Justice Hugo Black, it is said, always carried a copy of the Constitution in his pocket. Now you can be a high-tech Hugo Black, with the Constitution for the iPod, brought to you by the American Constitution Society. Thanks to Ian Millhiser for the pointer.

Several people have e-mailed me asking whether I'll blog about the torture memo. The answer is probably "no," and I thought I'd briefly explain why not — partly to forestall future e-mails, and partly because I think it's interesting to think about how various writers decide what to ewrite about, and maybe this post might provide something of a data point.

First, while this is a very important controversy, it's also one that's outside my core area of expertise, and I'd have to do a good deal of reading to get competent on it. The memo is long enough, but I'd also have to get into the relevant international treaties and how they have been interpreted, and into the presidential power question (which is an aspect of constitutional law, but not one I usually do, since I generally focus on individual rights as such and not on structural questions). On other matters, such as free speech, law and religion, gun policy, cyberspace law, copyright law, and such, I can often whip off posts without investing a lot of time, since I can build on my substantial knowledge base in the field. Not so here.

Second, precisely because this is an important and controversial question, there are lots of other people commenting on it, and I'm likely to get lots of responses. I'd feel obligated to respond to some of them, especially if they contain important criticisms or point out errors on my part (not unlikely, given what I say above), especially because the topic is indeed so important. After two years of blogging, I can smell a time sink a mile away — and this is likely to be one.

Now of course there are times that I do invest a good deal of time into researching something that I want to blog about, and write it off to my General Education Time Account. That's one way my knowledge base gets built up.

But, third, I just don't like this topic. I find it not just difficult but also sickening. Torture is disgusting. Failing to stop the next terrorist attack that kills thousands is awful. Does the need to save people's lives justify torturing suspects? How many lives? Would it take hundreds of thousands (as in the hidden nuclear bomb scenario)? Thousands? Dozens? A couple? I don't know the answers, and while I have no doubt about the importance of the questions, I don't enjoy thinking about them. The whole topic is sad and horrible, whatever the right answer is.

It's not a rational reaction; it's a visceral one. I'm not proud of my squeamishness, but there it is. I know that just because something is sickening doesn't mean we shouldn't do it. Sometimes people need to do disgusting things to avoid greater harms. (And sometimes the disgusting thing is so disgusting that it is the greater harm, or at least doing it enough times will cause greater harms.) But if I had a choice in how to invest my scarce time, I'd rather not invest it here.

And fortunately I do have a choice. If I had to think about torture, I would. If I were paid for it, or if I were given a position of official responsibility which requited me to think about it, or if I was teaching a class or writing an article that would be incomplete without it, then I'd buckle down and do it. But none of these applies here. (I do in some measure have to think about this as a citizen, but fortunately that can be a much shallower and briefer thought process than it would take to develop an opinion that I would be comfortable sharing with others, an opinion that will be as thoughtful and defensible as I hope the readers of the blog have generally come to expect from it.)

I'm fortunate to be in a position where I can choose the topics I focus on. The downside of being an amateur (in the best sense of the word, I hope) is that you don't get the perks of a pro. The upside is that you can do what you love (the root "ama-" in "amateur"). I don't love talking about torture, not one little bit.

I have on a very few occasions in the past touched on this topic, usually when I had a small and rather tangential comment that I felt confident in (usually because it did flow from one of my core areas of expertise). If you want to see the three moderately long comments I made on the matter when the issue wasn't as hot, and posting didn't require immersing myself in the subject), see here, here, and (in the most detail) here. (Note that all of these talk about the broad theoretical questions, and not the international treaty or separation of powers issues raised in the most recent debate.) The third of these posts culminates with "So where does that leave me? Sad, unsatisfied, and afraid." That still about summarizes the matter. I might still post a little more in the future, or I might change my mind and indeed jump into the subject. But I don't expect that I'll be saying much about this.

In any case, I'm passing along this unusually meta comment because I do think that readers might find it interesting to figure out how some bloggers choose what to blog about and what to skip. I get enough messages saying "I'm surprised that I haven't seen you blog on [fill in subject here]" — related to a bunch of subjects — that I know people have expectations about what we're likely to focus on, sometimes accurate expectations and sometimes not. (Of course, perhaps "I'm surprised" is just a rhetorical trope meaning "I think you should blog on . . . .") Perhaps people might therefore want a peek into how at least one blogger's decisionmaking process operates here.

I generally support an equal treatment view of the Religion Clauses; the Establishment Clause generally bars discrimination in favor of religion, and the Free Exercise Clause generally bars discrimination against it. There are plausible arguments against such a view, especially (as to the Establishment Clause) if one is an originalist. But given the precedents that have accreted over the last several decades, precedents that the Court is unlikely to sweep away, it seems to me that the equal treatment view is on balance the best outcome we can get today. It generally treats people fairly, and it also has the merit of providing clear rules, rather than "The Establishment Clause requires some discrimination against religion, but not too much," or "The Free Exercise Clause requires some accommodation of religious observers, but not a lot."

Sometimes, though, I hear the following sort of argument:

Argument: The Establishment Clause should be read as requiring discrimination against religion.

Response: That sort of discrimination is unfair.

Rebuttal: Ah, but that's OK, because we can compensate for that by reading the Free Exercise Clause as requiring special benefits for religion.

And there's of course a converse argument — the Free Exercise Clause should be read as requiring special benefits for religion, but that's not unfair because we can compensate for that by reading the Establishment Clause as imposing special burdens on religion.

The trouble with this "quid pro quo" theory of the Religion Clauses is that it talks about "religion" as if it were some particular person: Look, Religion, sure, we're taking something away from you, but that's OK because we're giving you something in exchange. What's the big deal, buddy?

But there is no Religion. There are religions, and more importantly religious observers, each of whom has his own constitutional rights.

Many religions and religious observers may share many values, but they will also differ on many values and goals. True, there are some cultural battles in which secularists are aligned on one side and religious observers of many faiths on another. But those are only a small fraction of all potential political battles; and even in those, a person's religious denomination is likely to be as important as his felt religiosity.

There's little reason to believe that the religions or religious believers benefited by rigorous Free Exercise Clause protection will be the same as the ones burdened by a rigorously enforced Establishment Clause. Historically, Catholics have been quite burdened by a forceful Establishment Clause that has mandated discrimination against religious institutions (such as against religious schools in evenhanded school choice programs). But they have gotten very few benefits from the Free Exercise Clause, even when it was read as mandating special accommodations for religious observers.

On the other hand, the Amish have gotten some benefits from the old Free Exercise Clause under which religious observers were entitled to some special accommodations. But it's not clear that they have been much burdened by the Establishment Clause, even when the Court read the Clause as demanding more discrimination against religion than under the current reading.

