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Saturday, August 30, 2003


Obligations to police: This post argues:
The toll in Najef--now approaching 80 dead, including Ayatollah Mohammed Baqr al-Hakim--is a bloody affirmation of what everyone who doesn't report to Donald Rumsfeld has been saying for weeks--there are not enough occupation forces on the ground to maintain even a semblance of order and security in Iraq. None of us are lawyers . . ., but I believe the Geneva Conventions require occupying forces to protect "liberated" citizens from themselves and each other. That means that capturing and bringing to justice (not just shooting) the persons responsible for this horrible act of terrorism is OUR responsibility. There are three obvious groups of suspects: some Iraqis will claim that Americans did it but that doesn't seem likely since kicking a hornet's nest a second time only triggers a new round of stings; some will say the Sunnis did it to stir up trouble among the different Shi'ite factions; but, most likely, this is the work of the young hot head cleric Moqtada Sadr. Occupation forces have needed to clamp down on young al-Sadr for weeks. Now is the time to bite the bullet and do it.
Others have made similar points before about our obligation to keep order in Iraq.

     I'm not an expert on this particular area of the law; but obviously the affirmative obligation to protect citizens is necessarily quite different from the various negative obligations, such as not killing prisoners of war except after a trial for war crimes, not intentionally abusing civilians, and so on. No police forces -- whether in occupied territory or not -- can do a perfect job of protecting people, or even catching criminals after they've committed crimes. All police forces, whether they are the American soldiers in Iraq or the Los Angeles Police Department in my home town, must deal with various constraints, such as limited personnel, uncooperative civilians, the police department's own security concerns, and so on. There's no legal obligation to invest the maximum amount of money and troops possible.

     At some point, the level of protection may be so inadequate that it does indeed violate the Geneva Convention, or more broadly our moral obligation to protect innocent civilians in territory that we control. The precise level is impossible to determine as a legal matter, partly because there are no clear rules or legally binding precedents that we can look to. But the mere fact that there's a good deal of violence (whether perpetrated terrorists or street criminals), or even that (as I've heard was the case at the building in Najaf) American forces complied with a local preference for not having American soldiers too near a religiously significant building, does not, I think, show that the Convention has been violated.

     I do think that after an attack of this magnitude, American forces have an obligation to invest serious resources in going after the murderers (for lower-level crime, American forces, like any police forces, are entitled to conclude that they can only invest fewer resources). Moreover, as a purely military and political matter, even setting aside legal and moral obligations, I'm quite sure that the U.S. will indeed invest those resources.

     Finally, I think it would be great if we could capture the terrorists, so we can interrogate them and try them in a way that will prove to the Iraqis that the terrorists were indeed culpable. But if they don't allow themselves to be captured but instead fight back, it's perfectly proper for American soldiers to just kill them, just as enemy soldiers who don't surrender can quite properly be killed. We need not run a huge risk to American lives just to capture the terrorists alive, unless there are concrete military benefits to capturing them alive. Nothing in the Geneva Convention dictates any other approach.


Comprehensive religious worldviews and enforcing God's law: Larry Solum also points out that "[f]or many persons of deep religious faith, there is no line of separation between religious belief and beliefs about political morality. . . . If you believe in a comprehensive religious theory of the right and the good, then your stand on every public policy issue is religious."

     I actually agree with that, and I've long opposed arguments that laws are unconstitutional just because their supporters enact them for religious reasons. (Such arguments have often been made, for instance, against laws that bar government funding for abortions, as well as against anti-sodomy laws.) Religious people are just as constitutionally entitled to enact their religiously founded morality into law as are secular people (though they are equally constrained as secular people by certain constitutional constraints). And they are generally just as morally entitled to do so.

     But I think that even people whose "stand on every public policy issue is religious" nonetheless acknowledge a need to distinguish those public policy issues where religious law should, in their view, be directly applied (e.g., murder, theft, etc.) from those issues where even violations of religious law should be tolerated (e.g., worship of other Gods, Sabbath-breaking, coveting another's property without acting on this coveting, failing to honor one's parents, so long as the dishonoring isn't egregious enough). The toleration of Hindu practices is one classic example of this worthy refusal -- a refusal that, as was pointed out below, may well itself be religiously based -- to have man's law enforce God's commands.

     Recognizing this distinction between religious laws that should be enforced by secular law and those that shouldn't be so enforced shows that "Homosexuality is against God's law, and therefore must be punished by the legal system" is not itself a sufficient argument. Christians who want the secular law to enforce such prohibitions thus have an obligation, within their own moral system, to provide some other reason besides Leviticus for their proposals. And it is that reason -- which, incidentally, is probably more subject to pragmatic analysis than just a Leviticus-based argument would be -- that should be the heart of the debate.


Tolerance and choice in religion and love: Larry Solum has a characteristically thoughtful and detailed post responding (partly in agreement and partly in disagreement) to my Hindus and Homosexuals argument. I wanted to respond separately to two of his points, one in this post and one in another that I'll post shortly.

     Recall the core of my argument: Hindus, I pointed out, violate three of the Ten Commandments -- they worship other Gods, not the Christian God, they create graven images, and they don't keep the Sabbath. But many American conservative Christians still believe that Hinduism should be tolerated (it shouldn't be banned, and Hindus shouldn't be excluded from, for instance, government jobs), even though they violate these seemingly important Biblical laws.

     If that's so, I argued, then it's not enough for those Christians to say "Homosexuality shouldn't be tolerated by the American legal system because it violates Biblical law." The toleration of Hindus and other non-Christians shows that many Biblical laws, including some very important ones (such as the Commandments), are a matter for God, not man to enforce: The American legal system has no business enforcing them, unless there's some other reason (such as a harm to nonconsenting third parties) for them to be enforced by man's law, besides the Biblical prohibition.

     Larry suggests that modern Christian toleration of non-Christians stems from a different principle that doesn't carry over to homosexuality: The now broadly accepted Christian principle that "the individual must come to faith through individual choice rather than coercion." Homosexual conduct, the argument would go, wouldn't be covered by this principle, while Hindu conduct would be.

     But I don't think that's enough of a distinction. After all, one classic Christian objection to homosexuality is that it's an abuse of the body that God gave one, and inconsistent with God's plan for how people should behave. Why doesn't the principle equally apply that "the individual must come to [abstinence from homosexuality]" -- itself a matter related to God's plan -- "through individual choice rather than coercion"?

     One possible response, as I'd mentioned before, is that the "must come to faith through individual choice" principle applies only to belief, not to action. But the Hindus break commandments related to action (no graven images, must observe the Sabbath) as well as to pure belief (not having gods other than the God of the Ten Commandments). In fact, a Hindu could comply with all the demands of his faith and still observe the Sabbath, in the sense of treating that day as special, just as a nonreligious Jew can observe the Sabbath by abstaining from work on that day (even if he can't fulfill the entire Commandment by actually treating the keeping of the Sabbath as an act of worship). But many conservative Christians wouldn't want the law to punish Hindus for disobeying even that Commandment. "The individual must come to [keeping the Sabbath] through individual choice rather than coercion," they would say. But, again, why doesn't that extend to "the individual must come to [abstinence from homosexuality] through individual choice rather than coercion"?

     Moreover, even if one treats the choice of a romantic partner as categorically different from choice of whether to accept God, to create idols, or to observe the Sabbath, why shouldn't these different choices still be equally tolerated?

     Christians would tolerate, and rightly so, a Hindu's breaking the Christian Commandments in his choice of faith, even when they think the Hindu is wrong. They would tolerate it even though they may believe that society would be better off, in a variety of ways, if everyone were sincerely Christian. They would tolerate it even though the Hindu's error may, in their view, deny him salvation.

     They would tolerate it even though the Hindu's error may interfere with the salvation of other people, including their own friends and children, who may be deluded by the Hindu's example into following false gods rather than the true one. That is all to their credit -- errors in religion, they acknowledge, may be serious errors, but that doesn't mean they should be enforced by secular law. Why shouldn't the same apply, though, to what they perceive as errors in deciding whether to choose a life partner of the same sex as opposed to a life partner of the opposite sex?


Shocking news -- there's truth out there on the Internet: Bill O'Reilly is apparently complaining that Schwarzenegger's Oui interview is available on the Internet: "But the other thing is that the court system in this country does not protect anybody in the public arena. You -- look, with the rise of the Internet -- you see the vile stuff on the Internet? You could say anything you want about anybody."

     The only trouble, as Matt Welch points out, is that in this instance, the Internet provides perfectly accurate material -- the Oui interview actually happened, it's apparently been reproduced correctly on the Internet, and in any event it was originally published in non-Internet media during the pre-Internet era. What exactly is the problem with that? Thanks to InstaPundit for the pointer.


Still More on the Written Constitution: There have been some interesting reactions to my two original posts on originalism and the value of a written constitution (here and here). First, there is this response by drug policy expert Mark Kleiman:

Randy Barnett comes up with an interesting argument for one version of Constitutional originalism.

But he seems to gloss over one small point. If he's right, then the Constitution we have actually been living under for the couple of centuries differs in important ways from the Constiution as drafted, which he claims is the only real Constitution because only an unchanging text can bind officials.

So what are we supposed to do now, throw out all the precedents and start fresh? How is anyone supposed to know what the law is if the judges ignore precedent? Even if it were true that living by a document of unchanging meaning is the only guard of liberty, it's hard to see how to get there from here. . . .
The issue of transition to original meaning is interesting and I would like to hear more from others on this issue. As I observed in my last post, much of what the courts do is put the constitution's text into practice by devising constitutional doctrines or law--what Keith Wittington and I call "constitutional construction." Think of the "content neutrality" doctrine as a means of putting the First Amendment into effect. Doctrines such as these, once anounced, should not be set aside lightly without violating the requirements of the rule of law, so long as they do not contradict the original meaning of the text. When that is the case, I think the text should trump any constitutional law that violates it, (but this is not a matter I have written about so I am less confident here than I am in areas to which I have given much thought).

The supposedly radical conservative Rehnquist Court appears to be trying to draw a line that says, "this far but no farther." As I have explained in, "Is the Rehnquist Court an 'Activist' Court?," resting as it does on the nonoriginalist concept of "economic activity" (as opposed to "trade and exchange"), its Commerce Clause approach seem tailored to stay within existing precedent (like Wickard v. Filburn) and grandfathering in every government program that currently exists, while putting some restrictions on Congress from going farther. Then again it has only done this a couple times and it is hard to know what exactly it is up to. Whatever it is, though an important departure from the post-New Deal jurisprudence, it certainly is pretty moderate. (More on the current court below.)

