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April 30, 2005

gamecocks and battered women

Don Herzog: April 30, 2005

Cockfighting is a misdemeanor in South Carolina.  So is domestic violence.  The state House Judiciary Committee just approved a bill to make cockfighting a felony.  With sublime timing, they also tabled a bill to enhance the penalties for domestic violence.

State Rep. John Graham Altman (R-Charleston) approved the cockfighting bill:  "I was all for that.  Cockfighting reminds me of the Roman circus, coliseum."  No pagan excesses for him!  And he approved tabling the domestic violence bill:  "I think this bill is probably drafted out of an abundance of ignorance."

TV news reporter Kara Gormley grilled Altman about the juxtaposition of the two bills, and — well, here's the excerpt:

Altman:  "People who compare the two are not very smart and if you don't understand the difference, Ms. Gormley, between trying to ban the savage practice of watching chickens trying to kill each other and protecting people's rights in CDV statutes, I'll never be able to explain it to you in a hundred years, ma'am."

Gormley:  "That's fine if you feel you will never be able to explain it to me, but my question to you is:  does that show that we are valuing a gamecock's life over a woman's life?"

Altman:  "You're really not very bright and I realize you are not accustomed to this, but I'm accustomed to reporters having a better sense of depth of things and your asking this question to me would indicate you can't understand the answer.  To ask the question is to demonstrate an enormous amount of ignorance.  I'm not trying to be rude or hostile, I'm telling you."

Gormley:  "It's rude when you tell someone they are not very bright."

Altman:  "You're not very bright and you'll just have to live with that."

Afterward, the gallant Rep. Altman commented, "I wanted to offend that snippy reporter who come in here on a mission.  She already had the story and she came in with some dumb questions and I don't mind telling people when they ask dumb questions."

South Carolina hovers at or near the top of the national rankings on domestic violence.  Rep. Altman is baffled that any battered woman ever returns to the man who's battered her.  I'd have hoped anyone and everyone, let alone a representative considering legislation, would realize that plenty of those women have no reasonable alternatives.

Earlier this week, the representative rose in the House to express "regret, real regret, and real sorrow over the publicity that this House has gotten in the last week."  He acknowledged that he had "offended a lot of people — and some people I offended who I didn't offend, but they're still offended and I just want to apologize to each and every one.  My intentions were not, never have been, never will be, to paint this institution or any of you in a negative manner....  I'm sorry I caused pain to those to whom I really caused pain, and I'm sorry I caused pain to those who might want to say ouch anyway."  You'll notice the "apology" doesn't retract a word.  Or a vote.

This Yankee says ouch, all the way from up in Michigan.  Not because he wants to.  Down Carolina way, cockfighting's a felony, domestic violence a misdemeanor.  Hmmm.

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April 29, 2005

the public defenders' sweatshop

Don Herzog: April 29, 2005

The politics of relentless increase, chapter the second, in which our narrative of criminal "justice" takes a bitterly farcical turn:


Yes, it looks suspiciously like the graph of "adult correctional populations" I posted before.  But this graph comes from that hotbed of crime, Wyoming.  It's the number of cases assigned to the Public Defenders Office.  These days, that office has some 45 full-time attorneys.  Looks like each attorney is responsible for some 440 cases.

But please, spare your sympathy for Wisconsin's Wyoming's public defenders — and their clients.  These guys can kick up their feet and smoke leisurely cigars compared to plenty of other public defenders.  No, I don't mean the ones in Kentucky with 484 cases apiece.  But don't sniff disdainfully at a mere 10% increase over the already hefty Wyoming load, either.  Those are another 44 of your fellow citizens looking at potential jail sentences.  We assume they're innocent till proven guilty, remember?  And they're entitled to legal counsel.

The American Bar Association's recent report sketched a system we can no longer politely describe as creaking or overworked.  They reminded us that defense attorneys "should not accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations."  You might be skeptical about setting strict numerical guidelines.  I am:  some cases are harder than others, some slumber for months at a time, and so on.  But it's hard to be skeptical about the claim that PDs have way too much work.

The ABA quoted the head of New York's Defenders Association:  "Caseloads are radically out of whack in some places in New York.  There are caseloads per year in which a lawyer handles 1,000, 1,200, 1,600 cases."  If you suspect that some criminal suspects must be waiting for legal assistance, you're right — and you should remember where they wait.  "There’s a story of a woman in Gulfport, Mississippi who was in jail eleven months before a lawyer was appointed, was in jail two more months before the lawyer came to see her, and was in jail one more month before they went to court and pled guilty to time served, all for shoplifting merchandise worth $72.  She was in jail a total of fourteen months."  Not the least heartbreak in these cases is that sometimes if you plead guilty, you get off for time served already, but if you plead innocent, you may have to wait longer in jail for a full trial.

The Department of Justice pools statistics from the 100 most populous counties for 1999.  I sure hope I'm miscalculating, but I kept coming up with 5467 cases per public defender.  The mind boggles.

So what do these harried and hassled PDs do?  All too often, they meet their clients for the first time at trial and quickly throw together a plea bargain.  Worse yet are the stories about private attorneys appointed by the court, many of them taking on astronomical numbers of cases, each one for nominal fees. You've heard the stories.  So have your elected representatives.  Here's Dick Durbin (D-IL) on the Senate floor, 6/6/2000:

We would never allow a podiatrist to perform heart surgery.  And we would never allow a surgeon to perform surgery while drunk, or to fall asleep during surgery.  But courts, over and over again, have upheld convictions where the defendants' lawyers were not qualified to represent them, slept through trial, or were drunk in court.

Take the case of the lawyer Joe Cannon.  In 1979, one Mr. Carl Johnson was convicted of murder and sent to death row by a Texas state court.  During trial, his lead counsel, Joe Cannon, was often asleep. Cannon's co-counsel, Philip Scardino, was two years out of law school and recalls the whole experience as "frightening.''  He said, "All I could do was nudge him sometimes and try to wake him up.''  Johnson's appellate attorney, David Dow, said the trial transcript gives the impression that there was no one in the courtroom defending Johnson.  It "goes on for pages and pages, and there is not a whisper from anyone representing him.''  Mr. Johnson was executed in 1995, the 12th execution under Governor Bush's watch.

Now as "frightening'' as this sounds, the same attorney continued to work capital cases.

When convicts claim ineffective counsel, their appeals are routinely turned aside with the claims that the defense attorney could have been making a tactical decision, or that anyway it's unclear that his apparent error materially contributed to their convictions or "prejudiced the defense."  The law maintains a "strong presumption" that counsel's actions are reasonable.

