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Thoughts from San Diego on Law, Politics, and Culture
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June 5, 2004
Communion Kerfuffle By Tom Smith Is self-linking bad form in the blogosphere? God knows, self-citation is the rule in legal scholarship. Anyway, here's my latest outburst on the Volokh Conspiracy. June 1, 2004
We're not here By Mike Rappaport We are guest-blogging at the Volokh Conspiracy until next week. Come read us over there. The Right Question By Mike Rappaport Andrew Sullivan asks the right question: If someone had said in February 2003, that by June 2004, Saddam Hussein would have been removed from power and captured; that a diverse new government, including Shiites, Sunnis and Kurds, would be installed; that elections would be scheduled for January 2005; and that the liberation of a devastated country of 25 million in which everyone owns an AK-47 had been accomplished with an army of around 140,000 with a total casualty rate (including accidents and friendly fire) of around 800; that no oil fields had been set aflame; no WMDs had been used; no mass refugee crises had emerged; and no civil war had broken out... well, I think you would come to the conclusion that the war had been an extraordinary success. And you'd be right. Yes, there are enormous challenges; and yes, so much more could have been achieved without incompetence, infighting and occasional inhumanity. But it's worth acknowledging that, with a little perspective, our current gloom is over-blown. Dershowitz gets it By Tom Smith In the true bipartisan spirit of the The Right Coast, I pass along this link (via instapundit) in which Alan Dershowitz gets it about fighting terrorism.. As I shall keep repeating as long as I feel like it, people who like civil liberties should be in favor of a very vigorous fight against terrorism, because the worst thing that could happen to civil liberties in the US is another major attack on US soil. It could get so we have as few as the French. Worrisome car seat safety report By Tom Smith This troubling report on Canadian data suggests kids should be in booster seats until they are 10 years old or so. May 31, 2004
Steve Hinkle and the First Amendment By Gail Heriot Now and then justice really does triumph. Some of you might remember Steve Hinkle, the Cal Poly student who was ordered by university officials to write an apology to his fellow students or face stiffer penalties. What had he done to cause offense? He posted a flier advertising a College Republican event. Yes, that's it, he posted a flier--and a pretty inoffensive one at that. Fortunately, through the efforts of the Center for Individual Rights (CIR) and the Foundation for Individual Rights in Education (FIRE), Hinkle's First Amendment rights have been vindicated in federal court. Hinkle was attempting to publicize a talk by Mason Weaver, a Southern California radio personality and author of the book, "It's OK to Leave the Plantation." Weaver, with whom I've shared a podium in the past, is one of those most-reviled creatures on college campuses today--a Black conservative. He states on his web site that he believes in "independence, not co-dependence" and "equal rights, not special rights." You can agree with him or not, but these views are pretty much in line with the average American's (and, yes, they are pretty much in line with mine). The flier posted by Hinkle simply contained Weaver's name and photo, the title of his book, and the time and place of the talk. When students at the campus multi-cultural center saw Hinkle distributing the flier, however, they called campus police to report "a suspicious white male passing out literature of an offensive racial nature." Hinkle was put through a seven-hour hearing after which he was found guilty of disruption and ordered to write letters of apology to the offended students. He was told he risked stiffer penalties up to expulsion if he refused. This is pretty scary stuff. When CIR and FIRE came to Hinkle's rescue, Cal Poly made it clear that it would not back down easily. A lawsuit was therefore brought, which, after six months of litigation was finally settled. Cal Poly agreed to expunge the offense from Hinkle's record and pay $40,000 in attorneys' fees. I'm happy with the result (although having the Cal Poly officials write Hinkle a letter of apology would have been a nice touch). Obviously, cases like this shouldn't happen, but they do, so at least it's comforting to know that there are organizations like CIR and FIRE out there to jump in. Fortunately for Hinkle, he knew enough to call them. There is one thing, however, that troubles me. Beverly Eakman writes about the Hinkle settlement and makes a comparison