As for me, I would certainly be open to honoring promises made by the government to identifiable persons who have relied upon them . . . though this seems a more compelling commitment to make to retirees than, for example, to agribusinesses receiving massive corporate welfare. But I see no reason to lock in institutions upon which no reasonable reliance claims can be made. When you hear "reliance" arguments, notice how transparently flimsy they normally are in application.

Mark concludes:

Barnett also needs to explain how it is that a country living under (on his account) effectively no Constitution at all has done so well for itself.
There are at least two answers to this comment. First, the Constitution has redundancy built into it, so the redaction of certain clauses has been compensated, to some degree, by other clauses. For example, enhancing the protection of enumerated rights--or expanding their definition--has compensated somewhat for the virtual elimination of the scheme of enumerated powers. (To see how this works, notice how in U.S. v. Lopez, the Court did not need to reach the Second Amendment issue because it found Congress exceeded its powers.) In the absence of enumerated powers, the courts often then must confront the constitutional backup added at the insistence of the antifederalists: the Bill of Rights. I have described this as the lifeboats added to the ship to be used when the structural constraints on which the designers intended to rely fail. The problem with this backup strategy is that so few natural liberty rights were eliminated. This is the slack that the Ninth Amendment was supposed to pick up--the life jacket on the lifeboat--but due to misinterpretation has been virtually eliminated from the text.

Sometimes, other passages have been distorted to compensate for departures from original meaning. For example, the Due Process and Equal Protection clauses have been morphed from their original meanings to take up the slack left by the excision of the Privileges or Immunities Clause (though with some cost to the perceived legitimacy of this form of judicial protection). In addition, other structural constraints still exist to constrain government power to some degree in the absence of the now-missing passages of text. It is like we are on a submarine with 3 of 5 (pick your own ratio) compartments flooded but sealed off from the rest. Such is the performance of a well-designed sub. But we cannot be overly sanguine about this--particularly when the analogy is not entirely apt. The sub is still working fine, let's assume, whereas our constitutional order is not.

Which brings me to my second response. I do not share Mark's view that everything is just hunky dory. Our constitutional order is like having the original Constitution with a big "progressive" goiter on its neck. It is functioning pretty well, but would be doing much better without this growth. I would operate to remove it while others because they like it approve of changing the Constitution to allow it to remain. In fact, that seems an implicit concession of Mark's point: we HAD to change to Constitution to do so well as we have. I and other disagree. This is the true debate. I would like to see more truth in constitutional argument where it is frankly admitted that the Constitution under glass in Washington is not the one favored by the progressives or conservatives and we can then openly debate the merits of deviating--as well as the policy of deviating--from the text to reach "better" progressive or conservative results. As I have repeatedly argued, when conservatives disregard the Ninth Amendment and Privileges or Immunities Clause (and sometimes the entire 14th Amendment) they are as guilty of constitutional redaction and "activitism" as progressives.

Finally, I received this query from a reader:

What to make of the fact that self-professed "originalists" have construed the 11th Amendment to mean something it manifestly does not say? It says that the judicial power of the federal courts shall not extend to suits brought against a state by the citizens of another state or another country, but has come to have a much broader meaning than that, largely through construction by conservative judges.
First of all, as I just suggested, I hold no brief for conservatives who deviate from original meaning. Second, the seminal so-called "11th Amendment" cases all explicitly concede that their results are not based on the text (or original meaning) of the 11th Amendment. Instead they are based on 100+ year old precedent (Hans v. Louisiana and its progeny) and the "underlying principle" of federalism. Here conservatives are doing what others, like Mark Kleiman, insist is proper. In my view, by contrast, this latter type of argument makes it a constitutional construction that, if it violates the text of the Constitution, is improper. I just do not want to get into the merits of this body of doctrine now, as it gets very complex very quickly, but I am fully prepared to condemn it as conflicting with original meaning notwithstanding its very long historical pedigree (see above).

Well, I need to run along now to my APSA panel on natural law (sponsored by the Committee on the Political Economy for the Good Society). As I previously posted, my paper "The Imperative of Natural Rights in Today's Society" is available for download here.


The Onion is profitable Here is an interesting article on how, when so many Internet sites have failed, The Onion makes money.


Consistency test? Today's New York Times tells us that the bombing in Iraq, which killed a moderate Shiite leader, "dealt a blow to American efforts to establish order..." Other papers have said pretty much the same. But when the United States, or Israel, kills terrorist leaders, are we not told that dozens will rise to take their place, making the movement stronger than ever?

Friday, August 29, 2003


The National Constitution Center--A Different Perspective I too visited the National Constitution Center recently, and had a vastly different impression of the opening presentation from Randy Barnett's and Larry Solum's. It was, to my eyes, brilliant, and deeply moving.

It's true that the presentation (which, as I wrote on my own blog, reaches out and grabs the visitor's attention by using a live actor with film and music accompaniment) highlights American history more than it does the Constitution. But I do not view this as a flaw, especially in a museum that is trying to reach John and Jane Q. Citizen, not John and Jane Q. Law Professor. I saw the presentation as drawing attention to two things: the originality, promise, and perpetual reworking and renewal of the American constitutional experiment in self-rule (on the one hand), and the (primarily equality-based) flaws embedded in that experiment (on the other). Sure, neither of these themes turns on a precise reading of Articles I, II, or III. But don't those themes capture the essence of American constitutional history about as well as you're going to be able to do for the general public in 18 minutes?

My own little quibble with the exhibit areas (as opposed to the opening presentation) is that, in the midst of chronological displays about major moments and decisions in American constitutional history, the museum almost completely omitted a little event called the Japanese American internment and a little decision called Korematsu v. United States. I know that because of my own research interests and my own scholarship, I am not a neutral commentator on this point. But surely a narrative about the history of American civil rights ought to include what many regard as the largest-scale judicially endorsed American civil rights violations of the twentieth century.


From the APSA in Philly: Walking Among the Framers: I had a wonderful and surprising experience yesterday when Larry Solum and I visited the National Constitution Center. After a somewhat disappointing initial presentation which said far too little about the Constitution as compared with the history of the United States (read Larry Solum's take on it here), and a quick stroll through the very glitzy museum displays, we hit an exhibit that blew me away. It was a room full of full scale sculptures of the framers of the Constitution. You could walk among them, look them in the eyes, study their features. It was like a primitive virtual reality machine which brings you inside their meeting room. For anyone who as read the words of so many of these men, the effect of being among them was truly and unexpectedly moving--like a science fiction episode where everyone but you is frozen. I will refrain from making comments on their differing physical appearances and stances. If you follow the constitutional debates and ever get to Philadelphia come see this exhibit.


I Am Very, Very Old Duran Duran won a "Lifetime Achievement Award" at the MTV Video Music Awards last night.



All the Erotic French Kissing that's Fit to Print The New York Times today continues along its arc toward porn.

Earlier steps in the process were traced here.

Tina Brown tried this at The New Yorker, but it didn't work. Bill Keller, it seems, has figured out what Tina Brown missed: sexy talk is interesting, but sexy pictures sell.

Jeez. Hugh Hefner could have told her that.

Thursday, August 28, 2003


The UN in Iraq? Here is a critical and insightful account of how well the UN did ruling over the reconstruction in Bosnia. They have been unwilling to make tough political decisions and the UN bureaucracy has stifled reform and progress. I visited Bosnia last summer (an unforgettable trip, highly recommended) and thought it was limping along on aid, with no real economic progress. As of 2001, per capita income was $880. Unemployment of about 50 percent. Most young people want to leave the country. Ethnic wounds are not really healed, they are just papered over.

On the other hand, peace reigned. I never felt in any danger during my visit. Perhaps mission creep makes the UN, in some ways, a suitable administrator for a previously violent area. Bureaucrats don't want to be shot at and will favor pacification at the expense of solving long-run problems (maybe this is the best that can be done sometimes). Furthermore the UN shows no signs of "pulling out prematurely." Once certain bureaucratic jobs are in place, it is hard to get rid of them. But don't expect a clear plan of action, or resolution of the difficult issues facing a country.

So if Bush takes the plunge and cuts a deal with the UN, I forecast more peace in the short run, less progress and reform in the long run. Another form of deficit spending, you might say.

Here is a bibliography if you wish to research the issue of the UN in the Balkans.


Power blackout in London provides one summary of today's event. The power grid appears to have failed, leaving downtown London without power at rush hour. Service was restored more quickly than in New York, there were many immediate problems, mostly involving transportation, but it appears to have been a quick recovery.

You may know that the British privatized their electricity system in the late 1990s, allowing competing generation (to some extent) while keeping a monopolized grid. Eminent British economist Stephen Littlechild provides one good and readable summary of the reforms. Here is some good evidence that prices have good down since competition was introduced.

The Reason Foundation provides a sympathetic account of this privatization as well.

Dieter Helm's recent book provides a comprehensive look at the British experience and takes a more critical approach. He calls for a "transformation of networks" in light of increasing power scarcity (sound familiar?) but argues that public policies toward this end are ill-defined (sound familiar?). Here is a story about one Brit who predicted today's blackout.

The key questions in Britain, as in the United States, are: 1) who has an incentive to keep up the quality of the overall grid? and 2) to what extent are prices free to regulate demand? Partial deregulations will court disaster unless they can address these issues with some success. As usual, I recommend that you consult the electricity goddess, Lynn Kiesling for a running analysis of these questions.


Body Counts and "What Started this Whole Thing" Ed Cone usually makes all kinds of sense, but this post, to me, doesn't. Ed argues that the American "body count" should not start with those killed after the cessation of official hostilities in the Iraq war, but with the 3,000 killed on 9/11/01.

I confess that I'm not clear on what the purpose of keeping in mind a correct "body count" is, but if it is to help us assess what ought to be the degree of our commitment to seeing the process through in Iraq to some imagined successful outcome, then I'm hard pressed to understand why the 3,000 9/11 victims belong in the tally. "Let's remember what started this whole thing," Ed urges. But on just about any account, the Iraq war is a "whole thing" that 9/11 did not start. Maybe Saddam's program of weapons of mass distraction, er, I mean destruction started it. Maybe Saddam's human rights abuses started it. Some say (although I don't believe) that Saddam's tempting oil reserves started it. But it is an absurd stretch to say that Osama bin Laden's attacks on 9/11 started the Iraq War. Isn't it?


Symposium: Law, Loyalty and Treason I am pleased to announce that on October 10, 2003, the North Carolina Law Review will be hosting a symposium entitled "Law, Loyalty, and Treason." Legal scholars and historians from across the country will gather to address questions of how law does and should (or should not) regulate and enforce expectations of national loyalty. Legal academics include George Fletcher, David Cole, Gabriel "Jack" Chin, Bob Turner, John Barrett, Elizabeth Hillman, Bob Strassfeld, Marion Crain, Bobby Chesney, and yours truly. Historians include Ellen Schrecker, Michael Parrish, and Kathleen Kennedy.

