Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

Judging by the Vietnam precedent, wherein the first significant movies like Deer Hunter (1978) and Apocalypse Now (1979) were released after the last American had left (1975), I'm guessing we have a while to wait. In contrast to A Yank in Viet-Nam (1964), To the Shores of Hell (1965) and of course The Green Berets (1968), however, the mediocre films that have been made in the first five years of the current conflict are not pro-war.

UPDATE: At least there are brave filmmakers, including Ben "Bad to the Bone" Stein, to demand tenure and funding for professors who consider themselves competent to declare that evolution didn't occur. The movie's blog refers to PZ Myers as "atheist blogger and fabulist," neglecting to mention that he is an actual biologist. Pity that the filmmakers took a hostile attitude toward Christian intellectual Dr. Francis Collins.

Geraldine Ferraro has taken up Ramesh Ponnuru's cry that one can't criticize Barack Obama without being called a racist. Like Ponnuru, she cheerfully ignores that one only opens oneself to the accusation by bringing up race at all. For example, McCain's attacks on Obama for being ignorant about Al Qaeda in Iraq have not been countered by saying they are racist. Obviously they're not, because McCain never mentioned race in this criticism, nor at any other time.

Perhaps the one good thing about Republicans' insistence that we should all be color-blind is that their candidates have thus far been quite good about not seeing race in this campaign. Both their praise and criticism of Obama have been for non-racial qualities: his charisma in the plus column, his inexperience and liberalism as minuses. If the Republican nominee can make cutting, sarcastic remarks about Obama without getting into race, I begin to wonder why Obama's opponents within the Democratic Party can't do the same. Obama's campaign is well aware that he needs to win a large percentage of white votes, so they don't bring up race much themselves, because it's not a winning issue for him with undecided white voters. However, if someone else makes any reference to race in a criticism of Obama, then the campaign's asking why race is being raised is logical, because the criticizer did it first.

Thus far, the only significant commentator who I have heard make a wrongful claim of racism has been Orlando Patterson, of whom Ferraro also complained. In a NYTimes op-ed, he questioned why there weren't any black kids in Clinton's 3 AM ad and said, "In my reading, the ad, in the insidious language of symbolism, says that Mr. Obama is himself the danger, the outsider within." While Patterson may be right that the Clinton campaign along with conservatives is trying to portray Obama as an outsider to America, especially white America -- supported only by blacks, unpatriotic, possibly Muslim, etc. -- this specific ad was at most an unconscious attempt to do so. As we've seen over and over with Republicans' amusement that Democrats would run two, TWO minority candidates, many whites' default idea of America is that it's white, and of power is that it's male. Presidential candidates' race and sex only become an "issue" if they're not white males. Even assuming Patterson is correct that none of the children are black (they're so dimly lighted, I couldn't tell), it probably just didn't occur to anyone in the Clinton campaign that it would be nice to show a black kid to communicate that the danger against which Clinton will protect us is a danger to all Americans, regardless of race. It was not an intentional effort to exclude African Americans.

Michael Gerson in today's Washington Post engages in a thought experiment in order to conclude that Obama cannot stand by his campaign pledges without becoming a foreign policy failure. Gerson declares that Obama will make an "inaugural pledge to 'pay any price, bear any burden, fly any distance to meet with our enemies,'" and that Obama has "made Iranian talks 'without precondition' his major foreign policy goal." Gerson evidently didn't trouble himself to listen to Obama's speeches or even skim the Foreign Policy section of his website. At the top of that page is a quote from the speech that David Brooks recently called the defining moment of Obama's candidacy:

Echoing the theme of a 2006 lawsuit against Google (which the plaintiff rapidly moved to dismiss), Sen. McCain seems to conflate two distinct problems in the threat posed to human dignity by internet pornography.

... However, there is a darker side to the Internet. Along with the access and anonymity of the Internet have come those who would use it to peddle child pornography and other sexually explicit material and to prey upon children.
John McCain has been a leader in pushing legislation through Congress that requires all schools and libraries receiving federal subsidies for Internet connectivity to utilize technology to restrict access to sexually explicit material by children using such computers. While the first line of defense for children will always be strong and involved parents, when they send their child to school or drop their child off at the library, parents have the right to feel safe that someone is going to be looking out for their children.

