Following a posessive apostrophe with an S

Apostrophe then s, says Andrew Hyman; according to David Lat, Justice Souter agrees ("Kansas's"), but Justice Thomas does not ("Kansas'"). Scalia, uncharacteristically, adopts a skeptical scrutiny balancing test ("it would seem that he believes the extra 's' should be omitted if the existing 's' is preceded by a hard consonant sound"), but I stick with the bright line rule on this: I'm with Justice Thomas on this one. Appending the final "s" has seemed redundant to me, literally as far back as I can recall (which is to say, pre-high school. I don't know if that means I wasn't paying attention in grammar class, or if I was paying attention but refused to learn a stupid rule (I was a wilful child, so either is likely) but I will continue to describe Roberts' opinion as it relates to Kansas' ban on such-and-such.

Plus, it never hurts to have the Chief Justice on your side: see FAIR v. Rumsfeld, 547 U.S. _ (2006), slip op. at 11 n.4, 14 ("The military recruiters’ speech is clearly Government speech"; "accommodating the military’s message does not affect the law schools’ speech"); Cuno v. DaimlerChrysler Corp., 547 U.S. _ (2006), slip op. at 4, 13 ("We have an obligation to assure ourselves of litigants’ standing under Article III"; "no issue regarding plaintiffs’ standing to bring it has been raised") (internal quotation marks omitted); Rapanos v. United States, 547 U.S. _ (Roberts, concurring), slip op. at 2 ("It is unfortunate that no opinion commands a majority ofthe Court on precisely how to read Congress’ limits on the reach of the Clean Water Act"); Sanchez-Llamas v. Oregon, 548 U.S. _ (2006), slip op. at 10, 15 ("Unless required to do so by the Convention itself,they argue, we cannot direct Oregon courts to exclude Sanchez-Llamas’ statements from his criminal trial"; "neither the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression of Sanchez-Llamas’ statements to police").

Aborted terror plot in Germany

Well hang on there! Hang on one second! This must be a hoax! Because as we all know, Al Queda and other similar organs of Islamic terror hate us and seek to bomb us because of our occupation of Iraq, our military presence in Saudi Arabia, our support for Israel and so on, but the Germans don't do any of that. So why would they be a target? After all, when they attack American targets, that makes sense; and when they attacked Spain, that made sense, because the Spanish had troops in Iraq at that time, and a fortiori British targets last year and the foiled attempt this year. But Germany?

Gosh, I guess there just must be some other explanation for why they pick their targets!

V for Vendetta

My wife and I both like the Matrix movies, so we figured we'd give this V for Vendetta movie that the Wachowsky Brothers produced a go; it's alright, so far as it goes, but it's pretty transparent in its aims. The guy (no pun intended) who wrote the original graphic novel seems to have nothing but contempt for the movie, and I think Wikipedia's recounting of his reaction is pretty close to how I felt watching it:

[Alan] Moore remarked that his comic had been "turned into a Bush-era parable by people too timid to set a political satire in their own country.... [This film] is a thwarted and frustrated and largely impotent American liberal fantasy of someone with American liberal values standing up against a state run by neoconservatives — which is not what [the comic] 'V for Vendetta' was about. It was about fascism, it was about anarchy, it was about [England]." He later adds that if the Wachowskis had wanted to protest what was going on in America, then they should have used a political narrative that spoke directly at America's issues, similar to what Moore had done before with Britain.

Out west

I've been meaning to post this for a few days, but Ann Althouse is back from her road trip out west, and has some stunning photos of the badlands. Great photography, but credit has to go to the artist.

The court is hungry

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

Indianapolis library

Interesting story in the IndyStar about the problems building a new extension to their main premises. Lovely architecture, nice integration of new into old, but it's a horror story getting it build.

Better late than never: Fourth of July comments

[Editorial note: I had hoped to have a chance to get this written yesterday, but time did not permit. In any event: better late than never.]

Immigration is a hot topic at the moment, and so it behooves this (legal) immigrant to add but a few words about the Fourth of July.

In some ways, I think that for a time, it puzzles those who are not brought up with the celebration inculcated from a young age why the Fourth of July should have been chosen as the great national celebration. In one sense, the Declaration of Independence did not really achieve anything; it declared independence, but it did not establish it in fact. Not being self-executing, its the proximate effect was simply to convert a confrontation with Britain into an outright war with the superpower of the day. In some ways, it might make more sense for us to celebrate October 19th, 1781, when victory at Yorktown changed American independence from a slogan into an operative reality. Of perhaps November 25th, 1783, when the last British soldiers finally left the newly independent states, in glum defeat. Perhaps even September 17th, 1787, or March 4, 1789, would be appropriate dates to celebrate: respectively, the dates the Constitution was completed and came into operation. We have a plethora of dates we could choose to celebrate as the national day, including the above, any of which have some strong claim to preeminence, yet the Fourth of July - the anniversary of the Declaration of Independence - prevails.

I think that is rightly so, because in another sense, the Declaration of Independence is monumentally important. True, it did not itself make the independence it proclaimed a fact, nor itself form a system of government that has protected its ideals for two centuries in a manner unparalleled in the world. But that document succinctly enunciated the principles which have framed and animated every successive American endeavour, from the battlefield of Yorktown, to a sweltering summer in Philadelphia, and eventually - four score and nine years later - to a man in a gray uniform surrendering in a small Virginian courthouse near the town of Appomattox, thereby definitively answering Lincoln's question as to whether a nation conceived in and dedicated to the ideals of the Declaration of Independence could long endure. It is, in a very real sense, the first, last and only Mission Statement of enduring value ever to be written.

It also matters particularly to me, as an immigrant, because it declares that this new nation is also a new kind of nation: it is a nation that is premised in shared fealty to the values of the Declaration of Independence, rather than ancient blood lineage; it declares that one may become an American, in a way that was unprecedented then, and is still unmatched today. A part of the import of the Declaration of Independence for me, personally, is precisely that I can honestly use that term that I have used throughout my comments here: "we" Americans.

I believe it matters to know what we are fighting for, particularly now, because we are again engaged in another struggle with an enemy who does not share the basic beliefs of the Declaration. It is striking that over two centuries later, we can still point to that stirring prose and say "this is what we are fighting for." Superman might have put it yet more succinctly ("peace, justice, and the American way"), but Jefferson spelled out what the American way is; it is the way of freedom, and that call still reverberates today.

Check the temperature in hell

Good grief: Biden said something intelligent:

"There are certain Democrats who think that this [Iraq] is over, that we've lost or that there's nothing constructive the president is going to do," said Senator Joseph R. Biden Jr. of Delaware, who, like Mr. Kerry, is considering running for president and who sat in on the meetings where Democrats searched for consensus. "What it really is, in fairness to them, is a frustration that they see no learning curve on the part of this administration. I can understand that frustration. But setting a date is not a plan."

A suggestion on how to deal with companies who employ illegal aliens.

As I suggested here, in my view, "[i]f you vigorously enforce the laws against employers, you cut off the source of income for illegals. They therefore have little motivation to stay. Now suppose that, in addition, you fix the problems with the immigration process, and make it possible for them to come back, as legal immigrants, permanent or otherwise: now they not only have little motivation to stay, they have active motivation to go home."

As a general matter, "it is unlawful for a person or other entity to hire . . . for employment in the United States an alien knowing the alien is an unauthorized alien . . . without complying with the [verification] requirements [of this section]." 8 U.S.C. §1324a(a)(1). A person or company can be fined a civil penalty of "not less than $250 and not more than $2,000 for each unauthorized alien" (the fine bracketts ratchet up for repeat offenders, the maximum being $3000-$10,000 per alien for "a person or entity previously subject to more than one [previous infraction]"). §1324a(e)(4)(A).

Under present law, private citizens can "rat out" companies violating this provision to the Justice Department, the Attorney General being required to establish a procedure "for individuals and entities to file written, signed complaints respecting potential violations." §1324a(e)(1)(A), but ultimately, though, it is the decision of the government to prosecute or not prosecute. Now, one of the major complaints that I see almost everywhere in this debate is some variation on the following rubric: "we don't need new laws, we just need to enforce the ones that we have." I don't have any hard evidence to say one way or another if it's true, although given the sheer numbers of illegals estimated to be present, it strains credibility to suggest that all that can be done is being done. But in any event, there is undoubtedly a perception that - for whatever reasons - the government is lax in enforcing these rules, a perception that contributes to the general tenor of the debate (and the lack of trust that Peggy Noonan talks about in her excellent WSJ article yesterday). I think I have a solution.

Down in Texas, Gov. Perry has an interesting idea (hat tip: Jason Mazzone at Concurring Opinions). Perry wants to stick "hundreds of night-vision cameras on private land along the Mexican border and put the live video on the Internet, so that anyone with a computer who spots illegal immigrants trying to slip across can report it on a toll-free hot line." Quoth Perry, ""[b]y leveraging advanced video technology and the power of the World Wide Web, and with an increased financial commitment from the state of Texas, we can make our border stronger and our nation safer." It all sounds more like CBS' Big Brother than Orwell's (although I'd suggest that a closer analog is SETI at Home); in an admirable display of the virtues of federalism, Perry is quoted as saying that "[e]nforcing the border is the federal government’s responsibility . . . But the fact of the matter is Texas will not sit around and wait." It's not perfect ("[w]hat we [really] need is more boots on the ground"), and it carries risks, but in the main, I think it's innovative and clever, not least because it gives an enforcement tool to the groups most interested in enforcement.

Which brings us back to my idea about employment violations,which is in a similar vein of putting the power into the hands of the people who are most enthusiastic about enfoorcing the law. My idea is this: create a private cause of action to allow ordinary citizens to punish violations of §1324a(a).

In other words, append to §1324a a new subsection that reads something like this:

(a) Cause of Action.-- any person aggrieved by the employment by a company of an alien, in violation of this section, may, in a civil action, recover from the person or entity which engaged in that violation, including the United States, such relief as may be appropriate.

(b) Relief.--In a civil action under this section, appropriate
relief includes--
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.

(c) Damages.--
(1) The court may assess as damages in a civil action under this section the actual damages suffered by the plaintiff, and any profits made by the violator as a result of the violation.
(2) The court may assess punitive damages commensurate to the scale and duration of the violation, as deemed appropriate.
(3) In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.
(4) In no event will a company convicted in a civil action under this section be charged less than as provided in civil penalties under §1324a(e)(4)(A).

Way off topic

for some reason, I love this:
http://atlasshrugs2000.typepad.com/atlas_shrugs/2006/05/iraq_loving_thi.html

There's something very neat in the idea that thousands of miles from home, our folks in Iraq are still finding ways to take home with them.

Hat tip: Lorie Byrd.

Ninth circus strikes again

Our caped - or rather, robed - crusaders are at it again, reports Volokh; the Ninth Circuit concluding in Harper v. Poway Unified Sch. Dist. that the First Amendment does not apply to speech of which Judge Reinhardt disapproves.

Unlike many with my views on law and politics, I have not always assumed that the Ninth Circuit always gets it wrong, even when - as in this case - it comes accompanied with a cracking dissent from Kozinski. Indeed, I defended another Reinhardt effort, Fields v. Palmdale School District, back in November (see The other side of the knife, 11/4/05), and three months ago, concluded that another Reinhardt-penned opinion, in Planned Parenthood v. Gonzales, got to the right result, albeit by the wrong reasoning (see Ninth Circuit strikes down Federal Partial Birth Abortion Ban, 1/31/06). None-the-less, in order to make exceptions, there must first be rules, and this case fits squarely into the latter.

I have comments explaining my view on this matter interspersed throughout this thread at Althouse. In short, the problem isn't that the school banned this guy from wearing a t-shirt that took a side in a political debate, it was that they banned one side of that debate from expressing their viewpoint, while permitting the other side to express theirs. This is not only precisely what the Supreme Court has said a government entity cannot do (see RAV v. St. Paul, 505 U.S. 377) (1992) ("[an entity bound by the first amendment] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules"), it is the very definition of viewpoint discrimination.

Light blogging

Blogging is probably going to be light in the next few weeks, depending to some extent on prevailing weather in Indiana; we have much work to do in the garden, and I have a couple of off-blog writing projects to finish up. As before, matters arising will recieve full attention. ;)

Where tax money goes

A fascinating graphic depicting discretionary spending in the 2004 budget. Hat tip: Dan Solove.

The most incredible thing I've read all year

From Roger Waters Online:

Roger Waters has told Italian journalists he may well play again with Pink Floyd . . . "Playing again together at Live 8, doing the old songs, was very moving. For over 20 years David and I maintained extreme positions but now I realise that my behavior was very childish. As in all things one has to find common ground, meet halfway. That's why I can say today that you never know, it could happen."

Intellectual isolation

Here is "The Swanky Conservative" with a post adding notes to this post by Austin Bay, about intellectual isolation in the arabic world. Great stuff.

End of the Tomcat Era

Navy Newstand reports that:

The “Tomcatters” of Strike Fighter Squadron (VF) 31 and the “Black Lions” of VF-213 arrived at Naval Air Station Oceana March 10, ending their six-month deployment with Carrier Air Wing (CVW) 8 embarked on the aircraft carrier USS Theodore Roosevelt (CVN 71), and closing the book on the Tomcat as an asset in the Navy’s war fighting arsenal . . . VF-31 and 213’s “fly-off” marked the last operational flight of the F-14D Tomcat and the begining of the squadrons’ transition to the F/A-18 E/F Super Hornet.

Anti-islamic feeling on the rise

The WaPo reports:

[A] poll found that nearly half of Americans -- 46 percent -- have a negative view of Islam, seven percentage points higher than in the tense months after the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon, when Muslims were often targeted for violence.

On being quoted by Ted Olson

I am not ashamed to admit to being absolutely stunned and thrilled to read The Art of Abortion Politics, Christianity Today, 02/20/2006, in which yours truly is quoted by no less than former SG and (at the risk of turning into A3G) FedSoc megastar Ted Olson:

[In Ayotte, ] [t]he Court attempted to limit the scope of its ruling; the first sentence announces it is not a decision to "revisit our abortion precedents." But as law blogger Simon Dodd suggested on Volokh.com, the 10-page decision could "rather substantially change the environment in which states may enact regulations of abortion, from one in which such actions are mere lip service which will never be enforced, to one in which a state may make and apply reasonable regulations on abortion, even while court proceedings are ongoing." Undermining without overruling.

Justice slumbers

Justice Ginsburg fell asleep during oral argument for the Texas redistricting cases yesterday, reports Expressio Unius; wags might suggest that it hardly matters since it seems unlikely that Ginsburg's vote is unpredictable, but as the author points out, "[w]hile I don't think she should be impeached for the offense, I think it should be taken very seriously . . . [a]nd it would be, I think, if it were someone like Scalia, who the media likes to hound." Foul!, cried a commenter: "Justice Thomas has asked about three questions in ten years. Why not criticize him too?"

Well, perhaps the obvious reason is that there is a major (and obvious) difference between not asking questions, on the one hand, and falling asleep on the other hand; I think it's vaguely ludicrous to suggest parity between a person who participates by listening, and a person who is absent, either in body or mind. Since the opportunity presents itself, though, it's worth reminding ourselves what Brother Clarence has to say about why he keeps quiet:

Why don't I ask questions [at oral argument]? Do you think there aren't enough questions already asked? [laughter] I don't ask questions for entertainment, or to give people a hard time. I have some very active colleagues who like to ask questions; usually, if you wait long enough, someone will ask your question.

Another thing: I was on the other side of that podium before, in my earlier life. And it's hard to stand there, by yourself, and have judges who are going to rule on your case and ask you tough questions. I don't want to give them a hard time.

But anyway, I'm going to give you a more personal reason why, and this is actually the first time I've talked about this. When I was sixteen, I was sitting as the only black kid in my class, and I'd grown up speaking in kind of a dialect - it's called 'geechy', people praise it now, but they used to make fun of us back then. It's not standard English. When I transferred to a white school . . . I was self-conscious, like we all are at sixteen. And the problem was that I would correct myself mid sentence; I'd try to speak standard English, I'd think in standard English, but I'd speak in this dialect. so I learned, I started developing the habit of listening. And it just got to be [a habit] . . . I didn't ask questions in college or law school. I found I could learn better by just listening, and if I had a question, I could ask it later.

For all those reasons and a few others, it's more in my nature to listen rather than to ask a bunch of questions - and they get asked anyway. The only reason I could see for asking the questions is to let people see that I've got something to ask, and that's not a legitimate reason, in the Supreme Court of the United States

Public knowledge of the First Amendment

According to a news report this morning, only one on a thousand people surveyed could name the rights guaranteed by the First Amendment. The co-host starting musing "gee, I don't know that I could name them all...Life, liberty, the pursuit of happiness, that's three of them."

Be very afraid.

