The Political Spectrum

Save this piece the next time you hear about the average IQ in the blue states being so much higher than the average in the red states.

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Good piece by David Brooks in the New York Times about one John Stout, a much better representative of evangelical Christians than blowhards like Falwell and Robertson. From Brooks' opening:

Tim Russert is a great journalist, but he made a mistake last weekend. He included Jerry Falwell and Al Sharpton in a discussion on religion and public life.

Inviting these two bozos onto "Meet the Press" to discuss that issue is like inviting Britney Spears and Larry Flynt to discuss D. H. Lawrence. Naturally, they got into a demeaning food fight that would have lowered the intellectual discourse of your average nursery school.

Bernard Moon takes on a similar topic in the Boston Globe. Sum of the story: Christians have brains, too.

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Unconfirmable raised some questions regarding yesterday's oral argument in Ashcroft v. Raich so I figured that I would impart what I know and witnessed yesterday at the Supreme Court.

First some background for those less familiar with the underlying facts and law (let's face it, even good SCOTUS reporters are often not lawyers so they sometimes miss the legal nuances). In 1996, by referendum, California voters approved the Compassionate Use Act, which permits under specific circumstances persons to obtain prescriptions for marijuana from licensed doctors (in the interest of full disclosure, I was a registered voter in CA when this was on the ballot. I voted, no largely because I felt that the law was poorly drafted and potentially allowed for widespread abuse). The conditions are too numerous to recount here and have little to do with the more interstate federalism elements of the case, but needless to say there is some dispute over California's ability to effectively enforce their own law and prevent people who do not qualify for compassionate use from obtaining it and then claiming it is "medical marijuana" as opposed to recreational pot.

The other relevant law is, of course, the Controlled Substances Act (CSA), which classifies marijuana as a "Schedule 1 narcotic" and prohibits its sale, production and distribution. The CSA, however, also makes it a federal crime to simply possess marijuana without any requirement that the marijuana have moved in interstate commerce. One of the named plaintiffs in the original actions, had received a prescription from her doctor under the Compassionate Use Act (CUA) and had begun to grow her own personal supply of marijuana. Somehow, I'm not clear how, the DEA got wind of this activity and raided the house, seizing the marijuana. To my knowledge, no criminal charges were filed, but nevertheless, several other similarly situated plaintiffs formed a group and sued the Justice Department for an injunction stopping the continued enforcement of the CSA as it applied to people growing their own personal marijuana in accordance with the CUA. The basis for the claim is that the CSA is unconstitutional as applied to them because it regulates intrastate possession and not interstate commerce. Thus, the possession section is beyond the scope of Congress's power under the Commerce Clause. (To my knowledge they did not raise a 10th Amendment claim in this case, largely, I believe, because of the result in United States v. Oakland cannabis Buyers Cooperative, 532 U.S. 483 (2001).)

At first blush this case appeared to me to bring directly to the forefront the underlying tension between the Court's 1937 decision in Wickard v. Filburn and its more recent decisions in U.S. v. Lopez (1995) and U.S. v. Morrison (2000). However, after having the privlidge of attending oral argument yesterday, I'm not as sure that these issues will be adequately resolved. (For a blow-by-blow account of oral argument see Prof. Lawrence Solum's excellent transcript at this link. I don't know how he did it, but it is very, very accurate.) I'm going to assume everyone knows what these issues are, but if not leave a note in the comments and I'll elaborate.

The government focused much of its argument on the section in Lopez that appears to allow for regulation of purely intrastate activity if it is part of a larger regulatory scheme. In other words, the government took the position that the aggregation principle that was employed in Wickard is applicable here, because the individual possession of marijuana, regardless of its purpose, has an substantial effect on the overall market for marijuana, which Congress, by enacting the CSA, regulated (i.e., by eliminating it). The respondents, represented very ably by Randy Barnett, a B.U. Law Professor and contributor to the Volokh Conspiracy, countered by pointing out that the activity in question here, possession of intrastate, homegrown and personally consumed marijuana regulated by California's statute, is non-economic activity. The very same class of activity that the Court in Lopez placed the possession of guns in schools zones in, and in Morrison, extended to include violence against women. In other words, according to Barnett, medical marijuana is like guns in school zones and violence against women, non-economic, and therefore, beyond the reach of Congress's power to regulate interstate commerce. He also pointed out, as did the Ninth Circuit, that there was nothing on the record that established any of the marijuana in question traveled across state lines or into the market for illegal drugs in any way. Further, there was no showing of a commercial transaction in any sense of the word, no sale, transfer, barter, trade or other kind of exchange has ever been claimed by the government.

So we are left with the question, what is medical marijuana? Is it commercial activity in the sense that it affects the market for illegal drugs that Congress has regulated, or is it non-economic activity subject only to regulation by the State of California. The answer is likely that it is both, depending on the situation in which the good is seized. Not a very compelling answer, but the only one that appears to make sense. For it is reasonable to assume that the people who are growing their own supply would otherwise have participated in the illegal drug market to obtain their goods, it is possibly commercial in nature and subject to Congressional regulation. On the other hand, absent a showing that this is the case (which may be impossible) it seems reasonable to infer that the drug never traveled in interstate commerce and is not being used as a substitute for the illegal drug; and therefore, is non-commercial, non-economic and cannot be regulated.

Regardless of which side anyone comes down on, the impact on commerce clause jurisprudence is bound to be huge, giving fodder to law professors and lawyers for years to come. My personal predication is that the government will prevail with Justice Breyer writing for possibly only a plurality of the Court. The only question will be what effect, if any, will this case have on Lopez and Morrison, my guess, as little as possible.


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Is there any legal significance that the medical marijuana case is about medical marijuana? There is plenty of journalistic significance, given the amount of coverage of yesterday's OA.

For instance, is there anything in the lower courts' decisions that bring up the specter of privacy of a doctor-client relationship? Is there anything about historic state regulation of doctors that grounds a 10th amendment argument, as is being raised in the assisted suicide case?

On that second point, do the relevant state statutes regulate prescription at all, or just usage? I think it must extend to prescription (which might provide a legal relevance to its being medical marijuana, in answer to my initial query).


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Christmas, Christmastime is here
Time for joy, time for cheer - Alvin and the Chipmunks

What a lovely night as I put up my holiday tree, and decorate it with my holiday ornaments as we begin the pre-holiday season that culiminates with the celebration of the glorious holiday of HOLIDAY. For that is the day we commemorate the birth of Jesus Holiday, the saviour of the retail mall. It is a joyous occasion for us Holidayians, whether we be Roman Holiday or Lutherdays, Presbyrholidayian or Church of Holiday. I can't wait personally for midnight mass on Holiday Eve, when the entire choir gets up to sing "For Unto Us a Holiday is Born."

Okay, okay, I ran the damn joke into the ground, but it is something that merits at least half-serious discussion. Apparently it is okey dokey to commercialize the celebration of birth of our Lord and Saviour, but it is not okay to publicly display anything that memorializes this event beyond some tacky display of Santa Clause and his eight venison, umm, I mean reindeer.

Surely when the Christ child came into this world he came to bring not just redemption of sin but also great Friday-after-Thanksgiving bargains at your local mall. One could go on and on about the terrible dichotomy between the humble birth of Christ as compared with the greed of retail store merchants, and in fact I intend to do just that.

Actually, these merchants are not to blame for capitalizing on, well, capitalism. As millions flock to stores it would be a tad idiotic to pretend it's business as usual. What's more disheartening are the hordes of crowds who will spend more time looking for something to buy than they will in Church during the Advent season. But at least most of them will show up in Church like the hypocrites they all are. Ah yes, nothing is more honorable than the C+E Catholic who makes their twice yearly pilgrimmage to Mass on Christmas day. It is easy to spot them - they are the people who kneel, stand, and sit several seconds after everybody else because they have forgotten all the parts of the Mass. And just like John Kerry, they too will take Holy Communion when they ought not. But I shall judge not so that I am not judged, for certainly I am not without sin.

It is, after all, the Christmas season, and despite the crass commercialization, it remains my favorite time of the year. After all, Advent is nothing if not a time for hope and joyous expectations. There is much to lament in this broken world, but yet there is so much to be thankful for.

So ho, ho, ho. Go out and be merry.

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Bill O'Reilly, whose relevancy continues to decline astronomically, comes to his own Dan Rather's defense in his Daily News column today. Read this paragraph, and tell me who you think he's really talking about

But you'll be seeing more of this kind of thing in the future. All famous and successful Americans are now targets. Unscrupulous people know that any accusation can be dumped on the Internet and within hours the mainstream media will pick it up. It will be printed in the papers, discussed on radio and TV and become part of the unfortunate person's résumé whether he or she is guilty or not. A click of the Internet mouse can wipe out a lifetime of honor and hard work. Just the accusation or allegation can be ruinous.

Yes, it's all the internet's fault in your Rather's scandal. Let's not blame you Rather for your his bad judgement.

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Tonight I concluded my tour of the northeastern metropoli, and now I actually get to stay at home for a whopping three and a half weeks. Over the past month or so I have been awed and inspired by the vast intellectual superiority of the residents of these most blue parts our our great Nation. Clearly northeasterners have earned the right to mock southerners for their supposed stupidity and irrational behavior.

Or not.

