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Saturday, July 26, 2008

Attacks on Jewish and Black Conservatives:

Joe Klein's outburst about the "Jewish neocons" allegedly pulling John McCain's strings on behalf of Israel reminded me that I've been meaning to blog about the fact that liberals, including (and sometimes especially) Jewish liberals increasingly use the charge of "dual loyalty" to try to discredit, and thus silence, Jewish conservatives.

This is especially clear from Klein's piece, because unlike many writers, he actually shows an understanding of neoconservatism, which he describes, in roughly accurate terms, "as unilateral bellicosity cloaked in the utopian rhetoric of freedom and democracy." There is nothing uniquely "Jewish" about this ideology, and the neocons have applied to everything from the Salt II treaty to Grenada to Bosnia to Iraq, usually in circumstances that have nothing to do with Israel--as I have written, "if Israel suddenly was at complete peace with its neighbors and was no longer an issue of foreign policy concern, I would bet that all of the Jewish neoconservatives would remain neoconservatives, and continue to promote neoconservative views on foreign and domestic policy." And, as I've noted previously, Jews are not overrepresented among neoconservatives relative to their prominence as public intellectuals generally.

The purpose, then, of associating "neocons" with Jews, and neoconservatism exclusively or primarily with concern for Israel, is to delegitimize conservative Jews, just as conservative blacks are called "Uncle Toms" and whatnot. As the National Review media blog notes, "conservatives who aren't 'neo' in any appreciable way — say, Jonah Goldberg — are denounced as 'neocons' based mostly on their surnames."

One interesting aspect of all this is that the standard left-wing "Uncle Tom" attack on black conservatives accuses them of being insufficiently supportive of "their people," while the emerging attack on Jewish conservatives accuses them of being too supportive of "their people" and thus having dual loyalties. Hmm.

UPDATE: In reaction to a previous, more outlandish Klein screed, Shmuel Rosner of Ha'aretz pointed out quite aptly that liberal Jews also argue that the policies they support will help Israel. [And given that Israel is very popular with Americans in general, and American Jews in particular, it would be foolhardy to argue that a policy is good because it would hurt Israel; even the Chomskys and Finkelsteins of the world usually claim to have Israel's ultimate best interests at heart.] But, Rosner points out, it's only the conservative Jews, or at least the ones that are hawkish on foreign policy, including Israel-related foreign policy that get accused by the likes of Klein of dual loyalty:

Here's a little mind game with which to demonstrate my point. Imagine Klein, back in the late Nineties, writing this:

"The fact that a great many Jewish officials in the Clinton administration plumped for this Oslo process between Israel and the Palestinians, and now for an even more foolish summit at Camp David between Ehud Barak and Yassir Arafat, raised the question of divided loyalties: using U.S. diplomatic leverage and money, to make the world safe for Israel."

Can you imagine him writing such thing? Can you imagine him blaming the many-many Jewish members of the Clinton administration for tilting the American agenda toward the peace process only because they want to help Israel?

If you can - Klein is being honest. If you can't - Klein is just using religion to denounce people with whom he has policy differences.

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Randy Pausch Dies:

If you missed it, Randy Pausch of The Last Lecture fame, has succumbed to pancreatic cancer. Here's the full lecture. I watched the whole thing when it first came around and it really is quite touching and powerful. The two stories from the Washington Post are here and here. Scott Johnson has more here. He really seems like an extraordinary man, father, and professor.

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Social Policy Hindsight Thought Experiments:

In thinking about the empirical analysis of social policies, I've thought it sometimes useful to take the actual results of the policies and then look back and think whether the policy still would have been adopted had the architects of the policy known what the results would be. The answer might still be yes, but thinking about the costs and benefits through this lens helps to illuminate the trade-offs without the inherent biases that people seem to have in admitting that they were mistaken in the first place.

For instance, had the architects of Prohibition known the full costs and benefits that resulted from Prohibition, would they have still supported it? Perhaps yes, but surely the full range of unintended consequences of Prohibition were not fully seen at the time, and if they had been it is not obvious that they would have supported it (and of course they actually ended up repealing it). I recall seeing this same analysis of welfare policy prior to welfare reform in the 1990s: had the architects of the Great Society welfare programs known the unintended consequences that would flow from welfare reform, would they have still supported it?

Another one I wonder about is whether had the Federalists been able to anticipate the course of American constitutional history, would they have nonetheless opposed the inclusion of a Bill of Rights in the Constitution (Madison changed his mind, of course)? It is an interesting thought experiment to think about how American history would have been different had the Federalists prevailed and no Bill of Rights would have been added to the Constitution. One suspects, for instance, that the Supreme Court would have spent most of its time enforcing structural constitutional restrictions and enumerated powers rather than individual rights provisions. Whether that would have been better or worse is an interesting question--it certainly would have been different.

In this vein I offer a provocative essay by Mary Eberstadt on birth control and the sexual revolution. She writes about it through the lens of the Papal Encyclical Humanae Vitae, but I'm interested in it here as a non-religious sociological analysis. My guess is that most readers will conclude that the sexual revolution was a net positive for society. Certainly there were major social and widespread individual benefits from the sexual revolution and birth control technology, and one suspects that many of these social benefits were unforeseen at the time as well. Increased personal autonomy, freedom, and social and economic opportunities for women are certainly important benefits of access to birth control that most of us will easily recognize. Nonetheless, while most readers will conclude that the benefits overall outweighed the costs, Eberstadt frames the issue in a way that certainly caused me to think more deeply about the full costs and benefits of these social developments:

Let’s begin by meditating upon what might be called the first of the secular ironies now evident: Humanae Vitae’s specific predictions about what the world would look like if artificial contraception became widespread. The encyclical warned of four resulting trends: a general lowering of moral standards throughout society; a rise in infidelity; a lessening of respect for women by men; and the coercive use of reproductive technologies by governments.

In the years since Humanae Vitae’s appearance, numerous distinguished Catholic thinkers have argued, using a variety of evidence, that each of these predictions has been borne out by the social facts.

Speculation on the causes of such broad social trends is difficult, of course. Nonetheless, much of the rest of the article is concerned with laying out the empirical case that each of these four developments have actually come about. And reading the list of predicted effects (even before considering the empirical evidence Eberstadt marshals) it seems accurate to me that these are unintended consequences that have in fact come about as side-effects of access to artificial birth control. As Eberstadt stresses, most of this sociological evidence has been developed by secular scholars.

In the end, Eberstadt can be criticized for failing to fully account for the benefits of the sexual revolution, so it is not clear that Humanae Vitae has been "vindicated" (of course, this is a short magazine piece and most readers will easily be able to recognize the benefits of these developments to weigh them in the balance). Nonetheless, I thought it a fresh way of thinking about one of the major social developments of the Twentieth Century as it causes us to think about some of the costs associated with developments that are generally thought to be socially beneficial.

263 Comments

Is Hayek Still Relevant?

Jesse Larner has an interesting and much talked-about article on F.A. Hayek in the left-liberal journal Dissent (for links to other commentary on Larner's piece, see here). Larner gives Hayek credit for his pathbreaking critique of socialist central planning. But he argues that Hayek's thought is largely irrelevant today.

To very briefly summarize Hayek's two most important ideas, he argued that socialism can't work as an effective system for producing and distributing goods because it has no way of aggregating the necessary information about people's wants and needs. By contrast, the price system of the market is a very effective method for collecting and using information about people's preferences and the relative value of different goods. Hayek's 1945 article "The Use of Knowledge in Society" is the best short statement of this argument. Hayek also argued that government control of the economy under socialism necessarily leads to the destruction of democracy and personal freedom. The central planners' control of the economy enables them to crush potential opposition and strangle civil society. This, of course, was the main argument of Hayek's most famous book, The Road to Serfdom (1944).

Larner concedes the validity of both of these Hayekian claims. But he suggests that they are largely irrelevant today because the modern left has mostly abandoned central planning and because Hayek failed to recognize that "collectivism" could be a "spontaneous, nongovernmental, egalitarian phenomenon," not just a totalitarian order imposed by the state. He also suggests that "Hayek doesn’t seem to grasp that human beings can exist both as individuals and as members of a society, without necessarily subordinating them to the needs of an imposed social plan (although he acknowledges that the state can legitimately serve social needs, he contradictorily views collective benefits as incompatible with individual freedom)."

Larner makes some defensible points. For example, he is right to imply that Hayek's arguments are more compelling as a critique of full-blown central planning than of more modest forms of government intervention. It is also true that full-blown economic central planning has a lot less support among left-wing intellectuals today than fifty or sixty years ago. Nonetheless, Hayek's ideas are far more relevant to our time than Larner thinks.

I. The Persistence of Central Planning in Left-Wing Thought.

Although the modern mainstream left no longer favors central planning of the entire economy, many left-wingers do favor government control of large parts of the economic system. Most European leftists and a good many American ones favor government control of the health care industry, which constitutes some 10-15% of the economy in advanced industrialized society. Some forms of government planning are favored not only by left-wingers but also by many moderates and conservatives. For example, government owns and operates some 90% of the schools in Western Europe and the United States. However much we take public education for granted, it still represents the socialization of a vast swathe of the economy.

In addition, many mainstream liberals such as Cass Sunstein and Supreme Court Justice Stephen Breyer (as well as some conservatives and moderates) favor giving broad regulatory authority to "expert" government bureaucrats. This is not quite the same thing as government ownership of large enterprises. But it has important ideological affinities with it, to the extent that both policies rely on central planning by expert government bureaucrats. Hayek's arguments in "The Use of Knowledge in Society" are certainly relevant as potential critiques of these various forms of planning - both those that involve government ownership of large enterprises in health care and education and those that rely on regulations administered by expert bureaucrats. If Hayek is right, all these planners and experts don't know as much as they think they do, and certainly can't aggregate knowledge as effectively as the free market can.

Finally, it's worth noting that even full-blown socialism isn't as completely dead as Larner assumes. For details, see my September 2007 post on "Why the Debate Over Socialism Isn't Over."

Fundamentally, most liberals and leftists still look to the state to plan large portions of the economy and other aspects of our lives. So too do many conservatives and moderates, as witness the rise of "big government conservatism" under George W. Bush. Today's advocates of government planning are more modest in their ambitions than the mid-twentieth century socialists whom Hayek criticized. But they are not modest enough to make his arguments irrelevant.

II. Hayek and "Voluntary" Collectivism.

Larner also criticizes Hayek for ignoring the possibility that "collectivism" could be voluntary rather than imposed by the state. He suggests that Hayek was wrong to ignore the thought of socialist anarchists such as Proudhon and Kropotkin, who favored communal enterprise without state control.

Much depends on what is meant here by "collectivism." To the extent that it simply means voluntary cooperation between individuals and groups in civil society, Hayek not only didn't ignore it, he was a great advocate of it. Throughout nearly all his major works, Hayek stressed the importance of voluntary social cooperation and repeatedly emphasized that individuals can't progress or even survive for long without civil society institutions and traditions that are the product of cooperation. Hayek's famous theory of "spontaneous order" was of course based on the idea that society progresses through the development of social norms and customs produced by voluntary cooperation in civil society. Hayek favored free markets and strict limits on government power in large part because he thought that they fostered such voluntary cooperation better than government planning does. Far from denying that "human beings can exist both as individuals and as members of a society, without necessarily subordinating them to the needs of an imposed social plan," Hayek wrote that:

[T]rue individualism affirms the value of the family and all the common efforts of the small community and group . . . [and] believes in local autonomy and voluntary associations . . [I]ndeed, its case rest largely on the contention that much for which the coercive action of the state is usually invoked can be done better by voluntary collaboration.

Hayek, "Individualism: True and False," in Individualism and Economic Order (1948), pg. 23

Larner is right to point out that Hayek ignored the socialist anarchists in his writings on socialism. But he would not have objected to them in so far as they advocated the formation of purely voluntary communities based on socialist or egalitarian principles, such as the Israeli kibbutzim. Indeed, Hayek, like John Stuart Mill, emphasized the importance of social experimentation in voluntary civil society. In his essay "Why I am not a Conservative," Hayek criticized conservatives for their excessive suspicion of change and new ideas. Few other libertarians would disagree.

Conflict between Hayekian libertarians and advocates of voluntary collectivism arises when one asks what we should do if it turns out that most people don't want to live in a collectivist commune, but would prefer a "capitalist" lifestyle instead. This is exactly what happened in the case of Israel's kibbutzim, the most successful modern experiment in voluntary collectivism. If voluntary collectivists are willing to accept this result, then there is no major disagreement between them and most libertarians, Hayek included. If, however, they prefer to use state or private violence to force dissenters into the communes against their will, then this form of socialism is no longer voluntary. Unfortunately, real-world socialist anarchists often chose the path of violence when faced with this contradiction between their commitment to collectivism and their opposition to state coercion. This is exactly what happened when socialist anarchists achieved a high degree of influence in 1930s Spain, arguably the movement's greatest period of success.

Perhaps more importantly, advocates of socialist anarchism and other forms of voluntary collectivism have never been more than a minor part of the political left as a whole. The vast majority of left-wing intellectuals (to say nothing of left-wing political leaders) favor a high degree of government control of the economy and society. If they have even heard of voluntary collectivism, they don't have much sympathy for it. Indeed, they probably have a lot less sympathy for it than Hayek would have.

I don't claim that Hayek was right about everything or that he perfectly foresaw our situation today. To the contrary, he made his share of mistakes. But his most important arguments haven't lost their relevance.

59 Comments

Friday, July 25, 2008

There's Lots of Oil Up There:

A new report from the U.S. Geological Survey concludes that there are substantial untapped oil and gas reserves in the Arctic, perhaps amounting to as much as one-fifth of global supply. As the NYT reports:

Oil companies have long suspected that the Arctic contained substantial energy resources, and have been spending billions recently to get their hands on tracts for exploration. As melting ice caps have opened up prospects that were once considered too harsh to explore, a race has begun among Arctic nations, including the United States, Russia, and Canada, for control of these resources.

The geological agency’s survey largely vindicates the rising interest. It suggests that most of the yet-to-be found resources are not under the North Pole but much closer to shore, in regions that are not subject to territorial dispute. . . .

The assessment, which took four years, found that the Arctic may hold as much as 90 billion barrels of undiscovered oil reserves, and 1,670 trillion cubic feet of natural gas. This would amount to 13 percent of the world’s total undiscovered oil and about 30 percent of the undiscovered natural gas.

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K Street Blues:

The infamous "K Street Project" was really nothing new in Washington D.C. I witnessed this sort of thing firsthand before the GOP took over Congress -- and it hasn't gone away. As Kimberly Strassel reports, the new majority throws its weight around on K Street just like the old majority.

Meanwhile, there's hope that two ethically challenged practitioners of politics-as-usual -- Alaska's Rep. Don Young and Senator Ted Stevens -- are in trouble.

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Ninth Circuit Dismisses California Waiver Suit:

Today the U.S. Court of Appeals for the Ninth Circuit dismissed California's challenge to the Environmental Protection Agency's denial of California's request for a waiver of preemption of the state's greenhouse gas emission vehicle emission controls. In a brief order, the Court explained that the letter from EPA Administrator Stephen Johnson to California Governor Arnold Schwarzenegger informing him of the waiver denial was not, itself, a reviewable final action subject to judicial review. This does not end the litigation over California's waiver request, however. Rather the battle shifts to the U.S. Court of Appeals for the D.C. Circuit, where California may press its challenge to the EPA's Federal Register notice formally denying the waiver request. This is a defeat for California nonetheless, as the state surmised (with some reason) that the Ninth Circuit would provide a friendlier forum for the Golden State's claim.

Related Posts (on one page):

  1. Ninth Circuit Dismisses California Waiver Suit:
  2. Jurisdictional Jousting in California Waiver Suit:
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UCLA Law Review Second Amendment Symposium:

I'm glad to say that, in the wake of the Heller decision, the UCLA Law Review will be putting on a symposium on the Second Amendment and related matters. The symposium will be Friday, January 23, 2009, and the articles will be published in the law review a few months later.

Our tentative participants are Phil Cook, Saul Cornell, Bob Cottrol, Dennis Henigan, Don Kates, Gary Kleck, David Konig, Sandy Levinson, Jens Ludwig, Nelson Lund, Joyce Malcolm, Mark Tushnet, Adam Winkler, me, and I hope a few others. Should be an interesting, balanced, and productive event, and a great conference volume.

(This was originally posted this morning, but I've reposted it because comments were for some reason not working on the original post.)

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The New Housing Bill May be Much More Expensive Than it Looks.--

In the Wall Street Journal editorial on the new housing bill is this ominous paragraph:

Likewise, the bill's $300 billion to refinance and insure distressed loans through the Federal Housing Administration will supposedly cost just a few billion dollars. That assumes few homeowners and lenders will sign up for the program because lenders will have to take a 10% haircut to be eligible. If no one needs this program, why is it there? If lenders do take advantage, they're bound to dump their worst loans on the feds. So as with the Fan and Fred bailout, the FHA guarantee will be either superfluous or much more expensive than we're led to believe.

From this account, I can’t tell exactly what the bill provides. Perhaps a knowledgeable VC reader can decipher the exceedingly complex statute.

Could this bill really allow banks to get the FHA to guarantee all its worst loans at 90% of their original value, even loans worth only a half or a third of their original value? Then if the homeowner defaults, the bank gets paid and the homeowner still loses his or her home. I doubt that the bill could be that silly.

$300 billion is a lot of money, representing over a quarter of all US income tax receipts in 2005.

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Ave Maria and The ABA:

I haven't followed the Ave Maria Law School situation that closely. But I know it is of general interest to readers, so I pass along without commentary this article by R. Emmett Tyrell on the ABA's recent review of Ave Maria.

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New Zealand Judge Orders Name Change for Girl:

The New Zealand Herald reports,

A Family Court judge said a New Plymouth couple burdened their child with a "social disability and handicap" when they named her "Talula Does The Hula From Hawaii".

Judge Rob Murfitt ordered temporary court custody for the 9-year-old to ensure that a proper name was found for her.

The girl said she was so embarrassed that she had not revealed her name to any of her friends.

"She fears being mocked and teased, and in that she has a greater level of insight than either of her parents," said Judge Murfitt.

I assume that "temporary court custody" means temporary legal authority over the child, and not temporary physical custody (since such a change in physical custody would be unnecessary and pointlessly harmful and expensive).

New Zealand's Child Youth and Family service reports that, in its view, "the name a parent chooses for a child does not constitute a care and protection issue in itself," though "if a child suffers serious bullying as a result of his or her name, this may lead on to possible notifications through the youth justice system." On the other hand, it turns out that while "Number 16 Bus Shelter, Violence[,] and Benson and Hedges (twins)" have been accepted, "other names, including Fish and Chips, Yeah Detroit, Stallion, Twisty Poi, Keenan Got Lucy and Sex Fruit, have been blocked by registration officials."

Legislation on the Internal Affairs website says names must adhere to the following criteria;

* Must not cause offence to a reasonable person

* Must not be unreasonably long (less than 100 characters long including spaces)

* Must not be without adequate justification, be, include or resemble and official title or rank

* Does not use punctuation marks, brackets or numbers

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Internet Book Self-Publishing Service Not Liable for Defamation in the Books:

So holds Sandler v. Calcagni, a federal district court decision from last week; the court applied Maine law, but in a way that's likely to be echoed in other cases.

Historically, book publishers have been held liable for defamation in the materials they publish, generally on the theory that they know or at least should know of the defamation. But the court in Sandler held that these sorts of Internet self-publishing services are not liable, because they don't review the manuscript but just print it, and they therefore don't know or have reason to know of the possibly defamatory content within the book. The court also applies a similar analysis to the plaintiffs' disclosure of private facts and false light invasion of privacy claims.

Sounds like a sensible and not very surprising application of general negligence principles, but because such decisions about what's "reasonable" are often pretty mushy and hard to predict as a matter of principles, I thought this particular decision -- which I expect will become a fairly influential precedent -- was worth noting.

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What Is the Exchange Rate for Terrorist/Innocent Exchanges?

Amos Guiora and Martha Minow have this interesting post raising the provocative question of what is the proper exchange rate when a country like Israel negotiates with terrorists. They make this telling observation:

What parent wouldn't want the government to do anything—and everything--to recover a missing soldier-daughter or son? If a parent is in the drivers' seat, no price is too high, no measure to risky if there is a chance of recovering the child alive, and even recovering the remains of the cherished family member. Moreover, combat soldiers in recent days have expressed their support the exchange, and noted it is important for them to know that should they fall into captivity the state will do anything to release them.

