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Saturday, March 20, 2004


Modern Antidiscrimination Ideology, 'Nuff Said: From the Guardian: David Winnick, a member of the Commons home affairs select committee, said only somebody who was "psychotic" would question anti-discrimination laws.


Elsewhere: Those interested in slippery slope arguments (which must, by now, include almost all Volokh readers) won't want to miss Julian Sanchez's post carefully distinguishing slippery slope arguments from the reductio ad absurdum.

Those interested in distinguished University of Chicago libertarians, comics, Neil Gaiman, and intellectual property(a set which I'm sure includes at least somebody besides me) should also read Julian's post here, and follow the links. The opinion is terrifically entertaining, but I'm disappointed that its author didn't take the opportunity presented to clear up the related Miracleman mess-- or even to lay it out in the same way that he laid out the story in Spawn and the story about Spawn.

Curiously enough, the villain of the story, Todd McFarlane (ruled against by the aforementioned distinguished University of Chicago libertarian) is already familiar to non-comics-reading Conspiracy fans, as Eugene co-authored an amicus brief on his behalf in an unrelated comics case. I see no contradiction between thinking McFarlane was in the right (crude, but in the right) in the Tony Twist case and thinking he's in the wrong on both Spawn and Miracleman.


Jury verdicts time series: Does anyone know where I can quickly find a good time series on average jury verdicts (or some other similar proxy for volume of litigation in some form) from the early 1960s to the late 1990s?


More on Matt Bowles and the ACLU: Sharleen Mondal's blog has a worthwhile debate between Sharleen and "Mike" over Mr. Bowles, 9-11 Field Organizer for the ACLU. Sharleen argues, contra what I have written, that Bowles did nothing improper in leading a "silent" protest of a Daniel Pipes speech, nor has he supported Palestinian terrorism. Mike gives further details supporting the view that the protest was disruptive and not-so-silent, and thus clearly contrary to ACLU values, and agrees with my reading of Bowles' "no justice no peace" article as endorsing Palestinian terrorism, a rather awkward position for a fellow working on 9-11 issues.

UPDATE: And here is Bowles writing in Cairo's Al-Ahram Weekly about terrorism:
The politically vacuous "terrorist" label is a prominent fragment of highly racialised hate rhetoric used to demonise Third World people of colour in general and Arab and Muslim people in particular. Ironically, since "terrorism" is the central discourse currently justifying the US conquest of the Middle East, Arab- American "leaders" who wish to build ties to the White House do so at the expense of confronting such labels or developing a politically useful critique of US imperialism. (via Classical Values)
So there you have it, it's not simply that one's man terrorist is another man's freedom fighter, the term terrorist itself is simply hate speech against Arabs [edit: btw, since when, other for political convenience, are Arabs "people of color"?] The ACLU is supposed to be a serious organization, and we certainly need a serious organization to be a civil liberties watchdog during the War on Terror. But for the ACLU to be taken seriously, the public needs to be convinced that its fighting for civil liberties, not for terrorists.


The Heckler's Veto at Virginia Commonwealth University: Meryl Yourish reports:
A student group called Supporters of a Safe Israel at Virginia Commonwealth University wants to bring the [very controversial] Daniel Pipes to VCU for a lecture. However, due to the current anti-Israel climate on many college campuses, whenever a group brings a pro-Israel speaker, the colleges demand extra security due to the protests and controversy that will ensue. SSI needs to raise an extra $5,000 [UPDATE: Meryl has update her blog to reflect that only $350 of the money the organization needs to raise is for the extra security], and they've only got about a month.
VCU policy (see p.9) grants the university discretion to require security for student-sponsored events, either for crowd control purposes, "or for other circumstances." I suspect that as applied to the Pipes visit, where the security will be because of the controversial nature of Pipes' views (among other things, he is often--and falsely--accused of being "anti-Muslim"), and not for crowd control, VCU’s policy is unconstitutional. The closest case on point is Forsyth County v. Nationalist Movement, in which the Supreme Court invalidated a county rule that allowed the county to condition a demonstration permit on the organizers paying the county in advance for security. The Court noted:
The county envisions that the administrator, in appropriate instances, will assess a fee to cover "the cost of necessary and reasonable protection of persons participating in or observing said . . . activit[y]." In order to assess accurately the cost of security for parade participants, the administrator must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.
VCU seems to be doing something very similar here, requiring Supporters of a Safe Israel to commit to spending more on security based on its assessment of how it perceives Pipes’ speech will be received.

The Court added: "The costs to which petitioner refers are those associated with the public's reaction to the speech. Listeners' reaction to speech is not a content neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." See also Judge Posner's opinion in Church of the American Knights of the Ku Klux Klan v. City of Gary, Ind., emphasizing that parade organizers cannot be charged a security bill based on the controversy of their message even if the bill is determined with exactitude by "an army of cost accountants."

VCU’s policy is not only allowing but encouraging a heckler’s veto–anti-Israel activists know that if they just make a few threatening gestures, VCU will impose extra costs on the pro-Israel community anytime it wants to bring in a pro-Israel speaker. The "hostile mob" is thus rewarded.

This is not, it should be noted, a case in which the student group is demanding that VCU provide it with free extra security, which would raise the separate additional issue of what obligations a public university has to provide security for speakers brought by student groups. Rather, it appears that VCU is going to provide the extra security whether the students think it necessary or desireable or not. The question is whether VCU can force the students to pay for this security.

I should also note that VCU does not seem to be discriminating against Supporters of a Safe Israel, but is rather applying its seemingly unconstitutional policy in a context in which its deficiencies are glaring. I'll forward this information to FIRE and the Virginia ACLU on Monday, and see what they have to say.

UPDATE: A $350 "tax"on speech does not have the same chilling effect on speech that $5,000 has, but the constitutional principle is the same: neither VCU, nor any other public university, should require student organizations bringing in controversial speakers to pay for extra security based on the controversial nature of the speech.

Friday, March 19, 2004


1st Annual Liberty Conference in Boston: On Saturday, March 27th, the Boston University Libertarian Society is sponsoring its 1st Annual Liberty Conference. It is open to any and all students who wish to attend, and many have registered from other schools and cities. I am speaking on "Anarchism and the Constitution." Other speakers are: Jeffrey Miron (Boston University), James Stacy Taylor (Louisiana State University), and David Beito (University of Alabama). As an officially sponsored BU student event, there is no charge to attend, but you must register. Why not organize a group of friends to attend?

The conference will begin at 10:00am and end at 5:00pm, with a break for lunch. The event will take place in the College of Arts & Sciences, Room 211. You can register here. Be one of the first 40 people to register and you will receive a complimentary Boston University Libertarian Society mug. It should be a fun and informative day. Direct any questions to


Further federalism: Spencer Ackerman responds to my defense of the Iraqi Transitional Administrative Law.

Other furthers: Rich Lowry has acknowledged the mistake I pointed out yesterday in his debate with Al Franken
I did indeed misread Franken in the way described below--and did it in a very snotty way. I duly stand corrected. While we're involved in counting issues, please count me as redfaced!


The Absurd World of "Middle East Studies": Why do the poobahs of the world of "Middle East Studies" recoil in horror any time anyone threatens to call attention to their discipline? Because it is such a relentlessly one-sided, politiciized discipline that it could not possibly withstand public scrutiny. The latest evidence? The refusal of the Middle East Studies Association--which has slathered all over the late English professor (later promoted to "univeristy professor") and self-described "Palestinian" activist Edward Said--to name Bernard Lewis, truly one of the great Middle Eastern scholars of the our times, an honorary fellow recognizing him as one of the ten "outstanding internationally recognized scholars who have made major contributions to Middle East studies." (via The Right Coast)


"Victory" for Diversity of Opinion at Emory: Erin O'Connor reports (and I heard this story when I spoke at Emory about speech codes and academic freedom on Tuesday) that when the College Republicans at Emory sought funding for the student council to bring David Horowitz to speak on campus, two university administrators appeared before the council to urge it not to approve funding:
In an editorial published by the Emory Wheel, Ezra Greenberg, an Emory student and member of the College Republicans, described one of the administrators' arguments thus:

Assistant Dean of Campus Life Vera Rorie delivered a speech littered with euphemisms and doublespeak, all but urging the Council to vote against someone who would “divide us.” Rorie”s statements exhibited classic, anti-free expression duplicity.

“We are all for free speech, but ...” and “We are all for academic freedom, but ...,” Rorie said.

She insisted, “If we were to take a vote, I”m sure everyone is this room would support free speech.” Yet supporting free speech in the abstract is meaningless.

The question is whether you will allow someone whom you detest to speak, or if you will boo and hiss, as anti-Horowitz students did last year but campus conservatives have declined to do time and again.

Race, according to Rorie, is a very delicate issue, which she is obviously mature enough to discuss, while campus conservatives are not. Writing in the Wheel a few weeks ago, she said that her white colleagues could not look at race in the same way she could, because “the very existence of white privilege and institutional racism frames our experiences differently.”

What happened next is little short of astonishing. Rorie received a hostile email from one S. Siles, sent from an email address. The email was a brutally pointed reminder to Rorie that the internet makes it possible for her actions and words as an administrator to be judged by the world. Quoting her confused comments about free speech and academic freedom, the email condemns Rorie as a censor and a fool:

Here's some free speech: you, madam, are incompetent and a buffoon. The internet is making it more difficult for people like you to hide behind the walls of academia. I also would like to remind you that internet search engines record these articles instantly and forever for posterity to see.

That's not the astonishing part (as any blogger knows, having a public presence, however small, attracts its share of hate mail). The astonishing part is Rorie's response, which is recorded on the Emory College Republicans' web site. After the Horowitz vote, Rorie had agreed to meet with Greenberg and Ed Thayer, the Chairman of the CRs, to discuss alternative possibilities for bringing a conservative speaker to campus. But when she got the email quoted above, she withdrew her offer in an email that effectively blamed them for the fact that S. Siles felt compelled to give her an electronic piece of his mind. She wrote:

Dear Ed & Ezra,
My office had offered to assist the College Republicans in planning an event that would bring a conservative speaker of your choice to campus. In light of the attached email and link it is clear that you are not interested in practing [sic] community. The information you provided to outsiders is the source of the enclosed personal attacts [sic] on me. I am rescinding the offer to meet.I will not participate in email name calling or personal assaults.
Dean Vera Dixon Rorie
Erin reports that there is good news:
Negative publicity has done its work at Emory. A reader reports that Emory president James Wagner has apologized to the College Republicans for Dean Vera Rorie's censorious and punitive behavior, and that, despite being denied funding by the Emory College Council, the CRs have raised enough money to bring David Horowitz to campus next month after all.
Frankly, I am much less enthusiastic about this outcome than is Erin. A college administrator who engages in such blatantly biased and unprofessional behavior should be disciplined (I don’t think anyone ever gets fired on a university campus unless he does something illegal) (oh, and for those of you who will instinctively cast aspersions, when I heard the story on Tuesday from Prof. Ann Hartle with fewer details, I suggested immediately that Dean Rorie's behavior should have professional repercussions, and at the time I had no idea that she was African American). Is there any indication that Dean Rorie has suffered any negative consequences for her actions? And why hasn't she apologized? And if Emory's president really wanted to square things with the CRs, how about if he offered to use college funds to bring in Horowitz, allowing the CRs to use the money they raised for other purposes? I think that we have come to expect so little from spineless college presidents that even the most minimum signs of decent behavior are seen as great victories.

POSTSCRIPT: At my own alma mater, Brandeis, I had personal experience with a "student life" administrator who obviously believed that part of her role was to make the university as unwelcoming as possible for Republican, conservative, and libertarian students. So forgive me if I take this one a little personally.


School recognizes student's right to wear anti-abortion shirt: I blogged a few weeks ago about the school's forbidding the shirt; I'm glad that the school has changed its views:
A Denbigh High School student prevented from wearing an anti-abortion sweatshirt in school last month by a school administrator now can wear it after a Michigan law center raised the possibility of a lawsuit.

