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Saturday, January 24, 2004


Strange Syntax:
When Lieberman is asked how his faith would affect his politics, he paraphrases a now-famous Kennedy line, telling voters, "I am a presidential candidate who happens to be Jewish, not the other way around."
So Lieberman is not "a Jewish who happens to be a presidential candidate?" The quote would work if Lieberman would say "to be a Jew" instead of "to be Jewish" but in American English, calling oneself or someone else "a Jew" seems to be considered less polite than saying oneself or someone else "is Jewish."


Freedom of Speech in France: Dressing up like an Orthodox Jew and giving a Nazi salute while shouting "Heil Israel" is contemptible; but prosecuting that individual for violating "hate crimes" laws [link found on Little Green Footballs] is authoritarian and unworthy of the free society France purports to be. France's record in combatting anti-Semitic violence was weak until recently, but its government shouldn't try to redeem itself by stifling political speech, even speech that is offensive and insulting. [Note: Somehow, I originally misread this story as coming from Quebec, and I've edited the post to correct my error.]


Conspiracies: The Dalek Conspiracy. The Moloch Conspiracy. (See also here.) The Pollock Conspiracy. The Bullock Conspiracy. The Bolick Conspiracy.


A real-estate ad: Are you moving to Cambridge? I'm looking to sell my apartment and move out by June. Two bedrooms (one of them large, and a study that can work as a third bedroom), two bathrooms, two working fireplaces, building with historic charm, many new fixtures. On Mass. Ave.; two minutes' walk from Harvard Yard, five minutes from the Harvard Sq. T stop, ten minutes from Harvard Law School. Roughly 800 sq. ft. I've had a wonderful time living here for the past five and a half years.

Write me e-mail if you're seriously interested.


Perhaps Shmata is the Greek plural of Sh'ma. Also, my father asks whether, if Lieberman gets some pro-Jewish law passed that benefits his district, it's correct to call it pork.


Still More Reader Response to Liberals on Communism: It's the weekend so people seem freer to share their recollections about the topic, so here goes one more round. I suspect it will be the last installment, but who knows? I hope readers find what other readers have to say as interesting as I do.

Let me add two of my many college encounters with regard to the Soviet Union and the communist bloc. When I took economics 101, in 1966, the textbook was Samuelson, of course. Inside the back cover was a graph comparing the gross national products of several countries over a long period of time (since 1900, I think). What it showed was that the US had the largest GNP, but it had grown through a series of severe booms and busts. The Soviet Union's GNP was still somewhat lower than the US's, but since the mid-1930s (the Five Year Plans, I guess) it had grown in a straight, sharply rising line (rising faster than US GNP at any point except major booms), that it had never experienced any downturns, and that it would quite clearly surpass the American GNP in the near future that was just off the edge of the book. This, then, was the "knowledge" that economic students at Brown received, in the mid to late 1960s; they certainly would not have thought of themselves as Soviet apologists for repeating it, as another occasion showed.

I was arguing about the economic merits of communism and capitalism with a liberal friend who was an economics graduate student. Deferring to his greater knowledge, I humbly brought up the East Germany vs. West Germany comparison. He replied that in fact the East German economy was larger and stronger than the West German economy, and that East Germany even produced better cars. That would be the two-cycle, lawnmower-engine Trabant, I guess. Unfortunately, at the time, I did not know the Trabant. But the conversation taught me a useful lesson: Get the facts; impressions cannot trump misinformation.

. ..................................

I was reading your posts on liberals and communism over at and it reminded me of an experience I had while a graduate student at Brown. I was sitting down waiting for a talk to begin and my putative advisor was talking to another professor who asked her what she thought about the then-newly released Black Book of Communism, since her specialty was in post-Soviet politics. She sort of sniffed and said, "Well, it's really a biased perspective. It's certainly not the whole story."

I think that sort of sums up how a lot of liberals felt about the USSR. It certainly had a lot of disagreeable features, they thought, but the visible egalitarianism seemed really appealing. All you have to do is to read Barrington Moore's The Social Origins of Dictatorship and Democracy, where he explicitly (in the introduction) argues that the communist road to modernity was no more wrenching or destructive than the liberal or fascist one.


When I was in elementary school and high school, the teachers would often say things like the following:

Communism is the best system in theory, although capitalism may work better in practice.

The Native Americans lived under a basically communist system, and everyone was happy and no one starved, so it's obvious it's better when people do it right.
In general capitalism and communism were presented as equally valid choices with communism perhaps holding the moral high ground. This was pretty shocking and memorable to me, since my family had escaped a communist country when I was very young.


UPDATE: Another reader writes:

. . . Modern liberals/moderate-leftists, I think, are not the descendants of the communists of old. They are rather Mensheviks, at the radical end, and the 'social reformers' against whom Marx ails, at the moderate end. A welfare state is entirely antithetical to Marxist theory, as it is an abhorrent compromise with the bourgeoisie. Therefore, I cannot say that the experience of the USSR need tell us anything about the
impact of liberal policies on the United States. Perhaps if liberals understood that they are not necessarily on the same political bench as the communists, there would not be so much sympathy for communist regimes.


Then Again You Could Change the Subject and Bash the Right: Then there is the following response, typical in my experience of one sort of blogosphere reaction whenever either "liberals" or "the left" are criticized. I interject my comments:


I'm eager to move on from the recent flood of posts beating up liberals for not apologizing sufficiently for the reds amongst them.
People are reporting their experiences with often self-righteous persons who turned out to be wrong. I see no "beating up" behavior. To the contrary several noted similar reactions by conservatives. Nobody claimed that liberals were themselves communists. Only that they continued to express sympathy for tyrannical regimes. This is called "anti-anticommunism" which is not itself to be a communist. But I guess I don't blame this reader for his eagerness to "move on." As the ironically named "Move-On.Org" has demonstrated, we must always "move on" immediately from Democrat peccadilloes, to dwell endlessly on those of Republicans or the Right. Indeed, many have not "moved on" from McCarthy or Nixon. "Moving on" is apparently done on a one way street.

Can we talk about the conservatives who, dollar-signs in their eyes, can't say enough nice things about Red China *today*?"
I have been to the PRC and I am well aware of the serious abuses of dissidents there and the lack of political freedoms which is to be condemned and resisted. I tried unsuccessfully to get my official tour guide admitted to the US, but though the PRC gave him a visa after he quit his state job, he was turned away by US immigration officials in Beijing after I had arranged his admission and scholarship to a local college. And we all watched Tiananmen Square first with hope and then with horror.

Nevertheless, there is no question that China's movement towards a market economy has greatly benefited large numbers of the p blic, though not everyone of course. In fact, from large cities to small, one is simply in awe of the increased prosperity all around you. You are only allowed to tour some cities on formal tours such as I was on, but this includes a lot of different size cities and towns. And in the 1990s tour guides were amazingly candid about the bad as well as the good. Much more progress needs to be made but progress has undoubtedly been made. Just listen to the people talk there, quite freely, of the horrors of Mao's Cultural Revolution. It seems at every historical site, the story is the same: this temple was used as a stable during the Cultural Revolution, or this has been "restored" (read: completely rebuilt) from having been trashed during the Cultural Revolution. I could go on and on. None of this is to apologize in any way for the current Communist party rule in China. It is simply to note that when even a brutal regime such as the PRC liberalizes economically in the direction of the market to some degree, even without political reform, the lives of its people improve markedly. An important lesson to learn.

Or the ones who were happy to sweep under the rug any inconvenient truths about death squads in Latin America &c. when the death squads were on the right? (And there are plenty of autocratic, oppressive, vicious governments in the world *today* that have no shortage of defenders on the U.S. right wing.)
This is the typical association of tyrannical regimes with "the Right" because the regimes are not communist. Remember when the Soviet communists were called the "conservatives" when they resisted Gorbachev's reforms? Even if this categorizing makes sense in the foreign context, these "rightist" regimes have no connection with, nor bear any relationship to, the American "right." More relevantly to this thread, you do not ever hear American conservatives or libertarians extolling the virtues of so-called "right-wing" dictatorships as some sort of m sbegotten but well-motivated model, the way liberals and the left continue to express sympathy with left-wing dictatorships such as that in Cuba. (I view Chile as a different and more difficult case. There you did and still do see some Americans on "the Right" expressing sympathy for the Pinochet regime--as do many Chileans--but the facts of its rule and how it came to power are deeply contested and I do not intend to explore them here.)

How about the conservatives who keep trying to trot out the "American Civil War wasn't about slavery, but about federalism, and the Confederates were really fighting for freedom" story?
The debate about what the Civil War was "really about" are longstanding and fascinating, but hardly map the liberal-conservative divide. And even the Southern-sympathic view of the so-called "war of Northern aggression" concedes the terrible injustice of slavery, while condemning the North for its racism and accusing it of being motivated more by nationalism and economics than a concern for slaves. Indeed, you hear this sentiment quite frequently from those on the left who want to condemn America rather than give the US any credit for ending slavery. Sound familiar?

It's disingenuous to spend multiple posts talking about the motes in the eyes of liberal professors, when conservative policymakers and pundits can hardly look at each other for the clashing of the two-by-fours.
Disingenuous? Liberal professors? Clashing of two-by-fours? Characterizing past and, in some cases, continued sympathy for regimes that killed or immiserated millions as a mere "mote" in the eye exemplifies the very phenomenon I and others were reporting. Thanks.


Liberals & Communism: Randy and Sasha's posts on the alleged soft-spot some liberals had for the Soviet Union during the Cold War brings to mind the closing line of Irving Kristol's 1952 Commentary essay on civil liberties and Communism. While noting Joseph McCarthy was a "vulgar demagogue," Kristol argued that there was reason to suspect more than a few of McCarthy's most vociferous critics -- the anti-anti-Communists -- were indeed soft on Communism. He then concluded (and I paraphrase) that there was one thing most Americans knew about McCarthy, and that was that he, like them, was unequivocally anti-communist. Yet about the spokesmen for American liberalism, they knew no such thing. Needless to say, this is arguably the most controversial thing Kristol ever wrote.

UPDATE: I fail to see how anything in the above passage consists of "gloating" about some on the Left's past inability to see the true evil of Communism, nor do I accept Brad DeLong's suggestion that I "praise or excuse" McCarthy simply by noting the parallels between my co-bloggers' reflections on liberals and Communism, and Kristol's 1952 assessment of the anti-anti-Communists. (Indeed, at least one of DeLong's commentators is as flabbergasted by this interpretation as I am.)


Covering the Judiciary Committee Memo "Scandal": Jack Shafer’s article in Slate on media reporting of the Senate Judiciary Committee memo scandal, highlighted by Eugene below, is definitely worth a read. He points out how much of the coverage, especially that in the Boston Globe, has been way overblown. Shafer’s bottom-line: The Senate staffers’ actions may have been wrong, and perhaps even deserving of censure, but they are hardly the "crime of the century." Indeed, there is no allegation that anyone surreptitiously gained access to another staffers computers through hacking or another nefarious means. [Note: Contrary to Mathew Yglesias’ suggestion, Senate staffers did not “break into” Democratic staff computers, nor does Shafer say that accessing the files was "okay."]

Shafer also makes the broader point, a point which merits underlining, that the decision of some media outlets to focus on the acquisition of the memos, rather than their content, is quite out of character. As Byron York noted, in a piece Shafer cites approvingly, "One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in how they were obtained. "One might expect most journalists—normally the recipients of leaks and protectors of leakers—to be more interested in what the documents say than in who leaked them."

As evidence for this point, consider that illegally or unethically obtained documents have often surfaced in the context of judicial nominations. Last year, Senate Democrats sought to use stolen documents to impugn the integrity of 11th Circ he code of judicial conduct. The draft opinion made lots of news, but there was little, if any, discussion of how the unreleased opinion made it into the hands of the press.

In the end, Shafer "can't help but think there's a journalistic double standard operating here in which partisan leaks to conservative journals and journalists . . . are treated as capital crimes, but partisan leaks that wound Republicans are regarded the highest form of truth telling." He may be right.

UPDATE: The Frozen North takes issue with my post, but but I take issue with his characterizations of the underlying facts and their implications.

For additional background, the GOP staff snooping involved accessing Democratic files by clicking on the “My Network Places” icon on the Windows desktop and accessing unsecured, unprotected files on the network drive. There was no hacking, no stolen password, no accessing of individual Democratic staff computer drives. If we’re getting into analogies, this is not like walking into someone’s unlocked office and copying their files, but rather like copying files left out in a common area. This does not mean accessing the files was not a slimy thing to do, but I do believe it affects just how slimy it is – and may make all the difference legally. Moreover, as I understand it (and contrary to the Frozen North's claim), a Republican staffer did let Democratic staff know about the security hole, but it remained unfixed for months. Again, this doesn't mean copying the memos was not slimy, but it makes the allegations less severe.

I also think Frozen North’s spin on the official Republican response is off. Unlike that of some outside conservative groups, the official GOP response has not simply been to say "that's what you should expect, etc." Staffers were placed on leave and when the Democrats asked for a formal investigation, the Republican Committee Chairman gave them one without delay. While it increasingly appears there was no illegal conduct, and it is still possible that one or more of the staffers involved will be punished for violating ethical standards, if not Congressional rules.

Finally, I would note that it is not Democrats who Jack Shafer or I critique for making this a "big deal," but journalists. Journalists are typically the first to ignore the seamy ways in which secret information is obtained in favor of celebrating its content. The departure from this norm is particularly noticeable here because, unlike in the other cases I noted, there was no clearly illegal conduct involved. In other words, I would expect the Democrats to be outraged (as would the Republicans were the shoe on the other foot), but I would also expect more media coverage of the memos content.

RELATED NOTE: I blogged on the substance of the memos, and the resulting allegations of ethical improprieties by Elaine Jones of the NAACP Legal Defense Fund, here and here. In a nutshell, some of the memos suggested Jones sought to delay nominations in order to affect the outcome of a case in which the Fund was a party, prompting several right-wing groups to file a complaint with the Virginia State Bar. Since the allegations were first made, Jones has announced her retirement from the Fund. Some readers have e-mailed suggesting a connection, but I am not so sure. At this point, I bel eve Jones' conduct, if it was as is alleged, was certainly unethical, but is unlikely to result in any formal sanctions.


More about Latin: Remember my previous post about Latin. Now, Hanah links to a nice Economist article about the modern-day popularity (such as it is) of Latin.

Finally, on Latin, remember that the plural of me is us, and that the plural of us is I. So a double plural is a singular, but you go from the objective to the subjective case. It's like a helix.

Also, via Garrett, Laser Monks.


New Arab Peace Initiative: This new initiative seems worth taking seriously, especially because it undercuts the deal-breaking Palestinian demand for a "right of return" to Israel. As an opening offer, it's a good one; I can't imagine that if the Arab states are serious about this, they would ultimately object to minor border modifications to allow Israel to absorb some of the Judean settlers in return for compensatory land grants from pre-1967 Israel (and many Israelis, in fact, would be pleased to exchange the Gush settlements in Judea for hostile Israeli Arab towns like Uhm al Fahm--towns that Israeli Jews are afraid to even drive through). Moreover, settling the Arab-Israeli conflict in one fell swoop seems far more sensible than the current piecemeal approach.


