Sometime this fall, two of the five votes that made up the Lopez and Morrison majorities will have been replaced. Only Justice Clarence Thomas will be left from the three Raich dissenters. As the new chief justice (assuming he is confirmed), will John Roberts assume the role of his mentor William Rehnquist -- for whom he clerked -- and lead the Roberts Court to enforce the Constitution's original plan of limited federal power? Will President Bush now look for a nominee to replace Justice O'Connor who is as committed to the New Federalism as she was? Given that so many of the New Federalism cases were 5-4, if either of the new justices adopts the mantra of "judicial deference" to congressional power, then Chief Justice Rehnquist's death, along with Justice O'Connor's retirement, may presage the second death of federalism. A judicial withdrawal from enforcing the original limits on the powers of Congress would undo the New Federalist legacy of William Rehnquist.

As the president now decides who next to nominate, he would uphold the Constitution by selecting a person with a firm and demonstrated commitment to the Rehnquist Court's New Federalism legacy. Only such a choice would continue the movement to restore the "first principles" of constitutionally limited government that William Rehnquist affirmed so eloquently. One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. . . . [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.

The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

The records reveal the following facts:

A 27-year-old Iraqi male died while being interrogated by Navy Seals on April 5, 2004, in Mosul, Iraq. During his confinement he was hooded, flex-cuffed, sleep deprived and subjected to hot and cold environmental conditions, including the use of cold water on his body and hood. The exact cause of death was “undetermined” although the autopsy stated that hypothermia may have contributed to his death. Notes say he “struggled/ interrogated/ died sleeping.” Some facts relating to this case have been previously reported. (In April 2003, Secretary Rumsfeld authorized the use of “environmental manipulation” as an interrogation technique in Guantánamo Bay. In September 2003, Lt. Gen. Sanchez also authorized
this technique for use in Iraq. Although Lt. Gen. Sanchez later rescinded
the September 2003 techniques, he authorized “changes in environmental quality”
in October 2003.)

An Iraqi detainee (also described as a white male) died on January 9, 2004, in Al Asad, Iraq, while being interrogated by “OGA.” He was standing, shackled to the top of a door frame with a gag in his mouth at the time he died. The cause of death was asphyxia and blunt force injuries. Notes summarizing the autopsies record the circumstances of death as “Q by OGA, gagged in standing restraint.” (Facts in the autopsy report appear to match the previously reported case of Abdul Jaleel.)

A detainee was smothered to death during an interrogation by Military Intelligence on November 26, 2003, in Al Qaim, Iraq. A previously released autopsy report, that appears to be of General Mowhoush, lists “asphyxia due to smothering and chest compression” as the cause of death and cites bruises from the impact with a blunt object. New documents specifically record the circumstances of death as “Q by MI, died during interrogation.”

A detainee at Abu Ghraib Prison, captured by Navy Seal Team number seven, died on November 4, 2003, during an interrogation by Navy Seals and “OGA.” A previously released autopsy report, that appears to be of Manadel Al Jamadi, shows that the cause of his death was “blunt force injury complicated by compromised respiration.” New documents specifically record the circumstances of death as “Q by OGA and NSWT died during interrogation.”

An Afghan civilian died from “multiple blunt force injuries to head, torso and extremities” on November 6, 2003, at a Forward Operating Base in Helmand Province, Afghanistan. (Facts in the autopsy report appear to match the previously reported case of Abdul Wahid.)A 52-year-old male Iraqi was strangled to death at the Whitehorse detainment facility on June 6, 2003, in Nasiriyah, Iraq. His autopsy also revealed bone and rib fractures, and multiple bruises on his body. (Facts in the autopsy report appear to match the previously reported case of Nagm Sadoon Hatab.)

Prior to the Persian Gulf War, Iraq had one of the highest standards of living in the Arab world. The Iraqi government had invested heavily in social and economic development, both before and during the Iran-Iraq war. Prior to the Gulf War, Iraq had made impressive strides in health, education, and development of the infrastructure. In 1980, the Iraqi government initiated a program to reduce infant and child mortality rates by more than half within ten years. The result was a rapid and steady decline in childhood mortality. Prior to the Gulf War, there was good vaccination coverage; the majority of women received some assistance from trained health professionals during delivery; the majority of the adult population was literate; there was nearly universal access to primary school education; the vast majority of households had access to safe water and electricity; and there was a marked decline in infant mortality rate, and in the under-five mortality rate. According to the World Health Organization (WHO), ninety percent of the population had access to safe water.

In the fall of 1999, a Defense Intelligence Agency (DIA) memorandum entitled, “Iraq Water Treatment Vulnerabilities” was declassified. The January 18, 1991 document focused on how the impending air war would undermine Iraq’s infrastructure:

1. Iraq depends on importing specialized equipment and somechemicals to purify its water supply, most of which is heavily mineralized and frequently brackish to saline.

2. With no domestic sources of both water treatment replacementparts, Iraq may continue attempts to circumvent United Nationssanctions to import these vital commodities.

