Sunday, February 27, 2005

Missile Test Science Deserves Its Chance

Recently, the U.S. Department of Defense (Defense) conducted one of its anti-missile tests as part of the federal government's broader, multi-faceted Strategic Defense Initiative (SDI). The broader goal of the program, as the name implies, is to develop a series of technologies that are capable of destroying inbound ballistic missiles. This particular test was to see if a ground-based “interceptor” missile could be used to intercept and destroy a missile carrying a warhead.

Well, that test was a flop, and damned if the mainstream media (MSM) took note, en masse, of how much of a flop it was. It seemed as if every major news outlet ran a story on the failed missile test, and also followed their "straight news" reporting with additional editorializing about how we should stop wasting taxpayer dollars on things like national defense and save them for more important endeavors like, oh, I don't know, studies of cow flatulence, or naming yet another building in honor of Senator Robert C. Byrd in the State of West Virginia.

You may not have heard, however, about Thursday’s successful test. Defense scored big when one of its interceptor missiles destroyed another dummy warhead-capped missile over the Pacific Ocean. The successful test was one of a growing number of such successes over both land and sea, and served as a demonstration that what was once labeled physically impossible is now happening with regularity.

Barely a peep has been heard from the MSM about the success. It fell to journalistic powerhouses such as India's The Economic Times, China's Xinhua, and the United Kingdom's The Register to even mention that this SDI test had taken place, much less that it was a success.

I bring this story to your attention to point out what is not exactly a mind-blowing revelation: science takes time.

(I will not belabor the whole MSM bias angle, although I could probably write an entire series of posts on that topic alone. If you doubt that there has been an epidemic of underreporting with respect to this particular SDI test and the reporting of other successful tests, I urge you to do your own searching at at your leisure. Just look at the number of stories that have been written about successful tests and cross-check it with either the number of stories written about failed missile tests or the number of stories written about your average, everyday story. The gap is striking.)

I am amused by liberals' incessant criticism of President George W. Bush as someone who is "intellectually incurious." (This really means that he is too decisive for their tastes, and should adopt the ever-evaluative tactics of the all-wise and all-knowing John Kerry, who is probably at this very moment admiring the wallpaper of his Senate office – you know, the wallpaper that he picked out before he didn't pick it out. For the moment, however, let us assume this criticism is an honest one that should be addressed on the merits.) You might think this would be the sort of criticism you would hear from individuals who have a respect for the growth, enhancement, and application of science. You would be mistaken.

Liberal science comes with ideological strings attached. In their world, science is only "good" if it comports with their worldview. All other science is therefore "bad" and unworthy of anyone's attention because it does not comport with said worldview. (See brief media bias discussion, supra.)

If said science involves confiscating private property for the purpose of studying nature, then yes, liberals are in favor of science. If said science involves raising taxes to pay for global warming research and preventive measures, that is fine, too. If said science involves growing fetuses solely for medical research, to be dissected and studied like frogs in high school biology class, all the better. There is no price too high to pay when in pursuit of such knowledge, and it goes without saying that trial and error here is part and parcel of that pursuit.

If science is applied to strengthen national defense, however . . . well, their attitude changes drastically. Take missile defense. In addition to having to listen to liberals deride missile defense as both too expensive and wholly unnecessary (both of which are very debatable claims), critics of SDI also waste no time pointing out that it is an unproven venture, and that because it is unproven, it should no longer be studied or funded.

Unproven? What?

Try to imagine Ted Kennedy leaning over the shoulder of Thomas Edison while the latter is inventing the light bulb, asking him what his timetable for completion is. Or Tom Daschle (I wonder what he is doing these days?), standing behind the Wright brothers on that windy beach at Kitty Hawk, North Carolina, asking them when they expect their flying machine to be perfected. Or Nancy Pelosi, harping on Albert Einstein because it was taking him decades to come up with his revolutionary theory of relativity.

Science rarely, if ever, conforms to the instant gratification crowd because science is usually a long and arduous journey. Granted, people sometimes get lucky in their work, and major advances can be made because the right person was in the right place at the right time. But more often than not, it takes a lot of trial and error – a lot – before a breakthrough is made. Medical research and space travel are two fields that come to mind, not so much because the concepts are so complex, but because it took humanity years to obtain the tools it needed to make dreams become reality.


So it is, and will continue to be, with missile defense. Creating a missile defense shield requires an immense amount of scientific know-how and hard work. There will be trial and error. There will be setbacks. And the successes will be few at first. But over time, the successes will catch up to and outstrip the setbacks. To say that something should no longer be pursued because it has not been instantly successful is to misunderstand the very underpinnings of science and experimentation.

We can have a debate about the resources for, and necessity of, a missile defense shield, and it would no doubt be an energetic one (although I personally think it is worth whatever the cost and is absolutely necessary in this ever-dangerous world of ours), but it strikes me as intellectually dishonest to expect the science to just appear, overnight. Rarely has the world around us been so accommodating.

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Friday, February 25, 2005

question for the hawks...

I'll try again...defend this, justify this...and "sorry, we f***Ed up doesn't cut it. Can you spell hypocrisy (or should I say spreading democracy and freedom)?

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Thursday, February 24, 2005

More words of advice from Specter

Arlen Specter has some (in his mind, at least) sage advice for the President. From the Washington Post:
President Bush would be wise to "pick up the phone" and consult with Democrats before choosing a new Supreme Court justice. "The advice clause in the Constitution has been largely ignored." If there is a vacancy on the high court, "the far right is going to come hard at a nominee if it is not a nominee of their choosing. But I think there's a much broader base in America than the far right." Changing the Senate rules to prohibit filibusters of judicial nominees -- the "nuclear option" -- could have deleterious short-term effects and run the long-term risk of eroding the rights of the minority. "If we go to the nuclear option . . . the Senate will be in turmoil and the Judiciary Committee will be hell."
The article goes on to note that
If you thought that his brush with losing the committee chairmanship had chastened the legendarily contrarian Specter, if you thought his recent diagnosis of Hodgkin's disease might have tempered his approach -- well, that wasn't the Specter on display in a visit with The Post editorial board yesterday. Instead, the discussion featured Specter Unbound: the Specter who voted against Robert H. Bork rather than the one who rallied to the defense of Clarence Thomas.
You know, I could swear someone here warned about this happening. Anyway, the Post is right, Specter has not given any indication of being remotely chastened by either his narrow primary victory or the failed Judiciary Committee coup.

Of course Specter's comments, while not endearing him to conservatives, did inspire the Post to gush about this oh-so-brave soul.
This may be the Specter conservatives feared -- but it also seems like the chairman the committee (and the country) needs.
Indeed. Surely the country needs a duplicitous, self-serving RINO chairing the committee which plays a vital role in shaping the judiciary, an individual with absolutely no loyalty to his party or president and who is seemingly committed to sinking true-blue conservatives before they breach the sanctity of our Courts, and who is well-trained in the John McCain school of kissing up to the press.

Hat tip to Kathryn Lopez.

Also posted at Confirm Them.

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Right to Die?

At the risk of opening up a huge can of proverbial worms, I am going to attempt to tackle the two thorny "right to die" (admittedly, I don’t like this label that has been given to this issue as it, in my opinion, is nothing more than a rhetorical phrase that is wholly devoid of signifigant meaning, but since it has become the commonly accepted label I will use it albeit as sparingly as possible) issues that have received notable news attention in the last several days. I fully understand that this issue is charged with legal, emotional, religious, philosophical and other points of view, but I will do my best to stick to my so-called area of knowledge, i.e., the law.

First, the Terri Schiavo case that has re-emerged on the national scene. Speaking strictly legally, this case is pretty simple and really doesn’t raise a lot of unique issues. The relevant legal facts, in my opinion are these, Mrs. Schiavo is married and was involved in a major accident some 10 years ago, the result of which has placed her in a medical condition that requires her to be fed through a feeding tube. Mrs. Schiavo left no "living will" or other legal document that dictates what her wishes with respect to "life support"or other medical treatment is and currently is unable to effectively communicate her present desires to anyone. As I understand things, the law here is quite clear, by virture of her marriage, Mr. Schiavo is the "next of kin" and as such is authorized to make any and all decision on behalf of his wife. The fact that the parents and Mr. Schiavo disagree about what that decision is, while unfortunate and heartbreaking, is nonetheless not really relevant, since the law gives Mr. Schiavo and not her parents the legal authority to make the decision.

Some advocates of the parents point-of-view have attempted to argue that Mr. Schiavo could (and should given his new "relationship" and subsequent children) get divorced and turn Mrs. Schiavo back over to her parents who would of course continue the medical treatment. However, unfortunately, I don’t think that this is an option pursuant to Florida law. In most states that have adopted "no-fault" divorce statutes, divorce, like marriage is a consensual action. In other words, both parties have to agree to get a divorce. While usually consent isn’t difficult to obtain, it is nevertheless required. Mrs. Schiavo is, due to her condition, unable to consent to the divorce and, to my knowledge, left no legal document giving legal authorization (usually in the form of a power of attorney) to anyone that could consent to the divorce. Now, even if Florida has preserved a "fault" divorce system, and Mr. Schiavo by virtue of his actions qualified, on say, adultery grounds, it still may not be possible to obtain a divorce, because Mrs. Schiavo is the only person who would have the necessary legal standing to initiate the court proceeding required to obtain the divorce. Moreover, Mr. Schiavo also appears incapable of first obtaining a declaration of death for the purposes of obtaining a divorce, because as we are all aware, Mrs. Schiavo is not dead, but rather is severely incapacitated.

