The Right Coast

February 28, 2005
Don't Blame Pete Wilson for Making California a Blue State
By Gail Heriot

Brendan Miniter's comment in today's WSJ Political Diary (subscription required) seems quite unfair to me. He suggests that former California Governor Pete Wilson and Proposition 187 (which denied illegal immigrants certain state benefits, including welfare benefits) are responsible for making California a Democratic electoral stronghold. I'm starting to hear this everywhere I go and it's utter nonsense. And I'm saying that as someone who opposed 187 and who regards herself as moderately pro-immigration (though I would like to see some significant changes to our immigration policy).

Democrats increased in strength largely because more Hispanics and Asians moved to California (and more blue-collar whites left for Nevada, Arizona, etc.). Demographics matter. First generation immigrants tend to be Democrats in part because they will tend to come from the lowest socio-economic strata. That has nothing to do with their "reception." Had Pete Wilson greeted them at the border with a kiss and a bottle of champagne, they would still be Democrats. It wasn't Wilson's alleged anti-immigrationism that made California a Democratic stronghold, it was immigration itself. The best the GOP can do is try to pick up as many Hispanic and other votes as they can (and I strongly support those efforts).

Is it possible that there are a few Hispanic immigrants who will tell you that they would have been Republicans but for Proposition 187? Sure, but there may also be a few Mexicans living in Mexico who will tell you that they would have immigrated to the USA (and voted Democratic) but for Wilson and 187. I don’t know which way it nets out. The one thing I’m pretty sure of is that the effect is tiny relative to the overall effect of immigration. Blaming California's Democratization on Wilson is like blaming a flood on some guy for peeing in the river.

Prof Chruchill, redux
By Tom Smith

Michelle Malkin has these excerpts, which are reputedly from Ward Churchill talks at some college campus. Am I missing something, or is he referring to the terrorist attacks that killed some 3,000 innocents, and killed them in a particularly horrible way, as good things? That's certainly what it looks like, but without the context, one can't be entirely sure. But if he is saying what he sounds like he's saying, well, then, the trustees at Boulder should just fire the guy. Good grief, if some professor were to show a picture of the lynching of a black man from the 1930's in the South, emit a rebel yell and say "Just makes you proud to be an Amurican!", and say it in all apparent sincerity, I like to think he would be fired. I mean, shouldn't he be? I think there is plenty of room for academic freedom without providing state funded sinecures for proponents of mass murder. If that's how Professor Churchill feels, let him be paid by some demented Saudi, not the taxpayers of Colorado. Didn't some Coloradans die on 9/11? Aren't there Coloradans fighting in Iraq and A-stan now? Seems a bit at cross purposes, if that beautiful, mountainous state is also paying for a professor who is saying (if indeed he is) that it's just swell that all those Americans died for the crime of being Americans. The state of Colorado may not be able to prevent such speech, but it doesn't have to underwrite it.
AND now that I look at it again, he seems to be talking about the best ways to carry out terrorist attacks. He seems to be saying something like, now that all Arabs are suspected of being terrorists, it will be hard for them to kill lots of people, so others of us will have to take up the slack (and this guy is against profiling! Apparently on the novel the grounds that it might prevent terror attacks!) As I said, perhaps I misunderstand what he is getting at, but, look, nobody could possibly object on First Amendment grounds to firing a state employee who holds open (or closed!) discussions on how best to wage war on the civilian population of the United States.
AND FROM OUR FAR FLUNG CORRESPONDENT . . . Somehow I am not surprized to learn Dr. Churchill may not be a great respector of property rights. (via this law student blog.)

Go ahead and blog
By Tom Smith

Every time some newspaper hack complains about blogging, I reach for my keyboard. QandO fisks recent dumb arguments re same. Hey you in the green eyeshade, the 1st amendment gives you the right to speak, not the right to do so without consequences.

Appealing How Appealing
By Tom Smith

Lots of good stuff on How Appealing today, including this, on the hysterically named "nuclear ("nuc-u-lar') option" in the Senate. Keep scrolling.

And there is this astute analysis of the First Amendment by one of the true giants of the law. I am a little preturbed, however, as it appears to have been plagiarized from the winner of the Ozark Bend, Arkansas Third Grade All School Essay Contest on "Our Friend the Constitution," but that may just be a coincidence. Great minds, similar tracks and all that. A taste:

"You want to burn the flag or protect the flag [or] salute the flag, I say that's all good," as a judge interpreting the U.S. Constitution, Kennedy said. "You believe in atheism, you believe in a Christian God, I say that's all good."

And that's just a sample of the intellectual riches that await you.

Your Supreme Court at work
By Tom Smith

If you are black, and you get sent to prison in California, your chances of getting knifed in your sleep by an Aryan Brother just went up. But at least you will know, as you bleed out, that you have not been discriminated against by the State of California. By the Aryan Brotherhood, perhaps, but not by the state. And how can that fail to be consoling? There are worse things than getting knifed in your sleep. There is, for example, being forced to read an opinion by Justice O'Connor. But everybody makes mistakes. Some people end up in jail, and some people end up on the Supreme Court.

The Supreme Court and other disappointments
By Tom Smith

Some colleagues and I had a fancy and very expensive dinner Friday night at one of San Diego's fine dining establishments that seems to be in a bit of a decline, but more on that later. I do not mention the names of my distinguished colleagues, for reasons that will become clear, but all of us had been appellate court clerks and two had been U.S. Supreme Court clerks, within the last decade or so. I was struck by how both USSC clerks were completely dismissive of the idea that the Court was even attempting to follow the law, or were doing anything other than just making it up as they went along. Bound by past decisions? Don't be silly. Obliged to do what Congress said? Get outta here! It makes you wonder if it should even be called a court. We have a radio show in the San Diego area (not one you want to listen to) that calls itself "the court of public opinion." Maybe that's the kind of court it is. That is, just a metaphorical court. Not a court, but a figure of speech. So maybe it should go "God Save the United States and this honorable so-called Court!" They could stick in the so-called when they get around to taking out the God. Not that they have to; they just might feel like it someday.

Welcome readers
By Tom Smith

While we at the Right Coast have a policy against toadying for links, I would, on behalf of my distinguished colleagues and me, like to welcome all readers from to our humble blog. It may be that, as Glenn Reynolds suggests, we "lean right." But that is not on purpose. We simply call them as we see them, pursue the truth and the occassional laugh, and that's where we end up. Maybe that's why it's called the right. As for Glenn, I have just one word. Nanotechnology. It's the future, I tell you, the future. And everyone of those little robots will have his own assault rifle, and we will all be safer for it. Just kidding, Glenn. Let me know when you'd like your lawn mowed.

February 27, 2005
Fear and Intimidation at Harvard
By Mike Rappaport

Harvey Mansfield on the Larry Summers flap at Harvard. Pretty powerful.

One strange thing, though, about Mansfield. His web site says "He has hardly left Harvard since his first arrival in 1949, and has been on the faculty since 1962." Seems a bit odd, if you ask me. (Hat tip: The Conservative Philosopher)

Goodbye, Aiko
By Gail Heriot

I just learned (almost a year late) of the death of Aiko Nakane, long-time owner of Aiko’s Art Materials on Clark Street in Chicago. She was 95. I discovered Japanese woodblock prints at Aiko’s when I was a college student. As much as anyone, she taught me to love beautiful things (and to wrap them well). Here’s to you, Aiko-San.

Senate Filibusters, the Constitution and Star Trek
By Gail Heriot

Senator Jim Talent (R-Mo) dropped by San Diego on Thursday morning. Since Jim and his wife Brenda were both in my law school class, I figured I should drag myself out of bed early in the morning to attend the small breakfast being given in his honor by the San Diego Lincoln Club. (I then wasted the rest of the morning feeling like an underachiever. I'm pretty sure I couldn't even get my mother to vote for me for Senate, but that's another story....)

Jim said a few words about the seemingly-endless problem with judicial nominations. As most readers know, although Republicans now hold a solid majority in the Senate, they still cannot get Bush's nominees confirmed, because they (and their moderate Democratic allies) do not quite have the 60 votes necessary to cut off the filibuster. Rightly or wrongly (and I'm inclined to think it's wrongly), the will of the majority is being thwarted.

I blogged on this topic more than a year ago, shortly after Miguel Estrada withdrew his name from consideration. Let me first quote a portion of that post:

"The word 'filibuster' comes from the Spanish word 'filibustero' meaning pirate. The Spanish word can be traced back to the Dutch "vrijbuiter," which also means pirate. The filibusteros of the nineteenth century had a nasty habit of taking over the governments of small Latin American and Carribean countries, just as Senators essentially take over the Senate when they filibuster in the familiar manner. In our own time, we might have called them 'hijackers,' since they hijack Senate operations for their own purposes.

