The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Friday, June 30, 2006

Hamdan: Catastrophe, Disaster, or Mere Annoyance?
Tom Smith

Perhaps the most distrubing thing about Hamdan is that it casts doubt on the whole constitutional scheme under which national security policy is set by those former law review officers who manage most to ingratiate themselves with their professors.  That, and how it undercuts my belief that courts should be able to decide controversies over which a century or so of precedent indicates they have no jurisdiction.  If courts are limited by their jurisdiction, how are they supposed to have fun?  How are their clerks supposed to live up to their self-images?  It is all very distrubing.

But seriously (and what could be more serious than defending ourselves against a bunch of murderous religious nutcases?), the first thing blawgers need to do is get as clear as possible, which might not be very, as to what the law of this juridical coagulation is.  What is the law after Hamdan?  My particular question is, what about all this Common Article 3 business?  Just scrolling through the opinion, which is horridly long, it appears that Justice Kennedy, who entirely coincidentally finds himself casting the decisive vote, does not endorse the theory that -- if I understand it -- Common Article 3 contrains what the United States can visit upon al Qeada, not as a matter of statutory law, but as a matter of customary international law (which I suppose Congress is powerless to amend, since it is formulated not by elected legislatures, but by various Euro-crats, professors, and celebrity philanthropists).  Justice Anthony appears to be saying, and I may be wrong here, having barely read his opinion, that Common Article 3 get incorporated into US law via the Code of Military Justice, which, of course, Congress is free to amend.  So, before we get all excited about a startling reading of CA3 now being quasi-constitutional law of the land, we should figure out if Hamdan actually requires this result.  If it is just the plurality position, well, that is embarrassing enough, but it is less than the outrage that the National Review editors aver. though I can certainly see why they would be upset if it were.  If the Kennedy position is the cash value of the opinion, then (unless I'm missing something, which is only too likely) the effect would seem to be putting the whole balled up mess back in Congress's and the President's hands. 

Of course, this may be worrying about splitting hairs while whole forests get chopped down.  If Justice Nino is correct that his brethren are defying ancient and unbroken precedent in taking jurisdiction at all (and he certainly sounds correct, but then he always does), then worrying about the precise precedential value of a mere plurality seems a bit pedantic.  On the other hand, it seems improbable that such a radical notion as, CA3 would not apply on its face to terrorists, but then its norms get absorbed by customary international law, then that law comes back to bind Congress and the President, as if they had agreed to a treaty that said that, even though they didn't -- to make that go down the collective political craw is going to take more than four votes.  So I for one have elected not to freak out until it is well established that the Supreme Court qua juridical body really has done something so appallingly stupid.  Invoking my professorial privilege to repeat myself, yes, it is disappointing if the Court misconstrued Congress's enactments, both with respect to its jurisdiction and with respect to the Detainee Treatment Act, but the Court misconstrues statutes frequently.  Doing that is not nearly as bad as misreading the Constitution.  As many other bloggers have pointed out, this is something the President and Congress can fix, should they feel up to a modicum of leadership, which is a stretch, I grant you.  And finally, surely Jonah has a point that "terrorists get protected by the Geneva Convention" is not going to play well politically, outside of a few deep blue metro areas.  And still more finally, no terrorists or alleged terrorists are going to get out of jail because of this decision; if anything, it probably delays their release, or accelerates their release into the tender mercies of the Afghan bureau of prisons, which is no bargain compared to Club Cubano.  This may all prove to be too optimistic, but tomorrow is always soon enough to panic.

FURTHERMORE  . . .
Balkanization reaches the same conclusion I did, and undoubtedly on a much more careful reading of the case, which makes me feel good that I have not entirely lost my ability to skim a case in five minutes, which I developed to a high degree in law school.  If it really is the case that under Hamdan that Congress could amend the UCMJ to set up some tribunal system that is sub-CA3 protection-wise, well then, fine.  Let the political branches work it out.  Very broadly speaking, I think liberal pundits greatly overestimate the willingness of legislatures, as opposed to courts, to erect impractically strenuous protections for people plausibly thought to be criminals, especially those of the let's kill the women and children variety.  If you want to see where the smart Democrats are on this one, just watch Hillary. 

