Lincoln Lost

Quiz Question: What is the official name of the holiday celebrated by our federal government today?

I bet you said, "President's Day."

Wrong.

There's a popular conception that Washington's Birthday and Lincoln's Birthday were merged into one holiday called "President's Day." Actually, Lincoln's Birthday was never a federal holiday, and, as the official list shows, today's holiday is simply called "Washington's Birthday." Lincoln's Birthday was once a holiday in some states (do click on that one, it's a cool link to a NYT article from 1906), but never at the federal level, although it is officially listed as a day when the U.S. flag should "especially" be displayed.

Thanks to poor statutory drafting, Washington's Birthday is celebrated on the third Monday in February, so that even when Washington's real birthday of February 22 falls on a Monday, it can never coincide with the holiday. When February 22 is a Monday, it is the fourth Monday in February, because in those years February 1, 8, and 15 are also Mondays.

In another blow to popular opinion, Washington was actually born on Feburary 11, 1731. What's up with that? The answer is that his birthday got changed to February 22 in 1752, when Britain finally adopted the Gregorian calendar. The calendar change required skipping ahead 11 days to catch up with the difference between the old and new calendars.

President's Day is said to be an invention of retailers who discovered that a generic holiday moved more merchandise than a holiday celebrating a specific President.

Just a little useful information from your friendly blogging law prof at George Washington University.

Feeling Less Safe?

The Protect America Act expired yesterday, after the House of Representatives went on recess without passing a Senate-approved version of new amendments to the Foreign Intelligence Surveillance Act.

For those new to the story, Congress passed the PAA last summer after the Bush administration claimed that it needed new wiretapping authority to protect against terrorist threats. Because the PAA was intrusive on civil liberties, Congress included a sunset provision that made the act expire after six months, during which Congress hoped to work out a better version.

Intense wrangling over the better version developed, particularly with regard to the question of whether telecom companies should be immune from suit for complying with administration data request -- or, to put it less politely, for spying on their customers. The Senate said yes, but the House version of the bill hadn't included such immunity.

As usual, President Bush forecasts dire danger to U.S. security if the Congress doesn't give him all the surveillance power he wants. But for a change, the House refused to cave in to the President's fear mongering.

It's about time someone stood up to the President on this issue. I'm all for protecting America from terrorism, but civil liberties matter too, and the President can't expect to have everything his own way. His uncompromising approach is just as responsible for any security risk that we're now facing as any Democratic desires. Congress offered another temporary extension of the PAA while things got worked out, but the President refused.

With the PAA's authority expired, the administration will need to get judicial approval for wiretapping more often. Is that a major security hazard? I'm having trouble seeing it.

The Lord Chancellor Speaks

Interesting speech today at GWU Law School (where I teach) by Jack Straw, the Lord Chancellor of Great Britain.

The Lord Chancellor said he wanted to see Britain adopt a Bill of Rights and Responsibilities, possibly as part of a larger project to codify the British Constitution.

Americans take a written Constitution for granted, but Britain doesn't have one. When a British lawyer refers to the British Constitution, he means the way the government is constituted. No one document sets forth all the rules, although there are several important documents that play a role: the 1689 Bill of Rights, the 19th century Reform Acts, and the Parliament Acts.

The Lord Chancellor said that while "an innate understanding of rights is a part of our national psyche," because the sources of rights are scattered, British people "might struggle to put their finger on what those rights are or in which texts they are located. "

As far as I can tell, this speech was the official announcement of this important policy initiative. It was rather exciting to see such a speech given in a university setting. It called to mind how the Marshall Plan was originally announced at a Harvard University commencement.

I asked the Lord Chancellor if the British Bill of Rights would be put to the British people for ratification or if it would be an ordinary act of Parliament. He didn't explicitly answer (I gathered that the latter was the plan) but he said that if the project for codifying the whole British Constitution were to forward, the plan was to put that to a referendum. He said that the British political parties agree that certain changes would be so significant -- switching currency to the Euro, for example, or leaving the European Union -- that they would require popular ratification.

