The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Saturday, February 22, 2003


SADDAM AND DETERRENCE: From an New York Times op-ed by Kenneth Pollack, a former analyst of the Iraqi military for the CIA:
Most ominous today, we have heard from many intelligence sources -- including some of the highest-level defectors now in America and abroad -- that Saddam Hussein believes that once he has acquired nuclear weapons it is the United States that will be deterred. He apparently believes that America will be so terrified of getting into a nuclear confrontation that it would not dare to stop him should he decide to invade, threaten or blackmail his neighbors. . . .

Finally, we cannot forget that all evidence has shown Saddam Hussein to be an incorrigible optimist who willfully ignores signs of danger. Consider that on at least five occasions over the last three decades, he has embarked on foreign policy adventures that nearly destroyed him: his attack on Iraq's Kurds in 1974 (which might have ended in an Iranian assault on Baghdad if the shah of Iran had not unexpectedly decided to double-cross the Kurds instead); his invasion of Iran in 1980; his invasion of Kuwait in 1990; his assassination attempt against former President Bush in 1993; and his threatened attack on Kuwait in 1994. In each case, he took a course of action that we know even his closest advisers considered extremely dangerous.

This is the problem with Saddam Hussein. The assertion that he is not intentionally suicidal may be true, but it is irrelevant. In the end, he has frequently proven inadvertently suicidal.

And he seems to be doing it again. With more than 150,000 American soldiers taking positions on his borders he continues to run the international inspectors in circles, foolishly confident that his minor concessions will stave off an invasion. Is there any other person on earth who wouldn't turn his country inside out to prove that he did not have more weapons of mass destruction? Once again, he seems to be betting his life that the game is not as dangerous as everyone else thinks it is.

Given Saddam Hussein's current behavior, his track record, his aspirations and his terrifying beliefs about the utility of nuclear weapons, it would be reckless for us to assume that he can be deterred. Yes, we must weigh the costs of a war with Iraq today, but on the other side of the balance we must place the cost of a war with a nuclear-armed Iraq tomorrow.
The rest of the piece is much worth reading, too.


A 72-year old pensioner has been charged with the murder of Michael Lekara Wayid, the Nigerian Consul in the Czech Republic, in connection with a shooting that took place at the Nigerian embassy on Wednesday, Prague police spokesman Ladislav Bernasek told CTK today.

The man is currently in a cell waiting for a decision on custody. He told police after the shooting that he shot Wayida because Nigeria owned him money. It has been apparently confirmed that the shooting is connected to the so-called Nigerian letters where defrauders from abroad request bank accounts, deposits and advanced payments for the transfer to transfer a large sum of money out of Nigeria. . . .
Thanks to Phil Proctor for the pointer.


200 YEARS OF MARBURY V. MADISON: Lawprof Stephen Siegel notes that this Sunday, Feb. 23, is the 200th anniversary of the Supreme Court's Marbury v. Madison decision, which established (more or less) the Court's power to review the constitutionality of legislation.


A CONSERVATIVE LIBERALISM? The website of the Georgetown University Law Center student chapter of the American Constitution Society (ACS) promises that the chapter will soon be publishing a Judicial Activism Bulletin. (If you're unfamiliar with the ACS, see news reports here and here.) According to the Georgetown chapter’s site:
  Recent years have seen a rise in conservative judicial activism: the inappropriate implementation by judges of a conservative political agenda under the guise of judicial decisionmaking. While the conservative legal movement has staked out the high ground, claiming to hold a monopoly on principled legal reasoning, the decisions of conservative federal courts tell a different story: the replacement of principled legal rules with a conservative political agenda. Judicial Activism Bulletin is a project dedicated to exposing the lawless judicial substitution of conservative political outcomes for principled jurisprudence.

  Judicial Activism Bulletin will be a publication containing sharp, well-written student-authored critiques of recent circuit court opinions that showcase this new brand of conservative judicial activism. Judicial Activism Bulletin selects cases in which courts have . . . overreached, failed to follow clear precedents, failed to adhere to the strict limitations on the judicial role, or are not supported by legal principle. Judicial Activism Bulletin will be published both on the ACS national website and, ultimately, in free-standing hard copy format which will be distributed nationally.
     I think this is terrific. As a law professor, I'm delighted that law students want to spend their free time reading circuit court opinions to see whether they follow precedents and are consistent with the separation of powers. And if they can expose conservative jurists deviating from their expressed principles, then bravo for them.

     Still, the fact that the Judicial Activism Bulletin will be coming from the ACS leaves me a bit confused. If the authors of the Bulletin believe judges should follow precedent, adhere to the strict limitations on the judicial role, and shouldn’t overreach, then that seems quite noteworthy. It means that at least some in the ACS believe in the founding credo of the Federalist Society: “the state exists to preserve freedom, . . . the separation of governmental powers is central to our Constitution, and . . . it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." I look forward to the first issue.


NOT-SO-SPLENDID ISOLATION: The tiny island nation of Nauru loses contact with the world, from the BBC. One excerpt: "[Nauru's] isolation is so complete that no one is even sure who the country's president is any more. "


CONTRA KAGAN: The intellectual backlash against Robert Kagan has come on strong: Timothy Garton Ash in the Prospect (not TAP), Paul Berman in TNR. UPDATE: Lawrence Solum (whose excellent legal theory blog I only discovered a few days ago, via Chris Bertram) has more, on "the One Minute Philosphers versions of Hobbes and Kant that are figuring as rhetorical tropes" in the Kagan debate. I should note that this is often-- not always by any means, but often-- true in international relations writing. Elsewhere, Innocents Abroad has a thoughtful critique of Berman's article.

Friday, February 21, 2003


FAMILY TIES: Instapundit reports that Eve Tushnet is the daughter of Mark Tushnet, legal theorist and scholar of comparative constitutionalism (one of my academic interests). Despite the distinctive last name, this possibility never crossed my mind; and there have certainly been days when I was reading Eve's blog at the same time that I had open on my desk a copy of the comparative constitutionalism casebook Mark coedited with Vicki Jackson. Father and daughter are very intellectually different from one another...


STATE BUDGETS: Jack Shafer brings the state spending spree problem to the attention of those NYT writers who keep writing about the poor put-upon state budgets. Libertarians have been pointing this out for a while; Shafer may help bring it to the mainstream.


"FAMFIC:" This Chris Suellentrop piece in Slate discusses something that I've been thinking about lately: authors' descendants continuing to publish, in some sense, the family franchise. (I've been thinking about it because I'm, somewhat joylessly, working my way through
Dune: House Corrino,
by Brian Herbert and Kevin Anderson, the final book in Herbert and Anderson's Dune: House trilogy, which follows on the classic SF series of novels by the late Frank Herbert. The House novels have already been followed up by another prequel, and there are more novels to come; eventually these are supposed to include the missing conclusion to the series, picking up at the end of Chapterhouse: Dune.) But some distinctions get lost in Suellentrop's commentary.
Christopher Tolkien finished his father's last book, The Silmarillion, then published 12 more books under his father's byline.
This is quite misleading. In the context of a discussion of bylines living long after the author's death, e.g. V.C. Andrews, this makes it sound like Christopher Tolkien wrote twelve books and slapped his father's name onto them. What hedid was quite different: he painstakingly edited every scrap of notes, every draft, every bit of planning and preparation his father had done in the writing of the five Middle-Earth books. The result is, as far as I know, unique; it's part collected papers, part intellectual archaeology, part unfinished and unpublished tales. Christopher Tolkien has written extensive annotation and commentary on all of this, and it's perfectly clear which parts of the work are his and which are his father's. There are lots of gems in the resulting History of Middle Earth series; there's also lots of the kind of material that I look for in my day job when I'm trying to figure out how Benjamin Constant changed his mind between the 1810 draft of his Principles of Politics and subsequent published extracts. But the younger Tolkien hasn't simply been "publishing books under his father's byline;" he's been editing and annotating his father's papers, and publishing them in the way that an editor of someone else's papers always does. This has always seemed to me a c rious way for Christopher Tolkien to spend many years of his life, but as a hardcore Middle Earth junkie I've been grateful that he did.


TURKS AND KURDS CON'T: The New York Times confirms that disputes over the Turkish-Kurdish problem are part of what's delaying a U.S.-Turkish agreement. This is good news as far as I'm concerned; it means that there are some limits to the amount of selling out of the Kurds that the U.S. is willing to engage in. On the other hand, the postwar plan described by the Washington Post sounds dangerously dismissive of federalism; and the NYT piece confirms that the U.S. isn't objecting to a large Turkish occupation of northern Iraq. (See also Andrew Sullivan, Matthew Yglesias. )


HART'S REPLY: For what it's worth, since I've been a skeptic about Gary Hart's speech and explanations of it, I'll link to his letter to the New York Sun explaining it. (Link via Kaus, who doesn't seem particularly convinced either.) As far as Hart's continued attempt to say that there's nothing in his statement with which anyone disagrees, I'll point back to my disagreement..

Thursday, February 20, 2003


MORE ON EBAY AND PRIVACY: Ernest Miller of LawMeme has posted a thoughtful response to my post about eBay's privacy policy (you can read my original post here, and the LawMeme story that led to my comment here). Ernest writes:
This would be all well and good except that eBay's policies are not limited to fighting fraud. It is one thing for eBay to patrol its website for signs of illicit activity and take action against it, including notifying law enforcement authorities. I also have no problem with eBay responding to properly issued subpoenas. However, there is a problem with eBay's privacy policys when eBay provides information on its customers to any law enforcement agency that asks, regardless of the reason for the request. When Kenneth Starr subpoened Monica Lewinsky's book purchasing information from her book store, that request for information had nothing to do with fighting fraud. Yet, had Lewinsky purchased her books via eBay (a not uncommmon occurrence, eBay had 162,526 items matching "book" this morning), eBay would not have required Starr to get a subpoena.
     [N.B. I've re-written the remainder of this post substantially from an earlier draft: my apologies for the confusion.] Some good points. I agree that we don't want eBay to start disclosing information willy-nilly; I suppose the merits of eBay's policy depends in large part on how it implements it in practice-- as well as whether law enforcement officers abuse eBay's policies. For what it's worth, though, I'm not sure how much privacy protection a subpoena rule affords. A prosecutor can have a grand jury su ena issued "merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950). Documents produced under a grand jury subpoena are protected from disclosure by Fed. R. Crim. Pro. 6(e), whereas documents voluntarily disclosed are not, but law enforcement can access the information either way. This might explain eBay's policy, at least in part.


OF ACADEMIC INTEREST: Kieran Healey hits the nail on the head in this exchange with Matthew Yglesias about different styles of academic reading. The philosophy-political theory difference Kieran points to comes up relatively often, because political philosophers from philosophy departments and political theorists from poli sci departments interact a lot, take the same classes, etc.

Via Chris Bertram:, which so far is similar to Arts and Letters Daily, but with more specialized links.


TURKS AND KURDS: There should be a silver lining to a Turkish refusal to allow the U.S. to mount a second front from Turkish soil, if refusal is where we end up. The administration has been more-or-less quietly considering a variety of ways to sell out the self-governing Kurds as the price of Turkish support: allowing Turkey to move in and occupy part of northern Iraq (ostensibly to secure the border against a flood of refugees), curtailing commitments to federalism or the protection of Kurdish autonomy after the war, even considering abandoning democratic government altogether (see also Matthew Yglesias) in order to keep the "stabilizing" Sunni Arab minority in power. I understand that Turkey is an ally and that, in wartime, one sometimes does distasteful things that are in the interest of one's allies. But if Turkey doesn't authorize the use of bases there after all, then the U.S. has no further reason to allow the Turkish paranoia about any Kurds anywhere being self-governing to affect war planning.

The worst of both worlds would be deferring to Turkish sensibilities on Kurdistan and still not getting access to Turkish bases. Some stability-oriented realpolitikers might steer us that way anyways. Those really concerned with liberating Iraq should resist that tendency.

UPDATE: See this related essay by Peter Beinart.


