There is no way to know where Kerry will ultimately end up on Iraq.
If Davis is right -- and his column seems to support that position -- and if enough of the public ends up having that perception, that can't possibly be good for Kerry.
Tuesday, September 7, 2004
Kerry on Iraq:
If Davis is right -- and his column seems to support that position -- and if enough of the public ends up having that perception, that can't possibly be good for Kerry.
Saw this movie a couple of weeks ago, and was disappointed; it got very good reviews, and it certainly has some visually stunning items, but the story seemed melodramatic and hackneyed rather than tragic or mythic. Ann Althouse likewise wouldn't recommend it.
A reader writes, apropos the hostages for headscarves question:
1. I am certainly quite interested in the fate of hostages — but that's a much broader question than the fate of the hostages. Once you have paid him the Dane-geld you never get rid of the Dane. If you give in to terrorists to save the lives of these hostages, this substantially increases the likelihood that other terrorists will capture other hostages, to ask for more and more. To quote another truism, "Behavior that gets rewarded gets repeated."
2. Also, even independently of this the question, isn't whether the two hostages' lives are more important than the head-scarf law (which I do not approve of, incidentally). Rather, it's whether they are more important than the ability of Frenchmen to democratically govern themselves, rather than being governed by murderous thugs. Democratic self-government is not the most important thing in the world — but it's hardly chopped liver, either. Many more Frenchmen than two have died to protect it.
(I don't think the analogy to private payments is terribly helpful, for a variety of reasons. Among other things, I think governments do owe a different kind of duty to help their citizens who are victimized by criminals than we have to help strangers who are victimized by criminals, the latter being a matter of charity, rather than any other moral obligation. Moreover, I think the harmful long-term effects of paying off terrorists swamp whatever present benefits there might be.)
I like this attitude:
Reader Jim Herd passes along this story; I particularly like the quote I set in bold below:
You got it, Doctor. Let's hope that's the view of most other Frenchmen, Muslim and not.
UPDATE: I'm pleased that Matt Yglesias agrees.
Drudge Misfires: The Drudge Report often displays banner headlines trumpeting the latest political gaffe or mistep. These tidbits are often amusing, and sometimes telling. Today, however, Drudge misfired with the headline, "Kerry Cosponsored Bill Banning Gun He Waves." According to Drudge (or at least the version of the story still up around noon EST), Kerry co-sponsored the Assault Weapons Ban and Law Enforcement Protection Act of 2003 which would have banned pistol-grip shotguns. Yet the gun in the picture is not a pistol-grip shotgun. Rather it has a traditional stock grip. (Pistol grips look like this.) In Drudge's defense, it could be argued that the bill in question has a broad and vague definition of "pistol grip": "The term 'pistol grip' means a grip, a thumbhole stock, or any other characteristic that can function as a grip." This definition is quite broad, and would seem to apply to just about any gun with any type of grip — and that would almost certainly not have been the intention of Senator Kerry or the bill's other supporters. For anyone who knows just about anything about guns, what constitutes a pistol grip is rather clear, and this ain't it.
Update:Folks at The Corner have also noted the discrepancy. Apparently someone told Drudge, as the language in the item is softer than what was posted this morning (and the silly additional claim that this would somehow violate the Brady law — which covers handguns — has also been removed from the story.) Now Drudge has added the additional — but less-compelling — story line that Kerry received the gun as a gift when the law would have banned such gifts. Perhaps, but that sort of thing rates awfully low on the hypocrisy meter.[As a sidenote, I appreciate it when Drudge — or any other web-based writer — corrects misstatements, but it would be nice if such revisions were acknowledged. Except for typos, I've tried to acknowledge any mistakes in posts that are subsequently corrected.]
Second Update:Glenn's on the case as well, while Publicola e-mails that the gun in question would have been banned after all — but due to its magazine capacity, not the grip. [Update: Publicola has a new post here.]
Another Update: David Kopel weighs in, concluding that the gun in question is "not a "pistol grip" in the ordinary meaning of the term, but it is a "pistol grip" as defined by S. 1431." Fair enough, as I readily defer to Kopel when it comes to guns. Whatever the impact of the bill Kerry once supported, the Kerry campaign says Senator Kerry is now against such a ban, even if before he supported it.
Last Update:Then again, a reader e-mails:
I worked my way through law school by, among other things, doing gunstock work. If you put me on the stand and asked me if the shotgun Kerry is holding has a "pistol grip" stock within the common meaning in the trade, my answer would be yes. The other type (no protuberance ) would be an "English," "straight" , or "straight hand" stock.See, for instance, catalog entries here, here, and here. So, in the end, maybe Drudge didn't misfire so much after all. And another reader writes:
I was a juror on a case involving a shotgun-inflicted double murder, and from what I learned, I'm reasonably sure the involvement of the grip is fairly minimal in that sort of crime. (It's the metallic end that does the damage).
World War III:
Yoel Marcus in Ha'aretz:
Read the whole thing.
Spy Allegations Against AIPAC:
EyeonthePost.org has some thoughts on the Washington Post's coverage of what strikes me as, thus far, a major non-story--the allegation, still unproven, that a low-level, non-Jewish, Pentagon official shared a single classified document discussing American policy toward Iran with members of AIPAC. EyeonthePost reports that the Post is now up to nine articles in eight days regarding an allleged espionage case in which there have been no indictments, no criminal charges, and lots of rumor and innuendo.
The idea that AIPAC would jeopardize its considerable power and influence by knowingly serving as a conduit for Israeli espionage strikes me as completely absurd. Less absurd is the possibility that rogue employees with the organization would do so, but the more likely explanation is the innocent one: AIPAC, contrary to popular belief that if focuses solely on Congress, spends considerable time and energy developing relationships with, and lobbying, the executive branch. During one meeting with a Pentagon official discussing Iran policy, the official shared an unimportant but technically classified document with AIPAC officials, which the official (a political appointee, as I recall) may not have realized was illegal.
In the absence of any hard evidence or criminal indictments, the whole thing strikes me as something of a witch hunt against AIPAC, which many Washington insider fear and loath. Note the gleefulness of the Post's coverage. There is also a great deal of resentment against the "neoconservative cabal" at the Pentagon, and it appears from a distance that someone at the FBI decided that it was worth tailing American officials somehow associated with Feith, et al., to see if they were really spies. I'm reserving judgment, but for now it's a tempest in a teapot, and the whole "scandal" appears more than anything to be a product of paranoia about "Jewish influence," and of the FBI's need to come up with something to justify the resources its wasted on its investigation.
P.S. I have no doubt that, despite its denials, Israel (along with every other country that can muster the resources) spies on the U.S., and vice versa. So?
Related Posts (on one page):
COMMONS BLOG ON NATIONAL GEOGRAPHIC: Interesting observations by several members of Commons Blog on what they perceive as an increasing politicization and activism at National Geographic and National Geographic Magazine. I don't subscribe to National Geographic so can't say one way or the other, but it did prompt me to recall that I used to be a member of the "Friends of the National Zoo" here in Washington, but canceled my membership after noticing a similar trend in the propaganda put out in their Zoogoer magazine.
I recall that this article in the December 2001, "Panama's Kuna and the Perils of Modernity" was the piece that finally prompted me to cancel my membership. From the article, "I would discover that the Kuna indeed have boundless respect for all living creatures surrounding them, and that their knowledge of plants and animals is tremendous. But entering the market economy has been disastrous for the Kuna—and their surrounding ecosystems—on many levels." It goes on in a mindless capitalist and globalization-bashing vein from there. At the time, I wrote a letter to the editor of Zoogoer objecting to the bias of the article who wrote back a snide response, so I just canceled my membership.
Let the Clerkship Games Begin!:
Today, September 7, is a special day for 3L gunners around the country. It's the day that students can begin applying for federal clerkships that will start next summer. Good luck, VC readers! For the latest updates, The Greedy Clerks Board will probably be a good place to check.
Monday, September 6, 2004
Restaurants in L.A.:
My query about Stanford restaurants reminded me to put up my Guide to L.A. Living as a Law Student, which I distribute each year to incoming UCLA students -- mostly restaurant recommendations, but also some delis, bookstores, shooting ranges, and other things I like and recommend.
