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Archive for December, 2005

Scattered Ruins of the Lost Empire

[ 0 ] December 3, 2005 |

Good article on the escape from an Afghani prison of four members of Al-Qaeda. Addicted to secrecy, the Bush administration has of course not been as forthcoming as a reasonable person might expect. This is what fascinated me, though:

At the time, several officials said, construction crews had been working to expand and reinforce the prison, a cavernous aircraft machine-shop built by the Soviet military during its occupation of Afghanistan and converted by the American military into its primary screening center for terror suspects captured overseas. The breakout took place only days before a series of tougher security measures, including surveillance cameras and brighter lighting, were to be put in place.

Why does it seem that so much of the infrastructure of the War on Terror is built on the ruins of the Soviet empire? Air bases in Central Asia, secret prisons in Eastern Europe, Soviet financed prisons in Iraq, Soviet trained torturers in countries around the world, and old Soviet bases in Afghanistan. There’s certainly no intentionality to it, and I don’t doubt that each decision to use an old Soviet facility can be justified on its own merits. Nevertheless, it is fascinating and disturbing that the United States seems so ready and able to pick up and dust off the rusty tools of Soviet imperialism.



[ 0 ] December 3, 2005 |

Is shooting a unarmed teenager who stole 10 bucks in the back of the head a reasonable “seizure” under the Fourth Amendment? I think you know how Strip Search Sammy is going to answer this one:

Supreme Court nominee Samuel A. Alito Jr.’s views on abortion caused a stir this week, but another memo that surfaced from his years as a Reagan administration lawyer was notable for its strong support of the police.

Alito wrote that he saw no constitutional problem with a police officer shooting and killing an unarmed teenager who was fleeing after a $10 home burglary.

“I think the shooting [in this case] can be justified as reasonable,” Alito wrote in a 1984 memo to Justice Department officials.

Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said.

“I do not think the Constitution provides an answer to the officer’s dilemma,” Alito advised.

It’s not easy to get to the right of Byron White–who dissented in Miranda–on civil liberties issues, but Alito was:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

The one thing you can say is that on this issue Alito may not be more reactionary than his replacement, who wrote the dissent, although whether O’Connor circa 2005 would have voted the same way is highly questionable. Anyway, if you like gutting the Fourth Amendment, you’ll love Sam Alito.

At least now we know why Ann Althouse likes him so much…

Blue Moon of Kentucky, Keep on Shining

[ 0 ] December 2, 2005 |

Given the staggering success of the “Red State” bureau established in Lexington, Kentucky by the Central Committee of Lawyers, Guns and Money last April, it has been decided by unanimous vote to continue the project indefinitely.

In related news news I have been offered and have accepted a tenure track assistant professor position at the Patterson School of Diplomacy and International Commerce at the University of Kentucky. I have been very happy with my time here thus far, and I’m looking forward to continuing my work here over the next several years, at least. In particular, I have found the faculty and students to be exceptionally supportive.

UPDATE: Thank you all very much. I just hope that I’m not held responsible for this.

Big Media Scott

[ 0 ] December 2, 2005 |

A follow-up article to my previous one about Alito and Casey is up at TAP online. Since I don’t think the class aspects of the plan of conservatives to incrementally dismantle Roe while–to use Rehnquist’s metaphor for the forces of good–leaving its hallow facade as a Potemkin Village of moderation has received enough attention, I’d like to highlight this passage:

What is particularly objectionable is the effect this method of regulating abortion would have on poor women and women in rural areas. American abortion law has always entailed hypocrisy and inequity; before Roe, even in states where abortion was formally banned, doctors performed a significant number of safe abortions in hospitals. Women from affluent families could get access to safe abortions, while less advantaged women were consigned to back-alley butchers. Most of the regulations currently permitted by Casey have the same effects. Regulations such as waiting periods and parental involvement requirements have far more restrictive effects on poor women and women in abusive families than on middle-class women in stable families. Perversely, adopting the Salerno standard would make these inequitable effects an argument in favor of the constitutionality of such regulations.

