February 29, 2004

Biblical Criticism

Anthony Rickey has posted some pointed commentary that ought to substantially embarass the folks that he criticizes—unless they simply like to publicly wallow in ignorance. He sums up the rationale for his condemnation quite nicely:

The trouble is that to even my admittedly passing theological knowledge, the piece is dumb. Smart people shouldn't post it.

In short, even a non-scholar can recognize the slapdash biblical argument being touted as a non-sequitor. Glenn Reynolds should be similarly embarassed for posting this.

The problem with the foregoing sort of arguments being put forward by those who support gay marriage against those who oppose the institution on religious grounds is twofold. First, they attack the most ignorant of Christians (i.e., those whose knowledge and understanding of the Bible and church teachings are equally simpleminded), rather than addressing more sophisticated ones. This, of course, doesn't really prove much, except that even Reynolds et al. are more clever than the average ignoramus.

Relatedly, Christian condemnation of homosexuality need not exclusively depend on the Old Testament. The Christian case against homosexuality finds support in the New Testament book of Romans and over a thousand years of church teaching and tradition. This interpretation of Romans and Christianity's teaching and tradition on the subject of homosexuality might arguably be mistaken, or simply be irrelevant to how a modern nonsectarian state conducts itself; however, to proceed as if Christians were merely grounding their position in the law of the ancient Hebrews is mistaken to the point of misrepresentation.

This distinction between Old and New Testament techings is not a trifle from the perspective of many Christians either. For example, the mocking congressional speech discussed in Rickey's post cites a passage from Deuteronomy for the proposition that wives who do not come into a marriage as a virgin should be stoned to death. That same passage goes on to condemn those who commit adultery to death as well. Yet Jesus himself abrogated this very portion of the law:

[1] Jesus went unto the mount of Olives.
[2] And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them.
[3] And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,
[4] They say unto him, Master, this woman was taken in adultery, in the very act.
[5] Now Moses in the law commanded us, that such should be stoned: but what sayest thou?
[6] This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.
[7] So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
[8] And again he stooped down, and wrote on the ground.
[9] And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst.
[10] When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? Hath no man condemned thee?
[11] She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more.

John 8:1-11.

I cannot help but note with some genuine humor that the folks so eager to throw the Hebrew law in Christians' faces stand in the shoes of the Pharisees.

Secondly, the comparative proposition being put forward is argumentatively flawed. The basic premise of the argument is that if one accepts the Old Testament's condemnation of homosexuality, then one must endorse all other moral teachings located in the Old Testament as well, or else be guilty of cafeteria Christianity. But, of course, if a Christian were to cite Deuteronomy 5:17 in support of the proposition that murder is morally wrong, no one would derisively countercite Leviticus 11:9-12 and think it a sensible let alone clever refutation. In short, we all readily accept some principles from the Old Testament while discarding others and seldom if ever think twice about it. Some teachings have survived into modern Christianity and others have not.

I am not certain that there is such a thing as a convincing argument either for or against gay marriage, inasmuch as everyone more likely than not is proceeding on moral intuition in this area. But there certainly are bad arguments. This business about marriage as understood in terms of the Old Testament isn't just a bad argument, it is the worst argument that I have yet heard. It's the sort of discourse that not only fails to convince, but fails to convince one to even go on listening.

Update: In the original post, I wrote that:

In short, we all readily accept some principles from the Old Testament while discarding others and seldom if ever think twice about it. Some teachings have survived into modern Christianity and others have not.

This produced at least one disgruntled reply in the comments. "Simon" wrote:

. . . [A]ppropo your comment that "some teachings have survived . . . while others have not," I'd love to hear you explain how we should determine which of those teachings have not survived because they are bad teachings and which have not survived because we are all sinners.

I do not think, however, that such hard work is in order in this case. For Christians, these topics were resolved by the foundational texts. Consider Mark 7:1-23, in which Jesus is reputed to have expressly stated that, "[t]here is nothing from without a man, that entering into him can defile him" in the specific context of Jewish custom and practice regarding food. No such utterance excusing homosexuality is to be found in the New Testament, however. Indeed, as noted, Paul's letter to the Romans appears to contemplate such behavior as sinful.

Nonbelievers, no doubt, are less than convinced by scriptural and doctrinal arguments. Moreover, even if one does seriously regard the Christian faith, arguments more sophisticated than "God Hates Shrimp" might be put forward that cast homosexuality in a more favorable light. In the comments, "Ruidh" attempts to do just that concerning the segment of Romans under discussion. But the foregoing concessions do not gainsay that "God Hates Shrimp" is a ridiculous and ridiculously ignorant argument. It simply is not a counterargument to the traditional position on homosexuality adopted by Christians.

Posted by Curmudgeonly Clerk at 01:18 PM | Comments (13)

February 28, 2004

The Passion Revisited

Steve Dunn over at Begging to Differ has the one of the most detailed posts that I have seen concerning alleged anti-Semitism in The Passion of the Christ. It also differs from all of the others that I have seen in that it compares the film with two documents, Criteria for the Evaluation of Dramatizations of the Passion and Recommended Changes in the Oberammergau Passion Play after 1984, both of which were intended to reduce the anti-Jewish sentiment in productions involving the passion of Christ.

I have posted my own views on the movie over the course of three posts in the last few days, which may be viewed here, here, and here. Since their original posting, additional updates and/or comments have been appended to them.

I find the controversies surrounding The Passion to be fascinating. However, I am afraid that I am going to have to cut short any further discussion for the time being, as I am off to see another movie. Interestingly, the makers of the film in question are using a weblog to promote to it, which I have never seen before. I do not imagine that Club Dread will arouse nearly as much passion as Gibson's film, but I look forward to it nonetheless. Much to my surprise, Broken Lizard's last film, Super Troopers, was very entertaining.

Update: If you only see one movie this year, make it Club Dread—if you are a masochist! Mere words cannot describe the sheer godawfulness that is that movie. I have read microwave instructions that were funnier.

Posted by Curmudgeonly Clerk at 10:31 AM | Comments (1)

February 27, 2004

Google Searches

The webhosting service that I use provides me with an array of tools that help me keep track of the level of traffic this weblog receives and a referrer log that tells me whence my visitors arrive. Occasionally, people arrive at my site via Google or some similar search engine via some eyeraising search terms. Take this query for instance:

lawyers for transexuals houston, texas

Somehow, I doubt that the searcher in question found what "he" or "she" was looking for. That my site turned up in the search results at all is, no doubt, a textbook example fo the problem that weblogs are creating for Internet search engines. I would love to know what this person's legal problem is though.

Posted by Curmudgeonly Clerk at 10:33 PM | Comments (3)

Grounds For Departure

Defendants convicted of federal crimes sometimes request downward departures under Part K of the United States Sentencing Guidelines. Somehow I doubt that this potential ground for departure urged in a Montreal courtroom will ever be recognized:

A few moments later during his recitation to the court, [convicted murderer Robert] Ivey asked the judge for credit toward his sentencing because of his conscientiousness in having spent "seven hours" cleaning up the crime scene and the victim's body.

(Story via News of the Weird.)

Posted by Curmudgeonly Clerk at 10:54 AM | Comments (5)

February 26, 2004

The Passion: A Review And Commentary

I managed to see The Passion of the Christ late last night. I found it to be an enjoyable experience. It is a well put together film. Whatever its historical and religious failings may (or may not) be, the acting, cinematography, etc. are more than sufficient to distract from any flaws while viewing.

Unlike others, I was not personally moved by this film in any fashion. However, this almost certainly is not a poor reflection on the movie itself, which is undeniably intended to have an emotional impact on the Christian viewer. It just so happens that my own Christian faith is (rightly or, more likely, wrongly) rather detached and depersonalized.

I was also not moved by the film's violence as some have been. Writing of the The Passion, Roger Ebert, for example, opines that:

The movie is 126 minutes long, and I would guess that at least 100 of those minutes, maybe more, are concerned specifically and graphically with the details of the torture and death of Jesus. This is the most violent film I have ever seen.

* * *

Note: I said the film is the most violent I have ever seen. It will probably be the most violent you have ever seen. This is not a criticism but an observation; the film is unsuitable for younger viewers, but works powerfully for those who can endure it. The MPAA's R rating is definitive proof that the organization either will never give the NC-17 rating for violence alone, or was intimidated by the subject matter. If it had been anyone other than Jesus up on that cross, I have a feeling that NC-17 would have been automatic.

Other movie critics have made much the same observation, but fully intended their assessment as criticism. Some have evinced the opposite conclusion, agreeing with the descriptive claim regarding the level of violence but nonetheless finding such a portrayal edifying to some degree. For example, Tom Smith writes that:

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.

I do not, however, share the widespread agreement concerning the level of violence. The violence of the film does not strike me as being particularly unique in degee. Films like Kill Bill, Vol. I positively revel in gore from start to finish, no matter how affected or stylized. The realism of the violence in The Passion is also not particularly unique. Movies like Saving Private Ryan and HBO's semi-related series Band of Brothers pulled no punches in their depiction of war.

What, perhaps, is different about the The Passion is not so much the presentation as the story itself. Other movies present and, sometimes, even dwell on violence in lurid detail in advancing their story arcs. However, in The Passion, which revolves almost exclusively around the crucifixion, the violence is the story. Other movies, no matter how graphic, provide some respite from troubling celluloid events. Unless viewers avert their eyes, The Passion offers no such comfort. Perhaps, its relentlessness accounts for viewers' seemingly greater disgust and horror for the on-screen death of one Jew than for the millions of deaths involved in a film like Schindler's List.

I also suspect that much of the horror evoked by the violence featured in The Passion stems from a predisposition shared by members of the target audience. Christians revere Jesus as the messiah. Witnessing His vicious mistreatment likely arouses a depth of sentiment to which no other protagonist may lay equal claim. Ebert's intuition that "had [it] been anyone other than Jesus up on that cross . . . [an] NC-17 would have been automatic," perhaps, gets things precisely backward in the sense that it would be impossible to have a more sympathetic figure crucified.

Though intense and prolonged, the violence in The Passion is also of a different character than much of the violence elsewhere in cinema. Fight Club, for example, features a brutal, disfiguring beating, after which the protagonist chillingly explains that he "wanted to destroy something beautiful." Films like it and Natural Born Killers seem like little more than exercises in nihilism to much of the viewing public. The premise of The Passion, of course is redemption through blood. See, e.g., Matthew 26:28 (KJV). While the violence of this film is undeniable, it is in no sense gratuitous. Ultimately, to attend The Passion and come away complaining of the violence would be like going to see Days of Thunder and lamenting the omnipresence of NASCAR.

Some may think that the violence detracts from the film's message. Such a subjective claim is hard to evaluate, but one's perspective on this matter is likely shaped in large part by one's own theological leanings. The film's message may also be distorted by either anti-semitism or charges of anti-semitism, depending on one's viewpoint. My own view, having seen the film, is that one cannot plausibly condemn The Passion as anti-Semitic unless one simply thinks the Gospels' accounts are themselves a libel upon the Jews. Others, like Tom Smith, and Jonah Goldberg, seem not to regard the film as being anti-Semitic, but they do think that it could nonetheless inflame anti-Semites. This could be true, but The Passion isn't likely to create any anti-Semites and those who already truck in Jew-hating linger in a perpetual state of inflammation.

In my opinion, a film like The Passion would be greeted by charges of anti-Semitism even if it went out of its way to portray the Jewish establishment with greater sympathy. Christianity purports to supercede Judaism, a claim bound to excite some hostility. For that matter, if taken seriously, The Passion logically entails exclusivism, see, e.g., John 14:6 (KJV), notwithstanding the intellectual contortionism that Christians have engaged in to avoid this conclusion. Doubtless, this is bound to be viewed as confrontational not only by Jews but by any non-Christian. In short, it is probably not possible to make a serious sectarian film about Jesus that does not offend Jewish sensibilities and those of other non-Christian communities. For this reason, I tend to regard the complaints centering on the film's portrayal of culpability for the crucifixion as between the Jews and the Romans as so much makeweight. Rather inaccurate counterarguments centering on Pontius Pilate from those who feel the film is unfair to the Jews reinforces this sense.

Much to my own surprise, what The Passion most reminds me of is Nikos Kazantzakis's maligned and misunderstood The Last Temptation of Christ, which, of course, was made into a film in the late 1980s. Although each goes about it in a dramatically different fashion, The Passion and Last Temptation both place heavy emphasis on Jesus's humanity and His suffering as a means of highlighting the grandeur of His accomplishment. I find The Passion's unrelentingly emotive exploration of Jesus's humanity to be almost quasi-Nestorian in nature, but Christianity has long dwelt on the passion of Christ (e.g., medieval passion plays). Moreover, there are certainly bits of Scripture that place Jesus's humanity on full display. See, e.g., Mark 14:34-36 (KJV). The Passion opens with the very scene depicted in Mark, in which Jesus "prayed that, if it were possible, the hour might pass from him."

Update I: Ipse Dixit provides an interesting take on the film from the perspective of someone who is "not a devout Christian." Among the more interesting observations is this bit:

The condescending twit assigned by the Curious-Urinal to review the film complains that Jesus' motivation for enduring all this pain and strife is largely absent . . . . This strikes me as being rather like going to see The Godfather Part III and complaining that Vito Corleone wasn't in it. This film isn't about why; it's about what.

In some measure, this is why accusations concerning anti-Semitism that are founded on lack of context fail to persuade me. It's also why claims that concentrating on the crucifixion distorts Christianity's teachings or the significance of Christ are not wholly persuasive, in my opinion.

Update II: Two Jewish reviewers offer radically different assessments concerning The Passion's alleged anti-Semitism. Interestingly, Jesse Walker shares sentiments similar to mine concerning the level of violence in the film:

And the gore? It is real, though anyone who comes to the theater expecting to see the Kill Bill of passion plays will be disappointed. All the blood will surely come as a shock to those who get their sacred art from interdenominational greeting cards and Touched by an Angel, but it shouldn't surprise anyone who's spent time in, say, an art gallery. Still, the critics seem obsessed with it. MSNBC.com's John Hartl, for example, appears amazed that the movie spent so much time depicting Christ's suffering and hardly any relaying the man's message: "It tells us next to nothing about Jesus, aside from the fact that he said a few things about loving one's neighbors and then died horribly." Hartl forgets that film is a visual, visceral medium, and that it needn't be driven by narrative or weighed down with explanations. I'd hate to see his review of Bosch's Christ Carrying the Cross or Goya's Arrest of Christ.

Leon Wieseltier's somewhat histrionic impression of the fim, on the other hand, goes some way to confirming my notion that those who condemn The Passion are really incensed by the Gospels themselves or Christianity in general rather than the movie. After previously denying any such thing, Wieseltier writes:

There is another problem with the insistence that a movie such as The Passion of the Christ can be intelligible only to a believer. When a non-Christian such as myself reads the Gospels, he is filled with a deep and genuine pity for the man who endured this savagery, and for his mother. (Jesus' mother is infinitely more affecting than his father.) In its meticulous representation of Jesus'[s] excruciations, Gibson's film is designed to inspire such pity. The spectacle of this man's doom should be unbearable to a good heart. Yet pity is precisely what The Passion of the Christ cannot inspire, because the faith upon which it is based vitiates the sympathetic emotions. Why feel pity, if this suffering is a blessing? Why mourn, if his reward for his torment, and the world's reward, is ordained? If Jesus is not exactly human, then it is not exactly dehumanization that we are watching, and that we are deploring.

Of course, this complaint goes not to the heart of The Passion but rather to the heart of Christianity's conception of Jesus as the Son of God and messiah. In short, Wieseltier's critique is an attack on Christian theology in general, not Mel Gibson's particular brand of the religion or depiction of events.

Update III: The charge of anti-Semitism regarding The Passion largely rests on the comparative depictions of Caiaphas and Pontius Pilate. John O'Sullivan offers a very interesting take on the matter at NRO:

Pilate is portrayed as a sympathetic character, they argue, who wants to spare the innocent Christ but who yields to the demands of Caiaphas and the mob that He should be crucified. Caiaphas, however, harbors no such reluctance. He agitates clearly for Christ's death. And this is undoubtedly what Gibson's film shows—just as it is also undoubtedly the account in the Gospels.

But is it anti-Semitic? For what the critics miss is that this account makes Pilate a far worse villain than Caiaphas. After all, Caiaphas believed that Christ had committed the ultimate sin of blasphemy by claiming to be the Son of God. As a leading representative of religious laws that condemned adulterers to death by stoning, he was almost bound to call for His execution. Caiaphas is making a terrible mistake. He may also have corrupt political motives for his actions. But he is plainly sincere in believing that, however conveniently, he has the law of God on his side.

