aren't you a little short to be a stormtrooper?" shot, then that was it. I don't mind the lack of the "where there's a whip there's a will" scene, except insofar as it helped to prevent the choice between Frodo and Sam crossing Mordor in twenty minutes and endlessly repetitive "It's hot and we're hungry and thirsty and the ring is gnawing at my mind" scenes.
g) The Scouring of the Shire. I genuinely don't understand Jackson's distaste for the Scouring, given how much he overplayed the "We're fighting for the Shire!" theme.

Anything else?

 
[Jacob Levy, 12/18/2003 10:05:37 AM]
Today on Slate: An excellent piece on the career of British comics genius Alan Moore.

The following insightful paragraphs in David Edelstein's review of Return of the King:

There's a sequence an hour into Peter Jackson's The Return of the King (New Line), the final film of his The Lord of the Rings trilogy, that renders any narrative confusions, any objections to the lack of fidelity to J.R.R. Tolkien's original, any lingering doubts about the scale of this accomplishment, magnificently irrelevant. The armies of Sauron—hundreds of thousands of Orcs—are heading for the seven-tiered "city of kings" called Minas Tirith, where the wizard Gandalf (Ian McKellen) and hobbit Pippin (Billy Boyd) are attempting to convince a dangerously depressed and unhinged ruler, Denethor (John Noble), to call in reinforcements. Pippin is dispatched to climb a tower, slip past the guards, and set fire to a huge beacon as a signal to Aragorn (Viggo Mortensen), the future king, across the plains at Edoras, the Rohan capital. What happens when Pippin fulfills his mission is breathtaking: Jackson's camera soars, godlike, to the next Olympian peak, where watchers light their own beacon, and then to the next and the next and the next, until, in Edoras, Mortensen's Aragon turns his blue eyes to the light on yonder mount and asks the men of Rohan to ride into battle.

Of all the things to love about The Return of the King, it's those lightning shifts in scale that I find the most thrilling. I don't mean just the sudden impossible hugeness of it—those hundreds of thousands of demonic Orcs led by massive trolls and winged dragons called Fell Beasts and eight-story elephants called Mumakil as they surge toward a seven-tiered city that soars into the sky. I mean the way Jackson cuts from that amazing vision to something small: a spiked wheel grinding as the heavy gates of the city close; then a human face—Pippin, say, with his mouth grimly set and his eyes shocked open; then a few hundred thousand more marauding Orcs. So you get eye-popping spectacle, then a close-up with texture and weight, then a flash of human emotion, then more eye-popping spectacle. The threads are awesome, but it's the weave—of the epic and the intimate, the airy and the visceral, the lofty and the blood-curdling—that's spellbinding.

(And yes, I will be blogging in due course about "narrative confusion," "lack of fidelity," and so on-- there's a long list of things that seem screwy to me in RotK-- but Edelstein is exactly right about keeping those quibbles in perspective; the movie's brilliant.)

And did you see yesterday's Slate piece by our sometime coblogger Dan Drezner, on "the real trouble with the president's foreign policy"?

 
[Sasha Volokh, 12/18/2003 08:45:08 AM]
My friend Deana Morgan's George Bush commercial made it to the MoveOn.org Bush-in-30-seconds voting contest. You can see it here. (If you want to vote on it, you'll have to sign on and vote on a randomized progression of ads.)

 
[Sasha Volokh, 12/18/2003 08:24:42 AM]
I was curious to know what the legend of the candy cane was (see Eugene's post below), so here it is. Here's a fun activity to illustrate the legend for your K-2 child, and here's a debunking of that version of the legend.

Interestingly enough, the urban legends site also debunks the "true explanation" of the Twelve Days of Christmas song (that the song was a mini-catechism for Catholics in Anglican England). Apparently, the priest who supposedly found the evidence for this secret meaning said:

"I've got all kinds of people writing me demanding references for my work," he said. "I wish I could give them what they want, but all of my notes were ruined when our church had a plumbing leak and the basement flooded." Meanwhile, he said, his copy of the original article is on "a computer floppy disk that is so old that nobody has a machine that can read it, anymore."

Sound familiar?

 
[Juan Non-Volokh, 12/18/2003 07:57:48 AM]
On a Diet? Drink Guinness! Yes, it's true. The rich, thick, chocolate-brown mother's milk of beers has fewer carbs and calories than many lighter (and less tasty) beers. As a story noted in yesterday's print WSJ, 12 ounces of Guinness have only 125 calories and 10 grams of carbs -- less than Buweiser, Coors, or Corona. It might even be good for your heart. So, what are you waiting for? Drink up!*



*Your friends at the Volokh Conspiracy would of course want to remind you to always drink responsibly.

Wednesday, December 17, 2003

 
[Eugene Volokh, 12/17/2003 09:18:57 PM]
Discrimination against religion: Not nearly as bad as bans targeted at religious clothing (see Jacob's post yesterday about the French proposal for such bans), but -- if the claims are accurate -- still a violation of the Free Speech Clause, the Free Exercise Clause, and, I think, the Establishment Clause:

A religious liberties law firm threatened Wednesday to sue over a public school's refusal to let a third-grader give classmates fliers saying candy canes are hard because Jesus Christ is "the Rock of Ages."

Eight-year-old Jonathan Morgan, a student at Thomas Elementary School in Plano, had asked for permission to pass out "The Legend of the Candy Cane" -- along with the red-striped candy -- at a holiday party in his classroom Friday.

However, school officials told him no student is allowed to offer a gift containing a religious expression, according to the nonprofit Liberty Legal Institute.

     The Supreme Court has time and again struck down such discrimination against religious speech, and yet there are lots of court cases in which such discrimination has been found to take place, quite overtly -- and the practice seems to continue. As I mentioned, it violates the Free Speech Clause, because it discriminates against student speech based on its religious viewpoiint (see the Supreme Court Lamb's Chapel and Rosenberger cases, which make clear that discrimination against religious speech is viewpoint discrimination), as well as barring even student speech that isn't disruptive (see Tinker v. Des Moines Independent School District). It violates the Free Exercise Clause, because it singles out religious practice -- here the distribution of religious material -- for special prohibition. And it violates the Establishment Clause, because the Court has repeatedly said that this Clause prohibits disapproval of religion as well as endorsement, inhibition of religion as well as advancement, and hostility to religion as well as favoritism; and since policies that specially favor the distribution of religious speech would violate the Establishment Clause under the Court's caselaw, so policies that specially disfavor such distribution should likewise be seen as violating the Establishment Clause.

     The Court has held that governmental expression of religious sentiments is often prohibited by the Establishment Clause -- but expression by individuals and nongovernmental entities is fully constitutionally protected. That's clearly the rule applicable here.

