Imposed Silence

Well it looks like last week's blogging took an even greater toll on my laptop than it did on me. My poor little memory card burned out, so I'll be out of commission for 1-2 more days while IBM ships me a new one.

UPDATE: Well I got the new card, and it didn't work either. Now they think it's the memory card controller. So the whole rig has to go Airborne Express to California or wherever. Ugh.

At least the tech support is awesome. Too bad the computer couldn't handle my hyper-blogging.

Anyhow, the imposed silence will continue a bit longer... I usually blog from work at the law school, but without a laptop that's a lot more difficult (plus I'm not browsing the web finding all kinds of neat stuff to share). It's actually a good week for this to happen, as all I can think about are the three grades I've not yet gotten (the deadline to turn them in was today, so I should know within 24-48 hours).

Taking a Deep Breath

Alright, I'm taking today and tomorrow off from blogging. This week's Supreme Court decisions sent me into hyper-blogging and I need a little break.


This one was too good to pass up:

Young Boys' Wankdorf erection woe

Uh huh.

Second Thoughts

I'm having second thoughts about how much I like Kennedy's opinion. I certainly like the outcome, but let's set that aside. I'm glad it was decided on privacy grounds, but I don't think Kennedy really comes out and says what he ought to have said to truly ground this in the realm of substantive due process.

Larry Solum notes that:

Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me.

But that's exactly one of Scalia's attacks. He's arguing that the majority, whatever they may think, did NOT make a fundamental rights decision:

...nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual conduct were a fundamental right.

Now Scalia may just be acting deliberately obtuse, but I think what he's really saying is that the traditional application of 'fundamental rights' protection required finding something to BE the fundamental right. In this case, as Scalia points out, Kennedy merely shows that ALL sodomy was illegal throughout our history, not just homosexual sodomy. That doesn't support a 'fundamental rights' claim though... after all, what right is it that we're talking about?

Consider the Glucksberg standard for substantive due process claims:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition". Second, we have required in substantive due process cases a "careful description" of the asserted fundamental liberty interest.

So Scalia is shaking his head and wondering why the majority doesn't even mention this.

If it is NOT a fundamental right, then it is supposed to get the deferential 'rational basis' test. Scalia thinks the law clearly has such a basis, and the majority never really addresses it, since they seem to think they are doing fundamental rights analysis.

Eric Muller is equally puzzled:

That Justice Kennedy sure can write a perplexing opinion! This reads like a companion piece to his opinion for the Court in Romer v. Evans: It reads great, but when you get to the end of it and try to fit it into any of the Court's established frameworks of review (strict scrutiny, rational basis, etc.), you're left scratching your head. I'll have to think for a while about whether Kennedy's doing this on purpose in these cases about homosexuality; surely he knows what a standard of review is and how to apply it, so he must be up to something. I'm just not sure what.

What Comes Around...

CNN has more good news:

Texas jury convicts Chante Mallard of murder in death of man embedded in windshield of her car after accident. Details to come.

Smell that? That's justice.

Silly Errors

Looking at the MSNBC story again, I note this rather blatant error in their sub-heading:

Justices say it violates Constitution�s equal protection clause

Well, no. O'Connor said that. The majority said it violates the Constitution's Due Process Clause. Though both located in the 14th Amendment, they are quite different. Just for the record:

Due Process Clause (This is where we get the right to privacy that protects abortion rights and now the right to sodomy, and where the old Lochner line of cases protected economic contract/property rights):
[No state shall] deprive any person of life, liberty, or property, without due process of law

Equal Protection Clause (This is where we get the bans on racial/gender classifications):

nor deny to any person within its jurisdiction the equal protection of the laws

OK, now I feel better.

Reactions to the Dissents

Just as I had sympathy with Scalia's dissent in Romer, I once again find little to disagree with in his dissent here. I still don't agree with his conclusions, but his objections all need to be understood and internalized.

His analysis of the stare decisis incongruitites between Lawrence and Casey are hard to hard argue with, but then I didn't think those were necessary for upholding Roe in Casey. Still, I think it essentially amounts to a pretty strong attack on Kennedy, and to a lesser extent Souter (since O'Connor doesn't want to overturn Bowers).

As some commenters noted and Scalia discusses, it is now unclear how laws against incest et al can be distinguished (though his inclusion of the laws against masturbation caused a raised eyebrow). That is a valid concern, and I'm sure it'll be litigated soon enough. (Volokh has more).

I do welcome and generally adhere to his attacks on O'Connor's concurrence.

In the end Scalia and I just differ on the proper role of government and the courts. Despite this philosophical difference, I think his legal analysis is impeccable and superior to his colleagues, and I feel regret that he and I don't share more commonality in our philosophies.

I think Scalia gets more than his share of attack from people who disagree with his methods and opinions. After a year of law school, and particularly a semester of Constitutional Law, I think Scalia is one of my favorite justices. I almost never agree with him, but I think he is almost always upfront and open with his reasoning. This is something I find pretty lacking in the moderates (particularly O'Connor). That certainly applies to his discussion of the 'homosexual agenda'. Nothing he said in that entire passage struck me as incorrect. There certainly is such a thing, as laid out quite well here. It just so happens that I agree with that agenda. But that doesn't mean I should pretend I don't, or pretend it doesn't exist.

Thomas' dissent is also appreciated, as it gives us a bit more insight into his personal feelings on the matter, something that is often hard to gather from his strict adherence to originalism.

UPDATE: Upon re-reading Scalia's "homosexual agenda" passage, I still agree with almost all of it. I would argue a bit with his assertion about the evidence concerning how "mainstream" the pro-gay rights movement is. It's certainly a contestible point. The only real difference is that I support that agenda, while Scalia does not think it belongs in the judicial realm. I don't think that makes him a bigot.

Larry Solum does note what I thought the weakest element of Scalia's dissent:

Scalia charges the majority with inconsistency, and devotes a substantial portion of his dissent to Roe v. Wade, clearly weakening the dissent as an intellectual matter.

Solum has another objection, which I respond to here.

Initial Reaction

My first reaction to reading Kennedy's majority opinion is actually a bit off-topic. I notice how strongly he relies upon Casey, and I think this is a very good sign for pro-choice advocates who may have been concerned that Kennedy had changed his mind after Stenberg.

