Saturday, September 17, 2005

Gallup Poll--Roberts Nomination:


The poll, conducted Sept. 8-11, finds that 58% of Americans support the Senate confirming Roberts to serve as Chief Justice of the Supreme Court. Twenty-seven percent oppose his confirmation and 15% have no opinion.

Gallup has asked this question four times since President Bush nominated Roberts in late July, initially to replace retiring Justice Sandra Day O'Connor. At that time, 59% of Americans said the Senate should confirm Roberts. Then, in August, support for Roberts' confirmation decreased slightly, but still a slim majority of Americans (51% in early August and 52% in late August) supported his confirmation. Gallup polling conducted after Bush nominated Roberts to serve as chief justice upon the recent death of Chief Justice William Rehnquist -- but before the Senate confirmation hearings began this week -- finds support for his confirmation at 58%.

Katrina Blog:

Ballardvale Research has posted a list of "Best Practices" for the Top 30 College/University Crisis Management Responses to Hurricane Katrina.

Dartmouth, Duke, and MIT are singled out as exemplary in their response. Dartmouth established a Katrina blog for those displaced by the hurricane, and those trying to locate victims of the hurricane here. A blog is a useful way in a situation like this of centralizing dispersed information in an interactive way from individuals searching for one another when communications are sporadic (Ballardville calls it a "down and dirty" repsonse). MIT, interestingly and appropriately enough, created a message board for contributing engineering ideas for responding to the crisis.

What a difference from the old days when I was a kid and the tv would interrupt my afternoon cartoons do its "test of the emergency broadcasting system"!


I am told that the old emergency broadcasting signal is still around--I guess my ignorance is yet another way in which TiVo has changed the way in which I watch television.


Friday, September 16, 2005

More on RoeChild:

My recent RoeChild post reminded me of this item that I discovered about 12 years ago, and blogged about two years ago:

MEET XERXES XOE: Most people are familiar with habitual litigant John Doe; I'm told that he's the grandson of the noted author Anon. Richard Roe is pretty common, too. Paul and Paula Poe occasionally make an appearance, for instance in Poe v. Ullman, the 1961 case challenging the constitutionality of a ban on contraceptives. (That case was dismissed on procedural grounds, though the issue reappeared in the Court in the famous 1965 Griswold v. Connecticut case.)

Less well known, though, are their cousins, who are listed in the caption of Friedman v. Ferguson, 850 F.2d 689, 1988 WL 68404 (4th Cir.). Here's the whole thing:

Wilbur H. FRIEDMAN, Plaintiff-Appellant, v. Thomas B. FERGUSON, Director, Department of Animal Control, a state actor, in his official and individual capacities; Brett Boe; Carla Coe; Donna Doe; Frank Foe; Grace Goe; Harry Hoe; State Actors, Advisors To Defendant Ferguson, In Their Official and Individual Capacities (identities currently unknown); Marta Moe; Norma Noe; Paula Poe; Ralph Roe; Sammy Soe; Tommy Toe; Private Individuals Who Conspired With the Foregoing State Actors (identities currently unknown); Roger W. Galvin, Chairman, Animal Matters Hearing Board; Vince Voe; William Woe; Xerxes Xoe; Members of the Animal Matters Hearing Board, State Actors, In Their Official and Individual Capacities (identities currently unknown), Defendants-Appellees

As you may have guessed from this post's title, Xerxes Xoe is my favorite, though Tommy Toe and William Woe are pretty good, too. Keep them in mind for your next frivolous lawsuit. (For the serious ones, John Doe #1-50 tends to be seen as a titch more respectable.)

Related Posts (on one page):

  1. More on RoeChild:
  2. RoeChild-1 and RoeChild-2
An Odd Test:

According to the New York Times, Sen. Joe Biden (D-Del.) said:

My question is, Is Justice Roberts going to be a Scalia, a Rehnquist or maybe a Kennedy? If I think he's going to be a Justice Scalia, who I like personally very much, I vote no. If I think he's going to be a Kennedy, I vote yes. If I think he's going to be a Rehnquist, I probably vote yes because it won't change anything.

I'm not sure I understand how this reasoning works. I can see why Sen. Biden might vote for a moderate conservative like Kennedy rather than for a solid conservative like Scalia or Rehnquist. But given that Scalia and Rehnquist are very near each other on their bottom lines -- Scalia is a little to the right of Rehnquist on a few things, and Rehnquist is a little to the right of Scalia on a few other things, but on balance they are very close -- why would Biden vote for another Rehnquist but not for another Scalia?

I can imagine some law-and-order hard-liners who might prefer Rehnquist to Scalia, since Scalia has on some occasions taken a broader view of some criminal procedure rights than Rehnquist has, and in cases in which Scalia's vote counted; in nearly all the criminal procedure cases where Scalia has voted to the right of Rehnquist, Rehnquist was not the swing vote. But I have no reason to think that Sen. Biden is bothered by Scalia because Scalia is too soft on crime.

Or is this just a "speak no ill of the dead" convention at work here? Yet surely that would have been as well served by just avoiding the Rehnquist comparison. So I'm pretty puzzled by this.

Walter Williams on "Price Gouging":

The people's economist, Walter Williams, patiently explains once again why limits on "price gouging" are counterproductive (I noted Georgia's "crackdown" on price gouging a week or two ago):

The fallout from Hurricane Katrina has featured a lot of ignorance and demagoguery about prices. Let's look at some of it. One undeniable fact is that the hurricane disaster changed scarcity conditions. There are fewer stores, fewer units of housing, less gasoline and a shortage of many other goods and services used daily. Rising prices not only manifest these changed scarcity conditions, they help us cope, adjust and get us on the road to recovery.

Here's a which-is-better question for you. Suppose a hotel room rented for $79 a night prior to Hurricane Katrina's devastation. Based on that price, an evacuating family of four might rent two adjoining rooms. When they arrive at the hotel, they find the rooms rent for $200; they decide to make do with one room. In my book, that's wonderful. The family voluntarily opted to make a room available for another family who had to evacuate or whose home was destroyed. Demagogues will call this price-gouging, but I ask you, which is preferable: a room available at $200 or a room unavailable at $79? Rising prices get people to voluntarily economize on goods and services rendered scarcer by the disaster.

He also explains why the cost that the service stations paid when the bought the gasoline is simply irrelevant:

What about the house you might have bought for $50,000 in 1970 that you're selling today? If you charged me $250,000 for it, today's price for its replacement, as opposed to what you paid for it, are you guilty of price-gouging?

Related Posts (on one page):

  1. Walter Williams on "Price Gouging":
  2. Institutions and Katrina:
Priorities and Katrina:

Andrew Samwick, late of President Bush's Council of Economic Advisors, asks the right questions about President Bush's speech last night:

Where to begin?

I'll start by noting for the benefit of the folks working on the President's speeches that the sentence, "It's going to cost whatever it costs," gives the audience no confidence in the next statement, "We're going to be wise about the money we spend."

I was a fan of cutting other government spending before Katrina, and I am a fan of it now. I hope that the President is right that "we can handle it." The President will have to sort that out with the Republican leadership on the Hill, who seem to believe (quite counterfactually) that there is no more fat to trim. Leave that aside for the moment, and let's ask the following question:

If we can handle it now, why weren't we handling it before?

He adds:

If we have decided that rebuilding New Orleans to the tune of $200 billion is a national objective (and I haven't seen nearly enough debate on that subject in the Capitol), then we ought to fund it by reducing our consumption of everything else. The simplest way to do that would be to impose an income tax surcharge that funds the rebuilding over a given period.


Taxes may be bad, but deficits are surely worse. What's the explanation for why future generations should have to pay for this one, too?

One can raise legitimate questions in principle about whether this is the type of activity for which it is appropriate to engage in deficit spending. I think a case can be made that this may be, because of the "lumpiness" and unexpected nature of the liability, that may be appropriate to smooth over a period of time (like fighting a war or investing in capital projects).

But a larger point implied here seems like a sound one to me--one problem with running chronic deficits during ordinary times or on ordinary pork-barrel spending is that it makes it more difficult to justify additional deficits in times where deficit spending is appropriate (arguably such as fighting a war or rebuilding one of the nation's most important cities and ports). To paraphrase Spinal Tap, if you are already on "10" for deficit spending what do you do when you need that extra "push over the cliff"?

In related news, it is reported that Senator Coburn has already proposed paying for at least some of it through cuts from the highway bill:

Mr. Coburn said it was a "ludicrous claim" House Majority Leader Tom DeLay made earlier this week that he hasn't seen ways to offset the spending with cuts elsewhere.

In his weekly briefing, Mr. DeLay said it was appropriate to borrow money to pay for hurricane relief, and that the billions of dollars in transportation earmarks should be maintained.

"My answer to those that want to offset the spending is sure, bring me the offsets, I will be glad to do it, but no one has been able to come up with any yet," he said.

Mr. Coburn said he would "be happy to have that debate with Mr. DeLay."

He said he has identified $74 billion in cutting room and that one place to start is the $315 million the highway bill spent for a bridge in Alaska that will reach a community of several dozen people, "who have a wonderful ferry system right now."

Government Enforces Solomon Amendment:

Inside Higher Ed reports that New York Law School has been "placed on a list of higher education institutions that are iineligible for contracts and grants by reason of a determination by the Secretary of Defense that the institution prohibits or in effect prevents military recruiter access to the campus, students on campus or student directory information.'" According to the story, a Pentagon spokeswoman has also said that "two other law schools — Vermont Law School and William Mitchell College of Law, in St. Paul, Minn. — were also in violation of the Solomon amendment and faced the loss of federal funds." Yale Law School has also excluded military recruiters from campus but is protected by a court order.

HT: Paul Caron (twice in one day!).

Update: On further reflection, I believe each of these three law schools are stand alone law schools unattached to larger universities (unless I'm mistaken). As a result, the Government's action is narrowly focused on law schools and does not raise the issue of withholding funding for an entire university as a result of the law school's decisions. The article suggests that perhaps they were being picked-on because they were "little guys," but this may explain the pattern of those schools affected. (HT to Our Commenters for first raising this question).


Doug Lederman, the author of the Insider Higher Ed piece elaborates on his article and some of our Comments on our Comment Board here.