INTERNET VOTE-SWAPPING: A report out of Finland (thanks to Dennis Magnuson for the pointer) says that the Finnish Ministry of Justice is thinking of cracking down on a rather interesting vote-swapping scheme. According to the story:
"The ingenious "vote-swapping" Internet service
was set up by Jani Halme, a new-media professional, who discovered that he really had no candidate in his present home city of Helsinki whom he wished to vote for, but that he would prefer to give his support to
someone in Parikkala, where he used to live. Says Halme, "The idea is simple: a person registers with our Internet service, and announces in which constituency a vote is available for exchange, and the constituency in which he or she wishes to exchange a vote. If a suitable match can be found, the two receive details of how to get in touch with
one another". The scheme is non-commercial, and there is no advertising on the site."

Pretty interesting. I don't know the first thing about Finnish electoral law, needless to say; so whether Finland can successfully close this down is beyond me. But I wonder whether similar services will emerge on this side of the pond -- and what the official reaction would be if they did. There's a decent-sized theoretical literature arguing that people should have the freedom to vote where they think their vote will do the most good -- that, say,a resident of Bethesda Maryland should be allowed to cast a vote in Washington DC if he/she thinks that his/her vote will do the most "good" there. Its a way of getting people to help solve the "spillover" problem that results from the fact that the election in Washington DC might actually have tremendous effect on people outside of DC (and, of course, vice versa).

     I don't know if I buy all of those arguments -- but it does seem to me that the reasons given by the Finnish Justice Ministry for opposing this service -- that "the Constitution stipulates electoral secrecy," that "persons are allowed to vote in elections only in the constituency where they are registered as living," and that "voting in another's name is proscribed by law" -- are entirely without force. Surely electoral secrecy can be waived by the voter him/herself (just as I can, if I wish, tell the world who I voted for in the last presidential election); under the swapping scheme, people only actually vote in the place where they are registered, and there is no real "voting in someone else's name" involved here (since all voters continue to vote in their own name).


THE COSTS OF ANTIWAR SPEECH: A Washington Post article suggests that worldwide antiwar protests are apparently "embolden[ing]" Iraq to resist inspections, and thus, as InstaPundit points out, may actually be making war more likely. Even if the war will happen in any event, the protests may harm the war effort, by making Saddam think that if he resists just a bit more, he might still prevail. As I mentioned in my criticism of the New York Sun's editorial calling for suppression of antiwar speech, "[I]t is actually true that this opposition sometimes can help our enemies, by emboldening them, or by weakening the nation's resolve."

     All this, I think, should remind us of an important point -- speech isn't protected just because it's harmless; the very things that make speech valuable may also make it harmful at times. Rather, speech is generally protected (admittedly, with some narrow exceptions) even when it's harmful, because allowing the government to suppress speech that it considers evil, wrong, or dangerous is even more harmful.


EMINENTLY NEWSWORTHY: The New York Times finally sees fit to report on the controversy regarding eminent domain acquisition of Times Square property for the benefit of... the New York Times. For more on this case-- mostly written with a more skeptical eye toward the land grab than is evidenced by the NYT piece-- see: Jonathan Rauch's article in Reason; this Village Voice article by Paul Moses; this Forbes article by my old grad school colleage Ira Carnahan; and this backgrounder from the indispensable Institute for Justice on the abuse of eminent domain and the conflation of public use with private benefit.


SAMI AL-ARIAN: Sami Al-Arian, a University of South Florida professor, has been arrested on terrorism charges. There's more on the academic freedom issues raised by USF's earlier suspension of him in this post from several months ago. From a purely legal perspective, the arrest doesn't make USF's suspension correct -- as best I can tell, the suspension seemed to be based chiefly on Al-Arian's speech, and not actually on any real evidence of his past terrorist connections (though there's some factual controversy about that). At the same time, I can't deny that if Al-Arian is indeed found to have committed crimes, USF's actions won't trouble people quite as much.


DUCK AND COVER: Lots of people have been comparing the duct-tape-and-sheeting proposals to the ridiculous Cold War duck-and-cover drills. Now I know nothing about the merits of duct tape and sheeting, and despite that have no opinion about it. But I did do a good bit of research, many years ago, on nuclear attack questions, and to the best of my knowledge, "duck and cover" actually was a sensible recommendation.

     Naturally, ducking and covering wouldn't help you if a bomb exploded over your head, or even nearby. Nothing could help you then, other than (maybe) a very deep blast shelter. But there was a zone -- as I understand it, a pretty big one -- some miles away from detonation (the number of miles of course depended on the kilotonnage of the weapon, the height of detonation, and the type of the weapon) where ducking and covering would help.

     How can that be? Nuclear weapons can kill in three direct ways, plus a couple of indirect ones. The direct ones are radiation (a relatively narrow zone), and heat pulse and blast (generally a much broader zone, except as to neutron bombs). When you're far enough from the blast, the radiation is no longer deadly, the heat pulse no longer burns up everything in sight, and the blast no longer demolishes everything. But the blast can still shatter windows and, I assume, cause ceiling fixtures to fall; and (here my memory is hazier) the heat pulse can still burn exposed tissue, though not tissue that was shielded from a line-of-sight link to the detonation. (The chief indirect ones are fallout and heat-pulse-induced firestorms, plus of course infrastructure disruption, but I set those aside here for now; among other things, fallout and firestorms don't always happen -- much depends on where the bomb is detonated and how much burns up -- and infrastructure disruption may well be survivable.)

     Ducking and covering when you hear the air raid sirens could protect you from heat pulse and blast, if you were in that middle zone between the area of sure death and the area of no injury. Unless I'm mistaken, ducking and covering when you saw the bomb flash could also protect you from the blast, though not the heat pulse, because the blast naturally travels more slowly than light.

     More broadly, ducking and covering was one of those strategies that worked on the margin -- that surely couldn't save everyone, but could save some, and was probably the best that most civilians could do for themselves. It sounds laughable, because when most people think of nuclear bombs they think of the area in which they are most destructive, and of the flashiest or scariest ways in which they kill. Someone being killed in an otherwise mostly intact building by flying glass or by a falling ceiling beam doesn't really enter people's minds. But in reality, there seemed to be good reason to think that (especially if we didn't have an all-out thousands-of-bombs nuclear war) ducking and covering could have saved some lives, just like standing in doorways could (I am told) save some lives during an earthquake.

     This actually is relevant to the duct-tape-and-plasting-sheeting question -- that this tactic might not save you in some situations doesn't mean that it's useless in all situations; there may be some cases, on the margins, where it would make a difference. Then again, it might well be useless in all situations -- as I said, I know nothing about defense against chemical and biological attacks. But I do think that the "It won't save us in The High-Profile Most Fearsome Scenario, so it's useless" reaction, which is often the first one that people get, may not be the right one, as the duck and cover example shows.

P.S. As I was finishing this, I thought that it might make a nice newspaper or magazine piece, perhaps for some outlet like Slate. But then I realized that, while I'm pretty confident that I'm correct, I'm no expert on the subject, my research was 15 years ago, my memory may be mistaken, I don't have the time or inclination to go over some of this research again, and there are lots of other people who know much more about this than I do, and who'd point out all my errors if I did make errors. That's one of the advantages of blogging -- if one screws up, one puts up a correction and doesn't feel that embarrassed (unless the screw-ups happen too often); not so easy if the error is in an Official Article In A Serious Publication. So let the blog reader beware, though I'm sure most of you already do realize this.

UPDATE: Reader Stephen Loeb also points out that "duck and cover" was also made laughable by some of the promotion materials that seemed to vastly oversell its utility -- I haven't seen the materials, but from what I've heard that point makes sense, and is not inconsistent with my analysis.


JUDGES AND LAW CLERKS: I liked this quote from Judge Posner's essay on Justice Douglas:
The quotations are effective in demonstrating that Douglas was an able judicial polemicist and had the good sense to write his own opinions rather than rely on law clerks, even if they are not really the lowest form of human life.
For background, (1) Douglas -- a personally very difficult man -- had apparently referred to his clerks as "the lowest form of human life," and (2) Posner is one of the few other federal judges who does do the first drafts of nearly all his own opinions. He's also much liked, to my knowledge, by his clerks. See Michelle's post yesterday with another quote from Posner's essay.


POLITICAL LITMUS TEST: Jesse Walker has an interesting (though unfortunate) story, and a multiple-choice test (the fun kind, not the nasty, anxiety-inspiring kind), at Hit & Run. Check it out.


MICROSOFT PRIVACY COMMITTEE: I've just joined -- together with a bunch of leading privacy law people -- the Privacy Committee of the Microsoft Trustworthy Computing Academic Advisory Board, and our first meeting is today and tomorrow. I'm off to Seattle this afternoon, and won't be blogging much today or tomorrow. My cobloggers, however, will still be posting.


AFFIRMATIVE ACTION & BIG BUSINESS: There has been much ado in the press about amicus briefs filed by major corporations in support of the University of Michigan's use of racial preferences in admissions. As noted by John Rosenberg, these corporations (and some universities) argue that racial preferences are necessary to ensure a sufficient pool of qualified minority applicants. This need is apparently most acute in science and engineering. It may be that many Fortune 500 companies believe that diversity in the workforce improves their performance. If this is the case, I would suspect that such arguments are stronger in areas such as marketing or human resources than in those areas, such as engineering and scientific research, in which the need for greater diversity is apparently most acute.

Another explanation for corporate support of Michigan could be their concerns about compliance with civil rights laws and avoidance of disparate impact suits. No corporation wants to be the next company targeted by Jesse Jackson for racially insensitive conduct or hiring practices. If corporations are under pressure to hire a more diverse workforce, they may see racial preferences in university admissions as a relatively low cost means of increasing the number of qualified minority candidates in their applicant pool, and thereby avoiding such legal and reputational risks. The question is whether corporations would be so bullish on racial preferences in university admissions were they not under such pressure to diversify their own workforces.


GOING ON 1 MILLION UNIQUE VISITS (WHATEVER THAT MEANS): We're at over 900,000 right now in the last 258 days, according to eXTReMe Tracking. Naturally, this figure is extremely imprecise, since on some occasions we know Extreme Tracking has overcounted, and on other occasions it's been down and hasn't counted visitors at all. We also know that, well, we don't really know what exactly is being counted as "unique visits." Finally, the blog was around for a couple of months before we switched to eXTReMe Tracking, so we've probably already exceeded 1 million since we started last April. So ultimately, we can't really say that much about our visitors at all. Except that we've seem to have had a lot of you, and we're very grateful for that!

Wednesday, February 19, 2003


HAS EBAY TURNED INTO BIG BROTHER?: LawMeme had a piece recently about eBay's willingness to work with law enforcement to combat fraud (you can access LawMeme's original piece here). As the LawMeme piece reports, eBay has a pretty police-friendly policy: they want to make sure their customers aren't defrauded, so they are aggressive about fighting fraud and working with law enforcement. Haaretz has now picked up the story with a piece called Big Brother is watching you - and documenting.

     eBay has had this attitude for several years. In fact, the eBay lawyer whose talk led to the LawMeme story is himself a former Assistant U.S. Attorney, Joseph E. Sullivan. Joe used to prosecute computer crimes in the Northern District of California, and even prosecuted cases of eBay fraud (read a press release from one of his cases here).

     What should we make of this? LawMeme and Haaretz both report the story as a disturbing example of Big Brother. Haaretz even suggests that eBay's policy might violate the Fourth Amendment, which is plainly wrong in light of cases like United States v. Miller, 425 U.S. 435 (1976). But how about eBay's approach as a matter of policy? eBay's decision to work closely with law enforcement is pretty clearly legal (eBay is not regulated by the Electronic Communications Privacy Act, for example), but is it a bad idea?

      LawMeme seems to think so, but I'm not so sure. eBay runs an auction ite, and they need to protect their customers. They only collect the information from their users that eBay needs to conduct their business, and don't pretend that they will keep the information secret if they believe a customer is involved in criminal activity. In effect, eBay is like the store that puts up video cameras or hires security guards to catch shoplifters. If anything, eBay's rationale for surveillance is more persuasive: they are working to keep their customers from being defrauded (not just eBay), and they aren't doing anything nearly as invasive as video surveillance. eBay is also notably different from an ISP such as AOL, which is governed by the Electronic Communications Privacy Act. People use ISPs to communicate privately with others. In contrast, people use eBay to buy and sell goods without being defrauded.