Update: via How Appealing, the Chicago Tribune comments on this story:

[The story] that Americans know more about "The Simpsons" than they do about the 1st Amendment . . . should surprise nobody" . . . [yet] at least twice in recent months we've seen how just one of the five 1st Amendment freedoms--freedom of the press--has allowed the American people to obtain information they need in order to perform their role as citizens, as overseers of their government and its activities

More about the FPBAA

Cross-posted at Centerfield.

One of the things that I find most baffling about the litigation surrounding the Federal Partial-birth Abortion Act (FPBAA), 117 Stat. 1201, is the strange unwillingness to kick a conservative when he's down. Last month, when the Ninth Circuit handed down Planned Parenthood v. Gonzales, I complained that the point had been missed:

In reaffirming the Circuit Court's verdict, the panel entirely fails to even consider the question on which any action against FPBAA should turn: did Congress have the authority to enact this statute in the first place? Answer that question in the negative, and the entirety of the litigation thusfar is nullified; it becomes irrelevant whether the act places an undue burden, it becomes irrelevant whether the statute's terms are "unconstitutionally vague," and it becomes irrelevant whether it includes a health exception.

On another blog a couple of days ago, someone (obviously pro-life) pointed out that the Constitution doesn't mention abortion or unborn children, but on the other hand, nor does it mention African Americans, Gypsies, Jews or Hispanics, and no-one would argue that they aren't protected. I sympathize, but the argument is just flat-out dumb. The Constitution may not mention any of those groups, but nor does it mention caucasians. The term used is "persons," and that term is expansive enough to cover anyone considered a person at the time of ratification, so In order to say that the unborn are protected by the Fourteenth Amendment, you must either a) demonstrate that the unborn were considered persons in 1868, or b) abandon originalism in favor of something else.

I believe that it is not difficult to contruct the case that the term "person" used around 1868 could include the unborn. Blackstone writes,

"The right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb ... An infant in ventre as mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours."

What Blackstone didn't know was that a fetus "stirs" 22 days after conception when the heart starts beating.

Mr. FBPAA goes to Washington

Last month, I averred that the Ninth Circuit got it right - albeit for the wrong reasons - in striking down the Federal Partial-Birth Abortion Act (FPBAA), 117 Stat. 1201.

The Ninth Circuit was not alone in reaching its conclusions; on the same day that the Ninth Circuit handed down Planned Parenthood v. Gonzales, the Second Circuit weighed in (National Abortion Federation v. Gonzales), and shortly thereafter, the Eighth Circuit (Carhart v. Gonzales) got in on the game, too. Today, the Supreme Court granted cert in the latter case, Carhart, as its vehicle for looking into the case.

To avoid confusion, for our purposes today, and probably hereafter, we should be clear: if I refer to Stenberg, I mean Stenberg v. Carhart, and if I refer to Carhart, I mean Carhart v. Gonzales. However, the casual reader will not often have cause to wonder, because I will rarely be mentioning the former in connection to the latter. As I explained previously, I just don't see that Stenberg is relevant to Carhart, because - regardless of the issues actually briefed - I see this as a Federalism case. It doesn't especially matter if the FPBAA includes the Casey exceptions that doomed the Nebraska statute at issue in Stenberg, because in my view, the entirety of the FPBAA is ultra vires. Yet one searches NAF v. Gonzales and Carhart in vain for the "F" word: federalism.

This case, of course, will provide Our Hero an opportunity to demonstrate that he isn't just all talk. Scalia has been categorical on this matter:

[I]f a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.

Comments at Volokh, and a general update

There is some discussion going on in the comments section at Volokh that's pretty interesting, talking about abortion, due process, the ninth amendment...The usual sort of thing. I really, really need to get back to doing that Ninth Amendment essay sometime soon... ;)

I was starting to get a bit of burnout at the start of the month, so I kind of decided to take February as a timeout (that is, at least, not trying to do as much as I'd been doing). I've reduced my reading and blogging a lot, kind of left Ninoville on the shelf for a while, been playing with the cats (kitten update II, coming soon) and having some creative fun with recording some music in the last couple of weeks, and I feel a bit better. I'm going to be trying to get back to more serious endeavours after my birthday, which is on Sunday. :)

Design vs. art

One of the many things on which I'm excessively opinionated is web design, and one of my pet peeves is the gradual subordination of functional design to the artistic whims of the people who think web design is their personal artistic outlet. Joel Spolsky has a great article out in draft today, which includes this line:

If you have been thinking that there is anything whatsoever in design that requires artistic skill, well, banish the thought . . . Art can enhance design but the design itself is strictly an engineering problem.

[The book is an] unabashed defense of classical architecture and passionate call for a return to the style in our great buildings. One has merely to open this book to thank his lucky stars that most of monumental Washington, DC was built before the Marxist-inspired so-called "International Style" and its degenerate stylistic descendants inexplicably washed away centuries (nay, millenia) of Western art tradition. It's appalling to read the sort of vindictives that were hurled against the last exponents of the classical style, men like Bacon, Reed, and Gilbert by so-called "modernists" when they designed stunning masterpieces like the Lincoln and Jefferson Memorials, and the Supreme Court Building. And it's galling to see what "modernists" offered the nation as an alternative to classical design: can anyone look at the Museum of American History on the National Mall and not shake his head in sadness? The place looks like an annex to a New Jersey shopping mall.

The sheer nerve of it

This blog doesn't use categories, but if it did, the story of how the peer-to-peer software "Bit Torrent" is suing for trademark infringement would be filed under "are you f*****g kidding me?"

El Reg's introductory paragraph pretty much sums it up: "BitTorrent - which usually finds itself reading lawyers' letters rather than writing them - is going to start taking legal action rather than just being its subject."

This reminds me of one of my favorite cases that I ran across while indexing Scalia opinions for Ninoville: United States v. Munoz-Flores, 495 U.S. 385 (1990). This was a case where a guy was found guilty of Federal misdemeanors and fined under a law (Victims of Crime Act 1984) requiring persons found guilty of such misdemeanors to make a contribution to the Crime Victims Fund; he took the case to the Supreme Court that his sentence was unconstitutional. Why? Because, he argued, the bill had the effect of raising revenue, and failed to originate in the House of Representatives, where - per U.S. Const., Art. I §7 - revenue bills must originate. The cajones on the advocate who had the nerve to present this argument to the Court boggle the mind (ironically enough, I think the advocate in question was Judy Clarke, who went on to represent Susan Smith and the Unabomber - extra points for having cajones above and beyond one's biological complement thereof).

Dissent in the Wild III

I've been feeling in a Pandagon mood recently (I do try to read liberal blogs as often as possible, although as the tone has grown more and more shrill, it's become more and more difficult to do so). In any instance, I have a handul of comments on core values starting here, and some thoughts about judicial activism here. I also have some Ninth Amendment thoughts in this thread at Althouse, and related to my comments about the death penalty and the Allen case earlier this week, I float a thought I've had for a while about the Eighth Amendment and specific modes of execution here; I hope to address both the Eighth Amendment question and the Ninth Amendment question in more detail on home shores soon.

Norquist, Weyrich and others call for NSA investigation

U.S. Newswire is reporting that several prominent conservative voices - including Grover Norquist, Paul Weyrich, David Keene and Bob Barr - have today:

called upon Congress to hold open, substantive oversight hearings examining the President's authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA)."

Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA . . . The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Where I'm at on the death penalty

With the discussion of Allen this week, I feel like saying something about where I'm at on the death penalty.

Unlike my wife, who is very definitely opposed the death penalty, I go back and forth on what I consider to be a very difficult question. I am not convinced by the moral case against the death penalty, and I think the Constitutional case advanced by Justice Brennan et al is ludicrous. However, I do feel that I have arrived, relatively recently, at a new resting point, viz., that my concerns for the reliability of our system of justice are sufficient to make me stop short of supporting it at this time.

Because I have concerns about the miscarriage of justice -- that is to say, the execution of someone who is innocent, rather than the fundamental morality of killing guilty murderers and rapists* -- if the issue were actually placed before me in a way which demanded a choice (a ballot initiative, for example), at this time I would vote to suspend the death penalty for the foreseeable future, or whichever option most closely effectuated that position.

I retain the right to change my mind (and to continue to go back and forth), but that's where I'm at right now, and I wanted to make clear - in light of my objections to the desire to circumscribe the death penalty into practical abolition by the Constitutional route by Justices Stevens and Breyer - that I'm not cheerleading for my own view of penology. Like my objection to the nuclear option, it is not the question of what that I object to, but the question of who gets to make the call.

................
Footnote:

The state of our union is, uh, delayed

Democrats have delayed the Judiciary Committee hearing vote on imminently-Justice Alito, the Post reports, not least prompted (as one candid staffer for the Minority Leader admits) by a desire to minimize the scope of the nomination triumph before the President's State of the Union address. In response, the Majority Leader has annouced that he has cancelled the Senate's recess next week to ensure that the nomination reaches the floor in January; all other business, he intimated, was on hold: "[w]e'll stay on the nomination until the judge is the justice."

Huzzah for the Majority Leader, but it got me wondering: if the Dems' game is to push the confirmation back behind the State of the Union, why doesn't the President simply declare that the State of the Union address will take place the week following Justice Alito's confirmation?

After all, neither the date nor the form of the State of the Union are required by the Constitution nor by statute; its timing ("[i]t has occurred in January except for 6 occasions in February since 1934," notes Wikipedia) and verbal nature (it was delivered as a letter rather than a speech, from the Jefferson Administration until the Wilson Administration) are the product of tradition. Traditionally, nominees as qualified as Judge Alito have been confirmed in a timely manner, so if the Democrats are happy to throw tradition to the wind, perhaps we should consider joining in the fun?

Allen, redux

Discussing the Allen case yesterday, I suggested that "I doubt Mr. Allen will have much luck with the court, [but] it might be worth watching the orders list tommorow to see if the court actually takes the case, and if not, if anyone other than the two Justices we have already seen to be interested in this case dissent from the denial of cert."

Oops, it looks like we should have watched yesterday's orders list. The stay of execution requested in Allen v. Ornoski was denied by O'Connor (Circuit Justice, 9th Cir.), over a terse dissent from Breyer, noting that "I believe that in the circumstances [Allen] raises a significant question as to whether his execution would constitute "cruel and unusual punishment . . . I would grant the application for stay of execution." Breyer cites both Elledge and Lackey, but also another of his dissents from denial of cert, Knight v. Florida, 528 U.S. 990, 993 (1999).

Normally, I would have added the foregoing as a post facto insertion into yesterday's post, but the citation of Knight suggests that perhaps a further post is required, since I didn't talk about that yesterday. Knight, of course, jumps out at me because it's the case that Breyer and Our Hero sparred over a year ago during a colloquy at American University.

Here's how Breyer decribed it a year ago:

I wrote a dissent that [Scalia] thought was totally wrong, and it was in from a denial of cert, and the question was this: Is it a cruel and unusual punishment to keep a person on death row for more than 20 years before executing him? Well, I said we should hear that case, and I wrote an opinion that suggested a dissent, that I thought this was quite likely, it could quite possibly, the answer to that question would be yes. But cruel and unusual punishment - now, where do I look? . . . I don't look to myself. I mean, can I jump out of my own skin? No. No human being can. But let's see what's around. And of course I wrote this thing -- not too convincing -- but I found opinions in the Privy Council in England . . . [and from] India, they've written a pretty good opinion. There was one in Canada. The U.N. had discussions on this. And they weren't all one way. And I cited things the other way too, anything I could find.

And then I think I may have made what I call a tactical error in citing a case from Zimbabwe - not the human rights capital of the world. [Laughter]. But it was at an earlier time [and] Judge Gubei [ph] was a very good judge. So I had written this. And of course I looked - I don't think that's controlling. But I'm thinking, Well, on this kind of an issue you're asking a human question, and the Americans are human, and so is everybody else. And I don't know, it doesn't determine it, but it's an effort to reach out beyond myself to see how other people have done, though it does not control.

Now, Justice Thomas then - disagreeing - wrote another little scrib, and he said, You see? Breyer is so desperate he can't find any American precedent -- [laughter] -- so he has to look to Zimbabwe. Now, again, there is a certain point in that.

Allen - the next in the Atkins-Roper line?

"Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."

"Though novel, petitioner's claim is not without foundation. In Gregg v. Georgia, this Court held that the Eighth Amendment does not prohibit capital punishment. Our decision rested in large part on the grounds that (1) the death penalty was considered permissible by the Framers, and (2) the death penalty might serve two principal social purposes: retribution and deterrence . . . It is arguable that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death . . . [and] [s]uch a delay, if it ever occurred, certainly would have been rare in 1789."

"The Eighth Amendment forbids punishments that are 'cruel' and 'unusual.' Twenty-three years under sentence of death is unusual—whether one takes as a measuring rod current practice or the practice in this country and in England at the time our Constitution was written."

"[W]e [cannot] withhold our conviction of the proposition that when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place."

Dissent in the wild II

• More about advice and consent, and generally about Roe and the confirmation hearings, at Centerfield


• Various comments at a WaPo blog, defending Alito and the FedSoc


• More of the same, at Althouse


• Talking about abortion regulations, at confirm them


• Similar themes, at Volokh


• Reconciling textualism and bilingualism, at Prawfsblawg

Comments and random musings

Some comments:

• Talking about Originalism at ConfirmThem...
• Talking about a Condidacy at Alhouse here and here.

Informal politics

I'm intrigued by this article on the Accuracy in Media website, not least because it plays to my own prejudices. Its argument is that politics has become too informal, too slacks-and-polo-shirt; hence, the Vice-President of the United States likes to be called Dick Cheney, rather than Richard B. Cheney; The President pro tem of the Senate goes by Ted Stevens, not Senator Theodore F. Stevens of Alaska, with the dignity that might entail. It's a minor thing, and I really don't think it's the most salient factor in the decline of civility in politics, but I do rather agree that formality has a place, and no place more so than in government.

Underage suffrage proposal in Britain

The organization “Votes at 16,” which militates for a virtually unprecedented expansion of the franchise, reports that the British Parliament will take up a vote on the matter in January.

You'd think that they would spend more time actually trying to establish that their outlanding and unprecedented proposition is a good idea, really, but the closest to a substantive argument in favor of expanding the franchise that I can find on their website is a 2003 report by the Electoral Commission, entitled How old is old enough? The minimum age of voting and candidacy in UK elections. I dash off an off-the-cuff critique, available in draft form, here (link is to PDF).

Downtime

The blog was evidently down from sometime saturday AM until just now. Stuff happens.

Posting has been light, lately, and I'm aware that there are actally a number of things still outstanding which may or may not make an appearence by the end of the year. My "once and for all" discussion of the ninth and tenth amendments is not now likely to appear until next year, while Answering for Alito (part 2) will appear in the next couple of days, along with an even-longer delayed comment on the difficulties of finding common ground on abortion regulations (this latter one has actually benefited from the delay, since some additional factors have made their way in since I first drafted it).

Kitten update 12/12/05

Good show, Breyer

Justice Breyer, interviewed by Brian Lamb. Really appreciated this response from Breyer:

LAMB: Let me ask you this. You hear some justices talking about being an originalist . . . [a]nd fundamentalist believers in the Constitution as it was written . . . But the Constitution has been amended, and that doesn‘t mean – the forefathers in many cases didn‘t write those amendments.

BREYER: That‘s true. But someone did. And the textualists or the originalists will go back and try to do the same thing for the amendments that he does for the original part. And he will say, what was the history of those amendments? He won‘t deny that the amendments are part of the Constitution. And he will apply the same approach.

The arc of Conservative Washington

I'm always fond of pithy little epigrams like the one Slate offers today, almost by accident, while discussing what is almost indisuptably deepening corruption in Washinton:

Reagan and company arrived to tear down the government and make Washington irrelevant. Now the airport and a giant warehouse of bureaucrats are named after him.

Pilgrim's Progress, it seems.

Housekeeping

In the vein of tidying up - I had previously contributed a lot of material to the Wikipedia entry on Originalism, but had left the entry largely alone for some months, and in the meantime, it's gotten rather bloated and messy. Over the next couple of weeks, I'm going to tidy up the article, and add some more material into this and related articles.

I had also underestimated just how widespread and persistent the false conflation of originalism with original intent has become; I have therefore created an entirely separate article for original intent.

I'm continuing to add cases to the Ninoville database, and in Jaunary will begin working on a new project that parallels the work at Wikipedia, originalism.org. Anyone interested in helping out with this one, drop me a line.

I should also add that, back in June, I created a page for the living constitution theories; I created a framework and presented opposing arguments, and suggested that the article should (and must) be balanced, but that doing this would require someone who thinks the theory is a good idea (or, at least, who doesn't see it as quite so invidious as I do). Several other wikipedians agreed that this was important, some going so far as to asy that they like the theory, but don't feel qualified to add defenses themselves. As of this date, five months later, not one person has contributed anything positive in the defense of the living constitution. How long does it have to flatline before we can call it?