I like the opinion. I think privacy grounds were the right way to handle this case, and I think Kennedy does it admirably. If you don't believe in the right to privacy, you'll find no solace in the opinion. But if you do, then I think Kennedy persuasively explains why this is not really much of an extension of what that right already protects.

O'Connor once again shows herself to be, quite likely, my least favorite justice. She wants to split the difference, again, and do so on the narrowest of grounds. Just as I'd feared the whole court might do, she wants to apply an equal protection "rational basis plus" test, specifically citing Cleburne, Moreno and Romer as the only cases where this has been done. She does give a better explanation for the exceptionality of those cases than has been done before, and for that I give her some credit. However, as it is an exception I don't think should exist as such, the credit is limited.

On to the dissents.

The Results of My First Prediction

I said 7-2 on privacy grounds, not equal protection. MSNBC says:

The ruling was based on arguments by the plaintiffs' attorneys that because the two gay men who brought the case were arrested in a private residence while engaging in consensual sex, the raid amounted to an unconstitutional invasion of privacy.

The justices did not address a second legal point raised by the plaintiffs, that by mandating disparate treatment for two classes of citizens, the statute violates the 14th Amendment's equal protection clause.

The vote was 6-3 (though apparently 5-4 on the privacy issue; see O'Connor's concurrence). Rehnquist was less concerned about the taint of being on the losing side than I had guessed.

UPDATE: Kennedy's opinion, O'Connor's concurrence (remember that she was in the majority in Bowers), Scalia's dissent, Thomas' dissent. I'll comment as soon as I've read them.

Remember this week when people say the conservatives control the court.

Paid Advertising

Does anyone else think it's suspicious that the Vault Guide to the Top 100 Law Firms is sponsored by 15 of the firms it profiles? I mean, imagine if Johns Hopkins and UCLA bought ad space in the US News Top College issue. Odd.


I've been mulling it over, and discussing it with my ConLaw professor, and I've decided the thing that most bothers me most about the Grutter decision was the lack of transparency in the majority opinion. The dissenters said what they really believed, and I think made a good legal argument against AA.

But the dissenters appeared persuasive not simply because of the strength of their underlying position. Instead, it was because the majority, and in a sense really just O'Connor, refused to admit that they were not going along with the trend set by Adarand, Croson and the other strict scrutiny restrictions on AA. By trying to make it appear that this decision fit perfectly well with the rest of the AA jurisprudence, O'Connor had to defend the position on the thinnest and weakest grounds. This left the dissenters to feed on her weak logic and poor application of precedent.

There's a reason that Powell was the lone author of the 'compromise' position in Bakke. It's bullshit. If you believe in affirmative action, you believe that the 14th Amendment allows it, and you ought not think it only constitutional if applied in a particular way, in a particular field, for a particular time. That's just not how the Constitution works.

Yet that's how O'Connor has defended the program. There are good arguments for the constitutionality of AA, and O'Connor raised none of them. Perhaps she wanted to continue her horrible trend of splitting-the-difference, or perhaps sought to avoid the appearance that she's just changed her mind. Either way, I think it's a wretched opinion that ends up supporting a policy without citing any of the actually persuasive arguments in its favor.

Faculty Alma Maters

Somewhere in the back of my head I harbor aspirations of some day teaching law, so I took a quick glance at where UVA Law's resident faculty got their law degrees:

Yale - 16
UVA - 15
Harvard - 8
Stanford - 4
Chicago - 4
Penn - 3
Michigan - 2
Columbia - 2
Duke - 2
Berkeley - 2
various - 1

No big surprises.

My First Prediction

I predict Lawrence v. Texas is decided on privacy grounds, not equal rights, and that it is a 7-2 decision overturning Bowers. I don't think Rehnquist will want one of his last big votes to be on the losing end of a decision that, in 50 years, will seem so inherently correct people will be amazed it was even litigated.

Anyone else want to take a stab at it?

Course Selection

The UVA Law fantasy draft begins on Monday for 2Ls, so I've been trying to prepare my draft board. Here's my ideal course schedule for next year (course credits in parentheses):

Fall 2003
American Legal History seminar (3)
ConLaw Ii: Speech and Press (3)
Evidence (3)
Foreign Relations Law (3)
Negotiating Institute (1)
Professional Responsibility (2)

Spring 2004
Constitutional History from Reconstruction to Brown (3)
Environmental Law (3)
Federal Courts (4)
Federal Criminal Law (3)
Trial Advocacy (3)

Fortunately there is a lot of depth at several positions, so if my top choices go fast, I have a lot of alternatives.

Horror Comic Books

Does anyone know the origins of this rather strange California law?

Every person who, as a condition to a sale or consignment of any magazine, book, or other publication requires that the purchaser or consignee purchase or receive for sale any horror comic book, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.

As used in this section "horror comic book" means any book or booklet in which an account of the commission or attempted commission of the crime of arson, assault with caustic chemicals, assault with a deadly weapon, burglary, kidnapping, mayhem, murder, rape, robbery, theft, or voluntary manslaughter is set forth by means of a series of five or more drawings or photographs in sequence, which are accompanied by either narrative writing or words represented as spoken by a pictured character, whether such narrative words appear in balloons, captions or on or immediately adjacent to the photograph or drawing.

I for one am quite flabbergasted.

Presumptions of Inferiority

I don't often disagree with what is posted over at TalkLeft, but this post on the AA decisions has stirred up an argument, and I'm on the other side. The focus is on the update to the original post:

Update: Clarence Thomas voted against affirmative action.

Well... so what? As I said in the comments, is anyone surprised at his vote? He has been opposed to AA since the day he got on the court... I certainly don't see how his vote merits individual mention, nor a specific update, unless it is to discuss some particular aspect unique to his opinions.

Several other commenters responded that since Thomas benefitted from affirmative action, it is hypocritical for him to oppose it now.