between Hinkle (with whom she is rightly sympathetic) and John Rocker. She writes, "Think of the numerous phony hate-speech accusations that have been hurled at individuals over the past decade for spouting only controversial opinions - some of them, like baseball star John Rocker's, admittedly less tactful than others." It's worth noting that for many reasons the Rocker case was quite different from the Hinkle case. Rocker made a few boorish statements--statements that surely were protected by the First Amendment--but which were in fact likely to offend a significant number of people. And, unlike Hinkle, he was not punished by any governmental authority for his statements. Instead, two things happened. First, a number of people--rightly or wrongly, but in the full exercise of their own First Amendment rights--responded that John Rocker is a jerk. That's not an abridgement of the First Amendment. That's the First Amendment in all its glory; everybody gets their say, the good, the bad, and the ugly. Second, the Atlanta Braves--Rocker's employer--required him to undergo psychiatric treatment. Such an action may again be wise or foolish, but it is not a violation of Rocker's First Amendment rights. The Atlanta Braves are in the entertainment business. Their profits depend upon their ability to stay in the good graces of the their fans. They are thus perfectly within their rights to demand that their players refrain from making statements that will be regarded as boorish in public by any significant number of people, even if those statements are protected by the First Amendment and hence would be protected againt government interference. One could argue about whether the Braves over-reacted, but the law does not forbid an employer to over-react. Saudi Arabia By Mike Rappaport An interesting piece on Saudi Arabia and its history by Daniel Pipes. (Hat tip: Southern Appeal.) I suppose it makes the best case for the Bush Administration policy concerning that troubled and troubling nation. May 30, 2004
Philosophers take heart By Tom Smith This should make philosophers feel better about how they spend their time. Was the classical age classical? By Mike Rappaport According to Tyler Cowan: "In the time of Beethoven people ate and drank during classical concerts. They played cards and sometimes brought their animals. A contemporary non-profit, dependent on donations and government grants, is unlikely to take such steps." More on Martial Virtues By Mike Rappaport Stephen Bainbridge (here and here) and Larry Solum's discussion of martial virtues raises at least two important questions. The first question is whether we need more martial virtues in our society. The second question is how should we answer the first question. Presumably, how we answer the second question turns on our moral theory. As a consequentalist, I know how I would attempt to answer it. I would look at the effects of different virtues and try to determine whether martial virtues (or more precisely more emphasis on martial virtues) would have good consequences. This is surely a hard question, but to my mind it is the right question -- that is, it focuses on the considerations that seem relevant to answering the question. How would a follower of virtue ethics or deontological theories answer this question? I am not so sure. Here is my guess as to part of the answer for (some types of) virtue ethics. One would ask a virtuous person whether martial virtues are genuine or important virtues. This seems in part circular -- when selecting the virtuous person, do we select one who displays martial virtues or not? -- but only partly so. Perhaps, Larry Solum or some other follower of this approach can help me with this issue. It is also not clear that deontological theories have a clear answer (or a single answer). Presumably, if one's deontological theory had a place for virtues, perhaps as a means of promoting the following of moral principles, then one would have to ask whether martial virtues promoted that function. But if one's deontogolical theory did not have a place for virtues, then whether we should promote martial virtues might not be a moral question at all. Low Carb Diets have arrived By Tom Smith This month's issue of the Annals of Internal Medicine is as good an indicator as any that low carb diets have arrived, have become, that is, medically respectable. It's not clear that they work via all the metabolic hocus-pocus Dr. Atkins spoke about, or whether they just work by reducing caloric intake because people using them are less hungry. But who cares? Another one bites the dust By Mike Rappaport The decimation of Hamas continues. Who says you can't win a war against terrorists? May 29, 2004