I'm not even sure that the benefits of a rigorous Free Exercise Clause and the burdens imposed by a rigorous Establishment Clause will even out if you aggregate the effects on all religions. But more importantly, the aggregation isn't proper. When the quid is going mostly to some groups, and the quo is comingly mostly at the expense of others, a quid pro quo vision of the Religion Clauses makes little sense.

A reader asked me to elaborate on my comment about corporations having rights; I thought I'd therefore repost something I put up over two years ago, in the first months of the blog's life. Note that the following speaks only of corporate constitutional rights -- naturally, corporations have many rights protected by common-law and statute as well.

CORPORATIONS AND THE CONSTITUTION: A recent e-mail made me think of the perennial question -- should corporations generally enjoy the protections of the Bill of Rights?

The answer, I think, is a definite yes (with some exceptions that I might talk about later; note for now that the right to vote is not in the Bill of Rights). The courts have generally held this (again, with some exceptions), and they're right. Let me start for now with five general observations.

1. Consequences. The New York Times is owned by a corporation. Most private universities are organized as corporations. So are most nonprofit advocacy groups. So are many religious groups (though I believe some are organized through some special quasi-corporate forms). If you really believe that corporations lack constitutional rights, then the government would be free to ban corporate-run newspapers from criticizing the government, or ban the Catholic Church or the ACLU or the NRA from expressing its views.

Likewise, if corporations lack constitutional rights, the government could take their property without just compensation, and in fact without any hearing. It could just come in and grab it, no questions asked.

Now some people might think this is the right result. Or perhaps if this happened, people would stop using the corporate form -- newspapers, advocacy groups, and churches would somehow reorganize themselves as, say, partnerships or sole proprietorships. This might actually be hard, and from the perspective of people who disapprove of corporate rights, it might be counterproductive; what's the point of letting the Times have constitutional rights if it's run as a partnership but not if it's run as a corporation? But for now, my point is simply that we should clearly identify the consequences of denying constitutional rights to corporations -- and those consequences hardly seem sensible.

2. Individual rights. One reason these results may seem senseless is that restricting the rights of corporations usually means restricting the rights of individuals. If you take the property of a corporation without compensation, whom are you really hurting? Not "the corporation," which is, indeed, a convenient legal fiction. You're hurting the corporation's owners.

If you accept the legal fiction of the corporation being a separate person, then taking its property violates its rights. But if you reject that fiction, as a means of arguing that the corporation should lack rights, then taking its property violates its owners' rights. Either way, the Takings Clause should apply; and that's what suggests that the legal fiction (a corporation is a person) is a sensible one here -- using it makes analysis easier, but doesn't ultimately change the results much.

The same goes for the Due Process Clause, the Civil Jury Trial Clause, and so on. If you take a corporation's property, or let it be taken through certain procedures, you're affecting the property of individual owners. There's therefore no real reason to deny these rights to the corporation.

Likewise for free speech. Corporations don't actually speak; people speak. A corporation's employee (a person) communications information that is decided on by a group of managers (people) who represent the stockholders (other people). Barring the New York Times or the ACLU or the Catholic Church or General Motors from speaking bars real people from speaking using the corporation's property.

Aha, some might say, the real people aren't silenced -- they can still speak using their own property. But the Court has long understood that to speak effectively in a vast nation, you need to be able to pool your resources with others (even in this cyberspace age).

The Court has recognized this under the rubric of the right to expressive association, but the same applies to speech via corporations. When people contribute money to the ACLU, so that the ACLU's directors can decide what ACLU's spokespeople say, the contributors are making a decision to pool their resources so that some decisionmakers (the directors) can decide how to use them to speak. And the same goes for GM shareholders -- they are pooling their resources and giving them to some decisionmakers (GM managers) so they can decide how to spend the resources, including spending them for speech, whether advertising or political advocacy.

3. Constraining government power. Constitutional rights aren't meant only to protect individuals; they're also meant to constrain government power. The freedom of speech is valuable because it keeps the officials who are now in the government from suppressing criticism, and thereby entrenching their power. Procedural rights are valuable because they keep the government from punishing dissenters through arbitrary arrest, search, and imprisonment.

This rationale applies to corporate rights as well as to individual ones. Consider, for instance, First National Bank v. Bellotti (1978), where the Court clearly held that corporations generally have free speech rights. The Massachusetts legislature wanted the voters to give the legislature the power to impose an income tax. Various corporations -- which is to say, the managers of the corporations, whom the stockholders gave the power to speak on behalf of the corporations -- opposed the income tax. So to get the tax enacted, the legislature banned corporations from speaking out about most proposed ballot measures. If the government had the power to thus shut out one large set of speakers from the public debate, it would have tremendous power indeed.

Likewise, if the government had the power to freely take corporate property, think how much leverage this would give it. "Hmm, you don't want us to take your business away from you? Just make sure you don't speak out too much against us."

4. Creatures of the government. But wait, some might say: Corporations are created by the government; they only exist because of government-issued charters; why can't the government attach conditions to those charters, e.g., "If you get a corporate charter, you can't use it to express your views about ballot measures"?

The Supreme Court, though, has long (and correctly) recognized that the government does not have a free hand to impose conditions on grants of benefits. When the government controls 25-30% of the GNP, and has vast regulatory power over the economy, imagine what it could do using conditions. "Want a tax refund? Promise not to spend in on anti-government activity." "Want to buy a chunk of federally owned land to build a home? Promise to let us search your house whenever we like, without any excuse." "Want a corporate charter? Promise not to criticize the government."

The government does have considerable power to define the rules of property, contract, and corporations, especially if it's changing them for the future. (Retroactively attaching conditions to corporate grants is much more problematic.) If a state chose to bar the creation of any new corporations, it could do that, and newspapers, nonprofits, and businesses would have to organize as partnerships or sole proprietorships or other entities. But this power to bar corporate charters altogether does not give the government the power to say "We will give you a corporate charter, but only if you promise to waive your constitutional rights."

5. Economic power. But doesn't this allow the creation of entities with great economic and thus political power? Well, it's true that the corporate form does make it easier for people to pool their resources -- whether for business, for the business of news reporting, for nonprofit advocacy, for religious activity, or for other purposes. Had the corporate form not been invented, we'd probably have fewer such power centers.

We'd probably also have far less wealth, technological progress, health, and military security (since wealth tends to on balance bring health and military security). The aggregation of economic and political power does create some risks for democracy, for instance by making it easier for power centers (whether corporations, unions, or other interest groups) to lobby for government handouts and protectionist measures. But modern economic history suggests that such aggregation of power is necessary to effectively develop and distribute consumer products, tools, medicines, food, and so on.

Finally, remember that the federal government is the largest single aggregation of economic and political power. It controls 20% of the GNP (the 25-30% figure includes state and local governments). It controls the military. It can pass laws that govern our lives.