On the Article II points, well, I still think John Yoo has the more consistent legal position, and is probably more in line with the original design of the Constitution.  But as Randy Barnett suggests, especially in the GWOT, it is no bad thing if the President has to make some effort to get the demos on board in war-fighting, something at which the Bush administration has proven to be bafflingly remiss, and a weaker reading of Article II may encourage that.

Admittedly, my reaction is partly due to the excessively warm weather in San Diego (global warming?  End of the world?  Or just July?), and my consequent lack of pizzazz, but I get the impression both sides of the media sphere are over-reacting to this opinion.  The BBC mischaracterized it egregiously, as a historic rejection of the whole war on terror, and framing W's response to it as saying he would defy the Court, when in fact he said just the opposite. And I link above to NRO's response that it is something like the end of commandership in chief.  I prefer to think Balkan is right, but we'll see.

June 30, 2006 | Permalink | Comments (3) | TrackBack (0)

Thursday, June 29, 2006

Chinese better at math because their language is different
Tom Smith

Brain studies suggest Chinese students use different parts of their brain to solve math puzzles than do English speakers.

Let's put big billboards with pictures of CHP's on I-8; it might help.

June 29, 2006 | Permalink | Comments (15) | TrackBack (0)

Wednesday, June 28, 2006

Birch Left
Maimon Schwarzschild

It has certainly struck me over the past few years  -- e.g. here, and here -- that a style eerily reminiscent of the old John Birch Society has become more and more noticeable in today's Democratic Party.  Now Josh Trevino has posted in depth on the subject.  It's a superb post.  Trevino recounts the sorry history of the Birch Society, and William F. Buckley's admirable and decisive denunciation of the group's paranoia, extremism, and angry idiocy.  But:

At this point we must ask: why recall the John Birch Society? Why recount its history? What lessons do we draw from it? For the Right, the answer is that it’s a cautionary tale — and it reminds us to be proud of our antecedents [i.e. Buckley] in the movement.

For the Left, it has everything to do with current events.

The American left today is not quite in the position of the American right circa 1960. But it is suffering nonetheless, having been in slow decline for the past quarter-century. Even when it wins the Presidency, it loses the Congress: and even when the President is the inept, uncommunicative George W. Bush, it still cannot make a dent in the ascendancy of its enemies. The end result of this is a group of Americans, identifying as members of the left, that is strikingly similar to the conservative movement of a generation past: inchoate, angry, and prone to “irritable mental gestures which seek to resemble ideas.”

Consider the average member of this group. He (or she) remembers the era of leftist dominance of American politics — and he remembers the beginning of its end, on election day 1980. He is around 50 years old. He is professional living in a coastal enclave, mostly on the Pacific coast or the northeast. His political consciousness was formed by the McGovern and Carter campaigns — and of course the American retreat from Vietnam. He may have grown up in Iowa, or Texas, or Missouri, or Utah — but he went to college elsewhere, and fell in love with the people in California, or New York, or Boston, who were so much more progressive and intellectual than the hayseeds back home. His initial concept of conservatives, which he’s never really abandoned, was formed by Nixonian malfeasance: they’re all crooks and corrupt, in his mind. The ascent of Reagan in 1980, and later the 1994 revolution, came as a profound shock — how could America forget so soon? He is well-off: and the bulk of his working career — and hence the font of his personal prosperity — was spent in the boom markets of the 1980s and 1990s, under Republican national governance in one form or another. He doesn’t think about the implications of that much.

