The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Saturday, July 05, 2003


When is Faux Real? (Does anyone read Blogs over a three-day weekend in the summer, and if so, why?)

Saw my first "tribute" band July 3d at the Hampton Beach Casino Ballroom. It was Pink Voyd, whose website describes them this way:
New England's ultimate Pink Floyd Tribute Band, bringing the sights & sounds of Pink Floyd to a venue near you. Hear the best of Floyd, from record-perfect copies of your favorite songs to their psychedelic space jams. A true 4-person lineup recreates these timeless classics without sequences or backing tracks. Impressive computer controlled lasers, video projection, and robotic lighting provide a multimedia spectacle for which Pink Floyd is so well known. Audiences are mesmerized by this unforgettable production. It's like you're center stage at a real PINK FLOYD show!
I have to say, they are right. Though I have never seen Pink Floyd live, an element of verite was added by the fact I had seen Jethro Tull and Moody Blues on the same stage in the past few years. And these guys in Pink Voyd were note for note, with the energy of a live concert and lots of special effects. Only on a couple songs did a vocal lack range. But as I listened, I could not help but think. . . .

What is real, and what is faux? They weren't really Pink Floyd. But they were really playing all the Pink Floyd songs I like pretty much the way I remember them. And I had never seen or heard the real Pink Floyd in person, only their recordings. So which was "real"? Obviously both are literally real, but then what is "faux"? These guys playing their hearts out in front of me, or my ancient vinyl LPs with electronic analogue impulses from a studio session 30 years ago? Then I thought. . . .

Though I really enjoyed their concerts, Jethro Tull and Moody Blues (each of which I have seen twice in the past few years) or ELO (without Jeff Lynne), are all old baby boomers. In some cases balding and overweight. In other cases dead or missing and replaced by new musicians. Ian Anderson of Tull has lost much of his range due to some sort of vocal cord tear. When the Moody Blues played Red Rock, they had another drummer and guitarist to give the band more oomph. (When I saw them, they were just the originals plus an orchestra and female singers.) The guys in Pink Voyd were young. The age that Floyd was in the 70s. So which band would be more "real" TODAY? 50-60 year old men pretending they are still young, or twenty something "kids" pretending they are Pink Floyd? Are both faux? Is nothing "real" except a 30 year old ghost that no longer exists? But then I thought. . . . .

The Moody Blues, Jethro Tull, ELO and Pink Floyd were the best of the heavily studio produced album bands of the early 70s--which is why the musically PC of those days disparaged them, preferring instead Van Morrison, Neil Young, Dylan, and anyone else who could not sing very well but who was more "authentic." What is amazing about seeing any of them in person now is realizing that they were a real BAND. Just four or five guys could make all those sounds that on the albums sounded almost unreal. I confess, never seeing them live, I didn't fully accept them as bands. More like disembodied music producers. The RECORDING was what was real, not whoever might have produced it. Seeing them perform makes THEM real for me as well. So when I listen to old recordings, I now picture them, a band, real people. Aging sure, but real. Then I thought . . . .

Is this why we crave live concerts, when we can always pop a perfect performance into our CD player (or just scroll to the right entry on our Ipod)? Why DO we want to hear either aging or young musicians playing songs we know by heart and can hear as often as we like under nearly ideal conditions? And why did the 36 year old guy sitting two seats away from me know every note and go nearly berserk as the music played when he was only 3 when they were first recorded? Why do we crave "live"--so much so that we buy "live" recorded albums? Spontaneity is great--but audiences do not like it if their favorites deviate too much from the originals . . . or play too many new songs. So it's a bit of a mystery to me.

(In the words of Dirty Harry), I know what you're thinking. With all this thinking, how could he enjoy the music? Well, thinking all the time can be a distraction--which is why some like to alter their brains with chemicals. But except for the woman immediately behind me who screamed the entire night into my ear at the start of every song--Whoooowho--I was able to get into the music just fine and really enjoyed myself. Listening to the Boston Pops, it is harder for me to concentrate because they are so much more sedate and soothing. Speaking of which. . . .

I saw an amazing performance by fiddle player Natalie MacMaster with the Boston Pops at Symphony Hall a week ago. She was awesome. I had no idea I liked Celtic music. It was a whole lot more enjoyable that hearing the Pops play "Let it Be" or "Send in the Clowns." Listen to some selections on her website like this one. I ordered her new "live" album, which gets me to thinking . . . .

Friday, July 04, 2003


UPDATE ON THE SPITTING-ON-POLICEMAN CASE: I'm out of town and will be blogging little or nothing this weekend, but I thought I'd quickly mention that it does now seem that there was, in the words of a proviso in my original comment, "some pretty important background that's not in the story (such as a long criminal history, or some other aggravating circumstance, which might make the sentence at least somewhat more defensible)." Here's Matt Rustler's update to his original post; and the Houston Chronicle (thanks to reader Gerald Dearing for the pointer) -- the defendant had been convicted of rape and burglary in the past, and apparently bit the police officer as well as spitting on him -- and, I'm told, the AP have stories that go into still more detail:
UPDATE: Ken Lammers at CrimLaw has done more research than either CNN/Reuters or I did, and the result is something of a lesson about the need to fact-check (or perhaps I should say "law-check") news reports, even from reputable sources. As Ken points out, the Oklahoma statute that punishes spitting on a government employee doesn't specify the punishment for the crime, instead just declaring it a felony. Thus, the general provision for punishment of felonies should apply--and it provides for a fine of up to $1000 and imprisonment for up to two years, not life in prison. Ken surmises--almost certainly correctly--that the judge imposed the sentence in this case pursuant to the State's multiple offender statute. That isn't quite the same as sentencing the defendant to life in prison "for spitting on a police officer," I think. It might be more accurate to say he was sentenced to life in prison for being a recidivist jerk. (The original CNN/Reuters article did give some hint of this when it mentioned the defendant's previous convictions, but asserted that the spitting in and of itself was punishable by a life sentence.) This sentence may survive appeal after all.
In any case, that's pretty much it for the weekend. Responses to e-mails will be even slower than usual.


A question of trust. The Bush administration, and specifically its Department of Defense, has announced
that it plans to hold secret military trials of six people it has designated as unlawful enemy combatants. It won’t identify them or give details. We are supposed to have faith, I gather, that there are sufficient reasons for these measures, and that we would agree with the decision if we knew the facts.

     This is an example of what I had in mind when I said a month ago that we should keep careful track of occasions when the administration attempts to do controversial things while withholding details about the justifications for them. It would be nice if those occasions were followed later by revelations that vindicate the faith requested from the public, causing us to say, “It’s a relief to see that the claims they made turn out to have been so well-supported, and great also to see that the officials involved were so vigilant not to abuse the unchecked powers they enjoyed because of the secrecy.” I do not rule out the possibility that some such reactions may yet become possible with respect to the invasion of Iraq or the detention practices following September 11, but so far I’m not impressed.

     I therefore am not prepared to make generous assumptions when the same general strategy is now being tried with respect to these prisoners: “We regret to say it, but it’s safest if we explain as little as possible about these prosecutions. Don’t worry, though. We wouldn’t be doing this if it weren’t really important (you would understand if you knew what we know), and you can count on us to provide fair trials.” Sorry, fellas, but I’m fresh out of free passes. I’d like some more sunlight. And I hope that the courts may share some of my skepticisms if these prosecutions are challenged there.

Thursday, July 03, 2003


My NPR Appearance is now on line: You can listen to my appearance on NPR's Talk of the Nation discussing "the pursuit of happiness" by clicking here and then pressing the link to "Listen to Thursday's Show." (Or you can try clicking here for a direct link to the show.) I don't make my appearance until 24:30 into the 36 minute program. If you scroll down there is also a link to Stan Freiberg's classic rendition of how Thomas Jefferson may have convinced Benjamin Franklin to sign the Declaration of Independence.


Why I oppose the proposed Victims' Rights Amendment: I have a piece about this at, where I'm finishing up guest-blogging for Glenn Reynolds. Here are some key paragraphs:
Though I’m a pretty solid law-and-order Republican, I oppose this amendment. I say this even though I fully agree that the law should protect crime victims -- something that the laws of all states already aim to do in various ways.

Victims’ rights, I believe, should continue be protected by state laws, and not by a federal constitutional amendment. The citizens of each state are now free to choose what level of protection to give crime victims -- and, after all, voters know they may one day become crime victims, so voters and legislators have plenty of incentive to provide ample protection. The Framers designed our Constitution to allow this sort of state-based approach, and they were right to do so. . . .

[I] think federalism is valuable here, for two practical reasons. The first is that conditions -- crime rates, government resources, citizen attitudes -- do vary considerably from state to state. Constitutional rights aren’t free: They require the government to spend time, effort, and money providing extra hearings, longer hearings, restitution enforcement systems, and the like. These resources may well be taken from other parts of the law enforcement system. A prosecutor who’s involved in a victim’s rights hearing isn’t involved in prosecuting other cases; and when there’s a shortage of prosecutors, there may be more plea bargains, so that criminals get out of jail earlier and then victimize still more people. Californians may be willing to run this risk in many cases, or appropriate more money to fund these programs. Citizens of Vermont, given their budgetary and moral priorities, might prefer to have narrower programs. Is there really that compelling a reason for Californians to impose their preferences on Vermonters, or vice versa? (Conversely, if the costs I suggest are tiny, then presumably Vermonters would adopt these victims’ rights proposals on their own, with no need for a federal amendment.) . . .

Second, the proposed amendment isn’t just a grant of extra rights to victims. It’s also a transfer of decisionmaking power from elected state legislators in 50 states to (ultimately) the nine U.S. Supreme Court justices. It will be federal judges, after all, who get to decide what constitutes “reasonably [being] heard,” “du[e] consider[ation],” “unreasonable delay,” “just and timely claims,” “substantial interest,” or “compelling necessity.” Now I don’t want to malign federal judges; they’re generally good people, and while they make mistakes, so do state legislators. But state legislators’ mistakes aren’t that hard to correct — all it takes is enacting a new statute.

And because we have 50 states, legislators and voters in one state can see what’s being done in other states, and what works and what doesn’t. The result is a sort of evolution through human selection: Laws that prove too costly, too vague, or counterproductive can get replaced. Laws that prove effective can be adopted in other states. And as time goes on and new needs arise, state legislatures can adapt to these needs. The constitutional decisions of federal judges, on the other hand, are very hard to change. A new constitutional amendment to fix specific problems would only pass if it got votes from 2/3 of the House, 2/3 of the Senate, and 3/4 of the state legislatures. The courts might be persuaded to reverse themselves if their decisions prove impractical, but they’re usually reluctant to do so. (Every so often we hear about the Supreme Court reversing its own precedents, as in last week’s sexual rights decision, but that’s actually pretty rare.)

I’m not trying to romanticize state legislators: They’re often wrong, and they’re often slow to admit they’re wrong. The evolution that I describe operates slowly and imperfectly. I just think that, for all its flaws, the state legislative process will on balance yield sounder results than the federal judicial process.

Some people say that the Constitution should be venerated, and that the work of the wise Framers shouldn’t be sullied by frequent amendment. I don’t really buy this. . . . Still, one of [the Framers'] core judgments was indeed sound: Not everything should be done by the federal government, whether by the federal Congress or federal judges. . . .
More on all this at


Who would have guessed on 9/11/01 that almost two years later, there would have been no successful terrorists attacks on U.S. soil since then? Of course, you never know if today is another September 10th, but on the whole I think the remarkable story of the last two years is what hasn't happened. There have been no terrorist attacks on U.S. soil. And despite all the news coverage to the contrary, there have been no major losses of civil liberties, either. By my count, there haven't been any law enforcement abuses directly attributable to the Patriot Act in the 20 or so months since it was passed (at least that we know about). Probably the most troubling area has been immigration and detention practices (see, e.g., here); troubling indeed, but on the whole probably less severe than many expected. Given the predictions and fears that many of us have had about terrorist attacks and the losses of our civil liberties, I think that going into this July 4th weekend, we should have a cautious attitude of "overall, so far, so good." And I think that's something to celebrate.


Dracula theme park!


Life sentence for spitting on police officer: Well, this definitely seems quite excessive, at least unless there's some pretty important background that's not in the story (such as a long criminal history, or some other aggravating circumstance, which might make the sentence at least somewhat more defensible). I don't believe that courts should set it aside on the grounds that it violates the federal Cruel and Unusual Punishments Clause, for constitutional reasons roughly the same as those described in the most conservative opinions in the Three Strikes cases -- I don't think the Clause should be read as speaking to length of confinement, or requiring a proportionality analysis of the gravity of the offense and the length of the term. But I do hope, and expect, that the Oklahoma courts will set this sentence aside on state law grounds. (Thanks to Matt Rustler for the pointer.)


