The Right Coast

February 29, 2004
Abortion Politics
By Gail Heriot

As usual, I'm a bit baffled by the hard-core abortion lobby. It's not enough to have the courts declare that a pregnant woman has a constitutional right to choose abortion. They also apparently want the courts to declare that thugs have a constitutional right to choose abortion for her. (See Weekly Standard.)

This issue has been around for a while. I remember a case before the Illinois Supreme Court back in 1980 on the subject (People v. Greer, 79 Ill. 2d 103 (1980)). The issue has reared its head in connection with the lurid Scott Peterson murder trial. Peterson stands accused of double murder: his wife Laci and their unborn child Conner. Unlike Illinois law back in 1980, California law explicitly defines murder to include both. The abortion lobby evidently regards this as a travesty. In view of the pro-abortionists (and yes, in this context I think it would be inappropriate to call them pro-choice), any act of the state that suggests that a fetus might have some value is inconsistent with the right to abortion.

But there is no inconsistency. Both pro- and anti-abortionists ought to be able to agree to treat the intentional killing of an unborn child by someone other than the mother and without the mother’s consent as the serious crime it is. Would anyone seriously dispute that a thug who punches Laci Peterson in the abdomen with the avowed intent of causing her to miscarry is guilty of a wrong that is considerably more diabolical than a simple battery against the mother? Why shouldn’t the California Legislature protect the child and his mother (who was exercised her constitutional right to choose by choosing life for her child) with the strongest of penalties? Shouldn't the California Legislature have the authority to punish any number of serious crimes with penalties as serious as those for murder? There was a time, of course, when all felonies were punished with equal ferocity–the death penalty.

I wonder what the abortion lobby would have to say if the courts were to declare that we all have a constitutional right to suicide? Would that mean that the murder laws would have to go? If that’s a non-sequitur, isn’t the argument as applied to fetuses a non-sequitur too?

Coming to a high school near you
By Tom Smith

High school just isn't what it used to be. (via

Yet more Passion passion
By Tom Smith

Having looked at the criteria in the NCCB guidelines concerning depictions of the Passion and thinking about the Gibson movie, for what it is worth, I'm not sure the movie would get a passing grade. For example, the guidelines suggest or instruct that historical depictions should capture the fact (assuming it was a fact) that the secrecy of Jesus's trial was motivated precisely because of Jesus's popularity in Jerusalem, which hardly comes over in the film. Also, a point I had not thought about, the Nicene Creed explicitly assigns legal responsibility or something like it for the crucifixion to Pilate. It does not say "suffered under the Jews." The movie, as many have noted, goes rather easy on Pilate. It would have been easy enough to make these changes by making the Jewish mob smaller, emphasizing the secrecy of the trial, showing more popular outrage at the result of the trial, and so on. There would have been other reasons for religious Jews to object to this, but it would have made the movie closer to the Catholic version of events. But Mel Gibson is not the usual Catholic, but a member of a schismatic, ultra-traditionalist sect. Non-Catholics need to realize that given that the Church has room for Jesuits on the left and Opus Dei on the right, to feel you have to in effect leave the Church because it is not traditionalist for you, does make you pretty darn extreme.

A Better Way to Judge the Passion
By Mike Rappaport

Extremely interesting post assessing The Passion based on previously established guidelines by the National Conference of Catholic Bishops and Anti-Defamation League for avoiding anti-Jewish interpretations of the passion story. (Hat tip: Curmudgeonly Clerk) This seems like a powerful way to avoid the controversy of the moment and to fairly assess the movie. Bottom line:

"All in all, the movie meets many of the established criteria for responsible depictions of the passion, but it does not have a perfect score. While the movie is not overtly a work of anti-Jewish propaganda, it could reasonably be interpreted as such anyone predisposed to view it that way."

February 28, 2004
BAMN BAMN: The Kookie Left Attacks the Michigan Civil Rights Initiative in the Courts.
By Gail Heriot

One lawsuit against the Michigan Civil Rights Initiative was apparently not enough. Now there are two. Both are pretty silly, but the newer one is special, because it’s brought by BAMN--an organization with a long track record of really, really silly attacks on efforts to curtail race- and gender-based admissions policies in higher education. It promises to be entertaining if nothing else.

BAMN is the acronym used by an organization that once called itself the Coalition to Defend Affirmative Action By Any Means Necessary. It has now lengthened its name to the Coalition to Defend Affirmative Action and Integration and Fight for Equality By Any Means Necessary. If there’s one thing you can say for the loony left, it’s this: They aren’t stingy with words.

BAMN was available for comic relief during the 1996 campaign for California’s Proposition 209. During that period, its members proved over and over again that the organization had been misnamed. They were not in fact willing to defend affirmative action by any means necessary; they were quite unwilling to use one method that might have won them some converts: rational argument. Instead, BAMN activists staged militant sixties’ style rallies, some small and some rather large, including one that one that shut down a freeway. They did things like stand outside a high school with a bull horn and demand that the students walk out of class in protest of 209. (A few did and were promptly cited for truancy; most just stared out the window in disbelief.) By the end of the campaign, even committed supporters of racial & gender preferences at UC-Berkeley were getting tired of BAMN’s neo-Marxist harangues and fondness for blocking traffic.

I have to admit I loved them. I figured for every television camera that followed them around, Proposition 209 picked up another five to ten thousand votes. The most extreme BAMN antic occurred at Cal State Northridge where they staged a mini-riot to protest KKK Poobah David Duke’s appearance there advocating Proposition 209. The only problem was that Duke had been invited by opponents of the initiative in cooperation with BAMN. The whole thing was staged to embarrass the Yes on Proposition 209 campaign. The plan backfired only because a letter detailing the plan was accidently (well, as far as I know it was accidently) sent to the 209 campaign. By then, even the liberal media figured out what clowns these guys were.

Since 209, BAMN has taken its act all over the country, mostly in the form of shouting down campus speakers who speak out against race-based admissions policies. And they have made a special (if futile) project of demanding that Ward Connerly be fired from the UC Board of Regents.

The current lawsuit is called BAMN v. Board of Canvassers. It seeks to compel the board to reverse its previously issued opinion allowing signature gathering to get underway for the Michigan Civil Rights Initiative (which is modeled after 209). According to BAMN and the other plaintiff organizations with which it has formed a coalition, including the Michigan Black Legislative Caucus, MCRI is misleading because it calls itself a civil rights initiative, but is in fact an anti-civil rights initiative. Apparently the definition of a “civil right” is “a right supported by BAMN.”

Gay marriage politics
By Tom Smith

Weekly Standard has this take. Read the whole thing. The last couple paragraphs are correct I think. The Dems can muddy the waters enough that it will be hard for Bush to take much advantage of the issue.

More on The Passion
By Tom Smith

The annoying thing about this review in Slate is that it makes a number of good points about the movie. Regarding Pilate, for example, who gets tender treatment in the film.

This review by Christopher Hitchens is grotesquely unfair, an exercise in character assassination, pure and simple. But you almost have to admire it for its brutal efficiency. The logic is entirely baffling, but Hitchens, or "Hitch" I guess, to his pals, manages to cover that up pretty well. It goes like this. Hitchens heard from some unidentified guy that Mel Gibson one time made a lot of crude jokes about anal sex (as opposed to the delicate kind I suppose). It therefore follows he is a "queer basher." The term, notice, implies that Gibson has or supports physically assaulting homosexuals. Quite a leap from telling bad jokes, but that's one of the techniques in character assassination, a certain slipperiness of logic. Then the movie also proves, I infer, that Gibson is a repressed sado-masochistic homosexual himself, as were so many Nazis, as Gibson "probably" is also.

I wonder if Gibson could sue Hitchens in the UK for this column? I think he could in the US, but for NY Times v. Sullivan. It's been a while since I looked at libel law, but Hitchens is at least skirting close to a number of libels per se, I would guess. At a minimum, I think a nice, well-crafted letter from Gibson's lawyers might be in order. But perhaps not. Maybe the libel law has gotten to the state that you can call someone a Nazi and a repressed sado-masochistic homosexual and be just peachy. It wouldn't surprise me.

How do we know that Gibson is a Nazi and a repressed sado-masochistic homosexual? The argument goes like this. Gibson's father is a well-known holocaust denier. Asked about the holocaust in a Reader's Digest interview, Gibson replied in language, which Hitchens does not quote but paraphrases for his own purposes, that was ambiguous as to whether he thought there had been a holocaust for the Jews or not. The next bit of "evidence" is that Gibson also allegedly said, in some context or other--we are not told what-- that his father "never told him a lie." Since it is safe to assume, Hitchens says, that Gibson's father sometime or other told him his theories about the Jews, it follows that Gibson himself must regard his father's crackpot anti-Semitic theories as true. Utter, complete rubbish as an argument, of course, but undeniably slick. I think this might be what the law calls "a cooly crafted libel."

