[Eugene Volokh, 9:38 PM]
ACOUSTIC GUITAR: As my friend and fellow lawprof Jack Balkin pointed out, words sometimes acquire qualifiers that were once thought unnecessary, but that changing technology or society now requires -- we now talk about "acoustic guitars" even though before the advent of electric guitars, guitars were by definition acoustic.

     Is there an official name for this term, and, if so, can you please e-mail it to me at volokh at law.ucla.edu, preferably together with a link to a definition that establishes the term's meaning? (No need for speculations or suggested names -- I'm just looking for any name that has already been established.) Thanks!

UPDATE: Thanks to Peter Daniels, Ron Hardin, Ted Arrowsmith, Steven Kurtz, Keith Spurgeon, and Gary O'Connor for passing along the answer, which is "retronym." Other examples: Silent movies, hand tools (as opposed to power tools), analog watch, snail mail, and print edition.

     Incidentally, one reader conjectured that I needed the answer for a legal brief, to help me make a legal argument. This is a plausible conjecture, but one that vastly overestimates the ratio of professional research to idle curiosity in my life. This question was entirely the latter.

 
[Eugene Volokh, 4:30 PM]
CONSERVATIVE EXCESSES: I ran across a Paul Craig Roberts column a couple of weeks back that struck me as rather troubling, and worth commenting on. It makes three of the classic mistakes of a certain form of conservative commentary: (1) exaggerating the degree to which the Left (of various forms) is suppressing speech, (2) exaggerating the harm caused by race preferences, and (3) blithely ignoring the problems of the past, even when suggesting that the present is somehow much worse than the past. Regular readers may know that I do think some on the Left try to improperly suppress speech, with varying degrees of successes; that race preferences are indeed bad; and that some criticisms of the past are indeed overstated. But as with all things, even good points shouldn't be taken too far -- and this column carries them vastly too far.

     The column, which I believe was written shortly before Trent Lott stepped down as Majority Leader, begins as follows:

For three decades, the United States has been descending into a feudal legal order.

In the ancient feudal system, the differential rights in the legal system were class-based. In the new feudal order, rights are determined by race, gender and handicapped status. In the old feudalism, the people with the most rights were descendants of warriors. In the new system, it is the victim who has superior rights. . . .

In the old feudal system, there were no First Amendment rights. The legally privileged were free to engage in hate speech and to verbally harass others, but any commoner who replied in kind could be sued or have his tongue cut out.

Senate Majority Leader Trent Lott still has his tongue, but just barely. He used his tongue in a way that gave offense to the new aristocrats. Black Americans have been granted the right to be offended by any words they don't like and to extract retribution. The offending speaker finds himself forced into contrition and humiliating apologies. Often the penalty is a destroyed career. . . .

The spectacle proves -- if proof is any longer required -- that the First Amendment has been trumped by the race-based privileges of the new feudalism.

Wow, "Black Americans" are "the new aristocrats". Quite a remarkable feudal system, that: Aristocrats have a lower standard of living than the "commoners." They have a lower life expectancy. More of them are arrested and imprisoned, per capita, than commoners.

     Now the reasons for all this are complex, and as I've argued before, they cannot all be blamed on racism, nor can they, in my view, justify race preferences. But let's keep a sense of perspective here: Whether or not one opposes race preferences, calling "Black Americans" "the new aristocrats" is a tremendous exaggeration of the injustices (real as they are) created by race preferences.

     What about the suppression of commoners' speech rights? Well, here's a little factor that might be relevant: Trent Lott is a political leader. Free speech doesn't mean that political leaders may offend potential constituents, with no fear of political repercussions. In fact, the great advance from feudalism to democracy came from the fact that political leaders are now subject to criticism, and to removal -- including removal for expressing views that enough voters find reprehensible.

     Later on, the column says:

Contrast the excoriation of Lott for his harmless remarks with the respectful reception given a few days before to black Vanderbilt professor David Farley's hate-filled outburst against white Southerners: "The problems that wrack America to this day are due largely to the fact that the Confederacy was not thoroughly destroyed, its leaders and soldiers executed. . . . Every Confederate soldier deserved not a hallowed resting place at the end of his days but a reservation at the gallows."

