The Scalias of Justice

I rarely find myself at a loss for words, but Antonin Scalia has made me so.  What is the most apposite term to describe this argument?

The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

Casuistry?  “Specious or excessively subtle reasoning intended to rationalize or mislead.”  Specious implies “having the ring of truth or plausibility,” so that’s out, and excessive subtlety is not the problem here.  Sophistry?  “Plausible but fallacious argumentation.”  Again, plausibility is not in play.  Special pleading?  “A presentation of an argument that emphasizes only a favorable or single aspect of the question at issue.”  What would that favorable aspect be—that crosses are indeed the most common symbol, in some places, of the resting place of the dead?  Chicanery?  “Deception by trickery or sophistry.”  Sophistry (q.v.).  Idiocy?  “Extreme folly or stupidity.”  I’m no formal debater, but I don’t think that an argument from stupidity is what the good Jesuits at St. Francis Xavier taught Scalia, and he is plainly not an idot.  Babbittry? “Narrow-minded self satisfaction with an unthinking attachment to middle-class values and materialism.”  That’s getting warmer, but it’s unfair to middle-class materialists.

Does Justice Scalia actually not understand that the cross is, in the United States, the most common symbol of the resting place of the dead because most of those dead were Christians?  He’s plainly receptive to Ted Cruz [sic], representing the VFW and American Legion, who contends that the cross is not a religious symbol: “For many, many years, we have used the symbol of a Latin cross to memorialize fallen veterans.”

I don’t understand the penchant of so many devoutly religious people to insist that symbols of their faith are otherwise.  Every winter, when The War on Christmasâ„¢ flares up, you can count on some yahoo, who might happen to have a national radio program, insisting that there’s no problem with a crèche on the steps of City Hall—not by a narrow reading of the First Amendment—but because it’s not religious, it’s “historical.”  Of course, considering how things might appear to someone of another or no faith would constitute empathy, and we can’t have any of that in the high court.

Missing Bayard Rustin

Maybe if more people knew who Bayard Rustin was, black preachers wouldn’t be as comfortable pushing anti-gay garbage on their congregations.

The NYT reports that opponents of the anti-gay-marriage initiative in California are worried that it might get buried in a wave of socially conservative African-Americans coming out to vote for Barack Obama, even though Obama himself has come out against the initiative. (Others aren’t so sure; the voting records don’t match the conventional wisdom.)

Somewhere, the spirit of Bayard Rustin is crying out in wordless agony. The political calculation &#8212 fear of gay-baiting and Red-baiting &#8212 that led his colleagues in the civil rights movement (including Martin Luther King, whom he mentored) to refuse him the credit he was due means that now, when it might be useful, Rustin’s name is not one to conjure with. But in the history of the Second Reconstruction, only King and Johnson outrank him in importance, and only Roger Wilkins, A. Philip Randolph, and Thurgood Marshall are his equals.

Biopic, anyone? Lou Gossett, Jr., as Bayard Rustin?

Biden’s speech

“If all you do is walk the halls of power, all you hear are the wants of the powerful.”

Wham! For once, an intelligent populist speech. Biden names specifics, but in the context of his overarching message that government has been working against ordinary folks. That’s what converts a laundry list into a voting issue. He even fits the character attack about McCain’s dishonest campaigning into the same framework.

Purple passages below. Full text at the jump.


Eight years ago, a man ran for President who claimed he was different, not a typical Republican. He called himself a reformer. He admitted that his Party, the Republican Party, had been wrong about things from time to time. He promised to work with Democrats and said he’d been doing that for a long time.

That candidate was George W. Bush. Remember that? Remember the promise to reach across the aisle? To change the tone? To restore honor and dignity to the White House?

We saw how that story ends. A record number of home foreclosures. Home values, tumbling. And the disturbing news that the crisis you’ve been facing on Main Street is now hitting Wall Street, taking down Lehman Brothers and threatening other financial institutions.

We’ve seen eight straight months of job losses. Nearly 46 million Americans without health insurance. Average incomes down, while the price of everything — from gas to groceries — has skyrocketed. A military stretched thin from two wars and multiple deployments.

A nation more polarized than I’ve ever seen in my career. And a culture in Washington where the very few wealthy and powerful have a seat at the table and everybody else is on the menu.

Eight years later, we have another Republican nominee who’s telling us the exact same thing:

This time it will be different, it really will. This time he’s going to put country before party, to change the tone, reach across the aisle, change the Republican Party, change the way Washington works.

We’ve seen this movie before, folks. But as everyone knows, the sequel is always worse than the original.

