Saturday, September 10, 2005

Dissent on the Right, in this case from Stephen Bainbridge.

An e-mail from the University of Houston law school reports:

The University of Houston Law Center will be hosting the Loyola-NO School of Law in exile for the remainder of the Fall semester. They will relocate their faculty and 1L's, as well as some upper division students to our campus, where they will run a parallel law school on Fridays, Saturdays, and Sundays. Information about the arrangements is posted at their emergency web site: There is also a useful and interactive blog at . . . As it turns out, the disaster we encountered at UHLC during Tropical Storm Allison gave us near-unique expertise in this kind of law school recovery . . . .

Cool plan; hope it works out well for everyone. And, of course, many other schools are taking many law students into their own normal programs for the semester.

Regulating, Prohibiting, and Controlling: In an update to his post on the legality of the confiscation of firearms in New Orleans, David Kopel takes issue with my view that "controlling the possession" of firearms includes the power to take the possession of firearms. He writes:
  The most serious problem is that [Kerr] reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibiting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.
  I don't think that's right. The lines between the different key phrases used in the statute aren't clear, but I don't think David's reading is the most natural interpretation of the state-of-emergency statute.

  Here's my thinking. The statute we are discussing, La. Stat., title 14, § 329.6, is located in the Louisiana Code's section on criminal laws. Thus, refusal to obey a valid order during a state of emergency can lead to criminal charges for failure to obey the order. See, e.g., State v. Gauthier, 263 La. 678, 269 So.2d 204 (1972). Given that the power to create emergency orders is the power to create enforceable criminal laws, I think the most natural reading of the power to "prohibit" the possession of an item is that it refers to the power to make possession of the item a criminal offense. That is, it is the power to arrest people and charge them with crimes for possessing the item prohibited.

  As fas as I can tell, this isn't what happened in New Orleans. There was no confiscation order prohibiting the possession of guns, which would have permitted the police to arrest people with guns and charge them with the crime of gun possession. Rather, the state officials were ordering individuals to hand over possession of their guns to the police. Whether this was a good idea or the beginning of the New World Order, as a matter of textual plain meaning it seems more an effort to "control the possession" of firearms than an effort to "prohibit the possession" of firearms.

  At the risk of repeating myself, my point is narrow. I don't have particular views on whether the confiscation order was an appropriate step, and I am quite open to arguments that it may have violated other laws. (I am particularly eager to hear David's argument for why it is inconsistent with the Universal Declaration of Human Rights.) But it seems to me that we shouldn't let our substantive views of the wisdom of the confiscation order cloud the legal question of whether it violated Louisiana law.
The New Orleans Gun Confiscation -- A Response to David Kopel: In a provocative post below, my co-blogger David Kopel argues that the confiscation of firearms in New Orleans is "blatantly illegal" under the Louisiana statute governing states of emergency, 14 La. Stat. § 329.6. He contends that the state, local, and federal officers have committed "perhaps a criminal act" by participating in the confiscation, and that they can be sued for this under 42 U.S.C. 1983 or perhaps impeached. (Fortunately, David does not advocate that the officers should be "shot on sight," so I suppose I should count my blessings.) I disagree with David's legal analysis, and thought it might be useful to explain why I disagree.

  The core of David's argument hinges on the meaning of the power to "regulat[e]" the possession of firearms. The statute states that officials are empowered to make orders "[r]egulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition[.]" David argues that the confiscation of firearms is not within this authority:
  The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."
  "Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting."
  The problem with this analysis is that the statute creates more than the power to "regulat[e]" the possession of fireams. It expressly creates the power to "regulat[e]" possession and the power to "control the possession" of firearms. Even if the power to regulate does not encompass the power to prohibit — a conclusion that seems plausible but not obvious, especially in the absence of any cases construing these terms — an order that individuals must give up possession of their firearms does seem to me to fall within the plain meaning of "controlling the possession" of firearms. It's not free of doubt, I think. But on balance, it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item. That is particularly likely because the statute grants the power to control possession in addition to the power to regulate possession; presumably the legislature intended control to be something beyond mere regulation.

  Let's move on to the procedural question. David argues that any confiscation order cannot be effective because particular procedural requirements have not been met:
  According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.
  I have a few problems with this analysis. First, the statute says nothing about the legality of emergency orders being contingent on the satisfaction of these procedural requirements. Second, the point about publishing the orders in a newspaper only dictates that the orders should be "published as soon as practicable in a newspaper of general circulation in the area." Given that the city is mostly under water and has no power, and thus no Internet access, I don't think there are any "newspapers of general circulation in the area" right now. As for Subsection C, the statute apparently does not say when the order must be filed with the Secretary of State. I'm not sure why the failure to file it so far (assuming it has not been filed) forbids the order from being effective now. Indeed, it would be a bit odd if the law governing emergency orders required those orders to be filed first with the Secretary of State before the emergency orders became effective. It's possible, but I'm not seeing it in the text of the statute.

   Finally, my understanding is that 42 U.S.C. 1983 is inapplicable. That law provides a private right of action against state officials for violating federal rights, not a private right of action against officials for violating state rights. See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980).

   Importantly, I have no sense of the remaining legal issues that David mentions. David suggests in his post that the confiscation may also violate a bunch of other laws, and I am certainly open to those arguments. Nor am I eager to defend the confiscation order on ground of policy: I don't know enough about the facts to have a good sense of whether the order was appropriate. But with those caveats made, I don't think I agree that the confiscation order violates 14 La. Stat. § 329.6. That's my tentative sense of the law, anyway. As always, comments and corrections welcome.

  UPDATE: I made minor substantive amendments to this post shortly after posting it, as I realized I misread one aspect of David's post.

Friday, September 9, 2005

New Orleans Gun Confiscation is Blatantly Illegal:

On Monday, I'll have an article on the New Orleans gun confiscation on But there's one part of the story that's too important to wait: the confiscation is plainly illegal. I realize that there are plausible arguments that the house-to-house break-ins and gun-point confiscations violate the Second, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, as well as numerous provisions of the Louisiana Constitution, including the right to arms. Indeed, the confiscations are inconsistent with the Universal Declaration of Human Rights, and with natural law. But my point is much more specific. The particular Louisiana statute which allows emergency controls on firearms also clearly disallows the complete prohibition being imposed by the New Orleans chief of police.

The relevant statute is La. Stat., title 14, § 329.6. It provides:

§329.6. Proclamation of state of emergency; conditions therefor; effect thereof

A. During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any municipality or parish, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding that the public safety is imperiled thereby, the chief executive officer of any political subdivision or the district judge, district attorney, or the sheriff of any parish of this state, or the public safety director of a municipality, may request the governor to proclaim a state of emergency within any part or all of the territorial limits of such local government. Following such proclamation by the governor, and during the continuance of such state of emergency, the chief law enforcement officer of the political subdivision affected by the proclamation may, in order to protect life and property and to bring the emergency situation under control, promulgate orders affecting any part or all of the territorial limits of the municipality or parish:

(1) Establishing a curfew and prohibiting and/or controlling pedestrian and vehicular traffic, except essential emergency vehicles and personnel;

(2) Designating specific zones within which the occupancy and use of buildings and the ingress and egress of vehicles and persons shall be prohibited or regulated;

(3) Regulating and closing of places of amusement and assembly;

(4) Prohibiting the sale and distribution of alcoholic beverages;

(5) Prohibiting and controlling the presence of persons on public streets and places;

(6) Regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition;

(7) Regulating and controlling the possession, storage, display, sale, transport and use of explosives and flammable materials and liquids, including but not limited to the closing of all wholesale and retail establishments which sell or distribute gasoline and other flammable products;

(8) Regulating and controlling the possession, storage, display, sale, transport and use of sound apparatus, including but not limited to public address systems, bull horns and megaphones.

(9) Prohibiting the sale or offer for sale of goods or services within the designated emergency area for value exceeding the prices ordinarily charged for comparable goods and services in the same market area at, or immediately before, the time of the state of emergency. However, the value received may include reasonable expenses and a charge for any attendant business risk in addition to the cost of the goods and services which necessarily are incurred in procuring the goods and services during the state of emergency, pursuant to the provisions of R.S. 29:701 through 716.

B. Such orders shall be effective from the time and in the manner prescribed in such orders and shall be published as soon as practicable in a newspaper of general circulation in the area affected by such order and transmitted to the radio and television media for publication and broadcast. Such orders shall cease to be in effect five days after their promulgation or upon declaration by the governor that the state of emergency no longer exists, whichever occurs sooner; however, the chief law enforcement officer, with the consent of the governor, may extend the effect of such orders for successive periods of not more than five days each by republication of such orders in the manner hereinabove provided.

C. All orders promulgated pursuant to this section shall be executed in triplicate and shall be filed with the clerk of court of the parish affected and with the secretary of state of this state.

D. During any period during which a state of emergency exists the proclaiming officer may appoint additional peace officers or firemen for temporary service, who need not be in the classified lists of such departments. Such additional persons shall be employed only for the time during which the emergency exists.

E. During the period of the existence of the state of emergency the chief law enforcement officer of the political subdivision may call upon the sheriff, mayor, or other chief executive officer of any other parish or municipality to furnish such law enforcement or fire protection personnel, or both, together with appropriate equipment and apparatus, as may be necessary to preserve the public peace and protect persons and property in the requesting area. Such aid shall be furnished to the chief law enforcement officer requesting it insofar as possible without withdrawing from the political subdivision furnishing such aid the minimum police and fire protection appearing necessary under the circumstances. In such cases when a state of emergency has been declared by the governor pursuant to R.S. 29:724 et seq., all first responders who are members of a state or local office of homeland security and emergency preparedness, including but not limited to medical personnel, emergency medical technicians, persons called to active duty service in the uniformed services of the United States, Louisiana National Guard, Louisiana Guard, Civil Air Patrol, law enforcement and fire protection personnel acting outside the territory of their regular employment shall be considered as performing services within the territory of their regular employment for purposes of compensation, pension, and other rights or benefits to which they may be entitled as incidents of their regular employment. Law enforcement officers acting pursuant to this Section outside the territory of their regular employment have the same authority to enforce the law as when acting within the territory of their own employment.

F. Notwithstanding the provisions of this Section, except in an imminent life threatening situation nothing herein shall restrict any uniformed employee of a licensed private security company, acting within the scope of employment, from entering and remaining in an area where an emergency has been declared. The provisions of this Subsection shall apply if the licensed private security company submits a list of employees and their assignment to be allowed into the area, to the Louisiana State Board of Private Security Examiners, which shall forward the list to the chief law enforcement office of the parish and, if different, the agency in charge of the scene.