Noel Ignatiev, Farley's counterpart at Harvard, is not content with exterminating only Southerners: "The key to solving the social problems of our age is to abolish the white race."

No one demanded apologies and resignations from Farley and Ignatiev. The presidents of Vanderbilt and Harvard responded to the blatantly hateful speech with assurances that the hate-mongers were free to speak insensitively as long as it was about whites.

Here's my guess: If a Senate Majority Leader were foolish enough to say what Profs. Farley and Ignatiev said, they'd have been out on their ears as fast as Lott -- and rightly so. Conversely, if a professor said what Trent Lott said, he wouldn't have "ha[d] his tongue cut out," and likely even wouldn't have lost his job. Yes, occasionally the Left does try to get such people fired; it generally fails, because the First Amendment does indeed protect professors who offend blacks as well as those who offend whites. But in any event, the comparison in the column utterly fails, as does the claim that the criticisms of Lott were somehow a First Amendment issue.

     So we have hysteria about the supposed "aristocrat" status of blacks, and the hysteria about the supposed suppression of First Amendment rights. But the column doesn't just defend Lott's right to say what he said -- it defends his statement itself. At first, it sounds like it's defending the statement as just a meaningless pleasantry:

It was Lott's way of doffing his hat to the longest serving senator.

Before the new feudal age, Lott's words would have been understood as tribute to a centenarian. But we are so thoroughly conditioned to the new feudalism that race-baiters Jesse Jackson and Al Sharpton scarcely needed to open their mouths before "powerful" white males, including the president of the United States and the editorial page editors of the Wall Street Journal and New York Times, were doing their job for them, denouncing Lott for being a segregationist and giving offense to blacks.

But then it proceeds to defend the Dixiecrats on the merits:

It was left to the libertarian, Llewellyn Rockwell, to point out that, fundamentally, states' rights is about the Tenth Amendment, not segregation. Thurmond's political movement sought a return to the enumerated powers guaranteed by the Constitution to the states. . . .

Lott's tribute to Thurmond is easily defended on principled constitutional grounds. However, to speak against the neoconservative Republican and liberal Democrat ideal of a powerful central government is as impermissible as to utter words deemed to offend the legally privileged.

Interesting, that: Did Thurmond's political movement also seek a return to, say, the Fourteenth Amendment, also part of the same Constitution, which required states to give blacks the "equal protection" of the laws, something that the 1948 South notably neglected to do? What about the Fifteenth Amendment -- were the Dixiecrats also enthusiastic about protecting blacks' constitutionally secured rights to vote? In fact, what seems more like a system of entrenched class privilege in which some aristocrats (granted, often a majority, unlike in real feudalism) lord it over the downtrodden commoners -- 1948 Dixie (or 1948 America more broadly), or 2002 America, with all its warts?

     The Dixiecrats were no true Constitutionalists; and neither is the column a defense of true Constitutional principles. (Incidentally, many people speak out against a powerful central government and find nothing "impermissible" about it, either legally or socially. On the other hand, if they speak out against a powerful central government and at the same time defend the states' power to enforce Jim Crow -- or praise others whose goal was to do so -- then they naturally arouse opposition.)

     The column closes with this:

The only parts of the Constitution that still exist are the amendments that permit the income tax and direct election of senators -- amendments that centralized power in Washington. The land of the free is a lost civilization.

Interesting: When was the land of the free doing better than now? 1948, when blacks weren't free to use the same public schools or public restrooms as whites? 1948, when neither whites nor blacks were free to marry the other race? 1948, when one fundamental right of the post-feudalist order -- the right to vote -- was denied to millions of blacks? 1948, when the First Amendment that the column so praises was on balance considerably less protective than it is today? 1948, when state governments were routinely denying basic Bill of Rights protections to blacks (and, to a considerable extent, to whites)? Or, if you want to go before the income tax and the direct election of senators, 1900, when pretty much all the same was done? 1860 or before?

     Seems to me that, race preferences, growing federal power, and the occasional excesses of the Left notwithstanding, we are in most important ways more free now than we ever have been in the past. But in any event, it's certainly wrong to say, as the column says, that we're on balance vastly less free now than we have been in some mythical imagined golden age.

