A True Opposition Party

Interesting: The road to Abu Ghraib is set forth by Joan Dayan's law review article on the meaning of "cruel and unusual," including how members of the "Justice" Department and such took part in the movement that "redefined the meaning of torture and extended the limits of permissible pain." Unpleasant reading. And, what was Julie Roberts thinking with those two names? No wonder her twins weren't given her last name!

Joshua Marshall puts forth this challenge: "whether the Democratic party can embrace a true, rather than a cosmetic, agenda of reform and whether Democrats, after ten years out of power in Congress and four years in exile from the White House, can start acting like a true opposition party."

One option supplied is "public access to legislation," which would give the public at least three days to examine pending legislation ... at the very least, we should allow Democrats in Congress such a right! The little gems like the power to examine tax returns that were found in recent omnibus spending legislation makes this sort of power quite important. Another related reform would be to divide up such legislation into small chunks, which along with the time to examine, was how things used to be done before the current hordes came into power.

I'd also toss in my interest in the "Draft Dean" to DNC chair movement, a position perhaps more suitable to him than presidential candidate. The discussion over at Orcinus (thanks BTC News for the link) also links to discussions on rural concerns, which can be a progressive gold mine, if properly handled.

It also is useful to recall that Purple Stater Sen. Reid now heads the Senate Democratic Caucus. Toss in newcomers from Colorado and Illinois (whose fellow senator also moved up the leadership ladder), and the possibility for a Midwest/Southwest surge is not completely out of the question. The chances are there, and the mess the Republicans and the ever growing "yes brigade" in the Bush Administration are making for the country makes them all the more essential.

Overall, I would also note that the venom some on my side tosses out there on their opponents troubles me. I know some of these people that are apparently immoral bloodthirtsy "Repugs" that are given about the respect of your average cockroach by the most strident of the bunch. Not to be too wishy-washy about the whole thing, but such feelings are a tad exaggerated, though we cannot ignore the truth in the charge.

After all, we are talking about many of the same people who elected Bill Clinton and made it possible to have (I couldn't believe this when I read it) something like fifty more Democrats in Congress back in 1994. Or, were among the over fifty percent that felt things are going badly. In other words, they are not only our fellow citizens, but part of our future vote pool. If, that is, the Democrats can manage to take advantage of the situation.
For instance, now that the shoe is on the other foot, the Republicans in Congress desire to nationalize many things that might very well be best left to the states. Their tendency to do so in matters of morality, has been if anything overdiscussed. Another example are attempts to federalize tort liability rules, including by providing special protections for gun manufacturers.

The trend, most recently in blue state Illinois, against such suits suggests that such legislation is ill advised. The Second Amendment might protect gun manufacturers, but it also might equally suggest a freer hand for states to regulate them. Trends in the courts and various ballot measures also suggests states should have flexibility on the matter of medical malpractice. Or, of course, medicinal marijuana.

Thus, home rule along with the excesses of the majority (minority?) might very well be a gold mine for Democrats. It's the circle of political life: the other side was quite successful using such tools; now it is our turn.

Plame and Ukraine etc.

Medicinal Marijuana Preview: Angel Raich provides a sympathetic face to those who want states to be allowed to authorize medicinal marijuana use ["obtained from within California, without any cost or commercial transaction"], especially given her negative response to Marinol (the pill with THC). A white, conservatively raised mother, Raich is "partially paralyzed, in constant pain from multiple disorders", and "keeps 98 to 100 pounds on her 5- foot-4 frame only by gorging on high-calorie foods and using marijuana to maintain her appetite." It are people like this who our federal government wants to make a criminal.

Valerie Plame Update: The Washington Post recently had an article discussing the latest developments in the investigation of the alleged outing of a CIA agent by those in the Bush Administration. The key matter of debate now appears to be when the information was released, since "there is little doubt that some White House aides circulated the Plame story a week after Novak's column appeared, in an apparent effort to cast doubt on Wilson's credibility." This might be rather crude, to put it nicely, but it does not appear to be illegal.

A violation of the Intelligence identities Protection Act would require a deliberate exposure by a government official before the matter was in the public domain. Since Robert D. Novak himself said that he received information from inside the administration, this surely occurred, unless the person can claim they didn't know "the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States."

But, finding a smoking gun on that latter issue apparently is much harder than the former, notwithstanding the fact the political immorality (though assuming certain individuals in the administration have shame is not something I would bet a meal on) of both is altogether clear.

"We cannot accept this result as legitimate because it does not meet international standards and because there has not been as investigation of the numerous and credible reports of fraud and abuse."

-- Secretary of State Colin Powell, qtd by NYT

Ukraine Election: The coverage of the allegations of a crooked election in the Ukraine has generally held back making Bush v. Gore comparisons. It is nice that the U.S., Russia's sympathies for the "official" winner notwithstanding, has spoken out against the voter irregularity. The fact they did so is notable, given their responses to attempts to overturn popularly elected leaders in both Venezuela and Haiti. The speed of the response also helps, especially in comparison to the wishy-washy comments before Iraq invaded Kuwait.

As Jack Balkan quipped, life might be easier for the current leadership in the Ukraine if Diebold or some other "no printout" voting system was used. The acts of our Congress and Supreme Court also suggests the Ukrainian Parliament and Supreme Court need not have given votes of non-confidence, which might very well lead to another election since the current one did not match the will of the people. Were cries of sore loser or politically biased judiciary raised as well? After all, both countries had divided forces with emotional reactions to the results, though in the Ukraine the "loser" got a lot more support from his government.

I know the two situations have their differences. The point remains that the appearance of impropriety on our side, as well as some substantive evidence, provides too much fuel for such comparisons. This is just plainly unacceptable, though too many people clearly do not give a damn.

Football: Though a battered NY Giant defense did a good job holding back a top level Eagles offense, the rookie QB showed his inexperience, and couldn't take advantage of repeated scoring opportunities. A blocked punt gave the Eagles the opportunity to put it away in the Third Quarter. The NY Jets had another messy game vs. Arizona, and like the last one between the teams, it was a low scoring affair (13-3) with a back-up QB involved (and a third stringer for part of the First Half).

Overall, there were a good many interesting games. Those offensive powerhouses of Cleveland and Cincinnati scored a combined 106 points (seven shy of the NFL record). Buffalo (vs. allegedly superior, but falling hard, Seattle), Carolina (winning a battle of subpar former Super Bowl teams), Houston (vs. the Titans), Miami (winning the battle of the losers), and Oakland (vs. 11 point favorite Denver) all managed to win.

The Oakland/Denver night game (in the snow) was an apt finale on the day. Because of a blocked extra point and two failed two point conversions (suggesting yet again the principle of "go for one" early), Oakland had to block a medium range field goal at the end of the game to win 25-24.

And, there is still the St. Louis/Green Bay game tonight! Go Cheeseheads!

Facts: They Are Such Complicating Things

Finding Neverland: This film is a fictionalized but apparently still fairly true to life account of the inspiration behind the play Peter Pan, one which (much thanks to a wonderful performance by Johnny Depp as JM Barrie) does a good job exploring its inspiration: the spirit of imagination mixed with some more somber elements of the characters' lives. Kate Winslet, one of my favorite actresses, is also among the cast, which is a fairly good inducement to watch as well.

