Town T-shirts barred in town schools: AP reports:

Showing town spirit in Climax is cause for punishment in this Minnesota town.

Shirley Moberg, superintendent of Climax-Shelly schools, said T-shirts bearing the town's slogan "Climax -- More than just a feeling," are inappropriate because of the sexual innuendo.

About a dozen students wore centennial T-shirts to school this week in protest, and one girl was sent home Wednesday for refusing to turn her shirt inside out.

School officials had said nothing to students wearing the shirts until recently, when a teacher wore it to school and a person complained. The shirts are no longer allowed to be worn at school, she said.

Climax, a town of 270 near the North Dakota border, adopted the "More than a feeling" slogan in 1996 for its centennial. The slogan was used in advertising and promotions, and the T-shirts have been around for years. . . .

Thanks to reader Rich Carreiro. (If you really want to figure out the legal status of such restrictions, rather than just to laugh at the story, check Bethel School District v. Fraser; the short answer is that the school is probably entitled to restrict such innuendo, though I can't quite see why they should be concerned about very mild sexual references like this.)

Slate on the Massachusetts constitutional convention: Dana Mulhauser has a smart and readable piece on this in today's Jurisprudence -- a column that, while I often criticize, I also often very much enjoy reading.

Cathy Seipp on blogging: As usual with Cathy's work, a very readable and interesting piece, this time with thoughts on the media, children, education, and politics. He's the first paragraph:

My 14-year-old blogger daughter got Instalanched last week, after she wrote about how her English teacher had ridiculed her in front of the class for writing an un-p.c. paper. I've heard what happens when the mighty Instapundit's Glenn Reynolds links you but never seen it up close, and it really is amazing: From 100 hits a day (typical for a teenager's blog) to 100 an hour, with links to dozens of other blogs and almost 200 posted comments from Edinburgh to Auckland. . . .

Stupidity, conservativism, and math: Several readers objected to the logic of Prof. Brandon's argument, and not just to its factual underpinnings or the accuracy of its paraphase of John Stuart Mill. Even if "stupid people are generally conservative," the readers argue, this doesn't mean that conservative people are especially likely to be stupid -- and, they say, that's a pretty basic error for a philosophy professor to make.

     I think this is one criticism of Brandon that isn't quite apt. Assume stupid people are "generally" conservative (in the sense of more than 50% of the stupid people being conservative). Assume also -- an unstated premise on Brandon's part, but a plausible one -- that the public at large is not generally conservative (in the sense that fewer than 50% of the general public being conservative). Then it follows that the smart people (or at least the nonstupid ones) will indeed be disproportionately nonconservative, and the conservatives will indeed be disproportionately stupid.

     Let's start with a concrete example. Imagine a population of 1000 people. 60% of them are stupid, and among the stupid, 60% are conservative ("stupid people are generally conservative"). But among the 1000 people at large, only 40% are conservative (the unstated premise). This means that there are 360 (1000 x 60% x 60%) stupid conservatives, but only 400 (1000 x 40%) conservatives total. Thus, there are only 40 (400 - 360) smart conservatives, out of 400 (1000 - 1000 x 60%) smart people total. The smart people are 90% nonconservative, and the conservative people are 90% stupid.

     More broadly, say that:

     s = the proportion of the public that's stupid (from 0 to 1).

     f = the fraction of stupid people who are conservative (presumably over 0.5, if "stupid people are generally conservative").

     c = the proportion of the public that's conservative; I argue that Brandon's unstated premise, which is plausible as a matter of current fact, is that this is probably 0.5 or below.

     Then we know stupid conservatives are s x f (as a proportion of the population); smart conservatives are c - s x f; smart people total are 1 - s; and the fraction of conservatives that is smart is thus

          (c - s x f) / (1 - s)

     And if indeed c < f (as it is, given Brandon's stated premise and his likely unstated premise), which is to say a smaller fraction of all people are conservative than the fraction of stupid people that are conservative, then (c - s x f) / (1 - s) < (c - s x c) / (1 - s) = c, which is to say that conservatives are underrepresented among smart people compared to the population as a whole.

     This, of course, is a highly stylized model, which rests on all sorts of simplifying assumptions that might not be entirely accurate. But neither are they provably inaccurate. So if you grant Brandon the plausible assumption that the public at large is not generally conservative, accept this simplistic but not implausible model, and accept his factual premise, then his argument does make logical sense -- not as an ironclad proof, but as a plausible pragmatic explanation -- which is why I didn't fault him on that score.

     I am, of course, happy to fault him on other scores, as I've done in other posts.

Party affiliation and political knowledge: Ilya Somin, a law professor at George Mason University, writes:

Apropos the conservatism and "stupidity" issue, you may find interesting the attached data from my analysis of the 2000 National Election Study (the NES is the most comprehensive US survey of political attitudes and knowledge, which breaks down political knowledge by strength of party affiliation. Note that "Strong Republicans" have much higher political knowledge levels than any other group. The 3.3 gap on a 31 point scale between "Strong Republicans" and "Strong Democrats" may not seem like much, but it is the equivalent of that created by a difference of SEVERAL YEARS of formal education.

Now I note that political knowledge is not the same thing as intelligence (indeed, I have to caution people on this every time I present one of my papers on political ignorance), but I think lack of knowledge is often what people have in mind when they attack conservatives as "stupid."

I also note that I am not suggesting that people become Republicans BECAUSE they are more knowledgeable. The knowledge gap may simply be an artifact of the fact that highly educated, high income people, are disproportionately likely to be Republicans. Still, it is simply false to say that conservative Republicans are more likely to be politically ignorant than liberal Democrats. The opposite is in fact the case, though independents are on average far more ignorant than either group.

Another irony: the British Conservative Party that Mill was attacking in the 1860s had at least as much in common with modern liberals as with modern Conservatives. For instance, the Conservative leader Benjamin Disraeli invented the "two Nations" mantra that John Edwards has transmogrified into "Two Americas." 1860s Conservatives were also supporters of workplace regulation and protectionism, though on some other issues (e.g. - imperialism) they did differ from modern liberals.

Here's the table that Ilya attached:

Table 2.5
Political Knowledge by Strength of Party Identification
2000 National Election Study
Self-Described Party Alignment / Average Political Knowledge Score
(Average number of correct answers on 31 point scale)

"Strong Republican" / 18.7
"Independent-Republican" / 15.7
"Strong Democrat" / 15.4
"Independent-Democrat" / 14.2
"Weak Republican" / 14.1
"Weak Democrat" / 13.3
"Independent-Independent" / 9.5

I can't independently vouch for this, and of course (as Somin would doubtless agree) there are all sorts of other possible explanations here: For instance, it may be that in 2000 Strong Republicans were more politically energized than Strong Democrats because of their opposition to the incumbent President Clinton. I surely won't claim much Republican superiority based on this. But I do think that it's a helpful response to claims of conservative stupidity, claims that are often made but rarely supported.