My contribution will be a paper about a little-known treason prosecution from 1944, in which the government charged three Japanese American sisters with treason for assisting a couple of German POWs to escape from their POW camp. The sisters were convicted of conspiracy to commit treason and sent off to federal prison for a couple of years. The trial was grossly unfair, and its unfairnesses will tell us a good deal about the dangers of using the criminal law to enforce understandings of national identity.

A highlight of the symposium will be the lunchtime keynote by U.S. Circuit Judge Michael Chertoff. Chertoff was the Chief of the Justice Department's Criminal Division from early 2001 until just a month or so ago, and spearheaded the government's domestic law enforcement efforts in response to the terrorist attacks of September 11. His talk promises to be fascinating.

Y'all come on and join us now, y'hear?


Alan Greenspan on Ayn Rand Alan Greenspan once wrote the following to the New York Times Book Review, circa 1957:

"To the Editor:

Atlas Shrugged is a celebration of life and happiness. Justice is unrelenting. Creative individuals and undeviating purpose and rationality achieve joy and fulfillment. Parasites who persistently avoid either purpose or reason perish as they should. Mr. Hicks suspiciously wonders "about a person who sustains such a mood through the writing of 1,168 pages and some fourteen years of work." This reader wonders about a person who finds unrelenting justice personally disturbing.

Alan Greenspan, NY"

From Jerome Tuccille's new Alan Shrugged.


Liberal Theory at the Negotiating Table? A colleague of mine here at UNC has proposed that interested colleagues gather to discuss Andrei Marmor's paper "Entitlement to Land and the Right of Return: An Embarrassing Challenge for Liberal Zionism." Here is its abstract:

This essay undertakes a liberal critique of the legitimacy of Israel's territorial holdings and its refusal to acknowledge the right of return for the Palestinian refugees. In the first section, the article examines the distinction between Israel's alleged entitlement to the territories it occupied and resettled during the war of independence and those it occupied and resettled in 1967, arguing that from a moral perspective both episodes of conquest are tainted with illegitimacy, and that the former does not fare any better than the latter. In the second section, the essay provides a detailed analysis of the Palestinians' right of return, drawing on a distinction between two main types of argument which have been proposed to rebut such a right: liberal individualistic arguments and the Zionist-demographic argument. The essay argues that from a liberal perspective, both types of argument fail, and therefore Zionism could not claim to adhere to basic liberal values unless it acknowledges the right of return for Palestinian refugees.

I am going to attend the discussion if it happens, even though I suspect it will quickly spin into smug Israel-bashing, but I have a nagging doubt about scholarship of this sort (however analytically sound and brilliantly argued it may be): The Israeli-Palestinian conflict seems to me to have had its genesis (so to speak), and to be running its course without regard for the niceties of any moral theory, liberal or otherwise.

To ask whether Israel's negotiating positions do or do not conform with liberal theory is, I think, rather like asking whether bumblebees ought aerodynamically to be able to fly. It's an interesting thing to think about, but how does the inquiry really matter?


Blogging from APSA Through Sunday, I am attending the American Political Science Association annual meeting in Philadelphia and do not know if I will able to blog much from there. On Saturday afternoon, I am on a panel giving a VERY short (5 pages) paper on The Imperative of Natural Rights in Today's World. If you are interested, you can access it here. (I am sure that, as always, there must be lots of typos, etc. that will be cleaned up in the editing process, so please overlook any you may come across.)


Eric Muller: My fellow constitutional law professor Eric Muller, of the IsThatLegal? blog will be guest-blogging again here today and Friday. As I've mentioned before, I've e-known Eric for a long time through various online discussion lists, and have always liked his comments; and the quality of his blog -- as well as the quality of his posts when he's visited here in the past -- has confirmed my respect for him.

     Eric is, I'd say, a moderate Democrat (which, I'm told, makes him seem like a raving right-winger in some educational institutions), so you may find that his views diverge in some measure from the views of most of the permanent Conspirators. But that itself should, I think, make his presence particularly interesting and helpful -- I think our readers will very much enjoy his contributions. Eric can be reached at isthatlegal at


Things you probably didn't know about Israel (1) Israeli music radio stations seem to universally play what to my untrained ear appear to be completely random selections of music. On one typical morning heard an American rap song, followed by an Israeli ballad, followed by a Spanish disco song, folllowed by a 1980s British pop hit, etc., the kind of variety one might hear on a bad college radio station in the U.S. It strikes me that only the most non-discriminating music fan will enjoy all of these types of songs, yet market segmentation does not seem to have occurred to the powers-that-be.

(2) Land is extremely expensive in the center of the country where most of the population lives. As a result, almost everyone in this part of the country (including Tel Aviv and Jersusalem) lives in apartments, only the very wealthy have private homes. I'm sure that one of the great attractions of the close-in non-ideological settlements in Judea in the West Bank was the ability to own a private home with a yard, or at least have a bigger apartment, courtesy of cheaper land prices and government subsidies. Apartments near Tel Aviv or Jerusalem are quite expensive relative to post-tax income, and there are no mortgage interest deductions. Parents of newlyweds are expected to provide substantial assitance toward the purchase of an apartment, and a leading cause of marital strife is that one spouse believes that the other spouse's parents have reneged on a commitment of financial assistance.

(3) Stray cats are everywhere. It's hard to be a cat lover in Israel. Apparently, when the British left in 1948, they left their cats behind, creating an ongoing problem of strays. To most Israelis, the cats are considered like squirrels or pigeons in the U.S., somwhere between cute and a nuisance. There is a hardcore cadre of Israeli catlovers, as witnessed by the cat food one sees scattered on the street every once in a while, and the used book shop I went to whose owner spends its proceeds on cat food. But the cat lovers don't seem to be able to organize themselves to get the government to find a humane solution to the cat problem, or to find one on their own.

(4) The cat lovers' organizational problems seem endemic to Israeli society. Surprisingly, given the strong Jewish diaspora tradition of communal organizations and self-help, civil society here is rather weak. As best I can tell, this is attributable to three factors: first, strong political centralization that makes local organizations politically weak and difficult to organize; second, the constant state of war pushes all other issues to the sidelines; and, third, the strong (but dying) socialist tradition in Israel discouraged the development of non-state civil institutions. Indeed, the latter two factors are related, in that many Israelis feel that since they have to serve onerous military duty (three years for men plus a month a year until age 39) that the state is supposed to take care of them in return. People who would either forsake government aid if possible, or volunteer their time to create non-state charitable institutions, are liable to be considered suckers.

(5) One often hears that most Israelis are "secular" but that term is easily misunderstood in the Israeli context. Most Israelis voluntarily keep far more Jewish traditions than their Reform or Conservative American counterparts, and can't help but do so involuntarily. All the offices at Tel Aviv University, for example, have mezuzot (the very rough equivalent of crosses) on their door posts. Even in "secular" Tel Aviv, the vast majority of restaurants seem to have kosher food. One often hears that there aren't many kosher restaurants in TA, but that only means that the local rabbis won't given them an official certificate because the restaurants are open on the Sabbath. However, most restaurants serve kosher meat, don't mix meat and dairy, and otherwise observe all of the kosher dietary laws. "Secular" in Israeli terms means that one has as little as possible to do with the strictly Orthodox state-financed religious institutions, which include the synagogues. Secular, in other words, seems to primarily mean anti-clerical, and I've met Israelis who call themselves secular but would be considered quite observant in American Jewish terms.


Mr n vwls n hbrw Reader Adam Raizan sent a very thoughtful email on why vowels are not used in Hebrew publishing:

First of all, once you've gotten used to reading Hebrew, wowel points don't help at all, and are actually a distraction. Some English-language dictionaries use diacritics on vowels in order to show pronunciation without rewriting the word in a special phonetic alphabet, but it would be extremely distracting to someone familiar with the language to see those diacritics on every word in a regular text.

Second, it takes time to write or type vowel points. It would probably be something like writing or typing an accent mark on every other letter, and since they are very rarely needed for understanding and they aren't actually part of the letters themselves, there is a natural tendency to just skip them.

Third, the phonology of Israeli Hebrew is different from the phonology of Tiberian Hebrew, for which the vowel points were devised, and thus to correctly vocalize a text, you must have knowledge of a fairly large number of picky details in order to distinguish between the different vowel points which are pronounced identically in Israeli Hebrew. Though everyone studies the rules in school, most Israelis would not be able to correctly vocalize a text, and even someone who has a good basicknowledge of the rules would still make numerous mistakes because of exceptions and less common rules.

I think that non-vocalized Hebrew text could be considered analogous in some ways to English spelling. It would be easier for non-native English speakers to simplify English spelling, but for native speakers or people who are experienced with English, a spelling reform would cause more distraction than it would be worth. Unlike English, it wouldn't be a savings even in the long run, because once you gain experience in Hebrew, vowelless text is simpler and easier.
I especially like the point about how we don't publish English with diacritics on vowels to show pronunciation. Indeed, we don't even do this for early childhood literature, while in Israel basic children's books do have vowels. Anyone who has sat (suffered, in my experience, but that's a topic for another post, on deficiencies in grade school education) through a second or third grade class in which one of the slower kids is asked to read aloud knows how difficult it can be to for those with poor reading skills to correctly pronounce English vowels in different words.

Wednesday, August 27, 2003


The Battle of Algiers: Reason's Charles Paul Freund, writing in Slate has a fascinating look at this film, which the Pentagon is apparently screening these days.


Loser lawsuit of the day: Fortunately, it's just a proposed lawsuit; here's how the Riverside Press-Enterprise describes it:
Mayor Pro Tem Frank Schiavone last week asked the city attorney to look into legal options against [Fox] over its series "The O.C." The City Council is scheduled to discuss the matter behind closed doors on Sept. 2. . . .

The show revolves around a troubled Chino teen taken in by a soft-hearted public defender who lives in Newport Beach. . . .
Part of Riverside's complaint seems to be that "its residents were termed 'white trash'" by the show. "Mayor Ron Loveridge said it would be best for the city to keep quiet rather than stir up a hornet's nest with a lawsuit. 'This is a pre-adolescent soap opera,' he said of 'The O.C.' 'I'm prepared to get on with life.'" No, Mayor, don't say that! How will starving lawyers get to feed their children if potentially litigants just went on with life?

