Friday, October 31, 2008

The Andrew Sullivan Award for Way-Over-the-Top Blogging in Support of Obama

by a previously reasonable commentator goes to Joe Klein, who wrote the following in response to claims that Obama associate Rashid Khalidi is anti-Semitic: "I've never met Rashid Khalidi, but he is (a) Palestinian and therefore (b) a semite, so the charge of anti-semitism is fatuous." In other words, because Arabs are "semites" they can't be anti-Semitic.

(Aside: I have no reason to believe that Khalidi is anything but a non-anti-Semitic, but anti-Israel, Palestinian nationalist). Jeffrey Goldberg responds:

I want to be absolutely clear that I'm not about to accuse Joe of being an anti-Semite, but I will note that this the first time I've ever heard a Jewish person, or a non-anti-Semite, make this sort of malicious statement, one that perverts the universal meaning of a term in order to mock the phenomenon of Jew-hatred. "Jew-hatred" is actually my preferred term, because, as I'm sure Joe knows, "anti-Semitism" was a term invented by the avant-garde Jew-hater Wilhelm Marr, who was the founder, in 1879, of the League of Anti-Semites, which argued that Germans and Jews were locked in a death struggle for racial superiority. And we know where that ended.

Since Marr's time, of course, the term has evolved from a compliment to an insult, but its meaning has held steady all these years. As I said, the only people who insult Jews by denying the meaning of the term are, in my experience, anti-Semitic.

Goldberg is being properly charitable, but readers should recall that Joe Klein was last seen on this blog ranting about "Jewish neocons" allegedly pulling John McCain's strings on behalf of Israel. And, as Goldberg notes, "Joe derives great pleasure from criticizing Jewish supporters of the Iraq War — the Wolfowitzes, Perles and Feiths --in specifically Jewish terms, while never seeming to use the Christianity of other supporters of the war, including Bush, Cheney, Rumsfeld, Rice, Powell, and other such marginal figures, against them."

UPDATE: I have to disagree slightly with Goldberg, in that I do know of individuals who have repeated the "how dare Jews call an Arab anti-Semitic when Arabs are also Semites," line because of complete ignorance of the origins and typical uses of the term anti-Semite, combined with an absence of proper reasoning skills (even if "anti-Semitic," including Arabs, Arabs could be anti-Semitic, just as there are anti-Semitic Jews). Of course, it doesn't help Klein much to argue that he threw out this line out of a combination of ignorance, poor reasoning, and being too lazy to actually look up what "anti-Semitism" means.

And, as one commentator notes, Klein's line is analogous to saying, "Canadians can't be anti-American, because they are Americans, too."

FURTHER UPDATE: Klein has apologized for his "wordplay."

He then adds: while the term, antisemitism, will always retain its traditional meaning--anti-Jewishness--it does conflate certain categories: there are those who just hate Jews, and then there are those who merely disapprove of zionism...and a third category, those who accept the idea of a Jewish state, but disapprove of Israeli expansion into the West Bank and Gaza. People like Goldfarb--and far too many other Jewish neoconservatives--go around calling people like Rashidi antisemites when, in fact, they're merely opposed to the more egregious expansionist schemes favored by the some of the more extreme members of the Likud Party.
Yikes! First, the term "anti-Semitism" doesn't "conflate" anything, even if there are some people who use it to disparage people whose views on Israel they don't like. Second, what basis is there for claiming that obscure McCain spokesman Goldfard is a "neoconservative," as opposed to just a conservative Jew that Klein doesn't like? Third, and most important, the last part of this quote is laughable. Khalidi, from what I've read, was associated with the PLO at a time when its charter called for the destruction of Israel. It's true that almost all prominent Palestinian nationalists were affiliated in some way with the PLO at this time. But to conflate criticizing a Palestinian nationalist who thinks of the creation of Israel as the "Nakba" with criticism of someone "opposed to the more egregious expansionist schemes favored by some of the more extreme elements of the Likud Party" is absurd. You'd think from what Klein wrote that Khalidi is a Labor Party Zionist! So, while Klein is right to call Goldfarb to task for calling Khalidi an anti-Semite because he is anti-Israel, Klein is making the opposite mistake: suggesting that anyone who is NOT an anti-Semite must not be anti-Israel.


McCain Keeps His Pledge on Rev. Wright:

Here is McCain spokesman Michael Goldfarb just dying to bring up the Rev. Jeremiah Wright when asked whether Obama has any anti-Semitic connections, but adhering to McCain's order that Wright is off the table. (And, for the record, while there are reasons to be suspicious of Wright's attitudes toward Jews, including his closeness with Farrakhan and extreme hostility to Israel, I haven't seen any hard evidence that he's ever publicly crossed the line into anti-Semitism.) Exactly why McCain has been so resolute in refusing to use what strikes many people as not just a legitimate issue, but a strong issue for him, is an interesting question.


"Socialist" a Code Word for Black:

We all had a good chuckle a while back when an obscure columnist claimed that McCain-Palin's invocation of "socialist" to describe Obama's economic policies was a code word for black. Well, here are the less obscure John Judis of The New Republic and Matthew Yglesias of Think Progress saying more or less the same thing, in a more sophisticated way.

Look, it's reasonable to say that attacks on "welfare queens" or Willie Horton or inner city crime or whatnot can stir latent prejuice in voters, whether or not that was the intent of the attacker. But (and I say this as someone who has spent a good part of his academic career writing about the economics and the history of race in the U.S., and also someone who thinks it's silly to claim that Obama's policies are "socialist") "spreading the wealth" and "socialism" are so far removed from any racial subtext that I can't help but see pieces like this as attempts to silence any criticism of Obama by playing the race card, period. I should note that with very few exceptions it's been Obama's supporters, and not the Obama campaign, that's tended to try to find a racial subtext to any criticism of Obama, no matter how mundane.


"E-Mail Error Ends Up on Road Sign":

The BBC reports:

When officials asked for the Welsh translation of a road sign, they thought the reply was what they needed.

Unfortunately, the e-mail response to Swansea council said in Welsh: "I am not in the office at the moment. Please send any work to be translated".

So that was what went up under the English version which barred lorries from a road near a supermarket.

Thanks to Language Log for the pointer. Earlier this year, Language Log put up an even funnier instance of the same phenomenon.


No First Amendment Freedom from Criticism:

Gov. Palin uses the rhetoric of the "First Amendment" in a way that's not uncommon (see here if the download from the other location doesn't work), but that I think is quite mistaken:

[Q, host Chris Plante:] ... Is the news media doing its job? Are you getting a fair shake, the Republicans getting a fair shake, this year?

[Palin:] I don't think they are doing their job when they suggest that calling the candidate out on their record, their plans for this country, and their associations is mean-spirited, or negative campaigning. If they convince enough voters that that is negative campaigning for me to call Barack Obama out on his associations, then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media. Look at Joe the Plumber, good old Joe the Plumber in Toledo, Ohio, he just asked a simple, straightforward question, and the media started investigating and attacking him. So, you know, there is some fear there, and in those terms, no, I don't think that they've been doing their job in that kind of context.

I recognize that legal terms such as "First Amendment rights" are sometimes used loosely, including to refer to freedom from private retaliation against speakers. (The First Amendment itself applies only to government action, either directly or via the Fourteenth Amendment.) And sometimes this loose usage might not much interfere with the force of the argument, for instance, if someone complains about a private college's violating its students' First Amendments by expelling them for their speech.

But here the looser usage just doesn't make much sense. The media is "attack[ing]" Palin simply by exercising its own First Amendment rights to criticize Palin's statements. Likewise, Palin herself is exercising her First Amendment rights in criticizing Sen. Obama's exercise of his First Amendment right to freedom of political association (and just as critics of Obama's links with Rev. Wright criticized Obama's exercise of his First Amendment right to freedom of religious and political association). If the media's "attack[s]" on Palin jeopardize "our First Amendment rights," then Palin's criticism of Obama equally jeopardize his First Amendment rights.

The better view, I think, is that our First Amendment rights aren't much at issue in this discussion. Obama is exercising his First Amendment rights, Palin is exercising hers, the media is exercising its, and no-one's First Amendment rights are in jeopardy. If Palin wants to argue that her statements are being mislabeled as negative campaigning or as mean-spirited, or that negative campaigning is being improperly maligned (a view that I generally take myself), that's fine. But that requires a substantive defense, not just an appeal to First Amendment rights.

Thanks to Victor Steinbok for the pointer.


First Amendment Precludes "Ethnic Intimidation" Prosecution for Letters to Columnist:

I just got the text of an interesting and nearly unreported-on decision from an Ohio trial court. Michael Coon wrote three e-mails to Amjad Hussain, a Muslim columnist for the Toledo Blade, who was apparently born in Pakistan. (Hussain is a heart surgeon at the University of Toledo, where he has worked for over 30 years.) The e-mails were insulting, ranting, and vitriolically hostile to Muslims and, at times, Middle Easterners. But as I read them, they did not contain any overt threats to Hussein. Nor did the prosecution's brief point to any specific supposed threats, though it often spoke of Coon's "motive to harass, abuse, and threaten Dr. Hussain."

Nonetheless, Coon was prosecuted for telecommunications harassment, aggravated by its being ethnic intimidation. The prosecution seems to have at first argued that Coon violated 2917.21(A)(5) by communicating with Hussain after Hussain had told him to stop e-mailing him; but that line of reasoning was apparently dropped, seemingly because Hussain had never made such a demand personally (though apparently the Sheriff's Office did make such a demand, perhaps at Hussain's behest). The prosecution instead focused on 2917.21(B), which bars communicating with a person (via e-mail, phone, and the like) "with purpose to abuse, threaten, or harass another person."

The judge rejected this theory, on the grounds that "although angry and intolerant, read in context, the intent established is one of political discourse," and the speech was thus "protected political speech." I think the courts should go further, and conclude that otherwise protected speech — i.e., speech that doesn't fit within an exception such as that for true threats, or for fighting words — can't be punished even if a judge or jury finds that the speaker had the "purpose to abuse ... or harass." (Note that this speech can't be fighting words because it wasn't face-to-face, and was thus extremely unlikely to lead to an immediate fight between the target and the speaker. The fighting words exception is generally limited to such speech, because the justification of the exception is preventing such fights.) But at least the judge reached the right result, and perhaps this was the best the judge could do given the posture of the case.

I should add that I think a statute that generally lets people demand that others stop e-mailing them (perhaps with some exception for situations where the e-mail is necessary for some sorts of business or government service purposes), and punishes those who continue e-mailing after the demand is received, would indeed be constitutional. It would be much like the statute upheld as to traditional mail in Rowan v. U.S. Post Office Dep't (1970). And it would be justifiable because it would leave the writer free to correspond all he wants with willing or potentially willing readers, and only block communications to people who have clearly expressed their lack of interest in the writer's messages. It would also avoid (if properly drafted) courts deciding whether the speaker's intent was really "to abuse ... or harass" (both vague terms rife with the possibility of viewpoint discrimination in application) or to engage in "political discourse."

But the state's theory in this case was indeed focused on the statute barring abusive/harassing messages, and I'm glad that the court rejected that theory. I should add, by the way, that in my view the defense memorandum in this case struck me as much better written and argued than the prosecution memorandum (though I recognize that the prosecutor might not have had a lot of time to invest in his memorandum).


Anti-Semitic Ranting (and Other Ranting) in a Surprising Place:

The Vermont general election sample ballot, and in particular in the statement of Independent candidate Cris Ericson (see PDF p. 19).

Vermont law provides that the Secretary of State must include a candidate's statement with no editing or screening, and I think that's the right approach; I don't mean to suggest there's anything wrong with the government's action here, especially since there's a disclaimer to this effect at the bottom of each page. Still, it struck me as a worthwhile reminder of some of the sort of thinking that's out there. Thanks to Religion Clause for the pointer.


Obama in 1990 on Affirmative Action:

No surprise: he's for it. And just to be clear, when Obama defends affirmative action, he is defending, specifically, decisions that rely on race as the decisive factor, what some call "racial preferences":

The [Harvard Law Review] Selection Committee first identifies the group of candidates whose excellent performance, either in the classroom or on the writing competition, sets them apart.... The Selection Committee must then choose the remaining editors from a pool of qualified candidates whose grades or writing competition scores do not significantly [whatever that means-ed.] differ. It is at this stage that the Law Review as for several years instituted an affirmative action policy for historically underrepresented groups: out of this pool, the Selection Committee may take race or physical handicap into account in making their final decision.

Again, no surprise, given that it's been reported that at rally for faculty "diversity," Obama compared Prof. Derrick Bell, who was pressing the law school to immediately hire an African-American woman, to Rosa Parks (because being subjected to brutal racism in Alabama in the 1950s is just like being a tenured Harvard Law School professor in 1990?). Still, interesting to see Obama's own words.

Obama also notes that he was likely a beneficiary of affirmative action preferences during his academic career. I know some Obama-haters are inclined to use this against him, but, in fact, given his successes ever since, Obama would more likely be the poster child in favor of affirmative action.