We'll be switching to Pajamas Media for advertising around October 1, but in the meantime you still have a chance to get a couple of weeks' worth of relatively inexpensive advertising, should you be so inclined. Just go here to buy a premium ad or here to buy a standard ad.

We get, according to blogads, traffic of either 158,000 or 177,000 per week; for some reason, it gives us different numbers for the premium and the standard options -- I have no idea why -- but in any event that's quite a few eyeballs.

AALS Moves 2006 Annual Meeting from New Orleans:

Paul Caron reports.

A Coming Showdown over Justice O'Connor's Replacement?

Lawprofs Larry Solum and Rick Hasen opine on the subject.

A Fascinating History of Roe v. Wade in the Supreme Court,

from David Savage in the L.A. Times. Thanks to reader John Judge for the pointer.

Online Symposium Today on the Geneva Convention and U.S. Law,

in the context of the Hamdan case: The NYU Journal of Law & Liberty -- a generally pretty libertarian outfit -- is running it today; the panelists are lawprofs Derek Jinks, Julian Ku, David Sloss, and Glenn Reynolds (InstaPundit's Clark Kent).

My one small addition to the debate: I recommend you tell your browser to display the text in a larger font.

"Will Science trump Politics in Resolving Abortion Debate?"

Wendy Mcelroy asks the question in a thought-provoking column:

For better or worse, new reproductive technologies are redefining the ground rules of reproduction. (And, no, the force of law can not hold back scientific 'progress,' as authorities have discovered repeatedly since Galileo's day.)

New reproductive technologies may also redefine the politics surrounding reproduction, including the issue of abortion. I welcome the prospect. It is difficult to believe that science could do a worse job with the issue than courts and fanatic rhetoric. At the very least, science may offer new methods of ending a pregnancy without destroying an embryo or fetus.


Science will not make the abortion debate go away. The conflict is too deep and involves such fundamental questions of ethics and rights as, "What is a human life?" "Can two 'human beings' — a fetus and the pregnant woman — claim control over the same body?" and "When does an individual with rights come into existence?" These questions are beyond the scope of science.

Nevertheless, technology can impact the debate in at least two ways. First, it can explore ways to end a pregnancy without destroying the fetus, which may then be sustained; if such procedures became accessible and inexpensive (or financed by adoptive 'parents'), then abortion rates would likely decline…and sharply.

Second, it may offer "an out" for activists on both sides who sincerely wish to resolve the debate and not merely scream at each other at ever increasing shrillness.

Many pro-choice women, like me, have been deeply disturbed by ultrasound scan photos that show fetuses, at earlier than once thought periods of gestation, sucking their thumbs, appearing to smile and otherwise resembling a full-term baby. Many of us would welcome alternate procedures and forms of ectogenesis as long as they remained choices. And as long as both parental rights and parental responsibilities could be relinquished.

Disconnect Part 3.

Lots of the coments have attacked various notions of originalism and argued for the inevitable influence of a Justice's policy views on outcomes in at least close cases. A couple of observations.

First, I do think that a theory of originalism focused on the public meaning of speific words at the time they were used is indeed the correct (indeed, the sole correct) approach to interpreting written instruments, whether they be constitutions, statutes, or contracts. I think that conclusion flows inevitably from the bare fact that we have selected a written instrument to convey and enshrine our rights and obligations.

Second, while I think that a basic historical/textual analysis of the written instrument indeed resolves most of the questions that arise, I have already noted that such an approach does not resolve all close cases. Under those cases I have noted that we have canons (note the proper spelling this time -- I am educable, even if a naturally poor speller) of construction that provide an answer on how to resolve the ambiguity. (The cannons will have to be saved for those instances in which the canons do not adequately resolve an issue that is extremely contentious and cannot subsequently be resolved by the political branches.) I recognize that such canons do not have the inherent certainty or even "correctness" of textual rules, but at any given time they generally have the force of precedent and hence are correct within the particular legal/temporal context in which a given case is decided. Can those canons change over time to lead to different results in ambiguous cases? Of course, but even such changes are mediated by other structural rules such as stare decisis and hence one can ascertain whether a change in canons is "correct" based on the legitimacy of the process and reasoning through which the change is made.

Whatever the canon is at any given time, however, I would argue that its uniform application to all cases is the measure of a jurist's fidelity to the law and to the role of the courts. Whether we apply a liberty-favoring canon such as suggested by Prof. Barnett, or a deferential canon such as not overruling the political branches unless they violate some "clear" constituional command, we should apply them consistently regardless of whose ox is being gored. (I think that answers the commentator who asked whether the consequences of a decision influenced its correctness: The answer is no, the legal correctness of a decision is indeed independant of its effects. That is true of Plessy, Brown, and any other sacred cow one cares to raise on either the right or the left. I am not saying Plessy or Brown was right or wrong legally, just that the answer to the question has nothing to do with whether the results were universally acclaimed or condemned.) If we do not like the result, do not blame it on the jurists, blame it on the law and change the law, by constitutional amendment if need be. The complaint that amending the Constitution is difficult moves me very little. If the consequences of a bad decision are so overwhelming as to get everyone into a lather, you would think that would be sufficient to motivate folks to do the hard work of amending the Constitution. If the real problem is that the public is split on the right answer, though equally vehement on both sides, that strikes me as precisely the sort of situation in which an amendment would be inappropriate and we need to stick to the earlier rules until a sufficient consensus builds for a new rule.

Third, I am perfectly willing to acknowledge that a jurist's policy preferences might influence which canons of construction he or she chooses to endorse and hence to that extent it is relevant. But I think that most canons of construction tend to be very context-specific in terms of whether they will indeed promote or retard a particular policy bent, and hence the influence of policy preferences on canon selection is limited at best. A pro-liberty canon that curtails government power might be pro or anti "rights" depending on what a given piece of legislation says. Where the political branches are creating new rights such as in the civil rights context, such a cannon will work to the detriment of the folks being given new rights and to the benefit of folks being subject to new obligations. Where the law is restricting rights or expanding government intrusion into individual lives, the consequences will be the opposite. While a jurist might try to mak a list of how many prospective results would be favorable or disfavorable to his or her individual policy preferences, that exercise is fraught with uncertainty and not likely to give a policy-concerned jurist much to go on.

Again, my primary criteria is that the canon be applied consistently regardless of substantive area or result. If a jurist applies the canon only when the result is favorable and ignores it other times, then that jurist abandons the judicial role and is rightly subject to criticism. But I think Judge Roberts has made a strong case that he will be ever-vigilant in seeking equal application of the law, outcomes be damned. Folks may not believe him, but he seems credible to me, and I think his answers are a full and complete response to the attempts to probe his policy preferences. (I also disagree with commentators who say that Scalia and Thomas only use their judicial approaches as a mask for policy choice. There are plenty of good examples of them voting contrary to their presumed and sometimes expressed policy preferences. The notion that those are only in areas not important to them is palpably wrong, and I have not seen persuasive examples condemning their consistency in cases where their reults were presumably more to their liking.)

To the extent a jurist does not take the approach I endorse, but instead favors a living or evolving Constitution and the abstract search for new rights (or new powers for the government), then I agree that policy preferences are more likely to influence that jurist's results and hence an inquiry into those preferences is reasonable and likely necessary. And because so many Justices in modern times have taken that approach, Prof. Cross's statistical evidence of ideological bias is hardly surprising, but somewhat misses the point.

If you believe Judge Roberts regarding his jurisprudential approach, further questioning of his policy views is of little or no benefit. Saying that others in the past have used their policy preferences to skew their judicial results is hardly a basis for demanding that Judge Roberts, who professes a different judicial philosophy, answer questions better directed at those others. And I think such questions, by politicizing the role of a Justice and by effectively endorsing such a policy-driven approach, are very destructive. Indeed, it is the invitation to politicizing the decisions of the Court that stands as an indictment of the more open-ended jurisprudences of some justices and argues in favor of a more constrained jurisprudence such as I have described.

If you do not believe Judge Roberts regarding his judicial philosophy, then I suppose that is reason enough to vote against him. But I am not willing to impute such dishonesty to him, and I do not think it reasonable for others to do so.

Washington Post on Vioxx Litigation:

An excellent editorial in the Post, which includes this gem:

Unfortunately for Merck, scientific facts didn't play much of a role in the first Vioxx trial, which ended on Aug. 19. The Texas jury in that case awarded $253.4 million to the widow of a man who died of a heart attack triggered by arrhythmia, which is not a condition Vioxx has been proven to cause. The jury, declaring that it wished to "send a message" to Merck, decided to make an enormous symbolic award anyway. Besides, said one juror afterward, the medical evidence was confusing: "We didn't know what the heck they were talking about."

Unfortunately, no matter how many quotes like this one reads, nor no matter how obvious it is that complicated scientific evidence presented orally in an adversarial system will inevitably be beyond the comprehension of many lay jurors, it won't convince many academics that perhaps jury trials are not a good way to resolve medical causation issues (the breast implant litigation being a fine example). [For a well-written, but ultimately unpersuasive apologia for juries in this context, see this article by Vidmar and Diamond.] For that matter, despite the protests from skeptics such as myself, many academic lawyers seem intent on actually expanding the power of juries to wreak havoc with the pharmaceutical industry.

Roberts on the Interstate Commerce Power:

The David Hardy analysis of Judge Robert's answers on the Second Amendment, which Eugene noted, do bode well for Roberts' attitude towards individual rights. However, his answers on the interstate commerce power, which for right to arms advocates is a very important secondary issue (comparable in importance to the Fourth Amendment, in terms of its practical effect on Second Amendment rights) are very disappointing. On Wednesday he characterized Lopez as merely requiring that Congress attach some jurisdictional hook, in order to prohibit the entirely local possession of an object which decades ago might have been sold in Interstate Commerce. This might be called "the herpes theory" of Interstate Commerce; once something crosses state lines, it remains forever after an object of Interstate Commerce. I agree with the federal district judge who wrote:

To say . . . that because something once traveled interstate it remains in interstate commerce after coming to rest in a given state, is sheer sophistry. This Court, at one time, owned a 1932 Ford which was manufactured in Detroit in the year 1931 and transported to the state of Tennessee. It remained in Tennessee thereafter. Now if this car were hijacked today, some sixty years later, is it still in interstate commerce?
United States v. Cortner, 834 F. Supp. 242, 243 (M.D. Tenn. 1993), rev'd sub nom. United States v. Osteen, 30 F.3d 135 (6th Cir. 1994).

