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March 31, 2005
Please ignore those angry Jews behind the curtain By Tom Smith Am I understanding this correctly? Columbia University released its official report "Towards a Theory of Why Professors Who Just Happen to Hate Jews Are Not That Bad" (or whatever they are calling it) to the New York Times, on the condition that the Times not talk to the students who lodged the complaints against the professors, and the New York Times agreed? I mean, I know they usually only tell one side of the story, but do they want to do so by contract? I really think readers have the right to rely on the Times to tell only one side of the story out of ideological bias and laziness, not on purpose. Authors of Misleading Bankruptcy Study Have an Unusual Perspective on Rent Control Too By Gail Heriot Remember the bankruptcy study I wrote about in the National Review Online back in February? It made the front page in newspapers all across the country in early February with headlines like "Medical Bills Blamed in Half of Bankruptcies" and "Medical Bills Cause About Half of Bankruptcies, Study Finds." In early March, it made the rounds again, this time as fodder for op-eds in the New York Times, the Washington Post, and other newspapers urging rejection of the bankruptcy bill. The flaws in the study, however, are so numerous and glaring that I couldn't cover them all in the NRO essay. Reading it will only give you a taste. I learned today that this was not the first time lead author David Himmelstein and co-author Steffie Woolhandler, both Harvard University associate clinical professors of medicine, weighed in with an unusual medical perspective on a hotly contested political issue. In 1996, when Massachusetts was considering abolishing rent control, Himmelstein and Woolhandler protested with the argument that (as Woolhandler put it), "If rent control vanishes, dozens will die." Noting that stress and social isolation can and sometimes do result in heart attack and death, she stated, "One-third of our heart attack patients at Cambridge Hospital live in rent-controlled apartments. By allowing landlords to force them out, the governor and state Legislature are implementing the death penalty--a social policy sure to kill." Only heart attacks by rent-subsidized tenants were considered in this curious analysis. One could, of course, spin out similar tales of heart attacks by landlords who are unable to make ends meet because they can't charge fair market rents or of would-be tenants falling ill when they can't find an apartment at all, because nobody is willing to build apartments buildings that will only be rent controlled when completed. But evidently the good doctors were not inclined to go that far. My friend Jeff Jacoby of the Boston Globe had this to say at the time: I can't link you to Jeff's column or the Boston Globe story, since they are from 1996. They are on Lexis/Nexis. Instead, I will link you to one of Jeff's more recent columns on socialized medicine. Himmelstein and Woolhandler are co-founders of Physicians for a National Health Care Program, which advocates a single-payer system as the "only solution to solving the United States' many health care problems," so it's on topic. More on Columbia University By Mike Rappaport As Maimon mentions, Columbia appears to have behaved rather badly in its investigation of the alleged intimidation by Middle Eastern Studies professors of students who do not accept a pro-palestinian position. These fights between the Left Wing Academy and the MSM, on one side, and the blogosphere and other new media, on the other, just keep on occurring. The heavy handed tactics of Columbia seem outrageous. But thanks to blogs like Powerline (and the reporting of the New York Sun), these tactics are now being exposed and a price is being paid. Michael Schiavo in Hell (a play in one paragraph) By Tom Smith MS: Where am I? Gosh it is so hot here! Man with No Eyebrows: But I think you will agree it is a very dry heat. MS: Dry! I'll say! I'm so thirsty! I don't think I've ever been so thirsty! MNE: Just you wait. MS: What? MNE: You said you were thirsty? MS: So thirsty . . . MNE: Would you like some nice, cool water? MS: Please! MNE: Let me just check outside. (Goes to door.) Why, how curious. There are hundreds of people out here trying to bring you water. Would you like a cup? MS: Oh yes! MNE: Cold water or warm? MS: Cold! I don't care! MNE: You know, I think we actually have a procedure to determine whether I can give you any water. I don't think I'm permitted to give you water just because you're thirsty! We have rules, you know. MS: Rules? MNE: Oh, yes. Rules and rules. MS: Well, who do I have to ask? MNE: Oh, judges. We have lots of judges here. You may recognize some of them. MS: I don't have time for that! MNE: Trust me. You do. MS: All I want is some water, for Christ's sake! MNE: (Wincing) Please don't swear. (Years later . . . ) MS: Water. Water. I'm so thristy . . . MNE: Oh, look! A package! It seems to be a crate of chilled Evian water sent by Terri and her parents. Do you remember them? MS: Water? Water! Water! MNE: I would let you have some, but that would violate the temporary restraining order issued before the 99th interlocutory appeal to the 666th Circuit. If there's one thing we don't permit around here, it's contempt of court. (Sipping.) Mmmmm. I don' t really prefer Evian. I think it tastes a little soapy or something. Still, it is nice and cold. MS: Water! Huhnnnnnhuuuhhh! MNE: What are you saying, Michael? You seem a little inarticulate. Well, I suppose I know what you really want. You really want to follow the law, right? I knew it. And believe me, just as soon as I am permitted to do so, I will give you a nice big gulp of water, if there's any left, that is! Alas, I must toddle. I must go to visit your attorney. He's right next door, you know! Columbia University's Ward Churchills By Maimon Schwarzschild Columbia University's glossy alumni magazine, none too imaginatively titled "Columbia", is sent to all of us glossy and not-so-glossy Columbia alumni. The winter 2005 number carries a cover picture of Madeline Albright, and a fawning interview with her inside. Each and every one of Albright's interview answers is a denunciation of President Bush and the Iraq war: "it's a mess"; "a war of choice, not of necessity"; "we have to stop digging the hole deeper - we're still digging"; "we're less safe now"; "the people who ultimately surrounded current President Bush had the idea of attacking Iraq all along - the reasons for this are still relatively unclear, but...they piggybacked their plan onto September 11". The usual, more-than-faintly-paranoid talking points, I suppose, of the New Model Democratic Party. More interesting, in a sense, is "Columbia"'s admiring profile of Salo Baron, professor of Jewish history at Columbia from 1930 till his retirement in 1963 and author of a famous multi-volume Social and Religious History of the Jews. Columbia may have reason, just now, to emphasise to its alumni -- quite a few of them Jewish -- that Columbia is, or was, hospitable to scholars who are, or were, unapologetically committed Jews. Because the magazine also carries a queasy little item, entitled "Academic Freedom for All", which alludes to the public charges swirling round Columbia of systematic intimidation and bullying of Jewish students by the stridently anti-Israel Middle East Studies faculty at the school. "Columbia" duly reports that an "ad hoc faculty committee" has been established to "look into concerns about faculty conduct in their role as teachers". ("Columbia" calls the David Project, whose documentary film sparked the controversy, a "pro-Israel advocacy group", which it is not: "We do not endorse a political agenda", says the Project, "beyond Israel's right to exist peacefully among its Arab neighbors". Well, perhaps that does make it a "pro-Israel advocacy group" by Columbia's standards...) In fact, Columbia's "ad hoc committee" is heavily stacked in favour of the anti-Israel professors and against the Jewish students. Nat Hentoff, the veteran civil libertarian writer, points out (in the Village Voice) that two of the committee members signed "divestment" petitions against Israel: The two signers of the divestment petition have, of course, the right of conscience to use that method of criticizing Israel. What is significant, however, in their being selected for this special investigating committee is that while they were among 106 faculty members who put their names on that divestment petition, 360-plus faculty members opposed that petition in writing. How come President Bollinger appointed not a single one of those 360-plus to the committee? Or any others from Columbia's 3,224 full-time faculty?Another committee member "compares Israel's occupation of the West Bank to the Nazi occupation of eastern Europe". The committee is chaired by Ira Katznelson, a leftist warhorse. And so it goes. Yet even so "reliable" a committee as this is apparently too much for many Columbia faculty members, and there are reports that a (leftist) "faculty rebellion" is brewing. The moral, for me at least, is that whenever I'm moved to contribute money to higher education, I do it by way of the excellent American Council of Trustees and Alumni. Contributing through ACTA, I can be sure I will be helping serious and non-propagandistic academic programs that are worthy of support. And I can be sure I won't be supporting either the likes of Columbia's in-the-bag "ad hoc committee", or the still loonier "faculty rebellion" against it. UPDATE: The latest from Columbia's "ad hoc committee" innvestigation. Sheesh. And much more here from PowerLine, suggesting that "Columbia is flirting with police state type tactics in order to defend the pro-Palestinian police state members of its faculty." Today Should Be Proclaimed Charles Whittaker Day By Gail Heriot Who's your favorite Supreme Court Justice in history? John Marshall probably has a pretty large following. So does Oliver Wendell Holmes. And both John Marshall Harlans. My sentimental favorite is Charles Whittaker--an Eisenhower appointee whose opinions are now mostly forgotten. Nobody ever accused him of being one of the Court's leading lights. I love him for what he said on March 31, 1962, the day he resigned. Whittaker found the job exhausting, physically and emotionally. He said that he just wasn’t sure he had the talent necessary to do it well. He wanted to give somebody else a chance. You've got to love him too. How many Supreme Court justices have not really had all the talents the job requires? Darn near all of the them. But, unlike the rest, Charles Whittaker knew it. Here’s to you, Mr. Justice Whittaker. You had at least one of the important talents necessary for a good judge: You were a modest man. March 30, 2005
The Costs of Supermajority Rules By Mike Rappaport As readers of this blog will know, I have been a strong proponent of supermajority rules in a variety of settings, including Iraq. That said, there are costs to supermajority rules and Iraq is now experiencing them. One of the biggest costs of supermajority rules is that they often make it more difficult to reach agreement. The Iraqis appears to be suffering from this cost, as they have not yet been able to negotiate an agreement to form a government. The longer they wait, the more opponents of democracy will have ammunition for arguing that democracy cannot work in a multiethnic country like Iraq. That said, I cannot be too upset about the delay. Had a simple majority, rather than two thirds, been necessary to form a government, there would be more serious problems. The Shiite block would have formed a government long ago, but it would have had much less incentive to compromise with either the Kurds or the Sunnis. In the long run, that would be more likely to lead to internal fighting and also would have led to a worse regime. Pope would not want to be kept alive, Michael Schiavo says By Tom Smith (MSMBS) March 30, 2005, Nitwater, Fla. Michael Schiavo surprised the international community today with his claim that John Paul II, Pontifex Maximus and Vicar of Christ on Earth, told him at an Everglades cook-out and beer party that he would not want to be kept alive by artificial means. "He's a regular guy," claimed Schiavo. "He told me feeding tubes and all that [stuff] was not for him. Just give him a shot of vodka and hold a silk pillow over his face--that's what he wanted." Asked if anyone else had heard his conversation with the Pontiff, Schiavo claimed his sister in law and his great aunt Sally "Bubba" Ridiculio had also heard the conversation. Schiavo was unable to remember the exact date of the conversation, however, he said "it wouldn't matter, because it was a secret trip anyway." Schiavo added the Pope did not want "one of those expensive Catholic funerals." "He just wanted to be cremated and have the money he saved invested in once-in-a-lifetime opportunity I explained to him." A Vatican spokesman who insisted on anonymity would only state that the claim is what one would expect from a "podex maximus" such as Schiavo, but refused to explain further. Reached in her hospice, Mrs. Terri Schiavo said "water . . . " Sports Team Loyalty By Mike Rappaport David Brooks has a column on the conflict that many people who move from their hometown feel about whether to continue supporting their hometown baseball team or their new city's team. Brooks appears to be shifting his allegiance to the Washington Nationals from the Mets. I know exactly what he means. I remember well the conflict I experienced when I sat in San Diego watching the Padres play the Yankees in the World Series. Brooks discusses three reasons why you might love a team: For some people, the love of a team is like the love of one's nation. The team is the embodiment of the place we are from, our community and volk. If my love for the Mets is of this sort, then it is proper that I transfer my affections to the Nats. For I have immigrated to Washington, and we immigrants are obliged to set nostalgia aside and assimilate to our new civilization.While I am no longer much of a fan, I think my connection to the Yankees was more of the first and third type. But that suggests, correctly, that my attachment has declined. I no longer live in New York. And I no longer have faith in the ideal -- I often think that the financial advantages enjoyed by the Yankees are unfair. I still like the Yankees, but that is mainly because I have always liked them. Quantum difference engine By Tom Smith If this doesn't get a link from Glen, there is no justice. This month's Scientific American is reporting that some nanotech physics types thinks nano-wires may be used to construct switches for use in quantum computers. This would actually be a mechanical quantum computer. The non-technical explanation is that the wires are so small that when you twist them, they, uh, do some quantum mechanical thing that, um, acts like a quantum switch. Whether it works or not, it certainly has applications to science fiction. March 29, 2005
The Switch in Time that Saved Nine By Gail Heriot Today is the anniversary of the 1937 decision in West Coast Hotel v. Parrish and Justice Owen Roberts' famous "switch in time that saved nine." Some background for non-lawyers (and forgetful lawyers): The Constitution doesn’t say how many justices the Supreme Court must have. So when Franklin Roosevelt proposed that Congress increase the number of justices on the Court, he wasn’t proposing anything unconstitutional. He was, however, fighting a tradition. The Supreme Court had had nine since 1869 and prior efforts to change that had not met with success. FDR's motive was transparently political. He was seeking some way around a Court that had held much of his New Deal to be unconstitutional--often in 5-4 decisions. He proposed adding a new justice for every sitting justice over the age of 70--something to help these poor fellows out with their crushing work load. Before he could carry out his threat, however, Justice Owen Roberts, in a move forever dubbed as the switch in time that saved nine, dramatically came ‘round to FDR’s way of thinking. The court was then 5-4 in FDR’s favor. If Roberts was intimidated, he probably shouldn't have been; the court-packing scheme was opposed by most of the public and most members of Congress. But when the proposal failed in the Senate on July 22, 1937, I doubt FDR shed any tears. He'd already won the war. West Coast Hotel itself concerned the constitutionality of minimum wage laws. Arnie By Tom Smith There are so many reasons to love Ahnold. Including when he said (I quote roughly) "to drive my enemies before me, and hear da lamentations of da women." March 28, 2005
Volokh versus Stone on Freedom of Speech By Mike Rappaport An interesting exchange, over at the Legal Affairs Debate Club, between Eugene Volokh and University of Chicago Law Professor Geoff Stone. Stone appears to argue for an expansion of antidiscrimination laws to cover discrimination based on political views: Interestingly, although we routinely prohibit private discrimination of the basis of such characteristics as race, religion, and gender, we almost never prohibit private discrimination on the basis of political expression. For some reason, we seem to think that although a fast food chain shouldn't be allowed to deny employment to blacks, Buddhists, or women, it's perfectly "legitimate" for it to deny jobs to Socialists or Libertarians, or people who voted for Ralph Nader.Eugene Volokh answers the argument: The premise of most antidiscrimination laws and social norms is that it's wrong and usually irrational to dislike people because of their race, sex, or theological beliefs. We hope condemning such discrimination will persuade customers and employees to be more tolerant, especially since tolerance is rational and practical, so the burden on employers of having to hire disliked minorities will decrease. And the correlation between behavior and race, sex, or theological belief is quite weak.And then, amazingly, Stone seems to concede that Eugene is right. These are really excellent points, Eugene. They help explain why we treat private discrimination on the basis of race, religion, and gender differently than private discrimination on the basis of political viewpoint.That doesn't happen too much in the academy. March 27, 2005