Well unless y'all know something about Clarence Thomas that I don't know, that just seems ill-informed. I've found nothing to suggest that Justice Thomas' grades and test scores weren't good enough to gain entrance to Yale without the help of affirmative action. Assuming otherwise puts exactly the stigma on Justice Thomas that he decries in his opinions against affirmative action (and now we see he does it with good reason and personal experience). Assuming that just because someone is black he benefitted from affirmative action is not only wrong, but condescending, paternalistic, and guaranteed to perpetuate, not alleviate the racial stereotypes in this country.

UPDATE: TalkLeft says that the link was just a part of the larger story, and I'll give her the benefit of the doubt. Those commenting to her post, however, continue to repeatedly allege that Thomas benefited from AA without giving any evidence of it. Until they do, I'm going to consider this the paternalistic racism that Thomas so strongly opposes, and I'm going to give newfound credit to his thesis.

UPDATE II: I did find evidence that Thomas benefited from AA, from a 7/14/91 article in the Orlando Sentinel. Though the article doesn't make clear that Thomas himself was a beneficiary of the program, it seems to be implied. It also mentions that Thomas seems to have admitted as much himself:

U.S. Supreme Court nominee Clarence Thomas was admitted to Yale Law School under an affirmative action plan to boost minorities to about 10 percent of the freshman class, a newspaper reported Sunday.

The Yale affirmative action program was adopted in 1971, the year Thomas applied for entrance, The New York Times said.

School officials told the newspaper blacks and some Hispanic applicants were evaluated differently than whites.

They were not admitted, however, unless they met standards to predict they could succeed at the highly competitive school, the Times said.

"We did adopt an affirmative action program and it was pretty clearly stated," said Professor Abraham S. Goldstein, dean of the law school from 1970 to 1975.

Goldstein said the school used a set of minimum standards based on college grades and test scores.

Thomas frequently has criticized affirmative action policies and advocated a colorblind society. However, he has also acknowledged that affirmative action helped him.

In a 1987 panel discussion at the Center for the Study of Democratic Institutions in Santa Barbara, Calif., Thomas said "ultimately, any race-conscious remedy is no good."

But while chairman of the Equal Employment Opportunity Commission in 1983, he said affirmative action laws were of "paramount importance" to him.


Check the news: Supreme Court upheld the Michigan law school AA policy and struck the undergraduate points system. Should make for interesting reading, and sounds like it will provide little or no resolution to the debate.

UPDATE: I've read O'Connor's majority opinion in Grutter and think that, while eloquent and heartfelt, it's pretty out of touch with the AA jurisprudence of the last twenty years. Ginsburg's concurrence had me laughing as soon as it quoted the Convention on the Elimination of Racial Discrimination. Kennedy's dissent is to the point, arguing simply that strict scrutiny was not applied. Rehnquist's dissent goes into quite a bit of detail in hammering the so-called "critical mass" theory, particularly by comparing how different minorities are treated by Michigan (e.g. how can a critical mass of blacks require 80-90 students, but a critical mass of hispanics requires only 40-50). Scalia's dissent is snide and probably correct, particularly his disgust at the new analysis that will have to take place in order to decide whether a particular AA program falls under Grutter or Gratz. Thomas' dissent is 31 pages and I'm not finished with it yet.

UPDATE II: I think Thomas' dissent is really quite brilliant. That's not to say I agree with it, but he at least covers all the relevant legal issues in a way that O'Connor does not. Perhaps O'Connor just couldn't find a way to justify the decision on recent precedent, and is thus making a move away from it. That might make sense despite her not acknowledging it (and pretending she's just following the not-really-precedent of Powll in Bakke), but pending my reading of Gratz I suspect she does not want to revisit any of the decisions of the 80s and 90s. If that's true, I think she really punted the most important issues in the case. Compare Thomas' discussion of the importance of higher education (and elite public law schools in particular) to O'Connor's brief assertion that education is just different from other fields. She may be right, but I think Thomas poses some serious challenges that go unanswered.


I tend not to talk too much about hit counts or Ecosystem rankings, because frankly I think it's a pretty self-absorbed thing to do. Today was a big day for this site though, as it was added to Kevin Drum's blogroll. This means a lot to me not because it signifies some status or popularity, but because Kevin's site has been a daily read for me since before I began this blog. As such, there's a certain coming of age aspect to it. This blog really has worked out for me. I've been able to stay committed to it and have been rewarded with a wonderful creative outlet and participation from readership and guest bloggers that keeps me intellectually stimulated on a daily basis. Thanks to all those that have visited even once, but especially to those who keep coming back and make this blog an important aspect of my intellectual life.

The Digital World

For a long time I was reluctant to purchase a digital camera. I had grown up using film and had spent enough time developing my own negatives and printing my own enlargements that I felt an attachment to that world. In addition, I became proficient with higher end SLR equipment, whose digital counterparts I still can't afford (though the prices are coming down dramatically). What swayed me was the realization that I ended up with rather few pictures of my college experience, because it was just too much effort to carry around a big SLR and then have the negatives developed and prints made. What I really needed was a camera that could go with me anywhere, and would be as hassle-free as pretty much everything else in my uber-digitized world. I shopped around for digital cameras, went to Circuit City to see how they all felt in my rather large hands, and became very fond of Canon's Digital ELPH series. If I was seeking to print the pictures, I would have gone for the 3 or 4 megapixel versions. As I really only wanted a camera for email/internet purposes, the 2 megapixel S200 fit the bill, and the order went through to Amazon.

Now that it's been through its first vacation, I can say I am quite satisifed. The images aren't razor sharp at their original 1600x1200 resolution, but resizing them to 800x600 leaves a very clear image at an ideal size for email. I really enjoyed the standard benefits of a digital camera, namely that we immediately knew whether the photo came out well (and could delete and retake the shot if not) and were able to take several hundred pictures to come out with the 50 or so that really illustrate our experience (and already have them, faster and cheaper than one-hour prints). I will say, however, that I think the niftiest feature of the camera is its panorama feature. This allows you to take a series of photographs (up to 360 degrees), each time showing in the LCD the edge of the previous photo (so that you know where to line up the next shot). When you get home, the included software helps you to "stitch" the individual photos together. The results are pretty impressive I think, and certainly far beyond anything I could do manually.

