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Friday, March 07, 2003


Today I saw a photo on the front page of a newspaper. It was of an American soldier in Kuwait, standing guard near an M109A6 155mm self-propelled howitzer. The M109A6 is better known as "Paladin." That got me thinking. Until very recently the Army planned to field a replacement for Paladin, named "Crusader." Yikes!

Imagine the mileage radical Islamist rabble-rousers could've gotten out of that! Or maybe not. But, still . . . yikes.


EQUAL OPPORTUNITY CYNICISM: Reader Dan Carter suggests an important point -- if one is looking for ulterior motives for Bush's stand on the war, why not look as assiduously for the anti-war Democrats' ulterior motives? If they persuade Bush to back down, he looks weak and indecisive, and they have a better chance of winning in 2004. Who knows what other theories we can come up with, if we just assume the worst of our enemies?

     On the other hand -- and I realize that this is a shocking suggestion -- maybe the anti-war Democrats sincerely think that the war would be a bad idea. Maybe Bush likewise honestly believes that the war is a good idea. Maybe to the extent they're thinking of their political futures, they think that if their proposals prove to be good for the country (at least as on a matter of such importance), the voters will suitably reward them.

     Oh, I know, I know, I'm so foolishly naive. Would it help if I called this a conspiracy theory? That there's a conspiracy (known as, but keep this quiet, the Republican Party) that's conspiring to get elected by promoting policies that they think are good, and there's an equally shadowy counterconspiracy that's adopting a similar strategy but with a different set of policies?

     Or maybe, since we actually don't really know what goes on in people's heads, we might save accusations of ulterior motives for those times that we actually have substantial evidence, rather than just generic speculation of the they're-the-other-side-so-they're-evil variety?


VIDEOTAPE: So why not take a friend with a videocamera along when one is going to counterprotest at an anti-war rally? That way if people do try to abuse you, you'll have the evidence, which you can bring, if you'd like, to the police, the university administration, the general media, the student newspaper (the main one or an alternative one), or at least the blogs. Not an original idea, I'm sure, but I think more people ought to do it. (Yes, I know that some goons could try to take or break the videocamera itself; that's always a risk.)

     Of course, anti-war people who fear this sort of abuse in other contexts should do the same -- anyone who attacks peaceful protesters should be punished.


PHOTO OF "PEACE" PROTESTER TRYING TO TAKE PRO-WAR SIGN FROM MY UCLA CORRESPONDENT: Apparently it made the AP wire -- always good to have supporting evidence. Here's the original account of the incident.

UPDATE: My correspondent writes "Nifty . . . . AP is even bigger than Instapundit!" Yes, that's right, there are still a few outlets bigger than InstaPundit -- for now . . . .


A REAL WARBLOG: OK, I know that it might be a complete hoax -- on the Internet, no-one knows you're a dogface -- but it seems to really be written by a reservist who's now Over There. I know there are plenty of such sites, but this is the one I stumbled across, and it seems much worth a look, though at this point more for its perspective on military life than on the war.


WORDS OF WISDOM FROM MY MOTHER: "Other people's children always grow up more quickly."


"ETHICAL CULTURE" AND TAX EXEMPTION FOR RELIGIOUS GROUPS: Many states exempt religious groups from various taxes, though generally alongside other organizations, such as educational and public service groups. The Texas Comptroller's office has interpreted this exemption as applying only to groups that believe in a "God, Gods, or higher power," and thus denied the exemption to the Ethical Society, which tries to spread the Ethical Culture belief system.

     The Texas Court of Appeals just held (yesterday) that this limitation to God/Gods/higher-power-based groups violates the Establishment Clause, and that Ethical Culture does qualify as a religion. For the pretty vague (but perhaps inevitably so) test that the court used, see the opinion, Strayhorn v. Ethical Society of Austin.


WHEN CONSPIRACY THEORIES TAKE YOU TOO FAR: In response to my post yesterday criticizing Kinsley's "Bush's ulterior motive is to enrich his oil company buddies" claim, I got the following e-mail:
However . . . more money for his cronies translates into more campaign contributions, which translates into more advertising time, which translates into more votes. Ergo, this is a very good way for Bush to help his reelection prospects. Or didn't you notice that the Republicans massively outspent the Democrats last time out (like always, due to their greater corporate backing)? Please.
So let me see if I understand the reasoning here:
  1. Oil prices increase, the economy is hurt, Bush alienates millions of voters.

  2. Bush also presumably alienates those businesses who are hurt by higher oil prices and the economic slowdown that it causes. (I don't have the numbers handy, but my sense is that the oil business provides a small fraction of the total money the Republicans spend on Presidential races.)

  3. Bush also gets some extra campaign contributions indirectly flowing from oil businessmen, though given that Republicans have "greater corporate backing" and the oil businessmen are supposedly Bush's "cronies," they'd presumably have backed him quite substantially anyway.
The theory, then, is that whatever mild increase Bush gets in contributions from oil people outweighs the decrease in contributions from other businessmen who are hurt by the high oil prices and -- more importantly -- outweighs the lost millions of actual votes caused by the high gas prices and the bad economy. Pardon me if I don't quite buy that.

     It's great to be a realist, which sometimes means being a cynic, but it's a mistake when one's cynicism leads one into unreality. Elections are about votes. Campaign contributions help buy advertising which can help bring in votes -- but that's a highly unreliable process, which is why many candidates lose even though they outspend their rivals. A bad economy means huge vote losses for the incumbent; no marginal increase (if there would be one) in oil business campaign contributions would be enough to counteract that.

UPDATE: My friend Gary Leff found some helpful figures. Bush raised $125M in private money in 2000, of which a titch under $2M came from oil & gas sources. Doubtless this is a highly rough count -- for instance, perhaps some of it came from related businesses, or who knows what. Still, say this undercounts things by a factor of 3; we'd still find that less than 5% of Bush's campaign contributions came from oil & gas sources. So to increase campaign contributions from these sources by some unknown amount (remember, presumably most of them would keep backing him in 2004 in any event), he'd be willing to alienate the businesses that dislike expensive oil, and millions of voters as well? As my correspondent wrote, "Please."


COLLEGE REPUDIATES COERCION OF STUDENT ANTI-WAR LETTERS: The Foundation for Individual Rights in Education has a press release on this; naturally, one ought to be skeptical of press releases, but I've found FIRE to be quite reliable in the past -- and the college's own account agrees with FIRE's summary:
A Citrus College professor had compelled undergraduate students to write anti-war letters to President George W. Bush [if they wanted to get extra credit] -- penalizing the grades of students who dissented or refused to send the letters. The Citrus College administration, working closely with FIRE, resolved the situation. . . .

FIRE wrote to Citrus College President Louis Zellers on March 4 to alert him that FIRE had been contacted by students in Professor Rosalyn Kahn’s Speech 106 class, a required course at the public college. FIRE received compelling documentation that Kahn had required students, to achieve full credit, to write letters to President George W. Bush “demanding” that he not go to war with Iraq. Several students requested that they be allowed to complete the assignment by expressing their own opinions, which would mean, in some cases, writing letters in support of President Bush’s foreign policy. Kahn told the students that letters supporting the president would not be acceptable and would not receive credit. Several students refused to turn in the assignment and were penalized.

One week later, Kahn again required students to write letters with a specific political viewpoint, this time to California State Senator Jack Scott. Professor Kahn collected the letters from the class and personally delivered them to Scott. The Senator’s office told FIRE that the letters were not solicited. . . .


THE PLEDGE AND JURISDICTION-STRIPPING: As Jacob pointed out yesterday, Tom DeLay threatened that:
Congress could remove federal courts' jurisdiction to rule on the Pledge of Allegiance if the Supreme Court doesn't overturn an appeals court decision that bars children from reciting the Pledge in school.
Congress probably does have the power to strip the Supreme Court of jurisdiction over Pledge cases, under art. III, sec. 2, cl. 2; and, I take it, it may strip lower federal courts of jurisdiction because their jurisdiction (even their existence) are defined by Congress. (There's some controversy about this, but my sense is that Congress may indeed act this way.)

     But just how useful would that be? If the Supreme Court affirms the Ninth Circuit decision (highly unlikely), that decision will be the law of the land. Even if federal courts lose jurisdiction over objections to the Pledge, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). Most state courts, I think, would feel obligated to follow the Supreme Court's caselaw even if they think it's wrong and if there's no possibility of appeal to the Supreme Court. Perhaps a few courts will buck this traditional understanding -- but that just means that teachers could read the "under God" version in some states but not in others. How good would that be?

     If the Court holds that "under God" is impermissible, and the Congressmen are really upset by that, then they have a simple, traditional solution: Propose an amendment to the states. There's a decent chance that this would happen, and that that the amendment would be ratified. But procedural shenanigans aren't the right way to do this, and they aren't the effective way, either.


THE WAY YOU HAUNT MY DREAMS: Dreamt last night that I was still in law school, and had just gotten a couple of bad grades. Oh no, I thought -- what will this do to my clerkship prospects? To my teaching ambitions? Then I woke up.

     It's been nearly 11 years since I graduated, and I still get a dream like that. Current (or prospective) law students, beware.


CLINTON/DOLE: What I found the most interesting in the news that Clinton and Dole will be pseudo-debating on a regular 60 Minutes segment is that a) there used to be such a segment, back in the 70s, and b) that it was the source material for the classic "Jane, you ignorant slut" bits between Dan Akroyd and Jane Curtin on SNL. SInce I was 8 when the Point-Counterpoint feature was last seen on 60 Minutes, I'd never heard of it. The Akroyd-Curtin routine is, I think, pretty fixed in the public consciousness; the target of its satire isn't, or wasn't, at least for young'uns. This is in part because SNL is shown in endless reruns, whereas 60 Minutes isn't (AFAIK). But only in part.


SOMETHING PUZZLING: In almost every criticism I've read of the idea of federalism for Iraq, both in e-mails and in blogspace, some reference has been made to the failure of the postwar Lebanese constitution as evidence that federalism doesn't work in ethnically-divided Middle Eastern states.

One problem: Lebanon was never a federal state.

It was what's referred to as a consociational state, with complicated power-sharing and quota arrangements among the confessional communities in the central government in Beirut. (Those arrangements were static and did not change over time as the demography of the state changes, which was one of the precipitating factors of the civil war.) The presidency was guaranteed to one group, the premiership to another; seats in Parliament were parcelled out to communities large and small (from Sunni to Druze) on the basis of a decades-old population formula. But it was (and remains) centrally governed; there was no regional self-government.

Lebanon did, and does, have a system that's sometimes, misleadingly, referred to as "personal federalism." Marriage and family law is governed by separate codes for each religious group, with separate in-group courts and so on. (This is the same system as in the old Ottoman Empire and as in Israel. India operates under a very similar but not identical system, in which a single judicial system applies each of the separate "personal law" codes, and in which an aggressively-liberalized version of Hindu personal law operates as the general law, with some, very limited, ability for members of minority religions to opt out of their religious codes and into this reformed-Hindu general law. There is no traditional-Hindu code of personal law available. For more on the differences between the Indian system and that of the states in the formerly Ottoman areas, see chapter 6 of my The Multiculturalism of Fear; or Gary Jacobsohn's brand new Wheel of Law: India's Secularism in Comparative Constitutional Perspective.) But this is a system of, in effect, clerical rule over family law, not of regional or regional-ethnic self-government.

Indeed, Lebanon's politics has always been characterized by the very threat of winner-take-all politics at the center that federalism is meant to stave off. It was, badly, solved by dividing up the center's goodies in a guaranteed, non-majoritarian way; there was never an attempt to lower the stakes of politics in the capital and to disperse politics, elections, and so on to lower levels of government.

Federal, quasifederal, and confederal constitutions aren't perfect by any means, and there are plenty of bad precedents to point to in constructing an argument against them. The pre-civil-war Nigerian constitution and the Yugoslav constitution are Exhibits A and B-- both rested on the model of one ethnic group, one province, which I've criticized in favor of a system of several provinces per group. (On the other hand, India does surprisingly well with its federation, many of the state boundaries of which were drawn to give a language group a, single, state.) But Lebanon isn't such a precedent, and I'm even willing to argue that it's a case for the federalists, since it rested on power-sharing at the center.


CONGRESSMAN CALLS BLOGGER: Howard Coble called Eric Muller about the Japanese internment -- Muller has a brief account of the conversation. No, really.


MEGAN'S LAW: Here's my L.A. Times op-ed from this morning:
Forgive and Forget Sex Offenders? Not a Chance
By Eugene Volokh; Eugene Volokh is a professor at the UCLA School of Law.

Megan's laws, the Supreme Court held Wednesday, are constitutional: The government may require sex offenders to register with the police and may publicize their names and addresses on the Internet. The justices got this right.

The best predictor of someone's future behavior is past behavior. It isn't a perfect predictor; sometimes people do change their ways. But we often have to make decisions based on imperfect information. A state is entitled to conclude that we are better off knowing which of our neighbors are sex offenders, so we can decide for ourselves how cautious to be around them.

Some disagree, saying that the criminals have "paid their debts to society." I've never quite understood this metaphor. Raping someone isn't the same as borrowing money; a debt can be paid, but a sex crime can't be undone.

However, say we accept the metaphor. Someone takes your money; after many years of litigation, he finally pays his debt. Do you just forget about this? Do you treat him as if he'd never injured you? Probably not. Instead, you'll remember what he did and be careful around him in the future.