Terri Schaivo would not have wanted Catholic funeral, says husband, remembering conversation from some time or other By Tom Smith This tells you what you need to know about Michael Schiavo. His siblings' testimony that Terri said she would not want to be kept alive by machines seems doubtful, but who knows. What is utterly implausible is that anyone who was even casually Catholic would not want a Catholic burial. I gather Terri was a fairly serious Catholic. The only plausible explanation for not giving her one is that that is more convenient for Michael, notwithstanding the profound emotional pain it inflicts on her parents. Not giving a Catholic a Catholic funeral is roughly equivalent to chopping off of Roman's head so there is no mouth to put the coin in, or leaving a Greek to decay on the battlefield or gouging out the eyes of an American Indian. You just don't cremate a Catholic woman and give her a non-Catholic burial, unless she has entirely rejected the faith of her birth, or unless you don't give a damn about what she would have wanted. Michael probably knows that. And doing that reflects on everything else he has done. What an unbelievably selfish thing. Are we supposed to believe he needs to have Terri's ashes in his family plot, given the circumstances of her death? Is he going to have time to visit her grave given his current duties to his living wife and children? It would seem the just thing to do would be to console himself with his living family and let Terri's parents have their dead daughter. He can already get another wife. Oh that's right. He has. But maybe the guy is the heartless villian some say he is. To deprive Terri's parents of even a grave to visit would be the act of depraved man, acting out of a diseased hatred for his in-laws. It puts the lie to all the talk about how he was only trying to do what Terri wanted. It is all but impossible to believe Terri would not have wanted a Catholic funeral, so whose wishes are we worried about now? Maybe the right-to-die people would like to defend not caring about her wishes concerning a funeral, not the law of it, but the justice of it. It may be Michael wanted his wife to die, but does he really need to keep her corpse as well? Maybe we should start a fund drive so we could buy it from him. And maybe there should be an autopsy. Insisting on a cremation under the circumstances is more than a little bizarre. Or maybe the ACLU has an opinion on this. I can hardly wait. They could deploy both their expertises as right to die slowly advocates and criminal defendant's lobby. There must be some kind of right not to have your dead wife autopsied just because how she got brain damaged is a little vague. Call it, the right to have one's wife cremated quickly, especially if her parents think you strangled her. I mean, what good is the right to cremate if you can't use it when you need it? And there's probably some sense in which it is just another sign of the coming fascist theocracy not to just dump her in hole somewhere. It's probably some kind of right to dispose of your wife's body as you want to. Perhaps one of those feminist issues. Just one final opinion. The Democrats probably feel pretty smug about this, and we'll no doubt hear some nauseating comments about how Terri is finally at peace from those who were so eager to see her so. But this is not going to help them. For every New York Times reader who clucks about Ayatohla Delay, there are about three twice a year church goers who will have been thoroughly creeped out by the Dr. Death Democrats. The patently insincere efforts of Howard Dean et al to ingratiate themselves with religious Americans is not off to a very strong start. Bad judge By Tom Smith I found this analysis by Hugh Hewitt pretty persuasive. It seems to me hyper-technical to say, as the 11th Circuit apparently did, and as Ann Althouse approves of their doing, that the statute Congrees passed gave federal courts jurisdiction to hear de novo any federal claims TS happened to have, without actually giving her any such claim, if she didn't already have one. Federal jurisdiction is a notoriously tough area (at least I am notorious for not knowing it), but I don't see how this reading makes the statute anything but a nullity-- something you should avoid in reading statutes. So, if the law was intended only to let federal claims be litigated on TS's behalf, why would you need a statute giving federal courts the jurisdiction to do that? Don't they already have jurisdiction over federal claims? On the other hand, if the idea was to let certain state law issues be relitigated de novo as federal issues, well, you would need a statute for that. Even hard-core textualists would be disinclined to read a federal statute so that it made no new law, especially when the intent was pretty clearly to do something. It is one thing to say, as between doing two things, what the statute actually says, and what Congress seems to have intended, you have to do the former. It's quite another to say you have to do the former, even if your reading of the statute gives it no effect at all. I am also enough of a realist to think what happened here is that the Clinton-nominated judges on the 11th circuit found the TS statute and the way it was passed very distasteful, were out of sympathy with the underlying "pro-life" philosophy, and so were happy to find a reading of it that frustrated Congressional intent. Of course, it is at least as hard to know what is going on inside the brain of a federal judge as it is to know what is going on inside the brain of Terry Schaivo. But in Terry's defense, there is no reason to suspect she is deliberately doing the opposite of what her job is supposed to be. Wisse on Sexual Correctness at Harvard By Mike Rappaport Harvard Professor Ruth Wisse has an interesting piece for Commentary on the Summers affair. She has a different take on Summers's motivation than most people do. She does not believe he capitulated: Why did Summers feel it necessary to apologize, as he did repeatedly the minute the first newspaper reports appeared, and then again in facing the faculty on February 15, and then again and even more abjectly at a second faculty meeting a week later? Why didn’t he defend his views, or at least his right to express them? March 25, 2005
Is a Faculty Rebellion Brewing at Columbia University? By Gail Heriot Here's what the New York Sun is reporting:
Nader on Terri Schiavo By Maimon Schwarzschild This might not be what you would have expected: A profound injustice is being inflicted on Terri Schiavo," [Ralph] Nader and [Wesley J.] Smith asserted today. "Worse, this slow death by dehydration is being imposed upon her under the color of law, in proceedings in which every benefit of the doubt - and there are many doubts in this case - has been given to her death, rather than her continued life."I would certainly cancel all other engagements to watch a debate between Nader and Bill Buckley on the subject. Maybe it is painless By Tom Smith This is just anecdotal, but it would be good to think dying of dehydration in Terri's circumstances would be painless. I had not heard the ketosis can simply suppress desire for food and water. March 24, 2005
Rare wisdom By Tom Smith This is the wisest thing I've read on the Terri S affair. I do think some on the right, such as the lovely Anne Coulter (lovely but sometimes insane), are going off the track turning this into a judges gone wild issue. I think it better illustrates how an average judge can get things wrong, even if that is clear only in hindsight, and then those mistakes can ripple outward. In retrospect, it seems like it was a mistake to give Terri's guardianship to her husband, given the poisonous relationship between him and her parents. And the parents aren't faultless in this either, perhaps. But it is just too obvious that it is unsupportably cruel to her parents not to let them take custody of their helpless child at this point, given that they want her and her husband does not. People speculate about her husband's character, but his actions rather speak for themselves. He seems to be using his control over Terri's fate as a way to even the score with the in-laws he now hates. Or that looks like a plausible theory anyway. Something else not much commented on is what this tells us about laws like Florida's. Statutes which attempt to apply the last wishes of a now permanently incapacitated person seem deeply flawed. I don't think much of this sort of hypothetical autonomy reasoning. I mean, who cares, really, what Terri might have said about wanting or not wanting to be kept alive, especially if it wasn't in a considered way. Especially if the evidence is weak, it should be trumped by what is in the best interests of the person now. If that had been the law Florida judge Greer was applying, perhaps he would have made the parents guardians. Also, legislatures should not just favor spouses over parents by default in deciding who is to be a guardian. We don't live in a cleave to your husband or wife world anymore. Parents and blood siblings are much better choices, I would bet, for looking out for one's interests than spouses where the marriage has been brief and there are no children. As to the politics, I am happy to let the Democrats hove to the line that Republicans irrationally favor life, are soft and sentimental about things like dying daughters, don't understand brain science and when people need to be put down, and use the terms person, baby, life, kill and wrong, far too freely. Yes, Kerry was scary for a while, but we have to learn to trust the Democrats on these things. Science and Schaivo By Tom Smith This is interesting, and one of the few times I've linked to a left wing blog approvingly. It shows, apparently, an actual CAT scan of Terri's brain, with commentary from some anonymous PhD in neurophysiology. He says the damage to Terri's brain is so great and obvious that she could not be conscious in the sense of a reasoning, willing human being. My wife is an endocrinologist, dammit, not a neurologist, but I showed the image to her (without telling her anything except it was Terri's brain). Her reaction was "that's a very atrophied brain," and pointed out various features indicating that. She said she thought it very unlikely that someone with such a damaged brain could be conscious. So that's actually a relief to me. But it doesn't go to the question of experiencing pain. Presumably someone could have lost their ability to engage in higher brain functions and still feel pain. I have observed reptiles in the wild and in captivity, and they certainly act like they feel pain. It still bothers me a great deal that the legislature and judiciary of Florida have managed to bring about a state of affairs in which a human being, however brain damaged she is, is made to die of thirst. If it were my daughter, I would probably put a pillow over her face, and hope God would understand, even if the state of Florida could not. (I understand the Church would not either.) These days, if you are stuck in the hospital or hospice with terminal cancer, and your doctors are sophisticated, they will give you enough morphine to control pain, even if that dims and turns out your lights for good. And that works for me. But as far as I know, Terri's not on a morphine drip or anything of the sort. I have read reports that doctors say she won't feel a thing, but I'm skeptical of that. I've also read that her wonderful husband has refused to let Terri be given morphine in the past, and I don't know whether to believe that either. Bill Buckley and the End of Life By Maimon Schwarzschild Bill Buckley writes about Terri Schiavo, and he is by no means sure that she should continue to be kept alive: There was never a more industrious inquiry, than in the Schiavo case, into the matter of rights formal and inchoate. It is simply wrong, whatever is felt about the eventual abandonment of her by her husband, to use the killing language. She was kept alive for fifteen years, underwent a hundred medical ministrations, all of them in service of an abstraction, which was that she wanted to stay alive. There are laws against force-feeding, and no one will know whether, if she had had the means to convey her will in the matter, she too would have said, Enough.The Schiavo case seems to be something of a Rohrschach test of how people feel about the end of their own lives, and what they want (or at least now think they want) for themselves. As for Buckley, it has struck me before that he dreads a lingering old age. Said I a month or so ago: 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.His column about Terri Schiavo only reinforces my sense that Buckley is thinking hard about his own end, and that he himself has no desire to linger -- or intention of doing so. Biased doctor thinks Terri might be conscious By Tom Smith Perhaps the most disturbing thing about this story is the implication that a doctor who is publicly right-to-life cannot render a sound clinical judgment about Terri's neurological state. Professors at prestigious medical schools are quoted to the effect that, oh, he's a Christian, you know, so his judgment can't be trusted. Now there's a point. If a doctor is horrified at the idea of putting a living, conscious human being to death, you really have to doubt his scientific acumen. A true scientist would want to starve her to death, just to gather the data. The neurological exam took 90 minutes, but was not "complete," we are told. When was the last time a doctor took 90 minutes to examine you, for any reason? I went with my dad through a cancer diagnosis and chemotherapy, and no doctor ever spent 90 minutes with him, or 60. What an unbelievable crock. If a highly qualified neurologist spends 90 minutes with a patient and concludes there really might be somebody home, that is, by any remotely rational standard, a pretty good reason not kill the person by dehydration. If she is there, make no mistake, there is a good chance she will experience an exquisitely painful death. It's not the sort of thing most people know about, but I can tell you among climbers, wilderness sorts, sailors and the like, it is well known that dying of thirst is one of the very worst ways to go. T.E. Lawrence ("of Arabia") knew of thing or two about thirst, and about suffering, and he describes dying of thirst in Seven Pillars of Wisdom as something feared greatly even by the Bedu, who were almost entirely impervious to pain. It is a very slow, very painful death to the conscious person. Dying of thirst is being tortured to death. It's no accident that the one thing Jesus complained about on the cross was thirst. People who keep dogs penned up until they die of thirst are quite rightly prosecuted for animal cruelty. I understand well how the Florida and federal courts got themselves into this mess, and why it would be very difficult even for a wise judge to extract himself from it. But the fact remains that the consequence may well be inflicting horrible and unnecessay pain on an innocent woman for no better reason than to satisfy the selfish motives of her former, in all but a technical sense, husband. Peggy Noonan asks some of the right questions: I do not understand the emotionalism of the pull-the-tube people. What is driving their engagement? Is it because they are compassionate, and their hearts bleed at the thought that Mrs. Schiavo suffers? But throughout this case no one has testified that she is in persistent pain, as those with terminal cancer are. If they care so much about her pain, why are they unconcerned at the suffering caused her by the denial of food and water? And why do those who argue for Mrs. Schiavo's death employ language and imagery that is so violent and aggressive? The chairman of the Democratic National Committee calls Republicans "brain dead." Michael Schiavo, the husband, calls House Majority Leader Tom DeLay "a slithering snake." Everyone who has written in defense of Mrs. Schiavo's right to live has received e-mail blasts full of attacks that appear to have been dictated by the unstable and typed by the unhinged. On Democratic Underground they crowed about having "kicked the sh-- out of the fascists." On Tuesday James Carville's face was swept with a sneer so convulsive you could see his gums as he damned the Republicans trying to help Mrs. Schiavo. It would have seemed demonic if he weren't a buffoon. Why are they so committed to this woman's death? They seem to have fallen half in love with death. What does Terri Schiavo's life symbolize to them? What does the idea that she might continue to live suggest to them? Why does this prospect so unnerve them? Again, if you think Terri Schiavo is a precious human gift of God, your passion is explicable. The passion of the pull-the-tube people is not. I do not understand their certainty. I don't "know" that any degree of progress or healing is possible for Terri Schiavo; I only hope they are. We can't know, but we can "err on the side of life." How do the pro-death forces "know" there is no possibility of progress, healing, miracles? They seem to think they know. They seem to love the phrases they bandy about: "vegetative state," "brain dead," "liquefied cortex." . . . There are passionate groups of women in America who decry spousal abuse, give beaten wives shelter, insist that a woman is not a husband's chattel. This is good work. Why are they not taking part in the fight for Terri Schiavo? Again, what explains their lack of passion on this? If Mrs. Schiavo dies, it will be because her husband, and only her husband, insists she wanted to, or would want to, or said she wanted to in a hypothetical conversation long ago. A thin reed on which to base the killing of a human being. Peggy's right. In fact, I think the Atrios's and Carvilles of the world get a thrill out of the fact that by cheering on the killing of somebody, they can hurt the people they hate, those dreadful Christian conservatives, so much. This is not just about death, but about hate. Of course, they do go together. In fact, they could care less about Terri. What they care about is the chance to inflict a defeat on their enemies. They care about Terri even less than her "husband" apparently does. They could join her husband in asking "when is that bitch going to die?" When indeed. Maybe she's holding out for Easter. Though Good Friday would be appropriate.More Joy of Chess By Tom Smith Pejmanesque has an interesting chess story here. To which I can add one from yesterday, when once again the Local Catholic Academy Chess Club, coached by me, met. Helping out was my Contracts student, Chris, who seems to be a strong player, certainly compared to me anyway, and also, I noticed, a nice way with kids. Quite a bit nicer than I am, I noticed. I made this observation to my lovely wife Jeanne. "He hasn't had to put up with them as long as you have." A good point. Though I love doing it of course. Though weird things happen. This is quite apart from the questions such as "Can the King move two spaces to get out of check?" When it was time to clean up yesterday, I told everyone to put away their own pieces, both to encourage responsibility and to make my life easier. I noticed everyone had put away their pieces except my son, Patrick. "Patrick!" I said in my habitually pleasant tone, "put away your pieces, NOW!" "I can't," he said. "What do you mean you can't. Just stop standing there and put them away! We need to get going!" "I can't touch my pieces," he insisted. I was getting annoyed. Patrick is an extremely clever child and has gotten something of a reputation in the family unit for being very canny at avoiding chores. "You can't touch them? Why not?!" I managed to say without shouting. "Because Jason licked them!" We have had many other infractions at the chess club, including fights, throwing of pieces, use of inappropriate language and merciless goading of persons losing games, but this is the first time we have had somebody lick chess pieces so as to inhibit another person from touching them. Apparently Patrick's friends have discovered that he will refuse to touch, let alone eat, anything that has somebody else's spit on it, a not entirely irrational disposition to have. I sighed and put them away myself. If I remember, I will wipe them down latter with a wipey. BTW I am finding this series pretty good for me, the aspiring but basicly untalented chess player, of moderate to no ability. March 23, 2005
The New SAT By Mike Rappaport This post, from Right Reason, is informative about the nature of the test and the reasons for its adoption. Is Michael Schiavo Off Message? By Gail Heriot Is Michael Schiavo the true voice of Terri Schiavo? Or is he a man with an enormous conflict of interest? Or both? It doesn't look good for him if the reports about what he said on the Larry King Show are true: "We didn't know what Terri wanted, but this is what we want." Update: This quote is all over the web and is mentioned in the WSJ Political Diary News Service, but I'm not convinced that it's fair. I've read the complete transcript now, and, upon reflection, it appears to me that he probably just misspoke and that he was trying to refer to his in-laws' views here and not his own. Referring to his in-laws, he said, "But this is not about them, it's about Terri. And I've also said that in court. We didn't know what Terri wanted, but this is what we want...." It's confusing perhaps, but to interpret the statement as a reference the Shiavo's own desire requires some reason to believe that he would suddenly refer to himself in the plural. For fairness's sake, I should also state that the WSJ mention of Schiavo's statement was probably accurate news reporting regardless of how the statement should be interpreted. The WSJ story was about how certain left-of-center organizations were giving the Schiavo story distance because they felt that Michael Schiavo was contradicting himself and therefore didn't want to get too close. Additional Update: Ah, I think I have it figured out. It's a transcript error. On the CNN Saturday Morning News on March 19th, they re-ran the clip of Michael Schiavo being interviewed by Larry King. This time the transcript reads: "But this is not about them, it's about Terri. And they have also said that in court. We didn't know what Terri wanted, but this is what we want." (Italics added). If this is the correct statement (and I suspect it is, since it makes more sense from Schiavo's standpoint), he is simply giving his take on his in-laws' position, not his own. The Student Bill of Rights By Gail Heriot I was up at the Cal State-San Marcos campus this afternoon and listened to a well-attended debate on Senate Bill 5, affectionately and officially known as the "Student Bill of Rights." Among the debaters was State Senator Bill Morrow, who is sponsoring the bill. I have very mixed feelings at this point. I tend to be uncomfortable when I hear about legislatures toying with the idea of exerting greater control over what happens in the classroom, even when it is done with a light hand as it is in Senate Bill 5. On the other hand, the number of faculty members who feel free to harangue their students on political issues (frequently in classes that have nothing to do with politics) is troubling, as is the breathtaking lack of ideological balance on many campuses. These problems are unlikely to disappear without prodding of some sort. The question is whether this (or something like it) is the right kind of prodding, and I guess I'll have to think about that. I thought Morrow comported himself well (as did all the debaters on both sides of the issue). I was particularly impressed by his willingness to modify the bill in response to reasonable concerns (he specifically stated that he planned some modification of the declarations in Section 1 (a)(1)(D)). I've re-produced below the operative part of the bill. It's modeled after a proposal by Students for Academic Freedom, one of David Horowitz's organizations. If anyone wants to voice his or her opionion, send me an e-mail and I will send it on to Morrow. By the way, for the benefit of those of you who are unfamiliar with California politics, I suspect there is little danger that this bill will pass any time soon. The state legislature is not just heavily Democratic; as a result of California's most recent re-districting scheme, political moderates in either party are rare birds, so cross-over votes from Democrats are unlikely. But things may change, and similar bills are being considered in other states, where they may have a better chance.