It doesn't purport to be at all comprehensive; most importantly, it focuses on places that I've tried and enjoyed. But I hope some readers, especially those who are new to L.A., would find it helpful.
Thanks for the restaurant recommendations:
Many thanks to the over forty readers who sent restaurant recommendations -- we've already tried Jing Jing, a Chinese restaurant, and quite liked it. I hope to merge all the responses soon, and when I come up with my master list, I'll post it for the benefit of others.
Computer worm that turns on your webcam:
My friend Mitch Sklar passes along this story:
I'm always skeptical about computer stories in the media, since they so often get details wrong. And legal stories, those, too. And of course science stories, or any stories involving statistics. Come to think of it, I guess I'm always skeptical about all stories in the media, or should be. But in any event, this seems technically plausible.
As the story says, though, paraphrasing "Craig Schmugar, virus research manager at McAfee Inc.," "consumers should really be much more worried about viruses and worms designed to capture keystrokes -- which enable virus writers to steal passwords and personal financial information -- than programs designed to flip on webcams."
Will we all evolve into Republicans?
Who exactly is reproducing?
Of course not all children of conservatives are conservative themselves. Furthermore the larger the share of the population a group holds, the harder it is for that group to maintain control over the beliefs of its children. In any case, here is the full story.
DEMOCRATS REGROUP: The Real Times has a front-page story on the Democrats regrouping after the Republican National Convention. Noting the President's double-digit poll leads, the Democrats argue that Kerry was not fast and aggressive enough in his response to the Swift Boat ads and controversy and this led to the fall in the polls. This could be true, but it strikes me as a little too much "inside baseball." I personally find it hard to believe that the Swift Boat issue really affected that many voters.
My perception, for what it is worth, is that the effect of the Republican Convention was to remind voters what the election is really about. Because news coverage has been dominated by these little day to day stories, this tends to drive the polling decisions. The Convention, by contrast, succeeded providing perspective by reminding voters that all this back-and-forth is nothing but smoke, and that national security and terrorism remains the big issue. To some extent this issue gets pushed to the back pages by all the other little stuff that drives news coverage.
Further credence for this, I think, is that according to the polls I saw last week, the President's big bounce came during the week of the Convention, but before he even spoke (in fact, from what I can tell, his actual speech didn't add much to his bounce). My interpretation of this was that people were responding to the convention's reminder of the importance of the terrorism issue itself, rather than any particular details or issues. So the battle seems to be over defining the issue space, rather than the candidates' positions on those issues.
Possible contrary evidence to my hypothesis, however, is suggested by the Iowa Electronic Markets. The trading data there indicates that President Bush made his greatest strides in the week leading up to the Convention (when the Swift Boat issue dominated the news), and actually fell into a virtual tie on the first day of the convention, before rebounding at the end of the week to where he began at the outset of the week. This tends to suggest that the Swift Boats issue was in fact the moving force for the recent pick-up in the polls and that the convention primarily consolidated those gains.
Thanks to N.Z Bear of The Truth Laid Bear for the pointer.
MEDICAL MALPRACTICE INSURANCE CRISIS: Interesting article in today's Washington Post on the medical malpractice insurance crisis. It is one of the more in-depth news analyses I have seen on the whole issue.
I am especially intrigued by a chart that accompanies it that shows the median settlements and jury verdicts in malpractice cases. Unfortunately, it appears that the on-line story does not contain the chart (or at least I didn't see it). But it is interesting because it shows a very wide range between DC, VA, and MD on both settlements and jury verdicts. Most interesting is that MD has by far the lowest average settlements (only about $17k according to the chart) it has by far the highest median jury awards ($761k). By contrast for DC the figures are $170k versus $465k, and for VA $305k versus $670k. I can't think of any reason why MD's settlements are so low relative to its jury awards--I would have predicted that high jury awards would tend to generate higher settlements as well (a pattern which seems to hold in DC and VA). A few years ago I wrote a short article on the political economy of liability reform and provided some observations on what types of reform may be more political feasible than others and the political dynamics that can bring about reform, using President Bush's successful liability reform efforts while Governor of Texas as a case study. Some of the details are a bit dated now, but the general analysis I think remains sound. (If that link doesn't work, the essay can also be found here.)
Not coincidentally, Jeffrey Birnbaum has an article on the same page of the Post noting that business interests are increasingly tilting towards supporting Republicans. He describes in particular the effect that the naming of John Edwards as VP candidate has had on galvanizing the Chamber of Commerce, which traditionally had been fairly neutral, but which has been galvanized by concerns over the liability system and liability reform issues. According to Birnbaum there are also some business 527 groups warming up in the bullpen to attack Edwards on the trial lawyer issue, including the Prosperity Project. Unfortunately, much of the cool stuff in this article is also in a chart that isn't reproduced on the Washington Post web page (at least not with the article).
Amazingly, according to Birnbaum's figures, Microsoft continues to support Democrats and Republicans almost equally ($454k to Republicans and $404k to Democrats). Which simply raises again the often-remarked question of how could a company that is so smart on business matters be so dumb when it comes to politics? Do they really want another Democratic Attorney General?
Sunday, September 5, 2004
Sunday Song Lyric: It's hard to believe, but the summer's just about over. Almost as unbelievable, but in eight months of posting song lyrics, I don't think I've posted anything by George Gershwin. To remedy that, and give one last nod to summer, here's one of Gershwin's most famous songs, recorded by crooners and rockers, rappers and balladeers: Summertime.
Update:Several have e-mailed to correct a slight error above. While George Gershwin wrote the music to "Summertime," the lyrics are typically credited to Ira Gershwin. Du Bose Heyward is also credited for writing the story of Porgy & Bess, from which Summertime came.
Saturday, September 4, 2004
SIGNED, "A FAN": A recently received email: "At this point I swear I will pay solid money in small bills to make the wine wars stop. Signed, A Fan"
For all of you out there, I've pretty much finished up on the wine wars posts and I apologize if I bothered you with tedium. I decided to put that last bit up on the Labor Day weekend when the Conspiracy is largely at rest. Thanks for all your interest and the many comments I have received on that.
I have also pasted all of the posts into a Word document (my thanks to David Smith who actually had the idea and did the original work of utting them together--and even corrected my spelling!) that I will be happy to email to anyone who would like to have it all.
WINE WARS, PART 17—ANALYSIS OF JUSTICE O’CONNOR’S MISUSE OF LEGISLATIVE HISTORY: Justice O'Connor's error here is quite profound. It is clear that she has simply failed to grasp the context within which the 21st Amendment was enacted. She has completely ignored that the 21st Amendment was enacted to effectuate the repeal of the 18th Amendment. The problem the 21st Amendment sought to address, therefore, was that the 18th Amendment unwisely gave to the federal government the power to regulate wholly local affairs regarding alcohol in order to impose national prohibition. Thus, it meant to restore to the states the power to exercise their police power over local affairs, and restored the Wilson Act and Webb-Kenyon in order to allow the states to apply their police power to imported alcohol as well.
Justice O'Connor, by contrast, reads all of these statements in isolation from this historical context. She seems to believe that the problem that the framers of the 21st Amendment sought to correct was the states' lack of power over interstate commerce, rather than the federal government's overreaching power to regulate local affairs. This simply is not correct. Moreover, it is completely illogical—giving the states a new power over interstate commerce would have done nothing to correct the real problem, which was the federal government's power under the 18th Amendment over local affairs. Thus, under her interpretation, if the purpose of §2 was to give the states plenary power over interstate commerce, that remedy of giving the states power over interstate commerce is not even aimed at the problem of federal overreaching into local affairs.
Moreover, as illustrated by Wagner's remarks, there was a consensus that the interstate commerce problem of discrimination in favor of interstate liquor had been solved by the Wilson and Webb-Kenyon Acts. Thus, there simply was no reason to give the states a new power to regulate interstate commerce, because the Wilson and Webb-Kenyon Acts were constitutionalized by §2. Similarly, the imposition of Prohibition by the 18th Amendment had nothing to do with issues involving interstate commerce, but rather to impose federal regulation of local liquor sales—i.e., saloons. In turn, this is why the proponents of §3 favored its inclusion, so as to prevent the reestablishment of the saloon, and why Wagner and others opposed it, because it would retain the federal intervention into local liquor regulation.