That's the premise behind Megan's laws. If someone commits a crime, we don't forget what he did even once he's released. In most states, convicted felons may not own guns. They may not vote. They may be barred from certain jobs. And now some convicts must also register and have their crimes (matters of public record) publicized. That's perfectly constitutional.

The same goes for the argument that people deserve "a second chance." A second chance means a second chance to live right, but it necessarily also involves a second chance to rape more people.

Sometimes we might feel that a person really should be released, despite the risk to others. But there's no requirement that the law pull the wool over the public's eyes and hide the person's potential dangerousness.

One lower court decision, which the U.S. Supreme Court reversed, said it's wrong to apply Megan's laws to people who supposedly have been rehabilitated and don't pose a threat for the future. But psychiatrists can't tell for sure who's dangerous and who's not. The question is: May the state Legislature leave it to each of us to decide whether to risk dealing with a convicted sex offender, or must it let psychiatrists decide whether this information should remain hidden? The Supreme Court correctly held that states may leave the choice to us.

The toughest question that the court faced was whether Megan's laws could be applied retroactively to people who committed their crimes before the notification and registration laws were passed.

The Constitution doesn't have a "you may not publicize people's past crimes" clause, but it does have an ex post facto clause, which bars the government from retroactively imposing new criminal punishments. Historically, courts have found that lengthened prison or probation terms couldn't be applied retroactively, but other constraints -- such as employment restrictions, gun possession restrictions and so on -- could be.

The theory is that these constraints are meant to protect society from future misconduct and not to punish past misconduct. This is an imperfect distinction, since many punishments (including imprisonment) are aimed both at punishing past behavior and protecting society in the future. Still, some such distinction is probably necessary, and the precedents certainly support it. The court was probably right to say that registration and notification rules fall on the side of civil restraints, which can be imposed retroactively, rather than criminal punishment, which can't be.

There are plausible policy arguments against Megan's laws. For instance, if community notification makes some released felons unemployable, it might increase the risk that they'll return to a life of crime and maybe even commit more sex crimes because they'll feel that they have little to lose. Or it might make criminals move to more anonymous surroundings, such as bigger cities or other states, thus simply shuffling sex criminals from one place to another. Also, since many sex criminals haven't yet been caught, people might be better off being cautious everywhere, rather than focusing too much on those neighbors who have specific sex offense convictions. And some Megan's laws might just cover too many crimes or might otherwise be more onerous than necessary.

But these are judgment calls that each state is entitled to make on its own. The Constitution does not mandate lenience, forgiveness or forgetfulness.

Thursday, March 06, 2003


BUSH AND OIL: Michael Kinsley also reasons that the runup to war increases oil prices, and thus helps Bush's friends in the domestic oil extraction business -- an "ulterior motive" behind Bush's actions:
This oil costs something to extract, but that something is less than $25 [per barrel], or no one would have been extracting it before the war buildup started. So, the extra $15 is a gift from Saddam Hussein and George W. Bush.

I don't believe that President Bush is prosecuting a war against Iraq in order to enrich, or more accurately further enrich, his oil-patch cronies. But we all are happier when we can make our friends happy. All this happiness among his buddies must at least make a man like Bush, who is not plagued by self-doubt or second thoughts in any event, even more confident as he marches forward.
Interesting theory! But here's what's completely omitted from this analysis: Whether or not high oil prices are good for some of Bush's buddies, they're bad for Bush. Voters don't like high oil prices. High oil prices aren't good for the economy, and voters don't like economic trouble. The uncertainty caused by the runup to war seems to be bad for the economy, and voters don't like economic trouble. Bush knows very well what happens to Presidents who in their first term preside over bad economic times, and whose policies can be blamed for fostering these bad economic times.

     So let's see if I understand this correctly: Bush is more concerned about his "cronies" in the oil business making some extra money than about his own re-election. Uh-huh.


NORTH KOREA AND IRAQ: Michael Kinsley in Slate asks a question that I've often heard asked
Why are nuclear weapons in Iraq worth a war but not nuclear weapons in North Korea?
The Administration's "failure to answer [this] question," he says, is one of the things that "is central to [most skeptics'] doubts."

     OK, is this a trick question? Seems to me this chart might help:
IraqNorth Korea
Might have nuclear weapons one dayProbably now has nuclear weapons, which it might use if we attack
If attacked, might shoot some Scuds at Israel, which is quite a distance awayIf attacked, might heavily bombard and otherwise attack Seoul, which is a city of over 10 million people, 30 miles from the North Korean border
Why on earth would one think that Iraq and North Korea should somehow be treated the same way?

     Yes, I can understand the risks of attacking Iraq -- maybe Iraq will, for instance, attack either our troops or the U.S. itself with biological and chemical weapon. These are real risks. But the risks of attacking North Korea are much greater. Who knows; maybe we should be attacking North Korea, too, or maybe we should be doing something else. There might well be lots of sound criticisms of the Bush Administration's policies with regard to North Korea.

     But the fact that the Administration is more willing to attack a less dangerous foe than a more dangerous foe is not a sound criticism.


A NEW BLOG TO WATCH: My friend and GW colleague Amitai Etzioni has started blogging; you can access his blog here. He even gives Eugene some credit for inspiring him to start blogging. Better yet, Amitai's blog already has its first mention on Instapundit.


ANOTHER STORY FROM THE ANTI-WAR WALKOUT AT UCLA: This is from David Hackett, a former student of mine:
I was also at the Pro-War counter-protest at UCLA yesterday. I thought our efforts to counter the anti-war rationale went well, although I was surprised by the behavior of some of the anti-war students. After a march around campus which followed the anti-war rally, our large sign with the message "Saddam Loves Walk-Outs" was ripped to shreds by these supposedly peaceful students. I was threatened with physical violence at different points by certain protesters, and other pro-war students were, as well.

The UC police were a virtually non-existent entity, leaving security for the event up to the anti-war organizers themselves. Their force was made up of anti-war students who had little interest in protecting those with opposing viewpoints, and there were a few times where fights could have broken out. The UCPD's response to the rally seemed to be one of acquiescence about First Amendment protections.

Protestors' slogans included tired old Vietnam-era retreads, including "Hey, hey, ho, ho, Bush's War has got to go". Perhaps most perplexing was the chant of "Education not devastation!" How does walking out of class further education, and how does implicit support for Saddam further the end of devastation.

"Well, at least it rhymes," said Larry Elder, when I called in to his show last night. . . .


MEGAN'S LAW: I should have an op-ed on the Court's Megan's Law decisions in tomorrow morning's L.A. Times.


CHILD ONLINE PROTECTION ACT: The U.S. Court of Appeals for the Third Circuit just struck down the Child Online Protection Act (the heir of the Communications Decency Act) yet again. As you may recall, the court struck COPA down on the grounds that "contemporary community standards" isn't a proper test in cyberspace; the Supreme Court reversed and sent the case back down for further consideration; now the Third Circuit has held that the law violates the First Amendment for other reasons.

     I've read the decision, and think that it makes some good points and some not so good ones; unfortunately, I probably won't be able to blog about it for a while. But I can confidently make a prediction: The Supreme Court will agree to hear the case again. No prediction as to how the Court will come out.


TRANSPORTATION, EXILE, AND INTELLECTUALS: In this week's Chronicle there's an extremely interesting article (available to subscribers only, unfortunately) by Michael Schenefelt of NYU (not merely of New York) called "Why Study the Greeks? Check the Map." A few paragraphs will give you the gist:
If we think of human culture as a joint product of nature and nurture, then there can be only two explanations for why the classical Greeks turned out to be so intellectually inventive....In the case of the Greeks, the geographical explanation is simple: Their mountains and islands divided them into hundreds of independent city-states, yet the exceptional smoothness of the Mediterranean sea connected them by an easy method of transportation. As a consequence, it was especially easy in classical Greece for writers and talkers to escape political control, and they were generally freer to discuss a broad range of ideas. If you got into trouble with the authorities in one community, you simply boarded a ship and floated away, and in half a day you were likely to reach the territory of a rival state, where the enemy of your enemy becomes your friend. ...

By contrast, in a large territorial empire such as Egypt or imperial China, the ruler's reach was long, and so an intellectual with controversial doctrines was in constant danger of arrest. Indeed, it's for just this reason that the great age of classical Chinese literature came before the unification of China -- during the waning years of the Chou Dynasty in the sixth century B.C., down to the end of the Warring States Period in the third century -- when many of China's greatest intellectuals made a practice of traveling from state to state.

More generally, when we look out upon the vast collection of the world's literature, we often suppose that the history of ideas ought to be centered on the great empires of the past, on mighty kingdoms and opulent palaces whose staggering power is still dimly evident in a pile of ruins. But on the whole, this is a mistake. Instead, most intellectual and literary history is actually focused on small and divided places, especially marketplaces, where equals crowd upon equals and where new creeds are hard to suppress. Intellectual innovation typically comes from a collision of ideas, but this in turn is usually the result of colliding societies tied by trade. ...

Transportation is the essence of this mechanism of escape, and on the whole it depends on a physical geography that generates independent communities while simultaneously allowing them to interact. Indeed, the history of the world's economic development, along with much political and scientific development, is in many ways a history of transportation. The first person to see that fact was Adam Smith.
Read the whole thing, if you're able.


PLEDGE CON'T: Tom DeLay has dusted off that old favorite move of Congressional grandstanders against the courts: threatening to strip appellate jurisdiction. (In the undergrad con law course I TA'd at Princeton, we used this little-used but often-threatened-to-be-used power for our moot court; it provided some neat twists.) Be forewarned: this Washington Times article gets some facts wrong (the Ninth Circuit ruling doesn't "bar children from reciting the Pledge", for example).


BREAKDOWN OF CIVIL ORDER: Just to show that it's not just people named Eugene who entertain these unpleasant thoughts, reader John Carney e-mails the following:
Part of the problem with critics of your proposition regarding the possibility of a break-down of civil order is that they seem to be fixed on "the end of civilization as we know it" scenarios -- large-scale, complete and perhaps permanent dissolutions of the civil order. But nothing like this is required by your argument.

Localized, partial and temporary disorder can create very dangerous situations for the people involved, situations in which the danger posed might plausibly be decreased by having a functioning fire-arm.

Take the 1977 New York blackout, for example. The now infamous power failure led to rioting and widespread looting. More than 1,000 fires were reportedly set. A contemporary New York Post account describes New York as "transformed into a series of seething battlefields." It began with failure of one service (the police, firefighters, hospitals, continued to function even if hampered by the lack of power), was confined to one area, and lasted only a brief time. But if you were where the trouble was, it was potentially very dangerous.

In a blackout caused by an e-bomb, its not hard to imagine that not having one's handgun rendered inoperative might be desirable.

Of course, all your other caveats still apply. But I can't see how your concerns about e-bombs and smart-guns can be completely discounted.


POSNER ON PATENTS CON'T: When the decision came down, a friend of mine who is very knowledgeable about the underlying substantive questions wrote me to say
It is, in a word, fantastic. ...It is just what a judge should do. It is interesting. It is accessible. It follows through the entire logic chain. It even considers the alternatives (if I'm wrong about A, then what happens). He takes a difficult and complicated question and fully answers it.

And, to top it off, it is somewhat courageous, in that some of what he does hasn't been done before. He has no fear that he's wrong -- if the question is open, he trusts his instincts. I really can't say enough good things about it, so I'm sending it to you, even though I'm not sure you find patent law and questions concerning the manufacturing of polymorphs particularly interesting.
He's right; I don't. But it's always nice to hear praise for one's colleagues, and I'll sit down and read the whole thing at some point.


Here at Wisconsin-Madison, we actually had a fair-sized group for our anti-anti-war protest yesterday (which I say because I believe it's distinct, and qualitatively different from, a pro-war rally), with our signs saying, "11 September: Never Forget, Never Again; Support the War", "Support our Troops, Support the President, Support the War", and "Support our President...Not Theirs".

The anti-anti-war protest wasn't necessary, though, as the anti-war organizers whom we had here yesterday alienated a good portion of their listenership straightaway. Instead of focusing on what I believe are legitimate arguments against the war (I recognize that the proper arguments against the war can't be made into good soundbites, but longer speeches, as we had here, can focus on legitimate foreign policy and morality concerns), speakers yesterday intimated firstly that the war against Iraq was a ploy by our president to rid the world of Arabs, as he cares only for Caucasians, and, further, that the war was an additional ploy by which to rid the nation of African-Americans, who presumably would be more likely per capita to die in a war (which the statistics no longer bare out), or at the very least to keep them out of higher education, inasmuch as, being statistically poorer than Caucasians, they must enlist in the army after high school.

The predominant chant was, "Hey! Hey! Ho! Ho! This racist war has got to go!", after which probably one-third to one-half of the crowd was lost. Groups such as "Veterans against the War", whom I'm sure proffer up legitimate arguments, were ostensibly turned off as well and left forthwith.
Let this be a lesson, incidentally, for both sides.


POSNER ON PATENTS: I just read Judge Posner's opinion in a recent patent case in the Northern District of Illinois, which he presided over as a trial judge. It's quite a remarkable opinion, which you can access here (thanks to Howard for the link). It reminds me a lot of Henry Friendly's classic opinion in Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y. 1960), also known as the "what is chicken?" case. And that's a very good thing.