Today, Judge Roberts assured Senator Schumer that Congress has the power under the Interstate Commerce clause to ban the intra-state cloning of a toad. Glenn Reynolds and I argue to the contrary, and suggest that such a view destroys Lopez and Morrison. Compared to Justice Rehnquist, Justice Roberts appear to have similar views on the Second Amendment (good), on the Fourth Amendment (bad), and to be a step backwards on Interstate Commerce. Given that the Rehnquist Court's timid steps towards restoring the Interstate Commerce to its textual limits (rather than allowing it to be a power to regulate everything) were only decided by 5-4 votes, the replacement of Rehnquist with Roberts may end any efforts to change Congress's anti-constitutional presumption that it possess limitless powers over every activity in the United States.


Thursday, September 15, 2005

Judge Roberts on the Second Amendment:

David Hardy has the quote and a quick analysis.

Disconnect Part 2.

I see that in the hearings Charles Fried makes a point similar to mine. August company for me, less so for him. The professors complaining about Judge Roberts continue to fall into the same trap. The notion that the courts should be a beacon for some particular substantive agenda rather than simply for scrupulous adherence to the law and the Constitution is troubling, to say the least.

Regarding one of the comments suggesting that I assume there are correct legal answers, I would say that I do not assume it, I assert it as correct and am happy to defend that assertion as to most cases. Even as to the particularly difficult cases that cannot be answered by text, history, and other relatively concrete factors, there are still numerous rules of thumb or cannons of construction that guide a judge in resolving such uncertainty. To the extent such cannons are part of the established precedents, they too help reach the "correct" answer even absent certainty from text or history.

If what people are concerned about is Judge Roberts's tendencies in areas where there are still ambiguities after faithful application of text, history, and precedent, then I think he has laid that out pretty well. He would be modest and respectful of the authority of the other branches and in that respect is likely to uphold government action in such cases, for good or ill. A narrow interpretation of constitutional limits on federal power thus should please liberals who favor expansive federal power. But that same reserve might well mean that he will not offer exansive interetations of other aspect of the Constitution as well — those restricting government power relative to individual liberties. Once again, that is the same modest view, but with different potential policy outcomes. Either way, the tendency is not based on substantive social policy considerations, but on judicial considerations and balance-of-power concerns.

It is the social policy that critics and Senators keep harping on, not the judicial policy issues that might well have an influence on the "correct" answer. As to the judicial policy questions, if you want a justice who will be respectful and deferential to the political branches you cannot also insist on a judge who will be a champion of individuals asserting their potential, yet ambiguous, constitutional rights against those very political branches. The fight over an aggressive vesus a deferential approach to enforcing the Constitution is a valuable one to have and one that Roberts has indeed weighed in on. (I might well take a different view on that issue than he does, but his approach is certainly the paradigm of judicial restraint, which seems to get lip service from both sides.) The question of whether he will impose his social policy preferences on areas of ambiguity strikes me as precisely the wrong view of the courts and I, for one, would hope that jurists would studiously resist such an approach. Judge Roberts has been definitive about that point as well.

Who Are You?

So who the heck are you folks? Are you mostly lawyers? Techies? Professional procrastinators like us? Dead Roman males? Neighbors who are trying to ruin our opium-inspired works of genius?

Yeah, yeah, I know the comments aren't going to be remotely representative; yeah, yeah, I know you could be lying; but if you'd like, drop us some pithy lines about who you are and why you're here. Special bonus if you are in strange lines of business, strange places, or dogs.

Nice Gag from Judge Roberts:

From the First Amendment Center, and the AP:

Roberts said yesterday he had no "settled view" on whether Supreme Court proceedings should be televised.

Asked by Sen. Charles Grassley, R-Iowa, whether he would allow cameras in the Supreme Court courtroom or bar them, as did the late Chief Justice William Rehnquist, Roberts referred to former Tennessee senator-turned-actor Fred Thompson, who has been shepherding him through the nomination process.

"My new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of," Roberts said, eliciting laughter.

Another Puzzling Bushism on Slate:


"My thoughts are, we're going to get somebody who knows what they're talking about when it comes to rebuilding cities." -- On how the rebuilding of New Orleans might commence, Biloxi, Miss., Sept. 2, 2005

What's odd, funny, mangled, or at all Bushism-worthy about this quote? Bush was asked how New Orleans should be rebuilt in the long term. That's a difficult and technical question, and one that's not easy to answer right now, especially when one is the President rather than a professional urban planner. So the President gave a perfectly sensible answer, and said that he'll figure out what the experts say. Here's the context (to Slate's credit, they now provide a link to the video, but here I quote the official transcript):

Q Mr. President, I realize the first priority is, obviously, saving lives. But let me ask you about long-term planning in New Orleans. There are some who are starting to say that since we're going to be spending billions in tax dollars to rebuild that great city, that we might want to think about building it in such a way where it's not below sea level again, whether it's somehow moved around or relocated or moved up. What are your thoughts on that?

THE PRESIDENT: My thoughts are, we're going to get somebody who knows what they're talking about when it comes to rebuilding cities. I'm going to delegate. I'm going to call upon the best experts, starting with the people of New Orleans, and get opinions as we work with the local folks. We're going to help people rebuild, Stretch. That's what we're going to do. And we're going to listen to people who know what they're doing. . . .

Why is this worth mockery or condemnation (presumably the main theme of Bushisms, as the column's compiler himself seems to suggest)?

Disconnect on the Role of the Courts.

I am struck, watching the hearings, at the complete disconnect between the criticisms of many of those opposing Judge Roberts and a cogent view of the role of the courts. It seems that many of the criticisms are policy based — x or y rulings would lead to bad RESULTS — and make no reference whatsoever regarding whether such results are in fact the correct interpretation of the law (or the Constitution). Judge Roberts's repeated point was that he was committed to the law, and not to a political agenda, yet most of the criticism seems to be that he lacks a particular favored agenda on things like civil rights, the environment, etc. But certainly the critics cannot have it both ways, pissing and moaning that he might reject a substantive conclusion that they favor, yet demand that he not bring his personal views into the judging process. Unless they think that he will misinterpret the law in a way that follows his allegedly retrograde views and opposes their more "enlightened" views, it seems that their criticism should be about the laws as written, or the Constitution itself, and not about the jurist who interprets them faithfully. Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office. Judge Roberts has naturally refused to be goaded into such silliness. The fact that folks like Kennedy and Schumer and Durbin keep settting that up as the test for their willingness to support him is appalling and speaks to the bankruptcy of their philosophies of government. (Not to be biased, several Republicans also seem to fall into the same exact trap regarding abortion, flag-burning, and the pledge of allegiance. They seem to think that the fact that they do not LIKE the results of various cases has something to do with whether they were rightly decided under the laws and the Constitution, and seem to think that their strong emotions on such issues should have some influence on Judge Roberts's future rulings. They are, of course, mistaken and equally suspect in their philosophies of government.)

In any event, I think Roberts comes out of this looking like the consumate jurist who knows precisely where his duties and loyalties must lie — to the law and the Constitution. Most of his critics come off looking like they are pandering to folks who don't know about or don't care about the proper functioning of the courts, and most of the Senators just come off looking ridiculous. It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children. If they had the slightest inclination to follow the Constitution on their own accord, and to take seriously the limitations on their powers, they would not need to be rebuked quite so often and perhaps when the Court was forced to overturn some piece of legislation they would get more slack for an honest disagreement or mistake rather than whacked on the wrist for making a power grab.

Related Posts (on one page):

  1. Disconnect Part 3.
  2. Disconnect Part 2.
  3. Disconnect on the Role of the Courts.
Hotline's Blogometer Has a Brief Interview

with me.

More on the Pledge Case,

from Howard Bashman. Technical but very interesting analysis of what precedential effect the substantive part of the Ninth Circuit decision -- which was reversed on procedural grounds -- should have.

Barros Testimony on Responding to Kelo:

Professor Ben Barros of Widener Law School has posted his testimony to the Pennsylvania House of Representatives State Government Committee suggesting possible legislative responses to Kelo. He has some interesting and practical ideas. It is available here. He suggests that the legislature enact special protections for takings of people's homes for this purpose, a point I might rephrase to say that the likelihood of subjective value is greater for homes, but I think the intuition is similar.

John Roberts Makes Shadow Puppets for the Senate Judiciary Committee:

Evidence at Purr Se.

Wicked, and Not in a Good Way:

Michael Fumento posts a photo taken by Ron Rotunda, here.


Quite a remarkable website from B.U. professor Richard Landes, showing Palestinian manipulation of the media with staged scenes, and the cooperation of Palestinian cameramen working for Western news agencies.

[Puzzleblogger Kevan Choset, September 15, 2005 at 11:32am] Trackbacks
Another Presidential Order:

In what order have I arranged these names?

John F. Kennedy, Dwight D. Eisenhower, Theodore Roosevelt, Abraham Lincoln, George Washington, Harry S. Truman, Ronald Reagan, George H.W. Bush.

Pledging Allegiance to the "Eternal Separation of Church and State."--

After reading some of the online comments on the Pledge of Allegiance case this week, I offer some casual thoughts on the words “under God” in the Pledge. I am not analyzing recent Court jurisprudence, and am addressing only the establishment clause issue (which is how Newdow was previously presented to the Supreme Court), not any free exercise or free speech claims:

1. Although I am a fervent atheist, I wouldn't call my belief a religion.

2. The words "under God" have no business being in the Pledge of Allegiance, no matter how religious the country currently is or was.

3. I wish that the Senate didn’t have a chaplain, but this has been held constitutional, as have military chaplains.

4. If the Supreme Court were not so confused, the Pledge of Allegiance case would be an easy one on establishment grounds. First, it does not involve a statute of Congress respecting the establishment of a state religion. Second, even if one were to extend this part of the first amendment to the state of California’s statutes, still California has not enacted a state religion, nor has it passed a statute respecting the establishment of religion.

5. One shouldn’t confuse what should or shouldn't be in the Pledge with the question whether mandating the Pledge enacts a state religion. It obviously doesn’t. Therefore, the establishment clause should not prohibit the words "under God" in the pledge. Again, this is not an analysis of how the Court usually approaches establishment clause cases.