Pilate is on much weaker ground. He condemns to death a man he believes to be innocent—and he does so, moreover, in a shifty manner that seeks to fix all guilt for the murder on Caiaphas and the mob and to exculpate himself.

From the standpoint of the New Testament, according to the traditional teaching of the Christian church, and in Mel Gibson's movie, Pilate is by far the greater villain. . . .

Posted by Curmudgeonly Clerk at 03:40 PM | Comments (0)

The Historical Pilate

Over at Crooked Timber, in a post on The Passion, Belle Waring quotes with apparent approval a characterization of Pontius Pilate as "the famously ruthless governor." Pilate's said reputation may well be famously wrong. There is actually very little historical information on Pilate, none of which is any more disinterested than the accounts provided in the Gospels. Indeed, the record is so scant and so problematic that historians can do little more than speculate. This is not to say that one need credit the depiction(s) of Pilate in the Gospels, but this notion that the historical record establishes an entirely different and factually accurate view of the man is simply untrue. It is striking how frequently the same folks who turn a jaundiced eye on biblical accounts so seldom apply the same critical lens to other sources.

Update I: I note that this Newsweek story also relies on sources like Josephus and Philo of Alexandria in a fairly uncritical fashion while dwelling on the motives of the authors of the Gospels in some detail.

There is at least one other peculiar passage in the article, when it states that:

The accusation about eating Jesus' flesh and blood—obviously a Christian image of the eucharist—does not appear in any Gospel trial scene.
This is true in the most literal sense: it does not appear in the indicated scene. But the concern over consuming Jesus's flesh was evinced by Jews in one of the Gospels. See John 6:51-52 (KJV). To read the Newsweek article one would think that the entire notion was made up of whole cloth. Ignorance of Scripture combined with credulousness of non-biblical sources does not make for a very useful discussion.

Another curious claim is made by the article:

The climax comes when Caiaphas asks Jesus: "Are you the Messiah?" and Jesus says, "I am . . ." and alludes to himself as "the Son of Man." There is a gasp; the high priest rends his garments and declares Jesus a blasphemer.

* * *
And it was not "blasphemy" to think of yourself as the "Messiah," which more than a few Jewish figures had claimed to be without meeting Jesus' fate, except possibly at the hands of the Romans. The definition of blasphemy was a source of fierce Jewish argument, but it turned on taking God's name in vain—and nothing in the Gospel trial scenes supports the idea that Jesus crossed that line.

This claim occurs in the same passage as the previous one that I criticized, which gives a misleading impression that this too must not appear in the Gospel trial scene. Except, of course that this charge concerning blasphemy does so appear. See Matthew 26:63-65 (KJV).

I think that these two criticisms, which, as noted, appear in the very same passage of the Newsweek article, are quite telling. In the first, Gibson is criticized for including material that does not appear in the trial scene in the Gospels, notwithstanding support in the Gospels for the accusation. In the second criticism, Gibson is criticized for something that does appear in the trial scene in one of the Gospels. In short, Gibson is damned if he does strictly adhere to the text and damned if he doesn't. There seems to be no pleasing his detractors.

(Link via Judith Weiss.)

Update II: More nonsense about Pilate appears in the New York Times, where Edward Rothstein remarks:

The contrast is evident even in the treatment of Jews. Mr. Gibson goes far beyond the Gospels. He makes Pontius Pilate, historically renowned for his brutality . . . ."

I simply love how everyone is a scholar of classical antiquity all of a sudden.

(Link via David Post.)

Update III: Yet more on Pilate from Slate's David Edelstein:

Pilate, whom historians identify as a surpassingly cruel ruler responsible for crucifying many thousands to maintain his authority, is portrayed as a sorrowful, even-tempered man whose wife (Claudia Gerini) shows acts of loving kindness toward Mary (Maia Morgenstern) and Mary Magdalene (Monica Bellucci). Pilate is shocked by the Jews' brutality and by the determination of the priest Caiphas (Mattia Sbragia) to see this so-called blasphemer executed. While Pilate wrinkles his forehead, searching his tender conscience, sundry Jews lean into the camera and hiss or keen through rotted teeth.

Whether the portrayal of Pilate is accurate or fair is one question, but whether Pilate was "surpassingly cruel" is quite another. Edelstein never gets around to quoting any of the "historians" who think Pilate was so. And he certainly doesn't address the dearth of evidence on this score or even note who the few ancient sources are, let alone explore any of their biases. Most of this Pilate-related nonsense that is being pedaled in the wake of The Passion simply depends on the ignorance of the reader for its thesis. Whether the reviewers are similiarly ignorant or outright disingenuous remains an open question in my mind.

(Link via Tom Smith.)

Posted by Curmudgeonly Clerk at 12:26 PM | Comments (1)

February 25, 2004

Found A Job

Oh happy day! It appears that I may have a once in a lifetime opportunity to serve as defense co-counsel in a potential civil lawsuit that sounds like it is straight from the pages of Overlawyered. It promises to be the case of the century. Naturally, the very thought of participating is like sugar on my tongue.

As would-be defendant Evan Schaeffer explains:

For the past way-too-many hours, a man from Europe who claims to have lawyers all over the world (including Florida) has been trying to get me to remove this innocuous post from my blawg. The post, which was about the Talking Heads, included a federal criminal court decision [United States v. Abner, 825 F.2d 835 (5th Cir. 1987)] in which the man's name was mentioned. A few weeks later, thanks to the power of Google on the steroids of blogs, Internet searches for the man's name began to return my post—with its references to the man in the text of the criminal case. This he doesn't like.

However, the e-mails were apparently just a warning sign. Not only has this mysterious European gent declared "I wish you would not say that" in so many words, he is threatening Schaeffer with legal action. A lawsuit would, of course, be traversing a legal road to nowhere under the circumstances. His name is, after all, in a published legal opinion; so his cries of "Give me back my name" are a trifle misdirected when aimed at Schaeffer.

Nonetheless, I can understand how even a clearly frivolous suit has the potential to make one's daily existence resemble life during wartime, which is clearly not a good thing. So rest easy, Mr. Schaeffer, if push comes to shove in federal court, I will stay up late assisting with the necessary response—pro bono.* As my recent psychological profile revealed, I am a firm believer in dismissing groundless suits; rest assured, I will show no compassion in zealously pursuing your defense. I will file dilatory motions until plaintiff's counsel is blind from overload and his mind is reeling. I will bury him in cities of paper that leave him struggling for air. I will do everything short of burning down the courthouse to advance your defense.

In the meantime, you may take some solace in the fact that the criminal case you discussed on your blawg involved illegal currency transactions rather than more serious crime (e.g., offenses involving drugs), so at least we have good reason to believe that your Internet nemesis and plaintiff-in-waiting is not some psycho killer. Believe me, when it is all said and done and we have had our day in court, we will look back and reminisce about what a day that was.

* In a perfect world, I would even be happy to walk it down to the courthouse. But it is a big country, and this potential plaintiff might file his suit in any of the number of jurisdictions under heaven. So you will have to furnish any travel expenses, if you want me to appear in person.

Posted by Curmudgeonly Clerk at 04:15 PM | Comments (2)

The Passion

Writing in Time, Richard Corliss has authored an article about The Passion entitled The Goriest Story Ever Told. The following subtitle accompanies the article: "Mel Gibson's The Passion of the Christ is a well-made film. That doesn't mean you'll want to see it." Among other things, Corliss observes:

Braveheart was gaudily violent, in spurts. This one is crimson carnage from the moment Jesus is condemned, half an hour into the 127-min. film. One of his eyes is caked closed from a beating by Jewish goons, but the Romans are the pros. They take their time applying 80 or so wince-worthy lashes to his body, and the camera pays avid attention to the whole draining spectacle. He falls three times, which is fine for Catholic fidelity but wasteful and redundant as movie drama.

Inspired as much by Renaissance iconography, the Stations of the Cross and the Sorrowful Mysteries of the Rosary as by the Gospels' terse narratives, Gibson portrays Jesus' agony and death in acute and lavish detail. In the end, all that gore tends to blunt not only the story's natural power but even the sense of horror at what a god-man has to endure to save all men. The Passion may be unique in movie history in devoting most of its length to the torture of one man who doesn't fight back. He takes a flaying and keeps on praying. This is Gandhi as Rocky. It's Bloodheart.

What is the audience for this Passion? Many Christians—who would appreciate the message—may be repelled by the film's unrelenting bloodletting. The teen boys who make box-office winners every Friday night may like the blood, but they want their heroes to fight back and blow stuff up. Nor is this exactly a date movie. No, the audience profile for The Passion of the Christ is fairly narrow: true believers with cast-iron stomachs; people who can stand to be grossed out as they are edified. And a few movie critics who can't help admiring Mad Mel for the spiritual compulsion that drove him to invent a new genre—the religious splatter-art film—and bring it to searing life, death and resurrection.

It is sort of difficult to take Corliss seriously on matters of religion in film. In his review of Kevin Smith's Dogma, he opined that:

For all the fun it pokes at Catholic doctrine—that God is a woman (Alanis Morissette), that the last descendant of Jesus (Linda Fiorentino) works in an abortion clinic, that there was a 13th Apostle who was black (Chris Rock)—Dogma is a tortured testament from a true believer. In an age when not only belief in God but belief itself brings a smirk to hip, jaded faces, this is a film out of time, the most devout movie in a modern setting since Robert Bresson's Diary of a Country Priest (1951), and a worthy successor to The Last Temptation of Christ, Martin Scorsese's 1988 parable of doubt purified into faith. Love Dogma or dismiss it, but don't condemn the film for what it isn't. As Ben Affleck, one of the zillion-dollar stars in this $10 million film, says, "It's a rumination on faith. With dick jokes."

* * *

Smith calls the film "a bizarre mix of lowbrow jokes and highbrow concepts and then vice versa." Ain't it, though? He mixes poop and prophecy, scatology and eschatology; he crams his script with enough belly laughs for six Adam Sandler movies and enough citations of angelology and the Gnostic gospels to make a Jesuit's head split. This is a Shavian debate—Don Juan in New Jersey—with potty mouth. Dogma, recall, comes from the Greek word meaning "to think." And that's what Smith wants the viewer to do.

So Dogma is a cerebral encomium of faith, but The Passion is a creepy religious analog to The Texas Chainsaw Massacre?

Although I am quite interested in Gibson's film, I have largely avoided discussing it because its critics seem so unhinged from reality. For example, in an interview with Diane Sawyer, she relayed the concerns of one theologian who wondered with terrible seriousness if Martian visitors unacquainted with the complete story of the Gospels might miscontrue the film as being anti-semitic. Gibson's worthy reply was to the effect that, yes, they might—if they were from Mars.

These complaints about violence strike me as being similarly odd. Objecting to an apparently accurate depiction of Roman crucifixion is like objecting to the vivid and harrowing portrayal of combat in Saving Private Ryan or Blackhawk Down. I am reminded of an acquaintance of mine who refused to see Schindler's List, because she felt that the Holocaust was just too upsetting, too depressing a topic to endure. Yes, it is so much better to shut our eyes and put all of this unpleasantness out of mind.

Posted by Curmudgeonly Clerk at 12:07 PM | Comments (8)

February 24, 2004

FRCP: A Window to the Soul?

Like horoscopes, online quizzes are sufficiently generalized that one can always see themselves in the results. Of course, I would be dismissive of this quiz, wouldn't I?

While you might be a defendant's best friend, you aren't exactly polite to others. You have seven separate grounds on which to dismiss a plaintiff's case. You are a bit paranoid, since if you fail to raise your 12(b)(2,3,4, or 7) in a motion or a pleading with one of the other 12(b) defenses or a 12(e) motion, you waive those objections for the rest of trial. It is clear that 12(b) is the biggest bully of the rules of the civil procedure. While it is true that many states have modeled their motions to dismiss off of rule 12(b), are you sure that you truly want to model your personality after such an obnoxious rule?

Which Federal Rule of Civil Procedure Are You?
(brought to you by Quizilla)

The full text of Fed. R. Civ. P. 12(b) may be viewed here.

Posted by Curmudgeonly Clerk at 03:38 PM | Comments (3)

February 23, 2004

The Hiibel Case

The Washington Times has an editorial about a case concerning the Fourth Amendment (and, perhaps, the Fifth Amendment as well) slated to be heard by the Supreme Court in the near future. It begins:

Next week the U.S. Supreme Court will hear a case to decide whether or not all Americans must have identification on them at all times. The case has been brought by a cowboy in Nevada who was asked to show ID while he was leaning against his pickup truck on the side of the road near his ranch. The police officer did not offer any specific reason why he demanded proof of identity. Having committed no crime, Dudley Hiibel, the cowboy, refused—and was arrested. He was later convicted for "Delaying a Peace Officer." In America, still a free country, citizens should not be required to provide identification papers at any whim of the authorities.

In the case at hand, Mr. Hiibel gave the arresting officer a chance to justify his request. But when asked why he demanded identification, the sheriff's deputy said only, "Because I'm investigating." When asked what he was investigating, the policeman responded with a wisecrack: "I'm investigating an investigation." The argument before the U.S. Supreme Court is whether requiring identification at any time is a violation of the Fourth Amendment's protection against unreasonable searches and seizures or an invasion of privacy by the government.

Interestingly, the cowboy in question has a website that provides greater detail about the case. Among other things, the site has links to several of the filings that have been submitted to the Supreme Court. Both the ACLU and the Cato Institute have filed amicus briefs in the case supporting Hiibel's position. The Solicitor General of the United States has filed an amicus brief defending the state's law and the officer's conduct.

The statement of facts in the Solicitor General's brief suggests that this may be a closer case than the Times editorial indicates. Or at the very least it gives the impression that the case is not so factually lopsided as the Times's recital suggests. It states that:

On the evening of May 21, 2000, Humboldt County, Nevada Sheriff's Deputy Lee Dove received a report that a witness had seen an individual striking a female passenger inside a pickup truck. Dove drove to the location of the incident and spoke to the witness, and the witness directed him to a truck that was parked nearby. When Dove approached the truck, he observed skid marks in the gravel, suggesting that the truck had been pulled over in an aggressive manner. Petitioner was standing outside the truck and his minor daughter was seated inside. Based on petitioner's mannerisms, speech, eyes, and odor, Dove believed that petitioner was intoxicated.

Deputy Dove told petitioner that he had received a report that petitioner had been fighting with the passenger, and Dove asked petitioner to identify himself. Petitioner refused, instead placing his hands behind his back and challenging Dove to take him to jail. Dove continued to ask petitioner for identification, and petitioner continued to refuse. Petitioner stated that he had done nothing wrong, and he continued to place his hands behind his back and to ask Dove to take him to jail. After eleven unsuccessful attempts to determine petitioner's identity, and after warning petitioner that his failure to provide his identity would result in his arrest, Dove handcuffed petitioner and placed him under arrest.

Whichever depiction is more accurate (or more legally relevant), the Hiibel case seems worth watching.

Posted by Curmudgeonly Clerk at 07:42 PM | Comments (7)

February 22, 2004

The Jurisprudence Of The Dead

Trivial Pursuits recently disparaged textualism, or at least textualists' purported committment thereto. Quoting Eugene Oregon in a discussion of the constitutionality of judicial recess appointments, Trivial Pursuits writes:

But I can't see how committed textualists can get around this:

Article II, Section 2 says

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

The key word here is "happen." A straightforward, textualist reading of this would lead one to conclude that only those vacancies that "happen," or occur, during a Senate recess can be filled by recess appointments. Unfortunately, that has not been the historical understanding.

And don't give me any garbage about how precedent has applied the terms. The very fact that precedent may stray from the plain words of the text, and the original understanding of those words is precisely why J. Scalia, inter alia, has said time and again that precedent is less important in his decision calculus than it might otherwise be. Precedent that is dissonant with the 'mandates' of textualism and originalism cannot dictate a given result. Right?

This seems to me to be a toughie for intellectually honest, politically conservative textualists. Well? What do the two of you say?

There are a couple of real problems with this criticism. The first is that it does not necessarily apply a textualist understanding to Article II, Section 2, Clause 3 of the Constitution. Ratification of the Constitution was completed in 1788. So in order to interpret this clause in a textualist manner, we must first have some sense of how the term "happen" was employed at the time that it was drafted and adopted. Language usage and meaning is not absolute; it changes over time. So if we engage in a plain meaning textualism that takes no account of differences in usage between yesterday and today, we will quickly be lead astray. See United States v. Lopez, 514 U.S. 549, 587 (1995) (Thomas, J., concurring) (observing in a Commerce Clause case that "interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems").

