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Saturday, February 28, 2004


Geek heresy: May I confess something slightly embarrassing?

I'm not, deep in my heart, convinced that Return of the King and Peter Jackson deserve to win tonight.

Oh, I want them to win, mind you. It would be a gross injustice and blot on the Oscars' (anyways-spotty) record if the Lord of the Rings trilogy failed to bring home a Best Picture and Best Director award. I want to see the acceptance speechess. I want all the glory and vindication that's due for the trilogy.

But it should have already happened.

Two years ago, Fellowship of the Ring-- the finest overall movie of the three, and a beautiful, magnificent piece of work-- lost to the actively awful Beautiful Mind, a movie with very close to no redeeming value.

Last year, Two Towers-- a somewhat lesser movie, though an even greater directorial accomplishment-- lost to the fine-and-fun-but-nothing-really-special Chicago. Considering how terrific the stage musical is when it's done well (I got to see it on Broadway with Marilu Henner and Bebe Neuwirth-- and Neuwirth was electrifying, amazing, orders of magnitude better than the fine-and-fun-but-nothing-really-special Catherine Zeta-Jones performance), the really noteworthy thing about the movie Chicago is how uninpired it was. It wasn't execrable like Mind, but it seems to me that it didn't even come close to measuring up to Two Towers.

Now it's the year for Return of the King-- a slightly lesser movie still, and noticeably fallen off from the standard set by Fellowship. And it's up against Mystic River and Lost in Translation. And I'm just not convinced that, taken on its own rather than as the representative for the whole trilogy, RotK is a better overall movie than, or Jackson's directing of it a more impressive accomplishment than Sofia Coppola's or Clint Eastwood's accomplishments in irecting, River or Translation.

There's something really special about a movie that's pitch-perfect, one that sets an ambitious goal for itself and accomplishes it with no false notes, no real mistakes, one that somehow adds up to more than the sum of its parts. I thought Fellowship was such a movie. And I think River and Translation both are. RotK? Not so much.

What would probably make me happiest tonight is if the past two years' Picture and Director awards got revoked and given to Rings/ Jackson, and then River and Translation split the two 2004 awards. Sadly, that ain't how it's going to happen...


of the Jewish faith. He based this information on material posted on the website of the Saudi tourism board. Rep. Weiner's office was informed by Embassy officials that this does not reflect the visa policies of Saudi Arabia and the visa requirements are available through the Saudi consulates and are posted on the Embassy website. Further, the Supreme Commission for Tourism was informed that the information on the website was not correct and as a consequence the erroneous material was removed from the website.

According to Ambassador Prince Bandar bin Sultan: "I am surprised that Rep. Weiner would issue a statement after his office was advised by officials of the Embassy that the concerns he raised were not the kingdom's policy. At this time, we should be working toward greater understanding and better relations between the United States and the Middle East. Rep. Weiner and his actions only serve to spread doubt and mistrust."
Foolish Rep. Weiner -- to trust tourism board officials over diplomats, who of course always give you nothing but the straight dope.

     Just one tiny follow-up question: What exactly was the nature of the error in the material? A typo? A mistranslation?

     Opin onJournal has more; thanks to Charles Chapman for the pointers.


Night of the Living Constitution: Kieran Healy at Crooked Timber has the plot outline. Dawn of the Dead meets Griswold v. Connecticut.


Foolishness of the Israeli Left: This piece in Ha'aretz by Yoel Marcus shows why the Israeli left has been discredited among the Jewish voting public in Israel. Two things stand out. First, Marcus's callousness toward the victims of Palestinian terror, dressed up as paternalistic concern that their suffering is being "exploited" for political reasons. Second, the following nonsensical line: "There is no power in the world that can stop a suicide bomber from entering Israel." Really? Then why has there been exactly one suicide bomb from all of Gaza (and that from British nationals)--safely cut off from Israel by fences, walls, and entry barriers--during the entire Second Intifada, compared to the dozens from the West Bank? Why has the number of suicide bombs decreased dramatically since Israel reclaimed security control of the West Bank? And why has the number of suicide bombs decreased even more dramatically near the areas of the West Bank where the security fence is complete? Surely, a military solution to the conflict between Israel and the Palestinians is an imperfect one. But the view that force can play no productive role in quelling a terrorist campaign is just incredibly stupid, not least because it is contrary to observed experience. Out of such delusions the Israeli left's continued electoral debacle is made.


Lawsuit over anti-Catholic sculpture: In January, I blogged this:
Washburn University, a public university in Kansas, is displaying an anti-Catholic sculpture. The sculpture apparently "depicts a Catholic bishop with a grotesque facial expression wearing a phallus on his head that is shaped like a bishop's miter" (a photo is visible in this news story, and apparently it's not clear whether any phallic connection was intentional), and the caption says "The artist says, 'I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of the screen was the persona you see before you.'" The sculpture was apparently selected by "artists and art teachers representing Washburn's Campus Beautification Committee" for display -- this isn't some open forum where anyone can put up a sculpture -- and, as best I can tell, it isn't an obvious part of any broader display (as a painting might be in a museum).

     The Thomas More Law Center is suing Washburn on the grounds that the display by a government-run university of an anti-Catholic sculpture constitutes disapproval of religion. Endorsement of religion (religion generally or a specific religion in particular), the Supreme Court has held, violates the Establishment Clause; but whenever the Court has said this, it has usually also said that disapproval of religion would be equally unconstitutional. (See here for citations.) Sounds like a p etty strong argument to me.

     If Washburn were allowing the sculpture as part of an open forum (anyone can put up a sculpture for a week), then people who were familiar with the open forum would realize that Washburn isn't endorsing the sculpture. If the sculpture were a work by a famous artist, or presented as part of an exhibition of art of a certain era, then again people would probably perceive that Washburn is just displaying the work for its historical or artistic importance (just as a museum exhibition of 16th-century Italian art wouldn't be seen as endorsing Christianity just because many of the great paintings of the time were on Christian themes). But as it stands, an observer seeing the sculpture, and knowing that it was specially selected for display by the University, would perceive it as the University's approval of an anti-religious message.

     I'm not sure that such lawsuits should succeed: It's not clear to me that courts should decide what works even a public university may display, and deciding what constitutes endorsement or disapproval is often very hard, especially when it comes to art (though in this case the message of disapproval seems pretty clear). But once the Court has started doing this as to art that endorses religion, there's a pretty strong case that courts should do the same as to art that disapproves of religion. It will be interesting to see how all this comes out.

     If anyone knows more of the story behind the sculpture, the artist, and the decision to put it up, I'd love to hear it.

UPDATE: Miter? Phallus? Both? Readers are split -- you be the judge; see here for a picture. In any case, even without the phallic link, the sculpture coupled with the title and the caption seems pretty anti-Catholic to me.
A federal trial court has just rejected the plaintiff's claim, reasoning that
[A]n objective observer would recognize that Washburn University displayed several pieces of artwork on campus each year as a part of its outdoor sculpture exhibition. In an environment of higher learning on a college campus, the court cannot conclude that a reasonable observer would perceive the university?s display of "Holier Than Thou" as an attack on Catholics. The fact that "Holier Than Thou" is a work of art, subject to myriad interpretations, further dilutes any religious meaning the sculpture may convey. The court holds that based upon the totality of the circumstances surrounding "Holier Than Thou"'s placement on Washburn's campus, a reasonable observer would not conclude that the university's display has the primary effect of conveying a message of disapproval towards the Catholic religion.
It seems to me the court is mistaken: This is a sculpture called "Holier Than Thou" -- a pejorative phrase -- and, coupled with the inscription, it seems pretty clearly anti-Catholic. (I'm setting aside the phallus question here, since the shape of the miter is indeed much more open to interpretation.) I assume the plaintiffs will appeal; it will be interesting to see what the court of appeals says. Thanks to TJ Lynn for the pointer.


Law and neuroeconomics: My colleagues Vernon Smith, Kevin McCabe, and Terence Chorvat have written a paper with the following abstract:
"As legal scholarship has come to rely more on economic analysis, the foundational questions of economics have become important questions for legal analysis as well. One of the key foundational elements of modern economics is the assumption of the rational utility maximizing individual. While this assumption has often been questioned, until recently, it was not possible to actually examine the brain mechanisms that individuals use to process the economic problems they face. As a result of the increasing abilities to explore the brain as individuals engage in economic activity, this article calls for a new approach to the study of law which incorporates the findings from the emerging area of neuroeconomics. We call this approach law and neuroeconomics. We argue that this research can help us understand what is occurring in the brains of the individuals and knowledge gained thereby can greatly aid both in understanding the process of creation and development of law as well as its effects on human behavior. The article discusses this research and begins the analysis of applying these findings the study of law."

Kevin McCabe hooks his experimental subjects up to MRI machines, to see which parts of their brains are processing decisions. Here is Kevin's nascent neuroeconomics blog.


The only time you're likely to see "Mel Gibson" and "JS Bach" used in the same sentence: Edward Rothstein, in today's New York Times, has what is for my money the most intelligent and well-reasoned discussion of the whole Passion brouhaha -- a comparison between Gibson's oddly medieval conception of the death of Christ and Bach's setting of the same story in the St. Matthew and St. John Passions. Worth reading.

Friday, February 27, 2004


Obsession songs: When the blogging world was discussing the theme of songs dealing with romantic obsession, I didn't think to mention one of my favorite songs of all-time, "Everywhere That I'm Not" by Translator, an obscure new wave band circa 1980, perhaps the first "alternative" band I listened to. Sample lyric (from memory):
I thought I saw you,
Out on the avenue,
But I guess,
It's just someone who
looked a lot like I remember you do

I thought I heard your voice
In a bar making a choice
But NO!
It's-just-someone-who-sounded-a-lot like I remember you do
Inexplicably, this song, which, unlike much of the new wave I listened to in my youth, still sounds absolutely great, never became a hit. Someone needs to cover it, now!


Software warfare: The Washington Post reports:
In January 1982, President Ronald Reagan approved a CIA plan to sabotage the economy of the Soviet Union through covert transfers of technology that contained hidden malfunctions, including software that later triggered a huge explosion in a Siberian natural gas pipeline, according to a new memoir by a Reagan White House official.

Thomas C. Reed, a former Air Force secretary who was serving in the National Security Council at the time, describes the episode in "At the Abyss: An Insider's History of the Cold War," to be published next month by Ballantine Books. Reed writes that the pipeline explosion was just one example of "cold-eyed economic warfare" against the Soviet Union that the CIA carried out under Director William J. Casey during the final years of the Cold War.

