Is the Tide Turning on the Rape Culture Crusade?

For a time now, the crusade to declare a rape culture on campuses and to address it through a series of standards that denies accused males a variety of due process protections has been progressing largely unimpeded.  Perhaps the high point was the California affirmative consent statute and the Rolling Stone article on the alleged University of Virginia rape at a fraternity.

But since those two events, there has been a significant pushback against the crusade.  Of course, the crumbling of the Rolling Stone article has been important, showing once again (after Duke, after Hofstra, etc, etc.) that such allegations are sometimes not credible.  But it has also been 28 Harvard Law Professors – mainly of the left – who have attacked the one sided standards at Harvard.

Now comes an excellent article by Emily Yoffe who writes the Dear Prudence column at Slate.  Yoffe is no right winger (in fact, I have sometimes disagreed with her advice from my own political perspective) and has very mainstream media credentials.

Read More

American Constitutionalism for a Country Without Americans

USA flag

Joseph de Maistre never met men in the abstract. Frenchmen, Italians, yes—but not “Man.” There were no universal principles of government, applicable to all men at all times, only governments suited to the different kinds of people in different countries.

Maistre was right, and to that extent, American conservatives are wrong if they think that their constitution is the perfection of human reason, a light unto the Gentiles. They’re especially wrong since the Constitution isn’t looking too good these days. One can love liberty and one can love America’s Constitution, but one can’t love both together without a thick set of blinders.

Read More

The Commerce Power and Constitutional Structure: Counterarguments

In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant.  Here I discuss whether there are any counterarguments to my position.

One counterargument is that redundancy is not a serious matter since the Constitution contains clear redundancies.  I disagree with this view.  The standard way of writing formal legal documents, especially short ones, like the Constitution was to avoid redundancies.  As a result, courts interpreted the document to avoid reading it to contain surplusage – including in the landmark case of Marbury v. Madison.  (On the argument for following interpretive methods at the time, see here.)

It is true that the Constitution does contain a few redundancies, such as Congress’s power to establish inferior federal courts in both Article I, section 8 and in Article III, section 1.  Sometimes one can come up with an explanation for a redundancy — with the second provision added for clarification or as a limitation.  But if not, one must accept it as an oversight of the drafting process.  But the few redundancies that the Constitution contains should not be used as a justification for embracing redundancies or failing to regard redundancies as matters to be avoided.  That way lies clear misinterpretation.

Read More

CIA Versus the Senate Intelligence Committee

Ceremonial Swearing-In Of Leon Panetta Is Held At CIA Headquarters

Well, it’s finally out.

Reading the Senate Intelligence Committee’s report on the CIA’s use of “enhanced interrogation” after 9/11, and listening to the CIA’s reaction reverberating through the media, I found myself finishing other people’s sentences. Having served on that committee’s staff for eight years, I have seen this movie many times before.

The occasions have varied—a covert action somewhere gone awry, cases of foreign espionage long undetected, even flawed analyses of weapons systems that could well have invited nuclear war—but the script is always the same.

Read More

Congress at Work. Really!

Yesterday, the House of Representative passed a massive $1.1 trillion spending bill to keep government—most of it, anyhow—operating through the summer of 2015. (The measure is expected to pass the Senate unless someone filibusters.) Senator Warren, the Madame Defarge of the U.S. financial sector, is very upset about one piece of the bill: an amendment to the Dodd-Frank Act that would give certain FDIC-insured banks the ability to keep derivatives contracts on their books (as opposed to the statutorily required “push-out” to subsidiaries). Senator Warren thinks this fix will spell the difference between the Dodd-Frank’s ironclad anti-bailout protections and a future Armageddon at taxpayer expense.

Read More

Should We Fear Our Machine Overlords?

This year has brought renewed optimism about the prospects for strong artificial intelligence and new expressions of fear about its dangers. And some prominent people have expressed optimism and fear simultaneously. Stephen Hawking argues that AI is progressing rapidly, possibly leading to the biggest event in human history– the creation of  general machine intelligence that exceeds that of humans. Hawking also argues that creating more intelligent machines might also be the last such event because they will takeover.  Elon Musk, the entrepreneurial creator of Tesla and Space X, sees strong AI as a demon that we will unleash on humanity.

One might dismiss these concerns as the latest manifestation of a fear that goes back to the Romantic Era. It was first represented by Frankenstein’s monster, who symbolized the idea that “all scientific progress is really a disguised form of destruction.” But Hawking and Musk are serious people to whom attention must be paid.

On balance, I think the threat posed by autonomous machine intelligence is overblown. 

Read More

Constitutional Structure and the Modern Commerce Power

In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution.  The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless.  If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken. The second structure feature applies in less extreme cases.  Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage.  This structural feature…

Read More

Pantagruel Comes for the Establishment Clause


In the second book of the 16th century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.”

Read More

Eloquent Pointers from “Silent” Cal


Ulysses S. Grant and Calvin Coolidge are two U.S. presidents known for their taciturnity. They also happen to be the two who left the best memoirs. Grant’s having been brought out as a Library of America edition is a sign of its status as an acknowledged classic. The same treatment ought to be accorded the Chief Executive known as “Silent Cal.” His Autobiography, published in 1929, has many virtues, as did the man, and one of its greatest is what it says about its author’s education, and education in general.

Read More

Towards a Global Dystopia

Global community

There is a great and dangerous Trust seeking to form globally. Like any monopoly in days past, or OPEC now, its aim is profit. But its means are far more sinister, and potentially far more effective, than anything ever investigated by the Pujo Committee.

Rather than merely raising revenues on some good or service, this Trust will follow you wherever you might run. Nothing like it has been seen since the days of the fugitive slave acts. It is more controlling than when medieval lords bound their serfs to their estates, or the Roman latifundia forced Romans back to the land. The idea: To attach a uniform worldwide rate upon the surplus of your productive endeavors for the benefit of its members.

Read More