Wednesday, April 30, 2003

[Will, 10:11 PM]
A Modest Proposal:

Juan Non-Volokh rehearses the shameful history of partisan obstruction on both sides of the judicial nomination process. Democrats kept Bush from filling his seats, so Republicans kept Clinton from . . and so on. I'd like to reiterate a suggestion I made before-- that presidents retain the indefinite right to fill a particular seat even after they leave office (and perhaps pass it on to somebody appropriate once they are dead). This could be combined with a ten year waiting period to avoid strategic court retirements, if you think those would be a problem.

[Will, 3:53 PM]
Bulgaria Redux:

More news from Bulgaria: They've introduced a hangover-free vodka. (via Eugene Volokh et. al.)

I have been told that Saki is nearly- or totally- hangover free because it contains so few impurities. Having never drunk Saki to excess (or much at all), I have no idea. Can anybody confirm or deny this?

[Will, 3:38 PM]
Death and the Constitution:

I'm not particularly pleased with Eighth Amendment jurisprudence (What would you suggest instead?-- ed. I'll tell you when I'm done with Mr. Wall's exam) so far as the death penalty goes, though I do think that the death penalty is probably undesirable. As Justice Scalia wrote in Atkins v. Virginia,
There is something to be said for the popular aboltion of the death penalty; there is nothing to be said for its incremental abolition by this Court.

That being said, here are two constitutional hooks I offer to those desperate to oppose it by any intellectually honest grounds available (Is it intellectually honest to hunt around for intellectually honest grounds to support your preconceived notions? Hush, you!)

Possibility One: Death penalty abolition as prophylactic rule. Given the irreversibility of the death penalty, and the fact that a number of Supreme Court cases have ruled various applications of it unconstitutional, the only effective way to protect those who would otherwise be wrongfully executed under the death penalty is install a general rule against it, even though it is not facially invalid. This would borrow the overbreadth doctrine currently monopolized by the First Amendment. If speech is different and death is different, maybe they should go be different similarly. (This hook, of course, requires you to have established that the death penalty is not per se constitutional.)

Possibility Two: Defending evolving standards. The Eighth Amendment tends to get interpreted in terms of evolving standards, measured by who-knows-what. One could, for example, require a consensus (whatever that is) of state legislatures, international law, the subjective personal preferences of five Justices, and all the rest. The complaints against each of these methods are many, but a lot of the methods do give some force to anti-death penalty arguments. We do kill people somewhat more than the rest of the world, and are somewhat unusual in that regard. That oughtn't control the constitutional analysis, but maybe it ought to contribute to it.

Some might threaten to apply this "evolving standard" argument to other freedoms (some people get particularly squeamish about the First Amendment). Should Congress uphold bans on, hypothetically, subversive Nazi speech if it find that much of the world does and that many state legislatures would like to pass such laws? Maybe not. The Eighth Amendment, unlike the First, practically invites some sort of evolving review, by use of the word "unusual." The First Amendment includes no such qualifier. Similarly, the "reasonable"ness requirement of the Fourth Amendment suggests that amendment too should come under popular review in a way that, say, the Sixth should not.

This isn't crazy. If the founders had intended to index permissible Eighth Amendment practices to their own conduct rather than their own test (though unusual is a fairly vague test), they could have done so. "No torture shall be permitted," they could have written, or "No punishment except as allowed by law". (Scalia has suggested that "unusual" is supposed to signal that limiting clause, which is possible, but would be odd, given that in the Third Amendment, the Founders did use the words "but in a manner to be prescribed by law.")

This doesn't solve a lot of the other problems left to Anti-Death-Penalty-by-Constitution advocates, and I think that some of those problems can't necessarily be solved. But I do think that it might be intellectually honest, even intellectually demanded to be more quick to apply modern standards to some Amendments than others.

That said, my education in all of constitutional law is limited to about 15 weeks of class plus my own itinerant reading and discussion. And if I go to law school (and one hopes admissions officers don't read this) a more educated reading of text and history might be completely different. But there are some hooks for you to grasp at, at least.

[Will, 8:10 AM]
Resistance is Futile:

As you can see, we have now also assimilated Peter Northup of Akratic Theory. He'll be assigned a color shortly.

[Peter, 2:46 AM]
So in my indigenous intellectual rights class today, the discussion turned to that paragon of public interest legislation, the Sonny Bono Copyright Term Extension Act. (For those who avoid thinking about acts of Congress, this is the one that, in the nick of time, tacked on 20 years retroactively to the length of copyright protection, to save the world from the unthinkable catastrophe of unlicensed Mickey Mouse t-shirts). The discussion made me wonder: seeing as how I have never met anyone who defends this bill*, what sort of majority did it command? Someone in class said they believed it had been nearly unanimous; I decided to do a big of google-searching.

I found this colorful description of the process at (yes, I know, don't laugh) the Phyllis Schlafly Report on the 105th Congress (after a listing of exactly how much money the bill's cosponsors were given by Disney):

On a single day, October 7, the Senate Judiciary Committee discharged the bill by unanimous consent, the full Senate passed the bill by unanimous consent (without a roll call), and the House passed the bill by voice vote under suspension of the rules. Clinton signed it on October 27 as Public Law 105-298.
Now, the "voice vote under suspension of the rules" allows the House some wiggle room; maybe some brave soul shouted "nay." But unanimous consent in The World's Greatest Deliberative Body? Is there a moral here?

Here I am, an aspiring political theorist, concerned with questions of legitimacy, and one of the few rocks I've been clinging to has been that of unanimity [What about future generations? Who decides the relevant constituency? --ed. Shut up!]. I mean, if Rousseau and Buchanan & Tullock agree on something, how bad can it be? In terms of legitimacy, what more can you really ask for? It's therefore more than a little depressing to see that one of the least defensible acts of Congress I can think of was passed with essentially just that.

I'm sure this isn't a remotely original thought, but it seems to me there's something of a U-curve here. Up to a certain point, as far as majority size goes, More's Law applies (if some is good, more is better); 75% approval confers more legitimacy than 51%. But when we get to unanimity, perhaps there's what we might term the Saddam Effect--it just looks darn suspicious to see everybody supporting something. Perhaps I'm too pessimistic; maybe tons of wonderful legislation passes unanimously. But I find myself a bit doubtful--the pluralist in me, I suppose.

*For those who don't follow such things, here's the nutshell version of why this bill is so obviously terrible: one can argue about what the ideal term for copyright should be, but applying it retroactively rather than prospectively is prima facie evidence that the sponsors didn't really give a damn about encouraging new innovation, but instead merely wanted to let further profits accrue towards who had already benefitted.

[Will, 1:41 AM]
Establishment 101:
A post from conservative-land lambasts the court for refusing to deal with a Kentucky case about the Ten Commandments.
For one, the Ten Commandments are one of the bases of modern law. They're historical, like the Code of Hammurabi or the Magna Carta.

More important, the Constitution says NOTHING about requiring states or the country to be anti-God or atheistic. It says "Congress shall make no law RESPECTING AN ESTABLISHMENT of religion...." (Emphasis added.) Does that mean "Congress shall make no law or practice that has anything to do with God or theism"? No, it means that there shouldn't be any laws that infringe on others' rights to be religious or spiritual in whatever way they so choose.

Eugene Volokh has covered this (I can't readily find the link) but only three of the ten commandments are clearly espoused in modern law. That's not a great success rate. Furthermore, the establishment clause probably didn't (and doesn't) merely forbid laws that infringe on others' rights . . . That, in fact, is what is protected by the free exercise clause, and it would be very curious for the Founders to repeat themselves in the terse First Amendment. The usual theories of Establishment clause jurisprudence are non-prefentialism, non-coercion, and non-endorsement. But the doctrine is much more complicated than that.

At any rate, it's not clear that the Ten Commandments can be constitutionally bandied about by a secular government, which ours is. But then, the earlier part of the post holds up Bush v. Gore as the high point of Supreme Court jurisprudence, so . . .

[Amanda Butler, 1:22 AM]
Public service announcement:

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[Will, 1:08 AM]
What's in a Rose:

We have a tentative new name. The reference will be obvious to Chicago-ans.

Tuesday, April 29, 2003

[Will, 10:19 PM]
No Soul to be Damned:

Tom Paine.com presents an argument that Nike should lose its case in Nike v. Kasky, in which it is arguing that it ought to have the same political speech rights that individuals enjoy. Rather than delve into the depths of whether corporations should have free speech rights de novo I just want to take a few parts of the Tom Paine piece and explain why I think they are problematic. This is the reason that legal briefs are more conducive to constitutional arguments than are op-eds.
But Nike’s going out of its way to try to legally cement its ability to speak deceptively. The trouble is that there is no Constitutional justification for this. Corporations should not enjoy the same rights as humans -- the word "corporation" is entirely absent from the Bill of Rights and Constitution; and for good reason. People should be held in higher esteem than companies.