Relaxed, Refreshed

Well that was a very enjoyable little vacation. The bed and breakfast we stayed at was delightful... incredibly friendly hosts and overwhelming and delicious breakfasts. I highly recommend a visit if you're in the area. We also spent some time on Skyline Drive and the Shenandoah National Park, saw a dozen or so deer (including one that jumped in front of our car as we travelled 35mph along Skyline, causing 1) my heart to stop, 2) hard braking, and 3) a collision missed by ~12-24 inches), and enjoyed the sunshine that finally made an appearance this afternoon.

A Wee Vacation

My girlfriend and I are heading to a bed and breakfast for the weekend, so I won't be posting until Sunday. I'm sure my stellar guest bloggers will hold the fort while I'm away.

Word of the Day

Am I the only one that a) never heard the word "meme" before joining the blogosphere, b) think it is incredibly overused, and c) thought it sounded like the first half of Memphis?


Via Instapundit I find a series of lists of the top 10 influential blogs as chosen by popular bloggers. Anyone notice something strange? Glaser notes it in passing in the text, but here's a little help:

Andrew Sullivan thinks his blog is the most influential (though at least one other agrees).
Josh Chavetz is the only one who thinks Oxblog is in the top 10.
Joi Ito is the only one who thinks Joi Ito's Web is in the top 10.
Brendan Nyhan is the only one who thinks Tapped is in the top 10.
J.D. Lasica is the only one who thinks J.D.'s New Media Musings is in the top 10.
Elizabeth Spiers is one of only two who thinks her Gawker is in the top 10.
Dave Winer is one of only three who thinks his Scripting News is in the top 10.

That's right, only one of the eight did not list their own site. Credit to Jeff Jarvis for avoiding the self-promotion bug, and thus being the only of the eight linked in this post.

Yes, One Can Hope

Daniel Berkman at Red Weather says a prayer for our country:

I can only hope that the 22 percent who think that we've already uncovered WMDs are also the people who think Iraqis were involved in the 9/11 hijackings, and also part of the pluralirty of people that don't vote.



These past few days I've been listening to the soundtracks of The Royal Tenenbaums, Rushmore, and The Big Lebowksi. Those are three of my favorite films, and I always knew that one of the things I really enjoyed was the music. But it was not until I started listening to the soundtracks themselves that I realized just how brilliant the music selections were. I can't listen to Nico's "These Days" without seeing Margo and Richie's reunion, The Faces' "Ooh La La" without seeing Max and Miss Fisher dancing, or Kenny Rogers' "Just Dropped In" without seeing the Dude in Gutterballs.

That's some powerful music.

The Sea of Dreams

A quick excerpt I just read from The Black Flower, a book whose first 114 pages have been horrible and beautiful and heartbreaking in so many ways; this is Anna speaking to her young cousin who that day witnessed the horrors of their house being turned into a Civil War field hospital, and just awoke from a nightmare:

Dreams are the sea we are sailin on, dark and troublesome. But the ship is safe - a gallant ship and a brave captain. We are not afraid of the sea, so long as we have the ship under us...

Just lovely.

The Value of Counter-factuals

Kevin Drum has an interesting post on why the Sixth Amendment is more important than the Second. I haven't really thought about this question, but I don't have a problem with anything in his argument, nor is that the topic of this post.

The comments to Kevin's post got a little sidetracked, as comments sections are known to do, but moved in an interesting direction. Even I joined in when the discussion turned to the hypothetical situation in which America's military tries to takeover the country (an absurd possibility to my mind, I've yet to see a realistic explanation for how or why this might happen). This got me thinking about the value of hypotheticals generally, which reminded me a bit of Volokh's piece on slippery slope arguments, and finally led me to the question I want to raise in this post (finally, the reader says), which actually has nothing really to do with Calpundit's post in the first place.

How valuable are counterfactuals (i.e. alternate history hypotheticals) in an argument? It seems to me that they are used pretty often in common discourse and probably less so by academics. The first one that comes to mind was this joke during the latest Iraq war:

An American says to a Frenchman, "Do you speak German?"
The Frenchman responds, "No."
The American says, "You're welcome."

So the point you're supposed to take is that if America hadn't entered the war, Germany would have conquered Europe and France/England/etc would have disappeared forever. Now I support and accept the broader theme, which is that American intervention has not always been unwelcome by the French, and perhaps they ought to remember that.

But the method of argument, the counterfactual, bothers me a bit. First off, it is non-falsifiable. I can't prove that Germany wouldn't have permanently occuped France, but you can't prove that it would have.

To my mind, this is a rather fatal flaw all by itself: forgivable perhaps in meaningless rhetoric, but not in a real debate. Yet the real problem I have with counter-factuals is that they are almost always tremendous over-simplifications of complex situations. Staying with the Nazi Europe counter-factual, even the basic assumption that Germany would have won the war without American intervention is an easily contestible claim. Then there'd be the Cold War that never happened. That might have some hard-to-predict ramifications.

So my question is simply this: why do people resort to counterfactuals so often? Is it because we like non-falsifiable oversimplifications?

The Shah's Redemption

I stopped reading Vodkapundit shortly after I entered the blogosphere, but once in a while I check back in. Bad idea. Today he has this stupidity to offer:

For all his faults and tyranny, the old Shah turned out to be a decent man. When push came to shove, he left his country rather than fight to the bitter end.

And that makes him a decent man? I'm beyond amazed at this thinking. Perhaps it makes the Shah a bit less evil than if he'd gone out with bloodshed, but come on, surrender does not equal redemption. The Shah was a nasty man who ran a nasty government. The fact that we dislike those who replaced him even more does not change that fact, nor does the fact that he left power relatively peacefully.

The Economics of Milk

So here's a question for those whose knowledge of economics, unlike mine, did not end with AP Economics in high school. I was at the grocery store today and noticed that milk was on sale ($2.49 a gallon, down from $2.99). This struck me as rather strange, and got me thinking.

So my first question is, am I right in assuming that the profit margin on milk is probably small? My amateur logic assumes that the competitive market price could be pretty low because there are so many sources of milk, while still bringing in profits because it is such a high volume product.

