Joseph Mazzini on the Nation

(By Andrew MacKie-Mason)

Mazzini was a liberal nationalist in mid-nineteenth century Italy. I came across some interesting passages from an essay of his entitled "On the Duties of Man" (reprinted in Weber, Eugen, The Western Tradition, vol. 2, 5th ed., Heath, Lexington, 1995).

On the purpose of the nation:

In labouring for our own country on the right principle, we labour for Humanity. Our country is the fulcrum of the lever we have to wield for the common good. If we abandon that fulcrum, we run the risk of rendering ourselves useless not only to humanity but to our country itself.

On the duties of the nation:

So long as a single one amongst your brothers has no vote to represent him in the development of the national life, so long as there is one left to vegetate in ignorance where others are educated, so long as a single man, able and willing to work, languishes in poverty through want of work to do, you have no country in the sense in which country ought to exist—the country of all and for all.

Education, labour, and the franchise, are the three main pillars of the nation. Rest not until you have built them strongly up with your own labour and exertions

Something to think about, at least.

Opportunity to Legalize Marijuana

(By Andrew MacKie-Mason)

According to the BLT, voters in California will have the legalization of marijuana as an option on their ballots this fall. This is good news, as the resources spent pursuing investigations and prosecutions of marijuana users can be much better applied elsewhere, especially in a cash-strapped state like California. The so-called "war on drugs," especially minor ones like marijuana, has wasted a huge amount of time and pulled scarce money away from more important law enforcement duties.

Scalia and Breyer on Teens

(By Andrew MacKie-Mason)

A week ago, the Supreme Court Historical Society hosted a debate between Justices Scalia and Breyer about their different interpretative theories. Neither of them expected to convince the other, of course (the BLT calls the debate 'highly stylized') but there were some interesting insights into the personalities of the two Justices. This one excerpt (from an approximate transcript provided by Josh Blackman) particularly struck me:

S: You think that both houses of Congress knew this obscure fact when passing the bill….No! This type of analysis only creates a cottage legislative history industry, in which these things are drafted and handed off to some senator to have read off, or given to some teenager to put in the report and not be voted on.

B: The President of Ford doesn’t do everything, he uses his staff as system of alert. It’s just a system of alert, like how departments make decisions. The staff works for the senator, the Senator does not need to read it all, nor should he have to, he just has a system of alert like everyone else. Even judges have clerks. They have some staff member answerable to the decision maker to bring things to their attention. I have nothing against teenagers, never saw any actually. A senator does not need to read all of everything…that would be unreasonable and inconsistent with reality. The staff is highly attuned to the senator, and I have no apologies for this point of view.

I'm somewhat dismayed that Justice Scalia so easily dismisses the work of "teenagers." If a "teenager" deals with it it must not be taken seriously in the Senate.

Justice Breyer's response, though, seems to be right on the money. "I have nothing against teenagers, never saw any actually." The question, of course, is the quality of the work and how seriously it's taken, not who does it.

Bravo, Justice Breyer. Justice Scalia, try not to use "teenager" as a general term for things you want to denigrate.

The "Right" To Property In Society

(By Andrew MacKie-Mason)

A common recourse, for economic libertarians, is references to the "right to property." Under this theory of right, they claim, it is immoral for a government to tax and spend, because the government has no right to "steal" property from citizens. Do such a broad right to property and the accompanying moral absolutes really exist in modern society?

I would argue that it does not. Even if we consider a right to property as a natural right, giving up that natural right to property is an essential part of participating in modern society. When people choose to be a part of society, they give up certain liberties in exchange for protections and new liberties. One of the things that a modern society demands (in exchange for the many things it provides) is the ability to tax its citizens.

Those who get rich were not forced to be a part of society in the first place. And society (local and national) has played a large role in helping them build their "private" wealth.

Society created the roads that they drive to work on and subsidized the railroads they use to ship their mail. It helped develop the internet and telephone infrastructure that they use for essential communications. It created and maintained the currency that they do business in.

Society provided policemen (who guarded them from theft), fire departments (who stopped their businesses from burning down), and EMS services (who helped them stay alive.) Its courts enforced the contracts that allowed them to build their wealth and prevented other people from obtaining unfair monopolies. It protected the land that they lived and worked on from foreign invaders.

Society created and funded an educational system that almost certainly educated either them or a large number of their employees. It created various systems of certification that helped them know who was able to perform certain tasks.

So what is private wealth? In society it's really just a way of distributing resources to promote productivity and enable people to survive. Economically, everything is so intertwined with everything else that it's impossible to say that certain wealth was created solely by the actions of one person. If a libertarian shows me someone who built their wealth without any help from society, I'll acknowledge that that is wealth that would be immoral to take.

That's not to say there can't be legitimate debates about how much we should tax and whether taxing the wealthy too much will discourage productive work. However, a priori notions of the "right" to property and moral arguments about taxation are not useful in determining how we should deal with taxes.

School Helps Teen Make Own Decisions; Mother Furious

(By Andrew MacKie-Mason)

ABC News had a story about a 15-year-old in Seattle who decided to have an abortion. Upon learning of her choice, the school clinic helped her set up the appointment and provided transportation so that she could get there.

When she found out, the girl's mother was apoplectic:

But even so, the mother is furious that her daughter, who is on the school's honor roll, was given an abortion without the school notifying her parents.

The mother is apparently the kind of parent who not only wants the opportunity to impress her morals upon her daughter from birth but also wants the opportunity to veto every one of her daughter's choices.

Thankfully, Washington is not one of the states where youth must notify their parents before having an abortion. No matter what your stance on abortion, allowing parents to legally terrify their children into not making their own choices is not the path to go down.

Gates Takes Shot at "Don't Ask, Don't Tell"

(By Andrew MacKie-Mason)

President Obama's Secretary of Defense, Robert Gates, announced new rules about the application of "Don't Ask, Don't Tell" last week. The new rules make it so that higher level officers must oversee the fact finding inquiries if someone is outed, and also make some changes to the kinds of evidence that can be considered at those inquiries.

Evidence from third parties (former lovers of military personnel, other members of the military who find out about a soldier's orientation) must now be given under oath. And confidential information told by a soldier to their doctor, therapist, lawyer or a member of their religion's clergy cannot now be considered in the inquiries.

The Obama Administration has called for the repeal of "Don't Ask, Don't Tell," high ranking members of the Obama Department of Defense (civilian and military) have called for its repeal, and now Gates has made application of the existing law more difficult. Things seem to be moving towards a full repeal of the discriminatory policy by the end of the year, assuming that such a repeal can make it through the Senate without being filibustered.

(Story via the Associated Press.)

Judge Reviewing Documents at Unreliable Crime Lab

(By Andrew MacKie-Mason)

The ABA Journal reports that a San Francisco judge is examining over a thousand documents from the crime lab. Why? Because "of a veteran technician suspected of stealing cocaine evidence during her 29-year career there." The ABA Journal website is short on details past that, but Fugitive Watch reports that the technician in question allegedly tampered with evidence while stealing it to feed her cocaine habit.

For those of you who remember my coverage of Briscoe v. Virginia this winter (here, here and here), this is a perfect example of why the rule at question in Briscoe is important. Briscoe and its predecessor, Melendez-Diaz, require the prosecution to bring lab analysts in to testify.

Thanks to television, we often see crime labs as infallible places of science, where the police send a sample and get an impartial result based on the simple reading of a computer screen. In reality though, forensic analysis is a field as subject to human error and abuse as any other. Bringing analysts in to court to testify in person will help remind the jury that there is a human being who they must trust, not just a piece of paper bearing all of the reliability of "science."

Evolutionary Public Consensus

(By Andrew MacKie-Mason)

I've talked about evolutionary public consensus twice on this blog (here and here) and debated it in a comment thread on Josh Blackman's blog. This post will offer a more rigorous definition and defense of the theory now than I've been able to provide before.

Liberal Democratic Government

Liberal (used here in the sense of "liberty") democratic theory supposes that government derives its moral justification from the consent of the governed and its power from its ability to compel obedience. A government based too much on consent will not be able to accomplish anything, and a government based too much on compulsion is tyrannical.

A balance between compulsion and consent is found in the development of written laws. They are consented to by the people, but then enforced against the people later by force. The value of codified laws is that they allow a society to create rules for itself that will apply uniformly and consistently.

