Sarah Palin's Federalism

In the speech announcing that she would be stepping down as Alaska governor by the end of July, Gov. Sarah Palin cited several accomplishments by her administration. One that she noted may be of particular interest to those who identify with a federalist philosophy of the Constitution:

Another accomplishment – our Law Department protected states’ rights – two huge U.S. Supreme Court reversals came down against that liberal Ninth Circuit, deciding in our state’s favor over the last two weeks. We’re protectors of our Constitution – federalists protect states’ rights as mandated in 10th amendment.

The two decisions of which she spoke presumably are District Attorney's Office for the Third Judicial District v. Osborne and Coeur Alaska, Inc. v. Southeast Alaska Conservation Council.

Osborne has received significant attention because the use of DNA to prove actual innocence has become so popular and created public interest in the possibility of reducing the likelihood that an innocent person will go to prison for crimes another person committed. The case implicates federalism because Osborne claimed that he had a federal constitutional right under the Due Process Clause to have access to the physical evidence used to convict him, so that he may at his own expense test the DNA found and prove whether it is his.

The Ninth Circuit held that he had such a right; a 5-4 majority of the Supreme Court reversed the Ninth Circuit and said that he did not. Chief Justice Roberts's opinion for the Court invokes federalism, saying that Alaska's courts and especially legislature should determine the conditions under which defendants may have post-conviction access to evidence: "the asserted right to access DNA evidence is unrooted in history or tradition, and would thrust the Federal Judiciary into an area previously left to state courts and legislatures."

So while the 10th Amendment was not explicitly cited in Osborne, the case certainly may be considered to concern states' rights to set post-conviction procedures for new technology without being constrained by federal due process rights.

However, Gov. Palin's reference to Coeur Alaska as a federalism case is puzzling. The case is based on a narrow, rather boring question of statutory and regulatory law, with no reference to the Constitution. The heart of the dispute was over whether a particular permit should be obtained from the U.S. Army Corps of Engineers or the Environmental Protection Agency. Unlike a genuine federalism case such as Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001), in Coeur Alaska there is no question whether the federal Clean Water Act applies to a particular body of water. The only question is from which federal agency the federal law directs one to get a permit to dump waste.

That a 6-3 majority of the Supreme Court held that the correct agency was the Army Corps of Engineers hardly constitutes a victory for states' rights. That the Army Corps of Engineers gives permits for waste-dumping more easily than the EPA may provide a practical victory, but once the federal government has been held to have jurisdiction over something -- a commercial transaction, a criminal act, a lake -- federalism already has lost.

Incidentally, Polar Tankers, Inc. v. City of Valdez, Alaska also was decided last month, but it is unlikely to be mentioned with pride by Gov. Palin for a few reasons, despite having much more of a federalism component than Coeur Alaska.

1) It involved an Alaskan municipal government wanting to impose more taxes.
2) The Alaska Supreme Court got reversed.
3) The Alaskan city government lost at the U.S. Supreme Court, because the Court found that the local tax violated the federal Constitution.

Continue Reading "Sarah Palin's Federalism" . . .

A sad slice of Americana?

"Threat Alert Jesus" is a pretty funny satire until you realize that some people would probably actually buy one of these things, and then it becomes scary.

Continue Reading "A sad slice of Americana?" . . .

Let's get things going again

Though almost nobody has been using (or viewing) this blogspace recently, here was a recent item that caught my eye. A poetically brilliant display of the efficacy of government (image).

Continue Reading "Let's get things going again" . . .

An Exercise in Machiavellianism

Having seen almost all of Ahmadinejad Fest '07 here at Columbia, I personally believe that the event was a huge success for both Columbia University and all who oppose Ahmadinejad's policies alike. In my opinion President Bollinger really hit the nail on the head with his introductory remarks; he invoked the need for an open intellectual debate to truly disarm malignant ideas, while unabashedly attacking Ahmadinejad for his positions on the Holocaust, Israel, civil rights for homosexuals and women, nuclear proliferation, and more. Bollinger went so far as to directly insult Ahmadinejad, calling him "dangerously uneducated" while noting his resemblances to a "petty and cruel dictator." He reminded all observers that as a prestigious forum for important ideas and debates, Columbia's invitation to the otherwise reprehensible Ahmadinejad does not amount to Columbia's approval of any of those ideas, but merely a desire (if not a responsibility) to engage those ideas on their own terms in order to expose their lunacy. Bollinger noted with some clairvoyance that even if Ahmadinejad danced around every question, it would demonstrate to critical thinkers in Iran that Ahmadinejad is avoiding these questions because he lacks of a reasoned response. This front for attack on Ahmadinejad had been tragically underutilized and the event today was an excellent step in the right direction.