Stripping all corporations of speech rights won't materially empower individuals; individuals are generally powerful to the extent that they can form themselves into groups. Stripping for-profit corporations and unions of speech rights will comparatively empower nonprofit corporations (religious entities, the NAACP, the NRA, and so on), since they won't have the media or other business corporations as rivals.

But the group that has the most to gain from denying corporations free speech rights is the government, which will have even fewer power centers to balance its tremendous power.

Every so often I've heard people argue that "states and nations can't have legal rights." The claim isn't just that states and nations don't, as a moral matter, have basic human rights; it's that it's somehow wrong to talk about their legal rights. (For instance, some argue that the Second Amendment must secure individual rights, not states' rights, because "rights" can only belong to individuals, not states; I agree the Second Amendment secures individual rights, but not for that reason.)

This claim, it turns out, falls into the category of They're Making It Up. It's generally made as an assertion of what the term "right" actually means -- and that assertion is simply false, as a matter of American usage. It seems to be a simple theory that someone came up with, and that others who heard it adopted because it fit their political attitudes. They certainly didn't adopt it based on evidence for the theory, because there is no such evidence.

I collect sources here; they include the Articles of Confederation and The Federalist, but Supreme Court cases speak the same way. Consider a few examples:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (Articles of Confederation.)

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated . . . . (Articles of Confederation.)

The right of equal suffrage among the States is another exceptionable part of the Confederation. (Federalist No. 22.)

It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. (Federalist No. 31.)

There's plenty more out there, too.

One could, of course, also claim that "right" should be defined to apply only to individuals, or only to individuals and nongovernmental organizations, and not to states or nations or government bodies. This isn't how I've heard the claim made, but I can certainly imagine it being made this way.

This would also be Making It Up, but at least it would be honest Making It Up -- it would be a self-conscious attempt to change the definition of this pretty old legal term. One would, of course, then have to give some good reasons for such a redefinition.

But simple claim that states and nations just can't have legal rights under our current legal system, under the Framers' vision of our Constitution, or under broader American legal traditions, is false.

and then I hope to stop. Steve Bainbridge writes:

I locate the term "positive rights" in the context in which it was typically used in Cold War debates between Western democracies and the Socialist bloc. The latter typically defended their abysmal human rights records by saying that their system provide certain positive (a.k.a. economic a.k.a. security) rights that the Western system did not. Hence, for example, I understand the term "positive right" to refer to a specific type of claim, such as:

"You have a right to a job. If you cannot find one, the state will use its taxing and spending powers to create a public works job for you or its regulatory powers to induce some private actor to hire you."

As the always useful Wikipedia explains:

Many positive rights are economic in nature: they involve the rights-holder being assured of the provision of some economic good such as housing, a job, a pension, or medicine. Under most systems of social democracy, these are provided under some manner of public welfare system, in which public funds are used to establish public housing, works programs, social security, and the like.

So defined, it seems that part of our disagreement is semantic. As I understand your definition of positive rights, you are using that term in a far broader way than the I am.

As I understand your argument, it has two main claims: (1) Enforcement of negative rights has a positive component, in the sense that the government's enforcement of such rights confers a benefit on the claimant of said right. (2) Enforcement of negative liberties can constrain the liberties of others. Some of the more radical libertarians around the blogosphere took issue with you on that one, but I am prepared to concede both points. Indeed, I already conceded at least the first point in my earlier posts (albeit somewhat begrudgingly).

Accordingly, I do not deny that both the Constitution and the larger legal system confer some positive rights in the broad sense you have defined them. I still maintain, however, that many of those positive rights are procedural or process-oriented (such as the right to vote). Others involve the use of government power to facilitate private ordering. Still others entail government provision of public goods.

In any event, the key issue for me is whether the validity of positive rights as I have defined them follows from your argument. In other words, does the fact that the government provides some positive benefits mean that government also must (or, at least, should) provide the positive rights William Saletan posited? Do you have a right for the government to use its taxing, spending, and/or regulatory powers to confer upon you a private good? Do you have a positive right to a job?

In an earlier post, I quoted two leading judicial decisions rejecting claims of such positive rights as being foreign to the American system of liberty. . . .

This is the sense in which Reagan understood the concept of liberty. It is also the conception of liberty that I set out to defend in my TCS column. And, my friend, I suspect it is a conception of liberty that you find congenial as well. . . .

Steve and I are indeed not far apart. I think he and I would equally reject most claims of positive rights. And it looks like he and I now agree that conservatives and many moderate libertarians would indeed support the government providing some positive rights under a broad definition (which, as my earlier post quoting Black's Law Dictionary suggests, is the common definition) -- chiefly the very important benefits of contract enforcement and police protection.

I also think my definition is the clearer and better defined one. Note that the chief definitions Steve starts with are definitions by example, which makes it hard to determine their boundaries. And his follow-up, which is that positive rights are benefits that aren't merely enforcement of private ordering or provision of public goods doesn't fit neatly into the positive/negative dichotomy: There's no reason why an entitlement to government provision of public goods is somehow "negative" rather than "positive" -- I'd say that it's generally a positive right, but a justifiable one.

I do think that not all other positive rights are "foreign to the American system of liberty" -- the chief example is a positive right to government-funded and government-supplied education, which has been part of the American tradition since the 1800s, and is part of many state constitutions (though not the federal Constitution). Even many conservatives would support some such positive right, though many of them might prefer government funding to government provision of the actual service. (I suppose that Steve might argue that the right to an education is under his framework not a "positive right" because broad education is a public good -- but that would just show, I think, the oddness of his definition of "positive right.")

But more generally, I agree with Steve that the government should provide relatively few benefits to citizens. I just think that we need to acknowledge that it does and should provide some benefits, including some positive rights (rights "entitling a person to have another [in this instance, the government] do some act for the benefit of the person entitled"). The debate should then be over the scope of those benefits -- and that is a debate on which Steve and I are indeed probably quite close together.

Given my recent exchange with my friend and colleague Steve Bainbridge about positive and negative rights, I thought it might be interesting to give a slightly broader perspective on rights, at least as that term is used in American law and legal thinking. (None of this is new to Steve, but I thought it might be interesting to some readers.)

The term "right" is a broad one, which encompasses many different kinds of entitlement.

Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).

Rights can be constitutional (e.g., the freedom of speech), statutory (e.g., copyright, which is authorized by the constitution but actually secured by Congressional statute, or freedom from many kinds of private discrimination), common-law (e.g., historically, rights to be free from private trespasses, negligence, defamation, breach of contract, etc.), or contractual, depending on which source of law secures those rights.

Rights can belong to individuals, associations of individuals (churches, partnerships, corporations), or governments (especially when the government's right is a right asserted against other governments). Some people claim that governments can only have "powers," not "rights," but that's not the way American legal usage has operated (see here for sources).