If we forget this history, we’re going to be doomed to repeat it — with four more just like the last eight, or worse. If you’re ready for four more years of George Bush, John McCain is your man.


If all you do is walk the halls of power, all you hear are the wants of the powerful.


When George Bush called for Social Security to be privatized, John McCain stood with him — he even campaigned for that roundly rejected plan.

When George Bush says that the government has no obligation to re-train or provide extended unemployment benefits for people who have lost their jobs due to trade agreements, John McCain echoes that view, and has said that Bush is “Right on trade… absolutely.”

When George Bush said we shouldn’t investigate why the government’s response to Hurricane Katrina was so incompetent, John McCain stood with him.

When George Bush initially opposed a new GI Bill that would send a new generation of veterans to college, John McCain stood with him, calling Senator Webb’s effort too generous.

When George Bush blocked our efforts to provide health care to another 3.8 million children, John McCain stood with him.

And when, in early 2007, George Bush suggested that the health care benefits you get through your employer should be taxed as income, John McCain stood with him. And now, ladies and gentlemen, John McCain has resurrected that idea, and made it an essential part of his health care plan.


Issue after issue, vote after vote, the story is the same.

In the last 16 years, he’s voted 23 times against the renewable energy — wind, solar, biofuels — we need to free ourselves from foreign oil.

Since he arrived in the Senate over 20 years ago, he’s voted more than 19 times against the minimum wage.

In 1994, I wrote and we passed a Crime bill that put 100,000 new police officers on the street, 3,300 of them here in Michigan, provided shelters and security for tens of thousands of battered women, and helped lead to an eight year drop in violent crime. John opposed the crime bill and the Violence Against Women Act it contained, calling them “ineffective” and “ill conceived.”

Time and again John voted against increased funding for Pell grants to help families with incomes under $55,000 send their kids to college.

Time and again, John McCain voted to make it harder for women to achieve equal pay for the same work — making it harder to prove, and punish, discrimination. He even voted against a study to determine if there is a gap between what men and women are paid. Twice.

Governor Palin says all senators do is vote. Well, just imagine what the country would look like if John’s votes had become the law of the land.

In John McCain’s America, we wouldn’t guarantee that more of energy would come from wind, solar, and other renewables. The minimum wage would still be $3.35 an hour. There would have been 100,000 fewer police on the beat. There would have been no national domestic violence hotline for the 1.5 million women who were in crisis and needed somewhere to turn.

Over 160,000 members of the Guard and Reserve who answered their country’s call and served more than one tour in Iraq or Afghanistan would get no credit towards an education for their additional sacrifice. Fewer parents would be able to afford to send their kids to college. And women who were discriminated against on the basis of pay would more difficulty making their case. Thank God that’s not the America we live in.

John McCain recently said: “the issue of economics is not something I’ve understood as well as I should.” Then he proved it by the advisors he chose to surround him — advisors who have further cocooned him from the reality facing the rest of us. People like Phil Gramm. The man who wrote John McCain’s economic plan actually said, repeatedly, that we’re not going through an economic recession. Phil Gramm says it’s just a mental recession. That we’re a nation of whiners.

Tell that to my friend who flew jets for the Navy and then went to work for a commercial airline for over 20 years — only to see his pension wiped out while his CEO got a golden parachute. Don’t tell me that he is a whiner.

Don’t tell me that the woman I met in Missouri who worked for the Chrysler plant for 13 years making minivans and lost her job when production moved to Canada is a whiner.

Don’t tell me that an engineer who sees his job go overseas because his company has been given a tax break to leave instead of one to stay is a whiner.

Don’t tell me that these people, people who are our nation’s heart and soul — deserve to be treated as economic scapegoats.

These people worked hard, they did everything right, and they’re willing to work hard again. But instead of their government supporting them, their government walked away from them. Nobody stood up for them.

Barack and I will.

What is John’s response to the state of the economy? Let me quote him: “A lot of this is psychological.” Let me tell you something: Losing your job is more than a state of mind.

It means staring at the ceiling at night thinking that you may lose your house because you can’t get next month’s mortgage payment. It means looking at your pregnant wife and not knowing how you’re going to come up with the money to pay for the delivery of your child, since you don’t have health care anymore. It means looking at your child when they come home from college at Christmas and saying “Honey, I’m sorry, we’re not going to be able to send you back next semester.” It’s not a state of mind. It’s a loss of dignity.


Barack Obama believes that progress in this country is measured by how many people have a decent job where they’re shown respect. How many people can pay their mortgage. How many people can turn their ideas into a new business. How many people can turn to their kids and say “It’s going to be okay” with the knowledge that the opportunities they give will be better than the ones they received.

