U.S. Sen. Robert Byrd (D-WV) apparently added a rider ($) to the FY2005 appropriations bill requiring any educational institution receiving federal aid to have some sort of “instructional program on the U.S. Constitution” every September 17, according to today’s Chronicle of Higher Education daily update. (Here’s a link for people not blowing $85/year on the Chronicle.)

Perhaps we political scientists (who, doubtless, will be the individuals subject to this unfunded mandate) should also devote another day—say, December 3—to teaching about the practice of including non-germane provisions in conference reports, thus circumventing the committee system and the rest of the ordinary legislative process. I feel the need for a “teach-in” already.

In what has to be about the most unsurprising other-shoe-drop since the Michael Jackson child abuse allegations, the San Francisco Chronicle reports (via ESPN.com) that San Francisco Giants slugger Barry Bonds (unknowingly, he alleges) used performance-enhancing drugs supplied to him by his trainer, according to sealed grand jury testimony leaked by prosecutors obtained by the newspaper. Coupled with Jason and Jeremy Giambi’s admissions that they used steroids supplied by Bonds’ trainer, things aren’t looking good for baseball’s image.

A larger issue here, pointed out by David Pinto, is that these leaks are likely to undermine the grand jury system—not just in this case, but in a lot of other cases too. Given that the Justice Department is not only responsible for prosecuting this case, but investigating grand jury leaks (which, pretty much by definition, can only come from prosecutors, as no other parties have unrestricted access to the transcripts), the “fox guarding the henhouse” aspect of these leak investigations does not fill one with much confidence about the integrity of the grand jury system.

Update: Steven Taylor questions the sanity of Bonds’ reported decision to use unknown substances (steroids or not) obtained from a guy who lived in his car. No kidding. David Pinto recommends reading the whole thing for a glimpse into Bonds’ mindset, and asks the $64,000 question—what does Bud Selig do about these revelations?

Will Baude notes a lot of pessimism around the court-watching sphere regarding Ashcroft v. Raich—mind you, much of it seems to be coming from quarters that are skeptical of the whole Lopez line of jurisprudence, without which I suspect this case would have simply received the standard 9–0 Ninth Circuit Smackdown (for some of this, er, conflicted viewpoint, see today's NYT editorial). He does make a semi-interesting statement worth exploring further:

[T]he somewhat confused coverage of the case does not look good for any hope of establishing a political vindication instead of a judicial one.

It seems to me that relatively few people in the public—or, for that matter, within political elites—actually conceive of Congress as lacking the plenary power to legislate as it sees fit in any sphere of activity (economic or otherwise), subject only to the limitations of the Bill of Rights and subsequent amendments. The Lopez line is such a dramatic break from over fifty years of federal jurisprudence that I doubt many people can imagine that America got along, more-or-less fine (at least in the economic/police powers realm; I can’t say the same for the lack of enforcement of the 14th Amendment in terms of political rights), for 150 years without such a plenary congressional power, under the understanding that primary authority for such regulation rested in the states.

There are more thoughts on this topic from Brock, below, and James Joyner.

I’m no big fan of Randy “Buy My Book” Barnett qua blogger, but after Lawrence Lessig, he’s my second favorite lawyer. I join Jim Lingren in wishing Mr. Barnett the best of luck Monday in oral argument before the Supreme Court in the case of Raich v. Ashcroft.

I’d love to see Raich win the case, but I’m not getting my hopes up.

Is amending the constitution to permit naturalized citizens to run for president gathering momentum? Both Kriston of Begging to Differ and Robert Tagorda take note of the group Amend for Arnold and Jen (referring to the governors of California and Michigan, Arnold Schwarzenegger and Jennifer Granholm, respectively), spotlighted in today’s New York Times by William Safire.

Interestingly, three proposed constitutional amendments have been introduced during the 108th Congress to do just that:

• U.S. Rep. Vic Snyder of Arizona Arkansas (and 6 co-sponsors) introduced H.J.Res 59, which would provide that “[a] person who has been a citizen of the United States for at least 35 years and who has been a resident within the United States for at least 14 years shall be eligible to hold the office of President or Vice President.”
• U.S. Rep. Dana Rohrabacher of California introduced H.J.Res 104, which would provide that “[a] person who is a citizen of the United States, who has been a citizen of the United States for at least 20 years, and who is otherwise eligible to hold the Office of the President, is not ineligible to hold that Office by reason of not being a native born citizen of the United States.”
• U.S. Sen. Orrin Hatch of Utah introduced S.J. Res 15, which would provide that “[a] person who is a citizen of the United States, who has been for 20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States” and include a seven-year limit on the ratification period. The Senate Judiciary Committee held a hearing on the proposed amendment last month.