      Would it be nice, all other things being equal, if eBay guaranteed the privacy of their customers? Sure, if there were no fraud. But eBay has its policy because fraud exists. From a business perspective, eBay believes that their customers are more worried about being defrauded than about disclosure of their eBay records to law enforcement. I'm not sure that's irrational, either for eBay or its customers.


INTERVIEWS WITH SCIENTISTS: From Hans Blix's statement on Feb. 14:
The matter of private interviews was discussed at length during our meeting in Baghdad. The Iraqi side confirmed the commitment, which it made to us on Jan. 20, to encourage persons asked to accept such interviews, whether in or out of Iraq. So far, we have only had interviews in Baghdad. A number of persons have declined to be interviewed, unless they were allowed to have an official present or were allowed to tape the interview. Three persons that had previously refused interviews on UNMOVIC's terms, subsequently accepted such interviews just prior to our talks in Baghdad on Feb. 8 and 9. These interviews proved informative. No further interviews have since been accepted on our terms. I hope this will change. We feel that interviews conducted without any third party present and without tape recording would provide the greatest credibility.
From today's L.A. Times (thanks to Andrew Sullivan for the pointer):
U.N. officials are becoming increasingly frustrated that Iraq is paying only lip service to the demand for private interviews. In fact, they say, they have not had one successful interview with any of the scientists that they had asked to speak to about Iraq's alleged biological and chemical weapons programs.

"There were roughly 30 attempts made to interview Iraqis in private, and three such interviews took place," Hiro Ueki, spokesman for the inspection teams in Baghdad, said Tuesday.

Each of those three individuals had been suggested by the Iraqis, he said. On the other hand, none of the scientists that the U.N. Monitoring, Verification and Inspection Commission, or UNMOVIC, has proposed for questioning have agreed to private interviews. Instead, most insisted on making a tape recording of the interview or on having a relative or friend present.

"We hope that Iraqi interviewees will eventually accept being interviewed in private under UNMOVIC's terms," Ueki said.

Three biological and chemical scientists turned up voluntarily for interviews Feb. 7-8, just when chief U.N. weapons inspector Hans Blix and International Atomic Energy Agency chief Mohamed ElBaradei were flying into the country. At the time, Iraqi officials were under intense pressure to show more cooperation with the United Nations or risk the start of a U.S.-led attack to change the Iraqi government and forcibly disarm the country of any banned weapons found.

Responding to the pressure, during early February, Iraq in quick succession offered up the first inspectors for private interviews, agreed to U-2 spy plane flights (the second of which reportedly took place Tuesday), passed a long-sought presidential decree banning weapons of mass destruction and made other promises to be more cooperative in producing lists of potential witnesses and procuring documents to show how it had disposed of past weapons.

The steps led to a fairly mild report by Blix and ElBaradei last week at the Security Council, bolstering countries, such as France and Germany, that have argued that Iraq should be given more time to let inspections work and setting back U.S. efforts to build a consensus for military intervention.

Privately, weapons inspectors say Iraq may have become overconfident that it is off the hook. One official said: "There is a sense that they can get away with anything. Only if the pressure is maintained at a high level do the inspections achieve anything." . . .
No, really? Iraq might feel that they can get away with anything? Hans Blix's optimism does not seem to have been borne out? I am shocked, shocked!


INVASION CLAUSE AND COMPULSORY VACCINATION: I've gotten several messages in response to my query about how compulsory vaccination could be within the federal government's power; and I'm sure that courts would indeed find some way of upholding this policy. I've thought up a somewhat different justification, though -- I haven't researched it closely, but I might try to write something very short about it, so I'd love to have the input of those who are more familiar with the caselaw (I've found almost none) or the history (likewise) of this clause than I am. Here's the brief sketch:

     1. Art. IV, sec. 4 says that "The United States . . . shall protect each of [the States] against Invasion." The Necessary and Proper Clause give Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States." The duty created by article IV, it seems to me, carries within it the power to do so; and the Necessary and Proper Clause thus gives Congress the power to do what is necessary and proper to protect States against invasion.

     2. The paradigmatic invasion is by a large group of men, because that's what does the most damage, and what did the most damage in the late 1700s. But sending a small force, overt or clandestine, in order to wreak damage (say, by using explosives or artillery) is an invasion as well; likewise, I think, for a very small force that is armed with very dangerous weapons, whether nuclear or biological; and I would say the same would be true of entirely mechanical attacks that are launched from outside the territory.

     It may be odd to think of one or two saboteurs -- or an unmanned drone -- as an "invasion force," but that reaction flows from the continued association of an invasion force's danger with the force's size. As technology makes it possible for fewer people to do more damage, that association breaks down. Biological warfare was not unknown as of the time of the Framing; the British colonial forces used smallpox-contaminated linens to try to infect Indians in 1763, the British apparently used smallpox in the Revolutionary War, and there's some evidence that the Iroquois may have used the fouling of water supplies with decaying carcasses as a tool of warfare in 1710. (SIPRI, Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945, at 8-10, 17-30.) But given then-existing technology, most of these attacks were undertaken by military forces that were already nearby -- biological attacks without invasion by a significantly-sized group were hard to do, and apparently had not been done. Now, though, such attacks, which are functionally very similar to invasions, are indeed plausible.

     Even thoroughgoing originalists and textualists generally believe that Constitutional terms should be read in ways that account of technological developments. The power to raise and support Armies covers air forces; the Copyright and Patent Clause covers photographs, sound recordings, and movies, as well as Writings; the First Amendment covers video images as well as speech and press; only slightly more controversially, the Fourth Amendment covers security of electronic communications as well as of paper communications. Likewise, invasion may be properly read as invasion by large armed forces, by small bands of saboteurs with very dangerous weapons, and by unmanned drones (or even unknowing mules) carrying such weapons.

     3. The power is not just the power to call forth the Militia to repel invasions; it is more broadly the power and the duty to protect against invasions, and to do that which is Necessary and Proper to accomplish this. Vaccination is the most effective means of protection against invasion by a force of saboteurs -- or of drone aircraft -- carrying smallpox. It is likely necessary even in a pretty strict sense of the word; and, assuming there's no unenumerated rights violation here (and I think the Supreme Court in Jacobson was right to say that there isn't), there's nothing improper about it. Therefore, even mandatory universal vaccination is within Congressional power (though of course Congress would probably be wise to allow some exemptions, such as to those with suppressed immune systems).

     What's more, this interpretation of the Invasion Clause would set a pretty narrow precedent. The same justification would also justify other anti-invasion measures, such as requirements that citizens report apparent sabotage activity and the like, but would not be as easily used for other activities that have little to do with attacks on American soil.

     4. Why does this matter? It seems pretty clear that the Court would uphold compulsory vaccination under some theory, even one that requires quite a stretch, and that a Congressional majority would not be much stymied by constitutional questions when vaccination seems necessary.

     But constitutional arguments are helpful not just to get 5 votes on the Supreme Court. They are helpful for establishing the broad supermajority support that can
  1. increase compliance with the law
  2. decrease suspicion that the government is trampling the Constitution -- even when the Congress and the Court endorse the actions --
  3. maintain national cohesion and national commitment in a time of crisis, and
  4. maintain a national consensus that constitutional limitations (including Bill of Rights limitations) are important even in dangerous times.
     Many people may not much care about limits on Congressional power. Many more may not much care about them when the lives of millions are at stake. Still others may be quite persuaded that the Commerce Clause or the war power (even in times there's no shooting war in progress, though I actually think that we now are in a time of war) really does provide a firm foundation for compulsory vaccination.

     But some people might care a lot about the government hewing closely to constitutional commands, and might be more persuaded by a proposal if it seems to them to be really Necessary and Proper to a specific federal power, with a limited amount of stretching. If I'm right that the Invasion Clause argument more closely supports a policy, then that argument may be helpful for bringing that group of people on board -- and to encourage that group, and others, to likewise be punctilious in obeying other constitutional provisions, including those in the Bill of Rights.

     In any event, this is my tentative thinking, based on less than 24 hours of consideration -- I'd love to hear the views of those who have researched some or all aspects of this subject more than I have.


ANTIWAR RESOLUTION FAILS TO PASS L.A. CITY COUNCIL: It might be taken up again Friday, apparently, at a meeting where councilman Nick Pacheco -- who was absent for the original resolution -- might provide the needed 8th vote, and where some other councilmen may change their views; naturally, I hope the result will not change. Once again, my former classmate (and law review editor-in-chief) Jack Weiss deserves credit for keeping the City Council focused on city business, rather than on opining about international matters. From the American Reporter:
On a day when the council could not agree to veto a risky $1.87 million unsecured loan from its municipal water utility to build electric scooters in Hawaii even after its own advisors recommended against it, and had some 53 other items to consider from a variance for a 44-foot housing project to street closures for Hollywood Walk of Fame ceremonies its inconclusive debate on the Iraq war did excite a standing-room-only crowd of peace activists who followed one another to the speaker's lectern in almost unanimous condemnation of the war and with ringing endorsements for the Garcetti-Galanter motion.
A very few promising notes:
Just as as lustily, the activists booed west San Fernando Valley Councilman Hal Bernson, prompting a call for order from Padilla, when he said, "Just remember what would happen if you were on the other side," in Iraq, and tried to speak out against the war. "

"If our country had to depend on people like you, God help us," Bernson said.

Picking up on a theme raised by former Screen Actors Guild president Ed Asner, Bernson responded, "I remember 7 million Jews being exterminated by Hitler, just as Saddam has exterminated tens of thousands of his own people," referring to the rebellious Kurdish people of northern Iraq.

"Mr. Asner said he can't imagine Saddam marching into Poland like Hitler," Bernson added, referring to the actor's earlier comments. "I don't think they imagined it, either."

But Bernson and fellow San Fernando Valley Councilman Dennis Zine were the only two voices raised Tuesday in support of President Bush's vow that America would go to war against Iraq alone, if need be. There appears to be little likelihood of that since Great Britain, among other nations, has committed itself to a U.S.-led coalition, but that point didn't get debated today.

Zine, a reserve police officer, former leader of the powerful Police Protective League and the council's only Arab-American -- he proudly mentioned after the debate that he is being honored this evening by a Jewish synagogue in his district -- recalled that one of his fellow police officers, Sgt. Gary Levy of the LAPD's South Bureau traffic unit, is being shipped out as a Coast Guard reservist and deserves his community's support.


BUT LAW IS NOT THE CALLING OF GENIUSES: Or so says Judge Posner, and who am I to disagree? Posner, one of the more delightful people on the planet, reviews Bruce Allen Murphy's "Wild Bill: The Legend and Life of William O. Douglas." His review begins:
I met justice William Douglas, the longest-serving member of the Supreme Court, when I was clerking for Justice William Brennan. Douglas struck me as cold and brusque but charismatic--the most charismatic judge (well, the only charismatic judge) on the Court. Little did I know that this elderly gentleman (he was sixty-four when I was a law clerk) was having sex with his soon-to-be third wife in his Supreme Court office, that he was being stalked by his justifiably suspicious soon-to-be ex-wife, and that on one occasion he had to hide the wife-to-be in his closet in order to prevent the current wife from discovering her. This is just one of the gamy bits in Bruce Allen Murphy's riveting biography of one of the most unwholesome figures in modern American political history, a field with many contenders.

One of the many lies upon which Douglas built his life made it onto his gravestone at Arlington Cemetery. Even cemeteries have websites these days, and you can read the Arlington National Cemetery discussion of this issue here.