 
[Jacob Levy, 12/17/2003 11:42:16 AM]
Well, equality and fraternity, anyways... I don't have time to do this full justice (there's a movie to go to tonight, after all)-- but it's really quite dreadful that Jacques Chirac is endorsing a law prohibiting the wearing of "ostensible" religious symbols in French public schools-- yarmulkes, headscarves, turbans if France were to acquire a Sikh population-- and, oh, yeah, in the big nod to neutrality, "crosses of manifestly excessive dimensions." (Nobody's interpretation of any major Christian doctrine requires the wearing of large crosses, making them not remotely parallel to the other cases.) He has even rejected the one compensation that his advisory commission had recommended-- adding a Muslim and a Jewish holiday to the calendar of school holidays. (It goes without saying that French schoolchildren don't go to school on Christmas or Easter.

The proposed law is really quite repressive. One item that hasn't been much mentioned in the English-language press is that it also prohibits wearing any visible political symbol (buttons and badges and so on). One article I read about that proposal in Le Monde last week made quite clear how arbitrarily that will be enforced, with school administrators drawing their distinctions between what is and what isn't political. An AIDS ribbon? An anarchist's A button? A button in support of SOS-Racisme? One administrator said that that wouldn't be prohibited, because anti-racism, isn't a political value but a republican value. But the ban clearly isn't restricted to a bright-line rule against partisan affiliations, either. It is going to leave tremendous discretion in the hands of principals to ban what they dislike and allow what they like.

Another major item on the "laicite" agenda is hospital care. The proposed law insists that no accommodation be made to those who are religiously scrupulous of being examined by doctors of the opposite sex. Much noise is made about protecting vulnerable Muslim girls and women from the terrible sexist rules that Islam imposes on them, from the fathers and husbands who insist on headscarves and on women doctors examining their daughters/wives. But-- even if the girls and women were entirely passive victims instead of often being committed believers themselves-- it does not do such vulnerable girls and women much good to set up rules that will predictably lead to their being kept out of both public schools and hospitals as much as possible. It is well-known in international public health that religiously conservative fathers from a number of religions will often simply decline to take their daughters in for medical care rather than "subjecting" them to examination by a man; it certainly makes a more-than-marginal difference for non-emergency visits (preventative care, for example). The laicite law will entrench that problem and aggravate it in France.

Tellingly, in Chirac's speech ons ecularism last week he referred to the wearing of a headscarf in schools as "a kind of assault" against France. The alleged concern for protecting Muslim girls fell away entirely; we were left with the understanding of secularism as requiring religion's invisibility, and the silly claim that any religious symbol visible to the naked eye constituted proselytization.

After years and years of reading about the French secularism debates I must confess that I am still baffled. People say, in all apparent good faith, things that I just can't imagine a reasonable person believing. ("Assault"??) The laitiists' understanding of separation and religious liberty is compatible with state action in support of Christianity, like public Christmas displays on government property. It's compatible with the creation of official government-sponsored governing and lobbying bodies for the major religious communities. But it's incompatible with individuals manifesting their religious faith in any noticeable way. Even the opponents of the new law say things that seem neurotic to me-- that Muslim girls only want to wear headscarves as a sign of protest against France's failure to integrate, against their poverty, etc, and that the headscarves will naturally vanish when distributive justice is done. It is, always, all about France and the French state, never about the conflicting obligations in conscience felt by committed religious believers.

Chirac's announcement-- which was not a surprise-- referred to 'the Islamic veil, under whatever name one gives it.' This is a recurring rhetoircal device of the laicitists. There are, as far as I know, no reported incidents of French Muslim schoolgirls attending school actually veiled. French Islam is not, as a rule, that conservative. What is at stake is headscarves, and the incessant use of "voile" instead of "foulard" is an attempt to elide the difference between committed believers and fundamentalists.

UPDATE: Russell Arben Fox says "No, not fraternity either, offering a careful and thoughtful communitarian critique of the proposed law.

 
[Sasha Volokh, 12/17/2003 09:00:44 AM]
On Red Dawn and my post from yesterday, Tom Smith weighs in here. Note, though, that I have seen the movie recently, and all the good stuff he says about the movie is (1) true and (2) consistent with bad artistic quality.

 
[Sasha Volokh, 12/17/2003 08:57:27 AM]
Queer Eye for the Medieval Man: Check it out.

 
[Eugene Volokh, 12/17/2003 08:39:56 AM]
Capitals: What is the northernmost national capital? What is the southernmost national capital? What is the westernmost national capital in the Americas? Answer here.

 
[Eugene Volokh, 12/17/2003 08:22:17 AM]
Bjorn Lomborg: As you recall, Bjorn Lomborg, the author of The Skeptical Environmentalist, has been at the center of a hot debate in environmental policy circles. Some time ago, the Danish Committees on Scientific Dishonesty concluded that Lomborg's work was dishonest -- a decision that itself spawned a furious debate. Now the Danish Ministry of Science, Technology, and Innovation, has apparently officially reversed the Committees' decision. Iain Murray reports:

[T]he Danish Committees on Scientific Dishonesty . . . found that Lomborg had been scientifically dishonest, but didn't mean to be, which is a pretty odd definition of dishonest, if you ask me. The committees did no independent investigation of the charges, instead relying almost exclusively on a series of articles in Scientific American by scientists whose conclusions Lomborg disagreed with.

Well, Bjorn's institute in Denmark today issued this press release:

Lomborg Decision Overturned by Danish Ministry of Science

The Danish Ministry of Science, Technology and Innovation has today repudiated findings by the Danish Committees on Scientific Dishonesty (DSCD) that Bjørn Lomborg's book "The Skeptical Environmentalist" was "objectively dishonest" or "clearly contrary to the standards of good scientific practice"

The Ministry, which is responsible for the DSCD, has today released a critical assessment of the Committee's January 6 ruling. The Ministry finds that the DCSD judgment was not backed up by documentation, and was "completely void of argumentation" for the claims of dishonesty and lack of good scientific practice.

The Ministry characterises the DCSD's treatment of the case as "dissatisfactory", "deserving criticism" and "emotional" and points out a number of significant errors. The DSCD's verdict has consequently been remitted. . . .

This will no doubt be characterized as politicization of science, when that's what the DCSD did in the first place.

Murray has more -- read his post for details.

 
[Eugene Volokh, 12/17/2003 08:15:22 AM]
Gay couple sues adoption service for sexual orientation discrimination: From the San Jose Mercury-News:

A gay San Jose couple Tuesday sued the nation's leading adoption-related Internet business, contending that it must abide by California anti-discrimination laws and stop barring same-sex couples from posting personal ads seeking birth mothers looking for prospective adoptive parents. . . .