"The 'modern' filibuster, of course, differs from what many of us recall from Jimmy Stewart's performance in Mr. Smith Goes to Washington. In Stewart's time, a would-be filibusterer had to talk, talk, talk and talk sometimes around the clock. No Senator could conduct an effective filibuster by himself, since he would eventually collapse. But two or more could operate as a tag team and bottle up Senate operations indefinitely, sometimes sleeping on cots in the Senate cloakroom. The United States government could be brought to its knees.

"After the notorious filibusters by Southern Democrats during the Civil Rights Era, Senate rules were changed to make the process less disruptive. A member of the Senate can now put a matter on hold. But sixty Senators can vote to cut off debate. And in the meantime, other Senate business can be conducted without hindrance. It's thus relatively painless for all concerned. There are no marathon sessions, no readings from the Cleveland telephone book, and no Jimmy Stewarts.

"It seems to me there are two possible reasons to support the concept of a filibuster. Neither reason, however, would support the use of the filibuster against the Estrada nomination.

"First, there are occasions in which debate has been called off prematurely by a majority that mistakenly believes that it has heard it all. Allowing a minority to force the majority to hear more can be a good thing. But if the issue is whether the Senate has fully debated the issue, there ought to be limits to how long Senate action can be delayed. A week? A month? Two months? Surely at some point it becomes obvious that the point is not the need for further debate but rather the desire to thwart the will of the majority. The current method by which the Senate rules attempt to limit abuse is the ability of sixty Senators to cut off debate. That method is ineffective when the Senate is split 59 to 41. It mustn't be overlooked that a majority of 59 is still a very large majority and at some point its will ordinarily ought to be respected.

"That leads me to the second reason that someone might favor the filibuster. Now and then an issue comes along about which the minority feels passionately and the majority does not. Deference to the will of the minority may sometimes be appropriate in those cases. The traditional filibuster is one way that the minority is able to register that passion.

"The problem is that the modern 'painless' filibuster is an ineffective way to separate passion from pique (or even mild disagreement). No one imagines that Ted Kennedy or Barbara Boxer would have been willing to bring the United States government to its knees–shut down the appropriations process, allow Social Security checks to bounce and freeze all federal activity--just to keep Miguel Estrada off the D.C. Circuit. Indeed, it is difficult to believe they would have been willing to stay up past bedtime for that purpose. The modern filibuster makes opposition easy and painless. Rather than allowing a small group of Senators to stop action they passionately oppose, small group can get its way on everything while paying little or no political price."

Indeed, the modern "painless" filibuster reminds me of the old Star Trek episode, "A Taste of Armageddon." In it, Kirk and his colleagues run across a couple of planets that have transformed war into a relatively painless affair. Computers designate who would have been killed if an actual attack had been carried out, and those persons are required to report to "disintegration machines" for ... uh... disintegration. But the ordinary business of the planet can be carried on. The problem, of course, is that the incentive to end the war is greatly reduced. Not altogether surprisingly, the war between these two planets turns out to be in its 500th year.

In the Senate, the "casualty" that must report to the disintegration machines is majority rule. But at least the ordinary business of the Senate gets conducted. Under the circumstances, however, it is not at all clear that's a good deal. To me at least, it seems worth it to shake things up a bit to restore democracy.

The obvious solution would be to change the Senate rules to forbid such things. The problem for the Republicans is that, unlike the House of Representatives, which adopts new rules by majority vote after each election, the Senate is a continously sitting body. Its rules, including its rules on filibusters, continue from year to year and can be modified only by a two-thirds majority vote. An ill-considered rule (as I believe the rule permitting such filibusters is) is thus difficult to modify or dislodge.

The next-best solution, according to Jim, is to seek the authoritative opinion of the President of the Senate that the filibuster is unconstitutional. I've not been quite sure what to make of this option. (My fellow Right Coaster Mike Rappaport is an expert in super-majority rules; perhaps I should ask him.) Surely, the Senate could not pass a rule requiring that all future declarations of war be unanimous (and that any modification of that rule also be unanimous). If they could do that, why not just let them pass a rule saying that King George III (or his heirs and assigns) gets to decide all issues. That can't be permissible. On the other hand, regarding all non-constitutionally mandated super-majority rules unconstitutional seems excessive. Where should the line be drawn? Where does this case fall?

February 26, 2005
Jerry Brown
By Maimon Schwarzschild

Mayor Jerry Brown now has his own blog. So far he has defended Oakland's curfew for prison parolees, and he has posted about Hunter Thompson and (of course) about blogging.

Brown used to do a radio call-in program, I remember, when he was Governor in the late 1970s. I lived in San Francisco then, and I sometimes listened in. I was impressed. Brown fielded all questions in an unconventionally intelligent and uncondescending way. He was especially good at making something worthwhile of the silly and the inarticulate questions.

He's an unusual politician, with a streak of curiosity and, sometimes at least, an analytic turn of mind. He's not such a bad advertisement for Jesuit education. Keep an eye on his blog.

February 25, 2005
Ibrahim Jaafari
By Mike Rappaport

An interesting analysis of the new nominee for Prime Minister of Iraq. A bit optimistic but you never know. I place my faith more on the supermajority requirement.

Johnson v. California
By Mike Rappaport

Jack Balkin asks some good questions about what Scalia and Thomas are up to in the most recent Supreme Court case where they voted to subject racial classifications in the prison context to lenient scrutiny.

February 24, 2005
Takings and Textualism
By Mike Rappaport

Orin Kerr has raised some interesting questions about Textualism and the Takings Clause. Since I am supposed to have dinner with Orin soon, I thought I would respond to his concerns and give us something to talk about. Orin questions how a textualist can reach the conclusion that the Takings Clause prohibits government takings for private use. He says:

The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required compensation or was for private use and doesn't require compensation at all. Oddly, though, I can't seem to find any self-described textualists who interpret the Takings Clause this way.
Orin asks a good question, one of the questions that original meaning textualists sit around and ponder when they meet. There are at least three possible ways that a textualist might derive a prohibition on private use takings from the Constitution:

First, one might conclude that a taking can only occur if authorized by an enumerated power and that the enumerated powers only permit takings for public use.

Second, one might conclude that a taking can only occur if authorized by the Necessary and Proper Clause (and an enumerated power) and that the public use requirement is derived from the term “proper” in that Clause.

Third, one might conclude that, although the enumerated powers and Necessary and Proper Clause would allow takings for private use, the Takings Clause prohibits such takings.
I believe that each of these interpretations is a plausible basis for prohibiting private use takings.

The first two are radically inconsistent with the existing understanding of how to read Article I, because the enumerated powers have been read very broadly and the term “proper” has been generally ignored. Nonetheless, it is entirely possible that people in 1789 would have said that the Commerce Clause, for example, did not authorize takings for private use. A private use taking was simply the kind of thing that the government was not allowed to do. Of course, it is a separate question how one defines public and private use. But if a use were deemed private, it might have been regarded as not a genuine regulation of interstate commerce.

The third possibility is that the enumerated powers convey broad enough authority to permit private use takings, but that the Takings Clause forbids such takings. There is nothing odd about this. While the Clause does not come right out and say this, it clearly implies it. In a world where everyone understands that private use takings are illegitimate and where language is included to require that compensation be paid for public use takings, it is obvious that the Constitution is prohibiting, not permitting, private use takings without just compensation.

Two questions can be asked about this. First, why did the Framers not write the Clause more explicitly to prohibit private use takings? Second, is inferring this implicit prohibition on private use takings consistent with textualism? As to the first question, while there are many possible reasons why the Framers might not have drafted it more explicitly, perhaps the most likely is that it was regarded as unnecessary. No one thought that a taking for private use was legitimate. If one had to make this explicit, then how many other possible contingencies would also need to be addressed? The rhetorical power of using general principles to protect rights would then have been lost.

But is this interpretive move consistent with textualism? While different people define textualism differently, it is certainly consistent with the original meaning textualism that I follow. Original meaning textualism is about what people would have reasonably understood to be communicated by a text. The text of the Takings Clause reasonably communicates that private use takings are not permitted. Even if one regards the context as doing much of the work here, that is not inconsistent with textualism so long as the text reasonably communicates the point.

This example should be contrasted with cases where implicit prohibitions are inferred even though the text does not reasonably communicate them. Consider Powell v. McCormick, where the Supreme Court construed the following language of Article I, sec 2: “No person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” The Court interpreted this language to implicitly prohibit Congress from imposing any additional qualifications on members of Congress. But, of course, this language does not say that, and it is not obvious, in the way that it is with the Takings Clause, that the Framers were intending to convey the idea that Congress would not have this power. (Of course, the result in Powell might be correct, but only if based on some other language in the Constitution.)

