Who Can Really Say?

Eugene Volokh has changed his mind:

Mark Kleiman's extremely sensible post has persuaded me that much as some monsters -- recall that we began with a man who raped and murdered 20 children, and progressed to include Eichmann and various other Nazis -- deserve a deliberately painful death, our society's legal system (no matter what constitutional amendments there may be) can't provide it.

What I found most persuasive about Mark's argument was his points about institutions: about how hard it would be for a jury system to operate when this punishment was available, and how its availability would affect gubernatorial elections, legislative elections, and who knows what else. Even if enough people vote to authorize these punishments constitutionally and legislatively (which I've conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them -- much broader, deeper, and more fervent than the opposition to the death penalty -- that attempts to impose the punishments would logjam the criminal justice system and the political system.

Volokh's essentially saying that as emotionally satisfying as it might seem to be to have an extreme-pain-then-slow-death capital punishment system, it actually wouldn't provide much satisfaction at all.

Upon discovering Volokh's 180, Kleiman couldn't resist Blogger Triumphalism^TM sticking his tongue in his cheek and twisting it slowly:

Note that this is no mere factual correction; anyone might be forced to engage in one, though the real Masters of the Web retract as seldom, and as grudgingly, as possible. This is an actual admission by a blogger that he is not infallible.

Such an admission undercuts the entire purpose of blogging, which is the competitive expression of unchangeable opinion accompanied by personal abuse. Without the unchangeable opinion, the personal abuse would be pointless; what value is there in questioning your opponents' intelligence, morals, and sanity based on their opinions if you admit that your own opinions are not unvarying parts of your inmost self, but mere possessions, which you can change as easily as you change your clothing? If a blogger "concedes error," as Volokh admittedly has done, what won't he concede?

Perhaps such wishy-washiness is considered acceptable behavior in Prof. Volokh's ivory tower, but here in the real world it simply will not do. I've defended him in the past, even when we disagreed. But I won't defend him now. His expulsion from the International Association of On-Line Pontificators is a foregone conclusion, and my vote will be cast, albeit regretfully, with what I expect to be the overwhelming majority.

Surely, Tina "Bloggers are the new Stasi" Brown will enjoy Volokh's downfall.