Rights are generally judicially enforceable, but they may also be broadly agreed on as entitlements even when the courts don't step in. For instance, most people would say that everyone has a right to police protection, even though such a right may be unenforceable. We think the government ought to provide that protection (subject to manpower constraints, and possible police and prosecutorial discretion not to enforce certain relatively petty laws). If the government fails to provide such protection, we would think it's doing something wrong, and the political process would often correct this. So this is something of a right (especially when the judgment is about the government's proper role, and not just judicially enforceability). Likewise, the constitutional command that Congress protect each State from invasion is probably not judicially enforceable; but one can characterize this as a right of a state.

Rights can be negative rights, which is to say (quoting Black's Law Dictionary), "entitling a person to have another refrain from doing an act that might harm the person entitled." Some examples: Free speech, a negative right against the government; my property rights in my land, a negative right against both the government and private entities.

Rights can be positive rights, which is to say "entitling a person to have another do some act for the benefit of the person entitled." Some examples: The right to demand that the government enforce your contracts (a constitutional right against the government); the right to public education under those state constitutions that secure such a right (a state constitutional right against the government); the right to get money under an annuity you've bought (a contractual right against a private entity); a child's right to support from his parents (a common-law and statutory right against a private entity).

Rights can be equality rights, which is to say rights to be treated the same way that others who differ only in certain particulars are treated. Some examples: The right not to be discriminated in government hiring (a constitutional and statutory equality right against the government) or in private hiring (a statutory equality right against a private party). This may end up being a right to get a certain benefit, but only when the government or the private party is already giving the benefit to others.

Rights can also be rights to participation in government functions, such as the right to vote (secured by various state and federal statutory provisions, and in some measure by some state and federal constitutional guarantees). These are in a sense positive rights, but not quite the same as other rights.

Rights can also be mixtures, or look like one while actually being the other. The right to have a criminal defense lawyer appointed for you (if you're too poor to afford one) may look like a constitutional positive right, but I think it's really a constitutional negative right — it's really the right not to be deprived of your liberty unless you've been convicted through a process in which a lawyer has been appointed for you. Similarly, your rights in your property consist of (1) a negative right against private people who would trespass on it, (2) a more limited negative right against the government, preventing it from trespassing on the property unless it takes the property for a public purpose and pays just compensation, and (3) a positive right against the government to protect your property via the court system and the police.

The Constitution and positive rights: As I've mentioned above, the federal Constitution does secure a few positive rights. The clearest example is the Contracts Clause, which bars states from impairing the obligation of contracts, and thus mandates states to provide a forum for enforcing contracts. Under this Clause, people do have "[a] right entitling [them] to have another [the government] do some act for the benefit of the person entitled." (The Court has provided only weak protection for this right, which I think is a mistake, but the right still is a positive right.)

Likewise, the Takings Clause bars the government from interfering with my right to exclude others from my property. If I own some wooded land, the government can't just say "You must allow everyone onto the land." I think it follows that the government also can't simply refuse to enforce trespass laws, for instance by saying "The police and the courts shall not enforce civil or criminal trespass laws against those who trespass on others' woodland property, or who tear down fences protecting others' woodland property." Such a deprivation of legal protection would be close to legally destroying my property right. (It wouldn't be exactly the same, because it would still leave me with some negative right to be free of legal punishment for defending my property through force.) I think that such a denial of property protection probably would violate the Takings Clause.

In any case, the Contracts Clause example at least illustrates that the quotes Steve Bainbridge gives about the Constitution's securing only negative rights are not completely correct — they are generally right, but they admit of some exceptions.

Many state constitutions provide more positive rights — two prominent examples are the right to sue in court, and in many constitutions the right to a public education.

Conservatives and positive rights: Finally, this helps me elaborate on my point about the rights to property and enforcement of contracts being positive rights that even conservatives and many moderate libertarians generally endorse.

Consider the various agencies of government, and the demands that you can place on them.

You can go to the police station and say "Come eject these people who are trespassing on my property." That's generally seen by conservatives as a right, even if not always a legally enforceable one. It's the positive right to get (and without paying for it, except through taxes) a certain government service.

You can go to court and say "Issue a judgment awarding me damages for my ex-partner's breach of contract." That is a legally enforceable right, secured both by common-law and by the federal constitution. It's the positive right to get (and these days without paying for the entirety of the court's expenses) a certain government service.

You can go to the government and say "Educate my child for free." That is a legally enforceable right, secured by state statutes and many state constitutions. It's the positive right to get a certain government service — one that's more controversial among many libertarians and some conservatives, though also one that's broadly accepted by many conservatives and some moderate libertarians (though they might prefer that the right be to a voucher redeemable at a wide range of schools).

You can go to the government and say "Give me medical care." That too would be a positive right to get a certain government service, though one that is probably opposed (except perhaps as to a few services, especially ones having to do with communicable diseases) by many hard-core conservatives and libertarians.

All of these are claims of positive right. Indeed, one can distinguish them on various grounds — for instance, one can argue that government enforcement of property and contractual rights simply "facilitat[es] private ordering" (see this post of Steve's) or "provide[s] public goods" (see this other post of Steve's). I'm not sure that these are perfect distinctions, but I do think there's much to them. As I said, I generally oppose many proposed positive rights against the government.

But none of these distinctions change the fact that

1. a right to get the government to enforce your contracts (secured by the Contracts Clause and by the common law and statutes of all states),

2. a right to get the government to protect your property by awarding you injunctions and damages against trespassers (secured by the common law and statutes of all states, and I think by the Takings Clause),

3. a right to get the government to protect your property by sending out the police or the sheriff to eject trespassers (accepted as a matter of practice everywhere, even where it's not legally enforceable through a lawsuit against the police department, and I suspect actually legally enforceable in many states), and

4. a right to get the government to protect you by sending out the police when you call for them (accepted as a matter of practice everywhere, subject to manpower constraints and other limitations, though generally not legally enforceable)

are all positive rights — "right[s] entitling a person to have [the government] do some act for the benefit of the person entitled" (though indirectly also for the benefit of society) — that conservatives and moderate libertarians would generally endorse.

So I return to my earlier point: "[P]rotection of private property and freedom of contract" is indeed a core function of government. Conservatives are right to stress its importance. But it is not the antithesis of positive rights against the government. Rather, it necessarily involves such positive rights (at least in the view of conservatives and most moderate libertarians, and in the American legal tradition of protecting property and contract).

Just finished rereading Larry Niven & Jerry Pournelle's The Burning City, and liked it as much as I did on first reading. I highly recommend it. I generally like most of what they've written, either together or separately; but this ranks as one of the best.

From a story in the Arizona Republic, May 21, 2004:

Offended citizens and school officials should work together to resolve a politically charged dispute brought on by a teacher who used a school computer system to send out offensive material, a government agency has said. . . . If the parties cannot work out a solution, a lawsuit could be filed against the college district.