On the off chance this thinking is correct, then taking almost 17% off the price would probably lead to a loss on the sale of that item. If so, why would they do this? One reason grocery stores put items on sale is to get people to give the product a try, hoping that they will continue to buy even after the sale is lifted. This seems an unlikely strategy to apply to milk, which would seem to already have a pretty stable demand. So the only thing I could think of is that they were selling milk as a loss leader. Does that sound right?

I know it's not a particularly interesting or complicated economic question, just one that I'd really like the answer to.

(By the way, all pints of Ben & Jerry's were $1 off... I bought 4 of the Half Baked frozen yogurt).

The ACLU and the 2nd Amendment II

There are some great comments to my original post on the ACLU and the 2nd Amendment, but I think the conversation got a bit off track and I want to clarify what the post was really supposed to be about.

I'm not trying to advocate a particular position on the 2nd Amendment, as my own is still pretty murky. Instead, what I'm trying to do is criticize (constructively, as it is an organization I love) the ACLU for not giving a sufficient explanation for their abandonment of the 2nd Amendment as a constitutional protection worth fighting for.

One of the most common responses in the comments was that the text of the 2nd Amendment is different from the others in the Bill of Rights because of its explanatory clause ("being necessary to the security of a free State").

But my argument is that the ACLU (and other liberal/libertarians) take that textual point (despite not being textualists), read it narrowly (despite not being strict constructionists), and thus justify a restrictive interpretation of the 2nd Amendment, in a way that would never be done with the other amendments.

If the issue were not gun rights, but speech or due process, that same text would be read broadly, e.g. couldn't the "security of a free State" include the need for self-defense against neighbors and/or invading armies, or the guarantee of an ability to hunt food?

I'm not suggesting that this is either the correct or most natural interpretation of that text, but what I wonder is why the same groups that read everything else broadly (e.g. a broad unenumerated right to privacy, a broad right to free speech, broad rights against self-incrimination and unreasonable search and seizure, and even required funding of the right to counsel, all of which I agree with by the way) not only refuse to do so for the 2nd Amendment but read it in such a way as to nullify it as a constitutional protection.


Erasmus at Civic Dialogues has a post comparing the ideological distribution of House representatives in the 91st Congress (69-70) to that of the 106th (99-00). In the 91st Congress, there is significant overlap between the two parties.

In contrast the 106th Congress graph's two mountains have virtually no overlap! The democratic plateau has disappeared and the republican mountain has moved farther right creating a distinct 'valley' between the mountains. It's a great illustration of how our politics has become polarized.

Now here's the problem: my understanding is that the ideology of about one third of the American electorate is right where this valley is!

What contributed to this polarization?

Here's the easiest part of the answer: Roe v. Wade. This clearly doesn't tell the whole story, but prior to that decision, conservative religious Protestants, particularly in the South, were not a very active political force. When Blackmun was writing his Roe decision, he was under the impression that it was only Catholics who would be upset at the outcome. He was obviously quite mistaken.

The post-Roe influx of the "Moral Majority" into the Republican party began the rightward drift of that party, but it wasn't until the 1990s, with the Christian Coalition (et al) and the Republican takeover of Congress that this group became dominant.

The other big shift has been on the Democratic side. While the Democratic ideology hasn't changed all that much in the last 40 years (look at Dick Gephardt), its membership has shifted. The Dixiecrats, who might have made up a chunk of that middle ground in 1969, are pretty much gone, replaced by Republicans who are also conservative on economic issues.

Those are the two contributions to polarization that immediately come to mind... I'm sure there are more.


I read four of Ibsen's plays (The Doll's House, Ghosts, Hedda Gabler, The Master Builder) and Chinua Achebe's Things Fall Apart this weekend, and can easily recommend them all.

Ibsen was a wonderful surprise to me. I've always liked literature about early individual females rebelling against the oppression of their male-dominated societies (Chopin, Cather), and to find a man writing such things in the nineteenth century is great. His Master Builder also conveys quite a sense of the struggles and futilities of male egoism, particularly the battle against time and aging.

Achebe also used themes of male egoism to good effect, but I was particularly struck by his descriptions of the appearance of the white Christian missionaries and colonists. What clicked for the first time was just how devious white settlers have been, both in Africa and North America. It was not simply a matter of brute force and cruelty. What the colonists did so tragically well was to divide the natives, undermine their traditional senses of kinship, community and justice, and play the sides against each other. This can be seen equally well in America (e.g. the French-Indian War).

So far the literature project has been quite enjoyable.

The ACLU and the 2nd Amendment

In a post below broadly praising the ACLU, I made a passing reference about that organization's continued denial that the 2nd Amendment exists. In comments, JoeF suggested that the NRA doesn't need any help on this issue. (Incidentally, I am a member of both).

Now there's no denying that the NRA has made defending the 2nd Amendment a main focus, and it is a very powerful group. But does anyone believe that the primary reason the ACLU doesn't do any 2nd Amendment advocacy (or even mention it on their website) is that the NRA already has it covered? I sure don't.

An organization whose motto is "Defending the Bill of Rights" ought not pick and choose which of those rights to defend. I'm not even demanding that they take a particular position on the 2nd Amendment. I just don't like that they pretend it doesn't exist.

For fun, I ran a search on their website for "the right to bear arms." The only relevant result:

The Bill of Rights to the U.S. Constitution

I think that's telling.

UPDATE: I spoke too fast. I dug a little deeper and found an archived position paper on the ACLU's website:

The ACLU has often been criticized for "ignoring the Second Amendment" and refusing to fight for the individual's right to own a gun or other weapons. This issue, however, has not been ignored by the ACLU. The national board has in fact debated and discussed the civil liberties aspects of the Second Amendment many times.

We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

I don't think that's an entirely undefendable position, though I think it suspicious that the ACLU of all organizations would consider one of the amendments to be granting a collective right. I am glad to hear at least that it is a topic that has been frequently debated. Still I do have problems with some of their reasoning:

Unless the Constitution protects the individual's right to own all kinds of arms, there is no principled way to oppose reasonable restrictions on handguns, Uzis or semi-automatic rifles. If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

But wouldn't this apply equally to speech? Can you imagine the ACLU making this its basic position on the 1st Amendment?

