Wednesday, April 30, 2008

Good Job, Congress

The lead story on washingtonpost.com right now is about how Congressionally-imposed ethanol mandates have succeeded in helping cause a rapid increase in the price of food while making little difference in the price of gas.  A portion of the article:

And it [the surging use of ethanol] has linked food and fuel prices just as oil is rising to new records, pulling up the price of anything that can be poured into a gasoline tank. "The price of grain is now directly tied to the price of oil," says Lester Brown, president of Earth Policy Institute, a Washington research group. "We used to have a grain economy and a fuel economy. But now they're beginning to fuse."

Not everyone thinks it's fantastic. People who use corn to feed cattle, hogs and chickens are being squeezed by high corn prices. On Monday, Tyson Foods reported its first loss in six quarters and said that its corn and soybean costs would increase by $600 million this year. Those who are able, such as egg producers, are passing those high corn costs along to consumers. The wholesale price of eggs in the first quarter soared 40 percent from a year earlier, according to the Agriculture Department. Meanwhile, retail prices of countless food items, from cereal to sodas to salad dressing, are being nudged upward by more expensive ingredients such as corn syrup and cornstarch.

McCain is one of the few major politicians who has (relatively) consistently opposed our disastrous ethanol policy.  Will he have the political courage to stand on that opposition --and thus stand up to the farm lobbies-- in this election year?  We'll see.

Monday, April 28, 2008

Video of Justice Scalia on 60 Minutes

CBS News has the full segment of Justice Scalia's interview with 60 Minutes up.  The two parts are embedded below, and combined run about 27 minutes.  Highlights include some info about Scalia's rarely- discussed personal background and a very interesting look at his friendship with Justice Ginsburg.

Part One:

 

Part Two:

Something I Hadn't Realized

According to uber-pundit Michael Barone, Hillary's margin of victory in Pennsylvania has propelled her past Obama in the popular vote count.  Barone apparently includes the Michigan results in his calculations (which is a little questionable because, of course, Obama's name wasn't on the ballot there), but it's an interesting milestone nevertheless. 

Sunday, April 27, 2008

More Important Than Policy

Note:  The following is a guest perspective that our very learned friend Alex offered up in a comments section to a recent post.  I'm reposting it on the main page because it contains some really well-stated and well-explored insights about how we ought to think about the process of choosing a President.  Nicely done, Alex.

 

Recently, ABC has received a substantial amount of criticism for its handling of the recent Democratic debate. While some commentators have risen to its defense, the consensus seems to be that ABC focused on political “process” questions or trivialities to the exclusion of policy issues.

While some of the criticism of ABC’s questioning is probably legitimate, the “not enough policy questions” criticism is based on a misconception: namely, the misconception that policy questions can or should be fruitfully addressed in such a forum.

Of what value is a candidate’s 30 second (or even 30 minute) discussion of, say, tax or defense policy? Tax and defense are hugely complicated areas of law with often contradictory policy goals (e.g., for tax, to fund desired social programs while at the same time decreasing tax burdens). These subjects are debated intensely by specialists without the emergence of a clear and enduring policy preference. The candidates themselves are not even close to being experts on the subjects. Are Senators Clinton or Obama, or McCain for that matter, intimately familiar with the key data involved in such policy fields? The answer is no, they’re not and they shouldn’t be. Politicians are generalists. The actual work of formulating the details of tax or defense policy, and ultimately legislation, is done by buildings full of specialist bureaucrats after consultation with experts, lawyers and so on. We inevitably hear from candidates only vague promises buttressed by platitudes and tautologies. Even the most detailed campaign proposals can address only a small portion of the larger policy field. Such fragments of detail only highlight obvious retorts, crying out for an extended policy discussion that few people are willing to endure, much less broadcast.

Moreover, even if a candidate could formulate and present a comprehensive policy on a given subject, it is unrealistic to expect that such a policy could be implemented as formulated. Once introduced as a legislative proposal, the precise terms and proposals face near certain amendment, if not outright legislative death. Although the last few executives have seized the policy bully pulpit, Congress writes the laws that implement the policy, and neither party’s candidates should expect cooperation on policy issues that run deeply counter to the other party’s platform (health care mandates, the war in Iraq, etc.).

