Begging The Question

Saturday, December 13, 2003

Let's Buy Some Drugs
Go read Fitz-Hume's post about drugs in Afghanistan first. It's about how the U.S. Government is saying, on the one hand, buying drugs here supports terrorism, and on the other hand, not stopping drug production or sales in Afghanistan. I wanted to respond to it with a devil's advocate argument, but it was stating to run kinda long for the comments section, and since I have the password, I decided just to make it a full post.

Here's my question: Why don't we just buy the poppy from the locals? (We, as in the U.S. Government, not me and Fitz.) This would prevent illicit sales to terrorists and still give local farmers economic support they desperately need. Then, we could do several things. (A) We could just destroy it. Hey, we pay farmers here in America not to grow stuff; it's not like we're not used to wasting money on agricultural decisions. (B) Use some of it for poppyseed bagels and legal opiate byproducts. (C) Give to old people as part of the Medicare prescription drug plan; no one will notice a few billion more dollars there. (D) Legalize it in America and resell it in ABC stores; make the money back in taxes! (Again, just making the devil's advocate argument here.)

My point is, this would accomplish both goals we have over there: supporting the locals, and keeping the terrorists from getting drug money. Logistically, it could work like this. Make farmers get a license to grow from the Karzai government. Promise top dollar -- let them experience capitalism. We'll price the Taliban out of the market. And then anyone without a license or selling to al Qaeda is fair game to be shut down. But if you've got a license, you know you're going to get paid. Over time, we can lower the number of licenses we grant and try to wean those farmers onto other crops or whatever. That, of course, would require years of "nation building" and U.S. A.I.D. and U.N. (especially) and, say Peace Corps invovlement, but it could be done.

The way Fitz-Hume describes it, based on his brother's first-hand observations, we're staring all this in the face and doing nothing. I'm sure a lot of folks would have a field day with news that the U.S. Government was going to start "buying drugs" in Afghanistan. But to make any headway, either against terrorism or drugs (and I'm not Bill Bennett crsuader here, and we're not doing enough on the demand side of the equation anyway), we're going to have to start being innovative in our approach. Why not hit the terrorists in the pocket book and prop us the locals at the same time?

UPDATE, late Sat. night: See this major article from page 1 of the Sunday Washington Post, explaining that al-Qaeda remains well-funded. Check out the opener:
Governments around the world are not enforcing global sanctions designed to stem the flow of money to al Qaeda and impede the business activity of the organization's financiers, allowing the terrorist network to retain formidable financial resources, according to U.S., European and U.N. investigators.

And this paragraph:
A report released this month by a U.N. panel of experts documented the continued flow of money -- including drug money -- to terrorist organizations and warned that al Qaeda "has already taken the decision to use chemical and biological weapons in their forthcoming attacks. The only constraint they are facing is the technical complexity to operate them properly and effectively" -- rather than a lack of means to acquire them.

We'll probably never be able to shut off the flow of money completely. But while we blame other countries for not enforcing financial sanctions, we should be doing what we can. I don't think the answer is simply dropping napalm on the poppy fields of Afghanistan. And maybe the answer isn't buying the poppy harvest before it gets to al Qaeda. But it's better than doing nothing, right?

Friday, December 12, 2003

Unconstitutional Consistency?
So I was reading a death penalty decision yesterday and saw something very interesting. It was an appeal from the district court's denial of habeas relief. To the extent that any capital case can be called “routine,” this one seemed to be. A guy went into a convenience store, demanded money, and shot the clerk. The whole thing was captured on the store’s security camera, and the killer was caught pretty quickly. He had committed a few other robberies before. There was testimony that he had suffered abuse as a child and became suicidally depressed after his marriage failed (not long before the murder). Oh, and one other thing: the guy is white.

Because the case was so open-and-shut, the defense attorney approached the prosecutor and offered that Dennis, the defendant, would plead guilty in exchange for the state taking the death penalty off the table. These kind of deals happen all the time. The prosecutor responded that she wouldn’t deal. And here’s her reason: Six months earlier she had prosecuted another capital murder case and didn’t offer a deal there.

A couple of points. The jurisdiction where these two murders occurred is small and doesn’t have many capital murder cases. The other one was somewhat similar -- also a robbery murder. In that case, two men abducted another and forced him to withdraw money from an ATM before killing him. One of the men pled guilty and testified against his accomplice, Daryl. Daryl is black.

Anyway, the prosecutor rejected Dennis’s deal, saying (this is undisputed) “she could not agree to give a white man a life sentence when she had just asked for and obtained a death sentence for a black man.” Her concern was that “someone might allege that he received special treatment only because he was white.”

I will leave aside the excruciating minutiae of habeas corpus law that prevented direct assessment of this claim. For those who know about that kind of thing, it was a procedural default/cause and prejudice analysis. But’s let’s assume that Dennis had preserved an objection to the prosecutor’s action and a court was faced with the issue directly. Did the prosecutor violate Dennis’s constitutional rights?