In 1963, the Supreme Court ruled that the sixth amendment requires the state to supply counsel to indigent criminal defendants.  If you're an originalist (but really, you shouldn't be), you should frown:  contemporaries thought the amendment barred the English practice of refusing to let defendants use counsel.  I know of no contemporary who thought the amendment required the state to pay for counsel.  And the law usually denies that the state has such affirmative obligations.  But I think the Court got this one right.  (As far as constitutional interpretation goes, very crudely speaking, we might say that the plain text easily supports the rule and that the rule is clearly demanded by justice.)  A criminal trial pits the juggernaut state against a solitary individual caught in a legalistic maze.  That individual needs a warrior to defend him.  He needs competent counsel.

Right now, he is entitled to the dreadfully-overworked bleary-eyed revolving-door appearance of such a counsel.  To underline the obvious, the PDs are not to blame.  Many of them are heroically hurling themselves into their work, logging very long hours for pretty low pay.  Blame our dismal funding instead, and don't whine about taxes, don't resort to would-be macho blustering about bleeding-heart liberals.  American citizens are serving time after getting derisory legal defense.  Is this scandal high on your state's list of legislative priorities?  No, I didn't think so.  Are leading politicians and commentators trying to work out a solution?  Oh, I forgot, they've been busy trying to save us from the grave perils of gay marriage.  One must have priorities, after all.

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April 26, 2005

2½ cheers for Hillsdale

Don Herzog: April 26, 2005

I'm a big fan of Hillsdale College.  I've never been there, even though it's an easy drive from Ann Arbor.  No matter:  I'm a big fan.

Hillsdale is the plucky little liberal arts college that became famous — or infamous, depending on who you travel with — for defying the federal government.  HEW demanded that colleges receiving federal funding file an Assurance of Compliance and then track and report all kinds of data to assure they're in compliance with Title IX.  For the record, Title IX does lots more than demand gender equity in sports.  The agency then decided the requirement would extend to campuses on which any student was receiving federal funding.  Hillsdale balked.  Eventually, the Supreme Court upheld the agency's action as clearly authorized by the statute.  And over Reagan's veto, Congress passed the Civil Rights Restoration Act to further broaden the statute's coverage.

Meanwhile, Hillsdale had had enough.  The college proudly boasts of being the country's first to ban discrimination on the basis of race, religion, and sex.  But they didn't like the idea of the feds snooping around in their internal decisions.  So they decided that they and their students would accept no federal funding.  Instead, they turned to conservative donors and raised hundreds of millions, enabling them to replace government funding with private financial aid.

Ever since, the place has been the darling of the right.  William F. Buckley, Jr., he of the waggling eyebrows, darting tongue, sardonic wit, and otiosely filigreed vocabulary, has long had a close relationship with the school.  And fabulous research opportunity here — now you can search his published work at the school's website.  This year, at the Founders Campaign Gala, Buckley, Ann Coulter, and Dan Quayle will appear as guests.  The curriculum focuses on the traditional liberal arts, clearly with a strong conservative and libertarian bent.

Oh, the school has had its problems.  There was a huge scandal in '99.  The college president's daughter-in-law, who worked on campus, alleged that she and he had had a long-running affair.  She promptly committed suicide.  He promptly retired with a splendid golden parachute.  (He was already very highly paid.)  No, sorry, none of this bears on the worth of what Hillsdale does.  And I disdain cheap shots at right-wing moralists as hypocrites.  (Oh, okay, I snicker at Tribulation Wholesome in Ben Jonson's Alchemist.)  Indeed, I'm happy that the president and his son have reconciled.  Meanwhile, disgruntled community members formed the amusingly named Hillsdale Liberation Organization.  Their website looks like it's not been updated in some years, but it alleges imperious government by the old president and ruthless ideological intolerance and censorship on campus.  (Here are some other critical comments.)

Then too, I think Hillsdale, like other campuses, would be far better off if it were more diverse.  And I'm a big fan of Title IX, though I do think the feds should think a lot harder than they do about how cumbersome and expensive it is to demonstrate to the bureaucrats that you're complying with various legal rules.

So there's plenty I disagree with Hillsdale about.  I could add more.  The old president recently resurfaced with a lecture on American history festooned with crazy judgments:  if his intellectual agenda for the school featured that sort of thing, I shudder for the students.  And the current president is a Straussian political theorist, so I'm sure I have all kinds of deep disagreements with him, just as I'm sure his little piece attacking Grutter is way off the mark.  So why am I such a fan of Hillsdale?  Because they're intriguingly different, and not in any blatantly offensive or unacceptable way.  (I would not be a fan of Ku Klux Klan U.  But don't bother trying to persuade me that conservatism is just the polite face of racism:  that's staggeringly ignorant as well as blatantly offensive.)  No one's forced to go to Hillsdale.  The rest of us can learn from its experience thumbing its nose at the feds.  We can learn about what the problems are of a staunchly conservative little college, and how they compare and contrast to those of staunchly liberal little colleges.

But there's more, and here's what I really want to insist on.  A liberal society will have plenty of groups and institutions that defy liberal orthodoxies.  Tolerance isn't yellow-bellied "relativism," and pluralism doesn't mean smiling sweetly at Nazis.  But Hillsdale is well within the bounds of liberal tolerance and pluralism.  No self-respecting liberal should wish that one association after another fall into line and dutifully affirm the same old rules about freedom, equality, the role of government, and the like.  No self-respecting liberal should want everyone to be a liberal.  No self-respecting liberal should want such a monochrome society.

In short, my disagreements with Hillsdale are precisely why I like them so much.  So this unreconstructed liberal is a big fan of Hillsdale College.  (They do lose half a cheer for the allegations of thought control.)  For real.

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April 21, 2005

sugar, shortening, lingerie, diversity

Don Herzog: April 21, 2005

Sara Lee does more than you might think.  No, I don't mean they're slipping transfats into those frozen desserts.  The cinnamon rolls are made with butter, anyway.  Nor do I mean that the corporation presides over a dizzying host of brands around the globe.  Hanes Her Way?  Chock Full o' Nuts?  Wonderbra?  Playtex?  Brylcreem?  Yup, all owned by Sara Lee.  Business gurus dedicated to core competence might wonder at the firm's boast that "Sara Lee Corporation's business is building leadership brands in core categories including packaged meats, bakery, coffee, tea, underwear, intimate apparel, body care, air care, shoe care and air fresheners."  But the market isn't that unhappy with their performance.