First, there are the procedural issues. According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.

The more serious issue is the substantive one. The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."

"Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting." The statute does not authorize the New Orleans Police--abetted by the National Guard and the U.S. Marshalls--to break into homes, point guns at people, and confiscate every single private firearm--or every single private bullhorn or private cigarette lighter.

Yet New Orleans' lawless superintendant of police, P. Edwin Compass, has declared, "No one is allowed to be armed. We're going to take all the guns."

The Compass order appears to be plainly illegal. Under section 1983 of the federal Civil Rights law, any government employee who assists in the illegal confiscation would appear to be personally liable to a civil lawsuit. Moreover, higher-ranking officials--such as the National Guard officers who have ordered their troops to participate in the confiscation--would seem to be proper subjects for impeachment or other removal from office (and attendant forfeiture of pensions), depending on the procedures of their particular state.

All police officers, National Guard troops, and U.S. Marshals take an oath to uphold the Constitution and the laws. It appears that carrying out an illegal order to confiscate lawfully-owned firearms from homes would be inconsistent with the oath, contrary to sworn duty, and perhaps a criminal act.

UPDATE: Orin's response to my post (above) contains several misunderstandings, in my view:

1. The most serious problem is that he reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibitting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

2. He's right that the statute doesn't specify whether proper publication and filing are necessary for the emergency orders to be lawful. (And as my original post indicated, it's not absolutely certain that proper publication and filing have not occured, although it would be odd for the Louisiana Secretary of State not to post the filing of such an important order.) At least in some circumstances, strict adherence to the provisions of subsections (B) and (C) would be impossible. For example, the Secretary of State's office might be closed; indeed, the courts in Orleans Parish are currently closed. However, if the police chief failed to file the proper notice with the Secretary of State, even when the Secretary of State's office is open, the failure to file indicates, at the least, a disregard on the part of the chief for proper legal procedure.

3. Note subsection (B)'s rule that "Such orders shall be effective from the time and in the manner prescribed in such orders... Such orders shall cease to be in effect five days after their promulgation..." Has the police chief ever promulgated a proper emergency order about firearms? Sending police officers out to confiscate guns is not "promulgation." For the order to be valid, there must, at least, be some form of proper order to the public, not merely to the police. The "promulgation" must, at the least, include a date on which the order goes into effect, because a legal start date is necessary to calculate the automatic expiration date five days thereafter. It seems unlikely that a press conference merely announcing--after the confiscations and break-ins have already begun--the confiscations are taking place, consistutes the promulgation of an "order." The only Louisiana case law definitions of "promulgate" come from election law cases; they rely on the dictionary definition of "promulgate" as "To make known or announce officially and formally to the public." The cases further specify that "promulgate" should be understood in its specific statutory context. E.g., LeCompte v. Board of Sup'rs of Elections of Terrebonne Parish, 331 So.2d 173 (La. App. 1976). And it appears that the chief of police has not complied with any of the statute's specific standards for promulgation (newspaper, parish court, Secretary of State).

4. Violation of a person's state constitutional right to keep and bear arms is a violation of her 14th Amendment rights, and gives rise to a cause of action under section 1983. Kellogg v. City of Gary, 562 N.E.2d 685, 696 (Ind. 1990):

For all of the foregoing reasons, we now hold there is a state created right to bear arms which includes the right to carry a handgun with a license, provided that all of the requirements of the Indiana Firearms Act are met. This right is protected by the Due Process Clause of the Fourteenth Amendment and is both a property and liberty interest for purposes of § 1983.

If the confiscation of firearms is illegal under Louisiana statute, then the confiscation is very likely a violation of the right to arms under the Louisiana constitution. Moreover, pursuant to United States v. Emerson, the Second Amendment is recognized as an individual right in the Fifth Circuit, which includes Louisiana. The Second Amendment, even if unincorporated, would be the basis of a section 1983 claim against any federal employees involved in the confiscation. Also, the warrantless entry into homes and illegal confiscation of property might give rise to section 1983 claims premised on the Fourth and Fifth Amendments.

5. In response to some of the issues raised by comments on related posts...the President of the United States probably has the power, as Commander in Chief, to order the confiscation of firearms from areas in actual rebellion, following a proclamation of martial law. Martial law has not been declared. The "standard of scrutiny" question for the deprivation of state or federal constitutional rights is irrelevant here; the question would be relevant if there were a challenge to the constitutionality of the Louisiana emergency statute. When the police chief exercises power which he was never granted by law, then his act is ultra vires, and necessarily illegal.

Jimmy Carter's Helicopters:

David Brooks had an outstanding column reflecting on the miserable performance of the rescue operation in New Orleans here. As he puts it, "Each institutional failure and sign of helplessness is another blow to national morale. The sour mood builds on itself, the outraged and defensive reaction to one event serving as the emotional groundwork for the next." It reminds me of the fiasco with the botched rescue operation in Iraq in 1979 (or was it 1980?); Americans do not like looking like bumbling and incompetent fools, which is what the rescue operation made us look like. There would have been misery aplenty in and around New Orleans no matter who was in charge of the rescue operation; but Bush has to take responsibility for making that a lot worse than it otherwise would have been (for, among other things, converting FEMA into a feeding trough for the politically connected). It was by any measure a disgraceful performance, and Bush's inability to admit that and take responsibility for it is a pathological failure of leadership. He's lucky he can't run for a third time, because he would be punished for it.

Lawprof Letter Against Roberts: Over at The Yin Blog, lawprof Tung Yin takes a critical look at the recent letter signed by 160 law professors opposing the nomination of John Roberts. An excerpt:
  The weakness of the letter, as I see it, is that it fails the basic lesson of writing: "show, don't tell." The letter tells us that Judge Roberts does not deserve to be on the Supreme Court because the letter writer does not like Roberts' views of the right to an abortion or of the scope of the Commerce Clause or other areas of con law. What the letter does not do is show us that Roberts' views are intellectually flawed, deceptive, or otherwise objectionable on any basis other than outcome.
  Thanks to Michael Cernovich for the link.
The Supreme Court and the War on Terror: Looking over the recent terrorism cases working their through the system, I think it's a pretty good bet that the U.S. Supreme Court will agree to review today's decision in Padilla v. Hanft but that it will deny certiorari in Hamdan v. Rumsfeld.
States' Rights:

Though widely acknowledged to be very smart, this Justice aroused deep and often vituperative ideological hostility. He was appointed by a President as part of the President's campaign to move the Court towards more judicial restraint -- and, in keeping with his general tendency of mostly deferring to government action, this Justice was willing to endorse considerable federal government authority under the Commerce Clause, for instance letting the government regulate the growing of things for personal consumption on the theory that such regulation was necessary and proper to the regulation of interstate commerce.

But the Justice also believed that there were important limits on federal authority: "The exercise of the commerce power may . . . destroy state sovereignty." If the power is read too broadly, "the National Government could devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment."

Therefore, the Justice reasoned, Congress's power under the Commerce Clause must have judicially enforceable limits. In other opinions, he took similar views, stressing the Tenth Amendment as a limit on other Congressional powers, and finding in the constitutional structure limits to the federal government's ability to interfere with state government functions. This Justice was . . .

The Padilla Military Detention Case:

The Fourth Circuit has just held that Jose Padilla -- a U.S. citizen and alleged al Qaeda combatant who was captured in the U.S. -- can indeed be kept in military detention. In Hamdi v. Rumsfeld, the Supreme Court took this view as to Yaser Hamdi, a U.S. citizen and alleged al Qaeda combatant who was captured overseas. The question before the Fourth Circuit was whether the place where Padilla was captured should make a difference, and the Fourth Circuit said no. (The Court in Hamdi concluded that the military had to provide detainees some review procedure to determine whether they are indeed enemy combatants; but Padilla's challenge was apparently to the government's very power to detain him, and not to the process it has used to decide whether he's a combatant, see n.4 of the Fourth Circuit decision.)

So here's an interesting twist: The Hamdi decision rested on the votes of five Justices -- Rehnquist, O'Connor, Kennedy, Thomas, and crossover sensation Breyer; but in Rumsfeld v. Padilla, the dissent of Justices Stevens, Souter, Ginsburg, and Breyer opined that "American citizens arrested in the United States" could not be detained (at least for "protracted" times and "incommunicado"). Thus, it looks like Justice Breyer, the necessary fifth vote in the Hamdi precedent on which the Fourth Circuit relies, saw a distinction between detentions of U.S. citizens arrested in the U.S. and those arrested overseas, the very distinction that the Fourth Circuit quickly (and plausibly, given the reasoning of Hamdi) rejected.

When I wrote about this shortly after the Supreme Court's decisions in Hamdi and Padilla, I said,

I suspect that many lower courts would be reluctant to mix four Justices' views from one case (Hamdi) with one extra Justice's views in another (Padilla), especially when those views came in a footnote to a dissenting opinion written by another Justice (though, to be sure, an opinion that Justice Breyer did join without reservations). So in future cases involving Padilla . . . lower courts would be free to conclude that Padilla loses . . . .

This seems to have happened here: The Fourth Circuit followed the five Justices' view in Hamdi, and ignored Justice Breyer's endorsement of a limiting principle in the Padilla dissent. (Note, incidentally, that if Justice Breyer wanted to, he could have written a concurrence in the judgment in Hamdi that expressed the view that Hamdi was limited to U.S. citizens detained abroad. That would have affected the precedential weight of Hamdi; but his joining the dissent in Padilla didn't have that effect.)

But, as I also wrote, "What the Supreme Court will do with that, when and if Padilla's case comes back to the Justices, is impossible to tell." If the Court grants certiorari here, then Justice Breyer might well join Justices Stevens, Scalia, Souter, and Ginsburg -- the Hamdi dissenters -- in reversing the Fourth Circuit's decision.

[Puzzleblogger Kevan Choset, September 9, 2005 at 1:12pm] Trackbacks
There is a person in the news

in 2005 who goes by two names. If you add the letters "er" to the end of his first name, you get a common household/office item. His last name is one of the materials this item is made of. Who is it?


Blind Justice:

My father Vladimir asked me a good question last night. The goddess of Justice is depicted blindfolded and holding a scale. But if she's blindfolded, how does she know which pan of the scale is heavier than the other?

Running in Place:

Leon Kass is leaving the White House Council on Bioethics. This is good news for those who oppose federal limitations on biotech research, right? Not necessarily. Reason's Ron Bailey suggests that Kass' replacement is even more opposed to certain technologies. According to Bailey:

The bottom line: Pellegrino's appointment as chairman of the President's Bioethics Council will, if anything, increase that body's opposition to a lot biotechnological progress.