Terror suspects to be released?: Yesterday in Alexandria, Virginia, a federal magistrate judge issued a ruling suggesting that he didn't find the government's terrorism case very persuasive:
  A federal judge delivered an unusual rebuke to the Justice Department in a major terrorism prosecution today, ruling that four men accused of having links to a Kashmir terrorist group should be freed from custody until their trials.
  The judge, Magistrate Judge T. Rawles Jones Jr., said he was not convinced that the men posed a danger to the community or a risk of fleeing the Washington area if they were released, and he raised questions about the strength of the government's case against them.
     This is potentially a very important story; we get so little feedback about the strength of the government's terrorism prosecutions that any reaction like this is newsworthy. The flip side is, I think it's fair to say that Judge Jones has a reputation in the Alexandria federal courthouse for being a bit quirky on issues like this, so it's hard to know whether his ruling is sound. The government has appealed the ruling, so we should get a better sense of its importance soon.


Sunday hack attacks: Apparently this Sunday is going to be a big day for web page defacements. We'll see.


"Bring them on": Today's Bushism of the Day is:
"My answer is bring them on." -- On Iraqi militants attacking U.S. forces, Washington, D.C., July 3, 2003
If "Bushism" simply meant here "the sort of statement that is characteristically Bush's," then the characterization might well be accurate. But given that "Bushism" is usually used by Slate in a pejorative way, I thought it might be helpful to look at the broader transcript:
QUESTION: A posse of small nations, like Ukraine and Poland, are materializing to help keep the peace in Iraq, but with the attacks on U.S. forces and casualty rates rising, what does the administration do to get larger powers like France and Germany and Russia to join in the American (inaudible)?

BUSH: Well, first of all, you know, we'll put together a force structure that meets the threats on the ground. And we got a lot of forces there ourselves. And as I said yesterday, anybody who wants to harm American troops will be found and brought to justice.

There are some who feel like that if they attack us that we may decide to leave prematurely. They don't understand what they're talking about, if that's the case.

Let me finish.

There are some who feel like that, you know, the conditions are such that they can attack us there. My answer is bring them on. We got the force necessary to deal with the security situation.

Of course we want other countries to help us. Great Britain is there. Poland is there. Ukraine is there, you mentioned. Anybody who wants to help, we'll welcome to help. But we got plenty tough force there right now to make sure the situation is secure.

We always welcome help. We're always glad to include others in. But make no mistake about it, and the enemy shouldn't make any mistake about it, we will deal with them harshly if they continue to try to bring harm to the Iraqi people.

I also said yesterday an important point, that those who blow up the electricity lines really aren't hurting America, they're hurting the Iraq citizens. Their own fellow citizens are being hurt. But we will deal with them harshly as well.
In context, it seems to me that Bush is saying something that needs to be said, at least given the Administration's current Iraq policy: Americans won't be driven from Iraq by attacks on our troops. If you want to fight us, fine. We'll fight back, and we're definitely not going to be pushed to leave. We'll point out that you're hurting your own people, so in that respect we'll ask you to stop. But we won't negotiate with you; if you want to fight us, we can handle it. Seems reasonable to me.

     And, as usual, it seems to me that Slate's criticism of Bush (and note that here Slate doesn't even have the "it's just a joke" excuse) would be more fair if it included this context, or at least a link to the context.


1941 Independence Day address by Robert Jackson (then-Attorney General, later Justice): Eric Muller (IsThatLegal?) has it, courtesy of law professor John Barrett. Short and eloquent, and apparently never before published.


Isn't it Chevronic? The Washington Post prints something suprisingly sane (by popular press judicial reporting standards) about the Supreme Court. Also, they've gotten religion on an important issue of administrative law, commenting on my future employer this summer, the Department of the Interior:

While both sides couch the issues [of wilderness management] in legal terms, the real question is one of policy. That is, to what extent should the Bush administration reverse a Clinton administration policy that is biased toward putting more land under wilderness protection and placing more roadless areas of forest beyond the reach of loggers -- and replace it with one biased in precisely the opposite direction?

The fact that current law will apparently support either direction implies the need for congressional action to better define what lands should receive what sort of protection.

Yes, the tradition of deference in administrative law -- Chevron is exhibit A but it goes further than that -- is embarrassing, in a Rust v. Sullivan kind of way, and sits uneasily with the rule of law. Good to see the Post is on board, even if their proceduralist arguments (like many of ours) may be, deep down, driven by policy likes and dislikes.


Privatization: It's about time more people started talking about this.


Russian werewolves: The Russian police corruption sting is called "Operation Werewolves" [oborotni] (Russian article here and English translation here). Cool!

Meanwhile, in the U.K., the Chelsea soccer team, which has just been bought by Roman Abramovich, Russian oligarch and governor of Chukotka, is being referred to as "Chelski" in the media. (Chukotka is where the Chukchas of Russian jokes come from.)

In unrelated news, what's this all about? Meanwhile, "the square of two Nelsons" is funny.

Wednesday, July 02, 2003


Me on NPR's "Talk of the Nation" on Thursday: I will be live on NPR's Talk of the Nation on Thursday afternoon, July 3rd. The show is about the Declaration of Independence and "the pursuit of happiness" and begins at 2 pm Eastern Time. They tell me I am likely to be on the air from around 2:15-2:40, but you never know about these things. Here is how the segment is described on the NPR website:
Life, liberty and the pursuit of happiness. These inalienable rights are engraved on walls across America and enshrined in our national psyche. We'll look at the history of happiness as a political right.
It sounds like an interesting topic, so you might want to tune in.


Liefmans Goudenband: Yesterday I tried a bottle of a classic Belgian beer, Liefmans Goudenband, and it was simply fabulous. It's delicious, rich, and worth seeking out. Oh, and you can buy it online for a pretty good price here.


Sweet! My friend Steve Newman told me that I was quoted on slippery slopes by Geoffrey Nunberg in his Fresh Air commentary last night. It was just a small snippet, but I was delighted. It's the best kind of quote: When someone you don't even know, and who hasn't even called you to ask you about this, quotes something you've written. Makes my day.

UPDATE: A reader points out that there's a written version of this on Nunberg's site.


Congress can ban race preferences in federally funded education, even after the Grutter decision; John Rosenberg correctly points this out. (For those libertarians who don't like Congress imposing its will on private educational institutions, Congress can certainly limit this to state universities -- though once Congress decides to ban race discrimination against nonwhites in universities, which is how Title VI has been practically interpreted, it seems to me proper to also ban race discrimination against whites, even if one thinks as a matter of first principles that private universities ought to be free to choose students as they please.) I doubt that Congress will be able to muster the political will to do this, but I think it would be worth trying in any event.


He was incompetent because he believed me: On Monday, the Third Circuit considered a case in which a defendant gave false documents to her attorney in a criminal case and then claimed that the attorney was ineffective (and the convicted defendant therefore deserved a new trial) because the attorney relied on the truthfulness of the documents in crafting the defense. Talk about chutzpah. The Third Circuit ruled that the defendant had waived her right to claim ineffective assistance of counsel on those grounds. From the opinion:
  If this court were to grant [the defendant] a new trial based on her claim of ineffective assistance of counsel, we would allow a defendant to manipulate the justice system by knowingly presenting fabricated written documents to her counsel in an attempt to deceive the court, the jury, and the Government into accepting her theory of defense, or by successfully gaining a new trial when the strategy failed because the defense counsel did not detect the fraud.

  [The defendant] seeks to absolve herself of her misconduct by contending that her counsel was ineffective because he did not discover her deception. To grant a new trial under these circumstances would completely undermine the integrity of the judicial process.
Defense attorney Ken Lammers comments over at CrimLaw:
  Good call.

  I cannot recall the number of times I've had clients show up on the day of court with a manila envelope stuffed with papers or a witness whom I've never heard of. Sometimes they're even relevant. How in the world am I supposed to know if it's a lie? If it looks or sounds correct and my client vouches for it, I'm stuck with it. Anyway, even if my client gets the information to me a month before the trial, I don't think I'm supposed to presume my client is lying.


Combat Zones That See: Over at the Pentagon, DARPA is considering proposals for a new program, "Combat Zones That See." Here is DARPA's jargon-filled explanation of what the program will attempt to do (excerpted from this .pdf file):
   Military Operations in Urban Terrain (MOUT) are fraught with danger. Urban canyons and abundant hide-sites yield standoff sensing from airborne and space-borne platforms ineffective. Short lines-of-sight neutralize much of the standoff and situation awareness advantages currently rendered by U.S. forces. Large civilian populations and the ever-present risk of collateral damage preclude the use of overwhelming force. As a result, combat in cities has long been viewed as something to avoid. However, modern asymmetric threats seek to capitalize on these limitations by hiding in urban areas and forcing U.S. Forces to engage in cities. We can no longer avoid the need to be prepared to fight in cities. Combat zones That See will produce video understanding algorithms embedded in surveillance systems for automatically monitoring video feeds to generate for the first time, the reconnaissance, surveillance, and targeting information needed to provide close-in, continuous, always-on support for military operations in urban terrain.

   Combat zones That See explores concepts, develops algorithms, and delivers systems for utilizing large numbers (1000s) of cameras to provide the close-in sensing demanded for military operations in urban terrain. Automatic video understanding will reduce the manpower needed to view and manage this monumental collection of data and reduce the bandwidth required to exfiltrate the data to manageable levels. The ability to track vehicles across extended distances is the key to providing actionable intelligence for military operations in urban terrain. Combat zones That See will advance the state of the art for multiple-camera video tracking to the point where expected track lengths reach city-sized distances. Trajectories and appearance information, resulting from these tracks, are the key elements to performing higher-level inference and motion pattern analysis on video-derived information. Combat zones That See will assemble the video understanding, motion pattern analysis, and sensing strategies into coherent systems suited to Urban Combat and Force Protection.
     Sounds like it could be quite useful in Baghdad or Kabul. On the other hand, the Associated Press's story addresses the privacy implications of the technology if it were developed and then used not by the military in combat, but instead by domestic law enforcement or terrorism investigations in the United States. (Thanks to beSpacific for the link.)


Ask and I shall tell Phil Carter disagrees with my assessment of the judicial fate of "Don't Ask, Don't Tell. A couple of quick rejoinders.
10 U.S.C. 654, on the other hand, is somewhat different as a matter of law and politics. It is a creature of Congress, not the Pentagon, and can only be changed by Congress or the courts. As a federal statute, it is due the deference that the Court would give to the political branches on any legislative matter. It may also be due some Constitutional deference in accordance with the delegation of powers in Art. I, Sec. 8: "To make Rules for the Government and Regulation of the land and naval Forces." I don't think it's a slam dunk to say this is a matter of national security and military deference, therefore the courts will defer. For starters, it's not clear whether this ban is in America's national security interest. (See, e.g., the discharge of Arab-speaking linguists from the Defense Language Institute earlier this year) Second, it's not clear that a statute like this will receive the same deference, given its legal context and legislative history, as a regulation promulgated directly by the Pentagon. Third, I'm not sure that this policy will get the 100% backing of the Pentagon today.
Maybe Phil knows some caselaw I don't, but in everything I've read, the Court seems to grant Congress' "regulation of the land and naval forces" fully equal deference to the deference it grants the commander-in-chief and the Pentagon-issued regulations (which are, as he notes, issued pursuant to a Congressional delegation of authority in any event.) Exercises of the "regulation of forces" power are, quite explicitly, granted much more deference than ordinary legislation. If Phil knows of any caselaw differentiating between Congressionally-issued military regulations (regardless of their legislative history) and Pentagon-drafted ones I'd be interested to see it.

Whether a regulation is in the interest of national security is precisely what the Court declines to decide on its own; that is the question on which the deference is based. So the fact (I think it's a fact) that this policy isn't in the national interest won't be reached by any court.
cited to Goldman v. Weinberger for exactly the opposite proposition that Jacob points out, with help from a couple of other cases like Rostker v. Goldberg. The point is that the military is allowed to make certain regulations that do not heavily burden the exercise of fundamental rights. The military can burden such rights on the margins, such as requiring Jewish soldiers to wear earth-tone yarmulkes or shave their beards in order to achieve a proper seal with their M40 protective mask. But it cannot flatly tell these servicemembers not to engage in their conduct. In other words, a little burden is okay; a big burden is not. The military has gotten away with burdening fundamental rights in a small way, and it has been deferred to by the courts. But it may not get such deference when it heavily burdens fundamental rights that have been recognized by the court.
I just don't find this "on the margins" vs. "fundamental" distinction in the caselaw.