Race-based peremptory challenges of judges: See the FURTHER UPDATE to this post.


More on liberals on Communism: The other day, I said, briefly:

Another note on defending the USSR: Let me put in a note about another aspect of the fall of Communism. Many people on "my side" have suggested that the fall of Communism tells us something meaningful about the feasibility of American-style leftism or Western European-style social democracy -- either that it should make liberals revise their predictions of the economic impact of their proposals, or that it should make liberals think twice about the ethics of their philosophy. I think that the fall of Communism tells us very little directly on either of these points.

That post was just a quickie, and I did get one e-mail that said, just as briefly: "And I think that it does." Randy's last post gives me a chance to develop the thought slightly:

One response of the socialist-leaning to the fall of Communism was, "Now we've learned that we need to have some capitalism to produce what we socialists want to redistribute." (Compare with Randy's characterization below of liberals who sympathize with the idea of Communism but "conclude that it is impractical to take the principle that far.") Some conservatives and libertarians sneer at that response, but it's not clear to me why it's wrong as a logical matter.

Of course, I think it's wrong as a moral matter (I don't like the Communist ideal even in principle), but I mean it's a sensible conclusion for a socialist faced with this new fact. Someone with Communist ideals may once have favored Communism, based on the simple-minded principle that "If I want X, let's have a society that mandates X," which of course ignores behavioral responses to the X regime which might make the society both unstable as a practical matter and carrying a huge extra human cost as a moral matter. (The former is relevant or all Communists, the latter is relevant for those Communists who also value certain personal freedoms, a la George Orwell.)

Now, the fall of Communism unveils both the instability of the system and (for those who didn't see it before) the huge human cost. Why not say, "Now I realize that the optimal implementation of Communist principles, under real-life conditions!, is really only an extremely watered-down version of Communism, i.e., Sweden." In other words, keep your principles, but realistically revise their implementation (being appropriately embarrassed about ever defending the Soviet Union in the first place).

There may be circumstances where it's appropriate to change your core moral principles, e.g., change from being a communist to being a libertarian. I don't think we have a good idea what motivates those changes. Some people could look at slavery, introspect deeply on the nature of slavery, and conclude that slavery is bad because it violates self-ownership, and based on self-ownership, also come to oppose modern Western regulatory and redistributive states. Others could look at slavery, also introspect deeply, and conclude that slavery is bad because it prevents people from flourishing to their fullest potential, and come to favor a redistributionist system that makes sure everyone is wealthy enough to take advantage of opportunities for flourishing. I tend toward the first, but have never been able to justify my choice by anything deeper than deep moral intuitions.

So, to repeat, there may be circumstances where it's appropriate to change your core moral principles, e.g., change from being a communist to being a libertarian. I'm not sure that the fall of the Soviet Union is one of them.


More Reader Response to Liberals on Communism: My posts on liberal sympathies for communist regimes seems to have struck a nerve. While a few still deny it or continue to offer apologies, most write to tell their own similar experiences--including some very recent. Here are some excerpts. (BTW, I never post the names of correspondents unless given permission to do so.)

I find it hard to imagine that your assertions are even controversial. Very much the same sort of thing is going on today among some liberals. Many of them have learned not to pop off too loudly in the post-9/11 world, but there's still a not-insignificant undercurrent of opinion that says we should be struggling to understand "root causes" of radical Islam--with the clear implication being that American-style classical liberalism (as amended!), and all its evil effects on the world, are the "root causes." There's still a subset of liberals that's just incapable of making sound moral judgments. (Not that there isn't a similar subset of conservatives.)


I'd like to add another voice of agreement with you on this one. I had similar conversations with liberals pre-1989. One I particularly remember is my high school AP comparative government teacher in the fall of 1989; he argued at length that we shouldn't judge; that the people of not only the Soviet Union but of Eastern Europe had chosen a system of greater stability and safety than ours; and that Tiananmen Square may have been necessary from a Chinese perspective. In college in the early 90's, I continued to hear people claim that it wasn't communism that had failed, but Stalinism, and that Gorbachev was in the process of building the real, true, successful communism which would be better than either Stalinism or capitalism.

I would add, though, that I don't think this phenomenon is confined to liberals. I've heard pro-business conserv tives argue that the reformed Chinese communist party, Pinochet, Suharto, and Lee Kwan Hew's governments were leading their countries to bright futures and were better than democracy would be for them.


. . . . I think many liberals saw socialism in theory as a noble ideal. (This view ranged from seeing it as a purely theoretical ideal that couldn't work in practice to something that might work in part (a la early labor England or Sweden) to something that might be made to work in the right circumstances.) From this perspective, the Soviet Union betrayed the ideal into something really evil under Stalin, got less bad under Kruschev, but still had not affirmative contribution to make to the noble ideal. By contrast, China and Cuba, despite flaws, still seemed to have a chance of developing (at least some of) the noble ideal aspects of socialism.


I was very much struck, when reading Joseph Heller's Good as Gold by his "proposal", put I think into Henry Kissinger's mouth, that as the USA is a good place to be rich and the USSR was a good place to be poor, we ought to exchange our poor for their rich. This is meant to be farce, of course. I do think, however, that as with Swift's Modest Suggestion, Heller thought his satire started with universally accepted truths. I think that the statement, if you are poor, you're better off in the USSR would have been accepted by many '70s and '80s liberals.

I just graduated from a rather liberal law school (I know that doesn't narrow it down a lot) in 2002. I was sitting in a class wholly unrelated to contemporary politics (it was actually about medieval Icelandic sagas) when I hear a classmate say "Communism was a good idea. It just wasn't put into practice right." I paraphrase the wording, but not the meaning. I think it's hearing stuff like that from otherwise well-meaning liberals today - he girl was about 22 at the time - that makes your posts about liberals defending the USSR so believable to me.
Yes, we all know that conservatives and libertarians can sometimes say objectionable things too, with which not all conservatives or libertarians agree. But (a) they should be and often are criticized for it (sometimes by other conservatives or libertarians), and (b) I am speaking about a pretty widespread phenomenon, not an isolated remark by a crazy person--though I took pains to attribute it only to some liberals.

Because the political principle "from each according to his abilities to each according to his need" appeals to many modern liberals--which accounts for many of their policy preferences--it is natural they would sympathize with a a regime that, in their mind at least, is founded on a more radical implementation of this principle, though they may regret what they think are the "unintended consequences" of these regimes, or they may conclude that it is impractical to take the principle that far--which is why they are themselves liberals and not communists.

This is no different than, because many libertarians are attracted to the "nonaggression principle" that more than a few libertarians are individualist anarchists--a phenomenon that no knowledgeable libertarian would deny whether or not he or she was himself or herself an anarchist--though, of course, anyone claiming that all libertarians were anarchists would obviously be mistaken.

Friday, January 23, 2004


Judiciary committee computer files scandal -- or is it? Jack Shafer at Slate takes a meta-look.


Huh? David Edelstein, in his review of Win a Date With Tad Hamilton:
The gimmick of Win a Date With Tad Hamilton!, directed by Robert Luketic from a script by Victor Levin, is that the movie star's bacchanalian lifestyle is on the verge of derailing his career, so his agent (Nathan Lane) and manager (Sean Hayes)—both named Richard Levy, a joke that will certainly give a chuckle to Spike Lee, Franco Zefferelli, Mel Gibson, and a few others...
Can someone help me out here? Is there a producer, or someone, named Richard Levy? Just curious, as it happens to be my grandfather's name. What's so funny about it to Hollywood insiders?

UPDATE: Asked and answered; thanks to everyone who e-mailed. What those three have in common is outstanding charges of anti-Semitism against them, so the idea that Hollywood is run by interchangeable Jews, etc etc. Nothing to do with that particular Jewish name.


More from the Omaha principal: From the Omaha World-Herald:
Two Westside High School students say they were using satire to make a point: The school shouldn't have a special award to recognize the achievement of black students.

Trevor Richards, the Rambo twins' choice for Westside High's "Distinguished African American Student" award, moved from South Africa to Omaha six years ago.

That's why Paul and Scott Rambo, 16-year-old juniors, blanketed Westside on Monday with posters touting a white youth from South Africa for the "Distinguished African American Student" award.

"The posters were intended to be satire on the term African-American," Scott Rambo said.

The resulting flap left all three boys suspended from Wednesday's classes and drew national attention to the mostly white school. The Rambo twins stand by their actions, keeping them at odds with Westside officials.

"It's disruptive," Westside Principal John Crook said. "It was offensive to the individual being honored, to people who work here and to some students."

Crook defends the idea of giving a special honor to a top black student. Those who feel otherwise should have talked to him, he said, rather than upsetting the tone of Martin Luther King Jr. Day with posters that some viewed as mocking. . . .

Paul and Scott Rambo . . . spent weeks discussing the unfairness of an award solely for blacks. Blacks are eligible for every other award at Westside, they figured, so what was the point of a special honor? . . .

"They were pointing out an absurdity with an absurdity," said Michael Duffy, a junior who said he was reprimanded for collecting more than 160 signatures in support of the three boys. "That is the basic rule of satire."

But Principal Crook said the timing and the nature of the posters was insensiti e, preventing a healthy dialogue.

"My role is to make sure we have a safe environment, physically and psychologically," he said. "We can't allow that kind of thing to be hung up on our walls." . . .

Duffy said the incident is forcing Westside to face racial issues that sometimes are ignored.

Crook agreed. "Obviously, it's a teachable moment. We all need to be more sensitive."
(Thanks to reader Patrick Charles for the pointer.)

     Well, it is a teachable moment: A good moment for teaching that school officials are bound by Tinker v. Des Moines (1969), the Court's leading First Amendment case on speech in public schools.

     Tinker, which upheld students' rights to wear black armbands as an anti-Vietnam-War protest -- a highly contentious position, which many other students doubtless disagreed with -- wasn't limited to "sensitive" speech, or to speech that maintains a "psychologically" "safe environment," or to speech that fosters what principals view as "healthy dialogue," or even speech that avoids "mocking" or "upsetting the tone" of a holiday. (See here for a few more legal details.) Tinker did allow for the restriction of genuinely disruptive political speech, but only if there was evidence of real disruption to school activity, and not just some people being offended by the viewpoint that the speech expresses.

     There are actually reasonable arguments for why K-12 schools should have complete authority over in-school speech. Justice Black's dissent made those arguments. But it was a dissent; the majority squarely disagreed with Justice Black -- and, I think, with the position that Principal Crook espouses.


Bay Area Hotel Recommendation: Continuing today's consumerist theme, I had a great experience last weekend at the Holiday Inn Express in Mountain View, Ca. Having stayed on Holiday Inn Expresses before, I wasn't expecting much, and only stayed there because the rest of my extended family was staying there for a bat mitzvah celebration. It turned out to be one of the nicest places I've ever stayed. Great room, with free high speed internet access (they would even lend you a laptop!), VCR, DVD, CD, nice toiletries, sink, stove, and refrigerator; nicer than a typical Westin, except no bathrobes. The Continental breakfast was far above the norm for such things, the lobby had two computers available with high-speed internet access 24 hours, a coffee machine with various high-end drinks available free 24 hours, an extremely helpful staff; I could go on and on. I moved on to the AAA 4-Diamond Sheraton Fisherman's Wharf in San Francisco, which wasn't half as nice. (Edit: And the HI Express was only $85 a night!)


Moving your stuff? Hanah and I also didn't have a great experience with Giant Van Lines, which picked up Hanah's stuff from Arlington, Va., on December 30, and didn't deliver it until over 2 weeks later, when they had predicted 3-5 days. Also, they damaged a bookshelf and a dresser, and didn't put the bed together properly.


Moving your car? Avoid A AAAdvantage Auto Transport, and National Auto Transport, which is the broker that set us up with A AAAdvantage.

     Our car was picked up from Boston on Dec. 29, and didn't arrive in L.A. until three weeks later, Jan. 20. My wife was told that it didn't even leave Boston until Jan. 9. The contract said the expected delivery time was 8 to 10 business days, though it acknowledged that it might take more; so they weren't in violation of the contract. But it still seems to me that three weeks to move a car cross-country (at least 4 business days than they said was likely) is way too long.

     A AAAdvantage also didn't communicate well with us -- on Jan. 12, for instance, they told us that the car would be arriving at the L.A. terminal on Jan. 15, and the L.A. terminal would then call us to schedule a delivery, perhaps for Jan. 16, if we were lucky. But no-one called on the 15th. No-one called on the 16th. Finally someone called on Sunday, Jan. 18, when we were out of town, to say that the car had arrived. So not only was there an extra 3-day delay, but they didn't even call us on the 15th (the date they gave us) to warn us that there would be a delay.

     On top of that, A AAAdvantage tended to blame miscommunications on National, which is the company with which we had our contract, and which routed the job to A AAAdvantage. In my book, that's pretty unprofessional, and reflects badly on both companies. I think that's probably a sign that it's better to deal directly with the mover, rather than with brokers like National, which is what we'll do in the future. But in any case a mover that really cared about customer service would realize that customers rightly expect the contractor and the subcontractor to be properly communicating, rather than pointing the finger at the other one.

     In an case, just a warning to readers. We certainly won't be dealing with either of these companies again in the future, and you might want to avoid them as well.


Hanah discusses e-mail forwarded rants and anti-spam laws.


Retiarius: My friend Jack Schaedel passes along this word of the day, from the people who came up with one word for "to kill every tenth person as a means of collective punishment."

UPDATE: Sasha tells me that, etymologically speaking, "retiarius" more or less corresponds to "netster." So maybe in a sense we are all retiarii.


You Can Say That! Overlawyered reports that two Southwest Airlines customers lost their "hostile racial environment" lawsuit based on offense taken when they heard a flight attendant say "einee meinee mienee moe," a portion of a rhyme that has long since lost any trace of its racist origins ("catch a tiger by the toe," the only version I've ever heard, was once "catch a nigger by the toe"; neither line was used by the flight attendants, who said "catch a seat, we gotta go"). While it's nice to see a sensible outcome from the trial, let's give blame where it's due, too--the judge should have tossed this case out on summary judgment, and spared Southwest the expense of the trial. Instead, Judge Kathryn Vratil ruled, "The court agrees with plaintiffs that because of its history, the phrase 'eenie, meenie, minie, moe' could reasonably be viewed as objectively racist and offensive." Come on! There was no evidence of intent to discriminate, the phrase einie meenie etc. certainly isn't objectively racist, and how can "offensiveness" be objective? Besides, merely being offended by a stray comment does not mean someone has suffered discrimination under the law. I think I will be sending Judge Vratil a free copy of You Can't Say That!


e a bit too far.

     And while in other areas, such as interpretation and application of law, appellate judges theoretically review the trial judge's ruling from scratch, the trial judge's ruling is still tremendously important, and as a practical matter involves a great deal of discretion. There's thus vast room "for subtle life-experience biases" in decisions by judges. I have no strong opinions about peremptory challenges generally, as to judges or jurors; but I think this basis for distinguishing judges and jurors doesn't uite work.