But what is the obligation of the state when it sends soldier to combat? Does the state owe that individual “everything” should something happen? What are the limits of state obligation? What does “everything” mean? Turn over 1,000 members of Hamas for Gilad Shalit? Or East Jerusalem?

Perhaps the logical conclusion from Guiora and Minow's provocative question is that no negotiations should ever be undertaken with terrorist organizations.

Related Posts (on one page):

  1. What Is the Exchange Rate for Terrorist/Innocent Exchanges?
  2. Why Doesn't Israel Have the Death Penalty for Murder by Terrorists?:
56 Comments

Steve Bainbridge on Batman:

Steve Bainbridge responds to my post on Batman here, linking to an earlier post of his claiming that Batman actually causes more harm than good because he damages property during his car chase in the first movie and violates corporate law by diverting corporate assets to serve his own personal agenda. The first point is easily dispensed with. Yes, Batman did destroy a lot of property during the final car chase in Batman Begins. However, given that the car chase was necessary to save the entire city from being destroyed by the League of Shadows and most of the inhabitants from being killed in the process, I'd say that the tradeoff was worth it. Perhaps Bruce Wayne should compensate those who lost property in the chase (and maybe in the time that passed between the two movies he did). But even if he failed to do this, the good he accomplished in this scene surely outweighed the harm.

The corporate law point is more interesting. I'm no expert on corporate law, but I'll assume that Bainbridge (who is an expert) is right to conclude that Wayne violated those laws. However, I don't think this aspect of the plot is integral to the message of the movie. Indeed, I'm not even sure that the filmmakers intend for the audience to regard Wayne's actions as illegal. If, as Bainbridge suggests, Wayne violated the rights of minority shareholders, one would expect some of them to sue. And if large amounts of corporate assets were being diverted to unproductive personal projects of Wayne's, one would expect shares of Wayne Industries stock to precipitously decline in value as potential shareholders recognize that buying Wayne stock is a money-losing proposition.

Yet in the second movie, Wayne Enterprises seems to be as successful as ever. Indeed, as I suggested in the original post, diverting some corporate funds to crimefighting might well be in the interests of the stockholders because Gotham City's high crime rate discourages investment and thereby reduces of the value of Wayne Industries stock. As for Bainbridge's claim that Wayne violated antitakeover laws when he regained control of the corporation at the end of Batman Begins, this - if correct - would be consistent with the libertarian theme I identify. After all, most libertarians view antitakover laws as unjustified government restraints on the market. Wayne's takeover of Wayne Industries might well have made the firm more profitable by removing less capable incumbent managers. There may be similar libertarian objections to at least some of the other corporate laws that Bainbridge accuses Wayne of violating. Perhaps the movie can be interpreted as a critique of government's role in the corporate world as well as its role in traditional law enforcement.

In any event, Wayne's corporate lawbreaking is hardly a central focus of the movie. By contrast, the skepticism about government and (relative) optimism about private initiative that I stress in my post really are key themes in both movies, especially the second.

Ultimately, criticizing Batman for violating corporate law is a bit like criticizing the coach in Hoosiers for using basketball strategies that wouldn't work in the real world. The criticism is technically correct, but misses the point of the story.

Related Posts (on one page):

  1. Steve Bainbridge on Batman:
  2. The Libertarian Law and Economics of Batman:
76 Comments

Thursday, July 24, 2008

The Libertarian Law and Economics of Batman:

I recently saw the new Batman movie, which is quite good. Overall, I have a much more favorable view of the Batman mythos than of the rival Superman series. Unlike Superman, who often seems to waste his immense powers on relatively minor villains, Batman/Bruce Wayne pays attention to the importance of opportunity costs. For example, he goes after the bigwigs of Gotham organized crime, not the smalltime petty thieves. He consistently attacks the most powerful villains he can realistically take on with the resources available to him.

The Batman story is also an interesting quasi-libertarian commentary on the shortcomings of government. Like the Mafia portrayed in The Godfather, the necessity for Batman's sometimes dubious methods arises because of the government's failure to protect people and their property against predation. This point is effectively emphasized in both The Dark Knight and Batman Begins. In that respect, Batman is similar to The Godfather in conveying skepticism about government, its motives, and its ability to effectively fulfill even the core "minimal state" function of protecting the public against violent crime.

In two important respects, Batman's message is actually more libertarian than that of The Godfather. While the latter portrays private protection firms (such as the Mafia) as being basically similar to government in their predatory nature, Batman's crimefighting activities are depicted as being both more noble and more effective than those of the generally incompetent and corrupt Gotham authorities.

In addition, Mario Puzo was extremely skeptical about the ethics and motives of "legitimate" businessmen, whom he portrayed as being little different from the Mafiosi. By contrast, Bruce Wayne is a billionaire businessman and his control of Wayne Enterprises is viewed as essential to his crimefighting activities. At times, the Batman movies even hint at the possibility that big businessmen actually have a self-interested incentive to help provide the public good of reducing violent crime. After all, they stand to lose a lot of profit if high crime rates reduce investment and drive away their customers and skilled workers. Precisely because of the vast size of his firm, Wayne has less incentive to free ride on the crime-fighting efforts of others in providing the public good of crime control. He will capture enough of the benefits of crime-fighting to justifying investing in it, even if he has to pay a very high proportion of the costs himself.

SPOILER ALERT (Proceed below at your own risk, if you haven't seen the movie yet):

(show)

Related Posts (on one page):

  1. Steve Bainbridge on Batman:
  2. The Libertarian Law and Economics of Batman:
35 Comments

Secession, Ignorance, and Stupidity:

A recent Zogby/Middlebury Institute poll shows that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic." Belief in states' and regions right to secede was especially common among blacks (40%), Hispanics (43%) and people aged 18-24 (40%). Interestingly, political liberals (32%) were more likely to believe in a right to secession than conservatives (17%). 18% of respondents say they would support a secession movement in their own state, including 24% of southerners.

Constitutional law professor Ann Althouse claims that these poll results show that "all these people [who believe in a right to secession] have the law wrong and don't seem to know the basics of the history of the Civil War." She concludes that the pro-secession survey respondents are "fascinatingly stupid."

I certainly agree with Ann that much of the public is shockingly ignorant about American history and constitutional law. This is one aspect of the more general widespread political ignorance that I have often written about on this blog and elsewhere (e.g. here and here). At the same time, I don't think that ignorance is necessarily a sign of stupidity.

I. Secession and the Constitution.

More importantly, I don't think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn't explicitly guarantee states a right to secede, but also doesn't explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is "perpetual" (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. In light of this history and the ambiguity of the constitutional text, I don't think that belief in a right to secession is at all unreasonable, much less a sign of obvious ignorance or stupidity.

II. Secession and the Civil War.

Many people, of course, believe that the issue of secession was definitively resolved by the Civil War; Ann may be alluding to this when she writes that the survey respondents she criticizes "don't seem to know the basics of the history of the Civil War." There is no question that the federal government defeated the south's attempt to secede. However, superior military might doesn't prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.

To avoid confusion, I should emphasize that I think that the federal government was right to suppress the Confederates' efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners' constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.

During the Civil War, even some defenders of the Union admitted that secession might be justified in some instances. For instance, in his First Inaugural Address, Abraham Lincoln stated his view that the Union is "perpetual," but also that "If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one." Lincoln (correctly) denied that any such thing had happened in the case of the South in 1861, but left open the possibility that secession might be permissible in a situation where the federal government really had deprived a minority of a " vital" constitutional right.

Secession can be used to advance evil ends, such as the protection of slavery. But it can also be used to pursue good ones. After all, the United States was established by means of secession from the British Empire. More recently, the secession of the Baltic States from the Soviet Union, and the secession of Slovakia from Czechoslovakia have caused far more good than harm.

In sum, the text of the Constitution is ambiguous about secession, and nothing in our later history definitively forecloses the possibility that secession might be permissible in some situations. The Zogby poll respondents might be ignorant in so far as they may believe that the federal government will allow states to secede at will. But they are not necessarily ignorant or stupid to believe that states have a right do so - irrespective of whether the federal government is likely to honor that right. Even as a matter of practical political reality, the federal government's reaction to a serious modern secession movement is likely to be dictated more by the immediate circumstances than by the long-ago precedent of the Civil War. Without knowing the background of the future dispute in question, it's hard to predict whether the feds would use force to prevent secession or not.

UPDATE: In addition to criticism from people who think that any form of secession is unthinkable, I also expect criticism from those who claim that the South seceded for more admirable reasons than the protection of slavery. Unfortunately for these people, Confederate leaders at the time clearly stated that slavery was the cause of secession. For example, in his famous 1861 "Cornerstone Speech," Confederate Vice President Alexander Stephens emphasized that "slavery as it exists amongst us—the proper status of the negro in our form of civilization . . . was the immediate cause of the late rupture and present revolution." He also avowed that the enslavement of blacks was the "cornerstone" of the new Confederate government and constitution. For most pro-slavery southerners, states' rights were merely a tool for protecting slavery. When slavery could more effectively be promoted through federal power, they were perfectly willing to jettison their states' rights principles, as in the case of their trampling on state prerogratives for the purpose of enforcing the Fugitive Slave Act (as I briefly discussed here).

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Our Litigious Society, in 1884 Montreal:

Thanks to Sasha for the translation, from Lebeau v. Turcot, 7 Legal News 259 (1884) (emphasis added):

Whereas the plaintiff demands of the defendant damages in the amount of $199, by reason of the injury that he alleges was done to him last December 23 by the defendant, who, in charge of taking the collection in the church of the parish of St. Laurent, intentionally and maliciously [allegedly] passed the plaintiff's pew without soliciting the donation of the latter, present at the time, and did so with the goal of insulting and mortifying said plaintiff, and after having told several people ahead of time that he would act in this way with respect to him, in the goal of humiliating him;

Whereas the defendant pleads: 1st That he was fulfilling in the circumstance a voluntary and gratuitous function and, as a result, was not held to address himself to the plaintiff for the said collection, and that as a consequence, the latter has no recourse against him; 2nd That if he thus passed the plaintiff this was only by inattention and without malice; but that the plaintiff who, around last November, dismissed the defendant from his service, without plausible motive, and who was sued by him, has retained against the defendant a resentment and a bad will which have driven him on several occasions to turn his back to the said defendant, when the latter presented himself at his pew for the collection; and that this bad will of the plaintiff is the sole motivation of his current demand;

Considering that the plaintiff has proved the allegations of his demand, and notably that it was with a deliberate aim and with the intention to offend and humiliate the plaintiff that the defendant passed his pew in the abovementioned occasion; that he had even boasted in advance of what he was going to do and that he called the attention of several people to it, at the very moment of the collection, and that after the service he laughed about it and [triumphantly celebrated] with several persons;

Considering that although the defendant fulfills in this circumstance a gratuitous and voluntary service, he is held to acquit himself of it with an equal politeness to all parishioners and cannot, by voluntary omissions, single some out to the mockery of others;

Considering, however, that though the conduct of the defendant, in the abovementioned circumstance, was reprehensible and that he could not escape unpunished, the proven facts justify however only a light condemnation;

Rejects the exceptions and defenses of the defendant and condemns him to pay to the plaintiff, by way of damages, the sum of [$5], and the expenses of an action of this class, costs, etc.

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Interesting Case Involving Evidence of Defendant's and Witness's Being Muslims:

Here's an excerpt from last week's State v. Rankin (N.C. App.) (some paragraph breaks added):

[D]efendant argues that the trial court erred by allowing the State to present evidence identifying defendant and a witness as Muslim. This argument is without merit.

The State presented recordings of certain phone calls made by defendant to Chantay Brown, a woman with whom he had been involved in the past. Brown's initial testimony provided defendant with an alibi for the time of the murder; however, she later retracted that statement and testified that defendant asked her via calls and letters to provide him with an alibi for the time of the crime.

Defendant argues that this unfairly prejudiced the jury against him, as the jury could well have anti-Muslim beliefs, and that any probative value of the evidence was outweighed by its prejudicial effect. This argument is based on Rule 403 of the North Carolina Rules of Evidence ...[:] “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” [This is a common provision, and tracks the Federal Rules of Evidence. -EV]

Whether to exclude evidence pursuant to Rule 403 is a matter left to the sound discretion of the trial court. A ruling by the trial court will be reversed for an abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision....

[R]elevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evidence that a defendant attempted to procure a false alibi from a witness is certainly relevant. The question, then, is whether the prejudicial effect of this information outweighed its relevance.

Defendant simply states that the jury probably had an anti-Islamic bias. Aside from the fact that a Bible was in the jury room, however, defendant presents no evidence to support this statement. Further, Brown testified that, per her religious beliefs, when defendant asked her to provide an alibi for him, she felt obligated to do so, which is why she initially testified that he had been with her at the time of the murder.

When the State asked her during voir dire whether her religious beliefs and the fact that defendant was of the same faith affected the way she reacted to defendant's request, she testified: “You're supposed to help them, assist them, if you can. You're supposed to help him. That's why I did agree to help him.” After listening to Brown's testimony and recordings of the phone calls between her and defendant out of the jury's presence, the trial court concluded that “defendant was using his religion as a mechanism to try to get this witness to testify in his behalf, and actually commit perjury; that it is relevant for that purpose, and it is not being offeredas a means to showing credibility[.]”

The court then went through the calls again and told the State which portions of each call could be played for the jury, a process which eliminated significant portions of each call that the court considered “just discussions of faith and nothing to do with the trying to influence her.”

Given the care with which the trial court handled this evidence, and given the fact that defendant cannot show that, without this evidence, a different result would likely have been reached, this assignment of error is overruled.

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Killing of Sexual Partners as Mere Manslaughter:

When can killing a sexual partner or a former sexual partner qualify as mere "voluntary manslaughter" rather than murder under American law? Some of the comments to my honor killing post led me to want to elaborate further on this.

1. Most states — though not the several states that have adopted the Model Penal Code "extreme mental or emotional disturbance" formulation — specify that this sort of killing is voluntary manslaughter only if it's in the "heat of passion." But while some states limit this to situations where the killer has just immediately caught the victim (either the killer's sexual partner or the person with whom the partner is cheating) in the act, other states take (or recently have taken) a different view.

No need to witness adulterous act: Thus, for instance, Commonwealth v. Schnopps, 417 N.E.2d 1213 (Mass. 1981), holds that a spouse's killing of a spouse can be voluntary manslaughter when it immediately follows the victim's oral admission of adultery. Anderson v. State, 507 So. 2d 580 (Ala. Ct. Crim. App. 1987), overruled by Knight v. State, 907 So. 2d 470 (Ala. Ct. Crim. App. 2005), held that a spouse's killing of a spouse can be voluntary manslaughter when the killer "visualized [the wife] standing nude at the foot of [another man]'s bed" — based on the wife's refusing to accompany him home after a family visit to the other man's mobile home — and then went home, got his shotgun, drove to a store to buy shotgun shells, and later went back to the other man's home and shot the wife and the other man.

Time delay between confession of adultery and killing: Likewise, People v. Berry, 556 P. 2d 777 (Cal. 1975), concluded that a delay of 20 hours between the confession of adultery (and a desire to leave the marriage) and the killing didn't preclude a finding of manslaughter, at least when the victim had engaged in "a long course of provocatory conduct."

2. As best I can tell, most states don't limit the defense to adultery, but also allow it when the killer and the victim aren't married. Goforth v. State, 523 S.E.2d (Ga. 1999). This may be sensible, but I mention it to rebut the suggestion that the breaking of a marriage vow is somehow uniquely serious and thus specially justifies the doctrine.

3. Most troubling of all, there are quite a few cases in which a voluntary manslaughter theory was found legally warranted simply because a sexual partner had left the relationship, without any evidence of cheating. See, e.g., State v. Little, 462 A.2d 117 (N.H. 1983); People v. Guevara, 521 N.Y.S.2d 292 (App. Div. 1987). Fortunately, many states would not allow the theory in such cases, but some do.

4. Some commenters suggested that honor killings are especially culpable because they are "celebrated" by the community, in a way that manslaughters aren't. That would be reason to condemn the community that celebrates such killings; but I saw no evidence of such celebration in the Georgia story I cited to. And while I don't know of a tradition of celebrating a man's killing his unfaithful wife or girlfriend, my sense is that there are unfortunately some subcultures in the U.S. where such a killing would be at least to some extent condoned, even though not celebrated.

5. To my knowledge, the voluntary manslaughter theory has not been applied in the U.S. to parents killing their children because of their children's misconduct, though as I mentioned the "extreme mental or emotional distress" formulation of voluntary manslaughter might apply even to such situations. But the premise of the doctrine as to spouses killing their cheating spouses (usually the husband cheating the wife) is that the spouse has fallen victim to the heat of passion. It's factually quite possible that some fathers can fall into such a passion when they hear of a daughter's misconduct that they see as staining their family honor.

This having been said, I'm very happy that in our culture this sort of pathology (killing someone, spouse or otherwise, because of the person's infidelity, including, I suspect, because the infidelity is seen as a stain on one's honor) is limited to sexual partners, chiefly husbands and boyfriends. I'm glad that it doesn't extend to the unfaithful person's father, and I'd like to keep it that way.

Nonetheless, I'm not sure that there's some vast gulf between a jealous passion — again, a jealous passion that might be based in part on a man's sense that the wife has dishonored him (by "cheating") — and a father's passion stemming from his sense of family honor. It would make sense for our law to limit the scope of the manslaughter theory to cover the traditionally recognized jealousy (and perhaps to cover only a narrow subset of such cases), and to exclude the father's reaction. But I don't think we can see the outraged father's actions as uniquely barbaric, while the outraged husband's actions are unfortunate and criminal but radically different. Both, unfortunately, reflect a longstanding tradition of vast and heinous overreaction to perceived sexual impropriety, especially by women, a tradition that is present in some ways in our country as well as in Muslim countries.

Related Posts (on one page):

  1. Killing of Sexual Partners as Mere Manslaughter:
  2. "Honor" Killings, Muslim and Otherwise:
41 Comments

Service Nation States that It Does Not Support Mandatory National Service:

I recently had a conversation with Tim Zimmerman, a spokesman for Service Nation, in which he emphasized that he and the organization he represents do not support mandatory national service. Co-blogger Jim Lindgren and I had previously interpreted their position as supporting such an agenda because many of the organization's leaders have previously expressed support for mandatory service and because the organization's list of 13 objectives includes "Launch[ing] a debate about why and how America should become a nation of universal national service by 2020." As Jim pointed out in one of his posts, it is impossible to have national service that is both universal and voluntary because under a voluntary system at least some people will choose not to serve, thus rendering the system non-universal.

However, Zimmerman suggests that this passage (which has since been removed from Service Nation's website) was merely intended to indicate the group's support for the idea that service opportunities should be universally available to those who want to serve. He agreed that Point 13 was poorly worded and thought that Service Nation should use different terminology in the future. He also points to this recently added statement on Service Nation's website (which was apparently added as a result of Jim's post):

Does Service Nation support mandatory national service?

No. We support the idea of voluntary community and national service. We are working to both inspire more Americans to volunteer their time and to encourage our leaders to create service opportunities for every American who wants to serve their community and country. We do not support mandatory national service requirements.

Obviously, definitions of what counts as "voluntary" may vary. Some national service advocates seem to believe that a system is "voluntary" so long as participants can choose what kind of government-mandated service they are required to perform (while being denied the option of refusing to serve altogether). Zimmerman assured me that this is not Service Nation's view.

As a general rule, I think we should assume that people are telling the truth about their agenda unless there is clear proof to the contrary (as there isn't here). So I think I should accept Zimmerman's and Service Nation's assurances on this point, as there is no clear proof that they are in bad faith.

At the same time, I continue to be troubled by some of the statements made by Service Nation leader Alan Khazei, who has argued that "every nation in the world [should] ha[ve] a year of full-time service as a rite of passage for all young people growing up," and that we should have "universal national service." There is no way that "a year of full-time service" can be a rite of passage for all young people unless it is mandatory. Khazei has also said that a year of national service should be a requirement for admission to college, though it is not clear whether he means that government should mandate this requirement or whether he merely hopes that universities will adopt it voluntarily. Khazei's views don't necessarily represent those of Service Nation as a whole, and I am willing to accept that the organization doesn't endorse all of his positions.

I also worry that the enactment of a massive government program for even genuinely voluntary service (which Service Nation does seem to favor) might eventually transition into a mandatory system even if that wasn't the original intention. Like Jim, I continue to oppose Service Nation's proposal to enormously expand government-sponsored service programs, eventually enrolling up to 1 million people every year (more than ten times as many as currently).