As a matter of general principle (leaving aside the merits of Schwarzenegger and/or Granholm candidacies, which seem to me to be rather tangential) I think any of these proposed amendments would be sound, and I hope Congress will seriously consider passing such an amendment in the coming months.

Viagra and Oxycontin bottles will soon be tagged with RFID chips, under a new FDA initiative to discourage theft and counterfeiting.

"Right away, for the first time ever, a cop can say 'that bottle came from a crime scene and this suspect is in possession of stolen property'," [Purdue Pharma chief security officer Aaron] Graham said.

(Purdue Pharma is the manufacturer of Oxycontin, a narcotic.)

Maybe I’m missing something, but what will stop thieves from just removing the pills from the bottles and throwing the bottles away?

If the “war on drugs” didn’t have such a high cost in human freedom, the ineffectual antics of the drug warriors would be a laugh riot.

I can’t say I’m particularly disappointed to see John Ashcroft getting shown the door at DoJ, although his caricature as the bogeyman of America’s civil liberties has been just a tad exaggerated over the years.

Hugh Hewitt thinks the Bainbridge-Corner campaign to push Arlen Specter out of the judiciary chairmanship is a really bad idea. Perhaps if they won’t listen to me or Hei Lun of BTD, maybe they’ll listen to him (þ: Glenn Reynolds).

Update: Ok, so much for that idea. These guys at NRO really don’t get it, do they? Meanwhile, James Dobson has joined the pile-on (þ: How Appealing), while Michael Totten is unimpressed to say the least.

Apparently Tuesday’s whopping 3% landslide win for George Bush has gone straight to Stephen Bainbridge’s head. Not content just to insult libertarians, he’s decided to make Arlen Specter his personal whipping boy, apparently under the delusion that Specter would take being deprived of his (rightful, under Senate seniority traditions) chairmanship of the judiciary committee any way other than defecting to the Democrats, and probably taking the majority with him—Lincoln Chafee has already made noises about leaving the GOP caucus, and shunting Specter aside would be the handwriting on the wall for folks like Judd Gregg, Susan Collins, Olympia Snowe, and John McCain that the “big tent” is shrinking. If you think Judiciary is hard to get conservative judges through now, just wait until Pat Leahy or Ted Kennedy is running the show.

Joe Gandelman has more realistic thoughts on what’s likely to happen, while the quotes in Friday’s New York Times suggest Specter is unlikely to be pushed aside.

Update: Todd Zywicki apparently also doesn’t get that Specter won’t be the only Republican to defect if he doesn’t get the chairmanship. And citing a vote against Bork—given Bork’s increasing Gore-esque nuttiness over the past few years—doesn’t quite make a particuarly convincing case that a Democrat-led Senate is worth standing on some bogus principle of undying party loyalty.

Economist Alex Tabarrok of Marginal Revolution argues in favor of prison privatization in the Pasadena Star-News.

More than two decades of experience with private prisons in the United States, Great Britain, Australia and elsewhere attest to the fact that private prisons can be built and operated at lower cost than public prisons.

Cost savings of 15 to 25 percent on construction and 10 to 15 percent on management are common. These are modest but significant cost savings in a $5.7 billion state system that continues to grow more expensive every year.

Private prisons not only have lower costs than public prisons: by introducing competition they encourage public prisons to also innovate and lower costs.

Back in August I wrote

If one is of a libertarian bent (as I am) with regard to victimless crimes such as drug use and prostitution, the problem would seem to be that imprisoning people doesn’t cost the government nearly enough. After all, the marginal prisoner is a lot more like Tommy Chong than Charles Manson.

To put it another way: if California were to save 15% on the per prisoner cost of incarcerating someone through privatization, how much of that savings would be returned to California taxpayers (through lowered taxes or paying off California’s debt), and how much would be used to incarcerate even more people through “tough on crime” measures like California’s three strikes law?