The best thing to come from Roe–although it was somewhat inadvertent–was the fact that it extended the de facto standards of law that obtained for affluent women and extended them to all women. The state could no longer wink at grey market abortions while keeping formal bans as an omnipresent threat against doctors who performed abortions on the wrong kind of women or promoted their services to actively. Casey has watered this down, but as long as statutes can be facially challenged and the undue burden standard has at least some teeth, it’s a tolerable compromise. The road that the Bush Administration is trying with Ayotte–to take the teeth out of the “undue burden” standard and make doctors vulnerable to prosecution while simultaneously making it far more difficult and expensive and time-consuming to challenge regulations in court–would essentially see a return the pre-Roe status quo ante, making safe abortions the province of women in affluent, well-connected families. This would be a completely indefensible outcome achieved through a dishonest and dishonorable process, and there ‘s no serious question that Alito would go along with it.

The other thing to mention is that having heard oral arguments–the article was essentially written before–I’m more optimistic about the possibility that Ayotte will be disposed of before Alito gets a chance to vote in a re-hearing. The most likely outcome–reading a health exemtpion into the statute–can be reconciled with Casey, and while it would plant the seeds of a move toward making facial challenges, it doesn’t seem likely that Roberts has 5 votes for anything concrete. But the planted seed is bad enough, and remember that O’Connor is gone, Ginsburg is a 72-year old cancer survivor, Souter is 66, and Stevens is 85. Even if disaster is avoided this time, it ain’t over, and the project to slowly destroy Roe isn’t going away.

More on the incrementalist strategy from Liza Sabater.

The Case Against the Case Against Grad School

[ 0 ] December 2, 2005 |

Brian Weatherson has a terrific response to this crude description of grad school and the academic job market, which is a pretty common line of argument. So good, in fact, that my points are more reiterations than additions. It should first be noted that the academic job market is indeed simply not as dire as “Dean Dad” suggests, and it’s not just elite schools. I, and my co-bloggers, went (or are currently in) a program which is well-regarded but not elite (in terms of reputation); it generally ranks around 25th in departmental rankings for political science. And yet are placement record is, in fact, very good: most of the people who finish the program end up in tenure track jobs. And good jobs, too; in the last 5 years our relatively small program has placed people in tenure-track jobs at good institutions like Cornell, the University of Wisconsin, U of Illinois, U Conn, the University of Oregon the University of Delaware, Concordia University in Montreal, etc. Even the most dubious students in our program can end up with excellent tenure-track jobs at Hunter College and The University of Kentucky. Now, admittedly, I think our program is much better than its ranking suggests (but doesn’t everybody, and on the job market reputation matters a lot whether it’s accurate or not), and there are certain subfields–like comparative politics and public law–in which our program probably has a stronger reputation than the overall ranking (but many of our best placements come outside of these fields.) But that, of course, is what Brian is saying; the question about grad school is not whether to “go to grad school” per se, but whether a particular offer is good, so you need to look into a department to see if it’s a good fit for you. But, anyway, it’s simply not true that tenure-track jobs are nearly impossible to get in every field, or even that the good prospects are limited to elite universities; that’s just a hoary canard. Look into the placement records of the departments and programs you’re interested in; don’t just assume that it’s hopeless.

I also agree with Brian that grad school was, for me, a very good experience. Yeah, the pay is awful, but to state the obvious if money is a big priority–which is a perfectly legitimate consideration!–then academia really isn’t for you. And, of course, it’s not for many (or most) people. But I like seminars, I like writing, and I liked teaching; I thought grad school in and of itself was rewarding and engaging, and I’ve never had the slightest regret. Aside from the crude utilitarianism, Dean Dad is frankly crazy to compare high school teaching with academia; they’re very, very different jobs. The nature of the teaching is different, some people like to write and do research, etc. You should think very carefully about it, do a lot of research, and be honest about your own values and aspirations and be aware of what you’re sacrificing before you go to grad school, without question. The risk for ending up in an awful cycle of adjunct jobs is all-too-present, even if the chances are exaggerated and vary wildly across programs and fields, and you need to consider that too. But totalizing critiques like Dean Dad’s are useless, and I would strongly advise you to ignore them if you’re considering grad school.

