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Newsweek promotes Palin for President

The cover of next week’s Newsweek features a picture of Sarah Palin, along with the headline “How do you solve a problem like Sarah?” The cover is one more example of the periodical’s positioning itself as the ideas journal for people who think that the New York Times’ in-house editorials are middle-of-road, but have too many big words. And of the magazine’s cultural disconnect from much of the United States.

To wit: “How do you solve a problem like Maria?” is an early song in The Sound of Music, which won the 1965 Academy Award for Best Picture. In the song, several nuns at an abbey in the Austrian mountains summarize the problems with the novice Maria (Julie Andrews): Maria is too physically active, athletic and outdoorsy. She is too expressive emotionally, particularly about her happiness. She is flighty, and late for everything except meals. She has a good heart, but does not listen well to advice from her elders, and she is highly self-directed: “How do you catch a cloud and pin it down?” The harsh nun, Berthe, calls Maria “a headache” and “a demon.” Newsweek’s subhead take’s Berthe’s role, calling Palin “bad news for the GOP–and everyone else too.”

The Mother Superior knows better: Maria is no bad-news demon. Rather, Maria is someone who lives the Good News, and whose talents, energy, and will-power are going to waste in the abbey. So she ships Maria off to a job outside the abbey–a job for which Maria is totally unprepared, and a job at which Maria’s predecessors have failed. After a rough start, Maria becomes a great success, due to her common sense, kind heart, wisdom, and readiness to defy convention. In the process, Maria also stands up to foreign totalitarian aggressors (winning the support of even her staunch critic Berthe), fortifies the nationalist sentiments of her country against those aggressors, and leads the people in her care to safety and freedom.

Ergo, the question “How do you solve a problem like Sarah?’ provides its own answer, at least to people who know the film from which the song comes: Make her the President of the United States.

I’m not arguing for or against Palin for President–just observing that, as is so often the case, the Palin-hating media are less clever than they think, and end up inadvertently making her stronger.

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Categories: Media, Politics, Popular Culture     253 Comments
This week’s National Journal poll of political bloggers asked “Would Democrats be helped or hurt politically if Congress enacts health care reform legislation containing abortion restrictions similar to those passed by the House?” On the Left, 79% said “hurt,” while the Right was fairly closely split between “helped,” “hurt,” and “not much impact.” I voted for “hurt,” but thought it was a close call: “In pro-life districts, it’s a tremendous boon to Dems who voted for the Stupak amendment, proving to voters that the local Dems are not controlled by the party’s bicoastal pro-choice leaders. In pro-choice districts, however, Stupak’s effects on abortion coverage in private insurance may make a lot of people very unhappy. On the whole, a net loss for Dems because Stupak is a huge win for the pro-life side, which is a bad long-term sign for a party which, at the national level, is officially pro-choice.”

Question two was “In light of the off-year election results, what’s the bigger political priority for the Democratic/Republican Party right now?” Eighty-six percent of the Left said that motivating the base should be the biggest Democratic priority. Sixty-seven percent of the Right said that the biggest Republican priority should be winning independents. I volunteered the Republicans need to do both: “As C.S. Lewis once remarked about the faith vs. works debate: ‘It does seem to me like asking which blade in a pair of scissors is most necessary.’ Winning parties motivate their base and win independents — as McDonnell and Christie both did.”

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Categories: Politics     22 Comments
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Monday’s New York Times has an interesting article about the forthcoming English edition of Emmanuel Faye’s book Heidegger: The Introduction of Nazism into Philosophy in Light of the Unpublished Seminars of 1933–1935.  In brief, Faye argues that Heidegger’s pro-Nazi views were not incidental, but were at the core of his life’s work. Accordingly, suggests Faye, libraries should remove Heidegger books from the “Philosophy” section, and place them in the “History of Nazism” section. From what I know of Heidegger (he’s discussed in my forthcoming book Aiming for Liberty) his intellectual influence on the 20th century was highly pernicious. Heidegger, like Hitler, wrote books addressing the question of what it means to be a “German,” and came to similar conclusions. Both writers were verbose; Heidegger was superior in the fabrication of elaborate philosophical constructs, while inferior to his hero is writing comphrensibly. Given Heidegger’s own dedication to Hitlerism, it seems that Heidegger himself might have considered it appropriate for his books to be shelved next to Mein Kampf.

