We shall overcome and find really lame examples of not doing so

There are two things I believe about the state of civil rights in America. Number one, we still have a way to go towards racial equality, even if the guy flying in Air Force is African American.

And number two, the examples given--and offered in complete seriousness--of how we have not yet achieved complete racial equality are often a bit silly.

No, these are not contradictory statements. This occurred to me as I read Michael Klarman's recent book Unfinished Business: Racial Equality in American History. First a comment on the volume: it's fine if you are looking for a quick overview of the subject. Were I to teach a class of high school seniors or college freshmen on civil rights in America, knowing how short an attention span teenagers have, this is probably the book I'd use as a text. But if you're really interested in the topic, far better and more thorough is Klarman's 2004 book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, or We Shall Overcome: A History of Civil Rights and the Law by Alexander Tsesis, published just last year.

Anyway, in Unfinished Business, Professor Klarman concisely summarizes the racial situation in this country from the founding to the present. Mostly he considers the African-American experience, although to his credit he does not neglect to discuss the appalling treatment of Asians in California from the nineteenth century through World War II.

Towards the book's conclusion, Klarman brings up areas where we still have inequalities. In the first several pages of the chapter entitled "To the Present," he looks at Hurricane Katrina and the havoc it raged on poor black communities in New Orleans. That's a perfectly reasonable point to raise, even if he mentions President Bush's response to the disaster only briefly and Mayor Nagin's response not at all. But then Klarman jumps into an ill advised look at American society as a whole, making this groan inducing comment on page 200:

"Magazine readership is... stunningly segregated: in a typical month, half of all blacks read Ebony, while fewer than one in every hundred whites does so."

Well not too many fifty year old women read Seventeen either. Perez Hilton and Elton John probably don't read Playboy, or if they do, they're actually telling the truth when they say they read it for the articles. Go into a old folk's home and you probably won't find many copies of Rolling Stone lying around. Anybody see any of that as a problem?

By the way, take a look at what Ebony says on their own website:

"Our goals is to provide a unique and engaging forum to explore the impact of the world on African Americans and the impact of African Americans on the world."

That's for the online edition, of course, but the print edition is similarly focused. I wish, by the way, that somebody there had focused on noticing that it should have been "our goal" not "our goals." The point is, if you produce a magazine and specifically say your target audience is African American, you're going to get mostly African American readers. That's just fine; the notion of few people of European descent reading Ebony as being a sign that segregation is alive and well in America is a bit of a reach. Besides, if they just put a caption on the front cover stating "Inside: pictures of Beyonce' in a bikini" they'll get plenty of white guys checking it out. Except Perez Hilton and Elton John.

Right before making the Ebony remark, Klarman notes that in 1996-97 there was only one television program in the top twenty among both white and black viewers--Monday Night Football. Uh oh, I thought, he's going to bring up the racial composition of NFL teams.

He did. From page 201:

"On its surface, the National Football League seems very well integrated: two-thirds of the players are black, and one-third is white. Yet in 1995, blacks were just 9 percent of professional quarterbacks, while they were 90 percent of running backs and wide receivers, and 100 percent of defensive cornerbacks. Whites are represented disproportionately on the offensive line, where intelligence is prized, and blacks on the defensive line, where greater emphasis is placed on athleticism."

Yeah, plus most punters were white and a large percentage of players with surnames ending in a vowel were placekickers. I really don't have a clue what point Klarman is trying to make with this. We'd be better off if instead of all the cornerbacks being black there was the same two-thirds black, one-third white ratio as on the roster as a whole? All I want from the Atlanta Falcons cornerbacks is to keep the receivers on the other team from making catches. As for the bit about intelligence on the offensive line and athleticism on the defensive line, I confess I've never thought about it in those terms. Instead, I think the defensive linemen are supposed to slam their bodies into the quarterback and the offensive linemen are supposed to stop them from doing it. Since both acts are quite painful, I don't think either side is behaving particularly intelligently.

Just last weekend, University of Georgia quarterback Matthew Stafford was the first player taken in the NFL draft. He's going to Detroit. As such, he'll be in the city that arguably shows how far we still have to go in the USA to make the American dream accessible to everyone. Hopefully he'll spend his free time visiting Detroit's communities and trying to make it a better place, which frankly might be a bit easier than making the Lions a better team. When we all do whatever we can to show our concern for those who don't have the best opportunities available to them, we help to make the world just a little bit better.