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Excellent article on Hofstader's Social Darwinism in American Thought:

Tim Leonard of Princeton has posted a very interesting and important paper on Hofstader's influential book, and what he calls the "myth of Social Darwinism". Leonard points out, among other things, that the association of Herbert Spencer and William Graham Sumner with "Social Darwinism" is almost entirely a product of Hofstader's work, and that Hofstader merely used "Social Darwinism" as an epithet to discredit (libertarian) views he opposed. More generally, Hofstader's book "gave impetus to the novel assocation of Social Darwinism not only with laissez-faire," but with racism and imperialism. "Never mind that the set of Gilded Age and Progresive Era writers who endorsed laissez-faire, racism, imperialism and eugenics is essentially empty.... [Sumner, in fact, was a leading opponent of the Spanish-American War] 'social Darwinism' functions as a synecdoche for all that an early-1940s New Deal liberal (and many cince) would regard as retrograde and reactionary."

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[Josh Chafetz, guest-blogging, July 24, 2008 at 8:48am] Trackbacks
Responding to Some of Your Comments

on Leaving the House. In my previous post, I suggested some reasons why we might want the House to amend its rules so as to require resignations to be accepted before they are effective. For my last post, I want to reply to some of your comments. I apologize in advance that I won't have the time to reply to all of the interesting comments I received.

First, "non-native speaker" wrote

I can't see why the constitutional provision about filling vacancies caused by resignation necessarily means that senators had a *right* to resign. It could well mean that, as in the 1770 New Jersey case mentioned in your previous post, resignation requires the acceptance or approval of the legislature to be effective; and in that case, when the resignation is approved, the constitutional provisions about filling vacancies apply.

Additionally, the 27th amendment does no longer mention "resignation" as a cause for vacancy: "When vacancies happen in the representation of any State in the Senate...". Does this mean that "right" to resign was repealed by the amendment?

As for the first part of that question, I take the Madison-Morris colloquy to show that "resignation" is used to mean a right to resign. Otherwise, that colloquy would imply that there is no way for a member to leave the House, even with the House's consent. While the text will bear that construction, the history, I think, will not. It had never been the case in any legislature that I am aware of that a Member could not leave with his house's consent. (Indeed, I take it to be the case that, although the Chiltern Hundreds are invariably used in Britain today, an MP could still be allowed to resign by vote of the House of Commons.) It would also run contrary to the wide power given each house over its own practices and procedures. Given that, I would expect to see some debate if the words were understood to mean that a Representative could not quit his seat, even with the House's consent.

As for "non-native speaker"s second question, I take him to be referring to the Seventeenth Amendment, not the Twenty-Seventh. As for whether the Seventeenth Amendment removes a Senator's right to resign, that would be a question of the meaning of that Amendment when it was promulgated. I haven't done the historical research, so I can't offer a definitive answer, but my suspicion is that, by 1913, it was sufficiently (if, in my view, mistakenly) ingrained in legislators' consciousness that neither house could prevent a legislator's resignation, that the omission of resignation was not meant to carry any meaning.

Professor Muller asked:

Can a person be President and a Senator at the same time?

If not, would McCain or Obama have to resign his Senate seat in order to take the Oath of Office as President?

If so, does your article imply that the Senate should have to approve of such a resignation before it became effective?

If so, does your article imply that a Democratic-controlled Senate could block Senator McCain from assuming the duties of the Presidency by withholding permission for him to resign the Senate? (Or that a Republican-controlled Senate could do the same to Senator Obama?)

Just wondering.

I would note, first, that Seth Tillman has a very interesting draft on SSRN arguing that, in fact, a person can be President and a Senator simultaneously. I remain somewhat skeptical about Seth's claim for structural reasons, but I commend the article to you. I note also that McCain and Obama are both Senators, and I have argued that the Constitution does give Senators a right to resign. However, even if one of them were a Member of the House, acceptance of an incompatible office (assuming, for present purposes, the presidency to be such) would vacate his House seat, because acceptance of an incompatible office vacates a House seat by itself. That is, incompatibility is a means of creating a vacancy wholly separate from resignation. Just as a member judged by his house not to have been duly elected or not to meet the requisite qualifications loses his seat without resigning it, so too a member who accepts an incompatible office does. It is, in this sense, no different than accepting the Chiltern Hundreds, which does not actually constitute a resignation, but rather vacates the seat by operation of incompatibility provisions.

Several people asked if this would be a Thirteenth Amendment violation, a question with special resonance given Jim and Ilya's ongoing discussion of mandatory service requirements. (On the issue of the meaning of "involuntary servitude," I would recommend Nathan Oman's forthcoming article.) I discuss the Thirteenth Amendment briefly in my article (pages 53-54), but the short answer is that I do not think that requiring a member to serve out a two-year commitment which he voluntarily undertook and for which he is handsomely compensated constitutes involuntary servitude. Again, I think the analogy to service in a volunteer military is useful.

Finally, several commenters were dismissive of what might be called the norm-reinforcing functions of requiring resignations to be accepted, essentially saying that, if members aren't being kept in the House involuntarily, then my proposal wouldn't result in any change. I have a more robust conception of political mores than that. I think that, if you spend decades telling people that legislators are just self-interested rent-seekers, then we're not surprised when they turn out to be nothing more than self-interested rent-seekers, and people like William Jefferson get reelected. But when institutional practices are aimed at inculcating the norm that our legislators should be public spirited, that subtly helps to change the political culture to the point where we actually expect legislators to behave that way. To me, that is a tangible benefit.

Well, that's it for me. Thank you so much to Eugene and all of the Conspirators have having me here. And thank you even more to all of you for reading and commenting on my article. I've had a blast discussing it with you!

I'll just add one more time that, if you've found that you're interested in historical discussion of Anglo-American constitutional rules regarding legislative procedure, my book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, is chock full of 'em! The book discusses issues like the judging of disputed elections, legislative contempt powers, bribery, the speech or debate privilege, etc. And it's still 20% off at Amazon!

Okay, thus ends the busking (didn't I promise in an earlier post I wouldn't do any more of that? hmmmm, can't remember ...), and with it, my posting here at the VC. Now, I'm off for ten days in Yellowstone and the Grand Tetons, far away from any computers. But I will certainly check any comments when I get back, so feel free to leave them.

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Obama at the Wall:

As regular readers know, I'm not the biggest Obama fan, but I am enjoying thinking about how pictures like this one are playing in "white nationalist" circles.

Oh, and kudos to the member of the Obama advance team who supplied him with a nice-looking kippah, instead of the typical cardboard or black "funeral" ones visitors typically get.

UPDATE: McCain also had a nice kippah for his visit to the wall. Bush, however, had a dorky one, looks like a kids' size.

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Wednesday, July 23, 2008

Constitutional Right to Access to DNA Evidence for Purposes of Clemency Petition,

recognized by McKithen v. Brown, a decision this Monday from Judge John Gleeson of the federal trial court for the Eastern District of New York. It's a long opinion, but here's the bottom line:

The Petition Clause ... secures a right of meaningful access to whatever avenues remain [after normal appeals have been exhausted, avenues that include a clemency petition -EV], and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of the trial.

Seems like an important result, if it's ultimately upheld on appeal. The national media and the blogosophere -- including legal blogs -- seemingly haven't picked it up yet, though my searches found a short article on the subject in today's Daily News (New York).

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State Public Records Act Covers Government E-Mail Metadata,

and not just the e-mail text, says the Washington Court of Appeals, in O'Neill v. City of Shoreline (decided Monday). Unsurprising, but I thought I'd note it because I hadn't heard about such a holding before.

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McCain's Time Magazine Essay on Patriotism Touches on Service.--

John McCain on Patriotism in Time Magazine (tip to Adler):

Patriotism means more than holding your hand over your heart during the national anthem. It means more than walking into a voting booth every two or four years and pulling a lever. Patriotism is a love and a duty, a love of country expressed in good citizenship.

Patriotism and the citizenship it requires should motivate the conduct of public officials, but it also thrives in the communal spaces where government is absent, anywhere Americans come together to govern their lives and their communities —- in families, churches, synagogues, museums, symphonies, the Little League, the Boy Scouts, the Girl Scouts, the Salvation Army or the VFW. They are the habits and institutions that preserve democracy. They are the ways, small and large, we come together as one country, indivisible, with freedom and justice for all. They are the responsible exercise of freedom and are indispensable to the proper functioning of a democracy. Patriotism is countless acts of love, kindness and courage that have no witness or heraldry and are especially commendable because they are unrecorded.

The patriot must not just accept, but in his or her own way protect the ideals that gave birth to our country: to stand against injustice and for the rights of all and not just one's own interests. The patriot honors the duties, the loyalties, the inspirations and the habits of mind that bind us together as Americans. . . .

And those of us who live in this time, who are the beneficiaries of their sacrifice, must do our smaller and less dangerous part to protect what they gave everything to defend, lest we lose our own love of liberty.

Love of country is another way of saying love of your fellow countrymen — a truth I learned a long time ago in a country very different from ours. Patriotism is another way of saying service to a cause greater than self-interest.

If you find faults with our country, make it a better one. If you are disappointed with the mistakes of government, join its ranks and work to correct them. I hope more Americans would consider enlisting in our armed forces. I hope more would consider running for public office or working in federal, state and local governments. But there are many public causes where your service can make our country a stronger, better one than we inherited.

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McCain Campaign “studying options for national service.”--

Just over a week ago, Ben Adler reported that John McCain had not yet come up with a national service plan:

John McCain, who’s predicated his presidential run in no small part on his distinguished military record, frequently exhorts Americans — and especially young Americans — to serve their country. Despite that appeal, he has yet to offer any proposals to expand or transform national service outside of the military. . . .

Although McCain joined most congressional Republicans in 1993 to oppose the creation of the Americorps program when President Bill Clinton proposed it, he later became a prominent supporter. He teamed with Sen. Evan Bayh (D-Ind.) in 2001 to introduce legislation to expand service programs, and again worked with Bayh and other Democrats to convince President Bush not to cut funding for the program in 2003.

"John McCain has constantly spoken to the need for young Americans to serve a cause greater than their self-interest," said McCain spokesman Joseph Pounder. "McCain's campaign is all about a cause greater than yourself," echoed Jessica Colon, chairwoman of the Young Republican National Federation.

But the McCain campaign will not commit to releasing a plan for expanding service opportunities. A senior policy adviser said only that they are "studying options for national service." When asked why he does not have a service proposal, Pounder would only say that McCain is proud of his past support for service programs and has exhorted audiences to serve in this campaign.

The leading Democratic candidates all released service plans last year, and Mike Huckabee frequently articulated a general intention to increase national service opportunities.

Others running in the Republican primary, including McCain, said little about service programs, which some members of the Republican base consider unnecessary spending that interferes with more effective private sector efforts.

When Time magazine last month asked both candidates to contribute an essay on patriotism, McCain wrote on the obligations of the citizen and gave pride of place to “the communal spaces where government is absent, anywhere Americans come together to govern their lives and their communities — in families, churches, synagogues, museums, symphonies, the Little League, the Boy Scouts, the Girl Scouts, the Salvation Army or the VFW. They are the habits and institutions that preserve democracy.” While he later brought up military service, he made no mention of Americorps or any other national civilian service program.

Although Adler never criticizes McCain for not having a grand national service program like Obama's, reading between the lines of the article I suspect that Adler thinks that McCain ought to have one. Certainly, McCain needs to have a position, though the one McCain expressed in Time Magazine might just be the right one for him.

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"Honor" Killings, Muslim and Otherwise:

A friend of mine passed along this New York Post column about a Pakistani immigrant's strangling his daughter -- in Georgia, outside Atlanta -- because she cheated on her husband and "wanted to end her arranged marriage."

The crime, which the Atlanta Journal-Constitution reports on, is awful; and this murderous practice should be condemned more broadly, as should fellow community members and police who turn a blind eye to this sort of behavior, or to similar "honor" violence that falls short of killing.

But at the same time, I'm not sure that I'd cite this as an example of the barbarism or menace of Islam, as I've seen some do. It probably is connected in some measure to Muslim attitudes towards women and towards sexual behavior. But unfortunately very similar practices are common in many cultures, including our own.

To begin with, it remains the law in America (and I suspect many other Western countries) that if a spouse -- who will usually be the husband -- kills the other spouse shortly after discovering the spouse's adultery, the killing may be classified as a manslaughter rather than a murder. Manslaughter is generally treated as a far less severe crime, with far lower penalties.

It's true that the killing has to be done in the "heat of passion," and the ostensible theory is that the crime is in some measure more understandable and more forgivable because of its emotional basis, not that the crime is justified as a matter of honor. Still, my sense is that much of people's sympathy with the killers has to do with the fact that they were dishonored, and not just distressed or angered for reasons unrelated to their sense of their own honor. And in any event, regardless of the rationale, the law does make killing of an errant spouse into something less than murder -- not the same as the killing of a daughter for her dishonoring the family name, but not very far from that, either.

What's more, until the 1970s, this very same state of Georgia sometimes allowed spouses to kill their spouses when necessary to stop or prevent an act of adultery with no criminal consequences at all -- such killings were considered entirely justifiable, and not just mitigated from murder to manslaughter. See Scroggs v. State, 93 S.E.2d 583 (Ga. App. 1956). Even in the 1975 case that rejected this rule, one judge praised the rule and would have retained it. From 1915 to 1925, Texas courts took the same view, though apparently limited to husbands killing their wives. See Cook v. State, 180 S.W. 254 (Tex. Crim. App. 1915).

And until the 1970s, Georgia, Texas, and two other states expressly allowed husbands to kill their wives' lovers. (Some of the states extended this privilege to wives as well, and some didn't have a "heat of passion" requirement.) One of the cases elaborating on such a statute, State v. Greenlee, 269 P. 331 (N.M. 1928), specifically argued that the law "recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor." Plus it is generally believed that juries have often acquitted the killers in such situations -- including fathers who killed their daughters' lovers, precisely on "honor" grounds -- even independently of the law. To quote another Georgia case (from 1911, quoting an earlier case from 1860), "What American jury has ever convicted a man for slaying the seducer of his wife or daughter?" That has likely changed in considerable measure since 1911, but my guess is that it remained largely true at least until recent decades.

And that's just the legal system's toleration (partial or complete) of such killings. As a matter of practice, many murders and even more assaults in America each year stem from adultery, perceived adultery, or even just a desire for a divorce.

Naturally, none of this remotely justifies the Pakistani father's killing of his daughter (though under some of the broader manslaughter statutes, such as the "extreme emotional disturbance" statutes that track the Model Penal Code, it's possible that his act would be mitigated to manslaughter).

But it does suggest that we shouldn't treat this sort of "honor" killing as somehow especially telling of some unique regressiveness on the part of Muslim or Pakistani culture; unfortunately, this isn't that different from the regressiveness of some American subcultures, and of the law in some parts of America until a few decades ago. And while we should react with outrage at this honor killing, we should likewise react with outrage at the much more typical (for America) killings of non-Muslim wives and girlfriends -- and husbands and boyfriends -- who seek to leave a relationship, or who have even committed adultery.

Related Posts (on one page):

  1. Killing of Sexual Partners as Mere Manslaughter:
  2. "Honor" Killings, Muslim and Otherwise:
78 Comments

The Natural Right of Self-Defense: Heller's Lesson to the World

The Syracuse Law Review is putting together a symposium issue on the Heller decision. My article for the symposium examines the implications of Heller's constitutionalization of the natural law right of self-defense.

The article has benefitted from the VC discussion of self-defense in Heller by Orin Kerr, Eugene Volokh, and Jim Lindgren. Due to the symposium's desire for short articles, I was not able to explore all the interesting issues raised by the discussion.

Jim had suggested that the topic would make a good subject for student Notes, and I certainly agree. My Article doesn't come close to exhausting the topic. For example, in the course of research, I found the 1874 treatise "Select American Cases on the Law of Self-Defence." (Available on Google Books.) There is a vast amount of material therein that is worth exploring. Moreover, my string cite (note 15) on American cases describing self-defense as a "natural right" does not even include cases using the term "inherent right" instead.

BTW, I did not steal the title from Jim's suggestion. I already had it in my draft, as a sequel to my BYU J. Pub. L. article "The Human Right of Self-Defense."

In footnote 15, you will find a 1832 Kentucky case which I did find thanks to Jim. As you'll see, I still haven't solved the mystery of how the Kentucky court attributed to Matthew Hale a quote which actually appears to come from Michael Foster. I'll send a free copy of the forthcoming book Supreme Court Gun Cases, vol. 2, to the first person who can provide a definitive solution.

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Gray Wolves Endangered Again:

Last week, a federal district court enjoined the Fish & Wildlife Service's decision to remove Endangered Species Act protections for gray wolves in the greater Yellowstone region. The NYT reported on the decision here., the LA Times here. The FWS press release about reinstating wolf protections is here.

I may be in the greater Yellowstone region at the moment, attending a conference in Gallatin Gateway, but I doubt this significantly increases my chances of seeing a wolf this week -- but I can still hope!

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Why Mandatory National Service is Unconstitutional under the Thirteenth Amendment:

The debate over the Service Nation proposals for mandatory national service raises the issue of whether such an imposition is constitutional under the Thirteenth Amendment. In a series of posts last year, I explained in detail why I believe that mandatory national service violates the Thirteenth Amendment's prohibition on "involuntary servitude." To briefly summarize my argument, the key point is that the text of the Amendment forbids all "involuntary servitude," with the sole exception of forced labor imposed as punishment for a crime. For reasons explained in this post, the explicit inclusion of this exception strongly suggests that no other exceptions are permitted, including for government-imposed "service" obligations.

In this post, I discussed and criticized the Supreme Court's 1916 decision in Butler v. Perry, the case (noted in Jim's most recent post) that comes closest to holding that mandatory civilian service is constitutionally permissible. Butler upheld a Florida law that required all adult males to either pay a small tax for the upkeep of roads or report for mandatory road repair work six days per year. The option of paying a tax potentially could have been grounds for upholding the law on the basis that a law that simply required all citizens to pay a small road tax would surely have been constitutionally permissible, and adding a labor option doesn't make the law more coercive than it was before. Unfortunately, the Court upheld the law on broader grounds that might also apply to mandatory national service. This aspect of Butler's reasoning is, I think, severely flawed, for reasons that I explained in the linked post.

I am far from certain that today's Court would endorse Butler's reasoning. But even if it did, that might not be enough to uphold a mandatory national service program that imposed a lengthy forced labor obligation on all young people. Justice McReynolds' opinion for the Court claimed that the Thirteenth Amendment's ban on "involuntary servitude" does not extend to "services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state." This suggests that only longstanding traditional service obligations and "duties . . . owe[d] to the state" are exempt from the Amendment's otherwise categorical ban. Obviously, there is no longstanding tradition (or any tradition) of civilian mandatory national service imposed for a lengthy period of time. Therefore, a modern court could strike down mandatory national service without overruling Butler or even cutting back on its more expansive reasoning.

Other precedents cut against the constitutionality of mandatory national service. For example, as I noted here, in the Peonage Cases of the early 1900s, the Court used the involuntary servitude ban to strike down laws that imposed significantly less coercive labor obligations than those that would be required under mandatory national service.

In future posts, if time permits, I intend to consider the legal and policy issues raised by the Service Nation proposal in more detail.

UPDATE: The law upheld in Butler was a Florida law, not an Alabama law as I initially stated. I have corrected the mistake in the main body of the post.

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Tenth Circuit Strikes Down Exclusion of "Pervasively Sectarian" Institutions from Government-Paid Student Scholarships:

The government is generally free to provide broadly available student scholarships that students may use at any institution, religious or secular. Such generally available funding programs don't violate the Establishment Clause, though some earlier Supreme Court decisions had held the contrary.

The government is, however, also free to decide to limit such scholarships in certain ways, even when those ways discriminate against religious uses: The Supreme Court has held (in Locke v. Davey) that the government may exclude devotional theology majors from otherwise generally available scholarships, and that this discrimination against religious uses doesn't violate the Free Exercise Clause. The question that Locke leaves open is just what other kinds of exclusion of religious uses from generally available programs are constitutional.

The federal Tenth Circuit court of appeals has just held, in Colorado Christian Univ. v. Weaver, that one thing the government may not do is distinguish between students who go to ordinarily religious institutions and students who go to "pervasively sectarian" institutions. Colorado drew such a distinction for college student scholarships, providing that the scholarships could be used at a wide range of institutions but not at "pervasively sectarian" ones, with the term being further elaborated this way:

An institution of higher education shall be deemed not to be pervasively sectarian if it meets the following criteria:
(a) The faculty and students are not exclusively of one religious persuasion.
(b) There is no required attendance at religious convocations or services.
(c) There is a strong commitment to principles of academic freedom.
(d) There are no required courses in religion or theology that tend to indoctrinate or proselytize.
(e) The governing board does not reflect nor is the membership limited to persons of any particular religion.
(f) Funds do not come primarily or predominantly from sources advocating a particular religion.