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Categories: Anti-Semitism     178 Comments
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Robert Wright’s BloggingHeadsTV is often the best place on the Web for highly intelligent conversation about politics and culture. Particularly excellent is a new episode, posted today, in which Wright interviews Bruce Feiler, author of the new book America’s Prophet, Moses and the American Story. Wright is a scholar of the history of religions, so the conversation is thoughtful, challenging, and enlightening. Wright finds himself astonished, by Feiler’s thesis, but admits that upon reading the evidence, it is irrefutable. As the book’s promotional material states:

The Exodus story is America’s story. Moses is our real founding father. The pilgrims quoted his story. Franklin and Jefferson proposed he appear on the U.S. seal. Washington and Lincoln were called his incarnations. The Statue of Liberty and Superman were molded in his image. Martin Luther King, Jr., invoked him the night before he died. Ronald Reagan and Barack Obama cited him as inspiration. For four hundred years, one figure inspired more Americans than any other. His name is Moses.

I will say that Feiler’s thesis is not at all startling to some of us who have studied religious rhetoric in American history. As when in 1858 Rabbi Isaac Mayer Wise, one of the founders of Reform Judaism in America, declared  that the American Independence Day was a second Passover: “the fourth of July tells us the glorious story of the second redemption of mankind from the hands of their oppressors, the second interposition of Providence in behalf of liberty, the second era of the redemption of mankind, the second triumph of right over might, justice over arbitrary despotism, personal and legal liberty over the power of the strongest and most warlike.”

When Benjamin Franklin and Thomas Jefferson were chosen by the Continental Congress in 1776 to design a Seal of the United States, both proposed an image of the Exodus. Adams described the picture: “Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh who is sitting in an open Chariot, a Crown on his Head and a Sword in his Hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity. Motto, Rebellion to Tyrants is Obedience to God.”

Second Amendment advocates had no trouble seeing the connection between the iconic images of Moses parting the Red Sea (in the film The Ten Commandments) with an upraised staff, and NRA President Charlton Heston proclaiming liberty throughout the land while holding high the Kentucky Rifle. Regardless of whether a viewer is inspired or annoyed by the juxtaposition, it’s another example of how, even in the 21st century, the story of Moses and the Exodus continues to play an important role in American public life.

Bruce Feiler
America’s Prophet, Moses and the American Stor

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Categories: Guns, Israel, Religion     31 Comments
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Last week, I was interviewed by Radio Free Europe’s Russian-language station about the 30th anniversary of the Iranian seizure of American diplomatic hostages in Tehran. The transcript, in Russian, is here. For the fraction of VC readers who do not read Russian (a fraction that is smaller than almost any other U.S. law/policy weblog), here’s a summary of my key points: The hostage crisis initially helped President Carter fend off a primary challenge from Sen. Ted Kennedy, as Carter stayed in the White House attending to the issue. However, as the kidnapping wore on, Carter’s weakness became increasingly evident to the American people; it was observed that Soviet government diplomat do not get seized, because everyone realized that the Soviets would respond forcefully. Accordingly, one result of the hostage crisis was the election of Ronald Reagan. (Who of course later made his own terrible mistakes in thinking that he could establish a working relationship with the Iranian tyrants.) Today, Iran is still ruled by tyrants who hate the West in general, and the U.S. in particular, and the West has new leaders who, like many of their predecessors, cling to the vain hope that the Iranian regime can be pacified by concessions. The world’s largest exporter of terrorism, the Iranian regime aims to  dominate the Near East and the Muslim world. With nuclear weapons, the the Iranian regime threatens the whole civilized world. Everything would be different if the Khomeni revolution had been stopped at the very beginning. The longer that regime change in Iranian is delayed, the worse for everyone.

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Categories: Russia, Terrorism, War on Terror     29 Comments
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In last week’s National Journal of political bloggers, one question asked: “If unemployment remains at roughly the current level, what impact will that have on the 2010 midterm elections?” One hundred percent of the Right, and 89 percent of the Left bloggers thought it would hurt Democrats, and most thought it would hurt them a lot. I agreed: “It’s easy to imagine the Republican campaign ads which show the Democratic charts predicting how bad unemployment would get without the stimulus — juxtaposed with how much worse unemployment actually got after the Democrats’ deficit spending spree was adopted.”