I recently referenced some comments I wrote concerning a NYT article on a Bronx judge's holding that turned out to be partly based on mistaken facts. He allowed for a limited exception to the requirement of actual face to face testimony when certain 911 tapes are involved. The actual tape in question was not of the witness, however, and the case for various reasons was ultimately dropped.

As noted by Discourse.net, this reliance on questionable facts is not only far from uncommon, but is not necessarily problematic. After all, the ruling decides a matter of law, which future courts can apply to their own facts. And, this particular case has become rather useful nationwide. For instance, as someone apparently familiar with the situation informed me, in this particular case it was "the tape or nothing," since local policy is not to force nonconsenting victims of domestic violence to testify.

Though this sort of thing does happen a lot, it's useful to note as well that judges often are motivated by certain facts when deciding the law. They might decide things differently, rightly or wrongly, if the facts were different. The facts are sort of a thumb on the scales, so to speak, especially when using certain "tests" that are a bit arbitrary. Judges are known for writing opinions that lean the facts a certain way, which also influences how the judgment is accepted by the public at large. For the specific litigants, this arguably might lead to some unjust results in specific circumstances.

Also, the specific facts in this particular case underlines the value of actual testimony, given the tape in fact was not of the person it was assumed to be. The net result of the case made the problem somewhat moot, but it does provide a warning all the same. A causal reader of the opinion might feel it a good case for limiting a too strong reading of certain constitutional commands, but one who knows the whole story might have a somewhat different view of the situation.

Fine article all around (Discourse.net provides a link), and a search has determined the writer not only has a lovely name, but a lovely ability to write interesting articles. The general public needs such articles to get a better flavor of the complexities of the law.

Rights From Wrongs / Medicinal Marijuana

Rights From Wrongs: A Secular Theory On The Origins of Rights by Alan Dershowitz appears to have grown from the author's previous small volume on the Declaration of Independence in which he attacked the concept of natural rights.* This follow-up (a bit longer, but still quick reading) argues that the best way to "invent" (for he does not before they "exist" in nature to be discovered) rights is to examine the wrongs society have suffered.

For instance, slavery determined that freedom over one's person must be a basic right of a free society, even if we are not exactly sure of the best way to compensate a person for his/her work. This focus on wrongs as compared to ideals for us to strive for is felt by the author to be an easier way to reach agreement, given generally it is easier to accept that something is wrong than to decide how to do things right. Or, as a doctor might say, "first do no harm."

One example that I would use in discussing rights from wrongs is the drug war, a small aspect of which was recently discussed here in relation to use of illegal drugs in a religious ceremony. Oral argument on a case involving medicinal marijuana use in California will be held on Monday (check Slate for the likely Supreme Court Watch coverage of the event). The ultimate question (though I and many of those supporting the patients also support a wider argument) is federalism: does congressional commerce power reach local medicinal use?

The Supreme Court a few years ago held that distributors of marijuana cannot use a "medical necessity defense," but three justices (Justice Breyer did not take part because his brother took part in the ruling below) specifically said that users might be able to raise such a defense. Justice Stevens in his concurrence cited the various ballot measures that allowed for medicinal marijuana use, and said federalism concerns should caution unnecessarily setting up federal/state conflict.

As suggested by one commentator, it is unclear where such patients will receive their supply -- they surely cannot all grow the stuff. Perhaps, if the local or state government was directly involved it would be a different story. The main opinion was purposely narrow in its reasoning, so many questions were unanswered. There is some reason to hope, therefore, that the patients might win.

No matter how it decides, the growing number of states that allow medicinal marijuana use (which someone who is much more conservative than I firmly told me recently should obviously be allowed) suggests that in some small ways at least that people realize the idiocy of the extremes of the drug war. The best way to stop big wrongs is sometimes small reasonable steps, and allowing state experimentalization on this issue is this principle in action.

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* The author provides an interesting and thought provoking discussion in both books, but tries to prove a bit too much at times. Overall, his argument is that the concept of "natural rights" is nonsense since nature is morally neutral. He does note that nature must obviously be taken into account when determining rights, but it is often quite immoral too.

Also, there really are no "self-evident" truths agreed upon by people overall. Since anthropologists have found certain norms that cross cultures (some limit on murder and incest comes to mind), I find this a bit exaggerated, but his basic point is sound. Overall, perhaps the natural rights effort is best seen as "rights that are developed by taking nature into account," which seems to me a worthwhile if somewhat limited value enterprise. [Yes, many twist nature to fit their moral beliefs, but this problem arises across the board.]

Ministers of Justice

And Also: I discuss a pair of some of the several legal matters discussed in today's paper here. See also, TalkLeft's comments on the latest attempt to attack the ICC. As to Thanksgiving Football, Detroit's inability to score touchdowns and stop turnovering the ball finally caught up to them in the closing minutes of the First Half. The Colts did miss an extra point. The Bears lost another QB and the game, but partly because Dallas used Vinny Testaverde in the Second Half. Bad form!

The school [Liberty University], which says its mission is to train "ministers of justice," is part of a movement around the nation that means to bring a religious perspective to the law and a moral component to legal practice.

Are such law schools somehow troubling or even dangerous? After all, they have professors apt to make remarks such as: "Something that is contrary to the law of nature cannot be law." Likewise, many have trouble getting accreditation, which is liable to get you in trouble when trying to obtain a law license.

One discussion (linked by Eugene Volokh) basically says no. Though someone totally guided by "God's law" surely isn't fit to be a judge, the law schools in general just provide another point of view -- a "Christian Legal Movement" of sorts. And, for those worried about judges guided by the Bible alone, many can be found that go to your run of the mill law school. True enough. The accreditation is troubling, but also probably an equal protection / viewpoint discrimination suit just waiting to happen.

Furthermore, many liberal law professors do what Liberty University professors do: they teach the law, but also suggest what the law should be. If they only do the latter, yes, something is wrong. So, though a law school so dominated by one viewpoint is troubling to me on some level, I think it probably adds to the overall "school of ideas" in the long run.

The bloggist, however, throws in a shot at liberals (and Roe; very tiring) who support a "living Constitution." These individuals, so it is claimed, should realize that the open-ended nature of their philosophy raises the possibility of conservatives motivated more by personal preference than the "law" itself. So, Justice Scalia is right that textualism and originalism (he is no pure textualist, given his Eleventh Amendment jurisprudence, and he doesn't claim to be) is the best way to go.

As discussed by Justice Breyer at the end of an interesting speech on the Constitution and "active democracy," this is just plain silly. Anyone who is honest about Justice Scalia's* jurisprudence would know that as well -- both textualism and originalism opens up the way for loads of personal ideology to "infect" one's interpretation of the Constitution (and law in general).

Furthermore, I'm always tired of those who use Roe as their whipping boy. Legal Fiction, a progressive blog, also is strongly opposed to the opinion on "textualist" grounds. As suggested by quite a few commentators as well as (if not explicitly) later Supreme Court opinions, it can quite easily be defended on textualist grounds. I find it at heart a religious freedom (disputed moral/religious doctrine) and equal protection matter with a few other (textual based) things tossed in as well. Finally, at least two of justices who voted to uphold the right to choose an abortion are personally opposed to the practice.

If those who overly rail against religious law schools are somewhat biased, their critics are not free from blame either!

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* Justice Scalia included masturbation as one of the acts that a state might ban on moral grounds. Therefore, maybe he is the one specifically concerned about an appellate ruling now being examined by the Supreme Court. It involves a male police officer who lost his job when it was discovered that he sold porn videos of himself masturbating in a generic police officer uniform.