In the end, then, original meaning textualism can accommodate this implicit prohibition contained in the Takings Clause. But that does not mean that textualism permits anything. Sometimes – when the context is very clear – the text is fairly read as containing an implicit prohibition. Most other times, though, it is not.

Update: For other posts on this subject, see Stuart Buck, Eric Rasmusen, and Orin Kerr.

Are you really a white person?
By Tom Smith

From our Pacific correspondent comes this charming essay by the woman who introduced Ward Churchill, of recent fame, at his appearence at the University of Hawai'i. Extra points for those who can detect the considerable irony of the author, given her views of what makes a person white, being the one who introduced Professor Churchill, whose non-whiteness seems to be open to some doubt. There seems, in short, to be a double standard regarding who gets to pretend not to be white. Boy, this is getting complicated.

Trouble in Canadistan
By Tom Smith

Polar bear 1: What's that in the sky, Herb?
Polar bear 2: It looks like one of those new North Korean ICBM's, I forget what they're called.
Polar bear 1: Where do you suppose it's heading, eh?
Polar bear 2: I don't know, but I'm comforted by the fact that it is U.S. Americans, not Canadians (who are also North Americans, you know) who will be incinerated.
Polar bear 1: Well, I don't know, but in any event, our job is not to worry about geopolitics, but merely to catch fish and the occassional marine mammal, and eat them, eh?
Polar bear 2: Too true.

For the whole story, fish here.

Rice Plantations Re-Visited
By Gail Heriot

In my last post, I mentioned that slaves from West Africa (particularly the Senegal-Gambia area) supplied not just the labor but the original know-how for the rice cultivation in the South Carolina Low Country in the 18th and 19th centuries. "Dearieme" wrote asking if these slaves had farmed as free peasants while in West Africa or as slaves there too. I don't know the answer to that question, but it's an interesting one. If anyone out there knows, I'd like to hear from them.

February 23, 2005
Goodbye Yurp
By Tom Smith

The West: nice while it lasted.

A Primer on Lebanon and Syria
By Mike Rappaport

This is a good primer on Lebanon and Syria's intervention / occupation of that country from the Council on Foreign Relations.

Here is an excerpt on the role of the PLO:

What caused the war?
Tensions among Lebanon’s Christians, Sunni Muslims, Shiite Muslims, and the Druze Muslim sect. Those groups had long jockeyed for power and influence. Under the French occupation, which lasted from the end of World War I until independence in 1943, a “confessional” system evolved that reserved certain government posts for each religious group. Under this system, Christians had the upper hand in the national assembly—the Chamber of Deputies—that chooses the president. This arrangement bred resentment among Lebanese Muslims, especially as they grew to outnumber Christians.

In the early 1970s, the arrival of Yasir Arafat and thousands of his fellow Palestinian Liberation Organization (PLO) militants exacerbated Christian-Muslim strains and swelled the Muslim ranks with thousands of experienced gunmen. Lebanese Muslim groups supported the PLO fighters, recently expelled from Jordan, while Maronite Christian groups worried that PLO raids against Israel would invite retaliation and destabilize Lebanon. Throughout the 1970s, the PLO increasingly used Lebanon as a base from which to attack Israel. Israeli forces invaded in 1978 and 1982; after the second invasion, they remained and occupied a strip of southern Lebanon for nearly 20 years. Egypt, Iraq, and Libya supported Muslim factions in the civil war, while the United States and Israel backed Christian groups. During the long course of the conflict, Syria alternately supported the Christian amd Muslim sides.
The PLO, alas, has largely been a cancer in the region, attempting and sometimes succeeding in destabilizing Israel, Jordan, and Lebanon. In part, the PLO was stopped from seizing control of Jordan by Israel's assistance. It is sad that so much of the world cannot see what the effects of this organization has been.

Had the Palestinians accepted the original partition in 1967, or been willing to make peace at various points, the region would have been saved much suffering.

February 22, 2005
Those darn Canadians
By Tom Smith

Canadians don't think the US should promote democracy.

A Visit to Mansfield Plantation in the South Carolina Low Country
By Gail Heriot

One hundred and fifty years ago, rice was king in the South Carolina Low Country. There were about two hundred rice plantations along the Waccamaw, the Pee Dee and the Black Rivers near Georgetown, and they were responsible for about half the nation's rice output. Now thought of as a bit of a backwater, the Low Country was then home to an astonishingly large proportion of the wealthiest men in the country (and an equally astonishing number of slaves). To give you an idea: According to the census, in 1860, less than 900 slaveowners in the entire country owned more than 300 slaves. About a third of them were rice plantation owners--despite the fact that the land devoted to the cultivation of rice was tiny when compared to that devoted to cotton or tobacco, the more familiar Southern cash crops. Nationwide, fourteen slaveowners had more than 500 slaves, nine of whom were rice planters, including Waccamaw River planter Joshua Ward, the only person to own more than 1000 ... uh ... other persons. Maybe that's why they called the rice "Carolina Gold."

Slaves provided not just the labor for these vast plantations. They provided the original know-how. Prior to their coming to South Carolina, Europeans knew nothing of the intricacies of rice cultivation--the building of rice fields and dikes, controlled flooding, threshing, pounding, etc. Neither did the Indians, who occasionally gathered wild rice, but did not grow it themselves. It was the Africans who knew what to do. By the time of the slave trade, rice had been extensively cultivated in West Africa, especially in the Senegal-Gambia region, for centuries. And while not all slaves coming to America were knowledgeable about rice cultivation, some were, and they could and did teach others. Over time, improvements were made, but the methods remained fundamentally based on the West African example.

Today it's all gone. The carefully cultivated rice fields have been taken back by the wild. And it wasn't just the demise of slavery that ended it (although that was an important factor). Rice cultivation in South Carolina didn't end until about 1930, when South Carolina's soft-bottom rice fields lost out to the firmer-bottom rice fields of Louisiana and Texas, which could better support the weight of modern machinery.

What's left are the swamp creatures--wild boar, deer, herons, wild cats, bittern, ducks, raccoons, oppossum, and a few alligators--and, of course, the stately plantations homes built by slave carpenters, some of whom had been sent to Britain by the plantation owners to learn carpentry. This past weekend, I stayed at a bed and breakfast at one such home--Mansfield Plantation. Built in 1718 along the Black River, Mansfield comes complete with a live oak allee and a now run-down row of slave homes. (If you think the picture on the web site looks familiar, it may be because you saw it in Mel Gibson's "The Patriot.") Old out-buildings--the kitchen and an old schoolhouse--have been converted to beautiful (and romantic) guest bedrooms. Breakfast is served in the elegant dining r00m in the "big house."

Back in the 19th century, Mansfield was owned by the Parker family. And so it is today. John and Sally Parker recently purchased (or should I say re-purchased) what had been John's ancestral home. They are now in what will likely be the never-ending process of caring for, restoring, and improving this little piece of American history. Fortunately, it's not all work for them. When I arrived on Saturday, they were entertaining some of John's old college friends with an oyster feast and they kindly allowed me to join them. True Southern hospitality. You can't get that at the Hilton, you know.

Secret Memo reveals Rehnquist to remain CJ after he is dead
By Tom Smith

A secret OLC memo obtained by the Right Coast reveals Bush administration deep legal thinkers are exploring the constitutional implications of a person continuing to be Chief Justice after he has in fact died.

"The Framers believed in an afterlife," explained our unnamed source. "By 'life tenure' (sic) the Constitution is not necessarily referring to one's physical life. The Chief Justice would not be able to appear at oral argument, but he could presumably still read briefs and otherwise participate from whereever he ends up, perhaps Purgatory after all that voter discrimination stuff in Arizona."

The story's credibility is supported by reports that applications for Rehnquist clerkships include questions about mediumship and automatic writing experience. Our unnamed source would only say "we are not taking anything off the table."

Other justices declined to reply to emails requesting comments, except for Justice O'Connor, who allowed as that "back in Rattlesnake Gulch, we had a horse that lived to be 39, which is I don't know maybe 200 in horse years. "

Some originalists are apparently balking at the discussions of the possibility of a dead Chief Justice. "If we're going to be communicating with the dead, why don't we go right to the source and dial up JM [James Madison, co-author of Federalist Papers], that's what I want to know!" commented one former Reagan Administration official, now partner at a Washington consulting firm.

Professor Humboldt van der Smerlandiaorlunksk, paranormal researcher at the Princeton Engineering Anomalies Research project reports, in a related development, "electronic voice phenomena," or voices detected on blank, unused electronic media, that appear to coming from dead Virginians. "Zee dialect ees authentic 18th century Virgeeean," declared the professor. Indeed, through the static, one can hear what appears to be the phrases "Separation of powers," "limited gov . . . " , and "office." "Eeet ees not clear how vee should interpret these phrases," said the professor.