You see, it really doesn't matter if you live north or south of the Mason-Dixon line, there are plenty of complete idiots in both regions of the country. This is exemplified no more plainly than by driving through the northeast. First of all, it is apparent to me through several trips that no one in the blue state of Pennsylvania is capable of driving a car. Unfortunately, the inability to operate a motor vehicle is not confined to just Pennsylvanians. Shortly after leaving the District of Columbia on Wednesday afternoon to head home for Thanksgiving we experienced a traffic jam that lasted until, oh, Canal Street in New York. The traffic jam seemed to have been exacerbated by the rain that was falling. You see, people lose the ability to drive when rain falls from the sky, (and in the DC area, anything else for that matter. Have you seen what happens to this city when it snows?), and as such traffic just stops.

There was a brief respite from the traffic. Instead of hopping on the Turnpike after the Delaware Bridge, we decided to take I-295, which runs parallel to the Turnpike (and is toll free). Despite the fact that there are signs everywhere to do this, very few people ever choose to take this much, much, much faster alternate route because, you know, that constitutes doing something different that what is usually done. Well, good for the rest of us, because it represents a break in the awful traffic we experience for 225 miles.

I was also struck tonight by the human inability to call audibles, as it were. After exiting Amtrak at Union Station at about 12:30 in the evening, Metro was no longer an option. As I suspected there might be there was a huuuuuuuuge line for taxis. Now, it seems there are three options at a time like this. A)Wait in line for half an hour or so for a cab. B)Walk a block or two and, in all liklihood, catch a cab on Massaschusetts Avenue, or C)Walk accross the street and catch one of those livery cabs and pay an extra buck or two. Hmmmm, now, we can all make different decisions and they are all perhaps equally legitimate, but only one of the above mentioned options has you home later than one in the morning. Just saying is all.

Yes it is 1:18 in the morning and perhaps I am a little cranky, but sometimes humans seem just so goshdarned funny to me.

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Enjoy this day of thanks and praise. Have fun with your families, friends, or with whomoever you might be spending the holiday.

God Bless America.

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Paul raises fair points in his previous post, I didn't want to be read as impuning the motives of any member of Congress, because I do believe that each of them (even ones I disagree with) do attempt to act in their best judgment and do what is best for the country.

My point was that we should try to whenever possible call a spade a spade. Duncan Hunter likely does have principled motives for opposing the Intelligence Reform Bill, however, it is my opinion that the publicly expressed motive and the privately held motives may in this case be different. There is a well known theory of regulation know as the "capture theory," which contains several elements: the first is that firms/agencies capture the regulatory process because each firm/agency has a lot at stake; second, is that while the public as a whole has a lot at stake, any one person has only a very small stake and so has little incentive to invest resources in affecting the regulatory process; third, there are few firms/agencies relative to the overall public, thus the costs of organizing to be effective is greatly decreased and; finally, firms/agencies have the incentive and the opportunity to successfully invest resources in lobbying Congress/regulators for favorable legislation/regulation. In this case, simply substitute DOD for the firm and Congress for the regulatory process. Now does this mean that the people involved are not acting from the purest motives, no, clearly it doesn't account for that at all. The theory simply recognizes what in some cases can be verified factually, which is that DOD and other agencies have captured specific members of Congress, (House and Senate Armed Services Committees) and are highly successful at controlling both the regulatory, oversight, and budget processes and ultimately have become experts at preserving their own self-interests, which in this case includes control over the intelligence budget.

Again, I reserve judgment on the ultimate issues to those who know them better than I. It may well be that the Pentagon is the best place for the entire intelligence operation. Further, it may well be that the Pentagon is the best place for the money to go first as they have the resources and experience necessary to most effectively allocate it to protect us both at home and abroad. All I was trying to say was that there is more here than meets the eye, and that those factors shouldn't be lost when evaluating what our elected officials are doing in Washington.


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While I know some people might think it inconceivable to think that Republicans might fight against or for a piece of legislation because they think it's the right thing to do, I would submit that cynicism is not always warrented. Maybe, just maybe, Duncan Hunter and James Sensenbrenner see the intelligence reform bill will do more harm than good. It is quite possible that Hunter has alterior motives. In fact Tom Donnelly of the Weekly Standard seems to think so.

Duncan Hunter has another agenda: His son is a soldier in Iraq. He has a visceral understanding of how important it can be to know what's around the next corner, whether there's someone in the next room, and how useful it can be to have a satellite telephone close at hand. Hunter has the tacit support of Defense Secretary Donald Rumsfeld (who has to keep his counsel because of the White House's campaign decision to appear to stand with the intelligence reform movement), and the overt support of JCS Chairman Gen. Richard Myers. Using a time-honored congressional maneuver and knowing that the Joint Chiefs have a legal requirement to provide Congress with unvarnished military advice, Hunter demanded that Myers state in writing his views about the intelligence bill. It's hardly a surprise that Myers thinks the legislation is a bad idea, but this has flummoxed the reformers. John McCain, who sponsored the bill creating the 9/11 Commission, called on the president to get Myers back in line.

Mouldfan also says I don't actually know if creating a National intelligence Director is a good idea or not, nor do I know whether better intelligence could have prevented 9/11 or other similar attacks that may or may not occur. More to the point, I don't really see how anyone could claim to know. Fair enough, but the folks in DC are supposed to have an idea of whether or not the legislation they are putting into place will have beneficial or deleterious affects on our country. Congressmen are not precogs who know for sure that they are doing the right thing, but they for damn sure must be able to make an informed guess.

Mouldfan also writes, Now, don't misunderstand me, there are very good arguments in Rep. Hunter's favor, however, preserving the "military chain of command" isn't one of them. Well it's a good thing Mouldfan is certain of this, but more than a few people with extensive military backgrounds believe that this would seriously hamper our military operations, and maybe, just maybe, Duncan Hunter, Chair of the Committee that is primarily concerned with such matters, would prefer not to put into place a program that would put people like his own son in danger.

It's easy to be cynical in this part of the country and to impugn the motives of one's opponents, but believe it or not sometimes members of Congress actually do what they believe is right for the country.

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For once it seems that Paul and I actually agree on something. I concur with his feelings of frustration regarding the majority of the electorate who think that the President is one step short of King and that Congress is somehow the red-headed stepchild that needs to be locked in a room. Co-equal branches of government means what it says. Congress and the President are EQUAL, dispute what those who propose the unitary executive would like to think.

That being said, there are deeper issues at play with this intelligence reform bill than Paul or Reps. Sensenbrenner and Hunter let on. This is all about politics and has very little to do with actual policy. I don't actually know if creating a National intelligence Director is a good idea or not, nor do I know whether better intelligence could have prevented 9/11 or other similar attacks that may or may not occur. More to the point, I don't really see how anyone could claim to know. In other words, this is all about perception and opinion. On the other hand, there really are some differences in policy here, I just don't think they are the ones that everyone is talking about. Sensenbrenner and Hunter use the phrase "military chain of command," claiming that it "is a life-or-death issue for our war fighters in Iraq and Afghanistan" and that somehow there are provisions in this bill that place our troops in danger. A good argument, powerful, persuasive, and above all, plays well in the headlines. Of course it also has the advantage of masking the real issue. What is the real issue, you ask? MONEY. More specifically, control of the money. Don't forget where Rep. Hunter is from. He represents southern San Diego, California, home to several military installations (including Mirmar Naval Air Station, famous for Top Gun) and more importantly a lot of Department of Defense (DOD) contractors. Now, these DOD contractors depend on the Pentagon's control over federal money to make money. Should the DOD loose budgetary authority to an NID these contractors loose potential contracts. Lest anyone forget that we are talking about anywhere from $20-100 billion dollars here (no one really knows for sure because the overall intelligence budget is classified), a lot of contracts for sure. Now, don't misunderstand me, there are very good arguments in Rep. Hunter's favor, however, preserving the "military chain of command" isn't one of them. In fact, it may even be fair to say that Rep. Hunter is doing exactly what he is supposed to be doing, i.e., representing the interests of his constituents. In other words, Rep. Hunter is by withholding support for something that arguably harms his economic base, and weakens his district, simply being a good congressman.

Rep. Sensenbrenner on the other hand, is a little harder to crack. As chairmen of the House Judiciary committee his interest in this bill is more than justified, however, unlike Rep. Hunter it is harder to tie his position to his home district and its economic impact. Rep. Sensenbrenner is interested in immigration, specifically drivers' licenses. This is in fact a major policy difference with the White House that has been playing out for months. What Sensenbrenner wants is in many ways a de facto national ID card, he's just knows that using those words will ensure that he looses, so the phrase becomes "national standards for drivers licenses." Again its harder to fault Rep. Sensenbrenner for sticking to his guns without totally attacking him for the end run around smaller government, privacy, individual rights, state's rights, and other "constitutional" principles that many in his party hold dear (unless defense spending or national security is an issue, then many of them seem to wilt from the smaller government, more state's rights line) (Kudos to former Rep. Bob Burr for his outspokenness against a national ID card). So rather than get into the nuances of national id's and immigration policy, I'll just say that Sensenbrenner's interest aren't all they are being made to be and that it is in my opinion fair to say that he is playing politics at a very high level and appears to be winning.