"AN OPPORTUNITY TO LEARN" SOMETHING UNUSUAL: A reliable source tells me this message was sent around George Mason University by the Provost's Office. Should be a very educational experience for the Mason students: I suspect that most of them had never had a conversation with someone who might well be killed or tortured if he said the wrong thing to them.
-----Original Message-----
From: [] On Behalf Of Office of the Provost
. . .
Subject: Message from the Provost

The Center for Global Education, George Mason University, and Al-Jazeera, Middle East-based TV network, are organizing a dialogue via satellite between GMU students and students at the University of Baghdad. The event is scheduled for Saturday, Feb. 22 from 1:30 - 3:30 pm at the Atrium of the Johnson Center. This dialogue will be broadcast live to millions of viewers throughout the Middle East.

Please encourage your students to participate in the dialogue. Interested students must submit a brief statement, including:

A paragraph stating the student's interests Major/degree
A sample questions the student would like to ask the Iraqi students

The Center for Global Education will select the final participants to include students with a variety of opinions and backgrounds. The purpose of the dialogue is to have a constructive and respectful exchange and an opportunity to learn from one another. . . .

We encourage the GMU community to attend the event. In order to reserve a seat please contact the Center for Global Education by Friday at noon.


School officials ordered a 16-year-old student to either take off a T-shirt emblazoned with the words "International Terrorist" and a picture of President Bush or go home, saying they worried it would inflame passions at the school where a majority of students are Arab-American.

The student, Bretton Barber, chose to go home. He said he wore the shirt Monday to express his anti-war position and for a class assignment in which he wrote a compare-contrast essay on Bush and Iraq President Saddam Hussein.

Schools spokesman Dave Mustonen said students have the right to freedom of expression, but educators are sensitive to tensions caused by the conflict with Iraq.

"It was felt that emotions are running very high," Mustonen said. . . .
If the facts are accurate, seems to me to be a pretty clear constitutional violation, unless the school had a pretty solid reason to anticipate a violent reaction, and not just a general concern about "tensions." Hard to distinguish this from the leading precedent, Tinker v. Des Moines Indep. School Dist. (1969), which upheld students' right to wear black armbands to protest the Vietnam War (even though there was evidence that some other students were offended by this, and even though there were certainly "tensions" about the subject) -- same as with the restriction on the high school student's anti-abortion T-shirt that I blogged about a couple of weeks back.

     Actually, I sympathize in some measure with schools' desire to keep order, even at the expense of suppressing student speech; and perhaps Justice Black was right in Tinker that the government as K-12 educator should have virtually unlimited power here, even though it should have very little power to restrict speech when acting as sovereign, outside the schools that it runs. There are also of course powerful counterarguments to Justice Black's position, chiefly that students are basically forced to go to government-run schools (unless their parents can afford a private school education), and that education of children should include education in dealing with provocative viewpoints.

     But regardless of one's position on this question, Tinker is the law, and schools need to follow the law. Unless there's some concrete evidence of likely disruption -- not just a general possibility, but specific incidents, either at this school or at comparable neighboring ones -- or the speech is profane (see Fraser v. Bethel School Dist.) or part of a school activity, such as a newspaper (see Hazelwood), the school has to tolerate the speech.


ROUNDUP: Well, so much for all the high hopes about how Google's acquisition of Blogger would improve the latter. (I know, I know-- it's unfair to blame Google for the Blogger-outage of the past few hours. But still.)

In response to Phillipe's postings about Estrada below, Matthew Yglesias asks:
why are the Bushies so eager to nominate a hispanic Supreme Court justice? To get hispanic votes, presumably. But is there any evidence that appointing very conservative hispanics to important judicial posts is popular among hispanic voters? Is this plan going to be like the strong support from the black community that the GOP's enjoyed every since the Clarence Thomas appointment? Indeed, I think one could make the case that the current administration is the one with the most influential African-Amercan members ever (Rice & Powell, of course), but since it's also an administration that pursues policies most African-Americans hate it's not going to get their votes.
Well, things are a little more complicated than that. Party identification is very sticky over time; the best predictor of my party ID is my parents' party ID. And party identification is driven by emotional attachment and loyalty, trust and distrust, much more than it is by a calculation of policy agreement. On many issues, black voters are closer to Republican positions than are white voters; school vouchers provide the best-known example. On other issues, whites may lean more Republican than blacks, but blacks lean more Republican than is reflected in the trivial levels of black support for Republican candidates-- there are a lot of pro-life African-Americans. And on some issues-- levels of domestic spending-- the parties are so close to each other, or party is such a poor predictor of an individual Congresscritter's votes, that you can't really say that either party "pursues policies" in a sufficiently distinctive and coherent manner for anyone to hate the party because of the policies.

In order to explain, not just black preference for Democrats, but overwhelming, almost unshakeable black preference for Democrats, no "preferred policies" analysis is going to do the trick. (Note that I'm not saying anything distinctive about black voters here; very, very few voters make their decisions on the basis of careful policy calculations.) The gut-level suspicion that too many Republicans are secretly what Trent Lott made the mistake of being openly, the old and ingrained distrust, is a bigger part of the explanation. And personnel appointments are a pretty plausible part of a strategy for breaking that distrust and suspicion. They don't do much of the work by themselves, but they lend credibility to whatever else a party does to change a voting bloc's views of it.

(Matthew, by the way, has been posting up a substantive storm lately. Go have a look.)

Andrew Sullivan expresses the hope that "as the central euro-area continues to be bested by the more dynamic economies on the periphery, Britain stands a chance of reshaping Europe along far more pro-American and classically liberal lines." I'd like to see that as much as anyone. But I'm doubtful. No big west European country has a clearly liberal party as an important part of its politics. Some of the Low Countries and the Scandinavian countries do, as do most of the former Warsaw Bloc countries. But without a big liberal power base in even one of the "Bigs," as the Economist calls Britain, Spain, Italy, France, Germany, and soon Poland (whose party system doesn't resemble that of the other east and central European countries, partly because it is so agriculture-heavy), I don't see a liberal restructuring of the union happening by deliberate design. And stalemate isn't on liberalism's side with respect to the Union, because the institutions devoted to "ever-closerism" keep trucking along and doing what they do. I worry that inertia (remember: an object at rest tends to remain at rest but an object in motion tends to remain in motion) provides more than enough momentum to the centralizers. A certain degree of liberalism is brought to the table by any British government regardless of party these days; but just enough to keep Britain as the lonely voice that it has been for many years.

Roderick Long has a great post observing ("celebrating" is clearly not the right word) President's Day-- and keep reading for a thoughtful post on freedom and the Civil War.

Elsewhere: Australia may finally see market-oriented higher education reform. This has been promoted for years by my buddy Andrew Norton and the good folks at The Centre for Independent Studies.


THE ESTRADA DIALOGUE (CON'T.). Earlier I posted an imaginary dialogue on the role of ethnicity in the Estrada filibuster. Then came Juan's addendum to it. Now here's a continuation:

D: I don't deny that Estrada's ethnicity is a but-for cause of our filibuster. My claim is that if this is objectionable, the Republicans have themselves to blame for announcing their wish to appoint a Hispanic to the Supreme Court and for saying that Estrada is one of the candidates they would consider for that purpose. The question is not but-for causation. It's responsibility for the causation.

It's also not a question, as John Rosenberg says, of Democrats wanting to prevent Republicans from making the first Hispanic appointment (assuming it wasn't already done with Cardozo). They are welcome to nominate Al Gonzales. Not that we're promising to vote for him, but we would have no automatic opposition to him on the ground that he's Hispanic and Republican. We're more worried about Estrada because of his youth, his unclear record, and the suggestion by a former colleague that he is an ideologue. [I picked this link because it also contains the other side of the story. -- Ed.] Michael McConnell was different because large numbers of liberal academics who know him and his work vouched that he is not an ideologue, and also because we have no special reason to think he's headed for the Supreme Court.

R (from a reader): You've established the policy position of the Democrats quite well then: If we nominate a white conservative, we're racists for not nominating more minorities. If we nominate a qualified conservative minority, we're racists for deliberately choosing or seeking a minority appointee. But the public at large doesn't think that way. They (especially the Hispanics) see it as Democratic obstruction of qualified candidates. So in the end, if I have multiple equally qualified candidates, I am better off choosing the one that will help demonstrate the fallacy of your claim of moral superiority on racial issues. And your filibuster is doing exactly that.

D: I don't think nominating Estrada was a racist act. I think the nomination -- but even more, the Bush administration's talk of putting Estrada on the Supreme Court -- is race-conscious, which is not quite the same thing. I have no problem with Bush's wish to put a Hispanic on the Court. I have a problem with the Republicans doing this and then complaining that we are taking ethnicity into account in some inappropriate way when we try to stop an objectionable Hispanic early in the process.

R: But the reason you are singling him out for this "early" treatment is that you're afraid to oppose him later, when you might antagonize your Hispanic "base."

D: I'll admit that's part of it. But it's also easier to oppose him now for other reasons. A filibuster of a court of appeals judge is less costly than a filibuster of a Supreme Court nominee would be.

     [End of dialogue.] Look, I'm not saying Estrada shouldn't be a judge. I just don't think that making his ethnicity an issue is particularly helpful as a way of making the Democrats look bad (or look worse than the Republicans).


ESTRADA'S ETHNICITY (CONT.): I think that the Republican (R) in Phillippe's hypothetical dialogue over whether Miguel Estrada's ethnicity is a "but for" cause of the Democratic filibuster might respond as follows:

R: Miguel Estrada is not the only Bush nominee to an appellate court with Supreme Court potential. Michael McConnell has been discussed as a potential Supreme Court pick, yet this did not stop the Democratic Senate from confirming him to the 10th Circuit. In McConnell's case, Democrats did not fear that confirming him to an appellate court would make his appointment to the Supreme Court harder to stop. To the contrary, some of those who supported his confirmation simply made clear that they would oppose his elevation. Why not do the same with Estrada? Because he is Hispanic, and would be more difficult to oppose. Estrada is easier to oppose now because a nomination to the D.C. Circuit is lower profile and more "inside baseball" than a Supreme Court pick. If Democrats were willing to judge Estrada up-or-down on the merits as a Supreme Court nominee -- should that occur -- there would be no need to go ballistic now. That Estrada is young and conservative, and nominated to a closely divided court, may be significant, but they clearly are not enough by themselves to prompt a filibuster, as Democrats have not resorted to such tactics to stop other nominees fitting that profile. Hence, but for Estrada's ethnicity, there would be no filibuster.

UPDATE: This theory must be right because John Rosenberg says so too.


LAW REVIEW EDITING: Sent to the editor:
After all, the Constitution is full of “values” and “interests.” It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.
Received from the editor (and note that this is not the Harvard Law Review, with which I had a very good editing experience):
After all, the Constitution is full of "values" and "interests." It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.[fn]

[fn:] See generally U.S. Const.
Noooo! Noooo!


CAPITALIZING THE INTERNET The "de-capitalize the internet" meme (suggesting that we should use a lower-case "i" when writing about "the internet") is picking up steam, it seems to me. [And, by the way, I realize that there are several possible meanings that could be ascribed to the headline I used here -- as I discovered to my chagrin when I tried to search at Google and Lexis-Nexis for articles with "capitalizing" and "internet" in the text, there are a lot of things out there about "capitalizing on internet opportunities . . .", many others for financing techniques for "capitalizing internet businesses," . . . ). John Schwartz had an interesting article (as usual) about this in the Times back in December (reprinted, in likely violation of the Times' copyright, here).

     Personally, I'm of two minds on the question of whether it should be "the internet" or "the Internet." (Or to put the matter more precisely, since I share Eugene's deep distrust of "prescriptivism" when it comes to linguistic usage: I'm of two minds about whether I will spell it "Internet" or "internet" from here on out).

     Part of my problem is that I get stuck, even before I get to thinking about that initial "i," at the "the." There are hundreds of thousands of networks out there, large and small. Many of them are "internets" -- in the sense that they are "inter-networks," networks that connect up not just individual computers but individual computer networks. One of those internets (the one that uses the TCP/IP protocol set) has some special characteristics; most significantly, it grew much faster, and is now much bigger, than any of the others. It certainly needs a unique designator (so that we can all talk about it and distinguish it from all the other internets out there). Any name would do, I suppose -- Lisa, or HAL, or RGB2#%, or something. Then we could say things like "There's been a major denial of service attack on Lisa this morning," or "A record number of music files were transferred last month on RGB2#%."