Nor do I agree that the questions in Rostker-- whether it is constitutional to register men but not women for the draft-- or Goldman-- whether it is constitional to forbid the wearing of a yarmulke in uniform (earth-tone or otherwise!)-- are marginal, or are the sorts of things the courts viewed as minor. One is: is it constitutional to discriminate on the basis of sex in the potential allocation of the most burdensome duty imposed by the United States government? The other is: is it constitutional to adopt regulations, for the purpose of uniformity of appearance and military discipline, that make it impossible for certain military personnel to fulfill their religious obligations (and, therefore, will make it possible for some religious believers to serve at all)? One goes to the core of equal protection, the other to the core of free exercise-- it is a "heavy burden" on a "fundamental right that has been recognized by the court" (and, in that case, by the text of the constitution!). In neither case did the Court minimize the weight of the conflict with constitutional values. They said nothing to characterize the issues as minor. They simply refused to reach that question. The yarmulke case appears minor, because most of the services most of the time reach an accommodation for those similarly situated, because of the complicated character of the obligation to cover one's head, and because the services aren't teeming with Orthodox Jews. But none of those is relevant to the weight of the conflict between the regulation and free exercise; and none is referred to by the court.

Looking forward to further enlightenment on any of these points. But for now, it looks to me like Goldman is squarely on point: for the purposes of discipline, cohesion, morale, and so on, Congress (pursuant to the "land and naval forces power") or its authorized delegate has issued rules for the conduct of military personnel that burden a constitutionally-protected liberty and have the effect of making military service impossible for a class of persons against whom discrimination is constitutionally disfavored. (Though I don't think we can yet read Romer and Lawrence as making homosexuality an equal-protection "suspect class," not quite.) The courts' rule is to defer to the political branches on these questions, not to question the latter's findings about security interests and military needs, and not to reach the question of how great the conflict with constitutional rights is. Those who join the military, or are conscripted into it, temporarily lose their judicially-protected liberty in all sorts of fundamental ways. A civilian cannot, after all, be ordered into mortal peril by an agent of the state. A soldier can.

At one point I was planning a book on the military as an institution in liberal constitutional states. Half was going to be about the military as a political actors: how is it that some states seem to have permanently solved the problem of Caesarism and coups, that contrary to classical republican predictions they have large standing armies that do not deform or rule domestic politics? And half was going to be about the internal governance of the military: what constraints do liberal constitutional values, norms, and rights place onto such governance? It was going to be my second book. Now, if I ever reach it at all, it'll have to be at least my fourth-- which means it's just not on the current agenda at all. I do find the questions very interesting. I also find it hard to know what to say about them: members of the military aren't slaves but neither are they entitled to the full range of liberty and freedom from coercion that civilian citizens are. I don't know many clear statements or arguments about how to draw lines in the vast area between those two extremes.


Plug, plug I've just noticed a very smart new group blog, Publius Minor: Contributions to a Critique of Politics, Law, Anthropology, and Literature, written by (I assume) the Donahue family-- an anthro professor, a lawyer, and a political theorist (who is a former student of mine). Check it out.

This is of course in addition to the libertarianism-and-law heavy smart group blog Crescat Sententia, made up of the Baude family and assorted University of Chicago students and recent alumni/ae, which features an entirely different former student of mine.


The importance of reading the whole sentence: Howard Kurtz collects anti-Scalia articles from editorialists nationwide; he cites a Buffalo News editorial that says:

Incredibly, Scalia had the nerve to say, "Let me be clear that I have nothing against homosexuals." You almost expected the next line to say, "Some of my best friends are homosexuals."

Almost -- except that what Scalia really wrote was:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. . . . But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts -- or, for that matter, display any moral disapprobation of them -- than I would forbid it to do so.

Now I’m not faulting the Buffalo News editorialist for not reading those later sentences, but he could have at least figured out that Scalia said he had nothing against “homosexuals promoting their agenda,” not that he had nothing against “homosexuals.” I once learned that (perhaps in part for this reason) you should put possessives before gerunds (“homosexuals’ promoting their agenda”); that “rule” is sometimes awkward and pointless, but maybe it has something going for it here.

UPDATE: William Ferrullo points out that this may have been not the Buffalo guy's fault, but the AP's, which misquoted Scalia in its original report. Well, it's still the Buffalo guy's fault for not reading Scalia's actual opinion, but that's a bit much to expect of an editorial writer.


Attila's real problem: The Washington Post, commenting on the icy reception, in European circles, of scandal-plagued Italian Prime Minister Silvio Berlusconi as Italy assumes the rotating presidency of the European Union:

Green leader Monica Frassoni likened Berlusconi to Attila the Hun, whose barbarian hordes ravished Europe in the 5th century without regard for the law.

Oh, is that how Attila ravished Europe.

UPDATE: Reader David Kaufman suggests Attila ravaged, not ravished, Europe. But Merriam-Webster suggests these are, in this context, interchangeable.


Some dare call it treason: A friend of mine asks:
If it is libelous to say "[X] beats his wife," why wouldn't it be libelous to say "[X] is a traitor"? I'm not asking out of any intent to litigate, but rather as a sudden curiosity, especially at a moment when [a certain person] is walking around saying things like: "The inevitable logic of the liberal position is to be for treason." Since treason is a far more serious crime, why is it far easier to accuse people of it?
     A great question, and here's the answer: Libel law punishes false and defamatory statements that are likely to be perceived as statements of fact. "X beats his wife" is usually likely to be perceived as a statement of fact (though in some contexts, for instance in a comedy routine, or something that's clearly a hypothetical, it might not be). "X is a traitor" may be perceived as a statement of fact in some situations, e.g., "During World War II, X was a traitor" or even "During his stay in Baghdad, journalist X committed treason." Both of these statements tend to suggest that the speaker knows some facts about X that the speaker is capturing using the term "treason." The statement is defamatory, and if it's false (and the other requirements of libel law are met), then it's libelous.

     But sometimes the word "traitor" doesn't carry with it a factual allegation -- rather, it expresses a value judgment. "The inevitable logic of the liberal position is to be for treason," or "liberals are traitors," even when applied to a particular person, doesn't suggest that the person in fact supports treason, or has committed treason. Rather, it suggests that, given the facts that the speaker and the listeners both know about the person -- the person is a liberal, the person has written this-and-such, and so on -- the person is morally tantamount to a traitor, or would support treason if he were only consistent. "Is to be for treason" or "are traitors" in this context are statements of pure opinion, pure evaluative judgment. They aren't factual allegations.

     This may sound like a legalistic distinction, but it is in fact the legally required distinction, and it's a necessary one. For a specific example of its application by the Supreme Court, see Greenbelt Cooperative v. Bresler (1970). A newspaper quoted people who said Bresler committed "blackmail" -- but in a context where it was clear that they meant "Bresler's actions [which were factually accurately set forth] are morally tantamount to blackmail" (opinion) rather than "Bresler had committed the crime of blackmail" (fact):
During the course of the arguments Bresler's opponents characterized the position he had taken in his negotiations with the city officials as "blackmail." The Greenbelt News Review was performing its wholly legitimate function as a community newspaper when it published full reports of these public debates in its news columns. If the reports had been truncated or distorted in such a way as to extract the word "blackmail" from the context in which it was used at the public meetings, this would be a different case. But the reports were accurate and full. Their headlines, "School Site Stirs Up Council - Rezoning Deal Offer Debated" and "Council Rejects By 4-1 High School Site Deal," made it clear to all readers that the paper was reporting the public debates on the pending land negotiations. Bresler's proposal was accurately and fully described in each article, along with the accurate statement that some people at the meetings had referred to the proposal as blackmail, and others had indicated they thought Bresler's position not unreasonable.

It is simply impossible to believe that a reader who reached the word "blackmail" in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime.
Likewise with "The inevitable logic of the liberal position is to be for treason." So there.


Classical music Yesterday I received my quarterly issue of Fanfare, a much-awaited event in my house. Reading Fanfare is the best way to stay current on what is new in the world of recorded classical music, far better than Gramophone.

Fanfare also dispels the myth that classical composition is dead in today's world, although, yes, you do have to get over your melody/harmony obsession.

You can't criticize popular music for being too simple and then reject contemporary compositions for being too baffling, unless you think there is something sacred about your current state of understanding of music. I'll nominate Helmut Lachenmann and Pierre Boulez as the most important composers working today, I am a Ligeti fan as well, not to mention Poul Ruders.

Melody and harmony are not central to many of the world's musics (try various parts of Africa or Tibet), so don't tell me your brain is hard-wired in that fashion. Contemporary compositions offer delicious treatments of rhythm, pitch, texture, and the organization of moving blocks of sound, you just need to learn the language.

But if you want to know the latest in Mozart and Bach, Fanfare is great for that too.

Tuesday, July 01, 2003


Normandy museum and American insignia -- a different explanation: Reader Nicolas Bray (who in turn thanks RNW and John O in the comments on the Dissident Frogman site) presents an alternative theory to that described in the post from this morning:
On the basis of these pictures:

[picture one]
[picture two]

it seems likely that the middle flagpole is always kept empty. Why no American flag? Well, it's a memorial specifically for a British outfit (called the Sherwood Rangers) that liberated Bayeux. Why have an empty flag pole? I dunno. No one ever seems to comment on it.

Why no American flags in the gift shop? Well, on the basis of this:

[picture three]

it sounds as though the entire Bayeux memorial is dedicated specifically to Commonwealth soldiers. I don't know a whole lot about how the gift shops usually work at Normandy memorials (or about Normandy memorials in general) but it seems to me that in such a situation it wouldn't be unreasonable for the gift shop to only sell Commonwealth flags.

You probably know better than I what to make of it at this point, but I'm not quite convinced that there's anything sinister going on here.
I much appreciate hearing the alternate factual theory, which may well be correct. I can't be sure of the facts (an uncertainty that I tried to signal in my original post), but I thought I'd pass this along so people were aware of the alternative explanation, and so that some might even be able to check it on their own.

UPDATE: I can't exactly tell what to make of this post on the Dissident Frogman site, but it does make me much less confident that any removal of insignia was going on. In any case, if you're interested in the subject, please read the material for yourself.


The Post-Lawrence Politics of Homosexuality: Reflecting on Jacob’s excellent post on the politics of Lawrence and sodomy, I wonder whether the Lawrence decision might also pose some peril for Democrats, insofar as it might encourage some to overreach on the issue of gay rights. Just as the political landscape posed a threat to Republicans before the Supreme Court struck down sodomy laws, I think the post-Lawrence landscape may pose a threat to Democrats, or gay rights activists, should they seek to stigmatize any aversion to homosexuality as an immoral, extreme, or otherwise illegitimate public position. Let me explain, and then Jacob can tell us all why I am wrong.

For starters, Americans appear to have somewhat ambivalent views about homosexuality. As Jeffrey Rosen notes, a majority of Americans still believes that homosexual activity is morally wrong, even if they would not seek to outlaw or otherwise stigmatize it. Whereas most Americans may oppose sodomy laws, this does not mean that Americans fully embrace an “I’m okay, your okay” approach to human sexuality. Most Americans are tolerant of homosexuality - as well they should be - but this does not mean most Americans approve of homosexuality. Insofar as Democrats – or gay activists – fail to recognize this, they may overreach and provoke the political backlash that the Lawrence decision, standing alone, never could.

Let me point to one recent anecdote that to me suggests such overreaching is possible. Earlier this year, President Bush nominated Alabama Attorney General William Pryor to a seat on the U.S. Court of Appeals for the Eleventh Circuit. Pryor is very intelligent and articulate, and has a sharp legal mind. He is also very conservative. He is a judicial nominee Democratic Senators would much like to stop. At Pryor’s nomination hearing, many of the questions focused on Pryor’s legal positions, public statements, and the like. Pryor’s outspoken history provided much fodder for the inquisition – and may provide Democrats with ample reasons to oppose his nomination. But there was more.

As reported by Kathryn Lopez on NRO, Senator Russell Feingold asked a series of question about whether “a gay plaintiff or defendant would feel uncomfortable coming before you [Pryor] as a judge.” Feingold focused on Pryor’s legal views – he defended the Texas sodomy statute – but also sought to probe Pryor’s personal feelings about homosexuality. Specifically Feingold noted “news accounts” that Pryor “even went so far as to reschedule a family vacation at Disney World in order to avoid Gay Day.” In response, Pryor noted he had two young daughters, ages six and four, and that he and his wife “made a value judgment and changed our plan and went another weekend.” To which Feingold responded “Well, I — I appreciate your candor on that” – suggesting Feingold was taken aback by Pryor's admission. In written follow-up questions to Pryor, Feingold again raised the issue, further suggesting that Pryor’s decision not to bring his young daughters to Disney World during Gay Day might provide sufficient basis to vote against the nomination.