Antiquated Laws and Implicit Consent

A problem arises for liberal democratic government in the case of old laws. They retain their power of compulsion for as long as they're enforced; we are still bound by laws passed many years ago. However, they are no longer justified by the theory of consent. Those bound by them now did not consent to the passage of the law, and those who consented are no longer bound by them.

The solution lies in a theory of implicit consent. Citizens of a nation reaffirm old laws by continuing to live under them without repeal or amendment. This reaffirmation is what satisfies the consent requirements of liberal democratic theory and is thus what justifies the enforcement of antiquated laws.

The implied consent to reaffirm old laws is not an immediate event; rather, it is a continual process. It is not found in changes of political winds or short-lived social movements. Rather, the conditions of reaffirmation can be located in modern historical trends, in long-lasting social movements, in the common norms of politicians, in the shared opinions of academics and in common national values.

Law: Codes and Interpretation

The modern legal system is a combination of codified legislation and interpretations of that legislation. Together, the codes and interpretations make up what I will refer to as the law. It is the role of legislatures to affect the codes and it is the role of the judiciary to apply the codes and interpretation to disputes, but who determines what interpretations are properly a part of the law?

Societal Interpretation

Modern society almost always delegates its power to create codified laws to a legislature out of practical necessity. However, the meaning of those codes is necessarily dependent on societal interpretation. Codes are written in the language of society, and the codes take on both the cultural definition and societal interpretation of that language. Vague or subjective language in codes is interpreted in relation to society, not through a different lens.

While the interpretation of the language by legislators is important, ultimately the codes are a creature of society, not of the specific legislature that drafts them. Legislative history can be useful, especially with regard to more technical questions, but it is societal interpretation that is truly dispositive with regard to the broader values that, along with the codes, make up the law.

Modern or Antiquated Interpretation?

Should we interpret laws with regard to the society that produced them or with regard to modern society? The answer lies in the liberal democratic theory outlined above. The codes are written at the time they are passed, be it a year ago or two hundred years ago. Society then implicitly accepts those codes as written, unless it explicitly changes them. However, interpretations are made a part of the law when the codes are consented to. This consent, remember, is a continual process rather than a discrete event.

Thus, as societal consensus evolves, that consensus is incorporated into the law as interpretation. Large and influential social movements, widespread academic thought, shared values, and long lasting political norms all provide clues as to what societal consensuses have been incorporated into the interpretation of law. The interpretation is not subject to the immediate back and forth of politics or to revolutionary but short lived changes in societal belief. It is instead based upon the gradual or evolutionary reaffirmation of the law with regard to changing societal understanding.

Methodology

If it is the role of judges to apply the correct interpretation of the codes to a dispute, how can they do so while being faithful to the theory of evolutionary public consensus? After all, if there is a dispute that needs to be resolved by the judiciary, there is almost surely not a public consensus as to the answer.

Judges should step back from the divisive issue at hand and look instead at what principles they can develop from the theory of evolutionary public consensus. These principles can be determined from the sources listed above, as well as by reference to a judge's understanding of the modern world. Judicial interpretation is not and should not be conducted in an ivory tower, and judges legitimately bring their own understanding of society to the job.

Once these base principles of interpretation are determined, they are combined with the text of the codes and other interpretive codes to arrive at a result. People may agree or disagree with the result, but the underlying principles of interpretation should be based upon broad public consensus. Evolutionary public consensus is not the magic solution to all problems of legal interpretation. However, it is an important part of making sure that judicial interpretation aligns with liberal democratic theories of governance.

Does Originalism Stand a Chance?

Under the theory of evolutionary public consensus, can originalism survive? Yes it can, because originalists and theories of original interpretation are just as much a part of the public discourse as those who hold a different view. The "original meaning" of laws can survive in two ways.

If the interpretation of a certain provision has not changed over the years, originalism and evolutionary public consensus yield the same result and are, practically speaking, identical. The original meaning has survived because the modern meaning is the same.

Originalism can also be preserved if it is itself the modern consensus. If the modern understanding of the law is that it retains its original meaning, originalism will become the primary tenet of legal interpretation under evolutionary public consensus.

However, if originalism is to survive in union with democratic liberalism, it must be recognized as a product of evolutionary public consensus, not as a justification for a result per se.

Has originalism survived in the modern interpretative consensus? That is a question which requires a much more thorough analysis than I am able to give it. My guess, though, would be that under a properly applied evolutionary theory original meaning would be treated as one part of the interpretation, but not the only part. There is, I propose, broad agreement that original meaning should not be completely disregarded. However, there is not a modern consensus that original meaning can be an interpretative system on its own.

New Taxes in Health Care Reform Bill

(By Andrew MacKie-Mason)

This is the second in a planned series of posts on the health care bills that just passed the House of Representatives. H.R. 3590 is the large bill that has passed both chambers of Congress and been signed into law by President Obama. H.R. 4872 is the reconciliation bill that has passed the House but still needs to go through the Senate. You can find the first post in this series here, and all health care reform coverage here.

This post will address the new taxes that will be implemented due to the passage of H.R. 3590. I am operating off of a Democratic Policy Committee section-by-section summary of the legislative text. Tell me in the comments if a different summary or the actual text disagrees with how I've characterized it here.

The following new taxes will take effect:

• A tax on premium health plans. Premium health plans are plans where the premiums cost more than $8,500 a year for an individual or $23,000 a year for families. There are higher limits for people in high-risk professions. The tax would be 40% on the amount that the premiums exceed the threshold. (An individual plan with $10,000 in premiums every year would cost [$10,000-$8,500]*.40=$600 a year in extra taxes.
• The tax on withdrawals from Medical Savings Accounts (MSAs) for non-medical purposes would go up from 15% to 20%.
• The pharmaceutical industry would pay a total of $2.3 billion every year, allocated by market share. This would only apply to companies with at least $5 million in sales.
• A similar $2 billion fee would be imposed on the medical technology industry.
• A similar $6.7 billion fee on the health insurance industry.
• A certain tax on high-income people ($200,000 for an individual or $250,000 for a couple) will be raised by 0.5 percentage points.
• A 5% tax on voluntary cosmetic surgery.

Those are the taxes, as listed in Title IX of the bill. (I didn't include the tax that goes with the individual mandate because that's a different issue.)

FOX News and the "Mainstream Media"

(By Andrew MacKie-Mason)

Every once in a while, when I'm lacking something to write about I watch FOX News. One thing that's repeatedly struck me while watching that channel is the frequency and zeal with which FOX News pundits and commentators (even news anchors) try to separate FOX News from the "mainstream media" (abbreviated MSM in this internet era.)

I can see the appeal of making this distinction. Many of FOX News' constituents have been trained to think that the "mainstream media" is trying to brainwash them. But is this distinction really accurate? FOX News is far ahead of other cable news stations in terms of ratings. The only cable channel (period) that beats it is USA. If anything is "mainstream," it seems to be FOX News.

That's not to say that FOX News is more accurate, more deserving of being watched, or anything like that. But FOX News commentators' "mainstream media" boogeyman seems to be...well...FOX News itself.

Harris Poll of Republicans

(By Andrew MacKie-Mason)

There's a new Harris poll evaluating opinions among self-identified Republicans. It was linked to by Brian Tamanaha at Balkinization. I'll give you the highlights and refer you to the poll or the article for more details.

Republicans who believe that President Obama:

• Is a Muslim (57%)
• Wants to turn over the sovereignty of the United States to a one world government (51%)
• Was not born in the United States and so is not eligible to be president (45%)
• Want to use an economic collapse or terrorist attack as an excuse to take dictatorial powers (41%)
• Is doing many of the things that Hitler did (38%)
• May be the Anti-Christ (24%)
• Wants the terrorists to win (22%)

Perhaps there's a danger to using hyperbole and outright lies to win political points after all.

Discriminatory Southern Proms

(By Andrew MacKie-Mason)

About two weeks ago I reported that a school in Mississippi canceled its prom rather than let a lesbian student attend with her girlfriend. They had originally banned her from the prom, then canceled the event outright when the ACLU filed a lawsuit on the student's behalf.

The ACLU then tried to get the court to order the school to reopen the prom. The judge refused, according to a story on Above the Law. He apparently reasoned that he can't be responsible for planning the event. He did say, though, that the school violated her rights by canceling the prom in the face of her lawsuit.

The local (straight) kids will get to dance, though. Apparently a group of parents is hosting a private prom...at a furniture mart. Lesbians need not apply.