     There's a non-trivial point here, I think. Calling this "the internet" (or "the Internet") obscures this fact -- that one of these inter-networks out-competed all of the others. I spend a lot of my time talking to people, writing, and reading about internet "law and policy" matters, and it seems to me most important that we not obscure this fact, because we need to be thinking clearly about just what it was that made this internet so much more successful than all the others, what it was that made this internet grow so fast. Our failure to understand that is going to make it much more likely that we screw it up.


ESTRADA, ETHNICITY, AND RESPONSIBILITY. I enjoyed the post yesterday by my colleague, Juan, regarding the role of race in the filibuster of Miguel Estradas nomination. But I think the implications of the analysis might be sharpened a bit. Let me review the bidding and advance it a little by positing an unusually candid dialogue between a hypothetical Republican (R) and Democrat (D):

R: You ought to be ashamed of yourselves. You wouldn’t filibuster Estrada if he were a white guy from Iowa.

D: Actually I think we might. What’s clear is that you wouldn’t have nominated Estrada if he were a white guy from Iowa.

R: Sure we would have. Look at his qualifications.

D: His achievements are impressive, but there are plenty of conservatives in Washington with qualifications much like his – former Supreme Court clerks who have worked at a reasonably high level in the executive branch or distinguished themselves in other ways, etc. If Estrada hadn’t been Hispanic, you would have skipped over him just as you skipped over many other white guys to get to him.

R: I deny that. Bush has nominated lots of white guys. Some of them may even be from Iowa.

D: Okay, I guess we’ll have to agree to disagree. None of this is to the point, though. We’re really opposing Estrada because we think Bush may try to put him on the Supreme Court – and clearly he wouldn’t be inclined to do that if Estrada weren’t Hispanic. (The leaks from the Bush administration make clear both that Estrada is or was being considered for this summer’s likely vacancy and that this is because Bush wants to nominate a Hispanic.) So it’s the Bush administration’s consideration of race that is driving the whole situation. If we were confident that Bush would nominate Justices who were best qualified without regard to race, we wouldn’t spend all this energy targeting a judge who is an ethnic minority. But we can’t have that confidence. Last time a Republican president made a Supreme Court nomination, it was Clarence Thomas. George Bush, Sr., said that Thomas was the “best man for the job on the merits,” and he said the fact that Thomas was black had “nothing to do” with the nomination, a cynical and ridiculous claim. If Republicans are going to take ethnicity into account in this way, we have little choice but to take a nominee’s ethnicity into account as well when we think about whether and how to spend our strength opposing nominations to the lower courts.

R: Well, I think Clarence Thomas has turned out great, but I’ll admit that was a silly thing for the first Bush to say. Then again, he said a lot of silly things. What you overlook, though, is a key reason why we like to nominate conservative minorities like Thomas or maybe Estrada or Al Gonzales for that matter Janice Brown: you guys have trouble opposing them; you have a weakness for members of minority groups (whereas you are likely to treat non-minority conservative nominees like dirt). We might not have been able to get a judge as conservative as Thomas onto the Court if he hadn’t been a minority -- but he was, so we did (barely). You say that if we didn’t care about ethnicity, you would stop worrying about it. But now you can see that it’s really the other way around: if you guys didn’t care about ethnicity, we’d stop caring about it. For us it’s strategically useful. When you stop falling for it, we’ll stop using it.

D: In that case, consider this filibuster (even if it fails) our way of saying we aren’t falling for it anymore – and on this view you are in no position to complain that we are picking on a minority. In effect you are daring us to do so. But anyway there’s more to Estrada as a Supreme Court candidate than just the hope that Democrats would be tricked into confirming him because he’s Hispanic. Bush appears to be independently interested in putting a Hispanic on the Court – not just because it will be hard for us to oppose a Hispanic, but because he actually likes the idea, either because he really wants to see the Court made more ethnically diverse in this way or because he hopes it will win him some Hispanic support in 2004 (my interpretation). So I’ll stick to my guns: the fact that Democrats tend to roll over for minority nominees is not a “but for” cause of Estrada’s appointment or his candidacy for a Supreme Court nomination. He probably would be considered just the same even if there was no thought that Democrats would cut him slack on account of his being a Hispanic (as it’s now clear that we won’t). For other reasons, though, his ethnicity is a but-for cause of the White House’s consideration of him for the Supreme Court: without it he wouldn’t even be discussed at this point. Maybe someday, but not now. I therefore wouldn’t be pointing fingers at Democrats about how we are taking ethnicity into account in some invidious way. The White House – this one, and the previous Republican administration – have as large a share of responsibility for the significance of his ethnicity as we do, and indeed probably a larger share. How the whole idea of deliberately nominating a Hispanic can be squared with the administration’s hostility to affirmative action is a mystery to me, but that’s a conversation for another day.

     Maybe there’s a good comeback for the Republican here, but I’m not sure what it is. Probably someone will let me know. In the meantime, though, I am inclined to think that Democrats have no reason to apologize for singling out a minority for heightened opposition. (This may be little more than a restatement of what Juan was saying. I’m not sure.)

Tuesday, February 18, 2003


GEEK ALERT: Hey, cool. WB has taken the two unshown episodes of the unjustly-neglected (sorta) Birds of Prey and jammed 'em together into a two-hour series finale, Wednesday night. "Sorta:" The show had a pretty serious dialogue problem. A really, really serious dialogue problem. But it also had surprisingly good acting from two of the leads, much more action and superheroics than Smallville Creek, and a very nice visual flair. I think its demise before it got a chance to iron out the rough spts (did I mention the dialogue?) was a shame, and I'll endure the requisite ridicule from my wife to watch and see how they wrap things up. [/geek alert] (Substantive posting will resume tomorrow.)


WILL BE ON RADIO FREE REPUBLIC FROM 6:05 PACIFIC TO 7:00 PACIFIC TODAY: Click here for more info; I'm supposed to be talking mostly about the First Amendment. Haven't done this before -- should be an interesting experience!


"EUGENE VOLOKH AS USUAL GETS IT WRONG!": That was the subject line of a message I got about my google screen shot post (.PNG format, here's the .BMP format). The message went on to say "Stop repeating lies." Uh, I think "lie" isn't exactly the right term.

P.S. That "Axis of Weasels at the U.N." picture (link via InstaPundit)? It's a dirty lie! They don't really let actual weasels sit in the U.N., dressed in suits.

P.P.S. Maybe the joke's on me, and the sender of the message is rolling on the floor laughing about how I misinterpreted his e-mail as serious . . . .


UPDATE ON THAT GOOGLE SCREEN SHOT: It's also available here, in .PNG format, in case your browser can't handle .BMP files; thanks to reader Neil Klopfenstein; and here in .JPG and in .GIF, thanks to reader A. Harry Williams.


BUSHISM OF THE DAY: Layman's Logic beats me to the punch on today's Bushism of the Day in Slate. Look, don't we all do exactly this all the time in our own conversations?


Communism wrung our neck while the honourable democracies issued communiques. And now they are surprised that all the countries in the former communist bloc do not give a damn about obsolete stratagems of France and Germany.
Thanks to InstaPundit for the pointer.


CHECK OUT: This Julian Sanchez post (almost an essay) on libertarianism, the right and the good, simplicity, and more. I'm unconvinced that the writer he's glossing had anything so thoughtful in mind, but if the WSJ piece prompted Julian to write essay, so much the better for the WSJ piece.


NINTH CIRCUIT PANEL EXPRESSES SYMPATHY FOR INDIVIDUAL RIGHTS VIEW OF SECOND AMENDMENT, and a concurrence, by Clinton appointee Ronald Gould, specifically endorses this view. The Ninth Circuit is still bound by a previous panel decision (Hickman v. Block) that adopted a states' rights view, and Hickman can only reversed by an en banc panel. Such en banc rehearing would require a majority of the Ninth Circuit judges to vote to rehear a suitable case (not this one); then an 11-judge panel would be assigned, and would have the power to overrule Hickman, if it chooses. Given the current composition of the Ninth Circuit, I doubt that will happen. Still, the panel's decision is a powerful signal that even on the Ninth Circuit, and even among Ninth Circuit judges appointed by Democrats, the individual rights view has significant persuasive power.

     How Appealing, as usual, has long and apt excerpts, and a pointer to the decision.

UPDATE: A reader reminds me that the third judge on the panel -- Arthur Alarcon, who fully joined Diarmuid O'Scannlain's opinion -- is a Carter appointee. O'Scannlain is a Reagan appointee.


ANNE APPLEBAUM ON SADDAM'S RATIONALITY: Writing the post below reminded me of the excellent piece by Slate's Anne Applebaum on this topic.


SADDAM'S RATIONALITY: David's post below made me think of a broad point about rationality (which is similar to my NRO piece last September, but somewhat different).

     Rationality, I think, is generally a judgment about one's means. If someone really wants to eat a lot of green peppers (ick), and decides to get green peppers by waving his arms and shouting "Alakazam! Green peppers, come here!," we think he's irrational. But it usually doesn't make much sense, I think, to talk about rationality when one is judging people's goals; wanting more green peppers, or wanting even more dangerous things (such as unsafe sex or harmful drugs), or wanting to commit evil acts (such as to molest children), is hard to call "rational" or "irrational." It may be immoral, it may be harmful to survival, but it's not irrational -- and steps you take that are reasonably calculated to achieve those goals aren't irrational, either.

     So the question isn't just "Is Saddam rational?," but "What are Saddam's goals, and might his rational pursuit of those goals be very harmful to us?" If Saddam's goal is simply self-preservation, and he's rational, then I agree that he's probably not that great a danger to us. But there's no reason to think that his goal is simply self-preservation -- rather, it seems that his goal is a mix of self-presentation, power, glory in the minds of fellow Arabs present and future, and a variety of other things. That explains the attacks on Iran and Kuwait better than a pure self-preservation story, since to the best of my knowledge those attacks would have been rationally seen up front as risky to his survival, and would have made sense only if he was trying to do something more than just preserving himself. And the notion that ambitious people are driven by the desire for power and glory, even at some risk to self-preservation, should be hardly puzzling.

     And if Saddam is indeed driven by these desires -- as well as perhaps a hatred of America, or a desire for revenge, or a variety of other factors -- as well as self-preservation, then simply saying "Using -- or threatening to use -- weapons of mass destruction against us would be bad for him, and he's rational" is hardly an answer. First, using such WMDs is not guaranteed suicide for him, for reasons that many people have explained before; he may feel that he can deter us from killing him just as we're trying to deter him from killing us (especially if we're seen as having backed down as to earlier threats that we had made against him). Second, though such an attack (or threatened attack) would increase his chance of dying, and would be irrational if his only desire were self-preservation, he may conclude that the attack or the threat would also increase his chance of getting more power and more glory -- and would thus be worth it.

     Finally, even rational people miscalculate. That's the explanation that many defenders of the "Saddam is rational, so we can deter him" thesis give as to his attacks on Kuwait or Iran. But if he miscalculated there, he may well miscalculate with us, both now, and when he's older, and when his faculties might begin to fail.

     So I agree that there's a risk that if we attack Saddam now, he'll find it rational to attack us with biological or chemical weapons. But if we don't attack him now, then in coming years he may find it rational (assuming that he is rational) to attack us, or to try to extort concessions from us by threating to attack us, with more biological or chemical weapons, better delivery systems, and quite possibly nuclear or radiological weapons. I think that it's better to run the risk of attack now, rather than to run the risk of a much larger attack later. And this is especially so given that the other would-be Saddams of the world are doubtless looking closely at what we'll do, and will emulate Saddam if they see that his possession of some weapons of mass destruction is enough to deter us from attacking.