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the "eternal separation of Church and State." In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

Constitution Day at GMU:

George Mason is proud to celebrate the newly-mandated Constitution Day obligations in the appropriate manner by asking whether said Constitution Day obligations are actually constitutional:

The Byrd Rider to this year's Omnibus Appropriations Bill requires schools that receive federal funding -- nearly all of them -- to have ceremonies each year marking Constitution Day.

Join Foundation Professor of Law Ronald Rotunda and Patrick Henry Professor of Law Nelson Lund for as they examine whether it is constitutional for Congress to use its spending power to reach down into the curriculum and culture of every school in the country and dictate what shall be taught, celebrated, or memorialized -- and when. The discussion will be moderated by Paul Mirengoff of Akin, Gump, Strauss, Hauer & Feld and the Power Line blog.

Is this is what Senator Byrd had in mind in mandating Constitution Day teaching?

Eviction of Kelo Homeowners:

Notwithstanding a promise to abide by a moratorium on taking the homes of the individual homeowners in Kelo, the New London Development Corp. has issued eviction notices to them and demanded the payment of rent. BizzyBlog has the story (with a bit of pungent commentary too). More here and here.

The CEO of the development agency contends that the communications are not actually eviction notices, but does not provide a different explanation for what they are. The developers also argue that the moratorium only applies to new takings, not to these properties for which the development corp. already holds title.

Dave Kopel bleg for pro-freedom translators:

Folks who have visited my website recently may have noticed that the site now offers content (either directly, or via links) in Japanese, French, Italian, Spanish, German, Portuguese, Dutch, Swedish, Danish, Czech, Hungarian, and Polish. To further assist the many millions of freedom activists all over the world who do not speak English, I am soliciting volunteer translators in any and all languages.

At the easier level, translators can simply use their reading skills to help me compile links to add to my website--such as list of the best websites in a particular language which defend the right to arms and other civil liberties. At the more challenging level, translators can work with me to produce full-text translations of my English-language articles (presumably the shorter ones)--picking articles which are of particular interest to the translator and to the relevant language community.

Pay is nil, but article translators will be credited. If you would like to help, please contact me via the e-mail link at the bottom of the left column on my home page.

BTW, if you're interested in Saints and the Virgin Mary, I also write about them, and would be likewise be grateful for translators.

Wednesday, September 14, 2005

A Strange Protest:

The United Food and Commercial Workers wants to call public attention to the crying scandal of a Wal-Mart grocery in Henderson, Nevada's starting workers at $6.75 an hour. So what does it do? It hires temp workers at $6/hour with no benefits to walk a picket line in 104-degree heat in front of the air-conditioned store. Picketer Sal Rivera, as it happens, used to work at Wal-Mart, where he made $8.63 an hour, a good deal above what the union paid him to picket; he'd consider re-applying.

Via Walter Olson at

The Pledge Decision and Confirmation Politics:

InstaPundit's reaction to the new Pledge decision sounds right to me politically -- the decision helps get conservative Justices confirmed. It helps Roberts, and it will also probably help the next nominee. Whatever you think of the merits (remember, I'm talking here about the politics, not the merits), the public seems solidly against courts' striking down the saying of the "under God" Pledge in public schools. Here's what a poll following the Ninth Circuit's initial decision yielded:

ABC News/Washington Post Poll. June 26-30, 2002. N=1,024 adults nationwide. MoE ± 3. Fieldwork by TNS Intersearch.

"The Pledge of Allegiance says the United States is one nation 'under God.' A federal court in California has ruled that the Pledge cannot be recited in public schools because this phrase violates the constitutional separation of church and state. Do you support or oppose this court ruling?" . . .

Support 14[%]
Oppose 84[%]
No opinion 2[%]

"Do you think the phrase 'under God' [rotate:] should remain in the Pledge of Allegiance OR should be removed from the Pledge of Allegiance?" . . .

Should remain 89[%]
Should be removed 10[%]
No opinion 1[%]

This seems to be the one issue on which the public is most solidly aligned with the solid the Court's conservatives, not just the moderate conservatives -- and highlighting this issue in the public's mind thus helps strengthen the case for conservative nominees.

(Justice O'Connor did opine in the Supreme Court's Newdow decision that the Pledge was indeed constitutional. But her votes and Justice Kennedy's votes in past cases helped cast doubt on the Pledge's constitutionality; and the votes of Chief Justice Rehnquist and Justices Scalia and Thomas have provided the most solid protection for this sort of governmental religious speech.)

Related Posts (on one page):

  1. More on the Pledge Case,
  2. The Pledge Decision and Confirmation Politics:
Are You a Family Lawyer?

If so, can you advise me about how I can best inform family lawyers about the arguments in my Parent-Child Speech and Child Custody Speech Restrictions?

I think that lots of family lawyers could find the arguments quite useful -- I can't promise that they'll win with them in court, but they might win with them, so the arguments will generally be worth making. (If you need a two-sentence summary of the article, it's "Palmore v. Sidoti meets the First Amendment: Why courts generally shouldn't consider parents' speech, religious or not, any more than they can consider parents' and stepparents' race.")

But family lawyers don't usually read law reviews, I suspect. What's the best way for me to get the arguments to them? At a conference? By publishing an article in a practitioner newsletter? By getting treatise writers or practice guide writers to cite them? Let me know, please, and the more detailed, the better. Just post a comment, or e-mail me at volokh at . Thanks!

Precedential Effect of Reversed Decisions:

A federal district court in Sacramento has just held that reciting the Pledge of Allegiance in K-12 public school classes is unconstitutional, because it psychologically coerces students to say the "under God" and thus violates the Establishment Clause. Students aren't legally required to say any of the pledge, but the theory, which has pretty substantial foundations in the Supreme Court's precedents, is that they are in any event psychologically coerced, since omitting the "under God" will expose them to opprobrium from their peers.

Interestingly, the court held that this is so because of the binding effect of the Ninth Circuit decision a couple of years ago, the same one that was reversed by the Supreme Court. Recall that the Supreme Court reversed the Ninth Circuit decision on procedural grounds — because Michael Newdow didn't have custody of his daughter, the one who was supposedly being coerced by the Pledge recitation, the Court held that he wasn't entitled to sue. The Court, however, reversed the decision rather than vacating it, and the district court here held that "A decision that is reversed on other grounds may still have precedential value, whereas a vacated decision has no precedential authority." See Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) ("A decision may be reversed on other grounds, but a decision that has been vacated has no precedential authority whatsoever."); Pines Land Co. v. U.S., 274 F.3d 881, 894 n.57 (5th Cir. 2001) ("This case illustrates the important difference between our treatment of a panel opinion after vacatur by the Supreme Court and our treatment when a judgment is reversed on other grounds. While our prior opinion in Leiter Minerals II did not bind the Little Lake panel because it was vacated, the opinion in Little Lake binds us because only the judgment was reversed on other grounds.").

This may sometimes be a plausible distinction: For instance, if a court of appeals makes two separate legal rulings in one decision, and the Supreme Court reverses the court as to one, there really hasn't been a reversal of the second legal ruling, and it may well still be properly seen as precedent.

But here the first ruling (about Newdow's standing) that the Court reversed had to do with whether the court of appeals should even have heard the case and made the second ruling (about the constitutionality of the Pledge recitation). The Court essentially ruled that the Ninth Circuit shouldn't have reached the substantive question of the Pledge's constitutionality. I would therefore think that the Ninth Circuit's substantive decision would therefore lose any precedential value it had, since in the Court's view this value was essentially ill-gotten.

Judge Karlton, though, took a different view. Now there'll almost certainly be an appeal, and a new Ninth Circuit panel will have to decide for itself whether it's bound by the prior panel's decision. I predict that the new panel will say that it's not bound (and thus disagree with Judge Karlton on this score). But, hey, I'd have predicted the same about Judge Karlton's decision, and I'd have been wrong. So we'll see what happens.

RoeChild-1 and RoeChild-2

are two of the anonymous plaintiffs in the latest Pledge of Allegiance case. Is it just me, or does RoeChild have a vaguely '70s California crunchy granola softfuzzyrock feel to it? I could see John Denver or James Taylor or maybe Cat Stevens singing about RoeChild.

It helps that RoeChild-1 is a pantheist, though it would have been even better if she were a Pan-theist. And on top of that, Daddy Roe's objection — which is perfectly consistent with the Court's Establishment Clause caselaw — is that he "has been made to feel like a 'political outsider'" by the recitation of the Pledge. Feelings, nothing more than feeeeeelings . . . .

On the other hand, RoeChild-1 and RoeChild-2 are more Brave-New-Worldy, maybe with shades of THX 1138, no?

Related Posts (on one page):

  1. More on RoeChild:
  2. RoeChild-1 and RoeChild-2
An Unusual Question:

I've just accepted, with great pleasure, the NYU Law Review's offer to publish my Parent-Child Speech and Child Custody Speech Restrictions article; but fortunately I still have plenty of time to improve the piece.

To that end, let me ask our readers -- and in particular a very small sliver of our readers -- an unusual question: If you were one of the articles editors who considered the article, do you have any suggestions for improvement? Can you point to parts that you thought were unpersuasive, poorly written, or unnecessary? Were there some counterarguments that you think I could have dealt with better? Can you pass along any objections that you may have heard from your colleagues?

If some readers saw certain flaws in the article, I'm sure that other readers will see the same flaws. Right now I can still correct those flaws, or respond to the counterarguments I need to respond to; better do that now, before the article is in print.

I should stress that my only goal here is to improve the article. A couple of journals gave me offers; another expressed interest; about half a dozen rejected it; others didn't respond; that's entirely par for the course -- if you folks didn't like the article, I can perfectly well understand that. Most of my articles, and I'd wager most of other law professors' articles, get rejected by lots of places even if they get accepted by other comparably ranked places. That's just fine. I'd simply like to take advantage of people's criticisms now, when it can still do the article some good.

Please feel free to respond anonymously; please also feel free to respond either in the comments or by e-mail (volokh at Thanks in advance for your help!

What Tony Blankley Doesn't Tell You:

Tony Blankley, the editorial page editor of the Washington Times, has an op-ed defending (and urging) various wartime restrictions. Some of what he omits, though, is even more striking than some of what he includes.