I get no sense from reading Trivial Pursuits' or Eugene Oregon's posts that they have undertaken the sort of research necessary to confirm that their usage of "happen" coincides with that of the Framers. They just assume that textualism means reading the text in a vaccum. But, of course, in order to understand a text we must generally understand its context as well, including the historical context of the language employed. To do otherwise would be like trying to read Shakespeare without acknowledging the differences in his English and ours. The jurisprudence of textualists consciously acknowledges this distinction. See, e.g., Lopez, 514 U.S. at 585-86 (Thomas, J., concurring) (consulting late-eighteenth century dictionaries concerning the definition of "commerce").

Furthermore, Trivial Pursuits and Eugene Oregon do not even bother to confirm that their understanding of happen reflects contemporary usage. They just assume their conclusion. It is not clear that even the modern usage of the word "happen" would not allow for the recess appointments in dispute. While "to occur" is one very prominent modern meaning of "happen," the third definition in the foregoing hyperlink includes "to . . . encounter." Hence, one might read the clause in question to mean that when the president encounters vacancies he may fill them. Trivial Pursuits and Eugene Oregon simply assume that the meaning is plain as day, but such clarity is not altogether clear even by way of contemporary speech. Textualism is not nearly so easy an exercise as they intimate.

The second difficulty with their critique stems from their disparagement of stare decisis and their apparent belief that textualism and stare decisis are incompatible. Although Trivial Pursuits does correctly indicate that precedent in constitutional law enjoys less prestige under a textualist understanding when it fails to conform to the text, no textualist argues that precedent enjoys no privilege or status. His criticism in this regard reminds me of the denunciations of "fair weather federalism" that are issued anytime conservatives think that states rights ought to give way to federal prerogatives. In short, this criticism depends on an absolutist form of textualism that no one has (or could) argue in behalf of without being regarded as a wild-eyed radical. Utter disregard for settled precedent in favor of textualism and originalism would work a judicial revolution in constitutional law.

Liberals often perceive such nuance as being awfully convenient. For example, the Supreme Court's Eleventh Amendment sovereign immunity jurisprudence has largely come at the expense of textualist interpretation. Instead of honoring the text, a majorty of the Court has seen fit to abide by longstanding precedent, e.g., Hans v. Louisiana, 134 U.S. 1 (1890), notwithstanding some erudite dissents by Justice Souter that would seem to demonstrate that the precedent in question rests on a mistaken historical understanding. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 100 et seq. (1996) (Souter, J., dissenting).

However, everyone's ox is gored by adherence to such imperfect precedent. For example, there appears to be little doubt that our understanding of the Commerce Clause has strayed from its textual and historical moorings since the 1930s. Lopez, 514 U.S. at 593-601 (Thomas, J., concurring). Conservatives and libertarians would certainly as a matter of policy preference be delighted to turn back the clock. However, stare decisis likely insulates the intervening decades' jurisprudence from revisitation. See id. at 601 n.8 (Thomas, J., concurring) ("Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean."); see also Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-59 (1992) (upholding the precedential status of Roe v. Wade).

This is not to say that textualism and stare decisis are not in tension with one another on occasion. Clearly they are at times. The extent to which the former must give way to the latter is indicated by the flexible standards concerning adherence to precedent articulated in Casey. Reasonable people may often find themselves disagreeing about the proper application of these standards, but the notion that such differences amount to intellectual dishonesty on the part of textualists is uncharitable. Indeed, such assertions are insupportable. Deference to historical practice and settled precedent that are potentially at variance with a proper textualist understanding is not hypocrisy.

Were they writing on a blank slate, textualists might well apply a textualist jurisprudence to the exclusion of all other considerations. The unelaborated state of the Ninth Amendment, for example, provides an ideal occasion for doing so. However, federal judges are not judicial philosophers engaged in some abstract intellectual enterprise divorced from the constraints of custom. As Justice Frankfurter once explained:

The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Sec.] 1 of Art. II.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).

It may be that Justice Frankfurter goes too far for some textualists, however, I think that the core of the sentiments that he conveys may be reconciled to textualism. Longstanding executive branch practice is akin to venerable judicial precedent. As with the latter, whenever the former exists, the Court is no longer writing on a blank slate. Accordingly, it must acknowledge the context within which it writes, even if a plain reading of the text might counsel a contrary result. To do any less would produce a radical counterrevolution in American jurispriudence. See Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) ("The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.").

Posted by Curmudgeonly Clerk at 05:41 PM | Comments (19)

February 21, 2004

Old Enough To Know Better II

A short while ago, I noted with surprise the rather mild and understated reactions expressed by some folks regarding false accusations made by some pre-teens that resulted in a man being jailed for a substantial period of time. Children of similar ages have recently been detained over a plot to burn down their middle school. The San Francisco Chronicle reports that:

Police arrested nine boys, all between 12 and 14 years old, Wednesday in the alleged plan to set fires and smash windows at Cupertino Middle School on Friday night, said Capt. Glenn Fortin of the Sunnyvale Department of Public Safety. All nine boys, whom authorities did not identify because they are juveniles, face charges of felonious conspiracy to commit arson and vandalism. Six boys believed to be the key instigators remained in Juvenile Hall on Friday; three others were cited and released to their parents. The three remaining boys, including the pair who warned officials, have been cleared of any wrongdoing.

Alerted by school officials Wednesday morning, police said they found a written "operational plan" that assigned specific roles by name to a dozen boys and involved bringing a rifle, gasoline and walkie-talkies. . . .

* * *

"It was very chilling (to have) children 12 to 14 years of age having that level of sophistication to create an operational plan to carry out an act of this level,'' Fortin said. He wouldn't discuss the boys' motives but said one youngster had been recently disciplined at school.

It appears from the story that these tykes' plan was scheduled to take place after school hours and that there was no intention to harm anyone. Of course, arson is almost certain to entail the risk of loss of human life. If no one else, it endangers the firefighters who must inevitably respond to the conflagration. Such simple calculations really do not strike me as being beyond the grasp of 12-14-year-olds.

Placed in this context, the reaction of the school's principle is astounding:

According to the handwritten plan, Principal Barbara Boone said, "The kids were supposed to bring stuff, like, one was supposed to bring a hammer to break windows. They were going to break windows and try to set anything they could on fire.''

As she noted in a letter to parents, Boone said she found some relief that the accused students "made it clear that they only wanted to do damage to the school'' in the nighttime attack and "had no intention of harming any fellow students.''

"These were just a few kids who made wrong choices,'' Boone said, noting that 1,100 students attend the award-winning school. "We have a lot of kids who make right choices. And we have to work with the few who made wrong choices and try to reconnect with them, because they're going to need help and support.''

While I do not discount the possibility of rehabilitation or the necessity of earnestly attempting it, it seems to me that any behavioral correction must begin with a sterner characterization of criminal conspiracies that put human life at risk than "wrong choices." The juvenile justice system is the appropriate means of "reconnect[ing]" with such wayward youth.

Posted by Curmudgeonly Clerk at 07:32 PM | Comments (1)

February 20, 2004


Judge Bertelsman on a failing endemic within the legal profession:
Nothing lulls an attorney to the passage of time like the sound of his or her own voice. Few attorneys can tell you what time it is without describing how the clock was made.

United States v. Reaves, 636 F. Supp. 1575, 1579 (E.D. Ky. 1986).

Posted by Curmudgeonly Clerk at 10:17 AM | Comments (16)

February 19, 2004

Ink Blots

The proper meaning of the Ninth Amendment is once again being debated. Steve Dilliard has collected the links pertaining to this discussion. Although I have not studied the issue deeply, I was prompted to comment by Trivial Pursuits.

I am in large part a textualist. That is, all things being equal, I adhere to the judicial philosophy elaborated by Antonin Scalia in his essay Common Law Courts in a Civil Law System, which may be found in a collection entitled A Matter of Interpretation. Therefore, my inclination is that this debate should begin and end with the text itself.

The Ninth Amendment in its entirety reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

My immediate reaction upon re-reading the text late last evening, expressed in the comments at Trivial Pursuits, was that this single sentence had no substantive content, that, like the Tenth Amendment, it merely states a truism, and that it is really no more than a constitutional rejection of the ancient legal maxim expressio unius est exclusio alterius.

I have since discovered that more than one federal court has adopted precisely the view that I have articulated. Consider, for example, the Sixth Circuit Court of Appeals' opinion in Gibson v. Matthews:

We agree with the district court that the ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment "was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution." Charles v. Brown, 495 F. Supp. 862, 863-64 (N.D. Ala. 1980). Accordingly, Gibson's ninth amendment claim holds no merit.

926 F.2d 532, 537 (6th Cir. 1991); accord Lohman v. Township of Oxford, No. Civ. A. 91-7037, 1992 WL 95914, at *4 (E.D. Pa. Apr. 22, 1992) (unpublished opinion).

Charles v. Brown is likewise worth consulting. The district court wrote that:

Plaintiffs do not assert that their rights are derived from any constitutional source other than the Ninth Amendment, except that plaintiffs' attorney stated at oral argument that the Fourteenth Amendment should have been included in the complaint for the purpose of incorporating the Ninth Amendment for application to the states. There is ample authority for the principle that provisions expressing fundamental personal rights and found within the first eight amendments to the Constitution have in effect been incorporated into the Fourteenth Amendment and thereby been made applicable to the states. There is no authority, however, stating that the Ninth Amendment has been absorbed by this process.

The rationale behind this becomes apparent after one engages in an analysis of the Ninth Amendment. In contrast to the first eight amendments, the Ninth Amendment does not specify any rights of the people, rather it serves as a savings clause to keep from lowering, degrading or rejecting any rights which are not specifically mentioned in the document itself. The Ninth Amendment does not raise those unmentioned rights to constitutional stature; it simply takes cognizance of their general existence. This is not to say that no unenumerated rights are constitutional in nature, for some of them may be found in the penumbras of the first eight amendments or in the liberty concept of the Fourteenth Amendment and, thus, rise to constitutional magnitude. It is only to say, however, that unenumerated rights do not rise to constitutional magnitude by reason of the Ninth Amendment.

The foregoing interpretation of the Ninth Amendment is supported by the history of that provision, which reflects that the Ninth Amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution. 1 Annals of Congress 438-40 (1789); II Story, Commentaries on the Constitution of the United States 626-27 & 651 (5th ed. 1891). Therefore, this court is of the opinion that there is nothing in the Ninth Amendment to be incorporated by the Fourteenth Amendment as the Ninth Amendment is merely a rule of construction. The alternative interpretation, which is unacceptable to this court, would be to construe the Ninth Amendment as incorporating all fundamental rights into the Constitution, although they were never intended to be rights of constitutional magnitude.

495 F. Supp. at 863-64.

It seems rather clear from the foregoing that the plain language of the Ninth Amendment and its proper historical context unambiguously establish that the amendment is not substantive in nature. It is no more than a constitutional rule of construction.

Folks as diverse as Randy Barnett and Steve Dilliard seem to argue that such an interpretation cannot be right because the Ninth Amendment must mean something. Of course, even as a mere rule of construction it is hardly meaningless. Both reject Robert Bork's position; Bork opined that the meaning of the Ninth Amendment was too uncertain to serve as a source of substantive rights. He testified at his Supreme Court confirmation hearing that:

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Comm. on the Judiciary 249 (1989) (testimony of Robert Bork).

Perhaps, it would be more accurate to say that the Ninth Amendment, if interpreted as a substantive provision, would be little more than a Rorschach blot. The fact that folks like Barnett and Dillard would employ it to dramatically different ends is itself something of an indication of this. Doubtless others would read the Ninth Amendment in still more ways. The central truth of Bork's observation is that no textualist explication of Ninth Amendment rights is possible.

Dillard would essentially engage in an examination of the historical record in search of the Founder's conception of the nature of our unenumerated rights. I think that such an approach is no less problematic than Barnett's preferred solution. Any right may be stated at a high enough level of generalization to encompass just about any judicial result or construed in narrow enough terms to preclude any given result. The framing of the legal question and description of the right at issue makes all the difference. Just consider the difference in how the issues were framed in Bowers v. Hardwick, 478 U.S. 186 (1986), and Lawrence v. Texas, 123 S. Ct. 2472 (2003), for example.

Accordingly, it seems to me that what will be outcome determinative if the Ninth Amendment is employed to recognize substantive rights is nothing more than the political preferences of the sitting members of the Supreme Court. This is one area of the law in which the Legal Realist critique has genuine merit. To paraphrase Justice Holmes, the Ninth Amendment does not enact Mr. Randy Barnett's Libertarianism or anyone else's ideological predilections. See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). How proponents of these substantive Ninth Amendment theories have convinced themselves that they are doing anything other than resurrecting Lochner in a different context is beyond me.

Where our unenumerated rights are concerned—whatever they might be—my intuition is that the legislative process is a better guarantor of their status and security than judicial decisionmaking, if for no other reason than that we, the people, may more easily revisit mere legislative enactments than the constitutional rulings of the federal courts. Doubtless some will find such a solution unpalatable. After all, rights, if constitutional in scope, are hardly a matter of legislative grace. But courts have hardly proven themselves to be infallible in securing even our enumerated rights, and the common law adjudicative process has a tendency to insulate the courts' decisions from reconsideration in a fashion that is not characteristic of legislative decisions.

Others might object to such a judicial abdication on the ground that it amounts to unfettered majoritarianism, which endangers the rights of minorities. Given the existing constitutional mechanisms for checking the will of the majority, such a concern seems misplaced. Likewise, it is ultimately difficult to conceive of a more feasible check on tyranny than democratic governance. As Learned Hand once observed:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.

The people may be an uncertain repository of our unenumerated rights, but that is precisely where the Ninth Amendment's actual text locates them. When, as here, we are confronted by a complete absence of judicially manageable standards, we have good reason to suspect that the Ninth Amendment contemplated that the people, through self-government, would see to their unenumerated rights. See Nixon v. United States, 506 U.S. 224, 228-29 (1993) (noting that "the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch").

Update I: Southern Appeal provides links to the opinions of others on this topic here.

Update II: Michael Rappaport has a nice post on this topic as well. Among other things, he notes that:

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).

Update III: Finally, as some additional food for thought that is relevant to Trivial Pursuits' concerns about majoritarianism and the importance of judicial review, Stuart Buck points to two articles that look interesting: Larry Kramer's We The People: Who Has The Last Word on the Constitution? and Michael Stokes Paulsen's The Irrepressible Myth of Marbury.

Posted by Curmudgeonly Clerk at 11:13 AM | Comments (10)

February 18, 2004

Arlen Specter

Stephen Moore has an obnoxious and inaccurate bit of commentary on NRO, in which he asserts that Senator Arlen Specter (R.-Pa.) would be an appropriate running mate for his colleague John Kerry. To label Moore's contentions ridiculous gives them more credit than they deserve. However, semi-irrational Specter-bashing is the meme du jour at National Review these days, which has run this John J. Miller article and a follow-up piece on Specter in the recent past. Lest readers lose themselves in the subtlety of the Miller piece, the cover of the magazine featured a photo of Specter emblazoned with the caption "The Worst Republican Senator."

One gets the distinct impression that the superlative appellation is more the result of the GOP primary contest that Specter faces from a conservative challenger this year than considered judgment. Moore's latest effort for NRO does little to dispel this impression. While Specter, like any politician, may doubtless be subject to justified criticism, Moore's depiction of the senator is more caricature than accurate characterization. Now there is no gainsaying that Specter's challenger, Congressman Pat Toomey is more conservative. Indeed, that is something of an understatement. So it is perfectly understandable why political conservatives might prefer Toomey over Specter on simple ideological grounds. But rather than frankly say so, folks like Moore have stooped to misrepresenting Specter's politics. One wonders why.

Let's consider a couple of Moore's arguments. First, Moore portrays Specter as being so liberal that he would be a good ideological fit as Kerry's running mate. He writes:

Democrat strategists are considering Senators John Edwards, Evan Bayh, and former Senator Max Cleland. But they are overlooking a more ingenious choice: Arlen Specter of Pennsylvania.

Hold on a minute, you're probably thinking. A Kerry-Specter 2004 ticket? Isn't Arlen Specter a Republican? Well, yes, but a Republican in Name Only (RINO). Over the past 25 years, no one in the United States Senate with an "R" next to his name has voted for so many liberal Democratic policies. Specter has about the lowest American Conservative Union rating of any other senator who bothers calling himself a Republican . . . .

* * *

Perhaps his strongest qualification for the job is that he and Kerry agree on so much. They are two liberal peas in the same pod. A new TV ad running in Pennsylvania sponsored by my organization, the Club for Growth, notes that in recent years Kerry and Specter have voted together as often as 71 percent of the time. . . .