UPDATE: Reader Vince Lombardi (the coach's grandson) writes:
Just to follow-up on your post of the California practice of being able to get rid of one judge per case. We have the same approach up here in Washington state -- we call it an "affidavit of prejudice." Each side gets one affidavit per case.

Despite the name, you really don't have to explain why you think the judge is potentially biased against you. You can only affidavit the judge at the beginning of the case -- after the judge makes a discretionary ruling of any type, the right to strike the judge is no longer available. The reason for this restriction is doubtless obvious -- we don't want litigants dumping a judge just because they don't like the most recent ruling.

I think it's a good practice. First, it is used very rarely. We all worry that a judge is going to take offense at being "affidavited" and tend to avoid doing it unless it's absolutely necessary to protect a client. Indeed, many larger firms require individual lawyers to get prior approval from management or a committee before striking a judge.

Second, it's a good way to track what lawyers think about a particular judge. In many of our Counties, statistics are kept regarding how many times a judge is affidavited. When a particular judge is struck more often than the mean over a period of time, it's a pretty good indication of what the bar thinks about the judge's abilities and fairness.

Finally, I think it curbs -- a bit -- the tendency to black-robe syndrome.

Just one practicing lawyer's two cents. Love the site, keep up the great work.
I'd never heard the phrase "black-robe syndrome" before, but I think I can guess what it means.

FURTHER UPDATE: Patterico likewise argues that judges have tremendous discretionary authority, especially given the limitations that California law i poses on pretrial appeals.

     Eric Muller also asked whether race-based peremptories of judges could be challenged much like race-based peremptories of jurors; he suggests that even if there is a constitutional ban on such peremptories, in practice it couldn't be enforced, since each side gets only one challenge, so one can't really show a pattern of race-based strikes. Patterico responds.

     Here's my thought: Lawyers might want to challenge jurors partly based on the juror's race or sex (set aside whether it's right or constitutional, and just focus on whether they'd want to) because often that's one of the few things they know about a juror, and because they may have only a few moments in which to decide whether to accept a juror or not. They generally know much more about the judge, or can at least find it out within the time allotted to decide whether to challenge him. Considering the judge's race and sex is thus going to be much less useful than considering a juror's race or sex.


What, no bracha? "Israel Rabbi Offers Prayer for Web Porn Browsers":
"Please God, help me cleanse the computer of viruses and evil photographs which disturb and ruin my work . . ., so that I shall be able to cleanse myself (of sin)," reads the benediction by Shlomo Eliahu, chief rabbi in the northern town of Safed.
(Thanks to GeekPress for the pointer.)

UPDATE: Reader Michael Zorn suggests that "perhaps there's a tallit that can be placed around the computer."


More on Matrilineal Descent in Judaism: Orthodox Jewish readers have written in to defend the proposition that since Sinai, descent in Judaism has always been matrilineal. For the Orthodox take on the issue, as well as a good example of how traditional rabbinic scholars analyze an issue (essentially reasoning backwards to find plausible language in the Torah supporting the idea that a custom or law has always existed in Judaism, but ignoring contrary historical evidence), see here. I don't have any links handy (UPDATE: Here is a Conservative rabbi's take, including his acknowledgement of the historical changeover, based on the research of Prof. Shaye Cohen), but my understanding of the actual history of the issue is that, as another correspondent put it, matrilineal descent came in Roman times (or approximately 1,000 years after Sinai), and was consistent with, and perhaps influenced by, Roman practice.
UPDATE: Eric Rasmusen raises an issue that I thought of, but was too lazy to write up: if one chooses to solely rely on biblical sources, and descent was matrilineal in prophetic times, why were Ruth the Moabite's descendants considered to be Jews? I'm sure the rabbis would say that Ruth "converted," but that's pretty clearly a post-hoc rationalization.
Eric also points out that Barry Goldwater's father was Jewish, and therefore "a Jew" patrilineally, but Goldwater was raised Christian, and never identified himself as a Jew, so I know of no modern Jewish movement that would consider Goldwater to be a Jew.


Religious beards may now be banned in French schools, says Education Minister Luc Ferry (thanks to Hit & Run for the pointer):
Discussing the plan to remove Islamic headscarves from state schools, he told a communist deputy who asked about a pupil with a beard, "As soon as it becomes a religious sign and the code is apparent, it would fall under this law." . . .

Sikhs -- of whom there are over 5,000 in the Paris area -- also wear beards because they do not cut their hair. Ferry said they might still be able to wear discreet turbans to school but did not mention their facial hair.
Seems like a textbook case of religious persecution.


American Family Association changes its mind: Late last month, I blogged (emphasis added):
Julian Sanchez at Reason's Hit & Run reports:
The American Family Association is running a meaningless online poll on attitudes about gay marriage which, they say, they'll be sending to Congress. Presumably, they thought selection bias (who goes to the AFA website, after all?) would yield a huge margin against gay marriage. Except, so far, it's not quite working out. I'm dying to see them forced to send a "petition" to Congress showing upwards of 60 percent support for gay marriage, with another 8 to 10 favoring at least civil unions. That, or watching them try to weasel out of doing so. Have fun. (Hat tip: Amy Phillips.)
Makes sense to me -- people who run meaningless online polls (and who, I suspect, were intending to promote the poll as if it were meaningful) deserve to have them equally meaninglessly backfire.

UPDATE: As I expected, there was an obviously non-AFA e-mail circulating urging supporters of gay marriage to vote at the AFA site; a reader was kind enough to forward it to me. (The e-mail also said that it was urging people to vote whatever their views, since "The point here is to have a LEGITIMATE cross section of people voting in this poll"; but even if this claim was sincere, it was unsound, since no matter who got the e-mail and acted on it, the result would almost certainly not be a "legitimate cross section" in the sense of a representative cross section.)

     So the AFA wanted a poll that was unrepresentative because it mostly reflected the views of the unrepresentative chunk of the population that visits the AFA site. Instead, it got a poll that was unrepresentative because it largely reflected the views of the unrepresentative chunk of the population that got the e-mail. Bunk either way, but at least the way it turned out it's bunk that hoisted the original would-be bunk perpetrators with their own petard.
Survey says . . . weaseling out. Wired News reports (thanks again to Sanchez at Hit & Run for the pointer) that
[AFA representative Buddy Smith said:] "It just so happens that homosexual activist groups around the country got a hold of the poll -- it was forwarded to them -- and they decided to have a little fun, and turn their organizations around the country (onto) the poll to try to cause it to represent something other than what we wanted it to. And so far, they succeeded with that."

Of course, no such poll can be said to represent an accurate picture of popular opinion. But, clearly, the AFA had hoped Congress would take the numbers it planned to produce as exactly that kind of evidence.

Now, Smith says, his organization has had to abandon its goal of taking the poll to Capitol Hill.

"We made the decision early on not to do that," Smith admitted, "because of how, as I say, the homosexual activists around the country have done their number on it."
Oh, how horrible! Those "homosexual activists" have "done their number" on the poll, so it represents what "the homosexual activists" believe, as opposed to what the anti-homosexual activists believe. At least I like the candor: The gay activists have tried "to cause [the poll] to represent something other than what we [the AFA] wanted to." Not other than an accurate estimate of public views, which the AFA poll would never have yielded -- just other than what the AFA wanted.

     Now naturally the AFA is perfectly entitled not to report these results to Congress. And we're perfectly entitled to be amused by how perfectly their plan backf red. 'Tis the sport, indeed.


States' rights approach to proposed Federal Marriage Amendment may be working: An ABC News/Washington Post poll reports, to my pleasant surprise (see here for my fears to the contrary), that the question "Would you support amending the U.S. Constitution to make it illegal for homosexual couples to get married anywhere in the U.S., or should each state make its own laws on homosexual marriage?" yields 38% in favor of amending the Constitution, and 58% against.

     This is so even though the question "Do you think it should be legal or illegal for homosexual couples to get married?" yields 55% "illegal" and 41% "legal," and a December 2003 CBSNews/New York Times poll question "Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage ONLY between a man and a woman?" yielded 55% "favor" and 40% "oppose." Nice to see that throwing in a focus on state-by-state decisionmaking seems to make a difference (I don't think that the passage of time from December to January was the cause of the shift).

     Incidentally, several law professors and I sent a letter to a Senate subcommittee last September, opposing the FMA on these very federalism grounds; the text of the letter is here.


was himself a liberal democrat--rarely experienced the sort of arguments that conservatives heard from some liberals. Perhaps he did not even know any conservatives, so he did not experience the sorts of debates that provoked this response. Perhaps these arguments did not impress him as they did me given his solidarity with his liberal friends. Who knows?

Be that as it may, Bruce Ramsey of the Seattle Time, remembers defenses of communist regimes -including China and Cuba--exactly as I do, almost word for word. We are either both deluded in our recollections, this is an amazing coincidence, or the phenomenon was quite real and pervasive--again among some liberals:

Your memory of liberals is right. I am 52, old enough to remember liberals being that way. They were not Marxists, nor professional liberal spokesmen like Harry Truman, but ordinary emotional Americans who, on this subject, would go all nonjudgmental. Who were we to judge a China that kept everybody fed, or a Cuba that taught everybody to read? How can we say it's better to live in a society with eight different brands of toothpaste? We can afford to live in a society that spends $XX billion a year on dog food and women's cosmetics and chewing gum. The Chinese need to make sure everybody eats--and communism does that. Under Chiang they starved, under Mao they eat. Communism wouldn't work here, but it's the right system for them. A bit harsh maybe, but it's better than starving. Besides, we had exterminated the Indians, enslaved the blacks, imprisoned the Japanese Americans. Who were we to get all high and mighty? What arrogance.

The general line was that any American who argued against communism in Russia, China, Cuba, etc., was failing to see it from their point of view. After all, they had chosen communism, had they not? And they must have had a reason for it. Let us respect their choice, because in their circumstances we would have chosen it, too.

I remember all that. It does not surprise me that people have forgotten it.
After 1989, everyone except a communist had been an anticommunist before. Just ask my liberal correspondents.

PS: In case anyone is wondering, I consider "liberal" to be an honorable word, and in The Structure of Liberty: Justice and the Rule of Law, I call the approach I favor the "lib ral conception of justice." For many years I called myself a "classical liberal"--which indeed I am--until I decided it was confusing some people and others thought I was obfuscating. Indeed, one of my complaints about modern liberals these days is that you cannot count on them to be as genuinely liberal as they used to be when you need them to be. But that is another topic.


Big spenders (continued): In reference to Wednesday's post, "We're All Big Spenders Now," some readers believe the comparison between Bush's spending increases and Democratic proposals are unfair, because neither is necessarily a reliable indicator of future spending patterns. Under one theory, a Democratic president facing a Republican Congress will be forced to exercise spending restraint, resulting in lower overall spending growth than when a Republican President and Republican Congress join together for a spending splurge (as has happend over the last three years). Perhaps. It is certainly the case that after the Republican take over of Congress, spending was held in check -- but this only lasted through 1998. During the last two years of Clinton's presidency, the Congressional appropriators regained control of the ship and began spending like drunken sailors. So, in my view, divided government is no guarantee of fiscal restraint.

For more on the comparison of Bush and the Democratic contenders on spending, see the ruckus started by Big Dog over at Tacitus' blog.

Thursday, January 22, 2004


Another note on defending the USSR: Let me put in a note about another aspect of the fall of Communism. Many people on "my side" have suggested that the fall of Communism tells us something meaningful about the feasibility of American-style leftism or Western European-style social democracy -- either that it should make liberals revise their predictions of the economic impact of their proposals, or that it should make liberals think twice about the ethics of their philosophy. I think that the fall of Communism tells us very little directly on either of these points.


On defending the Soviet Union: Randy's correspondent wanted some smoking-gun quotes by mainstream liberals. I don't have such a source handy (though I, too, have encountered mainstream people taking that line). But I did come across this article which collects sources by very well-respected mainstream liberal economists (Samuelson, who defined the profession for a time, and Thurow and Galbraith of the MIT and Harvard economics departments, quite liberal but not fringe).

Whatever you think of Dinesh D'Souza, who wrote the article, and his assessment of Reagan, the quotes are real:

John Kenneth Galbraith, the distinguished Harvard economist, wrote in 1984: "That the Soviet system has made great material progress in recent years is evident both from the statistics and from the general urban scene. . . . One sees it in the appearance of solid well-being of the people on the streets . . . and the general aspect of restaurants, theaters, and shops. . . . Partly, the Russian system succeeds because, in contrast with the Western industrial economies, it makes full use of its manpower."

. . . Paul Samuelson of the Massachusetts Institute of Technology, a Nobel laureate in economics, writing in the 1985 edition of his widely used textbook: "What counts is results, and there can be no doubt that the Soviet planning system has been a powerful engine for economic growth. . . . The Soviet model has surely demonstrated that a command economy is capable of mobilizing resources for rapid growth."

. . . Lester Thurow, another MIT economist and well-known author . . . , as late as 1989, wrote, "Can economic command significantly . . . accelerate the growth process? The remarkable performance of the Soviet Union suggests that it can. . . . Today the Soviet Union is a country whose economic achievements bear comparison with those of the United States." br />

This doesn't fully respond to the request for more general ethical defenses of the Soviet Union, but it's not too far off, since this is the sort of thing that economists care about.


More on Defending the USSR: In response to my earlier post, Volokh on USSR, in which I related my experience as a student with some of my liberal classmates defending the USSR, a reader offers a predictable response:

Now, I can remember, from my college days, a number of campus radicals of various stripes (Spartacists, RCP's, even, ridiculously enough, self-proclaimed anarchists) who spewed this sort of drivel from time to time, but I do not recall any "liberals" making such statements; indeed, I recall that the prevailing view was that Soviet Communism, as a system, primarily focused on who would be putting the boot in whose neck at any given time, and had simply failed as a viable economic system. Indeed, if one were to publicly hold oneself forth as a liberal (by, for example, working for a Democratic candidate) in the presence of the aforementioned radicals, one could count on a deluge of invective describing oneself as a traitor, fascist, lapdog and worse. . . .

As a matter of further confusion, I fail to understand, as a logical proposition, how one could on the one had identify oneself as a liberal (meaning a capitalist who believes in a significant degree of governmental regulation of industry and the provision of social programs by the government) while simultaneously endorsing communism; a communist is, by definition, not a liberal. As Mr. Barnett insists this is nonetheless the case, can he point us to written examples of liberals (not Marxists, Maoists, etc.) expressing in writing a preference for the Soviet system?
There are a number of responses. The most obvious is that this was personal narrative of my experience growing up. Perhaps the reader did not experience this reaction because he did not challenge the USSR, proclaim his support of capitalism, or defend the US, in the presence of some of his liberal fri nds. If they were not provoked, they might not have revealed these sentiments to him. Who knows why he did not experience what I did from some of his liberal friends?

But we don't have to travel down memory lane. My son's college-age friend who expressed regret that communism in Cuba would end with Castro's passing is not a 'Spartacist, RCP or self-proclaimed anarchist.' He is just an intelligent but deluded liberal like those of some of my classmates from grade school through law school. That these expressions of sympathy were not put into writing does not make them any less real.