Knowledge and the Rationality of Voting:

Co-Conspirator Eric Posner challenges my argument that it might be rational to vote. He argues that there is little reason to do so because, in the unlikely event that your vote really will break a tie, that probably means that the two candidates were of virtually equal quality:

[B]reaking a tie is beneficial only if your vote is more likely correct than not—that is, you actually vote for the better candidate. Surely your vote is more likely to be correct than not? After all, you have some information, and that means you are doing better than flipping a coin. However, you need to reflect on your own ignorance with some humility. If, by hypothesis, your vote breaks a tie, then it means that (putting aside the vagaries of the electoral system) half the country prefers one candidate and the other half prefers the other. If all of these people have enough information that their votes are not random, the existence of a tie (aside from your vote) indicates that the two candidates are almost exactly equal in quality. The probability that your own puny knowledge (elsewhere in the same article Ilya discusses the problem of rational ignorance—people have weak incentives to inform themselves about the candidates and policy in general) will distinguish the infinitesimally better candidate is itself infinitesimal.

The problem with Eric's argument is the assumption that if the other people's votes are not random, that necessarily means that they are - on average - well-informed, or at least more likely to be correct than mistaken. However, lots of research, such as Bryan Caplan's recent book, and my own article that Eric links to, suggests that voters often make systematic errors where "mistaken" votes for one side are not offset by an equal number of mistakes favoring the other. Thus, if your fellow citizens are equally divided in their voting preferences and are voting nonrandomly, that doesn't necessarily mean that the two candidates are nearly identical in quality. It could be that the weaker of the two is benefiting from systematic flaws in voters' evaluation of the information they have. So my argument for voting in cases where you think there is a big difference in quality between the two candidates still holds true.

Obviously, Eric is right to counsel "humility" in assessing one's own ignorance. If your knowledge is much less than that of the average voter, that may be a consideration in favor of staying home. But if it is equal or greater, then you have a good case for casting a vote if you think there is a substantial difference in quality between the available alternatives. That is especially true once you consider the possibility that you might have underestimated the quality difference in favor of your preferred candidate, a scenario that to some degree counterbalances the chance that you have overestimated.


Great Firewall of Australia? (Great E-Barrier Reef?)

I blogged about this four years ago, back when it was just an early proposal, but now it seems to be officially recommended by the Australian government:

AUSTRALIA will join China in implementing mandatory censoring of the internet under plans put forward by the Federal Government....

The government has declared it will not let internet users opt out of the proposed national internet filter....

Communications minister Stephen Conroy ... said trials were yet to be carried out, but "we are talking about mandatory blocking, where possible, of illegal material."

The net nanny proposal was originally going to allow Australians who wanted uncensored access to the web the option of contacting their internet service provider to be excluded from the service....

The minister's statements are in this transcript (see around PDF p. 80); here's a particularly interesting exchange:

Senator LUDLAM -- I will take you back to the chair, but can you just tell me whether, in terms of discussing finishing up where we started, who is going to be determining what is on these black lists. Is that a question to you, Minister, to the department, to the AFP [Australian Federal Police] or to ACMA [Austrialian Communications and Media Authority]?

Senator Conroy -- As I said, we are enforcing current law and ACMA determine this based on the existing law. So we are happy to have a chat with them. I think they are coming up next as you have indicated, so you can have a chat with them about how they go about determining it. But the general sort of stuff that we are talking about is child porn and they are the sorts of sites that we are targeting. We do not believe that you should be able to opt in to child porn. I am sure you do not either.

Senator LUDLAM -- What about, for another controversial example, euthanasia related material?

Senator Conroy -- You would have to ask them whether that falls within their definition. There are calls for, as an example, banning pro anorexia websites. Again, it falls into that sort of category. So there are calls for a whole range of material to be included in the black list, but I do not think that they fall inside the existing definitions under the law. I do not think that they are caught.

Senator LUDLAM -- Can you then see the basis on which some people might be raising concerns that once we have such a list it can go from being a black list to a very grey list very quickly, depending on how much the government thinks should be filtered. It is almost reversing the burden of proof, which is a very different approach to sending law enforcement agencies after people who are posting—

Senator Conroy -- I do not agree with the basis of your assertion that we have—

Senator LUDLAM -- You have not heard the assertion.

Senator Conroy -- You said it basically reverses the onus of proof. I do not agree.

Mr Rizvi [Deputy Secretary, Broadcasting, Regional Strategy, Digital Economy and Corporate] -- The ACMA black list has been around for quite a number of years now. It is not a new list.

Senator LUDLAM -- I suppose what is new is having complicated automated software deciding what Australians can and cannot see on the net. The black list, as the minister is rightly pointing out, can become very grey depending on how expansive the list becomes -- euthanasia material, politically related material, material about anorexia. There is a lot of distasteful stuff on the internet.

Senator Conroy -- Existing provisions under the Broadcasting Services Act 1992 are able to deal with suicide related material that provides detailed instruction or promotion of matters of crime or violence. It is an existing law....

Senator Conroy -- ... You might want to ask for the interpretation of that [the sentence quoted right above -EV] when ACMA comes to the table. That is the existing law. If you want to argue for changes in the existing law around euthanasia—I know many have—then that is a worthy debate and we should have it.

Senator LUDLAM -- Probably not here. That was not the point, I suppose. It is just an example of that kind of grey area. I believe with a few minutes online you could probably find that kind of material whether it has been declared illegal in Australia or not. Is it the intention of the government to have that material become unavailable?

Senator Conroy -- We would be enforcing the existing laws. If investigated material is found to be prohibited content then ACMA may order it to be taken down if it is hosted in Australia. They are the existing laws at the moment.

As I argued before, it seems to me quite likely that once government-mandated nationwide filtering is imposed on one sort of content, there'd be considerable pressure to extend it. After all, we already mandate provider-based filtering of child pornography, and this is just a small extra step, since it's only going after illegal material.

True, the filtering may be overinclusive, because it will inevitably block even some material that, on closer examination, would have proved to be constitutionally protected. But we've already crossed that bridge in the earlier proposal, haven't we? So why not take this a step further? The slippery slope is a real phenomenon, in legal and political systems that are heavily influenced by notions of precedent and logical consistency.

Now perhaps the bottom of the slippery slope isn't that scary. Maybe service providers, in Australia or America, should automatically block access to sites that private filter companies -- or the government -- has decided contain illegal hard-core porn, child pornography, copyright-infringing material, libelous statements, statements that express hostility based on race, religion, or sexual orientation (at least when accessed from those Western countries that outlaw such statements), copies of the "Hit Man" murder manual or the Anarchist's Cookbook, and the like. Rather than requiring trials to decide whether each site contains illegal information, a process that would be so cumbersome that it would keep the regulatory schemes from working effectively, we should just have providers instantly block access to any site that some government agency has decided is indeed illegal. Much more efficient, indeed perhaps the only efficient way of effectively shielding Australia and America from potentially harmful off-shore speech.

In my view, such a solution, efficient as it may be, would nonetheless be wrongheaded; and under U.S. law, it would be an unconstitutional prior restraint, since it would involve the government mandating the blocking of potentially protected speech before a final court judgment that the speech is indeed unprotected. But in any event, we should recognize that it's quite likely that any filtering proposal -- even one pitched as being aimed at child pornography -- will indeed end up being quite broad. And we should evaluate such proposals with an eye towards these long-term consequences, and not just their initial scope.


The Election and the Appellate Courts:

I have an article up on NRO this morning examining the potential implications of the Presidential election on the composition of the federal appellate courts. In it, I suggest that the next President is likely to have a greater effect on the federal appellate courts than on the U.S. Supreme Court, particularly if Barack Obama occupies the Oval Office.

Right now, just over one-third of active judges on the U.S. Courts of Appeals were nominated by President Bush, and just over one-half were nominees of a Republican President. This is what one would expect given that Bush has been in office for eight years, and that Republicans have occupied the White House for 20 of the past 30 years. Yet given the courts' composition, it is possible that a President Obama could select nearly a third of the appellate judiciary in just his first term. A President McCain, on the other hand, would be somewhat limited in his ability to expand the percentage of Republican nominees (particularly those who would be considered "conservative") because of Democratic control of the Senate.


Which Obama Would America Get?:

A thoughtful piece by Stuart Taylor:

When John McCain and many other Republicans ask, "Who is the real Barack Obama?" there is an implication that maybe he is somehow sinister or extremist.

I don't believe that. But I do think that there are two very different Obamas. Both are extraordinarily intelligent, serene under pressure, and driven by an admirable social conscience -- albeit as willing to deploy deception as the next politician. But while the first Obama would be a well-meaning failure, the second could become a great president.


Should the Rational Public-Spirited Person Vote?

Ilya says yes, drawing on this very interesting article of his. Here is his explanation (inspired by Derek Parfit):

Assume that Uv = the expected utility of voting; Cv = the cost of voting; and D = the expected difference in welfare per person if the voter’s preferred candidate defeats her opponent. Let us further assume that this is a presidential election in a nation with 300 million people; that the voter’s ballot has only a 1 in 100 million chance of being decisive (Riker and Ordeshook 1968); and that the voter values the welfare of his fellow citizens an average of 1000 times less than his own. Thus, we get the following equation:

D*(300 million/1000)/(100 million) – Cv = Uv.

If we assume that Cv is $10 (a reasonable proxy for the cost of voting) and that D is $5000 (this can incorporate monetary equivalents of noneconomic benefits as well as actual income increases), then Uv equals $5, a small but real positive expected utility.

If you care about the well-being of others, even a little bit, you should vote, despite the cost of voting. The reason is that the cost of voting is very low, while the benefit is not as low as you might think. Although your chance of breaking a tie is very low, the benefit from breaking a tie is very high—it’s felt by 300 million people. This multiplier effect offsets, to some extent, the very small chance that your vote will make a difference.

However, breaking a tie is beneficial only if your vote is more likely correct than not—that is, you actually vote for the better candidate. Surely your vote is more likely to be correct than not? After all, you have some information, and that means you are doing better than flipping a coin. However, you need to reflect on your own ignorance with some humility. If, by hypothesis, your vote breaks a tie, then it means that (putting aside the vagaries of the electoral system) half the country prefers one candidate and the other half prefers the other. If all of these people have enough information that their votes are not random, the existence of a tie (aside from your vote) indicates that the two candidates are almost exactly equal in quality. The probability that your own puny knowledge (elsewhere in the same article Ilya discusses the problem of rational ignorance—people have weak incentives to inform themselves about the candidates and policy in general) will distinguish the infinitesimally better candidate is itself infinitesimal.

In other words, D, the expected difference in welfare per person if the voter’s preferred candidate defeats her opponent, is not realistically $5,000; more realistically it is in the range of $0.000000005. Using the equation above, your expected utility from voting is a shade higher than negative ten dollars. Ilya, stay home!


Why I Won't Abstain or Vote for the Libertarian Party:

Two possible alternatives to voting for McCain or Obama are abstaining from voting and supporting Libertarian Party candidate Bob Barr. Many people believe that voting is irrational because the chance that your vote will influence the outcome is infinitesmally small. I think this logic is incorrect, for reasons I discuss in detail in the first part of this article. To briefly summarize my argument, I contend that voting is rational so long as 1) the cost of voting is low, 2) you care at least slightly about your fellow citizens as well as yourself, and 3) you believe that there is a significant difference between the rival candidates. The low probability of your vote being decisive is balanced by the enormous benefits that will accrue if it is. I'm no paragon of civic virtue; but I do care about the future of the country as well as my own. And I also believe that the cost of voting is low and that there is a substantial difference between Obama and McCain, even though I have serious reservations about both. Thus, it will be rational for me to vote in the 2008 election.

As for the Libertarian Party, back in 2006 I wrote a post entitled "Why the Libertarian Party is Bad for Libertarianism." I still endorse the argument I made there. Readers interested in my thoughts on the LP may want to check out that post.


Thursday, October 30, 2008

A Vote for Divided Government:

My belief that John McCain is the lesser of the available evils in this election is largely based on the advantages of divided government. As I have explained in the past, divided government places important constraints on the growth of the state. Congress is more likely to increase federal regulation and spending if the president who gets to do the regulating and spending belongs to their own party. The president is less likely to veto or oppose congressional extensions of government power if those extensions are produced by his own partisan allies. Libertarians justly complain about the vast growth of government under George W. Bush; but that growth was largely a product of Republican united government from 2001 to 2006.

If Obama wins, he will have a strong Democratic majority in both houses of Congress to work with. This state of affairs is likely to lead to a significant expansion of government even in the best of times. However, now is clearly not the best of times. It is a time of economic crisis. And economic crises are also excellent opportunities to expand the powers of government - opportunities that politicians rarely let slip.

Obama's ideological orientation also plays a role in my thinking. While I believe that his foremost objective is to get elected and reelected, I think he's also an ideological big government liberal. His record in Congress and in Illinois reflect that. Obama might be willing to set aside ideology for the sake of political self-interest if the two conflict. But if he takes office at a time of crisis with large Democratic majorities in both houses of Congress, there won't be any such conflict between political self-interest and his big government instincts. The two will in fact be mutually reinforcing.

Once enacted, extensions of government power are very difficult to reverse, even long after the crisis that allegedly justified them has passed. For example, we are still saddled with the perverse system of farm subsidies and price cartels established by the Depression-era Agricultural Adjustment Act.

The combination of united government, economic crisis, and a president with big government instincts is likely to produce a major, permanent expansion of federal power.

Whatever his other flaws, McCain's election is likely to impede this process, at least to some extent. Moreover, although McCain has some statist tendencies of his own, he does have a pro-market side as well. He is pro-free trade, he was one of only a handful of GOP senators to vote against Bush's 2003 prescription drug plan (the biggest new government program since the 1960s), and he has called for a freeze on most domestic spending and for limits on the growth of entitlements. McCain also deserves a measure of libertarian credit for supporting expanded immigration in the face of opposition by many conservatives. As co-conspirator David Bernstein points out, McCain is also likely to appoint judges who are more sympathetic to libertarian positions than any we could hope for from Obama. On all of these issues except for immigration, Obama is far more statist than McCain. And there are few if any countervailing examples where Obama is more libertarian than his opponent (perhaps electronic surveillance is a rare exception, though Obama's position on that issue is muddled).