THE ESTRADA COMPROMISE, CON'T. Yesterday I suggested a compromise to end the filibuster over Miguel Estrada's nomination to the DC Circuit: the Republicans give up on Estrada and the Democrats agree to prompt floor votes on all other pending nominations. The proposal generated some comment, public and private, none of it enthusiastic. Howard Bashman, an Estrada supporter, called it unacceptable; Rick Hasen said he saw no reason for Democrats to go along with it; others wrote it in to say that it makes no sense from the Republicans' standpoint; still others -- Democrats -- wrote in to say that, like Rick, they couldn't see why this made sense for them. What many (not all) of the responses had in common was an indifference to the impulse to compromise at all. Each side insists that it's winning, and is focused, not without smugness in some cases, on how bad the whole mess is going to make the other side look in November 2004 or sooner. A couple of readers wrote to say in particular that they saw no reason why the filibuster shouldn't continue once the war starts. After all, does the war really call upon the Senate to do anything?.

     Perhaps this reflects a failure of pragmatism on my part, but I would find the spectacle of a continued filibuster once the war starts -- and over a lower court judicial nomination! -- almost inconceivably asinine and an embarrassment to the Senate. To those who don't perceive this I suppose I have little enough I can say; in a sense it's a matter of taste. But meanwhile some members of both parties do seem to agree with me -- it's just that they invariably blame the filibuster on the bullheadedness, lack of integrity, etc., of their opponents; they therefore think a continuation of it will reflect worse on their opponents than it does on themselves and so are content to see it continue even during a war. My hope is that as time goes on and the war becomes imminent (assuming it does), each side's passion for imposing costs on the other side will yield to a joint desire not to impose additional costs on the institution and the country, and thus a willingness to settle for a result both sides regard as a significant disappointment. But I suppose this is unlikely as long as both sides remain in the grip of self-serving fantasies about how much this is going to help them a year and a half from now.

     Incidentally, one reader said he would prefer a compromise in which Estrada is confirmed and others, such as Owen and Pickering, are withdrawn. For my part I would be indifferent between this proposal and the one I offered, though I think this one would be harder to arrange politically. My argument here is not about Estrada in particular; it would be the same no matter who the nominee was. Make a deal, I say.


RISK OF CIVIL DISORDER: Reader Gene Hoffman, of The Eugene Conspiracy, writes:
Having lived through hurricane Hugo when it hit Charlotte, NC, [I think] people who don't expect civil breakdown are fooling themselves.

Myself and some of my friends do a bit of disaster planning as we live downwind of San Francisco, and about 2 miles from the San Andreas fault. For any Californian to think that civil functions will always be there is to completely ignore geological science. It is not hard at all to imagine a scenario where the Bay Area is without power, telephone, water, and gas for weeks. I've prepared somewhat for that, and I don't care to "share" that with folks unless I choose to. After a major quake I will be wearing my pistol at all times and my wife will have access to our shotgun. I've been there before and it is important. Its awfully hard to call the police when there is no power in the phone network...

Also, as an avid power boater, I want to make a comment on "Smart Gun" technology. Boaters would benefit significantly from electronically controlled ignitions in gas and diesel engines, but they risk lives. When you are 50 miles offshore and the electronics fail you can be killed. Using the dumb engine technology means that you can fix it right there at sea without special tools. I think the life and limb risks make this analogy rather apropos.
I don't necessarily fully endorse all these suggestions -- for instance, whether one wears a pistol outside would turn on how one balances the risk of attack and of arrest, and this may vary from situation to situation -- but the point seems quite sensible.


MALL DROPPING TRESPASSING CHARGES: So ABC News reports; thanks to InstaPundit for the pointer. Makes sense to me -- few businesses want publicity like that.


THINKING ABOUT CIVIL DISORDER: Matthew Yglesias also disagrees with my concerns about the possibility that some time in our life we might live through serious civil disorder, and that we might want to plan ahead for that:
Come on...a civil war [referring to my statement that "Is it really so unthinkable that there might be a civil war -- full-scale, or local -- in the next 50 years in the U.S., as there has been in other democracies, including our own?"]? And having a personal sidearm wouldn't help you under many civil war scenarios. In our historical civil war, for example, the country split into two fairly well-defined subunits which then fought each other in a more-or-less conventional manner. And the sort of gun you'd keep in your house is hardly going to help you if someone starts rolling tanks down the street or dropping bombs on your city. Also note that for Eugene's case to make sense here we would have to be in a scenario where civil war breaks out, fighting is taking place near your house, and an electromagnetic pulse has recently occurred in your neighborhood. The odds of any of these things happening is extremely small and the odds of them all happening are downright miniscule. I would also make the classic gun control point that in case law and order really did suffer a temporary breakdown, having a well-armed populace would make that scenario more rather than less dangerous even if you personally would be better off with a weapon.
     1. It's easy to think of civil war as being limited to battles, when a sidearm won't be that helpful. But of course that's not the whole picture, is it? Civil war is one of the many scenarios I gave for when civil order will break down. Civil war, terrorist attacks, riots, and a variety of other conditions (even natural disasters) leave a trail of devastation, including devastation of the c vil order infrastructure (police response and the like). Outside the battlefield there may be looting, pillage, rape, and butchery, not just by organized units but also by lone fleeing soldiers, and by civilians who see an opportunity while the civil authorities are attending to more pressing business. Look, this stuff happens to a small extent when there are hurricanes and riots -- why wouldn't it happen to a much larger extent when the area is convulsed by more organized rebellion or warfare?

     2. Nor does it make much sense just to multiply the probabilities of civil war / rebellion / terrorism and electromagnetic pulse, as if they were independent. My original post pointed out that electromagnetic pulse bombs seem likely to become a tool of warfare. Over the decades, they, like other weapons, are likely to become cheaper and more widely available; they'll become part of the customary arsenals of rebels and terrorists, precisely because they can disrupt the existing infrastructure. One of the nasty things about organized violence is that it involves a bunch of nastiness happing at once, with different things feeding off each other. A rebellion which uses electromagnetic pulse bombs and thereby causes damage to infrastructure, which causes still more collateral damage (such as civilian plunder) -- quite possibly part of the rebels agenda -- which causes further strain on infrastructure which causes still more risk to unarmed civilians.

     3. The classic response to the classic gun control point about how we'd all be better off if everyone was unarmed also applies here. First, a woman armed with a gun may well be safer against a rapist armed with a gun -- especially if the police aren't going to come help -- than an unarmed woman against an unarmed rapist (though it obviously depends on the people involved). Second, there are 200 million dumb guns in the country. They're not going away. If an electromagnetic pulse destroys my smart gun (because I was so smart and cautious that I traded in my dumb gun for the smart gun), the result won't be unarmed me vs. unarmed attackers. It'll be unarmed me vs. armed attackers.

     Now all this having been said, let me repeat what I said in my original post: "Naturally, this is just one cost that one has to consider, and[,] as I mentioned[,] the benefits of smart guns, if they become highly reliable, are nontrivial." But as I also said in the original post, "I don't think that we can just ignore this cost. We've generally lived our lives in environments of peace and civil order, but there's no guarantee that this will continue." I hope we'll live our lives in peaceful times; I just wouldn't bet that much on it.


A READER'S FIRST PRO-WAR DEMONSTRATION: Reader (and fellow Bruin) Michael Williams reports his experiences -- I pass them along for your information:
So I went to the anti-war protest at UCLA today; this was my first demonstration and I didn't know quite what to expect. I made up a few pro-war signs and handed them out to some like-minded students to hold up with me. I was surprised somewhat, because it wasn't at all hard to find people willing to hold up the pro-war signs (as I thought it might be). I had:

1. "Saddam is Mean" [Volokh says: I hope this was intended to be facetious]
2. "Give War A Chance!"
3. "Peace Through Victory!"
4. "Anti-War = Pro-Murder, Pro-Torture, Pro-Rape"

We also made "Beat it Hippies", which got a pretty good reaction.

I had the opportunity to run up on the stage and hold sign #4 up behind the speaker for about a minute before people started boo-ing and security pulled me off stage. They tried to take my sign too, but I wouldn't let them. Then about half an hour later three other guys and I got back up on the stage (near the back) and wouldn't let their security take us down. They called the police over but I guess the cops decided we weren't doing anything illegal and so they didn't do anything. It was pretty amusing. At that point I got bored and left.

I think sign #4 got the strongest reaction from people, as you can imagine. Several anti-war people got angry, but when I explained to them how the sign was accurate they shut up and walked off. Around a dozen groups and individuals thanked me for being out there, including a lady in a wheelchair who really liked the sign and some construction workers who seemed to hold most of the students in general contempt.

Most of the people there seemed to really dislike Bush for some reason. Some girl tried to convince me that, although Saddam does murder, torture, and rape people, Bush does too. I couldn't quite pin her down on her sources, but she seemed very convinced. I can't substantiate these claims, but if they're true I think that the media should stop covering for Bush.

Overall it was an interesting experience. In practical terms it was a waste of time, but entertaining nevertheless. I was interviewed by
reporters from a few newspapers after I was dragged off the stage the first time, and several photographers took my picture, so if anyone sees me let me know. There were some TV and radio journalists there as well, but I didn't have a chance to talk to any of them. Good stuff.


GETTING LINKS TO INDIVIDUAL POSTS: A reader asked how one can get links to each individual post -- many people know this, but some don't, so I thought I'd mention it:
  1. In Explorer, right-click on the red time-stamp at the top of the post, and click on "Copy Shortcut." Then go wherever you want to save the link, and type control-V in order to insert the link.

  2. In Netscape, do the same, but the item to click on is labeled "Copy Link Location" rather than "Copy Shortcut."


PLANNING FOR THE FUTURE: CalPundit is highly skeptical about my concerns that we might live through a time (1) of civil disorder (2) during which we'd like to have guns that aren't subject to electronic attack. I wrote:
[J]udging by recent human history, there's reason to think that there's a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down.
CalPundit responds:
Huh? In the last century our homeland has been attacked only twice, both of them isolated incidents, and while I agree that future terrorist attacks are fairly likely, it seems extremely unlikely that "civil order will break down."
Well, this highlights the basic question -- how do you plan for decades into the future? In 1900, after nearly a century of relative continental peace (since 1815), I don't think many Europeans would have expected the European continent to be devastated in the next 50 years by two world wars costing tens of millions of lives. I don't think many Germans would have expected Nazism, or the slaughter of six million Jews. I don't think many people would have expected that 50 years from then, Russia would be one of the two superpowers.

     I don't think that it's likely that within our lifespans, civil order will break down even temporarily (and I was speaking of temporary breakdowns, since we and our families can be killed in temporary breakdowns as much as in long-term ones). But I don't see how one can confidently assert that this is virtually impossible. Is it really so unthinkable that as technology gets cheaper and more powerful, some terrorist groups will massively bomb the city I live in? Is it really so unthinkable that there might be a civil war -- full-scale, or local -- in the next 50 years in the U.S., as there has been in other democracies, including our own?

     Now one possible answer is that the age of chaos is over, because our democratic institutions are stronger than they were ever before. I hope that's right. But I wouldn't bet my life, or my family's life, on it. And that's why I think it's good to own some nice dumb weapons, just in case some time the smart ones don't work that well -- and that might be the time we most need them.


KCLU (VENTURA COUNTY [88.3] AND SANTA BARBARA COUNTY [102.3]): I'll be on KCLU from 9 to 9:40 Pacific time talking about the Pledge of Allegiance case.


THE NEW YORK MALL INCIDENT AND THE NEW YORK CONSTITUTION: Some people have asked whether the New York Constitution prohibits malls from excluding people based on their speech. As I mentioned in my post yesterday, the U.S. Constitution does not constrain action by private malls, but some states have laws and constitutional provisions that do constrain them; a few states, for instance, have interpreted their state constitutions as not having the same sort of "state action" requirement that the First Amendment has.

     New York, though, is not one of those states. SHAD Alliance v. Smith Haven Mall, 66 N.Y.23d 496 (1985), holds that the New York Constitution's free speech guarantee applies only to state action; that "the nature of property [here, a mall] [does not] transform a private actor into a public one"; and that
Discussion concerning the purportedly unobstructive nature of plaintiffs' activities, the need for expensive channels of communication, and the long and rich tradition of free expression in this State begs the question. Such factors are irrelevant to whether State action is present and whether there has been a constitutional infringement.
Now the opinion does say that the Mall's action in that case was pursuant to a blanket no-handbilling policy; the Mall apparently wasn't discriminating based on the content of speech. But nothing in the logic of the opinion relies on this point -- and if a content-neutral restriction by a private actor is not state action and thus not a violation of the state Constitution, then a content-based restriction wouldn't be, either (even if the restriction in the current case is content-based, rather than based on the T-shirt wearers mode of expression, which supposedly involve approaching people to spread their political views). Judge Jasen's concurrence in SHAD Alliance would have imposed more constraints on actions by private malls; but that's the concurrence, and not the majority (which garnered a majority of the judges even without Judge Jasen's vote). See also Moore v. Suffolk County Police Dep't, 579 N.Y.S.2d 575 (trial court, 1991), holding that an abortion clinic had a right to use the police to exclude protesters from its property in front of its building; People v. Raab, 612 N.Y.S.2d 440 (trial court, 1994), holding the same as to a church's parking lot


HOT NEWS OR HOT AIR? A Russian news agency reports that:
Iraq has dropped bombs hitting 2,500 oil fields that cover a vast area.

