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Clayton Cramer's BLOG |
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Clayton's commentary on news and events of the day. Broadly speaking, I'm a conservative with libertarian sympathies (getting more conservative as my children get older).
 Never forget! I'm running for Idaho state senate I've written a number of history books, as well as scholarly and popular articles, (see my web page).
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Saturday, December 14, 2002
Press Coverage of the Revocation of Bellesiles's Bancroft Prize At ABC. And the AP wire story at the Washington Post. Knopf is not going to pull the book! The New York Times has it (read it now--it's only free for seven days), and for once, Bellesiles has nothing to say. Here's The Press Release Announcing That Bellesiles's Bancroft Prize Has Been Revoked COLUMBIA UNIVERSITY'S BOARD OF TRUSTEES VOTES TO RESCIND THE 2001 BANCROFT PRIZE PRIZE HAD BEEN AWARDED TO MICHAEL BELLESILES FOR HIS BOOK ARMING AMERICA: THE ORIGINS OF A NATIONAL GUN CULTURE Contact: Eileen Murphy, Columbia University emm2103@columbia.edu (212)854-5573 Columbia University's Trustees have voted to rescind the Bancroft Prize awarded last year to Michael Bellesiles for his book Arming America: The Origins of a National Gun Culture. The Trustees made the decision based on a review of an investigation of charges of scholarly misconduct against Professor Bellesiles by Emory University and other assessments by professional historians. They concluded that he had violated basic norms of scholarship and the high standards expected of Bancroft Prize winners. The Trustees voted to rescind the Prize during their regularly scheduled meeting on December 7, 2002 and have notified Professor Bellesiles of their decision. The Bancroft Prize, which was first offered in 1948, is to be awarded for works in American history of "distinguished merit and distinction." The selection criteria for the Prize specify that it "should honor only books of enduring worth and impeccable scholarship that make a major contribution to our understanding of the American past." Professor Bellesiles' book seemed to fulfill these criteria at the time of selection. However, it has since been the subject of substantial debate within the community of American historians that included charges that Professor Bellesiles had committed scholarly misconduct in the use of some of his primary source materials. In response to these charges, Emory University, where Professor Bellesiles holds an appointment, established a panel of three distinguished scholars from other universities to conduct a review. On October 25, 2002, following this review, the panel issued a report. In it, the panel members found "evidence of falsification" with respect to one of the questions they were asked to consider; spoke of "serious failures of and carelessness in the gathering and presentation of archival records and the use of quantitative analysis" on two others; and questioned "his veracity" with respect to a fourth. They also concluded that he had "contravened" the norms of historical scholarship both "as expressed in the Committee charge and in the American Historical Association's definition of scholarly 'integrity.'" Columbia's Trustees considered the report of the Emory investigating committee and Professor Bellesiles' response to it. They also considered assessments by professional historians of the subject matter of that report. After considering all of these materials, the Trustees concurred with the three distinguished scholars who reviewed the case for Emory University that Professor Bellesiles had violated basic norms of acceptable scholarly conduct. They consequently concluded that his book had not and does not meet the standards they had established for the Bancroft Prize. In making their decision, the Trustees emphasized that the judgment to rescind the Bancroft Prize was based solely on the evaluation of the questionable scholarship of the work and had nothing to do with the book's content or the author's point of view. Thursday, December 12, 2002
"A New Constitutional Vision" How Appealing! links to Ed Lazarus's FindLaw article about how Democrats should question Bush's judicial appointees, and points out that what Lazarus is proposing is both contrary to accepted principles (you don't ask judges how they will rule on particular issues that will come before them) and erroneous on what positions conservatives have actually taken: And then there's the question of how carefully Ed researched the facts on which he has based his proposal. For example, he writes: "The conservative justices believe that the Eighth Amendment to the Constitution places strict limits on punitive damages against companies yet virtually no limits on punishing criminals." Hmm, where was Ed when the U.S. Supreme Court decided Browning-Ferris Indus. v. Kelco Disposal, Inc., which held "on the basis of the history and purpose of the Eighth Amendment, that its Excessive Fines Clause does not apply to awards of punitive damages in cases between private parties." Indeed, the very Justice for whom Lazarus clerked wrote the majority opinion in that case right around the time that Lazarus was clerking at the Court. And some of the Court's most conservative members joined in that ruling.My objection to Lazarus's column is here: Conservative politicians have successfully put forth their vision of the Constitution - it is libertarian in that it is supportive of gun rights and states' rights, and