But for all his generally good circumstances, he’s been on the political and cultural losing side all his adult life. He’s tired of it. And he’s found a website which, at last, makes him feel empowered. He is, in short, the typical member of the so-called netroots: the left-wing movement, organized around blogs, that seeks to “take back” this country from its usurpers. The netroots is a movement born of desperation and a sense of embattlement at being on the losing side of historical forces. It sees itself as the inheritor and the guarantor of true American tradition and identity, and it seeks to restore those things to their rightful primacy in national life. Critically, it choose to not merely fight its foes, but emulate them. It sees the prime virtue of its enemies as their ability to win, and if they can just crack the code — if it can grasp the very methodology of victory — then they will turn the tables, and victory will be theirs.

Sound familiar? It is — to us. To the left, it’s all very exciting, and all very new. And so we see the self-proclaimed netroots go through a trajectory very much like what the Birchers went through, albeit in highly compressed time. The elements are all there: the resentment, the conspiracy-mindedness, and especially the leaders with stupefyingly poor judgment married to Napoleon complexes. I’ve noted before that they are “frank proponents of outright mimicry of the mechanisms of GOP ascendacy.” Add to this the horrifying, alienating statements ranging from the mockery of dead Americans at war to the derision of political opponents’ personal sorrows. Add to this the demonization of the very people who should, in a sane world, be their friends — The New Republic chief among them — and the formula is complete. Messianism and paranoia marry to make this.

But... they have no Buckley.

Do read the whole thing.

June 28, 2006 | Permalink | Comments (2) | TrackBack (0)

More From Vienna
Maimon Schwarzschild

No argument (alas for the blood-sports enthusiasts among you) with Tom about Wittgenstein, whom I didn't mean to malign.

Still, it is a little bizarre if Wittgenstein -- a major, if quirky, figure in 20th century philosophy, after all; and a man with a tortured ethical sensibility -- was at school with Hitler; and if he never spoke about it.

In addition to the superb Janik and Toulmin book on Wittgenstein's Vienna, which Tom rightly recommends, I'd add a recommendation of Carl Schorske's "Fin-de-Siecle Vienna: Politics and Culture".  And also Paul Hoffman's "The Viennese: Splendor, Twilight, and Exile".

June 28, 2006 | Permalink | Comments (0) | TrackBack (0)

Somewhat in defense of Wittgenstein
Tom Smith

I couldn't agree with Maimon more that Wittgenstein's Vienna was a fascinatingly weird place. (And here is a really good book about it.)  But linking Wittgenstein with Hitler or with the KGB (which Maimon may not mean to imply with his link to Kimberly Cornish's probably nutty theory) is a bit over the top.  No doubt LW was a passingly strange man, tormented by his homosexuality, and who knows, maybe by his Jewish ancestry as well.  Cornish seems to imply that the very odd Wittgenstein was an obnoxious student, Hitler hated him, and so later Hitler decided to kill all the Jews.  Maybe this is not what Cornish is saying, but even if Hitler did know and hate Wittgenstein (a claim for which the evidence is tenuous at best), it seems likely Hitler would have found some other reason to hate Jews.  Anti-semitism was like a virus Hitler contracted, not the result of a bruising encounter with LW, or so I would bet.  Again, I am not attributing Cornish's views to Maimon, I just hate to see LW maligned for fault other than the many he actually had.  Cornish also claims LW recruited the Cambridge spies for the KGB, which is certainly a sensational claim, and would rock my world if true.  But the evidence for that seems remote too.  You would think if this were true, somebody could dig it out of the now public KGB files.

The biography of LW people seem to like is this one.  I read most of it, and it was good. 

June 28, 2006 | Permalink | Comments (0) | TrackBack (0)

Not too late to give to Yale this fiscal year
Tom Smith

I just got an email from a fiscal official at Yale Law School telling me that if I wanted my name in the this fiscal years roster of donors, I should give right away, tout suite.  Day after tomorrow is the end of fiscal year 2006.  It made me think of this rather controversial piece by Ben Stein, which asks whether Yale is a school or an investment bank.  Yale has an endowment of about $13 billion and lately has been making about 20 percent a year on that, or about $2.6 billion per year.  And that's tax free.  Golly. 