UPDATE: See here for more data, from Northwestern lawprof Jim Lindgren via InstaPundit. Again, I stress that I am not claiming Republican superiority, for the reasons that Somin, Lindgren, and I have pointed out. But it does further highlight that "conservative are stupid" claims usually rest simply on the speaker's unstated premise that "stupid = disagrees with me on politics."

Those brilliant professors, those accurate literary references: Prof. Robert Brandon, chair of the philosophy department at Duke, is quoted as saying (thanks to InstaPundit and Andrew Sullivan for the pointer):

"We try to hire the best, smartest people available," Brandon said of his philosophy hires. "If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire.

"Mill's analysis may go some way towards explaining the power of the Republican party in our society and the relative scarcity of Republicans in academia. Players in the NBA tend to be taller than average. There is a good reason for this. Members of academia tend to be a bit smarter than average. There is a good reason for this too."

Well, here's the exact quote from Michael St. John Packe, The Life of John Stuart Mill 454 (1954), quoting Mill's speech in which he said this:

"I never meant to say that the Conservatives are generally stupid. I meant to say that stupid people are generally Conservative. I believe that is so obviously and universally admitted a principle that I hardly think any gentleman will deny it. Suppose any party, in addition to whatever share it may possess of the ability of the community, has nearly the whole of its stupidity, that party must, by the aw of the constitution, be the stupidest party; and I do not see why honourable gentlemen should see that position as at all offensive to them, for it ensures their being always an extremely powerful party . . . There is so much defense, solid force in sheer stupidity, that any body of able men with that force pressing behind them may ensure victory in many a struggle, and many a victory the Conservative party has gained through that power."

What's more, here's the original statement to which he was alluding, from his Representative Government:

The Conservatives, as being by the law of their existence the stupidest party, have much the greatest sins of this description to answer for: and it is a melancholy truth, that if any measure were proposed, on any subject, truly, largely, and far-sightedly conservative, even if Liberals were willing to vote for it, the great bulk of the Conservative party would rush blindly in and prevent it from being carried.

     Mill never said that stupid people are generally conservative -- he said that stupid people in the England of his era belonged to the Conservative Party. Mill, as a partisan, wrote a partisan rant about the Conservative Party; he said nothing about conservatives generally. It's hard to see how his comment has anything to do with conservatism in 2004. (Note that the problem can't just be explained as an error on the part of the Duke Chronicle; even if Prof. Brandon said "Conservative" and the reporter wrote it as "conservative," the problem is with Prof. Brandon's using a quote about a particular party as if it were a quote about conservatism generally. Nor is it easily dismissable as an obvious joke, especially given Prof. Brandon's talk about "Mill's analysis.")

     If some liberal professors (who are probably pretty far from 1860s Liberals) want to express their contempt for conservatives (who are probably pretty far from 1860s Conservatives), then it seems to me that they shouldn't call on John Stuart Mill to support their prejudices.

UPDATE: The original version of the post erroneously referred to the quote as coming from a letter by Mill; it was in fact a parliamentary speech. I've updated the text accordingly.

Venting: A reader writes, apropos the "How not to argue" post:

You are absolutely right; letters like that are a disaster. And I've written enough of them myself (no, not quite so lame as that). I just don't send them. Venting accomplished, nobody hurt.

I admit that I am nursing one venting letter now that I might actually send, though. When I was at UCB, Cody's Books was my default bookstore -- stocked pretty much everything I was likely to want (and a lot I wasn't, like the entire floor-length shelf-ful of pot-growing manuals, but let that pass.) I'm not over in Berkeley much since I moved to Marin, but I was over the other day to review a concert, and stopped in to Cody's to see if they had the February _First Things_. Went to the political-commentary zine shelf where they used to stock it; no sign of it. No sign of *any* conservative or libertarian zines, in fact.

I found them eventually. They were two aisles down, at ground level, right below the stoner zines like _High Times_, and next to the magazines about astrology, UFOs, and paranormal phenomena. The shelf was labeled "Alternative Viewpoints." Indeed.

I suppose someone thought that was cute. I think it's flat-out unprofessional, having been a bookstore periodicals clerk myself in the past. Anyway, I wrote a letter and am now deliberately not looking at it for a few days, so that I can reread it with a cooler head and possibly tone it down (though I think it was pretty measured already).

Good point, both as to the venting and as to the substance of the complaint.

Seventh Circuit judges' letter opposing Rule 32.1 (the rule that would require courts of appeal to allow citation of their unpublished opinions). It's signed by 9 of the 12 Seventh Circuit judges.

How not to argue: A reader cc'd me on a copy to Duke Professor Robert "Stupid People Are Generally Conservative" Brandon; here's what the letter said:

People with above average IQ's are more likely to be original thinkers, not mind numbed robots mouthing the party line so they can become tenured and then go to sleep for the next 30 years.

Your remarks are so unintentionally hilarious, they merely illustrate the decay of education from nursery school through graduate school thanks to great thinkers like yourself.

Thank G-d the younger generation is finally getting it and I have high hopes that you and your "brilliant colleagues" will be the last of your kind defiling our classrooms.

     My questions: Is the letter likely to have helped change Prof. Brandon's mind? Or is it likelier to have simply reinforced Brandon's views? Yes, I realize that the likely purpose of the letter was venting, not persuasion. But how worthwhile a purpose is such venting, especially if the likely effect of the letter is to lead Brandon to think "Yup, I was right all along"?

UPDATE: Tim Sandefur picks up on a point I missed (though, maybe, if my correspondent is lucky, Brandon missed it, too):

[T]he term "mind numbed robots" that the person uses in his letter is a line that Rush Limbaugh uses very often. It's one of those things that, when you hear it, indicates immediately that the person saying it is (like me) a Rush fan. Of course, Brandon most likely thinks that all Rush fans cannot think for themselves, but just parrot things that Rush Limbaugh says. So using a Rush-inspired catch phrase is CERTAINLY going to make Brandon think "Yup, I was right all along"!

Love and death: David Kaufman passes along this AP story:

Dressed in a demure black suit, a 35-year-old Frenchwoman has married her dead boyfriend, an exchange of vows that required authorization from President Jacques Chirac.

Under French law, Christelle Demichel became both bride and widow in the ceremony, which was performed Tuesday at Nice City Hall on the French Riviera. . . .

[The groom's] body was not present for the ceremony.

Such marriages are legal if the living spouse can prove the couple had intended to marry before the other died. The French president must also authorize it.