Both Hitchens and the Slate reviewer assert that the Passion is an exercise in sado-masochism. I think, however, that the claim that the Passion is an exercise in sexual sado-masochism is unfair in a number of ways. First, it is a bit hypocritical. I thought in our brave new world there was nothing wrong with being a homosexual into S&M. Are you saying there's something wrong with that? I thought it was, different folks, different strokes.

I think it is entirely likely, unfortunately, that word will go out among S&M types that the Passion is a movie not to be missed. I had my doubts about the guy in line in front of me, a black clad biker with whom I had a nice chat about his awesome chopper. But the fact that some, to use a value laden term, sickbirds will go to the movie for that one hopes are idiosyncratic reasons, does not mean the movie is sado-masochistic in intent. Indeed, by Hitchens and Andrew Sullivan's logic, where disapproval of something means that secretly one is drawn to it, they are the ones to be suspected for tendencies to dark sexual practices. I will leave it to readers to decide whom they would rather have babysitting their children. Personally, I would go will Mel.

It is true that a lot of sadism is depicted in the movie. The soldiers torturing Jesus are clearly enjoying themselves. But in my limited experience, perverse depictions of sadism and masochism glamorize them, make them seem appealing one way or another, and that can hardly be said of the Passion. The soldiers are shown to be horribly evil, drunk with their own wickedness in fact.

Sullivan and Hitchens just seem to be indulging themselves, casting slanders at Gibson and his movie in the hope some of it will stick. It's irresponsible and both of them should know better. Hitchens I would guess has no love for Christianity or Catholicism in any event, and who knows what passions are raging in Sullivan's divided mind. The Passion can be legitimately criticized for all kinds of reasons, but stooping to what is morally at least slander, even if it is not technically actionable, and I'm not even sure about that, is far beneath the standard Sullivan should hold himself to and the standard Hitchens should at least aspire to.

Crown Prince Renault
By Mike Rappaport

The Saudis are shocked, shocked that Jews are being denied visas.

By Tom Smith

This looks interesting. via VC.

February 27, 2004
New Fallout from Supreme Court’s Affirmative Action Decisions: Are Racial Preferences Now Required?
By Gail Heriot

Eight months ago, the Supreme Court's historic decisions on affirmative action in higher education appeared to end in a tie score. While the Court upheld the University of Michigan Law School’s racial preference scheme in Grutter v. Bollinger, it condemned as unconstitutional UM’s undergraduate policy in the companion case of Gratz v. Bollinger.

But appearances can be deceiving. In fact, the decisions were an overwhelming defeat for those (like me) who believe that public universities have no business giving one applicant an advantage over another based on his or her skin color--no matter which skin color happens to be in fashion at the time. Writing for the majority in Grutter, Justice Sandra Day O’Connor declared that racial diversity is a “compelling purpose” sufficient to justify extremely strong racial discrimination The bone thrown to racial preference opponents in the form of the Gratz decision had no meat on it, since it was decided on essentially technical grounds. With just a few changes, UM’s undergraduate affirmative action policy was up and running again with every bit as much racial discrimination as before.

When the decisions came down, a “naive” law student asked me whether this meant that state universities would be required to racially discriminate on the basis of race. “No,” I told him, trying to suppress a look of impatience, “the Court is simply taking the position that a State may racially discriminate if it chooses to. A State is free to decline to do so, just as California did with the passage of Proposition 209.” In fact, I assisted Ward Connerly of the American Civil Rights Institute in drafting language for a Michigan popular initiative, which, if passed by voters, will do the same–decline the Supreme Court’s invitation to take race into account at Michigan public universities.

But Orwell is apparently resides in Michigan. Recently, a complaint was filed in the case of Henry v. Michigan Civil Rights Initiative, now pending before the Wayne County Circuit Court. The gist of the complaint is that the proposed Michigan Civil Rights Initiative is in conflict with the Grutter decision and that the court should therefore enjoin its proponents from collecting the signatures necessary to put it on the ballot.. According to the argument, Justice O’Connor held the goal of racial diversity on campus to be “compelling” and hence Michigan is required to pursue it.

You have to admit that there is a certain perverse logic to this argument. Presumably, a “compelling” purpose was originally supposed to mean not simply a good and worthy purpose, but one whose logic is inescapable. That’s why in the past, courts declined to find a compelling purpose in any case where to logic wasn’t downright unavoidable–as in the need to separate prisoners by race during a prison race riot. These days, however, it appears that a “compelling purpose” means whatever policy a majority of Justices endorses. Oh well. We'll just have to stay tuned.

A hearing is scheduled for March 19, 2004.

Why is Dowd not funny?
By Tom Smith

Talk about a bad gig. Having to read Maureen Dowd, whether you feel like it or not. Lady Tee-Hee is pretty good, though.

MD had a funny column years ago on the Supreme Court arguments in Bush v. Gore, the theme of which was in part how transparently partisan were all the justices. I think I am still capable of laughing at jokes made at conservatives' expense, if they are any good. They should retire her and let David Brooks try to be funny. He comes across as nice Uncle Puffy, but he is actually a pretty mean guy in lots of ways: Just look at Bobos in Paradise. He thinks the worst of lots of different kinds of people. Funny, but wrong. But still funny.

But what do I know. I find Shakespeare's comedies unbearably tedious, even though I know that makes me a Phillistine. Mistaken identity, who will marry whom, word play. I just don't care. Killing yourself so as to avoid sitting through Love's Labours Lost should not be considered a sin. Give me a tragedy any day.

Miss Bradshaw Appears to Be Engaged
By Mike Rappaport

So Sex in the City went out with a bang and a whimper. Carrie Bradshaw unsurprisingly chose Mr. Big – make that John – over the Russian, who turned out to be a self-absorbed, status-hungry European. Big was down to earth. Paris is OK for vacations, but surely the show could no more end with Carry abandoning the City than with her giving up sex.

My overall evaluation of the final episode is that it was fine as a final episode, but not as good as the show’s regular episodes. It is hard to do a meaningful final episode, especially for a comedy – remember Seinfeld. Mary Tyler Moore did a good job. Sex in the City was pretty good, but not as good as Mary.

What was most interesting to me about the final episode is what it said about the show’s vision of modern women. Despite the show’s effort to portray its main characters as modern and free from the limits of the past, it is striking how much of the traditional patterns still remained. Most importantly, Carrie must choose between two alpha males – both rich and interesting. Indeed, their wealth matters a good deal, since Carrie is portrayed as pretty darn flighty, having spent what should have been a down payment on her apartment on 100 pairs of $400 shoes. Of course, the writers don’t allow her to get the money from Mr. Big; instead she receives it from her friend Charlotte.

Charlotte, however, is hardly an independent women. Charlotte got the money for the down payment, as well as her Fifth Avenue apartment, the old fashioned way, through a divorce settlement. She finds her new, rich husband in much the same way, marrying her divorce lawyer.

Carrie’s other two friends are bit less traditional. Miranda is a successful lawyer who is willing to marry a man who is “beneath her” socioeconomically. But even Miranda only begins to find real happiness through the sacrifices she makes for her baby and her family.

Samantha, the sex pot of the group (and that’s saying something), even finds love in the end. Of course, she finds it with a male model/actor, who is 20 years her junior. At first, I thought this was unrealistic, but upon reflection, I remembered that the first two of Clark Gable’s five wives were significantly older than he was. Still, as the Gable example suggests, I wouldn’t count on Samantha’s romance lasting very long. Surely not into his 30s and her 50s.

In the end, then, what can you say about the women of Sex in the City? All in all, they are smart, interesting women, but their sentiments, and the sentiments to which the writers appeal in their audience, have much in common with traditional women. In watching the final episode in which Carrie and her friends all find love and happiness at the same time, I was reminded of a Jane Austen novel, like Pride and Prejudice, where the book ends with the two smart sisters marrying rich and worthy husbands. The main difference is that Jane Austen’s heroines were virgins and Carrie and her friends are, er, not.

The Virginia Conference on Brown
By Mike Rappaport

Pallavi Guniganti blogs from the Virginia Conference on Brown v. Board of Education. (Hat tip: Larry Solum) This question and answer, at the very end of the third day, only confirms what many of us suspected: John Harrison just about knows everything.

Update: Can it really be that Pallavi Guniganti has been blogging since 1/5/00? Does anyone know the first blog or even the approximate time when they started?

Update II: Pallavi Guniganti says he has been blogging since 2002, but says blogging goes back to 1997. For links, see his post.

February 26, 2004
Naomi Wolf
By Mike Rappaport

Interesting piece on the Naomi Wolf accusation. Apparently, Wolf wrote about the incident 7 years ago, but presented a different version. Oops.