The appellate panel voted 2-1 (two women vs one man!) that the district court judge might very well have not properly respected his freedom of speech on his own time. SCOTUSBlog has the link.

And also ...

Federal Budget Tidbit: A potential boon for Bush, $2 million is set aside in the latest federal budget bill for the government to try buying back the former presidential yacht Sequoia. The boat was sold three decades ago, and its current owners say the yacht is assessed at $9.8 million and are distressed by the provision. Furthermore, it is unclear (since such budget matters aren't generally like discussed or often even read by members of Congress) if the President wants the thing or what he will do with it.

Not quite as bad as the mysterious "hey it's not our doings" proposed provision giving members of Congress the right to look at our tax returns (Talking Points Memo has a running commentary, perhaps a bit too cynically), but surely up there on Sen. McCain's list of "reasons why drunken sailors love our federal budget process." Actually, it sounds like something one might do when drunk and free with one's money.

Various Bits: Could Blue States Secede?

Gadfly is an interesting blog with some very good discussions on it from a progressive/liberal p.o.v. One recent piece discussed how voters' low expectations and cynicism of politicians ironically helped someone who headed the system a majority felt was going in the wrong direction. I know such a voter, so fully believe in the concept. Of some solace, strong/outspoken progressives do appeal to many of these voters.

The Imperial Hubris author was on C-SPAN today, his name now widely known, and "Anonymous" will probably be off the next edition. I have the book and will probably comment on it when I get around reading it. The author criticized neo-cons, so it should be good. Lol.

Happy Birthday ... William Buckley Jr.

And, again, Happy Thanksgiving!

Pre-Thanksgiving Thoughts

Bush Pardons (Turkey Edition): I find the saving the practice of the President giving a pardon to one turkey for Thanksgiving (oh, the possible jokes applicable these days) a stupid practice. West Wing had a bit about it as few years ago in which CJ could not decide what turkey to choose for the privilege, finally feeling obligated in saving both of them. WW also had another amusing bit in which the President called up the turkey hotline to learn proper cooking techniques.

Anyway, such is sometimes the state of affairs when we no longer look at these animals as purely foodstuffs (Charlotte's Web and Babe highlight this theme, though children are likely to have hot dogs soon afterwards). I guess the whole thing started as a way to have a "national turkey," a sort of symbolic bird for the holiday. Fine enough for the lucky animal, I guess. Oh well. Does Alberto write the memoranda for these pardons too?

Football: Nothing says Thanksgiving more than mismatched football teams playing on short rest. John Madden no longer has the duty to bring out the mutant bird (multi-legged), but Dallas/Chicago does have a "evenly matched subpar team" flavor to them that the Colts/Lions do not quite have. One hopes that unless the mess down in South Carolina (who do they think they are? basketball players?), there will not be any fighting.

Though the refs didn't control the situation (extended fight, oversetting penalties), the teams did decide to turn down any bowl options (at 6-5, this is a bit sadly, an option). And, the retiring coach of the Gamecocks apologized during his valedictory remarks. This shows some more class than their new senator does when talking about single mothers/lesbians who happen to be school teachers (Sen. DeMint's advice? fire 'em!). The basketball authorities also came down hard on the infantile sorts on that end. Next, how about some real penalties on baseball players ... you know, something a bit more than $500 fines and paid suspensions for a few days (so tough!).

Thanksgiving: We all have something to be thankful for, though some might feel a bit less thankful than others. As to those individuals, I'm sympathetic, since when you come down to it, basically everyone is liable to have something on their side [e.g., I just saw a license plate that felt obligated to label the driver as a "Christian" ... no, not from around these parts]. You know, the old "they are starving in Africa" line. But, seriously, a word of thanks for the blessings I have, such that the aggravations (and there are those too) are just that much easier to bear.

And, remember, turkey isn't the only thing you can eat ... stuff is overrated anyway.

Choosing To Stick To Our Beliefs

Fun Movie: In the tempus fugit department, Seed Of Chucky is the most recent sequel to a 1988 film (the more serious thriller, Child's Play, the mom in the movie now starring in Seventh Heaven). The original is quite good, while the latest two sequels (Bride of Chucky being the other) are quite fun. They don't take themselves too seriously, though there is the requisite amount of gore. The true star of both is Jennifer Tilly, who also plays herself in the current film. I always liked her (she was a great interview on the Tom Synder Show), and she's great fun this time.

Though the discussions of what the Democrats will have to do to regain national power might lead one to think otherwise, it is usually not good to cry over spilt milk, wondering "what might have been." This is hard though given that I think we had a subpar candidate, so will always wonder "what if?" Anyway, as I mentioned a few days back, success in Montana suggests that the Democrats have ways of winning now with Colorado another example, both states from Red America. Toss in such close states such as New Mexico and Nevada, and I think the whole business is just a tad bit overblown.

No matter, we are told that the Democrats have to temper their positions to win, such as the right to privacy, or however one might want to label this bundle of rights. And, bundle it is -- the reason why I have been so fascinated with the area of abortion for so long is that there are so many issues involved, including such things as religion, women's rights, bodily integrity, control of one's health and well being, and privacy in intimate relations.

This is known deep down on some level by both sides. So, frame the issue differently (e.g., Sen. Kerry's "articles of faith"), put a different brand on it so to speak. And, how exactly do they suggest we cut back? The matter is seen perhaps best in the "partial birth abortion" legislation, which President Clinton vetoed and lived to tell about it, which ultimately was a matter of woman's health. I guess we are to sacrifice that for those few percentage points needed to win, huh?

The selective treatment of abortion matters suggests that we cannot take things at face value. For instance, I mentioned recently the abortion pill controversy, which admittedly has not gotten much press overall. At issue is at most three deaths and various negative complications, which is nothing to sneer at, but is sadly not unique when it comes to medication. Compare this to the thousands of deaths apparently caused by the drug Vioxx.

[Correction: Thanks to a comment, I saw the above paragraph was edited incorrectly. A discussion on how "the right to be left alone" appeals to both liberals and conservatives was cut into a sentence involving Vioxx. Anyway, the latter link furthers the argument made by the comment that Democrats should look toward social libertarianism to advance their interests, including the fact a conservative agreed with me. But, see also, the criticism by a conservative (on this issue at least) Democrat.]

On the other hand, when an extra provision is tossed into a spending bill that would block any of the measure's money from going to federal, state or local agencies that act against health care providers and insurers because they don't provide abortions, make abortion referrals or cover them, it is sold as a matter of conscience. [The breadth of the legislation would mean that conflicting state laws, a few of which are more liberal on abortion funding, would be overridden. State discretion is a sometimes thing these days.]

Reflect back to those dead Latinas ... or the medical complications possible in pregnancy. Sorry to be a bit blunt -- just trying to show what's at stake here.* Yes, Virginia, there is a difference when the Republicans are in power. Feel safer now?

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Anyway, the proper soul searching should be left to sports. For instance, sloppy play and a killer penalty toward the end of the game (one that I repeatedly read/heard was "questionable" -- oh, I despise when that happens), one that robbed the Giants (and new QB Eli Manning) of a good shot at getting the lead. But, even if the game (and likely the season) turned on a bad call, the team is flawed enough to blame other factors. For instance, if they could hold Michael Vick and the Falcons scoreless for the Second Half, why could they not hold the Arizona Cardinals to under seventeen points?

