FRENZIED LEFT

Before I sign off until Monday, let me celebrate: I'm a member of the frenzied left, at least according to Hugh Hewitt (scroll down; no permalinks, so just look for the post from August 6, 7:35 a.m.). I appreciate the mention and the link from Hewitt; I can't say I'm a big fan of his, but I welcome the chance to have had a type of dialogue with a real-life, professional pundit.

Unlike his view of Jim Joyner and Larry Solum, though, Hewitt apparently really thinks that I am a member of the "frenzied left" -- at least, unlike Larry and Jim, I haven't heard anything from Hewitt to make me think otherwise. Which is good, because that probably means I get to keep my "Vast right-wing conspiracy decoder ring" for another election cycle. I sleep with it under my pillow at night, actually.

MORE: Sorry, Chris, I can't access my archives right now and can't seem to access your blog to find the precise post where you mention my ring, but, hey, it's Friday and time to turn off the computer for a while.

MORE: Hugh Hewitt sent me a very friendly e-mail snatching me from the company of the frenzied left, and Jim points to a post from Hewitt that already clarified the matter, unbeknownst to me (sorry!):

I also want to point out my poor paragraphing below may have led some folks to conclude that I was lumping OutsidetheBeltway, Marstonalia, and LegalTheoryBlog among the frenzied leftists like Joshua who are pulling out all stops to defend the new Catholic test. I had intended to underscore how these blogs treated the controversy with responsibility, not rhetoric. Paragraphing is a perilous business. My apologies to these three fine sites. (8-6, 5:45)

But. . .but. . .I like Howard Dean! Really! That should count for something. . .

More seriously, I do think that the Democrats on the Judiciary Committee should be defended, and I have tried to do so, although I'm really not as clear-minded on these issues as I'd like to be. I'd link to posts where I try to defend the Democrats, but Blogger's lost my archives for some reason. Oh well!

CHADS

My pick-me-up reading for today is here, courtesy of Rick Hasen.

Is urging federal judges to extend Bush v. Gore's equal protection arguments to apply to punch card ballots in the California recall election tantamount to counseling "judicial activism"? My gut response is: you folks federalized this issue, now live with it -- if you want to be consistent, that is (unless the curious "Presidential elections are special, especially this Presidential election" reasoning is going to carry the day). My response is a little cranky, I'll admit, but before Bush v. Gore, such a claim would have seemed like request for judicial activism, or, at least, you would have expected conservative judges to argue that it would be activism. Now I'm not sure that such a statement can pass the "smirk test."

ROBERT SAMUELSON ON MEDIA OWNERSHIP

It's tough to discuss the FCC's controversial June ownership rule changes without mentioning what dissenting FCC commissioner Copps called the "Clear Channelization" of radio, a process that resulted from the last big wave of media regulation. That would seem to be the natural case to study if you want to try to predict what consolidation in free TV will accomplish -- it's not a perfect analogy, to be sure, but it's tough to do without a discussion of radio if you want to both understand the outcry and guess what might happen in TV. Unless you're Robert Samuelson, that is. Read his editorial here, and read Copps's statement here (PDF file). Samuelson basically states Michael Powell's arguments without acknowledging any of the [radio-related] fears that led to the vigorous dissent of Copps and Adelstein (his statement is here as a PDF file). For Michael Powell's defense of the rules, you can go here (PDF file as well).

RECENT ISRAELI MARRIAGE LAW

More on Israel's recent marriage law from Josh Cherniss here and here, in dialogue with Eliana Johnson here and here. (Thanks to Will Baude for initally alerting me to Eliana's comments.) As is necessary, the discussion encompasses a lot of important things, but it seems to me worthwhile to focus on the particular law in question: a one-year moratorium on Israeli citizenship for Palestinians who marry Israeli Arabs.