The passion of watching the Passion
By Tom Smith

I wanted to see Mel Gibson's The Passion of the Christ, so I stood in line at the Edwards multiplex nearest my house, something of a cultural center for my part of the county. Obviously the theatre was going to be packed, so I took my seat early and spent most of a hour fiddling with my Clie and cell phone, trying to make to do lists, return my-little-life phone calls, and so forth. The crowd seemed to consist largely of hard-core born-again sorts, with a sprinkling of Catholics such as myself. I saw quite a number of Ash Wednesday ashes on people's foreheads, which I think is just a Catholic thing. I had wiped mine off, as I always do, because I don't want to be fed to lions or otherwise made fun of. If it's more than one hour on a Stairmaster, I would have let the world go to hell. Good thing I'm not God. Though I would take the job rather than let it go to Frank Rich.

I hardly know what to say about the movie. Oddly, I find myself agreeing with much of what both the movie's supporters and critics say, except for Frank Rich, with whom I refuse ever to agree with about anything. If you are any sort of Christian, it's hard to see how you could not find the movie a moving experience, the way a punch in the stomach is moving. To call the movie violent is a ridiculous understatement. It should have been rated NC-17, not R. Yet, I think there is something legitimate in depicting sadistic violence as being as evil as it is, even apart from any religious significance.

Another reaction I had to the movie is difficult to explain. I felt at once there was something good and something wrong about the exposure of Christ's suffering as explicitly and graphically as was done in the movie. Old Japanese Christians, I have read, used to carry their crucifixes around in little boxes, which were covered with curtains. They would not expose the figure of the suffering Christ to prying eyes. I do not think, as some have said, that Gibson is exploiting the Passion for money. (I do think, however, he ought to consider giving every penny in profits from the movie to some charities dedicated to the alleviation of suffering, and there are a lot to choose from. For example, I bet it takes millions just to care for people who have had limbs blown off by suicide bombers. Just a thought.) Nonetheless, there is a sense in which the crucifixion is meant to be contemplated in private, not shown on a screen, or so it seems to me. I felt a little violated by the movie. One could say, well, how do you think it felt to be scourged or nailed to a cross? True enough, but I felt there was something questionable at least about the display of things that partook uncomfortably of the evil of the original act. If it was wrong to strip off Jesus's cloak and beat him, how is OK for us to watch? If you were there, would you not have covered your face for shame and grief? So why now watch it, in horribly intimate detail, on a movie screen? This may seem ridiculously pious to non-Christians, but I felt somewhat the way I feel when looking at pornography (not that I do that a lot) which is, these are things not meant to be looked at in this way.

On the other hand, there is no doubt that the movie tells the story of Christ's passion powerfully from a traditionalist Catholic point of view. There are lots of little touches I wont get into that suggest Gibson has thought deeply about the event. As there are scenes of unbearable cruelty in the film, there are also some moments of great beauty and tenderness, for example those between Jesus and his Mother.

Much controversy, of course, has surrounded the question of whether the movie is anti-Semitic. To say that it is would be too simple, I think. The movie does not imply that Jews suffer from bad racial or ethnic traits. To the contrary, Jesus, his disciples and family are portrayed as very Jewish. The one overtly anti-Semitic remark in put into the mouth of a sadistic Roman soldier, implying that this is the sort of beast who uses "Jew" as an epithet. On the other hand, Ciaphas is portrayed as a devious, bloodthirsty, dishonest, manipulative and self-righteous thug who forces the Pilate's hand, coercing him into crucifying Jesus to avoid a rebellion. Ciaphas is portrayed as having the saducees well in line, except for a few dissenters who are hounded quickly out of the Temple. On the other hand, the Jewish mob is portrayed as having been rounded up by Ciaphas for the show trial, rather than as some spontaneous outburst of widespread anti-Jesus sentiment. Once the march to Calvary leaves the Temple precincts, the ordinary Jews encountered seem a more mixed lot, some horrified by the spectacle and begging for mercy, some courageously, for Jesus, others getting in on the fun.

That being said, I think any religious Jew and probably most non-religious Jews would have to find the movie both offensive and difficult to sit through. It would perhaps be like my sitting through a movie which depicted in horrifying detail the persecution of some Protestant sect (and there would be many persecutions from which to choose) by Catholic authorities, complete with the wheel, the rack and the pyre. It would be hard not to view such a movie as anti-Catholic, as I watched bishops handing over obviously sincere Christians to flames, and as little Catholic boys and girls made an outing of it. Jews very legitimately fear the inflammatory nature of the story of the Passion. They don't share the belief in its all-important religious significance. To them, it is yet another reason to hate the Jews. Six million dead in the holocaust and 900 from suicide bombings gives you the right to be paranoid, if paranoia it is, and I'm not sure it is.

I would like to have a bottom line on my reaction to the movie, but I don't have one, at least not yet. I think for the vast majority of Christians, it will be a deeply provocative experience, not like seeing a film as much as an unexpected, even invasive religious encounter. For some self-proclaimed Christians, it will be fuel for their crack-pot ideas about the Jews. For Jews, it will be an unwelcome intrusion of a fierce kind of Christian piety into their lives. I have no doubt that this movie will be around for years to come, shown in church halls and the living rooms of fervent Christians. Whether that it is good thing, I do not know.

UPDATE: Interesting take on the movie at Crumudgeonly Clerk. I still think, however, that The Passion was more violent than, say, Saving Private Ryan because of the length, detail and realism with which extended sessions of torture were depicted. The scourging scene, with little bits of flesh flying everywhere, was unlike anything I had seen before. There were scenes in SPR that depicted bodies been blown apart, but those were shocking and brief. The scourging went on and on and on. This is perhaps a silly detail, but I don't see how anyone could possibly have carried a 100 lbs + cross (how much did it weigh, I wonder) up 300 or so feet in elevation, after having been effectively flayed. Indeed, though I am no physician (and my wife who has seen plenty of real, horrible injuries, doesn't want to see the movie), I think the scourging depicted would have left any man in deep shock and shortly thereafter dead. Last night I read the scourging scene in Sister Emmerich's Dolorous Passion, and it seems that was where Gibson got the account of the scourging he followed, though she doesn't say anything about Satan lurking about, carrying a grotesque infant, a touch I found quite medieval and horrifying, which may have been the intent.

An argument with evidence? Get those people out of the blogosphere!
By Tom Smith

My first response to Brian's response to my response to, etc. etc., concerning international comparisons of poverty, is that it is refreshing to be engaging with someone who obviously cares about the facts and wants to argue about what the big external reality out there tells us about, in this case, which country has relatively more poor people. While I confess I regard Brian as a deluded hard-lefty (and he no doubt considers me equally misled), at least we can agree on where it is useful to disagree. Probably it is prejudice, but I find the hard left frequently easier to take than the soft left, perhaps because the hard left thinks they are working with facts, economic laws (in my view fictional, but at least they're trying) and groups exercising power in the world, rather than feelings, sensitivities, nicenesses, fairnesses and all that other stuff that makes me feel like I'm trapped in a cheap restaurant where the food smells bad and they've used too much air freshener.

But to counter nit-pick, having examined the Kenworthy piece Brian links to for all of five minutes, it's not clear to me how it is a measure of absolute poverty levels, even though Kenworthy says it is. On page 1125 of the article (which I am too stupid to figure out how to link to but try this) K explains that he is still measuring poverty with reference to where one is in the distribution of income in one's country (at least I think that is what he's saying) but that these correlate highly among countries, so that's OK. Well, I am nervous about that since that is how this argument started. I liked the Blackburn piece in part because it tried to measure poverty really absolutely, in terms of absolute incomes. I completely agree, however, that subsidies from the state should be considered in income, so if you get free medical care or fish or whatever in Norway, that should count in your income. (I can forsee that that would be hard to do, however, since just because the government spends $X delivering something to you, doesn't mean you get something worth $X. Just look at public education in California, which spends $17,000 a year per kid teaching them not to read -- I exagerate slightly but you see what I mean.)

Also, there is the point I heard Eric Rasmussen made, though I haven't seen it, which is, the appropriate comparison would be between the US and some comparably sized group of social democratic countries, such as perhaps some large chunk of the the EU. And no leaving out basket cases, or else the US should get to drop out Mississippi and so forth. If you pick out Sweden, then I should be able to pick out Washington, Oregon and Northern California.

Maybe there is a law review article in this somewhere. If so, maybe I could get a research assistance to help!

Pot calls kettle black
By Tom Smith

John Holbo (via Volokh) complains of lack of style in the blogosphere. Having found myself unable to get through an entire post of his even though it was about me, I know what he means. Rule of style number one: Just because you find it fascinating to write something, doesn't mean it's going to be fascinating to read. There are other rules, but that one is a good start. OK, one more. Shorter is better than longer, which in turn is not as good as shorter, that being the one which is better than longer, which I think I mentioned, like Plato, I agree is worse. Longer that is.