Oh well. The Jets won (messy, but we'll take it). And, while watching Brett Farve lead his team back to victory, one wonders -- does anyone love his job more than that guy?

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* I know this might be considered in bad taste, but when this administration and their allies decides to cut back on family planning funding and allow (or direclty further the right of) medical providers to be selective in handling out medical advice, there are real world consequences. See, e.g., some of the essays in The W Effect: Bush's War Against Women, edited by Laura Flanders. The idea that pro-lifers suddenly stop caring about children at birth is an exaggerated stereotype, but one that is not too surprising given their support of such policy choices.

And, I don't know how much the pro-life movement makes a concerted effort at making itself friendly to sympathetic people on the other side. I feel sorry for Feminists for Life and such fellow travelers. Surely, the right to choose an abortion is not the only way to stop the tragic results of certain pregnancies (or unwanted pregnancies overall), though we probably will never exist in an utopia where abortions will never be an important option. And, until we reach this utopia, women for various reasons should have a full (and legally currently have a pretty strong) right to choose whether or not childbirth is right for them.

Quasi-Poll Taxes and Other Election Issues

Stupid Scalia Comments Watch (2000 Election Edition)

Legislation, court rulings, and the Twenty-Fourth Amendment bars the requirement of poll taxes to vote. On the other hand, there might be other quasi-poll taxes out there all the same. Though the matter doesn't seem to effect my area in particular, there was quite a few reports about long lines at the polls earlier this month.

Toss in those who have to spend time on Election Day and so forth to deal with mix-ups and the like, and we are talking about a decent amount of time here. And, time is money, money that affects different people differently. Such a violation in spirit of the bar against poll taxes and the rules in place to uphold an equal and effective right to vote is just one more reason to be concerned about our current electoral system.

Useful, if underreported, hearings were held in Ohio to deal with such questions. In Ohio, where there just might be a recount after all (and Ohio Democrats got off their butts and challenged the lack of one statewide standard for provisional ballots, which was a major problem cited by Bush v. Gore), had many reports of long lines and other problems, which unsurprisingly was especially prevalent in economically poorer areas.

Likewise, when you have poor areas, you often have areas with heavy non-white populations. Though Republicans made gains in the Hispanic community, this still is primarily a Democratic voting bloc, and evidence was shown that they were crudely targeted by some seedy operatives for just that reason. This makes people suspicious of the intentions of the Republican Ohio Secretary of State, yet another reason why we need neutral electoral monitors. The Fifteenth Amendment is specifically concerned about black voting rights, but equal voting rights cross racial lines. Thus, all should worry about testimonials such as this:

I was told that the standard was to have one voting machine per 100 registered voters. Precinct A had 750 registered voters. Precinct G had 690. There should have been 14 voting machines at this site. There were only 6, three per precinct, less than 50 percent of the standard. This caused an enormous bottleneck among voters who had to wait a very, very long time to vote, many of them giving up in frustration and leaving.

To repeat, this is just not about who won. The Civil Rights Movement was not just some sort of get out the vote campaign by the Democratic party. It is about the integrity of the system that is at the heart of our political system. The same can be said about the results so far by those who investigated the vote in Florida. As suggested by the comments to Kevin Drum's latest post on the subject, (1) even though there doesn't seem to be proof of wrongdoing, there surely is clear evidence of voters legitimately questioning the integrity of the system and (2) this is a problem, even though the disputed numbers would probably not change the final results (though, we might be talking some significant numbers here all the same).

So, yes, some who are concerned about this issue have an additional agenda -- they fear that the election was robbed. Some just couldn't believe the result was fairly achieved (hey, I can relate). Again, this only underlines the problem: if a significant number of people don't trust a system, the fact some make exaggerated claims is largely irrevelant. The system is still in doubt, still is faulty, and lacks the proper degree of redundant safeguards that exist in matters rather less important. [A disputed football play is at times easier to review than election results.]

The system is especially problematic when the margin of victory in paper thin, which was the case in several races this year. If no system established by human beings can be without problems, it must at least have a level of trust that quite arguably just does not (or should not, if one is honest about how many actually are worrying about this) exist now. Given the system at issue, this is all rather troubling.

Kinsey

On the whole, Kinsey (on the life of biologist and sex researcher, Dr. Alfred Kinsey) is an enjoyable and well-made film. It is surely likely to be nominated for a few Academy Awards, especially since it meets the "late in the year" and "big biography" (with a period drama, life affirming disability, or other special feature bonus) requirements.

I think one can fairly criticize this or that aspect of it (e.g., Laura Linney as his wife has a somewhat underwritten role; Oliver Platt is an interesting if not totally fitting choice as college chairman), but what are especially notable about the movie are various features that stand out. These would make even inferior movies worth watching, thus makes Kinsey that much more worthwhile.

The movie begins with a well put together set of vignettes that give us a flavor of Kinsey's childhood. The individual scenes are powerful in their own right, but as a whole, they are a feat of biographical storytelling. It also does a great job in getting the viewer into the movie, which is not just about sex studies. The use of black and white in various cases also supplies a nice touch. Also, various scenes during the movie, including one in a gay bar, not only further the story, but also are well crafted overall. The final scene, though some might not totally like it, also is refreshing.

Of course, a movie about a sex researcher (if one who studied insects for much of his life) is largely concerned about sexual matters. And, given its subject, the fact that it breaks the usual rules found in movies is not too surprising. For instance, American movies nearly never show full frontal male nudity (nor women either, but given the usual shots of breasts, the net result is an imbalance), which is not the case here.

In fact, there is a run of the mill sex scene in which the male, not the female, is shown fully nude. The symbolism of just these few scenes alone is telling. Also, the movie plays with our assumptions about sex, including the sorts of women who have the highest sexual reactions. And, in part because of the bisexuality of its subject, the film has some refreshingly open scenes involving such matters.

The viewer is left thinking that we still are quite a far means away from the ideal Dr. Kinsey hoped to promote. For instance, Dr. Kinsey provided sexual counseling to couples at his college. We get a hint at why he is so concerned about doing so when shown the difficulties of his wedding night (c. 1920 ... both were virgins). It is interesting and somewhat amazing given the dominance of sex in our cinema and television programming that the trials and tribulations of the process is so rarely truly handled.

Oh, it is often a subject of humor and all, but usually the typical romantic storyline had the couple at some point going to bed together with little comment ... it all goes ever so smoothly, though their might be romantic complications later on. This is so even when teenagers are concerned, though things have improved on the page (for quite some time, teen fiction often provided some realistic portrayals of all things teen) and screen.*

Not only is this a rather dramatically lacking portrayal of the matter (though I guess it is hard enough for some actors to simulate sexual activity; making it truly realistic might be asking too much of them), it promotes a mistaken message of the reality of the situation. It is unfortunate that Dr. Kinsey would still probably have to teach the course shown in the movie, since sexual education in our schools (and overall, for parents who feel it has not place in the classroom) is still often at a woefully undeveloped state in this country. It is even more so that a matter that Dr. Kinsey (and human experience) tells us is so complex and intricate, so dramatically full of potential, is so often stereotypically portrayed.

The movie resists this to a certain degree, which is one more reason why it is well worth watching.