socially conservative in that it allows a close relationship between church and state. Meanwhile, Democratic politicians have not put forth a sufficiently strong competing vision.Democrats have put forth a "strong competing vision": very strict gun control (for the time being, wink, wink); and a view of the First Amendment's religious establishment clause that is both ahistorical, and at times shows a complete lack of tolerance for religion in the public sphere. That "strong competing vision" is one that has been rejected by the majority, as the last two elections have demonstrated, when even Democrats have to distance themselves from gun control and the ACLU's bizarre views about "separation of church and state." Perhaps Mr. Lazarus's problem is that he fails to understand that the Constitution does not embrace "democratic principles of governance." The Bill of Rights is a list of restrictions on democracy--a statement that the majority can't have what it wants, when it wants it. What I find so amusing is that liberals talk about "democratic principles of governance" while arguing that the courts have an obligation to strike down laws that both state and federal legislative bodies have passed. You can't support Roe v. Wade and also support democracy. They are incompatible. The state governments passed laws severely restricting abortion; Roe v. Wade said that the majority and its representatives couldn't pass such laws. You can't support the Court overturning Bowers v. Hardwick and also support democracy. They are incompatible. The state governments passed laws (often a century or more ago, but in my state of Idaho, in 1972) prohibiting sodomy. Overturning Bowers would mean that "democratic principles of governance" have been ruled less important than what individuals do in private. Mr. Lazarus, like many liberals, simply doesn't seem to understand that he is holding one set of principles, and supporting a conflicting set of policies. He needs to start thinking a bit more carefully about this subject. Labels: abortion Doonesbury Is Actually Funny Again! I don't know what happened, but yesterday's strip and today's strip are really funny! The Evil of Plea Bargaining Michael Kinsley has an article over at Slate that says what I have felt for a long time: plea bargains are bad. His point, and one that I have thought for a very long time, is that people end up pleading guilty to crimes that they didn't commit, rather than take the risk of being wrongly convicted, and getting an even stiffer punishment: Plea bargaining might also be thought of as an insurance policy. Insurance is a way of trading the risk of a large bad outcome (your house burns down and you're out $100,000) for the certainty of a smaller bad outcome (a bill arrives and you're out $850). Plea bargaining is a way of trading the risk of 20-years-to-life for the certainty of five-seven. But by creating this choice, and ratcheting up the odds to make it nearly irresistible, American justice virtually guarantees that innocent people are being punished.There's no question in my mind that a lot of the people that plea bargain do so because they are members of the criminal classes, and if they didn't do this crime, they probably committed some other crime. But there are certainly completely innocent people, at least on occasion, who end up taking a plea bargain because: 1. The defandant is poor, and doesn't have a decent lawyer. (From doing jury duty in Los Angeles some years ago, I can tell you that nearly all the public defenders made abominable use of voir dire. There was only one of them that I would have wanted to defend me.) 2. The defendant is of of an ethnic or racial group that "everyone knows" are criminals, and he decides, perhaps incorrectly, that he isn't going to get an fair shake anyway. One of my concerns, and it appears one of Kinsley's concerns, is that the criminal justice system in many big cities is making up in quantity what it lacks in quality. If the police have done a lousy job of gathering evidence, and their case is so weak that the prosecutor thinks that he will probably lose in court, why should the defendant be sent to jail or prison on a lesser charge? This worries me. I also worry that plea bargaining may be a way to cover up some very careless or incompetent evidence gathering or investigation by police. Yes, I am thinking of what happened in the Timothy McVeigh case. The FBI put evidence seized from the bomb scene, and evidence seized from McVeigh's car, into the same paper bag, and flew it Washington. In Washington, they pulled this evidence of the paper bag, and ran it through a device capable of detecting nanogram quantities of explosives. Sure enough, McVeigh's clothing had explosives on it! (It's a good thing McVeigh finally confessed before he was executed--from reading the trial transcripts, I might have had trouble voting for the "preponderance of evidence" standard of a civil trial, much less "beyond all reasonable doubt to a moral certainty.") Another concern that the McVeigh trial exposed (at least to me), and which is a related issue to this matter of plea bargaining, is the threat of severe punishment used to coerce testimony. In the case of McVeigh, the only witnesses who could clearly testify about his involvement in the bombing preparations were the Fortiers, who were facing an enormous number of federal and state felonies. This cross-examination of Lori Fortier by Stephen Jones (one heck of an attorney, if you ask me) really captures the unequal position of prosecutor and defense attorney when it comes to getting witnesses to say what you want: BY MR. JONES:To put it bluntly, the threat of an aggressive prosecution and decades in prison is a very effective tool to get a witness to say whatever the government wants. It would be nice to think that prosecutors wouldn't encourage a witness to commit perjury, but even if the prosecutor is completely neutral, the witness will figure out pretty quickly what the prosecutor wants to hear. Tuesday, December 10, 2002
