Eugene Volokh's Blog, page 2621
February 5, 2012
Super Bowl Open Thread
And don't forget the commercials!
UPDATE: And speaking of commercials, some have already sparked controversy. Ford is unhappy about GM's 2012 Mayan Doomsday ad. Also, an ad GOP Senate candidate Pete Hoekstra is running during the Super Bowl on Michigan stations has also sparked controversy.
Georgia Administrative Law Judge Rejects Claim That President Obama Isn't a Natural-Born Citizen
This is the litigation I mentioned when the judge allowed it to go forward earlier this year; the judge has now ruled on the merits that the fact that President Obama's father wasn't a U.S. citizen doesn't keep President Obama from being a natural-born citizen: Anyone born in the U.S., with narrow exceptions (such as that for the children of diplomats) is a U.S. citizen from birth, and therefore a natural-born citizen.
I'm not an expert on this area of the law, but the Georgia judge's reasoning, which echoes the reasoning of a 2009 Indiana Court of Appeals decision strikes me as quite persuasive, as does the much more detailed reasoning in a Nov. 2011 Congressional Research Service report, which reaches the same result.
UPDATE: I originally accidentally omitted the link to the Georgia administrative judge's ruling — I've now added it above.
Recommendations for First Amendment textbook
Next spring semester, I will be teaching a First Amendment class. So I request advice about what textbooks they liked, or did not like, and why.
For the recommendations, please ignore entirely the textbook's treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.
Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett's textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to "the Constitution outside the courts," and not just to Supreme Court cases.
Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment's interplay with the Copyright clause, the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).
Online Audio Spelling Quiz
A few months ago, I asked if anyone could recommend a site that can provide an audio spelling quiz for kids. One of the commenters recommended SpellingCity.com, and we tried it with great success. You (using your parent or teacher account) can set up spelling lists for your kids — there are many you can download from other sites — and then it will pronounce them for the children (who are using their child accounts). The children then type what they think is the right spelling; they get feedback; and you get to see the results on your parent account. There's a modestly priced pay version, which is the one we're using, but also a free version, which seems to have the necessary features as well. So it seems like a very nice teaching tool, and I thought I'd pass along my recommendation.
February 4, 2012
Defending the Humanities, or, Sisyphus
These days the defense of the products and output of the humanities – literature, criticism, the academic study of the arts and letters, etc. – is not an easy task. At least it is not an easy task if one's position is doubly, or even triply-conditioned: First, a defense would have to be of critical thinking in reading and writing, verbal skills, in a forward sense that engages with a changing, technologically driven world, asserting the value of generalist skills in thinking in a world that prizes technical specialization as the key to wealth and success. Second, however, it would have to be a defense of a "traditional" conception of the humanities as a realm of close reason – but without saying that it was better how we "used to do it" and that arts, literature, and criticism should return to how they were when the critic was in college, because by and large it wasn't so great then. Third, it would be no defense at all of the humanities in their current academic incarnation, because they aren't very much about critical thinking, teaching it to students or deploying it in its production; no defense of the current humanities academy, while at the same time urging that its reform does not mean a project in reaction and nostalgia.
The task of defending the humanities is difficult not merely because its academic guardians have by and large failed or given up on the intellectual underpinnings, however. A big part of the problem is that the collapse of the disciplines in their traditional sense has convinced many that the basic problem of the humanities is not that they are badly taught, but that they do not, or no longer, speak to the 'truths' of the world. One economist friend who shares my love of Stendhal remarked to me that it is not that Stendhal is not revelatory of the "world"; it is, rather that literature, as revelatory of human nature and the human world is anecdotal and personal, whereas today we have social science and data. The taste for story, narrative, and literature remain, but merely as taste, not truth. Indeed, he might have continued, we could probably come up with good evidence that our undeniable taste for story and narrative is the product of a biological wiring that seeks to impose order on the world in the form of a narrative; how, then, are we to see Julien and Mathilde as "revelatory," given that they, too, are narrative par excellence? The same for criticism and the genres of thinking associated with the academic disciplines of the humanities that seek to explicate and interpret; one might as well return to Freud.
This is not, note, the customary criticism of the "useless" humanities that these are disciplines that don't produce an obvious rate of return. This new dismissal of the humanities is distinct from the problem of trying to see their value in commercial life. After all, as Tyler Cowen pointed out in one of his finest early books, the most vibrant pursuits of the humanities – pace the prejudices of many humanities professors – are often the product of the most vibrant commercial societies. Why? Apart from having a society rich enough to support so complex a division of labor in a strictly material sense, I suppose it's the relation of sense and sensibility. So much of a vibrant commercial life seems on the surface to consist of "sense" – doing the accounting and figuring the rate of return. Yet the stuff for sale, from ephemeral fashion to the design of the great public infrastructure, is actually "sensibility."