Election Day

Here in Disenfranchisement City, also known as the District of Columbia, we citizens have no representatives in Congress and even the laws passed by such elected officials as we have can be overridden by a Congress made up of Representatives and Senators elected from everywhere but here. Moreover, the District is more than 70% Democrats, so our general elections are usually pretty meaningless -- the Democrats always win. Well, not absolutely always, but almost.

So it's a rare day in the District when we actually have something to vote for. The Democratic primary election for mayor really matters. That's exciting.

And then there's today. This is the first time ever since I've been here that the presidential preference primary has been held in DC at a time when the nomination was still up for grabs.

The polls were packed! I actually had to wait in line! There were eligibility issues! People were trying to vote who weren't registered with a party, who didn't live in the District, or who had moved within the District since the last election. The election officials were courteously, if somewhat slowly, handling the problems.

It was almost like living in a place that actually had real elections. A rare taste of democracy for DC.

The Sad Aftermath

Faithful readers, I know you regard my musings on income tax protestors as an eccentric distraction from things you actually care about, but I can't help but give one more warning to those thinking about falling for bizarre tax theories in light of the latest development in the case of those champion tax kooks, Ed and Elaine Brown. The two have been incarcerated since last October, after a sneak raid by the feds ended their 8-month standoff, which they spent holed up in their New Hampshire home, proclaiming that there was no law requiring them to pay taxes and that the federal court in which they had been convicted was a "fiction."

Reality is perhaps a little clearer from inside a prison cell. Yesterday, the government to which that fictional court belongs conducted the second of two auctions of the Browns' property in an effort to raise money to pay off their tax arrearages. (The linked story says that the Browns owe more than $2 million in back taxes, but what I recall from their trial is that they owe back taxes on $2 million in income. So probably they owe something like $600,000 in taxes, although who knows what the total is with interest and penalties.) A 2-pound bar of gold went for $32,000 (roughly market price -- that's $1000 an ounce), and their coin collection, cars, and other items brought the total raised to about $100,000.

So to anyone thinking of falling for crazy tax protestor theories, just bear in mind what it can lead to -- not only can the government throw your ass in jail, once that's done it can sell your stuff. Not a happy sight.

After Super Tuesday

I thought it would be all over. The states finally figured out that there are advantages to voting early in primary season -- how could they not have figured this out before, one wonders -- and they jammed themselves up on the earliest day allowed by party rules. So today could have been it -- clearly annointed nominees.

But it was not to be, at least not on the Dem side. Hillary and Barack remain locked in a tight race, basically tied in elected delegates. Hillary's lead of about 90 delegates comes almost entirely from the superdelegates.

Partly this comes from the arcane delegate allocation rules. I like the concept of proportional allocation of delegates better than the winner-take-all method used by the Republicans in many states. But the Democratic method isn't really proportional allocation. You might think that prportional allocation means that if a candidate gets 55% of the vote in a state, that candidate gets 55% of the delegates (subject to being off by one because of rounding). But strangely, the rule first divides a state up by congressional districts and then allocates delegates proportionally in each district. So if a district has four delegates, a candidate in a two-person race needs to win more than 62.5% of the vote in that district to get three of them (because 62.5% is halfway between 50% and 75%). With Hillary and Barack running pretty even, the delegate allocation will almost surely be evenly divided in districts with an even number of delegates.

Do we really want the nomination to be determined by which candidate does slightly better in those districts that have an odd number of delegates? The whole thing is strange.

Train Leaving the Station

No legal content today, but I couldn't help but by struck by the story that even though travel is starting to return to normal in Guangzhou, China, following snowstorms that disrupted trains, there were still 400,000 people stranded at the Guangzhou railroad station. And that's down by half from the peak of the problem!

Can you imagine 800,000 people stuck at a railroad station? That's bigger than the entire population of the District of Columbia. If every man, woman, and child in town went down to Union Station and camped out there, the scene wouldn't be as bad as Guangzhou.

I remember once being at a huge political rally in downtown DC, in a crowd later estimated to be 750,000. As we were marching, there was a jam-up as we tried to turn a corner. For about half an hour it wasn't possible to move six inches in any direction.

800,000 people trying to get on a train. Things obviously happen on a grand scale in China.