No, what you might not know is that Sara Lee, like many other leading corporations, has a robust diversity policy.  (No wonder Sara Lee and 64 other big businesses filed an amicus brief supporting the University of Michigan's affirmative action policies.)  The firm proudly touts the policy at their website:

    Sara Lee will be the benchmark for attracting, developing and retaining a diverse workforce and leadership team.
    We will create and sustain an inclusive environment where all people regardless of race, gender, age, ethnicity, religious beliefs, physical ability or sexual orientation are challenged to achieve their full potential.
    We will aggressively provide meaningful responsibility and development opportunities to our employees worldwide.

And Sara Lee has a Supplier Diversity Initiative.  The company head says,

    As a consumer products company, Sara Lee sees having a diverse supply base as an important business imperative.  We recognize that minority- and women-owned businesses are critical to the future of the markets we serve.  Sara Lee seeks partners who can support our efforts to maintain the high level of quality and innovation in our products. We are working to forge long-term relationships with diverse suppliers to benefit our brands, our customers and the communities in which we live.

In October 2004, Sara Lee's Chief Legal Officer drafted "A Call to Action."  It scolded law firms for their insufficient response to earlier demands for greater diversity.  The signers pledged to try to hire law firms that were more diverse — and to sever relations with those that weren't.

Toto, I have a feeling we're not eating cinnamon rolls any more.  What's going on here?  And what does it tell us about markets and politics?

One way of thinking about markets shows up in economic models and (roughly) in daily practice.  The consumer is interested solely in the price and quality of the product.  The manufacturer is interested solely in making money.  Buyer and seller cheerfully dismiss other considerations as irrelevant.  They're blind to one another's race, religion, ideology, and so on.  I guess you could smirk in condescension at how crass their interaction is, but I'd rather salute it.  What sociologists call role differentiation — right now, buyer and seller could say, we are playing market; we are not doing democratic politics, not engaging in confessional strife or for that matter ecumenical cooing; we are just ignoring all that — lets market participants meet as free and equal.

The same role differentiation shows up all over liberal societies.  Equality under the law means the state must be blind to whether you are rich or poor, straight or gay, Democrat or Republican, black or white, and so on.  "The separation of church and state," to mention an abstraction I've repeatedly said that I distrust, means in part — and this part everyone should warmly embrace that the state may not notice its citizens' religious attachments, or lack of them.  All of us get to vote, for instance, regardless of what church, synagogue, or mosque we go to, or whether we never go at all.

But this is all idealized.  When you erase the economist's blackboard sketches, you remember that market participants often do pay heed to considerations far removed from price, quality, and the like.  "Buy American."  "Don't buy nonunion grapes — UFW."  Thanks to heightened trust among the locals and hostility toward the outsiders, different markets can be locked up by particular racial or ethnic groups.  In any city, you can find out who sells umbrellas or jewelry on the street, who runs the best produce stands, and so on.

Why might Sara Lee be so enthusiastic about diversity?  They might think their consumers will reward them for it ("an important business imperative. . . . critical to the future of the markets we serve").  Or, as an economist might say, they might be indulging their own taste for diversity.  If someone clutching a dogeared copy of Milton Friedman's much reprinted column insists that the social responsibility of big business is to increase its profits, the firm might respond that their shareholders could always instruct them to stop if they don't like it.  But even that changes the name of the game from efficiency to democratic responsiveness, if with a limited franchise and some charmingly inegalitarian voting rules.  Or (shudder from some adversaries inserted here) the firm might talk about its stakeholders, not just its shareholders.  Regardless, it's hard to believe that the good folks of Sara Lee aren't within their legal rights in adopting such policies.  They're not violating Title VII or any other such law; they're just making voluntary decisions about whom to contract with.  (You might think that the Court's current jurisprudence has to mean that Title VII dictates color-blindness across the board, but as far as I know no court has gone down that road.  Yet.)  Still, we're free to disapprove of the choices they make.  We might reject diversity in this setting.  Or we might think, even if we like diversity, that there's something screwy about private firms having policies on such matters.

Does the example of Sara Lee persuade you that firms shouldn't take political stands?  But firms that don't have pro-diversity policies are doing politics, too.  What you might see as natural or unremarkable, just the ordinary pursuit of profits, is in fact tantamount to a decision that diversity doesn't matter in the workplace.  It is a perfectly defensible politics.  But it's political all the same.

What about this rule?  "Corporations should maximize their profits within the constraints of the law."  That too is perfectly defensible.  But it isn't knock-down slam-dunk obviously the right view.  Take a corporation that believes environmental regulation is too lax and has grave concerns about polluting the environment.  (No, not the kind of corporation that seizes on green causes as a pretext for gaining a competitive advantage.)  Are they obliged to ignore their own concerns?

So firms are inescapably making social policy.  That's a kind of privatization most champions of markets don't seem to have in mind.  What should we poor consumers do in response?  It's tiresome to have to think about Sara Lee's politics when you're trying to figure out whether to buy Ball Park hot dogs.  Indeed, it's tiresome to have to figure out what brands Sara Lee owns in the first place.  And of course Sara Lee's diversity policy is the tip of the iceberg.  Daily Kos had the spectacularly batty idea that people shouldn't buy from firms headquartered in red states.  And consumers intent on supporting blue firms (or, I suppose, avoiding them) can turn to this handy-dandy guide or this one — after suitably fretting about whose criteria for defining blue firms are better.  What a surreal nuisance!  So maybe we should put all this explicitly political stuff behind us and buy and sell on the basis of price and quality, period.

When you gaze longingly at those Smoky Hollow sausages, you might already think about your cholesterol.  Now you have to think about whether you want your consumer dollar to be a vote for diversity.  Or do you?

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Agent-Centered Action Theory

Douglas MacLean: April 21, 2005

Action theory is an area of philosophy that studies the nature of human action: how actions are individuated and related to act-types, how they relate to but differ from events or physical processes, how we distinguish a hand signal from an inadvertent movement, and other things like that.  A story in today's New York Times suggests that  Attorney General Alberto Gonzales may have something to contribute to the philosophical literature. 

The story is about two of President Bush's judicial nominees who figure to feature prominently in the impending Senate showdown on the attempt to prevent filibusters as a tool that the minority party can use to block appointments to which they are strongly opposed.  The nominees, both women, were blocked by filibusters in Mr. Bush's first term, and each has been renominated.

