The Volokh Conspiracy 


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Virginia Postrel
Dave Kopel
James Lileks
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Iain Murray
Emmanuelle Richard
Matt Welch
Ken Layne
U.S.S. Clueless
Tim Blair
How Appealing


Tuesday, May 28, 2002

ABORTION-CAMS: Today's Wall Street Journal has a page 1 story titled "Photos of Women Who Get Abortions Go Up on Internet." There's a network of people who stand outside abortion clinics and take pictures of people who go into the clinics; they then send the pictures to Neal Horsley, who puts them on a Web site ( "Shame enough women into realizing that eternal damnation awaits them if they murder their baby and the abortionists won't have any work to do," one of the photographers says. But, as others point out, the photos may be more than just shame -- they may also be used by those who want to actually commit violent acts in retaliation for the women's conduct.

     I sympathize with the people who are involuntarily getting their photographs taken. I'm generally pro-choice myself, but I like to think that even if I wasn't, I'd want to keep the individual women out of it. The view that "the personal is political," whether from the Left or from the Right, often leads to excesses that are ultimately lose-lose propositions -- they hurt the individuals who are caught up in the activism, and at the same time hurt the activists' cause by alienating moderates. On the other hand, I realize that perhaps I take this view just because I am indeed pro-choice; if I really thought that abortion really was tantamount to murder, I might take a different view towards the murderers, even when they are just pregnant women.

     But in any event, the constitutional issue strikes me as quite clear. As the Wall Street Journal mentions (though twenty paragraphs into the story), the Supreme Court faced a very similar question in NAACP v. Claiborne Hardware (1982) (the same precedent that I've mentioned in relation to the Nuremberg Files case). In Claiborne, the organizers of a black boycott of white-owned stores stationed "store watchers" outside each store; these store watchers took down the names of the black shoppers who violated the boycott, and the names were then read aloud in church and published in a newspaper. Some of the boycott violators had shots fired through their windows. Others were beaten or otherwise attacked.

     The Court nonetheless held that the recording and the publication of the names was protected, even though the purpose of the behavior was to shame people, and one possible effect was to make it easier for others to commit crimes against them:
Petitioners admittedly sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. . . . "[O]ffensive" and "coercive" speech [is] nevertheless protected by the First Amendment.
I think this was probably the right decision, though I'm not sure. But I am sure that once this has been found to be constitutionally protected when done by the civil rights movement, the same has to be protected when done by the pro-life movement.

     The only credible distinction that I've heard between the two cases is that one involves a "private" activity such as getting abortions, while the other doesn't. But, first, deciding whether to shop is also the kind of decision that many people don't want publicized (especially when publicizing it may cause social ostracism). And, second, I don't think the First Amendment distinguishes publishing the names of people who you think are doing evil because (in your view) they lack solidarity with their fellow blacks from publishing the names of people who you think are doing evil because (in your view) they are murdering their babies. The two political movements are equally entitled to the First Amendment's protection.

     So if the Court overturns Claiborne and holds, for instance, that one may not try to accomplish political goals by targeting private individuals going about their daily lives, then could be shut down. Again, I think that would probably be wrong, but at least there'd be a credible argument. But while Claiborne is the law of the land, it seems to me to squarely protect what the abortioncams people are doing, offensive as we might find it.

CROSS-BURNING: The Supreme Court just agreed to rehear a Virginia Supreme Court decision that struck down the Virginia crossburning ban. Should be an interesting First Amendment case (which will be called Virginia v. Black).

     I tentatively predict that the Court will agree with the lower court, and will hold the law to be unconstitutional: A general ban on threats is permissible, but a ban that singles out threats that convey one particular viewpoint is not, per the Court's decision in R.A.V. v. City of St. Paul (1992).

     Why, you might ask, did the Court agree to rehear the case, if it agrees with the lower court? Because lower courts had reached different results on this issue, which the Court treats as a strong reason to step in and resolve the conflict.

KPCC LISTENERS: You can find the most recent Ninth Circuit U.S. Court of Appeals decision in the Nuremberg Files case by clicking here.

     The leading precedent in this field is the U.S. Supreme Court's decision in NAACP v. Claiborne Hardware (1982), available here.

     An important part of Judge Kozinski's dissenting opinion, which explains why under Claiborne Hardware the defendants' speech is protected, is excerpted here.

     My Wall Street Journal op-ed, written after the earlier decision that the Ninth Circuit has just reversed, is here.

SPACE SABBATH: From The National Post:
Jerusalem, we have a problem.

As if weightlessness, cramped conditions and the enormity [sic] of the galaxy were not worrying enough, a crew member of the
next space shuttle mission is facing an additional problem: How do you observe the Sabbath when it occurs once every 10 1/2 hours in orbit?

Colonel Ilan Ramon, who will become the first Israeli to leave Earth as part of the crew of Columbia in July, has caused consternation among rabbis by asking how -- or more precisely, when -- to mark Judaism's day of rest.

The problem stems from the fact Jews are required to observe the Sabbath "every seventh day," starting at sunset on Friday evening and ending the following day "when three stars are seen." . . .

Aboard the space shuttle, however, Col. Ramon will orbit the earth every 90 minutes, with each orbit counting technically
as a day because from his perspective the sun has risen and set. The stars will be visible to him at all times. . . .

While Col. Ramon is not the first Jew to become an astronaut, the 47-year-old pilot is the first to want to practise his faith in orbit, to the extent that NASA has already agreed to provide him with kosher space meals.

Rabbi [Jonathan] Romain did, however, offer a different way out of Col. Ramon's difficulty. "His fellow crew members are unlikely to
appreciate him taking time off during what is likely to be a very intense mission, especially as it might endanger their lives. There is a Jewish principle which says that saving life takes precedence over all religious rituals, so on those grounds he could be relieved of his obligations." . . .
Question: Wouldn't this issue have already arisen, though with unusually long days, beyond the Arctic and Antarctic Circles?

FIRST HISPANIC SUPREME COURT JUSTICE? Conventional wisdom says President Bush will appoint the first Hispanic U.S. Supreme Court Justice, quite possibly Alberto Gonzales, the current White House Counsel and former Texas Supreme Court Justice. It turns out, though, that under one common definition of Hispanic -- a definition that's officially used by the U.S. government itself -- there has already been a Hispanic Supreme Court Justice.

     Who was this great man? Justice Benjamin N. Cardozo, one of the leading lights of the bench and bar of the first half of the 20th century, who served on New York State's highest court with great distinction and then served on the U.S. Supreme Court from 1932-38. (Curiously, Cardozo is more remembered for his pre-U.S.-Supreme-Court work, perhaps because he died so soon after being appointed.)