Hence, we appear to be back to the original proposition, which is that given the marriage, Mr. Schiavo, like his decision or not, has the legal right, absent any legal instrument to the contrary, to make medical decisions for his wife. No court decision that has come to any other conclusion has been upheld and intrusion by the other branches of government has been overturned as a violation of separation of powers. As I have said, a sad, tragic story, but ultimately not a difficult legal issue.

The second situation, however, involving the State of Oregon’s Death with Dignity Act, presents many different issues and is a much more difficult legal case. This case presents a potential conflict between the validly enacted Oregon state statute and the federal Controlled Substances Act (CSA), which regulates the narcotics used by doctors in terminal cases. Of course the actual question that the Supreme Court will decide next term arguably ducks the "federalism" issues presented by the case and renders it essentially a statutory construction case, the policy/philosophcal questions about the role of the government, state or federal are still interesting and should be worthy of discussion.

Because I have rambled on long enough, I’ll simply say this, while it is clear from the Supreme Court's decision in Washington v. Gluksburg, that the Constitution affords no "right to die" that decision in no way precludes the State of Oregon from doing exactly what it did and enacting a statute regulating the area. Again, agree or disagree with the state’s decision, (which by the way was made in the truest of democratic fashions, via public referendum, meaning that this measue was not enacted by elected representivies in the legislature, but rather by the people of Oregon directly) their authority to make it is, in my opinion, unchallengeable. Whether the CSA has any bearing on the state’s ability to effectively execute the statute is another question, but since my theme and focus here has been on legal authority, it appears fairly clear that Mr. Schiavo and Oregon have at least that much in common, i.e., they both have the legal authority to make the decisions they have made with respect to the "right to die," regardless of whether anyone agrees or disagrees with their choices.

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Wednesday, February 23, 2005

Dems for Arnold

Interesting article:,1,5279575.story?coll=chi-newsopinioncommentary-hed

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Tuesday, February 22, 2005

Let this be our mantra

James Taranto writes that Hillary Clinton is the person at this moment most likely to be our next President, if for no other reason than the odds are higher for her than any other individual. He makes some fine observations, then closes with this:
Republican loathing could well help her in the general election too. As we argued throughout last year's campaign, partisan loathing for President Bush was a hindrance to Democrats. They mistook their emotions for facts, which made them overconfident. They thought running a totally negative campaign would be sufficient; it didn't occur to them that doing so reflected badly on them, not on Bush. If Hillary Clinton is the nominee in 2008, Republicans run the risk of repeating these mistakes.
His comments hit me like an epiphany from on high. He is exactly right, and conservatives would do well to repeat this for the next three-and-a-half years: Do not let our hatred of Mme. Hillary get in the way. She is a loathsome figure, but just saying she is a loathsome figure is not going to defeat her. I firmly believe that the vitriol spewed at President Bush for over four years actually did more in the long-run to help him because it turned off a good number of moderates. Many of us like to deride the public as stupid, but they are not as foolish as we like to think, and many want to hear substance over simple-minded venemous comments directed at the opposition. Thus those of us on the right would do well to keep that in mind and refrain from overstepping the bounds of decent rhetoric. There is enough there substantively to defeat Hillary, we need not delve too deeply into lampoonish caricatures that only make her slightly more sympathetic to the public.

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Monday, February 21, 2005


There is no better way to celebrate Washington's birthday than by visiting his breathtaking estate in Mount Vernon. It is easy to understand why the greatest of our Founding Fathers simply wished to retire to his farm after the war rather than attend to politics, but unfortunately for our Nation's Cincinnatus, his country called him to guide it in its transition into a constitutional republic. And so he answered the call.

We honor him because without him we would not exist as a Nation. Imagine a man whose brilliance as a general guides a ragtag group of rebels to victory against arguably the greatest military force on the planet, garnering independence for a Nation which is to prove to the world that a people can be trusted with self-governance.

Now picture a second man, charged with the task of running a republic in its formative years. Every action that the man undertakes will be a precedent that will set the tone of what the Nation is to be. He had to avoid all the trappings of monarchy while also working to ensure that the office of Chief Magistrate has enough dignity and respect to ensure its own strength, and in doing so guarantee the vitaility of the republic. And on top of that, he had to manage an administration stacked with enormously talented and yet vain and headstrong individuals, all the while overseeing the development of the new Nation, quashing the occasional uprising, and keeping a jealous eye upon the European Nations.

Of course we know that George Washington is both men, and indeed the father of this great Nation has rightly earned the respect he so richly deserves. The towering monument in the middle of the Nation's capital is a fitting tribute. And today we honor the man that allowed the republic to come into being with his own special day. That's right, today we honor George Washington with
. . .President's Day?

Huh? Come again? President's day? The man just about singlehandedly is responsible for the birth of the greatest Nation in the history of the world and we honor with some generic holiday that essentially incorparates such titans as James Buchanan, Andrew Johnson, and Jimmy Carter. Excuse me, but WHAT THE FUCK?

Have we become so historically distorted as a country that we cannot honor the greatest American, the father of this Nation, with a holiday all his own? Is it too much to ask that we can the silly euphamisms and memorialize a giant among men? Martin Luther King - a truly wonderful human being, to be sure, and certainly worthy of much praise and adoration for all of his accomplishements, but certainly someone not in the arena of George Washington - gets his own holiday, and yet we disrespect the man who gave us our freedom by honoring him along with all the other clods who occupied his office?

And I haven't even gotten to Lincoln. Oh yeah, he may have kept the Nation in tact and guided it through its most tumultuous time ever, and sure he may have liberated a few million slaves, and yeah his steady persistence and ability to carefully and brilliantly deal with the egos within his administration and the military provided steady leadership in trying times, but other than that what did he do to earn his own day of recognition?

It's easy to get caught up in the pettiness of what is really not that big a deal. And I'm going to do what's easy. It is a national disgrace that these two men do not merit special holidays all their own. And don't give me some bullshit about how "President's day" really is a commemoration of Washington and Lincoln, because then the holiday should be called "Washington and Lincoln Day." Oh no, we would not want to draw special attention in these politically correct days to truly meritorious individuals, because then we might offend the sacred memory of Benjamin Harrison, and Lord knows we wouldn't to leave him out the fun after all he accomplished. After all, who are we to say which President was truly great and who was a dud. Surely Jimmy Carter accomplished as much in office as Lincoln and Washington, after all he was the guy who almost brought us world peace. If by almost you mean destroying the country and therefore ensuring we didn't have to worry about world peace because there wouldn't be a world requiring peace.

Maybe it would be inappropriate to draw comparisons between this and the wonders of outcome-based education and other wonders of our blessed educational establishment. "Johnny is just as smart as Billy, even if Billy can split an atom and Johnny thinks 2=2=y5u24wy5. Johnny is a special kid, and he's trying, and it's the effort that counts." And just because Abraham Lincoln fulfilled the work begun by George Washington doesn't mean he's any better than the lousy peanut farmer from Georgia who gave us malaise. After all Jimmy Carter was a nice guy who smiled a lot, and that's got to count for something.

Oy. Well, for what it's worth, happy WashingtonAdamsJeffersonMadisonMonroeAdamsJacksonVanBurenHarrison
ReaganBushClintonBush day everyone (with a shot out to George Will on that one).

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Secret Tapes Only Further Reveal Bush’s Character

It has often been said that a second term as President of the United States is a mixed blessing. Most of those that have successfully made to a second round in office have lived – or, in the case of some, not lived – to regret it. Abraham Lincoln and William McKinley fell to assassin’s bullets before their second terms were even really underway. Andrew Jackson was censured by the U.S. Congress during his second term for his attack on the Second Bank of the United States (although that censure was later repealed). Franklin Delano Roosevelt got into political hot water over his plan to pack the Supreme Court with pro-New Deal justices and saw his legislative agenda lose steam. Richard Nixon had Watergate. Ronald Reagan had Iran-Contra. And Bill Clinton – well, you know.

When news of secret tapes – surreptitiously recorded by one of then-Governor Bush’s personal advisers, Doug Wead (pronounced "weed"; an apt name, I suppose), in 1998-1999 – came to light this weekend, members of the American left were practically giddy. Here, they thought, was the proverbial silver bullet that would allow them to put a stop to the Cowboy from Texas, to freeze his agenda in place, to immobilize him politically until the end of his term. Implicit in their salivating joy is the notion that those tapes undoubtedly contain harmful information that would turn the American people against the president. Surely, in hours’ worth of audio tape, there must be something that can be used to destroy Bush.