While my personal views about homosexuality are probably much closer to those of Senator Feingold than those of Bill Pryor, I suspect this is a losing issue for Senate Democrats and gay rights activists. If there is a sound basis to oppose Pryor's nomination, this ain't it. Gay Day at Disney World is no sedate family-oriented affair. To the contrary, if the accounts of my gay friends who have attended the event are anywhere near accurate, it is a bacchanalia, the homosexual equivalent of MTV Spring Break in Cancun. The pictures linked in the Lopez column are, if anything, a tame reflection of what occurs during that weekend. Thus, I suspect many, if not most, parents in Pryor’s situation would decide not to take their young children to Disney World during Gay Day – just as they would decide not to visit a raucous college tailgate party or wet t-shirt contest. From this standpoint, Pryor’s decision does not make him a bigot or a homophobe, but a responsible parent. Insofar as Senator Feingold or others try to suggest otherwise, I believe they are making a political mistake.

I should make clear that the above is not based on my personal views of homosexuality. I do not believe there is anything immoral about homosexuality, as such. The conduct at Gay Day is no more objectionable than many bachelor parties or much contemporary television fare. If adults wish to entertain themselves in such a fashion, that’s perfectly fine with me. But I suspect that most Americans are not quite as tolerant, at least where children are concerned, and that most Americans are unwilling to brand as bigots those who would shield their children from such displays. In sum, just as Republicans would be tactically stupid to continue and defend state laws against sodomy, Democrats would be tactically stupid to equate public approval of the Lawrence decision with the whole-hearted approval of homosexuality in any and all public manifestations.


If you're in L.A. and want to see the July 4 Hollywood Bowl show, some friends and I would be glad to unload some tickets (at least 4 as of the time this message is being posted) on you. See here for details on the event, but the short summary is that it involves (1) the L.A. Philharmonic, (2) Kenny Rogers, (3) a generally July-4-ish musical program, and (4) fireworks, the real kind, not the metaphoric. I've gone to these programs the last couple of years, and they're a lot of fun. Unfortunately, this year we have to go out of town, so we'd like to sell our tickets.

     The tickets are in section E, which is next to the Terrace Boxes -- pretty close to the stage, but off to the side. They are $35 each (their normal cost), and we also have some parking passes.

     If you're interested, please e-mail me at volokh at Thanks! Now, back to our regularly scheduled programming . . . .


Nike v. Kasky, the First Amendment, and commercial advertising: My Wall Street Journal piece on the subject is here.


The "invited error" doctrine says that a litigant can't ask a judge to do something (e.g., to admit certain evidence), and then complain on appeal that the judge was mistaken to do it. Here's the Eleventh Circuit's application of the doctrine in today's Glassroth v. Moore case, which holds that Alabama Chief Justice Roy Moore violated the Establishment Clause by putting up a large Ten Commandments sculpture in front of the courthouse:
First, he contends that the district court judge should not have made any factfindings based upon his viewing of the monument and its surrounds. The judge unquestionably made important factfindings as a result of what he saw when he viewed the monument and the rotunda in which it is located. That was error, the Chief Justice argues, because he had thought that the only purpose of the district court’s view of the monument and the area around it was to provide the court with a physical context within which to assess the evidence admitted in the courtroom. . . .

Counsel for the Chief Justice agreed with that statement about how the view should be conducted, and he made clear that the whole point was for the district court judge to be able to gather facts about the monument and its setting . . . . So eager was [the Chief Justice's lawyer] to have the district court judge conduct the view "just like a juror would," that counsel for the Chief Justice volunteered his help in arranging parking for the district court judge at the Judicial Building. Any conceivable error was not just invited error, but invited error with a parking space. . . .


The Quare Conspiracy now has a new blogger, who posts here on the nerd/geek distinction (write to her if you have a view on this), and here on rank-order ("instant runoff") voting (which I like). Her name is Aurora Carraway, which may be a sign of her rye sense of humor.

UPDATE: Glenn Wright Bowen suggests I not get carradaway.


Puzzle for the day: From which points on Earth can you go 10 miles south, 10 miles west, 10 miles north, and arrive at exactly the place from which you started? (For the nitpickers, assume that the Earth is a perfect sphere, and that all points on its surface -- which is what I mean by "on Earth" -- are accessible to you.) The answer is here.


Lawrence and the military Phil Carter and Mark Kleiman ask: what does Lawrence v Texas mean for "Don't ask, don't tell?"

As a matter of politics, very little. As a matter of law, nothing.

The internal governance of the military isn't quite a black box as far as constitutional law is concerned; but it's very close. TheUniform Code of Military Justice authorizes court-martial and other internal legal proceedings that are very clearly not as advantageous to defendants as the (currently-interpreted-) Constitutional minumum for civilian trials. It was Truman, not the courts, who desegregated the military, despite a flurry of civil rights jurisprudence around the same time. Members of the military may be disciplined for saying derogatory things about the President. They may, as Phil notes, be prevented from wearing religiously-mandated garb while on duty. (Phil thinks this is a comparatively minor point. But a ban on the wearing of yarmulkes in civilian life would violate the core of the free exercise of religion. Admittedly, post Smith, a government could pass a general 'no hats in public' rule that would incidentally forbid yarmukles or turbans or headscarves-- thank you, Justice Scalia-- but that was not the case when Goldman v Weinberger was decided. A regulation that clearly would have violated the Free Exercise clause (hardly a minor constitutional provision!) as it was then interpreted, had it been applied to civilians, was upheld-- not because the Court believed that the wearing of yarmulkes undermined discipline, but because it wasn't prepared to argue with the military about its judgment of the question.

Goldman reads in part:
Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission, the military must foster instinctive obedience, unity, commitment, and esprit de corps. See, e.g., Chappell v. Wallace, supra, at 300; Greer v. Spock, 424 U.S. 828 , 843-844 (1976) (POWELL, J., concurring); Parker v. Levy, supra, at 744. The essence of military service "is the subordination of the desires and interests of the individual to the needs of the service." Orloff v. Willoughby, supra, at 92.

These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment. See, e.g., Chappell v. Wallace, supra, at 304. But "within the military community, there is simply not the same [individual] autonomy as there is in the larger civilian community." Parker v. Levy, supra, at 751. In the context of the present case, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. See Chappell v. Wallace, supra, at 305; Orloff v. Willoughby, supra, 93-94. Not only are courts "`ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,'" Chappell v. Wallace, [475 U.S. 508] supra, at 305, quoting Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187 (1962), but the military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation's military policy.

[J]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.Rostker v. Goldberg, 453 U.S. 57 , 70 (1981).
(Emphasis added.) Whether a rule is adopted by Congress or by the military, it is almost unheardof for the Court to meddle in the internal governance of the military and military conduct. The "unit cohesion" rationale for "don't ask, don't tell" is just the sort of thing that the Court defers to.

If the Court is willing to uphold rules that, in effect, prevent many deeply-committed religious believers and practitioners from serving, because uniformity of appearance is sufficiently important to military discipline, then it's certainly going to uphold "don't ask, don't tell."

Finally: remember that "don't ask, don't tell" does not specifically refer to sodomy, unlike the regulations that it replaces. It refers to "persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct." "Homosexual conduct" is defined as "bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires." Even in the absence of such "conduct," a member of the military may be expelled for having "stated that he or she is a homosexual or bisexual" (with all the attendant ambiguity about what counts as such a statement) or for having "married or attempted to marry a person of the same biological sex (as evidenced by the external anatomy of the persons involved.)" [Note that this last means the military takes a different view from that of some state courts in deciding what counts as a same-sex marriage when one of the individuals is transsexual.] The finding of a constitutional right to sodomy wouldn't directly touch the policy even if the courts didn't defer on questions of military conduct. However, if the courts didn't defer, Kennedy's dicta about destiny and dignity, combined with Romer v. Evans, might come into play to strike the whole thing down.

As it is: the policy remains legally entirely safe. I of course think it's grossly unjust, but see no likelihood of a successful court challenge.

UPDATE: See Phil Carter's comments, and my reply above.


Judge Alex Kozinski on derivative works: "What's So Fair About Fair Use?," an article cowritten by Judge Alex Kozinski and Chris Newman, is now on the Web (though the formatting is a bit glitchy). The basic thesis is that Congress should change copyright law to let people freely create derivative works of others' works, so long as they pay reasonable compensation to the original owner:
Let’s imagine that tomorrow Congress were to revise the Copyright Act as follows. From now on, when an infringing use contains enough original expression to qualify as a derivative work, the following provisions will come into play: First off, section 107 [fair use] does not apply. If you use someone else's work to make profits, or in such a way that you reduce the copyright owner's ability to profit, you may be held accountable. At the same time, however, sections 502 and 503 also do not apply. No longer do courts have special authorization to grant injunctions simply to prevent or restrain infringing derivative works. Instead, they are to treat copyright injunctions in these cases the way equitable relief is usually treated, granting them only when there is strong reason to believe that damages will be inadequate.
The article defends this position, and, best of all, includes the following (since it starts with the case about The Cat Not in the Hat, where the Dr. Seuss copyright owners got an injunction against a Dr. Seussesque story about the O.J. case):
Those lawyers for Seuss were so sly and so slick,
that they wrote a complaint and they filed it real quick:
“We took a look. We saw a book.
We saw a book writ by a crook.
This crook had took our own book’s look!
It looks the same way in a box.
It sounds the same way with a fox.
It tastes the same with bagels and lox!
It copies rhymes from here and there.
this book infringes everywhere!
And though they say Juice use is fair,
their claim is just so much hot air.
It’s satire, not a parody! Read it! Read it! You will see!
Read the book and see, we plea! Pay heed to Justice
And Cindy Loo Who who is no more than two,
If she saw this crook book would not know what to do.
Why, she might even think it was by you-know-who!
So DON’T let poor Who boys and girls be ensnared!
Please, save us from damage that can’t be repaired!
In closing we say, and the court may it please:
This book MUST go the way of the Truffula trees!"


More from Marcus Cole: Randy's and my friend Marcus Cole, a law professor at Stanford Law School, writes this follow-up to his earlier message on race preferences and the assumptions that they lead people to draw:
In case you are interested, I've had dozens of e-mails from people who have read my letter to Eugene on The Volokh Conspiracy. Most of these have been very warm and supportive. I thought that I should address a few comments from people in favor of affirmative action.

One writer said: "Obviously you benefited from affirmative action; you graduated from Northwestern and you are teaching at Stanford."

My response:
This proves my point. Three of the 29 active members of the Stanford faculty, slightly better than one tenth, are Northwestern graduates. Only Yale, Stanford, and Harvard have larger representation on our faculty. (The same is true for the Supreme Court, which is one-ninth "Northwestern.") Yet no one asserts that the two white Northwestern graduates on our faculty had corners cut for them. The writer was so blinded by my race that he was certain that a Northwestern degree made me underqualified, and he didn't bother to check the facts.
Another e-mail said: "What if your dean came to you and said, Marcus, the truth is that,as you may have noticed, we don't normally hire white men with the credentials you had when you were on the teaching market. We made an exception in your case because you are African American. We thought that this would give you a valuable perspective that would genuinely add to our community. We're happy with that decision." Would you feel bad about this? Would you leave? Would you tell her that you think she made a bad decision?"

My response:
Two points. First, I'm happy to say that at Stanford, we live under what is affectionately referred to here as the "Rice doctrine," which establishes an official policy of no affirmative action in tenure appointments. Second, I referred the e-mailer to Eugene's excellent original response to Dowd, to which I, in turn responded. In addition, I ask "why should I give up something that I may have earned but for both types of racism?" To paraphrase Eugene, "are white people going to give up everything they have gained (and possibly, inherited) from the world of Jim Crow which this environment replaced?" Are you telling me that I either have to accept a world of affirmative action racism or accept a world of Jim Crow racism? I'm sorry, but I don't think those are my only choices. And I won't give up any of the chittlin's massa throws into my pork barrel. He just better not expect me to grovel in appreciation at his "generosity."
I just thought that you might be interested in these exchanges. Frankly, I didn't anticipate the Northwestern question, or the level of anger that pro affirmative action folks have for ingrates like me.


Race preferences, covert and overt: My colleague Rick Sander had a very good op-ed in the L.A. Times yesterday, which he graciously allowed me to post here:

Colleges Will Just Disguise Racial Quotas

L.A. Times, June 30, 2003

Richard Sander [Richard Sander is a professor of law at UCLA and director of its Empirical Research Group]

In its affirmative action decision last week, the Supreme Court announced that explicit racial boosts, like the 20 points awarded to blacks by the University of Michigan's undergraduate admissions office, are unconstitutional. But "individualized assessments" of applicants (like those used by Michigan's law school) that factor in race among other considerations are not only acceptable but highly desirable. Alas, as nearly every admissions officer in American higher education must know, this distinction -- as laid out by Justice Sandra Day O'Connor -- is either very naive or very cynical. Nothing could be easier than to dress up a point system -- or a racial quota, for that matter -- as an "individualized assessment."