The word corporation is indeed absent from the Constitution. But the word "person" is also absent from the First Amendment. On its face the First Amendment protects speech from being abridged, regardless of its source. So there's certainly a textual justification for affording free speech rights to corporations. Maybe you think this is the wrong decision (The Chief Justice does), but the presumption is certainly on the side of the text.
Another reason for limiting corporate "freedom" is that corporations can and do use their privileges to harm people in the interests of profit. For years, tobacco company officials claimed -- even in testimony before Congress -- that smoking wasn't a serious health risk. As it turned out, they were blatantly lying, but thankfully they’ve gotten hammered with massive class-action suits. If the Court rules for Nike, kiss that accountability goodbye.

Lots of people can and do use their privileges to harm people in the interests of profit-- a few United States Senators, for example (none of whom I will name). This isn't considered grounds to remove their right to speak untruthfully on political topics. Furthermore, my understanding is that First Amendment protections-- extended to people or to corporations-- do not protect one from sworn testimony, affidavits, or commercial fraud.
Corporations need not be held to perfect accuracy, but they must be held accountable to the high standards of truth we as citizens should expect from corporations.

The circularity of this statement speaks for itself.

[Will, 3:23 PM]
A Blog by any other name:

I've received many suggestions in response to our name search. These ranged from the alluring if vaguely obscure Crescat Sententia (let opinions increase) to the tongue-tangling Baude's Cavalcade of Whimsy. I also remember the Baude-Borg-Blog, The Society of Oddfellows, the Baude Collective, and The New Chicago School.

If only "Chicago School" weren't already semi-taken. Further thoughts?

[Will, 3:15 PM]
That's Nothing:

Sara Butler reports (and presumably decries) the fact reported by an Economist Article that in India (not, as I originally wrote, Indiana), one out of every six (17.5%) girls conceived is aborted.

Well in America, there are approximately1.2 million abortions per year and 4 million births per year. That means that in America, 23%, or nearly one in four girls conceived is aborted.
Of course, in America that goes for boys too. And this doesn't help us answer the question of whether these aborted fetuses are actual girls, or simply girls-to-be.

[Will, 2:24 PM]
Other death:

Another note for those in Chicago-- On May 3rd at 1:30 in International House, the Edmund Burke Society will be gathering to discuss "Resolved: Let's Kill all the Lawyers." If you like arguing with highly pretensious conservatives, it's worth going.

[Will, 2:14 PM]
Which Originalist?:

These kinds of speeches at the ratification debate (link currently bloggered) are what give me pause about thinking that originalism is a helpful doctrine. My suspicion is that even the Founding Fathers (as a collective, not as individuals) weren't precisely sure what the meaning of some of the clauses was.

I'm not sure that it makes more sense to turn to legislative history for this particular legislature (the constitutional convention) than it does for legislatures in general in questions of statutory interpretation.

[Will, 2:08 PM]
Spam and Externalities:

The New York Times takes an unsurprising stand against Spam, an issue which raises intriguing, if not particularly thorny issues of First Amendment jurisprudence. What few anti-spam advocates have considered is a slightly more economical solution.

Given the advent of things like paypal accounts and the like, if not total anonymous ECash, it is possible to effect monetary transfers online, even fairly small ones. What if everybody could configure their email accounts to charge a small fee (say, a penny) to any email from an unknown address? (Each person could set their own fee, based on their own like and dislike for unsolicited mail). A fee on the order of a penny or a nickel or a dime is much too small to deter any one-on-one mailer with anything even vaguely important to say (and on the whole, these penny and nickel transfers would largely cancel out) but enough to strongly deter most spammers who want to send 1,000,000 emails expecting to make 50 dollars each off of 50 respondents.

This voluntary pay-for-access program would allow spammers and email-users to make their own choice about the relative sanctity of their email account and the expected value of the commercial transaction they propose. Just a suggestion.

[Will, 2:00 PM]
The Law Giveth and ...

Those of you in Chicago who chose to attend class or something in lieu of listening to Richard Epstein's talk, "All the world's a taking" probably made a mistake.

I intended to take detailed notes, but Professor Epstein speaks too well for my paraphrases to do justice to whom. In a nutshell he argued that the Supreme Court's approach to limiting the takings clause has been all wrong. It has always been hesitant to require constitutional compensation for "regulatory" and other such takings because of its extreme example, that it doesn't think that uniform neutral zoning laws should require a massive scheme of payments.

Epstein argues that this counterexample can be cleaned out, not by disregarding the analytical framework that serves us so well in the easier case (a farmer whose land is taken to build a post office) but by figuring out whether the diffuse taking has actually been compensated by the diffuse benefit of a zoning law. In other words, zoning laws are a taking, and therefore must be neutral in order to escape the constitution without having to pay their way.

There was, of course, much more, but I'll just report a few of the choicest quotes:
"The argument is-- 'Ho, ho, ho! I did not take the house, I blew it up!"

"...trying to draw a sharp line in the sand when in fact the wind and the water are blowing and you have no idea where it is."

"As is often the case, anything that is philosophically indefensible is economically and socially a mistake."

"The last thing you want to do is take strong presumptions and turn them into absolute rules, then face a counter example and lose your entire case."

[Will, 1:48 PM]

Adding to the "how do I get noticed?" discussion, Dan Drezner adds (to blogger users), "make sure your f#@&ing permalinks are working." Amen.

If you're on a group blog, and you don't have admin privileges, I'm not sure you can republish your archives every time you post. Make sure that whoever is in charge does so. Unless somebody knows a way to make blogger do that automatically.

[Will, 1:42 PM]
Crossing Aisles:

(Via How Appealing) Long live Feinstein and Nelson, the only two Democratic Senators to vote for Jeffrey Sutton's nomination.

[Amanda Butler, 12:51 PM]
an exception:

Over-sweetened Dunkin Donuts coffee. Now that's grounds for murder.

But seriously, I think the lines between rationality and irrationality are tenuous and hard to draw; a prophylactic rule against the death penalty is one way to acknowledge it.

Will writes that "I think we're too quick to think of time lost in prison as "reversible." Agreed. This week's NYT Magazine profiles Clyde Charles, imprisoned in Angola Penitentiary for 19 years for a rape-murder he didn't commit. He was finally released on DNA evidence.

The sad reality of prison, of course, is that the more years an inmate spends in the custody of the state, the less capable he tends to be of functioning on the outside. Clyde spent nearly half his life holed up with criminals, observing their peculiar rules and conforming to their tribal ways. When he wasn't busy obeying them, he was obeying guards who told him when to get up and when to go to sleep and when to eat and when to urinate. After 20 years, he was a mental shambles, socially unfit -- the adult equivalent of a surly 12-year-old.

What is it worth, 19 years wrongfully spent in Angola? Is there a figure that can be calculated and paid out in hard cash?

[update: some blogger issues... missing words it's dropping to be added later]

[Will, 9:46 AM]
Chicago Sodomy Roundup:

Past and present presidents of the UC Libertarian Society go on the sodomy warpath in the Chicago Maroon. My opinion piece is here, Nick Tarasen's is here, and the unsigned editorial is here.

[Amanda Butler, 2:33 AM]
Somewhere in the darkness two rats scuffled. These water-side rats were the size of rabbits. The natives called them pigs and ate them roasted; the name helped to distinguish them from wharf rats, who were a human breed. -- Graham Greene, The Heart of the Matter, Ch. 6.

After a surprising amount of pondering, given the subject matter, I've decided it's the use of the word 'who' in the third sentance that I like.

[Will, 12:14 AM]

Having produced enough in the way of manifestos, today, I'm not going to produce one on the death penalty. I will, however, offer two thoughts.

1: The argument that the death penalty serves as a deterrent is pretty scanty. If I recall correctly, if you are a young black male, your chances of dying after a year on death row are a little less than your chances of dying in Washington D.C. People on death row don't die that often or that quickly.

2: As a corollary to this, I think we are too ready to blur the line between the death penalty and life imprisonment. In theory, the former is much less reversible than the latter, but given the immense delays inherent in administration of the death penalty, it can often greatly resemble life without parole. It's not clear that there's a categorical different between taking people, locking them in a box for twelve years, and then killing them versus just locking them in the box until they die. While I do think the death penalty shouldn't be used (though it's probably constitutional), I think we're too quick to think of time lost in prison as "reversible." It's not, and we should be darn careful who we lock up.

Monday, April 28, 2003

[Will, 11:57 PM]
Kozinski redux:

Here's another great Kozinski dissent, though I'm a little less sure about it as a matter of law, I think I'm convinced. It begins:

The majority hinges its opinion on the proposition that “the right to procreate is fundamentally inconsistent with incarceration,” Maj. Op. at 7584, but does not explain how. Let’s consider the possibilities. Gerber asks for permission to:

1. Ejaculate

2. into a plastic cup, which is then to be

3. mailed or given to his lawyer

4. for delivery to a laboratory

5. that will try to use its contents to artificially inseminate Mrs. Gerber.