Meanwhile, in another piece Bailey suggests that the Bush Administration's decision to limit federal funding of research on embryonic stem cells has had some unintended consequences. Accotrding to Bailey,

these federal funding restrictions have provoked an outpouring of state initiatives for research funding for stem-cell research. So far four states have put taxpayer dollars behind human embryonic stem-cell research. . . . . private funding for academic stem-cell research is also rising.

No doubt, that is not what the administration intended.


Thursday, September 8, 2005

Hiring Economists at Religious Schools:

Wheaton College economics professor P.J. Hill presents an interesting conundrum on St. Maximos' Hut.

The American Economic Association (AEA) is the nation's leading association of economists. The AEA maintains "Job Openings for Economists" (JOE), which is where most academic openings for economists are posted. According to the AEA: "All members of the American Economic Association have a professional obligation to list their job openings in JOE." Wheaton is looking to hire a tenure track economics professor, and several members of the Wheaton economics faculty are AEA members, but it's not clear they can post their opening on the JOE.

The problem is that Wheaton College is an explicitly Christian school that, as Prof. Hill explains, "requires a commitment of faith from all its employees." (See here.) AEA policy, on the other hand, bars JOE listings that suggest religious discrimination:

"Listings that indicate discrimination on the basis of religion are not permitted even if the employer is eligible to discriminate on the basis of religion under Sec. 703(e) of the Civil Rights Act of 1964."
And there's the rub. As Prof. Hill explains:
Wheaton does fall in that category; we are legally allowed to impose religious standards as conditions of employment. Our job advertisement contains an explicit statement about our faith position and the requirement that employees adhere to that commitment. . . .

We would like to fulfill our professional obligations,and would also like to make known our job opening to as wide an audience as possible. But evidently the AEA regards colleges that require a religious commitment "beyond the pale" in terms of acceptable conditions of employment.

What to do? Wheaton certainly is not going to change its religious orientation (and, as I understand it, nothing Wheaton does violates federal anti-discrimination law). Wheaton could advertise the opening in other ways, but this would not fulfill the AEA obligation to post on JOE. It could post a "neutral" listing about the opening on JOE, leaving out any mention of Wheaton's Christian orientation, but this could mislead potential applicants causing them (and Wheaton) to waste time and resources in the hiring process, so I am not sure whose interest that serves.

Prof. Hill has another thought:

I would argue that private institutions, like Wheaton College,which wish to organize their educational mission around a particular world view (in our case the Christian faith) should have every right to do so. I find it interesting that the American Economics Association either believes such discrimination immoral, or that it leads to the production of bad economics. I suspect it is the former. But I question whether it is wise to rule out commitments to eternal verities as an appropriate criteria for organizing one's life and one's association with others. We live in a world with numerous claims about what constitutes truth. A society that allows individuals and organizations to make particular truth claims and to organize themselves around such claims is a much healthier (and diverse) one than a society that rules out such claims as organizing principles. I would much prefer a world where private organizations could choose their belief structure and then be allowed to impose those on anyone who chose to join them.
Yes, the AEA is itself a private institution. And, yes, the AEA has the same right as Wheaton to organize itself around certain principles — and exclude those who disagree. But that does not mean the AEA should do so, and it does not mean that, in doing so, the AEA is best serving the interests of its members. I'd be interested to know what readers think.

UPDATE: One-time VC guest blogger Andrew Morriss has a follow-up post at St. Maximos' Hut. It reminds us that, at least at some schools, faculty have obligations outside of the classroom. In this context, a professor's willingness to endorse a religious instituion's mission could be quite relevant. I would be remiss if I didn't note former VC contributor Jacob Levy's excellent contribution to the comment thread that views the AEA policy in a more sympathetic light. Read them both.

SECOND UPDATE: While I am not sure there is something that could be called "Christian Economics," there is such a thing as "Islamic Economics," as Andrew Morriss notes here. Also, at Mirror of Justice, Rob Vischer applies the notion of subsidiarity to the question of association and discrimination in the academy.

No Duty To Disclose Racist Beliefs:

The New York Times reports that

In Missouri, a much wider constellation of Internet sites - with names like and - displayed pictures of the flood-ravaged South and drove traffic to a single site,, a nonprofit entity with apparent links to white separatist groups.

The registrant of those Web sites was sued by the state of Missouri yesterday for violating state fund-raising law and for "omitting the material fact that the ultimate company behind the defendants' Web sites supports white supremacy."

I'm trying to get my hands on the complaint, so I can see exactly what the state's theory is. But a requirement that fundraisers reveal potentially embarrassing information would be an unconstitutional form of speech compulsion, see Riley v. National Federation of the Blind (1989). In Riley, the Court struck down even an ideologically neutral requirement that fundraisers disclose in their pitches what fraction of the donations are used for fundraising expenses; a requirement that fundraisers disclose their reprehensible viewpoints -- not all viewpoints, presumably, but only certain ones that the state thinks are bad enough -- would be even more clearly unconstitutional.

I can understand why donors might feel cheated if they give money to some seemingly benevolent cause, and then learn that the cause's founders support white supremacy, Communism, or whatever else. But given Riley, the government may not mandate the inclusion of disclosures in the fundraiser's pitches, even in order to protect donors.

"Anti-Rape Condom Aims to Stop Attacks"


A South African inventor [Sonette Ehlers] unveiled a new anti-rape female condom on Wednesday that hooks onto an attacker's penis and aims to cut one of the highest rates of sexual assault in the world. . . .

Sounds like a great plan, always on the assumption that it works. It may indeed, as some critics seem to say, "enrage the attacker further and possibly result in more harm being caused," in the words of "Sam Waterhouse, advocacy coordinator for Rape Crisis." But it may also make him run screaming in pain, focused more on getting the condom off than continuing with the act. This is especially so when the rapist doesn't have a gun or a knife, and in the U.S., at least, nearly 85% of rapes don't involve a weapon (see table 66 here). Naturally, not a panacea, but a nice try. Plus, it's also life imitating Neal Stephenson's Snow Crash.

But, shifting from Snow Crash to Princess Bride, "Other critics say the condom is medieval and barbaric"; I don't know who the critics are, but I did indeed see one criticism following the story, in a Kansas State University newspaper, calling the device "barbaric." I do not think that word means what you think it means. Rape is barbaric. Sticking hooks into an attacker's penis as a means of interrupting a rape is eminently legitimate self-defense, even setting aside the poetic justice. If barbarians' supposed sins consisted of fending off rapists, even in painful ways, "barbaric" would be a high compliment, not a pejorative.

Please don't confuse this, incidentally, with the question of what punishments are appropriate for rapists — a different matter from what devices are appropriate to stop rape. (For instance, U.S. law does not authorize the death penalty for rape, but it certainly allows people who are in danger of being raped, or who are being raped, to kill the attacker in order to prevent or stop the rape.)

Constitutions and Emergencies:

The New York Times reports:

Waters were receding across this flood-beaten city today as police officers began confiscating weapons, including legally registered firearms, from civilians in preparation for a mass forced evacuation of the residents still living here.

No civilians in New Orleans will be allowed to carry pistols, shotguns, or other firearms, said P. Edwin Compass, the superintendent of police. "Only law enforcement are allowed to have weapons," he said.

But that order apparently does not apply to the hundreds of security guards whom businesses and some wealthy individuals have hired to protect their property. The guards, who are civilians working for private security firms like Blackwater, are openly carrying M-16's and other assault rifles. Mr. Compass said he was aware of the private guards, but that the police had no plans to make them give up their weapons.

Note, though, that the Louisiana Constitution, art. I, sec. 11 (enacted 1974), provides that

The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Is there some implicit emergency exception to the right to bear arms here? On the other hand, doesn't the emergency make the right especially valuable to the rightsholders? Should it matter that the government seems willing to let "businesses and some wealthy individuals" hire to people use arms "to protect their property," but isn't willing to let less wealthy individuals use themselves and their friends and relatives to protect their property (and their bodies and their lives)?

Katrina Relief and the Constitution-in-Exile: I had thought that the nomination of John Roberts had finally put to rest fears of the mythical Constitution-in-Exile movement. Over at Slate, however, UVa lawprofs Risa Goluboff and Richard Schragger argue that the possible ascendance of the Constitution-in-Exile might lead the Supreme Court to strike down FEMA and the Department of Homeland Security, hobbling future hurricane relief efforts:
  The Constitution in Exile sees government as the enemy of individual rights. It insists that the preservation of such rights requires that government refrain from amassing power. And the individual rights it deems paramount are those of property and contract—rights that, if taken to the lengths the conservative jurists propose, would hobble government power as we now know it.
  . . .
  Were the Constitution in Exile to return to its allegedly rightful home in the Supreme Court, the national government would likely be prevented from taking on responsibility for any future Katrinas. After such a horrific display of what happens when the nation faces a disaster of national proportions and the national government falls short, it is clear that Judge Roberts, and Sandra Day O'Connor's replacement, should be asked if they endorse such a vision.
  Given that the Constitution-in-Exile movement doesn't exist, I think it's fine if Senators ask this question. Roberts and whoever is nominated to replace O'Connor will just say "no," and then the Senators can move on to the next question.
Taking Away Their Guns in New Orleans: I have a feeling that this story is going to get a lot of attention at the VC one way or another, so I figure I may as well be the first to raise it:
  Water was receding across this flood-beaten city today as local police officers prepared for a mass forced evacuation of the several thousand residents still living here. Authorities also began confiscating firearms from civilians.
  . . .
  The city's Police Department and federal law enforcement officers from agencies like the United States Marshals Service will lead the evacuation, Mr. Compass said. Officers will search the city house by house, in both dry and flooded neighborhoods. No one will be allowed to stay, he said.
  Meanwhile, the city is confiscating firearms from civilians, including legally registered weapons, Mr. Compass said. "Only law enforcement are allowed to have weapons," he said.
Pork Barrel Spending and the Katrina Flood: In his post below on the Washington Post story on spending by the Army Corps of Engineers in Louisiana, David writes:
  [T]he article suggests that the Corps of Engineers exists almost entirely to fund pork barrel projects. So much for those who argue that the essential problem was parsimonious Republicans or a weak state. The essential problem (beyond Mother Nature), as is often the case, was short-sighted politicians.
  I read the article a bit differently. As I see it, the article makes the point that while the Army Corps of Engineers put lots of resources into Louisiana, "much" of it aimed at keeping New Orleans dry, some of the money was put towards other projects that may or may not have been needed. The article doesn't say exactly how much, but says that "hundreds of millions" of the $1.9 billion spent by the Army Corps of Engineers in Louisiana was unrelated to keeping New Orleans dry.