That matters a whole lot more than whether we read Ebony or not.

Palmettos and Polish sausage in the White House?

In our endless cycle of Presidential elections, one already hears South Carolina Governor Mark Sanford mentioned as a candidate in 2012, or 2016. Suppose for a minute that Sanford does follow Barack Obama into the White House. Do you realize that this would mean that three of four first ladies in succession were born in the Chicago area?

Well, as the photo of Jenny Sanford on the official website of the SC Governor's Office shows, at least we'd finally have a Windy City born first lady who gave birth to a son or two...

Biblically correct and Darwinally correct

"The way I answered may have been offensive. With that question specifically, it's not about being politically correct. For me it was being biblically correct."-- Carrie Prejean, Miss California.

When controversies erupt about gay marriage, or even gay rights, as they have in the wake of Perez Hilton's question for Prejean at last weekend's Miss USA pageant, and when the inevitable mention of Scriptures arises, I'm always struck by a profound irony.

Namely this. As I write, I've got two books on my desk, a pair of volumes that belong in every home as far as I'm concerned. One is the Bible; the other, having its sesquicentennial this year, is Charles Darwin's Origin of Species. Now clear away all your preconceptions and answer this question: which of these books more logically leads to a notion of tolerance for homosexuality?

I'd say it's the Bible, and it's not a particularly close call.

Yes, I know about Leviticus 17:13, "Thou shalt not lie with mankind, as with womankind: it is abomination," and how this has been used by some zealots to argue that gay people are eventually going someplace hotter than Atlanta in August. Of course, Leviticus also says you can't eat pork (11:7); I've never heard anybody suggest gays are going to hell for eating ham sandwiches.

But beyond Leviticus 17:13, look at all the passages in the Bible that implore tolerance and compassion towards everyone, without regard to who they lie next to. Take Matthew 22:39, for instance: "Thou shalt love thy neighbor as thyself." Or Matthew 25:40: "Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me." And most famously, Luke 6:31: "And as ye would that men should do to you, do ye also to them likewise."

Doing unto others as you'd like done to you is, it seems to me, something Perez Hilton and his ilk could cite in favor of allowing gays to marry.

Does Darwin's master work offer any powerful ammunition to the cause of homosexual rights? Not so much; it's coldly logical and scientific. In fact, The Origin of Species is arguably a better case against homosexuality than Leviticus 17:13. Look at what Darwin says in the final chapter, summing up the book:

"The struggle for existence inevitably follows from the high geometrical ratio of increase which is common to all organic beings... The slightest advantage in certain individuals, at any age or during any season, over those with which they come into competition, or better adaptation in however slight a degree to the surrounding physical conditions, will, in the long run, turn the balance... With animals having separated sexes, there will be in most cases a struggle between the males for the possession of the females. The most vigorous males, or those which have most successfully struggled with their conditions of life, will generally leave the most progeny."

It doesn't take a degree in biology to understand a couple of basic facts inherent in these words. Humans are animals having "separated sexes" at least outside of San Francisco. The perpetuation of the species is dependant on sexual reproduction--all six billion people on earth are the result of the unification of a sperm cell, produced only by males, and an egg cell, produced only by females. There has never been, nor will there ever be, a case of humans propogating by Perez Hilton getting it on with another guy. If all human sex was between same sex partners, the human race would eventually die out. This is a reality that even the strongest critics of Darwin's theories would acknowledge.

And so, by Darwinian theory, you've got one behavior, heterosexuality, that has a good chance of helping an individual to pass on his or her genes, and a second behavior, homosexuality, that affords no chance to pass on genes.

So if you're going to be coldly logical about it--if you're going to put all your eggs in the scientific basket and none in the morality/religion basket--then there is no sound argument for gay marriage, or even for gay behavior being legal.

This is essentially why it's so silly to get all worked up over whether people are born gay or not, as though if you could scientifically prove that such was the case that it would end all debate. Pastor Rick Warren made a not unreasonable point in that regard: it's biological for heterosexual men to be attracted to multiple women, but that doesn't mean we as a society condone adultary in married men. And if it is acceptable for a society to say, in essence, that we don't care what a heterosexual man's urges are, we expect him to maintain a certain standard of behavior, there really isn't any reason that the same policy shouldn't hold for the urges of homosexual men.