For instance, Blankley praises a Court decision that "upheld the school expulsions and parental prosecutions" of "[m]embers of the Jehovah's Witnesses were prosecuted during World War II for refusing to let their children recite the Pledge of Allegiance." He goes on to praise this approach:

In those days, when Supreme Court justices -- liberal, moderate, and conservative -- sat down to write opinions, they knew their words and findings mattered.

Wrongly decided cases wouldn't merely expose the justices to rude comments in fashionable newspapers and magazines. Wrongly decided cases might expose the United States to disunity, sabotage, revolution or conquest.

Under such circumstances, the justices were more than prepared to let Congress give the president of the United States broad powers to defend our country. And they were unlikely to interfere with the president carrying out such powers or to second-guess the military's decisions.

The court would draw lines and preserve the essence of our freedoms. But the justices were practical men.

They understood that the broadest enforcement of every last theoretical right and privilege might well be purchased at the price of losing our most basic right: the right to effectively defend ourselves.

An interesting argument -- but might it be relevant that three years later, when the U.S. was actually fighting World War II (as Blankley points out, the decision he praises came in 1940), the Supreme Court held that the Jehovah's Witnesses did have the right to "refus[e] to let their children recite the Pledge of Allegiance"? The first decision essentially held that the Witnesses couldn't win under the Free Exercise Clause, on the theory that as religious objectors they were entitled to an exemption from a generally applicable pledge requirement. The second decision, though, held that the Witnesses -- and anyone else -- should win under the Free Speech Clause, on the theory that everyone, religious or not, was entitled to an exemption from the Pledge. If one is going to call on one Supreme Court decision as support for one's position, wouldn't it have been good to point out that another decision, three years later, rejected the very sort of argument that one is making?

Likewise, Blankley argues that "Just as their generals and admirals made no compromise to the imperative of total victory on the battlefield, so British and American political leaders, courts and popular opinion let the requirements for victory define the powers of their government on the home front," and gives as one favorable example that "Attorney General Robert Jackson described the targets and responsibility of the FBI's domestic intelligence activities as involving 'steady surveillance over individuals and groups within the United States ... which [are] ready to give assistance or encouragement in any form to invading or opposing ideologies.'" Yet oddly enough, Blankley doesn't mention that the very same Jackson, once elevated to the Court, wrote a majority decision striking down the compulsory Pledge of Allegiance, and memorably dissented from the Court's upholding the ethnicity-based internment that Blankley praises.

Blankley also refers to Justice Frankfurter as a "liberal icon," which Frankfurter probably was in his defense of the New Deal. But on free speech issues, Frankfurter took a relatively restrictive view -- certainly not the view held by the liberals on the Court in that era -- not only on national security questions but also on issues quite unrelated to national security.

Blankley writes, as to Justice Frankfurter's observation that "the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities,"

This is particularly applicable to the situation we face today. Radical Islamists are demanding to be covered by Shariah -- laws compiled over a thousand years of Muslim jurisprudence, based on the Koran and its commentaries -- rather than by the laws of the United States, Britain, Germany or the other non-Muslim nations in which the radical Islamists live.

Yet it's well-settled under U.S. law that radical Islamists have no entitled whatever to "be covered by Shariah . . . rather than by the laws of the United States." At most, they might be entitled to rather modest statutorily defined exemptions from generally applicable laws and work rules -- for instance, to exemptions from police regulations that require officers to be clean-shaven or to modest breaks on Fridays to be able to pray, just as Jews and Seventh-Day Adventists are sometimes entitled to take the Sabbath off, and yarmulkeh-wearing Jews and turban-wearing Sikhs are often entitled to exemptions from work rules that ban employees from wearing headgear. (People who agree to have their civil disputes arbitrated by religious tribunals, whether Muslim, Jewish, or Christian, are generally allowed to have such agreements stand, but that is a well-settled principle of respect for contract rights, and probably not what people think of when they read about radicals' demands to be covered by religious law rather than secular law.) Again, might it have been worth acknowledging that, if we want to resist radical Islamists' demand to be covered by Shariah, there's little need to borrow World War II attitudes or jurisprudence -- that even the supposedly lax modern regime does perfectly fine at resisting calls for such legal separatism?

There are quite plausible arguments for restrictions on certain civil liberties in the name of national security. We have long recognized some such restraints, and may well need more in some areas (or fewer in others). And history may well be helpful in understanding which restraints have proven justified, and which have proven to be unnecessary or unduly dangerous.

But if you're going to argue based on history, it seems to me better to give a balanced account of that history.

More on Roger Baldwin (the ACLU's Founding Director):

Allen Asch, in the comments to a recent post, continues to express doubt that Baldwin was a communist in the 1930s. Since I happen to have the data handy, and since Mr. Asch had earlier expressed skepticism about a Baldwin quote on the topic that had been floating around on the Internet -- skepticism that is eminently sound, though in this particular instance proves to be misplaced -- I thought I'd post it.

To begin with, Baldwin had always denied being a member of the Communist Party, and I've seen no evidence to the contrary. He apparently didn't get along well with the Party, which he rightly saw as authoritarian.

He did, however, support the necessity of a dictatorship of the proletariat, which, once implemented, to be "maintain[ed] by any means whatever," including abrogation of civil liberties -- a pretty solidly communist view. Mr. Asch suggests a different interpretation of Baldwin's position, but I'm afraid I find that interpretation quite unpersuasive.

He also expressed support for communism as an economic system, writing in a note to be included in the 30th reunion classbook of the 1905 Harvard class,

My "chief aversion" is the system of greed, private profit, privilege, and violence which makes up the control of the world today, and which has brought it the tragic crisis of unprecedented hunger and unemployment. I am opposed to the new deal because it strives to strengthen and prolong production for private profit. At bottom I am for conserving the full powers of every person on earth by expanding them to their individual limits. Therefore, I am for socialism, disarmament, and ultimately for abolishing the State itself as an instrument of property, the abolition of the properted class and sole control by those who produce wealth. Communism is the goal. It sums up into one single purpose -- the abolition of the system of dog-eat-dog under which we live, and the substitution by the most effective non-violence possible of a system of cooperative ownership and use of all wealth.

(Robert C. Cottrell, Roger Nash Baldwin and the American Civil Union 228-29 (2000).) And despite the reference to "non-violence," the earlier quote reveals that Baldwin was willing to endorse dictatorship and not just peaceful democratic change.

Finally, Baldwin also often defended the Soviet Union; he definitely did criticize its repression of dissent and civil liberties, but he ultimately defended such repression:

I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons -- the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition when I stacked it up against what I saw of fresh, vigorous expressions of free living by workers and peasants all over the land. And further, no champion of a socialist society could fail to see that some suppression was necessary to achieve it. It could not all be done by persuasion.

Nor is it easy to dismiss this, as Mr. Asch suggests might be the case, as being based on lack of information about Soviet repression (i.e., to take the view that Baldwin was merely a dupe of the Soviets rather than a fully knowing supporter). Baldwin had traveled to the Soviet Union, had written about it, and had corresponded to many of his friends on the Left who tried to persuade him to criticize the Soviets (including Emma Goldman, see, e.g., Cottrell at 194, 197-98, 216). Yet he continued to defend the Soviets as late as December 1936, when the Moscow show trials were already underway. (One would think that a defender of civil liberties who had also written about the Soviet Union would know a show trial when he saw it.)

Only the Molotov-Ribbentrop Pact -- a foreign policy move rather than an anti-civil-liberties move on the part of the Soviet Union -- ultimately made him change his views. "The Nazi-Soviet pact made you feel that suddenly the Communists were different people. They had abandoned us and got into bed with Hitler." I can certainly see why many on the Left who were primarily focused on fighting the European fascists, and who didn't care much about Stalin's mass murders of his own, would see the Pact as "the biggest shock of [their lives]." But why would someone who is focused on civil liberties be more struck by the Pact than by the show trials and all that came before and after? In fact, why should he be that surprised that two totalitarian regimes would make this sort of foreign policy move?

I should probably be doing some real work now instead of expounding on this. But setting the facts straight on the history of communism, both abroad in the United States, is pretty important to me. There were unfortunately far too many people who (1) endorsed communism as an economic system -- a colossal blunder that's worth studying, and one that reflects a lack of interest in at least the property rights protections of the Bill of Rights -- (2) endorsed communism's goal of a dictatorship of the proletariat that would justify massive suppression of even noneconomic liberties, and (3) either let themselves be fooled into turning a blind eye to the Soviets' atrocities, or, in Baldwin's case, likely willingly ignored what the Soviets were doing. Among other things, only understanding this record can help us understand why the ACLU and other groups felt it necessary to condemn Communism, and why Baldwin himself ultimately turned into a prominent critic of the Soviets.

More on the ACLU's Exclusion of Communists:

I asked Geof Stone to respond to my post defending the ACLU's exclusion of Communists from leadership roles and staff positions, and its statements that Communists, fascists, and others are unwelcome as members. (Geof is one of the scholars who criticized the exclusion, and whose criticism I was in turn criticizing.) Here's Geof's response:

Professor Volokh has, as always, offered a set of thoughtful observations on a difficult issue. As "the First Amendment scholar" referred to in the post, I thought it appropriate to add a few words.

Eugene's central point is that private organizations have no constitutional obligation to admit as members people they don't like. Of course, this is correct. The Constitution applies only to government. Yale University, Microsoft, and the Boy Scouts cannot violate anyone's constitutional rights.

Does this mean they act morally or wisely if they have a Jewish quota, or refuse to hire blacks, or exclude gay scoutmasters? Of course not. That these acts are not unconstitutional does not make them admirable, ethical, or defensible.

On the other hand, a private organization is not bound ethically to admit or employ all-comers. The Chicago Cubs don't have to let people who can't hit a baseball play shortstop (although they have long followed such a policy), and the Catholic church doesn't have to let Lutherans serve as priests.

The morality or wisdom of exclusionary decisions must turn on the nature of the private organization and the nature of the exclusion. I stand by my statement, quoted by Eugene, that the ACLU's decision to exclude "Communists" was a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties."

Certainly, the ACLU had every legal right to do what it did. But in doing what it did, it betrayed its own principles. The core principle it betrayed was that individuals should be judged on the basis of their actions rather than on the basis of their political or religious associations.