I gather that the first step of this process is not fundamentally inconsistent with incarceration and prison guards don’t patrol cell blocks at night looking for inmates committing Onan’s transgression. Similarly, the prison has no penological interest in what prisoners do with their seed once it’s spilt; a specimen cup would seem to be no worse a receptacle, from the prison’s point of view, than any other.

Nor is there anything remotely inconsistent with incarceration in mailing a package, or handing it to your lawyer. Sure, the prison is entitled to make sure it doesn’t contain prison escape plans, but Gerber is not claiming an exemption from routine security checks. That a package contains semen, rather than a book or an ashtray or some other such object, would seem to make no rational difference from the prison’s point of view.

Once the package is outside prison walls, the prison’s legitimate interest in it is greatly diminished. That it is to be delivered to a laboratory, rather than to any other willing recipient, seems to make no difference to prison authorities; certainly they have offered no proof that it does. Nor, I would think, does the prison have a legitimate interest in what the recipient does with the package. Whether it is used to inseminate Mrs.
Gerber, to clone Gerber or as a paperweight has no conceivable effect on the safe and efficient operation of the California prison system.

He goes on to recognize that the situation might well be different if an actual statute authorized the warden's decision, and so on. It's interesting stuff Of course, the 9th circuit en banc court disagreed 6-5, but . . .

[Will, 11:29 PM]

Peter Northup (intermittent blogger) has a nice post (which he plans to add to later) about the balancing test involved in intellectual property, especially in issues of satire, and the very really chilling effect that threat of lawsuit can place on independent-types. He suggests, I think rightly, that the "Fair use" doctrine might be a place to turn for solutions, though the law hasn't done it to a satisfactory degree. I recommend Richard Posner and William Landes's new book on Intellectual Property, which suggests (generally) that copyright ought to be extended to more works but that fair use exemptions ought to be broadened immensely.

Full Disclaimer: I helped work on this book during the past year.

[Will, 11:09 PM]
And so it Begins:

Sara Butler, unsurprisingly, complains about the abortion post below, while The Private Intellectual thinks that I've been even-handed, which probably just means that like my hero, Justice Kennedy, I can't say anything without a three-page equivocating preface. Anyway, Sara writes:
Well, actually I don't think there's really much of an argument to be had about whether or not an unborn child is a human life. It's definitely alive and it's definitely human. What else could it be? It's a human fetus, not an unborn zebra or chimpanzee or seahorse.

Without meaning to quibble (oh hell, let's quibble), just because something isn't a zebra or a chimpanzee or a seahorse doesn't make it a human. Firstly, there's the "unborn" bit. An unborn chicken is not necessarily a chicken. It's an egg. Not all unborn "humans" are human, by anybody's count. Take my unborn daughter Jennifer, for example, who has yet to even be conceived. Put another way, not all collections of human DNA are necessarily "human life" even if they are alive. When you take skin cells, sperm cells, blood cells, and put them under a microscope, they don't immediately die. Are those "a human life"? (And while we're quibbling, notice the indefinite article-- even if things are both human and alive, being "a human life" would be different from being "human life" in a broader sense.)

The OED (link unstable) supports such a claim, suggesting that human, man, and human being are all pretty interchangeable. So while we're hairsplitting, I think that human-ness and person-ness are really the same question. Our analysis ought to focus on whether a fetus is a human/person, whatever that means, or not.

Before Amy jumps on my biology-by-OED analysis, let me say that I don't think this is important. If it's conceded by everybody that a fetus is "a human life" then I don't think "a human life" is the relevant thing to be determined (part of the reason I think my usage is superior to Sara Butler's). What we're arguing about, or ought to be arguing about, is whether a fetus is that kind of organism/individual generally recognized by law, constitution, and philosophy in the same way babies are, or whether it's the sort of pre-person mass of cells, DNA and all the rest like sperm and egg are. There's an argument to be made for the "miraculous" transformation of conception, but also one for the "miraculous" transformation of birth.

[Amanda Butler, 10:54 PM]
The death penalty also came up in today's discussion with the Constitutiional Controversies teacher (yes, Will and I and Sara Butler over at Diatoma are all in the same one).

The teacher asked if I were opposed to the death penalty on 14th Amendment grounds. I'm opposed to the death penalty on whatever intellectually honest grounds will support me. I don't question that the death penalty was an accepted form of punishment when the Constitution was written. Ideally, it would be abolished by constitutional amendment. Then we could all just go home.

But that doesn't answer the question of why I oppose the death penalty.

The death penalty is reserved for murder, often in practice the murders that horrify us the most. Therefore, which state gets to try the sniper suspects is decided partially on the basis of who can give them death. I can understand better the man who takes a shotgun, marches up the front steps of the house in which his wife's lover lives, and kills him; or the children who poison their parents so they can get the inheritance now rather than in thirty years; or the politician or private individual who murders to prevent blackmail --- but what sense, what sense at all does it make to start shooting up suburban DC? And even the other examples: I understand the temptation to think that if X were dead, all would be better, but if your reasoning can be clouded to the point that you kill, are you actually reasoning?

Truman Capote asks, "How can a person as sane as this man seems to be commit an act as crazy as the one he was convicted of?" -- In Cold Blood. He puts forth a theory of society in which "each of us is the son of a million fathers,"* morally culpable when any person turns out terribly, terribly wrong. He argues that society failed to raise Dick Hickman and Perry Smith (the killers) properly, failed to intercede to give them a moral sense. He believes both would kill again if they were ever let out of jail, but that they shouldn't be killed for not internalizing the prohibition against murder.

Howard Campbell, an American sentenced to die as a Nazi war criminal (he was actually a double-agent for the US) compares himself to Adolf Eichmann, whom he thinks couldn't tell right from wrong and honestly believed he was just following orders:
My case is different. I always know when I lie, am capable of imagining the cruel consequences of anyboody's believing my lies, know cruelty is wrong. I could no more lie without knowing it than I could unknowingly pass a kidney stone.
"If there is another life after this one, I would like very much, in the next one, to be the sort of person of whom it could truly be said, 'Forgive him--he knows not what he does.'
"This cannot be said of me now."
-- Kurt Vonnegut, Mother Night, Ch. 29

But how do I argue death penalty on the basis of literary quotations? And honestly, I'd probably discount these if I didn't think they supported my own moral interpretations condemning it. At that point, where do I differ from Santorum (other than that my morality is right and his is wrong)?

*quote from Robert Penn Warren, All the King's Men

[Will, 9:37 PM]
Turing Tests:

Irresistible for AIM junkies: a transcript of my brother's breakup with Smarterchild.

[Will, 9:13 PM]
Winds of Change:

The Baude collective swells (and not with Baudes). We've just assimilated another Chicago-blogger, Matt Reading. His own personal life and musings will remain on steadywind, his old blog (which you'll now find blogrolled at left) but his vaguely more political thoughts (and whatever else he feels like) will now be here. I'll leave it to him to introduce himself further. He's a great guy, and fun to read.

Anyway, since the score is now Baudes 2, unBaudes 2, it's probably time to think about a new name. The best suggestion that doesn't use the word "conspiracy" gets a gold star. Email me any suggestions.

[Will, 7:55 PM]
Ahh, Abortion:

My Law teacher, who's begun reading this bog, calls my views on abortion "egregious". Given the rather scattered nature of my posts on abortion (and the fact that I'm usually responding to the excesses of Diotima or the excessive After Abortion, my take on abortion is probably pretty hard to discern. Seeing as how my chances of ever being confirmed to the Federal bench were a longshot anyway, I think I may as well make some basic arguments here, both legal and political. (Amanda's post on same is below).

The usual disclaimer, only moreso: none of these thoughts are set in stone, and many might still be "egregious" to the right, the left, or both. Please feel free to tell me why I'm wrong.


1: I think that Roe v. Wade is a fairly logical extension of Griswold v. Connecticut; if the court is going to uphold a constitutional right to reproductive and sexual privacy, I think it ought to include abortion in that mix. That said, any test applied will inherently be a balancing test, so jurisprudence in the area is likely to be doctrinally incoherent. This is a good argument for getting the Supreme Court out of the abortion debate, but not necessarily a dispositive one. The court applies incoherent balancing tests all the time. Plus, without O'Connor, Kennedy, and Souter bravely writing Planned Parenthood v. Casey, we would lose the opportunity for some of Scalia's most brilliant dissent work.

2: I think that Rust v. Sullivan, which Amanda criticizes (whenever she gets the chance) is absolutely right as a matter of law, and the only alternative to finding a First Amendment claim under every government rock. The opinion held that when the government funds health programs, it is entitled to determine the limits of those programs, even when the limitation means that government-funded doctors in government-funded clinics can't talk about abortion on government-funded time. When the government sends Colin Powell to the Middle East, it is under no obligation to pay Bill Clinton to tag along behind him giving the opposite view.