Thus far, however, the tapes have been a huge disappointment to the left, as well as little Woodwards and Bernsteins everywhere. Why? The snippets that have been released merely show that Bush is, for the most part, the same man he is in 2005 as he was in 1998 – namely, a good and decent one. More to the point, they reveal the character that lies at Bush’s core, and provide a sharp contrast between Bush and at least some of his predecessors.

Take Bush’s comments regarding marijuana. Already, the media have had paroxysms of ecstasy over Bush’s implied admission that he smoked marijuana. Indeed, the statement in question does make it seem as if Bush “partook” at one point in time. Let us assume, for the sake of argument, that it is a given that Bush did drugs in his younger days. What gets lost in the media’s excitement are two broader points about who Bush is, how he thinks, and how he views his current role.

The first and most important point is that Bush would probably be the first person to tell you that he is a very different person than he was 25 years ago. Having given up drugs and alcohol, Bush turned his life around in an effort to restore himself and keep his family together. I have no doubt that, if asked in confidence, Bush would tell you that his long-ago use of drugs was part of a forsaken past, and that he would like to keep it in the past. Bush, like most of us, has the good sense to not confuse past mistakes with things worth trumpeting.

Second, even in the earliest stages of his political career, Bush was keenly aware that words and actions can have a profound impact on people, especially the young. One of the released sound bytes reveals Bush telling Weed that the last thing he wanted to do in the course of the 2000 presidential campaign was have kids using drugs because they heard Bush say that he had done so. This has been the credo of the Bush White House: let your actions speak above and beyond your words.

Now, I could easily see the reader of this post being skeptical about Bush’s comments if they had been prepared for a press release, or had been captured during a prime time interview. Undoubtedly, such comments would be for public consumption and would be serving a political end. What one needs to remember here is that Bush did not know he was being recorded – and by a trusted adviser, no less. I cannot stress this enough: perhaps two of Bush’s most appealing characteristics are his forthrightness and his plain-spoken approach to issues. Here, behind the scenes, in the comfort of perceived privacy, Bush expressed exactly the same sentiments he would have during a State of the Union address. That counts for something.


It would be too easy to get into a comparison of Bush and Clinton – who is a better person, who is/was a better president, which administration necessitated the wearing of rubber gloves in the Oval Office, and so on. Rest assured, it would not come out in Clinton’s favor. (I leave this debate for the Halo Scanners.) I will say only this: Bush is a man of remarkable authenticity, and it comes through all too clearly in these tapes. You can discern authenticity by watching what people do when the klieg lights and cameras are off and no one is watching them. Only then, in the stillness of intimacy, can you really and truly understand who they are and what makes them tick. When the lights and cameras were off and no one was watching, Bush was still the decent person we see in the White House today.

Happy Birthday, George Washington!

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Sunday, February 20, 2005

Excellent film

Lest Paul be the only one to use this forum to make recommendations re. entertainment consumption, I wish to put my two cents in on the side of The Day of the Jackal. Not the crappy Bruce Willis remake (in which Jack Black offers the only amusement) but the 1973 original. ("Original," here, means "first adaptation of the novel.)

The plot begins when the French government learns that veterans of Algeria, angered at DeGaulle's release of that country, have hired an unidentified assassin to off the French president. The ensuing cross-Continent detective work is kick-ass. The film also just looks good: men in suits; people smoking; sporty cars.

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Saturday, February 19, 2005

Unconfirmable speaks

I like to think that the radio silence on my part has been deafening. My legions of fans may have been wondering: "Is life as a first year associate that busy?" And I answer: "Yes. Yes, it is."

What prompts this return is a concurring 3d Cir. opinion from yesterday (to my attention from How Appealing, via co-clerk NMR). The op., which starts on p. 30 of the .pdf file, addresses a question that perplexed me as a law clerk: what is a question of fact and what is a question of law? This question did not perplex my co-clerks, so much as it annoyed them; it annoyed them because I was always harping on it.

The question is an important one, because it sets the standard of review. (I'm not sure district judges ever have to face the issue, though they might have to in their appellate or quasi-appellate capacity over bankruptcy judges and magistrates.) Judge Ambro's suggestion follows:

…However, a practical test I propose for determining whether a question is one of fact, of law, or of both fact and law, is as follows. A question of fact can be answered solely by determining the facts of a case (without any need to know the law relevant to the case). A question of law can be answered solely by determining what relevant law means (without any need to determine the facts of a case). A mized question of fact and law can only be answered by both determining the facts of a case and determining what the relevant law means.
For example, imagine that a man is appealing his conviction under a law that states "it is a crime to be tall." What kind of question is: “Was the trial court correct to find the man ‘tall’?” Can we answer it solely by determining the facts of the case? No, because even if we know the fact that the man is five feet ten inches, we do not know if he is “tall” in the sense that Congress intended the word “tall” to mean. Can we answer it solely by determining what the relevant law means without knowing the man’s height? No, because even if we know that the statute defines “tall” as “six feet or taller,” we do not know how tall the man is. Thus, we have a mixed question of fact and law. Once we know the facts of the case (that the man is five feet ten inches tall), and what the relevant law means (it is a crime to be six feet tall or taller), we can answer “no” to the question “Was the trial court correct to find the man 'tall’?”
Judge Ambro's solution is simple, straightforward, and completely useless.

A couple of observations. First, it presumes that Congress actually had a set of facts in mind that they wished to regulate. Of course, that is not true. (Not only do the members of Congress not have anything in mind when they legislate, they usually don't have anything in mind at all. Do people realize how stupid legislators are?) But I don't suppose this fiction works any more havoc here than it does in other places, so I'll let it pass.

Second, note the way Ambro, J.'s, distinctions are worded: Facts can be determined solely on the basis of facts. Law can be determined solely on the basis of law. Somehow, unenlightening. Oh, and for a mixed question of law and fact you need to know both the law and the facts.

More importantly, it is useless, because it produces the result that there are few pure questions of fact, and few pure questions of law. There would still be some cases in which a court had a pure question of law. So, for example, if a defendant claims "Congress' statute, enacted on such-a-date, repealed the statute under which I was convicted." The prosecution responds "No, it didn't, that was a scrivener's error." And then the district court, and court of appeals, have to decide the "pure" scope of the amendatory statute. But the vast majority of cases wind up mixed questions, in which the judge needs to parse out the standards of review: the question which was supposed to be resolved by the first round of distinctions. So we're back at where we started.

Very seldom does a legal question play as stark a role as in my repealed (or not?) statute hypothetical. It is more often the case that a judge speaking about "pure" law is -- unless he is quoting -- offering an improper advisory opinion. Judges are free to quote to their hearts' content; but unless the facts of a case force them to address an issue, what they say about law isn't worth the paper it's written on. Which leads me to a segue. (Don't you wish blogger had footnotes?) I tend to fall on the "conservative" side of legal issues. But there is a strain of that side that bugs me: the harping about how judges should apply the law without concern for the facts. This is simply silly. Judges decide cases, and you can't have cases without facts. Law is, in many ways, a second-order phenomenon that never actually happens (or can never be observed) within one case. Instead, you know the law when you observe over a sufficiently long period of time how judges dispose of fact situations. But, then again, I think all regulatory statutes should be repealed and we should return to common law regulation. (Don't you wish blogger had footnotes?)

But the root of my opposition to Ambro is based on a lesson that it took me too long to learn. The lesson is this: When you think a social form produces an unintended consequence, ask yourself if that was really the intended consequence all along. There are many seemingly-fortuitous consequences that were really intended from the get-go. Here's an example. (Don't you wish blogger had footnotes?) Congress passes a statute guaranteeing that, if you represent a veteran, you will receive a $100 fee. Wow, you might first think, Congress is making sure there are funds so that veterans have attorneys. They must want to increase the number and quality of claims on veterans' behalf. But the opposite happens (and was intended to happen): attorneys don't work for $100, so veterans wind up without representation, so there are fewer claims on the government.

Applying that lesson here, we should start with the last step: that certain aspects of a district court's decision can be easily altered on appeal, and certain aspects cannot. My conclusion is: appellate judges do not apply de novo review once they determine an issue is a legal one. Rather, they decide an issue is a legal one so that they can review de novo. I don't think this is done in a devious fashion (necessarily). Instead, it is in large part based on the hierarchical structure of judges. Consider 100 people making decisions; despite written instructions, there is going to be a lack of uniformity. But if the decisions of those 100 people are filtered through 10 reviewers, that lack of uniformity is decreased. The parts that should be uniform are what we deem to be legal questions, and are the questions that are 10 hypothetical reviewers are most free to correct. But the parts that need not be uniform (because the facts of cases differ) are the ones that the 10 people don't really care to alter.

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Friday, February 18, 2005

Chalk one up for the Commonwealth

There's some days where it's good to be a Virginian!

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Top 10 Movies

Slow work day, so I thought I would add to the substantive political dialogue on this site by creating a new list: my pick for the top ten movies of all time.