A fundamental problem during the anti-Communist witch hunt was defining a "Communist." Was a "Communist" someone who was currently a member of the Communist Party? Someone who had once been a member of the Communist Party? Someone who had been a member of an organization that had once been affiliated by the Communist Party? Someone who had once been a member of an organization that had once been supported by the Communist Party? Someone who had once attended a meeting of an organization that had once been affiliated with the Communist Party? Someone who had dated someone who had once been a member of the Communist Party?

Certainly, a private organization that adheres to certain core beliefs can ethically insist that its members support those beliefs. If the ACLU wished to insist on this, the proper approach for the ACLU would have been to focus on whether individuals supported the organization's core beliefs, rather than to focus on "Communism."

By allowing itself to be intimidated into sacrificing the principle that individuals should be judged on the basis of their actions rather than their political associations, the ACLU fell victim to the same hysteria of "guilt by association" that would infect the nation for the next two decades.

Perhaps other private organizations could act this way without violating their most fundamental values, but this was not the case for the ACLU. It had a responsibility to stand for a principle, and in this it faltered. Who knows, following Eugene's logic, perhaps members of the ACLU will someday soon demand that Muslims be excluded from its Board. I hope not.

I think my original post and Geof's suffice to lay out the arguments on both sides, but let me offer a brief reaction. The ACLU's rule as to the board and its staff was that the ACLU "regards it as inappropriate for any person to serve on the governing committees of the Union . . . or on its staff, who is a member of any organization which supports totalitarian dictatorship in any country, or who by his public declarations and connections indicates his support of such a principle." Its statement as to its members was that "The ACLU needs and welcomes the support of all those -- and only those -- whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine." The member statement thus, as I read it, doesn't focus on members' group memberships, but rather their views; the ACLU concluded, I think quite rightly, that those who adhere to Communist, Fascist, or KKK doctrine can't at the same time adequately support the organization's core beliefs.

The officers-and-staff statement did also ask whether people belong in certain organizations; but it seems to me that, where private organizations are concerned, judging people based on their political and religious associations can be quite proper. Membership in the Communist Party or the KKK doesn't tell you everything about a person's view, but it generally tells you something. We're not talking here just about past membership, or membership in a group that's supposedly allied with the bad groups; that may indeed be less telling. But if someone is currently a member of an organization that supports dictatorship (or racism), and works towards dictatorship (or greater racial prejudice), it seems to me that the ACLU can reasonably conclude that this person is pretty unlikely to be a committed ACLU officer or staffer. And outside who are judging a group may likewise think the less of the group because it has Communists or Klansmen among their officers.

I certainly hope that the ACLU won't exclude Muslims as officers, but that's because I suspect that many Muslims can be quite committed civil libertarians, much as many Jews are. The closer analogy is to the Catholic church excluding Muslims as bishops. Yes, you can imagine someone who is currently enrolled in a mosque but who would make a great Catholic bishop. It just isn't very likely. Nor is it likely that someone who is a member of the Communist Party or the Klan would do a good job of defending civil liberties.

[Puzzleblogger Kevan Choset, September 14, 2005 at 11:50am] Trackbacks

How many times do the words "Abortion" and "Court" appear in the top headline on the front page of the NY Times the day after Roe v. Wade was decided? (Answer below.)


What's in the Hatch?

The second season of ABC's "Lost" starts soon, and millions of dedicated viewers are scrambling to figure out what is going on. One of the (many) mysteries of the moment is what is in the hatch? (If you don't watch the show — and I've only seen a few episodes — it's hard to explain.)

At the risk of intruding on my puzzling co-blogger's turf, I thought readers might be interested in the puzzle. Here are clues that have been disclosed on a popular spoiler site thus far. [WARNING: This site has lots of spoilers for lots of TV shows.]

  1. This thing in the Hatch can be called by two different words: One is three letters and starts and ends with two letters that are right next to each other in the alphabet. The other is seven letters long and starts and ends with the same letter.
  2. The word that begins and ends with the same letter is not a plural, and it is not SOULS or WINDOW.
  3. Some of you were there this morning.
  4. In a way, it's something you've never seen before. But in a way, it's something you see every day and are probably seeing right now.
So, what's in the hatch?

UPDATE: It turns out that only people who watch the show religiously could have figured this one out. The answer was a man named Desmond.


Tuesday, September 13, 2005

Cornyn asks Roberts About Blog Post on the Umpire Analogy.--

As Orin noted, in Senator Cornyn's first question of John Roberts today, Cornyn discussed my Volokh Conspiracy post yesterday on three different ways that umpires can approach the task of judging balls and strikes.


Well, I happened to be looking at my computer last night, and one of the blogs, and it's always frightening to see — to put your name in a search and look at the ways it's mentioned. I suggest you don't do that, if you haven't, until this hearing is over, because this hearing is a subject of a lot of activity and interest in the blogosphere.

One of these blogs said that your comparison of a judge to a baseball umpire reminded him of an old story about three different modes of judicial reasoning built on the same analogy.

First, was the umpire that says some are balls and some are strikes, and I call them the way they are.

The second umpire says some are balls and some are strikes, and I call them the way I see them.

The third said: Some are balls and some are strikes, but they ain't nothing till I call them.

Well, I don't know whether it's a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning. But I wonder if you have any comment about that.


Well, I think I agree with your point about the danger of analogies in some situations. It's not the last, because they are balls and strikes regardless, and if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong.

I guess I liked the one in the middle, because I do think there are right answers. I know that it's fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues. That's not the view of the law that I subscribe to.

I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute. I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation. And the job of a good judge is to do as good a job as possible to get the right answer.

Again, I know there are those theorists who think that's futile, or because it's hard in particular cases, we should just throw up our hands and not try. In any case — and I don't subscribe to that — I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.

As I suggested he might yesterday, Roberts today adopted the second approach, that of a traditional judge in a liberal democratic society, believing in truth but recognizing the difficulty of perceiving it.

Charity's Duty to Disclose Racist Distribution of Raised Funds:

I now have more details on the Missouri Attorney General's lawsuit against the racist post-Katrina fundraisers, which I earlier blogged about here. I've put up the complaint (see the previous link); here's the essence of the AG's argument:

Defendants . . . have engaged in methods, acts, uses and practices of deception, fraud, false pretenses, false promise, misrepresentation, unfair practice, and the concealment, suppression and omission of material facts in connection with the advertisement charitable solicitations, all in violation of [sec.] 407.020, [Rev. Stat. Missouri], for reasons including, but not limited to, the following:

a. The concealment, suppression, and omission of the material fact that Defendants are not properly registered as tax exempt entities and hold no tax exempt status.

b. The concealment, suppression, and omission of the material fact that consumers’ donations made to Defendants are not tax deductible.

c. The concealment, suppression, and omission of the material fact that Defendants do not intend to utilize any of the moneys received through charitable solicitations for the benefit of non-white victims of Hurricane Katrina.

d. The concealment, suppression, and omission of the material fact that Defendants that the charitable donations will be used for hurricane relief for white victims only.

e. Engaging in the unfair practice of soliciting charitable donations which will be used for hurricane relief for white victims only.

A few questions: (1) Should objections (a) and (b) be treated as different, for legal purposes, from objections (c) and (d)?

(2) Charities often choose whom to give money to — sometimes they prefer poor people over rich people, people with children over people without children, women over men, blacks over whites, fellow Baptists over others, or whatever else; sometimes they do this categorically and sometimes they consider various attributes together with other factors. Are charities required to disclose all of these criteria, none of these criteria, or only some of these criteria — and, if the latter, which ones?

(3) In Riley v. National Federation of the Blind (1989), the Court struck down a requirement that fundraisers disclose in their pitches what fraction of the donations are used for fundraising expenses. Though the government argued that such a requirement was needed so that people wouldn't be misled into believing that most of their money was going to help the needy — when in reality 90% might end up being used up for expenses — the Court concluded that such a requirement was nonetheless unconstitutional. Given this, would it be constitutional to have a legal rule that requires disclosure of (a & b) non-tax-exempt status or (c & d) racial targeting of the aid?

(4) The Missouri AG seems to suggest that it's per se unfair — and thus forbidden by state law — to solicit charitable donations that will benefit only whites, regardless of whether the charity discloses this, see objection (e). Is that really dictated by state law? Is it constitutional? If it is, would it be constitutional for Missouri law to allow fundraising to help blacks or Hispanics or Jews (including secular Jews, to make this an ethnic criterion and not a religious one) and to forbid fundraising to help whites? (I'm not sure whether Missouri law does this, but I'm asking this question hypothetically.)

Does Senator Cornyn Read the VC?: Senator Cornyn is questioning John Roberts right now, and he is discussing the reaction to the Roberts hearing in the blogosphere. Right now he is discussing Jim Lindgren's post from yesterday [or so I assume; he described the post, and it seems to be this one, but didn't name the blog or the blogger]. Cornyn is asking which kind of umpire he would be, and asking for Roberts' comments.

  UPDATE: I rewrote this a bit to clean it up, as I wrote the first version while I was listening to the hearings in real time.
At the Roberts Hearings, the Senators were in full Foghorn Leghorn mode.--

Watching the Roberts hearings today, it is striking how ineffective most of the senators on both sides are in their questioning.

They used most of their time to make speeches and often didn't listen to Roberts' answers.

Most senators seemed extensively but poorly prepared and had trouble reading their own notes.

The senators were in full Foghorn Leghorn mode (a Warners cartoon character based on another fictional character, Senator Claghorn).

Comparing Roberts to these stereotypes of senators, on affect alone (leaving aside ideology and background) it would be hard to prefer any of these characters to Roberts for nearly any difficult administrative or judicial post. The only possible exception that I saw (and I missed a few senators) was Biden, who was smart and fiesty, if arguably a bit unfair. [I missed the more incoherent part of Biden's questioning.]

Even the attempt to moralize at Roberts' expense failed utterly, because Roberts came off as more principled and fair than any of those who were questioning. He may indeed be Bork without a beard and without a long record of controversial opinions (I don't think he is), but no one merely watching the hearings would have thought so.

Even the senators attempting to lecture Roberts on ethics appear to believe that they have lost this one, unless Roberts makes a major gaffe (which is unlikely if the senators do most of the talking).