An assistant principal told Daniel Goergen on Feb. 18 to remove the sweatshirt or turn it inside-out. Printed in white letters on the front of the black, hooded sweatshirt are the words "Abortion is homicide." The back reads "You will not silence my message / You will not mock my God / You will stop killing my generation." . . .

"The fundamental question is whether or not wearing some garment with a message on it is going to create a disturbance, an immediate disturbance," [Chief Deputy City Attorney Leonard Wallin] said. "If there isn't a reasonable belief that it's going to create a disturbance (school officials) can't ban the message even if they turn out to be wrong after the fact." . . .

When he went to Denbigh High on Feb. 26 to ask why his son could not wear the sweatshirt, Martin Goergen said he was shown the derogatory written materials section of the student Rights and Responsibilities Handbook.

It says that any written material or pictures "that convey an offensive, racial, obscene, or sexually suggestive message" is prevented. . . .

The law center has an arrangement with Rock For Life - a pro-life youth organization that sells the black sweatshirt and other anti-abortion merchandise - to represent students and others free of charge who are challenged or harassed while wearing similar items. The law center is a non-profit organization.

"Whenever a student buys their merchandise, they get a letter from us defining their constitutional right to wear the (item) and to call us if they run into problems," he said. . . .
I like it -- clothes that come with a law firm attached. Thanks to Becky Dale for the pointer.


Christa Ludwig at 75: Here is an excellent profile of one of the world's leading singers. I hadn't known she got her start singing Gershwin to American serviceman after the war. If you don't know her incandescent recordings of Brahms, Schubert, Mahler and others, go buy some. Here is a link to a fan site about her.

Thursday, March 18, 2004


More on the New York prosecutions of ministers who conduct same-sex marriages: CNN reports that the ministers apparently "signed affidavits for the couples they married," which might indeed make their actions potentially deceptive. (Affidavits are often quickly skimmed by bored clerks who never saw the parties, and who might not notice, even if the form mentions it, that both the people being married were men.) But the prosecutor is apparently prosecuting the ministers not on charges of false statements on affidavits, but for illegally solemnizing marriages. As I read New York law, solemnizing means simply conducting the ceremony, not signing any affidavit:
Domestic Relations Law sec. 12: "No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony."

Domestic Relations Law sec. 17: "If any clergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided or with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article he shall be guilty of a misdemeanor . . . ."

Penal Law sec. 255.00: "A person is guilty of unlawfully solemnizing a marriage[, a misdemeanor,] when: 1. Knowing that he is not authorized by the laws of this state to do so, he performs a marriage ceremony or presumes to solemnize a marriage; or 2. Being authorized by the laws of this state to perform marriage ceremonies and to solemnize marriages, he performs a marriage ceremony or solemnizes a marriage knowing that a legal impediment to such marriage exists."
Curiously, if sec. 12 is read as the definition of solemnization (no section explicitly defines solemnization as a term), then conducting a same-sex marriage ceremony wouldn't be solemnization because the parties aren't taking each other as husband and wife. In any event, though, Penal Code sec. 255.00 would still prohibit the conducting of a marriage ceremony, whether it's a solemnization or not.

     So the alleged solemnization consists simply of conducting the ceremony, with no regard for the affidavit. What's more, though the prosecutor disclaims any desire to prosecute ministers for conducting purely religious ceremonies, the statute applies equally even to ceremonies that everyone understands are intended purely as religious ceremonies, not civil ones -- after all, "perform[ing] a marriage ceremony . . . knowing that a legal impediment to such marriage exists" is itself a misdemeanor under sec. 255.00. So I continue to be troubled by New York law.

     Glen Whitman has also written about this issue, here and here.


ACLU Employs Terrorism Apologist for 9/11-Related Job: I've now confirmed with the ACLU that Matt Bowles' official title with the ACLU is "National 9-11 Field Organizer." Mr. Bowles is author of a remarkable anti-Israel article which at best apologizes for terrorism against Israel, and at worst, and as I read it, endorses terrorism against Israel. (He endorses the "Second Intifada," accuses Israel of having a "colonial apartheid regime" and states that until Israel capitulates to all of the Palestinians' demands, including an unlimited "right of return" which will inherently destroy Israel, there will be "no peace for Israel"; all talk of peace until then is just "hype.")

If the ACLU is going to employ individuals who apologize for/support terrorism to work on 9-11 related issues it will, and it should, lose credibility on those issues.


Scalia's explanation of his reasons for not recusing himself is available here; thanks to Howard Bashman for the pointer. Note that, among other things, Scalia also relates in some detail the relevant facts of the hunting trip (see pp. 1-3, 10, and 13-14) -- the statement is quite a bit different than what I've heard at various times in casual conversation with friends.

     I'll also be happy to post a link to the Sierra Club's motion asking Justice Scalia to recuse himself, if anyone passes it along to me (at volokh at I'm not knowledgeable enough on the details of the litigation, or on recusal law, to express an expert opinion on the subject, but I thought the arguments of the main antagonists were worth passing along.

UPDATE: Thanks to Howard Bashman and several other correspondents for e-mailing me the address of the Sierra Club motion.


Close call: Clayton Cramer reports on an asteroid that is about to miss the Earth -- but just barely, by less than 4 earth diameters. Scary, for reasons he explains.


"[I]s it going to be a slippery slope from polygamy to gay marriage?" Cathy Young at Hit & Run writes:
At the United Nations, the Vatican has joined forces with a bloc of more than 50 Islamic states to block a proposal to extend spousal benefits to the partners of gay U.N. employees from countries where such benefits are legal (e.g., Belgium and the Netherlands). According to The Washington Post, Vatican envoy Joseph Klee says that recognition of same-sex unions is contrary to the Roman Catholic Church's concept of marriage and the family.

Why, next thing you know, the U.N. will be wanting to recognize polygamous marriages. Oh, wait ... it already does. . . .
Click here for more.


Apparently Phony "Hate Crime" at Claremont McKenna: My Con Law II student Trent England writes:
You might find interesting the scandal at my alma mater, Claremont McKenna College, where a professor has been [allegedly] caught trying to frame students with a fake hate crime.

CMC has a long tradition as an outstanding small liberal arts college focused on the study of government and economics. Politically, the faculty and students have been remarkably balanced, making CMC appear radically conservative relative to other institutions of higher learning. Recently, a new administration has tried to push the school to higher rankings by forcing it to become a typical left-wing college.

It seemed an outstanding stroke of luck for the administration when, in the midst of a push for greater "tolerance" and "diversity," a visiting left-wing faculty member's car was vandalized. Windows were smashed, tires slashed, and racist and anti-homosexual slogans spray painted on the professor's car.

There were sit-ins, a day of class was canceled, security was heightened, and the college president emailed all faculty, students, and alumni, to call for "regaining control of our community."

How very disappointed they were to receive the police report, which indicated that two eye witnesses identified the perpetrator as the professor herself.... It remains to be seen whether the CMC administration will still call for "the ultimate penalties under law" for what the professor herself called "a well-planned out act of terrorism."
The San-Diego Union-Tribune adds that "Police said [the professor] gave inconsistent statements during two interviews conducted jointly by the Claremont Police Department and the FBI. "

UPDATE: John Rosenberg had a lengthy post about this yesterday.


Mighty foolish: According to The Las Vegas Sun,
Two student legislators at Western Oregon University have launched a drive to ban Red Cross blood drives on campus, claiming the donor screening process discriminates against gays.

The two students are particularly upset about a donor question that reads: "Are you a male who has had sex with another male since 1977, even once?"

The federal Food and Drug Administration, which regulates the Red Cross screening process, will not accept a donation from someone who answers 'yes' to the question, in order to help eliminate potentially HIV-tainted blood.

"By continuing to allow the Red Cross on our campus, the university is telling all the gay, lesbian, bisexual and transgender students that we don't care about you," said student senator Shauna Bates, who is co-sponsoring the legislation.

If the resolution passes with a two-thirds majority vote of the senate's 14 members, no student-funded organization would be allowed to sponsor a blood drive. Current blood drives on campus, though, get their funding from the university's health services department. . . .
     The folly, I think, needs no further explanation. My only addition is one minor note: How is it that by rejecting to blood donated by males who have had sex with males the university is somehow telling anything to lesbian students?

     Thanks very much to Considerettes, which has more on the subject, for the pointer.


Math: [Warning: the following will be of interest to almost no one.]

Rich Lowry writes:
[Al] Franken says I make a "mistake" when I write of the State Children's Health Insurance Program (italics to highlight the point in contention), "The generous federal subsidy encouraged states to maximize their health benefits, essentially extending a federal entitlement to children living in families with incomes roughly 200 percent above the poverty line." But this is absolutely correct. It is Franken who is mistaken, and apparently doesn't have the slightest idea what he is writing about.

Such programs often apply to families with incomes 200 percent above the poverty line. It is a way to ensure that they reach the working poor. "200 percent of poverty" is, therefore, pretty standard public-policy argot, but Franken seems never to have heard of it, and insists that I'm wrong that SCHIP applies to families in that category. The error, however, is his: According to the American Medical Association, "SCHIP coverage is now available in 38 states and the District of Columbia for children up to age 19 whose family income is at or above 200 percent of the federal poverty level."

Franken also says the North Carolina SCHIP "was limited to children residing in families with income below 200 percent of the federal poverty level, not 200 percent above the poverty line."

If true, this would mean that the program applied only to the poorest of the poor, leaving out many people who are below the poverty line. This is silly and incorrect, which Franken would know if he had even run a Google search. Check out this site, among others, to see that North Carolina provides help to children in families earning up to 200 percent of the federal poverty-level income figure.

Let this be a warning to other comedians: Don't try to do public policy.
I'm only going on Lowry's characterization of the exchange; I haven't read either of the original pieces. But if all is as Lowry describes it, Franken was [shudder] right, and Lowry remains wrong.

"200 percent above the poverty line" does not mean the same thing as "200 percent of the poverty line." The latter means "twice the poverty line." The former means "three times the poverty line." (Compare: "100 percent of the poverty line" means the poverty line. "100 percent above the poverty line" means twice that.)

Moreover, "below 200 percent of the federal poverty level" does not mean "only to the poorest of the poor, leaving out many people who are below the poverty line" in any way that I can see. It means "Up to, but not including, the income level that is twice the federal poverty level." If the federal poverty level is $10,000, it means incomes of up to $19,999.99 .

The AMA quote Lowry offers doesn't make sense as it, and is likely a mistake. (It doesn't bear out his own description of the program either-- it makes it sound as though the program deliberately excludes the poor.) But the link he offers leads to the statement:
Title XXI of the Social Security Act, which established SCHIP, specifies that children living in families with incomes at or below 200 percent of the federal poverty level are eligible for coverage under the program.
In other words, incomes up to (and including) twice the poverty line. That means Franken's statement was off by a cent-- the statute encompasses families with incomes below or at twice the poverty line, not just below it. (Using the imaginary numbers above: Up to $20,000, not up to $19,999.99.) But Lowry's initial description is off by a full poverty-level-increment, i.e. $30,000 instead of $20,000.

In the rest of the (generally unedifying) Franken-Lowry exchange, Lowry clearly has the better of the argument. He comes across like a grown-up whose biggest mistake lay in trying to reason with a clown. (A clown who's sometimes very funny, but a clown nonetheless.) Here, however, it seems to me that Lowry was the less careful of the two-- that he was wrong the first time, and remains wrong in his attempt to have the last word now.

UPDATE: Lowry fesses up.
I did indeed misread Franken in the way described below--and did it in a very snotty way. I duly stand corrected. While we're involved in counting issues, please count me as redfaced!


More errors in the formerly State Department-distributed essay on the Second Amendment: Monday I posted a list of seven errors in a State Department-provided Web page on the Second Amendment. (Here's the cached page text; the current version, which just says that the essay is under review; and the PDF text, which still includes the essay, thanks to Bob Lunn for the pointer.)

     It turns out that there are still more errors:
  1. "In many states regulations continued prohibiting . . . Jews . . . from owning guns." I looked and asked, and couldn't find any evidence at all of any such regulations -- it's hard to prove a negative, and I might be mistaken, but this looks like an error to me. (Please do correct me if I'm wrong.)