I should also add that I was deliberately careful in my original post to attribute this to some of my liberal friends, though I can assure the reader that it was enough that I came to expect these responses and needed to develop counter arguments to meet them. There is no question that many hard core liberals, especially liberal politicians such as Truman, Kennedy and Humphrey to name just three, were also anticommunists--indeed leading anticommunists who did indeed take grief from radical leftists. These politicians needed not only to be elected by a generally anticommunist public but also to govern in the midst of the cold war and there is no doubt they were truly anticommunist. But I was speaking of ordinary liberals without such responsibilities, not sparticists, who while supporting these politicians nevertheless in private conversation and debate would articulate exactly the sentiments I related earlier: Although perhaps a bit behind in material things at present, the USSR was a more fair and just society reflecting a value judgment by its people that placed equality above consumerism and the accumulation of needless riches. Who was to say that its people were not happier than ours (implying without actually asserting that they were)? And they either doubted the abuses of power known to exist there, or excused it as necessary temporary expedients on the path to a pot ntially better society--just the way so many liberals today cut Castro the slack they would never cut a noncommunist tyrant.


Presidential candidate embraces author of book called "Stupid Black Men": Oh, sorry -- my mistake; it's actually called Stupid White Men. Funny how an author who wrote a book Stupid Black Men (not as an ironic title) would be rightly reviled, while when he writes Stupid White Men, we hear barely a peep? In any case, the author's documentary also apparently includes fiction mixed in with the fact. (Warning: I have not personally checked the assertions on that page, but I've found David Hardy, and others who have made similar claims, to be quite trustworthy; here's a similar page on Stupid White Men.) And the author has also apparently slammed the very military campaign that is one of the key items on the presidential candidate's resume. Slate reports on this third item:
[Wesley] Clark embraced [Michael] Moore's support, calling the best-selling author a "fantastic leader." In the press release, Clark's campaign lauded -- in the first line no less -- the "Academy Award winning director," whom the general himself described as an "enormous talent." For his part, Moore promised to do everything he could to help get Clark elected.

Moore hasn't always been so taken with Clark, at least if his Oscar-winning film Bowling for Columbine is to be taken at face value. Indeed, the documentary repeatedly slams the shining moment in Clark's career: stopping Serb aggression in Kosovo, the highlight of his tenure as NATO supreme allied commander. In fact, Moore suggests that the bombing tactics employed by NATO—and thus Clark—were in part to blame for the massacre at Columbine.

An intriguing theory, to say the least. Moore starts the case against Clark in the opening monologue of the film. "It was the morning of April 20th, 1999," our narrator i ce, more carnage: "On the hit list were [a] local hospital and primary school."

Another subtitle reads: "One hour later."

Back to Clinton: "We all know there's been a terrible shooting at a high school in Littleton, Colorado. ..."

The connection is clear—the Columbine shooting coincided with the Kosovo bombing, violent acts that happened on the same date. One was committed at the hands of two disturbed teenagers, the other on the orders of Wesley Clark. . . .

Moore anticipated criticism of his pick. In his endorsement letter, he headed off attacks from readers who might be inclined to e-mail comments like "Mike! He voted for Reagan! He bom ed Kosovo." Moore assures them that Clark is now staunchly "anti-war." (Forget the 30-year Army veteran's authorship of Winning Modern War and Waging Modern War.)
Read the Slate piece for more on Bowling for Columbine -- though the article is limited to the view-about-Kosovo question, and doesn't address the factual criticisms of Bowling, or the little Stupid White Men matter.


Law clinic for legal assistance to servicemembers: Michael Krauss, a law professor at George Mason University, reports:
I am proud and pleased to announce that the Clinic for Legal Assistance to Servicemembers (CLAS) has now been organized and is operating. The executive director, Joseph Zengerle, is a West Point grad and Viet Nam vet, as well as being a tremendous guy (and, yes, a lawyer).

I encourage you to spread the news of the creation of this clinic to all those you think might be interested. An account has been set up for CLAS at the GMU Foundation. If anyone wishes to contribute, checks should be made payable to the George Mason University Foundation, with the cover letter specifying that the donation is earmarked for CLAS.

You can reach Joe [at George Mason University School of Law, 3301 North Fairfax Drive, #404, Arlington, VA 22201] . . ., or by email at jzengerl [at]
Joe Zengerle further reports (as you might gather, they don't yet have a Web site, or I'd be linking to it):
George Mason law school has an unusually large number of students who have served in the military or have a strong patriotic interest in supporting the armed forces, and who are eager for a clinical experience. The school, whose faculty share their interest, has preliminarily confirmed with defenseofficials the existence of unmet legal needs among active duty members of the services and their families (including those who have been mobilized from the reserve forces). Seeking to match those interests with the need, the Clinic for Legal Assistance to Servicemembers (CLAS) began formative activities in January, 2004. Initial law student participants, who include a retired Navy captain, a retired Army lieutenant colonel with enlisted experience, a woman who spent seven enlisted years in the Air Force including the first Gulf war, and a former Senate staffer who hails from a devoted Marine family, will work with t e clinic's executive director, Professor Joseph Zengerle, a Vietnam veteran who instituted the seminar on Homeland Security and the War on Terror at the law school. The clinic is now conducting a needs assessment to determine the gaps students might help fill, which commenced with a meeting at Walter Reed Army Medical Center. Studying substantive laws like the Servicemembers Civil Relief Act, collaborating with bar and nonprofit service organizations, establishing compliance with applicable requirements under federal law and other authorities, and structuring the organizational and academic elements of a new clinic, are simultaneously ongoing. CLAS just received its initial donation, a private grant to match the first $25,000 in contributions.
I had the pleasure of visiting at George Mason in Fall 2001; it's an excellent law school, and seems like a great home for this sort of project.


Centrally control, regulate, and clean up the Internet: Here's part of the Royal Society for the Prevention of Cruelty to Animals reaction to the notorious hoax site:
Unfortunately, the worldwide web is not controlled or regulated centrally. There is not, therefore, any central authority to which we can complain about this, and other such sites. The RSPCA has written to the Internet Service Providers (ISP) who are hosting this particular site to express our concerns and to ask them to close the account with immediate effect.

One of the key problems is the international nature of the internet as well as the fact that it is increasingly easy for individuals to set up websites quickly and cheaply. National authorities are looking at ways of controlling material on the internet and there are many moves under way to try to create legal and practical ways of regulating the web and cleaning it up.


Be good to insects: The Royal Society for the Prevention of Cruelty to Animals is apparently complaining about cruelty to insects ("maggots, cockroaches, . . . and ants") on a TV show, the Times (London) reports, as well as cruelty to rats. The Daily Ablution has more on this. The RSPCA is a private charity, but as best I can tell it seems to play a significant role in law enforcement as well; I do not know what English and Australian laws regarding proper behavior towards insects are.


Samuel Beckett? Slate's Chatterbox reprints a transcript of a conversation between reporters and President Bush at a ribs diner in Roswell, N.M.. Chatterbox's reaction: "Today's lunchtime press 'pool' transcript from the Nothin' Fancy Caf? in Roswell, N.M., was scripted by Samuel Beckett." My reaction: This is a savvy politician (1) having some fun with the journalists (and I don't mean angry scream fun, but friendly sparring partner fun), and (2) nimbly dodging questions that he quite understandably doesn't want to answer in this environment (why on Earth would he want to respond to "What do you think of the Democratic field, sir?"?), a skill that politicians must have to survive. (Note that I'm not trying to overpraise the President here -- you can say what you will about the quality of his policies; I'm saying only that the interchange is evidence of his political savvy rather than of his postmodernism.) You decide for yourself (and feel free to say that it's a floor wax and a dessert topping); here's the transcript:
Remarks by the President to the Press Pool
Nothin' Fancy Cafe
Roswell, New Mexico

11:25 A.M. MST

THE PRESIDENT: I need some ribs.

Q Mr. President, how are you?

THE PRESIDENT: I'm hungry and I'm going to order some ribs.

Q What would you like?

THE PRESIDENT: Whatever you think I'd like.

Q Sir, on homeland security, critics would say you simply haven't spent enough to keep the country secure.

THE PRESIDENT: My job is to secure the homeland and that's exactly what we're going to do. But I'm here to take somebody's order. That would be you, Stretch -- what would you like? Put some of your high-priced money right here to try to help the local economy. You get paid a lot of money, you ought o be buying some food here. It's part of how the economy grows. You've got plenty of money in your pocket, and when you spend it, it drives the economy forward. So what would you like to eat?

Q Right behind you, whatever you order.

THE PRESIDENT: I'm ordering ribs. David, do you need a rib?

Q But Mr. President --

THE PRESIDENT: Stretch, thank you, this is not a press conference. This is my chance to help this lady put some money in her pocket. Let me explain how the economy works. When you spend money to buy food it helps this lady's business. It makes it more likely somebody is going to find work. So instead of asking questions, answer mine: are you going to buy some food?

Q Yes.

THE PRESIDENT: Okay, good. What would you like?

Q Ribs.

THE PRESIDENT: Ribs? Good. Let's order up some ribs.

Q What do you think of the democratic field, sir?

THE PRESIDENT: See, his job is to ask questions, he thinks my job is to answer every question he asks. I'm here to help this restaurant by buying some food. Terry, would you like something?

Q An answer.

Q Can we buy some questions?

THE PRESIDENT: Obviously these people -- they make a lot of money and they're not going to spend much. I'm not saying they're overpaid, they're just not spending any money.

Q Do you think it's all going to come down to national security, sir, this election?

THE PRESIDENT: One of the things David does, he asks a lot of questions, and they're good, generally.


The New Hampshire primary in action: According to CNN,
Clark, meanwhile, took a few minutes to bag groceries at a Goffstown supermarket Thursday. Cashier Carolyn Creeden said the former NATO supreme commander was "pretty good at it," despite dropping a woman's bag of cookies during a discussion of the new Joint Strike Fighter.
UPDATE: David Plotz's piece is also dead-on.
Every New Hampshirite is liable to stumble across a candidate now and then—"Can you spot me on the bench press, General?"—but most don't seek out candidates. It's a small posse who drive the process. There are 1.3 million people in New Hampshire, but only 10 percent of them will vote in the Democratic primary, and only a tiny fraction of them are actively participating. The same people attend event after event. I have started to recognize them, or at least the types: the Medicare crank, the corn subsidies bore, the property taxes man ...


Separated at Birth? Andrew Jackson and John Kerry.


Blogger and lawyer Pejman Yousefzadeh should be on the radio in Southern California this afternoon (AM 600, around 4 pm), talking about the Do Not Call list.


Congress enacts school choice program for D.C.: The Institute for Justice, a leading defender of school choice programs reports that "[t]oday, the U.S. Congress passed an omnibus spending bill including authorization for a school choice program for low-income students in the District of Columbia." According to the details that the IJ put up,
The "D.C. School Choice Incentive Act of 2003" creates a five-year
scholarship program in the nation's capital for low-income, K-12 students, beginning in the 2004-05 school year. Congress allocated $13 million for the first year of the program and $1 million for related administrative and research expenses -- along with $13 million each for D.C. charter schools and D.C. Public Schools to implement Mayor Anthony Williams' three-sector education improvement initiative. . . .

Student Eligibility: D.C. residents who qualify for the federal free and reduced-cost lunch program (185 percent of poverty, or about $34,000 for a family of four in 2003). About 37,000 children will be eligible. Family income may rise to 200 percent of poverty before the scholarship is revoked. Priority is given to students in public schools “in need of improvement” under No Child Left Behind. The bill also encourages preferences for the lowest income families.

Selection Criteria: Students are accepted on a random basis.

Scholarship Value: Up to $7,500 or cost of tuition and fees, whichever is less. Participating schools may not charge scholarship students more than non-scholarship students.

D.C.P.S. Average Per Pupil Cost: $11,649 in 2000-01[.]

No. of Participants: Approximately 2,000. . . .

Evaluation and Accountability: The Secretary will also commission a five-year longitudinal study to evaluate the academic achievement of scholarship recipients, parent satisfaction, and other issu s.

Regulations for Private School Participation: Participating schools may not discriminate against scholarship applicants on the basis of race, religion, or ethnicity. Single-sex schools are allowed. . . .


percase">Letter from man who defended himself and his family: Dan Gifford points to this Chicago Sun-Times item:
[In late December,] someone broke into the DeMar family home in Wilmette through a dog door, stealing a television, an SUV and the keys to the home.

The next night, Hale DeMar was prepared for a return visit. With his children upstairs, DeMar, 54, shot burglar Morio Billings, 31, in the shoulder and calf, police said.

Billings was caught at a nearby hospital and charged with felony residential burglary and possession of a stolen car . . . .

DeMar was cited with breaking Wilmette's ban on handguns and with failing to update his firearm owner's identification card.

The misdemeanors are unlikely to bring jail time. Wilmette Police Chief George Carpenter did not criticize DeMar for protecting his family but said homes are safer without handguns.

DeMar, in a letter sent to the Chicago Sun-Times, is now speaking out:
Village Trustees ... Stick to Parade Schedules & Planting our Parks

Many of us have experienced a sense of violation upon returning to our homes, only to find that someone else has been there. Someone else has trespassed in our bedrooms, looting and stealing that which is readily replaced. Many of us, still haunted by that violation, will never again have a sense of security in our own homes. Few, however, have awakened to realize that they had been violated as they slept in their beds, doors locked, as family dogs patrolled their homes. For me, the seconds until I found my children still safely tucked in their beds were horrifying. The thought that a young child may have been hurt or abducted was incomprehensible.

The police were called and in routine fashion they came, took the report and with little concern left, promising to increase surveillance. Little comfort, since t e invader now had keys to our home and our automobiles. The police informed me that this was not an uncommon event in east Wilmette and offered their condolences.

What is one to do when a criminal proceeds, undeterred by a 90-pound German shepherd, an alarm system and a property ... lit up like an outdoor stadium? And now, he had my house keys and an inventory of things he'd like to call his own. Would the police patrol my dead-end street as effectively the second time as they had the first? Would my small children be unharmed the next time? Would the career criminal be satisfied with another automobile, another television or would he feel the need, once again, to climb the staircase up to the bedrooms, perhaps for a watch or a ring or a wallet, again risking little?

Would my children wake to find a masked figure, clad in black, in their bedroom doorway, a vision that might haunt them for years? Would the police come again and fill out yet another report, and at what point should I feel comfortable that the 'bad guy' got everything he wanted and wouldn't return again, a third time?

I went to the safe where my licensed and registered gun was kept, loaded it for the very first time and tucked it under the mattress of my bed. I assured my frightened children ''that daddy would deal with the bad guy ... if he ever returned.'' Little did I imagine that this brazen animal was waiting in the backyard bushes as I tucked my children into bed.