     Of course, if such a lawsuit is filed, it will be a fool's errand, and one that might lose Riverside a bundle in legal fees if it ever does get filed -- under California law, plaintiffs who file unmeritorious libel lawsuits may often be required to pay the defendant's attorney fees as well as their own. Here are two huge legal problems with any such suit:
  1. Libel lawsuits can only be based on false factual assertions, not statements of opinion. A generalization such as "Riverside residents are 'white trash'" is generally treated as a statement of opinion -- and doubly so when the generalization is said by a character in a work of fiction, since viewers realize that not everything said by fictional characters is meant to be taken as a statement of fact: Some characters are intentionally portrayed as bigoted or otherwise unreliable.

  2. Even if the statement is treated as a false factual assertion, under most state libel laws (including, I believe, that of California) it must be "of and concerning" a particular person or small group of people. If the statement defames -- even through an intentional lie -- a large group of people, such as a racial group, religious group, or geographically defined group, it is not legally actionable.


A path to peace in the Middle East? George Liebmann has a provocative idea for making the Middle East a more peaceful place: Offer Palestinians the chance to emigrate to the United States and other Western countries.

The West Bank has about two million Palestinians, Gaza one million. You could allow them staggered entry if need be, but keep in mind that by 1986 we were absorbing over three million (gross) illegal Mexican migrants per year. Maybe it is cheaper to swallow more Palestinian migrants than to be stuck in the Israeli-Palestinian quagmire. Of course not all Palestinians would move (should we pay them a settlement bonus?), but anything to relieve the demographic pressures will make it easier for the Israelis to make peace.

It would then be harder for the Arab world to recruit terrorists by charging that America is anti-Palestinian. Yes, a potential influx of terrorists is a real problem but previous Palestinian migrants to this country have proven peaceful and achieved reasonable prosperity. There are 3.3 million Palestinians scattered around the world, and the wealthy countries of the world do not find this to be a huge problem, rather they are a net benefit.

And since the Western Europeans tend to be so pro-Palestinian, surely they would not mind taking in their fair share or perhaps the whole lot.


War and death: Phil Carter has what seems to me to be a great post on the dangers of using casualty counts as a metric of military success. Highly recommended.


More on the Written Constitution: A couple days ago, I posted on the value of a written constitution here. One e-mail correspondent criticized my claim that: "The Constitution is not the law that binds us, but a law to bind lawmakers and keep them within proper bounds." He points to the 13th Amendment as an example of a provision that binds citizens as well as the state. Fair enough. When I express this point in my scholarly writings, I always qualify it by saying "with a few exceptions . . . ." Still, the fact that these are exceptions--and these exceptions must be made explicit--supports rather than undermines my basic point. I do not claim that a constitution, for some reason, CANNOT ever bind individuals. My point is that the main reason we put constitutions in writing is to limit the powers of bind law-makers, rather than citizens.

Limiting the power of lawmakers either is or is not a desireable goal. Most everyone besides committed totalitarians believe such limits are appropriate and they differ mainly on what the limits should be. And putting these limits in writing either is or is not an effective means of achieving this goal. My point is that, written constraints are only an effective means if the persons being constrained cannot change them on their own.

This leads to the proposition that the meaning of the writing must remain the same until it is properly changed--and it is improper for the actors being bound--judges, legislatures, executive officials--to change them on their own and even in collaboration with each other. This proposition is functionally equivalent to original meaning originalism, which is based not on the authority of our or, in my case, other peoples' dead ancestors, or of a supermajority, but on the value of preserving this structure constraint on power.

On Strange Doctrines, attorney Michael Drake responds:

I think Barnett's remarks here succeed as an argument for accepting a constitution as binding over time, but fail as an argument for originalism.

The reason, again, is this dichotomy between (1) retaining original meanings and (2) changing those meanings "as one will." The dichotomy is attractive, but false. It simply is not the case that if we jettison original meanings we thereby jettison principled meanings entirely. We are still constrained by some meanings embodied in key constitutional terms like "persons," "privileges and immunities," "equal protection," and so forth--just not the original meanings.

For instance, the term 'person' as a constitutional term originally meant (roughly) 'male white property owner.' Now it means (roughly) 'citizen of the United States.' Perhaps someday it will come to mean something as expansive as 'all sentient beings that have such-and-such cognitive abilities.' But whatever the contemporary meaning of a given constitutional term might be, it will always be semantically constrained, despite being nonoriginal. (It should be enough toward a proof of this last contention to consider that original meaning is nothing but the "contemporary" meaning of the founding era. If the contemporary meanings of the founding era were sufficiently specified, then so too are the contemporary meanings of our era.)
Because this is both a reasonable and very common academic response to the originalist position I am taking, it merits a serious reply. Mr. Drake is right to observe that, if the original meaning of words is truly ascertainable, then surely also ascertainable is the contemporary meanings today. (What is usually overlooked is the reverse: that contemporary meanings are ascertainable today is an argument that originalism is not impractical, as some charge, because they are ascertainable for the past as well. But this is not Mr. Drake's point.) In this sense contemporary meanings are not completely open ended and can constrain lawmakers. This observation requires two general responses.

First, most of the changes to the original meaning of the Constitution to which originalists object have NOT come about by the evolution of the English language. They have come about by systematically ignoring the original clauses altogether. So, for example, courts have excised the 9th Amendment and the Privileges and Immunities Clause of the 14th Amendment. The Privileges or Immunities Clause got "reinterpreted" into nothingness in The Slaughter-House Cases (read the dissents), decided 5 years after its enactment. The English language had not evolved. The 14th Amendment was redacted. The same is true with the Commerce Clause and the Necessary and Proper Clause. The latter clause was misinterpreted by Chief Justice Marshall some 30 years after ratification. (For detailed analysis of its original meaning click here.) The meaning of "commerce" in the Commerce Clause was unchanged up to the 1940's and even then was never officially abandoned. (For the original meaning of the Commerce Clause click here and here.) What happened was the Necessary and Proper Clause got expanded to reach beyond "commerce . . . among the several states." This was not because the contemporary meaning of either "necessary" or "proper" had fortuitously changed in such a way as to justify New Deal legislation. These examples are immune from Mr. Drake's objection. When judges are doing this, they are acting objectionably even under his approach.

Second, his reply requires us to ask (a) how common are such changes in the meaning of language and (b) why the fortuity of a changed meaning of language between then and now should affect the meaning of the Constitution? I think the changes are very uncommon. The example he cites is the meaning of the word "person." In fact, antebellum radical defenses of slavery notwithstanding, the word "person" meant much the same then as it does today. What the founders thought of the status of women is complex, but no one then would have denied that women were "persons" in the relevant sense or even "citizens."

Even slaves were thought to be "persons." My proof? All three of the enigmatic passages that are taken to be references to slaves. The first is in Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several State, which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
The second passage is also in Article 1, but in Section 9:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding teti dollars for each Person.
The third passage is in Article IV, section 2:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
What Mr. Drake probably has in mind is the interpretation of the word "person" by Justice Taney in Dred Scot in which he limits the word to free white men. But Taney's interpretation is based on the original intentions of the founders (which I and Lysander Spooner deny are binding on us), not the original meaning of the word "person" which demonstrably referred to women as well as to those held in bondage. Ironically, Taney's opinion in Dred Scot is indistinguishable from the original intention interpretation of radical abolitionist Wendell Phillips that was vigorously rejected by original meaning originalist radical abolitionist Lysander Spooner. (I examine their debate here.)

A better example of Mr. Drake's point would be to point to something like "due process" or "cruel and unusual" and argue that these meanings have changed. But I would respond that, when the founders chose to express themselves abstractly (or at a high level of generality), then we are only bound by the level of generality of the words that were enacted. This is one of the main virtues of the Constitution that accounts for why it has lasted as long as it has. Had they been very specific (e.g. racks, thumbscrews, brandings), much of what they wrote would now be as irrelevent as the congressional power to issue letters of Marque and Reprisal--or would be easy for government to circumvent.

These abstract passages require contemporary constitutional construction to put them into effect and these constructions can and should evolve with changing circumstances. What is a "reasonable" search may be different today than it once was. In this sense, constitutional law properly evolves while the meaning of the Constitution itself stays (or should stay) unchanged. Constitutional construction is needed to put flesh on the bones provided by the original meaning of the text. What is improper is constitutional law that ignores or contradicts original meaning.

Finally, assuming the meaning of some language in the Constitution did change over time, why would that fortuity be a good reason to change the meaning of the Constitution. So, originally "marines" were fighters attached to the Navy. Today we use the word "Navy" exclusively of the Marines. Why should this happenstance change in meaning have any constitutional significance? I realize this particular example does not matter much, but better examples are hard to think of so constant has been the Constitution's meaning. (Do not bother to write me about the "Air Force." Consider it an assignment.)

(Perhaps an example that does matter would be those who today want to stretch the word "person" in the 14th Amendment, which originally referred to someone who was born, to the unborn. I am not saying that grey areas of personhood do not exist under the original meaning--perhaps extending the concept to viable fetuses immediately before birth. Such is the case with ALL conceptual distinctions. I am saying only that the original meaning of the word "person" did not apply to unborn zygotes. Here, as elsewhere, I think the meaning of "person" should remain the same until it is properly changed because, on balance, I value the structural constraints on power provided by a written constitution.)

In the end, I submit that what nonoriginalists really want is not to follow the happenstance of changed meanings but to ignore or deviate from the original meaning because they disagree with it. There is nothing to prevent nonoriginalists from candidly rejecting the text of the Constitution as morally deficient, but I submit they should not then claim this same deficient document as their authority. That only confuses things. All I am asking for is the same candor from them as was offered by Garrisonian abolitionists when they condemned the Constitution as "a covenant with death and agreement with hell." By the same token, until the Constitution is repealed, those who approve of what it says are entitled to ask that its original meaning be restored. In addition to their claim that this would be preferable substantively, restoring the original meaning would also restore the value of putting constitutional limits and guarantees in writing.


Reconstructing Iraqi media Columbia Journalism Review has a very good piece on rebuilding the Iraqi media. As you would expect, the Iraqis themselves have mixed feelings about the idea of freedom of speech. And the current outlets remain obsessed with stories about the old Saddam Hussein regime. A key point in the article: right now Iraqi media are blossoming, but most of it will end quickly unless advertising revenue can be generated. The U.S. authorities are drawing up a code of permissible conduct (no hate speech, for instance), but no one knows exactly what the code will say.


Google search: Just noticed that someone found our site using the google search
"lord of the rings" anti-arab
     Sounds like there's an interesting literary theory circulating somewhere out there. I suspect, though, that the searcher found little to support it on this site.


Cynthia McKinney at Cornell: Former Rep. Cynthia McKinney (remember her?) has been hired as a visiting professor at Cornell:
McKinney . . . is likely to visit for two or three weeks at a time to give public lectures and seminars and to attend classes. . . .