  2. "Does the phrase 'the people' in the Second Amendment have the same meaning as it does elsewhere, for example, in the First Amendment's 'right of the people to peaceably assemble'? If it does, the argument goes, then 'the people' have a right to own a gun as much as they have the Fourth Amendment right to be secure in their homes and persons. The answer to this argument is that the courts have consistently said that the Second Amendment is different, and that the phrase has a different meaning." Well, lower courts have taken this view as to the Second Amendment; but wouldn't it have been relevant -- especially given the "consistently said" claim -- to quote some of this text from the Supreme Court case U.S. v. Verdugo-Urquidez (1990), which actually does equate "the people" of the Second Amendment with the same term in the First and the Fourth?
    Contrary to the suggestion of amici curiae that the Framers used this phrase ["the people," in the Fourth Amendment,] "simply to avoid [an] awkward rhetorical redundancy," "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
    Many thanks to Xrlq, who caught this and blogged it.

  3. "This passage [from Blackstone's Commentaries], however, points to historical facts often overlooked in the debate, namely, that the ownership of guns was strictly regulated in England. Only the nobility and the gentry could own arms . . . ." As best I can tell, this is not so: Englishmen were indeed allowed to own guns in the decades preceding Blackstone's Commentaries and the Revolution. See Joyce Lee Malcolm, To Keep and Bear Arms 128-34 (1994); see also this article by Malcolm (text accompanying notes 141-65); King v. Gardner, 87 Eng. Rep. 1240 (1739); Wingfield v. Straford and Osman, Sayer, Reports of Cases Adjudged in the Court of King’s Bench 15 (1752) (the cases are cited by Malcolm, but I’ve personally checked them myself). There were laws restricting the use and keeping of guns for illegally poaching game, but ownership of guns for other purposes was quite legal. (Thanks to Johan Bakker for the tip.)
Again, I recognize that I may be making some errors here myself, and I will obviously post whatever corrections are needed, if any are.

     Incidentally, a reader asked why the State Department is producing this material. According to this page, works such as this are intended to acquaint foreign audiences with American law and culture:
The documents located here are electronic versions of publications originally produced in print by the U.S. Department of State. Print copies may be requested from the Public Affairs Section of any U.S. Embassy or Consulate . . . . According to the Smith-Mundt Act, products developed by the Bureau of International Information Programs are intended for foreign audiences; print copies may not be distributed within the United States.


The mind boggles. I was planning to title this post something like "What part of Lawrence don't you understand?", but the last two paragraphs of this AP story suggest that nine-month-old 6-3 Supreme Court decisions aren't going to get internalized anytime soon.
DAYTON, Tenn. — Rhea County commissioners unanimously voted to ask state lawmakers to introduce legislation amending Tennessee's criminal code so the county can charge homosexuals with crimes against nature.

"We need to keep them out of here," said Commissioner J.C. Fugate, who introduced the motion.

County Attorney Gary Fritts also was asked by Fugate to find the best way to enact a local law banning homosexuals from living in Rhea County.

The Rhea County action came after the Senate Judiciary Committee (search) voted 7-1 Tuesday for a bill that would prohibit legal recognition of civil unions and domestic partnerships among homosexuals in Tennessee. Gay marriages already are prohibited in the state.

The state senator who represents Rhea County, Tommy Kilby, D-Wartburg, said Wednesday he hadn't seen the resolution and couldn't comment on it until he did.

"Yesterday in Judiciary Committee, they passed out a bill basically saying we will not recognize same-sex partnerships or civil unions from other states or foreign countries. I voted for that, and that's my position on that issue," Kilby said.

State Rep. Jim Vincent couldn't be reached for comment Wednesday.

Rhea County, about 30 miles north of Chattanooga, is among the most conservative in Tennessee. It holds an annual festival commemorating the 1925 trial that convicted John T. Scopes on charges of teaching evolution, a verdict thrown out by the Tennessee Supreme Court on a technicality. The trial later became the subject of the play and movie, "Inherit the Wind."

In 2002, a federal judge ruled unconstitutional the Rhea County school board's Bible Education Ministry, a class taught in the public schools by students from a Christian college.
UPDATE: Jonah Goldberg writes:
If you read Andrew Sullivan today, he makes it sounds as if he thinks this measure is completely illegitimate even though it seems its actual intent is to ban gay marriages in their county.
The state Senate Judiciary Committee is moving against gay civil unions and domestic partnerships. The county is up to something else entirely: it wants to criminalize sodomy and to prohibit gays from living there. The state legislators prudently kept their distance from the county. What the state is trying to do, it can constitutionally do. What the county is trying to do, it can't (under Lawrence for crimes against nature, and under core 14th-amendment law and freedom of movement, for prohibiting gays from living in the county). UPDATE AGAIN: I e-mailed Goldberg, and he acknowledged the point.

UPDATE AGAIN, The next day, the news got better.
The county that was the site of the Scopes ``Monkey Trial'' over the teaching of evolution Thursday reversed its call to ban gay people.

Rhea County commissioners, meeting in Dayton, took about three minutes to retreat from a request to amend state law so the county can charge gay people with crimes against nature. The Tuesday measure passed 8-0.

County attorney Gary Fritts said the initial vote triggered a "wildfire'' of reaction.


Commonly mispronounced words in English: This is excellent, and humorous to boot. Thanks to Newmark's Door, a good economics blog, for the pointer.


Culture and Plenitude: I am very pleased that Liberty Fund will be running a symposium on my books on commerce and culture, I must leave for the plane shortly. We are staying in La Posada, a lovely resort in downtown Santa Fe. Deirdre McCloskey, Don Boudreaux, and blogger and New York Times columnist Virginia Postrel also will be in attendance, among others. I also will have a chance to meet Grant McCracken, a cultural anthropologist who writes about the "plenitude" and diversity of culture. McCracken has put some of his key writings on-line. His ouevre defies ready description, check out the table of contents for Plenitude and click on some of the links. And who else would write sequels called Transformation and the still-unfinished Commotion?

Wednesday, March 17, 2004


The Usefulness of Law School: Nate Oman writes:
Legal practioners have a vast comparative advantage over law schools in teaching practical lawyering skills. Example, I had a semester of trial advocacy and a semester of legal writing in law school, yet I learned more about brief writing in the first three weeks of my clerkship than I did in all of law school. It is simply very very difficult to explain in a classroom what makes for a good brief and what does not.

On the other hand, law schools have a huge comparative advantage over practice in teaching theory. The problem is that most law schools teach it in a really ad hoc and disorganized way. However, I think that lawyers who understand that various sorts of frameworks that can lie beneath doctrinal structures are likely to be better lawyers.

In short, I think that most clinical education is a boondogle. Students would be better served getting theory while they can, and then be prepared for a steap learning curve and some kind of de facto apprenticeship after graduation.
The powers that be at my law school, George Mason, have felt that clinical education, if not a boondoggle, is at least not the best use of our limited resources, (contrary to popular impression, George Mason has relatively meager resources, especially for an ambitious school in a major urban center), and we have therefore had very sparse clinical offerings. Our students who desire apprenticeship training can find no shortage of real life part-time work in the D.C. area. The ABA (which accredits us, and is the source of all sorts of malevolent mischief attendant to that power) however, is constantly on our back to expend more resources on clinics.

On the theory front, we have required all incoming students to take a basic economics course so that they can all have a common framework for discussion in their other classes.

On the other hand, we have disagreed in practice with Nate's perspective on the value of legal writing programs. My own one-semester program at Yale was a bad joke (question to TA: how do I draft this document? A: You're a smart Yale student. Look it up in the library, there are lots of books about legal draftingt there), and I suspect that many programs around the country are just as bad (actually probably not quite as bad), ungraded wastes of time. By contrast, Mason has a rigorous four-semester (seven graded credits) legal research and writing program, trying to impart skills that law firms don't have the time or inclination to work on. Unfortunately, many law students start law school with atrocious writing skills, and many graduate the same way. The Mason approach doesn't work miracles, but I know our students are a lot better prepared to do legal research and writing than graduates of some of our cross-river rivals, and I know it because senior attorneys at law firms and government agencies tell me so.


National Field Organizer for the ACLU Disrupts Campus Speech (UPDATE: and, DOES THE ACLU TERRORISM COORDINATOR SUPPORT TERRORISM?): No, really. The speech was by Daniel Pipes, whose account is here. Unlike Pipes, I don't see any reason to believe that the ACLU, as such, was behind the disruption, as opposed to the Field Organizer, a Mr. Bowles, acting as freelancer, as he acknowledged in response to Pipes' inquiry. But (UPDATE: in response to reader inquiries, I've ascertained that Bowles does indeed work for the ACLU, for the Washington legislative office as National Field Organizer) it's yet further evidence of the sad decline of the ACLU's interest in freedom of expression and debate that it would hire officials whose idea of how to oppose ideas they don't like is to engage in such antics. (Yes, Bowles led a silent protest, but it was a pretty clearly disruptive silent protest that took place during Pipes' lecture, distracting the audience from his talk.)

Update: Speaking of Bowles, I can't find any information about him on the ACLU's official website, but some other sites identify him as the ACLU's Terrorism and Civil Liberties coordinator (UPDATE: I'm still waiting to hear from the ACLU whether Bowles also holds this position). Do you think the ACLU could have found someone who doesn't endorse terrorism? Here's how Bowles concludes an article advocating an end to US aid to Israel: "For all the hype over peace camps and dialogue initiatives, until the structural inequalities are dealt with [i.e., until Israel capitulates completely, including allowing its own destruction by endorsing the "right of return"], there will be no justice for Palestinians and, thus, no peace for Israel." Readers can judge for themselves, but I understand Bowles to be not simply making a positive statement--that terrorism will continue until Israel capitulates--but making a normative statesment endorsing the "resistance" actions of Al Asqa, Jihad, and Hamas, that terrorism should continue until Israel capitulates.

FURTHER UPDATE: Bowles is not only a supporter of Arab terrorism, he claims that the very concept of "terrorism" is a mere racist construct.


Lies or opinions? Yesterday I argued that when a minister conducts a same-sex marriage -- even if he says "By the authority vested in me by the state of New York, I now pronounce you spouse and spouse" -- and it's clear to everyone that same-sex marriages are actually not legal recognized, then he isn't lying, but is rather expressing an opinion. How can that be?, some people asked. After all, his statement is literally false, and he knows it; he has no such authority.

     Not all literally false statements, though, are lies. One classic example is fiction: If an actor says this in a play, that's not a lie, because no-one will understand it as a factual assertion. It's literally not true, but not a lie, either.

     Likewise, some literally false statements, especially about law, are actually opinions, precisely because it's clear to everyone that they're literally false. Say that someone says today "Al Gore is the President of the United States." That's literally false, but precisely because everyone knows it's false, it's not a statement of fact any more. In context, it's obviously a statement of opinion, expressing the view that Al Gore should be seen as the rightful President of the United States.

     Likewise when a minister says "By the authority vested in me by the state of New York, I now pronounce you spouse and spouse." If people thought he did have such actual authority, but he knew he doesn't, then it would be a lie. But if everyone knows he lacks authority, the statement will obviously be understood for what it is -- an assertion that in his opinion New York law should be interpreted by courts as recognizing this marriage.


Toronto rally in support of the liberation of Iraq: MaderBlog writes:
On March 20th, Toronto "anti-war" activists are planning a protest to coincide with the one-year anniversary of the commencement of operations to liberate the people of Iraq. Sadly, groups such as this often receive media coverage far exagerating their public suppport, partly because of the passivity of supporters of liberty.

With this in mind, the Campus Coalition for Liberty is proud to host "The World STILL Says YES to Liberty" rally in support of last year's liberation of the Iraqi people and in support of coalition troops who are fighting hard to maintain this freedom in the face of insurgent attacks.

The purpose of this event is to illustrate to the public that there are people who see beyond anti-war rhetoric and support the positive results that Coalition involvement in the Middle East has yielded.

Our rally/counter-protest will be held at Nathan Phillips Square on Queen St. W. in downtown Toronto on Saturday March 20th. We ask that those interested in joining us assemble at this location between 12:00pm and 12:30pm. The "anti-war" protest is scheduled to commence at 1:00pm, so we would like to get there prior to their march. We may proceed from the Square to the US Consulate depending on our turnout and how events transpire.
Sounds like a good cause.