At the time, the United States was attempting to block Western Europe from importing Soviet natural gas. There were also signs that the Soviets were trying to steal a wide variety of Western technology. Then, a KGB insider revealed the specific shopping list and the CIA slipped the flawed software to the Soviets in a way they would not detect it.

"In order to disrupt the Soviet gas supply, its hard currency earnings from the West, and the internal Russian economy, the pipeline software that was to run the pumps, turbines, and valves was programmed to go haywire, after a decent interval, to reset pump speeds and valve settings to produce pressures far beyond those acceptable to pipeline joints and welds," Reed writes. . . .

"While there were no physical casualties from the pipeline explosion, there was significant damage to the Soviet economy," he writes. "Its ultimate bankruptcy, not a bloody battle or nuclear exchange, is what brought the Cold War to an end. In time the Soviets came to understand tha they had been stealing bogus technology, but now what were they to do? By implication, every cell of the Soviet leviathan might be infected. They had no way of knowing which equipment was sound, which was bogus. All was suspect, which was the intended endgame for the entire operation."

Reed said he obtained CIA approval to publish details about the operation. . . .
That should be a reminder, I think, that someone might well be doing something similar to us, though we buy software rather than copying it. It could be someone in the U.S. or outside it, someone employed by U.S. companies (here or abroad) or someone employed by foreign companies who are selling software to us. I don't know what the solution would be: intensive source code review within U.S. companies, a shift to open source (I'm skeptical of the ultimate economic viability of open source, but lower exposure to such hidden bombs is one of open source's likely pluses), refusal on the part of the U.S. govenrment and many U.S. businesses to buy software unless the source code is disclosed and thoroughly vetted (something that would be tremendously expensive), or something else. But this definitely does seem like a potentially serious security problem.

     Thanks to Mitch Sklar for the pointer.


No Jewish People need apply: Reader Allen Cogbill writes:
A [WorldNetDaily article] today notes that the Kingdom of Saudi Arabia is now, for the first time, issuing tourist visas -- but don't apply if your Jewish, or even if you have a passport with an Israeli arrival/departure stamp (which could exclude lots of Christians who travel to the 'Holy land'). Specifically denied visas are

1. An Israeli passport holder or a passport that has an Israeli arrival/departure stamp.

2. Those who don't abide by the Saudi traditions concerning appearance and behaviors. Those under the influence of alcohol will not be permitted into the Kingdom.

3. There are certain regulations for pilgrims and you should contact the consulate for more information.

4. Jewish People

The KSA original web page (cached by Google): [here].

The current KSA web page: [here]. . . .
Oh, and let's not forget the obvious stuff, also from the cached page:
Important Instructions:

If a woman is arriving in the Kingdom alone, the sponsor or her husband must receive her at the airport.
Every woman must have confirmed accommodation for the duration of her stay in the Kingdom.
A woman is not allowed to drive a car and can therefore only travel by car if she is accompanied by her husband, a male relative, or a driver. . . .


Kudos to Dell, Jeers to Sprint: I'm owed $100 rebates by both Dell and Sprint PCS. In both cases, I sent in my receipts, the form, etc., and heard nothing. In both cases, I followed up with emails, and heard nothing. I then called Dell, which offered to process the rebate for me while I waited on the phone, and gave me a reference number. I called Sprint. Then emailed. Then called again. Then sent in another rebate form. Still no rebate. The attitude of customer service at Sprint is that the rebate department handles rebates, they don't, quite a contrast from the quick help I received from Dell. Caveat emptor. My next cell phone isn't going to be from Sprint.


The Length of Life: In Howard Bashman's absence, I thought it worth noting the D.C. Circuit's decision today in Glascoe v. United States. Judge Randolph's opinion for the three-judge panel begins:
Precisely how long is an individualís life span minus, say, five years and 10 days? One cannot give a firm answer if the person is still alive. No matter, say the three petitioners here, each of whom seeks a deduction of good time credits from his maximum sentence of life imprisonment. If we agree with their position, counters the government, we will have converted indeterminate sentences into determinate sentences. The case turns on the meaning of two provisions of the District of Columbia Code.
As it happens, the D.C. Code is not hospitable to the petitioners, and they lose.

In other D.C. Circuit news, Scaife Foundation impresario Richard Larry lost his bid for attorneys' fees under the Independent Counsel Act. Some saw the Court's refusal to grant attorneys' fees to the Clintons and their compatriots as evidence of a right-ward tilt on the court. Today's action suggests that the special division that oversees such requests is indeed conservative -- that is conservative with taxpayer dollars.


To Wooster Voice, re Naive Youthful Idealism: Reader David Zasloff sent the following excellent letter to the Wooster Voice:
I have noted on The Volokh Conspiracy the flurry of incidents regarding Mr. Makhlouf's appearance at Wooster, and I find Mr. George's response to the criticisms of Mr. Makhlouf's presentation to be an odd combination of historical ignorance and adolescent wishful thinking. Rather sweet, in its way, but unfortunately far from useful.

Mr. George points out, no doubt correctly, that many who criticized Mr. Makhlouf's presentation were not there to hear it. I certainly was not. Indeed, I am grateful to Mr. George for his various quotations, which suggest that Mr. Makhlouf looks upon the Middle Eastern crisis not with the usual blood-soaked rage of official Arab pronouncements, but with the deep sadness I also feel. Assuming, however, that Mr. George's editorial is an accurate reflection of Mr. Makhlouf's attitude, I am completely at a loss to understand how either one of them expects to cure the wounds in Israel and the Palestinian territories while adhering to strongly to objectively antisemitic sources for their solutions.

Whether Mr. Makhlouf is a genuine antisemite I am in no position to determine. I am, however, profoundly suspicious of anyone who quotes "The Protocols of the Elders of Zion" as though it were a genuine historical report at this late date. That the "Protocols" are an infamous forgery, written in Russia at the time of the Czars, is not an opinion but a historical fact, and if Mr. Makhlouf finds it convenient to ignore that historical fact for the sake of casting aspersions on world or Israeli Jewry, he cannot be taken seriously.

By this time you have no doubt been told that the word "Israel" does not mean "family of God" in Hebrew. It means "wrestles with God," and refers both to t e patriarch Jacob's transformative experience in the Bible and to the Jews' history of relating to God as His partners in bringing spiritual awareness to Earth. For all I know, "Israel" does indeed mean "family of God" in Arabic, as Mr. Makhlouf claims, but I cannot imagine that even in Arabic the word is intended to refer to anyone but the Jewish people. The Arab peoples have never claimed the patriarch Jacob as their ancestor, and it was he who took the name Israel in the first place. Once again, it may be convenient for Mr. Makhlouf to assert that he, too, is part of Israel, but the claim is historically inaccurate and does nothing for Mr. Makhlouf's claims as a rational Palestinian spokesman. Indeed, it simply places him squarely within a disturbing recent development in Arab rhetoric that claims all of Jewish history - the existence of the Temple in Jerusalem, the constant Jewish presence in what is now Israel since Biblical times - as a fiction that can be disregarded in favor of Palestinian assertions.

These are only the most obvious examples of the dubious foundations in Mr. Makhlouf's speech. By relying on the Protocols, on photographs of unknown provenance, and on linguistic doublespeak, he is evidently trying to deligitimize Jewish claims in the Middle East solely on the basis of the claimants' status as Jews. If that is not antisemitic, I don't know what is, and if Mr. Makhlouf seeks peace with the legitimate and legal Jewish state, someone should inform him that antisemitism is not the way to get it.

In short, whatever his demeanor or motives, Mr. Makhlouf's speech was in fact antisemitic in nature, and the apologies from the Presbyterian Church and Wooster are both appropriate and welcome. I sympathize with Mr. George to a certain extent; his idealistic ignorance is familiar to me, because it is a characteristic I shared with reference to the Middle East when I was a college student. It took me a long time and a lot of pain to learn the truth that the Palestinian "lead rship" is not interested in peace. Fortunately, Mr. George is in school. He, too, will learn.

As for Mr. Makhlouf, I share his devastation at the damage the West Bank occupation has wrought. I, like all decent Zionists I know, weep at the deaths of Palestinians and of Jews, and while Mr. Makhlouf cries out at the Palestinian worship of human bombs, I cry out at the similar damage that the occupation has caused in the Jewish soul. Let us remember, however, why Israel is in the West Bank in the first place, and why it is now building that fence; it is because the Arab nations and the Palestinian "leadership" have refused to accept Israeli legitimacy, have made innocent civilians the target of choice for over 50 years, dance and sing when grandmothers get blown to bits, and have never renounced the goal of pushing Israel into the sea. Yes, the deaths of Palestinians and the destruction of their homes are devastating; if Mr. Makhlouf wants those things to stop, then instead of quoting vicious antisemitic lies, he should be telling his fellow Palestinians to call off the war. They are the ones who declared it, and they are the ones who can stop it.
UPDATE:A reader expressed concern that I am focusing too much attention on the foibles of one misguided college student. On the narrow issue, he is an adult, who wrote on a subject that had already garnered national attention, and thus should expect some scrutiny. From a broader perspective, the reaction to the current anti-Semitic undercurrent of anti-Israel rhetoric on college campuses is often "don't worry, college students are too sophisticated to not see through even the more subtle forms of anti-Semitism propunded by anti-Zionists." The Wooster story, however, provides an unusually graphic and explicit example of how easily a well-meaning, earnest young adult can be taken in by a skilfull, though not especially subtle (nothing subtle about the the Protocols of the Elders of Zion) anti-Semitic propagandist. And as Wooster goes one would think, so goes the nation.

Thursday, February 26, 2004


FMA DOA? Josh Chafetz is reporting that enough Senators have committed to opposing the FMA that it cannot pass (if they all stick to their positions).


Bisexuals: Just how many bisexuals are there out there? Some people I've talked to doubt that there are many, and suspect that there are many more homosexuals than bisexuals. Here's some data on this, though, from Laumann et al., The Social Organization of Sexuality 311 (1994). Of course, even though this was a big and seemingly well-conducted survey (3000+ respondents), it got only a small number of responses from homosexuals and bisexuals, so the numbers might not be that robust; and of course there's no guarantee that the respondents are reporting accurately. Still, it's the best that I've seen:
Sexual attractionAmong menAmong women
Only opposite gender93.8%95.6%
Mostly opposite gender2.6%2.7%
Both genders0.6%0.8%
Mostly same gender0.7%0.6%
Only same gender2.4%0.3%

If you look at the reported sexual practices (not just attraction) of people who have had some same-sex partners in particular time frames, here's what you see (numbers rounded off):
Time frame in which the person has had some same-sex partnersFraction of male respondents (the ones who had some same-sex partners) who had partners of both sexesFraction of female respondents (the ones who had some same-sex partners) who had partners of both sexes
In the last year25%25%
In the last 5 years50%60%
Since age 1880%90%
(As best I can tell, the time frame in the numerator is the same as in the denominator -- the 50% number, for instance, means that 50% of the men who have had a same-sex partner in the last 5 years have also had an opposite-sex partner in the last 5 years.)