As Kaufman points out, "the most interesting thing about this story is that evidently French law has contemplated it. Apparently, in France, it's not that unusual to marry a dead guy." Laugh, rage, or be moved -- I leave the reaction to you.

Drake University and protester subpoenas dropped: From the New York Times (thanks to reader Matthew Elkin for the pointer):

Facing growing public pressure from civil liberties advocates, federal prosecutors on Tuesday dropped subpoenas that they issued last week ordering antiwar protesters to appear before a grand jury and ordering a university to turn over information about the protesters. . . .

On Monday, prosecutors defended their inquiry, saying it was limited to the narrow issue of whether a protester trespassed on Iowa National Guard property on Nov. 16.

A subpoena compelling Drake University to provide information about an antiwar forum on its campus on Nov. 15 was also withdrawn, as was an earlier court order that barred Drake officials from speaking publicly about the case. . . .

The school received a subpoena last week that demanded a broad range of information about the sponsor of the forum on Nov. 15, the Drake chapter of the National Lawyers Guild. The subpoena included its leadership lists, annual reports and location. That subpoena was later narrowed somewhat, university officials said on Tuesday, to include the names of people at the forum and records from campus security that might describe "the content of what was discussed at the meeting." . . .

I hope to blog a bit more about the court order that barred Drake officials from speaking about the case -- that order, I think, was indeed a First Amendment violation, though unfortunately far from an unprecedented one.

Language of exclusion in the Constitution: My former student Eric Soskin (of the Ex Parte blog) makes two points, apropos the "guy who first used the Constitution to codify bigotry" argument:

But I see a larger question here. Should President Bush (and other elected leaders) prioritize the question of how they "want to be remembered" when making policy decisions? Just four years ago, Democrats and Republicans alike criticized President Clinton for doing exactly that. It's one thing to argue against privileging today's image over future consequences (see, e.g.Medicare prescription-drug benefit); it's quite another to ignore present consequences in favor of one's future image!

Also, "for the first time"? Hardly. Does anyone remember Article I, Section 2, in the pre-14th Amendment days? Think "Three Fifths Clause." And Article II, Section 1; excluding all naturalized citizens from the presidency. Or even the 14th Amendment, Section 3[,] excluding Southerners who had previously taken an oath to the Constitution from holding office in the United States (without the leave of 2/3 of Congress). I'm sure this isn't a comprehensive list -- with our modern taste for age discrimination, for example, the minimum-age requirements probably constitute "language of intolerance and exclusion" as well.

The latter point is a detail, and doesn't really undermine the core of the Slate argument that much, in my view; still, it's an interesting set of factoids. One might also throw in another part of the Fourteenth Amendment itself, which introduced an explicit sex classification in the Constitution by making the basis of representation turn on whether a state had disenfranchised males, thus officially endorsing (though, to be fair, certainly not mandating) sex discrimination.

More on arguing about the Federal Marriage Amendment: I've added some more material to my post below, which criticizes Dahlia Lithwick's Slate question "Does President Bush really want to be remembered as the guy who first used the Constitution to codify bigotry?" Key point: Questions like this, which simply assume that one is right and ask why the other side would want to be so evil as to disagree, don't really advance the argument much -- especially when most Americans actually don't agree with the conclusion that the questioner is assuming.

An odd sort of argument: Dahlia Lithwick, in Slate argues thus:

The reality is even more compelling: A Defense of Marriage Amendment would enshrine, for the first time, language of intolerance and exclusion in a document that was intended to set forth basic rights. Does President Bush really want to be remembered as the guy who first used the Constitution to codify bigotry?

No, I don't think so; presumably Bush doesn't see opposition to gay marriage as bigotry. "Bigotry" is generally the term we use for irrational or unfounded disapproval. Bush and other anti-gay-marriage forces presumably see their opposition to gay marriage as quite well-founded and morally proper, and thus not bigotry at all.

     Say you're a libertarian arguing against an amendment that authorizes the income tax; and say that you think the income tax is theft. What kind of argument would it be to say "Does [Senator X] really want to be remembered as the guy who first used the Constitution to codify theft?" Not much of an argument, it seems to me -- the argument that the income tax is theft might be sensible, but a query about whether someone who obviously doesn't see the income tax as theft wants to be remembered as being pro-theft doesn't make much sense. Likewise, I think, with the rhetorical question being asked about President Bush.

UPDATE: Some people e-mailed me to argue that (1) whether someone is a bigot is an objective judgment, and (2) even if Bush doesn't think of himself as a bigot, he might still worry that posterity will remember him (wrongly, from his point of view) as one. But I think that's rather beside the point: Bush doesn't think of himself as a bigot; he knows that most of his countrymen agree with him, and don't think that a heterosexual-marriage-only position policy is bigoted; it's highly unlikely that he'll think he's on the wrong side of history.

     The trouble with the argument I'm quoting above is that it assumes the thing it's aiming to prove, and it thus only works for the already converted. Of course if a heterosexual-marriage-only is bigoted, Bush shouldn't support it. You don't need a slate.com column to show that. But such an argument ignores the reality that lots of our fellow Americans (those outside that very broad spectrum from Sullivan to Sunstein) disagree on that point. And it ignores the likelihood that self-righteousness -- asking "Does President Bush want to be remembered as the guy who first used the Constitution to codify bigotry?" without considering the obvious answer "Uh, he doesn't think that will happen, because he doesn't think it's bigotry or that future generations will see it as bigotry" -- isn't going to be terribly persuasive to those Americans on the other side, or to those who are in the middle.

     There are actually arguments that deal with this reality of diverse attitudes, that argue from a position that's at least facially respectful of the other side's views (and thus more likely to appeal to them), and that go beyond near tautology. Actually, Lithwick makes some of those arguments: For instance, she appeals to the rights of citizens of each state to decide what to do (see also Jacob Levy's posts above). She also points out that Dick Cheney seemingly supported such a view in 2000 ("The next step then, of course, is the question you asked of whether or not there ought to be some kind of official sanction, if you will, of the relationship or if these relationships should be treated the same way a conventional marriage is. That's a tougher problem. That's not a slam dunk. I think the fact of the matter, of course, is that matter is regulated by the states. I think different states are likely to come to different conclusions and that's appropriate. I don't think there should necessarily be a federal policy in this area.").

     But the "does he want to be remembered as a bigot?" argument strikes me as an argument that's simply premised on the assumption that one is right, and that of course everyone else should just see that, since, well, I'm right, darn it.

A wide range of viewpoints: Dahlia Lithwick, in Slate, urges Bush to support a particular approach to gay marriage (which, I assume from her article, is "letting Massachusetts set its own rules and letting the courts chew over the whole mess for a few years"):

There is a principled, moderate resolution to this issue, but he has thus far ignored it in favor of big rhetoric. Commentators from the conservative Andrew Sullivan to the liberal Cass Sunstein have espoused it. But the president has failed to hear it.