One of the nominees, Priscilla R. Owen, currently a supreme cout judge in Texas, is being opposed in part because of her dissents from rulings interpreting the Texas law on abortion.  In one dissent, Justice Owen opposed a ruling allowing a teenager to obtain an abortion without parental notification if she is mature enough to understand the consequences of her act.  Justice Owen objected that the court had not demonstrated that the girl knew that there were religious objections to abortion and that some women who have abortions experience remorse.

Mr. Gonzales, who at the time was a member of the Texas supreme court, wrote that the position of the dissenters was "an unconscionable act of judicial activism."  This remark, which is now being repeated by Democrats who oppose her nomination, is a bit embarrassing to the Bush administration.  Today's article reports that  Mr. Gonzales tried to explain what he meant at a recent Senate hearing:

"My comment about an act of judicial activism was not focused at Judge Owen," he said.  "It was actually focused at me."  His apparent explanation seemed to be that it would have been an act of judicial activism for him if he had done what Justice Owen and her two fellow dissenters had done.

I understand how the identity of an act can be agent-relative.  If I had issued an identical dissent to the Texas court's ruling, I couldn't have been accused of judicial activism for the simple reason that I am not a judge.  But Mr. Gonzales was a judge, so he must have some other criterion in mind for identifying and distinguishing act-types.  I hope he will elaborate further on this very interesting philosophical point.

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April 19, 2005

a brief and shamelessly opportunistic history of incendiary language

Don Herzog: April 19, 2005

Long ago and far away, Insight on the News (9/25/95) paired off opposing columns answering the question, "Are militias a threat to the nation's civil order?"  Rep. Peter King (Rep-NY) took the affirmative.  Staunch conservatives, he urged, ought to recognize that milita members were "wackos."

The "citizens' militia" movement threatens the very fabric of a democratic society.  Shouldn't we be concerned about scores of heavily armed private armies being fueled by a steady diet of screwball conspiracy theories, laced with xenophobic and racist elements?  I think so.

I also think the failure of conservative Republicans completely to dissociate themselves from these radical extremists threatens the viability of our party.  I say this as one who has been active in conservative politics since the Goldwater movement in the early 1960s.  (Unlike some of my GOP contemporaries, I was never a Rockefeller Republican.)

Lyn Nofziger, whom you may remember as longstanding Reagan adviser, occasional press secretary, and novelist, took the negative.  More proud than ironic, Nofziger claimed the mantle "wacko" for himself:

We wackos believe government is a necessary evil, not a necessary good.  We believe small government is better and that government is best that governs least.  Some of us even share Thomas Jefferson's belief that "the tree of liberty needs to be watered from time to time with the blood of patriots and tyrants". . . .

Rep. King is confused.  He thinks that because he calls himself a conservative and has been twice elected to Congress that he has the right and duty to judge the motives, the sanity and the patriotism of others.

Timothy McVeigh bombed the Alfred P. Murrah Federal Building in Oklahoma City ten years ago today — spare a somber thought or a prayer for the dead and the survivors, please.  That's some five months before this exchange.  Driving with firearms, he was arrested within hours for speeding and was held in jail.  A couple of days later, the authorities announced McVeigh's arrest and were already confronted with repeated questions about links to the militia or paramilitary movements.  That atrocity provides the backdrop for the exchange between King and Nofziger.

Did Nofziger mean to endorse McVeigh's action?  Of course not.  The thought is preposterous.  But I'm not interested in his intentions.  I'm interested in how ideology works.  Writing in 1999, Nofziger ratcheted up the rhetoric:

These things I believe: That government should butt out.  That freedom is our most precious commodity and if we are not eternally vigilant, government will take it all away. That individual freedom demands individual responsibility.  That government is not a necessary good but an unavoidable evil.  That the executive branch has grown too strong, the judicial branch too arrogant and the legislative branch too stupid.  That political parties have become close to meaningless.  That government should work to insure the rights of the individual, not plot to take them away.  That government should provide for the national defense and work to insure domestic tranquility.  That foreign trade should be fair rather than free.  That America should be wary of foreign entanglements.  That the tree of liberty needs to be watered from time to time with the blood of patriots and tyrants.  That guns do more than protect us from criminals; more importantly, they protect us from the ongoing threat of government.  That states are the bulwark of our freedom.  That states should have the right to secede from the Union.  That once a year we should hang someone in government as an example to his fellows.

I received this snippet by email from The Federalist Patriot a couple of weeks ago, but it's all over the net.  (You read the damnedest things when you start blogging.)  Mr. Nofziger graciously confirmed by email that he did indeed write it.  I disagree with bits of it.  I'm a free-trade kind of guy myself, for instance, and I'm puzzled and amused by the protectionist left and the nationalist/Buchanan right joining in the demand for fair trade.  But I don't just "disagree" with the last claim.  It seems to me outrageous, in a way that the loftier and more diffuse claim from Jefferson about the blood of tyrants doesn't at all.

"But Don, don't you have anything less pedantic to do than quibble with hyperbole?  Surely Nofziger doesn't mean literally that either!"  No, I don't suppose he does.  "Conser[v]ative Kansan" responded to Nofziger with this:

Lyn is close we should begin by hanging a judge a year for a decade.  I know of one in Florida I would nominate for first in line.

Does Conservative Kansan actually mean that we should kill Judge Greer for his role in the Schiavo case?  You will recall that Judge Greer and his family are now under round-the-clock armed guard.

Carnage and threats of further violence:  that's the crucial context for some well-worn recent news.  Not judicial activism.  Not court-ordered gay marriage.  Not Terry Schiavo.  Nope, the crucial context is the specter of Timothy McVeigh and talk of violence.  What well-worn recent news do I mean?

A couple of weeks ago, some conservatives met in DC to discuss "Remedies to Judicial Tyranny."  Phyllis Schlafly called Justice Kennedy's  opinion banning capital punishment for minors "a good ground of impeachment" and urged Congress to discuss the possibility.  The chair of the Home School Legal Defense Association, denouncing Justice Kennedy's use of international law, echoed her call and added,

If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.

This is merely goofy, though I did get a lovely nostalgic kick out of recalling Gerald Ford's drive to impeach William O. Douglas.  But then one Anthony Vieira denounced Justice Kennedy for his opinion striking down Texas's sodomy statute and his "Marxist, Leninist, satanic principles drawn from foreign law."  And here I thought the justice was some kind of natural-rights libertarian:  live and learn.  Himself steeped in Marxist lore, Vieira embraced a maxim from Stalin:

Here again I draw on the wisdom of Stalin. We're talking about the greatest political figure of the 20th century. . . .  He had a slogan, and it worked very well for him whenever he ran into difficulty.  "No man, no problem."