For the other question, both Left and Right reversed their positions from last June. Sixty-five percent of the Left now think it is “somewhat likely” that Congress will pass Cap & Trade. Sixty-five percent of the Right now thinks passage is “very” or “somewhat” unlikely. So both Left and Right have become more optimistic in the past few years. Objective proof that “hope” is on the rise.

I was in the minority of the Right who thought C/T somewhat likely: “The bill will see lots of ‘no’ votes from Blue Dogs and from other Democrats who represent energy-producing states. But there may be enough support from urban/suburban Republicans for something to pass.” Certainly a C/T bill that included lots of the ideas which John McCain has proposed, and which greatly cut back on the rent-sales that appear in the House-passed bill, the bill would be nearly unstoppable.

 

Last month in Massachusetts, my father, Jerry Kopel, received the Soviet Jewry Freedom Award from the Russian Jewish Community Foundation. He was honored along with his fellow former legislator, Tilman Bishop. (Bishop is now an elected Regent of the University of Colorado. He is a conservative Republican from Grand Junction; my father is a liberal Denver Democrat.) In 1979, my father and Bishop created the Committee to Free the Leningrad Three; these were Jewish and Christian refuseniks who had attempted to flee the Soviet Union in 1970. They were part of a group of 10 which bought all the seats on a small charter plane, and planned to overpower the pilot and escape to Scandanavia. Their plot was thwarted at the airport, before they ever boarded the plane. The group was known as the “samoletchiks”–airplane guys. By 1980, 7 of the 10 had been released due to international pressure. Five of them were part of a swap involving some captured Soviet spies; the other two had completed their prison terms. 

Thanks to the Committee to Free the Leningrand Three, the remaining three were all released by 1985.

In a recent column, my father explained some of the Committee’s unusual tactics. First, they did not adopt the standard legislative approach of merely getting a resolution adopted. A resolution is a one-time thing, but the Committee aimed for continuing pressure. Colorado legislators were invited to join the Committee, which eventually comprised 95 of Colorado’s 100 state representatives and senators. Every member was required to write personal letters, not form letters, to the Soviet authorities, and to the prisoners. Bishop (who started in the House, and then went on to a long tenure in the Senate)  made sure the Committee members kept up the writing.

More information about the samoletchiks and the campaign to free them can be found in recent articles in the Boston Globe  and in the Intermountain Jewish News.

State and local officials who want to support international human rights often have a difficult time finding ways to act effictively without running into conflicts with the federal government’s primary role in foreign relations. The Committee to Free the Leningrad Three provides a good model for constructive local action with global consequences. Today, there are many prisoners of conscience around the world who could be saved by state and local American government activism.

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Categories: Communism, Russia     5 Comments
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UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.

 

Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member’s bill  (by Candice  Hoeppner of Portage—Lisgar, Manitoba) to repeal Canada’s failed and extremely expensive long gun registry.

Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser’s journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.

For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.

Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.

If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.

You can follow a webcast of the House of Commons by going here.

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Categories: Canada, Registration     142 Comments
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NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.

In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent. The House of Delegates already had a fairly solid pro-Second Amendment majority, so the major change in Virginia is a new Governor who, like  former Governor and current Senator Mark Warner (Dem.), will sign rights-enhancing legislation passed by the legislature.

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The  New Jersey Assembly appears to be unchanged.

In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia.

 

Categories: Guns, Politics     55 Comments
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Reversing the position of the Bush administration, the Obama administration recently announced support for the global Arms Trade Treaty (ATT), which is currently being drafted by the United Nations. The leading voices for the ATT are the International Action Network on Small Arms (IANSA, funded by George Soros, and run by the Open Society’s former gun control executive, Rebecca Peters) and the IANSA spin-off  “Control Arms.” Proponents of the ATT promise that it will impose effective arms on embargos on human rights violators. In a forthcoming article in the Penn State Law ReviewThe Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators, Paul Gallant, Joanne Eisen and I examine the issue. Our article shows that if the ATT were to be implemented as its proponents promise (to proactively embargo arms where there are serious risks of instability), there would have to be dozens of new embargos. Because small arms manufacture is already widespread, and is not technologically complex, most targets of new embargos would be able to manufacture firearms domestically. 

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by the Security Council. But the embargo has been violated by smuggling conducted by most of the nations which border the DRC, and even by UN “peacekeepers” in the DRC. Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a “right” of governments to acquire arms. This “right” could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.