Fifteen minutes after bedtime, the alarm went off. Three minutes after the alarm was triggered, the alarm company alerted the police to the situation and 10 minutes later the first police car pulled up to my home, but only after another call was made to 911, by a trembling, half-naked father. I suppose some would have grabbed their children and cowered in their bedroom for 13 minutes, praying that the police would get there in time to stop the criminal from climbing the stairs and confronting the family in their bedroom, dreading the soun of a bedroom door being kicked in. That's not the fear I wanted my children to experience, nor is it the cowardly act that I want my children to remember me by.

Until you are shocked by a piercing alarm in the middle of the night and met in your kitchen by a masked invader as your children shudder in their beds, until you confront that very real nightmare, please don't suggest that some village trustee knows better and he/she can effectively task the police to protect your family from the miscreants that this society has produced.

This career criminal had been arrested thirty times. He was wanted in Georgia and for parole violations in Minnesota. How many family homes had he violated, how many innocent lives were affected, how many police reports went into some back office file cabinet, only to become some abstract statistic? How is it that rabid animals like this are free to roam the streets, violating our homes and threatening the safety of our children?

If my actions have spared only one family from the distress and trauma that this habitual criminal has caused hundreds of others, then I have served my civic duty and taken one evil creature off of our streets, something that our impotent criminal justice system had failed to do, despite some thirty odd arrests, plea bargains and suspended sentences.

Hale DeMar, Wilmette


Slam Scalia: As I've mentioned before, Dahlia Lithwick's "Supreme Court Dispatches" are generally a delight to read, and are often quite insightful. She's a very good writer, and a colorful one; and I realize that part of that color is the injection of her own viewpoints. Her piece yesterday on the latest Supreme Court advising-defendants-of-the-right-to-counsel case was particularly fun and informative.

     But then along comes this:
Scalia asks if it really serves the greater good to warn criminals that "if you got an attorney, he'd find some gimmick. . . . You have a right to know that you have the right to get off, even if you're guilty," adding, "We want people to admit they're guilty."

But Justice Scalia may want even the innocent to do that.
Huh? Why would Scalia possibly want the innocent to admit they're guilty?

     I assume the author must be joking, though that's largely because the line can't possibly be serious, not because it's particularly funny. Presumably the joke is of the "He's so pro-prosecution, damn-the-rules-just-lock-them-up that he'd even like the innocent to plead guilty" variety.

     Except the trouble is that such a joke can only be funny if it's in some sense apt -- if you're saying it about someone who really is in the pro-prosecution, damn-the-rules-just-lock-them-up camp, or close to it. But Scalia is most certainly not in that camp. Time and again, Scalia has actually shown himself to be a stickler for the rules, even when they help the defendant. See, e.g., Carella v. California (1990) (Scalia flanking Stevens on the left, as to the Sixth Amendment jury trial rights of criminal defendants); Maryland v. Craig (1990) (Scalia flanking Blackmun on the left, as to the Confrontation Clause rights of accused child molesters, partly because of a concern about wrongful convictions of the innocent); County of Riverside v. McLaughlin (1991) (Scalia flanking Souter on the left, as to the Fourth Amendment rights to prompt probable cause hearing, partly because of a concern about wrongful detention of the innocent); Almendarez-Torres v. United States (1996) (Scalia flanking Breyer on the left in joining Stevens opinion as to the Sixth Amendment right to have certain sentencing factors determined by the jury); Neder v. United States (1999) (Scalia flanking Breyer and in some measure Stevens on the left, as to the Sixth Amendment jury trial rights of criminal defendants); Apprendi v. New Jersey (2000) (Scalia flanking Breyer on the left in joining Stevens opinion as to the Sixth Amendment right to have certain sentencing factors determined by the jury). All but Apprendi were actually separate opinions (dissents or concurrences in the judgment) written by Scalia.

     Now of course Scalia also often votes against criminal defendants, and one can fault some or all of those votes. One can also argue that Scalia is sometimes too focused on the formal rules, and too tolerant of procedures that may comply with the formal rules and yet lead innocent people to be convicted. But it seems quite clear that Scalia is a big believer in following the rules, even when criminal defendants are benefited by this; and a pretty big believer in preventing i nocents from being wrongly treated as guilty, at least when the rules are on the innocents' side.

     So I don't see anything particular apt about the "But Justice Scalia may want even the innocent to do that" line. Even if it's intended to be a joke, it doesn't seem to be a particularly fair one. And it doesn't seem to be particularly funny, unless one thinks that any slam of Scalia is per se funny.


Times Have Changed: Justice Thurgood Marshall, dissenting in United States v. Roth (1972): "In my view, every citizen who applied for a government job is entitled to it unless the government can establish some reason for deny in the employment." It's hard to imagine a Justice writing this today. Reading USSC opinions from the early 1970s (the Court's liberal heyday) is always interesting, because the underlying assumptions, methodologies, etc., have changed so much.


Chicago in midwinter: Michael Green gives a pretty good sense of what it's like.

If you're nearby and able to venture out of doors, however, you might want to come by this conference on constitutionalism in Israel and Palestine. Speakers range from distinguished North American academics such as Gordon Wood and Charles Taylor to supreme/ constitutional court justices from Australia and South Africa to legal academics, civil liberties activists, and former cabinet ministers from Israel and the PA.


Carol Moseley Braun supports right to bear arms: Edward Boyd reports, quoting OpinionJournal's Political Dairy (it's subscription only, so I haven't checked it myself):
. . . Before she withdrew from the presidential race, Carol Moseley Braun shocked a D.C. debate audience when she said she would sign a bill to repeal the District's gun ban. "I think under the Constitution people have the right to and should be able to have guns," she said. . . .
UPDATE: Matt Rustler confirms this from a Washington Times article, and comments further.


"Black" and "white": An amusing and insightful story from InstaPundit:
My brother -- who doesn't look any blacker than I do -- is sometimes asked by Nigerians (in Nigeria) whether he is black. At first he thought this was odd, but one explained "We have Americans coming here all the time who say they are black, but they look white to us."


Unplaced Bet: I wish I had gotten around to placing a bet against Howard Dean (and Clark) last week, when I was convinced that the likelihood of his winning the Democratic nomination was way overblown. I noticed that Iowa was still competitive, and considered that Iowa often offers a surprise, that Dean seemed to be faltering in a variety of ways, that sober Democrats would notice that Dean's chancing of beating Bush are slim, and that, if my hunches re Iowa were correct, once the aura of inevitably wore off Dean after a relatively poor showing in Iowa, the race would be wide-open. And I saw no great attributes to Clark, other than him not being Dean. Can't say I had any idea it would be Kerry that would emerge so strongly, though. (edited for poor grammar!)



Want to come up with your own conspiracy theory about Bush? Don't let Al Franken, Michael Moore, and have all the fun! Use this handy George W. Bush Conspiracy Theory Generator to come up with your own conspiracy theory!*

* This tool may not be used to create Democratic presidential candidate speeches or generate content for without the express permission of


Should you buy freedom for slaves? Readers of The New York Times Op-Ed page will know that Nicholas Kristof has recently purchased the freedom of two young girls in a brothel. It appears that the young girls were held there against their will and tricked or coerced into joining in the first place.

As an economist of course I wondered whether buying slaves will lower net enslavement. I can think of at least two general mechanisms suggesting that Kristof's purchase will increase the number of slaves in the longer run, or at least not lower the number of slaves:

1. Slaveholders and brothel owners presumably hold profit-maximizing inventories. Depletion of inventory will lead to replacement under a variety of assumptions.

2. I suspect that Kristof, a Westerner, overpaid for the two slaves. Slave owners expect such higher prices in the future, which may lead to more slaveholding. Furthermore the cash flow may stimulate investment in more slaves. Even for firms in advanced economies, current cash flow predicts investment better than does real interest rates.

Overall we can think of the slaveholder as more able and more eager to get more slaves. That being said, the marginal slaves will be harder to trick or capture than the previous slaves. So we cannot be sure whether net slavery will go up or down. Kristof's efforts also have a publicity effect, which may either help or hurt the slave trade. On one hand the Cambodian government may be embarrassed and crack down. On the other hand, the slaveowner has received amazing free publicity. On net, Kristof's actions may be less heroic than they would appear at first glance.

Michael Kremer of Harvard has done some interesting work on how to best stop elephant hunting. Sometimes the best solution is for a entral authority to buy up many elephant tusks and later dump them on the market, ruining the price and discouraging further tusk collection. I would not advocate that Kristof resell his two women back into slavery, just to lower future prices. Nonetheless such economic considerations once again illustrate the gap between doing something to feel good about oneself, and actually achieving useful results.


Academia/ political theory news: Princeton's Provost, and my graduate school advisor, the political theorist Amy Gutmann, has been selected the next President of Penn.


Volokh on USSR: Catching up after returning to town, I want to commend Eugene for his moving post yesterday on American supporters of the Soviet Union: A little bit of embarrassment seems to be in order. I would add that this support was widely advocated by some American liberals throughout my childhood and continuing up through college and law school in the 1970's. I was regularly told by classmates that the Soviet Union was a morally better place than the US. Although perhaps a bit behind in material things at present, it was a more fair and just society reflecting a value judgment by its people that placed equality above consumerism and the accumulation of needless riches. Who was to say that its people were not happier than ours (implying without actually asserting that they were)? When it came to the USSR were these sympathizing liberals knaves or fools? For all their intelligence, sophistication and learning, clearly they were self-deluded fools, from whom a little embarrassment was always in order, but it was not to be.

My son recently told me about how one of his good friends, a really sweet, smart, artistic, and athletic college student who my wife and I have known since grade school and of whom are very fond, was saying that it was a pity that, when Castro died, it would be the end of socialism in Cuba. My son was aghast. I took the opportunity to tell him that, despite what may be said today, this was what many American liberals had said about the USSR right up to 1989, after which history was immediately rewritten as the Berlin wall was being dismantled and dictators like Ceausescu were being deposed or executed, to assert that we all stood shoulder to shoulder in opposing the tyranny that was the USSR, that they had always opposed communism, and that anticommunism was never a partisan matter. Oh, but it was...and to a lesser extent still is. ust ask them now about Cuba.

Wednesday, January 21, 2004


Emigration from Israel: Easily missed in this story about emigration from Israel is that most of the 68,000 immigrants from the former Soviet Union who have since left Israel were individuals not registered as Jews. This means that they were not Jewish according to Jewish law, which requires Jewish matrilineal descent. Israeli authorities will not register an individual as a Jew unless the Orthodox rabbinate OKs it based on the rabbinate's understanding of Jewish law.

The emigration of so many "non-Jewish" immigrants is not surprising. Many of these individuals have Jewish ancestors, often on the father's side (which was considered more relevant in Soviet society), and consider themselves to be Jews. Yet, for example, they cannot get married to a Jew in Israel because the Orthodox rabbinate controls marriage, nor can they get buried in a Jewish cemetery.

Formal conversion would be an option, but from everything I've read, the Orthodox rabbinate in Israel has intentionally made it very difficult for individuals who seek to do so to formally convert. I attribute this to (1) traditional Jewish reluctance to seek or encourage converts; (2) ethnocentrism, which is very prevalent among the ultra-Orthodox (and, to a lesser extent, Israelis more generally), though completely against Jewish law and tradition; and (3) a belief that most "Russian" converts will vote for non-Orthodox parties, reducing Orthodox political strength. I think the last explanation is the strongest, because the Orthodox establishment has been noticeably lax about approving the (dubious in a variety of ways) Jewish bona fides of Ethiopian immigrants who are much more likely to sympathize with the Orthodox view of matters such as separation of religion and state.

It would be easy enough of the rabbinate to be lenient with potential "Russian" converts. After all, the "Russian" immigrants will all be fulfilling the great mitzvah (commandment) of living in the land of Israel, they have thrown in their lot with the Jewish people, and, simply by virtue of living in Israel, they will be more observant of Jewish law than most Jews in the rest of the world, eating mainly or solely kosher food, observing Jewish holidays, not working on Shabbat, etc.

Besides, the whole matrilineal descent standard is (and here I'm going to offend some of our observant Jewish readers) a crock that should be abolished. While the Orthodox like to pretend that all of Jewish law was given to Moses at Sinai, it's obvious that matrilineal descent is a relatively recent innovation, as a quick reading of the Bible makes it clear that the norm in biblical times amongst the children of Israel was a patrilineal descent standard. Why the change occurred is not 100% clear, but is likely a result of the traumas of exile, when many Jewish women were raped, and a patrilineal descent rule would have been a disaster. To the extent the "we always know who the mother is" rule could still carry weight, modern DNA testing allows us to know who the father is, too. There is no reason to keep the matrilineal descent rule except that it's existed for almost 2,000 years; given that the patrilineal descent rule existed for almost as long, why not just call it a tossup and allow either matrilineal or patrilineal descent, combined with a demonstrated practical link to the Jewish people, to determine Jewishness? (The Reform and Reconstructionist movements in the U.S. have already done this; the Conservative movement hasn't, for fear of losing its "halachic" (Jewish law) bona fides. But if the Conservatives can't bring themselves to abolish a rule as tenuous and dumb as matrilineal descent, than the movement is basically useless as a modern, liberal halachic movement anyway).

UPDATE: This is the kind of email that drives me crazy: "laws like this
about whose mother's, mother's, mother was a real jew and israel still wo ders why europe compares israel to south african apartheid sounds so very much like half-coloured, quarter-coloured, one-eighth coloured
rhetoric to me." Response: (1) While the ethnocentrism noted above is a legitimate problem, and Jewish identity can be heriditary (but can also be based on religious conversion), it is not a racial, or even narrowly ethnic, concept; Jews come from all racial groups, and anyone can become a Jew. Judaism is, however, a religion of tribal origin, and thus, especially in its Orthodox manifestations, not in line with modern liberal sensibilities. It hardly follows that Israeli rules based on religious tradition are "racist," though, as obvious from my post above, they should hardly be immune from criticism. (2) Relatedly, in Jewish religious tradition, and in Israeli law, there is no such thing as a "half-Jew", "quarter-Jew," etc., because the concept is not a racial one. One is either considered to be a Jew for religious purposes, or one is not. Because Judaism is not a universalistic religion, and only imposes its obligations on "Members of the Tribe," there needs to be a way to distinguish members from non-members, a concept foreign to Christians and Moslems (edit: Islam has the worst of both worlds from a liberal perspective: "tribal" patrilineal descent and an imperialistic belief that all people should be Moslems). This makes Judaism less liberal in one sense, but more liberal in another--with the exception of the much reviled late-Hasmonean period, its leaders during periods of independence were immune to the concept of wars of conquest for purposes of forcing the heathens to follow the One True Faith. As for Israel, it needs some way to distinguish Jews form non-Jews, to be able to serve its (secular) purpose as a place of haven and refuge for the world's Jews, without being overwhelmed by millions of Third World immigrants (and, indeed, the citizenship laws, based on this secular purpose, are far more liberal in this regard than the religion-based rule of who gets to be registered as a Jew). The problem with Israel's rules regarding who is a Jew for internal purposes is not that they are racist, but that they allow the entrenched Orthodox minority to dictate the resolution of the issue to everyone else, and that Orthodox political power means that the issue matters for who gets to marry, etc.; (3) I think Germany reformed its laws very recently, but until it did so, a person of German "racial" origin whose ancestors had not lived in Germany for generations and who spoke no German was entitled to German citizenship, while grandchldren of Turks residing in Germany for decades were not (and I believe the former half of the above is still true). And Germany had no religious tradition to fall back on, nor a 2,000 year old history of persecution of Germans requiring a safe haven (though there was post-WWII persecution). In Ireland, I believe, grandchildren (or is it great-grandchildren?) of Irish emigrants are automatically entitled to claim Irish citizenship, with even less cause for such rules than have the Germans. Would my correspondent please point me to all the articles comparing Germany and Ireland to South Africa because of their "racist" immigration and naturalization policies? Only Israel comes in for such criticism regarding its immigration and naturalization policies, and the reason, my dear correspondent, is that you and others have absorbed European anti-Semitic traditions.