According to the IRNA agency, the bombing near Sharjeh resulted in the explosion of an oil refinery near Kirkuk. . . .
I have no idea whether this is indeed true. Thanks to Kevin Connors for the pointer.

UPDATE -- LOOKING MORE LIKE HOT AIR: Kevin Connors writes:
My sources tell me that this story is nowhere to be found on IRNA's Russian language wire, just the English. A story of this magnitude should have been picked up by the majors by now. It's looking more like a hoax. Either that or something like 25 oilwells has turned into 2500 oilfields.


ANOTHER BIN LADEN FAN IN THE U.S. CONGRESS: InstaPundit points to the following amazing quote:
When America "cast off monarchical Britain" in 1776, it involved the help of many religious people who had fled repression in other countries, the 11-term Toledo [congresswoman Marcy Kaptur] said. Among the nontraditional American revolutionaries were the Green Mountain Boys, a patriot militia organized in 1770 in Bennington, Vt., to confront British forces, she said.

"One could say that Osama bin Laden and these non-nation-state fighters with religious purpose are very similar to those kind of atypical revolutionaries that helped to cast off the British crown," Miss Kaptur said.
Well, yes, one could say that. One could say that Adolf Hitler and his nation-state fighters with nonreligious purpose are very similar to those kinds of nationalistic forces that helped defeat him. One could say that the Ku Klux Klan and its non-nation-state fighters with ethnically motivated purpose are very similar to those kinds of atypical rebels that helped to cast off the British crown, too; in fact, the Klansmen said things like that, and others did to. One could say lots of things if one doesn't mind being a moral idiot.

     If you're interested in reaching Rep. Kaptur, her e-mail address is; I've e-mailed her office to ask whether there's any explanation for the quote (and of course it's possible that the quote is mistaken, in which case I assume they'll tell me). It would be better, though, if people -- especially Ohioans -- could reach some Ohio politicians whose support or opposition might influence whether Miss Kaptur gets a twelfth term. Presumably, the more they know that people are outraged by Kaptur's comments, the more likely they'll be to try to McKinney her.

UPDATE: Clayton Cramer has a more thorough response to Kaptur's broader claims -- though I'm not sure that they really deserve that thoughtful and careful a response.


THINGS YOU LEARN FROM GOOGLE: That's from the query screen, not actually from any queries -- it's apparently Michelangelo's birthday, which I guessed from today's google logo, though didn't know before.

UPDATE: Reader George Byrd points out that March 6 was also the day the Michelangelo virus wreaked a good deal of havoc, that it's Ed McMahon's birthday, and that there's a joke connecting the two.


"THEY SAY THEY EXPECT AT LEAST ONE [ANTIWAR DEMOCRATIC] LAWMAKER TO INTRODUCE AN IMPEACHMENT RESOLUTION": Yup, that's right, there's apparently talk about some Democrats calling for President Bush to be impeached. As InstaPundit suggests, this would be the height of folly for the Democratic Party, and I assume that it won't happen. But if you're following the issue, you might keep a close eye on one of the brains behind the operation (alongside Ramsey Clark), "Francis A. Boyle, a law professor at the University of Illinois." My chief experience with Prof. Boyle has been seeing some of the e-mail messages that he likes to mass-mail to law professors; one, on June 11, 1997, called for law professors "to prevent[] the appointment of Federalist Society Members to our faculties," not exactly the most professionally ethical suggestion.


THERE'S NO "CORPORATE IRRESPONSIBILITY" EXCEPTION TO THE FIRST AMENDMENT, notwithstanding what this Fox News story seems to suggest:
The family of Michael Hart, a West Virginia man whose killer was featured on a VH1 special last year, is suing the network's parent company for emotional distress.

Hart's mother, Linda Garrett, and sister Misty Hart have filed a suit against Viacom seeking unspecified compensatory and punitive damages, as well as a court order preventing VH1 from re-airing the Music Behind Bars special that featured the music of Michael's killer, among other criminals.

"Our case is alleging that despite repeated requests not to air the show, VH1 went ahead and it did it anyway," said Hart family attorney Liz Thompson. . . .

[W]hether Henthorne was paid or not [which is a contested question] doesn't change the fact that the special caused Hart's family emotional damage, said lawyers.

"A criminal who has harassed this family is being celebrated as someone of merit and it's causing the family to feel more harassed. VH1 is assisting in harassing the family," said Cy Weiner, another attorney representing Hart and Garret. "The victims are sitting there and they have no outlet for their feelings. This is a victim’s rights case, primarily. And it’s an example of corporate irresponsibility." . . .

"Punitive damages means 'VH1, you did a really bad thing. We should punish you' . . . And the idea is punish them where it hurts, which is in their pocketbooks," said Fox News legal analyst Lis Wiehl. "They're also asking for compensatory damages, to be compensated for their out-of-pocket expenses like any psychiatric care they needed or lost work and attorney fees."

Wiehl said she also believes the lawyers have a good case of corporate irresponsibility against VH1. . . .
Uh, nice argument, but I wonder whether that leaves this statement from a 1991 Supreme Court decision that struck down a law that barred criminals from profiting from accounts of their crimes -- a law which, if anything, would have been a much more defensible speech restriction than an attempt to bar innocent third parties from broadcasting material that seems to glorify criminals --
The Board disclaims, as it must, any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers. As we have often had occasion to repeat, "[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection." "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Board thus does not assert any interest in limiting whatever anguish Henry Hill's victims may suffer from reliving their victimization.
Seems pretty dispositive to me, notwithstanding the mantra of "corporate responsibility."

Wednesday, March 05, 2003


"CONVICTED STALKER NEEDS OK FOR SEX": I can see the reason for this, and it may well be legally permissible -- but it somehow doesn't sound to me like a good idea. Among other things, how is the probation agent to decide when to permit it and when not to? Somehow doesn't seem to be the sort of thing one learns in Probation Agent School.
A Grand Chute man will need permission from his probation agent before dating or becoming involved in a sexual relationship for the next seven years.

The stipulation was made part of probation for Thomas E. Smith, 38, who was sentenced Feb. 17 in Outagamie County Circuit Court on charges of stalking, burglary and bail jumping.

Judge Michael Gage stayed a two-year prison sentence plus two years of extended supervision and instead placed Smith on seven years of probation.

Gage ordered Smith to spend a year in jail with work-release privileges and instructed that he “is not to enter into any dating, intimate or sexual relationship with any person without permission of the (probation) agent.”

Janine Geske, interim dean of the Marquette University Law School and former Wisconsin Supreme Court justice, said Monday that she had not heard of such a condition before.

“You are putting a (probation) agent in a difficult situation,” Geske said. “This is interesting, because it is not a prohibition. He would have to get permission first. I would imagine it would be pretty difficult to enforce.” . . .

Smith was arrested five times in three months, starting with an altercation on the day his girlfriend ordered him out of their Grand Chute residence Sept. 11.

Smith was arrested, posted a $150 cash bond and was ordered not to have contact with the woman. But, within hours of his release he harassed her and was arrested again, according to court documents.

Smith later violated his bond again during incidents between Nov. 12 and Nov. 16 and posted bonds of $500 and $750 to get released from jail.

Another series of incidents Nov. 20 in which he vandalized the woman’s car resulted in a felony stalking charge. Smith was arrested and posted a $1,000 cash bond to get released from jail.

On Nov. 26, the day he was released from jail, he began making phone calls to the woman’s residence. On Nov. 28, Smith made 90 phone calls to her residence, which, according to telephone records, were made at one-minute intervals. . . .


E-BOMBS AND SMART GUNS: Slate reports about e-bombs, which can generate electromagnetic pulse that can fry circuitry:
What of "e-bombs"? . . . E-bombs emit high-energy electromagnetic waves, simulating over a small area the electromagnetic pulse of a nuclear explosion: In theory, they can fry out electronic circuitry. Futurists have been predicting electronic war, and if e-bombs succeed, perhaps that age will arrive. In the futurist vision, pulses from e-bombs cause anything that contains computer chips to wheeze to a halt, winning without widespread devastation and allowing low-cost reconstruction -- just replace the chips! In tests, however, e-bombs have been underwhelming.
This, it turns out, is one of the little-known twists in the debate about "smart guns." Smart guns, in theory, would only be fireable by their authorized owner; this would be done using some technology, likely chip-driven technology -- possibly some radio transponder that reacts to a special ring that the owner wears, or possibly even fingerprint recognition (though that would have been mighty quick and reliable). I don't support laws that mandate smart guns, chiefly because there's no reason to think that such guns will be reliable enough any time soon. But I certainly see the advantage of such guns, as a means of preventing the 100 or so fatal gun accidents and the greater number of nonfatal gun accidents involving kids that happen each year in the U.S. If I had a child, and smart guns were reliable enough, I might well be willing to spend some extra money to get a smart gun instead of my current dumb guns.

     But the concern about electromagnetic pulses -- either from nuclear attacks or, more likely, from "e-bombs" -- puts a different cast on things. Naturally, I don't expect an e-bomb being set off in L.A. any time soon; but I also don't expect a fatal gun accident in my house any time soon, since those are rare events, too. But I do know that there's a nontrivial chance that in my lifetime, there will be some terrorist or military attack on the place that I live. When that happens, there might well be serious social disruption caused by the attack, and extra need for me to be able to protect myself and my family. It would be just the wrong time to be armed with something that used to be a gun but that's now just an expensive lump of metal.

     Naturally, this is just one cost that one has to consider, and as I mentioned the benefits of smart guns, if they become highly reliable, are nontrivial. (That, incidentally, is one reason that I think gun manufacturers have plenty of incentive to develop smart guns on their own, if such development is possible -- there are millions of gun owners out there who aren't likely to buy new guns unless the guns have some cool new feature, and protection against child gun accidents would be one such feature.) Moreover, the cost might be minimizable, for instance if the guns end up being properly shielded (though I understand that creating such shielding is nontrivial, which is one reason that e-bombs are potentially powerful weapons), or if the guns are set up so that when the "smart" technology fails, the result is a working dumb gun rather than an inoperable one.

     But I don't think that we can just ignore this cost. We've generally lived our lives in environments of peace and civil order, but there's no guarantee that this will continue; in fact, judging by recent human history, there's reason to think that there's a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down. And when that happens, we'll both be in special need of personal defense weapons, and in special need of personal defense weapons that haven't had their innards fried to a crisp.


THE SMOKING GUN ON THE MALL T-SHIRT CASE: The Smoking Gun has the criminal complaint and the affidavit from two mall security people (thanks to reader Matt Thullen for the pointer), which describes both their activity and that of the police officers. If the affidavit is correct, then apparently the arrestees weren't just wearing the T-shirts but were stopping passersby to express their views; that's what led someone to complain to mall security, led mall security to tell the T-shirt-wearers to stop or leave, and then led the police to eventually tell them the same and arrest one of them when he didn't leave. That would make the mall's behavior much less intolerant -- one can debate whether private malls should let their patrons actively proselytize their views to passersby (and not just passively by wearing T-shirts, something that mall visitors often do), but the mall's decision not to allow this is at least within the boundaries of reasonableness.


ACCESS DENIED: Sorry for my silence today; my dialup connection isn't holding for more than a few minutes at a time. (Ah, the glories of SBC Ameritech, the most unreconstructed of the Bell monopolies.) This also means that I can't reply to the (many, many) e-mails I've received about the Pledge of Allegiance. Quick responses to a couple of the comments I received the most frequently: 1) Given the understanding of voluntariness and coercion in the various school prayer cases, I don't think the "under God" pledge can be defended simply on the grounds that kids aren't legally obliged to say it in the first place. Opt-out provisions don't legitimate having a teacher lead children in prayer. If "under God" is a religious invocation, then it doesn't become constitutional simply because the Court has previously has previously prohibited compelling the students to say it. 2) What Jack Balkin referred to as the "ceremonial Deism" exception isn't worded that way in the caselaw (that I can recall offhand); we just have an endless series of dicta wherein the Court distinguishes some act it's ruling a violation of the Establishment clause from the "In God We Trust" motto and other provisions that seem inoffensive, nonsectarian, and noncoercive.


ON THIS DAY: On March 6, 1953, the New York Times ran this obituary of Joseph Stalin. You have to read it to believe it. (Link via K-Lo from The Corner.)



Western intelligence agencies are investigating claims that Saddam Hussein ordered the murder of a senior Iraqi missile engineer to prevent him passing vital information to United Nations weapons inspectors.

Gen Muhammad Sa'id al-Darraj, who was in charge of Iraq's mobile Scud missiles until three months ago, died 24 hours after talks with Saddam's officials, according to Arab newspaper reports. The officials wanted to discuss how the general would conceal his knowledge if he were called for interview by the UN.

The London-based Al-Zaman newspaper said that Gen al-Darraj told "indignant" relatives shortly before he died that he had been slipped a poisoned drink during the meeting at one of Saddam's presidential palaces. . . .

British Government officials said yesterday that they were still trying to corroborate the report.

UN inspectors held their initial private interviews with Iraqis involved in Saddam's weapons programme - a biologist and a missile expert - on Friday, their first such talks for three weeks.

Last week Britain's ambassador to the UN, Sir Jeremy Greenstock, gave a private briefing to other members of the Security Council on Iraq's continuing efforts to conceal its chemical weapons and nerve gas production from the weapons inspectors, The Telegraph has learnt.