More comments

Haven't done one of these for a while...

• Various comments at ConfirmThem about the Nuclear Option, redux (about which, more soon) and a brief defense of Sen. Olyympia Snowe's (R-Maine) votes in the last nuclear standoff.
• More about Roe and Alito here at Althouse
• A couple of comments at Volokh about originalism and stare decisis
• Discussing the First Amendment
• Wide-ranging discussion at Centerfield, touching on abortion, Miers, and all the usual judicial stuff I like to talk about. ;)

Speaking of Justice Kennedy...

Orin Kerr tips us off to an interview with Kennedy.

If you don't feel like wading through five pages of Anthony Kennedy, here is the summary, courtesy of Southern Appeal.

Update: New year's resolution: I will close my < a > tags, I will close my < a > tags...

Mr. Justice Alito!

My first last and only post on "plamegate"

I have not followed the actual "plamegate" story, insofar as it appeared then and appears now the summer silly season's second least-interesting non-story (just behind the summer's least interesting non-story, sheehangate. For those counting, the other three contenders in the top five "least interesting non-story" were: lettermangate (he just isn't funny any more), kittengate (a bit of an anomaly this one, in that it was actually of interest, relatively speaking: one of our kittens nearly died and spent four days in hospital) and dessertgate (I just couldn't work out whether I wanted pudding or cake).

In any instance, I read today that there is, in fact, no need to follow the actual story. The indictment of Scooter Libby does not relate to the crimes the Grand Jury was charged with investigating, but rather, Libby's conduct in relation to that inquiry, namely, perjury.

How apt. There may or may not have been an original crime, but in the course of the investigation, crimes were committed for which indictments were issued. Doesn't this all sound rather familiar? High government official caught perjuring himself before the grand jury? Why, yes, it does! In any instance, I argued that Clinton should have been impeached (indicted, even) for perjury, so I can hardly now say that Libby shouldn't be indicted. On the other hand, no liberal can really say that he should go to prison, since Bill didn't exactly serve a sentence (although, in fairness, I would argue that being President of the United States probably does constitute cruel and unusual punishment for any sucker dumb enough to take the gig).

I respectfully decline the invitation to join the (apparently, group) hallucination that this business is actually interesting.

The anti-war lexicon

I can't resist re-posting these translations from The Fast Squirrel:

Handy Dandy Translation Guide For Anti-war Protestors

Nuance: Opposition to United States policy. Often expressed in simplistic terms.

Peace: The complete lack of action from the United States no matter how many must suffer or die.

Dissent: Wearing costumes.

Crushing of Dissent/McCarthyism: Publicly disagreeing with someone more noble. Publicly pointing out flaws in the arguments of those more noble.

Censorship: Only appearing on TV 5 times a week instead of the full 7.

Days of Action: Movie where Tom Cruise met Nicole Kidman.

Facts: Things that get in the way of Truth.

Truth: Something that must be believed regardless of facts. Example: 5,000 civilians were killed in Afghanistan. Did not actually happen, but the US wanted to kill that many and more so that means it is truth.

Racism: Thinking non-whites shouldn't have to live under oppressive, murderous tyrants.

Solidarity: Public nudity to tell those who would be stoned for public nudity that, hey, we care because we're naked.

Multilateral: Doing what the French want.

Unilateral: Going forward without the support of the New York Times.

Oil: When it ain't the Jews, it's this.

Militant: Anyone who kills a member of the oppressive power structure.

Addenda

Bidisha Banerjee at Slate writes:

the desire of Bush followers to have O'Connor replaced before the Justices take up the new abortion cases on Nov. 30 appears to have been frustrated by Miers' withdrawal."

Finally - a nominee with a paper trail!

President Bush nominates Ben Bernanke (Official bio) as Chairman of the Federal Reserve Board. This nominee has actually served in positions relevant to the post to which he has been nominated, and has written stuff! Huzzah!

Just a bunch of noise on the fringe?

National Center's Amy Ridenour has posted an utterly glorious transcript of a hapless White House staffer falling afoul of Tucker Carlson's wrath. The WH drone made the unfortunate mistake of suggesting that opposition to Miers is a fringe activity of the "far right" (yes, this guy works for the Bush White House, not the previous one). One reads this sort of nonsensical puffery routinely in recent weeks from the pro-Miers camp, but instead of reading it and then reading eloquent demolitions on blogs, what makes this example spectacular is that Carlson absolutely eviscerates the WH drone, there and then. Great stuff, and well-worth the click.

A couple of interesting things from this morning's news

John Podhoretz writes:

Having read through the Miers questionnaire supplied to the Senate Judiciary Committee, I note with shock that in a legal career that lasted more than 25 years, she argued 8 cases before juries: "I have identified eight cases that were tried to verdict. I was lead counsel or sole counsel in four, lead local counsel in one, and associate counsel in three." That number again: 8. Eight. E-I-G-H-T. Turns out that the number is pretty important in Miers's career, since it's exactly the same number of cases she dealt with at the appellate level as well.

Her entire combined courtroom experience in the course of her long career: 16 cases. Thus does the last prong in the Miers defense -- that she will bring real-world lawyering experience to the bench -- collapse like a house of cards.

I feel like George Jetson: Jane, won't somebody stop this crazy thing?

Mr. Goldstone doesn't say what he would have had these "highly pragmatic men" do instead, given the reality of slavery in some of the states. He admits that, "had idealism dominated in Philadelphia," there may never have been an America at all. He observes that Gouverneur Morris, Rufus King and John Dickinson--principal northern figures--"seemed willing to pay almost any price for union." Such a willingness makes them sound positively Lincolnesque, but Mr. Goldstone evidently disapproves. If he knows how they could have paid a lower price, he again doesn't say.

Another round of "spot the difference"

Given the departure of the Supreme Court from the Constitution in recent decades, one of the key questions for any nominee thereto is their attitude towards the doctrine of stare decisis.

"Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling." (Senate Judiciary Committee, Questionnaire answers of Harriet Miers, nominee to the Supreme Court of the United States, p.56

"It has been argued that we should not overrule so recent a decision, lest our action appear to be occasioned by nothing more than a change in the Court's personnel, and the rules we announce no more than the opinions of a small group of men who temporarily occupy high office.

"I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face...I agree with Justice Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.' Or as the Court itself has said: '[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.'" South Carolina v. Gathers, 490 U.S. 805, 824-5 (1989) (Scalia, J., dissenting) (Internal citations and some quotation marks ommitted)

On the Miers/Powell comparison

Patterico offers these thoughts about why Justice Powell was a nice guy and a bad Justice.

Two interesting things

More-or-less interesting, at least. An awesome post entitled Why Originalism is Not Strict Constructionism (found via Technorati search) and a quick roundup of a CNBC interview with Scalia notes that "I’m not even sure I wanted [the Chief Justiceship], to tell you the truth", worrying - as David Wagner noted recently - that it would detract from his writing and thinking time.

Lastly, this article eloquently offers more thoughts on the bitter taste of the Miers nomination.

............
Post facto: Profs. Althouse and Bainbridge are pointing out that the conflation of strict contructionism with originalism is false and has been explicitly rejected by Scalia a number of times, in print and in speeches.

On the value of intellectual firepower

Another post that was originally written as a blog comment.

Sam Brownback just won a campaign contribution

Story.

Kansas Republican Sen. Sam Brownback has said he would consider voting against the nomination of Harriet Miers to the Supreme Court even if President Bush made a personal plea for his support.

My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them.

Meanwhile, on the other side...

Tony Blankley couches a call for patience and trust for Bush's judgement in attractive prose.

In favor of elitism

A commenter over at Althouse (not me) offers a pretty good rebuff to the "stop being elistist" objections:

[L]et's say you have to choose between two doctors for a heart surgery, you don't know anything about either except you get your hands on their medical diplomas. One graduate with honors from Johns Hopkins, the other was a graduate (no honors) from a second (or worse) tier school. Which do you choose if that is your only information?

Another reason to be concerned

I'm reposting this from Volokh, where I posted it as a reply.

The Miers nomination: day two

I offer comments about Miers over at Volokh and Patrick Ruffini's blog (1, 2). I read a great takedown of Hugh Hewitt by Professor Bainbridge.

As mentioned yesterday, I'm trying to avoid explicitly rejecting this nominee, because you never know what might turn up in the next few weeks. But when Senator Cornyn (R-Tex), who has "known her for fifteen years" says that "She is obviously not a Scalia or a Thomas", I think it's safe to say which side I'm leaning towards. After the ghastly performance of the Democrats during the Roberts hearings - during which they appeared to display an almost complete failure to grasp what the Supreme Court is actually supposed to do - I'm inclined to agree with Aaron Margolis that "Whoever the Democrats don't want is who we want. Anyone they would label as 'radical' or 'fringe' or 'out of the mainstream,' that is who I want." Margolis goes so far as to call for Miers to be borked by Republicans; I'm not quite willing to go that far yet, but I'm leaning that way.

The first Ruffini comment is actually something I want to think about and maybe later expand upon, but I offer it here anyway in its current form:

Originalism is a process-oriented judicial philosophy which is not especially concerned with whether the results are conservative or not. It is a judicial philosophy that is a happy bedfellow to Republicans, because the Republican philosophy is deeply rooted in the same history of the Republic's limited government constitutionalism that originalism venerates; in recent years, though, as *some* Republicans have shifted their philosophical ground away from a system which can be reconciled against the original understanding, they have found that the originalism less-and-less confirms their agenda. See, for example, Scalia's dissent in Hamdi, Thomas' dissent in Raich, or the refusal of the federal courts to get involved with Ex rel Schaivo.

Originalists tend to restrain government, because the constitution is explicitly designed to make government more difficult for the governors. It seems to me that President Bush is determined to put conservative judges on the court, and is well aware that as the conservative majority emerges and solidifies, if the court places limitations on government, that will de facto limit the conservative movement. I fear that the GOP has been but a fairweather friend to the original understanding; the concern is not that Harriet Miers is a blunder, the concern is that the President knew exactly what he was doing.

As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel.

In re Harriet Miers

I know very little about Ms. Miers beyond what I've read in the news and blogosphere this morning. In general, in the absence of readily-available evidence to the contrary, I must tack towards caution. I therefore join the opinions of Prof. Zywicki and Article III Groupie in full, and the opinion of David Frum in all but ¶¶1-2.

Prof. Zywicki writes:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture...Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right."

GOP spending

Over at GOPbloggers, Jon notes an article by Brendan Miniter at Opinion Journal criticizing the GOP's incontrollable spending urge since the departure of Newt Gingrich. A commenter attacks Jon and Brendan for stating the patently obvious, (viz., that "[w]e can futilely try to be apologists for Republican spending, which will lead inevitably to electoral defeat, or we can nip it in the bud to preserve our control of Washington"), observing by inference that "28 billion in [highways bill] pork in a 2.4 trillion dollar budget" really isn't that much, and asking "[w]hy the hell should you spend your time attacking Democrats...[when] you've got Republicans to slay here at GOPbloggers!"

Another politics test...

I don't know that this is entirely accurate, but what test ever can be? Still fun.

You are a Social Moderate (41% permissive) and an... Economic Moderate (56% permissive) You are best described as a: Centrist Link: The Politics Test on Ok Cupid

Less nebulous than you'd think

I'm playing catchup. I started writing four essays during August, set them aside for a couple of weeks for a chance to revisit them fresh, and then got too busy to do much with them.

The first of them is "Less nebulous than you'd think", a rejoinder to some accusations made about originalism by a poster over at Prawfsblawg.

• Less nebulous than you'd think

Comment

Comments at Centerfield about substantive due process and the role of the courts. Links to comments foreign law. Some comments on abortion and a follow up regarding Balkin's horrible originalism essay. Comments at Althouse about the meaning of the tenth amendment and respectfull dissent in the wild at a random blog I found my way to about the lessons of Dred Scott.

We haven't forgotten you, Afghanistan

KABUL, Afghanistan -- Afghans embraced democracy by the millions yesterday, with voters undaunted by weeks of violence and threats of terrorist attacks to cast ballots for the first elected parliament in decades. The vote went smoothly, with only a handful of incidents involving gunfire or militant attacks at the 6,200 polling stations...With more than 12 million voters registered, election officials said 80 percent to 85 percent cast ballots -- an unheard-of turnout in Western democracies.

More comments

Some lengthy comments on the rights/ninth/tend issue and some comments about first principles. Also, comments on foreign laws and precedents.

Detention of citizens in wartime (or, Hamdi, redux)

In April, I wrote to disagree with the Supreme Court's ruling in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In that case, the Court was "called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an 'enemy combatant' and to address the process that is constitutionally owed to one who seeks to challenge his classification as such." Writing for the Court, Justice O'Connor "conclude[d] that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Although the Court insisted that Hamdi was entitled to appeal, it did not hold that his detention was unlawfull. Justice Scalia, joined by Justice Stevens, wrote a dissent that I find pursuasive, for the reasons previously outlined in April.

Today, the U.S. Court of Appeals for the 4th Circuit hands down a ruling (link is to PDF file) in Padilla v. Hanft, which relies in large part on Hamdi to conclude that the unlimited military detention of another U.S. citizen (unlike Hamdi, unquestionably an active Al Queda member) is also legal. As in Hamdi, I find this line of thinking discomfiting.

This case, in my mind, revolves around a single question: Is Padilla a citizen? Unless he has renounced that citizenship, he may not be deprived of it. Perez v. Brownell, 356 U.S. 44 (Warren, C.J., dissenting); accord United States v. Wong Kim Ark, 169 U.S. 649, Osborn v. Bank of the United States, 22 U.S. 738 (1824). If he is, he should be prosecuted for treason per U.S. Const., Art. III §3 and 18 USC §2381. As Justice Scalia explained, dissenting in Hamdi:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.

The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war

Wagner on Nino for Chief; my concerns vis-a-vis Roberts

Prof. David Wagner of Regents Univ. School of Law sums up my thoughts on the non-appearence of "Chief Justice Scalia":

A student asked me this morning whether I was disappointed that Our Hero didn't get the nod for Chief. No, and for the same reason I never thought he would be chosen. The job doesn't play to his strengths at all. It would pressure him to get "moderate," as it did to Rehnquist; and it comes with a bag of administrative responsibilities that would unacceptably divert him from his mission of explaining the Law and proclaiming the Truth.

Comment roundup

Some recent comments:

• Defending originalism on some blog
• And a follow-up!
• Discussing incorporation at Volokh;
• Discussing first amendment incorporation lower in the same thread.
• Dissenting re implied rights
• Discussing Trop
• Objecting to Jack Balkin's "living constitution" comments

"He was my friend long before he was my Chief. May he rest in peace."

Fairwell to the Chief. SCOTUSblog is carrying reactions from the Associate Justices to the untimely death of Chief Justice Rehnquist. A fond farewell to the Chief by one of his former Law Clerks, today in Slate.

Shamefull writing by Balkin

Jack Balkin wrote an article on Slate today. Aghast at what I saw as "a duplicitous flight of fancy between absurdity and the furthest reaches of falsehood; a barely-coherent combination of half-truths, bifurcation and false conflation (wherever it best suits his agenda), led by a veritable platoon of straw men", I penned an incandescent dissent spread across Balkins's blog and Volokh. I also added comments at PrawfsBlawg. When I've calmed down somewhat, I might try to put these into a calmer response, but in the meantime, Tim at Postive Liberty has taken the time to pen a more temperate rebuttal. I commend Tim's rebuttal, and can only shake my head at the depths the living constitutionalist must plumb to propagandize. I suppose I should take heart; this is truly thin gruel, and if this is the best they've got, they've lost the argument.

If Microsoft made Vi

Link.

The recess appointment power: not so fast

President Bush today sidesteps the Senate, appointing John Bolton as UN ambassador via his recess appointment power. As an originalist, something about this strikes me as slightly unsettling, but it's not the same thing that's probably troubling democrats.

I had to go back and check the text more specifically, but something strikes me as being a little off here. The clause (Art.II §2 Cl.3) says:

"The President shall have the power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which shall
expire at the end of their next session."

The burning issue

Centerfields today notes an incident in Ohio, where:

Less than 24 hours after a Tri-state soldier was buried, someone pulled up 20 American flags from his father-in-law's front yard and set fire to them under a car in the driveway.

It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival.

The value of the flag as a symbol cannot be measured. ...Conceivably that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States as ultimate guarantor of that freedom is without power to prohibit the desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly...sanctioning the public desecration of the flag will tarnish its value - both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression - including uttering words critical of the flag - be employed.

"That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.