      So there do seem to be quite a few bisexuals out there, though how many depends on how you define bisexuality. This suggests that the law (for instance, law limiting marriage only to male-female marriage) might indeed affect people's choice to enter heterosexual relationships as opposed to homosexual ones, whether by direct incentives (e.g., financial benefits) or by affecting social mores. If we thought everyone was either firmly heterosexual or homosexual, such effects would be extremely unlikely. But if quite a few people can go either way, then they might be swayed by legal or social pressures.

     Naturally, one might still think that the law shouldn't try to sway people in this respect, or that even if it's good to push some people into heterosexuality, the costs of any such push outweigh the benefits. One might also be generally skeptical that the law will have that much of an effect even on bisexuals. (As I've mentioned before, I tentatively support allowing same-sex marriage.) But the presence of bisexuals suggests that it's not crazy to think that the law might indeed have some effect on how many people end up in heterosexual relationships as opposed to homosexual ones.


Crime Severity and Constitutional Line-Drawing: I've just finished a very rough draft of this 15-page essay, and I'd love to get feedback from people who know a lot about criminal procedure -- a field that I discuss here, though I'm not as expert in it as I am in free speech law. The piece is a spin-off of my Crime-Facilitating Speech draft; I found that one of the sections there had enough broader applications that it might be worth publishing separately. Please e-mail me with any input you might have. In particular, I'd like to know what important cases or articles I might be missing. Thanks!


The new Florida same-sex marriage lawsuit seems to have some problems. "More than 170 gay men and women filed a lawsuit Wednesday challenging the Florida law prohibiting them from obtaining marriage licenses," the news reports say. But my friend Michael Froomkin, who I believe supports gay marriage, points out that apparently (1) some of the litigants may not have realized they were signed on to a lawsuit, (2) the lawyer is the one who had apparently in the past "tried (and failed) to sell a jury on the 'television intoxication defense,'" and "then years later tried the Internet intoxication defense" (at least give him points for creativity!) and (3) the lead litigants apparently "wore matching black T-shirts advertising their piano bar act" during their press conference. In Froomkin's words, "this isn't the sort of carefully crafted lawsuit with model plaintiffs that a smart lawyer would choose to mount what can only be an uphill attack."


More on the Federal Marriage Amendment: I've argued before that the FMA might end up being interpreted even to ban legislatively or popularly enacted state civil union statutes. (I also have some other objections, but the democratically created civil unions point is the one that seems to have interested the most people.) Someone asked what I would think of a modified version that would strike "state or federal law," and would thus read:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any State shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
     As I mentioned in a related post on Monday, such a change would largely take care of that particular objection. State legislatures and state voters would thus be allowed to enact a state civil unions statute, and state courts and executive officials would then be free to construe the law to require that certain benefits be conferred upon unmarried couples (which is what the law would by its terms command). That's good: State voters and legislators should be free to make their own decisions about civil unions, unconstrained by a federal constitutional mandate.

     Courts might still strike down any hypothetical future state constitutional amendments that explicitly call for civil unions (for the same reasons that I originally gave as to state statutes), and that's a legitimate theoretical objection even to the revised version. But since statutory ivil unions are politically much more likely, and would be allowed under the revised version, it's not that much of a practical objection.


Missouri Supreme Court upholds broad concealed-carry permit law: The opinion is here. The law's opinion argued that when the Missouri Constitution says
That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons
this means that the wearing of concealed weapons is forbidden. Not so, the Court said; the constitutional provision
means simply that the constitutional right does not extend to the carrying of concealed weapons, not that citizens are prohibited from doing so, or that the General Assembly is prohibited from enacting statutes allowing or disallowing the practice.

Parsing the clause proves the point. The subject is the word "this," which refers back to "the right of every citizen to keep and bear arms . . . ." The operative words are "shall not justify." "Shall not," which are words of prohibition, modifies "justify," which is:
1a: to prove or show to be just, desirable, warranted or useful: VINDICATE ... b: to prove or show to be valid, sound or conforming to fact or reason: furnish grounds or evidence for: CONFIRM, SUPPORT, VERIFY ... c (1) to show to have had sufficient legal reason ....
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 1228 (3d ed. 1993). Thus, the clause in its entirety must be read in this way: "but this [the right of every citizen to keep and bear arms . . .] shall not justify [shall not warrant, shall not furnish grounds or evidence for, shall not support, or shall not provide sufficient legal reasons for] the wearing of concealed weapons."

In short, the words used are plain and unambiguous. There is no constitutional prohibition against the wearing of concealed weapons; there is only a prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons. Consequently, the General Assembly, which has plenary power to enact legislation on any subject in the absence of a constitutional prohibition, has the final say in the use and regulation of concealed weapons. . . .
The Missouri Supreme Court is absolutely right about this; for my earlier arguments on the subject, see here and here.

UPDATE: As Clayton Cramer points out, "upholds" may be too strong a term; there are some funding issues that may keep the permit issuing requirement from being enforced in some counties until the Legislature cures the funding problem.


Law review article citing blog posts: This isn't an entirely new phenomenon, but it's relatively new, and still interesting:
19. As initial commentary indicated, the Eldred opinion itself offered surprisingly little discussion of how it fit into either the First Amendment or the Article I federalism case law. See Jack Balkin, Is the Digital Millennium Copyright Act Unconstitutional under Eldred v. Ashcroft? (January 18, 2003), at (discussing whether, with respect to the First Amendment, Eldred's deference toward traditional copyright protection would not extend to recent innovations in the Digital Millennium Copyright Act); Orin Kerr, Eldred And Limited Powers (Jan. 17, 2003), at (suggesting that although Eldred may seem inconsistent with the Court's recent Commerce Clause cases, Eldred did not involve the same conflict between state and federal powers); Eugene Kontorovich, Constitutional Law And Tradition (Jan. 18, 2003), at (suggesting that Eldred's First Amendment result represented a reliance on tradition, which could lead to similar reliance in other First Amendment areas). . . .

44. For an early commentator suggesting that Eldred be best explained as traditionalism, see Eugene Kontorovich, Constitutional Law and Tradition (Jan. 18, 2003), at ("Basically the Court's opinion says this is constitutional because no one, especially the Framers' generation, ever thought it was unconstitutional.") and Philippe de Croy, Constitutional Law and Tradition (Jan. 18, 2003), at (citing to Justice Scalia's classic statement of traditionalism in Rutan and expressing skepticism that Eldr have much effect on First Amendment law in other areas). . . .

99. Glenn Reynolds, Copyrights and Creativity (Jan. 16, 2003), at . . .
. I suspect that it will be especially common for articles about recent developments, where there isn't yet any "official" commentary in published law review articles (or even in law review articles that are in draft), but only the unofficial commentary in academic blogs.

UPDATE: As I mentioned, this wasn't the first example, nor the most prestigious one -- my colleague Stephen Bainbridge's blog made it into the Yale Law Journal. Cool.


Chutzpah at Wooster: Via Dhimmi Watch, I see that the Presbyterian Church has apologized for the anti-Semitic tirade delivered by an anti-Israel speaker, Samir Makhlouf, sponsored by the "Presbyterian Peacemakers" at Wooster and reported in this blog recently. The president of the college has also apologized.

Meanwhile, a student, Danny George, the "chief staff writer" of the school newspaper, the Wooster Voice, has written an editorial defending the tirade. Having "taken copious notes" during the presentation, he found it to be "without the slightest trace of bigotry or hate." Apparently, comparing Israelis to Nazis not only doesn't reek of anti-Semitism (why is it always Nazis?), it conveys no hate. I hate Nazis; most Americans hate Nazis; why compare Israelis to Nazis if you aren't trying to convey hate? Even more impressively, this young journalistic prodigy apparently could discern no "bigotry" in the speaker's invocation of the notorious Protocols of the Elders of Zion, perhaps the leading anti-Semitic work of all time.

Amusingly, Mr. George was particularly impressed with a riff of the speaker on the word "Israel" that started from the premise that "Israel" means "family of God" in Hebrew and Arabic. I don't know about Arabic, but in Hebrew "Israel" means "fought with God." Jacob was renamed Israel after his battle with an angel in Genesis.

You can let the Wooster Voice know what you think of its journalistic standards (politely, please), at


withdrawal of jurisdiction once, in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), which is confusing and hard to interpret.

And the Court had occasion to consider the scope of acceptable jurisdiction-stripping just 8 years ago, in Felker v. Turpin, 518 U.S. 651 (1996), a case about the Antiterrorism and Effective Death Penalty Act where Congress limited the Court's certiorari jurisdiction in certain habeas corpus cases. But, instead, they avoided the question by interpreting the statute as not really withdrawing jurisdiction.

So, the Constitution says Congress can make "exceptions" to the Supreme Court's jurisdiction, perhaps suggestion that any exceptions are O.K.? The Supreme Court's last word is either "anything goes" (1869) or "some jurisdiction stripping is unacceptable" (1871), and aside from that, all we're left with are some reasonable-sounding arguments from academics.


What is style in the blogosphere? John Holbo, guesting at, writes: "I donít think the blogosphere has thrown up nearly enough stylists of true distinction, incidentally. Do you?"

I concur with his basic point, though I have been wondering what it means to be a stylist of distinction in the blogosphere. Lileks is one example cited by Holbo and surely he writes very well. But I doubt if he is the core model for blogging prose.

There is no blogger we would compare with Keats or Montaigne for style. Perhaps style in the blogosphere is a bit like drama on TV. We perceive it only in cumulative fashion. (Few people "get" the very first episode of Seinfeld they see.) Over time we see how the mind of a single blogger evolves, how that mind deals with a variety of issues, and how that mind encounters the blogging of others. It is a kind of drama to see what a good blogger will come up with today. Recall that blogging is a new mixture of writing and editing. So the drama, and the accompanying stylistic interest, becomes most apparent over time. The "unit of style," so to speak, is larger than the single post. It involves personality, perspective, and intellectual drama as much as it puts forth pleasing combinations of words. And the style spans all the chosen links, not just the written comments of the author.