Eugene commented yesterday (though not "on the merits") on an agreement reached by several leading scientific publishers to censor reports of biological research if they could potentially assist terrorists who are trying to design biological weapons. It's a close and difficult question, but I think the agreement's a step in the wrong direction. Not just on general "first Amendment" type grounds, the need for free exchange of ideas and all that, but on the more practical grounds that this may well do more harm than good in the fight against biological terrorism. Mike Eisen, a molecular biologist at UC-Berkeley (and a friend and sometime co-author of mine), makes the point in Amy Harmon's article in this Sunday's New York Times that a publication ban will hamper researchers doing legitimate work in these areas (work that will probably be crucial for designing preventive measures against terrorist attacks); in fact, researchers may avoid working in these areas at all because they are uncertain as to whether they can get their work published when it's completed -- publication being, of course, the coin of the realm for most scientific researchers. Even if you think that some degree of secrecy is needed, Eisen suggests that it would be far better to classify this research (the way the government classifies a good deal of research on nuclear weapons), rather than to rely on the journals to exercise discretion not to publish; that way security is (hopefully) not compromised, but the necessary work also actually gets done.


GOOGLE, AS USUAL GETS IT RIGHT: This screen-shot is worth a look.

UPDATE: It's also available and here in .JPG format, in case your browser can't handle .BMP files, thanks to reader A. Harry Williams.


IN DEFENSE OF C: Reader Trevor Anderson, writes in response to my annoyance at the C =/== confusion:
Don't you be slaggin' the 'C' there, bro! The finest, and most able programming language that ever was written. Its flaws are precious to its acolytes, who remain in thrall to its anarchic splendor.
He then goes on to mount a pretty good substantive defense of C generally; and, hey, I like C generally, I just think that a bit stronger (though easily waivable) typing, plus an avoidance of weird nonstandardness like the =/== thing, would have made it still better. But then he shifts from substance to colorful characterization, which is what I really want:
There are other languages, sure, and they are not all bad, I suppose. Java is okay if your objects need to be oriented: it looks a lot like C and its working parts are written in C (I'd bet!), but there is something of the granola-eating, latte-quaffing, socks-with-sandals options-watcher to its aura that I just don't like. If Java is still too liberal for your tastes there is always Ada, as good an example of totalitarian programming as ever there was. Choc-full of turgid rules and regulations and government interference, invented by comittee with the express intent of keeping incompetent programmers in business. Full of itself, it lets the anal control freaks among us think we're really in charge. Ugh. Another choice might be Pascal, eminently suited to prescriptivists: no split-infinitives there, pal, just rigid typing and pedantic grammar.
Nicely said, whether you agree with it or not.


WHY HASN'T SADDAM KILLED US ALL? Doug Bandow argues at that "the best evidence that Iraq can be deterred is that we are alive today":
"However much [Saddam] hates America, he doesn't want to die. . . . Alas, the administration is pursuing the one course that will eliminate this deterrence. Attack Iraq, and Saddam has no incentive not to strike and then hand off any remaining weapons to terrorists."
. It's an argument one hears frequently these days -- that containment seems to be working (evidenced by the fact that, though he seems to have continued to produce WMD, he hasn't used them yet); and that the one reason he might use those weapons is if we attack and he has nothing to lose from unleashing his anthrax or botulinin stores on innocent civilians.

     I'm not sure I buy it, though. It implies, among other things, that there's a kind of rational calculus in Hussein's thinking, that we can get inside his head and figure out his motivations; I doubt that's true. Mad-men are sometimes just that -- and the risk of being wrong here, the risk that there are other reasons behind his non-use of these weapons (such as inadequate delivery mechanisms), may be too high for us to engage in too much of this kind of 2d-guessing.


COOL MISSING PAGE MESSAGE: Here it is. Thanks to C. Eichhorn for the pointer.


KEEP ON FACT-CHECKING: The folks at Spinsanity are fact-checking Michael Moore's fact-checking of the "Bowling for Columbine" fact-checkers. I give up. No more Moore posts for me.


WE ARE PI: The last name that is borne by my brother Sasha (a notorious pi-phile) and me is, it turns out, represented within the binary digits of pi, if you map the Latin alphabet into 5-bit numbers. "Volokh" appears at binary digit 2372382672; here's the representation from several digits before to several after:
Granted, our name is hardly unusual in this respect; see the pi-search page. Eugene is at digit 18731392:
(Thanks to GeekPress for the pointer.)


THE "HISPANIC" QUESTION: Supporters of the Estrada nomination claim Democrats are opposing Miguel Estrada because he is Hispanic. Estrada opponents reject the charge. Who's right? I think the proper question to ask is whether Estrada's nomination would have provoked the same level of opposition were he not Hispanic. Put another way, were he Michael Estrada, a Caucasian born and bred in Iowa, would there be a filibuster against his nomination? I think the answer is no, there would not.

It seems rather clear that most, if not all, of the proffered arguments against Estrada's confirmation are place-holders (see post below). I believe the real reason Estrada has sparked such opposition is that he is seen as a potential nominee for the Supreme Court. Why is Estrada on the Supreme Court short-list? Because he is Hispanic. This is not to discount Estrada's impressive qualifications -- he would certainly be well qualified for the Court after a few years of service on an appellate branch -- but I don't think that there is much question that were Estrada not Hispanic, there would be far less discussion of his Supreme Court prospects. The political nature of the nomiantion process makes Estrada a more appealing Supreme Court nominee because he is Hispanic.

At the same time, the fact that Estrada is Hispanic is a reason some liberals are afraid of an Estrada nomination. Just as it was difficult for many Democrats to oppose the nomination of Clarence Thomas to the Supreme Court, and risk alienating an important political constituency, it will be difficult for some Democrats to oppose the first Hispanic nominee to the Court. It is imperative to stop Estrada now, before he attains a perch that would position him for a Supreme Court bid, as by that time it may be too late. This drives the opposition to Hispanics who are likely to have judicial philosophies that Democrats would oppose. Again, were Estrada not Hispanic, he would not be in this position.

None of the above means that Estrada's opponents are bigots, anti-Hispanic, or anything of the sort. They don't wish to keep Hispanics off the appellate courts. Rather, they want to keep out politically attractive Supreme Court nominees with unfavorable judicial philosophies -- and Estrada falls into that category because he is Hispanic. In other words, Estrada's ethnicity may not be the proximate cause of the opposition. Nonetheless, it is a but-for cause.


MORE ON THE NEW YORK SUN: Best of the Web recently came to the defense of The New York Sun's "antiwar speech as treason" editorial; Brendan Nyhan in SpinSanity has a quite persuasive response to that defense, as does Jesse Walker in Reason's Hit & Run. I generally very much like Best of the Web, but think that on this point its author erred.


WASHINGTON POST ON MIGUEL ESTRADA: A rather pro-Estrada editorial this morning (thanks to The Corner for the pointer):
The arguments against Mr. Estrada's confirmation range from the unpersuasive to the offensive. He lacks judicial experience, his critics say -- though only three current members of the court had been judges before their nominations. He is too young -- though he is about the same age as Judge Harry T. Edwards was when he was appointed and several years older than Kenneth W. Starr was when he was nominated. Mr. Estrada stonewalled the Judiciary Committee by refusing to answer questions -- though his answers were similar in nature to those of previous nominees, including many nominated by Democratic presidents. The administration refused to turn over his Justice Department memos -- though no reasonable Congress ought to be seeking such material, as a letter from all living former solicitors general attests. He is not a real Hispanic and, by the way, he was nominated only because he is Hispanic -- two arguments as repugnant as they are incoherent. . . .

To be sure, Republicans missed few opportunities to play politics with President Clinton's nominees. But the Estrada filibuster is a step beyond even those deplorable games. For Democrats demand, as a condition of a vote, answers to questions that no nominee should be forced to address -- and that nominees have not previously been forced to address. . . .

Nor is the problem just Mr. Estrada. John G. Roberts Jr., Mr. Bush's other nominee to the D.C. Circuit, has been waiting nearly two years for a Judiciary Committee vote. Nobody has raised a substantial argument against him. Indeed, Mr. Roberts is among the most highly regarded appellate lawyers in the city. Yet on Thursday, Democrats invoked a procedural rule to block a committee vote anyway -- just for good measure. It's long past time to stop these games and vote.
I haven't been following the nomination battles closely (surprising, perhaps, but there it is), but the Post's taking this stand seems to me newsworthy in itself.

UPDATE: Whoops! Coblogger Juan beat me to it, by five minutes.


THE BUSH PRESIDENTIAL FAMILY: I heard on the radio today (the Dennis Prager Show) that George W. is actually related not to one other President, but two -- Barbara Bush, it was said, is a direct descendant of Franklin Pierce. Needless to say, I don't believe everything I hear on the radio, and this wasn't quite true; but apparently Barbara Bush is either a great-great-great-niece of Pierce's or a fourth cousin four times removed. Or of course they could be completely unrelated; I don't believe everything I read on the Web, either.

     More importantly, even if it's true, it's probably not something George W. is likely to be terribly proud of. Imagine what they'd say if he loses in 2004 -- "there he goes, a single-term President from a family of single-term Presidents." (Come to think of it, the Adamses were both single-termers, and the Harrisons were single-termers or less; the first Harrison's first term was cut short very quickly by death.) Still, whatever you make of it, there it is, a juicy little morsel of probable fact served for your intellectual delectation.


JUST VOTE: The Washington Post shreds most of the arguments proffered in support of the Miguel Estrada filibuster (such as these) and calls upon the Senate to hold an up-or-down vote. This is significant -- not least for the fact that the Post would almost certainly oppose a future Estrada nomination to the Supreme Court.


An affirmative action bake sale organized by the Bruin Republicans last week has provoked impassioned responses from a top California Democrat and political student groups on campus.

The sale, held on Bruin Walk on Feb. 3, offered cookies at different prices depending on the customer's race and gender. Black, Latina and American Indian females were charged 25 cents for cookies that cost males of minority descent 50 cents. White females were charged $1, and white males and all Asian Americans were charged $2.

Students selling the cookies were assigned name tags portraying them as "Uncle Tom," "The White Oppressor" and "Self-Hating Hispanic Race Traitor."

Chairman of the California Democratic Party Art Torres voiced his disapproval in a Monday press release.

"I am deeply saddened and disheartened at the activities of the Bruin Republicans," he said.

Torres, a former California state senator, believes UCLA Republicans have been "emboldened" by the recent race-sensitive remarks by various Republican leaders, specifically citing Trent Lott's, R-Miss., comments and Congressman Howard Coble's, R-N.C., praise of internment camps for Japanese Americans during World War II.

"It is a shame that Republicans at UCLA have chosen to mimic the extreme views of their Republican leaders," Torres said. . . .
The newspaper does not quote Torres's explanation of how advocacy of color-blindness (by the UCLA students) is necessarily linked to defense of color-based segregation (Lott) or race-based internment (Coble). The article continues:
The intent of the sale, Jones said, was to "bring the issue (of affirmative action) down to everyday terms. We wanted to show how affirmative action is racial division, not racial reconciliation."

As for the name tags of the vendors, Jones said many people would look at a black or Latino student taking part in a Bruin Republicans anti-affirmative action sale and either think to themselves or say out loud that the student is a traitor to his race. Therefore, the Bruin Republicans decided to "turn it on its head" and use the names themselves, before passers-by had a chance. . . .

Juan Carlos-Orellana, president of the Democratic Law Students Association, responded to the event with similar indignation, referring to the bake sale as an "insulting trivialization of the serious issue of race and gender equality."

Orellana sees the effort by the Bruin Republicans as detrimental to the discussion of affirmative action.

"By reducing the complexity of this issue into dollars and cents and cookies they are working to stop discourse," he said. . . .
Actually, I would agree in some small degree with Orellana: The bake sale does "reduc[e] the complexity of this issue" -- but that's true of a wide range of political expression, from picket signs (how many such signs really express the full "complexity" of the debate) to symbolic speech of all sorts (do black armbands worn during the Vietnam War, for instance, capture the "complexity of [the] issue"?). Successful political movements often combine both complex arguments and more simplified symbolic expression that trades off complexity for vividness and forcefulness.