...It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation;1 and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. (III J. Story, Commentaries on the Constitution §1874)

The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

Two more comment threads

I have some relatively lengthy comments in two threads:

• At PrawfsBlawg
• At ACSblog

Roundup 7/20/05

I've made a couple of comments today on the Roberts nomination in various places:

• Why the Democrats are having problems framing a response, and what a compromise means, anyway


• A few specific concerns, r.e. Hamdi and philosophy


• Disagreeing with the ACS over the scope of Congressional power, and why Roe and Kelo offer irreconcilably opposed visions of what a constitutional right is.


• The value of Roe as a litmus test


• General comments over at Centerfields

Scalia and consistency

Nice blog posting here, asking whether it really matters that Nino isn't always a model of sticking to originalist principles.

Roundup 7/13/05

Various comments I've posted on blogs recently:

• Discussing judicial activism, and rejecting the NY Times' definition thereof.
• Follow-up to above, and general discussion of Originalism v. Living Constitution.
• Kelo v. New London, and how constitutional rights relate to constitutional prohibitions.
• As above.
• Various comments on the Supreme Court, including more on Originalism
• Dissenting from simplifying the amendment process.
• More on using Foreign Law, including reference to pre-revolutionary English common law.
• Excoriating Soutero Gonzales, and discussion about why the courts are paramount to the Bush base.
• More on originalism v. the living constitution.
• About the second amendment and judicial review

Strange matters afoot in Kentucky

This was reported no our local news, but the WashTimes has a fairly similar precis:

http://washingtontimes.com/upi-breaking/20050602-041412-9855r.htm

I will write more about this once I've had a chance to review the relevant materials, but in summary: Kentucky requires six year residency for State Senate candidates; the winner of an election last fall had been a resident for a little shy of six years. A Judge voided her candidacy post facto and declared her opponent the winner; the Kentucky Senate begged to differ, claiming that the Constitution permits that body to determine the results of elections, and promptly seated woman who won the election. Bizarre stuff.

GID - thoughts

A poster who identifies themselves as a female on a message board I frequent has "come out" (if that's the correct term for these things) as a "pre-op male-to-female transsexual". I have to admit that transexuals - like bigamists - are one of the few areas where my tolerence for, shall we say, alternatives, fails me. This being a posible learning opportunity, I noted:

[M]y instinct when someone expresses desire for gender realignment would be that they seek the help of a medical professional, as in a psychologist, not a surgeon. I'm sorry you have these problems, but I believe that we're born male or female, and I don't believe that we can change that, any more than we can change our ethnicity.

For much the same reasons, I don't agree with your premise that you were "born in the wrong body" either - you weren't "born in the wrong body", you were born in the body in which you were born - which is, by definition, the right one. It's true that male and female brains are wired differently, (See, e.g., Steven Pinker, How the Mind Works; Barbara & Allan Pease, Why Men Don't Listen and Women Can't Read Maps), but it's generally agreed that there is a wide range of variance and crossover. For example, according to the Pease test (Pease, supra, at 57-66), my brain is more female-wired than my mom's, and my mom's brain is more male-wired than either mine or my dad's. All four of the immediate family (my sister is more borderline than the rest of us) are on the "wrong" side of the line for male vs. female wiring. Does that mean that we were born in the wrong bodies? Nope. Does it mean we should go to therapy? Nope. Does it mean we should undergo gender reassignment surgery? Nope. It means that we were born how we were born, and that's that. There is no such thing as "the wrong body"; there is only what you're born with.

Lastly, I reject your comment that "transsexuality can't be 'cured'", insofar as, in my view, "curing" implies that there's something inherently "wrong" in the first place, which I simply don't subscribe to. Depression, or any number of other psychological disorders, are a function of the mind, and they are certainly real to the people experiencing them, but we treat people with depression with psychological help; we don't deal with acoholism with a nice big bottle of bourbon and a friendly wave, and so it seems to me that we shouldn't deal with gender idendity disorder with surgery.

If you can point me to some studies which contradict this view, I'd be willing to read them, but my viewpoint on this is that it isn't a question of tolerance; rather, it's a question of sympathy for people who have a psychological affliction, and ensuring that they get the help they need. We don't "tolerate" people with schizophrenia or Borderline Personality Disorder - we help them.

Rather, transsexuals take such drastic measures because they feel so strongly and consistently that they should have been born the opposite sex

Rates of occurrence of known female-to-male transsexuals are significantly lower, typically being around 1/3 to 1/4 of the rate for male-to-female transsexuals.

There are many and varying family circumstances which may be partly responsible for transsexuality. As for homosexuality, a late birth order is common (Blanchard et al., 1996). It appears that being late, or last, in a family of children is often not optimum. A child may receive less attention from parents, and other siblings may well be dominant. Rather unusual family conditions have sometimes been implicated (Rekers, 1996) In an NIMH program, a survey of 70 clients found no obviously physical symptoms (except one case of an undescended testicle) but 80% of the mothers and 45% of the fathers had psychiatric problems of various types which are very high incidences. For the most gender dysphoric, in all cases the father was absent. Overall in 54% of cases the father was absent, and in 37% of cases there was no adult male role model. If a father or role model was available, in 60% of cases he was psychologically distant. Another common factor was frequent ineptness at sport. The latter can arise from lack of physical co-ordination, but will have strong psychological effects in the highly competitive world of growing boys. Thus there are a constellation of social factors probably involved.

In some cases (pers. comm. J.Leach) sexual abuse may be involved. As in homosexuality, particularly for those subjects in clinical settings, rates of 80% have been recorded."

The question whether transsexuality is determined, i.e. innate, inescapably forced on people, is best answered by two paths (a) do identical twins always both have the condition? (b) is any change through therapy possible? ...For transsexuality (a rarer condition than homosexuality) far fewer twin data are available. There is one case (Garden & Rothery, 1992) in which a female to male identical twin pair was discordant for transsexuality. Another study showed (Buhrich et al., 1991) that 3/4 identical twins were discordant. These are very small samples, but certainly show that in a significant number of cases transsexuality is enforced neither by genes nor environment.

Neither is the condition unalterable psychologically. Personally known to the author (who has not sought out such cases) are three males who have decided they are not after all women in men’s bodies, and have instead cultivated their masculine side with good success.

This shows that gender characteristics apart from the sheerly physical ones are socially constructed and deliberately cultivated. The data also show that homosexuals and transsexuals are within the normal masculine/feminine range of the trait under study, for their gender. Thus, although they are more feminine than average, they are hugely outnumbered by the heterosexuals who are as feminine as they are. Although transsexuals would like to think of themselves as physiologically different, the differences are within the normal range for their sex, and the belief is clearly psychological.

WallyWorld and free trade

PBS' Frontline just ran a marvellous commentary on Wal*Mart and the pernicious effects of free trade with China. As one of their economists noted, "this ruthless trend of lower prices would be marvellous if we were just a nation of consumers - but we're not, we are workers, too". Or, as I've put if before, "every time you see one of those "rollback" stickers, it means another American lost their job".

I actually don't have that much of a problem with Wal*Marts "pushy" business model, my objection is to the influx of low-cost Chinese goods in a manner that can't be competed with by American companies. Competition on a level playing field is always fine; competition from Chinese manufactured - unfairly unencumbered by many restrictions on US manufacturers - and its blessing by the US Governmen is unforgivable. Yet another unfortunate lapse of Clinton's administration that has unfortuntely - if anything - gained momentum under the current administration.

See also my comments here about CAFTA.

Chairman Dean

An update on Chairman Dean's problems:

Dean's real problem may not be his mouth but his mind-set. He and his aides seemed genuinely mystified at the idea that his characterization of the GOP was a political mistake. But by labeling the other party a bastion of Christianity, he implied that his own was something else—something determinedly secular — at a time when Dean's stated aim is to win the hearts of middle-class white Southerners, many of whom are evangelicals.

CAFTA passes US Senate

Just a quick update; the Senate voted 54-45 to pass CAFTA. Sen. Olympia Snowe joined 12 Republicans in voting "no". Major kudos - albeit belatedly - to Sens. Burns, Collins, Craig, Crapo, Enzi, Graham, Shelby, Specter, Snowe, Thomas, Thune and Vitter. If any one of these folks represent you, your Senator is earning their keep.

See previous entry 6/10/2005 and recent comments at Centerfields.

CAFTA again

http://www.reuters.com/newsArticle.jhtml?type=politicsNews&storyID=8759736

There is a chance - a very, very slim chance - that CAFTA could be beaten. Not only is it some 30-40 votes short in the House, but, although it is likely to be confirmed if it reaches the full Senate, it is possible - very unlikely, but possible - that, because of the membership of the Senate Finance Committee, that the bill could be strangled in the Finance Committee. The hearing is on Tuesday. www.capitolhearings.org

See further comments I made on Centerfields:
http://www.centristcoalition.com/blog/archives/002202.html

Pat Buchanan on CAFTA:
http://amconmag.com/2005_05_09/buchanan.html

More on the EU constitution's ratification failure

What an astonishing comment by Jack Straw:

In an emergency statement to MPs in the Commons, Mr Straw said: "Until the consequences of France and the Netherlands being unable to ratify the treaty are clarified, it would not in our judgment now be sensible to set a date for second reading."

The chief, and possible next chief

USA Today carries a fascinating AP story today profiling Chief Justice Rehnquist, who is expected to retire at the end of the term. The latter story, incidentally, tips Judge Michael McConnell as a possible successor.

SCOTUS will hear abortion case

Reported today in The Washington Post, and as previously reported on SCOTUSblog, the Supreme Court will "consider whether laws requiring parental notification before a minor can get an abortion must make an explicit exception when the minor's health is at stake. More broadly, the case concerns the standard to be used by courts when reviewing the constitutionality of abortion laws." The opinion of the 1st Circuit U.S. Court of Appeals in this case can be found here (PDF format).

Pat Buchanan and filibusters

I originally wrote this as a reply to Empresskara, who posted some comments from Pat Buchanan over the judicial battle, but alas: my "comment of 6413 characters exceeds the maximum character length of 4300". So it's going to have to be a (semi) full-fledged post here.

I dissent strongly from Pat on this point, both procedurally - q.v. my comments 2005-05-03 - and substantively. See brief comments 2005-03-25 and even briefer, 2005-03-31. I did write at more length about this, but it looks like I never got around to posting it, so I'll have to try to search that commentary out. I also previously posted a link to Buchanan's contemporaneous comments regarding Terri Schaivo, viz.:

...Conservatives are hypocrites, they charge. The Right opposes judicial activism and preaches states' rights. But in Terri's case, the Right clamored for judicial activism and rejected states' rights.

But this is absurd. The judicial activist in Terri's case is Greer, who sentenced a brain-damaged woman to death by starvation and dehydration. If this is not judicial activism, in violation of a citizen's right to life, due process of law, and not to be subjected to cruel and unusual punishment, what is?

"Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of pwoer dangerously disorders the whole framework of the state."

RIP "the public interest"

Nathan Glazer, writing a farewell address for The Public Interest pulls out a great Irving Kristol quote:

"for well over a hundred fifty years now, social critics have been warning us that bourgeois society was living off the accumulated moral capital of traditional religion and traditional moral philosophy, and that once this capital was depleted, bourgeois society would find its legitimacy ever more questionable,"

Population heads southwards

I'm sure I've written a little on this subject before, but this fellow has more weight to his opinion: William H. Frey of the Brookings Institute has written a paper called The Electoral College Moves to the Sun Belt, in which he presents statistics and analysis projecting the increasing weight of the sun belt in the House of Representatives and Electoral College over the next thirty years.

While Frey is careful to add corollaries warning that this doesn't necessarily have to be terrible news for the Dems, the LA Times has all but ran up the white flag in a piece titled Democrats Covet the West, but Can't Keep Losing the South

new long-term population projections from the Census Bureau show that anyone who believes Democrats can consistently win the White House without puncturing the Republican dominance across the South is just whistling Dixie. The census projections present Democrats with an ominous equation: the South is growing in electoral clout even as the Republican hold on the region solidifies.

Ba'Ath party scores London victory

In a surprise late result, Saddam Hussein's Ba'Ath party scored an electoral victory yesterday, winning the British Parliamentary Constitutency of Bethnal Green & Bow. The victorious candidate, George Galloway, heaped praise on the beloved leader, and attacked the infidels, such as the voters, the returning officer, the elections staff, the local government, and of course, George Bush. We may comfort ourselves solely with the knowldge that he will be forgotten and ignored. For those who have seen the movie Elizabeth, recall the comments of Sir Francis Walsingham, told by a prisoner hanging in jail, "the people will not forgive this outrage!". Walsingham leans close to the man, and dryly replies, "they will forget". Mostly, you have to feel terribly, terribly sorry for the poor people of Bethnal Green & Bow, who will now be without adequate representation in Parliament, having picked - by a majority of 823 votes out of over 44,000 cast - a man who never opens his mouth without subtracting from the sum of human knowledge. 4928 LibDem 6244 Conservative 1950 Green 15801 Ba'ath 14978 Labour http://politics.guardian.co.uk/election/story/0,15803,1477676,00.html

Scalia on interpretation of authoritative texts

I'm sure I've posted these before, but I've managed to find transcripts to go with them:

Justices Breyer & Scalia on use of foreign law, at American University, 1/13/05:
Transcript
Video from C-SPAN

Justice Scalia on Constitutional interpretation, at Woodrow Wilson Center, 3/14/05:
Transcript
Video from C-SPAN

These are in Real format, which means you'll need the free Real Alternative to view it, or you could install RealPlayer if you so wish.

These segments transformed the foundation of my understanding of US Constitutional jurisprudence, in that for the first time, they presented a view of the Constitution which made a lot of sense to me, one which imbued the system with real meaning, one which was consistent with the founding premises of the Constitution. Fascinating stuff.

Another good reason not to shut down the Senate

House passes parental notification bill 270-157

Kevin Smith on "Revenge of the Sith"

Spoilers!

See - I told you Lucas wouldn't fuck this one up! :p

Today's roundup: the Pope and Howard Dean

Two interesting articles this morning:

US NEWS reports on how different Howard Dean's style as DNC Chair is from his predecessor, Terry McAuliffe:

McAuliffe would limo around town, dropping in at the Palm to huddle with Washington big shots. The 2004 presidential hopeful, by contrast, takes the bus or subway, buying his own $1.35 ticket. Sometimes he bums rides from staffers or walks the four blocks to the Capitol for meetings. "Please Call Me Howard" never flies first class and always carries his own bags.

The parent demographic

Taegan Goddard notes that the Progressive Policy Institute - a Dem think tank - has conducted a study attempting to describe why their party got slaughtered in the "married with children" demographic last year:

[L]ast year's presidential election "revealed a striking gap in the political leanings of people who are married with children: They favored the Republican, President George W. Bush, over the Democrat, Sen. John Kerry, by nearly 20 percentage points -- 59 percent to 40 percent."

"But Democrats will not do better with married parents until they recognize one simple truth: Parents have a beef with popular culture. As they see it, the culture is getting ever more violent, materialistic, and misogynistic, and they are losing their ability to protect their kids from morally corrosive images and messages. To be credible, Democrats must acknowledge the legitimacy of parents' beef and make it unmistakably clear that they are on parents' side."

Retro America vs. Metro America - why "The Great Divide" got it wrong

In relation to this. Look at the map. President Bush carried the same states as last time. It looks like the only differences on the map will be that Bush will win Iowa and lose New Hampshire, but it's not going to make any odds. The issue is simple: it's the demographics, stupid. The states that Gore and Kerry carried had a net loss of six electoral college votes since 2000; the states that Bush won made a net GAIN of six votes.

Now, my point is this: there's a book written by a democratic contributor called John Sperling called "The Great Divide" that basically says Democrats should abandon the red states as a lost cause - forget retro America and forge ahead in metro America. Sperling argues that this will allow the democrats to win in the medium term. But yesterday proved the fallacy of such a strategy: Bush won on the red states alone. The next Republican candidate can ALSO win on the red states alone. The demographics are trending towards greater representation for the red states, not the blue states.

There's another factor to discuss here. Internal migration into the red states was something I discussed above, as a force that will increase representation for the Red states in the US House, and thus the electoral college. However, there is a break on this process: migration into the red states is dependent upon the necessity of paying work, and good-paying work is supposedly hard to find in those states. But what about retirees? Retirees don't want work - they want lots of land for what money they have, and cheap goods to buy. The great plains states - red states, all - have cheap land, and WalMart has cheap goods. Consider this: we have an aging population, which means that the proportion of retirees to workers is shifting in favour of retirees - and the baby boomers are about to retire. It's very possible that the migration into the red states - and thus the electoral weight of those states - could grow exponentially in the next two generations.