  If I'm not mistaken, however, the article doesn't provide any reason to conclude that the pork barrel spending facilitated or caused the flooding of New Orleans. I'm no expert on the question, of course, but my sense is that the flooding resulted primarily from the combination of a) long-term government planning for only a Category 3 Hurricane hitting New Orleans and b) a Category 4 hurricane hitting New Orleans. The article notes that the Army Corps of Engineers had started to study the feasibility of upgrading the levees for a higher level of protection, but the study was obviously too late. If that's right, then the primary problem that led to the flooding would seem to be more poor long-term risk planning or just plain bad luck than pork barrel spending.
California's Two Electorates:

The California legislature's attempt to reverse a 5-year-old 61%-39% referendum on same-sex marriage reminded me of something that political science professor Bruce Cain pointed out a while back — states have, in a sense, two electorates: The electorate as filtered through legislative election, and the direct electorate; and the two will inherently (in many states) yield different outcomes on many issues.

The most interesting reason Cain pointed to (and I realize there are many others, but I want to focus on this one) is that legislative districts have equal population, but not equal numbers of voters. Some districts consist nearly entirely of citizens, include relatively few children, and have high voting rates among eligible voters. Those districts cast many votes in statewide elections for governor, for U.S. senator, and on ballot measures. Other districts with the same population have many more noncitizens (whether legal immigrants or illegal aliens), many more children (for instance, Mexican Hispanics, Hispanics generally, and blacks have higher birth rates than whites), and lower voting rates among the eligible voters (for instance, nonwhites are more likely not to vote even when they are eligible). Those districts cast fewer votes in statewide elections. But each district elects one state assemblyman, state senator, or U.S. representative.

Consider, for instance, a simple and oversimplified example, with three districts, each with population 100,000, with the legislators faithfully tracking their residents' views, and with the breakdowns of views being the same among voters and nonvoters in the same district:

District# (each with population 100,000)Sentiments on issue ALegislator's vote on issue APercentage of residents who votePopular vote on issue APopular vote against issue A
Total47%-53%2-1 against50%76,00074,000

The legislature votes 2-1 against issue A, and that it is indeed the sentiment among the public as a whole (including nonvoters); but as a ballot measure, issue A wins by 1%. (In other models, the legislative vote is close in one direction, and the popular vote is a landslide in another direction.) So even without gerrymandering, political horse-trading, account being taken of the intensity of preferences (which, many assume, are reflected more in legislative votes than in popular votes), and the like, the different percentages of voters in each district are enough to make the legislative-filtered results be quite different from the direct results.

Now you can decide for yourself whether this is good or bad. Is the drawing of district lines by total population bad, because it gives each of the 20,000 voters in district 3 more influence over the selection of a legislator than each of the 80,000 voters in district 1? Is it good, because it leads each legislator to represent the same number of actual people, even if not the same number of voters? Should this lead us to like initiatives and referenda (or the decisions of statewide elected officials) more than the decisions of the legislature, or vice versa? Should it lead us to like a mixed legislative-popular system, or oppose it? I express no opinion on these subjects.

But I do think that this should remind us not to be surprised when Californians consistently elect Democratic House delegations and legislatures, but often elect Republican governors and U.S. senators, and enact more conservative ballot measures. And we should expect the same in other states that have a lot of immigrants (who are more likely to be noncitizens) and a lot of nonwhites (who are more likely to be underage, and more likely not to vote when eligible).

UPDATE: One of the comments complains that the 80%-20% disparity in the table above is unrealistic (though others point out that very substantial disparities, though not fourfold, do exist). But this is a stylized example, with only 3 districts. If you have 80 districts, you can have the same effects with much less stark differences.

Just to keep the arithmetic simpler, say you have 100 districts of 100,000 voters each. 55 are 55%-45% against proposal A, but they have on average only 45% turnout. 45 are 55%-45% in favor of proposal A, but they have on average 55% turnout. In the legislature, A loses 55-45. In a ballot measure vote, we have an exact draw -- 55 districts with 45% turnout are the same for statewide election purposes as 45 districts with 55% turnout. Adjust the numbers by a hair in A's favor, and A would win statewide, though it would still lose in the legislature.

"Extreme Right-Wing":

Clayton Cramer has a (mostly) excellent point:

Governor Schwarzenegger announced that he would veto a same-sex marriage bill passed by the California legislature, and his reason for it was that five years ago, a majority--a rather strong majority at that--of California voters passed an initiative defining marriage as "one man, one woman." So what was the response of advocates for the bill?

"Clearly he's pandering to an extreme right wing, which was not how he got elected," said Geoff Kors, executive director of Equality California, one of the bill's sponsors.

Proposition 22, which defined marriage as "one man, one woman" received a Yes vote from 61.4% of the voters at the March 2000 election. So I guess in gayspeak, 61.4% of the population of California--one of the most liberal states in the nation--are "extreme right wing."

Why he wants to mar this argument with the gratuitous "gayspeak," I don't know: Misleading usage by gay activists is no more properly called "gayspeak" than misleading usage by an NAACP leader is properly called "blackspeak" or misleading usage by NOW leaders is called "womanspeak." But in any event, Cramer's essential point strikes me as correct and important.


Put these in order by moving the fewest names:

Washington, Wilson, Johnson, Johnson, McKinley, Davis, Jackson, Taft, Kennedy

Moving a name to between two other names, before the first name, or after the last name all count as one move. Thus, exchanging #2 and #7 requires two moves (since you'd have to move #2 and then move #7).

Note that "order" need not necessarily mean chronological order.

UPDATE: So far, no right answers ("right" = "the one I think is cool") in the first 11 posts, so I suppose this is a tough one. If you like this, please forward it to puzzle-loving friends (or discussion lists).

FURTHER UPDATE: Ed Johnson, in the comments, got it; Bob W almost got it.

[Puzzleblogger Kevan Choset, September 8, 2005 at 11:01am] Trackbacks
Tricky Math Problems:

I'm very interested in the types of math problems (like Eugene's locker problem and the ones I've posted in the past several days (here, here, and here)) that seem deceptively difficult, but are, in fact, quite simple once you reach a key insight. If you have any other such problems that you like, please email them to me at [my last name]

Must-Read Article from the Washington Post

concluding that the problem with Corps of Engineers spending in Louisiana was not a lack of funding (Louisiana receives more than any other state), but an intentional direction by Louisiana politicians of such funds to pork barrel projects that would provide immediate political benefits instead of to boring flood control. Indeed, the article suggests that the Corps of Engineers exists almost entirely to fund pork barrel projects. So much for those who argue that the essential problem was parsimonious Republicans or a weak state. The essential problem (beyond Mother Nature), as is often the case, was short-sighted politicians.

Wednesday, September 7, 2005

New Orleans Emergency Plan for Hurricanes

can be found here. Among other things, it shows that the city was well aware that approximately 100,000 people would not have the means to leave the city on their own in the event of an evacuation order.

AALS Annual Meeting in N.O. Presumably Canceled:

The head of the New Orleans convention bureau told NPR today that he is canceling all conventions scheduled to be held in New Orleans through March 2006. This would include the annual Association of American Law Schools conference. Hopefully, the AALS can arrange to either hold the conference later in the year, as suggested by Larry Ribstein (scroll down, permalink doesn't seem to work), or hold another conference there soon.

UPDATE: Here's the official announcement from the convention bureau website (via Signifying Nothing): "All city-wide conventions (those utilizing center space and three or more hotels) to be held in the Center are cancelled through March 31, 2006. The commitment of New Orleans to a flawless experience for our customers means unequivocally that we will not re-open for convention business until the experience is perfect and to your and our high standards. We will err on the side of safety for you." The AALS is using three hotels, but not the convention center, so this announcement does not officially affect it. But if N.O. isn't going to be ready to host three-hotel conventions that use the center, it presumably won't be ready three months earlier to host three-hotel conventions that don't use the center.

Full-Tuition Scholarships for Katrina-Affected Students at Hebrew U.:

Pulled from the Scholars for Peace in the Middle East Website:

President Prof. Menachem Magidor of The Hebrew University of Jerusalem has announced that full tuition scholarships at the Rothberg International School will be offered to students affected by Hurricane Katrina. The autumn semester begins on October 9, so there is still plenty of time to make arrangements to attend. Courses are offered in English, and no prior knowledge of Hebrew is required. Dormitory accommodation on the University's Mount Scopus campus is available. Interested students are asked to contact Aviva Kremer at as soon as possible.

[My understanding is that Rothberg credits are easily transferable to U.S. institutions. I know quite a few people who have studied there, and they speak of it highly--ed.]

Roger Baldwin (the ACLU's Founding Director):

A comment to my "the ACLU, Communists, and private organizations" post asked for evidence supporting my claims about Roger Baldwin, the ACLU's Founding Director (for the details of those claims, see that post). That's a very fair question; part of the answer is to point people to Robert C. Cottrell's Roger Nash Baldwin and the American Civil Liberties Union (Columbia University Press 2000), which I believe is generally seen as a fair-minded and on balance positive biography. But I thought I'd also quote excerpts from a rather striking article published by Mr. Baldwin in Soviet Russia Today in 1934 (I've also put a copy of the entire text here) (emphasis in original):

I believe in non-violent methods of struggle as most effective in the long run for building up successful working class power. Where they cannot be followed or where they are not even permitted by the ruling class, obviously only violent tactics remain. I champion civil liberty as the best of the non-violent means of building the power on which workers rule must be based. If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working class liberties. The class struggle is the central conflict of the world; all others are incidental.

Proletarian Liberty in Practice

When that power of the working class is once achieved, as it has been only in the Soviet Union, I am for maintaining it by any means whatever. Dictatorship is the obvious means in a world of enemies at home and abroad. I dislike it in principle as dangerous to its own objects. But the Soviet Union has already created liberties far greater than exist elsewhere in the world. They are liberties that most closely affect the lives of the people — power in the trade unions, in peasant organizations, in the cultural life of nationalities, freedom of women in public and private life, and a tremendous development of education for adults and children. . . .

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. . . .

[I]f American champions of civil liberty could all think in terms of economic freedom as the goal of their labors, they too would accept “workers’ democracy” as far superior to what the capitalist world offers to any but a small minority. Yes, and they would accept — regretfully, of course — the necessity of dictatorship while the job of reorganizing society on a socialist basis is being done.