The Tenth Circuit held that this discrimination in funding violated two Establishment Clause principles: (1) It impermissibly discriminates among religions, and (2) it requires an unduly "intrusive scrutiny of religious belief and practice."

(1) To begin with, the Tenth Circuit follows Larson v. Valente, a 1982 Supreme Court case that held that the Establishment Clause is violated when a law discriminates among religions even when the discrimination focuses on the religious bodies' facially nonreligious practices -- in Larson, the fraction of contributions to the body that came from its members. Likewise, the Tenth Circuit says, distinguishing between religious institutions that are merely religious and those that are "pervasively sectarian" is a similarly forbidden discrimination. I'm not sure that Larson was correctly decided, but the Tenth Circuit's opinion seems correct given Larson.

(2) The Tenth Circuit goes on to conclude that "Even assuming that it might, in some circumstances, be permissible for states to pick and choose among eligible religious institutions, a second line of Supreme Court precedents precludes their doing so on the basis of intrusive judgments regarding contested questions of religious belief or practice" (emphasis mine). This has sometimes been described as an aspect of the prohibition on "excessive entanglement" between government and religion. And the Tenth Circuit's analysis strikes me as quite solid on the facts: Among other things, inquiring into whether theology classes "tend to indoctrinate or proselytize," into whether the governing board "reflect[s] ... any particular religion," and for that matter into whether faculty, students, trustees, or funders belong to the same "religion" or "religious persuasion" requires improper religious judgments by secular government officials.

To give just one example (and if you want more, read the opinion, which is quite readable),

CCU stated that its students, faculty, and trustees are not of a single religion, because the school is an interdenominational institution; it “unites with the broad, historic evangelical faith rather than affiliating with any specific denomination.” The state defendants took a different view: to them, all Christians are of the same religious persuasion, and denominational distinctions do not matter. The “correct” answer to that question depends on one’s ecclesiology. But under the First Amendment, the government is not permitted to have an ecclesiology, or to second-guess the ecclesiology espoused by our citizens. “Courts are not arbiters of scriptural interpretation.”

The State defendants blithely assumed that they could lump together all “Christians” as a single “religion.” But the definition of who is a “Christian” can generate an argument in serious circles across the country. Some students at CCU are members of the Church of Jesus Christ of Latter-Day Saints, or “Mormons.” Members of the LDS Church stoutly insist that they are Christians, but some Christians, with equal sincerity and sometimes vehemence, say they are not. In order to administer Colorado’s exclusionary law, government officials have to decide which side in this debate is right. Similar questions plague the religious taxonomy of Jehovah’s Witnesses, Christian Scientists, Unitarian-Universalists, various syncretistic groups and even (in some circles) the Roman Catholic Church.

To make matters worse, the Commission has (no doubt without animus) applied different standards to different religious traditions. When confronted with the question of whether Regis College was eligible for student scholarships, the Commission (and later the Colorado Supreme Court) focused on the particular denomination, which is Roman Catholicism, and concluded that the institution was eligible. In CCU’s case, however, the Commission focused on a broader category: all Christians....

Interestingly, as the court acknowledges, the "pervasively sectarian" vs. "merely religious" distinction that the court concludes is unconstitutional when embodied in statute was once part of the Supreme Court's own Establishment Clause doctrine. That is in fact why the statute contains such a distinction; the legislature was trying to comply with what was then the Establishment Clause requirement. But the Supreme Court has moved away from this distinction in its constitutional test, and I think the criticism of the constitutionality of this distinction as a statutory rule is quite correct.

I do not think that it's likely that the Supreme Court will review this decision -- I know of no circuit or state supreme court split on this particular question, and I think it's unlikely that the Court will see the case as either so important or so obviously wrong that it merits review without a split. I expect this case might be followed by challenges to similar statutes in other circuits, though a quick search for "pervasively sectarian" in Westlaw revealed no statutes that were quite like this one, and only a few that used the phrase at all.

I should note that the author of the decision, Judge Michael McConnell, is one of the nation's leading Establishment Clause scholars (a reputation built on his career as a law professor).

Related Posts (on one page):

  1. Colorado Will Not Contest the Tenth Circuit Decision on Exclusion of "Pervasively Sectarian" Universities from Scholarship Programs:
  2. Tenth Circuit Strikes Down Exclusion of "Pervasively Sectarian" Institutions from Government-Paid Student Scholarships:
46 Comments

The Mainstreaming of Forced Labor:

Co-blogger Jim Lindgren has done an excellent job of criticizing the "Service Nation" proposal for up to two years mandatory "national service," eventually to be imposed on all Americans.

As Jim explains in his first post, Service Nation is backed by a wide range of prominent politicians, activists, and philanthropists, including several potential 2008 vice presidential candidates. This impressive list of backers heightens my previously expressed concern that proposals for government-imposed forced labor are entering the political mainstream and may be on the road to enactment. Other prominent supporters of mandatory national service (cited in the post above) include Charles Rangel, the late Bill Buckley, Rahm Emmanuel, and Bruce Reed, President of the center-left Democratic Leadership Council. Republican Presidential candidate John McCain has endorsed mandatory national service in the past, though (as far as I know) he has not reiterated this view in recent years.

The fact that mandatory national service is attracting the support of numerous mainstream, centrist politicians and activists is a sign of its political viability. These people are unlikely to endorse any major proposal that could damage their political prospects. Another political factor in its favor is the fact that the targets of such proposals are almost exclusively young people - a group with very little political influence. The combination of powerful backers and weak victims is always a political advantage.

I don't expect mandatory national service to be enacted in the near future. But it might well be adopted through a slow process of accretion over the next few years, perhaps by the Service Nation target date of 2020. For example, one can imagine an initial proposal that merely requires mandatory service as a condition of receiving federal student loans (as many national service advocates propose). Once that law is enacted, critics will claim that it is "unfair" for relatively affluent students to escape this obligation by paying for their tuition with private funds. The law could then be amended to cover all college students. At that point, many would consider it unfair that college grads are required to serve, while other young people are not. Eventually, the law could be expanded to impose mandatory national service as a condition of getting a high school diploma. Obviously, these requirements would have to be imposed on students in private schools and colleges as well as public ones. Otherwise, they would not be truly "universal," as national service advocates insist they must be. Other slippery slope paths to mandatory national service are also possible. The scenario I outline is just one of several plausible possibilities.

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Motions to Dismiss Filed in MySpace Suicide Case: The WSJ Law Blog has the scoop, including links to the motions; the Washington Post also has coverage. The law review article of mine that is quoted in the motions is available here. Full disclosure: As I've noted before, I've provided a bit of advice to the defense counsel in this case on a pro bono basis.
19 Comments

That Old English Spirit:

I was reading a (partisan) pamphlet with an account of the 1819 trial of Samuel Waddington for seditious libel. A few days after the infamous Peterloo massacre, Waddington distributed a handbill inviting people to a meeting aimed at remonstrating against the government for its actions. He had also held a board containing the placard and the words "The meeting is deferred to a future day." The government's theory, endorsed by the judge, was that this sort of material "tend[ed] to excite disaffection and a breach of the peace."

The jury acquitted Waddington, but what particularly struck me was the colloquy that followed, and on which the pamphlet ended:

The Jury retired for an hour, and returned with a verdict of Not Guilty.

The Officer hinted to Mr. Waddington, that he had better ask the favour of the Court to have his board returned. Mr. Waddington. I ask no favour, Sir; I am acquitted by my judges, the Jury. The board is my property, and as such I shall take it without leave.

He then shouldered his board, and went off in triumph.

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Wolfe and Gazzaniga on Neuroscience:

If you read "I Am Charlotte Simmons" you know that Tom Wolfe has an ongoing interest in evolutionary psychology and neuroscience. In that book he mentions a book by Mike Gazzaniga, a friend of mine and leading neuroscientists. Here is a cool conversation between the two of them on the general topic. A transcript of the discussion is here (or at least it is represented as such--from what I can tell the video and transcript don't really match up completely).

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Mixed Verdict on UK Global Warming Documentary.--

In several posts at Climate Audit, Steve McIntyre reviews a “remarkable decision” by Ofcom, the U.K. television regulator.

After Channel 4 showed “The Great Global Warming Swindle,” a film skeptical of the “standard model” on global warming, complaints were filed by dozens of academics and ordinary citizens against Channel 4 for showing the film and against the filmmakers for not fairly presenting the individual views of some experts interviewed.

From McIntyre’s detailed posts it appears that almost all of hundreds of allegations of wrongdoing were rejected, but a small number were upheld. For example,

Ofcom found that [Professor] Wunsch had not been adequately warned under Practice 7.3 of the aggressive polemical turn that the production itself would take and for which there was little hint in his correspondence and actual interview. Ofcom:

it found no indication that Professor Wunsch had been informed of the polemical line that the programme would take, for example that the programme would state that the public was “being told lies” and the “scientific evidence does not support the notion that climate is driven by carbon dioxide, man-made or otherwise”. In the circumstances, the Committee considered that Professor Wunsch was not provided with adequate information to enable him to give informed consent for his participation.

While Wunsch may well have been naive, the obligation to comply with Practice 7.3 rested with the producers regardless of potential naivete on Wunsch’s part.

Wow! In the UK, you can be found guilty of some sort of TV or filmmaking misconduct for not adequately disclosing your angle on the story to the person you are interviewing. I wonder how this rule would be applied if it were imported into the US.

I sometimes ask reporters who call me what their angle on the story is. Some are fully honest, some are not. During the Arming America dispute, a reporter for a major British newspaper responded to my question that he was trying to find any errors in my long list of problems with Michael Bellesiles’s book so that he could write in defense of the book. I just laughed at the reporter's candor. It never occurred to me that there might have been a different journalistic standard in the UK.

24 Comments

[Josh Chafetz, guest-blogging, July 23, 2008 at 12:58pm] Trackbacks
Starting Anew on House Resignations,

or, Part V of Leaving the House. I've argued that the Constitution gives the House of Representatives the power to refuse resignations, and I've shown that this power has never been exercised. So, what now?

I'm going to suggest in this post that there are good reasons for ceasing to treat House resignations as a matter of right. Both of the reasons I suggest sound in republican political theory.

First, a couple of preliminaries: (1) The 1872 statute that I mentioned in my previous post poses no bar to altering House rules so as to require the House to accept resignations — the Rules of Proceedings Clause makes it clear that a statute cannot entrench a House rule so as to prevent its being altered by resolution. (I make this argument at greater length in my book, and others have made it, as well.) (2) I am not arguing that the current system is unconstitutional. Current House rules can be understood as automatic acceptance of tendered resignations — the fact that the House (as I have argued) has the power to refuse resignations does not mean that it is obligated to exercise that power. Therefore, (3) my argument that the House should alter its rules so as to hold a vote on tendered resignations is a policy-based argument, although, as Larry Solum has helpfully pointed out, and as I have tried to suggest in the article, those policy considerations are very much informed by constitutional values.

With those preliminaries in mind, I suggest that there are two paradigm cases which point to the desirability of requiring the House to vote on resignations. First, there is the punishment of Representatives who violate House ethics rules or the law. As I argued in this 2006 New York Times op-ed and this Yale Law Journal Comment (link in PDF), Congress could go a long way toward restoring public confidence in itself if it took more seriously its constitutional role as enforcer of its own ethical discipline. As we all know, members of Congress frequently resign when they are under an ethical cloud. The obvious implication of such resignations is that they prefer resignation to expulsion — you can't fire me; I quit! And while the House's punishment power extends to punishing former members for acts done while members, the House tends (understandably) to take an "out of sight; out of mind" approach.

But it seems to me that there is significant public benefit in forcing the House to make institutional comment on the behavior of its members — you can't quit; we're firing you!. We tend to think that self-discipline is a good thing, no less in corporate bodies than in individuals, and a body that has allowed a corrupt member to slink away into the night while muttering about "spending more time with his family" has failed to be self-disciplined. That cannot but affect our impression of our Congress, and I think it is no wonder that an institution which so frequently allows this to happen is held in such low esteem generally.

If inaction was not an option — that is, if the House had to vote on whether or not to accept the member's resignation — it might decide that it would be just as easy (and considerably more cathartic) to vote instead to expel him. The expressive value of such expulsions might do a lot to increase the public perception of congressional ethical standards.

Note that this rationale for refusing to allow resignations as a matter of right does not presuppose that Members will actually be kept in the House against their will. Rather, it changes the terms of the bargaining over how they leave the House. Under the current rules, the individual Member holds all of the power, as the decision is entirely hers. But the change proposed here would shift power to the House — it would allow the House as an institution to dictate the terms on which a Member leaves. More importantly, however, it would constrain the House in dictating those terms: if there has to be a floor vote, and Members have to vote either way, then they will have to explain why they voted to let an obviously corrupt Member walk away without any sort of condemnation. In short, Members under an ethical cloud who want to leave the House will still leave the House — but their colleagues will be forced to contemplate whether the voters consider the ethical transgressions of that Member sufficiently egregious to demand institutional comment by the House. That is, the expressive costs of allowing a Member to resign for spurious reasons will be internalized by the House, rather than externalized onto the polity.

The second paradigm case for requiring a House vote on resignations is the member who seeks to resign because he is simply sick of the job or wishes to take a job that is more lucrative or personally convenient. Allowing this member to resign as a matter of right sends the message that legislative service is just a job, something that one does for personal reasons. I suggest that a more normatively appealing conception of legislative service is as a republican duty — something akin to service in a volunteer military, which, while undertaken voluntarily, then cannot be quit until the terms of service are satisfied.

House service is unlikely to be foisted on one who did not seek it. Is it really so onerous to tell a person who ran for a House seat that she must remain there for two years? Members are well-compensated, in both financial and psychic wages, but for that compensation we have a right to demand that they commit to putting the public interest above their own for a short period. Allowing resignation as a matter of right sends the message that House service is a job like any other, a job that one takes because it suits one's ends, rather than a trust one holds to serve a greater good. In contrast, when leaving the House is a matter of legislative grace, rather than individual right, the message is sent that devotion to the public weal is held above desire for personal gain. This, I suggest, is closer to our aspirational conception of the House of Representatives.

It is, again, worth noting that this republican value does not depend on any Member's actually being refused permission to leave the House, and, again, it seems unlikely that Members would frequently be refused permission to leave. Rather, the value is in the mere fact that the Member has to ask. In so doing, she reinforces both the reality and the public perception of what a Representative's relationship to the polity ought to be.

This concludes my summary of the article. In my final post, I'll reply to some of the comments on my previous posts. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 46-55 of the article draft on SSRN.

13 Comments

DADT KO'd at NRO:

On the day that a House Armed Services subcommittee will hold a hearing on the continued viability of "Don't Ask, Don't Tell," National Review Online has a good column by Deroy Murdock arguing that openly gay people should be allowed to serve.

Murdock summarizes some familiar developments of the past 15 years that have undermined DADT: more tolerant attitudes toward gays among servicemembers; changing views of military brass; the overriding needs of the country in wartime, especially for certain specialists; the incongruity of enlisting felons while discharging law-abiding gay soldiers with excellent records of service; and the lessons from militaries like Britain's and Israel's that allow gays to serve.

He does offer one argument I hadn't seen before:

The battle-cry “Think of the children” also applies to this issue.

While gay couples and same-sex parents might disagree, gay service members generally are less likely to have spouses and kids awaiting them stateside. Therefore, pro-family conservatives should decry a policy that strips a childless gay soldier of his uniform, but keeps a straight GI in his body armor, far from his wife and kids, on multiple combat tours in Baghdad. Since 2003, NBC News reports, the Pentagon involuntarily has redeployed 58,000 such “stop-lossed” servicemen and women.

Eliminating DADT as pro-family social policy? James Dobson, call your office.

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D.C. City Council's False "Findings" of Facts on Firearms:

D.C. City Councilman Harry Thomas has introduced a resolution titled "Sense of the Council of Future Handgun Resolution of 2008." The resolution makes the following findings:

(1) Accidental deaths by firearms rank in the top 10 of accidental deaths in our country.

(2) Approximately 1,500 deaths per year result from the accidental use of a fire-arm. Of the 1500, 75% are young males between the age of 14 and 25, who unintentionally shoot themselves or someone else.
These finding are clearly false. According to the 2005 data (National Vital Statistics Reports, Volume 56, Number 10, April 24, 2008, Table 18), the total number of accidental firearms deaths, for all ages combined, was 789--about half the figure that Thomas claims. Firearms are not in the top 10 causes of accidental death, but are outranked by the following specified categories: Drowning, Fall, Fire/flame, Motor vehicle traffic, Pedestrian (not including from motor vehicles), Other land transport, Other transport, Natural/envivronmental, Poisoning, Struck by or against, Suffocation.

According to the "findings," there are about 1,125 accidental firearms deaths annually, involving males aged 14 to 25. Using the excellent on-line query tool from the National Center for Injury Prevention and Control, you can find the 2005 total number of fatal gun accidents for males aged 14-25 was 219.

The Thomas "finding" claimed that males aged 14-25 were the victims OR the perpetrators of 3/4 of total fatal gun accidents. I have no idea where Thomas gets this figure from. For the figure to be correct, that males 14-25, who are the victims of about one-quarter of all fatal gun accidents, would also have to be the non-victim perpetrators of about nearly 2/3 of accidents involving all other groups. (2/3 x 3/4 [fraction of accident victims who are not males 14-25] = 1/2. We add the 1/2 to the 1/4 of accidents in which males 14-25 are the victim, to get males aged 14-25 as perpetrators or victims in 3/4 of total accidents.) This seems implausible, although not formally impossible.

The incorrect "findings" about accidents are then followed by two more findings, which are really policy statements apparently based on the findings:

(3)There must be strict standards to regulate the sale of handguns in the District of Columbia, including stringent waiting periods for the purchase of hand guns, as well as the implementation of comprehensive training and education programs on the dangers of handguns through the DC Department of Parks and Recreation partnering with other agencies.

(4) There must be rigorous restrictions where gun stores can be located, a possible ban on private sales of handguns, and require gun shop operators to enter into voluntary agreements with community residents through their Advisory Neighborhood Commissions before such establishments can be issued a Certificate of Occupancy.
The finds are then followed the statement:

Sec. 3. It is the sense of the Council that strict and rigorous handgun regulations must be in place to ensure the health, safety, and welfare of District of Columbia residents.

Back in 1976, when the District's City Council enacted the handgun ban, it made the finding that "Most murders are committed by previously law-abiding citizens." This too is indisputably false, as detailed in the Heller amicus brief I wrote with Chuck Michel. (Pages 24-29.) The current City Council would have a better chance of passing gun laws which do not violate the Constitution if the Council were rigorous in its own factual investigations of the purported needs for extremely restrictive laws.

36 Comments

Service Nation, Part III: Mandatory Community Service is a Basic Assault on Anglo-American Liberty.--

Every year around so-called “tax freedom” day, people talk about moving from working for the government to working for themselves. But this is too glib because it conflates paying taxes with compelled physical labor. There is a big difference, one central to the history of Anglo-American liberty.

Under the medieval system in much of Europe, serfs or peasants owed obligations of actual physical labor (beyond military service) to their political overseers. As English liberties grew, this obligation of physical labor was replaced by the right to pay taxes instead, with the chief exception being obligations of military service for males. Free men were increasingly free to choose their line of work and pay their political overseers with money, rather than owing an obligation of service to whatever physical tasks happened to be thought important or profitable to the upper and the political classes.

Service Nation is an organization devoted to stripping away this bulwark of Anglo-American liberty, hoping by the year 2020 to require every young American man and woman to be drafted into either military or community service.

[4th UPDATE: Service Nation has emphatically stated that it does not favor mandatory service, favoring only voluntary service. My characterization of their goal for 2020 was based mostly on their 13th stated goal, which used to be on their website, but has since been scrubbed: "13. Launch a debate about why and how America should become a nation of universal national service by 2020: debating baby bond, lottery draft, new GI Bill, etc." Their email to me did not explain what they did mean by their 13th goal, but I hope to speak with them next week. Their more immediate goals include passing a National Service Act in 2009 (which would probably not require universal service).]