This trend of private, discriminatory proms is not a minor occurrence, apparently. Before it was a gay-rights issue, it was a racial issue. According to the Christian Science Monitor,

Charleston High School in Mississippi held its first racially integrated prom just two years ago. The event came about only after the school accepted actor and Charleston native Morgan Freeman's offer to pay for the senior prom. His only condition: That both blacks and white could attend. Some whites, however, still held their own “white only” prom.

Yes, that's right. It took Morgan freaking Freeman to get this town to integrate their prom, and even then some of the...extremely well educated, respectable, welcoming, not-at-all bigoted people in Charleston, Mississippi felt that they had to have a "white only" prom. Two years ago.

I can't say it better than Above the Law, so I'll give them the last words:

We want to be able to defend the South against stereotypes of racism, and backwardness, and cousin-humping. But stuff like this makes it pretty tough.

State Attorneys General Sue Over Health Reform

(By Andrew MacKie-Mason)

14 attorneys general in various states are suing the federal government and claiming that the health care reform bill is unconstitutional. (Comcast has the story via the AP.) As I've talked about before, health care reform measures are constitutional. (You can see all previous health care reform coverage here.) There are some experts who think that the health care reform bill unconstitutional, but I think most of the people who claim it is unconstitutional realize that it's not, and are just hoping for another Bush v. Gore moment.

These lawsuits are mainly publicity mechanisms for the attorneys general involved. It should come as no surprise to anyone that the person behind this is running for governor of his home state this fall. These frivolous lawsuits will undoubtedly fail, but they may provide a political boost to those pursuing them.

(H/T to the amazing vote_larry for pointing me to the article.)

Council's Holiday Proclamations

(By Andrew MacKie-Mason)

Howard Friedman of the Religion Clause has interesting news from North Miami Beach, Florida. Apparently their "multicultural committee" issued a recommendation to the full city council regarding council proclamations of religious holidays.

Ok, let's just stop right here and acknowledge that it already sounds like a dumb idea. Think of all of the issues that could possibly come up, and then compare those to the minimal benefits. What good does a city council proclamation of a religious holiday actually do? All I can see is the possibility that it will give city employees the day off. But why not just give everyone a certain number of personal days they can use for religious holidays or other purposes?

But I digress. Back to the story. What was the subcommittee's brilliant solution to deciding which of the many possible holidays they would decide to "proclaim?"

Yesterday's Miami Herald reports that under the proposal, council would issue an official proclamation for only one holiday for each religion.

Yep, that's a mature and sensible way to handle the problem. Every "religion" (however you define that) gets one official holiday proclamation. The old question (what's your favorite holiday?) has taken on an entirely new meaning.

But, of course, the subcommittee didn't want to leave only one horrible problem with their recommendation for me to blog about. They wanted to give me two.

The report generated some controversy however because it provides that proclamations should be issued fairly, for holidays of "all legal recognized religions." Committee chairman, Thomas Pinder, says this means no proclamations should be issued for religions considered to be cults or known to practice illegal acts as part of their ceremonies or worship.

Really? We have "legal recognized religions" now? The committee chairman's explanation of the language doesn't even pass the laugh test. "All legal recognized religions" refers to...you guessed it. Religions that are "recognized." If they wanted to exclude "religions considered to be cults or known to practice illegal acts as part of their ceremonies or worship," they would have written "all religions that are not cults and that do not practice illegal acts as part of their ceremonies or worship." They would not have said "all legal recognized religions."

Also, they're going to run up against an interesting First Amendment issue if they try to exclude "cults." As far as I know, "cults" have the same First Amendment protections as everyone else. Maybe the council's saving grace will be that the proclamations are pointless and therefore cannot be considered, in any meaningful way, state establishment of religion.

"Health Care Center" Page

(By Andrew MacKie-Mason)

For those interested, I just put up a "Health Care Center" page with a collection of all previous coverage of the health reform debate. You can access it from the link at the top of the blog or by clicking here.

Constitutionality of Individual Mandate

(By Andrew MacKie-Mason)

I've argued before that the Patient Protection and Affordable Care Act (H.R. 3590) is constitutional. Now I'll specifically deal with the so-called "individual mandate" and respond to a critic of it who thinks it's unconstitutional.

For those who don't recall, the individual mandate is a tax that will be levied on people who don't have health insurance and who can afford to buy it. It was put into place for two reasons: so that people can't "game" the system by not buying insurance until they get sick, and to offset the costs to society of people without insurance being cared for at everyone else's expense.

Ilya Somin, talking about the best way to destroy the new law entirely, writes:

We should also remember that litigation is likely to center on the bill’s mandate requiring individuals to purchase health insurance even if they prefer not to. This is one of the least popular elements of the bill, a fact that would give the courts further political cover. Eliminating the individual mandate might eventually destabilize other parts of the bill. Without the mandate, insurance companies might start lobbying for repeal of other elements of the plan (since the bill would no longer be a huge bonanza that gives them many additional customers). If the ban on excluding coverage of preexisting conditions is maintained, the elimination of the mandate would incentivize citizens to wait until they get sick to purchase insurance. It’s unlikely that such a system could persist for long.

In my view, the individual mandate is unconstitutional because it exceeds Congress’ powers under both the Commerce Clause and the Tax and Spending Clauses. I believe that courts should strike it down regardless of the political situation.

In explaining how striking down the individual mandate would help, Somin undermines his argument that the mandate is, in fact, unconstitutional. As I laid out above, there are two reasons for the individual mandate. The second (offsetting the harm that uninsured people do to society when they get sick) I think falls within the Commerce Clause. But we don't need to even reach that debate. The first reason (making the ban on not accepting new customers with pre-existing conditions effective and not allowing people to game the system) is all we need. As Somin admits, the individual mandate is necessary to make the pre-existing condition provisions effective: without the mandate, people would wait until they got sick to purchase insurance and the entire regulatory scheme would fail.

Professor Somin doesn't accept the constitutionality of the pre-existing condition provisions. In an email (which he has given me permission to reprint here, but which he wants to stress is simply a quick response and not intended to be a detailed analysis) he says that "I think those requirements are unconstitutional. They do not regulate interstate commerce, but intrastate commerce." I think that even though insurance is largely intrastate, it has a large enough impact on interstate commerce to be regulated under the interstate commerce clause. However, that's a separate debate that I don't think we need to address here. In his post, Professor Somin was saying that the individual mandate is unconstitutional per se, not because the underlying provisions are themselves unconstitutional. Such a finding would require the opposite line of reasoning to the one he advocated.

In his emails, Somin goes on to say that even if the pre-existing condition provisions are constitutional as intrastate commerce (presumably as part of a larger regulatory scheme affecting interstate commerce), the individual mandate cannot be carried along under the pre-existing condition provisions. From his emails (which again, are quick and not intended to be thorough):

Under cases such as Raich, Lopez, and Morrison, regulation of noneconomic activity can only be permitted as part of a "comprehensive regulatory scheme" that targets interstate commerce. This one does not. At most, it targets intrastate commerce that has an effect on interstate...

However, an underlying provision that regulates mere economic activity that isn't interstate commerce cannot be used to bootstrap regulation of noneconomic activity - much less complete inactivity, as in this case.

Professor Somin seems to be trying to limit the Necessary and Proper Clause to actions directly authorized by the Commerce Clause, rather than to all actions which Congress has the authority to take. The Necessary and Proper Clause provides that "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." It is broad in its scope. If the underlying power (regulating insurance decisions based upon pre-existing conditions) is constitutional, whether as inter or intrastate commerce, the necessary and proper actions to make that underlying power effective are also constitutional. If a certain regulation of intrastate commerce is a "power vested by this Constitution in the Government of the United States," then provisions regarding it are covered by the Necessary and Proper Clause.

I've glanced over the cases that Professor Somin mentioned (Raich, Lopez, and Morrison) but they all seem to deal with the extent of the Commerce Clause, not with the application of the Necessary and Proper Clause to otherwise constitutional applications of Congressional power.

If Professor Somin wants to attack the underlying provisions (regulation of pre-existing conditions being one, though perhaps not the only one) as a way of bringing down the individual mandate, he is welcome to do so. However, the individual mandate cannot legitimately be attacked per se because it is upheld by the Necessary and Proper Clause until the underlying provisions are deemed unconstitutional.

Scalia and Evolutionary Public Consensus

(By Andrew MacKie-Mason)

In an earlier blog post I proposed a way of looking at the Constitution and other laws. I called this approach "evolutionary public consensus," and described it thus:

Evolutionary public consensus mixes the idea of a living Constitution with the principles of original meaning. In order to find the correct interpretation of the Constitution we must look to how a reasonable, modern person would interpret the document.