Law school admissions, including Michigan's, are notoriously dependent on numbers. At almost every American law school, 90% of the admission decisions can be explained by knowing only four things about each applicant: her LSAT score, her undergraduate college, her GPA and her race. Black applicants -- at Michigan and most other schools -- receive enormous, easily quantifiable boosts, despite official assertions to the contrary.

The court, in Justice O'Connor's voice, seems to be saying: "Create diversity any way you like -- but for heaven's sake, don't be honest about it!"

In California, where the voters banned (through Proposition 209) the use of race in state university admissions in 1996, disguising affirmative action is an art form. In 1997, when strict compliance with Proposition 209 produced a first-year class with only one black student, Berkeley's Boalt Hall law school was roundly criticized, even by the leaders of the Proposition 209 movement, who believed the school should have been able to reach out and recruit more minority students.

Boalt learned its lesson. The school created a system of "individualized assessment" of applicants, dramatically increasing its admissions of black and Latino applicants with low test scores while, not accidentally, keeping the test scores and GPAs of its white and Asian admittees as high as ever -- a feat that is impossible without taking race heavily into account.

Today, Boalt is nearly as racially diverse as it was before Proposition 209. Its evasion of the law is so notorious that it was implicitly acknowledged by both sides arguing the Michigan cases before the Supreme Court.

My academic home, UCLA Law School, has tried hard to be more principled, but its students and faculty both badly want more racial diversity, and the lure of skirting the law without consequences has proved irresistible.

In 2001, the school adopted a special admissions track for students who express an interest in "Critical Race Studies," a "program of study focusing on the nexus of race and the law." Students who apply to the program are, not surprisingly, much more likely to be nonwhite than UCLA law applicants in general. Of these applicants, those who are black or Latino are much more likely to receive the staggering numerical boosts that push them into the admissible pool. But this, of course, is done through an "individualized assessment."

The school also has an admissions track for candidates who are at a socioeconomic disadvantage. This track -- which I helped design -- began as a sincere and successful effort to increase the number of students from lower- income families and communities. From the beginning, of course, such preferences gave some disproportionate benefit to blacks and Latinos, but not nearly enough to satisfy the school's faculty or students. So the program has been steadily changed in the years since to give heavier weight to those socioeconomic factors that correlate with race.

Boalt and UCLA Law School are merely examples of a pervasive pattern at the University of California: academic programs rigging their admissions systems to admit underrepresented minorities with lower scores and weaker qualifications through the back door.

Proposition 209 can be violated with impunity in part because it has no internal enforcement mechanism and because, after all, most of the state's leaders have called for its repeal. But something more is going on -- something captured in O'Connor's ambivalent opinion in the Michigan cases.

It seems that many of those in the American elite who would recoil at the idea of explicit quotas are happy to tolerate more subtle systems that accomplish the same thing. Even many avowed opponents of affirmative action seem unprepared to live with the full consequences of its abolition.

The Bush administration, for instance, has singled out for praise a Texas program under which students in the top 10% of their high school class are guaranteed admission to state colleges. Because Texas high schools are highly segregated, this program ensures slots for black and Latino students.

Affirmative action in higher education, as we practice it in the U.S. these days, may arguably provide some help for upper-middle-class minorities. Mostly, however, it allows us to pretend that our racial problems are simpler than they really are -- that a little "individualized assessment" can give us a fully integrated society, and that everything will be just fine in a few more years.

Meanwhile, we have done little to address, or even talk about, the real problems: the dramatic test-score gap across racial lines, the weaknesses of inner-city schools and the intensity of urban racial segregation.

Allowing large and systematic racial preferences while pretending to frown upon them gives us the worst of both worlds: complacency about racial disparities and a code of silence that prevents us from measuring, evaluating or assessing what we have wrought.


Some American insignia removed from the Battle of Normandy museum: [UPDATE: See also here for an alternative factual theory, which suggests that there's nothing at all untoward happening here; I don't know which factual theory is accurate.]

[FURTHER UPDATE: I can't exactly tell what to make of this further post on the Dissident Frogman site, but it does make me much less confident that any removal of insignia was going on. In any case, if you're interested in the subject, please read the material for yourself.]

If The Dissident Frogman is correct on this, then this is pretty bad. Go to the site and see the photos -- it's hard to do it justice without the pictures.

     Incidentally, to preempt any objections -- no, this isn't like renaming "French fries" into "freedom fries" (something that I thought was silly but not outrageous). Unlike French fries, the Battle of Normandy museum commemorates the liberation of France from the Nazis by the armies of allied nations. The symbolism of abandoning the term "French fries" is "we're peeved at the French." If the museum operators did indeed intentionally take down the American insignia (while leaving, incidentally, the British, the French, and in two instances the Canadian), the symbolism of that is "we're so peeved at the Americans that we're willing to deny them honor for helping rescue our nation from Nazi occupation." And that seems to me to be a pretty appalling symbolic statement to make.

     Thanks to Anticipatory Retaliation for calling this to my attention.


The usefulness of statistics: Today, Linda Greenhouse, in the New York Times, analyzes the recent Supreme Court Term. She writes, about O'Connor's pivotal role and trends in Supreme Court voting blocs:

There were 14 cases decided by 5-to-4 votes, accounting for 20 percent . . . . Justice O'Connor was in the majority this term in all but 2 of the 14 5-to-4 decisions. In five of those . . . she cast her vote with [the four conservatives]. In four others . . . she voted with [the four liberals].

That leaves five of the 5-to-4 decisions that fit no particular pattern. That is an unusually high proportion for the members of this court, who have now served together for nine years, a modern record. "Maybe the stability is leading them to act more like individuals and less as blocs," said Richard Lazarus, a professor at the Georgetown University Law Center and faculty director of its Supreme Court Institute. "To the extent that's true, the conservatives lose, because they are the ones with the potential to win through bloc voting."

As it happens, though, 5 out of 14 (35.7%) isn't particularly high as a percentage of "irregular" 5-4 decisions. The irregular percentage was higher this year than the last three years (33.3% in 2000, 25.9% in 2001, and 33.3% in 2002), but lower than the five previous years (between 37.5% in 1999 and 50% in 1995).

Take all the 5-4 decisions in the nine years together, and the total average of "irregular" decisions is 38.46% -- higher than last Term. (This is even putting aside the more basic question of why only “O’Connor + 4 conservatives” and “O’Connor + 4 liberals” is considered “regular”; both O’Connor and Kennedy are pretty moderate, and sometimes it’s Kennedy, not O’Connor, who joins the 4 liberals. In the 2000 Term, for instance, O’Connor joined the liberals 5 times, while Kennedy joined the liberals 3 times.)

Where does one get these numbers? In the statistics section of the Harvard Law Review’s November issues. This section is also useful for debunking Thomas-as-Scalia-clone myths; David Bernstein has already beaten me to the point, but here are some more specific numbers.

In the 2000 Term, Scalia and Thomas agreed 89.5% of the time. That’s as often as Rehnquist and Kennedy agreed, slightly more often than Rehnquist and Scalia (84.9%) or Breyer and Ginsburg (87.1%) agreed, and less often than Souter and Ginsburg agreed (90.6%). See 115 Harv. L. Rev. 540 (2001).

In the 1999 Term, Scalia and Thomas agreed 89.6% of the time. Compare with Rehnquist-O’Connor (92.2%), Souter-Ginsburg (88.3%), Rehnquist-Kennedy (85.7%), and Stevens-Ginsburg (85.7%). See 114 Harv. L. Rev. 391 (2000).

Let’s go back to a random year in the mid-1980s -- say, 1985 Term -- and observe that Brennan and Marshall agreed 91.0% of the time (compare with Burger-Rehnquist, 91.7%, Powell-Rehnquist, 87.7%, and O’Connor-Powell, 87.1%). See 100 Harv. L. Rev. 305 (1986).

And to top it all off, look at 1984 Term, see 99 Harv. L. Rev. 323 (1985): Burger-O’Connor (88.6%), Burger-Rehnquist (89.3%), O’Connor-Rehnquist (90.5%). Guess how often Brennan and Marshall agreed with each other? 100% of the time.


Cute: ABC News keeps its archives in a poll vault.


Arnold Schwarzenegger: My friend Sheri Annis, who worked for him in a California initiative campaign that he funded, has some very interesting thoughts about the special advantages and disadvantages that he'd have if he ran for California governor in the Davis recall race. Up at National Review Online this morning.


How can Congress ban drugs without a constitutional amendment? Reader Troy Loney writes:
I'm wondering why it took a Constitutional amendment to make alcohol illegal, while marijuana (and drugs in general) are routinely banned by legislation alone. . . .

Entirely aside from the [policy] issues of the War on Drugs . . ., the Constitutional questions are troubling. This has bothered me for a long time (since college, in fact, and I graduated over thirty years ago), and was the original issue which swayed me to libertarian philosophies. . . .
     Until the mid-1930s, the Court took the view that the power to "regulate Commerce . . . among the several States," even when coupled with the power to "make all laws which shall be necessary and proper for carrying into execution" the Commerce Clause power, only barred interstate commerce, and not manufacturing or purely local commerce. Banning all "manufacture, sale, or transportation" of alcohol thus required a constitutional Amendment.

     But in the mid-1930s, the New Deal Court reversed course on this, and began to uphold virtually every federal restriction on commercial activity (or activity even loosely tied to commerce), whether interstate or purely intrastate, on the theory that even purely local activity affected the national market, and thus regulating the purely local was "necessary and proper for" regulating the interstate. Thus, in Wickard v. Filburn (1942), the Court held that federal limits on growing wheat could apply even to wheat that a farmer grew on his farm for home consumption, since such growing displaced sales that would otherwise happen commercially, and thus indirectly affected the national market for wheat (especially if one considered not just this farmer, but all other farmers like him). The rule now is that
The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.
Under this approach, Congress can ban all manufacturing (or growing) of drugs, as well as all distribution, because such a ban would make it easier to enforce a ban on interstate commerce. Congress may likely ban all possession, too, though it's just barely possible that the recent United States v. Lopez (1995) decision, which limited Congress's power to ban possession of goods (there, guns near schools) may render unconstitutional the bans on mere possession.

     The War on Drugs may be related to some reductions in the scope of the Fourth Amendment's protection against unreasonable searches and seizures. It may also be related to some reductions in property rights, because of the growth of forfeiture laws (though fairly broad forfeiture laws were historically pretty well established, and recognized as constitutional, even before they were used in the War on Drugs). But I don't think it has materially contributed to the expansion of Congressional power under the Commerce Clause, though it's conceivable that it might help preserve this expansion, by maintaining a conservative constituency for a broad Commerce Clause as well as a liberal one.


People say that the L.A. Lakers should hire fewer black players, "to be more representative of the city they play in at a time when they are satisfying fans by winning." Oh, wait, that's not quite right -- after all, that would be horribly racist, and no-one would call for this sort of thing, right? Actually, people are saying that the Toronto Blue Jays should hire fewer white players, "to be more representative of the city they play in at a time when they are satisfying fans by winning." ("'You go to a Jays game when Seattle's in town and look at the number of Japanese fans in the stands,' [Peter Donnelly, director of the Centre for Sports Policy Studies at the University of Toronto] said in reference to the Mariners' Ichiro Suzuki." It must follow that if white fans would be more drawn by white basketball players, the L.A. Lakers should busily start trying to hire more.)

     The analogy, by the way, strikes me as very strong. If people are arguing about the need to disfavor some people based on race in order to remedy past societal discrimination, or counteract the effects of present discrimination or what have you, then I can understand why that argument would apply to disfavoring whites differently from disfavoring nonwhites. (I still wouldn't buy the argument for other reasons.)

     But when people are arguing about the need "to be more representative of the city" in order to "satisfy[] fans," that argument applies equally, I think, to all forms of racial proportionalism. If it's legitimate to satisfy fans by intentionally hiring more nonwhites and fewer whites, then it's legitimate to satisfy fans by intentionally hiring fewer blacks. Likewise, it would be legitimate to satisfy voters and legislators by getting a University of California that's "more representative of the [state]" -- admit many more Hispanics, somewhat more blacks, and many fewer Asians and (I suspect) Jews. After all, any group that's overrepresented means that other groups will be underrepresented, and the institution's funders (whether fans or taxpayers) might not be "satisf[ied]."

     Thanks to Matt Welch at Reason's Hit & Run for the pointer.


AS ALWAYS, Tom the Dancing Bug is worth a read.


Al Gore and the Internet: Reader Jack Sullivan points out that, while we're discussing misused quotes, it may be worth debunking the common assertion that Al Gore said that he invented the Internet. I agree: Al Gore didn't actually say this. I suspect that most people who hear "Al Gore said that he invented the Internet" realize this must be something of an exaggeration, because on its face the statement is so silly (Al Gore isn't a techie). But still, it's worth reminding people that he didn't literally make that claim.