     Note the Hispanic surname, a traditional way of testing Hispanic status; actually, I think the name is Portuguese, but if it's good enough for the U.S. government, it's good enough for me: Title 49, section 26.5 of the Code of Federal Regulations (the definition that's used in the contracting race preference programs administered by the Department of Transportation) defines "Hispanic Americans" as
persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race.
There's no doubt, to my knowledge, that Cardozo was indeed of Spanish or Portuguese origin; in fact, a recent biography describes the shaping experiences of Cardozo’s youth as including participation in a leading Spanish-Portuguese cultural organization. True, his family probably left the Iberian Peninsula over 350 years before his birth, but that's true of many Hispanics as well. And he likely had no American Indian blood, but that's true of many Hispanics, too.

     As it happens, Cardozo was a Sephardic Jew, which is to say (at least in his instance) a Jew whose family lived on the Iberian Peninsula but was eventually expelled in the 1490s. The Spanish-Portuguese organization was New York's Spanish-Portuguese Synagogue, a prominent Sephardic congregation.

     Actually, I can certainly understand both why many Hispanics would be enthusiastic about having a Hispanic appointed to the Court, and why they wouldn't count Cardozo as one of them: Ethnicity tends to be defined in practice by felt cultural bonds, and not by Code of Federal Regulations definitions. Still, it's an amusing little factoid, so I thought I'd pass it along.

SEX AND VIOLENCE: People often argue that it's wrong for the law, society, and parents to treat depictions of sex worse than depictions of violence: For instance, they ask, how can the law ban the distribution of sexual imagery (e.g., Hustler magazines) to teenagers when people are free to distribute violent imagery to them? Or, more broadly, why should parents treat their kids watching a pornographic movie differently from their watching a horror movie or a Sam Peckinpah movie?

     I think this is an important argument, which deserves a response; but I'm ultimately not sure it's quite right, and one reason is the following question that came to me when I was writing something about this (for the Teacher's Manual to my textbook): Which would trouble you more -- seeing your kids play Cops & Robbers, or seeing them play a game called Prostitutes & Johns?

     Assume that in the latter game, all the sex is completely pretend, with absolutely no nudity or physical contact, just as in Cops & Robbers the violence consists solely on pointed fingers and shouts of "Bang!"

     (Thanks to Eve Kayden for jogging my memory with a similar thought experiment on a related issue.)

JOHN WALKER LINDH AND THE SECOND AMENDMENT -- two hot subjects in one National Review article, from the estimable Dave Kopel. Among other things, the piece further illustrates how during the Civil War, it was quite clear to everyone that the Second Amendment secured an individual right. (Thanks to InstaPundit for the link.)

From Sasha -- BACK IN MUNICH: Sorry I haven't given you any exciting and informative posts recently -- I popped off to Prague, for a friend's wedding, and back.

Before leaving Munich, I visited Dachau. It was mildly emotionally gripping, but not as much as, say, the Holocaust museum in Washington, D.C. It becomes more emotionally gripping if you decide, as I eventually did, to skip the audioguides entirely. It's much better than the L.A. Holocaust museum, but that really says more about the L.A. museum, which, as I recall, was too focused on a 'What can we learn about the Holocaust?' line, which quite naturally leads to silly commentary on U.S. race relations and possibly a subtle theme of 'Every conservative is a Nazi waiting to get out.'

Also, the Dachau exhibit (unlike the Holocaust museums) is not so fixated on the Jewish experience, which is a welcome change of emphasis. (Not that the emphasis on Jews is a bad thing, it's just that the Holocaust museums are telling the story as part of The Jewish Story and not as part of The History of World War II, and both perspectives are nice.)

Later, saw a movie, Im Toten Winkel: Hitlers Sekretärin (Blind Spot: Hitler's Secretary), which is the personal reminiscences, 50 years later, of Hitler's personal secretary, who also spent the last days with Hitler in the bunker. Kind of interesting, but not great like Bella Martha and Vaya con Dios, the movies I'd recommended before.

And on to Prague by night train, where I bought a Svejk key ring (pronounced 'shvake' to rhyme with 'bake') -- this guy is the national figure of the Czechs, a bumbling drinking soldier who never gets into a battle. Prague, like Salzburg, is a bit too tourist-oriented -- there are streets (as well as the famous Charles Bridge, not related to the mighty river Charles in Boston) filled with nothing but vendors of chachkes. In the Jewish quarter, for instance, you can buy not only marionettes of Svejk, Pinocchio, and Harry Potter, but also of an orthodox Jew with a fiddle. Just think how much fun it would be to play with a Jew! I would have gotten one, but I just don't need another Jew.

I almost saw Don Giovanni performed by marionettes -- the Czech marionette tradition is one of the best in Europe! -- but I missed that and instead saw Star Wars dubbed in Czech (Klony útocí). (There is some subtitling, but that's when the aliens speak Alien and are subtitled in Czech.) My friend Michael Scoville's wedding was lovely; my friends Garrett Moritz and Kelly Jaske from school showed up too, though it turned out that Kelly is against both marionettes and Marc Chagall (whose big stained glass in the Frau Münster I had brought up as one of the advantages of going to Zurich). Imagine!

And back to Munich (I had fun in Prague trying to teach the proper pronunciation of 'München' -- that 'ch' is nontrivial), where I had a good time at the Deutsches Museum, one of the best technology museums around. One of the famous Volokh family puzzles was illustrated at the Museum -- suppose you have a bunch of bricks of length 1 (as many as you like), and you want to make a leaning tower by stacking bricks on top of one another. How far out can you make the tower stretch? (Say the left end of the bottom brick is called 0, the right end of that brick is called 1, and you're trying to make the tower stretch as far out as you can toward the right.) No glue or external supports; all the bricks have to rest solidly, and only the first brick can be touching the ground. My father would appreciate that particular brick display, which was about bridge-building.

He also would have appreciated how, in Vaya con Dios, the German journalist lady, named Chiara, was played by the attractive Chiara Schoras. (It's been a long-time idea of my father's to have actors play characters with the same name, for efficiency reasons.) You wouldn't have seen her in anything, except maybe The Cat's Meow.

Also yesterday, had dinner with Darcy, a graduating law student from Alberta whom I met on the train from Prague, and her mom. Today, I got to participate in a survey on cordless phones. I told the lady I was a tourist from America, but she didn't mind, and took me into an office in this building where they gave me a glass of water and started asking me questions. But when the questioning guy found out, because I told him, that I was a tourist, he left the table, and then I heard some shouting along the lines of: 'We said, only people who live in southern or western Germany!' Then they let me go, but at least I got a chocolate bar out of the whole thing. Also, saw Star Wars: Angriff der Klonkrieger.

No news from Germany today, but the Frankfurter Allgemeine Zeitung does have a news item on arsenic poisoning of drinking water in Bangladesh. Arsenic is apparently odorless, colorless, and takes a long time to have any effect, so people keep drinking the water (it doesn't help that there sometimes aren't nearby alternative sources), but the effects aren't too pretty. The author says (note that I'm just taking the author's word on all the facts here, including the effects and extent of arsenic poisoning):
Back in the '70s, when the nation of Bangladesh emerged from the former East Pakistan after a bloody civil war, people got their drinking water mostly out of ponds and rivers. Cholera and other gastro-intestinal diseases were rife as a result of this water contaminated with bacteria.