February 25, 2004
Dear Sports Illustrated: Cancel My Vacation
By Gail Heriot

Yes, yes, I know that Belpre Middle School in Ohio badly overreached when it suspended sixth grader Justin Reyes for bringing Sports Illustrated's swimsuit issue to school. The folks at Belpre must have beach sand for brains. But young Mr. Reyes has incredibly poor timing if he is looking to get sympathy from me. When I told my colleague Mike Kelly that I was going to the local shopping center this evening to buy a bathing suit (something I hadn't done for about a decade), he let me look at his copy of the offending magazine, presumably for inspiration. Now Professor Kelly is not a vicious man; he was genuinely trying to be helpful. But rather than derive inspiration, I was sent into a deep funk from which neither I nor the store clerks at Nordstrom's and Macy's have yet recovered. It seems like I tried on 500 tiny pieces of Lycra, and every one of them revealed some horrible flaw in my body of which I had not previously been aware. I was lucky to get out of there without bursting into tears. Right now, I am not sure whether mere suspension is a strong enough punishment for Mr. Reyes (or more appropriately for each and every person who had anything to do with the production of that rotten little magazine). How about a good old-fashioned execution?

Oh well, maybe I will feel better in the morning ...

60 Percent Dixie -- Ridiculous
By Mike Rappaport

I took the word usage quiz, and it turned out I am 60 percent Dixie. Sorry, that is absurd. I spent 26 years in the New York area, then lived 5 years around DC, and have spent the last 13 in California. Now, my father did go to college in Alabama (travelling there from his home on the Lower East Side), but you would have never known it, except when college football was on.

February 24, 2004
Economics and Sports
By Mike Rappaport

An interesting article on the work of one of the young stars of economics, Steve Levitt. His use of sports to test behavioral predictions is extremely interesting. Hat tip: Marginal Revolution.

Gay marriage politics
By Tom Smith

John Fund weighs in. My gut feeling is, he's wrong. I think rights asserted usually do better, and the politics of people standing up for themselves is often counter-intuitive, but who knows.

Gay marriage is an issue that makes me uncomfortable. I think that bottom line, I am for whatever would strengthen families, of the mom, dad and kids sort. Gay marriage might undermine that. Or, gay marriage might strengthen families. Married gay couples, especially if they had kids, might become more supportive of families than otherwise. Maybe gay couples would set a good example of fidelity. I am skeptical, but who knows. Or maybe they would do just the opposite. Maybe gay marriage would erode the already imperiled institution of marriage. Maybe gays getting married would just be a passing fad, like disco. Or maybe it would be the beginning of the end, with polygamy and who knows what else around the corner. I have no idea, and I don't see how anyone else could, either. You never see any facts cited in the debates. It's just Human Rights! Tradition! Human Rights! etc. etc.

Maybe we should try it in Oregon first and see how it goes.

Should conservatives be allowed to marry?
By Tom Smith

I mean, should they be allowed to marry each other? I am a tolerant sort, but think of them actually having sex? Eeeeeeeeewwww. Being a conservative is, after all, a choice. Nobody is born a conservative. What a funny idea. Mommy, mommy, I want to watch Crossfire! What people think in the privacy of their home is their business, but I just don't want to hear about it. It should certainly not be taught in our schools to our children.

o dear o dear
By Tom Smith

Kerry ahead in yet another poll. Nader to the rescue? Look at these not so great numbers. And these. And these. Last time I saw such numbers, Bush ended up winning, but I don't want to go through that again.

Nice little story from Iran
By Tom Smith

Maybe Michael Jackson better cancel his appearance in Tehran.

Oh dear, 77 percent Dixie
By Tom Smith

I'm 77 percent Dixie on this quiz. I find that a little troubling. It's probably unscientific, anyway. As you may know if you watch a lot of Westerns, lots of folks such as John Wayne went west after the War of Northern Aggression (just kidding!) and settled in the various Rocky Mountain states. There is some family legend to the effect that on my father's side people came ultimately from South Carolina, but as with lots of people who came west to farm, on that side of the family our origins are pretty obscure. On the other side too: they were Irish who came out to die in mines, provide security assistance to settlers whose relations with the indigenous peoples were complex, and fail miserably at farming, though respecting Idaho and potatoes, perhaps they were just ahead of their time. Good thing we discovered the law.

UPDATE: OK, such as The Searchers, the best Western ever? And others.
On a slightly related note, The Missing is now out on DVD.

A few more Catholic blogs
By Tom Smith

There's this and this and of course this and this too.

February 23, 2004
Diversity and the Welfare State
By Mike Rappaport

Andrew Sullivan provides this quote from an article by British intellectual David Goodhart. The claim that people are unlikely to pay taxes for the benefit of people who pursue fundamentally different values than they do strikes me as quite plausible:
    It was the Conservative politician David Willetts who drew my attention to the "progressive dilemma". Speaking at a roundtable on welfare reform, he said: "The basis on which you can extract large sums of money in tax and pay it out in benefits is that most people think the recipients are people like themselves, facing difficulties that they themselves could face. If values become more diverse, if lifestyles become more differentiated, then it becomes more difficult to sustain the legitimacy of a universal risk-pooling welfare state. People ask: 'Why should I pay for them when they are doing things that I wouldn't do?' This is America versus Sweden. You can have a Swedish welfare state provided that you are a homogeneous society with intensely shared values. In the United States you have a very diverse, individualistic society where people feel fewer obligations to fellow citizens. Progressives want diversity, but they thereby undermine part of the moral consensus on which a large welfare state rests."

More on The Ninth Amendment: Rights versus Powers
By Mike Rappaport

Larry Solum has written an excellent post challenging in part the federalism interpretation of the Ninth Amendment. Larry argues that the federalism interpretation is not really consistent with the text of the Ninth Amendment. As usual, Larry’s argument is careful, powerful, and helpful. His argument gets to the nub of the issue. Yet, in this case, I believe that the federalism interpretation has an answer.

Larry argues that the federalism interpretation reads the text as if it said:
    “The enumeration in the Constitution, of certain rights, shall not be construed to enlarge the enumerated legislative powers of Congress.”
In fact, though, the Ninth Amendment says
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Larry is correct: The federalist interpretation does read the text in this manner. But this is not a problem, even for strict textualists like Larry and me. The reason is that, in the context of the Ninth Amendment, “the denial of rights retained by the people” is the equivalent of “the enlargement of the legislative powers of Congress.” They are two ways of saying the same thing.

Now, if you are unfamiliar with the history of the Ninth Amendment, you should be skeptical of my claim. But still you must admit that it is possible that the Framers’ generation might have understood the terms in this way. To persuade you of my claim, though, I would have to show you that the Framers’ generation used the terms in such a way that “the denial of rights retained by the people” is the equivalent of “the enlargement of the legislative powers of Congress.”

Imagine then that I could prove to you the following:

First, the Framers generation viewed government powers and the rights of the people as mutually exclusive: Whatever was a government power was not a right of the people. By contrast, whatever was a right of the people could not be a government power. (In our world, the government can have a power at the same time that the people have a right, and in that situation, the right ordinarily trumps the power. But not in their world, at least when they talked about the Ninth Amendment.)

Consequently, for the Framers’ generation, the relationship between government power and rights of the people is like a border between two countries. By moving the border between Canada and the US northward, you necessarily shrink Canada and enlarge the US. Similarly, by expanding government power, you shrink the retained rights of the people.

Second, the Framers’ generation did not always think of the government having power and the people having rights. Sometimes they thought of the people having power and the government having rights. This interchangeability of rights and powers fits in with the idea that an expansion of government powers/rights contracts the peoples’ powers/rights, and visa versa.

If you are with me so far, then you would, of course, want to know what my evidence is. Well, a post is not the place for anything comprehensive. So let me just give you some excerpts from classic discussions from the Framers’ generation of the Ninth Amendment.

Consider first the speech by James Wilson in the Philadelphia Ratifying Convention explaining why a Constitution with enumerated powers did not need a federal bill of rights. Wilson says:

"A bill of rights annexed to a constitution is an enumeration of the powers reserved.” So, for Wilson, there are powers conferred and powers reserved.

Next consider Madison’s speech introducing his proposed bill of rights. Madison says:
    “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”
Notice two points about Madison’s claim: Madison thinks of rights as “exceptions to powers.” Not as trumps, but as exceptions. Also, when the people’s rights are mistakenly taken away Madison describes that, not as abridging rights, but as assigning those rights to the government.