[E]xperts say [the case could] serve as a wake-up call for Internet companies who wrongly believe they are immune from California law because they are based elsewhere. Officials with Adoption.com, which is based in Tempe, Ariz., contend the firm is subject only to Arizona laws and not a law in California that bars discrimination based on sexual orientation.

"I don't think everyone recognizes it, but it's become clear in recent years that if you are soliciting or doing business in a particular state, you're going to have a very difficult time avoiding that state's laws,'' said David Kramer, an Internet liability expert with the Palo Alto-based firm Wilson Sonsini Goodrich & Rosati, which is not involved with the case. . . .

[I]n a letter last year to the National Center for Lesbian Rights, an advocacy group representing the Butlers, Adoption.com attorney and principal Dale Gwilliam said the firm refused to list the Butlers' profile because scientific research has shown children thrive best in a traditional two-parent household.

The letter does not cite any studies, and groups ranging from the Child Welfare League of America to the American Academy of Pediatrics have stated that same-sex couples should not be excluded from adopting. . . .

The Butlers' lawsuit also accuses the firm of false advertising because it promotes itself by claiming that "Diversity is Our Strength.''

Some experts were surprised that Adoption.com will not post gay people's profiles. An increasing majority of adoption agencies now accept applications from same-sex couples, according to a study by the Evan B. Donaldson Adoption Institute, a New York-based think tank. . . .

     As readers of the site know, I generally support, as a matter of morality and justice, homosexuals' claims of liberty from government intrusion. But it is also clear that many gay rights claims are actual claims to restrict others' liberty -- for instance, the liberty of the people who run adoption.com to serve children in the way they think best.

     Naturally, as with antidiscrimination law generally, there are always claims that this is a proper restriction of liberty. Discriminating based on sexual orientation, the theory would go, is so harmful to people that people should not have the liberty to do this. But I think that at least we should realize that this is an attempt to restrict liberty using the government's coercive power, and one that requires a lot more justification than do homosexuals' claims to enter whatever relationships they choose without suppression by the government's coercive power.

     And the false advertising claim is an attempt to restrict free speech -- an attempt to have the government set forth an official orthodox definition of a highly politically contested term such as "diversity." Obviously "diversity" means different things to different people; no reasonable consumer will interpret it as a claim of fact about precisely what sorts of discrimination the company will or will not engage in. The ACLU is entitled to define its own understanding of "civil liberties"; no-one should be allowed to block it from using the terms on the grounds that it doesn't really support civil liberties such as, say, the right to bear arms, or property rights. No-one should be allowed to block abortion clinics from using terms such as "Reproductive Health Center" on the grounds that a true commitment to reproduction would support only actual reproduction, and not procedures to stop reproduction. Likewise, no-one should be allowed to force people to use only a governmentally approved definition of a clearly and notoriously politicized term such as "diversity."

 
[Eugene Volokh, 12/17/2003 08:00:04 AM]
"Partial-Birth Abortion" Ban Upheld in the Sixth Circuit:

The plaintiffs claim that Ohio’s new partial birth abortion statute . . . [is] unconstitutional, because: (1) it does not contain an adequate health exception; and (2) it imposes an "undue burden" upon a woman seeking to abort a nonviable fetus, in that the description of the banned abortion method encompasses the concededly lawful dilation and evacuation (D & E) abortion procedure.

As set forth in detail below, we reject both claims, and hold that Ohio's new statute does not violate the Constitution in any respect. . . .

Haven't read the decision yet.

 
[Randy Barnett, 12/17/2003 06:36:15 AM]
Listen to Oral Argument in Medical Cannabis Case: The oral argument in the US v. Oakland Cannabis Buyers Cooperative case (NOT the case decided yesterday) is now available in MP3 format on my website here. (Wait for it to download.) I have not yet transferred the analogue tape of the argument in Raich v. Ashcroft to digital format for uploading to my website.

UPDATE: For those who listen to the argument, In Raich v. Ashcroft, we changed our stance after this argument to avoid the question asked by Judge Schroeder about the relevance for purposes of Commerce Clause analysis that the conduct was legal under state law. I came to be persuaded that it was not relevant to defining the relevant class. Our ready concession of this in oral argument in Raich led the court in its opinion in that case to define the relevant class without any reference to state law.

 
[Eugene Volokh, 12/17/2003 06:34:45 AM]
Come to America illegally -- and then automatically get to make its laws, and govern legal citizens. That's what a UCLA Chicano Studies Research Center study seems to suggest (thanks to reader John Wolfington for the pointer). The study repeatedly talks about how all residents should be allowed vote, and draws no distinction between illegal aliens and legal permanent residents. As best I can understand its logic, a person who illegally enters a country today should be free to vote tomorrow -- which is to say be able to legally coerce (because that's what lawmaking is ultimately often all about) you and me tomorrow.

     A post on the very first day of this blog said "letting in immigrants = letting in your future rulers." That's true even if only citizens can vote; and while I generally support pretty open immigration, this point gives me some pause. I think that after people have lived here for several years, have expressed a desire to become part of our nation, and have gone through some effort, I probably trust them to rule me as much as I trust the average American to do the same. But I don't trust someone who has just arrived here, who doesn't know much about the country and the way we do things here, and who is especially likely to leave the country fairly soon.

     That of course is true for all very recent immigrants, but it's especially true for illegal immigrants. I actually don't think there's much that's inherently immoral to illegal immigration -- it may often show pluck and daring. But illegal immigrants have an especially weak moral claim to participate in making the laws of a country in which they lack even a legal right to be.

     In some situations, noncitizens have been allowed to vote; the idea of legal permanent residents voting is not radically new (though I suspect that the idea of illegal aliens voting is). But setting aside some unusual situations (mentioned in the last paragraph of this post), I think it's a bad idea, especially when noncitizens are a large part of the population.

     Want to participate in governing the country? Want a voice in when Americans should be forced to do this, or sent to jail for doing that, or required to pay this much in taxes to fund that program? Come here legally, under the rules that we have set forth, rules which to my knowledge are considerably more open to immigration than most other countries allow. Live here several years. Go through the legal procedures necessary to become a citizen. Swear allegiance to the nation. We will then accept you as a fellow governor of our lives (just as America accepted my family), and put our rights in part in your hands. That strikes me as the only sensible and fair solution.

 
[Eugene Volokh, 12/17/2003 05:21:13 AM]
Oy, have you got the wrong Wolverine: Careful, estemeed Euro-friends, when you're trying to plumb the mysterious depths of American popular culture. Reader Carter Wood reports:

Monday's Frankfurter Allgemeine -- the arts and letters section (Feuilleton) -- includes a column by Andreas Platthaus about the use of the term "Wolverine" in the assault. The article features a photo of the actor who played Wolverine is "The X-Men," with the caption: "Saddam's hiding place carried his name: Wolverine, from the movie, "X-Men."