Long story short, while it is good to praise Congress for their independence, be careful not to attribute the wrong motives to the specific members at issue. While they may be right, they are still political operatives and supporters of the President. This is, in my opinion, a blip on the GOP unity radar screen and should be taken with the appropriate grain (block) of salt.


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Elections were held in the Ukraine over the weekend, and the results are very much in dispute. The pro-Russian Viktor Yanukovich has evidently defeated the pro-western Viktor Yushchenko, though the results are so suspicious that even Jimmy Carter would have to admit of doubts. The Telegraph reports:

In scenes reminiscent of the fall of the Iron Curtain in 1989, more than 200,000 anti-government demonstrators cheered on Viktor Yushchenko and called for his pro-Kremlin rival to accept electoral defeat. Many later broke away from the main protest in a sea of orange opposition flags to surround the presidential building in Kiev, the capital, where they were met by the police line. . .

...The crisis in Ukraine erupted after Viktor Yanukovich, who favours closer ties with Russia, declared victory in a presidential run-off held at the weekend. The poll was widely condemned as rigged by western observers.

The dispute widened last night as Russia's president, Vladimir Putin, congratulated the pro-Moscow candidate and called for law and order to be upheld.

But pro-government miners threatened to descend on Kiev and two buses of volunteers were said to have arrived in the capital. In the Russian Duma, ultra-nationalists urged military intervention.

The outgoing president, Leonid Kuchma, who may face corruption charges if the pro-western camp gains power, had warned that he would not hesitate to use force against the demonstrators if disorder was threatened. But last night he held talks with Mr Yushchenko aimed at avoiding bloody clashes.

This is something that needs to be given closer attention that it has received thus far by our useless media. There appears to be a serious effort afoot by Vladimir Putin to expand the Russian empire, and though we have forgotten all about the menace of the Russian Bear, we should keep a very cautious eye on this part of the world.


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My new political hero is Jim Sensenbrenner of Wisconsin. Over the weekend he led a coalition of Republicans that stalled implementation of the plans for imtelligence reform. Sensenbrenner's main problems with the bill can be read here. He writes, "the 9/11 reform bill is currently snagged by the Senate's refusal to address three critical issues: Should states continue to issue driver's licenses to illegal aliens? Should we tighten our asylum system that terrorists exploited to such deadly effect? Have we ensured the military chain of command is not broken in our intelligence restructuring?"

My kudos go to Sensenbrenner and his colleagues for several reasons. First of all, it is incredibly irresponsible for Congress to blindly adopt the recommendations of the 9/11 Commission Report as though the Commission members were all political prophets whose words we are to treat as divinely inspired. At the very least we should more carefully look at this bill and determine whether we should in fact implement these recommendations. I believe that Sensenbrenner and columnists such as Brendan Miniter, who wrote in today's Opinion Journal, raise tough and reasonable objections to the legislation before Congress. Even if the reforms all happen to be good ideas, we should not rush so freely to put these reforms into law before there has been adequate debate. It was incredibly aggrevating that Kerry demagogued this issue during the campaign, and it is disheartening that President Bush seems so eager to follow Kerry's advice.

Which leads me to the most important reason to praise the House Republicans for their actions. It seems they have rediscovered that they are an independent branch of the federal government and do not have to simply do whatever the President tells them to do, even if he is the leader of their political party. This may sound strange coming from a proud Bush supporter, but nothing drives me battier than the fact that Americans view the president as some sort of omnipotent being who is completely in control of all events, while at the same time ignoring the fact that there is this thing called Congress. It is crucially important that Congress assert itself as a vital and thriving institution with its own independent power base. The greatest blessing of this republic is the separation of powers and checks and balances. The Framers did not desire a runaway democracy, and the system that they created was designed to curtail rampant majoritarianism. Unfortunately too many people, especially the folks at the American Political Science Association, seek to turn America into a parliamentary system, and it has seemed at times that the folks in Washington were all too ready to oblige. Luckily for us certain people in Congress are not so eager to lie down for their President.

Actually, as a Republican it is good to see that members of Congress are being so diligent in their duties. Allowing the President and the President alone to set the agenda is wrong, no matter how many good ideas he may or may not have. Congressmen have a separate responsibility to contribute to the agenda. That's what drives me nuts about Kerry - he was a member of the Senate for 20 years, yet it took a run for the presidency to have any ideas of his own. He's certainly not the only one, but he symbolized the basic attitude that only the President can set the agenda. Hogwash, and I applaud the independence on display on Capitol Hill. Bravo, and keep it up.


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Listened a couple of times at work, but only now did I get the chance to sit with the album. It's brilliant, bloody brilliant. It is definitely their most complete album since Achtung Baby and ranks right there with it and The Joshua Tree. Get it, listen to it, and enjoy.

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From ABC NEWS:

Dan Rather announced today he will step down as anchor and managing editor of the "CBS Evening News" on March 9 — 24 years to the day after his first broadcast as the network's anchor.


Rather will stay with CBS News, working full time as a correspondent for both editions of "60 Minutes," and taking on other assignments as well.

Perhaps Rather will now have the extra time to investigate the true story behind the memo scandal. I expect him to work almost as hard as OJ Simpson has in finding the real murderers of Nicole and Ron.

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I don't know about anyone else, but I used to enjoy getting Cracker Jacks at the Dodger games that my family used to attend (this was of course before the huge price increases and thousand dollar braces that I had). I used to think at the time that the best part about Cracker Jacks was the "Toy Surprise." Looking back, however, I realize that not only were the toys not all that great, but also that the sugary snack isn't very good for you either (still tastes good though). More to the point I discovered that hidden suprises more often than not aren't all their cracked up to be (pun intended).

This little parable leads me to the numerous stories regard the hidden provision in Congress's $388 Billion Omnibus spending bill that failed to pass on Saturday. In case anyone is wondering what the heck I am talking about, the basics are as follows: As many know, Congress is required to pass legislation that authorizes federal spending for a fiscal year, in this case fiscal 2005, which started October 1. Without this legislation, other branches of the government, specifically the executive, but also the judiciary are not allowed to spend any federal money. These bills, known as appropriations, are complex and are often laden with special projects, funding requests and studies. They are not supposed to contain permanent substantive legislation, but like all other things in Congress, there are ways around that as well. For this year Congress failed to pass 9 of the 13 required bills prior to October 1, and was forced to pass a continuing Resolution (CR), which authorized the federal government to continue operations, but at the same funding levels as was approved for fiscal 2004. In other words, no increases for inflation, additional expenses, or newly enacted mandates. The CR was set to expire on Sat. Nov. 20, and by that time Congress was supposed to have passed the remaining appropriations bills. To make accomplishing in a little over a month (actually about 2 weeks considering the election) what couldn't be done in a year, Congress rolled all of the outstanding bills into one mammoth bill knows as an Omnibus (meaning providing for many things at once). The bill estimated at more than 3,000 pages, was all set to be enacted when several astute Senate aides apparently noticed a provision that permitted House and Senate Appropriations Committee staff members to have access to IRS facilities that contain taxpayer records. The real kicker was that the provision also apparently removed any privacy or security safeguards that would serve as a deterrent for divulging the otherwise private information contained in the tax returns. According to the Washington Post's article today, the provision was added by "lower level House staffers" who never presented the bill to the Committee or the full House or Senate for debate. The result was that the provision needed to be stripped from the bill, which due to rules of the House and Senate is not permitted by amendment, because Omnibus bills can't be amended (which is what allows them to move quickly). Thus, the bill was stopped on the House floor, needs to be redrafted, and then voted on next week. This required, instead of a completed federal budget for FY 05 a new CR which now expires on Dec. 6th or 7th.

Now its bad enough that Congress can't do its work on time and has to resort to these measures to complete its constitutionally required job, but its even worse when things like this happen. Leaving aside the policy implications of such a provision, the fact that this was placed in a bill that no one had time to read, much less go over with a fine tooth and comb destroys the very transparency that this government was built upon. While Omnibus's provide a much needed way of moving must pass bills though Congress, they also provide, as we have seen, a vehicle for abuse of power, which is precisely what happened here. Congressional Leadership and Committee Chairmen control the entire Omnibus process and have to approve of every addition and subtraction from such a bill. To have allowed such a controversial provision into a bill that they knew would not be noticed, nor debated, is, in my opinion, not only egregiously irresponsible, but a plain abuse of power. I'm glad that they got caught this time, because who else knows what is contained in those 3,000 pages. They have a week to find out, let us hope that there was only one surprise in this Cracker Jack box.


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Where has the time gone? It seems but a short time ago that we were all in college, ready to face the challenges of a new and exciting world. And now we have arrived at this tender age some years later, witnessing our friends getting married, maybe having children of their own, and we are confronted with the fact that we are kids no longer. That guy you knew who was dying of a badly laced marijuana o.d. has now settled down. Scary stuff.

Such thoughts cross the mind as one witnesses yet another dear friend take their wedding vows, vows that perhaps you yourself were scheduled to make in the near future, though in an age now seem long forgotten. And the frivolities of youth seem to pass in the rearview mirror.

But as Eddie Vedder once sung, "Everything has changed. Absolutely nothing's changed." And so we prepare to head home for our Thanksgiving holidays, ready to "celebrate" the great American holiday with an evening in some bar. Did you know that the night before Thanksgiving was the biggest bar night of the year, surpassing even New Year's Eve? Makes sense. Thanksgiving Thursday is a day everyone has the day off. Many college kids come home, or perhaps post-grads even, and we congregate with our old chums and sing songs about the good times, and sings songs about the better times.