The role of the humanities in this kind of vibrantly commercial society, one which celebrates the high arts and the low arts, high culture and pop culture, is to bring to bear sense upon sensibility, to provide the tools by which to analyze sensibility. Part of which is culture for its own sake, but part of which serves, intentionally or collaterally, to more effectively sell sensibility. Making sense of sensibility seems to me the fundamental task of the humanities; for one to care about that task, really care, one has to think that sensibility is something more than merely ephemeral and contingent taste. Something more than exogenous preference, if you like. One of the biggest problems today, in other words, is that we simply don't much believe that the analysis of sensibility says very much, not merely because the humanities disciplines aren't very good at their own traditional tools, but instead because there isn't much at bottom to say about preference and taste. Curation and categorization? Sure. Analysis? Not really.
There are two different currents here. One is the humanities as disciplines giving up on delivering answers and, in their academic emanations, coming very close to giving up on reason as such. Apart from anything else, it is a position that leaves academic departments ill-equipped to accomplish the proposition on which universities sell these departments, the ability to teach broad analytic and thinking skills to undergraduates, both as a practical life skill and as a public good.
The other is partly an independent phenomenon and partly a move to fill a disciplinary vacuum created by the humanities' academic collapse. It is, unsurprisingly, the rise and rise of social science as a claim to empirical explanation of human nature, on the one hand. And rationalist economics, on the other, providing a deductive structure that applies an elegant (in one sense) and brutalist (in another) reductivism that strips human motivation down to a simple machine that takes the raw materials of desires and runs it through, first, a narrow rational choice modeling, finally to be polished up and modified a bit by a little behavioral economics to adjust for "real" human beings. It's as though the way to explain human beings is to put together a model that mimics the behavior of a human being and tweak until it can't be distinguished from the human being: a Turing Test for social science modeling. Or maybe a Turing Test for being human. It's only the humanities that gave up on the search for truths about human beings in the world. The economists and the geeks of social science never gave up the search, and they (and we) seem to have concluded that the answers are located in purely technical subjects through purely technical thinking. Or at least we behave that way.
It is possible, of course, that this turns out to be true. Human psychology explained by increasingly ramified forms of behaviorism. I doubt it – I think, rather, that one of these days we will conclude that our current reductionist forms of explaining human beings are too reductionist, and that today's austere and "on the surface" behaviorism turns out to be as mistaken as the baroque multiplication of psychological entities that characterized Freud and psychoanalysis. But leave that aside; the consequences for the humanities of turning to purely technical subjects for human understanding are grave. To start with, the new social scientists and economists, working within the deliberately flat and barren propositions internal to their disciplines, strongly bounded rationality, have no larger frame of intellectual history in which to situate themselves, as part of the history of ideas, as something which is not entire of itself. There's a name for the temptation to which it gives rise, one we learned in classes in literature and classics: hubris.
It means, for another thing, that the humanities as disciplines, while they might still (barely) be a way of teaching certain forms of reasoning, don't provide "content" in the intellectual reproduction of commercial culture – at least, not at the fundamental level, at the level of science and applied science. They are not part of the production of new knowledge. Success and advance for society lie in the innovations of technical and applied sciences alone – and the humanities lose a place in the production of these innovations, and become relegated to the status of mere items of consumption. Literature, the arts, criticism, the essay – their social significance lies solely in their role as entertainment. Entertainment is what one does in one's free time, for fun. It is dispensable, and the humanities, too, their raw materials and their analytic products, likewise are dispensable. We didn't use to think this about the humanities, its products, disciplines, and academic efforts. But that's where we are now: fantastically produced and expensive, but their deliverances no longer can claim to reveal anything very important about the world. That role has been ceded to STEM; and, well, The Rest is Noise.
Farewell to the Revista de Libros de la Fundacion Caja Madrid
With sadness I report the closure of one of the world's great stand-alone book reviews, the Revista de Libros de la Fundacion Caja Madrid. For the past twenty years, it has served as the leading literary review in the Spanish-speaking world – edited in Spain, and possessed of a genuinely global grasp of intellectual and cultural affairs. It united deeply informed review essays together with unparalleled contemporary Spanish prose – exquisite and lapidary. I was honored to serve as the Review's political sciences editor. I also authored several essays for it, on the United Nations and global governance, Francis Fukuyama on neoconservatism, Philip Bobbitt on terrorism and the state, that were translated into a Spanish that made me out to be much smarter than I am. (The translator, the Revista's Luis Gago, won awards for his translation, most recently, of The Rest Is Noise.)