But they do not even discuss the Constitutional Amendment that ought to be required before they can mandate community service and take away the hard-won Anglo-American liberty from involuntary servitude. The Constitution gives the Federal Government the power to raise a military, which in the 18th century contemplated an obligation of male citizens to serve in the military. In my opinion, the Constitution does not give the Federal Government the power to compel community service.

Let’s hope that the Supreme Court would not permit Service Nation's move backwards to a more feudal relationship between ordinary people and the people who govern them. One senses that de Toqueville understood American values of volunteerism and freedom of association much better than the people behind Service Nation, an understanding that was also concerned about the tyranny of the majority.

UPDATE: Service Nation's coordinator, Alan Khazei, argues that doing community service turns on one's "'justice nerve. . . . And once a justice nerve is turned on, it rarely goes off."

It seems to me that, if it really turned on one's justice nerve, one would have a good enough sense of justice to oppose Service Nation's unjust goal of state-mandated public service. I wonder whether instead forced community service would tend to turn on one's "collectivist nerve."

2d UPDATE: Comments below helpfully point to Butler v. Perry (1914), in which the Supreme Court upheld a Florida statute that required EITHER 6 days of labor a year on local roads OR the provision of an able-bodied substitute OR the payment of $3 to the road repair fund.

Although the statute allowed the payment of a tax to avoid service (which made service not mandatory), from reading the case my guess is that the Court would probably have upheld the statute even if it were truly mandatory.

Whether requiring a full year, rather than 6 days a year, would be allowed and whether one could expand services beyond road building duties is unclear.

3d UPDATE:

1. Philip Hamburger points out that the federal government is one of enumerated powers, while the states have more general powers. This wouldn't affect the involuntary servitude argument, but it would affect whether the Constitution gives the Federal Government power to compel participation in an "army" of domestic service workers several times larger than the US military.

2. Ann Althouse comments:

Service Nation. It sounds like the title of a dystopian novel.

You'd think before naming your movement, you'd check the etymology of your key word:

service...

ETYMOLOGY: Middle English, from Old French, from Latin servitium, slavery, from servus, slave.

But as Lindgren notes, one man's "justice nerve" is another man's "collectivist nerve." Something might sound so right to you, that you don't even notice how it sounds to others.

3. I came across these quotations from De Toqueville:

a. Every central government worships uniformity: uniformity relieves it from inquiry into an infinity of details.

b. Democracy extends the sphere of individual freedom, socialism restricts it. Democracy attaches all possible value to each man; socialism makes each man a mere agent, a mere number. Democracy and socialism have nothing in common but one word: equality. But notice the difference: while democracy seeks equality in liberty, socialism seeks equality in restraint and servitude.

I very much doubt that the highest and best use of ALMOST EVERY American for a year of his or her life is to spend it in a government program.

4th UPDATE: See the 4th UPDATE embedded in text above.]

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[Josh Chafetz, guest-blogging, July 23, 2008 at 8:30am] Trackbacks
Congressional Practice,

or, Part IV of Leaving the House. Having thus far argued that no right to resign from the legislature existed in British law or (with the exception of Maryland) in the pre-constitutional American legislatures, and having argued that, against this background, the decision to include a mention of resignation in the Senate Vacancies Clause but not in the House Vacancies Clause was intentional and meaningful, we now come to the question of how the House has actually treated resignation.

The answer, in a nutshell, is that it has always allowed them. There were no resignations from the House in the First Congress. However, in the Second Congress, William Pinkney was elected to the House from Maryland. He never took his seat, and in September 1791, he sent a letter to the Governor seeking to resign his seat. The Governor issued a writ for a new election, which was won by John Francis Mercer. When Mercer appeared to take his seat, the issue of who, if anyone, was entitled to the seat was put before the House Committee of Elections.

The Committee recommended that Mercer be seated, but substantial debate ensued on the House floor. There were, essentially, three positions represented. One was that, because Pinkney had never been seated, this was a refusal rather than a vacancy, and the two were treated differently. On this view, Mercer should be seated because Pinkney had never taken the oath. The second view was that this was a resignation (or that resignations and refusals were to be treated the same), and that resignations were perfectly fine. The third view was that Pinkney could not give up his seat without the House's consent. Ultimately, the House seated Mercer, but without choosing between the first two positions.

Later in the Second Congress, Joshua Seney, a Member from Maryland, sought to resign his seat. The Annals make clear that there was a debate over the constitutional issues surrounding a resignation, but unfortunately, the Annals contains only a very truncated summary of the debate. Without any resolution by the House, the Maryland Governor ordered a new election, and William Hindman was returned. When he appeared, he was seated.

Thereafter, the matter was more or less settled. In the first resignation from the Third Congress, John Francis Mercer (the same one who replaced Pinkney) resigned his seat and was replaced by Gabriel Duvall. The debate on this seems almost non-existent, but it is worth noting that, while some Members wanted to seat Duvall without voting on the Committee of Elections’ report, James Madison insisted that the report be voted on, perhaps indicating that Madison continued to believe that a resignation was not effective until the House voted to accept it. In the second resignation from the Third Congress, Uriah Forrest, a Representative from Maryland, resigned and was replaced by Benjamin Edwards. This appears to have occasioned no debate at all, but the House did vote to seat Edwards.

What was going on here? Well, first, it is worth noting what the votes to seat the replacement members do not tell us. Clearly, from the debate over Pinkney, some Members thought that there was a right to resign a House seat. But some may have felt, as Madison apparently did, that it was, in fact, necessary for the House to vote to accept resignations. Note that all of the replacements mentioned above were seated only after a vote of the House. Thus, the fact of their seating likely reflected a coalition of (a) Members who believed that the replacements were entitled to the seat because their predecessors had been entitled to resign, and (b) Members who believed that the resignation of the predecessors was a matter of grace, but that they were voting to extend that grace.

Moreover, it may not have escaped notice that the first four resignations from the House were all members from Maryland, the only state whose pre-1787 Constitution allowed for legislative resignation. The norm that resignation was a matter of right may have been introduced into Congress by Marylanders and subsequently spread to their colleagues. Consider, in this vein, that Pinkney's letter announcing his resignation read, "I enclose my resignation, which you will be please [sic] to forward to the executive ...." Contrast that with a roughly contemporaneous letter by Christopher Gore, a member of the Massachusetts state legislature, "ask[ing] leave of the Hon. House" to give up his seat.

Consider also a 1795 exchange of letters between De Witt Clinton, writing on behalf of his uncle George Clinton, the Governor of New York, and the New York congressional delegation. Silas Talbot, a Representative from New York, sought to resign his House seat by letter to the Governor. Clinton replied, in a letter addressed to the entire delegation, that only the House itself, and not the Governor, was competent to declare Talbot's seat vacant. The delegation replied that "whatever doubt might have been entertained on this point at the commencement of the government, the question has been since settled in practice .... [W]e beg leave to refer your Excellency to the printed Journals of the house of Representatives ...." In other words, they pointed to the Maryland precedents. Clinton replied (and here I paraphrase) that he really didn't give a darn what the Journals said. Talbot finished out his term (which, in fact, expired before the exchange of letters ended). In other words, we see a Maryland norm, brought to Congress by members of the Maryland congressional delegation, spread to their congressional colleagues, who then attempt to bring it back to their home states, where it surprises those familiar with their own states' legislative norms.

This may explain how resignation came to the House, but it is certainly true that resignation did, indeed, come to the House. Current federal law, in effect since 1872, allows states to set the time for filling House vacancies, "whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected." (Emphasis added.) This explicit recognition of the possibility of resignation is accompanied by a House practice that "[a] Member properly submits his resignation to an official designated by State law and simply informs the House of his doing so, the latter communication being satisfactory evidence of the resignation." In short, the House has essentially concluded that resignation is a matter of individual right — that is, a matter for the Member alone to decide. Contra Madison in the Third Congress, a vote is no longer taken.

In my next post, I'll argue that longstanding congressional practice notwithstanding, there are good reasons for requiring the House to vote to accept resignations. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 36-46 of the article draft on SSRN.

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Service Nation, Part II: The Goals of Its Leader.--

According to the Americans for a National Service Act, “Service Nation is coordinated by Alan Khazei and the hard-working and talented people of ‘Be The Change.’”

Last year Alan Khazei argued in a speech at Harvard that a year of “volunteer” work should be a mandatory requirement for admission to college. In return, the student would receive a year of tuition. According to the Harvard Crimson, Harvard students were cool to the idea.

Khazei has been pushing for universal national service since he was a young intern in Washington. He postponed law school to work for Gary Hart in 1984, the only candidate favoring mandatory universal national service, and himself a supporter of Service Nation.

Khazei explains his ultimate goal:

Imagine if every nation in the world had a year of full-time service as a rite of passage for all young people growing up. And imagine if we had a global service corps that united young people from North America, Africa, The Middle East, South America, Europe, and Asia. Working together as a true global generation and role modeling what the very best of humanity can be.

Imagine just how different our nation and world would be as a result.

We would have the enormous energy and idealism of each young generation put to work against the most pressing needs of our day. We would turn on each generation’s “justice nerve.” That inner voice that says each one of us CAN make a difference and every one of us MUST try. . . . And once a justice nerve is turned on, it rarely goes off.

We would have a nation and world in which we not only felt –- but truly were –- all of us in this together. Universal national service would, I believe, lead to developing the political will to confront and solve our most pressing challenges. It would also lead to much broader participation in our democracy, our public institutions, our military and our civic life, which is vital for a healthy republic.

And so this vision captured my imagination, and when I was 21 years old, I did what many Harvard government majors who believed in changing our country did then, I went to Washington DC to spend a summer as a Congressional Intern. I worked for my Congressperson from NH’s First District, Norm D’Amours. Congressman D’Amours was a believer in bringing back the draft. I thought that voluntary [sic] universal national service with both military and civilian options was a better idea.

So, I asked my Congressman if I could prepare a report for him on national service as an alternative to the draft. And he said sure. I realize now that he was probably happy that I’d have something to do for the summer that would keep me out of his hair. Even back then, I was a little too earnest and enthusiastic. Little did I know that summer would set me on a path for the next 25 years. . . .

The solution is to develop a system of voluntary universal national service for our country and for the world. To call upon all young adults to take at least one year to learn the hard and rugged skills of practicing idealism. I have dedicated the past 20 years of my life to this dream.

In a recent article excerpted on Service Nation’s website, Khazei is more specific:

Alan Khazei, CEO of Be The Change, said that the concept is to leverage the national service volunteers to help manage community volunteers. The national service individuals would be stipended through AmeriCorps or other federal programs. “It’s taking to more traditional national service. The statistics show $1 invested brings back $1.50 to $3 in social benefit,” said Khazei.

The hope is to boost the AmeriCorps stipended staff to 1 million by 2020, from the current roughly 70,000, Khazei said.

Note that Kazei describes his goal as a National Service program that is both voluntary and universal. Since we are not a totalitarian regime, a national service program can't be both universal and voluntary. It appears that Kazei means "voluntary" in the way that Charles Rangel means voluntary: service is mandatory, but you may choose which program to which to devote a year (or two) of your life. But see UPDATE below, which reaches a different conclusion on the last point.][

Coming in a few days: the political implications of Service Nation.

UPDATE:

1. Service Nation responds. In addition to updates here, here, and here, Service Nation also responded by email specifically to the above post:

You say: "Khazei has been pushing for universal national service since he was a young intern in Washington. He postponed law school to work for Gary Hart in 1984, the only candidate favoring mandatory universal national service, and himself a supporter of Service Nation."

Alan does not and has never supported mandatory universal national service (though it is his fondest wish that that the opportunity to serve will become universal and that so many Americans will be inspired to volunteer to serve that service in America will be near-universal). Nor did Gary Hart, for that matter. In this quote from Khazei's Harvard speech (also posted on the Volokh Conspiracy), Khazei says, "The solution is to develop a system of *voluntary* universal national service for our country and for the world."

2. Gary Hart. I claimed that in 1984 Gary Hart favored mandatory universal national Service. Service Nation claims that Hart did not.

The newspapers from 1984 support my claim about Hart (though apparently he wasn’t the only candidate supporting mandatory national service). According to a long, detailed 1/16/84 Boston Globe account by Thomas Oliphant and Curtis Wilkie of a Democratic debate:

Hart, McGovern, and Askew proposed a program of compulsory national service, under which a young person would have a choice between the military and other forms of public service, while Mondale and Cranston said the current system is working satisfactorily and should not be changed except in a serious national emergency.

In an August 24, 1984 National Review story on “neoliberals,” they list as neoliberals Paul Tsongas, Gary Hart, Bill Bradley, Robert Reich, and Lester Thurow. Among the things they supposedly share is “visions of a technocratic government in which education is ‘investment in human capital,’ the state and big capital work hand in hand, and ‘national service’ is compulsory for all.”

After the 1984 fall election was over, Hart seems to have rethought his position toward making service mandatory, but the AP (11/16/1984) reported that Hart had earlier supported mandatory national service:

On another subject, Hart said he might favor reintroduction of a U.S. military draft. He has previously supported some form of mandatory national service military or civilian.

3. Khazei’s view on full-time mandatory service. As near as I can tell, Alan Khazei has never advocated full-time compulsory service mandated by the government, though according to the Harvard Crimson (which may have misunderstood him), Khazei advocated that colleges require one year of service before a student could be admitted. Since students are not required by law to attend college, perhaps making a year of service a mandatory prerequisite for college would not violate an extremely cribbed view of "voluntary."

I think Khazei’s views on full-time mandatory service are best expressed in his own words. He rejects it in the short run on pragmatic grounds, and is at most ambivalent about it in the long run:

Khazei: If we had a universal system of national service with this kind of GI Bill, every single young person in this country would realize: the American dream is real for me. I have to earn it. I have to serve my country. I think if we had this GI Bill, there would be hundreds of thousands of people that would sign up.

Q: . . . Why not make it conscription? . . .

Khazei: One is, you have constitutional issues, first of all, in terms of having a mandatory civilian service. Secondly, even if we all decided — it’s almost a red herring right now. People like to debate it, it’s sexy, it’s controversial.

But we don’t have the infrastructure YET. Conscription would mean 4 million people a year, and right now there are 75,000 [full-time in Americorps]. There are 1.4 million nonprofits in America, so you could absorb hundreds of thousands, even millions of people.

But what I suggest is: try this GI Bill, scale it up over the next ten years. Get to a critical mass, and then the country can have a real debate — should we make this mandatory or not — once we have the infrastructure in place, once we've seen this idea at scale, once we see how it affects the culture of the country. Right now to say mandatory, I think, it's fun to talk about, it's controversial, people like to argue, constitutional rights. I don't think the country — even practically in terms of an infrastructure point of view — is ready for that. And we don't need it.

I think if we had a GI Bill, it would become — and also if you had a real call to service — you could get the benefits of a universal system without the negatives of I was forced to do this. People who apply to City Year, they choose to do it, and they get SELECTED, and they feel special because they volunteered. And I think that’s an important aspect of this that we would lose in a mandatory system.

This sounds a bit like the debate that I noted was stated as Goal 13 of Service Nation.

4. Khazei’s view of Mandatory Part-time Service for School Children. In 2003 Khazei and Michael Brown wrote with seeming approval (see below) of programs in Maryland, Philadelphia, and Chicago that require service-learning for graduation or promotion (they include required hours of actual service). Khazei and Brown further wrote: “we should . . . provide incentives for states to require service-learning in every school district.” They also wrote of making “service-learning an integral part of every child’s education from kindergarten through college.”

As to the definition of service learning, Khazei and Brown cite the National Service Learning Website. Not only does that website define service-learning in a way that requires actual “tasks” or “service,” but it states that “all seem to agree” with that core definition:

Even though there are many different interpretations of service-learning as well as different objectives and contexts, we can say that there is a core concept upon which all seem to agree:

Service-learning combines service objectives with learning objectives with the intent that the activity change both the recipient and the provider of the service. This is accomplished by combining service tasks with structured opportunities that link the task to self-reflection, self-discovery, and the acquisition and comprehension of values, skills, and knowledge content.

For example, if school students collect trash out of an urban streambed, they are providing a service to the community as volunteers; a service that is highly valued and important. When school students collect trash from an urban streambed, then analyze what they found and possible sources so they can share the results with residents of the neighborhood along with suggestions for reducing pollution, they are engaging in service-learning. In the service-learning example, the students are providing an important service to the community AND, at the same time, learning about water quality and laboratory analysis, developing an understanding of pollution issues, learning to interpret science issues to the public, and practicing communications skills by speaking to residents. They may also reflect on their personal and career interests in science, the environment, public policy or other related areas. Thus, we see that service-learning combines SERVICE with LEARNING in intentional ways. –- National Service Learning Website.

Despite Khazei’s expressed support in 2003 for states requiring service-learning (and thus apparently actual service) in every school district in the state and his support for making “service-learning an integral part of every child’s education from kindergarten through college,” Khazei has never (to my knowledge) referred to his own views as compulsory – indeed, the word appears to be taboo in some segments of the movement.

I quote Khazei’s own words at length so you can judge for yourself whether he favors schools or states imposing part-time compulsory service as a requirement for graduation:

Alan Khazei and Michael Brown, New Pathways to Civic Renewal, in Shaping the Future of American Youth: Youth Policy in the 21st Century (2003):

Our vision is that one day the most commonly asked question of a young person will be: “Where are you going to do your service year?” It is time for our system of national service to evolve into a civic institution for the new century. . . .

We believe that in order to answer such a large challenge, the nation should set and meet three ambitious goals:

Make service-learning an integral part of every child’s education from kindergarten through college, including a year of national service;

• Create a new “Senior Heroes” program . . .

• Expand AmeriCorps to enroll a critical mass of one million young people annually by 2020 . . . .

BUILDING NATIONAL SERVICE TO SCALE

To build national service to scale, we need to simultaneously develop the key programs in which people will serve and the funding infrastructure required to make those programs sustainable. We recommend developing five key programmatic initiatives:

[1]Service-Learning

Even the youngest elementary school children can make a difference in the lives of senior citizens or help plant community gardens and provide food for the homeless. In doing so, children develop a lifetime sense of pride and ownership in their communities. Because of the excellent work of schools, community programs, universities, and such programs as Learn and Serve America, over 13 million students during the 2000-2001 school year were able to participate in service-learning activities. Service-learning combines structured opportunities to serve with academic curriculum that encourages self-reflection, self-discovery, and the development of values, skills, and knowledge. Research shows that involving young people in these activities has a positive impact on their personal development, sense of civic and social responsibility, citizenship skills, academic skills and knowledge, and career aspirations. Furthermore, service-learning has a positive impact on schools and contributes to community renewal.

Our goal should be to engage all public school students to pursue service-learning activities as an essential part of their school curricula by the year 2020. Already, the state of Maryland and several cities, including Philadelphia and Chicago, require their students to participate in service-learning activities. Seven states now permit students to apply community service or service-learning activities toward their high school graduation requirements. Ten states, and the District of Columbia encourage service-learning in classrooms. To promote greater use of service-learning in classrooms across America we should increase federal funding to Learn and Serve America, provide incentives for states to require service-learning in every school district, and leverage AmeriCorps members to help schools implement service-learning programs. The scope and impact of service-learning should be expanded by:

• Providing schools with “Community Service Coaches. Research suggests that adult leadership is crucial in communicating civic principles of tolerance and social justice to children. To ensure the success of nation-wide service-learning curricula, we should use federal and state funds to provide each public school with a full-time “Community Service Coach.” They would coordinate each school’s service-learning activities and run additional service programs for students, such as after-school and weekend service clubs. AmeriCorps alumni would be likely candidates to serve as co mmunity service coaches.

Thus, though Alan Khazei does not favor mandatory full-time national service at this time –- he has argued that the debate over making full-time service mandatory is premature until the service infrastructure is brought up to scale — I leave it to readers to decide if he nonetheless favors mandatory part-time service for school children.

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Obama Comment Thread on National Service.--

On this thread, you are welcome to post on Barack Obama’s “civilian national security force,” Service Nation, and possible political responses by John McCain.

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Service Nation, Part I: Time Magazine Announces Public Service Campaign.—

[UPDATE: For some of Service Nation's response, see the update below.] A relatively new group, Service Nation, is planning to kick off a campaign with a Summit for “National Service” on September 11. Time Magazine has signed on to promote the effort. The website trumpets its training of “Change Agents” in cooperation with “Change, Inc.” Its blog is called ChangeWire. Does this theme sound familiar?