In other words, because Justice O'Connor has failed to understand the historical context in which the 21st Amendment was enacted, she has essentially turned the entire debate backwards and upside down. The debates are about WITHDRAWING the federal government from the regulation of local liquor affairs, NOT about giving the states new power to regulate interstate commerce. To put it another way, the purpose of the 21st Amendment was to END the federal invasion of local liquor regulation, rather than to BEGIN state invasion of the federal interstate commerce power.
Justice O'Connor is really profoundly confused about the purpose of the 21st Amendment. In many ways, her misuse of legislative history here is a useful cautionary tale of the problems with trying to do legislative history when one is not willing to actually try to understand the context in which the relevant words are spoken. In this case, her sloppy use of legislative history has colored almost two decades of Supreme Court jurisprudence and academic thinking on the intent of the 21st Amendment. It is efforts like hers that provide ammunition to those who would reject legislative history in all contexts.
WINE WARS, PART 16—O’CONNOR ON OTHER SENATORS AND PROPOSED §3: Justice O'Connor cites a litany of other Senators who she believes support her interpretation. Rather than beating a dead horse still further I will just offer a brief comment on each of these. "Still others emphasized the plenary power granted the States by § 2. Senator Walsh, a member of the Subcommittee that had held hearings on the Amendment, said: `The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter.' Id., at 4219." Obviously, this specific mention of the "consignee as well as thereafter," refers to the precise language used in the Supreme Court's earlier commerce clause decisions in Rhodes, etc., so this is quite clearly narrowly targeted at that interpretation of the commerce clause and suggests nothing about giving the states power to enact discriminatory regulations.
She also adds comments by Senator Robinson, "In response to a question from Senator Swanson, Senator Robinson of Arkansas affirmed that `it is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported.' Id., at 4225. Thus, upon the motion of Senator Robinson, the Senate voted to strike § 3 from the proposed Amendment. Id., at 4179." Again, the import of this is quite clear and quite the opposite of what Justice O'Connor believes it means. Under the 21st Amendment, as with Webb-Kenyon, under their police power the states had the authority define what constituted intoxicating liquors and how they were to be sold and transported within a state. The federal authority incorporated these state laws into the Webb-Kenyon Act for purposes of enforcement. Senator Robinson makes clear that his criticism is again that the problem with §3 is that it does not withdraw the federal government from local activities. "The issue here is whether the federal Government is going to take away from the States all power after repealing the eighteenth amendment, in the even the repeal shall be ratified." Cong. Rec. 4226. He then goes on to discuss his desire to prevent the return of the saloon, but that proposed §3 was not the way to do it. There is nothing in this effort to withdraw the federal government from local affairs that implies that §2 was intended to allow the states to invade the federal government's commerce power.
Speaking immediately after Senator Robinson, Senator Tydings elaborated on the point. After reciting the abysmal failure of federal prohibition he stated, "I say that we never should have taken this question [regulation of the saloon] from the States. It is not a national question. It is a local question, and it can be solved best in the communities that have to deal with it. This government never was conceived with the idea that we would reach out into every community and govern the habits and the morals and the religion of people in those communities. We were to deal with national questions only—the Army and the Navy, intestate and foreign commerce, post offices and post roads, and the rest of the 18 powers govern to us by the Constitution. We had no right at all except by turning our backs upon the philosophy of the Constitution, to go out in the States and assume this power and this control. The sooner we give it back to the States the sooner we shall establish law and order and decency and some respect for government."
Senator Bingham immediately followed Senator Tydings. His remarks were focused on the fact that the framers of the original Constitution specifically considered and chose not give to the federal government a general police power authority to enact "sumptuary legislation, "which would deal with the habits of the people, with what they ate, drank, and wore," but that they recognized that this moral regulation was properly a matter for the local communities. He then added, "In adopting the eighteenth amendment we interfered with the growth of temperance" by trying to impose a uniform national standard of morality on the country. Again, his remarks make no reference to giving the states new powers to regulate interstate commerce, but focus solely on the failure of national prohibition.
I will spare the reader further prolonged recitation of statements on this point. In an earlier post I went through the real legislative history of the 21st Amendment in some detail, but the discussion here is designed to show that even those few snippets that Justice O'Connor points to do not support her interpretation.
WINE WARS, PART 15—O’CONNOR ON SENATOR WAGNER AND PROPOSED §3: So that brings us to Justice O'Connor's last major figure, Senator Wagner. She quotes him at length: Senator Wagner was an especially vigorous opponent of the proposed § 3. In his view, it failed to "correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed." Id., at 4144. In Senator Wagner's view, the danger of § 3 was that even this limited grant of authority to the Federal Government would result in federal control of the liquor trade:
"If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold....
* * *
"It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture.... If that is to be the history of the proposed amendment--and there is every reason to expect it--then obviously we have expelled the system of national control through the front door of section 1 and readmitted it forthwith through the back door of section 3." Id., at 4147.
At this point it is not clear whether I even need to elaborate on why this speech proves the opposite of what Justice O'Connor believes. The quote from Wagner quite clearly indicates that Congressman Wagener opposed §3 because it would have given Congress the power to meddle in local affairs and to thereby interfere with the state's exercise of their police power, and indeed, there was the fear that Congress might use this power to reimpose prohibition on the states. In expressing his desire to restore to the states their control over these local affairs by deleting §3, there is nothing here to suggest that he thought that §2 gave to the states Congress's power to regulate interstate commerce. It should be equally obvious that unlike O'Connor, Wagner did not consider this to be a "limited grant of authority," but rather undermined the essential purpose of the 21st Amendment.
Wagner quite clearly believed that the purpose of the 21st Amendment was to restore the pre-18th Amendment constitutional and legal regime. Immediately before the above-quoted passage, Wagner states, "Mr. President, the pending joint resolution tendered to the Senate and the country is called a proposal to repeal the eighteenth amendment, and because artfully it employs the word `repeal' in its first section, it pretends to fulfill the wish overwhelmingly expressed by the American people in the last election. But I submit that the pending resolution does not in fact repeal the inherently false philosophy of ht eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems." Cong. Rec. at 4144. As Wagner makes clear, the 21st Amendment did not embody the bizarre theory adopted by Justice O'Connor that the 21st Amendment restored the pre-Constitutional balance where the states controlled interstate commerce. Rather, Wagner plainly states that it was intended to restore to the states control over their LOCAL affairs governing liquor.
Wagner elaborates on this point even more plainly, "I have many times declared and I now repeat that the question which has troubled the American people since the eighteenth amendment was added to the Constitution was not at all concerned with liquor. It was a question of government: how to restore the constitutional balance of power and authority in our Federal system which had been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution. On the contrary, it perpetuates the lack of balance, the absence of symmetry, the confusion and overlapping of Federal and local authority." Id. at 4144. Elsewhere he elaborates on the problems that this concurrent authority inevitably would cause, in that the operation of the Supremacy Clause would inevitably mean that local regulation would be overridden by federal legislation. "The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility."
Now, I don't know how Wagner could be any more clear in expressing his intent that that the purpose of the 21st Amendment was to restore the pre-18th Amendment constitutional balance. Recall also, that it was Wagner who clarified Blaine's "in effect" language by making it clear that Webb-Kenyon did not give the states control over interstate commerce, but rather was an exercise of congressional power to allow states to enforce their legitimate police powers against interstate alcohol. Somehow, Justice O'Connor draws from this that Wagner's criticism of §3 illustrates his belief that §2 gave the states plenary power. With respect to Lea and Blaine, O'Connor's argument may be reasonable, but is wrong. With respect to Wagner's statements, however, O'Connor's interpretation cannot be taken seriously. This is pure sloppiness or a fundamental misunderstanding of what the framers of the 21st Amendment were trying to do. Regardless, read in context, it is clear that Wagner was arguing for a restoration of the pre-18th Amendment legal and constitutional regime.
WINE WARS, PART 14—SENATOR BLAINE AND PROPOSED §3:
Amazingly, Justice O'Connor next turns to proposed §3, and states that the decision to delete proposed §3 demonstrates that §2 was intended to give plenary power to the states over interstate commerce. I have explained previously why this reading of proposed §3 is incorrect. Here, therefore, I will limit myself to explaining why Justice O'Connor's interpretation of the relevant legislative history doesn't support her view.