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* How television handles teenage sexuality has improved, but still is somewhat mixed. Gilmore Girls treated the sexual initiations of two of its characters rather shabbily, especially the embarrassment Paris was put through, but also the quickly unspoken nature of Rory's sexual activities (no change in status to town good girl for breaking up a marriage ... no talk at all). OTOH, the less well-known show Grounded For Life did examine in some detail the planning and unexpected results of the daughter's decision to lose her virginity at sixteen.

Drinking Tea For The First Amendment

Sick Joke Alert: "Not only are the Bush officials who failed to protect the country and misled us into war not losing their jobs. They're getting promoted," Maureen Dowd

A small, but accepted as bona fide, religious group illegally imported a hallucinogen to make hoasca tea for their religious ceremonies. When blocked by the DEA, they argued that the federal Religious Freedom Restoration Act gave them an exception to the generally applicable law. The Tenth Circuit of Appeals upheld their argument for the time being (via injunction), though it was divided on the reasoning.

Judge McConnell, referenced a few days ago as a long term advocate for conservative leaning religious groups, wrote a separate concurrence that in particular focused on why the group could ultimately prevail. [His comments on the technical issue suggests the value of using various disciplines to help interpret the law.]

Professor Hamilton, who strongly is against laws such as RFRA (and successfully argued in Boerne v. Flores that as applied to states, the law is unconstitutional*), wrote a column strongly critical of the decision. A basic problem in her argument is seen early on when she notes: "The Constitution's Free Exercise Clause has long been interpreted to allow neutral laws that regulate conduct - not belief -- to be applied to religious persons and institutions, along with everyone else in society."

This is only partially true. First off, from around 1940 to 1990, the federal courts specifically noted that religious conduct is up to a point to be treated (including when state action is involved) with special concern because "free exercise" does not just include belief. Using state constitutions, various state courts have done the same since then.

Likewise, aside from the fact that speech and associational rights in various ways involve religious conduct, there are various specific laws that treat religious activities in special ways. This includes federal civil rights laws and RFRA itself. Though she might think Flores stands for the broad principle that general laws (even those involving religious conduct) should be treated equally, the federal courts have not so held. Thus, though Hamilton's reading might be somewhat reasonable, it isn't the one currently used by the lower courts.

They read the opinion basically as a protection of federalism, and the opinion's focus on the Fourteenth Amendment (and later opinions used it as precedent for other federalism decisions) makes this appropriate. And, the Supreme Court has not challenged this interpretation, a court particularly concerned with its authority in recent years. [It should be pointed out that other provisions of the Bill of Rights also are applied differently by the states and federal government. For instance, the federal government is required to have unanimous juries in criminal cases; a few states allow less.]

This makes sense because not only did the Supremes specifically note that governments could make religiously based exceptions, the federal government has various powers (other than Section Five of the Fourteenth Amendment) that could be carried out in such a way to include them. So, instead of say including the provision in its spending bills, why not have one big ominibus law? Thus, as applied to the federal government, RFRA is still good law.

The fact that Congress passed the law suggests Prof. Hamilton's concern that the court here had to "second-guess what the people's representatives have done" is somewhat misplaced. Congress quite often passes laws that supplies various rights and privileges that somehow narrow other laws previously passed. The courts then have to balance the various laws and determine some sort of reasonable result. This is what Judge McConnell means when he notes that if one is troubled with the judgments made here, you would also be troubled with a lot more.

And, even under the current somewhat narrow reading of the Free Exercise Clause, discrimination against religious claimants is disfavored. Therefore, Prof. Hamilton's suggestion the church try on their own to get a special dispensation is troubling as well. Why exactly should some religious believers be allowed to use the rather similar hallucinogen peyote but not this one?

To the degree RFRA does away with such favoring of politically successful sects over others, it seems to be promoting clear constitutional commands. If nothing else, being particularly concerned about the matter and reading federal laws in such a way (if reasonably possible) to avoid it, is not something for which the courts should be criticized.

It is also interesting how she suggests those that do so in this case align themselves "with a more liberal agenda" in such a way promotes a judicial activism that "Republicans" hate. No, that doesn't work. First, judicial activism is not something one particular party favors ... boilerplate political arguments notwithstanding.

Second, religious freedom is not just a "liberal agenda" as we found out when examining the attempt by conservative legal groups to protect religious conduct and speech. Everything cannot and should not be so easy divided along liberal/conservative lines. The tendency for many to do so in religious matters in particular is troubling.

Prof. Hamilton is right to argue that it is difficult to carry out a rule that gives religion special benefits that the general public does not enjoy. All the same, we have traditionally considered religion special, including religious conduct. Thus, for instance, Jehovah Witnesses need not take part in pledge ceremonies and during the Prohibition sacramental wine use was allowed. Also, religious institutions are given special allowance to ignore certain civil rights laws as to discrimination by religion and even gender.

And, the courts had some role in formulating and carrying forth such exceptions, especially if the general law specifically required it. Are we to do so selectively? Are we to avoid the problem by suggesting that the sort of free exercise of religion we specifically protect only involves belief?

I guess we can, but it wouldn't be very convincing or equitable.

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* Mark Kleiman, who I have referenced lately on other matters and is an expert in drugs and public policy, mentioned the 10th Circuit case on his blog. The case can thus be accessed from his blog or the Hamilton essay. He noted that he was an expert in the case (he spoke on behalf of the church, though he didn't say so), so felt it improper for him to state an opinion on the matter.

I don't quite know why, though perhaps the ongoing nature of the matter influenced his opinion. OTOH, Prof. Hamilton does not mention her role in the Flores case. In an earlier column, Prof. Hamilton did mention that she is a convert on the matter, which might explain her strident beliefs. Anyway, I think being aware of such background information is generally helpful.

Also, though I do not know if he discussed the matter, cases like this suggest the misguided nature of our drug policies. The either/or tendency that determines that any use of certain drugs must be banned, legitimate religious/medical/other uses notwithstanding, is ill advised and often leads to sad results. And, the policies tend to be arbitrary, thus alcohol was long allowed to native tribes, but not certain hallucinogens. This is a rather ironic result, given the historical record.

The specially regulated nature of the ceremonial use of mind altering drugs teaches something as well -- certain dangerous substances and activities will always be used in our society, so its best to accept those who find ways to do so in a safer way. In respect to this subject, Kleiman's comments regarding needle exchange policies is worth reading.

And Also ...

Abortion Pill: There is a story in the news about the "third" death caused in this country by the use of the abortion pill, and a check of various versions suggests a certain lack of context. Though many highlight the tragic death of an eighteen year old whose father now wants the pill banned, the other two deaths are somewhat controversial. The most recent might not even be related to the pill itself while another involved a woman who failed to go to the doctors upon signs of serious distress.

Also, putting aside the long use in other countries, only a very small number of users in this country (in a much shorter period of time, so the numbers are somewhat hard to quantify) even have complications. Finally, what are the numbers of deaths and complications of other traditional birth control or birth overall? The use of the pill, which involves an extended period of time outside of the doctor's office, is not free from problems. But, it's hard to fully judge without proper context and details.

No Guts Alert: I discuss Sen. Leahy's (minority leader of Judiciary) sympathetic comments on the Gonzalez Nomination here.