The full quotation from Stalin, as many others have noted, was "Death solves all problems:  no man, no problem."  No, I shan't applaud Vieira for his elegant discretion in abridging the master.

Add Rep. Tom DeLay on the Schiavo case:

The time will come for the men responsible for this to answer for their behavior.

Rep. DeLay has since apologized, kind of, for this comment as "inartful."  Though he dodged a question about impeaching judges, he's still intent on whittling down the courts:

We're having to change a whole culture in this a culture created by law schools.  People really believe that these are nine gods, and that all wisdom is vested in them.  This means it's a slow, long-term process.  I mean, we passed six bills out of the House limiting jurisdiction. We passed an amendment last September breaking up the Ninth Circuit.

I don't think law schools are that powerful, I don't approve of jurisdiction-stripping, and I'd oppose breaking up the "nutty Ninth."  But I am happy that the representative has apologized, if hesitantly, for his ominous threat.  And I'm happy to argue on the merits with Schlafly's overheated plea for jurisdiction-stripping.

But we can also add Sen. John Cornyn's reflection:

I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence.

Violence against judges is not just a recent problem.  In The New York Times (3/19/05), John Kane, a US District Court judge in Colorado, reported that "Since 1970, ten state and federal judges have been murdered, seven of them in job-related incidents."  Kane himself was once under round-the-clock protection when a woman offered $500 to anyone who'd kill him.  His offense?  He'd affirmed an order that her boyfriend be deported.

I'll say it again:  I don't believe Nofziger and the rest intend that anything like this should happen.  I do believe all the following:

  • All the inflammatory language I've quoted is constitutionally protected.  Criminal or civil actions against any of these writers or speakers would properly fail.  (In its last consideration of cross-burning, the Supreme Court muddied the law on when threats become concrete enough to lose first amendment protection.  But I think even Vieira's language is still protected.)
  • Anyone inspired by the circulation of this language to attack a judge is responsible for his action and ought to be punished.
  • It is reprehensible for anyone to tiptoe towards approving violent attacks on judges.
  • It is reprehensible in part because it may well causally contribute to actual violence, even if the law properly won't hold the speaker or writer responsible.
  • It is especially reprehensible given the recent history of actual attacks on judges and their families.

And I think there's a trend here.  In '95, a conservative representative was reproaching the Republican leadership for their silence.  He triggered a lofty comeback from a noted political adviser.  By '99, that adviser's language was heated, even brutal.  By '05, the recycling of that '99 language was producing leering threats online; and a senator and congressional leader were not just silent, but playing with fire.  What should we call people who keep playing with fire after others have been burnt?  Quick, someone alert the White House:  seems like hard times for the culture of life in the Republican Party.  The judiciary seems to make them homicidal.  Are the GOP hardliners "just talking"?  Maybe, but there are any number of Timothy McVeighs out there listening intently.  Meanwhile, Senator Frist will join the dubious festivities of "Justice Sunday" this weekend and lend his name to extravagant nonsense:  "The filibuster was once abused to protect racial bias, and it is now being used against people of faith."  I'm hoping the event will provide comic relief — and that further exposure to this sort of thing will energize sensible Republicans to speak up.  But I fear that speakers will hurl more threats of violence.

Now I can't be sure there's a trend.  I haven't deeply researched the decade's history of this sort of language.  So I confess that my history is brief and shamelessly opportunistic.  But I'm sure that the more recent language of Nofziger, DeLay, and Cornyn is not just shamelessly opportunistic.  It's plain shameless — and downright shameful.

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April 17, 2005

us hateful liberals

Don Herzog: April 17, 2005

May I have the envelope, please?  Ladies and gentlemen, in the — excuse me, I'm not presenting an award?  I'm unsealing an indictment?  Oh, sorry.  More somberly, then.

The Indictment is in.  From Rob Koons, over at Right Reason:

Ten Things I Hate About Liberals

The following are based on my observations of posts and comments by liberals on the web, especially this site.

  1. Liberals invariably charge their critics with the straw man fallacy, no matter how tight the fit between the criticism and the words and deeds of real liberals.
  2. Liberals are quick to distance themselves from their wacko spokesman (Michael Moore, Ward Churchill) whenever these spokesman are attacked by the right, but liberals will never initiate such criticism, holding fast to the maxim of pas d’enemi à gauche.
  3. Liberals love to play hard-ball politics, until they get beaned themselves.
  4. Liberals complain incessantly that conservatives don't know or understand them yet have never spent more than five minutes listening to conservatives or reading their works.
  5. Liberals are apt to label conservatives hateful, confusing vigorous rebuttal of liberal thought with personal attacks on liberals themselves.
  6. Liberals make extremely intemperate remarks, while holding conservatives to a standard of politeness so stringent as to make Emily Post squirm with anxiety.
  7. Liberals never bother to check their facts, since they know that only ignoramuses disagree with them.
  8. Liberals are boring, since all they ever have to say is "yada, yada, yada, yada,..." [Sorry, I stopped listening after the second 'yada'.]
  9. Liberals object vehemently to any attempt by conservatives to make generalizations about liberals, no matter how apt the generalization might be.
  10. Liberals have absolutely no sense of humor. They never laugh they only smirk.

I'm a liberal.  Or so I would have thought.  So how was I supposed to react to this list?  With the shame of seeing myself nailed so decisively?  With smug and pompous dismissiveness?  If dismissive, was I permitted to blush minutes later on realizing how blatantly I'd played into Koons's hand?  Or was I typecast as so damned sanctimonious that it would never even occur to me that a blush was in order?  Or was I not supposed to react at all?  Was Koons preaching to the choir? or auditioning as the conservative blogosphere's strutting cheerleader with pompoms?

Okay, I'll confess:  I grinned.  Well, I think I grinned.  Maybe Prof. Koons would have seen it as a smirk.  These things are so tricky.  And — ah, high culture! — with nary a tinge of remorse or anxiety about Dead White Males, I found a snippet of Shakespeare floating across the old mental stage:  Lord, what fools these mortals be!  Proudly, fatuously, cosmopolitan, thinking in a pop-culture way that we're all Bozos on this bus, I didn't even silently replace "mortals" with "conservatives."