She writes, "When the Senate began its deliberations on the Twenty-first Amendment, the proposed Amendment included a § 3 not present in the adopted Amendment. This section granted the Federal Government concurrent authority over some limited aspects of the commerce of liquor." As noted previously, her characterization of §3 as giving the federal government control over "some limited aspects of the commerce of liquor" is blatantly incorrect. As Congressman Lea himself states—in the paragraph of his speech immediately following the "extreme of State rights" passage—§3 was NOT thought to be a "limited" provision. Instead, §3 struck at the very heart of the problem with Prohibition—the unworkable system of concurrent authority over local affairs governing liquor, and the fear that the federal government could actually reimpose Prohibition or otherwise meddle in local affairs. The purpose of the 21st Amendment, to refresh the reader's memory, was to reinstate to the states their local police power regarding alcohol, not to give them new powers over interstate commerce. So §3 was not by any means a minor or limited power, it undermined the central purpose of §2.
We then turn to Justice O'Connor's key argument, the comments of Senator Blaine. "Even Senator Blaine, the Chairman of the Senate Subcommittee that had held hearings on the proposed Amendment, opposed the limited grant of authority to the Federal Government in § 3. According to Senator Blaine, when the Federal Government was organized by the Constitution the States had `surrendered control over and regulation of interstate commerce.' 76 Cong.Rec. 4141 (1933). He viewed § 2 of the Amendment as a restoration of the power surrendered by the States when they joined the Union. Section 2 `restor[ed] to the States, in effect, the right to regulate commerce respecting a single commodity--namely, intoxicating liquor.' Ibid. In his view, the grant of authority to Congress in § 3 undercut the import of § 2: `Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment.' Id., at 4143."
Note several points here. First, although Justice O'Connor introduces Senator Blaine as the Chair of the Senate Subcommittee that had held hearings on the Amendment, he specifically notes in the moving to his interpretation of §3 that he is giving his "own personal viewpoint," not that of the Subcommittee. It seems obvious and under normal circumstances one would think it need not be expressly stated, but if Blaine is expressly and clearly drawing a distinction between his "personal viewpoint" and that of the committee—doesn't that mean it is obvious that his "personal viewpoint" is different from that of the committee. Oddly, Justice O'Connor seems to believe that in distinguishing his personal viewpoint from that of the committee, somehow he is actually speaking for the committee.
More importantly, Justice O'Connor again loses the context of Blaine's remarks. A key exchange between Blaine and Wagner, which I quoted in an earlier post, color's the whole tenor of Blaine's remarks. Again to quote it: SEN. BLAINE: "Then came an amendment to the Wilson Act known as the Webb-Kenyon Act.... The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actually entered the confines of the State...." SEN. WAGNER: "Mr. President, will the Senator yield?" SEN. BLAINE: "I see my able friend from New York shaking his head. I yield to him." SEN. WAGNER: "I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce." SEN. BLAINE: "I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same--that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress."
As this clarifying exchange indicates, Blaine did not intend to state that the states were being given the power to regulate interstate commerce, although his loose phrasing suggests that. Rather, Congress retained the power over interstate Commerce, and §2 simply constitutionalized Congress's exercise of its Commerce Clause authority to allow states to treat domestic and interstate liquor equally.
Moreover, Blaine places this entire debate over the 21st Amendment as the culmination of the long history that I have described in earlier posts. He summarizes the history starting with the Wilson Act, and the problem with Rhodes v. Iowa, where the Supreme Court held that the law did not prohibit interstate importation for personal use. Then Webb-Kenyon and the experience with Clark distilling. Then further modifications to Webb-Kenyon to tighten other minor holes in the law, leading to the present day of political and constitutional uncertainty of the states in enforcing their powers to remain dry. As he makes clear, the 21st Amendment is merely the culmination of this process, and an effort to reassure dry states by constitutionalizing this prior history.
Following his recitation of all of this historical progress Blaine then goes on to note the tenuous constitutional and political foundation of Webb-Kenyon (described in an earlier post) and adds, "In the case of Clark against Maryland Railway Co. there was a divided opinion. There has been a divided opinion in respect to the earlier cases and that division of opinion seems to have come down to a very late day. So to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line. Mr. President, the pending proposal will give the State that guarantee." He then states the passage that O'Connor quotes about restoring liquor to its pre-Constitutional status, but in so doing he uses the same language that Wagner clarified a moment ago, that §2 would "in effect" give the States power over interstate commerce in liquor—which, as he explained then, "in effect" meant that Congress was exercising its power to help the states enforce their laws.
And note his concluding passage, "I am opposed to the dry States interfering with the so-called wet States in connection with this question of intoxicating liquors; and so, by the same token, I am willing to grant to the dry States full measure of protection, and thus prohibit the wet States from interfering in their internal affairs respecting the control of intoxicating liquors." This is the key passage—as Blaine clearly states, §2 relates to returning to the states control over the "internal affairs."
Finally, Blaine's his "personal viewpoint" on which O'Connor relies seems consistent with what has been said so far. He states, "Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment."
But O'Connor ignores the remainder of Blaine's remarks on this point. Blaine states, "The eighteenth amendment is an inflexible police regulation which might be appropriate in a municipal ordinance in those sections of our country where the people desire a bone-dry local regime. The eighteenth amendment does not give the Congress a general grant of power to regulate. It is strictly a prohibition, a mandate. It is specifically a prohibitive provision of the Constitution. Surely, Mr. President, it was never designed that our Constitution would be a compilation of local ordinances regulating the lives the customs, and the habits of our people. But that is exactly the character of the eighteenth amendment. It has no place in the Constitution." He then goes on to add that he would support any and all versions of sections 2 or 3 of the Constitution, so long as the final result was the repeal of Prohibition. "My object is to take the eighteenth amendment out of the Constitution." 76 Cong. Rec. 4143-44.
It is thus clear from Blaine's remarks considered in context that he, like everyone else, understood the purpose of the 21st Amendment to be to repeal the 18th Amendment and thereby to restore the pre-18th Amendment constitutional balance, while constitutionalizing the Wilson and Webb-Kenyon Acts to provide assurance to the dry states. There is no indication that he specifically meant to repeal the nondiscrimination principle that was included in the Wilson and Webb-Kenyon Acts in enacting the 21st Amendment. Indeed, as Wagner clarified with Blaine, Blaine recognized that those acts were an act of the Congressional commerce clause authority, not a ceding of that authority to the states.
WINE WARS, PART 13—CONGRESSMAN LEA’S STATEMENTS: The first mention of legislative history that O'Connor points to is a floor statement by Rep. Lea of California. O'Connor writes, "Although neither the House of Representatives nor the state ratifying conventions deliberated long on the powers conferred on the States by § 2, but see 76 Cong.Rec. 2776 (1933) (statement of Rep. Lea of Cal. that the section was "the extreme of State rights" because it obligated the Federal Government to assist the enforcement of state laws "however unwise or improvident")." Note a few things about Rep. Lea's statement. It is part of the Congressional Record of January 28, 1933. If the statement in question was actually uttered on the floor of the House, it was done so not during the general debate over the 21st Amendment (which occurred primarily during February of that year) but rather is inserted into the middle of the debates over the "Departments of State, Justice, Commerce, and Labor Appropriate Bill, Fiscal Year 1934" in a Section of the Congressional Record entitled "Extension of Remarks" (which may suggest that either the words were neither spoken nor heard by anyone but merely inserted into the record, although it is not clear).
Rep. Lea's statement thus occurs immediately after Congressman Kerr gave remarks on the funding request of the Department of Commerce as it concerned the commodity division of the Department, praising the commodity division for its efforts in promoting peanut and tobacco growers. The final sentence before Congressman Lea's remarks by Congressman Kerr were, "To destroy the tobacco industry or even neglect it would imperial the greatest tax-producing commodity of this nation." Then, with no warning or context, Lea takes the floor and utters the remarks in question (to which we will return in a moment). Immediately following Lea's remarks, Mr. Gibson took to the floor to address the question of the funding request of the Labor Department covering the Bureau of Immigration and the financial difficulties of the Immigration Bureau caused by an unusually large number of alien deportations during the prior year.