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This week’s National Journal poll of political bloggers asked “What will be the top two issues in the midterm elections?” Enormous majorities on both the Left and the Right picked “Economy/jobs” as the expected top issue. On the Left, “health care reform” came in second, far ahead of the third-place “deficit/big government.” The issues of Afghanistan and Cap & Trade were very far behind. The picks on the Right were similar, expect that “deficit/government” was the choice for 2d place, with health care in third.

I wrote: “All these will be big, but the ballooning deficit and the unemployment rate will probably be of interest to the largest number of voters. Afghanistan/cap-and-trade/health care will probably motivate lots of base activists from both sides.”

The second question was “On balance, does the White House’s decision to take on Fox News help or hurt President Obama?” Eighty-seven percent of the Left, but only 18% of the Right thought it helped. I was among them: “It turns out that all those folks with ‘dissent is patriotic’ bumper stickers who worried about the president trying to shut down criticism were just a little ahead of their time. Obama’s stature is diminished in the short run, but Fox’s reporting is so harmful to the WH (Van Jones, Anita Dunn, etc.) that they may have figured some short-term cost is worth it if they can convince the more pliant folks in the MSM not to follow up those stories.”

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Fat acceptance in NJ Governor Race

The Fat Acceptance Movement may have a new hero. Tubby Republican nominee Chris Christie is now pushing back against imperially thin Democratic Governor Jon Corzine’s campaign theme making fun of Christie’s heft. Christie criticizes Corzine for his recent, implausible, assertions that Corzine never raised the weight issue: “If you’re going to do it, at least man up and say I’m fat...Afterwards he wusses out and says ‘no, no, no. I didn’t mean that I don’t know what you’re talking about.’ Man up. If you say I’m fat, I’m fat. Let’s go. Let’s talk about it.” Asked if a governor needs to set a good example, Christie retorts, “I am setting an example...We have to spur our economy. Dunkin Donuts, International House of Pancakes, those people need to work too.”

Smart move by Christie, since his sense of humor about himself softens his prosecutorial image (which independent candidate Chris Daggett has exploited in TV commercials) as an angry guy whose solution to everything is putting somebody in prison. For the still-undecided voters (a group which tends to be ill-informed about politics), Christie’s quips show him as a guy who knows who he is, and who does not take himself overly seriously, who admits his own weaknesses, and who has a sense of humor.

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Categories: Politics, Popular Culture     35 Comments
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Last week’s National Journal poll of political bloggers asked Left/Right bloggers “Are [Democratic/Republican] leaders doing enough to police congressional ethics enforcement in their ranks?”  On the Left, 56% said the Democrats were not doing enough, and 60% of the Right said Republicans were not doing enough. I was among the “no” votes for Republicans, writing that “They have fewer opportunities for corruption now that they’re the minority, but I don’t see any evidence of a fundamental change in self-policing.”

Question 2 asked “Could you see yourself supporting a cap-and-trade bill if it included significant incentives for nuclear energy?” On the Left, 61% said yes. On the Right, I was the only one who said yes. I reasoned, “The last 10 years of real-world climate data have shown that the professional hysterics and their predictions are wrong. However, the last 10 years have also demonstrated the growing dangers of U.S. energy dependence on dictatorships like Venezuela and Saudi Arabia. So it’s possible (but unlikely) that a C&T bill with a strong nuclear energy component might significantly reduce U.S. dependence on dictators’ oil, and therefore be worth supporting for national security reasons.” I do realize the nukes in themselves are not the answer to foreign oil dependence, since only a small percentage of our electricity comes from imported oil. But it’s still possible (albeit very unlikely) that a C&T bill could do a great deal to reduce American dependence on dictator oil.

The October 9 poll (which I didn’t post about at the time) asked, “If major health care legislation clears Congress this year, will it include a public option?” Seventy-two percent of the Left and 57% of the right said it would. I was in the majority: ““If one presumes that the bill will pass, near-unanimous support will be needed from the Dems’ left wing. They will figure out some new euphemism for the government-run program, to attempt to provide plausible deniability for moderate Dems.”

The other question “If unemployment continues to rise, should Congress pass another stimulus package?” Eighty-nine percent of the Left thought so, while 93% of the Right disagreed, including me: “The ‘stimulus’ is like a guy who is nearly broke from credit card debt deciding to cheer himself up by getting a new credit card and running up even more debt.”