That is not to deny that McCain has many flaws from a libertarian point of view. Some of these, however, might be restrained by divided government. For example, like George Will, I worry about McCain's impulsive temperament. However, it will to some extent be offset by a strongly Democratic Congress. Left to his own devices, for example, McCain might be too eager to attack Iran in order to forestall their efforts to acquire nuclear weapons. But McCain is a smart enough politician to know that it is politically dangerous for a president to start a major conflict without strong congressional support. Thus, a President McCain will not attack Iran unless he gets backing from congressional Democrats. And, after the Iraq experience, the latter are unlikely to give it to him unless he presents an exceptionally strong case for action.

McCain still has numerous shortcomings. Just consider his positions on issues like campaign finance, national service, and the bailout, among many others. It's possible that I would prefer Obama to him if the latter came to power during a time of optimism and was constrained by a hostile Republican Congress, as Bill Clinton was. I might also prefer a Democratic victory if that party were likely to follow the centrist, market-friendly policies that characterized Clinton's last six years in office. In the current environment, however, that is highly unlikely. McCain is seriously flawed; Obama and a united Democratic government are likely to be significantly worse.

UPDATE: Readers may be interested to know that my support for divided government is not of recent vintage, and cuts both ways. Back in 2006, I argued in this series of posts that it would be good for the country if the Democrats retook control of the House of Representatives.


The Libertarian Vote:

In past election cycles, I really haven't had a strong preference among the candidates. I voted for the Bernstein/Bernstein ticket in 2004, and can't really remember who I voted for, or for that matter whether I voted, from 1988 to 2000. But I'm much more of a Republican partisan this time, for a few reasons:

(1) Libertarians have been heavily involved in some of the most important constitutional Supreme Court litigation of the last two decades, either in terms of bringing the case, being among the most important advocates of one side's constitutional theory, or both. Among the cases in this category are Lopez, Morrison, Boy Scouts v. Dale, U.S. Term Limits, Grutter, Gratz, Kelo, Raich, Heller, and probably a few more that I'm not thinking of offhand. With the minor exception of Justice Breyers' vote in Gratz, in each of these cases, the ONLY votes the libertarian side received were from Republican appointees, and all of the Democrat appointees, plus the more liberal Republican appointees, ALWAYS voted against the libertarian side. The latter did so even in cases in which their political preferences were either irrelevant (Term Limits), or should have led them to sympathize with the plaintiff (Lopez, Kelo, Raich).

The only exception to this pattern is Lawrence v. Texas, in which Justice Kennedy seems to have been influenced by the Cato Institute's brief. But if the liberals had been able to muster five votes without Kennedy, I'm sure the opinion would have been quite different, less libertarian and more about "tiers of scrutiny" and whatnot. I'm a law professor, teach constitutional law, and the subject is dear to my heart. I'd much rather have the side that tends to take my ideological compatriots' constitutional arguments seriously on the Court. And Raich and Kelo, respectively, suggest that the liberals on the Court not only don't take libertarian arguments seriously, they don't believe in (a) any limits in federal regulatory power, whatsoever; or in (b) property rights, even when big corporations are using the political process to screw over the little guy.

(2) I'm not exactly a huge McCain fan. Indeed, other than Huckabee, he was probably my least-favorite choice in the Republican field. But as things have turned out, and despite some absurd, statist, campaign planks, in the home stretch he's running the most rhetorically libertarian presidential campaign I can remember since Reagan's 1980 campaign. Every time I hear a clip on the news, he's denouncing Obama for being a big spender and a taxer. He pledges to freeze most federal spending, and to take on entitlements and the grotesque reverse Robin Hood farm programs that Obama and almost all Congressional Democrats support. If he pulls out a victory, it will be seen as a stunning come from behind victory for those ideas. If he loses, and especially if loses badly, it will look like Americans are okay with "spreading the wealth."

(3) I think there are two great moral issues in American politics today, the disastrous War on Drugs, and free trade. The War on Drugs, for now, is hopeless. Free trade though, is not. Over the past couple of decades, a (statistical) billion people, more or less, have moved from poverty to the local middle-class because of globalization and free trade, far more people than have been aided by all the liberal do-goodism Obama, or any else, has or can muster. McCain is the candidate of free trade; Obama is the candidate of "fair trade," which in practice means protectionism. McCain's policies have the potential to rescue tens of millions of additional people from poverty, who will stay mired there under Obama. (And I always had at least one soft spot for Bill Clinton, for standing up to the unions and the know nothing wing of his party in favor of free trade and NAFTA).

(4) Nancy Pelosi. Harry Reid. Filibuster-proof majority. 'nuff said.

(5) I really still don't have any idea of what Obama is about. Is he the moderate, utilitarian, empiricist that Cass Sunstein raves about? Or is really quite far to the left ideologically, as various aspects of his biography suggest, but just skilled at hiding it for electoral advantage, with his very steady, moderate personality serving as a mask? The last thing the U.S. needs is a left-wing Ronald Reagan, but that might well be what we get.


Lori Drew Update: The St. Louis Post Dispatch has this update on proceedings today in the Lori Drew case.

Federal Circuit Rethinks Scope of Patentability: The Federal Circuit has handed down its much-awaited en banc decision in In Re Bilski on the scope of patentability. This is a huge case for patent law. Based on a very quick skim, I think the CAFC got it right. For a summary of the new case, check out this post at Patently-O.

Former Obama Speechwriter Will Vote for McCain-Palin:

A former Obama speechwriter says why she is voting for McCain on The Daily Beast--which apparently specializes in defection confessionals:

The final straw came the other week when Samuel Joseph Wurzelbacher (a.k.a Joe the Plumber) asked a question about higher taxes for small businesses. Instead of celebrating his aspirations, they were mocked. He wasn’t “a real plumber,” and “They’re fighting for Joe the Hedge-Fund manager,” and the patronizing, “I’ve got nothing but love for Joe the Plumber.”

As the nation slouches toward disaster, the level of political discourse is unworthy of this moment in history. We have Republicans raising Ayers and Democrats fostering ageism with “erratic” and jokes about Depends. Sexism. Racism. Ageism and maybe some Socialism have all made their ugly cameos in election 2008. It’s not inspiring. Perhaps this is why I found the initial mocking of Joe so offensive and I realized an old line applied: “I didn’t leave the Democratic Party; the Democratic Party left me.”

The party I believed in wouldn’t look down on working people under any circumstance. And Joe the Plumber is right. This is the absolutely worst time to raise taxes on anyone: the rich, the middle class, the poor, small businesses and corporations.

Our economy is in the tank for many complicated reasons, especially because people don’t have enough money. So let them keep it. Let businesses keep it so they can create jobs and stay here and weather this storm. And yet, the Democratic ideology remains the same. Our approach to problems—big government solutions paid for by taxing the rich and big and smaller companies—is just as tired and out of date as trickle down economics. How about a novel approach that simply finds a sane way to stop the bleeding?

She also defends Sarah Palin:

Governor Palin and I don’t agree on a lot of things, mostly social issues. But I have grown to appreciate the Governor. I was one of those initial skeptics and would laugh at the pictures. Not anymore. When someone takes on a corrupt political machine and a sitting governor, that is not done by someone with a low I.Q. or a moral core made of tissue paper. When someone fights her way to get scholarships and work her way through college even in a jagged line, that shows determination and humility you can’t learn from reading Reinhold Niebuhr. When a mother brings her son with special needs onto the national stage with love, honesty, and pride, that gives hope to families like mine as my older brother lives with a mental disability. And when someone can sit on a stage during the Sarah Palin rap on Saturday Night Live, put her hands in the air and watch someone in a moose costume get shot—that’s a sign of both humor and humanity.

Has she made mistakes? Of course, she’s human too. But the attention paid to her mistakes has been unprecedented compared to Senator Obama’s “57 states” remarks or Senator Biden using a version of the Samuel Johnson quote, “There’s nothing like a hanging in the morning to focus a man’s thoughts.”

As for Palin, Fred Barnes has an interesting article that compares the opinions of those who have actually met Palin (who are generally quite impressed by her ability and smarts) with the views who have never actually met her (Brooks, Noonan, etc.). Not that the mere inconvenience that they've never actually met her holds them back from dismissing her intelligence and ability. On the other hand, I suspect that the feeling is mutual. HT: Libertarian Republican


Key Second Amendment races in 2008:

My article today for National Review Online examines every Governor and U.S. Senate race, and the top 50 U.S. House races, to see which races have important implications for the Second Amendment, and which do not. Bottom line: the worst case scenario is a loss of 7 pro-Second Amendment votes in the Senate, and 26 in the House. The good news is that things could be a lot worse without the many pro-RKBA Democrats who are running. On Tuesday night, Florida and New York will be the most important states to watch for House races.


No Guns for You, You're an Old Woman,

plus an apparent violation of Delaware law barring the long-term keeping of gun purchase records:

Delaware State Police stopped Alvina Vansickle from purchasing a .22-caliber pistol for self-defense because she was too old and a woman, said Superintendent Col. Thomas MacLeish.

The outrage that followed led to the revelation that Delaware State Police had been keeping lists of gun buyers for years; state law requires them to destroy these records after 60 days....

An employee in the state police Firearms Transaction Approval Program noticed Vansickle's age and gender, and brought the sale to an immediate halt.

Vansickle's application was then routed to Sgt. Benjamin Nefosky, who heads the firearms approval unit.

According to MacLeish, the transaction was halted over concerns "based upon age and gender." ...

MacLeish said the initial call taker "was concerned this individual never purchased a weapon before. Age and gender caused her to take caution." ...

"I believe there was caution taken on behalf of the call taker," he said. "It was done without malice."

Vansickle's purchase was eventually approved -- 10 days after the initial application -- after she and the dealer were interviewed by police about the purchase. A normal delay is three days....

Story over this incident led to the revelation that the police had "searched seven years of firearms transaction records to see if Vansickle had ever bought a gun before"; according to the article, Delaware law requires that gun purchase records not be kept anywhere near that long, though I have no independent knowledge about that. Col. MacLeish is quoted as saying that "Our review of our electronic records indicated we had a glitch in the system, back to August 2005 .... They have since been purged."

Thanks to John Hackathorn for the pointer.


Don't Fear the Fairness Doctrine:

Jesse Walker thinks that re-imposition of the Fairness Doctrine is highly unlikely, even under an Obama presidency. Alas, he thinks there are many other things to worry about:

First the good news: The fairness doctrine is still dead, and it probably will stay dead even if Barack Obama becomes president. . . .

On June 25, in a savvy political move, his press secretary sent an email to the industry journal Broadcasting & Cable. Deftly deflating the scare, the secretary stated flatly that "Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters."

Now the bad news. There's a host of other broadcast regulations that Obama has not foresworn. In the worst-case scenario, they suggest a world where the FCC creates intrusive new rules by fiat, meddles more with the content of stations' programs, and uses the pending extensions of broadband access as an opportunity to put its paws on the Internet. At a time when cultural production has been exploding, fueled by increasingly diverse and participatory new media, we would be stepping back toward the days when the broadcast media were a centralized and cozy public-private partnership.


How Should Libertarians Vote?

It's a good question. Like many, I am quite disappointed by Republicans and no big fan of John McCain, but also quite concerned about the combination of an Obama presidency with large Democratic majorities in Congress. I fear the result will be a significant increase in taxes, spending, and economic regulation, with little offsetting decrease in government nannyism or regulation of social mores. I am also particularly concerned about a potential Obama Administration's trade policies and judicial nominations.

Richard Epstein echoes some of my concerns in this Reason symposium on Obama:

The Obama campaign is rich in contradictions for those who approach politics as defenders of strong property rights and limited government. On the positive side, I applaud Obama for showing a willingness to improve the procedural protections afforded to persons detained at Guantanamo Bay, and to cut back on the hostility toward immigration into the United States. And I hope that on key matters of race relations, he would be able to defuse many lingering historical resentments.

Unfortunately, on the full range of economic issues, both large and small, I fear that his policies, earnestly advanced, are a throwback to the worst of the Depression-era, big-government policies. Libertarians in general favor flat and low taxes, free trade, and unregulated labor markets. Obama is on the wrong side of all these issues. He adopts a warmed-over vision of the New Deal corporatist state with high taxation, major trade barriers, and massive interference in labor markets. He is also unrepentant in his support of farm subsidies and a vast expansion of the government role in health care. Each of these reforms, taken separately, expands the power of government over our lives. Their cumulative impact could be devastating.

My friends at the University of Chicago pooh-pooh my anxieties. They insist Obama will be a "pragmatic" president whose intelligent economic advisers will steer him far from the brink of this regulatory folly. His liberal Senate voting record leaves me no confidence in their cheery view. I wish he would back off publicly from these unwise policies. I would be thrilled if he supported dismantling even one government regulatory program. But he is, unfortunately, a prisoner of our times. The large back story of this campaign is that both parties have abandoned any consistent defense of limited government.

Relatedly, the staff and friends of Reason reveal their individual voting preferences here. Some of the answers are squirrelly or indeterminate, but Barack Obama was the clear winner with a plurality of the votes. Bob Barr came in second, followed by "not voting" (because it's irrational). John McCain barely tallied 10 percent of those polled.