Officials say that Sir Jeremy will reveal more to his senior UN colleagues this week, including sensitive intelligence information, in an effort to boost support for the British and American-backed resolution on Iraq. . . .
If this is true, what it does say to the "no need to get rid of Saddam, we can just use inspectors to contain him" argument?

UPDATE: The Associated Press reports that
[French foreign minister Dominique] De Villepin said he believes the results of inspections "were more and more encouraging," citing the destruction of Iraqi missiles, information being received about biological and chemical agents and interviews with scientists.
Xrlq has more on the juxtaposition of these two stories.


THE ESTRADA COMPROMISE. It’s in nobody’s interest to let the Estrada filibuster continue while we go to war. The situation cries out for some sort of compromise that allows both sides to save face. Here’s a suggestion: the Republicans give up on Estrada and the Democrats agree to give prompt floor votes to all other pending nominees – including (but not limited to) Owen and Pickering. The Republicans get almost everyone they want, the Democrats manage to avoid the one nominee they most don’t want, both sides win something, and the Senate can direct its attention to more pressing business. I realize this is hard on Estrada, who (as I have said) I would be inclined to support if I had a vote to cast; but a large minority of Senators fervently oppose him, rightly or wrongly, and that fact is entitled to some weight as well. In any event, a way out is needed, and soon.


THREE STRIKES: The Court has upheld California's Three Strikes law, which strikes me as the right result (see also here).


MEGAN'S LAW CASES: The Court upheld the challenges -- both Ex Post Facto Clause and Due Process Clause -- to Megan's Laws. My prediction on Nov. 12 was:
Bottom line: The Court will uphold Megan's Laws both against the due process challenge (that's the Second Circuit case) and the Ex Post Facto Clause challenge (the Ninth Circuit case). Confidence level: Very high.

Vote: I'd guess 7-2 for each. Confidence level: Pretty high, if you give me a 2-Justice margin of error! Well, even if you don't, I think it's the likeliest result -- I think two of the liberals will find something wrong on both theories, though I'm not sure which two.

Lineup: This is the toughest one -- I'm sure that Rehnquist, O'Connor, Scalia, Kennedy, and Thomas will vote to uphold both; I suspect that the other two votes to uphold, in both cases, will be Souter and Ginsburg, with Stevens and Breyer being the dissents. Confidence level: Fairly low; this is just a wild guess.
Actual result: The Court upholds both laws, 9-0 for the due process challenge (though with Justices Souter and Ginsburg suggesting that a different sort of challenge to the law might still be viable in the future), and 6-3 (the dissenters being Justices Stevens, Ginsburg, and Breyer) for the Ex Post Facto Clause challenge.


KICKED OUT OF MALL FOR WEARING PEACE T-SHIRT: The article is titled "Lawyer Arrested for Wearing a 'Peace' T-Shirt", though it should more properly be "Lawyer, Told to Leave Mall or Take off 'Peace' T-Shirt, Arrested for Trespassing When He Doesn't Leave" (but of course I realize that would be too long). A few people e-mailed me about it, so I thought I'd briefly blog the following:
  1. As best I can tell from the story, the arrest was proper, because a private mall may generally exclude anyone it pleases (unless it's doing so based on race, national origin, or some other criteria, or unless there's a state law that prohibits such exclusions, which isn't the case in most states).

  2. Someone suggested that the Shelley v. Kraemer precedent, which held that courts couldn't enforce racially restrictive covenants, likewise bars the law from punishing trespassers when the reason that the private property owner didn't want them there is their race, speech, or what have you, but that doesn't apply for technical reasons that I don't want to bother with here. (The 1960s sit-in cases, which generally set aside trespass convictions of people whom property owners tried to evict based on race, all relied on some government action that was itself racially discriminatory -- or otherwise impermissible -- rather than just on enforcement of entirely racially neutral trespass laws; see Justice Harlan's dissent in Bell v. Maryland, 378 U.S. 226 (1964) for a thorough discussion.)

  3. Nonetheless, the mall owner's action seems to be (if the press accounts are correct) distinctly narrow-minded, and worthy of condemnation. The T-shirt involved wasn't rude or insulting; it just expressed a legitimate, decent political viewpoint that the mall owner disagreed with. His property rights may allow him to evict the person, and to use the police if necessary, just as they'd let him evict someone who's wearing a pro-war T-shirt. But our free speech rights allow us to condemn him for his intolerance, and we should do so.
UPDATE: InstaPundit takes a similar view.

FURTHER UPDATE: Some documents made available by The Smoking Gun suggest the facts were considerably more complex than the original press account suggests (I am shocked, shocked that there's oversimplification going on in this establishment!), and that the mall's behavior might be more reasonable than it at first appeared (though again much depends on exactly what happened); see here for more.


OF TORTURE, SPIDERS, AND "SMACKY-FACE." As long as Eugene has raised the question of torture, let me add that Tuesday’s Wall Street Journal had an interesting article about the sort of treatment Khalid Shaikh Mohammed soon will be receiving if he isn’t already. I can’t link to it, but here are a few excerpts:

“Military interrogators say their prisoners can be lied to, screamed at and shown falsified documents in the hopes they might unwittingly confirm certain pieces of information. Interrogators can also play on their prisoners' phobias, such as fear of rats or dogs….

“Bush administration lawyers acknowledge only one legal restraint: the United Nations' Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the Senate ratified in 1994 after adding several reservations limiting its scope.

“The treaty bars interrogators from inflicting ‘severe pain or suffering, whether physical or mental’ and prohibits transfer of prisoners to other countries that may practice torture. ‘No exceptional circumstances whatsoever may be invoked as a justification of torture,’ the treaty says….

“But because the treaty has no enforcement mechanism, as a practical matter, ‘you're just limited by your imagination,’ a U.S. law-enforcement official says.

“In other words, as long as the pain and suffering aren't ‘severe,’ it's permissible to use physical force and to cause ‘discomfort,’ as some U.S. interrogators euphemistically put it. Among the techniques: making captives wear black hoods, forcing them to stand in painful ‘stress positions’ for a long time and subjecting them to interrogation sessions lasting as long as 20 hours.

“U.S. officials overseeing interrogations of captured al Qaeda forces at Bagram and Guantanamo Bay Naval Base in Cuba can even authorize ‘a little bit of smacky-face,’ a U.S. intelligence official says. ‘Some al Qaeda just need some extra encouragement,’ the official says.

“‘There's a reason why [Mr. Mohammed] isn't going to be near a place where he has Miranda rights or the equivalent of them,’ the senior federal law-enforcer says. […] ‘God only knows what they're going to do with him. You go to some other country that'll let us pistol whip this guy.’” [...]

"When interrogators finish with Mr. Mohammed, he is likely to face a U.S. military tribunal, but that will probably be years from now."

[End of excerpts.]

Dear me. The seeming insouciance of the “senior federal law-enforcer” is jarring, is it not? (If it isn’t, then isn’t the fact that it isn’t jarring a little jarring?) Some comments:

1. This account may just be yet another Orinism disinformation intended to frighten Al Qaeda members around the world. In that event I should think it would be fairly effective.

2. But if this account of the government’s policy is accepted as accurate – and I am inclined to regard it that way – it raises interesting issues surrounding torture. The first is that the government apparently regards itself as constrained by very little in the way of law; and so far as it is constrained, it is by a definition of torture considerably more demanding than a layperson would suppose. Only the infliction of “severe” suffering is forbidden. And then even here the rule is enforced by what might best be termed the honor system. If this fellow is being subjected to water torture, alligator clips, an so forth, it’s not clear that anyone outside the government ever will find out. (What if he really is a common shoe salesman who only looks like Khalid Shaikh Mohammed? That would be a very bad piece of luck for him. But I guess they are pretty sure he is the right man.)

3. The reference to phobias especially fires the imagination. If he has arachnophobia are they going to shut him into a brightly lit closet full of spiders until he identifies some Al Qaeda cells? And if he has musophobia are they going to chain him into a dark dumpster full of rats? And if he has coulrophobia are they going to have him interrogated by a bunch of guys in clown suits? Egad.

     Incidentally, I was in a pet store last week and was surprised to see that they had a number of rats on prominent display. Evidently pet stores do a surprisingly brisk business in rats, though the owner admitted that a large share of the buyers just use them as food for their snakes. Not all of them, though; the proprietor insisted that rats are friendlier than most people expect, that they can learn to respond to their names, that they generally are no less tame than dogs, and that they make good pets once one overcomes the visceral tendency to recoil at the sight of the long tail. He offered to make an introduction so that I might see these things first hand. I told him not to trouble himself. But I digress. Sort of.

4. Anyone can oppose policies that allow torture when it’s used casually during times of peace. Now we will find out a little more about what we really think of torture and what the true basis of the usual opposition to it is. Real events are educational in this way. Who will stand up and say that this man is being treated outrageously, that he has an irreducible human dignity that must be protected, and that this conduct makes us no better than the dictatorships around the world that we condemn? Some will say this, but I do not think it will be very many, or very loudly, or very persistently. (We shall see.) If I am right, part of what this may show is that our aversion to torture has a more instrumental basis than we may care to admit, as shown by our practical willingness to tolerate it (perhaps with a bit of hand-wringing -- "you know, I really don't think they should be doing this," etc.) when (a) the potential benefits seem great and (b) the facts of the situation make it possible for us to think we can allow a bit of torture without worry that it will spill over into other more common situations where there is a greater risk of abuse. Or maybe it just shows that the purest moral convictions can withstand only so much pressure from utilitarian temptation, the lust for vengeance, or both.

Tuesday, March 04, 2003


MORE INCONCLUSIVE POLLS ON IRAQ: Edward Boyd (Zonitics) cites the following poll:
ABC News/Washington Post Poll. Feb. 26-March 2, 2003. N=1,022 adults nationwide. MoE ± 3 (total sample). Fieldwork by TNS Intersearch.

"The Bush Administration says it will move soon to disarm Iraq and remove Saddam Hussein from power, by war if necessary, working with countries that are willing to assist, even without the support of the United Nations. Overall, do you support or oppose this policy?"

[Support] 59%
[Oppose] 37%
[No Opinion] 4%
Cool, I like that. But if you read further on the same page (at the site, a great resource), you also see:
CNN/USA Today/Gallup Poll. Latest: Feb. 24-26, 2003. N=1,003 adults nationwide. MoE ± 3. . . .

"As you may know, the U.S., Great Britain, and Spain plan to submit a resolution to the United Nations that says that Iraq is in serious violation of prior UN resolutions that required Iraq to disarm. Do you think the United States should invade Iraq with ground troops only if the UN approves this new resolution, even if the UN does not approve this new resolution, or do you think the United States should not send ground troops to Iraq at all?" Options were rotated

[Only With UN Approval] 40%
[Even Without UN Approval] 38%
[Not At All] 19%
[No Opinion] 3%
So one poll (2/26-3/2) says 59%-37% in favor of war even without U.N. approval; another (2/24-2/26) says 59%-38% against war without U.N. approval.

     So what does this mean? Well, obviously people's reactions are sensitive to the wording of the question, but I think that sort of sensitivity itself shows that people's views on the subject just aren't very firm. A bit over a third of the public supports war without the U.N., a bit over a third of the public opposes it (either altogether or unless the U.N. says yes), and a bit under a third is uncertain.

     Thus, we don't have a settled public opinion even now -- and this means that it's utterly futile to predict how the public would view the war after it takes place. It would be pretty pointless, it seems to me, for Democrats, Republicans, or anyone else to focus much on these polls.


TORTURE: A couple of people e-mailed me to raise the perennial question of when, if ever, torturing a likely terrorist is justified. I don't have anything new to say, but I thought I'd recycle a post of mine from last June, when the issue last came up. Warning: There are more questions than answeres here.

TENTATIVE THOUGHTS ON TORTURE: I've gotten quite a few messages in recent days about my earlier torture post, and I've also been involved in a discussion of the subject on a constitutional law professors' e-mail list. This has given me a chance to think some more about the matter, and generated the following very tentative thoughts:

     1. Risks: Let me say again what I've tried to say before -- there are lots of very good arguments against the use of torture, even in extraordinary circumstances. Once torture is legitimized in foreign wars, it becomes much easier to suggest that it be used for domestic terrorism (leftist, rightist, anti-abortion, environmentalist, etc.), and from then to domestic dissent that some think is related to rebellion. It likewise becomes much easier to use it in normal criminal prosecution ("Isn't the kidnapped little girl's life worth just as much as the lives of those who were saved by the use of torture in [some past incident]?").

     Many people whom I've heard discuss torture have, while focusing on its use as to the hidden-nuclear-bomb scenario, quickly slipped from cases involving the lives of thousands to ones that involve the lives of dozens or even individuals. And if we do have this slippage, then we do risk giving future governments an awful tool to be used, and abused, in lots of situations.

     Now, as the following suggests, I don't think that this is an open-and-shut argument against torture. Sometimes, a vast risk today (a hidden nuclear bomb or smallpox vial) may justify doing things that create risk for tomorrow. But I want to acknowledge up front the serious dangers of employing torture even in extraordinary circumstances. My arguments below are thus more rebuttals to certain arguments against torture, rather than endorsements of torture as such, even in extraordinary cases.