March 22, 2005
Power corrupts, absolute power corrupts absolutely, and even a little power corrupts pretty darn well By Tom Smith Turns out family values is big bidness. I have been hearing things consistent with this coming out of DC for a while. Another Conservative Philosophy Blog By Mike Rappaport Take a look at Right Reason -- it seems quite interesting. At Right Reason, there are two responses to Singer's consequentialism posted. While Roger Scruton attacks consequentialism generally -- as do many nonconsequentialists, he appears to reason about morality by assertion and authority -- Daniel Bonevac argues that consequentialism is largely consistent with common sense and rejects Singer's view as unjustifiably ignoring this font of wisdom. Bonevac concludes: "Bentham and Mill thus use common sense morality to answer Scruton's questions: How can one justify utilitarianism? How can one, on utilitarian grounds, ever know what to do? Their answers depend on a large body of agreement between consequentialism and common sense. When Singer jettisons common sense, he thus jettisons the classical utilitarian's answer to those questions. As far as I can see, he puts nothing in their place." Steyn is right again By Tom Smith Mark gets it right again on killing the inconvenient and post-life culture in the West. Via American Digest. When talent meets too much time By Tom Smith The Amazon review list as art form. Low art, but art. Warning:much of the humor, while funny, is in very poor taste. Sowell on the Schiavo Case By Mike Rappaport I have not really followed the Schiavo case, and have very mixed feelings about various aspects of it. Still, Thomas Sowell makes a strong case against the decision by the Florida state judge: Terri Schiavo's only crime is that she has become an inconvenience -- and is caught in the merciless machinery of the law. Those who think law is the answer to our problems need to face the reality that law is a crude and blunt instrument.(Hat tip: Powerline) March 21, 2005
A lovely little story By Tom Smith Wondering whether the judges might be missing what is going on behind the briefs in the Terri Schiavo case reminded me of this nice little incident from my childhood. My dad was a state court trial judge in Idaho and his district included a little town in the mountains called Idaho City. It was a mining town in pioneer days, with a probably well deserved reputation as a sink of iniquity. It is still nothing to write home about. It has a few souvenir shops, a hot springs pool, and a genuinely creepy pioneer cemetary that is haunted if anyplace is. My father was always pressing me and my siblings to accompany him on his junkets to hear motions or pleas in these places, in part of his ongoing campaign to raise lawyers, which was quite successful, as he produced one litigator, one federal judge, one prosecutor and one law professor. Anyway, that day he was hearing the guilty plea of this vile creature who had gunned down his wife one morning in a local bar restaurant general store. The Mrs. was apparently having her first drink of the day when hubby walked in with a big revolver (maybe a .45) and pumped one into her back. This of course in full view of the regulars in the joint. Idahoans being tough stock, she fell from the stool, but did not die, and crawled over to the frozen food section. So Wilbur or whatever he was called shot her a couple more times. The prosecutor then allowed as she was dead. My father questioned the defendant to make sure he understood what he was pleading to. Somehow my dad got the notion he might be trying to get smart and set up some sort of issue of appeal, which was touching, given that the defendant probably could not spell appeal, let alone create an appealable issue. Nobody asked him why he shot his wife; I suppose it wasn't necessary. But I wondered. After the proceeding, I was walking out of the courthouse, some sort of historic building, and I walked past the chain-link fence holding pen where our sharpshooter was being housed for the time being. He had struck a James Dean pose, and there was a very pretty 15 year old girl, in full flirt mode, obviously taken with our gun slingling hero. On the drive home I asked my dad if the slay-ee had a daughter and he said yes, a pretty 15 year old. The Idaho city James Dean was the step dad. I explained my hypothesis that pretty daughter was the causis belli between husband and wife that had ended so tragically or at least sordidly on the floor of the Idaho City saloon. My father agreed that it made sense. He sighed. Toward the end of his judicial career, he got really sick of violent crimes. Catholics oppose death penalty; Eugene's shot at episcopacy declines further By Tom Smith More US Catholics oppose death penalty than ever before. Which reminds me of a joke (yes, I stole it from Flight of the Phoenix -- but it bears repeating.) A priest and a rabbi were watching a boxing match. One of the fighters stepped into the ring, swung his arms around to warm up, and then quickly crossed himself. The rabbi turned to the priest and said, "Father, what does that mean?" The priest said, "If he can't box, not a damn thing." March 20, 2005
The Costs of the Death Penalty By Mike Rappaport As long as people are talking about the death penalty, I have a question. Does it save or cost money? Some of the posts in response to Eugene Volokh's provocative post simply asserted that the death penalty costs more. On the one hand, it saves money. Imagine that under the death penalty a 25 year old man would be executed, but without it, he will serve a 50 years sentence in prison. My understanding is that it costs a lot of money to house criminals in prison. I remember reading a $30,000 per year figure, but maybe it is more. Assuming that figure, life imprisonment costs $1.5 million. On the other hand, death penalty appeals, etc, cost money. Do they cost the system this much? I doubt it, but I don't know. Update: Gary Becker's most recent post says the costs of imprisoning someone is $40,000 per year. So that makes it an even $2 million to imprison the 25 year old for life. Terri Schiavo By Tom Smith I have not been following this controversy very closely, but you don't have to look at it very hard to sense something funky going on. I hope the federal legislation that would move the case to federal court does pass. Here are some questions worth asking. Would Mr. Schaivo benefit from a life insurance policy if Terri dies? That certainly seems relevant. Given that he is for practical purposes married to another woman now, isn't it odd to allow him to exercise the legal powers of a husband over his incapacitated wife? Even if the Florida laws of guardianship technically allow this, it hardly seems equitable, especially if the parents stand ready to speak for Terri, and do not suffer a conflict of interest. On the other hand, if Terri's parents want her to be kept alive, are they prepared to pay for it, or do they want her husband to pay for her care? Something an independent court could do, and I hope would do, would be to inquire who is really, all facts and circumstances considered, in the best position to represent the interests of the comatose woman. It might be her parents, her husband, or a guardian ad litem. On the politics of this, I think the Democrats are once again getting it way wrong. They may think they are standing up for the right to die with dignity, but it comes across as, oh boy! A vulnerable, compromised human non-person! Can we kill it?! Please?! Pretty please?! Planned parenthood also needs some remedial PR work. They really should want to avoid the whole Zis zing ees not human! Nine! Eeet must be liquidated! At vunce! schtick. I can't be the only person they are creeping out. If I were flacking for them, the first thing I would explain is that the slippery slope is a bad thing; you don't want to go down it. When people say, first you're killing fetuses, next you'll be killing people in comas, you should not reply, "yes, isn't it wonderful!" Ditto for the Democrats' line that the Republicans are interfering in a sacred family matter. When the blood relatives are for keeping the woman (brain-dead though she may be) alive, and the "family" consists of a "husband" who is living with his girlfriend and his children by her, allegedly on the proceeds of the malpractice settlement of his wife's case, your facts for not interfering with the "family's" decision are not too good. This matter just begs to be put in front of some non-hack, life tenure jurist. Maybe they have some in Florida. This would all be so much easier if Janet Reno were still AG. We could just send in a SWAT team, ship Terri off to Cuba (where they would know what to do with her), and be done with it. I wonder how little what's-his-name is doing. Probably chopping cane for the fatherland, wondering what shoes would feel like. Finally, I would like to go on record that, should I be in the hospital acting like a vegatable, before starving me to death, please offer me a stiff scotch. That might arouse me. If that doesn't work, my lovely wife Jeanne can decide what to do, unless she is living with some other guy, in which case all bets are off, especially if the guy is a dermatologist or some other over-compensated sort. I don't want to be starved to death. I hate dieting. If nobody has the stones to snuff me out, then they can just deal with me. I want to be cremated and my ashes scattered (if allowable under RC law), otherwise buried in a paper bag, in the mountains of central Idaho, northeast of McCall, close to the Payette River or one of its tributary streams. But please, nowhere near Florida. MY RESPONSE to Steve Strum is, no, I don't generally favor forum shopping, but I think what seeems to be going on here, or might be, if you believe the rumors, is that a hinky state judge has got a bee in his bonnet, such that he is determined to pull the tubes on a woman who might actually be alive. Let's just say my view of the Florida state judiciary has not recovered from Election 2000. I'm not saying federal judges should be brought in every time a state judge appears to be making a hash of things. But I'm not going to get upset here, given that federal judges intervene to keep convicted killers alive all the time. And this is being done at the express command of Congress. This seems to me a case in which Congress can legitimately act. As far as I know, Terry S. hasn't killed anybody. I suppose if she had, she'd be getting more support from the ACLU right now. In fact, maybe that's an angle. Put out a story that Terry actually once had a love child, but killed it, knowing that being unwanted, it would be better off dead. Presto, chango, she's sympathetic after all. BTW I read somewhere (and I'm too lazy to look for it now) that Terry S. has never even had a full neurological exam, with an MRI or a CAT scan. Can that be true? Good heavens, I took my son to get an MRI over the weekend because his knee hurts. Is Florida Canada or something? Apparently above when I refered to her as "brain dead," I was wrong. So if she's not brain dead, what is she? Would she feel pain being starved to death? It seems someone ought to weigh that against the oral testimony of her sorta husband that she would not want to be kept alive. I mean, really. You can't enforce an oral contract for more than $500 worth of widgets without a writing. You would think the mere "yup, that's what she said" of a former (in equity) husband would not be enough to terminate the spouse. And another thing. What are the feminists thinking on this one? O, right, I know. If this incovenient woman is not disposed of, that could somehow someday lead to some regulation of the sacred right of abortion. But, given that you can come up with, and any of us who went to college have heard it done, a feminist account of just about anything, how wearing socks is part of the patriarchal conspiracy or whatever, you would think that a husband trying to kill his wife in order to get the insurance money on her so he can carry on with another woman, would at least cross the mind of the average feminist as a plausible hypothesis. You would think you could say "Killing your wife is a feminist issue!" But no. It's all just,"next thing you know, they'll be trying to say we cain't kill fetuses!" STILL more information here. This blog seems elaborately balanced. I don't pretend to know what the real story is here. But I do think the right to die people are creepy, and if it is not about money, then I don't see why Michael Schiavo is fighting so hard to have Terri killed. If there was some reason to think she was suffering, that would be different. But if his view is that she really is the mental equivalent of an eggplant, and her parents desparately want to keep caring for her, then what is the harm, besides financial, in allowing her to live? Reviewing the history of the litigation, though, I can see why Judge Whittemore (sp?) implied he was unlikely to change the result. Every issue seems to have been thoroughly litigated. I suppose it is possible that Michael really believes she is dead already and what is going on now is just an offense to her dignity, but that still seems a hard line to take under the circumstances. One thing that strikes me as odd is that no reporter seems to have found out whether there is an insurance policy at stake, what Michael's financial condition is, and so on. And if he buys a new Corvette after Terri buys it, we'll never find that out either, any more than we know what Elian is up to. He has declined to answer questions about insurance. And it also looks like there is no way to make that a legal issue, at this point. What a mess. Serial killers and torture March 19, 2005
Economic Liberty By Mike Rappaport Democracy is good, but for there really to be a successful Middle East, economic liberty is also needed. Arnold Kling quotes this from an interview with Hernando De Soto: it takes you 549 days to get a license to operate a bakery in Egypt and that is with a lawyer. Without a lawyer, it takes about 650 days. In Honduras, it costs an individual entrepreneur 3.765 dollar and 270 days to legally declare, register, and start up a business.If it takes you nearly two years to open a bakery in Egypt, there will either be poverty or corruption, or both, even with democracy. Of course, democracy might cut back on some of this insanity, but by itself it seems unlikely to solve the problem. Update: And also consider this from the interview: To us the most important part of our work is that part that we call the diagnosis. When we are hired by heads of state, we form a team of maybe seven people from our side and a hundred from theirs. Then we draw a line and find out what’s inside the law and what’s outside the law. In the case of Egypt, we found that 92% of all the constructions and the land and 88% of all enterprises are outside the legal system. This means that the large majority of owners are not registered as such and are therefore not visible to councils, town planners, investors, banks, post offices, water companies, electricity providers, and other firms. March 18, 2005
Our Criminal Justice System By Mike Rappaport The circumstances involving John Evander Couey, the man who confessed to killing 9-year-old Jessica Lunsford, do not inspire confidence in our criminal justice system. Consider these facts from CNN and Fox: "Couey's criminal history, spanning more than three decades and 24 arrests, includes multiple arrests for burglary, carrying a concealed weapon, indecent exposure, disorderly conduct, larceny and drug charges." Couey pleaded guilty to 1991 felony charges of sex offense against a child, fondling a child under age 16 and lewd and lascivious conduct in Kissimmee; he was convicted of indecent exposure in 1987, according to records from the sheriff's office. "There also was an August 2004 outstanding warrant for Couey for violating probation because of alleged marijuana possession." "During a house burglary in 1978, Couey was accused of grabbing a girl in her bedroom, placing his hand over her mouth and kissing her, Dawsy said. Couey was sentenced to 10 years in prison but was paroled in 1980." "Couey has absconded more than once." Krauthammer on the International Left By Mike Rappaport Charles Krauthammer says: "The international left's concern for human rights turns out to be nothing more than a useful weapon for its anti-Americanism. Jeane Kirkpatrick pointed out this selective concern for the victims of U.S. allies (such as Chile) 25 years ago. After the Cold War, the hypocrisy continues. For which Arab people do European hearts burn? The Palestinians. Why? Because that permits the vilification of Israel -- an outpost of Western democracy and, even worse, a staunch U.S. ally. Championing suffering Iraqis, Syrians and Lebanese offers no such satisfaction. Hence, silence. Until now. Now that the real Arab street has risen to claim rights that the West takes for granted, the left takes note. It is forced to acknowledge that those brutish Americans led by their simpleton cowboy might have been right. It has no choice. It is shamed. A Lebanese, amid a sea of a million other Lebanese, raises a placard reading 'Thank you, George W. Bush,' and all that Euro-pretense, moral and intellectual, collapses." No Death Penalty, Perhaps, But It Should Be Painful By Maimon Schwarzschild Eugene Volokh, who had posted in favour of painful execution, responds thoughtfully and at length to several of us (i.e. including me) who disagreed. He wasn't kidding, though: [M]y tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment.Eugene also has further thoughts on painful executions and "slippery slopes", on Catholic responses to his original post, and -- especially thoughtfully -- on the death penalty debate more generally. Oddly, Eugene seems more uncertain about whether to support the death penalty at all -- although in the end he says he favours it -- than about whether sometimes to inflict death with deliberate physical agony. There may be something to it: no death penalty, but it should be painful. This idea may actually be pretty close to the Talmudic view of the death penalty. Things Irish (plus the great Blogger suck-a-thon) By Tom Smith So, is Blogger back up yet? Testing. Testing. What an unbelievable piece of crap is Blogger. I mean, really. Yesterday, I wrote what I thought might be the best post ever, about growing up Irish Catholic, nuns, my very Irish American, beautiful, alcoholic long dead aunt Mugga, the evil psychotic bitch Sister Ambrosia, my fifth grade teacher, visiting Ireland to make pilgrimage to the places of Yeats's poetry, and what does Blogger do? It eats the post. Poof. Gone. No backup. It may have been destiny or what ever the Celtic word for wyrd is, but even so. I just don't have it in me to do it again. Happy belated St. Pat's everyone. We are going to switch to typepad. March 17, 2005
Capitalism and Happiness By Chris Wonnell The Left has never liked capitalism, but that doesn't mean it has been consistent in its critique through the years. During the 1930s the Left attacked capitalism for not producing the jobs and the products that people desired. Now that it does seem to be producing what people desire, the New Left critique is that giving people what they desire will not ultimately make them happy. What are we to make of this criticism? Given a moderate interpretation, it is not an especially damning argument, and may very well have elements of truth. We may be wired to desire certain things that were good for our genetic ancestors in another era, like high fat foods, that now disserve our long run interests. But the critique is usually meant in some more comprehensive sense, that there simply is no relationship between what people desire and what will actually make them happy. We are constantly finding, after we get what we desire, that it didn't make us as happy as we thought it would. Let us play amateur sociobiologist again. Evolution has programmed us to stay alive and to reproduce, not to be either happy or unhappy as such. Indeed, it can't be good for an organism to walk around in either rapturous bliss or in stultifying dejection. We need to be calm, and to respond pragmatically to our environment, and this requires a moderate background state and the possibility of feeling significant gains or losses from that background based on the incremental actions we take. So it should not be surprising that our bodies give us jolts of short-term pleasure and pain to reward or punish us for our choices and then return us to that normal state fairly soon after that choice, whatever it was. If this description of human nature is plausible, what does it say about the critique of capitalism? First of all, the argument is not especially about capitalism at all. There is no reason to believe we would be happier if our desires were systematically frustrated. Rather, this biological tendency makes it difficult to make people enduringly happy with any social system, capitalist or otherwise. However, champions of capitalism would like a better answer than that. Is there no room for a utilitarian defense of capitalism against a nihilistic charge that any social system is destined to produce about the same level of happiness in the long run? I think there is a better answer. We should distinguish between immediate sensory experience and the retrospective intellectualization of that experience. I am from Chicago originally, and now live in San Diego. My observation is that people complain about the weather roughly the same amount in the two cities. That doesn't mean it wasn't genuinely painful to walk the streets of Chicago in the winter and feel like you were being stuck by needles. In intellectualizing the experience, however, Chicagoans simply took it stoically and could honestly state that the weather did not make them especially unhappy. There was the pain, but hey, it is winter time. Of course, when given the choice, a lot of Chicagoans moved to San Diego, and not that many have moved back. Progress may consist more of improvements in immediate sensory experience than in changes in reflective intellectualization of one's condition. Surely our nature wires us to detect when it is too cold for us out there, so that we will tend to the problem when we can. The feeling of pain is genuine, but it doesn't translate into existential suffering because that would not be good for us. I think that this is largely the kind of progress that capitalism has achieved. It has made our lives as they are pre-intellectually experienced much more pleasurable and less painful than they were before capitalism, not only in terms of mitigating bodily pain but also in terms of immediate experiences of cognitive or aesthetic pleasure. But when we are in the mood for assessing our condition reflectively we are not going to see ourselves as especially happy or unhappy. The normative claim is that it is better to live lives