     As to the "working to stop discourse" line, I just don't get it. First, how exactly does the bake sale "work to stop discourse"? Second, if one is really concerned about the tendency of expression to "stop discourse," what "work[s] to stop discourse" more -- people who express themselves through the bake sale, or people who seem to be trying to use harsh condemnation to discourage such expression?

UPDATE: Great minds think alike; the Michigan Review recently did something similar. Thanks to reader Tom Brandt for the pointer; The Corner also mentions this.

Monday, February 17, 2003


CONGRESS AND COMPULSORY VACCINATIONS: Some people made the following argument: Forget the Commerce Clause; Congress has the power to raise armies, maintain a navy, and organize, arm, and discipline the Militia (art. I, sec. 8, cls, 12-16). It could draft everyone in the military. It could make everyone a member of the unorganized militia (in fact it already has done so as to all male citizens age 18 to 45). Since it can tell soldiers and militia members what to do, it can tell them to get immunizations, and, if that's so, there's no need to actually draft them to issue such an order. What's more, since people who die can't serve their country, Congress can order immunizations in order to maintain the eligible military pool.

     The trouble with this argument is that it rests on an attenuated enough chain of causation that, if accepted, it would give Congress very broad, likely unlimited, power. For instance, couldn't the Violence Against Women Act be justified on the grounds that Congress could incorporate women into the militia (women who are in the National Guard already are in the militia), and women who are killed, seriously injured, or otherwise traumatized can't serve their country effectively? Or couldn't the Gun-Free School Zones Act be justified on the grounds that Congress could order soldiers not to carry guns in school zones, any American could be drafted as a soldier, and therefore Congress could bar the carrying of guns in school zones even without drafting everyone? Given the Court's sensible desire not to read article I as something that it clearly wasn't meant to be -- a plenary grant of power to Congress -- this sort of tenuous connection to military service might not be enough.

     On the other hand, perhaps I'm mistaken, and I'm certainly not up on the military clauses caselaw (if there is any). If anyone out there actually knows the relevant cases, and has a detailed legal argument that he can present on this, I'd love to hear it.


BIQ: I'm happy to report that according to BlogStreet, our BIQ -- Blog Importance Quotient -- is #4, which puts us behind InstaPundit, Andrew Sullivan, and Ken Layne. I have no idea what this means (yes, I know how BlogStreet defines it, but I have no idea what it really means), but it sounds nice!

UPDATE: A reader reports that we've now -- in the past few hours -- risen to #3. Go figure.


SMALLPOX IMMUNIZATIONS AND CONGRESSIONAL POWER: Responding to my question, lawprof and Commerce Clause expert Brannon Denning writes:
I could certainly see a credible argument that Congress could, though there are equally compelling arguments against.. . .

Congress might draft a statute that seeks to protect the "channels" of interstate commerce, and persons and goods moving therein, from contracting or spreading the disease by requiring persons engaged in interstate commerce, or some similar language, to get the smallpox vaccine.

Assuming, though, that Congress would want to require everyone to get it, I still think that a credible argument is available. One might argue that the vaccination is part of a larger regulatory scheme, i.e., securing the Nation and its economy from being ravaged by a terrorist-inspired plague, and that end requires Congress to be able to mandate even the most isolated citizen (isolated from interstate commerce, that is) to get vaccinated, because, if aggregated, the effects of un-inoculated citizens on interstate commerce would be devastating. This is the Wickard v. Filburn aggregation argument.

The problem with that is it might be difficult to characterize vaccination as "economic activity." While Morrison did not hold that noneconomic activity could never be aggregated, the Court noted pointedly that Wickard involved a Congressional scheme to prop up the commodities market, and that in other cases in which aggregation was approved, there was a pretty clear connection between the activity and "commerce" or "economic activity." Second, Congress would want to draft the statute broadly to cover everyone, so the statute would probably lack a "jurisdictional nexus" like "in or affecting interstate commerce." Again, this is something whose absence the Court seized upon in both Morrison and in Lopez. Third, one might say that this sort of vaccination, this protection of public health, is the sort of activity traditionally left to the states to oversee. Finally, the law might be vulnerable to the "non-infinity principle," i.e., where's the stopping point if Congress can, under its commerce power, force citizens to obtain a particular type of vaccination against an uncertain risk of infection.

Your hypothetical actually highlights nicely the lacunae in the Court's decisions. What is "economic" or "commercial" activity? The Court uses the terms interchangably, but they aren't quite the same thing. When, precisely, is Wickard aggregation permitted? And note that the factors in the "affecting commerce" test are in tension with the other areas (instrumentalities and channels) in which Congress presumably has carte blanche to regulate. Does it really make sense that just because you cross a state line, Congress can regulate you in ways that it might not be able to do so if you stayed in one state? Doesn't that tend to erode the notion of limited powers?

To conclude, though. My sense is that there wouldn't be much of a constitutional fight. The lower courts have been almost uniformly timid in the application of Morrison and Lopez. And the Court itself has shown little signs of aggressiveness in enforcing those cases, as it has in the sovereign immunity field. In a close case like this, if the Court (or any court) were convinced that the government was responding to a serious threat, I suspect they'd uphold it.
Brannon also offers the following brief summary of the Court's caselaw here:
[T]he Court [has] characterized three fairly broad categories under which Congress could regulate. It could (i) regulate to protect the channels of interstate commerce, including persons and things moving therein; (ii) regulate the instrumentalities of interstate commerce; and (iii) regulate those intrastate activities that nevertheless have a substantial effect on interstate commerce.

According to Lopez and Morrison, we know that the Court will look at several factors in assessing whether a particular activity regulated under category (iii) "substantially affects" interstate commerce. It will look at (i) whether the activity is commerce or noncommercial (a distinction the Morrison Court said was "central" to its holding in Lopez); (ii) whether the statute has a "jurisdictional nexus" tying the activity to interstate commerce, so that courts can determine, on a case-by-case basis, whether the activity does effect interstate commerce; (iii) it will examine any findings that Congress makes, though Morrison made clear that the mere presence of findings aren't enough to sustain an otherwise unconstitutional statute; (iv) whether the activity trenches upon a field of regulation traditionally superintended by the state; (v) whether the activity is part of a larger regulatory scheme whose efficacy would be undermined were Congress not able to reach the intrastate activity; and (vi) whether permitting Congress to have this power to regulate a particular intrastate activity would mean, for all practical purposes, that there were no
judicially-enforceable limits on the commerce power.


WEATHER: We Chicagoans pretty rarely have a chance to gloat during the wintertime. But have a look at this. (For those who don't know the geography of flyover country: the pointy-down blue thing is Lake Michigan. The pointy-down territory that begins at the southwest corner of Lake Michigan is Illinois. And the metro Chicago area is the part of Illinois that fronts along the lake.)


FACT-CHECKING THE FACT-CHECKERS: It turns out that some of Michael Moore's fact checkers may need fact-checkers of their own. See Moore's responses here and decide for yourself.


REASON ON OLIVER STONE AND CASTRO: Nick Gillespie, on Reason's Hit & Run has some trenchant criticisms of Stone's folly.


NEW IN PRINT: If you're at an institution with an institutional subscription to Cambridge journals online, then I believe this link should take you to the table of contents of 20(1) Social Philosophy and Policy (2003), from which you could download my "Liberalism's Divide, After Socialism and Before." (You could also download articles by William Galston, David Miller, John Tomasi, Chandran Kukathas, and many others.) This article lays out some of the organizational framework for my book-in-progress.


"I KNOW IT WHEN I SEE IT": Reason's Hit & Run blog, which I generally much enjoy reading, reports that:
Leading scientific journals announce that they will omit data from research papers which might be of use to terrorists. What such deadly info might look like is an admitted tough call. One expert says he'll use a version of the obscenity test.

"You know it when you see it," said Ronald Atlas, president of the American Society of Microbiology.
The blog post doesn't expressly take a position on this, but I take it that it's a bit critical -- surely Reason has no affection for the obscenity test generally.

     But it seems to me that while "you know it when you see it" is a lousy way to define a coercive legal rule -- one that's enforced through threat of criminal punishment, and especially one that restricts speech -- it's a necessary tool for any editor. Is an article novel and interesting enough to merit publication? There's no bright-line test; the editor knows it when he sees it. Does it adequately deal with potential objections? Again, no clear rule (certainly one needs to deal with some objections, but not with all conceivable ones); the editor knows it when he sees it. Is the article unfair, rude, or unduly harsh to those it criticizes, or are its criticisms fair, measured, and polite? You know it when you see it. Likewise for whether an article has the potential to help terrorists (and the benefits of publishing all the data don't outweigh the risk) -- there can be no bright-line rule defining this, but that's not reason enough for editors to ignore this question.

     More broadly, libertarians often stress that the government and private institutions are properly subject to different rules; that coercive government power ought not be used in some way doesn't mean that private organizations may not use their much more limited power in a similar way. The same, it seems to me, applies here. Naturally, I would oppose editors exercising their discretion (here, discretion to exclude material that seems to be of help to terrorsts) in foolish ways -- but there's nothing inherently wrong or foolish with them having such discretion.


CONSTITUTIONALITY OF FEDERALLY MANDATED SMALLPOX VACCINATIONS: Fellow lawprof Ed Richards asks: Does Congress have the constitutional power to mandate vaccinations of all health care workers (let's set aside the question of whether this is a just or effective plan)? Jacobson v. Massachusetts, an early 1900s case, held that it wouldn't violate any unenumerated individual rights for a state to impose such a mandate; and though much has changed in unenumerated rights jurisprudence since then, I suspect the result would be the same now. Likewise, given Employment Division v. Smith, I don't believe there'd be any Free Exercise Clause objection to such a policy (even given the so-called hybrid rights doctrine), but let me even set that issue aside for now. Rather, the question here is whether Congress, as opposed to the states, has the power to do this, or whether it exceeds Congress's constitutional powers.

     I would love to hear any expert legal answers under current constitutional law to this question, and to the broader question of whether Congress would have the power to mandate the vaccinations of all citizens, perhaps excluding those who have provable heightened risk factors (e.g., a suppressed immune system). I'm not looking for general principles theories, or claims about the way the Constitution should be understood were it not for those nasty New Dealers / Reagan-Bush Supreme Court Justices / whoever else; those certainly have a place, but that's not what this question is about. Rather, I'm looking for brief but detailed legal answers -- presumably from law professors, lawyers, or law students -- that cite the relevant Supreme Court cases and explain why this is / is not justifiable given Lopez, Morrison, Boerne, and the other recent cases. If you have a good technical answer to this, please e-mail it to me at volokh at Thanks!


NO HONORING THOSE WHO DO DISHONORABLE THINGS: The rather hit-or-miss Tongue-Tied column on FoxNews has another puzzling complaint today:
An honor corps at Texas A&M University has been suspended by the school administration for saying mean things to anti-war protestors during a recent protest, reports the Texas Examiner.

Administration officials chastised the Ross Volunteer Honor Corps association for allegedly harassing a group of 30 anti-war protestors carrying signs saying "Bush Is a Baby Killer" during a Feb. 3 protest on campus.

Anti-war activists accused corps members of pointing their non-firing guns at the group and singing, "Some say freedom is free, but we know Aggies who paid the price." The corps' refer to their singing as "jodying," which they use for motivation and rhythm when jogging.

Hugh Stearns, an anti-war protestor who attended the vigil said, "Some of the cadets glared [at us]."
     So here's the situation: The "Honor Corps" group is "a select honored division of the Texas A&M Corps" "which serves as the honor guard for the Governor of Texas," according to the opinion piece cited by the column; the Texas A&M Corps, in turn, is a quasi-military training organization that offers "an opportunity to live a disciplined lifestyle while gaining practical experience in leadership and organizational management." Rather than acting honorably or in a disciplined manner, they allegedly pointed their (inoperable) guns at people whose views they disliked -- though there's a factual controversy over this claim -- and apparently shouted loudly enough to shout down an opposing demonstration. As best I can tell the university administration didn't punish any individual students as students, but they apparently suspended the special privileges given to the Corps.

