Owens Rhetoric

2008-04-06T16:48:00.000-04:00

We up and moved...

click here, and we'll see you at the new digs.

2008-04-04T10:21:00.000-04:00

Race in America

Years since Martin Luther King’s assassination: 40
Days since Barack Obama’s speech on race in America: 17

The Wall Street Journal ran an editorial column this morning by Juan Williams (of NPR News fame). Mr. Williams argues that Senator Obama has broken with Dr. King’s spirit and message:

"So far, Mr. Obama has been content to let black people have their vision of him while white people hold to a separate, segregated reality. . . . [I]t is a key break from the King tradition to sell different messages to different audiences based on race, and to fail to challenge racial divisions in the nation."

–Juan Williams, "Obama and King," The Wall Street Journal, April 4, 2008, A13.

Mr. Williams’s essential point is that Sen. Obama has sold his campaign to blacks as "the fruit of the struggles of King and others," but when he talks to whites, "race is coincidental, not central, to his political identity." Dr. King, by contrast, "spoke about black people as American patriots who believed in the democratic ideals of the country, in nonviolence and the Judeo-Christian ethic . . . . [and he] challenged white America to do the same, to live up to their ideals and create racial unity."

Mr. Williams does grudgingly admit, however, that Sen. Obama "is a politician and, unlike King, his goal is winning votes, not changing hearts." And sure, that fact certainly accounts for some differences in approach. But overall, I think the truth of Sen. Obama’s political image is more nuanced than Mr. Williams asserts. Sen. Obama’s campaign is a triumph in our country’s racial history, precisely because so many voters are able to see Sen. Obama’s racial heritage as incidental to his politics. While I am not African-American, I venture to guess that the very universality of Sen. Obama’s appeal is precisely what thrills individuals of that heritage — because it is an unmistakeable indication that racism is no longer a controlling factor in the minds of the country's voters (well, at least not a majority of them).

I couldn’t agree more that America needs a transcending of racial divides — that is, a rising above. I just don’t think Sen. Obama is doing such a bad job of that as Mr. Williams claims.

2008-03-31T17:17:00.000-04:00

huh?

The main paper back home, Raleigh's News and Observer, usually includes a sports column penned by Caulton Tudor. Because he's not biased towards UNC, it is difficult for me to entirely appreciate Tudor's columns.

Tudor's presence on the sports page is as the sort-of wise man of the block; reading him is like reading George Will. This is fine when he's writing positively about the heels, but is incomprehensible when otherwise...why would the wise man give grief to Carolina?

In any event, after talking about the interestingness of Roy Williams facing off against Kansas this weekend, he ends the column with the claim, I think, that Davidson's go in the tourney was the premier story this year. I don't follow.

The real story of the 2008 NCAA Tournament ended Sunday when the Jayhawks defeated Davidson, allowing all four regional No. 1 seeds to reach a Final Four for the first time.
Williams, Self, Memphis coach John Calipari and UCLA's Ben Howland for the next few days will extensively address the merits of their teams. But regardless of which school is still standing next Monday, the biggest winner of this tournament will be the little team from the Charlotte suburbs.

Maybe I missed something; if not, this is the kind of skipping stone logic that wise elder columnists like Tudor, and Will, are prone to employ I suppose...leaving us mortals scratching the head.

2008-03-26T20:08:00.004-04:00

On speaking

It is too bad the Sophists are not around these days to offer insights into persuasive public speaking. One wonders if HBOified John Adams will fling his main man Cicero, with all his thoughts on rhetoric, into the public imagination. Some sorting out of rhetoric is in order this campaign season.

To be sure, some variations of talk versus action, youth versus experience, idealism versus realism, and so and so have been the contests of, well, maybe most political contests. But the attention to speech making—to Barack Obama’s speechmaking, by Hillary Clinton’s campaign—is a unique centerpiece this time around.

From the bits and pieces of talking points I hear, Obama’s opponents believe he is particularly gifted in the fifth of the old canons in rhetoric, actio; this being the final delivery of a speech. Without pulling up quotes, let’s just take agreed notice that we’ve plenty heard the dismissive: “he gives a good speech.” The criticism doesn’t really matter much unless you presume that abilities come at the detriment of other abilities. Such a presumption could mean Obama fails in other aspects of rhetoric, namely the inventio of a speech—coming up with an idea. Maybe the “he gives a good speech” criticism is meant to say Obama has no substance, no ideas, in those good speeches.

The other side to the criticisim is that, while Obama pulls off great speeches, a President is not the speechmaker in chief, but many more important things, like being the most experienced in chief. Such is the message conveyed in this, from Clinton’s speeches:

It's time we move from good words to good works, from sound bites to sound solutions … We need to make a choice between speeches and solutions.

Amazing that a pitch against sound bites uses a triple play of political punnery to create a sound bite.

The reason this line is not working against Obama is at least two-fold.

First, there is no good argument being presented that Obama is unable to attain “solutions,” which I take to mean initiatives within Executive Branch agencies, Congressional votes for Democratic policy, retaining allies, and promoting U.S. interests abroad like not letting crazy states or organizations do US citizens real harm.

Simply saying Obama is unable to do these things doesn’t do the trick—the lack of a compelling argument as to why he can’t explains how a people to preoccupied with experience when voting up John Kerry over more charismatic speakers four years ago seem happy with Obama.

The reason Obama’s speeches are compelling to people does not rest on his eloquent delivery nor the starry eyes of his supporters. The fact is, as is the case with a lot of speeches that achieve delighted receptions, people like what the speaker says. Obama stuffs substance into his speeches that suggests a respect for the intelligence of his audience. The success of his speech on race at the Constitution Center in Philadelphia did not derive from a smooth presentation, but from the fact that he was intellectually candid. Refreshing, indeed, to hear a pivot from talking points.

Delivery does count for something as well—Obama’s delivery also achieves the sense of treating the audience as thinking beings that don’t go to bed each night repeating talking points to themselves. That, I increasingly think, is the real reason his speeches help him, and why attacking them hurts his opponents. People appreciate Obama precisely because they feel they are not pawns falling for one-liners.

So, fashioning one-liners to attack Obama’s candidacy is not the best solution to a second-place campaign.

2008-03-01T09:45:00.001-05:00

Let the Market Determine?

Seems a long time since we've debated the notion of the market on here...and even when we did, the 'market' debate was probably indirectly related to some other issue. If memory serves, the issue tends to be whether government imperatives or the market should dictate certain trends (like environmental regulation, say). The market, and for whatever reason it tended to be the GOPers in the room arguing this, is the great thing on which we ought to rely...to set policy, show what people will and won't accept, and so on. Should we require reduced air emissions? ban smoking in public restaurants? mandate health care? Opponents of government intervention generally cite the market as a better policy setter than agency staff.

Oddly enough, this morning the whole whether-or-not-the-market-adequately-reflects-reality debate came back to me, after all these years, while reading a slate article on the blu-ray vs hd-dvd war. I am re-convinced that theories relying on the market are rubbish!

This passage sums up why:

Even worse, the Pittsburgh Post-Gazette and BusinessWeek reported that Sony, perhaps having learned its lesson from the Betamax debacle, paid Warner Bros. between $400 million and $500 million to go with Blu-ray. Sony hadn't won because it offered the HD-buying public any other tangible advantage. It took down Toshiba because it knew whom to pay off.

Reckon I'll have to dig up the actual discussions we've had that go back to market theory. Or maybe I'll just read up on my Posner. In any event - the point here is that the market is hardly, in reality, a place of rational decision-making. Indeed, that's pretty much agreed upon all around...moreover, though, examples like the above point to the bigger problem of market-reliance: the market is rigged. It's a false display.

2008-02-18T08:00:00.000-05:00

Seems to me that Frank Rich best describes why Obama stands a better chance than Clinton against McCain...not on policy, but on the other major issue on electioneering: appearance/persona/presence/whatever.

A Northeast Temperament?

2008-02-06T09:11:00.001-05:00

For a moment last night, I wondered if there is (or a popular perception of) such thing as a sentiment in the northeast towards the thing that words of various motivation imply: establishment, elite, old money, snobbery, trusted, tested, old, known, institutionalized.

Top of the head, I can only remember defending Kerry against the "liberal snob" line; but it seems some of this was attached to his being a northeasterner.

Last night, I must have seen the New York and Jersey returns while also hearing some interviewee talking about Obama being a newcomer, and feeling more comfortable with Clinton. Indulging some stereotypography, I thought only predisposed snobbery can really trigger that approach. (After getting through that, though, I wondered if the GOP would (why wonder…yes) tag Clinton as a northeast snob, or whatever the thing is that is the object of the above words. And, further, would the Democrats again stick their collective heads up their butt? Whatever the thing is with this whole liberal/northeast elitism tag, I do know it is a favorite of the GOP in election season. And it is something Dems continually forget to ponder when contemplating electability. Kerry and Dukakis ought serve as useful reminders, but ah well.)

My first stab at finding some evidence at the northeastern thing, a Google search for "northeast elite," brings up a cheerleading squad called the Northeast Elite, regional, state & 32 X National Champions! Second link is to the Northeast Elite wrestling squad. So I really have no idea (1) if there is actually a stereotype on northeastern elitism/establishment/etc; and (2) if there is some historic basis (I imagine that basis would be something along the lines of our country's first institutions, establishments, and aristocracy were there.

2008-01-30T18:21:00.000-05:00

A good conversation starter from Froomkin.

In today's Globe, Savage writes: "President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq, that Congress passed as part of a new defense bill.

"Bush made the assertion in a signing statement that he issued late Monday after signing the National Defense Authorization Act for 2008. In the signing statement, Bush asserted that four sections of the bill unconstitutionally infringe on his powers, and so the executive branch is not bound to obey them."

2007-12-16T14:06:00.000-05:00

Second Fiddle

The Supreme Court has not looked squarely in the face of our second amendment since 1939. Back then, the Court ruled that it was OK for the National Firearms Act to ban the interstate transport of sawed-off shotguns. The defendants argued the law was unconstitutional, pointing to...

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

But the Court, in US v Miller, didn't agree that the amendment gave these folks an unfettered ability to carry around sawed-off shotguns. The right of gun possession had to have a "reasonable relationship to the preservation or efficiency of a well regulated militia." The Court suggested that, to be within the scope of the second amendment, the weapon would have to be part of the ordinary military equipment.

With one 20th century visit to the amendment, we will this term get our first second amendment visit of the 21st century. The Court will decide if the DC Circuit was right to rule that the amendment deems DC's handgun ban unconstitutional.

Maybe we can talk about how the case ought to come out on this web space. But let's begin on a lighter note.

Adam Freedman wrote the joke of the day in his column in today's Times. His piece is on the grammar of the amendment, namely its orgy of commas. Quickly, his point is that comma use in the late 18th century was willy nilly and that it would a folly to stake much interpretive weight upon the commas. In the end, it's best to take them out altogether and see what you get.

In reading his point, I thought this was a hilarious nod to the whole gun/2nd amendment debate...

"The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas)."

2007-11-05T23:42:00.000-05:00

Nutritious

I got to thinking today about nutrition. I reckon that nutrition, as I am thinking of it, is the process of putting things into our bellies—and thus permeating our cells, organs, and inside-eco-systems—with stuff from outside. Along with the (what I am positive will forever remain correct) advice to eat a lot of different colors as much as possible, I figured that our analysis of eating is destined to be based upon a balance (like colors) of four varyingly important themes: our humanity, our gender, our great grandparents, and our selves.

I have two unoriginal hunches that, together, might could be a book that I’m not going to write (feel free to mention me in the dedication, budding nutrition PhD): one, we need to pay attention to individual genetics, and development, when considering dietary needs; two, those elements (genes and individual) need to be considered fairly equally with the more universal elements of species and gender.

There are things we should or should not eat, and ways we should prepare or not prepare those things. Maybe eat raw shark, maybe eat cooked shark. Maybe eat shark that has been buried for a year to rot beneath sand.

I got to thinking that we probably have positive or negative reactions to foods based on what we’re used to eating and what our family tree was used to eating. Clearly our human species has some preferred intake to providing energy and functionality. Our gender-based hormones have their own martian and venetian desires.

In my armchair nutritionist world, though, I have heard less about my body’s reaction to sushi based on my English/Scotch/Irish heritage. I have heard similarly little about that reaction based upon my eager consumption over the past 10 years of deliciously red tuna and steak…in other words, have I gotten my body adjusted to raw meat?

My little brother went to Russia once and had no beef for a summer. A burger would have made him ralph had he welcomed himself back with angus. Our individual habits and actions inform our appetites...Discovery Network teaches me this with the lizard penis eating, get over it it’s just your mind telling you it’s gross, travel to a new culture, shows. Beyond psychology, my brother’s post-Russia tummy cautions confirm something more gastronomical to our individual situations. Where we are, and who we are, means something when we bite.

My family has long enjoyed slow smoked pig. We’re from eastern North Carolina, and southern Virginia. My early American kin ate pigs, usually preserved to last a good spell. I bet that my genes somehow anticipate that pork, and use it to their advantage. I have absolutely no evidence or scientific reason for so betting…but it just makes sense.

Anyway—the family (and I mean deep-down, ancestor layers that give our genes meaning), and our personal places and times probably go a long way in telling our bodies how to react to what we eat. I am thinking, though, that those factors, along with our human and gender needs, have different weights in each person.

Like, my body might react especially to the groove I’ve been in lately. My friend’s body might be more geared to long-term genetic needs. Thus, a diet based on Paleolithic Man might be good for so and so with a nutritious system that reacts to those two factors (ancestry and gender). My hunch, though, is that we can never really be sure which of those four general factors (species, gender, ancestry/genetics, and individual) are most relevant to our bodies at a given time. Perhaps my individual body-eco-system can overcome its anglo-saxon genetic disposition and adapt well to a sushi-heavy intake. Further, perhaps that adaption is because of changes that occur in my body during my life, or perhaps it is because of a larger , human species reaction to sushi. I don’t know. The hunch is simply that these different factors all have some say toward whether our cells smile or frown when they meet the newcomers we bring to the party.

2007-10-25T11:11:00.000-04:00

Side Note to our Polygyny Debate:

The Economist has an article this week about the inter-relation between lifespan and monogamy. Apparently there is new scientific research to suggest that male members of monogamous species outlive their male counterparts from polygynous species. Adds an interesting dimension to our earlier debate about the causes behind human societies' universal condemnation of polygamy! Here are excerpts:

In the cause of equal rights, feminists have had much to complain about. But one striking piece of inequality has been conveniently overlooked: lifespan. In this area, women have the upper hand. All round the world, they live longer than men. Why they should do so is not immediately obvious. But the same is true in many other species. From lions to antelope and from sea lions to deer, males, for some reason, simply can't go the distance.

One theory is that males must compete for female attention. That means evolution is busy selecting for antlers, aggression and alloy wheels in males, at the expense of longevity. Females are not subject to such pressures. If this theory is correct, the effect will be especially noticeable in those species where males compete for the attention of lots of females. Conversely, it will be reduced or absent where they do not.

To test that idea, Tim Clutton-Brock of Cambridge University and Kavita Isvaran of the Indian Institute of Science in Bengalooru decided to compare monogamous and polygynous species (in the latter, a male monopolises a number of females).

In 16 of the 19 polygynous species in their sample, males of all ages were much more likely to die during any given period than were females. Furthermore, the older they got, the bigger the mortality gap became. In other words, they aged faster. Males from monogamous species did not show these patterns.

Most students of ageing agree that an animal's maximum lifespan is set by how long it can reasonably expect to escape predation, disease, accident and damaging aggression by others of its kind. If it will be killed quickly anyway, there is not much reason for evolution to divert scarce resources into keeping the machine in tip-top condition. Those resources should, instead, be devoted to reproduction. And the more threatening the outside world is, the shorter the maximum lifespan should be.

There is no reason why that logic should not work between the sexes as well as between species. And this is what Dr Clutton-Brock and Dr Isvaran seem to have found. The test is to identify a species that has made its environment so safe that most of its members die of old age, and see if the difference continues to exist. Fortunately, there is such a species: man.

Dr Clutton-Brock reckons that the sex difference in both human rates of ageing and in the usual age of death is an indicator that polygyny was the rule in humanity's evolutionary past—as it still is, in some places. That may not please some feminists, but it could be the price women have paid for outliving their menfolk.

--excerpted from "Live fast, love hard, die young," The Economist, Oct 18th 2007 ed.

2007-10-22T21:40:00.000-04:00

More J. RBG Bits from 10/19/07

-On whether the government should regulate speech: The best way to fight hate speech is with good speech -- not with repressing freedom of expression.

-On squabbles between the Court and Congress: We shouldn't worry about them too much -- they are ultimately healthy, and they are as old as the Republic! The venerable case of Marbury v. Madison is a perfect example: it was argued in 1801 but wasn't decided until 1803. Why? Because Congress was angry at the Court and would not appropriate enough money to allow the Court to sit in the year 1802. The two branches have been at loggerheads since the very beginning.

-On Minnesota v. White, a case invalidating limits on the content of speech by judicial candidates in a contested election, which drew a strong Ginsburg dissent: RBG called this a "Gertrude Stein" case. G. Stein famously said, "A rose is a rose is a rose." RBG thinks the majority in White believed an election is an election is an election, and that's just not the case. Judicial elections are a special animal and the state legislature has a right to treat them that way. The Justice noted, however, that although she thinks White is "quite wrong," it is also quite narrow if read properly. In short, she said, "It is a wrong decision but it can be contained."

Lily's overall impressions of Justice Ginsburg (or her public persona, anyway): She has a reputation for being austere and/or severe, but I think that is just an overblown reaction to her natural reserve. She was serene, unhurried, and seemed unflappable. She was above all dignified. When someone asked her a question, she generally let the silence stretch for several seconds before answering; but then she would come out with an articulate, well-organized, and complex response. It was this practice, as much as anything, that I found personally educational -- so often I find myself replying immediately to a question with a torrent of disorganized thoughts! I would like to be less eager to please in my responses, and better organized. For this concept alone, the conference was worth attending.

2007-10-18T22:33:00.000-04:00

“Bush v. Gore Was In A Class Of One” – An Evening with Justice Ginsburg

This evening I had the opportunity to attend a dinner reception featuring Justice Ruth Bader Ginsburg. During the course of a conversation moderated by Professor Suzanne Reynolds from Wake Forest Law School -- which included time for Q&A with the audience -- the Justice spoke with remarkable frankness about her life at the Court. Here are some of her most interesting points:

-- On the shrinking docket of the Supreme Court (i.e. the Court is consenting to hear fewer and fewer cases each year): This is a good development. Having extra time to hone the opinions gives the Justices more time to achieve consensus on the cases they do hear. We can notice that the Court is not issuing the same number of confusingly split opinions that they once were, because they are taking more time to craft compromise language that enables everyone to get on board. The end result is less dissenting and concurring, and fewer instances where justices will write things like, I agree with Parts 1, 5, and 6 of the majority opinion but write separately to dissent as to part 2 and concur as to part 4.

-- On the Supreme Court’s cert pool (i.e. why they choose to hear the cases they do): The Supreme Court has made a decision that it is not an error correction court. There are plenty of lower courts doing a fine job taking care of the everyday administration of justice in this country, and we do not need yet another layer of correction. Instead, the Court has chosen to prioritize conflict resolution. The justices think it is important to have the law be uniform across the country. So they are looking to grant certiorari on cases where the federal circuit courts have split with each other or split with the state courts.

-- On Bush v. Gore and the politicizing of the Court: Bush v. Gore was completely unique – in a class of one, as she put it. It was an exercise in endurance because of its short time frame – cert was granted one day, briefs were due the next day, the following day was oral arguments, and the decision came out the day after that. It is a telling fact that, in the years since BvG, the Court has never once cited it. It is essentially limited to that particular situation and those particular facts. She thinks the Justices will not allow politics to be the basis of their decisions under normal circumstances. BvG was a special case. (Is this a tacit admission that it WAS a politically motivated decision? Lily couldn’t tell!)

-- On Hillary Clinton being the first woman to mount a serious campaign for President: "Brava!"

-- On Justice Scalia: He is one of her closest friends on the Court. The Ginsburg and Scalia families have a tradition of spending New Years together. The two Justices share a love of opera. She described J. Scalia as a “wonderful raconteur of stories and a great teller of jokes.”

--When asked what is the single biggest threat to the Rule of Law in our country, Justice Ginsburg replied immediately that it is fear -- fear engendered by terrorism and the tragedies of 9/11. She said that if we allow this fear to condone unwarranted intrusions on civil liberties and (as she put it) "encourage the government to spy on us," we will fundamentally change who we are as Americans and our enemies will have completely triumphed.

I am scheduled to attend a CLE featuring Justice RBG tomorrow, along with many female judges and justices from across the country. I’ll attempt to follow up here on OR with more details about what they have to say! Stay tuned!

2007-10-10T20:36:00.000-04:00

Lunch on the rocks

2007-10-01T18:09:00.000-04:00

Disinterestedness, of the good sort

Stanley Fish writes for today's Times. The column rightly, to my thinking, notes that the head-administrator at an academic institution ought to restrain from taking political-like stances:

The obligation of a senior administrator is to conduct himself or herself in such a way as always to bring honor and credit to the institution he or she serves. Just what this general imperative requires will vary with the particular situations an administrator encounters, but at the very least we could say that an administrator who brings attention of an unwelcome kind to a university is probably not focusing on the job. He or she may be doing some other job – speaking truth to power, standing up for free speech, protesting against various forms of injustice – and those jobs may be well worth doing, but they belong to someone else.

I agree; though I got the hunch that Mr. Fish sounds more controversial than the point of his lines.

After reading the piece, isn't he arguing for disinterestedness? Such behavior, or lack thereof I reckon, is the hallmark of the academic pursuit; and seems to be the point of an academic administrator's job--as Fish would say.

Any event- the disinterestedness to which we aspire to is that condition wherein we can think of a subject, listen to and understand the inputs of information (arguments from different perspectives), and make sound conclusions unaffected by prior-held convictions. That disinterestedness (free from the interest of bias) is the academic standard from which Columbia's president fell recently (in remarks preceding Ahmadinejad's talk.

2007-09-26T17:03:00.000-04:00

** NB: Despite an appallingly long hiatus (which was entirely my own fault), Andrew has kindly let me resume my occasional guest posts on Owens Rhetoric. Thanks, APO! ~ A grateful Lily

Polygamy Trials

As all you OR news junkies have doubtless heard, yesterday a Utah jury convicted the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints of two counts of being an accomplice to rape. The defendant, Warren Jeffs, has been leading his fringe Mormon sect along the same lines for many years, but it has taken a long time to actually prosecute him for anything. For those of you who are interested in further reading on this topic, I’d encourage you to check out Under the Banner of Heaven by Jon Krakauer. This non-fiction page turner includes a detailed discussion of Jeffs, his life story, and his belief system, and puts him in the context of the larger fundamentalist LDS movement.

I’ve had some interesting discussions recently about polygamy. Especially fascinating to me are the parallels between discussions over polygamy and same-sex marriage. The two topics share several common nexuses,* including questions over the impact they have (or don’t have) on heterosexual marriage/family structure and the potential abuses inherent in these practices when minors are involved.

Here’s one question I haven’t figured out yet: speaking in the context of consensual adult relationships only, is there any internally consistent way to reject polygamy and condone same-sex marriage? I ask because several states now allow same-sex marriage or civil unions, and some polls show Americans are growing increasingly tolerant of it. But I don’t know of too many polls stating that Americans are growing increasingly tolerant of polygamy / polygyny / polyandry, and certainly no state has even come close to allowing them. This seems contradictory to me. If the objections to same-sex marriage bans are all about the government respecting individuals’ dignity and privacy by staying out of private relationships between consenting adults, then why isn’t there a mainstream national debate about multiple marriage rights? The Anglican Communion, for example, sure isn’t being torn apart by disagreements over polygamous clergy.

Seems to me that we should either condone both multiple marriage and homosexual marriage, or reject both. I can't figure out any way that I can honestly support the latter without also supporting the former. What’s the difference?

*Nexuses? Nexes? Nexi? Ack!

2007-09-19T21:10:00.000-04:00

Slide Hampton conducts the Dizzy Gillespie All Star Band to close out this years Duke Ellington Jazz Fesival in DC. It's a great joy in life to walk through a crisp Sunday, plop down under Washington's Memorial, and listen to Slide, James Moody, Roy Hargrove, and Jimmy Heath. Our decided highlight was hearing Clark Terry and Mr. Moody do some "mumbling."

2007-09-18T19:03:00.000-04:00

Still not representing

Well, three Senators couldn't come around to the American cause of representation.

GOP Minority leader McConnell makes the odd point:

"I opposed this bill because it is clearly and unambiguously unconstitutional," McConnell said in a statement. "If the residents of the District are to get a member for themselves, they have a remedy: amend the Constitution."

How, I wonder, are "they" to act on that remedy when they have no representative to make said motion to amend the law of our land.

The Constitutional argument is bogus. Senators Hatch and Lieberman do a decent job addressing this in their recent editorial in the Post.

2007-08-24T17:08:00.000-04:00

The Dred Taney, II

Along with being the sibling with Plessy in the family of hated cases, Dred Scott is an important case in both U.S. political/policy history and judicial history (i.e., precedent). As discussed briefly below (comment if more on this is suitable), Dred Scott is about the Court's jurisdiction (in this case, that Mr. Scott was not a "citizen" within the meaning of the Constitution's Article III, Section 2. So the Court couldn't hear his case.

The Court's decision offers important language on the meaning of citizenship under the Constitution. That verbiage was so repulsive (eventually) to our elected officials, and so approved by others, that the case plays a lead role in the lead up to civil war, and, more importantly to contemporary jurisprudence, the case should directly inform our understanding of the 13th and 14th amendments. Courts ought to cite the case (negatively, to be sure) frequently whilst expounding upon rulings based upon the 14th amendment.

But the case doesn't so inform, and courts don't so cite.

Why not? That's a great question posed by a panelist at a discussion hosted at Philadelphia's Constitution Center. The podcast is available here, along with a wonderful series of similar lectures.

The speaker noted that we study Marbury and McCulloch intensely in our Constitutional Law classes, while we briefly mention, if that, Dred Scott. The 14th amendment is discussed in classes and in cases as if Dred Scott didn't exist.

I'll have to think about this point. It might be analogous to a situation wherein a reader attempts to understand Brown v. Board without understanding Plessy.

A larger discussion might take us to the role of history in decisions and in policy responses. Should, for instance, a case that brings about legislative change, ought to be read into the interpretation of that legislation? If a law passed after, say, Kelo, is challenged in court, do we read Kelo in the same endeavor as reading legislative history?

The Dred Justice Taney

2007-08-23T00:31:00.001-04:00

A hundred-fifty years ago, a couple days ago, the U.S. Supreme Court decided, for the second time in the Court's history, that the Constitution barred a Congressional Act. The first time was in Marbury v. Madison.

In Marbury, the Court struck down the Judiciary Act, passed by Congress in 1789. Some background: Normally, we hear about the Supreme Court in its role as the final appelate court after a case goes through all the rungs of lower federal courts (or a case with federal law issues is ruled upon by a state's highest court). The Constitution also allows a person to file a case directly to the Supreme Court in certain circumstances. This original jurisdiction exists in "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party." A few years after the Country got rolling, Congress appeared* to extend that original jurisdiction to cases where the plaintiff wanted the Court to issue writs of mandamus (i.e., tell another government entity to do something).

The Court, in Marbury, decided that Congress was not allowed to extend the scope of the Supreme Court's original jurisdiction. Thus the plaintiff, who had gone straight to the Court rather than landing there on appeal, had gone to the wrong court…said the Court.

In the midst of so ruling, the Court noted that Acts of Congress that conflict with the Constitution are not, in fact, law. Judges, the Court also noted, swear an oath to uphold the Constitution (forgetting to note, apparently, that so do Presidents, Governors, Congressional members, lawyers, and various others).

It would be more than fifty years later, and about 150 years ago, on August 20, 1857, that the Court again decided a Congressional Act violated the Constitution. While deciding that Dred Scott, who had sued for the freedom that should have been his according to federal law, was not, in the eyes of the federal government, a person, the Surpreme Court's Dred Scott v. Sandford decision overrulled Congress' law that would have supported Scott's freedom.

To make the case that, because he had been in free-state territory and had thus, under state and federal law, become free, Mr. Scott needed to be able to, well, make the case. The Constitution allows federal courts to hear cases between citizens of different states, so Mr. Scott needed the Court to consider him a citizen. Or, as Chief Justice Taney put it:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

For the Court to have jurisdiction to hear the case, Mr. Scott needed to be a "citizen." To answer the question, the Chief Justice opined on the nature of Mr. Scott's eligibility of person-hood:

The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether [persons of African descent] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

By the way, pre-echoing a theme in jurisprudence common today, the Chief Justice cleansed his hands and noted that policy (good or bad) is made outside the court:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Chief Justice Taney proceeds to discuss several reasons why the framers of the Constitution would not have considered Mr. Scott a citizen; thus, the Constitution bars Mr. Scott being a citizen.

Shall we call Taney's jurisprudential approach the original original intent?

After establishing Mr. Scott's (and any African American's) non-person-hood, The Chief Justice reasoned that the 1820 Missouri Comprimise, which prohibited slavery in non-state territory north of a specified latitudinal line, violated the Constitution because it unreasonably deprived citizens of property (slaves).

Thus, the second instance of the Court's use of the 'judicial review' stick to Congress' hand. With that history said, I have a few things on the mind. Taney's reasoning…is it bad, or just mean? Is there a better word than judicial review (or activism) to describe the Court's role as balancing Constitution vs Congressional Acts? What did the dissent say in Dred Scott?

To be continued, I hope…

* Akhil Amar makes the convincing point, in America's Constitution, that Marbury is wrongly decided because Justice Marshall misread the Judiciary Act (read page232-233).

2007-08-22T18:38:00.000-04:00

If you missed the NY Times op-ed penned by 7 officers at the end of their tours in Iraq, let Fred Kaplan's Slate article catch you up. The gravamen of the piece is that their experience of the insurgency/counterinsurgency causes the officers to be "skeptical of recent press coverage portraying the conflict as increasingly manageable and [to] feel it has neglected the mounting civil, political and social unrest [they] see every day."

The piece continues to detail the causes of that skepticism.

Kaplan asks the interesting question: where are these officers now? How has the article affected their return home and job security?

2007-08-22T18:34:00.000-04:00

over the bay

2007-04-14T17:53:00.000-04:00

Summarizing Massachusetts v. EPA

The following is a summary of what the Supreme Court decided in Massachusetts v. EPA. The lawsuit arose out of EPA’s decision to deny a rulemaking petition asking the agency to regulate greenhouse gases pursuant to the agency’s authority under the Clean Air Act. The questions that the Court considered and answered in its majority opinion deal with greenhouse gases only tangentially; the debate in the Court centered on legal questions about lawsuits and government agency powers. The issues that the Court decided upon addressed: (1) whether the plaintiffs in the case should have been allowed to sue and (2) whether EPA properly denied the petition for rulemaking. While summarizing the Court’s decision on these questions, we will need to cover a few legal concepts that were central to the Court’s thinking—we will cross those bridges as they come along.

How the case came about

Federal agencies create regulations primarily because Congress directs them to through statutes. The agencies are also bound by those statutes—they cannot overreach and regulate more than Congress has directed. Thus, agencies are the government entities that implement laws. People often challenge agencies in court for regulating beyond the authority granted in a statute. Conversely, agencies can be challenged for not doing enough under a given statute. That is what happened here.

In 1999, 19 private organizations sent a petition to EPA telling the agency that it should regulate greenhouse gases according to the Clean Air Act. EPA published a note in the Federal Register asking the public to comment on the issues raised in the petition. The White House also asked the National Research Council to identify where there were uncertainties in climate change science. In 2003, EPA denied the rulemaking petition saying that it had no authority to regulate greenhouse gases under the Clean Air Act. To boot, EPA gave several policy reasons that, if it had authority, it would still decline to regulate.

The petitioners challenged EPA’s decision at the D.C. Court of Appeals (the Clean Air Act allows exactly such challenges that skip the trial court level because the challenge is about EPA’s government power rather than about facts that would be determined in a trial). Joining in the petitioner’s cause were several state and local governments, including Massachusetts.

The Appeals court ruled against the petitioners. One judge jumped straight to the issue and decided that EPA did nothing wrong in deciding not to regulate greenhouse gases for policy reasons. Another judge decided against the petitioners on procedural grounds, writing that the petitioners should not have been able to sue EPA in the first place. With two out of three judges deciding against them, the petitioners lost. They appealed and the Supreme Court accepted the case.

The Court considered two major issues to decide the case; one issue focuses on the petitioners, the other on EPA. We will first look into why the court spent 15 pages discussing whether petitioners could rightfully sue—an issue called “standing.” Then, we will consider the Court’s discussion that focuses on whether EPA acted properly.

Whether Massachusetts can sue EPA

The Constitution limits federal courts to hearing “cases” and “controversies;” which is to say, courts do no simply opine on any issue they want. There must be a plaintiff that suffers some actual injury for which we can (or can’t, as the case decides) ascribe causation to a defendant that, upon such finding of blame, can redress the injury. The elements bind courts to the role of deciding precise disagreements rather than creating law out of whole cloth.

The legal term of art for the above elements is “standing.” A plaintiff must have standing (i.e.., must have an injury and must identify the person that can be blamed for and can redress the injury). These elements are important because four out of nine Justices wanted to dismiss the case believing that the petitioners did not satisfy the standing requirement.

The Court discussed only Massachusetts’ standing because, for the purposes of this case, only one petitioner needed to show standing and the lawyers picked Massachusetts. In addressing whether there is an injury (the first of the standing elements), the Court first considered Massachusetts as a state. The Court emphasized the “special position and interest” of Massachusetts.

A state’s interest extends to its capacity as a sovereign entity—that, as the Court quotes Justice Holmes, it can control “whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” This role of the state as a governing entity is important because the federal government has assumed the prerogative of assuring clean air. Because this prerogative has shifted from state to federal jurisdiction, the state enjoys a “special solicitude” in the Court’s standing analysis.

Many commentators have written about, and most of Chief Justice Roberts’ dissent complains about, the Court creating a new, relaxed standard for allowing states to have standing. However, rather than affording the state a relaxed ability to sue, the Court’s discussion correctly recognizes the context in which it decides whether there is standing (injury and a defendant we can blame and that can redress the injury).

Indeed, the discussion of Massachusetts’ injury is straightforward: the state, in its capacity as a landowner, is losing coastal lands (beyond normal erosion) due to rising sea levels caused by global warming. The state also asserted impaired of air quality. The argument against this first element of standing is that the injury is not particular to Massachusetts. In response, the Court noted that the widely shared nature of the injury does not diminish Massachusetts’ injury.

Having established an injury, the Petitioners needed to show that they brought in the person that caused the injury and can redress the injury. Remember, this case is about EPA’s role in regulating the greenhouse gases that are injuring Massachusetts. No party in the case disputed that greenhouse gas emissions cause global warming and contribute to the claimed injuries. EPA’s argument, rather, focused on the inadequacy of redressability in the case—in other words, EPA said it could not mitigate global climate change, especially in light of developing nations like India and China contributing to climate change.

The Court rejected that argument. Government commonly works one step at a time. For standing considerations, the defendant’s inability to redress fully the plaintiff’s injury does not destroy the plaintiff’s ability nevertheless to sue the defendant to spur some relief. As the Petitioners argued, the U.S. transportation sector contributed 1.7 billion metrics tons of carbon dioxide in 1999. If the EPA removed some portion of that contribution, the harm caused by global warming will be reduced.

Massachusetts, having shown a concrete injury and having brought into to court the entity causing that injury (by not regulating) and that can redress the injury, has standing. The case can move on; thus, we turn to the Court’s discussion of whether EPA acted unlawfully in denying the petition for rulemaking.

EPA’s denial of the petition and the agency’s discretion

As mentioned above, agencies are the government entities that implement Congress’ laws. But, laws are not always clear, and agencies often must exercise some interpretation while transforming Congress’ laws into the rules that actually affect people and industry.

An agency is often challenged in courts by litigants claiming the agency did something wrong while translating a law to a regulation. Courts are familiar with this frequent fight and generally favor affording agencies some discretion in interpreting statues. However, courts need some way to determine whether an agency deserves this discretion (because the agency consists of experts) or whether the agency has gone beyond the realm of reason while turning statutes into rules. The test that courts use when deciding this question was formulated in a 1984 case called Chevron v. NRDC, and is commonly referred to as “Chevron deference.”

Under Chevron deference, if the statute that the agency interprets is ambiguous (in other words, if there is room for interpretation), the court will defer to the agency’s interpretation. However, if that interpretation is unreasonable, the court will analyze the agency’s action (or inaction) with no deference to the agency. So there are two prongs: (1) was the statute clear or ambiguous; and (2) if ambiguous, did the agency make at least a reasonable interpretation?

Returning to Massachusetts v. EPA, in denying the petition for rulemaking, EPA said: (1) the agency did not have authority to regulate greenhouse gases under the Clean Air Act; and (2) even if EPA had the authority, it would decline to regulate. We will address the two points in that order.

The Court struck down EPA’s first authority-based argument with the first prong of the Chevron test; the clarity of the statute precludes EPA’s interpretation that it could not regulate greenhouse gases. The statute requires EPA to regulate “air pollutants from … motor vehicle engines, which … cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA had interpreted “air pollutant” not to include greenhouse gases. But, the Court said, the statute unambiguously includes greenhouse gases in the definition of air pollutant:

The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air ….” On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance[s] which [are] emitted into the ambient air.” The statute is unambiguous.

So, EPA loses the first argument (that they have no authority to regulate) because the statute clearly allows EPA to regulate greenhouse gases. The language of the statute, quoted above, is important because it informs the next question: did EPA properly decide that it would decline regulating greenhouse gases for the time being?

This aspect of the case is entirely about an agency’s discretion. Usually, it is very hard to lose a case as an agency declining to regulate. Yet, EPA lost. The Clean Air Act contains a provision on how courts decide whether EPA properly exercises its discretion in turning down a petition: the EPA loses if the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Turning to the issue in this case ,the Clean Air Act, said the Court, allows the agency to decide how to regulate, but does not allow the agency to decide what to regulate. To avoid regulating greenhouse gases as the petition urged, EPA needed to either determine that the asserted greenhouse gases cannot “reasonably be anticipated to endanger public health or welfare;” or the agency must offer a reason not to regulate.

EPA tried to offer reasons not to regulate: several voluntary programs are in place, the President is pursuing technological improvement approaches, regulations might hinder international negotiations on global warming policy, and so on. The Court did not find these reasons adequate because “they have nothing to do with whether greenhouse gas emissions contribute to climate change.”

The Court’s opinion suggests that when an agency makes a decision regarding whether or not to pursue rulemaking, it must ground that decision in the language of the statute. Here, the Petitioners asked the agency to regulate greenhouse gases because they are pollutants that the Act requires EPA to regulate.

The relevant language of the statute requires that EPA’s response address, head on, the science of greenhouse gases, and the costs and benefits of regulating them. The policy-centered reasons that EPA offered did not satisfy this requirement; nor did EPA’s assertion that too much uncertainty surrounds the features of climate change. EPA only asserted uncertainty at the margins of the global warming issue. Such “residual uncertainty” is not sufficient to excuse EPA’s refusal to determine outright whether greenhouse gases “endanger public health or welfare.” Thus, EPA’s explanation in response to the petition was “arbitrary, capricious, … or otherwise not in accordance with the law.”

A small conclusion

Reasonable people can differ on whether the Court has created a new legal hurdle for agencies responding to petitions for rulemakings. Many commentators, along with Justice Scalia’s dissent, wonder why the EPA had to make a judgment at all regarding greenhouse gases simply because of the filing of a petition. On the other hand, it makes sense to ground a determination of whether the agency acts arbitrarily or capriciously on the underlying statute.

The Court did not prescribe EPA’s decision—the agency can decline to regulate greenhouse gases for reasons more adequately connected to the Clean Air Act. However, the Court surely hinted that it (at least, five of the Justices) are convinced of some basic elements of climate change: greenhouse gases are sufficiently “air pollutants” that EPA can regulate, global warming results from greenhouse gases, and actual harms result. EPA would have a great deal of difficulty refusing to regulate on the basis of the air pollutants having insufficient harm to public health or welfare. Thus, it is very likely EPA will soon be pursuing cost/benefit, and other, analyses of carbon emission regulations to determine how to regulate greenhouse gas emissions.

2007-03-24T11:31:00.000-04:00

Did Prince Write that Sign?

To have a laugh one day, Joseph Frederick held up a banner while the Olympic torch passed him by in Juneau, Alaska with the message, "Bong Hits 4 Jesus." This being across the street from his school, during school hours, the principle rushed over, grabbed the banner, tore it up, and gave the high school senior a 10 day suspension. So he sued the principle claiming violation of 1st amendment right to speech.

The district court agreed with the principle, the 9th circuit agreed with the student, and the Supreme Court heard arguments on the case about a week ago.

Student speech is not a novel topic in the Court, and the most direct precedent to this case is Tinker v. Des Moines. There, the school suspended kids wearing black arm bands to protest the Vietnam war. The Court held that students still enjoy certain first amendment protection. Recognizing a school's need to maintain order, the Court said that the school can prevent speech when such speech is disruptive. Black armbands were not disrupting any lessons.

In a recent column, Marci Hamilton writes:

Why shouldn't schools be able to effectively discourage illegal drug or alcohol use, smoking, promiscuous sex, profane speech, and violence? The Motion Picture Association of America screens movies for children under such categories; surely, schools can make similar judgments in their guardian-like role as parens patriae.

...the slippery slope here is the one that is going to persuade many fine school administrators to find other lines of work. If the court rules that the school's actions in this case cross the First Amendment line, then school administrators are going to be advised to err on the side of permitting a wide swath of student attention-grabbing, inappropriate speech, even if it directly undermines legitimate school policies. This turns each principal into Sisyphus, constantly rolling the rock of civility and wholesomeness up the hill only to have it roll back down, again and again.

Schools certainly can discourage drug use. But I don't understand how Hamilton's hope that schools can censure student opinion on the subject will even help the drug-resistance policy. Silencing the other side of the debate often strengthens it--especially when it is an illicit activity that teenagers are being told by authority figures to avoid.

Far better the debate of drug use be out in the open...as it is very often in Alaskan referendums. An honest debate about whether marijuana should be legal seems a perfectly civic oriented discussion that the 1st amendment would envision.

Many arguments on the school's side focus on drug-use and propose that "disruptive" speech can be that which runs counter to a major school theme, and because pot-use is illegal, the school can prevent posters/shirts/etc that advocate the activity.

But, in Tinker, it was a major school policy was to promote patriotism and service (ie-not draft dodging). Thus, the black armbands in Tinker were a rebellion against the school's policy just as a a poster advocating drug use.

Illegality is often used as a potential differentiator--the Principle can censure a sign reasonably understood to advocate illegal drug use. Speech about some civic/political point is one thing, so the argument goes; speech about drug use is not as deserving of protection. This is a problematic line, though. Many civic minded discussions are precisely about what should and should not be legal. In any event, speech about drug use is far different from passing out drugs or using drugs on school property.

All the above said, though, we cannot ignore the amazing need to allow teachers control within their classrooms. We would be robbing our children's learning if we allowed their classmates to disrupt the learning environment at will, claiming 1st amendment protections.

In my mind, the focus ought never come off of "distraction." The 9th Circuit made this point in its decision in Frederick, noting that in other contexts, the bong banner may have been a distraction to schooling and could be removed. Distraction should be a context driven concept. Some students might be able to talk about the merits of legalized/illegal marijuana while the mention of a drug, for others, might cause eruptions of shouting.

In deciding whether a speech incident was disruptive, courts should defer to teachers, principles, the community, and then common sense.

In Frederick, the student could not have been disrupting class because class was not going on, and the parade was not school sponsored (rather, it was Coca-Cola sponsored). On the facts, I tend to side with Frederick. Then again, district courts decide facts and this one sided with the school.

2007-03-05T20:46:00.000-05:00

hmmm

Lithwick makes a very good point on this US Attorney business...

But it seems to me that that's precisely 50 percent of the scandal here. And there are some other folks deserving of subpoenas as well. Mr. O'Neill and Mr. Tolman spring to mind. The outrage isn't merely that the Justice Department abused its power to hire and fire. The real scandal is that it rewrote federal laws to do so, yet nobody seems to know who did it or why.

2007-02-19T18:27:00.000-05:00

stand in the place where you live

In order to bring a lawsuit to court, a person must have a case. You need to show the court that you've been harmed in some way that some law offers a solution, and that you have brought in along with you a person that is responsible with providing that solution. Someone steals your bike? There's a law that says the stealer wronged you and owes you the bike or some money.

But what if the harm is less direct? What if you didn't get the morning paper because the paperboy's bike was stolen by your would-be defendant? What if, as a taxpayer, you determine that the government is wrongly spending your money? Imagine a docket full of irate taxpayers.

Federal courts say that, generally, taxpayers can't challenge government spending because the harm they suffer is too minor and indistinct from the harm suffered by all taxpayers. "Taxpayer suits" against state and federal governments are usually thrown out unless the plaintiff can show a more direct injury resulting from the government action.

A recent case in North Carolina, though, shows us that we might see the opposite (more permissive) approach in some state courts. The North Carolina Supreme Court, in Goldston v. State, overruled a Court of Appeals decision that had followed the familiar federal route of denying taxpayer standing (standing = having a case, as discussed above). The NC Supreme Court noted that North Carolina is not beholden to federal standing principles, and, citing several old cases as precedent, allowed the plaintiff's standing on the basis of their being taxpayers challenging a state expenditure.

It makes some sense that taxpayers could sue in this case. The case deals with the state's potentially illegal use of some funds that had been set aside for a specific purpose...so the case is about taxes, expenditures, and so on.

But, a permissive policy of plaintiff standing could have some interesting results (worth keeping an eye on). The problem of not being directly enough injured has baned the existence of more than a few would-be plaintiffs; notably, environmental groups frustrated by government action or inaction.

Will be fun to watch.

2007-02-17T18:04:00.000-05:00

dc is filled with honkeys

i live in downtown dc about a 10 minute walk from work. surely as the day is long, this walk is accompanied by a steady drumbeat of car horns.

honking is not going to make a stupid driver less stupid. further, it is fundamentally wrong to honk at a pedestrian that has the little white man walk signal. fundamentally. it is no less evil to honk at the car that has graciously stopped for the right-of-way-having pedestrian. you are evil, honker, and should not be tolerated in proper society. prisons were built for your type.

a bit hyperbolic? imagine the honk in another context. what if a person walking down the sidewalk, when the slower fellow veers slightly diagonal in front, yelled "hooowaaaaaaaaaaaaaaa!!!!"? blind person steps in front of him, "blaaaaaaaannnngggggg!" Person's a lunatic, no?

My notion is that the horn is the refuge of the little man trying to be big. Worrisome is the societal acceptance of the honk. It is a moral problem.

2007-01-31T17:59:00.000-05:00

Checking out the premium stuff

2006-12-13T07:35:00.000-05:00

Family and Identity

Interesting post at one of the sites especially useful if you feel like having some juicy thought but are yourself out of oranges, Left2Right. The post discusses the impact of biological parents, and raises some interesting questions about society and family.

The family values of conservatives amount to little more than prudery about sex; the family values of liberals can be summed up roughly as "All You Need Is Love" (or, as the saying now goes, "Love Makes a Family"). Of course, families have a lot to do with sex and love, but in my view they also have to do with consanguinity -- with ancestry and descent -- and these are the family values that are threatened by recent social developments.

The post goes on to discuss the greater influence of biological parents over societal influences (ranking biological vs adoptive parents' influences on person-hood).

Without so much mind to the sociological/psychological studies discussed, the post more puts me to thinking about my own sense of value towards family and community. Without disqualifying nor diminishing familiar (read, biological extended family and ancestorial past) circumstances outside the following framework, I recognize that I have strong affinity and appreciation for consanguinity. There is something basically human about our search for identity based upon the foundations of our familiar past. And I agree with the author of the post that our earnest use and seeking of identity based pon this is (not threatened, but) budervalued in society.

Not having read the author's further writings, and thus not knowing whether this is a departure or not, I do think community must (really, has to) be valued equal with consangunity. It seems to me that our familiar segment of self is bound to community. The family is not so meaningful if it is stripped (in terms of societal meaning) from the interrelations with community. This is a simple point, really--anything we express concerning personality/identity/self-hood only contains meaning when atteched to a societal seting. For instance, a recluse is only a recluse if a society outside the individual exists.

Our family, as it exists within a community(ies) in which we grow is very much what we are. This I think is fact. Problem is, if the post's author is correct, we do not embrace this fact. We don't much pay it mind.

Tangible consequences? Well, self identity has been a human problem since the invention of mythology. But more immediately, it is our familiar and communal bonds that are the greatest contribution to helping hands and civility. Perhaps the mean people that suck are simply out of touch with their self.

2006-12-12T00:11:00.000-05:00

An Inconvenient Deference

In contemplating the manner in which we allow ourselves to be governed, one of the basic decisions we address, and with which we ought apply intellectual consistency, is deference. To whom do we defer ultimate decisions?

Should local government or federal government set education policy and standards? Should State courts or the Supreme Court make final determinations on a community's criminal code? Should a State legislature or the State high court determine whether certain people can be married or not?

In short, who do we trust to make the final decision on various issues that fall upon government, some part of government, to decide?

It generally seems to me that the issue is contextual and that deference ought be given to the body of government most suited to the decision--because of expertise, tradition, or a combination thereof. I tend to support deference to local governments in land use decisions. The town of New London was the proper body (and the Supreme Court the further from) to make decisions about local land use (and the use of eminent domain). I tend to think communities, and not US Senators, are more suited to set education policy. And I believe that administrative agencies ought to appreciate deference in their interpretations of statutes ordering their work because the agencies are the government's form of subject matter experts.

But ahh the devil of consistency. Does this mean I have to accept EPA's failure to regulate greenhouse gasses under the Clean Air Act that directs the agency to regulate dangerous air pollutants? Yup.

Seven years ago, the International Center for Technology Assessment sent the EPA a letter asking the agency to regulate carbon dioxide and three other greenhouse gases released by motor vehicles. The petition pointed to this language of the Clean Air Act...

The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare

...and asked that EPA consider carbon emissions "air pollutants" dangerous to public health.

EPA thought about it and decided that it couldn't, under the Clean Air Act, regulate greenhouse gas emissions from motor vehicles. And for the pleasure of answering hypotheticals, the EPA added that even if the Clean Air Act granted the EPA authority to regulate greenhouse gas emissions, the EPA could, within its discretion, not exercise its authority at the present time.

Twelve states, three cities, and several organizations sued the EPA. The Court of Appeals found that the EPA administrator properly exercised its discretion in denying the petition for rulemaking to curb emissions of greenhouse gases. The other day, the Supreme Court heard the appeal.

Much of the disagreement in this case revolves around different interpretations of (1)the Clean Air Act and (2) scientific research relating to the effects of greenhouse emissions.

The Clean Air Act defines an "air pollutant" is "any air pollution agent or combination of such agents, including any physical, chemical, biological, [or] radioactive substance or matter which is emitted into or otherwise enters the ambient air including any precursors to the formation of an air pollutant." And "Effects on Welfare" is defined as including effects on "soil, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, climate, damage to property, effects on economic value of property, and personal comfort and wellbeing."

There are good arguments for the EPA being able to regulate carbon emissions (carbon dioxide is emitted into ambient air and EPA could reasonably determine, based on profound evidence, that it causes an effect on the climate.

However, EPA regulates under the aegis of environmental expertise. As such, it undermines existing (and beneficial) regulations of emissions, doesn't it, to say they don't know what they're doing and they should regulate what we tell them to regulate. Consider the alternative case with the same arguments--except brought by a group arguing that EPA wrongly regulates lead, ozone, and particulate matter emissions.

Clearly, I don't think we challenge the agency "at our peril." But nor do I think the Court should succomb to the desire of trying to out-expert the agency. Unless...

If the Court heard convincing arguments that EPA has unreasonably clogged its ears of evidence that carbon emissions are an air pollutant danger to public welfare, then the Court may, and should, override the generally proper deference afforded to government agencies.

Otherwise, it is important to note that EPA is merely the federal face of environmental regulation. Generally it sets floors on regulation, but not ceilings. Nothing in the Supreme Court decision should bar states from addressing carbon emissions.

Unfortunately, carbon emissions are one of the areas that should be under federal regulation. Greenhouse gasses are not a local issue--they float off into the ether and affect states and countries far removed from the source. So where does the final word on greehouse gas polocy lie? Man, I'm not sure. Ms. World, perhaps?

2006-11-12T18:39:00.000-05:00

Drinking wine, wine wine, spotie otie.

2006-11-01T20:37:00.000-05:00

One day, it will be worth writing something about principle versus palpability. I remember that my own initial disagreement with war in Iraq was connected to the illogic of the endeavor. That now joins the palpable tragedy of the endeavor.

Our experience in Iraq will one day be a useful discussion. I never felt that we should have allowed Hussein to rule as he did. I believe in our, the US, role in standing for our beliefs (in some fashion). For the very same reason, I am proud of our eventual stances in Bosnia, WWII, and am ashamed of our stagnency more than a couple countries on the African continent.

At the same time, I felt our war with Iraq was idiotic. The political environment leading to the war was oversimplified and stupified. If Vietnam was, as learned in my school days, a great mistake of our cold war...Iraq will be regarded as a great mistake of an administration PR-ing its way to war (be that true or no...it is the perception among a great many). Think about it. Iraq had no missiles pointed toward us. The atrocities of genocide (against which I would urge military action) were NOT on-going and were arguably preventable (in any event, the situation was quite distinct from the Balkans and Sudan).

so why? that is what so many of us askED and continue to ask. Except that, now that we are there, the ones of us that still believe in America's role as a global benevolent force want to urge the country to liberal democracy (small l and small d). Which leads us to that apparently unknown to the media and political ads grey area of war-criticism but staying in the country to fix the problem.

Anyway...I was thinking of the scene nearly three years ago when, according to the language of media polls, the war was supposedly "popular"

In our media's short term memory world, it is amazing to read from John Brady Kiesling's resignation letter from February 24, 2003. Kiesling was our diplomat to Athens. This is a bit:

The policies we are now asked to advance are incompatible not only with American values but also with American interests. Our fervent pursuit of war with Iraq is driving us to squander the international legitimacy that has been America's most potent weapon of both offense and defense since the days of Woodrow Wilson. We have begun to dismantle the largest and most effective web of international relationships the world has ever known. Our current course will bring instability and danger, not security.

The sacrifice of global interests to domestic politics and to bureaucratic self-interest is nothing new, and it is certainly not a uniquely American problem. Still, we have not seen such systematic distortion of intelligence, such systematic manipulation of American opinion, since the war in Vietnam. The September 11 tragedy left us stronger than before, rallying around us a vast international coalition to cooperate for the first time in a systematic way against the threat of terrorism. But rather than take credit for those successes and build on them, this Administration has chosen to make terrorism a domestic political tool, enlisting a scattered and largely defeated Al Qaeda as its bureaucratic ally. We spread disproportionate terror and confusion in the public mind, arbitrarily linking the unrelated problems of terrorism and Iraq. The result, and perhaps the motive, is to justify a vast misallocation of shrinking public wealth to the military and to weaken the safeguards that protect American citizens from the heavy hand of government. September 11 did not do as much damage to the fabric of American society as we seem determined to do to ourselves. Is the Russia of the late Romanovs really our model, a selfish, superstitious empire thrashing toward self-destruction in the name of a doomed status quo?

We should ask ourselves why we have failed to persuade more of the world that a war with Iraq is necessary. We have over the past two years done too much to assert to our world partners that narrow and mercenary U.S. interests override the cherished values of our partners. Even where our aims were not in question, our consistency is at issue. The model of Afghanistan is little comfort to allies wondering on what basis we plan to rebuild the Middle East, and in whose image and interests.

2006-10-18T20:13:00.000-04:00

Faith, America, The First Amendment, and a few things in between.

On Monday, the former deputy director of the White House Office of Faith-Based and Community Initiatives, David Kuo, released a book arguing that the White House used the faith-based program more for political purposes than anything else. The charge mirrors Kuo's former colleague in the faith-based initiative program, John DiIulio's, complaint that "What you've got is everything, and I mean everything, being run by the political arm."

On Tuesday, E.J. Dionne's column in the Post discussed Kuo's book, Tempting Faith. Some relevant lines:

Yet the most useful thing that could flow from Kuo's revelations would not be a splashy exchange of charges and countercharges but rather a quiet reappraisal by rank-and-file evangelicals of their approach to politics.
I hope Kuo's book promotes serious discussions in religious study groups around the country about whether the evangelicals' alliance with political conservatism has actually made the world, well, more godly from their own point of view. What are evangelicals actually getting out of this partnership? Are they mostly being used by a coalition that, when the deals are cut, cares far more about protecting the interests of its wealthy and corporate supporters than its churchgoing foot soldiers?
...I once hoped -- and, for the future, still hope -- that left and right might meet in some compassionate center to offer support for expanded government help to the needy while also fostering the indispensable work of religious and community groups.
...Despite our disagreements, I have always shared Kuo's view that liberals who care about the poor should be less squeamish about building stronger alliances between government and religiously based social action work. Government can do things the religious and community groups can't, but the religious and community groups can do things government can't.

I sent the article to our contributing friends, Mike and Lily, spurring the following discussion. Please send your thoughts.

Mike:

I find myself in much agreement with the article you sent us Andrew. Additionally, I saw the televised interview with Mr. Kuo....I wasn't wholly taken with him though, but would need to read his book to have a better sense of it. The tv show also had one of the Faith Based leaders who disagreed with most of Kuo's points, this again at least bringing several things into question. Overall though, it sounds like there is much to say by Kuo that should be listened too by thoughtful voters, and especially thoughtful Evangelical voters. There are two important issues for me though that cause serious hesitation:

1) once again, the definition of "evangelical"....some of Kuo's most inflammatory statements have been about white house folks calling certain "evangelicals" nuts and so on......again, in articles ad on tv evangelical is equated with Robertson, Falwell, and Dobson. Heaven knows I can see why someone might refer to these gentlemen as nuts, but they are not the sum total of evangelicals. Perhaps fundamentalists....but not evangelicals. As long as the definitions of these 2 words are constantly mis-used and mis-construed, even by people of good natures and thoughtful positions such as the article's author, then there are goig to be serious disconects.

2) The author says: "Despite our disagreements, I have always shared Kuo's view that liberals who care about the poor should be less squeamish about building stronger alliances between government and religiously based social action work. Government can do things the religious and community groups can't, but the religious and community groups can do things government can't.ur disagreements, I have always shared Kuo's view that liberals who care about the poor should be less squeamish about building stronger alliances between government and religiously based social action work. Government can do things the religious and community groups can't, but the religious and community groups can do things government can't."

YES YES, well said, I fully agree! FULLY. But, there is something lacking here, and that is the clarion call to oppose organizations [such as the ACLU] and politicians who act and legislate to create a society in which the public square is agnostic/atheist. Its all fine and dandy for someone to say, like the article's author, that his opinion is [see italics above]....but then we have to go on ad support liberals who specifically vote and/or appoint judges who interpret a society and public domain that is empty of faith.

Finally Andrew, I think its not surprising that the issues come back to this basic premise, one in which I think you and I still mostly disagree [I think! we probably still need to distinguish more!]....if we had a country that interpreted the public square as exactly the kind of places where our faiths flourished openly, side by side with respect....as opposed to an atheist/agnostic public square...if politicians would vote and legislate in this light, and in the light inferred by the article writer in the italics I quoted above, then we as a people could well be on our way to electing a government of the people who would embrace the viewpoints of most of our citizens, and of the writer of this article as he expresses it. Governments and Faiths can work together...yes, great......now let the ACLU hear that......

Cheers, and thanks for the article! Michael

----------------------------------------------------------------

Andrew:

I’m not so sure our disagreements and agreements are in stark light.

We should look into my position on establishment clause law. I will learn more about distinguishing my own position, and we will perhaps shine some light on where we stand together and where we differ. Generally, I am in favor of strong protections for free exercise and in favor of strong protections against establishment. I see the two as going hand in hand—and, with O’Connor, I have consistently thought of coercion as the thing we look out for when looking into whether a Congressional act (and, now, any government activity) violates the first amendment. Coercion best captures what it is I fear…my gut reaction…but it also seems a very reasonable test for what we mean by establishment. I feel that we need this test because I disagree with the position that “establishment” refers only to the establishment of a state church. I feel history is on my side, but this is another conversation. Finally, I regard coercion as the test of establishment because coercion is where the government does something in regards to religion that bites into free exercise.

But, in saying that, perhaps I should clarify free exercise, and my thoughts on the “religion clause” in general. I don’t think the premier notion of free exercise is about physical activity. I don’t think the sentence is so much about our physical activity as much as it is about our soul seeking activities. I think this is reflected in the trail of cases that do not allow free exercise to tramp the police power of prevention of causing others harm. The line of thinking concludes in the Smith decision—if it’s a neutral law, not geared to squashing your religion, it usually trumps free exercise challenges. So, largely agreeing with this line of interpretation, I think the free exercise portion of the religion clause protects our ability to THINK, primarily, and to DO (with limits) things in pursuit of our soul’s journey. With that in mind, the establishment portion of the clause tacks on the necessary compliment to this: government won’t interfere by establishing, for you, the answer to your search. And how do we know if government is doing that? Coercion.

Now, all that said: bodies of government most certain can (and I’ll allow the chorus of “should”) acknowledge, work with, invite, accept, discuss, and ALLOW religion. Government bodies simply cannot do things that amount to coercing a religion. To make this clear: I also don't think government should coerce non-religion.

I am not aware how my position precludes a faith based initiative. Perhaps I would need to respond to arguments. I would be happy to see a group’s argument to the faith-based initiative office.

Yours,
Andrew

-----------------------------------

Mike:

Two points: 1) "neutrality" is often a "nice" word used to create and enforce what I call the agnostic/atheist public square. One man's neutrality is another man's oppression. Here again, I say the definitions are critical. If neutrality means wiping out religion from the public square, then I am utterly and 100% against neutrality. If neutrality means that in a public school an Islamic female may cover all her face but her eyes, a Jew may wear a yarmulke, and a Christian wear his cross, then I utterly and 100% support neutrality. So what does this word mean? 2) Next, the use of the word "coercive" by Andrew is indeed enlightening, I too think it might be an excellent standard or term whereby to measure/assess issues of church and state....once again though, the primary problem being definition/interpretation! To ME it is outrageously coercive to force Christians to take down [or to disallow in the first place] a cross placed on government owned lands during religious holidays, especially if that cross is paid for privately. To others, perhaps you [?] {*this is not a rhetorical question! I would love to know your answer}, a Christian symbol would be coercive of people of other faiths or no faiths. Hence, the problem with "coercive". Once again, one man's "coercive", may be another man's "freedom".

It is my prediction that our discussions, we'll see if Im right, will pivot fundamentally on tangible issues of definitions. I imagine our greatest difficulties won't be so much in mutually choosing words we can like and support, but rather on agreeing on what those words mean. Aye, there's the rub.

2006-09-18T23:02:00.000-04:00

Thanks to their hard work...

and dedication...

and in the face of defeat...

North Carolina shows itself to be, and who really doubted this, where the heart is

2006-09-13T08:43:00.000-04:00

Photographic Memory

David Plotz, in a column today on Slate, correctly calls NY Times columnist Frank Rich out on Rich's Sept 10 column. The subject of the discussion is the Sep. 11, 2001 photo of folks talking on the Brooklyn waterfront while, across the East River, smoke wafts up from the fallen World Trade Center towers. The photo, and Plotz's discussion, are here.

Rich's column uses the photo to discuss American apathy. He assumes the people in the photo have, because of their appearance in the photo, dusted themselves off from the tragedy and continuing on in everyday life. Rich writes that this is common to the American psyche. Plotz, in turn, wonders why Rich jumped to this conclusion. The people look rather like they are discussing the events that they have seen. For Plotz, the photo is an emblem of American democracy.

They have looked away from the towers for a moment not because they're bored with 9/11, but because they're citizens participating in the most important act in a democracy—civic debate.

Ask yourself: What are these five people doing out on the waterfront, anyway? Do you really think, as Rich suggests, that they are out for "a lunch or bike-riding break"? Of course not. They came to this spot to watch their country's history unfold and to be with each other at a time of national emergency. Short of rushing to Ground Zero and digging for bodies, how much more patriotic and concerned could they have been?

I side with Plotz's interpretation. But more importantly, I applaud Plotz's last paragraph: "Rich and Hoepker and I have all characterized what these five people were doing and how they were feeling, but none of us really know. Wouldn't you like to hear from the five themselves? I would."

This is important because all the interpretations that Rich and Plotz offered are, in fact, what destroys our democracy--or more accurately, the willingness to lodge on to an unknown thing (be it a photo or an out of context line from a speech) an entirety of assumption and derivative conclusion (be it about the American psyche or the merit of someone running for office)...such willingness is precisely what weakens the deliberative democracy so important to our Nation. In other words, such willingness turns our citizenry into unthinking, unlearning, and all-assuming nincompoops that vote according to a thirty second TV advert.

It is our human nature to ascribe a context to a tidbit, and I do not advocate a life with no assumptions to fill the void of context. Otherwise, we'd be forever brains in a vat, or mini-Hamlets, refusing to act without a full knowledge of truth. However, we do need caution and vulnerability if we are going to go about with some intellectual responsibility. Caution to catch whatever bits of truth we can, and vulnerability to let us change our minds and grow.

Politics, I reckon, is where these two items are most lacking. Well, politics and gossip are maybe in a dead heat.

2006-08-30T22:03:00.000-04:00

Advice

You are what you wear. Forget what you think, what you feel, your friends, and your own sense of style.

And so fortunately, in the face of fascist schools and their dress codes, we have the liberating advice of:

Shop at your favorite stores or designers. Just because your clothes have to be conservative doesn’t mean you can’t still buy the brands you like to wear. In fact many designers now make clothes specifically to meet the growing dress-code and uniform markets.

how to dress like an individual at a school with a dress code.

man, i am getting old i reckon.

2006-08-08T22:14:00.000-04:00

disclaimer: i have no idea the context, but...

I just heard, in the background, on CNN the following, "women and children, that are in no way involved in the politics of this area..."

something about being removed from homes, injured, lives changed, or killed.

But go back to that quote. I do know some context, the reporter was talking about the Lebanon/Israel conflict when she mentioned the suffering. I am sure there is suffering, and the suffering is not what bothers me about what I heard.

Since when did women and children have nothing to do with the politics of any area in the world in any part of world history? And why do we allow such statements said in cliche fonts?

1) Women and children having a sadly muted voice in recorded history is worth discussing. But there is a difference between recorded history and real and present thinking. In the thoughts of any figure that shapes world history, men, women, and children play prominent parts.

2) Last I checked, women play quite large roles in Israel and Lebanon.

To disagree on that second point is to believe that the faces we see on CNN are what really matters. That belief, in my opinion, is either silly or the product of a strange strategy of cable news ("the women and children who have nothing to do with this conflict") to convince the poloi of the great untruth that a select few men have structured the world. I thought Professor Zinn had rid of of such ill-thought norms.

2006-07-31T22:10:00.000-04:00

i beg to differ

Does the market dictate?
People asking for money from passers-by on the street engage in various strategies. There is the story about being stranded in town after visiting a relative in the hospital and needing bus fair; there is the foreigner with an index card shoved into your face; there is the jingling cup; the god bless you; the display of being crippled.

After dropping a quarter in a cup tonight and being downright uplifted by the cup-holder's warm greeting and 'take it easy brother,' I got to thinking about the men and women that ask for change around my whereabouts. Much unlike my home of Chapel Hill, and really much unlike almost anywhere else I've been, there is a strange pleasantness that these people, that I see about every day display. But I don't know them and they do not know me. I have begun to wonder if that pleasantness is a very smart strategy for winning in the market.

Surely the word of what does and does not work, in pursuit of change, passes in some medium. Even individually, there must be some rational copying of tactics used in the past that achieved a fuller pocket of change.

And the more I thought of it tonight, the more I wondered whether such panhandled tactics are any less elaborate, any less developed, and any less ingenious than anything we would read in the coursework of Harvard Business School. I shall search out a paper entitled, "From the Street to the Board Room."

Location. Understanding what the market will bear. Honing in on a target.

Really, what is the difference between a man asking for my change and a man, clad in tie, huddled over a desk figuring which celebrity's legs might make a twenty-something buy Deodorant X?

Crazy
Poverty, desperation, and un-cared-for crazy people. These are all massive difficulties that deserve frank and honest thought.

I have no idea which item breeds the next. It seems entirely plausible that extreme poverty can lead to physical and mental failings. Desperation eased by passing out drunk or drugged seems entirely plausible. Likewise, it seems fully likely that a crazy person, without any help and unable to function in our normal society, will fail in our norms, hold no job, and live in no home.

I don't think a person's lot in life is entirely attributed to factors beyond that person; but it is purposefully ignorant bliss to think a person self-determines that lot. We need to address insanity, drug use, honesty, laziness, crookedness, and pitifulness on equal and unassuming terms if we are to squarely deal with homelessness.

In the meantime, some decent write-ups.

Poor Magazine,
some efforts at local government efforts,
and
the straight dope.

2006-07-22T19:05:00.000-04:00

It's been awhile, but i can explain. promise.

2006-06-12T16:47:00.000-04:00

Charles Krauthammer had a column on Friday called A Ban We Don't (Yet) Need. It's about the constitutional necessity for a heterosexual marriage amendment to the federal constitution. You can read it here.

I think I'd tend to disagree with CK's contention that the DOMA isn't likely to be overturned by the current Supreme Court. . . . at least to the extent he's implying that a majority of the Justices don't like gay marriage and therefore they'll never strike down the Act. I think there's a clear argument to be made that DOMA violates the Privileges and Immunities Clauses -- not necessarily a winner, but one that I think the Justices would be forced to consider on its merits if they want to be intellectually honest.

The P&I clause says: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (This is the P&I clause as stated in art. IV, sec. 2, cl. 1 . . . there's one in the 14th Amendment, too, but it was essentially gutted by the Supreme Court 5 years after it was passed) The purpose of the Art. IV clause was to ensure that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed. (The original thinking was to facilitate the unification of the independent states into one nation, back in the day.) Generally speaking the Supreme Court has read the clause to reach only Ps and Is guaranteed by U.S. citizenship, not state citizenship. Examples of rights of US citizens that the states can't abridge: the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; and habeas corpus. Things the states ARE allowed to do: charge lower tuition for in-state residents who attend public universities; charge different rates of income tax; and enact different licensing requirements for doctors, lawyers, etc.

The question posed by DOMA is whether the right to marry a person of the same sex falls into the first category or the second category -- i.e. is that right guaranteed by US citizenship or state citizenship. I see that as a tough call -- in other areas of the law, the Supreme Court has ferociously guarded rights having to do with family, e.g. the right to marry, have children, live with extended family members, etc. (There's a case from several decades ago, for example, that strikes down a state law prohibiting deadbeat dads from getting remarried until they pay all their back child support; and another one that strikes down a zoning law providing for single family housing, which attempted to exclude a grandmother who was raising her two grandkids.) On the other hand, I don't think it's at all clear that the right to marry someone of the same sex falls into this same category of sacrosanct family rights. But the argument can be made.

This may all be somewhat off base, in the end, because for the most part when state laws purport to infringe the fundamental rights of U.S. citizenship, the Court invokes the Equal Protection Clause, not the P&I clause, to analyze the constitutionality of the state action -- there's just a more sophisticated theoretical framework that's been constructed around the EP clause over the years. I think any DOMA challengers would have a tougher row to hoe if they framed their argument under the EP Clause. . . . but that's another story . . .

For those interested in doing more reading up on P&I, here are some links from Findlaw and a more basic legal encyclopedia, which have helped me understand this issue in writing the above.

2006-05-31T20:58:00.000-04:00

An email from my doctor friend:

I had a dream last night that you lived in a house made out of popsicle sticks and you shaved your head and grew a long beard. My advice: don't do it, you look like a stooge.

-Grant

2006-05-30T19:19:00.000-04:00

On "Like"

The plethora of uses for "like" in modern american vernacular has been the screech in the ear or the linquistic norm comforter (creating a sort-of cadence in the ear) for users of our language for some time. Since 1982 we have or have not tried to avoid sounding like a Valley Girl, and for even longer we have or have not wanted to sound similar Scoobie's friend, like, Shaggy.

let this second paragraph sit as an aside: for i don't know how long, the use of "so" to end a sentence, as a sort-of trailing of, is creeping up as the next rhetorical institution with which to be dealt...soooo....(miles presciently asks, so what?)

"Like" now has a numer of uses apart from its comparitive origins. Most are oral, such as the place holder (Well, like, I think we're doing X); the verbal quote (and I was like, my name is Andrew); and the verbal approximation (it's, like, lunchtime) where written language would normally use "about."

While for the most part I am no fan of "like," I do have 1) a curiosity on one aspect; and 2) an approved use.

To the extent "like" has become a verbal filler of space, in place of ummm, the usage is more annoying. Especially when placed in the beginning of a sentence. "Like....wherever you want to go." It seems to have the connotation of eyes rolling, uncertainty, or adolescence. My curiosity is this: why does it feel right in the mouth? ummmm feels sort of like a thoughtful hum whilst forming thoughts...it sort of keeps the throat moving while grasping fo rthe next kernel. Like is the opposite. It abrubtly stops the sound with a hard k sound.

Also, ummm forms in the face a sense of contemplation. Lips are sealed lest we release the wrong words. Like forms on the face a sort of grimmace. A teeth bearing almost cattiness.

All the same, potentially the most annoying (to the ear) usages is also the one I think most suitable for ocnversation. This is the approximate quotative. It is used when summarizing a prior converstion. He was, like, i think X; and I was, like, I think Y.

When relaying prior conversations, the truth of what was actually said is usually lost in the relay. The child's game of telephone so prooves. Using "like" conveys some sense of acknowledging this fact. It relieves the speaker of exact quotation and warns the hearer that the third party involved in the prior conversation might well have a different idea of what wa said. "Like," then, almost is used as a rule of evidence to allow hearsay evidence.

A second curiosity: I was trying to think of what we used for summary information of a prior conversation before "like." Did we say, "well, so and so said something approximately along the lines of, 'I think X'."?

2006-05-25T17:55:00.000-04:00

Tom and Bruce sing: "cause down the shore everything's alright"

2006-05-05T16:48:00.000-04:00

why am i writing this post?

i got to thinking about some mariah carey videos the other morning.

is intellectual honesty (or really more accurate: consistency) a good thing? if so, is there a reason we, broadly as a society, don't care about it? if not, if intellectual inconsistency is fine, is there a reason why we chaffe upon its discovery (as in, why being a flip-flopper is a bad thing?) is there a reason we celebrate mind changes and maturing one moment and condemn shifts in opinion the next? again, let me just ask: what is up with consistency in america?

The first two singles for Mariah's new album, Emancipation of Mimi, were "it's like that" and "we belong together." "It's like that" came out some time ago as a video, and launched off the album. I remember reading "mariah's back" type music critics that remarked upon the song as a vehicle with which the pop artist rode back into prominence. The lyrics, some mentioned, really captured Mariah's state of self. She's over the meltdown, no more drama, just putting out good music. Lyrics like this:

Cuz it's my night
No stress, no fights
I'm leavin it all behind
No tears, no time to cry
Just makin the most of life

hard to argue. "It's like that" was a statement. I'm leaving the drama soapopera celebrity this that glitter world beind and enjoying life. cool.

The video featured Mariah walking into a party. Basically that was it...the entrance and the pre-entrance getting ready (makeup, you know).

Well, the video, that again featured lyrics celebrating the soap-opera-less life, ended with a young man tossing some flowers Mariah's way. And the next single's video, "we belong together," features a marriage ceremony from which Mariah bolts, 5 mile long dress trailing behind, from the Richard Gere lookalike hired for the video for the Justin Timberlake lookalike (tux and sneakers in full gear).

So much for leaving all the drama behind.

Somewhere in these two videos is a good analogy of our ability to live and thrive within an intellectually inconsistent world. perhaps this is why we make so many new years eve resolutions.

2006-05-02T00:19:00.000-04:00

go south.

dang it if it's not another book to buy. Economist has a good glimpse of this new one out from Martin Gayford, The Yellow House. The book is about what I have to imagine would be excellent fodder for a month long sellout at your local indie theater: the roomate-ship of Vincent Van Gogh and Paul Gauguin in southern France.

Southern France (don't give me "south of France" unless you also say North Carolina is in "south of America") has always (the one time i was there) struck me as quite similar to southern U.S.: awesome. Sunny, happy, warm disposition, wonderful, bright, and the summation of all things good. Van Gogh, wanting to paint out what the nature around him compelled, and not wanting his mind too much in the way, was naturally draw to get going a "southern school" of painting that exploited what beautiful Provence offered.

As the Economist column discusses, Van Gogh's heart contrasted to no small level with Gauguin's mindfulness. Also, Gauguin is quite often (likely correctly) regarded as a pompous prick.

That these two were roomates, complete with paintings dedicated to each other, is ripe for film. It's over ripe. It's a brown banana. For pete's sake, the whole ear episode. I look forward to the movie version of The Yellow House. I can then strike this one happily off my reading list.

2006-04-25T22:33:00.000-04:00

Saving the World -- One Kindergartener at a Time

The United States Supreme Court recently denied certiorari in the case of Peck v. Baldwinsville Central School District, a case out of New York City that was decided in the Second Circuit Court of Appeals. The Court’s decision not to hear the case left intact the Second Circuit’s opinion, which ruled that a kindergartener named Antonio Peck (and his parents) had provided enough evidence to warrant a jury trial on whether the child's free speech rights had been violated. In brief, the child had been asked to make a poster that portrayed a way to save the environment. With the help of his mother, the child made a poster that said the only way the environment could be saved was through Jesus. School officials asked the child to redo the poster, which he did; the new poster contained less religious content, although it did depict a church, a cross, and a small Jesus figure. The school allowed the second poster to be displayed along with the other children's posters in the school auditorium, but the principal instructed that Antonio's poster be folded to conceal the religious components.

The Pecks sued for viewpoint discrimination, and the federal district court granted summary judgment to the school, effectively saying that the Pecks were not able to state a claim for a violation of free speech rights. But the Second Circuit reversed, saying that issues of fact remained on the free speech claim, which would need to be resolved by a jury. (Read a summary of the Second Circuit’s opinion here.) The Second Circuit wrote that "[A] manifestly viewpoint-discriminatory restriction on school-sponsored speech is . . . unconstitutional, even if reasonably related to legitimate pedagogical interests."

I tend to agree. These facts present a classic example of how American common law is often the manifestation of a nation arguing with its conscience. (Thanks, Senator Obama, for characterizing it this way in your memoir.) There is a deep balance that needs to be found between the various clauses in the First Amendment, especially these three: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech."

How to find this balance? Andrew made the excellent point that we can be guided here by Jacob Needleman’s vision of American society as the vehicle by which we create conditions of life in which the ultimate questions can be freely pursued. Our goal is to craft a society and a way of life where we can freely engage in our own intellectual, moral, and spiritual searches: a society that allows - and, in fact, encourages - persons to reach their full potential. How best to save the environment is a perfect example of the kind of ultimate question that everyone - from a kindergarten child to a twenty-something blogger to a national leader - must be able to search within himself to answer. My applause to the Second Circuit for taking a step forward in this direction, by creating an environment that allows young Mr. Peck, and others like him, to embark upon the crucial exploration.

2006-04-19T08:54:00.000-04:00

On being green.

Offline, we've been discussing the difference between envy and jealousy. Turns out, I think the discussion helps clarify what the two things are. Here's a sum-up; but, note: this is clean slate, and does not extend the definitional discussion below. Also, I am being descriptive, and not prescriptive, of what these terms mean. Finally, I am agreeing with Mike's comments (below) that these are bad things--and so am explaining why they are bad.

Ordinary language tends to conflate envy and jealousy. The philosophical consensus is that these are distinct emotions.

To sum up the discussion in this link, jealousy is focused on the goal; envy is focused on the competitor. Both are three-place relations.

Jealousy involves three parties, the subject, the rival, and the beloved; and the jealous person's real locus of concern is the beloved—the person whose affection he is losing or fears losing—not his rival. Whereas envy is a two party relation, with a third relatum that is a good (albeit a good that could be a particular person's affections); and the envious person's locus of concern is the rival.

…

Because envy is centrally focused on competition with the rival, the subject might well be equally bothered if the rival were consorting with a different (appealing) person, but would not be bothered if the ‘good’ had gone to someone else (with whom the subject was not in competition).

An aside on envy: Stemming off this, I would call an aspect of envy the “kid and fire truck toy” theory. Kid A ignores a lonely, plastic fire truck. Kid B goes to the toy and has a field day rolling it across the play room carpet. Kid A becomes instantly interested in the red plastic toy and tries to edge Kid B away, fails, and then cries to Babysitter X “make Kid B (these kids speak in abstract language too) give me the truck!” Somewhere in the midst of Babysitter X’s lecture on the value of sharing, Kid B has moved to another toy, Kid A has grabbed the truck, and immediately lost interest in the once-valued commodity.

Here, envy is manifested in Kid B’s propensity to act as a driver to Kid A’s wants. Kid A and Kid B are “rivals” for purposes of this discussion; they are peers with common stations in life and presumed aspirations (seeking out the enjoyable passage of time within a playroom). Obviously lacking in his ability to find fun, Kid A is envious of Kid B’s seeming amusement, and is led to one potential result of envy: copycat-itude.

In any event, let’s return to envy/jealousy in respect to relationships. Strike that. It is helpful to divide out relationship and pre-relationship (crush, flirt, moonlight walks…) because, as we should see, the crucial aspect the reasonableness plays in all this changes with the status of relationship.

Starting with the abstract: simply wanting to be in a relationship is neither jealousy nor envy. Narrowing in, say you see a happy couple. Wanting a relationship like that (so you say to yourself) is likewise neither envy nor jealousy…it is rather a reasonable aspiration. Even coming upon a specific person with whom you wish you were calling “darling” is not necessarily jealousy.

In this situation, jealousy is the unreasonable attachment of emotion upon the desire for that “good.” Various indicators reveal the unreasonableness. It might be the 13 year old that really really wants to be married to the unknown celebrity; it could be the fault of emitting onto a person what we want them to be, and not who they are; it could be our desire for what we want trumping the more reasonable desires for what is good.

Envy, here, is the unreasonable attachment of enmity toward the competitor to this goal (the “goal” here being the crushee. Note: this clearly objectifies the person, and that’s really the point, isn’t it? Jealousy and envy, in their unreasonableness, tend to have that effect.) We would be envious of the guy we see the girl flirting with. Again, though, it isn’t automatically envy to take notice of competition; rather, envy comes at the point that said notice becomes unreasonable emotion (ill-will, for instance). It is also possible to be envious of the barriers to having the relationship (the goal). One might be envious of the crushee’s personal or career aspirations (I think). Envy is that angry eye turning to the obstacle. It is the tripped up runner yelling at the hurdle.

We see here, too, that jealousy and envy can (and, likely usually do) co-exist…spurned on by one-another.

In all this, the basic concept of agape (brotherly love…the “highest” love in most Greek literature) is in many ways is the active refusal of jealousy and envy.

2006-04-11T20:28:00.000-04:00

springtime means my pool's about to open back up.

2006-04-08T18:49:00.000-04:00

A Time to Talk
by Robert Frost

When a friend calls to me from the road
And slows his horse to a meaning walk,
I don't stand still and look around
On all the hills I haven't hoed,
And shout from where I am, "What is it?"
No, not as there is a time to talk.
I thrust my hoe in the mellow ground,
Blade-end up and five feet tall,
And plod: I go up to the stone wall
For a friendly visit.

Happy weekend everybody! Thanks for all the friendly visiting.

2006-04-04T21:38:00.000-04:00

the answer. on a coffee shop window around the corner.

2006-04-04T01:14:00.000-04:00

to boil with heat.

Let's drop, for a moment, our marriage discussion and really nail down this concept of jealousy. What had me and Lily so perplexed is that, patently it would seem, general society will react to the following two scenarios quite differently:
1) X is "jealous" because spouse Y is kissing another person; and
2) X is "jealous" because spouse Y is having tea with a friend and bonding over Oprah.

The jealousy, or hurt, or sense of shame here, whatever name is used, will undoubtedly be treated with more sympathy for scenario 1, and will be nearly universally ridiculed in scenario 2. Now, whether that should be the case or not is not my concern. I am only curious why. And my curiosity is compounded when pondering the concept that, if jealousy is X's chosen nomenclature for explaining the emotion, and if jealousy is bad without degrees of less or more bad...then why does society treat number 1's jealousy more sympathetically than number 2's?

Beyond this question...or, perhaps, in pursuit of its answer...what in all heck is jealousy? Some thoughts:

I can dig that it's simply no good. At the same time, I feel in my gut it is a basic human response to challenges to our status, and it is better to acknowledge it and erase it than to supress it. I don't fully feel the popped up emotion is so bad, whereas I suspect the accumulation of pop ups is a real stinker.

What is the difference of jealousy and envy? Is there one? And to covet?

To the extent jealousy and envy are synonomous (please offer some argument that they are not...i've failed thus far to think of one), I am more ready to regard them as unhealthy things to be addressed and zapped. But perhaps there is more complexity here?

Finally, to simply screw this all around, some Greek:

Jealousy's root word comes from the latin zelus. This is the same word that gives us zealous. And that latin word comes, in turn, from the ancient Greek "zelon;" meaning ardour, excitment of mind, and so forth...but also meaning an envious and contentious rivalry. And, better yet, that greek noun comes from the Greek verk, zeno, meaning to boil with heat. And, as were many verbs in this poetic language, the verb was used metaphorically as boiling anger, love, zeal, for what is good or bad.

Do we use the old sense of the word? an envious and contentious rivalry? wrestling the angel?

2006-03-31T08:04:00.000-05:00

which marriage do we mean?

Thanks to Lily for beginning the stack-on of some thoughts in this
jealousy discussion (stemming from Saletan's Slate column discussed
below). Lily's post, below, nails the gut reaction to Mike's
challenging thoughts: if jealousy is jealousy, all bad, and entirely
to be avoided...why do we sort-of socially accept feelings of jealousy
wherein infidelity is involved but treat it as shallow when it
involves the signif other spending time with a friend? (before i go
and repeat her post, read below)

Next, I find it important to clarify that there are (or, should I ask
whether there are) at least three "marriages," or, anyway, contexts of
marriage, and they are by no means mutually exclusive: Religious,
Social, and Legal. While Couple X might live in and regard all three as
definitional to their relationship, it seems to me that a couple might
also define the marriage/coupledom as a single one of these three.
And, beyond that, it seems we need to parse out what we are tallking
about when we talk about marriage (not to mention non-married
coupledom).

For instance, I fully appreciate Mike's position that jealousy CANNOT
define his religious definition of marriage. But is it possible that
jealousy might act as a source to one of the plethora of social
perceptions of marriage? It seems so. Maybe the legal as well.

And back to this word "jealousy."

Perhaps, that, too, can have various meanings depandant on our context. I think I'm intellectually on board with Mike, or at least understand, the attempt to reject and avoid jealousy when the word centers on possessiveness.

But what about the word as used in "I will jealously guard" such and such? The word is used in a more noblesense sometimes, and I think we can differentiate it.

I'll take a stab here: it could have a use that pulls in ideas of vulnerability. We might be jealous because the object (in this discussion, the sig other) that has some interaction with a third party is connected to us. Here, the jealousy is not a function of possessiveness; rather, it stems from something we think of as part of us, and the event that causes the jealousy brings that connectivity into doubt.

That at all clear?

2006-03-30T12:08:00.000-05:00

More Thoughts on Jealousy

It's an interesting proposition that the emotion of jealousy/possessiveness -- in this narrow context of marriage/romantic love -- is not necessarily sinful or ethically wrong (unless it is taken to extremes! The same can be said of most emotions...) Andrew and I were working on parsing out the possessiveness aspect of jealousy yesterday, in an attempt to understand why it appears to be universally the case that the presence of a third person in the breakup of a marriage would make the whole thing much more bitter, than if the two people just fell out of love. Should there be any difference in the dumpee's emotional reaction to a break up due to infidelity, versus a break up due to the dumper's just getting tired of the relationship? What do we call that element that injects the extra bitterness in the first scenario, and, whatever it is, is it morally wrong to feel that way?

2006-03-30T11:34:00.000-05:00

Spectacular news out of Baghdad this morning: Jill Carroll has been released!

"As cold waters to a thirsty soul, so is good news from a far country." -- Proverbs 25: 25

2006-03-26T19:35:00.000-05:00

let's craft a jurisprudential theory: judicial activism is ok if it concerns education.

I haven't yet read a convincing essay of why Brown v. Board was not judicially active, written, anyway, by a person that purports to ascribe to strict construction or a heavy deference to established precedent (ie- Justices Thomas and Scalia would, I assume, have to have written a dissent in the case, if they were to be intellectually honest with their judicial approaches).

North Carolina did what the federal courts have not and made a sound, basic education a constitutional right. The state Supreme Court put Judge Howard Manning in charge of overseeing that right.

Have a read of a column in my old town Greensboro's local paper.

Here's a snippet:

His actions border on exceeding his authority -- "judicial activism of the most blatant sort," John Hood of the conservative John Locke Foundation asserts -- but they may be the only way to force the state's disjointed education establishment to get its act together.

"This letter is to put you on notice," Manning wrote March 3 to State Board of Education Chairman Howard Lee and Superintendent June Atkinson. If consistently poor-performing high schools don't meet their goals on end-of-course tests this spring, they "will not be allowed to open in the fall of 2006" without significant changes.

2006-03-26T19:16:00.000-05:00

is mac the next microsoft?

good techno-patent article in wired. give a read. here's the gist:

So it may be convenient for me to get shows on demand, but this comes at a price. My TV is tied intimately to the Comcast DVR box I rent, and I lose some of my consumer rights (saving shows, watching them on a different device) so that the entertainment industry can protect its old business models.

Enter Apple, which may soon strike deals with the TV networks and video production houses that will see hundreds of TV shows, documentaries, music videos and so on, hosted on an iTunes music and movie store -- accessed only though Apple's software or hardware, like the Mac mini.

If such a scenario comes true, Apple will become more and more powerful as the gatekeeper to this content. And it will behave like every other big, powerful global corporation -- as a predatory monopoly.

There are few Mac users prepared to argue that Microsoft's monopoly in desktop PCs has been a good thing for the technology industry; why would an Apple monopoly of digital entertainment be any different?

2006-03-23T20:25:00.000-05:00

Is human jealousy the thing?

We've had a fun email discussion stemming from this article from today's Saletan Slate column. I've read more than a few opinion articles of late wondering aloud, if gay marriage is to be protected because of lifestyle choice and a respect for what consenting adults want in their lives, why would the reasoning not extend to polygamy (notwithstanding the line of fre exercise cases that turned down the legality of the interpretation of marriage some decades ago). Here's the thrust (quoted from Saletan's article):

My friend Charles Krauthammer makes the argument succinctly in the Washington Post. "Traditional marriage is defined as the union of (1) two people of (2) opposite gender," he observes. "If, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices," then "on what grounds do they insist upon the traditional, arbitrary and exclusionary number of two?"

Here's the answer. The number isn't two. It's one. You commit to one person, and that person commits wholly to you. Second, the number isn't arbitrary. It's based on human nature. Specifically, on jealousy.

From my reading, the point is this: marriage is a result of human jealousy. Not (though this has been a point of email debate) necessarily physical jealousy, nor even jealousy using the sense of the word that treats the object of jealousy as an object attained and not to be let go of. Rather (and I might be reading into this some combo of my thoughts and Saletan's), we are talking about a broader, even nobler, concept of jealousy.

Jealousy can be good. To make the quick point, imagine your feelings if your favorite other did not feel jealous upon noticing your seeming intimate touch with another person...or your moment letting someone else be your confidant. Don't we want our favorite someone to want to be the one that we go to...just as we want to be their's?

Jealousy, like food, can be unhealthy and dangerous. It is as such when, like food, we let it do something to us apart from nourishment and the fullfilment of a good life.

But doesn't jealousy remind us that some things are precious? Some things, like a newborn baby, we don't want to let go of. For the betterment of us all, sure, we have to balance our weaker nature and let a person be a person. But we don't leave our baby unattended long, we don't lose some grip on what we love.

To return to marriage: Saletan's point rings something true to me. Marriage is more about a one-on-one commitment and journey together than it is about whether the two people are a boy and girl. What is important is that is is THEM, and only them. Why not them = 3, 4, 5, or however many? Jealousy.

The good side of jealousy is an ingrained nature in us that simply cannot abide with our ultimate union being with more than one other person. And dangit, that just makes common sense to me. As soon as another WIFE would be required in my life, the unavoidable implication is that one wife could not be enough. And wife one for darn sure should be jealous.

Maybe jealousy is another word for our intuition that a bond is broken. Or, that we better do something in ourselves to improve that bond. And that...knowing that we are responsible for, indeed are, that duality, is marriage, partnership, couplehood.

speech and conduct

2006-03-20T08:40:00.000-05:00

When is conduct speech?

Brownstein and Amar step into the old debate of when/whether the first amendment protects conduct as speech. Read it here.

The column discusses the recent Solomon Amendment case dealing with whether law schools may refuse, under first amendment principles, to obey Solomon, which in turn requires the schools to provide access for military recruiters on campus.

The basic thrust of the opinion, written by the Chief Justice, is that offering access is not speech, and any association to the recruiters' message is incidental. (the objection from the schools was in not wanting to be associated with certain sex discrimination practices)

The speech/conduct divide is not a political divide, so far as I can tell. Some may want actions such as the colleges' protected, others want money donations protected.

I generally sympathize with those opposed to a strict speech line. It seems simplistic to offer the 1st amend speech protections to oral noise. But I am far from a decided line. Thoughts?

Free Jill Carroll

2006-03-15T14:06:00.000-05:00

Free Jill Carroll!

Foreign correspondent Jill Carroll was kidnapped Saturday, January 7 in Baghdad by a group calling itself Brigades of Vengeance. At the time of her arrest, Jill was freelancing for The Christian Science Monitor. Since her disappearance, the Monitor has engaged in tireless efforts to secure her release, and recently the blogosphere has been making aggressive moves to join the rest of the international chorus calling for her safe return. In particular, as the Committee to Protect Bloggers stated on its website Saturday, "Of greatest import are Iraqi blogs and blogs in the Arabic and Muslim worlds that may be read by people in a position to do good for Jill."

We at Owens Rhetoric salute the efforts ongoing around the world to bring Jill safely home, and add our voice to those condemning the kidnapping and calling for her prompt and unconditional release.

You can get continous updates on Jill here.

Here is a link to the public service video calling for her release, which is being aired across the Arab-speaking world.

2006-03-12T18:03:00.000-05:00

Two questions this week:

Are state tax incentives to corporations, designed to bring out-of-state business into the state, violative of the dormant commerce clause? I'm not sure why they would not be, save the everyone does it theory.

Is what Mohammed Taheri-azar did, in driving an SUV through a crowded area of Chapel Hill's campus, with the apparent (but thankfully failed) attempt to kill, "terrrorism"?

That first question we can get away with reserving for a bit later. The latter, I agree with my former professor on this one. "Terrorism" has a literal and a cultural meaning...as anything does, I reckon. The word's usage requires caution, then, lest we slip into unintentional broadification (my word) of the term. Certainly, we do not want every random act of violence being the subject of our current, still ongoing last I heard, war. (remember, war and typical crime merit different legal procedures)

In discussions thus far, I have noticed the hinge concept of differentiation between terrorism and random violence is political purpose. I'm not sure I can go confidently with this. What about the dingbat, and I am overwhelmingly confident of this, that performs some act of random violence for which a political purpose is ascribed; but for which, in reality, the only spur was the person's retardation, or some such mental problem. Say, for instance, a mentally inform person joins a cult, and then blows something else in furtherance of the cult's instruction? Political act or insanity? What if a person blows themself up, and then a group to which he had no affiliation claims the act? Terrorism or a random act?

Especially though, remembering we're in a WAR against this amorphous thing, we have a particular duty to not be fast and loose with ascribing terrorism without a great amount of caution. What if the SUV driver in Chapel Hill is a terrorist? Does he appreciate normal criminal law procedure...or do we send to Cuba and the dogs of interrogation?

argue please

2006-02-19T19:20:00.000-05:00

"...we need space for peaceful yet passionate outrage."

Deborah Tannen has a beautiful discussion of civic debative involvement up at the CSM (thanks, Lily, for sending the link). Tannen writes much more coherently than I ever could on what would be, in our more ambitious moments, our collaborative effort here at Owens Rhetoric--the search for a not-stupid public discussion. That thoughtful debate over public policy has whithered into prepubescent evoking talking points vacant of logic has now, I think, reached a decent universality of agreement amongst reasonable people. What we do about that, though, has been touched on less than a hot potato in competetive circles.

Tannen, who wrote of the problems of certain argument in her book, "The Argument Culture," observes the American rhetorical crisis and calls for more argument. In detailing the method of how we should debate, she is exactly right.

Her key point is to distinguish what she calls "agonism;" that is, "ritualized opposition, a knee-jerk, automatic use of warlike formats."

Agonism grows out of our conviction that opposition is the best, if not the only, path to truth. In this view, the best way to explore an idea is a debate that requires opponents to marshal facts and arguments for one side, and ignore, ridicule, or otherwise undermine facts and arguments that support the other side.

Here is a healthy taste:

With all the shouting, we have less, rather than more, genuine opposition - the kind that is the bedrock on which democracy rests.

...

Many journalists prize two types of agonism: One is the valuing of attack over other modes of inquiry, such as analyzing, integrating, or simply informing. The other is a seemingly laudable search for "balance," which results in reporting accusations without examining their validity.

Expressing passionate opposition to - even hatred for - the policies of elected officials is a legitimate, necessary form of engagement in public life.

...
Attacks on an opponent's character distract attention from the issues that will be decided in the election. Attacks on an opponent's proposed and past policies are appropriate; we need more of such attention to policy.

...

This downplaying of genuine opposition is mirrored in our private conversations. In many European countries, heated political discussions are commonplace and enjoyed; most Americans regard such conversations as unseemly arguments, so they avoid talking politics - especially with anyone whose views differ, or are unknown, lest they inadvertently spark a conflict or offend someone who disagrees.

As a result, we aren't forced to articulate - and therefore examine - the logic of our views, nor are we exposed to the views of those with whom we disagree. And if young people don't hear adults having intense, animated political discussions, the impression that politics has no relevance to their lives is reinforced.

In sum, we are overfocused on 'knowing' the attack-like back and forths of a public policy discussion. The sources of the problem and the focus of remedy are multifaceted. The media, of course, is rightly to blame because its irresponsible focus on stupidity and its refusal to fact check. But we really can't do anything about that save look in the mirror. To the extent we demand more thoughtfulness, we have to be ourselves more thoughtful. There is exactly one way to do this: divorce ourselves from preaching to and listening to our own choirs. Do that, and the worst of our news sources die (sorry about that, Rupert and Randi).

One more paragraph from Tannen:

A single-minded devotion to "balance" also creates the illusion of equivalence where there is none. For example, as shown repeatedly by journalist Ross Gelbspan as well as in a recent article by Maxwell and Jules Boykoff in the academic journal Global Environmental Change, news coverage of global warming actually ends up being biased because news reports of scientists' mounting concern typically also feature prominently one of the few "greenhouse skeptics" who declare the concern bogus. This "balanced" two-sides approach gives the impression that scientists are evenly divided, whereas in fact the vast majority agree that the dangers of global climate change are potentially grave.

let it

2006-02-19T19:08:00.000-05:00

it snowed, then was maytime weather, and now cold as a witche's again. what gives?

Who's Afraid of Unenumerated Rights? (Lily)

2006-02-12T20:53:00.000-05:00

Who's Afraid of Unenumerated Rights? (posted by Lily after conversations with Andrew)

"Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted and what protection they do receive is subject to intense criticism. . . . [A]ll liberty may be reasonably regulated (as opposed to prohibited), and that we need ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others."

This is part of an abstract from a paper by Randy Barnett, ideas from which formed the basis for a talk he gave at U Penn Law School this past Friday. APO has a distaste for Barnett's originalism (he says it's "bunk"!)... Nonetheless, overall I think the concept of numerated versus unenumerated constitutional rights is a fascinating topic. The rough outlines of the controversy are these: the Federalists, who formed the majority of the original authors of the Constitution, wanted to found a government based on the premise that the people are sovereign, and any power that the government holds, it holds only by the consent of the people. Therefore they envisioned the Constitution as a document that listed the various things the people allow the government to do. Anything not on the list, the government can't do -- the residual power lies in the people. From this perspective, the Constitution was complete without the Bill of Rights: for example, the Constitution doesn't mention that the government has any power to make an establishment of religion, so we don't need to TELL the government it can't do so. Similarly, there's no point in telling the government that it can't restrict the freedom of the press, since the Constitution doesn't ever bestow that power upon it.

Immediately following the ratification of the Constitution, though, the Anti-Federalists proposed the first nine amendments of what we now call the Bill of Rights, a document that, under the Federalists' theoretical framework, was manifestly unnecessary at best. The Anti-Federalists conceived of government in diametrically opposing terms: the government has whatever power the people don't reserve for themselves. Naturally those of this persuasion were terrified by the original Constitution without the Bill of Rights attached -- it seemed like a carte blanche that placed virtually no restrictions on governmental power at all.

The main body of our Constitution thus stands as theoretically inconsistent with its first nine amendments. From a Federalist perspective, the first nine amendments were not only useless, but dangerous: if the federal government has free rein to do anything NOT listed in the Constitution, there's no telling what amount of tyranny it might come up with! The drafters can't be expected to think of everything ahead of time and enact zillions of provisions in an attempt to ward off future politicians' power grabs! Thus, we have the Tenth Amendment, enacted December 15, 1791, which was an attempt by the Federalists to recapture the upper ground in the battle between the competing intellectual frameworks:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Whether it was the Federalists or the Anti-Federalists who ultimately gained the upper hand, is hard to say. On the one hand, the US Supreme Court has used the Bill of Rights to construct an elaborate system of jurisprudence that touches all of our lives -- freedom of speech, freedom of religion, freedom of the press, due process. It might have seemed unnecessary to some in the early days of the Republic, but today it has become a cornerstone of our national identity. On the other hand, Americans have preserved throughout the centuries an inherent distrust of "big government." It's a topic that comes up in every Congressional and Presidential campaign to this day. Other countries, such as Canada and Great Britain, don't share the American distrust -- in those countries, sovereignty traditionally flowed from the Crown, and the people hold whatever rights they have by the grace of the government. (Obviously the modern world has mitigated the effects of this, but bear with me...) These nations were not founded on the concept of sovereignty residing in the people, and the public in those countries tends to be more comfortable with the concept of big government. Witness their national health care systems and other manifestations of socialist leanings.

Personally I kind of enjoy the tension inherent in our Constitution -- kind of for the same reason I think it's good to have the Executive and Legislative branches in Washington to be controlled by opposite parties. Keeps everyone on their toes, and gives the delicate balance of power the flexibility to make minor adjustments depending on the needs of the moment.

OR Reading Circle

2006-02-01T23:24:00.000-05:00

OR Reading Circle (posted by Lily)

Our latest reading project at Owens Rhetoric encompasses two books:

Discipline and Punish: The Birth of the Prison by Michel Foucault (1975)

Surviving Justice: America's Wrongfully Convicted and Exonerated, edited by Lola Vollen and Dave Eggers (2005)

Please feel free to read along with us and/or join in with your comments! Meanwhile, here are some of our initial thoughts.

LILY:
In his first chapter, Foucault talks about how the body has increasingly disappeared as the major target of penal repression, and punishment has become the most private/secret part of the justice process. I was thinking about how perfectly Foucault's observation reflects what the first couple of guys describe in the Eggers book - that the worst part of prison, especially death row, is the loneliness; and 2/3 of prison suicides occur in solitary confinement situations. In writing about the paradigm shift from punishing the body to punishing the soul, Foucault writes that, instead of inflicting physical pain, the new trend has been "to supervise the individual, to neutralize his dangerous state of mind, to alter his criminal tendencies."

What's interesting to me here is how this program of "neutralizing the dangerous state of mind" works out when the state of mind you're attempting to neutralize is not actually dangerous - as would be the case for the wrongfully convicted. What happens to an individual when you embark on an aggressive campaign to "alter his criminal tendencies," but he doesn't HAVE any criminal tendencies? To use religious terminology, it's an interesting exercise in futility to try to purge a mind/soul of sin when there is no sin in it.

Hey, and also -- who do y'all think Foucault is talking about when he mentions the "minor civil servants of moral orthopaedics" who thrive on the shame that inflicting punishment causes? I thought it was an interesting turn of phrase.

ANDREW:
My initial response is that it is simply a bummer. Wrongful imprisonment is simply that.

I reckon, though, your question rests its inquiry on the further question of what is happening in the prison. Is it to correct a
criminal propensity? Or to punish?

That, as it turns out, is my question after reading most the first Foucault chapter. His main thrust is that the Justice system disassociated itself from the body. It became something that found guilt, but then ushered over the punishment to administrative entities. It seemed the example of the guillotine was the perfect illustration here . . . that this was the moment where the State became hardly involved with the Punishment. Switch a lever, and hands are clean.

Still, Foucault asserted a few times in the initial chapter that the State still imposes bodily punishment, doesn't he? I carried away a point about ANY deprivation of body was still a state's hold on the body. We limit liberty of movement, food, intimate relations, and so forth. I was hoping to get this clarified. What is his final point on the state/body. It seems to be that Justice has moved from the public spectacle, but that the hold of the body somehow remains?

LILY:
When he poses the question, what would non-corporal punishment look like?, I guess he's getting at the point that we don't have any other way to access the soul, as it were, except through the body. So, any attempts to punish/correct the SOUL must necessarily be done by doing something to the BODY, e.g. solitary confinement, restrictions on liberties, etc. Maybe that's sort of why he says that all punishment, no matter how mental a level it is intended to take place on, must retain a kernel of physical torture.

heurich house

2006-01-30T08:51:00.000-05:00

reviving the gothic revival

Back in the last decade of the 19th century, local DC brewer, Christian Heurich, built his gothic revival, late-Victorian house in Dupont Circle. The house was, and is, called the brewmaster's castle as Mr. Heurich remained a brewer until he passed, as the world's oldest brewer, at age 102 and a half. Apparently, Heurich's relatives started up the local Foggy Bottom lager with a brewery that stood where the Kennedy Center now resides.

The house is now the most intact late-Victorian house museum in the United States.

Some hundred and 10 years after it was built, the brewmaster's castle still makes headlines. It was featured, and the interior museum's continuance was urged, by DC's verion of the ist-blogs, DCist. The photo here is from their Mike Grass.

Also, some 110 years after it's inauguration, I moved across the street. That's actually my apartment, the beautiful neo-boxonian mid 80s looking construction in the lower left. Here, here, Heurich House. Thank you for sitting pretty outside my bedroom window.

Constitution-Making in Action (Lily)

2006-01-26T14:53:00.000-05:00

Constitution-Making in Action; Lily

This is a link to a blog entry by Dan Murphy, a reporter in Baghdad, where he talks about what he sees as the disparity between the high ideals for personal rights and liberties outlined in the Iraqi Constitution, and the living conditions of present-day Iraqis, who put up with unexpected, warrantless raids on their property, private armed militias, and getting kicked out of their homes by US soldiers who are conducting urban warfare.

It's a fascinating insight into one of OR's working hypotheses: that a nation's constitution can be a living, breathing, dynamic document, but only insofar as the body politic (or what Mr. Murphy calls the "political culture") is able to embrace it and find it workable.

the dc national anthem

2006-01-25T19:22:00.000-05:00

The DC Olympic team.

We have no real representation in Congress. We have taxes. We have no representatitve team at the Olympics. We have petition to create one.

And i quote:

Please take a minute, and use the form to the left to send a message to the International Olympic Committee. We need them to support our efforts to field an Olympic team for the District of Columia. They've approved teams for the other territories of the United States, like Puerto Rico, Guam, and the U.S. Virgin Islands, why not DC?

Sounds good to me. And a bit more attention than the little "Taxation without Representation" licenses.

--------------------

And speaking of awesomeness here in DC. Mark Jenkins pulled off a wonderful new tape project - lollipop parking meters.. See more at Wooster.

Andrew #2 on Sov Imm

2006-01-25T08:55:00.000-05:00

Andrew #2; Common Sense?

I recognize the historical rooting of state sovereign immunity, and that the principle was an unspoken backdrop against which the Constitution was framed. So, despite it being a completely unenumerated principle, except for the immunity of a state against suits from citizens of other states (11th amend), I don't think it jurisprudentially erroneous to allow the principle of state sovereign immunity into the argument. Otherwise, anyway, there would be no argument, right? Without the super-precedent of state sovereign immunity, Katz is and open/shut bankruptcy law case, and the only question is what already-distributed funds the administrator can collect.

I've always thought that, when considering most legal questions, one can apply common sense to guess at what the outcome will be; and then the legal analysis eventually catches up and arrives at the same result. For instance, when people get hurt, blame and distribution of costs for treatment can be very difficult to determine. Common sense tells us, if you should have avoided the hole, then you can't blame someone else...and sure enough that is the basic legal principle.

In any event, here: this bankruptcy case simply doesn't seem an appropriate place to assert sovereign immunity.

The rationale for maintaining sovereign immunity, in my mind, is the need to allow government to govern. The overwhelmingly consequential decision-making that government officials must perform is simply in a different field from the day-to-day private actors for which the legal system is built. The Constitution and state constitutions provide the rules for governments, and finding violations of those rule-books is the legitimate way to legally challenge fed/state/local governments.

But with this bankruptcy case, none of the above principles apply. The state universities simply got a check from a failing bookstore company...and, so far as I can tell, none of this had anything to do with governing. So why in the world should the state universities be treated differently from any other entity to whom the bookstore company distributed money in its last throes?

The majority decided that, during the Constitutional convention, the states ceded their otherwise immune status in the specific field of bankruptcy suits. Forget for a moment the precedents between us and the convention. Doesn't it simply make sense, if the Constitution contemplates a system wherein federal officials take control of what happens when a person goes broke but still has debts, that the system would be entirely silly if certain actors (states) that are quite certainly often involved in bankruptcy issues/debts/credits/finances* are simply exempt from the game? I just don't understand allowing such a glaring loophole. Oops, I'm going bankrupt. Well, might as well shell what I have out to my favorite state official as opposed to letting some judge collect and distribute fairly.

Commentators seem most perplexed with the squaring of Katz to Seminole Tribe, a case that would seem to disallow the result in Katz--holding that the 11th Amendment prevents Congress, acting pursuant to its Article I powers, from abrogating a state's sovereign immunity by subjecting it to suit in federal court without its consent. I don't think this is really the case. Seminole dealt with one provision, the Indian Commerce Clause; the stretching of 11th amendment into ALL of article 1 seems to me 1) simply dicta; and 2) classic judicial activism (my definition: wanting a result and getting it in spite of wisdom and intellectual honesty...that, and ignoring Congress and legislatures).

It seems to me the 11th amendment does what the 11th amendment says: citizen in state X can't sue state Y. Any further sovereign immunity must come by way of it being a bedrock principle built into the Court's precedent. In that context, I see no reason why not to take the approach of contemplating the common sense implications of writing and signing off of the bankruptcy clause.

A footnote in the Seminole addresses bankruptcy:

[a]lthough the copyright and bankruptcy laws have existed practically since our nation's inception . . . , there is no established tradition in the lower federal courts of allowing enforcement of those federal statutes against the States.

This opens a whole new bag of discussion, so I will only iceberg tip it for now: I get occasionally mystified by what I will call the established tradition fixation. This seems like a weird form of Constitutional relativism. If there was a tradition of something, it's cool? How about: if it's right/wrong, it is right/wrong. Either the framers contemplated surrendering state sovereign immunity on favor of a fair bankruptcy policy or not. If established tradition is another name for super-precedent, I am further confused. The proponents of established tradition jurisprudence, then, need another name; like, something can be super-precedent if people 200 years ago did it?! More on that sometime later.

*States play a major role in the bankruptcy process, appearing in many bankruptcy cases in a myriad of roles -- as priority tax creditor, secured creditor, unsecured creditor, police and regulatory authority, environmental creditor, landlord, guarantor, bondholder, leaseholder, and equity interest holder. Similarly, a debtor may have a number of potential actions against a state, including a stay violation, preferences, turnover of property, and lien avoidance.

Lily's Response #1 to Sovereign Immunity Discussion

2006-01-24T13:55:00.000-05:00

Lily's Response #1 to Sovereign Immunity Discussion

The majority opinion in Katz holds that the 50 States consented to be sued (i.e. they waived sovereign immunity) when they signed off on the clause in the US Constitution that provides for a uniform bankruptcy system - i.e., essentially, when they consented that bankruptcy would be federal law, not state law. I find this to be a very odd rationale.

Sovereign immunity (the concept that the government cannot be sued) is an ancient common law principle dating back to Merry Olde England, where traditionally private subjects of the Crown could not sue the Crown. The default rule, ever since those days, has always been that governments cannot be sued; but, as everyone knows, this can sometimes lead to rampant injustice. So, legislatures, including the US Congress and most state legislatures, have enacted various bills listing situations where the government consents to be sued: for example, most states and the federal government have some type of Tort Claims Act, which gives citizens the ability to sue, for example, when a squad car runs over an innocent bystander in a police chase. There are other situations where states consent to be sued, too - a prominent example in Andrew's and my home state of North Carolina is that whenever the State purchases liability insurance, and the insured-against risk turns into an accident, the State can be sued (and, hopefully for the plaintiff, the insurance company will pay out rather than have to defend a lawsuit).

Generally speaking, the State can nowadays be sued whenever the liability-imposing action is the kind of action that a private citizen can do. Examples: a private citizen can run a bookstore or hire a contractor to build a building. A private citizen cannot, however, maintain a standing army or police force, or administer a judiciary. So if a lawsuit were to arise because a State breached a construction contract, then sure, it can be sued. But if the police, in the normal course of their jobs, arrest the wrong person, the police can't be sued for that.

As for cases when it's not clear whether a private citizen could engage in the sued-upon action (and there are lots!), courts have generally construed statutes waiving sovereign immunity narrowly. NARROWLY. The presumption is that a state is not going to waive its sovereign immunity lightly, or through ambiguous wording; if the statute doesn't clearly waive, then there is no waiver. That is why this Supreme Court majority opinion seems to me to depart from precedent; it says that the States impliedly waived sovereign immunity when they signed the Constitution which included the bankruptcy clause.

Katz- State Sovereign Immunity

2006-01-23T21:35:00.000-05:00

No vacination for the states

Today, the Court issued a 5-4 decision in Central Virginia Community College v. Katz, holding that States do not have sovereign immunity to suits by bankruptcy trustees seeking the return of preferential transfers under the federal bankruptcy act. Justice Stevens wrote the majority, joined by Justices O'Connor, Souter, Ginsburg and Breyer.

The petitioners were Virginia universities that did business with a bookstore that went bankrupt. While going down (while it was insolvent), the bookstore paid off debts to the universities.

In normal bankruptcy law, a court-appointed supervisor sort-of collects whatever hodge-podge of assets the bankrupt entity has/had, and distributes them in the fairest fashion, according to certain legal requirements. Often, this distribution to creditors involves reaping in some of the assets/$$ that the now-bankrupt entity shed out while going down. In other words, an insolvent entity can't shell out whatever it has to the detriment of folks that are due a fair share of what they'd loaned.

Here, since it was state universities that benefitted from the bookstore's assets-shelling, the universities claimed immunity from the bankruptcy administrator's request to have the money returned to the pot. State universities are arms of the state, and thus are allowed any immunity from lawsuit (for our purposes, the administrator's request is a lawsuit) that the state would have. Thus, the legal question is whether states are immune from normal bankruptcy administration. For states to be subject to suit, they must waive the existing (existing...this is a discussion that will haunt us for a bit, i believe) immunity. In a great many statutes, states do just that. In this case, the Court concluded that the states waived their immunity in bankruptcy proceedings while ratifying the Constitution, with it's Article 1 bankruptcy clause.

Sovereign immunity, as an area of jurispruence, reminds me of American Idol. It violates our sense of decency and what is right in the world, but we keep coming back. I think of the libertarian tendency to sue everything a government agency attempts, from preventing emissions to chewing big red. But they champion a state's immunity. Or the pure textualist that can't figure out where, in the Constitution, a right to privacy is enumerated. But, they find somewhere (in invisible ink?) words in the 11th amendment making a state immune from it's own citizens' suits. Most appropriate to the stretched analogy above, the relationship of state sovereign immunity to democracy has fair weathered legitimacy.

Here, for instance, it simply makes no common sense to me why the state ought to be treated differently that other creditors to the bankrupt bookstore.

On the other hand, the immunity of the sovereign is a bedrock principle...that the governing body is outside the lawsuit reach of the governed. Accountability is supposed to find manifestation in elections, not courts.

crossroads of administration law and federalism

2006-01-17T22:59:00.000-05:00

Crossroads of Administrative Law and Federalism

Today's decision in Gonzales v. Oregon overturned a Justice Department interpretive ruling barred doctors from prescribing lethal drugs for suicides, in light of a law in Oregon allowing such practice. It is nearly purely an administrative law decision; however, the federalism principles sit on the sidelines of this one like Jack Nicholson at a Lakers game.

Quickly, a summary:

The legal question is whether a certain DOJ interpretive rule has any legal authority. The Controled Substances Act was inacted to combat drug abuse and control legitimate and illegitimate traffic in controlled substances; and criminalizes unauthorized dispensation of substances classified in any of its five schedules (classifications of drugs). The Attorney General may add, remove, or reschedule substances only after making particular findings, and on scientific and medical matters, the AG must accept the findings of the Secretary of Health and Human Services (Secretary).

An Oregon law exempts from civil or criminal liability a doctor who, compliance with the law's safeguards, dispenses or prescribes a lethal dose of drugs upon the request of a terminally ill patient.

In 2001, Attorney General Ashcroft issued an interpretive rule declaring that doctor-assisted suicide serves no "legitimate medical purpose" under federal drug control law, and that doctors who prescribed lethal drugs for this purpose risked their registration to prescribe drugs for their patients.

Interpretive rules are sometimes binding and sometimes not. To step back a moment, we must remember that government agencies have power only as given by their originating statutes; otherwise, non-elected regulatory bodies would replace the Constitutional system of a representative republic. So Congress enacts some piece of legislation in general terms, and then agencies take care of all the specifics. An agency is bound by the Act that directs it.

Of course, legislation is usually blurry on the corners, and agencies necessarily do some interpreting of the law. This is fine, if the interpretation is reasonable. What agencies cannot do is rewrite the law where it is unambiguous.

Here, the Court found that the Attorney General overreached the DOJ's authority under the Controlled Substances Act. Congress delegated to the Attorney General only the authority to promulgate rules relating to "registration" and "control" of the dispensing of controlled substances. "Control," under the statute, means "to add a ... substance to a schedule," following specified procedures.

"Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally....The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the State's police powers."

So. A read of this case is a good review of judicial deference to agency interpretations. I think the majority is right on the law, and that it is a fairly straightforward case. We can talk about the Scalia/Thomas/Roberts dissent later. I've read it and, surprise surprise, am not convinced.

Stepping away from the clear legal question, though, it is too easy to note the federalism issue involved (noting, all the while, that to have considered the federalism principle in deciding the case would be the height of judicial fault). We have, though, a federal agency versus the popular will of a state (an Oregon referendum overturned even it's own legislature to uphold the state law). Should an unelected federal official (here, Ashcroft) be able to nix a state's considered opinion? Is that what we want? (I don't answer these questions. I ask them.) (Typically, my answer these days is yes and no. More on that, sometime).

Stepping away from the actual legal question in the case concerning agency interpretive rules, all the policy issues bound up in the case are federalism principles. Take, for instance, the question of whether assisted suicide for terminally ill patients is legitimate medical practice. Is it? Does prescribing death take a doctor outside the practice of medicine? If so, what about doctors that advise families to transfer a patient to hospice care? The end of life, like it's beginining, is a powerful scientific and moral issue with which many thoughtful people wrestle and disagree. Should an unelected, single individual make that decision in an interpretive rule? Or should we allow different states to consider the issue?

Side note: Some folks are bringing up the medical marijuanna case where the Court allowed the federal government, under the commerce clause, to disallow California's law allowing medical marijuanna. In that case, though, there were specific congressional statues making even medical marijuanna illegal. Here, the Controlled Substances Act in no way addresses assisted suicide.

nye

2006-01-10T00:22:00.000-05:00

playing auld lang syne.

?

2006-01-09T20:51:00.000-05:00

Anyone got a good argument for why the truth/fiction of this dude's story matters?

At least momentarily, the online Times cover story is that author James Frey seems to've richly embellished his "memoir," A Million Little Pieces. The bestseller is about a man's rough life of jail, overcoming addiction, and so on. And now there is an apparent hubbub that the author didn't live out all the experiences in the story.

So what? Why is this news?

K. So here's what came to mind while looking at this artcle. We have a truth/belief/something problem. The problem for so many with the revelation that this author didn't actually live through the purported experience is not the falsity of his account; rather, it is that the readers' sense of what happened is disrupted. The only real affect this story being false or true has would be if the author's point has some stake in it actually happening...like a ufo account, or a cure to cancer.

So why does a meaningless falsity raise such a bother?

We have a peculiar relation with knowledge in present society. We seem to want some conclusion on things, but we don't seem too bothered with a careful search. Reflect upon our opinions of the private lives of celebrities, the guilt or innocence of defendants based upon scant gossip (ie, modern media), even, sometimes, our own sense of being. In trials. we have an entire set of rules by which we observe purported facts- and the full purpose of those rules is to offset human fallibility in the manner in which we receive information (we have forgone conclusions, we remember things differently, we tend always to live in assumptions). And so, we've set up an entire system based on two people presenting two sides of a story as best they can, and bound by certain rules of presentation, to allow the jury to come to an answer of what happened.

But life outside is the full opposite. We sit cozy with our opinions of Michael Jackson, OJ Simpson, ladies with McDonalds coffee, and the mindset of Presidents without any concern for the truth. What to call this? We are a society of opinions mistaken for truth.

Normally, once a posiiton is held popularly, society refuses reflection. OJ, the coffee, it is all set in stone popularly. So was this guy's story of drugs, jail and redemption. When popular society is forced to see that it was hoodwinked, the uneasy reckognition of the vulnerability of knowledge causes a massive stir. And it is a stir we generally tend to avoid. See ,for example, the dragged out recognition of faulty Iraq statements, and the continued insistence that Congress and the President made decisions with the same information. Or note, to be fair, the ease with which we simply ascribe stupidity or evil to the administration's policies.

Opinions are fine. Opinions without the vulnerability of attempted knowledge, though, will lead to the full on stupidity of our Nation.

Christmas with grandma

2006-01-02T19:17:00.000-05:00

It was good to be back in North Carolina for Christmas.

Lily goes whale watching

2005-12-29T09:37:00.000-05:00

[ed. note; Lily emailed to me the remarks below, during her visit to New Zealand]

Notes from an American Down Under, by Lily
28 December 2005

"And God created great whales, and every living creature that moveth, which the waters brought forth abundantly . . . and God saw that it was good."
Genesis 1: 21

It struck me this evening that, at least in my KJV, whales are virtually the only specific animal species mentioned by name in the first chapter of Genesis. I spent my morning today whale watching off the east coast of New Zealand's South Island - and after that experience, it doesn't seem to me that it was an unusual choice to single out these magnificent creatures for special mention in the Bible's first account of creation.

There's an indescribable joy in seeing a whale break the surface of glassy water at dawn, after his long rise towards the light from his feeding grounds on the dark and distant ocean floor. My sister and I, along with our fellow passengers, would watch quietly as each whale would rest several minutes near the surface of the ocean, breathing deeply to send the vital oxygen into his bloodstream. After a while, when he had gathered his strength, he would slowly rock himself forwards and back, gaining momentum for his next dive. Then he would arch his back and descend, almost perfectly vertical in his progress to the bottom. Our last glimpse was always the graceful sweep of the powerful tail, spectacularly outlined against a backdrop of snowy mountains and a vast expanse of ocean, rose tinted in the pure morning light. As each whale sank beneath the calm water, on his way to a depth equivalent to the height of three Empire State Buildings, I felt a renewed sense of awe, and could not but stand in silent wonder and reverence before the beauty of the natural world.

The guide told us that these ocean cruises average one to two whale sightings per voyage, but we received a gift of no less than ten sightings in two hours - all adult male sperm whales, each measuring fifty feet long or more. It was a truly lovely and humbling experience. If anyone out there gets the chance to go whale watching, I would strongly suggest you make the most of it! 2005 has in some respects been a challenging year for me, but this was a peaceful and purifying way to bring it to a close.

Happy New Year, everyone!

conspiracy

2005-12-12T21:38:00.000-05:00

Let those Conspiracy's flow

Lily was good enough to email an article this morning, "On the Hunt for a Conspiracy Theory." She knows and I think kinda agrees, that Amusing Ourselves to Death, from Neil Postman, is one of the great, prescient books on the culture and context of American news reception. It's point in 17 words: Brave New World has come true, and its a manefestation is we don't velnerably search for knowledge.

I 65% like the article's opening thought:

Conspiracy theory has captured the public imagination. Often we are less interested in what politicians say or do than in attempting to decipher the hidden agenda that motivates their behavior.

95% this one:

No sooner was Harriet Miers nominated before rumors suggested that President Bush used her as a fall guy whose failed nomination would make it more difficult for liberals to discredit her more conservative replacement.

and 100% this one:

The simplistic worldview of conspiracy thinking helps fuel suspicion and mistrust toward the domain of politics. It displaces a critical engagement with public life with a destructive search for the hidden agenda. It distracts from the clarification of genuine differences and helps turn public life into a theater where what matters are the private lives and personal interests of mistrusted politicians.

There are those thoughts, though, that reap in below the 60%s. The author touches on equating "hidden agenda" with "conspiracy." He also grazes against, seemingly, a conclusion of anti-skeptisism.

I'm not sure he intends these, though. That last quoted paragraph calls for what anyone I'd respect thinks: we ought to engage in a careful search to clarify genuine differences in thought. Double entendre there, please note. There are real differences in or conclusions on how best to make things work, and what goals to pursue. If we're going to get anything done, and avoid being completely stupid citizens, it's time we recognize that most of us are also genuine people, that don't peel off human faces to hide the Garkutan the Puppy Eater underneith.

Peeling away from the comfort only in our choir political views, and shedding our repubs/dems are evil/decency-destroyers assumptions can do alot, really, for our own positions. How many people, really, are you going to convince when you first convince them you don't get their position. Reasonable people can differ about 99% of the crap we talk about, for instance, on this website.

That said, not looking for the back stories and undecurrents to political positions, as I seemed to hear whispered in this article, is hardly the appropriate response. Indeed, it is just those backstories and undercurrent thoughts that we need to identify. What the author meant to stress, I really think, is the process in which we do so. It ought to be a vulnerable and fairly unassuming search for the undergirded belief that places a person on position X.

And all that said, I don't think it's necessary to invent for someone a noble and earnest reason for a policy position. Or that it is irresponsible to point, say, to interest in gaining money as a motive for action. There are such things as BS PR spins put on positions intended to wad someone's pocket. Just as there are some simply idiotic solutions offered to the problems of our world. The earnest and vulnerable search doesn't mean we have to ignore reaosonable conclusions. Some folks are just mean and greedy. We just have to come to that conclusion properly.

holiday shopping

2005-12-04T19:06:00.000-05:00

Linus, I mean, Richard Cohen, offers a comment in today's Times on an apparent to-do amongst some involving anger at dubbing this present season the "Holiday" season...as opposed to Chrsitmas.

Mind you, I am a sucker for the Holiday/Christmas season. I love the Charlie Brown and Frosty and Rudolph specials. I love walking around city streets with warm lights littering the trees. And I love buying stuff to wrap up for my family. None of that, though, carries any religious metaphysical meaning for me. Metaphysical, yes...as I treasure the societal appreciation of family and the general unabated sentimentality of the times. By 'none of that,' I ought to specify: the commercialized aspects. I love it, but it is segregated from anything religious. In short, I slurp up the commercialized season...while also appreciating the deeply meaningful religious meaning potentially found in late December.

What all is my point? If Cohen acurately points to some kind of movement to replace Holiday Season with Christmas season, a sort-of anti-PR thing, then I agree with him. His point is that some groups seem to be wanting to more closely associate the Coke-born theme of Santa Claus with Christ's birth. Such a movement is, quite frankly, antethetic to any meaningful search, in my mind, for Truth.

Berenstain Bears

2005-11-29T19:38:00.000-05:00

I grew up on the Berenstain Bears

Godspeed, Stan.

criminal justice

2005-11-23T09:29:00.000-05:00

Quick Thought; fatal damage to our justice system

The Times has a story out today about Steven Avery. The man was released, after 18 years in prison, because DNA evidence showed he was wrongly convicted. Last week he was charged with murder.

The Times reports that this series of events may spell trouble for groups, such as the Innocence Project, that seek to verify convictions with DNA evidence. What strikes me is this tagline to the column, on the front page of the web site:

Steven Avery has left all who championed his cause facing the uncomfortable consequences of their success.

Allow me to submit that the sentiment represented in that sentence does violent harm to our system of criminal law.

A trial in criminal court is about the crime that the defendant is convicted of doing. It is not a referendum on the person. And to the extent we allow the trial to lean towards the latter, we further pervert the fairness and nobility of our justice system.

A criminal trial rests firmly as a pursuit of the facts leading to and within the crime. Imagine the alternative: we lock people up because we do not like them. Maybe they are social outcasts; maybe they appear dangerous; maybe they spoke out too much against a prominent figure. Our system works because it stubbornly demands precision and caution in its process.

The Times tagline turns all this on its head. The subtext suggests that allowing people like Avery to walk, upon a finding of innocence in this case, only allows him to commit a crime elsewhere.

Think about that...this man will commit another crime, so what if he didn't do it this time, you know he'll just do something when he gets out...let's keep him locked up.

That is not the country I live in.

prewar

2005-11-22T17:20:00.000-05:00

This is the most important article in the debate on prewar intellegence.

I often assert that reasonable people can differ on points of debate. But, on the question of whether the Administration and Congress looked at the same intellegence before the Iraq war...as if they all hunkered around the table and agreed on the path to war based on the information laying below each of them...there is no debate. That claim is false.

Even though the claim keeps being asserted by our President and Vice President and all the spinsters on down.

Read here.

thucydides

2005-11-10T08:44:00.000-05:00

Thucydides, on the degeneration of society wrought by war.
These words discuss the general loss of civil discussion caused by entering into war. I would extend that into a figurative war...wherein the purpose of debate becomes only to achieve a victory over the other party.

Or, perhaps, we can think of the "war," that has the below enumerated effects on social rhetoric, as the elongated and ultimately quietly mummering wars that we have lived under for decades...the cold war ,the war on drugs, the culture war, the war on terrorism effected under Bush I, the war on terror began after September 11 2001. In this respect, there has always been something to which rhetoricians can point and accuse the other side as not uniting against, not defeating, not being patriotic against what is purportedly a known enemy. This object of war, then, becomes a flexible straw thing upon which base rhetoric is hanged. Read Thucydides, speaking of public deliberation in Athens during the war with Sparta (it lasted 30 years):

Practically the whole of the Hellenic world was convulsed, with rival parties in every state--democratic leaders trying to bring in the Athenians, and oligarchs trying to bring in the Spartans...To fit in with the change of events, words, too, had to change their unsual meanings. What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one's unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action. Fanatical enthusiasm was the mark of a real man, and to plot against an enemy behind his back was perfectly legitimate self-defense. Anyone who held violent opinions could always be trusted, and anyone who objected to them became a suspect....As a result...there was a general deterioration of character thoughout the Greek world. The plain way of looking at things, which is so much the mark of a noble nature, was regarded as a ridiculous quality and soon ceased to exist. Society became divided into camps in which no man trsted his fellow.

Words had to change. I take away, from this, that war (amongst other things, I'd argue) causes defensiveness and the loss of a willingness to be vulnerable. This lesson, really, isn't new. The more defensive we become, the more closed and harsh our rhetoric gets. To get anywhere in public discussion, we need vulnerability.

Another historic note, jumping forward a few centuries from Thucydides: Early Christians, of course, considered themselves Jewish. And Judaism, in the first century, had a great deal of sects. It was only after Rome really closed in that Judaism tightened up and what would become known as Christian belief was no longer allowed within the fold. I find something similar, here. The closing off resulting from a defensive posture.

Lily's Reflections on Environmental Catastrophe

2005-11-03T23:07:00.000-05:00

Reflections on Moral Responsibility for the Destruction of the Environment
(Lily)

It's official: the Arctic ice cap is melting at a rate of 8% per decade. At that rate, there will be no ice at all during the summer of 2060 -- well within the expected lifetime of many OR readers. A cursory survey of other recent environmental statistics reveals additional frightening numbers: In 2004, America's beaches alone experienced nearly 20,000 pollution-related closings and advisories. In the past 50 years, 90% of the oceans' largest fish -- such as sharks, swordfish, tuna, marlin -- have disappeared. And although the underlying causal elements are unclear, no one can doubt that Atlantic hurricanes are increasing in number and ferocity. This list could go on.

When human-induced tragedies occur, whether the ultimate harm is borne by other humans or by the environment, moral responsibility can be hard to assign. And the repercussions of assigning it can resonate for generations -- as, for example, certain elements of modern day German and Japanese culture still struggle to incorporate into their national consciousness the role that their countries -- and their citizens -- played in World War II. America, especially the South (where Andrew, Mike and I call home) is, to this day, still reeling from the legacy of legalized slavery that officially ended almost 150 years ago. The problem of where to place the blame for massive tragedy of any scale is compelling; even more compelling, to me, is the question of who can prevent that type of tragedy before it ever happens, and how.

The need is for a shift from a vague sense of collective societal responsibility for disaster, to a sense of individual responsibility: we need -- I need! -- to make a more direct connection between (for example) the decision about how to get to work in the morning and the issue of whether, 55 years from now, there will be ice in the Arctic. I know there's a lot that's been written about the economics of this, the problem of waste and depleting collective resources, and would be delighted if someone more educated than I am in these matters would chime in on that stuff. What I wanted to mention was more from a philosophical standpoint: the concept of role responsibility.

This is a concept that I first read about in Dr. David H. Jones's book called Moral Responsibility for the Holocaust (Rowman & Littlefield, 1999). To quote Dr. Jones, "The main idea contained in the concept of role responsibility is that a person assumes certain duties by virtue of occupying a social role or position, whether or not the duties are formally defined." (p. 27) For example, a ship captain, by virtue of his position, bears the role responsibility of ensuring the safety of those aboard his ship. Studies done of individuals who helped people escape certain death in Germany during the years of the Holocaust describe a similar phenomenon to the ship captain's sense of duty: those rescuers saw it as their duty -- by virtue of their position -- to save refugees from the hunters of the Third Reich. Thus their courageous protest against mass tragedy was the assumption of individual responsibility.

Importantly for the present discussion, Dr. Jones notes that while "most concepts of moral and legal responsibility . . . involve retroactive responsibility for a past act or omission," the concept of role responsibility "involves prospective responsibility for future acts and omissions." (p. 26) Right now, we are poised to prevent future bad acts and omissions that would destroy our last wild places. So, my challenge is this: somehow we must find a way to envision ourselves as bearing the responsibility to not only live lightly upon the earth but also to take active steps -- as individuals -- to save the earth. Only if we feel personally the weight of this great duty, and feel that something about our position as citizens in the most affluent and powerful country in a world whose human population size has exploded, requires us to act -- only then will we really be motivated to do something about that polar ice cap, and the disappearance of all those big fish. Is the best way to do this through governmental regulation? In part, but we have got to -- I have got to -- take individual responsibility too.

my my miers

2005-10-21T08:29:00.000-04:00

My My, Miers

A few days ago, I argued that it is wrongheaded to assert Ms. Miers is unqualified for an associate position on the Supreme Court. And I reckon I'll stick to the bare notion that a person is easily capable to serve and interpret the Constitution.

But, she might really be very very bad at it. I'll concede that I began feeling distressed with this potential Jurist over the week. My initial assumption was of her being a capable and thoughtful reader of public law (Constitutional and statutory interpretation and basic understanding of civic and administrative functions). I am coming to wonder whether I was wrong.

There are more worries addressed below, but one thing alone sets a red flag a'wavin'. Miers had the opportunity to sit, reflect, and respond to various questions presented by the judiciary committee. In her response, she referred to the proportional representation requirement of the Equal Protection Clause as it related to the voting act...which does not exist. She meant one-person-one-vote, but got her legal theories mixed up. If this had been a verbal response, I'd be forgiving. But it was a written reply, with ample opportunity to check.

Now, had she claimed ignorance, I se less a problem. The problem is where a jurist purports to know an answer and acts on that answer, and is wrong. Very problematic- and I grimmace to think of oral arguments filled with attorneys correcting the Justice on points of law.

Lily comments below that the quality of a jurist is in the ability to frame one's decision within a coherent, legal framework. With this in mind, I am further concerned at the quality of a Justice Miers. If she is unfamiliar with Constitutional law, fine. But if she is intellectually lazy, and spurts out bogus con law theories and ges precedent wrong, she should ont serve. Mind you, I don't mean precedent wrong in my opinion...I mean, if she objectively misapplies prcedent or statutory provisions.

This is my concern- and it is abated in knowing she'l lhave clerks and other Justices to correct her mistakes. And, certainly, one can grow with the job. Indeed, this is why I don't advocate, yet, her being rejected. It is, honestly, somewhat exciting to thing of someone apparently wet behind the ears, regarding public law issues, serving and earnestly, intellectually evolving on the Court. Could be fun.

did i hear a gulp?

2005-10-19T18:24:00.000-04:00

The NY Daily News article.

Is ABC's Note website too busy thinking up poli-insider puns and acronym humor to catch a huge contribution to their favorite new acronym, WDHKAWDHKI (what did he know and when did he know it)?

This morning, they framed the gaggle fronting story from today's NY Daily News like this:

And take a look at what might be a window into some new White House thinking on how best to position the President in advance of any possible indictments. LINK

Super-plugged-in Tom DeFrank of the New York Daily News reports exclusively that an "angry President Bush rebuked chief political guru Karl Rove two years ago for his role in the Valerie Plame affair. . .'He made his displeasure known to Karl,' a presidential counselor told The News. 'He made his life miserable about this.'"

DeFrank has another source claiming that reports that Rove may have misled Bush about the "Wilson counterattack were incorrect and were leaked by White House aides trying to protect the president."

Right there under your nose, Note! Thinking this article is "a window into some new White House thinking on how best to position the President in advance of any possible indictments" is about like thinking a kiss on the cheek from Al Capone is an indicator of long life.

Josh Marshall got all over the Daily News article, so take a look at the plethora of posts today at TPM. If the story is correct, and the president was going around saying

Listen, I know of nobody -- I don't know of anybody in my administration who leaked classified information. If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action.

he is in, as dad used to say, trouble city.

Land Use

2005-10-12T19:54:00.000-04:00

Worst news writing of last week award goes to the NY Time's David Stout, in a piece apparently grasping out for the coat-tails of the sensationalist reporting that followed the Kelo decision.

Last week, the Court announced it will hear two cases touching on the Clean Water Act. The cases address the government's authority to regulate wetlands--they are more or less statutory interpretation cases. Here, though, are segments of the write-up in the Times; reflecting a sad mix of human interest news writing and post-Kelo ignorance of land use law:

To many people who have followed the ordeal of Mr. Rapanos, his case is about a real-life American dream clashing with a nightmare of government bureaucracy.

…

In the late 1980's, Mr. Rapanos began clearing part of a 175-acre tract he had bought in the Midland, Mich., area in hopes of selling it to a mall developer and adding to the already substantial fortune he had built through years of hard work. In preparing the land for an eventual mall, he spread sand over part of it, even though state officials had warned him that some of his property consisted of protected wetlands.

Environmental officials say wetlands are vital for flood control and as habitat for fish and wildlife, and that they must be guarded to avoid polluting nearby waterways.

Environment officials "say"? Is this along the lines of "potential global warming"? The importance of wetlands is hardly disputed. This, though, is the kicker:

His determination has been fueled in part by a bitter childhood memory of a chemical company worker upending the candy stand he had set up near the plant and calling him a "dirty Greek."

Yes...no longer does the issue at hand in this case matter. Let us focus, rather, on the determination of this man that led him to fill up wetlands with sand in order to sell the land to a mall.

GOP.O.'d

2005-10-12T08:15:00.000-04:00

GOP.O.'d, but why?

A couple thoughts on Miers and the GOP. Rather, questions/confusions. Strangely,it has been Republican senators most vocally critical of Bush's second Supreme Court nomination. For instance, this from the Times today:

"Everybody is hoping that something will happen on Miers, either that the president would withdraw her or she would realize she is not up to it and pull out while she has some dignity intact," a lawyer to a Republican committee member said.

"Realize she's not up to it..." This is what I do not get. The going criticism of Miers seems to be that she is unable to meet the intellectual demands of Constitutional interpretation required of a Justice. One of the first conservative critics of the pick, George Will, made exactly that point a few columns back.

George Will is not a lawyer- he is a highly educated journalist that knows alot about politics and baseball. How his lack of a legal education benefits his passing judgement on the Constitutional interpretative abilities of one with a legal education is a deep mystery to this writer.

Let me offer a small secret: Constitutional interpretation and application is not hard. It is as difficult as forming an opinion on the meaning of a phrase. The difficulty is intellectually defending one's decisions in the face of seeming inconsistency. Even that, though, need not be too difficult: a'la pragmatism and the noble practice of case-by-case decision making. (read, for example, Bush v. Gore)

Really, anyone can engage in Constitutional discussion. Neigh, everyone should so engage; the Constitution being what is American civic participation. This mumbo jumbo about Miers 'not being up' for the job cannot be about Constitutional law. Nor can it be about lacking a thorough knowledge of case law. Clerks, Briefs, and Hornbooks are the calculators of the judicial profession. There is no need to maintain a memory of case law...especially when there exist fallible and stubborn memories in the heads of these nine.

So what is 'not up for it' about?

My hunch: BS. She is not approved of because her lacking track record fails to assure that she will be an activist jurist in overturning mid-20th century precedent despised by the conservative movement. She is, in other words, not assuredly up for the cause.

commerce and Roberts

2005-10-06T12:45:00.000-04:00

Sometimes I forget OR is largely intended to replace email as a space to have civic discussion. The following is an exchange from this yesterday and this morning. Yesterday, Mike and I were talking about the Oregon assisted suicide case, and whether Congress has power to prevent Oregon from acting under its law allowing this. Congress evoked the commerce clause as it's power source. In lieu of doing the whole thing over again, here are the emails:

Mike Writes:
Also Mr. Owens, wont it be interesting to watch Roberts and how he decides on the current Oregon case? It would seem [probably to many conservatives' horror] that to be consistent with his professed philosophy he would rule in favor of Oregon and against the administration. I myself am against the Oregon Law, but it seems to me Roberts would need to favor Oregon's states rights here as I would too, despite my position on the subject of the law itself. [Of course I would also say this same reasoning should void Roe]. Anyway, your thoughts? Mike

Andrew:
Is Roberts a big 10th amend guy? No way to really know. I think Rehnquist, o'connor and Thomas dissented in the cali marijuana case...all the others found commerce power the congressional law allowing for federal prosecution. This one’s under federal drug enforcement, so presumably under commerce powers as well? the cali case should tell us how all will rule, as I see little difference. I mean, sure- one is pot and this is about pills that kill you. But the question is fed gov's power to control such things.

I don't know if Roberts is a Thomas-style strict reader, a Rehnquist style federalist, or what. Will be interesting to see for sure.

Mike:
I had kinda got the notion he is a "Rhenquist style Federalist", but I guess it really was Bush saying that as opposed to Roberts.....to me its crazy if they base this on "Commerce", but I know that is a real possibility [liklihood?] as youve pointed out.......anyway, R's ruling will perhaps give indications of where he'll be going in the future. Cheers, Mike

Mike:
So Andrew, are you fine with the Court's allowing the federal govt to legislate re drug use/rules in national policies for the states? You didnt include anything critical in your mentioning the California case [Calif?]...Im just curious! Cheers man, Mike

Andrew:
Well- this is something where my con law thinking is still forming. Commerce clause stuff is difficult for me: I agree, generally, with the push back from 1960/70s commerce jurisprudence that allowed for broad scope fed power with the slightest tangential relation to interstate commerce. Mainly, though, I agree with the pushback via my appreciation of local governing, more so than an over-riding vision of the Constitution forbidding an interpretation allowing such power. To wit, philosophically, I think I agree that most anything can touch on interstate commerce, and the fed gov could regulate...I just don’t think they should.

Pragmatically, it makes little difference in my mind, because the structure of our two tiered gov (state/fed) has gotten states so dependant on federal money that congress can do most anything through the spending clause anyway now. Take Lopez: this is the case on the guns free school act- passed under commerce clause powers. Court said guns near schools does NOT relate enough to interstate commerce- so Lopez was one of the few cases in the 90s that pushed back against broad commerce powers. However, fed gov could probably pass something along the same lines under spending power- where they attach gun control as a string to fed money to state schools. This is what they're going to do with the eminent domain law, it's what they used to get the drinking age at 21, on and on...

So in a world of state dependency, it is difficult to get away from fed sway. 2 solutions:

1) feds need to appreciate the value of local gov

Or

2) states need to jack up taxes, refuse fed money, and go on their own. But, there would have to be some kind of trade off...you can't jack up prices without fed giving your state a break on taxes…but that is a long shot.
I talked with my housemate about all this recently. I got to where I was thinking each state should get higher taxes and break from federal sway. But he has a good counter: we are a country now that subsidizes the poorer, smaller states. He said- what happens to a south Dakota, or north Dakota if option 2 is taken? You think they have the chance to reap in a bunch off tax revenue from their scant populations? No way. Basically, fed taxes subsidize these people. He convinced me: if we do #2, we'll have mini third world country like states. And so, now, the communitarian (big scale) side of me appreciates the idea that I give up some things I want in order to help my fellow states of the union.

So, it's tough...

But, to sum on commerce- yeah, I think it can go too far- but I'm not convinced it's unconstitutional.

Mike:
Man, thanks for such an in-depth and thoughtful response...it is even a teaching example! I really appreciate the food for thought.

I guess re all this COMMERCE info, my same old 10th Amendment and strict constructionist philosophical/consistency arguments I always mention come to the fore. Like with your excellent examples, I tend to be on the other side of all those commerce rulings and the blackmail by Congress of federal funds...remember those funds come from the people in the states! I think the drinking age federal rule is terrible for example, and so on. And I agree with your housemate, indeed to accept federal powers but then just say states can raise taxes and ignore the congressional money would make little 3rd world states.

It seems the answer is that Congress simply does not have the power to make any rule it wants and justify it by some twisted and clearly ridiculous "interpretation" of the Commerce Clause [and YES to original intent as one component of any interpretation]....back to strict constructionism for me....fair for big states and small...clearly separates states and feds....

Cheers, Mike

Andrew:
...

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

...

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...

When you have the question: "is X 'necessary and proper' to carrying out the power of 'regulating commerce' amongst the states," I see room for an interpretation taking a broad reading of what is necessary and proper. I say, we could both read the clause narrowly, and disagree with the Justice that reads it broadly...but I don't see how that makes us more true to the text, or strict constructionalists, than the other Justice. We are both interpreting. He might say we're being 'activist' in reading it narrowly.

Scalia's answer to this problem is that we read the words as they were intended, with the meaning they had at the end of the 18th century- but the problems with that are abundant, and in the end, I think his potentially earnest approach is intellectually immature. 1, the constitution was clearly drafted by people with different ideas of what these phrases mean. Wait, I don't even have to go that far: this is common sense...we disagree over what necessary and proper means now, right? Well, why in the heck do we think people of the late 18th century magically didn't? the other overwhelming reason to reject Scalia's originalism is the obvious, scant structure of the Constitution. It is MADE to be interpreted.

Now, this doesn't put me in a comfortable place to be...it leaves to much room for a painful disposition; to wit, that I disagree with a ruling without being convinced it is wrong constitutionally. But again, I say- I get the sense the broad reading of commerce is not entirely anti-constitutional. But, I don't like it. Here, I think I agree with Cass Sunstein: in the face of this problem, the most proper route for Constitutional decision making is small, case by case, prudent decisions, wherein you try to limit the reach of your decision, and apply it much as possible to the case at hand without making broad constitutional provisions.

Cheers,
andrew

Mike:
You and I probably need to update our broad versus strict conversation related to all this......

BUT: of course there must be INTERPRETATION....no document can be so specific on everything in the universe that the same words mean the same thing to all readers. but there IS such a thing as a logically STRICT interpretation, and a BROAD one; these are tangibly different. Because something can be interpreted does NOT mean anything goes! I get the feeling from you Broad folks that the Necessary and Proper clause allows practically anything! Heck, if this is true, then why not dump the whole Constitution and have the one sentence!?

Mike says the ENTIRE document should be viewed as a seamless whole, the context of the WHOLE being important in the interpretation of anything specific. So yes we have "delegated Powers" clauses and you cite the Commerce one, we have the concluding [for that section] N & P clause you cited......but, we also have the 10th amendment, and the B of R's, etc...heck, what about the Preamble?

So, it is legitimate for me to say I think it negative, inappropriate, and unconstituional to call "commerce" those things that arent really about commerce at all, ie drinking ages for example.....yes indeed, what IS commerce may need discussion, but the existence of the N & P clause alone does not suddenly mean all things can be considerd commerce! You of course may not be saying this, but if you arent, I cant see in anything where you would agree with me or draw a line around what commerce actually means.....Perhaps you could illustrate for
me.

And what you say re Scalia and original intent, I would agree with you if Scalia's only or even primary interpretation methodology is original intent..is this the case? But I disagree heartily with you if you mean to say original intent is not important and should not be considered. For example, the Framers certainly intended a 3 branch government in which no single branch could take control of the government. This was their final decision as the document shows! Though others debated this and disagreed, this is the document that now exists. We should know and consider the reasonings and underpinnings of WHY the 3 branches were adopted and WHY and HOW there is a balance of powers.....To ignore this in our interpretations of contemporary Law would be terrible! Wouldn't you agree?

So my friend, Where would you say that you and I seeing eye to eye, and where then are we boldly different?

Cheers, Mike

mass

2005-09-15T08:57:00.000-04:00

those blimmin activist judges, part two

or is it Mass. support?

will and tnr

2005-09-13T18:37:00.000-04:00

George Will and The New Republic agree. Count me in, kinda.

A few days ago, I read Noam Scheiber in this week's TNR taking issue with the fairly typical response to the, now, common wisdom--that poverty was the largest cause of the scale of death and destruction in Katrina's wake; that typical response being to throw money at the problem.

Sheiber urges what ought to be common sense to progressives: one easy solution, money, does not a problem fix (much like how one simple solution, force, does not hasten down terrorism). Poverty, its causes, and its results all fit into a contextual and sociological setting. Poverty, like anything else, doesn't pay us the convenience of existing in a vacuum. Thus, the simpleton result of fixing poverty with money does little good. As Sceiber writes, responding to various politicos complaining that the poorer residents simply lacked the funds to get out of town:

Implicit in these arguments is the idea that poor people are pretty much like everyone else, just with less money. From this, it follows that the remedy is primarily financial. Consider Lewis's proposed solution not just for New Orleans but for the problem of urban poverty in general: "[I]n rebuilding, we should see this as an opportunity to rebuild urban America. ... There must be a commitment of billions and billions of dollars."

The problem was not money alone. Describing a middle class family against a poorer family, Sceiber writes:

The matriarch of the middle-class family, a local court clerk, tapped a cousin to secure a low corporate rate at the Lafayette Hilton. She paid for it with her American Express card. The woman then worked connections in local government and churches to land a scarce rental property. She even won a dispensation from local authorities to sneak back into her abandoned house in a quarantined area so she could rescue some televisions and furniture.

Needless to say, the poorer family had no such advantages. The husband had never been out of New Orleans before; the wife had never flown on a plane. Neither appeared to have contacts capable of assimilating them into another community; in any case, the concept of doing so seemed altogether unimaginable to them. And, while the family had $2,000 in savings, they didn't have a bank account. Their money burned up along with their apartment in a fire that followed the flood.

Scheiber ends his discussion with pleas for life-skills training.

George Will, in today's Post, continutes the thought...call it a variation on a theme:

The senator is called a "new kind of Democrat," which often means one with new ways of ignoring evidence discordant with old liberal orthodoxies about using cash -- much of it spent through liberalism's "caring professions" -- to cope with cultural collapse. He might, however, care to note three not-at-all recondite rules for avoiding poverty: Graduate from high school, don't have a baby until you are married, don't marry while you are a teenager. Among people who obey those rules, poverty is minimal.

Progressives, or liberals, or whatever, might reflexively gag at Will's evocation of the family bit...but we oughtn't. One does not have to Qualishly dismiss all single mothers, fathers, or non-traditional families to embrace a general, Willian, taste for healthy and loving families. If we embrace every idea that might eliminate poverty, and the terrible effects thereof, we will necessarily navigate away from simply money and think hard about the living conditions, social structures and civic relationships associated to these families and individuals that are to often ignored in poltical discussion (until, anyway, a flood washes out the blinders).

CA

2005-09-07T08:51:00.000-04:00

those daggone activist judges...oh wait

Rehquist and federalism

2005-09-06T08:36:00.000-04:00

While it was surely expected, I was sorry to hear Rehnquist lost his struggles with health problems. And while I don't know the man, his fingerprints on the state of current jurisprudence are well powdered.

Mark Tushnet has a very good column in salon.com on the largest impact Rehnquist implimented on the Court--reshaping federalism, the allocation of powers between federal, state (and local) governments.

Tushnet's larger point is that Rehnquist himself had less impact than did the Court over which he presided. This, of course, might be the stuff of issues taken by other jurist-watchers...could it be said, perhaps, Rehnquist was extremely effective in shaping the Court, as well as the federal judiciary?

In any event, the jurisprudence of federalism has surely shifted through Rehnquist's tenure--from a New Deal era expansive powers of Congress to the current Court, where supposed 'Conservative' jurists strike down more laws passed by Congress than ever before. While Congress appreciated a broad ability to control national policy through it's taxing, spending and commerce powers through the middle part of last century, that breadth has eroded notably.

Well and good. Where I might differ from most commentators is in the quick conclusion most make that this is a Conservative development. I'm not sure what about power allocations between localized and federal government has to do with idealogy. Rather, it is when "state's rights" is trumpeted as a step-in for something else that the issue becomes partisan: ie, where state's rights = slavery/ racism/ anti-regulation/libertarianism...where, in other words, the proponent in fact favors no government presence (including the state's). But so long as the debate is about who should regulate, as opposed to whether there should be regulation, it is an honest and non-politicized question of who is in the better position to set policy. And while Rehnquist did not always follow the intellectually honest line I have proposed, he did so more than most commentators aknowledged.

As for the effect of this shift in federalism, Tushnet writes:

Only the Supreme Court's future rulings can indicate which direction it will go with regard to Rehnquist's primary contribution -- convincing the court that it has the option of invalidating national laws.

We'll have fun watching.

summer aint over

2005-09-05T12:29:00.000-04:00

Back from Holiday.

I'll reckon labor day is as good as any to reunite with our web discussion. I look forward to a new season of helpful chatter with my friends Mike and Lily.

Here's hoping everyone is squeezing the tastiest out of the remaining summertime. That I can't type while swimming has caused our scant attention to this forum of late. That, and trading in New Republic for Rolling Stone for summer reading.

As for the substance of reporting today, am I mistaken in noting a few paradigm shifts? The common wisdom seems to be dim for the President. I would have thought his fairly pitiful bout with Social Security reform would pass and we'd reenter a non-descript sunny couple years for the man. Rather, from the bits of news I caught, the not-necessary war appears to have, at last, caught up his ankle. And once down, he gets grief rather than grandeur from the Katrina fallout. It will be interesting to see how the Supreme court fillings work into this context. But more immediately, I wonder if the mood will persist into the 2006 elections.

This is a good time for those with ideas to get loud. And I disagree with the standard "Democratics need to voice a clear plan" complaint. Rather, I want broad brush ideas about what government can and can't do for its people; and, more importantly, in what kind of society--made up of what kind of commuities--do we want to live?

The policies we invent, the bonds we build abroad, our system of Justice, and, importantly, the rhetoric we engage in, will remain as important as ever over the coming years. I've seen a good deal of prophesy of paradigm shifting lately (see this, from David Brooks). If we are indeed in a societal/civic flux, let's have a say in the outcome. I look forward to the coming discussions.

simon

2005-08-22T22:44:00.000-04:00

Central America.

An old friend and very good person, Simon Helwig-Larson, has sprung up a weblog. Apart from his recent engagement, the good news is we now have a very direct and knowing look into the news of Guatemala. Take a look, here.

music part 2

2005-08-01T22:56:00.000-04:00

More on the norms of music

It might be that we can imagine a song like a joke, or a story. (One must indulge me...in the efforts of imagining new norms, I'll need more wiggle room than a worm in heat.) And a, say, improvised music performance like a, say, improv company.

Put out of mind copyright issues for a moment. A joke is often funny or not funny as a result of the teller, not the substance. Mitch Hedberg is funny; me relaying one of his one liners is not. In the same vein, no one but Garrison Keillor can tell a Lake Woebegone story. Amongst other things, the artistic sensibility difference is timing. We seem to watch a funny stand up for the funny stand up much more than an account of the jokes told.

Of course this is not a complete picture. Comics sell books...just as there is something we value in good lyrics/chords. I think, though, in the end we value the delivery more than the sheet music. A song is in the delivery. Sheet music is like the information on a DVD, or the holes in player piano reels--instructions for performance.

Jon raises (below) the difference between covering a song and recording a cd track. It seems to me the difference is key here, in that one is a new performance and the latter is a copy of a recorded performance.

The Future of Music authors want a paradigm shift ot music a service, as opposed to product. I'm not sure that I fully allign- but this is from their third chapter:

Let's zoom back to 1887, when Emil Berliner invented the gramophone. Back then, the big deal was that the gramophone allowed people to listen to music without having to actually be at the performance. It forever changed the concept of music from a dynamic and interactive entertainment experience to a fixed product. Music became nearly synonymous with the medium that delivered it, beginning with wax cylinder, then vinyl disk, followed by cassette tape, and eventually, compact disc. In essence, music moved from being a performance and a service to being a product.

Because of this shift, we have become accustomed to the perfection and repeatable quality of today's music. Prior to the nineteenth century, music wasn't played exactly the same way more than once, since it was impossible to reproduce the exact circumstances of a performance. The instruments and orchestration would change, as would the performers and their moods, audiences, and performance environments. Songs were performed as well as they could be in that moment, and composers worked hard to create a continuous flow of fresh music for fairs, operas, concerts, trade shows, theaters, and so forth. The composers of the time also liberally borrowed material from one another, often adapting, updating, and improving the songs for the players and performances at hand.

Before musicians were placed in front of enormous gramophone recording funnels and asked to cut down their performance to an acceptable and packageable length, music was essentially an ephemeral art; if you weren't there you didn't hear it. These very same musicians were performing in hotels, bars, concert halls, churches, private homes, and on the street. Some were held in very high esteem, and a rare few were wealthy-if they were really good and if their message came across. The economics for musicians were not all that different from what they are today. Then as now, those who had something special and attracted an audience became successful.

After more than a century of music being pitched and sold primarily as static products, with musicians getting paid to perform on such products, in a way we are returning to those early days, and music can once again become more about the experience than the product. Of course some styles of music have never ceased to be a service, such as in niche markets, including classical music, world music, and jazz. Yet most financially successful musicians have become purveyors of products and hope to make a significant part of their living by "selling plastic."

bought culture

2005-07-31T12:56:00.000-04:00

bought culture
The recent redux of payola offers a chance to take stock of the cultural failure of commercial music, and a hope for normative change. In other words, the music industry must die.

This week, after settling a law suit with Sony BMG Music, NY's Attorney General Eliot Spitzer released a good deal of unsavory information about the record company's practices of paying radio stations for the label's songs' airplay. The practice of payola is as old timey as the non-monetary contributor to the word, Victrola. The word was coined, some 50 years ago, when Congress investigated bribes paid to disc jockeys to play certain records. And now this:

The state investigation found that Sony BMG, which releases music by acts including Jennifer Lopez, Good Charlotte and Beyonce had provided stations with entertainers for station-affiliated concerts or paid for station equipment or other bills in exchange for having its songs played. It also provided vacations and electronic goods for on-air giveaways in a direct trade for airplay. And it hired independent promoters to funnel money to radio stations.

In addition, the investigation found that the company had tried to distort industry airplay charts - creating the false impression that a song was taking off - by paying stations to play its songs as sponsored advertisements. It has also used interns and hired vendors to call radio stations with requests.

As a result, Mr. Spitzer said in the settlement documents, "Sony BMG and the other record labels present the public with a skewed picture of the country's 'best' and 'most popular' recorded music."

That music corporations act like corporations is unsurprising. To the extent one thinks of music as a commodity, we should expect it to play in the commercial world like anything else in the market economy. As such, the problem of payola resembles false advertising and antitrust issues; wherein a corporate player skews the market so as to unjustifiably taint the consumers' choice in the product. And the solution to the problem is one of leveling the table on which the record companies display their product. Hence, Cliff Doerksen's opinion piece in the Times:

...systems of "bribery" analogous to payola operate in many retail markets. Most supermarket chains, for example, make a chunk of their revenue from "slotting fees," which are the rents that food distributors pay them for shelf space. That such rents are paid says nothing about the flavor or nutritional value of any given item on the shelves. Where music is concerned, however, the concept of payola somehow seems intuitively revolting.

Yet, like it not, every popular song you've ever loved has reached you via some chain of pay-for-play machinations. The technological landscape has changed over time, as have the laws supposedly governing music promotion, but payola has been as constant and pervasive a force as gravity for more than a century now. A rational set of regulations would probably acknowledge this reality and aim at leveling the playing field so that small players can compete against big ones, just as they used to do in the early heyday of rock 'n' roll, when tiny labels like Sun briefly had the likes of RCA on the ropes.

Music, though, is not a commodity. A song is not a box of corn flakes, or a widget--and the norm of treating songs as such kills the value and quality of music as a factor in our human experience and within our culture. Within our current music business context, Doerksen's hopes for a level playing field where indie record labels and major companies compete honestly to shell out their music is well received. But this is to tweak a few trees in a dying forest.

Payola is only a manifestation of the failures in a system of corporate music, wherein band puts together a song and company peddles the song in order to promote the product (cd) that contains the song. And all the players (including indie labels) are guilty of perpetuating the wrong direction in music; because, all record labels rely on the wrong view of song as property.

Yes, you saw this coming...music is suffering the consequences of bad intellectual property law.

My complaint is not that songs on corporate radio stink. Someone, somewhere will always write a song that i regard as crapola, regardless of the fate of payola. Nor do I dismiss the value of popular music, where the joy of a song is in singing along with others that know the song. And I certainly do not secretly wish all radio could become college radio with djs across America trying to out-obscure one another. I have seen the world of "I have a new band you've never heard of," and it is depressing.

Variety is great, as is hearing a new band. But this is not my point. Variety, if seen only in the sense of more competition, and thus a more perfect market, still avoids the problem of music as comodity.

The tough realization that we must come to is this: songs should basically be free. Song-makers should, more or less, not get paid.

And this, from someone that fancies himself a would-be entertainment lawyer?

If we watch/hear music performed, it makes sense for the value of the performance. Similarly, when the performance is caught on tape, it makes sense to pay for that record of the performance, just as a poster is a record of a piece of art; both enable mass reproduction of something that evokes a thing we like. Indeed, recorded music itself can be the art, in that the musician manipulates sounds with studio equipment in order to reach a final artistic end. Well and good, and these things, if we want copies, are sensibly bought and sold.

A song, though, is distinct from the performance (leave aside, for now, electronic music, arrangments, and orchestrial works). Song makers, for the most part, place words over chords. No chord progression arrives out of whole cloth. The argument for long-lasting copyright, then, is that particular words have uniquely been placed over chords. Under current law, that act-putting some words over some chords, can get you the right to keep other people from using those words over those chords for nearly a hundred years. It is this concept of the song that leads to record labels to manage the song, radio stations to sell the song, and the song as commercial commodity.

There is an alternative: a norm where songs are not valued, but performance is. I'm thinking this norm might be similar to a folk music society (in the old sense of the word- such that a song is sort of known, but is played and heard differently amongst different local cultures)...but my thinking on this is fairly immature.

Normative change efforts are afoot. Read the Future of Music. For a broader discussion of intellectual property's role, read Professor Lessig's Archetecture of Innovation.

Roberts

2005-07-21T08:42:00.000-04:00

As I prefer hopeful optimism to uninformed distress, I will happily adopt Jeffrey Rosen's opinion as my own. I trust Rosen, the legal affairs writer for TNR, is right about the little we know from Roberts' judicial past. More importantly, Rosen discusses the types of questions the judiciary committee might ask that are important, as opposed to hot button, case specific hoonany.

To begin with, senators should forget about the government briefs Mr. Roberts signed about Roe v. Wade, school prayer and other hot button issues. It's clearly not fair to hold him accountable for defending the George H. W. Bush administration's official positions. After all, that was, at the time, his job.

Instead, the Senate should explore Judge Roberts's judicial philosophy and temperament. He has been on the appellate court for only two years, however, so clues in his judicial record are necessarily sparse.

But based on his record throughout his career, he does not appear to be a rigid Constitutional "originalist" in the tradition of Justices Antonin Scalia and Clarence Thomas. These men believe that the Constitution should be strictly interpreted in light of its original understanding; they are willing (to different degrees) to overturn years of Supreme Court precedents in the name of constitutional fidelity.

Having spent decades arguing before courts rather than sitting on them, John Roberts has never embraced one grand legal theory to the exclusion of all others. On the contrary, he has been trained to cast a wide net in order to reach a convincing result. Inflexible originalism is a theory embraced by academics and crusaders, not practicing lawyers who must persuade judges of different stripes.

...

Perhaps one clue to Judge Roberts's leanings on the force of precedents can be found in the outlook of one of his judicial heroes, Henry Friendly, an appellate judge for whom he became a clerk in 1979. Friendly was famously cautious, a man devoted to incremental rather than radical legal change. It might be illuminating for the senators to ask Judge Roberts what he admired about Friendly, and why.

Another potentially fruitful line of questioning might center on Judge Roberts's views about the scope of Congress's power to regulate the environment and the economy.

Give the entire article a read.

Chait on ideas

2005-07-18T21:28:00.000-04:00

Democrats have no new ideas. Rather, they spend all their whiny energy in reactionarily obstructing the earnest and innovative efforts of the Bush administration to solve the challenges America faces.

The above is the well orchestrated and effective rhetorical hoodliwink of the right--used in the age old tactic of promoting a policy without actually talking about the merits of the policy. One's offered solution to a purported problem is more easily accepted if you can convince the mainstream media and it's audience that, well, the other side isn't offering anything (on, say, social security).

And the "no idea" silliness has found its use all along the plank, from the Post's Krauthammer:

What has happened to the Democrats over the past few decades is best captured by the phrase (coined by Kevin Phillips) "reactionary liberalism." Spent of new ideas, they have but one remaining idea: to hang on to the status quo at all costs.

to the GOP bloggers:

Liberals haven't had an original idea in the past 10 years. This is why we don't hear them coming up with any substantive plans for fixing a social security system they agreed was failing in the 90's, why we hear them complain about Bush's response to terrorism, but never hear them offer a solution of their own, why they keep obstructing at every turn, but never promoting their own positive plans for anything.

Watch almost any right-leaning talking head on Sunday morning (or take a glimpse at a WSJ or Economist editorial, and you will fairly predictably hear the refrain in the attempt at working its way, Iraqi-nuclear-weapons-like, into the public's subconscious.

It is, then, with profound relief that I read Jonathan Chait's coverstory article in a recent New Republic, "The Case Against New Ideas." Chait quickly dispenses the demonstrably false Krauthammerian rhetoric:

...the plain fact is that liberals have plenty of new ideas. Troll websites of the Center for American Progress, the Brookings Institution, or the Century Foundation, and you will find them teeming with six- and twelve-point plans for any problem you can imagine: securing loose nuclear weapons, reforming public education, promoting international trade, bolstering the military, and so on. They get churned out by the shelfful providing more material than any presidential administration could hope to enact.

But, the real value of this article is a normative and objective observance. It's one thing that GOPsters utilize the 'no idea' line; it is more disturbing that many Democrats go right along with the flawed thinking. Chait's great point in this piece is the, really, common sense response to Democrats' complaint at Democratic inability to express ideas: you need a soapbox on which to stand.

The truth is that liberal ideas aren't getting any circulation because Democrats are out of power, not vice versa. Not long ago, to take an example almost at random, Senate Democrats held a press conference with James Woolsey to unveil an energy-independence agenda. Not a single major newspaper or network covered it. This isn't because reporters harbor a bias against liberals. It's because they harbor a bias against ideas that stand no chance of being enacted. And so, the vast majority of the time, the press will simply ignore ideas put forth by the minority party.

Apart from this too little appreciated point, Chait notes that both liberals and conservatives have ideas, and spend a great amount of time earnestly thinking of things they feel need improving. The priorities, though, differ. This is why we have parties and civic/political identity--not because one party has new ideas and the other does not; rather, because we identify more with one party's sense of priority.

Here the comparison between right and left is instructive. Liberals are brimming with ideas about reforming health care and taming the deficit. Conservatives have little to say about either of these problems. On the deficit, they are theologically opposed to raising taxes, and they have learned from Newt Gingrich that massive spending cuts are political poison. On health care, controlling costs means controlling waste, yet much of that waste is income for interest groups closely aligned with the Republican Party, such as pharmaceuticals, HMOs, and insurance companies. The GOP, then, may be the party of ideas in the sense that its ideas have slowly and inexorably ground forward over a long period of time like glaciers over the Ice Age landscape. But, if this process leaves them unable to confront the actual problems facing the country, you have to wonder why this is something liberals ought to emulate.

The point here is not that conservatives want for new ideas. It's that the question of which ideas hold sway is a function of which party holds power and what priorities it has. It is certainly true that conservatives have devoted more energy to the question of fundamentally reshaping Social Security. But this difference has nothing to do with who has more or better ideas and everything to do with priorities. Liberals like Columbia University's Jeffrey Sachs have devoted lots of energy to devising plans to end world poverty. Liberals have devoted enormous attention to the problem of global warming, while the Bush administration insists it will kill any action on the topic.

Good article. In the last strain, Chait challenges the popular assumption that ideas drive elections. I agree with him, sadly. Would that they did...and we will try to help in causing such a future. In the meantime, it is the unfortunate truth that presidential races remain a strange mix of popularity contest and irrelevant, transitory tidbits of nothingness.

2005-07-16T19:56:00.000-04:00

while the paper's provided a plethora of Court commenting, i played hookie from Rhetoric to, among other things, play with my little cousins.

been some time

2005-07-10T09:33:00.000-04:00

So. A plethora of opinion-spurring happenings over this brief respite from posts. There has been little need to add to the subsequent cacaphony of responses to the final round of SCOTUS opinions, the retirement of, so far, one Justice, and the appointments process...just to address Court commentary. On the London bombings, I have little to say: terrorists have a more or less retarded, or insane, world view- and our effort to stop the occurance of terrorism must incorporate some creative thinking that differes dramatically from old fashioned warfare. I liked this story, also, from Friday's All Things Considered.

Back ot the Court. Opinions, for your reading:

Van Orden v. Perry. Justice Rehnquist writes the majority, joined by Scalia, Thomas, and Kennedy. The opinion finds no establishmnet clause violation in a monument dedicated to the 10 Commandments on the public grounds before the Texas state capitol building. Souter writes, in my mind, the correct dissent. It has the added benefit of being the most colorful writting I've ever seen from this Justice.

Justice Souter wrote the majority opinion in the other 10 Commandments case, McCreary County v. ACLU.

Souter also wrote the majority for the unanimous Court in Grokster.

We have addressed Kelo a bit. It was decided correctly, then distorted in the most irresponsible way by the mainsteam media. We'll return to thta decision again.

The jailed reporters, and their mainstream media employers, also, in my mind, are wrong. While the media can and should enjoy some Constitutional protection for their written ideas, they do not and should not appreciate immunity from all laws as applicable to normal citizens. Protecting sources is great; but everything tangential to journalism cannot be used to expand the scope of a first amendment protection intended, namely, to prevent jailing folks for opinion-making.

Regarding reporters, I agree with the Supreme Court (as they refused to hear the case) and this comment.

kelo

2005-06-28T19:02:00.000-04:00

Kelo and the MSM
The Supreme Court recently upheld decades old law that allows government to take private property for public use, if the property owner is paid just compensation. The media, playing on the fears of those that it expects to contribute to its ratings (not unlike local news coverage of every robbery and abduction), decided to utterly lie about the holding and precedent of US takings law.

A lawyer friend, and land use expert deeply familiar with constitutional issues involved in the takings clause, writes this:

The case really changed little in the law. The plaintiffs were in effect trying to get the court to overrule Berman v. Parker, the 1954 case allowing the use of eminent domain for urban redevelopment -- condemning all property within a blighted area and then transferring title to private parties for redevelopment (a principle followed in a even broader context in a 1984 case from Hawaii). The urban renewal program certainly had some major problems with how it was carried out in some cities, but the legal principle that this is a "public use" is long standing, though long contested by the property rights crowd.

Much of the media treatment of the decision was abysmal. NBC's report last night said this was a major and new expansion of govt authority to take your home for any reason whenever it wanted. Clearly they hadn't bothered to read the opinion, only the press releases from the plaintiffs who lost. The majority and concurrence make it abundantly clear that there must be a comprehensive plan, a general public need being addressed, and not being employed simply to benefit a single private party.
Whether one thinks such use of govt power is wise or not (and I would be in the camp that sometimes it is, sometimes it is not, it all depends on the specific facts of the case), the decision is far from what its opponents and most of the mainstream media have portrayed it. Unfortunately a lot of folks confuse the policy question (should govt be doing this type of thing and under what circumstances) with the constitutional one.

There are also some interesting undercurrents of judicial activism and deference to legislative judgment as to where to draw lines (e.g., O'Connor saying the court can decide it is ok to condemn land for a privately-owned sports arena but not for an economic development project, while Stephens says that distinction amongst the scope of public purposes is best left to the legislature acting within broad constitutional limits), but that is for another day.

And he's right. More on the activism bit later.