His claim was premised on the Equal Protection Clause; that he was treated differently than he otherwise should have been but for his race. The court basically said he perverted the meaning of the Equal Protection clause to complain about being treated the same, despite his race.

But really, isn’t it clear that the prosecutor took race into account here? She testified that she simply didn’t see much difference between the two cases and figured that if one was a death case, the other qualified as well. Both she and Dennis’s trial attorney testified that neither one of them took the conversation to be about race, and her statement was almost an afterthought. (Still, in a capital case a defense attorney ought to object to everything!) But the fact of the matter is that she did take Dennis’s race into her calculations, even if only slightly.

Now, consider what your answer would be if the events had taken place this way. Instead of Daryl’s case coming first, what if Dennis had committed his murder first? And the prosecutor had offered him a plea, which certainly would not have been irrational. Then, six months later, Daryl comes along. If she had proceeded to trail seeking a death sentence against Daryl, don’t you think someone would point out the racial difference there?

What if Daryl had gotten a plea but the prosecutor had gone to trial against Dennis like did? Wasn’t someone likely to say, in those circumstances, that she was being tougher on the white guy to avoid being called a racist?

My point is partly that she was in a no-win position, because regardless of how she dealt with these two killers, she opened herself up to charges of racism or reverse racism. (And I could go off on a long rant about how ridiculous proportionality review is.)

But my main point is this: Is consistency a good thing here? Can Dennis (in theory) state a constitutional claim based on the prosecutor’s actions? What about the Eighth Amendment? The Supreme Court said (in response to mandatory death sentences for capital murder convictions) that, just as it is “arbitrary and capricious” to treat similar cases differently, it is arbitrary to treat dissimilar cases the same way.

Now, granted, the two cases are similar to some degree. But a hallmark of post-Furman death penalty jurisprudence has been that each case demands an individual assessment of each defendant’s worthiness for the death penalty. And that worthiness should not turn on race.

I’m not in any way calling the prosecutor a racist here. These decisions ought to be the toughest a prosecutor has to make, and it appears that her decision was based almost entirely on the facts of the two cases. But if Dennis had been black, and she wasn’t worried about how the two prosecutions would be perceived, how much would that have increased Dennis’s chances for a deal?

It’s a tricky balancing act. There has to be some rationality to the decisions on which cases get charged as capital cases and which of those end up with death verdicts. But there has to be some individuality to it as well. Dennis will go to the execution chamber wondering how individualized his treatment was.

The road to Dushanbe
President Bush has said that "It's so important for Americans to know that the traffic in drugs finances the work of terror, sustaining terrorists, that terrorists use drug profits to fund their cells to commit acts of murder." Think tanks like Canada's Mackenzie Institute suggest that as much as 30% of funding for Islamic terrorist groups is derived from narcotics sales and the State Department has concluded that as much as 72% of the world's illicit opium is produced in Afghanistan. The link between the drug trade and the financing of terrorism is clear and success in the war on drugs would seem to have a direct effect on success in the war on terror. Imposing fiscal restraint on the Taliban and al-Qaeda (who reap significant financial gain from the opium fields of Afghanistan) is obviously a worthwhile objective. But the U.S. government's admonishment to pot-smoking hippies that "individual decisions about using drugs have real-world consequences" rings hollow in light of the Administration's failure to confront the drugs / terrorists relationship in Afghanistan.

My brother, a soldier with the U.S. Army's elite 10th Mountain Division, has been stationed in southern Afghanistan since August of this year. Among the several issues he has raised in his letters home (the main issue being "RPGs really suck") is that his unit is under direct orders to avoid confronting poppy farmers and traffickers. Poppy fields are not to be damaged and drug traffickers are allowed to pass through highway checkpoints unmolested and unsearched. The checkpoints are a principal means of searching for weapons and al-Qaeda fighters moving through the region, yet trucks carrying poppy are allowed to pass through without a second look. My brother's CO (commanding officer) explained that the reason for this hands-off policy is that the poppy fields provide the main source of income for the Afghan population and any effort to interdict the drug trade or destroy the poppy crops would result in an open revolt against the American-supported Karzai government.

I recognize that trade-offs like this are the stuff of foreign policy real politik, but for how long can such a policy square with reality that profits from the sale of Afghan heroin fund the very al-Qaeda and Taliban soldiers we are fighting in the war on terror? Why don't the "anti-drug" television ads mention that U.S. foreign policy decisions, like individual decisions about using drugs, have "real world consequences?" Do as I say, not as I do is sometimes a defensible position. Such a position should be acknowledged and explained, though, and I have yet to see any acknowledgement or explanation from the Administration. I am not holding my breath waiting for one either.