The strongest justification for evolutionary public consensus can be found by examining the principles by which the Constitution and other old laws still bind us. In a democratic society, laws are justified because they are passed by the people or by the peoples' representatives. How, though, can this justify the continued enforcement of the Constitution? After all, it was not passed by our representatives. It was passed by a group of people, hundreds of years ago, who have no relation to us now...

What gives past laws force in a democratic society is that the modern generation has the power to change them, but has not done so. The Constitution is not a dictatorial document, because it contains provisions which allow it to be changed or "amended." By choosing not to change the law, people are implicitly affirming it...

Evolutionary public consensus would look to the development of norms of Constitutional meaning. These are not the results of polls, nor are they theories proposed by law professors. Instead, it would be based upon judges' understanding of the social, political, and legal climate of their times, looking for developing consensus of how the Constitution should be interpreted.

Josh Blackman brings us an approximate transcript of a debate between Justices Scalia and Breyer on original meaning and original intent. I think both philosophies are the wrong way of approaching law, so I won't delve into that argument. However, one thing that Justice Scalia said at the beginning of the debate struck me as quite relevant to the idea of evolutionary public consensus.

Justice Scalia: I try to tie it to the people during the founding, not the framers. It’s not about original intent but original meaning. I do so because it depends on consent, which is what people agree to on adoption.

This is exactly the wrong approach, I believe. The public understanding at the time the Constitution (or an amendment or other law) was ratified can tell us what those people were binding themselves to. Their understanding when it was implemented is what gives it authority over people at the time of ratification.

However, as we deal with older and older laws, that approach is less and less legitimate. What power did 18th century British emigrants to the New World have to bind my actions in 21st century America? I think the answer is clearly 'none.' Does that mean we have to rewrite the Constitution for every new generation? Of course not, because each generation implicitly affirms the Constitution by living under it without changing it.

The understanding subscribed to when the Constitution is reaffirmed is the understanding that should be used to determine the meaning of the text. It is the reaffirmation, not the original adoption, that can make old documents legitimately (that is, democratically) binding on a new generation.

Harassment or Assault?

(By Andrew MacKie-Mason)

Howard Friedman at the Religion Clause has news of an Equal Employment Opportunity Commission (EEOC) settlement with a company over anti-Semitic harassment complaints. A description of the "harassment?"

For example, one of the brothers was forced into a trash bin for the amusement of managers in an activity they called "throw the Jew in the dumpster."

Really? Our society calls this "harassment?" I would label it more as "assault and battery."

A previous post by Friedman has more detail:

The complaint alleges unusually harsh anti-Semitic harassment by managers and co-workers, including anti-Jewish slurs, defacing one of the brother's work vehicles with a swastika and and (sic) forcing him into a trash bin to the amusement of managers who watched on a surveillance camera calling the action "throw the Jew into the dumpster."

Ok, ok, I guess "harassment" is accurate. I just hope that somehow the managers and co-workers will be hit with some more serious charges actually fitting what they did. "Vandalism" and "battery" come to mind.

Opinion Article on AnnArbor.com

(By Andrew MacKie-Mason)

Last night I worked lighting for a town hall style meeting on underage drinking. I posted a short opinion piece on the local news site, available here. It begins:

I attended a community forum addressing underage drinking at Pioneer High School today. The forum was hosted by an impressive new group of students named Pioneers Addressing Community Temptations (PACT). The PACT students brought in six panelists from the community: an HVA emergency responder, a City of Ann Arbor police officer, two high school students, a local parent and a local liquor store owner. The panelists as well as other community members talked about ways to deal with the underage drinking problem, and each one brought a different perspective to the discussion.

Even though many strong ideas were put forward and quite a few moving stories were told, I was disappointed with the direction in which the forum went. Each speaker seemed to assume that the consumption of alcohol by minors was in and of itself a problem that needed to be addressed. We heard about the dangers of drunk driving, but we didn't hear anything about the positive effects of exposing teens to alcohol in a controlled manner before they go on to college or take other paths in life.

You can read the rest of the article on AnnArbor.com, and I encourage you to vote for it if you like it. (Voting requires an AnnArbor.com account, and can be done by clicking on the icon to the left of the article.) Pieces with more votes are more likely to be featured on the website or in the printed version of the paper. I of course welcome comments, as always.

The news story about the town hall in question can be found here.

Immediate Provisions in the Health Reform Bill

(By Andrew MacKie-Mason)

This is the first in a planned series of posts on the health care bills that just passed the House of Representatives. H.R. 3590 is the large bill that has passed both chambers of Congress and will now go to the President for his signature or veto. H.R. 4872 is the reconciliation bill that has passed the House but still needs to go through the Senate.

This post will deal with the provisions of H.R. 3590 that will go into effect immediately rather than being phased in over the next four years. I am operating off of a section-by-section summary of the bill posted by the Democratic Policy Committee. If you find a better summary that disagrees with what I post here, or if you read the actual text and disagree, please let me know in the comments.

So what new regulations and guarantees does H.R. 3590 put into place immediately?

• Insurance plans will not be allowed to include lifetime limits on the value of benefits.
• Insurance plans will not be allowed to include unreasonable annual limits on the value of benefits.
• Insurance companies now cannot rescind your coverage unless you lied when filling out the application.
• Insurance will be required to fully cover preventative care recommended by the CDC and other federal agencies.
• People will be able to remain on their parents' insurance plans until the age of 26.
• The Secretary of Health and Human Services can establish standard forms and contracts and specify what information has to be given to consumers about coverage before they sign. This is meant to prevent deceptive contracts and things hidden in the "fine print."
• All full-time employees of a company will have to be given equal health plans. The CEO cannot be given better health benefits than the janitor.
• Health insurance companies must report how much of their revenues from premiums are actually used to pay for health care.
• For the next four years, insurance companies will have to refund their customers unless they spend at least 75% of their revenues on providing health care.
• Insurers will be required to create appeals processes to give customers recourse if their coverage is denied.
• Provides federal aid for the states to review and punish unreasonable premium increases.

But what does "immediately" really mean? Except for the last bullet point, the above will take effect within 6 months. The last point will happen the day the bill is signed.

Keep an eye out (and subscribe to the blog's RSS feed) for future posts about how the bill is funded and what measures will take effect over the next four years.

Ridiculous Child Pornography Laws

(By Andrew MacKie-Mason)

The scope of child pornography laws in the United States has become ridiculous. Prosecutors have used the laws to label young adults as "sex offenders" because they send naked pictures of themselves to significant others.

As the New York Times breaks it down, there are two main categories of sexually explicit picture messages. (Aside: no, I will not call it 'sexting.' Partially because that word is ridiculous, and partially because it is impossible, by definition, to have a sexually explicit picture in a text message.)

There are two basic scenarios. In one, a teenager shares a nude picture, usually with a romantic partner. In the other, a partner, or more commonly an ex-partner, distributes the image.

I would rework it into the following categories:

• A person voluntarily sends (or has someone else send) a sexually explicit picture of him or herself to others.
• A person sends a sexually explicit picture of someone else without that person's permission.

In both cases, the correct 'solution' (if one believes there is a problem in the first situation at all) is clear. Where the transmission of the image is voluntary or with the consent of the people in the picture, no one has committed a crime. If society believes such actions are wrong or dangerous, it should try to educate them (through their parents or through a school) or not allow them to access the relevant technology until they are mature enough to deal with it.

If, however, the picture is distributed without the consent of the person in the photo, a crime has been committed and a victim created. However, I see little reason to differentiate between the picture of a teen and the picture of an adult, other than treating age as an aggravating factor that could increase the possible sentence. The crime is sending a naked picture of another person without their permission, not that that person is a young adult below the age of majority.

Some people may argue that the consent rule will still expose young adults to exploitation by older people. The mental power that the older person has over the younger may remove the younger's ability to consent properly. If that happened, though, it wouldn't fall under the proposed consent exception, since the victim cannot be considered to have properly given consent.

The idea of "ages of consent" (both for sexually explicit images and sexual intercourse itself) is an admirable one, in that we (society, that is) wouldn't want to make prosecutors work hard to convict people. They do enough for us already, and it's clearly easier to just have a magic age than to ask prosecutors and juries to actually think and find that distinction between a couple on either side of that magic age, and an authority figure using his or her power to remove the younger person's ability to make informed consent.