With the best of intentions, Unicef, the children's aid organization, began to encourage the construction of hand pumps, to promote germ-free groundwater. Around 11 million of these pumps were sunk between 15 and 30 meters deep into the ground -- most of them privately financed. Presumably these measures saved the lives of hundreds of thousands, mostly children.

'But no one thought about arsenic,' says Colin Davis in the Unicef headquarters on the fifth floor of a high-rise in Dhaka. Davis's job is now to bring the evil spirits of that good deed back under control. No easy task: 'We have found 500 villages in which there is not a single clean source. We have to move quickly to solve the problem. Tell people that they should only drink water from clean wells. We have to build rainwater collection containers.'

This is an experienced development worker speaking who has spent too much time at the office. Because only in theory can the problem be solved simply and easily. . . .
And the article goes on to explain the behavioral barriers to a simple strategy (people don't like unfamiliar wells; they can't see the effects of arsenic immediately; red dots for bad wells and green dots for good wells don't work in some places because people don't have enough experience with traffic lights to know that red is bad and green is good).

What does this tell us? First, it illustrates the tendency of some in the public health community, and some in the development community (and some in the intersection of those two communities), to treat problems as though they were somewhat mechanical and ignoring the behavioral response of the actual people who will be affected.

Second, and more importantly, it illustrates a particular application of the law of unintended consequences -- the pervasiveness of eco-dilemmas. Everything has consequences, even efforts to solve health or environmental problems, so that the very concept of 'good' or 'bad' for 'the environment' may be at best difficult, at worst incoherent or not well defined. Try solving cholera; you may introduce some arsenic poisoning. (Incidentally, these are both naturally occurring.) Deroy Murdock wrote an excellent article about this; it appeared in National Minority Politics in October 1995; but I can't seem to find it on the Internet.

Not that this means you shouldn't do anything -- on the facts reported in this article, it seems pretty clear that it's better to have today's arsenic problem than yesterday's cholera problem (but then again, the article doesn't give enough information to say that for sure). All I draw from the article is that public health and development planners -- and any policymaker -- should have a sense of humility about the solutions they propose.

And on that note, it's off to bed, and to Paris in the early morning, where I will spend a week with the lovely Eve Kayden, who just arrived there this morning.

MORE ON TURKISH STAR WARS: Reader Onur Sarisaban writes:
As a Turk who has seen the "Turkish Star Wars" movie many times on TV, I can tell you that the review is accurate. The "Turkish Star Wars" (actual title: "The Man who Saved the World") has long been a symbol in Turkey of all that is wrong with the country (i.e. "A country that can produce this -- thing -- must be so insane that it has no chance of joining the Western civilization).

     What the reviewer doesn't mention (probably because he doesn't know) is that the producers also blew up one of the oldest prehistoric caves in the world with dynamite to make room for the set for the cave dweller scenes. Archeologists around the world were astonished. Turks were not.

Monday, May 27, 2002

RADIO: I'm scheduled be on KPCC-FM (89.3) in Los Angeles Tuesday morning from 9 am until probably 10 am talking about the Nuremberg Files case; the program should also probably be rebroadcast from 7 pm to 8 pm Tuesday evening. As always, subject to change without notice.

CAN CANADA COMPLY WITH KYOTO? Not likely if Alberta refuses to go along. The energy rich province is balking at Canada's potential ratification of the Kyoto Protocol on global warming. Alberta's defection might derail Canada's participation in the UN's energy suppression . . . er, sorry, "climate protection" regime. If so, the U.S. won't be alone in refusing to participate in this ill-considered scheme.

P.S. Watch our friends down under for more potential defections from Kyoto, and keep an eye out for stories on the sun's potential role in climate change. That scientific debate is heating up.

WHO ARE YOU TO SUE? That's a question that someone might want to ask the Environmental Protection Agency or the Tennessee Valley Authority, as these two federal agencies are suing each other. More precisely, the TVA sued the EPA to challenge its application of air pollution regulations which the EPA is seeking to enforce against the TVA and other users of coal. See a story on the oral argument here. Those who want to understand how a federal court has jurisdiction to hear a case in which one federal agency sues another should check out the 11th Circuit's opinion here (or look up the cite 278 F.3d 1184).

RACIAL PROFILING & SEPTEMBER 11: The Weekly Standard's Christopher Caldwell suggests another reason why the Administration -- or at least the FBI -- didn't connect the dots prior to September 11: FBI officials were afraid to engage in racial profiling. In a nutshell, FBI offiicals didn't investigate flight schools because checking out the thousands of aviation students would have required too much manpower (personpower?) -- apparently focusing on Arab flight students alone was not a viable option.

JUAN TO THE RESCUE: Just because Eugene isn't posting, doesn't mean the rest of us won't. I may post quite a bit today if the sun doesn't come out.

Sunday, May 26, 2002

WELL, MAYBE ONE TIME MORE: Jeff Jacoby has a good piece on the "Why didn't the Administration connect the dots before Sept. 11?" question, echoing (and citing) William Saletan's similar comments recently in Slate:
It is easy after the fact to ask why the dots weren't connected and precautions taken. After the fact we know exactly which dots to search for and what the final picture is going to look like. Before the fact, it isn't always clear that the dots are dots, let alone what pattern they fit or how credible they are.

OK, JUST THIS ONCE: Check out the review of the weird Turkish Star Wars ripoff. I don't know whether the review is accurate or not, but it's pretty funny nonetheless. A sample excerpt:
Long ago in a Turkish-speaking galaxy far, far away, the universe is being imperiled by a quartet of evildoers: two bush-haired men wearing Mardi Gras costumes, a slutty babe dressed as Cleopatra, and a blue robot with an ambulance light on his head. (I am not making this up . . . I could not possibly make this up!) Their fleet of spaceships go to war against the flying saucers of a heroic group of rebels, and for several minutes the screen is filled with F/X footage from a battered print of "Star Wars." There's no Luke Skywalker here, but instead we have two middle-aged space jockeys (Cuneyt Arkin and Ayetkin Akkaya) who are leading the rebel attack. Unfortunately, there was no budget for a spaceship set here, so the heroes are photographed in very tight close-ups while footage from "Star Wars" plays on a rear projection behind them.

NO MORE BLOGGING (PROBABLY) THIS WEEKEND: Will be back Tuesday. Have a great Memorial Day!