It's not online that I found, but excerpted here.

Predictably, Platthaus goes on and on about Wolverine and the X-Men as being metaphors for America's post September 11 existence. Excerpts and my rocky translation:

[Wolverine's] battered, and yet still a tough fighter, and his triumph is certain, for he possesses supernatural powers of recuperation -- the ideal embodiment for America post September 11.

and . . .

You could interpret the codeword chosen for Saddam's hideaway as reflecting a bitter cynicism. For Wolverine's rage and brutality are consequences of his super powers, which were first given to him through American help.

Someone should sic John Milius on this guy.

P.S. A columnist at the Sueddeutsche figured out the reference, at least.

We realize that the complexities of America's multi-layered semiotics (especially at the polyvalent intersectionality of military modalities and civilian cinematic / graphic novelistic signifiers) may be difficult to grasp for people who come from, shall we say, less sophisticated cultural traditions -- but if you only acknowledge our superiority, I see no reason why such minor embarrassments should interfere with our amicable cross-Atlantic relationship . . . .

Tuesday, December 16, 2003

 
[Eugene Volokh, 12/16/2003 10:07:01 PM]
Biculturalism, UNIX, and Windows: A very interesting article (partly a review of Eric S. Raymond's The Art of UNIX Programming) about the cultural differences between UNIX and Windows, what caused them, and what flows from them. It's been a while since I thought a lot about UNIX or about operating systems design, and there are doubtless many developments that I missed, but my sense is that the article is largely right and often quite insightful. Thanks to my student Mark Yohalem for the pointer.

 
[Juan Non-Volokh, 12/16/2003 06:45:12 PM]
On Pseudonyms: I cannot speak for Eugene, but if Howard really wants to be a guest blogger and needs a good pseudonym, I am sure we could come up with something. (Hubert Non-Volokh? Henri de Croy? Inga Buchanan?)

 
[Randy Barnett, 12/16/2003 03:33:22 PM]
VICTORY IN 9th CIRCUIT MEDICAL CANNABIS CASE! JUST IN: I have just been informed that the Ninth Circuit has ruled for us in the Raich v. Ashcroft case I argued there last October. I am told the decision was 2-1 on Commerce Clause grounds. Judge Pregerson wrote the majority opinion, joined by Judge Paez, with a dissent from Judge Beam (of the 8th Circuit). I have not yet read the opinion but here is the link.

UPDATE: Having now read the opinions, I can report that the majority is a straightforward application of the Commerce Clause doctrine already adopted by the Ninth Circuit in US. v. McCoy and U.S. v. Stewart. Because the class of conduct at issue in this case--the cultivation and use of cannabis for medical purposes--is completely noneconomic, the aggregation principle of Wickard v. Filburn does not apply (as per the Supreme Court in U.S. v. Lopez and U.S. v. Morrison). There is no other jurisdictional "hook" in the Controlled Substances Act and the connection between the class of activities here and interstate commerce is too attenuated.

In dissent, as he was in oral argument, Judge Beam is overwhelmingly concerned with the similarities between this case and the facts of Wickard v. Filburn. I think he inadequately appreciates the gloss the Supreme Court in Lopez and Morrison placed on Wickard while upholding it. By Judge Beam's reasoning there is nothing outside the Commerce Power (as so many judges thought was the case before Lopez and Morrison). Significantly, to reach his conclusion, Judge Beam had to claim that the 9th Circuit wrongly decided the recent case of U.S. v. Stewart (holding that making and possessing a home made machine gun was noncommercial, though parts were purchased in commerce). I should have thought that Stewart decision was binding precedent in the 9th Circuit, in which Judge Beam was sitting for this case. But Judge Beam was clearly wedded to the expansive New Deal Court's view of both Wickard and of the Commerce Clause that preceded Lopez and Morrison. In our case we did not challenge the viability of Wickard. We simply followed the Supreme Court in denying that it sanctions an virtually unlimited power under the Commerce Clause.

What's next? The government must decide if it wants to petition for a writ of certiorari. Then we shall see if the Supreme Court grants its petition. In the meantime we have the first constitutional victory on behalf of users of medical cannabis.

It is supremely ironic that the Ninth Circuit is the court of appeals that is taking the Supreme Court's new Commerce Clause jurisprudence the most seriously. This case illustrates that Federalism is not just for political conservatives, and is a doctrine that provides benefits across ideological lines. If this case does go to the Supreme Court we will learn whether the conservative justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove, and whether the liberal justices will put their disdain for Lopez and Morrison above the commitment to stare decisis, which would let them do justice in this case.

UPDATE II: Here is the AP wire story (with garbled quote from me) in San Diego Union-Tribune.

Nice coverage by the LA Times is here (registration may be required).

The story on KRON is here.

 
[Sasha Volokh, 12/16/2003 02:34:35 PM]
Also, my latest epiphany: Sudafed is short for pseudoephedrine.

 
[Eugene Volokh, 12/16/2003 02:02:18 PM]
D.C. snipers as militant Islamists: Michelle Malkin has details on Malvo's views (thanks to Clayton Cramer for the pointer). Among many other things, Osama Bin Laden appears as a hero, and conspiracy theories about "Zionists" naturally appear as well.

     Of course, we ought not fault Muslims generally for the atrocities of a few Muslims, or even for the attitudes of many Muslims. That's neither effective nor fair -- just as it would be unfair to fault Christians generally for the evil acts or hateful beliefs of other Christians, and just as it would have been unfair to fault Christians even at a time when many more Christians were willing to engage in religious violence. Nonetheless, it's also a mistake to forget or to downplay that there is a violent Islamist ideology that we are up against here.

 
[Eugene Volokh, 12/16/2003 12:27:45 PM]
Still more on Red Dawn: Reader Stephen Foster writes:

I'm a JAG with the 4th Infantry Division in Saddam's former hometown of Tikrit. I've been amused at the lengthy discussion on 'Operation Red Dawn' and some folks' take on its implications.

I'm . . . not [in] the maneuver brigade that captured Saddam. But my guess is that some 'S3 Plans Captain', probably between the ages of 27 & 30, was tasked to draw up the plan of attack for the operation. A planner can only use terms like 'Objective Fox' or 'Phase Line Eagle' so many times before boredom sets in. A little "spice" is appreciated by the troops, and thematic names act as a sort of informal mnemonic for the operators.

I bet it's nothing more than a Gen-X'er reaching back in his mind to find something new and interesting for what seemed (at the time) another search operation in the Sunni Triangle.