Blogging style also has a visual element, the layout of the blog changes what kinds of idea presentation will look good on the screen. I love Eugene's ongoing annotations of first amendment case law, and I suspect they are ideally suited to the long, "blocky" lines of the VC look. They would be less compelling in the tighter format of, just as Wonkette's short darts and quips would fare less well over here.

Holbo's post, while long, is interesting throughout, and watch for his praise of E gene. I also liked this line: "Blogging often has the courage to ignore the audience yet is seldom disrespectful to its audience, simply because its audience is highly idealized. It is the authorís own better nature."


Still a Free Speech Clause violation, even after Locke v. Davey: According to,
The Hispanic Club, the Chess Club and the Gay and Lesbian Alliance are just some of the clubs that have displays in the hallways of Portland schools.

But after the Bible Club at Marshall High School put a Bible and some other Christian books in a display case, some teachers complained to the principal. After a call to the district's lawyer, the display was taken down.

District officials said they felt the display gave the impression that the school was endorsing Christianity. . . .

Portland schools admit they treat religious and political student groups differently than they do sanctioned academic clubs, but point out that they do give religious groups places to exercise their free speech ó just not display cases.
The Bible Club is suing, and it's likely to win: The Supreme Court has repeatedly held that when a school opens up this sort of designated public forum for student speech, it can't exclude religious speech. Yesterday's Locke v. Davey decision, wrong as it is, did not undermine those cases.

     I wonder, by the way, what the school would have said if people had objected to the Gay and Lesbian Alliance having a display. I take it that the answer would be something like, "Oh, we're not endorsing homosexuality or lesbianism as being better than heterosexuality -- only letting students express their support of their own homosexuality, and related causes." Seems to me that's exactly how the Bible Club display would be described, no?

     Also, if you're worried about students -- high school students, who I take it can read, and can conceptually distinguish what students believe from what the administration believes -- will erroneously get the imp ession that the school is endorsing Christianity, why not put up a sign making clear that the displays are just put up by student groups, and aren't endorsed by the school? I doubt such a sign is necessary, since I doubt that students would get the wrong impression even without it -- but if some students do misunderstand the situation, putting up a sign would be the only constitutionally acceptable solution.


Daubert in the States: My latest academic paper, Daubert in the States, discussing the current standards for the admissibility of expert testimony in state courts, is available for downloading on SSRN.


Don't Believe the Hype: Iain Murray explodes the hype over the purportedly "classified" Pentagon report, featured in the British press and noted in the blogosphere, that allegedly concludes global warming is a greater threat than global terrorism. In reality, the report was prepared for the Pentagon by futurist consultants to examine the potential implications of an extreme and highly improbable climate scenario, and the comparison to terrorism was made by activist British scientists, not the report, let alone the Pentagon.

Wednesday, February 25, 2004


Magical Mystery Book Tour: The part of me that said, "Don't post this," was defeated by the part of me that cannot stop chuckling:

Thanks to Jerry McCusker at Machine in the Ghost for creating it and Instapundit for the post that inspired its creation. My only quibble is that my guitar was a cherry red Gibson ES335 with silver pickups, but how was he to know?

UPDATE: Searching for a picture of the Gibson to illustrate this post, I find that the asking price for a 1960 Gibson like mine is $13,500. I paid something like $285 for mine around 1968 and sold it a few years later for somewhere in the $300's to help pay for college. Oh well. I wonder how much my Buffet clarinet is worth? I still have that!

FURTHER UPDATE: The Slithery D asks if I am not really Richard Belzer's alter ego.


More bad writing: I was editing a draft of my own article, and I came across the phrase "Catching people who violate criminal bans on leaking tax information . . . ." Uh, that's the same as "Catching people who illegally leak tax information . . ."; and the latter version is shorter, simpler, and more active. Why did I write the long version in the first place? Why does clunkiness and complexity seem to come so naturally to us (and not just to us lawyers, I think)?


More on bad writing: Tim Sandefur cites the following footnote from a judicial opinion:
To the extent BAM has successfully persuaded me of the fundamental soundness of its position, that success should not be attributed, in any degree, to its counsel's unrestrained and unnecessary use of the bold, underline, and "all caps" functions of word processing or his repeated use of exclamation marks to emphasize points in his briefs. Nor are the briefs he filed in this case unique. Rather, BAM's counsel has regularly employed these devices in prior appeals to this court. While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief. It is counterproductive for counsel to litter his brief with burdensome material such as "WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!"
To my surprise, the phrase "wrong, wrong, wrong" (though without capital letters and the exclamation points) appears surprisingly often in judicial cases -- about a dozen times.


Sports Illustrated Swimsuit edition as "harassment"? According to a UPI story,
A sixth-grader in Belpre, W.Va., started a three-day suspension from school Tuesday for sharing Sports Illustrated's Swimsuit edition with his pals.

Justin Reyes, 12, brought a copy of the magazine to the Belpre Middle School last week, which education officials said was a violation of the school's non-verbal harassment policy and disrupted the learning process of other students, the Parkersburg News and Sentinel reported on its Web site Tuesday.

"It (the magazine) is without question, graphic, vulgar -- I think -- obscene to minors," Tim Swarr, superintendent of Belpre schools, told the newspaper. . . .
I'm not wild about swimsuit magazines, and I can surely see how they can be distracting to 12-year-olds. Still, a three-day suspension for that? And "harassment" and "obscen[ity as] to minors"?

UPDATE: Note that the three-day suspension was implemented as a second choice; the school originally ordered the boy to go for two days to an alternative school seemingly reserved for chronic troublemakers -- when the mother refused (as I certainly would have had I been the parent), the three-day suspension was imposed instead. Note also that Belpre is apparently not in West Virginia, but in Ohio right near the West Virginia border (thanks to reader Nels Nelson for the correction).

     Nelson also points out that other stories also say that the student was punished for "possession of lewd or suggestive material" (I'm quoting the AP account here) as well as "harassment." The suggestive material charge at least is plausible, and perhaps such rules should indeed be enforced as to 12-year-olds; as I mentioned, I can see how such materials can be quite distracting to classmates. But I still don't see how (unless there's more here than I've seen in the press accounts) such a violation should merit sending the kid even for two days to a school for troublemakers, or suspending him for three days.


lzell, to whom the case was assigned prior to its referral to the undersigned, noted that the court was "puzzled" by some of the Plaintiff's arguments in opposition to the motion to dismiss and found others "odd." Mr. Puricelli's lack of care caused the court, and I am sure, defense counsel, to expend an inordinate amount of time deciphering the arguments and responding, accordingly.

As previously mentioned, Mr. Puricelli's filings are replete with typographical errors and we would be remiss if we did not point out some of our favorites. Throughout the litigation, Mr. Puricelli identified the court as "THE UNITED STATES DISTRICT COURT FOR THE EASTER [sic] DISTRICT OF PENNSYLVANIA." Considering the religious persuasion of the presiding officer, the "Passover" District would have been more appropriate. However, we took no personal offense at the reference. In response to the attorneys' fees petition, the Defendants note that the typographical errors in Mr. Puricelli's written work are epidemic. In response to this attack, Mr. Puricelli writes the following:
As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for Mr. Devore. Further, had the Defendants not tired [sic] to paper Plaintiff's counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by the Defendants, thus they should not case [sic] stones.
If these mistakes were purposeful, they would be brilliant. However, based on the history of the case and Mr. Puricelli's filings, we know otherwise. Finally, in the most recent letter to the court, asking that we vacate the settlement agreement, Mr. Puricelli identifies the undersigned as "Honorable Jacon [sic] Hart." I appreciate the elevation to what sounds like a character in the Lord of the Rings, but alas, I am but a judge.

In his reply to the Defendants' response to the petition for attorneys' fees, Plaintiff's counsel argues that his typographical errors require no more than a $20 per hour reduction. We disagree. As we previously stated, Mr. Puricelli's complete lack of care in his written product shows disrespect for the court. His errors, not just typographical, caused the court a considerable amount of work. Hence, a substantial reduction is in order. We believe that $150 per hour is, in fact, generous.

As for the time Mr. Puricelli spent in court, considering the quality of his written work, the court was impressed with the transformation. Mr. Puricelli was well prepared, his witnesses were prepped, and his case proceeded quite artfully and smoothly. Although Mr. Puricelli fails to state what hourly rate he customarily charges, the statements that he provides in support of his fee do support such a rate. In our experience, $300 - $350 is on th high side of the customary rate, however considering the complexity of this case, we believe $300 is justified for the work that Mr. Puricelli did in court.
Thanks to reader Michael Cernovich for the pointer.


Abolition of gay marriage and the Contracts Clause: Massachusetts courts have said that Massachusetts must recognize gay marriages. Say this begins to happen; but Massachusetts voters amend the state constitution to essentially abolish the preexisting marriages. (This need not be the case -- they might just prohibit ones but retain the old ones, or change the existing ones into civil unions, but say that they abolish them outright.) Would this violate the Constitution's Contracts Clause, which prohibits impairing the obligation of contracts?

     I first blogged about this a couple of weeks back, and said that my tentative research has led me to the answer "no": Though marriages are in a sense contracts, courts have seen them as not being within the scope of the Contracts Clause -- the issue had arisen in the past when divorce law was liberalized, or when state legislatures issued legislative divorces. I can now confirm that; the 1888 Supreme Court case Maynard v. Hill specifically held that "marriage is not a contract within the meaning of the prohibition."


Jurisdiction-stripping: A reader mentioned to me that this issue has come up again -- some people are arguing that Congress should preserve certain statutes (this time, the Defense of Marriage Act, but in the past this has been suggested as to the Pledge, anti-abortion legislation, and so on) against Supreme Court invalidation by stripping the U.S. Supreme Court of jurisdiction to hear appeals in such cases. Is this constitutional, a reader asks?

     Congress probably does have the power to strip the Supreme Court of jurisdiction over Pledge cases, under art. III, sec. 2, cl. 2:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
I take it that Congress may also strip lower federal courts of jurisdiction because their jurisdiction (even their existence, see art. III, sec. 2, cl. 1, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish") are defined by Congress in most cases. There's some controversy about this, but my sense is that Congress may indeed act this way.

     But just how useful would that be? Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might n t take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

     What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution (such as the Goodridge gay marriage decision in the Massachusetts) will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)

     True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.