The website makes it clear that it is not just calling for individuals to get involved, but it is calling for a new National Service Act that will involve the government in transforming American society:

To begin this journey, Service Nation will unite leaders from every sector of American society with hundreds of thousands of citizens in a national campaign to call on the next President and Congress to enact a new era of service and citizenship in America, an era in which all Americans will work together to try and solve our greatest and most persistent societal challenges. This campaign will launch with a Service Nation Summit, Sept. 11-12 in New York City, and build with a national grassroots movement aimed at inspiring widespread public support for a new and transformational National Service Act that will encourage all Americans to step forward and take the lead in bridging our divides, strengthening our communities, and building a more vibrant democracy.

The five co-chairs of the Service Nation Summit include Obama aide Caroline Kennedy, Vartan Gregorian (President of the Carnegie Corporation and former Democratic donor), Rick Stengel (Managing Editor of TIME Magazine and former speechwriter for Bill Bradley), Bill Novelli (CEO of AARP and former donor to both Republican and Democratic candidates, including John McCain in 1999), and Alma Powell (Chair of America's Promise Alliance and wife of Colin Powell). Gregorian and Novelli were not originally listed as co-chairs when the Summit was first announced.

The 64 members of the Leadership Counsel include three [two] potential Democratic Vice Presidential candidates: Bill Richardson, Sam Nunn, Jennifer Granholm – as well as one potential Republican Vice Presidential candidate: Rob Portman.

What is this National Service Act that Service Nation favors?

Charles Rangel’s National Service Act, which is [suppoorted by some segments of the movement, but not Service Nation, and is now] languishing before Congress, provides for a universal draft with two years [service] for virtually all persons aged 18-42, with no deferment for college. The purpose of Rangel’s bill is:

“To require all persons in the United States between the ages of 18 and 42 to perform national service, either as a member of the uniformed services or in civilian service in furtherance of the national defense and homeland security . . . .”

Here is how the civilian service is described in the bill (sec 102(b)):

a civilian capacity that, as determined by the President, promotes the national defense, including national or community service and service related to homeland security.

Note the interpretation of community service as promoting national defense, just as in Barack Obama’s July 2, 2008 speech, a juxtaposition that confused most bloggers. Under Rangel’s bill, if one is selected for induction into the military, one may choose instead to do civilian service. With unintentional irony the bill calls this mandatory service “Voluntary Service.”

Sec. 103(e) Voluntary Service — A person subject to induction under this title may--

(1) volunteer to perform national service in lieu of being inducted; or

(2) request permission to be inducted at a time other than the time at which the person is otherwise called for induction.

In the Wikipedia entry on Rangel’s statute is this intriguing statement:

The Universal National Service Act of 2007 is primarily sponsored by Congressman Charles Rangel of New York. Advocates for National Service include Senator Chris Dodd, Time Magazine Editor Rick Stengel, and NationalServiceAct.com writer Jason Blindauer.

This is the same Rick Stengel who is a co-chair of the Service Nation Summit and the same Jason Blindauer, whose organization is listed as one of the 100 members of Service Nation’s organizing committee and is one of the leaders of the movement for a National Service Act.

The Americans for a National Service Act (ANSA), for which Blindauer is listed as the “Coordinator,” indicates that it is part of Service Nation’s campaign. His organization’s website gives some idea about what the goals of Service Nation are:

Service Nation Campaign

Service Nation is a 16-month non-partisan grassroots and grass top political campaign intent on pushing the issue of National Service to the forefront of American life and convincing the next President and Congress to put into law a Voluntary National Service Act by September of 2009.

The secondary goal of Service Nation is to set America on a trajectory to become a nation of universal national service by 2020.

Who is Service Nation?

At the top, Service Nation is comprised of [here 17 people are listed, the last three of which are] Caroline Kennedy, Samantha Power, and TIME Magazine Editor Rick Stengel. The Campaign also includes many active and retired general/flag grade military officers.

At its nerve center Service Nation is coordinated by Alan Khazei and the hard-working and talented people of “Be The Change.” Its nerve endings are 92 different organizations from across the country including

Americans for a National Service Act.

At its roots, military, civil service, and social service veterans who have proven through action their dedication to serving America carry the message of Service Nation.

The last and most important component of Service Nation is YOU.

What are the policy objectives of Service Nation?

Currently, less than 4 million Americans are involved in full-time service, and less than 1/3 of us are involved in part-time service. The main policy objective of Service Nation is to engage an additional 5 million Americans in service by 2012.

So the main policy objective is a large increase in service by 2012 and the secondary goal is universal (ie, mandatory) national service for all young Americans by 2020. The ultimate goal then of Service Nation is universal service such as required in Rangel’s bill, but most likely for one year rather than two.

Here are Service Nation’s more specific goals as laid out in Powerpoint slides on their website (number 13 is mandatory universal service for both men and women):

Engage 1 million Americans in full-time service, leveraging an additional 100 million volunteers each year.

1. Enroll one million Americans annually in a revitalized and expanded AmeriCorps national service program. Create new corps focused on education, public health, disaster relief, and energy conservation.

2. Send 100,000 Americans overseas each year through the Peace Corps, Volunteers for Prosperity and Global Service Fellowships.

3. Engage students in service learning opportunities by expanding Learn and Serve America to reach 3 million students.

4. Engage teenagers in a “Summer of Service” to address problems in their own backyard.

5. Provide opportunities to returning war veterans who want to continue to serve their country through a civilian service opportunity at home or abroad.

6. Make permanent the Citizen Corps and engage 500,000 Americans.

7. Create a new initiative of “Encore Service Careers” for baby-boomers and seniors.

8. Offer new support and performance standards for 400 volunteer centers.

9. Create the permanent National Service Council to play a similar role as the National Security Council and National Economic Council.

Create a Democratic Renewal in our Nation.

10. Establish a U.S. Public Service Academy.

11. Convene new Citizen Congresses.

12. Create regular Youth Constitutional Conventions at the National Constitution Center.

13. Launch a debate about why and how America should become a nation of universal national service by 2020: debating baby bond, lottery draft, new GI Bill, etc.

Foster Social Entrepreneurship

14. Create a Social Investment Fund to create a research and development (R&D) arm and growth capital market for the social sector. The fund would provide the financial infrastructure and leverage needed to identify and support promising innovations in the social sector, test their impact, and take them to scale.

15. Offer social entrepreneur fellowships to graduates of national service programs who have identified a need and a creative solution to meeting that need in order to bring their program model to fruition.

16. Create an office of "Social Innovation and Results" in the White House.

This is a breathtaking set of proposals that would create a bureaucracy that indeed might be “just as powerful, just as strong, just as well-funded” as our military. It would be much larger than the military. Note the founding of a new National Service Academy like the existing military academies.

Service Nation’s short-term goal may be a staggering increase in voluntary national service and the federal bureaucracy, but the ultimate goal of Service Nation is a universal draft by the year 2020, as they openly disclose.

UPDATE:

1. In response to my posts, Service Nation has now scrubbed its list of goals (quoted above) from its website. You can still read the first 13 of Service Nation's goals on the website of one of its members (but see below).

Number 13 was: "Launch a debate about why and how America should become a nation of universal national service by 2020 . . . ."

Note that the debate is not over WHETHER it should become a nation of universal national service, but only WHY and HOW it should become one.

2. Ilya Somin has already posted on Service Nation's denial that it favors mandatory universal national service, including quoting a FAQ from their website on the issue.

As I wrote above and Ilya repeated, I don't see how a national community service program can be both universal and voluntary.

And, of course, several other countries do have programs of "universal national service" either for men or for both sexes. To my knowledge (I might be wrong), none of these systems are voluntary.

One of the advantages of blogging is that I was able to quote all of Service Nation's main goals verbatim from their website, so people could see for themselves both what they said in their own words and why I interpreted them to have as a goal mandatory service.

One has to recognize that even some universal service programs characterized as "voluntary" by their proponents are fully mandatory, as I showed regarding Rangel's plan. And Service Nation did not describe its goal in item 13 as voluntary. Proponents of mandatory universal service programs rarely describe their own proposals as "mandatory," since that word rightly carries a stigma.

Despite Service Nation's vigorous claims of having been misunderstood and of favoring only voluntary service, their email to me did not even mention item 13 or their own expressed 2020 goal. Since all of their other goals seem to be intended to be enacted in sweeping 2009 legislation or executive acts, if they intended only voluntary programs, I don't understand why they would want to wait a decade or so by setting a deadline of 2020."

I hope to get more clarification of their position next week.

3. I wrote above:

The Americans for a National Service Act (ANSA), for which Blindauer is listed as the "Coordinator," indicates that it is part of Service Nation's campaign. His organization's website gives some idea about what the goals of Service Nation are . . . ."

In an email, Tim Zimmerman responded:

We have many partners, with many different views on service. Jason is a great guy, a valued member of our coalition, and a veteran of the Iraq War who knows more than most about the meaning of service. But all facts, goals, and beliefs attributed to ServiceNation really should come from the ServiceNation website at http://www.servicenation.org.

I cited the site of Americans for a National Service Act, coordinated by Jason Blindauer, for several reasons. As noted above, he was mentioned by Wikipedia along with the co-chair of Service Nation's Summit, Rick Stengel (of TIME). Second, ANSA is a significant player in the movement for a National Service Act in its own right. Third, ANSA, a "valued member" of Service Nation, had the most extensive discussion of Service Nation's views on the web. Fourth, the information I quoted was Blindauer's (or ANSA's) description of the Service Nation movement; it was the best source anywhere for the centrality of Alan Khazei to Service Nation, a fact that I learned from ANSA's site and that I definitely wanted to include.

Fifth, if an organization is being accused of being excessively restrictive of human freedom, it might be best not to respond by arguing that "all facts, goals, and beliefs attributed to ServiceNation really should come from the ServiceNation website . . . ."

Such an approach would be the end of journalism. If someone were doing a profile of Barack Obama, couldn't they include information provided by Obama's friends? What I quoted about Service Nation from Blindauer's site was a description of Service Nation that could have been written by a journalist. Since Zimmerman calls him "a great guy, a valued member of our coalition," and since Zimmerman does not suggest that Blindauer's description is in any way incorrect, it seems odd to complain that I quote (presumably fair) descriptions of Service Nation from one of its valued members. I think it entirely proper to quote members who know the organization about what the organization is and who is involved, especially when that information is not at all inconsistent with what is on Service Nation's website.

Last, because Service Nation has scrubbed its website of its list of goals, unfortunately Blindauer's ANSA website, which still lists Service Nation's first 13 goals above, is at the moment the best place on the web to see what the goals of Service Nation actually are — unless Service Nation has significantly changed direction in response to my expose, which is unlikely but not impossible.

4. In an email Tim Zimmerman argues that Service Nation does not support Charles Rangel's bill for mandatory universal service. In the post above, I didn't say that they did (because I couldn't tell for sure in part because Service Nation was not advocating universal service in 2009, but rather by 2020). I was describing various strands in the movement. Also, Rangel's bill (quoted above) shows that in the movement for universal service, sometimes what is explicitly defined as "voluntary service" is fully mandatory.

In an email, Tim Zimmerman contrasted his view with Rangel's bill:

We do not support mandatory national service or a universal draft. And nowhere on our web site, or in any public utterance by Alan Khazei, has this been said. Rather, we support the idea of voluntary community and national service. We are working to both inspire more Americans to volunteer their time and to encourage our leaders to create service opportunities for every American who wants to volunteer their time in their community, or chooses to serve his or her country for a year in AmeriCorps, Peace Corps, or some other national service program.

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Justice Department Broadens Investigation of Federal District Judge Samuel B. Kent:

Texas federal district Judge Samuel B. Kent is the object of an extensive criminal investigation by the Justice Department, which has now been expanded to include additional allegations of misconduct:

A Justice Department investigation into the sexual conduct of U.S. District Judge Samuel Kent has expanded to include allegations that he accepted but failed to report gifts and also sold his home in a deal arranged by a lawyer with dozens of cases in his court, Kent's own attorney and other lawyers have confirmed.

The ongoing investigation was launched last year after Kent's former case manager complained that the judge sexually molested her. Since then, several prominent attorneys have been subpoenaed by federal prosecutors to appear before a Houston grand jury involving other allegations of judicial misconduct....

Regular VC readers may recall that Kent was reprimanded and suspended by the Fifth Circuit Judicial Council last year for sexual harrasssment (see here for a series of posts on this issue), and has also been accused of other ethical violations over the years. In December, the Justice Department began a criminal investigation into the various accusations against Kent. The Fifth Circuit and the House Judiciary Committee (which has the power to initiate impeachment proceedings against Kent) are apparently waiting for the results of the DOJ investigation before deciding on whether further sanctions against him are warranted.

What is astounding about the Kent case is the sheer number and variety of allegations of criminal wrongdoing and unethical behavior against him - including sexual assault, favoritism towards particular lawyers, acceptance of improper gifts, and bias against certain litigants. He also has the dubious distinction of having been disciplined by both the Fifth Circuit Judicial Council and the Chief Judge of his district (who reassigned 85 cases from Kent to other judges because of apparent favoritism towards a lawyer involved in the cases who is a close friend of Kent's). That doesn't prove that all the allegations against Kent are true. But it certainly suggests the need to continue the investigation and to give serious consideration to the possibility of impeachment.

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Fannie Mae’s Thugs.--

Some people thought that I was too hard on the former managers of Fannie Mae, whose greed and misconduct in their Enron-style accounting scandal of 2003-4 helped to destroy the soundness of a huge quasi-government agency.

Now comes Paul Gigot recounting just how thuggish their behavior was. The Fannie Mae officials at the time made millions in unearned profits from phony accounting to maximize their bonuses while trying to intimidate –- and when that didn’t work, to destroy — any politician who dared to stand up to their corruption.

Paul Gigot writes:

The Fannie Mae Gang

Angelo Mozilo was in one of his Napoleonic moods. It was October 2003, and the CEO of Countrywide Financial was berating me for The Wall Street Journal's editorials raising doubts about the accounting of Fannie Mae. I had just been introduced to him by Franklin Raines, then the CEO of Fannie, whom I had run into by chance at a reception hosted by the Business Council, the CEO group that had invited me to moderate a couple of panels.

Mr. Mozilo loudly declared that I didn't know what I was talking about, that I didn't understand accounting or the mortgage markets, and that I was in the pocket of Fannie's competitors, among other insults. Mr. Raines, always smoother than Mr. Mozilo, politely intervened to avoid an extended argument, and Countrywide's bantam rooster strutted off.

I've thought about that episode more than once recently amid the meltdown and government rescue of Fannie and its sibling, Freddie Mac. Trying to defend the mortgage giants, Paul Krugman of the New York Times recently wrote, "What you need to know here is that the right — the WSJ editorial page, Heritage, etc. — hates, hates, hates Fannie and Freddie. Why? Because they don't want quasi-public entities competing with Angelo Mozilo."

That's a howler even by Mr. Krugman's standards. Fannie Mae and Mr. Mozilo weren't competitors; they were partners. Fannie helped to make Countrywide as profitable as it once was by buying its mortgages in bulk. Mr. Raines — following predecessor Jim Johnson — and Mr. Mozilo made each other rich. Which explains why Mr. Johnson could feel so comfortable asking Sen. Kent Conrad (D., N.D.) to discuss a sweetheart mortgage with Mr. Mozilo, and also explains the Mozilo-Raines tag team in 2003.

I recount all this now because it illustrates the perverse nature of Fannie and Freddie that has made them such a relentless and untouchable political force. Their unique clout derives from a combination of liberal ideology and private profit. Fannie has been able to purchase political immunity for decades by disguising its vast profit-making machine in the cloak of "affordable housing." To be more precise, Fan and Fred have been protected by an alliance of Capitol Hill and Wall Street, of Barney Frank and Angelo Mozilo.

I know this because for more than six years I've been one of their antagonists. Any editor worth his expense account makes enemies, and complaints from CEOs, politicians and World Bank presidents are common. But Fannie Mae and Freddie Mac are unique in their thuggery, and their response to critics may help readers appreciate why taxpayers are now explicitly on the hook to rescue companies that some of us have spent years warning about.

My battles with Fan and Fred began with no great expectations. In late 2001, I got a tip that Fannie's derivatives accounting might be suspect. I asked Susan Lee to investigate, and the editorial she wrote in February 2002, "Fannie Mae Enron?", sent Fannie's shares down nearly 4% in a day. In retrospect, my only regret is the question mark.

Mr. Raines reacted with immediate fury, denouncing us in a letter to the editor as "glib, disingenuous, contorted, even irresponsible," and that was the subtle part. He turned up on CNBC to say, in essence, that we had made it all up because we didn't want poor people to own houses, while Freddie issued its own denunciation.

The companies also mobilized their Wall Street allies, who benefited both from promoting their shares and from selling their mortgage-backed securities, or MBSs. The latter is a beautiful racket, thanks to the previously implicit and now explicit government guarantee that the companies are too big to fail. The Street can hawk Fan and Fred MBSs as nearly as safe as Treasurys but with a higher yield. They make a bundle in fees. At the time, Wall Street's Fannie apologists outdid themselves with their counterattack. . . .

After describing attacks on his accurate reporting, Gigot continues:

The companies eased their assaults when they concluded we weren't about to stop, and in any case they soon had bigger problems. Freddie's accounting fiasco became public in 2003, while Fannie's accounting blew up in 2004. Mr. Raines was forced to resign, and a report by regulator James Lockhart discovered that Fannie had rigged its earnings in a way that allowed it to pay huge bonuses to Mr. Raines and other executives.

Such a debacle after so much denial would have sunk any normal financial company, but once again Fan and Fred could fall back on their political protection. In the wake of Freddie's implosion, Republican Rep. Cliff Stearns of Florida held one hearing on its accounting practices and scheduled more in early 2004.

He was soon told that not only could he hold no more hearings, but House Speaker Dennis Hastert was stripping his subcommittee of jurisdiction over Fan and Fred's accounting and giving it to Mike Oxley's Financial Services Committee. "It was because of all their lobbying work," explains Mr. Stearns today, in epic understatement. Mr. Oxley proceeded to let Barney Frank (D., Mass.), then in the minority, roll all over him and protect the companies from stronger regulatory oversight. Mr. Oxley, who has since retired, was the featured guest at no fewer than 19 Fannie-sponsored fund-raisers.

Or consider the experience of Wisconsin Rep. Paul Ryan, one of the GOP's bright young lights who decided in the 1990s that Fan and Fred needed more supervision. As he held town hall meetings in his district, he soon noticed a man in a well-tailored suit hanging out amid the John Deere caps and street clothes. Mr. Ryan was being stalked by a Fannie lobbyist monitoring his every word.

On another occasion, he was invited to a meeting with the Democratic mayor of Racine, which is in his district, though he wasn't sure why. When he arrived, Mr. Ryan discovered that both he and the mayor had been invited separately — not by each other, but by a Fannie lobbyist who proceeded to tell them about the great things Fannie did for home ownership in Racine.

When none of that deterred Mr. Ryan, Fannie played rougher. It called every mortgage holder in his district, claiming (falsely) that Mr. Ryan wanted to raise the cost of their mortgage and asking if Fannie could tell the congressman to stop on their behalf. He received some 6,000 telegrams. When Mr. Ryan finally left Financial Services for a seat on Ways and Means, which doesn't oversee Fannie, he received a personal note from Mr. Raines congratulating him. "He meant good riddance," says Mr. Ryan.

Fan and Fred also couldn't prosper for as long as they have without the support of the political left, both in Congress and the intellectual class. This includes Mr. Frank and Sen. Chuck Schumer (D., N.Y.) on Capitol Hill, as well as Mr. Krugman and the Washington Post's Steven Pearlstein in the press. Their claim is that the companies are essential for homeownership.

Yet as studies have shown, about half of the implicit taxpayer subsidy for Fan and Fred is pocketed by shareholders and management. According to the Federal Reserve, the half that goes to homeowners adds up to a mere seven basis points on mortgages. In return for this, Fannie was able to pay no fewer than 21 of its executives more than $1 million in 2002, and in 2003 Mr. Raines pocketed more than $20 million. Fannie's left-wing defenders are underwriters of crony capitalism, not affordable housing.

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Tuesday, July 22, 2008

Response to Paul on Originalism and the Exclusionary Rule: In his response to my post on originalism and the exclusionary rule, Paul responds, "Originalism sometimes cannot resolve interpretative questions. But on the exclusionary rule, it seems to me there is little room for debate: Originally speaking, the Constitution does not contain an exclusionary rule." I think this response misunderstands my post a bit, so I wanted to offer some follow-up thoughts.

