1:08 PM :: Stephen (contact)

Thesis Revision Quote of the Day: From the great legal historian Frederic William Maitland:

Besides, it is common knowledge that those who perjure themselves are often struck dead, or reduced to the stature of dwarfs, or find that they cannot remove their hands from the relics they have profaned.

Maitland, Outlines of English Legal History, 560-1600, Social England (H.D. Traill ed., London, Cassel & Co. 1893), reprinted in 2 Collected Papers of Frederic William Maitland 417, 447 (H. A. L. Fisher ed., 1911).

 

5:26 AM :: Stephen (contact)

Scandinavian Museum Watch: Another artwork, this time in Norway, has outraged the local Israeli ambassador (link via Volokh). Entitled "Anti-Semite in the Name of God," the work depicts the words "USA" and "ISRAEL" crossed at the "S," which has been changed into a swastika. It also depicts the Norwegian flag and a lot of non-descript red geometric shapes. In my expert artistic opinion, it's a piece of crap.

This, of course, follows on the controversy surrounding "Snow White and the Madness of Truth," a work displayed in the Stockholm Historical Museum in January. It included a red blood-like pool in which floated a small boat, bearing the smiling portrait of female suicide bomber Hanadi Jaradat. Jaradat had murdered 21 people in a Haifa restaurant, and the installation was damaged by Ambassador Zev Mazel when he visited the museum in January.

Both of these incidents made me remember my own trip to Finland and Sweden last April, when I visited the Stockholm Historical Museum. At the time, the museum's "Prehistory" exhibit -- possibly the same room that later featured Hanadi Jaradat -- included an installation on "The Culture of War," which consisted of the following items in a glass case:

• a Viking helmet
  
• a rusted sword
  
• many WWI-era shell casings
  
• the famous picture of a girl fleeing from napalm in Vietnam
  
• statistics on the U.S. FY2002 and FY2003 military budgets

The accompanying text, which a friend of mine paraphrased from the Swedish, surveyed the global movement away from the "culture of war" and concluded: "Even after the fall of the Soviet Union, the culture of war continues in the United States."

Let's leave aside for the moment the substance of the artists' politics (though one might well ask whether, if the U.S. rejected the "culture of war" as strenuously as Sweden, it would still offer security guarantees in Europe and East Asia). As with the often-fatuous collections of poems against the war, it's useless to contest "arguments" in poetry that would be mere polemic if set in prose.

What I find more notable are the demands made by such artists on our political attention, their claims to be prophets by virtue of skill with paint. (Those who think that artistic talent is always coupled with progressive politics should watch the Klan-idolizing Birth of a Nation, or the celebrated Triumph of the Will.) Some art is powerful enough to speak to our political sensibilities, and to persuade even those who unsympathetic to the cause; some art is not. The fear and pain of the girl in Vietnam can make even the most battle-hardened heart recoil at war -- but the Stockholm installation as a whole fails this test. Its message was only accessible if one already believed that militaries were, on the whole, a bad thing, just as the Norwegian painting cannot move those who find the U.S.-Nazi Germany comparison inapposite. Pieces like these are more like poorly-written leaflets than works of art; they possess little more artistic value than the chalk-graffiti scrawl of "ONE SOLUTION: REVOLUTION" on the bridge near my house. (Or, for that matter, the many chalk outlines of dead bodies I saw on the Stockholm streets labeled "USA WAS HERE.") In other words, Guernica they ain't.

Those who make their art subservient to a cartoonish politics will produce cartoonish art. And poets and artists, whatever their talents, are no more likely to possess great political wisdom than the rest of us. As W.B. Yeats once wrote,

I THINK it better that in times like these
A poet keep his mouth shut, for in truth
We have no gift to set a statesman right;
He has had enough of meddling who can please
A young girl in the indolence of her youth,
Or an old man upon a winter’s night.

 

12:08 PM :: Stephen (contact)

More Pickups: John Kerry's 1970 Harvard Crimson interview (see below) is picking up steam. After its appearance on the Drudge Report, it's now been referenced in two columns by Howard Kurtz in the Washington Post, and the Bush campaign may use it in ads. According to Kurtz's latest,

President Bush's reelection campaign has decided to focus its coming advertising barrage not only on John F. Kerry's record as a senator but also on his days as an antiwar activist, a House candidate and Massachusetts's lieutenant governor.

...