Firing Line On Line
By Maimon Schwarzschild

The Hoover Institution has digitised some of William F. Buckley's Firing Line programs over its more-than-thirty year (longer-than-Johnny-Carson) run: some programs are offered for sale in VHS form, and Hoover lists all the Firing Line episodes and is asking for expressions of interest in which further programs to make available.

Meantime, the website is offering free (Real Media) Firing Line clips and several complete programs, including the final Firing Line program; an hour-long interview with former President Reagan; an interview with Barry Goldwater; and a fascinating program about Whitaker Chambers with Chambers' biographer Sam Tannenhaus. (Keep scrolling down: the free downloads are noted as "Real Media".)

(My uncle Henry Schwarzschild was a Firing Line guest twice: once about capital punishment, which my uncle was against; and once about amnesty for Vietnam-era draft offenders, which my uncle was for. Hoover hasn't -- yet -- digitised these episodes, but if there is popular demand...)

February 20, 2005
The Harvard Faculty
By Mike Rappaport

Jane Galt captures my thoughts exactly:

Incidentally, having read Larry Summers' remarks now, I think it's pretty embarassing for academia that this scandal got as far as it did.
Of course, I am not sure the Harvard Faculty realizes it should be ashamed.

February 19, 2005
Prager on Religion and Morality
By Mike Rappaport

Dennis Prager argues for Judeo-Christian values. Here is an interesting excerpt:

"The oft cited charge that religion has led to more wars and evil than anything else is a widely believed lie. Secular successors to Christianity have slaughtered and enslaved more people than all religions in history (though significant elements within a non-Judeo-Christian religion, Islam, slaughter and enslave today, and if not stopped in Sudan and elsewhere could match Nazism or Communism).

In fact, it was a secular Jew, the great German Jewish poet Heinrich Heine, who understood that despite its anti-Semitism and other moral failings, Christianity in Europe prevented the wholesale slaughter of human beings that became routine with Christianity's demise. In 1834, 99 years before Hitler and the Nazis rose to power, Heine warned:
A drama will be enacted in Germany compared to which the French Revolution will seem harmless and carefree. Christianity restrained the martial ardor for a time but it did not destroy it; once the restraining talisman [the cross] is shattered, savagery will rise again. . . .

February 18, 2005
Posner on Privatizing Medicare
By Mike Rappaport

Richard Posner believes we should abolish Medicare:

The real issue is not the prescription-drug benefit but the overall cost of Medicare; currently (that is, without the prescription-drug benefit) that cost is running at almost $300 billion a year, which is about 3 percent of GDP. As a matter of economic principle (and I think social justice as well), Medicare should be abolished. Then the principal government medical-payment program would be Medicaid, a means-based system of social insurance that is part of the safety net for the indigent. Were Medicare abolished, the nonpoor would finance health care in their old age by buying health insurance when they were young. Insurance companies would sell policies with generous deductible and copayment provisions in order to discourage frivolous expenditures on health care and induce careful shopping among health-care providers. The nonpoor could be required to purchase health insurance in order to prevent them from free riding on family or charitable institutions in the event they needed a medical treatment that they could not afford to pay for. People who had chronic illnesses or other conditions that would deter medical insurers from writing insurance for them at affordable rates might be placed in “assigned risk” pools, as in the case of high-risk drivers, and allowed to buy insurance at rates only moderately higher than those charged healthy people; this would amount to a modest subsidy of the unhealthy by the healthy.
To me, the argument is clearly correct. Of course, I think you should privatize unemployment insurance.

Buckley and Noonan on Age and Death
By Maimon Schwarzschild

William F. Buckley writes about the ailing Pope John Paul II:
At church on Sunday the congregation was asked to pray for the recovery of the pope. I have abstained from doing so. I hope that he will not recover.
Buckley is a lifelong and faithful Catholic, and his column is not an announcement of apostasy, or of Diabolical possession.
So, what is wrong with praying for his death? For relief from his manifest sufferings? And for the opportunity to pay honor to his legacy by turning to the responsibility of electing a successor to get on with John Paul's work? Muriel Spark commented in "Memento Mori": "When a noble life has prepared old age, it is not decline that it reveals, but the first days of immortality." That cannot be effected by the hospital in which the pope struggles.
Buckley's column may be as much an exercise in introspection as a comment about the Pope. Buckley evidently has mortality on his mind. He retired from the National Review last June: according to the New York Times, "his decision, Mr Buckley said, had more to do with his own mortality".

As close to Buckley's heart, or even more so, was his sailboat, which he sold last year, a step "not lightly taken, bringing to mind a step yet ahead, which is giving up life itself".

Buckley has always shown a youthful spirit. Now approaching 80, he gives the impression that he doesn't relish the prospect of a long decline; even that he would do whatever might be necessary to avoid it.

It is an attitude with classical resonance. Also one with resonance for many of us today.

Buckley makes an interesting contrast with Peggy Noonan , who wants people to think about death and the Pope in a very different Catholic way. (Her theme is "offering it up", as Irish Catholics used to put it.) This Jewish RightCoaster can't judge between them on Catholic grounds: I suspect an old and wise church has room for both very different temperaments.

But if, or rather when, I have to choose -- as a Jew, not as a Catholic, in my case -- it will be Buckley's view for me, I think.

February 17, 2005
The Costs of Multilateral Realism
By Mike Rappaport

In the Wall Street Journal, Fouad Ajami discusses another of the sellouts by the Bush 41-Brent Scowcroft policy:

Truth be known, this steady encroachment on Lebanon was aided and abetted by the silence of the world. In one of those astonishing changes, the Syrian arsonists had come to be seen as the fire brigade of a volatile Lebanese polity. A generation ago, the Pax Americana averted its gaze from the Syrian destruction of the last vestige of Lebanon's independence: In 1990-91, America had acquiesced when the Syrians put down the rebellion of a patriotic Lebanese officer, Michel Aoun, whose cause represented the devotion of the Christian Maronites to the ancestral independence of their country. That was the price paid by President George Herbert Walker Bush for enlisting Syria in the coalition that waged war against Saddam Hussein for his grab of Kuwait. Pity the Lebanese: They had cedars, Kuwait had oil. We would restore Kuwait's sovereignty as we consigned the Lebanese to their terrible fate in that big Syrian prison.

February 16, 2005
NY liberals are in a bind and I don't care
By Tom Smith

If New Yorkers are so smart, why aren't they smart enough to figure out that they aren't any smarter than most people? In this story, we are treated to yet another one of those handwringing exercises, you know, oh, gosh, I want Bush to fail, but I feel guilty if that means a bloody fiasco in Iraq. Except that I am nobly rising above that, because I am aware that it's not about me, now please admire me for that. That's our cue to be empathetic, as if to take part in one of those unbelievably tedious conversations about what our feelings are about Bush and Iraq. When in fact, I don't care about comfort levels in Manhattan or Westwood. If Bush makes them uncomfortable, I'll try not to enjoy it too much, but it's hard not to enjoy it at least a little.

New York liberals confuse narcissism with political sophistication. Their grasp of history is notional, they don't read very many books, and just spend their time reinforcing each other's opinions. That gives them the illusion of being sophisticated while preserving their actual ignorance. Even the more academic of them--though make no mistake, their currency is money, not brains--tend to be short on knowledge of affairs. They are much more likely to be able to tell you what the best invite on the Hamptons is than whether there are lots of Muslims in Chechnya. America to Manhattan: we don't care what you think, and we are right not to.

Nothing could be more richly deserved than the discomfort of Manhattan liberals with Bush's successes. But I don't expect it to lead many of them to actually change their views, such as they are.

The primates of Harvard
By Tom Smith

This wonderfully lucid essay by Stephen Pinker about the Lawrence Summers kerfuffle suggests an image: In the hallowed, ivied hall at Harvard mill two hundred odd primates. At the front of the hall is their alpha male, and he is saying something the rest of them don't like. The shrieks of outrage! The somersaults! The tail chasing! Ahhhhhreeeeeek! The naked ape outrage! Summers violated The Taboo! He ate of the casava root without first spitting upon the ground. He climbed the forbidden bannana tree! Apes have a tendency to get upset, and it takes a long time for them to calm down.