And you thought bloggers were nerds?
With just a little shame I will admit to our readers that I am 29 years old, married, a lawyer, and, yes, I play computer games. Really, I only play one computer game: StarCraft. Go ahead, make all the jokes you want, I have heard them all (Milbarge, for one, is relentless). At least I don't play Yahoo! games at work like some of my colleagues and I don't own 9 video game consoles like a friend of mine from law school. I just happen to enjoy the occasional game of galactic conquest (who doesn't?). Trust me, I am not obsessed with computer gaming - though my wife has expressed a contrary opinion.

Whatever my true level of interest in StarCraft, certainly I am not anywhere near as devoted to it as the people of South Korea. In South Korea, StarCraft is a national past time and skilled players are revered like rock stars or pro athletes. In fact, several people make a good living as StarCraft players. These "pros" (most of them teenagers) can make upwards of $30,000 per year in tournament winnings and endorsements. There are online tournaments through which players from all over the world compete for bids to go to South Korea and join professional teams. Three television stations in South Korea are devoted to 24-hour coverage of tournaments, players, and teams. All of the major championships are broadcast "live." The 2003 KPGA/OGN StarCraft championship drew a crowd of 25,000+ fans and paid out $30,000 in prize money to the winner. To quench your thirst for knowledge of the pro-gaming scene in Korea, go here, here, or here.

So playing StarCraft one night a week means I am "addicted?" I don't think so. I can quit any time I want. Someone with my broad range of interests just doesn't qualify as a computer-game nerd. I do lots of other things besides playing StarCraft. For example, I like travel, reading, and talking with friends. And I have never watched a "pro" game of StarCraft (or soccer for that matter). Probably never will.

Pennies and Pounds
No, this isn't a post about monetary policy or my position on the Euro. I was in the grocery store tonight, and I went to the deli counter to buy some turkey and cheese. I noticed something funny about how the attendant weighed out the food for both me and the guy before me. Clearly, after doing something like that for a while, you start to get a sense of how many slices of something equal how much weight. So, she slices up a bunch of whatever it is and throws it on the scale. Let's say it comes out to .97 pounds. So she goes back over to the slicer and shaves off another piece or two. Now when she weighs the stuff it comes to 1.03 pounds. She wraps it up and send you on your way.

Why do they always go over like that? Her second weighing was no closer to the exact weight I asked for. I wouldn't have complained if she had given me only .97 pounds (15.52 ounces) instead. Maybe some people would, but it's not as if you're paying the same price regardless and either you're getting shorted or they are. You pay for what you get, down to the fraction of a pound. I wonder if this is just her being a little off in her estimation of how many slices makes up the missing .03 pound (half an ounce, roughly).

I fear, however, it is company policy to always go a little over (it's a major chain grocery store). One reason for that would be to keep jerks from snapping, "Hey, I asked for a whole pound!" But think about how much money that .06 pound of turkey I got adds up to over time. My math (check me!) says, if a pound goes for $6.99, I paid 42 cents to get bumped up over the one-pound mark. Even if they only do that ten times a day (ridiculously conservative estimate; I saw it happen four times in five minutes), that's over $1500 a year. Do it 50 times a day, it's $7500. In that store alone. The chain has over 2500 grocery stores. My math says that adds up to over $19,000,000 a year in turkey I didn't ask for but bought anyway.

Thursday, December 11, 2003

We've Made It
Maybe Howard got ahold of some bad shellfish in the V.I. Only back one day, and not only does he link to BTQ, he blogrolls us -- and in mighty good company too!

The L,L,L guys will always be first in our hearts for being the first to blogroll us. But when I think of Bashman, I am reminded of the line in the classic defy-you-not-to-dance song by Arthur Conley/Otis Redding/Sam Cooke, Sweet Soul Music, about James Brown: "He's the King of 'em all, y'all!"

Hmm. I wonder if that's the first time Howard Bashman has ever been compared to Soul Brother #1? Anyway, thanks!

Apparently the Republicans are very, very excited that Howard Dean is running away with the Democratic nomination. In this article, someone cited as a "key Bush official" said that, "[t]he best thing Bush has going for him is that Dean is a weak Michael Dukakis. Dukakis won 10 states. Unless things turn very bad for Bush, I don't see Dean winning more than five." The source writes off California and New York and Vermont.

This is dumb. The Gore endorsement was Dean's first major attempt to start tacking back to the center (although I don't think he was as lefty as he was painted). I just find it unfathomable that all those "blue states" are going to go for Bush.

Now let me spin that a bit. I think a blowout is possible because Dean seems perfectly capable of shooting himself in the foot. But of course, as Michael Kinsley points out, Dean's most "impractical" move (opposing the war) is the one that worked out the best for him. And a lot of this depends on how you define "blowout." I think NRO's Ramesh Ponnuru may be on to something when he posits that, because of lower turnout and an overall closely divided nation, Bush might only get, say 53% of the vote, but compared to recent years that would be a blowout. Also, I think a lot of states will be close, but may end up going to Bush. The margin in the popular vote might not be huge, but the Electoral College margin might be wide -- although if Dean wins California and New York, it can't be too wide.