A one-size-fits-all criminal justice system costs less. But can we really say that it is more "efficient" when it leads to so many ridiculous miscarriages of justice?

Health Care Reform Bill is Constitutional

(By Andrew MacKie-Mason)

Randy Barnett, a law professor at Georgetown, wrote a piece about the constitutionality of the health care reform bill that passed the House of Representatives last night (H.R. 3590). His article in the Washington Post sets out to explain the various ways that the health care reform bill could be challenged, though I think it demonstrates a bias towards finding the bill unconstitutional.

I'll go through each of the arguments Barnett raised in his piece and deal with them one by one to show that all of them would ultimately fail. Barnett also has a related post on the Volokh Conspiracy about this issue.

Individual Mandate

Barnett argues that while the Commerce Clause gives Congress the authority to regulate health insurance, it does not give it the authority to impose a "mandate" that people purchase insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

There are two problems with Barnett's analysis. First, the "individual mandate" is not really a mandate. It is not a law that you must buy health insurance or risk going to jail. Rather, a tax is levied on all people who do not buy health insurance. People who do not own insurance 'self-insure' through emergency rooms, community health centers, and other means. These methods of self-insurance come at a cost to society, and so Congress has a legitimate power to regulate such self-insurance through a tax.

Second, Barnett ignores the Necessary and Proper Clause. This clause gives Congress the power to do anything that is necessary to accomplish one of its enumerated powers. There are many aspects of health reform that would be ineffective if there was no incentive for everyone to buy health insurance. By encouraging people to buy insurance, Congress is doing what is necessary to make some of its other regulation effective, which is Constitutional.

The Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other deals

Here, Barnett is talking about special deals that give aid to specific states. These deals were used to get the votes of certain Senators. I do not necessarily disagree with Barnett that these deals are unconstitutional, and I will at least grant him that it is an open question. However, if the courts found that these deals are unconstitutional they would only strike down those deals, not the bill as a whole. (I talked about the morality of these deals and who's at fault for them earlier today.)

The Slaughter House rule

Barnett is employing the deprecating term for the deem-and-pass rule (which I've talked about extensively here, here, here and here). This would have let the House pass both bills it passed today (H.R. 3590 and H.R. 4872) on a single vote. As I've explained before, this rule would have clearly been constitutional. However, it was not used and this point is thus (as Barnett acknowledges) moot.

State sovereignty provisions

Several states have passed or are planning to pass state laws "nullifying" the health care bill, in that great antebellum tradition. This is (as Barnett also acknowledges) clearly not a valid challenge to a federal law. If Congress has the power to pass the bill, the states cannot overturn Congress. If Congress does not have the power to pass the bill, it will be the courts who decide that, not the states.

If you think I haven't sufficiently disproved any of the possible challenges above, or if you have a constitutional concern with the health care bill that I haven't addressed yet, let me know in the comments.

Backroom Deals

(By Andrew MacKie-Mason)

A common criticism of the Senate's health care bill (H.R. 3590, passed last night by the House of Representatives by a 219-212 margin) is that it contained "backroom deals" given to certain Senators to "buy" their votes, including the so-called "cornhusker kickback" that would give Nebraska more federal funding for Medicare for longer than other states. (For an example of such criticism, see this FOXNews article.)

Republicans like to blame Democrats for these special deals, but who's really to blame? Let's consider four different groups of people in the Senate and their culpability with regard to these deals. For purposes of this discussion, disregard arguments about the merits of the rest of the bill, and just consider the backroom deals.

Rank and File Democratic Senators

Democratic Senators who did not demand special deals and who are not a part of the leadership probably have the least culpability. They faced a choice between (a) the full bill including the deals or (b) no bill at all. Thus, by voting in favor of the packet they cannot really be said to have supported the backroom deals; all that can be said is that they were not willing to kill the entire package over the deals.

Democratic Leadership

The Democratic leadership, who caved to the demands of Senator Ben Nelson and others and who added the deals to the language of the bill, seem to have more culpability than the rank and file Democrats. However, in reality, they faced exactly the same choice as the rank and file members. All they could do was include or not include the deals: by not including them, they would have killed the entire bill. Thus, they to faced an all or nothing decision.

Democrats Who Demanded Deals

These people are obviously the most to blame for the favoritism and vote-buying. They were the ones who used their leverage to extort special treatment. Their choice was between (a) the bill without the deals and (b) the bill with the deals. Thus, they each made a decision on the deals themselves, they did not face an all-or-nothing choice.

Republicans

All 40 Republican Senators who refused to even schedule a vote on H.R. 3590 are almost as responsible for the deals as the few Democratic Senators who insisted on them. Each one of them had the individual power to strip those bills of the special deals by virtue of their own, singular vote. Harry Reid would have been happy to strip the "cornhusker kickback" from the bill if a Republican had promised to vote for cloture instead of Ben Nelson. Thus, every single Republican Senator faced the same choice as the Democratic Senators who demanded the deals. They could cause the bill to pass with or without the special deals.

In summary, the choice of every Republican to vote against the bill caused the deals to become a part of the passed bill to the exact same extent as the choices of the Democrats who demanded those deals. Morally, those forty Republicans are as culpable as the three or four Democrats who demanded the deals. Other Democrats would have had to destroy the entire bill to get rid of the deals. The Republicans or the few Democrats could have gotten rid of solely the deals.

So why did the forty Republicans and the three or four Democrats make a decision that almost anyone would agree was morally wrong? Because it was politically correct.

The Democrats who got special deals to their states look good to their constituents. Like any other "pork-barrel legislation," anything that brings additional money into the state is generally good for the Senators, no matter how immoral it is to do so. Voters care about their wallets more than their morals.

For the Republicans, it's an equally simple explanation. They care more about the opportunity to attack the Democrats for including the deals than they do about making it so the deals aren't actually included. If the Republicans didn't want those backroom deals to stay in place, they would have supported the passage of the health care bill or at least proposed their own amendment in the last 3 months to get rid of those deals. They have not, though, because it's easier and more politically advantageous to complain about the deals than it is to fix them.

In related news, the other health care bill that passed last night (H.R. 4872) will get rid of those special deals if the Senate also passes it. Not a single Republican in the House of Representatives voted in favor of H.R. 4872. Let's see if some Republicans in the Senate have the guts to do the right thing rather than the electorally advantageous thing.

More Time In School?

(By Andrew MacKie-Mason)

Chester E. Flinn Jr. (a former assistant secretary at the Department of Education) has a perhaps well-intentioned but overall extremely misguided essay in the weekend edition of the Wall Street Journal. (Because of the way the Wall Street Journal handles subscribers, the best way to find the article is to click here for the Google News search and then follow the first result to the WSJ site.)

The purpose of the essay is to present the case for expanding the role of public education in the lives of American children. Specifically, the "core" subjects: math, science, literature and geography. However, Flinn's essay assumes the value of those core subjects without explaining an overarching philosophy of education, which makes his essay ultimately unconvincing.

Flinn points out that American children spend less time in school than do children in many other countries around the world. He cites reasonable data, and is generally convincing that that is the case. What's the problem with spending less time in class, then?

This additional time spent learning is one big reason that youngsters from many Asian nations routinely out-score their American counterparts on international tests of science and math...

It's not all wasted time but neither are these minutes spent in ways that boost test scores, enhance college-readiness or deepen pupils' understanding of literature, geography or algebra.

What Flinn does not claim, because I think he realizes that he can't prove it, is that better scores on "international tests of science and math," better "test scores," better "college-readiness," or higher "understanding of literature, geography or algebra" will create better citizens of the modern world. The world, especially America, needs more critical thinkers, more people who are able to think through problems, more leaders. School can help with these skills, but it is not the definitive answer. A more structured school environment certainly is not the solution.

Flinn acts as though this acknowledges all of the arguments against a more structured, core-centric school system: "Yes, it will disrupt everything from school-bus schedules to family vacations." This is clearly a straw-man, a weaker opposition created because he is unable to confront the real issues with his proposal.

The American school is already segmented into sections of a day with bells, reminiscent of the industrial-era factories that the school replaced. A strict separation of subjects is adhered to: math in one room, history in another, music in a third. Tests, grades, it all conspires to force students towards success in the core. But the most successful students are invariably those who find their own passions, their own interests. Somehow, through the strict rules of the military academies that pass for public schools, they find a way to pursue their own path.