[Porus Olpadwala, dean of the College of Architecture, Art and Planning] . . . [said] that "she's not going to 'teach,'" focusing more on seminars and public speeches as well as visiting classes. . . .
Also announced for the same sort of professorship, in the same announcement: Journalist John Pilger.

     Incidentally, here's an odd tidbit from the Cornell Daily Sun story (emphasis added):
McKinney is a controversial figure. . . .

In March 2002, McKinney said that the administration of President George W. Bush should have known about the Sept. 11 attacks and asked two questions in the liberal magazine Counterpunch that attracted most of the media firestorm surrounding her: "What did this Administration know, and when did it know it about the events of September 11? Who else knew and why did they not warn the innocent people of New York who were needlessly murdered?"

McKinney also wrote that "persons close to this administration are poised to make huge profits off America's new war."

While he did not challenge the truthfulness of those statements, Chris Suellentrop, writing in the online magazine Slate, called her paranoid and labeled her "the Girl Who Cried Racism." Further negative reaction to McKinney has included portraits of her as variously paranoid, villainous and unpatriotic. . . .
Check out the Slate story for yourself and see whether this is accurate. As best I can tell,
  1. Suellentrop called the first statement a "fantasy," an "outlandish accusation," and a "wild conspiracy theory" -- sounds like a "challenge [to] the truthfulness of [the] statement[]," no? Perhaps the reporter meant that Suellentrop didn't try to disprove McKinney's statement. But that's not what the reporter said, and, besides, how can one disprove a statement like McKinney's, except to assert that it has no factual foundation, which Suellentrop did, and to point out that even McKinney herself doesn't seem to be able to provide any factual foundation, which Suellentrop also did ("McKinney, weeks after her statement, would say only, 'A complete investigation might reveal' that 'President Bush or members of his administration have personally profited from the attacks of 9-11.'").

  2. Suellentrop never mentioned the second statement ("persons close to this administration are poised to make huge profits off America's new war"). Perhaps the Daily Sun writer is confusing it with the "might reveal . . . [that] President Bush or members of his administration personally profited from the attacks of 9-11" statement -- but the two were different statements, made in different contexts.

  3. Even beyond the error mentioned above, "While he did not challenge the truthfulness of those statements, Chris Suellentrop, writing in the online magazine Slate, called her paranoid and labeled her 'the Girl Who Cried Racism'" strikes me as a rather unsound description of the Suellentrop piece. Unless I'm mistaken, the implication of the line is that Suellentrop primarily focused on those two statements, and without much of a factual argument concluded that she was paranoid and in particular given to false accusations of racism -- which would have been a pretty bad argument, given that those two statements didn't even have anything to do with racism.

         In fact, however, Suellentrop's piece begins with the 9/11 statement, but then goes on to give several specific examples of McKinney's accusations of racism, and specific explanations of why he thinks those accusations are unfounded. Perhaps I'm mistaken, but the Daily Sun line paints quite a different (and incorrect) picture of Suellentrop's column.
If any of you get a chance to ask the Daily Sun for a response to this, please let me know what they say.


The Economics of Reconstruction A recent Rand Corporation book argues that dedication, effort, and follow through are the critical values in determining the success of a postwar reconstruction. Five years is the minimum time requirement. Yesterday Bremer told us that we must spend tens of billions more. Thomas Friedman has referred to it as a "building" effort, not a "rebuilding." In many ways we are starting from scratch. Today's New York Times (registration required) tells not only of multi-hundred-billion dollar deficits ($475 billion and possibly rising over time), but states the following shocker: "...the administration, for its part, has yet to budget anything for war-related costs in 2004 and thereafter..."

Tuesday, August 26, 2003


Memorial T-shirts: Slate has a piece on this seeming new trend, which I had missed until then. Interesting.


Is Greenspan just lucky? This interesting link considers the hypothesis that Alan Greenspan has gotten very lucky during his term. He has been able to goose up the money supply without suffering serious price inflation, due to various underlying deflationary trends. The first graph of the piece also shows the comparative inflation records of different Fed chairmmen since WWII. Volcker provided the biggest improvement over his predecessor. Greenspan's average is 3.05 percent, second best after William Martin's 2.05 percent. The author, economist Paul Kasriel, also thinks our lucky streak is about to end. Worth reading, even if you usually wouldn't click on a macro link.


Away from blogging: I leave for APSA first thing in the morning, so no blogging-- or, likely, e-mail responses-- until Monday or Tuesday.


Exemptions for religious observers: This story about a public school dress code raises the perennial constitutional question: May the government exempt religious observers from a generally applicable rule (here, a dress code, though it could equally be military conscription, a high school biology vivisection requirement, or a variety of other rules) but not extend the same exemption to conscientious nonreligious observers? If you're interested in this general question, you might check out this summary in an article of mine -- I don't take a stand on the subject, but I outline the issues. (As a policy matter, I think that secular conscientious objectors should generally be treated the same as religious objectors, but it's not clear to me whether, and to what extent, the Establishment Clause requires this.)

     Note, though, that the dress code case also includes a different twist: Not all religious objectors are entitled to an exemption, but only those who can get a note from their religious leader. This, I'm pretty sure, is unconstitutional, because it privileges those religions that have organized clergy over those that don't, and those people whose religious beliefs match their leader's and those whose beliefs are more idiosyncratic. The Supreme Court held, in Thomas v. Employment Division (1981), that constitutionally mandated religious accommodations (when the Free Exercise Clause was interpreted as mandating such accommodations) turn on a person's own sincere beliefs; and I think the same principle would apply to religious accommodations that the government voluntarily creates.

     Thanks to Michael Lopez for the pointer.


Born in 1985: Beloit College's annual "this is how young this year's freshmen are" zeitgeist list is out. Seems to me that some of the past years' entries have been funnier, but as always there are soem oddly disturbing things to realize on it. The items that succeded in taking me aback:

18.They don't [...] know about the "Help me, I've fallen and I can't get up!" commercial.
22. Jay Leno has always been on "The Tonight Show."

Most of the rest have been true for a number of years, and some of the entries are now getting recycled, which is either a sign that the joke is aging or a sign that someone new needs to take over. ("They have no meaningful recollection of the Reagan era, and did not know he had ever been shot" was on the Class of '02 list five years ago. This year's freshmen likely have no meaningful memory fo the first Gulf War, ten years after the Reagan shooting.) But Carson's retirement and "I've fallen!" were college-era events for me; the early 90s still seems very recent, almost current, to me.


The e-mail viruses: I've been getting hundreds of virus-generated messages a day -- I don't think my computer is infected, but infected computers are sending stuff to me -- which is extremely annoying, especially on a slow connection. Fortunately, though, they at least seem to have gotten a bit smaller in the last few days, and are thus less likely to overflow my mailbox; the old junk message used to be in the 71-78 kilobyte range, but the new ones are now all under 1 kilobyte. Thank heavens for small blessings, I suppose.


Hindus, homosexuality, and blogging: This post has, as I expected, brought an avalanche of e-mail, including some pretty sophisticated arguments. I've responded briefly to one of them (Ten Commandments vs. the Noachide Laws), but I'm not sure that I'll be able to respond to many more: Just too swamped with packing for the move to Harvard for the Fall Semester, traveling to a wedding shortly, and, believe it or not, actually writing a real law review article (plus I'm working from home today, and the connection is pretty slow). So I hope to have a few more posts on this, and maybe some personal responses to some people's e-mail -- but, I'm sorry to say, probably far fewer than I would have preferred to had I been less busy.

     This also highlights, I think, one unfortunate limitation of blogging. If I were doing serious scholarship on this subject, I would feel obligated to respond to all serious counterarguments in my original draft; and if I sent out a prepublication version and someone raised a new serious counterargument, I would feel obligated to incorporate a response into my piece. That would be just part of the scholarly duties of the job that I'm paid to do.

     Unfortunately, when one is blogging as a side project, real work and real life are more likely to get in the way; one can therefore spend only so much time both composing the original post and following up on it. On top of that, many posts tend to get more responses than many law review articles -- which is good, but which further limits the amount of time one can spend on each one. So while I feel bad dropping the argument in the middle, and while I can understand that respondents might feel understandably annoyed when no reaction to their detailed counterarguments are forthcoming, I'm afraid that such abandonment is often inevitable, sad to say.

UPDATE: Clayton Cramer quotes this post, and says (jocularly, of course), "For those of you who saw Monty Python and the Holy Grail, the temptation is strong to yell, 'Come back and fight like a man!'" Well, I did see the movie, and remember it pretty well. But it seems to me that King Arthur had the better of that debate: Sometimes, a knight has to know when to move on to other battles, rather than hacking away at the same thing over and over again.


APSA blogging, international relations department More papers from the upcoming Annual Meeting of the American Political Science Association that I think look interesting, important, provocative, or like good exemplars of cutting edge research. Today, since Dan Drezner hasn't done it: papers on international political economy, international relations, security, foreign policy, etc.

McNamara, Kathleen. "The Diffusion of Central Bank Independence"
Abstract: This paper explores the causes of the explosive spread of central bank independence beginning in the early 1990s. What caused a relatively heterogeneous group of states to increase the legal independence of their national central banks over such a short period of time? The conventional wisdom might argue that delegation to an independent central bank (ICB) results from particular domestic conditions and decisions. Independence helps dampen inflationary expectations, according to the theory of central bank independence, and therefore makes sense for states facing high inflation rates, or needing to attract foreign investors, or wanting to lock in conservative monetary policies in situations of political uncertainty. We present some rough, preliminary statistical tests of a variety of such conventional explanations, yet find relatively little evidence that these domestic motivating factors were the driving cause . No particular economic indicator appears to have strong effect on the decision to move to independence. In particular, we found that the effects of recent inflation rates on the decision to move towards independence are minimal, if any. But neither can conventional political explanations account for this policy choice. We propose an alternative sociological explanation that stresses the important symbolic motivations for central bank independence.

Simmons, Beth., Garrett, Geoffrey. and Dobbin, Frank. "The International Diffusion of Democracy and Markets"
Abstract: One of the most significant developments of the second half of the twentieth century has been the spread of liberal economic and political ideas, institutions, and policies across a large part of the globe. This paper documents some aspects of this trend, and proposes policy diffusion as a set of mechanisms that explain the clustering in time and space of liberal policies. Diffusion is defined as any dynamic process whereby the policies chosen in one country affects the probability they will be chosen in another. We distinguish this definition of diffusion from the null hypothesis of independent decision-making, for example, in response to a commonly experienced external shock. We further distinguish diffusion from strategic behavior generally, and argue for a broader approach that includes the possibility of sociologically driven behavior. We explore five mechanisms that could drive diffusion processes: hegemonic influence, competition, network externalities, rational learning and social emulation. In discussing each, suggestions are made for testing the various mechanisms.