Henry Farrell unearths a tongue-in-cheek article from PS, and hilarity—at least for political science geeks—ensues (þ: Orin Kerr).

Update: Dan Drezner takes note of my approval (in comments at CT) of footnote 5 in the piece, which is simultaneously hysterically funny and completely true; next fall when (if?) I teach research methods, that one’s going in the lecture.

Today’s Clarion-Ledger has an interesting story based on an interview with Judge Neal Biggers, Jr., who presided over the Ayers desegregation case. Interestingly, a shutdown of both MVSU and MUW was on the table in the mid-1990s, but Biggers rejected that as part of the solution because he doubted the College Board’s sincerity in planning to shut them down. He also echos a point that I’ve made repeatedly over the years (and which has been a major roadblock to finalizing the settlement):

“The remedy for the situation was not to enhance segregated facilities, but to desegregate the facilities. Some of the plaintiffs, it seemed, wanted equal, segregated facilities,’’ [Biggers] said.

From the Miami Herald:

Authorities are seeking to extradite a Tennessee man - wanted for failing to pay child support - after learning that he underwent surgery in Colorado to donate his kidney to someone he met on the Internet.

Rob Smitty, 32, faces charges of failing to pay his ex-wife $8,100 in child support and medical payments, and a warrant is out for his arrest. He was recovering in a Denver hospital following surgery Wednesday to donate his kidney.

Smitty’s ex-wife apparently wishes that Mr. Smitty had not donated a kidney and saved a man’s life:

But Angie McCoy, Smitty's ex-wife, said she didn't think Smitty was acting out of altruism.

“It’s unethical, and it’s not right,” she said.

Others are also accusing Mr. Smitty of having non-altruistic motives, according to this Knoxville News-Sentinel story (registration or BugMeNot required).

In 1992, Smitty was sentenced to 12 years in prison for possession and conspiracy to distribute LSD. He served less than six months at a boot camp before being put on probation.

The criminal background only raises ethical questions surrounding the exchange, including worries that Smitty was paid for giving up a kidney.

“Why would someone give up a kidney to a stranger?” said Cathy Paykin, transplant programs director for the National Kidney Foundation in New York. “To get a sentence reduced? To look better in the eyes of the law? To get money? It’s so hard to manage motivation even under the best of circumstances.”

My take: let’s set aside the question of whether a free and open market for live organ donations would be a good thing. (See Tyler Cowen's thoughts on ths matter.) Mr. Smitty gave up a kidney and saved another man’s life. Whether his motives were altruistic or mercenary are irrelevant to assessing the morality of his action. At worst, his kidney donation was unwise from the perspective of self-interest.

If indeed he was paid for the kidney, I doubt that Ms McCoy will be complaining if she gets her cut.

Now, the heavy lifting begins after the final end of the Ayers lawsuit. Personally, I was never very clear on what the plaintiffs actually wanted (I suspect they would have been content with a segregated, “separate but truly equal” system), but in the end it ended up as more of a desegregation case than an equal financing case.

I tend to think that this state needs to focus its limited resources on K-12 education and community colleges, providing scholarships for the truly needy to attend four-year institutions while making the middle and upper class pay something close to “retail” for university educations, and shutting down or privatizing the non-doctoral institutions (Alcorn State, Delta State, Mississippi Valley State, and Mississippi University for Women). Unfortunately I think Ayers is a hindrance, not a help, toward those goals.

I would have figured Stephen Bainbridge was too smart to agree with a question with a premise this ignorant of history:

More to the point, will judges be returned to their historical role as neutral interpreters of the Constitution and precedent, or will the imperial judiciary be revitalized and extended for decades?

Judges as “neutral interpreters of the Constitution and precedent”? When, exactly, did the Supreme Court ever act like neutral interpreters of the Constitution? John Jay sat around on his buttocks all day while he was the first Chief Justice, but I don’t think this is the mythical “neutral interpretation” period.

Did I hear John Kerry correctly on Friday night when he staked out a position in favor of federal subsidies for the poor to exercise any right guaranteed by the Constitution? Here’s the exact quote:

[Y]ou have to afford people their constitutional rights. And that means being smart about allowing people to be fully educated, to know what their options are in life and making certain that you don’t deny a poor person the right to be able to have whatever the Constitution affords them if they can’t afford it otherwise.