The Senator Clause Eugene Volokh pointed me to this complaint by Virginia Postrel about the guarantee of two senators per state: The ongoing emptying out of the rural midwest does raise a serious political question: How long do these shrinking states get to keep all those senators, who seem to exist mostly to vote their constituents subsidies that take money from the rest of us and food and opportunity from the truly poor people of the developing world?Consider the alternative: California, instead of electing two senators who want to disarm Americans, get to elect twelve senators that want to do that. Dealing with farm price supports is one of the prices of not living in a police state. More About The 9th Circus An attorney who I will not identify (you will see why shortly) has the misfortune to practice law before the 9th Circus. He told me that the 9th Circus's problems aren't just that the judges are liberal. The other problems are that they are on average not terribly bright, lazy, they don't read the briefs before oral arguments, they don't read them carefully afterwards, and they are rude as well. Amusing remark from an attorney on an email list of which I am a member, discussing a possible suit on Second Amendment grounds: Not that I'm in a position to try, since Arizona is in the 9th Circus, and bringing a second amendment case in that circuit is akin to "Plaintiff's Petition For More Bad Caselaw." Labels: gun rights Death Penalty Appeals I'm not a fan of the death penalty (though there's no question that it is constitutional), but I do find very worrisome that at least some people are getting convicted who are clearly innocent. But the death row appeal that the Supreme Court refused to hear today is rather interesting: Abdur'Rahman was on parole for another killing when he fatally stabbed a man and wounded and the man's girlfriend in Nashville in 1986.Hmmm. It sounds like like Mr. Abdur'Rahman has developed a very bad habit. If 10% of those convicted of murder are actually innocent--a high but not utterly implausible number--what are the chances that someone convicted twice of murder is actually innocent on both charges? If my understanding of statistics is correct, about 1% (.1 * .1 = .01). Because of the enormous care that goes into capital cases on appeal (to make up for defense attorneys falling asleep during the trial), I would be surprised if the "actually innocent" percentage is even 10%. If I could be confident that those currently being sentenced to death would never be released from prison (except when found actually innocent), I would not shed a single tear for the loss of the death penalty. There are way too many aspects of it that remind of a scene in the 1984 film version of 1984, where we see prisoners of war being executed during the Two Minute Hate. It just makes chills run up and down my spine that overwhelm whatever intellectual rationalizations I can produce for it. Because death penalty opponents are overwhelmingly people that don't believe in prison, either (because all criminals are victims, too), it is hard to have much confidence that life in prison would actually happen. Once the death penalty was repealed throughout the country, the ACLU's full energies would be devoted to proving that life in prison was cruel and unusual punishment; that it destroyed any incentive for criminals (excuse me, the differently valued victims of capitalism) to reform; and that it was cheaper to send them to Stanford. Keeping the death penalty advocates busy fighting this battle means that they can't screw up the rest of the criminal justice system. Yes, I am profoundly cynical about the ACLU. The First Real Snow of the Season Here in Boise There have been attempts to snow, but never enough to lay down a blanket. For the last 7-10 days, we have had a depressing inversion layer, making the world very gray. Now, the snow is falling, people are driving slowly and badly, and the snow is sticking! I will find out how well the Corvette's traction control works on snow. Actual Iraqi Government Job Title: "Violator of Women's Honor" One of the things that I like about Jonah Goldberg, who edits National Review Online, is his ability to make you laugh, while also forcing you think something really serious and important. This column of his starts out with a mixture of the macabre and depressing, and something mildly amusing as well (his description of the New York Times editorial board): There are some professions American colleges simply don't prepare you for. Consider Aziz Salih Ahmed. He works for the Iraqi government. His technical specialty? He's a "violator of women's honor," according to his Iraqi identity card. In other words, he rapes women. Presumably he likes it. But he does it on the government's dime so whether he likes brutally raping women or not, he's probably good at it or at least he's good enough for government work.The rest of Mr. Goldberg's column is about why liberals are so intent on making sure that we don't go to war against Saddam Hussein, out of dread fear that we might not get around to taking care of the rest of the world's abusers of human rights. Monday, December 09, 2002