By comparison, Obama wins overwhelmingly among a poll of the folks at the decidedly less-libertarian Slate. In that crowd, McCain and Barr only get one vote apiece from the 58 who are eligible, with Obama capturing the rest. I'll post the results from the NYT staff poll when it is available.


Voting for the Party, not for the Candidate:

I blogged about this five years ago, but reader Dilan Esper suggested I repost it; so here it is, with a few small changes:

Many people are opposed to “party line” voting (by which I mean voting in partisan general elections based almost entirely on candidates’ party affiliation, rather than focusing more on each candidate’s own particular politics or character). Such party line voting, they argue, shows laziness, stereotyping, or lack of independence. I, on the other hand, think that in most situations voting for the party and not for the candidate is the most sensible approach. A few words on why.

1. Elections of legislators (federal or state). Which particular people are in the legislature definitely matters — but which party has a legislative majority matters far more. Legislative power is generally exercised by organized legislative party blocs, not by individual representatives who make up their own minds.

I generally think the country would be better off if the Republicans (for all their warts) are in control than if the Democrats are. So if I and those like me vote for a Democratic candidate over a Republican because we think that this particular Democrat is better (smarter, more honest, or even more in agreement with us on many issues, despite his party affiliation), and this candidate’s election ends up giving Democrats control of the relevant legislative chamber, then we’ve hurt the causes that we favor: By electing this candidate, whom we like, we’ve essentially elected a party that we dislike. And even if the candidate breaks with the party in some cases (which may be part of why we voted for him), in most situations — both when voting on legislation, and, as importantly, voting on whom to put on various legislative committees and the like — he’ll follow party discipline.

2. Elections of Presidents and governors. Presidents and governors ostensibly exercise executive power by themselves, so I may well imagine that an honest, smart Democrat may do a better job than a dishonest, dumb Republican.

But in reality, electing a President or governor also means electing his party, and not just him. First, he’ll probably select a cabinet that’s drawn from a wide chunk of his own party (since, among other things, he needs to maintain good relations with the party faithful). He may well appoint some judges that he might not much like, but that help cement relations with various wings of his party. And a Democratic President may let a Democratic Congress get its way on more issues (even ones on which he doesn’t fully agree with them), or may block the Republican Congress’s proposals (even ones which he doesn’t much disagree with), because that’s what his party base will want. (Naturally, all this applies equally to Republican Presidents.)

This suggests to me that one should basically ask “Which party do I want to see in power?,” and then vote for candidates of that party nearly all the time — because you are in effect electing a party, more than you are electing a person. There are, of course, some exceptions (“Intentionally voting for split government” is one that I’ve heard most talked about this year):

A. The truly awful candidates. Some candidates are so bad — either so personally dishonest or corrupt, or so far from your own views — that you might refuse to vote for them, even if you generally support their party. First, you might just feel that you can’t endorse this person. Second, even if your view is purely instrumental, you might think that it’s better for your party if this member of the party is defeated than if he wins. I’d have voted against David Duke in Louisiana for both of those reasons.

B. Trying to affect the position of your own preferred party. In some situations, you might feel more strongly about sending a message to the leadership of your preferred party than you do about winning this particular election. I take it that this is what some (though not all) Nader voters who otherwise preferred Democrats were thinking in 2000, as were some Libertarian voters who otherwise preferred Republicans. I think this is a dangerous game to play, but if that’s what you’re self-consciously trying to do, then I can see why you’d vote against your otherwise preferred party. Again, though, the focus should be on which party you want to elect, and not whether you think this particular candidate is a better person than the other one.

C. Nonpartisan elections and primaries. Naturally, none of this applies to nonpartisan elections or to primaries where you’re choosing from several candidates within the same party.

D. Intentionally voting for split government. You might conclude that it’s better for the country if control of the House, Senate, and the Presidency are split; if that’s so, then you might intentionally vote for one party in one race and another in another.

E. Mixed preferences for a major party and a third party. You might want to vote Republican if the election is close and your vote might matter to the outcome (see item I below on that), but Libertarian if the election isn’t close and you want to express support for Libertarians; likewise for Democrats and Greens and similar combinations. But this too is a reflection of the core strategic principle, which is usually “vote for the party, not for the candidate.”

F. Different preferences at different levels of government. My suggestion that you should choose your preferred party operates at each level of government; you might, for instance, conclude that you want the Republicans to run the country, but you want the Democrats to run the state government of your own state. That’s consistent with my general theory. (Who controls the states may affect who controls the federal government, and vice versa, but the effect is weak enough that supporting different parties at different levels may make sense.) I would just say that you should then vote for Republican candidates virtually all the time at the federal level, and for Democratic candidates virtually all the time at the state level.

G. The voter who is really in the middle. If you are really so much in the middle that you are indifferent whether the Democrats or the Republicans win, then of course it makes sense to vote for the particular candidate that you like most: The strategic party power considerations are by hypothesis irrelevant to you — you’d rather elect (say) a smart Republican over a dumb Democrat because you just don’t care whether the Republicans or the Democrats are in power. I think few people really feel that way, though; I think that even if you aren’t a consistent supporter of one party or the other, and even if you disagree with much that either party would do, you can probably identify what you think is the lesser of two evils (or the greater of two very slight goods) in any particular election.

H. The voter who is near the middle, and who really cares a lot about a particular candidate. This is a more common variant of G — say you mildly prefer the Democrats over the Republicans, but you think that this Republican candidate is much better than the Democrats, in a way that really matters: Either he has the brilliance or charisma to really add a lot to legislative deliberations, or he is running for an executive office, where one person’s character, intelligence, and policy preferences really can make a huge difference. This too may be reason enough for you to abandon party-line voting; but again, you’d have to really feel that this one candidate can do so much good that the expected value of this good really exceeds the expected harm of the wrong party (from your perspective, of course) getting power.

I. Expressive voting. Of course, there’s been something of a fiction behind this whole discussion of strategic voting — the fiction that your vote will make much of a difference. In fact, your one vote is highly unlikely to affect things (though in a few elections, including even Congressional ones, the result does turn on a handful of votes). We therefore vote largely because of how it makes us feel about ourselves (e.g., because we’ve been taught that to be a dutiful citizen, one should vote, or because we feel good about voting for a particular person we really like). So under that approach, if it makes you feel good to think that you vote based on each candidate’s individual merit, that’s what you should do, and never mind the practical consequences, since as a practical matter, your one vote is extaordinarily unlikely to actually have any practical consequences.

Still, I find it hard to feel good about casting a vote that, if duplicated by many others, would actually lead to a result that I dislike. That might ultimately be more an aesthetic rather than rational judgment here, but that’s what expressive voting necessarily involves. Thus, so long as I feel that I ought to vote, based on the fiction that my vote does have some practical effect, I prefer to go through with the fiction, and ask what practical effect that I’d like to have. And since my preferred practical effect is having the Republican Party be in power, I almost always vote party line.

Finally, I’m sure that there are other reasons to depart from the “vote the party, not the candidate” approach, though I suspect that most are variants on some of the ones I identify above. I’m not saying that party line voting is always the right approach (right in the sense of being most likely to lead to the results that you, as a voter, like). I just think there is enough reason for me to adopt it as a very strong presumption in my voting choices.


Phillies Win World Series:

The Philadelphia Phillies have won the World Series for the first time since 1980, and only the second time in the team's 125 year history. A very impressive performance! Congratulations to all the Phillies Phans in my temporary home city during my semester at Penn. Hopefully, this win will ease the Phans' anguish over the fact that the city had not had a major sports championship since the 76ers won the NBA title in 1983.


Wednesday, October 29, 2008

Obama as HLR Editor:

Courtesy of a reader, here is an LA Times article from 1990 about Obama's Harvard Law Review experience that I hadn't seen before. The only revelation? Some details about a research paper Obama wrote for Laurence Tribe on abortion. I'm guessing that this was research for Tribe's book Abortion: The Clash of Absolutes, which appeared in 1990, and in which Tribe acknowledges Obama's research assistance.

But what truly distinguishes Obama from other bright students at Harvard Law, Tribe said, is his ability to make sense of complex legal arguments and translate them into current social concerns. For example, Tribe said, Obama wrote an insightful research article showing how contrasting views in the abortion debate are a direct result of cultural and sociological differences [like pro-life people who are bitter over their economic circumstances and therefore cling to religion? Just kidding, but it would be interesting to see the paper. If this paper did indeed find its way into the book in modified form, it's likely the material that starts at page 238, "How We See and Talk to One Another."].


Libertarian Voters:

Interesting article by Ryan Sager on Reason about the libertarian vote:

The Cato Institute has done excellent work over the last few years tracking the shift in the libertarian vote—the roughly 10 percent to 15 percent of the American public that can be categorized as fiscally conservative and socially liberal.

Based on an analysis of the American National Election Studies, Cato found that between 2000 and 2004, there was a substantial flight of libertarians away from the Republican Party and toward the Democrats. While libertarians preferred Bush by a margin of 52 points over Al Gore in 2000, that margin shrank to 21 points in 2004, when many libertarians—disaffected by the Iraq war, massive GOP spending increases, and the campaign against gay marriage—switched to John Kerry.

Polling on libertarian voters is somewhat sparse during elections, but there are a couple of data points and some broad trends that can give us an idea of where things stand now. An early October Zogby Interactive poll found that self-identified libertarians (about 6 percent of the poll's sample) give McCain only 36 percent of their vote, lower than the 45 percent and 42 percent Zogby found them giving Bush in the last two elections. The libertarian voters claim to be defecting mainly to Libertarian Party candidate Bob Barr and other third-party candidates, not to Obama. A Gallup poll conducted in September, which identified libertarian-minded voters with a series of ideological questions about the role of government in the economy and society (pegging them at around 23 percent of the electorate), found that only 43 percent of these voters plan pull the lever for McCain, slightly fewer than did for Bush in 2004. The Gallup poll also finds a significant uptick in libertarians planning to vote third-party, with 3.5 percent supporting Barr.

What I think is going on here is a general perception among libertarians that there is really no difference between McCain and Obama, so you may as well vote for Barr. McCain and Obama both are pretty statist, Obama moreso on the economy, McCain moreso on foreign policy. And McCain-Feingold is a true abomination. In which case it is a toss-up, or may as well vote for Barr (or I've also heard that Chuck Baldwin guy that I don't know anything about). Several of the libertarians in the American Conservative's issue on "Who are you voting for?" take this position as well.

One reason I speculate that this is what I "think is going on here" among libertarians is that until fairly recently this is exactly what I was thinking, even until relatively recently, and I was genuinely on the fence between McCain and Barr (acknowledging that Barr is both a bit of a nut and has some statist tendencies himself). But one reason why I linked Pete duPont's sobering WSJ column the other day is that I have slowly come to the conclusion that as bad as McCain is, Obama really is much, much worse than I realized for a long time. Maybe I'm just slower at this than others, but it really took a long for it to sink in to me exactly how far left Obama really is. On every single issue that I am aware of, he seems to be at the far left end of the Democratic Party spectrum. I mean really out there.

I think that my slowness to really pick up on this was due to several factors. First, Obama's demeanor is essentially moderate--he doesn't come across as a Howard Dean crazy type. I think this leads one to assume his policies are moderate. Second, my resistance to McCain was really quite strong--I've criticized him here before, especially for the way it seems that he approaches problems. Third, until recently McCain has really run a terrible campaign in terms of explaining the differences between himself and Obama in terms of illustrating exactly how far left Obama is. Fourth, because of media bias, the media has tended to reinforce the idea that Obama is a moderate and not to highlight the embarrassing parts of his message.

Perhaps most fundamentally, given the history of the world over the past 25 years I think I just had assumed that no serious politician or thinker would in this day and age hold the sorts of views that Obama seems to hold. Raising taxes in a recession, protectionism, abolition of the secret ballot for union elections, big spending increases, nationalized health care, and most appallingly (to my mind) the potential reimposition of the "Fairness Doctrine"--I mean this is pretty serious stuff. And when combined with a Democratic Congress, I think we may be talking about (to use Thomas Sowell's recent phrase) a "point of no return." I guess I just assumed that Obama would be sort of Bill Clintonish--"the era of big government is over" and all that stuff. That he would have absorbed the basic insights of recent decades on taxes, trade, regulation, etc.

What could we expect from McCain? Not much--but holding the status quo on some areas and perhaps a few improvements in others. Perhaps an end to the incontinent spending of the past few years. Elimination of earmarks. Free trade. No fairness doctrine (campaign finance reform is bad, but I think the Fairness Doctrine is much worse). A much better health care insurance policy. I'm not as optimistic as some of my friends that McCain's judges will be good, but I think Obama's judges likely would be really bad.

So what does this add up to? I totally can appreciate the view of libertarians who fundamentally don't see any real difference that matters between McCain and Obama and so will vote for Barr or another third-party candidate. I think that is a completely reasonable position.

But as I've looked at the actual policy positions of the two more closely, it seems to me that Obama really seems to be pretty far out there. He is no Bill Clinton. And from what I can tell none of those libertarians or conservatives who are Obama supporters are attracted to because of his positions (other than those who care strongly about the Iraq war and foreign policy), but rather because of who he is. Obama is a compelling personality. But in reading these encomiums to him, I haven't seen any explanation as to how Obama's policies on tax, trade, spending, or regulatory would be friendlier to individual liberty than what is likely to be McCain's (as weak as those will be). As someone observed somewhere recently, this is about the first time in history that you have endorsements from people who endorse Obama on the hope that he won't do what he says he'll do rather than because of what he says he'll do.