Hmm -- from the conservative supporter of gay marriage Andrew Sullivan to the liberal supporter of gay marriage Cass Sunstein? It's shocking that the President, an opponent of gay marriage, would ignore such a wide range of opinion.

     Wouldn't it have been good to make clear, for those Slate readers who don't know that Sullivan is a leading advocate of gay marriage, to make clear that both cited commentators are gay marriage supporters? And if that was made clear, wouldn't "Commentators from the conservative [supporter of gay marriage] Andrew Sullivan to the liberal [supporter of gay marriage] Cass Sunstein have espoused it" be seen for the rather unpersuasive argument that it is?

More on the language police: My friend Glen Whitman points to this post on The Language Log, which starts:

Can't anybody use a dictionary anymore? I enjoy a good curmudgeonly rant about how English is going to the dogs these days, I really do. But why can't the journalists who crank out such screeds check their lexical prejudices against a good dictionary or two?

A couple of months ago, I complained about Cullen Murphy, who "drew the line" in the Atlantic on the meaning of three words: 'Notoriety does not denote "famousness," enormity does not denote "bigness," and religiosity does not denote "religiousness."' As I pointed out, a quick peek at the OED reveals that the three senses that bother him are earlier (even original) ones, sanctioned by centuries of use, and only recently falling out of favor. I don't recommend that everyone start using those senses -- I agree with his judgments that they're no longer quite the thing -- but to see this as holding off the forces of cultural degeneration is like "holding the line" against gingham bonnets and beaver hats.

Yesterday, John Powers weighed in ("A Loss for Words", Boston Globe 2/8/2004) with another triadic tirade:

We say "transpire" when we mean "happen." We say "momentarily" when we mean "soon." We say "livid" when we mean "angry." This growing imprecision of usage may not be what fictional professor Henry Higgins declared "the cold-blooded murder of the English tongue." But it does matter if you don't know what you're saying. If you don't, how will I?

. . . .

For the rest, read the post; I haven't double-checked all its assertions myself, but they strike me as quite right. By the way, to stress again: It may be that the usages that Murphy and Powers criticize are some usage is ugly, confusing, or otherwise suboptimal. The poster's objection, which I share, is to claims that somehow the usages are objectively wrong, that some word "does not denote" something that is in fact listed as one of its dictionary meanings, or that people "don't know what [they're] saying" when what they're saying is in fact one of the dictionary meanings of the word they're using.

Prof. Bainbridge on the FMA: My colleague Steve Bainbridge writes:

. . . I would like to see Bush turn the debate fully to the "who decides" question. Instead of talking about the sanctity of marriage (which heterosexuals like Britney Spears are doing a pretty good job of destroying without help), Bush should focus the debate on judicial activism. How to do this? Revise the FMA so as to leave the definition of marriage to the state legislatures, while not requiring other states (or the federal government) to accept another state's definition. Then let the chips fall where they may.

The idea is to allow representative democracy to work out the answer on a state by state basis without courts using either equal protection or the Full Faith and Credit clause to impose a national regime before the national population (not just metropolitan elites) have reached consensus. A very narrowly tailored FMA would not require one jurisdiction to honor the definition of marriage used by another state. If Massachusetts decides to validate gay marriages and a gay couple got married in Massachusetts and then move to Alabama, Alabama would not have to treat them as being married. Arguably, Alabama already would not have to do so, because the FF&C clause has a public policy exception. It is sharply contested, however, whether the public policy exception would be applied to allow states to decline to recognize gay marriages lawful under the law of the state where the marriage occured. This has become a particularly debatable proposition after the decision last term in Lawrence. Hence, the suggestion to offer a very narrowly tailored FMA to allow each jurisdiction to decide for itself what will constitute a legal marriage under its laws, without having to defer to the definition used by the locus of the marriage ceremony. . . .

I agree entirely.

Federal subpoena: A bunch of people have forwarded to me versions of this news story:

[S]ubpoenas were served last week on four of the activists who attended a Nov. 15 forum at [Drake University], ordering them to appear before a grand jury Tuesday, the protesters said. . . .

In addition to records about who attended the forum, the subpoena orders the university to divulge all records relating to the local chapter of the National Lawyers Guild, a New York-based legal activist organization that sponsored the forum.

The group, once targeted for alleged ties to communism in the 1950s, said it will ask a federal court to quash the subpoena on Monday.

''The law is clear that the use of the grand jury to investigate protected political activities or to intimidate protesters exceeds its authority,'' [G]uild president Michael Ayers said in a statement.

Those served subpoenas include the leader of the Catholic Peace Ministry, the former coordinator of the Iowa Peace Network, a member of the Catholic Worker House, and an antiwar activist who visited Iraq in 2002.

They say the subpoenas are intended to stifle dissent.

''This is exactly what people feared would happen,'' said Brian Terrell of the peace ministry, one of those subpoenaed. "The civil liberties of everyone in this country are in danger. How we handle that here in Iowa is very important on how things are going to happen in this country from now on.''

The forum was titled ''Stop the Occupation! Bring the Iowa Guard Home!'' The next day, 12 protesters were arrested at an antiwar rally at Iowa National Guard headquarters in Johnston. Organizers say the forum included nonviolence training for people planning to demonstrate.

The targets of the subpoenas believe investigators are trying to link them to an incident that occurred during the rally. A Grinnell College librarian was charged with misdemeanor assault on a peace officer. She has pleaded innocent, saying she simply went limp and resisted arrest.

''The best approach is not to speculate and see what we learn on Tuesday'' when the four testify, said Ben Stone, executive director of the Iowa Civil Liberties Union, which is representing one of the protesters.

According to a story in the Des Moines Register, Nov. 17, 2003, the rally also apparently involved criminal trespass by about a dozen of the 70-odd people who attended; and, according to Capt. Doug Phillips of the Polk County Sheriff's Department, the woman being prosecuted for assault, Chris Gaunt, "became limp and kicked a deputy in the knee as they were putting her in the (police) wagon."

     These sorts of subpoena cases are, I think, quite hard. Subpoenas asking about what was said at political meetings do risk deterring people from participating in such meetings; and this sort of inquiry, together with the subpoena of university records related to the group (which seem unlikely to be particularly relevant, or particularly informative), seems rather disproportional to the misdemeanor offenses involved here.