Call to boycott GOP donor companies

How marvellously monotonous! A group called Buy Blue is telling Democrats to boycott companies which donated to Bush's re-election campaign. They even, thoughtfully, provide a list of those companies!

So in other words, my liberal friends, to stop supporting Republicans financially, your mission - should you choose to accept it - is that all you have to do is cease shopping with:

Walmart, Kmart, Circuit City, JC Penney, Sears, Victoria's Secret, Bath & Body Works, Home Depot, Target, Amazon, Dollar General, Guess, Fruit of the Loom, Nike, and Hallmark. You can't eat at Outback, Red Lobster, Olive Garden, KFC, Pizza Hut, Taco Bell, you can't drink most US Domestic beers (Coors, Anheuser Busch) or bourbon (Southern Comfort, Jack Daniels), and you can't fly (every major airline supported Bush) or buy gas (every major oil company supported Bush).

Not included on that list, but almost certinly huge GOP donors are McDonalds, Burger King, every major credit card company...And, well, practically every large retail or manufacturing chain. The good news is that you can still buy Estee Lauder fragrances, provided you don't use a credit card or buy it at any of the places that sell it.

This movement will self destruct upon contact with with reality. Good luck!

The fat lady has sung

I know I'm reposting stuff I've already posted across several threads, but this isn't just Kerry losing the Presidency, this is an absolutely seismic shift in American politics.

President Bush has kept every state he won last time and gathered a few more, and with far stronger numbers. 11 states have voted to ban gay marriage, by majorities ranging from 2-to-1 to 6-to-1. The Republicans have picked up about 10 seats in the US House, and gone from a one vote majority in the Senate to a five vote majority in the Senate; the Democrat's leader Tom Daschle lost his Senate seat in SD, and Louisiana - which has NEVER elected a Republican senator before - now has one. Indiana has ended 16 years of Democratic governors and state legislatures, and will now have a Republican governor and a Republican regislature. Over the course of the next four years, expect to see the balance in the Supreme Court change fundamentally, too.

Only 17% of voters aged 18-29 bothered to turn out to an election where, as rarely so acutely before, America stood at a crossroads. For better or worse, this isn't just a defeat - this is a rout for the Democrats and everything they stood for in this election.

Democrats are saying that the democrats survived Nixon and they survived Reagan, so they'll survive this. But throughout those administrations, Democrats controlled The US House, and numerous statehouses. This morning, we wake up to the reality that Democrats control no part of the Federal Government, the moderates are leaving the Bush cabinet (specifically, Powell and Ridge), and their control out in the states is now marginal. This is a power shift of absolutely unprecented scope; rarely before has America stood at a crossroads with such very different paths ahead of it and headed down one path with such gusto.

The democrats, as it seems to me, are finished as a serious force in American politics.

Turkey mulls criminalizing adultery

Story.

Turkey's parliament is debating reforms to the country's penal code which would include making adultery a crime. Many of the reforms - which include outlawing torture and imposing stiffer penalties on human traffickers - have been welcomed by the EU and human rights activists.

But the clause to make adultery a crime has been greeted with dismay by women's groups and liberal commentators who plan to demonstrate outside parliament against the bill.

Details of the anti-adultery legislation have not yet been made public but Justice Minister Cemil Cicek said the measure could only be applied if the spouse complains.

A theory about why America has become so partisan.

It's frequently stated that there are now two Americas, each only peripherally cognigent of the other's existance and views. It wasn't like this once, people say; and indeed, watching re-runs of Presidential debates from yesteryear, the point seems to be underlined. While there are probably as many theories as legitimate reasons why, I'd like to offer up a postulate.

The internet, which although it has roots stretching back decades, began to gain popularity with the invention of the web browser in the early 1990s, has revolutionized communications. This revolution does not just extend to our practice of communications; by expanding the possiblities available to us, the internet has expanded our expectations and ambitions in the realm of communication.

In the past, people who wanted to discuss politics we pretty much stuck with debating primarily the people around them in their community. This meant, to a great extent, you had to work with what you had; often, this would not have included people who mainly agreed with you. In such an environment, skills such as oratory, compromise and debate flourish, out of necessity. The community provides a crucible in whicih the more extreme, nonsensical or purely ideological ideas were burned out of potential politicians, and the politicians that emerged were therefore less deeply partisan, less deeply buried in ideology, and better able to work in a mindset conducive to bipartisan co-operation.

The internet, however, represents the triumph of affinity over geography. People now are not only able to, but expect to, converse primarily with people who hold similar views to their own. An Alaskan or Hoosier democrat can now converse freely with other democrats, as can a Chicagoan Republican. In this way, the public discourse (and resulting mindset) of today's potential politicians is very different to those of yesteryear. This division is closely represented in the ghettoization of the US House, where redistricting has virtually overwritten geography; Congressional Districts that might once have contained many diverse opinions have simply had their borders changed to include fewer dissenting voices, creating safe seats for each party. The two sides have dug in for a long war; once again, something that begins as an idea becomes a mindset, which - if held by sufficiently powerfull people - can be forcibly imposed on reality.

I make no claim that this is the sole cause of deepening partisan division in America; George Lakoff has made some hugely valid points about the failure of Repulbicans and Democrats to understand on a basic level the language spoken by their opposite numbers, and this can only have a detrimental effect on political discourse. But I think this posit is an interesting thought.

Moby explains politics

"you know what politics is/are like in the united states? It's like pop-music.
Example a: pop-music. republicans are like ashley simpson, and democrats are like radiohead. radiohead fans will forever be mystified as to why someone would buy an ashley simpson cd, but ashley simpson's handlers/managers understand what the lowest common denominator are looking for and they give it to them. radiohead fans think 'that disposable pop music is terrible, and someday people will see the error of their ways and buy radiohead cd's instead of ashley simpson cd's', meanwhile ashley simpson and her managers are selling millions of records…

my point? yes, radiohead are better than ashley simpson.

Newt on how to beat Kerry

Memo.

There is a temporary narrow partisan division among Americans but there is no narrow values division. On a wide number of issues Americans average about four to one in favor of Center-Right values. In one set of 34 issues the American people averaged 77% on one side and 17% on the other side. [Therefore] the 2004 campaign is actually very simple:

1. Define the Kerry-Edwards ticket as the left and prove that its values and its history make it unacceptable to the vast majority of Americans;

2. Communicate what President Bush and the Republicans have accomplished for the American people despite the bitter opposition of the left;

3. Explain the nature of the terrorist threat against America and the historic and moral importance of President Bush's strategy to defend America, including the decision to liberate Iraq;

4. Communicate what President Bush and the Republicans will accomplish in 2005 for the American people if they are given the opportunity;

5. Use September and October in Congress to demonstrate vividly the difference on core values between the Senate based Kerry-Edwards left and the Republicans and therefore the difference in the future they would create;

6. Focus on this clear choice so the Presidential and Vice Presidential debates will be acts of repeating the clear differences and the historic record;

7. Slow the campaign down to emphasize the big difference, focus on the facts and allow the American people to realize how big their choice is.

Britain in Constitutional Crisis

Story.

The trust question leads to a concern that should transcend left and right. It is far bigger than party politics. Put simply, the country is in the grip of a constitutional crisis. That may sound overheated: there are no judges hanging from lamp-posts, no tanks rolling down Whitehall. Yet the phrase is not mine. It is the word of the hour among that most restrained set - the mandarin class. In the past week, I have heard from three different and wholly credible sources that Britain's senior civil servants, present and former, are shocked at what they see as a gross breakdown in our system of government.

The myth of the left's opposition to military intervention

Story.

A seemingly ceaseless supply of new books and radio talk-show commentary in support of George W. Bush and his foreign policy give the impression that the only controversy in America worth mentioning involves patriotic Bush supporters and knee-jerk opposition to war by liberals.

Two arguments are being made here: that the Iraq War and foreign-policy aggressiveness constitute the self-evidently correct conservative position and that liberals are philosophically and historically squeamish about going to war. The first of these arguments has been addressed at length in these pages. It is the second claim, involving the American Left’s alleged aversion to war, that remains to be overturned, for ever since the Spanish-American War of 1898, leftists have more often than not been at the forefront of calls for American military intervention abroad.

CA SC voids gay marriages

Story.

The California court sided with Lockyer's arguments, ruling that Newsom's actions would foment legal anarchy and sanction local officials to legislate state law from city halls or county government centers.

The free traders vs. the isolationists: Buchanan on the struggle for the GOP's soul

No Nationalists on Kemp’s Shining Hill

Since Bush took office, his free-trade policies have produced a net loss of 2.6 million manufacturing jobs, one in every six in the USA. The textile and apparel industries in the Carolinas have been especially hard hit. These jobs have historically been the access ramp to the American Dream for blacks, Hispanics, single moms, and working poor. Is Vernon Robinson wrong to want to stop shipping these jobs off to China? Our open-borders policy is forcing millions of our workers into a Darwinian competition for jobs with desperate immigrant folks willing to work for less than the minimum wage.

New words for the modern Business lexicon

Essential NEW WORDS FOR 2004 editions of the work-place vocabulary include:

PERCUSSIVE MAINTENANCE
The fine art of whacking the crap out of an electronic device in an attempt to get it working again.

ADMINISPHERE
The rarefied organisational layers beginning just above the rank and file. Decisions that fall from the "adminisphere" are often profoundly inappropriate or irrelevant to the problems they were designed to solve. This is often affiliated with the dreaded "administrivia" needless paperwork and processes.

BLAMESTORMING
Sitting around in a group, discussing why a deadline was missed or a project failed, and who was responsible.

TESTICULATING
The practice of waving your arms around while talking utter bollocks.

SEAGULL MANAGER
A manager who flies in, makes a lot of noise, screws everything up, and then leaves.

ASSMOSIS
The process by which people seem to absorb success and advancement by sucking up to the boss rather than working hard.

SALMON DAY
The experience of spending an entire day swimming upstream only to get screwed and die at the end.

MOUSE POTATO
The on-line, wired generation's answer to the couch potato.

SITCOMs
Single Income, Two Children, Oppressive Mortgage. What yuppies turn into when they have children and one of them stops working to stay home with the kids or start a "home business".

STRESS PUPPY
A person who seems to thrive on being stressed out and whiny.

404
Someone who's clueless. From the World Wide Web error message "404 Not Found," meaning that the requested document could not be located.

OHNOSECOND
That minuscule fraction of time in which you realise that you've just made a BIG mistake (e.g. you've hit 'reply all') and it’s too late to fix it now.

9/11: Govt. had "a failure of imagination, of capability, of mentality, of credulity"

A brief executive summary of the 9/11 Commission's report can be found on the Washington Post's website.

Los Alamos computers probe how giant planets formed

Story.

Nearly five billion years ago, the giant gaseous planets Jupiter and Saturn formed, apparently in radically different ways.

So says a scientist at the University of California's Los Alamos National Laboratory who created exhaustive computer models based on experiments in which the element hydrogen was shocked to pressures nearly as great as those found inside the two planets.

Working with a French colleague, Didier Saumon of Los Alamos' Applied Physics Division created models establishing that heavy elements are concentrated in Saturn's massive core, while those same elements are mixed throughout Jupiter, with very little or no central core at all. The study, published in this week's Astrophysical Journal, showed that refractory elements such as iron, silicon, carbon, nitrogen and oxygen are concentrated in Saturn's core, but are diffused in Jupiter, leading to a hypothesis that they were formed through different processes.

Freedland on the Bush Doctrine

http://www.guardian.co.uk/comment/story/0,3604,1250271,00.html

Affirmative action

I made various comments clarifying my position on affirmative action in this thread over at Centerfields. See also, entry, 11/15/2004

Question time

George Willhas some questions for Senator Kerry…

Au revoir, Howard

A sad post-mortem on the Dean Campaign.

I see, in Dean's seemingly doomed bid for the nomination, more and more of my own doomed attempts to convince students that the reason their Union kept sliding further and further into a hole in the ground (literally, as of 2002) was because they kept electing callow idiots, and that if they'd only stop electing callow idiots, then the decline could be halted and reversed. They never did; unable to bear it any longer, I resigned from the Union Council, and watched with quiet satisfaction while the Union collapsed into corruption, ineffectiveness, bankrupcy, and, ultimately, the demolition of its offices. I'm not even sure if it still exists now in any meaningfull sense; in spite of the continual efforts of a minority of dedicated Council members, the voters felt that they knew better, and they got exactly the Union they deserved: corrupt, ineffective, bankrupt, and, ultimately, homeless.

The Weekly standard on Bush v. Kerry

Story.

It turns out that it WAS only a matter of time

"Polyamorists" want marriage, too.

Polyamorists? You mean bigamists.

Just when you thought the push under the constitutional amendment couldn't get any stronger...If Bush gets elected, expect to see the amendment go out to the States by the middle of next year; if he loses, expect to see it go to the States by the end of the year. This strengthens the hand of the right immensely; they said it was a slippery slope to the end of marriage as we know it, and now it's been demonstrably so. All they need is an amendment defining marriage as the union of one man and one woman, and they will get the support not only of homophobes, but a hugely expanded constituency - myself included - appalled with news like this.The more I think about it, the more wrong it seems. I find this to be a much greater threat to the sanctity of marriage than gay marriage. My personal definition of marriage is best expressed as a monogamous, spiritual and legal union of two people in love; that definition does not preclude gay marriage, but it most certainly precludes multiple-partner marriages.

Two people in love choosing voluntarily to commit their hearts, bodies and lives to one another exlusively, in front of society and in front of whatever higher powers they recognise do not threaten the sanctity of marriage, in my opinion. Marriage is not an exclusively Christian institution, and America is not an exclusively Christian country. While I would not choose homosexuality for myself, I understand that others do, and my own marriage convinces me that I could not withhold from two people in love the joy that I have found in that union. I can understand the desire to be monogamous, the desire to give everything to one partner, even if I choose that partner to be from the traditional gender. But multiple-partner marriages, by definition, are not monogamous - and I personally can't even begin to comprehend the value system of people who would choose to take multiple partners.

Many liberals and some conservatives alike say that a person's private life is just that; that it doesn't matter a damn that Clinton cheated on his wife. It does matter. If a person will lie, defraud and abuse the trust of a person they have committed their life to, the suggestion that they are in any other way trustworthy is perverse. I would not hire a man who I know to cheat on his wife; I would not vote for such a man either. Yet these statements rest on the assumption that marriage is a monogamous union between two people in love. That kind of love, in my world, doesn't share.

I hear the live and let live talk, but this orgy marriage idea runs deeply, deeply contrary to ingrained assumptions about the nature of love and marriage. When we learned about Mormons back at school, even back then, I remember thinking very distinctly that Mormons don't love their wives, that they have no concept of what marriage is. I guess you can think of it as a window into how the people who oppose gay marriage feel.

Infinite cats

The Infinite Cat Project. Strangest thing ever.

"A defence that won't work against a threat that doesn't exist": SDI deployed in AK

Story.

DELTA JUNCTION, Alaska — As early as this summer, rockets hidden in silos near this wind-swept town will give the nation its first operating defense against intercontinental ballistic missiles since the 1970's. Although the system is not a secret, it has been revived with so little fanfare that few Americans seem to realize it exists.

Among warfare experts, it is reviving the type of bitter debate that began in the cold war, culminating in an antiballistic missile treaty. And it is inspiring the same sort of passion that arose during the national fixation with President Ronald Reagan's Star Wars effort, officially the Strategic Defense Initiative. Unlike Star Wars, which faded into the realm of misbegotten high-tech dreams, the new system relies on agile but fairly ordinary rockets to smash incoming warheads rather than nuclear-powered lasers in space. In the new debate, Pentagon planners see the system as a bulwark against the ultimate calamity, a nuclear attack, while skeptics ridicule it as a defense that will not work against a threat that does not exist.

The decades have not washed away the political dimension of a missile defense, either. Deploying the system will fulfill a campaign pledge by President Bush, as well as a more specific directive, issued in December 2002, that the nation have a functioning missile defense system by this year.

Critics of the system, which will cost $10 billion a year for the next five years and, potentially, hundreds of billions when the full defense envisioned by the Pentagon is installed, say it is being rushed before being fully tested. The critics call it a flawed defense against the ICBM's of yesteryear, not the suicide bombers and hijacked airplanes of the world since Sept. 11.

Science and religion

I often think, as an agnostic drifting towards deism, when I hear people questioning the existence of God, that I'd like to ask them two questions:

1. Do you understand quantum physics?
2. Do you think that quantum physics requires you to understand it for it to be true?