 
[Eugene Volokh, 12/16/2003 12:22:49 PM]
Texas vibrators: Since Instapundit is linking to a story about a Texas housewife being prosecuted for the awful crime of selling a vibrator ("to undercover narcotics officers posing as a dysfunctional married couple in search of a sex aid," of all things), I thought I'd point out two little items about the Texas law:

1. Texas is one of only three states (Colorado and Kansas are the others) that actually has the word "dildo" occurring in its state statutes (Penal Code sec. 43.21, part of the definition of vibrator).



2. Texas also provides that "A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same." (Penal Code sec. 43.23.) If you've got six or more, you're not just a user -- you're a pusher!

     Seriously, folks, isn't it kind of silly not just to have such a law on the books, but to actually spend money, time, and effort enforcing it? Never mind whether you think it's immoral; why should people actually be criminally prosecuted for it?

 
[Eugene Volokh, 12/16/2003 12:14:58 PM]
Double-landlocked: Let's call a country "landlocked" if it doesn't border any ocean or sea, except the purely inland seas that have no substantial natural connection to the ocean (e.g., the Caspian Sea or the Aral Sea). This is more or less the standard definition: Paraguay, for instance, is landlocked; Turkey is not.

     Which countries in the world are double-landlocked, which means that all the countries that they border are themselves landlocked? Answer here.

 
[Eugene Volokh, 12/16/2003 11:47:09 AM]
Vatican reaction to Saddam's capture: My friend and colleague Stephen Bainbridge has some thoughtful comments on this.

 
[Sasha Volokh, 12/16/2003 09:53:49 AM]
More on Red Dawn: Last year, my law school gun club (back when I was its president, before I graduated) held a screening of Red Dawn. I hadn't seen the movie in about 15 years, unless you count a snippet I caught on Munich television, dubbed in German, the summer before last. The viewing was fun -- a few people managed to drink over a dozen beers each and stacked the empty bottles in interesting pyramids, and I shouted at the appropriate moment, "Boo for the implied humanity of the Cuban revolutionary!" (I think it was Jonathan Skrmetti who had complained to me earlier about that point in the movie.)

When it was all done, we had a controversy over whether the script was awful or whether the acting was awful. I, ever the moderate, suggested that perhaps the script was awful and the acting was awful.

 
[Eugene Volokh, 12/16/2003 09:20:17 AM]
Still more on Red Dawn: Reader Bill Twist writes:

You are absolutely right, the movie “Red Dawn” was and is popular with those in the military. It was popular when I was in the Army back in the 1980’s, and still has a following there, as my brother attests (he is an active duty E-5, just back from Afghanistan a few months ago). My wife had to put up with a viewing of “Red Dawn” after my brother came back, it was one of the movies he wanted to see again.

Reader Andy Freeman writes:

One of the significant battles in [the Iraq War] is the battle of the three stooges. That's the battle that held three intersections (called "Larry", "Curly", and "Moe" by the relevant soldiers at that time) so that supplies were available for the dash & hold of Baghdad. . . .

So again I don't think that propaganda was much of a driving force here.

 
[Eugene Volokh, 12/16/2003 08:31:53 AM]
Mickey Kaus writes, in Slate:

TNR's Ryan Lizza . . . quotes with a straight face a Dean "senior adviser" saying the following:

"This doesn't change much for his candidacy . . . We are no safer today than we were yesterday. The man was found hiding in a hole. He was hardly a threat to the people of Chicago." [Emph. added]

A few more flailingly stupid statements like that -- as if hundreds of thousands of Iraqis weren't scared to cooperate with American soldiers out of fear that the man in the hole might return to power -- and the Dean campaign could succeed in frightening even Iowa Democratic caucus-goers. . . . And wasn't today supposed to be Centrist Foreign Policy Respectability Day for Dean? . . .

I actually think the Dean adviser's comments were also wrong for reasons other than the one Kaus gives, but Kaus's general point is eminently sound.

 
[Eugene Volokh, 12/16/2003 08:17:56 AM]
More on the name "Operation Red Dawn": Reader Ethan Hahn makes a good point:

[H]ow many prior operations could have captured Saddam but didn't? We may have been discussing Operation Tron or Operation Breakfast Club if earlier raids had been successful . . . .

 
[Tyler Cowen, 12/16/2003 12:49:44 AM]
A fact to stagger the mind: Since the Chinese economy was opened up in the late 1970s, an estimated 300 million people have migrated to the cities. Another 250 million are expected to move out of the villages by the year 2020.

This is one of the stories of the century, yet it has received surprising little coverage. Is it too naive simply to write: "That's a lot of people!"? The FT article "A Vast Human Tide Floods to the Cities" I cannot find on their web site, nor was it especially insightful. Nor did some Google searching turn up anything that I felt VC readers should be aware of. If you know of something excellent on this topic, drop me a line. My overall impression is that the transition has gone remarkably well, given the incredible numbers involved.

Monday, December 15, 2003

 
[Stuart Benjamin, 12/15/2003 10:46:12 PM]
Hypocrisy *and* Hush Money? Strom Thurmond's family has acknowledged that Essie Mae Washington-Williams was his daughter. Strom had lots of kids, but she is notable: her mother was a 16-year-old African-American maid who worked for the Thurmonds and had a sexual relationship with then-22-year-old Strom. Thurmond never publicly acknowledged her as his daughter (although he apparently did so privately), and responded to the rumor of his mixed-race offspring by saying that it was too undignified to warrant comment. There are many disturbing questions about Thurmond's actions, but let me focus on two.

First, was he a big-time hypocrite? After all, he ran for President in 1948 on a platform that stated as one of its nine points:

We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one's associates; to accept private employment without governmental interference, and to earn one's living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program.

He said at the time "on the question of social intermingling of the races, our people draw the line." And, as Diane McWhorter notes, "Thurmond's other signature political achievement—the 24-hour-without-bathroom-break filibuster against the Civil Rights Act of 1957—was done in the name of sparing the South from 'mongrelization.'"

The only possible defense to the accusation of hypocrisy is that he never really meant all those things -- he was just an opportunistic politician. He would have said the exact opposite if that would have helped his career. This would relieve him of the claim of hypocrisy insofar as that term is defined as acting inconsistently with one's private beliefs; if hypocrisy depends on public utterances, then his insincerity doesn't help him.

So the choices with Thurmond seem to be that either he was a hypocrite or someone who would say anything to get elected, even if he disagreed with the words he was saying. Which one was he -- hypocrite or liar? My guess is that he really did believe what he said in the 1940s and 1950s, so I think he was probably a hypocrite. One piece of evidence that provides some support for this position is that, unlike some other former segregrationists, he never did repent.