Ripples of Battle: I just finished Victor Davis Hanson's Ripples of Battle, which details three lesser-known battles: Okinawa (1945), Shiloh (1862), and Delium (424 B.C.) As usual, his description of the battles and surrounding events are fascinating. But the thesis is that these battles, though not as much discussed as others, have had ripples extending up to today. To take one example, he contends that the Japanese knew they could not hold Okinawa, but committed vast reserves to the battle, fought tenaciously, and adopted suicide tactics to deter the Americans from contemplating an invation of the mainland. But this only served to reinforce the decision to use the atom bomb to avoid the projected massive casualties that the battle of Okinawa taught Americans to expect on the mainland. He also uses the American experience with Japanese suicide fighters to suggest implication for the use of suicide bombers today.

I thought perhaps the final paragraph (with my insertions connecting it to the themes of the book), would entice readers to give it a try:

Millions of the anonymous have had their lives altered in ways we cannot grasp for centuries, as a single battle--with all its youth, confined space, and dreadful killing--insidiously warps the memory of friends and families of the fallen [such as Hanson's namesake uncle at Okinawa], twists the thoughts and aspirations of the veterans of the ordeal [such as Socrates at Delium], and abruptly ends the accomplishments of the dead [such as General Albert Sidney Johnson at Shiloh]. In that sense the ripples of battle are also immune from and care little for what people write and read, in or outside the dominant West. They simply wash up on us all as we speak and in ways that cannot fully be known until centuries after we are goneTyping this last sentence actually gave me chills.


Discrimination against religion: Just read the opinions in Locke v. Davey, which held that states may discriminate against religious programs in distributing generally available benefits, and I think Justice Scalia's dissent is far more persuasive than the Chief Justice's majority opinion. The one good thing I can say about the case is that the opinions are short enough that they'll be less trouble than usual to excerpt in my 2004 casebook supplement.

     I might have more about this case later (or I might not), but in the meantime one simple point: If the state of Washington decided to give special benefits for students of devotional theology (a $3000 scholarship only to people who are studying materials that are "devotional in nature or designed to induce religious faith"), that would be a sure violation of the Establishment Clause, because it would be discrimination in favor of religion. But when the state does the exact opposite, by specially excluding such students from a generally applicable program -- when it discriminates against religion -- that's now (after Locke v. Davey) completely constitutional, even though the Establishment Clause itself has long been described as barring disapproval as well as endorsement of religion, inhibition as well as promotion of religion, hostility towards as well as favoritism towards religion.

     The result, I think, genuinely is the discrimination against religion that people have complained about (sometimes wrongly, but here rightly) -- not just exclusion of either pro-religion or anti-religion messages from the government's own speech, but a regime where the government may discriminate against private religious institutions and programs, but may not discriminate in their favor. Now this is a wrong that is indeed worth amending the Constitution over.

     For more, see Part E of this article.

UPDATE: Stephen Bainbridge has more on this case.

FURTHER UPDATE: I conveniently forgot how wrong my prediction in this case was (though at least I labeled it "tentative").


Taking the Fifth: When people refuse to talk about something potentially incriminating -- even when it's in a social context, rather than in court or to the police -- they say the "take the Fifth." But why don't they take other Amendments instead, too?

     When you don't want to go to church with someone, you can take the First.

     If you don't want some potential houseguests, you can take the Third.

     If you're annoyed by people who're telling you not to drink, you can take the Twenty-First.

UPDATE: Eric Muller has a bit more.


A close call: VC readers will know I am skeptical of many government interventions. But I view asteroid protection as a genuine public good. Budget deficit or not, we are not spending enough money to address this problem.

Here is a story about a recent near miss. Here is a group calling for greater asteroid protection, with Dana Rohrbacher (R-California) on board. As of late, Richard Posner has taken a strong interest in this problem, he also thinks that greater protection is needed.

Dont' just look at standard cost-benefit analysis. Our preferences will adapt to not having the (relatively) small amount of money we should spend on greater protection. On the other side of the ledger, our civilization might never get over a major asteroid strike.

Tuesday, February 24, 2004


Neocons, Iraq, Iran, and Israel: Putting aside the anti-Semitic implications of the view that a small band of Jewish "neocon Likudniks" somehow managed to manipulate the clueless goyim in the Bush Administration to invade Iraq on behalf of Israel, two stark facts demonstrate the absurdity that any sort of Likudnik lobby is controlling U.S. foreign policy: (1) Yasser Arafat is still alive, well, and dictating a terror campaign from his headquarters in Ramallah. All it would take to get rid of him, a far bigger prize for Sharon than Saddam, would be a nod with no domestic political cost from Bush--no invasion, no American soldiers' lives lost, no billions of dollars--yet there he sits, safe as can be; and (2) Israel didn't want Saddam to be the primary target of the U.S. post-9/11 anti-terror campaign. Before the conflict in Iraq arose, Israel was desperately trying to get the Bush Administration to focus instead on what it considered the greater strategic/terrorist threat to itself and the West, the Hizbollah/Iran axis. But the Bush Administration's focus on Iraq was counter to Israel's assessment of where both its and Washington's most important interests lay. Those of you who read this blog regularly may have noticed that I haven't said much about Iraq. It's mostly because I was not and have not been convinced that the Israelis were wrong about Iran being a far, far more important and dangerous enemy than Iraq, but I have been willing to be convinced otherwise. I'm not yet at all convinced. Iraq is looking much like a paper tiger. Iran looks poised to have nuclear weapons, has strong ties to Hamas and Hizbollah, has the demonstrated ability to project terrorist force beyond its borders (e.g., the Argentina bombings in the early '90s), and has an underlying ideological hatred for the U.S. unmatched by Saddam's Ba'athists.


Second and Fourth Amendments, together: Here's an interesting comment by Justice Jackson, concurring in McDonald v. United States (1948). Jackson (who was also joined by Justice Frankfurter) argued that the police violated the Fourth Amendment by surreptitiously breaking into an apartment without a warrant, and without much of a showing of exigent circumstances; and he concluded this analysis thus (paragraph breaks added):
I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight.

Many home-owners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers.

But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.
The title of this post is a bit facetious -- this isn't actually a case involving the Second Amendment as such, and I doubt that any advocates of gun control would be (or should be) much swayed simply by the possibility that widespread private gun ownership may deter unconstitutional searches, or may move the courts to condemn such searches. (After all, widespread private gun ownership may also encourage more intrusive searches by the police, and may move the co rts to uphold such searches.) Still, it's interesting that Justices Jackson and Frankfurter, no wild-eyed revolutionaries, made this point, and made it in a pretty detached way.


Depraved driving: From District of Columbia v. Colts (1930), a Supreme Court case where the issue was whether a criminal offense was merely a "petty offense" and thus not subject to the constitutional jury trial guarantee (emphasis added):
An information filed in the Police Court of the District of Columbia charged the respondent, Colts, with having operated upon various streets, contrary to the statute set frth below, 'a certain motor vehicle at a greater rate of speed than twenty-two miles an hour over said public highway(s) recklessly, that is to say at a greater rate of speed than was reasonable and proper, having regard to the width of said public highway(s), the use thereof, and the traffic thereon, in such manner and condition so as to endanger property and individuals.' . . .

An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly 'as to endanger property and individuals' is an act of such obvious depravity that to characterize it as a petty offense would be to shock the general moral sense. . . .


More on the Drake subpoena: Two weeks ago, I blogged about the federal grand jury subpoenas issued to Drake University, and four activists who attended a Nov. 15 forum at Drake. The federal government's claim was that at the Nov. 15 forum people were actually conspiring to commit a criminal trespass at a military base; the trespass itself took place the following day. My view was (and still is) that such subpoenas to investigate potentially criminal activity -- the conspiracy to commit trespass -- are constitutionally permissible; and while I wasn't sure "that such subpoenas are the proper tools when investigating relatively low-level misconduct such as this," I thought they were improper.

     Nonetheless, as I mentioned in a later post, when the subpoenas were dropped, I was more troubled by another aspect of the case: The order that Drake not reveal the contents or the existence of subpoena. Such an order, I thought, might well be a violation of Drake's constitutional rights, and might keep Drake from blowing the whistle on the incident (though in fact the subpoena was indeed publicized by some people, whether via a violation by Drake or not). I said that I hoped to blog a bit more about that order.

     I've now managed to get copies of some of the key documents related to the nondisclosure order. I've also put the subpoena (or at least an early version of the subpoena; there seems to be a later version that I'm still trying to get) on the Web here, and motions and other documents related to the nondisclosure order here.

     Here's wha seems to have happened, according to the government: When Drake was first served with a subpoena for the records related to the Nov. 15 meeting -- the one at which the government claims people were conspiring to commit the trespass -- Drake "informed the [government] that some of the records requested in response to this subpoena fall within the broad category of 'education records', thereby activating the Family Educational and Privacy Rights Statute set forth at [20 U.S.C. sec. 1232g]." This statute, commonly known as FERPA, provides, in relevant part (1232g(b)(1)(J)), that:
(i) the entity or persons designated in a Federal grand jury subpoena, in which case the court shall order, for good cause shown, the educational agency or institution (and any officer, director, employee, agent, or attorney for such agency or institution) on which the subpoena is served, to not disclose to any person the existence or contents of the subpoena or any information furnished to the grand jury in response to the subpoena; and

(ii) the entity or persons designated in any other subpoena issued for a law enforcement purpose, in which case the court or other issuing agency may order, for good cause shown, the educational agency or institution (and any officer, director, employee, agent, or attorney for such agency or institution) on which the subpoena is served, to not disclose to any person the existence or contents of the subpoena or any information furnished in response to the subpoena.
The government therefore asked, pursuant to subsection (i), for an order that Drake "not . . . disclose the existence or contents" of the grand jury subpoena, and the court entered such an order.

     So here's what it seems like to me:

     (1) As I mentioned before, I believe the grand jury subpoenas were likely overkill, since they were investigating an all ged conspiracy to commit misdemeanor trespass -- not a very serious offense. Nonetheless, I think they are within the government's power to ask and the grand jury's power to issue, since they seem pretty closely focused at figuring out the attendance at the meeting that allegedly involved the conspiracy to commit trespass. (The demand for names of the organization's officers and meeting agendas and annual reports filed with the University may be less closely focused on the conspiracy, but even so I think they are probably subject to subpoena; and to my knowledge, such information tends to be not confidential, and I think not covered by First Amendment privacy-of-expressive-association guarantees.) And while I may disagree with the government's exercise of its prosecutorial discretion, I'm not that troubled by it.