I encountered Erwin Chemerinsky in his professorial (as opposed to author/ litigator/ talking head) capacity for the first time in his videotaped BarBri lecture on constitutional law, one of a few subjects in which none of the lecture felt like it was introducing brand new material, and the first subject in which I could remember the names of the relevant cases as I went through the outline. The lecture helpfully tipped us off to how to apply con law to multiple choice questions; for example, Chemerinsky noted that when the question asks who is the "best plaintiff" out of a group in which no one seems to have standing for certain, the answer is the plaintiff who suffered personal economic loss. Because it's probably the area of bar-tested law that I know best, however, some of the summaries puzzled me.

For example, with regard to third party standing Chemerinsky said that such standing is allowed if there is a close relationship between the plaintiff and the injured third party. His example was the doctor-patient relationship that permitted abortionists to assert their patients' rights to challenge restrictions on abortion. Hence the line of abortion cases that followed Roe mostly have plaintiffs like Planned Parenthood, Dr. Franklin, Akron Center for Reproductive Health, Dr. Simopoulos, American College of Obstetricians and Gynecologists, Dr. Carhart.

But these abortion providers were themselves at risk of criminal prosecution for violating the abortion restrictions, which violations could entail losing one's medical license and serving prison time, as Dr. Simopoulos did. So it was actually the physician plaintiff's liberty or property that was at risk from enforcement, while it was the third party's -- the aborting woman's -- right that was at issue. Similarly, it was the beer vendor in Craig v. Boren whom the Court found to suffer "injury in fact," because she would be punished by the state if she sold to men under 21.

Thus a "close relationship" between the parties is not sufficient. There must be a close relationship between the right sought to be vindicated, and the inability to exercise the right if someone (physician, beer-seller, et al.) will be legally sanctioned for violating the statute. If we flipped the proposals of people like Fred Thompson and punished the abortion-seeker rather than the abortionist, the latter would cease to have standing to bring suit, because he no longer would face any penalties under the law.

From Freeman Dyson's excellent NYRB review of Von Braun: Dreamer of Space, Engineer of War, by Michael J. Neufeld:

The author of this book condemns von Braun for his collaboration with the SS, and condemns the United States government for covering up the evidence of his collaboration. Here I beg to differ with the author. War is an inherently immoral activity. Even the best of wars involves crimes and atrocities, and every citizen who takes part in war is to some extent collaborating with criminals. I should here declare my own interest in this debate. In my work for the RAF Bomber Command, I was collaborating with people who planned the destruction of Dresden in February 1945, a notorious calamity in which many thousands of innocent civilians were burned to death. If we had lost the war, those responsible might have been condemned as war criminals, and I might have been found guilty of collaborating with them.

After this declaration of personal involvement, let me state my conclusion. In my opinion, the moral imperative at the end of every war is reconciliation. Without reconciliation there can be no real peace. Reconciliation means amnesty. It is allowable to execute the worst war criminals, with or without a legal trial, provided that this is done quickly, while the passions of war are still raging. After the executions are done, there should be no more hunting for criminals and collaborators. In order to make a lasting peace, we must learn to live with our enemies and forgive their crimes. Amnesty means that we are all equal before the law. Amnesty is not easy and not fair, but it is a moral necessity, because the alternative is an unending cycle of hatred and revenge. South Africa has set us a good example, showing how it can be done.

In the end, I admire von Braun for using his God-given talents to achieve his visions, even when this required him to make a pact with the devil. He bent Hitler and Himmler to his purposes more than they bent him to theirs. And I admire the United States Army for giving him a second chance to pursue his dreams. In the end, the amnesty given to him by the United States did far more than a strict accounting of his misdeeds could have done to redeem his soul and to fulfill his destiny.

1. Writing in the New York Times (not National Review, so never mind those who claim to have read it in their subscription) in 1986, he composed a kind of dialogue between School A, the protectors of civil liberties and privacy, and School B, the protectors of public health (he being in the latter category):

But if the time has not come, and may never come, for public identification, what then of private identification?
Everyone detected with AIDS should be tatooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.
You have got to be kidding! That's exactly what we suspected all along! You are calling for the return of the Scarlet Letter, but only for homosexuals!
Answer: The Scarlet Letter was designed to stimulate public obloquy. The AIDS tattoo is designed for private protection. And the whole point of this is that we are not talking about a kidding matter. Our society is generally threatened, and in order to fight AIDS, we need the civil equivalent of universal military training.