that are pleasurable rather than painful even if one will, at the end of the day, answer a question "how happy are you on a scale of 1 to 10?" the same in either state. Lynch Law By Maimon Schwarzschild Eugene Volokh is one of the loveliest people there is, and one of the smartest and wisest. It is almost reassuring that he too has aberrational moments, as have we all. Eugene posts in support of an Iranian execution of a serial killer and child rapist. The culprit first was publicly whipped -- 100 lashes, with the crowd baying "Harder! Harder!" -- then stabbed by a brother of one of the killer's victims (this may not have been planned by the authorities, although they certainly didn't prevent it), then publicly hanged from a crane so that he slowly strangled, the noose having been put round his neck by the mother of another victim. Further details here from the BBC. The culprit -- I assume, or at least I hope, that the man punished really was the culprit -- had kidnapped, sexually molested, and murdered at least twenty boys. Eugene says: I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.I think not. This man was "executed" by being publicly tortured to death, with relatives of the victims egged on by the authorities to participate. It was a lynching, and lynching is not the "rule of law": lynching is what the rule of law is meant to sublimate and replace. (Let's be clear. A lynching victim is not necessarily innocent as charged; and many people have no doubt been lynched on evidence as good as might be acceptable to a court in the Islamic Republic of Iran.) As the BBC notes in passing, "hanging by strangling" -- more about this method in a moment -- is common in Iran. In other words, executions in this fashion are common for "culprits" who are not serial killers. People are executed in this way for political offences, and certainly for acts that would scarcely be crimes in most countries. The psychology of the situation, though, is that all such executions are more "legitimate" if any of them is. This may not be logical, but I don't doubt that the Mullahs are shrewd in thinking along these lines. It is no accident that civilised countries don't torture people to death. One reason is that there's no way, really, of restricting the torture to people who "deserve" it. On the contrary, torture obviously encourages bloodlust, and Hobbesian behaviour generally. Is it coincidental that the Iranian authorities are channelling popular rage in South Tehran -- the poorer part of the capital -- towards this wretched man, at a time that their regime is threatened and democratic aspirations are mounting? (The Communists used to say "It's no accident" about things that were accidental, or that didn't even happen: it was one of Stalin's standard, paranoid, rhetorical tropes. But this really is no accident.) Anyhow, if you "execute" the serial killer of twenty children in this way, what do you do to criminals who are worse still? A substantial fraction of the population of Rwanda recently participated in genocide-by-machete. Many still alive in Russia (and the former USSR) officiated in the Gulag. What would Eugene wish the State of Israel to have done with Adolf Eichmann? And what would he have done with the tens of thousands, no, hundreds of thousands and more -- from camp guards on up (or down) -- who carried out the Nazi Final Solution? George Orwell wrote about this just after the Nazi defeat, in November, 1946: There is one question which at first sight looks both petty and disgusting but which I should like to see answered. It is this: In the innumerable hangings of war criminals which have taken place all over Europe during the past few years, which method has been followed—the old method of strangulation, or the modern, comparatively humane method which is supposed to break the victim’s neck at one snap?I hope Eugene's post was satirical, in dark Swiftian style. But if not, here's a vote for George Orwell, and against what Eugene rightly calls "cruel vengeance". Politically Incorrect Heaven By Mike Rappaport I get to quote Ann Coulter, citing John Lott, for the proposition that: It turns out that . . . female law enforcement officers vastly are more likely to shoot civilians than their male counterparts. According to Lott's analysis, each 1 percent increase in the number of white female officers in a police force increases the number of shootings of civilians by 2.7 percent. Happy St. Patrick's Day By Gail "My Ex-Mother-in-Law Was a Murphy" Heriot Calling them dirty, lazy and ignorant hasn’t always been regarded as rude or inappropriate. At one point it was considered a simple fact, amply demonstrated by the evidence. They were not like the rest of us; they were different. Anyone who thought otherwise could try wandering into one of their inner city neighborhoods unarmed. Even the police would venture in only in groups of six or more.... Racism? Perhaps. But the "race" I am referring to is the Irish-–a "racial group" that has become so mainstream today that... well... it is the mainstream. Everyone seems to have a mother (or in my case an ex-mother-in-law) whose maiden name was Murphy. To say that you’re an Irish American is to say that you’re an ordinary American, a member of the "majority." But it was not always thus. Nineteenth-century Ireland--from which the ancestors of present-day Irish Americans fled in boatloads--was a remarkably dismal place even before the Great Potato Famine. As Gustave de Beaumont, traveling companion to Alexis de Tocqueville, wrote in the 1830s: "I have seen the Indian in his forests and the Negro in his chains, and thought, as I contemplated their pitiable condition, that I saw the very extreme of human wretchedness; but I did not know then the condition of unfortunate Ireland." The evidence seems to bear him out. At 19 years, the Irish peasant's life expectancy was less than the American slave's 36 years (which was not a great deal less than that of other Americans). While the American slave lived in crude log cabins, the Irish peasant lived in even cruder mud huts. And while the American slave ate only small amounts of meat and the meat was of poor quality, the Irish peasant, like peasants across Europe, often had none at all. The world of the 19th century was still a grim place nearly everywhere, but the Irish peasant's world was extraordinarily grim. With the famine, things took an almost unimaginable turn for the worse. In a remarkably short period of time, the potato, Ireland's staple crop, essentially disappeared. One and a half million, half-starved souls were cast on American shores in the years between 1845 and 1855. And these were the lucky ones. One million out of Ireland's population of eight million died. When these immigrants got off the boat, they were largely illiterate, unskilled, unwashed and ill-equipped for urban life. What they knew how to do was grow potatoes, something there wasn't much of a call for in New York, Boston or any other American city. Not everyone sympathized with their plight. Friedrich Engels, who fancied himself a champion of the workingman, regarded the Irish immigrant to Great Britain as having a "crudity" that "places him little above the savage." For work requiring skill or patience, Engels complained, "the dissolute, unsteady, drunken Irishman is on too low a plane." Here in America, many agreed with Engels. Signs reading "No Irish Need Apply" started popping up soon after large numbers of Irish began arriving. Some employers no doubt thought they were being more polite by expressing a preference for "Protestant" applicants; other made sure they were understood by insisting on "any color or country except Irish." Almost nobody thought these Irish immigrants were just like the rest of us. I would like to be able to say that each and every one of them struggled heroically against all these obstacles, refusing to let his dignity or sense of responsibility flag even for a moment. But the world's not like that. That's why most of us should thank our Creator that circumstances have never put us to the test; real human beings, unlike the characters in melodrama, can be disappointing. Irish neighborhoods had more than their share of crime, prostitution, and other urban pathologies. Family abandonment was more common among the Irish than among other immigrant groups at the time. And in 1914, more than half a century after the first great wave of Irish immigration, about half the Irish families living on the West Side in New York were still (for that and other reasons) without fathers. It would also be nice to report that the notion of the hard drinking Irishman is just an untrue and vicious stereotype. But in fact, as a group, the Irish were justifiably known for their drinking. When the Irish began to pour into Boston between 1846 and 1849, the number of liquor dealers increased from 850 to 1200. Most catered to the newcomers. Even as late as World War II, more Irish Americans were rejected from the military for alcoholism than Blacks, Italian Americans or Jews. But why rehash the sins of the fathers? Why not tell the many positive stories about Irish immigrants to America? Well, perhaps it's not good to dwell on the negative side for too long, but I think in this case it says something great about America and its people: If these scruffy Irish immigrants (and I've been told that I'm a tiny bit Irish too, so I hope that gives me a bit of license)... if they can assimilate and have their grandchildren can become part of the American Establishment, anyone can. It may (and usually does) take generations for a group to become just another part of the majority. But everybody can do it. After a while, we're all as American as ... well ... the potato. What are the implications of all this for today's immigration policy? Maybe very little. The issues that confront us there are difficult and complex. Reasonable people disagree and will continue to do so. But St. Patrick's Day is not a day for resolving thorny issues of public policy. It's a day for raising a glass and toasting all things Irish or even partly Irish. Like baseball and apple pie ... and the Great American middle class. March 16, 2005
Still More on Bankruptcy By Gail Heriot Todd Zywicki ably defends the bankruptcy bill in the NRO here and here. Also see his recent inquiry on the Volokh Conspiracy here. A poem about a person By Tom Smith All this discussion about Peter Singer, and babies, and so on, and so forth, reminded me of this poem, popular in college classrooms (or used to be; I wonder if it is still), but still a very good, British, post-war poem. Death of a Son (who died in a mental hospital aged one) Something has ceased to come along with me. They were to have with silence. But he But rather, like a house in mourning And the breathing silence neither I have seen stones: I have seen brick And bricks for blood. A house This was something else, this was Something religious in his silence, And then slowly the eye stopped looking He turned over on his side with his one year More on Bankruptcy By Gail Heriot Uh oh! My analysis has been called "spectacularly stupid" by a nice man named Thomas Nephew. Gosh, I suppose I’ve been called worse ... even by my own grandmother once or twice. But allow me to respond: Nephew is evidently hot and bothered on two grounds: (1) First he is upset that my National Review Online essay begins with a discussion of an inaccurate newspaper headline: "Half of Bankruptcy Due to Medical Bills–US Study." At least so said theNephew doesn’t disagree that the headline is inaccurate. But he evidently thinks that I shouldn’t have brought up the error. He points out that the study’s title is not itself misleading in this regard. I have three responses to that. First it would be worthwhile in itself to point out that the media got it wrong, even if the authors of the study had not been at fault. That’s the version the public and most public policymakers read and react to. I might add here that it wasn’t just Reuters that got it wrong. The Boston Globe, the Cleveland Plain Dealer, the Associated Press, the Chicago Tribune, MSNBC, CNN and lots of others ran headlines claiming that the half of all bankruptcies were found to be caused by medical bills. All were false. Second, in the media’s defense, those headlines were not manufactured from whole cloth. A press release (available on Lexis/Nexis) that accompanied the study, issued over U.S. Newswire by Physicians for a National Health Program, an organization co-founded by two of the authors, also carried an erroneous headline, "Harvard Study: Half of U.S. Bankruptcies Caused by Medical Bills." (According to its web site, PNHP is an organization that advocates a single-payer system as "the only solution to solving the United States’ many health care problems."). Similarly, the announcement of the study by the Harvard Law School (where one of the co-authors is a tenured faculty member) opened with a statement that the study had found that "[n]early half of all Americans who file for bankruptcy do so because of medical expenses." In addition, study’s authors made numerous public statements in connection with the study's release that would understandably cause people to think that it was about crushing medical debt. E.g.: *Co-author Elizabeth Warren said in the Harvard Law School announcement of the study that "[a] broken health care finance system is bankrupting middle class America." *Lead author David Himmelstein said, "Our study is frightening .... Too often, private health insurance is an umbrella that just melts in the rain." *Co-author Steffie Woolhandler echoed Himmelstein’s statement with her own similar comment, "Our study is fairly shocking .... We found that, too often, private health insurance is an umbrella that melts in the rain." No wonder Reuters and others thought they were dealing with a study about medical bills. Third, the difference between "half of all bankruptcies are caused by medical bills" and "half of all bankruptcies are somehow medically related" is a huge one. As I alluded to before, at least three of the authors to the study are critics of the nation’s current health care finance policy and have used the study as an opportunity to offer their opinions on the subject. "Covering the uninsured isn’t enough. We must also upgrade and guarantee continuous coverage for those who have insurance," Dr. Woolhandler said in a statement. She went on to condemn employers and politicians who advocate what she called "stripped down plans, so riddled with co-payments, deductibles and exclusions that serious illness leads straight to bankruptcy." The problem is that if it’s not true that "half of all bankruptcies" involve medical debt, the most comprehensive of all health care coverage won’t solve the problem. Indeed, as I said in the National Review Online essay, it may even be counterproductive. Mandatory comprehensive health care coverage will mean more expensive health care coverage. That’s just cold, hard reality. Some employers or employees may try to make up the difference by cutting corners on disability insurance. Other employers may hire fewer employees. If it turns out that it is lack of adequate disability insurance that is really driving these bankruptcies, then debtors who fall ill or who are injured or unemployed will be worse off, not better off, as a result of having comprehensive health care coverage. I think I understand what’s confusing my friend Nephew. He seems to think that it shouldn’t matter whether the study is about bankruptcies caused by crushing medical debt or bankruptcies caused by a medical catastrophe that prevents the debtor from earning a living. In either event, it seems unfortunate. He is too focused on the bankruptcy bill. When this study was announced in February (and when my National Review Online piece was written and published), the study was being touted as proof of the need for health care finance reform. That’s what those portions of the essay are focused on, and not so much on the recent bankruptcy bill. (2) Now let’s get to the part of the article that arguably has a greater bearing on the bankruptcy bill. In the National Review Online, I argued that in order to get to the point where the authors could state that half of all bankruptcies have a "medical cause," they had to include a number of dubious case categories, including bankruptcies in which the debtor cited chronic gambling, alcohol and drug addiction, and birth or adoption as a substantial cause, as well as all cases in which the debtor had paid more $1000 over the two-year period leading up to the bankruptcy. The last category is especially misleading. The debtors in it did not have to claim that medical bills were a special problem for them. It was sufficient that they spent $1000–hardly an unusual sum for a family over two years. Most families probably spent that much on groceries too. Yet you wouldn't say their bankruptcies were caused by groceries. Nephew is apparently concerned that I failed to state that not all of the categories included by the authors as bankruptcies with "a medical cause" were misleading. It’s a strange criticism in view of the fact that I specifically state, "Don’t get me wrong. Some bankruptcies are caused by crushing medical debt. But they aren’t half of all bankruptcies ...." If I’m willing to concede that some bankruptcies are caused by medical bills, then it’s pretty obvious I’m willing to concede that some bankruptcies are medically related. Indeed, my essay specifically states that debtors in 28.3% of all bankruptcies identify "illness and injury" as a substantial cause (although not necessarily the primary cause) of their bankruptcy. Nephew, however, thinks that I should have also pointed out that in 21.3% of bankruptcies, the debtor or the debtor’s spouse had lost at least two weeks of work-related income because of illness or injury." Gosh, I thought I was being nice by using the larger 28.3% figure. In writing the National Review Online piece, I was willing to assume for the sake of brevity that the 28.3% was a fair one. In fact, I believe that even that figure is probably substantially overstated. But if Nephew would prefer that I use the lesser figure of 21.3%, then fine. The point is that it is misleading to claim that 54.5% of all bankruptcies have a "medical cause." It simply isn’t so. Maybe Nephew is under the impression that these two figures can be added together to arrive at 49.6% of all bankruptcies. I can assure him that isn’t so. These figures overlap substantially. If that weren’t so, the authors would be claiming that 97.6% of all bankruptcies have a "medical cause," since that’s what the figures would add up to. Okay, I’ve gone on too long. I’m going to take my "spectacularly stupid" ... uh ... analysis and get some sushi. Kasparov By Tom Smith I got this email from a student of mine and chess enthusiast: I noticed you linked to a story about Garry Kasparov on your blog. He made his announcement after the super grandmaster Linares tournament which I had been following from game 1. He played incredible for the entire 2 week tournament and the entire chess world went from ecstatic at seeing the old Kasparov to flabergasted at hearing his announcement. Though I'm deeply saddened that the best chess player that has ever lived has retired in his prime, I think the sacrifice he is making (no pun intended) is downright heroic. He has definitely opened my eyes to the brewing problems in Russia. The reason I bring this up is that I wasn't sure if you've had a chance to review any of his games from Linares. At the following link you can find his tournament winning victory over the #1 player from England, Michael Adams. Kasparov's win is spectacular. I don't think you can fully appreciate the drama of his announcement until you see the incredible level of chess he was playing just prior. Even though I know he doesn't see things this way, I have a sense that Kasparov has martyred his career for a cause that is deeply American. I feel an incredible sense of solidarity with him. Anyway, enough of my blathering on, enjoy the game! March 15, 2005