"The determination was a wake-up call for the district," said Jim Lugo, a sophomore at the college. "It's helped emphasize what the community has been trying to tell the district: They need to step in and make sure nothing like this happens again."

Walter Kehowski, a faculty member at Glendale Community College, in October 2003 e-mailed to all district employees several Internet links that contained remarks considered to be anti-American. Kehowski posted hundreds of Internet links relating to virulent anti-Americanism, with titles including "Americans Thinks the World Belongs to Them!" and "American Double Standard," said the government agency in a letter of determination, which spells out the findings of investigators.

The links also included remarks offensive to men and religion, the report said: "'Why Christianity is Anti-Democratic,' 'Why Men Are Oppressors — Reasons to Strengthen Title IX' and 'Patriarchal chickens come home — but not to roost.'" . . .

A spokesman for Maricopa Community College District stressed that the federal investigation did not prove whether illegal speech occurred. . . . Typically, though, when the federal agency makes a "letter of determination," investigators have found a reasonable cause to believe that there is enough evidence to find illegal behavior.

"We try to resolve the problem between the parties," said a regional attorney for the agency. "If they can't work together, there could be a lawsuit."

Clorinda Quiroz Lozano, a Phoenix College student, wants school administrators to work out the problem.

"No one should get away with that," said Lozano, 53, who said she also filed a complaint with the agency against the college district for the incident. "No one. Not for anti-Americanism. We want respect."

Outrageous, no? Well, I confess that I changed a few details here. Here are excerpts from the actual story:

Latinos and school officials should work together to resolve a racially charged dispute brought on by a teacher who used a school's computer system to send out offensive material, the U.S. Equal Employment Opportunity Commission has said. . . . If the parties cannot work out a solution, a lawsuit could be filed against the college district.

"The determination was a wake-up call for the district," said Jim Lugo, a sophomore at the college. "It's helped emphasize what the community has been trying to tell the district: They need to step in and make sure nothing like this happens again."

Walter Kehowski, a White faculty member at Glendale Community College, in October 2003 e-mailed to all district employees several Internet links that contained remarks considered disparaging to Hispanics. Kehowski posted hundreds of Internet links relating to "racial hatred, intimidation and supremacy," with titles including "Mexicans Think U.S. Belongs to Them!" and "Mexican Double Standard," said the EEOC in a letter of determination, which spells out the findings of investigators.

The links also included remarks offensive to women and religion, the report said: "'Why Islam Hates Democracy,' 'Why White (and other) Women Can't Jump a Facelift for Title IX' and 'Multiracial chickens come home — but not to roost.'" . . .

A spokesman for Maricopa Community College District stressed that the EEOC investigation did not prove whether harassment occurred. . . . Typically, though, when EEOC makes a "letter of determination," investigators have found a reasonable cause to believe that there is enough evidence to find discrimination.

"We try to resolve the problem between the parties," said Mary Jo O'Neill, regional attorney for the EEOC in Phoenix. "If they can't work together, there could be a lawsuit."

Clorinda Quiroz Lozano, a Phoenix College student, wants school administrators to work out the problem.

"No one should get away with that," said Quiroz Lozano, 53, who said she also filed a complaint with the EEOC against the college district for the incident. "No one. Not for harassment. We want respect."

Yet for First Amendment purposes and academic freedom purposes, anti-American speech is no more and no less protected than "Mexicans Think U.S. Belongs to Them!," "Mexican Double Standard," "Why Islam Hates Democracy," "Why White (and other) Women Can't Jump a Facelift for Title IX," and "Multiracial chickens come home — but not to roost." If you're worried about the government agency actions in the modified excerpt (especially if the agency ultimately does sue the college for tolerating speech that some find offensive), and if you think that the agency should have just announced that it has no right to sue over constitutionally protected speech like this, then it seems to me you should think the same about the actual excerpt.

A very interesting Slate piece; I can't vouch for its accuracy, but it sounds plausible. Key point:

When an android, such as R2-D2 or C-3PO, barely looks human, we cut it a lot of slack. It seems cute. We don't care that it's only 50 percent humanlike. But when a robot becomes 99 percent lifelike — so close that it's almost real — we focus on the missing 1 percent. We notice the slightly slack skin, the absence of a truly human glitter in the eyes. The once-cute robot now looks like an animated corpse. Our warm feelings, which had been rising the more vivid the robot became, abruptly plunge downward. [Japanese roboticist Masahiro] Mori called this plunge "the Uncanny Valley," the paradoxical point at which a simulation of life becomes so good it's bad.

Of course, the really important (I mean billion-dollar important) effect of this is likely to be on the future digital porn / virtual reality sex market . . . .

The Justice Department announced a week ago that it had "entered into a consent decree with New York City and various school district officials, settling allegations of civil rights violations and deprivations of equal educational opportunities at Brooklyn's Lafayette High School":

The government's complaint, filed in the U.S. District Court for the Eastern District of New York, alleges that school district officials deliberately ignored severe and pervasive harassment directed at Asian-American students by their classmates. This harassment allegedly included both physical and verbal abuse, including multiple violent assaults. According to the complaint, students regularly threw food, cans and combination locks at Asian-American students, while shouting ethnic slurs. . . .

The New York Times covered this, as did AP, UPI, the New York Daily News, Newsday, and the New York Post.

But none of the stories that I saw reported on the race of the attackers (and neither did the Justice Department press release). Newsday columnist Sheryl McCarthy, however, did reveal at least some attackers' races:

According to a Department of Justice report, students threw food or cans or combination locks at them in the cafeteria. In June 2001, a Pakistani student was beaten by a group of black and Hispanic students for no apparent reason.

In late 2002 a Chinese student was strangled from behind and nearly asphyxiated in a school shower, reportedly also by a black student. And in December 2002, Siukwo Cheng, an 18-year-old Chinese student whose 96.86 grade point average put him in the running to be senior class valedictorian, was kicked and beaten unconscious just outside the school by a group of black students.

Earlier that day Cheng had confronted some black students who had insulted a teacher, and as he was being beaten his attackers told him they could "do anything they wanted to a Chinaman." . . .

Before I knew the details about the attacks on Asian students at Lafayette, my first question was whether they were perpetrated by black students. The fact that they were strikes me as especially sad, given that only a few weeks ago we were reading stories about the anniversary of the Supreme Court decision that outlawed racial segregation in public schools. . . .

[T]o hear about black students harassing and attacking Asian students is sickening. I suspect this antagonism has as much to do with the fact that Asian students do much better academically than blacks as it has to do with race.

After all, the biggest challenge facing public schools today is finding a way to close the achievement gap between white and Asian students on one hand and black and Latino students on the other. The research suggests that Asian students are among the top academic achievers because of a work ethic that's fueled by the immigrants' ambition to succeed in this country.