Decalogues aren't my thing.  (It's that vicious secular-humanism thing.  Got me in its clutches.  Has ever since I was a wee 'un.  My bad.)  But I'll give it a try, if only to respond, point by point, to The Indictment:

  1. Sometimes people do make straw-man arguments.  I suppose Prof. Koons just did, unless he wasn't attempting any kind of argument at all.  But I hope my conversational repertoire is not so drastically limited that I really am capable of only one response.
  2. I volunteered a criticism of Michael Moore here.  I coupled it with a parallel criticism of Anne Coulter.  And all without messing up my plural English nouns! all without a syllable of misspelled French!  Your move, Prof. Koons.
  3. I hate hardball politics.  Actually, I shall ruefully confess that I kind of hate politics.  Or, better perhaps, I am morbidly fascinated by it.  But I prefer politics — and blogging when the participants scrupulously observe Queensberry rules.  As they oh so rarely do.
  4. Oh, agony:  another Public Confession is required.  No, not just the charming old saw, "some of my best friends," though that's true enough.  I have read almost every extant word of Edmund Burke (some 23 volumes).  Just about all of Samuel Taylor Coleridge (35).  I have felt extremely foolish sitting in rare books rooms around the country, watching librarians carefully cut the pages of centuries-old volumes by conservatives you've never even heard of, so that I could be the first to read them.  Why I even wrote an unpleasantly fat book about conservatism (and democracy), and those duplicitous wretches at The Guardian applauded me for not sparing the left my biting criticisms.  I have read de Maistre and Bonald.  When I worked on nineteenth-century American sources, my shelves groaned under the weight of John Taylor, John C. Calhoun, James Fenimore Cooper.  (Trust me on this one:  your literary and political life is not complete until you hunt down a copy of Autobiography of a Pocket-Handkerchief, a book so dreadful that it got left out of the standard editions of Cooper's works.  Those recalling Mark Twain's immortal skewering of Cooper will realize that that means it's quite extraordinarily dreadful.  Yes, the novel is narrated by a handkerchief, which guides us from aristocratic France to revolutionary France to the vulgar new wealth of a New York speculator.  More of Cooper's deathless accomplishment I dare not reveal.)  Rocketing right along to the twentieth century, I have plowed through lots of H. L. Mencken I'm sure he often got me to giggle, not smirk, though I'll also confess that the antiSemitism and Christian-bashing of his preface to his translation of Nietzsche's Antichrist made me wince and I've read almost everything by that genial master of sesquipedalian witticisms, Wm. F. Buckley, Jr.  I devoured most of von Mises, lots of Hayek, all of Rand.  (The Objectivist Newsletter still graces my bookshelf.  No, I won't take bids for it, and yes, I understand perfectly well why some of you will protest vehemently that those three are not conservative.)  Albert Jay Nock and Frank Chodorov disappeared screaming into my cavernous reader's maw.  I have even dipped into the thankless pool of books by Russell Kirk.  As a political theorist, I have sometimes felt grimly duty-bound to read work by Leo Strauss and his inordinately faithful students.  Tortured by a right-wing tribunal, I will duly and truthfully confess to reading the works of many other conservative authors, magazines and journals too, but you get the idea.  Heads up, Prof. Koons, I wouldn't want any bean-balls to come your way:  some of us hateful liberals reject conservatism and happen to know something about it.  In fact, some of us reject conservatism because we know something about it.
  5. Oh how boring.  And how unfortunate the contrast between this item and The Indictment's title.  How unfortunate, too, the way it makes the reader wonder whether The Indictment is an attack on liberal thought or on liberals.  Honestly, Prof. Koons, you can do better.  You have my permission to amend The Indictment as to this item.
  6. Yikes!  My last was intemperate.  But maybe only mildly intemperate?  A bit sassy, but nowhere near strident?  Can I get off that easily?  Pretty please with brown sugar on top?  Shall I take a goodly dose of Roger Scruton as medicine? or penance?
  7. Back in the day, that notorious liberal, feminist, democrat, and socialist, John Stuart Mill, insisted that it was hard to figure out what was true and that we could always be mistaken.  He touted free speech in part as a strategy for improving our views — and urged "the real morality of public discussion":  "opinion ought, in every instance, to determine its verdict by the circumstances of the individual case; condemning every one, on whichever side of the argument he places himself, in whose mode of advocacy either want of candor, or malignity, bigotry or intolerance of feeling manifest themselves, but not inferring these vices from the side which a person takes, though it be the contrary side of the question to our own; and giving merited honor to every one, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favor."  Meanwhile, conservatives before and after Mill were horrified by the great unwashed vigorously debating in alehouses and coffeehouses, at hairdressers' shops and in factories, on the docks and even, be it said, whispering in church.  Mill's view sounds good to me.  No doubt the rot has set in since the good old days.  Or, in the words of that immortal conservative, Mercer Ellington, things ain't what they used to be.  Still, I love new facts, especially counterintuitive ones, and am perfectly used to discovering that I have been wrong about matters large and small.  Maybe it's all the time I spend in the rare books room:  do the musty books help preserve me from the rot?
  8. I don't think value is subjective, but maybe boredom is in the eye of the beholder.  Oh, I know perfectly well that I'm boring.  But I always assumed that was my doom because I'm a professor, not because I'm a liberal.  Doesn't "exciting professor" sound more oxymoronic than "exciting liberal"?  Don't you recall your days nodding off in lecture, wondering what necromancy let your dull professor overwhelm hefty doses of caffeine and exam anxiety alike and transform your eyelids into some lead alloy?  Don't you still shudder remembering your struggles with turgid secondary reading assignments in your college courses?  QED.  Or at least I think QED.  I could be wrong, though.
  9. Like conservatism, liberalism is a tradition.  That means it's not a simple unified view, but a family of disagreements.  Can you generalize about family resemblances?  Sure.  But ...
  10. ... this would be an example of a crummy generalization.  Why Prof. Koons has in fact tickled my fancy.  Shakespeare and Firesign Theatre nailed it:  Koons, me, all of us.

Now if you'll excuse me, I have to get back to reading Ronald Reagan's little book on abortion.  (Yes, really.)  No, I don't suppose he actually wrote the thing himself.  But that's pure speculation.  I could be wrong.  Anyway I am hoping that Reagan, or "Reagan," will shed more light than heat on the topic.  Speaking of which, anyone want to take up a collection to buy Prof. Koons a fluorescent bulb and an air conditioner?

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April 16, 2005

the legislative sausage machine

Don Herzog: April 16, 2005

Zipping through the House debate over our brand spanking new bankruptcy bill didn't quite give me a migraine.  But close enough.