     Nonetheless, meeting in order to plan an illegal activity may well be criminal conspiracy. The line between criminal conspiracy and protected advocacy is at times hard to draw (my Crime-Facilitating Speech article touches on one aspect of this difficulty), but if the speech was essentially detailed planning of what to do, coupled with mutual agreement to commit criminal acts -- e.g., "At 10 a.m., we'll all show up here; you folks go here to block this location until they arrest you; if they arrest you, become limp, and throw a kick or two; are we all agreed?" -- then there is pretty clearly a constitutionally unprotected conspiracy going on here. That the conspiracy (if there is one) was organized at a political meeting doesn't make the meeting immune from government investigation.

     The prosecutors are certainly allowed to subpoena people who witnessed the actual trespass and alleged assault. They also may subpoena people who the prosecutors think participated in the planning, both to gather evidence related to any possible criminal conspiracy, and to see if any statements at the planning meeting might be relevant to the substantive offenses at the rally: For instance, if Chris Gaunt was heard to say "If any of those cops touch me, I'll show them who's boss" at the meeting, then the government's case against her on the alleged assault would become a lot stronger. It's harder to see why the Drake records related to the NLG chapter are relevant here; it will be interesting to see what arguments the government provides in response to the motion to quash that subpoena.

     Political meetings are not safe harbors in which people can freely organize conspiracies to commit crimes, free from any risk of investigation (including coercive investigation using subpoenas). That's true if it's a KKK meeting used to organize racial terrorism, an Operation Rescue meeting used to organize trespass or vandalism at an abortion clinic, or an anti-war group's meeting used to organize criminal trespass or possible misdemeanor assault. The government doesn't have carte blanche to just demand the entire membership list of a group (see NAACP v. Alabama); but it has considerable latitude to ask people about any possibly criminal conduct that they've witnessed, and even about information that may simply be relevant to determining whether such conduct took place.

     I do think the government should try to use this power sparingly, and as I said I'm not sure that such subpoenas are the proper tools when investigating relatively low-level misconduct such as this. But on the other hand, trespass and assault against officers are crimes; and the First Amendment doesn't generally block the government from using its subpoena power to investigate such crimes, especially if there's reason to think that the
Nov. 15 meeting did involve conspiracy to commit a crime.

Beware transcripts: Here's the introduction to my brief quote on NPR's Marketplace Jan. 26, 2004:

Eugene Volokh teaches law at USUAL.

It was said quite right on the air, if I recall correctly; the error was in the transcript. Something to keep in mind when one is thinking of relying on what purports to be a verbatim transcript.

Letter responding to my op-ed on judges and Congress: Mark Allenbaugh writes this letter to the L.A. Times:

The eponymous premise of Prof. Eugene Volokh's "Congress Has Every Right to Judge the Judges," Feb. 8, 2004, at M3, is quite surprising, especially coming from a constitutional law professor. While Congress certainly does have a right "to know what judges are doing," it is not the province of Congress to interfere with how federal judges do their jobs. As Justice Marshall declared 201 years ago in Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." By reducing and in some cases eliminating judicial sentencing discretion, Congress has simultaneously allotted more sentencing power to prosecutors. It is this power grab that Judge Tevrizian, a Reagan appointee, found to be an unconstitutional violation of the separation of powers doctrine.

Actually, Judge Tevrizian did not strike down Congress's "reducing and in some cases eliminating judicial sentencing discretion." In fact, Judge Tevrizian specifically rejected these challenges, noting that the Supreme Court has held that "the scope of judicial discretion with respect to a sentence is subject to congressional control"; for instance, Congress "may limit the exercise of [sentencing] discretion through legislatively adopted guidelines," and "may establish mandatory minimum sentences" (which would include minimums beneath which there may not be any downward departures). These are all quotes from p. 9 of the opinion. The writer continues:

It therefore is disingenuous of Prof. Volokh to suggest that federal judges, in their virtually unanimous opposition to the legislation, somehow desire "to be free from criticism." Sentences, after all, have always been public affairs and subject to appellate review. Furthermore, the U.S. Sentencing Commission has collected and disseminated data to Congress on federal sentences for nearly 15 years. Judges always have been subject to public criticism (or adulation) for the sentences they impose.

Well, here's an excerpt from p. 6 of the judge's opinion:

Despite the seemingly self-evident need for judicial independence, a recent upsurge in attacks upon both the individual judge and the entire judiciary has illustrated that the general public is largely uninformed and often ungrateful of the service provided by the court. The judiciary must provide a defense against attempts to usurp judicial independence through inappropriate controls and the dissemination of information that fosters distrust, misunderstanding, and apathy towards the function of the court. . . . Both individual federal and state judges have increasingly been the targets of "vitriolic ad hominem attacks" for their individual decisions in individual cases. . . .

It sounds as if the judge is complaining about criticism ("attacks," ingratitude, "dissemination of information"), albeit criticism that he thinks is unfair.

     The opinion goes on to say that "[i]t is against this background and the principles of judicial review that the present motion must be decided" (p. 7). And several pages later, in rendering the decision, the judge indeed writes that the reporting requirement "chills and stifles judicial independence to the extent that it is constitutionally prohibited" (p. 12); presumably the chill and stifling comes from the threat of criticism, since that's the chief likely use to which Congress would put the report. "There is no legitimate purpose served by reporting individual judges'[] performance to Congress" (p. 12); I take it that this means the facilitation of Congressional criticism of judges' positions (as well as other possible uses for the information) is not a "legitimate purpose" for the report. So the striking down of the reporting provision seems to me triggered precisely by the judge's desire to be free from criticism, albeit criticism that the judge thinks is ungrateful, uninformed, distrustful, based on misunderstanding, ad hominem, or vitriolic.

     The letter writer continues:

In any event, while "Congress is supposed to legislate based on knowledge about how the current law is being applied, not based on ignorance" it hardly did that when it passed the PROTECT Act. Rather than getting any input from the federal judiciary, or holding any meaningful public debate, it simply passed knee-jerk tough-on-crime legislation. Furthermore, the premise of a portion of the PROTECT Act -- that federal judges were departing too often below the sentencing guidelines -- has since been discredited by at least two independent reports: one by the U.S. Sentencing Commission, and another by the GAO.

By usurping judicial sentencing discretion, in the words of Prof. Volokh, judges no longer will be able to "use their moral and practical judgment to select a fair sentence." The current debate between Congress and the federal Judiciary thus is not about judges' fear of being judged; rather, it is about who ought to do the judging.

Mark H. Allenbaugh is a former staff attorney with the U.S. Sentencing Commission and currently serves as the Co-Chair of the Federal Sentencing Guidelines Committee for the National Association of Criminal Defense Lawyers. He is a co-editor of "Sentencing, Sanctions and Corrections: Federal and State Law, Policy and Practice."

     A few quick thoughts:

     (1) Whether the PROTECT Act was passed with or without input from the federal judiciary, whether it was passed after meaningful debate, and whether it's knee-jerk, though-on-crime legislation are not relevant, I think, to whether it's unconstitutional.