In sum, I think it's reckless at best for the Bushies to get overconfident now. William Kristol had a great line in this column warning Bush, and comparing him to the Oklahoma football team: "Saying you're not overconfident (as the OU players repeatedly did) is no substitute for really not being overconfident." And Team Bush isn't even saying they're not overconfident! This story in the Times notes that the GOP is already polling on the effects nominee Dean would have on Senate races. I think that's putting the cart well before the horse.

Look, in the end, Dean may well get beaten. But it is way, way too soon for the Republicans to break out the five-year paint on their West Wing offices.

Favorite Christmas Song?
I don't usually make a big deal out of Christmas. And, like most everyone else, I get a little tired of Christmas music well before the holidays are over. But, it's still early, and we haven't been inundated yet. So, partly to sort of take the pulse of BTQ's readers, but mostly to kill a little time and raise the comment count, I'm just wondering what your favorite Christmas songs are? Two categories: traditional, and non-traditional.

For me, the traditional song would probably be Good King Wenceslas or God Rest Ye Merry Gentlmen, although Adeste Fidelis is nice too, especially with organ accompaniment.

For "non-traditional," I have to go with Father Christmas by The Kinks and Christmas Wrapping, and early 1980s tune by The Waitresses. Both kind of cynical, but they have their moments. And they're catchy.

Anyway, let me know if I'm crazy here. I'll warn you now, though: I will delete any comments approving of "Grandma Got Run Over..." I won't even link to it I hate that song so much. Hey! That's the spirit of the season, no?

Buddy, Can You Spare a Dime?
I know that some of our loyal readers are big fans of Ronald Reagan, so I thought I would pass on three very interesting posts by Unlearned Hand over at En Banc: here, here, and here. Hand is "Blogging Reagan," trying to come to grips with the man and his legacy. He is starting, wisely, with a flattering biography, and will presumably then move to something more critical. (The title of this post, of course, refers to the drive to put Reagan's face on the dime.)

Reagan, to me, is kind of odd. I'm not really sure what was going on there. I took a political psychology class in college, and we spent a lot of time talking about all the problems Nixon and Clinton had, but those were obvious, outsized, identifiable if baffling. But with Reagan, no one's really sure if there was ever any "there" there. He apparently had so few friends that Edmund Morris had to invent one for him. He was famous for not even recognizing people very close to him (well before Alzheimer's). My favorite anecdote is how he confused Grover Cleveland (the president) with Grover Cleveland Alexander, the baseball player, whom Reagan portrayed in a movie. (This is a Tip O'Neill story, but I don't have a cite handy.) Ultimately, I guess I just don't "get" Reagan as a person or as a President. Kudos to hand for tackling the subject.

I have been mentally trying to compose a parody sitcom (are sitcoms even beneath parody?) called Everybody Loves Reagan. Good ole Reag' lives with his patient wife who is really the brains of the operation. The long-suffering sidekick is taller than Reag' but still lives in his shadow: George H.W. Bush. Across the street live the two wackos who started it all for Reag', Jeane Dixon and Bonzo. Anyway, that's as far as I got. I had trouble coming up with plot development, which some people think is a problem with the namesake show too.

Enough of my rambling. Go read what Hand has to say.

More BCRA Bickering
The title of this post is only even a mildy amusing pun if you pronounce "BCRA" as "bick-rah." As much I don't like the goofy pronouceable-acronym statutes we're getting these days, at least everyone knows how to say them.

Anyway, Rick Hasen has follow-up coverage on today's McConnell decision upholding most of the law here, here, here, here ("the big picture") and here. Will Baude has some thoughts here, here, and here. Eugene Volokh weighs in here and here. At En Banc, Unlearned sounds otherwise here, and Chris opines here. The Rice Grad, currently at Southern Appeal, mentions the case here, which I pass along mainly to note the calls for impeachments in the comments. Stuart Buck and Mr. P had pretty much the same overall thought I did, though. UPDATE: Howard is back from the V.I., and his first BCRA post is here, with lotsa links.

One thing I did find interesting that I doubt will get much play in all the discussion of election law is that a big chunk of the opinion (which the Chief Justice wrote) was based on jurisdictional grounds: the elected officials did not have standing to challenge a certain tv ad cost provision, and other plaintiffs did not have standing to challenge the so-called millionaire provision. I quickly scanned this section, and it's an interesting look at just how "imminent" an injury has to be. My very, very uninformed opinion is that, under Lujan, it ought to be enough for Sen, McConnell to say he is going to run again in 2008 and run ads critical of his opponents. What more can he do -- go ahead and try to buy tv time five years in advance? As for the millionaire thing, beats me.