 


Pretend “Gun-Free” School Zones: A Deadly Legal Fiction

That’s the title of my forthcoming article in the Connecticut Law Review; a revised version is now available. The article suggests that, under Heller, bans on guns at schools are constitutional. However, as a policy matter, gun prohibition on campuses turns them into targets for criminals, particularly mass killers. The response of anti-gun groups is to warn about the dangers of 18-year-olds carrying AK-47 rifles to keggers. For the record, I do not think that anyone should take an AK-47 (or any other gun) to a kegger. However, there are sensible policies that avoid the dangerous extremes of creating a cluster of thousands of defenseless victims, or teenagers bringing machine guns to keggers. For example, adult employees of the school who already have been issued concealed carry licenses by the state should not be barred from licensed carry while on campus. A professor at a medical school who lawfully carries a licensed concealed handgun throughout the state is not going to suddenly turn into a violent criminal if he also carries while on campus. 

Categories: Academia, Guns

22 Comments


Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created  a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift”  is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of  “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.” It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, “Within 60 days after accepting a tangible gift of more than minimal value,...an employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use.” Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.

 UPDATE: One disadvantage of VC’s new platform is that we can no longer award the coveted Green Border to especially good comments. Such honor is due to the commenter who brought up 5 C.F.R. sec. 2635.204(d). This is part of a regulation covering all gifts received by federal employees–not just gifts covered by the Constitution’s requirement of Congressional approval of gifts from foreign princes. The relevant portion of the regulation states that a federal employee can keep money from an achievement prize he is awarded, if the award is given regularly according to written standards. An example in the regulation is “an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

I don’t think this regulation helps Obama, although, as I explained above, the statute provides him with all he needs. First, keeping the prize money is allowed only if the prize is awarded “by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” As has been widely discussed on the Internet, the Norwegian committee is obviously trying to influence U.S. foreign policy in a particular direction, and is making the award in part to further those interests. Second, the Nobel Prize for Medicine is awarded by an institute affiliated with a Swedish university hospital.  This is very different from the Peace Prize committee, which is picked by the Norwegian Parliament. Alternatively, if the Institute counts as a Swedish government agent because the Swedish government owns the hospital (I don’t know if they do), then the example in the regulation is wrong. A regulation cannot over-ride a statute or the Constitution. The Constitution requires congressional permission; the statute provides congressional permission in certain circumstances. The executive branch, by writing a regulation for itself, cannot expand the scope of the congressional permission.

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Categories: Executive Branch

Legal Scholarship in the Internet Age

That was the subject of a recent symposium at Denver University’s law school. The DU Law Review’s online publication, DUProcess, published several short articles on the topic.  I wrote on Connecting Laypeople with the Law Through Blogs, and began: “Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.” I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter’s VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French.  After hundreds of years, the legal language had turned into something called “law French,” which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French.  In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above.  One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago.  By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU’s joint faculty-student blog on corporate governance.

If you’re interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson’s book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book’s ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

Categories: Academia, Internet, Law schools, Legal professor


This spring I will be adjunct teaching at Denver University, Sturm College of Law. The course is “Advanced Topics in Constitutional Law: Fourteenth and Second Amendments.” The course will be mainly 14th Amendment, plus some Second Amendment (which is happens to be a good topic with which to study 14th Amendment original intent/meaning and incorporation), plus shorter treatment of the rights in Article I, sections 9–10; Article IV Privileges & Immunities, 9th Amendment, and 13th Amendment. The course is for second and third year students, who have already had a 1st-year constitutional law class, which was mostly about constitutional structure (commerce clause, separation of powers, etc.). One textbook will be Gun Control & Gun Rights, which I co-authored for NYU Press in 1999. For the main casebook, I am undecided, but leaning strongly towards Randy Barnett’s. Please supply comments about Con Law textbooks which you have used, and their various virtues and flaws. Of course I am especially interested in the pro/con user experience for the Barnett book.

Categories: Uncategorized


That’s the title of my new book, scheduled for publication December 4. It’s now available for pre-order on Amazon.com and Barnes & Noble. In an 11-minute podcast on iVoices.org, Jon Caldara and I discuss the book. It’s a collection of essays on firearms law and policy, and many other liberty issues and heroes. Topics are as old as ancient Israel and Rome, and as new as the United Nations gun control efforts and post-post-modernism.

Categories: Uncategorized


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