Quite remarkable words, it seems to me, from the head of an American civil liberties organization. To his credit, Baldwin apparently recanted in 1939 (though, as I said, that was mighty late), and turned into a severe critic of the Soviet regime. And of course even in the 1930s, many in the ACLU were anti-Communist, and today's ACLU ought not be judged because of the failings of an ACLU leader in the 1930s. Still, it seems to me that once one reads these words, it becomes hard to call Baldwin an "FDR socialist," unless one has a very dim view of FDR.

California Legislature About To Violate the California Constitution?

I tentatively support legislative enactment of same-sex marriage -- but only when the legislature is constitutionally authorized to do this. And the California bill that would legalize same-sex marriage seems to me to be a pretty clear violation of the California Constitution.

California Family Code sec. 308.5, enacted by the voters as Prop. 22 in 2000, provides that

Only marriage between a man and a woman is valid or recognized in California.This is an initiative statute, not a constitutional amendment; it therefore may be challenged as violating the state constitution (a matter that's now before the state courts), and may be overturned through something less than a constitutional amendment. But that something must be a vote of the people, not just a vote of the legislature; California Constitution article II, section 10(c) says that
The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
So while the legislature could put a new proposal on the ballot, it can't just overturn the old ballot measure on its own say-so (even if the Governor signs it).

As best I can tell, the legislature's argument is that Prop. 22 only banned California from recognizing out-of-state same-sex marriages; but nothing in the Proposition's text says anything about that -- the law applies to all marriages. Some materials in the ballot pamphlet stressed the risk that California courts would recognize out-of-state same-sex marriages, since that was the most pressing risk (from the perspective of foes of same-sex marriage) visible in 2000. But while ballot pamphlet materials may indeed be relevant when a court is interpreting an unclear statute, nothing in the materials says or in my view even suggests that the initiative is limited to out-of-state marriages.

Moreover, the initiative text is clear, and "ballot materials can help resolve ambiguities in an initiative measure . . ., but they cannot vary its plain import." People v. Wheeler, 4 Cal.4th 284, 294 (1992) (superseded by statute on an unrelated point). The legislature is trying to overturn the people's will without a vote of the people, a step that violates the California Constitution.

More "God Punishing America Through Katrina,"

this time for supporting the Israeli withdrawal from Gaza, helpfully collected in this WorldNetDaily piece (thanks to reader David Weinstein for the poster). I haven't checked the accuracy of most of WND's quotes, but the material that's linked to checks out. For my views on the subject, see my "Does God Dislike Poor People?" post.

UPDATE: More rabbis take this view.

Related Posts (on one page):

  1. More "God Punishing America Through Katrina,"
  2. Does God Dislike Poor People?
Undervisited Blawgs: I don't control the blogroll in these parts, so I thought I would point out three underappreciated blawgs that would be on my blogroll if I had one: Appellate Law & Practice, which reviews and summarizes recent appellate court decisions; Legal Fiction, which offers thoughtful and interesting left-of-center commentary on law and politics; and CrimLaw, by Virginia defense attorney Ken Lammers, which is mostly about, well, criminal law. Check them out if you're interested.
New Circuit Justice Assignments: SCOTUSBlog points out that with the passing of Chief Justice Rehnquist, the Supreme Court today has announced temporary new Circuit Justice assignments that have redistributed the late Chief's duties as Circuit Justice. The old ones are here, and the new ones are here. Justice Ginsburg has picked up the DC Circuit; Justice Thomas has picked up the Fourth Circuit; and Justice Breyer has picked up the Federal Circuit.
Who invented "the Rehnquist five"?

An Associated Press obituary of Chief Justice Rehnquist by Gina Holland used the phrase "the Rehnquist five." As a result, the phrase has come into widespread usage. In the Westlaw archives, the first recorded usage is a July 1, 1988, opinion piece by Washington Post syndicated columnist Edwin Yoder. The phrase next appears in a June 2, 1991, op-ed in the St. Louis Post-Dispatch by retired Democratic Senator Tom Eagleton. The first law review usage is in the November 2001 Harvard Law Review, in NYU law professor Larry Kramer's forward to the HLR's annual Supreme Court review.

UPDATE: PoorYoricRants notes that the first use of "Rehnquist five" precedes Clarence Thomas's appointment to the Court. For that matter, so does the second use, by Sen. Eagleton, since Thomas joined the Court in October 1991, and Eagleton was writing in June of that year. Based on the case discussed by Yoder, the pre-Thomas member of the "Rehnquist five" was Justice White, while in Eagleton's article the fifth person could be either White or Souter.

[Puzzleblogger Kevan Choset, September 7, 2005 at 12:27pm] Trackbacks
The Castle Wall:

This is probably my favorite math problem. The solution requires no complex mathematics, but rather several separate, elegant insights. If you can't solve it, but think you have some insights to add, post them.

There is an irregularly shaped castle wall with 12 irregularly spaced guard towers around the perimeter. The towers may be evenly spaced; they may all be clustered together; they may be somewhere in between those two options. There is a guard at each tower. Each guard patrols the castle perimeter, walking at a pace that allows him to make a complete loop around the perimeter in exactly one hour. (Thus, all 12 guards walk at the same pace as each other.) At noon, each guard starts at his own station and begins to walk either clockwise or counterclockwise (to be determined randomly). Whenever two guards meet each other, they immediately each turn around and start walking back in the direction from which they came. Their turnaround is immediate and they lose no time in switching directions.

Prove that at midnight each guard is back at his original tower.

Will The "New Federalism" Survive the New Court? The Wall Street Journal has given permission for me to reproduce the entirety of my op-ed in yesterday's edition marking the passing of Chief Justice Rehnquist, the Rehnquist Court, and perhaps also the "New Federalism" that he did so much to develop. [UPDATE: It is now available for free on here.]

William Rehnquist

September 6, 2005; Page A28

Last December, during my oral argument in the medical marijuana case of Gonzales v. Raich, the center chair normally occupied by Chief Justice William Rehnquist was empty. Without the towering, and sometimes glowering, visage of the Chief, with his no-nonsense demeanor and questioning, there was a palpable void in the courtroom that day. Now, with his passing, there is a void in the Supreme Court itself. Today we mourn the death of William Rehnquist. One day soon we may mourn the death of his legacy — the jurisprudence of the Rehnquist Court.

Even before becoming chief justice, often in lonely dissents, it was William Rehnquist who was most personally responsible for what is now called "the New Federalism" — the revival of the ideas that judiciary should protect the role of the states within the federal system and enforce the textual limits on the powers of Congress. Establishing the New Federalism took enormous effort and leadership by Rehnquist over many years. Now that legacy is in jeopardy.

At the founding, and for some 150 years thereafter, the limits on congressional power provided by the Constitution of 1789 — as modified by the Fourteenth Amendment — were enforced by the Supreme Court. According to the textual plan, Congress is, with few exceptions, confined to the express powers enumerated in Article One of the Constitution. While these express powers were understood as flexible, they were nonetheless limited. When the federal government was limited to its enumerated powers, the states were left to the exercise of their police powers, subject to the limitations imposed upon them after the Civil War by the Fourteenth Amendment.

The Founders' plan was more or less intact until the 1930s, when President Roosevelt and the New Deal Congress enacted a massive expansion of federal power. By the 1940s, the textual scheme of limited federal powers was effectively swept away by a Supreme Court dominated by appointees of President Roosevelt. In a series of landmark decisions, such as Wickard v. Filburn in 1942, the New Deal Court replaced the Constitution's textual scheme of limited federal power with a policy of judicial deference to any claim by Congress to regulate anything and everything with even a remote connection with the national economy.

By the early 1990s, even the requirement of a remote connection was giving way, as Congress began to regulate subjects that could only be described as "interstate commerce" by Lewis Carroll's Humpty Dumpty, who asserted (in a rather scornful tone) that: "When I use a word, it means just what I choose it to mean — neither more nor less." With no judiciary to provide a constitutional compass, Congress passed laws reaching activities such as possessing a gun near a school without even trying to show how the regulated activity had any conceivable connection with "commerce . . . among the several states."
* * *

But William Rehnquist had a constitutional compass. [to read the rest, click on "show"]

Related Posts (on one page):

  1. WSJ Column Now Online:
  2. Will The "New Federalism" Survive the New Court?
Why Isn't the Red Cross in NOLA?

Mark Kleiman has the answer.

Look, Up in the Sky . . .

It's a bird . . . It's a plane. No, it's super-precedent!

Specter said he also told Roberts that the 1973 landmark abortion rights case Roe v. Wade has been followed by 38 Supreme Court rulings meant to refine or clarify its guidelines, and he asked, "Is Roe a super-precedent?"(emhapsis added)

Beldar has more.

Bork's Advice for Roberts:

Robert Bork's advice for Senate hearings:

Don't write or say anything about the Constitution. Judge Roberts has already satisfied that requirement. The second: Don't commit your vote at the hearings on any issues. If you are drawn into a commitment to how you will vote, you'll only be ratifying the corruption of the confirmation process. And third, don't make it obvious that you think some of the senators' questions reveal that they haven't a clue about the Constitution or its interpretations.

Americans First:

Interesting (and entertaining) column on the challenges for modern liberalism by Andrew Seal, Editor of the Dartmouth Free Press, a liberal student newspaper. The primary reason I flag the article is for this passage, which cracked me up:

One thing is for sure: the strategies of the Old Left—the Left of the past four decades—are not working any more.

We cannot go back to the bibulous naïveté of our predecessors in the Flower Power generation. Flowers grow in shit, but they don’t get shit done. I’m sorry, but neither Janis Joplin nor Jean-Luc Godard can save the world. Probably not even Jacques Derrida could.

We also cannot do what the culture warriors did in the early ’90s during the political correctness wars, which was basically to browbeat all and sundry with their sanctimonious acrimony and acerbic self-righteousness. I believe strongly that liberal ideals reflect the values of many Americans, but that particular vintage of liberal indignation is not one of them.

The basic thesis is that the left has failed to move beyond the intellectual and political template that succeeded against Bork and needs to do a better job at speaking to Americans as Americans first, and interest groups second (Ex. "If Bush’s environmental policies are disasters-in-waiting, we must show how his irresponsibility harms America, not how it harms our green sensibilities."). I don't agree with all of it, but the general thrust of his advice to the left sounds basically correct to me.

More Anti-Kelo Backlash:

This time in Missouri.


Tuesday, September 6, 2005

Dumbest Fashion Trends:

Long term: Who would have thought that twenty years after I, as a teenager, thought it looked cool to put my baseball cap on backwards (was it a Beastie Boys thing? Who remembers...), that youths, and even some adults (saw a guy in his 30s yesterday), would still be doing it (though there seemed to be a break for a time in the late '80s and mid '90s). Folks, the bill is on the front for reason, to shade your face from the sun. And it's soooo unclassy. Can you imagine Cary Grant wearing a backwards baseball cap? Please ladies, boycott the gents who wear the cap backwards, or at least tell them how silly it looks, and end this travesty for good. Perhaps a simple, "you know, David Bernstein had that look twenty years ago," will do.