And we gather together to celebrate what exactly? We give thanks this Thursday, but to whom and for what? To God for the blessings He has granted us that have been so blessed as to have been born into this Nation. Thank God you say? Why, that would violate the separation of Church and State? Yeah, because we all know that this Nation was founded upon secularist foundations. So let us give thanks to Snoopy and Garfield for the blessings they have bestowed upon us this year.

But in all seriousness we have much to be thankful this Thanksgiving Thursday, and I was reminded of this fact this past week as I watched the dedication of the Clinton Library in Arkansas. As a member of the Republican party I am particularly grateful for the Clinton presidency. Let us flash back to the year 1992. President George Bush was preparing to become the sixth Republican in seven tries to win election to the Presidency. At the same time, the Democrats began to defend their 38-year control of the House of Representatives. Well, the Democrats successfully defended their control of the majority in both the House and Senate, but they were able to win back the White House. And who can forget the glorious success of America's greatest politician ever, the charismatic superhero from Arkansas - the man who managed to touch so mnay hearts with his inspired rhetoric and vision of the future. Oh yes, who can forget the inspiring campaign of the man from Hope, the man who so inspired the Nation that he commanded a whopping 43% of the vote on his way to victory?

And that man has become the shining beacon of the Democratic party. Last week we celebrated this man's soaring legacy, a legacy that every politician in America can only hope to emulate one day. How many men in American history can say that they ended their own party's 40-year monopoly grip on Congress? How many men can say that they were responsible for the final push that lead to the South's complete abandonment of the Democratic party, a party that the South had managed to support for a mere 194 years?

Before he took office the Democrats controlled most of the governorships accross the US. Before he took office Democrats contolled most of the state legislatures. Before he took office the Democratic party controlled party id in almost every poll. Now that has all been erased and in fact been reversed. How can we not celebrate a man who accomplished so much in so short a period of time? We are talking about a clear political genius, a suave politician that garnered so much popularity that he coasted to re-lection with nearly 49% of the vote. This is a man who was so popular that his Vice President came within a mere 527 votes in Florida of winning the presidency. Reagan's VP only won election by several million votes. How sad.

We have much to be thankful for this Thanksgiving. As we all give thanks to some ethereal being that certainly is not God (after all, we have separation of Church and State, and we would never ever think of giving thanks to some sectarian being, except of course that time Washington did it, or Adams, or Lincoln), let us most of all give thanks for our health and well-being.

And please, let us give thanks to the brave men and women serving in our armed forces. They are what allows us to write in these silly little blogs of ours. God bless you all.



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It is being reported that a September 11-style attack was thwarted in Great Britain.

Britain's security services thwarted a September 11-style attack on targets including Canary Wharf and Heathrow Airport, according to reports.

The plot is said to have involved pilots being trained to fly into target buildings including London's famous financial centre and the world's busiest airport.

It is one of four or five al-Qaeda planned attacks, since 9/11, that have come to nothing, after the authorities intervened, reports claim.

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It's official: the Expos will be renamed the Nationals when they move to DC next season. Sort of bland, but beats the hell out of the Wizards.

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Kudos to Paul and his internet savy co-worker(s) who fixed the formatting errors that I so gallantly failed to remedy this morning. Beer and/or other intoxicating beverages shall have to be provided to them at the next available opportunity.


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It seems that my comments as well as Publius's musings on the constitution have stirred some emotions and the well used phrase "judicial activism" has reared it ugly head again. I'll give you all my thoughts, but I don't promise them in any order, but here it goes.

First, let me start with Lopez and Morrison. As everyone, or almost everyone, is aware these two cases purported to place and outer limit on Congress's power to regulate interstate commerce. Both struck down democratically enacted statutes, in Lopez it was the Gun-Free School Zone's Act, while in Morrison the legislative victim was the Violence Against Women Act. One can debate the merits of these pieces of legislation ad nasuem, the focus of the Court's opinions, however, was whether Congress had the constitutional authority to enact these laws. In both cases the Court held that Congress did not and does not have this type of power. What is troubling to myself and many constitutional scholars, was not the ultimate outcome of the cases, but the reasoning used to get to that outcome. It would be one thing, if as Paul suggests, the statutes clearly violated the commerce clause. However, as much as he would like to resort to "textualism" or "originalism" in this instance, there is precedent, specifically Wickard v. Filburn, to deal with, and for 8 of the 9 Justices this presents a problem that must be dealt with. (Justice Thomas is the outlyer on the issue of stare decisis) Herein lies the problem, in my opinion, with Morrison and Lopez, neither overruled Wickard, in fact both cited it approvingly, and the Court's own distinctions don't appear to withstand close examination.

Best as I can tell the distinctions between Lopez and Wickard, was that in Lopez, there was no "commercial" activity involved in transporting a gun into a school zone. That may well be true as a factual matter, however, there are many federal statutes where Congress has regulated things that do not arguably involve commercial activity. Most, if not all possession crimes at the federal level involve no "commercial activity" unless one argues that possession in and of itself is commercial or economic in nature. Possession of drugs, guns and other contraband are prosecuted in federal courts everyday and no one (save for the respondents in Raich v. Ashcroft) is apparently bothered by this at all. Personally, I'm willing to live with Morrison and Lopez if in fact they means what they say they mean. My fear is that when confronted with alternative situations and more popular statutes like the Controlled Substances Act or the Child pornography Prevention Act, it won't really mean what it says and then the Court will have succeeded in nothing more than further complicating an already rich and complicated history. The Court in my opinion can't have it both ways and neither can "law and order" conservatives, in other words, if possession of gun in a school zone cannot be the basis for federal jurisdiction, then neither can possession of drugs, guns, pornography and other things that Congress has declared citizens can't lawfully possess. (Libertarians will be ecstatic about this proposition, social conservatives or "law and order" types less so)

Last point, judicial activism. I don't really have much to say about this because I think the phrase has lost all meaning. Activism is another way of saying that I, or people who think like I do, don't agree with the decision of a court, or a judge; therefore, the judge is an activist. Every proponent of "origianlism" or "textualism" runs into a problem implementing their theory because it just simply doesn't in all cases comport with the role that Courts play in our system of government. The classic example is Brown v. Board of Education. This decision is nearly impossible to justify on "originialism" or "textualism" grounds, yet everyone from Scalia to Thomas to Bork, believes that it was the "right" or proper decision. How? Bottom line, they stray from their philosophical underpinnings to do what it "right." Does this mean their theories and philosophies have no merit? No, of course not, in fact they are powerful and dominant points of view in today's jurisprudence, however, it does mean that strict adherence is not always possible or desirable. Conservatives are "activists" too, in some cases worse than liberals have ever been. Hence my claim that the phrase has really lost any and all possible meaning in the modern debate over the role of courts and the judicial system.

There I've said my piece, now let the attacks begin.


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Haloscan commenting and trackback have been added to this blog.

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I'm trying to correct the funky formatting that has moved our right hand column to the bottom. Thus, please bear with any minor changes you might see.


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Publius, over at Legal Fiction (who evidently reads this blog, hello), has this insightful if misguided piece on what he sees as conservative judidicial activism in regards to the economic sphere. I'll try to keep the quoting to a minimum, so please read his piece first to get a better understanding of what he says. Good. Now in case you were lazy and didn't click, here are some highlights:

All congressional actions must be rooted in some grant of authority in Article I. The Constitution is silent, however, on which branch of government gets the final say-so on whether a congressional action is in fact within the enumerated powers of Article I.

Now this is verrrrrry interesting. The Constitution is in fact silent on what branch of government has the final say on all constitutional matters, but you wouldn't know that reading most left-wing pundits and scholars (and most conservative ones as well, quite frankly). It is rather odd though perhaps gratifying that Publius acknowledges this, though he seems to limit the discussion to interprations of congressional actions.

Unfortunately, like it or not there is this little-known case, perhaps some of you have heard of it, called Marbury v. Madison which posits that any act passed by Congress which violates the Constitution is null and void. There were many howls of protests after Marshall rendered his decision, but it has managed to stand the test of time for a mere two hundred years.

Publius goes on to state that the Court's decisions in cases such as Lopez and Morrison were not guided by any real desire to uphold the Constitution, but in fact represented the Court trying to assert its powers. Umm, no. The Court took a look at the insipidly insane arguments of the government and its efforts to say that gun violence affected interstate commerce and said "You've got to be kidding us." (Okay, they really didn't say that, but they came close. I always picture the judge in the Simpsons banging his gavel and bellowing "DENIED!" when I think of Lopez.) In both of the big commerce clause cases of the nineties the Courts stated that there actually had to be some real connection between the act and interstate commerce. Not really hard to do, you know. Oh sure, maybe it would hamper the government's ability to harass farmers who dared eat the bread with the wheat that they grew on their own farms, but at least we can live with the knowledge that Congress was in fact working within our Constitution.