It appears that it's all over but the senators' posing for the cameras.

(click to enlarge)

"Pay attention to me boy. I'm not talkin' just to hear my head roar. No no no, ya doin' it all wrong."

"What's the big, I say what's the big idea. Don't stand there gawkin' son, speak up. Now cu, I say cut that out, what's it all about boy, elucidate!"

"I keep pitchin' em and you keep missin' 'em. Ya way off, I say ya way off this time son."

"Say something! Explain yourself! Your tongue's flappin' but no noise is coming outta your big mouth!"

"But I got, I say, I gotta show the little egghead I still got a couple of tricks up my sleeve. Smart boy, got a mind like a steel trap...full of mice."

No, No, Everyone Has It All Wrong:

He said empire -- "judges like empires."

Oh, and it's celebrate; priests should celebrate. If only people listened more closely, we'd all avoid a lot of needless grief.

Day Two Roundup: If you missed the Roberts hearings, be sure to check out Tom Goldstein's play by play.
Volokh + Paris Hilton:

Todd's post on SUVs, credited to him and to, is quoted in Washington Post Express (p. 33) last week, right above a picture of Paris Hilton. We have arrived. Thanks to Hanah Metchis Volokh for the pointer.

Google Tests: In a Slate piece on the modesty of John Roberts, Bruce Reed does a little googling to prove a point:
   No biographical profile of Roberts is complete without a few references to his famous modesty. According to Google, the word "modesty" has already appeared alongside "John Roberts" more than 18,000 times.
  It's true that googling "John Roberts" together with "modesty" yields about 18,100 hits. But I picked a few other words to run through Google that are not generally known for their association with Roberts, and this is what I found: satan — 70,900 hits; pasta — 13,900 hits; hip-hop — 150,000; French --- 604,000; Social Security — 515,000; NASCAR — 74,700; and, finally, sex — 1,070,000. I don't know exactly what it means, but it probably suggests that this Google test isn't a very good measure of what Bruce Reed has in mind.
Open Thread on the Roberts Hearings: Any thoughts? Reactions? Comment away.
New Orleans Guns Should Be Returned Today:

The New Orleans Police Department home invasion and gun confiscation program began last Thursday. According to Louisiana law, emergency orders, such as those "regulating and controlling" firearms, automatically expire after five days. So today, the sixth day after the confiscations began, the legal authority for the confiscations has expired. Legally speaking, victims of the confiscation ought to be able to retrieve their firearms today.

But of course the above paragraph, describing the law in Louisiana, has nothing to do with what is actually occurring. As detailed in previous postings on this weblog, the lawless Police Superintendent Eddie Compass never created, in any form, a public order to authorize the gun confiscation. Nor are there any reports that the "order" (if it ever existed) has been renewed for another five-day period, as the law allows.

Let us hypothetically assume that the confisications were legal in the first place (under theory that confiscations are a form of "controlling" guns, which is allowed, but do not constitute "prohibiting" guns, which is not allowed). And let us further assume that the Superintendent's remark to a reporter constitutes creation of a lawful order (even though none of the statutory procedures for creating a lawful order were followed). Even then, the absence of a renewal order today means that the gun confiscations must cease, and that victims of the confiscation have every legal right to reclaim their property.

[Puzzleblogger Kevan Choset, September 13, 2005 at 2:58pm] Trackbacks
Fence Posts

I enjoyed giving out these problems when I taught computer science. Read the answer to each one before solving the next one.

How many posts do you need if you want to build a 10-yard long fence, with a post every yard?


How many posts do you need if you want to build a square pen, 10 yards on a side, with a post every yard?


How many posts do you need if you want to build a circular pen with a circumference of 40 yards, with a post every yard?


Blatant Nepotism at Slate,

which has the temerity to publish a poem by Ron Slate, "The Demise of Camembert". It's a neo-pastoral, as best I can tell, but though I don't go either for pastorals or for unrhymed material, I liked it a good deal (maybe because I do generally go for cheese). Check it out; my favorite lines are at the end, and though they need the rest of the poem to make sense, I thought I'd pass them along:

And you and I, paring away the rind,
do you and I have a patient nose
for the creamy inwardness of things?

Roberts, Stare Decisis, and Legal Theory: Moments ago, under questioning by Senator Grassley, John Roberts had a number of interesting responses about his jurisprudential moorings.

  If I heard and understood Roberts correctly, his foundation is a strong lawyerly commitment to stare decisis. He not only repeatedly expressed the importance of stare decisis; he also indicated that in the rare situations when he might overrule a prior case, he would faithfully apply the Court's prior statements as to when a case should be overruled. In effect, he would depart from existing law only by following the preexisting meta-rules on when he should depart.

  As for grand constitutional theories, he suggested that such commitments are for legal academics more than judges tasked with deciding cases. The reality of decisionmaking by committee, whether in a panel of three judges or nine, is that "the nuances of academic theory" are put aside. Interesting stuff.

  Did others get the same impression that I did? I may have missed a few things, but that was the gist of what I heard.
[Puzzleblogger Kevan Choset, September 13, 2005 at 12:11pm] Trackbacks
Elimination Tournaments:

Some variation on this was sent to me by a few different readers. Here's my own take:

The U.S. Open Men's Singles draw contained 128 people. Each round was single-elimination, meaning that two people played each other, and the loser was immediately disqualified and the winner moved on to the next round. How many TOTAL matches were played before Roger Federer was named the champion on Sunday? How did you calculate this?

The Passion of the Penguins:

The Left can have Michael Moore. The Right gets the penguins!.

Monday, September 12, 2005

Questions for Law Review Articles Editors:

I'm trying to solve a few puzzles related to how quickly -- or slowly -- law reviews get to read manuscripts. I know that people sometimes get offers two or three days after the article arrived at the journals, but I also sense that some journals take quite a while to do anything with the articles they get. There are naturally lots of plausible explanations for this, but before we go into such speculations, I was hoping I might get some background data on how journals actually oerate.

So if readers who are law review articles editors, or who were articles editors at any time since the 2002-03 year, can give me some feedback on this in the comments, I'd be much obliged. My questions:

(1) About how many submissions did you/do you get per day in September, which is one of the high submission seasons?

(2) About how long does it take between the time the envelope arrives at the law review, or the e-mail is received by the law review, and the time an articles editor at least starts skimming the piece?

(3) When you get more articles than you can conveniently read, which ones did you generally start with? (If they're ones you were most interested in, what categories were those? The more detail, the better. If you know the answers for your fellow articles editors, please give me a sense of them; or if you prefer just to say what you did, that would be fine, too.)

(4) If you found an article that you liked, how quickly could your journal generate an offer, assuming your colleagues agreed with you?

(5) Roughly what ranking is your school in the U.S. News & World Report rankings? (If you feel comfortable just giving the name of your journal, please do; conversely, if you want to give a rough range, such as 15-20 or 30-40 [but not something as rough as "top 20"], to avoid identify yourself or your journal, that would be fine.)

(6) Was your journal the primary journal or a specialty journal?

Please feel free to post the answers anonymously, if you prefer. Many thanks in advance.

Questions for Judge Roberts:

Glenn Reynolds points to some interesting proposals, including his own. Given the traditional unsubstantiveness of judicial nomination hearings, though, I doubt that they'll get answered -- or even asked.

Roberts' Umpire Analogy is not Quite as Simple as it Seems.--

In his brief statement to the Judiciary Committee (beginning at 16:55 of the link for Roberts' statement at this C-Span page), John Roberts twice likened a judge’s role to that of an umpire:

At 18:53: Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . .

At 21:55: I’ll remember that it’s my job to call balls and strikes, not to pitch or bat.

Roberts' comparison of a judge to a baseball umpire reminds me of an old story about three different versions of judicial reasoning, built on the same analogy.
First umpire: “Some are balls and some are strikes, and I call them as they are.”

Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.”

Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”

Three views of legal reasoning are represented here, with the first umpire representing some form of essentialist jurisprudence such as so-called “mechanical jurisprudence.” The second umpire would be close to the role attributed to a traditional judge in a liberal democratic society, believing in the existence of truth and in the wisdom of attempted impartiality, but also in the imperfection of people to see or understand truth. The view of the third umpire is usually attributed to legal realism or critical legal studies, though it would fit only a subset of adherents to those quite different philosophies.

While I think that Roberts with his talk of modesty was expressing a belief in the second sort of umpire, one should realize that the analogy of the umpire can cover the third sort, who thinks that he creates the existence that he is assigned to judge.

Further, I have heard that in Major League Baseball, umpires are rated on how well they call balls and strikes and demoted (or at least influenced in their future calls) if they call balls and strikes poorly. I question whether the press provides a similarly effective role judging the performance of justices.

UPDATE: Lest you think that no real umpire would express the third position, it turns out that the last view was based on a statement from a Hall of Fame umpire who died in 1951, Bill Klem. About whether a pitch was a ball or strike, Klem said, "It ain't nothin' till I call it." (Tip to readers Stephen Kaus and Craig Oren.)

Summary of the Roberts Hearings: Tom Goldstein offers a play-by-play here.
[Puzzleblogger Kevan Choset, September 12, 2005 at 2:19pm] Trackbacks
Complete the Set:

These three people are part of a well-known set of seven people. Who are the other four? I've put them in some order to help you. (Googling will make this trivial. So don't.)

  • _________

  • Jonas Grumby

  • __________

  • Eunice Howell

  • __________

  • Roy Hinkley

  • __________

WSJ Column Now Online: has made my op-ed on Chief Justice Rehnquist available for free here as part of its "At Law" series.
The Roberts Hearings Are Set to Begin: The Washington Post's preview is here. My sense is that Roberts is going to run circles around the Judiciary Committee, but I'm probably biased because of my man crush.

Sunday, September 11, 2005

Scholarly Work, Scholarly Qualifications: Over at Prawfsblawg, Dan Solove takes issue with a recent post by Brian Leiter on the credentials needed to do "competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology." Brian contends that a Ph.D. is essential training; Dan strongly disagrees; and a long and interesting comment thread has ensued.
From the Annals of the Almost Too Appalling to be True:

From Ha'aretz:

Advisers appointed by British Prime Minister Tony Blair are proposing that Britain get rid of Holocaust Memorial Day because Muslims find it offensive, the British Sunday Times reported.