  First of all, Paul is absolutely correct that the common law rule permitted an officer to testify about evidence illegally obtained. You bet. This is not only correct, it was specifically acknowledged and accepted by the majority in Weeks. The Weeks Court expressly distinguished the case from the cases covered by the usual common law rule that officers could testify about evidence illegally obtained:
What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not . . . the case of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained . . . . The case in the aspect in which we are dealing with it involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence and without his authority, by a United States marshal holding no warrant for his arrest and none for the search of his premises. The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well or other property.
Weeks, 232 U.S. at 392-93.

  Put another way, Weeks was handed down as a return-of-property case, not a suppress-evidence-because-the-law-was-broken case.

  To be fair, the Weeks Court may have added some innovation in the remedy: The Court undid the conviction on the ground that if the trial court had ruled properly on the motion to return property, there would have been no conviction. In other words, the Supreme Court restored Weeks to the position he should have been in if the lower court had ruled properly in his motion to return property; it did not simply order the property restored to him (maybe sent to his jail cell?) or offer him damages for the wrong.

  Perhaps some would argue that the trial court should have returned the property before the conviction, effectively suppressing the evidence, but that after the conviction the Supreme Court should't have tried to return Weeks to that position. That seems possible to me. But even if that's right, I tend to think the key point survives: The ability to to have the return of property that was unlawfully seized did seem to authorize a pre-trial remedy in a particular type of common law case that was surprisingly suppression-like.

  Or at least it looks that way to me based on a reading of Weeks. I admit that I was surprised when I read Weeks again recently and saw its traditional grounding; I had never thought about the connection between suppression and return of property before. But reading Weeks closely made me think that I was overlooking something in following the usual story that suppression was invented out of thin air as a remedy.

  One additional point. Paul states in his post that "There's a lot of history between 1789 and 1914 — virtually all of it squarely opposed to an exclusionary remedy." There may be a lot of history, but I think it's worth noting that there is astonishingly little Fourth Amendment case law from that period. There were only 3 or 4 significant Fourth Amendment cases in that period: Ex Parte Jackson, Boyd v. United States and Hale v. Henkel were the most significant, I think, and none of them shed light on the issue. Adams v. New York from 1905 was the only really relevant precedent, and it it was then minimized 9 years later in Weeks.
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Oil Prices and the Falling Dollar:

Something I had wondered about was the impact of the falling value of the dollar on the price of oil versus real factors, such as increasing demand or reduced supply. These charts summarize the data. What it looks like is that the rise in the price of oil (and hence the rise in the price of gas) is partly due to real factors and partly due to monetary factors. This site summarizes the evidence as over the past several years the price of oil has more than doubled in dollars and risen about 50% in Euros. If I'm doing my math right, that means that if gas was $2 a gallon a few years ago and is $4 a gallon today, we would be paying $3 per gallon if the value of the dollar had not fallen so dramatically.

If so, then it is not obvious from a public policy perspective whether we have a gas price crisis, exchange rate crisis, both, or neither.

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Post-Heller blog debate over at Cato Unbound:

Bob Levy (mastermind of Heller), Dennis Henigan (Brady Campaign), and I are blog-debating Heller and its ramifications over at Cato Unbound. Erwin Chemerinsky should join us later in the week.

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Is Obama Below the Constitutional Age Limit for President?

A non-wooden, non-formalistic view from Steve Calabresi in the Chicago Tribune.

127 Comments

[Josh Chafetz, guest-blogging, July 22, 2008 at 1:11pm] Trackbacks
The Constitution on Congressional Resignation,

or, Part III of Leaving the House. In the last two posts, I've traced the history of devices used to leave the House of Commons and argued that no pre-constitutional American legislature, with the sole and explicit exception of Maryland, allowed resignation as a matter of right.

In this post, I want to look at the Constitution itself. First, let's look at the text. Article I, sec. 2, cl. 4 provides that, "When vacancies happen in the [House] Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." In contrast, Article I, sec. 3, cl. 2 provides that, "if vacancies [in the Senate] happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." (Emphasis added.) The Constitution also mentions resignation in the context of the Presidency (Article II, sec. 1, cl. 6 and Twenty-Fifth Amendment) and the Vice-Presidency (Article II, sec. 1, cl. 6). So, how pregnant is the silence as to resignations with regard to the House?

Let's look at the history. At the Philadelphia Convention, Edmund Randolph's "draft sketch" of a constitution provided for filling vacancies in the lower house of the legislature caused "by death disability or resignation." Randolph's sketch was taken up by the Committee of Detail, but that was the last time at the Convention that this wording appeared. The Committee of Detail reported a draft to the full Convention which provided for the filling of vacancies in both houses, but said nothing as to how such vacancies might arise.

The provision for filling House vacancies was unanimously agreed to by the Convention, but the provision for filling Senate vacancies occasioned some debate. Most important for my purposes is the following colloquy between James Madison and Gouverneur Morris:

Mr. Madison in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after "vacancies". & insert the words "happening by refusals to accept, resignations or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature"

Mr. Govr. Morris[:] this is absolutely necessary. otherwise, as members chosen into the Senate are disqualified from being appointed to any office by sect. 9. of this art: it will be in the power of a Legislature by appointing a man a Senator agst. his consent, to deprive the U.S. of his services.

Madison's proposal passed unanimously. Tellingly, not a single delegate quibbled with the assumption underlying Madison's and Morris's comments, that absent an explicit mention of resignations, Senators might be prevented from resigning. Equally tellingly, not a single delegate proposed similar language for the House of Representatives. One would, it seems to me, have to have a low opinion, indeed, of the intelligence or attentiveness of the Convention delegates to think that this was a mere oversight and that they intended for Representatives to have a constitutional right of resignation, as well.

But why might the Founders have wanted to treat the House and Senate differently when it comes to resignations? I can think of three reasons. First, term length. They may have thought that many of the new republic's leading lights would refuse to stand for a six-year term in a new and unfamiliar government if they could not be assured of a right to leave if things went badly. A two-year House commitment may have been thought to pose no such problems.

Second, it was possible at the Founding that someone would be elected to the Senate against his will. A cabal in the state legislature could remove someone — say, the leader of the opposition party in that state — from the state political arena for six years by appointing him to the Senate. In an era in which state politics were more important to many people than national politics, this was not inconceivable; a right to resign would, however, operate to prevent it. Again, it was much less likely that this would happen in the House, where members were directly elected by the voters.

Finally, there was a difference as to function. At the Founding, especially, the Senate was a representative of state interests. Consider the practice of instruction. When a state legislature had strong opinions about an issue pending before Congress, it would pass a resolution of the following form: "Be it resolved that our Senators in Congress are hereby instructed, and our Representatives are requested, to vote for ...." The difference in wording is a clear consequence of the differences in institutional design between the two houses of Congress. But what to do if the Senators disobeyed? The Constitution contains no Articles of Confederation-esque recall provision. The answer lay in the honor politics of the early republic. Beginning with John Quincy Adams in 1808, Senators who were unwilling to follow instructions were expected to resign, and a number of them did so. Answerability to the states thus provides a third reason for treating the House and Senate differently with regard to resignations in the Founding era.

So, to recap: Thus far, we have seen that no right of legislators to resign has ever existed at English law. We have seen that the English practice formed a sufficiently powerful background legal norm that the only American jurisdiction to reject it — Maryland, in its 1776 Constitution — did so explicitly. We have seen that the drafters of the Constitution operated with the assumption that, unless they made explicit provision for it, legislators would not have the right to resign. We have seen that they did make explicit provision for the resignation of Senators; moreover, they had Randolph's draft before them, which would have explicitly provided for the resignation of Representatives, but they chose not to use that wording. All of this combines to suggest that Members of the House of Representatives have no constitutional right to resign. As a constitutional matter, Members may request the House's permission to surrender their seats, but the House is not bound to give that permission.

We are, however, used to seeing Members of the House resign all the time. In my next post, I'll explain how we got there. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 28-36 of the article draft on SSRN.

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Al Gore’s Great Leap Backward.

Vincent Carroll at the Rocky Mountain News attacks Al Gore’s latest proposal on electric power:

He's a former vice president of the United States, Nobel Prize winner and best-selling author, so the lavish news coverage of Al Gore's latest brainstorm was inevitable. Less understandable is why an idea so irresponsible — in economic terms, in fact, just this side of deranged — attracted so little ridicule.

Gore proposed last week that the United States "commit to producing 100 percent of our electricity from renewable energy and truly clean carbon-free sources within 10 years." Not just all new electricity, mind you, which would be challenging enough. But all existing electricity, too.

This would of course require utilities to mothball hundreds of existing power plants as they launched a crash construction program of solar plants, wind farms and transmission lines costing hundreds of billions and perhaps trillions of dollars. (To put this in perspective, T. Boone Pickens, another fellow who's caught the wind-power bug, claims on his Web site, "Building wind facilities in the corridor that stretches from the Texas panhandle to North Dakota could produce 20 percent of the electricity for the United States at a cost of $1 trillion. It would take another $200 billion to build the capacity to transmit that energy to cities and towns.") . . .

He'd inflict monumental utility price hikes on consumers who'd pay for both the shutdown of old plants and construction of the new - with who knows what economic fallout. . . . Stanley Lewandowski, the general manager of the Intermountain Rural Electric Association, is one of the few utility officials willing to suggest that the prophet of global warming is strutting about like an emperor without his clothes. "Al Gore's statement of obtaining 100 percent of our power from renewables in 10 years has as much a chance of happening as the sun shining 24 hours a day," Lewandowski quipped. "It's nonsense."

Yet revealing. The idea reflects a shocking indifference to the possible fragility of an economy subjected to a force-fed "transformative" (Gore's word) experience. History rarely is kind to such ambitions, with the most catastrophic example occurring 50 years [ago] in China. That's when Mao Zedong launched his Great Leap Forward — the hare-brained effort to transform that nation into an industrial power within a few years by, among other things, dotting the landscape with backyard furnaces to make steel.

236 Comments

[Josh Chafetz, guest-blogging, July 22, 2008 at 8:23am] Trackbacks
Leaving Pre-Constitutional American Legislatures,

or, Part II of Leaving the House. In my last post, I went through the history of devices by which Members have quit their seats in the House of Commons. Not only has a right of resignation never existed at English or British law, but, during the crucial period of American constitutional development, it was not the case that a Member who sought the Chiltern Hundreds would necessarily be granted it.

In this post, I will look at pre-constitutional American practice. I should begin by acknowledging that the historical record relied upon here is thinner than the record for the House of Commons. But as far as I have been able to piece it together, with a single, explicit exception, no pre-constitutional American legislature allowed for resignations as a matter of right.

As historians of the American colonies have noted, colonial American legislatures tended to model themselves — especially in matters related to their procedures and privileges — after the House of Commons. Thus, in several colonies (e.g., Pennsylvania and North Carolina), the election laws provided punishments for elected delegates who did not appear when the legislature was in session, without making any distinction between elected delegates who had been seated and those who had not, or between those who wished to continue as members and those who did not. Other colonies (e.g., New York and South Carolina) provided for the filling of vacancies caused by an enumerated list of causes, and resignation was not listed. And in 1770, the New Jersey legislature and governor quarreled about which of them would accept John Ogden's resignation, but no one asserted that it was effective without someone's accepting it.

The practice of the states in the years between independence and the drafting of the federal Constitution seems to have been the same. A number of state constitutions (e.g., Pennsylvania, Virginia, New York, Vermont) mentioned resignation for executive and judicial officials without any mention of it for legislators.

Indeed, an incident from the Pennsylvania state legislature vividly illustrates the unavailability of resignation. On September 28, 1787 — one day before the expiration of the legislature — a member introduced a two-part resolution for the calling of a state convention to ratify the proposed federal Constitution. The first part, which expressed the Assembly's general desire to call a convention, was considered the morning it was introduced and passed by a vote of forty-three to nineteen. The assembly then adjourned for lunch. When it reconvened to consider the second part — which specified the date and procedures for electing delegates to the ratification convention — all nineteen members who voted against in the morning were absent, leaving the assembly one member short of a quorum. A quorum of the Pennsylvania Assembly consisted of "two-thirds of the whole number of members elected," (emphasis added) meaning that the denominator for quorum purposes did not change when a seat was vacant. The assembly sent its Sergeant out to round up some absent members, which (with the help of a band of concerned citizens) he did. The detained members sought to be excused — a request which the house denied — but they never sought to resign. Given that this all occurred on the final day of the legislature, they had nothing to lose by resigning, if they could. But they never even mentioned it. They knew there was no point in asking permission to resign — it would be refused — and without permission, the resignation would be of no effect.

One state, however, did allow for resignations: Maryland. Its 1776 Constitution specifically provided for the filling of legislative vacancies occasioned by, among other things, resignation.

The Continental Congress seems to have followed the majority rule. Although service in the Continental Congress was distinctly unpleasant, and it often had difficulty mustering a quorum, delegates nevertheless sought leave of the body to retire from it.

It thus seems that, with the sole exception of Maryland, pre-constitutional American legislatures followed the same rule as the House of Commons: Members had no individual right to quit their seats. Rather, if they wished to leave the house, they would need the house's permission to do so.

If you want further documentation of or elaboration on any of the points above, they are summarized from pages 19-28 of the article draft on SSRN. In the next post, I'll discuss the treatment of legislative resignations in the Constitution itself.

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International Cooperation in Homeland Security

My colleague Amos Guiora has this interesting article on ways to improve international cooperation against terrorism. Here's an abstract:

Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.

4 Comments

Monday, July 21, 2008

Steven Teles on Bloggingheads TV:

Steven Teles, author of The Rise of the Conservative Legal Movement, is on Bloggingheads TV with Jim Pinkerton, talking about his book.

Several of the other VC conspirators and I have previously blogged about Teles' excellent book in this series of posts.

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Originalism Does Not Support an Exclusionary Rule

In his recent post, Orin wonders whether the exclusionary rule is consistent with orginalism. He sketches out the received wisdom on the subject, but then notes that the Supreme Court in decisions in 1914 (Weeks) and 1920 (Silverthorne) suppressed evidence. He then weaves an argument that originalism might support the exclusionary rule holdings in these decisions.

This may be a case where, as Justice Holmes put it, "A page of history is worth a volume of logic." There's a lot of history between 1789 and 1914 — virtually all of it squarely opposed to an exclusionary remedy.

In 1904, the Supreme Court in Adams v. New York, 192 U.S. 585, 596 (1904) described the common law as follows: "Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even in an illegal manner." To the same effect was the English common law, which held "[i]t matters not how you get it; if you steal it even it would be admissible in evidence." Regina v. Leatham, [1861] 8 Cox C.C. 498, 501 (Crompton, J.). Indeed, so at odds with the common law is an exclusionary rule, that the first reported state court decision anywhere in the nation suppressing evidnece was State v. Sheridan, 96 N.W. 730 (Iowa 1903) — a decision that the Iowa Supreme Court overturned in 1923 on the ground that the strict application of the exclusionary rule would thwart the proper administration of justice. State v. Tonn, 191 N.W. 530 (Iowa 1923). Historically, the great bulk of state court decisions rejected the exclusionary rule. See generally Annotation, Admissibility of Evidence Obtained by Illegal Search and Seizure, 24 A.L.R. 1408 (1923).

I review some of the history in my article commenting on the surprising creation of exclusionary rules in state constitutions via judicial fiat. (See esp. pp. 806-07). State constitutional law has generally been more in line with orginalist premises, but on the exclusionary rule issue it appears to have veered into the realm of policy-based decisions.

Originalism sometimes cannot resolve interpretative questions. But on the exclusionary rule, it seems to me there is little room for debate: Originally speaking, the Constitution does not contain an exclusionary rule.

78 Comments

The United Nations vs. the Second Amendment:

Over at Opinio Juris, Kenneth Anderson has an interesting post about last week's gun control conference at the United Nations, and a New York Times puff piece thereon, written by C.J. Chivers.

After noting U.S. concerns about the U.N. becoming a venue attacks on American gun ownership, the Times explains:

The United Nations and advocates of gun control have said that such fears are unfounded, and that there is no effort to impose standards on nations with traditions of civilian ownership, or to restrict hunting. The programs, they said, apply largely to areas suffering from insurgencies or war.

“States remain free to have their own national legislation,” said Daniel Prins, chief of the Conventional Arms Branch of the United Nations Office for Disarmament Affairs. “This document does not try to regulate gun ownership in the whole world. This is an instrument that allows states to focus on regions in conflict and the weapons that illicitly get there.”

But Anderson was present at the beginning of the U.N.'s campaign against gun ownership:
I recall sitting in meetings of landmines advocates talking about where things should go next; I was director of the Human Rights Watch Arms Division, with a mandate to address the transfer of weapons into conflicts where they would be used in the violation of the laws of war, and small arms were the main concern. I was astonished at how quickly the entire question morphed from concern about the flood of weapons into African civil wars into how to use international law to do an end run around supposedly permissive gun ownership regimes in the US.

I dropped any personal support for the movement when it became clear, a long time ago, that it is about controlling domestic weapons equally in the US (or, today, even more so) as in Somalia or Congo.
Despite protestations to the contrary, the U.N. remains quite interested in constricting lawful gun ownership. Consider, for example, the United Nations Disarmament Programme's publication, How to Guide: Small Arms and Light Weapons Legislation. The publication touts the importance of international "harmonisation" of gun laws. According to the United Nations:
Citizens should only be allowed to own guns if they are given a government permit, and the permit should only be issued if there is a "good reason" for posssession or or "genuine need." In particular, permits to own guns for self defense should not be issued unless the applicant proves taht he is in immediate danger.

The law require "safe storage", which means that firearms should be disassembled and the ammunition ammo stored separately.

There should be frequent renewal procedures to assure the owner's continued eligibility. A good example is provided by Australia, which for most gun owners (except farmers) requires membership in a sports club, and participation in a minimum number of shooting events annually.

A firearms license should be contingent on the consent of the person's spouse or former partner.

All firearms should be registered on a centralized computer system.

The home and vehicles of a gun owner should be subject to official inspection "at will."

In The Human Right of Self-Defense, 22 BYU Journal of Public Law 43 (2008), Paul Gallant, Joanne Eisen and I detail some of the U.N.'s activities against domestic gun ownership. These include:
Providing financial and planning support to the proponents of a gun confiscation referendum in Brazil.

Adopting a Special Rapporteur's report declaring that self-defense is not a right, but is a limited excuse for violating the rights of the criminal.

Declaring that insufficient domestic gun control is a violation of current human rights treaties. Under the U.N.'s standards, even the pre-Heller laws of the District of Columbia were so lax as to be international human rights violations, for allowed the possession and use of defensive rifles or shotguns, in business premises, against non-lethal felony attacks such as rape, mayhem, arson, and armed robbery.

Rebecca Peters' organization IANSA (International Action Network Against Small Arms) is the "the organization officially designated by the UN Department of Disarmament Affairs (DDA) to coordinate civil society involvement to the UN small arms process." The official UN Report against self-defense was written by an IANSA member, University of Minnesota Law Professor Barabara Frey.

According to Peters--the head of the organization which the U.N. says represents "civil society" on gun issues, all handguns should be banned, as should all rifles capable of firing 100 meters, as should the defensive ownership of any gun.

It was certainly a relief to find out that the U.N. has no interest in restricting the gun rights of Americans.

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Kennedy Petition for Reconsideration:

Louisiana has filed a petition for reconsideration in Kennedy v. Louisiana. Details here.

22 Comments

Felons and the Second Amendment:

U.S. v. Harden, No. 06-79-KI (D. Or.) (King, J.):

Defendant Daniel Devon Harden is charged in a single-count indictment under 18 U.S.C. § 922(g)(1) with possessing a firearm after being previously convicted of a felony. Harden moves to dismiss his indictment based on District of Columbia v. Heller, in which the Court held that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Harden argues he has a Second Amendment right to possess a firearm for self-defense, even though he is a felon.

The Court also cautioned, however:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Harden's argument goes well beyond the holding in Heller. I decline to extend the case to that extent.

If Harden's argument simply went beyond the holding in Heller, it seems to me that a judge probably ought to give reasons for "declin[ing] to extend the case" -- but here, the argument goes firmly against the dictum in Heller, and thus seems to be basically disposed of by the Supreme Court's opinion.

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Globalization and the Law

Over at Edublawg, Luigi Russi, head of a group called the "Italian Legal Scholarship Unbound" in Milan, has issued a Call for Papers (and a preliminary Call for Ideas about Topics) for a symposium on Globalization and the Law -- worth a look.

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McCain Op-Ed Responding to Obama Op-Ed Rejected by NY Times.--

Drudge Reports:

An editorial written by Republican presidential hopeful McCain has been rejected by the NEW YORK TIMES — less than a week after the paper published an essay written by Obama, the DRUDGE REPORT has learned.