     2. Accuracy of information: Many correspondents have suggested that torture will be ineffective, because people will say anything, including falsehoods, under torture. I think this is a serious concern, but I want to offer a few observations on it.

     a. Plea-bargaining and testifying against coconspirators: To begin with, the concern about false confessions applies in some measure to all threats, whether threats of torture or threats of imprisonment. "If you confess to aggravated assault, we won't prosecute you for attempted murder" may lead an innocent defendant to confess to a crime he didn't commit. "If you testify against your coconspirators, we'll ask the judge to reduce your sentence" may lead a defendant to falsely implicate others.

     Now maybe these practices are themselves suspect. But our legal system has generally taken the view that they are necessary, and that while they pose a risk of false confession or false testimony, that risk is outweighed by their benefit. And at least as to getting testimony against coconspirators, I think that has to be so; otherwise, I think various organized criminal groups would be extremely hard to crack.

     b. Testimony vs. information that leads to evidence: This having been said, it's true that coerced testimony is quite unreliable; and defense counsel are good at pointing out its unreliability: "Ladies and gentlement of the jury -- the person testifying against my client is (1) a confessed criminal who (2) has a strong incentive (the risk of prison, the risk of execution, the risk of torture) to say anything to implicate my client. Why should you believe him?" It may be that testimony coerced through torture is even more unreliable than testimony coerced through the risk of a long prison term, or a death sentence, though I'm not completely sure about that.

     But the risk of unreliability is much less if the coerced statements (again, coerced by torture or by risk of prison or the death penalty) are used to uncover other evidence, such as the location of a bomb, the location of papers that contain details of the plot, the phone lines that can be tapped to get more information, and so on. An exclusionary rule barring the admission of the coerced statements but allowing the admission of the so-called "fruits" of those statements -- the evidence uncovered as a result of them -- would help maximize the accuracy of coerced statements.

     c. Torture practices: In fact, I would assume that -- if torture is indeed found to be permissible -- the torture practices would be set up to maximize the likelihood of accurate information. "Confess or we'll keep beating you" is likely to be an ineffective practice (let's set aside for a moment questions of legitimacy and focus only on effectiveness). "Tell us the location of the bomb / the documents / your coconspirators or we'll keep beating you and if you lie to us and we find out, we'll beat you much harder" may be more effective.

     3. Effectiveness: Which brings up the broader question -- is torture likely to be effective, even if done in the "smartest" possible way?

     a. Relevance to the constitutional question: I think this is an important question, for the constitutional inquiry as well as for the moral one. We do have a constitutional norm against torture, and a wise one. If the argument is "The Constitution must be understood as allowing torture when it's necessary to save thousands of lives," then that argument is powerful only if we have reason to think that the exception will save thousands of lives.

     b. Ignorance: But how do we determine whether torture (or, to be precise, torture conducted using the most effective known torture techniques) will indeed be effective? I really doubt that there are good studies on the subject, for the obvious reasons. Even the anecdotal evidence is likely to be highly skewed, because the great majority of instances of government-sponsored torture are probably kept very quiet.

     c. Wishful thinking: What's more, I suspect that the effectiveness judgments tend to be unusually skewed by wishful thinking, precisely because of lack of serious evidence. Those who want to find torture to be acceptable, perhaps because they think that this war can be won only by being maximally tough, will tend to take the rosiest view of the effectiveness of torture. Those who want to find torture to be unacceptable, on moral or slippery-slope grounds, will tend to assume that it will also be ineffective.

     d. Bottom line, as to effectiveness: So when we're determining how effective torture will be, evidence is of little help, and our intuitions are likely to be highly biased. This having been said, my intuition is that torture can indeed be effective, if properly done, in some circumstances.

     What's more, effectiveness is always a comparative inquiry: If the nuclear bomb / dirty bomb / smallpox vial is hidden in Manhattan, how effective will torture be, together with all the other investigative techniques that will presumably still be operating, as opposed to just the non-torture techniques? It may be that torture is a long shot, but everything else is a long shot, too.

     4. Unconstitutional, but people should do it anyway: Finally, some argue that torture should be unconstitutional and illegal, but that in the hidden-bomb scenario, law enforcement should do it anyway -- and be prosecuted and convicted for it, but then perhaps pardoned. This, the theory goes, will preserve the important moral norm that torture is wrong, even though we will expect that the norm will sometimes be violated.

     This is not a silly argument. It's obviously unsatisfying, but it can be defended as the lesser of two evils: On balance, the argument goes, more bad things will happen if (a) we legally allow torture than if (b) we forbid it but in some measure accept that the law won't always be followed. Once torture is legally allowed, then it will end up being overused. But if it's forbidden, then people's natural tendency to violate the law in the nuclear-bomb hypothetical may lead torture to be used at the proper level.

     But I confess that I find this troublesome, because it smacks too much of the pacifists who say that war is never permissible, but are secretly glad that their lives and liberties are being protected by the war that the nonpacifists are fighting. The problem with this faux pacifism isn't just that it's hypocritical; sometimes a certain degree of hypocrisy is better than the alternative. Rather, the problem, I think, is that it casts pacifism itself in disrepute among the public as a whole.

     Now I don't mind if this happens to pacifism, which I think is an unsound ideology. But constitutionalism and the rule of law, I think, are generally good ideologies; I don't want people to have contempt for them. And yet I fear that people who are (a) thankful for the efforts of the torturers who save thousands of lives and yet (b) have to see those torturers be tried and convicted (even if later pardoned) for their actions will end up having contempt for the legal system that would punish those whom the nation should be thanking.

     5. Conclusion. So where does that leave me? Sad, unsatisfied, and afraid. I'm afraid of the government acquiring the power to torture even the worst of the worst, since historically such powers have often been broadened and abused. At the same time, I'm obviously afraid of the terrorists -- and more broadly I'm afraid that we might need to be tough, to the point of brutality, in order to save our lives and the lives of our compatriots. I have no answer, though I hope that some of these observations may help others to arrive at one.


WITH FRIENDS LIKE THESE: Slate's Chatterbox writes that:
But another view is emerging that the Turks will keep coming into northern Iraq even if U.S. troops launch their invasion from somewhere else. In the Turkish Daily, Mensur Akgun of Kultur University is quoted saying, "If war breaks out, Turkey will intervene in northern Iraq in any case. I don't think the U.S. will break the political agreement that enables Turkey to be in northern Iraq." He's got a point. Turkey is a democracy, a long-standing ally, a more or less secular Muslim state, and practically the United States' only friend right now in NATO. Even an obsessive unilateralist like George Bush would probably flinch at having U.S. troops expel the Turkish army from northern Iraq at gunpoint. . . .
Hmm -- Turkey refused to help the U.S. by letting us station troops there, even though we'd have given it billions in loan guarantees and grants for the privilege. England and Spain, on the other hand, seem to be backing us solidly in the Security Council, and to my knowledge England is planning to contribute substantial troops to a war against Iraq, if the war happens. And yet Turkey is "practically the United States' only friend right now in NATO"?

     And what's this "obsessive unilateralist" stuff? As people have pointed out ad nauseam, we're hardly planning to go into this unilaterally, unless unilaterally is redefined to mean "without U.N. approval," which strikes me as a rather inapt redefinition. (Yes, I know, being a descriptivist I have to acknowledge that once the term becomes well-established in common usage, its meaning might change -- but it seems to me that people are generally using the term precisely because the meaning hasn't yet changed, so that they can conjure up images of aloneness that "unilateral" generally carries.) Now of course we might be unlikely to expel an ally at gunpoint -- but that's hardly "unilateralism"; presumably we wouldn't be wild about expelling the Turks at gunpoint even if we had full Security Council backing for a war against Iraq, no?


SPYING AT THE U.N.: Eric Muller has an interesting post about a recent Salon story; I haven't yet read the Salon piece, or followed the issue closely, but Eric's stuff is generally well worth reading.


PLEDGE: Philippe's post partly echoes the themes of this Jack Balkin post:
First, consider a much easier case. Suppose that in 1954 Congress modified the pledge to say "under Jesus Christ our Lord and Savior." There seems to be little doubt that public school teachers could not lead classes in recitation of that version of the Pledge of Allegiance at the beginning of each school day. It is too sectarian a statement. Similarly, even if the Pledge said "One Nation, with fervent belief in a God who created us all," it might seem to be too obvious an endorsement of a particular theological position. The one thing that the state may not do under the First Amendment's Establishment Clause is endorse a particular concept of religion or religious belief as the correct or official one. Nor may it create its own theological beliefs or doctrines and pronounce them as the official beliefs of the government. To do this is to violate the most central command of the Establishment Clause.

But Congress didn't do this exactly in 1954. Instead it asserted that the United States is one nation "under God." Now is this an endorsement of a religious viewpoint? Is it an assertion of a preferred or official position about a religious point of view? Well, on its face it appears to be. And given the time the amendment was made, it might well have been designed to distinguish God-fearing Americans from godless Communists in Soviet Russia.

Nevertheless, the expression "under God" might fall into a small category of situations or cases that have been called "ceremonial Deism." These are situations where people express hope or faith or trust in God through traditional and styilized invocations that have very little religious feeling to them. Ceremonial Deism is hallowed by long practice and tends to lose its religious significance over time. The idea is that it has become essentially secular and people shouldn't get too upset about it; it is just the sort of thing one is supposed to say on important occasions and we shouldn't understand it as an official religious point of view.
This is of course the doctrine that legitimates "In God We Trust" on coins, and it will probably be used to reverse the Ninth Circuit. But I think Philippe's right. (TNR made the same point when the Ninth Circuit panel made its original ruling.) The fact that people got so absurdly worked up over "under God" is evidence that it's not meant to be a harmless bit of ceremonial fluff. And the quite distinctive circumstances of the Pledge (an agent of the state leading children who are compelled to be present in a daily loyalty oath) make it distinguishable from "In God We Trust," if one is deave the "ceremonial Deism" precedents intact.


BILL THOMAS: Has made the "dumbest foreign policy proposal of 2003."


STILL MORE ON THE PLEDGE. What Mark Kleiman's comment below (actually the quote within his comment) suggests to me is that the Ninth Circuit got it right. If there are people out there running schools who consider the "under God" business so important that they don't want to recite the pledge without it, then evidently "under God" is not just a ceremonial banality; it means something to people -- at least in some communities. (Well, of course it does.) But in that case students shouldn't be forced to say it or be threatened with embarrassment if they don't. This is the irony of the debate: if nobody cared about it, the Ninth Circuit's decision would look worse, because that indifference would suggest that as a matter of public meaning the "under God" phrase is genuinely insignificant and doing no harm (or good). Conversely, though, the angrier that people get about the Ninth Circuit's ruling, the better the ruling tends to look. The California superintendent's comments are a good example, though I suppose he might defend himself by insisting that he doesn't really care about "under God"; he's just being a sore loser.


MORE ON THE PLEDGE: Mark Kleiman makes a good point (though I don't agree with the entirety of his post):
What fascinates me is the reaction from the head of the school district:

Supt. David W. Gordon said the district was "very disappointed" and plans to ask for a stay and for review by the Supreme Court.

He said the pledge would not be recited without the words "under God" because "we want our kids to say the pledge as it is."

Let's think about the choice Superintendent Gordon has just made. Given the choice between having his students express their patriotism without also expressing their piety and having them not express their patriotism at all, he has chosen to have them be silent. Assuming for the moment that he thinks (as I do not) that a required daily loyalty oath is a good thing, isn't it strange that he prefers not to have it at all if he can't also make it an act of forced worship? Is his religion more important to him than his country?

Doesn't that seem a little bit ... disloyal?


SPORTS AND COLLEGE EDUCATION: I'm not wild about collegiate sports, in part because I think that the pressure to get a good sports team, especially in the profitable sports, compromises academic standards (both just by overtly lowering them, and by encouraging cheating even as to the lowered standards). But if we step back a bit from that common objection, we see a more basic question: Why should we be demanding that athletes who are getting an education in athletics pass muster under academic standards, or for that matter engage in academics at all?

     Say that tomorrow the system of legal education magically changed, so that the overwhelming majority of top law schools -- the feeder institutions for law firms -- required all their students to do well in athletics: run a mile in no less than 8 minutes, bench-press at least X pounds, and so on. We'd think that, first, this system isn't very rational, because it disqualifies some people who'd be fine lawyers, and imposes serious burdens and distractions on others; and, second, it's unfair to the law students -- if you have a first-class legal mind, but fifth-class athletic skills, why should you have to do what you can't do well, and what you don't like trying to do well?

     The same, I think, applies to college athletics (with some distinctions that I'll mention shortly). College athletics is an educational program -- it teaches athletes to be better athletes. An athletic department at, say, the University of Oklahoma (I'm picking a school arbitrarily here) probably provides a very good education in some athletic subjects. But what if some potential students in that school are (1) dumb as posts, or are (2) not at all interested in academics? Why should they be effectively denied an opportunity to study the subject of their choice (football) at this school because they're not good at other subjects (math, English, etc.), any more than a law student should be denied an opportunity to study the subject of his choice (law) because he's not good at other subjects (football)?

     The solution, then, is simple: Each university may have a School of Athletics that can select students based solely on athletic skills, and may demand only (or overwhelmingly) athletic studies and achievement from them, just as a conservatory may select students based solely on musical skills, and may demand only (or overwhelmingly) musical studies and achievement from them. (I imagine that many conservatories also have serious academic components, but we wouldn't think there's anything outrageous if they let in brilliant musicians with lousy SATs and high school grades, or even if they decided that there'd be no academic criteria for continuing one's musical education, no matter how awful one is at other subjects.)