Congress reversing judgments of the Supreme Court: A bunch of people have e-mailed me about this bill:
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--

(1) if that judgment is handed down after the date of the enactment of this Act; and

(2) to the extent that judgment concerns the constitutionality of an Act of Congress.
I'm pretty sure that this is unconstitutional, under current legal doctrine. Of course, if Congress enacts this and then stares down the Supreme Court when the Court strikes it down -- for instance, if a majority of the public will be on its side -- perhaps Congress will win, and current doctrine will thus be changed. I doubt, though, that this will ever be enacted, or that the people will side with Congress rather than the Court here (setting aside whether they should).

     But I want to ask a different question: Let's say that this does indeed get enacted and validated -- for instance, assume for the sake of argument that it's implemented as a constitutional amendment. How does Congress expect even obedient judges to abide by its "revers[als]"?

     Assume that the Court strikes down an abortion ban, based on some legal argument and legal precedents that the Justices would find persuasive (e.g., the right to privacy, and Casey). Congress reverses the judgment. The judgment will thus no longer be effective; the parties to the case would be free of it. But then someone else files a similar though not identical challenge to the same law.

     Presumably the Justices would still find persuasive the same argument and precedents they found persuasive in the first case. True, the first decision was reversed -- but the arguments underlying it and the precedents supporting it still remain. The right of privacy, as defined by Casey, still leads the Court to think that the abortion ban is inconsistent with that precedent. Why should the Court do anything but strike the law down, at least so long as there's any conceivable distinction between this case and the preceding one (for instance, this challenge is an as-applied challenge applied to different facts, or this challenge is brought by a litigant who has a subtly different interest, and so on)? After all, the Congressional veto didn't purport to wipe off the books the preexisting precedents; it only reversed one particular Supreme Court judgment. So the Congressional veto might not be terribly effective -- again, even if the Justices really do want to obey the veto process.

     Ah, you might say, the Court should defer to the Congressional judgment as a precedent itself, albeit one set by Congress and not the Court, and say "We won't strike the law down, because of this new precedent set by Congress." But, at least these days, courts don't just view the result of a case as a precedent; they apply the reasoning of the case.

     The Congressional reversal includes no reasoning; it's doubtless based on legislators' reasoning, but the reasoning doesn't appear in the Congressional action (or at least nothing in this proposed statute suggests that it would). Did the Congress reverse the decision because it thought all abortion bans were permissible? Just this particular abortion ban? Just this particular abortion ban as applied to this particular litigant? The Court would have no clear way of telling this, except through guesswork. The Justices really couldn't apply the Congress's decision as a precedent even if they wanted to. (There is one potential analogy here: When the Court had a practice of summarily affirming lower court decisions without opinions, the theory was that lower courts at least should abide by that result in logically indistinguishable cases, but weren't bound by it otherwise; but that also proved not to be very helpful to courts, and the Supreme Court itself felt much less bound by its past summary affirmances than it was by its past reasoned opinions.)

     Now this isn't an insuperable problem. Perhaps this statute could be modified to also have Congress give its justifications for the reversal, though you might often have a hard time getting a majority of the reversal's supporters endorsing a single justification (except when it's so vague as to be not very helpful). Or perhaps a Congressional veto of a Court decision striking down a statute might automatically mean the statute is per se validated against all future challenges, though that would pose its own problems. But the current proposal strikes me as procedurally troublesome as well as politically unlikely to be enacted.

UPDATE: Slate's Dahlia Lithwick also cricitizes the bill, though on other grounds.


Crime Severity and Constitutional Line-Drawing: I'm very pleased to report that Crime Severity and Constitutional Line-Drawing will be published in November/December 2004, in the Virginia Law Review. Interestingly, the law review is a temporary home to Crooked Timber's Micah Schwartzman and to Unlearned Hand. It's also a journal in which I've never published, but long wanted to.


"The Passion" Not Leading to Increased Anti-Semitism: This article is headlined "'The Passion' May be Reducing Anti-Semitism." That seems like too broad a conclusion to draw from the data presented, but that data, showing that the film isn't leading Americans to blame today's Jews for the death of Jesus is interesting, though to me, at least, expected. I'd be more interested to see the effect of "The Passion" on anti-Semitism in countries where the charge of Deicide against Jews has had more currency. (Via Clayton Cramer)


Now that Calpundit's gone pro... (See here, and Eugene's post here)

...I think every blogger whose work I read every day is either a professor, a current student, or pro- or semi-pro in one way or another. (I'm counting professional writers like Virginia Postrel as 'pros,' as well as people who blog for a magazine like Matthew Yglesias, Kevin, and Julian Sanchez.) Hmm. Maybe not; I'm not sure whether Belle Waring falls into any of those categories. But, gradually, the non-university-affiliated bloggers I read are becoming magazine-affiliated bloggers.


Unintentional self-parody of government overreaching: Hit & Run and NoodleFood point this out. I quote from the Sunday Herald (U.K.):
WHAT do you give someone who's been proved innocent after spending the best part of their life behind bars, wrongfully convicted of a crime they didn't commit?

An apology, maybe? Counselling? Champagne? Compensation? Well, if you’re David Blunkett, the Labour Home Secretary, the choice is simple: you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty's Pleasure in British prisons.

On Tuesday, Blunkett will fight in the Royal Courts of Justice in London for the right to charge victims of miscarriages of justice more than Ł3000 for every year they spent in jail while wrongly convicted. The logic is that the innocent man shouldn't have been in prison eating free porridge and sleeping for nothing under regulation grey blankets.

Blunkett's fight has been described as "outrageous", "morally repugnant" and the "sickest of sick jokes", but his spokesmen in the Home Office say it's a completely "reasonable course of action" as the innocent men and women would have spent the money anyway on food and lodgings if they weren’t in prison. The government deems the claw-back 'Saved Living Expenses'. . . .
Please tell me it's some weird March 14 Fool's joke.

UPDATE: Another English newspaper article on this, courtesy of reader Robert Fairbairn.


Dissents: A while back I criticized the changes in the personnel of the bioethics commission. Over at TCS, Paul Seaton registers his disagreement. Elsewhere, Justin Katz tries to set me straight (so to speak) about the conflict of interest that should prevent newly-married lesbian journalists from covering the gay marriage story (I think he thinks I'm being disingenuous when I say I don't get it. No, I really don't get it.)


Spooner Award Finalists: Laissez Faire Books has announced the four Spooner Award finalists for the best book on liberty published in 2003. The finalists are:

James Bovard, Terrorism and Tyranny;
John Lott, Bias Against Guns;
Charles Murray, Human Accomplishment; and
my own, You Can't Say That!

According to LFB's website, "these four finalists have been submitted to a jury, which consists of members of the Center for Independent Thought (LFB's parent organization) board of directors, as well as other prominent libertarians and scholars, for the final award selection. The winner will be announced on March 31st."


Blogger gets cool job! Congratulations to CalPundit for his new gig, just announced by The Washington Monthly:
Dear friend of The Washington Monthly,

For 35 years, The Washington Monthly has delivered deeply reported stories from the nation's capital that anticipate and explain the big issues facing the country before the rest of the media gets around to them. Now, the Monthly is turning its editorial eye to the other end of the news cycle. Today, we are launching a redesigned Web site featuring real-time reporting and cutting-edge political analysis, with a special focus on the 2004 presidential campaign. Anchoring our coverage will be a new blog, Political Animal, edited by Kevin Drum.

To go to our site, please click here:
CalPundit himself has more.


Iraqi federalism: My New Republic column is online.
It's become fashionable to bash Iraq's provisional constitution in the last week, and everyone from The Washington Post's editors to TNR's own Spencer Ackerman has gotten in on the act. Critics have charged that the constitution devolves too much power to local authorities and creates a central government too weak to midwife the birth of liberal democracy. To back up this claim, they point to several specific elements of the provisional constitution that appear to privilege local government over Baghdad's authority. First, they complain that the provisional constitution leaves too much power in the hands of local militias, specifically the Kurdish peshmerga. Second, they note that two-thirds of voters in any three provinces can veto a permanent constitution, thereby ensuring that Kurds can hold the constitution hostage to their demands. Third, they argue that the right of provinces to join together into regions--enshrined in the provisional constitution--will promote ethnic factionalism. And finally, they note that the document grants provinces the right to nullify or modify laws passed by the central government.

But while they're right that the provisional constitution will shift power out of Baghdad, they're wrong to believe that this is a problem. In fact, the document, while imperfect, does a pretty good job of using tribalist means to promote liberal ends...
UPDATE: Matthew Yglesias notes that in my prewar column on Iraqi federalism I had said the following:
Federalism need not, as some suppose, mean one big province for the Kurds, one for the southern Shi'ite Arabs, and one for the mid-country Sunni Arabs. (Still less does it require, as the Kurdish draft constitution suggests, one supra-provincial government for the Kurds and one for the rest of the country--a terrible arrangement.) More numerous, smaller provinces, including an autonomous Kirkuk, might well be better for stability and for the protection of minorities: Two or more Kurdish provinces would be less likely to secede than one big one; splitting up the Shi'ite region into a number of units could prevent it from gaining disproportionate power. This is not the same as "non-ethnic" federalism, a catchword used by some of the non-Kurdish opposition. Kurds need to and deserve to have effective control over the province(s) in their part of the country in order to protect their interests against an Arab-dominated center. But not all of the provinces in a federation need to be ethnically demarcated, and ethnically demarcated areas probably shouldn't consist of one-government-per-ethnicity.
and he wonders how I sqaure that with my support for the TAL, which allows any three or more provinces to join together into regional governments., and which recognizes one such extant region, the Kurdish Regional Government.

While I'd rather that the TAL had spelled out more explicitly the relationships between the regions and the component provinces, it looks to me as if the provinces remain the fundamental units-- certainly outside Kurdistan. I hope the permanent constitution makes clear that regions aren't forever, that provinces can withdraw from one region and join another or none (including the Kurdish provinces; I think the KRG is entrenched only during the transition). In the meantime, we have a KRG that doesn't dissolve the component provinces, and no regions entrenched in the rest of the country-- much less regions entrenched on ethnic or confessional bases. The hybrid model of the TAL seems like not a bad arrangement to me, and much better than a constitutional entrenchment of three massive regional governments with no internal provinces-- the worry I was describing a year ago.

Notes on sources and further reading:
The essential work on constitutional design in ethnically divided states remains Donald Horowitz, Ethnic Groups in Conflict, which can be usefully read alongside his later A Democratic South Africa?: Constitutional Engineering in a Divided Society .

The fuller version of my argument for ethnic federalism as a strategy to counterbalance the dangerous centralizing tendencies of ethnic majorities or staatvolk is found in two essays: "National Minorities Without Nationalism" in Alain Dieckhoff, ed., The Politics of Belonging: Nationalism, Liberalism, and Pluralism; and "Language Rights, Literacy, and the Modern State," in Will Kymlicka and Alan Patten, eds., Language Rights and Political Theory. The argument draws heavily on ideas from my book The Multiculturalism of Fear and from Rogers Brubaker's Nationalism Reframed : Nationhood and the National Question in the New Europe.


Dane-Geld: I thought I'd pass along this Kipling poem I've always liked. It actually isn't one of his best from the standpoint of craft -- his historical poems generally aren't, I think -- but it's still pretty good:
It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: --
"We invaded you last night -- we are quite prepared to fight,
Unless you pay us cash to go away."

And that is called asking for Dane-geld,
And the people who ask it explain
That you've only to pay 'em the Dane-geld
And then you'll get rid of the Dane!

It is always a temptation for a rich and lazy nation,
To puff and look important and to say: --
"Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away."

And that is called paying the Dane-geld;
But we've proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: --

"We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!"
UPDATE: Erik Moll, it turns out, posted the same poem as well.