I go into this discussion of context in order to demonstrate an obvious point—Lea's comments, if uttered at all, were done at a completely incongruous time, when Congress was not even specifically debating the 21st Amendment. They are quite obviously one man's view, uttered at a time when no one was paying attention, and given that the 21st Amendment wasn't even under discussion at the time, there is no indication that anyone heard or considered Lea's comments as shedding any light on the 21st Amendment at all. Um, I mean, no one except Justice O'Connor.
Ok, so let's look at the substance of the remark. Justice O'Connor says it evidences that section 2 of the 21st Amendment was, "'the extreme of State rights' because it obligated the Federal Government to assist the enforcement of state laws `however unwise or improvident.'" But is that what Lea really meant?
Lea—like all the others discussed in earlier posts—believed that the actual purpose of the 21st Amendment was to restore the pre-21st Amendment constitutional balance. It is true that he thought that §2 would force the federal government to help enforce state laws, no matter how "unwise or improvident." But as noted in earlier posts, the purpose of all preceding legislation was to help the states to enforce their laws against interstate alcohol, which is clearly different from enabling states to flaunt the nondiscrimination principle of the dormant commerce clause. There is no indication that Lea thought that the 21st Amendment would make valid state laws that were otherwise constitutionally invalid.
He then states: "No one could anticipate the many varied, and perhaps unwise, provisions that might be written by the various States of the country. In this way their mere legislative action would compel this action of the Federal Government without the approval and even against the will of Congress. That proposal, on principle, is the extreme of State rights." Note, however, that is saying the final phrase that O'Connor quotes, he is not endorsing the 21st Amendment on this ground—he is criticizing it! The problem with §2 is that it might be read to embody the "extreme of State rights" which is why he is opposed to it. Justice O'Connor, of course, reads out the context that Lea is criticizing §2 on this ground, suggesting that he was endorsing this reading. He notes, however, that this provision although illogical, is "unimportant in its practical effects." Why? Because even with §2, Congress retained its power over interstate Commerce in alcohol.
Lea then goes on to add his criticisms of proposed §3 (discussed in earlier posts). He states, "The proposal that Congress shall have concurrent power with the States to regulate and prohibit the sale of intoxicating liquors to be drunk on the premises where sold, is the extreme of centralized power or Federal interference in State affairs. This provision would give the Congress power to enforce prohibition on a State against its will and also to provide regulatory provisions in favor of the liquor traffic in opposition to the laws of dry or semidry States." He then adds the criticism I rehearsed earlier, "If there is anything to be learned from our experiences with Federal prohibition, it is the unwisdom o the Federal Government interfering in State affairs and forcing on unwilling States obnoxious sumptuary legislation. The Senate amendment in effect proposes to continue Federal interference with State affairs, injects new questions of Federal regulation, and retains he liquor problem in national politics for a generation to come."
Overall, then, Lea's comments make no mention of granting the states any new substantive constitutional powers to erect protectionist barriers against interstate commerce, but rather criticize §2 for giving federal power to enforce otherwise valid state laws. And like others, he criticizes §3 for retaining the real problem with Prohibition—the federal intervention in local affairs. Section 3, he observes, would essentially give the federal government a de facto police power to regulate all aspects of liquor sales. Under proposed §3, "This provision would give the Congress power to enforce prohibition on a State against its will and also to provide regulatory provisions in favor of the liquor traffic in opposition to the laws of dry or semidry States. The wildest friend of centralized government could scarcely approve of Congress enforcing the sale of liquors on dry States over the opposition of their laws and perhaps of their Constitution. I do not anticipate that this provision, if enacted, would in practice be so applied. The fact that such a power is seriously proposed to be placed in the Constitution should excite the opposition of all." He adds, "It seems especially designed to preserve the obnoxious and unworkable features of Federal prohibition."
WINE WARS, PART 12—JUSTICE O’CONNOR’S MISUSE OF LEGISLATIVE HISTORY: Over the past few weeks (see August archives) I have explained why it thus seems clear to me that the Wilson Act, then the Webb-Kenyon Act, then the 21st Amendment, and still more recently the 21st Amendment enforcement act all manifest the same purpose—the enable the states to better enforce their long-standing police powers regarding the regulation of alcohol by allowing them to apply their police powers to alcohol shipped in interstate commerce the same as alcohol produced within the state. As a piece of history, this is a powerful narrative, that makes sense within the context in which these legislative enactments arose. By contrast, there is nothing in this historical narrative to suggest that the states would have needed plenary power over interstate commerce in alcohol or that Congress would have had any good reason to cede its interstate commerce power to the states. There is no indication that Congress intended to remove the traditional limitation—in place since at least Walling v. Michigan in the 19th Century—that the state police power to regulate or even ban alcohol does not enable the states to erect protectionist barriers to interstate commerce.
Nonetheless, Justice O'Connor claims that the legislative history of the 21st Amendment does exactly that. In her dissenting opinion in 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987), she concludes that the 21st Amendment was intended to give the states plenary power over alcohol, a position to which she has tenaciously clung notwithstanding repeated Supreme Court rulings to the contrary. Chief Justice Rehnquist also signed onto her dissenting opinion. Put bluntly, Justice O'Connor's use of legislative history in 324 Liquor is a "how-to" lesson in the misuse of legislative history—exactly the sort of sloppy cherry-picking that discredits the use of legislative history generally. A good use of legislative history would look at particular statements within the general historical context of the time, the legislative context in which the statements arose (i.e., what problem were they trying to solve), and finally and most elementary, the particular sentences should be read within the context of the actual speech that was being given, as isolated sentences are obviously given context by the surrounding sentences and paragraphs. Instead, in 324 Liquor, Justice O'Connor takes a few isolated snippets out some floor speeches on the 21st Amendment and strips them of both their historical and speaking context, ignores qualifications attached to them, and then concludes that these bits manifest the will of Congress at the time. In this Part of Wine Wars I will go through each of the statements on which she relies and show why they do not support the inference that Justice O'Connor wants to draw from them—indeed, in some cases, it will be seen that they actually demonstrate the opposite from what she wants to say they do. This will take several entries, so I will try to break these down into bite-sized arguments.
First, one thing that is interesting about O'Connor's dalliance into legislative history in 324 Liquor is that I had a research assistant go back and look at all the briefs that were filed in that case, and it appears that none of the legislative history arguments that O'Connor makes were actually briefed in that case. This doesn't mean that she is right or wrong, of course, but it does mean that the issue does not appear to have been fully briefed before her, including pointing on the problems with her reliance on legislative history that I will describe below. So the issue should be ripe for de novo consideration by the Supreme Court.
What is ironic, of course, is that Justice O'Connor begins her dissent by criticizing the court for its failure to fully consider the legislative history of the 21st Amendment in its cases on the topic. She writes, "Because the Court has seen fit in recent years to dismiss this legislative history without analysis as "obscure," Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274, 104 S.Ct. 3049, 3057, 82 L.Ed.2d 200 (1984); ante, at 727, n. 10, a fresh examination of the origins of the Twenty-first Amendment is in order and long overdue." I agree that a fresh examination of the origins of the 21st Amendment is long overdue as well—I'm just not sure that Justice O'Connor will like where it leads.
Friday, September 3, 2004
BROADCASTING REVISIONISM: Rather than just complaining (as I've noted, justifiably) about its rhetoric, Timothy Burke is thinking carefully about the substantive point of the historians' letter to the media about Michelle Malkin's "In Defense of Internment."
He attributes Malkin's success in drawing uncritical attention from the major media to two things: (a) her saying something contrarian about a matter of current interest, and (b) her being mediagenic.
He then says this:
Taking all this into account, the Historians' Committee for Fairness still has a valid fundamental point. How do you decide what's worth covering and not covering? Because not everything that is contrarian and potentially mediagenic gets the coverage—the coverage without, for the most part, attention to the dissenting views of others—that Malkin has. To put it bluntly, why does Michelle Malkin get on television and David Irving, the infamous Holocaust revisionist, not get on television? Irving's argument that the Nazis did not actually set out to exterminate the Jews is factually detailed and it's certainly contrarian, and he's actually somewhat creepily mediagenic.