Nominee Claude Allen: President Bush has renominated Claude Allen, an African American deputy secretary of HHS who used to work for Jesse Helms, to the Fourth Circuit. An academic expert on Helms once told me that unlike every other southern Senator, Helms never actually renounced his segregationist past, and indeed never publicly supported any civil rights legislation, regardless of whether it applied to the public or private sector. I haven't investigated this personally, and would be happy to be corrected. But if Helms's views on civil rights were indeed so extreme that he never could bring himself to support legislation banning discrimination by state and local governments, I would very much hesitate before supporting one of his former aides, African American or not, for a federal judgeship.

Update (elaboration): In response to criticism in the blogosphere, (1) If Helms never accepted that government should not be allowed to blatantly discriminate, Helms should have been, but was never quite, considered beyond the pale. Those who worked for him should be tainted somewhat by their willing association with, and support for, him. The U.S. has been notoriously unwilling to honestly face its recent segregationist past; the Trent Lott incident was a nice change, and hopefully not the last example of such change; (2) the fact that Allen is black does not exempt him from criticism for working for a segregationist. Allen may have thought that Helms's leadership on other issues was more important than Helms's contempt for the Fourteenth Amendment. However, (a) beyond his hostility to blacks (Helms came to public attention as a media celebrity who opposed integration) Holmes was most known for his opposition to abortion and his hostility to homosexuals; and (b) a judicial candid te, at least, should be judged for his respect for the Fourteenth Amendment above any purely political stances he may have. Neither (a) nor (b) leads me to have much confidence in Allen as a judicial candidate, though it he may be a perfectly appropriate nominee to HHS; (c) I said I would be hesitant to support Allen, not that he absolutely couldn't win my support. He could start by explaining why he would choose to work for an unrepentant segregationist. I hold him to the same standard in this regard as I'd hold a white candidate. He has no special reason to respond to this criticism, but neither should his race give him immunity from it. And again the caveat: if Helms did indeed repent regarding segregation, my criticism is moot. But merely the fact that he hired a black man who shared all or large parts of his agenda doesn't mean he did so.


Likely First Amendment violation: According to the Omaha World-Herald,
A small group of Westside High School students plastered the school Monday with posters advocating that a white student from South Africa receive the "Distinguished African American Student Award" next year.

The students' actions on Martin Luther King Jr. Day upset several students and have led administrators to discipline four students.

The posters, placed on about 150 doors and lockers, included a picture of the junior student smiling and giving a thumbs up. The posters encouraged votes for him.

The posters were removed by administrators because they were "inappropriate and insensitive," Westside spokeswoman Peggy Rupprecht said Tuesday.

Rupprecht said the award always has been given to black students. . . .

Rupprecht said disciplinary action was taken against the students involved but, citing student privacy policies, she declined to specify the penalties or what about the students' action led to them.

Karen Richards said her son, Trevor, who was pictured on the posters, was suspended for two days for hanging the posters. Two of his friends also were disciplined for hanging the posters. A fourth student, she said, was punished for circulating a petition Tuesday morning in support of the boys. The petition criticized the practice of recognizing only black student achievement with the award.

One of the school's students, Tylena Martin, said she was hurt by the posters and the backlash she said it caused. . . .

Westside has fewer than 70 blacks out of 1,843 students this year. . . .

[Karen] Richards said her family moved to Omaha from Johannesburg six years ago. Trevor, she said, "is as African as anyone."
     Under Tinker v. Des Moines Indep. Comm. School Dist. (1969), speech may be restricted if it's disruptive -- but not because it's "inappropriate and insensitive," something that many students no doubt thought about the anti-Vietnam-War black armbands that Tinker held to be protected speech.

     Of course, if a school has content-neutral rules prohibiting students from putting up posters on doors or lockers, the school may evenhandedly enforce this policy; the doors and lockers are its property, and it may bar students from using them as their own billboards. But if it's punishing students for the views that their posters are expressing -- for instance, if posters are generally allowed, either officially or de facto, but these were the only ones that were punished -- then that seems like a violation of the Tinker doctrine. Likewise for the school's punishing the student who circulated a petition "criticiz[ing] the practice of recognizing only black student achievement with the award."

     Thanks to reader Barry Jacobs for the pointer.


The Myth of the New Anti-Semitism is the title of a thoughtful review essay in The Nation. I ultimately disagree with what I think is the author's crucial assertion, that Islamic anti-Semitism is the product of a political conflict, and will dissipate when that conflict is resolved. Rather, I think anti-Semitism in the Moslem and Arab world has taken on a life of its own, and will persist, perhaps less virulently but still dangerously, even if the Israel reaches a peace agreement with its relevant neighbors. Ironically, many of the early Zionists themselves were under the mistaken impression that anti-Semitism could be undermined by getting rid of its purported root causes--in their case, they internalized the prevalent leftist notion that the cause of anti-Semitism was Jews serving as exploitative middlemen in capitalist Gentile societies, rather than having their own Socialist state in which Jews would become a "normal nation." Irony abounds.


Statistics and the SAT: The the L.A. Times anti-SAT op-ed, which I criticize in the post below, has one especially noteworthy statistical claim: "[W]hite students score 206 points higher on average than nonwhites" on the SAT, "according to Psychology Today."

     To begin with, this seems to be a misquote of the Psychology Today article, which says "Whites outscore African Americans on average by 206 points." African Americans are fewer than half of nonwhites in America, and less than 40% of the nonwhites taking the SAT (note that the SAT statistics treat Hispanics as nonwhite).

     Second, it is whites and Asians who score much higher on average than blacks and, to a lesser extent, Hispanics. According to Time, Oct. 27, 2003, the racial breakdown of SAT averages was:
  1. Asians: 1083.

  2. Whites: 1063.

  3. Mexican-Americans: 905.

  4. Other Hispanics: 921.

  5. Blacks: 857.
(I assume that this is the same data on which the Psychology Today account is based, since it also shows a 206-point gap between whites and blacks.)

     The Times op-ed quote is still correct as to blacks (rather than "nonwhites"), and it does make an important point. But don't the numbers have a somewhat different impact -- one much less compatible with the "evil whites oppressing nonwhites" subtext that one often hears in connection with the SAT -- when one sees that the gap is between Asians and whites on one side and blacks and Hispanics on the other, rather than between whites and nonwhites?

UPDATE: Reader Michelle Dulak reports:
I was curiou what the mean "white"/"nonwhite" score comparison would look like, so tried to find out. The College Board site gave the 2002 breakdown of test-takers as 65% white, 11% black, 10% Asian, 5% "other" Hispanic, 4% Mexican, 4% "other," 1% American Indian. I left out the American Indian and "other" categories, because they weren't in the data you quoted, and tried weighting them by fraction to get an overall mean. The mean for those 95% of test-takers was 1026. The mean for "non-white" test-takers (counting Hispanics as "non-white") was 950. The white/non-white gap is therefore 113 points, not 206 -- if you count Asians as "non-white."

Of course putting it like that obscures the obvious fact that the "non-white" distribution curve is shaped like a two-humped camel. Still . . .
I haven't checked the math here, but it sounds about right to me.


Terry Teachout, whose arts writing I've always enjoyed in Commentary, has a quote about someone who tears pages out of the books he's reading to make them easier to carry around. Teachout could never do such a thing in a million years, nor does he highlight passages in books, "even though I approve in theory of underlining, and I love reading other people?s marginalia in used books and library copies."

I, too, grew up believing (1) that owning books is good and noble and that you should own a lot if you're an educated person, and (2) that books are sacred and that you shouldn't deface them in any way. I've totally rejected both of these -- but not totally, since (1) it's still hard for me to get rid of my books, and I'm actively trying (I gave away over 100 books last year and hope to do the same this year), and (2) I don't make markings in my own books even though I believe that you should do whatever it takes to get more out of the book, because it's your appreciation of the contents of the book that's important, not the book itself. (On Teachout and the sacredness of books, see here.)

As with Teachout, this last inhibition is in some "deeply buried layer of my psyche." I hope to overcome it someday; I'm trying.

UPDATE: Reader Dan Schwartz (and I) recommend Anne Fadiman's Ex Libris: Confessions of a Common Reader, where she discusses this phenomenon. (Thanks to my friend the lovely and talented Stacey Tappan for giving me this book once. Anne Fadiman is the daughter of Clifton Fadiman, whose Mathematical Magpie, a collection of math-related humor and stories, I grew up with.) Anne Fadiman writes:

[J]ust as there is more than one way to love a person, so is there more than one way to love a book. [A chamberlain who was horrified when my brother left his book face down on his bedside table] believed in courtly love. A book's physical self was sacrosanct to her, its form inseparable from its content; her duty as a lover was Platonic adoration, a noble but doomed attempt to conserve forever the state of perfect chastity in which it had left the bookseller. The Fadiman family believed in carnal love. To us, a book's words were holy, but the paper, cloth, cardboard, glue, thread, and ink that contained them were a mere vessel, and it was no sacrilege to treat them as wantonly as desire and pragmatism dictated. Hard use was a sign not of disrespect but of intimacy.

Hilaire Belloc, a courtly lover, once wrote:

Child! do not throw this book about;
Refrain from the unholy pleasure
Of cutting all the pictures out!
Preserve it as your chiefest treasure.

What would Belloc have thought of my father, who, in order to reduce the weight of the paperbacks he read on airplanes, tore off the chapters he had completed and threw them in the trash? What would he have thought of my husband, who reads in the sauna, where heat-fissioned pages drop like petals in a storm? What would he have thought (here I am making a brazen attempt to upgrade my family by association) of Thomas Jefferson, who chopped up a priceless 1572 first edition of Plutarch's works in Greek in order to interleave its pages with an English translation? Or of my old editor Byron Dobell, who, when he was researching an article on the Grand Tour, once stayed up all night reading six volumes of Boswell's journals and, as he puts it, "sucked them like a giant mon oose"? Byron told me, "I didn't give a damn about the condition of those volumes. In order to get where I had to go, I underlined them, wrote in them, shredded them, dropped them, tore them to pieces, and did things to them that we can't discuss in public."

Byron loves books. Really, he does. . . .

To coin a phrase, Read the whole thing.

In other news, reader David Sands prefers BookDarts, and reader Andrew Solovay says travel-induced book-ripping happened on an episode of JAG. Reader Trevor Anderson says that book lover Bernard Levin did this too, with cheap paperbacks. I say, we'll have progressed when we do this too (write, not necessarily rip) with our imposing hardcovers!


SAT scores: Cathy Seipp properly criticizes an anti-SAT piece in the L.A. Times. I'm not an expert on the SAT, but to the best of my knowlege the Times op-ed has still more problems. Just for starters,
  1. Considering GPAs instead of SATs risks favoring students who go to schools where there's a great deal of grade inflation.

  2. Letting in the top 10% of each high school will let in students who are quite academically weak, but went to a high school where the other students are weaker.

  3. The result is not only bad for the intellectual quality of the college, but is also no service to the weaker students who will now find themselves at the bottom of the class, competing against others who are much more prepared for college.

  4. The SATs coupled with GPAs are actually quite good predictors of college performance, for all the criticism that the SAT has drawn, and to my knowledge are much better predictors than GPAs alone.

  5. That "white students score 206 points higher on average than nonwhites" on the SAT isn't a sign of bias in the SAT -- I am told that it actually slightly overpredicts college performance by black and Hispanic students -- but rather a sign of the unfortunate underpreparedness of many black and Hispanic high school graduates. This is a problem that needs attention, but letting in underprepared students into demanding college programs is probably not a solution.


Too unilateral: One of InstaPundit's readers complains to the Washington Post about one of their articles:
In addition to the selective inaccurate quoting, the Post's copy editors didn't catch the Copy Editing 101 glitch in the piece. A policy can't be "too unilateral." It's either unilateral or it's not. There are no degrees of unilateral, just as there are no degrees of unique.
     Don't let the man read the Preamble to the Constitution, which talks about forming "a more perfect union." In fact, things can be more round, more perfect, more unilateral, and more unique; that's just shorthand for "more nearly round," "more nearly perfect," "more nearly unilateral," or "more nearly unique." In the words of Webster's Dictionary of English Usage, quoting James C. Fernald, English Grammar Simplified (1946):
Adjectives expressing some quality that does not admit of degrees are not compared when used in their strict or full sense . . . .

But such adjectives are often used in a modified or approximate sense, and when so used admit of comparison.

If we say, "This is more perfect than that," we do not mean that either is perfect without limitation, but that "this" has "more" of the qualities that go to make up perfection than "that"; it is more nearly perfect. Such usage has high literary authority[.]
     Now I actually don't like "more unique"; it sounds imprecise and clumsy to me. I probably wouldn't like "more perfect," either, outside the Preamble, though that would likely be because it sounds a bit archaic. But sometimes there's just no very quick synonym that's more literally precise. And in any event, that something sounds inelegant doesn't mean that it's ungrammat cal.

     (Note also that "too unilateral" may sometimes mean "unilateral in too many instances," though that wasn't the Post's usage.)


Libertarians vs. conservatives: In response to my last post, I received this from a reader who wishes to remain anonymous:
"Prof. Cowen, just a flippant note about the difference between men who describe themselves as libertarians and men who describe themselves as conservatives:

Male libertarians are generally conservatives who want to date liberal women. For example, in law school, when guys that I knew held conservative positions would start talking to me (a liberal) in flirtatious tones, I would ask, "Aren't you a conservative"? They would always answer, "Actually, I'm a libertarian." I'm not sure if any man ever described himself to me as a conservative, and I went to law school in Texas."


"Much of the Patriot Act is neutral legislation for civil liberties": Who said that? Well, the executive director of the ACLU, Anthony Romero:
"While much of the Patriot Act is neutral legislation for civil liberties, it contains about a dozen provisions that simply go too far," Romero added. "These dangerous provisions increase the chances that innocent Americans will be swept into terrorism investigations by removing traditional checks and balances on law enforcement and oversight powers from the judiciary."
Obviously, the ACLU still has serious reservations about the Patriot Act -- a dozen bad provisions would still make for a bad law (though I personally don't see a dozen bad provisions there). But the ACLU's acknowledgement that much of the Act doesn't pose any civil liberties problems is noteworthy, I think, given the vitriolic attacks that many have launched against the Act, attacks that often didn't include such acknowledgments.