     The nondisclosure order is, I think, probably required and certainly authorized by the best reading of FERPA. The statutory text does say "shall order, for good cause shown," which is rather opaque -- "shall order" seems to contemplate a mandate, as does the distinction from "may order" in the next subsection, while "for good cause shown" seems to contemplate a discretionary judgment by the court. Nor is it clear what is needed to show "good cause." Is the fact that the subpoena would reveal some records "directly related to a student" sufficient "good cause" for the nondisclosure order? Or is something else necessary? Nonetheless, it seems to me quite reasonable that, especially faced with Drake's reference to FERPA as a possible constraint, the government would seek the confidentiality order that the statute at least contemplates.

     Now I should say that I'm not wild about such confidentiality orders, even when statutorily authorized. I've generally argued in my Freedom of Speech and Information Privacy, 52 Stanford L. Rev. 1049 (2000), that many laws t at mandate nondisclosure of supposedly private information may violate the First Amendment. FERPA may be defensible on some semi-contractual grounds too complex to get into here; but one might certainly argue that this particular provision of FERPA should be struck down, and that educational institutions should be free to discuss subpoenas issued for student records.

     Nonetheless, mine is certainly not a majority view. It seems quite plausible that a prosecutor would think this FERPA provision is perfectly constitutional, and would therefore try to minimize any possible FERPA objections to the subpoena by asking the court for the confidentiality order that FERPA seems to contemplate.

     Thus, my conclusion: So while the prosecutors may be faulted for their exercise of prosecutorial discretion in issuing the records subpoena in the first place, I think their decision to seek the nondisclosure order is defensible, given the commands of FERPA.


ocons" supported McCain and are not especially welcome in the White House. The two highest ranking Jews near the president, Ari Fleischer and David Frum, both leave after short stints in the administration. Direct Jewish influence on the administration is as low as its been in any administration for as far back as my memory reaches; perhaps Eisenhower's is the last administration with as few Jews in high-level positions. The result? An orgy of anti-Semitic calumny from the Left accusing the Jew of dictating Bush's foreign policy on behalf of Israel.

[UPDATE: Perhaps the Left feels especially threatened when part of one of its traditional constituency groups "leaves the reservation?" The Adbusters piece has a strong subtext of "Progressive Jews=Good; Conservative Jews=evil, evil of a sort that cannot be explained by simple intellectual error but rather by parochialism and selfishness of the sort that traditional anti-Semitism attributed to all Jews. Black conservatives, I've noticed, also get tarred with the sort of anti-Black stereotypes that "progressives" would never apply to Blacks in general. Consider how frequently Clarence Thomas is said to be a slavish, foolish lackey of Nino Scalia. This would not explain, however, why the anti-neocon anti-Semitism comes as much or more from Europe, where Jews are generally not a significant force in politics on any side, as from the U.S.]


Jewouters: Adbusters magazine has decided that besides criticizing marketing, they also need to give a list of which leading conservatives are Jewish. A sample quote: "Some commentators are worried that these individuals -- labeled 'Likudniks' for their links to Israel's right wing Likud party -- do not distinguish enough between American and Israeli interests. For example, whose interests were they protecting in pushing for war in Iraq?"

     Yes, I know most of you will think I'm just peeved with Adbusters for not including my name on the list. Still, check out the article and see what you think about it. Michael Totten, through whom I learned of this item, has some rather apt criticisms. Thanks to InstaPundit for the pointer. And always remember: Most of the nonanonymous cobloggers on the Conspiracy are Jewish. (I'm not going to put little *s on the list on the left-hand side of the screen, though.) Let the aspersions begin.


Patriot Fight on the Right: Steve Lilienthal of the Free Congress Foundation and National Review's Ramesh Ponnuru duke it out over the USA Patriot Act and the proposed "Safe Act" amendments.


Conventions vs. legislatures: There are two ways that constitutional amendments can be sent to the states -- by a 2/3 vote in both houses of Congress, or by a convention called on the demand of 2/3 of the states. But there are also two ways that states can vote on the amendments: by a vote of the legislature or by a vote of a specially called state convention. Under the U.S. Constitution's article V, Congress gets to choose whether to call for ratification by legislatures or conventions.

     What are the pluses and minuses of Congress asking that any proposed Federal Marriage Amendment be voted on by state conventions? As I understand it, only the Twenty-First Amendment (the repeal of Prohibition) was ratified that way. My recollection is that this was supposedly because the amendment's backers thought their opponents (the pro-Prohibition forces) had more power over legislators than they would over convention delegates chosen for the sole purpose of voting on the Twenty-First Amendment.

     This explanation is not implausible: A politically well-organized minority is often able to block proposals in the legislature, even if they're supported by a majority of the voters. There are more procedural blocking maneuvers available in the legislature. To pass an amendment, one needs a majority vote of both houses (except, of course, in Nebraska). If the opponents of an amendment are better-organized and more intensely committed to the issue than are the supporters, then legislators may fear retaliation from the organized and intense minority more than from the less well-organized majority. And if the opponents of an amendment are powerful within the majority party in the legislature, they can often block the amendment by calling on party discipline within the institution. (Incidentally, an intensely committed minority's ability to win in a legi lature may be a good feature of the legislative process, not a bad one. I'm simply observing that it is a feature of legislatures more than of special-purpose conventions or of direct popular votes.)

     So my very first, extraordinarily tentative thought is that if the polls show broad public support for the particular proposed Federal Marriage Amendment, then calling for ratification by conventions would probably increase the chances of the Amendment being enacted. The majority popular support should translate fairly well into a convention majority (subject to the complexities caused by the delegates being chosen on a district-by-district basis); and it should be harder for the minority to block this majority support. (You may well ask: If this is so, why haven't more amendments been submitted this way? I answer: I have no idea, which is why this is an extraordinarily tentative thought of mine; I might be completely wrong.)

     On the other hand, if the polls show broad public support for the FMA, then calling for ratification by legislators would probably increase the political benefit to the party that most supports the FMA (likely the Republicans). If a pro-gay-marriage minority has enough power in, say, California to block the anti-gay-marriage majority's preferences, then it will do so by getting some Democratic legislators to vote against the views of their constituents (or at least in getting them to acquiesce in blocking any vote). This would be bad for the FMA's chances of passage, but good for Republicans' prospects of getting elected. (Possible caveat: If the Republicans generally benefit from talk about the FMA, and if a convention vote is more likely than a legislative vote to happen right around the general election, then conventions might be politically better for the Republicans.)

     I stress again that these are extremely tentative thoughts, and I reserve the right o utterly repudiate them should I be persuaded that they're wrong. Still, it might be good to start thinking about this, since there seems to be at least a decent chance of the FMA actually getting the 2/3 vote in both Houses.

     Items people might want to research: How quickly could the state conventions be called? Are delegates selected by popular vote in each district (in existing legislative districts, or specially defined districts?), by at-large popular vote of the whole state, or through some other mechanism? Is a majority vote enough for ratification in each convention? I believe that the convention rules are a matter of each state's law, so this could be a major research project, unless there's already a reference work that discusses this.


Quotes: The New York Times article about Bush's support for a proposed marriage amendment says:
Bush has indicated his support for a constitutional amendment in the past, including in a closed-door meeting with Republican lawmakers last month. At that session, according to one official in attendance, the president singled out Musgrave's proposal as one he could support, but did not endorse it.

The amendment that Musgrave and other lawmakers are backing in the House says: "Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Just two weeks ago, the Washington Post article quoted the Musgrave proposal this way:
Musgrave's proposal, called the Federal Marriage Amendment, states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
(See also the official text of H.J. Res 56 [thanks to Robert Tagorda for the pointer], this article, and this site.) Has the first sentence been stripped since then from the Musgrave proposal? I hadn't heard about that, and it would very much surprise me, but if it has, please do let me know about it. But if it's still part of the propos l, then it seems to me odd that the Times didn't quote the first sentence.

UPDATE: The New York Times article has been changed in various ways, and now omits any quote from the Musgrave draft amendment.


New Review of You Can't Say That! Published, of all places, in Industrial Heating, "The International Journal of Thermal Technology." [UPDATE: David Boaz of the Cato Institute notes that it's a *warm* review.]
Also, Top 1000 review Tucker Anderson has posted a thoughtful and well-written review.


Olympic Airways' Unusual Lineup: You don't see this every day: Justice Thomas writes the majority opinion for six members of the Court. Justice Scalia writes the dissent for himself and Justice O'Connor. The decision in Olympic Airways v. Husain, involving the air carrier's liability for the death of Husain's husband under the Article 17 of the Warsaw Convention, was just released this morning, so more details will follow once I've read it.

UPDATE: Here's the dispute between Justices Thomas and Scalia. Under Article 17 of the Warsaw Convention, air carriers are liable for a passenger's death caused by an "accident" occurring in connection with an international flight. Justice Thomas' majority opinion held that it is an "accident" under the Convention "when the carrier's unusual and unexpected refusal to assist a passenger is a link in a chain of causation" resulting in the passenger's death to the aggravation of a pre-existing medical condition. This conclusion was based upon the text of the Convention and the Supreme Court's prior decision in Air France v. Saks.

Justice Scalia argued that majority's opinion conflicts with judicial opinions of courts in "sister signatories" England and Australia. While not usually a fan of looking to foreign case law, Justice Scalia argued that the interpretations of treaty language by foreign courts are due "considerable weight." Among other things, such a doctrine will ensure more consistent application of a treaty's terms across nations. In Justice Scalia's view, the majority's reasoning conflicts with two foreign cases and fails to justify not following the foreign interpretations of the "accident" requirement. In perhaps the best line of the dissent (not joined by Justice O'Connor), Scalia rejects "[t]he Court's new absttmiousness with regard to foreign fare." Interestingly nough, as Justice Thomas' opinion points out, neither of the two judicial decisions in question is from a court of last resort. Rather, both of the opinions with which Justice Scalia is concerned are from intermediate courts.

The full opinions may be found here.


rect a fence as a security barrier separating it from P. I's fence project infuriates the P's. Their uniformed leader called the government of I to immediately halt the construction. But despite strong international pressure I does not seem to bend and its white haired prime minister recently called to expedite the project and finish the fence by the end of 2004.

If you thought the above 160 words describe the controversial fence currently being erected in the West Bank between Israel and the Palestinians you are in good company. Look again. I is not Israel and P is not Palestine. The story above describes another fence, three time zones away from the Middle East in the disputed area of Kashmir between India and Pakistan. Indeed, since Pakistani militants tried to storm the Indian Parliament in December 2001, India has embarked on an ambitious project aimed to seal its border with its enemy. The fence is only part of a multi-tiered system that includes mines, sensors, trenches and, in some parts, a high mud wall.