     (2) Whether federal judges are departing "too often" is naturally a value judgment, so I'm not sure quite how firmly it can be "discredited," especially if the concern is that some judges are departing unsoundly. Presumably, though, if all judges are departing only rarely and only in proper circumstances, the very reports mandated by sec. 401(l) would just further illustrate the point.

     (3) The constitutional debate between Congress and the judges is not "about who ought to do the judging." The judges agree that Congress has the right to set guidelines, either rigid or flexible ones; there's no unconstitutional "usurp[ation] of judicial sentencing discretion" here, since setting sentences and sentencing rules is within Congress's constitutional power. Likewise, Congress agrees that of course the sentence in each particular case will be set by the judges (though constrained by the Congressional framework).

     As I mentioned above, Judge Tevrizian's decision didn't even try to reallocate "who ought to do the judging." Rather, the only provision that the decision struck down was a provision that facilitated Congressional evaluation of the job that judges are doing. I wouldn't say this has to do with judicial fear of being judged; but it sure seems like it's based on judicial dislike of being judged.

Federal Marriage Amendment: Ramesh Ponnuru defends a particular proposed Federal Marriage Amendment, which reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The amendment, he argues (responding in large part to Andrew Sullivan's criticism, will only prohibit (1) a state legislature's or court's recognizing gay marriages under the name marriage, and (2) "a court's extension of a benefit that the legislature has reserved to married couples to other groups." It will not prohibit legislatively-created civil unions through which the legislature extends various benefits to gay couples.

     I don't think that's quite right. As I've argued earlier, imagine that the New York legislature or the California voters decide to create a "civil union" statute, under which gays can enter into such a union. The statute then requires all state and local government officials to treat civil unions as tantamount to marriages, for purposes of child custody, divorce, intestate succession, wrongful death litigation, and so on.

     A gay couple enters into such a union. One partner, who works for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married couple." "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."

     [The following added after I wrote the original post:] Then the employee goes to court to demand the benefit. "Sorry," the judge says. "The Federal Amendment bars me from construing the state law to require that this benefit be conferred on you. Yes, I know that the statute says exactly that. But the FMA doesn't allow to construe the statute that way, even if that's the statute's clear meaning. You'd be entitled to get the benefit under the statute, but the FMA trumps the statute. [End addition:] So the FMA would block not just gay civil unions imposed by judges or executive branch officials, but also normal state laws adopted by legislators and voters.

     Ponnuru responds:

[Under the FMA], a legislature can decide to make a benefit that was previously an incident of marriage and extend it to others. It could, for example, say that partners to a civil union have the same benefit. When it does such a thing, the benefit ceases to be an incident of marriage. The courts and government agencies are free, under the amendment, to give effect to such a law. What the amendment does prohibit is a court's extension of a benefit that the legislature has reserved to married couples to other groups.

So a legislatively created civil union statute that (for instance) completely tracks all the benefits and burdens of marriage wouldn't have to be "construed to require that . . . the legal incidents [of marital status] . . . be conferred upon unmarried couples" -- rather, it will simply be construed to eliminate any "incidents" of marriage under state law, except for the label "marriage."

     This is a creative argument, but I don't think it's quite right. First, if this argument is accurate, then the FMA probably wouldn't even block judicially created civil unions, the very thing that Ponnuru says it would do, since Ponnuru's argument likely applies equally to judicially and legislatively created civil unions. After all, if a court says "Under our state Constitution's equal protection clause, discrimination against gay couples is not allowed; therefore, committed gay couples must get the same benefits and burdens as married straight couples," then it's likewise simply eliminating any "incidents" of marriage under state law, except for the label of "marriage." These benefits and burdens have "cease[d] to be an incident of marriage," and can thus be awarded to gay couples. (This isn't an open-and-shut argument; maybe courts can come up with some way of distinguishing judicially created civil unions and legislatively created civil unions for purposes of the second sentence of the FMA. But I think that such a distinction would be hard to support.)

     Second, "the legal incidents of marriage" is an ambiguous phrase. It could be interpreted the way that Ponnuru and the scholars he cites suggest, as "those things that state law provides only to married couples." Or it could be interpreted as "those things that law has traditionally provided only to married couples," or even "those things that married couples generally do." See, e.g., Collins v. Guggenheim, 631 N.E.2d 1016 (Mass. 1994) (saying that "We have not permitted the incidents of the marital relationship to attach to an arrangement of cohabitation without marriage," which suggests that applying some such incidents to cohabitation would be "permitt[ing] the incidents of the marital relationship to attach to [a nonmarital one]," rather than that it would somehow destroy the incidents' status as incidents of marriage); McGruder v. Frank, 825 F.Supp. 1300 (S.D.Ohio 1992) ("Unfortunately in our society domestic violence is probably the most prevalent form of interpersonal violence, including violence between persons not legally married but involved in relationships which have some of the same incidents of marriage."); Cook v. Cook, 798 S.W.2d 955 (Ky. 1990) (Lambert, J., dissenting) ("By its decision, the majority has encouraged spouses receiving maintenance to refrain from marriage, safe in the knowledge that they may establish relationships which have all of the incidents of marriage if only they maintain the fiction of separate places of dwelling."). In all these cases, the courts were treating "incidents of marriage" as something that even unmarried couples may possess -- and when that happens, the right or behavior does not "cease[] to be an incident of marriage"; it remains an incident of marriage, though one that unmarried couples possess together with married ones.

     And if courts do treat the ambiguous phrase "incidents of marriage" as referring to the benefits, burdens, and practices that have traditionally accompanied marriage, then legislative civil union statutes may well become unconstitutional or at least unenforceable: As I said before, government officials would be prohibited from construing the statute according to its literal text, as providing some of the traditional benefits of marriage to unmarried couples. And if someone goes to court to challenge the official's refusal to provide such benefits, then the court court would likewise be forbidden from construing the statute according to its literal text.

     When you're deciding whether to support a proposed amendment, I think it's important to think about these ambiguities. Even a 50% or a 25% chance that an amendment will be interpreted to yield bad results might offer enough reason to oppose it (though of course much depends on how bad you think the bad results would be, and how good the good results would be). And if the amendment is still in the drafting stages, why not modify it to avoid these ambiguities in the first place?

The Chief Justice: Is he the Chief Justice of the United States, or the Chief Justice of the Supreme Court? (The question was prompted by this How Appealing post and the BeldarBlog post to which it refers.) Readers familiar with my loosey-goosey views towards the language won't be surprised that I say "both." His generally accepted title is Chief Justice of the United States; but he's also the Chief Justice (among all the other Justices) of a body called the U.S. Supreme Court, or colloquially the Supreme Court. He is therefore the Chief Justice of the Supreme Court, just as the U.S. Court of Appeals for the Ninth Circuit is also the Ninth Circuit Court of Appeals, the Ninth Circuit, and so on.

