Over at the Volokh Conspiracy, Eugene Volokh is blogging up a storm (started here, continued here and here) about why increased government prosecution of pornographers will not result in a decreased consumption of porn by Americans, unless it is accompanied by even more intrusive measures. He writes:

So here's what I wonder about the Justice Department's planned new obscenity crackdown. As we know, there's lots of porn of all varieties out there on the Internet. I don't know how much of it is produced in the U.S., but even if it's 80%, and every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack?

...

So we have two possible outcomes:

1. The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using exactly the same amount of porn as before. Only potential benefit: If you really think that the porn industry is very bad for its actors, you're at least sparing Americans that harm, and shifting it off-shore instead. Other than that: Investment of major prosecutorial resources yields a net benefit of zero.

2. The government gets understandably outraged by the "foreign smut loophole." "Given all the millions that we've invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?" So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

I agree with Professor Volokh that agressive obscenity prosecutions are both a bad idea from a civil liberties standpoint, and unlikely to make it significantly more difficult for those who are so inclined to obtain pornography. Nevertheless, I think there is one objective that they may be (at least temporarily) successful in attaining: halting the entrance of hardcore pornography into mainstream culture.

While pornography was once considered the exclusive domain of sleazy XXX outlets where men either kept their hats pulled low over their eyes, or ordered wares that arrived in discreet brown paper wrapping, pornography has cleaned up its image in the past decade. The pornography business has been the subject of TV shows, and a billboard advertising the oeuvre of porn star Jenna Jameson appears in the new, family-friendly Times Square. Meanwhile, stores like Toys in Babeland and Good Vibrations market pornography to women in a sleaze-free environment, and sex columnists like Dan Savage and Tristan Taormino encourage sexual experimentation and pornography as part of a normal, healthy relationship. Feminist anti-pornography campaigns (in the style of Catherine MacKinnon and Andrea Dworkin) seem hopelessly outmoded, as more pornography is produced to appeal to women, and porn stars discuss their work and why they see it as explicitly feminist. What was once taboo is becoming as accepted as Playboy.

While obscenity prosecutions will never shut down the porn industry, they can tarnish the aura of legitimacy that has developed around it. When pornography is a route to fame, fortune, and legitimate movie stardom (Ron Jeremy, anyone?) it seems exciting and glamorous. When it is instead a route to public prosecution and jail time, it seems sleazy, seedy, and suspect. And what many moral majoritarians worry about is not so much the occurrance of sin in their neighborhoods as the glamorization of sin in their culture.

So long as pornography remains the bastard cousin of Hollywood moviedom, something one does not discuss in polite company, it is easy to keep believing that consumers of porn are somehow fundamentally different from one's friends and neighbors--and more importantly for many, the friends of one's children. But if porn is something that respectable people consume, then it is harder to stigmatize, and harder to protect one's children from exposure.

A criminal trial seems almost designed for the purpose of stigmatizing and humiliating the defendants. The handcuffs, (or even better--the orange jumpsuits), the perp walk, the mug shot, the public airing of dirty laundry ranging from domestic quarrels to catty comments--whose life could appear completely admirable under such intense scrutiny? The goal, I suspect, is not to stop the production of porn, but to inculcate in the industry a proper sense of shame at their chosen profession.

This is not, I think, a healthy goal. I would much rather not see pornography operating at the margins of society. With no respectability to lose, there is much less incentive for pornographers to be scrupulously careful about such matters as drugs, condoms, and general good taste. (And no, I don't think it is incongruous to talk about good taste with relation to pornography.) I have much more confidence that no actual women were exploited in any sort of meaningful way in the production of a pornographic film when the production company in question has a reputation to lose.

Milbarge at Begging the Question has an odd challenge for originalists:

Is there anything that an originalist interpretation of the constitution tells you is constitutional, but that you're against anyway, say as a matter of policy, or that you'd vote against as a legislator?

Professor Bainbridge is asking for participants in a poll that questions the correct spelling of decisionmaking. Is it (1) decisionmaking; (2) decision-making; or (3) decision making. This is a question I'm actually quite fascinated and frustrated by, being that much of my research focuses on decisionmaking and I'm constantly running across the word spelled each way. Professor Bainbridge notes that his preferred spelling is "decisionmaking," which I obviously agree with, though he notes that spelling the word this way "seems to drive law review editors batty." I haven't a clue why this should be the case, but it is surely true. From readings, my impression is that "decision making" has been largely discredited as the appropriate spelling though it still appears from time to time. Using the hyphen seems to be the preferred form currently, but I am hopeful that the small but growing number who use the combined form will prevail soon.