3: I think that to some the balancing test in part one ought to be dramatically affected by whether or not a fetus is a human being, a question of biology and philosophy as well as law on which I have only tentative feelings. If the government's interest is in saving one life at the inconvenience of another, that's pretty compelling. If the government interest is merely bringing a human being into being at high cost to another, I'm less convinced. If birth control and abstinence are protected by the constitution, then abortion (especially early-term abortion) seems a fairly logical extension of that. The question is where to draw the constitutional line between birth control and infanticide, and I think personhood would be a good place to do that.

4: I don't really think that the "reliance interests" should get much weight in this case. Other than carrying Kennedy's vote, I'm not sure what weight the stare decisis doctrine really bears here.


1: I think legal abortion is a good thing, if a fetus is not a human being. Leaving aside the question of its constitutional status, which I think is highly debatable (from either side), I think abortion (like drug use) should be decriminalized both on the grounds of pure autonomy, but also on the grounds of harm reduction. Creating black markets and encouraging unloving parents to bring about unwanted children are not great for society. A paper by Bates-Clark-medalist Steven Levitt, which I can't find online, shows that the legalization of abortion is probably responsible for half of the drop in crime in the 1990s. I'm not sure how much weight that consideration should get, but I think it should get something.

2: I think abortion/sex gag-rules for government employees are a bad thing. I would be happy if the government extended abortion availability to those who most needed it (though the libertarian in me winces at the sight of government spending). Amy Lamboley explains the flaws in abstinence-only education (tangentially related to the abortion-education discussion) and Judith Levine writes about it (far less congently).

3: I think that whatever abortion is, it isn't "the non-criminal taking of a human life". If it is indeed a human life, then taking it probably ought to be criminal (except perhaps in cases of self-defense).

4: Assuming a fetus isn't a human-being, then I see nothing immoral about doing it, often or rarely, as one desires. Those who wish to legalize abortions and are then appalled to see their prevalence (I think recent statistics had U.S. abortions at 1,000,000/year) are discovering what economists have known for some time. The law of supply and demand is always in force.

Who decides?

Since I think that it's important to determine if a fetus is a human being before knowing what should be done with abortion, the question remains: who should decide? The court or the legislature? My tentative answer is that it is the prerogative of the legislature (federal or state?-- ed. I don't know!) to define who the bounds of citizenship/personship extend to, (within some rational basis) and then the prerogative of the court to enforce the law accordingly. I haven't teased out the exact implication for the legality of abortion there, but maybe that validates the analysis.

Of course, the legislature's power with respect to statutory definition should be much greater than its power of constitutional defintion. . . that may well turn my idea into a mess.

And the responses begin.

[Will, 7:10 PM]
Original History:

In response to my too-off-the-cuff claim that "when the revolutionaries cried 'no taxation without representation' I don't think they used that interchangeably with 'no representation without taxation,'" a reader responds:
Actually, I think a number of them might have. Many of the colonies had property qualifications for voting, and the major tax was the property tax.

And there was (is) the argument that if people could vote without being taxed, they would vote themselves benefits from people who were taxed, and that wouldn't be a good idea.

First off, in a system of differential taxes (which we have), the problem of people voting themselves selective benefits by taxing others still occurs in legislatures. Indeed, sometimes it seems as if it's the primary role of our legislature. That said, I don't really know much about the political rhetoric of 1776, part of the reason I hesitate and waver over originalist interpretations of the constitution.

But more importantly, the general point does still stand. There's nothing inconsistent at all with thinking that voting rights should be spread to all people who have some duty (being police officers, say, or soldiers, or drivers), without also thinking that the duty should be given to all who vote. What would be (facially if not fundamentally) inconsistent is if the "draft implies vote" folks thought that convicted felons should be draftable without being allowed to vote.

[Will, 6:43 PM]
Philosophy and Pragmatism:

I think I've finally figured out why office hours with my Current Controversies in Constitutional Law teacher always fill me with such a mixture of sheer joy and abject terror. Ever since I started thinking seriously about . . . things, one of my greatest fears has been logical inconsistency. This fear has driven me to utilitarian-libertarianism, to logical positivism, to textualism (if not originalism) and now very much looms as a specter over my readings of the constitution. When looking at, say, the eighth amendment, one has to carve out a coherent position about it. Nobody particularly does it. Scalia uses a "mode analysis" and decries proportionality, while Breyer urges "proportionality" without ever explaining what the rule is and also without pointing out that the test is essentially a trumped-up version of Scalia's own mode test. The center-right (which is to say O'Connor and Kennedy, with Rehnquist tagging along out of (perhaps misplaced) respect for stare decisis) urges something else, though it's difficult to figure out precisely what it is. O'Connor's decision in Ewing v. California, for example, is essentially a restatement of the facts followed by a summary of the judgment, and fairly lacking on analysis in between.

So what's a libertarian logician to do? On the one hand, I'm tempted to agree that the most intelligible and principled way to interpret the constitution is in a fairly restrained manner, largely according to the dictates of history and its text. The more broadly one constitutional protections, the less deep one can afford to let them run. Consider the application of the First Amendment to conduct that is neither oral nor written communication, such as the burning of flags or draft cards. Having upheld a general right to act expressively as well as to speak, the court then has to admit that a lot of different values can trump that First Amendment claim. Maybe it would be a better (and more sensical) world where the constitution only applied in a more limited number of cases, but applied with more force when it did apply.

And yet what about sodomy laws? I have to confess, while the originalist in my cringes, that I won't lose any sleep if Bowers v. Hardwick is overturned. Partially this is because I think that it follows as a fairly logical consequence of Romer v Evans (if not Griswold v. Connecticut), but partly I think it is defensible as a matter of first principle. The questions that originalists ought to ask themselves is not what the Founding Fathers did (a problem in and of itself when the Founding Fathers differed, as they often did) but rather what the Founding Fathers would have done given original principles but current facts. That kind of counterfactual can be difficult to disentangle, I admit, but I think it's more permitting of the right answer.

Furthermore, there's the problem that logical and legal consistency at the expense of moral judgment is not "incentive compatible," as economists say. That is, if half the judges behave themselves and half do not, it is the misbehaving judges who are more likely to get their way. And while I'd rather live in a world of consistent jurisprudence than inconsistent, if my jurisprudence is going to be inconsistent, then i'd at least like it to be good.And on the subject of contradictions, there's also the Nozick argument, particularly strong for those who already have life appointments or academic tenure:
Though philosophy is carried on as coercive activity, the penalty philosophers wield is after all, rather weak. If the other person is willing to bear the label of “irrational” or “having the worse arguments,” he can skip away happily maintaining his previous belief. He will be trailed, of course, by the philosopher furiously hurting philosophical imprecations: “what do you mean you’re willing to be irrational? You shouldn’t be irrational because. . .” and although the philosopher is embarrassed by his inability to complete this sentence in a non-circular fashion– he can only produce reasons for accepting reasons– still he is unwilling to let his adversary go.

[Will, 6:15 PM]
Quite a Day:

Many many thanks to Daniel Drezner and Jacob Levy for their links today. I feel like we've arrived in the Chicago circuit; we're at 400 visitors today and counting, which is definitely a record for this modest blog. At any rate, if you're new here, welcome. I hope you find the place interesting.

Speaking of all of this, Eugene Volokh posts guidelines about how to attract attention to your blog. A few suggestions to add:

1: Find blogs with more traffic than yours, but not overwhelming amounts, the sorts that can still check their referral logs regularly. Then your links to their posts are more likely to inspire a response.

2: Update daily. If you want to attract a regular readership (and you may not) try to make sure that every day there's something there that most of your readers are interested in seeing (usually original thought rather than just a link to some news somewhere else).

[Amanda Butler, 6:07 PM]
I thought I might mention some of my thoughts on abortion:

1) I'm glad it's legal. I think it should be legal, during any trimester, in cases of rape, incest, or the life of the mother. I think it should be legally available during the first trimester; my conviction wavers more after that.

2) I haven't read yet read Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, or any of the other major cases dealing with the constitutionality of abortion. However, I am prepared to wave the flag of stare decisis and cry, don't take it away (especially not during the first trimester)!

3) I do not join Will's analogy comparing fetuses to parasites.

4) I would be much happier if doctors in Title IX healthcare clinics were allowed to discuss abortion with their patients, or were at least allowed to refer their patients elsewhere. I'm fine with the idea of a state chosing to pay the abortion costs for women who can't afford it. I'm glad Planned Parenthood clinics exist.

5) I think it's immoral to use abortion as a primary birth control method. I wish birth control were used widely enough that "life of the mother" was the most common reason for an abortion; were that the case, I'd hopefully see a world in which abortions would become exceedingly rare. I realize that rape, incest, birth control failures, and changes of opinion (ie, deciding that now is not the time to have a child) would still result in abortions.

6) I think abortion is the non-criminal taking of a human life.