Saturday, May 25, 2002

HOW NOT TO PRESENT STATISTICS: I'm actually quite happy that many Americans are giving their race and ethnicity as simply "American," but one item in the Washington Post article about this slightly annoyed me:
Even in New York, where more than one-third of the population is foreign born, 238,000 New Yorkers simply declared themselves American, a rise of about 81,000 from the 1990 Census.
     That sounds like a lot -- 238,000. But is it? Depends a lot on how many New Yorkers there are. My very tentative guess is that it's about 7 million (I assume they mean New York City, incidentally, and not New York state, but I can only infer that from the "more than one-third of the population is foreign born" item), so 238,000 would be a bit over 3%. (UPDATE: Reader Paul Donnelly tells me the relevant number is likely 7.8M; and that New York City grew about 10% from 1990, which means the percentage rose from about 2.2% to about 3%.) But I might be quite wrong, and I'm pretty knowledgeable about such matters -- most people would probably have even less of a sense, I suspect.

     Now perhaps the raw number is also useful; that hundreds of thousands of people are taking some view is itself a useful data point, even in a city of many million. But the percentage is usually more useful. Maybe it's good to have both, but if you have only one number, it's much more informative to use the percentage -- and leading newspapers that have some aspiration to helping people think through policy questions should make that a policy.

THE SUPPOSED DANGERS OF COGNITIVE THERAPIES: The usually sensible Economist has an article titled "The ethics of brain science"; the little introductory blurb says:
Genetics may yet threaten privacy, kill autonomy, make society homogeneous and gut the concept of human nature. But neuroscience could do all of these things first.
     I don't buy the complaints, for much the same reason that I don't buy complaints about parents trying to influence the genetic makeup of their children; I think there are some possible problems, but I think that they're mostly vastly overstated, and vastly outweighed by the potential benefits. But I could be wrong, and the issues that the article describes are certainly quite intriguing. Read it and judge for yourself.

WHY DON'T MORE FATHERS WANT THEIR DAUGHTERS TO BE LESBIANS? I'm actually 30% (well, 28.73%) serious here. I'm not a father, but if I were one (and I hope to be one some day), and had a daughter, the prospect of having my little darling having sex with some guy would just give me the creeps, even when she's indubitably old enough.

     (Warning: This post is considerably, er, different from the usual ones. While I've tried not to make it unduly vulgar, this ain't the usual calm discussion on public policy. Now, back to our regularly scheduled programming.)

     First, I'm a guy, so I know that many guys, especially in their late teens and twenties, basically want women primarily for sex. That's not true of all guys, and certain not of all relationships for all guys; and I'm not saying that this is even necessarily wrong. But it tends to be different from what women want (a generalization, I realize, but a generally accurate one), and the result is many women feeling used and hurt.

     In the abstract, that's just life in the big bad city (setting aside for now the possibility of the men using violence or deception). But the very idea of that happening to my little girl really bothers me -- not just because she'll be emotionally hurt, but because she'll be some sex object being used by some dirty nasty man -- and I don't even have a little girl yet! I can't claim to be an expert on lesbian relationships, but my sense is that because there are two women involved, such relationships tend to (again, I stress "tend to") be somewhat more emotional and romantic (and, or so rumor has it, on average somewhat longer-lasting) as well as physically sexual.

     Second, while I'm being blunt, let me get blunter: Penetration. Yup, it feels just great for us when we (guys) do it, but it gives us (i.e., "it gives me, and I will just assume that I can speak for my entire gender") the willies to even contemplate it happening to us -- or to my hypothetical daughter. Some guy sticking his prick into my little sweetheart? Awful, just awful.

     Compared to that, lesbian sex seems much less repulsive, much less of an indignity. Yes, I know that penetration goes on there too; but penetration with fingers or objects just somehow lacks the indignity of penetration with genetalia. My daughter with a woman vs. my daughter with a man -- there's just no contest; it's perfectly clear which one I'd prefer.

     Third, the practical: pregnancy and sexually transmitted diseases (to my knowledge, lesbian sex is less likely to transmit STDs). Which would trouble you less as a practical matter -- your 16-year-old, or even your 18-year-old, being out half the night having wild sex with a boy, or with a girl? In terms of raw physical risk, you've got to prefer the girl.

     This is of course not a claim about how people should behave -- the feelings I describe above are mostly nonrational. Rather, it's a question about why people don't behave this way more often. Maybe I'm just weird, but if I'm not, why don't we hear about guys saying "Gee, I'd much rather my daughter was a lesbian"?

     Now of course some people have moral or visceral objections to lesbianism; they wouldn't take this view, and I understand that. But many, like me, have no such objections. Other people may feel very strongly about wanting grandkids -- but many lesbians do have children, and in any event many men have both sons and daughters, so the sons can impregnate some woman. Still others might just feel that, though they don't mind lesbianism, others do, and that therefore their daughter will just have a harder life as a lesbian; I suppose that's a significant factor, but viscerally to me the other three I mention above just drown this out.

     I realize that for most women, lesbianism just wouldn't be a choice, just like I don't think I'd choose homosexuality even if there were good practical reasons for it. As I understand it, there are quite a few women who are primarily lesbians for some time in their late teens and twenties and then generally return to heterosexuality (which has its plusses from the father's perspective, too, given the arguments I mention above); still, I imagine that most women just aren't interested. But again my question isn't about whether a desire to see one's daughter become lesbian is likely to be satisfied; men desire all sorts of things that they're unlikely to get. Rather, it's about why we don't see more of this desire.

     Finally, I'll stress again that this question is in part facetious: I'm pretty sure fathers don't actually devoutly wish for their daughters to be lesbians, and I'm asking this mostly because it's amusing and a bit absurdist to wonder why it isn't this way. But it does have a serious component: Given fathers' notorious sexual protectiveness of their daughters, why don't we see more of the attitude I describe?

TEEN SEX: Look, when others are getting zillions of search engine hits by talking about Teen Sex, how can I resist?

     There's a lot of reason for skepticism about many aspects of Anti-Teen-Sex campaigns. Among other things, laws in some states that outlaw all sex among kids under age 18 -- and not just sex between, say, 14-to-18-year-olds and considerably older adults -- seem to me quite troublesome. Any criminal law that's so vastly underenforced is likely to be enforced quite selectively (and often improperly so) when it is indeed enforced; it's likely to breed at least some disrespect for the law; and it's also just plain unfair to put millions of decent kids, kids whose behavior society in fact largely, condones at risk of felony prosecution.

     What's more, it's worth noting that some places -- such as Canada, where the age of consent is 14, and many European countries -- seem to survive quite well with a fairly low age of consent; in many states of the union, the age of consent is 16; and in Hawaii, the age is 14. This makes it hard to see why having sex with a 17-year-olds really should be treated as an appalling sex crime. (Obligatory disclaimer: I've never had sex with anyone under 18, and since my own majority, haven't even wanted to. Believe it or not, as you'd like.)

     The Web site has a pretty thorough, and based on my quite limited checking, generally reliable, summary of age of consent law throughout the U.S. and the world. I suspect the site's aficionados aren't primarily focused on public policy scholarship, but it seems like a good resource for those purposes as well as, er, others. (Obligatory disclaimer: I found the site while doing research for the Teacher's Manual's entry for a problem in my textbook [p. 76].)