I'm not sitting in the Knesset so I haven't heard all of the testimony, but I find it hard to believe that this law can really be justified as a security measure, as opposed to as a measure intended to raise the costs of obtaining Israeli citizenship in the interest of either discouraging Palestinians from attempting to become Israeli citizens or laying the groundwork for additional restrictions in the future (if these ones are politically palatable). Cross-national marriages seem to me to be one area where the power of the state is excercised largely for ascriptive reasons (to borrow a term from Rogers Smith) that impose actual hardship on real people who simply had the "bad luck" of falling in love across national borders. My sentiments here aren't nearly as interesting as Josh's and Eliana's, though, so go read their posts.

EMAIL OK

Looks like Oswego has fixed its e-mail problems, so now I'm back in business.

HIGH COURT DECISION ON WEB SITES FOR GERMAN DOCTORS

The Bundesverfassungsgericht has overturned lower court decisions that found that a web site for a private health clinic should be banned because, among other things, its commercial-sounding slogans trivialized the medical profession (according to existing law) and because it encouraged patients to engage in self-medication. Read an account of the decision at RP Online, here, and the decision itself here. The owner of the clinic argued that the decision interefered with established rights to pursue a profession (Berufsausübungsfreiheit).

As far as I can tell from the decision, the lower courts were concerned by one of the clinic's web slogans, "What we can do for you depends on what you've got," which they considered too close to a guarantee that the clinic could actually heal patients. A relevant category of German law (about which I know nothing) is the "marktschreierische Werbung," which seems to mean something like "exaggerated or false promises in advertising," and which are prohibited by law. It seems that the concern for the lower courts was safeguarding a non-commercial approach to medicine and that this category of advertising is particularly damaging in the context of medicine. The Bundesverfassungsgericht didn't think that this slogan was an exaggerated or false promise, however:

No reasonable reader would interpret the phrase to mean a guarantee of successful treatment. (Kein verständiger Leser wird die Formulierung so deuten, dass für die Behandlung eine Erfolgsgarantie abgegeben wird.)

The case is interesting, I think, for several reasons. In general German law is more paternalistic (one of my correspondents used the term "protectionist") in commercial relations, so this case is a good one if you want to get some of the contours of the German approach here. But it is also significant that in this case the highest constitutional court seems to be safeguarding a more tolerant approach to the use of the internet, in contrast to the approach of the lower courts.

Secondly, the issue of the relationship between the traditional professions (medicine and law, especially) and the modern economy is a fascinating one because all sorts of things come together here: the desire of professional organizations to safeguard their image of neutral competence (and, with it, restrict access to the profession and benefit current members), the need for the public to be protected against unscrupulous experts, and market pressures toward innovative uses of new technologies such as the internet.

Finally, this case in particular is pretty interesting because it raises a question about anonymity. The names of the parties in the case are withheld (except for the first letter of the last name; you also know that the doctor who defended the site is female), but one newspaper account gave the location of the clinic as "near Ulm." It's not that hard to find a web site that fits the following characteristics: it's for a "Gefaessklinik" near Ulm, and one of the main doctors is female whose name starts with the letter "B," and the site has a list of ten things you can do to keep your circulation healthy (and reading the descriptions in the opinion will give you additional clues). I'm not saying that I've found the newly revamped site, but it's not hard to find one that looks suspiciously like the one mentioned in the case. I don't know enough about German journalistic practice as it intersects legal practice to know why the papers don't name the clinic. Is it a matter of law or custom? Even though I think that it's ultimately hopeless to try to keep these things secret, especially if the subject is web advertising, I kind of like the idea of restraint and won't link to the site that I've found. You can find it if you spend a few minutes searching.

For another question concerning German law and internet advertising, see my post here and papascott's post here.

FEDERALIST #37

For the sake of a little sanity on the judicial nominations front, I wish that Federalist #37 were as canonical as Federalist #78. Here's a crucial passage from the former, with emphasis added:

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

This passage raises questions both for Republicans who decry "legislating from the bench" and for certain kinds of political scientists who argue that all judicial decisionmaking is really akin to legislative policy-seeking. Madison wants to argue that there are specific characteristics of judging, legislating, and performing the functions of the executive, but that there will always be a certain indistinctness surrounding them because, as he later notes, these functions are not naturally occuring objects, because humans have a basic difficulty understanding human things (especially, one might add, collectively, in the forum of political contestation), and because language is imprecise. The categories are not wholly indistinct, as hard-core legal realists seem to argue. Moreover, sharp, noncontroversial delineations are impossible, contra the polemical Republican line-drawers. And the authority for this sensible claim comes from an influential framer himself.