[Will, 2:41 AM]
Dubious Crusades:

Now, as I've explained a bajillion times before, I'm all in favor of Senate filibusters in judge selection. But I think the latest New York Times editorial condemning Jeffrey Sutton is one of the sillier things they've written in a few weeks. They criticize him for espousing "federalism" (which they claim is a "euphemism" for states' rights), though they concede that it commands a majority of the Supreme Court (a narrow one, they insist) and is therefore the law of the land. They further criticize him for winning cases in front of the Court, arguing that the bill of rights forbids states from being sued without their consent (which it does) and that the "commerce clause" hook in the Violence Against Women Act was too dubious to pass constitutional muster.

These are not far-right ideas like Priscilla Owen's or Robert Bork's. These are the mainstays of new Rehnquist Court jurisprudence, opinions joined by Sandra Day O'Connor. If opinions joined by her, one of the most moderate justices on the court, are too far-right for the New York Times, then I can't imagine what they consider balanced.

The Times criticize Bush and Mr. Sutton for letting ideology get in the way of the law. But the blind and crippled protesters at Mr. Sutton's confirmation hearing were not making a fine point of federal law, they were making a political statement-- they like the Americans with Disabilities Act and they don't want anybody to take it away. But if an ideology-free court means anything (and the increasing hijacking of the term and associated rhetoric suggests it might not) it means that constitutional decisions should not be based on policy or protesting paraplegics.

[Will, 2:26 AM]
Calling a Spade a ?:

Amy Lamboley suggests that calling abortion "murder" might actually convince people. I'm not so sure, despite the "evidence" she elliptically references. My own personal guess is that testimonials and horror stories work, that religious arguments (in the right forum) work, and that those weird "pregnant? need help? call us." signs on the El probably work too. Even abortion protestors, the kind who harrass people outside of clinics, they probably work too.

But in the abstract, I'm not so sure. The concept that a fetus is human is new to very few people. Ditto the concept that a fetus is not human. (And the concept that a fetus is semi-human, as Amy posits). I'm really not sure who is swayed by the murder propaganda, but if the pro-life folks think that somebody is, far be it from me to stop them. I just think it sounds pretty silly, about as silly as when the libertarians insist that taxes are theft or the marxists tell you that property is. Then again, I suppose there are definitely impressionable children out there. . .

I didn't mean to say that the participants in this debate were rational, only that the irrationality that infects most of them (us) isn't particularly succeptible to bland moral assertion. At any rate, I'm no expert in rhetoric. I presume that the anti-abortion activists know what they're doing better than I.

[Will, 2:15 AM]

I don't usually watch football or blog about sports, but Rex Grossman, who was in high school with me (a year ahead of me) has just been named 1st-round draft pick by the Chicago Bears. That's pretty cool.

[Amanda Butler, 1:13 AM]
sad and awful -- more on the (I don't know what to call this) bust of non-drug dealers from Tulia, Texas (the really racist prosecution that's got what looks like 13 innocent people in Texas prison with very long sentences):

Go read Bob Hebert's piece about it in the NYT. He does it justice.

[Will, 12:17 AM]
Kansas and Oz:

As ought to be manifestly obvious, we have added color to our names, which ought to brighten the place up a bit, and also help tell our posts apart (just in case you ever confused us). Many profuse thanks to Eugene Volokh, who made this possible.

Sunday, April 27, 2003

[Amanda Butler, 2:05 PM]
I watch one Friends episode this entire year, and it happens to be the one Jacob Levy and Daniel Drezner discuss. What upsets Drezner is that "affair-with-coed is the only persistent trope in the fictional depiction of academics." That seems like a fair assessment of the dominant stereotype.

Why, though? ER has had great success with doctor-nurse, doctor-ambulance driver, and doctor-intern, but it's always also maintained good doctor-doctor storylines. I don't see that a relationship between the surgical doctor and ER doctor translates any better or worse into fiction than a relationship between the professor of con law and the professor of feminist philosophy. In fact, college students *like* gossip about relationships between professors--they have a sideline seat to all the action. From the student p.o.v., it's the relationships between profs (or admissions officers) and students that get creepy.

[Amanda Butler, 12:51 PM]
it may be beating a dead horse, but I'd like to say it:

Much has been made of Senator Santorum's notorious remarks. Commentary on it has picked up on his religious beliefs that influence his moral stance, referring to these belies as Roman Catholic, fundatamental Christian, and Christian.

There are many main-line Christian churches in America that do not support Santorum's views. These are the declarations of the denominations' national organizing bodies:

United Methodist Church: actively supports equal rights regardless of sexual orientation.
Evangelical Lutheran Church of America: is in the midst of a study on homosexuality. The ELCA currently ordains celibate homosexuals and do not think the Bible's teachings on homosexuality are clear.
Presbyterians: do not ordain non-celibate ministers or permit civil unions in the church, but find no " legal, social, or moral justification" to criminalize homosexual conduct or to discriminate against homosexuals.
United Church of Christ: ordained its first openly gay minister in 1972 (UCC is the union of the Congregationalist and Reformed Churches).

Furthermore, some Christians have left their denominations in order to found new branches that differ from the parent only by accepting gays. For examples, see the National Gay Pentecostal Alliance and the Rainbow Baptists, both fundamentalist groups. [Controversial social issues have caused large schisms in churches in the past. Slavery split the American Baptists from the Southern Baptists, and also divided the Methodists for many years.]

Although I've covered many Christians and fundamental Christians to show they are not anti-homosexual (pro-, perhaps), I realize I have not even touched upon many churches. The non-denominationalists are the first that jump to mind and I feel I should find some way to include them, but I'm looking for national statements of unified belief. I also haven't mentioned yet the Roman Catholics, Santorum's own denomination. I don't want to touch on doctrine there, so I'll just say that many Catholics would like the Roman Catholic Church to be far more inclusive; Santorum does not speak for them.

[Will, 12:28 PM]
2000-2004 Redux:

Matthew Yglesias responds to my post on Republican chances in 2004 (not one of my better posts, at any rate).

He suggests that the major Bush problem will be dealing with a paradox-- is the economy bad because Bush's economic policies are bad, or is it bad because Bush hasn't fought off terrorism well enough. This might be the way the public ends up viewing it, but I'm not convinced. Here are some other possibilities (and I'm not taking a stand on which, if any, is right, but I hope they're all somewhat plausible. As war in Iraq showed, different people can do the same thing for different political reasons).

Possibility 1: Neither of the above. The economy is bad because of terrorism, but it would have been far worse if we'd responded to the crisis badly. Blaming Bush for a terrorized economy is like complaining to the police that although you got your car back, your gas tank is empty.

Possibility 2: Blame Clinton. The economy is bad because it never should have been so good in the first place. The Internet-based euphoria of the Clinton years was bound to crash no matter who was in charge next.

Possibility 3: Blame Enron. The economy is bad because of the evil corporations that made it that way. But since various new reforms are being instituted (like BCRA, and the SEC overhaulf) Bush can claim credit for our partial recovery.

Possibility 4: Blame Congress. The economy is bad because congress won't pass all of Bush's tax cuts. This is risky because there are so many Republicans in Congress.

All of these are sub-classes of the general argument that not everything that happens to the country is the president's fault. I think one has to be naive to assume the 9-11 hijackers wouldn't have attacked if Gore had been president. Economic and military "shocks" happen to countries all the time. Sometime, like during Reagan's term, this results in undeserved popularity. Other times, like during Carter's term, this results in undeserved criticism. The important political issue is whether the president can appear to be responding properly. The mystifying "leadership" polls give the sense that a lot of people think Bush has.

But the paradox isn't too serious. I think most people (rightly) think that he's not so great on domestic policy, but did a pretty good job of responding to external threats to the U.S. and keeping us safe. Anyway, I think the unspoken presidential motto (not nearly as rousing as the Pro-Clintonism in which I happily partook) will be "it could be (a whole lot) worse." This is not to say I think the president should win re-election, nor to say that I don't think his economic policies are both mystifying and disastrous. I'm not sure I can forgive him for steel tariffs.

P.S. And for those new here, my last name is Baude.

[Will, 11:46 AM]
Tom Friedman:

This is, as always, worth reading.

[Amanda Butler, 10:30 AM]
I think Will will either appreciate this or hate it:

This week's Style Invitational was the annual contest where they ask you to "mate any two Triple Crown-eligible horses and name the foal". The Post already did its readers the favor of running the long list of eligible names for the parents of the hypothetical foals.

and the winner is -- "Mate J Alfred Prufrock with Wordsworth and name the foal Lonely As A Clod (Emily Lloyd, Milford, Del.)"

[Amanda Butler, 10:16 AM]
for springtime career anxieties:

Last week, the Washington Post published a list of the top 10 reasons why you should and shouldn't work for the federal government.

The interesting work (#2) is what would first tempt me to work for the government, but I also lean towards the government because I see it as standing in between academia and the corporate world (job security replaces tenure, and "public service" is somewhere between "pursuit of pure knowledge" and "being entreprenurial").

Hmm, these lists do seem slanted towards getting more people inside the beltway. Working for a bureaucracy sounds like the worst of it.