     A student in the School of Athletics would also be allowed to take classes in other departments, if he wants to, and if he's prepared for them -- and many students, especially ones who are outside the high-profile sports, will. But he would also be allowed not to take the classes, or to take the classes even if he flunks them, or to take the classes at another school (lower-ranked university, community college, or trade school) that's more consistent with his academic qualifications and interests. The result: No pressure on universities to relax their academic requirements, or to cheat on those requirements; and more freedom for students, who get to decide what, where, and how much they'll do academically. I'd also allow the athletics students to be paid, if the program makes money for the university, but that's a separate question.

     But wait, some ask: Don't these students deserve an education that will let them get a decent job if they don't make it in pro sports (since the overwhelming majority of them in fact won't make it)? Well, sure -- but why should this vocational education be at the same university in which they're studying athletics? The majority of Americans do not go to a four-year university; for some, the problem is lack of money, but for others, it's lack of interest, knowledge base, or intelligence. Assume UCLA gets a first-rate basketball program again -- it will attract some of the best basketball students in the country, and some of them will have what it takes to succeed in UCLA academics. But others' academic capacities and interests will be more suited to an academically less selective university, or to a community college, or to a trade school.

     Say that, setting aside basketball, a player's next most lucrative career is as an auto mechanic. If it weren't for his basketball skills, he'd go to trade school to be an auto mechanic. Now that he has a scholarship to study basketball at UCLA (and play basketball for UCLA), why should he study sociology or kinesiology or whatever else instead? If we're really concerned about his having a paying job if he doesn't make the pros, we should be paying his way to learn to be an auto mechanic, and not to study sociology -- and he might well prefer to learn to be an auto mechanic, and not a sociologist. Of course, if he's also academically capable of studying sociology at the same level as fellow UCLA students, he should be able to do that; and if he's interested in sociology but isn't as good as other students, he might prefer to take classes at a less selective university, since he'll probably learn better there, in classes that are more calibrated to his level of knowledge and ability.

     Seems to me like a win-win-win situation -- a win for the athletics students, a win for the institutions, and a win for other students who could take the place of those athletes who aren't suited for the university's academic program (and again I stress that many might be suited both for the athletics and the academics -- though many would not be).


KURDS REVISITED: Timothy Noah asks, How screwed are the Kurds? Josh Marshall says that the U.S. "publicly sold out the Kurds" to get the now-botched deal with Turkey. David Adesnik says it wasn't a sellout; Matthew Yglesias is unconvinced.

I've already said my piece on this, in my TNR piece last week; we're trying our best to sell the Kurds out very badly, and while a successful deal with Turkey would make the war go more smoothly it would make the postwar go much, much worse. I'm working on a long post responding to some of the correspondence I got about ethnic divisions and federalism (as well as one about linguistic divisions and democracy-- in both cases the problem is trying to figure out how to write a blog post instead of just reproducing my long academic writings). But I have one question on the war-and-peace front. Now that the U.S. has indicated that protecting Kurdish autonomy is not one of our goals in the war, mightn't Turkey proceed into Iraq once the war starts even without a deal with the U.S.? It could continue to claim that it was protecting its border against refugees and the smuggling of arms to the PKK. It wouldn't have the comparative safety of moving behind the U.S. armored force; but the Turkish army has armored divisions of its own, and the Kurds don't. The U.S. was ready to give its blessing to a Turkish incursion, but Turkey might be willing to go in even without that blessing-- now that it knows that the U.S. doesn't actively oppose Turkish goals in northern Iraq.

In other words, we might have managed to sacrifice Kurdish autonomy to Turkish arms, without even getting the military benefit of a Turkish staging ground.


SHORT LEGAL AFFAIRS PIECE BASED ON MY SLIPPERY SLOPES ARTICLE: The piece is now up at the Legal Affairs Web site, in HTML -- check it out there if you had trouble reading the PDF version.


SPORTS: I found something utterly demoralizing in this morning's NYT article about the increasing frequency of utterly demoralizing blowouts in high school sports-- but it wasn't the scores of the games. It was this:
"I am very concerned about these blowout games, because I think they are increasing in number and getting worse," said John Johnson, communications director for the Michigan High School Athletic Association. "The purpose of school sports is to educate kids. That's what makes us different from colleges and the pros." (emphasis added.)


THE PLEDGE OF ALLEGIANCE: As I mentioned when the pledge decision was handed down last summer, I think the Ninth Circuit's decision, while plausible, was mistaken, and that it will be reversed. But it's important not to overstate the case against it, as the Wall Street Journal (one of my favorite publications) unfortunately did in its opening paragraphs:
Anyone who wants to know the stakes in the battle over judicial nominee Miguel Estrada can simply observe the ongoing spectacle of the Ninth Circuit Court of Appeals. Last week the 24-member court refused to overturn the decision last year by one of its three-judge panels declaring the Pledge of Allegiance unconstitutional because it included the words "under God."

We can hope the Supreme Court eventually reverses this judicial invention, but until then schoolkids in the nine states covered by the Circuit will be barred from reciting the Pledge after March 10. This is a splendid message to send just as U.S. troops are about to go to war to defend the principles the Pledge extols.
Well, let's begin with a small point: Schoolkids are not barred from reciting the Pledge; their teachers are barred from leading them in a Pledge that contains the words "under God." The rest of the Pledge -- "I Pledge Allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation, indivisible, with liberty and justice for all" -- may still be said.

     And this point leads to a much larger one, which relates to the Journal's concern about "U.S. troops [being] about to go to war to defend the principles the Pledge extols." Exactly what principles are U.S. troops asked to defend? Liberty and justice. Whose security are they asked to defend? Among other things, "the Republic for which [the flag] stands." What other things have past American soldiers had to defend? The "indivisib[ility]" of our "one Nation."

     But I hope that our soldiers are not being asked to defend the one item that the Ninth Circuit said may not be included in the teacher-led Pledge, which is our nation's being "under God." Theologically speaking, I don't think they can defend this, since our nation is or is not under God whatever our soldiers might do. Practically speaking, I don't think it's wise for us to be fighting wars over "under God." Morally speaking, they ought not be required to defend this. We can exhort our soldiers to believe in "liberty and justice," and even demand that they do so; and we can rightly say that a soldier who doesn't believe in liberty and justice is a worse American than one who does. But we ought not exhort our soldiers to believe in God, we may not demand that they do so, and atheist, agnostic, polytheist, or pantheist soldiers are just as worthy as monotheist ones.

     I think the Journal is ultimately correct that the courts ought not find something to be a proscribed "establishment of religion" when it's part of a long (and fairly generic) tradition of governmental acknowledgment of religion in patriotic contexts; this question of the relationship of tradition and constitutional law is quite a complex one, too much so to discuss at length here, but appeal to this tradition is quite legitimate. Still, I think it's important to keep the issue in proper perspective, and recognize that "under God" is not the heart of the Pledge (which, incidentally, is one reason why it's permissible).

Monday, March 03, 2003


MORE ON LAW JOURNALS AND TECHNOLOGY: Reader Phil Bennett writes, apropos my post last week:
I am the current (and outgoing) Editor-in-Chief of the Public Contract Law Journal at the George Washington Law School. Prior to law school I was a system administrator for a couple years and a web programmer for about
eighteen months.

During my first year on the journal as a staff member, I was frustrated by all of the inefficiencies in our processes. There was very little accountability for staff members who did subpar work, and all edits were done on a hard copy of the article or note, which later had to be transcribed into the electronic copy.

I took it upon myself to force our journal to become one that embraces technology and utilizes it to the fullest. I started out by mandating all editing be performed on electronic copies using the MS Word track changes feature. In order to prevent loss of data or corrupting edits, we utilize the MS Word versioning feature which creates a new version of the document each time it is changed and closed. That way, if the document somehow gets corrupted, we can go back to an earlier version. In order to achieve accountability for the electronic edits, I wrote a little VB script that runs each time MS Word is opened in the office that requires the student to type in their name. This script sets the document properties to their name so that each change a student makes indicates that it was made by them. After staff members make suggested changes, the editor in conjunction with the author either accepts or rejects them. This electronic-only editing has saved us many hours throughout the year. I'm not aware of any other journals doing it
this way, but I could be wrong.

Our journal is atypical in that we are collaboration with the Section of Public Contract Law of the ABA. Each article is assigned both an ABA editor and a student editor. I found early on that keeping track of changes to the pipeline and distributing these changes was a organization nightmare. Thus, I decided to create an Intranet/Extranet for the journal which would enable us to spend less time with all of the administrative BS. Its purpose was to aggregate all relevant information about the journal in the same place. Each student member has an account, and it has become a vital part of our journal. All assignments are distributed and tracked via the intranet, and remote access to all journal documents is available over it so that our editors can work from home.

We recently selected next year's board. One of the questions we asked during interviews was what each member thought was especially good about the journal and what could be approved. Almost each candidate said that they viewed the Intranet as a one thing they would not change. (Although, granted, they could have been simply attempting to get a favorable vote from me.)
So this is just a reminder of a basic truth -- change (both good and bad, though this seems good) in an organization generally happens when someone who's high up in the organization decides to invest a lot of work and some amount of butt-kicking.


MORE ON KOSHER LAWS: Reader Laurence Rothenberg writes the following; I quote it not because I agree with its theology -- I have no views on the proper theology here -- but because I think it correctly identifies the question as a contested theological one, which provides all the more reason that secular courts ought not get involved in deciding it:
You're right about the libertarian impulse here. There's no need for state supervision, because anybody who keeps kosher up to halachic standards is sure either to shop in a kosher supermarket approved by the local vaad harabbonim (rabbinic council) or to check the hashgacha (mark of supervision) on a packaged product bought at a non-kosher store. Some are legit and some are not, and people are generally aware of which is which or they ask their rabbi if they come across something they haven't seen before.

The real issues here are beyond that and go into politics, specifically the battle over what is real Judaism. The Orthodox want to reaffirm our ownership of the "kosher" label, and, more generally of the "Jewish" label. I'll be forthright and say that the vast majority of Orthodox Jews simply don't consider Reform and Conservative to be Judaism (the people of course are, so long as their mothers were Jewish, but that's a continually declining portion of Reform population.) Therefore, someone who is not keeping halacha but claims to be presenting a "Jewish" view or perspective is a religious affront, a hillul hashem (desecration of the Name of G-d), misleading both unlearned Jews and unaware gentiles. At the same time, the REform and Conservative are being far more aggressive about presenting themselves to unlearned Jews and to the gentile world as authentically Jewish. Hence, the desire of a Conservative rabbi to challenge the Orthodox control of the New York kosher certification board. (And one day, who knows, a Reform rabbi might actually declare pork to be "kosher." After all, since they don't respect halacha at all and say that no one needs follow kashrut, then there's no problem saying that pork is in fact kosher. That's what they've done with intermarriages, if you'll pardon the base analogy.) The Conservatives have also produced videos for TV stations about Jewish prayer and study that present misleading information about halachic standards (showing woman leading prayer, no metchitza between men and women, wearing tefillin, improper calling up of someone to the Torah, etc.)

The Conservatives are doing this because they are falling by the wayside. Those Jews who wish to be observant are joining the Orthodox in great numbers (the ba'al t'shuva, "returnee to the faith," phenomenom) and those who don't want to be observant being Reform. The Conservative movement, after all was founded on the idea that Orthodoxy would disappear. Turns out that Conservative Judaism is disappearing, becoming more and more like REeorm both in the practice of its laity (i.e., non-observance) and in the ideology of its rabbis (i.e., rejecting the Torah as divine; on the verge of ordaining openly gay rabbis). That's why many people, myself included, have left the Conservative movement to become Orthodox. (From the Conservative camp I attended, the counselors and campers are now mostly either intermarried or Orthodox.) Hence the need for the Conservatives to reassert that they are really Judaism and are really concerned about halacha.

And these issues do raise serious concerns. Hebrew national is not kosher. Nor is the Triangle K found on many chips, such as Tostitos and Frito-Lay. Nor is the "half-moon K" found on many candies. Orthodox Jews don't eat those products. But there are lots of people who are nominally kosher -- Conservative Jews or others who "keep a kosher home" -- who do eat them and who aren't aware that what they're doing is wrong. I was in LA recently and stayed with an old friend in Orange County who thinks he keeps kosher, but I could barely eat anything in his house. And the misleading of Jews is a very serious thing. Not that the state should get involved at all. But the battle over "what is kosher" is just as serious as that over "who is a Jew" and "what is Judaism."


GOTTA GET A GET: I think that the Establishment Clause, properly interpreted, probably does prohibit secular courts from ordering orthodox Jews to give their spouses gets (see Jacob's post below); however, there is some controversy about this in lower courts (the Supreme Court hasn't spoken). Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J.Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).

UPDATE -- ALTERNATIVE DISPUTE RESOLUTION: My friend (and fellow Kozinski clerk) Victor Fleischer writes:
If the Establishment Clause means the courts can't help, one can always enlist the help of Tony Soprano (who is appropriately called a golem in this episode).


ORINISMS. I will go farther than Orin does two posts below: I look forward with a fair degree of confidence to reports saying not only that good information has been found in Mohammed's house, but that he himself has spilled the beans (whether he actually has or not). I think of such reports as Orinisms.