3. Failing to secure supplies will result in a shortage of puredrinking water for much of the population. This could lead toincreased incidences, if not epidemics, of disease and to certainpure-water-dependent industries becoming incapacitated, including . . pharmaceuticals and food processing . . .

4. Although Iraq is already experiencing a loss of water treatment capability, it probably will take at least six months (to June 1991) before the system is fully degraded.

5. Unless water treatment supplies are exempted from the UN sanctions for humanitarian reasons, no adequate solution exists forIraq’s water purification dilemma, since no suitable alternatives,including looting supplies from Kuwait, sufficiently meet Iraqi needs. . . .

.. . .11. Iraq’s rivers also contain biological materials, pollutants, andare laden with bacteria. Unless the water is purified with chlorine, epidemics of such diseases as cholera, hepatitis, and typhoid could occur. . .

. . . .14. . . . Recent reports indicate the chlorine supply is critically low. Its importation has been embargoed, and both main productionplants either had been shut down for a time or have beenproducing minimal outputs because of the lack of importedchemicals and the inability to replace parts. . .

. . . .20. Iraqi alternatives. Iraq could try convincing the United Nations or individual countries to exempt water treatment supplies from sanctions for humanitarian reasons. It probably also is attempting to purchase supplies by using some sympathetic countries as fronts. If such attempts fail, Iraqi alternatives are not adequate fortheir national requirements.

21. Various Iraqi industries have water treatment chemicals and equipment on hand if they have not already been consumed orbroken. Iraq possibly could cannibalize parts or entire systemsfrom power to higher priority plants, as well as divert chemicals, such as chlorine. However, this capacity would be limited and temporary.

Thus, the DIA anticipated not only the damage to the infrastructureand water system, but anticipated as well that Iraq would be unable to takeeffective measures to provide potable water afterward. The DIAthen anticipated the epidemics and loss of life that would follow.

There all ready seems to be a problem in attempting to infer characteristics about an undefined population, named "conservatives" for rhetorical power. Thus, my cheeky title of "how the door hit conservatives on the way out"--in the the vein of all the recent "How X Did Y" or "How X Succeeds and When Y Fails" titles now ubiquitous in bookstores--is amusing precisely because we don't know who the conservatives are, where they are leaving from, and why they are leaving (i.e. whether its voluntary or involuntary).

Althouse, not needing to define or operationalize her concepts, continues: "Tierney rejects all of that, and blames the disparity on 'the structure of academia, where decisions about hiring are made by small independent groups of scholars'," and begins quoting Tierney who wrote:

They're subject to the law of group polarization, derived from studies of juries and other groups.

"If people are engaged in deliberation with like-minded others, they end up more confident, more homogenous and more extreme in their beliefs," said Cass Sunstein, a law professor at the University of Chicago. "If you have an English or history department that leans left, their interactions will push them further left."

Once liberals dominate a department, they can increase their majority by voting to award tenure to like-minded scholars. As liberals dominate a field, conservatives' work comes to be seen as fringe scholarship.

There seems to be another immediate problem here (besides the small factor of not knowing really who were are talking about). Liberals apparently, a priori, decide that a fellow faculty member's research sucks because of political affiliation? That's a big charge from the conservative wing who could usually be counted on to say that hiring ought to be based on the merits of a candidate and not any particular group characteristic. There seems to be four factors wrong in asserting that conservatives are being discriminated against per se. One, there does not seem to be a large pool of "conservative" applicants who are denied tenure whom can point out discrimination in the hiring process, or that the reasonably informed observer can identify. Systematic discrimination is by definition very observable. Segregation was not a contested claim, it was an easily observable fact of life. We could see actual discrimination there. Two, the argument seems to lack specificity about which universities are discriminating against conservatives. Are we talking about a correlation between faculty denied tenure at Princeton and voting affiliation? This is important to specify because some institutions, like Princeton, traditionally don't grant tenure to that many people, conservative or not. In fact, many of the top political scientists in the field now, somewhere between 20 and 40 percent, were denied tenure at their first university. Three, there is no specification about which fields these decisions are being made in. The honest to goodness truth is that in some academic fields the job market sucks. Four, this doesn't include how cordial and chummy the supposed conservative is with his or her colleagues. Did the person make meager ideological difference an uncomfortable issue with some of the faculty? That seems to be relevant if one is being given a job for life.

Ann contextualizes her own criticism and demonstrates her dearth of knowledge concerning academia when she self-righteously concludes: "That sounds accurate to me. Tierney concludes that the phenomenon ultimately hurts liberals in the political sphere because they can't draw on the ideas of liberals in academia, who have veered too far left to produce ideas that are appealing to American voters." Can I get a show of hands for people who believe that academics outside of policy studies and the social sciences are attempting to "produce ideas that are appealing to American voters"? I'm sure that the history of Kenya, or, of religious practices in an Indonesian village are aimed at the American electorate. Thanks, Ann. Don't let the door hit you on the way out.