Publius' big beef is that the conservatives in the Court are merely doing in the economic sphere what liberals have done in the social, and both are forms of judidicial activism. This is standing logic on its head. In cases like Roe the Courts made law. They found in the Constitution rights that simply did not exist. In cases such as Lopez, the Court denied Congress' ability to pass a law that flagrantly violated the Constitution. They did not make law; they prevented an unconstitional law from being furthered.

Publius also bemoans the anti-democratic nature of such activism, and how conservatives are being hypocritical on this front. Well let this Jefferson-hating conservative state for the record that I do not care if the Court overturns a democratically enacted law that flagrantly violates the Constitution. Consider me a Marshall conservative. I do, however, very much get duly riled up when the Court overturns a democratically enacted law that is not forbidden by the Constitution, but instead merely offends the progressive sensibilities of the high Court, as they did in Lawrence. That, my friends, is judicial activism. Judicial activism is not the Courts upholding the rule of law.


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This is a question for anybody currently living in Pennsylvania, or who has ever driven in Pennsylvania: Does anybody in the state know how to operate a motor vehicle? Also, to successfully pass the road test, does one merely have to properly turn the key in the ignition and start the car?

On a related note, what kind of narcotics did the people who designed the roads in Pennsylvania use? Crack? Heroin? Clearly they must have consulted with the people who designed the roads in Atlanta.



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In case anyone was wondering:

ornicopytheobibliopsychocrystarroscioaerogenethlio

meteoroaustrohieroanthropoichthyopyrosiderochpnomyo

alectryoophiobotanopegobydrorhabdocrithoaleuroalphi

tohalomolybdoclerobeloaxinocoscinodactyliogeolithop

essopsephocatoptrotephraoneirochiroonychodactyloari

thstichooxogeloscogastrogyrocerobletonooenosapulinaniac

is actually a word. It contains 310 letters and means someone who practices divination or forecasting by means of phenomena, interpretation of acts, or other manifestations related to animate or inanimate objects and appearances such as various animal behaviors, dreams, palmistry, wands, ring suspension and a number of other methods. Don't ask why I decided to post this, but I thought everyone should now share in the addition to my knowledge.

For more information on the 9-year-old child that learned to spell this word on a dare (challange) from his 2nd grade teacher, see this article. Isn't the Internet grand.


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For any U2 fans out there, free downloads of the new album are available at u2.com. Registration is required, but it is minimal and gives one access to all 11 songs. Enjoy, I for one have been.


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I wasn't aware of this until reading Legal Fiction, but apparently the Commonwealth of Virginia has enacted the following statute, which they call the Affirmation of Marriage Act. The Act states that:

"A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."

Putting aside the thorny moral, religious, and policy questions I think there are potentially some serious Constitutional problems with this statute. First and foremost, it appears that there is an Article I, section 10, "obligations of contracts" problem because the statute seems to nullify previously existing contracts, which the Constitution clearly prohibits the state from doing. In other words, this statute might be unconstitutional as applied only to contracts that are already in existence if indeed they are interpreted to be void in Virginia. Future contracts are not implicated by this provision as there is no existing obligation to nullify or impair.

Second, there is potentially an Article IV, "full faith and credit" problem here, as this statute could be interpreted to apply too contracts created under the laws of a sister state and enforced in Virginia. For example, envision that a same-sex couple gets a "do not revive order" (DNR) or a living will giving power of attorney to the partner. Further assume that the contract is properly executed in a state that permits such contractual arrangements, use Vermont as an example. The couple then relocates to Virginia where one of them falls ill and requires hospitalization and emergency treatment. Is the Vermont executed DNR valid? Does the partner have the necessary power of attorney to authorize treatments or even further reject treatments? These are open questions that may arise and do not implicate marriage in any way as the hypothetical didn't say that the couple was married or in a civil union. Now it may be that such contractual arraignments do not qualify as "the public acts, records or judicial proceedings of State" and therefore are not entitled to full faith and credit by the Constitution, however, it is also likely that they do or can be declared to by the sovereign legislature of Vermont. To complicate the matter further, Virginia, like most states, enjoys what is known as a "public policy exception" to its full faith and credit requirement. This entitles Virginia to deny full faith and credit to public acts that the Virginia legislature has deemed "against the public policy of the state." Now the efficacy of these statutes, to my knowledge, has not been sufficiently challenged, but many scholars and professors believe that they are permissible and will withstand judicial review. Long story short, it is far from clear what the effects of this statute with respect to Article IV are.

To continue, there may also be 14th Amendment problems, Publius and his commentators mention the Lochner substantive due process decision and its granting of the substantive right to "freedom of contract" that the federal government nor the state can infringe. I'll get there in a minute, first I think there may be equal protection and/or privileges and immunities problems. Clearly equal protection is in question here because the statute arguably treats contractual arrangements between one group (same-sex couples) differently from another group (heterosexual/married couples) (I should also point out that single people may be impacted here as well its just not clear). Thus, there will likely be a battle over what level of scrutiny applies. I don't think that a court will hold same-sex couples to be a protected class thus eligible for strict scrutiny, so more than likely its rational basis here. However, this may be a statute that cannot even meet the rational basis standard, as there does not appear to be a rational reason to enforce different treatment among parties to a contract simply based on their sexual orientation. I may be wrong here, and if anyone has a rational basis, please don't be shy. So equal protection may be a way around this law. Furthermore, Privileges and Immunities (P&I), while it is true that after the Slaughter House Cases the P&I clause has been mostly dormant, it still rears its head every once in a while. Most common is in the right to travel context, which among other things protects the right of people to receive the same treatment in a new state as the citizens of that state. While I'm not sure this applies here, it may be possible to craft an argument that the statute discriminates against citizens of other states who seek to relocate to Virginia.

Finally, Lochner and "freedom of contract." While I'm not as up on my Ninth Amendment jurisprudence as some in the blogosphere, (see Feddie at Southern Appeal and Prof. Bernstein at Volokh, for examples) I think this is perhaps the least of the constitutional concerns. Although the statute clearly infringes on the ability of same-sex couples to enter into some contracts I'm not sure that modern jurisprudence is willing to take the necessary step and say that the state plays no role in protecting citizens from certain types of contracts. Currently both the state and federal government limit the "freedom to contract" in a lot of ways. I, even as a lawyer, cannot enter into a legally enforceable adhesion contract, nor can I legally contract for certain types of services such as murder, prostitution, enforceable blackmail, gambling contracts and other criminal actions. While these activities may occur frequently, they are not legally enforceable in courts, thus, if say my murder for hire contract is breached, (i.e, by the killer being arrested or missing his target) I have no legal recourse to get my money back or require a second attempt. So is it reasonable to assume that the state may have an interest in preventing certain kinds of possible legal arrangements. I think so, the bigger question is should this type of relationship be prevented, and that brings me back full circle to the moral, religious and policy arguments that I wanted to avoid.

Final thoughts, this is a bad statute, both from a drafting perspective (its too broad) and a constitutional prospective (too many potential ways to attack it). The Virginia legislative body should revisit this or it should be challenged in federal courts as a violation of the Federal Constitution.


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In a story in the Daily Telegraph that otherwise was about the UK Independence Party's criticism of France's commissioner Jacques Barrot, lies this odd little paragraph

The fiasco was chiefly caused by Rocco Buttiglione, Italy's ultra-Catholic nominee for justice and civil liberties, who fell foul of the European Left for calling homosexuality a "sin" and disparaging single mothers.

Ultra-Catholic? so now it seems there are different levels of Catholicism. So anyone who actually adheres to Church doctrine is an ultra-Catholic? As opposed to what, cafeteria Catholic?

Memo to fellow Catholics around the world - we still have a lot of work to do.

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Several sites have noted this story in the New York Times by John Tierney which takes a look at the liberal bias of the universities. Among the higlights

One of the studies, a national survey of more than 1,000 academics, shows that Democratic professors outnumber Republicans by at least seven to one in the humanities and social sciences. That ratio is more than twice as lopsided as it was three decades ago, and it seems quite likely to keep increasing, because the younger faculty members are more consistently Democratic than the ones nearing retirement, said Daniel Klein, an associate professor of economics at Santa Clara University and a co-author of the study.

Tierney also notes the huge disparity in campaign contributions. As someone who works at a place that studies campaign finance issues, I can personally attest to the enormous gap between contributions to Democrats and contributions to Republicans.

Why this gap? Here's the snotty answer given by one Democrat at UC-Berkeley:

One theory for the scarcity of Republican professors is that conservatives are simply not that interested in academic careers. A Democrat on the Berkeley faculty, George P. Lakoff, who teaches linguistics and is the author of "Moral Politics: How Liberals and Conservatives Think," said that liberals choose academic fields that fit their world views. "Unlike conservatives," he said, "they believe in working for the public good and social justice, as well as knowledge and art for their own sake, which are what the humanities and social sciences are about."

That's right, we conservatives think nothing of the public good and are just interested in fattening our wallets.

A better answer follows:

Some non-Democrats prefer to attribute the imbalance to the structure of academia, which allows hiring decisions and research agendas to be determined by small, independent groups of scholars. These fiefs, the critics say, suffer from a problem described in The Federalist Papers: an autonomous "small republic" is prone to be dominated by a cohesive faction that uses majority voting to "outnumber and oppress the rest," in Madison's words.