Darn I Missed The Best Part Of The Game: I turned on MNF late, so missed the intro involving a Desperate Housewife apparently exposing herself to Terrence Owen (thus apparently inspiring him to help crush Dallas ... though they didn't need Nicole Sheridan for that [though she's good on her own]) of the Philly Eagles. The head of the league, in response to some of the expected publicity ... um controversy ... this brought about criticized it as totally inappropriate.

Thus, along with quick shots of a nipple, unshown nudity is also not allowed. Beer commercials, sexual stimulant ads, and cheesecake cheerleaders (along with Dolphin and 49er games) are. Got it.

Late Night Movie Fun ... Sugar & Spice. No, not that sort of spice. Oh, and West Wing (which lately has a S&S gal in it) was pretty good again. Gilmore Girls was decent ... but the downer relationship stuff (though the grandmother had some great moments) still dominated too much. Next week promises some "big" Luke secret. Oh joy.

Ideology Matters

The Center for American Progress put forth an interesting report entitled "Ideology Matters: A Progressive* View of the Judicial Confirmation Process." It is a reasonable eleven pages plus notes and provides a useful recent history (lip service aside) of how the Republicans partook "in a concerted and methodical campaign to populate the judiciary with individuals who are ideologically committed" to their cause.

And, as Prof. Jack Balkin and others have noted, this is on the whole fine -- the selection of federal judges indirectly is controlled by the people themselves, who vote for those who nomination and confirm them. By so doing, they have an important role in the development of the law, which is affected by the particular judges that fill the courts in a certain era. And, if politics is going to have such a role, ideology surely will as well.

The important thing is to realize the fact and not be taken by canards like "I want judges who interpret the law, not make them." C. Boyden Gray, White House Counsel of Bush41, argued in a Senate subcommittee hearing that ideology should not matter. The judicial nomination process should only on the potential judge's role "to interpret and apply the law." This is either very naive, hypocritical, or a plain falsehood; his past activities suggest we can do away with the first one.

As to President Bush's comment, not only is it ironic (as a statement of judicial restraint) given the activities of the Rehnquist Court, but it is quite confused. We are not a straight civil law system like Louisiana or France ... we are a mixed system with a strong common law component. And, thus, when a court interprets something like "Congress shall make no law ...," it is in effect making law. Nothing new or remarkable about this fact, an overly simplistic view of the governmental process aside.

The report defines ideology thus "beliefs about the Constitution and the role of the courts in interpreting it; their substantive views on the law; and the philosophical ideas and attitudes that inform their worldview." As a progressive organization, CFAP obviously has a certain worldview that they would like to promote, one that involves the courts in meeting "the needs of a changing society and who will interpret the Constitution to preserve and promote the ability of Congress and the courts to protect fundamental rights."

And, certain "fundamental rights" in particular, given they look down on the current move by some in conservative/libertarian circles to bring back property rights into the forefront. [Putting aside the current controversy over pro-choice Sen. Specter, who is next in line for the chair of the Senate Judiciary Committee, economic issues such as environmental regulations and tort litigation are a major concern of those who influence judicial selection these days.] But, overall, their point that ideology matters and is a legitimate matter of debate is quite sound.

[CFAP clearly provides an anti-Bush spin and at times one must be careful to take things with a grain of salt. One example given of the perils of a too narrow of a reading of the Constitution is that a traditionalist/literal reading would have led to the upholding on bans on interracial marriage. This is half-right: it would meet the tradition test, but not the literal one for clearly racial equal protection is "literally" protected by the Equal Protection Clause.

On the other hand, when some progressives question Roe v. Wade on textualist grounds, they too are on dubious ground. Abortion rights quite arguably is also about equal protection and other things, such as keeping the state away from selectively supporting certain religious beliefs.]

This is not to say that ideology alone is important, and this is important given that it is likely Senate Democrats generally will have a bunch of conservative/libertarian nominees to pick from. Various other factors should be focused on: professional distinction, character, integrity, energy, diverse specialties, ideological/racial/gender balance, and so forth.

Likewise, the process itself should be set up in such a way that all sides can properly do their roles, including those providing a check on the executive. The attempts by the President and Republicans to speed up the process even more, take away chances for the minority to have a full voice in the process, and hinder bipartisan or outside voices (such as American Bar Association review) from having an useful role in the process should be opposed.

And, yes, as Senate historian Robert A. Cairo has noted: "The writings of the framers of the Constitution make clear that Senators, whether acting alone or in concert with like-minded colleagues, are entitled to use whatever means the Senate rules provide to vigorously contest a President's assertion of authority with which they strongly disagree." This includes the time-old rule that a simple majority cannot end debate.

Let's put aside the fact that knee-jerk unanimity among a party in this field was probably not what was originally intended (thus, "moderate" Republican Sen. Specter supported every one of President Bush's nominees to the federal judiciary, every last controversial/strongly conservative one of them). A strong involvement of senators in the nomination, the Advise and Consent, process surely is the least we can hope for.

And, ideology among other factors should be an important factor when they do so. We should be honest about this fact, since even if we are not (and try to use other things, such as competence or conflicts of interest that turn out to be somewhat selectively attacked), it will still be a basic part of the process. Finally, it is foolhardy not to realize the ultimate important of the judicial selection process as a whole. Just one case, in a state court at that, involving same sex marriage had a significant role in the last election.

The election also will result in a great altering of the ideological split of the courts, and as the report notes, ideology alone is an important determinant in judicial outcomes. And, many of the issues we find most important in some sense (as Alexis Tocqueville told us nearly two hundred years ago) ultimately involve the judiciary.

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* Some have looked down on the term "progressive," feeling it is some weenie form of the word "liberal," which has been defamed so much by the Right that society as a whole has drank the kool aid. A few even have flashbacks to the Progressive Party, which was seen as little more than a cover for the communists, which in itself is just a tad bit exaggerated. (A few of those people addressed in Profiles in Courage were progressives -- I do not think JFK thought he was writing about commies.) I guess one can go back and forth on the matter, but there is something to be said about using "progressive" to help develop a movement for the future. It has that fresh sound to it, doesn't it?

"Liberal" by the way has connotations of radicalism, again given how it has been framed, but in many ways liberals have conservative values that look back to a time before all the current craziness. You know the 1960s. Lol. Seriously, "liberal" traditionally had a more conservative connotation and in a general sense, our whole society is liberal. Something probably can be formulated out of these themes, and if nothing else, the defamation of the word has been outrageous. It is true that I'm not totally comfortable with certain things associated with liberals, including certain government programs and regulations, but "progressives" generally support them as well. So, I guess I will leave things wishy-washy.

The Right To Make Your Own Tragedies

No, this is not about Election 2004.

Robert I.H. Hammerman was a well thought of former Baltimore judge that recently committed suicide after long planning the event, even to the extent of writing a ten page suicide note that he copied/mailed (the day before) to 2,200 people. This bizarre public airing of an event that for good or ill cannot be said to be totally rare (as noted, historian/author Iris Chang recently killed herself; the elderly -- Hammerman was 76 so fit the term at least as to age -- have much higher rates than even depressed thirty year olds) put a particularly tragic flavor to the event, especially given the judge's popularity and sense of privacy.

The reasons appear to be related to fears that his body and mind was about to decline, a state of affairs that he could not bear to contemplate living. "The thought of Alzheimer's is dreadful to me. I would need institutionalization," he wrote. "There are happily certain people who care about me -- but none able to care for me."