Stein loved his time at Yale Law School, and considers it to have been one of the high points of his life.  I met lots of brilliant classmates there, and I feel lucky to have gotten in at all.  Undoubtedly, being a Yale grad made it more probable that I should be able to pursue a life of moderately enjoyable professordom in San Diego instead of slaving away in a law firm in DC or some such.  But, with several notable exceptions, most of my professors at Yale did not want to talk to me, and I was hardly the only student who had this experience.  One wanted to shout, "Could I start having my Yale Law School experience now?"  In retrospect, I attribute my experience partly to my somewhat annoying personality and my unacceptable politics.  Yale may not be the best place for a libertarian-conservative Catholic from the Rocky Mountains.  If you are a non-religious Jew from the upper West Side, whose politics lean toward earnest ACLU, that would be another story.  Also, I was just spoiled.  I was coming off of individual tutorials with scholar-teachers at Oxford, who were often not very nice, but were always extremely smart and witty, and were obliged to spend an hour talking to you, whether they liked you or not. 

So now the time comes to decide whether to augment or not to augment that $13 billion.  Here's what I have decided.  Someday, I hope to be very rich.  It is an extremely improbable hope, but so what.  I hope to be so rich someday that I will think, oh heck, who cares if they already have $13 billion.  They could use another million (that is, an additional 1/13,000 augmentation, or .0007 percent).  If it hadn't been for Yale, I never would have [insert improbable source of fantastic fortune here]. Besides, what I nice way to let all my classmates know how rich I am now.  And certainly more socially useful than piling up a bunch of kayaks and seal skins and setting them on fire, like those Northwest Indians do.  In the meantime, I'm afraid my hundreds upon hundreds of dollars will have to go the local Catholic parish, a few little charities that help kids, and the like.  Then there is the new refrigerator, and the new oven, not to mention sending my own kids to col, coll, can't quite seem to get that word out.  Just keep saying, the University of California, those are really good schools.  I mean it.  They are.  Really!

June 28, 2006 | Permalink | Comments (3) | TrackBack (0)

Tuesday, June 27, 2006

Jewish Divide
Maimon Schwarzschild

Worthwhile new book about Jewish opponents of Israel: "The Jewish Divide Over Israel: Accusers and Defenders", edited by Edward Alexander and Paul Bogdanor.  The book's contributors, who include Cynthia Ozick, Jacob Neusner, Irving Louis Horowitz, and Menachem Kellner, give a hard look at the anti-Israel intellectuals.  Menachem Kellner is particularly devastating about Daniel Boyarin, "professor of Talmud and hater of Israel".

Read the book.  It's especially timely given the renewed claims on the intellectual left - in the New York Review of Books and elsewhere - that Israel should never have been established, and that it ought to disappear as a Jewish state.

Here is Dennis Prager, a propos, who weighed in recently on "Jews Who Aid Those Who Hate Jews (and America)".

But perhaps the first, and weirdest, Jewish anti-semite in the 20th century was Otto Weininger, a Viennese contemporary of Sigmund Freud, whose (newly translated and republished) "Sex and Character" argues (or at least insists) that Jews are archetypically "feminine" and therefore cowardly, without soul, and without a sense of good and evil.  Weininger committed suicide, logically enough for a Jew with his views about Judaism.  Hitler is reported to have said of Weininger "There was only one decent Jew, and he committed suicide".

Weininger is said to have influenced - or at least to have impressed - Ludwig Wittgenstein, the philosopher (and childhood boarding-school classmate of Adolf Hitler's).  It's hard to top early 20th century Vienna for interconnected weirdness.

June 27, 2006 | Permalink | Comments (2) | TrackBack (0)

Those darn Red Chinese
Tom Smith

Maybe by 'working on' human rights, they really meant "working over human rights activists." A translation thing.