Whatever the cause, this is a serious problem, both personally and for the public at large. On a personal level it is discouraging because it severely curtails my desire to join the academic job market. I am not one who can keep silent while my colleagues push a liberal agenda, thus I know that it would be difficult to sit on a staff where almost everyone is hostile to my point of view. Think tanks are attractive to me because I know that I will have much more freedom, and at the same time I will get to influence public policy on some level. I do want to teach younger people about the ideas that shape our republic, but that requires fighting my way through a system where the odds are stacked against me.

On a national level, this is a severe problem. We cannot have a university system where 90% of the professors are of the same ideological persuasion, liberal or conservative. Young people need to learn in an environment where all ideas are given credence. Now, I have had several liberal professors who are very fair and do not push any sort of ideological agenda, but there are far too many instances of students being bullied or shot down simply for having an opposing viewpoint, and that should not be tolerated.

There are signs that despite this heavy tilt in one direction, students are resisting indoctrination. There are many more campus conservatives than in days of yore, and they are not sitting idly by. Perhaps this is just the rebellious nature of youth - now it is the left that is being rebelled against.

Nonetheless, it is my hope that universities begin to be balanced out. Perhaps they will go the way of the old media and new universities will be born (like Ave Maria) that will offer an alternative. Until then, the liberal monopoly on campuses continues.

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C-SPAN's Washington Journal this morning was addressing the question of whether or not news-media reporters should remain "embedded" with our troops in Iraq. By embedded I assume they mean protected by the Pentagon and in return subject to such rules and regulations as the Pentagon Office of Public Affairs (or whatever it is actually called) establishes. This topic seemed to be based in large part on a Baltimore Sun article, which states that the Iraqi insurgents that were shot and killed the other day were being transported back to Dover, Delaware for autopsy. According to the article, "[t]he examinations are part of a Naval Criminal Investigative Service inquiry of the videotaped shooting of an apparently wounded and unarmed insurgent by a Marine at a Fallujah mosque last week, according to three Defense Department officials who spoke on the condition of anonymity." For those of you who don't watch or listen to this particular C-SPAN show it can best be described as a call-in talk show similar to talk-radio, except that the hosts/moderators, this morning was C-SPAN's founder Brian Lamb, do not make personal comments or express opinions of any kind.

Ok enough of the background, what I found interesting was not the underlying story about the shooting of the insurgent or the transport of the bodies back to the U.S., but rather some of the comments regarding why reporters should not be embedded with the troops. By my count at least 5 of the callers, who identified them as "Republicans" or "supporters of the President" stated that the reason reporters should not be allowed to be embedded was because the "liberal media" is "anti-war" and doesn't report enough of the "good" things that the soldiers and other military personnel have done and are doing in Iraq. Of course then several of them went on to state that the press is a "free market" and that reporters should "assume the risk" of death or bodily harm if they wish to report the major news of the day. To me these positions are contradictory.

If the media is indeed a free market, and in this case I think it is, it must act in a way that maximizes profits. I claim the media is free market, because what apparently is happening is that embedded reporters file "pool" reports, photos, and in some cases video in which exclusivity is waived and other news agencies are free to reproduce at any time. Thus, what you have is a free market system, where the reporters (sellers) make a certain amount of supply (reports, photos, video) available and the buyers (TV stations, internet sites, newspapers, etc.) purchase the goods they want. Presumably, the supply contains a variety of information for the buyers to choose from, in other words both "positive" and "negative" stories are available and the buyer exercises its discretion as to what to purchase and reproduce locally that will enhance its organizations standing and maximize profits. Now in the media profit is derived primarily from "circulation" (the number of people who read/watch an outlet). Thus, the greater the circulation the more people advertisers can reach, therefore, the higher the price the outlet can charge for the ad space. This is why, for example, ads on this blog would be very cheap (i.e., free), while 30 second ads for the Super Bowl run in the millions of dollars. Sadly, many more people watch the Super Bowl than read the blog (maybe someday...). Anyway, my point is that the buyers will pick the stories that will increase circulation and unfortunately those stories are by and large the headline producing sensationalism pieces about death, destruction and other violent behavior. While the stories about water supply, school construction and other things don't rate as highly. Simply put, death of American soldiers is news in America, while schools in Iraq that educate Iraqi children is not. Thus, it isn't really fair to say that the media is "liberal" or that it is "anti-war" because it makes the sound economic decision and prints the "negative" news. Media is a for-profit, competitive industry, don't fault it for responding to the same free market forces that some people want everything to respond to.


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This is a bit of a followup from my post last night on Pat Buchanan. As I alluded to, Buchanan likes to label all those on the right who don't toe his line "neoconservatives" and also has the tendecy to call them all apostates. As mentioned last night, true neocons do indeed veer from the traditional path of conservatism, but when Buchanan and others so loosely use that term it loses all meaning. I think some clarification is in order.

Some of this rehashes to some extent something I wrote on Southern Appeal about a month ago, and the link to that post can be found here. And now that I have done the cheesiest thing imaginable by linking to myself, let me proceed.

Really what I want to do is clarify the different strands of conservatism, and why Buchanan's brand is itself not really traditional conservatism. Traditional conservatism is said to have its roots in Edmund Burke, and particularly his seminal work Reflections on the Revolution in France. Indeed Burke is a towering figure in the history of conservatism, but no one writer or philosopher can really represent conservatism. As Russell Kirk once wrote, conservatism is the negation of ideology, thus to define it systematically is to unravel what makes it unique. Its basic tenets, as defined by Kirk, are essentially the belief in a transcendent moral order, a rejection of levelling (thus socialism), an acceptance of some form of social hierarchy, and a deep veneration of tradition. There's more to it than this, but these are the essentials. But note here how these are not precise definitions but instead are very general and somewhat vague outlines of the essence of conservatism. It's sort of like Catholic social teaching: there are basic parameters, but no clear black and white rules as such. By the way it is also significant that I should mention Catholicism, as Catholics have played a rather important role in traditional conservatism.

That leads me to Buchanan. Buchanan's brand of conservatism, called "paleoconservatism," rejects alot of what is in fact conservative. Perhaps most important is its rejection of elites and fervor for populist measures, especially referrenda. You will note, for example, that among the right-wingers last year who most embraced the California governor recall were Buchanan and Robert Novak. Such an embrace of Jeffersonian populist democracy stands the paleos apart from the rest of the right. Also of primary importance is their intense isolationism. They are united in opposition to the Iraq war and most military adventures of its sort. Similarly, they reject free trade and are quite protectionist in their economic policy. In fact it becomes difficult to differentiate between the paleos and Naderite progressives on most things with the important exception of cultural and social issues, and it is here where the paleos retain their ties with traditional conservatism.

Neocons, are quite the opposite. They readily embrace an aggressive foreign policy which seeks to transport American values abroad. They are the nation builders of our little clique. They also certainly embrace free trade and free market capitalism, but are also much more comfortable with government than other conservatives.

What perhaps sets neocons apart from traditional conservatives is a certain sense of secular messianism. Neocons seem to believe that greater human happiness can be achieved through the state. Whereas traditionalists have an Augustinian streak that accepts the failings of this world, neocons have a striking mission to alleviate himan misery all over the globe. They have a much more optimistic appraisal of humanity and in humanity's potential for perfectibility.

This a very basic outline, and I have not even really begun to scratch the surface. Moreover, there are many conservatives who fall in between or even outside these groups. Evengelical Christians really don't fit neatly into any three of these categories; in fact they have tendencies of all three types. I would also submit that there is a brand of conservatism exemplified by the likes of Michael Savage (and perhaps more mainstream voices) that I like to call crankycons. These are your libertarians with morals that want to close down the borders and essentially strip the federal government of almost all powers and leave everything to the states. They are basically anti-federalists reincarnated.

How does such a diverse coalition stay united? Two things, I think. Essentially all brands are united socially, in particular when it comes to issues such as abortion. I also think that most conservatives are originalists when it comes to constitutional interpretation, and share a deep disdain for judicial activism. But other than that it a tenuous coalition, and one that can fragment very easily.

I think Buchanan's group has been written out already. Well, at least Buchanan himself, who most conservatives now look upon with disdain. It is sad, really, as he is a very astute and creative writer; it's just too bad he is a complete maniac roughly 50 percent of the time. Most importantly though, it is becoming increasingly difficult to separate paleocon rhetoric from that of Michael Moore. It might be a tad extreme to say that they are anti-American, but they refuse to accept that we are at war with a dangerous set of religious fundamentalists. They would rather blame Israel and her "puppets" in the American government for all that is wrong currently in the world. This is not conservatism; it's reactionary.

Moreover it is an ideology blind to the ways of the world. Burke wrote that society must change in order to preserve itself, and indeed conservatives accept change, albeit slow change. Paleos, on the other hand, wish to revert backwards to some glorified past which never really existed in the first place. Moreover, they act as though the rest of the world does not exist. Their extreme isolationist rhetoric harkens to American nationalism, but it ignores the fact that the world has changed and we cannot ignore our responsibilities as the preeminent global superpower. Their idealist yearning for splendid isolationism contradicts the realism that is the hallmark of conservative foreign policy.

Well, enough of conservatism 101. What I hope I have shown is that Buchanan's brand of conservatism is no more authentic than any other, and in fact may not even be truly conservative at all. In its insistence on a ideoligical purity test, paleoconservatism becomes something of an ideology. And returning to Kirk's comment about conservatism being the negation of ideology, paleoconservatism is thus neither paleo nor conservative. Discuss.