The paper's decision to refuse McCain's direct rebuttal to Obama's 'My Plan for Iraq' has ignited explosive charges of media bias in top Republican circles.

'It would be terrific to have an article from Senator McCain that mirrors Senator Obama's piece,' NYT Op-Ed editor David Shipley explained in an email late Friday to McCain's staff. 'I'm not going to be able to accept this piece as currently written.'

In McCain's submission to the TIMES, he writes of Obama: 'I am dismayed that he never talks about winning the war—only of ending it... if we don't win the war, our enemies will. A triumph for the terrorists would be a disaster for us. That is something I will not allow to happen as president.'

NYT's Shipley advised McCain to try again: 'I'd be pleased, though, to look at another draft.'

[Shipley served in the Clinton Administration from 1995 until 1997 as Special Assistant to the President and Senior Presidential Speechwriter.]

Drudge also has McCain's op-ed as written. McCain begins:

In January 2007, when General David Petraeus took command in Iraq, he called the situation “hard” but not “hopeless.” Today, 18 months later, violence has fallen by up to 80% to the lowest levels in four years, and Sunni and Shiite terrorists are reeling from a string of defeats. The situation now is full of hope, but considerable hard work remains to consolidate our fragile gains.

Progress has been due primarily to an increase in the number of troops and a change in their strategy. I was an early advocate of the surge at a time when it had few supporters in Washington. Senator Barack Obama was an equally vocal opponent. "I am not persuaded that 20,000 additional troops in Iraq is going to solve the sectarian violence there,” he said on January 10, 2007. “In fact, I think it will do the reverse."

Now Senator Obama has been forced to acknowledge that “our troops have performed brilliantly in lowering the level of violence.” But he still denies that any political progress has resulted.

Perhaps he is unaware that the U.S. Embassy in Baghdad has recently certified that, as one news article put it, “Iraq has met all but three of 18 original benchmarks set by Congress last year to measure security, political and economic progress.” Even more heartening has been progress that’s not measured by the benchmarks. More than 90,000 Iraqis, many of them Sunnis who once fought against the government, have signed up as Sons of Iraq to fight against the terrorists. Nor do they measure Prime Minister Nouri al Maliki’s new-found willingness to crack down on Shiite extremists in Basra and Sadr City—actions that have done much to dispel suspicions of sectarianism.

The success of the surge has not changed Senator Obama’s determination to pull out all of our combat troops. All that has changed is his rationale. . . .

The danger is that extremists supported by Al Qaeda and Iran could stage a comeback, as they have in the past when we’ve had too few troops in Iraq. Senator Obama seems to have learned nothing from recent history. I find it ironic that he is emulating the worst mistake of the Bush administration by waving the “Mission Accomplished” banner prematurely.

I am also dismayed that he never talks about winning the war—only of ending it. But if we don’t win the war, our enemies will. A triumph for the terrorists would be a disaster for us. That is something I will not allow to happen as president.

You may comment here.


Obama proposes surge in Afghanistan, but Afghans are skeptical.--

For the last week Barack Obama has been highlighting his proposed surge in Afghanistan. Yet Afghans are worried about whether this is the right strategy:

"As president, I would pursue a new strategy and begin by providing at least two additional combat brigades to support our effort in Afghanistan," Obama said in a foreign policy push this week. "We need more troops, more helicopters, better intelligence-gathering, and more non-military assistance to accomplish the mission there."

Wahid Mujda, an Afghan political analyst, warned, however, that Obama's planned increase in US troops by about 10,000 would make the situation worse.

"Increasing troops shows that the US emphasis is on war," Mujda said. "It means the US wants to solve Afghanistan's problems through military forces, which is not a sound strategy."

"More troops shows that war will continue," he added. "It means more people will be killed. It means both parties who are involved in the war would have more casualties."

People on the streets of Kabul also worried about a continuing conflict although they admitted they knew little about Obama or his strategy for their country.

If you want to comment, you may do so here.

UPDATE: In his proposed op-ed, John McCain seems to favor some sort of surge as well.


The First Successful Handgun Registrant Under New D.C. Regime:

The Examiner reports:

Amy McVey didn’t seem like the typical D.C. gun owner, at least not to the reporters who stood outside the Metropolitan Police Department on Thursday, the first day handguns could be registered in the District after the city’s 32-year ban.

“They looked at me and thought, ‘She doesn’t fit the profile of someone coming in with a gun,’ so they left me alone and I walked right past them,” said McVey, who was the first and only person to register a handgun Thursday when she entered the station with her Ruger .357 Magnum in a blue plastic bag around 1 p.m....

Among the 58 people who visited the police department to inquire about the registration or apply for a permit, McVey was the only one to complete the process....

Thanks to Dan Gifford for the pointer.

82 Comments

[Josh Chafetz, guest-blogging, July 21, 2008 at 12:19pm] Trackbacks
Leaving the House of Commons,

or, Part I of Leaving the House. Those of you who know your British government know that Members of the House of Commons have never had the right to resign their seats. Instead, they (today) apply for and are, as a matter of course, granted a royal office, the holding of which is incompatible with parliamentary service. This has the effect of vacating their House seats. How this system came about turns out to be fascinating (at least to me).

Parliament's origins are in the medieval curia regis, the King's council. Its job was to assist the Crown in administering the Kingdom. This explains why, until Elizabeth's reign, disputed parliamentary elections were handled by a Crown officer — the King was deeply interested in his parliament's composition. (Legislative jurisdiction over disputed elections is covered in more detail in chapters 7 and 8 of my book. (Still on sale at Amazon! Okay, last plug, I promise.) The kings, as it turned out, had very little interest in allowing their subjects to decline to serve, and they almost never allowed resignations.

Elizabeth faced an increasingly powerful and confrontational House of Commons, and it is during her reign that we begin to see many parliamentary privileges take their modern shapes. This included the House's successful assertion that it, and it alone, had jurisdiction over disputed parliamentary elections and qualifications. Concomitantly, the House asserted (again, successfully) that it, and it alone, had the right to determine whether or not a Member would be permitted to resign. The House, however, did not prove more permissive of resignations than the Crown had been.

Consider, for example, the 1624 election for the County of Gloucester. There were three candidates for the two open seats. The second-highest vote-getter, Sir Thomas Estcourt, had announced in advance that he did not want the seat. After his election, the House Committee of Privileges and Elections had to determine (among other things) "[w]hether Sir Thomas Estcourt was eligible, against his own consent, and contrary to his desire." The committee determined that he was eligible, because

no man, being lawfully chosen, can refuse the place; for the country and commonwealth have such an interest in every man, that when, by lawful election, he is appointed to this public service, he cannot, by any unwillingness, or refusal, of his own, make himself incapable; for that were to prefer the will, or contentment, of a private man, before the desire and satisfaction of the whole country, and a ready way to put by the sufficientest men, who are commonly those, who least endeavour to obtain the place.

However, at the beginning of the eighteenth century, a series of anti-Stuart statutes had the unintended consequence of creating new ways for Members to leave the House of Commons. The 1701 Act of Settlement, in addition to providing that the Crown would pass to the House of Hanover if (as expected) both William and Anne died without heirs, created several limitations on royal power to take effect when both William and Anne were dead. One of these limitations was the provision that anyone who occupied any Crown office or received any Crown pension would be ineligible to serve in the House of Commons. Had this provision gone into effect, it would have radically altered the theory of English government — it would have meant that even Secretaries of State (e.g., the later-developed office of Prime Minister) could not be Members of the House.

Before it could come into effect, however, that provision was replaced by a provision of the 1705 Regency Act, which excluded from the House of Commons anyone holding one of an enumerated list of Crown offices, anyone holding a Crown office created after 1705, or anyone holding a pension at the pleasure of the Crown. Moreover, any Member of the House of Commons who accepted "any Office of Profit from the Crown during such Time as he shall continue a Member" voided his election; however, so long as the office was not one of those enumerated, he could stand for reelection to the House of Commons. If reelected, he could hold both places.

Within a decade, Members figured out that they could use these provisions as a means of vacating their seats, provided they were on friendly terms with the royal officials in charge of doling out Crown offices, especially those offices which had very few responsibilities and/or very little income attached to them. (One of the royal offices used at least twice in the 1710s was Out-Ranger of Windsor Forest. Rangers were royal officials whose job it was to patrol the edges, or "purlieus," of forests and drive back into the forest any deer that might seek to explore life in the larger world. The "Out Ranger" was, as best I can tell, a Ranger who did not live in —- and therefore, did not actually patrol -— the forest for which he was responsible.)

Beginning in the 1750s, royal stewardships became the principal means of vacating House seats, and most particularly the Stewardship of the Chiltern Hundreds. (The Three Chiltern Hundreds of Stoke, Desborough, and Burnham, in Buckinghamshire, were royal properties at least as early as the reign of Edward I. The Hundreds were administered by a Steward, an office of profit under the Crown, appointed in the Exchequer. By the eighteenth century, the office had ceased to carry any administrative functions, nor was it any longer a source of measurable profit. However, it was still formally an office of profit under the Crown, and therefore resulted in the Steward's House seat being declared vacant.)

It is, in fact, still the case today that Members leave their seats in the House of Commons by accepting a Crown stewardship. Today, the Stewardship of the Chiltern Hundreds is granted alternatingly with the Stewardship of the Manor of Northstead. Leaving the House of Commons is colloquially referred to as "taking the Chiltern Hundreds," and one even occasionally sees the Chiltern Hundreds used as a metaphor for a useless office.

A couple of notes that will be relevant as I move into discussing resignations from American legislatures. First, although the Chiltern Hundreds is today granted as a matter of course, this was not always the case. Lord North (who served simultaneously as Prime Minister and Chancellor of the Exchequer) denied it on several occasions in the 1790s, and it was also denied on several occasions in the 1840s. And second, although Crown officers grant the Chiltern Hundreds, this system of leaving House seats came into being as the modern system of ministerial responsibility to Parliament was beginning to take shape. Thus, while the Chancellor of the Exchequer was (and is) legally a Crown officer, he was increasingly answerable to the House of Commons. Thus, Members were still seeking permission to quit their seats from, if not the House itself, at least someone answerable to it.

If you want further documentation of or elaboration on any of the points above, they are summarized from pages 8-19 of the article draft on SSRN. In the next few posts, I'll bring the history of legislative resignation up to the Constitutional Convention.

19 Comments

Obama vs. Bobby Rush:

In May, Obama gave a talk at Temple B'nai Torah in Boca Raton. According to this (adulatory) account, he told the congregants: "I don't want to get in to the 'some of my best friends are Jewish' trap, because it's terribly demeaning. But I will tell you this: when I first ran [unsuccessfully] for Congress against Bobby Rush, the main argument against me was that I was too close to the Jewish community!"

Earlier, Obama said, "The other irony in this whole process is that in my early political life in Chicago, one of the raps against me in the black community is that I was too close to the Jews. When I ran against Bobby Rush [for Congress], the perception was that I was Hyde Park, I'm University of Chicago, I've got all these Jewish friends. When I started organizing, the two fellow organizers in Chicago were Jews, and I was attacked for associating with them."

The latter version seems a lot more plausible [though too close, rhetorically, to the "some of my best friends are Jewish" shtick" he wisely later disavows; it would, however, help explain why he felt he needed Rev. Wright on his side] than the claim that the "main issue" in the Obama vs. Rush race was Obama's closeness to the Jewish community. Indeed, I can't find any on-line references to such a controversy in either the mainstream or "ethnic" media. But if any readers who follow Chicago politics know of any relevant facts, please post below.

And by the way, I've never associated either the University of Chicago or Hyde Park as being especially "Jewish" venues. Is there some contrary perception in Chicago?

UPDATE: A reader points me to the recent Obama profile in the New Yorker:

A South Side operator named Al Kindle, a large man with a booming voice, was a field operator for Obama’s race against Rush. He had helped elect Harold Washington, and he saw Obama’s congressional campaign from the street level. We met one evening at Calypso Café, a Caribbean restaurant that Obama has said is his favorite place to eat in Hyde Park, and Kindle described some of the worst moments in the campaign. "The accusations were that Obama was sent here and owned by the Jews," Kindle said. "That he was here to steal the black vote and steal black land and that he was represented by the—as they were called—'the white man.' And that Obama wasn't black enough and didn't know the black experience, the black community.

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Is the Exclusionary Rule Consistent With Originalism?: Does an originalist approach to constitution interpretation require the exclusionary rule? Or did the Supreme Court simply invent the doctrine without any constitutional basis? Critics of the exclusionary rule usually say that the doctrine was invented out of thin air, and that it is not constitutionally mandatory. My own view is that the exclusionary rule is much more consistent with originalism than its critics believe. Although it has evolved over time, there is a reasonable originalist basis for some version of it. In this post, I want to explain why.

  It is widely agreed that at common law, the primary way of enforcing search and seizure rules was through civil trespass suits. There were no professional police in those days, but agents of the King could get a warrant permitting them to lawfully search a home for a warrant. If an agent of the King broke into your house and searched it without a valid warrant, your remedy was to sue the agents for trespass into your home. A valid warrant provided a defense against the trespass suit: It authorized the entry. On the other hand, an agent of the King who entered without a valid warrant was not officially acting as an agent of the King He was just a private person who was a trespasser, and therefore could be subject to a trespass suit. As a result, at common law, the remedies for illegal search and seizure were enforced by civil trespass suits. The Fourth Amendment then embraced this common law heritage.

  That's the usual history. Critics of the exclusionary rule generally rely on this history to say that the U.S. Supreme Court invented the exclusionary rule out of thin air. The exclusionary remedy is not found or hinted at in the common law trespass cases, the argument runs, and it does not appear in the Constitution itself.

  I'm less sure of that. I tend to think there's actually a reasonable originalist basis for a modest form of the exclusionary rule — and that the modest form helps explain the rule's origins.

  To see why, we need to understand that the Fourth Amendment protects against two distinct things: searches, like entry into a home, and seizures, such as the taking away of a person's property. In early Fourth Amendment law — and at least as I understand it, at common law, as well, although I am less sure of that — a seizure was permitted if and only if the government had a superior property interest in the item seized. The notion was that the government's power to search and seize was premised on a superior property interest in items a person possessed. Thus, the government could get a warrant to search a home for stolen property or contraband — items that the person did not and could not legally own — but the government could not get a warrant to search for and seize mere evidence of crime. Mere evidence could not be seized because a person's property is still their property. The government only had a right to take that which a person had no right to retain. See generally Warden v. Hayden (discussing this history).

  Why does this matter? Well, I think it explains the origin of the exclusionary rule. If the government can only obtain a warrant to search for and seize property if it has a superior property interest in the item seized, then a proper remedy for a Fourth Amendment violation is the return of property unlawfully seized. And a return of property from the government to the defendant keeps the government from having it in a way it can use in court.

  Thats' just what happened in Weeks v. United States, 232 U.S. 383 (1914), the case that is generally understood as having introduced the exclusionary rule. The police in Weeks broke into Weeks's home without a warrant and took his papers away. Although the timing of events isn't exactly clear, Weeks was charged with a crime based on the papers and he filed suit seeking return of the papers on the ground that the government had no right to possess them. That is, Weeks wasn't seeking "suppression" of the evidence: He was seeking a return of his stuff that the government had unlawfully stolen from him. The trick was that by getting the property back, Weeks could keep it away from the government: The government needed to possess the property to move for its admission in court.

  It seems to me that for an originalist judge, letting Weeks have his property back doesn't require any judicial rulemaking or living constitutionalism. After all, the government has no right to the property: It was literally stolen from Weeks. What are you supposed to do when Weeks wants his property back? Say "no"? Or maybe say, "Sorry bud — your property was stolen from you and you deserve it back, but first we want to let the thief hold on to it for a few months to prosecute you"? In that setting, it seems pretty reasonable to give the property back to Weeks. And interestingly, the result in Weeks was 9-0.
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Find Letters to the Editor E-Mail Addresses for Nearby Newspapers:

A cool online search engine which gives you letters to the editor e-mail addresses for newspapers near a given zip code. Many thanks to Armed and Safe and Dan Gifford for the pointer, and to Freedom States Alliance (apparently a pro-gun-restriction group) for putting this together.

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[Josh Chafetz, guest-blogging, July 21, 2008 at 7:44am] Trackbacks
Thanks to Eugene and His Co-Conspirators

for inviting me to blog here about my new paper, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, which will be published this November in the Duke Law Journal. (If you missed Eugene's welcome post and are wondering who the heck I am, my faculty webpage is here.) I thought what I would do this week is say a little bit about each section of the paper, and also try and respond to some comments from you all. The paper has a fair amount of historical detail, of which I'll only be able to give small snippets here, so if the issues seem interesting to you, I urge you to read it.

The three-sentence version of this article as a whole is that it considers the question of whether Members of the House of Representatives have a constitutional right to resign their seats, or whether the House itself has the constitutional power to require that resignations must be accepted by the House before they become effective. The article makes an historical argument that the House does have the constitutional power to require that resignations be accepted, but this power has never been exercised. Finally, it suggests some reasons why we might want the House to change its rules so as to require it to accept resignations before they become effective.

I'll lay out the historical arguments over the course of my next few posts. But I'll just close this introductory post with a brief bit of shameless self-promotion: if you're interested in issues, like this one, of the interaction between the Constitution and congressional procedure, I note that my book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, covers a number of these issues in depth. (And it's currently 20% off at Amazon! Buy copies for your friends and neighbors!)

7 Comments

Sunday, July 20, 2008

Dutch Court Denies Chipmaker's Request to Enjoin Academics' Publication of Security Flaws:

From The Industry Standard, apropos the story noted here July 11:

A Dutch court has denied a request from chipmaker NXP to prevent the publication of a scientific study of the security of the firm's Mifare Classic RFID technology....

The court ruled that freedom of speech outweighs NXP's commercial interests.... The judge ruled that limitations to the freedom of speech are allowed only if there is urgent and obvious threat to society. "This requires a balancing of interests," the court stated in a press release. "It should be considered that the publication of scientific studies carries a lot of weight in a democratic society, as does informing society about serious issues in the chip, because it allows for mitigating of the risks."

The chipmaker has put out a paper supporting its position; an excerpt:
NXP welcomes any feedback about any privacy and security concerns related to its chips. NXP does have no concerns about so called “ethical hackers”, who investigate our products and share with us their findings. This allows for assessment and correction of any security situation of our chips and the products and systems using our chips....

NXP has, however, concerns about unverified public communications regarding security and privacy of automated systems and its constituent components, and the potential harm to society as a result. This blurs public debate, harms public interests and often builds opinions on false grounds.

Anyone intending to publish any such information should in our view first verify:

1. whether the facts are accurate;
2. how the facts impact on the security or privacy of the system (in which our products are just an element) as a whole (and not just one element thereof);
3. the potentially harmful consequences to society of such information becoming publicly known.
4. the legality of their acts.

Legal concerns

Persons involved in hacking, breaking (or attempting to break) into automated systems or falsifying components of such systems should realize that:

* unauthorized possession of secret algorithms or ways to obtain secret keys can be a criminal offense;
* publishing an algorithm and secret keys used in an automated system is a criminal offense;
* publishing a secret algorithm or secret keys (or ways to obtain those) qualifies as a tort, resulting in liability for such person (and often its employer) for all resulting costs and damages.

The Standard article reports, by the way, that "The researchers with the University of Nijmegen had countered that they have allowed ample time for NXP to repair the issues. Karsten Nohl, a researcher with the University of Virginia previously has pointed out that NXP was first made aware of fundamental flaws in the chip's design in December 2007.... Nohl furthermore charges that NXP has wrongly trivialized the issues and recommends that the firm shifts focus to mitigating the problems instead of fighting security researchers."

Thanks to Martin Holterman for the pointer.

Related Posts (on one page):

  1. Dutch Court Denies Chipmaker's Request to Enjoin Academics' Publication of Security Flaws:
  2. "Chipmaker Sues To Silence Security Researchers,"
13 Comments

The National Consensus on Capital Punishment for Child Rape:

Andrew Hyman sends along the results from this interesting national Qunnipiac poll on various legal issues. Of particular interest, the poll asked the following question:

"The Supreme Court has recently ruled that a mandatory death penalty for child rape is unconstitutional. Do you favor or oppose the death penalty for persons convicted of child rape?"
Here are the results:
Favor: 55 percent
Oppose: 38 percent
DK/No Opinion: 7 percent
This would seem to further undermine Justice Kennedy's claim in Kennedy v. Louisiana that there is a national consensus opposing the death penalty for child rape.

The poll also has interesting results on other issues, ranigng from gun control and gay marriage to abortion and Chief Justice John Roberts.

44 Comments