Yet, even assuming a cooperative Congress, there is no guarantee that a candidate’s policy statements will find implementation in the future. Our system is one of institutions and institutional actors, constrained by the inertia of the civic process and logic of events. If Iran obtains and threatens to use nuclear weapons, for example, the possible responses will constrain any executive. In the face of unexpected but unavoidable facts, any contrary policy hopes will have to be sacrificed.

If this line of reasoning is sound, then it pointless to spend time asking candidates detailed policy questions because they won’t be able to provide a cogent and comprehensive answer, and it is unlikely that they will be able to implement any proposals they do make. What, then, is a debate moderator to ask?

If candidates can’t address specific policy issues in a worthwhile way, they can at least articulate keys to their political philosophy – the fundamental principles from which specific policy positions issue forth. Unfortunately, neither the candidates nor the public are likely to endure any in depth discussion of political philosophy. There will be some discussion about the role of government at home and abroad, but there won’t be much beyond that.

There is, however, perhaps an even more fundamental wellspring for a candidate’s specific proposals, one, in fact, that can be presented almost instantly while at the same time capturing the public’s interest: a candidate’s character. What sort of person a candidate is will determine what that candidate believes, or what he or she should believe. This view of things is perhaps somewhat naive. It doesn’t take into account the skill with which politicians parse their answers and manage and manipulate their public image. Nevertheless, character issues resonate with the voting public. A person’s character is something he or she can change, but only with great effort. There are no shortcuts, and one can’t avoid displaying one’s character, faults and all, in the basic process of human interaction.

That is why questions concerning Senator Obama’s religious affiliations, for example, have endured: people want to know how he will react to such an obviously human situation of conflicted loyalties and interest. Senator Obama, early on, acquitted himself well with regard to the Rev. Wright issue. He genuinely distanced himself from Rev. Wright’s deplorable comments, while at the same time preserving a personal connection reflecting the Senator’s familiar and understandable connection to some a person so prominent in his life history. However, there is a fine line, and coverage of the story soon crossed it. The media or parts thereof, turned a legitimate but properly minor story into a distorted human-interest frenzy that obscured the relevant demonstrations of character.

Contrast Senator Clinton’s shamefully handled sniper stories. In the face of such telling character flaws – the desperate need to self-promote at the expense of the truth – her alleged policy experience, meaningless in the face of any candidate’s fundamental ignorance and institutional impotence, should count for little.

Admittedly, emphasis on character is an old-fashioned if not moralistic way to view political candidacies, and people generally. Nevertheless, when policy statements are designed to maximize general appeal and minimize serious discussion, the traits that determine policy statements are the next best thing. That’s why, in presidential candidates, character is more important that policy

Friday, April 25, 2008

The Apocalypse is Near

All the bad states are trying to get nuclear weapons, food prices are skyrocketing, and media-hating Justice Scalia has sat for a interview to be broadcast on national television.  Granted, the interview with 60 Minutes is in part to promote his new book on legal writing (co-authored by Bryan Garner), but still....

As for what Scalia actually said, we'll find out when the interview airs this Sunday, but here's a clip that CBS has made available of him dismissive defending Bush v. Gore:

 

A Word for My Law Firm Readership on a Sunny Friday Afternoon

An old simile, but a good one:

"Becoming a partner is a decision, not a reward.  . . .  Becoming a partner in a law firm is like winning a pie-eating contest where the prize is more pie."

 

(Hat tip: Adam White at Convictions (Slate's legal blog).)

Tuesday, April 22, 2008

An Important Decision from a Fine Judge

From the AP today:

CHARLESTON, W.Va. (AP) _ A federal judge has blocked West Virginia election officials from enforcing several disclosure rules governing political advertising, agreeing with an advocacy group that they are too vague.

U.S. District Judge David Faber partly granted the preliminary injunction sought by the Center for Individual Freedom, which seeks to run ads in the state Supreme Court race before the May 13 primary.

Another Bad Day for McCain-Feingold

Today the Supreme Court heard argument in Davis v. FEC.  The case involves a challenge to the so-called Millionaire's Amendment portion of McCain-Feingold.  The Amendment, as you'll recall, imposes additional campaign finance disclosure requirements on candidates for House and Senate who spend lots of their own money in a race and eases fundraising restrictions on their opponents (who, in practice, are usually incumbent Congressmen and Senators).  SCOTUSblog has a nice analysis of the argument here.  Though I haven't read the argument transcript yet, it seems that a majority of the Justices expressed serious doubts about the constitutionality of various provisions of the Amendment.