The draft proposals - which provoked a backlash from British Jewish leaders - want to replace Holocaust Memorial Day with a Genocide Day that would include recognition of Muslim deaths in the West Bank and Gaza, Chechnya and Bosnia, the Times said.

A Home Office spokesman said it would consider the proposals but said it regarded the Holocaust as a "defining tragedy in European history," according to the report.

"The very name Holocaust Memorial Day sounds too exclusive to many young Muslims," a member of one of the committees was quoted as saying. "It sends out the wrong signals: that the lives of one people are to be remembered more than others. It's a grievance that extremists are able to exploit."

I can see the argument (though I'm not saying I agree with it) for replacing Holocaust Memorial Day with Genocide Day, especially because Britain played no direct role in the Holocaust. But to do so because "Muslims find" Holocaust Memorial Day "offensive" is, to say the least, offensive in itself. Even worse is the idea that a new "Genocide Day" would include "Muslim deaths in the West Bank and Gaza," thus giving credence to the absurd contention that Israeli policies in those areas amount to "genocide," and thus replacing a memorial to victims of the Holocaust with the fantastical political propaganda of those whose political ancestors (e.g., the Grand Mufti of Jerusalem, Haj Muhammed Amin al-Husseini) allied with the Nazis.

Remembering 9/11/01: Coverage from the Associated Press.
Bush in New Orleans, a.k.a. Fun With Photoshop: This is pretty clever. Link via Paul Caron.
Never Forget:

From a New York Times profile of Aaron Horwitz, my brother-in-law's cousin, murdered on September 11, 2001.

Finding Good in a Bad Day

Once, Aaron Horwitz had what most people would consider a supremely lousy day. A friend asked him how he would rate it, from 1 to 10, with 1 the worst.

"Eight," he replied.

You could get a contact high from Mr. Horwitz, 24, a bond broker at Cantor Fitzgerald with the almost laughable responsibility of entertaining clients and making them feel like the most important people in the world.

As if anyone had to pay him. For he was not just a showman, who did the Michael Jackson moonwalk on bar tops and who, at a museum, drew his own masterpiece on a mist-coated window next to a Rembrandt.

He seized souls, not letting go until he made them merry. He met a guy in a toy store and, moments later, the two were having a hula-hoop contest. He insisted a concierge stop weeping over a bad breakup, then called her at 2:30 a.m. to make sure. He sweet-talked hostesses at four-star restaurants into producing tables for eight (and their phone numbers for dates) and persuaded a street masseur to let Mr. Horwitz give him a massage.

"You could talk to a brick wall," his father told him. Yes, allowed the son, but he preferred chatting with a mirror. He often did so, then fell over, laughing.

Follow-up to the follow-up to the follow-up:

1. Source for home invasions by police to carry out gun confiscation: ABC World News tonight, Sept. 8, 2005 (Link courtesy of MusingsOftheGeekWithA.45, Sept. 9.) BTW, my Reason article, published on Saturday, has a dead link to another site with the same video; this link still works, as of early Sept. 11.

2. The statute confers the power of "regulating and controlling" the "possession, storage, display, sale, transport and use of firearms." Orin asks how the power to of "regulating and controlling" the "possession" of firearms can exist if it does not include the power to confiscate. Here's one example of a lawful order "regulating and controlling" without prohibiting: "For five days, starting today, no one may possess a firearm in the following public places:...within 2,000 feet of a helicopter landing pad. Persons who violate this order may be arrested." I agree with Orin that the power of "controlling" is broader than the already-broad power of "regulating." I just disagree that either power goes so far as to include the distinct power of completely "prohibiting."

A Follow-Up to David's Follow-Up: Just two quick responses to David's latest response.

  1. David, where did you get the idea that the police are breaking into homes to look for guns? I haven't seen any news reports that say this, but you have mentioned this repeatedly. Can you point me to the news reports of this happening? Or is this just supposed to be a hypothetical? The police do seem to be knocking on doors, and maybe they have broken into houses, too. If they have broken into houses, they necessarily must have done so without a warrant: the courts are flooded and all the judges have fled town, so there are no warrants that could possibly be obtained. But I haven't seen anything about breaking into homes to take guns.

  2. On the more substantive question, David's argument seems to be that there is an implicit nontextual limitation on the power to "control the possession" of firearms: specifically, that this power cannot be construed in a way that can have functionally similar effects to the power the government would have if the statute permitted the government to "prohibit the possession" of firearms. This just seems like a big stretch to me: I just don't see the textual hook for such a reading. For example, David's reading would seem to make the power to "control the possession" a nullity. It would make the power to control the possession identical to the power to regulate the possession, which would seem to violate his own interpretive principles that every word must be treated as having a very distinct meaning. Indeed, I don't know what the power to regulate possession could mean under David's view, as someone who refused to follow the regulation could be arrested for his possession, which would once again be the functional equivalent of prohibiting possession. In any event, perhaps David and I will just have to agree to disagree on this point.
Follow-up for Orin:

If the New Orleans police chief followed the advice of lawyers as conscientious and creative as Orin Kerr, New Orleans would be a better place. And our discussion of the home invasions and gun confiscation could be more legally precise, because the police chief would actually have promulgated an order, and we could discuss the legal implications of the particular order.

However, we evidently have no order, and hence we have no legal justification for the home invasions and gun thefts. Even if you read the power of "controlling" as expansively as does Orin, the power of controlling is created, pursuant to the statute, only after the chief of police does "promulgate orders." We can debate the scope of lawful "orders", but when there are no lawful "orders", the emergency powers of section 329.6 have never been invoked.

Now let us consider the effects of some orders, under the counter-factual hypothetical that lawful orders had been issued. Orin's theory is that the power of "controlling" includes the power of seizing all firearms (even though the seizures seem very much like "prohibiting"). So Orin's theory requires some way to distinguish "controlling" (which in his usage includes the power to completely deprive everyone of the posssession of firearms, megaphones, and flammable material such as gasoline or matches) from "prohibiting."

His theory is that "prohibiting" means the power to define a criminal offense (predicated on violation of an emergency order) whereas "controlling" does not. So let's look at his theory in practical application. Let's imagine that the statute did confer the power of "prohibitting" guns, and that the chief of police did issue a prohibitory order:

Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police is prohibited to to have a gun. I further declare the police may break into anyone's home without a warrant, to enforce my order.

(one hour later)

Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are under arrest for defying an emergency order issued pursuant to title 14, section 329.6.

Pursuant to Orin's theory, the above scenario cannot take place, because the police chief does not have the authority to issue an order "prohibiting" guns. Such a scenario could take place for items such as alcohol, which the statute does authorize prohibiting.

Now let's consider Orin's theory for how a "controlling" order works.

Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police has to surrender their guns to the police when the police tell them to. I further declare the police may break into anyone's home without a warrant, to enforce my order.

(one hour later)

Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are not prohibited from having a gun. However, I am controlling your gun by taking it away from you. Give me your gun.

Citizen: No.

Police officer: I am placing you under arrest for defying an emergency order issued pursuant to title 14, section 329.6.
There are some small distinctions between the first scenario and the second scenario, so Orin's theory is not impossible, as a matter of pure logic. Indeed, his theory may be the best defense that chief Compass and everyone who cooperates in his home invasion and and gun confiscation program will have, if they are sued.

However, I suggest that the distinctions between scenario 1 and scenario 2 are distinctions without a difference. The practical difference between the two scenaorios (and the difference between Orin's non-prohibitory "controlling" and actual prohibition) is so trivial that it is unreasonable to conclude that the legislature chose such different words to achieve such nearly identical results. Indeed, I suggest that the the only reasonable way to read a statute which authorizes "regulating and controlling" objects X, Y, Z, and authorizes "prohibiting and controlling" objects A, B, and C, is that the chief of police is not granted the power to invade homes and confiscate every single X, Y, and Z.

But of course all the above discussion is premised on the hypothesis that chief Compass is obeying the law. If he were acting pursuant to section 329.6, then his emergency order can last only five days. The gun confiscations having begun last Thursday, the police should begin returning guns to their lawful owners next Tuesday.

Am emergency order can be renewed for five-days periods. Are we to presume that the home invasions and gun seizures on every fifth day constitute the "promulgation" of a new "order" which is "controlling" (but not "prohibiting") the possession of firearms?

Appendix One: One final anecdote, for those readers who think there is at least a tiny possibility that the NO PD is applying 329.6 with the care and precision which Orin brings to his analysis of the statute. In the spring of 2004, I attended a Louisiana State House of Represenatives committee hearing on several gun bills. Among the people who testified was an officer representing the NO PD. Among the proposed bills was one which would prohibit gun carrying within a certain distance of a parade. A representative asked the NO PD spokesman (who was a uniformed police officer) how the proposed ban would affect people who had concealed handgun permits. The NO PD spokesman replied that there was no problem, since the NO PD did not issue handgun carry permits.

The statement visibly shocked several committee members. One of them explained to the NO PD officer that Louisiana has a law by which all law-abiding adults are entitled to concealed handgun carry permit. In fact, the law had been enacted eight years before, in 1996, and the law took away handgun carry licensing from the local police departments, and gave it to the Department of Public Safety and Corrections.

Perhaps Police Superintendant Compass actually is conscientious about respect for constitutional rights, including the right to bear arms, in Louisiana, and perhaps Superintendant Compass just had the bad luck of picking a legislative lobbyist on gun policy who knew less about Louisiana gun law than would someone who read a newspaper a couple times a week. Or perhaps Superintendant Compass has not even trained his officers to understand the most elemental rules of lawful gun carrying in the state of Louisiana.

And perhaps the government-sponsored home invasions and taking of property which are taking place in New Orleans right now have nothing to do with law (and hence nothing to do with the legal issues that Orin and I have been debating) but are simply the exercise of raw power which has suddenly found itself freed from the checks and balances of a functioning judiciary and other restraints.

Appendix Two: For anyone wondering how the NO PD/National Guard/US Marshals actions stack up against the (probably not legally binding in the U.S.) principles of the Universal Declaration of Human Rights, see articles 3 (security of the person); 12 (arbitrary interference with privacy, family, home); and 17(2) ("No one shall be arbitrarily deprived of his property.")