Now, ask yourself why you associated the above story with the Middle East and not with South Asia. Why does the action of a nation of six million people loom larger in your consciousness than that of one billion people? After all, the India-Pakistan conflict is just as enduring and fierce. It threatens world peace no less than the Palest nian-Israeli conflict. The Indian fence is at least twice as long as the Israeli. It too creates facts on the ground unilaterally; it too entails land grabs and separation of innocent farmers from their land.
You can read the rest of this piece here.


Econometrics and abortion: There is little doubt that most people do (and should) form their views on abortion primiarly through ethics, religion, and philosophy. Nonetheless abortion policy also has significant consequentialist elements. That is, to whatever extent we ban or legalize or regulate abortion, this decision has practical repercussions.

Now, for the first time, I have come across a survey of the econometric literature on abortion policy. It is written by Jon Klick, a very smart guy at AEI, and a former student of mine. The topics include "the effect on incentives on sexual activity, the effect of limiting unwanted births on welfare payments, crime rates, and women's educational attainment, as well as the direct effect of changes in abortion policy on abortion and fertility decisions."

Here is the link. The paper surveys statistical concepts but does not require quantitative expertise. It is well-written and covers a variety of highly emotional issues in a scholarly and dispassionate manner.

Monday, February 23, 2004


Book Tour This Week: This week I will be speaking on Restoring the Lost Constitution in Philadelphia on Wednesday, February 25th at:

Temple law school (@ noon)
Penn law school (@ 4:30PM)

Next week: Southern California (Chapman, UCLA, Pepperdine, USC, Loyola, U of San Diego)

Full tour schedule is here (with new additions of Tulane, Yale & Georgia in March)

This whole tour thing has been a lot of fun so far. I have met a host of very engaging people, mostly students, and many have come up to identify themselves as VC readers. The only drawback, apart from weariness, is that is hard to find the time to read enough on line to be able to blog.


National What?: "I don't think the NEA is a terrorist organization," said Rendell, who has butted heads with the group as well. "They're not a terrorist organization any more than the National Business Organization is a terrorist organization."

Except that there is no such thing as the "National Business Organization."


Nader and PIRGs: This appears to be the moment to finally establish in everyone's mind the deep fraudulence and corruptness of Ralph Nader's various enterprises. Nobody has an interest in covering up for him now.

See: Mark Kleiman, Jane Galt, Zach Wendling, Radley Balko.

Jane's post in particular sounds like the stories of many, many collegiate idealists I've known who went off for PIRG work and canvassing for a summer and returned with really bitter disgust at the enterprise. It's also noteworthy that the PIRGs are the only major example of mandatory student activity dues getting systematically channeled off-campus into political causes. It's more common for off-campus political organizations to subsidize undergrad activities, so that they can publish newspapers, invite speakers, or work on campaigns that they'd be unable to afford just from their cut of the student activities fee. PIRGs, by contrast, extract money from campusesin order to fund their ongoing operations-- which consist of a little bit of 'organizing' and a lot of further fund-raising.


They said it couldn't be done (really, several people did say that), but Kevin Aylward told me how to do it. You will respect his authority. To see all posts linking to a particular post, just click on the link right near the post's header. Many thanks to Kevin for the know-how, and to the excellent for the underlying service.


Matt channels the 18th century: Matt Ygelsias:
The real progress paradox isn't "why doesn't all our stuff make us happy" but rather, given that all our stuff pretty clearly doesn't make us happy, how do we come to have all this stuff.
On the personal level, when I got my first cell phone, I was thrilled with it. By a couple weeks ago, as reported on Wonkette, I was at Best Buy complaining about how crappy my old phone was. Then it broke on Friday, and today my spiffy new one should come in the mail. Getting the new phone will make me happy for, maybe, a week or two, but soon enough it's just going to be part of the landscape. That fact is totally clear to me, and yet I still want the new phone. I'm hoping to move out of my shitty basement in a few months into a nicer place, but I'm well aware that after occupying the hypothetical new place for a while, I'll just start taking it for granted.

On a world-historical level, it doesn't seem that contemporary hunter-gatherers are noteably less happy than people with much, much, much more comfortable lives in the developed world. And today's hunter-gatherers occupy distinctly marginal habitats compared to what was available to similarly-organized societies thousands of years ago. And yet the drive to "progress" on an individual level -- get more cell phones and so forth -- keeps on driving social progress to ever-greater technological development, higher standards of living and so forth.

There's an interesting story to be told about how all this works, despite the fact that no one really comes to appreciate it
Jean-Jacques Rousseau:
The simplicity and solitude of man's life in this new condition, the paucity of his wants, and the implements he had invented to satisfy them, left him a great deal of leisure, which he employed to f rnish himself with many conveniences unknown to his fathers: and this was the first yoke he inadvertently imposed on himself, and the first source of the evils he prepared for his descendants. For, besides continuing thus to enervate both body and mind, these conveniences lost with use almost all their power to please, and even degenerated into real needs, till the want of them became far more disagreeable than the possession of them had been pleasant. Men would have been unhappy at the loss of them, though the possession did not make them happy....So long as men remained content with their rustic huts, so long as they were satisfied with clothes made of the skins of animals and sewn together with thorns and fish-bones, adorned themselves only with feathers and shells, and continued to paint their bodies different colours, to improve and beautify their bows and arrows and to make with sharp-edged stones fishing boats or clumsy musical instruments; in a word, so long as they undertook only what a single person could accomplish, and confined themselves to such arts as did not require the joint labour of several hands, they lived free, healthy, honest and happy lives, so long as their nature allowed, and as they continued to enjoy the pleasures of mutual and independent intercourse. But from the moment one man began to stand in need of the help of another; from the moment it appeared advantageous to any one man to have enough provisions for two, equality disappeared, property was introduced, work became indispensable, and vast forests became smiling fields, which man had to water with the sweat of his brow, and where slavery and misery were soon seen to germinate and grow up with the crops.
See also: Adam Smith.


Impossibility theorems: Eugene is, I guess, too polite to say so in the post immediately below, but: when Ponnuru asked whether Eugene thought it was "impossible to devise amendment language that would block the federal and state courts from creating civil unions while allowing state legislatures to create them," he was asking whether Eugene agreed with a claim I made in my TNR column last week. Just so everyone's clear-- Eugene has now said he does not agree with that claim. I bear sole responsibility for it.

For my part, I'm going to go think about it some more, but I'm provisionally sticking to my guns. Ponnuru's proposed change of wording (which I do think would be a genuine improvement in an amendment I'd nonetheless still oppose) concerns constitution and statute, a distinction that does not perfectly track that between judiciary and legislature. The judiciary can't order the legislature around without constitutional warrant. But it can order around executive officials on the basis of legislative warrant.

Say that a state has a pretty expansive nondiscrimination statute, one that includes both sex and sexual orientation. And say that that statute binds county and municipal governments as well as private actors. (It can't bind the legislature itself, of course, because it's only a statute; that's what the equal protection clause of a constitution is for.)

One of the partners in a gay couple is employed by a city government. Petitions for his or her partner to be treated like a spouse for purposes of benefits, is denied. Petitions for injunctive relief under the nondiscrimination statute, rather than the equivalent constitutional clause.

I'm not saying that courts necessarily will order such relief. But they could. They could order that all entities (municipal and private) bound by the state's nondiscrimination statute provide benefits to gay employees' partners equival nt to those provided to spouses; could order private hospitals so bound to respect the wishes of gay partners as if they were spouses; etc. They could order that all the incidents of marriage be granted, albeit not the word, in effect 'creating' civil unions-- or, rather, finding them to be already demanded by the 'sweeping generalities' of the law that the legislature has put in place and that the court is obliged to construe.

Maybe these would be bad judges. Maybe a better interpretive theory would deny that they have the right to do this. But they couldn't be procedurally stopped from doing it, under the Ponnuru amendment. A judiciary that is free to construe very specific legislative acts as creating civil marriage is also going to remain free to construe more general legislative acts as doing so.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each." One can't get around that with a procedural fix.


want to rehash my past posts on the matter (which Ponnuru links to). Let me summarize this simply: Ponnuru's response to my argument hinges, I think, on the statement that "It seems highly unlikely that, once the marriage amendment passes, the federal courts will be straining to interpret it in the way most hostile to same-sex couples," coupled with the assertion that his interpretation is the most plausible one. I don't entirely agree with the latter point, since I think both his and my interpretations are plausible readings of the text.

     But beyond this, I'm curious: Why is it so unlikely that "federal courts will be straining to interpret [the Amendment] in the way most hostile to same-sex couples"? Some judges may strain to interpret the Amendment in the most pro-civil-union friendly way possible. Some may strain to interpret it in the most anti-civil-union friendly way possible. Still others may sincerely try to set aside their prejudices, but will still find two interpretations that are both plausible, and might resolve the ambiguity in favor of the more anti-civil-union interpretation.

     What's more, the Amendment will have to be interpreted by state judges as well as federal ones. There may be dozens of judges who'll be called on to interpret it, before it gets to the U.S. Supreme Court (which might take decades, if lower court judges are more or less in agreement on the subject). It seems to me that rather than enacting an ambiguous amendment and hoping that judges interpret it reasonably, it would be better to enact an unambiguous one ( r none at all).

     To his credit, Ponnuru does propose something that would resolve the ambiguity: "Strike the words 'state or' from the second sentence of the amendment. That is to say, make it possible for a state law to be construed to require the conferral of benefits on same-sex couples. But continue to block the construal of a state constitution that way." The amendment would then read:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
And this amendment would indeed prevent the problem I describe. A state legislature or state voters would still be free to enact a state civil unions law, and state courts and executive officials would then be free to construe the law to require that certain benefits be conferred upon unmarried couples (which is what the law would by its terms command).

     I would still oppose the Ponnuru Amendment on two grounds; first, I don't see why states that do want to set up gay marriages should be barred from doing so, and, second, I don't think the U.S. Constitution ought to protect state citizens and legislators from the overreaching of their own state courts (at least where no individual constitutional right is violated by this). State courts' misconduct should be dealt with by the state voters and legislators through the state constitutional amendment process. But I wouldn't be as troubled by it, because it would still leave state legislators and voters free to set up civil unions.

     This also helps answer the question Ponnuru asks me: Do I think "that it is impossible to devise amendment language that would block the federal and state courts from creating civil unions while allowing state legislatures to create them"? I don't think so, and I think Ponnuru has done a pretty good job with his proposal. I've only thought about his language for a brief time, and reserve the right to change my mind; but even if I do, I expect that I could suggest some helpful changes, rather than just concluding that Ponnuru's project is impossible.