And though his death would greatly affect certain people, he lists in particular his sister, some might say that his act is less "selfish" than those whose suicide would leave a family without a breadwinner. Ultimately, though his response to such judgments feels sound: "Some may say of me that it is an act of a coward," he wrote. "So be it. It is so easy for one outside the ring to tell the fighter how to fight his fight."*

The bloggist Mark Kleiman discussed suicide a few months back and his response to a reader seems to me to get at the core of the issue:

A reader points out that the distinction between considered and impulsive acts is at least partly misleading, since someone in the grip of depression or anxiety disorder may plan a suicide carefully over a long period. A suicide committed not on impulse, but with impaired decision-making capacity, can be just as tragic and just as preventable as an impulsive act. So the right distinction is between "well-considered" acts, planned over time with relatively unimpaired mental faculties, and "poorly-considered" acts done either rashly or under the burden of mental illness.

Or, as James Fleming discussed in an essay in Constitutional Stupidities, Constitutional Tragedies, ultimately the matter boils down to self-autonomy. Will we be "mere creatures of the state" or be led by our own moral choices? Questions of life and death such as these "are significant preconditions for persons' development and exercise of deliberative autonomy in making fundamental decisions affecting their destiny, identity, or way of life." The state might control the contours of such decision making in various ways, but ultimately, liberty includes making certain life and death decisions. And, such liberty should not be breached to promote some particular (out of many options) state sponsored view of life.

This is not to say that we must be aware of those who are not competent -- if the incompetent cannot get a marriage license, surely they in various cases cannot get state sanction to kill themselves. But, the contours and safeguards of basic liberties does not do away with the inner core that remains. Likewise, basic liberties does not do away with morality and values that can counsel us not to do various things at all or under sundry situations.

I'd argue though that tragic or not, Judge Hammerman acted in a quite moral way, one in which many of us might understand in various respects. And, in some sense, it is not tragic at all -- he lived and died as he desired, the limitations of our reality notwithstanding. This ultimately is my own moral belief, though one I think grows out of values accepted in some large part by society as a whole, but my ability so develop it (and act it out in various degrees) lies at the core of my freedom.

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* The article which inspired this discussed quoted a few sentences of the letter, which I also determined was extracted to a somewhat longer degree in a Baltimore paper. I have not read the extracts nor the letter as a whole, so surely do not fully know the motivations of this individual. The event, however, was reported upon largely for its large implications and lessons, and this is my intent here.

Condi Condi

It's Message, Stupid: In an article on tort reform, Anthony Sebok noted: "Edwards never spoke with any special eloquence about what trial lawyers do - nor of the moral purpose behind helping victims of professional and corporate wrongdoing secure compensation. He therefore failed to appeal, in this way, to those voters who cited 'moral values' as their key voting concern." Compare this to Four Trials, in which Sen. Edwards portrayed his profession (now and in the past) as a form of public service, protecting average Americans. On some level, it's just that basic. The same applies to those who ridiculed Sen. Edwards as an empty suit -- as we know by now, it's all in the tailoring.

Oh Condi Condi Can’t you hear me call
I’m standin’ in the street outside your garden wall
Pocketful of money belly full of wine
Condi in my heart and romance on my mind
Listen to me Condi don’t be afraid
I come here tonight to chase your blues away
I’ll never hurt you I’ll treat you right
Oh Condaleeza won’t you come out tonight

-- Condi, Condi by Steve Earle

The nomination of Condi Rice (Dr. Rice) to replace Colin Powell as Secretary of State seems to an appropriate choice: both are black, loyal, and willing to be made nullities. On the other hand, Dr. Rice's background (Eastern European/Soviet relations) and experience both in the Reagan Administration and as National Security Advisor suggests this libels Sec. Powell, who arguably was much more qualified for the position when he was nominated. Still, she has the conservative bona fides, loyalty to the cause (Bush), and a patina of moderation going for her.

And, there's always the idea (promoted by Dan Drezner, a conservative sort that supported Kerry) that her closeness to President Bush plus her increased power as a member of the Cabinet will allow her to have some real authority now. If this is naive or if such authority will be used toward good ends remains to be seen. Anyway, Dr. Rice turned fifty on Sunday, so perhaps this is ultimately her birthday present (Laura Bush had a birthday right after the election -- these women give bad names to Scorpios). Was Steve Earle's song Condi Condi sung at the party?

Anyway, Colin Powell's bona fides have long lost their veneer in my eyes, even if he has been of somewhat more value than some might think. Many still look at his departure sadly, seeing him as a good man that was lost in the lion's den. His captivity, if that is what it was, however, was ultimately of his own making. And, I do not buy the shit about him not wanting to leave because it would ruin his reputation. This implies that Powell still has much of one any more. I'm more inclined to think he thought it was his duty, his military background and all that, or many he convinced himself (rightly, probably) things would just be even worse without him around.

Loyalty is ultimately the name of the game now, including in the CIA where Porter Goss is doing just what one thought a political hack appointee would do. Surely, many of these picks have other qualities other than loyalty, but that is a (if not the) defining quality thus far. The net result is an administration "aiming at power, and power without responsibility [is] the prerogative of the harlot through the ages."

Prime Minister Stanley Baldwin was thinking of newspapers, but the sentiment fits here nicely too.

Taking "Religion" Out of Religious Freedom?

As an addendum to last time's comments, the problem of felony disenfranchisement should be included in any discussion of problems in the voting system. Also, the mention of the suffrage amendments led me to consider that some of them are a tad bit weak. For instance, an original draft of the Fifteenth Amendment was broad enough that it clearly covered many later ways used to deprive blacks of the right to vote. If many are so concerned about amending the Constitution to allow Arnold to run for president (heaven help us), an amendment clearly setting forth basic voting rights (and/or the obligation of the national government to set forth basic procedures) appears to me as important.

Trumping Religion: The New Christian Right, The Free Speech Clause, And The Courts by Steven P. Brown is an interesting short accout of a matter particularly important after an election in which moral values (and a government, including courts, that promote them) was an important focus. It focuses on the relatively recent movement (c. 1980) to use public policy, and the courts in particular, in a way familiar to liberal groups, but to generally promote quite different ends. [Dr. James Dobson, whose name has come up lately on the matter of moral values and the Republican victory, was a founding member of the Alliance Defense Fund, a key fundraising branch of this movement.] Finally, it discusses the importance of lower federal courts and strategies outside the courtroom.

They have had quite some success lately in the courts, largely by using the Free Speech Clause to protect religious activities (including school clubs, public displays, funding religious publications at colleges, and student led prayers). Though some of the votes were rather close, and sometimes they lost, many of their cases were nearly unanimous.

This suggests that not only is the movement a useful one to provide a full public debate, but their cause in particular is a worthy one. For instance, though allowing afterschool religious meetings on public school grounds right after regular classes ends for elementary students (upheld 6-3) seems to me a bit much, high school students should be allowed to have a religiously themed club if so desired. And, national legislation so dictates, along with various court decisions.

But, at some point we must remember that we are talking about religious activity here. A religious club or organization is not exactly the same as a secular one, and trying to say it is cheapens religion, and not only liberal atheists think so. The core point of being wary of mixing church and state is that it in some way harms religion, since in the long run only certain religious beliefs of our diverse nation are favored.