I am no expert, and I have only skimmed the opinion so far. I don't want to get into any of the details here, but I am interested in campaign finance reform as a concept. At the very broadest level, I support it. But that's totally uncontroversial -- who wants corrupt politicians? But I am sympathetic to the views expressed by, among others, Justices Scalia and Thomas, and Judges Bork and Starr, that speech directed at affecting election outcomes is probably as close to the center of "core First Amendment values" as you can get. If, as Scalia said today, we let nude dancers and internet pornographers have their free speech, why not someone who wants to run a tv ad saying "Call Congressman Doe and tell him to stop kicking old ladies down the stairs!"

I believe in robust First Amendment speech rights -- I might go even farther than Justice Black would have. And, as Rick Hasen (who has always thought the law was consitutional) points out in his "big picture" post, it's troubling how easily the Supreme Court dismissed First Amendment arguments today. Part of me, though, wants to say, Who better than Congress to make necessary findings about the level of corruption (or appearance thereof) and the pervasiveness of money in modern campaigning? The courts? But isn't Congress just a little self-interested here?

So, I'm not sure where I come down in all this. I'll throw it open to our readers. Let's start out at a big-picture, meta- level: Should money be considered "speech" at all? Even if it is, we regulate speech in all sorts of contexts -- why not here? Commercial speech can't be misleading; isn't it more important to make sure an election for Congress is transparently unpolluted than it is to police a vacuum cleaner ad? If you think this law is unconstitutional, is there any regulation short of a ban on the outright buying of votes that you would support? Where's the line for you?

Wednesday, December 10, 2003

Doggone It, People Like Us
Sorry for the light posting lately. Fitz has been very sick, and I have been trying to do some real work. I feel especially bad about it because I just got finished gently poking fun at Howard Bashman for leaving me in the lurch. It's kind of scary how often I'm on his site.

So, a few belated thank-yous. First, to Scott at Life, Law, Libido, first for telling people to visit here, then for mentioning us again, and finally, for blogrolling us! As far as I know, that's the first for us, and we're honored. And it's pretty high, too – although that may not mean anything; ours isn't terribly organized yet. Fitz emailed me to let me know, and I scrolled to the bottom of their list, not even imagining how far up I'd have to read to find it. Thanks, guys! And to anyone visiting from their site, welcome. And if you're one of those girls they have pictures of on their page, I'm single.

Also, hello to anyone coming from Jeremy Blachman's "Average Joe" post at En Banc. And truly, wherever you’re coming from, we're glad to have you. This started as an easy way for us to send rants to our friends, and now we're getting hits from all over. It's pretty cool. Oh, but if you got here by googling "jason average joe melana gay -tiner," sorry, can't help you there. And did I hear a "-tiner" in there? Were you googling from a walkie-talkie?

Finally, thanks to Will Baude for correctly pegging me as "elusive." Now that I know people are checking in, I feel a lot of pressure to perform, and to be less elusive in the future. Feel free to let us know how we're doing!

And, because it may be the only way to shake it, the song stuck in my head right now is David Bowie's "Young Americans."

It looks like most of the challenged provisions in the McCain-Feingold campaign finance law were upheld today by the Supreme Court. This is huge, huge -- and Al Gore won't be in the news for a while now. Rick Hasen will have the scoop; see here for the first of what is sure to be many posts. I'll be back later.

Tuesday, December 09, 2003

I've been thinking about Gore endorsing Dean and am working on writing something about it. I'll get it out later on today. In the meantime, your thoughts are appreciated. Thanks.

Monday, December 08, 2003

Picking Up Howard's Slack Again
Today is the 50th anniversary of the oral argument in Brown v. Board of Education. NPR has been presenting several stories about the case, including interviews with some famous folks involved in the case, and behind-the-scenes glimpses of the Court's deliberations. You can access the stories here. (So far, they're pretty interesting.)

Fourth Circuit Says Ray-Loopa Is Soopa-Doopa
Since Howard Bashman is suffering in St. Croix, I'll mention a big appellate case to come down today. The Fourth Circuit upheld the constitutionality of part of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) in an opinion written by Judge Wilkinson you can access here. The act was passed back in the days before international terrorism gave us pronounceable statute acronyms. Most people pronounce it "Ray-loopa," or, for us slack-jawed hill people, "Ruh-loopa." It is a follow-up to the old Religious Freedom Restoration Act (RFRA, or "riff-ra"). (Hmmm...maybe we should have used "Riffra and Rayloopa" as our pseudonyms -- all we would need is a Human Beat Box.)

Anyway, enough silliness. The basic thrust of the act is to protect the free exercise rights of prisoners. Congress found that, absent Congressional action, religious people in prison would be substantially burdened in the exercise of their rights. Well, that's certainly how Ira Madison, a Virginia prisoner, felt. He wanted to eat a kosher diet due to his conversion to some kind of Hebraic sect in prison. Local prison officials went along with it, but the powers in Richmond disapproved the request, because (1) they thought he had sufficient alternatives within the ordinary menus; (2) they doubted the sincerity of his beliefs; and (3) he had apparently had some disciplinary problems in the past. To me, that sounds like the kind of burden Congress had in mind.