Ahmadinejad started off by registering his disdain for the "insults" that Bollinger had slung, and proceeded to make a few "in my country" statements about manners and the proper decorum when one invites guests. As to what Ahmadinejad substantively said (if the shoddy translator was a fair representation, which is subject to some serious doubt, I imagine), his comments reinforced his image of a dictator armed with a copy of Noam Chomsky's latest book. He started his comments by claiming to be a scholar more than anything and launched into a relatively benign discussion of the purposes of science from an Islamic point of view, with convoluted statements about how science is really the pursuit of truth, which is misguided when it seeks after material truths, which are inferior to the spiritual truths that Islam has to offer. Then, he acted indignant at the "insults" that Bollinger had heaped upon him, but refused to address any of his allegations directly, with the exception of the nuclear proliferation (he claimed total compliance with IAEA requirements).

Most of his comments were an exercise in sleight of hand. He would respond to direct questions with questions of his own that were at best tangentially related to the original question, and almost always seemed to be an evasion of a simply put, direct question to him. His responses had the distinct flavor of a liar who denies undeniable factual conditions in order to advance his clearly illusory image of the world. Essentially, one could tell that he was lying through his teeth, even if you came to the debate from a fairly neutral point of view (and if so, I'd like to meet you). Most of his comments were an exercise in sleight of hand. If asked a question directly on the state of affairs in Iran, he would point his finger at the flaws of the United States. One poignant example was when he was asked about civil rights and capital punishment for women and homosexuals, and he responded that capital punishment existed in America, so why shouldn't it exist for those who had committed grave offenses (he cited drug trafficking as an example here). The moderator pressed the point further and asked about homosexuality very directly, and Ahmadinejad said, "In Iran, we do not have this phenomenon. I do not know who told you that we have it." On nuclear proliferation, he claimed that the United States was the real party responsible for dangerous proliferation, while Iran was only pursuing peaceful energy programs. His strategy is certainly understandable, since he was making some legitimate criticisms of certain American and Israeli policies, but came across as a total hypocrite because of the effective moderator, who ensured that the focus was on his policies, not anyone else's.

On the more contentious issues, the Holocaust and current policy towards Israel, Ahmadinejad attempted to be even more elusive. His comments on the Holocaust amounted to an extreme form of intellectual relativism, in which he claimed that there can be no absolute historical truth, which always gives legitimacy to any further efforts to reexamine the past. Again, he attempted to marshal some other positive value (education) for his Holocaust denial conferences, and other efforts to that effect. He specifically connected Holocaust studies to invoke the need to reexamine policy towards Palestinians and whether their current condition is justified based on the existence of the Holocaust (implying that the Holocaust is internationally accepted as the only legitimate reason for Jews to occupy the state of Israel). However, one major point in this event was that Ahmadinejad acknowledged that the Holocaust occurred as a historical fact. He did call for more investigations, but nonetheless conceded this fundamental point. On his Israel policy, he was asked a direct question on whether he seeks the destruction of the Jewish state currently controlling Israel, and he again responded with attention only paid to the plight of Palestinians and claimed that their condition needs to be defended, but did not answer the question at all.

For a man who was so upset about the "insults" slung at him by President Bollinger, he didn't even have the manners to respond to the questions put to him; he avoided most questions and answered with the voice of a hypocrite for the rest. It seems as though President Bollinger's hope, that Ahmadinejad would be ridiculed and exposed as the "dangerously uneducated...cruel and petty dictator" he really is has come true.

I think Columbia won out on this gamble, but I don't speak for the Federalist Society as a whole, and am more than willing to entertain a discussion for those who disagree. Comments are open.

Continue Reading "An Exercise in Machiavellianism" . . .

Ahmadinejad's Visit

Though there is much uncertainty in the outcome of today's event on Columbia's reputation, I am personally proud of the way that Columbia as a whole is handling this volatile situation. After last semester's unfortunate incident involving the controversial head of the Minutemen and the ensuing counter-rally, there is a lot of pressure on Columbia to protect the integrity of the academic forum it provides.

The principles of freedom of thought, freedom of speech and a free market of ideas seem to require that Columbia remain neutral with regard to any political positions it could adopt. However, in order to retain integrity in its standards, Columbia cannot acquiesce to debate some issue simply because it is controversial; there must be some potential insight into new ideas and perspectives (essentially, some education) gained from engaging in the debate. Otherwise, Columbia risks legitimizing an argument that does not even reach the threshold of a coherent argument.