Unless the Constitution protects the individual's right to engage in all kinds of speech, there is no principled way to oppose reasonable restrictions on newspapers, protests, or flag burning. If indeed the First Amendment provides an absolute, constitutional protection for the right to freedom of speech, then it must allow individuals to cry fire in a crowded theater, commit libel and defamation, and threaten and harass with impunity. Yet few, if any, would argue that the First Amendment gives individiuals the unlimited right to freedom of speech. But as soon as we allow governmental regulation of any speech, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict speech, but rather what constitutes a reasonable restriction.

That sounds about right, but you don't see the ACLU giving up its strident defense of the 1st Amendment. I think there's obviously something else going on here.

Fair Play

Kenn at Cogicophony sums up my feelings on the judicial nominations process:

[I]f the President makes his choices on ideological grounds, why shouldn't the Senate examine that ideology? It seems to me that both parts of a judge's credentials are examinable. Why does the Senate have to be ensconsed in an Ivory Tower while the President gets to pick the judge most likely to fit his political views?

The level of disingenuity on both sides of the process was galling to me, but none moreso than the claim that the Senate cannot take a judicial nominee's political views into account when advising and consenting.

I Did Not Know That

Hard to believe it's been 10 years since Justice Ruth Bader Ginsburg was appointed to the Supreme Court (I was 12!), and here is a neat little tidbit I was ignorant of:

Ginsburg was formerly the ACLU's general counsel and served on its board of directors.

Very cool. I've long been a fan of the ACLU, even working as an intern in their Utah office in high school. I'm not 100% onboard with their death penalty stances, nor do I think it behooves a Bill of Rights advocacy group to ignore the 2nd Amendment, but overall it's easily among my favorite political action organizations.

WTC Architecture

Daniel Berkman over at Red Weather (one of the new magistrates on the blogroll) has an interesting post about the importance of architecture, the potential of the WTC site, and how it might be squandered:

The rebuilding of the WTC proposed an architecture that had the power to change the way people thought about space, and the way they thought about their lives... The way people wanted to talk about the WTC competition at dinner parties reflected a new prominence for architecture in the national discourse.

But architecture is a process. It is a long process and things change... The Civic Alliance to Rebuild Downtown New York now says that Larry Silverstein, the developer in charge of the WTC site, plans to change the proposal to include among other things a Mall(a Westfield Shopping town to be precise), a fountain on the footprint site, and a new bland office tower(or office towers).

Oh well. Here's to hoping that architecture as art isn't really dead.

UPDATE: Here's a follow-up at Red Weather.

Litmus Tests

Litmus tests have been in the news a lot lately, particularly as the judicial nominations process became so heated.

I've been thinking about whether I would use any litmus tests myself when I vote, and it turns out that I probably would. I don't think I could vote for any candidate who had a truly bad track record on the environment, by which I mean either consistent voting against environmental protections and/or sponsoring particularly egregious anti-environment legislation.

Yet, I think that might be my only one (excluding extremist positions, i.e. no members of the Klan, no one who favors child abuse, etc.). I certainly have preferences on most other issues, but at first glance I don't think any of them could alone prevent me from voting for someone I disagreed with on that issue.

I wonder if most people have more or less stringent standards than me. By having a single-issue litmus test, I automatically disqualify a wide range of candidates. Yet by having only one such test, I probably leave the door open to many candidates that traditional leftists wouldn't even consider.

Prosecuting Victims

Here's a case that raises some very interesting questions about holding victims responsible for their actions:

Despite having an order of protection filed against her ex-husband, Betty Lucas invited him to a birthday party held for one of their children. The party soon disintegrated into fighting and police were called. But in an unexpected twist, both adults were charged with violating the protection order--her ex-husband for attending and Lucas for inviting him.

Now Lucas' appeal has landed on the docket of the Ohio Supreme Court, which must decide if a person who seeks a court's protection can be charged with violating their own request.

Domestic violence groups have sided with Lucas and say abusive people--not their victims--must be held responsible for violating protective orders. Prosecutors say Lucas should be held as accountable as anyone else who helped her husband violate a court order.

It'll be interesting to see how this turns out. She was convicted for recklessly aiding and abetting and the state appellate court upheld her conviction (770 N.E.2d 114), in contrast to another state appellate court ruling from a few years back which held that those under the protection of such an order can't be prosecuted for violating it (744 N.E.2d 1225).

I'm obviously sympathetic to the arguments of the domestic violence groups, as I think the protection we offer such victims is already pretty inadequate. Yet, my boss says that police are becoming very frustrated with the number of times they'll return to a location on a protective order violation only to find that it was the protected person who invited the offender. While prosecuting the victim may be distasteful, prosecuting the offender alone doesn't really seem right in such a situation either.

Shinseki for Senate

Phil Carter has a good post reflecting on outgoing Army Chief of Staff Gen. Eric Shinseki's admirable career and parting words. The AP is reporting that politics may be in his future:

Some Washington pundits speculated this week that Shinseki could run for the Senate from Hawaii either as a Democrat or a Republican, and a former Pentagon official in the first Bush administration has said Shinseki �may be feathering his Hawaiian political nest already.�

Though it's not clear what Shinseki's political affiliation is, he's apparently close to current HI Senator Daniel Inouye.

As Bob Novak noted, it would be fun to see Shinseki taking on Rumsfeld or Wolfowitz from the Senate, wouldn't it?

No, the Other William Wallace

Remember Lt. Gen. William Wallace? He's the one who said that the Iraqi forces met early in the war were "not the enemy we war-gamed against." Well Army Times reports that he's now set to command the Combined Arms Center at Fort Leavenworth:

One of the Combined Arms Center's major responsibilities is to write war-fighting doctrine for divisions and corps, a mission that Wallace appears well-groomed to lead.

The CAC is the home of the Command and General Staff College and other important schools and research facilities, and ought to provide a good opportunity for Wallace to influence future leaders.