The second disturbing question is, what did he do to cover this up? One big question is why Ms. Williams never went public while he was alive. She now has given us an answer, and it's not pretty: "Williams said her earlier statements had been a cover, part of an agreement she made with the senator to keep quiet in return for decades of financial support." She had little money -- she was, after all, a daughter with no father (and a mother who worked as a maid and died young). Thurmond helped to create her penury by not raising her, and then exploited her poverty by apparently making a deal in which he would give her money in return for her silence about her true parentage. I don't blame her -- she was dealt a pretty lousy hand by life (and by Thurmond more specifically), and she made a rational decision given her choices. I do blame him. His decision was rational in the way that hush money is often rational -- the briber would rather pay the money than have the information revealed. But it's a pretty despicable business when the hush money is paid to your daughter to further a career built on discriminating against her and others like her.

 
[Eugene Volokh, 12/15/2003 07:54:26 PM]
A funny sort of "propaganda": Slate's Chatterbox thinks "Red Dawn" was an inapt name for the operation that led to Saddam's capture:

Chatterbox is delighted that U.S. troops have captured Saddam Hussein, the murderous former dictator of Iraq. But couldn't they have given this military operation a better code name than "Operation Red Dawn"?

Red Dawn is a campy Cold War-era movie depicting the invasion of the United States by Soviet and Cuban troops. A band of youths from a small town in Colorado (including, pre-Dirty Dancing, Patrick Swayze and Jennifer Grey) name themselves the "Wolverines" and mount a guerrilla resistance against the totalitarians who murdered their families. . . . The tip-off that Operation Red Dawn was named deliberately after the movie is that the two hiding places scouted out by the combat team were code-named "Wolverine I" and "Wolverine II." . . .

The problem with calling Saddam's capture Operation Red Dawn is that it subverts the righteousness of our action with Orwellian Newspeak. (By sheerest coincidence, Red Dawn was released in 1984.) The U.S. military isn't mounting an insurgency against a foreign invader. It is the foreign invader. The real insurgents in Iraq -- its Wolverines -- are the Baathists and Islamist extremists who continue to wage guerrilla war against the American occupation and its Iraqi collaborators. By stating this, Chatterbox does not mean to insult our troops or pay any sort of compliment to the Iraqi opposition. In this particular situation, Huge Invading Force = Good Guys, and Scrappy Wolverine Resistance = Bad Guys. . . . Now the Pentagon has undermined this clarity by introducing an unhelpful vocabulary that invites disaffected Iraqis to make stupid comparisons between the United States and the former Soviet Union. How inept can propaganda get?

     Well, maybe so inept that it isn't propaganda or "Orwellian Newspeak" any more -- and never was propaganda in the first place. "Red Dawn" isn't exactly "Star Wars," known and loved at home and abroad. The U.S. can't get much propaganda value out of the allusion to the movie, since very few people (and certainly very few "disaffected Iraqis") are going to get the allusion; and of those that get it, very few will be particularly persuaded or influenced by it.

     In fact, here's my conjecture: "Red Dawn" is disproportionately popular among the military. Some military people who were involved in the planning really liked the movie, and thought it would be cute and fun to throw in an allusion to it. No, it never was a very apt allusion -- but when you're looking for cute and fun, you sometimes overlook that, precisely because you're aiming at amusing yourself and your buddies (and conceivably reinforcing morale among the troops, though I suspect the troops care much more about the success of the motion than its name) rather than at creating propaganda aimed at the public, American or Iraqi.

     Chatterbox thinks that the propaganda effect was intended to be positive, but will in fact be negative. I suspect that both the intended and the actual propaganda effect were exactly zero.

 
[Eugene Volokh, 12/15/2003 01:51:19 PM]
Merging two themes from my recent correspondence: The ancient Romans could also have benefited from penis enlargers, Nigerian moneymaking schemes, and the Paris Hilton video.

 
[Eugene Volokh, 12/15/2003 01:49:09 PM]
"Iraq, Kentucky Vie for World Shooting-Into-the-Air Supremacy." Thanks to Rand Simberg for the pointer.

 
[Eugene Volokh, 12/15/2003 01:34:49 PM]
Best group blog: I'm very pleased to report that the WizBang online poll has named us the Best Group Blog.

 
[Eugene Volokh, 12/15/2003 01:26:41 PM]
Celebrating by shooting into the air: Not only unsafe, but officially declared culturally inappropriate in the U.S., by no less a luminary than Judge Posner: "Shooting rifles in the air to celebrate a holiday is part of the culture of some other countries, but it is not part of American culture, where for good reasons it is regarded as a dangerously, and criminally, irresponsible use of a firearm." Thanks to Gary O'Connor, who has a paragraph on how the "is it cultural?" came to court in the first place.

 
[Eugene Volokh, 12/15/2003 11:28:28 AM]
Rated XC, for . . . (watch out, this is really filthy) cigarettes: From a press release for a performance at UCLA:

For mature audiences only, the play includes cigarette smoking and strong sexual content.

Italics are in original. And this is a play based on Dostoyevsky, for heaven's sake -- how many impressionable youngsters were they expecting? (Thanks to Robert Light for the pointer.)

UPDATE: Reader Dick Riley points out:

[L]umping cigarette smoking in with "strong sexual content" is not likely to make cigarette smoking any less attractive to youth!

 
[Eugene Volokh, 12/15/2003 11:19:55 AM]
Ancient Rome: I've gotten over 200 responses to my ancient Rome query -- thanks very much for the help; I hope to summarize the results in a week or two. In the meantime, please keep the messages coming. To prevent duplicates (naturally, there've been plenty), let me point out some of the most popular items that people have suggested: stirrups, whipped cream, cowpox as a vaccine for smallpox, penicillin, Arabic numerals, the abacus, sterile technique, distillation, the printing press, the scientific method, pasteurization, the horseshoe, the toothbrush, the compass, the wheelbarrow, glass lenses, gunpowder, soap, and horse plow collars. (Not all of these satisfy my criteria -- among other things, quite a few are the sorts of things that most intelligent laypeople wouldn't know.)

     Here again is the query: I am looking for items that match all of the following conditions, and I'd love some help, if any of you would be kind enough to provide. Which items (products or processes) satisfy all these criteria:

1. They were unknown to people in ancient Rome circa 150 B.C.
2. They could be manufactured with then-existing technology and then-available raw materials.
3. They would be at least modestly useful in that era.
4. Even a nontechnically minded person today -- say, a smart 12-year-old -- would know how to make and use them. This is particularly important, and one on which many suggestions seem to founder.
5. Their absence would be pretty clearly visible.