More Evidence That Reinhardt's Decision About the Second Amendment Was Wrong The decision is here. My latest discoveries include that he says in footnote 30: The Fifth Circuit dismisses the Aymette decision because it believed that the constitutional provision relied on by the Tennessee court granted free white men the right to “keep and bear arms for their common defense.” According to the Emerson court, the “common defense” language, which is not present in the Second Amendment, rendered the interpretation of the Aymette court inapplicable here. However, the Tennessee court reached its conclusion primarily because of a different provision of the state constitution that did not include the “common defense” language. Thus, the Fifth Circuit’s attempt to distinguish Aymette fails.The problem is that this is just plain wrong. You can read the text of decision here, or see an image of the original. The headnotes say, very clearly: The act of 1837-8, ch. 137, sec. 2, which prohibits any person from wearing any bowie knife, or Arkansas tooth-pick, or other knife or weapon in form, shape or size resembling a bowie knife or Arkansas tooth-pick under his clothes, or concealed about his person, does not conflict with the 26th section of the first article of the bill of rights, securing to the free white citizens the right to keep and bear arms for their common defence.The body of the decision is equally clear on this point. The only reference to other constitutional provisions are the Second Amendment, which it says was adopted for the same reason as Art. I, sec. 26 of the Tennessee Constitution, and Art. I, sec. 28, concerning the meaning of "bear arms." The decision was made entirely based on the Art. I, sec. 26, concerning bearing arms for "the common defence." Reinhardt's footnote is just plain wrong. Had he read Aymette, he would know this--and he would also know that Aymette found that the only constitutionally protected arms were those that are used in "civilized warfare" (meaning, assault weapons, whose ban this decision upheld). More factual errors: We also believe it to be significant that the first version of the amendment proposed by Madison to the House of Representatives concluded with an exemption from “bearing arms” for the “religiously scrupulous.” THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS 169 (Neil H. Cogan ed., 1997) [hereinafter BILL OF RIGHTS] (“[N]o person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”). Historians have observed that “[n]o state at the time, nor any state before, had ever compelled people to carry weapons in their private capacity.” Finkelman, supra, at 228.Except that this isn't correct. A number of the colonies had laws in effect that required individuals to carry arms (including guns) when traveling, attending church, or other public meetings. See this 1642 Maryland statute. And this 1636/7 Massachusetts statute. And this 1639 Portsmouth, Rhode Island ordinance. And this 1623 Virginia statute. I haven't bothered with all the similar statutes that apply only to members of the militia. Finkelman's defense of his statement is that these are colonial laws, not laws of the states. But since there was only about 13 years of statehood before the Bill of Rights, anyone would understand Reinhardt's claim that "nor any state before" would suggest more than just the strict statehood. Labels: gun rights Sunday, December 08, 2002
Glad We Cleared That Up From an AP news story in the December 8, 2002, Idaho Statesman, an article titled, "9th Circuit deals with the most cases an criticism." While discussing the rulings about the Pledge of Allegiance and Judge Reinhardt's recent ruling denying that the Second Amendment protects an individual right, there is a photograph of a lady with the following caption, quoted in full: Mary Schroeder, chief judge of the 9th U.S. Circuit Court of Appeals in Phoenix, says judges are not pursuing personal or political agendas.Yeah, I guess they go under the knife shortly after elevation, and have all those human qualities surgically removed. I'm not sure who thinks we are idiots--Judge Schroeder, for saying it, or the reporter, for using it as a caption. Labels: gun rights Unemployment Benefits Permagringirl has an item (okay, a few weeks old, I'm getting behind in my reading) about unemployment benefits running out. She's not very sympathetic to those who are about to run out of benefits. Perhaps because I collected unemployment for a couple of months last year (for the first time in more than 20 years), I am sympathetic. Unemployment benefits aren't generous enough to raise a family on--not even close. The best that they do is slow the money hemorrhage from being out of work. I found a job as quick as I could, including doing some part-time consulting work for a few weeks, which reduced my unemployment checks a bit. I know that there are people who spend their whole lives working just enough to be able to collect unemployment for six months, then they go get another job to build up eligibility again. But I would guess that right now these are outnumbered by the people who lost jobs as a result of 9/11, and who are having trouble finding work. It is true that if you are willing to move, you'll have an easier time finding a job. I moved from California to Idaho in the pursuit of a job. For a single person, moving is pretty easy. For a family, it gets more complicated--especially if your spouse is working as well. |