That’s the American dream. That’s what the people in my neighborhood grew up believing. And I want our kids to have the same dream.

Barack Obama starts from that vision of progress and will do what it takes to get us there.

That’s why his tax cuts – benefit the middle class. That’s why he’ll make it easier for families to afford college for their kids. That’s why he says everyone should be able to have the same health care that members of Congress have. That’s why his energy plan will reduce our dependence on foreign oil, bring down gas prices, and, in the process, we’ll create five million new green jobs. Those are the changes we need.

Yes, this campaign is about change, but it’s about even more than that. It’s about what we value as a people. It’s not just about a job, it’s about dignity. It’s not just about a paycheck. It’s about pride. It’s not just about opportunity. It’s about respect. That’s why Barack and I are in this race.

We know we need change if we’re to restore dignity, pride, and respect. We know America’s best days are ahead of us, and we know why we’re here.

Continue reading “Biden’s speech”

Minority report

Foreigners have privacy rights too.

So the Democratic Congress has caved in to Republican fear-mongering on illegal surveillance (ht Glenn Greenwald). Barack Obama has distanced himself from the legislation in a carefully calibrated way that falls well short of outright condemnation of the whole package, though he is at least firmly opposed to the worst element, blanket retroactive immunity for the telcos. (Update: Jack Balkin explains why.)

It’s striking that even the most gung-ho opponents of the legislation like Greenwald agree on one thing: the offence is lawless surveillance of Americans; there’s no problem at all in continuing the NSA’s limitless right to spy on mere foreigners.

Allow this foreigner to dissent. Here’s my minority report of one. Thesis:

The invasion of the privacy of any human being by the the agencies of any government should be subject to law, due process, and proportionality. The public interest in gathering information about crimes and threats to national security has always to be balanced against the private interest in privacy, which is both a a fundamental human right and a bulwark of the public interest in sustaining democratic institutions.

Continue reading “Minority report”

Volokh on the (il)logic of excluding gays from the military

Excluding lesbians isn’t justified by any of the usual arguments for excluding gay men. Yet everyone who supports the latter supports the former. Howcum?

Eugene Volokh shows that none of the usual justifications for excluding gay men from the military extend to gay women. Yet as far as I can tell the set of people who want to exclude gay men but not gay women from service is empty.

Since I’m a rude liberal policy analyst rather than a polite libertarian law professor, I’ll draw the conclusion Eugene merely implies: the basis for DADT and its predecessor policies is bigotry. If you didn’t think gay people were icky, you wouldn’t want to keep them out of the service.

What-we-don’t-know-won’t-hurt-them Dep’t

Mayor Bloomberg, the NYPD Counter-Terrorism Division, and the Department of Homeland Security want to require a police permit for the possession of air quality monitors in NYC. No, seriously.

Mayor Bloomberg and the Counter-Terrorism Division of the NYPD, prompted by the federal Department of Homeland Security, have an original idea for dealing with the problem of localized air-quality problems. They want to require anyone using an air-quality monitor to get prior permission from the police. No exception for research or journalism or legal practice. Apparently &#8212 it’s hard to tell from the article &#8212 no standards for issuing permits.

The excuse for the legislation is to prevent false alarms. There haven’t been any, ummmmm… actual false alarms so far. But better safe than sorry, right? Anyway, the next time DHS and the city government want to issue false assurances about air quality, it’s essential that no one be in a position to refute those false assurances. Anyone who tries to do so must be a nut-job conspiracy theorist in any case; this law will ensure that those people can be accused of either making stuff up or breaking the law.

Since the announced purpose of the legislation is to prevent panic due to false reports, this seems to me like a back-door approach to content-based regulation of speech, which is First Amendment no-no. Can any of my lawyer-readers clarify?

In the meantime, Constitutional or not, the mind-bending stupidity and arrogance embodied in the legislation ought to be reason enough for even David Broder to jump off the Bloomberg bandwagon.

“Ought to be,” of course, isn’t the same as “will be.”

[Hat tip: Michael at]

Update First reply from a law prof: stupid, but not unconstitutional. I’m willing to believe it, but surprised. Isn’t information-gathering necessary to exercise both speech and press rights? Could a city require a police permit for the use of cameras?

Second update A lawyer-reader dissents:

I disagree with the law professor. After reading the article, it seems to me that the law would be unconstitutional.

The article makes clear that the purpose of this proposed law is to prevent the content of certain speech. That is, the pushers of this law want to prevent speech which causes a panic about air quality. The courts analyze laws which affect the content of speech using “strict scrutiny.” Strict scrutiny requires two very tough requirements:

1. Compelling objective: The objective the government is being pursuing must be “compelling.” An argument that the objective is legitimate or rational is not good enough. The objective must be compelling.