Good bleat By Tom Smith This is good. Are blogs unique in the way they can gracefully combine public and private? The Martial Virtues By Mike Rappaport Some extremely interesting posts on the Martial Virtues by Bainbridge, Solum and then Bainbridge again. I am genuinely uncertain about what I think the right answer is. May 28, 2004
An outrageous example of ethnic profiling By Tom Smith The latest FBI/DOJ call to be on the lookout for suspected terrorists is an outrage. Not only, as the press has recently revealed with their characteristic courage, is the government issuing warnings without being certain that there will be an attack, but, as this website clearly demonstrates, they are engaged in egregious ethnic profiling. Among the suspected terrorists, there is not a single elderly Asian person. Pacific Islanders are conspicuously absent. Not a single African-American. And only one woman, and she depicted in a traditonal headscarf that just screams stereotype, not to mention the men's headwear. Is this some kind of conspiracy? Are we to believe that the suspected terrorists are really all of similiar ethnic and/or religious persuasion. This is the stuff of right wing fantasy, not real life. Just an unrelated idea. I think Aafia needs a new look. Now she has too much of that, Nurse Sought in 27 Suspicious Deaths thing going. My picture is, cut the hair, do something with more body, and maybe a turtleneck, hip glasses. Just a thought. All the news that fits, we'll print By Tom Smith Were the prisoners recently released from Abu Ghraib attacked, or was that just celebratory gunfire? The possibility that their fellow countrymen might value the prisoners' lives even less than the evil US Army is a possibility The Times spares us thought of by not including the incident in their account at all. Perhaps this is what Paul Krugman means when he celebrates today the liberation of the press he thinks he is witnessing from "the tyranny of even-handedness." A nice turn of phrase. Krugman may have a talent, not only for mathematical models of international trade, but also for Orwellian slogans. Where does one get, I wonder, having escaped this tyranny? To the republic of bias? The rule of prejudice? The commonwealth of fanatics? He and Al Gore should talk it over. As I understand Krugman's economics, which isn't well, I gather he's not a big one for optimal equilibria. Being in something of an eccentric orbit himself, perhaps they don't appeal to him. But I think, or hope anyway, that an equilibriating process may be at work in the press, by which as they liberate themselves from "the tyranny of even-handedness" they also separate themselves from all but their most rabid readers. Most people are not geniuses, but they can figure out most stories have two sides. Spammer to go to Jail By Mike Rappaport The good news is that a spammer has been sentenced to jail. The bad news is that it is only for 3 1/2 years. (Hat tip: The Volokh Conspiracy). May 27, 2004
Tit for Tet By Mike Rappaport That's the name of Ann Coulter's new column, which is excellent. The column has the usual mix of a great point, some slashing jokes at the expense of liberals, and I am sure some exaggerations (although I am not certain I can find them). Here are two excerpts. First: We have liberated the Iraqi people from a brutal dictator who gassed his own people, had weapons of mass destruction, invaded his neighbors, harbored terrorists, funded terrorists and had reached out to Osama bin Laden. Liberals may see Saddam's mass graves in Iraq as half-full, but I prefer to see them as half-empty.Second: And yet the constant drumbeat of failure, quagmire, Abu Ghraib, Bush-lied-kids-died has been so successful that merely to say the war in Iraq is going well provokes laughter. The distortions have become so pervasive that Michael Moore teeters on the brink of being considered a reliable source. Babies By Tom Smith I must say, there's a lot to be said for having a baby in your forties. I was looking at 7 month old Mark the other day and said to my lovely wife Jeanne: "He's beautiful. Just perfect." "I know." "And to think you made him!" "I know." "That was the wrong answer." "I know." He is an extremely agreeable infant. He smiles, laughs and rarely cries. He is spectacularly fat, but in a cute, appealing way. He has magnificent thighs. He has learned how to scooch, backwards. A genius, clearly. He's a great gazer. World class staring contest material. You just want to eat his ears. The dogs like him. How could they not? With your first baby, you're too anxious, at least if you're me, to enjoy the process very much. It's all rather scary. Where did that giant staple go? Could Luke have swallowed it? You freak out the first time your child eats a large bug. Later, you just