The SCOTUSblog writer expresses near-shock at the Justices' reaction; apparently prior to today's argument most commentators thought that the challenge --grounded, of course, in the First Amendment -- was a longshot.  (At the risk of being insufficiently humble, allow me to quickly point out that I offered a different prediction when cert was granted.)  More on Davis (and some long-promised broader thoughts on campaign finance regulation) after I get a chance to read the transcript.

Monday, April 21, 2008

Hillary Lives

At least through tomorrow's Pennsylvania primary, if certain indicators are correct.  For instance, Drudge says that Hillary's internal polling numbers have her ahead by double digits.  Even if that plays out, she'll still need an Obama collapse to win the nomination, but (much to the delight of Republicans everywhere) she will still be in the fight and  -- through her criticisms-- laying the groundwork for GOP attacks on Obama in the fall.

Sunday, April 20, 2008

Making the Rounds

You may have already read the much talked-about piece from Politico writers John Harris and Jim Vandehei taking the media to task for its fawning coverage of Obama and defending the ABC news anchors who were impudent enough to actually ask him some confrontational questions in last week's Democratic debate.  If not, see here.

By the way, sorry about the lack of posts over the last few days.  I shall endeavor to get back to a more normal rhythm this week.

Posner on "How Judges Think"

The latest book from the brilliant and preternaturally productive Judge Posner is entitled How Judges Think.  The goal of Posner's effort is, in his own words, to provide a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases."  For an in-depth and rather negative review of the book by commentator Ed Whelan see here  (the review is actually a compilation of some of Whelan's posts on Benchmemos, so if by chance you've read those you know his arguments).

Wednesday, April 16, 2008

Baze: Nine Justices, Seven Opinions, Three Standards, and A Huge Mess

Today was death penalty day at the Court, with the Justices handing down their decision in Baze v. Rees and hearing argument in  Kennedy v. Louisiana (which I'll discuss in a later post).  In Baze, as you'll recall, the Court was confronted with the question of whether the standard three-drug lethal injection protocol -- the first drug given is an anesthetic, the second and third paralyze breathing and stop the heart, respectively -- imposes cruel and unusual punishment because alternative lethal-injection methods are available that would significantly reduce the risk of severe pain  On one hand, the result announced today is clear enough: seven justices voted to uphold the protocol.  Unfortunately, the reasoning used by the members of the Court was extraordinarily fractured.  Allow me to (very) briefly summarize what each of the opinions argued:

-  Chief Justice Roberts, joined by Justices Kennedy and Alito, argued that a state's refusal to adopt an alternative method of execution that is less likely to inflict severe pain can violate the Cruel and Unusual Punishments Clause, but only if the alternative procedure is  "feasible, readily implemented, and in fact significantly
reduce[s] a substantial risk of severe pain," and the state refuses to adopt the alternate method "without a legitimate penological
justification for adhering to its current method of execution."  Roberts, Kennedy, and Alito concluded that Kentucky's three-drug protocol does not cause a substantial risk of severe pain.

-  Justice Thomas, joined by Justice Scalia, concurring only in the judgment, rejected the majority's standard, arguing that under the original meaning of the Cruel and Unusual Punishments Clause only intentional infliction of severe pain during execution is barred.

-  Justice Ginsburg, joined by Justice Breyer, dissenting, argued that a method is cruel if it creates "untoward, readily avoidable risk of inflicting severe and unnecessary pain" without regard to whether the risk is substantial, and would have remanded for Kentucky courts to address that question.

-  Justice Stevens wrote that the Court should again directly take up the question of whether capital punishment is constitutional, and offered his opinion that it is not.  However, he accepted that it is constitutional under current law and, without adopting any of the standards discussed above, summarily concluded that Kentucky's method had not been proven cruel (thus concurring in the result).

-  Justice Breyer expressed his agreement with the standards formulated in the Ginsburg-Souter opinion, but also said that "the legal merits of the kind of claim presented must inevitably turn not
so much upon the wording of an intermediate standard of
review as upon facts and evidence."  Applying his "we don't need no freaking standards" view, Justice Breyer concluded that Kentucky's lethal-injection scheme had not been proven cruel and concurred in the judgment.