CHURCH-STATE CONTINUED: I agree with everything Eugene said below about courts being kept out of essentially theological questions. I note that this is a fascinating legal arena, with lots of hot-button topics, lots of deeply perplexing problems, and more. A few choice items:

1) Under Orthodox Jewish law, a man can unilaterally decide not to grant a religious divorce to his wife, even if they are civilly divorced. (A woman cannot unilaterally deny a get to a man.) A woman without a get (referred to as an agunah or chained one) cannot remarry within Orthodoxy; even if she civilly remarries, Orthodoxy considers her to be committing adultery and any children produced by the remarriage to be illegitimate (which carries real penalties). Sometimes a man will use the threat of denying a get in order to extract especially favorable conditions for the civil divorce (financial support, custody, etc). In some jurisdictions the courts attempt to take account of this and balance out the imbalance built into Orthodoxy during divorce. Some jurisdictions have even ordered men to grant a get on pain of contempt charges or the local equivalent. Almost any judicial notice of the problem is blocked in the United States, by the no-theological-questions doctrine Eugene described.

2) As that item suggests: the United States adheres to a really unusually strict version of the doctrine; many countries that we think of as quite religiously free do without the doctrine altogether.

3) The church-property cases, and closely-associated questions about schisms and church leadership, gained new significance during the Cold War. Many of the national Eastern Orthodox churches fell under direct Communist control in their countries of origin (i.e. the Russian Orthodox patriarch was under the direct control of the Politburo). The American branches of those churches sometimes attempted to schism, secede, or declare themselves the guardians-in-exile of the true faith.

4) Eugene noted the significance of internal church procedures, once the no-theological-questions doctrine is in place in the court. This raises the question: may the courts intervene in order to uphold the stipulated procedures against internal fraud or malfeasance? Right now the answer is "no"-- it's been held that even doing that much required an illegitimate state interference in internal church governance. There's no other form of association or corporation whose adherence to its own internal rules of governance and procedure the courts refuse to monitor.

5) Questions such as these, and a particular church-property case in Scotland, prompted one of the most important but underappreciated early 20th century works in political theory: John Neville Figgis,
Churches in the Modern State.


The names of possible al Qaeda operatives, including some believed to be in Washington and other U.S. cities, were found among a "treasure trove" of material recovered during Saturday's capture of al Qaeda operations chief Khalid Shaikh Mohammed in Pakistan, sources told CNN Monday.
Let's hope there is more, much more. Of course, what we are hearing is at best only a very stylized version of reality. There are two big questions here: what our guys know, and what the press is reporting that our guys know. We can safely assume that a lot of activity is going on right now, as al Qaeda members try to figure out what our guys know, and our guys try to identify the al Qaeda suspects they know and smoke out the ones they don't. The process is critically important to the security of the United States, and yet all hidden from public view.


ANTICOOPERATIVE EFFECTS OF LAW: This InstaPundit post reminds me of the "anti-cooperative effect" question, discussed in this fortunately fairly short article: Sometimes, overly demanding laws or overly assiduous law enforcement can be counterproductive, because it deters people from cooperating with law enforcement. This is just one possible kind of effect; it may often be outweighed by the benefits of heightened enforcement, so the risk of anticooperative effects isn't by itself enough to condemn a proposed policy. But it is a sort of effect that people too often ignore:
Things between the city and club owners have gotten so bad that some owners are even reluctant to dial 911 -- not because, pace Public Enemy, it’s a joke but because they’re issued a “disorderly premise” violation every time they seek assistance. “Very often you do everything in your power not to call 911,” says Rodrigue. “What could be more dangerous than that?” One owner says he got a violation after he called cops to stop a man from beating his girlfriend with a pay-phone receiver.
. . .


REDUCING THE TERM OF COPYRIGHT PROTECTION? I think there's much to be said for some proposals that would reduce the term of copyright protection -- my sense is that a shorter term might well enrich the public domain while providing more than ample incentives to create new works. But I think it's worth remembering that retroactively reducing copyright protection means cutting back on someone's property rights, which I think shouldn't be done lightly, and would in any event require compensation under the Takings Clause (though sometimes this compensation may properly be quite slight, especially if it's compensation for a lost income stream that starts many decades in the future).

     This is so even if one thinks that the original grant of the property right was unwise or unfair. Once the legislature offers people property in exchange for something (say, for creating a work), it shouldn't go back on that deal. Reducing protection for new works is quite proper; that's just telling people that the deal for future creations is different from the one for past ones. But reducing protection that was promised in past deals is generally not proper. (One possible exception is retroactively cutting back on previous retroactive extensions of protection -- if someone created a work in reliance on a life+50 term of protection, and then got a windfall of 20 extra years, then taking away this windfall might not be a problem, though even there I'm hesitant to approve of legislative reductions of property rights.)

     But wait, some may ask -- isn't what's sauce for the goose sauce for the gander? If Congress can retroactively lengthen protection from life+50 to life+70, thus diminishing the future public domain, why can't it retroactively shorten it to life+30, or to less? The answer is that the two are different birds: The Takings Clause gives special protection to private property; it doesn't give special protection to the public domain. We see this as to land -- the government was free to give away public lands in the West to homesteaders, but it doesn't follow that it's equally free to take them back once they've been made private. Likewise as to intellectual property.

     Of course, this is mostly theory -- at least right now, there's no indication that Congress would reduce the term of copyright protection; rather, the fear is that 15 years from now, when Mickey Mouse is again in danger of falling in the public domain, Congress will just lengthen the term yet again. But given that people have proposed reducing the term of protection (and, who knows, perhaps after years of this argument being made, legislative attitudes might in some measure shift), it's worth thinking about what sort of reduction would be proper. Prospective reduction of protection for new works, I suggest, might well be fair; but retroactive reduction is much more troublesome, and if done without compensation, is unconstitutional.


IF ONTOGENY RECAPITULATES PHILOGENY, does ontology recapitulate philology?

UPDATE: Nothing new under the sun -- it turns out that philosopher Willard Quine wrote the same line years ago.

FURTHER UPDATE: Nothing new even under this blog -- Sasha wrote the same in December, right here. Drat. I'm pretty sure I came up with it independently, but who knows?


LINK BUTTON: Reader Dave Hill passes along this .PNG link button, for those who prefer to use such buttons to indicate links rather than just using plain text. Here's what it looks like: , though of course you can scale it with the height and width keywords. Use it in good health.


KOSHER LAWS: A reader e-mailed me to ask why I thought there was an Establishment Clause with kosher enforcement laws. Here's a brief summary of the argument (and I think this is now the orthodox view among the courts that have considered question, see, e.g., Barghout v. Bureau of Kosher Meat & Food Control (4th Cir. 1995)).

     From the late 1800s on, the Supreme Court has pretty consistently held that secular courts ought not decide questions of religious doctrine. Most of these cases involved disputes over whether or not a church was adhering to orthodox teachings of its denominations. In many states, church property was seen as being held only on condition that the church remains orthodox; if two rival groups were claiming the property, the property should go to the group that adhered to the traditional tenets of the denomination. This wasn't a silly rule -- it seemed likely to properly reflect the preferences of the original donors.

     Nonetheless, the Court has repeatedly held that enforcing this rule violated the Establishment Clause, because
[It is] wholly inconsistent with the American concept of the relationship between church and state to permit civil courts to determine ecclesiastical questions. . . . "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.

     Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes; the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.
     Now in a sense this rule left religious donors at some disadvantage compared to secular ones. A secular donor could attach secular conditions to his bequest ("I leave property to the ACLU, but only so long as it takes the view that campus speech codes are unconstitutional"), and while some such conditions might be too vague to be effectively administrable by courts, others could be so administered. But a donor couldn't attach conditions that require courts to interpret church doctrine ("I leave property to the Presbyterian Church, but only so long as they adhere to their orthodox teachings about salvation").

     Nonetheless, this distinction in treatment was necessary to prevent secular courts from deciding theological questions; and, as the Supreme Court pointed out, donors could still structure their bequests, trusts, contracts, and other instruments in ways that enforce their wishes: For instance, they could appoint a trusted trustee who would make these decisions, or provide for arbitration by a specific church court, to the decisions of which secular courts could then defer.

     I think this is the right rule for church property disputes, and I think it also applies to kosher enforcement (or hallal enforcement or whatever other schemes that states might end up having to set up once they embark on the project of enforcing kosher laws). As I mentioned last May,
     The kosher enforcement laws are, I think, well-intentioned: They're aimed at preventing a form of fraud, one that my Orthodox friends tell me unfortunately does happen, and that is understandably seen as particularly offensive. Jews who keep kosher naturally feel grievously deceived and defrauded when they learn that they have been led to unwittingly consume unkosher food. Moreover, if they bring the food home, they'd have to purify the plates and flatware used to eat it -- and a rabbi friend tells me that some material, such as expensive china, can't be purified and has to be thrown out.

     But the court was right to strike the law down: It's just no business of the government to decide the quintessentially religious question of what really is kosher and what isn't. (The Department argued that this wasn't a problem because "no one disputes the meaning of the term 'kosher'" -- you'd think New Yorkers would realize that we Jews dispute everything.)

     And fortunately, it turns out that kosher enforcement laws aren't really necessary to protect people from fraud. Neither is it necessary to enlist more convential laws barring false statements about one's goods; enforcing those laws would still require courts -- government officials -- to decide whether the label "kosher" is accurate.

     Rather, people can rely on trademark law. There are kosher certification authorities, such as the Union of Orthodox Jewish Congregations of America, that license special certification marks (in the Union's case, a capital "U" inside a circle) to those businesses who comply with the Union's rules and subject themselves to the Union's investigations. Individual rabbis do the same for local restaurants. If someone uses the certification mark or a rabbi's name when they aren't licensed to do so, they're violating trademark law -- and the government can punish them for violating this secular law without any judgment about whether their actions also violated religious law.

     The religious judgments (did so-and-so complying with kosher laws?) are purely in the hands of religious authorities. The secular authorities have to pass only secular judgments (did the person use the certification mark or the rabbi's name without permission?). The result is separation of church and state, a phrase that's often abused, but that is quite proper here. (Of course, there might still be concerns about the certification authority, whether an organization or an individual rabbi, erring in its certification decisions -- but the same concerns apply to the Kosher Law Enforcement Division.)

     And this, I think, illustrates a broader point: Separating religion and state is best accomplished when the government takes no cognizance of religion -- gives it no special benefits and imposes on it no special burdens or exclusions. Trademark law is equally available to everyone, religious or not. It provides a benefit to religious organizations, but only on equal footing with other organizations.

     Such equal treatment is proper, whether as to trademarks, income tax exemptions for charitable contributions, or school choice programs. But special benefits for religion, especially ones that require the government to make quintessentially religious judgments, are generally not proper.
UPDATE: A reader asks -- what about the truly uncontroversial kosher frauds, such as someone labeling pork kosher? I agree that this is the most appealing case for some legal punishment; but the difficulty is that the very process of distinguishing the controversial questions from the uncontroversial ones is likely to itself breed theological controversy.

     The rule for church property disputes is simple: Even uncontroversial theological disputes are beyond the secular courts' power to determine. If a bequest says "To the XYZ Religious Foundation, so long as they acknowledge that Jesus is the Son of God," and the XYZ Religious Foundation converts to Judaism, it's pretty clear that the condition in the bequest no longer applies -- but I suspect that courts won't decide the dispute. Why not? Because if they do decide this dispute, they'll be called on decide still others where the issue is more controversial -- and in religious questions, controversy arises in some of the most unexpected questions. (You'd think it would be uncontroversial that "thou shalt not seethe a kid in his mother's milk" says nothing about chicken in cream sauce, but you'd be mistaken!)

     Likewise, I think, as to kosher, hallal, "consistent with Greek Orthodox fast day requirements," and so on: Courts should leave all these decisions to private entities, backed up with trademark rules that require no religious determinations (you can't put a circle-U on food without the permission of the Union of Orthodox Jewish Congregations of America), rather than decide which religious claims are "uncontroversial" and therefore suitable for secular courts to verify and which are "controversial" and thus beyond the secular courts' power.


ABC NEWS RADIO (WITH SAM DONALDSON): I'll be on it at 11:05 Eastern (that's about 15 minutes from now ) talking about the Pledge of Allegiance case.

Sunday, March 02, 2003


WHAT A REMARKABLE THE GUARDIAN EDITORIAL: Mark Kleiman spots it. Key phrase: "[T]here is a case for saying that Germans have at least as strong a democratic tradition as Americans." Yes, that's what it says.




TRADER JOE'S is opening up a new store near my house tomorrow -- hooray! I love that place.


AN ENTERTAINING DEBATE ON JURISPRUDENCE: Yes, really. Check out the latest over at Lawrence Solum's Legal Theory blog.


The average age of presidents' federal appeals court nominees at the time of their confirmation:
52.9 Franklin D. Roosevelt
55.1 Harry S Truman
55.9 Dwight D. Eisenhower
52.7 John F. Kennedy/Lyndon B. Johnson
53.4 Richard M. Nixon/Gerald Ford
51.8 Jimmy Carter
50.0 Ronald Reagan
48.7 George H.W. Bush
51.2 Bill Clinton
50.5 George W. Bush (includes only those confirmed in the 107th Congress)
50.1 The current average age of Bush nominees awaiting confirmation or a hearing


THE 50TH ANNIVERSARY OF STALIN'S DEATH IS Wednesday, March 5. To mark the occasion, check out The Museum of Communism, a site put together by GMU prof. Bryan Caplan.

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