Short term: The half cardigan. Why on earth would you wear a sweater that only keeps the upper half of your torso covered? Every time I see this, it looks to me like someone's great aunt died before she could finish the sweater she was knitting for her beloved niece, but the niece wears it anyway as a tribute.

Disclaimer: Snarky comments about how I'm not exactly a fashion god will be deleted!

Headline of the Month:

"Suicide Grasshoppers Brainwashed by Parasite Worms." And it's quite accurate. Thanks to GeekPress for the pointer. Rated IS for Icky Science.

The ACLU, Communists, and Private Organizations:

One of the great things about blogging is that you don't need a news hook; you can write about whatever catches your eye. This post is about one such item, which I think is emblematic of three not uncommon errors in some liberal circles: A tendency to overextend constitutional norms from government action to private action; a tendency to overlabel action as McCarthyism or close to it; and a tendency to miss the real threat that Communism posed in its heyday.

It turns out (I didn't know this until last year) that in 1940, the ACLU formally barred Communists from leadership or staff positions, and either then or later took the position that it didn't even want them as members. And it also turns out that many people, including at least one First Amendment scholar whose work I much admire, have since then faulted the ACLU for this, calling it a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties." (In the late 1960s, there was even a strong internal ACLU movement to remove this bar, on the grounds that it was wrong from the outset.) Here are a few thoughts about this.

1. To begin with, an organization genuinely devoted to civil liberties shouldn't want its policy to be guided, even in part, by people who are committed to philosophies that are antithetical to those liberties, such as Communism and fascism. You can be dedicated to protecting Communists' right to speak, even though Communist doctrine dismisses free speech as bourgeois folly. But that doesn't mean that you should want them to help run your group.

2. What's more, this theoretical objection was amply borne out in the ACLU's then fresh history. In the 1930s, there were indeed some Communists, and more Communist sympathizers, in important positions at the ACLU. As one might expect, the Communists tried to bend the ACLU to the party line, for instance by making the ACLU soften its criticism of Communist attempts to violently suppress speech in the U.S.

And why not? Communists really weren't interested in protecting free speech; they were interested in defending Communism and the Soviets. (Joining groups and then influencing them to serve the Party's ends was standard procedure for the Communists, and they were apparently quite good at it.) And on top of that, with the Molotov-Ribbentrop pact, and the U.S. Communist Party's lockstep move away towards support for Nazi Germany — a position that was rightly anathema even to those who had been blind to Communism's many other sins — the dangers of influence by Communists were even clearer.

3A. On top of that, the ACLU was an organization that sought to change public opinion in favor of civil liberties. It's hard to do that when the public sees you as being under the influence of notorious enemies of liberty. The ACLU had been heavily criticized in the 1930s for this in the press, and a Congressional committee was preparing to criticize them for it further.

Of course, one can condemn organizations that surrender ethical principles for the sake of public relations — that bow to the unjust criticism of outsiders instead of explaining why the criticism was unjust. But here the criticism was in large measure well-founded, both ethically and factually. Ethically, the ACLU had no constitutional, legal, or moral obligation to keep people who adhered to anti-liberty creeds in its councils.

3B. And factually, there had indeed been Communists on the ACLU's board. There were also solid Communist sympathizers: The chairman of its board of directors was thought, even by many in the ACLU, to be in the Communist camp (whether or not he was a party member).

The ACLU's founding director and likely most influential official, Roger Baldwin, had long been an admitted supporter of communism as an economic system, and on balance an apologist for the Soviet Union. Though he criticized the Soviets at times, he had also praised the USSR as on balance a haven for liberty. His true break with the Soviets (which ultimately brought him around to pretty vociferous anti-Communism) came not with Stalin's ascent, not with the Ukrainian famine, not with the Terror and the show trials — he defended the Soviets even after that — but only in 1939, with the Molotov-Ribbentrop pact.

On top of that, Baldwin was on the record as having said that his commitment to civil liberties for supposed reactionaries was sheerly instrumental, just a tool for advancing the cause of communism. His struggle for free speech, he said, was just incidental to the class struggle, a useful tactic for furthering communist goals. When the working class took over, the resulting regime should be supported by any means necessary, including dictatorship. Dictatorship and suppression of civil liberties would be necessary to get to a socialist society, so such suppression is justified. That was the position of the founding director of the ACLU.

If you were an impartial observer of the ACLU in the 1930s, would you have trusted its commitment to genuine civil liberties, in the face of such evidence? Even if you accepted that Baldwin had changed his mind in 1939, wouldn't you expect at least some assurance that the ACLU would try to keep Communists from influencing its policy to meet their ends (which in 1940 were pro-Nazi ends as well as pro-Soviet ends)? If you were considering donating money, time, or effort to the ACLU, wouldn't you want to make sure that your donation wasn't diverted (and perverted) into serving the ends of totalitarianism, rather than liberty? It seems to me quite proper for the ACLU, a private ideological organization that had every constitutional, legal, and ethical right to pick and choose its leaders and administrators, to try to offer the public some such assurance.

* * *

Here's what I take away from this case study: First, we should remember that free speech principles affect private groups, especially private ideological groups, differently from the government. The government must hire people without regard to religion, but the Catholic Church may insist that its cardinals not be Protestants. The NAACP need not admit Klansmen. Such groups are entitled to exclude officials and members based on their ideology, in order to protect themselves both from internal subversion — in the sense of undercover diversion of a group to ends that diverge from its underlying purposes — and from justifiable public opprobrium.

Second, we must avoid the Reverse Mussolini Fallacy. That Mussolini made the trains run on time (if he did) isn't reason to like Mussolini; but that you dislike Mussolini isn't reason to dislike trains running on time. That McCarthy condemned Communism (which he often did through wrongful means) doesn't mean that there's McCarthyism — or even a violation of civil libertarian principles — whenever a group condemns Communists, or seeks to exclude them from its councils.

Third, the Communists really were a menace back then, and not just through espionage or plans for violent revolution. They also undermined legitimate groups, trying to turn them into fronts that would serve the Communists' (and to a large extent Stalin's) ends. That would be bad for the country, but it was also bad for the groups, including liberal or socialist groups. The ACLU majority of 1940 deserves praise, not condemnation, for recognizing this threat.

Opportunity for Katrina-Affected Students to Study in Israel:

Some details here. Several universities in Israel have English-language programs for foreign students. I thought this was worth pointing out because the Fall semester in Israel doesn't start until after the Jewish holidays end in late October, giving affected students the opportunity to reorganize their lives a bit, without delaying their academic careers.

[Puzzleblogger Kevan Choset, September 6, 2005 at 4:59pm] Trackbacks
Like Clerk, Like Judge:

As mentioned here before, John Roberts clerked for William Rehnquist. While Roberts would have been the first person to serve on the Supreme Court alongside a judge he clerked for, he will now be the first person to take the seat of a judge he clerked for.

Rehnquist himself clerked for Justice Robert Jackson. Interestingly, Rehnquist was the first justice since Justice Jackson to _____.

(I imagine there are a lot of correct answers that fit there, several of which are probably interesting. I have one in mind.)

Parent-Child Speech and Child Custody Speech Restrictions Sent Off to the Journals:

Glad to have that out of my hair. On to other things . . . .

Does God Dislike Poor People?

The American Family Association's Web site runs an item that includes this:

Rev. Bill Shanks, pastor of New Covenant Fellowship of New Orleans, also sees God's mercy in the aftermath of Katrina — but in a different way. Shanks says the hurricane has wiped out much of the rampant sin common to the city.

The pastor explains that for years he has warned people that unless Christians in New Orleans took a strong stand against such things as local abortion clinics, the yearly Mardi Gras celebrations, and the annual event known as "Southern Decadence" — an annual six-day "gay pride" event scheduled to be hosted by the city this week — God's judgment would be felt.

“New Orleans now is abortion free. New Orleans now is Mardi Gras free. New Orleans now is free of Southern Decadence and the sodomites, the witchcraft workers, false religion — it's free of all of those things now," Shanks says. "God simply, I believe, in His mercy purged all of that stuff out of there — and now we're going to start over again."

I've seen other similar statements online; and of course similar statements were made about 9/11 (the Falwell-Robertson abortion-made-God-mad item), AIDS being God's punishment on gays, and the like.

If this is so, then wouldn't it follow that God must really dislike poor people? After all, poor people generally bear the brunt of most natural disasters: It's harder for them to evacuate; they are less likely to have insurance; their assets are less likely to be diversified, so the economic damage is more likely to be severe for them; they are closer to the poverty line, so even small losses may harm them more than larger losses harm rich people; and so on. If you live in a poor country, you're much more likely to suffer from disasters than if you live in a rich country. If you're poor in any country, you're much more likely to suffer from disasters than if you're rich.

The same is in considerable measure true for wars, at least since World War II: Tragic as 9/11 was, the loss of life in America was far less than the loss of life in Rwanda, Uganda, Cambodia, and who knows how many other poor countries in recent decades. And it's true for AIDS and most other diseases: Rich gays in the U.S. are much more likely to survive AIDS than poor people — gay or straight, promiscuous or monogamous but infected by nonmongamous spouses or in other ways — in Africa or Asia.

So, which is it: Does God dislike poor people? Or might it be that disasters, wars, and diseases are actually not God's punishment for sin?

* * *

(Disclaimer for those who tend to read into posts things that the author hasn't written into them: I am not condemning all religious people, all Christian people, or even all people who believe that all things are sent by God; I am condemning those who argue that disasters, wars, and diseases are sent by God as punishment. Further disclaimer for the same people: I post this not because I think a majority of any particular religious group take these views, but because I think that a substantial number of people — even if only a small percentage of all people — believe such things, and these views deserve condemnation even if they are not majority beliefs within any religious group.)

Related Posts (on one page):

  1. More "God Punishing America Through Katrina,"
  2. Does God Dislike Poor People?
Tradeoffs, Self-Insurance, and Externalities:

A common refrain in response to the hurricane situation and the interruption in gas supplies that it has occasioned is the argument that this demonstrates the need to reduce our reliance on oil and gasoline, including providing incentives to get people out of their SUVs (I own one) and into smaller cars. It is argued that there are all these externalities associated with SUVs, such as pollution, lower gas mileage, etc. So, it is argued, we just want those SUV guys (I own a Pathfinder) to internalize their externalities. Policy conclusion: We should get rid of all the SUVs, right?