10. The Devil's Advocate This used to be much closer to the top, but over time, Keanu "Wow, dude, you're like Satan and stuff" Reeves' complete inability to act distracts from the affair. That said, there are two reasons to love this movie: Charlize Theron nude, and Al Pacino's completely hammy and over-the-top performance, particularly in the final 20 minutes. And how can you not like a movie that contains the classic discussion of lawyers and how they are quite literally doing Satan's work. "Do you know that there are more people in law school than there are lawyers walking the earth? We're coming out! Guns blazing."

9. Dr. Strangelove Speaking of hammy, over-the-top performances, this movie is full of brilliant performances of this nature. Peter Sellers proves his sheer excellence in not one, not two, but three roles, and George C. Scott as General Turgidson is one of the great performances of all-time. And of course there is the eternal image of Slim Pickens riding the nuke all the way down as it crashes into Russian soil. "Shoot, a boy can have a pretty good time in Vegas with all that stuff." Bonus points for anyone who can name the city originally mentioned in that line.

8. Star Wars Episode V: The Empire Strikes Back Only a true Star Wars geek would write the title out like that. And so it is. Anyway, I love all the Star Wars pics - yes, even Episode I, but really this is the only one that actually has a real substantive plot. I think what makes this the best of the lot is the dark nature of the movie. All of the rest contain much fluffery that, while endearing in its own way, detract from the mood. This has none of that. I'm praying that neither will Episode III.

7. Field of Dreams There is only one movie that can make me cry, and I trust many other guys can relate. When Ray realizes that the catcher is his father, and the two of them have a catch at the end of the movie . . . I have to pause here. Getting verklempt. Okay, better. I can even overlook Shoeless Joe Jackson batting righty in order to appreciate this movie.

6. Goodfellas From Ray Liotta as a baseball player to Ray Liotta as an out of control mobster. Actually, what makes this movie interesting is that it one of the few times that Liotta does not play the most insane character in a movie. I've thought long and hard about what not to like about this movie, and there's really nothing I can think of. Hell, even the soundtrack is brilliant. "Why am I funny?" Yeah, I've had that discussion with many a person.

5. Pulp Fiction Another movie that used to be slightly higher, but has not aged as well for some reason, though still vastly entertaining if for no other reason that it still feels completely unique. Throw out Bruce Willis' really fucking annoying wife, and this movie is perfect. But man, she's so annoying that it just drags the movie to a hault. But still, Samuel Jackson? That's one bad ass motherfucker.

4. American Beauty Okay, so this one is a tough call. I see the backlash against this movie and how it is almost conformist in its critique of conformity, but I loved it the first time I saw it, and I still appreciate every second of this wonderful picture. No, suburban life is not the hell that director Sam Mendes makes it out to be, and one should be careful about unduly praising reckless behavior. But this movie is more than some mindless Hollywood drivel about spontaneity. We all have moments in our lives when we realize that it hasn't quite turned out as expected, and we should strive to get back to the idealism of youth, though perhaps without completely abandoning the maturity that comes with age. Ah, whatever, great cast, great script, great movie.

3. The Godfather Come on, it's the Godfather. Do I really need to explain. No, then let's move on.

2. Se7en Couldn't resist the somewhat hackneyed use of the numeral in place of the letter v. So be it. I like dark movies. I like movies that do not necessarily have happy endings. I like movies that play around with theological themes in a way that is neither preachy nor mindbendingly silly. I like movies which open with Nine Inch Nails. Most importantly, I like movies in which I am entertained for every second, and this is one of the rare ones in which my fingers are not playing with the remote for even a moment in considering fast-forwarding. The fact that this movie failed to receive an Oscar nomination is the greatest crime in the history of the Academy Awards - especially considering it was passed over for such thought-provoking classics as Babe and Apollo 13 - and is a reason I rarely watch the ridiculous show, unless of course some really cool person is happening to have an Oscar party.

1. Lord of the Rings I ain't separating them, because if I did they would completely swallow the list. You see what happens Hollywood when you actually follow the text of the book? Lots of movies of this nature get caught up in the technology (see Matrix, The), but fortunately Peter Jackson remembered you also need a story in order for the viewer to appreciate the entire movie-going experience. I watched all three volumes - uncut - recently, and it just made me appreciate the sheer perfection of this movie (or movies). Action, drama, humor, great cast, and a pretty cool score to boot. But no, I did not dress like a character when I attended any of the showings, unlike the poor young chap next to me at Return of the King who claimed to be quite fluent in the "Qwindi" dialect of Elvish. It may be a great book and movie, but it's just that fellas.

Honorable mention: The Usual Suspects, One Flew Over the Cuckoos Nest, Silence of the Lambs, Animal House, Ghostbusters, E.T., The Exorcist, The Godfather Part II

Enjoy your weekend

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Our friends and neighbors

The story of Mahar Arar, a Canadian citizen picked up while transferring through JFK en route to Canada and whisked over to one of the scary, repressive, torturing regimes of the big, bad common front on a $40M+ Gulfstream Jet--by none other than the good ole' USA---is not new, but in light of GC's excellent post yesterday, I thought Herbert's Op-Ed today was most appropriate: It reminds me of slogan oft-thrown around during the recent election season...something about the rhetoric not matching the record... Lest I be mistaken for for a total peacenik for those of you that would prefer to see Iran razed and turned into a giant Exxon station, there is clearly a need for extraordinary measures in certain circumstances...I just think that the liberal application of said measures by this administration has caused the exception to swallow the rule.

Here's at least one of the "ghost" planes--as some of our readers may be more familiar, it's fair to say that those FAA folks down in OKC are awfully meticulous about their records:,1,1855419.story?coll=chi-news-hed&ctrack=1&cset=true

ps. would someone teach me how to use the linking feature?

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Thursday, February 17, 2005

Assassination, Rebellion, and the Common Front

I suppose our world has become so jaded in recent history that we barely notice assassinations. They are as much a part of the human condition as are the lust for money or power. We read about them in books, and we watch them live on TV. I suppose our jaded status was inevitable.

And yet sometimes, an assassination occurs, and its impact is profound and instantaneous. The deceased need not even be a household name – all that matters is that conditions be just right for the world to take notice.

There was just such an assassination in 1914. Few knew who Archduke Franz Ferdinand was, let alone Gavrilo Princip, the man who assassinated him. Almost a full century later, their names are consigned to a common historical file, forever linked as triggering what became known first as the Great War, and, later, as World War I. Or perhaps one recalls the duo of John F. Kennedy and Lee Harvey Oswald. We in the United States take for granted that this was an event of epic proportions, not only because of the intangible effect the assassination had on the American psyche, but also because of the very real destabilizing impact it had on subsequent administrations and, just maybe, the world.

And there are others.

It is entirely possible that the name of Rafik Hariri will join this unfortunate select list of assassinated individuals who have, wittingly or no, altered the course of history. On Monday, Hariri – a Sunni Muslim of Lebanese descent, revered as a national figure and credited with resurrecting a weakened Lebanon in the wake of a decades-long civil war – was assassinated when his motorcade was shredded by a massive car bomb.

The Middle East, volatile as it is on any given day of the year, was nonetheless thrown into a greater chaos by the murder. Lebanese citizens – as much as there can still be considered an independent Lebanese state – formed spontaneous rallies, simultaneously mourning their national hero and thumbing their collective nose at the Syrian authorities that continue to occupy their country. Syrian authorities, led by the hapless child-dictator Bashir Assad, immediately denied any involvement in the bombing, even though outside observers were quick to point out that the assassination would ultimately serve Syrian ends by eliminating a potential political opponent whose power was growing. The United States withdrew its ambassador to Syria in response to the bombing, but not before issuing a stern warning to Syria about the need to discontinue its occupation of Lebanon. The latest in a string of troublesome events is Iran’s announcement that Iran and Syria have formed a “common front” against what it perceives to be western aggression.

I would like to make two basic points that tie into the current national security debate.

First, for those of you who continue to suffer under the delusion that al Qaida is our only true global threat, and that Iraq was nothing more than some Carlyle Group-induced blood-for-oil diversion, I encourage you to pay close attention to the language flowing out of Damascus and Tehran. These are not poor little Islamic nations being tormented by the West; these are in fact the tormentors themselves. Syria torments not only its own citizens, but those of Lebanon, by depriving them of rights and punishing dissenters; Iran's mullah-cracy torments the greater region with its blustery brand of foot-dragging and its talk of acquiring nuclear fire. Indeed, in the wake of the liberation of Afghanistan from Taliban rule and the recent Iraqi elections, Syria and Iran continue to make it all too clear that radical Islam is a problem that emanates from the hearts of these very dictatorial nation-states. If you find yourself wondering where terrorist groups like al Qaida find financing and moral support, look no further than the so-called common front. Global security depends on the United States’ ability and willingness to both recognize that the threats we face come from multiple sources, including sovereign nations, and deal with them accordingly.

Second, for those of you who wanted the troops home yesterday, you now see why this was never going to happen anytime soon. Even if the Iraq situation were to magically clear up tomorrow – which is not going to happen, even under the rosiest of scenarios – the overall objective was to drain the larger swamp that is the Middle East, which obviously requires that we deal with Syria and Iran. These totalitarian regimes realize that their survival is pegged directly to the failure of freedom in Afghanistan and Iraq, and anywhere else it might sprout in the region. They will do whatever it takes to stop it, even if that means forming a belligerent military alliance that threatens retribution at every turn. Having our troops stationed in the region means that we will be able to quickly mobilize to address those threats as they arise, if they arise.

(If visualizing this mess helps, I encourage you to check out a map of the region in your free time. You will note that Iran is currently flanked by both Afghanistan and Iraq, both of which contain U.S. troops. Use your imagination.)


While I am not rooting for global conflagration – far from it – I just wanted to point out that the assassination of Hariri has brought things to a proverbial head in the region, and the United States would be remiss if it did not address the problem firmly. How we deal with the situation will no doubt affect the course of human events. And I won’t lie: it is likely to get bumpier before it gets smoother. But I encourage you to take the long historical view on the coming weeks. As long as the common front remains in power, they remain a common danger to us all.

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Tuesday, February 15, 2005

The following announcement has been paid for by the New World Order

One pill makes you larger
and one pill makes you small
but the ones that mother gives you
don't do anything at all
Go ask Alice
when she's ten feet tall

The other day I had the distinct privilege of going to the National Archives. Ahhh, so many cool documents, dilegently restored and kept clean by the wonderful men and women, but mostly women, who work there. (Remember kids, bookbinding is fun.)

And behold I entered the divine sanctuary which kept the Constitution, the Declaration of Independence, the Bill of Rights, and Al Gore's Earth in the Balance. The huey green light nearly blinded me, but there they were, the sacred documents of our Nation's history. Walking up to the Consitution my body trembled, my mind pulsated with the incredible excitement of being in the presence of the one true document. Or maybe it was the lack of sleep. Whatever, the point is it was really cool.

But what was cooler was having the secret revaled to me. Though conservative since birth, and therefore not permitted to see the truth behind these documents, some divine manifestation allowed me to read what until now only the high priests of the Supreme Court had been able to see. That's right. The secret scribblings of the Constitution, written in disappearing ink, hidden to all but the mighty men in black, were revealed.

And behold I saw all sorts of penumbras and emanatations. The undisputed right to abortion on demand was suddenly visible to me. There it was, Article 7, section 3, right between the right to gay marriage and the incorporation doctrine. Finally, full enlightenment was endowed to me, pitiful conservative that I am.

And lo Harry Reid's words were revealed to be true. Indeed, whatever doubts I had about the scrappy little man from whatever the hell small town in Nevada the guy is from were erased. As Ramesh Ponnoru relates:
Harry Reid today said that the people President Bush just renominated for judgeships “have already been turned down in the Senate.” He also said that there has “always been a 60-vote [threshold] for judges”: “Go back decades and it’s always been that way.”
Nay, Harry, nay. Not decades, but centuries. For written in the secret pen oh those many years ago was the mystery clause of the Constitution. For over two centuries dimwitted fools mistakenly believed that the Constitution merely required a majority vote to confirm the President's nominees to the Courts. FOOLS! No, clearly written in the secret pen are the words "there shall really be a 60-vote threshold for judges."

You see, Senator Reid must have the same divine guidance that I felt that day. He, too, understands that the Constitution really requires a 3/5 vote for confirmation. After all, it's there in black and white. Well, really blue and gold - that's the color of the magic ink that the rest of you can't see.

And to think we made fun of this holy man last week for crying like a little girl when the Republican party sent out letters daring to criticize this true genius' judgement. Surely we were wrong in our censure of the man who has . . . the gift. We must all certainly apologize for thinking that Senator Reid's whiny little outburst from last week where he revealed himself to be a thin-skinned weakling unworthy of setting foot in the Capitol let alone holding a high seat of power because only a little girly man would have the unmitigated gaul to whine about unfair haracterizations when after all the party that he represents specializes in unfair characterizations if not outright slander against anyone who dares hold an opinion contrary to their unspoiled opinions, opinions for which no right-thinking person could ever criticize after all they've got all the wise and talented academics who know more than the rest of us dumb Americans and if they social security is not in crisis well then it must not be in crisis because after all they said so, it's not like a simple Lexis-Nexis search would quickly reveal that most of these bozos were saying the opposite thing like five years ago because that would imply they're all hypocrites.

And how can I accuse the party which just selected Howard Dean as its chairman of hypocrisy, when after all who better represents the party of Jackson's maddening descent into more madness. I could go on and on about how Howard Dean is about as qualified to lead a major political party as Michael Jackson is to be a kindergarten teacher, but that would be a cheap shot unfair to Michael Jackson. After all, he does have experience with children. And, no, I won't point out the bitter irony of a bunch of people who have spent the better part of five years deriding President Bush as a complete moron now holding up as their great icon of hope a man whose default facial expression is "deer caught in the headlights." Oh come on, it would be a cheap shot to note that every time that the man is asked a question more complex than what's your favorite type of syrup he freezes up and answers in a hesitating voice, because after all the man was what, the governor of fucking Vermont, and he like raised a lot of money in order to finish in third freaking place in the IOWA caucus. Oh yeah, he be the Messiah. I'm sure that seminar, "How to blow 52 million dollars in one month in order to lose to a horse-faced Senator from Massachusetts and some slick-talking lawyer boy from North no South no North Carolina who wouldn't know a filibuster from a Dave N' Buster in some podunk caucus in the middle of the country" has been a big hit at all the DNC events.

But when you have as much talent as the Democrats, who wouldn't be excited? You've got a Senator who has a secret insight into the Constitution leading them in the Senate, and a dingbat from Vermont leading the national party. And who can forget their weighty House leader, the woman who awed the world only a couple of weeks ago with her dramatic State of the Union response. Schoolhouses across the Middle East have posted her words in every classroom, as they have inspired millions of little would-be democrats of the true value of boredom.

Let the good times roll, baby.

Cellophane flowers of yellow and green
Towering over your head
look for the girl with the sun in her eyes
and she's gone
Lucy in the Sky with Diamonds
Lucy in the sky with diamonds
Lucy in the sky with diamonds

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Once in a Lifetime

Every couple of decades a member of the DC city council says something reasonable. When such occasions arise, it is best to button up because the temperature down below - and I don't mean Paul Hogan's homeland - just got a wee bit colder.

Anyway, there is an article in the DC Examiner on the question of whether the cameras they've got all over the city in some crazy homage to Oceania have in fact saved lives. There was a 35% decline in traffic fatalities last year, and some attribute the decline to the traffic cameras. Others have noted that there were fewer drunk-driving fatalities, and certainly drunk drivers do not care about cameras. Still others have observed that there has been no discernible decline in speeding across the city.

Whatever one thinks about those marvellous cameras, which really none of us should question (Shhhhh. The red light is on, meet me over by the Waterfront mall at 2 am to discuss this issue. Wear all black.) it's hard to disagree too much with City Councilman Phil Mendelsohn - never thought I'd type that.
"You're playing with the numbers to try to prove something,to justify the amount of money you've extorted from drivers in the District," he said. "You've got mayhem and murder in the streets, but the one thing the District does well is go after drivers, because they are the cash cow."
Perhaps Councilman, oh, excuse me, councilperson Mendelsohn is being a bit unfair. After all, it is not right to expect the overworked police force of the District, people who have spent hours upon hours cautioning people not to jaywalk, patrolling the mean streets of Friendship Heights, and sitting in threes to patrol the intersection of Military Road and 31st street just to catch someone going 4 miles over the speed limit, to actually go into the dangerous areas of the city to bust people committing real crimes. Sure, there might be some guy selling crack along the Anacostia, but it's the guy chatting on his cell phone while driving that is the real menace to society.

At any rate, three cheers to Phil Mendelsohn. But just to calmly reassure my beneficent DC guardians, I repeat my allegiance:

I love big brother.

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It's a beautiful day

The sun is shining just a bit brighter today, the air seems just a tad fresher, and life's worries seem to be drifting away. Why? Because pitchers and catchers reported for spring training this very day, signaling to all of us sports-starved maniacs that baseball season is but right around the corner.

For those of us who couldn't quite frankly give two shiznits about the pathetic NBA, this is truly the most miserable time of the year. Football season has ended, and there's nothing left to do but, I don't know, live life. But in camps around Florida and Arizona, the boys of summer are gearing up and getting ready to play some baseball. Of course, some have reported aleady, like this year's eventual Cy Young winner Pedro Martinez. But as of today it all begins again for the greatest sport God has ever blessed mankind with.

Everything seems possible this time of the season. Everyone is even with the Yankees, and everyone is a potential world champion. Except the Cubs, because only one curse can end per lifetime.

And speaking personally, this time of year always brings me back to my youth, of gearing up for the upcoming little league season by playing catch with my father or the kids on the block. The glove is re-oiled (ah, the smell of baseball glove oil), and there remains the eternal optimism that you just might win one game this year. Yeah, I had a really lously little league team every solitary season, but such is life.

And of course it should happen to be an incredibly bright and sunny mid-winter's day in the nation's capital, which only serves to re-inforce that Spring is nigh, and the crack of the bat will soon be heard once again in this city. Oh sure, the team will stink, but there's baseball to be played, and at least for this brief time we can focus on the glorious anticipation of a new season. I already can't wait for that first trip to RFK, to sit and watch Pedro come to town and pitch the first perfect game in Mets' history.

Hey, it's the first day of spring training. Everything is still possible.

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What about Bob?

A U.S. appeals court ruled Tuesday that two journalists (Judith Miller of NYT and Matthew Cooper of Time) must testify before a federal grand jury about their confidential sources in an investigation into a leak that exposed the identity of a covert CIA officer.

Personally, I think that the pubic interest what I'll refer to as 'journalistic privilege', has limits, say for example having a reporter aid and abet (not accidental choice of words) the "source" in releasing information, the sole cause of which is maliciously political and puts the lives of several people and national security in danger. Where this line may lie for others can be the subject of a future debate (or this one here, if you so choose), but what I'm really looking for are opinions, explanations, conspiracy theories, informed (or uninformed) musings about how the errr uh....intrepid...cough cough...Mr. Novak (the one whose actions are, let's say "implicated" to a MUCH greater extent than Miller or Cooper) has remained wholly unscathed?

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Monday, February 14, 2005

Dave's lost that loving feeling

Dave over at Garfield Ridge has tender wishes for those dating this happy Valentine's day.
If you are not married, and you are instead dating someone on this Valentine's Day, I wish you one thing:

Ass cancer.

Yes, you heard me right: ass cancer. Festering, lumpy, hot-to-the-touch, tumor-ridden ass cancer.

If you're a man who's taking his sweetheart out for dinner this evening, I want you to get food poisoning and vomit up your gall bladder.

If you're a woman looking forward to flowers, I hope your ovaries calcify.

If you're a man shopping for the perfect piece of jewelry, may your credit rating be ruined by Nigerian identity theives.

If you're a woman salivating at the thought of Valentine's chocolates, you should know that chocolate is made out of puppies, you disgusting puppy-eater.

If you're a man splashing on a touch of cologne, I hope it splashes in your eyes, sulfurizing your corneas into a dripping mess of goo.

If you're a woman laying out here delicate underthings for an after-dark adventure, I hope you get an oily case of the Clap.

If you're a man dressing up for a night out on the town, I hope your testicles get shredded in your zipper.

But again, if you're married today: congratulations, you've found true love.

If you're a pair of dating lovebirds, however, I wish you an unending nightmare of bloody rectal ulcerations from seat worms.

Nothing personal.
While I can't say I wholeheartedly endorse Dave's sentiments, I do understand where he's coming from.

Happy Hallmark card holiday, everyone.

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Friday, February 11, 2005

Virginia Stirs Incorporation Debate With Claim that the First Amendment's "Establishment Clause" Does Not Apply to States

According to a brief filed yesterday in the Supreme Court by the State of Virginia, the establishment clause of the First Amendment does not apply to the states (Hat tip: Findlaw via How Appealing) .

This attempt to rekindle the "incorporation" debate seems ripe for the members of this blog, many of whom take an interest in the Constitution and in constitutional interpretation. According to the Findlaw column, Virginia filed this brief in the upcoming case of Cutter v. Wilkinson, in which Florida has challenged the constitutionality of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), specifically as it applies to "institutionalized persons" (i.e., prisoners). Apparently, Florida is one of several states experimenting with religious prisons and/or with religious prison wings (the "God Pods" in Iowa), which it seems may violate the Constitution’s establishment clause.

Now the establishment clause appears in the First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (emphasis added). So how is it that such a prohibition is applied to the States, which are clearly not governed by Congress. The answer lies in what has become known as the "incorporation doctrine."

The incorporation debate has its origins in a 1938 case known as United States v. Caroline Products Co., 304 U.S. 144. In that case the Court suggested in footnote 4, what is now the most famous footnote in all of Supreme Court jurisprudence, that:

There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution, such as those of the first ten Amendments,
which are deemed equally specific when held to be embraced within the
It is unnecessary to consider now whether legislation which
restricts those political processes which can ordinarily be expected to bring
about repeal of undesirable legislation, is to be subjected to more exacting
judicial scrutiny under the general prohibitions of the Fourteenth Amendment
than are most other types of legislation. On restrictions upon the right to
vote, on restraints upon the dissemination of information, on interferences with
political organizations. Nor need we enquire whether similar considerations
enter into the review of statutes directed at particular religious, or national,
or racial minorities. Whether prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect minorities,
and which may call for a correspondingly more searching judicial inquiry.
(internal citations omitted)

This language laid the framework for the notion that the Fourteenth Amendment fundamentally changed the interpretation of the Constitution. For example, the Court has held that "[t]he Fourteenth Amendment denies the States the power to ‘deprive any person of life, liberty, or property, without due process of law.’ In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment." Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968).

While it is true that full incorporation of the Bill of Rights has never commanded a majority of votes on the Court, the Court has adopted "selective" incorporation, which includes the First Amendment, as well as many, but not all, of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. See e.g., Fiske v. Kansas, 274 U.S. 380 (1927); Near v. Minnesota, 283 U.S. 697 (1931); DeJonge v. Oregon, 299 U.S. 353 (1939); Hauge v. CIO, 307 U.S. 496 (1940); Catwell v. Connecticut, 310 U.S. 296 (1940); Everson v. Board of Education, 330 U.S. 1 (1947); Mapp v. Ohio, 367 U.S. 643 (1961); Gideon v. Wainwright, 372 U.S. 335 (1963) and others.

Now it is also true that the decision of which protections to incorporate was subject to interpretation. The Court created standards that were vague and erudite such as, "principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental," or "implicit in the concept of ordered liberty" (See Palko v. Connecticut, 302 U.S. 319, 325 (1937)) to describe those protections that deserved to be applied against the States as part of the notion of "Due Process of Law."

So where does Virginia’s argument that the establishment clause shouldn’t apply to the states come from. Well, the short and admittedly cynical answer is the it comes from nothing more than a strict reading of the text of the First Amendment, and merely ignores as inconvenient the last 66 years of Supreme Court jurisprudence. There is, however, another answer, namely the idea comes from Justice Thomas dissent in Elk Grove Unified School Dist. v. Newdow, more commonly referred to as the "Pledge of Allegiance" case. There, Justice Thomas seemed to suggest that maybe the establishment clause doesn’t apply to the states after all. Justice Thomas, who of course doesn’t agree with the notion of stare decisis and the deference that is to be given to prior precedent of the Court, seems to have arguably invited a "Pandora’s Box" if you will of federalism principles that for the most part has been settled law for almost the last three-quarters of a century.

The fact that I disagree with Thomas on this, as well as almost everything else, doesn’t mean that his argument and consequently Virginia’s is without merit. Nevertheless, it seems that at some point we have to decide what the impact of the Fourteenth Amendment had, not only on American jurisprudence, but on the history of our nation. It seems to me that until we settle the fundamental question of what the Fourteenth Amendment was supposed to accomplish and what it means, then we are destined to continue to fight over issues such whether or not the State has the power to impose religion on its citizens. As always comments and thoughts are most welcome.

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Thursday, February 10, 2005

Societal clairvoyance in VA of all places...

The Virginia House of Delegates yesterday approved a constitutional amendment to define traditional marriage, making Virginia the first jurisdiction in the region to take such action. The amendment,which defines marriage as the union of a man and woman and bans same-sex civil unions, must be passed by the legislature again next year before it is sent to voters in November 2006. See

After the vote, Delegate Adam P. Ebbin remarked "[t]oday is one of the moments of which we will one day be ashamed." While Ebbin, who is gay, is clearly in the minority in this fire-engine red legislature, he undoubtedly had predecessors who being in the then-minority must have uttered similar misgivings when the body passed laws promoting other similarly bigoted, regressive and patently unconstitutional legislation dealing with slavery, segregation and the like.

Mr. Ebbin is no a fortune teller--I'll bet he doesn't even own a crystal ball, but in this prediction he is irrefutable. Indeed, there is tradition, principle, history and moral values at stake...those of this country and what it was founded on.

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In Praise of Rep. Bill Thomas for Challenging GOP Tax Policy

Contrary to the rumors of some and the wishes of others, I have not dropped off the face of the earth, but merely have been deluged with "regular work" that has kept me from my general blogging duties until now.

Now that the disclaimer is out of the way, I want to draw attention to Robert Novak’s column in today’s Washington Post. Now I’m drawing attention to this not because its Mr. Novak’s column, but rather because of the column’s subject matter. Mr. Novak’s column reports on statements made by Rep. Bill Thomas (R-CA) who is the Chairman of the House Ways and Means Committee at the recent GOP retreat in West Virginia a couple of weeks ago. Ways and Means, of course is the committee responsible for Social Security Reform, but also the tax laws, which makes Mr. Thomas a very important figure nowadays.

According to Mr. Novak, Mr. Thomas did, in part, a very good thing. Namely, Mr. Thomas refuted and more importantly potentially killed any further debate and consideration of what may be the two worst ideas in American economic and fiscal policy: the flat tax and the national sales tax. With respect to the flat tax, Mr. Thomas pointed out that in order to implement a flat tax individual citizens would have to give up their ability to deduct popular economic policies such as the ability to deduct interest from home mortgage, charitable donations, state and local income taxes. In addition, Mr. Thomas pointed out that if you were to get rid of the graduated income levels the rate would be too high for low-income workers to pay and still be able to avoid government assistance, thus an exception would have to be created, which destroys the entire purpose of the flat tax, namely to have one rate with no exception.

Shifting to the national sales tax, Mr. Thomas reportedly challenged GOP members to guess whether they or their constituents would like to see the cost of goods, specifically consumer goods rise by approximately 30% which is one of the numbers that many have speculated would have to be instituted to generate the necessary revenue to cover the expenses of the federal government. Of course in the wake of new cost estimates for GOP enacted entitlement programs that sales tax number may even rise higher. Further, consider that many of the sales tax proposals exempt food, clothing and other "essential items" which essentially makes this a luxury tax on only the rich or on "entertainment dollars." In other words imagine paying 30% more on your already $9.00 movie ticket, making it at least $12.60. Even worse, imagine a 30% tax on a new car that costs $20,000. That $6,000 just in federal sales taxes, not to mention any applicable state sales taxes or other fees commonly associated with buying a new car.

Praise needs to be given to Mr. Thomas for directly challenging these two ideas, especially considering that they are popular among members of his own party. There needs to be a debate on these issues, and ideas need to continue to be generated, but foolish and unmanageable ideas need to be rejected as soon as they are proposed so that room can be made for ideas that might actually impose sound economic and fiscal policy in the United States.

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The Party of Who?

There is an op-ed in today's Washington Examiner written by former DNC press secretary Terry Michael, titled, "Rebuilding the Democratic Party brand - Back to the future with a return to liberalism's Jeffersonian roots." My ears, or rather eyes, perked up at the title. Reading on, the story is actually just part 7583456 in an on-going series of what the Democrats need to do in order to firm up their public image and re-connect with the voters. He argues that the Democratic party offers, in contradistinction to the GOP, no tangible and consistent political philosophy, and the party should return to its Jeffersonian roots.
From our Jeffersonian roots, we have the glue to make the brand sticky again. The new desktop-empowered generation, turned on by Republican economic choice, but turned off by the social-cultural intolerance of the GOP Taliban wing, could embrace Democrats if we return to our founder's philosophy -- a back-to-the-future Jeffersonian liberalism.

Jefferson, who said the government that governs least governs best, knew the era of big government was over before Bill Clinton proclaimed it. If we listen to the man from Monticello, who advocated "peace, commerce and honest friendship with all nations, but entangling alliances with none," we can rediscover our anti-war, anti-interventionist nerve. We can be as insistent as Republicans that pluralistic democracy and free markets are noble and worth emulating; but we must equally assert that they be spread by example, not force.

Jefferson can be an inspiration to our candidates, who need a better way to talk about religion and politics. Instead of mumbling about restoring faith to public life, Democrats can find the courage to say what we believe: We protect religious liberty by keeping God out of government. Our Founders knew that; there is not a single reference to God in the Constitution.
While there is much to substantively critique (and laud) about this analysis, what really sticks out is the proposition that the Democratic party must return to its Jeffersonian roots. This of course implies that the Democratic party can trace its lineage back to Jefferson. The more and more I study American history, the more I ask, is this true?

This is not an ideological point. In many respects the Democrats are the inheritors of the Jeffersonian philosophy, but coming from me that is no compliment. My argument is a more historical - and perhaps semantical one.

The Republicans are the party of Lincoln. This is a rather less controversial argument in my mind. Many would argue that the current Republican party does not reflect the philosophy of Lincoln, an argument I would vehemently disagree with, but again that is besides the point. One can easily trace the lineage of the party back to Lincoln, as one can do with the Democrats and Andrew Jackson. In other words, there is a continuous link between these men and their respective parties, a link that has basically gone unbroken since, respectively, 1828 and 1860 (or 1854, if you want to go by the year when the Republican party was established).

The same cannot be said of Jefferson and the Democratic party. The history here is a little more complicated and requires us to backtrack a little bit. Jefferson and Madison formed an opposition party to the Federalists, who were composed of Washington, Adams, and Hamilton. To grossly oversimplify, the real opponents were Jefferson and, to a lesser extent Madison, versus Hamilton and, to an even lesser extent, Adams. Jefferson's party was actually called the Republican party, though this bears no relation to the party created over half a century later. Yes, I know some of you have seen Democratic-Republican in your high school history books, but that is largely inaccurate. Perhaps an occasional reference was made to democratic-republicans, but almost all of the literature of and about the era refers to them strictly as Republicans. And, after all, Jefferson did not say, "we are all federalists, we are all democratic-republicans" at his first inaugural.

Anyway, Jefferson was elected to the presidency in 1800, followed eight years later by Madison in 1808, and then Monroe 1816. The Virginia dynasty essentially killed off the Federalist party, if more in name than in essence. Thus the so-called era of good feelings and the seeming abandonment of party politics. Of course the reality was slightly less benevolent than that. There were still significant regional rivalries, and there existed a faction which was much more nationalistic in its approach, while the other faction remained more fixed to states rights.

The election of 1824 fractured the sham of one partyism. I won't go into all the details of the election, much of which most of you probably know anyway, but the elevation of the Nationalist John Quincy Adams over the more popular Andrew Jackson was the final nail in the coffin of national cohesion, sham or no sham. Four years later Andrew Jackson would defeat Adams, and the party for which he was associated would thenceforth be known as the Democratic party. Clay, Webster and others would go their own way and form an opposition party called the Whigs, who would themselves splinter in the 1850's due to the sectional grievances stemming from slavery. Out of that muck the Republicans would rise up as the dominant second party to the Democrats.

This brief recap does not do justice to the complicated issues arising out of the 1820's, but hopefully it demonstrates the inadequacy of calling the Democrats the party of Jefferson. One could perhaps allege that Adams and his cohorts were merely disgruntled Federalists who crashed the party, so to speak, and Jackson merely reclaimed the party from the usurpers, and restored the Democrats to their Jeffersonian roots. But that argument does not satisfy me. I think the two parties that emerged in the mid 1820's were two fresh parties, distinct in many ways from the Republicans of the earlier era. I do concede that the Democrats were much closer ideologically to the Republicans than were the Whigs, and as such it is not wholly incorrect for the Democrats to claim some roots in the Jeffersonian party.

Again, much of this is a semantical argument that has no bearing on the greater substantive argument made by Michael. Of which, by the way, I will just add a few comments. There is much to commend this op-ed, but when he speaks of the "Taliban wing" of the Republican party, he comes dangerously close to discrediting everything he had written to that point. This is a childish, stupid, and absurd label that should not be used by anyone attempting serious political discussion, and merits little more note. Further, the revisionist history of Jefferson as some sort of pacific, non-interventionist President does not neatly jibe with what he actually did in office. The man who successfully guided our Nation through its first war on terrorism with the Barbary states, a war many cautioned he avoid by paying the requested tributes, does not square with the imagery of the so-called pacifist.

There are other quibbles, but I have probably quibbled enough.

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Wednesday, February 09, 2005

Ash Wednesday redefined

Found this tidbit in a Reuters story on Pope John Paul II.
A sick Pope John Paul failed for the first time in 26 years to preside at Ash Wednesday but joined world Catholics from his hospital room in a ritual where dust is rubbed on their foreheads to remind them of mortality.
How about ashes being rubbed on our foreheads to remind us of our sinfulness. Is it so hard to get stuff like that correct?

Oddly enough, the story goes on to mention the distribution of ashes later on. Heck, it mentions ashes in the next sentence. All right, it's a minor quibble, but I did find this new theology amusing.

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Tuesday, February 08, 2005


It is strange that Lent should come so early this year. It seems like it was not so long ago that I was taking down my Christmas tree, and yet a mere month or so after celebrating the birth of Christ, it is time to prepare for his suffering and death.

This is the most spiritual time of the year, and yet there's always something just a tad superficial in the way we approach it. It strikes me that in many ways Catholics treat Ash Wednesday like it is another New Year's Day, preparing resolutions that are meant to last a mere 47 days. No more chocolate, no more fatty foods, no cigarettes. Of course I am not immune from this. I hold in my hand - metaphorically, I can't type with one hand quite yet - the last alcoholic beverage that I will consume for 47 days (that's another thing - it's not 40 days. Lent is 40 days, then you have another 7 for Holy Week).

I guess in some way it is supposed to represent our sacrifice. Somehow I do not think my refraining from alcohol for 7 weeks quite compares with Christ wandering in the desert without food or water while also contending with Satan, but it's a start.

In all seriousness, it is an attempt at renewal of sorts. We promise to give up something - perhaps a vice, or just something which we rather enjoy, or both. But what does it mean? I'm not sure that it means anything, at least, I don't really think it is the point of the season.

Don't get me wrong, it's not necessarily a bad thing that we should choose to do this. I happen to think that while our "fasting" is but a small token of sacrifice, it still allows us to spiritually cleans ourselves in a sense. Of course the Church has made it easier over the years. Instead of fasting throughout Lent we only are required to do so on Ash Wednesday and Good Friday, and at that the fast is not total.

But I think we need to do more, and I have a suspicion that many are. I am often amazed at the depths of spirituality displayed by my co-religionists. When Mass is over, I leave. Others stay, preferring to spend an extra bit of time praying. I am humbled by my own relative lack of spirituality. Though I attend Mass - Latin, at that - every week, and try to go to daily Mass as often as possible, I sometimes wonder if I am truly doing everything I can to be a good person. It is of course part of the Catholic nature to feel a profound sense of guilt. But the guilt we feel is not a senseless, mindless guilt. We all fail to meet the lofty expectations of our Lord, and we all stumble along the path. Some of us just stumble a bit more.

Maybe this is our version of New Year's. I don't know about you, but often New Year's day is a time for reflection on the past year, about how life has changed. This is a time of reflection, but one of an even deeper sort. Instead of reflecting on all the missed opportunities, or all the good fortune you have come accross, it is a time for reflecting on our spirituality, and to reflect on what we can do to become better people. I suppose I ought not to use "we." Okay, it is a time where I will sit and reflect on what I can do to be person that more accurately reflects the type of person God expects me to be.

But now I have rambled long enough in this awkward public display of religiosity. Yet this day is a day of public spirituality, at least up to a point as we prominently display our sinfulness on our foreheads. At times I think it a bit ridiculous, as though we are making a big show of our Christianity. But now I understand that it is a sign that we are sinful beings. Well, that's the Catholic in me talking. We do tend the harp on the negative sometimes, maybe a bit too much. So long as we don't get bogged down in it, it isn't such a bad thing though.

Have a blessed day.

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Monday, February 07, 2005


Like most rabid right-wingers I watch Fox News. It's in my blood, I guess. After a day of repressing women, enslaving minorities, and lying about social security when all I want to do is slowly starve the elderly to death, I need to kick back and enjoy the netowrk that works so hard to brainwash its right-wing kook audience like the automatons we all are. Ignorance is bliss after all.

But when I really want the news, when I really want to turn to an unbiased, unblemished source of information, where am I to go? I suppose there's MSNBC, but then my television really can't handle the sound of Chris Mathews' voice. Call me crazy - and I know you will - but I think I actually say my tube expanding as Mathews called Zell Miller a liar or some such. So no MSNBC. Of course there's always CBS- yeah, really, just too easy. ABC? They've got a Canadian doing American news. Case closed.

No, when in doubt I always turn to CNN for the unvarnished, never biased news. In times of doubt, Mother Mary comes to rescue me, and then she turns on the television to CNN so that I can get all the latest news, and with no hint of political bias. I mean, what's the worst that they can do? It's not like they have a chief news executive accusing American troops of deliberately killing reporters.

Oh, what's that you say? They do? Surely you jest. Eason Jordan would never have gone to Davos and made such a claim. It's not like anyone substantiates this story. Surely the head honcho of a major American mainstream news network would not accuse American soldiers of deliberately killing journalists.

What I really value as an American is the independence of our media, and our academic institutions. How can one not be instilled with hope and confidence knowing that their children will one day be placed in the capable hands of brilliant minds such as Ward Churchill and Juan Cole, a man of impeccable credentials.

But getting back to the Eason Jordan story because I don't want to go too far afield here, at least we can rely on the major news networks and papers to chronicle all the major happening. Let's take a listen:

Chirp chirp. Chirp chirp. Woooooosh. Tumbleweed.

All right, enough about Andy Reid's coaching at the Super Bowl, we're talking about the media's treatment of the Eason Jordan comments. This, after all, is a huge story, and surely the major media would not gloss over the head of a major cable news network's claims that American soldiers were deliberately slaying journalists. Unless of course you thought they were biased. In which case you're just plain crazy. You probably also think George Bush legitimately won the election, or that Hillary Clinton is running for president. Silly rabbi, kicks are for trids.

Sleep well, my friends. At least we don't have a sitting Senator and former presidential candidate who claims he sold arms to the Khmer Rouge.

the earth laughs beneath my heavy feet
at the blasphemy in my old jangly walk
steeple guide me to my heart and home
the sun is out and up and down again
i know i'll make it, love can last forever
graceful swans of never topple to the earth
and you can make it last forever, you
you can make it last, forever you

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Smashing Pumkins

It dawned on me that the Smashing Pumpkins failed to make either of my top ten lists. While I was hardly trying to make a seriously authoritative listing of the greatest songs and albums ever produced, it is unfortunate that such a terrific band could be overlooked.

I started listening to the Pumpkins, as I suspect most others did, right around the time of Siamese Dreams. Of course I liked it, but it would be an overstatement to say that I really loved it. Sure, there are some great songs on there, but the entire album is merely good. But then Mellon Collie and the Infinite Sadness was released, and my view of the Pumpkins changed.

It is a tad strange that someone who mocks Metallica for changing their style so drastically should at the same time have gained an appreciation for a band that did the same thing. But the Pumkins improved by mellowing a bit. That's not to say that either Gish or Siamese Dreams are bad albums. Hardly. But it is on Mellon Collie that the band really matured and produced some of their finest music.

When the band released Adore a few years later, I have to admit I was slow to catch on, although I was constantly exposed to it thanks to a college roommate who played in the car repeatedly for about six months. (Not that I am complaining of course). But sometime after college I picked it up, and it soon became a staple in my cd player, especially as I cranked out the great American unpublished novel. Even listening to it now I feel as though I am being whisked away to a different time in my life. The album is quite simply beautiful. Inspired by the death of his mother (if I am remembering correctly), Billy Corgan wrote some of the most powerful songs ever to be compiled on a single album. It is a thoroughly depressing - and yet strangely uplifting work of art. (Astute readers might recognize my bizarre penchant for being uplifted by morbidly depressing music)

Their last album was MACHINA/The Machines of the God, a somewhat disappointing album that nonetheless has aged well. This is one thing about the Pumpkins - I didn't really love any of their albums until after a few listenings. It seems they get better with each listening. It takes a while to get used to their music, but once you do you begin to appreciate how great they are.

If I had to rate the Pumpkins, they'd certainly be in my personal top ten (save that for another day). I regret that I never got to see them in concert, but I can say that about half a dozen bands. They are missed.

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The Washington Post reports that the administration has proposed a budget that cuts non-military discretionary spending by 1%. That's not a cut in the Washington sense of the term, meaning a decrease in the amount of proposed increase. No, these would be real cuts into various programs. It's almost as if the members of the administration woke up one day and remembered that they were Republicans.

Unfortunately Congress is Congress, and though ostensibly controlled by the conservatives, no program is too meaningless or unproductive to not have at least one member willing to go to the mattresses in order to protect it. Thus it is unlikely that many of the proposed cuts will in fact be enacted. But not worry, says Republican Whip Roy Blunt of Missouri.
House Majority Whip Roy Blunt (R-Mo.) said in an interview that although many of the requests will be opposed, he believes that Congress will still cut "tens of millions of dollars and set the standard that the federal government can stop doing things that it shouldn't be doing, or is not doing well."
Wow! Tens of millions of dollars! That is so amazingly impressive and goes to show that the budget hawks are in control. Let's ignore the fact that it's even less than a drop in the bucket of what the feds spend every year - I think it just spent that much in the time it took me to write this sentence. Oh no, we're on the way to real fiscal austerity now.

To be fair, even the Bush proposals hardly make that much of a dent in the deficit, and the budget does not include several very expensive items.
The spending plan does not include future expenses of the continuing wars in Afghanistan and Iraq, nor does it include upfront transition costs of restructuring Social Security as Bush has proposed. The administration will submit a separate supplemental request largely for Afghanistan and Iraq operations in the current fiscal year, which will be reflected in the budget charts, officials said, but war costs in 2006 and beyond will not be. Nor will be the cost of Bush's Social Security plan, which would begin in 2009 and result in $754 billion in additional debt over its first five years.

Those omissions provide ammunition to Democrats who dispute Bush's math. "The Administration's claim that it will cut the deficit in half by 2009 lacks credibility," said a report released last week by House Budget Committee Democrats. When the omitted items are included, along with the impact of making Bush's first-term tax cuts permanent, the report estimated that the government would rack up $6.1 trillion in deficit spending over the next decade.
Of course Congressional Democrats mocking the administration over spending is a bit like Peyton Manning criticizing Donavan McNabb's play against the Patriots. Still, this news hardly signals that it is time for fiscal conservatives to start popping the champagne. We're on the right track, but we've got a lot farther to go if we want to get serious about slashing the budget and reducing the grip of the federal leviathan.

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Sunday, February 06, 2005

Super Bowl pick

As the game approaches, it is time for my Super-pick: Pats 24, Eagles 21. The Eagles keep it close as Terrell Owens shocks the world and has a miraculously good game despite playing on one leg. But Owens' heroics won't be enough to beat the Pats. Tom Brady has too much experience, and I have an inkling that Deion Branch is due for a huge game.

Update: Must have had some server problems as this post was slow to showup.

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