Trackbacks: Is there an incredibly easy, entirely reliable way to include trackbacks in our blog -- which is to say, provide for each post the links to those sites that link to us? If you know, please let me know at volokh at Only incredibly easy, entirely reliable ways, though, are sought. I'm swamped right now, and have a tiny amount of time to devote to this, I'm sorry to say.


Consumer Fraud?: Only 58% of African American matriculants to law school complete law school and pass the bar exam, compared to 86% of white matriculants. TRANSCRIPT OF THE BOSTON BAR ASSOCIATION DIVERSITY COMMITTEE CONFERENCE: RECRUITING, HIRING AND RETAINING LAWYERS OF COLOR, Boston Bar Journal, May/June 2000 (available on Westlaw). Of the 42% who never become lawyers, about half don't make it through law school, while the other half never pass the bar exam.
At the top third of law schools, 91% of African Americans graduate, and 84% of them pass the bar. These statistics suggest that once one gets to the bottom half of American law schools, well less than half of African American matriculants ever become attorneys. This is all, of course, a result of admissions policies pursued in the name of "racial justice."


Blogger e-mail delivery: For several weeks now, Blogger hasn't been delivering posts to our e-mail subscribers, even though we've configured it to do so. Does anyone know what the problem might be, and whether there's a workaround? Thanks!


New RSS feed: is apparently down, but the Blogger RSS feed for the site -- -- ought to work. Once upon a time, there were syntax problems in the Blogger XML code generation, which is why we switched to Blogmatrix; but I hope that they're fixed now. Please let me know if you continue to have problems with this.


Bubble boy: Kevin Drum asks:
With the specialized exception of Eisenhower, every single other president has had at least 14 years between first winning political office and becoming president. George Bush had six.

I just don't get it. Sure, he's a Bush, but even so how did he manage to convince the vast majority of the Republican party apparatus that he should be their favored candidate? After all, he had minimal experience, he obviously didn't have any special intellectual or personality characteristics that make you sit up and take notice, and his father wasn't even that popular with most Republicans after his dismal loss in 1992.

So how did he do it? It remains, to me, the most mysterious of questions.
I was actually thinking about this over the weekend, after reading the NYT's Week in Review retrospective of the Dean bubble, with the recent Kerry-bubble debate in mind as well.

Because W was a bubble candidate, in just the same way.

The early history, you may remember, went something like this. The Bush heir apparent, Jeb, let down the family side by not winning his first Florida gubernatorial race in 1994, while George W (then universally considered the weaker of the two as a future leader) won himself some giant-killer credibility by beating family enemy Ann Richards and taking the Texas governorship.

By early 1998, George W. was getting included in some of the standard matchup poll questions regarding the 2000 election. By May '98, he was leading the Republican field in polls, and matching or slightly beating Gore in the hypothetical presidential race. He had by that time been in office less than four years. When he ran for re-election in 1998 it was a live question whether he was even seriously thinking about running for President. But the e were those polls.

1998, you may recall, was the Year of Monica. That made it a good time for a certain kind of nostalgia about the boring, preppy, upper-class awkward northeastern stiff of a president who preceded the libidinous southern lawyer-- the one who couldn't complete a sentence with a subject and a verb, rather than the one whose sentences seemed carefully parsed and prepared to avoid perjury charges. That earlier President was named George Bush. And it appears that a fair number of the people who expressed support for George Bush in the polls didn't understand that there were two of them. Not unreasonable, actually. While only one President has served non-consecutive terms, it's not that uncommon at the level of Governor or Representative. People reprise past electoral matchups, or just come back and avenge past defeats (Nixon '68, for example). As examples of political ignorance go, voters who thought in 1998 that George HW Bush might run for President again isn't an especially egregious one.

That wasn't the whole story behind W's rise in the polls. Texans, presumably, knew who W was, and voiced their support (they re-elected him in a landslide in 1998, after all). And none of the other Republican candidates came from such big states. Some Republican loyalists were just excited about the man who had beat Richards. And some probably let their HW nostalgia rub off on W, understanding that they were not the same person.

In any event, W had a very, very good 1998 in the opinion polls. And there were a lot of very energized Republicans who badly wanted to beat Gore in 2000, people who wanted to support a strong Republican candidate who had a good chance of winning. Though this wasn't the word used, they wanted someone who was electable. And so they gave, and raised, money for a W-for-President campaign. And then they gave, and raised, some more. Movement conservatives were ambivalent, as were Congressional Republicans. But eventually, all that mo ey became even more important than the poll numbers in making W look electable, look like a very strong candidate. A bubble. People who didn't necessarily think, in their own right, that W was the strongest future president saw that there were other people who supported him. They came to support him on that basis, and it grew.
He (like Kerry) was helped by the fact that his major challenger in the pre-primary competition proved a complete bust: Elizabeth Dole. By the time she dropped out and John McCain stepped up as the major challenge to W, the latter had so much money and so much party support that he was pretty much unstoppable.

Of course, that's what we all thought about Dean two months ago. Then the bubble popped. Dean started saying dumb things, started taking serious attacks, and stopped seeming so invincible. The more vincible he seemed, the less he seemed like a sure bet to beat W, and the more support he lost. What was different in 2000? Why didn't W's bubble pop after New Hampshire?

One difference is: W by then had only one serious challenger left, McCain. He could, and did, go after McCain with a vengeance in South Carolina. When the air started going out of Dean's bubble, he couldn't respond by taking his opponents out; there were too many of them. Increasing Gephardt's negatives helped Edwards, not Dean, and so on. The other is: Dean blew all his money. W got bloodied in New Hampshire, and still had an ungodly amount of bubble money left with which to crush McCain.

Given this year's proccupation with describing campaigns in terms of stock bubbles, I propose the following as a way to understand what happened in 1998-2000. If you time things right, you can still make a killing in a bubble market. One of the ways to do that is to translate the bubble-currency into something else before it's too late. Turn all your AOL stock into ownership of Time-Warner, for example. W turned his opinion-poll bubble into money and institutional support; he held onto the latter resources so that he didn't collapse the first time he ceased to look electable (New Hampshire); and he got luckier than Dean in terms of who his opponents were and how many of them were still around. So he managed to translate a bubble-resource into a hard-resource at the right time.

All of which means that bubble-like support doesn't necessarily doom a candidate. John Kerry can take hope, I think.


The economics of Mozart: Most of you probably already know I am a big fan of It has some of the freshest writing in the blogosphere, combining such diverse topics as culture, economics, cinema, and evolutionary biology.

Read Michael's recent treatment of The Economics of Mozart. The bottom line? Mozart was a successful commercial entrepreneur. His economic problems stemmed from a war with Turkey, not the failures of the marketplace.

Here is a lengthy post of theirs on The Dreamers, a movie which I quite enjoyed but am unwilling to defend in public.


YOU ARE A FEDERAL RULE OF CIVIL PROCEDURE: You just don't know it yet. To find out which rule you are, take this short quiz.

I am Rule 11:

You were designed to make sure that attorneys in federal cases make reasonable inquiries into fact or law before submitting pleadings, motions, or other papers. You were a real hardass in 1983, when you snuffed out all legal creativity from federal proceedings and embarrassed well-meaning but overzealous attorneys. You loosened up a bit in 1993, when you began allowing plaintiffs to make allegations in their complaints that are likely to have evidenciary support after discovery, and when you allowed a 21 day period for the erring attorney to withdraw the errant motion. Sure, you keep everything running on the up and up, but it's clear that things would be a lot more fun without you around.

On the one hand, I accept this rule as my own because I have always felt that Rule 11 sanctions should be more common. On the other hand, I don't understand how saying that I listen to the Sex Pistols and would want my party guests to be as eclectic as possible would get me to this point.

Sunday, February 22, 2004


Sunday Song Lyric: Someone broke into my car the other night and stole about 20 CDs. Among the purloined discs was one of my all-time favorites: Bob Mouldís Workbook. The former front man for Husker Du, Mouldís solo debut is absolutely phenomenal. The music is powerfully seductive, the guitar-playing masterful, and the lyrics wracked with pain. While I might prefer to post Poison Years, to reflect my feelings for those who violated my vehicle, I think Heartbreak a Stranger is a better representation of Mouldís lyrical work.
Days come, days go by
So it matters, so you say
But it's all coming back in a way
And nothing will ever change
The words exchanged for revenge inside
You know these things take time

Now and then, these words
Make me laugh so powerful
Going through several lies
They've never been so true

I know that I'm used to time
You know what it is, don't you?
Some words make us all cry
It's so talented

If anybody could read my mind
And share with me these thoughts
Of all the enemies left behind
And friends that time forgot
Pretending nothing could ever faze you
Well, some things never change
Tell me why do these words ring home
How can you heartbreak a stranger?

Days come, days go by
So it matters, so you say
But it's all coming back in a way
And everyone knows a way
And everybody runs away
From somebody who cries

If anybody could read my mind
And share with me these thoughts
Of all the enemies left behind
And frie ds that time forgot
Pretending nothing could ever faze you
Well, some things never change
Tell me why do these words ring home
How can you heartbreak a stranger?
More recently Mould has begun toying with electronica. The songs and lyrics remain strong, but the production values are quite a bit different. Synth sounds and drum beats replace the intricate, yet howling, guitar lines of his earlier work. Old Mould, Sugar, or Husker Du fans can learn more about his latest offerings here, or check out Boblog.


Past Sunday Song Lyrics: For easy reference, here are links to past Sunday Song Lyrics:

- Feb. 15 - Yaz, Ode to Boy
- Feb. 8 - Joe Jackson, Obvious Song
- Feb. 1 - The The, December Sunlight
- Jan. 25 - Hank Williams, I'm So Lonesome, I Could Cry


Nader on the Ballot: Ralph Nader is running for President again. Democrats no doubt fear Nader's candidacy will draw significant votes from the Democratic nominee, thereby swinging the election to President Bush. This scenario is possible, but for Nader to have a significant impact on the presidential election, he will need to be on the ballot -- and in some states that may be tough. Nader's decision to run as a true independent, and forego the Green Party endorsement, means that he may have a more difficult time navigating the various state ballot access requirements (which are summarized by the Nader campaign here). On Meet The Press, Tim Russert quoted a Green Party official claiming Nader would be lucky to get on the ballot in 40 states. Whatever the effect of Nader's campaign on the 2004 election, if it invigorates efforts to improve ballot access for third parties, it will be a plus for the nation.

UPDATE: Instapundit thinks I'm terribly observant, Professor Bainbridge disagrees.

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