see the little grasshopper legs sticking out and think, isn't that darling? I still remember my first diaper. In the hospital, Jeanne and I stood staring at the pink object until the nurse barked, "Well, change him!" She'd probably had enough hapless yuppies for one day. It was gross. Now, I sort of look forward to a big messy poop. Pipes are working! Good baby! Last night, Mark slept on my chest while I watched part of The Transporter on HBO. Terrible movie, but a great baby. He woke up a few times, and we looked at each other, he as if to say, "Oh, it's the large, stratchy one without nipples. Time to sleep more" and rolled off again into slumber. Great little sleeper. A friend of ours calls her forth child (also a boy) her desert baby, and that's apt. You don't really need it, but why not. Mark is about to enter that stage immediately before rug rat technically known as danger squid. This is where they can squirm at a high rate of speed just about anywhere in search of objects to put in their mouths. The calm before the storm. I'll keep you posted. Good News on Spending By Mike Rappaport I'll believe in real spending cuts when I see them, but this is at least a good sign: The White House put government agencies on notice this month that if President Bush is reelected, his budget for 2006 may include spending cuts for virtually all agencies in charge of domestic programs, including education, homeland security and others that the president backed in this campaign year. Justice O’Connor and Federalism By Mike Rappaport Recently, the Supreme Court decided another important federalism case, Tennessee v. Lane. In Lane, the Supreme Court held that Title II of the ADA (that is, the Americans with Disabilities Act) was authorized by section 5 of the 14th Amendment. By contrast, in a 2001 case, Board of Trustees of the University of Alabama v. Garrett, the Supreme Court had held that Title I of the ADA was not authorized by the 14th Amendment. So the 14th Amendment authorizes Title II but not Title I. Why? Because Justice O’Connor says so. But why does Justice O’Connor say so? Always a good question, but this time, at least, I think there is answer. In my view, Justice O’Connor is employing the following federalism principle: The Constitution should not be interpreted to completely eviscerate federalism limitations, but short of that Congress can do pretty much what it wants. In Garrett, the justification for the legislation was that it enforced the 14th Amendment rights of the disabled, but the disabled are not specially protected by that Amendment in the way that racial minorities and women are (that is, laws affecting the disabled are subject to the lenient rational basis scrutiny applicable to all ordinary legislation). If Congress could legislate in those circumstances, then a great range of federal laws could be justified under the 14th Amendment and federalism would mean nothing. This same analysis serves to explain why federalism principles prevailed in certain 14th Amendment cases (such as Kimel involving the aged), but not others (such as Higgs involving women, who are entitled to more protection under the Amendment). One exception is United States v. Morrison, where the Court struck down a law even though it was protecting women. But there is a reason for this exception: the legislation in Morrison was much broader in another way – it applied not merely to the state but also to private actors – and allowing it would have left federalism pretty limited. The Supreme Court’s new decision, Lane, also fits this pattern. In Lane, the Court found legislative authority under the 14th Amendment but only in one circumstance – when it was necessary to protect the right of access to the courts. This constitutional right of access serves to distinguish the legislation in Lane from ordinary legislation not implicating constitutional rights. Thus, Justice O’Connor could feel that her vote was not eviscerating federalism, since she was only approving laws that protect constitutional rights, not all ordinary legislation. In the end, then, Justice O’Connor’s decisions in this area may not be entirely arbitrary, but they are extremely narrow. While one can bemoan the narrowness of her view of federalism, critics of the Rehnquist Court’s federalism decisions cry bloody murder every time she and the Court strike down a statute. To this day, many of these critics have never met a federal statute that they believe violates federalism principles. To read their writings, one would never know that federalism was originally one of the basic structural features of the Constitution. WMDs By Mike Rappaport Despite the meme that there were no WMDs in Iraq, many questions remain. A good discussion by Bill Kristol. |