…in the comments at CT, John Emerson does remind me of one crucial caveat: “Don’t go to grad school if you aren’t fully funded.” That’s absoultely true. You shouldn’t pay a dime in tuition money to attend grad school in the humanities and social sciences, and while you shouldn’t expect an income much above subsistence you shouldn’t be borrowing money for food and rent. The payoff at the end just isn’t worth taking on significant debt the way it is for law school or med school.

[ 0 ] December 2, 2005 |

Friday Cat Blogging… Bud

Blog Against Racism Day: The Great Dissenter

[ 0 ] December 1, 2005 |

When it comes to discussing the worst cases in Supreme Court history, I’ve always thought the Civil Rights Cases haven’t gotten a bad enough rap. (I should mention here that I’m talking in terms of consequences more than legal doctrine; many of the most infamously racist cases, because of the racism that has infected American constitutionalism, have been perfectly plausible applications of precedent and original intent.) Dred Scott was an atrociously immoral opinion, but its denial of African-American citizenship was the culmination of Jacksonian ideology, not a cause of it; the citizenship rights of African-American had been eroding for decades before the decision has handed down. The same is true of Plessy; it’s appalling, but by the time the case was handed down, Jim Crow had already left the station for good, and even if the case had been decided correctly it’s doubtful that it would have stood up for long. We can never know what effects the Civil Rights Cases would have had, but I think it’s very possible that it was far more consequential. In addition, it produced a great dissent from the first Justice Harlan, greater in my view than his much more famous dissent in Plessy, and for Blog Against Racism Day I thought I would provide some excerpts for readers unfamilar with this case.

The Civil Rights Cases effectively struck down the Civil Rights Act of 1875, which (similar to the 1964 CRA) created a federal right against racial discrimination in public accommodations. The Supreme Court held that Section V of the 14th Amendment, which gives Congress the ability to enforce the rights (including equal protection, due process, and the privileges or immunities of citizenship), should be narrowly construed as to give Congress only the power to respond directly to state action, rather than to legislate against private inequities that states help to uphold rather than eradicate. While I agree with Harlan that the majority opinion proceeded “upon grounds entirely too narrow and artificial” and that the result was that “the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism,” Bradley’s opinion was a plausible enough reading of the text; when I say it’s a candidate for the worst decision in history, I don’t mean that it’s a ludicrously implausible or unprincipled opinion in the manner of Bush v. Gore. Still, in the context of past Supreme Court precedents, the decision is quite disturbing. As Harlan notes, it is instructive to compare how the Court interpreted Congressional power when it came to the Fugitive Slave Act (which it upheld although it was not a directly enumerated power of Congress and had very dubious connections to any enumerated powers) with how it construed federal power in this case. Although the Civil War amendments expanded federal power, and although the Civil Rights Act was much more closely related to an enumerated power of Congress, when it came to protecting African Americans rather than using violence to hold them in bondage the Court suddenly became much less deferential to Congress. The effects of this type of reasoning were extremely important. In addition to striking down the Civil Rights Act, the Court also prevented Congress from intervening against terrorist violence that was used to intimidate black voters. The effect of the Court preventing Congress from intervening against private discrimination and violence against African-Americans in creating and maintaining the apartheid system that emerged can scarcely be overstated. Even in its most conservative era, the Court never permitted formal racial discrimination in granting the vote; the ability of whites, with the collaboration of state governments, to threaten blacks with the loss of their livliehoods, credit, property and lives was crucial to sustaining Jim Crow. As Harlan pointed out, the effect of the court’s gutting of both the privileges and immunities clause and Congress’ ability to protect African-Americans represented the return of slavery in a slightly different form. Indeed, Harlan argued that Congress’ enforcement powers under the 13th Amendment were sufficient:

Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations and advantages of public conveyances, inns, and places of public amusement.
I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth amendment; and consequently, without reference to its enlarged power under the fourteenth amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution.

Harlan’s dissent has many remarkable passages, but I think it’s particularly worth singling out this one. We’re often told that, civil rights legislation represents some kind of “special rights.” Bradley made that argument in this case, making the claim that African-Americans had to cease becoming the “special favorite of the laws,” which he claimed was the case under the Civil Rights Act. Harlan demolished this argument in a way that is still relevant in our time:

My brethren say that when a man has emerged from slavery, and by the aid of beneficient legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through Congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more.