Now it is true the Specter has "about the lowest American Conservative Union rating" among GOP senators, albeit not the lowest. Specter has a lifetime ACU rating of 43%. Lincoln Chaffee's rating is slightly lower, while the ratings of other GOP Moderates in the Senate (e.g., Ben Nighthorse Campbell, Susan Collins, Olympia Snowe) are somewhat higher, ranging from 51-56%. However, it is more revealing to look at the ratings of various Democrats. With the exceptions of John Breaux (46%), Robert Byrd (31%), Fritz Hollings (37%), Zell Miller (65%), Ben Nelson (51%), and Mark Pryor (30%), none of the Democrats' ACU ratings rise out of the twenties. Indeed, the majority of the remaining Democrats' ratings do not even rise to the twentieth percentile. John Kerry's ACU rating is is 5%. Other notorious liberals have similarly low percentages: e.g., Barbara Boxer (2%), Hillary Clinton (11%), Jon Edwards (12%), Edward Kennedy (3%), Charles Schumer (6%). So if one takes ACU ratings seriously, as Moore appears to, it is pretty difficult to make the case that Specter and Kerry are political soulmates.

A second charge that Moore makes is that:

. . . [C]onservatives are quivering at the thought of Arlen Specter as the next Judiciary Committee chairman. He could probably do less damage as Kerry's running mate.

Moore cites Specter's failure to support the nomination of Robert Bork to the Supreme Court in 1987 as proof of this charge. Other conservatives have pointed to Specter's opposition to the appellate nomination of Jeff Sessions in 1986 and, more recently, his apparent refusal to support the nomination of Leon Holmes to the federal district bench. Of course, David Keene, the chairman of the aforementioned American Conservative Union and a Specter supporter, has rightly pointed out that Specter played a critical role in confirming Clarence Thomas as an associate justice of the Supreme Court as well. Moreover, even critics like Miller have conceded that, "[d]uring the George W. Bush administration, Specter has supported most of the president's picks for the federal bench." Indeed, if this Washington Times article remains correct, Specter has not voted against a single Bush nominee to date. Hence, while one might plausibly make the case that Specter's record on nominations is mixed, it is nonetheless a far cry from ultraliberal. Others have noted the mixed nature of his record, both on nominations and taken as a whole.

This is not to say that the difference between Specter and Toomey is not pronounced. Toomey has an ACU rating of 96%. But Specter is not a liberal let alone a Massachusett's liberal. Nor is he a Republican In Name Only. He is a GOP moderate. Notwithstanding these facts, yet another NRO detractor of Specter notes that principled conservatives could logically support Specter in his contest with Toomey:

A conservative could nonetheless support Specter in good conscience on the theory that Toomey would be likely to lose the seat for the Republicans, and that in today's circumstances that is not a risk that should be taken.

I offer no opinion on who would best represent the Republican Party in Pennsylvania. However, I recognize spurious charges when I see them. Stephen Moore is either blinded by his own ideology or dishonest. There is a very real difference between Specter and his challenger, but not nearly the difference that Moore suggests.

Posted by Curmudgeonly Clerk at 11:17 PM | Comments (1)

Sex With Clients

The Seattle Times is reporting on yet another disciplinary case concerning an attorney who is alleged to have had sex with one of her clients. The incident in question is atypical in that it involves a female lawyer.

Previously, the attorney and that state disciplinary authorities had agreed to a one-year suspension of her license to practice law. The state's supreme court has apparently rejected this agreed sanction as being too lenient.

Prior posts on this general topic may be viewed here and here. For a recent and fulsome legal discussion of the issues involved, see Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 S. Tex. L. Rev. 307 (2002).

(Times link via Howard Bashman.)

Posted by Curmudgeonly Clerk at 05:09 PM | Comments (5)

Life In The Age Of The Internet

A recent CNN headline: Teen Finds His Picture on Missing Children's Web Site.

Posted by Curmudgeonly Clerk at 03:12 PM | Comments (0)

February 17, 2004

Singapore Does Not Suck!

Speaking of statutory rape, this case, which involves consensual fellatio between a 25-year-old man and a 15-year-old female would apparently qualify as such in all U.S. jurisdictions. However, the case in question arose in Singapore, where sex with a female under 14 is considered statutory rape but sex with a female under 16 is merely a lesser offense (viz. "carnal intercourse with an underage female").

The most interesting aspect of the case, however, is that the sexual act involved would have been illegal no matter what the ages of the participants were:

Singapore's 77-year-old chief judge has given an earthy defence of his country's notorious prohibition on oral sex—declaring the law should be upheld to safeguard Asian standards of decency.

Jailing a 25-year-old former policeman for 12 months for receiving oral sex from a teenage girl, Chief Justice Yong Pung How said that despite growing permissiveness in some countries there were "certain offences that are so repulsive in Asian culture."

"There are countries where you can go and suck away for all you are worth," the judge said. "People in high places do it for all they're worth. I'm not an expert, but you read about it in the papers. But this is Asia."

* * *

"This is Asia. That is why originally it was life imprisonment," said the judge.

* * *

"Times have changed. Women are freer, they don't just run around the kitchen, as it were," he said.

"But ask any mother or your sisters and you'll get a different answer. No lady or woman would ask what aggravation is needed. . . . The offence itself is an aggravation."

Apparently, Chief Justice Yong Pung How's countrymen disagree with his stern assessment of Asian morality. Certainly the purported victim in this case (i.e., the underage female) disagrees—multiple unrelated criminal cases revolve around her sexual adventures.

Update: In one of the foregoing links, another oral sex case from Singapore is referenced:

In an earlier case detailed in the Straits Times a wife tried to punish her unfaithful husband by performing oral sex on him and then reporting him to the police.

The story does not elaborate on the outcome, but the text leaves one with the impression that the authorities blew off the charge.

Posted by Curmudgeonly Clerk at 09:42 PM | Comments (4)

February 16, 2004

Rape, Statutory Rape, and Reform

Professor Sherry Colb has penned a FindLaw column concerning statutory rape that discusses the case of Dixon v. State that I previously wrote about here. Despite her impressive credentials, I am not a big fan of her columns, which at times are painfully unsophisticated. For example, discussing the topic of rape as a capital crime, she once wrote of Coker v. Georgia that:

By specifying the question presented as concerning the "rape of an adult woman," the Court left open at least two questions: May a state execute the rapist of a child (of either sex)? And, may the rapist of an adult man be legitimately punished with death?

The notion that the Supreme Court was leaving open this latter question is a trifle eccentric to say the least. Colb's contention to the contrary depends on a hypersenstive reading of the opinion's factual context that would reduce it (and any other case so analyzed) to its facts alone. Such a narrow construction would deprive cases of any binding precedential status beyond their immediate facts. Needless to say, there is no indication that the Court saw itself as rendering such a perversely narrow decision in Coker.

I think that Colb makes a similarly unjustified argument in her more recent column about statutory rape as well. She writes:

Such liability is controversial in a number of ways, but it also has some benefits that are often overlooked by critics, thus leaving us with a difficult dilemma that admits of no easy answers.

* * *

Though a statutory rape charge would not require proof of force or coercion, feminists observed, young girls were (and may continue to be) especially vulnerable to being raped by the adults in their lives. In one study, for example, seventy-four percent of women who had intercourse before age fourteen and sixty percent of those who had sex before age fifteen report having had a forced sexual experience.

In addition, prosecutors attempting to prove rape in court have historically faced significant burdens, such as corroboration requirements premised on the complaining witness's presumptive lack of credibility.

For many years, legal thinkers like Eighteenth Century British Jurist Sir Matthew Hale were convinced that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." Thus, rape law did not provide a reliable or efficacious vehicle for addressing most sexual violence, and it continues to be of limited utility for acquaintance rapes, as I discussed in an earlier column.

For this reason too, feminists may have viewed statutory rape laws as a godsend. As long as there was sexual intercourse and an under-age victim, the jury could convict. And more importantly, that possibility itself might deter real sexual abuse.

* * *

[Setting aside it's deficiencies, statutory rape] has (and may always have had) redeeming characteristics, even from an enlightened perspective that takes into account the realities of prosecuting rape and of women's equality. It makes it easier, for example, to prosecute and thus to deter real rapists who count on jury skepticism about acquaintance rape allegations.

For starters, Colb's referenced empirical study provides a faulty empirical basis for discussing the sexual behavior that statutory rape laws address. She fails to cite the study by name, so it is difficult to assess it directly. However, the statistics cited lead me to conclude that its findings are of little or no value in this debate. The statistics that Colb cites on their face concern girls 14 and younger. Such a statistic is bound to include activity that would be defined as pedophilia and would legally constitute child molestation, which would generally be prosecutable under other laws in the absence of any provision for statutory rape. Including such figures naturally perverts the inquiry if teenage sexual behavior is what is at issue.

Moreover, most teenage girls remain sexually inexperienced altogether at the age of 15. Alan Guttmacher Institute, Teen Sex and Pregnancy (Sept. 1999) So if we expand our consideration of the topic to the very earliest teens, we are talking about teenage sex at the margins. According to the aforementioned Guttmacher Institute Fact Sheet, "[w]hile 93% of teenage women report that their first intercourse was voluntary, one-quarter of these young women report that it was unwanted." In other words, the teenage sex involved in discussions of statutory rape is predominantly not "nonconsensual" as the law understands that term. Other studies convey much the same impression regarding female teenage sexual behavior. In short, the statistics that Colb cites are not terribly pertinent and appear to be rather alarmist and misleading as well.

But even if her empirical claims were accurate, her argument regarding the primary benefit of statutory rape (i.e., that it makes it easier to prosecute the crime of rape) is legally nonsensical. What separates statutory rape from rape is that the former requires no proof of force and/or nonconsent. This undoubtedly does make prosecuting allegations of rape easier, but only at the expense of redifining rape. Intentional tort claims would likewise undoubtedly be easier to bring if the requirement of demonstrating the requisite intent was eliminated; however, they would no longer be intentional torts, now would they? The same is true of statutory rape. In this sense, it is a perversion of sexual assault law to preserve statutory rape solely to render rape concerning teenage victims easier to prosecute.

If legislatures are worried about teenage females being preyed upon by older men, they can always truncate the scope of their consent via a "Romeo and Juliet" clause (i.e., a clause that excepts sexual relations amongst persons who are within a specified numbers of years in age of one another). However, the data reported in the Guttmacher Fact Sheet indicates that the average legal age of consent is descriptively inaccurate of female teenage behavior and that the average "Romeo and Juliet" clause is unduly narrow given female teenage sexual behavioral norms. In the Dixon case, there was a mere three-year age gap between the defendant and his alleged victim; Georgia has no "Romeo and Juliet" clause whatever. I fail to see the merits of penal laws that are completely out of step with actual behavioral norms, thereby rendering much blameless activity criminal.

Update I: Crescateer Amanda Butler has left a comment that suggests that, she for one, does not find Professor Colb's "open question" argument eccentric. She quips:

Eccentric enough to be one of the prongs on a hypo I had last year.

Of course, Colb herself is a law professor, so I am not too sure that the fact that an additional (unnamed) professor considers this an open question is much proof. Law school hypotheticals are often bizarre and unrealistic, purposely so in order to test a student's ability to apply settled principles to theoretically unsettled (and unsettling) scenarios. As one commentator observed regarding a similarly farfetched legal case:

Notes Weddington, "This one is destined to become a test question on various law school exams because it's so unusual and, some might say, weird."

But far be it from me to dismiss anothers concerns out of hand. I actually did a little Westlaw research. I failed to find a single law review article that addressed Colb's "open question" theory, let alone provided a detailed legal argument concerning it. That is, as near as I can tell, there is no serious legal scholarship on this issue. Given that Coker was handed down in 1977, the fact that no academic has staked his or her professional reputation on this theory in a scholarly article is some indicia of proof that it is not a serious position.

Moreover, the existing scholarship suggests that there is not much basis for Colb's contention. Colb's argument rests on the premise that that Coker dealt solely with the rape of women but not men. There is ample reason to doubt this. For example, discussing a Louisiana state court case, Meryl P. Diamond observed that:

The Wilson court looked at the language of Coker and stated that the plurality decision only applied to the rape of an adult woman because the Court had referred specifically to that classification of rape fourteen times. If one is looking at semantics, this argument fails because the Louisiana court neglected to count the times the Coker Court referred to rape generally, not just to the rape of an adult woman. See generally Coker v. Georgia, 433 U.S. 584, 586-600 (1977) (plurality) (using the term "rape," without the words "of an adult woman," over 20 times).

Note, Assessing the Constitutionality of Capital Child Rape Statutes, 73 St. John's L. Rev. 1159, 1174 n.82 (1999); see also Annaliese Flynn Fleming, Comment, Louisiana's Newest Capital Crime: The Death Penalty for Child Rape, 89 J. Crim. L. & Criminology 717, 737 (1999) ("However, the Court in Coker drew the line: if the perpetrator of the crime does not take human life, the death penalty is disproportionate.").

Admittedly, these two articles' critiques are, of course, just as applicable to the question of whether the fact that the victim is a child makes a constitutional difference. But in the absence of any reasoned argument in support of Colb's second purported open question, her proposition seems even more dubious in light of these observations. After all, dispensing with legal considerations and considering the matter as one of common sense, what is the likelihood of a court holding that rape of men is a capital crime whereas rape of women is not? Isn't to ask that question to answer it?

Update II: In the comments, James B. Shearer argues that:

. . . I believe a real benefit of statutory rape laws is that they allow for some punishment of forcible rapes which would otherwise escape sanction because of problems of proof.

Shearer's argument suffers from a lack of clarity in presentation. What he is maintaining is that the existence of statutory rape laws make it possible to punish people for rape when the state is incapable of proving the latter crime beyond a reasonable doubt. Once this argument is recognized for what it is, I believe that it refutes itself. Having observed the American criminal process in the courtroom, I cannot imagine why we should be eager to empower the state to punish citizens for crimes that it cannot otherwise prove. Difficulties of proof just as easily suggest that we be cautious about making prosecution easier for fear of placing innocent men behind bars on the basis of inconclusive evidence or false accusations. Statutory rape is a separate crime altogether and it must justify its own existence without reference to others. After all, when a defendant is convicted of statutory rape, society is condemning him for that act, not rape.

It would be easier to punish defendants for homicide in cases in which the appropriate mens rea was subject to difficulties of proof if we created a strict liability variant thereof as well. However, this would utterly alter our understanding of homicide. Statutory rape similarly distorts rape. Shearer suggests that stautory rape is akin to criminal offenses that render mere possession of burglary tools an offense. There is a problem with this analogy, however. Possession of tools that have a sole likely use of committing a crime is some genuine indicia of criminal intent. However, as the empirical evidence cited above suggests, there is little reason to suspect that female teenagers ages 15-17 cannot or do not consent to sexual relations with regularity. So statutory rape's empirical assumptions turn out to be false. We cannot safely conclude from the mere fact that a female teenager of the ages indicated had sexual relations that there was a lack of consent.

Finally, Shearer argues that the apparently undisputed actual behavior of teenagers should not be dispositive. He cites underage drinking as an example (i.e., the fact that it occurs should not lead us to legally allow for it). I'm not sure that this is a useful parallel inasmuch as the penalties both for minors in possession of alcohol and for adults who provide them with it are so trivial when compared to statutory rape. Moreover, I am not certain that Shearer gains much traction by referencing how society handles minors and alcohol. The current regime, under which anyone under 21 may not legally possess or imbibe alcohol (with minor exceptions), is pretty clearly unreasonable. What's more interesting is that society is increasingly ready to treat teenagers (and sometimes even younger minors) as being criminally culpable when they are defendants but on the other hand asserts that they are not responsible enough to have a beer or to consent to sexual relations. I think that this dichotomy is untenable.

Posted by Curmudgeonly Clerk at 11:59 PM | Comments (11)

February 15, 2004

Animal (And Other) Rights

Discussing a proposed ban on the sale foie gras in California, I posed a few questions to libertarians who angrily denounced such legislation. While I conceded that I myself am reluctant to endorse a legal anthropomorphism of animals, given the apparent cruelty of foie gras production I queried whether animals enjoyed no rights whatever, whether they are to be regarded as mere propertry in all contexts, and whether legislation might not properly be directed toward certain protections of animals.

Timothy Sandefur took the time the answer these queries, but in a fashion that I think reflects some of the weaknesses of libertarianism. Will Baude, who does not share all of Sandefur's core beliefs, found Sandefur's explanations largely satisfactory. This fact, combined with the sheer number of people incensed by the thought of governmental involvement in this area of concern, leads me to believe that Sandefur's views are probably not uncharacteristic of libertarianism in general and are worth considering in some detail.