Tuesday, March 16, 2004


Explicit Kerry: Reader Bill Rudersdorf points to the Oxford English Dictionary, which lists the following definition as the first one for "explicit":
†1. Of the brow: Free from folds or wrinkles; smooth. . . . 1697 Evelyn Numism. ix. 296 The chearful Forehead is Explicit and smooth.


Arresting clergy for performing same-sex marriages: The Poughkeepsie Journal reports:
[T]wo ministers were charged Monday with 13 counts of marrying gay couples in New Paltz 10 days ago.

But experts said Ulster County District Attorney Donald Williams' reasoning in bringing the charges against two Unitarian Universalist ministers for performing 13 such ceremonies on March 6 carefully treads the line separating church and state.

Williams said in a written statement that the charges arise solely because the ministers -- the Rev. Kay Greenleaf of Poughkeepsie and the Rev. Dawn Sangrey of Bedford Hills, Westchester County -- performed the ceremonies under authority vested in them by the state, rather than performing religious ceremonies. Solemnizing marriage ceremonies between unlicensed couples, regardless of sexual orientation is in direct violation of state law, he said.

Instead of government encroaching on religious life, it appears the ministers have jumped into the public policy debate with their actions, said Vincent Bonventre, a professor at Albany Law School.

''They're not only acting as ministers, they're acting as state-authorized officials,'' Bonventre said. ''If clergy want to perform religious marriages, they're perfectly free to do that. In terms of saying, 'We're doing this as state officials and performing a state marriage,' they really are now entering into the realm of government.'' . . .
     I don't agree with this analysis; I think the arrests are quite unsound. Clergy are not in fact state officials. They are indeed delegated a certain degree of government power (potentially itself troublesome, though certainly historically well-sanctioned). But here the government's point is that this power doesn't include the power to engage in same-sex marriage. The ministers are therefore not exercising government power. Nor are they likely to dupe anyone (either the parties to the marriage, or bystanders) into thinking that the marriage is valid -- there's no danger that people will wrongly think the ministers have indeed exercised government power. Everyone knows that the ceremony is purely a combination of religious ceremony and political protest, and not the actual creation of a governmentally recognized marriage.

     Rather, the ministers are doing two things: (1) speaking certain words, and (2) performing a religious ceremony while doing so. The only thing that makes a minister's conducting a same-sex marriage into purportedly illegal "solemnization" is that it involves words being said by a minister.

     It seems to me that this can't constitutionally be a basis for prosecution, at least in the absence of some fraud or complicity in fraud on the minister's part (which would make the speech into constitutionally unprotected speech). And, I stress again, there is no fraud here: Any "by the power vested me in the State of New York" line would clearly be understood as an expression of the minister's opinion about what the New York Constitution, properly understood, ought to mean, not as an attempt to fool anyone into believing something that is factually untrue.

     Finally, note that this sort of punishment of clergy for their marriage practices, if accepted, could go both ways. As I mentioned in a post this March 1:
Texas Family Code, Chapter 2 ("The Marriage Relationship"), Subchapter C ("Ceremony and Return of License") provides, in relevant part:
[sec.] 2.202. Persons Authorized to Conduct Ceremony

(a) The following persons are authorized to conduct a marriage ceremony:
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and
(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, or judge or magistrate of a federal court of this state. . . .

[sec.] 2.205. Discrimination in Conducting Marriage Prohibited

(a) A person authorized to conduct a marriage ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.

(b) On a finding by the State Commission on Judicial Conduct that a person has intentionally violated Subsection (a), the commission may recommend to the supreme court that the person be removed from office.
     Read literally, this would mean that even members of the clergy (who are authorized by this subchapter to conduct marriage ceremonies, see sec. 2.202(a)) may not discriminate based on race, religion, or national origin. Priests and rabbis would have to conduct interfaith marriages, even if they oppose them. Since Jewish ethnicity is generally seen as a "national origin" (and in some old statutes, a "race"), a rabbi who refuses to marry two people because one of them isn't ethnically Jewish would likewise be acting illegally. (As I understand it, many rabbis will marry even Jewish atheists to other Jews, but not non-Jewish atheists; they would thus be discriminating based on Jewish ethnicity/national origin/race, not based on religion as such.)

     I strongly suspect that sec. 2.205(a) was only intended to cover judges (see sec. 2.202(a)(4)) who are authorized to perform marriages, and sec. 2.205(b) supports that interpretation. Because of this, and because of a reluctance to interfere with religious activities by religious clergy -- an interference that would likely be an unconstitutional entanglement with religion or possibly an unconstitutional coercion of a religious act, and thus an Establishment Clause violation -- I doubt that Texas courts would interpret sec. 2.205(a) literally. Still, it's too bad that the statute is drafted so sloppily.
UPDATE: Some readers suggest that the clergy may be being prosecuted for signing their names to some government document attesting to the marriage. This might indeed be more punishable as an offense, partly because it's more likely to be seen as a false statement of fact -- a clerk might indeed not realize on a quick glance that this is a same-sex marriage, and be confused into thinking that the marriage was valid. But that's not what I understood "solemnizing" to mean under New York law; as I understand it, solemnizing means performing the marriage, not signing a document.

     If, however, it does turn out that the clergy are being prosecuted solely for signing some government-issued marriage license (presumably one issued during the brief period that a New York official was indeed issuing same-sex licenses), then I'll be much less concerned about the prosecutions.


In case you needed a reminder as to why you should be reading Mark Kleiman's blog: This wise and judicious post should do.
Predictability is good in a watch, bad in a blogger. If you already know what I think about an issue before reading what I have to say, why bother reading it? And why should I bother writing it? (That's part of the reason I link to only a small proportion of the Kevin Drum or Brad DeLong items I find convincing and informative: "Kleiman agrees with Drum" isn't really man-bites-dog news, is it?)

We should all be largely predictable (to those who have bothered to understand the texture of our thinking beyond crude categories such as "liberal" or "hawk") in what we have to say on the issues. And to some extent ideology determines what sort of behavior a person thinks is scandalous. I, for example, am unshocked by leaks of classified information, because I think they mostly serve the public interest, but think that much of what counts as routine political fundraising ought to be prosecuted as bribery and extortion. So I will be more prone, given an agreed set of facts, to see money-in-politics scandals as real, and less prone to see leaks scandals as real, than other people.

But on the facts themselves -- whether there existed a blue semen-stained dress, whether Valerie Plame was an undercover officer of the CIA before senior people in the White House blew her cover, whether the story about John Kerry's affair with an intern had any factual support and what operatives were involved in spreading that report, whether Halliburton's directors have been vindicated in their judgment that the huge going-away present they voted Richard Cheney as he assumed the Vice Presidency would be a profitable investment for Halliburton's shareholders -- there's no good (normatively compelling) reason why my judgments ought to match my preferences. ..

So it seems to me that, where there is a legitimate rather than a manufactured controversy, an ideal blogger would depart from the factual claim or interpretation favorable to his side about half the time. Surely, as his "batting average" for toeing the party line approaches .900 he and his readers ought to start to worry.
To which I'd add twothings. One is that bloggers who are also academics, and who are therefore supposed to be institutionally insulated from the need to uphold any party line, are particularly tightly bound by these strictures. An academic who becomes a party hack is an embarrassment-- and that's true whether he or she is hacking on a blog or in his or her books.

The second is the traditional disclaimer: bloggers aren't under an obligation to blog about everything, or about any thing in particular. Silence about the scandals that afflict one's own preferred politicos isn't forbidden by the principles Mark lays out above. But it shouldn't be silence purely motivated by the desire to avoid embarrassing one's own 'side.'


State Department reviewing its Second Amendment Web page: Yesterday I posted a list of errors in a State Department-provided Web page on the Second Amendment. Today, an acquaintance tells me that the State Department Web page has been replaced with the text "(The accompanying essay is under review.)"

     I don't know if they did this in response to my criticism, or to criticism by others. I certainly know that I didn't contact the State Department directly on this. Still, someone must have heard something from someone . . . .

UPDATE: For those who are interested, I've put up a google cache version of the original page here.


Background music: Will Baude plays wordless classical and jazz music during his Drezner exam and says:

Some of my music-loving friends are baffled by this ability to not hear what's on; they love music so they can't just ignore it and let it be helpful background noise. [This isn't to say that I don't love music, but I certainly have less of an ear for it than a lot of folks do.] I noticed this morning, though, that this inability to not-hear what's playing isn't entirely limited to music-lovers but also extends to some of us folks with tin ears.

And he quotes Nabokov on background music.

Just for the record: I'm a classical music lover, and I play "serious" music as background music all the time. In fact, right now -- as I'm blogging and doing some economics work -- I'm listening to the Tallis Scholars' Best of the Renaissance 2-CD set, and over the last several months I've been going through my sizeable music collection largely by listening to it as background music. (I usually do hear what's going on, but I can do "real stuff" over a wide range of music, provided it's not one of my favorites, it doesn't have easily distinguishable words that one would want to pay attention to, and so on.)

Does this make me a Bad Person?


The most influential bloggers: In addition to the bloggers Tyler lists below, the list also has John Grisham at #103, Nathaniel Hawthorne at #104, Jane Austen at #105, our own Jacob Levy at #130, Tyler on this site at #151, and myself at #200.


Emory Speech Tonight: I'll be speaking tonight at 7:00 pm at Emory University, White Hall, Room 111 on "Suppressing Campus Speech: The Use of Hostile Education Environment Rules to Stifle Unpopular Opinions," sponsored by the Georgia Association of Scholars through the generosity of the McClatchey Foundation. Free and open to the public.


Exterminationist Anti-Zionism: From the Montreal Gazette: "Anti-Zionism is no longer an exotic collection of radical chic slogans that somehow survived the debacle of late 1960s counter-culture. It has become an exterminationist, pseudo-redemptive ideology in the Middle East which has been re-exported to Europe with devastating effect." Read the whole thing.

Monday, March 15, 2004


Done: So my draft of Crime Severity and Constitutional Line-Drawing is now done, and sent out to the law reviews. Glad to have that out of my hair; on to the other projects. Note, though, that there are still many months before publication -- if you have any comments on the piece (it's a manageable 20 pages), please e-mail them to me.


Much Ado about Nothing: Instapundit doesn't believe the Boston Globe reporter, who, according to Drudge, now says that Kerry claimed that "more leaders," not "foreign leaders," supported him. Whatever. In context, the "more leaders" clearly referred to foreign leaders:
KERRY: "I've been hearing it, I'll tell ya. The news, the coverage in other countries, the news in other places. I've met more leaders who can't go out and say it all publicly, but boy they look at you and say, you gotta win this, you gotta beat this guy, we need a new policy, things like that. So there is enormous energy out there. Tell them, whereever they can find an American abroad, they can contribute," a reference to donations, prompting laughter from the crowd.
Even if the Globe reporter's correction is on the money, it's no wonder Kerry never denied the foreign leaders quote--it's exactly what he meant.


More on Arafat's Complicity in Terror: According to Ha'aretz, Arafat's cabinet wants to act against breakaway factions of the Fatah movement that are engaging in freelance terrorism in combination with Hamas. Arafat refuses to countenance such action. If Debka is correct, this is because Arafat favors this terrorism. It's been clear for years that Arafat is the main obstacle to peace between Israel and the Palestinians; he personally scuttled any hope of a peace deal in 2000 at Camp David (it's been reported that his top aides and foreign Arab leaders urged him to accept Barak's offer (for conflicting reports on this, see here (Arab leaders urge Arafat not to concede on Jerusalem) and here (Prince Bandar of Saudi Arabia urges Arafat to accept deal), or at least its general contours), and instead launched the present terrorist war of attrition against Israel. Why do the U.S. and Europe continue to serve as his guardians?


Who are the most influential bloggers? Here is the link. Eugene is number six, check also for yours truly at #32. What is the measure?: "This list is generated by counting unique references to articles and posts authored in the last 60 days."


Passion of Christ in the Arab world: The film is opening in Syria and Lebanon on March 17. In Lebanon the initial run of three prints has been extended to twelve, following an unprecedented show of interest. Some observers are predicting that attendance will break all previous records in the country. Some closed-down moviehouses are looking to reopen to show the picture.

In the United Arab Emirates, the government is changing the law to allow a depiction of a prophet (Jesus, a prophet in Islam, though not the son of God) on the screen.