Happy birthday to Jeremy Bentham, and welcome to the blawgosphere to Tom Bruce and the rest of the Cornell Legal Information Institute.

With less than three weeks left before the February bar exam, I'm going offline until the 28th. Then I'll be posting until March 15 -- the fourth anniversary of De Novo -- when I will stop blogging. My law student status technically ceases next Thursday when I graduate, and the bar exam is the last vestige of it. In the interim, I hope to hear from current and future law students who have an interest in blogging and were looking for a good place to do it. I would love to see De Novo continue as an active student blawg.

UPDATE: Why I also will be ceasing to comment on other people's blogs, edit Wikipedia, or otherwise engage in online writing except as encouraged by a salaried position.

If I used to comment regularly at your blog and you actually miss having me rip on your other commenters, please e-mail.

In order for contributions to it to be tax-deductible, no 501(c)(3) entity can allow a substantial part of its activities to be lobbying, i.e. attempting to influence legislation. I'm not really sure how this works out for, say, the Virginia chapter of the ACLU, which seems to spend a lot of time on legislation judging by the emails it sends me. Much more clear-cut than the "substantial" test applied for lobbying is the absolute prohibition on 501(c)(3)s from "directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office." It is a fairly easy rule to follow, like the pre-FEC v. WRTL version of the 60-day rule against ads just before an election: you can talk about the issues, just don't mention candidates' names.

The Voter's Guide for Serious Catholics sets a gold standard for religious voter guides. It lays out clearly what the obligations of a Catholic voter are, the Church's stance on various issues and why a candidate may permissibly support invading Iraq but not legalize abortion. (In brief, the ultimate goals of "peace" or "solidarity with the poor" may plausibly be believed achievable through different means, including preemptive war or having aid to the poor go through the private sector rather than government; the ultimate goals of respecting human life or maintaining the moral institution of marriage is not plausibly achievable through abortion, euthanasia, embryonic stem cell research, cloning or same-sex marriage.)

The Catholic Guide also is not specific to a single election. It mentions neither candidates nor parties, only the "non-negotiable" values and general principles of the Catholic faith. If anyone tried to prevent churches from handing out this guide, I'd be happy to work pro bono for the churches to ensure that they retained their 501(c)(3) status. This is exactly what the role of a church in politics ought to be: clarifying for its members what their shared moral commitments are, and urging them to be active in putting those commitments into the polity. I disagree with the Catholic church on every single "non-negotiable" issue except human cloning (I favor the legality of abortion, euthanasia, embryonic stem cell research and same-sex marriage), but they are behaving just as they should in the political sphere. The prefatory statement on the guide, "Nothing in this voter's guide should be construed as an endorsement of any particular candidate or political party," is extraneous.

A favorite grudge against Sen. John McCain among conservative leaders and lawyers is that he sponsored campaign finance reform legislation that they deem to be a violation of the core First Amendment right to political speech. Particularly troubling for them was the non-lawyer McCain's supposedly urging his Congressional colleagues who had reservations about the law's constitutionality to vote for it and let the Supreme Court decide which provisions passed constitutional muster.

Due to the unpopularity of judicial power on the right, this is viewed as not only a bad thing to have said about the particular law, but an inherently dangerous view for any member of the other two branches of government to hold. While the courts have judicial review over the constitutionality of legislation and the executive's interpretation of its statutory and constitutional powers, Congress and the President nonetheless swear to uphold the Constitution* and are obliged to act within the bounds of what they understand the Constitution to mean. Simply abdicating all constitutional understanding to the courts is a failure of duty and is particularly alarming to conservatives who fear kritarchy.