Add Darwininan understandings of the fluidity of the natural world, and you can complicate the picture even more, but that's a bigger story.

I'm definitely assigning Federalist #37 from now on.

"FREE SPEECH ZONES"

Seems to me that unwillingness to congregate in designated "free speech zones" during a Presidential visit is justified, but I'll agree that there's a difficult exercise in line-drawing here.

Modern Presidents make their terms in office a constant campaign aimed at pressuring reluctant legislators and shoring up support in key states for the next election (the first is what Samuel Kernell has called "going public"). It would seem that the law should be indifferent to the President's attempts to construct media events with as little public dissent as possible. I understand that the relevant laws are justified under the supposed need for public safety, public order, and the safety of the President, but they certainly have the effect of allowing the President to craft, completely, a set of media appearances that are virtually dissent-free. I'm not sure about the political aesthetics of such an arrangement, and I'm also not sure about the neutral-sounding arguments advanced in favor of the regulations (especially the instrumental nature of the regulations that really or at least also serve unstated and undefended and undefendable ends).

WEIRD STORY OF THE DAY

From The Australian: "Tourist Hit by Flying Sharks." The story is actually about a lawsuit related to a collapsing tank in the Sydney Aquarium six years ago.

RANDOM ONLINE ETHICS QUESTION [or not]

What are the ethics of publishing suspected IP addresses of people trying to hack into your computer? I've got this one fellow who has tried eighteen different ports over the past few days, and I'd like to put his or her address out there so at least google will pick it up for those who are also subject to hacks from that address. Is it a bad idea? Forget it. That was dumb.

MORE: As brmic noted in a friendly e-mail, if it's "that easy to notice," then someone probably just doesn't know what they're doing. Kind of like me.

QUORUM-BREAKING

Here are two great moments in the history of quorum-breaking. Tony and Thomas and I got into a discussion about the TX redistricting story over beer and oysters last night, and it occured to me that examples of quorum-breaking haven't been mentioned too often in the debate. I'm not sure that either of these examples help at all, but they're entertaining at least

1) From Edmund Morgan, The Birth of the Republic, Chicago: U Chicago Press, 1992 [1956], on constitutional ratification in Pennsylvania in September, 1787:

The assembly was to dissolve on September 29, and when by September 28 no official word had arrived from Congress [concerning the transmission of the Constitution to the states], it looked as though the members would have to depart without summoning a ratifying convention. At this point the Federalists, alarmed by the rising tide of opposition, decided to act and had George Clymer, who until September 17 had been serving in the meeting downstairs, present a motion calling for a ratifying convention on November 30. There was a large enough majority to carry the motion, but before it could come to a vote, the noon recess interrupted the debate and allowed nineteen anti-Federalists (mostly westerners) to make their escape. They needed only to stay away to prevent any further business, for without them there would be no quorum, and the next day would end the session.

But on the next day the long awaited news from New York at last arrived, and the Federalists, feeling a little more righteous now, sent the sergeant at arms to round up the missing members. Only two were necessary to complete a quorum, and the sergeant found them at their lodgings. When they refused to accompany him, a mob was gathered -- there were enough friends of the Constitution in Philadelphia to make a mob. While the two westerners trembled in helpless rage, the people carried them gleefully to the state house, deposited them in their seats, and barred the door against another escape. The necessary motions were then hilariously passed, with the date of the convention advanced to November 20. (150-151)

2) From James McPherson, Battle Cry of Freedom, New York: Oxford Univ. Press, 1988, on Republican attempts to counter a newly-elected Democratic legislature that condemned emancipation and sought peace with the South in 1863:

Indiana's iron-willed Oliver P. Morton simply persuaded Republican legislators to absent themselves, thereby forcing the legislature into adjournment for lack of a quorum. For the next two years Morton ran the state without a legislature -- and without the usual appropriations. He borrowed from banks and businesses, levied contributions on Republican counties, and drew $250,000 from a special service fund in the War Department -- all quite extralegal, if not illegal. But Republicans everywhere endorsed the principle of Morton's action: the Constitution must be stretched in order to save constitutional government from destruction by rebellion.(596)

EMAIL PROBLEMS

I'm having e-mail problems with my primary account. If you need to contact me, you can send me an e-mail at my spam-soaked hotmail address, which is simply my first name underscore my last name @ hotmail.com. Just put "Marstonalia" in the subject line and I should be able to spot it among the spam advertising low mortgage rates and pictures of various people nude.

GOOGLE NEWS IN FRENCH

Cool.

BEER

Beer with Thomas Nephew and Tony Andragna last night, here.

Tony's been posting up a storm on Bishop Robinson, and Thomas has just got all sorts of cool stuff up, as usual.

LAWRENCE SOLUM ON PRYOR

If you intend to read only one thing on the Pryor nomination, it should be this. Solum's post is the best attempt that I've seen to puzzle through the question of what Catholic doctrine requires of devout judges.

A topography of the question rather than a definitive answer -- which of course means that if you have any natural curiosity, you actually won't be able to read only one thing on Pryor, but that's life, after all.

THE PRESS AND THE CONSTITUTION

Howard Bashman has a good line on the media's failure to cover constitutional issues:

The sad truth is that many major news organizations wish that they could provide more coverage of constitutional issues, but they fear that they will have to "dumb it down" to such a degree to make it understandable to the average viewer that it's not worth the effort.

Howard thinks that the press does the public a disservice by underestimating their capacities, and I think that he's right. As the NYT's Linda Greenhouse has argued, however, the major news outlets have made a choice to cut back on full time "beat" reporters at the Supreme Court, and now can only cover constitutional issues that reach the Supremes in a superficial manner. One could go on about this: the length, structure, and argument of the Court's opinions are not easily digestible by non-initiates; the prevailing culture of expertise acts as a kind of gatekeeper to constitutional argumentation, keeping out the non-expert public. So covering judicial interpretations of the Constitution and translating them for public consumption has to be a full-time job, and there are few news companies that are willing to make that kind of investment.

That's a shame, but it's a choice that the media has made on a lot of fronts. Foreign correspondents are also less prevalent than they used to be. It's depressing, perhaps, but an apt metaphor: no permanent correspondent at the Court, no permanent correspondent in Istanbul or Cairo. The Constitution really is like a foreign country as far as the major media outlets are concerned!

JOSH CHERNISS IS RIGHT

Read this post. From what I've read of it, the recently passed Israeli law discriminating against Palestinians who marry Israelis seems pretty ugly. I haven't heard anyone defend the law, either, but I've also been out of the loop a little bit recently.

WAPO ON CONGRESSIONAL ATTACKS

WaPo editorializes on Hostettler's court-curbing appropriations amendment and Delay's "House Working Group on Judicial Accountability," here. The main point:

If the lower courts have mistakenly interpreted the Constitution, it is the Supreme Court's job to set them straight. But as long as their decisions stand, they are law and are entitled to respect from all Americans -- especially members of Congress. For Congress to use its purse power to defund decisions of which members don't approve sends a message of contempt for the judicial system.

WaPo also attacks Delay's Working Group as an "abuse" of Congressional power. For another attack on the Working Group, see the opinion piece titled "The Constitution Police" in the Dallas Forth-Worth Star Telegram.

Congress takes these kinds of symbolic jabs at the Court all the time; they serve to satisfy constituent complaints about the courts, whip up party faithful (with respect to long-standing party principles that should surprise no one by now), and signal to the courts that they are getting out of touch with public opinion. And, perhaps most interestingly, they often proceed from a belief that Congress can interpret the Constitution in ways that the courts have rejected. When defended as a theory of constitutional interpretation, this view goes by the name "departmentalism," and as far as I can see, even though it's not the dominant view in the legal culture, it still has some support as an historical and theoretical matter. I actually think that a departmentalist view should be defended, partly because I think that it helps to explain the actual behavior of Congress and the President in their conflicts with courts over constitutional issues. So I can't really support the shocked attacks on Congress by the WaPo editorial staff.