Andres, Richard. "Regime Change and War Outcome: Only Shoot the Tyrants"
Abstract: Over the last few years, technological improvements in precision guided munitions and electronic surveillance have made it increasingly easy to strike enemy leaders. However, little is known about how losing a leader affects a state’s ability to fight. In this paper I examine the effects of regime change on the chances that states win or lose wars. I argue that, while most states’ war efforts should not suffer much from changing regimes, states with political institutions that encourage high-loyalty to the leader, specifically those with large selectorates and small ruling coalitions, should suffer a great deal from losing their leader. I test these hypotheses against a large sample of war outcomes. The results of the test confirm the hypotheses; while regime change does not affect the chances that most states will win or lose wars, high-loyalty states that undergo a regime change during a war are less than half as likely to win as those that do not.

Bunce, Valerie. "Cooperation, Compromise, or Conflict: Three Models of Center-Regional Bargaining in Ethnofederal States"
This paper compares bargaining between the center and minority regions since 1991 in four postcommunist ethnofederal states: Azerbaijan, Georgia, Russia and Serbia-Montenegro. Two factors emerge as critical in explaining whether minority leaders accept the status quo, demand significant autonomy, or try to leave the state. The first is whether minorities have access to weaponry, and the second, which has considerable explanatory power, is the outcome of struggles for political power within the region. Where the communists maintain power, minority leaders request at most limited change, and center-periphery relations are peaceful. Where the communists win over a strong nationalist opposition, the result is compromise. Here, minority leaders demand and win significant economic, political and cultural autonomy, and the region remains within the state. Finally, where the nationalists defeat the communists, minority leaders try to secede from the state, and the center uses violence to stop them. If cooperation describes the first dynamic and compromise the second, the third is conflict.

McGarry, John. and O’Leary, Brendan. "Federation, Conflict-Regulation and National and Ethnic Power-Sharing"
Abstract: This paper attempts to demonstrate that although multi-national federations may have a poor track-record, the standard explanations of their difficulties, especially those advanced in much recent US political science, are not compelling. The conditions which facilitate but do not guarantee successful democratic multi-national federations are (i) the presence of a Staatsvolk; (ii) consociational governance at the center of the federation; (iii) authentic democratic institutions; (iv) ‘voluntary’ or ‘holding together origins; & (v) prosperity. Policy recommendations on federal design outside the USA that are based on US mono-national federalism are profoundly inappropriate.


Halfbreeds: Last week I posted about the Aniak (Alaska) High School Halfbreeds. Reader A.W. decided to dig further, and he got the following from Marge Randlett, a teacher at the school (I reproduce it with her permission):

Well, what can I say. We are indeed the Home of the Mighty Halfbreeds. And most of our student body, it seems, is part Native Alaskan and part Caucasian.

The story is simply that the seniors got to choose the school mascot some years ago. There were about 7 or 8 seniors, and most were... halfbreeds... and that thought it would be cool.

It has cost us some newspaper coverage from time to time -- the Anchorage P.C. reporters didn't get it, I guess.

In any case, it is a source of pride to our students and community, and just goes to show how the denotation of a word is only half the story...
It's cool how much interesting background you can get if you just e-mail the right person.


Quotes, context, and spin: Robert Tagorda reports on Arnold Schwarzenegger's Interview with Hugh Hewitt, and how it has been covered:
The San Francisco Chronicle report on this subject begins thusly:
GOP gubernatorial candidate Arnold Schwarzenegger told a conservative talk radio host Monday that he would be "going to Sacramento as an independent," a statement certain to enrage Republican loyalists who have been reluctant to endorse a moderate. [Emphasis added.]
. . . But, as my brief transcript of the interview shows, Schwarzenegger used the word "independent" in an entirely different context (if you want to hear the pertinent exchange for yourself, as I would recommend, click here and scroll to the ninth minute):
Hugh Hewitt: Now, Gray Davis gave sweetheart deals to the prison guards, and he gave millions and millions of unnecessary contracts by purchasing software to Oracle. Those are just two of many sweetheart deals he gave to his buddies. Cruz Bustamante has this relationship with the Indian tribes. How do you clean up -- that's a swamp in Sacramento. Why do you even want to try to clean it up? And can you?

Schwarzenegger: Well, I think that it is such a great opportunity. The state needs to have this mess cleaned up. You have to understand that I am a person that appreciates so much of all the stuff, all the opportunities that I've been given in California. I love this state. And I'm, like I said to my wife, I'm more than happy to give up my movies and the monies and the millions of dollars that I could make instead, and all this and that -- the best life anyone can dream of. I want to clean up this mess because I am going up there to Sacramento as an independent. I go up there -- I'm not indebted to anyone. So therefore, I can go and correct those things because I don't accept campaign contributions from those different special interests that Gray Davis or Bustamante is accepting money from.
From this excerpt, several things are clear: . . . By "independent" Schwarzenegger meant "free from special interests." . . .

Perhaps the most appalling aspect of this entire fiasco is that Schwarzenegger's campaign tried to correct the report, but Chronicle writers Carla Marinucci and John Wildermuth dismissed the correction as a form of damage control:
The actor's campaign staff immediately scrambled to put a different spin on the potentially controversial comments. [Emphasis added.]

"He means he's not beholden to anyone. He didn't mean he won't go up (to Sacramento) as a Republican," said Sean Walsh, a spokesman for the actor. "He'll be independent of special interests. They can't own him."
Schwarzenegger may be more moderate than many of his fellow Republicans would like, but this issue has nothing to do with his purported independence from special interests as described in the interview. One wonders why the Chronicle would publish the kind of report that it did.
Tagorda also makes some other good points -- read the whole post. I haven't checked the audio myself (I'm at home and the connection is too slow), but I have no reason to doubt the accuracy of the transcript.

     I think this sort of remark by Schwarzenegger might be likely to be interpreted as at least coyly hinting to some that he really isn't a mainstream Republican, especially given some of the other things he's said and done. But in any event, there's no justification for the Chronicle quoting the line out of context this way, and with labeling the campaign's explanation -- which the most plausible explanation of the text (whatever you might think of the subtext) given the entire transcript -- as "spin."

     And this, incidentally, highlights the danger of the term "spin" -- when there are two possible interpretations for a statement or an event, it's often far from clear which is the "unspun" explanation and which is the "spin." In fact, sometimes labeling something "spin" is itself a form of spin.


Scaramouche: My post praising Scaramouche by Rafael Sabatini omitted the reason I picked up the book in the first place -- it has one of the coolest opening lines in all of literature (naturally, the exact words vary from translation to translation):
He was born with the gift of laughter and a sense that the world was mad; and this was his only inheritance.
Actually, come to think of it, the rest of the book doesn't quite fit the opening as perfectly as I'd like -- but it's still a very good book, and a great line.


All-time records: Check out this Washington Post story, which has the headline "Gasoline Prices Soar to Highest Point Yet." The second paragraph echoes the headline: "The nationwide average retail price of regular-grade gasoline shot up to $1.75 a gallon yesterday, its highest level ever."

     Only the last paragraph puts things in perspective: "And if it's any comfort, current record prices are not so high in inflation-adjusted terms. For example, a gallon of gasoline was $1.25 in 1980, or the equivalent of $2.79 today." A pretty important qualification, and one that makes the claims in the headline and in the second paragraph essentially pointless. But, hey, talking about records and extremes sells -- perspective, unfortunately, doesn't.


Hindus, homosexuals, Moses, and Noah: A couple of people responded to my Hindus / homosexuals post below by arguing that the Bible imposes the Ten Commandments only on Jews, and that non-Jews are bound only by the Seven Noachide Laws. Thus, the argument goes, it makes sense for conservative Christians to tolerate Hinduism but not homosexuality, because the latter is covered by the Noachide law prohibiting sexual immorality, while the former is not (since the Sabbath commandment and the no graven images commandment are not in the Noachide laws).

     I'm not sure I quite see how that works, though. First, while as I understand it this is the orthodox Jewish teaching, it is not in practice modern conservative Christian teaching. My sense is that the overwhelming majority of conservative Christians believe the Ten Commandments are generally binding, and not just on Jews -- which is why there are so many moves to place the Ten Commandments in public places, and extol them as fonts of American law.

     But second, the Noachide Laws include a prohibition on worshiping false Gods. Shifting from the Ten Commandments to the Noachide Laws thus does nothing to undermine the analogy I was drawing.


Upcoming Spring Book Tour: I have been deferring invitations to speak at Federalist Society chapters until the Spring when my book, Restoring the Lost Constitution: The Presumption of Liberty has been published and I am on leave. I intend to organize them as a book tour. So far I have heard from chapters at Boalt, Cornell, Emory, Georgia State, Houston, Minnesota, Stanford, and Washington.

If your law school Federalist Society or American Constitution Society chapter would like to host a speech (and invite a critical faculty commentator), I would be delighted to visit. I plan to set dates at the end of September when I know the destinations. So let me know by e-mail before then if you are interested.


Lck f vwls n hbrw: Like some other languages, Hebrew is traditionally written without vowels. Not that symbols signifying vowels don't exist; they were invented some time ago. But newspapers, books, signs, and basically everything else in Israel is written without vowels. As a non-native Hebrew speaker with reasonable spoken Hebrew abilities (courtesy of Jewish day schools) and the ability to read Hebrew, I find that the lack of vowels in written Hebrew seriously impedes my comprehension, especially because so often when I am trying to make out a "Hebrew" word it turns out to be a transliteration from English. In the days when printing was very expensive, I could understand why vowels would be left out. But nowadays, there seems no excuse. I don't know precisely what percentage of Israelis are not native Hebrew speakers, but it must be huge. Well over a million Israelis were born in the former Soviet Union. Hundreds of thousands of other immigrants have arrived before and after Israel's founding in 1948. Most of the million or so Israeli Arabs speak Arabic as their first language. All of their lives would be made easier if Hebrew was printed with vowels. But when I tell Israelis this, they look at me like I am crazy.


Andrei Shleifer writing on courts, criticizing procedural formalism Andrei Shleifer would be another good pick for the economics Nobel Prize. Last night I read his (co-authored) paper on courts and the practice of justice, from the May 2003 Quarterly Journal of Economics.

He and his coauthors assembled a remarkable database from 109 countries, based on how those countries deal with eviction of a residential tenant for non-payment of rent and the collection of a check returned for non-payment. The conclusions:

"...[legal] formalism is systematically greater in civil than in common law countries. Moreover, procedural formalism is associated with higher expected duration of judicial proceedings, more corruption, less consistency, less honesty, less fairness in judicial decisions, and inferior access to transplantation may have led to an inefficient high level of procedural formalism, particularly in developing countries."