A couple of unrelated observations: It's not widely known that the song Istanbul (Not Constantinople) is not by They Might Be Giants, good as they are, but is in fact quite old. How old? Why, I was listening to it in the late '70s! The words are by Jimmy Kennedy, the music by Nat Simon, and it apparently dates from, at the latest, 1953; it was originally popularized by The Four Lads.

Also, check out the true scoop on Latin and Greek plurals (link through Hanah, who got it from GeekPress). One word: Fex.

Finally, on the Wasabi sect of Islam (thanks to Best of the Web), I also recommend Shiite-ake mushrooms. Hanah likes to drink Korange juice, while I like to drink Sunni Delight. Also, there's pie Allah mode? (We came up with all these on our own, but of course there's nothing new under the sun.)

UPDATE: Eric Rasmusen has this. And, just for more circul r reference, click here. Finally, I forgot to mention my new idea (which again, alas, is not unique with me): Gollum's Sushi Bar.

UPDATE 2: One reader "was prepared to dispute" whether The Four Lads really popularized "Istanbul" until he discovered that it was #10 in 1953 and was a gold record back when that meant more than it does today.

UPDATE 3: Reader Jonathan Steinsapir is annoyed that the song leaves out the city's original name, Byzantium (after the city's legendary founding by Byzas the Megarian). Note also that the Vikings knew the city as Miklagard, or the Great City; and that Istanbul was an alternate name for Constantinople as early as the 11th century. Query: if Glenn Reynolds were a Turk: InstanBul?


The difference between libertarian and conservatism: Jim Kalb speaks on this important topic:
"Conservatism and libertarianism are both generally viewed as right-wing. Can you spell out the main differences between them from the conservative point of view? What, in your view, are libertarianism's shortcomings?
Kalb: They're both viewed as right-wing because centralized bureaucratic control is the main engine of social rationalization at present. From a theoretical standpoint ideological libertarianism is just another form of rationalism and not at all conservative. As a practical matter though it's mostly an ally of tradition because it opposes the main current enemy, the PC social-services state. The shortcoming of ideological libertarianism is that it says that a very few simple principles are enough for the whole of government and social life. Depending on circumstances that shortcoming can cause serious problems. In practice of course things get complex. People who call themselves libertarians sometimes have a strong streak of philosophical conservatism. They might find libertarian terms a better way to explain their case to the American people and even themselves. That kind of fusionist position can work to the extent the political disputes that matter don't involve government functions that conservatives want to keep and libertarians don't. "

I would put it a little differently. I view conservatives as holding first a value-laden vision of what America should look like, involving tradition, family, and a certain sternness and emphasis on just desserts. Libertarians also hold a value-laden vision, but their rhetoric involves a greater emphasis on "liberal neutrality" and competing lifestyles. I view the competing lifestyles vision as much of a particularist value as the conservative vision (while noting I am closer to a liberta ian in this regard, but I do not give libertarianism an a priori elevation over conservatism on liberty grounds). Libertarians share the conservative emphasis on just deserts, hence the immense popularity of Ayn Rand in the libertarian movement. It is for this reason that alliances between libertarians and conservatives are often possible - they share a key value or presupposition. Modern liberals tend to emphasize beneficience instead of just deserts. My personal view is to share this value judgment with liberals (I am a determinist and usually find merit arguments unpersuasive), yet through positive arguments I get to something closer to a libertarian position. We also can (and should) use positive arguments to determine whether implementing the conservative value-laden vision, or the libertarian competing lifestyles vision, will do more for human welfare. In other words, we can make conservatism and libertarianism more compatible, and commensurable in the realm of positive argumentation, but only by dropping their upfront values into a position of secondary relevance.

That's a lot of big ideas in a medium that allows only for short posts, I do understand. I very much enjoyed Kalb's observations across the board, read the whole interview, with part three still to come, at


Secondary consequences of smoking bans: Clay Whittaker, one of the youngest bloggers, recently posted the following:
"I have just heard in the news that--as of today--Toledo bars have found a loophole in our smoking ban. As you all probably know, a few months ago a ban on all smoking in bars and restaurants in the Toledo area was passed, unless it was for a charitable event. So now the bars have started a not-for-profit corporation that charges people a buck to smoke in the bar, it than goes to their corporation: Taverns For Tots. This shows once again that you can try to beat down business with socialism, but it will fight back to the bitter end. The city of Toledo's lawyers are looking into the legality of this plan, and will no doubt file a lawsuit. I’m interested in seeing if this is, in fact, legal."

The money will be used to benefit economically disadvantaged children. Here is the original article.


Sauce for the Gander: Matthew Yglesias complains in TAP about "a new standard for honesty whereby a Democrat is lying every time his or her comments neglect to include literally the whole truth, whether or not the overlooked fact actually contradicts the claim in question." That's funny. Isn't this the same standard often used by the President's critics (including Yglesias) to label Bush a liar? I say pox on all their houses. As I've posted before, a lie is deliberately false or misleading statement. Not just any falsehood, half-truth, or mistatement qualifies -- and this is true for folks on both sides of the aisle.


We're all big spenders now: Last night's State of the Union included the usual laundry list of costly new proposals, further cementing President Bush's record as a profligate spender. Even with increased economic growth, pursuing these initiatives will further delay deficit reduction. Alas, fiscal conservatives don't have anywhere else to turn, according to this study by the National Taxpayers Union Foundation. To the contrary, based on their campaign platforms, NTUF found that every one of the contenders for the Democratic nomination would increase spending even more than it has grown under President Bush. The thriftiest Democrat, Senator Lieberman, calls for only $170 billion in new spending. By comparison, Governor Dean calls for $223 billion in new spending and Senator Kerry wants to spend an additional $265 billion. The loftiest would-be spender is Reverand Sharpton, whose campaign wish list is over $1 trillion, so be thankful he hasn't a prayer in the primaries. To put these numbers in perspective, NTUF notes the projected federal revenue reduction from the 2003 tax cuts some Democratic candidates want to repeal is only $135 billion. Alas, were there only more politicians who could keep their hands out of our wallets.

UPDATE: See here.


A little bit of embarrassment seems to be in order: An article in Sunday's L.A. Times Calendar section (seems to be unavailable unless you're a subscriber) reports on a new documentary about Julius and Ethel Rosenberg ("an exceptional documentary, short-listed for this year's Academy Award, a compelling emotional narrative laced with explosive political material"), who were convicted in the 1950s of spying for the Soviets, and executed for it. The documentary was directed by their granddaughter, Ivy Meeropol. The article is not by any means entirely pro-Rosenberg, but I was still struck by the second paragraph below:
But what also drove [Ivy] was the fact that "I was tired of the simplistic version of this story, what history remembers, the way everyone thinks they stole the secret of the atomic bomb. I knew this wasn't true, I knew they were more than that, and I wanted to bring their story to people who don't know it or have closed their minds to it. And I needed to know what was worth standing up for, what they were willing to die for."

What this involved was re-creating the world of left-wing activists from which the Rosenbergs emerged, entering it through interviews with friends like Osheroff who are still alive and remember a time of hunger and privation, when, as one says, "you had to be dead from the neck up not to feel radical change was necessary." People, Ivy says, who were "idealists with good intentions who sincerely believed the Soviet Union was a better way. It's painful that people continue to dismiss that, and I wanted to reclaim it for them."
     Now I'm sure that some, perhaps many, American Communists, including those who continued supporting the Soviet Union into the 1950s -- past the Ukrainian famine, past the purges, past the Ribbentrop-Molotov pact, past the enslavement of Eastern Europe -- were misguided "idealists with good intentions." True, to remain "misguided i ealists," they had to have willfully blinded themselves to the reality of what the Soviets were doing. But human beings have a remarkable capacity to do that sort of thing.

     Still, the fact remains that either these "left-wing activists" were evil (i.e., not really misguided idealists, but people who fully supported slaughter and tyranny in the name of Communism) or fools: People who failed to realize that Communism would create more hunger and privation, as well as suppressing freedom and killing people. And at the same time, history shows that many of those who didn't "feel radical change was necessary" (a category that of course includes many New Dealers, conservatives, moderates, and many others) -- who were supposedly "dead from the neck up" -- were smarter, wiser, and more humane.

     I don't think I'm asking for much here -- just a bit of embarrassment. "Our friends were dupes of the Soviets, and it turns out many of their opponents were actually smarter and more morally well-grounded than they were, but we should remember that they were just misguided idealists with good intentions" might work. I'm not sure whether it will work for everyone, but it's at least plausible. "You had to be dead from the neck up not to feel radical change was necessary," said when many of the "dead from the neck up" have now been obviously vindicated by history and those who supported pro-Soviet "radical change" have been proven to be fools or worse, is not a strong argument.

     Unless, of course, after all that has been discovered about the awful history of the 20th century, you still think that your pro-Soviet buddies were actually right. In which case, I wish you had spent 1937 in the "better way" of the Soviet Union, rather than in the "hunger and privation" of the United States. Or that part of 1937 before you really did become "dead from the neck up."

Tuesday, January 20, 2004


Anti-Semitism and the Religious Right: An interesting email from a reader:
Concerning your post 'Interesting findings from the American Jewish Committee survey...', specifically the question which asks about anti-semitism in the religious right: I was raised in a fundamentalist Christian home. My father and grandfather were Southern Baptists ministers, my uncle an Assembly of God minister. I was a fervent believer immersed in that world until the age of about 20, and though at 50 I've drifted far from fundamentalist dogma, I'm still in contact with friends and family who remain firmly entrenched.
Those are my credentials for stating the following; THE RELIGIOUS RIGHT IS STAUNCHLY PRO-JEWISH AND PRO-ISRAEL.
American Bible-belt Christianity, like most religion, is exclusionary of disbelief and teaches that Judaism is an incomplete truth due to it's rejection of Jesus as the Messiah. Jews, however, are recognized by them as the original chosen people of God and contemporary Israel is seen as the fulfillment of Biblical prophecy. As such, fundamentalists feel it is America's obligation to give Israel all necessary aid and support. If fundies are hostile to Jews, how to explain the widespread support given Israel throughout the Bible-belt states? Those good old boys cheering Israel on at every turn spent their formative years in Sunday School.
The first time I encountered the accusatory "The Jews killed Jesus" was in the media, possibly a movie. Though I don't doubt it has been used to justify horrible actions against Jews, it wasn't, and isn't, a fundamentalist accusation. Of course we knew that Jews called for Jesus' death, but Jesus, his disciples, Paul, etc. were Jews. These were the Biblical heroes (with Jesus beyond hero status). It was the chief priests, pharisaic types, that were singled out as the particular culprits, and though they were Jews, the chief priests modern counterparts were, in our minds Catholics or perhaps Episcopalians. The fellows who worshiped outward form rather than the indwelling God. Ritual rather than commitment. As misguided as this might have been, it's a far cry from the common misperception that Christians blame (and therefore hate) the Jews for the death of Jesus.
In your comments you state that surveys indicate that the religious right is no more anti-semitic than America in general, and though all my evidence is personal and anecdotal, I am sure that they are much less so. When my grandmother was 92 or so, one of her few remaining desires was to visit 'The Holy Land'. My mother booked the two of them on a church sponsored tour. On returning, the focus of their enthusiasm wasn't having walked where Jesus walked, or some mystical/religious connection of place. It was what the Jews had accomplished there. Their attitude was that only the chosen could make the desert bloom on such a scale. Who else could put together a nation like that in 50 years! They were buzzing with admiration. Other of my fundamentalist friends have returned feeling the same.
The Israelis have no better friends than these Christians. Nor the Jews in general.
I can't vouch for the accuracy of this perspective, but I haven't seen much in the way of contradictory evidence. It's true that anti-Semitism has traditionally had a decent foothold in the rural South (think Theodore Bilbo), but surveys show that anti-Semitism is highly correlated with low education, and until rather recently South was way behind the rest of the U.S. economically and educationally. If so, it would make sense that as the South has caught up with the rest of the country, anti-Semitism based on ignorance would decline, and the philo-Semitism of much evangelical teaching would start to have a more pronounced effect.
UPDATE: Several readers who grew up in the South, both Jews and Gentiles, have written to agree with both my correspondent and myself, with various minor caveats.


The Unconstitutional State of the Union Address: An interesting post from my friend, Capital University law professor David Mayer, who has just started a new blog.


Happy blogday... to Is that Legal? the blog from our sometime guest-blogger (and my fellow Brown alum) Eric Muller.


An on-line economics text: Blogger Arnold Kling offers a short monograph in on-line form, replete with links. I love the title: "The Best of Economics." I have only browsed through the contents, but I was very favorably inclined and I can recommend Kling more generally. Unlike many economists, Kling also has met success in the world of business, see his home page, which also refers you to his blogs. Newmark's Door refers to the material as a "high school text," but most professional economists could learn something from reading it. That being said, the presentation is clear and engaging, you could easily give it to a smart high school student.


Question about antidiscrimination law: A reader writes:
Say an employer/business owner -- who happens to be an Orthodox Christian -- interviews a prospective female employee for a job opening. During the interview she let's it be known that she is a married mother with young children and is planning on putting them into day care if she gets the job. The employer does not give her the job because, according to his religious convictions, he thinks that such a mother should be at home raising her children.

Would this violate Title VII's prohibition on gender discrimination (under the disparate treatment theory)? At first, it seems like an easy answer -- an easy yes. But I think it all depends on how narrowly the statute is interpreted. He could argue he wasn't discriminating against her on the basis of gender per se -- perhaps he ended up hiring a woman who wasn't in such a position -- perhaps one whose children were grown up. . . .
     Under Title VII, the easy answer is in fact the correct one: This is sex discrimination, because the employer is treating a woman with children differently than how he would treat a man with children (I assume that this is what he's doing, given the fact pattern). Courts have considered this general issue, under the rubric of "sex-plus" discrimination -- i.e., the discrimination is based on sex plus some other factor -- in contexts very similar to those that the reader asks about (I think they generally involved discrimination against married women, so the "plus" was marital status, but some might have in fact involved discrimination against women with children), and found that such practices were discriminatory.

     And this, I think, is the only sensible interpretation of the statute. True, the employer isn't refusing to hire all women; but much discrimination is discrimination based on a prohibited factor plus something else An employer who says "I'll hire any white/male/non-Jewish candidate who passes my minimum criteria, but I'll only hire a black/female/Jewish candidate only if the candidate's credentials are stellar" is discriminating based on race/sex/religion (or national origin) plus something else; yet that's quintessential employment discrimination, and the very sort of thing that the text of Title VII prohibits, and that Title VII was meant to prohibit.

     If the employer actually believes that his religion prohibits him from hiring married women who would then put their children in child care (e.g., because he thinks that he would then be complicit with behavior that he think God frowns on), then he would be able to raise a Religious Freedom Restoration Act defense, since Title VII is a federal statute and RFRA still applies to federal statutes. But courts would, I think, reject the defense, because they would conclude that there is a compelling government interest in preventing job discrimination based on sex; that's what the precedents strongly suggest (see, e.g., Roberts v. U.S. Jaycees).