Timothy Burke's point about David Irving and Holocaust revisionism deserves a moment's reflection. Let's consider a hypothetical. Suppose an author were to publish a book revisiting the pogroms across Germany in November of 1938 that we know as "Kristallnacht." Suppose that author's thesis went something like this: "Yes, German and Austrian Jews certainly and regrettably suffered in the attacks of November 9 and 10, 1938, and in the incarceration of some 26,000 in concentration camps for a period of many weeks that followed. We have seen, time and again, the images of the broken storefront windows and the burning synagogues that the Jewish grievance community and politically correct academics want us to see. We have been led to believe that this was an unprovoked outburst of baseless hatred on the part of the German people. But what Jews and academics do not tell you, and do not want you to know, is that the so-called Kristallnacht had a real cause: A Jew did, in fact, murder the German official Ernst vom Rath in Paris on November 7, 1938, at the German Embassy, and documents from the time show that Josef Goebbels knew this and saw the murder as proof of a larger Jewish threat to the Reich."
This, in the context of the Holocaust, is the precise analogue of Malkin's thesis about the Japanese American internment. Please note that I'm not suggesting that Malkin herself believes or has ever said any such thing about Kristallnacht specifically, or the Holocaust generally. I am sure she does not. believe such a thing. I am also not comparing Kristallnacht to the eviction of Japanese Americans. I am instead making a point about the nature--the architecture, if you will--of her argument. It is this: you have been led to believe that what seems to be a groundless, racist government action lacked any foundation and can therefore be explained only as an expression of hatred, but that is not so; in fact, there was a real threat to the government that supplied a foundation for what they did.
So, to return to Timothy Burke's observation: suppose that a mediagenic author were to publish such a work. Would MSNBC, CNBC, Fox, C-SPAN, HBO, and countless radio programs present that work at all? If they did so, would they present it uncritically, and without rebuttal?
Of course they wouldn't. And so the question is: why the difference?
A couple of possible answers suggest themselves to me, and neither is very attractive.
One is that it's easier for us to recognize malevolence in others' ancestors (the Nazis) than in our own. Thus, what seems incontestably unjustifiable in the history of others remains debatable in our own.
The other is that Holocaust survivors and their children and grandchildren (full disclosure: I am one), and the Jewish community more generally, would not countenance an unrebutted presentation of such a work in the major media, whereas the Japanese American community is to some extent still (as it was 60 years ago) a safe target for such an assault.
In the end, Timothy Burke is right:
"If the people who make decisions about programming and content at the talk shows want to tell me and other historians that they wouldn't put Irving on the air because what he says in his work is factually specious and untrue (which it is), then they're telling me that they make these decisions based either on their own personal and professional assessments of the factual truthfulness of works of non-fiction, or they make these decisions based on consultation with experts about what is reasonable, plausible, debatably true work and what is poor, scurrilous, offensive lies. If this is true, the question becomes potent: why is Michelle Malkin on the air now? Because if talk show producers consult experts on internment, they'd certainly find that almost everyone thinks Malkin's work is shoddy and inaccurate, quite aside from its ethical character. If talk show hosts read and assess work independently to decide whether it is worth covering, then I'm hard-pressed to understand why they think Malkin's is legitimate.
Update: The comments over at my blog have started to pour in, as I knew they would, calling me vile and reprehensible for comparing Michelle Malkin to a Holocaust revisionist. A careful reader of what I wrote will, I am confident, understand what I actually do. I construct a hypothetical about one episode from 1938 Nazi Germany about which there is historical consensus. (I set aside the disagreement that actually seems to exist over whether Grynszpan shot vom Rath in enraged protest or because the two had been lovers.) I imagine a book that depicts the consensus as a "myth" by a similar mode of argument, and with a similar type of evidence, that Malkin's book uses to depict the consensus about the internment as a "myth." I postulate that such a book about 1938 Nazi Germany, published today, would not receive uncritical attention from American major media. And I ask why Malkin's has, and suggest a couple of possible answers.
To those who are rushing over to my blog to call me names for insulting Michelle Malkin, I hope that on their way over they'll think for a moment about the insult that Malkin's book represents to many thousands of loyal, patriotic, and innocent Americans of Japanese ancestry who had to endure the questioning of their loyalty 60 years ago, and now, thanks to Malkin's book and the uncritical attention the media has lavished upon it, are having to endure it again.
Councilman Amicus Brief:
In news relating to the recent First Circuit wiretapping decision in United States v. Councilman (previous posts here and here), a coalition of privacy groups including the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association have just filed an amicus brief in favor of the goverment's petition for rehearing. The brief is available in .pdf format here.
WHOM TO BELIEVE? MICHELLE MALKIN, OR THE CANADIAN PRIME MINISTER? Michelle Malkin's revisionist telling of the story of the Japanese American internment turns crucially on one supposed military fact: Franklin Roosevelt and his top military brass feared a Japanese assault on the West Coast. This, she claims, rather than prejudice, panic, or economic or political pressure, explained their decision to uproot American citizens of Japanese ancestry from the West Coast, while taking no programmatic action anywhere against identically situated Americans of German or Italian ancestry. And, she argues, it explains why Roosevelt and his Secretary of War and Assistant Secretary of War took so seriously a couple of ambiguous references in top-secret decrypted Japanese diplomatic messages referring to the recruitment of "second generation" Japanese spies.
Greg Robinson of the University of Quebec at Montreal has pointed me to the excerpt from Canadian Prime Minister MacKenzie King's diary that you see in this post. It's from June 25, 1942, and reflects a conversation that King had with Roosevelt in Washington during a meeting of the Pacific War Council. (It doesn't reproduce clearly on this page; click on it to get a clearer image.)
According to King, Roosevelt "said he thought the Japanese were foolish in thinking we would be much affected by these attacks they were making on the Pacific Coast. That it was not likely to alarm the people unduly but rather to strengthen their feeling of resistance. It was clear that he, himself, did not contemplate much in the way of an attack on our Pacific Coast but felt that the possession of the bases at Kiska [in the Aleutian chain] and elsewhere were to help to meet the situation that might develop between Japan and Russia."
Admittedly, this is not Roosevelt's diary; it is King's. But it is a far, far clearer window into Roosevelt's thinking about military risks than the suppositions—for that is all Malkin can muster—about which decrypted messages Roosevelt must have seen and what he must have thought they meant in the context of what he must have feared about a Japanese assault on the West Coast.
One other thing: before people start shouting about the American victory at Midway in early June of 1942, and about how the military situation on June 25, 1942 (when he spoke to King) was different from the situation on February 19, 1942 (when he signed the executive order authorizing the military to take action against Japanese Americans and others on the coast), consider this: seven of the ten permanent relocation centers for Japanese Americans in the U.S. interior were not yet open (indeed, had not yet even been built) when Roosevelt talked to King. (Camp opening dates: Granada (Colorado): 8/27/42; Heart Mountain (Wyoming): 8/12/42; Jerome (Arkansas): 10/6/42; Rohwer (Arkansas): 9/18/42; Minidoka (Idaho): 8/10/42; Topaz (Utah): 9/11/42; Gila River (Arizona): 7/20/42.)
Thus, Robinson and I have shown--again--that at the time the government was still developing the bureaucracy and infrastructure of confinement, the Commander in Chief did not himself believe the "military necessity" rationale that Malkin imagines for him.
More on Hastert's smears of Soros:
Jack Shafer (Slate's Pressbox) points to this statement from Hastert on an Aug. 23 radio show:
This is further evidence (if you need more) that Hastert's recent, just slightly more ambiguous statement that "I don't know where George Soros gets his money[;] I don't know where -- if it comes overseas or from drug groups or where it comes from" is indeed an allegation that Soros was getting money from drug criminals, rather than from pro-drug-legalization groups. If Hastert has evidence that Soros is indeed getting drug money, then by all means he should present it, and quickly. If he doesn't, then, as I originally said, this is a smear, and deserves to be strongly condemned.
Those who are tempted to come to Hastert's defense by saying that he was just giving a hypothetical example -- "I'm not saying he is getting this money, I'm just saying we can't know" -- should ask themselves what they'd think about (the purely hypothetical case of) some Democratic politician's saying "I don't know where Swift Boat Veterans for Truth are getting their money, if it comes from overseas or from neo-Nazis."