(thanks to dclawstudent for pointing these out, and no, there's nothing in the lists' reasons that's specific to legal jobs.)

[Will, 10:01 AM]

After Abortion links to a confidential survey about men whose partners have undergone abortions. My favorite question:

21) To what degree have you forgiven the person, other than yourself, whom you most blame for the abortion?
1-not at all/2/3-in progress/4/5-completely

Forgive? Doesn't this question remind you of the old joke: "Do you still beat your wife?"

[Will, 9:40 AM]
Oh Dear:

The latest search result somebody used to get here: "extreme nude children".

[Will, 1:54 AM]
A few notes to bloggers and blog-readers:

1: Republish your archives whenever you post. It's terribly annoying to link to you otherwise. ("archive" is between "template" and "team" when you're blog-editing)

2: If your internet domain is slightly unusual, then remember, we know how often you visit. And we sometimes wonder.

3: If you know how to make different bloggers names come up different colors like the volokh gang, please email me.

4: Never hesitate to email us (or at least me) interesting links.

5: Never tell friends "oh, go read about it in my blog."

6: Thanks for reading us; please keep visiting.

[Will, 1:45 AM]
Election Redux?:

Matthew Yglesias thinks that the Democrat's performance in the next election will be well predicted by the results of last election. I'm unconvinced. Bush's momentum is. . . momentous. It isn't just a case of incumbency, though that certainly helps, but rather of what has changed in the past four years.

The president has presided over the greatest terrorist attack on American soil, and one of the cleanest, least deadly wars of recent history. It's hard to make the case that we're clearly better off than we were three years ago, but on the other hand, things could certainly have gone a whole lot worse. I'm sort of agnostic about whether Bush handled our problems better than Gore would have. William Safire had an interesting column about Gore's strong leadership abilities sometime during the 2004 campaign.

But at any rate, what should be clear is that there's no particular reason that this vote should be like the last vote was; Bush was running originally as a relatively undistinguished governor with a focus on "compassionate" if scanty domestic programs and an unclear policy about education. Now he'll be running as a victorious commander-in-chief and leader of the free world, with some uncomfortable moments of far rightness.

Personally, my vote will be determined (mostly) by the upcoming judiciary battler for any Supreme Court seats vacated soon. If Bush's nominee is really good, I'll vote for him. If the opposing candidates stance on him or her is particularly incisive, I'll vote for him. If both sides make me sad, it's back to the libertarian ticket (ceteris paribus).

UPDATE: Responses to Matthew Yglesias are here.

Saturday, April 26, 2003

[Will, 11:24 PM]
Clever Clayton Cramer?:

Ridiculing the "Old enough to fight? Old enough to vote" bumper stickers (from back in the day), Clayton Cramer writes:
In the context of the times, it meant that if you could be drafted at 18, then you should be able to vote. Did that mean that women, who weren't drafted, shouldn't be allowed to vote? Did it mean that those beyond draft age shouldn't be allowed to vote? You see where cleverness gets you.

Don't get too good at that, Mr. Cramer. Asserting that A ought to imply B is not the same as asserting that not A ought to imply not B. When the revolutionaries cried "no taxation without representation" I don't think they used that interchangeably with "no representation without taxation".

Those who get involuntarily sent off to foreign shores to die for armchair generals like Mr. Cramer ought to get a vote in whether or not they have to go fight in the first place (and now they do). Some other people ought to get a vote too. What's the problem with that? Don't assume that just because it fits on a bumpersticker, it's wrong.

[Will, 11:04 PM]
Compare and Contrast:

John Kerry:
I said to people long ago and I held to this during my Senate campaign, I came to politics based on my own initiative and my own effort to raise money and that's the way I want to finish my life in politics. Teresa's money is Teresa's money and I've declaratively stated that. (3/24/03)

with John Kerry:
I'm going to, as I've said all along, I'm going to reserve, I don't have any special plans right now. (4/23/03)

[Will, 10:42 PM]
Rubbing shoulders with Greatness

Okay, it's more like sitting at Greatness's feat in lecture. My "economics of crime" professor from last spring, Steven Levitt, has received the John Bates Clark Medal in economics (It's awarded every other year to an economist under 40; over 1/3 of its winners go on to Nobels). If you're at the University of Chicago, and even vaguely qualified to, take his class next year. It's amazing stuff.

[Amanda Butler, 10:11 AM]
another by-line rarely seen in the NYT:

Yesterday saw "Dan Savage is editor of The Stranger, a weekly newspaper". He had a tame but good piece, G.O.P. Hypocrisy.

[Amanda Butler, 9:45 AM]
I'm torn on the tone the New York Times seems to use when it runs stories about small towns. While the NYT often doesn't sound very respectful when talking about places with populations smaller than that of a big-city apartment building, I can't say the towns' actions actually merit much respect.

See: Hear the One About the Mayor Who Wanted to Ban Lying?. It's Mount Sterling, Iowa, population 40 or 53, depending on whom you ask. Tall-tales are entertainment.

--- "A Minneapolis lawyer has offered to draft the no-lying law, though he warned there might be some First Amendment problems." ---

might? That's a nice little understatement. And the prof's comments below don't support the proposed ban.

--- "William Miller, a law professor at the University of Michigan who teaches a seminar called "Faking It," pointed out that lying is already prohibited in many instances ? fraud, to begin with. 'It's illegal in precisely those settings where it should be, where somebody uses it to take advantage of somebody else,' Professor Miller said. 'But think of all the lies that confer benefit to people: I love your new hat. I had such a good time at your party.'" ---

Aren't most tall-tales presented as fiction and understood by the audience as such? If you attack them, I think you should attack all forms of fiction. It's not unprecedented. The novel was originally seen as immoral because it was a lie. When Daniel Defoe published Moll Flanders*, he could have been in actual trouble for knowingly presenting something that never occurred as a true event. Instead, he presents it as an autobiography that he has simply transcribed. Unfortunately, I don't know if the readers bought it as the truth or understood it as fiction.

Ch. 1 begins: "My true name is so well known in the records, or registers, at Newgate and in the Old Bailey, and there are some things of such consequence still depending there relating to my particular conduct, that it is not to be expected I should set my name or the account of my family to this work; perhaps after my death it may be better known; at present it would not be proper, no, though a general pardon should be issued, even without exceptions of persons or crimes."

*The Fortunes & Misfortunes of the Famous Moll Flanders & c. Who was Born in Newgate, and during a Life of continu'd Variety for Threescore Years, besides her Childhoood, was Twelve Year a Whore, five times a Wife (whereof once to her own Brother), Twelve Year a Thief, Eight Year a Transported Felon in Virginia, at least grew Rich, liv'd Honest, and dies a Penitent. Written from her own Memorandums.

It sounds like if you were going to raise a cry of immorality, you might be concerned about the story being told rather then whether it actually took place. Defoe wrote a Preface addressing that concern. It's a morality tale to teach readers of the disguises the wicked take, how they may be avoided, and how one can finally repent.

[Will, 1:42 AM]

Argentina is having elections tomorrow. Maybe you don't care. But these are kind of important elections, the big decision between whether Argentina will turn aroud and embrace free market economics, or continue trying to fight its way out of the bag by sheer economic willpower.

On the one hand, you can't blame the Argentinians for doubting free markets, since the University-of-Chicago-designed fixes that were supposed to pull the economy out of the gutter . . . didn't. Of course, nothing else did either. So market reform (briefly) failed, and so did everything else. Make what you will of that. The leading candidates (the top two of which will enter a runoff) are Ricardo Lopez Murphy and Nestor Kirchner. The former is a center-right U of C alum; the latter is a Patagonian Peronist. The other major contender is theformer President Menem.

A note to any readers who happen (what are the odds?) to be voting tomorrow: elect Lopez Murphy (polls predict him cleaning Menem's clock in a runoff). Market reforms are painful things, and messy ones. But markets are well-nigh inevitable, and market reforms are far better than market unreforms. Ask Russia.

[Will, 1:17 AM]
And while we're at it:

One more thing from the conservatism blog, then I'm done for the night, I promise. The latest post (bloggered link here; general link here) The post includes these gems:
If she's a PUKE, she also BELIEVES she has that illegal, patently immoral "right" to kill another human being just because the human being grows inside her.

Am I allowed to kill my children just because they live in "my house"? How is that materially any different? I'm paying for and raising them, but if they interfere with the smooth operation of my life, why can't I just kill them?

First off, let me just remind my friends on the other side of the abortion conflict (with which I really do sometimes sympathize) that making snide comments about murder really doesn't win new supporters, though maybe it sort of titillates the old ones. Secondly, it does seem to me that a thing that "grows inside" you is fundamentally different from a thing that lives in your house. I hate to put it like this, but it's worth remembering that a fetus is essentially a biological parasite, taking in nutrition from its host until it springs into the world. (Yes, I know, it's an unborn baby, that too.) And there's something different between a thing biologically attached to you that siphons off nutrients and energy and a thing that lives in your living room and mooches out of the fridge.

