Author Archive: Gail Heriot

WILFRED McCLAY:  Civic education, rightly understood: To become responsible citizens, young Americans need a full, accurate, and responsible account of their own country.

I GUESS IT SEEMED LIKE A GOOD IDEA AT THE TIME: On this day in 1855, William Walker, a 31-year-old, European-educated, physician-lawyer-journalist-duelist-adventurer from Tennessee, invaded Nicaragua with a tiny army of about 60 well-armed American “colonists.” Nicaragua had strategic importance in the pre-Panama Canal days. Most shipping between the oceans went up Nicaragua’s San Juan River into Lake Nicaragua and then briefly overland to the Pacific (or vice versa). Walker was a “make no little plans” kind of guy.  And he definitely liked a little excitement in life.

This was not Walker’s first rodeo. A few years earlier, he and 45 men had conquered Baja California—sort of. They managed to capture La Paz—then the capital of that sparsely populated territory—where he declared himself “President of the Republic of Lower California” and adopted the law of Louisiana to govern it. Not co-incidentally, that meant slavery was authorized. Walker was apparently hoping that his new nation would eventually enter the Union as a slave state. This made him popular with many Southerners and in particular with the Knights of the Golden Circle (a semi-secret society originally founded for that precise purpose–spreading slavery to Mexico and Central America and then annexing them to the U.S).

A few months later, without actually gaining control of Sonora, he declared Lower California to be a part of a larger “Republic of Sonora” and made himself President of that instead.

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MAVERICK:  My copy of Jason Riley’s new biography of Thomas Sowell has arrived.  I’m looking forward to reading it.

TICK TOCK: On this day in 1859, the four-faced clock in the tower over the Houses of Parliament—designed by Augustus Pugin—started keeping time. Since then, the clock has occasionally stopped—sometimes because of bad weather and at least once because too many starlings decided to roost on its minute hand. But it kept ticking when German bombers damaged two of its dials during the blitzkrieg, so came through when it really counted.

The name “Big Ben” is the nickname for the largest bell in the tower (though it is also commonly applied to the clock and to the tower). The bell is 7 feet, 6 inches tall and 9 feet in diameter, weighs 13.7 tons, and is struck every hour on the hour. Smaller bells are struck every 15 minutes.

The current great bell is actually the second such bell. The first cracked during testing before the bell tower was even completed. The second was thus delivered to the site with great fanfare in a carriage drawn by 16 white horses with crowds cheering its progress. It took 18 hours to hoist it up to the belfry.

Alas, it soon cracked too. Fortunately, George Airy, Astronomer Royal, came up with a simple solution: Give the bell a 90 degree turn and use a smaller hammer. The British can be good at “make do and mend” when circumstances require.

HOT! HOT! HOT!:  For your reading pleasure, my new book (co-edited with Maimon Schwarzschild)–A Dubious Expediency:  How Race Preferences Damage Higher Education–is being released TODAY.  It contains essays by John Ellis, Gail Heriot, Lance Izumi & Rowena Itchon, Peter Kirsanow, Heather Mac Donald, Gail Heriot & Carissa Mulder, Maimon Schwarzschild, and Peter Wood.

STUDENTS FOR FAIR ADMISSIONS v. HARVARD:  As many of you know, SFFA, the organization that is accusing Harvard of discrimination against Asian Americans, has petitioned the Supreme Court to take up its case.  If the Court agrees to do so, that would allows it to reconsider its decision in Grutter v. Bollinger (2003)–the case that permits colleges engage in race discrimination to pursue “diversity” in admissions.

Earlier this week, Harvard filed its brief in opposition to SFFA’s petition.  In it, Harvard argues (among other things) that race-preferential admissions policies are popular with the American people. As this article shows, that’s nonsense.

SFFA has filed a “waiver of reply,” which will allow the case to proceed toward a conference quickly.  It’s possible we will learn whether the Court will take the case as early as June 14.  Alternatively, this could drag out a while.  We’ll see.