     Nonetheless, some of the rules here aren't as silly as they appear. For instance, I don't think I'd say that it's a "contradiction" (as observed by Instapundit, based on an argument made by Robert George in The Corner) for us to "insist that teenagers be treated as children when it comes to sex, but as adults when it comes to murder." (One of the proposed amendments that I got, from Philippe Richards, made a similar point in proposing a ban on age discrimination among over-18-year-olds: "They can vote, they can drive a car, they can die (first, no less), but they can't drink legally?" Yes, I'll get back to the amendments again soon, but at least this post can make a tiny dent in the backlog.)

     The age of majority is not some metaphysical point, deducible from first principles, when people become responsible for their actions, with all the benefits and burdens that this entails. Rather, it's a judgment that's based on (1) people's average level of responsibility at a particular age, (2) young people's relative need to be able to engage in a certain kind of conduct, (3) the harm to society from irresponsible exercises of that conduct, and (4) the felt moral need to treat certain kinds of conduct in certain ways even when it's engaged in by young people.

     The drinking age, for instance, is higher than the driving age not so much because you need more maturity to drink responsibly than to drive responsibly, but because depriving 16-to-21-year-olds of the ability to legally drink in bars is less burdensome to them than depriving them of the ability to legally drive (which would dramatically interfere with their employment and their education). Maybe the ages are miscalibrated, but the difference in the ages doesn't itself prove this.

     The same goes for the age at which a person can be tried as an adult for murder and the age at which he can lawfully have sex. Many voters feel, in my view for good reasons, that most teenagers who commit murder have committed a morally heinous act (in a way different from, say, a 7-year-old who kills someone, though we may also be shocked and appalled by that). They knew what they were doing, they should have known that it was wrong, and they should be held culpable for it. Some people defend this on deterrence grounds, but I think the main reason for it is a sense that justice demands that these murderers be firmly punished.

     This moral imperative to treat, say, a 16-year-old the same as an 18-year-old does not, in most people's view, arise with sex. It might arise for those who believe that it's deeply morally wrong to deny 16-year-olds the ability to have sex, even for a couple of years, but the majority of people (even those who think that adults have a basic right to have sex) probably doesn't take this view. And the perceived harms of treating 16-year-olds the same as 18-year-olds -- especially greater risk of pregnancy and sexually transmitted diseases, given that 16-year-olds are probably even less responsible sexually than most people are -- seem to many to be quite great. So it makes sense to them to draw the line in one place for sex, in another for driving, in another for drinking, and in another for criminal prosecution.

     Again, there are lots of good arguments for a lower age of consent, or for that matter for a higher age threshold for treating criminals as adults. (I'm not an expert on the latter point, and while I viscerally support generally treating 14-to-18-year-olds as adults for purposes of prosecutions for muder and other serious crimes, I realize that I may well be mistaken. And I suspect that if the juvenile justice system wasn't seen by many as such a revolving door, the campaign to treat these teenagers as adults probably wouldn't have gotten anywhere near as far as it has.)

     But I don't think these arguments are much advanced simply by noting that the age thresholds are different, and pronouncing that a contradiction or even, in Robert George's words, an "interesting tension." (Literally, it might be an interesting tension, in the sense of a difference that should arouse our interest in figuring out whether the difference is justified; but in my experience "interesting tension" is generally a mild-mannered way of suggesting at least a minor contradiction, which I think is how Glenn Reynolds took it.)

     Human maturation is a gradual process, a continuum rather than a sharp change. And while the law must generally draw bright lines in this area, it makes sense for the lines to be drawn on different places on the continuum, depending on the regulated activity's specific harms and benefits.

Friday, May 24, 2002

PRISONERS AND THE RIGHT TO HAVE CHILDREN: The U.S. Court of Appeals for the Ninth Circuit has just held (by a 6-5 vote) that a prisoner serving a life term did not have the right to ship his sperm to his wife so that they could have a child. (Courtesy of Instapundit and AppellateBlog.)

     When I first heard about the original three-judge panel decision that held the contrary, I thought the prisoner's argument was patently silly (I have little patience for most prisoners' rights claims), but the panel decision persuaded me. I look forward to reading the new opinion, which reverses the panel, and seeing if I'll be persuaded back. Not likely, though -- my former boss Judge Kozinski, with whose views I generally agree, was in the dissent, voting for the prisoner.

     Note that the prisoner is not claiming a right to conjugal visits -- only a right to ship his sperm out of the prison.

UPDATE: Read the opinion, and it didn't change my mind -- odd as it may seem, I think the prisoner should have won (though, as Judge Kozinski's dissent points out, perhaps the result should have been different if the legislature had explicitly decided that loss of the right to procreate should be part of the intended punishment for the offense). And as I expected, I agree with the Kozinski dissent entirely.

AND ONE MORE: "My PID is Inigo Montoya. You killed my parent process. Prepare to vi."

     The "vi" part is less amusing than it could be ("vi" is a UNIX-based editor, which I used to use back in the mid-1980s), unless I'm missing something. But it's still pretty funny.

ANOTHER BUMPER STICKER SEEN BY MY DAD: "Do not meddle in the affairs of dragons. For you are crunchy and taste good with ketchup."

     Applies (or so I hope) to some important recent events.

RACISM ET AL.: My former student Mike Lopez has a new blog (higheredintel) focused mostly on higher education issues; definitely worth checking out. Here's a line I particularly like:
The University of South Carolina has a Women's Studies class that has the following 'Guidelines For Classroom Discussion." Thanks to TheFire for the link. Let's take them one at a time.

1. Acknowledge that racism, classism, sexism, heterosexism, and other institutionalized forms of oppression exist.

Well, yes, but not always perpetrated by the people you'd think . . . .

PLAGIARISM: Jeff Cooper, a fellow law professor, has an excellent post on plagiarism. Among other things, he points out that some students think that it's OK to paraphrase scholarly work nearly exactly, so long as they provide a citation.

     I agree entirely that this is bad behavior when citing academic work. The trouble is that when one is citing cases, especially in practical legal writing, this is perfectly fine. "Law," someone once said, "is the only field where 'that's an original idea' is a pejorative." When you're writing a brief, you're supposed to rely closely on the authorities, and while sometimes you quote them, sometimes -- either for stylistic reasons (to keep the text from being wall-to-wall quotes) or, more likely, because you need to adapt the reasoning to your case -- you do exactly what Jeff Cooper's student did: Paraphrase the text very closely and provide a cite. No-one would think you're doing anything wrong.

     Practical writing that paraphrases judicial decisions is of course different from academic writing that paraphrases other academics' work. (How one treats practical writing that paraphrases academic work and academic writing that paraphrases judicial decisions might actually pose tougher questions.) Most significantly, academic work is graded on originality (either officially by professors or informally by readers), so one must be scrupulous about acknowledging which material is unoriginal. So Prof. Cooper was right to be alarmed by the student's actions. But I think the propriety of paraphrasing in a closely related area highlights the importance of reminding students -- especially law students -- that academic work is governed by different rules.

