WHAT? I just don't get the newest addition to the Conspiracy.

Cramer's response to Philippe's post leaves a lot to be desired:

First, he ought to ask Justice Scalia about the problems ascertaining original intent.

Second, his response to the "unappetizing conclusions" point is wholly inadequate. Cookbook 14th Amendment law (the same subsequent amendment that renders the founders' views on race relations "moot") tells us that the rights which the founders announced in the Bill of Rights as against federal power now apply against the states. Applying this to the First Amendment, as originally understood, would lead to chaos. The First Amendment was meant to protect state-sponsored churches against the possibility of a national-sponsored church. It clearly means "hands off" religious practices and "no compulsion" for religion. How can we apply that to the states in any coherent manner without abandoning its original purposes?

Third, it's worth noting that even Supreme Court justices who otherwise appear to be sympathetic to Cramer's views (as to the application of "original intent" and as to whether "God" in the pledge is constitutional) must retreat to ceremonial deism. They would get laughed out of conference if they offered a string of quotes from founders.


Finally, on an unrelated note, I thought Cramer's post on comparative risks of death was disgusting. In order to "prove" his "courage," Cramer took the death rate for the least costly (in terms of human lives) major war we have ever fought. Before he breaks his arm patting himself on the back, he ought to consider what our servicemen in World Wars I and II, Korea and Vietnam faced.

Am I wrong? Tell me why: rule11 and then the -at- sign hotmail.com

PRODUCT DILUTION? I'm all for the Volokh Conspiracy adding more conspirators; it makes browsing the web easier. But Eugene might want to rethink his last addition, Clayton Cramer. Messr. Cramer may know a lot about history, and gun history, specifically, but his legal arguments leave a bit to be desired.

Actually, much more than a bit. His "explanation" of why "under God" is consistent with the Constitution reads like an 11th-grade American history report. And it misses the point: whatever interpretation of the First Amendment (and the Establishment Clause in particular) one wishes to adopt today, precedent has been almost completely divorced from the Amendment's history (with the full blessings, I might add, of even the most conservative justices).

I don't have time now (gotta go to work) but will try to elaborate later. In the meantime, if you're interested, ask Eugene he would treat that argument if someone turned it in on a First Amendment exam.

HILARIOUS. Read Jack Balkin's take on Justice Scalia's affirmative action stance immediately.

DICK CHENEY MEETS THE PRESS. Vice President Cheney spoke with Tim Russert this morning. Among the things this so-called foreign policy maven said:

"That [after 9-11] the President has had to come to grips with situations that our allies haven’t had to face [i.e., terrorism.] . . . The rest of the world hasn’t had to come to grips with that, yet." Hello? Our allies have never dealt with terror before? He might want to ask his friend Prime Minister Thatcher about that one. Or the Germans. The Greeks. The Italians. The French. The Russians. The Israelis. The historical ignorance --and the arrogance-- of this statement is stunning. Yes, 9-11 was a far more terrible attack than most of these nations suffered, but most of them have been suffering under the threat of domestic terorrism since the 1970s.

"Consensus of the what the major threats are . . . disappeared at the end of the cold war." Except that it didn’t. Our war on terorrism has almost unanimous support among all nations in the world.

Vice President Cheney described the Bush Doctrine as attributing to any host or sponsor state the terrorist acts of groups based there, and respond accordingly. The irony, of course, is that under that description, Iraq is pratically the only country in the region that doesn't deserve immediate retaliation.

Finally, did Grover Norquist piss the administration off recently? Because today, Vice President Cheney oh-so-casually accused President Reagan as being soft of terrorism.