     Here's an excerpt from the item on this subject:
No, Al Gore did not claim he "invented" the Internet, nor did he say anything that could reasonably be interpreted that way. The derisive "Al Gore said he 'invented' the Internet" put-downs are misleading distortions of something he said (taken out of context) during an interview with Wolf Blitzer on CNN's "Late Edition" program on 9 March 1999. . . .:
During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country's economic growth and environmental protection, improvements in our educational system.
Clearly, although Gore's phrasing was clumsy (and self-serving), he was not claiming that he "invented" the Internet (in the sense of having designed or implemented it), but that he was responsible for helping to create the environment (in an economic and legislative sense) that fostered the development of the Internet. . . .

However, validating even the lesser claim Gore intended to make is problematic. Any statement about the "creation" or "beginning" of the Internet is difficult to evaluate, because the Internet is not a homogenous entity (it's a collection of computers, networks, protocols, standards, and application programs), nor did it all spring into being at once (the components that comprise the Internet were developed in various places at different times and are continuously being modified, improved, and expanded). Despite a spirited defense of Gore's claim by Vint Cerf (often referred to as the "father of the Internet") in which he stated "that as a Senator and now as Vice President, Gore has made it a point to be as well-informed as possible on technology and issues that surround it," many of the components of today's Internet came into being well before Gore's first term in Congress began in 1977, and it's hard to find any specific action of Gore's (such as his sponsoring a Congressional bill or championing a particular piece of legislation) that one could claim helped bring the Internet into being, much less validate Gore's statement of having taken the "initiative in creating the Internet."

It's true that Gore was popularizing the term "information superhighway" in the early 1990s (when few people outside academia or the computer/defense industries had heard of the Internet) and has introduced a few bills dealing with education and the Internet, but even though Congressman, Senator, and Vice-President Gore may always have been interested in and well-informed about information technology issues, that's a far cry from having taken an active, vital leadership role in bringing about those technologies. . . .

Monday, June 30, 2003


Justice O'Connor's "equal protection" rationale in Lawrence v. Texas: Some people have argued that Justice O'Connor's opinion is more persuasive -- which reasoned that the government may ban sexual practices that it sees as immoral, but may not discriminate between same-sex couples engaging in such practices and opposite-sex couples engaged in such practices -- than either the majority or the dissents.

     But how exactly does this work? Justice O'Connor would presumably let legislatures discriminate between couples who are engaging in genital sex and couples who are engaging in oral or anal sex (otherwise, a state would only be able to ban either all sexual practices or none, something Justice O'Connor doesn't suggest). The legitimate justification for such discrimination, she would suggest, is the majority's moral judgment.

     Why then doesn't the same sort of moral judgment justify the discrimination between heterosexual oral/anal sex and homosexual oral/anal sex? After all, lots of people do think that homosexual sex is morally different from heterosexual sex. And they have about as much (or as little) justification for this moral judgment as they do for the moral judgment that oral/anal sex is morally different from genital sex (or, in some states, that anal sex is different from oral or genital sex).

     Perhaps the explanation lies in Justice O'Connor's suggestion that the Equal Protection Clause violation lies in the hostility to homosexuals that is exhibited by bans on same-sex sexual conduct -- the "bare . . . desire to harm a politically unpopular group." "Moral disapproval of this group," she reasons, "like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection." But this group is politically unpopular because it engages in sexual practices that Texas citizens think are immoral (same-sex sodomy); the moral disapproval of this group seems to stem from a moral disapproval of their conduct (for instance, devout Christians who oppose homosexuality, I take it, oppose it chiefly because of the prohibition on a form of conduct contained in Leviticus).

     Under Justice O'Connor's framework, moral judgments about sexual practices are permitted when they turn on the particular organs involved (even when there's no explanation for the distinction between organs other than "morality"). But they may not be made based on the gender of the person attached to the organs. Why is the latter (gender) any less a fit subject for moral judgment than the former (organs)?

     (I realize that there are other possible bases for the discrimination between people who engage in genital sex and people who engage in oral/anal sex besides mere moral disapproval -- but as I understand it, Justice O'Connor wouldn't require any such basis, and would find moral disapproval to be enough. And even if those other bases, for instance fostering of childbearing, are accepted, then it seems to me that similar bases may also be accepted for the straight sex/gay sex distinction.)

     So say what you will about the majority or the dissent, but they are at least consistent in their views of whether pure moral judgments are enough to provide a constitutionally sufficient basis for punishing noncommercial sexual practices among consenting adults. Justice Kennedy says no, Justices Scalia and Thomas say yes. But it seems to me that Justice O'Connor's in-between position is less persuasive than either of those two.


Diversity & Inclusion: Quick -- who's excluded from the diversity at's "Diversity & Inclusion Job Search" ? Let me give you a hint: It's not (except largely by accident) rich people, or descendants of slave-owners, or prep-school kids with wealthy daddies, or Ivy League grads with gold-plated credentials.


Graduating from college, 31 years later: The current issue of the Princeton Alumni Weekly has an interesting interview with Terry McCloskey, a man who started college in 1972; left two years later to travel around the world; settled in the jungles of Belize in 1980; raised a family there; and then returned to the U.S. in 2000 and re-enrolled in college. McCloskey just graduated from college in June, and is now headed to grad school. An excerpt from the interview:
How have things at Princeton changed since you were here last?

There are more buildings, but basically everything is the same. I think the percentage of prep-school kids has probably dropped. There is a huge difference in demographics. I don’t really hang out with students in general, but I find that the diversity is more genetic, or physical, than mental. A lot of people may have come from a different country or they’re different racially, but I don’t really see much diversity in terms of thoughts or approaches to a lot of things.

How difficult was it to be a student again?

It was hard. I don’t think the academic standards were as tough in the 1970s as they are now. I had difficulty with calculus and chemistry, especially, because I had never studied them before and because of being old. Chemistry was a killer, but I think it was the same for many students in the class.

The thing that really has changed is technology – computers. I had never even used a calculator before. When you hand in work now, it’s perfect. Back then, we typed everything, and we probably used carbon paper. You would take out a line, and you didn’t retype all 27 pages. You would scratch out the line and would hand it in like that, or you’d retype that one page and you’d have a gap at the bottom. It was tough to use my e-mail at first, too. Attaching and opening attachments was really hard for me in the beginning. I also hated doing any research on the Web at first. Before, you had to go to the library and actually find the journal to get journal articles. Now you use a search engine and find the author or the magazine, and you print it right out.


The excellent is planning to have some guest-bloggers. See Walter Olson's post here.


WNYC radio Tuesday morning at 8:05 am: I should be on WNYC radio in New York Tuesday morning at 8:05 am, talking about commercial advertising and the Nike v. Kasky case.


By the way... ...Robin Hanson tells me that you (that's right, you) are probably living in a simulation, a' la The Matrix.

Robin once played the following "trick" on me:

Question 1: What is the probability that our civilization reaches the point where it will create self-aware simulations of people?

My answer: Five percent, at most.

Question 2: If we can create simulated people, will there, over time, be lots of them?

My answer: I suppose.

Question 3: What will the ratio be of non-simulated to simulated lives, under that scenario?

My answer: One hundred simulated lives for every non-simulated life (imagine, everyone would have their own sims, who might even be more fun than blogs, you could let your sims blog too).

Robin's coup de grace: "So then you are saying that the expected ratio of sims to non-sims is about five to one? What makes you think you are one of the non-sims?"

Some of you may now wish to go back and revise your answers to these questions, but why is that legitimate? Do you have any real new evidence to cause you to revise your estimates? No.

And if we were sims, should we behave differently? Presumably it depends on whether other "simulated people" are at all real. Say they are. Then what?

Some of you may recognize antecedents of this idea in medieval theology, which at times suggested we were all simulations in the mind of God.

See for more on this.


A bit more on the Cheney quote: Reader Jim Christiansen agrees with my argument, but says that he is "dismayed that, with all the conservative foreign policy types who should have made this point, it took a moonlighting law professor to make it." Moonlighting law professor -- I love that. And that's exactly right; why didn't someone else prominently publicize it?

     Actually, someone else did catch it -- the Just One Minute blog made pretty much the same point that I did in late May, and again in early June. This led Brad DeLong to retract his earlier criticism of Cheney on these grounds. But I'm unaware that anyone in the mainstream media noticed (and I didn't catch it myself, which is why I reinvented that particular wheel). That may well happen to my National Review Online piece, too. It's much easier to get these myths going than to properly rebut them.


Gun lawsuits in New York: Walter Olson, of has an op-ed on the latest victory for gun manufacturers in New York courts (New York is not a state known for its gun-friendliness), and the defeat for New York Attorney General Elliot Spitzer -- it's here.


David Bernstein on Justice Thomas: David, a fellow libertarian law professor, posts:
Eugene over at the Volokh Conspiracy notes the tendency of many Justice Thomas critics to claim that Thomas is basically Scalia's stooge. I ran into this argument a few years ago on an African American studies listserv, and pointed out that Thomas votes with Scalia far less often than Thurgood Marshall voted with William Brennan, but no one accused Marshall of being Brennan's lap dog. I was challenged for exact statistics. I provided them from the Harvard Law Review's annual Supreme Court survey. But I was still met with the argument that Scalia must be dictating Thomas's opinions.

This issues reminds me of when Thomas was first nominated to the Supreme Court, and a raft of biographical sketches appeared, many with the theme, "how did Thomas come to such conservative views." The articles typically tried to assess the effect of various biographical or psychological idiosyncracies on Thomas. None gave any serious weight to Thomas's own explanation, which is that he read a lot, ranging from Ayn Rand to Thomas Sowell, and concluded that libertarianish conservatism made sense. I thought those articles were insulting to Thomas and to blacks in general, and still do. If whites can read and be influenced by Ayn Rand and Thomas Sowell, why can't blacks? And if Scalia can win grudging praise for the sharpness of this legal writings, why can't Thomas, who, if anything, is a bolder and more original thinker than is Scalia?
UPDATE: Kaimi Wenger points out that Thurgood Marshall's illustrious pre-Court career should immunize him from charges of being Brennan's stooge, and that Thomas's career wasn't nearly as illustrious. That's a fair point, but David Bernstein's point still seems to me generally quite sound.


"Cal Poly Student Punished for Posting Flier": The Foundation for Individual Rights in Education is alleging what would be -- if the factual claims that FIRE makes are accurate -- a clear First Amendment violation by Cal Poly San Luis Obispo. Here's an excerpt from FIRE's letter to the school's President:
This is our understanding of the facts. The Cal Poly College Republicans have hosted a number of speakers that some have deemed "controversial." On November 12, Steve Hinkle, a member of the College Republicans, was trying to re-post several fliers. These fliers promoted an upcoming speech by Mason Weaver, the author of the book It’s OK to Leave the Plantation. Weaver’s book argues that dependence on government programs is harmful to the African-American community and places them in circumstances similar to slavery. The flier consisted of nothing more than a picture of Mr. Weaver, his name, the title of the book in quotes, and information about where he would be speaking. (Mr. Weaver, by the way, is a distinguished graduate of UC Berkeley and a former specialist at the U.S. Department of Energy.)

That day, Mr. Hinkle entered the Cal Poly Multicultural Center to re-post a flier and was approached by a number of students who told him not to post the sign because it was, they claimed, disrespectful and offensive. Another student told him that he was violating the university posting policy. Mr. Hinkle’s efforts to discuss with the students what they found offensive about the flier were unsuccessful. At least one student threatened to call the California State University Police if he posted the flier. Mr. Hinkle left to check the posting rules. The students had succeeded in preventing him from posting the flier, but one or more of them still called the University Police to report him.

The reports of the University Police state that the students complained of "a suspicious white male [who was] passing out literature of an offensive racial nature." The students reported to another campus police officer that Mr. Hinkle was putting up "racist flyers" and that the fliers were not "approved." One officer investigating this claim established that the fliers were, in fact, approved.

It would be appropriate for some disciplinary action to have been initiated against students who prevent another student from posting a flier because they dislike and (in this case) misunderstand its content. At the least, the censors should have been notified that the suppression of protected speech has no place at a university. While the right to disagree passionately should be vigorously defended, attempts to obstruct speech should never be tolerated. What is so shocking about this case, however, is that Cal Poly decided not to punish the student-censors, but, rather, to punish the student who simply attempted to post a flier that included only factually accurate information.

The university offered a post hoc rationale for punishing this student, charging him with "disrupting" a "campus function." Apparently, the student-censors, who were eating pizza and chatting in the Multicultural Center when Mr. Hinkle sought to publicize a campus event, were part of a Bible study group. They claim that they were having a meeting that was interrupted by the attempt to post a flier.