Below, Amy casts about for a benevolent patron to bestow theater tickets upon her. I can note only that I saw this production of Jumpers when it was in London and it is indeed very good-- especially because Jumpers has always been (in my opinion) one of Stoppard's more underrated plays, and it deals extensively with one of the 20th-century's more underrated philosophies (logical positivist).

However, I still believe that for those who aren't extremely quick, as well as well-read in the works of, say, A.J. Ayer, the play is likely to be more than a trifle confusing. So if you do see Jumpers, which you should, read either the play (the easy way out) or Language, Truth, and Logic, before going.

Those of you who have seen or read Fight Club (this being a rare occasion of a movie being better than a nontheless-quite-good book) know that human fat can be turned into soap.

Apparently after Nat Turner's rebellion, he was hung hanged, burned, and then mixed with lye and sold-- yes-- as souvenir soap. Such was Professor Hutchinson's claim in class today. Anybody who can provide documentation or refutation of this claim, please pass it along.

At yesterday’s lecture, Professor Hutchinson offered that in order for the courts to gain the power to knock down de facto non-integration in many school districts, the courts would have to find a way around Pierce v. Society of the Sisters (1925). The case is commonly cited as the right to send one’s children to a private school. Do not let the name throw you: it was decided under the 14th Amendment’s liberty rights, not the 1st Amendment’s free exercise rights. Hutchinson said that that Pierce could not be supported on originalist grounds.

Even without an affirmative right to send one’s children to private schools, it seems likely that they would still exist in many areas of the country. Pierce had come out of the progressive northwest. Urban areas of the country where a private education was a status symbol among the wealthy, more prominently religious areas where a Catholic education was the mark of a Catholic (and that was not a black mark in society), and states that did not yet have taxpayer-supported schools (such as the South after the Civil War) would still have found votes in favor of allowing private educations to fulfill compulsory education laws. The pre-Brown picture would be unchanged: black (mainly public) schools, white public schools, white private schools. The difference lies in the remedies open to the courts.

McReynolds wrote the opinion in Pierce, drawing heavily in his holding on an opinion he wrote two years earlier, in Meyer v. Nebraska (holding unconstitutional an act that forbade the teaching of foreign languages to students in eighth grade or younger). In that case, he located educational liberties within the “privileges long recognized at common law as essential to the orderly pursuit of happiness by free men,” thus granting it a decent amount of protection: “The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.”

Brown was also a Fourteenth Amendment decision. If the courts only had Meyer to deal with, then I think there’s room for interfering with Reynolds’s broadly-drawn educational liberties. The case could easily be construed narrowly as forbidding the state to strike certain educational topics from the curriculum. Even without that, the Meyer holding opened a balancing test for when educational choice would lose to other state interests. Race gets strict scrutiny. The Supreme Court could have simply ranked compliance with Brown as more important, allowing states’ preferences for where children should attend schools to outweigh the parents’ preferences (there is still the enforcement problem, but Congress eventually solved that by withholding school funds. Perhaps, though, they wouldn’t have been so stringent had the Court wielded such power over school assignments).

Bear in mind, I don’t actually think that would have happened. If the refuge into a private education were threatened and the courts hadn’t previously decided cases dealing with religious K-12 educations, I would expect anti-integrationists to push for private schools to become more openly religious in their missions, then to bring a free exercise of religion claim. Granted, it’s easier to see how kosher Orthodox Jews might be able to point to incompatibilities between their religious requirements and common American schools, but with a bit of ingenuity and emphasis on Protestant theology and the lives of the saints, I’m sure the Methodists, Catholics, and other religious schools could have been justified by a sufficiently motivated advocate. And there is always the refuge of the suburbs, as Professor Hutchinson also noted. I don’t know how that can be made illegal.

More quotes from the cases:
Pierce:

Under the doctrine of Meyer v. Nebraska , we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. (internal cites removed)

Meyer:

The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment:

'No state ... shall deprive any person of life, liberty or property without due process of law.'

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.
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Today's NY Times has a very interesting article about the title characters in Tom Stoppard's play Jumpers--"the Incredible Radical Liberal Jumpers, an eight-man gymnastics team made up of middle-aged philosophy professors."

Incidentally, if anyone in New York happens to have a spare ticket to this production of Jumpers (which received rave reviews during its run in London) and happens to be looking for a charming, intelligent, blogging theater companion, I'd be happy to volunteer my services.