Regarding his particular brand of libertarianism (i.e., a natural rights variety), Sandefur writes that, "[a]nimals do not have rights, because they do not have reasoning minds." Accordingly, Sandefur "suspects" that animal cruelty is not a proper subject of governmental interference, though he does indicate that it might be subject to regulation under a theory of "public goods" that would constitute a taking under the law and necessitate compensation. In another post, Sandefur candidly wrote that, in his view, animals do not have "a right not to be tortured." In a rather mild understatement in this second post, Sandefur frankly acknowledges that the application of a "public goods"-based injunction on animal torture is "kinda weird."

Setting aside this unelaborated (and unendorsed) "public goods" rationale, I would like to dwell on libertarianism's inability to account for even a modicum of animal rights. As a starting point, I'd like to begin with this story:

A Thai man was mauled when he drunkenly tried to rape a dog which fiercely resisted his advances, news reports said yesterday.

* * *

He told police he noticed a brown female stray dog wagging its tail and "acting sexy" and pulled it into some tall grass by the roadside.

But the dog resisted, biting him on his face, chest and arms before he gave up his attempt and tried to stagger home.

Under further questioning Toryip admitted to previously raping three dogs while he was under the influence of alcohol.

On Sandefur's account, this dog has no right not to be forced against its will to have sexual relations, notwithstanding its obvious lack of consent. That's what it means to have no rights. No wrong has been done to this creature, nor could any wrong be done to it. It has no more claim to our protection than an inanimate object. If a man wishes to set his cat on fire, the law must idly stand by.

This is not to say that society could not make its moral opproprium of such acts well known. But what would be the basis of societal condemnation other than moral disgust, which Sandefur rejects as a "meaningless" basis for condemnation? After all, if animals have no rights whatever, on what grounds can criticism of their maltreatment proceed. Indeed, one cannot coherently speak of their "maltreatment" or "animal cruelty" on Sandefur's understanding. So when Sandefur writes that he is "bothered by the mistreatment of animals," I cannot imagine what he means.

What Sandefur may be doing is confessing that he is morally disgusted by such treatment of animals (i.e., the rape of dogs makes him exclaim "Yuck!") while simultaneously contending that his disgust is not an appropriate basis for state action and, therefore, that the state cannot justifiably interfere with such behavior. There are some problems with this position as I see it.

The foregoing understanding depends on a debatable bright-line distinction between law and morality, which Sandefur may (or may not) endorse. But in this case relying on the aforesaid distinction seems rather like assuming what must be proved. That is, if you already believe that law and morality are or ought to be distinct in some general sense, you'll have no problem with specific instances of this principle, such as viewing nonconsensual bestiality as falling within those class of behaviors that are immoral but should nonetheless remain legal. This does not demonstrate that the general principle is correct in the first place, of course.

The difficulty that I perceive with this sort of legal/moral dualism is that it itself is incoherent. If moral disgust is "meaningless" as an argument and, therefore, an inappropriate basis for state-enforced compulsion (i.e. legislation), then I fail to perceive how it could constitute valid grounds for moral criticism either. It seems a trifle strange to regard "Yuck!" as a satisfactory basis for castigating others on moral grounds if one has rejected it as a basis for forbidding the repulsive conduct in question on the understanding that "Yuck" is devoid of intellectual content. That is, I fail to see why "Yuck!" is any more convincing as a moral argument than as a legal one—assuming that one finds it insufficient in the latter regard.

But such moral advocacy plays a critical role in Sandefur's opinion. He writes that:

Libertarianism does not say that we should not criticize things, or that we should refuse to acknowledge our misgivings, or advocate for our respective worldviews. Indeed, in a libertarian society, such criticisms are even more important than in a regulated society, because social change depends on our ability to persuade people to our views.

However, one wonders what such moral discourse and suasion amounts to in Sandefur's understanding other than standing up and shouting "Yuck!" ever louder. Perhaps, libertarian moral arguments would resemble libertarian legal arguments (e.g., homosexuality should neither be illegal nor regarded as immoral due to its failure to run afoul of the Millian harm principle). But if this is the case, then libertarians do not, in fact, see any distinction between law and morality, and Sandefur to the contrary appears to believe that such a distinction does exist. What, pray tell, is the libertarian moral argument against nonconsensual bestiality, if it is conceded that animals have no rights, other than "Yuck!"?

My personal disquiet regarding the libertarian theory of rights advocated by Sandefur stems from the fact that it accords living creatures the same moral status as inanimate objects, which seems rather peculiar. Is there really no moral difference between hitting a baseball and striking a monkey? Derek Van Hoften correctly points out that a theory of rights that includes animals is problematic. Indeed, it is, but no more problematic than Sandefur's account.

Sandefur himself acknoweldges that this libertarian theory of rights premised on reason is fraught with (as yet) unanswerable difficulties. For example, if reason is the sine qua non of rights, then there is a considerable period of time in a human being's life prior to which humans enjoy no rights whatsoever. This would not only sanction abortion but infanticide as well. Again, it seems peculiar to maintain that the law cannot rightly prohibit infanticide, that infants have no rights and that their killing cannot, therefore, justifiably occassion any legal sanction. (One also wonders yet again on what moral grounds a libertarian would argue against such a practice.)

Perhaps, this obstacle might be sidestepped via some sort of caveat for incipient reason or the inevitable attainment of reason. But, of course, not all human beings will so develop. On Sandefur's account there should be no legal obstacle to euthanizing the severely retarded, whether they are born that way or merely become that way via design or accident. Some have suggested such measures on other grounds. It appears that Sandefur would have some difficulty intelligibly opposing them. After all, infants and retards have no rights as he sees it; as such, they are entitled to no legal (and, perhaps, no moral) consideration.

One answer would be for libertarians to boldly stand up and acknowledge that all of the foregoing propositions are unavoidable under their principles and that they would sooner part with animals, infants, and retards than with their beliefs. This would preserve the ideological consistency of principle that Sandefur, Baude and others insist libertarianism and libertarians possess. Of course, it would also doom libertarianism to being a fringe political sect with few true proponents, as I suspect that most of humanity is rather less willing to give such short shrift to other living creatures. Another alternative would be for libertarians to candidly dispense with principles that lead nowhere but to moral nihilism and to admit that they are indeed willing to legally forbid certain things (e.g., infanticide) on purely moral grounds.

Update I: Timothy Sandefur has posted a lengthy response to this post, some of which I find quite reasonable in terms of argumentation. Time allowing, I will give his response the time it deserves. For the time being, however, I would like to refute one point that Sandefur is simply mistaken about. He indignantly writes:

I don't have the time here to respond to the Clerk's points on abortion; I think I've answered them sufficiently elsewhere anyway. The Clerk unfairly characterizes my earlier arguments by claiming that I defend infanticide and murdering the mentally retarded. I've never done such a thing, and it is singularly discomforting to find the Clerk—usually so scrupulous about being accurate in arguments—mischaracterizing my positions on these situations. It is simply not true, neither in my recent posts nor in my earlier posts on the subject of abortion, that such "propositions are unavoidable under [libertarian] principles." For the Clerk to set up such straw men means two things: 1) The Clerk knows he cannot attack libertarianism fairly, so he must use this dodge; 2) The Clerk has no rational alternative—you notice he has not offered one—so he takes my unusual honesty in admitting the shortcomings in libertarianism as an opportunity to cover up the fact that he has no answer for these issues, either.

Actually, I never characterize Sandefur as defending infanticide or euthanization of the mentally handicapped. What I do say above is that such practices cannot justifiably be rendered illegal on his account of rights, which appears to be an entirely justified conclusion. For example, I wrote that:

On Sandefur's account there should be no legal obstacle to euthanizing the severely retarded, whether they are born that way or merely become that way via design or accident.

However, this is not a characterization of Sandefur's policy preferences, but rather a statement of the natural consequences that flow from his theory of rights. This distinction is unmistakably clear from the sentences that follow immediately thereafter:

Some have suggested such measures on other grounds. It appears that Sandefur would have some difficulty intelligibly opposing them. After all, infants and retards have no rights as he sees it; as such, they are entitled to no legal (and, perhaps, no moral) consideration.

In other words, I have not placed any words in Sandefur's mouth. I have merely pointed out that he would, on his account of rights, be unable to articulate any response to such practices other than "Yuck!" and that he himself sees "Yuck!" as insufficient grounds for state intervention. In other words, by Sandefur's reasoning, the state would be unjustified in intervening to protect infants from infanticide and the mentally retarded from euthanization.

Sandefur claims that he has sufficiently addressed these sorts of arguments eleswhere on other occasions. I think not. Chris Atkins, an erstwhile guest blogger over at Freespace raised this very issue with specific reference to abortion. Here is what Sandefur wrote in response:

When Atkins says "Thus, taken to its logical conclusion, Tim's thesis that allows for abortion of an unborn baby would allow for the killing of a mentally disabled child at any time"—I admit, he has me on a tough spot. That's a serious flaw in the neo-Lockean argument that I’ve provided. But before we reject the entire argument on these grounds, keep in mind that we do deny children, or the mentally incompetent, a great many rights because of their mental disabilities. We even lock people away for their entire lives in institutions, and subject them to medical treatments without their consent, because of their lack of reason. I admit that my sliding scale of rights can turn into a slippery slope, but I think there must be an answer for this that rescues my theory of rights from oblivion. I do not yet know what it is, precisely. I am certain, however, that it is better than Atkins’ view, which has numerous unfixable flaws.

The bold font emphasis is mine. The emphasized portions readily reveal that Sandefur (1) concedes that his position does logically lead to the propositition that the law may nor properly intervene to forbid abortion, infanticide, euthanization of the mentally handicapped, and (2) that he hasn't the foggiest idea how to rescue his theory from this infirmity. It's also clear that he considers this to be a genuine failing of his theory too. Given these facts, I find Sandefur's apparent outrage and nonresponse on these points with reference to my original post baffling. When he writes that I have "mischaracteriz[ed]" his arguments, I genuinely have no clue what he is talking about.

Update II: Following up on Sandefur's aforementioned post, I would like to address a couple of other points on which he and I do not see eye-to-eye.

First, Sandefur suggests that the whole issue of animal rights (or the lack thereof) is of little consequence on practical grounds. He writes:

The Clerk seems to think that in a free society, people will go around setting cats on fire. But I don’t think that is true. . . . Crushing moral opprobrium comes down on such people. Those who might be tempted to harm animals are, I think, far more likely to be deterred by moral opprobrium than by the law. It is moral outrage, not the law, that has decreased the level of cruelty by our food industry already . . . .

I emphasize this because I think people tend to underemphasize how effective this tool is—how much more effective than law. . . .

Sandefur may be right with regard to the most extreme forms of animnal cruelty (e.g., the aforementioned dog rape). However, in general, I think that he is mistaken on the facts. A great deal of institutionalized animal cruelty exists, often in spite of moral opprobrium and even legal sanctions (e.g., dog fighting, cock fighting, bull fighting). Indeed, it has been suggested that opposition to cock fighting cost a heavily favored candidate a gubenatorial seat in a recent election. So I am less sure that moral disapproval alone is an effective tool against such practices. This is particularly so when these practices enjoy considerable public support, especially in light of Sandefur's acknowledgement that "Yuck!" may be the best we may do in terms of moral persuasion.

Sandefur's response also seems to argue that because we all accept that we may kill animals in certain contexts (e.g. for food), my concerns about animal cruelty are somehow incoherent. Or at least that is the point that I think he is making when, in concluding a paragraph, he writes that:

I would like the Clerk to tell us on what basis (some kinds of) cruelty to (some kinds of) animals may be prohibited, but not other things.

I think that Sandefur's argumentation here is off kilter. He appears to be asserting a form of the argument that the greater includes the lesser; that is, because society generally expresses no moral qualms about killing them, anything may be done to animals. First, we might be utterly mistaken in our lack of moral qualms concerning the killing of animals. Second, operating from Sandefur's own premises about reasoning from nature, it is obvious that all animals (including humans) must consume food to survive. So some survival-related killing of other living organisms, be they vegetable or animal, must be permissible. However, we reject "greater includes the lesser" arguments in any number of contexts (e.g., our Eighth Amendment jurisprudence). So the fact that we may deprive other living things of life does not necessarily say anything about how they are to be treated in life or how they may be deprived of it.

Update III: Timothy Sandefur has added a further reply. Regarding the point that I make in the first update, Sandefur offers some rebuttal:

I do not, and have never, said that libertarianism would prohibit the state from protecting the right of an infant to its life. I think infants do have a right to life, because they have reason, although it is rudimentary. (This rudimentariness accounts for the fact that children can be imprisoned and battered.) I do not think animals have any rights, but the state may legitimately prohibit cruelty to animals as a public good, like any other public decency law. And, again, I challenge the Clerk to provide us with a coherent, or more thorough, answer to the problems of euthanasia or infanticide or whatever.

There are a couple of points that I would like to make in response. First, if infants enjoy some measure of rights based on what Sandefur characterizes as "rudimentary reason," then why don't many animals also enjoy a narrow band of rights as well? As a factual matter, I am not sure that newborns, for example, have any reasoning capacity other than a potential for it. But be that as it may, dogs, for example, evince greater problem-solving skills than the very youngest infants. Unless one simply assumes that this must all be instinctual animal programming that may somehow be distinguished from "reasoning," I do not understand why they should not enjoy some rights under Sandefur's theory of natural rights.

Second, I remain troubled by a conception of rights premised on "rudimentary reason" or "incipient reason." It seems to me that such an account will inevitably result in an utter lack of rights for the severely mentally disabled or comatose accident victims, for example. Perhaps, many have no qualms about such issues, but I think that society's mixed reaction to the Schiavo case, for example, reveals less than consensus on such issues.

Third, the public good argument put forward by Sandefur strikes me as bizarre in cases like animal cruelty etc.. Sandefur himself agrees, characterizing it as "kinda weird." So he cannot really fault me if I fail to be convinced by the public goods argument, I think.

Finally, one of the themes running throughout Sandefur's last couple of posts is that non-libertarians cannot provide a more convincing account of rights and whaterever libertarianism's theoretical failings might be it is nonetheless the best theory going. Obviously, I think that this is an awfully conclusory bit of self-congratulation, but it also misses the point. It may well be that Sandefur, has the best theory going at the moment. I am unconvinced, but let's set aside my doubts. Even if we give Sandefur the benefit of the doubt, this is hardly a reason to stop questioning libertarianism. After all, Ptolemy's account of the universe was once the best thing going, but it was still mistaken. In dwelling on what I consider a potential weakness of libertarianism, I am essentially employing a thought process akin to the scientific method: one instance of disproof is sufficient to disprove a theory in its current form, even if the disproof supplies no coherent alternative.

Now it may be that what I perceive as a weakness in libertarianism is not so. That is, my take on animal rights and the like may be utterly mistaken. I am proceeding in a largely intuitive fashion, one which I acknowledge is fraught with intellectual peril. But moral consequentialism is ultimately a method that we all must employ to some degree in fumbling toward answers to complex moral problems that admit of no easy solution.

For example, I recall that Sandefur once essentially objected to legal positivism, one of the chief competitors of his natural rights theory, on the basis that positivists cannot condemn the institution of slavery by any means other than ipse dixit. Slavery, of course, is unlikely to enjoy a resurgence in this country due to moral consensus alone. Even if the idea were to regain some moral acceptance, the Thirteenth Amendment would pose a nearly insurmountable political obstacle. Hence, there is little practical reason to be concerned with a theory's failure to satisfactorily provide an explanation for why slavery is immoral other than "Yuck!" Yet Sandefur considers this theoretical failing of legal postivism to be a critical one. Although I admire positivism a great deal more than he does, I too find this failing to be cause for great concern and skepticism. I don't see why various perceived theoretical infirmities ought not counsel a similarly critical response where libertarianism is concerned.

Posted by Curmudgeonly Clerk at 06:13 PM | Comments (5)

February 14, 2004

Spongebob Klanpants

How completely out of your mind do you have to be in order to spin this into a racist conspiracy?

Posted by Curmudgeonly Clerk at 11:26 PM | Comments (5)

February 13, 2004

Reading As Masochism

In the sidebar of his website, Anthony Rickey features a heading entitled "What I Shouldn't Be Reading," under which the following blurb, accompanied by a photo of the book jacket, appears:

Law's Empire
by Ronald Dworkin

Like asparagus: I probably won't like it, but it should be good for me.

Well, at least Rickey got one thing right: he shouldn't be reading this dreck. I've read it. Honestly, the only way you could find this book enlightening is if you set it on fire and read something else by the photons emitted. Professor Leiter has pointed out two reasons, among many, why Dworkin isn't worthwhile, and Jacob Levy has publicly concurred in this assessment as well. Frankly, if it were not for his political positions, Dworkin would not be read at all, except by way of the decisive retorts of his critics.

Posted by Curmudgeonly Clerk at 03:43 PM | Comments (4)

(Not) Getting What You (Can't) Pay For

The good news is that it's free; unfortunately, this circumstance is also the bad news.