Flinn would like to see more structure. He wants less "wasted" time, and more time spent memorizing multiplication tables. Less "free" time, more time spent writing analytical essays about literature.

What we need, though, is a shift in the opposite direction: schools need to become less structured and give students more opportunities to find their own class. The educational system needs to provide the opportunities for education and the encouragement to learn, without the overly strict, paternalistic control that is characteristic of the modern school.

We need creativity, and less "core."

[Note: You can see some of my other thoughts on increased structure in the school environment in this post.]

"Deem and Pass" Dies Quietly

(By Andrew MacKie-Mason)

As the New York Times reports, the House of Representatives will have two separate votes on the health care bill today. That's right, two. "Deem and pass," the suggested use of a self-executing rule to pass the package on a single vote, has been dropped.

All in all, I think the Democrats won on this one. They floated an idea, gauged the public reaction, and then decided not to go with it. A few conservatives might try to claim this as vindication for the success of their (irrational) outrage, but I think most voters will quickly forget a parliamentary procedure that was proposed but never used. And if Republicans do try to bring it up this fall, Democrats will be free to respond: "that was never a serious option, it was just one single Representative's idea."

Congratulations, Democrats in the House, and here's to a successful vote!

[You can find my previous coverage here (for an explanation of deem and pass, which was previously called the "Slaughter solution"), here (for a response to critics of deem and pass), and here (for further response to critics).]

CBO Score for Health Insurance Reform

(By Andrew MacKie-Mason)

The Huffington Post has a report on the Congressional Budget Office (CBO) score for the health care reform bill. According to it:

Comprehensive health care reform will cost the federal government $940 billion over a ten-year period, but will increase revenue and cut other costs by a greater amount, leading to a reduction of $138 billion in the federal deficit over the same period, according to an analysis by the Congressional Budget Office, a Democratic source tells HuffPost. It will cut the deficit by $1.2 trillion over the second ten year period.

I don't know about you, but "cut the deficit by $1.34 trillion over 20 years sounds like a good plan. Sign me up for that.

The source said it also extends Medicare's solvency by at least nine years and reduces the rate of its growth by 1.4 percent, while closing the doughnut hole for seniors, meaning there will no longer be a gap in coverage of medication. The CBO also estimated it would extend coverage to 32 million additional people.

In other words, increasing Medicare's efficiency and coverage while making it survive longer at the same time. Shouldn't Republicans be supporting these things?

The full legislation will be voted on sometime tomorrow.

The Supreme Court's "Legal Office"

(By Andrew MacKie-Mason)

An interesting factoid about the Supreme Court comes to us from the Blog of Legal Times. The Supreme Court, it seems, has a legal office.

While understandable (even great lawyers need their own independent lawyers) it does strike one as odd at first glance. Why does a collection of the nine highest legal authorities in the country need advice about what the law is? The office is so obscure it doesn't even apparently rank a page on the Supreme Court's website. The BLT describes its duties:

The Court's little-known legal office was created by then-Chief Justice Warren Burger in 1972 to assist with Court legal matters in a sort of "house counsel" capacity. The office advises on matters including contracts, legislation, and litigation directed at the Court -- such as by protesters arrested in front of the Court. The office also works on some motions and case preparation, and advises on personnel and ethics matters.

It's a reasonable position to have. The justices aren't (and shouldn't be) practicing lawyers. Especially in cases against the justices themselves, it's good to have separate counsel. Still, that's got to be an interesting job. Imagine holding that position: your job is to advise the Supreme Court on questions of law. How do you disagree with your boss, ever?

US Courts and Religious Law

(By Andrew MacKie-Mason)

Professor Howard Friedman (who runs the "Religion Clause" blog) recently posted news of a decision in a North Carolina court of appeals. The case involved a pastor who believed the church had promised him the right to a congregation. The local bishop refused to give him a congregation or a salary, even though he had been instructed to do so. The pastor sued the bishop under state civil law, alleging that he had been wrongfully deprived of wages (effectively a breach of contract claim.)

Both the trial court and the court of appeals dismissed the pastor's suit because they said they did not have jurisdiction to hear it. They said that since the case involved some interpretation of religious law, the courts could not hear it without violating the First Amendment. The appellate court opinion reads (in part):

The United States Supreme Court has interpreted this clause to mean that the civil courts cannot decide disputes involving religious organizations where the religious organizations would be deprived of interpreting and determining their own laws and
doctrine. Thus, the dispositive question is whether resolution of the legal claim brought against a religious organization requires the court to interpret or weigh church doctrine...

To determine his claim, the court would be required to determine, under ecclesiastical law, the compensation to which plaintiff is entitled as an adequate means of livelihood and the appropriate necessities as envisioned in canons 281 § 1 and 384 of the Code of Canon Law, and that which is established by Diocesan Particular law regarding the sustenance of clergy. (internal citations omitted.)

The theory seems to be that the courts cannot interpret religious law, so they cannot determine what the pastor is entitled to as a matter of religious wrong.

I'm not familiar with the precedents on this issue. As a matter of past law, the court of appeals may be correct. However, the result seems wrong to me. While civil courts should not be able to impose religious law upon the population at large (they cannot assign stoning as a punishment for disobeying your parents, though they can punish you for being a stoner while disobeying your parents), the courts should be able to interpret religious laws as a matter of contract law.

If it can be shown that the pastor and the bishop entered into an implicit contract with each other through their membership in the Catholic Church, and if the religious laws of the Church can help enunciate the terms of that implicit contract, then the courts should be as free to interpret the religious law as they are to interpret any other contract. This in no way interferes with the right to free exercise of one's religion.

This brings me to some disappointing news out of Oklahoma. Eugene Volokh reports that the Oklahoma legislature is considering a state constitutional amendment which would ban state courts from considering laws from other nations or cultures, including (apparently) religious laws (the amendment specifically mentions Sharia law, which is the religious law of Islam.)

Professor Volokh lays out some of the potential effects of this amendment. (See his post for the complete list.)

• If a contract calls for the application of (say) Canadian or Mexican law, Oklahoma courts (like other courts) would generally follow the contract (with some exceptions that aren’t applicable to the great bulk of litigation). This is especially so when the contract was entered into in a foreign country, and the parties at the time wouldn’t have even anticipated that the contract would be interpreted some years later in Oklahoma courts. Not any more, if the proposed Oklahoma amendment were to pass.

• If a contract is silent on the choice of law, the sensible Oklahoma statute — in effect since before Oklahoma became a state — provides that, “A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” So a contract that is to be performed in Brazil would normally be interpreted under the laws of Brazil. Not any more.

• If Oklahoma courts are asked to enforce a foreign judgment — a crucial aspect of modern commercial life — they would normally look to the underlying foreign law to see whether the judgment is contrary to Oklahoma public policy, see, e.g., Panama Processes v. Cities Service Co., 796 P.2d 976 (Okla. 1990) (Brazilian judgment). They would likewise look to foreign law to resolve any ambiguous or unclear terms in the foreign judgment. Not any more.

Hopefully the Oklahoma Senate will realize what a bad idea this sweeping change is, and not pass the amendment. Religious and international law plays a legitimate part in our legal system, and we should not let irrational fears of it obscure that fact.

Modeling

(By Andrew MacKie-Mason)

I'm going to step back from my usual political and legal topics for a moment to talk about a philosophical question that's been bothering me.

Determinism is the idea that the world operates based upon fixed and predictable rules. In other words, everything is predictable, given enough knowledge. Of course, practically, we cannot predict the future. For determinists, however, this is a merely practical problem, not a theoretical one. The system is so complex that we cannot comprehend it at a detailed enough level to predict it accurately.

Laplace's demon is the embodiment of the determinist-predictability idea. The demon is a hypothetical intelligence vast enough to comprehend every single little detail of the universe. It would then be able to predict the flow of events based on deterministic cause-and-effect.

The usually accepted problem with Laplace's demon is that it would have to be larger than the universe and separate from it. This is based upon the idea that you cannot model a system perfectly with a less complex system. Modeling the universe would take something at least encompassing the size of the universe, because if you "compress" the data down, you'll lose some, and then the cause-and-effect calculations will not be infallible.

Laplace's demon would have to also be separate from the system because nothing can fully understand itself. This is based on the same theory as above: it would require your brain (at least) to even fully understand your brain, let alone any other part of your body. Because of this, Laplace's demon is treated as an interesting thought experiment but not actually a possibility.

I would like to propose a possible way that Laplace's demon could exist, within the universe. In fact, the demon could be any one of us.