Procedural legal formalism is defined in terms of using professional rather than lay judges and lawyers, the need to make arguments in written form, the necessities for legal justifications at various steps along the way, the regulation of evidence, and a number of other factors.

We learn again that the reality of the "rule of law" may be very different from the theory. Not surprisingly, former French colonies are among the biggest offenders.

Monday, August 25, 2003


The Value of a Written Constitution: An interesting brief debate has broken out between Will Baude of Crescat Sententia and PG of All The Sins of Mankind over whether we should enforce the Constitution as written. PG writes:

But that's all the Constitution is, really -- an expression of the super-majorities, who decide that their feelings on a particular matter are so important that they must be enshrined in the Constitution.
These super-majorities have been known to change their minds, most infamously in the flipflop over Prohibition.

It's hard to say why the preferences of an ancient super-majority ought to be able to supersede the desires of a more marginal contemporary majority.
For example, if Congress of 2003 has enough votes to pass a flag-burning ban, why should they be overruled by the super-majority of 1791 that passed the First Amendment, without even saying whether they included flag-burning in the protected freedom of speech or not?
Will responds:

The formalist justification for judicial review is that a judge's job is to interpret law texts, and when these law texts conflict with one another, the judge must figure out which one is overruled by the other. Thus, if the Constitution is a normal text (albeit a vague one) it makes sense to have the judiciary trying to figure out precisely what it says. But I'm not at all sure what the justification would be for having five guys in robes strike down laws simply because they were "bad". That's not in their charter.
Paradoxically BOTH are on to something. PG because she titles her blog entry "The Constitution -- Why Bother?" and Will because he responds in terms of the relevance of a written constitution to the legitimacy of judicial review.

But both miss something as well. A written constitution may have come to exist due to the supermajority (of some relevant group of voters), but that is not why judges should enforce it as written (if indeed they should). A written constitution is a structural device, like separation of powers, federalism, and even majority voting itself, that either contributes or does not contribute to constitutional legitimacy. By "constitutional legitimacy" I mean the likelihood that laws enacted and enforced by constitutional means are likely to be just and to bind in conscience. Larry Solum summarizes the issue neatly here. My article on Constitutional Legitimacy (which was later published in the Columbia Law Review) is here.)

The Constitution is not the law that binds us, but a law to bind lawmakers and keep them within proper bounds. If these same lawmakers, or judges, are free to changed its meaning as they will, then it will cease to do its job. We therefore stick with a written constitution until it is properly changed in writing, not because the dead have any authority over us, or because a supermajority have authority over the minority, but because the "lock-in" provided by a written constitution is an essential. or at least a vital, means of imposing a law on the lawmakers. We should follow it because we the living, right here, right now, are committed to a written constitution. (I explain this at greater length in my article An Originalism for Nonoriginalists, though I will expand upon this treatment in Restoring the Lost Constitution.)

But what if the Constitution is unjust, as it was with respect to slavery (though significantly it never stooped to mention that evil practice by name)? If a constitution is not "good enough" to provide adequate assurances that laws are just then it should be ignored. But what is not appropriate is to ignore it, then claim IT as your authority--as in, don't follow my ruling because *I* think it is just--follow it because THE CONSTITUTION requires it! This is deceptive if what one is really doing is ignoring the Constitution because it is deemed by a judge or set of justices to be inadequate--who are unwilling to reject its authority forthrightly (as did, for example Lysander Spooner). To be clear I do NOT think PG was contending otherwise, which is why I said she was on to something.

In other words the merits of a particular written constitution is one thing. The practice of adhering to a written constitution (that is good enough) is another. Most critics of originalism want to have their Constitution and eat it too. Rather than forthrightly rejecting it as inadequate--as the Garrisonian abolitionists did when they called the Constitution "a convenant with death and an agreement with hell!--they want to preserve its form to get others to obey them.

There is much more to be said about these imporant issues, but really I post mainly to emphasize two limited points:

The original meaning of a written constitution should not be enforced because living or dead supermajorities have any authority over us. Rather, it should be enforced (1) because binding lawmakers by written limits is a very good thing, and (2) because the limits in our particular written Constitution are appropriate. Reasonable people may reject either of these tenets, but should be forthright about doing so and should do so for the right rather than for ultimately irrelevant reasons.


O'Reilly Factor: I should be on the O'Reilly Factor this evening to discuss the Roy Moore / Ten Commandments case.

UPDATE: Rats! The guest host said exactly what I wanted to say -- which is that whether or not the U.S. Supreme Court is right in their interpretation of the Establishment Clause, a Justice of the Alabama Supreme Court should follow that interpretation (and also the orders of lower federal courts that follow that interpretation) -- so I just ended up more or less echoing his points. No fun, but, hey, at least the guest host (John, I forget the last name) had the right view on this. And, yes, I realize that there are some potentially complex legal questions related to the extent to which the decisions of lower federal courts should bind state judges, but here Chief Justice Moore was pretty clearly fighting established U.S. Supreme Court precedent. Maybe sometimes such fights should be waged -- but I don't think it's the place of judges to engage in this sort of disobedience.


Terrorism and incentives An article from today's calls for airlines to "have to bear the costs of any future terrorist attack in their flights." The conclusion is that "tight security [would become] non-negotiable."

This approach strikes me as wrong-headed. Yes you can buy terrorism insurance, but these markets seem to work imperfectly, for reasons I do not understand very well (dormant blogger Michelle should chime in here, she has written on this). The net result might simply put the airlines out of business. Some of the events are unique, hard to appraise, and the final social costs can be very very high. Instead of safety I suspect we would end up with nationalized airlines.

So can we think of a better incentives scheme for safety? How about rewarding Israeli bus companies, or American airlines, if they don't have a terrorist explosion? Does that cost too much? How about a tournament of sorts, the companies pool some money, ex post the safer companies keep monetary prizes?

I can think of objections to all these schemes, but is the optimum really no monetary penalty or reward for the companies at all, other than changes in their reputation with consumers? Regular liability law doesn't work this way, nor should it.

If you have any good ideas, write me.


Should people feel free to deface others' speech? Philosophy professor Crispin Sartwell says yes, in an L.A. times op-ed:
If advertisers feel free to monopolize public space -- from highways to the airwaves to the Internet -- with their commercial messages, we ought to feel free to deface these messages, critique them and replace them with our own.
I'm sure he'd be delighted if someone hacked into the L.A. Times Web site and defaced his column, critiqued it, and replaced it with his own, or for that matter defaced the ads or signs put out by his favorite public interest organizations. (And if he says that he himself isn't "monopolizing" public space, well then of course the same can be said about any particular advertiser. His argument is that public space is being "monopolized" by advertisers as a collective, and each individual speaker there should be subject to defacement for the "monopolization" performed by all of them; well, I say, the same should go for newspaper op-ed writers.) In any case, Amy Alkon, the Advice Goddess, somehow manages to critique his work without defacing it. Check out her response.


Hindus: Say that a few Hindus are hired as teachers in a public school district; and that some people start to complain. Hindus, they point out, routinely and unabashedly violate three of the Ten Commandments (they worship other Gods, they create images of their Gods, and they don't observe the Sabbath). What's more, the Hindus would therefore be bad role models for children: Some kids, seeing the teachers' example, might be drawn towards Hinduism; and other kids, seeing some nearby authority figures who aren't Christian, might have their belief in Christianity undermined -- and of course the results of that would be truly dire, since they would jeopardize the children's salvation. Therefore, the people argue, the school must refuse to hire Hindu schoolteachers.

     My guess is that such an argument would be pretty broadly condemned, even by many conservatives and Christians (and for that matter conservative Jews and members of other religions; I focus on Christians here simply because their views are especially salient in American public debates). Religious freedom, those people would point out, means (among other things) that we tolerate religious differences, and that we don't discriminate against people in government employment just because of their religious beliefs.

     We may earnestly believe that they're wrong -- whether they're non-Christians, heretics, apostates, agnostics, atheists, or what have you. We may believe that they'll go to Hell for their errors (though we may sincerely regret that). We may want our children not to make these errors. But we ought not legally punish people, or deny them access to jobs and other government benefits, because of their violations of certain religious laws, even some of the laws in the Ten Commandments. (I'm sure that some people don't take such a tolerant view, but I believe that many conservative Christians would quite sincerely endorse it -- I certainly know some such people personally.)

     Of course, this hasn't always been so: Historically, religious discrimination, intolerance, and persecution has been the rule rather than the exception; and even in the U.S., various groups -- Catholics, Jews, atheists, and others -- have in the past faced substantial governmental discrimination, though generally less than in other countries of the time. But today, the general view, again, seemingly shared by a broad range of people, including many devout, conservative Christians, is that toleration is the more just approach. And, in particular, this means that
  1. People's failure to obey religious laws -- even three of the Ten Commandments -- is not by itself reason enough to punish them, or deny them equal access to government benefits.

  2. The risk that others will follow this bad example is also not reason enough to punish the violators of religious laws (here, the Hindus), even if we sincerely believe that following the example will lead to eternal damnation.

  3. Some religious laws, including some of the Ten Commandments, are matters to be enforced not by man but by God.
     So my question, as many of you might well have guessed, is: Why shouldn't devout conservative Christians apply the same principles to homosexuals that many of them would to Hindus? (I'm not asking whether the Constitution should be interepreted as compelling this -- my question here has to do with what's right, not how the Constitution should be interpreted.) It's true that homosexuals are, in the view of many conservative Christians, violating a Biblical command. But so are the Hindus, and yet we tolerate them -- quite rightly, I think. Naturally people who disapprove of homosexuality (or Hinduism) on religious grounds should be free to say so, and to try to persuade others of these views. But if those people have (quite laudably) come to tolerate other religions, even though they think those religions violate Scripture, why shouldn't they equally tolerate homosexuality?

     1. Magnitude of sin. One possible reaction is that homosexuality is an "abomination," and as such a greater sin than the Hindus commit. But can that be right? First, as I understand it, even eating shellfish is condemned as an "abomination" by the Bible; modern Christian practice suggests, therefore, that the label "abomination" isn't terribly significant. Second, the perceived sins of the Hindus would be violation of three of the Ten Commandments -- seemingly pretty important stuff, no?

     2. Conduct v. belief. Another reaction is that homosexuality is conduct, and therefore the proper subject of man's law, while belief is not properly governed by man's law. But Hinduism involves more than just disbelief in the Christian God, and belief in other gods; it also involves the conduct of creating graven images, and breaking the Sabbath. What's more, as I understand it, from a Protestant perspective, belief in God is at least as theologically important as conduct, and perhaps more so. The Ten Commandments, as we see, command belief as well as conduct. If the justification for outlawing homosexuality, or firing homosexual teachers, is simply that it violates God's law, then how does importing the conduct/belief distinction fit with such a justification?