UPDATE: Scratch the abacus -- reader R. Horn points to this picture of a Roman hand abacus. Haven't focused closely enough on it to see whether our modern abacus would be much of an improvement.

 
[Tyler Cowen, 12/15/2003 09:36:21 AM]
Subdued reactions: I am blogging from Paris, where the reaction to Saddam's capture has been noticeably subdued. The Parisians, however, have never been nicer to me. I find not a trace of snobbery or hostility. Everyone is quite willing to speak English once they hear my miserable French.

Shortly I will be attending a UNESCO conference on promoting cultural diversity. Both co-blogger Jacob Levy and I have a strong interest in this topic. I will be making the argument that movie and broadcast quotas are counterproductive for French culture, and for most other cultures around the world. Hollywood movies, for instance, have financed the multiplex boom that has been so helpful for the domestic production of European movies. Furthermore quotas tend to keep out the more interesting American films. Jurassic Park will get through in any case. So quotas will not only make Hollywood look worse in European eyes, but in the long run they will lower the quality of Hollywood movies. European audiences, on net, improve quality, if only because they are older. They tend to demand more thoughtful and more sophisticated products. They also like "auteurs" more than American audiences do. Kill Bill, by the way, appears to be more popular here than it ever was in the States (not all of you will consider that to be a quality improvement). The Meg Ryan movie ("In the Cut"?) is about to have a large opening here, although it vanished quickly from theaters in the states.

If blogging is scarce for a while, it is because I am being harangued about American cultural imperialism by numerous other delegates to the conference.

 
[Tyler Cowen, 12/15/2003 09:26:53 AM]
Peaking too early can kill you:

"Here's some reassuring news for those of us whose career plans are slightly behind schedule: It turns out that peaking too early may kill you. That's the finding of Stewart J. H. McCann, a professor of psychology at the University College of Cape Breton in Nova Scotia.

McCann's research, published in the February issue of Personality and Social Psychology Bulletin, concerns what he calls the ''precocity-longevity hypothesis.'' McCann analyzed the lives of 1,672 U.S. governors who served between 1789 and 1978 and found that those who were elected at relatively tender ages generally died earlier than their less precocious counterparts. Even when he controlled for the year that the governors were born, how long they served and what state they governed, the pattern held. No matter how he sliced the data, ran the regressions or accounted for various statistical biases, the story remained the same: governors elected to office at younger ages tended to have shorter lives.

And what holds for state executives seems also to hold for other young achievers. McCann also analyzed smaller but more diverse sets of accomplished people -- including American and French presidents, Canadian and British prime ministers, Nobel laureates, signers of the Declaration of Independence, Academy Award winners and seven centuries' worth of pontiffs. Again, he found that ''those who climb to the loftiest peaks in the shortest time also die younger. For the eminent, and perhaps for all, an early rise may lead to an early fall.''

That's from the New York Times's notable ideas of the year section. I think it is the subsequent loss of relative status that kills these people. This mechanism also would explain why post-Soviet males are dying off at such young ages. The Russian market reforms have reallocated power and status to much younger men. The older men feel less important and the quality of their health is plummeting. So if you are doing well in life, beware. Make sure that your future holds something even brighter.

 
[Eugene Volokh, 12/15/2003 07:43:59 AM]
The supposedly right-of-center blogosphere: A couple of days ago, I again heard the assertion that blogs tend to be right-of-center. I've always been skeptical of such assertions. Who knows what blogs generally are like? No-one reads a random sample of blogs (whether weighted by hit count or not); they read a selected subset that's doubtless skewed in all sorts of ways. If most of the blogs you read or at least know of are right-of-center, then blogs generally will look right-of-center to you -- but that might just be a function of your reading preferences, not of the actual qualities of the average blog.

     Here's one data point to support my skepticism: The traffic summary compiled by N.Z. Bear. Bear's list is naturally itself skewed in various ways, but as best I can tell he himself is somewhat right of center (yes, I know, that's a simplistic summary of his views, but the whole "the blogosphere is right-of-center" uses the same simplistic evaluation), so you wouldn't expect his reading patterns to have skewed the list towards the left. Nonetheless, here's what the top ten looked like when I checked it Sunday night:

1) Instapundit 78583 visits/day (1)
2) Daily Kos / Political State Report 48593 visits/day (5)
3) Eschaton (Atrios) 45811 visits/day (3)
4) Gizmodo : The Gadgets Weblog 39264 visits/day (227)
5) Blog for America 33746 visits/day (52)
6) Smirking Chimp 26324 visits/day (182)
7) CalPundit 17310 visits/day (8)
8) The Volokh Conspiracy 10833 visits/day (10)
9) filchyboy 10391 visits/day (4428)
10) Tom Tomorrow 8089 visits/day (25)

Of these, two (Instapundit and we) are "right-of-center" (with the usual caveats). Gizmodo is, I think, nonpolitical. The other seven are all left-of-center. Even if you (1) throw in Andrew Sullivan, who as best I can tell gets roughly the same hits as Instapundit, (2) remove Blog for America, if the assertion is about freelance blogs as opposed to organizational ones (a la Blog for America, The Corner, Hit & Run, and the like), and (3) weight the result by number of daily visits (counting Sullivan as having the same as Instapundit), you still get about 170,000 visits/day for the right-of-center and 155,000 visits/day for the left-of-center -- very similar numbers.

     Now, for the reasons I mentioned, this doesn't show that the blogosphere is politically balanced -- you can't tell that without a more representative list of blogs. It might also be that if you count the Top 50 blogs, you'll get a somewhat different result, though I doubt that it will be vastly different. But I do think this is consistent with my theory that there is no solid evidence for the claim that the blogosphere is right-of-center.

UPDATE: Reader Dick Riley suggests that the "blogosphere is mostly right-of-center" claim might have been correct some time ago, for instance 1 1/2 to 2 years ago. Maybe so; but I'd still be skeptical of any such claims, for the reasons with which I started the post. And in any event, even if the claim was once correct, it seems to me to be unproven -- and highly questionable -- as a characterization of the blogosphere today.

FURTHER UPDATE: Mitch Sommers, who contributes to the Political State Report, points out that the Political State Report is multipartisan, though Kos is left-leaning. Given that Daily Kos and Political State Report share a hit-counter, I'm treating them as one big site, which is on balance left-of-center, though it has a partisan and a multipartisan component. If someone can get me disaggregated statistics, I'll be happy to revise my data above; but in any event, I doubt that this will throw off the analysis that much (even counting, as I said, Andrew Sullivan as the equivalent of InstaPundit in traffic, and excluding the Howard Dean Blog for America).