     Incidentally, the blog post shows one passage from the student's paper and the corresponding, almost identical, passage from the source; and then suggests how the student could have rewritten the passage to avoid the problem. Curiously, the rewritten passage is much shorter and more readable -- and thus independently better -- than the original.

MORE ON RELIGION AND POLITICS: Chris Bertram, on Junius, disagrees with my post on why religious people are as entitled as secular people to enact their morality into law. He agrees "that religious people have moral views like everyone else, that it's ok for everyone to seek to enact their moral views into law and that to disbar the religious from doing so is to treat them as second class citizens." But he reasons that
What I do think is objectionable is for believers or unbelievers to pursue agendas on these issues in ways that don’t appeal and couldn’t appeal to the shared reason of their fellow citizens. The public power belongs to everyone and when majorities hijack it for sectarian purposes they act oppressively. Many religious believers can advance arguments in the public sphere in terms that respect their fellow citizens. For example, the natural law tradition grounds morality both on God’s command and on human reason, so Catholics could if they chose to advance arguments in ways that non-believers might plausibly accept. If they do so, that’s fine. But religious believers who seek to legislate and give as their supporting grounds Holy Scripture or the command of a religious authority (a fatwa, say) that they know perfectly well others don’t recognise, are acting in a tyrannical manner. When they succeed, it is the non-sharers of their beliefs who are turned into second-class citizens.
     I've heard this argument before, and I just don't buy it. People have different worldviews, and sometimes the arguments of one worldview (whether Catholic, Marxist, deconstructionist, objectivist, Kantian, animal-rights-based, or what have you) just don't make sense to another. There's nothing "disrespectful" of one's fellow citizens to rely on such arguments. In fact, it's inevitable, given that no argument one makes "could[] appeal to" everyone.

     Aha, the usual response goes, but at least people who don't share Marxist / libertarian / animal rights views theoretically could accept arguments based on those views, because the views are based "on human reason." People who don't share certain theological views, on the other hand, just cannot accept arguments based on those views, because those theological views are based only "on religious authority."

     But that doesn't make much sense to me. Everyone could, if they became persuaded, accept either the axioms of some secular school of thought or of some religious school of thought. But of course not everyone does accept those axioms. We can no more expect someone who devoutly believes that all morality comes from God to accept, say, objectivist or Marxist thinking than we can expect someone who devoutly believes that all morality comes from human reason to accept Baptist or Muslim thinking.

     Would we endorse the argument that "[secular thinkers] who seek to legislate and give as their supporting grounds [a view of morality based on secular reason] that they know perfectly well others [devout Muslims or orthodox Jews] don’t recognise, are acting in a tyrannical manner"? I don't think so. Neither should we accept the argument that "religious believers who seek to legislate and give as their supporting grounds Holy Scripture or the command of a religious authority . . . that they know perfectly well others don’t recognise, are acting in a tyrannical manner." If we did accept the latter but not the former, we would be treating religious believers as second-class citizens as compared to secular believers.

     We cannot demand that religious believers leave their deepest beliefs unspoken, while secular believers remain free to speak their own deepest beliefs. Sometimes it is pragmatically better for people to speak in terms that appeal to a broader audience (though such arguments often get breadth of support at the expense of depth). But morally, people are perfectly entitled to use those arguments that resonate most with their own views. There's nothing inherently "disrespectful," "tyrannical," or "oppressive" about making decisions based on your own worldview, and urging others who share it to do the same.

     Of course the outcome of the decisionmaking process may in our view be tyrannical or oppressive, if the process reaches results that seem to us to be sufficiently evil. But it's the results that are oppressive, whether they come from a religious or secular process -- not the religiosity or secularity of the arguments that are being made.

Thursday, May 23, 2002

BUSHISMS OF THE DAY: I'd like to get my hands on transcripts of talks that Jacob Weisberg gives. Who knows, maybe he's one of those people who speaks perfectly, in entire paragraphs of correct prose. If that's so, he'd be one up on most people, as anyone who's read transcripts of panel discussions, depositions, or a variety of other presentations knows.

     So here's today's "Bushism of the Day", part of a series that Weisberg has been collecting: "This is a nation that loves our freedom, loves our country," something Bush said in a May 17 speech. Ha ha ha -- how inarticulate! A nation that loves our country; what a silly redundancy.

     Except that it's pretty clear what Bush meant, and it wasn't at all redundant: We are a nation of people who love our freedom and love our country. (The entire paragraph, which I got from a Federal News Service transcript, is "They found out we think differently here in America. We think differently because this is a nation that loves our freedom, loves our country. And this is a nation that has got citizens who are willing to sacrifice for a cause greater than themselves.")

     Did he misspeak? Sure. About the same way that I suspect you and I misspeak dozens of time each day. Did listeners understand what he meant? I'd bet that they did, and that most didn't even really notice the error -- the meaning, while hardly profound, was clear. Does this sort of error tell us much of interest about anything? Your call.

COOL CATS: According to an ad I saw while reading Slate -- an ad for one of Slate's columns, actually -- "William F. Buckley calls Slate's Today's Papers 'Cool cats, having a great time, and doing as much for the reader.'" Cool cats? Really? Or is this supposed to be a bit of self-mockery about Buckley's age, and I'm just missing the gag?

"GUN CONTROL & GUN RIGHTS": I just got my copy of "Gun Control & Gun Rights: a reader & guide", by Andrew McClurg, David Kopel, and Brannon Denning (NYU Press). It's thorough (covering criminological, constitutional, and moral questions), but more importantly it's balanced: McClurg is a leading pro-control commentator, while Kopel and Denning are leading gun control skeptics.

     The text is aimed at university courses (both undergraduate and graduate), but many people who are personally interested in gun issues may find it helpful, too; and it's only $19 at Barnes & Noble! I highly recommend it.

CLASS AT PUBLIC UNIVERSITY "LIMITED TO NATIVE AMERICAN STUDENTS": According to TheFIRE (a public interest organization aimed at fighting speech restrictions and race preferences at colleges and universities), an Arizona State University class on Navajo history was listed in the course catalog as "limited to Native American students." TheFIRE has gotten ASU to drop the restriction.

     My only source for this is a press release from TheFIRE, but I've generally found them to be quite trustworthy, and the copy of the letter from ASU (apparently entered by them rather than photographed from the original, but I have confidence in their veracity) bears their story out.

RELIGION AND POLITICS: Over tea last Friday, a perennial argument came up: Isn't it illegitimate for the government to ban cloning, when most of the arguments against cloning are essentially religious? Isn't that an unconstitutional violation of the separation of church and state, or at least a violation of some democratic norm that people ought not force their religious views on others? The same argument has been raised with regard to abortion restrictions, bans on homosexual conduct, and a variety of other prohibitions.

     I think the answer is no. I oppose many cloning bans, but I do so because I think they are wrong on the merits -- not because people support them for religious reasons.