Filibustering Judicial Nominees: One More Time By Mike Rappaport Larry Solum has responded to my post, responding to his post, which had responded to my earlier post. The blogosphere certainly reduces transactions costs. While I would normally let the exchange stand, I believe that Larry has misunderstood several of my points. Larry’s main argument is that the Senate has a constitutional obligation to either consent or reject to the President’s nominees in a timely manner – which he reads to mean during the existing Senate session. To help establish this point, he relies on an argument made by George Washington that the Senate functions, when it advises and consents, as an executive council and therefore “the Senate could be called by the President to give advice and consent on his timetable.” Thus, the President could schedule Senate sessions and presumably forbid filibusters. My response to Larry rejected the Washington view and his main textual argument. Let me discuss these matters in turn. My previous post argued that Washington’s view, that he could schedule and control the timing of the Senate’s response, was not accepted by the Senate and in any event was not the best reading of the Constitution. Despite Larry’s arguments, I stand by my previous claims. As I stated, the Senate asserted the authority to schedule its own responses to the President’s nominations and therefore rejected the claim that the President could control their proceedings. Larry tries to minimize the effect of this by saying that “although Washington’s specific proposal was not adopted, his understanding of the fundamentally executive nature of the Senate’s role . . . provides an important insight into the meaning” of the Appointments Clause. But this concession gives away the game as to the claim that the President can control the Senate, which is what I suggested in my earlier post. Moreover, the Senate was correct to insist on its own scheduling, since the Rules of Proceedings Clause specifically allows each house to control its own procedures. While Larry responds that the Rules of Proceedings Clause does not negate the possibility that the Senate has a constitutional obligation to respond in a time manner, that is not relevant to my point, which was arguing against Washington’s view that the President could schedule the Senate. Finally, I should be clear that I am not necessarily arguing against viewing the Senate as performing an executive function. The point is that the Senate, when performing that function, controls its own schedule. Now consider my response to Larry’s main textual claim. First, I argued that his claim that the Senate must respond to a nomination within the existing session could not be found in the text. And, once again, I stand by my point. The Constitution simply does not impose a time limit. While Larry wants to find an obligation in the Recess Appointments Clause, it merely says that the President can only make recess appointments if the vacancy arises during the recess. This makes it convenient for the Senate to respond by the end of the session, but there is no specific requirement. Indeed, Larry recognizes as much when he says if the vacancy arises late in the session, the Senate does not have to respond by the end of the session. Second, Larry might also be interpreted as arguing simply that the Senate must respond to a nomination “in a timely manner,” understood as within a reasonable amount of time. But even this claim would be questionable. The language says that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint” officers. While this language might obligate the Senate to respond, it seems more likely simply to say that an appointment cannot be made without the advice and consent of the Senate. Moreover, even if the Senate does have an obligation to respond, it is not clear that a filibuster is an inadequate response. Under the existing rules, a minority of the Senate made clear in the last Congress that it would not allow a vote for these nominations. The President could then respond, either by continuing his nominee or by nominating someone new who was more to the liking of the entire Senate. Larry’s suggestion that the President is somehow forced to accept a vacancy is mistaken. Finally, let me end by adding one new point. Larry’s letter focuses on original meaning and textual sources, yet Larry is a strong proponent of the force of precedent and practice. And Larry’s position would appear to be inconsistent with much practice. For example, Larry’s view, that the Senate must respond, would seem to suggest that it is unconstitutional for committees to prevent both executive and judicial nominees from coming to the floor. Yet, this practice has been going on for a long time. In closing, let me say that, once again, it has been a pleasure to debate an issue with Larry. Even when we disagree, it is both fun and enlightening. Update:Upon rereading my post, I think that I should have said more about one point. I wrote: “The language says that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint’ officers. While this language might obligate the Senate to respond, it seems more likely simply to say that an appointment cannot be made without the advice and consent of the Senate.’ In fact, the point is stronger than this. I am no longer at all sure that the language can even bear the interpretation Larry gives to it. First, the language explicitly focuses on the President. It thus has the same structure (although it is worded differently) as the following: A mother tells her child, “Go over to the neighbor’s house, and if he says it is ok, retrieve our ball from his backyard.” Clearly, this imposes an obligation on the child, not on the neighbor. Second, and this is the important point, while Larry wants to read in the word shall to apply to the Senate, that will not work. If the shall applies to the Senate, the phrase no longer makes sense. If the shall applied to the Senate, the language would then say something like the following: “The President shall nominate, the Senate shall advise and consent, and the President shall appoint.” But the Framers would not have written this, because it would require the Senate to consent to the nomination. Instead, the Framers would have wanted to say: “The President shall nominate, and the Senate shall advise and either consent or reject the nominee; if the Senate consents, the President shall appoint the official.” But, of course, the Constitution does not use this language. (Compare, though, the Presentment Clause). Finally, one might ask why the Framers would not have obliged the Senate to either consent or reject if they obliged the President to nominate and appoint. It is hard to know, but one distinct possibility is that they understood that a failure of the Senate to act functioned like a rejection. So there was no need to require a specific yes or no. "The Threat of Federalism": Would De-Centralization Dampen the Power of National Special Interest Groups (especially the wackiest ones)? By Gail Heriot The National Organization for Women's Legal Defense and Education Fund has a website with the sub-caption "The Threat of Federalism." It begins this way:
The essay goes on to argue in earnest tones that the Federal Government should be regarded as a "progressive agent for change," that those of us born in the modern era "have lived with the assumption that the federal government has the authority to tackle national problems," but that the Supreme Court has in recent years threatened the nation's well-being with a strange doctrine that they call federalism, which holds that the federal government does not always have that authority. In other words, this federalism stuff is bad, bad, bad. So long as a faction is strictly a minority, it is harmless enough, since in a democracy, it won't get its way. The problem comes when the faction is itself a majority or when it forms coalitions with other factions that together are able to secure inappropriate advantages. Madison thought that this is easier to do at the local or state level than at the national level. At the national level, the number of petty factions will be so large that they will tend to cancel each other out. He wrote:
Well, yes ... In the 20th century, for example, it was said that tobacco growers had a lot more clout in North Carolina than was healthy, because they were well-organized and concentrated there. Ditto for the auto industry and the auto workers unions in Michigan. But at the national level, these interests were a few voices among many. As the country has become more geographically homogeneous and the economies of the various states more diversified, Madison's point became somewhat less crucial. But it continues to have validity. NOW purports to represent women. But when NOW President Kim Gandy says things like, "There is no question ... that a Bush presidency would be a disaster for women," and publishes a web site accusing "Bush and his accomplices" of "lies" and "misdeeds," it's hard to say she's representing women. Lots of women--a majority of married women--voted for Bush. Similarly, the AARP represents retirees. But that group is also not as one-dimensional as AARP policies make it appear to be. Ditto for lots of large membership organizations that lobby the federal government. Is it possible these groups are the way they are in part because of the centralization of power in the hands of the federal government? I think so. And at least it's interesting to give it some thought... March 14, 2005
California Superior Court Holds Same-Sex Marriage Ban Unconstitutional By Gail Heriot The New York Times reports. For my earlier series on same-sex marriage, entitled "Marriage, Schmarriage," click 1. here, 2. here, 3. here, 4. here, 5. here, 6. here, and 7. here. Hmmm ... Looking back on that long list of heres, I wonder if I have become a tad too fond of blogging. Kennedy Snubs Adams By Maimon Schwarzschild Credit where it is due to Senator Edward Kennedy: Leading Irish-American politician Ted Kennedy says he will not meet Gerry Adams during the Sinn Fein leader's St Patrick's Day trip to the US.For the BBC to open the story by describing Kennedy as "[l]eading Irish-American politician Ted Kennedy" does have an odd, through-the-wrong-end-of-a-British-telescope flavour to it, of course. Kennedy's newfound discomfort with Gerry Adams is surely evidence of how much damage the IRA murder of Robert McCartney has done to the IRA and to Sinn Fein, the IRA's political front organisation: firstly in Northern Ireland and in the Republic, and now more generally in the US. Chess stud fights back By Tom Smith Kasparov is retiring to send a message of opposition to Putin. It's a huge loss to chess. But you have to admire his courage. More on Peter Singer By Tom Smith This is interesting. Lest there be any doubt, I'm with the lady in the power wheelchair. Would it ever occur to you that it might be fun to zip around in a power wheelchair? Me neither. We don't know what it's like to live other people's lives, not anywhere near well enough to decide to kill them. One of the many problems I have with utilitarianism, outside of limited contexts where it does make sense, such as financial market regulation, is that we simply have no idea what is going on inside of the heads of others, well enough to make decisions for them, anyway. Clive James By Maimon Schwarzschild The writer Clive James has a new website, with links to some of his articles and poems. About his website, he says "it is not meant entirely as an ego trip, although I suppose the Pharaohs said the same when they were approving the designs for their individual pyramids." James -- an Australian living in England -- writes with flamboyant style, but is also genuinely smart and thoughtful. A piece about anti-semitism, for example, opens in tones that could only be Clive James': For the Israelis, anti-Semitism is merely a nightmare. For the Palestinians, it's a catastrophe. If you believe, as I do, that the Palestinians' cause is just, nothing could be more depressing than to hear them spout the very stuff that guarantees they will never get an even break. The mad idea that the Jews have no right to exist is a potent intensifier of the almost equally mad idea that the State of Israel can somehow be eliminated. I say "almost" because a friend of mine in Australia recently presented me with a plausible case that the Middle East would probably be a more peaceful area if the State of Israel had never been founded. Like her argument that the Aborigines would have been a lot happier if the Europeans had never shown up, this contention was hard to rebut, except by rudely pointing out that we were both sitting in an Italian restaurant in Melbourne, history having happened.The rest of the piece is characteristially sharp, yet sane. It's true that often Clive James seems to want his every sentence to score with bells ringing and whistles whistling. Then again, a lot of the sentences really are very good. And often -- not always -- his actual ideas are seriously worth thinking about. James isn't easy to pigeon-hole politically, but on the whole I suppose he is left-of-centre. He is fun to read though, whatever your politics, and not just for his style. He is very well known in Britain (and in Australia), but less so in the US. If you haven't discovered him, give him a try -- and welcome him to the blogosphere. March 13, 2005
Of race and horticulture By Tom Smith This post at the Corner reminded me of an incident shortly after we bought a house in San Diego, some years ago. Out here in the sticks lots are large, and we have maybe a hundred trees, large and small, on the property. I have had something of a phobia about lawn care ever since my fledging lawn mowing business cratered after I mowed over a sapling in a customers yard and tried to cover it up by shoving it back into the soil. I hired therefore the gardening service many of my neighbors used, and told them, inter alia, I wanted them to trim the trees. They did so, and made an utter mess of the job. Limbs were hacked off with no apparent reason, with six inch stubs left on the trunks. Even I knew that was bad stuff. So I fired them and hired a gardener from my university, which is famous for its beautiful grounds, among other things, and showed him the trees. Looking at the trees, he sighed in disgust and said, "What race were they?" I wasn't sure I understood him, with his heavy Mexican accent. "What?" I said. "What race were they?" That's what I thought he had said. I temporized. "What race, do you say?" "Were they Mexican or Japanese?" he said. What could I say? "Mexican," I said. He sighed again, as if the incompetent tree trimmers had let the whole race down. He, however, proved to be an excellent gardener. Judges still need more protection By Tom Smith Judges probably are on average braver than the typical person and have thicker skins. But they should still get more protection than they do, whether they like it or not. Gary Becker on Supreme Court Term Limits By Mike Rappaport To ask this question is to answer it: Do we really want 80 year olds, who have been removed from active involvement in other work or activities for decades, and who receive enormous deference, in large measure because of their great power, to be greatly influencing some of the most crucial social, economic, and political issues? March 12, 2005
Solum on the Filibustering of Judicial Nominees By Mike Rappaport In response to the op ed that John McGinnis and I wrote, arguing that it is constitutional for the Senate to filibuster judicial nominees, Larry Solum posts a letter that he wrote to the Senate disagreeing with our position. He argues that the Senate has an obligation to advice and consent to judicial nominations and therefore filibusters of nominations that prevent a vote during a session are unconstitutional. As usual, Larry makes a strong argument, but I disagree. While we have debated this question in the past, in a different form, let me post a brief reply. First, the text of the Constitution does not expressly say that the Senate has an obligation to advice and consent. It only says “the President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” Second, Larry relies on a statement made by George Washington, suggesting that the Senate functions as an executive council when it advises and consents and that the President could determine where and when they meet. (Washington did not say the President could govern the Senate’s procedures, but perhaps one might infer that claim.) While Washington’s views are always interesting, that the Senate did not follow his position might be thought to be even more significant. Third, the claim that the Senate must follow the procedures established by the President seems inconsistent with the constitutional text. The Constitution provides that each house shall determine the rules of its proceedings. Thus, it is the Senate, not the President which determines when it votes and whether a filibuster is allowed. Larry argues that the advice and consent function is part of the executive function, but even if that is true, that does not mean that the Senate does not decide on its own procedures when performing that function. The Rules of Proceedings Clause applies to all proceedings of the Senate, not merely legislative ones. Finally, Larry argues that there is an obligation, as informed by the Recess Appointments Clause, that the Senate respond to a nomination within a particular session. I don’t really see how this obligation is imposed by the constitutional text. Moreover, while it might be convenient for the Senate to respond so the President can know what further actions he should take, a filibuster can also communicate to the President that the Senate minority will not consent to the nomination. President Bush can then decide whether to nominate someone else or to continue with his nominee. Similarly, if the Senate were to turn down the President’s nominee, he could decide to nominate that person again or to nominate someone knew. Update: See my additional response to Larry above. Bankrupt Political Discourse By Gail Heriot I still don't really have an opinion on the bankruptcy bill. I haven't read it (or a decent summary) yet. But I nevertheless breathed a sigh of relief when it passed in the Senate this past week. I couldn't stand the idea that the bill might be scuttled on the basis of a misleading piece of propaganda. I am referring to "Illness and Injury as Contributors to Bankrupcy"--a supposedly academic study that was the subject of an extraordinary media blitz back in early February. Headlines like "Medical Bills Cause About Half of Bankruptcies" were on the front page of newspapers all over the country that week. Not only were these headlines false, the whole study was deeply flawed and constructed to greatly exaggerate the importance of medical problems as a cause of bankruptcy. Loyal Right Coast readers may recall that I did a critique of the study back when it came out, which I expanded on in a National Review Online essay. But if I had had illusions that anyone actually reads and reacts what I write, they would have been dashed by the experience. A month later, newspapers, this time editorializing against the bankruptcy bill, continued to cite the study as proof that either half of all bankruptcies are caused by medical bills (a false claim) or that half of all bankruptcies were caused by illness or injury (also a false claim). The study remained a centerpiece of the rhetorical case against the bankruptcy bill. At least the Washington Post carried my letter to editor today. It read in part: Alas, I had hoped that having a blog would avoid the need to write letters to the editor .... The Honorable Robert K. Puglia By Gail Heriot Robert Puglia, former Presiding Judge of the California Third District Court of Appeal and one of the California bench's leading lights, died yesterday at the age of 75. It was easy to admire Puglia for his charm, wit and intellect. But what I found most lovable about him was his occasional unwillingness to suffer fools gladly. In one opinion involving the proper interpretation of a statute, he wrote that the trial court had "suffered a momentary bout of dyslexia." He will be missed. March 11, 2005
9th Circuit on 3 strikes By Tom Smith Here's an interesting 9th Cir. decision on California's 3 strikes law. Call me a bleeding heart, but there's no way I would vote to send a 3 time shoplifter to prison for 25 years to life, without very, very clear guidance to that effect from the Supreme Court. Given that the Court doesn't seem to feel bound by its own decisions, why should one ever read between the lines to get to an obviously unjust conclusion? I'm all for 3 strikes as a way to get the population of dangerous criminals off the streets, but it shouldn't be used against petty shoplifters. I will also note that Judge Noonan voted to reverse the sentence. Amending the Filibuster Rule: The Constitutional Option By Mike Rappaport My op ed piece, written with John McGinnis, on the filibustering of judicial nominees has now been published. The article makes three basic points. First, it argues that the so called nuclear option is a fully constitutional mechanism for changing the filibuster rule. In fact, it is constitutionally required that a majority of the Senate be able to change the filibuster rule; otherwise, a majority of the Senate could pass norms that would be as entrenched against change as constitutional provisions are. The Senate majority's power to modify the filibuster is strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view – advocated most recently by Senate majority leader Bill Frist, R-Tenn. – is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.The article’s second basic point is that the so called “nuclear option” is neither unprecedented nor likely to interfere with the Senate’s efficient functioning in the future: Both Republicans and Democrats forget, however, that the existing filibuster rule itself was a product of a process very much like the so called "nuclear option." The existing filibuster rule was enacted at the beginning of the congressional session in 1975. At that time, Sen. Walter Mondale, D-Minn., and James Pearson, R-Kan., proposed to change the old filibuster rule to permit 60 senators, rather than two-thirds of those voting, to end debate.Finally, there is an argument for employing an express supermajority rule for the confirmation of Supreme Court Justices. While the present filibuster is defective since it is applied unevenly and is only accepted by one party, it might be desirable for the Senate through a consensus to require the support of a supermajority for the confirmation of all Justices. To make it fair, this rule might be applied beginning with the nominees of the next President, who might be a Republican or a Democrat: If modern judges feel free to amend the Constitution in the guise of interpreting it, there is a strong argument that an express supermajority confirmation rule might be beneficial. After all, through its express amendment process the Constitution requires a stringent supermajority rule before politicians can establish new norms that will bind future generations. If judging has become just politics by other means, it does seem strange to permit justices confirmed by a mere majority to start imposing their values on the rest of us. Sit down and be counted By Tom Smith I just signed this on line petiton, inspired by Insta . . ., insta, what's it called?, regarding the upcoming FEC rulemaking on blogs and campaign finance regulation. Princeton Professor not eligible for babysitting job By Tom Smith I am thinking I would not let Peter Singer babysit my kids. In this charming discussion, he allows as how killing a newborn baby is not killing a person. What I want to know is, is killing a Princeton philosophy professor who thinks it's OK to kill a new born baby, killing a person? And even if it is killing a person, technically, might it still be justified on utilitarian grounds? By killing Peter Singer we probably reduce on the margin the possibility that someday we will live in a world where you can kill new born babies but not eat fried chicken. That's a lot of utility right there. I would be willing to kill him in a humane way, or at least a not terribly tortuous way. I was thinking maybe dropping 100 tons of bullshit on him. There would be a certain poetic justice in that. Ready for a really deep philosophical idea? Prepare yourself. Sit down. This is the sort of thing that gets you a chair in ethics at Princeton. To be a person, you have to have a sense of yourself existing over time, and be able to think about what you want in the future. New born babies don't have that according to Singer. No doubt he read a psychology article once to that effect. Sometimes philosophers, unable to be stupid enough by themselves, have to borrow stupidities from other disciplines in order to achieve the maximum effect. Does any sensible person think that new born babies have no idea of the future or of time, and in any event, how on earth are we supposed to know what the time sense of a new born is, at least with the certainty that is presumably required to justify killing it? Golly, another philosophical question. You may recall the name Peter Singer from a while back when he published an article on the internet allowing that it was OK to have sex with animals. Not only do a lot of people do it, according to Professor Singer, but there's no reason they shouldn't. His English Sheepdog Rosie was unvailable for comment. (She was getting her hair done.) I read the article, but I'm not going to link to it. If you want, just google "Peter Singer sex animals dogs ducks camels morality" and it will probably pop up. In any event, he