Unless, that is, we as a society decide it's okay for a man to marry another man, that the analogy to a married man's urges is irrelevant. I think we're well on our way to making that judgement--but the point is, if we are traveling down that road, it's a position grounded in morality, of which the Bible is a canonical text, and not of science, of which The Origin of Species is a canonical text. That's the irony of Pastor Warren's comments--he's a preacher, not a scientist, and yet his view of gay marriage is less love thy neighbor than survival of the fittest.

Which takes me back to my thesis here, that the Bible makes a better case for tolerance of homosexuality than science does. So why isn't the case made? Or going the other way, if Darwinian theory is a powerful argument against homosexuality, why don't the opponents of gay rights ever use it?

I think it's pretty obvious why. People who support gay marriage tend to be liberal, those opposed tend to be conservative. If liberals started citing New Testament verses in support of gay rights, they'd then have to answer charges of being inconsistent when they fight to prevent a public high school football team from saying a few words of prayer before the big game. And if conservatives pointed to Darwin to argue that homosexuality is contrary to natural selection, they'd then be asked why they don't believe that same process of natural selection could take you from Australopithicus to man in a few million years.

Sometimes people will ignore a potential argument in their favor because they just can't stomach the source.

Out: rum ruffians. In: racist rednecks.

It seems to me that those who criticized last week's tea parties, for the most part, took the position that the participants were misguided. In its milder form, you had Senior White House Advisor David Axelrod suggesting the tea parties were "unhealthy." In its more extreme form, you had Janeane Garofalo tarring the protesters as racist rednecks.

I'm not sure if such epithets are worse than those hurled at some earlier prominent protesters of the government's fiscal policy. Recently I read Woody Holton's probing book Unruly Americans and the Origins of the Constitution (2007) in which he extensively discusses the sour financial mood of the United States under the old Articles of Confederation. Holton argues, in fact, that it was largely the fiscal crisis that led to the drive for the Constitution.

Ah, but that came a little later. First and foremost, the 1780s protesters were admonished, just as Axelrod and Garofalo did to the placard-wielders at the tea parties. But here's the contrast: rather than suggesting that the eighteenth century discontented were misguided, their critics exclaimed that "The Fault is All Your Own," as Holton entitled chapter 2 of his book. Here's how that chapter begins:

"As more and more Americans insisted that the harsh fiscal and monetary policies of the 1780s had spread desolation through the countryside, most of the defenders of these policies acknowledged that farmers were in trouble but denied that official crackdowns on debtors and taxpayers were to blame. 'The disorder under which you at present labour and complain,' 'Mentor' told his fellow Marylanders during the summer of 1876, 'is only to be ascribed to your own misconduct.'" (p. 46).

Professor Holton goes on to describe an argument made seriously then that I doubt anyone would make today--even if one might quietly murmur that it had a tincture of validity. Namely, the 1780s ladies were told that it was their love of extravagant clothing that was largely to blame if their husbands or fathers were a little short when the tax man came around. Holton quotes an essayist of the time who advised the men "(P)ull all the plumes from the heads of your wives and daughters. Feathers and fripperies suit the Cherokees, or the wench in your kitchen; but they little become the fair daughters of Independent America." (p. 49). Now THERE is a redneck racist, Miss Garofolo, and he furthermore used the word "wench," the chauvinist!

I may have missed something, but I honestly don't think any of those who sneered at the recent tea parties pondered aloud why the ladies in attendance didn't quit complaining about their tax burden and just shop at Goodwill instead of Saks.

Of course, the opponents of the 1780s activists didn't confine their objections to the women having nice clothes. The men, they insisted, were at fault as well. The same guy who blasted feather wearing ladies "told Connecticut farmers they could easily discharge their tax bills if they would simply drink less rum," Holton notes dryly, pun intended (p. 49).

As loud as the outcry about Garofolo's remarks has been, just imagine if she'd added to racist rednecks the comment, "If these clowns would stop spending money on beer and NASCAR tickets, they'd have plenty of extra money that the government could tax to use for the greater good."

Garofolo would never say anything like that, of course. People might accuse her of being elitist.

It's right there in black and white! And it's dead wrong!

William Leuchtenburg's The White House Looks South (2005) is a readable, entertaining look at the way in which three twentieth century presidents--Franklin Roosevelt, Harry Truman, and Lyndon Johnson--were influenced by, and themselves influenced, the South. Being a Yankee living in the Deep South, I might have gotten more out of the book than most folks would, but still I recommend it very highly. I've always enjoyed in Leuchtenburg's writings his use of letters written to historical figures by ordinary citizens, and there is plenty of that here.