There is strong interest in Bahrain, Kuwait, and Egypt. Bahrain and Egypt have given assurances that the film will be shown uncut. The government of Iran has shown interest as well. The single Palestinian theater in Ramallah has requested a print for showing.

Elsewhere in the Islamic world, it may be banned in Malaysia and face censorship problems in Indonesia.

From the March 15-21 issue of Variety. You can add your own commentary. I wish I knew more about motives and expectations, but I don't.


To listen to Kerry's "that's not your business" line, hear this excerpt, from about 1:45 into the audio file to about 2:00 into it (thanks to reader Henry Hanks for the pointer). "You ask me if I've met with any leaders. Yes, I --[audience noise] -- I have had conversations with leaders." "Yes, recently." [Question: "How recently?"] "That's not your business, that's mine."



More on American Anti-Semitism: Responding to my post this morning Jews are the canary in the coal mine of civilization about Jeff Jacoby's column The cancer of anti-Semitism in Europe, a colleague writes:

I commend you for your post . . . regarding rising anti-Semitism in Europe, a fact that too many want to sweep under the rug. Unfortunately, as reported early last year in the San Francisco Chronicle, this rising tide of anti-Semitism is hardly limited to the Continent. Among other disturbing trends, nearly one in four Americans between the ages of 18 and 34 believe that Jewish control of the media distorts the news, a rate that is higher than the 16 percent of baby boomers who held that view. The survey also found that 34 percent of Americans agree that "Jews have too much influence on Wall Street," that 37 percent believe that the Jews were responsible for killing Jesus Christ, and that nearly a third of all Americans fear that a Jewish president may have divided loyalties when dealing with the state of Israel. While we are experiencing nothing like the rise of anti-Semitism in Europe, I, for one, find these results to be disturbing and troubling nonetheless.


Interests: The San Francisco Chronicle has decided that two women who got married can no longer cover "the same-sex-marriage story." I saw this via Tim Graham at the Corner, who headlines the post "lesbian media ethics and rolls his eyes about 'liberal hand-wringing' but doesn't indicate whether he thinks there's a genuine conflict of interest here or not.

I don't. I get the Chronicle's intuition, of course: the reporters now have a personal stake in whether the SF marriages are eventually upheld as legal. But one doesn't prohibit all married reporters from reporting on every legal fight over the meaning, benefits, and incidents of marriage. Married reporters cover the debate over the marriage penalty, arguments about divorce law, and so on. Having a stake in the legal consequences of one's marriage hasn't ever been a disqualification from reporting on marriage. Moreover, the reporters also would have had a stake in the outcome of the story had they not gotten married but simply intended to once the legal situation was resolved.

Reporters with children aren't disqualified from reporting on whether Congress will increase the dependent child exemption. People with incomes aren't disqualified from reporting on changes in the income tax code. Homeowners aren't disqualified from reporting on real estate markets.

If the reporters were parties to any of the lawsuits surrounding same-sex marriage, then I suppose exclusion would have to follow. But if they're just in the class of persons who will be affected by the outcome of the lawsuits, I can't make out what the rule would be that could lead to disqualification. Disputes about basic legal rules and widespread social institutions affect too many people for them to be the basis of conflict-of-interest disqualifications.

Since Stanley Kurtz is always telling us that everyone's marriage will be affected by the onset of gay marriage, I look forward to his public statement that either these reporters should not be disqualified or everyone should be.


Cool optical illusion: "Motion Induced Blindness." (To confirm that the yellow dots are really there all the time, just cover two of the yellow dots and the flashing green dot with your hand, and look only at the remaining yellow dot -- it'll stay there indefinitely.) Thanks to Paul Hsieh of GeekPress, who has some more on this on his blog.


More on the Sandra Tsing Loh / public radio dirty word incident: Cathy Seipp puts it well:
On Friday Ruth Seymour asked Sandra Tsing Loh to return to KCRW -- in her old plum drivetime slot too, not the early Sunday morning graveyard she'd been banished to these past few months -- but was turned down. This came as no surprise to me.

Suggestion to anyone in Ruth Seymour's position: When you do something stupid like ax a popular commentator for one small mistake, in a hamhanded move that looks like an hysterical overreaction to the FCC crackdown, it might be a good idea to refrain from badmouthing that commentator to the press and implying she's got psychological problems. It also might be smart to send over a large basket of flowers -- or at the very least, an apology -- when the ensuing furor makes you later decide to offer said commentator her spot back.

And here's another heads-up: When your canned commentator is thinking about your offer over the weekend, maybe also refrain from passing on a line from Hemingway for her to ponder: "Life breaks everyone, but some are strong in the broken places." Again: Flowers and apologies, always a good idea. Words of wisdom about how to learn from one's mistakes: Not always a good idea.

Just my two cents.
Read Cathy's post for more.


"These hands are registered as deadly weapons . . . in Guam!" Jon Roland has uncovered that the "Karate experts must register their hands and feet as deadly weapons" line -- which I had assumed was generally a joke, but if taken seriously has been debunked as an urban legend -- is actually true in at least one place: Guam. Here's 10 Guam Code Ann. sec. 62100:
Any person who is an expert in the art of karate or judo, or any similar physical ar[t] in which the hands and feet are used as deadly weapons, is required to register with the Department of Revenue and Taxation.
Experts are defined by sec. 62104:
A karate or judo expert required to register by the provisions of this Chapter shall be a person trained in the arts of karate, judo or other hand-to-hand fighting technique, whereby the hands, feet or other parts of the body are used as weapons, who shall have completed at least one level of training therein and shall have been issued a belt or other symbol showing proficiency in such art.
Oh, and remember, Grasshopper: According to sec. 62106, "Any registered karate or judo expert who thereafter is charged with having used his art in a physical assault on some other person, shall upon conviction thereof, be deemed guilty of aggravated assault."


Disturbing Quote from European Commission Chief: From AFP: "The head of the EU executive arm, European Commission chief Romano Prodi, agreed, in an interview published by Italy's La Stampa newspaper. 'It is clear that using force is not the answer to resolving the conflict with terrorists,' Prodi said."

I haven't seen the original interview in La Stampa, nor could I understand it if I did. But the quote sounds pretty bad. What does Prodi want to do with Al Qaeda? Invite them over for tea and crumpets? Capitulate? I think Neville Chamberlain analogies tend to be promiscuously ovevrused, but Europeans should have learned the lesson that when faced with ideological fanatics bent on world domination, "using force" is the only answer. If any Italian speakers out there have access to the original interview and can provide some context, please let me know.

UPDATE: Apparently, the correct translation of the quote should have been "only using force."


Is Kerry's "none of your business" none of our business? The AP story reports that Kerry did indeed say that the identity of the foreign leaders who allegedly support him is "none of our business":
The town meeting was contentious at times, with 52-year-old Cedric Brown repeatedly pressing the candidate to name the foreign leaders whom Kerry has said are backing his campaign.

"I'm not going to betray a private conversation with anybody," Kerry said. As the crowd of several hundred people began to mutter and boo, Kerry said, "That's none of your business."
Now I'd think that when a Presidential candidate not only refuses to give details about one of his campaign claims, but alleges that these details are "none of our business," that would be news. The New York Times story on the event, however, does not mention this, though it certainly covers the question:
A Republican business owner here in this November battleground state and Secretary of State Colin L. Powell had the same questions Sunday for Senator John Kerry: Which foreign leaders told you they support your campaign, and when did you meet with them?

The questions, in a volatile exchange at a forum here and in an interview on Fox News Sunday, stemmed from a comment that Mr. Kerry, the presumptive Democratic presidential nominee, made last Monday at a Florida fund-raiser. It was the second time in recent days that stray comments by Mr. Kerry diverted attention from his themes of creating jobs and providing health insurance.

"I just want an honest answer," Cedric Brown, 52, who owns a small sign company, told Mr. Kerry.

"Were they people like Blair or were they people like the president of North Korea?" he asked, referring to the British prime minister, Tony Blair. "Why not tell us who it was? Senator, you're making yourself sound like a liar." . . .

Mr. Brown said he came to the forum to confront Mr. Kerry, in part because of lingering bitterness from the Vietnam era, when as a West Point cadet he was spat on, he said, by antiwar protesters.

As many in the crowd shouted at Mr. Brown to "shut up," Mr. Kerry, a veteran of both the Vietnam War and the protests against it, calmly promised to answer all queries, no matter the tone. Then he turned the tables.

"Are you a Democrat or a Republican -- what are you?" he asked. "You answer the question."

After Mr. Brown said he voted for Mr. Bush in 2000, Mr. Kerry added: "See? Democracy works both ways."
Likewise, the Washington Post article on the incident doesn't quote the "none of your business" line. (It does, though, suggest that Brown himself might have been rude in his remarks, something that I surely wouldn't endorse: "He was repeatedly called 'a liar' during the public forum by a heckler, Cedric Brown, who interrupted Kerry's comments on health care, education and the economy to raise questions about the assertion of foreign endorsements.)

     Is there some disagreement about whether Kerry actually said the "none of your business" line (in which case the AP had better apologize to him)? Or, if Kerry did say it, do some news outlets just think that it's not newsworthy when a candidate thinks that it's none of the voters' business to press him for details about his claims?

     Thanks to reader Ted Dinkel for the Washington Post tip.

UPDATE: A reader e-mails me that "Hannity just played Kerry saying 'That's not your business, that's mine.'"


State Department-distributed publication opposes individual rights view of the Second Amendment: Check out this chapter (UPDATE: The page has been at least temporarily removed, but I've put up a google cache version of the original page here) of a publication distributed by the State Department, one of the just five that are most prominently presented on the Publications page on the Department's site. There's much that I disagree with in the emphasis that the chapter places on various items, and in the omission of various items that would provide some pretty material counterarguments. But here are a few items that strike me as just plain wrong:
  1. "In many states regulations continued [following the Revolution] prohibiting . . . propertyless whites from owning guns." I have seen this claim in several places, all of them in the work of Michael Bellesiles. None of those places gave any citations for statutes that actually banned propertyless whites from owning guns. I tried hard to find any evidence of such statutes -- none, to my knowledge, exists. To my knowledge, there were no such "regulations," in any states, much less many states. (Incidentally, it may well be that the author reasonably relied on Bellesiles' work before it was debunked, as did I; but since the publication is on the Web, one would think that it would be updated to correct the errors that reliance on Bellesiles' work has yielded.)

  2. "Even at the time of the amendment's adoption, state laws limited gun ownership to only certain 'people,' namely those between 18 and 45 able to serve in the military." I have never seen any evidence of such a thing. I'm unaware of any state laws that banned people over 45 from owning guns, or that banned women (who weren't able to serve in the military) from owning guns, or that banned the non-able-bodied from owning guns.

  3. "One scholarly study holds that less than 14 percent of the adult white male population, those otherwise eligible to own guns, actually possessed firearms in 1790." That much is accurate -- but that one scholarly study, unless I'm woefully mistaken, is Michael Bellesiles' now-debunked work. I know of no credible source for such a statistic.

  4. "In 1960, a law professor, Stuart Hays, first suggested that private ownership of guns was a privilege protected by the Second Amendment, and that prior court decisions tying it only to the militia had been mistaken." Actually, the notion that the private ownership of guns was protected by the Second Amendment was widely recognized by a vast range of sources throughout the 1800s. See David B. Kopel, The Second Amendment in the Nineteenth Century.

  5. "In United States v. Cruikshank (1876), the Court laid down two principles: first, the Second Amendment poses no obstacle to the regulation of firearms; and, second, it applies only to federal power, not to the states. In other words, whatever limits the Second Amendment may pose on gun regulation, these do not apply to the states, which would seem to have unlimited power to regulate firearms." Cruikshank does say that the Second Amendment applies only to the federal government, but it nowhere says that the Second Amendment poses no obstacle to the regulation of firearms.