does actually seem to think it is just fine to take your relationship with your emu to a whole new level, as long as it does not harm the animal. Whether it does you know presumably in much the same way you figure out little gurgling Amanda's sense of time. You really have to wonder about Professor Singer's sincerity. If he had a daughter, would he really want her to go out with a man, even a Princeton man, who had had relations with a duck? Let us say, so the animal would not be harmed, a big duck, a swan even, sort of Leda and the Swan in reverse. I like to think not. I quite understand that Professor Singer is an extremely distinguished academic. As we academics would say, "he is very smart; he has written on these issues. He is a very smart guy." And it may be true. But he thinks it is OK to have sex with ducks. All this leads me to conclude that Professor Singer will not be invited to babysit or even dogsit at my house any time soon. As my mass-challenged male labrador is always hungry, he might conclude morality required that he feed him my baby, which would not do. And I would not trust him with my female yellow lab, who does not smell, and seems to have a somewhat concupiscent temperament. It would be interesting to know what the attitude of the folks at Princeton would be to this question. They are reputed to be very open minded. BIT OF A BROOHAHA over at VC as to whether I misrepresented Peter Singer or not. Here's a long quotation from the FAQ at his website: Q. You have been quoted as saying: "Killing a defective infant is not morally equivalent to killing a person. Sometimes it is not wrong at all." Is that quote accurate? A. It is accurate, but can be misleading if read without an understanding of what I mean by the term “person” (which is discussed in Practical Ethics, from which that quotation is taken). I use the term "person" to refer to a being who is capable of anticipating the future, of having wants and desires for the future. As I have said in answer to the previous question, I think that it is generally a greater wrong to kill such a being than it is to kill a being that has no sense of existing over time. Newborn human babies have no sense of their own existence over time. So killing a newborn baby is never equivalent to killing a person, that is, a being who wants to go on living. That doesn’t mean that it is not almost always a terrible thing to do. It is, but that is because most infants are loved and cherished by their parents, and to kill an infant is usually to do a great wrong to its parents. Sometimes, perhaps because the baby has a serious disability, parents think it better that their newborn infant should die. Many doctors will accept their wishes, to the extent of not giving the baby life-supporting medical treatment. That will often ensure that the baby dies. My view is different from this, only to the extent that if a decision is taken, by the parents and doctors, that it is better that a baby should die, I believe it should be possible to carry out that decision, not only by withholding or withdrawing life-support – which can lead to the baby dying slowly from dehydration or from an infection - but also by taking active steps to end the baby’s life swiftly and humanely. Q. What about a normal baby? Doesn’t your theory of personhood imply that parents can kill a healthy, normal baby that they do not want, because it has no sense of the future? A. Most parents, fortunately, love their children and would be horrified by the idea of killing it. And that’s a good thing, of course. We want to encourage parents to care for their children, and help them to do so. Moreover, although a normal newborn baby has no sense of the future, and therefore is not a person, that does not mean that it is all right to kill such a baby. It only means that the wrong done to the infant is not as great as the wrong that would be done to a person who was killed. But in our society there are many couples who would be very happy to love and care for that child. Hence even if the parents do not want their own child, it would be wrong to kill it. Alrighty then. This view, though dazzlingly brilliant, does seem to leave that unfortunate non-person, the unwanted baby, in rather a tough spot. Indeed, what if you are that even more unfortunate not-a-person, the baby whose parents would like to kill you, because you cry a lot and poop in your pants? Does the state, or the kingdom of ends, or moral decency or anybody have the warrant to command, Don't kill that baby! He's a person! Apparently not. Also, the idea that newborns do not want to stay alive deserves ridicule on its face. Not just newborns but prematurely born babies routinely behave in ways that causes neonatal nurses to say, for example, "he may make it; he's a fighter." Not only do they want to live, they fight like hell to live. To blithely say, oh, you see, they don't have any sense of the future you see, so they cannot want to stay alive, so you are not depriving them of anything they want . . . " is spurious, offensive nonsense, based apparently on a complete ignorance of the realities of earliest human life. It would be interesting to know if Singer has any children, or has had any experience in a neo-natal care unit. Those little pink frogs are persons, all right, and that's part of what makes them so morally compelling. Killing them is killing people, and its moral depravity is not limited to the grief it would cause their parents. I mean, really. Just as a philosophical opinion, I would like to assert that the idea that to be a person, you have to have some sense of the future, is rubbish. I particularly value those moments when my sense of the future slips away, when watching a beautiful sunset, or finishing a second bottle of wine, and I certainly don't expect anyone to think that they can kill me without killing a person. It may well be that animals deserve more respect than we give them. I am something of an animal lover, even though I eat them. I was even a vegetarian for about 10 days once, but gave it up out of weakness of will. You can be an ethical vegetarian without adopting views that in addition to being false, help undermine the ethical status of the most vulnerable human persons. March 10, 2005
How to think like a leftist By Tom Smith You can't make this stuff up. Still, as with any complicated story, it's useful to review things that might otherwise fade into the background. So I need to have my memory refreshed about how and why the fall of the Soviet Union was a bad thing, and how that fits into the overall capitalist conspiracy. And while I see that Ukraine wanting to toss out Russian puppets is somehow just an exercise in "re-branding," I'm having trouble recreating the story. While we're at it, maybe just bring us up to speed on why the North Koreans and the Red (sorry) Chinese are much to be admired, or victims, or whatever. Otherwise, it so easy to get confused. While it may too early for hawks, neo-cons and W lovers to gloat over Springtime in Arabia, it is not too early for America haters, especially of the left-wing variety, to start getting their story straight. The Nation provides some pretty good instruction. First, deny there has been any victory. The election in Iraq was a sham, just part of an elaborate plan to get our greedy hands on oil in the future independent Kurdistan. Say this, and it gives the impression you have some kind of inside line on the future of the region. You must be really smart and well-informed. If things don't work out that way, well, we can worry about that later. Second, there is still plenty of room for hope that Lebanon will descend into a bloody civil war, which is much too be hoped for, as it is something we can blame on Bush and Brand Amerika. If it doesn't, well, that will be because, the oppressed Shia'a or whatever they are are underrepresented. Keep that in mind-- it's either civil war or a grossly unrepresentative government, both are bad, and both would be Bush's fault. Third, just ignore Ukraine and maybe it will go away. Fourth, Iran has a very indigenous culture or something, and we're plotting to blow up their peaceful nuclear weapons program, and who can blame them for being paranoid, and words to that effect. Fifth, however good things seem, it is always possible to claim it is all financed on borrowed trouble, and catastrophe is just around the corner. Just think of all those brave revolutionaries over history who have held on, in spite of how good things seemed, in the courageous hope they would soon get worse. Bankruptcy reform By Tom Smith Interesting, fairly balanced post on the bankruptcy reform law. Also, click through and read Todd Z's posts, which are quite convincing. March 09, 2005
The French, the English, and the Indians By Maimon Schwarzschild The sad story of Ward Churchill, the faux Indian -- although he is a real enough example of much that is awry in American education -- has motivated me to re-read Francis Parkman's classic history of France and England in North America. Parkman's story of the contest between France and Britain in the New World is beautifully, irresistably written. It reads like a novel, or rather far better than most novels. Parkman is unsentimental, of course, about the seventeenth- and eighteenth century American Indians. They are more savage than noble in his portrayal. Their inveterate warfare was as much against each other as against the the European settlers, and featured a distinctive and rather terrifying taste for torture. Parkman gives an unforgettable picture of the French soldiers, settlers, missionaries, and traders who explored the forests and plains of Canada and much of what is now the central United States. But the French were eventually defeated by the British-Americans. Parkman blames the French defeat largely on the Bourbon political culture of despotism. Centralised control by the royal Court at Versailles meant endless intrigue, conspiracy, and above all the stifling of initiative by the French settlers themselves in North America. Parkman wrote in the years after the US Civil War. He was nearly blind, and in chronic bad health, but he visited the scenes he wrote about, as well as the archives in France and in Canada. His books (happily, there are many volumes) are wonderfully readable today. In fairness to academia, it should be said that Parkman was a Harvard professor. Then again, he was professor of horticulture, not of history. (For today's orthodoxy about the likes of Francis Parkman, see the entry in the officially sanctioned Dictionary of National Biography of Canada -- this from a Canadian Government website, by the way: Parkman's appeal is "sinister"; "his appeal is to innate chauvinism"; "[t]here is no question but that Parkman's version was thoroughly bad history". What's more Parkman was "rich"; and "a staunch member of the Great Man school of history". And so sneeringly on.) Dan Rather's Fall from Grace By Gail Heriot Like a lot of people, I have tendency to feel bad for powerful figures when they are publicly humiliated--even when that humiliation is richly deserved. For example, although I had never had much sympathy for Nixon prior to his resignation, my heart went out to him as he climbed onto that helicopter leaving the White House. It was just so final ... and so pathetic an end. Similarly, while some of my conservative and libertarian friends clamored for Bill Clinton's scalp, I couldn't help feeling sorry for him. When I woke up this morning, I wondered whether I would feel bad for Dan Rather when he signed off tonight. Well ... the answer is no. Maybe it's because he's been allowed pretend that he is simply entering some sort of semi-retirement or the fact his mug will still be beamed into our homes via Sixty Minutes. Or maybe it's because I'm getting hardhearted in my old age. I'm honestly neither proud nor embarrassed by my lack of sympathy. It's just a fact that the answer is no. Family life update By Tom Smith I think it is an important part of being a father of boys not to get hysterical when you discover they have built a man-trap on your property. The pit in question is about four feet deep and the same across, and because of our wet weather recently largely filled with muddy rainwater. Across the top the children have placed brush, presumably to obscure the pit. I am looking on the bright side: they seem not to have planted sharpened stakes at the bottom. In truth, the hole was not very well hidden, so there was not much danger anyone walking around in daylight would fall into it. Night would be another story, but no one has any business out there at night. Of course, you lawyers know this would not be a defense. The smaller one foot wide, two feet deep holes that surrounded the larger pit, however, were well hidden. I said to Patrick, their designer, "These things are dangerous! You could break your ankle in one of these holes!" He looked at me and said, "That's kind of the point, isn't it?" It is kind of silly to complain that a man-trap is dangerous. I must try to remember to tell our garderner about the hazard. On another front, I am trying to put together a kind of compendium of do's and don'ts, mostly don't's, to improve manners out here in East County. So far I only have two entries, based on real events: One: if you are walking down the sidewalk with your girlfriend, do not spit immediately after kissing her. Two: No watching TV on your driveway. If you must, do not do so in your underwear. The other night I was sitting eating dinner when my lovely wife Jeanne said, "Get away from me you fat tub! Ughh! You smell!" I was able to determine after a few moments, fortunately, that she was not addressing me but Denali, whom I now call Great-Hearted Denali, after his heroic but very expensive survival of heat stroke a couple of years ago. He is, it is true, fat, and produces odors that defy veterinary science, or at any rate, meets with indifference from it. To my complaints that he smells, veternarians uniformly reply "he's a lab." Still, I am back on the Atkins diet. You can't be too careful about these things. For breakfast, steak and eggs. For lunch, steak, eggs, and a salad, and I seem to be losing weight. The really sobering thing is realizing how much I must have been eating before. By limiting myself to three large meals a day, I am making the pounds just fall off. I ignore all that nonsense about avoiding caffiene and alcohol. Blog on, part 2 By Tom Smith If the FEC does with Rick Hasen advises, I guess I can come out of my bunker. I hate Mc-F, but I will admit that if a blogger is getting paid by a campaign, he is doing political advertizing or something of the sort. What the FEC should do, and what they will do, might be two different things, however. March 08, 2005
The Journalism Bubble By Mike Rappaport In the Wall Street Journal today, Bret Stephens discusses several issues where journalists got it wrong recently. The cliche is that journalism is the first draft of history. Yet a historian searching for clues about the origins of many of the great stories of recent decades -- the collapse of the Soviet empire; the rise of Osama bin Laden; the declining American crime rate; the economic eclipse of Japan and Germany -- would find most contemporary journalism useless. [Journalists missed these stories.]This sounds great, but the problem is that when a large number of journalists all believe one thing, a journalist who asserts the opposite will be criticized. He may ultimately be vindicated, but that may be many years down the road. It is much like a stock market bubble. Some people knew that the internet stocks were overvalued in the late 1990s, but they did not sell, because they knew stock prices would remain high for a while, and they would look stupid and unsuccessful. There was little benefit to being too far ahead of others. Sick puppy update By Tom Smith White hate groups paying attention to bloggers. I hop5e the FBI is keeping any eye on these people. I can't say I feel very comfortable that they are. "A Bad Idea Migrates from Left to Right" By Gail Heriot The always-interesting Andrew Ferguson has an article about the Bradley Awards in the March 7th issue of the Weekly Standard. Ferguson writes: "CONSERVATIVES FROM ALL OVER DESCENDED upon the Kennedy Center in Washington, D.C., on the evening of February 16 to witness a gala celebration marking the second annual Bradley prizes. As it happened, only a few weeks before, the newspaper Crain's Chicago Business published an eye-opening report on the liberal MacArthur Foundation's "genius grants," which the conservative Bradley prizes self-consciously emulate. The coincidence of these two things, the Bradley celebration and the newspaper report, is the kind of serendipity that grumpy magazine writers live for. Ferguson continues: "... Slinging around great bags of money, with no expectation of return, ... really does seem like one of those ideas that only a liberal could think was terrific. The entire domestic policy agenda of Lyndon Baines Johnson was based on it, with well-known consequences. Conservatives are made of sterner, or at least more realistic, stuff.I was among the 500 or so attending the Bradley awards gala month and saw my friend and comrade-in-arms Ward Connerly receive his award. I drank champagne and wolfed down hors d'oeurves as if I hadn't eaten in days (the little crab cakes were great). But I'm inclined to think that Ferguson is right here. Don't get me wrong. I believe that conservatives should take more, not fewer opportunities, to honor their special heroes. Moreover, Ward and his fellow award recipients--Robert George, Heather McDonald and George Will--all richly deserve the recognition they received. If I had unlimited funds, I'd write each one of them a check for ten times the $250,000 (yes,$250,000, the Bradley Foundation is a bit more frugal than the MacArthur Foundation) and more. But I don't have unlimited funds, and neither does the Bradley Foundation or the so-called conservative movement in general. And I'm not convinced that this is the best way to spend $1,000,000 plus the cost of all those nifty crab cakes (though I note for the record that nobody at the Bradley Foundation asked me, nor do they have any obligation to). I've long thought that conservative/libertarian institutions, large and small, tend to get more bang for each buck than their counterparts on the left. As Ferguson suggests, this may in part because on good days at least conservatives are more sensitive to the incentives they are creating. But I have a feeling that some of it is just the age of the institutions involved. Many of the right's significant institutions are simply younger that the left's. The ACLU, for example, has been around since 1920, enough time to bury lots and lots of bodies in the basement. It surely has more than one employee on the payroll who was once very talented and useful to the organization, but has long since ceased to be at least the latter. Indeed, they probably have quite a few employees who were never worth their salary, each with his or her own story. One might be the idiot nephew of the former vice president of some foundation who really, really wanted to find his nephew a job before deciding on the ACLU's yearly grant. Another might be the guy in the windowless office who threatens to sue any time noises are made about terminating his employment. Over time, budgets get freighted with special expenses of one sort or another. Just think of what the budgets of left-leaning institutions like Harvard University (founded 1636) must be like. The Federalist Society (1982), the Cato Institute (1977), the Heritage Foundation (1973) and the American Enterprise Institute (1943) are comparative babies. I'm sure that they have wasted a few dollars here or there, but their records are pretty clean when compared to their competitors'. They and their funders shouldn't assume that this will always be so. Sooner or later, the rent-seekers try to move into any successful organization; one way or another, money starts getting wasted. There's no easy way to avoid those problems. But for foundations to be vigilant about the incentives they are creating (or failing to create) when they spend large sums of money is a good start. And I Thought Our Mandarin Class Was Out of Control By Gail Heriot Poor China--so many talented people, so much potential ... so many bureaucrats. The most recent count is almost 47 million. Read about it in the Telegraph. March 07, 2005
Supreme Chaos By Mike Rappaport That's the title of a piece in the Wall Street Journal today written by Robert Nagel, who is visiting at the University of San Diego this semester. It is a devestating critique of the Supreme Court's recent death penalty edict. Here is an excerpt: Virtually every . . . aspect of Roper is . . . now routine: the happy insistence that the meaning of the Constitution “evolves”; the confident assertion that the nature of this evolution is ultimately a matter for the Court’s “own independent judgment”; the reliance on elite opinion as expressed in social science research or international treaties; the distrust of popular decisionmaking institutions like juries; the departure from prior rulings (in this case a decision rendered only 15 years earlier); the blithe willingness to settle under the mantle of legal principle such questions as “the age of maturity” – questions that are inherently unprincipled matters of degree; and the nationalization of issues once left to the states, along with the judicialization of policy decisions once thought to be legislative. All this is normal practice. It is the deeply confused and unsettling process that now substitutes for what at one time was conceived of as a set of fundamental, enduring principles that express the sovereign will of the people. It's a feminist thing, you wouldn't understand By Tom Smith Here's a lovely little story about Susan Estrich trying to blackmail her way onto the LA Times editorial page, where Michael Kinsley in now the op-ed editor. Via Powerpundit. At least for now the none-too-bright, but world class mean squawker seems to have met her match, that rare thing, a man who appears not to be intimidated by the usual threats. I get the feeling you would not want to be on Susan Estrich's cell block or playground in an alternative universe. According to the Post, she is threatening to spread the word the Kinsley's Parkinson's disease is affecting his judgment, as if you need a neurological disorder not to want a rabid duck in your newsroom. This from the gal who famously threatened to besmirch W's reputation, hinting she could lay her hands on all sorts of dirty secrets. It didn't work out too well. I'm not expert on careers, but it strikes me that Estrich may be exercising poor judgment in trying to blackmail her way onto a big newspaper job. It's not as if they are a university. The Relationship Between Economic and Political Freedom By Mike Rappaport This issue is one of the key ones for those who prize liberty and civilization. Gary Becker argues that economic liberty promotes political liberty, but the reverse is not as often the case: The consensus among these studies is that countries are likely to become democratic if economic growth succeeds in raising their average incomes to high enough levels. And countries with greater economic freedom, that is with freer markets and more secure private property, produce faster growth and greater prosperity than countries that sharply limit economic freedoms. Moreover, this strong positive relation between economic freedom and growth is largely independent of the degree of political freedom.One might, then, question George Bush's apparent promotion of democracy throughout the world without economic freedom. I have questioned this emphasis in the past. Yet, there are at least two arguments for Bush's approach. First, democracy is more prized by the people of the world than economic freedom, so it is easier to sell it. It is hard to imagine protests in Lebanon in favor of economic freedom (but wouldn't that be nice). Second, as Richard Posner writes: I don't think [George Bush's] principal objective was to promote economic liberty in those countries. I think the point rather is that democratic societies tend to be less aggressive militarily than authoritarian societies. The reason is that most people in any society have no taste for the risks and violence of war. Democracies may find themselves involved in defensive wars, of course, but there are very few examples of democratic societies warring with each other; that is, democracies are rarely aggressors (rarely, not never). It is therefore in the U.S. national interest to promote democracy throughout the world, because if all nations were democratic the military threat to the United States would be greatly reduced. It is true that democracy in the Middle East might bring to power in some nations radical Islamist movements. Nevertheless if they were genuinely democrat they would probably find it difficult to rally their people to support a militaristic foreign policy, or to support terrorist movements that might provoke a violent response from the United States.Assuming then that we can promote democracy, the next task will be promoting economic liberty in those democracies. A neat trick. If we figure out how to do it, it would be great to try it in the US as well. March 06, 2005