     My reason is simple: Most of the coercive laws that we hotly debate involve the forcing of a majority's views on the minority. That's true of laws protecting endangered species, antislavery laws, antidiscrimination laws, intellectual property laws -- or for that matter bans on infanticide, child sexual abuse, or more generally murder, rape, or theft. Some of these laws may be sound on the merits, and others unsound. But the fact that they force one group's views on another doesn't make them wrong.

     Religious people have moral views just like secular people do, and they're just as entitled as secular people to use the political process to enact their views into law. True, religious people's moral views may rest on unproven and probably unprovable metaphysical assumptions -- but the same is generally true as to secular people's moral views.

     To say that religious arguments must be excluded from public debate, while equally unprovable secular moral arguments may continue to be made, would be to turn into second-class citizens those people whose basic moral views come from their religion. Neither the Constitution nor sound political morality require this.

     In fact, many important political movements -- the antislavery movement, the civil rights movement, and various antiwar movements -- were composed in large part of religious people who acted for explicitly religious reasons, and justified their positions using explicitly religious arguments. Would we say that opposition to slavery was illegitimate because it was mostly overtly religious? If not, then we also can't condemn opposition to cloning or abortion on these grounds.

     But what about the Establishment Clause? Well, the Supreme Court has explicitly held that the Establishment Clause doesn't invalidate laws simply because their supporters backed them for religious reasons. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Harris v. McRae, 448 U.S 297, 319-20 (1980). And for the reasons I mention above, the Court's decisions here were correct. True, the First Amendment does bar the government from teaching religion, from requiring religious practices such as prayer, and (generally) from singling out conduct for better or worse treatment because it's religiously motivated (e.g., punishing religious animal sacrifices but not secularly motivated animal killing, or giving a sales tax exemption to religious publications but not secular ones). But it doesn't bar the government from implementing religiously-motivated prohibitions on people's conduct, whether as to murder, theft, slavery, civil rights, cloning, or abortion.

     I stress again: There are lots of good arguments to oppose cloning bans, abortion bans, or bans on homosexual conduct. The supporters of such prohibitions may be wrong on moral or pragmatic grounds. But the bans aren't made invalid by the fact that many of their supporters act for religiously influenced moral reasons, as opposed to secularly influenced moral reasons.

HOW CONGRESSMEN EXERCISE SCHOOL CHOICE: The Heritage Foundation has a great update of their piece on many Congressional school choice opponents sending their kids to private schools:
[M]any Members of Congress effectively deny poor school children the educational opportunities their own children enjoy. Of the high percentage of Members who now send or at any time have sent a child to private school, many continually vote against legislation that would enable parents of poor children trapped in failing or unsafe public schools to exercise the same choice. Many, such as Senator Hillary Clinton (D-NY), whose daughter Chelsea had attended an elite secondary private school in Washington, D.C., argue that giving vouchers to disadvantaged children to attend a school of choice would undermine public schools. Two of the Senate's wealthiest members, Edward M. Kennedy (D-MA) and John D. Rockefeller (D-WV), voted against school choice but provided their own children with a private education. Such rhetoric is common on Capitol Hill.

BOOK: I was happy to learn yesterday that Foundation Press accepted my proposal for a short soft-cover book on advanced legal writing, chiefly focusing on student-written law review articles and seminar papers.

     The book will be based on my "Writing a Student Article" article, but I'd like to add some more material. At the very least I'd have to add some special stuff on seminar papers, but I'd also like to add some tips on how to soundly rely on historical and social science sources (I might even give some negative examples from Michael Bellesiles' "Arming America"); and, more broadly, I'd like to add whatever else students might find handy.

     If any of you -- whether legal academics, academics in other fields, lawyers, professional writers, or others -- have some tips for me on this, I'd love to hear them (and exploit them!). Please e-mail them to me at volokh at

IAIN MURRAY ON STATISTICS: Another fine piece by Iain Murray on statistics in the news -- specifically (1) watching TV supposedly leading to violence, (2) kids being hit by falling TVs ("watching Jaws on TV is more dangerous than swimming in the Pacific"!), and (3) a fishy claim of increased workplace death risk among Hispanics. Much worth reading.

Wednesday, May 22, 2002

WOW: I just looked again at Howard Bashman's AppellateBlog (a k a How Appealing), "The Web's first blog devoted to appellate litigation" -- great slogan if you want just lawyers to read you, not so hot otherwise -- and was very impressed. (I'd seen it before, but must have just skimmed it too quickly to really appreciate its full quality.)

     It's thoroughly substantive and thoughtful, yet well-written. And because it covers a lot of interesting and newsy court decisions, from the Supreme Court on down, I suspect it will be quite interesting and accessible to policy-minded lay readers as well as to lawyers. Good stuff.

WHAT THE NUREMBERG FILES CASE ISN'T ABOUT: Dahlia Lithwick has a generally very thoughtful and interesting Slate piece about the Nuremberg Files case. I think she misses the mark, though, in arguing "Why should you be able to hand a potential killer someone's address and get away with it?"

     Whether the law may punish speech on the grounds that it conveys information which facilitates crime by others is an important and unanswered question in First Amendment jurisprudence. It has come up in a few lower-court cases (chiefly Rice v. Paladin Press a few years ago, which involved a purported instruction guide for contract killer), and has also arisen as to the statute banning publication of bomb-making information (18 U.S.C. § 842(p)). Even this sort of crime-facilitating speech may be protected; but at least there's a special argument for why it should be punishable where merely menacing speech or crime-advocating speech cannot be. I have been trying, without much success, to write an academic article about this subject for the last couple of years.

     But this case was not litigated on this theory. The jury wasn't instructed to find liability on the grounds that defendants' speech facilitated crime by others. (See note 7 in the original panel decision and note 10 in the dissent from the most recent decision.) The jury's decision may very easily have rested entirely on the menacing quality of speech that did nothing to reveal people's addresses and the like. And the precedent set by the Ninth Circuit in affirming the jury's decision therefore is by no means limited to the situation that Lithwick describes.

     Now Lithwick makes other arguments that suggest that maybe First Amendment law should be changed to allow punishment of menacing speech even more broadly. They have considerable force to them, though they would require the Supreme Court to reverse its decision in NAACP v. Claiborne Hardware (1982) .

     But some people have focused instead (as Lithwick in some measure does) on the Nuremberg Files revealing information that might help facilitate crime ("Why should you be able to hand a potential killer someone's address and get away with it?") -- perhaps because such a focus would require one to defend a much narrower restriction on speech, one would still leave speakers rather free to engage in harsh political rhetoric, even against a backdrop of violence by others. And if that's so, then the solution is not to affirm the jury verdict, as the Ninth Circuit did. Rather, it's to reverse the jury verdict and have the case be retried under the limited crime-facilitating-speech theory, and not the much broader menacing-speech theory.