  6. "Self-defense: Historically, so the argument goes, Americans have defended themselves, and, on the frontier, guns were essential to warding off attacks by Indians, rustlers, and other predators, both human and animal. In modern society, people ought to be able to protect themselves against robbery, rape, assault, and burglary. Crime is as much a fact of modern urban life as were the dangers confronting the generations that tamed the frontier. The right to self-defense is part of the natural right of life, liberty, and happiness announced in the Declaration of Independence. Gun ownership is the means by which one can protect that natural right.

         "Here the issue is not really the Second Amendment, since English and American law have long recognized that every individual has the right to protect himself or herself against bodily harm or theft of property. If one uses a gun to shoot an attacker, the killing will be excused not as a constitutional right, but as a matter of criminal law. The Second Amendment was never intended to augment or diminish this traditional right, and advocates of gun control have never argued that they want to deny individuals the ability to protect themselves against criminals."

         Well, first, if one uses a gun to shoot an attacker, and guns are banned, the killing might be excused -- but the person who is defending himself may still be prosecuted for the illegal gun ownership (which has indeed happened). Saying that "the killing will be excused . . . as a matter of criminal law" might be technically accurate, but strikes me as quite misleading.

         More broadly, the argument here is just a non sequitur: If guns are banned and law-abiding people aren't able to have guns, their problem won't be that they'll be prosecuted for shooting their attackers -- it will be that they will lack the tools to shoot their attackers. So all the argument about lawful self-defense, and the attached quote from the Model Penal Code, is quite beside the point.

  7. "A real hunter, they argue, uses a rifle or a shotgun, not a semi-automatic machine gun." Of course, semi-automatic is the antonym of "machine gun." By definition, no semi-automatic is a machine gun, and vice versa. There are tens of millions of perfectly legal semi-automatic guns in America (many of them rifles), none of which are machine guns, which are already largely banned, except for lawful grandfathered weapons (of which there are probably about 100,000 in civilian hands in the country). So this wrongly suggests to the reader that the question is whether we should ban machine guns (it's not, since they're already largely banned), and that allowing ownership of semi-automatics means allowing ownership of machine guns.
     There are quite a few other problems in this piece, I think, some of which are quite a bit deeper than these. For instance, even when the chapter correctly identifies colonial and early state restrictions on gun ownership, that hardly supports the proposition that the right was not understood as an individual right -- any more than many colonies' suppression of speech by slaves, speech by religious dissenters, libel, and so on shows that the freedom of speech was not understood as an individual right.

     Also, there are quite a few statements that strike me as rather misleading or incomplete, even if not entirely inaccurate. For instance, if one is to assert things like "The contemporary debate is exactly over that question: Do Americans have a constitutional right to keep and bear arms outside the context of a militia which no longer exists?," it might be worth acknowledging that under the currently effective Militia Act, 10 U.S.C. sec. 311 (enacted in 1956), the militia actually does exist, and with much the same membership that it has since the enactment of the Second Amendment: "The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard." (Given the Supreme Court's mid-1970s sex equality decisions, the militia almost certainly consists of women age 17 to 45 as well.) I take it that the author might have been making a more general point, which is that the militia no longer exists as an effective, trained-during-peacetime fighting force, though it's not clear that it was ever effective and substantially trained during peacetime. Still, literally the sentence seems to suggest a broader and more objective lack of existence, which doesn't seem to me accurate.

     In any case, though, I thought that in this post I'd focus on the items that are most clearly factual errors -- and it seems to me that there are quite a few here, more than the State Department would want in the publications that it distributes.


Minorities-Only Programs and the NSF: From this week's Chronicle of Higher Education:
Lawrence Rudolph, general counsel at the National Science Foundation, says it has been several years since his agency had programs solely for minority students. A 1980 federal law directs the NSF to operate programs that increase minority representation in the sciences, but "no matter what statute is on the books, it still must be implemented in a constitutionally permissible manner."
This will come as a surprise to loyal Volokh Conspiracy readers, who last week found out that the NSF was funding Law and Social Science fellowships that are explicitly limited to non-whites. You can read the flyer for yourself here.


Aftereffects of the Spanish bombings: I'm more than a little disturbed by the widespread blogging to the effect that the Spanish election results represent a great victory of al-Qaeda, that they show that European countries can successfully be blackmailed by terrorism, etc. It's particularly grating to see such commentary from Americans who, collectively, had had much less experience with terrorism on their home soil than had Spaniards before 2001.

If the Socialists were not appeasers before M-11-- if a victory on their part wouldn't have been a victory for terrorism-- then the intervening act of terrorism doesn't change that. Part of what it is to maintain a free society in wartime is to retain the ability to switch back and forth between the credible patriotic governing parties. "Don't switch horses in midstream," Lincoln's re-election campaign slogan, can't have more than prudential weight.. While I might think that Britons were wrong on the merits to throw Winston Churchill out of office while World War II was still being fought, their doing so didn't constitute any kind of victory for the Axis. The U.S. Presidency changed party hands five times during the Cold War, with none of those representing a victory for the Soviets.

"But wait," you say. "The British and Cold War cases are cases in which the two parties didn't much differ on the conduct of the wars in question. The Socialists ran against the war in Iraq!"

Well, yes. But the war in Iraq isn't just synonymous with the war on terrorism. I supported the former, and supported it for reasons closely tied up with the latter; but they're not just the same thing. And, in any event, Spain didn't contribute combat forces to Iraq, and the new government won't get much of a chance to cast Security Council votes on whether to begin the war. The effective difference between the two governments will be small. Spain provided some important diplomatic support for the Iraq war, but its importance was overstated by its temporary presence on the Security Council. (Remember the dramatic US-UK-Spain summit in the Azores just before the war began-- the one to which Australia and Poland weren't invited despite the fact that they had troops on the line and Spain didn't? All about UN politics.) And it's entirely possible to be vigorous in the prosecution of the war against al-Qaeda while opposing the war in, and withdrawing peacekeeping troops from, Iraq.

The U.S. has withdrawn almost all of its troops from Saudi Arabia. It was able to do this because it won the Iraq war; and getting the troops out was the right thing to do. Leaving troops there to prop up the House of Saud, leaving them there to live under Saudi restrictions, and leaving them there as a constant irritant that provided new al-Qaeda recruits were all counterproductive in the war on terrorism. That means it was our judgment that our interests would be better-served by leaving, once Sadam Hussein was out of power. I think that judgment was right; indeed, the opportunity to leave Saudi Arabia was a very important ancilliary benefit to getting Saddam Hussein out of power. But al-Qaeda wanted us out, too; indeed, after the Soviets left Afghanistan but before Osama bin Laden started talking about restoring the Caliphate, his primary interest seems ot have been in getting the infidel troops off Arabian soil.

Was it 'appeasement' for us to leave? No. It wasn't appeasement even though al-Qaeda wanting us out was relevant to the calculation of our interests. Neither is it appeasement for Spain to decide to withdraw peacekeeping troops from Iraq simply because al-Qaeda wanted all western troops out of Iraq as well. It's a legitimate choice for Spain to make about where to concentrate its efforts. And if it was a legitimate non-appeasing choice before last Thursday, it remains one after.

None of this is to deny that there are policies that would count as appeasement, and political parties in the west whose victories in the wake of a terrorist attack would seem like victories for the attackers. But that would be so primarily because the parties are so far outside the reasonable range of responses to the war on terrorism that their victories would have weakened the western alliance even in the absence of such a terrorist attack. The (relatively moderate) Spanish Socialists just aren't such a party, and withdrawing peacekeeping troops from Iraq just isn't such an out-of-bounds policy. A party that proposed to withdraw from Andalusia and hand it over to bin Laden for the restoration of the Caliphate would be something else entirely; that's nothing at all like what's going on in the real world.


Rockin' Book Tour Continues: The Restoring the Lost Constitution Rockin' Book Tour continues this week in Boston & New Orleans:

Tuesday, March 16th:
Barnes & Noble @ BU (7:00pm)

New Orleans
Wednesday, March 17th:
Tulane College Senate Annual Lecture (4:00pm)

Next week: University of Nebraska, University of Michigan, Notre Dame, IU Bloomington and St. Louis University.
Full tour schedule is here.


De Novo: Four of the former En Banc bloggers (Chris Geidner, Jeremy Blachman, Nick Morgan, and PG) have now started De Novo, a very promising-looking legal blog. This morning's material is an "online symposium" -- four essays (by Howard Bashman, Doug Berman, Larry Solum, and me) on legal education. Check it out.


Calling people traitors: As readers of this blog know, I've been quite critical of people calling others "traitors" simply because they disagree with them about the war or about foreign policy. There should be plenty of room in civil debate for good-faith disagreement about what's good for the country. Moreover, decent Americans can still sometimes consider the legitimate interests beyond the American national interest -- for instance, they might oppose an attack on some country because of a concern about the country's innocent citizens, whether or not the attack is in the interests of America's citizens. It's neither fair nor productive to reduce legitimate policy disagreements to accusations of lack of patriotism, or, worse still, treason?

     But if this is true, then what's with all this that we've been hearing about "Benedict Arnold CEOs"? There are lots of hard and interesting questions about how American businessmen should deal with international competition. Some think that outsourcing is on balance bad for America, others think it's good. Some think that businessmen should focus first and foremost on the interests of America generally, others that businessmen should primarily serve the interests of their shareholders (within, of course, the boundaries of the law) -- or that outsourcing helps both shareholders and, ultimately, America generally, since without it we'd lose our competitive edge and thus have to lay off even more people. Reasonable minds can differ on this. But there's no justification for waging this battle through slurs and insults, and allusions (even if clearly hyperbolic) to a man whose name has become a snonym for "traitor."

     But if I'm mistaken, and "Benedict Arnold" is permissible political hyperbole to be used against people whose economic policies you think undermine the American national interest, then why isn't "traitor" permissible political hyperbole to be used against people whose foreign policy you think undermines the American national interest?


Scarborough Country: New on the You Can't Say That! homepage: A link to a RealVideo feed of me discussing the book on MSNBC's Scarborough Country.


Guest Commentary on Crawford v. Washington by Prof. Richard Friedman: I asked Prof. Richard Friedman of the University of Michigan Law School to provide VC readers with a commentary on last week's Supreme Court Confrontation Clause decision in Crawford v. Washington, a decision that has not received sufficient attention in the blogosphere (but see here and here). Rich filed an amicus on behalf of eight other law profs and himself in support of Crawford, and was second chair at the argument. For several years he advocated a theoretical change in Confrontation Clause doctrine much like the one adopted in Crawford. Here's the commentary:

In Crawford v. Washington, No. 02-9410, decided last Monday, the Supreme Court dramatically changed its conception of the Confrontation Clause of the Sixth Amendment to the Constitution. The effects on criminal prosecutions will likely be very significant.

The Confrontation Clause protects the right of a criminal defendant to “be confronted with the witnesses against him.” Before Crawford, the Court applied the Clause broadly but loosely. That is, anybody who made an out-of-court statement that the prosecution offered into evidence as proof of what it said was deemed a witness – but if a court concluded that the statement was sufficiently reliable then usually it could be admitted even though the defendant had not had a chance to confront and cross-examine the maker of the statement. Justice Scalia’s opinion for seven justices in Crawford narrows the focus of the Confrontation Clause to statements that are considered “testimonial,” but as to these the demand of the Clause is unequivocal: The statement cannot be admitted against an accused, no matter how reliable a court might consider it to be, unless the defendant has had an opportunity to examine the maker of the statement.

The Crawford Court did not provide a firm definition of the meaning of testimonial. For purposes of this case, that was not necessary. The statement involved in Crawford was one made by a witness in the police station house the night of the incident at issue by an observer of the incident (the wife of the defendant) who was unavailable to be a witness at trial. Under any useful definition, she was a witness, for someone speaking to the authorities after the apparent commission of a crime is self-consciously creating evidence that may, if the adjudicative system allows it, be used as evidence at trial. Preventing the creation of evidence in this way was at the core of concern that underlay the Confrontation Clause.