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As both a lawyer, wannabe scholar, and former California resident, I find the emerging debate over whether to amend the constitution to allow foreign born citizens such as Gov.'s Arnold Schwarzenegger and Jeanne Granholm (who is, to my understanding, Canadian born) very interesting.

Article 2, sec. 1, cl. 5 states that "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States." This language clearly prohibits foreign born naturalized citizens from being eligible for the Office of President of the United States.

What to do? Well the amendment process appears to be the only recourse, and lo and behold, such an amendment has already been offered by Sen. Orin Hatch (R-UT). Personally, I'm not sure yet where I stand on the issue, however, I was reading the website Amend for Arnold (because it was linked to in my edition of The Hotline) and came across this interesting line. According to the site, "some Constitutional scholars believe this was actually changed by the 14th Amendment. That's the one that made former slaves into citizens of the United States --- whether or not they were born here. " I don't know what research they are referring to, or who the "constitutional scholars" are, but I have never seen this interpretation before and am not sure I agree with it. I was hoping to spur some discussion both on the constitutional interpretation, and the underlying issue of whether an amendment is a good policy idea.


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Scrappleface's Scott Ott has once again got the latest scoop from the White House.

Secretary of State nominee Condoleezza Rice today urged a "wait and see approach" in the wake of news that Iran may be secretly continuing its uranium enrichment program and developing missiles to carry nuclear warheads.

"They're probably not going to use these nuclear weapons that we're not absolutely sure they're developing anyway," said Miss Rice, who is still the National Security Advisor and the president's exercise buddy. "If they do use the nuclear weapons there's a fair chance that it won't be against us, our allies or our troops overseas. It's a big world and there are lots of other places they could bomb."

Miss Rice reminded reporters that America's number one foreign policy consideration at all times is multilateral cooperation.

"Let's wait and see what our allies in thoroughly-modern Europe do," she said. "We need not leap to conclusions about Iran's intentions simply because it's an Islamic fundamentalist totalitarian state renowned for having held 52 Americans hostage for 444 days. Even if they build a nuclear missile and launch it at us or Israel, it's conceivable that it would fail to detonate and would fall harmlessly into the sea."

Just this week France, Germany and Britain received a solemn promise from Iran's chief nuclear negotiator, Hassan Rowhani, that his nation would freeze uranium enrichment in exchange for benefits yet to be negotiated.

"When I'm secretary of state," Miss Rice added, "we'll continue to build on that relationship of trust based on our shared values.

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More good news out of Iraq. From the Washington Post:

U.S. soldiers discovered a house in southern Fallujah on Thursday believed to be a main headquarters for Jordanian-born militant Abu Musab Zarqawi, the leader of an insurgent network responsible for bombings, kidnappings and beheadings across Iraq.

It is clear at this point that Zarqawi has replaced bin Laden as the man we really need to get. He has been one slippery devil, but his time is coming.

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Jolly old paleo"conservative" Pat Buchanan has come to the defense of Yassir Arafat. You see, Buchanan doesn't much care for all the harsh rhetoric about the now deceased Arafat. I'll just re-post the whole thing here, and throw my own comments in. (Hat to tip to Joel Leggett at Soutern Appeal for the piece.
Before I begin, please note the name of the website where this piece is posted:
antiwar.com

"In a better world, the PLO chief would have met his end on a gallows, hanged for mass murder much as the Nazi chiefs were hanged at Nuremberg. ... In a better world, George Bush would not have said, on hearing the first reports that Arafat had died, 'God bless his soul.'

"God bless his soul? What a grotesque idea! ... God, I am quite sure, will damn him for eternity."

So writes Jeff Jacoby of the Boston Globe. And we are surely fortunate to have columnists who know the mind of God.

What a deliciously ironic comment coming from Pat Buchanan. At any rate, what is so wrong with hoping that God has indeed committed a mass murderer to the eternal pits of hell?

In defense of President Bush, if that was his first reaction to Arafat's death, it bespeaks a Christian heart. As a boy in World War II, I was taught by Catholic nuns that while permissible to pray for the death of Hitler or Tojo, it was impermissible to pray for their damnation. That was hatred, and hatred is a sin.

Again, I will again note the irony of this last sentence considering the source.

That Arafat's PLO harbored terrorists and his Fatah committed acts of terror is undeniable. And some of those acts were done with Arafat's approval. But if, as Jacoby writes, Arafat "inculcated the vilest culture of Jew-hatred since the Third Reich," why did Ehud Barak offer him 95 percent of the West Bank and a capital in Jerusalem? Why did "Bibi" Netanyahu give him Hebron?

Why did Shimon Peres and Yitzhak Rabin share a Nobel Prize with him? Why did Bill Clinton invite him to the White House more times than any other leader? Were they all enablers of terrorism?

No. All realized something that neoconservatives reject. For better or worse, as the explosion of grief at his death demonstrated, Arafat came to personify and symbolize the just cause of Palestinian nationhood. And if one desires peace for Israel, that cause must be accommodated.

Everybody, it's time to play a game (cue Motorhead). It's called "defiance of logic," and our contestant is Pat Buchanan. Evidently Arafat's sham nobel prize signifies that he was not the ghoulish terrorist the rest of the sane world acknowledges him to be. Come on Pat, you can do better than that. And yes, Sharon indeed offered Arafat a large chunk of Israeli real estate, but who else were the Israelis supposed to deal with? Like it or not, it was Arafat who represented the Palestinians, and he was unfortunately the individual with whom the Israelis had to negotiate. And, by the way, does not Arafat's rejection of even this sweet a deal demonstrate all the more what a bloodthirsty tyrant we were dealing with. Arafat's real desire was the complete elimination of Israel, a goal that perhaps Mr. Buchanan shares?

With Arafat dead, the excuse Sharon had for not negotiating, as he planted new settlements on Palestinian land, is gone. The excuse Bush had for suspending America's role as honest broker is gone.

This is one of those paragrpahs that make little sense . . . kind of like the rest of the piece. When did America suspend its "role as honest broker?" Wasn't it the Bush administration that was the first to call for the creation of a Palestinian state, or is this one of those inconvenient facts that gets in the way of Buchanan's theory of a neoconservative/Zionist cabal (though suddenly those two terms have become redundant, at least according to the paleos).

Already, however, Sharon's propagandists are laying down new markers before talks can begin. Palestinian elections must be held, and new leaders acceptable to Sharon produced. All acts of terror must cease indefinitely. All militias must be disarmed.

As Mr. Leggett said on Southern Appeal, so what? Are these such unreasonable demands.

As the Palestinians attempt to surmount each hurdle, new ones will be raised, for the unacknowledged elephant in the room is that Sharon does not want negotiations. He got all he wants last April. In a formal letter, Bush agreed that the Palestinians have no right of return to Israel, that the Sharon Wall can be extended, that the big Israeli settlements we used to call illegal belong to Israel forever, that Jerusalem need not be shared with the Palestinians.

"Sharon Got It All!" was the banner headline in Ha'aretz.

And this is where Mr. Buchanan takes another turn from reality. I suppose it was all my imagination as Israel pulled out of the sentlements not even a couple of months ago? Oh, surely you remember all the fuss that got kicked up when Netanyahu threatened to take his marbles and leave. But of course, it must have all been a coy ploy. Oh those wascally Jooooooos, Pat. They fool you every time. Nah, Buchanan would of course not suggest such a wild conspiracy.

Sharon's negotiator, Dov Weinglass, told the paper that the scheme, from the beginning, was that Sharon would pull his 8,000 settlers out of Gaza, an enclave Israel does not want. Then, the peace process would be "embalmed." Bush was had.

Whoops. Guess I misunderestimated Pat. Those JOOOOOOOOOOS!

The ball is now in Bush's court, and he has been maneuvered into a hellish position by his own neoconservatives, who cut the sweetheart contract with Sharon. Should the Palestinians choose leaders willing to renounce terror and negotiate a peace along the lines of the Camp David and Taba deals brokered by Clinton, and the Saudi Plan hailed by Bush himself, the president will have to insist that Sharon negotiate.

Couldn't go one op-ed without mentioning those blasted neoconservatives, purveyors of all evil in the world. In actuality, this is one area where Pat and I are somewhat in accord. I do think that neoconservatism is a mildly dangerous philosophy that is ultimately not really conservative in orientation - hey, kind of like paleconservatism. Unfortunately Buchanan has this tendency to apply this term to just about everyone who does not hold his particularly warped worldview.

But then he will learn that Sharon thinks he already has Bush's backing for retention of all major settlements and against any right of return or sharing of Jerusalem.

Should Bush demand that Sharon negotiate, the cry of "Munich!" will be raised and echoed by the Israeli lobby, Congress, evangelical Christians, and neocons. At which point, we will learn whether we have a tough or a timorous Texan in the White House.

We need a tough Texan. For not only are U.S. interests entwined with justice for the Palestinians, so, too, are our values.

WHAT? Our values are entwined with justice for the Palestinians? How about justice for the Israelis who live in fear every day of being blown up by a suicide bomber? How about justice for the thousands of Jews and others who died at the hands of Arafat and his minions? Gimme a break already.