So, Madison sued. The district court found the act to be an unconstitutional establishment of religion. Specifically, the district court decided that the act "impermissibly advanced religion by offering greater legislative protection to the religious rights of prisoners than to other fundamental rights that were similarly burdened." (all quotes from the 4th Cir. opinion) Today, the Fourth Circuit reversed.

I am not going to discuss here the myriad other issues presented by this case, but I want to point them out. Part of the reason the Supreme Court struck down the RFRA in Boerne v. Flores (I was at the Court that day, by the way) was that it went beyond the scope of what Congress could do pursuant to its Fourteenth Amendment, section 5 powers. So in passing RLUIPA, Congress cited its powers under the Spending and Commerce Clause. The Fourth Circuit did not decide whether it has such power under those clauses. Also, Virginia challenged the law on Tenth and Eleventh Amendment grounds, but the court did not address those either. It will be up to the district court to look at those in the first instance now. I should also say that several other challenges to the law are percolating in the courts (the opinion cites them), and a split of authority is developing. I would love to find time to address those issues in some detail later.

Anyway, does any of this sound familiar? A few days ago, I was talking here and here about the Locke v. Davey case, currently before the Supreme Court. There, the establishment and free exercise clauses are butting heads. Today Judge Wilkinson (on everybody's Supreme Court short list) came down squarely on the side of the accommodation principle: that the Government can lift burdens (selectively) on the exercise of religion and shouldn't have to worry about clamors for burdens to be lifted from the exercise of other rights (like free speech or whatnot).

Adopting the state's position, Wilkinson says, would mean that "Congress would have to make determinations in every instance of what fundamental rights are at risk and to what degree they are at risk, and it would be able only to heighten protection for fundamental rights in a symmetric fashion according to these assessments. The byzantine complexities that such compliance would entail would likely cripple government at all levels from providing any fundamental rights with protection above the Constitution's minimum requirements."

Citing a 1992 case holding that neutral laws are ok even if they have the effect of burdening religious practice (Smith -- peyote case), Wilkinson writes, "Our society has a long history of accommodation with respect to matters of belief and conscience. If Americans may not set their beliefs above the law, there must be room to accommodate belief and faith within the law."

That's nice law-talkin' and all, but this case is sort of the inverse of Locke. The Fourth Circuit's decision followed the Lemon test to get to its result, and I don't think it cited the voucher case, but it tracked that principle. As Justice Ginsburg noted last week, "We know we can give funding to religious schools if we want to...." Likewise, Wilkinson says, we know Congress can give Ira his kosher meal if it wants to. But is it required to under the free exercise clause?

A great deal of my work involves prisoner litigation, so I sometimes think of constitutional cases through that lens. If Davey wins, and the Supreme Court recognizes a free exercise right to equal access to the Washington scholarship program, what sorts of free exercise claims will prisoners seek in civil rights suits? And, in the Fourth and a few other circuits, they can cite RLUIPA, too.

I really really hope to write soon about the other issues popping up here, especially the Eleventh Amendment sovereign immunity issue. Can Virginia claim that its sovereign immunity exempts it from granting Ira his free exercise rights? More strategically, can it claim the establishment clause as a sword (RLUIPA is bad because it would make us violate the establishment clause) while at the same time using the Eleventh Amendment as a shield against a free exercise claim? (Or wait...are they both shields?....well, you get the idea.) And is any of this kosher after Lopez and Morrison? If not, can the Spending Clause save everything? Stay tuned....

If You Read This Blog, I Will Bring Back the Sun
A very warm thank-you to Mr. P for his nice comments about BTQ. Don't let me stop you from going over there, but I can't resist quoting him: "You should be reading Begging the Question, since they have had several good posts lately."

When Mr. P talks, people listen, and it means a lot that he thinks so much of our fledgling little enterprise. I like to think we lured him in with the psuedomyns, but he keeps coming back for the posts.

And to anyone who comes here based on his recommendation, welcome! As you can see, we're just getting off the ground, and we're still trying to keep the blog from turning into a Radical Vertical Impact Simulation (what part of that was "simulated," by the way?). But we appreciate your patronage. Enjoy!

Can Week Again
When I was in law school, we had this deal where, one week per semester, students could bring in a canned food item and receive immunity from being called on in class. Over the years, I gave a lot of food to needy people just so I didn't have to read for class.

Well, clicking here won't keep you from having to work, but for every visit, Campbell's is donating soup to hunger relief charities. To encourage participation, you make your "donation" by voting for your favorite NFL team. If you don't have one, just pick anybody. (They also make you fill in a little box with the displayed word to foil spammers and auto-voters, but that takes about three seconds.)