Here's why you should privatize social security
By Tom Smith

Gary Becker (no big surprise) gets it. SS has grown into a giant welfare scheme for the elderly, who are not even that elderly. In fact, on average they are a lot richer than the people who are paying for them to be retired. Professor Becker is far more distinguished than I, so it is left to me to announce, it's just a giant rent-seeking scheme by the old, financed by the work of the young. Don't get me started. If the scheme were privatized, you would at least reduce the incentives for old folks to game the system, pushing for higher benefits, early retirement ages, and so on. Even all the yada yada about the looming insolvency of SS is biased in favored of the wrinkled minority. The idea is youngsters must pay and pay to make sure those bloated SS payments are ab-so-lutely guaranteed. It has to be rock solid, even if it means mom has to dump the kids at Cockroach Daycare and scrub the johns. It is a grotesque redistribution from the young and poor to old and rich. By privatizing it, people would have to internalize some of the costs of their decisions, such as when to retire, how much to save and so on.

Another point worth exploring would be whether privatization would put more capital allocation decisions in private rather than state hands. I can't think this one all the way through. But I know this. This argument would be worth making just because it might give Paul Kruger heartburn. It goes like this: The increase in private management of capital would increase economic growth, increase tax revenues, and therefore make the change self-financing. You would certainly have a lot of stock in firms that do stuff instead of government bonds sitting in accounts. Sounds good to me.

Conservative philosophers
By Tom Smith

Admit it. It's nice to read some philosopher who makes you say, "that's right," and "that's right too!" Novel, but nice. Here's a whole blogful of conservative philosophers. Check out this essay on the Rawlsian structure of "basic structure." The idea that the basic structure of society can be transformed in any way that is an improvement--I concede it can be destroyed: ask the Chinese that managed to survive the cultural revolution without being eaten--is such a perfect example of academic hubris and stupidity. The essay linked above does a nice job addressing it.

More on Rathergate
By Mike Rappaport

Now, this is interesting!

Josh Howard, the executive producer of "60 Minutes Wednesday" during Memogate and the only CBS employee who had the guts to suggest that the network admit to wrongdoing before Memogate became a mess is threatening CBS with a lawsuit if it does not sufficiently retract the original Bush Air Guard story and fully come clean about the role of upper management in the network's stonewall defense.

In a blockbuster story in tomorrow's New York Observer, TV reporter Joe Hagan reveals that Howard and two other CBS News executives, Betsy West and Mary Murphy, are refusing to go, insisting that they are being made into scapegoats by an "independent" commission designed to protect the corporate brass from damage.

Howard is threatening to sue the network for wrongful termination and is said to be willing to testify under oath and subpoena secret internal documents and emails from his former employers.

February 15, 2005
Still More on Polygamy
By Gail Heriot

Julie Carlson, a former Peace Corps volunteer, wrote to me in response to my earlier posts on polygamy. Her comments are very interesting and come from actual observation:

"I lived in Liberia (West Africa) for 2 years as a Peace Corps volunteer back in the early 1980s. During that time I knew many people who lived in polygamous relationships and some who were married to only one person. You said that the conventional view is that it weakens the hand of women. In some respects I agree, but in a culture where birth control is almost non-existent, having more than one "co-wife" helps space out child bearing for all the women. [unlike say, a typical woman in the early 1900's in America who had one husband and gave birth to 10, 12, or 15 children.] There are also the very real social benefits (help with child-rearing, cooking, cleaning) especially in an environment where just getting water back to your kitchen can be a big deal. But the downside came for women who married a man with the expectation that she would be his only wife, and he (usually for economic reasons - i.e. he moved up in the world) decided later on to take another wife. That could be a very ugly situation, full of pain for all involved. When I was there, Liberia was in transition from a more traditional culture to one that was more modern. It was in the mish-mash of the two that things became messy - young girls having children out of wedlock, older men preying on young girls, etc."

For some reason, I was particularly intrigued by the problem of the woman who married with the expectation that she would be her husband's only wife, only to be disappointed when he decided to take a second. Is this a problem that can be eliminated up front by contract law? Or is the difficulty of enforcement one more reason to be wary of polygamy?

I'm inclined to think that while strong contract law would help, in the end it's impossible to give complete protection to a first wife when her husband is hell bent on getting a second wife in a society that permits polygamy, unless you are willing to go the extreme of forbidding divorce. But the basic problem is not unique to polygamous societies. We have it here too. It's the problem of the first performer.

In a sense, marriages are like long-term contracts. Over the long haul, most good marriages are characterized by roughly equal benefits and sacrifices. But in the short run, such equality is rare. One spouse may work for years at a not-so-great job to put the other spouse through college or medical school. Had the sacrificing spouse not been married, he or she might have finished his or her own schooling instead. But the sacrifice is made to benefit the marital "community." In the long run (if there is a long run), they will both benefit.

In traditional marriages, it is more often the wife who performs first. (There are plenty of exceptions; my own ex-husband (bless him) helped make it possible for me to go to law school.) The most common way she does it is by bearing and and taking primary responsibility for rearing the couple's children. Doing so means that she has to interrupt her career (or at least give it less attention than she would otherwise). Children also make it somewhat more difficult for her to find another mate if her husband decides that he has made a mistake and wants out. And in addition to the problem of children, a wife is somewhat more inclined to make sacrifices to further her husband's career than a husband is to further his wife's. His career successes, on the other hand, are more likely to occur later in his career.

If the late performer can exit costlessly before his (or her) turn comes to perform, it's unjust, unless appropriate adjustments can be made. Sure, one could argue that newlyweds should be wary of "investing" in a marriage that might not last. But in the end, we want people to invest in their marriages. Two people collaborating can do more for themselves as a couple than they can for themselves individually. That's why we have contract law--to protect expectations thereby giving people the confidence to make these sacrifices. And that's part of why we have laws concerning dissolution of a marriage; a lot of it is about protecting that "first performer."

In a polygamous culture, the "first performer" problem may play out as Julie describes. Wife No. 1 had every reason to believe she would be the only wife. Indeed, that's what her husband told her way back when, and it mattered to her, so she had the whole deal put in writing. She now has spent the proverbial best years of her life bearing and rearing their seven children, the oldest of which are now adults, cooking their meals and generally making it possible for her husband to succeed in life. She's in no position to start over. One day her now-sucessful husband tells her that he wants a new wife. She points to the "marital contract," but he tells her that if she won't agree to "contract reformation," he will divorce her. Is he bluffing? Maybe, but she caves in any event. Wife No. 2 moves in the next day. Now Wife No. 1 must share "the profits" of her earlier sacrifices with a third party.

But the story is a familiar one in under legal regimes requiring monogamous marriages too. The difference is that when the late-performing spouse "breaches the contract" in a society that does not allow polgamy, it's often to demand a divorce (often with the intent of acquiring a trophy wife) and not just to demand an additional spouse. In some ways that's worse since it is an all or nothing sort of thing. In some ways it's better, since it will involve a clean break and avoid the humiliation of being the less-loved spouse for the rest of her life. Fundamentally, however, the problems are similar. And the challenge for domestic relations law is do the best it can to do justice in such a situation.

Does all this mean that I favor permitting polygamy, since it is not clearly and unequivocally worse than monogamy? Well ... no. But I do find the similarities and differences between the two systems interesting as they relate to the first performer issue.

Romulus and Remus
By Mike Rappaport

It is amazing how often ancient myths appear to be based on fact. Now there is even support for Romulus and Remus:

Legend has it that Rome was founded in 753 B.C. by Romulus and Remus, the twin sons of Mars, the god of war, who were suckled as infants by a she-wolf in the woods. Now, archaeologists believe they have found evidence that at least part of that tale may be true: Traces of a royal palace discovered in the Roman Forum have been dated to roughly the period of the eternal city's legendary foundation.

Where previously archaeologists had only found huts dating to the 8th century B.C., Carandini and his team unearthed traces of regal splendor: A 3,700-square-foot palace, 1,130 square feet of which were covered and the rest courtyard. There was a monumental entrance, and elaborate furnishings and ceramics. "It could be nothing other than the royal palace," he said, adding that during that period the average abode was about one-tenth the size.

The Affirmative Action Scandal
By Maimon Schwarzschild

Paul Campos, law professor at the University of Colorado, is eloquent about the Ward Churchill scandal at Colorado, and about the academic cult of affirmative action that makes Ward Churchill and his like inevitable:
Academics claim to despise censorship, but the truth is we do a remarkably good job of censoring ourselves. This is especially true in regard to affirmative action. Who among us can claim to have spoken up every time a job candidate almost as preposterous as Churchill was submitted for our consideration? Things like the Churchill fiasco are made possible by a web of lies kept intact by a conspiracy of silence.

The University of Colorado hired Churchill onto its faculty because he claimed to be an American Indian. Anyone who has the slightest familiarity with research universities can glance at his résumé and state this with something close to complete confidence.

Churchill thus represents the reductio ad absurdum of the contemporary university's willingness to subordinate all other values to affirmative action. When such a grotesque fraud - a white man pretending to be an Indian, an intellectual charlatan spewing polemical garbage festooned with phony footnotes, a shameless demagogue fabricating imaginary historical incidents to justify his pathological hatreds, an apparent plagiarist who steals and distorts the work of real scholars - manages to scam his way into a full professorship at what is still a serious research university, we know the practice of affirmative action has hit rock bottom. Or at least we can hope so.