This is an unconvincing rationale under any circumstance, but doubly so in this instance. First, the "group" was not a recognized student group and the "meeting" was therefore not a "campus function." Ironically, Mr. Hinkle was actually posting fliers for an event that was sponsored by a recognized student group and by the student government, and it is he who has the far better claim to "campus function" status. Second, there was absolutely no notice anywhere that a meeting was going on, and, as you surely know, it would be a most serious violation of due process to charge a student with an offense that it was impossible for him to know he was committing. Third, the area that Mr. Hinkle entered is a lounge open to all students, and he had as much right to be there as any student. Fourth, all accounts agree that the group was sitting in a common area eating pizza and that it was not until January -- two months later -- that anyone claimed that this had been a meeting at all. Fifth, all accounts agree that Mr. Hinkle, who only wanted to post a flier, was then approached by the students -- not the other way around. The Bible study students themselves initiated what they later claimed was his "disruption." Their claim that they subsequently had a hard time reconvening their meeting arose solely from their own reaction to the content the flier and the subsequent arrival of campus police, who were responding to their call. . . . All of this leads FIRE to draw the obvious conclusion: Mr. Hinkle and the CPCR are being punished for the content of their expression. . . .
There's more, which is all available at the link I give above. FIRE has also posted a response from Cal Poly's University Counsel, which says, in part:
Many of the facts and conclusions contained in your letter are incorrect. Most significant, Mr. Hinkle was charged with engaging in conduct which disrupted a student meeting, a content neutral rule applicable to all students. He was not charged because of his political affiliation or because some members of our campus community considered the flyers he attempted to post to be offensive. Additionally, many of your factual assertions concerning the circumstances related to the meeting Mr. Hinkle disrupted are incorrect. . . .
The letter doesn't specifically explain how the factual assertions are mistaken (if it had, I would have gladly quoted those explanations); again, the whole letter is available above.

     I have generally found FIRE's factual allegations to be quite reliable in the past, so I'm passing this along. Naturally, it may well be that some of the factual charges are mistaken -- but, as I said, if they're accurate, then this is a clear First amendment violation.


51% of American women oppose abortion, at least setting aside cases of rape, incest, or danger to the woman's life. I was pretty surprised by that, but that's what a poll -- commissioned by a group that certainly doesn't seem to be on the pro-life side -- seems to show. More here, in my guest-blogging for Glenn Reynolds on Thanks to Stuart Buck for catching this, and for pointing out an important conclusion, that applies whether you support or oppose abortion rights: If this is true, or even close to true, then it shows that one can't candidly condemn pro-life forces (at least those who would allow narrow rape/incest/danger-to-woman's-life exceptions) as being "outside the mainstream."


Good news and bad news for marijuana legalizers: The good news: A Zogby poll shows "that 41% of Americans agree that 'the government should treat marijuana more or less the same way it treats alcohol: it should regulate it, control it, tax it and only make it illegal for children'"; 57% disagree.

     The bad news: Of those 57%, 45.5% strongly disagree, and 11.5% somewhat disagree. (Of the 41%, 23.5% strongly agree, and 17.4% somewhat agree.) Those are huge strong negatives, which might help explain why, despite the 41% support, few politicians are trying to use drug legalization as a campaign issue. Another reason, I conjecture (but this is only a conjecture), is that the strong opposition is likely pretty constant throughout the country, so there are few states or even districts where the pro-legalizers can get a majority.

     More on this, including links, in my post today on, where I'm guest-blogging for Glenn Reynolds.


Meet Xerxes Xoe: Most people are familiar with habitual litigant John Doe; I'm told that he's the grandson of the noted author Anon. Richard Roe is pretty common, too. Paul and Paula Poe occasionally make an appearance, for instance in Poe v. Ullman, the 1961 case challenging the constitutionality of a ban on contraceptives. (That case was dismissed on procedural grounds, though the issue reappeared in the Court in the famous 1965 Griswold v. Connecticut case.)

     Less well known, though, are their cousins, who are listed in the caption of Friedman v. Ferguson, 850 F.2d 689, 1988 WL 68404 (4th Cir.). Here's the whole thing:
Wilbur H. FRIEDMAN, Plaintiff-Appellant, v. Thomas B. FERGUSON, Director, Department of Animal Control, a state actor, in his official and individual capacities; Brett Boe; Carla Coe; Donna Doe; Frank Foe; Grace Goe; Harry Hoe; State Actors, Advisors To Defendant Ferguson, In Their Official and Individual Capacities (identities currently unknown); Marta Moe; Norma Noe; Paula Poe; Ralph Roe; Sammy Soe; Tommy Toe; Private Individuals Who Conspired With the Foregoing State Actors (identities currently unknown); Roger W. Galvin, Chairman, Animal Matters Hearing Board; Vince Voe; William Woe; Xerxes Xoe; Members of the Animal Matters Hearing Board, State Actors, In Their Official and Individual Capacities (identities currently unknown), Defendants-Appellees
As you may have guessed from this post's title, Xerxes Xoe is my favorite, though Tommy Toe and William Woe are pretty good, too. Keep them in mind for your next frivolous lawsuit. (For the serious ones, John Doe #1-50 tends to be seen as a titch more respectable.)


Fluffy ducks: My friend Josh Bornstein just came by the office. "How are things?," I asked him. "Box of fluffy ducks," he replies. Apparently this is a Kiwi-ism, and he's trying to import it. Use it in good health. ("Box of fluffies," he says, works too, but that's likely to be less accessible to us parochial Americans.)


A new and vital thinker Check out the web page of Robin Hanson (, who provides a dizzying burst of ideas, defying all disciplines. I don't mean to speak for Robin, but on this blog someone has to, and that someone will be me. Here are some things that Robin believes, and can defend with great dexterity (and they just might be right):

1. Just as we use betting markets to best estimate the odds on football games, so should we use betting markets ("idea futures") to best estimate the effects of government policies.

2. Health care does little to make people healthier, once we adjust for wealth. Most of what we spend on health care is wasted, and we do it only to signal to others that we are altruists. Socialized medicine works as well as it does by making health care hard to get, not easy to get.

3. If you disagree with someone of comparable intelligence and intellectual honesty, once you have exchanged views, you are unjustified in believing you are more likely right than wrong. The persistent disagreement is a sign of your intellectual dishonesty (this one is co-authored with me).

4. The eventual possibility of computer "uploads" will drive wages to subsistence (i.e., the cost of producing uploads) and create fantastic returns to capital.

5. Someday the rate of economic growth will be incredibly, fantastically high, far above any estimate you have heard, as it was during the agricultural revolution, about 12,000 years ago. I once heard Robin mention 10,000 percent per year as a possibility.

Robin writes stimulating academic papers on these topics, I think he is far ahead of his time.


Hamidi decision: The California Supreme Court has issued its decision in the much-awaited Hamidi cyberspace trespass-to-chattels case, reversing the lower court. Read the opinion in .pdf form here.


Should e-commerce sites be forced to disclose hacks into their networks? Senator Feinstein has proposed a bill requiring e-commerce sites to disclose to their customers if the site has been hacked and a hacker has obtained a customer's personal data. I can't find a copy of the bill online, but in looking over a paper copy I have it seems that the bill is unclear on a very important question that has major privacy implications: what burden does it place on e-commerce companies to find out about intrusions that have occurred?

     This matters because when an e-commerce site has been hacked, the company usually doesn't know about the intrusion. And if it does know an intrusion occurred, the victim company ordinarily won't know whether the hacker just snooped around a little, or actually managed to see a lot. The big question is, would Feinstein's proposal impose liability on victims even if they didn't know they had been victimized? In other words, would it encourage victims to know about intrusions, and to investigate the scope of intrusions that they do know about? As written, the bill isn't clear about whether it merely requires companies to notify customers when companies know that private information has been obtained unlawfully, or whether it imposes an affirmative obligation on companies to figure out that they have been hacked, and if so, to know whose private information has been obtained.

    The resolution of this question makes a big difference to the incentives the law might place on companies to learn about computer intrusions that have occurred. If the law holds companies liable for intrusions they didn't know about, it would push them to monitor when an attack has occurred and to know whether private information has been obtained. This could have troubling privacy implications because it could effectively require companies to monitor what comes in and out of their network. Alternatively, if the law requires companies to disclose intrusions only if they already know about the intrusion, it may provide an incentive for e-commerce companies not to know what's going on in their networks.

    I think the basic idea of disclosure is a sound one. But I hope someone is paying attention to how this law could alter the incentives e-commerce companies may face about monitoring their networks.


"Maureen Dowd slanders Scalia": Ramesh Ponnuru at The Corner has an excellent post:
The justice comes in for some harsh words from Maureen Dowd . . . today. . . . [O]ne of Dowd's comments shows her sinking to a new level.

Writes Dowd, "Nino is too blinded by his own bloviation to notice that Americans are not as censorious as he is. They like the complicated national mosaic -- that Dick Cheney has a gay daughter, that Jeb Bush has a Latina wife, that Clarence Thomas has a white wife. . . ." Excuse me? Justice Scalia is "censorious" about interracial marriage? Where did that come from?


Wall Street Journal op-ed on the commercial advertising case: I've got an op-ed this morning in the Wall Street Journal on the commercial advertising case; it's not available for free online, but if you're a subscriber, you can get it here.


NICE Doonesbury yesterday, but John Lott (who else?) says the premise Trudeau's making fun of isn't crazy.

UPDATE: Matt Rustler comments.


"We believe he has, in fact, reconstituted nuclear weapons": I have a piece this morning in National Review Online on Cheney's March 16 statement that "We believe [Saddam] has, in fact, reconstituted nuclear weapons." Here's the introduction:
In the debates about whether the Bush administration "reckless[ly] exaggerat[ed]" the Iraqi threat, one charge is particularly striking: The contention that Dick Cheney tried to "mislead the American public" by his statement on March 16 that Saddam had nuclear weapons. We see this most recently in Nicholas Kristof's generally quite interesting New York Times piece:
Hawks need to wrestle with the reckless exaggerations of intelligence that were used to mislead the American public. Instead, Defense Secretary Donald Rumsfeld declared Tuesday, "I don't know anybody in any government or any intelligence agency who suggested that the Iraqis had nuclear weapons."

Let me help. Mr. Rumsfeld, . . . [m]eet Vice President Dick Cheney, who said about Saddam on March 16: "We believe he has, in fact, reconstituted nuclear weapons." likewise counterposed an earlier version of this Rumsfeld statement ("I don't believe anyone that I know in the administration ever said that Iraq had nuclear weapons") with Cheney's statement -- and called the Rumsfeld statement its "Whopper of the Week." Joe Conason in Salon similarly quoted the line, and faulted Cheney for his supposed "terrifying claptrap." The quote also appears at lots of other sites. And if indeed Cheney did try to mislead Americans into thinking that Hussein had nuclear weapons, that would be pretty grave misconduct.

But what exactly did Cheney say in that interview on March 16? At first, if you look at the excerpt from NBC News Transcripts, Mar. 16, 2003, you do see the quoted line:
MR. RUSSERT: And even though the International Atomic Energy Agency said he does not have a nuclear program, we disagree?

VICE PRES. CHENEY: I disagree, yes. . . . We know that based on intelligence that he has been very, very good at hiding these kinds of efforts. He's had years to get good at it and we know he has been absolutely devoted to trying to acquire nuclear weapons. And we believe he has, in fact, reconstituted nuclear weapons. . . .
But then if you do a bit more research, you see a rather different picture. . . .
For an explanation of why the picture is different, and why it's almost certain that Cheney simply misspoke, and meant to say only that Saddam had reconstituted a nuclear weapons program -- a less incendiary and more plausible allegation -- see here.


Now this is a shame: Katharine Hepburn. I haven't seen nearly enough of her stuff, but, oh, Bringing Up Baby, The Philadelphia Story, Adam's Rib, The African Queen, Desk Set (check out the Song of Hiawatha in there!), and especially, especially, The Lion in Winter, where she plays Eleanor of Aquitaine opposite Peter O'Toole's Henry II and Anthony Hopkins's Richard soon-to-be Lionheart.

She was said to have once said: "With all the opportunities I had, I could have done more. And if I'd done more, I could have been quite remarkable."

Sunday, June 29, 2003


Celebrity profs The Boston Globe's Patrick Healy, who broke the Harvard grade inflation story and who, with experience at the Chronicle, is one of the better higher-ed reporters at any daily paper-- and who, I should note, has been a good friend of some of my good friends-- has a big new story about celebrity professors and the institutional competition to attract them. There's some accounting confusion-- at one point he suggests that stars' salaries help to drive tuition increases, but he later recognizes their ability to impress donors and attract major-league grant money-- but it's otherwise a sharp piece, with wider perspective than the occasional NYT piece on the same subject (which is usually either an NYU-booster, or focused exclusively on Harvard, Columbia, and Princton).