Mandatory Minimums

PG asks in comments below how I feel about mandatory minimums. It's a good question. My gut tells me that mandatory minimums are a pretty heinous thing. For one thing, legislatures don't seem to have enough incentive to restrain themselves (see e.g. the increase of powder cocaine minimums in some state to achieve equality with crack cocaine minimums). For another, I wouldn't be as worried about judges being ignorant of the horrendous physical abuse of women, for the simple reason that these cases come before them too frequently and they see all the evidence of brutality. It's those of us who never see these things that I worry about. So in that sense I'm more concerned about mandatory minimums sending people to prison for too long than judicial discretion letting people off too easy. Though I should say that Mr. Paul (the defendant in my last post) does not really present a very sympathetic case, what with his numerous physically violent convictions. A number of the California three-strikes defendants seem better examples of the idiocy of mandatory minimums.

So in general, I guess I'm quite opposed to mandatory minimums. But I'm also willing to work with that system, which is why I've long been interested in being a prosecutor. It seems pretty clear to me that the prosecutor is the only one with any real discretion left in many jurisdictions. His ability to choose which charges to bring (with their accompanying sentencing guidelines) and to plea bargain leave him the only actor with a consistent ability to treat each case as its own.

Brighter Side of Criminal Law

I blogged yesterday about the darker side of researching criminal law, so I thought I owed a mention to some of the more humorous and amusing elements. In particular, the defenses of necessity and duress have given rise to a tremendous wealth of unlikely explanations and excuses for criminal behavior. More often than not, these claims are quickly dismissed. However I have run across a few funny cases in which appellate courts have ruled in favor of the defendant.

The most unbelievable might be U.S. v. Paul, a 1997 case in the 2nd Circuit Court of Appeals (110 F. 3d 869). In this case, the defendant was arrested for firing a revolver while standing on a city sidewalk, and convicted of the federal crime of possession of ammunition by a convicted felon. Yet Paul argued he was entitled to a defense of duress:

Paul gave the following account of the events leading up to his firing the gun. In the early morning hours of the day of the episode, he had been playing poker in a bar with four or five other men, including a man known to him only by the name "Shorty". After Paul won the final hand of the game, Shorty asked Paul for a loan of $100. When Paul refused, Shorty became angry, went outside to his car, and retrieved a bottle of whisky. From the bar, Paul also saw Shorty putting something else into his pocket. That other item turned out to be a gun.

Returning to the bar, Shorty continued to argue with Paul. As both left the bar, the argument escalated. Paul shoved Shorty, and Shorty pulled the gun out of his pocket and fired two shots at Paul's leg. Both shots missed.

At first, Paul ran for cover beside a parked car. He then ran back inside the bar, closed the door and held it shut, and continued watching Shorty through a small window. Although Shorty initially approached the door, he soon turned and began walking away in the direction of his car, placing the gun back into his pocket. At this moment, Paul decided to administer physical punishment to Shorty for shooting at him. Paul darted out of the bar, accosted Shorty, and tackled him to the ground. When Shorty reached for the gun, Paul grabbed it out of Shorty's hand, and sat on top of him. Paul then struck Shorty a few times, stating that he did not need a gun to deal with him.

Still in possession of the gun, Paul walked back toward the bar, firing the remaining bullets into the ground, and throwing the empty gun onto the floor in the bar. He testified that he fired the gun solely to ensure that it could no longer be used to injure or threaten him.

The jury was not charged on the duress defense, and Paul was convicted. The sentence? 262 months imprisonment. That's nearly 22 years! It turns out that because of previous convictions (assault on a police officer in 1978, robbery in the first degree in 1978, assault in the second degree in 1982, assault in the second degree in 1985, and assault on a police officer in 1991), Paul qualified as an armed career criminal and thus subject to a mandatory minimum prison sentence of 15 years.

Well he won on his appeal and the case was remanded for a new trial. The new trial took place and he was convicted again, only this time his sentence was for only 235 months!

So two lessons to take from this case: (1) mandatory minimums hurt; (2) duress defenses never work.

The Great Literature Project

In connection with my renewed efforts to read great literature, I've created a big list of books to read (and added a link to it under 'Navigation'). Much of the list comes from The New Lifetime Reading Plan, and I've noted those titles with an 'x'. The rest come from other sources (the Modern Library list, books I already own, etc). I've color coded those I've read (though not if done for a class).

Suggestions are always welcome.

Doe v. Unocal

In my class on Human Rights Law, we spent some time on Alien Torts Claim Act cases and on Doe v. Unocal in particular. This is a case in which Burmese peasants are suing Unocal to recover damages for the use of slave labor and other human rights violations by the military, which was hired by Unocal to provide security.

The District Court dismissed the case on grounds that there was no evidence Unocal desired these abuses, but the Ninth Circuit Court of Appeals reversed. Now they've agreed to rehear the appeal en banc, and John Ashcroft has filed an amicus brief supporting Unocal by arguing that such ATCA claims should not be allowed. The lefty bloggers have been covering this pretty well (here, here, here), but now even Joe Katzman at Winds of Change is venting on the issue. Here is part of Human Rights Watch's analysis of the amicus brief:

In its brief, the Justice Department embarks on a wholesale attack on the Alien Tort Claims Act (ATCA), the law underlying the villagers' claims. For over twenty years, since the landmark 1980 case of Filartiga v. Pena-Irala, courts have ruled that the ATCA permits victims of serious violations of international law abroad to seek civil damages in U.S. courts against perpetrators found in the United States.

The Justice Department's proposed interpretation of the law would radically narrow its scope. The law would be changed so dramatically, in fact, that as the Department itself acknowledges, it would be rendered "superfluous."

One of these days I'm going to stop being surprised by the Justice Department. What is most interesting to me is that some human rights groups have been afraid to press ATCA appeals at the higher levels for fear of exactly this reaction by the government. If the wrong case makes it to the Supreme Court, the whole ATCA process may be shut down. Many would not miss it, but it does seem to be one of the few outlets of any kind in our country for registering complaints about human rights abuses abroad.

UPDATE: An article from suggests the Justice Department's position is likely to be rejected:

[L]ast week, in an unrelated case also involving claims under the act -- with the United States itself as one of the defendants -- the en banc 9th Circuit ignored the government's request to revisit precedents or an analysis of the statute has led that court, and many around the country, to permit these claims to go forward.