 
[Eugene Volokh, 12/15/2003 06:53:13 AM]
Happy Bill of Rights Day! Note that the Bill of Rights, as currently interpreted, would not protect prostitutes wearing sandals with the letters "Follow me" imprinted on them, so that the letters form a trail as they sashay around the square (because this would be commercial advertising promoting -- even if slightly indirectly -- an illegal transaction, and thus unprotected by the First Amendment under the rules applicable to commercial speech). There, now the blog feels more connected.

 
[Eugene Volokh, 12/15/2003 06:51:28 AM]
The sex business has apparently long led the way in communications technology -- not just in VCRs, DVDs, and Internet video, it turns out, but also a major feature of the printing press. Anise Strong, who studies classics at Columbia (and who's the sister of my friend David Franke, as well as the sister-in-law of copyright blogger Matthew Morse (small world), writes:

There's evidence that prostitutes in the 1st century BCE wore sandals with the letters "Follow me" imprinted on them, so that the letters formed a trail as they sashayed around the Forum, but this was never transferred to mass block printing, sadly enough.

 
[David Bernstein, 12/15/2003 06:20:03 AM]
Blogging Break: While other blogs are asking for year-end donations, the Pareto-efficient alternative to reward the Volokh Conspirators is to purchase books written by us (Amazon links here), for yourself or as a gift. If you enjoy this blog, you will almost certainly find one or more of these books of interest.

Meanwhile, a combination of holiday travels and year-end obligations means that I won't be blogging from now until after the New Year (though I'm sure Eugene and the gang will make sure our readers aren't neglected). So, Happy Chanukah, Merry Christmas, and Happy New Year in advance.

 
[David Bernstein, 12/15/2003 05:16:00 AM]
Puzzling NY Times Story on Bear Hunt in New Jersey: I intensely dislike hunting, less because I feel sorry for the animals involved--nature is pretty brutal, after all--and more because I don't fathom why anyone would get pleasure from killing an animal for sport, other than rather unappealing atavism. But I don't understand the point of this New York Times article, which reports distress over the large percentage of female bears killed in a recent bear hunt in New Jersey. The purpose of the bear hunt was to reduce the bear population to reduce the increasingly common interactions of human and bear. If that was the goal, wouldn't the high percentage of female bears killed be a good thing, even from the anti-hunting perspective? The higher percentage of females killed now, the fewer young will be born, and the less likely a bear hunt will be needed in the future.

Sunday, December 14, 2003

 
[David Bernstein, 12/14/2003 10:45:49 PM]
Troubling News From Pakistan: The (justified) euphoria over Saddam's capture has obscured the story from Pakistan that President Pervez Musharraf came within thirty seconds of assassination Sunday, probably by Islamic radicals. We can only hope the U.S. and Indian governments have failsafe contigency plans in case Pakistan (and its nuclear weapons) falls to Islamicists.

 
[David Bernstein, 12/14/2003 04:50:44 PM]
Not Everyone's Happy with Saddam's Capture: Palestinians seem particularly distraught. Who is going to fund the families of suicide murderers now?

 
[Eugene Volokh, 12/14/2003 02:54:29 PM]
A gun control proposal I would endorse: No firing into the air to celebrate, even things that are much worth celebrating.

 
[Eugene Volokh, 12/14/2003 02:29:15 PM]
Odd MSNBC headline: It's the big one up right now:

Bush: Saddam will 'face the justice.'

Was your first reaction "Bush was misspeaking, and the media caught him"? ("Face the justice" is a pretty odd locution, except in some unusual contexts.) If so, what do you think about the headline after you read the whole quote from the AP story that MSNBC is referring to? The AP story is linked to from the main MSNBC story (which doesn't contain the full quote), and it reveals that Bush's statement was actually perfectly correct:

Bush said Saddam "will face the justice he denied to millions."

(Here's the full transcript.) Naturally, headlines sometimes have to abbreviate things -- but this seems to be neither a fair abbreviation nor a helpful one. Thanks to reader Mark Cates for the catch.

UPDATE: It's been fixed -- it now says "President Bush says the former Iraqi dictator 'will face the justice' he denied to millions. 'A hopeful day has arrived.'" Glad to see they've changed it. Thanks to Ralph Luker for letting me know.

 
[David Bernstein, 12/14/2003 07:36:14 AM]
Partisan ACLU? The ACLU of Pennsylvania has an advertisement on Atrios that says "Annoy Santorum and His Dog: Join the ACLU." I'm not sufficiently up on Pa. politics to know what the dog reference means, but isn't this ad a bit partisan for a reputedly non-partisan civil liberties organization?
UPDATE: As many readers explained, Santorum's dog is apparently a reference to Santorum's suggestion that giving a constitutional right to men to have sex with men is analytically analogous to giving such a right to men who had sex with dogs. That still doesn't explain why Santorum's dog would care one way or another if someone joins the ACLU, unless, as one reader suggests, it's a reference to the fact that "some have suggested Santorum is concerned about the issue because he enjoys having sex with dogs." If that's the reference, well, draw your own conclusion. Regardless, picking on an individual senator as part of a membership campaign makes the Pa. ACLU appear partisan and political, rather than as an organization devoted to civil liberties. And one reader pointed out the possibility, which I should acknowledge, that the ad was placed by an ACLU supporter, not the Pa. ACLU itself.
UPDATE: One reader thinks the dog references alludes to "Legally Blonde 2" where Reese Witherspoon blackmails a conservative, anti-gay senator when she finds out that his dog is gay.

 
[David Post, 12/14/2003 07:33:02 AM]
The Uncertainty Principle: It's really quite remarkable. Here I am, listening to a news report on NPR about the capture of Saddam Hussein. The reporter in Baghdad is asked: "so how are people reacting to the news?" He responds (I'm paraphrasing): Many people are clearly delighted -- I can hear shots coming from the street behind me where celebrations are going on. But many people think this could be seen as a blow to Arab pride, and might trigger a new round of attacks."

     Here's what kills me about this sort of thing. We hear or read stuff like this all the time, of course -- my favorite examples are the articles in the paper, every day, about "why" the stock market went up, or down, the previous day -- why the millions of people who traded during the previous day did what they did, what they were thinking about the state of the economy, the price of oil, the future prospects for the semiconductor industry, or whatever. Put aside the fact that the reporter here (whose name I forget, but no matter) almost certainly speaks not a word of Arabic. Even were he fluent and actually able to talk to Iraqis, here it is, 12 hours or so after this event has taken place, and he already knows something about what "many people" think about it. How could he possibly know that? I don't understand why, when we hear patently absurd things like that, we all just sort of nod our heads and keep listening. There's some powerful need to pretend that we understand the world much, much better than we do or can that overwhelms our reason -- at least, that's my current theory.