Thursday, September 2, 2004
VOX DAY ON MILITARY NECESSITY:
According to Vox Day, any military historian worth his or her salt could tell you that the top military brass back in early 1942 knew that a full-blown Japanese assault on the U.S. mainland was inconceivable--and that their reliance on that rationale for evicting Japanese Americans from the West Coast was therefore bogus.
I'm no military historian, so I can't really venture an opinion on whether or not Day is right about the forces and logistics that would have been necessary for a mainland assault. Perhaps others more expert than I might wish to respond.
Update:Vox Day has posted more facts and figures documenting the impossibility of a Japanese assault on the West Coast. So far, I don't see anybody out there contradicting Day's military analysis. Day also says this: "Malkin has no case whatsoever. If she has any intellectual honesty, she will admit that she was mistaken and disavow her despicable conclusion that the internments were justified on the basis of national security." It'll come as no surpise that I agree entirely. But I'm not holding my breath for the confession of error.
NINTH CIRCUIT PROBABLE CAUSE DECISION:
The Ninth Circuit issued an interesting ruling on whether the existence of records indicating that a suspect joined a child pornography website creates probable cause to search the suspect's home for illegal child pornography. I offer an analysis of the case for members of my computer crime update list here. My basic take: the court was probably right on the question of whether probable cause existed, although its analysis is a bit quirky.
Cathy Young on sex differences:
On a break from packing, I read Cathy Young's Reason Online review of Stephen E. Rhoads' Taking Sex Differences Seriously. I haven't read Rhoads' book, but I've generally found Young to be a sensible, thoughtful commentator on these subjects. Her review is definitely worth reading.
The War on Terrorism in the Courts:
Over at Begging to Differ, Venkat lists the anti-terrorism cases that DOJ has brought that somehow have ended up falling flat-- via acquittal, dismissal of charges, and the like. If you broaden the category to terrorism cases both charged and uncharged, you might add the case of Yaser Esam Hamdi, who it seems will soon be released. I am less sure than Venkat is about what to make of these cases. The nature of terrorism cases is that the public often only sees the tip of the iceberg, and there may be a lot more going on that we can't see but that would put things in a very different light. Still, the picture drawn by the public side of these cases is troubling.
Good and inexpensive restaurants right around Stanford:
Since Leslie and I will be around Stanford for three and a half months, we wanted to find some good and inexpensive restaurants that we could regularly go to and pick up from. We'd like to have a range from the hole in the wall Chinese/Thai/etc. where dinner can be $10/person or less (not counting tax, tip, and alcohol) to the moderately priced places where dinner can be up to $25/person or so. The fancier places we can probably find through Zagat and other sources.
Any suggestions? Please e-mail me at volokh at law.ucla.edu if you have some. Thanks!
RHETORIC AND REALITY. Thanks, as always, to Eugene for the invitation to guest-blog here again. It's always a pleasure.
Yesterday Eugene critiqued a letter I signed in which a group of historians and researchers (including me) complained of the decision made by many TV and radio shows to present, without opposition, Michelle Malkin's revisionist account of the Japanese American internment. (Malkin argues in her book "In Defense of Internment" that the eviction, removal, and detention of 112,000 people of Japanese ancestry in World War II were all justified by solid evidence of widespread espionage by Americans of Japanese ancestry both before and after Pearl Harbor. My (and historian Greg Robinson's) debunking of Malkin's revisionism is here.)
Eugene says that the phrasing of the letter "will likely sound to many like a guild guarding its professional turf against upstart competition, not a substantive critique that should make the media or viewers take notice." The problem, Eugene says, is that the letter buried [the lead—which is that Malkin's book gets history very wrong—]under a different lead that . . . frames the argument exactly the way that professional academics ought not frame it—at least if they want to persuade their lay readers."
I've thought about this a good bit since yesterday. I agree with Eugene's assessment of how many people are likely to read the first few sentences of the letter, especially those who come to the debate suspicious of academics in the first place. I wish I could go back in time and make some of Eugene's suggestions before I signed it.
But I don't regret signing it, even in the format in which it appears, because the letter points out something very important—something that Eugene's well-taken criticism of the rhetoric misses.
The premise of Eugene's criticism is that, in the controversy stirred by the publication of Malkin's book, "a substantive critique" actually has a chance of "mak[ing] the media or viewers take notice," and that it has a shot at reaching, let alone "persuading," some appreciable number of "lay readers."
Since Malkin published this book several weeks ago, she has presented her historical account of "vast networks of Japanese American spies"—unopposed—on probably a half-dozen prime time shows on cable television (Fox, MSNBC, CNBC, HBO, C-SPAN (although that one wasn't primetime)) and many, many national and local radio programs. On just two occasions, both of them on local radio (one in Philadelphia and one in North Carolina), I was invited to present an opposing view and did so. On a third occasion (also on local radio in Philadelphia), I was invited to present a response after Malkin spoke, but the show apparently thought better of it after hearing from Malkin for 15 minutes and hung up on me before giving me a chance to speak so that they could take "an important call from the Republican National Convention." (I wasn't in the listening area so I never learned who the caller was.)
The result of this one-sidedness is exchanges like this wrap-up exchange at the end of her interview yesterday on WPHT radio in Philadelphia:
Radio Host: The bottom line here, Michelle, is don't let your kids be taught that we did despicable things to the Japanese Americans during World War II, 'cause it ain't true.One might say, "Well, if you want to get the opposing views out there, you need to do more than gripe about it in some lame letter; you need to appeal directly to these shows to present an opposing view." But here's the thing: I (and others) have done just that. I have approached each and every radio and television show that has showcased Malkin for the last several weeks—in most instances (when I was able to learn of it) before Malkin's appearance—and made the substantive case that Malkin's book presents a history so false that it amounts to a smear on the reputation of an entire ethnic group (not to mention a brief for the mass internment of Arabs and Muslims). In not one instance has any show—radio or television—agreed to present an opposing view; they've just presented Malkin. (The two local radio shows on which I did appear approached me because their producers had seen my blog.)
And the book, as of last weekend, was at #31 on the New York Times bestseller list, and has hovered near the top of amazon.com's sales list for several weeks now.
So, while Eugene might deem Greg Robinson's and my substantive case that Malkin is wrong to be "a point that should be persuasive to media and to viewers, and that appeals to acknowledged media ethics," and that should lead the media to conclude "that at least some contrary voices should be called on to rebut her arguments," the fact is that it hasn't.
I know, I know: some are already itching to fire off an email to me telling me that I'm just jealous because Michelle Malkin's book is selling like hotcakes and being talked about on TV and radio while mine didn't and isn't. Please. Anybody who thinks my efforts of the last few weeks have been about selling books doesn't know me at all (and doesn't know my book). Amazon had two hardcover copies of my book left in stock 3 weeks ago, and—guess what!—it still has two hardcover copies of my book left.
This isn't about selling books, and it isn't about getting my handsome mug on TV or my mellifluous voice on the radio. It's about countering, in the only way I know how, the stunningly successful spread of false insinuations about the loyalty and conduct of a group of Americans I've come to know and care deeply about.
By the way, for those who are curious, I have assumed that the name "Historians' Committee for Fairness" is just a play on the "Fair Play Committee," an organization that formed at one of the ten Japanese American Relocation Centers to protest the government's program of eviction and incarceration. I don't know for sure, as I didn't organize the letter-writing effort. But I don't think it's anything more than that. Certainly it's not the name of a longstanding, established organization such as the American Association of University Professors or the Swift Boat Veterans for Truth.
Eric Muller guest-blogging again:
I'm glad to say that my fellow lawprof Eric Muller (IsThatLegal?) will be guest-blogging again today and tomorrow, while my family and I are packing up and driving up to Stanford, where I'll be visiting for the Fall Semester.
Wednesday, September 1, 2004
More on Soros, Hastert, and drugs:
How to make substantive criticism look like guarding professional turf:
Eric Muller (IsThatLegal?) posts an open letter to the media from various historians:
The historians may well be right in their criticisms of Malkin; I haven't been following the controversy closely enough to have an expert opinion. But it seems to me that they've framed their criticisms in a way that greatly weakens their argument.
