I am rationally ignorant about the ultimate details of the new transportation bill but Clay Risen of TNR is against it while Carole Brown of the Chicago Transit Authority (who, yes, has a blog) is for it. Much as I depended on the CTA when I was a Chicago undergrad, this strikes me as being on the whole a bad sign. Still, if public funds are to be blown on massive boondoggles, it is far better that the boondoggles be things like big urban trains than things like documentaries about Alaska.

I have been meaning to post about this for some time, but Professor Lior Strahilevitz's post on PrawfsBlawg will finally set me going. Professor Strahilevitz blogs about the latest rage in land use restrictions-- laws that zone sex offenders and force them to live in particular areas. Professor Berman has also posted about this recently.

The recent text on this is the 8th Circuit's decision in Doe v. Miller. Professor Strahilevitz thinks the most interesting thing about the opinion is the 8th Circuit's rejection of the Glucksberg fundamental-rights claim; as he points out, the cases of government-enforced ghettoes are a widely discredited part of American history. I think the 8th Circuit decided this one rightly on the case law. Government-enforced racial ghettoes are unconstitutional because they are racial, not because they are ghettoes. (They are morally wrong all the time, but alas, under the 14th Amendment that is neither here nor there).

I am more intrigued by the ex post facto claims, but after the Supreme Court precedents here, the 8th circuit seems once again right. For reasons that have never quite been clear to me, the Court has held that a punishment is criminal only if it is really really obvious that the punishment is criminal, or if the legislature says it's criminal. This means that as a matter of fact, if local legislatures want to avoid the presumption of innocence, the ex post facto ban, or any of the vast constellation of protections for those accused of crimes, they can frequently do so.

The 8th Circuit dissent makes a reasonable point that banishment was traditionally sometimes thought of as a punishment, but I am not sure that this is persuasive from a constitutional point of view. First of all, because the restriction here only amounts to partial banishment; a state law that bans people only from part of a state is not the same as one that bans them from the entire state, or a municipal law that bans them from the whole city. But second of all, the law does not banish so much as block-out. (It has a grandfather clause for those who took up residence before July 2002.)

Blocking-out laws were not always thought of as punitive in our history. The example that leaps to mind is the 1851 Indiana Constitution, which provided that "No negro or mulatto shall come into or settle in the State, after the adoption of this Constitution". This would be unconstitutional according to today's Supreme Court, not because it would be a punishment, but because it would be a violation of equal protection.

I might add that federalism creates a further puzzle here for ex-post-facto-clause fans. Some members of the class of plaintiffs almost certainly committed their crimes outside of Iowa, in places where Iowa does not even purport to have jurisdiction over their actions. So if the banishment is a punishment it not only because it punishes people for what they did before the law was passed, but also punishes them under Iowa law for doing something that was not, and cannot be made, an Iowan crime. Put concretely, if California decides that the proper punishment for committing sexual assault in California is Y, it is not obvious why Iowa should be allowed to increase the punishment for California crimes, even if it announces its intention before the fact.

Anyway, there is also a possible rational-basis-equal-protection challenge under Cleburne. Land use restrictions that discriminate against people must be rational and not intended merely to harm a particular group. While the Court didn't believe that it was rational to ghettoize the disabled, I am quite confident that for better or worse it would decide differently about those who have at some point and in some jurisdiction committed a sexually violent crime.

I am not sure that all of these Supreme Court precedents are right. And I am not particularly happy with the way that nearly every government policy, from racial politics to suppressing pornography to harassing sex offenders, at some point finds its way into land use law; and I agree with Professor Strahilevitz that some scholar should analyze the history of government-mandated-residency-discrimination. But suppose we learn that racial-land-use-barriers have been common throughout American municipal history while others have not: which way does this cut, as a constitutional matter? For better or worse (and despite the fact that the 14th Amendment does not mention "race"), the government can discriminate along non-racial lines almost all of the time.

I have opened comments.

(Hat tip for many articles to Registan)

There have been but few mentions in the American mainstream papers that Uzbekistan President Karimov's decision to boot the U.S. from the K2 airforce base might one step in a chain that destabilizes the region, for if Karimov falls from power, dollars to doughnuts, the resulting power grab will be messy and yield a far less consolidated nation. An op-ed in the Russian Kommersant argues that by turning his back on the U.S., Karimov's most powerful supporter, the president has caused his fate to tumble to the hands of his next strongest ally, Russia; the Kremlin, the article suggests, is even less likely to intervene in a velvet revolution leading to regime change than the U.S. is. Now, this does run contrary to the idea that what ever meddling the U.S. did in, say, Yushchenko's election was less than what ever role the Russians played, or the idea that the Shanghai Cooperation Organization (Russia and China and their geopolitical buddies Uzbekistan, Kazakhstan, Kyrgyzstan, and Tajikistan) is strongly united by its desire for the current folks in power in each country to stay that way. The idea, though, that without his trump card—Karimov's working relationship with the U.S. and the resulting in-flow of dollars—Karimov's backers have no reason to use him as their front man, is a destabilization theory that has been proposed before.