I know he was talking specifically about abortion (while dancing around trying to avoid saying he’d approve federal funding for abortions), but the logical premise was based on any natural right, which presumably would include birth control (Griswold), non-commercial adult sodomy (Lawrence), free speech, free exercise of religion, travel, and a whole host of other rights.

Apparently I’m the only smart person who was completely lost when George W. Bush started talking about Dred Scott v. Sanford during Friday night’s debate. The Baseball Crank writes:

[A]nyone who pays attention to constitutional law debates understood the parallel Bush was trying to draw, however inartfully.

My constitutional law class discussed Dred Scott on Wednesday, and I’d be surprised if any of them had figured out any meaningful parallel to Roe; I certainly hadn’t, in part because Bush’s discussion of the case butchered the basis of the key holding beyond recognition, and in part because Dred Scott was essentially a textualist decision (albeit an “activist” one that struck down a federal law for only the second time in American history).

Meanwhile, Eric Muller elaborates on the “it’s all code” theory, in the process demonstrating Lawrence’s Cardinal Rule:

Surely Karl Rove had scripted some sort of moderately articulate point about the perils of judicial activism on hotly contested matters of personal freedom—something comprehensible and calculated to win over a few voters on the fence—that Bush just totally mangled.

My gut feeling is that—if this was a coded message—anyone who could have figured out the coded message already knew that Bush was committed to appointing justices who believe Roe was wrongly decided on the merits; the “code” theory assumes a remarkable level of political knowledge by the average pro-life voter to be effective, which flies in the face of everything we know about voters in general and (in particular) what Democrats think the general level of intelligence is of pro-lifers.

As James Joyner notes, the Senate approved 96–2 with two absences (guess who) their version of the 9/11 commission bill. Charles Babbington writes in the WaPo that the only two senators who opposed the measure were Robert Byrd and Fritz Hollings, “who said Congress was moving too rapidly on so complex a matter.” Who’d have thought I’d be in total agreement with the Klansman and the senator from Disney?

A couple of words for my friends at Redstate: bad timing.

Gays and lesbians should not be allowed to teach in public schools, Republican Jim DeMint said Sunday in a U.S. Senate debate.

The remark came late in the first debate between DeMint and Democrat Inez Tenenbaum — a testy and acrimonious hour that broke little new ground on their positions on most issues.

DeMint, a Greenville congressman, said the government should not endorse homosexuality and “folks teaching in school need to represent our values.”

The good news is, at least someone’s patriotism was questioned in the debate. (Couldn’t have a good debate without some patriotism-questioning.)

Tenenbaum, the state education superintendent, called DeMint’s position “un-American.”

DeMint said after the debate that he would not require teachers to admit to being gay, but if they were “openly gay, I do not think that they should be teaching at public schools.”

Tenenbaum later told reporters that “the private life of our teachers should stay private. I was shocked to hear him say that.”

And we have a nominee for “bad paraphrase of the day”:

College of Charleston political scientist Bill Moore said DeMint’s position would be unconstitutional…. [I didn’t truncate the quote; the ellipses are in the original. Go figure.]

No, DeMint’s position isn’t unconstitutional. A law that implemented DeMint’s position might be—presumably, Lawrence v. Texas and Roemer v. Evans would be controlling precedent, but I don’t think the Supreme Court has ruled that employment discrimination against homosexuals is unconstitutional.

The most amazing thing about this whole situation: Congress has virtually nothing to do with the hiring practices of local school districts (which are solely state and local responsibilities, even under cooperative federalism), so why on earth was this even being debated in the first place? Sheesh.

Oh, and for the donors who contributed to DeMint’s campaign via the Redstate effort, I have three more words: ask for refunds.

Both Katherine R and Sebastian Holdsclaw of Obsidian Wings are rightly horrified that the so-called “9/11 commission bill” includes provisions that may lead to the institutionalization of the abuses that Maher Arar was subjected to by Syrian authorities, with the apparent complicity of both the United States and Canadian governments.

This isn’t a “Republican” or “Democrat” problem—most members of both parties are going to vote for this bill, because they want to look like they’re “doing something” about terrorism. But this is something that is simply unconscionable. Let your senators and representatives know that this is not how America is supposed to do things and is completely unacceptable.

There’s more on the bill in today’s Washington Post.