A 1970 Harvard Crimson interview in which Kerry said that U.S. troops should be deployed "only at the directive of the United Nations" will be fair game, the officials said. If they run ads about that period, they will probably focus on Kerry's high-profile opposition to the Vietnam War and comments about U.S. atrocities that could neutralize his record as a decorated veteran.

I doubt that the interview will have much traction in the general election; keeping Vietnam on the front burner will only give more attention to Kerry's record as a decorated war veteran. But regardless, big kudos to The Crimson for digging this up!

 

11:49 AM :: Stephen (contact)

Fromage! The era of freedom fries is hopefully long over by now. But would John Kerry really want a story on support from expatriate Democrats to bear the headline, "Kerry, the Big Cheese in France"?

 

12:41 PM :: Stephen (contact)

On the Shoulders of Giants: I've received a good deal of help on the question of standing to challenge San Francisco's gay marriages (discussed below). Former roommate and blogger extraordinaire Steve Wu e-mails:

Coincidentally a couple of us were talking about this today. Our conclusion is that (1) to the extent that they have standing, they probably have standing under state law, not federal law; (2) if state standing is more capacious than federal law, then it is unlikely that they will be able to remove or appeal to federal court due to standing problems.

Steve subsequently pointed out that state law is more flexible in this case, as Jack Ayer writes:

Although California does have a standing requirement/real party in interest, there is an exception for questions of "public right" and "public duties" that allow a plaintiff seeking a writ of mandamus to sue as long as the plaintiff shows s/he "is interested as a citizen in having the laws executed and the duty in question enforced." Green v. Obledo, 29 Cal.3d 126, 144 (1981). Taxpayers can sue to prevent a public official from waste or illegal expenditure of public funds. The plaintiff must be a resident of the state, city, or county involved, and assessed for and liable to pay taxes (or have paid tax) to the public entity within the past year. California Code of Civil Procedure sec. 526a See generally Brown & Weil, California Practice Guide: Civil Procedure Before Trial para. 2:66-2:70 (The Rutter Group 2003).

And James Grimmelmann (who also taught my CS 121 section!) emails to note that the briefs in the case rely on Section 526a in their discussion of standing.

The question remains, however, how these issues would be resolved in a state with stronger standing requirements than California. As Steve writes, similar issues could arise in the context of the proposed Federal Marriage Amendment, which reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

There's been a good deal of controversy whether this amendment would block civil unions, but it's not even clear what would happen with full-fledged gay marriages. If the legislature of a state like Massachusetts chose to endorse gay marriages, and if the Cambridge city clerks begain issuing licenses for them, who could sue to make them stop? The licenses might be held to be void when challenged (in cases of custody, inheritance, etc.), and businesses might be able to avoid paying marital benefits to gay couples, but the practice itself could presumably continue. And I doubt that any amendment would include a "qui tam" clause that allows individuals to sue on the government's behalf, a practice that is well-known for letting whistleblowers sue those defrauding the federal government (though not, unfortunately, in cases of tax fraud).

(In response to this suggestion, Steve notes that with an enforcement clause in the amendment--e.g., "Congress shall have power to enforce this article by appropriate legislation"--Congress could create its own qui tam provision. Such a provision would then bypass any Article III requirements of standing under Vermont Agency of Natural Resources v. U.S. ex rel. Stevens.)

It's interesting to consider what would happen, though, if the FMA passed without such enforcing legislation and a state legislature did choose to disobey its terms. As in San Francisco, there would be a large number of couples who had been "married" and who might be socially recognized in their communities as having this status. They couldn't use it as an argument in court, to claim visitation rights in hospitals or custody of adoptive children, but there would be no legal process for voiding the "marriage" entirely. In some sense, that's why Newsom's move is such a brilliant strategy by those favoring gay marriages: it moves the debate away from abstract principles and refocuses it on individual couples--those whose commitments to each other must be broken in order for the law to be upheld.

 

12:40 PM :: Stephen (contact)

Quote of the Day: Michael Totten explores the views of ex-Laborite and MP George Galloway:

I can't help but think some people admire totalitarian regimes not because they want to live in one, but because they want to be in charge of one.

(Link thanks to Instapundit.)