Prosecutors afraid that witnesses who have made favorable statements may not be available to testify at trial should no longer prepare to argue that the statements are reliable. Instead, they should arrange an early opportunity for the defendant to cross-examine. But Crawford raises many questions. For example, what are the consequences with respect to the admissibility of statements made in 911 calls, some of which seem more designed to create evidence than to secure immediate assistance? Should routine laboratory reports made in contemplation of prosecution be inadmissible if the technician does not testify? Shall statements to private persons, made in circumstances suggesting likely transmittal to the authorities, be considered testimonial? In what circumstances should a court find that an accused has forfeited the confrontation right, as by killing or intimidating the witness? The last two questions are particularly significant with respect to children, as are others: Shall some child declarants be considered at too early a stage of development, either cognitively or morally, to be considered witnesses? Crawford may also spur movements for some changes in law. For example – an unfortunate possibility – some jurisdictions will be tempted to exempt more prior statements of a witness from the rule of hearsay than they do now; if the prosecutor brings the witness to trial, where she can be cross-examined, the prior statement could then be admitted under California v. Green, 399 U.S. 149 (1970), if the witness testifies inconsistently with it. A better change would probably be to alter criminal procedure rules to facilitate depositions even before formal charges have been brought.

No doubt it will take years for the dust to settle. But Crawford should be regarded as a highly beneficial development, a decision that interprets the Confrontation Clause faithfully and that thus restores it to its proper place as a central protection of our system of criminal justice.


Ashdod Terror Attack: A very interesting Debka analysis of yesterday's terror attack in Ashdod, Israel. One never knows exactly how much credence to give Debka, but this one seems plausible. Main points: (1) the terrorists managed to slip out of Gaza while Israeli forces were distracted by a diversion--two armed Hamas men, reported killed Saturday; (2) the target was chemical storage facilities in Ashdod, a "mega terror" attack. Palestinians in Gaza, celebrating the attack, carried premade placards showing storage tanks in flames; (3) the operation was a joint Hamas-Fatah operation, blessed by Yassir Arafat, who is desperately trying to prevent his rival, Mohammad Dahlan, from taking control of Gaza. This last point jibes with reports today of new calls by Israeli cabinet officials to expel Arafat. If Arafat is really behind this terrorism though, he should not be expelled, but either taken into Israeli custody where he can be monitored, or simply bombed into oblivion.

UPDATE: In other Mideast news, the UN has convened an emergency session to condemn Syria for its massacre over the weekend of several dozen Kurds. Yeah, right.


"Jews are the canary in the coal mine of civilization": I recommend an excellent column in Sunday's Boston Globe by Jeff Jacoby: The cancer of anti-Semitism in Europe. After providing a chilling list of recent attacks on Jews in Europe, here is how it ends:

Whether this massacre [in Spain], like those in Istanbul and Bali and at the Pentagon and the World Trade Center, was the work of radical Islamists, the world will know soon enough. What the world should already know but so often forgets is that Jews are the canary in the coal mine of civilization. Anti-Semitism is like cancer; unchecked, it can metastasize and sicken the entire body. When civilized nations fail to rise up against the Jew-haters in their midst, it is often just a matter of time before the Jew-haters in their midst rise up against them.
I experienced some pretty ugly anti-Semitism myself growing up, one of 4 Jews in a high school class of 400, but "normal" anti-Semitism is not to be confused with this. I have seen nothing like what has been happening to Jews in Europe and in Israel in my lifetime. I have always believed that a holocaust could happen again--not that it was inevitable, but that it was clearly not impossible. But I also maintained that, if it did it happen again, it would look different than the last one. Each one looks different. And denial is always the order of the day for Jew and non-Jew alike.

Sunday, March 14, 2004


Lowell Ponte Show: I'm about to go on the Lowell Ponte radio show (888-822-TALK) talking about free speech law and more (or so goes the plan), probably for about an hour (6 to 7 pm Pacific).


One lesson of Spain? Say that Aznar's party lost in the Spanish election partly because some Spanish voters (it need not have been a majority, or even close to it) thought the Madrid bombings were al Qaeda's retaliation for the Spanish involvement in Iraq, and wanted to punish Aznar for it. Of course, this might not be the correct interpretation of the election results, in which case the rest of this post is beside the point; but at least right now it seems to be a popular interpretation, and a plausible one.

     Those voters' position would be understandable -- perhaps not terribly sound in the long term, but understandable: The deaths were caused by Aznar's policies, since if he had not supported the Americans (over the opposition of most Spaniards, as I understand), the bombings probably wouldn't have happened; therefore, let's punish Aznar, and send politicians a message to prevent this from happening again.

     But if that's so, then doesn't it show that we can't allow our foreign policy to be vetoed by other nations? After all, if we agree that we may not do what we think is right and necessary for our national security if any one of England, France, Russia, or China says "veto," then our enemies can paralyze us simply by influencing one foreign country. The influence might be exerted by bribes (more here), or by threat of terrorist violence. But one way or another, an enemy that couldn't break down our resolve could still stop us from doing what needs to be done by breaking down the resolve of one of the veto-owning countries. (The same applies if we just generally agree not to go ahead without the agreement of "our European allies" generally -- if the threat of terrorist retaliation cows several of those allies, that could be enough to stymie our plans.)

     As I mentioned before, there are three possible reasons for a position that we shouldn't do certain things without multilateral support. One is purely pragmatic: if we don't have much foreign support, the theory goes, our task will be too hard, either because we won't have enough material help, or because the lack of foreign support will undermine our credibility with (say) the Iraqis. A second relates to legitimacy: certain kinds of actions, the theory goes, are only morally or legally legitimate if we have support from certain foreign bodies, or perhaps from a certain range of foreign countries. A third relates to foreign support being probative of the need for action: if we don't fully trust our government's judgment, then we might consider other countries' judgment as evidence of whether the action is practically and morally justified.

     But the second and third reasons, it seems to me, are pretty weak if we think foreign countries are likely to be influenced by the risk of terrorist retaliation. The foreign countries' decisions may simply be probative of their own desire not to be attacked, not of what's the morally right thing to do in the abstract, or what's the practically right thing to do for us (or even what's in the aggregate interests of humanity generally). And I don't see why we should ascribe to a view of legitimacy that makes our actions illegitimate whenever the terrorists are able to force other countries to oppose us.


"None of [our] business"? A Pennsylvania TV station reports (thanks to InstaPundit for the pointer):
The town meeting [in Bethlehem, Pa.] was contentious at times, with 52-year-old Cedric Brown repeatedly pressing the candidate to name the foreign leaders whom Kerry has said are backing his campaign.

"I'm not going to betray a private conversation with anybody," Kerry said. As the crowd of several hundred people began to mutter and boo, Kerry said, "That's none of your business." . . .
None of our business? Kerry tells us that foreign leaders are backing his campaign -- and then when pressed for specifics, says it's none of our business?


California town concerned about dihydrogen monoxide: This AP story reports:
[Aliso Viejo c]ity officials were so concerned about the potentially dangerous properties of dihydrogen monoxide that they considered banning foam cups after they learned the chemical was used in their production. . . .

"It's embarrassing," said City Manager David J. Norman. "We had a paralegal who did bad research."

The paralegal apparently fell victim to one of the many official looking Web sites that have been put up by pranksters to describe dihydrogen monoxide as "an odorless, tasteless chemical" that can be deadly if accidentally inhaled.

As a result, the City Council of this Orange County suburb had been scheduled to vote next week on a proposed law that would have banned the use of foam containers at city-sponsored events. Among the reasons given for the ban were that they were made with a substance that could "threaten human health and safety." . . .
Wonderful! The L.A. Times reports the same, so I think the I risk that the story is itself a hoax that duped the journalists is low -- but even if that did happen, that just makes it wonderful in a different way; the Times also reports that "Seven years ago, four teenagers in Pittsburgh were reprimanded by police for passing out fliers that caused a neighborhood-wide panic about dihydrogen monoxide." Thanks to InstaPundit for the pointer.


Sunday Song Lyric: The Janet Jackson breast flap continues to reverberate. This past week, Congress voted to increase the fines for indecency on the airwaves, radio conglomerates and the FCC are cracking down on their “shock jocks,” and MTV is removing racy videos from daytime, forcing kids to stay up late if they want to see a scantily clad Britney Spears.

Interestingly enough, one of the videos MTV has relegated to late night – Megalomaniac” by Incubus – has no sexual content whatsoever. Rather, it is a politically charged video suggesting President Bush is an oil-crazed, fascist. (The video is available in multiple formats here.) Instead of crotch shots or cleavage, the video features winged Hitlers, cartoon combat, and anti-war protests, so it’s hard to see how the move can be justified by MTV’s newfound fear of the FCC. Nonetheless, I think this is evidence that the FCC's crackdown on indecency may have a chilling effect on political speech.

This is just a long-winded explanation for why Incubus’ Megalomaniac is this week’s Sunday song lyric. I don’t find the lyrics all that deep or provocative, and I disagree with the video’s paranoid political message, but the song's not bad and I think the choice is justified by recent events, so here goes.
I hear you on the radio
You permeate my screen
It's unkind, but
If I met you in a scissor fight,
I'd cut off both your wings on principle alone, principle alone.

Hey, megalomaniac
You're no Jesus
Yeah, you're no f**king Elvis
Wash your hands clean of yourself baby and
Step down, step down, step down.

If I were your appendages
I'd hold open your eyes
So you could see
That all of us are heaven sent
And there was never meant to be only one, to be only one.

Hey, megalomaniac
You're no Jesus
Yeah, you're no f**king Elvis
Wash your hands clean of yourself baby and
Step down, step down, step down.

You're no Jesus
You're no Elvis
You're no answer.
Step down, step down, step down, step down, hey.
P.S. Of course, as a private broadcaster MTV has every right to decide what videos it will or won't air, but that does not mean I have to like it.


Arguing what you don't believe: My friend Nate Oman thinks it's off-putting/shallow/manipulative/condescending/dishonest when non-believers use religious arguments to try and persuade believers, like when non-Christians argue that the Passion misses the "true meaning" of Christianity or when Westerners argue that Islam is consistent with democracy.

Alas, what of our entire education as lawyers, which is all about making arguments that the other guy will agree with? Of course, the lawyerly education focuses on secular reasons, but I didn't catch anything in Nate's post to distinguish religious arguments between believers and non-believers from secular arguments between, say, utilitarians and deontologists.

I agree with Micah here. Often, trying to argue with someone on his own ground doesn't work, because the non-believers (whether religious or secular) botch. They (unintentionally) misrepresent their adversary's views because they don't have a very good understanding of the true basis for those views or their context or what have you. And this goes not just for "persuasion" arguments but also for their cousins, arguments that a particular philosophy is inconsistent (which similarly claims to take a philosophy on its own terms to argue against one of its positions). I can't tell you how many times I've heard idiocy of the form "If conservatives love life so much that they're against abortion, how can they be for the death penalty?" (not directed at me) or "How could Justice Bradley (a 19th-century Supreme Court Justice with libertarian views) vote for the blacks in the Slaughterhouse Cases and yet vote against the blacks in the Civil Rights Cases?"

But, as I've argued recently in a different context, this isn't an argument against the genre; when done right, there's nothing wrong with it, and in fact there can be a lot of good. For one thing, there may be various inconsistencies in a philosophy that never come to light if you leave it to insiders, because people may accept a philosophy (and be under the impression it's internally consistent) for self-serving reasons -- so the philosophy can benefit from an outsider's perspective.

For another, there's no ethical obligation to be "honest" in argumentation in this sense. Arguments exist in the abstract; people are just argument delivery devices. If there exists an argument that shows that my philosophy is inconsistent so that I have to adjust the philosophy or change a position or even consciously choose to live with an inconsistency, I should deal with that argument, regardless of whether the guy presenting the argument is self-serving or a creep or Hitler.

Maybe someday soon, I'll post about a slightly different issue that's been on my mind recently. When you're trying to get people to support a position, you can present whatever arguments you like, because in this case you just care about the position getting a lot of support. This argument arguably doesn't apply when you're doing pure philosophical argumentation, trying to get someone to come over to your philosophy. There, one might argue, you shouldn't give reasons for your own philosophy which you yourself believe to be false. But I recently read an op-ed that I took at the time to be dishonest in this sense (I've changed my mind since about whether it's dishonest) and tentatively concluded that even this sort of dishonesty is justifiable. But, perhaps, more on that later.

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