But really, I wish pro-life/anti-abortion folks would be more explicit about the real debate (at least, this is what I think the real debate should be). To make a convincing case that abortion is murder, you have to establish that a fetus is a human being. (A position that the courts, such as they are, has never taken, by the way). If you believe that, then being anti-abortion makes a lot of sense; maybe one human can't terminate another on grounds of mere happiness or convenience. If you don't believe that, the argument becomes much weaker (though perhaps not entirely unwinnable).

But is a fetus a human being? I'll leave this to the experts in medicine and biology, but I'm a law school hopeful, and I can reason by analogy and implication. If a fetus is a human being, then shouldn't people be able to drink nine months before their 21st birthday? If a fetus is a human being, should it have a name? A social security number? Can it own property (some babies can)? Where would it keep it? Can it be adopted (before birth)? Can a pregnant woman list it among her dependents?

I don't mean to say that these (often trifling) questions establish that a fetus is not a human being, but it's clear that our legal system and our society generally operate under the assumption that it's not. Think of your use of the English language. When you see a pregnant woman walking down the street, do you refer to them with the pronoung "they"?

Of course, abortion practices were criminalized once, the conservatives (and originalists) cry! Yeah, but so was birth control. You want to reopen that debate?

Anyway, abortion is a difficult topic and semi-reasonable people can disagree, though it's better if they remain reasonable while doing so. And I think I speak for a lot of libertarians and libertarian-types when I say:

Convince me that a fetus is a human being, entitled to all the rights and responsibilities that that entails. And then I'll give you your abortion prohibition.

UPDATE: Reader Nick Tarasen points out another consequence of declaring a fetus a human being-- it bestows upon the state a broad right to regulate alcohol, drug, and good intake by the mother. This may not trouble some readers, but it may deeply trouble some others.

[Will, 1:02 AM]

The Dixie Chicks pose nude on the cover of Entertainment Weekly. (picture here). Of course, they're not very nude. Arms and so on are conveneniently placed and folded, so the effect isn't far from what what Jennifer Lopez or Christina Aguilera wear to concerts. They're appearing in a response to the backlash against them (Maines said that she was ashamed that Bush was from Texas).

Stephen thinks this shows that they are idiots, and that it was wrong for them to criticize the president overseas. I've pondered this question once before, and I don't see anything wrong with being ashamed of President Bush, overseas or not. Of course, fans are free not to buy their records, which is what's been happening. So to apportion moral blame on either side of this show-biz conflict seems kind of silly.

As to Stephen's claim that this shows nothing, let's play a game of artistic interpretation. I think the Dixie Chicks cover antics show:

1: The Dixie Chicks look nice without their clothes on.

2: The Dixie Chicks are willing to appear without their clothes on.

3: The Dixie Chicks are not going to attempt a Lott-style backpedal or a Santorum-style delineation (though Maines said she does regret her word choice). Determining whether this is a difference between the left and the right or simply a difference between pop-country singers and Senators is left as an exercise for the reader.

4: The Dixie Chicks look nice without their clothes on.

5: Nakedness still works as an attention-getting ploy.

Recap: So some famous people said some things that a lot of people didn't like. Those people got angry. The first people, the famous ones, decided to take their clothes off. This made some people like them, and made a lot of people pay attention to them. Then they told people they didn't mean what they said, but they're still anti-war. What's the problem? That nudity has been (gasp) used as a marketing ploy and attention-getting device? That the nudity is (gasp) irrelevant to the underlying message?

It's a tool. Sounds like it's an effective one. Welcome to show business.

[Will, 12:48 AM]
Incestwatch Redux:

William Saletan writes another incest column for Slate. Discussing the only appellate case dealing with a constitutional claim to incest that his readers could find, Saletan writes:
. Laws against incest apply in theory to both participants, and in this case they applied in fact. If you want to justify incest laws, don't tell me why Ami Smith's uncle belongs in jail. Tell me why she belongs there, too.

Friday, April 25, 2003

[Will, 9:37 PM]
Free Tibet?

Speaking of the Dalai Lama, I've been wondering. When celebrities hold a fundraising concert to "Free Tibet," where does the money go? To lobby American lawmakers into supporting Tibet? To hire mercenaries? Is there some secret swiss bank accoutn in the Dalai Lama's name that will eventually be used to just buy Tibet?

UPDATE: Reader Brian Ulrich suggests the Tibetan goverment in exile's official website.

[Will, 9:26 PM]
You can't miss this.

How many times does a New York Times op-ed piece end with these words?: Tenzin Gyatso is the 14th Dalai Lama.

[Will, 12:54 PM]

A ceritified question from Diotima: What do I mean when I say I am "pro-vice?"

First off, vice. There are a lot of possible definition, but I use it as shorthand for the set of allegedly "victimless" crimes often forbidden b modern society. Generally these include drugs (including tobacco and alcohol), pornography, prostitution, certain sex acts generally, and gambling.

What does it mean to be "pro-vice"? There are two possible meanings (which did you mean?--ed. Hold your horses.) The first meaning is to be "generally against the regulation of vice," a position one can hold for moral reasons or economic ones. The moral case is (largely) that espoused in Mill's On Liberty (within bounds), that it's wrong to stop people when they're hurting only themselves. The economic case is one that many of our current policies (the drug-war being the most famous example) are pretty appalling, from a cost-benefit point of view. Of course, the economic case has to be tied up with the moral one, since one has to figure out how to count the costs and the benefits. Still, within assumptions that most people will buy, one can marshall decent evidence that many of our criminal laws against these kinds of behaviour ought to be changed or relaxed (if you ever want to puzzle an economics major, hand him a list of the regulations that riverboat casinos have to comply with). So one can be "pro-vice" because one belives that the drug war causes too much violence, that state lotteries raise useful money for schools, and regulation of prositution controls more disease than prohibition does. Or one can be "pro-vice" in that sense because one believes that it's flat-out evil to stop people who want to have sex with rich men from getting rich on it themselves, or because one believes that if a lonely, sick man wants to get high, it's unabashed arrogance to force him to remain in this (painful) reality.

I'm pro-vice in the above sense. But there's a second sense in which one can be "pro-vice," and it's another sense in which I am. I approve of a certain amount of vice. I practice very little of it myself-- I've never solicited a prostitute, I almost never get drunk, I've never smoked or injected anything, I only gamble with friends, and so on. Still, I'm glad that these things exist. They represent a certain amount of enjoyment, and I think that on the whole they make the people who do them pretty happy (though certainly not always). Widespread dissemination of pornography isn't a cost of the internet, it's a benefit. I tend to react more favorably to people who regularly exercise at least one of the above vices, though I feel different about different ones. I'd be angry and sad if my best friend started using Cocaine. I'm vaguely amused and occasionally bemused by how much he drinks. I play poker with him any chance I get.

So I'm pro-vice in the sense that I think we could make the world a happier place for everybody by shifting police resources from marijuana to domestic violence (if we're going to enforce massive penalties against the things people do in their own homes, why don't we focus on the ones where people get violently injured?). I'm also pro-vice in the sense that I think we shouldn't stop people from engaging in largely self-regarding behavior, even if we think they shouldn't want to do it. Finally, I'm cautiously pro-vice in the sense that I personally don't mind if my friends engage in vice, so long as I think they're taking a proper view of the consequences.

[Will, 8:46 AM]
All to Easy:

Amy Lamboley clubs some baby seals (the Thursday "Evolution" post).

[Will, 8:22 AM]
Compare and Contrast:

Shonda Werry (currently bloggered) with Matt Yglesias.

She writes:
Santorum is a credible moral voice, even if the Oxblog guys, Matthew Yglesias, and, from the looks of it, most of the men in The Corner disagree with his belief that sodomy should remain illegal. That there are people who do not share his morals does not weaken his moral credibility.

He writes:
Well of course he has every right to speak about moral issues, but that's really neither here nor there. People have rights to do all sorts of things (at least that's why I think, Senator Santorum seems to disagree), but that doesn't mean they should do them or that other people should consider them credible.

I think Mr. Yglesias's point is spot-on. Put differently, Virginia Postrel reminds us: this isn't an argument solely about sin, it is an argument about criminalizing conduct. And in a democratically-elected government constrained by an undemocratic court, it's the people, and then the judges, who get to decide what is a sin.

Now, Senator Santorum has every right to call homosexuals whatever he wants, (just as he has a right to have sex with some of them if he'd like to; he can even do both at the same time). But the fact that there are people who don't share his morals does weaken his moral credibility. The more a religiously-motivated politician espouses outmoded and reactionary doctrine, the sorts of things that most people (including many of his faith) wouldn't dare say, the more suspicious we ought to be.

This is not to say that minority moralities (as mine most certainly is) are inherently wrong, but only that they should undergo stricter scrutiny. Call it the Condorcet Jury Theorem, if you like. The fact of the matter is that I, and most people in the country (if not in the ancient and honorable state of Texas) think that sodomy laws should not exist.