     But readers familiar with my loosey-goosey views likewise won't be surprised that I like to support them with citations to The Authorities, for the benefit of those who are very influenced by The Authorities. (Some of those people may respond that I cite loosey-goosey Authorities, but if they reject usage, and they reject the Authorities, then what do they really have to fall back on?) So here it is: A command of the U.S. Congress (or the Congress of the United States, if you prefer), recorded in 2 U.S.C. sec. 135:

The Librarian shall make the purchases of books for the law library, under the direction of and pursuant to the catalogue furnished him by the Chief Justice of the Supreme Court.

Several other provisions do indeed refer to the Chief Justice of the United States; I'm not saying that "of the Supreme Court" is the only permissible term, or even the most common one. But the mixed usage in the U.S. Code itself supports my view that both usages are proper. So is calling him a "Judge," which is how article III, section 1 refers to all the judges of the "supreme Court" (though article I, section 3, also refers to him as the "Chief Justice.")

     Unless, of course, you're arguing before the Supreme Court, and want to persuade the Chief. When that's so, call him "the Chief Justice of the United States" -- not because it's the only right term, but because that, I am told, is the one he prefers.

UPDATE: Reader Patrick Charles notes that the original version of 2 U.S.C. sec. 135, 4 Stat. 579, uses the term "chief justice of the United States"; the U.S. Code version, though, does use "of the Supreme Court." I haven't checked it myself, but I trust Mr. Charles' testimony here (he's a law librarian). Perhaps then my 2 U.S.C. sec. 135 argument doesn't much work -- but I stick by my common usage argument.

Animals and homosexuality: A reader writes, apropos "Love That Dare Not Squeak Its Name," that animals do things that we wouldn't tolerate in humans:

They are animals and we are not. We don't need to use them as a guide for how humans should act.

     I agree with this entirely -- which is why, for instance, Jerry Falwell was wrong when he said, in 1984 (Sex and God in American Politics; What Conservatives Really Think, Policy Review [Heritage Foundation], Summer 1984, at 12), that

Homosexuality is a perverted lifestyle. It is performed only by humans. As a theologian, I would say that homosexuality, like all sin, has its roots in the fall of man in the Garden of Eden. Because we have a fallen nature, we are capable of doing anything. . . .

He was mistaken on the facts -- animals do engage in homosexual conduct -- but he was also mistaken on the moral inference to be drawn from them. That something is "natural" (in that animals do it) doesn't mean it's good for humans to do. That something is "unnatural" (in that animals don't do it) doesn't mean it's bad for humans to do. (I assume that, because he started his answer with linking perversion and things that are done only by humans, Falwell was arguing that whether or not animals do something is a good guide to whether it's perverted or normal for humans to do.) See here for my criticism of the general "homosexuality is bad because it's unnatural" argument.

     But since people have made the "animals don't do it, so it's unnatural, and so it's evil" argument -- and, to my knowledge, continue doing so -- it seems quite right to point out that the argument is wrong not just in one way, but in two. First, as the reader writes, what animals do or do not do is no guide for how humans should act. But second, as a factual matter, homosexuality isn't something done only by man, who fell in the Garden of Eden -- it's something that other animals do, too.

P.S. For what seems to be a diametrically opposite scientific error, see Interview With Rosie O'Donnell, O'Reilly Factor, Fox News, Mar. 25, 2002:

O'REILLY: I would say that the course of nature dictates, all right? This is my opinion. The course of nature dictates that it's better for a child to be in a heterosexual home, again, with good, loving, responsible parents, than a homosexual home, because nature says the best way for a child to be raised is with a mommy and a daddy. That's nature.

So by disagreeing with that, you're disagreeing with nature, are you not?

O'DONNELL: Well, I'm not really disagreeing with nature, Bill, because in every animal kingdom and every species, 10 percent of the population is homosexual.

O'REILLY: Yes, but they can't -- only humans...

O'DONNELL: It's a fact of nature.

O'REILLY: ... can adopt. . . .

I have never heard the assertion that "in . . . every species" (I'll assume that "in every animal kingdom" is O'Donnell misspeaking), "10 percent of the population is homosexual." Contrary to some now-discredited reports, that doesn't seem to be the number for humans in America (at least if one counts homosexuals the same way as one counts heterosexuals -- as people who predominantly engage in homosexuality, rather than just people who have at least once had a homosexual experience); the more accurate estimate appears to be about 1.5% of women and 3% of men, though of course one should take any such estimates with a grain of salt. I've never heard of any 10% estimate for animals, much less all animal species, and I would be utterly amazed if this was indeed so. Please correct me if I'm mistaken, but my sense is that O'Donnell is just flat wrong here.

UPDATE: Readers Tom Myers and Nels Nelson write that virtually all bonobos apparently participate in homosexual behavior at least on some occasions; Myers cites a source that reports that only about 1% of ostriches do (though of course you should take all such estimates with a grain of salt, since it's nearly impossible to measure the behavior of a representative sample of the worldwide population of a species, especially over time). Again, I've seen no evidence supporting the 10% number.

"Love That Dare Not Squeak Its Name": A New York Times piece on homosexuality among animals. The introduction reminds me of Opus's talk of "penguin lust," though I'm pretty sure that Opus himself is pretty straight, though occasionally interested in other species.

     Of course, the article also mentions the bonobos, always good for some prurient appeal ("Female bonobos have been observed to engage in homosexual activity almost hourly"!). Hey, wouldn't that be a good name for an intellectual art-rock band? "The Bonobos." Few listeners would get the allusion, but those who do would appreciate it. Thanks to How Appealing for the pointer.

UPDATE -- blog imitates art: Reader Adam Roesch reports that there is indeed a one-man musical outfit called "Bonobo". I'm sure the chicks go wild! Or is it the chimps?

FURTHER UPDATE: Anthony Argyriou points to a band called The Bonobos. They stole my idea!

Bureaucratic nonsense in Chicago: According to the Chicago Tribune (emphasis added),

Several parents and their children filed a lawsuit Thursday in federal court, saying the children's 1st Amendment rights were violated last year when they were not allowed to wear a T-shirt bearing the word "Gifties" at a Chicago public school.

The controversy began during the 8th graders' annual T-shirt design contest . . . .

About 80 students are in the class, with a third of them enrolled in the Regional Gifted Center program. Votes were cast for the best shirt design among 20 submitted, but there was a revote, the lawsuit said.