Finally, Madison makes explicit the claim that rights end where powers begin: In a letter to George Washington explaining the Ninth Amendment, Madison writes: “if a line can be drawn between the power granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

I think this evidence shows that the Framers generation sometimes used the language as I have suggested, especially in the context of the Ninth Amendment. Moreover, it also may explain why the House changed the version of the Ninth Amendment that Madison proposed into our Ninth Amendment. Madison had proposed an amendment that spoke of not construing the enumeration of rights either (1) to diminish the other rights retained by the people or (2) to enlarge the powers delegated by the constitution to the federal government. Under this theory, Madison’s statement was redundant and the House may have eliminated the enlargement of powers language because it was essentially duplicative of the diminishing the other rights retained by the people language.

Of course, this change made the Ninth Amendment harder to understand. Although Madison claimed that the new language was the equivalent of the old, people like Edmund Randolph did not think the new language was clear enough. Yet, in the end, Randolph’s arguments to the Virginia Legislature that the language was insufficiently clear did not prevail and that legislature ratified the Ninth Amendment.

Update: For Larry Solum's response to this post, see here; For my first post on the Ninth Amendment, see here.

February 22, 2004
Rain in San Diego
By Tom Smith

It's raining again today. Really raining. Native San Diegans love this sort of weather. My kids love it, and profess to want to move when they grow up to some place where it rains a lot. I tell them, there are plenty of those. When it rains, natives immediately build fires, rent movies, curl up and go on about how cozy it all is. On the very rare occasions it snows in the hills around here, they simply go insane.

My feeling, and that of many transplants is, been there, done way too much of that. One hour of rain and I'm, OK, enough of that, let's see some sun. Every gorgeous February day is making up for lost time, as far as I'm concerned. Between Ithaca, New Haven, England and DC, I put in some 16 years in the land of long, grey winters and short stifling summers. If I want culture, I read a book. It's February. Let a thousand flowers bloom.

On the upside, my TiVO has spontaneously repaired itself. I had diagnosed a hard drive failure. But apparently it was only some software corruption which the DVR recognized and actually fixed, just as the error message said it might. But who believes those things-- "Don't touch this and maybe it will fix itself, and maybe pigs will fly out of your butt, too." I prefer to see this welcome event as divine intervention. God heard my wails of despair and nudged a few electrons here and there and it's all back. He is merciful. I say He because I have a hard time believing a female deity would care that much about my television viewing, remote controls and related phenomena, I am given to understand, being more of a guy thing, and no other female of my acquaintance viewing my television habits as any more than tolerable. Thank you, Big Guy. This Bud's for You.

Mad about you
By Tom Smith

I think it's safe to conclude from this post that the folks over at the examined life blog at mad at me. They call me only "Mr. Smith" when I should have thought "Professor Smith" would have been more courteous, but why stand on ceremony?

I have to admit I find all the advice from those on the left about how conservatives should properly complain about being discriminated against rather confusing. It has to be done, apparently, very intelligently, very carefully, with all due deference to proper standards and one should be very careful never to get angry about it. I have actually given some thought to the question "What are those on the right to do about their marginalized place in the academy?" and I not only don't see any easy answers; I don't see any answers at all. I think all there is to do really is try to build alternative institutions and take advantage of those. Places such as AEI, Heritage, Hoover (is Stanford still trying to get rid of it?) provide homes where people with verbotten ideas can still speak freely. And I suppose Catholic universities such as the one I am a tenured professor at, oddly enough, provide freedom to those who happen to agree with much of what the Church espouses. I have found a warm, dry, cosy and even very scenic bridge under which to sleep. (And just so you don't feel too sorry for me, I have turned down what many would see as more prestigious gigs because I like my little spot in the sun.)

Be that as it may, in my rants about left and liberal academics not getting it about discrimination against conservatives, I am not trying to be especially clever, and no doubt succeeding in not being so. I think the justice of my position speaks for itself. It is wrong, and especially wrong for people and institutions that are supposed to committed to the truth, to take advantage of their positions to keep out their ideological competitors. Predictable, of course. But still wrong. Efforts to make it so much more complicated than that just distract from the issue.

I am struck by the parallels between the sorts of justifications those on the left come up with for the plight of conservatives, with the arguments one used to hear about blacks and Jews. When I see what looks to me as somebody posing as reasonable by saying he doesn't personally believe conservatives are stupid, it reminds me of someone at an all-white club holding forth oh-so-liberally that he does not think blacks are actually stupid. If I was overly sensitive in getting that impression from the post I reacted to at the examined life blog, I'm sorry. But I am sensitive about it. I am just one of many conservative libertarian sorts who have been excluded from consideration for academic jobs I was well qualified for because of my politics. For example, more than fifteen years ago, the distinguished legal scholar Charles Allen Wright of the University of Texas called my note editor at Yale, Penny Rostow (neice of the distinguished late former dean of Yale Law School) to ask about me and whether I was, as rumored, a conservative. As Penny told me, she "didn't feel she could deny it." Professor Wright said that was unfortunate, as in that event my candidacy could go no further. It was just that simple, and I got the feeling Wright genuinely regretted this, but that was just the way it was. I think this is just like their finding out that that some otherwise qualified canditdate was a Jew, although he could "pass," back in the bad old days at White & Case or one of the other white-shoe Wall Street firms, where they worried about "the cut of a man's jib." (Don't get that reference? A jib is the foremost sail on yacht, shaped roughly like a nose. Its cut is its shape. Not liking the shape of a person's nose is slang for saying you don't like him because he's a Jew. Nice, huh? And the answers to this discrimination have names like Skadden, Arps and Paul, Weiss, which rank well above White & Case in every recent survey of law firms I have seen.)

Whether it does much good, and even though I doubt that it will, I think discrimination against conservatives should be seen as just as ugly as it is, as belonging in the same category as discrimination against blacks, Jews, Catholics or gays. Liberals pride themselves on being especially fair-minded and moral, so it is especially appropriate to point this out to them. I am not sure conservatives have a lot to gain by not being prickly about it. There is that field versus house conservative debate. But to all my liberal friends who feel insulted by my rants, I would say, first, imagine an insult that actually has a big impact on your life prospects and how that feels, and then second, I would use one of the arguments used against conservatives: In the scheme of things, to feel insulted by conservatives who are mad about being discrimated against is really pretty trivial in the scheme of things, isn't it?

College Football
By Tom Smith

I have a soft spot for UC-Boulder, but it surely looks like things have gotten completely out of hand there, and probably in college football generally. And pro football has some big issues of its own . . . But that's another story. Here's a modest proposal. Let's let the NFL draft kids who just want to play football right out of high school. They don't belong in college anyway. Let's set up some kind of monitoring system that assures the behavior of athletes has to be better than that of the average college student, not worse than that of the average goon.

February 21, 2004
A strange day
By Tom Smith

I thought it was going to be a nice sort of day. It began rainy, which meant that my youngest's soccer game was cancelled. Not to be a spoilsport, but, oh bliss, not to have to herd the children to the minivan, drive to the school, herd them back, drive home, etc. etc., but just to sit in the blissful quiet on the couch and watch the raindrops fall.

But this of course, was a complete illusion. Soon the television was on, stupid Saturday morning cartoons in full blare. Actually, I like lots of cartoons, Grim and Evil, Invader ZIM, Spaceghost, not to mention real treasures such as vintage (and extremely un-PC) Johnny Quest, but this was none of that. It was just some utterly forgettable nonsense. And this, after letting the male brood (Jeanne was at a Mom's meeting) watch Matrix Reloaded on the TV last night (we fast forwarded through the R-rated bits). I'm sorry, Matrix lovers, but what a lame movie. The martial arts bits were cool, if silly.

But I digress. Then shortly after the cartoons were off, my new 140 hour TiVO suffered a hard drive failure. It is, I am pretty sure, dead. Hours of BBC murder mysteries, countless animal shows, numerous Westerns all gone, gone. In the meantime, my twelve year old used a completely forbidden word, was ratted out by my ten year old, and sentenced to a 30 minute time-out. In a completely unrelated event, he later poked his brother in the stomach with his bokken, a wooden samurai sword. (Our house is very well equipped with wooden swords, staffs and other martial arts paraphenalia.) Another time out, shortened when I learn this was in response to middle child's throwing lemons at older child.

I forgot to mention during this whole period I am managing our 4 month year old, an outstanding little guy, if remarkably fat, which I gather is healthy. In this time he went through his whole repetoire of behaviors, which is to say, he slept, ate, smiled and laughed goofily, cried and pooped enormously.

Then the phone rang. It was about 9:30 but felt like 5:30. It turned out my ten year old had conspired with two of his friends for them to come over to our house that day. The first would be arriving in about an hour, followed shortly by another. Mom (who was at work, seeing patients) said it was OK. They were then going to go over to another boy's house for a slumber party, but that boy turned out to be out of town. Our house became the default slumber party location. So now we are having a slumber party. Fine. I was going to cook a special dinner for my wife's birthday tonight, but OK, what is a few more boys. Chaos is chaos.