Thomas Sowell described the choice the other day as "a choice between disaster and catastrophe" which doesn't seem that far off for someone who believes in limited government and individual liberty.

Anyway, after really exploring their policies a bit more closely, I have finally come to the conclusion that as bad as they both are, there really is in the end a pretty significant difference between the two of them. Especially when you throw into the mix a Democratic Congress, perhaps with a veto-proof majority.

I can see why other libertarians may not see a big enough difference between them to really matter and will vote for Barr (or no one). And I think that is an eminently reasonable position in this election. But having read the Reason article, and having been in the same spot until relatively recently, I figured I'd mention my thinking.


In my initial post I had misplaced my phrase about what I am most appalled about--the reimposition of the fairness doctrine, which I have now corrected.


"Mass. Pol Accused of Stuffing Bra With Bribes":

From ABC News:

An embattled Massachusetts state senator appeared in a federal courtroom today charged with taking $23,500 in bribes, including cash that she stuffed into her bra during a meeting at a tony Boston restaurant that was secretly videotaped by an undercover FBI agent, federal prosecutors said.

Democratic state Sen. Dianne Wilkerson faces 40 years in prison after federal prosecutors outlined accusations that she accepted the bribes over an 18-month period in a money-for-legislative influence sting operation, prosecutors said. She had $6,000 in cash in her purse when she was arrested at her Roxbury home by nearly two dozen law enforcement officials, prosecutors said....

Thanks to reader Victor Steinbok for the pointer. He writes, "Not sure what Wilkerson's popular nickname will be after this. Perhaps someone should run a contest." TPMMUckraker includes "the picture from the affidavit exhibits that shows Wilkerson shoving $1000 into her bra" (no nudity).


Self-Defense, or Not?

The Seattle Post-Intelligencer covers a troubling case: A 16-year-old girl pled guilty to "manslaughter, for killing a 49-year-old man who'd hired her for sex," under circumstances that seem like they might well amount to self-defense:

In what [the] ex-wife [of victim Francisco Pena] described as "just one mistake" in an otherwise good life, the recently divorced father of two picked the girl up at a supermarket in Burien and, after buying a bottle of vodka and Crown Royal, brought her back to his home for "a date."

Though exactly what happened the evening of April 5 remains a mystery, court documents and the girl's statements indicate that the two drank, then fought over whether she would be allowed to leave Pena's house. He wouldn't let her go until they'd had sex, the girl told police, so she stabbed him in the chest with a steak knife....

The young woman will serve 2 to 2 ½ years at a juvenile detention facility for first-degree manslaughter, Superior Court Judge LeRoy McCullough ruled Tuesday. If the case had gone to trial she faced a sentence of 10 years ....

Attorneys on both sides of the case acknowledged that the girl's alcohol consumption the night Pena was killed might have led to an acquittal at trial. Cromwell said her client could not recall the incident, her memory lost to the liquor-fueled haze of the evening....

Cara at The Curvature is outraged, on the very plausible grounds that the girl was just acting in self-defense. It's certainly permissible to use deadly force to defend against an attempted rape, or against kidnapping, so "[h]e wouldn't let her go until they'd had sex" certainly sounds like it would qualify as a predicate for lethal self-defense. This seems particularly supported by prosecutors' (paraphrased) statement that "emerging information about what could have happened — including the possibility that the victim had attacked or threatened the girl — factored into the decision for the juvenile plea deal." So if this was self-defense, why push the girl to plead to a crime that she therefore wouldn't have committed?

The trouble is that it's of course impossible to tell from the news accounts — at least the ones I've seen — whether this was self-defense, or even whether there's proof beyond a reasonable doubt that it wasn't self-defense (the rule in Washington and lots of other states). If the girl really "could not recall the incident," then it's hard to tell how much to credit her account that "[Pena] wouldn't let her go until they'd had sex." She also isn't likely to be the most credible witness: She apparently has a history of "convictions for assault, theft, malicious mischief and stealing a car," and while even convicted criminals have a right to defend themselves, jurors may naturally be skeptical of their claims (especially when some of the crimes, such as theft, are evidence of dishonesty).

Also, it's not completely clear what her (paraphrased) statement that "He wouldn't let her go until they'd had sex" means. If it means that he was essentially trying to rape her by physically restraining her, or credibly threatening her with violence, and that she killed him to prevent or interrupt the rape, then that would be self-defense (if her story is believed). But if it means that he did rape her, and then let her go, and she killed him because of what he had done to her, then that would indeed be voluntary manslaughter: An intentional homicide that wasn't justified by the need to defend against a crime (since the crime was over), but that is a lesser crime than murder because of the provocation created by the just-completed crime. It may well be that the facts are clearer than the somewhat ambiguous statement; but the press accounts I saw did not make those facts clear.

So this, I think, helps show the inevitable problems that will sometimes arise even with a law of self-defense that is at bottom fairly sound. The problem is often not in the law, but in figuring out the facts, and in predicting how a jury will react to the contested claim of facts (especially when the defendant was drunk, or when the defendant's criminal record makes the defendant a less than normally credible witness). And in such a situation, it's not uncommon for the defense and the prosecution to reach a plea agreement to avoid the inevitable uncertainties of trial.


Khalidi Controversy:

Sen. McCain wants the L.A. Times to release the video in its possession of a 2003 farewell dinner for Palestinian activist and one-time PLO ally (and some claim spokesman) Rashid Khalidi. No wonder. In 2005, the New York Sun reported:

In Chicago, the Khalidis founded the Arab American Action Network, and Mona Khalidi served as its president. A big farewell dinner was held in their honor by AAAN with a commemorative book filled with testimonials from their friends and political allies. These included the left wing anti-war group Not In My Name, the Electronic Intifada, and the ex-Weatherman domestic terrorists Bernadine Dohrn and Bill Ayers. (There were also testimonials from then-state Senator Barack Obama [who attended, and spoke at, the dinner] and the mayor of Chicago.)

Internet Wayback tells us that its access to the website is blocked by robots.txt [update, not technically "blocked," but Wayback doesn't archive sites that use robots.txt to request that it not do so].

By the way, does the famously open-minded Sen. Obama, who by his own account has learned a great deal from his friendships with anti-American radicals such as Khalidi* and Jeremiah Wright, have any conservative friends (besides, perhaps, Tom Coburn)? Surely, he would have had the chance to make some at Columbia, Harvard Law, the University of Chicago when he taught there, or in the Illinois legislature--though admittedly they could not have helped him much in his early political career, as Wright and Khalidi did.

*His many talks with the Khalidis, Obama said, had been "consistent reminders to me of my own blind spots and my own biases. . . . It's for that reason that I'm hoping that, for many years to come, we continue that conversation — a conversation that is necessary not just around Mona and Rashid's dinner table," but around "this entire world."...

UPDATE: I figured that opening comments on this post was a bad idea, because of the vitriol that any mention on this blog of Obama's dubious associations gets, even when it happens to be all over the news, and even when the only actual implicit criticism in the post, as opposed to just noting that McCain has good reason for wanting a copy of a video that may (or may not) have some embarrassing footage of Obama with Ayers, or Obama sitting silently while speakers launch anti-Israel polemics, or who-knows-what, is "By the way, does the famously open-minded Sen. Obama, who by his own account has learned a great deal from his friendships with anti-American radicals such as Khalidi and Jeremiah Wright, have any conservative friends?" My initial instinct was right, so comments are now closed.

I've already explained, in a much-linked blog post, what I think is the relevance of Obama's ties to various Chicago radicals.

And by the way, my question about Obama's conservative friends wasn't merely rhetorical. It would, in fact, make me feel better about Obama on a variety of levels if it turns out that he has had deep conversations on political and cultural issues with knowledgeable friends "on the right," ranging from libertarians to Christian activists, and not just with a cohort ranging in ideology from Cass Sunstein to Rev. Wright. For one thing, no one on the "right" is likely to be happy with the thought that Obama thinks that Wright, Khalidi, et al., are worth listening to, even when he vehemently disagrees with them, but people of equivalent stature with views on the "right" (say, Richard Epstein at Chicago Law School) are not.


A verb usage you don't see every day:

From United States v. Crist, the Fourth Amendment case that Orin discussed the other day, p. 2:

After [they] explained what they were doing, Crist angered.

I had never seen this usage of "anger" before. I just looked it up in the OED:

d. intr. (refl. pron. omitted.) rare.

c1400 Destr. Troy XV. 6911 Vlixes..angrit full sore.
1786 BURNS Sc. Drink xiii, When neebors anger at a plea.

Time to send it in to the OED folks! But, regarding "Crist angered," cf. "Jesus wept."

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Taiwan's growing trade with China: A national security threat?

Last Friday, I presented a paper at a symposium at the University of Chicago's International House. The paper was part of a symposium on "Taiwan's New Approach: Opportunities and Challenges for President Ma Ying-jeou's Government." The paper is titled Poisoned Milk and the Poisoning of Democracy: Some Cautions about China Trade and Taiwan Sovereignty. It argues that Taiwan should make national security the foremost consideration in trade policy with China. This would support liberalization of Chinese tourism and Chinese students being allowed to study in Taiwan, the better to win the hearts and minds of the Chinese people. The paper suggests that--for purposes of human rights, and to sow the seeds for long-term political reform in China--new Taiwanese foreign direct investment in China be required to go to businesses which allow Chinese workers to elect a workers council. Taiwan should energetically develop its trade with India, as an alternative to China; should further restrict Chinese food imports; and should get rid of trade negotiators who have business interests in China. Allowing economic integration with China without regard for national security could, the paper suggests, lead to the destruction Taiwan's sovereignty, independence, and freedom.


Some (I Hope Mildly Interesting) Pedantry About Day of Week Frequency:

A commenter in a recent thread writes, "So, if election day was the first Tuesday, it would occasionally (I can't do the math for how often) fall on Nov. 1--All Saints Day."

Another responds, "Nov. 1 is a Tuesday, on average, once every seven years (the same amount it's a Monday, or a Sunday, or a Friday). The math's not that hard. :)"

The second commenter is basically right, for all practical purposes. But he's not exactly right, at least if he's saying that it's precisely equally common for Nov. 1 to fall on each day of the week. Why? The answer is below.


"Increas[e] Student and Faculty Diversity" While "Not Admit[ting] Students Who Are Intolerant":

What a fine suggestion from Professor of Sociology Johnny Eric Williams. At least it makes quite clear what the professor means, and doesn't mean, by "diversity."

Note that the quotes are the article's paraphrases of Prof. Williams' statements, but I e-mailed Prof. Williams to ask, "Is that an accurate paraphrase of your suggestion, or did the newspaper misreport it?," and was told that the paraphrase was "in the ballpark" (with no attempt at amendment or clarification).

UPDATE: My original post was titled "Increas[e] Student and Faculty Diversity" By "Not Admit[ting] Students Who Are Intolerant"; Orin's comment led me to change the "by" to the more precise "while." Many thanks to Orin for the correction.]


"Quinnipiac University Threatens Student Group for Associating with Off-Campus Newspaper":

So says FIRE, which I've generally found quite reliable on such matters, and its reproduction of a university official's letter seems pretty damning.

Does anyone know what's up with Quinnipiac here, and whether there's any justification for its action that I might be missing? As FIRE's Adam Kissel writes, "QU is a private university, and it may choose to prize certain values higher than freedom of the press and freedom of association. But what value is QU promoting here other than squelching criticism of the university?"


"Students Do Not Have a Right

to engage in behavior which elicits fear amongst other college students and creates an environment where intimidating rallies and protests occur against a specific group of people." "Let this piece serve as a calling for administrators, faculty members and students to look at their campus laws and policies to ensure that protests and rallies may occur, but only if they are contained so as to not forecast threats toward other students on campus."

And it's pretty clear that the author -- a commentator at the University of Connecticut student newspaper -- isn't just speaking of speech that itself contains threats against certain people. Rather, in his view, even "draw[ings of] allusions to the extreme suffering of millions of innocent people," "drawing[s of] symbols on campus which excuse horrendous human rights violations against enslaved blacks," and similar "menacing and threatening" expression needs to be banned, presumably because it constitutes "targeted hate speech against an entire group of people."

"Regardless as to which group is targeted, let us call out professors who abuse their position of power to utter reckless and incendiary comments. Let us work together to curb events which demonize people for their religion, race, ethnicity and other attributes." And in context, it's clear that he's talking about coercive suppression of speech by universities, not just "call[ing] out" through counterspeech, or "curb[ing]" through public condemnation. Oh, yes, and jurors who take the opposite view are "pinheads."

The particular speech that Mr. Tarr is focusing on is anti-Semitic speech, but naturally his rationale applies to whatever other speech can be characterized by university administrators as "intimidating" or "excus[ing] horrendous human rights violations" or "demoniz[ing of] people for their ... attributes."


Obama's Disadvantages:

I agree with co-blogger Ilya (below) that McCain started this campaign with some serious disadvantages, and one can argue that it's surprising that the presidential race is as close as it is.

On the other hand, consider this: Kerry, Dukakis, Mondale, McGovern, and Humphrey. Those are the last five northeastern or midwestern liberals to win the Democratic nomination. Moreover, no Democrat has won the presidency without at least one member of the ticket being widely perceived as closer to moderate than to liberal since at least 1948, perhaps 1940. (I don't know enough about how Truman was perceived in 1944, or his running mate in 1948).