I can imagine black students seeing this kind of drive and responding in one of three ways: acknowledging it but dismissing it as too demanding for themselves; seeing it as a possible path to their own goals and emulating it; or resenting it and lashing out bitterly.

When I heard about the attack on Siukwo Cheng, the A-minus student who was beaten unconscious for demanding respect for his teacher, it confirmed my suspicions about what's going on at Lafayette. Apart from the racism that was involved, that attack was also about a profound disrespect for education.

Nor are Asian students the only ones at Lafayette High who are oppressed by the violent behavior of the disruptive ones. So are the school's other black and Hispanic and white students, who'd just like to get an education in peace.

And until the thugs in their midst learn to respect both the Siukwo Chengs of the world and the value of an education, even 100 years after the Brown decision they'll still be doomed to living inferior lives.

I don't know whether Ms. McCarthy's guesses about the attackers' motivations are correct. I also don't know whether the examples she gives are representative of the incidents -- maybe some of the other attackers were members of other racial groups. (If anyone can point me to a copy of the Justice Department report itself, I'd like to hear it.)

But her column -- and its counterpoint to the news stories, which say nothing about the attackers' races -- does raise an important question: When newspapers are covering racial and racist conflicts, should they remain silent about which groups' members are involved in the conflict (at least on one side)? Or should they reveal them?

Last week, the Senate Judiciary Subcommittee on the Constitution yet again endorsed (by a 5-4 vote) an anti-flagburning amendment. It's apparently coming to the full Committee in a few days. So, everything old being new again, I thought I'd repost my L.A. Times op-ed criticizing this proposal:

"What's Wrong With the Flagburning Amendment" (published in slightly different form in the L.A. Times, July 18, 2001)

"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so that's not exactly how the proposed flag protection amendment reads -- I've added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn't be protected by the First Amendment because it isn't "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I'm wrong, then both should be unprotected.

Of course, burning the U.S. flag deeply offends many people. But so does waving the Confederate flag, even when it's done by individuals and not by state governments. Many American boys died defending the U.S. flag -- and many of them died fighting against the Confederacy. Burning the U.S. flag is often an anti-American symbol. Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.

It's true that many people see the Confederate flag as not just as a symbol of the Confederacy, and of a slave state rebellion prompted by the election of an anti-slavery President: They also see it as a symbol of other things, such as Southern pride. But likewise some people burn the U.S. flag not because they hate America, but only because they want to protest what they see as the American government's errors. Like most symbols, flagburning and flagwaving often mean subtly different things to different people.

So one danger of the anti-flagburning amendment is the slippery slope. If the amendment is enacted, even without a clause for the Confederate flag, many people will be energized to try to ban other symbols that offend them. Think of it as "censorship envy" -- if my neighbor gets to ban symbols he dislikes, why shouldn't I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.

Of course, it's likely that the slippery slope will be resisted here, and people will remain free to wave the Confederate flag. But America would be even more endangered by a selective ban on flagburning alone than by a broader ban: Such selective suppression will bitterly divide us, rather than uniting us.

Right now, when people -- mostly blacks -- are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans hate flagburning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we hate, but you in the minority don't"? "Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable"?

If you were black and saw the Confederate flag as a symbol of slavery and racism -- and millions of blacks do, whether you agree with them or not -- would you be persuaded by these arguments? Would you feel better about America because of them?

America is different from most other countries, and even from most other democracies. In America, all ideologies are protected, even those that the majority thinks are evil.

Why is this right? Because the First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars.

The Amendment is a truce: "I won't try to suppress your ideas, if you don't try to suppress mine." And the flagburning amendment risks shattering this truce.

The State University of New York at Brockport has the following speech code (emphasis added):

Also expressly prohibited by this policy is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his/her race, color, religion, sex, sexual orientation, age, disability, marital status, national origin or any other characteristic protected by law or that of his/her relatives, friends or associates and that:

1. Has the purpose or effect of creating an intimidating, hostile, or offensive work or learning environment. . . .

Examples of Inappropriate Behavior

in an Anti-Discrimination and Anti-Harassment Environment

* Derogatory comments about an individual's membership in a protected group, for example, calling someone an "old bag."

* Visual messages that are degrading to or reflect negatively upon protected groups, for example, cartoons that depict religious figures in compromising situations or displaying sexually suggestive pictures.

* Jokes that have the purpose or effect of stereotyping, demeaning or making fun of any protected group. An example might be jokes about persons with AIDS or an ethnic joke. . . .

* Sex-oriented and/or lewd verbal kidding, joking, remarks, questions or gestures.

* Discussing sexual activities.

* Comments and/or questions regarding an individual's physical attributes.

* Accessing and/or displaying materials on or from the Internet that relate to or reflect negatively upon any protected group, for example, displaying sexually suggestive materials from the Internet on your computer screen.

Breathtaking. Fortunately, the Foundation for Individual Rights in Education is suing to overturn this speech code. Should be an easy lawsuit to win, given how patently unconstitutional this policy is.

I was a supporter of Ronald Reagan's, and I think it's fitting to mark the occasion of his death — but it seems to me that spending about half a billion dollars of taxpayer money for a paid holiday for federal employees (see here and here) isn't quite the right way to do it.

Now: "Reagan's admirers contend that his costly re-armament program caused the Soviet collapse. Maybe so; but surely the thing that did in the Russians was that time had proved communism an economic, political and moral disaster."

In 1982: "I found more goods in the shops, more food in the markets, more cars on the street — more of almost everything . . . . [T]hose in the United States who think the Soviet Union is on the verge of economic and social collapse, ready with one small push to go over the brink are wishful thinkers who are only kidding themselves."

(Thanks to Dinesh D'Souza for the quotes, to this site for more on the 1982 quote, and to Dan Gifford for passing along the pointer. I have not checked the context of the quotes; if they are materially out of context, please let me know.)

Now these statements are not entirely inconsistent: Perhaps time proved it after 1982, or time proved it before 1982 but the 1982 Schlesinger hadn't read the proof yet. Or perhaps Schlesinger might point out that he was simply saying that it wasn't ready with one small push to go over the brink (it would take a medium-sized push), and it wasn't quite on the verge of collapse (it was a bit away from the verge); that, though, hardly seems to be the tone of the quote.

But even if the statements may be consistent, the 1982 one — especially read together with the 2004 one — does undermine to some extent Schlesinger's credibility, no?

My friend and colleague Steve Bainbridge has a TechCentralStation essay that praises government protection of "negative rights" ("the right to be let alone") and generally condemns government protection of "positive rights" ("a right to an education, a job, etc."). The piece doesn't define the terms explicitly further, but as I understand it, the terms usually refer to the right to be let alone by the government (negative rights) and the entitlement to benefits provided by the government (positive rights).