Mahmoud Ahmadinejad is a polarizing figure, not only because of his nuclear ambitions for Iran, but because of baseless, inflammatory comments he has made towards Israel in the past. Ahmadinejad has denied the Holocaust, and has said something to the effect of "the regime occupying Jerusalem should be wiped off the map." These statements cannot be considered a legitimate point of view on an unsettled historical question or a legitimate policy of genocide. Nonetheless, Ahmadinejad has been routinely ignored and outright derided by world leaders who reasonably want to undermine his power, which has the tendency to create a powerful backlash in the populations that are similarly disenfranchised by global powers. This repression sadly amounts to a failure of global leaders to reinforce the principles of freedom of speech and a free market of ideas, which were once the allure of the American way of life. Instead of allowing Ahmadinejad's claims to fail due to their incoherence, his ideas are blocked from discussion and therefore strengthen his position in the eyes of his already-polarized population.

That being said, Columbia invited Ahmadinejad to speak on the condition that he answer questions directly challenging those statements, hypothetically aimed at exposing the untenability of these positions. By actually engaging him and then disarming his arguments, we are far more likely to de-legitimate his position than by ignoring his claims and letting his rhetoric fester in a population without anyone to contradict his claims. Columbia does risk actually enhancing his reputation if people assume that his invitation implies that his ideas are worth "debating." Because of the respect being accorded to this odious character, people fail to draw the reasonable inference that Columbia has invited him here specifically to challenge him. As far as I am concerned, the University has enhanced its reputation for academic independence (which may incidentally exacerbate its "ivory tower" reputation amongst those who find that a bad thing) and somewhat sober intellectual discourse by inviting Ahmadinejad to challenge him.

As far as the student body is concerned, there is another point of pride, with some serious exceptions. The vast majority of the student body is taking this momentous event rather seriously and are engaging in civil, respectful demonstrations and dialog with their opponents. I am very happy that many people are protesting Ahmadinejad personally, as well as his policies, but I am somewhat dismayed with people who are angered at the administration for inviting him to speak. I understand that this may be motivated by a fear for legitimizing Ahmadinejad's positions (and this may be the case--we have yet to see), and that one might not want to give Ahmadinejad one more quantum of publicity than he already has.

However, some much more disastrous arguments have also been advanced. Some have argued that Ahmadenijad is not entitled to enjoy a right of free speech because he is not American (tell that to every legal or temporary resident who is in America temporarily), or because his policies have resulted in executions that kill innocent civilians or violate due process (by that logic, any President--especially Bush--should be protested with the same vehemence). These arguments smack of fascism; the idea that one can selectively allow only certain arguments to be traded in the marketplace of ideas are even more steps toward a slippery slope to a totalitarian society. It is my fervent opinion that ideas must be defeated on their own terms, or else the backlash effect will only motivate those who are disenfranchised by the current state of world affairs to take up arms for "their side."

We will see how the event plays out. I'm sitting on the lawn in front of the screen right now, and will live-blog any momentous developments if they come up.

Continue Reading "Ahmadinejad's Visit" . . .

Jonah Goldberg Fits My Theory

At National Review's Corner, Jonah Goldberg recommends to readers to "Sign up now for cheatneutral.com." The British site proposes to neutralize one party's infidelities by selling "offsets," in the form of another person's promise not to cheat.

Jealousy and heartbreak are a natural part of modern life. And sometimes, no matter how hard we try, it's just not possible to be faithful.

At Cheatneutral, we believe that we should all try to reduce the amount we cheat on our partners, but we also realise that fidelity isn't always possible.

That's why we help you neutralise your cheating. Your actions are offset by a global network of fidelity, developed by us. By paying Cheatneutral, you're funding monogamy-boosting offset projects - we simply invest the money you give us in monogamous, faithful or just plain single people, to encourage them to stay that way.

When you use Cheatneutral, we'll email you a Cheatneutral Offset Certificate, so you can prove to your loved one that your playing away has been successfully offset. Then, you and your partner are both happy, a broken heart is mended, and you can feel good about yourself again, all thanks to Cheatneutral.

And when you need to cheat again, we'll be here for you.

Of course, this satirizes environmental trading such as the carbon offsets that Al Gore uses to justify his enormous energy expenditures.