Warren Buffet, please shut up By Tom Smith The problem with low probability events in the world of finance is, they have mouths. Warren Buffet, who has made billions buying and holding stocks in real American companies, now wants to criticize Americans for spending too much. This from a guy who flies around in his own jet and generally spends more money than you and everyone in your extended family, times ten. Yes, yes, he lives modestly for a multi-billionaire. He lives like a multi-millionaire. Big deal. At some point, you get rich enough that you decide the real psychological returns are in exercising corporate power and shooting off your mouth. That doesn't make you the Dalai Lama. Every million or so trials, someone is going to end up the one-in-a-million winner. Buffet has yet to say anything that makes me think he is a genius. Buying into McDonalds like he did with Sir Bill also suggests he has no crystal ball. Nor is there any reason to think he understands the world economy any better than that other billionaire who cannot form a cogent sentence, George Soros. If you don't believe me, just try reading one of Mr. Soros's books. Proof positive that a billion dollars plus Euro-philosophy does not a clear head make. While I'm on the subject, George, do what any sensible billionaire does, and hire some underemployed PhD to write an intelligent book for you. It will be easier for all of us. Americans spend a lot of money because they like to. They have savings in the form of 401k's and real estate. The Japanese saved like crazy and look where it got them. Bet they wish they had bought jewelry, cars, anything rather than their worthless savings. In a globe as global as ours, it's not even clear what trade deficits mean, yet alone how bad they are. Last time Buffet spoke up it was to support the death tax. If you're so rich you can leave all your kids millions, and still have more than you know what to do with, I guess the death tax is one more way to pose as above materialism. What a crock. Buffet's the winner of a coin-flipping contest, and should have the good grace not to pretend he understands more than the rest of us about the future of the world economy. If we want overblown, self-impressed, self-serving gloomy sententiousness, we always have Paul Krugman. So do us all a favor, Warren. Have a nice big cup of shut the hell up, and work on your 4 iron, like rich guys your age should. Don't Blame Pete Wilson for Making California a Blue State (Part III) By Gail Heriot Just a bit more information about the reasons behind California's transformation from an electoral toss-up state into a Democratic stronghold: Between 1990 and 2000, California's population increased 13.82%. From the standpoint of race and ethnicity, the increase was overwhelmingly the result of an increased number of Hispanics and Asians. The numbers of whites (including Hispanic whites) actually decreased in absolute terms by 1.73% as a result of out-migration and low birth rates. Asians: 9.56% (1990) 10.92% (2000). Increase in Absolute Numbers: 35.19% Blacks: 7.42% (1990) 6.68% (2000). Increase in Absolute Numbers: 2.49% Hispanics: 25.83% (1990) 32.38% (2000). Increase in Absolute Numbers: 42.65% Non-Hisp. Whites: 57% (1990) 46.7% (2000). Decrease in Abs. Numbers for White (Hisp. or not): 1.73% Sure, it's an oversimplification to look at voting behavior of individuals exclusively or even primarily in terms of their race or ethnicity. But when you are dealing with large numbers, the patterns are both unmistakable and difficult to change except over rather long periods of time, usually generations. In the past couple of Presidential elections, California voters have voted this way: Asians: 1996: 51%Dem/44%Rep, 2004: 64%Dem/35%Rep Blacks: 1996: 83%Dem/8%Rep, 2004: 84%Dem/14%Rep Hispanics: 1996: 70%Dem/22%Rep, 2004: 68% Dem/31% Rep Non-Hispanic whites: 1996: 45%Dem/43%Rep, 2004: 47%Dem/52%Rep (The '96 data is from CNN, the 2004 data is from the L.A. Times. Sorry I couldn't find a full set of California data for 2000.) Given this change in demographics, it would have taken a realignment earthquake for California not to become a Blue State. Even George W. Bush, who has devoted substantial efforts to wooing the Hispanic voter could only get 31% of California Hispanics to vote for him, and that was regarded as quite an accomplishment. I have devoted three blog entries (see Part I and Part II) to rebutting poor Brendan Miniter's statement in the WSJ's Political Diary that Pete Wilson caused California to become a Blue State by his support for Proposition 187 (which prohibited the state from conferring certain benefits, including welfare benefits, on illegal immigrants). I don't mean to pick on Miniter in particular. Lots of conservative (and liberal) writers have made this claim. It seems fair to ask me why I feel it necessary to devote so much energy to this issue. After all, I voted against Proposition 187, and I consider myself moderately pro-immigration (although, as I said before, I would make substantial changes to American immigration policy if I were in charge). I am becoming increasingly concerned, however, that conservative "elites" are out of touch with both the rank and file conservative voter and with reality on the issue of immigration. Sure, immigration confers certain benefits on the United States and on all or many of those concerned. But it also confers some costs. And it's important to be realistic about it. Turning California into a Democratic electoral stronghold was one of them. I express no opinion about how that cost should be weighed; I merely point out that it's unbecoming to blame it on Pete Wilson. More Misinformation By Mike Rappaport The shooting of the car containing the recently released Italian journalist by American troops was unfortunate. It is still too soon to know whether the fault lied with the driver of the car or the American troops, but we can be confident of one thing. The journalist is biased and therefore not a credible witness. According to the New York Times: Italian journalist Giuliana Sgrena, freed from kidnappers on Friday, said U.S. troops may have deliberately targeted her car as she traveled to Baghdad airport because Washington opposed Italy's policy of dealing with kidnappers.Perhaps she worked for Eason Jordan of CNN. March 05, 2005
The French Blood Libel By Mike Rappaport This from Powerline. It really is quite evil: Clifford May has an important column in today's Washington Times about the 12 year-old Palestinian boy who allegedly was shot and killed by Israeli gunfire in September 2000. The death of the boy, Mohammed al-Durra, helped set off an intifada, according to former Senator Mitchell's 2001 report. However, May argues that Israeli gunfire did not kill al-Durra, and suggests that a government-owned French television network cameraman may have staged the "death."The post continues with more outrages. Blog on By Tom Smith I certainly hope all this anxiety of the threat of FEC regulation of the blogosphere is misplaced. But it's not too early to express the opinion that they can stop us from blogging and saying whatever we think, especially about political candidates, when they pry our keyboards from our cold, dead fingers. I mean, really. If some combination of the FEC and the courts really start to say, oh, you can't say that on your blog within 90 days (or whatever) of election day, I think we are really talking about a time for civil disobedience. Think Poland, Lebanon, Tianamen Square. OK, not Tianamen Square, but the rest. There are too many of us, and too few of them. Just let them try to squelch this new realm of free speech. I am not really kidding here. As I said, I think/hope the fears are exaggerated. But I do think political bloggers, left and right, should just prepare themselves psychologically for the possibility of having to take a concrete stand for free speech. Or maybe just prepare to prepare themselves. Free speech is one of those important things. If it does come to that, sticking together will be the important thing. The swarm. United. Will never be defeated. March 04, 2005
Don't Blame Pete Wilson for Making California a Blue State (Part II) By Gail Heriot In response to my earlier post, one of our readers asked me how many Latinos in California voted for GOP Presidential candidates in elections around the time of Proposition 187 relative to how many voted in favor of Proposition 187. Here's what I've found: (1) 1992 Presidential Election: 14% of California Latinos voted for George H.W. Bush, 71% for Clinton and an unspecified number but presumably about 15% for Perot, according to an exit poll taken by the Southwest Voter Research Institute. The article states that exit polls taken by the New York Times and by La Opinion/Univision "showed similar results." See Los Angeles Times, November 29, 1992. (2) 1994 Proposition 187 Election: 23% of California Latinos voted for Proposition 187 according to the L.A. Times exit poll. See Los Angeles Times, November 10, 1994. (Interestingly, in the initial polls, taken long before the election, a majority of Latinos voters (52%) said they favored Proposition 187.) (3) 1996 Presidential Election: 22% of California Latinos voted for Dole, 70% for Clinton, 7% for Perot, according to CNN. (4) 2000 Presidential Election: 23% of California Latinos voted for George W. Bush, 75% voted for Gore, according to the L.A. Times exit poll. See Los Angeles Times, November 10, 2000. It's hard to draw the conclusion from this data that Proposition 187 is what caused California to become a blue state. Proposition 187 actually polled better among Latinos than either George H.W. Bush before it or Bob Dole after it. What is provable from these data is that Republicans traditionally haven't done so well among Latinos (this is also true among Asians), and even though the situation is improving, it is still likely to be true for a long time that most Latinos and Asians will vote for Democrats. A far simpler (indeed pretty much irresistible) explanation for why California turned into a blue state is the expanding Latino and Asian populations. As I said in my earlier post, demographics matter. Fortunately for the California GOP, it's not all gloom and doom. The longer most immigrant groups spend in the USA, the more likely they will vote Republican. The Risk from Not Reforming Social Security By Mike Rappaport A good piece exposing the fallacy committed by those who believe that private accounts would be risky. They're Beginning to Notice By Maimon Schwarzschild Ward Churchill, and the academic iceberg of which he is the tip, is beginning to produce an understandable public reaction: Thank you Ward Churchill! As the poster child for so much of what's wrong with higher education today, you moved this issue from the back burner to the front burner of public policy. Whether you stay or go is merely another battle. This is about the war of ideas.Once the public begins to find out what has been going on, this reaction is inevitable, isn't it? "No glitter, just mud and night" By Tom Smith The largest criminal proceding in French history, involving a huge pedophile ring, is now underway. The details are sickening and alarming. If something like this happens in your country, I'd say that puts the burden on those trying to prove there is not a big problem with the national moral culture. Not that we don't have one, but the French, they may have one too, maybe even worse than ours. But they seem to know this very well: "We have gone, in the words of a historian, 'from tolerance to scandal,' " read an editorial in Liberation, a Paris daily, adding that the evolution reached beyond national boundaries. "That this trial is happening at the same time as that of Michael Jackson's is not coincidental either," the newspaper said. "But in Angers, there is no glitter, just mud and night." Theologian to watch By Tom Smith David B. Hart, whom I read whenever he appears in one of my favorite magazines, First Things, is a theologian to watch, as in, keep a reading eye on. For example, about pornography, he wrote this: We are already, as it happens, a casually and chronically pornographic society. We dress young girls in clothes so scant and meretricious that honest harlots are all but bereft of any distinctive method for catching a lonely man’s eye. The popular songs and musical spectacles we allow our children to listen to and watch have transformed many of the classic divertissements of the bordello—sexualized gamines, frolicsome tribades, erotic spanking, Oedipal fantasy, very bad “exotic” dance—into the staples of light entertainment. The spectrum of wit explored by television comedy runs largely between the pre- and the post-coital. In short, a great deal of the diabolistic mystique that once clung to pornography—say, in the days when even Aubrey Beardsley’s scarcely adolescent nudes still suggested to most persons a somewhat diseased sensibility—has now been more or less dispelled. But the Internet offers something more disturbing yet: an “interactive” medium for pornography, a parallel world at once fluid and labyrinthine, where the most extreme forms of depravity can be cheaply produced and then propagated on a global scale, where consumers (of almost any age) can be cultivated and groomed, and where a restless mind sheltered by an idle body can explore whole empires of vice in untroubled quiet for hours on end. Even if filtering software were as effective as it is supposed to be (and, as yet, it is not), the spiritually corrosive nature of the very worst pornography is such that—one would think—any additional legal or financial burden placed upon the backs of pornographers would be welcome. His writing style is more ornate than I prefer, but golly, he hits a lot of important nails on the head. Of course, you try to shelter your kids from this stuff. Our kids go to a local Catholic school instead of the public middle school which had to have an emergency parents' meeting about the "blow job contests" that were going on. It's not just the internet, it's the whole culture, and how are you supposed to filter that out, without turning your kids into freaks? I bought Hart's ecstatically reviewed book, The Beauty of the Infinite, inspired by his wonderful essays in First Things. Unfortunately, I'm finding it pretty hard going. Hart is a postmodernist, sort of. Or maybe a post postmodernist. In any event, he is engaging in this book Derrida and his ilk, using many of the dead, opaque Frenchman's own words and concepts, if that's what they are. There have been quite a few paragraphs at the end of which my honest reaction has been, "well, I have no idea what the f#$% that was about." I attempt to read a lot of hard stuff, so that is a frequent reaction on my part. With postmodernish talk, however, I'm never sure whether it's me or that what is allegedly being expressed really is unintelligible. Oh well. Hart's essay on theodicy and tsunami in this month's First Things, unforunately not available on the web, is the most thought provoking thing I have read on that difficult topic in a long time, since I guess Alvin Plantinga's book some decades ago on theodicy. Which is not really a book on theodicy, I suppose, but on God and evil, anyway. Hart's idea is completely different. And quite a bit scarier, sort of Schopenhauer but help has come/is on the way. Maybe it will be available on line next month. Judges should be safe By Tom Smith Judges need to be protected. This whole story is very upsetting. I remember once or twice as I child sitting up with my dad, who was a state court trial judge, as he waited through the night, having been informed that some miscreant he had sent to the Idaho state penn had busted out. He professed not to be worried, but he wasn't sleeping either. The Boise police, whose favorite judge he was not, would cruise by a couple of times; other than that, it was up to him and his 12 gauge. I of course thought it was exciting, a view that would no doubt have changed had the murderer on the lamb shown up. Most threats against judges are just hot air from people who prefer their victims weak and looking the other way, but you never know. I now have two federal judges in the family, and the reports in this story about the U.S. Marshall Service are not particularly reassuring. It seems they need to be beefed up, probably better trained and paid more. The murder of Judge Lefkow's husband and mother looks like the work of a white supremacist hate group. Unfortunately, there is a history of wacko white supremacist activity in Idaho, and growing up there in a family connected with the criminal justice system, you inevitably learn something about them. They are very evil, very dangerous people, largely based in prison gangs that extend across the country, as far as I can tell. It hardly needs to be said, but this act of terrorism against the judicial system is an attack on the rule of law, every bit as serious as islamofascist terrorism. Federal law enforcement should find out who is behind it, and eradicate them, root and branch. March 03, 2005
What's the role of math in economics By Tom Smith This is interesting. What Arnold King says rings true with me, especially regarding macroeconomists, based on my one year observing economists in the wild at the Council of Economic Advisers. The Filibuster By Mike Rappaport Over at Legal Affairs Debate Club, the desirability of the filibuster and the constitutionality of changing it through the so called "nuclear option" were debated by Erwin Chemerinsky and Steve Smith. Peculiarly, Chemerinsky published an article in 1998 that was somewhat critical of the filibuster, but now he comes across as much more of defender of it. The main change in circumstances appears to be that Republicans wanted to use it back then, but Democrats employ it today. Perhaps there is some other distinction I am missing, but Chemerinsky says nothing about his change in position. For a criticism of Chemerinksy on these grounds, see this post over at the Volokh Conspiracy. I suppose that I am particularly sensitive on this matter, because I have written extensively in this area and have tried to take positions that are not driven by the partisan interests of my preferred political party. While I believe that the filibuster is constitutional, I also argue that it cannot be entrenched against change and therefore the so called nuclear option, where a majority would amend the filibuster rule, would be constitutional. (John McGinnis and I have an op ed piece making this argument, which is supposed to be published soon.) While this position supports the Republicans, John and I have also written in favor of using a supermajority rule to govern the confirmation of Supreme Court justices. After all, if the Supreme Court functions like a sitting constitutional convention, rewriting the Constitution as it sees fit, then there is an argument that the justices should be required to secure supermajoritarian support just as constitutional amendments are required to secure such support. I have also argued against the Republicans concerning recess appointments. While I generally support President Bush’s judicial nominees, and I believe that the recess appointment of judges puts pressure on the Senate to compromise with the President, I believe that these recess appointments are unconstitutional. It is not that judges cannot be recess appointed. Rather, the recess appointment power only confers narrow authority on the President to make recess appointments when the Senate would not be in a position to confirm a nominee – in particular, when the vacancy arises during the recess of the Senate and the recess appointment is made during that recess. President Bush’s recess appointments, like those of previous Presidents, both Democratic and Republican, do not satisfy this requirement. Religion's Answer to Hunter S. Thompson By Maimon Schwarzschild One of the great televangelists died last week: Gene Scott. This English obit is a little snooty (and registration is required) but it captures the general flavour: Scott's appeal lay in his genius as an entertainer. Buccaneering, shaggy-haired and bearded under a bandana or flamboyant hat, he was by turns unpredictable, outrageous, funny and inspired, but always compelling. Fat cigar in hand, his face contorted with rage, he would mix scripture with profanity-laden monologues about the state of the world ("Nuke 'em in the name of Jesus!" he cried during the Gulf War), punctuated with demands for more money.Scott was surely an improbable figure on television: he had the manner of a crudely intelligent and very ill-behaved good ole' boy. He was gloriously ill suited as any sort of pastor. Scott was the the son of an itinerant preacher, and took up the family business, as so many people do. But unlike many second generation evangelists, he was the very opposite of the unctuous, smoothly corporate evangelist. Gene Scott was one of life's rowdies. The Telegraph delivers, perfectly deadpan, a fact I had not known about the preacher that Scott's father apparently replaced when the Scotts moved to California during the Depression: The son of a travelling preacher, Eugene Scott was born on August 14 1929, at Buhl, Idaho. Shortly afterwards, the family moved to Gridley in northern California where Gene's father took over as pastor of an Assemblies of God church after the previous incumbent crucified himself.Go ahead and register and read the whole thing. March 02, 2005