 

12:24 PM :: Stephen (contact)

Demography is Destiny? ALDaily, Tyler Cowen, and Dan Drezner have all picked up a fascinating essay by Nicholas Eberstadt on "Power and Population in Asia." Quick summary: the "greying of Europe" will only be copied in Asia; China and Japan will see their populations age dramatically in the early- to mid-21st century. The changes will be especially hard on China, which is poorer, lacks an effective pension program, and has an economy far more reliant on physical labor. Not only that, but China's skewed sex ratio (caused in part by sex-selective abortion and male-favoring exceptions to the one-child policy) could mean that in some regions there will be 30 percent more men than women, which (barring a substantial increase in fertility) will only accelerate the demographic decline.

Of course, all of these projections are based on current trends. But Eberstadt's projections are unlikely to be far off the mark; because of low death rates, most of the people who will be alive in East and South Asia in 2025 have already been born. And in fact, the only major country expected to retain a larger, younger, and potentially more productive workforce may turn out to be the United States of America. Well worth a read.

 

7:45 AM :: Stephen (contact)

Wedding Suit: A friend recently sent me an article on San Francisco's gay marriage policy, which has been marrying people like crazy while the lawsuit wends its way through the courts. Regardless of one's views on gay marriage, it's impossible not to be impressed by the stories of couples who have stayed committed to each other for 20, 30, 40 years -- commitments that many straight couples have been unable to match, even with the protections of marriage and the social recognition of their union.

What puzzles me, though, is the lawsuit seeking an injunction against the city. Who would have standing to contest the city's decision? Even if it were an open-and-shut case that California law doesn't recognize gay marriage--the voters having recently adopted a proposition to that effect--wouldn't that just mean that the marriages themselves would be void if they were ever challenged? Who could reasonably claim to have been injured by the city's refusal to enforce the law?

According to the complaint (PDF), if the marriages are not stopped, "Plaintiffs will lose their fundamental right to have their vote in favor of Proposition 22 afforded proper treatment." But do individuals really have a legal claim to the government's treating their votes properly? If California adopted a ballot proposition concerning littering in state parks, and a park ranger deliberately ignored evidence of someone littering, could any California resident sue on the grounds that his or her vote was not being "afforded proper treatment"? (Alternatively, assume the ranger was the one doing the littering, and was thereby personally violating the law; could there be an individual cause of action to make him or her stop?)

The complaint also notes that public funds will be expended without authority, which might be a better claim. But aren't the couples themselves paying all expenses?

The assessor-recorder, Mabel S. Teng, said her office, responsible for issuing the $83 licenses, performed 825 weddings on Monday, bringing the number of same-sex marriages to about 2,425 since the city opened the gates to gay couples on Thursday.

Even if no additional public funds are being used, it might be possible to argue that the public is injured by demands on public officials' time, as they conduct activities outside the scope of their office. (Certainly a straight couple would have a hard time getting in the door for a marriage license this weekend.) But I don't know enough about civil procedure to tell whether this really rises to a justiciable claim -- or, if it isn't one, how citizens could ever contest the "harmless" illegal actions of their public officials.

(On a more cynical note, by my calculations, the 2,425 marriages have brought in $201,275 in added revenue in just four days. And I doubt the city would offer a refund if the marriages are declared illegal. So one can only imagine the closed-room discussions in Mayor Newsom's office last week: "Well, folks, I know we're facing a big budget shortfall, but Mabel here had an idea...")

 

12:49 PM :: Stephen (contact)

Score One for the Digital Archives: While most major networks (like CNN) have been focused on a new Harvard student publication, they've missed another story from Wednesday's Crimson -- an old interview with a 26-year-old John Kerry. The original article, from Feb. 18, 1970, lays out the positions of the young Congressional candidate:

[Kerry] supports a volunteer Army, "if and only if we can create the controls for it. You're going to have to prepare for the possibility of a national emergency, however." Kerry said that the United Nations should have control over most of our foreign military operations. "I'm an internationalist. I'd like to see our troops dispersed through the world only at the directive of the United Nations."

On other issues, Kerry wants "to almost eliminate CIA activity. The CIA is fighting its own war in Laos and nobody seems to care." He also favors a negative income tax and keeping unemployment at a very low level, "even if it means selective economic controls."

The U.N. quote is most interesting from a political point of view; the Crimson quoted a GOP campaign spokesperson as stating that Bush "will never cede the best interests of the national security of the American people to anybody but the president of the United States, along with the Congress." The story also prompted a reaction from Kerry spokesperson David Wade:

"The G.O.P. must be terrified of John Kerry if they're obsessing over statements of a 26-year-old Vietnam veteran angry at the Nixon White House's indifference to soldiers dying in the frontlines thousands of miles away."