Lenin quote bleg:

Did the father of modern tyranny actually say "The capitalists will sell us the rope with which we will hang them"? If any commenter could supply a proper citation to Lenin himself, I would be grateful. Or does Lenin, like his elder brother Satan and his younger brother Hitler, sometimes get credited with clever things that he never really said?


The Enormous Odds Against McCain:

In the blogosphere and elsewhere, some conservative commentators have argued that John McCain could win the election if only he adopted this or that rhetorical line, chose a better running mate than Sarah Palin, or otherwise adjusted his campaign strategy. On the other side of the political spectrum, some liberals believe that Obama is winning because the voters agree with his liberal ideology and otherwise greatly like him. Both sides ignore the fact that the historical odds are hugely stacked against McCain.

Voters tend to turn against the party of the incumbent officeholders whenever things seem to be going badly - even if there isn't any real proof that the problems are the incumbent party's fault. They even punish incumbent governors when economic conditions deteriorate because of bad weather. Today, voters have an exceptionally negative view of the status quo. They are angry about the state of the economy, the mishandling of the Iraq War, and other real and imagined failures. Fairly or not (I personally think that the Republicans do in fact deserve a good deal of blame), the voters blame the Republicans for these problems. The electoral odds are therefore very heavily stacked against McCain. If he were to win, it would probably be the greatest upset in the history of American presidential elections.

Showing better sense than some other pundits, conservative columnist Byron York gives a good summary of the conditions working against McCain:

The difficulty of succeeding a two-term president of one’s own party — a feat accomplished only once since Truman succeeded FDR.

The even greater difficulty of succeeding a two-term president of one’s own party who has a job-approval rating of 25 percent and a disapproval rating of 70 percent, as George W. Bush had in a recent Gallup poll.

The historically high proportion of Americans who say the country is on the wrong track — as high as 90 percent in a recent Washington Post survey.

The enthusiasm gap, with far fewer Republicans than Democrats saying they are fired up about supporting their candidate.

The Republicans’ deficit in party identification, which ranges between five and ten percentage points.

The financial crisis, including the 5,500-point fall in the Dow Jones Industrial Average between November 2007 and October 2008.

The war in Iraq, with nearly 4,200 Americans dead and a majority of Americans judging that the gains have not been worth the cost....

In this environment, McCain is actually doing very well to be down by only about 5 to 7 points in recent national polls.

I have little love for McCain. I think he is wrong on many policy issues, and that his temperament may not be right for the presidency. But he is not losing because he is a bad campaigner or because Obama is unusually appealing (though in some ways he is). He's losing because he and the Republicans are battling overwhelming odds. No amount of clever campaign maneuvers is likely to change that.


Tuesday, October 28, 2008

Why Tuesday, November 4?: Why are elections held on the first Tuesday following the first Monday in November -- this year, November 4th? A Congressional Research Service Report from 2001 provides the answer:
  Elections for all federal elected officials are held on the Tuesday after the first Monday in November in even-numbered years . . . ; presidential elections are held in every year divisible by four. Congress selected this day in 1845 (5 Stat. 721); previously, states held elections on different days between September and November, a practice that sometimes led to multiple voting across state lines, and other fraudulent practices.
  By tradition, November was chosen because the harvest was in, and farmers were able to take the time needed to vote. Tuesday was selected because it gave a full day's travel between Sunday, which was widely observed as a strict day of rest, and election day. [Footnote: In most rural areas, the only polling place was at the county seat, frequently a journey of many miles on foot or horseback.] Travel was also easier throughout the north during November, before winter had set in.
  Some sources also suggest that Tuesday was picked over Wednesday because Wednesday was usually market day.

Denominationally Specific Legislative Prayers:

Today's decision of the U.S. Court of Appeals for the Eleventh Circuit in Pelphprey v. Cobb County upholds the Cobb County Commission's practice of having invited clergy give prayers before commission meetings, and invalidates the Cobb County Planning Commission's practice.

Before both commissions, the clergy often gave prayers specific to their religions, invoking the holy figures of their religions (e.g., Jesus, Allah, etc.). The difference: The County Commission seemed to be pretty much randomly choosing clergy from the phone book and similar source; the Planning Commission seemed to be deliberately limiting its selection process to Christian clergy (and excluding some groups even within that category).

The majority concluded that its result was consistent with Marsh v. Chambers (1983) — the Court's somewhat opaque legislative prayer case — and later Establishment Clause caselaw. The dissenting judge argues that Marsh should be limited to state and federal legislatures, and shouldn't include local government entities.

I'm not sure whether the majority's general analysis of Marsh and later cases is entirely right, though on first read it strikes me as fairly persuasive. But the dissenting judge's attempts to distinguish local government entities from state and federal legislatures strikes me as unsuccessful.


"Gun Sales Thriving in Uncertain Times,"

reports the Washington Post,

Several variables drive sales, but many dealers, buyers and experts attribute the increase in part to concerns about the economy and fears that if Sen. Barack Obama of Illinois wins the presidency, he will join with fellow Democrats in Congress to enact new gun controls.

The trouble is that, as the article says some twenty paragraphs down,

This year's jump is a continuation of a trend that began in 2006, about the time the housing bubble popped in parts of the nation, and remained steady last year as the political season began to take shape and the housing crisis grew.
Sure enough, FBI data shows the increase starting in 2006. If you compare each month to the same month in the preceding year, you see the spike beginning basically in late 2005 or January 2006, with the increase being higher in nearly every 2007 month than in nearly every 2008 month (all numbers are percentage differences between the same month in two neighboring years, with the last column representing the percentage differences between years):
2001, relative to 20000-5-1-41-2-141022964
2002, relative to 200143-265-4-1-2-16-18-10-8-5
2003, relative to 2002-223-1020-121-530
2004, relative to 20036203-435-201672
2005, relative to 2004-134332037-2483
2006, relative to 2005131010612111221161413812
2007, relative to 20061511152028292010363-211
2008, relative to 20075127121031843

So it's hard to see how this supports the "concerns about the economy" story; there's always some concern about the economy, but I have no reason to think that it somehow dramatically increased in late 2005 or early 2006, and then decreased in 2008 compared to 2007. And I don't see how it supports the "fears of future gun controls" story, especially since you'd think that most of the buying along those lines will happen when the gun controls are actually proposed and working their way through the legislative process, rather than just when a pro-gun-control President might seem likely to be elected. So the Washington Post rationales seem to be supported by the quotes they use from the particular sources they rely on, but not by the hard data.

Thanks to Andrew Siddons of the Yomiuri Shimbun for the pointers.

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My wife and I saw RocknRolla Saturday. It was moderately fun, but slow and confusing at times, and not as fun as Ritchie's Lock, Stock, and Two Smoking Barrels and Snatch; but that's not the reason I'm blogging about it. Rather, some of the characters were supposed to be Russian, and the subtitles for some of the Russian dialogue were sometimes completely different from the spoken dialogue itself.

It's not just that the spoken dialogue was a mistranslation of the subtitle (there were a few possible instances of that, but I wasn't referring to that); in a few instances, the dialogue just didn't match the subtitle at all. I recall, for instance, one shot in which the subtitle is something like "give me the gloves," and the spoken Russian is "I don't trust her." In another scene, where two Russians are comparing war wounds and describing their sources, the subtitle is "barbed wire" and the spoken Russian is "land mine."

Naturally this doesn't materially affect how enjoyable the movie is, even to the very few Russian speakers who see it. But it did strike me as odd. Here's the one explanation I could think of: At some point after the movie was shot, the subtitles were rewritten — presumably on the grounds that the new version was somehow better, or better matched the visible action — but the filmmaker concluded that there was no real benefit in reshooting the scene or in dubbing over the dialogue. Does that make sense?


Split Infinitives:

The New York Times blog takes up the question of split infinitives, and begins with this item from the Times stylebook:

split infinitives are accepted by grammarians but irritate many readers. When a graceful alternative exists, avoid the construction: to show the difference clearly is better than to clearly show the difference. (Do not use the artificial clearly to show the difference.) When the split is unavoidable, accept it: He was obliged to more than double the price.

So far, not bad. I like the "to clearly show" version more, but at least the stylebook rejects the "split infinitives are ungrammatical" myth, while acknowledging that authors should keep in mind some readers' preferences.

Still, look at what even a measured preference against split infinitives yields:

The Treasury has promised to independently evaluate potential conflicts, but it appears that officials plan to start with the firms’ own self-assessment of any problems.

This may be a closer call [than the previous example], but a slight rephrasing like “promised independent evaluations of potential conflicts” would avoid the problem.

Yes, it will avoid the problem of irritating some readers who dislike split infinitives -- but only by changing a verb phrase to a noun phrase. Verb phrases ("promised to independently evaluate potential conflicts") tend to be more active and engaging than their nominalized forms ("promised independent evaluations of potential conflicts"). They tend to be slightly simpler grammatically (note that the nominalization requires an extra prepositional phrase). And they often make clearer who is doing what: In this very example, for instance, the original indicates the Treasury will independently evaluate potential conflicts, while the revised version leaves that uncertain (since it just says there would be independent evaluations).

That's why avoid nominalization is itself common usage advice, and in my view better advice than avoid split infinitives, because it deals with real lack of clarity and vigor rather than just with accommodating the views of some readers. Again, I acknowledge that accommodating reader preferences is something that writers, especially writers at for-profit institutions, often need to do. But it's important to recognize, I think, that this particular preference against split infinitives can be costly.

Perhaps it's possible to rewrite the sentence in a way that avoids the split infinitive without nominalizations or other clunky constructions. But even if that's so, it's still worth focusing on the rewrite suggested by the Times blogger, a professional editor "who is also in charge of The Times’s style manual." If the desire to avoid split infinitives pulls this experienced editor into making the sentence less active, more complex, and more opaque, it's a fair bet that it will often do the same to other, less experienced editors, even if enough thinking can yield a supposedly better solution.

Thanks to Prof. Sam Levine for the pointer.


More on Kadi,

international law, and the emergence of Europe as a state (or not), here.


Can Sen. Stevens Vote for Himself?

The Politico raises the question of whether Senator Ted Stevens, now that he is a convicted felon, can vote for his own reelection to the U.S. Senate. Under Alaska law, those convicted of a felony involving moral turpitude are disenfranchised. So, it seems, whether Stevens can vote depends on a) whether making false statements constitutes a crime involving moral turpitude, and b) whether the disenfranchisement becomes effective upon conviction, or only after sentencing and entry of the judgment. Another wrinkle, The Politico notes, is that Senator Stevens may have already voted absentee because he's been stuck in D.C. for his own trial.

Meanwhile, Rick Hasen notes that were Senator Stevens to resign, Governor Palin would appoint a successor. Were Stevens to resign after the election — say, in January — Palin would still pick a replacement, but would also have to call a special election to fill out the remainder of the full Senate term. As for what if Sen. Stevens were to withdraw from the race (fat chance), Alaska law appears to be silent about how to deal with a candidate's withdrawal so close to the election.

UPDATE: More from Rick Hasen here, including a potential constitutional wrinkle in Alaska's rules for filling Senate vacancies.

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Huizenga in a Hurry:

Miami Dolphins owner Wayne Huizenga is reportedly in a rush to sell a portion of the football team so as to avoid Barack Obama's proposal to increase the tax on capital gains. A spokesperson for the Obama campaign commented that Huizenga has overstated Obama's proposed increase in the capital gains tax and that middle-class tax cuts "will mean a whole lot of Dolfans will be better able to afford those ever-rising ticket prices."


Judge Limits Halloween Limits on Sex Offenders (But Leaves Scarlet Pumpkins Intact):

The NYT reports:

A federal judge in Missouri on Monday temporarily blocked parts of a new state law that requires sexual offenders to remain in their homes on Halloween evening and to avoid any contact with children related to the holiday.

The judge, Carol E. Jackson, of United States District Court in St. Louis, said the law was unclear, questioning language that prohibits “all Halloween-related contact with children” and allows sexual offenders to leave their homes from 5 p.m. to 10:30 p.m. only if they have “just cause.”

Two issues raised by the case were whether sexual offenders could celebrate the holiday with their own children or grandchildren, for example by hanging decorations or carving pumpkins, and on what grounds they could leave home during the curfew. . . .

Chief Judge Jackson allowed two provisions in the law to stand, requiring sexual offenders to post a sign stating “no candy or treats at this residence” and to turn off any porch lights.

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Monday, October 27, 2008

Ross Douthat: I don't know how many of our readers also visit Ross Douthat's blog, but I've been reading it for a few weeks now and I think it's excellent. If you're interested in a political blog from a thoughtful conservative perspective, Douthat should be on your list.

District Court Holds that Running Hash Values on Computer Is A Search: The case is United States v. Crist, 2008 WL 4682806 (M.D.Pa. October 22 2008) (Kane, C.J.). It's a child pornography case involving a warrantless search that raises a very interesting and important question of first impression: Is running a hash a Fourth Amendment search? (For background on what a "hash" is and why it matters, see here).

  First, the facts. Crist is behind on his rent payments, and his landlord starts to evict him by hiring Sell to remove Crist's belongings and throw them away. Sell comes a cross Crist's computer, and he hands over the computer to his friend Hipple who he knows is looking for a computer. Hipple starts to look through the files, and he comes across child pornography: Hipple freaks out and calls the police. The police then conduct a warrantless forensic examination of the computer:
In the forensic examination, Agent Buckwash used the following procedure. First, Agent Buckwash created an “MD5 hash value” of Crist's hard drive. An MD5 hash value is a unique alphanumeric representation of the data, a sort of “fingerprint” or “digital DNA.” When creating the hash value, Agent Buckwash used a “software write protect” in order to ensure that “nothing can be written to that hard drive.” Supp. Tr. 88. Next, he ran a virus scan, during which he identified three relatively innocuous viruses. After that, he created an “image,” or exact copy, of all the data on Crist's hard drive.