And, there is one honking big, how-in-the-world-did-that-make-it-past-the-editor goof in the last sentence of the volume. There, Leuchtenburg writes:

"In sum, the South in the twenty-first century--indeed the South on Lyndon Johnson's final day in office in 1973--is a very different place from the South Franklin Roosevelt found when he got off a train in a rundown Georgia village in 1923." (p. 418).

Of course, LBJ's final day in office was January 20th, 1969, he famously declined to seek reelection in 1968.

I'm not writing this to pick on Professor Leuchtenburg; we all make mistakes and I've contributed to the universe's tally of errors in this blog. But the point is, you always need to be alert when reading about history; boo-boos do creep in and often you won't know unless you've already got some sound knowledge of the topic at hand. The thing about Leuchtenburg's wrong date is that lots of people would catch this one right away, because there are so many people alive today who were also alive in 1973 and know that Nixon was President.

Another interesting book I've almost finished has a great example of a mistake that I would wager better than 99% of its readers wouldn't catch. On page 150 of Democracy Reborn:The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006), author Garrett Epps has this to say:

"The population [of African-Americans in 1865] was overwhelmingly concentrated in the Deep South--in South Carolina, Georgia, Alabama, and Louisiana, in fact, blacks formed a majority of the population."

No, in fact, they didn't--at least not in Georgia and Alabama. I remembered from some earlier research that there were about four and a half million slaves in Georgia in 1860 and over five and half million whites, but I checked the census figures from 1860 and 1870 again just to be certain. (Isn't it great living in an age where you can access the Census Bureau's website and look at actual facsimiles of the books from 1860 and 1870 instead of having to go to a research library and pour through dusty books in a remote corner of the building?)

Sure enough, in 1860 Georgia recorded 465,698 "colored" people and 591,550 whites. Ten years later the figures were 591,550 colored and 638,926 white.

I checked the other five Deep South States--the four Epps mentions plus Mississippi and Florida. It's odd he didn't mention Mississippi, since this is one of two states--South Carolina being the other--where blacks did outnumber whites in both the last antebellum census and the first Reconstruction one. Alabama and Florida, like Georgia, had more white people than black in both counts. Louisiana had a few thousand more white than black in 1860 and in the following decade it flipped so that there were a few thousand more blacks in 1870, so I don't see how you could safely say which race was better represented halfway between the tallies.

Then there are those statements in books that are mostly true, but not entirely true, and so we should take care not to phrase them as absolutes. Epps provides another example of this on page 211 when he writes:

"Together [Susan B. Anthony and Elizabeth Cady Stanton] formed a mighty force that--though it did not win the vote [for women] in their own lifetimes--transformed the world around them."

I've seen similar comments--about Anthony--at least, elsewhere, including in a museum journal article written by an interpreter at the Susan B. Anthony home. Remember this: if you read that Susan B. Anthony--who died in 1906--passed away before women could vote, it is exactly as if you said that someone who died today went to the grave before gays could legally marry. As of last week, we've got four states that permit gay marriage; when Anthony died four states--Wyoming, Colorado, Utah, and Idaho--fully enfranchised women (Keyssar, The Right to Vote, 2000, p. 402). Actually, gay marriage in 2009 and women voting in 1906 isn't quite so perfect an analogy, because while gay marriage is a black and white thing--they can either do it or they can't--women voting in the late nineteenth and early twentieth centuries has shades of gray. Ladies in Kansas, for instance, could vote in 1887, but only in municipal elections (Keyssar, p. 400). The point is, a lot of woman had voted in one capacity or another when Susan B. Anthony died--or Elizabeth Stanton, for that matter, who passed away in 1903.

What it all boils down to is that when you write something its a good idea to cite multiple sources; it's an even better idea to go to the original source, as I did with the census figures.

And for goodness sakes, be skeptical about what columnists write. What set me to penning this little essay on errors was the groan I uttered when I got up this morning, checked out the townhall.com website, and read this assertion by Walter E. Williams, a professor at George Mason University:

"The Constitution's Article V empowers two-thirds of state legislatures to call for a constitutional convention to propose amendments that become law when ratified by three-fourths of state legislatures. I used to be for this option as a means of enacting a spending limitation amendment to the Constitution but have since reconsidered. Unlike the 1787 convention attended by men of high stature such as James Madison, Thomas Jefferson, George Washington and John Adams, today's attendees would be moral midgets: the likes of Barney Frank, Chris Dodd, Olympia Snowe and Nancy Pelosi."