"Through 20 years in the United States Senate, John Kerry has stood up for the strongest military on Earth and a muscular internationalism that makes America safe while winning the cooperation of alllies," Wade added.

(I have to admire the political skill here -- Wade managed to get "Vietnam veteran" and the "White House's indifference to soldiers dying the frontlines" into the same sentence. And how many focus groups do you think have tested the phrase "muscular internationalism" by now?)

The Kerry campaign is perfectly right that the comments are irrelevant to his current run. Although putting U.S. troops under complete U.N. control would have been a dumb idea even at the time (the USSR gets a veto on our troops in West Berlin?), Kerry had just returned from witnessing the atrocities of Vietnam, and if he had a negative impression of U.S. military adventures, I'm inclined to give the guy a break.

But the statements are interesting to read nonetheless, and the decision by The Crimson to make over 100 years of archives available online -- though originally controversial -- keeps looking better and better. Besides, without the archives, we'd never have found this 1971 story about a rally in which Kerry appeared alongside the Democratic presidential candidates. Co-written by current Washington Post columnist E.J. Dionne, it contains the following unusual remark, which one hopes both parties would soon accept:

In a colloquy with a student at the press conference, Sen. Edward M. Kennedy '54 (D-Mass.) said he believed change could be brought about by governmental action...

On another subject, Kennedy said he hoped that President Nixon would appoint Supreme Court justices committed to "progressive, liberal thought."

He added, however, that he doubted the Senate would reject an appointee on the basis of his philosophy alone. "Many of the great giants wouldn't have been approved if that had been the criterion," he said[.]

UPDATE: Mickey Kaus notes the following passage from the 1970 story:

At Yale, Kerry was chairman of the Political Union and later, as Commencement speaker, urged the United States to withdraw from Vietnam and to scale down foreign military operations. And this was way back in 1966.

When he approached his draft board for permission to study for a year in Paris, the draft board refused and Kerry decided to enlist in the Navy.

Sounds pretty damning -- until you read the rest of the paragraph:

The Navy assigned him to the USS Gridley which between December 1966 and July 1968 saw four months of action off the Vietnam coast. In August through November, 1968, Kerry was trained to be the skipper of a patrol boat for Vietnamese rivers. For the next five months, until April of 1969, Kerry was the commanding Lieutenant of a patrol boat in the Mekong Delta. He was wounded slightly on three different occasions and received a Silver Star for bravery. His patrol boat took part in Operation Sealords, mostly scouting out Viet Cong villages and transporting South Vietnamese marines to various destinations up and down narrow rivers covered with heavy foliage on either side. One time Kerry was ordered to destroy a Viet Cong village but disobeyed orders and suggested that the Navy Command simply send in a Psychological Warfare team to be friend the villagers with food, hospital supplies, and better educational facilities.

Pretty hard to disparage, if you ask me.

 

12:02 PM :: Stephen (contact)

You're free! You're free! Sorry for the long delay in posting -- there's a mountain of work and unanswered emails ahead. But I couldn't help noticing this story, which could have come straight from the mind of Gary Larson (or just the Associated Press):

Overturned Van Spills 700 Live Rodents
Fri Feb 6, 3:49 PM ET

PEARISBURG, Va. - A cargo van filled with cages carrying more than 700 gerbils, rats, mice and other rodents overturned Thursday, sending the animals scurrying onto a highway and sparking a bizarre large-scale rescue of the small animals.

The accident occurred when the van, driven by Thomas Marcinko of Zanesville, Ohio, hit an icy patch of U.S. 460 and ran off the left side of the road, hit a guardrail, overturned and slid onto the shoulder.

The animals, being transported in plastic cages, made a break for freedom.

"We caught probably 20 or 25 outside the vehicle. We caught another 25 inside the vehicle," said Bill Davis, one of eight members of the Giles County Lifesaving Squad who responded to a call for help. "Then we realized they were everywhere."

Marcinko walked away from the accident, and once he was checked out, the search for the critters was on.

"As cold as it is outside, we couldn't just leave them," Davis said. "I just started throwing them in back of the ambulance."

This reminds me of a classic Far Side cartoon, in which a cat gazes longingly out the window at a truck accident involving "Al's Rodents" and "Ernie's Small, Flightless Birds." Good to know that the crack rodent-catchers of the Giles County Lifesaving Squad were on the job.