June 27, 2006 | Permalink | Comments (1) | TrackBack (0)

Your Supreme Court at work
Tom Smith

Somewhere between $200 and $1500, the First Amendment kicks in.  That is good to know, and we can all be grateful that the Supreme Court is smart enough to figure that out.  I look at the First Amendment (or actually, just remember generally what it says;  it is not very long, and even old persons can do this) and I see nothing about dollar figures of any size.  But then I look at a table, and see wood, not a bunch of quarks, leptons, protons and God knows what else whizzing around.  It is mysterious world we live in, as the Court so frequently reminds us.  What might it be between those two numbers which causes the transformation in, ah, legal space? I don't know.  But these sorts of phase transitions are not unknown in the physical world.  At 32 degrees Farenheit, as I recall, water transforms itself from a liquid substance which at this temperature can  be mixed with distilled spirits in various heartening combinations, or, or if you just like it straight on the rocks, a few degrees less, and as if by magic, the water turns into crystals, which in turn form the ice cubes you put in your drinks.  Several of these are probably a good idea before reading any of the minority opinions in this case.  And thus, somewhere between $200 and $1500, campaign contribuitions similarly transmorgify from something constitutionally protected to something used by big bad rich people to dominate our democracy by brainwashing voters with campaign ads.  To know this, you have to know a lot about political science, psychology, economics, communication theory and much besides, which our Justices obviously do.  Or at least their clerks.  Their clerks graduated from the top of their classes at the top law schools and know all about these things, which is certainly a relief.  Also, amongst all the books piled on the floor of his mother's house in New Hampshire, one can find where then Judge Souter underlined passages about such things as how political systems work.  And so, we are in good hands.

June 27, 2006 | Permalink | Comments (2) | TrackBack (0)

Monday, June 26, 2006

Julius Rosenwald Biography
Gail Heriot

I saw in the New York Times obits that former Sears, Roebuck CEO Arthur Wood died recently.  He was best known perhaps for his role in building the Sears Tower--which was then the world's tallest building.  His obit reminded me of my intention to blog about another Sears, Roebuck CEO, Julius Rosenwald (1862-1932), whose biography I picked up just recently.

Its title is long:  "Julius Rosenwald:  The Man Who Built Sears, Roebuck and Advanced the Cause of Black Education in the American South."  And that title pretty much tells the story.  But let me elaborate just a tad.  Rosenwald is credited with making Sears the largest mail-order firm in the world.  That's accomplishment enough for almost any man.  But Rosenwald went on to become one of the most generous and creative philanthropists of his generation.  It's for his financing of schools for black children in the Jim Crow South that he is best remembered today. 

It began with a gift of $25,000 to Tuskegee Institute in 1912, which was then under the leadership of the charimatic (and these days much-underappreciated) Booker T. Washington.  Together they devised a plan to build thousands of "Rosenwald Schools" across the rural South with challenge grants to the local government authorities.   The schools were small--just a little better than one room--but they provided a chance at education for thousands of young black children.  In the end, there were over 5000 and 4000 little libraries to go with them.  No doubt there are many Americans alive today who learned to read at a Rosenwald School.

I was on a rather remote island in the South Carolina Low Country about a year ago (I finally got the right shoes), and I came across a rundown structure that I thought might have been a schoolhouse.  Someone had been cleaning it out and there were books thrown away that had been rained on and were beginning to mold.  I picked one of them up--"Great South Carolinians."  Its copyright was 1940. As I was paging through it, I noticed that on its title page it was stamped "For Use in Colored Schools."  I tucked it under my arm and took it with me and wondered if I might be looking at one of the old Rosenwald Schools.  I still don't know, but I like to think it was.

Here's to you Mr. Rosenwald.  Yours was a life well-lived.

June 26, 2006 | Permalink | Comments (2) | TrackBack (0)