I don't understand how quantum physics works. Although I can intellectually understand many aspects of the theory from reading about it and doing the maths, I none-the-less can't conceptualize a ten-dimensional universe; I can't visualize how space curves or how time distorts, and I can't concieve of how everything that exists is determined by the direction of spin, and positive or negative electrical charge, of a sub-sub-sub-atomic particle [sic.], the only difference between which is types of vibration of a sub-sub-sub-sub-atomic piece of string. (Refer to Michio Kaku's book Hyperspace or Hawking's popular Brief History of Time for non-scientist-comprehensible details). None-the-less, just because I don't fully understand the theory (in my defence, Heisenberg is quoted as saying that "anybody who claims to understand quantum theory, by definition, does not understand quantum theory"), I don't assume that the theory is wrong. I don't require a theory to be simple to know it's true.

Try to imagine how an ant would try to conceptualize the galaxy - in short, it wouldn't. It couldn't. Human arrogance assumes that human understanding will be sufficient to match the extension of human vision that technology has brought. Also, remember how the mice in the Hitchhiker's Guide to the Galaxy were only the protrusions into three-dimensional space of much bigger ten-dimensional beings. My point is just that there is far more to this universe than we can ever see or will ever understand - and that's even assuming that God is throwing straight dice. Reality is only an illusion - albeit a very persistant one.

Democracy now!

Story. Kristol & Kagan on the way forward in Iraq.

Concept album, ahoy!

I'm starting to plan out a concept album at the moment. The central theme is that all power is fleeting and all time is borrowed; those ideas will be fleshed out in four songs, three drawing on history (the French Revolution, the British Empire, and an epic covering the fall of Rome and the preservation of the knowledge of the ancients through the dark ages by the monastaries, as fictionalized by Asimov in the classic Foundation series), and the fourth covering the concept from a more philosophical point of view. Musically, I suppose it will draw on exactly who you'd expect: Simon & Garfunkel, Yes, Genesis, Sky, REM (specifically, AFtP), Pink Floyd, Richard Wright, Roger Waters, Tori Amos, Mike Oldfield, Toto, early Dream Theater (1992-1997), Peter Gabriel (in particular, So), Miles Davis, Benny Goodman, Return to Forever, Hector Berlioz, Antonio Vivaldi, Benjamin Britten, Richard Straus and Gustav Holst. I'm sure other influecnes will work their way in there too, but that's my "inspiration corner".

I've considered myself a reasonably proficient musician for probably five years, having been a student of music (on the piano, and tenor and bass guitars) since I was 6. By comparison to several people making a living from music, I'm very proficient; by comparison to many others, I'm laughably bad. So I like to think of myself as okay - but for me, actually writing music has always been very, very difficult. Fortunately, we're now at a point where the technology is available for me to be able to piece together and record ideas fairly easily, and so it becomes a matter of creating a conceptual framework, mapping the flow of ideas and moods in a piece, and then writing the music to that map. In many ways, it's more like writing a soundtrack than what most people would picture as "writing songs" (I can hear fans of punk music or metal recoiling in horror to the idea of writing a concept album about the sack of Rome, where the ideas and lyrics at least partially predate and determine the musical content), but unless I want to play nothing but improvised melodies and grooves over and behind other people's compositions (which is fun, but unsatisfying), it's the only way I can do that.

The older I get, the less interested I am in music that isn't about anything.

When it's done, I'm going to need someone to do the sleeve art. Guess which forum I come to first for that. (Although, I should add, that the brief will be real simple: I don't care what media you use, paint, photos, whatever; but if it looks like it's ever been near photoshop or any other computer art program, it'll be rejected out of turn. I'm so incredibly sick of modern sleeve art and CGI, so I want a sleeve that is organic and real and reflects the artist's visual take on the themes I'm exlporing musically).

Tushnet on Tribe

Marvellous quote from Mark Tushnet:

So, to quote Justice Jackson, "Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' . . . But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.")

Continuity of Representation act - what's wrong with the bill now, and how to fix it

The House is discussing amendments on this bill right now, for those who have CSPAN.

This bill considers the effect of a terrorist strike that wipes out 100+ members of the US House of Representatives, of precisely the sort envisioned by Tom Clancy in his book Debt of Honour, and of precisely the sort envisioned by Osama bin Laden in his terrorist strike September 11th 2001. It considers what should happen to re-constitute the House; while vacancies in the Senate may be filled by the governors of the States which those Senators represent, there is as yet no parallel mechanism in the House.

The bill states that when the Speaker determines that there are 100+ vacancies in the House, each State will hold a special election within 45 days.

There are two major problems with this bill:
1. What happens if the whole House is meeting, and the entire House - including the Speaker - are wiped out?
2. What happens if not just 100 members are lost, but enough that the House is no longer able to make a quorum?

The second problem is the most concerning. In that scenario, the Congress would be shut down for at least 45 days. Any response to an action that wiped out the Congress would likely need to be beginning within 45 days, which would put immense pressure on any President to take action. With no congress, those actions could only ever be extra-Constitutional. That's a dangerous idea.

A far better proposal would be that in an emergency where more than 100 vacancies arose in the House as a result of a single event, as certified by the Chief Justices of one-third of the States, the mechanism for a 60-day election be put into place, with the vacancies in the House and Senate being filled by the governors of those States with persons who will not be elligible in the election, for an interim period until the election is held. In this manner, the US Congress could be re-constituted within 8 hours, and the mechanism for certifying such a vacancy is formally put in the hands of people who are never likely to be in close physical proximity to the event they are supposed to certify.

Lastly, pause briefly to consider a successfull strike on the Capitol during the State of the Union address. Under this proposal, not only would the government be in the hands of a minor cabinet member (the President, Vice President and Speaker all being dead), but that unlected President would have no Congress for 45 days. Can you imagine what Donald Rumsfeld could do with 45 days as the President of the USA, with a broad need to extra-Constitutional activity?

The Pledge

I read a comment from someone who thought it "really weird for masses of people to pledge their allegiance to a piece of fabric".

...And to the Republic to which it stands.

One pledges allegiance to one's country....It's a civic duty. The Pledge is not simply an affirmation of loyalty to the government of the day, but rather a solemn pledge to honour and defend the idea of America against all enemies, foreign and domestic. To honour and defend that nation that allows you to have all the rights and priveleges that most people (let alone schoolchildren) now feel are innate, and yet are denied to the vast majority of the human race.

We hear so much of rights in America. The pledge is affirming the execution of one of the duties that goes hand in hand with those rights.

Blind faith in one's government is unwise - and if the Founding Fathers had blind faith in their government, we probably wouldn't have those rights. But it's important to never lose sight that it is under that flag, and in the name of the Republic for which it stands, our rights and priveleges were paid for in the blood and sweat of our forefathers.

NAFTA tribunals "override US and State Supreme Courts"

Story.

...Tribunals like the one that ruled on the Massachusetts case were created by the North American Free Trade Agreement, and they have heard two challenges to American court judgments. In the other, the tribunal declared a Mississippi court's judgment at odds with international law, leaving the United States government potentially liable for hundreds of millions of dollars.

Any Canadian or Mexican business that contends it has been treated unjustly by the American judicial system can file a similar claim. American businesses with similar complaints about Canadian or Mexican court judgments can do the same. Under the Nafta agreement the government whose court system is challenged is responsible for awards by the tribunals.

"This is the biggest threat to United States judicial independence that no one has heard of and even fewer people understand," said John D. Echeverria, a law professor at Georgetown University.

Nader bashing: for fun and profit

I wanted to rail against Nader's candidacy again. See also entry 2/23/2004.

Either Nader is an idiot, and doesn't understand those consequences - viz., that his presence on the ballot can only harm the chances of ousting Bush - or else he knows exactly what he's doing, in which case he's a Bush supporter. There is a third possibility: he's embracing the left, with explosives strapped to his chest, and saying "do what I say or I'll doom us both". When the democrats refused to flinch in 2000, he doomed us to four years of Bush. Now he threatens to do it again in 2004. At best, he is an idiot, at worst he is an agent provocteur, and most likely, he is a deeply selfish, vain and irresponsible man, who would rather see another four years of Bush than see himself drop off the political radar.

His candidacy will achieve nothing for the causes he claims to support. If Ralph Nader wants to do something, he can cut a deal with Kerry, on Kerry's terms, and work as hard as he can to ensure that it is Kerry and not Bush who stands on the capitol steps next January. Governor Dean, a man with a lot more to respect about him than Nader could dream of, has swallowed his ego, and has committed himself to job one: getting rid of Bush. It's about time Nader and his supporters dropped their conceits and did the same thing.

From our friend Steve:

And remember, guys: bashing Nader this year will backfire just like it did in 2000. Kerry and his supporters need to provide POSITIVE reasons for progressives to get behind Kerry.

Research student looking for views on war as a tool of international diplomacy

This was posted on a forum I go to, some people may feel like contributing.

In response to the final question - an open "write in your own views on the use of war in international diplomacy" - I had to answer:

The Declaration of Independence declares certain truths to be self-evident: "that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness". Yet, four-fifths of the world do not enjoy these "self-evident" rights. In my view, we should seek to extend, to those who lack those rights, those same rights, choices and liberties as we are so fortunate as to enjoy. At times, that will involve armed intervention, and that is a regrettable - but neccessary - consequence of a firm belief in the supremacy of liberty.

Oh good Lord…

Slave descendants to sue Lloyd's

Why Sun threw in the towel in Mankind vs. Microsoft

Story.

Principles are fine things to have, but only if you can afford them. With its stock declared a 'junk bond' and finishing a terrible quarter, Silicon Valley's leading Microsoft antagonist Sun Microsystems has now decided it can't.

The news will have surprised the company's lawyers, who only this week were girding themselves for the next round of litigation. It appears that for almost $2 billion, Microsoft has bought its way out of a lot of trouble. In truth however, both parties realized that the EU decision, which is still pending appeal, was a watershed. Microsoft doesn't have any more nasty surprises to face from the US, EU or States, and Sun realized that it couldn't push any more severe penalties out of the process. What could Sun achieve by proceeding with its 2002 lawsuit? The lawsuit asked for $1 billion in damages; today's settlement yields Sun $700 million for antitrust issues - less than what it wanted - and a further $1,250 million covering patent royalties - which is more than what it wanted...

"Suicide by free trade"

From Pat Buchanan:

Both candidates and both parties seem clueless about what is going on and what to do about it. For Bush Republicans and Kerry Democrats both backed NAFTA, GATT, the WTO, and MFN for China. There is this difference, however. Republicans are principled free traders, while the Democratic Party, as a wag put it a while ago, is simply a gathering of warring tribes that have come together in the anticipation of common plunder.

...If the GOP persists in this free-trade fanaticism, it is courting suicide. For the policy is not working in the eyes of the people. And if Republicans insist the returns from global free trade—a disintegrating dollar and a merchandise trade deficit of $550 billion a year and rising—are good for America, folks are going to conclude that Republicans are too out of it to govern.

Trouble down't Hill: Congress Giving Up Its Clout

Robert Kaiser discusses the continuing transfer of power out of the legislative branch.

The jobs crisis and the GOP

From the pen of Pat Buchanan:

President Bush and his advisers are puzzled and worried. Economic liftoff took place right on schedule in July when the tax cuts took effect. In the last six months of 2003, the economy blazed along on a growth path of 6 percent. But where are the jobs?

The discomfort of strangers

Interesting essay in the Guardian from David Goodhart.

...In the rhetoric of the modern liberal state, the glue of ethnicity ("people who look and talk like us") has been replaced with the glue of values ("people who think and behave like us"). But British values grow, in part, out of a specific history and even geography. Too rapid a change in the make-up of a community not only changes the present, it also, potentially, changes our link with the past. As Bob Rowthorn wrotein Prospect in February 2003, we may lose a sense of responsibility for our own history - the good things as well as the shameful things in it - if too many citizens no longer identify with it...

Looks like Nader's in for 2004

As posited by a Daily Standard article that could hardly contain their sense of joy, Nader 2004 may be a presidential campaign run entirely out of spite.

Nader, on the other hand, either has learned a very imortant lesson, or else he's learned nothing. Neither possiblity speaks well of him. Either he learned that, by threatening to run in 2004, he can seek to control the democratic agenda, invoking the spectre of four more years in the wilderness; or, he doesn't understand how necessary it is that this is a two-horse race. One possiblity paints him as duplicitous and opportunistic, the other paints him as selfish and foolish. Neither option speaks highly of him.

About Benedict XVI and conservative views

This post - and some of the comments - are reproduced from something I posted on a message board, and subsequent discussions.

Disclaimer: I'm not a Christian, I'm somewhere on the skeptical side of deism at this point.

I have to admit that I'm baffled when people say things like "I'm a Roman Catholic, but I disagree with the Vatican on points x, y and z". If you disagree with the Catholic church, how are you a Catholic?

If you challenged the Pope to justify why he holds the views that he does on homosexuality, abortion, birth control and so on, I'm willing to bet that he could give you a lengthy essay on precisely why, peppered with references to scripture. Yet, when you challenge those people who disagree with his views, or object to his "conservatism", those people rarely (if ever) attempt to refute his textual arguments, or explain how he's misreading scripture - they simply contend that the church's morality should more closely resemble their views, without any reference to scripture. By implication, it seems to me, they contend that the church should be based not upon the text of the Bible, but rather - cue Antonin Scalia impression - upon "society's evolving standard of decency".

Any authoritative text - whether it's the Bible or the United States Constitution - has to be understood to mean what it meant when it was written. If it isn't interpreted that way, then ipso facto, it isn't authoritative. "Society's evolving standard of decency" is of no relevance whatsoever; the only variables are our understanding of the original intent of text, informed by the context in which it was written, and how the text can be reasonably interpreted to apply to contigencies which it does not take into account. The context has been obscured by the passage of time, but the meaning does not change per the same; it means today what it was understood to mean at that time.

In order to dispute the views of the Pope - a man who has spent a lifetime studying the text and context of the Bible - it is incumbent upon you to demonstrate why the interpretation or translation of the text on which he bases his views is wrong, that this isn't what the Bible says. If you can't do that, or if the basis for your argument is anything other than the text itself, your argument is on very, very shaky ground.

I don't agree with the new Pope's views - or those of the old one, for that matter - on homosexuality or bith control any more than most my friends on the other side of the aisle do. Solution? I don't become or claim to be a Catholic! Being a member of a religion, to my mind, is not like being a member of a political party. You don't get to pick and choose which sections of the New Covenant you like; this isn't Burger King, you can't "have it your way" - you either accept it in toto or reject it in toto.

Lest it seem that I'm horribly cold-hearted about this, the truth is that I do feel for those people who find it difficult to reconcile their social and political views against their purported religious beliefs - but the church can only stretch so far. Dogma can be challenged, biblical interpretation can be challenged, but at the end of the day, the definition of a catholic is someone who is a member of the catholic church; to be a member of the catholic church, you have to accept the teachings of the catholic church. If you're a Christian who doesn't, then - by definition, it seems to me - you're not a catholic - you're a protestant.

The bottom line is - the church does not dictate policy to God, neither does Pat Robertson or Al Sharpton, and most certianly, neither do you or I. If you think the Church's teachings are heretical, if you believe that they are a departure from the expressed and implied message and teachings of Jesus Christ, then you need to demonstrate that, textually, and if you can't do so, you should find another church. Ahem. There is another alternative, which is of course that maybe you accept that what the church teaches is in fact accurate to the expressed and implied message and teachings of Jesus Christ, but you simply disagree with those teachings. And if that's the case, I think you are occupying territory that is very, very tough to defend.

The new Pope isn't shy to speak his mind

Story.

Last summer, Ratzinger entered an argument among U.S. bishops about whether Catholic politicians -- such as Sen. John F. Kerry (D-Mass.), then running for president -- should be denied Holy Communion because of their support for abortion rights. "Consistently campaigning and voting for permissive abortion and euthanasia laws" was a "grave sin" that must disqualify a Catholic from receiving the sacrament, Ratzinger wrote, and so is voting for such a politician out of support for abortion rights.

BOSTON (Reuters) - Liberal U.S. Catholics on Tuesday expressed dismay at the choice of a conservative new pope and doubted he will heal an institution racked by disillusionment and tarnished by a sex abuse scandal among the clergy.

The election of Cardinal Joseph Ratzinger as Pope Benedict XVI rankled those who advocate married priests, a bigger role for women within the church and softening its policy on homosexuality, birth control, euthanasia and abortion.

Funny

I found this funny and clever...

Ten Reasons Why Gay Marriage is Wrong

1. Homosexuality is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.

2. Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.

3. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.

4. Heterosexual marriage has been around a long time and hasn't changed at all; women are still property, blacks still can't marry whites, and divorce is still illegal.

5. Straight marriage will be less meaningful if homosexual marriage were
allowed; the sanctity of Brittany Spears' 55-hour just-for-fun marriage would be destroyed.

6. Heterosexual marriages are valid because they produce children. Homosexual couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.

7. Obviously gay parents will raise gay children, since straight parents only raise straight children.

8. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That's why we have only one religion in America.