McCain's attitude of legislate it all and let SCOTUS sort 'em out stands in particular contrast to the current Republican president. Although Bush signed McCain-Feingold stating his own doubts of its constitutionality, he did not issue a signing statement of the sort he has with legislation that he deems to encroach upon his unitary executive powers. Evidently Congress's abrogating the freedom of speech is something that the courts can be left to figure out, but Congress's mandating that no funds be spent for a "permanent" U.S. military presence in Iraq is something that Bush must declare unconstitutional immediately. And no expecting "that the courts will resolve these legitimate legal questions as appropriate under the law" when it comes to Congress's prohibiting the administration from establishing permanent bases in Iraq or controlling Iraqi oil resources; establishing a congressional commission to review military contracts in Iraq; protecting contractor whistle-blowers; and putting a 45-day deadline on U.S. intelligence agencies to respond to information requests from Congress' committees on intelligence and armed services. Nope, then it's just "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

I'm trying to think of a more inopportune time since the Gujarat riots to publish an opinion piece about how meek and mild Hindus are. I cannot think of a more bizarre moment to make this statement: "Keeping a low profile is a manifestation of the non-interventionist mindset that has enabled Hinduism to survive some 8,000 years in spite of assaults like the Muslim invasions, the Goa inquisition, and more recent encroachments like the Gospel Fellowship Trust India’s campaign to aggressively convert Dalits and impoverished tribesmen to Christianity."

I guess that either the Columbia Spectator's opinion editors don't keep up with South Asian news, or they're deliberately trying to stir up controversy. An op-ed that makes nasty remarks about converting Dalits (better known in the West as "untouchables") and tribals to Christianity, and implicitly comparing it to invasions and inquisitions, is one way to do it.

In a list of periods of conflict for determining whether one receives a property tax exemption reserved for veterans, the City of New York gives the following:

- World War I: April 6, 1917 - November 11, 1918
- World War II: December 7, 1941 - December 31,1946
- Korean Conflict: June 27, 1950 - January 31,1955
- Vietnam War: February 28,1961 - May 7, 1975
- Persian Gulf War: August 2, 1990 - Present

Does anyone know if this is a standard list from the federal government about the dates for active duty?

Although I am sure Michael Stokes Paulsen is quite able in arguing the case for abortion prohibition in a more academic format, his Balkinization post about the Roe Holocaust* was disappointingly tiresome. Legal scholars who make such arguments seem to be either ignorant of or indifferent to the fact that Anglo-American law never treated abortion as a species of killing. Before Roe, as I have noted, abortion was classed in state statutes as a crime against morals and decency, along with fornication, adultery, prostitution, sodomy and bestiality. It was not put among the homicide crimes, and always was prosecuted and penalized differently than murder. This indicates a historic framing of abortion as a morally impermissible misuse of one's own body, rather than as a crime against the person of another.

Because contraception also was once among those morals crimes, I can see why the privacy reasoning of Griswold (contraception) seemed logical to extend to Roe (abortion), and has been extended to Lawrence (sodomy) as well. And this reasoning emphasizes a point that Paulsen and other abortion prohibitionists' rhetoric ignores: that abortion takes place in a woman's body. Instead, Paulsen says,

Toward the end of her Ms. review of Susan K. Cahn's Sexual Reckonings: Southern Girls in a Troubling Age, France Winddance Twine, a professor of sociology and women's studies at the University of California, Santa Barbara, says, "Meanwhile, scholars estimate that the number of girls in juvenile detention for crimes of poverty and sex nearly doubled in the 1990s."

What exactly are "crimes of poverty and sex"? I can guess that a crime of poverty might be one like panhandling, public indecency for urinating in public in the absence of a home in which to do same, perhaps even shoplifting food and basic clothing or items to resell -- crimes that may seem necessary for someone who is very poor.* But what is a "crime of sex"? Are prosecutors actually resurrecting fornication or adultery statutes (they can't use the sodomy ones) in order to put sexually active teenage girls in juvenile detention? Prof. Twine uses the phrase so casually that I thought perhaps it was in common parlance, so I tried googling it.

"Crimes of poverty" is a frequently-used idea, and generally encapsulates what I expected: "arrests and citations for the act of being homeless or very low-income in America, i.e., 'camping on public property,' blocking the sidewalk, recycling, loitering (which can include sitting while homeless), and in my family's case, sleeping in a vehicle or driving with expired plates (Driving While Poor)." Also, neglect of children for going to work while being unable to afford childcare for them, and the merged crime of sex and poverty: prostitution.