The Revista closed because its patron, the Caja de Madrid, is one of the regional Spanish thrifts that has run into trouble – Spain having a particular economic trouble in that its national banks weathered the crisis well, but its regional thrifts financed Spain's construction boom and bust. The economic trouble is linked to a particular political trouble in that the national banks were well supervised by national authorities, while the regional thrifts benefited from the perennial conflicts between national authority in Spain and the regions. I suppose that if I were, say, British, and given my general views on the necessity of a demos for democratic governance, I would probably be a Euroskeptic. But in fact the European project has pulled off several near-miracles, one of which is the integration of post-Franco Spain back into, well, civilization. Elite cultural institutions like the Revista are part of that consolidation and its closure is an enormous loss.
The Revista's closure prompts me to one general comment about book reviews. The collapse of so many stand-alone book reviews as well as newspaper book sections has left a gap in the intellectual genre of criticism. The kinds of book discussions that we often have in blogs is great – inviting authors to present their new books in blog posts, or online roundtable discussions with an author of a new book. These are terrific new ways of presenting the ideas in books made much more accessible by blogs and online resources. But they also have limitations, and one of the most important of these is, to put it baldly, the presence of the author directly on the stage of discussion. Offering a comment on a book in which the book's author will immediately respond changes considerably the sensibility that one brings to making the comment.
The book review as a genre of "criticism," by contrast, depends upon a critical distance from the author in order to focus upon the book. It is hard if not impossible to do if the author as a living presence is hovering nearby. All these genres, the new and the old, have their places, but it is harder than it used to be in part for lack of outlets, especially when the new online resources see their advantage in the ability to bring the author into the discussion directly. I'm unusual in the academic world in liking to write book reviews; I like to read books and like to write about them. And I like reading and writing the sophisticated, polished reasonably short book review essay as its own genre. Most academics see book reviews as a waste of time – not taken seriously in the academy, and are not worth the effort. I agree that is all how it is – but alas, if I were honest about the writing I've done that I most like, it's the highly polished, sentence by sentence edited and revised, review essays I've written for the Times Literary Supplement in particular. I don't think it has ever done anything for my academic career, even in the handful of cases when the essay was widely noted in the academy, but I think it's much of my own best work and the stuff I most like.
So I was excited when the Lawfare national security law blog invited me to become the book review editor; short of becoming editor of the TLS or the Boston Review, this is something I've always wanted to do. But Lawfare is not really a blog; it's a highly edited online journal, run by a long-time journalist with serious editorial skills, and the editors agreed that we should aim in this particular subject area to reinvigorate the traditional book review essay, at whatever length. I'm really pleased with this; reviewers have enthusiastically welcomed the instruction to write as though for a traditional book review, and to expect serious substantive and copy editing. My larger point, however, is that the traditional book reviews cultivated a particular genre with a particular sensibility. The best of the genre had a certain analytic toughness, and it has been harder to come by with changes in media platforms.
A Vote Fraud Conviction in Indiana
Indiana Secretary of State Charles White was convicted of voter fraud, among other charges, this week for lying about this address on voter registration forms and voting in the wrong precinct. White apparently continued to use his ex-wife's address for his voter registration after they split, in part, because he didn't want to lose a modest town council salary for moving out of the district. As Secretary of State, White was the highest ranking elections official in the state.
February 3, 2012
Non-Citizen Voters in Florida
There's much speculation and debate over whether non-citizens and others who are ineligible vote in U.S. elections, but relatively few documented instances. That makes this report by a local television station in Fort Myers, Florida all the more significant. The station's investigation uncovered nearly one hundred non-citizens who were registered to vote, and several admitted to have cast ballots. The non-citizen voters were discovered because they said to be excused from jury service due to their lack of citizenship. The question now is whether this report is symptomatic of a larger problem in Florida, if not elsewhere, or a relatively isolated problem.
U.S. Justices' Foreign Statements About the U.S. Constitution
Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:
In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.
When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, "I would not look to the US Constitution if I were drafting a Constitution in the year 2012." Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, "I can't speak about what the Egyptian experience should be, because I'm operating under a rather old constitution." This directly refutes the U.S. Constitution's relevance today.
For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.
Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, "For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg's comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document."
This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?
To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that's good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.
And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states' constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn't tell us that it would work well for Egypt for the coming years.
Nor do I think that there's something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it's just sensible and sensibly (not excessively or falsely) modest.
And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn't, but you'd have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.
Interesting Discussion of Arrest for Open Carry in a Seventh Circuit Opinion
I'm on the run now, so can't analyze it in detail, but I thought I'd pass it along: Gonzalez v. City of West Milwaukee (7th Cir. Feb. 2, 2012). Thanks to John Tuffnell for the pointer.
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