The arguments against the demon implicitly assume that the universe is a collection of extremely small but discreet particles. "Bits," if you will. If that is true, then it would indeed take one bit to model one bit, three hundred bits to model three hundred bits, and a googol bits to model a googol bits. However, that assumption does not necessarily hold.

Imagine, if you will, that the universe is comprised of matter that can be broken down into infinitesimally small pieces. There are an infinite number of these "pseudo-bits," and each pseudo-bit is infinitely small. Imagine, additionally, that the universe operates like a fractal.

Fractals, for those who don't know, are mathematical images that repeat a patter down to an infinitesimally small level. If you "zoom in" on a fractal, it retains its original pattern. (For a good interactive fractal, see this one.) What does this mean? It means that the fractal contains perfect models of itself that are "smaller" than the fractal itself. There is nothing to differentiate the fractal at a high level of magnification from the fractal at a lesser level of magnification.

If the universe operates as a fractal, then one could comprehend the entire thing (and thus predict the future) by looking to a smaller piece of it, not by trying to understand the universe at the human level.

In the more scientific community, the "universe as a fractal" idea is referred to as fractal cosmology. Just something to think about.

Note: This all assumes determinism. True randomness (or quantum indeterminacy) would change the game.

Comprehensive DNA Database?

(By Andrew MacKie-Mason)

Michael Seringhaus, a student at Yale Law School, has an op-ed article in the New York Times. First of all, congratulations to Mr. Seringhaus on his publication.

The argument that he puts forward is this one: DNA profiles or convicted felons, or even all arrestees, is unfair and disproportionately hits certain racial and socioeconomic communities. The solution, according to Mr. Seringhaus is to create a national database with DNA profiles for every citizen of the country.

The argument rests mostly on a claim that people do not have a strong privacy interest in preserving the secrecy of their DNA profiles. In supporting this claim, he makes several legitimate points:

• DNA profiles are created using a part of the DNA strand that have no biological meaning: the government cannot use these profiles to determine characteristics of the person profiled.
• DNA samples used to create the profiles can be gathered with noninvasive procedures such as cheek swabs.

Because DNA profiles are basically only useful for identification when compared to another sample, there's no real privacy issue, is there?

I believe there is. A governmental ability to identify any citizen poses some serious privacy concerns. Even if you believe that invasion of privacy is justified when trying to find a criminal (which I would contest), there is no guarantee that the DNA profiles will be used only to find people who committed crimes. In fact, they could be used to round up the families of suspected terrorists, to determine who had recently had intercourse with a deceased person (even in the absence of indica of rape), etc.

By the same logic used by Mr. Seringhaus to justify a comprehensive DNA database, we could justify the creation of a national database of iris patterns and the creation of a nation-wide system which would track people based upon automatic iris scans in public places.

The government's ability to identify us is a privacy concern, and we must address it for specific technology by weighing the cost and benefits of various factors:

• How accurate the technology is (can it determine a definitive identity, or just likely matches)
• How necessary the identification is to a legitimate governmental purpose (deterring crime, making sure a license belongs to the bearer, etc)
• How much other information the identifier conveys (in the case of DNA profiles, likely familial relationships)

I don't think Mr. Seringhaus' article does a good job of weighing the risks and benefits. He does claim that:

But for law enforcement, the profiles are hugely important: DNA samples collected from crime scenes are compared against a standing database of profiles, and matches are investigated. Obviously, the more individuals profiled in the database, the more likely a crime-scene sample can be identified, hence the president’s enthusiasm to expand the nationwide repository.

However, he doesn't actually give us evidence on the benefits of expanding the database: for example, statistics on how many currently unsolved cases could be solved by a comprehensive database.

Mr. Seringhaus' dismissal of the privacy concerns surrounding DNA samples is largely unwarranted and a more serious look needs to be taken at the costs of such a drastic proposal before it is taken seriously.

Cocaine Sentencing Disparities Addressed

(By Andrew MacKie-Mason)

The disparities between federal sentencing rules for two types of cocaine cases (crack cocaine vs. powder cocaine) is one of the most egregious and persistent injustices in the American criminal system. As the New York Times reports it, penalties for crack cocaine could be up to 100 times higher than penalties for an analogous amount of powder cocaine.

This disparity is not only irrational, it is also in many ways racial. Crack cocaine is culturally a "black" drug, while powder cocaine is culturally a "white" drug. This merely exacerbates the already heavy hand that the black community feels from law enforcement.

The NYT report has some good news, though: Congress is finally looking at this important issue. A bill passed the Senate that would at least start to address the problem. Instead of a 100:1 ratio, the legislation that passed the Senate (and must now pass the House) reduces it to an 18:1 ratio. The bill passed the Senate on a voice vote, meaning there was no significant opposition to it.

Beck and Palin on the Threat of Right Wing Terrorism

(By Andrew MacKie-Mason)

Some big news on the homegrown terrorism front recently was the gathering of the Second Amendment Task Force in Kenai, Alaska. The Anchorage Daily News has a description of the event here (complete with quotations). The gist is that this group believes that the proper way to oppose what they see as a tyrannical government is not through voting, but through the use of bloody, violent force.

Glenn Beck and Sarah Palin weighed in on this issue, perhaps because the extremist right-wing militias can be seen as a radical fringe group off of the Tea Party movement that they've both played a major part in.

Beck and Palin's opinions were, mostly, valid: they said that violence is not the way to achieve change or legitimate leadership in the country. In characteristic fashion, Glenn Beck encouraged us to be more like our founding fathers and less like...people who use violent rebellion to effect political change.

Anyways, here are some comments from the show characteristic of their positions:

Beck: "I appreciate your passion, I really do. But violence is not the answer."
Palin: "Violence is not the answer, but there's legitimate, there's understandable anger."

At some level, I applaud this kind of understanding. One can disagree with someone's methods and still attempt to understand their goals. However, it's easy for Beck and Palin to be this understanding to people with whom they agree. It would be nice if they were equally understanding to all people who misguidedly use or threaten to use violence to achieve freedom from oppression. However, I think it will be a long time before we hear Glenn Beck or Sarah Palin say: "Osama, I appreciate your passion, I really do. I understand that you want to free your country from Western oppression. You have some legitimate, understandable anger within you. But violence is not the answer."

To be clear, I obviously don't think that the threat is equal. I think that while Al Qaeda isn't as big of a threat as we make them out to be (as I've discussed before), these right-wing militias are probably even less so. They're probably comprised mostly of men who like to dress in fatigues and act tough. However, if Beck and Palin are going to (in their position as members of the mainstream media) at least partially condone the feelings that underlie violence, they should at least be consistent about it and acknowledge legitimate grievances held by Al Qaeda as well as by right-wing extremists.

Blog Wins Suit Over Satire

(By Andrew MacKie-Mason)

The ABA Journal reports that a blog won a suit over a satire it published. The satire apparently talked about a rogue giraffe which attacked people after escaping. A Wildlife Center in the area sued the blog because it apparently received a lot of calls from people who weren't sophisticated enough to understand the satire.

I treat this ruling as particularly good news because of my own satire blog, published here. It was created for a school project, though I may even post more to it. Feel free to read and comment, but keep in mind that I was harsher than I may have been in something made purely for my own edification.

Federal Courts Move Towards More Transparency

(By Andrew MacKie-Mason)

The BLT recently reported that the Judicial Conference approved measures to make it easier for the public to access judicial records.

PACER, the federal courts' document access office, used to allow $10 worth of free documents to a user per year. That amount has now been increased to $40 worth of free documents. Also, the cost of digital audio recordings has been dropped from $26 to $2.40. All of this is good news in terms of public access to the courts and judicial accountability.

But what is the Judicial Conference, you may ask? It's the internal policy-making arm of the federal judiciary. Its rules affect District Courts and Courts of Appeal (not the Supreme Court.)

The Chief Justice of the Supreme Court presides over the conference, and its membership is comprised of the chief judge of each Circuit Court of Appeal and of the Court of International Trade, and one district judge from each circuit.

The conference usually meets twice a year, once in March and once in September. The meetings are closed to the public and a press conference is held afterward.

Blind "Patriotism"

(By Andrew MacKie-Mason)

I came across this disturbing article by Andrew McCarthy (via Orin Kerr at Volokh). McCarthy is a former Assistant US Attorney, law professor, and currently is a fellow at the (deceptively named) Foundation for the Defense of Democracies. McCarthy is a conservative columnist who in some ways lives up to the reputation of a more famous person of the same name.