Democrats protested that the Republican majority had adopted rules designed to steamroll the bill right on through.  (The bill has been bouncing around for a leisurely seven years, but House leaders were suddenly in a hurry.  Apparently they wanted an up-or-down vote on the Senate's version to avoid further delays in conference committee.  President Bush's pen is poised.)  Here's Rep. Tom Udall (D-NM):

The majority has, once again, passed a rule that stifles debate and blocks serious and substantive amendments.  There were more than 30 thoughtful amendments brought before the Rules Committee, yet they did not allow a single one to be brought before the full House.  These amendments would have addressed the impact that this bill would have on groups such as disabled veterans returning from Iraq, single parents, families experiencing a catastrophic medical event, and people who are victims of identity theft.  This continued smothering of the democratic process by the majority is shameful and must stop.

One of those amendments, offered by Rep. Adam Schiff (D-CA), would have protected those in debt because of identity theft.  (The technical definition was "a debtor with respect to whom not less than 51 percent of the aggregate value of allowed claims is a result of identity theft using the personally identifiable information of the debtor.")  Here's Rep. Schiff's plaintive plea:

Mr. Speaker, a few years ago, the manager of the identity theft at the FTC commented on how identity theft was becoming rampant in this country, that it wreaks havoc on the credit of the victim and can even force them into bankruptcy.  Since then, the problem has grown even worse, and an estimated 27.3 million Americans have fallen victim to identity theft in the last 5 years.

We have all heard of recent breaches of massive databases holding personal information.  On Monday, the parent company of the Lexis-Nexis reported that 310,000 people, nearly 10 times more than the original estimate reported last month, may have had their personal information stolen, including names, addresses, Social Security numbers, and driver's license numbers.

And this is not an isolated incident.  Identity thieves have gained access to Choicepoint's database and personal information has been stolen and compromised from a major bank, department of motor vehicles, and a number of universities.  Added together, these recent incidents in the last several weeks alone have exposed more than 2 million people to possible ID theft.

During the Judiciary Committee consideration of my amendment, I cited two recent examples of identity theft victims who were forced to declare bankruptcy, one young woman defrauded out of $300,000 and another woman who was wiped out financially when her identity was stolen, forcing her to file for bankruptcy right before Christmas.

When I offered the amendment in the Judiciary Committee it provoked quite a debate as well as a disagreement between the Chair of the full committee and the Chair of the subcommittee.  The Chair of the subcommittee argued that my amendment would somehow do harm, while the Chair of the full committee argued that the problem with my amendment was that it did nothing at all.  The chairman of the subcommittee then argued that the problem was that this issue had never been explored.  However, the chairman of the full committee argued that this issue, and every other, had already been explored.

Well, Mr. Speaker and Members, it cannot be both.  The chairman of the subcommittee even pondered what would happen if a person had their identity stolen, but then later became wealthy and had the ability to pay off their debt.  While admitting that he was stretching, he still urged his colleagues to reject the amendment because it would "clearly disrupt the whole process of moving forward the bill"....

This is now the third session in a row where essentially no amendments have been entertained in committee and no amendments have been allowed here on the floor.

Rep. Phil Gingrey (R-GA) dismissed the issue as "a red herring," arguing that you're not legally liable for debts fraudulently incurred by others in your name.  Rep. Louise Slaughter (D-NY) shot back, "if my colleagues in the majority do not agree that protecting Americans from identity theft is an important issue, why will they not let the body debate it?  If they want to, they can always vote against it."  Gingrey has to know better:  the problem with identity theft is demonstrating that the debts in question are not in fact yours.  But hey! don't trust me on the matter.  Trust our president:

An identity theft — thief can steal the victim's financial reputation.  Running up bills on credit card accounts that the victim never knew existed, the criminal can quickly damage a person's lifelong efforts to build and maintain a good credit rating.  Repairing the damage can take months or years.

I don't doubt that legislative minorities can and do use endless amendments to grind legislative proceedings to a halt.  But the Republican decision on this one looks not just overweening but wacky.  I'm market-minded enough to think that credit card issuers ought to be more careful deciding whom to extend credit to in the first place.  Infants and pets get invitations for preapproved credit cards.  Are the banks pleading with the nanny state to save them from their own wretched judgment?  Or are they addicts?  "Please, Congress, we know we're destroying ourselves by constantly pushing credit on unreliable consumers, but we just can't help ourselves.  Stop us before it's too late!"  Then again, looks like the industry has been recording healthy profits.  Are they after a legislative handout that will secure them obese profits?  Or do you think their lobbying was driven by the desire to cut interest rates, so those dutifully paying off their debts wouldn't have to subsidize those declaring bankruptcy?  We'll see what actually happens.

Meanwhile, the Notification of Risk to Personal Data Act has bipartisan support.  It imposes a duty to disclose security breaches to individuals.  Better than nothing, I suppose.  I'll try to remember to check up on its progress now and again.

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April 15, 2005

Putting a Face on the Estate Taxpayer

Nestegg: April 15, 2005

Editor's Update: 4/15/05 9:22 pm: A computer error by the editor caused this post to disappear for several hours this afternoon.  Apologies.

Yesterday, the House of Representatives again voted to repeal the estate (or death) tax.  I won't argue the merits of having or repealing this tax here.  Instead, I want to give a brief "profile" of one family affected by the estate tax, my own.  Because I come from a family that does not like to talk about money, I am using a pseudonym in this posting in order to prevent embarrassment to my relatives.
  We've read stories, mostly apocryphal, about families forced to sell their farms or small businesses in order to pay the estate tax.  It's proven hard to find real examples of such families, but their plights have been described to us.  More often, we hear (mostly from critics of repeal) that this tax affects only the very wealthy.  Who are these people?  And how would the estate tax affect them?  Well, I've never thought of myself as among "the richest sliver of Americans" (as The Washington Post recently put it), but my family does have a stake in the estate tax, and I'd bet that my situation is more similar to the majority of those who would be affected by this tax than is the situation of the farmer or small business owner.
  First some figures.  To estimate the effects of repealing the tax, it is misleading to compare it to the current tax, which declines until it disappears in 2010 and then is reborn in 2011 Venus-like, in its full original amount.   Repeal should be compared instead to the Pomeroy alternative proposed by the Democrats, which exempts the first $3.5 million of an estate from taxes ($7 million for a couple), and taxes the remaining amount at a rate of 45%.  That tax would affect only .3% of estates, but the effect on those estates would be signifcant, large enough to offset between a quarter and a half of the projected 75-year Social Security shortfall.  For my own family, based on the current value of my mother's estate, it would mean that Uncle Sam would take in excess of $3 million before the remainder is passed on to my brothers and me.