The further fact is that Senator Santorum made a lot of people very angry when he spoke. This is neither here nor there-- there's nothing immoral about making people angry, though many people think there's something immoral about what he said. And come election day, we'll find out how many people care. It is only within the broad constraint of regular democratic election that a politician is permitted to impose his own queer predilections upon the nation (although of course, Santorum's predilections are so far in the minority, and probably prohibited from the Federal government by the constitution, that it seems unlikely the Senate will pass a sodomy law any time soon).

UPDATE: One last thought. Suppose you were in a deep ethical dilemma. You're a mother and your daughter had become a lesbian, and you were uncomfortable with that, but couldn't decide whether you ought to disown her because of your disapproval, or offer her your love and support (and perhaps hope that your love might keep her from further rebellion). Would you turn to Senator Santorum for guidance?

I don't know. Throwing your daughter in jail seems a little excessive, even if she's slept with half the girls at Brearley. And Santorum's argument isn't terribly convincing to those who don't already believe him. Sure, Santorum is "credible" in the sense that I'm sure he deeply believes what he says. But he fills me with very little desire (or ability) to believe him myself.

[Will, 8:11 AM]
More Hard-to-Bear Economics:

The usually leftish Mark Kleiman, arguing that giving lifeboats to the rich but not the poor was the right choice for the Titanic to make.

[Will, 1:09 AM]
The Greater of Two Evils:

Michael Kinsley, on organ markets:
But the counterargument is also strong. It is easier to see in the case of a one-on-one deal. For example: Should a rich person who needs a kidney replacement be allowed to buy one from a healthy poor person? The answer of all the advanced democracies is: no. Human kidneys should not be part of the dollar economy. A rich person shouldn't be able to get one of yours just because he has more money. But outlawing this deal doesn't thwart just the rich person. It thwarts the poor one too. He thinks he'd be better off with the cash than with the second kidney. We think it's terrible that he has to make that choice, but we're not offering a third alternative. We're just forcing him to take what he thinks is the worst of the current two.

[Will, 12:45 AM]
Nuremberg II:

(see directly below). The Nuremberg Files lost a suit in the Ninth Circuit that held (wrongly, says Volokh) that they fall under the constitutional definition of a "true threat" so they've republished without the little strike-through lines through people's names. Is this what the First Amendment demands?

More bizarre, though, is that on their page of aborted abortionists they include Paul Wellstone. That's just a little eerie (but helps make the point that the NF aren't threatening violence from themselves, which should have let them win their First Amendment claim).

[Amanda Butler, 12:37 AM]
Will (see directly below) is right that After Abortion is kind of scary. For truly frightening, there's The Nuremberg Files. It's possibly only just on the constitutionally protected side of incitement (the First Amendment freedom of speech protects quite a lot -- Supreme Court has yet to rule). This is the website that asks for information about doctors who perform abortion --
"Photos or videotapes of the abortionist, their car, their house, friends, and anything else of interest (as many and as recent as possible); Current and past personal data including date and place of birth, home and business addresses and phone numbers, Social Security numbers, automobile plate numbers, names and birthdates of spouse(s), children and friends" --
and then there's a list of the names of a lot of doctors who perform abortions. Name in a black font means the doctor is still working, name in grey means that the doctor, has been wounded, and a name struck through means the doctor has been murdered. Below that, you can click to see the office addresses of these doctors.

Terrible and depressing.

Thursday, April 24, 2003

[Will, 11:20 PM]
Dear me:

I finally dared to go over and look at After Abortion.

The archives haven't been republished recently, so I thankfully can't permalink all that I found there. But the site includes:

1: The claim that college students are choosing to become prostitutes to act out their own self-hatred about having abortions.

2: The claim that the ACLU originally had written "the deep emotions that full-term but not yet delivered babies evoke in Americans" rather than "the deep emotions that fetuses MAY evoke for millions of Americans" (emphasis hers, not the ACLU's)

3: Links to the old abortion causes breast cancer junk. (At least, my understanding is that it is junk. Maybe I'm wrong).

It's really kind of scary. Not in that "oh my god, abortions are terrible" kind of way, but in a "right wing politics with soft and fuzzy gender studies rhetoric" kind of way.

[Will, 11:03 PM]
Further Reading:

Readers of Amanda Butler's post below should look at Jacob Levy's old old post on this sort of question.
. On one hand, parties matter. If the southern white rural man votes for a Democrat for Senate, he may end up with a pro-gun-rights Senator-- but an anti-gun-rights Senate Majority Leader and chairs of all the relevant committees. Similarly, if a northeastern pro-choice suburban woman votes for an Olympia Snowe or Lincoln Chafee (or, until last year, Jim Jeffords) for Senate, she might get a pro-choice Senator, but she'd ensure a pro-life Majority Leader and pro-lifers' control over most committees.

And much more.

[Amanda Butler, 8:52 PM]
Eugene Volokh and Jacob Levy have an interesting discussion on Democrats, Republicans, Libertarians, and how to vote conscientiously.

I'm a bleeding heart liberal who would be overjoyed if the government stepped in to erase the disparities in public school funding so that all kids, from New Trier, IL to Tallulah, LA (or from DC to Fairfax County, VA) could get education of something closer to the same quality [and Will, don't you or anybody else email me to say it's impractical and would never in a million years work. It's a wish. It can work in my dreams.] But I also believe Chicago econ when it tells me that minimum wages, rent control, and a host of other programs just don't work, even though they have great ends. The Democrats tend to offend than the Republicans do against the laws of supply and demand, but the Democrats are also more likely to stand with me on social issues. I'm pro-choice, pro-gay rights, pro-gun control (as I have been since 1992 when Yoshi Hattori was shot). But I'd never really stopped to think, what chance do my social policies have of passing (or of being overturned). I'd realized then that voting is signalling, and surely, some of those people scared me. It's not the clearest signal -- were the people who registered on NaderTrader Naderites or did they just want to support third-party involvement -- but a sign none the less. Next time I vote, though, I'll have to start thinking more like Jacob Levy.

A sad instance of signalling while voting, if they meant what I think they mean:

"[W]hen the outspoken racist and former Ku Klux Klan leader David Duke won a seat in the Louisiana legislature in early 1989, one expert commentator after another came on the morning news shows to announce that unemployment was high in Duke's nearly all-white district and therefore the election turned on economic grievances rather than racism. Viewers were thus treated to the exotic notion that, when white workers react to unemployment by electing a prominent white supremacist who promises to gut welfare programs, they are acting on class terms, rather than as working class racists." - David R. Roediger, The Wages of Whiteness: Race and the Making of the American Working Class, rev. ed., p. 8.

And on an entirely different note: I think the coffee at work is a depressant. It tastes so awful that sipping a half-inch wakes me up, but actually downing the mug puts me to sleep.

[Will, 4:39 PM]
Evolution Redux:

Re: my post from yesterday... they're everywhere.

[Will, 4:36 PM]
Worth Reading:

Virginia Postrel on Trading Spaces.

[Will, 2:38 PM]
A Half-Facetious Question:

If the government may constitutionally ban sodomy, may it constitutionally ban masturbation? How about banning chastity?
AE Housman: …the Church’s idea of the good and the beautiful excludes sexual aberration, apart from chastity, I suppose because it’s the rarest.

Tom Stoppard— The Invention of Love

[Will, 12:43 PM]
Move over Franzia:

The New York Times, on the latest cheap wine craze (I'm skeptical, but Amy Lamboley insists that the wine is not bad. Certainly it's better to pay two dollars for an undistinguished wine than to pay ten. I'll reserve judgment until I get into Stanford Law School (dare to dream) and can test.)

[Will, 12:36 PM]

Virginia Postrel claims that Volokh's latest comments on incest have ("and not for the first time") scrapped his chances of a Federal Judgeship. For those of us on the Volokh-Judiciary-Watch, this is sad news, and we hope it's not true. I wonder what she thinks his other indiscretions were.

UPDATE: I emailed Ms. Postrel to ask her and she pointed me to his post on "why don't fathers want their daughters to be lesbians?" Aie. Of course, I agree with him entirely, but as recent events have shown, judicial nominations are not always an intellectually rigorous process.

[Will, 12:29 PM]

Shonda Werry posts (link is bloggered, but won't be once they republish their archives) about a "disturbing" article in Glamour magazine. She writes:

According to the article, an alarming number of girls in the US and Canada are taking up prostitution, not out of desperation, but out of greed.

So what? I had thought that the complaint about prostitution was that people were doing it out of desperation. Surely it's not alarming that a lot of girls are having sex. And surely it's not alarming that a lot of them are making money. If a lot of them-- ones that aren't forced into it by economic desperation or capitalist oppression or whatever-- are doing both together, what exactly is the problem? (Other than, perhaps, the downfall in conservative morality that this is a symptom, (if not a cause) of...)


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