The article in question is aimed at attacking the "Guantanamo Bar" (those private lawyers who volunteered their efforts on behalf of alleged terrorist detainees in cases with very challenging legal questions) and at associating the political Left in America with the radical, militant Islamist movement.

They are anti-American, anti-Western, anti-capitalist, anti-individual liberty, pro-totalitarian, pro-collectivist, etc. They hold that American interventions in the Middle East and elsewhere, especially our military interventions, are exploitations of the Muslim world aimed at robbing its natural resources and spreading Western principles that are anathema to the indigenous culture. Leftists (including leftist lawyers) can easily sign on to much of that without signing on to all of Islamist ideology.

This is a classic attempt at guilt by association. McCarthy takes a hated group, then says that people on the left can agree with "much" of what the hated group says. Therefore, they must be just as bad. Of course, the argument is facetious. If there were something wrong with the views that they have in common, then McCarthy should deal with those views directly. By using terrorists as his intermediary in attacking the political left, he demonstrates an unwillingness (or incapability) to actually debate the issues.

Islam and the Left are not perfectly aligned, but they are substantially aligned, much more so than most people realize. And as I said in my post, the issue isn't so much whether, in a vacuum, Leftist lawyers are pro-al Qaeda or pro-Islamist. It is where their sympathies lie as between two opponents: the United States as it is and Islamism.

This post creates an either/or fallacy. It assumes that the only reasonable positions are to support the United States as it is (the traditional definition of conservatism) or to support Islamism (is that even a word?)

Of course, there are more options. One can support change without supporting all kinds of change. One can even support the goals of a movement like Islamism without supporting its methods. Either/or fallacies are nasty because they allow unscrupulous writers to claim all kinds of evil about their opponents. McCarthy attempts to prop up his either/or fallacy with a false analogy:

I disagree with John McCain on a number of issues that are of great importance to me — more issues than Paul cites as divergences between Islamists and Leftitsts. Yet, I supported McCain for president. Could you say I was pro-McCain? I suppose. But I wasn't dealing with McCain in a vacuum; I was dealing with a choice between McCain and Obama, and on that it was no contest.

By comparing a situation where there are only two options, like an election (unless you count third-party candidates) to a situation where there are more than two options, McCarthy tries to make his original fallacious claim more credible. I wish there were a technical term for using one fallacy to support another fallacy, but I guess I'll just have to go with 'idiotic.'

Another example of guilt by association in the article (just so you have an idea of the prevalence of fallacies in McCarthy's arguments):

The Marxist Center for Constitutional Rights has aggressively advocated for al Qaeda for years.

The rest of the article continues as a rant alternating between condemning the rule of law in cases of terrorism, and claims that people who take up unpopular legal or political causes are traitors. In other words, the article reads very much like the suggestion that membership in a certain ideological group can qualify someone as a traitor. If you disagree with Andrew McCarthy's views on American values, you have therefore committed treason.

Are you, or have you ever been, a member of the Communist Party?

[The astute reader may accuse me of a similar guilt by association fallacy to the ones I criticize above, in that I associate Andrew McCarthy with Senator Joseph McCarthy. However, since they are in fact similar in their views and methods, the similarity of their names serves for comic relief and to make a point, not actually for guilt by association.]

Officer Krupke's Version of the Law

(By Andrew MacKie-Mason)

The Volokh Conspiracy pointed me to a "cop blog" by a person named "Officer Krupke" who at least claims to be a police officer (and I have no reason to suspect he's not.)

The post in question is a story of an incident handled by Officer Krupke, and it was posted last September. I'll alternate summarizing and quoting in order to get through it more efficiently, and then provide my thoughts on the situation.

Krupke was at a park when he sees a car parked off in the distance, and goes up to it to see what's going on.

As it turned out, they were high-school-aged teens and they were drinking beer. Additionally, his pants are open and he’s exposed. It looked like he was getting some action before I rolled up and killed the mood.

He then pulled them both out of the car. The boy (the driver) was apparently cooperative, providing ID and answering the questions. The girl...not so much.

I ask her for her ID and she replies that I don’t have any probable cause to ask her for her personal information. I let her know that I don’t need “probable cause” to request her ID and that me seeing her in the car with the beer is more than enough reason for me to ask for it.

Krupke then gets permission from the boy to look through the car, and find's the girl's purse. He then, without permission, goes through the purse to find her ID.

Because the boy's been cooperative, he lets him go with a citation and a call to his parents to come pick him (and the car) up.

When he tries to call the girl's parents, she says she doesn't have their numbers and makes up some asinine story about it. He then proceeds to again go through her purse (again without permission), finds her phone, and calls the phonebook entry for "Mom". (This is why, in my phonebook, my parents are listed by name and not as "Mom" or "Dad".)

She now gets upset and jumps up, launching into a profanity-laced tirade, so I grab her and cuff her and put her in my back seat, explaining as I do that she’s not under arrest yet but that she is being detained “for her safety and my own”.

The boy's parents showed up and took him away. Then the girl's parents showed up.

She began to argue with her mother at this point, and in no time at all, she yelled “Fuck you, bitch!”

Her mom immediately and without hesitation slapped her face. Hard. I mean, that slap cracked so loud that it produced an echo.

The girl tries to get her mom in trouble with the cop for hitting her. (By the way, Krupke has determined by this point that the girl is over 18 but under 21.) His response?

But I told Jennifer that I’d been looking away and hadn’t actually seen the slap. I also told her that I’d heard something, but that it just sounded like a parent giving her kid some basic discipline. Mom looked at me, grinned, and mouthed “Thank you” and I gave her a wink as Jennifer ran to their car and got in the back seat, slamming the door shut.

He then proceeds to let them go until the court appearance.

So what are the problems with how Officer Krupke dealt with this particular situation? First, let me say that he is perfectly in the right at the beginning. He had every right to approach the car, and upon seeing the beer and apparent minors, had every right to ask for identification. (The police generally don't need any reason to ask for identification.) However, Officer Krupke went beyond his power the moment he opened the purse.

Even though the boy had given the officer permission to search the car, the boy had no power to authorize a search of the purse. The purse belongs to the girl, not to the boy, and thus she has control over it. The officer needed her permission to go through it, both when looking for the identification and when looking for the phone. His justification for searching the purse?

I explain that the owner of the car gave me consent to search the car, and the purse was unattended in the car, so yeah, that means that I get to look in there.

This is an example of the principle, "a little [legal] knowledge can be a dangerous thing." What Officer Krupke is hinting at here is the principle of abandonment, where abandoned property no longer has a protection against search. However, the purse was clearly not abandoned. It was set in a car as a temporary storage place, not abandoned. And the owner of the purse, not the owner of the car, has Fourth Amendment protections over the interior of the purse.

(It's also irrelevant that the officer didn't intend to use anything in the purse as evidence in a trial. It's illegal for officials to conduct an unwarranted search, whether or not prosecution is the goal.)

I also have serious problems with the officer's handling of the slap. He acknowledges (in his own biased account, keep in mind) that he was aware that the mother slapped her (adult) daughter, hard. He admits as much, and he admits falsely pretending not to have heard the slap in order to avoid having to do anything about the mother.

Now, I'm not suggesting that the mother necessarily deserves to be arrested, or even written up. Not every slap in public demands criminal sanctions. However, there are two points to keep in mind: if either the girl or her mother had slapped the police officer, he would have almost certainly arrested them for assault, and if the girl had slapped her mother he would have almost certainly done something had the mother asked.

Criminal prosecution, or even citation, of the mother probably wasn't the best route. The officer should let families work out their disputes internally as best as possible. However, pretending not to know about an assault that he does know about is extremely unethical. At the very least, he should have written an official report that mentioned the slap. For all he knows, there could have been domestic violence happening on a legitimate basis. He made a snap judgment ("I like the parents, I don't like the daughter") and thus avoided fulfilling his duties. If an official record had been made, even if no action was taken, it would have created a fuller and more truthful historical record if there were later problems.

Officer Krupke clearly enforces the law based upon his person like or dislike of the people he encounters. It's obvious that he subscribes to the "respect the cops, even if they're doing the wrong thing" philosophy, which I think is one of the most dangerous philosophies in modern society. I suspect that his type is all to common among police officers, but that doesn't make it alright. The police have a duty to enforce the law, and they should not sacrifice their integrity in favor of enjoying the power they wield.