For my comment on Hostettler's moves, see here and here, and for my post on Delay's Working Group, see here. I do like to attack Delay, and my post on the Working Group is titled Now Who's 'Changing the Constitution'? This might seem like a contradiction: on the one hand, I'm criticizing Congressional Republicans for their interpretation of the House's role in judicial confirmations, and on the other hand I'm saying that Congress has the power to interpret the Constitution even when that interpretation is counter to judicially promulgated interpretations. But precisely if Congress is going to have the power to engage in interpretation, we should scrutinize what members of Congress do when they do in fact interpret. In the case of the Working Group, Republicans have asserted a role for the House that goes far beyond what a narrow reading of Article II seems to allow. I'm not concerned about that, but it does seem inconsistent with a professed textualism that has popped up on occasion in the debate over the filibuster, for example. I don't have a watertight case, to be sure, but there is an air of hypocrisy here.

Ultimately, I wish the House Republicans good luck. After all, "what goes around, comes around," and I certainly hope to be around in 30 years to attack the excesses of a federal judicial system entrenched with Republican appointees who will have gotten old and crotchety and who will have been overtaken by shifts in the political culture. If in 30 years, Representative Chelsea Clinton wants to set up a House Working Group on Judicial Conservatism, at least I'll know where to send my political contributions. In fact, why should House Dems wait for 30 years? They can probably find enough material right now. . .

HEWITT

Hugh Hewitt defends Republican accusations of Democratic anti-catholicism with this line which should warm the hearts of political liberals everywhere:

The fact of discrimination is not in the motive of the offender but the effect upon the offended.

Motives don't matter: effects do. Since he's writing about the courts, perhaps Hewitt would then like to apply his newfound understanding of the realities of discrimination to such areas as school desegregation. Anyone want to brave the long odds on that one?

Hewitt's invocation of a principle that he would almost certainly reject in other contexts is amusing, of course, but the main point of the Pryor nominations flap lies elsewhere, as Jim Joyner notes today. (Link to Hewitt's piece is from him as well.) Religion is newly fashionable in politics. It's a big political winner. It's not only Republicans who are arguing for a return to religion, of course; think of Joe Lieberman. Senate Republican shifting of the ground toward the question of "anti-catholic bigotry" is a good political move because it gets them talking about what they want to talk about, namely, Democratic opposition to Pryor's stance on abortion. It also allows them to link Pryor with Estrada and the Hispanic vote.

Fair enough. I still find it hard to swallow that Republicans are taking this line even though the Catholic Church has issued directives in other areas -- the death penalty and "social justice," especially -- where it's not clear that Pryor takes the Church seriously, and where other prominent Republican Catholics, like Scalia, have apparently chosen what they want to take from Church teaching and what they don't.

WISSENSCHAFTSKOMMUNIKATION

A blog on science, the media, and the public. Interesting.

WEB LINKS IN GERMAN MEDIA LAW

ZDF is having legal problems. Those of you with German might be interested in a dispute that the TV station ZDF is having because of this web page, which links to this page hosted by a drug store chain called Douglas. According to Prof. Christoph Degenhart, here, ZDF's link doesn't clarify which statements come from ZDF and which come from the drug store; apparently, German media law and ZDF's contract prevents such blending of the state-sponsored media voice with private, commercial views.

QUORUM BREAKING

Law.com has a good article on TX constitutional disputes over quorum-breaking. The article is marred by an odd phrase, however:

[Hinojosa] alleges that under redistricting maps approved by the Senate Jurisprudence Committee on July 23, the number of minority districts would decrease from 11 to 10, and four districts in which minorities have a strong voice would be eliminated.

Refuting that allegation at a July 30 news conference, Dewhurst said, "Nothing we do is going to affect in any way minority rights or any rights of any voters."

If that's all it takes to establish a "refutation," then human reason is in a worse state than anyone has hitherto dared to imagine.