As someone of generally liberal political inclinations, I support affirmative action in principle. And I have surely benefited from it in practice: My parents came to this country from Mexico in the year of my birth, and I spoke no English when I started school. In theory, the argument that aggressively seeking out persons of diverse backgrounds can enrich the intellectual life of the university has great force.

Affirmative action is based, in part, on the idea that it will help us understand the viewpoints of the conquered as well as those of the conqueror, of the weak as well as the strong, of those far from power as well as those who wield it.

Too often, these sentiments are abused by those who sacrifice intellectual integrity while engaging in the most extreme forms of preferential hiring. Ward Churchill's career provides a lurid illustration of what can happen - indeed, of what we know will happen - when academic standards are prostituted in the name of increasing diversity.
Read the whole thing. And a quiet "banzai" to Paul Campos. His moral honesty ought to be the norm in the academy. If it were, the American academy would be a very different, and a very much better, place.

UPDATE: On one point, Campos may even understate the problem on a lot of campuses. "The University of Colorado hired Churchill onto its faculty because he claimed to be an American Indian", writes Campos. Well, yes. But being an American Indian -- or in Churchill's case, falsely claiming to be one -- wouldn't in itself have been sufficient. There was also Churchill's paranoid leftist extremism, "which was his merit", as Dean Swift devastatingly wrote about a corrupt eighteenth century appointment; or as we might say a little geekily, Churchill's political lunacy wasn't a bug, it was a feature.

It is all too common at faculty hiring meetings for the fervent advocates of affirmative action to turn round and denounce -- and to vote down -- women or minority candidates who diverge in any way from leftist orthodoxy. The usual formula is "She isn't a real woman" or "he isn't a real minority". Affirmative action comes to mean favouritism, or in truth a complete suspension of all reasonable standards, not for "women and minorities" but for people with the extremist rhetorical stance that is de rigeur.

It is another, and bigger topic, how a similar sort of rhetorical extremism may now be "cascading" beyond the academy into other American institutions with cultural or demographic affinities to the academy, including mainstream journalism (cf. the likes of Paul Krugman, Bob Herbert, Frank Rich and others on the New York Times op-ed pages; Bill Moyers; and their many epigones), and including important elements of the national Democratic Party (exhibit A is the recent "reception history" of Michael Moore, but there are many more exhibits down the alphabet). If the Democratic Party is growing to resemble the American academy in its taste for leftist sectarianism, it may be good electoral news for Republicans. It is not good news otherwise.

February 13, 2005
Supermajority Rules in Iraq
By Mike Rappaport

Despite claims to the contrary, the results of the election in Iraq mean that the Shiites will have to negotiate and compromise with the Kurds and other secular groups to form a government. This fortunate result is largely due to the use of supermajority rules. According to the New York Times:

Iraqi leaders predicted Sunday that the Shiite alliance would try to form a "national unity government," containing Kurdish and Sunni leaders, as well as secular Shiites, possibly including the current prime minister, Ayad Allawi. Such a leadership would all but ensure that no decisions would be taken without a broad national consensus.

The main factor ensuring a relatively cautious Shiite majority is the complicated mechanism controlling the formation of the government. Under the rules, the prime minister will be selected by a president and two deputies, who must be approved by a two-thirds vote of the assembly. Practically speaking, that means the prime minister will have to be approved by a two-thirds vote. The Shiite alliance has nowhere near that many seats.
As John McGinnis and I have argued, supermajority rules are an important mechanism for promoting decisions by consensus. Their use in this context in Iraq seems quite beneficial.

Update: Tom Chatt at Upword has some interesting thoughts on supermajority rules.

DC is full of such nice people
By Tom Smith

Democrats celebrate one of their own.

Your UN at work
By Tom Smith

Those darn human traffickers from the UN.

February 12, 2005
Another Head
By Mike Rappaport

Eason Jordan, the chief news executive at CNN, has resigned. Chalk another one up for the bloggers. Dan Rather, Trent Lott, Howell Raines. All of these people deserved to go; none of them would have gone without the blogosphere.

I can imagine that some of the bloggers who pushed this story must be feeling a bit giddy. To suddenly have the power to impose just retribution is something. All I can say, though, is watch out for hubris.

February 11, 2005
Southern music snobbery rears its ugly head
By Tom Smith

That guy at Instapundit seems to be endorsing (at the end of the post) the sentiment that Linkin Park is a really bad act. I detect here that ugly thing, Southern music snobbery. I am not saying Linkin Park is one of the greats, like Leonard Skinard (sic), but they are authentically LA, a contradiction in terms, yes, but that is part of the point. Their musical range is limited. In fact, they seem to have only about five songs, that they endlessly "remix" or "reanimate." But there is something about their sound that really does capture, at moments anyway, the sort of desperate alienation inside a smooth, melodious groove that is the dark spirit of LA. All their songs seem to be about loss of self; not just the fear of it, but the it's long gone despair of it. The rap braggidocio stuff -- "We're Linkin Park" -- sucks, but that seems to be something rappers do. And though they are corporate now, they came up from the streets in the sense that they became popular locally, and got pushed up by fans, not ordained by some label. No, it ain't "Sweet Home Alabama," but LA is not Alabama. If you think it's sweet, you probably need to get your meds retuned. I am not saying Linkin Park is great or even particularly good as music. What I am saying is that it is emotionally articulate low culture. I offer the following challenge. Watch the good action flick Collateral and listen for when the Linkin Park track comes in at the emotional climax of the movie, when our kidnapped cab driver (Jamie Fox, a very talented non-Scientologist actor) has had enough. I think it works. The city, the violence, the powerlessness, the humiliation, he finally has had enough, and the Linkin Park track is just the thing to express the feeling raw. They're popular for a reason.

Hail Columbia
By Tom Smith

It's just that your sense of fair procedure is very unsophisticated.

Line in the sand
By Tom Smith

Interesting article in the UT about the controversy around designating more land in Anza-Borrego Desert State Park as wilderness. I should probably admit I am incapable of rationality on this issue. I live in the semi-desert of East San Diego County, at the foot of McGinty Mountain, the big mountain you look up at, if you'd ever played the Steele Canyon golf course (as I haven't--I hate golf--and it hates me even more). For ten years, I have watched off roaders gradually degrade the mountain, blazing new trails up its flanks, widening old ones, and leaving behind beer cans, litter, spent ammo, used condoms, cigarette butts, unidentifiable vehicle parts and exhaust. I have made feeble efforts to resist them. It's quite illegal to ride on the mountain itself, at least off the established road. The Nature Conservancy owns a good part of the land. Their stewardship could be classified as non-existent. The little signs they put up, with the slash through the little motorcycle, were torn down years ago. Yes, I could call the San Diego sheriff, and I have on particularly egregious occassions (oh boy! a drunken keg party featuring pickups spinning cookies! And on my street!), but they have better things to do than chase down ex-urbanites' beefs against off-roaders.

I've hiked in the Coyote Canyon in Anza-Borrego which seems to be the biggest chunk of land the state wants to limit off-road traffic in. It stands out as an exquisite piece of desert in country full of it. I am just at a loss as to why it is necessary to ride on your butt through it, messing it up, when there is other desert out there that has already been destroyed.

From a social policy point of view, it strikes me as a no-brainer. All you have to do is keep your eyes open for ten years to judge the compatibility of keeping land available for the next 50 years, let alone 150, and opening it to off-road traffic. All you have to do is walk around Anza-Borrego to see the effects of the traffic. You've got incompatible uses, and it's just hard to believe the most utility is to be gotten out using it all up in the next 20 or 30 years.

Yes, I know, this wouldn't be a problem in libertarian heaven. Users would have to internalize their costs, and they would get their membership in the Syndicate of Off Road Parks revoked if they mowed down a stand of rare botanicals (as they do on my mountain) instead of high-fives. In a world wide auction of the San Diego country desert, held by the TANSTAAFL council, I would be willing to take my chances and pay my share. But we don't live in that world. Instead, the land is owned by the state, and you have maybe 300,000 people in a region of 10 million who want to use it up and be done with it. That's not liberty; it's theft.

February 10, 2005
More Armchair Musings on Polygamy vs. Monogamy
By Gail Heriot

Polygamy existed for a long time (and in some places in the world continues to exist). What does it have to recommend itself?