Posted by Curmudgeonly Clerk at 02:52 PM | Comments (0)

February 12, 2004

Foie Gras

Claire over at Electric Venom characterizes it as "conservative nannying." Timothy Sandefur is equally disdainful. This is the story that has got them riled up. The San Francisco Chronicle reports that:

A proposal by a powerful Bay Area lawmaker could make California the first state to ban the production and sale of foie gras—a move that would wipe the controversial delicacy from menus throughout this food-savvy state.

* * *

Burton's bill seeks to block the sale of foie gras produced by the controversial "speed-feeding" method in which grain is streamed through a pipe inserted down the throat of a duck or goose for weeks at a time toward the end of their lives. The method, which rapidly enlarges the bird's liver, is standard industry practice but considered abhorrent by animal rights activists, who maintain that it causes the birds to suffer.

"You don't need to be cramming food down Donald Duck's throat to have foie gras," Burton said in an interview, calling the procedure "an inhumane way to be dealing with our fine feathered friends."

Now separating the issue from Burton himself and his unseemly allies, what precisely is the objection to banning such a practice? The production of foie gras is sounds rather cruel. It features having a tube placed down the throats of ducks for weeks on end. So if the facts are as they appear, why can't duly elected representatives prohibit it?

I assume that neither is arguing that all animal cruelty laws are invalid, though this is merely an assumption. So it must be the usual marketplace mantra that is driving this debate. But if Californians do not kindly view such legislation then they can lobby their legislators, make their ire known at the polls, and elect officials who will not meddle in this and like matters, no?

I can appreciate the obvious objection: i.e., the accurate contention that a majortarian process would disregard the desires of a significant minority that desires that there be a market in foie gras. But, while I do not wish to see the legal anthropomorphism of the animal kingdom, is our view of animals so dim that they can be said to enjoy no rights? Are all non-human creatures nothing more than chattels in every context? Is libertarianism's view of governmental authority so cramped that a legislative finding of unnecessary cruelty to animals cannot constitute a valid basis of legislation?

Posted by Curmudgeonly Clerk at 08:52 PM | Comments (8)

Old Enough To Know Better

Over the past three days, the Los Angeles Times has run three stories on a single case. The undisputed facts are that three 12-year-old girls (two were 11 at the time of the fabricated event in question) who were out past their parental curfew concocted a story about being assaulted by an indigent man rather than face the music at home. As a result, this man spent eight months in jail before the girls' lie unraveled. The girls were quite rightly arrested and carted off to a juvenile detention facility.

Some of the reactions reported in the aftermath of this event simply take my breath away. For example:

"They handcuffed her, with her arms behind her back. She was scared and started shaking," said Veronica Mendez Ochoa, the mother of one of two girls arrested at James Irvine Intermediate School in Garden Grove. "She's a little girl, but they handcuffed her like she was a murderer."

* * *

"This alleged crime is not a violent crime," said Shirley MacDonald Juarez, the attorney. "These girls have been totally cooperative with police. There was no need for this [i.e., arresting them at school etc.]."

* * *

"They're going to have to live with that humiliation for years to come," said Jack Earley, an Orange County defense attorney and president of the California Attorneys for Criminal Justice. "They'll be remembered in middle school and high school as the girls who got in trouble for making up that story. I think for kids their age, they are learning a very, very big lesson."

* * *

Attorneys Lee and Earley said the girls may not be guilty of anything more than being immature, and simply doing what a lot of kids their age do when they get in trouble: lie to get out of it.

"It sounds like an adolescent tale gone awry," Lee said.

A "very, very big lesson"? Middle school opprobrium? Well then, we can just dispense with any real consequences! Are you kidding me? This isn't a very special episode of Blossom, folks. These little miscreants put an innocent man in the klink for the better part of a year. He was facing up to five years of incarceration if convicted. One of the girls had already testified at his trial in lurid detail before their duplicity came to light. To treat this episode as a matter of immaturity simply will not do. Even children are capable of appreciating the injustice of sending someone to jail under false pretenses.

(Links via Obscure Store.)

Posted by Curmudgeonly Clerk at 07:57 PM | Comments (6)

February 11, 2004

The First Amendment at Univ. of Colorado

Yet another university has put the kibosh on an anti-affirmative action bake sale, arguing, rather ironically, that allowing the political protest would violate the Civil Rights Act of 1964 and the university's non-discrimination policy. I previously wrote about the First Amendment implications of the suppression of a similar event at Southern Methodist University. Given that the university involved in this lastest instance is a public institution, its conduct seems like a pretty straightforward constitutional violation. The University of Colorado has other high-profile legal problems as well.

Update: UC-Boulder: silencing unwanted speech one way or another. (Link via Instapundit.)

Update II: Speaking of other high-profile problems . . . . The difficulties are not legal this time, though they could have been. C.U. sure sounds like a classy place.

Posted by Curmudgeonly Clerk at 11:15 AM | Comments (16)

Bigotry and the Constitution

The admirably mild-mannered Eugene Volokh is on a roll concerning Dahlia Lithwick's argumentation about the proposed Federal Marriage Amendment. Setting aside Volokh's criticism of the nature of her arguments, Lithwick's contention that ratification of the Amendment would constitute the first use of "the Constitution to codify bigotry" is rather dubious as well.

Even assuming arguendo that Lithwick is right concerning the issue of bigotry, it is a trifle strange to characterize the proposed Amendment as potentially the first constiutional codification of bigotry. Notwithstanding the fact that the Constitution was established to, in the words of its preamble, "secure the Blessings of Liberty," that document distinguished between "free Persons" and those who were merely to be counted as "three fifths" of a free person. Art. I, § 2, cl. 3. Another Article protected the institution of slavery from federal intervention for twenty years. Art. I, § 9, cl. 1. Yet another safeguarded the institution of slavery from any legislation that might be enacted by the states. Art. IV, § 2, cl. 3.

Surely bigotry had something to do with the institution validated by these constitutional provisions. If one wanted to effectively make the sort of bigotry-related argument that Lithwick puts forward, wouldn't he/she be better served by drawing a parallel (however strained it may be) to the aforeaid constitutional provisions rather than resorting to the sort of rhetorical overreaching that Lithwick engages in?

Update I: I see that Eric Soskin of Ex Parte arrived at the same conclusion regarding the Constitution and bigotry.

Update II: Unlearned Hand also made the same observation.

Update III: Three Years of Hell features some related commentary on fair-weather federalism.

Update IV: Publius makes the very argument that I suggested might be more sensible concerning the proposed Amendment and bigotry.

Posted by Curmudgeonly Clerk at 09:39 AM | Comments (0)

Hell-Fire and Tort Liability

Overlawyered drew my attention to this Associated Press story:

A state District Court judge has thrown out a lawsuit against a Roman Catholic priest over his remarks at a former Chama councilman's funeral.

And what were the remarks in question?

Ben Martinez's family took the priest to court for allegedly condemning Martinez to hell at his own funeral in June 2002.

The lawsuit suggested Mansfield [the priest] was upset that Martinez had not been to church in the last year of his life, even though he had been too ill to attend Mass.

* * *

The lawsuit alleged the priest said God vomited people like Martinez into hell and that Martinez had been a Catholic in name only.

Another report indicates that the priest's obloquy was peppered with obscenities as well. The priest denies that he made any such remarks, but the lawsuit's pre-trial dismissal is not (and could not be) premised on such a factually disputed matter. (For whatever it's worth as evidence to the contrary, the priest was subsequently transferred, allegedly as a routine staffing matter.) Instead,

Judge Stephen Pfeffer dismissed the lawsuit against the Archdiocese of Santa Fe and the Rev. Scott Mansfield, ruling Jan. 23 that no court should be in a position to determine church doctrine.

* * *

However, Pregenzer [the priest's attorney] said the First Amendment prevented the court from analyzing whether Mansfield's statements were secular or religiously based and also from delving into matters of religious doctrine and faith.

"The court would have had to determine whether Ben Martinez was a sinner in order to decide the case," she said.

Pfeffer said the case is a "classic example of the constitutional privilege of separation of church and state."

The plaintiffs brought causes of action for defamation, negligent supervision, and intentional infliction of emotional distress. The judge's ruling is unquestionably correct regarding the defamation claim. Although I am no expert on this area of the law, dismissal the intentional infliction of emotional distress claim strikes me as being a far more complex matter. The judge's decision is not necessarly mistaken as to this cause of action; however, contra Overlawyered, the issue seems rather more debatable.

With regard to the defamation claim, the judge's ruling and Pregenzer's characterization of the ruling makes perfect sense to me. In New Mexico, the elements of a defamation claim generally "include: a defamatory communication, published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff." Newberry v. Allied Stores, Inc., 773 P.2d 1231, 1236 (N.M. 1989). Truth is an affirmative defense to defamation. Clough v. Adventist Health Syss., Inc., 780 P.2d 627, 632 (N.M. 1989). Although the priest disavowed the allegations altogether, it seems self-evident that the affirmative defense, if pled in the alternative, would have required the court to adjudicate the Martinez's status in the afterlife, if any. This courts cannot do. See generally United States v. Ballard, 322 U.S. 78, 85-88 (1944).

However, because the truth of the priest's alleged remarks plays no role in a claim for intentional infliction of emotional distress, it is less clear that the First Amendment should shield him from any potential liability thereunder. In New Mexico, "[t]he following elements must be proven to establish a claim of intentional infliction of emotional distress: '(1) the conduct in question was extreme and outrageous; (2) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (3) the plaintiff's mental distress was extreme and severe; and (4) there is a causal connection between the defendant's conduct and the claimant's mental distress.'" Trujillo v. Northern Rio Arriba Elec. Co-op, Inc., 41 P.3d 333, 342 (N.M. 2001) (quoting Hakkila v. Hakkila, 812 P.2d 1320, 1330 (N.M. Ct. App. 1991) (Opinion of Donnelly, J.)). Hence, the claim for intentional infliction of emotional distress applies whether the statements in question are true or not. The accuracy of the alleged remarks are entirely beside the point, and a court need not ponder the theological truth or falsity of the statements in question. In short, Martinez could be roasting in Hell, but that fact would not preclude recovery.

Now, perhaps, the First Amendment, via elaboration in caselaw, nonethless precludes (or should preclude) remarks of this sort from serving as the basis of a claim for intentional infliction of emotional distress. An expert, like Professor Volokh, may be able to shed some light on this matter. (He has previously written on this case, concluding that it is "not an open-and-shut position as a matter of current First Amendment law," but he also indicated without explication that he thinks the First Amendment ought to preclude liability in a case like this one.) However, whatever First Amendment concerns may be implicated, they are not so one-sided as to render the plaintiffs' claim obviously legally insufficient.

In Fowler v. State of Rhode Island, the Supreme Court opined that it is not "in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings." 345 U.S. 67, 70 (1953). But the facts in that case indirectly concerned the purported truth or worthiness of the content of the religious message at issue. Or more precisely, the issue concerned whether a particular Christian denomination could be prosecuted under a statute due to the unpopuarity of its beliefs or practices while others were not. Id. at 68-70. The Court, of course, held that such a prosecution was improper and did so on the basis of the First Amendment. Cf. id. at 70 (Frankfurter, J., concurring) (relying instead on the Equal Protection Clause of the Fourteenth Amendment).

However, it is important to understand what portion of the First Amendment is at issue in these religious speech cases. We are not talking about the Free Speech Clause, which would not generally appear to pertain to a claim for intentional infliction of emotional distress premised on speech. Cf. Hustler Magazine v. Falwell, 485 U.S. 46, 53-57 (1988) (disallowing intentional infliction of emotional distress claim stemming from parody of public figure). It is the Free Exercise Clause and, perhaps, the Establishment Clause that are relevant. A California appellate court opinion that discusses the intersection of tort law and the Free Exercise Clause offers some perspective as to the import of the foregoing legal observation:

Molko was an action for fraud, intentional infliction of emotional distress, false imprisonment, and restitution against the Unification Church by former members who had left the church after going through a "deprogramming" process. The action was based on alleged misrepresentations by church members during the initial recruitment of plaintiffs as to the organization's religious affiliations, and on threats of divine retribution and other allegedly coercive activities after the plaintiffs became members. The trial court granted the church's motion for summary judgment. A unanimous panel of this court affirmed that ruling, because we believed the plaintiffs could not pursue their tort claims without offending the church's rights under the free exercise clause of the First Amendment. The Supreme Court [of California] found no such problem, however, and reversed our decision.

Noting that "judicial sanctioning of tort recovery constitutes state action sufficient to invoke the same constitutional protections applicable to statutes and other legislative actions," the court set forth the applicable constitutional principles: "The religion clauses protect only claims rooted in religious belief. . . . However, while religious belief is absolutely protected, religiously motivated conduct is not. Such conduct 'remains subject to regulation for the protection of society.' Government action burdening religious conduct is subject to a balancing test, in which the importance of the state's interest is weighed against the severity of the burden imposed on religion. The greater the burden imposed on religion, the more compelling must be the government interest at stake. A government action that passes the balancing test must also meet the further requirements that (1) no action imposing a lesser burden on religion would satisfy the government's interest and (2) the action does not discriminate between religions, or between religion and nonreligion."

Applying these principles to the plaintiffs' fraud claim, the Supreme Court determined that the trial court could, without questioning the authenticity and force of the Unification Church's religious teachings, accept the view of the plaintiffs' experts that the plaintiffs did not willingly submit to the religious teachings of the Unification Church because the psychological techniques of the church deprived them of the ability to reason critically and make independent judgments. According to the Supreme Court, "liability for fraud in the case at bar would burden no one's right to believe and no one's right to remain part of his religious community . . . ." The Court concluded that the state's interest in allowing tort liability for the church's deceptive practices outweighed any burden such liability would impose on the church's religious conduct, and no less restrictive alternative was available.

Noting that "in appropriate cases courts will recognize tort liability even for acts that are religiously motivated," the court endorsed the view that religious organizations (and, by implication, members of the clergy) may be held liable for intentional torts where liability can be adjudicated on the basis of neutral principles requiring no inquiry into the validity of a religious belief or practice. This view is consistent with that of the United States Supreme Court [citing Ballard], and the widespread common law rejection of the "charitable immunity" from tort liability the clergy once enjoyed.

Richelle L. v. Roman Catholic Archbishop, 130 Cal. Rptr. 2d 601, 613-15 (Cal. App. Ct. 2003) (internal citations omitted).

Now interestingly, in the referenced Molko opinion, the Supreme Court of California flatly stated that "threats of divine retribution . . . were protected religious speech and could not form the basis of a claim of intentional infliction of emotional distress." Molko v. Holy Spirit Ass'n., 252 Cal. Rptr. 122, 137 (Cal. 1988) (relying on Fowler). The Molko court considered the intentional infliction of emotional distress claim before the court in that case to be legally viable solely to the extent that it relied on the same factual underpinnings as the fraud claim (i.e., "misrepresetation and concealment"). Id. However, the precise boundaries as to what forms of religious speech and expression are legally non-actionable as a result of the First Amendment are unclear across the various United States jurisdictions. Compare Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 881-99 (Cal. App. Ct. 1989) (affirming validity of intentional infliction of emotional distress claim premised on religious practices of "auditing," "disconnect," "fair game," and "freeloader debt"), vacated on other grounds, 499 U.S. 914 (1991), and Carrieri v. Bush, 419 P.2d 132, 135-37 (Wash. 1996) (recognizing cause of action for alienation of affections "committed in the guise of religious teachings" by pastor who stated that husband was "'full of the devil'" and advised wife to disregard him and threatened her with damnation), with, In re Pleasant Glade Assembly of God, 991 S.W.2d 85, 88-90 (Tex. App.—Fort Worth 1998, no pet. h.) (holding that an intentional infliction of emotional distress claim could not be premised on ritualistic casting out of demons).

Nonetheless, drawing on the reasoning elaborated in Richelle L., because the adjudication of an intentional infliction of emotional distress claim may be tried "on the basis of neutral principles requiring no inquiry into the validity of a religious belief or practice," why should such a suit be barred by the First Amendment? Although the record is not clear from the few news articles that have appeared, it does not appear to be absolutely beyond doubt "that the specific acts complained of were conduct engaged in pursuant to church doctrine." Snyder v. Evangelical Orthodox Church, 216 Cal. App. 3d 297, 307 (Cal. App. Ct. 1989). That is, it is not clear that the priest's alleged remarks were made pursuant to church doctrine or practice or uttered for a religious purpose. Indeed, if the allegations, which include profuse profanity, are any indication, these remarks, may lack any genuine religious content despite their context. If the utterances were religious in nature, liability for intentional infliction of emotional distress would apparently depend on the balancing test previously described in the passage of Richelle L. excerpted supra. Snyder 216 Cal. App. 3d at 308-09. Regardless of the circumstances, "it is insufficient for [defendants] to no more than generally allege, as a substantive defense to tort liability, that their conduct was religious in nature." Id. at 310.

