A tendentious remark, then some techy stuff: A lot of links this past week or two have felt me like the good ol' days, which is to say an intellectually feast. I especially enjoyed the Faulkner link, as I was surprised by and wondered about the allusion.

The techy stuff: Volokh criticism of the Brennan opinion is incorrect, and a bit of a cheap shot; this is important because Volokh has found a sophistical way to try to weaken an important opinion that strengthened the Establishment Clause. To explain why, let me first separate two issues. Whenever issues of logical validity and soundness arise, there will always be two questions: (1.) Are the rules of (standard) logic being used correctly? and (2.) are they being applied correctly. The first involves no more than the correct deployment of logical rules on statements already expressed in standard logical symbols and terms. The latter issue typically involves translating colloquial English into logical terms and symbols (which, actually, is often harder than it looks). On the first issue, Volokh's command of DeMorgan's is correct, and he understands the rule and its implications. On the second issue, he mistranslates Brennan's statement because he does not see that the footnote in question is about exceptions (that is, exceptions), which carries an implied negation by specifying cases that did not violate a constitutional requirement.

Volokh's criticism, in a nutshell, is this:

So the text essentially says: Unconstitutional if (p) substantial burden on nonbeneficiaries or (~q) no removal of state-imposed deterrent to religious exercise. The footnote essentially says: Constitutional if (~p) no substantial burden on nonbeneficiaries or (q) removal of state-imposed deterrent to religious exercise.

[Or, translating: p= there is a substantial burden on nonbeneficiaries ~q= it is not the case that state imposed deterrents on religious exercise were removed].

In plain English, something is unconstitutional if it violates either (p) or (~q), that is, if it burdens nonbeneficiaries substantially or fails to remove deterrents to religious exercise. But something is constitutional if and only it it meets both (~p) and (q.), that is--by DeMorgans--if it not the case that it either burdens non-beneficiaries or imposes state enforced deterrents to religious exercise. Volokh's point is that Brennan confuses the idea that something is constitutional if and only if it violates neither condition (and so you must prove both conditions to demonstrate constitutionality), with the idea that something is constitutional if it doesn't violated either (which would mean you would need to prove one condition or the other, but not both, to vindicate constitutionality).

The problem with this argument is that the Brennan footnote is about "legislative exemptions," that is, exceptions, things that did not violate constitutionality, that is, were not unconstitutional because either ~p or q. But to specify the relevant condition that a given case did not violate is not the same as, or equivalent to, saying that the condition mentioned was the only one that had to be met. What Brennan does is cite cases that it would not be constitutional if it did not meet the specified requirements. Hence, the footnote can be interpreted to be consistent with the main text, and there simply is not logical fallacy.

All of these [constitutionally permissible religion-specific exemptions], however, involve legislative exemptions that [(~p)] did not, or would not, impose substantial burdens on nonbeneficiaries while allowing others to act according to their religious beliefs [i.e., would not be unconstitutional--me], or [(q)] that were designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause.

It was one of the more dignified and intelligent moments I've seen in a few decades of following politics (and not one person fainted during the speech!).

For a very cogent and level-headed analysis, I'd recommend Juan Cole.

Olbermann cracks me up!

I'm going to be out of town for a few days, my father-in-law is turning 90 and still going strong.

Like Buster Martin, 101-year old hopeful marathon runner? Hard not to idolize a centenarian who drinks pints (of "Buster's bitter") between half marathons.

Buster should run for (British) public office. Heck, he makes McCain look old by comparison, and how many campaigning politicians can point to their service and leadership in WWII?

I want to "go strong" right up to the end. Awesome that your father-in-law still has it at 90.

I recently flipped through some Time magazines from the 1960s. Forty years have passed, but quite a lot of things have not changed. Must be a little frustrating to reach old age, look back, and see that. (Krugman's recent "party like it's 1929" comes to mind). Anyway, quite a rare opportunity to meet and talk with someone whose was in his 20s during world war II. Your father-in-law must have an interesting perspective.