GENTLE NITTY-GRITTY: My brother Sasha, who knows much more about language than I do, points out that if one really wants to stop using words with offensive etymology, one should also "stop using the word 'gentle,' which . . . perpetuates the aristocratic class structure." (The term derives from the Old French "gentil," which means "high-born," as in "gentleman.")

From Sasha, MAMMAL OF THE YEAR: First, let it be said that I hate hay fever.
I hate hay fever.
There. Second, as I always say, better smoke than insects.

Third, another wonderful movie. Maybe this is selection bias -- most of the movies here are American, so if something German's going to be in the regular theaters, it had better be good, and I'm only watching German movies. (Well, except I did see And Quiet Flows the Don (USSR, 1957) yesterday, though dubbed in German.) So this other one is called Vaya con Dios (despite its name, German, and the phrase doesn't appear in the movie), a road movie about monks, in various ways reminiscent of this (also good) Spanish movie I saw some years ago, Suspiros de España (y Portugal). It features chase scenes, a secret book, an evil Jesuit, and the redeeming power of a cappella, something of The Name of the Rose meets Star Wars meets, um, Flashdance? Well, no, not quite. . . . Anyway, out of the three good German movies I've seen so far (Die Scheinheiligen, Bella Martha, and Vaya con Dios), surely they'll release at least one in the U.S. some day?

D, two fun museums. The German Hunting and Fishing Museum, with a huge bronze boar sitting outside. They've got stuffed beasts, stuffed birds, stuffed fish, and a huge historic rifle collection. Also they reveal that this one otter was Mammal of the Year for 1999. Plus, they have this stuffed petting zoo -- you know, these mammals are so furry and cute and adorable, and a good thing they're both stuffed and behind glass so they don't bite my hand off . . . and tackle me to the ground . . . and rip my throat out . . . and God only knows what else. There was also a nice Bavarian man who worked there who -- when I told him I'd been hunting, fishing, and shooting -- explained to me all about this one air rifle the Austrians used to fight Napoleon, and about a huge 500-pound prehistoric stag, and about how that building used to be an abbey before it was nationalized in the early 19th century.

Next, the Center for Unusual Museums, which has the world's largest collection (Guinness certified) of Easter bunnies, toy pedal cars, guardian angel paraphernalia, chamberpots (including special ones for women called Bourdalous, yes I know, what a stupid name for women). Also they've got a Sissi museum, which is all stuff about or owned by this assassinated late-19th-century Austrian empress called Elizabeth, apparently the Princess Di of her age.

And fifth, the news for today. Heirbert Prantl writes in, what else, the Süddeutsche Zeitung (just in case you're wondering, this means the South German Times):
The Great Amazement -- on the return of the fundamental in politics

The Pentecost miracle of social democracy already began in the week before Pentecost: a new spirit descended on the federal chancellor -- and the SPD [Social-democratic Party of Germany] president [same guy] suddenly began to speak a tongue that has so far been foreign to him: Gerhard Schröder spoke about justice and a fair social order, which should be protected even in the age of globalization. . . .

He spoke in such a way that mid- and low-level functionaries, baffled, rubbed their eyes and asked themselves: Isn't this the man who wanted to teach us in the last four years to no longer say 'Justice' but 'Innovation'? . . . Isn't this the man who made us nervous because he acted like a pink neoliberal [that's German for 'Newt clone with a human face']? The same who forbade us the old social-democratic songs? And now he's singing them himself, only slightly altered for a globalization setting! . . .

Maybe at the last moment the chancellor realized that his electoral campaign machine was running on empty -- and that he could be at fault because he forgot the main advice of his old rival [Oskar] Lafontaine: Only he who is himself inspired can inspire others. For four years Schröder spent far too little time and energy inspiring his party. On the contrary. He ran the trusty thing down, and turned his economic and social program into a social-democratic self-reproach for all the prejudices which conservatives and libertarians could have mobilized against social-democratic policies in the last twenty years. . . .

The heartless phrase of the social net as a 'trampoline' or 'springboard' entered into the highest social-democratic vocabulary and it spoke less of the new ideas of the SPD than of its new feelinglessness, since both terms apply to healthy and efficient people. And so not only did the SPD gain no new trust, it gambled away the old one. Consequently it lost that capital with which it could still grow in the last federal legislative elections: its social competence.
The article goes on to explain how, with this new 'social justice' program, the SPD is going to fight the FDP (the apparently libertarian-leaning party which is still in favor of tax cuts and the like and which got 18% in the recent elections); and how the right isn't fighting back because the FDP head is only into political marketing (and has to deal with anti-Semites in his party) and because conservative candidate Edmund Stoiber thinks vision ('the vision thing'?) is something 'only leftists' need.

Again, everything old is new again. The party that campaigns with ideas and inspiration tends to have the upper hand over the party that relies on mere competence. But campaigning with ideas is a dangerous proposition for the Left, since they got elected (in the U.S., in the U.K., and in Germany) partly by jettisoning the old Left and all their baggage. It's a beautiful and strong strategy for them, since my belief (and maybe I'll explain this in greater detail later) is that mainstream economics, translated into politics, leads most naturally to a moderate left (i.e., Clintonite) agenda. The business community and the middle class can eat that stuff up.

But the Left stays vulnerable to the extent they feel they have to retain their core. Which opens up a beautiful opportunity for the Right to campaign on their own inspiring ideas. Provided they believe in them.

DEFEATISM OR REALISM: I'm not sure I agree with Mark Horowitz's mocking FBI Director Mueller for saying "There will be another terrorist attack. We will not be able to stop it. It's something we all live with." Instapundit calls Mueller's statement defeatist, but that's not how I interpreted it -- nor do I think that the District Attorneys in the audience for Mueller's talk, not a defeatist bunch, would interpret it this way.

     Mueller's point, which is a good one, is that the public should not expect a war with no more casualties, or even a war with no more casualties on U.S. soil. Such zero-damage expectations themselves risk creating a feeling of defeatism when the expectations understandably fail to come true. Rather, people should realize that more civilians will indeed die (just as they're dying in Israel, despite the efforts of the Israeli government), and that while of course we should try to prevent such deaths, we shouldn't let these inevitable losses dispirit us.

     The better analogy, I think, isn't to Vince Lombardi saying to his players "Boys, we're gonna get beat and beat bad, and there's not a damn thing we can do about it" (Horowitz's example, as quoted by Instapundit), but to him saying "Boys, this is a tough team and they're going to score on us; but you can't let their occasional successes break your spriit." I don't know if it's the sort of thing Lombardi would have said, but if he had said it, I'd think it quite sensible.

UPDATE: Reader Damon Haas sends, in support of the point above, another Lombardi quote: "It's not whether you get knocked down. It's whether you get up." I think Mueller was telling us to accept that we'll be knocked down, so that we can focus on gathering the will to get up, and to keep fighting. (Of course, it would help if Mueller was trying to make sure we get knocked down less often, but I hope that should go without saying.)

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