Without providing the analytical particulars, my surmise is that the priest's remarks regarding Martinez were religious in nature and, therefore, the plaintiffs' intentional infliction of emotional distress claim was subject to the sort of balancing test described above. Moreover, I am inclined to think that the balancing test largely weighs in favor of the defendants. However, I am less than certain.

Perhaps, I can indicate the source of my uncertainties via another not-so-hypothetical example. Consider the religious endeavors of the Reverend Fred Phelps. Among other things, Phelps "travels nationally to picket the funerals of homosexual victims of murder, gay-bashing or death related to AIDS" and maintains the website God Hates Fags. His latest antics are somewhat reminiscent of the the speech-related antics concerning Martinez:

According to the Associated Press, the preacher wrote a letter to city officials in Lebanon, Pennsylvania, seeking permission to put a 6-foot granite slab in a city park. The monument's message would condemn Wheeler [a homosexual teen], who lived in Lebanon before committing suicide in 1997.

The proposed inscription reads: "In loving memory of Jim Wheeler, entered hell November 17, 1997, at age 19, a suicide who defied God's warning."

* * *

Last year parks in Kansas, Wyoming and Idaho turned down requests from Phelps and his Kansas-based Westboro Baptist Church for a granite monument with an inscription about slain gay teen Matthew Shepard entering hell.

Shepard died in 1998 after being beaten and tied to a fence outside Laramie, Wyoming. Phelps and his followers picketed the young man's funeral with signs bearing such messages as "God hates fags."

For more details on Phelps's most recent activities, see John Latimer, County Fires Pre-Emptive Shot, Lebanon Daily News, Feb. 6, 2004. The Anti-Defamation League's website contains further background information on Phelps.

Phelps's undeniably religious expression easily satisfies the traditional elements of an intentional infliction of emotional distress claim. But it is difficult not to view tort liability for the expression of such beliefs, even via appalling conduct like picketing a funeral, as an encroachment on the rights guaranteed in the First Amendment. If one is inclined to accept liability in such situations, what principled distinctions may be made concerning a sermon, editorial, or other public remarks that unapologetically express the traditional Christian doctrine regarding homosexuality? Although civil damages for such conduct are nowhere near as onerous as erstwhile criminal defamation statutes, which were once unsuccessfully wielded against Phelps, they would pose a substantial burden to religious free expression on controversial issues.

However, my conclusion is tentative and largely intuitive. Although I hew to the teachings of traditional Christianity, even I am grossly outraged by Phelps's conduct. I tend to think that a contrary rule, one which resolved the balancing test in other than Phelps's favor would have the same sort of insidious effect on free exercise that Kempling v. British Columbia College of Teachers would have if it were the law in the United States. But I have difficulty concluding that no reasonable person might disagree.

Posted by Curmudgeonly Clerk at 12:12 AM | Comments (1)

February 10, 2004

My Beef With Weblogs

Kevin Heller, who is undoubtedly more tech-savvy than I am, disagrees with my assessment of weblogs and their effect on Google. I have received other contrary assessments via comment and e-mail. For example, Joshua indicated that weblogs can be excluded from search results (almost) altogether by adding a minus sign in front of the word "blog" (i.e., -blog) in one's search.

Perhaps, the failing is mine, but allow me to describe what I perceive as the problem created by weblogs. First, however, let me clarify what my complaint is not. I am not carping about the sheer mass of new content or its quality (or lack thereof). I often find weblog content to be educational or entertaining, though these qualities are, perhaps, not reflective of the blogosphere as a whole. So I would just as soon not filter out all (or even the majority of weblogs) from my Google searches.

The problem, as I see it, is that most weblogs are archived either weekly or monthly. So let's say that I perform a search with five terms: "v" + "w" + "x" + "y" + "z". Now, because weblogs are archived weekly or monthly, my search will be pick up a weblog in my results even if my search terms are spread out over multiple, unrelated entries that were written over the course of a week or a month. That is, my five search terms will likely not occur in the same weblog entry/post, but rather will be spread out piecemeal over several posts, which dramatically reduces the chances that the weblog in question is pertinent to the topic that I am researching.

For example, let's assume that "Anyblog" shows up in my search results. "Anyblog" is archived weekly, and the particular archive of "Anyblog" that is in my search results has five entries/posts for the week in question. But rather than all five of my search terms appearing in one topical post, one of my terms appears in each of the five very non-topical entries (i.e., term "v" appears in Post No. 1, term "w" appears in Post No. 2, etc.).

No doubt, some of my difficulties may be resolved via better, more refined searches. Likewise, weblogs are not the only form of Internet content that produces such "false" hits. But as weblogs proliferate, I think that this particular difficulty will only get worse absent some innovation. Of course, I could be wrong too. (This matter is far from my area of expertise.) Indeed, this is one instance in which I would be delighted to be wrong.

Posted by Curmudgeonly Clerk at 09:17 AM | Comments (4)

February 09, 2004

Justice Ginsburg And The PATRIOT Act

Like most things written about the PATRIOT Act, this Albany Times Union editorial is patently silly. Consider how it begins:

Until now, the debate over the Patriot Act has been lopsided. Those who defend the law, which was passed in haste by Congress in the aftermath of the 9/11 terrorist attacks, have had Attorney General John Ashcroft as a powerful spokesman.

* * *

The other side of the debate has not been so high-profile. . . .

Yes, those raising concerns about the Act are terribly low-profile. The critics are practically nobodies. It's Ashcroft versus the sound of chirping crickets. Links like the foregoing ones are so ubiquitous that it is hardly wothwhile to provide them.

What is more interesting is the editorial's reportage of remarks by Justice Ginsburg:

But now comes a powerful voice to make the case [against the PATRIOT Act] as well. It is none other than Supreme Court Justice Ruth Bader Ginsburg, who is warning against citizen apathy. Her views have added significance because the Supreme Court will soon hear several challenges to government anti-terrorism methods, including indefinite detention of U.S. citizens and foreign nationals suspected of having ties to al-Qaida.

Indeed, it is likely that any legal challenge concerning the Act, such as this one (full opinion available here), will eventually end up in front of the Court. Speaking of the sound of chirping crickets, isn't it interesting how the usual suspects have nothing to say about a justice making public remarks that can be construed as indicating a certain partiality on issues likely to appear before the Court? I am not overwrought over the matter, but the comparative silence is telling.

(Times Union link via How Appealing.)

Posted by Curmudgeonly Clerk at 10:14 AM | Comments (3)

February 08, 2004

The Limits Of Libertarianism

A few days ago, I penned an entry regarding the nature of moral disgust and its implications for libertarianism. I concluded that:

I think that [this] suggests that libertarianism has its limits—even among its supposed adherents. I suspect that few, if any, persons are true libertarians in moral matters. The libertarian no-harm principle simply fails to account for intuitional moral misgivings that each of us possess and that serve as the foundational assumptions of our respective worldviews. Libertarians frequently attempt to sidestep such when-push-comes-to-shove moments by denying that an activity "x" is, in fact, harmless. But, ultimately, we are all legislating our morality. Some people are just more honest about it than others.

This conclusion has drawn responses from Stephen Bainbridge, Will Baude, and Timothy Sandefur, each of which deserves a reply.

One thing that all of the responses have in common is the notion that Bainbridge is not a libertarian, but rather possesses mere libertarian leanings. (You'll recall that my musings were prompted by an earlier post by Bainbridge.) I think that this reply has some merit, but that its merit can also be overestimated.

It would be uncharitable to draw conclusions about the nature of libertarianism on the basis of views held by those who shared little or nothing in common with that particular perspective. But I suspect, as with most perspectives, libertarianism is espoused few are purists. People may tend toward liberal inclinations, conservative instincts, or libertarian leanings, but almost none are ideologues.

In addition, this assertion that Bainbridge is a poor proxy for exploring libertarian assumptions insinuates that, as an ideology, libertarianism is monolithically uniform in nature. It is not clear to me that this is the case. Indeed, it would appear that libertarian thought does not occur in only one variety that may be labeled as pure or true libertarianism. So the claim that critiques of libertarianism are valid solely when they pertain to the beliefs of bona fide libertarians strikes me as being problematic.

Setting the foregoing reservations aside, it is unfair to put words in another's mouth. Arguments seeking to counter beliefs that one's opponents do not, in fact, hold are such a common and discredited practice that they have a specific name: strawmen. However, a thoughtful qualification by the very principled Sandefur establishes, I think, that my observation about the limits of libertarianism is not a strawman. Sandefur writes that:

I can’t say that [libertarians] . . . always act consistently with our principles. My own weak spot is quackery: I find it exceedingly hard to defend the rights of quack doctors, faith healers, astrologers, and whatnot—but I do try to.

Sandefur would, no doubt, try to limit the damage of such a concession by noting that these are personal, human failings, failing of application rather than a failure of the logic or doctrine of libertarianism. However, this is of little consequence. In the end, the personal morality of libertarians, as opposed to libertarian principles, is bound to play some role in libertarian thought. The only real question is the extent that personal moral assessments (i.e., what Bainbridge labeled "the yuck factor") shape and define libertarianism.

But before we discuss the extent, let's take note of the significance of the discovery that moral disgust plays any role in shaping libertarian beliefs. Libertarians are fond of portraying their movement solely as one of state neutrality or governmental non-intervention in matters moral. Sandefur's own distillation of libertarianism is premised on this notion, as is Baude's. The realization that moral disgust will have some creeping influence on the views of libertarians is significant precisely because libertarians swear that what sets them apart from conservatives and liberals is their absolute moral neutrality in matters of public policy.

Having said that, I get the impression that so-called libertarians are far from neutral. That is, the extent to which the moral disgust of individual libertarians plays a role in their policy positions is rather understated. Baude, relying on the overemphasized notion of libertarian authenticity, writes:

. . . [S]how me the Reason folks calling for moralistic legislation, and that would well support the Clerk's claim.

I take it that Sandefur also regards the folks of Reason magazine to be "genuine libertarians" as well, given his citation of Julian Sanchez.

While I have no such examples regarding specific legislation, Michael Rappaport has identified a screed from Reason that amply demonstrates that these folks are not advocating mere non-intervention by the state in America's omnipresent kulturkampf. The Reason article, from December of 2003, is entitled 35 Heroes of Freedom. Among Reason's cultural paladins are the following:

Madonna. As one of the first music video megastars, the Material Girl led MTV’s glorious parade of freaks, gender-benders, and weirdos who helped broaden the palette of acceptable cultural identities and destroy whatever vestiges of repressive mainstream sensibilities still remained. Along the way, her continuous self-fashioning has brought so many avant-hip trends to the masses that we can even forgive her current fake English accent and children’s book phase.

* * *

Dennis Rodman. As a cross-dressing, serially pierced, tattoo-laden, multiple National Basketball Association championship ring holder, the Worm set an X-Men-level standard for cultural mutation. His flamboyant, frequently gay-ish antics place him in apostolic succession to a madcap handful of athletes such as Joe Namath, Rollie Fingers, and Muhammad Ali, all of whom challenged the lantern-jawed stiffness that had traditionally made sports stars such dull role models.

As Rappaport notes, these examples aren't about state neutrality or non-intervention, but societal acceptance. The views being espoused are indistinguishable from social liberalism.

Rappaport characterizes Reason's position as a indicative of intellectual internecine conflict amongst libertarians themselves. He writes:

There is an old debate about what constitutes a limitation on liberty. John Stuart Mill believed that when A criticizes or refuses to interact with B because A disapproves of B’s behavior, A infringes on B’s liberty. By contrast, Nozickian libertarians believe that such criticisms and refusals to interact are merely the exercise of A’s liberty and does not infringe on B’s rights. After all, there is no violence or fraud.

Significantly, there is much more of an overlap between libertarians and conservatives under Nozick’s definition of liberty. People can voluntarily choose to follow "conservative norms" and libertarians should defend them.

But both conservatives and libertarians are often unwilling to accept this principled position. Some conservatives believe allowing legal freedom to act will lead people to behave in licentious ways. They view American freedom as leading to an MTV world of trash and therefore embrace legal restrictions on people's behavior. While libertarians rightly criticize this view, they also are often unwilling to live with the principled position: they adopt the Millian view, embrace people who depart from traditional ways, and condemn those who criticize or refuse to interact with the unconventional. By proclaiming Madonna and Rodman heroes of freedom, Reason appears to be adopting this view.

Elsewhere, one recent commentator, relying on the notion of moral disgust in making an argument, identified Mill's harm principle as the sine qua non of modern liberalism. Rappaport appears to view the Millian position adopted at Reason to be uncharacteristic of libertarians in general (i.e., a minority position among libertarians). The fact that Baude and Sandefur, both principled liberatians, each appear to consider Reason as the voice of libertarian thought may suggest otherwise. On this internal conflict within libertarianism, Sandefur appears equally conflicted, which does little to assauge my concerns about the non-neutrality of libertarianism.

The import of this matter cannot be overstated. One vision of libertarianism looks like this, while the other resembles this. Increasingly, the latter seems to me more characteristic of libertarian thought in America. Ironically, the folks at Reason also salute Larry Flynt among their thirty-five heroes for "helping to strengthen First Amendment protections for free expression" from a "coalition between social conservatives and puritanical feminists." What they fail to perceive is that their embrace the Millian view places them on an inevitable collision course with the First Amendment. Indeed, the impact has already occurred. The only thing that remains to be seen is the final outcome.

Update: Professor Rasmusen has some commentary on (varieties of) libertarianism and morality here.

Posted by Curmudgeonly Clerk at 01:35 PM | Comments (1)


This article by Sean Carter reminds me of my favorite lawyer joke:

Q: What do lawyers use for birth control?

A: Their personalities.

Judging by Ipse Dixit's reaction, he had the same exact thought.

Posted by Curmudgeonly Clerk at 11:20 AM | Comments (0)

February 07, 2004


This childishly executed disquisition is not entirely without merit. The author is right about one thing: weblogs have seriously reduced the utility of Google. Of course, this is not the only problem afflicting it and similar search engines. Pornography poses a problem as well. For example, while writing this post, I initially ran searches concerning bestiality and incest. What a mistake! All I wanted were stories from the news, but that's hardly what I got. Thankfully, Google has a variant version that allows one to exclusively search news sources. But there does not appear to be any way to search the web in general while excluding weblogs.

Posted by Curmudgeonly Clerk at 11:09 AM | Comments (2)

February 06, 2004


One of the recurring memes of the blogosphere is the dastardly nature of anonymous bloggers. Given that I maintain my weblog on an anonymous basis—for reasons having to do with the Code of Conduct for Judicial Employees—it will probably come as no surprise that I do not share this negative assessment of anonymous blogging. I also doubt that I could be persuaded otherwise.

Notwithstanding the firmness of my views, critics of anonymity aren't exactly making persuasive arguments. The vastly overrated Andrew Sullivan offers up this criticism:

Anonyblogger Atrios recently called the New York Times' Nick Kristof "human scum." Welcome to the pond, Nick! Of course, Atrios is immune from personal attacks because he's anonymous. Salon picks up on the double standards here.

Among other things, the Salon article remarks that:

But what about the hypocrisy in attacking others while protecting oneself from any sort of retaliation?

* * *

Not surprisingly, journalism experts suggest anonybloggers are operating outside of any reasonable ethical line. "One of the things that's going to have to become a standard for the Internet is, if you want to be taken seriously, you have to be identified," says Alex Jones, director of Harvard's Shorenstein Center. "Anonymity is almost always, for the mainstream anyway, something that says, 'Be very, very careful.'"

There is something slightly comical about journalists, who frequently rely on anonymous sources that they refuse to identify, hectoring bloggers about anonymity on the ground that anonymity equals unreliability. Indeed, reliability is not a topic about which journalists should be piously lecturing others. In addition, it is not clear to me that the content of a weblog is rendered any more reliable on the basis of self-identification. There is, after all, plenty of bunk on websites operated on a non-anonymous basis.

Profanity and vitriol are oft repeated counts in the various indictments against anonymous bloggers. Sullivan and Salon both dwell on Atrios in this regard. Although Bill Hobbs does not mention Atrios, he does link to the referenced Salon article and comments as follows:

My experience with anonymous bloggers is exactly that and more. Anonymous bloggers often allow cretinous behavior in their comments sections.

* * *

An anonymous blogger might tell you he can't blog because his employer might not like it, or his customers—so just trust him that he is who he says he is. Hogwash. He just wants the freedom to behave badly, slander with impunity, and spread lies.