Agent Buckwash then opened up the image (not the actual hard drive) in a software program called EnCase, which is the principal tool in the analysis. He explained that EnCase does not access the hard drive in the traditional manner, i.e., through the computer's operating system. Rather, EnCase “reads the hard drive itself.” Supp. Tr. 102. In other words, it reads every file-bit by bit, cluster by cluster-and creates a index of the files contained on the hard drive. EnCase can, therefore, bypass user-defined passwords, “break[ ] down complex file structures for examination,” and recover “deleted” files as long as those files have not been written over. Supp. Tr. 102-03.

Once in EnCase, Agent Buckwash ran a “hash value and signature analysis on all of the files on the hard drive.” Supp. Tr. 89. In doing so, he was able to “fingerprint” each file in the computer. Once he generated hash values of the files, he compared those hash values to the hash values of files that are known or suspected to contain child pornography.Agent Buckwash discovered five videos containing known child pornography. Attachment 5. He discovered 171 videos containing suspected child pornography.
  One of the interesting questions here is whether the search that resulted was within the scope of Hipple's private search; different courts have approached this question differently. But for now the most interesting question is whether running the hash was a Fourth Amendment search. The Court concluded that it was, and that the evidence of child pornography discovered had to be suppressed:
The Government argues that no search occurred in running the EnCase program because the agents “didn't look at any files, they simply accessed the computer.” 2d Supp. Tr. 16. The Court rejects this view and finds that the “running of hash values” is a search protected by the Fourth Amendment.

Computers are composed of many compartments, among them a “hard drive,” which in turn is composed of many “platters,” or disks. To derive the hash values of Crist's computer, the Government physically removed the hard drive from the computer, created a duplicate image of the hard drive without physically invading it, and applied the EnCase program to each compartment, disk, file, folder, and bit.2d Supp. Tr. 18-19. By subjecting the entire computer to a hash value analysis-every file, internet history, picture, and “buddy list” became available for Government review. Such examination constitutes a search.
  I think this is generally a correct result: See my article Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005), for the details. Still, given the lack of analysis here it's somewhat hard to know what to make of the decision. Which stage was the search — the creating the duplicate? The running of the hash? It's not really clear. I don't think it matters very much to this case, because the agent who got the positive hit on the hashes didn't then get a warrant. Instead, he immediately switched over to the EnCase "gallery view" function to see the images, which seems to be to be undoudtedly a search. Still, it's a really interesting question.

  Also, it seems that the Government failed to make the strongest argument that running the hash isn't a search: If the hash is for a known image of child pornography, then running a hash is a direct analog to a drug-sniffing dog in Illinois v. Caballes, 543 U.S. 405 (2005). Although Caballes is cited in the opinion for other reasons, it seems that the government didn't make the Caballes argument.

  It's possible that the argument wasn't raised because the agent made a hash of every file instead of running a search just for matches of known images. But I'm not sure that really makes a difference, and whether it does hinges on some interesting questions. Is the creation of the hash a search? Or is running a query that matches the hashes to known hashes and produces a positive hit a search? It might also break down based on how much the government saw of the machine while the hashes were being made: Perhaps the search occurred when the file structure was revealed to the officers (if it was in fact revealed). But if so, I'm not sure that the images themselves should be suppressed as compared to evidence more directly related to the revealing of the file structure.

  Either way, this is a fascinating computer crime law issue that gets debated from time to time without any case law; I believe this is the first case on the topic. Ah, more grist for the mill of the forthcoming second edition of my computer crime casebook. Thanks to for the mention of the opinion, and Matt Caplan for the .pdf.

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The Obama Program:

There has been a good deal of to-and-froing between the presidential candidates on a variety of issues. But I think that Pete duPont's column in the WSJ (may be subscriber only) is an accurate summary of what President Obama's program would would be, isn't it (leaving aside the tendentious asides and commentary like "emboldening terrorists"):

So where is the new Obama administration likely to take us? Seven things seem certain:

The U.S. military will withdraw from Iraq quickly and substantially, regardless of conditions on the ground or the obvious consequence of emboldening terrorists there and around the globe.

Protectionism will become our national trade policy; free trade agreements with other nations will be reduced and limited.

Income taxes will rise on middle- and upper-income people and businesses, and individuals will pay much higher Social Security taxes, all to carry out the new president's goals of "spreading the wealth around."

Federal government spending will substantially increase. The new Obama proposals come to more than $300 billion annually, for education, health care, energy, environmental and many other programs, in addition to whatever is needed to meet our economic challenges. Mr. Obama proposes more than a 10% annual spending growth increase, considerably higher than under the first President Bush (6.7%), Bill Clinton (3.3%) or George W. Bush (6.4%).

Federal regulation of the economy will expand, on everything from financial management companies to electricity generation and personal energy use.

The power of labor unions will substantially increase, beginning with repeal of secret ballot voting to decide on union representation.

Free speech will be curtailed through the reimposition of the Fairness Doctrine to limit the conservative talk radio that so irritates the liberal establishment.

These policy changes will be the beginning of the Europeanization of America. There will be many more public policy changes with similar goals—nationalized health care, Kyoto-like global-warming policies, and increased education regulation and spending.

Additional tax advantages for lower and middle income people will be enacted: a 10% mortgage tax credit that would average about $500 per household per year, a $4,000 tax credit for college tuition, a tax credit covering half of child-care expenses up to $6,000 per year, and even a $7,000 credit for purchase of a clean car.

This seems accurate in substance to me from what I know. Is it?

Those of us in the academy should be licking our chops at the $4000 tax credit for college tuition. It is amazing to me that no one has caught onto our scam that whenever they try to make college more "affordable" by raising government support for education we suppliers of higher education capture almost all of it in higher tuition and fees. So it seems like usually turns out to be less a reduction in the cost than a redistribution to the higher education industry.


Sen. Stevens - Guilty:

A jury has found Alaska Senator Ted Stevens guilty on seven felony counts of making false statements about gifts he received. The deliberations took five hours. Despite the verdict, Senator Stevens insisted he is innocent, decried alleged prosecutorial misconduct, and announced that he will appeal the verdict. In the meantime, he is still running for reelection to his Senate seat. In my view, Stevens should have withdrawn from the race months ago, but it's not too late. When even the RedState guys are endorsing your Democratic opponent, it's time to throw in the towel.

Related Posts (on one page):

  1. Can Sen. Stevens Vote for Himself?
  2. Sen. Stevens - Guilty:

Oldest Functioning, Living Human Body Part:

Reuters reports:

Bernt Aune's transplanted cornea has been in use for a record 123 years -- since before the Eiffel Tower was built.... Aune, an 80-year-old Norwegian and former ambulance driver, ... had a cornea transplanted into his right eye in 1958 from the body of an elderly man who was born in June 1885....

The oldest person who had documents to prove it was France's Jeanne Calment, who was 122 old when she died in 1997, according to the Guinness Book of Records....

Thanks to GeekPress for the pointer.


Can McCain Win?:

The polls posted on RCP today show Obama ahead by 5, 5, 8, 5, 3 and 3 (plus the odd Gallup "expanded" poll, showing 10). So let's say the median is 5, which is closer than other recent polls. And except for the Gallup expanded, the most Obama gets in any of the polls is 51%.

So here's the scenario: if McCain is in fact behind by about 5 points (a big if), he has eight days to get some enough Obama-leaning voters and undecideds to vote for him to narrow the gap to two points; difficult, but a three-point swing, including the 4-9% of voters who are undecided, is not out of the question. With regard to undecideds, some have argued that the real "Bradley effect" is that undecideds when there is a black candidate tend to break for the white opponent. ( disagrees).

Once the gap is that low, a narrow electoral majority is possible. 50,000 or so more votes for Kerry in Ohio in 2004, for example, and Kerry would be president, even though he was behind by 2.5% in the popular vote. With big electoral vote states like New York, Michigan, Illinois, and California going overwhelmingly for Obama, and many traditional Republican states pretty close, the popular vote estimates could overstate Obama's electoral margin considerably (or understate it considerably, if he wins all the close states).

Likely? No? Impossible? No. Of course if the polls showing a 3% gap are correct, then the race may already be something close to a tossup at this point. And if the slightly older polls showing a gap of nine or more points are correct, McCain's chances are closer to none than to slim. Likewise if Obama's vaunted turnout machine is as good as some claim, and the polls are undercounting Obama voters.

UPDATE: Just to be clear, I think the odds heavily favor Obama. But there's a difference between being the heavy favorite, and a sure thing.


More on Obama and the Warren Court: Stephen Henderson, Deputy Editorial Page Editor of the Detroit Free Press, writes in to note that Barack Obama gave a fairly detailed answer a few weeks ago to the Free Press editorial team on the question of what kind of Supreme Court Justice he would want to appoint:
Q: You voted against confirming both Justice Alito and Chief Justice Roberts (for the U.S. Supreme Court). You said you want justices who are passionate. ... You taught constitutional law for 10 years, so I'm wondering if you can tell us, outside the context of the current court, what justices would you use as models for your pick?

A: Well, it depends on how far you go back. I mean, Justice (John) Marshall was pretty good ... but those were some different times. There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, (Thurgood) Marshall. But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today.
  Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.
  I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. ... So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.
  I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
  That, I think is the kind of justice that I'm looking for -- somebody who respects the law, doesn't think that they should be making law ... but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice.
  That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up. That's inherently the role of the court. And if somebody doesn't appreciate that role, then I don't think they are going to make a very good justice.

Evaluating different Administrative Law casebooks:

I'm about to teach an Administrative Law elective for 1Ls. Because it's for 1Ls, I want to have a book with less reading -- for instance, the standard Gellhorn & Byse is probably too long and detailed for 1Ls. I'd prefer to have a book where I can assign 600-700 pages. With that in mind, I'd appreciate any feedback on what people thought of the following books, if you've encountered them:

  • Cass, Diver, Beermann -- I'd probably assign Chapters 1-6 (617 pp.), omitting the chapters on Enforcement and Liability, Licensing, and Public Access; and I'd probably do chapters 2 & 3 (on judicial review) last.

  • Rogers, Healy, Krotoszynski -- I'd probably do the whole book (727 pp.) while cutting out about 100 pages worth of stuff somewhere. (Perhaps I'd cut about 50 pages from the end of chapter 2 on adjudication, 30 pages from the end of chapter 5 on judicial review, etc.)

  • Schwartz, Corrada, Brown -- I'd probably do the whole book except for the chapter on Investigations and Privacy (that comes out to about 670 pp.), and cut chunks out of the Evidentiary Hearings and Decisions chapter. Concerns: This doesn't seem to have good coverage of Myers and Humphrey's Executor.

  • Funk, Shapiro, Weaver -- I'd probably assign Chapters 1-6 (582 pp.), omitting the chapters on Inspections, Reports & Subpoenas; Public Access to Agency Processes; and Attorneys Fees. Concerns: This is oriented toward administrative practice, which is fine but not particularly my emphasis; it's also got Chevron and Mead divided in funny ways across different chapters.

Please let me know, also, if you've encountered the books as a professor or as a student.


Was Sarah Palin Right about the Vice Presidency?

Glenn Reynolds of Instapundit graces the NYT op-ed page today with a short piece on the nature of the vice presidency.

Article I of the Constitution, which describes the authority of the legislative branch, says that “the vice president of the United States shall be president of the Senate, but shall have no vote, unless they be equally divided.” Aside from the job of replacing a president who dies or is unable to serve, the only vice presidential duties that are spelled out in the Constitution are legislative in character.

But if the vice president is a legislative official, then the exercise of executive power by the vice president raises important constitutional questions related to the separation of powers. The Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power. The Court would likely dub this a “political question” that is beyond its purview, but Congress is empowered to remedy this sort of thing by legislation.

And Congress should do just that: pass a law to prohibit the vice president from exercising executive power. Extensive vice presidential involvement in the executive branch — the role enjoyed by Dick Cheney and Al Gore — is not only unconstitutional, but also a bad idea.

For Reynolds' extended analysis of the vice presidency (and an answer to the question "Is Dick Cheney Unconstitutional?"), see this paper on SSRN.

UPDATE: Over on Bench Memos, Matt Franck and Adam White are unconvinced.


Wagner & McGarity's Bending Science:

In a new book, Bending Science: How Special Interests Corrupt Public Health Research, law professors Thomas McGarity and Wendy Wagner make the case for new safeguards to protect against the misuse and manipulation of scientific research in toxic risk regulation. In their view, ideological and economic interests use a "range of sophisticated legal and financial tactics" to spin and suppress unwanted scientific findings.

This Wednesday, Wagner and McGarity will present their book at a forum sponsored by the Center for Business Law & Regulation at the Case Western Reserve University School of Law. The two authors will outline their thesis and findings, after which noted environmental law scholars Christopher Schroeder and E. Donald Elliott will offer commentary. Details on the event and the live webcast are available here. For those who cannot attend, the webcast will be archived for future viewing. CLE credit will also be available for those who attend in person.


"Ashamed" to Be a Journalist:

Technology writer Michael Malone thinks media bias is at an all time high. In his view, it is so bad that he is "ashamed" to call himself a journalist anymore.