2. Necessary means: The the government must choose “necessary” means to achieve the compelling objective. In other words, the “fit” between the means and the end must be extremely tight. The government must demonstrate that no less restrictive alternatives exist to accomplish the compelling goal.

Courts rarely find laws constitutional when they apply the strict scrutiny standard. This is especially true in First Amendment cases.

Neither strict scrutiny requirement exists for this law. No one is causing a panic by using their air-quality monitors. No problem, no compelling interest. The government might argue that preventing a panic caused by false alarms is a legitimate government goal. Indeed, that may be true. But, as above, in order to restrict the fundamental constitutional right of free speech, the government must be pursuing a compelling interest, not a legitimate one. (Of course, an illegitimate purpose is more likely — limiting citizens’ right to learn the truth about their air quality.)

Throwing people in jail for merely having an air-quality monitor is not the least restrictive approach to stopping a false bad air day panic. Indeed, requiring a police permit to have an air quality monitor strikes me as completely unrelated to preventing a panic caused by a false alarm. I really am having trouble even imagining the nexus between a police permit and false reports which cause a panic. What on earth would the requirements for the permit be? How could these requirements be drafted so that they were the least restrictive possible and be necessary to preventing false reports? I just don’t see it.

The proposed law is not only stupid, it’s unconstitutional.

That looks right, to my untutored eye.

One possible analogy would be laws regulating fire alarms. But there the issue is the drain on public resources from false alarms, and the penalty is for the false alarms, not for having an alarm system in the first place.

Third update A con-law professor speaks up, mostly raising queries. (The technique is sometimes called ““Getting to Maybe”. I reproduce his note verbatim, including the parts that are Greek to me. Keep sending ’em, and I’ll keep posting ’em.

I have to say, I find it really scary that this is even a close issue legally.

My first wild guess, just to play along cooperatively, might be that the ordinance, assuming some colorable police power interest, could survive a facial free speech challenge. [insert justifying argument here]

In a proper as applied case, though, the degree of tailoring might be suspect, as it’s unclear at least to me how obtaining a permit to use an air quality monitor tends to ensure that the user will use the monitor conservatively/”neutrally”/correctly/non-alarmistly/ and then responsibly report their results so as not to needlessly frighten the public.

The speech itself would seem to qualify, if not as classically political, at least as speech on matters of genuine public interest and concern. That might help the challengers.

Is the government interest here much different than in the case of any newspaper editorialist/blogger/talk radio host who warns the public of accumulating ozone?

Isn’t the essence of the problem not the allegedly irresponsible monitoring, but the widespread dissemination of allegedly alarmist data or its practical implications?

I’m assuming the ordinance will define an air quality monitor. Non-vaguely. And non-overbroadly.

Is humidty typically measured by an air quality monitor?

Various private weather services report and forecast local air quality in various respects, I assume, without relying entirely on official data.

Aren’t there even kids’ toys/science experiment-type devices to trap/measure soot/ambient air opacity, etc.?

Dormant commerce-clause issues.

And is this really about the weather, or more about Ground Zero contaminant debates, or maybe the aftermath of some sort of chemical attack/contaminant release? I really have no idea.

Has the City of New York considered the possibility of enhancing the reputation of its own official air quality pronouncements for timeliness and veracity rather than limiting (disinterestedly, of course) the competition)?

Notice that if I alarmistly claim (falsely) there’s too much atmospheric ozone, that leads not to interactive panic in the streets, presumably, but mainly to older folks staying indoors until disabused. The gravity of the state interest seems modest.

If I were attacking the ordinance, I might try to vaguely analogize it to attempts to inhibit/license the newspaper and website graphic depictions of precisely where the police or fire runs have been over the previous month/year, which are susceptible of use for distorting real estate sales, etc. Fat chance enjoining such depictions if the data is lawfully obtained.

But I (obviously) have no relevant cases.

Free speech arguments re regulation of guns/gun ranges, even with historical targets, have generally failed, as far as I’ve seen.

Deliberately or recklessly false characterizations of the air, like shouting “intense levels of smoke/oxidation” falsely in a crowded theater, would presumably still be punishable as disorderly conduct.

Has NYC essentially solved all the more pressing problems at this point? How are the public schools doing?

I’m still stuck on whether there’s a principled difference between requiring permits for air-quality monitors (which could be used to produce apparent information with which to spread panic) and requiring permits for cameras and Photoshop (which can be, and have been, used to produce apparent information with which to spread panic).