HOW DYSFUNCTIONAL IS THE U.S. COMMISSION ON CIVIL RIGHTS?: The Commission has a tradition of passing resolutions honoring civil rights figures who have recently died. I have always dutifully voted in favor of these resolutions regardless of whether I agreed with everything (or indeed anything) the particular person had said or done while living. It was enough that one of my colleagues thought the person was worthy of such a tribute.

Then, in December, Walter Williams, a civil rights hero of mine and probably of many Instapundit readers, died. I asked my special assistant at the Commission, Alex Heideman, to write up a tribute to Dr. Williams. I thought this would be routine.

It wasn’t. After much delay, the tribute finally came up for a vote at the end of April. It passed, but just barely. The vote was 5-3. (Thank you, Commissioner Yaki, for breaking ranks with the progressive members of the Commission and voting with the conservatives.)

A REDUNDANT PROSECUTION IN MINNESOTA:  The federal prosecution of Derek Chauvin was likely undertaken as a hedge against the possibility that he would be acquitted in the state prosecution.  That obviously isn’t what happened.  But the prosecution apparently will proceed.

What’s jarring to a lot of Americans is that it’s possible to be acquitted of a crime in state court, but still prosecuted in federal court (and vice versa).  They think the Constitution protects them against double jeopardy.  It doesn’t (or at least that’s how it’s been interpreted for a long time). Back in the day that there weren’t many federal crimes, that may have been tolerable.  But these days there’s almost always a federal crime that can be charged, so double jeopardy is almost always possible.

I’ve argued in the past that in the specific and narrow context of the federal hate crimes act that this is unconstitutional. Some federal appellate judges have appeared to be sympathetic to the argument, but it will take the Supreme Court to do anything about it.

IT’S NOT ALL IN YOUR HEAD, YOU KNOW:  The College of the Ozarks is suing Biden and HUD officials over the Administration’s insistence that transgender students be assigned to the dormitory they identify with, rather than the dormitory of their anatomy.

(The brief linked to here was written for the Title IX context rather than for the Fair Housing Act context, but I think the basic logic still applies.  Like Title IX, the Fair Housing Act forbids SEX discrimination, not GENDER discrimination.  At the same time, there seems to be a general agreement that the FHA allows colleges and universities to have separate dorms by sex. Once you get that far, even under the Supreme Court’s decision in Bostock v. Clayton County (in fact especially under Bostock), the College wins for the reasons outlined in the brief.

Here’s the quick version:  In Bostock, Justice Gorsuch was hyper-textual.  He essentially held that if an anatomical women who wears dresses would be hired, but an anatomical man who wears dresses won’t be hired, that’s sex discrimination under Title VII.  But the same logic doesn’t apply here:  If an anatomical woman who wears dresses can live in the women’s  dorm, but a anatomical man who wears dresses can’t live in the women’s dorm, that is indeed sex discrimination, but sex discrimination  is permitted in this context.  If it weren’t permitted, it wouldn’t just be transgender individuals who could “cross over” to the other dorm.  All men (and all women) are being discriminated against when they are not permitted to live in the opposite sex’s dorm.  Note that it doesn’t help HUD’s argument to say, “Well, transgender women (anatomical men who identify as women) really are women.  At that point, they are arguing that the college is treating two kinds of women differently.  But there is no law against discriminating between two different kinds of women; the statute forbids discrimination on the basis of sex.)

GOV. DeSANTIS INTENDS TO REQUIRE UNEMPLOYMENT CLAIMANTS TO SHOW THEY’VE BEEN LOOKING FOR WORK:   That sounds like the right call to me.

I spoke to someone very familiar with the restaurant industry here in San Diego a few days ago.  She told me much the same thing as Power Line’s Paul Mirengoff reports from Florida:  Restaurants here are having a hard time staffing up.  Their former employees are getting unemployment benefits, and many of them don’t want to come back to work until they have to.  My “informant” told me her own roommate doesn’t want to go back to work.  Alas, stories like that seem to be everywhere these days.