I think we will be watching The Lion King 1 1/2, but I will mostly be trying to read Lawrence Lessig's acclaimed book Code. Granted, I am not in the best of moods, though I am resigned and accepting of all this, but why is it law professors can't just write like everybody else, or perhaps even a little better? I am now on about page 20, and it's getting better, but the first few pages of this book set some kind of record for pomposity and condescension. (I hear crying, so this post will have to end shortly.) It is this style of writing: "We are not convinced by reasons, but by stories. Narratives. Narratives which are stories. Stories of people. Of things. And so I will tell you a story. A story that may seem strange. At first. The story of a man and a woman. The woman grew flowers, beautiful flowers, flowers that bloomed in the spring and blah blah blah." It ends up sounding like the lead in to an episode of the Twilight Zone. And then there are all the self references. "I first had this idea when I was at Yale blah blah blah." These bits should be printed in a different font so they would be easier to skip. And the analogy of enthusiasm about free markets for post-Soviet Russia and for free markets in cyberspace, as being equally misguided, is just overblown and silly, not to mention probably wrong. Especially I suppose to libertarians types such as myself, it is really annoying to have people point to market failures in Russia and say, see! see! markets can't do without us so easily can they, can they? Yes, seven decades of war, genocide, terror, propaganda, miseducation, and general economic disaster has a way of making it difficult for a free market democracy to spring up on schedule. How very puzzling.

In a better world every law professor would spend a year laboring under an old time editor with newspaper ink in his veins, a green eyeshade, and a disposition like a constipated cat. He would tell us not to say "I" unless we had to, and use sentences with subjects and verbs. Both. And not to write in fragments. Ever. "You're not f#$%ing Hemingway, you know," he would say. But I am sure it will turn out to be a swell book. (The crying has stopped. However, we may have to revise the weapons policy around here.)

More wisdom from Hanson
By Tom Smith

Right as usual.

Wilkinson on Ideal Libertarian Theory
By Mike Rappaport

An interesting post on ideal libertarian theory by Will Wilkinson:
    Like Rawlsian liberals, libertarians often mistake fairly indelible features of social reality for contingencies, thereby overshooting anything that might serve as a feasible ideal.

    No one should be convinced that anything approximating a Nozickian or Randian minimal state, much less, Rothbardian anarchocapitalism, is worth taking seriously unless it can be shown that these theories are compatible with what we know about history and social psychology. Debating whether voluntary mechanisms can or cannot solve all the important collective action problems, or whether there could be a positive net benefit to empowering the state to provide for public goods, given public choice assumptions, is not totally unlike arguing about whether it is possible for the People's Revolution to draw its energy directly from an agricultural rather than an industrial underclass.
Wilkinson concludes:
    So what we need is a theory of just how libertarian a particular society could possibly get, given human psychology, the set of social and economic relations, the available mechanisms of persuasion, and the set of belief systems or "macro mythologies", at a given time, plus the dynamics that govern changes in these things. My guess is that for US society starting today, it's possible to get significantly more libertarian, but not radically more libertarian. What might that society look like?
My take: I agree with Wilkinson that we need to think much more seriously than libertarians usually do about what is feasible in the short and in the long term. Yet, that should not entirely lead us to forget the importance of ideals, even if they remain unrealizable.

February 20, 2004
The End of Sex
By Mike Rappaport

On Sunday, HBO runs the final episode of Sex in the City. This is a big event in my house, especially with my wife. (Of course, it does not take much to get me to watch a well-written show about sex, even if does have a feminine perspective -- a chick flick for TV). Apparently, the producers filmed three endings. The question is whether Carrie, the main character, will choose the Russian artist or the American businessman; it is not entirely clear what the third ending is. But as between the first two endings, I will go out on a limb and confidently predict that Carrie will choose "Big," the American businessman.

Stay tuned for more discussion following the final episode.

International Comparison of Poverty
By Tom Smith

This appears to be data comparing poverty in absolute terms across the North American and European countries. (Go to the unofficial Right Coast typepad support site linked above and click on the link under "international comparisions of poverty." BTW, does anybody like my typepad banner? I thought it was really cool, but everyone I've showed it to so far hates it.) The US comes out having the lowest absolute poverty rate except for Canada. IMHO Canada would not be doing nearly so well if they couldn't free ride off of us and if need be resort to all those cold lakes teeming with fish. At any rate, this data, while somewhat dated, suggests European countries are much poorer than the US in absolute terms. Maybe I'm missing something. It happens. But I think this answers Brian's challenge.

The data is from Blackburn, International Comparisons of Poverty in the 1995 AER. You can download it from JSTOR, but you have to be coming from a qualified URL.

What people really care about
By Tom Smith

I have gotten more email about my SUV posts than any other posts I have written. They have been mostly pro SUV, but there have been some notable anti-SUV messages as well. We Americans care about our vehicles.

A little clarification may be in order as to the sentiments I meant to express. I am not saying that overall, from a societal point of view, big SUVs are safer or as safe as cars. I know they do more damage to those they hit than do small cars. In that sense (though not necessarily in the sense of who is at fault) SUVs cause more deaths than do at least some smaller cars. I am also aware, even impressed, by how much mayhem is caused by large pickups, which are off the charts almost in the number of deaths which accidents they are involved in cause, relative to small cars. I also can see that it is plausible that people who drive SUVs and pickups may be worse drivers on average than people who drive, say, minivans, and that this may well be part of the explanation for the high fatalities of the former (and low fatalities in the latter).

But all of this misses my main point. I am a very safe driver. I haven't had a moving violation in 20 years or more, I've never been in a serious accident or any kind of accident since high school, and my attitude on the road goes beyond driving defensively to driving in the grip of paranoia. If you saw how people drive in San Diego, you would see why. My point is that it is safest for me to be in a big SUV. And I am not one of those beer swilling, Yahoo shouting idiots in a huge pickup truck. As with guns, it is not a justification to take away from a responsible citizen some useful and beneficial tool, such as an SUV or a gun, that some bad or careless people misuse those same tools. It is fine with me if big SUV drivers have to prove they have never applied lipstick while merging lanes, are capable of getting through a week without consuming a case of beer, and can spell their own names. That would eliminate many pickup and SUV drivers in my part of the county and that would be fine with me. But just because lots of drivers are careless idiots is no reason to burden the use of the thing among people who drive (or shoot) carefully. In the case of SUVs, that would be putting my family at risk in order to control behavior that should be addressed more directly, for example, by better enforcement of speeding and traffic laws generally, which are widely ignored as far as I can see in San Diego and probably in many places, or even by requiring a higher grade of license to drive a really big SUV or pickup.

Wanting to just force manufacturers and consumers to make and buy smaller vehicles is similar in a way to insurance regulation that has the effect of not allowing insurers to charge lower premiums to lower risk insureds. People ought to be able to take advantage of their good behavior, for example by driving a truck, such as a big SUV, which is safer for them if they know how to drive it, and does not pose an unacceptable risk to others, again, if driven properly. The analogy to guns is close. If you know how to store it and use it properly, of course having a gun makes your home more secure. The fact that some idiots leave their guns about so their kids can take them to school, is part of the case against being an idiot, not against guns. It is a serious offense to leave a gun somewhere where a child can get to it in California, and I have no big problem with that law. At least it is better than a paternalism that does not distinguish between those who need it and those who don't, which deprives the latter of ability to benefit from their own skills and good habits. So, by all means take big trucks away from people who can't drive them, ban cell phone use and make up application while driving, put more CHiPs on the roads, throw the book at drunk drivers, allow insurance companies to charge risk adjusted premiums and generally make life miserable for careless, fast, and stupid drivers. That leaves me with my great big SUV and fewer of them on the road in the wrong hands that I need to worry about, and I am happy.
UPDATE: My brother informs me it is "chippies" not "CHiPs." I actually have heard California Highway Patrol officers referred to as Chips, and I live in California, but my brother knows far more about law enforcement stuff than I do, so I will defer to his opinion.

The Ninth Amendment
By Mike Rappaport

There has been an interesting debate on the Ninth Amendment, both at Southern Appeal and throughout the Blogosphere. For Southern Appeal, start here and read up. For some other posts, look here.

Coincidentally, I am covering the Ninth Amendment in my Advanced Constitutional Law Class, which focuses on constitutional history. While I have not completely made up my mind on the question, I lean strongly in favor of the traditional federalism interpretation.

Under that interpretation, the Ninth Amendment was intended to address the possibility that the inclusion of a Bill of Rights would lead to an unjustified widening of the federal government’s enumerated powers. In Federalist 84, Alexander Hamilton argued that a bill of rights generally, and a provision protecting Freedom of the Press specifically, would be dangerous, because it might lead to a mistaken broadening of Congress’s enumerated powers. Hamilton writes:
    I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
When introducing the Ninth Amendment to the House, Madison explained that it was intended to guard against this problem.