More On The Talmud By Maimon Schwarzschild A little more on the Talmud, and the "oven of Akhnai": The "oven of Akhnai" is one of the Talmud's most famous, and most enigmatic, stories. ("Akhnai" was probably just the name of the oven's owner.) Tom's correspondent rightly reports that the story is in Baba Metzia, a tractate of the Talmud. The Talmud has six "orders", like "Titles" in the US Code, and each order is divided into tractates. Baba Metzia is in the "Damages" ("Nezikin") order, and it is mostly about Jewish tort law although, as always in the Talmud, there are lots of digressions. (If you study torts in Talmudic Hebrew and Aramaic when you are fourteen or younger, as Jewish kids who attend a yeshiva do, law school in English in your twenties is more or less a piece of cake.) The Talmud "interprets" the Torah, mostly by way of debates among the Talmudic rabbis: for almost every opinion, there is a counter-opinion; usually lots of counter-opinions. The "oven" dispute was over whether an oven made from composite pieces was ritually clean. (It is obscure even to Talmud scholars what the ritual context might have been.) Rabbi Eliezer disagreed about the oven with all his colleagues, and he produced miracles to back up his argument, and eventually a more or less direct word from God. But the rabbis then quote the Bible that the law is "not in the sky", and they outvote Rabbi Eliezer: in effect, they outvote God. And the Talmud famously reports the divine reaction: God smiled and said "My children have defeated me..." It is a lovely story, with the obvious implication that law should be a matter of human and rational decision, not magic. When the story is retold, as by Tom's correspondent, it usually ends on the sweet and very unusual note of God's self-mocking smile. But the story in the Talmud actually continues, and turns much darker. Rabbi Eliezer isn't reconciled to his colleagues: on the contrary, they excommunicate him. Personal tragedy follows for R. Eliezer and his family and for many of the other rabbis; and public disaster follows as well. The mix of genuine sweetness and tragic implacability makes the story one of the most haunting and uncanny in the Talmud. One implication, at least, is that human responsibility doesn't necessarily -- or even very probably -- make for happy endings. No surprise By Tom Smith This doesn't surprise me. Arizona is just like East County San Diego, only more so. I live about 15 miles north of the border, and I see strange stuff (that's "weeeerd sh#t" in East County lingo) all the time. No, no actually black helicopters. But lots of green and white border patrol helicopters, grey Navy helicopters, and white SD County sheriffs helicopters. I see lots of small, fast, low flying planes flying due North from Mexico. Probably legit, but who knows? It's common to see vans and trucks stopped at the side of the road being searched by La Migra. Once returning from a hike where I had technically been trespassing, a police helicopter followed my car for a mile at rooftop level. If you think being followed by a police car is creepy, try being followed by a police helicopter. Border control activity seems definitely to have gone up since 9/11, which is fine by me. We might want, however, to consider putting a fence around Arizona. Jewish law By Tom Smith I received this interesting from a reader regarding my contrasting of the law made by the Supreme Court and the law followed by Orthodox Jews: you might be interested in my article, International also, as an Orthodox Jew, I would disagree somewhat with your characterization of the nature of Jewish law. While we do accept that G-d is the ultimate I recommend the book, Not in Heaven: the Nature and Churchill's Spirit Marching On By Maimon Schwarzschild No one who knows American higher education today will be surprised that Ward Churchill's successor as "chair" of the University of Colorado's Ethnic Studies Department sounds more or less like Ward Churchill: The acting chair of the University of Colorado ethnic studies department seems in some respects to be picking up where her predecessor, Ward Churchill, left off. In a slightly disjointed, poorly written essay for Counterpunch, a leftwing Web newsletter, Emma Perez suggests criticism of Churchill is a "neo-con test case for academic purges." In other words, Churchill is under siege from a vast rightwing conspiracy.Nor that Churchill himself was an invited speaker this week at the University of Wisconsin- Milwaukee. Nor yet that Churchill is being paid $4,000 for his gracious appearance: "[t]he school is paying $1,400 of Churchill's honorarium through student fees, the balance through private donations", according to the indispensable Rocky Mountain News. Students pay "student fees" compulsorily, of course. These fees are used on many campuses to fund politically tendentious events. No prizes for identifying what the political tendency always is. Meantime, at the University of Wisconsin, just prior to Churchill's address, a student rally celebrating free speech - and Churchill's appearance - will take place on campus, sponsored by the College Democrats, the campus Green Party and the Whitewater United for Peace Party.No prizes, either, for guessing whether the College Democrats "rally for free speech" when, or if, there is ever a speaker at the University of Wisconsin whose views are not so much to the liking of the College Democrats, the campus Green Party, and the Whitewater United for Peace Party. THE TEN SUGGESTIONS By Tom Smith As the Ten Commandments may not be posted on government property, or may soon not be, because of the First Amendment, as interpreted by the one, the only Highest Court, I humbly suggest the following as a substitute more in tune with our contemporary society and mores. I give you . . . THE TEN SUGGESTIONS I. Judge not, lest you make a judgment. II. Honor whatever. III. Be nice, if you feel like it. IV. Do not steal, unless you are a victim, and you probably are, then it's OK, or whatever. V. Same for killing people. VI. It's OK for you to have sex with your yoga instructor; your wife will understand, especially if you don't tell her. VII. Tell the truth, whatever you conceive it to be, bearing in mind there is no such thing as the "truth." VII. Don't be uptight about numbers and stuff. Math is bad for your self-esteem. VIII. That's not funny! IX. Everybody is more special than everybody else. X. The Supreme Court knows best. Now shut up. Not very diverse By Tom Smith Here's a shocker. Few Republicans on the Stanford and UC Berkeley faculties and it's likely to get worse. O well. I think it's less discrimination than self-selection of various kinds. Except in some fields, such as history, where if you were a conservative, you would just despair and do something else, rather than pretend you were interested in the abuse of female slaves in early medieval Blatovia. Why is it that only the chattering classes need "breathing room"? By Gail Heriot Tort law can teach you a lot about what a society values. I am particularly fond of comparisons between 19th century America and modern America, which I believe can be distinguished this way: the 19th century loved doers and modern America loves talkers. Let me start with the 19th century: It used to be fashionable for scholars to describe tort law of that period in terms of class warfare. Nineteenth century judges were said to favor capitalists–particularly railroads and manufacturers–over ordinary folks. Some scholars made it sound like this alleged bias was conscious and even corrupt. It comes a lot closer to the truth to say that 19th century judges were pro-action. They liked people who did things–whether it was build a railroad, till the land, or fix the plumbing. Call the favored class doers, not capitalists. The negligence standard, which had become the prevailing rule by mid-century, is an example of doer protection. Sure, if a doer was acting negligently in causing a harm, he should be made to pay damages. But if the accident was not due to negligence, why punish the doer? At least he was trying to do something useful and not just sitting by the sidelines–or so the 19th century argument might run. The textbook case used to demonstrate the establishment of a broad negligence standard in 19th century tort law is Brown v. Kendall. And it’s is an excellent example of what I’m talking about. The defendant in that case was not a railroad or a manufacturer. He was just a guy who was trying to separate a pair of fighting dogs. In doing so, he accidently hit the plaintiff with a stick, who was apparently standing there like a dummy. The court held the defendant could be held liable only if he failed to act with reasonable care. Contrast this with much of tort law in the 20th century, a period in which strict liability standards were on the rise. The essence of a strict liability standard is that action is not privileged over non-action. Act at your peril, for if you harm someone in the course of your action, you must pay damages, no matter how careful you were. Under this view, undertaking the risk that something will go wrong is part of what you do when you act. Furthermore, under the 20th century view, strict liability is especially appropriate if the actor is acting for profit. One can imagine a legal regime under which actors who are "goofing off" are held to a higher standard than those who are trying to perform a valuable service (and hence are charging for it). But the law is otherwise. We apply strict liability to sellers who are in the business of selling the product that caused the injury. We go more lightly on the dilettante. I’ll confess that I don’t feel strongly about the strict liability vs. negligence issue. I can see arguments both ways. What I find interesting is the stark contrast between the way the two eras treat doers and the way they treat talkers. Nineteenth century judges had no special place in their hearts for talkers. Defamation, for example, was a strict liability tort, when just about every other tort required proof of the defendant’s negligence. If you opened your mouth and defamed someone, these judges were not in the least interested to know that you honestly and reasonably believed that what you said was true. In their view, you speak at your peril. If you don’t want to run the risk of liability, keep your mouth shut (or at least avoid saying defamatory things). Running one’s mouth off was evidently not in the same category as building railroads, tilling the land or even separating angry dogs. Modern judges, on the other hand, evidently regard talk as the highest form of human activity. It needed "breathing room," they say. They held in New York Times v. Sullivan, for example, that in order for a newspaper to be liable for defaming a public figure it must have acted with "malice" (i.e. it must know of the statement’s falsity or act in reckless disregard of its truth or falsity). In particular, courts bend over backwards to protect newspapers, magazines and book authors–professional chatterers. Dilettantes received slightly less protection, instead of slightly more. It’s certainly not obvious to me that all this talk about the need for First Amendment "breathing room" is false. What I don’t understand is why it doesn’t seem to occur to courts that other equally or more valuable human activities don’t also need "breathing room" in the form of legal standards that give them the benefit of a presumption in the actor's favor. Chattering is fine. I do it for a living myself. But it seems odd to elevate it over activities that receive no such presumption like the manufacture of life-saving pharmaceutical products. Don't they need "breathing room" too? March 01, 2005
What are you talking about again? By Tom Smith There's a lot of recent philosophical work apparently on the idea of vagueness. You heard me right. What about heaps, piles, and I think you would have to include, shitloads? They have no precise definition, so do they correspond to anything? Do heaps exist? Anyone who can ask this question has not seen my closet. If you add another dirty T-shit to the pile, is it still a pile? When, precisely, does it become a shitload? I know, I know, there are serious philosophical issues here, such as whether language really means anything real, and otherwise we will be stuck listening to "pragmatists" who would foist on us their deeply impractical theories. But still. I'm glad I don't have to explain to my aged mother and father that I am working on the philosophy of piles. I can just hear them talking after I had left the room, or maybe hadn't: 'Eileen, did he say he was working on the philosophy of sheep? What the hell is that?' "Of heaps, Bill, not sheep.' 'Heaps? How can you have a philosophy of heaps? What the hell is that supposed to mean? Goddammit, why didn't he stay in law school?' They're very pragmatic where I come from. Chess lady By Tom Smith Why are there so few female chess masters? Beats the heck outta me, but here the question is pondered. I have been on a chess tear lately. Of my many offices and dignities, I am the chess coach of the Local Catholic Academy chess club. I am trying to improve my game. My game, unfortunately, sucks. And I am not just being modest. I am trying to figure out how to teach chess to kids, so that they actually get better and have some fun. For now, I am taking the no nonsense approach. Last week, one 3rd or 4th grade boy starting whining when I said they had to keep a scorecard of their game in algebraic notation (that's the standard way to keep track of a game, and essential to learn if you are to read chess books, study openings, etc. etc.). "No!" he said. "That's boring! I won't!" I tried reasoning with him, briefly. To no avail. So, out he went. Off to day care. He can come back when he's ready to write down 1 e4 e5. If he doesn't come back, fine. I guess he's not the next Bobby Fischer. I am on a mission from God. There is a real paucity of stuff to teach kids chess. The gap is between "Here's how the knight moves, boys and girls! Like a horsey!" and "The 'dragon' variation of Sicilian Defense is particularly aggressive, its asymmetrical positions being favored by many modern masters." I am taking my usual approach of throwing money at the problem. I would have made a good liberal. I have purchased a giant demo board, chess computer programs, chess clocks, and innumerable books. Kids who want to throw pieces at each other are dropping out. I feel like Gene Hackman in that basketball movie, except the ending may not be so happy. One of my most promising players is a little girl, a second grader, as cute as a bug's ear, who is very shy and just kicks the butts of older boys not every time, but often enough to make an impression. Also, unlike several of the boys, she has never hit anybody. The evolving standard of decency By Tom Smith Here's a deep question. Do you have to read an Anthony Kennedy opinion reversing a recent Supreme Court decision on (reportedly) grounds that "the evolving standards of decency" require it, to know it is utter rubbish? It is unfair, unscholarly to leap to that conclusion? Or is it like concluding, if you watch Baywatch, you will see babes? I do in fact believe that standards of decency evolve. It has been known to happen. I am far from sure they have evolved any, rather than devolved, or declined, since the Court last trained its moral searchlight on the question of the death penalty for underage killers. I wonder how the Court determines whether the standard of decency has evolved to this or that point? I suppose it is impertinent of me to wonder, but it's hard not to. It seems more likely what they really mean is that they are going to give American society a shove in the direction they consider more evolved in the decency department. What they really mean is something like, You can't execute someone for a crime they commited when they were a child! That's indecent! That view is not crazy. Just somewhat naive about the depravity 17 year olds are capable of displaying, such as in the case at bar, where the miscreant tied up a woman and threw her in a creek, to drown like a dog. I can even allow some evolving standard of decency argument with respect to cruel punishment. I imagine an accurate history of late 18th penology would be pretty blood curdling. So, fine, no tongue slitting or whatever. I'm not going to read the Kennedy opinion. I don't want to know. I don't watch Senators bloviate on CSPAN either. That's what we pay constitutional scholars to do, like those poor souls who follow the elephants in parades. * * * WELL, I guess you can read this. I read it, and I am pissed off, but not ill. It's Althouse with duelling excerpts from the Kennedy and Scalia opinions. Maybe I could have a research assistant sort of interlace the Kennedy opinion with Scalia rebuttals and that way get through it. Or maybe I'll just find a multi-volume fantasy novel to hide in for a while. Any ideas? And what is this use of international precedents? I mean, puhleeese. I mean, maybe if you have some novel question of law that has just never come up in U.S. law, like the ownership of marine mammals stranded in tanks aboard ships in international waters, for which we turn to the traditional laws of Yap, which happens to speak to this point, because of their frequent encounters with flying fish. Maybe then. But, O My Court, we already had law on this, and you made it. Just one final point on the evolving decency business. As long as we are making up laws, here's my suggestion for evolving decency. Let's evolve the decency of the prospective youthful killers first, then get rid of the death penalty. So, after all this decency evolved, we would notice, hey, it's been a decade or so since we got any 16 or 17 year olds commiting any brutal rape-murders, carjacking-murders, or depraved indifference execution of witness murders! Not a one! Decency must have evolved! Well, we might as well get rid of the death penalty for them. It's not as if we need it! That is how the evolving decency analysis could go. Sort of a desuetude approach. Is it "in" the constitution? Oh, you silly, naive little fool. Of course it is, of course. Why the Supreme Court bothers me By Tom Smith I seem to be going through one of my phases where the USSC really bothers me. I think I have an analogy that might explain it. Let's suppose you know an orthodox Jewish family. They live according to all these rules, many of them which are quite inconvenient. They believe they all ultimately stem from God Himself, via various interpretations. You think, well, I certainly don't think it's plausible that God doesn't want them to fix a clogged sink on Saturday, but they could probaby explain their reasons quite well if you asked them, and you have to hand it to them for sticking to the rules they are committed to living by. Now take the Supreme Court. They pretty obviously are just making it up as they go along, at the same time as they profess to be doing just what the Constitution or some statute requires them to do. But too often, they are just transparently doing whatever policy thing seems like a good idea to 5 or 6 of them. That sticks in the law oriented person's craw. But it doesn't stop there. It would be one thing to say, you know, the Framers, as we know from the recently discovered cache of Madison's letters, did not think cutting off someone's ears was particularly cruel as punishment goes. It was a tough time, yada, yada. Nonetheless, we are going to rule that otosection is banned by the 8th Amendment. We say it's cruel, and that's that, and oh, by the way, here's the best reasoning that a bright young thing who graduated from law school 18 months ago can up with that that in fact is how we must rule. Fine. I don't care. By all means, let's not cut off ears, even if the Framers thought it was OK. But what the court does when they make things up, more often than not, is make up stupid laws. If they are going to just make things up, couldn't they make up smart things, practical things? So for my current hobby horse: If you're going to make up some new law about racial segregation in prisons, why not make up some law to the effect that you can't separate prisoners by race, unless it satisfies a three part test, which is, of course, just a one part test, that being something like, unless failure to do so would result in lots of prisoners getting their throats cut in the middle of the night. To go back to the original analogy, orthodox Jews have to obey a lot of rules that strike me as impractical, but they really believe they come from God and presumably are sincere in their efforts to do His will. The Supreme Court is like a religion where every year the elders come out with new rules that everyone knows they are just making up, and instead of saying, Hey! It's OK after all to fill up your car on Saturday!, it's something like, Gosh, I'm sorry, but you can only eat soup with a fork! To be blunt, the Supreme Court is a policy making body, and they suck at making policy. Poor Prospect By Maimon Schwarzschild Here is Michael Tomasky in The American Prospect, the leading liberal monthly, of which Tomasky is Executive Editor: Well, it was delightful to read last week that President Bush believes in a free press and vital opposition.These are excerpts. Read the whole thing for an even fuller flavour. The American Prospect was founded by Robert Reich and Robert Kuttner as an "authoritative" liberal journal, and it is generally respected as such. It is not supposed to be interchangeable with MoveOn.org or the DemocraticUnderground. But these are not happy warriors. The tone of Tomasky's piece is strikingly bitter, with more than a touch of what Richard Hofstadter called the "paranoid style". Was the political tone much angrier than this in the Southern press and among Southern pamphleteers in the run-up to the Civil War? I don't think this sort of thing is a good sign; and Tomasky is scarcely unique, or even unusual, nowadays among liberals and Democrats. |