Thanks, folks!

I saw here that for the first time, applications to medical school by women outnumbered those by men. This has been the case in law school for a couple of years.

I just found this interesting, and wanted to point it out. I didn't want to make it into fodder for a rant, or to raise any hackles, but this makes me think of my arguments over the affirmative action cases back in the summer. I think that one of the strongest arguments for affirmative action in graduate schools is that it is a social good (a compelling state interest, even) to have a certain quanta of minority professionals. I think it's a bad thing if a state has virtually no black or hispanic doctors or dentists or lawyers or whatever. I'm not trying to encourage or promote any conspiracy theories that some minorities might have about the white establishment. I don't really have time to get into all the reasons. But, to take an example, it's bad for society if black people won't go to the doctor because the only doctors in town are white. And there is at least some probability that a minority doctor will be more likely to go into an underserved community.

Anyway, we have now reached a point where the number of female applicants for law school and medical school is in proportion to their number in the overall population. But we can't forget that this is partly a result of efforts in the courts to create opportunities for women. I share Justice O'Connor's hope that twenty-five years from now, we'll see stories that minority applications to law school and medical school are proportionate to the minority population.

Shelling Out
I was reading a review of a new restaurant that opened in my city. It styles itself as a "lobster and steak house," or a "steak and lobster house," I can't remember which. The reviewer noted that the lobster was selling that day for $28 per pound. That's bad enough, but she also noted that the smallest lobster they had available -- the smallest -- was six pounds! That comes to $168 for the tiniest crawdad they've got. Un-freakin-believeable. Sorry to break your hearts, but none of my friends will be getting gift certificates from this place for Christmas.

Kerry Says a Dirty Word
I almost missed this non-story. In an interview with Rolling Stone, Democratic presidential candidate John Kerry discusses his position on authorizing the use of force in Iraq and Howard Dean's position:

Q: Did you feel you were blindsided by Dean's success?

A: Well, not blindsided. I mean, when I voted for the war, I voted for what I thought was best for the country. Did I expect Howard Dean to go off to the left and say, "I'm against everything"? Sure. Did I expect George Bush to f--- it up as badly as he did? I don't think anybody did. (edit mine)

So now conservatives are upset about this. The New York Post called it "an X-rated attack at President Bush," even though you can say the f-word in a PG-13 movie. White House Chief of Staff Andy Card called it "beneath" John Kerry and "disappointing." Kerry's defense is basically "Sailors use salty language."

I am of the opinion that nothing can help John Kerry now, even if this was calculated as an attempt to paint himself as being as angry as Dean. But I'll leave all that aside. What I want to see is somebody point out that the Bushies should be the last folks to get on a high horse about language.

Does anybody remember Bush, during the 2000 campaign, calling New York Times reporter Adam Clymer a "major league asshole"?! I do, "big time." And at the end of this article I saw this nice anecdote:

Though he's done a decent job of hiding it in this election cycle, Bush has been known to use salty language. At the Republican National Convention in 1988, he was asked by a Hartford Courant reporter about what he and his father talked about when they weren't talking about politics.

"P----," Bush replied. (again, edit mine, and the word isn't "pants," although that's close...)

Anyway, what a stupid, piddly, little nothing of a story. But this is what passes for political discourse these days. Oh well, f--- it.

UPDATE, Monday noonish: The New Republic has been running a "primary" in which they grade the candidates on various things. They have given Kerry an "A" in the "General Likeability" category for his f-bomb.

UPDATE, Tuesday a.m.: According to the last item in this dispatch from Slate, Kerry is now cursing at almost every opportunity. No more f-bombs (yet), but several references to "kicking ass." I can just see the inaugural now: "Ask not whose ass your country can kick, ask who you can f--- up for your country!"

Greatest Hits
"Greatest Hits collections are for housewives and little girls." -- Bruce McCulloch

And guys like me who are too tech-stupid and lazy to burn their own. Last week I bought three greatest hits CDs. I wasn't even really meaning to. I was in Best Buy and wandered into the CD section. I didn't even know that one of these albums existed, but all three were from bands I liked but didn't have any CDs of. All the songs I liked were on two of them, and the third had most of them (I liked all the ones on there, but there were a couple I wished had been included).

I was retro before retro was cool. And that was before it got lame and then got cool again! I still make mix tapes (as in cassette tapes) to listen to in my car. My cell phone is large and heavy and doesn't have anything that flips open. I've always been late to the high-tech party. I took a rotary-dial phone to college, and immediately had to buy a new phone because my school did all its class registration via touch-tone phone. I still have that phone, by the way. The first stereo I ever bought had a record player on it. I don't have a TiVo or a dvd player.