If you choose, you may agree with Williams that Barney Frank is a moral midget. But you know, Congressman Frank has at least one thing in common with Thomas Jefferson and John Adams. They did not attend the Constitutional Convention of 1787 either.

Gay power to the people

Some of you are going to think I'm being preposterously nuanced on this, but I'm in favor of gay marriage in Vermont but not in Massachusetts.

What's the difference? I defer to Abraham Lincoln's first inaugural address:

"(T)he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln was referring to the United States Supreme Court, and its disastrous decision in Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857). But clearly the sentiment could apply as well to the decisions of state supreme courts.

Last week in Vermont, gay marriage became law thanks to the actions of legislators, the direct elected representatives of the people. But in Massachusetts, gay marriage is the law because of a four to three majority decision by the state's Supreme Judicial Court in Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003). In Massachusetts, the justices on their highest court are not direct elected representatives of the people; they are appointed by the Governor.

Massachusetts had been around for a colony and later a state for almost four hundred years when Goodridge was decided. I just personally think that when you have four hundred years of precedent that marriage can exist only between one man and one woman, that policy shouldn't be changed by the words of four out of seven judges. In America the judiciary serves the people, not the other way around.

And to petition the Government for a redress of grievances

"A credible national survey reveals that more students know the names of the Three Stooges than the three branches of government." --U.S. Supreme Court Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, 2005, p. 133.

Well, maybe that's because these days the three branches of government work together about as well as Curly, Larry, and Moe painting a room.

I seem to recall also seeing polls that show that a majority of Americans cannot name one of the freedoms guaranteed by the First Amendment. I do suspect that if you asked a well informed person to name one of those provisions, he or she would shoot from the hip "freedom of speech," or "freedom of the press" or "freedom of religion." Those are all quite wonderful things to have in a democracy, but I wonder if the most important part of the First Amendment is the final eighteen words, "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." After all, if people don't exercise their right to tell the government when they're displeased about something, what's to stop government from continuing the offending practice? If you say "elections," I'm not certain I'd agree. Sometimes, alas, government goes on doing things that irritate a lot of people regardless of the results at the ballot.

The significant point is that we've got a right to assemble and petition--or to condense it into one word, a right to protest--and democracy works best as a participatory exercise. So why do so many think it's acceptable to mock people simply for the act of assembling and making their voices heard? Take a look at this video; notice how condescending Rachel Maddow and her guest are about the "Tea Parties" planned for this week:

http://www.msnbc.msn.com/id/26315908/#30145811

To me, this smacks more of sneering at people for getting together to protest rather than an honest disagreement with the outcome the protesters endorse. I don't mean to pick on Maddow since she's a liberal; I've seen the same on the other side. Some conservatives have mocked Code Pink and other Iraq War opponents for marching to make their position known.

We should all try not to do this. Argue with the message if you wish, but respect the right and the desire to protest. You'll want that consideration yourself if you're ever inspired peaceably to assemble.

Miscue by ASU

There is actually a very sound reason why Arizona State University should not give an honorary degree to President Obama. Look at the list of past recipients of the honor. See who's missing?

They've never conferred such a distinction on John McCain. And if ASU has not seen fit to give an honorary degree to a man who spent years in an enemy prison camp, who served the state in Congress for so many years, and a man who, if Arizona voters had their way, would be in the Oval Office right now, why should a university that represents the state and draws money from its taxpayers salute Obama before him?

On the other hand, since ASU has awarded honorary degrees to Hugh Downs and Erma Bombeck, maybe we shouldn't take the whole matter so seriously...

Potheads

Time magazine has published an article arguing that we should legalize marijuana. Personally, I'm one hundred percent against legalizing pot, for a very sound reason. Namely, I figure the only thing worse than having a lot of people behaving like Sean Penn would be having a lot of people behaving like Sean Penn's character in Fast Times at Ridgemont High.

The Tenth Amendment and the wolves

"Just as California under President Bush asserted itself on issues ranging from gun control to medical marijuana, a motley cohort of states – from South Carolina to New Hampshire, from Washington State to Oklahoma – are presenting a foil for President Obama's national ambitions. And they're laying the groundwork for a political standoff over the 10th Amendment, which cedes all power not granted to Washington to the people."

The article goes on to give this example of a supposed state assertion of the Tenth Amendment:

"The Idaho House began considering Wednesday a law against introducing "vicious animals" into the state – a direct rebuttal of the federal wolf reintroduction program."

