This just in

I have no time for 9/11 conspiracy theories*, and generally for 9/11 conspiracy theorists. If I sincerely believed what they purport to (shortly, the U.S. government staged the attack), I'm fairly sure I would flee the country, and find it surprising that there are so many of them who haven't done so.

*This is literally false, since I've read a number of them.




Bob Novak, Constitutional scholar

Part two of the very intermittent series: columnists say false things about the Constitution. Via Amy Sullivan, Robert Novak thinks that:
The U.S. Constitution prohibits a religious test for public office, but that is precisely what is being posed now. Prominent, respectable Evangelical Christians have told me, not for quotation, that millions of their co-religionists cannot and will not vote for Romney for president solely because he is a member of the Church of Jesus Christ of Latter-day Saints.
Romney is well aware that an unconstitutional religious test is being applied to him, but he may be seriously minimizing the problem's scope as limited to relatively few fanatics. He feels the vast majority of conservative voters worried about his faith will flinch at the prospect of another Clinton in the White House.
It is of course true that Article VI of the U.S. Constitution says, "[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." But the idea that this (or anything in the seven articles and majority of the amendments) is a limitation on the people, as opposed to the government or other actors exercising state power, is simply madness. That part of Article VI forbids the government from preventing someone from taking office because of their religion, or (this amounts to the same thing) making them take an oath expressing their belief in a particular religious faith. This is particularly clear if you contrast it with the state practice at the time, where eleven states did apply a religious test as a qualification for office, nine of them in their state constitution.

Despite the fact that almost nothing in the constitution directly limits the choices of the people, and that this clause doesn't even on its face purport to, Novak thinks that voters who refuse to vote for Romney because he's a Mormon are themselves doing "precisely" what the amendment prohibits and are behaving "unconstitutionally." Now of course I agree that with Novak that it's a bad idea and contrary to the best parts of American practice to let someone's belief about whether or which God exists effect your decision on whether or not to vote for them, but the idea that it's unconstitutional, that is, illegal, is absurd. Also I wonder if Novak has made the same point in the past when voters were applying a "religious test" to the disfavor of Democratic candidates.




Who does he think he is?

Posted mostly because I wanted to provide the setup question for the title of the linked post. Also because anything which makes the Mets look bad makes me happy. Lemiuex's thought about Bill James's rankings remind me of an arguement I got into the other week over who was better in the 1990s, Ken Griffey, Jr. or Barry Bonds. Since James explicitly addresses this and comes out strongly in favor of Bonds, all I wanted to do was force my co-debatant to read the book.

(Fake) Update: Various Mets fan readers write in to say that Keith Hernandez is not the authentic face of the Mets. I wish I agreed with that. But sadly, he is their very image today




Kids these days

While I of course read yesterday's NYTimes story on the West Wing almost as soon as it was published, I'm somewhat disturbed that it's currently (10:50 AM) the most e-mailed story on the Times website. Admittedly, I do not normally pay much attention to what the most e-mailed story is, so it is possible that it's not usually a straight news story, but I'm somewhat bothered by there being more interest in a fictional election than anything in the real world. On the other hand, if you read the story you'll find out that Martin Sheen was asked to run for the Senate in Ohio by the Democratic Party, but that instead he's finally going to college at the University of Ireland at Galway. Also that Bradley Whitford will be going straight from West Wing to Aaron Sorkin's new show.




Response to imaginary critics

This post is going to claim, without evidence, the following:
1) Legal academics frequently complain about the way law journals run their article selection process.
2) The vast, vast majority of legal academics were on a journal when they attended law school.
3) The legal academics who both complain and were on a journal do not go on to disparage their own skill at article selection.
4) While it is possible that journal editors who go on to be legal academics were systemically better article selectors than other law review editors, I see no reason to believe it.
This post just claimed the preceding.




Not to be dissuaded

Earlier today, I made an observation: the use of commas and semicolons in the 5th Amendment of the U.S. constitution is internally inconsistent. That is, if the way we (courts, scholars, students with delusions of grandeur) currently read, and have for many years read, this Amendment was the intention of the Framers, they shouldn't have punctuated it the way they did. I'll have to quote it in full to illustrate:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The first clause, requiring grand jury indictments, is offset from the rest of the amendment by a semicolon (the one after "danger"). The second clause, forbidding double jeopardy, is offset by a semicolon (the one after "limb"). The third clause, forbidding compelled self-incrimination, is "offset" by a comma. This offsetting by comma, if one reads pedantically, means that the prohibition on self-incrimination would be read as only being disallowed without "due process of law." But the phrase due process of law is normally (and correctly) read as part of the fourth clause. So the punctuation is inconsistent, and creates a potential for misreading.