- Justice Scalia wrote a separate opinion to slam Justice Stevens's view that the death penalty is unconstitutional.

- Justice Alito wrote a separate opinion to defend the Roberts-Kennedy-Alito opinion both from attacks mounted in the Stevens opinion and (at the other end of the spectrum) criticisms in the Thomas-Scalia opinion.

 

The import of all this?  Lower court judges across the nation will be cursing Baze until the Court comes out with a more unified discussion of the appropriate standards, which may be quite a while indeed.

On the upside for our purposes, though, Justice Scalia's separate opinion does contain a classic Scaliaesqe passage eviscerating Justice Stevens' view that capital punishment is unconstitutional:

As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth
Amendment
.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536
U. S. 304, 312 (2002); emphasis added; some internal
quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of
the death penalty” is unconstitutional. Ante, at 17 (emphasis
added).
Purer expression cannot be found of the principle of rule
by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little
consequence. The experience of the state legislatures and
the Congress—who retain the death penalty as a form of
punishment—is dismissed as “the product of habit and
inattention rather than an acceptable deliberative process.”
Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is
relegated to a footnote. Ante, at 10, n. 13. The experience
of fellow citizens who support the death penalty is described,
with only the most thinly veiled condemnation, as
stemming from a “thirst for vengeance.” Ante, at 11. It is
JUSTICE STEVENS’ experience that reigns over all.

 

Update/Corrections:  Edited post for clarity and to excise grammatical errors.

Monday, April 14, 2008

Production of Biofuels "A Crime Against Humanity"

So said UN Special Rapporteur for the Right to Food Jean Ziegler today.  I'm not sure I'd go that far, but there's little doubt that biofuel mandates in the U.S. and the E.U. have been a major driver of food price inflation around the world, resulting in greater hunger and outbreaks of riots in a number of third world nations.  As the head of Nestle, the world's biggest food company, put it last month:  "[T]o grant enormous subsidies for biofuel production is morally unacceptable and irresponsible.  There will be nothing left to eat." 

But it's not just poor countries that are feeling the effects.  We also heard today that in the last year U.S. food prices increased at a rate not seen since the early 80's.

But you'll be happy to know, I'm sure, that Congress is on the case, working on a new farm bill that gives help to those who need it most:

But farmers, now enjoying record prices and profits, would also be big winners. Benefits included in the expiring 2002 farm bill--broadly criticized by fiscal conservatives as unduly generous--would be kept largely intact. The House proposal, for example, guarantees farmers $52 billion in automatic payments over the next 10 years even if prices stay high. As the 2006 Post series showed, farmers receive these payments even if they are not growing crops.

Farm state lawmakers have balked at stopping the twice-yearly checks even though they were supposed to phase out after 2002.

Saturday, April 12, 2008

The Basics of Interpretation

I was searching for some articles on the canons of construction the other day and came across this nifty work.  It's a very useful primer from the Congressional Research Service (circa 2006) on the canons and presumptions of textual interpretation used, historically and recently, by the Supreme Court.  Aside from actually listing the canons and presumptions, it explains the origins of most of them quite well (and succinctly) and cites at least one modern one case where each has been discussed by the Court. It's about fifty pages, but I've (rather sloppily) copied the Table of Contents below so you can feel free to skip directly to what interests you most.  (If going by the pdf file page number instead of the article page number add five pages to the numbers listed below to find the section you're looking for.)

 

Statutory Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
In General — Statutory Context and Purpose . . . . . . . .  . . . . . . . 2


Canons of Construction . . . . . . . . . . . . . . . . . .  . . . . . .  4

In General . . . . . .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ordinary and Specialized Meaning . . . . . . . . . . . . . . . . . . . . . . 5
Terms of art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Ordinary meaning and dictionary definitions . . . . . . . . . . . . . . . . 6
And/or . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .  . 8
Definite/indefinite article . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . 8
Shall/may . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Singular/plural . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
General, Specific, and Associated Words . . . . . . . . . . . . . . . . 10
Grammatical Rules, Punctuation . . . . . . . . . . . . . . . . . . . . . . . . 10
Statutory Language Not to be Construed as “Mere Surplusage” . . 12
Same Phrasing in Same or Related Statutes . . . . . .. .  . . . . . . 13
Different Phrasings in Same Statute . . . . . . . . . . . . . .. . . . . . . . 14
“Congress Knows How to Say ...” . . . . . . . . . . . . .. . . . . . . . . 15
Statutory Silence . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 16
De Minimis Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