Full disclosure on two fronts. First, as a petting zoo keeper, I really like animals and want to do what's best for them. Second, in general I'm a proponent of the Tenth Amendment. That's why I think Roe v. Wade was a poor decision. You've got the states regulating abortion from the time the union was founded, and all along it's perceived as an area of family law subject to state law in the same way marriages and adoptions are, and then all of a sudden the Supreme Court decides that because of the Fourteenth Amendment's due process clause, federal authority over abortion is warranted. A much less nuanced reading of the Constitution leads, I believe, to the conclusion that in 1973 the Court should have left the matter of abortion where it was, with the states.

Having said that, don't you pro-lifers kid yourselves that if Roe had deferred to the states that most abortions these past thirty-six years would have been prevented. In the six years before Roe nineteen states passed laws making it easier for a woman to have an abortion; that trend likely would have continued. (See Elshtain, "Roe v. Wade: Speaking the Unspeakable," in George, ed. Great Cases in Constitutional Law, 2000, p. 178.)

But I want to talk about wildlife here, not abortions. Animals, unlike abortions, are popular; people wouldn't take their kids to the San Diego Zoo to see a fetus removal. And where the wolves are concerned, those legislators in Idaho may be howling up the wrong tree. It's all about the Constitution's Property Clause.

The Property Clause is found in Article IV, Section 3 of the Constitution; it declares:

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

If you've read anything about the history of this country between 1850 and 1860, you know we basically had a Civil War because of two contrasting interpretations of this clause, with one side saying yes, since Kansas is a territory and not a state Congress can ban slavery there and the other side saying no, that's a strained interpretation. Abe Lincoln gave a famous campaign speech on this matter, but his eloquence did not convince everyone, and so the bullets flew.

With the ending of the War, plus the granting of statehood to all those western territories, the property clause no longer was applicable to quite as much land. Ah, but note I said not quite as much land. Because even today, over a century after statehood, a whole lot of land in some of those western states is federal property. You may say if you want that this means the U.S. government is the landlord; I prefer to think that this means we the people are the landlords.
In the specific case of Idaho, sixty-four percent of the land is in federal hands, almost two-thirds of the acreage. And if Congress authorizes federal agencies to reintroduce wolves to some of those lands where they are now rare or absent, well, they have the power to do that.

This was essentially the holding of Kleppe v. New Mexico, 426 U.S. 529 (1976), in which a unanimous Supreme Court upheld the Wild Horses and Burros Act against a claim by New Mexico that Congress had exceeded its authority. Although the burros at issue in the case were rounded up on federal land (Kleppe at 533-34) the Act protects mustangs and donkeys even if they stray off of federal land and onto private property (Kleppe at 531-32). In its opinion, the Court made it pretty clear that under the Property Clause the U.S. government can enact very stringent laws to protect wildlife on federal lands.

Admittedly, there is another issue where wolf reintroductions are concerned. For while a burro may compete with a rancher's livestock for food, a wolf might make the rancher's livestock food. Worse, from the rancher's point of view, when it comes to federally protected species, the courts have not observed the traditional common law right of a landowner to defend their property. Thus, in Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) a fine of $2,500 on a rancher who shot a grizzly bear was upheld even though he'd lost twenty sheep in one week to the bears. The U.S. Supreme Court declined to hear Christy's appeal.

If you click on that link, even if you favor wolf reintroduction I think you'd have to conclude Justice White's dissent from the decision not to grant certiorari raises some relevant points. We as a society have concluded that wolf preservation is a lofty goal, but why should the ranchers alone bear the financial burden for any damage done by wolves? Fortunately, this is one of those cases where private citizens, rather than the government, have stepped in to ameliorate an unfavorable situation.

For over twenty years now, the Defenders of Wildlife have maintained the Wolf Compensation Program. Through this fund--consisting of private donations, not taxpayer dollars--the Defenders of Wildlife pay landowners the market value of any livestock killed by a wolf (Faigman, Legal Alchemy: The Use and Misuse of Science in the Law, 1999, p. 171--Faigman's several pages on Yellowstone wolf reintroduction provide a good, brief background on the topic).

In summary, to prevail in their fight against the feds, those politicians in Idaho will have to work to overturn Kleppe, a thirty-three year old, nine to nothing decision. As it now stands, there isn't much constitutional merit to Tenth Amendment arguments objecting to wolf reintroduction.