Immediately after making the above observation, I thought back to some vaguely remembered general complaints about the punctuation of the Constitution, but couldn't recall having ever heard the specifics of these complaint. And the fact that someone (even many someones) else has very likely thought of something in the past can't possibly be a reason not to post it on your blog after thinking of it independently.

Finally, googling for other instances of this observation, I found a couple. The first is by someone named William D. Gwinn. All I know about him is that he wrote the linked essay, making the same observation as above and then adding on a bunch of false and/or crazy claims. I'm glad to see that the author and I have so much in common. The second relevant hit for my search ("5th Amendment comma semicolon" (no quotes in original)) is a law review article by Thomas Y. Davies (.pdf) which discusses punctuation problems in state precursors to the 5th Amendment, but doesn't seem to mention the above inconsistency. I remain certain that many other people are aware of this problem and they have simply not made their awareness sufficiently googleable.

The Yankee game just ended, so next time I post I'll say something about opening day.





Since it happens rarely, I'm sure it'll get a bunch of attention, but this Kevin Drum post seems to be substantively wrong. That is, even if the court made a mistake in refusing to grant cert., it was a pretty small mistake (though I suppose a small mistake in a very important case is still bad), not the kind of thing I'd be tempted to call "a disgrace." I was actually just going to describe the post as totally wrong, but I've been enlightened. While it's true that the court couldn't provide any remedy at all for Padilla's present imprisonment because the issue in the case is whether his now discontinued military detention was constitutional, and that issue is now moot as to him, there is a remedy they could supply which would potentially aid him. I discovered this via Steve Vladeck's post on the issue, which mentions the potential remedy of a Munsingwear order, something I'd never heard of (I'll make use of the "only a second year law student" excuse here). This is apparently a remedy courts use when mootness of the original dispute denies a case the appellate review it would otherwise have the oppurtuity to recieve, in order to prevent the unreviewed decision from blocking a future case via res judicata, which is a potential harm to Padilla which the court would be able to remedy. There is a reasonable argument that the court should have issued that remedy, vacating the 4th Circuit opinion which permitted Padilla's indefinite detention.





It's difficult to summarize the issue in the first letter to the Ethicist this week without losing relevant detail, so I'm simply going to quote it:
I use my furnished condo as a summer home and rent it out the rest of the year. A potential tenant, a lady from Pakistan, seemed ideal except for one thing: the condo's ventilation is not very good, and daily cooking with heavy spices would make the curry smell impossible to remove. I felt guilty rejecting her because of her cooking...
Cohen's answer addresses both moral and legal issues, so this one will as well. The moral problem, which Cohen seems to be implying by example, is one of implicit bias. That is, if the renter had an established policy (even a policy that only the renter was aware of) of never renting to anyone who was likely to leave the aparment with a non-temporary displeasing odor, and did his/her1 best to check whether or not each potential resident was going to cause a conflict with that policy, there would be no problem. Further, this wouldn't be a problem (ethically) even if, in enforcing the policy, it turned out that cases where renting to someone would lead to a violation of it, that someone is a member of an ethnic group other than that of the renter, as long as it truly was the potential odor which motivated the lack of an offer to rent. But going from the data point of "potential tenant is is member of ethnic group x" directly to the conclusion that an odor problem will exist is just begging to give biases an unreasonable sway in decisionmaking.

Legally, whether or not a potential claim is being created (assuming that this is the only home which the renter rents out, as the letter seems to imply) depends entirely (at least for Fair Housing Act purposes, I'm not considering any other Federal law or potential state laws) on whether or not the renter a) made use of a real estate broker or similar service, or b) advertised the rental in a way that indicated an intent to base the choice on an impermissible characteristic (FHA ยง803(b)(1)). The latter seems unlikely from what's indicated in the letter, and I have no basis to opine on the former.


You can all just take a walk

I'm a fan of the original, as a pretty well-structured suspense film, but I never seriously considered seeing Basic Instinct 2. If you did, hopefully Manhola Dargis's review will persuade you otherwise. I can't add any sincere statements to a review of a film I haven't seen, except to say that i believe her.

Instead of seeing the above-mentioned film, Inside Man is recommened, though I refuse to explain why other than saying that it has elements which will appeal to filmgoeres of varying tastes.

Finally, while the Ethicist isn't bad this week (I'm really trying to write about the column again), I'll have some bones to pick tomorrow.