But I'm trying to drag myself into the digital age. I don't want to be a housewife or little girl anymore. I want to violate my own copyrights. (Hey -- if those artists want money, the should put out some new material instead of killing time with greatest hits packages!) I don't like the looks I get when I rent VHS tapes -- it's like they must have looked at BetaMax folks twenty years ago. Plus, the selection sucks.

So, I'm thinking about finally getting a dvd player and upgrading my computer, although I may just get an external burner and hold off on a new computer for another year or so. Any advice is hereby solicited. I'm keeping the tape player in my car, though.

[Aside: Writing this post made me think of the fun word retronym. An example from the post is "rotary phone." It used to just be a "phone," until they came out with buttons on phones. Other examples are "black and white television" and "acousitc guitar." We had to come up with a new way of describing an old thing. I saw a reference to "film cameras," which would have sounded stupidly redundant only a few years ago, before digital cameras. This is an interesting phenomenon, our eagerness to adopt new technology as the standard (in language, too) and to use the simplest word possible to express a thought. I wonder if we will ever refer to email simply as "mail," and call everything else "snail mail." My guess is no, but only because "email" is so easy to say. If it was as cumbersome as "color television" or "electric guitar," I'd say maybe. How long before "camera" refers only to the digital kind?]

Sunday, December 07, 2003

Wide Open Spaces
The New York Times ran an interesting series last week about "the emptying Great Plains." There are three stories here, here, and here, plus a neat "interactive" feature where you can listen to some of the subjects of the story speak. (The Times requires a registration to read stuff, and even then they archive stuff after a week or something, so act fast. I have the full text of these articles if you would like them, though.)

I grew up in a pretty rural area, but it's still hard to imagine such a huge area of the country basically empty. There's a story about a company in Kansas that lays telepone and high-speed internet cable out in the middle of nowhere. (That "universal service fee" on your phone bill subsidizes this.) He said they have something like two people per square mile out there. With the rise of Big Agra, and the departure of manufacturing, there's just no one there anymore.

I'm not going to spin out the electoral map (red state/blue state) ramifications of this, although they exist. And I'm not going to lament the loss of "a way of life," for two reasons. One, I don't have any room to talk, because I'm sure not going back home either. And two, these things happen; times change. I guess what's interesting to me is how we were supposed to have this wired (and now wireless), satellite, videoconference, computer-driven world that was going to make it just as easy to be in Nowhere, Nebraska as NYC. I didn't really have much of a point here, I just thought the stories were well done. I'm just going to blame it all on NAFTA and the U.N. like everything else.

R.I.P., A.U.S.A.
In case you hadn’t heard, there’s this really awful story about a man named Jonathan Luna, who was an Assistant U.S. Attorney in Maryland. Last week, for reasons that are still unknown, he left his Baltimore office and ended up dead in Lancaster, Pennsylvania. Howard Bashman at "How Appealing" has been all over this story, with posts here, here, here, and here, just in last day or so. The short version is that Luna was stabbed many times and drowned in a river.

As of now, it doesn’t look like the murder was connected to any of Luna’s cases, but instead might have been because of something personal going on in his life. What that means, I have no idea. It’s obviously a tragedy for Luna’s family (he had two small kids), and I’m sure it has really shaken up that office.

I worked one summer in a U.S. Attorney’s office, although not in that district. On our first day, they showed us news clippings about shoot-outs in the courthouse and witnesses being killed to prevent them from testifying. It’s been a few years, and right now I don’t remember if an attorney from that office had ever been killed. Not to be melodramatic about it, but they made it very clear that we were dealing with dangerous criminals who might be willing to kill to keep from going to prison. The people who deal with that in person (and I’m including most defense attorneys here too, because they get even closer, and judges too) are brave folks. One reason I don’t want to do that kind of thing is that I prefer to keep it all nice and academic and theoretical, and quite frankly, I prefer not having to deal with people in those situations.

Anyway, it doesn’t look like Luna’s killing was because of his work, but that’s probably not because there aren’t any criminals out there who wanted to kill him – he was a prosecutor in New York City before he came to Maryland. I’m not trying to make him into a hero, because he was just a regular guy who did a tough job. But apparently he was good at it, and it’s a shame something in his life got so screwed up. Here’s hoping they figure it out.

Thinking and Looking
"Thinking is more interesting than knowing, but less interesting than looking." -- Goethe.

Lest I seem pretentious, and in case any of you had any doubts, I don't read Goethe. Especially not at this time of day/night. But I liked the quote, and hadn't posted anything in a while.

I saw it on "Stay of Execution" a blog by a bankruptcy lawyer in Maine. (That's a good blog, by the way; my favorite post is this one -- oh, and this one, where I found out where we got the term "boilerplate.")

I've been spending even more time than usual lately looking at other blogs, to get a sense of what I like and what I don't. I'm not specifically trying to emulate anyone else's style here, but it's nice to see the variety out there and get some ideas.

Anyway, I'm going to go do some more looking.

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