Sara Van Enck, a parent and one of the plaintiffs in the case, said the second vote was taken because the principal didn't like the shirt that Van Enck believes the students originally chose--a figure of a boy giving a "thumbs up" sign with his left hand. His right hand held a leash with a bulldog, the school's mascot, on the end of it.

A different shirt was picked after the second vote, but a number of students apparently were unhappy with the design, the lawsuit said. . . .

Students in the gifted program decided to order the shirt they preferred and added the word "Gifties" to the back of it. "Gifties" is the nickname for students in the program.

Before they wore the shirt to school for the first time, they ran into opposition from the school's principal, Chris Kotis, the lawsuit alleges. Kotis told them that no one could wear that shirt because it was not the "official" one and that there would be "serious consequences" if anyone did, the suit said.

The students came up with a petition supporting their T-shirt, the suit said. But Kotis insisted that he was concerned about their "safety" if they wore the shirt to school, the suit said.

On April 1, all 27 8th graders in the gifted program wore the shirt to school, the suit said.

Parents were called, and their class was placed in confinement that day and for other days during the rest of the school year, the lawsuit said. . . .

The lawsuit seeks to expunge from school records any discipline against the students involving the T-shirt incident. . . .

The principal's actions, if they are indeed as described here, sound like the worst sort of bureaucratic pettiness. And though I'm not sure this is the sort of stuff that deserves litigation, the First Amendment claim is a valid one here -- the First Amendment protects more than just political advocacy, and would cover T-shirts such as those here.

Judges and Congress: I have a piece in today's L.A. Times on the latest controversy; here's a slightly changed version of that piece:

Congress wants to know how federal judges are applying the law. It tells the Justice Department to provide certain reports. Unconstitutional!, federal district judge Dickran Tevrizian held earlier this month. The attempt by Congress to learn about judges' behavior, and perhaps to eventually publicize and criticize this behavior, "is a power grab by one branch of government over another branch."

There surely is a power grab going on here, but it's in the other direction. A judge is trying to stifle information to protect judges from criticism.

Some background: Federal judges sentence defendants using the Sentencing Guidelines -- a complex set of rules promulgated by the U.S. Sentencing Commission, under general guidance from Congress. Judges may "depart" from the Guidelines, either downward by giving a lower sentence or upward with a higher sentence. They are only supposed to depart, though, in exceptional cases.

Many judges don't like the Guidelines, partly because they think the Guidelines provide too little room for individualized judgment. But there's no constitutional right to individualized decisionmaking in sentencing. Congress could set up fixed rules, such as "five years for an armed robbery." These would be clear and evenhanded, but they might not be sensitive enough to the particulars of each defendant or each crime.

Congress could set up rules that leave judges great discretion, such as "one to fifty years for an armed robbery, whatever a judge decides." This would let judges take many factors into account, but it might lead to huge disparities in sentences, as some defendants draw lenient judges and others draw harsh ones; and it might also let judges consider improper factors. Or Congress could set up some intermediate rules, such as those expressed in the Guidelines.

Judge Tevrazian's decision doesn't challenge the Guidelines, or the restrictions on departures. But it does condemn a recent statutory provision (section 401(l) of the so-called "PROTECT Act") which requires the Justice Department to report to Congress about cases in which judges departed downward. The report must, among other things, give the facts of the case, name the judge, and explain the judge's reasons for the departure.

The decision begins with a long discussion of judicial independence. "Regardless of the individual approach of a judge," the judge writes, "the integrity and the fairness of the legal system will always be diminished when unwarranted interference distracts the individual judge from his or her charge to adjudicate solely based on the Rule of Law."

Then, however, we get a sense of how broadly he defines "unwarranted interference": "Despite the seemingly self-evident need for judicial independence, a recent upsurge in attacks upon both the individual judge and the entire judiciary has illustrated that the general public is largely uninformed and often ungrateful of the service provided by the court." Ungratefulness for the courts' services -- shocking!

And then the clincher: "The judiciary must provide a defense against attempts to usurp judicial independence through inappropriate controls and the dissemination of information that fosters distrust, misunderstanding, and apathy towards the function of the court." I had thought that "dissemination of information" about judges was everyone's right, including the Congress's. But apparently not.

The Judge then goes on to hold section 401(l) unconstitutional. "There is no legitimate purpose served by reporting individual judges['] performance to Congress." It's a "power grab," and "an unwarranted interference with Judicial independence and a clear violation of the separation of powers." Presumably the report is the sort of information that the judge condemned as fostering "distrust, misunderstanding, and apathy."

But actually Congress has ample "legitimate purpose" for this information. If Congress finds that some judges depart much more than others, that could be a signal that defendants' fates still depend too much on which judge they draw. Congress might then decide to revise the Guidelines, perhaps by limiting downward departures.

Or if Congress finds that some especially respected judges are departing often, that could be a signal that the sentencing ranges are too high and should be lowered. Congress is supposed to legislate based on knowledge about how the current law is being applied, not based on ignorance.

Of course, Congress could also use the report as a basis for publicly criticizing judges. But while such criticism may sometimes be unsavory or opportunistic, it too is perfectly legitimate in our democracy. Judges have no constitutional right to be free from criticism, by the citizens or by legislators. Judges are government officials, too. We, and our representatives, are entitled to publicly express our views about their performance -- and to have the information needed to express those views.

What about the risk that the criticism might make some judges feel pressured not to depart downward? Well, that's why we appoint judges for life, and try to choose judges who are strong and courageous. No judge needs to fear being arrested for a "wrong decision." Judging by the last 200 years of American history, judges need not even fear being impeached for their decisions. They may fear that they won't be elevated to a higher court -- but Congress and the President are entitled to know a judge's record when deciding whether to elevate him.

If judges really think their decisions are right, they should be able to withstand some criticism. And if the criticism persuades them that their decisions were wrong, that may improve their decisionmaking in the future.

Nor is there reason to worry about interference with "the Rule of Law." Judges make at least three kinds of decisions. Sometimes they decide about the facts -- who did what to whom. Sometimes they apply, interpret, or evaluate a law, deciding what a statute means, or whether a statute is constitutional. Sometimes, though, they apply their own moral judgment about what's a fair sentence in a particular case; that's what downward departures are all about.

Such sentencing discretion has little to do with "the Rule of Law." It isn't objective, impartial factfinding, or application of legal principles to interpret legal language. Rather, it's the rule of each judge's personal conscience. Congress could give judges' conscience free rein in sentencing. It can take away the judges' discretion entirely. Or it could leave judges with some discretion, while remaining free to comment on the ways the judges exercise that discretion.

No government official is constitutionally immune from criticism. Congress has every right to learn what other government officials are doing, and to express its views about their actions. And we should be concerned whenever a government official -- even a respected federal judge -- tries to suppress such criticism.