Bainbridge then goes on to praise "private property and freedom of contract," which I agree are very important. But he then goes on to say:

As the analysis thus far suggests, private property and freedom of contract are at the center of the debate over positive and negative rights. You cannot achieve positive rights of the sort [William] Saletan [of Slate] likes without infringing on someone's negative rights to private property and/or freedom of contract.

I think, though, that this simple negative/positive rights distinction doesn't really do the work that most conservatives or even moderate libertarians would want it to do — because private property and freedom of contract (as generally understood) themselves involve positive rights.

When we say that "protection of private property and freedom of contract" should be "legitimate social goals," we're saying that the government should take steps to protect our property (for instance, by arresting trespassers) and enforce our contracts (for instance, by seizing the property of people who breached contracts and were held liable for damages). We're also saying that the government generally shouldn't itself take our property — there is indeed a negative rights component to property — but we're also saying that each of us is entitled to demand a certain benefit (property protection and contract enforcement) from the government.

What's more, this benefit is generally seen as the entitlement of all people, even those too poor to pay for it. Some (though probably not most) conservatives and moderate libertarians might insist that rich plaintiffs personally pay their full share of litigation and enforced (including the prorated salaries of police officers and judges, capital expenses, and other costs). But few would demand such payments as a condition of poor people's filing suit or calling the police: A poor person should be able to get the police to arrest someone who has taken his property, even without paying for the police officers' time and risk. (Anarchists may disagree with this, but most mainstream conservatives like Steve, or moderate libertarians like me, would, I think, take the view I describe.)

And this government benefit is itself given at the cost of the other party's negative rights. My right to my private property in my land and my fruit trees means that I can demand that the government keep people from walking on the land or picking my fruit. This is a restraint on those people's negative liberty to go where they please and do what they please with their bodies. It's a perfectly legitimate restraint — but it is a restraint, in that it does enforce my (morally proper) positive rights by limiting their (morally untenable) negative liberty.

This is of course most obvious with intellectual property; my patent, for instance, blocks you from doing what you please. But it's equally true of tangible property, real and personal — we just don't notice it as much because we're so used to it. All property is a restriction on someone's negative liberty.

More broadly, I think even most conservatives would conclude that people have a positive right to police protection more broadly — even poor people should get it, even if they're too poor to pay for it via taxes. Some may say the same about fire protection, though some libertarians would part ways on that. But it's only the anarchists who just oppose all "positive liberty" claims, I think. In the view of others, there are certain benefits, such as police or fire protection, that a good government ought to provide to all people, even at the expense of taxpayers (whether the "ought" stems from some moral rights to government benefits, or from pragmatic concerns).

This having been said, I agree that we should be skeptical of claims of positive liberty beyond a certain narrow zone. I am, after all, something of a libertarian, though not an anarchist.

But I don't think that the distinction is as simple as that positive rights are bad and negative rights are good (something that isn't explicitly stated in the column, but that I think the column strongly suggests). Rather, it seems to me that the question is which positive rights should be protected, and why.

I realize that by conceding this, people like me make the welfare-state liberals' case easier. And this is one reason why some people do become radical anarchists, who think that there should be no government at all, even to protect property rights or freedom of contract.

But I don't think the radical anarchist view is a sound position (for reasons too complex to go into on the blog). I also don't think that even requiring all people, including poor people, to pay for all police, judicial, and national defense services they use is a sound position. Maybe I'm wrong to hold this view — but people who hold this view must, I think, admit that the question isn't whether positive rights (in the sense of entitlements to government benefits) are good, but which ones are good.

UPDATE: More on this from Stephen Bainbridge and Clayton Cramer. No time to respond in detail now to Steve, except to repeat that while the government as protector of private property may be said to be functioning as simply "a facilitator of private ordering," it is nonetheless (1) restricting others' negative liberty and (2) providing a valuable service to which we think everyone is entitled. That has a lot in common with other positive rights, as I first suggested, though I agree that it is in important ways different from some other such rights.

Steve Kurtz points to Tom Franck's indictment of the game:

In even a casual introduction to the game of quidditch, its flaws are so obvious and so great that it strips JK Rowling naked and reveals just how divorced she is from our world of muggle sports. . . .

The general idea of a broom-riding basketball/hockey/soccer game is not unsound. The problem is introduced with the position of seeker and the hunt for the golden snitch. The objectives of having chasers get the quaffles into the goals and the seeker catching the golden snitch are completely unrelated to one another. It's as if two separate games have been clumsily welded together. . . .

A quidditch game only ends once a seeker catches the golden snitch. It also gives his or her team an additional 150 points. (Quaffle goals are worth 10 points each)

If you were an avid quidditch fan, your most common feeling would be one of non-satisfaction. Essays by sports columnists attacking the rules would be commonplace. The better team would often lose and the winning team would often have hollow-feeling victories. There would be numerous tales of the seeker who lost the game for his team when he foolishly caught the golden snitch, not realizing his team was down by more than 150 points at that second . . . .

The NBA finals are upon us. Bring a friend over, turn on the TV and each pick a team. Then pull out a chess board and play while the game is going on. If you win the chess game, give yourself 150 points and add it to the score of whichever NBA team you picked. If that total score is greater than the number of points of your opponent's NBA team, you win! The marriage of the two contests into one makes just as little sense as quidditch . . . .

Objections, counterarguments, curses, etc. should all be sent to Franck, not to me.

Clayton Cramer faults the dissenting judge in the Ninth Circuit decision that I point to below (Marsha Berzon) for her interpretation of Lawrence v. Texas:

For all that supporters of Lawrence talk about love, commitment, and relationship, the fact of the matter is that by scrapping all notions of sexual morality between adults, Lawrence is opening the door to scrapping laws intended to protect an adult with the mental capabilities of a chid from exploitation by a guy who barely knew this woman. . . .

I sympathize in some measure with Cramer's point, and I think there's a good argument here that the sexual autonomy rights of the mentally retarded should be determined by legislatures, and not as a constitutional matter.

But at the same time, it seems to me that Cramer's argument misses an important point: Sure, the mentally retarded are vulnerable to sexual exploitation. But if statutory rape laws were fully enforced, then the mentally retarded would be vulnerable to a lifetime with no sexual relationships, even loving, nonexploitive relationships. And even if they aren't fully enforced, then they are vulnerable to a lifetime of sexual relationships only with people who are willing to face time in prison to have such a relationship with them.

Even if one believes that the law should enforce sexual morality, what does sexual morality tell us about this situation? That people who are mentally retarded ought never be allowed to have legally tolerated sex with anyone? That they may only have sex if they're married -- even though such a "marriage" might be a sham, because they cannot comprehend the moral or legal obligations that go with such a marriage, and because they cannot meaningfully consent to the marriage any more than they can meaningfully consent to nonmarital sex? (Should state law even allow marriages among people who are mentally retarded enough that they can't consent to sex, and can't enter into many other much less important contracts?)