I’ve been trying to come up with a decent essay exam question for my constitutional law class tying Korematsu together with the whole debate over Michelle Malkin’s book. I tend to agree with the assessment that Malkin is incorrect, although I do it in the “fact-free” perspective that encourages me to trust experts like Eric Muller rather than from the perspective of actually having read the book.

The slippery bit to me is that—reading between the lines of Muller’s snarkiness and Malkin’s disingenuity—Malkin seems to argue that the indefinite detention of some Americans of Islamic faith would be legitimate, and that other forms of racial profiling targeted at all Muslim-Americans would be legitimate, but full-scale removal of Muslim-American populations wouldn’t, and I’m not sure Korematsu speaks to that. In my mind, though, Korematsu is bad law anyway, and I don’t think anyone other than Thomas and possibly Rehnquist would support reaffirming it today—Scalia, to judge from his partial dissent in Hamdi, would probably be viciously opposed.

Anyway, I’ve basically concluded the question is a bust and I’ll have to move on to ask something more fruitful about some other cases. Since I already have a Hamdi question I think Korematsu is no great loss—and a clever student or three will probably work it in without my asking, anyway.

Words fail me:

Visitors to next month’s Mississippi State Fair may gawk at their reflections in the Fun House, witness the Mississippi State Championship Mule Pull or shake hands with the key suspect in the Klan’s 1964 killings of three civil rights workers.

Learned lawyer Richard Barrett, who heads the white supremacist organization known as the Nationalist Movement, said Edgar Ray Killen has agreed to make an appearance at his organization’s booth in the Agricultural Building. Barrett plans to gather signatures there in support of Killen, who is under investigation but has never faced state murder charges in the June 21, 1964, deaths of James Chaney, Andrew Goodman and Michael Schwerner.

“He can possibly sign autographs and meet the crowd,” said Barrett, whose booth will be between those for the secretary of state’s office and the Mississippi Library Commission.

Our long national nightmare, the Valerie Plame/Joe Wilson saga, may finally be nearing an end. The Kerry front organizations left wing of the blogosphere claims there’s an indictment of “Scooter” Libby on the way, while the Bush stooges InstaPundit (and the Washington Post) reports that Libby is cooperating with investigators by waiving his right of confidentiality in dealings with Time reporter Matthew Cooper.

Alex Knapp, Steven Taylor and Ted Barlow all agree that President Bush’s apparent call for regulation of all political speech is idiotic, although John Fund argues (somewhat, but not completely convincingly) that it’s the inevitable result of McCain-Feingold, while James Joyner notes that it’s not like the Bush campaign has changed its position on the 527 phenomenon lately.

I get the feeling my intro class is going to have a fun debate over campaign finance regulation and the first amendment; I just wonder what side I’m going to have to play devil’s advocate for.

Tyler Cowen, remarking on an NYT article on charging prison inmates for room and board, says

I'm not comfortable with this notion, since I don't think government prisons should move toward becoming profit centers.

That’s an understatement. If one is of a libertarian bent (as I am) with regard to victimless crimes such as drug use and prostitution, the problem would seem to be that imprisoning people doesn’t cost the government nearly enough. After all, the marginal prisoner is a lot more like Tommy Chong than Charles Manson.

From an economic point of view, the problem is that a huge portion of the cost of incarceration is borne by the person being incarcerated: which, of course, is the intent, for otherwise the threat of imprisonment wouldn’t have a disincentive effect on behaviors the state has prohibited. But since the full cost of imprisonment is not borne by the state, economics suggests that there will be too much of it.

Here’s my not-entirely-facetious* suggestion for getting government incentives right with regard to imprisonment. For each person the state imprisons, the state should hire, at whatever price the free market will bear, an innocent person who will be imprisoned under the same conditions for the same amount of time. (It need not be one single person for the full duration of the sentence. Presumably this job would have very high turnover.)

This way, the government will imprison someone only if the benefit to the government (which will be aligned to some degree with that of the public in a democracy) is greater than the cost, as determined by the free market, to the person being imprisoned.

Of course, there are other costs of imprisonment the state bears, such as maintaining buildings and hiring prison guards, so we would might end up with too little imprisonment under a such a one-for -one scheme. So perhaps the state should hire four innocents to be imprisoned for every five actual prisoners, or two for every three.

At any rate, the government would be a lot less cavalier about locking people up left and right under if it followed such a plan.