It seems to me that polygamy is most likely to emerge as the dominant marital institution in cultures in which (1) A high birth rate would be seen as desirable; (2) Men tend not to remain in one place or to accumulate sufficient property to support a family until they are somewhat old ... say 30 or older; (3) Women (or should I say girls) are sufficiently mature to fulfill their responsibilities as wives and mothers at a significantly younger age ... say 16 or older; and (4) Because young people die from disease, accident and war at a fairly high rate, there are a lot more women (or girls) of marriageable age than there are men of a marriageable age. Under these circumstances, by refusing to "waste a womb" just because there isn't a marriageable man for each woman capable of bearing a child, polygamy will produce a higher birth rate than monogamy, and it will increase the chance that if a young mother dies, her child will have a stepmother already in place to help out. Moreover, the men who are getting edged out of the marriage market under such a system, don't realize they have been edged out. They think their time is coming in the future (though many of them turn out to be wrong because they die before they get a chance to marry.)

Of course, (mercifully) this is not the world we live in, and maybe that's part of why polygamy has so few advocates today. Few argue that the focus of our "marriage policy" ought to be to produce the highest birth rate possible. And even if they did, modern Western nations do not have the pyramid shaped-demographic (with lots of young people, fewer middled-aged people and fewer still old people) that used to characterize societies everywhere. Polygamy thus has no advantage over monogamy in its effect on the birth rate. Indeed, if polygamy were to somehow catch on, its most significant effect would be to create a pool of "left out" men--probably not an effect that anybody is looking to produce.

Scuttlebutt on the sub crash
By Tom Smith

This from our secret Pacific correspondent for you USN junkies. It's copied from an email, hence the formatting gliches.

To say that I've had a bad year so far would be a little short on the tooth I think. Last year was a good one for the boat. After spending 5 months away from home in drydock (Sandy Eggo) we got our second BA on ORSE (bad
>juju), received the highest score in PacFlt for a submarine TRE inspection, aced our mine readiness inspection with 4 out of 4 hits, completed 2 outstanding missions (will have to shoot you), and completed a early ORSE just
>before Christmas with an EXCELLENT. It was also the first year that Auxiliary Division had a Christmas standown since coming out of the yards in 2002. A-division also took the CSS-15 Red DC award for the second year in a row. My retention has been 100% since I checked onboard in Oct 2002 amongst 1st/2nd and turd termers.
>We were going to our first true liberty port 2 weeks ago, heading for Brisbane and fun in the sun. As this WOG knows, we were getting ready for our crossing the line ceremony and the crew was really upbeat, and hard
>charging, we had just completed a great year for the San Fran.
>To say the world went to shyte in a hand basket would be an understatement. I would put it closer to a nightmare that becomes reality. The seamount that is a large part of the discussion the last 2 weeks is un-named. The charts we carried onboard were up to date as far as we cantell. No modern geographic data for this area was available to us
>onboard as it is a remote area not often travelled by the Navy. We have one of the BEST ANav's in the fleet onboard, a true quartergasket that takes pride in his job. We have RLGN's onboard, when they are running, they are
>accurate as hell for our position, they also drive Tomahawks.
>We knew where we were. All of my depth gauges and digital read the same depths as we changed depth to our SOE depth for flank. I can't discuss alot, because I'm still a participent of at least 2 investigations....LOL.
>I was the Diving Officer of the Watch when we grounded. If you read the emails from ComSubPac, you will get some of the details, from flank speed to less than 4 knots in less than 4 seconds. We have it recorded on the
>RLGN's-those cranky bastages actually stayed up and recorded everything. For you guys that don't understand that, take a Winnebego full of people milling around and eating, slam it into a concrete wall at about 40mph, and then try to drive the damn thing home and pick up the pieces of the passengers.
>As for the actual grounding, I can tell you that it was fortunate that myself and the Chief of the Watch were blessed by somebody. I was standing up, changing the expected soundings for a new depth on the chart (yes, we had just moved into deeper water) leaning against the ship's control panel with a hand grip, and the COW was leaning down to call the COB on the MJ. The next thing to cross my mind was why am I pushing myself off of the SCP and where the hell the air rupture in the control room come from? I didn't know it, but I did a greater than 3g spiderman against the panel, punched a palm through the only plexiglass guage on the SCP and had my leg crushed by the DOOW chair that I had just unbuckled from. The DOOW chair was broken loose by the QMOW flying more than 15 feet into it and smashing my leg against a hydraulic valve and the SCP. I don't remember freeing myself from
>it. If I had been buckled in, I don't think I would be writing this. The COW was slammed against the base of the Ballast Control Panel, and only injured his right arm. He could of destroyed the BCP, he was a big boy. Everybody else in control, with the exception of the helm, was severely thrown to the deck or other items that were in their way, and at least partially dazed. Within about 5 seconds of the deceleration! , we blew to the surface, it took that 5 seconds for the COW to climb up the BCP and actuate the EMBT blow. We prepared to surface right away and got the blower running asap, I didn't know how much damage we had forward but knew it was not good, I wanted that blower running. I would say that about 80% of the crew was injured in some way, but do not know the number. We grounded in the middle of a meal hour, just after field day, so most of the crew was up. Once we got the boat on the surface and semi-stable with the blower running the rest of the ship conditions started sinking in to our minds. We were receiving 4MC's for injured men all over the boat. I was worried that those reports were over whelming any
>equipment/boat casualties that could make our life worse. I had teams form up of able bodied men to inspect all of the forward elliptical bulkhead, lower level, and tanks below those spaces. I couldn't believe that we did not have flooding, it just didn't fit in. At one point I looked around in the control room, and saw the disaster. The entire
>control room deck was covered in paper from destroyed binders, and blood. It looked like a slaughterhouse, we had to clean it up. I knew that Ash was severly injured and brought to the messdecks, he was one of my best men, and one of our best sailors onboard, he was like a son to me. After surfacing I was the control room supervisor, I had a boat to keep on the surface and fight and knew that if I went below to see how he was doing, it would teeter me on the brink of something that the ship did not need, the ship needed somebody who knew her. I have to say that the
>design engineers at Electric Boat, NavSea and others have designed a submarine that can withstand incredible amounts of damage and survive. We lost no systems, equipment, or anything broke loose during the impact. The damage to our sailors was almost all from them impacting into the equipment. The crew is a testament to training and watch team backup. When a casualty occurs, you fight like you train, and train like you fight. It kept us alive during that 2+day period.
>I've just returned from the honor of escorting my sailor home to his family. God bless them, they are truly good people and patriotic. The Navy is doing everything they can for them and they are learning how submariner's
>take care of each other. During the memorial and viewing on Saturday, CSS-15 provided a video from the coast guard of us on the surface and the SEAL/Dr. medical team being helo'd in, the family had this video played on 2
>screens in the background. It was a sobering reminder of what a hard woman the ocean can be. We had to call off the helo because of the sea state, it was becoming too dangerous for the aircraft, we almost hit it with the sail a couple of times. The sea would not allow us to medivac in our condition and that sea state.
>I was one of the 23 sent to the hospital that Monday. I was fortunate, my leg was not broken, just trashed/bruised. I walked on that leg for almost 24 hours before it gave out on ! me and they had it splinted. The SEAL made me
>promise not to walk on it, how do you refuse a SEAL? LOL. So I hopped around on a single leg for awhile, the other chief's were calling me Tiny Tim, LOL. "God bless each and every one! Except you, and you, that guy behind
>you!". The COB threatened to beat my @ss if I walk onboard before my leg is otay, he's about the only man onboard that I'd take that from, hehe.
>The crew is doing better, we've lost a few due to the shock of the incident. We will make sure they are taken care of. The investigation goes on, and I have a new CO. I will only say that the San Fran was the best damn sub in the Navy under CDR Mooneys leadership. We proved that. God bless him and his family no matter what happens in the future, he is truly a good man.
>I just need to get my leg healed and get back to fighting my favorite steel bitch.

February 09, 2005
Papal retirement speculation
By Tom Sm ith

There's probably some long, Italian word for "specualtion about whether the Pope will resign."

February 08, 2005
(Not) Recommending H.L.A. Hart
By Mike Rappaport

Brian Leiter posts this extraordinary excerpt of Isiah Berlin's recommendation of H.L.A. Hart at the end of World War II. Berlin cannot muster much enthusiasm for the "individual who became the preeminent English-speaking legal philosopher of the 20th-century." Berlin certainly blew this one.

By Gail Heriot

One of our regular Right Coast readers has pointed out that in my original post on the Conference on the Meaning of Marriage, I had promised to write something about polygamy and then got carried away by the topic of same-sex marriage instead. OK, then, let me say a couple of things about polygamy ...