But then I heard historian Douglas Brinkley on Bill O'Reilly describing about his escape with his family from New Orleans after the hurricane. O'Reilly asked him to describe how he got out. I haven't been able to locate the transcript, so I'm going from memory, but his answer went something like this. "Luckily I own an SUV. So I was able to drive through the flooded streets and go up over curbs and road medians in order to avoid downed trees and power lines. After weaving through town, I finally got out to the highway and then drove straight to Houston." Now I haven't seen any data on this, but I am willing to bet that people who owned SUVs were much more likely to be able to escape New Orleans after the hurricane than those who owned hybrids (we know of at least net one family who wouldn't have been able to escape--Brinkley's). And, by self-insuring their ability to get out of the crisis zone, this of course reduced the number of people who have needed to be tended to in New Orleans, leaving more supplies for those who couldn't get out. More SUVs, it follows, equals more people able to exit the city. So the externality is actually created by those who could afford to purchase an SUV, but instead choose to indulge their pro-environment tastes not to, thereby relying on taxpayers and other victims to subsidize their decision. Policy conclusion: We should mandate that every American household purchase an SUV which they can use in the event of an emergency.

The point is more general. Every time it snows, I can get around in my SUV (that's one of the many reasons we bought an SUV in our family). Those hybrid drivers out there, by contrast, can't move until the streets get plowed. Yet the snow plows are paid for my tax dollars as well as theirs. Again, whereas I have self-insured against snow and internalized my costs of getting to work, the hybrid driver has again decided to externalize the costs of his choice by forcing me to pay for the snow plows that he needs and I don't. Again, policy conclusion: Mandate that every household own an SUV.

Of course, the real point is that there are tradeoffs to every policy. An energy policy that reduces SUV ownership will reduce energy consumption and pollution, but it also means that fewer people like Professor Brinkley and his family will be able to self-insure against a disaster like the hurricane and instead will be trapped in the city, participating in the horrible misery, and relying on taxpayers and others to help them.

Either way, there are externalities and subsidies. If we only examine some of the externalities and subsidies in isolation, we will be led to to a terribly incomplete understanding of the full policy consequences. One might say that the eventualities under which SUVs will really be beneficial are sufficiently rare that they are offset by the costs. Or one could say that even if the likelihood of the risk is small, the benefit of enabling many Brinkley families to be able to save themselves is sufficiently high that we are willing to allow them to make that choice. Or one could say that in general we prefer self-insurance to social insurance, in that social insurance creates too many moral hazard and adverse selection problems, like people buying small cars and then relying on tax payers to bail them out when it snows.

These are difficult tradeoffs to think about and I can't see that there is any obvious way to measure them in any meaningful sense, which requires us to fall back to a large extent on our intutions, which inevitably are going to differ from person to person. My personal priors are that I have a hard time saying that we should prohibit Brinkley from making the choice to buy an SUV, or heavily subsidize those who want to indulge their preferences for the environment at others' expense. But it is quite evident as well that many, many others disagree with me on this and would weigh the tradeoffs otherwise. But most importantly, we must recognize that those tradeoffs will, and must be weighed.


Monday, September 5, 2005

Where Does Roberts Stand on the Third Amendment?

I thought this was pretty funny, including a fictional quote from our fearless leader.

Computer Crime Law as a New Law School Course: I have been guest blogging over at Balkinization about the emerging field of Computer Crime Law. Here are the three posts so far, in the order they have appeared:
1. A Brief History of Cyberlaw.

2. The Case for A New Computer Crime Law.

3. Computer Crime Law: The New Doctrines.
  I plan a few more posts on the topic, including a post on practice opportunities.
Economics of Levees and Hurricanes:

Andrew Samwick points to several insightful analyses of the lessons of Katrina in terms of levee maintenance and lessons about hurricane preparedness.

More on Brown:

Orin's post on Brown's libertarianism prompts me to re-post a post of mine from July, which discussed an article by some political scientists that tended to confirm Orin's observations about Brown. According to the data reported there, Brown is substantially more "liberal" than the judges to whom she was compared in that study, not only on criminal justice issues, but also civil rights and liberties (if Orin is correct about her libertarianism, then it is probably the "civil liberties" portion of that formulation that accounts for her score). She is in the middle of that comparison group on economic liberties and labor issues.

The original post describing the article is here.

Why Roberts?

Why did the President decide to nominate Roberts for Chief? The first reason is obvious--the way things are shaping up, he seems like an easy confirmation.

But allow me to propose a second, more speculative possibility. A distinguishing characteristic of this President seems to be the faith he puts in his own personal judgements and assessment of people. Perhaps it is arrogance, perhaps it is that he truly is a better judge of character and ability than the rest of us, but he truly seems to believe that he has better judgment about others than anyone else around him. Or perhaps he wants someone who he thinks will be loyal to him and no one else (such as outside interests). It is similarly my impression that far more than most Presidents he relies on his personal assessments of people who he chooses for his inner circle, rather than their resumes or experience. Indeed, he chose Roberts notwithstanding his relatively short time on the bench. Roberts, of course, was selected by him as well. Let me suggest that Roberts therefore has the one necessary (but not sufficient condition) for being Chief--he had previously won the President's trust the first time around.

Recall, for instance, when he claimed to have seen into Putin's soul so as to be able to judge the man? It is also my impression (based in part on my time in the Administration) that when vacancies occur, this White House has tended to promote internally more than most administrations, even to the extent of promoting relatively junior people to relatively senior positions. When Roberts was appointed, it truly was a utter surprise, even to those very close to the White House who were reported to be closely involved in the selection process.

If I am correct in this assessment of the President's decision-making style, this would suggest that his next nomination would likely be from the crop of judges that he has appointed since becoming President. This would include Brown, Clement, or McConnell, but not more experienced luminaries such as Luttig, Jones, or Wilkinson.

Will Bush Nominate Janice Rogers Brown?: A lot of people seem to think so, but on balance I find it less than likely. While Brown has a reputation as an "extreme conservative," it's more accurate to say that she is a hard core libertarian. A hard core libertarian is not likely to vote in a consistently conservative way, which I think makes it less likely that Bush will nominate her to the Supreme Court.

  For example, I think Brown would be more liberal than any sitting Supreme Court justice on questions of criminal law and procedure, a subject that may carry over to the war on terror and the scope of executive power. Criminal law cases occupy maybe 25% of the Supreme Court's docket, and my quick review of a few Brown opinions suggests that Brown would side on the "liberal" side (generally speaking, more pro-defendant than the norm) in such cases. The handful of Brown cases I read in the area of criminal law have a William O. Douglas flavor to them; they're passionate about the meaning and importance of the Bill of Rights, and very critical of what she sees as the modern Supreme Court's watering down of its protections.

  An example is Brown's separate opinion in People v. McKay, 27 Cal.4th 601, 117 Cal.Rptr.2d 236 (2002), in which she offered the following take on the Fourth Amendment in a case about an arrest of a biker for cycling the wrong way down a one-way street:
  . . . The framers [who enacted the Fourth Amendment] sought to preclude "the petty tyranny of unregulated rummagers." (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn. L.R. 349, 411. The first clause of the Fourth Amendment issues a global command: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The second clause--specifically prohibiting the issuance of a warrant except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"--addresses the narrower compass of traditional search warrants "for contraband, stolen goods, and the like." (Amar, Fourth Amendment First Principles (1994) 107 Harv. L.R. 757, 765, fn. omitted.) Its purpose was probably not to make warrants mandatory, but to limit the opportunity of the executive to obtain warrants in the first place. (See Taylor, Two Studies in Constitutional Interpretation (1969) pp. 38-50.)
  Unfortunately, the Supreme Court's modern Fourth Amendment jurisprudence gives new vigor to petty rummagers. In analyzing searches incident to arrest, the court has tended to equate probable cause with reasonableness, but these terms "serve distinct functions, which are lost by homogenization of the legal vocabulary." (Gramenos v. Jewel Companies, Inc. (7th Cir.1986) 797 F.2d 432, 442.) In Whren, supra, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, Justice Scalia authored a unanimous opinion in which the Supreme Court ruled that when a police officer observes a traffic violation, stopping the vehicle is reasonable and the officer's subjective motivation plays no part in the Fourth Amendment analysis. (Id. at pp. 810, 813, 116 S.Ct. 1769.) Whren essentially legitimized pretextual stops--the sine qua non of unjustified and arbitrary law enforcement. A pretext stop occurs when "the justification proffered by the State for an arrest is legally sufficient, but where the *632 arresting officer was in fact making the arrest to search the arrestee incident to arrest for a reason which was legally insufficient to support the arrest." (Burkoff, The Pretext Search Doctrine: Now You See It, Now You Don't (1984) 17 U. Mich. J.L. Reform 523, 523.)
  The court has clearly seen the need to curb police discretion only when law enforcement agents search and seize without probable cause (Prouse, supra, 440 U.S. at p. 663, 99 S.Ct. 1391), and when police operate under vague enforcement standards which confer a virtually unrestrained power to arrest. (Kolender v. Lawson (1983) 461 U.S. 352, 360, 103 S.Ct. 1855, 75 L.Ed.2d 903 (Kolender ).) In Prouse, an officer randomly stopped the defendant to check his driver's license and registration. The United States Supreme Court held that subjecting drivers to random checks, without reasonable suspicion, is unreasonable under the Fourth Amendment. (Prouse, at p. 663, 99 S.Ct. 1391.) The Prouse court could not "conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. [Moreover,] [t]his kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." (Id. at p. 661, 99 S.Ct. 1391.) Whren distinguished Prouse on the ground that the spot-checking officer did not have " 'probable cause to believe that a driver [was] violating any one of the multitude of applicable traffic and equipment regulations' " (Whren, supra, 517 U.S. at p. 817, 116 S.Ct. 1769), whereas in Whren, the arresting officer did have probable cause to believe that the defendant had violated a traffic law.
  . . . The United States Supreme Court purportedly believes that " 'observed [traffic] violations' ... afford the ' "quantum of individualized suspicion" ' necessary to ensure that police discretion is sufficiently constrained.'' (Whren, supra, 517 U.S. at pp. 817-818, 116 S.Ct. 1769.) In reality, an officer's discretion in deciding whom to stop is not constrained at all by a probable cause prerequisite because the officer need only point to a minor traffic violation to negate a claim of unfettered arbitrariness. (1 LaFave, Search and Seizure (3d ed. 1996) § 1.4(e), p. 123.) Due to the widespread violation of minor traffic laws, an officer's discretion is still as wide as the driving population is large. In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum "crimes"--many too trivial even to be honestly labeled infractions. They are nevertheless public offenses for which a violator may be arrested. Since this indiscriminate power to arrest brings with it a virtually limitless power to search, the result is the inevitable recrudescence of the general warrant. (Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses (1997) 16 Pace L.Rev. 97, 146.)
  An officer's observation of a very minor offense authorizes him to stop the car (Whren, supra, 517 U.S. at p. 817, 116 S.Ct. 1769) or bicycle (United States v. McFadden (2d Cir.2001) 238 F.3d 198), arrest the driver or rider (Atwater, supra, 532 U.S. at p. 354, 121 S.Ct. 1536; McFadden, at p. 204), search the driver or rider ***262 (Robinson, supra, 414 U.S. at p. 235, 94 S.Ct. 467), search the entire passenger compartment of the car including any package inside (Belton, supra, 453 U.S. at p. 460, 101 S.Ct. 2860), impound the car and inventory all of its contents (Colorado v. Bertine (1987) 479 U.S. 367, 374, 107 S.Ct. 738, 93 L.Ed.2d 739), and imprison the offender for up to 48 hours (Atwater, at p. 352, 121 S.Ct. 1536; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49).
  Thus, after Atwater, the notion that "[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation" (Prouse, supra, 440 U.S. at p. 662, 99 S.Ct. 1391) is simply no longer true. In fact, the same rules apparently apply to those who walk, bicycle, rollerblade, skateboard, or propel a scooter. Probable cause is ubiquitous.
  Given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, the probable cause requirement is so diluted it ceases to matter, "for ... there exists 'a power that places the liberty of every man in the hands of every petty officer,' " precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. (1 LaFave, Search and Seizure, supra, § 1.4(e), p. 123, quoting 2 Wroth & Zobel, Legal Papers of John Adams (1965) 141 142.)
  (emphasis mine)