What do they start with? They're professional researchers — good enough as it goes. Then they allege that Malkin isn't "objectiv[e]" and "fair" the way that professionsl are. Well, I certainly support objectivity and fairness, but my guess is that (1) many historians themselves are pretty biased; (2) a longstanding, and plausible, criticism of the very people who are likely to be sympathetic with Malkin is that many historians are indeed biased towards the Left; and (3) the media thrives on contentious presentations, where two partisans duke it out, either on the same show or over time. They think it makes for more interesting programming, and they think that it's quite fair. I doubt that supposedly objective historians will persuade them, or their viewers, otherwise.
But then, it seems to me, it gets worse: Malkin isn't a historian, and relied on research done by others. Well, the media publishes commentary by people who aren't professional academics, and who rely on research done by others, all the time. That's what columnists usually are. You might not get tenure in a history department if you rely on research done by others, but such reliance doesn't disqualify you from appearing in the media.
Nor, more importantly, does it make you wrong. And while not being a professional historian may make it more likely that you'll get some things wrong, it's hardly a guarantee of that — plus sometimes an outsider to a profession can indeed help puncture professional orthodoxy (though I suspect it happens less than outsiders might like). The same goes for peer review; even if peer review dramatically improves accuracy (maybe), the absence of peer review hardly proves inaccuracy. And in any event I'm pretty sure that the media and the public don't treat peer review with the reverence that professional scholars in peer-reviewed disciplines might. The not-a-historian/relied-on-others'-research/no-peer-review sentence will likely sound to many like a guild guarding its professional turf against upstart competition, not a substantive critique that should make the media or viewers take notice.
So the first four sentences, it seems to me, frame the issue entirely the wrong way (especially since the first sentence's reference to professionalism, which is unobjectionable on its own, ends up looking like more turf-guarding in light of the following sentences). And then the letter gets to the heart of the argument — the point that should be persuasive to media and to viewers, and that appeals to acknowledged media ethics: Malkin is wrong. Now that might persuade people that she ought not be trusted, and that at least some contrary voices should be called on to rebut her arguments. (The call for an apology to soothe hurt feelings seems to me to return to the unpersuasive, because it distracts from what's accurate to what's offensive, but at least it doesn't smack of trying to defend guild authority.)
That, it seems to me, is what the historians should have started with: They should have put their strongest argument — the claim of grave inaccuracy, and the reasonable call for an opportunity to respond — front and center. And then they should have stayed on that message, perhaps even beefing it up with more telling details.
Instead, they buried the lead. (Should they have taken their own advice and left this sort of writing to professional, credentialed journalists or press relations specialists? I don't think so, but at least I don't think they would have then made that mistake.) But worse, they buried it under a different lead that, it seems to me, frames the argument exactly the way that professional academics ought not frame it — at least if they want to persuade their lay readers. Perhaps I'm mistaken; I too am not a professional press relations or public relations expert, and I'm sure I have many blind spots myself when dealing with people who don't share my own profession's preconceptions. But my sense is that the historians really did err in their rhetoric here.
UPDATE: Clayton Cramer has more on this. I should also mention that, while Eric Muller posted the letter, and signed on to it, I doubt that he was the one who drafted it — among other things, I think he's too savvy about rhetoric to have framed it the way they did.
Shameful: Although the facts of the case are still unfolding, it looks like the three men prosecuted for being members of an Al Qaeda-affilliated sleeper cell in Michigan may not have been helping terrorists at all — and that prosecutors illegally withheld evidence tending to show that from the defense.
In one of the most significant setbacks for the Bush administration's war on terror, the Justice Department plans to ask a federal judge in Detroit to set aside the terrorism-related convictions of three Middle Eastern men last year, U.S. News has learned. Judge Gerald Rosen of the U.S. District Court is expected to honor the government's request, perhaps by week's end.
Yesterday was a very good day.
Much of my day was taken up with two long, fun, and very intellectually productive conversations.
I acquired the fancy new computer I'm getting to use for the duration of my fellowship over the next academic year-- my first flat-screen ever!
My wife and I got to meet the beautiful new Drezner baby.
It was a lovely low-70s clear summer day.
Tuesday, August 31, 2004
Federal Circuit on the DMCA: Today the Federal Circuit decided Chamberlain Croup v. Skylink Technologies, also known as "the garage door opener case," which considered several interesting and important questions about the scope of the DMCA. The Federal Circuit affirmed. From the opinion:
We conclude that 17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners. While such a rule of reason may create some uncertainty and consume some judicial resources, it is the only meaningful reading of the statute. Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products. See H.R. Rep. No. 105-551, at 26 (1998). The courts must adhere to the language that Congress enacted to determine how it attempted to achieve that balance.UPDATE: Ernest Miller blogs his thoughts on the case here.
U.K. bans car ads for showing gun:
Handguns, as I understand it, are indeed largely banned in the U.K.; but this wasn't an ad for handguns. (Even under U.S. law, which as I understand it is more speech-protective than are U.K. or European free speech norms, an advertisement for an illegal product is unprotected.) Rather, it was an ad that the government thought spread an idea -- handguns are "fun and cool" -- that the government disapproves of. So of course the solution is: ban it.
Thanks to Dan Gifford for the pointer.
Online poll screw-up
I've long declaimed against online polls, largely because they involve self-selected samples — that X% of the people who chose to participate voted in a particular way tells us next to nothing about what the public at large, or any other segment of the public at large, thinks.
But MSNBC has managed to come up with a poll that has a problem much less subtle than the one I describe above. Here's how the question is framed, I kid you not:
Yup, those are the only two options. The problem is so glaring that I have to assume it was an accident — but what an accident.
Thanks to Marty Lederman for the pointer.
UPDATE: Gil Milbauer reports that this has been fixed, and the choices are now "yes" and "no."
It's innuendo, but it's pretty repulsive innuendo (at least unless Dennis Hastert has something to back it up). From Fox News Sunday, Aug. 29, 2004:
Hastert's substantive criticisms of campaign finance may be legitimate -- but the suggestion that Soros might be getting money from illegal drug distributors, even as a hypothetical example, is pretty reprehensible. (Imagine that, say, Ted Kennedy said "I don't know where Swift Boat Veterans for Truth are getting their money, if it comes from overseas or from neo-Nazis"; I take it that we'd be pretty appalled, even if Kennedy was just giving a hypothetical example.) And while "drug groups" may be slightly ambiguous in other contexts, where it might refer to pro-drug legalization groups, in this context it pretty clearly does suggest drug criminals, partly because Hastert didn't deny the connection when Wallace raised it and partly because the pro-legalization groups are funded by Soros, not the other way around.
As Jesse Walker (Hit & Run) points out, illegal drug dealers are actually likely to oppose drug legalization rather than supporting it: "Drug prohibition acts as a price support and a barrier to entry; it helps the cartels maintain their market position. They're about as likely to fund a legalization campaign as they are to give Denny Hastert an all-expenses-paid vacation in Bermuda or -- as long as we're throwing around groundless insinuations -- a free sex tour in Thailand." But in any event, Hastert shouldn't be making such unsupported innuendos, whether they make economic sense or not.
Another Crime-Facilitating Speech controversy,
this time over IndyMedia's posting of delegates' "names, home addresses, e-mail addresses and the New York-area hotels where many are staying." The Secret Service is investigating.
I'm not sure whether such postings break any existing laws, or whether a law could indeed ban them consistently with the First Amendment. While such speech may indeed facilitate crime, it is also useful for legal and perhaps even constitutionally protected purposes, such as remonstrating with the delegates or demonstrating outside their hotels (or even their homes). See generally NAACP v. Claiborne Hardware (1982), which held that publishing the names of people who weren't complying with the boycott was constitutionally protected. (The speech in Claiborne didn't involve publishing addresses, but in a small county of about 10,000 people, knowing someone's name could pretty quickly get you his address.)
On the other hand, the Secret Service may be legitimately investigating to see whether any illegal conduct against the delegates is planned. Constitutionally protected speech may often trigger an investigation: This is most obvious after a crime is committed -- if Joe Schmoe is killed, and it turns out that I had earlier expressed the constitutionally protected opinion that he needed killing, the police could certainly investigate me more closely because of what I had said -- but I think it's equally true when the police are trying to prevent a crime. So it's hard to evaluate the investigation based on just the brief snippet that I saw reported.