I happen to like Hobbs's weblog, but I think we all recognize that there is not an argument to be found in the foregoing tirade. In fact, his assertions are pretty silly and readily refutable. More than one legal blogger has had to call it quits for employment-related reasons. So it is not difficult to understand why some might wish to avoid such difficulties through anonymity.

Another thing that I simply cannot fathom about this bill of particulars is the apparent notion that profanity and vitriol are phenomena that are the exclusive preserve of anonymous weblogs or that anonymous bloggers are particularly profane or vitriolic. I don't think that a farreaching look into the blogosphere will sustain this charge. One encounters vile language with some frequency in most quarters of the Internet. The cretinous behavior that Hobbs decries is tolerated in the the comments sections of non-anonymous weblogs as well. Indeed, the blogosphere has ritualized and institutionalized vitriol in the form of "Fisking." Politeness and gentility are certainly not norms of weblog discourse.

The reply to this observation is undoubtedly that those who blog under their own name are taken to task for their excesses. Bloggers who are upfront about their identities are supposedly personally accountable. However, I find this to be an unpersuasive rejoinder for three basic reasons.

First, it seems to me that even anonymous hacks like Atrios may be brought to account in some sense. No, his surname will not forever be blackened by his conduct, but there is one simple, very effective means of retribution that those who disapprove of him may take: refuse to visit his site and refuse to link to it as well. The blogosphere is a marketplace of ideas. We shop where we choose.

Second, it is not clear to me that the people who cry out for accountability truly believe in it. Andrew Sullivan, for example, has informed his readers that he'll be appearing on HBO's Real Time with Bill Maher in the near future. Look, I think Maher is okay, but I've seen his show and its predecessor. Civility, decency, and purity of language aren't exactly his hallmarks. Given Sullivan's willingness to associate with Maher, I cannot help but think that something else is behind his condemnation of Atrios. I am not a fan of Atrios, but I have this sneaking suspicion that anonymity is just a proxy for other, unarticulated gripes.

Third, it is obvious to anyone with a minimal amount of technical know-how that anonymity on the Internet is generally a myth. Andrew Sullivan undoubtedly understands the precarious nature of online anonymity. Atrios's anonymity was potentially in jeopardy of being revealed via frivolous litigation not too long ago. More than one reader has written in to tell me that they know exactly who I am, and the Internet provides means of tracking down information on most websites. Anonymous or pseudonymous online ne'er-do-wells tend to be found out. In short, if push comes to shove, the veil of anonymity adopted by some bloggers can (and likely will be) brushed aside.

Finally, I think that I would be remiss if I did not note that this country has a long and glorious history of anonymous publication. The virtues of anonymous speech are such that the Supreme Court has seen fit to grant it constitutional protection. The words of the Court are ample rejoinder to the sort of petty criticism being bandied about in the blogosphere:

"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

* * *

"Of course, the identity of the source is helpful in evaluating ideas. But 'the best test of truth is the power of the thought to get itself accepted in the competition of the market.' Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is 'responsible', what is valuable, and what is truth."

* * *

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

McIntyre v. Ohio Election Comm'n, 514 U.S. 334, 341-42, 349 n.11, 357 (1995) (internal citations omitted).

Justice Thomas's concurrence contains a wealth of information concerning anonymous publication in the early years of the Republic and prior thereto. Id. at 360-69 (Thomas, J., concurring). Among the earliest of American anonymous political authorship are the esteemed Federalist Papers. Viewed in this light, I find the sort of broadstroke, indiscriminate vituperation of anonymity to be a trifle un-American.

Addendum: Numerous others have commented on this topic. Aside from those mentioned above, thoughts on this general issue may be found at Crescat Sententia, Daniel Drezner, D.F. Moore, Jonah Goldberg I and Jonah Goldberg II, Gothamist, Instapundit, Roger Simon, Slithery D, and Truth Laid Bear.

Update I: Legal Fiction points out this defense of pseudonymous writing by Nick Confessore.

Update II: I am informed that complete anonymity is technologically feasible. Though it does not seem common among bloggers, at least one weblog service appears to be directed toward anonymous publishing. Other services available on the Internet purport to allow for the sending of anonymous e-mail and such. I don't doubt that many devices for maintaining anonymity exist, but few bloggers appear to have the sort of technical knowledge base necessary to effectively employ them.

Posted by Curmudgeonly Clerk at 12:48 AM | Comments (5)

February 05, 2004

The Yuck Factor Revisited

Dog may not be on the menu in Chinese restaurants in the United States, but the association, however misplaced in this country, is not an utter fiction. Canine cuisine is available in bona fide Chinese restaurants. My honest reaction to this circumstance is: Yuck! I think these sorts of differing cultural predilections and perspectives are yet another reason to doubt the "wisdom of repugnance."

Posted by Curmudgeonly Clerk at 10:33 AM | Comments (3)

February 04, 2004

Moral Disgust And The Law

Writing about Gunther von Hagens's grotesquery, Professor Bainbridge writes:

Yuck. Double yuck. I want it banned and the harm principle can be damned. Do I have a reasoned analysis of how to fit the yuck factor into a coherent political theory? No. And I don't care. Some things are just too yucky for a civilized society to tolerate. This is what Leon Kass calls the "wisdom of repugnance," which is hard to square with a generally libertarian world-view but nevertheless makes good sense to me in this case and a number of others.

Leon Kass describes the purported wisdom of repugnance as an instinctual repulsion regarding matters that are beyond rational argument. Kass writes:

Revulsion is not an argument; and some of yesterday's repugnances are today calmly accepted—though, one must add, not always for the better. In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason's power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or even just (just!) raping or murdering another human being? Would anybody's failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of in-breeding.

Of course, such assumptions about what is revolting are not universally shared. This Mobile Register story demonstrates that consensual father-daughter incest is not nonexistent. Similarly, bestiality is apparently on the rise in Sweden, for example. Although these predilections may be statistically marginal in some sense, some simple Google searches will reveal that afficionados of incest and bestiality are substantial enough to support a market of related pornography. Cannibalism too has its devotees. As for von Hagens's ghoulish enterprise, at least one blogger has failed to register the same repugnance for it that Bainbridge feels. Of what use is Kass's theory then if it does nothing more than restate majoritarian moral assumptions as moral truths?

Kass's theory is not premised on universal moral opprobrium, but rather the condemnation of some comfortable majority. Or so I presume, as shared moral sentiment on some scale is the only retort that can preserve Kass's "wisdom of repuganance" from the aforementioned fact that humanity possesses no universally held moral assumptions. Viewed in this light, it is difficult not to see his reasoning as a justification of any and every contemporary moral assessment and societal arrangement, an unthinking defense of the status quo. Historically, human societies have accepted without question any number of institutions now regarded as morally depraved (e.g., slavery). No doubt, the world of tomorrow will condemn some of our present day moral judgments. Public assessments of morality are not static. A short time ago, the "wisdom of repugnance" would have assured all reasonable Americans that homosexuality and sodomy (even of the heterosexual variety) were anathema. These positions are now tenuous to say the least.

It is hard to avoid the fact that Bainbridge has no argument whatever. His stance is founded on sheer moral ipse dixit. Apart from pretending that Leon Kass's theory has any explanatory value, Bainbridge is quite candid regarding this fact. The problem, as Bainbridge acknowledges, is that his moral intuition is incompatible with genuine libertarianism. If the State of Texas is not entitled to its moral intuitions, then what entitles Bainbridge to his? Or, to state the libertarian premise more precisely, why should Bainbridge's moral disgust alone justify a prohibition, even if it is shared by a majority of the polity?

I think that Bainbridge's post suggests that libertarianism has its limits—even among its supposed adherents. I suspect that few, if any, persons are true libertarians in moral matters. The libertarian no-harm principle simply fails to account for intuitional moral misgivings that each of us possess and that serve as the foundational assumptions of our respective worldviews. Libertarians frequently attempt to sidestep such when-push-comes-to-shove moments by denying that an activity "x" is, in fact, harmless. But, ultimately, we are all legislating our morality. Some people are just more honest about it than others.

Posted by Curmudgeonly Clerk at 01:29 AM | Comments (6)

Hammurabi's Code

The precept of "an eye for an eye, a tooth for a tooth" is unfailingly associated with Hammurabi. But have you ever read the extant text of the ancient Babylonian Code? It is quite fascinating. In particular, I found this provision noteworthy:

If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge's bench, and never again shall he sit there to render judgment.

An introduction to and brief commentary on the Code are available here and here.

Posted by Curmudgeonly Clerk at 12:07 AM | Comments (6)

February 03, 2004

Christianity & Criminal Sentencing

Another federal district judge, The Honorable Robert Cindrich, has resigned, citing the United States Sentencing Guidelines as the principal reason for his departure. Previously, The Honorable John S. Martin took early retirement for the same reason. Although I share much of the federal bench's sense of frustration with the current sentencing regime, Cindrich makes multiple provacative statements that I am less inclined to endorse.

One of the more interesting passages of the article on Cindrich concerns the proper role of Christian morality in criminal sentencing. Cindrich, who was nominated by President Clinton, stated that:

. . . [T]he Bible, particularly Jesus' message of love and forgiveness preached in the Sermon on the Mount, is a good guide for a judge considering how society should treat "our brothers and sisters who have transgressed the law."

He finds it ironic that some of the biggest boosters of the [United States Sentencing] [G]uidelines are those who profess to be intensely religious.

"I grit my teeth," he said. "I grit my teeth. I say to them, 'What parts of the Bible are you reading?'"

Given the role that religion has played in controversies surrounding multiple judicial nominees of the current administration, it is interesting to see Cindrich articulate his disagreement with the present guidelines as a matter of Biblical interpretation in part.

Setting aside any potential objection on the basis of the first clause of the First Amendment and its jurisprudence, I am less certain than Cindrich that the Sermon on the Mount offers very clear guidance concerning sentencing. Although it may constitute perfectly valid moral advice, Christ's sermon strikes me as potentially being antithetical to American legal proceedings in general. For example, it is written that Jesus stated that:

Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth:

But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.

And if any man will sue thee at the law, and take away thy coat, let him have thy cloke also.

Matthew 5:38-40 (King James).

The Sermon on the Mount also features this bit, which may be more pertinent to criminal affairs:

For if ye forgive men their trespasses, your heavenly Father will also forgive you:

But if ye forgive not men their trespasses, neither will your Father forgive your trespasses.

Matthew 6:14-15 (King James).

This thought is reiterated in the following chapter:

Judge not, that ye be not judged.

For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.

Matthew 7:1-2 (King James); see also Luke 6:37 (King James) ("Judge not, and ye shall not be judged: condemn not, and ye shall not be condemned: forgive, and ye shall be forgiven.").

Of course, this exhortation to "[j]udge not" could not possibly be adopted by federal judges in its most literal sense. More generally, no society could operate on such a principle. So one must assume one of the following: (1) that Jesus had something altogether different or more nuanced in mind; (2) that his message from the mount was not directed toward men's institutional adjudication of worldly justice; or (3) that he was a wild-eyed utopian whose preaching has no practical value. Whatever one might conclude, it is at least self-evident that the Biblical principles Cindrich references are not self-evident in their meaning or their application.

(Pittsburgh Tribune-Review link via Howard Bashman).

Posted by Curmudgeonly Clerk at 05:00 PM | Comments (3)

February 02, 2004

Distinguishing Between Desertion and Being A.W.O.L.

For reasons more partisan than sensible, the president's military service record is once again being debated. I find this debate without redeeming value, as it is primarily discussed by morons and has the potential to change no one's mind about our present military policy or this November's elections. But for those interested in a legal perspective on the matter, Slithery D has posted a balanced treatment of the issue in terms of the relevant military law. See also Law From The Center and Donald Sensing.

(Thanks to Intel Dump for some of these links.)

Update I: The Ciceronian Review has a somewhat contrarian assessment. In part, the proprietor of the C.R. writes:

The other funny thing is that folks are deeply distressed that Moore got the law wrong. An odd standard. Moore is not an attorney. Lawyers regularly get such stuff wrong, even law professors. . . . It is not a misuse of language for ordinary people to talk about someone who illegally leaves service during wartime as a deserter. It is not the law, but so what? Moore is not a prosecuting attorney, and we talk in such loose ways all the time.

I think that the C.R. could not be more mistaken. For starters, Michael Moore, by his own admission, is not engaging in "loose" talk. He has made a charge that is legal in nature, and it is legally ill-founded. When non-lawyers opine on topics of legal significance it is reasonable to expect them to know what they are talking about. Moreover, isn't it a bit of a stretch to classify Moore, an individual active in politics and who garnered his reputation via journalism of a sort, as just "ordinary people"? He is a public figure and he speaks with a megaphone that ordinary folks lack.

Lawyers do make mistakes about the law. However, such mistakes are generally acknowledged and corrected by professionals when they are publicly raised. As Moore's own website indicates, Moore has no intention of doing so, notwithstanding the furor that his reckless charges have since created. Indeed, we are no longer talking about an innocent mistake. Moore's conduct now falls into the realm of willful misstatement, which will come as no surprise to those familiar with Moore's past work.

Other non-lawyer public figures have been more measured in criticizing the president's military service record. For example, as reported in the Washington Post, Democratic National Committee Chairman Terry McAuliffe has made it a point of speaking of Bush being "A.W.O.L." rather than laying a charge of desertion. The same Post article quotes John Kerry as characterizing the charge of "deserter" as "'inappropriate, wrong and over the top.'" These are hardly persons inclined to treat the president with kid gloves.

Organizations that have rallied to Moore's defense, such as MoveOn, simply elide the distinction between being absent without leave and desertion altogether. In other contexts, MoveOn is rather more legalistic in its approach to public accusations. So it is hardly asking too much for it and its ilk to conform their words to the facts and the law.

The Ciceronian Review's apparent umbrage over my post is all the more odd given C.R.'s own conclusion, which begins by stating that:

It is wrong to say that Bush is a deserter.

In other words, the Ciceronian Review arrives at the same conclusion that I did, but nonetheless spends an entire post asserting that I am being terribly unreasonable in arguing that others ought to be as circumspect.

I suspect that the C.R.'s perspective on the accusations being bandied about are largely shaped by its conclusion on the merits. Immediately after the sentence quoted above, C.R. continues:

[Bush] was AWOL, which is something different. He thought political campaigning was more important than honoring his duty to appear and serve.

As stated in the foregoing Post article, the Bush campaign denies that the president was ever even absent without leave. Others have more forcefully stated Bush's case. So even when the Ciceronian Review concludes that Bush was A.W.O.L., it is engaged in (partisan) speculation. In the absence of other evidence, I would not consider such speculation unreasonable, so long as it was not confused for substantiated fact. However, there is other evidence that indicates that such speculation is unwarranted. Tennessee journalist Bill Hobbs has written extensively on this issue.

So when the Ciceronian Review, commenting on my post, asserts that "Bush's defense is just what a criminal defense attorney would present," C.R. is entirely mistaken. As stated above, Bush's defense is that he utterly innocent of the charges being leveled against him. My post was not a defense in any sense. My very simple point was that Bush's most vociferous accusers have no idea what they are talking about no matter if the factual particulars are true as alleged or not.

Update II: Regarding the significance of lost military records, Nunc Pro Tunc offers this anecdotal assessment:

At first, it may seem incredible that a guy reported to an Alabama unit for an entire year, yet there is absolutely no record of it. But my own military experience leads me to give the President the benefit of the doubt on this one. Military records are notoriously incomplete and inaccurate. For the longest time, my OMPF (Official Military Personnel Record) indicated that I graduated from The Johns Hopkins Law School. There is no Johns Hopkins Law School. It took the better part of four years to correct the mistake.

Having served in the Army Reserve, I can testify that paperwork is not its forte as well. This is merely anecdote of course. It has no direct bearing on the issue at hand. However, I suspect that most military personnel could offer testimony regarding the frequent, perhaps routine, paperwork mishaps that accompany the military's bureaucracy.

Update III: For some background on the first time these charges surfaced in 2000, see this document by the Annenberg Political Fact Check.

Update IV: The Ciceronian Review is steadfast in its belief that I am mistaken.

Posted by Curmudgeonly Clerk at 12:33 AM | Comments (9)

February 01, 2004

Overlawyered's Inadvertent Arch-Nemesis

I see that I have inspired a new disclaimer:

Note that this post is in no way a comment on the litigious nature of our society, the non-litigious nature of our society, the state of lawyers, the law, equity, the common law, or the uncommon law (admiralty). The article does not say anyone is pursuing a class action, plans on pursuing a class action, or has any class whatsoever.

Apparently, I had better find other things to talk about for awhile.

Posted by Curmudgeonly Clerk at 11:46 AM | Comments (0)