But why are juveniles being arrested for these crimes of poverty and sex? At least under the age of 16 in many states, a minor's prostitution should entail no guilt on the part of the child, only a statutory rape charge against her clients. A homeless juvenile should be going into the foster care system, not juvenile detention. I can understand that due to shortages of foster homes, some minors end up being held in juvenile detention just to ensure they have food and shelter, but those should be distinguished from the kids in juvie who if they were older would be in jail.

* "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread." -- Anatole France

I am trying to figure out what Sarah Lyall meant in the first sentence of a Times article, which says, "It was a lofty idea: formulate a British 'statement of values' defining what it means to be British, much the way a document like the Declaration of Independence sets out the ideals that help explain what it means to be American." The Declaration of Independence does not "set out ideals," but rather sets out a list of grievances against the British king.

It is, as one might expect from the name, a declaration of independence from Britain. It famously states, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," only as the first step of an argument that because the British government has become destructive of these Rights, the colonists are justified in throwing off such government. Further contrasting with Lyall's notion that the Declaration explains American-ness are Jefferson's repeated concluding references to "Free and Independent States."

One might take the list of grievances as a kind of Don'ts For Government, and King George's tyrannies appear as a reverse blueprint for the Constitution and Bill of Rights:
Where he refused his Assent to Laws, the president's veto can be overruled by a two-thirds legislative majority.
Where he made Judges dependent on his Will alone for the tenure of their offices, and the amount and enjoyment of their salaries, Article III judges have lifetime tenure, holding "their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."
Where he quartered large bodies of armed troops among the colonists in peacetime, the Third Amendment prohibits same.
Where he deprived the colonists in many cases of the benefit of Trial by Jury, the Sixth Amendment guarantees same.
Etc., etc. Only in the negative can much of the Declaration be taken as ideal; that is, where the king's behavior was bad, the colonists implicitly promised to do better. The act of declaring independence, the lawyerly mindset that laid out charges against the king -- these are part of what it means to be American. As Edmund Burke remarked on the character of Americans, a year before before any Declaration,

In Phil Carter's and Brad Flora's "complete guide to the Army's recruiting incentives," published in Slate last November, they state, "Among 2004 recruits, 92.5 percent had a high-school diploma, while the same could be said for 87 percent in 2005, 81.2 percent in 2006, and 79.1 percent in 2007."

However, Fred Kaplan yesterday said, "The latest statistics—compiled by the Defense Department. and obtained through the Freedom of Information Act by the Boston-based National Priorities Project—are grim. They show that the percentage of new Army recruits with high-school diplomas has plunged from 94 percent in 2003 to 83.5 percent in 2005 to 70.7 percent in 2007. (The Pentagon's longstanding goal is 90 percent.)"

Why the inconsistency for the 2005 figures? The discrepancy for 2007 might be explained by really heavy recruitment of dropouts during November and December 2007, but there's no obvious reason why two Slate articles -- the second even linking the first -- should have different statistics for 2005.

What actually would interest me, though, is how many high school dropouts do well on the military's aptitude test. I remember taking that in high school, and although I don't remember my score and I still got recruitment calls and mail from the Navy, I'm pretty sure I did poorly on the practical, non-academic aspects: Electronics Information, Auto Information, Shop Information, Mechanical Comprehension and Assembling Objects. I'm all for having people in the military who can read, write, do math and know that the earth is round, but for many crucial tasks, the half of the test that I probably flunked is a better predictor of ability. Some people are lousy in the classroom and end up dropping out of high school because they find it boring and frustrating to sit through mediocre lectures on The Taming of the Shrew. That doesn't mean they're "dumb," at least not in the way that counts for getting certain jobs done.

But if the military is recruiting people with neither academic nor practical abilities -- people who score poorly on both parts of the ASVAB -- then we really are in trouble.

This is an overgrown response to commenter Bob, one of several people defending the Japanese internment in the comments to this post. In the following, I will endeavor to explain

- the difference between a "military area" and a "combat zone";
- the seemingly mysterious ability of Japanese people to evade prosecution for spying even while whites are being convicted;
- why putting adults in an area that they are shot for leaving without permission is usually deemed a loss of liberty and not a mere "relocation";
- U.S. immigration and naturalization law;
- racism against Asians as shown in other laws;
- and why someone who immigrated to the U.S. after 1954 couldn't have become a naturalized citizen by 1960 no matter how much he wanted to be.