     Assuming the facts are as the university administration alleges, I see nothing wrong with its actions. Here you have a group that is given special privileges and responsibilities that go beyond what all other students and student groups get. What's more, the group's function is quasi-military training in a disciplined environment. Such quasi-military organizations are supposed to be more respectful of others, more civil, more honorable, and more self-disciplined than the average student. And as groups which emphasize their military nature, they should certainly know better than to point any gun, even an inoperable one, at someone whom they're not about to justifiably shoot.

     More broadly, this seems to me to reflect a fundamental free speech distinction: Students and student groups at public universities are entitled to free speech rights; but the university need not give special honors (as opposed to the normal rights given to every student and student group) to those groups who act in a dishonorable manner. That was my point as to Stanford inviting as a mentor someone who defended Stalinist repression and advocated violent attacks on the government; that was my point as to Harvard giving a special invitation to British poet Tom Paulin, who said that "[Israeli settlers] should be shot dead," "resigned from the British Labour Party recently after realising it was 'a Zionist government,'" and has demand that the Guardian require some of its writers to reveal their "Zionist credentials"; it likewise applies here. When choosing who will be the honor guard for the governor of Texas, the university may properly consider how well the candidate group has behaved.

     Of course, that still leaves open the proper magnitude of the discipline; the group has been suspended, and perhaps it should be reinstated after being suitably punished (and after its members apologize, again assuming the facts are as the administration claims). Even generally honorable people sometimes do dishonorable things, and often they should be, under suitable circumstances, forgiven. But the suspension, and other possible forms of discipline, seem to be quite justified.

UPDATE: Reader Erin Willis has a different understanding of the likely facts -- naturally, as I've mentioned above, if the facts are different, the legal analysis should be, too:
I am a recent former student at Texas A&M. Although I do not know exactly what happened, I believe more information is required.

The Ross Volunteers regularly meet and run through the campus in organized groups. They chant in unison as they run, carrying decommissioned guns, and are very loud. Also, they always end their meetings in front of the Sul Ross statue on campus, where the peace vigil was held. There is usually a brief speech, reminding them of their duties as members of the honor guard. This is a regular occurence that most people on campus would know.

In this instance, peace protesters where there at the same time as the Ross Volunteers. The peace protesters should have known the Ross Volunteers would be loud; they are always loud. The peace protesters should have known about the speech; it always occurs. The peace protesters should have known the guards would be there at that time; it is a very regular occurence.

The accusations I have seen is that a decommissioned gun was pointed at the protesters after the honor guard meeting broke, the honor guard "glared" at the vigil, and the final speech at the end talked about the "people over there," a reference to the peace protesters.

If a gun was pointed at the protesters, the individuals responsible should be punished. But "glaring" seems a bit subjective and to require a group to censor an unoffensive reference to other people seems a bit ridiculous.

I was not a member of the Corps of Cadets and I was not close to any members but I knew about the Ross Volunteers' practices. If the peace protesters felt their vigil would be disturbed by the Corps' exercises, they could have picked another time to hold their meeting.


I DON'T MIND ADVERTISING, but this seems to be going too far:
A creative marketing agency, best known for projecting an image of the television presenter Gail Porter on to the Houses of Parliament, has embarked on an initiative to turn students' foreheads into billboards.

The agency, Cunning Stunts, is offering students up to £88.20 a week to wear a corporate logo on their head for a minimum of three hours each day. The brand or product message will be attached by a vegetable dye transfer and the students will be paid to leave the logos untouched.
I hope it's a hoax, but I'm afraid it probably isn't . . . .

UPDATE: The Canine Ladies have an idea for improving on this business plan. I assume they're suggesting advertising for the clothing on top of the part of the body they suggest, rather than for the skin itself.

Sunday, February 16, 2003


LEAHY ON FILIBUSTERS: A How Appealing reader dug up Senator Leahy's position on Senate filibusters of judicial candidates, circa 1998:
"I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998).


ESTRADA TOO LIBERAL? Columnist Robert Novak reports (third item) that several anti-abortion groups have failed to mobilize support for the Estrada nomination because they have no assurance that he is sufficiently anti-Roe.


60 MINUTES FAILS TO FACT CHECK: Tonight CBS' "60 Minutes" ran a segment on acclaimed documentary film producer Michael Moore, whose "Bowling for Columbine" has been nominated for an Oscar. The program noted that Moore has critics, but failed to mention that some question whether Moore's film "documents" the truth. Indeed, the program featured the infamous bank gun-giveaway -- without mentioning it was staged, as reported in Forbes. Moore's even inspired a full-time fact checker.


AS SLOW AS POSSIBLE The late avant-garde composer John Cage is in the news again. You might remember the story from a few months ago, when the Cage estate apparently sued Michael Batt, a British musician, for including a single track on his new CD consisting of complete silence; the Cage-ites claimed this infringed Cage's copyright in his composition 4'33, which was itself just 4 minutes and 33 seconds of silence. [As Dave Barry would say: I am not making this up; reports later had it that Batt paid the Cage estate a "six-figure sum" to settle the claims, though I always suspected that was a little avant-garde joking around -- unless you count the two figures to the right of the decimal point, there's no way that this claim could be worth 6 figures, . . . ]. Anyway, now comes word that musicians in the German town of Halberstadt have taken another Cage composition (entitled "As Slow As Possible") and have begun performing it at a tempo under which it will last for 639 years. The first three notes, now being performed, will take a year and a half. This will make it, you will not be surprised to hear, the longest musical performance in history (uless you count the "music of the spheres").


FEDERAL GOVERNMENT'S AMICUS BRIEF IN THE U.N. DEMONSTRATION CASE? A Syracuse Post-Standard editorial reports that the Administration filed an amicus brief supporting New York's decision to deny anti-war demonstrators a permit to parade near the U.N. I'm not sure whether the report is accurate or not -- my quick LEXIS search uncovered no news stories that say this. I'd be happy to hear any confirmation or denial. (UPDATE: The district court decision is now on WESTLAW, and it does confirm that the government did file a brief; I've asked my library to get it for me.)

     But if the report is true, it's hardly surprising, unusual, or (as an e-mail from one reader suggested) outrageous. Naturally, if the Administration took the same view that I faulted the New York Sun for taking (which is that antiwar demonstrations should be suppressed because their message indirectly helps our enemies), I would similarly fault the Administration likewise; but the editorial doesn't suggest this, and it seems quite unlikely.

     Rather, I suspect that the Administration's justification is the same one that press accounts attribute to the trial judge (a Clinton appointee, incidentally) who upheld the denial, and to the three-judge Second Circuit panel that upheld the trial judge: Large demonstrations outside the U.N., on whatever subject and expressing whatever viewpoint, pose special security problems that justify a content-neutral requirement that demonstrations be held elsewhere. As I mentioned several days ago, such a content-neutral restriction may well be quite permissible, as the four judges who have considered it have held. So the Administration's urging the same position (if that's what it in fact did -- I know of no pointers to an online version of the Administration's brief, if one was indeed filed) is not terribly noteworthy, and not at all outrageous.

     Ah, some might ask, but why is the Administration getting involved at all? Well, the standards for filing an amicus brief aren't very demanding -- one has to have some interest in the case, and something to say that might possibly help the court. That's the basis on which many organizations file amicus briefs, and on which the federal government does, too. The federal government files briefs in lots of cases that involve state government action but a federal constitutional claim. For instance, the Clinton administration filed an amicus brief in Hill v. Colorado to urge the Court to uphold state-law regulations of speech outside abortion clinics; but that's just one of many examples.

     What's more, there's a pretty clear reason why the federal government might want to get involved here: The justification for the restriction -- preventing danger to the U.N. building and its occupants -- implicates the federal government's security interests as much as it implicates the City's security interests. Just the sort of case where the federal government's input might be helpful, and certainly entirely proper.

     One correspondent suggests that there's something improper or at least unwise about the Administration filing a brief supporting even a content-neutral restriction, when the speech being restricted in this case is criticial of the Administration. I don't think that's right. The Administration has no obligation to ignore its interest in protecting the U.N. building (and its duty to protect the building) just because of the protesters' viewpoints. Would the Clinton Administration have been wrong in supporting the state in Hill v. Colorado if the anti-abortion picketers criticized not just abortion providers but also Clinton's own pro-choice stance? Of course not -- you can defend a content-neutral law regardless of the content of what the speakers are trying to say. Likewise here.

     Finally, the correspondent asks, "If NYC had blocked a pro-war rally, how likely is it that Bush would have intervened on the City's side of the argument?" Well, if someone wanted to have tens of thousands of pro-war (and quite likely anti-U.N.) protesters in front of the U.N., it seems to me eminently plausible that the Administration would have worried about the risk that someone might use the demonstration as an opportunity to do some damage. I have no reason to doubt that the Administration takes quite seriously its duty -- both a morally and a pragmatically justified duty -- to keep the U.N. safe. Naturally, it's impossible to come up with a perfect analogy, but if one wants a somewhat similar one, consider Boos v. Barry (1986), in which the Reagan Administration argued as amicus curiae in favor of a content-based law that barred hostile demonstrations outside foreign embassies (which was justified by a government interest in preventing insult, as well as injury, to foreign governments); the demonstrators there were planning to carry hostile signs outside the embassies of the Soviet Union and the then-Sandinista Nicaragua. I suspect that Administrations generally care much more about avoiding awkward international incidents -- and especially violence in the U.S. against international or foreign government organizations -- than about the specific message being sent by one particular demonstration. Of course, one can always make hypotheses about the Administration's possibly sinister motivations. But here I see no real evidence for such hypotheses.


A FUNNY SORT OF LITIGATION STRATEGY: So I read in today's L.A. Times that the California Attorney General's office is trying to disqualify my former boss, Judge Alex Kozinski -- who generally supports the death penalty, and has often engaged in public debates on the pro-death-penalty side -- from sitting on death penalty cases. Why? It turns out that the Judge had corresponded with Michael Hunter, a convicted murderer and an award-winning prison writer (whose case had never even reached, and seemed unlikely to ever reach, the Ninth Circuit). I'm hoping to write an op-ed on the subject, but in the meantime here are three basic points:
  1. There's nothing remotely unethical about what the Judge did, so the Attorney General's claim is simply legally unfounded. They of course make the old "appearance of impropriety" claim, but the question is whether reasonable people would see the Judge's behavior as somehow showing some prejudice in favor of capital murder defendants generally -- and they wouldn't. (Here's a thought experiment, if you're not persuaded: A judge talks to and meets with the widow of a murder victim. Should the judge be disqualified from hearing all murder cases?)

  2. If the Judge is indeed recused from death penalty cases, this will make the average Ninth Circuit death penalty case more anti-death-penalty, since Kozinski is on the right of the Ninth Circuit on this. What possible benefit would the California Attorney General derive from this?

  3. All this might still leave some people with the question: Why would the Judge be interested in meeting with this scum? Well, Hunter is a very bad man, and the Judge (as the Times article makes clear) agrees. But Hunter is also apparently quite a gifted writer who has some highly unusual experiences, and who therefore seems to have something interesting and unique to say about life on death row, and for that matter about being tried for one's life. Someone who is as intellectually curious and voracious as Kozinski might well think he has something useful to learn from talking to Hunter. As the judge told the Times, "I can go meet a businessman any time . . . . Meeting someone who has spent time on death row seemed like something I shouldn't pass up." I can certainly understand why some people might not want to have anything at all to do with people like Hunter; but others might take the view that one can learn things even from people who have done something horrible, and who are being justly punished for it. And there's surely nothing unethical about Kozinski trying to get what knowledge he can even from nasty people.


EXCITEMENT OF THE DAY: The NYT reviews (and thereby informs me of the existence of) a new Bernard Bailyn volume, To Begin the World Anew.

Well, I'm excited.


CLONING -- CORRECTION: Troy Loney wrote to correct my comment that Dolly, the world's most famous sheep whose death a few days ago was the occasion for my posting, was the "first cloned mammal." As noted in this story, what made Dolly special was that she was the first clone created from an adult mammal cell; other cloned animals had in fact been produced earlier from cells taken from mammalian embryos.

This page is powered by Blogger.