Steven Bainbridge, actually being a law professor, has something intelligent to add. Bainbridge writes:

In my experience, it thus is a lot harder to get somebody hired than it is to block them from being hired. The process isn't as explicit as the blackballing scene in Animal House, but the law school hiring process is just as weighted against hiring. (And I mean hiring anybody, regardless of political affiliation.) Any opposition (for whatever reason) therefore is usually enough, absent a very strongly committed pro-hiring faction. In most cases, a candidate's best chance of surviving the winnowing process is for someone on the committee to become the candidate's champion. The champion will pull the candidate's resume out of the slush pile and make sure it gets flagged for close review. Because most law schools lack a critical mass of libertarian and conservative faculty members, however, there is nobody predisposed to pulling conservative candidates' AALS forms out of the slush pile (and a fair number of folks inclined, whether consciously or subconsciously, to bury them) Applicants with conservative lines on their resume -- an Olin fellowship, Federalist Society membership, or, heaven help you, a Scalia clerkship -- thus tend to be passed over no matter how sterling the rest of their credentials may be. In contrast, the latest left-leaning prodigy from Harvard or Yale has a mentor at one of those schools who makes calls to his/her buddies and ideological soulmates at other law schools. The recipients of those calls then flag the prodigy's file, giving them a critical leg-up in the process. Law school hiring tends to be driven by the self-perpetuating network of left-leaning senior faculty.

Bainbridge offers a new hypothesis: libertarians and conservatives often lack the faculty sponsors necessary to secure highly competitive job slots. The fact that academia is a professional association, whose tenured members get to determine the rules and practices of the trade and its reproduction, limits the number of jobs available, Bainbridge argues, and thus has the effect of accidentally discriminating against libertarians and conservatives. Bainbridge's distinction are certainly much better than Althouse's by creating a slightly less concrete mechanism, the machine, rather than the liberal [who for Ann is waiting to ding every conservative.] Bainbridge's issue is that his argument doesn't sufficiently distinguish between conservatives, libertarians, and "liberal" rejected faculty given the small number of persons actually hired. The lack of a direct casual mechanism to select conservatives and libertarians as such means that our only response is "tough" or "deal." Don't let the door hit you on your way out either; trust me its nothing personal.

Andrew Seal gets past all the question-begging and goes directly to the heart of the matter: "But the question they all skip around is, why were the liberals there in the first place? Why is academia a magnet for liberals? They may be entrenched now, but it's not like the university just now took a turn to the left. Well, if you're Steven Levitt (the freakonomist), the place you look is to incentives. Holding all things equal, what incentives do liberals have for adopting the academic life?" His observation that liberals didn't just start to dominate the university is apt; in fact, we have historical evidence that conservatives may have dominated the university at the turn of the 19th/20th century. It would be interesting to note what changed.

Well, why do people choose a career? Andrew continues, I'm going to be reductive and say it's for one of three reasons--to gratify a passion for one's work, to achieve renown/influence or to make money.

Now, just hang on a second, this isn't going where you're thinking. I don't think (not making) money is the principal factor in turning liberals to academia and conservatives away. And, like passion for one's work, it is not limited to liberals. What I do think is a factor--the factor--is influence.

There are two ways of influencing--direct and indirect. (I suppose this is akin to hard and soft power, but for the sake of a future post that relates to this, I will use direct and indirect influence.) You can try to directly influence the circumstances, or you can attempt to influence the flow of ideas that will bring about the circumstances. I think that it is accurate to say that conservatives have historically favored direct influence and liberals have favored indirect influence. That's not a value judgment, it is supposed to be descriptive.

Seal then goes on to distinguish between the fact that, for him, conservatives target conditions (direct influence) and liberals offer ideas that shape conditions (indirect influence). That seems to me to be too clever by half for a reason why we find more "liberals" than "conservatives" in academia.

The idea that no one wants to discuss is: why is it an issue about the ideological preferences of a faculty member or a faculty body? Moreover, how do we go about measuring any given person's preference?

One answer is that the scholarship suffers from too much ideological agreement. We know that's not true. The preponderance of "liberal" academics at an institution seem irrelevant because the academic peer-reviewed journals largely shape the profession of academia. (Law reviews, I believe, are the exception for they are not peer reviewed.) The editors who run the journals are distinct from the faculty who grant tenure in the sense that they don't perfectly overlap. Not every tenured faculty member will head a journal. Moreover, most journals have anonymous readers for articles who aren't selected for their partisanship but for their methodological diversity.

Another answer concerns the brainwashing of the students. No person who has been to college or university recently will tell that they and their peers were blank slates waiting for liberal professors to remake. We need a more complex account than that. Oftentimes students take classes with their own agendas in mind to challenge professors or to mock them. Students argue about their politics, the professor's politics, and the class readings outside the classroom. Critical thinking is not partisan-bound. Students, Republican and Democrat alike, have benefited from taking classes and from talking to one another. In fact, four years of college seems to produce more political apathy and dissatisfaction than anything else.

In short, the debate over professors political affiliations as either a proxy for hiring diversity or regarding concerns over brainwashing undergrads is a load of crap is ever heard of one. The debate is not only pointless, but it's obnoxious too.