While a Palestinian state with its capital in Jerusalem, midwifed by America, would not mean an end to all terror, it would end an injustice. It would drain off resentment of America in a part of the world where we were once admired. It would erase a glaring anomaly that has been morally crippling to America among our remaining friends in the world. And it would accord with our national interests – and our values.

Wow, one can almost hear the violin in the background. If only we could broker a peace. If only we could sit the Israelis and Palestinians down at the table, have them negotiate. Maybe have Israel agree to give Palestine just about everything they desire, and . . .oh, wait a minute. We already did that.

For in the Middle East we do not practice the values we preach to the world. Were Russians doing to Latvians or Germans to Czechs what Israelis are doing to Palestinians, we would never be countenancing such repression and thievery with $3 billion in aid every year. Time to end the double standard that has erased so much of the goodwill won by America in the Cold War.

Is George Bush up to it? We shall see.

Thank you mein fuhrer, err, Pat, for that rousing closing. Quick question: Can you name the Middle Eastern country where Arabic people have the most rights and freedoms? Hint: It's the country Pat wants wiped from the globe. Of course Israel is far from perfect, but one gets the sense from reading this that Mr. Buchanan is gearing up for his own private fatwah.

But of course Pat Buchanan isn't anti-semetic. He's just an objective critic of Israel. One who hates the country.

By the way, the next time Pat Buchanan calls someone else a conservative apostate, there better be a mirror in front of his face.

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According to CongressDaily, Senate Majority Leader Frist (R-Tenn) is prepared to invoke the "nuclear option" during the next contested judicial nominee. At best I can figure what this entails is a request by the Leader to the President of the Senate (VP Cheney) for a ruling on the propriety of the filibuster as applied to judicial nominees. Cheney, as expected, will rule that the 60 vote rule is not appropriate for judicial nominees. Democrats will, of course, object and the ruling will be put to a vote, where a simple majority (51) is all that will be required to change the longstanding Senate rule.

Now let me begin by stating my own personal opinion on the use of the filibuster. As many of you have heard me say, I do not support the Democrats use of filibusters on judicial nominees. While I don't agree with many of the people or philosophies put forth, I didn't think and don't think that this was a wise political maneuver. That being said, however, let me be perfectly clear. My position is based on a feeling of comity, or better yet a belief in "what goes around comes around," at lets face it the symbol of the GOP is the elephant, an animal legendary for its long memory. In no way did my opinion on this issue stem from any legal or constitutional obligation on the part of the Senate to confirm Presidential Nominees. I do not think that the filibuster was illegal or unconstitutional, just bad politics.

Let's take a look at just the constitutional claim. Article II, sec. 2, cl. 2 of the Constitution states in part that "[The President] shall have power, [to] nominate, and by and with the advice and consent of the Senate, ... Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: ...." Nothing in this clause "requires" that the Senate consent to a nominee, and moreover, nothing in this language suggests that the "advice and consent" clause is to represent a rubber stamp by the Senate on everyone that the President sends forth. Now I admit that the filibuster is not contained in the Constitution, but the authority of each house to determine its own rules is specifically laid out at Article I, sec. 5, cl.2, which states "[e]ach House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." The Senate has agreed to a rule that under certain conditions 60 votes is required to end debate, and bring an issue to the floor for a vote. The rule makes no distinction that I am aware of between legislation and nominations. Therefore, either is eligible to be filibustered. Furthermore, federal courts, including the Supreme Court, have consistently ruled that the internal rules of the Senate and House are non-justiciable political questions (See, e.g., Baker v. Carr) Thus, taking all of this into consideration, I fail to see how anyone can argue that the filibuster is unconstitutional or illegal.

In short, while GOP members may feel justified in invoking the "nuclear option" in my opinion two wrongs don't make a right, so they should refrain from taking action that will result not in appointments to the federal bench, but rather in a complete stoppage of work in the Senate and a stalemate at the federal legislative level which will ultimately do far more harm than good. I don't know what the ultimate solution to this problem is, but I know the "nuclear option" isn't it.


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If you thought the smoking bans accross various US cities were severe, Britain is starting to make us look like a Nation of smoking fiends. Soon the rule in the great UK will be that you can only smoke in your own rooms, with the lights out, underneath the covers of your bedsheets (hat tip to Dennis Leary).

The Daily Telegraph has rightly mocked this lastest excursion of the nanny state of Tony Blair. Blair's Labour Party is under the distinct impression that grownups cannot function without some meausre of government aid. As they write:

What irks Mr Blair most of all is the public's infuriating tendency to do what the public wants. He seems to believe that it is the job of government to stop that. Hence the draconian ban he proposes on smoking in public places - as impertinent and patronising an assault on freedom as any proposed by a British government since the Second World War.

The Telegraph also has this hilarious piece by Oliver Pritchett which traces the rise of the Nanny State of Sensibilia, an island in the Pacific founded by British nannies who "formed a community which was to become the world's first nursocracy. The economy is based on the manufacture and export of extremely stiff hairbrushes."

In all seriousness, Blair's governing philosophy is not all that far removed from that of our beloved President. Bush once said something to the effect that when a person is hurting, it is government's responsibility to help them and pick them up. Oh really? I scraped my knee the other night playing baseball, and I fully expect a careworker from HHS to come and take care of my booboo.

I jest of course, but sadly there are more than a few people who hold such an attitude. They fully expect the government to shield them from the perils of the real world, and leaders such as Bush and Blair are all to ready to oblige. Their underlying dread seems to be that there might be someone, somewhere who is unhappy or insecure, and they must do everything in their power to protect that person.

Well excuse me oh exalted ones but we grownups can take care of ourselves, thank you very much. Human beings have this uncanny ability to figure out for themselves how to survive. Unfortunately the government presses to neuter this sense of self-survival, to the point where we have a society that howls in protest when even a suggestion is made to remove one of the safety nets.

Government exists to protect us. It is a necessary entity which is supposed to work to keep us all alive. It does not exist to sit in my living room to ensure that I refrain from smoking, or drinking beer, or eat fried chicken. Believe me, I am no libertarian - government can provide a certain minimal safety net, and it does have some regulatory responsibilities. But we are not a perfect race, and heaven is not to appear in this earthly realm. If a person eats himself to death, too bad; more eat for the other meat eaters. If a person wastes their paycheck on crack, horses, or overly expensive items that they really can't afford, then that is their personal decision, and the rest of society should not be made to pick up their tab.

At least President Bush seems to have some understanding of personal responsibility. I do have hope that his desire to create an ownership society will slowly melt away the excesses of our nanny state. Unfortunately for our British cousins, it appears Tony Blair is just getting warmed up.

Secular messianism. Get used to it, Great Britain. Hopefully the United States can avoid this tendency shared by both neoconservatives and progressives.


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Congress is set to raise the debt limit by $800 billion. This is obviously a necessary step to take to allow the Treasury to borrow in order to finance governmental activities. I also acknowledge that our current debt/deficit situation is not all to be blamed on President Bush and the GOP Congress, as there are factors beyond their respective control that contributed to the mess.

That said, it time to take some scissors and start cutting away. It is time for the Republicans to start acting like Republicans and cut waste, scale back operations, and reform entitlements so as to restore some semblance of fiscal sanity.

George Bush has a mandate because he won the election. The size of victory is utterly meaningless- being elected is the only mandate that counts. Republicans have a sizeable enough majority in both Houses to work for real change. It would be a colassal waste to be given this opportunity only to squander it with infighting and half-hearted attempts at reform.

It is odd that the conservative party should be the party of change and reform, but even Burke said that progress is the surest way to conserve a society. If the GOP makes no real effort to reform the social security system, reform the tax code, and scale back the size of government, then they will deserve to lose in 2008 or even before. Unfortunately for this country the Democratic party is in no shape to take control. If the GOP does not come to its senses, it might be time to turn to a third party. I would prefer not to go down that road, but I will also not support a party that does not do what is right for the Nation. I am confident that Bush will fight for what he believes is right, but what he thinks is right might not be the same as what I believe is right. I will continue that point in a follow-up post shortly.


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This story about Bush's nominee to the U.S. Court of Appeals for the District of Columbia, Thomas Griffith, cracks me up, mostly because it is so absurd, but also because it shows how messed up the vetting process can be sometimes.

Basically the facts are as follows: while this guy was an attorney for a big law firm here in the District he allowed, whether by oversight or neglect I don't know, his law license to be suspended by the DC bar for failure to pay his annual dues. Not the crime of the century, but as we all know, a rule is a rule and while he had a suspended license he wasn't supposed to be dispensing legal advice. But wait there is more. Apparently, when Griffith accepted a job as general counsel for BYU in Provo, Utah, he applied for a Utah law license and stated that his license had never been suspended.

Huh? Is this the "it depends on what the meaning of the word suspended is?" defense? So not only was this guy arguably practicing law in DC for three years without a license, when he moved to Utah he continued to give legal advice without a license for an even longer period of time and then, well I don't know how else to put it, he lied about the status of his DC law license on his Utah application. I think that the quote from the Utah Bar is the best, however, as it states, "'It is unfortunate that you anticipated relying on the rule without having an understanding of the restrictions it imposed.'" Should this guy be confirmed by the Senate to a lifetime appointment to arguably the second most powerful court in the land? I think it is obvious what my opinion on that question is.


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