 
[Eugene Volokh, 6:19 PM]
SKYROCKETING -- ALL THE WAY UP TO 4 FEET HIGH, MAYBE 5: Howard Fienberg explains what's behind the Canadian Press's claim that "The number of Americans making refugee claims in Canada has skyrocketed since the Sept. 11 terrorist attacks, according to statistics from the Canadian Immigration and Refugee Board.":

"The number of Americans seeking refuge in Canada increased by 135 per cent before the end of October over the entire previous year."

How shocking! Until you find out the real numbers, not just the percentage increase:

"From January to the end of October this year, 191 filed refugee claims citing persecution in the U.S., compared to 81 in 2001. In 2000, 85 had sought refugee status, already a huge jump from the 40 that sought refuge in 1999." . . .

And after what Fienberg correctly describes as "a lecture on the oppressive and racist police state that America has become since 9-11" in the story, we get a glimpse of why some Americans might seek refugee status:

Vancouver immigration lawyer Phil Rankin said most of the American refugee claimants he's dealt with suffer mental illnesses that lead them to believe they are persecuted in the United States. Others are trying to avoid prosecution south of the border. None of them are successful, he said. "Nobody's going to buy that the United States is not a democratic place," Rankin said. "The problems that a lot of people have are legal. . . . That doesn't make you a refugee." . . .

A very good post from a very good blog.

 
[Eugene Volokh, 5:44 PM]
BIOLOGICAL ESSENTIALISM: Slate carries a rather odd column on cloning today. The claim at its heart is that:

A clone is not, by any stretch, the offspring of the woman who bears it. It's the identical twin of whoever ponied up the original DNA strand.

From this, the column infers that "the idea that cloning humans is a solution to anything at all rests on a colossal mistake" (presumably because it produces siblings, not offspring), that "the primary market for this kind of cloning is presumably infertile couples for whom standard treatments have not worked, a little lesson in genetics ought to dry up the revenue stream quickly" (presumably because those couples want offspring, not siblings), that the woman who carries the clone to term is a "poor deluded victim of a benighted scientific culture," and that "Eve, for example, upon reaching the age of consent, can safely have an affair with [the husband of the woman who bore her], if they both should choose, for this would not be father-daughter incest but merely a case of a man sleeping with his wife's sister. Discomfiting, perhaps, but not beyond the pale."

     This strikes me as deeply wrongheaded, because it assumes that the heart of the parent-child relationship is the child's status as offspring (in the sense of someone who is biologically related to them as a biological son or daughter would be), and that this is what all infertile couples want. But it seems to me that such couples want not offspring, but children -- young humans that they can raise and love. Many of them might want children who are genetically related to them (and that would be especially true of people who seek cloned children, instead of adopting); but even there, lots of people are quite happy if the biological relationship is something other than biological parent / biological offspring. That's why many infertile couples are happy to get sperm or egg donations from family members.

     And of course we also see this reflected in modern attitudes towards incest: I suspect that to most people today, at least a large part of the "beyond the pale" element of a father having an affair with a daughter has to do with their familial relationship, not their purely biological one. (We see evidence of this in the outrage about Woody Allen's relationship with Mia Farrow's daughter, and I suspect that we'd see much more outrage about a similar relationship where the man, unlike Woody Allen, had really raised the girl from birth.)

     So cloning is an inadequate "solution" only if the problem is "How do I bear a child who's biologically related to me as an offspring would be?" If the problem is "How do I bear a child who's biologically related to me, and whom I can raise as my child?," then cloning might well be a plausible solution (though there may still be a variety of problems with it, starting with the likelihood that it just isn't possible just yet). And of course if the problem is something else -- such as "How do I bear a child who's as similar to me as possible?" (a goal that I think people shouldn't seek, but that's a separate question) -- then cloning might well be the most effective possible solution.

     Again, there are lots of plausible arguments (pragmatic and ethical) against human cloning; I don't mean to either accept them or reject them here. But the notion that somehow there's "a colossal mistake" or a "delu[sion]" at the heart of people's attitudes, because a clone is biologically a twin rather than a traditional offspring, strikes me as itself being a mistaken argument.