The Alvarez decision has "enormous" implications for the Unocal case and all cases against corporations under the statute, said Paul L. Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman of Venice, Calif., counsel to Alvarez and who, with the Center for Constitutional Rights, represents citizens of Myanmar (formerly Burma) suing Unocal.

The Justice Department in Alvarez, he explained, pressed the same argument as in Unocal that the act does not apply to claims brought by aliens for actions occurring in other countries.

Writing in Books

I found the first part of How to Read a Book immensely interesting, particularly its analysis of our educational system and the lack of true reading comprehension training beyond the elementary level. I also connected well with its discussion of 'speed reading' (a big deal when the book was last revised in 1972), as it emphasized that the key is to be able to vary the speed with which you read. Some texts (e.g. unnecessarily verbose legal opinions) are best read rather quickly, with an eye for the most important passages. On the other side would be texts (e.g. Aristotle) that ought to be read more slowly, as each line of the dense prose may be important. Other texts (e.g. the Declaration of Independence) have some parts that should be read slowly (the first couple paragraphs) and others that can be read quickly (all the grievances).

Unfortunately, there have been several chapters which either didn't seem very helpful in reading fiction or were antithetical to my instincts. In particular, there are several pages of suggestions on why and how to write in your books. Titled "How to Make a Book Your Own," this section includes such things as underlining interesting lines, writing questions in the margins, and making asterisks next to the dozen or so key passages in the book.

I hate writing in books. It was a struggle to learn even to highlight in law books, and I'm not even sure I'll continue that practice. As for fiction, I can hardly imagine taking a pen to the pages. I may attempt a compromise by keeping a journal of some kind at my side, to allow some written feedback during my reading. But there is no chance I'll be writing in the books themselves. Does anyone else have this problem?


I have friends spending their summers working for either the local U.S. Attorney's office or the public defender's office, and both have specifically mentioned how amazed they've been at the horrible things that go on in Charlottesville and the surrounding county. I've long assumed one of the significant difficulties with working in criminal law is that exposure to the dark side of humanity, and their experiences leave no doubt. In my research on the self-defense chapter of the casebook I'm helping to revise, I've spent several hours reading nothing but cases involving battered woman's syndrome, and I have to say the stories these women tell are just horrific. It is nearly beyond the scope of my comprehension to believe that such things take place, but of course they do.

Some of the most egregious abuses I've read about are committed by men whose external life seems quite normal, even enviable. They are successful businessmen and upstanding members of their community, as far as anyone outside the home can tell. But much darker things are going on behind closed doors. Some of our society's ambivalence about this abuse might be explained by concerns about privacy, indifference to women's rights, etc. But I think a large part of it might be a result of cognitive dissonance that arises from the fact that accepting the realities of abuse means having to admit that we all likely know at least one man who abuses his wife or girlfriend. We'd much rather pretend such things don't happen, or that "they don't happen here", than have to deal with the proximity of such horrors to our own lives.

Modest Expectations

I've been back since Tuesday, but I've been reluctant to post as a few relatively major things have been swirling in my head. While reading a biography of Tolkien last week, I was struck by a description of his disinterest in the news. It will comes as no surprise to hear that Tolkien had a very rich inner world, but the sentiment got me thinking about my own addiction to the news.

The truth is, I'm tired of the news. I've long been pretty skeptical about how much of what CNN (et al) reports actually matters. I think it's gotten worse over the last 10 years, with the O.J. Simpson trial being (in my mind) a real turning point in our country's ability to become obsessed with relatively minor events. I got the same feeling watching press coverage of Princess Di's death, the disappearance of Chandra Levy, and numerous other pseudo-events. Since I started blogging, I've found myself further drawn into that media spectacle and I don't like it. I'm tired of seeing the latest episode of "American Idol" making the headlines. I'm tired of hearing about the Israelis and Palestinians. The newspapers say the American president is meeting with the Israeli and Palestinian leadership to hammer out a deal for peace, and I can't tell if it's 2003 or 1993.

Don't misunderstand me, I'm not depressed. This doesn't have anything to do with a Republican administration. And I don't mean to insult those who enjoy following such stories, everyone is entitled to focus their attention as they wish. I've decided to make an effort to shift my focus.

While in California I stumbled upon a book called The New Lifetime Reading Plan. At first it seemed very gimmicky and I'm pretty skeptical of such things. But upon flipping through it I found it to be a very helpful little guide to great literature, with due attention paid to non-European texts. Even with authors I'm already familiar with, I appreciate the suggestions on which novels to read first. There are many authors for whom certain novels, while not their best, are certainly their most accessible and provide a good stepping stone (my own best example of this would be Faulkner: picking up The Sound and the Fury out of the blue was a failure and left a bad taste in my mouth; when I returned to him, I started with The Reivers and The Unvanquished and loved both).

The point being, I have spent too many hours surfing, Slate, etc. My love of literature has taken a backseat, and I aim to fix that.

Now that doesn't mean I want to remain completely ignorant of world events. I'll still spend my share of time on other blogs, and of course my fascination (and career ambitions) with legal issues means I'll keep my eye on the courts and the law reviews. But I think it will do me good to consciously turn my focus inward, with the great literature of our world being a prime tool.

To that end I've started reading How to Read a Book. It too seems gimmicky at first, but the authors are rather reputable and the book description (and reviews at Amazon) suggest it may be an antidote to what I'll call 'law school reading habits'. As most judges are not known for their efficiency with words, law students learn how to read cases fast and parse out the key information. This is a great way to go through Property and a terrible way to go through Shakespeare. Thus the need for an antidote. It's been five years now since I took an English class, and though I don't miss the conformity of many of those classes, I do miss the lessons in critical readings that I got from one of my high school teachers. I need to read slower and more critically, and perhaps this little book by Adler and Van Doren will help.

Finally, the question my loyal readers are surely most concerned with: what does this mean for the blog?

Hopefully it means good things. There are 1001 bloggers analyzing current events, many of them more interested, intelligent, or eloquent on whatever the topic of the day may be. I'll stay focused on what I can contribute uniquely. In a few years that'll include the perspective of an Army JAG attorney. For now it will be my life, law school, and the literature I read. I hope it is interesting.