The conventional view of polygamy (or at least polygyny) is that it strenghthens the hand that men are dealt in life while weakening the hand of women. That strikes me as wrong (though I am hardly the first to say so). Let's make the dubious assumption that appears to be implicit in this view--that a man is better off the more wives he can get (at least if that's what he wants), but that a woman is better off if she can be the sole wife. Under that view, some men are better off in a polygynous world and some men are worse off. When the numbers of men and women are roughly equal, if a man who is perceived by women as "highly desirable" will be able to attract more than one wife, some other poor guy will get no wife at all. Polygamy ensures that there will be a surplus male population with nothing to do. (And that, of course, is a reason to oppose it right there. Surplus male populations tend to make trouble.)

The effect for women is the same: Some are better off and some are worse off--though the game is not all or nothing the way it is for men. In a culture in which monogamy is the rule, women who are considered very desirable as wives can usually attract men who are considered very desirable in the marriage market. Women who are considered less desirable as wives may attract men who are considered less desirable as husbands. Most though not all people find someone. Switch to a rule of polygyny, and all bets are off. Some highly desirable women will be able to negotiate for a monogamous husband (though they may have to give up something for it). Others may settle for a husband who keeps his option to marry another. Highly desirable women may therefore as a group be worse off. But women lower on the marriageability totem pole may correctly regard themselves as better off. Under the monogamous regime, they could marry only men who are not already taken (and who are willing to marry them.) Now their option have multiplied. They now include married men who are willing to marry them. In other words, they don't have to marry their no good bum of a boyfriend unless all thing considered they think they're better off with him than with a "shared" higher status husband.

Polygyny survived for centuries in some cultures, so I figure it must have served some purpose. On the other hand, it appears to have zero support today beyond a few nut cases. Why? I'll try to offer my guesses on that tomorrow.

February 07, 2005
Campos on Churchill (Not Winston)
By Maimon Schwarzschild

Paul Campos -- a man of the centre-left, a law professor at the University of Colorado, and an old friend of several of us RightCoasters -- has it right about Ward Churchill, the University of Colorado "Ethnic Studies Chair" who cheers for Al-Qaeda and who calls the victims at the World Trade Center "little Eichmanns":
Should a serious research university consider hiring a fascist? This question doesn't have an easy answer.

After all, prior to World War II Europe produced several brilliant political theorists and philosophers who could be characterized as fascists, or proto-fascists, including Joseph de Maistre, Carl Schmitt and Martin Heidegger.
Campos rightly concludes:
But while the question of whether a brilliant scholar with a fascist streak ought to be considered for a place on a university faculty retains at least some academic interest, it has nothing to do with Churchill, whose writings and speeches feature an incoherent farrago of boundless paranoia, wildly implausible theories, obscene celebrations of murder, and atrocious prose.

The question of whether a serious research university ought to hire someone like Churchill is laughable on its face. What's not so funny is the question of exactly how someone like him got hired in the first place, and then tenured and named the head of a department.
Read the whole thing.

As Campos hints, of course, Ward Churchill's sentiments, although expressed unusually crudely and openly, are by no means unique among leftist academics. The Evelyn Waugh touch in this story is that Churchill, although hired as a fervid "Native American", may now turn out -- unsurprisingly, perhaps --to be perfectly without any American Indian ancestry. Quite white after all.

UPDATE: I have some sympathy, in a sense, for Ward Churchill. Like all too many other people in academia, he was hired, in effect, to be an extremist. Like many such people, he may really have precious little other academic or intellectual stock in trade. Until recently, you could be an extremist by talking like, say, Noam Chomsky. Now, much of the "mainstream" Democratic Party talks and evidently increasingly thinks like Noam Chomsky. This seems to be true for many Democratic leaders, as well as for a great many rank-and-filers. Nancy Pelosi, Ted Kennedy, Michael Moore, Jimmy Carter,, the Daily Kos, the Democratic Underground: all fractionally different to one another, no doubt; none identical to Noam Chomsky or to International ANSWER. But there is in common the haranguing defeatism, the isolationism; prone to conspiracy theories, apparently or actually convinced of the utter evil of the opposition, and indeed of the America which the opposition represents. If this is the tired old mainstream Democratic Party, what can you say if you are hired to be an extremist? It has to be hard on poor Ward Churchill. How do you stand out when the liberal median is already so well along into what Richard Hofstadter called the "paranoid style"?

FURTHER UPDATE: Paul Campos has kept digging. It appears that Ward Churchill has been busy at more conventional academic fraud -- plagiarism and fabricating history -- quite apart from what appears to be Churchill's fantasy that he has American Indian ancestry. Poor man. Why on earth fabricate horror stories about American Indian history? The truth was tragic enough. As for Churchill's actually being Indian:
The saddest aspect of Churchill's case is that, in regard to his identity, he might not be guilty of fraud in the narrowest legal sense. According to the News, Churchill has been claiming to be a Native American since his high school days in Illinois. It may well be that by this point he has genuinely convinced himself that he actually is an Indian.

Of course some people believe they're Napoleon. But that's not a good reason for giving them professorships in French history.
Ouch. Read the whole thing.

Just like your dad told you
By Tom Smith

He was right. Now just get it on there.

Desktop fusion
By Tom Smith

This is pretty mind-blowing stuff, it's not cold fusion, though just as potentially revolutionary, and it appears in the mainstream science mag for nerdy wannabes such as you and I. Yes, I subscribe, and you should too, if you want to impress all the really hot babes with the latest in scientific discoveries.

And there's this, some background here, and how you can create fusion in your own garage, assuming you have a moderately well equipped physics lab there. It could all turn out to be hooey, but you never know . . .

by Tom Smith

Here's a newish article in the Yale Law Journal about the economics of sharing. I don't know if it's good, but it looks interesting. It is by the recent hire of YLS about whom the former dean said, the importance of his scholarship could not be overestimated, which I noted was one of those self-contradictory sentences, e.g. "This is not a sentence." Still, it looks like an interesting article, even if the last thing I need is another article I should read.

Experts beware
By Tom Smith

This is what it looks like when an expert gets beat up by a smartish journalist. Ouch-o-rama. I'm just a simple country law professor, but whenever an expert starts reminding you that he is an expert, it is usually just before some smarty pants takes him apart by showing that he is rooting for one side or the other, contradicts himself, or whatever. One of the big challenges of leadership is knowing when to pay attention to experts and when to ignore them.

Something a lot of academic experts don't seem to understand is that the rules are different -- and thank God they are -- in public political controversy than they are at the academic conference. Assumptions that won't be questioned in the academy might be ruthlessly exposed in the rough and tumble of public debate. Lines of argument that lead to counterintuitive to most people results will count against you, not for you. Preening superiority is detested, not admired. It's a different world. Not better. That would be a value judgment. Just different.

Somerset Maugham As Seen by Another No-Nonsense Medic
By Maimon Schwarzschild

Anthony Daniels reviews Jeffrey Meyers' new(ish) biography of Somerset Maugham in the New Criterion, and gets it right about Maugham, I think.

(If you haven't read Maugham, you have something good to look forward to: of the short stories, my favourites are "The Alien Corn", "The Vessel of Wrath", and any of the Ashenden stories. The novels? "The Moon and Sixpence", more or less about Gauguin, or "Cakes and Ale"...)

Daniels is a medical doctor, which is what Maugham was trained to be as well. As Daniels puts it -- in tones that come close to parody of Maugham --:
In order to be able to continue to practice, doctors have quickly to learn a kind of detached involvement in the lives of their patients... A doctor who fails to discipline his emotions is unlikely to be of much use to his patients; therefore the learning of such discipline, until it becomes second nature, is as much a part of medical training as pathology and therapeutics. It might appal sentimentalists to know that nothing I have seen in thirty years as a doctor, from epidemic and civil war to accident, murder and suicide, has ever caused me a moment’s sleeplessness, and that a man could cut his throat in front of me without it affecting my appetite for dinner in the slightest.
Daniels sums up Maugham:
Appearance and reality were forever at war in Maugham. He was both respectable and bohemian; he was ironically detached from humanity and passionately involved in it; he was a social snob and an intellectual democrat; he craved emotional independence and unconditional love (which he never received). In the little communities of colonial expatriates of the South Seas and East Indies he found his perfect subject matter. Here were people torn between duty and inclination, monogamy and the promptings of instinct, convention and freedom. On the whole, they were very ordinary, neither cultured nor clever, but average specimens of their class and upbringing: but, as Maugham said, he would rather talk to a dentist than to a Prime Minister (at least from the point of view of gathering material for stories, life at [Maugham's Riviera] Villa Mauresque being another thing entirely).
Read the whole thing.

February 05, 2005
By Mike Rappaport

A pretty powerful illustration of what a loss of privacy might mean. Of course, nothing like this would really happen, but in a world where telemarketers can call your home, even though you don't want them to do so, and where businesses and governments can make mistakes about your financial (and other) obligations and pester you about things which you haven't done, there are some worries here. (Hat tip: Marginal Revolution)