Again, I'm far from sure what the right answer is here. And I agree that talk of autonomy and freedom of choice isn't fully apt (and perhaps isn't apt at all) when we're dealing with people who lack the mental capacity to fully comprehend the nature and consequences of their choice. But talk of legally enforced sexual morality doesn't seem to be entirely helpful here, either; and while talk of avoiding exploitation is important, I'm not sure that it provides a complete answer, for the reasons I give above.

One more thought, triggered by a reader who mentioned an incident where the sex seemed clearly exploitative. Imagine that a mentally competent 40-year-old has sex with a mentally retarded 19-year-old. Exploitive or not? After you answer this, please click below for the follow-up questions:

A just-released Ninth Circuit opinion has a fascinating debate on this difficult issue. See especially pp. 7264 and 7278-84, which should be quite accessible to laypeople.

I've long been interested in this issue (as a purely academic matter, I assure you). Sex with the mentally retarded is generally treated as statutory rape — just as children below some age are seen as legally incapable of giving meaningful consent to sex (even when they are in fact enthusiastic about engaging in the act), so are the mentally retarded. And that does make a good deal of sense.

But at the same time, if you take this seriously, the mentally retarded would be legally forbidden to have any sex ever in their lives. That's quite a burden, it seems to me, and a much greater one than for children, because it's permanent rather than just temporary.

In practice, I suspect that many mentally retarded people do have sex — some exploitative and likely physically or emotionally harmful to them, and some quite fulfilling and likely beneficial to them — because these laws are quite underenforced. Still, the existence of the laws means that these people's sex lives are entirely on the sufferance of government officials. If the law were completely enforced, the mentally retarded would have no sex at all; and anyone who is engaged even in a mutually good sexual relationship with them is at the mercy of the prosecutor.

What solution can there be for this? And even if the answer is to stick with prosecutorial discretion, how should prosecutors exercise this discretion? Should they basically let parents decide who should be authorized to have sex with the mentally retarded person? Should they do so, but subject to the prosecutor's veto (or some judge's veto) when the parent's actions seem exploitative (for instance, if the parent is essentially pimping the child, for instance letting their drug dealer have sex with the child in exchange for drugs)?

Should there be some judicial override of the parent's veto, as there is for children's abortion rights? Should prosecutors or judges try to distinguish "exploitative" relationships from "beneficial" ones? If so, should they try to avoid their own value judgments (e.g., casual sex bad, committed relationship good, group sex bad, one-on-one sex good, homosexual sex bad, heterosexual sex good)? Or is it permissible for government officials to impose such judgments where control of the mentally retarded is involved, even if it would be impermissible (or at least unwise) to restrict the actions of mentally competent adults on these grounds?

I don't know the answers here (nor am I looking that actively for the answers, since I don't write much on this subject). But I am pretty sure that these are interesting and difficult questions.

UPDATE: Reader Seth Tillman asks whether there may be an exception to these statutory rape laws when the person is married. Laws that restrict sex with underage people often do have an exception for married couples, though of course the marriage laws themselves have age thresholds (and sometimes, I believe, one threshold for marriage with the parent's consent and one for marriage without the parent's consent). Perhaps some states' restrictions on sex with the mentally retarded also have an exception for married couples; I hope to check into this in a few days, when I have a bit more time.

But even if this so, then this just highlights some of the other issues I mentioned. Requiring people to marry before they can have sex is a pretty serious burden on their autonomy -- a burden that we have in practice rejected for competent adults. Should the rule be different for the mentally retarded? Also, presumably people who lack the mental capacity to meaningfully agree to sex would often also lack the mental capacity to meaningfully agree to marriage -- to lifelong sexual fidelity (at least in the absence of divorce, but how does one decide whether a mentally retarded person really consents to seeking a divorce?), to lifelong emotional commitment, and so on. Does it make sense to require them to marry as a condition of having legally permitted, no-fear-of-the-prosecutor-locking-someone-up sex?

And of course there is one sort of sex that marriage won't make legal (except in Massachusetts): Sex between people of the same gender. If you oppose recognizing same-sex marriage but also oppose locking people up for same-sex sexual activity -- and I suspect that many tens of millions of Americans take that view -- then what do you do about mentally retarded adults who have sexual interest in people of the same sex? Do you just say "Sorry, it's not legal for people to have the sexual relationships with you that you want, though it's legal for heterosexual mentally retarded adults (since they can get married)?"

Jeff Jacoby has a good column on the subject in the Boston Globe:

. . . Consider how the illegal procedure was identified in news accounts of last week's [abortion law] ruling: . . .

National Public Radio: "Partial-birth abortion is a term used by opponents for what doctors call intact dilation and extraction."

Washington Post: "The ban on the procedure that critics call 'partial birth abortion' was already on hold temporarily as three courts heard legal challenges to it."

NBC: "A federal judge declared the so-called 'partial birth abortion' act unconstitutional on Tuesday." . . .

Why the circumlocutions? In journalism, short and clear is better than long and wordy; reporters generally don't have the space or time to reach for periphrastic phrasings when something more direct is available. Yet when it comes to partial-birth abortion, many of them suddenly feel compelled to distance themselves from a familiar and straightforward term. Why?

The answer most journalists would give, I imagine, is that they are just being accurate. "Partial-birth abortion" isn't a proper medical term, they would argue — the phrase was originally coined by prolife activists and it's appropriate to point out the political baggage it comes with.

Which is fair enough — but only if the same standard applies across the board. "Choice" and "the right to choose," the most common euphemisms for abortion, aren't medical terms either. They come straight out of the abortion-rights lexicon, which adopted them for their favorable connotation. . . .

For that matter, when was the last time a news report spotlighted the political provenance of any label *other* than "partial-birth abortion?" After all, it isn't only in the abortion wars that terminology can have partisan overtones. If it's a matter of good journalism to call attention to the fact that a phrase tends to favor those on one side of a controversial issue, shouldn't reporters be more fastidious about using terms like "campaign finance reform" or "the gun lobby?" Shouldn't they point out the implicit bias in referring to only some violent offenses as "hate crimes?"

When legislation to ban guns bearing certain cosmetic features is proposed, journalists should note that the measure would restrict "what opponents call 'assault weapons,' a term not used by weapons experts, who say it has no clear meaning." When reporting on the same-sex marriage controversy, they should observe that "what critics call 'homophobia' — a term promoted by gay and lesbian activists — is not recognized by medical authorities." . . .

There are often no convenient politically neutral labels for some things; advocates on all sides often try to convey their political message by embedding it in seemingly objective terminology; it can indeed be helpful for journalists to alert readers to this; and at the same time journalists can't do this for all terms, so it will have to select which terms it will flag this way.

But, as Jacoby points out, the journalists' selection decisions do tell you quite a bit about the journalists' political prejudices — and about how these prejudices can affect supposedly objective reporting.