  It's hard to know if Brown's libertarian wordview would carry over to war on terror questions, but they might. Given the perceived importance of such questions in the future, I think it's somewhat less than likely that Bush would nominate Janice Rogers Brown.

  UPDATE: Is People v. McKay unrepresentative of Brown's views in the area of crimal law? In the comments, Edward A. Hoffman argues that it is.
Why a New Nomination is Necessary: Marty Lederman weighs in at SCOTUSBlog. Sounds right to me.
Chief Justice Roberts: As I expected, President Bush has nominated John G. Roberts for the position of Chief Justice of the United States. It's an excellent move: Roberts is a natural for the job. Moreover, Roberts should be easily confirmed for the Chief slot. There wasn't particularly significant opposition to Roberts when he was nominated to replace O'Connor; the main argument of Roberts opponents going into this week's confirmation hearings was that Roberts might upset the balance of the current Supreme Court by voting more like Rehnquist than O'Connor. With Roberts replacing Rehnquist, however, this argument doesn't really go anywhere.

  The key question now is who the President will nominate to fill O'Connor's slot. The choice is entirely the President's to make, of course, so it's hard to predict. Not that this will stop anyone from trying.
Roberts Nominated to Be Chief:

President Bush on Monday nominated Judge John Roberts to succeed the late William H. Rehnquist as chief justice of the United States. That was fast. (HT: Jurisprude in a Comment to the prior post).

Now I'm really wondering--if Roberts is being nominated to replace Rehnquist, does that mean that O'Connor is still on the Court until her successor is nominated and confirmed?

Looks like maybe Sasha has a job after all.

O'Connor's Resignation and Rehnquist's Death:

Some time back, we had a debate here (I think Jim raised it) that touched upon the legal effect of O'Connor's resignation letter. Here's my question--in light of the fact that there are two vacancies, could O'Connor simply announce today that she is withdrawing her earlier letter announcing that she was retiring effective upon the "nomination and confirmation of my successor" and simply state, "My resignation is now effective upon the nomination and confimation of Justice Rehnquist's successor"?

The term "Chief Justice" is not mentioned in Article III. I am not a Supreme Court jock so I'm not sure where that honorific arises (presumably in legislation somewhere or Court rules), but why couldn't they simply designate Stevens as acting chief, and allow O'Connor to stay on the Court effective on the confirmation of Rehnquist's successor, thereby keeping the Court at is full 9 member strength pending a replacement for Rehnquist?

What is the legal relevance of O'Connor's resignation letter, and could she simply withdraw or amend it prior to the appointment of "her" successor? Is Roberts truly "her" successor, or is the legally-relevant fact whether there is a vacancy on the court, as opposed to the notion of vacancies in particular seats? Isn't the legally-relevant act here the appointment of the successor, not the resignation letter itself?

More generally, it seems to me that there is a peculiar ambiguity in the law when legal obligations are to be triggered (or are thought to be triggered) by private actions, such as the submission of a resignation letter by a member of the Court. A few years ago I published an article on the Presidential Transition Act which asked the question about when an individual was to be named the "President-elect" for purposes of the Presidential Transition Act. The executive branch official in charge of making the determination suggested that one factor to determine would be whether the opposing candidate made a concession. If you will recall, in the 2000 election, Gore almost conceded late on election night, but then changed his mind. Would it have made a legal difference if he had actually conceded? If he did concede then later changed his mind, would that have undone the "President-elect" designation for Bush? I argue that it would not have, as there is no good argument for having the authority of naming the President-elect, a legal term, be determined by a private party (there one of the candidates).


SCOTUS Blog has more.

Brooks on the Reaction to Katrina: I'm not sure I agree with him, but David Brooks has an interesting piece in the Sunday NYT about the ripple effects of Hurricane Katrina on the American psyche.
Greenhouse on Souter on Rehnquist: In Monday's New York Times, Linda Greenhouse has a piece that includes comments from a rare interview with Justice Souter that sheds some light about the last Supreme Court term and the health of Chief Justice Rehnquist:
  Justice David H. Souter said he was flabbergasted to learn of the chief justice's death. He said that while Chief Justice Rehnquist had appeared extremely weak when he returned to the bench in March after an absence of more than four months - "and I wondered whether he would be able to finish the term" - the chief justice's health had then appeared to turn around.
  "He had an amazing few months" and his decision at the end of the term not to retire had not seemed unreasonable, Justice Souter said.
  Justice Souter, speaking by telephone from his home in New Hampshire, said there had been an "unconscious anxiety" throughout the last term, which had been under way only a month when the chief justice learned he had thyroid cancer and began intensive treatment with chemotherapy and radiation.
  It was months before the other justices saw him again. Even after he returned to the court, the chief justice did not discuss his condition or prognosis with his colleagues.
  Unable to take food or drink orally because of a tracheotomy - a hole in his throat that enabled him to breathe after the cancer impinged on his windpipe - the chief justice would absent himself from the justices' communal lunches and morning coffee.
  "He was so unobtrusive about it, and made it easy for us," Justice Souter said. "And yet it was there all the time. It had to weigh on us."
  Link via Howard.

Sunday, September 4, 2005

A Law Clerk Remembers: Lawprof Rick Garnett, who clerked for Chief Justice Rehnquist in OT96, offers a personal reflection on what it was like to clerk for Rehnquist over at Slate.
Recess Appointments:

Fellow lawprof Tuan Samahon asked me to post this; I express no opinion on its merits, but it struck me as interesting:

Is the Senate still in recess today (Sunday, Sept. 4, 2005) such that the President could exercise his intrasession recess appointments power to name a temporary replacement for the Chief Justice? The August recess (August 1 to September 5) lasts until Tuesday, when the Roberts nomination will occur. There was a brief 39 minute emergency session of the Senate last week, but the Senate then adjourned again. Are we still in recess such that the POTUS could appoint a recess appointee to the Rehnquist vacancy, either the presumptive permanent nominee or a caretaker? Obviously, there is precedent for such recess appointments to the Supreme Court (Brennan, Stewart, Warren, Holmes, among others). In light of the risk of starting the term short a justice, it might well be justified. And politically, it might be shrewd for the Administration to so do.

Rehnquist was the first justice to die in office since Jackson in 1955.

Before William Rehnquist's death on Saturday, one would have to go back to 1955 to find a Supreme Court justice dying in office, Robert Jackson. Jackson was succeeded as an Associate Justice by the second John Harlan, who begat Rehnquist, who begat Antonin Scalia (when Rehnquist was elevated to Chief Justice in 1986).

Between the deaths of Jackson and Rehnquist, the 19 resigning justices lived an average of 8 years and 2 months after resigning, with Hugo Black dying 8 days after retiring and John Harlan dying three months after retiring. So of the four justices serving closest to their death since 1955, three once served in the same Associate Justice slot: Jackson, Harlan, and Rehnquist, a slot currently held by Scalia.

William Hubbs Rehnquist: Two quick thoughts about the passing of Chief Justice Rehnquist: one thought about Rehnquist's legacy, and the other about his likely replacement.

  First, Rehnquist's legacy. Rehnquist was probably the most underrated Justice of the last few decades. He was a brilliant man, but he wasn't showy. His opinions tended to be short, spare and minimalist; they answered the question presented and little more. Especially as Chief, Rehnquist didn't view legal opinions as opportunities to make grand jurisprudential statements. This is speculation, and should be discounted accordingly, but my guess is that there were two main explanations for Rehnquist's understated approach. The first was simple personal modesty. Rehqnuist just wasn't a showy person. The second reason, and perhaps the more interesting one, is that Rehnquist was very much a legal realist. He knew that the Court wasn't likely to be bound by grand jurisprudential statements expressed in prior opinions, so he figured there wasn't much point in making those statements.

  Whatever the reasons for it, Rehnquist's understated approach didn't help his standing among academics and other outside court-watchers. It's the jurisprudential nuggets and their broad implications that observers savor the most. The idea that the Justices on the Supreme Court are engaged in a grand struggle between opposing theoretical commitments makes for good entertainment, and provides lots of fodder for law review articles. As Chief Justice, at least, I don't think Rehnquist saw the work of the Court that way. As a result, his opinions often didn't give the academics and other court watchers what they wanted to see.

  Finally, a brief note about Rehnquist's likely replacement. My guess is that Bush will want John Roberts to take the Chief slot. For a number of reasons, Roberts is a natural for the job. Lyle Denniston speculates that nominating Roberts for the Chief spot is improbable given the timing of his confirmation hearings, scheduled to begin next week. I look at it a bit differently. My sense is that the Bush team is pretty savvy about judicial issues. They presumably know that whatever the near-term practical difficulties that may come with renominating Roberts for the Chief slot, the long-term impact on the Court will far outweigh them. So I would expect Roberts to end up with the nomination for the Chief position.