     3. The Constitution. The Constitution, of course, mandates religious freedom, and has been interpreted (correctly, in my view) as barring the government from discriminating based on religion; not so for sexual orientation. But I would hope that many people's attachment to religious freedom is deeper than just "Well, the Constitution requires it, so we have to reluctantly adhere to it." Religious freedom is often described as a broader ethical principle -- a principle that people should be tolerant of those of other religious groups, and should treat them equally (at least in allotting government jobs) even though they disagree with that religion. I would hope that many people would take this view even if somehow they could avoid any constitutional rules that mandate such an approach; I do think many people say that they endorse religious freedom on this ethical level. If so, why shouldn't they equally tolerate those people who violate the sexual rules of Leviticus, rather than three of the Commandments?

     4. Greater secular harm. Now some people might argue that homosexuality causes secular harm to society -- for instance, because it undermines family structure, or spreads sexually transmitted diseases -- and that homosexuals should be punished or discriminated against because of that. One can likewise argue, for instance, that extending marriage to same-sex couples is socially harmful (or at least not socially beneficial). My argument in this post does not respond to this sort of point; I'm speaking here only of arguments that are founded on the Biblical prohibition, rather than on secular harm. But note that the secular harm argument requires its proponents to defend their position in secular, empirical terms, something they might have a hard time doing (especially since the question will be not just whether homosexuality causes secular harm, but whether it causes enough such harm to justify the prohibition of homosexual conduct or discrimination against homosexuals). The claim that "The Bible says its immoral, and that's reason enough for me to support its being outlawed" -- the claim I'm discussing in this post -- would be unavailable here.

     5. The importance of religion in people's lives. Some people might defend people's freedom to be Hindus -- even if, in the observer's view, this violates several Commandments, and might by bad example lead people into damnation -- by stressing that religion is just so important in people's lives. It's just too oppressive, the argument would go, to try to coercively pressure people into changing their views (and actions) related to something that's so important, and unfair to discriminate against them on these grounds. But surely people's loves -- and recall that anti-homosexuality laws and policies apply to serious, longterm romantic commitments as well as to more casual affairs -- are also extremely important in their own lives. (In fact, to some people, a romantic commitment to the person who they think God chose for them is a religious sacrament.)

     So this is all a long way of arguing that the three principles I mentioned above -- principles on which, I think, there's broad agreement even among cultural conservatives -- apply equally to homosexuals:
  1. People's failure to obey religious laws -- even three of the Ten Commandments, or some of the laws in Leviticus -- is not by itself reason enough to punish them, or deny them equal access to government benefits.

  2. The risk that others will follow this bad example is also not reason enough to punish the violators of religious laws (here, the Hindus or the homosexuals), even if we sincerely believe that following the example will lead to eternal damnation.

  3. Some religious laws, including some of the Ten Commandments and some parts of Leviticus, are matters to be enforced not by man but by God.
Again, this doesn't tell us what the constitutional rule should be -- but it does suggest that, as a matter of justice, even those who sincerely believe that Hindus and homosexuals are violating God's law should not see this as sufficient justification to punish them or discriminate against them.

     And this also helps explain, I think, why some people are so troubled by religious arguments in favor of the government punishing and discriminating against homosexuals -- if those arguments are accepted, then this undermines our traditional of religious tolerance as well as preventing the development of sexual orientation tolerance.


Trade secrets and the First Amendment: The California Supreme Court has justed posted its decision in DVD Copy Control Ass'n v. Bunner. I'm about to start reading it.

UPDATE: Just read the decision, and found it quite disappointing. The court's two main errors are, I think, these:
  1. The court failed to inquire whether trade secret law left open ample alternative channels for people to express the same facts, a key part of the test for content-neutral speech restrictions, see Ward v. Rock Against Racism. In fact, trade secret law does not leave open such ample channels, which makes this restriction unconstitutional even if it's content-neutral.

  2. The court asserted that speech is more subject to restriction if it's merely on a matter of "private concern," without explaining (a) why it's proper for courts to decide what speech may or may not be suppressed based on their judgment of what the public should be concerned about, and (b) why this speech, which is of considerable interest to people who are interested in computer programming and in data security (plus, admittedly, to those who simply want to copy works) is merely on a matter of "private concern."

  3. More broadly, the decision raises the prospect that courts could enjoin the publication of a vast range of other trade secrets -- which can include business plans about developing new products, opening or closing new plants, and the like -- so long as the courts decide that this particular piece of information is, in their personal view, not a subject of legitimate public concern.
It turns out that my forthcoming Houston Law Review piece on "Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki" actually discusses all these matters in detail -- see pp. 38-45 here. (For more on the preliminary injunction / prior restraint issue that's highlighted in Justice Moreno's concurrence, see this article by Mark Lemley and me.)


Judaism and anti-semitism: A reader writes, apropos the Protocols:
I would like to have a more substantial understanding of how judaism is good, on its merits, and not based on an aversion to antisemitism.
I'm actually not wild about Judaism on its merits -- I'm ethnically Jewish, but I'm a secular Jew. But anti-Semitism, especially in the 1900s, has primarily been about hatred of Jews as an ethnicity, regardless of their religion. Aversion to anti-Semitism is great to have, even if you think that Judaism is an unsound religion (or even if you think that, especially in some of its strands, it's a harmful religion).


New blogs: People occasionally e-mail me to tell me that they've set up new blogs; they often, quite reasonably, want to be linked to -- nothing wrong with that.

     Unfortunately, just mentioning a new blog isn't, in my experience, a good way to get someone to link to it. It's quite unlikely that the recipient of an "I've set up a new blog" e-mail will start reading the blog routinely. At best, he'll visit just once, but if he finds nothing that he really likes there (quite likely, simply because all of us -- you, I, everyone else -- really like only a small fraction of what we read), he'll just forget all about the site.

     My advice, which I've mentioned before, is promote the post, not the blog. If you have a particular post that you think someone will like, e-mail that person both the URL (so it's easy to link to, if the reader wants to link to it) and the text (so it's easy for the reader to quickly skim, without having to load a new page on a slow connection). The recipient probably won't have the time to respond, especially if he gets quite a few such e-mails each day, or to give general advice -- but if he likes it, he'll be able to easily link to it. And then, if the recipient sees enough posts that he really likes, he might become a regular reader. But it's the posts that initially make people read the blog, not knowledge about the blog that initially makes people read the posts.


My turn for 20 Questions: 20 Questions, the interview series on Crescat Sententia, continues with an interview with me! Find it here. (For the last interview with Legal Theory Blogger, Larry Solum, click here.)


Blogging from Israel: I'm in Israel for a brief trip, currently blogging from an office that that Tel Aviv University's law school has kindly lent me.

The first thing one can't help but notice about being in Israel, or at least Tel Aviv (by far the largest city), is how modern and Western it seems, and therefore how discordant it is that primitive religious fanatics are so close by, ready to kill everyone and anyone they can. It's as if the Thirty Years War was taking place just outside Boston. Tel Aviv is not the Israel of grim Uzi-toting settlers or blustering politicans that we typically see in the American media, but a modern city filled with crowded restaurants, cafes (bars, too, but Israelis don't drink much), stylishly dressed and often scantily clad women, and a McDonald's every so often (Starbucks pulled out after misjudging the market; oddly, many Israelis have a strong preference for instant coffee).

When I was last in Israel in 1985, it seemed more like Athens than like London in terms of sophistication and general First versus Third Worldedness. Now it seems more like London. Among other changes, few Israelis had traveled abroad when I was here in 1985; now, weekend packages to such locales as Istanbul (!) and Paris are common, as are more extensive trips to Europe and the U.S. Israel is also far more multicultural than it was in 1985. A million "Russians" (immigrants from the former Soviet Union) have arrived, a substantial fraction of whom are not Jewish by culture, birth, or appearance, but who arrived in Israel because of distant Jewish ancestry, family ties to immigrants, or fraudulent documentation. 100,000 or so Ethiopian Jews have also settled here, along with hundreds of thousands of guestworkers from Eastern Europe, the Phillipines, and Thailand. I suspect one reason upper middle class Israelis who have the skills to be mobile are willing to put up with Israel's high prices, relatively low salaries, and crushing taxes is that household help can be had for $100 a week plus board.

The main reminder of the "situation" are the security guards posted at the entrance to restaurants, shopping malls, university entrances, and the like. Women show the contents of their handbags, while men, especially heavier men whose girth might turn out to be a bomb belt, get checked for explosives with an electronic device. My impression is that on a day to day basis the average Tel Avivian is more concerned about the awful economic situation (unemployment over 10%, and lots of recent cuts in government programs) than about negotiations with the Palestinians, for which very little hope is held out.

Sunday, August 24, 2003


California recall and game theory Now that Simon has dropped out, Arnie's chances are better because the Republicans and conservatives won't split the vote as much. Think of this as a public good from the point of view of the Republicans. Economic theory is sanguine about the likelihood that such public goods will be produced (I recommend a technical article by Bliss and Nalebuff, here is the citation and some other relevant references).

The key to optimism is that if no one pulls out of the race, everyone in the relevant group (the party) does badly. Bliss and Nalebuff use the example of dragonslaying, someone will do it if otherwise the dragon destroys the whole town and kills everyone. At the same time, people will wait until the last minute, hoping that someone else steps forward to sacrifice. You hope that "full information," or some approximation thereof, reveals who has to take his lumps and fight the dragon, this can be either the person who most wants the dragon dead, or the person who has the best chance of winning, or the person who fears death the least, depending on the model and the specified conjectures. In the electoral context eventually it becomes obvious who has no chance of winning and that candidate is expected to step forward and drop out.

In the meantime the other candidates will try to look like the potential winners, so as not to be pressured to drop out. They will insist they have no intention of dropping out. McClintock's office just said this, notice that Arnie doesn't bother with such talk, being the natural leader.

The whole analysis is trickier if a candidate can gain from a losing campaign. Ralph Nader seems to enjoy the crusade, even if he puts Bush in the White House.

Basically a party wants very good polls (good information), and strong sanctions against losers who stay in races and split the vote. Parties also, for this reason, distrust and discourage people who run "on principle" and love "crusades." So if the right elements are in place, a party won't have to worry about a split vote. This is one reason why ideological parties, as opposed to pragmatic parties, do not fare so well in the American context. Ideological parties end up with too much vote-splitting.

You can put many other game-theoretic spins on multi-candidate races (a problem with game theory, you can tell too many stories), but this is the one that seems most relevant today.

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