9. Children can never succeed without a male and a female role model at home. That's why we as a society expressly forbid single parents to raise children.

10. Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven't adapted to cars, the service-sector economy, or longer life spans.

Since I have some time…Roper v. Simmons

This is something I've not really commented on, although I've been stewing about it for a couple of weeks, until I ran into this excellent blog post about it, and I thought I'd repost my reply to the author here.

That was an excellent piece...I agree with virtually all of what you said. the underlying problem seems to be this notion of "the living constitution" - an idea supported by Justices like LJ Breyer - and a legal doctrine that Justice Scalia has warned will ultimately rob the Constitution of all meaning.

Like you, I am generally opposed to the execution of minors; I think it's wrong that society allows it to be continued, in any but the most heinous of cases.

But when did something being wrong make it unconstitutional?

This is the key underlying problem with Roper and many of the Court's other recent decisions: their desire to establish new rights has overriden their constitutionally ordained role; they are dreaming new rights into the text which have never been there before. The constitution is not a malleable document through which a lordly government tells us what rights we have; it is the charter through which "we the people" established a mutually agreed delegation of powers to the government. The 8th Amendment does not ban the execution of minors; neither the death penalty or its application to minors was considered "cruel and unusual" in 1791; no amendment has yet been ratified into the constitution which so defines the execution of a minor. Thus, there is no possible grounds to declare the execution of a minor "unconstitutional".

Now, that isn't to say that it's a good thing that it isn't unconstitutional. Maybe it should be. Luckily, the Framers gave us a handy dandy way to change the meaning of the Constitution. That process is spelled out, though, in Article V - not Article III (one could argue that, if the Framers intended the meaning of the Constitution to be updated by the Supreme Court from time to time, why provide a legislature-initiated amendment process at all? Why not just write into article V, "from time-to-time, the Supreme Court will update the Constitution, on examination of the evolving standard of decency in the nation and in foreign case law?" For that matter, why not just grant the court such a duty/power in Article III section 2 - which, of course, they very conspicuously did not). Just as with the 2nd Amendment, if the execution of minors is such a bad thing, if the ownership of assault weapons is such a bad thing, convince enough people and pass a constitutional amendment. Lobby your state legislature to pass a law. But to claim that it's unconstitutional is a nonsense.

I think that the problem is that many people - as a result of the spread of this pernicious doctrine of "the living constitution" are no longer able or willing to accept that just because something is morally repugnant that it can't still be (and isn't) legal and constitutional.

This is not merely legal nitpicking - it's goes to the very heart of what the Constitution means. If the constitution does not mean what it says, if its meaning can be changed through time or circumstances, then we should stop pretending and get rid of it. If the costitution is a "living document", as LJJ Kennedy, Breyer, Ginsburg, Stevens et al contend, then the constitution is moot. It is of no value whatsoever, because the only value of the constitution is that it makes government the servant of the people, rather than their master, by forcing the government to operate under the framework we and our forefathers granted it by ratifying its charter. Government can offer the people revisions to its charter, and the people can accept or reject those amendments per procurationem their State Legislatures - but the day that any branch of government is yielded the authority to redefine its charter, we will take a step towards tyranny. Roper v. Simmons - for all its undeniable good intent - is such a step; it is the court ruling what is moral, not what is legal. And as Justice Scalia noted in his dissent, "the court hereby proclaims itself the sole moral arbiter of the nation". The Founders would be appalled, and it's a mystery why the populus are not.

Off sick

Felt pretty crummy this morning, went to the doc at lunch...I have strep throat of the infectious variety, so I'm banned from the workplace until weds morning...and the shot they gave me us making me super woosy...And they syringed my ears. Which makes me dizzy...blah…

DLC leaders make their bid for Dem party's future

Story.

In an attack on the party's dominant left wing, anti-war base, and a warning for new Democratic National Committee Chairman Howard Dean "to do no harm," the centrist-leaning Democratic Leadership Council said it is "a delusion to think that if we just turned out our voters, we could win national elections."

Instead, the DLC called on the party to dramatically change its message to "recapture the muscular progressive internationalism of Roosevelt, Truman and Kennedy and convince voters that national security is our first priority."

"To win back the White House in 2008, our party must change. We must be willing to discard political strategies that may make us feel good but that keep falling short. We must finally reject the false choice between exciting our base and expanding our appeal, because unless we both motivate and persuade, we'll lose every time," said DLC founder Al From and President Bruce Reed in a new manifesto for their party.

The fat lady - err...Speaker - sings on Social Security reform

Well - maybe, anyway:

Story.

As was widely reported yesterday, House Speaker Denny Hastert (R) of Illinois is quoted in the National Journal saying he doesn't believe the Republican Congress will be able to pass a Social Security phase-out bill in 2005.

He says it will have to wait until 2006.

Now, the idea that [supporters of reform] are going to have the fortitude, shall we say, to pass a phase-out bill within six months of an election when they were too scared to do it eighteen months before an election is preposterous.

So what Hastert is saying is that Social Security phase-out is over in the 109th Congress. Mind you, that doesn't mean I think it's over. But that is what he's saying, for all who have ears to hear it.

The Pope

There's almost nothing I can say or add to the chorus regarding the death of the Pope, so I'm staying out of it, except for expressing my disgust at the reaction of the New York Times.

Howard Dean Enjoyed Minutes 8-10 of “Fifteen Minutes of Fame” Most of All

Story.

MONTPELIER, VT – Current DNC Chief and former Democratic Presidential candidate Howard Dean had a wild ride while trying to reach the White House during the 2004 Democratic primary. It was a roller coaster, filled with peaks and valleys, hills and depressions.

What Governor Dean experienced is what many people call “Fifteen Minutes of Fame,” where a person becomes wildly popular for a very short time, before drifting into oblivion.

“It was nuts,” Governor Dean said. “The first two minutes were a blur – everything happened so fast I couldn’t possibly have absorbed it all.”

Governor Dean said that minutes three, four and five were filled with hard work, and were therefore, less enjoyable. “We were working so hard, I really didn’t enjoy them as much as I should. Sometimes you have to step back and smell the roses. Unfortunately I didn’t do that in minutes three through five.”

Butting heads with Pat Buchanan

Pat Buchanan on Ex Rel. Schaivo

"...Conservatives are hypocrites, they charge. The Right opposes judicial activism and preaches states' rights. But in Terri's case, the Right clamored for judicial activism and rejected states' rights.

But this is absurd. The judicial activist in Terri's case is Greer, who sentenced a brain-damaged woman to death by starvation and dehydration. If this is not judicial activism, in violation of a citizen's right to life, due process of law, and not to be subjected to cruel and unusual punishment, what is?

Cracks ahead?

I was going to just post the article from the Washington Post which talks about how the GOP is being placed under enormous stress over the President's ludicrous immigration plans ("Operation Roll Out The Welcome Wagon" - q.v. entries 1/27/2004, 12/15/2004 and 3/7/2005), but I also wanted to express my astonishment at a post by another LJ Republican, who argues that "The Republican party has become much more Federal-policy oriented. From No Child Left Behind to potential ammendments, it has left its traditional policy of letting the states solve their own matters. This may not be such a bad thing...The Federal government will continue to become larger, to take more policy away from the states. This does not necessarily have to be a bad thing".

Is it just me, or have certain Republicans gotten drunk on the same federal spending and federal authority that the Democrats imbibed during their long hold of Congress, and now those leaders find that big spending, big government and federal power, which they decried when unable to wield it, are actually kind of neat when pressed into service of our - at least, their - ideals?

When the the heat of the moment fades, and Congress' actions in the Schaivo case are seen in the cold light of retrospect, I think that it's going to be (or should be) even more of a failure point for the GOP as the immigration deabte, because this case pits the party's principles at war with...Its other principles. It pits the party which argues for rule of law and strict constructionism in Constiutional interpretation against the party which wants to save lives at any cost, Constitutional restrictions and the federalism be damned.

T-shirt ideas

Two witty t-shirt ideas that a couple of Snowe 08 volunteers threw back and forth:





Really only funny to people who live in Maine, but I like t-shirts that mix wit and politics.

911 services "optional extra" for vonage customers

Story.

What. The. Hell.

Texas sued Vonage Holdings Corp., the largest provider of Internet-based calling, accusing it of deceptive practices after a customer couldn't reach 911 emergency services using a Vonage connection.

Vonage subscribers Peter and Sosamma John, parents of Joyce John, were shot Feb. 2 in Houston as Joyce John tried to call 911 during a break-in at their home, according to the office of Texas Attorney General Greg Abbott. The parents, who survived their injuries, didn't specifically request 911 services when they signed up. Joyce John, who tried to reach authorities from an upstairs phone when her home was being robbed, received a recording saying that emergency services weren't available from the phone line, the attorney general said.

Abbott, who is seeking $20,000 for each violation, said Vonage's marketing materials don't make it clear that users need to sign up to make 911 calls.

Now the appellate court rejects Schaivo appeal

Story.

The ruling drew a similar assessment from congressional leaders, including House Majority Leader Tom DeLay (R-Tex.), the chief backer of the new law. "Congress explicitly provided Terri Schiavo's family recourse to federal court, and this decision is at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman," he said.

Judge finds no grounds for intervening in Schaivo Case

Story.

The 14th Amendment requires due process of law; the case was going to turn on whether there had been due process of law; the judge found that due process had been followed. IMO, it became pretty clear which way this was going to go when the Supreme Court refused to take the case last week.

##EDIT: I strictly refuse to take any moral position on this. I have no idea what the right moral answer is. I'm just commenting on the legal (or rather, constitutional) perspective.

Now even security will be outsourced

Pentagon looks abroad for new military purchases The Pentagon is increasingly shopping overseas for its weapons, ending a long made-in-America tradition that assured U.S. defense contractors of nearly exclusive sales to their best customer. The Navy's recent selection of a British-Italian design for the president's next helicopter demonstrated the breadth of the move toward foreign suppliers. The U.S. incumbent, Sikorsky Aircraft Corp., surprisingly lost to an international team led by Lockheed Martin Corp. In another blow to Buy America advocates, the Army will base the design of its newest spy planes on Brazilian-made Embraer jets instead of Georgia-built Gulfstream aircraft. Some in Congress worry that relying too much on foreign military suppliers would hurt domestic industries and raise national security concerns. They contend that foreign governments could choose to slow or stop production of U.S.-bound products when the Pentagon needs them most. While critics are concerned that the trend could reduce the already shrinking aerospace workforce, the Pentagon argues that foreign competitors are creating jobs. Last year, EADS NV, Europe's largest defense firm, opened a helicopter plant in Mississippi. Embraer SA of Brazil is leasing a 71,000-square-foot plant in Jacksonville, Fla., to assemble the Army spy planes. Foreign investment in the United States from 2000 to 2003 fell 12 percent, to $566 billion, according to a Pentagon report. But in the same period, foreign investment in the aerospace sector jumped 198 percent, to $3.4 billion.

Immigration again

Illegal immigration accross America's southern border is increasing:

A decade ago, the United States began trying to fortify the border, starting with Operation Gatekeeper in 1994. Since then, U.S. officials have added more patrols, lights and walls every year, especially since the attacks of Sept. 11, 2001. Yet instead of stopping illegal immigration, those measures have just made many Mexicans already in the United States stay longer, according to Mexican officials.

U.S. officials made 1.1 million apprehensions along the border last year, a 24 percent increase over the year before. It is unclear whether the rising apprehensions signify that more people are trying to cross or that a greater percentage are being caught. But experts in both countries estimate that perhaps 500,000 or more still make it through each year.

Mexican workers in the United States, including millions of illegal immigrants, are vital to the Mexican economy, sending a record $17 billion home last year.

John Hostettler (R-Ind.) noted that legislation passed by Congress last year authorized the addition of 10,000 new Border Patrol agents over the next five years.

"I was therefore deeply disappointed that his (Bush's) budget calls for an increase in Border Patrol agents of barely 10 percent of that called for by the Intelligence Reform and Terrorism Prevention Act," the Indiana Republican said.

The big tent

Someone asked me to justify why I consider myself a Republican. Here's some thoughts.

The short answer:

Because I believe in limited, constitutional and fiscally responsible government, in personal liberty and individual responsiblity, in a robust foreign policy, and a trade policy which puts American interests ahead of recalcitrant free trade dogma. I believe in a free society of equal opportunities for all, which means (among other things) that affirmative action has to go, and I believe that we have to take necessary, rational steps to safeguard the lives of the unborn.

And I just don't think that the Democratic party is interested in those things.

It's true that I differ from current orthodoxy on a number of policy points - but that can be measured to a great extent by how far the GOP has moved away from Nelson Rockefeller and Margaret Chase Smith. (Although, for the record, I would still consider myself to their right - I feel that I hover, slightly uncomfortably, somewhere between the libertarian, Rockefeller and neocon wings of the party). I think that there are times when government must step in because no other agency can - and the passage of the increase in FCC fines is an example of when the Fed HAS to take steps because someone must and no-one else can or will. Antitrust laws are another example - monopolization is antithetical to the free market. I don't think that a person who resorts to clever legal tricks to justify torture is someone who the Senate should have confirmed as our Attorney-General. I don't think that the way to save social security is to bankrupt the country further. I don't think that the way that Tom runs the House is healthy for the institution of the Congress (we're likely to differ on this, because my first love in politics is the Congress, while I think you hold in in quiet disdain, from your previous postings). But these are not Democratic stances (or, for that matter, Republican stances) - they're simply the conclusions I have to draw from the facts available. As much as I hate to invoke the ghost of Andrew Jackson, we are all charged with interpreting events and doing what we think is right.

Going live

The campaign to draft Olympia Snowe is delighted to announce that, as of this morning, the first edition of our website is now available at www.OlympiaSnowe2008.com.

The campaign, which is not sanctioned by Senator Snowe, aims to encourage the Senator to seek the Republican nomination to be President of the United States in 2008, to promote the Senator and her views, and to build a national base of support for her candidacy. We aim to send out a message of hope to moderate Republicans across the country: we are still a part of this party, and our voice will be heard.

This website is being launched earlier than scheduled, following press coverage in Maine, New Hampshire and Washington DC's National Journal Hotline. Although we will continue to develop the site in the forthcoming weeks, we hope that the site as it stands forms a strong introduction to Senator Snowe, and we encourage comments and views to be sent to feedback@olympiasnowe2008.com.

News coverage, now

From today's press:

There has been plenty of speculation about U.S. Sen. Olympia Snowe forgoing a third term on Capitol Hill to run for the Blaine House in 2006.

But the White House in 2008?

The creator of a new Web site, www.OlympiaSnowe2008.com, is hoping for just that, using the site to build support for an effort to draft Maine's senior senator to run for the Republican presidential nomination in 2008.

Interesting site

OMBwatch.

Interesting companion piece to SCOTUSblog and CongressWatch.net, maybe?

Washington politicians want to split the state

Paging Roger Waters…Story

Social Security update

The Hill reports on the sinking chances of convincing a reluctant Congress to fly in the face of their constituents' views.

In Montana:
The state’s member of the House — Rep. Denny Rehberg (R) — praised the president’s “Oprah Winfrey-style” approach to working the crowd. But he said he still wasn’t sold on privatization.

Montana Senator, Conrad Burns (R), said he would “continue to look at” the president’s plan but still had more questions, particularly about how to pay for it. ...a Times reporter asked Burns if he supported the president’s plan. Burns said he was still “crunching numbers” and worrying about the deficit.

To yet another reporter, Burns described himself as “intrigued” by the president’s plan but not ready to sign on. “Social Security is still a very, very important part of the retirement of a lot of seniors in Montana,” he went on to say. “So we’ll listen and we’ll look and we’ll probe ... and see what is in it for the next generation.”

Florida Rep. Ginny Brown-Waite, whose 5th District has more Social Security beneficiaries than any other in the country, relayed to crowds that she told Bush to his face in the limo ride to the event that she wanted to “proceed cautiously” and wasn’t ready to sign on to his plan.

Others from the area are finding more straightforward ways of dealing with President Bush’s plan. According to Wednesday’s Tampa Tribune, Florida Republican Reps. Bill Young, Michael Bilirakis and Mark Foley won’t even return phone calls to talk about the subject.

No wonder Representatives are skittish. Take a look at how Social Security reform polls. Only 29% of over-55s think that it's a good idea; by contrast, 48% (note: STILL less than half) of 18-34 year olds think it's a good idea. Note the demographics of who turns out to vote: the demographic most enthusiastic for Social Security reform accounted for only 17% of those voting in the last election. Of the groups most likely to vote - ages 30-59 - less than half are on board with the President's plan. The reality is that the shoe is on the other foot: the President now needs Congress more than Congress needs him, and if he is determined to impale himself on Social Security, I think he's going to be disappointed if he expects Congress - most of whom want to get re-elected - to jump on the rails with him.