Overriding Presumptions . . . . . . . . . . . . . . . .  . . . . . . . . . . . 17
Departure from Common Law or Established Interpretation . .. . 18
Displacing State Law, Impinging on State Operations . . . . .  . . . 18
Abrogation of States’ Eleventh Amendment Immunity . . . . . 19
Nationwide Application of Federal Law . . . . . . . . . . . . . . . . . 20
Waiver of Sovereign Immunity . . . . . . . . . .. . . . . . . . . .  . . . . 20
Non-retroactivity / Effective Date . . . . . . . . . . . . . . . . . . . . . 20
Avoidance of Constitutional Issues . . . . . . . . . . . . . .  . . . . . 21
Extraterritorial Application Disfavored . . . . . . . . . .. . . . . . . . 22
Judicial Review of Administrative Action . . . . . . . . . . . . . . . 22
Deference to Administrative Interpretation . . . . . .  . . . . .. . . 23
Repeals by Implication . . . . . . . . . . . . . . . .  . . . . . . . . . . . . .  . 26
Laws of the same session . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 27
Appropriations laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Rule of Lenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . 28
Scienter . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . 28
Remedial Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . 29
Statutes Benefiting Indian Tribes . . . . . . . . . . . .  . . . . . . . . . . . 30


Miscellany . . . . . . . . . . . . . . . . .  . . . . . .. . . . . . . . . . . . . 31
Titles of Acts or Sections . . . . . . . . . . . . . . . . . . . . . . . .  . . . . 31
Preambles (“Whereas Clauses”) . . . . . . . . . . . . . . . . . . . . . .  . . 32
Findings and Purposes Sections . . . . . . . . . . . . . . . . . . . . . . 32
“Sense of Congress” Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 33
Savings Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . 33
“Notwithstanding Any Other Provision of Law” . . . . . . . . . 35
Implied Private Right of Action . . . . . . . . . . . . . .  . . . . . . . . . 36
Incorporation by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Severability . . . . . . . . . . .  . . . . . . . . . . . . . . . . . . . . .. . . . . . 38
Deadlines for Administrative Action . . . . . . . . . . . . . . . . . . . . 38


Legislative History . . . . . . . . . . . .  . . . . . . . . . . . . . . . .  . 39
Plain Meaning Rule . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . . 39
Uses of Legislative History . . . . . . . . . . . . . .  . . . . . . . . . . . 41
Post-Enactment or “Subsequent” Legislative History . . . . . . . 44
Subsequent legislation . . . . . . . . . . . . .  . . . . . . . . . . . . . . . 45
Reenactment . . . . . . .. . . . . . . . .  . . . . . . . . . . . . . . . . .. . . 45
Acquiescence . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . . . . . . 46
“Isolated statements” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Signing Statements . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . . .  48

 

One more note:  As this was written by Congressional staffers advising Congress about how to draft statutes in ways that make Congressional intent clear, it's not surprising that the content of the article reflects that perspective.  For instance, the section on   Presidential signing statements looks quite unfavorably on their worth.

Friday, April 11, 2008

An Update from Clarksburg, WV

For the past view days the entirety of Harrison County has been under a "boil water" notice: testers found high levels of coliform and e.coil bacteria in multiple samples.  Today, the warning was finally lifted for most of the area.  Meanwhile, "get the hell out of Clarksburg" moved up a few notches on my list of short-term goals.

Thursday, April 10, 2008

The Justices on Legal Writing

A friend recently forwarded this link to me.  The page contains videos of interviews conducted by legal writing expert Bryan Garner with eight of the nine Justices of the Supreme Court.  The interviews principally focus on the do's and don'ts of legal writing and oral argument, though Garner also covers a few miscellaneous points here and there as well (for instance, Garner asks Justice Scalia about the distinction between a strict constructionist and an originalist).   As of this post, I've watched the interviews with Chief Justice Roberts, Justice Alito, Justice Stevens, and Justice Thomas.  Some randomly listed impressions:

-  All of the justices are scary smart, but Chief Justice Roberts is scary smart and scary articulate.

-  At one point in his interview (in Part 4 of the video), Roberts takes what is for him an uncharacteristically undiplomatic shot at modern legal academics, saying that most of what they produce is worthless to those who must actually deal with law (ie. lawyers and judges) and stating his wish that legal academia had more "engineers" and fewer "theoretical mathematicians."

-  For those (like me) who can proofread a document obsessively before sending it out and still miss typos Justice Stevens offers a bit of solace: he says that he finds typographical errors in most of the briefs that he reads.

-  Of the interviews I've watched thus far, Justice Thomas's provides the most number of valuable insights about legal writing.

-  More than one justice has listed Justice Robert Jackson as a legal writing role model.  Hard to argue with that (for instance here's his dissent in Korematsu).  Justice Holmes also gets some love for his diction (though not his clarity).  Of course, Chief Justice Marshall is mentioned repeatedly as a great writer as well.  On the other end of the spectrum, any opinion from the 1870's-era Court (Pennoyer v. Neff, anyone?) presumptively sucks.  It was nice to learn that even Chief Justice Roberts, when looking through old cases, sometimes has to put the Supreme Court Reporter down and look for discussions that are more easily comprehensible.

-  It was also nice to hear from Justice Scalia again (he's said it elsewhere) that writing is very difficult and exhausting for him, though (of course) ultimately rewarding.

-  Best oral advocacy tip:  Chief Justice Roberts discussing how he prepared for oral argument by, among other things, practicing giving the major points of his argument in random order so that he would be prepared to transition from any one major point in his argument to any other point (thus allowing him to answer a question on one point and then smoothly turn to a point he wanted to talk about).

More later.

 

Corrections:  Fixed a couple of grammatical errors.  (No, the irony does not escape me.)

Intolerance Will Not Be Tolerated!

Eugene Volokh over at the Volokh Conspiracy has uncovered a very informative statement from an official for the Canadian Human Rights Commission about the consideration given to freedom of speech in investigating complaints about "offensive" works:

MS KULASZKA: Mr. Steacy, you were talking before about context and how important it is when you do your investigation. What value do you give freedom of speech when you investigate one of these complaints?

MR. STEACY: Freedom of speech is an American concept, so I don't give it any value.

MS KULASZKA: Okay. That was a clear answer.

MR. STEACY: It's not my job to give value to an American concept.

 

Volokh also assesses some of the official's other remarks,  to make sure that the above exchange wasn't taken out of context and isn't unrepresentative of his true views.  It appears that it wasn't, and isn't.

(By the way, the Canadian Human Rights Commission is one of the bodies that is prosecuting writer Mark Steyn for remarks that some radical Muslims found offensive.)

Of course, we in the U.S. have had some problems with speech police (including at my beloved West Virginia University, which until quite recently had one of the most restrictive speech codes in the nation ).  But while we face continuing battles with officials who ignore the Constitution, it's worth remembering that the situation is considerably worse in some places pretty close to us, geographically and politically.

(PS:  Give yourself a pat on the back if you caught the South Park reference.)

 

Correction:  Fixed a grammatical error.

Wednesday, April 9, 2008

Good Stuff

 

You may have noted, dear reader, that earlier this week the 2008 Pulitzer prize winners were announced. The winner for editorial cartooning was Michael Ramirez, an artist for Investor's Business Daily. His winning portfolio of work (posted here on the Pulitzer website) includes some really funny pieces, like this one:





















My favorite, though, has to be this one:





It's one thing to draw powerful cartoons about the war in Iraq (on either side of the matter), but coming up with a brilliant -- and devastatingly truthful -- cartoon about ethanol policy is Pulitzer-worthy indeed.

(Hat tip: Tim Gross in The Corner for posting about the award and putting up a copy of Ramirez's latest (also a good one).)

Tuesday, April 8, 2008

Some More Not-So-Flattering Details About Obama's Spiritual Mentors

Over the last month of so we've all heard about the decidedly unhopeful and disuniting views of Barack Obama's pastor, Jeremiah Wright.  But now we're learning a bit more about the views of some of his other spiritual influencers as well.  As recounted by Christopher Hitchens in his latest column (a quite good one, by the way), Obama has cited three Illinois religious figures who have most shaped his life: Wright, James Meeks, and Father Michael Pfleger. 

David Kopel over at the Volokh Conspiracy has dug up some info about Pfleger.  Not too surprisingly, Pfleger has in the past strongly defended the anti-Semitic Louis Farrakhan, calling him "a great man" and "a friend of mine."  More interesting are some comments made by the Father during a protest rally outside a suburban Chicago gun shop in 2007:

In another demonstration at Chuck's Gun Shop, owned by John Riggio, Rev. Pfleger told the crowd: "We're going to find you and snuff you out....Like a rat you're going to hide. But like a rat, we're going to catch you and pull you out....We're going to snuff out John Riggio." Rev. Pfleger also promised: "We're going to snuff out legislators that are voting against our gun laws. We're coming for you because we're not going to sit idly."

Quite the man of God, he is.

Monday, April 7, 2008

Co-Winners of the Award for the Least Surprising Story of the Day

Bush biographers say the script for Oliver Stone's coming biopic "W" is inaccurate.

Absolut has apologized for its Mexico-retakes-the-Southwest fantasy ad.

Sunday, April 6, 2008

A Silly "Expiration Date"

Yale law profs Bruce Ackerman and Oona Hathaway had an op-ed in The Washington Post yesterday arguing that the Iraq War will become illegal on January 1, 2009 because the Congressional authorization for the war will expire.  Now, of course no U.S. judge is his or her right mind would ever declare the war unlawful, considering the deference due to the political branches in resolving such matters (and especially considering that Congress could the war by simply cutting off funding for it if the body were ever truly intent on doing so).  But to the extent that such a label is important politically, its worth breifly examining Ackerman and Hathaway's claim.

The directly relevant portion of the 2003 Congressional resolution authorizing the war says

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

Ackerman and Hathaway argue that neither of these two conditions will be present after the new year; they contend that Iraq no longer poses a "continuing threat" to the U.S. because the regime of Saddam Hussein has been removed and the last U.N. resolutions authorizing the presence of Coalition forces in the country will expire on Jan. 1, with the U.S. not requesting an extension.  They may or may not be right about the expiration of the U.N. mandate (I admit I'm not immediately familiar with the ending dates of the various U.N. resolutions on the subject) but their (quite conclusorily stated)  contention that the first condition ceased being applicable when Hussein was overthrown is hogwash. The authorizing language quoted above clearly gives the President virtually plenary power to determine whether the "continuing threat posed by Iraq" still exists and what to do about it.  To say that the President would be violating the law by determining that the national security of the United States would be endangered by the fall of the current Iraqi government and its replacement by all-out civil strife (which might well happen if the U.S. were to withdrawal in the near future) is wildly inconsistent with both the text and the spirit of the authorizing resolution.

Saturday, April 5, 2008

Playing to Stereotype

We learned this week that in October 2001 famous Justice Department legal advisor (and now law prof) John Yoo authored a memo opining that the Fourth Amendment has "no application to domestic military operations."  In context, "domestic military operations" apparently referred to surveillance programs conducted by the National Security Agency (the NSA is technically a military entity).  The import of that view is that the federal government can, by using the talismanic "anti-terror investigation" label, wiretap conversations by Americans with no regard for the protections of the Fourth Amendment.

The Bush Administration has since rejected Yoo's interpretation, but may not have done so until sometime in 2003. I've never really bought into the liberal charges that (now former) key Justice Department officials like Yoo viewed the President as "above the law" in conducting the war on terror, but Yoo and company sure provided a lot of ammunition for that argument.

Thursday, April 3, 2008

Unsurprisingly, This is Causing a Bit of a Ruckus

A picture of an Absolut Vodka billboard ad, taken someplace (I'd be more specific if I could) in Mexico:

mexicog 

More on this (including a credit to the photographer) here.  The commenters on the linked-to post are, to say the least, not pleased with the ad.

Wednesday, April 2, 2008

An Excellent Debate on Medellin

The Federalist Society has a very good discussion up on the Medellin case.  Part I (which deals with the Court's conclusion that the treaty obligations in the case were not self-executing) is here, Part II (dealing with the presidential powers issues) is here.  I've only read Part I at this writing; that segment is quite good, with the great rising scholar Nicholas Rosenkranz (among others) delivering a beatdown on Medellin critic David Sloss.

Incidentally, if you haven't bookmarked Originally Speaking, the Fed Soc's main debates page, you should.

(Hat tip:  Orin Kerr at Volokh Conspiracy)