Thus, under the Federalism interpretation, the “rights retained by the people” include those rights that the people enjoy against the federal government because they lie outside of the federal government’s enumerated powers. Accordingly, the Ninth Amendment would protect against the federal government’s regulation of abortion, not because there is a natural right to abortion, but because there is no enumerated power allowing the federal government to regulate it in the states. (However, Congress would have an enumerated power to regulate abortion in the District of Columbia.)

One difficulty that people have with this interpretation is that it assumes that powers not conferred on the federal government are rights of the people. To our ears, that seems problematic, or as John Hart Ely put it, “a category mistaken.” But the Federalists used this formulation all of the time, saying that the enumerated powers protected people’s rights because those powers were limited. For example, as Madison stated to George Washington in a letter explaining the Ninth Amendment: “if a line can be drawn between the power granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended. If no line can be drawn, a declaration in either form would amount to nothing.”

Another criticism of the federalism interpretation is that it renders the Ninth Amendment redundant of the Tenth Amendment, but this is clearly mistaken. The Tenth Amendment guards against the mistaken claim that there are unenumerated powers; the Ninth Amendment guards against the mistaken inference that the enumerated powers are broader than they would otherwise seem, because only such a broad interpretation would be consistent with the adoption of the bill of rights.

One further point about the federalism interpretation. It does not necessarily deny that some of the rights retained by the people are natural rights. After all, under the original meaning of the enumerated powers, many natural rights might exist in areas beyond the federal government’s enumerated powers.

In contrast to the federalism interpretation, others have argued that the Ninth Amendment protects unenumerated, individual, natural rights that apply against the federal government even when it is exercising its enumerated powers. While there may be some support for this view, at present I am more convinced of the federalism interpretation.

Without assessing the unenumerated rights position, let me just mention some of the complications of that view. Significantly, even if one does believe that the Ninth Amendment refers to unenumerated natural rights, it is not clear that this would allow judicial review to protect individual rights, whether they be marital privacy or the right to contract. First, it is not clear that the federal courts are supposed to enforce those natural rights. It is quite possible that the Framers would have thought that these natural rights should be protected through political action, such as the type of action by state legislatures that Madison and Jefferson tried to promote against the Sedition Act, or though revolutionary action, such as the Revolutionary War, which justified itself based on natural rights.

Second, some of these natural rights might be group rights. For example, Madison tried to include in the Bill of Rights the following provision: “That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.” Such a right was included in the great majority of state bills of rights, and Akhil Amar makes a strong case for showing that the Framers believed that this was a natural right (even though he does not persuade me that that right should override Article V of the Constitution).

February 19, 2004
Thank God for the electoral college
By Tom Smith

Kerry still faces a tough road to the White House, a new Zogby poll suggests.

Glenn Reynolds at home
By Tom Smith

The really appalling thing about this picture of Glenn Reynolds is how tidy his home appears to be. Is he a naturally tidy person? It is all very depressing. Both my wife and I tend to be a bit messy, but I think she is a much messier person than I am really, though she gets angry whenever I say this. All my piles tend to be of the same sort of thing. E.g. books, papers, clothes, etc., all in separate piles. My wife's piles actually sometimes mix species of things, which is an entirely higher order of messiness: clothes, then some papers, a kitchen implement, some photos, magazines, more clothes, and so on. The horrible thing is, I admire tidiness. I aspire to it. Really well organized things fill me with longing. We are, however, very clean. Messy is not the same as dirty. Then there are the four boys and two large dogs. I don't think my house has ever looked as tidy as Glenn's. My office is a mess too. Sigh.

But, we here at the Right Coast also have aspirations to switch to Typepad. You can, as Glenn shows, upload photos very easily, which would open to me a whole new dimension of the sort of vulgar humor I have been told law professors should be above. I agree with that sentiment; it is just that I suffer from frequent collapses of will power. I resolve to try to keep everything on this blog on a high plane, except when I just cannot help myself.

When you're all alone
By Tom Smith

This kid should try being a conservative at an AALS function. Via instapundit.

(Don't worry. I don't feel sorry for myself. I spent four years in a big D.C. law firm and a year playing football for a coach named Mush, whose idea of fun was to make us beg for water after hot August practices. I know how lucky I am.)

Your Core
By Tom Smith

The big fitness thing now is strengthening the "core", the muscles around your abdomen and pelvis that stabilize you as you do anything else. There seems to be a lot to it, especially if you are someone who has any kind of back problems. Here are some good core exercises, from the Mayo Clinic. Oddly, the guy doing them looks a lot like me after I buzz my head (cheaper than Supercuts) except his skin is a few tones darker. Kudos to the Mayo Clinic for using a real guy instead of some model with an 8 pack. Good explanation from those famous doctors in the snowy north.

More on the core later. In the meantime, don't do what I did and buy a $1500 home gym. You're much better off with an exercise ball (scroll down to "fitness ball . . . "), a bench and some dumbbells. Save your money and buy one of these, the Holy Grail of any gym's torture devices.

Oh yeah, and about diets.

Worthwhile Canadian Scandal
By Maimon Schwarzschild

Corruption scandals are engulfing the new Prime Minister of Canada, Paul Martin, and the Liberal Party which he heads. The Liberal Party has dominated Canadian politics for decades, and comes close to monopolizing it: there is really no other national party in the country. The scandals couldn't happen to a nicer group. The Liberals have a sniffy Euro-leftish view of the United States, and Liberal dignitaries keep calling George W. Bush a "moron" even when the microphone turns out to be embarrassingly open. Corruption and self-righteousness: who could imagine that those would go together?

For a fascinating and hilarious account of the scandalous goings-on, read Andrew Coyne's new blog. (Coyne is hilarious in an understated Canadian sort of way, of course. Coyne's day job is as a journo on Canada's National Post.)

(If the ins and outs of Coyne's story seem complicated at first, keep scrolling down. It soon starts to make sense. And it gets funnier, too, the more you read.)

To appreciate the in-grown quality of what is going on with the Liberals, it may help to know that Paul Martin, the new Liberal Prime Minister, is the son of Paul Martin (senior), a Liberal cabinet minister in the 1950s and 60s who perennially and unsuccessfully fought for the Liberal leadership, finally losing out in 1968 to Pierre Elliott Trudeau. One of Trudeau's proteges was a tough Quebecer named Jean Chretien, who went on to become Prime Minister in 1993 and has now just yielded the job, very ungraciously, to Martin (junior). By all accounts, Chretien and Martin hate each other.

While in office, Chretien -- ably assisted by various Liberal and Quebec cronies -- apparently kept themselves busy diverting hundreds of millions of dollars of public money to themselves, to their relatives, and to pork barrel projects in a handful of Quebec parliamentary districts, especially Chretien's. (Chretien's district, or "riding" as parliamentary districts are called in Canada, was the town of Shawinigan, Que: so inevitably we have the "Shawinigan shenanigans".) (Or as Mark Steyn says, "A Shawinigan win-again".)

No one accuses Paul Martin of having been directly involved in the Shawinigan shenanigans. But since Martin was Minister of Finance in Chretien's government, and since Martin's Leader and his party were evidently and exuberantly corrupt, questions like What did he know? When did he know it? and Why didn't he do anything about it? are rearing their ugly head(s).

Goodness how sad, as Evelyn Waugh would say.

Still, what can you expect of a country whose political leaders, in so many cases, turn out to be the sons of prominent politicians themselves?

Don't Let McGovern be McGovern
By Mike Rappaport

The New York Times published a letter by George McGovern that is one of the most ridiculous I have ever read. Given all the discussion of the stupidity of conservatives, I am hesitant to call the letter stupid, but what the hell -- it is. McGovern is a parody of himself. (Hat tip: Opinion Journal)

February 18, 2004
Speaking of SUVs
By Tom Smith

A loyal reader has pointed out to me this utterly tendentious and misinformative article about SUVs in a recent New Yorker.

Besides its stupid attacks on women who wear hiking boots at the mall--maybe because they're comfortable and at under $100 relatively inexpensive and look cool-- Mr. Gladwell completely misrepresents the facts about SUV safety. And if Gladwell knew anything about women he would know they almost always have a good reason for wearing what they are wearing on their feet.

Here's the bad news. The safest vehicle on the road is the largest SUV you can get your hands on. Gladwell has two academics who have put together numbers showing SUVs are much more dangerous. I think I'll rely instead on the Insurance Institute of Highway Safety, which is funded by the industry that makes more money the fewer claims they have to pay.