Of course, neither opponents nor supporters of social security reform can take much succor from the polling data, because well over half of respondents (59% to be precise) admitted that they didn't really understand the proposal being put forward by the President. Indeed, so bamboozled are the electorate that 85% of those polled opposed cutting benefits for existing retirees (which is Sen. Snowe's position), but only 43% supported raising payroll taxes. What this boils down to is that that public, by turns, don't fully understand what they're being asked to sign on to, and therefore don't want to break a system that does - at least for the time being - work. This is exactly what Sen. Snowe has said, and it's a responsible position for a conservative and a Senator. Conservatives shouldn't recklessly throw ourselves into uncharted territory of reform and financial overextension until we're sure it's the right way to go, and Senators shouldn't give the slightest credulity to the executive branch's pie in the sky numbers - despite the rantings of the Club for Growth (and you really have to wonder if these people have read the constitution and digested the function of the Senate), Senators are paid to be skeptics.

Funny

Regarding Condi Rice

This from a letter I sent out to a couple of newspapers and blogs which ran articles on the gathering "draft Condi" campaign:

There have been several comments floating around the media and blogosphere of late, regarding the possible candidacy of Secretary of State Rice in the 2008 election; indeed, Dick Morris, writing for The Hill, called Rice "the woman who may stand between [Hillary] Clinton and the presidency". A handfull of websites - both more and less serious - urging Rice's candidacy have also appeared.

My problem with the Dr. Rice for President sites - and it's exemplified by the www.rice2008.com site - is: where's the policy? What does Dr. Rice think about Social Security reform? Healthcare? Abortion? Free trade? Education? The people who are founding these sites either don't know, or don't care to display it publically. It just feels to me like they're playing the numbers game and nothing else - they see a black, female Republican candidate in the public eye, and that's all they feel that they need to know.

But that isn't enough, and surely we should demand more of a potential candidate - a compelling personal narrative is part of a candidate's package, of course, but it isn't enough in isolation.

I've seen people online frequently advocating Dr. Rice's candidacy, and they always seem so enthusiastic - What exactly about her attracts them to her as a candidate, I ask them? What policies has she advanced that you feel particularly qualifies her for the Presidency? What do you actually know about Dr. Rice's view's on a wide range of important policy issues? What is Dr. Rice's opinion on Social Security reform? On healthcare? What is Dr. Rice's view on the appropriate relationship between the Federal Government and the States? Does she approve of a Presidential line-item veto, or does she favor the supremacy of Congress in the legislative sphere? What is Dr. Rice's opinion about the trade deficit, how it can be reduced, and what is her view on whether the callue of the yuan should be decoupled from that of the dollar? What steps does Dr. Rice offer in terms of the progress of the next generation of environmentally-friendly technology, and the role of the United States in their development? What is Dr. Rice's solution to the problems of public education and the decline of US competetiveness in math and "hard" sciences?

Of course, these are all issues beyond the ambit of the Secretary of State or the National Security Adviser, but they are most certainly within the ambit of the President. So let us turn to matters that are within Dr. Rice's job descriptions. What is Dr. Rice's view on how best to resolve the China/Taiwan situation, and how would she react to a Chinese invasion of Taiwan? What action would a President Rice take should the North Korean government collapse? If such a collapse ocurred, and if China should attempt to annex North Korea, what steps would she take? What is her view on the Cuba trade embargo, and how does she differentiate the trade embargo on communist Cuba from the trade free-for-all with communist China? What is Dr. Rice's view on the development of democracy within Saudi Arabia and its extension in Iran? How should the US seek to foster democratic reform in Africa without appearing high-handed or imperialistic? What are Dr. Rice's top five foreign policy goals during her term?

This is a very short list of extremely relevant questions - and thusfar, none of those advocating Dr. Rice's election have answered them, to my knowledge. The only rationale offered by supporters of Dr. Rice is that Dr. Rice is a black female Republican who is well-qualified to be Secretary of State and who might beat Hillary Clinton in 2008. I support Dr. Rice's elevation to Secretary of State - but to the Presidency?! Neither Dr. Rice nor any of her supporters have yet offered anything that convinces me that she should be given the 2008 nomination.

Now, obviously, these concerns ares exacerbated in my case because I'm (very publically) backing a candidate with an equally compelling story, and lengthy resume which superbly qualifies her for the Presidency, in my view, to back it up, Senator Olympia Snowe. While I play the numbers game too, and I would contend that Sen. Snowe's numbers match and better Dr. Rice's, Sen. Snowe backs up those numbers with three decades of public service, focused on the matters of great national import which a President will need to face.

Myself and a small group of volunteers are working as fast as we can to get the "real" website for Snowe 2008 into production, and it will include a full rundown of Sen. Snowe's views on any given issue. What's interesting to me is that many of the people who will criticize the views of Sen. Snowe that we display on the site will also sing Dr. Rice's praises - but while they will be told where Sen. Snowe stands on a given issue by our site, they will not find a similar explanation of the Secretary of State's views on any given issue on any of the Draft Rice sites.

Will Dr. Rice run? It seems perfectly likely. But my view remains that there is a far better candidate, should she be pursuaded to take the field.

Reality TV

Didn't I say that it was going to get worse and worse until someone killed themselves live on air? That outcome just got closer.

Tim Roemer gets it right

I'm not sure what the source of this quote is, but I believe it's from Tim's remarks in pulling out of the DNC Chair race:

"I got into this race five weeks ago to talk about the devastating loss we experienced in November," Roemer said in an interview. "It was not about 60,000 votes in Ohio. It was about losing 97 of the 100 fastest growing counties in the country. If that's a trend in business or politics you're in trouble."

Stating the blinking obvious

Story.

We've finally reached the point at which my brain turns to mush. First, a Republican President and Republican Congress manage to raise the ire of even the Cato institute over its budgeting. Then it manages to raise the ire of the ACU. And now, the Bush administration's budgeting process is even getting laughed at by the neoconservative press, the administration's alleged masters? This is beyond a joke. I'm going to wake up any time now.

What's objectionable to me isn't that the headline ethos is wrong - cut spending, reduce taxes - it's the sheer incoherency of the process. It's the idea that the White House claims to want to cut 150 discretionary spending programs, yet no-one seems to be able to provide a clear list of WHICH programs - even Josh Bolton, who Lord knows should know better than anyone else.

Let us hope that Chairman Lewis and chums are feeling like picking a fight with the White House over this. It all adds up to this ghastly pervading sense that nobody READS these damn documents. The budget is 2500 pages long, and sure, that's a long document - but if the guy who is supposed to sign off on it hasn't READ it, that worries me - because who has?. The only genuinely terrifying thing in Michael Moore's Propaganda 9/11 flick (for the record: he absolutely has the right to make it, and I absolutely have the right to bawl objections at the TV screen watchingit) was the interview with a Dem Congressman who gently condescended that it's a stupid idea to suggest that legislators should read all the legislation they vote on. Oh really?

Funny

Chairman Dean, apparently

Looks like Dean's momentum is now all-but unstoppable to get the DNC chair. Of course, didn't we all say that his momentum was all-but unstoppable before Iowa, this time last year?

http://www.washingtonpost.com/wp-dyn/articles/A55389-2005Feb1.htmlOn the other hand, I also predicted, following Dean's failure in Wisconsin, that if Dean was denied the nomination and Kerry lost the election, the Democratic party would fragment into all-out civil warfare between its liberal and moderate wings. I also predicted that, even if denied the nomination, Dean couldn't lose in terms of personal standing, and would do very nicely from his campaign, even if it ultimately faltered. From what I've seen, neither of these predictions were so very wide of the mark.

Intolerance from the tolerant party

With more than a whiff of self-congratulations, Democrats love to call themselves the tolerant party. However, that tolerance has never been extended to the millions of Democrats who hold the pro-life position on abortion.

At the 2004 Republican national convention in New York, featured prime time speaking spots were given to California Gov. Arnold Schwarzenegger and former New York Mayor Rudy Giuliani. Both men are unapologetically pro-choice on abortion. No pro-life Democrat at the party's Boston convention was seen or heard when the cameras were on.

But just maybe, Democratic leaders, after having righteously and tiresomely lectured the GOP to build a "Big Tent" in order to welcome pro-choice members, may actually, themselves, be starting to practice what they have preached. Consider the following items:

US gives up hunt for Iraqi WMD; Iraq Survey Group pulls out

Story.

I supported the war; I supported the war without regard for whether Saddam did or did not have WMD, and truthfully, I don't remember giving much thought to being concerned whether or not Saddam posed a threat to us. The liberation of Iraq was right because it was the right thing to do; that was my position then, and it remains my position now.

I was incorrect, of course, to claim at the time that it made no difference at all what the administration's motives were for going into Iraq; the rationale, I believe now, materially affected the postwar landscape. I've also posted in the past that I think that the Bush administration had many reasons for going into Iraq, but chose to emphasize WMD as the reason most likely to be marketable to the US electorate. That strategy is now in tatters - but of course, as Charles Krauthammer pointed out in Time magazine recently, Bush/Cheney are now unaccoutnable to an electorate which (Newt's predictions r.e. Cheney '08 notwithstanding) neither of them have to face, or be especially concerned with, ever again.

New "geek project" for me

One of the projects I've been working on for my employer may have useful applications for a project I'm interested in being part of. My predecessor created a content management system for about a dozen of the sites we host, which enables the customers to add and edit content on their own sites. It's very primitive. I've been developing a content management system that upgrades the existing system, but goes much further - it will allow an administrator to create users with various levels of permissions over groups of pages, such that there can be an administrator who has control over the entire site, and they can define a user or group of users which have control over only a subset of pages. I'm also upgrading the interface substantially so that it functions more like a message board (vbulletin, phpbb, webwiz, snitz, etc.), making it easier for customers who don't know HTML to put together fairly nice-looking sites. This is, in effect, an attempt to give people who don't know anything about web design a better option than frontpage.

Anyway, I've been thinking a lot about a project that I'd be interested in participating in (I'll go so far as to organize it, I'm just not capable of handling the volume of work involved on my own), which is a website that will act as both a watchdog on Congressional activity, and a clearing house for news, analysis and resources relating to the same. I don't think that there's any single website which covers all that ground.

We discussed an idea similar on the forumz just after the election, and so I'm thinking there may be mileage in the project, especially since the content management system I've been developing includes what are essentially group collabortation tools. Interesting project on many levels. ;)

Or, as I'm sure my wife would say, it's just an excuse to be geeky about three subjects at once. ;)

Christmas IS Christmas

Perciving themselves as key players in the re-election of President Bush, values voters are pushing a backlash against the secularization of Christmas.

What good may come…

Of Hillary's ambitions. Story.

Interesting article about how Clinton's desire to outflank the GOP may produce the meaningful reform of borders and illegal immigration that senior Republican leaders have resisted for years (mainly, the author notes, because they want to avoid diminishing support among hispanics).

Simon may or may not be okay…

Funny

The Democrats' Marketing Mistake

Interesting article from Trent Wisecup, discussing more possible reasons why the Democrats simply aren't making headway outside of their strongholds in the cities: The Democrats' Marketing Mistake

Racism in liberal thought

See article.

The Peterson Verdict

It sounds like the title of a Robert Ludlum thriller, but to California - where Scot Peterson has been found guilty on BOTH counts of murder: that of his wife...And that of his child. Who was unborn.

As much as there is an immediate human reaction of satisfaction at the verdict, which sees a man who brutally murdered his wife sent to the slammer, those of you on the pro-choice side should actually be looking long and hard at this verdict, because it effectively adds legal precedent to the deployment of Laci & Connor's Law, a piece of legislation which defines a child in utero as a life that can be ended, and defines ending that life as a criminal act separate to the murder of the mother. At the time of the bill's adoption, I pointed out that this was a clever way to change, subtly and slowly, the framing of the abortion debate without using the "A" word: to begin to shift the public consensus in the direction of accepting the child as a separate life. Anyone who thinks that this is paranoia should consider two things: first, that I'm not trying to oppose the measure, and in fact support it. Second, that the right wing is comfortable working in the long-term. After Barry Goldwater's defeat in '64 The Republican Party and its supporters spent over a billion dollars and forty years to fundamentally alter the tone of public debate in America, in order to create a more favourable electoral environment. The payoff came in Reagan's victory in '80, the Contract with America ending forty years of democratic rule in the US House in '94, and and the evisceration of the democratic party last tuesday (something I'll blog about later). My point is this: Laci & Connor's law didn't declare abortion illegal, but its intent and long-term view simply couldn't be clearer.

While this is not the first time someone's been convicted of killing an unborn child, it is as far as I know the first time that someone has been convicted under Federal law - and it sets a precedent for future prosections. The jury obviously accepted the argument that killing an unborn child is murder, otherwise they wouldn't have found him guilty on the second murder charge - and this is in California, "most liberal state in the Union" (TM). Expect the wedge to get fatter as we go.

Lastly, you have to think about something else, too: Peterson will appeal, and that means a Federal Judge will likely rule on this matter. They will almost certainly, of course, uphold the conviction - because what possible grounds could Peterson appeal on? He was convicted reasonably under the terms of Lacy & Connor's law, which leaves him one option: to appeal against the constitutionality of Laci & Connor's law itself. And that's a very, very tenuous argument - which is testament to the care taken in drafting the legislation. It's hard to envisage a result of an appeal other than a written precedent from a Federal Judge that upholds the definition of the killing of an unborn child as murder.

Ipswitch discontinue IMAIL

Story.

Ipswitch are discontinuing Imail!! I don't know exactly how much I can add to Joel's analysis, which is spot-on, beyond the unasked question: who the hell do they think their customer base is?!

Of course, one could argue that this is going to be a good thing, helping the undecided who need a push to jump to a Linux solution. But exactly what that solution is, I'm still undecided on...I know that my former employers have already jumped ship from Imail to a solution built on Postfix, so might have to take a more detailed look-see what they're up to.

Kerry campaign sinking by the day

A message posted on Michael Moore's website today advises Kerry supprters to stop being so gloomy - it'll be all right. No, really - it will! The opinion polls are just wrong!

Unfortunately for Mike, he seems to have disregarded he first law of reality, which states that political dogma cannot survive unfavorable contact with experiential reality. As of today's polls, Bush leads Kerry by over a hundred votes in the Electoral College. For those unfamiliar with this site, instead of going for the big headline (yet Constitutionally irrelevant) "national average" polls, it takes the results of respected opinion pollsters, state-by-state, to build a predicted electoral college. By that yardstick, Kerry is going down by the nose; he commands solid support in only eight states to Bush's nineteen.

Put simply, in my view, Kerry must win PA and FL, or he loses the election. Bush currently leads in both.

Preparing to feel overwhelmed again.

It's that anniversary tommorow. It still feels too close, too real. So real that the news that the Port Authority of New Jersey is taking legal action against Saudi Arabia over the WTC attack seems somehow shocking - although the question has to be asked, if Afghanistan was liberated for providing shelter and traning ground for the 9/11 masterminds, given that virtually all of the hijackers were Saudi, their masters were Saudi and their funds provided by Saudis, and given that Saudi isn't that much better than Iraq in the human rights stakes - can we assume that a campaign to liberate the Kingdom is not far off?

Photo

My wife and I, earlier today:

McDonalds outsources drive-thru guy

I swear, the first time I ever went to a Sonic's, I knew this day would come:

McDonalds outsources drive-thru staff

McDonald's franchisees in Cape Girardeau, Mo., Brainerd, Minn., and Norwood, Mass., recently began outsourcing their drive-thru order-taking to a call center in Colorado Springs, Colo. Thus, a Big Mac order shouted into a microphone in Missouri gets typed into a computer in Colorado (and a digital photograph of the customer's car is taken in order to reduce errors) and then clicked back to the originating restaurant's kitchen, which has the order ready in less time (30 seconds less, on average, with fewer errors) than the average McDonald's takes. [International Herald Tribune-New York Times, 7-19-04]

Feeling blessed

I rang the company that I interviewed with, and they've formally offered me a job.

I just can't begin to describe how blessed I fel right now....The heavens open, and out frops an incredible wife, we find a house that's just right for us the first afternoon we go out looking, I pass my driving test first time with no reservations, and I get offered a job the day after I'm legal to work, based on the only application I sent out.

People spend lifetimes asking for signs. I don't know, but I can't help but wonder... It's not that everything's being given to us on a plate, but we keep being offered opportunities at every turn, and when we take them we're being rewarded. I'm still waiting for the backlash.

More on gay marriage

On a couple of the message boards I'm on, people have challenged my interpretation of the constitution that the MA ruling has effectively legalized gay marriage nationwide. And I have to admit that on second reading, I was wrong, although they're not entirely right, either.

One poster in particular notes the second clause of Art.4 Sec.1:

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof