The New York Times Weighs In

The Times's editorial on the school cases (called, in what has to be gross overstatement, "Resegregation Now") speaks to the tension between negative and positive rights I highlighted earlier. Clearly, the editors of our paper of record are positive rights folks.

"The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate."

This opening sentence begs the question that the Court had to decide in these latest school cases: does Brown require integration or mere desegregation?

The editorial calls the opinion "radical" and labels it "activist."

This claim of activism is especially interesting. While it is true that the Court did rule that local governments lack the power to determine admissions by counting by race, Brown did the exact same thing.

Even more ironically, the editorial cannot seem to agree on the meaning of activism. At one point, it reads "This decision is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do."

At another, "It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated."

Put aside the obvious misstatement that the Court ordered schools to become more segregated. That's pure nonsense; however, it is true that this decision could lead to less integration in schools located in neighborhoods dominated by one race. The important issue raised by these two statements is why it is "activist" to forbid schools to count by race but not activist for a court to compel a school to do so.

Whether you agree or disagree with the school cases, it is impossible to hold up this editorial as an example of clarity of thought and reason.

Don't get your thoughts on the Supreme Court from the New York Times editorial page. I am no legal genuis, but the task of dismantling this doesn't require much more than middle school civics and a casual perusing of chapter 1 of "The Idiot's Guide to Logic."

Form your own opinions. People are all too willing to form them for you, and you can tell how well qualified they are.

London Terror Plot

Note to terrorists: if you try to bomb Picadilly Circus, you are going down.

My Thoughts on the Seattle & Louisville Cases

Here goes nothing.

This case hinges on a debate that has endured in legal philosophy for centuries: are rights positive or negative? In other words, are freedoms to be considered as freedoms from something or as freedoms to something? Negative rights are freedoms from government action. Positive rights are freedoms to have to government act on the right-holder's behalf.

The Chief Justice's opinion for the Court (which is a majority in some respects and a plurality in others) and Justice Kennedy's concurrence in judgment both take a fundamentally negative view of the rights arising under the Equal Protection Clause: individuals are given the freedom, under the Equal Protection Clause, to be free from having the government classify them on the basis of their race. The Chief Justice makes this point abundantly clear: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In this paradigm, segregation is a positive governmental action and each citizen is and should be free from such positive acts. We are all free from "de jure" segregation- active segregation by law.

Again, Chief Justice Roberts:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons.

To be clear, Justice Kennedy writes his own opinion to argue that citizens are only free of racial classifications to the extent that the government making the classification can show that there is a compelling interest in making it and that there is no way to achieve that interest without counting by race. He leaves the door open to allowing state action to remedy "de facto" segregation, which is segregation in fact. De facto segregation (which the majority may call a contradiction in terms) arises from housing patterns: races live near each other and therefore neighborhood schools reflect the narrow racial mixture of the neighborhood not the racial mixture of the city. Justice Kennedy's position is that there may be some positive right relating to segregation, even de facto segregation, but it is very hard to find an interest compelling enough, and a law tailored narrowly enough, to justify the exercise of that right.

The dissents' position embraces positive rights. They view the right in Brown v. Board of Education as a positive right: the right to attend an integrated school. This perspective aims farther than the negative rights view because it requires that the courts enforce laws that create positive integration, not merely the absence of segregation. Consider this excerpt from Justice Breyer's dissent:

In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

The verbs in this passage show the emphasis on positive rights: challenge, change, make, work, and seek.

Justice Thomas's concurring opinion challenges this positive rights approach:

Regardless of what JUSTICE BREYER's goals might be, this Court does not sit to "create a society that includes all Americans" or to solve the problems of "troubled inner city schooling." Ibid. We are not social engineers.

The negative rights crowd aims at color-blindness (per Justice Thomas); the positive rights crowd would allow local governments to use "race-conscious criteria" to further the interest of integration as long as those criteria do not involve "invidious discrimination."

In this case, Justice Kennedy charted a middle course between negative and positive rights. His opinion requires schools to start with a negative rights approach and only allows them to proceed to positive integration (i.e., directly counting by race) if the race-neutral means fail to achieve the compelling interest. He denies that color-blindness is a workable constitutional principle, though he clearly prefers it to counting by race.

I think that Justice Kennedy's approach, while it is a huge mess, will have the effect of forcing states into embracing the negative rights approaches. Before a school board can start counting by race, it will have to show that it exhausted the race-neutral alternatives. Practically, I don't think that school boards will be willing to create fully individualized interview processes addressing each student's skills and needs or pay for building schools so that they naturally draw from diverse neighborhoods. Without taking these steps, I don't think that a board will be able to satisfy Justice Kennedy's requirements, and his opinion is the law.

So what do you think? Is there a right to integration? Is it the job of the Supreme Court to say that the way to end racial discrimination is to stop discriminating by race? Is it the job of judges to determine which forms of discrimination are invidious and which are benign? Which side followed Brown?

Really good commentary is now available at scotusblog and bench memos.

School Cases are In

Find them here, consolidated into one opinion (with concurrences and dissents, it runs 185 pages).

In short, the schools in these cases failed to carry their heavy burden of showing that their race-based plans were narrowly tailored to meet a compelling governmental interest; therefore, the plans were struck down.

I (obviously) haven't read the full opinions yet, but I expect that the effect of Justice Kennedy's concurrence, limiting this case to the narrow tailoring aspects, prevent this case from being "the big one" that some people expected.

However, here are some passages from the opinions that may make it broader than it presently appears. From Justice Kennedy's concurrence:

A sense of stigma may already become the fate of those
separated out by circumstances beyond their immediate
control. But to this the replication must be: Even so,
measures other than differential treatment based on racial
typing of individuals first must be exhausted.

We'll have to see. I'll pass along the thoughts of the really smart people at scotusblog or volokh when I can.

Today is the End of the Term

There are 4 opinions due to be announced today (3 if the two school cases only yield one opinion). When I can gather my thoughts about them, I'll have something up. I am also working on a review of the term as a whole, although I seriously doubt my ability to evaluate such a weighty topic in a manner worth reading.

Well, lack of ability has never stopped me before. What I lack in ability I make up for with enthusiasm!

Piper Book Sale

For you Piperians out there, DesiringGod.org is selling all of its books for $5 TODAY ONLY. If you order today, the book is $5.

Quantities aren't limited. Check it out.

Samford Athletics News

Samford football made the news! This is huge because Samford is not really all that good at football.

And, I should point out, that the only reason that Samford football is in the news is that a defensive end robbed a bank and got arrested.

**sound of papers shuffling**

Nevertheless, Go Dogs! Samford Bulldogs forever!

A Quote Challenge

Kudos to whoever can identify the person who said "Beer: the cause of, and solution to, all of life's problems."

Thoughts on Tomorrow's School Cases

Let me quote in full this post from scotusblog. As someone who appreciates that the business of lawyers is and must be doctrinal before political, I heartily agree. Thank you, Professor Fried.

Here is a prediction: the Court in its school race-based assignment cases will take a bite of Grutter, just as in Wisconsin RLF it took a bite out of McConnell. And the usual suspects –e.g. The New York Times editorial page—will once again point to what they will call the false fealty to stare decisis sworn by Chief Justice Roberts and Justice Alito. Such accusations will be either ignorant or hypocritical. Grutter was paired with Gratz, which struck down the Michigan undergraduate plan of racial preferences because it was mechanical and numerical rather than individualized and sensitive as in Grutter. Those who are addicted to racial preferences celebrated Grutter and ignored Gratz, no doubt encouraged by the elevated rhetoric in Grutter. But this Term’s school cases are more like Gratz than they are like Grutter. Truth be told, Grutter was more like Gratz too, only the Court chose to ignore the clear findings of fact that Michigan Law School was just as addicted to numbers and percentages as the undergraduate program, but due to the smaller number of applicants (and better legal advice) could accomplish its goals without leaving the paper trail that a much larger admissions process made inevitable. So what we have is an incoherent pair of precedents and, as is the case with a contradictory proposition, such a contradiction entails anything, everything or nothing.

Grutter and Gratz leave the people in charge of making policy with no reasonable rule for making constitutional decisions. Hopefully, tomorrow's cases will make the task of legislating easier.

Think Your Job Will Go to India? Send it There Yourself

I am almost certain that the story in this article is apocryphal, but there is a certain elegance to a programmer who hires an Indian subcontractor to do his job while still collecting a salary from his employer and "telecommuting."

Our world's market is changing. The only way to move forward is to move, well, forward.

A Milestone for the Omnipresence

If you search on yahoo! for "brooding omnipresence," you will be confronted with good news and bad news. The good news is that this very blog, the brooding omnipresence? is the first result. The bad news is that clicking the link gives you the blog post about gizoogle.

By the way, google, ya'll are behind the curve. The blog only shows up fourth.

Facebook v. MySpace or Does America Have Strong Social Class Disctinctions?

Instapundit linked to an article about the social differences between MySpace people and Facebook people. It's worth checking out.

But I am not at all sure that I agree with it. For example, the author states that "[a]s a society, we have strong class divisions...." Really? Where are they?

For example, Facebook people are supposed to be "hegemonic" and MySpace people are "subaltern." What do these labels mean and how are they "strong class divisions?"

I think that our society does not have strong class divisions and that is why we are concerned with the differences betweeen people who use MySpace and Facebook. If we had actual class distinctions, why would anyone care what SNS you used? We don't have class, we have a dozen proxies for it.

What class are you in? How do you know?

As far as I can tell, when we talk about class we are talking about wealth. And classes based on wealth cannot have sharp distinctions; heck, the income tax brackets are the only tipping points we've got.

Am I way off base?

The Pants Judge Loses

Our horrible plaintiff-judge who sued his dry cleaner for more than $50 million got not one penny from them. The judge ordered the plaintiff to pay the defendants' court costs, but these costs are nothing compared with attorneys' fees.

The judge has not yet decided on the award of fees. We all know which way that decision should turn out.

With the measure you use, so it will be measured unto you.

Opinions! Opinions!

Yesterday, while I was in the car all day, the Supreme Court started spitting out opinions left and right. I've got to study today and get the house ready for book club tonight, but expect full posts dedicated to Hein (addressing taxpayer standing under the Establishment Clause), WRTL (corporate speech in elections and probably the most important case of the three), and Morse (the narrow but interesting Bong Hits for Jesus case).

Give me time, people, and I'll give you the lowdown. But the school cases come out on Thursday, and they might make Monday's opinions look like chicken mcnuggets.

Erin's Heading to Another Country

Have fun Erin. And good luck. You're going to need it.

Seriously.

Planet Earth

If you haven't seen the Discovery Channel series Planet Earth, go find an HDTV and watch it. Wow.

It really says something, to those of you who know me, that Planet Earth makes me want to go buy a nice television. I'm 45% freegan, for crying out loud.

Brentwood Academy Case

I thought I should give ya'll Nashville folks an update on the BA case: Brentwood lost.

Unfortunately, the reasoning behind the case is wildly involved and the justices split in funny ways.

By "funny" I do not mean anything close to anything that will make you laugh. If you want to understand the opinion, Eugene Volokh lays it out as pretty as can be done here.

New CAFE Standards

Congress wants to raise the average fuel economy of cars sold in America. Of all the ways to achieve this end, I suppose we should not be surprised that they picked the most regulatory alternative: have Congress simply require the auto manufacturers to make more efficient cars.

Congress makes its economy standards through the CAFE standards. I want to challenge the wisdom of Congress's action.

There are a few ways to make cars that run more efficiently on gasoline. One way is to install engines with less horsepower. Consumers generally dislike this solution because we like fast cars. Another alternative is to employ non-gasoline fuels in some hybrid technology. This plan is popular but it is not clear how soon the expensive hybrid hardware will become cheap enough to put in every car. Most hybrids are still marketed towards people who care more about the environment than about getting the best car for their money. Also, hybrids that perform as well as current non-hybrids are not substantially more efficient. Car manufacturers will likely employ a lot of hybrid technology to meet the new CAFE standards, but it is really unlikely that hybrid alone will get us there.

The third and most likely way that car makers will meet the CAFE standards is to make their cars lighter. Carbon materials weigh a lot less than metals and most plastics, so the same engine could move a carbon-fiber car easier (more efficiently). The problem is that lighter materials are substantially more expensive than current materials. Consumers should expect that cars will get more expensive, and that they will not have much choice in the matter.

I think we should think of price increases caused by CAFE standards as taxes. Any time the government acts to make us pay more, I think we should always use the lens of tax. And, when examined as a tax, higher CAFE standards don't make much sense.

Think about it: we want to pollute less and use less oil, so we tax car manufacturers in such a way that they raise the consumers' costs of buying a car. There is a much more direct way to accomplish this ends.

If we want to tax oil consumption, why not just levy a gas tax? People who drive more will pay more, and most of us will try to find a way to use less gas so as to pay less money. One way or another, we won't end up paying more for expensive materials in our cars that we really don't care about in the first place.

If lighter materials are the most efficient way to increase fuel efficiency, expect a gas tax to lead to higher demand for lighter cars. If they are not the most efficient way, why are we adopting regulations that lead to that result?

Let's not let Congress pass indirect taxes because they are afraid or unable to pass a direct one. Would you support a gas tax? If not, why would you support new CAFE standards?

Doves

I had a top time listening to music yesterday. I think I'll post a few of my favorites over the coming days.

Check out Doves (not The Doves, just Doves). They seem to fit somewhere between Radiohead and Coldplay: lots of cool sonic stuff going on, lots of wild instrumentation, lots of manipulating the signals, but all of it carrying sweeping pop melodies.

On their myspace, my favorite two songs are "Snowden" and "Cedar Room." Snowden is melodically complex, full of allusions, and deeply philosophical. Cedar Room is a rock anthem--I dig the bass in the chorus!

Their music is full of counterpoint, full of energy, and interesting. Check 'em out

Freegans

Got to love people who try to live their whole lives by dumpster diving.

To say "they're not down with capitalism" is a bit of an understatement. Freegans believe that any resort to the market, like buying toothpaste or gasoline or borrowing money from a bank, is evil.

I wonder what serious vegans think about freeganism. Vegans eat no animal products at all, which has a purity to it. Freegans, on the other hand, only subsist by the evil of others. They avoid waste, not the market.

Intellectual fuzziness aside, Lane Seabolt, if you're out there, this may be your calling.

A Judicial Conservative Justice from a Politically Liberal Senate?

Ed Wheelan thinks so.

The core premise of his article, that "judicial conservatism" has a broader appeal than the political variety (especially in red states), is attractive. We'll have to see if it's true.

I want to emphasize one the unstated premises in his article: the whole nomination process depends primarily on the President. Only the President can nominate; the Senate is at a political disadvantage because it can merely respond. He (or she) that holds the initiative holds the most important power.

Come to think of it, perhaps there is an interesting analogy between the interplay between the President and the Senate on matters of confirmation and the modern practice of judicial review. Anybody else see it?

Nine Times More Journalists Give to Democrats than Republicans

According to Drudge. I file this story away in my "not-big-news-because-I-am-not-surprised" category.

Incidentally, though the the data would be nearly impossible to gather, I wonder what the slant among semi-serious bloggers would be?

For Those of You Who Have Lost Touch With Me...

Here's what I've been up to

Opinion Journal Following my Dad's Advice

You beat them to the punch on this one, dad.

If only you had a blog to publish these thoughts...

Imagine this: In a Southern town, a woman accuses several men of rape. Despite the woman's limited credibility and ever-shifting story, the community and its legal establishment immediately decide the men are guilty. Their protestations of innocence are dismissed out of hand, exculpatory evidence is ignored.

The Duke rape case, right? No, the Scottsboro case that began in 1931, in the darkest days of the Jim Crow South.

The two cases offer a remarkable insight into how very, very far this country has come in race relations, and alas, in some ways how little. For race is central to why both cases became notorious. In Scottsboro, Ala., of course, the accusers were white and the accused was black. In Durham, N.C., it was the other way around.

...

The country has come a long, long way in regard to race relations since 1931. But we have not yet reached the promised land where race is irrelevant. Far too many people are still being judged according to the color of their skin, not the content of their character, let alone the evidence.

The article is worth reading.

Via Instapundit

Juneteenth Update

My anniversary was great. But things got ugly in Texas.

A car struck a child during a Juneteenth celebration. The crowd apparently beat to death a man trying to protect the driver of the car. The child's injuries do not appear to be life threatening.

Failed States

In case the last video got you too excited, here's a nice sobering look at the Foreign Policy's Failed States Index.

Especially interesting to me are the geographic trends and the correlation between a lack of religious tolerance and a lack of stability. I wonder if "lack of religious tolerance" is a partial proxy for the influence of Islamic theocracy. The data seems to support me at a high level.




And I could imagine Salman Rushdie agreeing with me, if he can come out of hiding long enough to find me.

The omnipresence is there, Salman; it's brooding somewhere.

High Class Humor in the Morning

Juneteenth!

Today is a holiday! It's not just my anniversary (I love you, Melissa)! It's JUNETEENTH!

Juneteenth has a wonderful ring about it, just like Casimir Pulaski Day. It is the celebration of the Emancipation of the slaves in Galveston, Texas on June 19, 1865 by General Gordon Granger. His statement:

The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.

Celebrate freedom today and remember that all that we have has been purchased at great price, a price we could not afford to pay ourselves.

Also remember that if you live in Texas, Arkansas, New York, Massachusetts, New Jersey, Connecticut, Alaska, or California (which only adopted Juneteenth as a holiday in 2005), you shouldn't be working today. Tell your bosses. They'll understand, I promise...

No Touching Rule in Middle School

A middle school in Virginia has a no touching rule. How incredibly middle-school of them!

Seriously--no touching? No high-fives? No wedgies? No wet willies? What happened to middle school?

The scariest part (to the lawyer part of me) is that a teacher said "[y]ou have to have an absolute rule with students, and wiggle room and good judgment on behalf of the staff."

Why not simply make a good rule instead of a bad one? Why make rules that give the enforcers the power to pick and pile on some students while "exercising good judgment" with others?

I know that zero tolerance policies are on the rise, but be wary of them. No zero tolerance policy gets enforced to the letter, which leads to disparate and ultimately discriminatory enforcement.

Ours is a nation of laws, not of men. We should take enough time writing our rules that the rules themselves become the manifestation of good judgment instead.

I realize that no rule is perfect, and writing a rule that covers every bad touching but no good ones is certainly impossible to draft. Laws cannot replace good judgment; however, it does not follow that we should therefore draft laws to rely on judgment.

It's one thing to make a car that can both avoid and survive an accident; the accidents remain the exceptions. It is altogether different to design a car that runs into everything.

Weird

I promise not to use the word "Great" in any titles of blog posts for at least a week. Gosh, I need an editor...

Great People

A really inspiring story about soldiers and the national anthem. Thanks to all of you.

Duke Non-Rape Case: Nifong Disbarred

I know that it's old news now, but the District Attorney who tried to prosecute boys he knew to be innocent was disbarred by the North Carolina Bar. He got the maximum penalty.

And Drudge just linked that one the players is suing him. I'd say his chances are good.

Let me publish my dad's theory on this case: people who hate become what they profess to hate. Nifong portrayed this case as one where a poor individual was destroyed by powers too strong for her to resist. She was a victim of an evil machine and he was going to challenge that machine. Well, as it turns out, Nifong was the man who was bringing the power of the state against three boys who had done absolutely none of the things the "dancer" said they did. The government became the oppressor in the name of helping the oppressed.

The English professor who said that the case should be viewed through the lens of Emmit Till became instead the leader of a lynch mob which convicted these boys without a shred of evidence. In fact, their "conviction" was based on their race, their wealth, and their social status.

I have a great idea: let's not try to judge people based on their race, their wealth, or their appearance. It's wrong to convict people of being black and poor, which is exactly what happened in this country for decades; it is equally wrong to convict people of being white and rich. Let us focus on what actually happened instead of taking stock characters and making them fit our political storyline. There is no room for a jurisprudence or a politics of "false-but-accurate" in a free society governed by law.

But let me add two more things. First: What Nifong and Duke did in this case is truly horrible. It shocks my sensibilities (if I have sensibilities). But I do not agree that the enemy of my enemy is my friend. These Duke players did nothing to warrant the ordeal they have been through, but that doesn't mean they're great guys. I will defend their rights, but I will not defend their character. I think wisdom tells us that students who don't engage strippers to dance at under-age parties rarely get accused of raping strippers while drunk. The players' wrong is a small one when compared to the evils of Nifong and Duke (and the complicit media), but wrong is wrong. These guys are not welcome anywhere near my single sister.

Second: this case serves as a good counterpart to my earlier post about the frivolous (pants) suit judge. The lawyers were the good guys in this case, which is really saying something.

"The Great American Pants Suit"

The most frivolous lawsuit ever... and one of the most disconcerting. Get the story here.

An unemployed lawyer sued a dry cleaning business over a pair of pants that the lawyer claims were poorly altered or given to the wrong person. Damages sought: $67 million.

This guy is now an administrative law judge.

It is stuff like this, or, more accurately, scumbags like this guy that make studying for the bar exam such a chore.

People like the Chungs (the owners of the dry cleaning business this judge used and sued) need tort reform. Are we going to give it to them?

A Great Ross Quote

My brilliant and fascinating friend Dr. Ross Campbell said something so profound, so insightful, that I simply had to pass it along. He was telling me of two of his friends who married each other when he uttered the phrase:

"He went to college; she went to Auburn."

Go Dawgs. And three cheers for Ross.

Great Post by my Friend Adam

I have a friend in California. He has interesting thoughts. These thoughts occasionally appear on his blog. His name is Adam.

He has a really interesting take on the outrage over the movie Knocked Up. I offer it with my highest recommendation.

George Orwell, Socialism, and the Will to Fight

I just finished reading "Why I Write" a marvelous little collection of essays by George Orwell (the dude who gave us Animal Farm and 1984). Allow me to commend it to your library. It contains 4 essays, 3 short and 1 long. The best of the short ones is "Politics and the English Language," which you can read here. The short essay "Why I Write" is available here. The final short essay, "A Hanging" is here. He captures a lot of why I no longer (politically) support the death penalty.

The long one, however, blew my mind on several levels. The first line is "[a]s I write, highly civilized human beings are flying overhead, trying to kill me." I was hooked.

He wrote the essay, called "The Lion and Unicorn," (read it here, in three parts) as a call for England to adopt a Socialist economic structure. He says repeatedly that capitalism is a failed experiment and cannot compete with the planned economies of Fascist or Communist states. Wow, was he wrong about that one!

And this from the guy who gave us Animal Farm?!

In his defense, Orwell sought to establish his program through democracy. He thought the monarchy could be preserved. He did not come off sounding like a radical and had plenty of bad things to say about Marxism. Nonetheless--dude, you really screwed the pooch on this one. Big, bad, capitalist America showed up to relieve Great Britain only a few months after this book came out.

Even more than the economic stuff, however, I was taken by Orwell's determination to defeat Hitler and his conviction that Britain could not fail. He proposed socialism as the only way to beat evil, which runs contrary to any socialist argument I have ever heard.

He also anticipated that the "left-wingers" of England would end up supporting Fascism and Hitler because of the belief that "the English are no longer a martial race, capable of enduring." He then wrote a long paragraph on how these critics would make their arguments. I will quote the passage nearly in full. It is terribly applicable to our current situation, I believe.

[T]hey will proceed to argue that, after all, democracy is "just the same as" or "just as bad as" totalitarianism. There is not much freedom of speech in England; therefore there is no more than exists in Germany. To be on the dole is a horrible experience; therefore it is no worse to be in the torture-chambers of the Gestapo. In general, two blacks make a white, half a loaf is the same as no bread.

But in reality, whatever may be true about democracy and totalitarianism, it is not true that they are the same thing. It would not be true, even if British democracy were incapable of evolving beyond its present stage. The whole conception of a militarized continental state, with its secret police, its censored literature and its conscript labor, it utterly different from that of the loose maritime democracy, with its slums and unemployment, its strikes and party politics. It is the difference between land power and sea power, between cruelty and inefficiency, between lying and self-deception, between the SS man and the rent-collector. And in choosing between them one chooses not so much on the strength of what they are now as of hat they are capable of becoming.... The only question that matters is where one's real sympathies lie when the pinch comes. The intellectuals who are so fond of balancing democracy against totalitarianism and 'proving' that one is as bad as the other are simply frivolous people who have never been shoved up against realities. They show the same shallow misunderstanding of Fascism now, when they are beginning to flirt with it, as a year ago, when they were squealing against it. The question is not 'Can you make out a debating-society "case" in favour of Hitler?' The question is, 'Do you genuinely accept that case? Are you willing to submit to Hitler's rule? Do you want to see England conquered, or don't you?' It would be better to be sure on that point before frivolously siding with the enemy. For there is no such thing as neutrality in war; in practice one must help one side or the other.

Right on. And I hope ya'll all saw the irony of an anti-communist writer anticipating the Bush doctrine in a treatise in favor of socialism.

Sorry for the long post.

God, The Cavaliers, & Predestination

From the Onion:

"God Wondering If He's Being Too Cruel In Allowing Cavaliers To Reach NBA Finals"

"Although I move in mysterious ways, and in doing so often allow bad things to happen to good people, My grand design is usually glorious to behold. But the Cavs in the Finals…I don't know, maybe that's just plain mean."

I was recently involved in a discussion of God's providence with several friends. I wish I had read this article first...

Hamas & Fatah

Things are getting nasty in Gaza.

Remember that Hamas won elections that put in control of the Palestinian Government, and is now trying to leverage its victory into total control. It is imperative that you remember this fact, because it will not get mentioned much.

What is happening in Gaza is what happens when we place an inordinate faith in democracy. Democracy is the best (i.e., worst except for all the others) form of government, but even the best governments stand no chance against power, greed, hatred, and fear.

Spreading democracy is like spreading fertilizer: it will make grass grow tall and strong, but it will do the same for weeds.

Don't misinterpret me--I am not arguing that Palestinians (or anybody else) is somehow unfit for democracy. But I do want to make sure that we, who spread democracy, take note of the side effects.

Meet the Sixth Grader Judged "Most Likely Not to Have Children" by his Teachers

Drudge has linked to this story out of Philadelphia. This kid's teachers gave him awards for being "Most Likely Not to Have Children" and "Sir Clowns-A-Lot."

He has clearly spoken with an attorney. From the article:

"I was standing in the middle of (the two teachers), and they (were) reading
them off," he said. "Everyone was laughing."
Matt felt humiliated.
"They (were) putting us down and everything," he said. "That is not what
their job is for, to put kids down. They are supposed to teach us."

I imagine this kid is no saint. The teachers I know are pretty good judges of character, on average. But this is so far from appropriate that I simply don't know what to say.

How about those gov'mint schools!

Government Schools?

Interesting article seriously proposing the abolition of public schools.

Americans want universal education, just as they want universally safe
food. But nobody believes that the government should run 90 percent of the
restaurants, farms, and supermarkets. Why should it run 90 percent of the
schools — particularly when it gets terrible results?

Indeed. Government schools are becoming a liability that burdens people much more than universal public education helps them.

More on Criminals and Enemy Combatants

Orrin Kerr of the Volokh Conspiracy has two very interesting posts on this subject. He examines the Al-Marri case here. He presents his "Thoughts on the Continuum Between War and Crime" here. Both are perhaps a legal law-nerdish, but Orrin Kerr is about as smart as they come.

Al-Marri Case

I am certain that all of you have been keeping up with the Al-Marri case in the 4th Circuit. Yesterday, that court decided 2-1 that the government had to either release Al-Marri or transfer him back to civilian criminal authorities. He has been held in a Naval Prison off Charleston for 4 years.

The opinion runs 86 pages. I've only skimmed it and am not an expert on the issues it addresses, but I am struck by something.

The majority opinion is long and the dissent is short. I like short opinions.

Furthermore, the majority is confusing and the dissent is much clearer. I like clear opinions.

The dissenter, who was a District Court judge sitting by designation, clearly articulated why he disagreed with the majority and gave good reasons. Here's the clearest part:

While I commend the majority on a thoroughly researched and
impressively written opinion, I must conclude that their analysis
flows from a faulty predicate. In my view, the appellant was
properly designated as an enemy combatant by the President of the
United States pursuant to the war powers vested in him by Articles
I and II of the United States Constitution and by Congress under
the Authorization to Use Military Force (AUMF).

At this point, the only opinions that matter are the opinions of the Supreme Court, so I'll spare ya'll my analysis. But thanks, Judge Hudson, for a clear opinion.

One more thing: the majority includes a "parade of horribles" that goes beyond the actual facts of the case. Al-Marri is not a U.S. citizen, but they include this paragraph:

To sanction such presidential authority to order the military
to seize and indefinitely detain civilians, even if the President
calls them “enemy combatants,” would have disastrous consequences
for the Constitution -- and the country. For a court to uphold a
claim to such extraordinary power would do more than render
lifeless the Suspension Clause, the Due Process Clause, and the
rights to criminal process in the Fourth, Fifth, Sixth, and Eighth
Amendments; it would effectively undermine all of the freedoms
guaranteed by the Constitution. It is that power -- were a court
to recognize it -- that could lead all our laws “to go unexecuted,
and the government itself to go to pieces.” We refuse to recognize
a claim to power that would so alter the constitutional foundations
of our Republic.

The eloquence is great and I am glad to know that the 4th Circuit is out there protecting me, but why talk about detaining citizens in a case where no citizen has been detained, especially when the primary purpose of the dicta is to make an emotional appeal?

It's not fun to be in politics right now

Just ask Harry Reid.

His approval rating is floating around half of Dick Cheney's (roughly equal to Scooter Libby's). Four times more people strongly approve of President Bush's performance than his (not that the President's numbers are high enough to keep the room warm).

And now Dennis Miller weighs in on Reid. I have not seen commentary like this ever!

But I have heard its mirror image on NPR in the voice of Daniel Shore.

Stay away from politics, unless you think playing red rover in a nuke-u-lar minefield is fun stuff.

The Judge in the Libby Case

I need to reiterate that I don't know enough about the whole Libby gig to pass on an opinion worth hearing. But every time I look into the case, stuff stinks.

A bunch of professors sent a brief to the judge that presided over Libby's trial and sentencing, asking him to allow them to leave to file a motion. Judge Walton granted their request but dropped a footnote:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Leaving aside for the moment the fact that Judge Walton appears to be wrong in his sarcastic criticism of the "luminaries" (I can think of no rule that allows courts to require a member of the bar to submit a brief under his or her own name), these words reflect a lack of concern for the judicial task.

If these scholars are right, Judge Walton should take the appropriate steps to remedy any errors and do justice. If they are wrong, Judge Walton should indicate, maybe with reasons, why the arguments advanced are incorrect or inapplicable. An ad hominem response is inappropriate for any judge, especially in an order granting leave for these people to file.

But the fact that Judge Walton has responded in the manner he did shows a toubling undercurrent in the whole affair. I suspect that these scholars submitted their brief to the court at least in part because they feel that Libby is not receiving the same treatment as other defendants. If he were a normal dude, I cannot imagine that he would have been prosecuted.

Some reassurance that justice is working apart from politics is what this case needs. Judge Walton has failed to communicate that reassurance. I hope his future actions will make up what is lacking.

At the very least, I hope he will abstain from dropping gratuitous footnotes.

The first rule of holes is that when you're in one, stop digging.

YouTube is fun

Gosh, I post one and I want to keep posting.



With any luck, this should make your day a little better.

A Close Call

I live near trains.

This video makes me respect trains.

Some Fun Music

I wrote earlier about getting together with James, Joel, Josh, Cory, and Caleb to write and record some music in one night.

Here's one of the songs we recorded. It's my favorite. And it's a first take, which I think is cool because the song switches back and forth between 4/4 and 5/8. Josh is a sick drummer.

But I've got lots of sick friends.

All of the songs are available here. Thanks to Cory for recording, mixing, and posting.

Backwards Competition

I often find Ayn Rand to be a little over the edge. A lot of what she says is insightful to me, but I find her ideals exaggerated. A perfect objectivist is as rare as a perfect communist.

(In fairness, I should point out that Rand specifically anticipated that people would make this criticism of her and she called us "lovers of death," if I recall correctly. She did not consider her philosophy an exaggeration at all.)

And perhaps she was right. A common theme in her writing is that schemes of handouts encourage people to compete not on the basis of compotence and productivity, but on the basis of incompotence and need.

All of this is a lead-in to this story, out of India.

Enraged mobs from one of India's myriad lower castes blocked roads with fiery barricades, stoned police and battled rival castes across a wide swath of northern India for a week to make a single, simple point: They want to be even lower.

With 25 people dead, the unrest spread to the fringes of the capital before the Gujjars — a class of farmers and shepherds — called off their protests.

They did so only after officials agreed to consider their demand to be officially shunted to the lowest rung of India's complex hereditary caste system, so they can get government jobs and university spots reserved for such groups.

...

In other words, the fastest way up India's modern economic ladder is a quick step down its age-old social ladder.

...

The move immediately drew threats from leaders of a powerful rival group, the Meena, who are already classified among the lowest castes and clearly do not want more competition for jobs and school spots set aside under quotas. During the unrest, fighting between Meenas and Gujjars left at least four dead.

...

India's Supreme Court temporarily suspended the plan in a March ruling that presaged the Gujjar protests.

"Nowhere in the world do castes queue up to be branded as backward," it said. "Nowhere in the world is there a competition to become backward."

Incredible!

New Paper on What Drives the Left and the Right

Allow me a gross over-simplification from a paper out of Germany.

Money makes conservatives happy.

Status makes liberals happy.

Is this generalization surprising? Modern liberals are more collectivist and tend to propose "systems" solutions to problems (hence the "big government" thing). Modern conservatives are often called greedy.

What fascinates me is how these generalizations may explain the ideological slant of some professions. College professors are more liberal than the national population, and the major currency of academia is status--it certainly isn't money! Journalists are another group that clusters left-of-center and is compensated more by awards and social standing than by dollars.

What are the parallel professions on the right?

Car Experts?

This cannot be a coincidence. In the last month, I began to really have to work at getting my key to work in my car's ignition. I had to get the tumbler replaced.

My sister-in-law's car had the same problem a week later.

Today, Wifey discovered that she had no problem getting her key to work the ignition, but she was utterly unable to get the key out of the ignition.

So we now have a car with a new ignition and a car that has a key forever stuck in the ignition. I have to take my key to make a spare that Wifey can use on the doors.

What am I doing wrong? I feel like a character in "the gods must be crazy."

Alabama Politics

I have spent several years in Alabama, and I have tried hard to make the case that the stereotypes are mistaken. Getting an education in Alabama is not a contradiction in terms. We have teeth. I live in neighborhood where people of lots of different races, orientations, and points of view get along happily. I have never kissed Nick Saban--and I've never wanted to.

But one Alabama State Senator did punch another one today. Go figure.

Well, at least there's always Mississippi...

UPDATE: Video (with commentary) here

Iran Caught Shipping Arms to Taliban

This story is apparently not big news, but I suspect the reason is that none of us are surprised.

D-Day

Thank you, all of you who went ashore 63 years ago. I've had the pleasure of seeing the Beaches that you had to dread to see. I've seen the cemetery.

It's a powerful thing to see. There is a chapel on the grounds of the cemetery with a mosaic ceiling depicting two scenes. One is America blessing her sons as they leave to fight. The other is a woman symbolizing France bestowing a laurel wreath on the American dead. The inscription reads "Through the gate of death may they pass to their joyful resurrection" and "Think not only upon their passing / Remember the glory of their spirit."

Thank you.

Turkey Invades Iraq

This news is bad. I don't know how bad, but it's bad.

Turkey has a right to defend itself against Kurdish attacks, but sending troops into Iraq seems awful strong to me. We'll see what happens...

You Can't Make This Up

According to Foxnews, Beth Holloway Twitty (mother of missing-in-Aruba Natalee Holloway) and John Ramsey (father of murdered child JonBenet Ramsey) are dating.

Wow. Who comes up with this stuff? Lifetime movie, here we come...

Scooter Libby & Sandy Berger

I'm not in the business of defending people (yet), but I challenge someone to tell me why Libby is going to jail for 30 months and Berger is going home to write his autobiography.

As I see it, Berger and Libby committed similar crimes: both were cover-up crimes. However, we know that what Libby was covering up was not a crime, while we will never know what Berger destroyed. Who was more blatant? Which man's conduct was more outrageous?

Crimes are crimes. I'm not in the "Pardon Libby" camp. But when I see Berger's book on the bookstore shelves, I might just join up.

Omar Khadr and the MCA

Yesterday, a judge dismissed the charges against Omar Khadr, who was arrested at the age of 15 in Afghanistan. He is alleged to have thrown a grenade that killed an army medic and wounded three other soldiers. From what I can tell, these facts are not in serious dispute. The kid did what he is accused of doing.

The charges were thrown out because the Military Commissions Act of 2006 (the MCA) only applies to people who have been adjudicated to be Alien Unlawful Enemy Combatants. The "alien" and "unlawful" parts are new.

Khadr was adjudicated to be an enemy combatant by an earlier tribunal. The judge who threw out the charges said that this classification was insufficient.

This is a classic example of dealing with a loophole. I do not think there is any chance that Khadr will not be found to be an alien unlawful enemy combatant, so all that happened yesterday was a procedural roadblock.

Many critics of the Bush administration are quite pleased with the decision. I cannot figure out why.

Many Bush supporters are quite upset with the decision. I can see where they are coming from-- the grounds on which the charges were thrown out are flimsy. This case is a triumph of form over substance.

But I say that our law is fundamentally about process. We are guaranteed due process of law!

It is our observance of the exceptions and the loop holes that make us different from our enemies. Review Khadr's status. Review the status of the other 380 prisoners.

And then try them under military tribunals, just as every wartime president since George Washington has done.

(What got me thinking about this subject was this article.)

First Real Day of Bar Study

Today I start studying for the bar exam. July 23, 24, and 25th, here I come!

Some Thoughts on Rapid Mass Transit

I love rapid mass transit, but I fear that most people think that rapid mass transit involves trains and subways and empty buses. It does not.

Why settle for speed less than 100 mph when the speed of light is available? Why move atoms when you can move electrons? Why try to re-engineer the American suburb when you can take advantage of its existing structures? Why not telecommute?

Growing up in Atlanta, I learned that building new roads does not solve congestion problems; however, I don't think that building new rails will fix it either. People don't want to live in dense neighborhoods as much as they want to have some privacy, safety, and good public schools. In other words, people love suburbs.

Oddly enough, most suburban homes are big (and getting bigger). Many have room to house a home office, which sure is convenient. Instead of attempting a social experiment, why not just give employees the ability to do what they already can do: work from home.

Business- consider letting your employees telecommute at least some of the time. The costs in time, transportation, and all the ancillary costs of being away from home represent potential savings to employers everywhere. You can pay a stay-at-home worker less.

And to all of you who would chase people out of the suburbs--be careful. Rarely will you find the way forward by trying to go back in time.

Check out this article. I think it's spot on.

Sandy Berger Surrenders His Law License

I think that this article at RealClearPolitics is perhaps a little over the top, but I reccommend it.

An excerpt:

Justice Department officials who investigated the missing documents initially were persuaded that Berger must, as he claimed, have taken documents by mistake and then destroyed them to avoid having sensitive material in his possession. The plea agreement was based on the assumption that Berger was mishandling classified material - not manhandling it.

Now, however, it is clear that there was nothing innocent or inadvertent in Berger's conduct. He has something to hide and, whatever it is, he was terrified that at least some part of it would come out of a non-criminal hearing before the Bar. With no possible criminal charges to face, he could not have claimed a right against self-incrimination. He could no longer get away with saying that he took documents accidentally, took them only to prepare for up-coming hearings (why, then, take five copies of one memo?), or didn't intend to destroy them. He would, in other words, have had to say more than he has so far.

I have no good way to tell if this Berger affair is actually important, but I have no difficulty at all assessing its relative importance when compared to the firing of the U.S. attorneys.

Just imagine if Karl Rove was caught destroying every copy of some documents in an archive...

Caleb's Night of Poorly Written but Well Played Music

Last night, my buddy Caleb got some musicians together and challenged us to write and record three songs. Because he was providing dinner (and because he's a straight up guy), we showed up.

It was interesting. It was a lot of fun.

Who knows how these songs are going to sound...

Josh, Joel, James, Cory, and Caleb: thank you! I had a blast.

Television

I don't have cable at home, so this week has been interesting for me.

I just finished watching professional arm wrestling. Wow. I saw two warnings and a foul before any actual arm pounding began.

I wonder how many warnings make a demerit... and how many Shrute Bucks excuse a demerit...?