     (Note that this is a discussion of Title VII law as it is, and of how Title VII should be interpreted. There are lots of fascinating philosophical questions about whether we should have Title VII at all, what exceptions there should be to it if we do have it, whether preferences for women or nonwhites should be allowed, and so on; I'm too swamped to get into that now. This is a post about current law.)

Monday, January 19, 2004


the commitment to democracy, of anyone who takes the government side against Katharine Gun. Saddam’s gone and nothing can bring him back. Whatever happens in Iraq, happens. The war was fought and cannot be unfought. All that turns on this case, is whether someone who is aware that the government is trying to do something in private which they would not dare to do in public, has the right to blow the whistle. If you think that Ms Gun deserves to go to jail, then all I can say, mes amis is examine your conscience.
(The link is to Bob Herbert's column this morning.) The Crooked Timber commentators generally seem to find this an odd thing to think.

Add me to the slightly baffled chorus here. (I had the same baffled reaction when reading the NYT column this morning.) I've heard of lots of cases of Official Secrecy Act-abuse, lots of instances of people being prosecuted under OSA who I think shouldn't be under a defensible free speech/ free press theory. As I understand it OSA would also have allowed prior restraint against the newspapers that published the memo Gun leaked, and I think that's wrong. But to punish the security-cleared government employee who revealed information that she had access to-- well, if that's a violation of freedom of speech, then there's no legitimate way to have security services at all. I confess that I used to think that there couldn't be a legitimate security/ intelligence service, in my harder-core libertarian days. I can still understand the argument to that effect, even though I no longer agree with it. (And even then, I wouldn't have identified the free-speech rights of employees as the central moral problem with such agencies-- the employees have contracted away their right to speak about what they learn on the job as a condition of employment.) But is endorsing the conclusion that liberal democracies cannot have intelligence/ security agencies really a prerequisite for a commitment to democracy? That's a pretty radical position for a minimum entry requirement.

The comparison to Daniel Ellsberg is interesting but more complicated than Herbert lets on. Ellsberg was never found to have a First Amendment right ot have leaked the Pentagon Papers, though the NYT was found to have a First Amendment right to publish them. Ellsberg was subjected to all sorts of Nixonian illegal and secret harassment. Gun is being prosecuted, above-board and according to law. The criminal case against Ellsberg was thrown out due to government misconduct; Herbert and D-Squared seem to be claiming that the act of prosecuting Gun is itself misconduct.

Whistle-blower cases are complicated to get good general principles for. Whistle-blower cases that involve people with access to classified information are even more complicated, unless one wants to do away with the business o fhaving classified infromation altogether. And, yes, part of having a procedural rule like "People may not reveal classified information" is that people cease to be able to lawfully decide for themselves when the information really ought to be publicly known. (Here cf Raz on authority and law; for that matter, cf Hobbes.) It's true that the government could not have publicly avowed its intention to do what Gun exposed their intention to do. But neither could she have avowed an intention to reveal classified information when her conscience demanded it and still received her clearance.


Appearance at Berkeley: Tomorrow, Tuesday, the 20th, I will be speaking about You Can't Say That! at Boalt Hall Law School on the UC Berkeley campus at 12:45 p.m. Admission is free and open to the public, and VC readers are invited to come by and say hello (and get a free lunch!)


Correction: No time to go into detail, but getting a correction up has urgency: I appear to have misstated the procedures for selecting MP candidates in the UK, Australia, and Canada (single-member FPP parliamentary systems) a couple of days ago, by understating the importance of local party member selection and overstating the influence of the central party structure. Until I can get a proper detailed post and explanation up, please disregard the earlier account.


More on "Original Meaning" Originalism: A few days ago I posted on Originalism and Precedent--The Next Big Issue. In passing, and without elaboration or defense, I noted that, after years of being a nonoriginalist, I had

adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed.
[For a nice description of "originalism"--including the difference between "original intent" & "original meaning" originalism--see today's Legal Theory Lexicon on Larry Solum's Legal Theory Blog.] In response, I received the following thoughtful message from Caltech philosophy professor Dominic Murphy:

What I want to know is what you mean by "the public meaning of the text at the time of its adoption": because (1) if the public meaning of the text is only what the words REFERRED TO at the time, then when the constitution uses the term " the states", it is referring only to the original 13 states, and all states admitted to the union since then are presumably not bound by it. So you can't mean that.

So do you mean that (2) many terms in the constitution are defined functionally, as "whatever fulfills the criteria for being a thing of this kind" - in that case all the states come within the meaning of "states." But now look: in this second version, we admit that the class of entities a constitutional term refers to can expand over time, even if the term keeps its original meaning. In that case, why can't all t e terms work like that?

So that, for instance, when the constitution says "rights" it means "whatever fulfills the criteria for being a right". In that case, we can decide that something new (like privacy, or even universal health care) in fact meets the criteria for being a right, and expand the set of rights even while keeping the original meaning of the term (philosophers call this the difference between the sense and reference of a term).

If (2) is your theory of meaning, then originalism is compatible with "the living constitution" idea, since we can just say that the meaning of "rights" remains unchanged, we've just discovered more of them. You don't, of course, have to agree that the set of rights can expand like the set of states, but the disagreement is just a philosophical difference over rights, and there is no difference between originalism and the living
constitution view.

Which I take it you don't welcome. So you could try for (3): some terms in the constitution are functionally defined in such a way as to permit more objects of that type to be added to the set of things that the terms refer to. But other terms aren't: they just refer to what they originally referred to. I don't know how you defend that without either (a) appealing to the intentions of the founders, as the men in control of the definitions, or (b) providing some hideously complicated semantic theory.
In this message, Professor Murphy (who graciously consented to my posting his remarks with attribution) raises some interesting and fundamental questions about original meaning that merit more careful consideration than can be given on a blog. But here are some thoughts.

First, Professor Murphy is raising what con law professors call the "level of generality" issue. Words can be used with varying degrees of specificity or abstractness and the interpretive issue is how specific or general are the words in the Constitution. Does "states" refer only to the then-existing 13 tates, to all states properly admitted into the union, or to whatever entity a judge thinks has become a "state" under the "best" interpretation of that word? Do "rights" refer to particular rights, a particular conception of rights, or to whatever conception of rights happens to be "best"?

Second, most originalists maintain that the level of generality is itself an historical question. While some originalists would limit the level of generality to the specific (though usually hypothetical) intentions of the framers, an original meaning approach of the sort I defend involves looking for how the general public would have understood the terms given the context in which they appear in the text.

So, for example, there is much in the document itself to suggest that the term "states" would have been understood to apply to any properly admitted state. For one thing, the Constitution explicitly includes a procedure for adding states, so it would be bizarre to think that references to states elsewhere in the text would refer only to the original 13. However, it is not up to courts to change the definition of "state" to keep up with the times, so they can decide that the District of Columbia should now be considered a state because its size and population exceeded what the founders contemplated. With this conclusion I imagine most nonoriginalists would agree, but the challenge to them would be to explain exactly why a court could not redefine the meaning of "state" if it can redefine other terms in the written Constitution to "grow" with changing times.

The term "rights" in the Ninth Amendment does not appear in a vacuum. It appears along with the words "retained by the people." The evidence I present in Restoring the Lost Constitution clearly shows that this phrase was a reference to natural rights, by which was meant "liberty rights" as opposed to other sorts of "positive rights" found elsewhere in the ext--or the sorts of "welfare rights" favored by some today. On the other hand, the term liberty "rights" was then and still is abstract enough to include any rightful exercise of liberty, not merely those exercises of liberty of which the founders were aware. In Restoring the Lost Constitution I substantiate this claim too with considerable historical evidence.

In contrast, the "due process of law" is even more abstract. There is no reason to think that this phrase was understood to be limited to a specific set of procedures in existence at the time (though these procedures could exemplify the concept). Same with "cruel and unusual punishment." The founders did not provide a list of prohibited punishments and there is no reason to think the concept would have been thought limited to specific punishments then thought to be cruel and unusual. One reason the Constitution has lasted this long is that it was written sufficiently abstractly in crucial places to allow its principles to apply to new facts and circumstances.

Which brings me to the issue of the so-called "living Constitution." Everything depends on how this pretty vague metaphor is taken. If it taken to imply that the meaning of the words in the Constitution change with usage, or that Congress and the courts can take it upon themselves to change these meanings, then it is to be rejected. A "dead constitution" performs the vital function of imposing law on the law makers, enforcers, and interpreters, thereby protecting the rights retained by the people from infringement by their "agents" in government. To perform this function, the meaning of a written constitution must remain the same until properly changed. And those agents whom it binds cannot change this meaning on their own. As Isaac Penington, Jr. wrote in 1651: "They who are to govern by Laws should have little or no hand in making the Laws they are to govern by."

On the other hand, if the metaphor of "living onstitution" is meant to imply that the abstract, and even the more specific, provisions of the Constitution require "construction" when applied to particular cases and controversies, and that these constructions can evolve over time as facts and circumstances change, then in this sense the Constitution certainly "lives." It would be more accurate, however, to say that, while the meaning of the Constitution remains the same, constitutional law does inevitably evolve. I devote a whole chapter of Restoring the Lost Constitution to the limits of originalists interpretation and the need for constitutional construction to provide rules of law and applications to changing facts. Construction is perfectly necessary and proper, provided that any construction not violate the original meaning of the text, as many modern constructions have--most notably, the "presumption of constitutionality" that gives the benefit of the doubt to the government's exercise of power as opposed to the citizen's exercise of liberty.

There is, of course, much more to say about all this and I deliberately avoided getting into the nuances of originalism in my original post as I could anticipate that it would be hard to say it all in a blog. But a blog is a good place to start and those who find this topic interesting--whether or not they are sympathetic to originalism--can read what I have written about it elsewhere. Or you can come ask me about it in person (see the next post below).

UPDATE: Larry Solum adds his 2 cents here.


Washington DC Book Tour: You can come and question me in person about originalism as my book tour for Restoring the Lost Constitution: The Presumption of Liberty kicks off this week with four appearances in Washington DC. The public is invited to all events and posters at the schools should indicate the locations of the talks. If you do come, identify yourself as a reader of the Volokh Conspiracy.

Tuesday, January 20th

George Mason School of Law, Arlington (Noon)
George Washington School of Law (5:00PM)

Wednesday, January 21st

Catholic University of America School of Law, Room 205 (Noon)
Georgetown Law Center, Room 344 (4:00PM)

NEXT WEEK: THE VIRGINIA TOUR (University of Virginia, Washington & Lee, Sweet Briar, & William and Mary)

Sunday, January 18, 2004


What are the political duties of museums? Most blog readers don't click on the links, I have found. But if you don't click on this link, don't bother reading any further. The bottom line: a Swedish museum is displaying an artwork that would appear to glorify Palestinian suicide bombings. (In fairness I should note the artist, an expat Israeli, disavows this interpretation, see today's NYT article "Israel Diplomat Defends Attack," the link is temporarily down, the artist speaks of showing the incomprehensibility of such suicide bombings.) The initial link, of course, shows the image of the artwork, here is a summary from the article:

"Called Snow White And The Madness Of Truth, the installation features a photo of Hanadi Jaradat, a 29-year-old trainee lawyer who blew up herself and 19 Israelis in a Haifa restaurant in October.

The work is accompanied by a piece of Bach music entitled My Heart Is Swimming In Blood."

The photo itself appears to be swimming in a pool of blood.

The Israeli ambassador called the work "a call to genocide" and in fact threw a spotlight at it, which led to his restraint and a diplomatic incident between Israel and Sweden.

Related controversies have arisen in Germany. Museums wonder to what extent they should display works from the Nazi era. But of course there is a central difference: no one in the German museums (one hopes) feels they are endorsing the Nazi cause if they show some Nazi-era art. At least the art does not appear in a possibly supportive context for Nazi atrocities. In contrast I suspect many of the viewers in the Swedish museum, and perhaps some of the curators, sympathize with the Palestinian suicide bombers and regard the artwork as a kind of homage or memorial.

Mel Gibson's forthcoming movie, about the life of Jesus, is considered by many to be anti-Semitic (it is available f r limited viewing, the Pope likes it, I have not yet seen it). I have heard equally compelling reports that it is a wonderful work of art. What if both claims turn out to be true?

If I were a museum curator, I would not have displayed the work in question. This is in part because I do not sympathize with the Palestinian bombers, and in part because I see "political inflammation" as outside of the museum's proper mission. You might have noticed that the work is being shown in an "antiquities" museum. At the same time, I will fork over my $8 to see the Mel Gibson movie and I don't have a kneejerk objection to a museum exhibit of Soviet army recruiting posters. I'll think more about this, and if I can come up with some consistent principles, I'll pass them along in future posts.


An astute reader, Johan Richter, offers a (rough) translation of the accompanying text to the piece:

Once upon a time at midwinter
For her brothers and cousins death the 12 of june
and three drops of blood fell
She was a woman too
white as snow, red as blood, and her hair was black as ebony
appearantly innocent, without suspicious intent, and universal non-violent character
and the red was beautiful against the white
The murderer shall pay for this and we shall( or will) not be the only ones to cry
like a weed in her heart until she did not have any peace, neither day nor night
Hanadi Jaradat was a 29-year old lawyer
I shall run far away into the wild forest and never come home again
Before the engagement( to be married) took place he was killed in an engagement with Israeli security forces. ( This is not a pun. The two engagements are completly different words in Swedish but I couldn't come up with any good synonyms.)
and she ran over sharp rocks and briar-bushes
She said: Your blood shall not have been let in vain
and almost pierced Snowwhite's innocent heart
She was hospitilized, broken y sorrow, after witnessing the shooting
the wild animals will soon have devoured you
After his death she became the breadwinner and she concentrated completly on the task
"Yes", said Snowwhite, "with all my heart"
bitterly crying, she added: "If our people can not fulfill its dreams and goals, then let the entire world be erased (or wiped out)"
so run then, poor child, run
She secretly entered Israel, ran into an restaurant in Haifa, shot down a security guard, blew herself up and murdered 19 civilians
white as snow, red as blood, and her hair was black as ebony
And certainly a lot of people are crying now: Zer Avivs family, Almogs family and all the relatives and friends of the dead and wounded
and the red was beautiful against the white

Here is the text in Swedish, Richter also notes that the piece is part of a more general display on genocide throughout the ages.


Nominate Professor Bainbridge: Steve Bainbridge likes my earlier suggestion in NRO about using the threat of recess appointments to break the downward spiral over judicial nominees--and wants to be nominated himself. I think he would make an excellent choice. In fact, threatening to nominate him might end the downward spiral all by itself! You can read his assessment here.


Conspiracy in the court: Reader Bob Ambrogi points out that a blog posting of mine has made it into a published opinion of the Massachusetts federal district court in the case of Suboh v. Borgioli. Alas, it was not some brilliant piece of legal reasoning, shot through with insight and perceptive legal analysis; instead, it was a reference to the lyrics of the parody song "Appointed Forever," a poke at the penchant of federal judges to see themselves as divinely ordained, written by the Bar and Grill Singers. Nice to know nonetheless that we're being read (and that some federal judges -- Judge C.J. Young, in this case -- have a sense of humor).

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