  What does that mean to us?  My father grew up poor and was a successful businessman and investor.  His was a typical "greatest generation" story.  He suffered through the depression, dropped out of college to go to war, put his brother through school, married and raised three sons, and lived modestly.  He never talked about the war or about money, and I never knew until after he died how much he was worth.  My father's greatest satisfaction came from being able to to provide security for his family.
  And provide he did.  My two brothers and I never received any allowance or spending money.  We had to work for whatever we wanted to buy, and we learned to live within our means.  We've all had successful careers, no debt, and we've never asked our parents for any money along the way.  But we were also well provided for.  Our parents paid fully for our undergraduate educations; we were each given a (used) car for our 21st Birthdays; we were each given a substantial gift intended to help us buy our first homes; and much later in life our parents began to give each of us the tax-free allowable gift of $10,000 each year.  We in turn used those gifts (with added money from our own savings) to help create funds that are now paying for our children's college educations.  We have also each managed to create other funds for our children to help them buy their first homes.  And so it goes.
  My father died eleven years ago, and my mother recently moved into a comfortable retirement community.  My older brother was a successful businessman who retired last month (at age 61) in order to spend time flying his two planes and resuming his earlier life as a ski instructor, as long as his knees hold out.  He lives in a very affluent suburb and vacations at his beach house when he is not going to fishing in Alaska or Argentina.  My younger brother is a successful lawyer who doesn't much like travelling.  He spends his weekends at his lovely cabin at a mountain lake two hours from work, and he spends his spare time working for social causes he believes in. I am an academic who enjoys work, travels often, and has enough money saved for a comfortable retirement, although I currently have no desire to retire.  When my mother dies, her estate will be split between the three of us.  Whether we get the full amount, all but $3 million of it, or nothing at all will make no appreciable difference to any of our lives.  It won't affect how we work, when we retire, how we spend our spare time, or what we will give before we die to our own children.  I suppose that with my share I will set up a foundation or something, provided the administrative burden is not too great. 
  As I said earlier, I'll bet that my story is the common one for people who will be directly affected by the repeal of the estate tax.  It will have a noticeable effect on my net worth, but none at all on my quality of life.  I said that I wasn't going to present an argument here, but I can't resist ending with a question.  Can this same claim be made by those who will be affected by an increase in payroll taxes?

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April 14, 2005

picketing the porn shop

Don Herzog: April 14, 2005

A block and a half away from Eastern Michigan University in Ypsilanti, one town over from where I live, you can find The Magazine Rack.  Despite the inauspicious name, the place is a porn shop.  It's been operating illegally for some twenty years.  The owner has no occupancy permit and the area is not zoned for "adult entertainment."  (I always want to call it adolescent-male entertainment, but I'll try to spare you my stray snide editorial comments.)  He's in violation of fire safety standards, too.  The fire marshal confesses that the city sort of fell behind on these things.

The place hit the local news last week when students from Ave Maria College launched a picket.  The college, a Catholic school set up by a foundation funded by local boy made good, Tom Monaghan, who climbed from pizza delivery boy to (now former) owner of the Domino's Pizza empire, is just as close to the porn shop as EMU is.  Declared one picketing woman, a senior at Ave Maria, "Pornography is the root of a lot of social problems.  It's degrading to society.  It'd be great if this place would close down, but all we can do is make people think about it."

Meanwhile, a senior from EMU launched a counter-picket of his own, with help from fraternity and sorority members.  "Dressed in a stylish black suit," he stood in front of the store with a sign proclaiming, HONK IF YOU LOVE PORN!  Ah, democracy.  Ah, undergraduates.

Some other commercial firms in town are happy about the protest.  The owner of a rental management company commented, "I don't like having a dirty store in my neighborhood.  It brings in low-life, nonfunctional people. I would like to see this street do well."  And the owner of a Mexican restaurant obligingly showed up with refreshments for the picketers.  "I think when young people are concerned about community issues, you have to support them they're doing something good," she said.  "I have nothing against [The Magazine Rack], but no matter how nice it might be, it is not welcoming to the neighborhood.  It attracts special characters."

The Supreme Court has upheld zoning designed to exclude such businesses precisely because it lures those low-life, nonfunctional, special characters — more generally, because it lowers property values and attracts petty crime and prostitution, or because a municipality might reasonably think it does.  And the Ave Maria picketers are exercising their freedom of speech, not violating the first amendment rights of The Magazine Rack.  They can't be violating the shop's first amendment rights, because they're private actors, not the government.  The Bill of Rights protects only against state action.

Still, that senior with the counter-picket
— no low-life he, in his stylish suit is worried about the Constitution.  "It's an American right to watch and observe what you want to," he said.  "I personally don't look at porn, but I believe in the American right to watch it."  (You knew that personal disclaimer was coming, didn't you?  Whoops, sorry, another snide afterthought.  Set snide=off.)

Me, I wouldn't even try to outlaw porn.  But I'm cheerfully with the Ave Maria protesters.  The stuff doesn't belong on a main pedestrian and shopping drag right by two campuses.  Right, that means I think there's more here than consumer demand, rent, and the free market, more than the bare fact that The Magazine Rack is a private firm located on private property suggests.  There's more to say on behalf of the picketers' concerns than, "if you don't like porn, don't shop there," or "if you don't like seeing the store, don't look at it."  Neighborhoods have characters, and those characters are properly matters of public concern.  (A sympathetic economist might invoke the flabby category, externalities.)  I'd be happy to have the city vigorously enforce the zoning rule and force the business to relocate.  I'd be happy, too, if the picketers invested enough time and energy to embarrass some of the customers, depress demand, and drive the shop's profits down to where they'd need to relocate, too.  Either public or private action here could be coercive — and could still be legitimate.

But that's just a reminder that the public/private distinction is delightfully messy.  Or, better, grammar be damned:  the public/private distinction are delightfully messy.  There are at least three distinctions traveling under that name:

  • state/society;
  • what's open to the view or access of strangers/what's hidden or reserved;
  • where you're obliged to pay attention to others' interests/where you may suit yourself.

A common political mistake is to assume these three distinctions map onto each other, but they crosscut or are wholly independent.  Another common mistake, more politically lethal, is to map the public/private distinction onto the coercive/voluntary distinction.

So here's another of your friendly neighborhood nerdy professor's homework assignments.  Sort out what's public, what's private, in my tale of the picketed porn shop, and then sort out how power fits in.  Hint:  it's tricky.  Got it?  Good.  Don't lose it.

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