The sheer bias in the print and television coverage of this election campaign is not just bewildering, but appalling. And over the last few months I've found myself slowly moving from shaking my head at the obvious one-sided reporting, to actually shouting at the screen of my television and my laptop computer.

But worst of all, for the last couple weeks, I've begun -- for the first time in my adult life -- to be embarrassed to admit what I do for a living. A few days ago, when asked by a new acquaintance what I did for a living, I replied that I was "a writer," because I couldn't bring myself to admit to a stranger that I'm a journalist. . . .

For many years, spotting bias in reporting was a little parlor game of mine, watching TV news or reading a newspaper article and spotting how the reporter had inserted, often unconsciously, his or her own preconceptions. But I always wrote it off as bad judgment and lack of professionalism, rather than bad faith and conscious advocacy.

Sure, being a child of the '60s I saw a lot of subjective "New" Journalism, and did a fair amount of it myself, but that kind of writing, like columns and editorials, was supposed to be segregated from "real" reporting, and, at least in mainstream media, usually was. The same was true for the emerging blogosphere, which by its very nature was opinionated and biased. . . .

I watched with disbelief as the nation's leading newspapers, many of whom I'd written for in the past, slowly let opinion pieces creep into the news section, and from there onto the front page. Personal opinions and comments that, had they appeared in my stories in 1979, would have gotten my butt kicked by the nearest copy editor, were now standard operating procedure at the New York Times, the Washington Post, and soon after in almost every small town paper in the U.S.

But what really shattered my faith -- and I know the day and place where it happened -- was the war in Lebanon three summers ago. The hotel I was staying at in Windhoek, Namibia, only carried CNN, a network I'd already learned to approach with skepticism. But this was CNN International, which is even worse.

I sat there, first with my jaw hanging down, then actually shouting at the TV, as one field reporter after another reported the carnage of the Israeli attacks on Beirut, with almost no corresponding coverage of the Hezbollah missiles raining down on northern Israel. The reporting was so utterly and shamelessly biased that I sat there for hours watching, assuming that eventually CNNi would get around to telling the rest of the story & but it never happened.

But nothing, nothing I've seen has matched the media bias on display in the current presidential campaign.

Malone blames media editors more than reporters for biased campaign coverage. He writes: "most reporters, whatever their political bias, are human torpedoes & and, had they been unleashed, would have raced in and roughed up the Obama campaign as much as they did McCain's." To him, it's the people who call the shots -- who decide what stories to assign -- who are the real culprits.

Malone also argues that media bias is potentially "dangerous" for the media itself both because it alienates the public and because it risks the imposition of government regulation of media content, such as through the "fairness doctrine." I think the former threat is real, and I think media bias hurts the bottom line of traditional media outlets. But I am not sure the "fairness doctrine" is as much of a threat to the mainstream media as Malone suggests (though it's a real threat to talk radio and the blogosphere). I also suspect (hope) that were the doctrine ever reenacted, it would not survive constitutional challenge.


Obama on Redistribution of Wealth:

As Orin points out below, Drudge is highlighting excerpts of a 2001 interview Barack Obama did with Chicago public radio, in which he advocated "redistributive change." The context was a discussion of the Supreme Court and constitutional law.

Before getting to the controversy, the whole interview is worth listening to for another reason: Obama gives a very impressive performance as a constitutional scholar. Even though he was holding down other jobs while teaching at Chicago, he clearly had thought a lot about constitutional history, and how social change is or is not brought about through the courts. Among other things, I was impressed that rather than accept the rather cartoonish view that often prevails about the practical significance of Brown v. Board of Education, he knew that very few black students in the South were attending integrated schools as late as the early 1960s (almost a decade after Brown), and that it was only the threat of a cutoff of federal funds that really got desegregation moving. Being realistic about the practical effect of Brown is heresy in some circles, but Obama is correct. Relatedly, Obama was clearly influenced by Rosenberg/Klarman thesis that the Supreme Court rarely diverges much from social consensus, and can't be expected to.

On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.) Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve.

Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he's an originalist, or otherwise endorses the Constitution as a "charter of negative liberties," though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn't have public backing. The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. Again, he's channeling Rosenberg and Klarman. And this attitude on Obama's part shouldn't be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.)

All that said, there is no doubt from the interview that he supports "redistributive change," a phrase he uses at approximately the 41.20 mark in a context that makes it clear that he is endorsing the redistribution of wealth by the government through the political process.

What I don't understand is why this is surprising, or interesting enough to be headlining Drudge [UPDATE: Beyond the fact that Drudge's headline suggests, wrongly, that Obama states that the Supreme Court should have ordered the redistribution of income; as Orin says, his views on the subject, beyond that it was an error to promote this agenda in historical context, are unclear.]. At least since the passage of the first peacetime federal income tax law about 120 years ago, redistribution of wealth has been a (maybe the) primary item on the left populist/progressive/liberal agenda, and has been implicitly accepted to some extent by all but the most libertarian Republicans as well. Barack Obama is undoubtedly liberal, and his background is in political community organizing in poor communities. Is it supposed to be a great revelation that Obama would like to see wealth more "fairly" distributed than it is currently?

It's true that most Americans, when asked by pollsters, think that it's emphatically not the government's job to redistribute wealth. But are people so stupid as to not recognize that when politicians talk about a "right to health care," or "equalizing educational opportunities," or "making the rich pay a fair share of taxes," or "ensuring that all Americans have the means to go to college," and so forth and so on, that they are advocating the redistribution of wealth? Is it okay for a politician to talk about the redistribution of wealth only so long as you don't actually use phrases such as "redistribution" or "spreading the wealth," in which case he suddenly becomes "socialist"? If so, then American political discourse, which I never thought to be especially elevated, is in even a worse state than I thought.

UPDATE: At Overlaywered, Walter Olson and Ted Frank (in the comments) talk about how all this might impact Obama judicial nominations. There are two basic possibilities. One is that Obama might believe that appointing far left Justices to the Court would be unlikely to accomplish much in the long-term, and could ultimately harm the progressive agenda, and his own presidency, by reviving "unelected judges imposing their will on the American people" as a Republican campaign theme. The other possibility is that Obama, intoxicated by victory, and having the very healthy ego that all successful politicians have, will decide that the election of a very liberal African-American president, along with large Democratic majorities in the House and Senate, signals that the social and political winds have shifted sufficiently that the Supreme Court could successfully launch an activist liberal agenda, and he will nominate justices accordingly. But there is nothing in either Obama's radio remarks, his voting record in the Senate, or his public statements on judges to suggest that he objects in principle to the equalitarian "living Constitution" of Brennan, Warren, et al., and there is much to the contrary.

FURTHER UPDATE: Obama advisor Cass Sunstein tells Politico's Ben Smith that Obama wasn't referring to redistribution of wealth in general,but "to the narrower forms of redistribution -- education, legal filing fees, legal representation, and other issues --that had been discussed in the case Obama cited and in discussions around it.

That's very hard to swallow, if one looks at the transcript.

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I'd be okay.

But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it's been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can't do to you, it says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn't shifted. One of the I think tragedies of the civil rights movement was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change and in some ways we still suffer from that.

Later, a caller asks, "is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to change place?"

Obama responds, "You know, I'm not optimistic about bringing about major redistributive change through the courts."

Related Posts (on one page):

  1. Obama on Redistribution of Wealth:
  2. Obama on the Warren Court:

Obama on the Warren Court: The Drudge Report is blaring this audio of what appears to be an interview of Barack Obama in 2001 discussing the Warren Court and economic redistribution. Based on the accompanying video, it seems that the person who posted the audio is trying to paint Obama as a radical: The suggestion is that the audio shows Obama lamenting the Warren Court's lack of radicalism in the area of economic redistribution.

   Based on the audio posted, however, I find it hard to identify Obama's normative take. When Obama says that he's "not optimistic" about using the courts for major economic reform, and when he points out the practical and institutional problems of doing so, it's not entirely clear whether he is (a) gently telling the caller why the courts won't and shouldn't do such things; (b) noting the difficulties of using the courts to engage in economic reform but not intending to express a normative view; or (c) suggesting that he would have wanted the Warren Court to have tried to take on such a project.

   My best sense is that Obama was intending (a), as his point seems to be that the 60s reformers were too court-focused. But at the very least, it's not at all clear that Obama had (c) in mind. It doesn't help that only parts of the audio are posted: Given the obvious bias of the person who edited the audio, it's probably a decent bet that the rest of the audio makes the comments seem more innocuous than they do in the excerpts. Of course, there's the separate point about Obama's interest in "major redistributive change" more generally: It would be interesting to know if Obama endorsed that goal in the interview, and what specifically he had in mind.

Related Posts (on one page):

  1. Obama on Redistribution of Wealth:
  2. Obama on the Warren Court:

Sunday, October 26, 2008

Halloween Party:

Photo credit: Michael Abramowicz.

Will the Financial Crisis Spillover from Wall Street to Main Street?

This new paper from the Minneapolis Fed says no (at least of the first week of October).


I should clarify that this is not any sort of official publication of the Minneapolis Fed, but rather it is a paper by independent scholars published through the Minneapolis Fed Working Paper series. My apologies for any confusion.



So why is a butterfly called a butterfly? I was wondering, so I looked it up. The OED reports that the origin is unknown, but notes that Hensleigh Wedgwood's mid-1800s A Dictionary of English Etymology linked it to the old Dutch boterschijte, which apparently referred to the color of the insect's excrement. The Online Etymology Dictionary notes this theory as well, though also reports two other possibilities -- "the old notion that the insects (or witches disguised as butterflies) consume butter or milk that is left uncovered" and "less creatively, simply [that] the pale yellow color of many species' wings suggests the color of butter."

All I can say is that if boterschijte is the source, I'm glad the word has evolved since then.


Communist Takes Advantage of Private Property Rights:

In this funny Bill O'Reilly segment, self-proclaimed "communist" William Ayers uses private property rights to get rid of a Fox News reporter who was pestering him. When the reporter repeatedly tries to approach Ayers at his house, Ayers tells him to go away, saying "this is my property." Eventually, Ayers calls the police, who come and instruct the reporter to get off Ayers' land. The irony, of course, is that as a communist, Ayers is opposed to private property rights.

My point, however, is not to criticize Ayers for his hypocrisy. Hypocrisy is a minor offense compared to his real crimes. Rather, I want to emphasize that this is a small example of how property rights play an important role in protecting unpopular people. Private property gives minorities with unpopular views, lifestyles, or identities, a secure space in which they are protected from the hostility of the majority. Tom Palmer's excellent post on the way in which the rise of private property rights has increased freedom for gays in China is an interesting recent example.

In that respect, property rights play a role similar to that of freedom speech. But while the importance of freedom of speech in protecting unpopular minorities is widely understood, many people still believe that property rights mostly benefit only the wealthy, powerful, and popular. As the very different examples of Ayers and the Chinese gays demonstrate, that is not so.

Of course some of those who take advantage of property rights are far from admirable, as is certainly true of Ayers. But the same can be said for free speech rights. Many of the Supreme Court's most important First Amendment precedents vindicated the rights of communists, KKK leaders, and others who would surely abolish freedom of speech for the rest of us if they ever had the power to do so.

UPDATE: I should thank co-blogger David Bernstein for sending me the link to the video of Fox's attempt to interview Ayers.


Brig. Gen. Hartmann Under Investigation:

The LA Times reports that Brigadier General Thomas Hartmann is under investigation for allegedly interfering with the prosecution of enemy combatants held at Guantanamo Bay.

The Air Force is reviewing allegations that Hartmann bullied prosecutors, logistics officials and others at Guantanamo -- resulting in cases going to trial that were not ready and the prosecution of at least one individual on charges that were unwarranted -- and assertions that he advocated using coerced evidence despite prosecutors' objections.

It also is looking into allegations that Hartmann made intentionally misleading statements, both in public and during the Guantanamo tribunal proceedings, in an effort to downplay the direct role that he played in the overall prosecution effort and in several cases, according to interviews with military lawyers.

A second investigation, being conducted by the Department of Defense's Office of the Inspector General, was sparked by the complaints of at least two military officials about Hartmann's allegedly abusive and retaliatory behavior toward them within the Office of Military Commissions. That office oversees the prosecutors and defense lawyers in the terrorism trials taking place at the U.S. naval base at Guantanamo Bay, Cuba.

Readers may recall that Col. Morris Davis, the chief prosecutor at Guantanamo, resigned last spring alleging, among other things, that Hartmann had improperly interfered with the trials of enemy combatants. I blogged on Davis' resignation and related events here and here.


Sunday Song Lyric: Guns N' Roses' Appetite for Destruction is easily one of the best hard rock albums ever. It was raw an exciting, at times nearly over-powering, and occasionally outright offensive. It is a classic.

The band -- or, at least a band featuring Axl Rose and using the GNR name -- has been due to release a new album, Chinese Democracy, for years. Skepticism that the album would ever arrive prompted Dr. Pepper to promise a free soda for every American if it were actually released in 2008. Well, it looks like the album will actually drop next month (and Dr. Pepper will keep its pledge).

Will the new album be any good? I'm skeptical -- Axl seems pretty washed up at this point -- but stranger things have happened. The title track to Chinese Democracy can be heard here or here, and the lyrics can be found on this site. A taste:

You think you've got it all locked up inside
And if you beat 'em enough they'll die
It's like a walk in a park from a cell
And now you're keeping you're own kind in hell
And if you're Great Wall rocks blame your self
While they all reach out for you hand/help?
And we're out of time . . .