Just a little quote for you:

Vehicle size and weight are important characteristics that influence crashworthiness. The laws of physics dictate that, all else being equal, larger and heavier vehicles are safer than smaller and lighter ones. In relation to their numbers on the road, small cars have more than twice as many occupant deaths each year as large cars.

Size and weight are closely related. Large vehicles typically are heavy, and small ones are light. But these two characteristics don't influence crashworthiness the same way. Vehicle size can protect you in both single- and two-vehicle collisions because larger vehicles usually have longer crush zones, which help prevent damage to the safety cage and lower the crash forces inside it.

All else being equal, you're safer traveling in a passenger vehicle that's larger and heavier than in one that's smaller and lighter. Vehicle weight protects you principally in two-vehicle crashes. In a head-on crash, for example, the heavier vehicle drives the lighter one backwards, which decreases forces inside the heavy vehicle and increases forces in the lighter one. All heavy vehicles, even poorly designed ones, offer this advantage in two-vehicle collisions but may not offer good protection in single-vehicle crashes.

Look at the bar graph and see how well large SUVs do compared to even the largest cars, let alone small cars. Then take a look at Gladwell's implication that you're safer in a small, well designed car like the Porsche Boxster. Utter rubbish. Here's what small cars look like after hit by big cars. Here's a brochure produced by the manufacturers on SUV safety, but it looks pretty well documented, and it has pretty graphs.

And yes, I concede pickups are dangerous to themselves and others. My dream of a gigantic crew cab with a camper on back for remote desert camping trips may have to go unrealized. Suburban with a trailier maybe. I'll keep you posted.

What a relief!
By Tom Smith

I can only say I am greatly relieved that this non-conservative academic is not very troubled about discrimination against conservatives in the academy. What with 9/11 and all that, there is all together too much anxiety in this world. It is a relief, a truly soothing realization, that liberals and others on the left are not racked with guilt, anxiety or that urge to do something, however awful the consequences, that so often arises in them when they see an injustice. As someone on the right, I am relieved personally, because if liberals thought something should be done about hiring more conservatives, they would come up with some policy that would discredit us and undermine us, all the more so because they were trying to help us.

Furthermore, I think we should be grateful that some liberals are so broad minded, so, well, liberal as to understand our pain, our frustration at being excluded from their wonderful little world. It is good to know that conservatives are not discriminated against, but rather take themselves out of the running for academic jobs, thus absolving those who would discriminate against them if they had the chance of having to do the dirty work of actually discriminating against them. It's nice when the gentlepersons' agreement is self-enforcing like that. Sort of like the Invisible Hand.

And the point that someday conservatives will dominate the world anyway, so liberals should make hay while the sun shines, so to speak, shows an ethical sensitivity that just shouts "PhD in philosophy." I have to admit, not being professionally trained in ethics and the like, that that one had not occurred to me.

I know I have made this point before, but let me just suggest a little method to philosophers and others in fields intellectually superior to us mere lawyers. A thought experiment. Try substituting "blacks" or "Jews" into your propositions about conservatives and just see how it sounds. "I personally don't subscribe to the view that blacks are stupider than other people . . ." Oh, you don't! Somebody call the NAACP! This man has an award coming! Or, "Jews are going to take over the world, so a little discrimination against them now won't do that much harm . . ." Careful with that one. Maybe you shouldn't cede ground to the Jews so easily. Give them an inch and they take a mile, you know.

So far the left's position in this little internet kerfuffle over conservatives in the academy could be summed up almost fairly as, conservatives are wicked, and conservatives are stupid, and in any event, we don't discriminate against them, they just mysteriously choose not apply for jobs. (Mysteriously, having sat through classes about how America started the cold war, committed genocide against various groups, or has a bad culture, or economic system, or that art that mocks it is just swell, etc. etc. We went to college, you know.) I just have one question for you: Would you like ice in that mint julip, Massa?

In Defense of SUVs
By Tom Smith

So now Steve Bainbridge wants to attack SUVs, apparently because they slow down his BMW convertible or Porsche Boxster or whatever he's driving these days. Enough is enough.

As to social responsibility: who cares about social responsibility? People who don't like big vehicles usually live in bigger houses which use up more electricity, oil, gas and so on. Nobody is asking them to live in smaller houses. Oh, no, it's all, your slate master bathroom is just so fabulous, Amanda!, and where did you get that counter material?! People who can't afford real estate need a way to puff themselves up too, you know.

As to safety. This argument really bothers me. I'm supposed to drive my precious children around in a small car so some idiot can kill them because he's talking to his broker on his cell phone, all so two hundred years from now you won't be able to grow palm trees in Minneapolis? Well here's the news. I don't care. I would be happy with a law that said people who can't spell SUV (and there are plenty in my neighborhood) can't drive them, but responsible people like me should be able to get a Ford F-350 crew cab with all-terrain tires and the optional V-10 if they want to. And I want to. In the meantime, as the bumper sticker says, go ahead and honk again, I'm reloading. Oh, OK, I wouldn't really shoot you. But don't be too sure. You know what kind of people drive those things.

Did I mention this interview I heard with Royal Robbins or some other ultra-rich founder of a climbing gear company? He was all about, oh, those nasty people who drive SUV's. They don't care about the earth. What was he doing in a few days? Flying his private jet down to Patagonia to climb and commune with nature. One trip like that in a jet burns up more fuel than hundreds of SUVs in a year. When every rich Hollywood liberal gives up their jet, I'll give up the SUV I am going to get someday.

The real reason SUV haters hate SUV's is they can't stand the symbolism of it. 5000 pound Mercedes are fine. Have you ever heard anyone say, oh, those movie stars' cars are so long. Nope, limousines are fine. But if it's boxy or you can actually haul something in it, oh, dear, the masses are getting above themselves. Too many children. Why can't they just have one or two like Nigel and I. And those big dogs! What's wrong with a Bichon? If I can't have my suburban then every LA entertainment industry flea shouldn't be able to have his or her Lexus either. It should be about mass, not style. Michael Moore is traveling around promoting his book, a terrible waste of trees, with an entourage in SUVs. No doubt his bodyguards are armed as well. When he writes, "Dude, who took my SUVs and guns" I'll give up my vehicular ambitions.

I've rented an Excursion. They're great. They drive surprisingly nicely. You put on your left turn signal and you see people start to slow down two blocks away. They call it "road presence." I like that. This is America. If we start to run out of air, we can make the French ride bicycles. They look cute that way.

Israeli Arabs Like Freedom in the Zionist Entity
By Mike Rappaport

Israeli Arabs are upset that Prime Minister is considering ceding their community to the Palestinian Authority in the West Bank. While the rhetoric of Israel’s critics throughout the world would appear to suggest these Arabs would prefer being ruled by their fellow Arabs, they don’t, according to this story:
    Although Israeli Arabs of Umm-al-Fahm share much with their fellow Arabs in the neighboring West Bank, the former say they are more concerned about preserving the rights they enjoy as Israelis — including access to jobs, free speech, a democratic vote and a measure of political freedom. "We have a saying here," said Shoaa Saad, 22, "that the 'evil' of Israel is better than the 'heaven' of the West Bank. "Here you can say whatever you like and do whatever you want — so long as you don't touch the security of Israel. Over there, if you talk about [Palestinian Authority Chairman Yasser] Arafat, they can arrest you and beat you up."

    The idea of ceding some of these population centers appeals to many Jewish Israelis, who fear that the Arabs, with their higher birthrate, eventually will outnumber the Jews in Israel. In 50 years, the Israeli-Arab population has increased from 160,000 to 1.2 million; there are 5 million Jews in Israel.

    "Mr. Sharon seems to want us to join an unknown state that doesn't have a parliament, or a democracy, or even decent universities," said Mr. Allo, who studied law and social anthropology at predominantly Jewish colleges in Haifa and Netanya.

February 17, 2004
Kerry squeeze update
By Tom Smith

We are not too proud to keep you posted on this sort of thing. Admit it. You want to know. Well, maybe not. But I do.

Spend all day doing little math puzzles
By Tom Smith

It's good for you. Really.

UPDATE: Here's a famous one some of you may recognize. Consider "triangular numbers." They go, 1, 3, 6, 10, 15 . . . Note that the pattern is 1, 1+2, 1+2+3, 1+2+3+4, and so on. They're triangular because they are the number of dots that can be put in a triangular, bowling pin type pattern. The sum of all triangular numbers is obviously infinite. But what is the sum of the reciprocals of these numbers, i.e., 1/1 + 1/3 + 1/6 + 1/10 . . . Huygens gave this problem to Leibnitz to solve, and he came up with a very clever solution (he was a genius, after all). Supposedly contemplating it and similar problems led him to discover calculus. I showed it to my middle boy, Patrick, and the solution and said "isn't it weird and beautiful?" He said, "more weird than beautiful."