It was right then, and it’s right now.

As a historical coda, the Civil Rights Cases remain good law to this day, and their narrow construction of the 14th Amendment has played a role in “New Federalism” cases such as the Court’s striking down an important provision of the Violence Against Women Act. The 1964 Civil Rights Act was upheld under the Commerce Clause, rather than the 14th Amendment, although Congress cited both in passing the legislation. I agree with Justice Douglas that the Court should have taken the opportunity to overturn the Civil Rights Cases, to remove this stain from American jurisprudence and to put Congress’ ability to pass human rights legislation on a more secure and logical footing.

John Derbyshire: One Hell of a Creepy Guy

[ 0 ] December 1, 2005 |


Conservatives, as I recall, are the ones who believe that “human nature has no history.” It follows that we are at ease with the fact that the human female is visually attractive to the human male at, or shortly after, puberty, and for only a few brief years thereafter.

And elsewhere:

It is, in fact, a sad truth about human life that beyond our salad days, very few of us are interesting to look at in the buff. Added to that sadness is the very unfair truth that a woman’s salad days are shorter than a man’s — really, in this precise context, only from about 15 to 20.


There’s really nothing I can say that could add to this. I suppose that I am leading a vile and unnatural lifestyle, as I have found myself rather attracted to numerous women above the age of twenty. I wonder, is that more or less unnatural than being attracted to men? Is there some kind of support group I can attend?

Via Tapped.

LGM Style

[ 0 ] December 1, 2005 |


I think that we are predominantly #3 (niche blogging) with some elements of #1 (meme du jour) and #2 (caterer) styles.

Applied Illogic

[ 0 ] December 1, 2005 |

In comments to my Ayotte liveblogging below, Aspazia asks for further clarification about Roberts’ argument that doctors could challenge unconstitutional applications of the New Hampshire statute before a medical emergency, but not as a facial challenge. The reason for her confusion couldn’t be simpler: Roberts’ position doesn’t make the slightest lick of sense. Dahlia Lithwick explains the issue well:

Justice Ruth Bader Ginsburg adds that for a doctor whose license is on the line, the prospect of a possible “defense” is pretty cold comfort. The doctor doesn’t want an opinion from the attorney general. He needs to know in advance that he’s not violating the law. Justice Antonin Scalia needs to change the subject fast and he does, advising Ayotte to make her other argument—the one about why courts shouldn’t find entire statutes invalid based on a few unconstitutional applications. This leads Roberts to ask, for the first of many times this morning, whether Ayotte would accept a “pre-enforcement as-applied challenge” to the statute, brought by doctors facing prosecution.

I am sure that “pre-enforcement as-applied challenge” means something. Perhaps that the doctors facing potential prosecution could come forward to challenge the statute as applied to all of them before the cops actually knock on their doors. What I can’t quite figure out is how Roberts’ characterization truly differs from the position of the plaintiffs here. Ginsburg makes this point better than I can (she is talking to Ayotte because she can’t just ask Roberts, at least not until they get behind closed doors): “You characterize this as an ‘as applied’ challenge. But how is it ‘as applied’ if the doctor doesn’t have to wait for an emergency?” Justice John Paul Stevens adds, “Do you have to wait until the doctor has an actual patient in his office?” The nice thing about finding a whole statute unconstitutional up front, as the district court and the 1st Circuit Court of Appeals did in this case, is that doctors needn’t wait for some woman to be bleeding on a gurney before finding out what they are and aren’t allowed to do.

Ginsburg and Stevens are, of course, right. If a doctor doesn’t have to wait for an emergency to bring a lawsuit–and you can understand why Roberts doesn’t want to publicly embrace this position, although that would be the logical conclusion of following the Salerno rule–then this case is as good as any. There’s no logical reason why a subsequent lawsuit would be “as applied” if it happens before the statute is actually applied against a doctor who performs an abortion without parental consent; the only difference would be the name of the party bringing the suit. At least as he explained it at oral argument, Roberts’ attempt to split the difference between the two competing lines of doctrine is simply incoherent and unworkable.

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