At AEI's conference on Uzbekistan and the Bush Doctrine last Thursday, Frederick Starr of Johns Hopkins University SAIS argued strongly that Karimov actually answered to his own silovoki, the men who had made them. Starr's theory is that Uzbek politicians still follow the general mode for Turkish politicians that Ibn Kaldun described in the 14th century: the leaders are placed in power by the khans, and then spend their entire reign trying to emancipate themselves. I question the extent to which the mode has not changed much over the past seven centuries, but Starr did argue convincingly that Karimov does respond to outside minders: he has switched his affiliation to a new political party that only gained ground in the past few years, and is no longer so alligned with the pro-market crowd.

That the pro-market group has had little effective influence on Karimov recently is clear. The protests in Andijan were strongly rooted in economic discontent—the original men thrown in prison for supposed Islamic radicalism were all small nascent class of successful businessmen who, all reports indicate, earned their wealth honestly; their success was a threat to existing oligarchs. Karimov's lack of serious engangement with market reforms goes deeper than just a lack of results: as former U.K. ambassardor Craig Murray notes,

Karimov decided that having Western companies coming was building up alternative power bases in the country. He likes to keep the entire country, including the entire economy, strictly under his control. The companies like Coca-Cola, Newmont, British American Tobacco, have been treated very badly. And he decided for the development of Uzbekistan’s gas field, to turn to [Russian] Gazprom.

But there has been intriguing economic news out of Uzbekistan: last week, Karimov began the process to sack or demote several high-ranking economics officials. At least one other resigned. Whether these officials are simply taking the fall so that Karimov can claim to have made some sort of economic progress, or if these are the first steps in national economic reform remains to be seen. However, as Martha Brill Olcott opined last Thursday, Karimov has a strong disincentive against actual economic gains in his country, since a rising economy would likely increase the level of democracy in Uzbekistan.

Olcott also believes that the U.S. squandered its opportunities to work for stability through economic progress and the development of democracy in Uzbekistan. That window existed for a few months following 9/11. It is closed now, as the Shanghai Cooperation Organization (SCOO) has become the chief external "dictator", if you will, of Uzbekistan's national policies. The SCO, though, does not have the ability to tackle the socioeconomic disatisfaction that many Uzbekstanis share (the extent of the U.S.'s curative powers is admittedly unclear). Because of the paucity of viable solutions—Olcott is pessimistic that political will to actually help Uzbekistan exists on the Hill, even if there were a good plan to propose—Olcott is likewise concerned that Karimov's regime might collapse chaotically, leaving Kazakhstan, Kyrgyzstan, and Turkmenistan flanked by a large population of people who might want to flee across their borders to greater security and prosperity, and a small minority of Islamic extremists who could move around with greater ease.

What the SCO does offer, as Olcott noted, is a shared world view: a belief that Uzbekistan faced an armed rebellion in Andijan that posed a serious security threat, and responded mostly appropriately (perhaps a bit carried away). That shared purpose and idea of SCO's power (and conception of the U.S.'s regional impotence) has been shaken by Krygyzstan, which has (1) agreed to let the U.S. remain at the Manas airforce base for the indefinite future, so long as need remains, without setting a withdrawal date; (2) just seen a regime change in fairly peaceful revolution; and (3) done exactly what Uzbekistan didn't want: it has allowed 439 Andijan refugees to depart for permanent resettlement, rather than returning them to Uzbekistan. In other words, the SCO is seen, through the Kyrgyz example, as uncapable of fulfilling its objectives. This does not bode well for its ability to guarantee regional stability. The SCO's possible inability to do the one thing that its members count on it the most to do is a linchpin in fears (be them worst case scenario) of Central Asian destabilization.

There's no guarantee that Karimov will fall from power anytime soon: these above are simply some of the factors that could lead to it. Karimov, leading Uzbekistan down a path not noted for free democracy and economic progress, is the known devil; the unknown devil that would replace him in Uzbekistan is a big gamble indeed.