The politics of Lawrence and sodomy I shan't try to match Eugene, Randy, and the rest of my esteemed lawprof colleagues here at the VC in commenting on the jurisprudential substance of Lawrence. Instead, allow me to indulge my comparative advantage and talk about the politics. (For the record, let me say that I share Randy's great enthusiasm. Bowers v Hardwick, decided when I was 15, and the accompanying increase in my awareness of the existence of sodomy laws, did a great deal to solidify and entrench my libertarian political views, and to provide me with long-term immunity to Republicanism. It was the only Supreme Court case decided while I was growing up that had anything like a formative impact on me- entirely in reaction against it. It might have been otherwise if the majority opinion in Bowers had, like Thomas' dissent in Lawrence, been careful to denounce the law; but the tone of that opinion was quite different from the tone of Thomas'.)

Thw Wall Street Journal editorialized last week that Lawrence may come to resemble Roe politically and culturally; that the Supreme Court's alleged willingness to "take a side in the culture war" will inflame rather than cool passions about gay rights, and that a possible long-term democratic liberalization may now be interrupted by a reaction to judicial overreach and the energization of political opposition to the decision. That's option A: Lawrence is bad for gay rights as a political cause and (a la Roe) a boon for the Christian right as a political movement.

Option B is that Lawrence is good for gay rights politically, because it deprives the of opponents of gay rights of an important political arguments-- when advocates press for gay adoption or gay marriage, opponents routinely deploy the "gays are sodomites and sodomy is a crime in this state"-- and because it puts an official imprimatur on the astonishing cultural shift regarding homosexuality in the past decade (it's been ten years, almost exactly, since the ugly 'Don't Ask, Don't Tell' fight) to fifteen years; and that it's good for the Democrats, because it brings to the fore an issue regarding which they're seen to be on the side of progress, decency, and agreement with the Supreme Court.

I'm predicting Option C. Lawrence will be good for gay rights and, if they're politically savvy rather than living up to their traditional label of being, tactically, 'The Stupid Party,' it will be good for the Republicans.

This is made up of several sub-predictions.

(C1a) Lawrence will not be Roe. It will not energize or excite the Christian right base any more than it is already energized or excited. It will not, crucially, bring anyone new into politics on the side of the Christian right who isn't already there. Roe helped to wake the sleeping giant of fundamentalist and evangelical southern white Protestant politics. It, along with some crucial fights about the regulation of private schools in the 1970s, brought that brand of Protestant politics out of the slumber it had been in for fifty years. It helped give birth to the Moral Majority, to the Falwells and Robertsons as political forces. It also contributed a great deal to the (largely temporary) Reagan Democrat phenomenon, bringing urban white ethnic Catholics out of their traditionally entrenched attachment to the Democratic Party. And it attracted many swing Christian voters (both white Protestant and white Catholic) to social conservatism, at least for a time; it came to serve as a synecdoche for both judicial overreach and, crucially, for social permissiveness. (Note that I am not saying Roe was a net disadvantage for abortion rights, an argument I know some have made. I'm agnostic about that. But it was, unquestionably, a net advantage for social conservatism as a political cause, and by the end of the 1970s for the Republican Party and the newborn Christian right.)

Lawrence will not replicate any part of this, for a couple of reasons. First, there is no sleeping giant to wake. The reactivation of southern white Protestant politics has happened already; and that politics hasn't gone back into hibernation. Indeed, it's become an apparently permanent political industry, the Republicans' counter to organized labor. Lawrence will serve as confirmation for the narrative of social liberalism, permissiveness, decadence, and judicial imperialism that is already told within that political community. But providing such confirmation, on a monthly basis in direct-mail fundraisers and newsletters, is what the political professionals who make their living on the Christian right do anyways. If it weren't Lawrence, it would be Will and Grace, or Mark Raciot meeting with the Human Rights Campaign, or W being insufficiently supportive of Rick "man on dog" Santorum-- or it would just be the latest monthly count of abortions.

(C1b) Second, sodomy is not abortion as a moral phenomenon. Abortion is, nearly everyone agrees, morally very complicated. The moral arguments against its legality aren't successfully met by "if you don't like it, don't have one;" the reasons offered for not 'liking' it, if they are valid, demand its prohibition. Many moderate voters were sufficiently morally uneasy about abortion to attract them to social conservatism, at least for a little while. Sodomy in 2003 will not attract moderates to social conservatism. The number of people who feel deep moral horror or revulsion at its legality is much, much smaller than the number who feel that way about abortion. The "ain't nobody else's business" argument is much, much stronger in the case of sodomy than in the case of abortion (which, according to its opponents, violates the harm principle). Republican and conservative elites will try to play the judicial overreach card; but they will not be able to play anything analogous to the "we've got to save little babies!" card. Even John "buggery, buggery, buggery" Derbyshire is unwilling to actually defend sodomy laws as a good idea. With all due respect to my former professor Robert P. George, who co-wrote a natural-law based brief trying to convince the Supreme Court of the merits of the Texas statute, that argument's just not a political winner.

(C1c) Sodomy is also not abortion as a cultural phenomenon. Roe took place when second-wave feminism and 'women's liberation' and the 'sexual revolution' were in full swing and deeply socially contentious and controversial. It came smack in the middle of the relevant culture war. Here, the relevant cultural shift has now happened. The cultural tipping point with regard to homosexuality has long since taken place. There remain committed and principled opponents of gay rights, of course. But Lawrence in 2003 doesn't play into a generally-felt crisis and anxiety the way Roe in 1973 did-- or the way Lawrence in 1973 or 1986 or 1993 might have.

Following on both (C1b) and (C1c): this is not going to be the issue that brings Latinos into the GOP as cultural conservatives. (Note that gay marriage, unlike sodomy, might have some of those effects. I doubt it; but I think it's possible that the brewing fight over gay marriage will attract some moderates and Latinos to social conservatism.)

(C1d) Finally-- here still on the claim that Lawrence will not work, as Roe did, to create a permanent rallying point and source of energy and recruitment for its opponents-- arguments about judicial overreach almost never succeed unless the electorate is also upset about the underlying substance. The reaction against Brown depended on the emotional energy of opposition to integration. There were some who simply believed, as a matter of principle, in states' rights on the question of school integration. There were some who believed, as a matter of principle, that the Supreme Court should be "doing" law and not social psychology. But Brown's salience as a political issue didn't come from such high-mindedness. The political salience of the opposition to the Warren Court's rulings on criminal procedure rested on unease about rising crime, not on a widespread commitment to originalism as a hermeneutic position. And Roe's salience depended on the tens of millions of people who passionately believed that it was right, indeed morally mandatory, for abortion to be illegal. The National Review- Clarence Thomas position-- that Lawrence represents judicial overreach in its abolition of a law that should be abolished-- is intellectually coherent, consistent, and admirable. It is also not the stuff of political energy. Lawrence is in that regard much more like Griswold than like Roe; and Griswold entirely failed to generate mass political opposition or to inflame feelings about contraception or to set back the cultural trend in favor of contraception. Indeed Lawrence is more like Griswold than it is like Roe in a number of other respects, too-- including the moral arguments and moral sentiments about the underlying act. Again, the "nobody's business" reaction has much greater weight, and there's no analogue to the "saving babies" claim.

(C2a) So, all of that said, why could Lawrence be good for Republicans? Precisely because it takes off the table an issue on which they were likely to be on the losing side of history. Sodomy laws are indefensible on the merits; Republicans who tried to defend them on the merits in order to please the cultural conservatives would have sounded increasingly absurd and out of touch with cultural moderates. The shorthand description of Republicanism as "the government out of your pocketbook and in your bedroom" is now going to lose its potency. Cultural moderates aren't sure about gay marriage, and the next big fight is going to be on that terrain. For there to have been a big fight about sodomy instead would have made Republicans look like troglodytes. As Jonah Goldberg said a couple of weeks ago, the big fight on the basic moral acceptability of homosexuality is over as a cultural and political matter, and the cultural conservatives lost. Sodomy laws represented an ongoing embarrassment and an ongoing reminder of the side they were on.

(C2b) Sodomy laws also represented a real wedge between the Christian right base in the states and even socially and religiously conservative Republican elites in New York and Washington. As I wrote several months ago, Andrew Sullivan's shock at Santorum's remarks and at the high-level Republican waffling about them was a result of the fact that the conservatives and Republicans he knows are all the ones he knows-- intellectuals, political leaders, and educated men and women in New York and Washington. He's never, as far as I can tell, spent much time around Christian Coalition voters in Red America. But his Republican Washington friends have spent time there, because those voters are the base of their popular and financial support. They can't antagonize that base; but they don't actually believe in the sodomy laws that their base spent energy defending at the state level. So they evade and avoid and waffle. Elite and base are united on abortion; they're mostly united on gay marriage. The issue on which they're divided has now been taken off the table.

In short: sodomy laws were ["were!" How wonderful to be able to write that] the most absurd and embarrassing face of social-cultural conservatism-- absurd always, and embarrassingly for the past several years, and increasingly embarrassing as time went on. For social-cultural conservative Republicans to be able to appeal past their base, they couldn't defend the laws. For them to avoid alienating their base, they couldn't attack them. For social-cultural conservatism to avoid looking increasingly anachronistic and foolish, sodomy laws had to be taken off the table and the subject had to be changed to other fights. Republicans have won victories with partial-birth abortion; they haven't and won't with mifepristone (the early-term abortion pill), with the morning-after pill, or with contraception. Those are losing issues-- and Republicans have been able to avoid taking them on because of Roe and Griswold. In the wake of the past decade's cultural changes, sodomy laws are losers, too-- and now Republicans can avoid taking on that fight, too, without alienating the hard core of opponents of legal sodomy.

I mentioned above the possibility that Republicans would, yet again, prove tactically stupid. That stupidity would be widespread adoption of Santorunism-- trying to argue in favor of sodomy laws themselves, trying to keep this fight alive instead of letting it die. I don't think that's likely-- but one never knows for sure...


Reader Response to My NPR Comments on Lawrence: A reader responds to the comments on the Lawrence v. Texas case I made on NPR's Hear and Now (that you can listen to using RealAudio by clicking here):
Frankly, I can't get as excited about Lawrence as you seemingly are. I'm not in favor of sodomy laws--but I am in favor of principled jurisprudence and I have doubts about how principled the majority's decision was. I'd like to be able to see it, as you do, as a sincere (or at least possibly sincere) statement of a general right of liberty. But given the majority's apparent lack of interest in certain liberties already backed up by enumerated rights--e.g., the right to keep and bear arms--I find it hard to take them at their word. . . . [snip] Of course putting a flash suppressor on one's AR-15 might not be as meaningful in the grand scheme of things as being able to enjoy intimate relations with the consenting adult of one's choice; however, being able to carry a handgun to defend one's life against criminal deadly force is at least that meaningful. Yet the one enjoys constitutional protection, while the other can be prohibited at will by the states (in the absence of state constitutional provisions to the contrary) despite an enumerated constitutional right, reams of scholarly analysis and long-standing practice from the earliest days of our Republic. (The early prohibitions against carrying concealed weapons didn't interfere with self-defense, since open carry was permitted and socially acceptable.) I'll be impressed if and when the majority demonstrates that the "right of liberty" really isn't just a handy ground for striking down laws that they don't agree with. I'm not from Missouri, but in this case I must insist that they show me.
These are all points well-taken and they allow me the opportunity to clarify my enthusiasm. I am not predicting that the Supreme Court will follow through on the commitment to liberty it endorsed in Lawrence and pessimism is entirely warranted. But we have to take Supreme Court opinions as we find them and run with them. There are bad ones, and good ones. My principal point is that, contrary to the criticisms of judicial conservatives, Lawrence is an excellent decision for liberty--both because of its outcome and because of the reasoning it used to get there (though it could have been far more persuasively written than it was)--and should be viewed as such. If it is followed by future courts even somewhat consistently it would prove revolutionary. Of course one decision does not a revolution make, and it is doubtful that Justice Kennedy intended to make one. But opinions and doctrines sometimes take on lives of their own. Lawrence may prove aberrational. Or we may one day look back on it as an important turning point in the constitutional protection of liberty. At minimum it is a significant step in the right direction.


Chemistry / optics kits: I got over a dozen responses to my query about chemistry kits and optics kits that could be used to show a bit of science to children. Most recommended Edmund Scientifics, and I in fact bought a bunch of stuff from there. I hope to try it out myself shortly after I get it, and then spring it on the kiddies; I might blog some of the results, though I make no promises. Thanks to everyone who helped out with this!

This page is powered by Blogger.