But the fact that Goldberg thinks this makes any sense helps to illustrate my prior post about the differences in how libertarians, conservatives and liberals view harms that should be illegal. To recap, libertarians require a defined victim who has been clearly coerced or forced into a position; conservatives think such harm can be done to a generalized order even if all the parties most concerned were consenting; and liberals also require a defined victim, but set the standard of "coercion" at a much lower level, such that a society that sexually objectifies women is deemed to have "coerced" some women into prostitution.

Now we know why Goldberg thinks cheating is wrong -- not because of the hurt it causes a specific person, but because of the generalized moral badness it puts into the ethical atmosphere. Ah, conservatives. Meanwhile, to libertarians it's only cheating if the other person actually is hurt by it; otherwise, it's just an "open relationship." And to the economically literate person, the whole comparison is quite puzzling because the whole problem of pollution is of negative externalities, for which offsets are a (perhaps weak) attempt to compensate, whereas sex with multiple partners has "externalities" only in a public health sense.

Aside from public health, however, there is not much reason for a libertarian to restrict sexual behavior between consenting adults. Professor Richard Epstein's support for a legal prohibition on prostitution is thus an odd lapse in his general libertarianism. He has remarked [1](), "In addition [to public health concerns,] I may be sufficiently old-fashioned, but prostitution seems problematic because many of these men are married. They took vows which said 'exclusive unto thee' and now they're in breach of the marriage contract. The law of inducement of breach of contract is generally a recognition of the inadequacy of direct remedy against the other contracting party. Sometimes you have to go after third parties. Much of the common law responds exactly to those circumstances, when you can't get the right wrongdoer it may well be necessary to accept broad restrictive practices."

As Mary Anne Case has noted [2], this makes a very large assumption: that enough of prostitutes' customers are married men whose relationship entails a promise of sexual fidelity and that such promise is broken primarily because of the availability of prostitutes. (In actuality, the much greater threat of divorce is caused by a spouse's straying through an unpaid, romantic relationship that could form a second marriage; prostitutes, in contrast, are a limited substitute for a spouse.)

Indeed, the law already recognizes the one-to-one harm done by infidelity by finding fault with the adulterous spouse in divorce cases. Environmental harms are more difficult to quantify and find specific victims of. Mrs. Goldberg need not give a damn whether the entire staff of National Review is sleeping around; her concern is with her own spouse. I do care a great deal about everyone who pollutes the air I breathe and water I drink, however, because they all have done a tiny, incremental harm to me. Even if I suffer a harm such as aggravated asthma, I cannot sue any individual one of them, because the harm cannot be assigned to a single person's actions. And so we end up with ridiculous, non-justiciable suits by the state of California against automakers.

[1] 41 UMIALR 49.

[2] 18 HVJLPP 369.

The flaws in this chain of reasoning are almost too obvious and numerous to catalogue. To begin with, not all men are married; surely if adultery is the harm it would be possible to prohibit only adulterous prostitution. Moreover, we do not treat marriage, let alone the vows recited during the marriage ceremony, as an enforceable contract; even if we did, we do not specifically enforce, we do not permit speculative damages; we certainly do not criminalize inducement to breach, indeed, we often permit breach. Moreover, we do not allow free contracting over the terms of the marriage contract; if we did, there are many reasons to suppose that not all couples would bargain for fidelity. What the anti-prostitution argument tells us, however, is the strength of Epstein's commitment to traditional marriage even when it contradicts libertarian principles as well as sociobiological evidence.

Continue Reading "Jonah Goldberg Fits My Theory" . . .

Posner on Law and the Legal Profession

Professor/Judge/Writer/Philosopher Richard Posner had some interesting things to say about the law and the legal profession in the context of a piece commemorating his late colleague Bernard Meltzer. Check it out if you're interested in legal academia, and the role you might play in the development of the law.

Continue Reading "Posner on Law and the Legal Profession" . . .

Happy Constitution Day

Today is Constitution Day, and unlike the 4th of July, federal employees are at work and law students are in school...some holiday. Despite the Federal Government's refusal to celebrate it's own birth on the appropriate day, Columbia University is presenting a special exhibit of manuscripts from its John Jay collection, which will be displayed in the Rare Book and Manuscript Library on the 6th floor East of Butler Library.

The law school is also throwing a bit of a "celebration," in true law school fashion: pontification. From 4:30-6 p.m. in Jerome Greene Hall, Room 103, Columbia's constitutional law scholars will be holding a roundtable discussion on the Constitution, featuring Professors Kendall Thomas, Sarah Cleveland, Katherine Franke, Philip Hamburger, Suzanne Goldberg, and Jack Greenberg, with Dean Ellen Chapnick moderating.

Continue Reading "Happy Constitution Day" . . .