Our current policies do not tend to "establish" a certain religion per se, unless it is some vague watered down multicultural one that reflects "our" heritage by being somewhat more Judeo-Christian (emphasis on Christian) than not. All the same, it involves the state in areas it is better not being involved in. And, lest you forget, people like James Madison (strongly supported by the Baptists of the day) furthered such principles to protect religion.

So, yes, in some way the government can discriminate against religion by not supplying it with its largesse in many cases. The government has the right to promote many beliefs that an individual need not believe in, but not the right to promote a certain religion. The First Amendment singles out religion in this regard as do state constitutions as does the Fourteenth Amendment (to the degree it "incorporates" the First).

It is only by ignoring that "religion is different" that it suddenly becomes but another speech interest or equal protection category. This is not anti-God, but pro-religious freedom, and thus should be honored by the Christian Right and others. "Give unto Caesar what is Caesar's and unto God what is God's" should be a principle to their liking.

Such basic principles might be hard to put into practice in particular cases, but if "the wall between church and state" metaphor is of limited value without more, so is the idea that all the New Christian Right desire is for religion to be treated equally. For instance, a core concern behind the First Amendment is funding religious institutions to assist the the promotion of their faiths as compared to general secular benefits. So, let's put aside the overused "but do you want to deny them fire protection" line.

No, let's consider such things as using public funds toward scholarships for the education of ministers (state ban upheld) or college publications set up to spread the gospel (state ban struck down). Do those who want cry "discrimination" want their tithes to be spread around to all churches?

Or, how about the convoluted holiday display cases, that entangle church (sacred symbols) and state as long as the right amount of secular symbols are tossed in? If the symbols (like the religious speech discussed in the book) are only allowed because they are just one more cultural item among many, is this exactly a good thing? Does this benefit private religious belief?

Finally, we can note a matter soon to be back to the Supreme Court -- public display of the Ten Commandments. Putting aside the fact that there probably is some sort of contexts in which such a display is allowed, ignoring the sacred importance of the Decalogue as we try to argue that it is just another part of our history that should be honored is in some core way counterproductive to the ends of those defending it.

Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part.

-- Learned Hand

The First Amendment's protections are interconnected -- the free speech and assembly rights of religious groups are surely a major concern, even if this might seem to be redundant given the protection of free exercise of religion. But, not only does the Establishment Clause color such protections, focusing on one part in isolation is liable to get you in trouble.

And, this is ultimately the core difficulty with the New Christian Right's Free Speech and religious equality arguments, even if they have been quite successful up to a point (this includes the appointments of the such advocates as Michael McConnell and William Pryor to federal appellate courts). This is not to say that other groups do not have similar difficulties (the NCR's success in part arose out of the other side underemphasizing certain protections over others), which also ironically quite arguably results in them burdening the values they are promoting.

[Realistically, the "wink and nod" quality of their strategy cannot be totally ignored. So, yes, to some extent, many of those involved do not really believe that religious speech etc. is exactly the same as secular materials. And, they do not care. Thus, to the degree a religious display promotes a certain doctrine (and many feel theism vs. a particular sect is "neutral" enough in such cases), the advocates aren't crying in their coffee.

Also, I have long been of the mind that religious freedom is a broad matter, thus such things as the abortion debate are ultimately religious questions. Thus, value conservatives at times tend to selectively favor state support of disputed moral/religious (often the same thing) questions. And, in the process, dishonor religious freedom. Again, this is not really my concern at this time.]

Hopefully, a proper balance will be reached, one that requires both sides to be present to put forth their own points of view. And, as noted by the book as well, sometimes even join forces. Ultimately, after all, quite often our agreements are fundamentally superior in scope to our debates. Strange as this might seem to some these days!

Elections Must Be As Pure As Caesar's Wife

Football: Few years back, I went to a game in Baltimore in which the Jets went ahead by fourteen only to fall back, helped by their own recklessness. Well, I got to see it again without the long bus ride. The other debacle (Giants/Arizona), somewhat similar, I just saw the end of. Meanwhile, one reader might have saw Chicago win with a safety in OT. Clearly, the Bears made some kind of deal with the devil. Watch out, guys, payment might be due soon.

A lead editorial in the conservative Weekly Standard, published around the same time, lingered suspiciously on an automatic recount in Florida that narrowed Bush's lead, and concluded: "In our bones, we're pretty sure what happened here. In the middle of the night on Nov. 8, Democratic ultraloyalists - watched a fevered [Gore campaign chairman] Bill Daley announce that things were still close in Florida - and that his party's campaign would 'continue' until the rectification of unspecified 'irregularities' in that state made Al Gore president. The ultraloyalists read this hint for what it was. And next, they set about, fast as lightning, before anyone was watching, doing 'anything to win.' "

Conservatives might or might not be more paranoid than their opposite numbers, but the current atmosphere makes distrust of election results from certain groups among the losing side likely. As I noted last time, certain media sources (including the NYT), are writing about such people as if they are partisan sore losers who are selectively quoting the facts. I'm not sure if groups such as Common Cause or election officials in New Mexico are so easy to stereotype as "denizens of the Web" and other fellow travelers. And, yes, advocates for reform tend to focus on certain facts for effect. There is nothing unique about (election) reformers focusing on the bad, not the good.

The article in the NYT also is quite selective on discussing the problems at issue, including their citation of a (preliminary) study that only deals with a few issues. Their website also posts a report on the problems with voting in Georgia in 2000 (it suggests computerized voting machines improved things considerably in 2004), a year where doubts were raised as well. Are the naysayers willing to admit the doubters had a point then? This is not only about intentional fraud, though some critics act as if it was, admittedly because a few advocates make that suggestion.

But, put aside the usual heavyhanded rhetoric of a few, and ask yourself if this is so nuts:

While there have been many accounts of problems associated with the Ohio vote, from reports of 90,000 spoiled ballots, to software glitches resulting in more votes tallied than the number of registered voters, to new voters not being notified where their polling places were, to too few voting machines in Democratic strongholds, the only legal process that could immediately address some of these concerns is a recount. ...

There is a tremendous need for a plausible explanation of what actually happened on Election Day in Ohio. Kerry's Wednesday morning concession pre-emptied that explanation.

"Many people are saying, why bother to do this? The answer is we have not gathered all the facts," Arnebeck said. "Until you recount the votes, and look at the possibility of a sophisticated computer fix, you cannot draw conclusions.

Or, to quote some more of The Nation writer that I used last time:

The public does deserve any information that would allow it to evaluate vote-counting. Beyond that, extensive election reform is necessary. Electronic voting ought to produce a paper trail that can be examined. There should be national standards for voting systems and for verifying vote tallies. And vote counters should be nonpartisan public servants, not secretive corporations or party hacks. The system ought to be so solid that no one would have cause even to wonder whether an election has been stolen.

I know it is hard to get past partisan concerns, and as a comment on this blog suggested the matter clearly has partisan implications, but ultimately it boils down to the fundamental right to vote. A right that is at the heart of our democracy as suggested by the fact that seven amendments have something to do with voting, four in particular having special racial implications.*

As suggested by a local race in Florida that was decided by coin flip (a recount didn't break the tie), vote counts will always have some degree of controversy. Close elections and those that use new election procedures (provisional ballots) and technology (computerized voting) will only have more. Thus, there is an important bipartisan need to bend over backwards to ensure that the people trust elections. We doublecheck and have redundant protections in much less important areas. And, if the end result is clear (little doubt who won), there really should be that much more incentive for both sides to work together to do this. After all, what does the winners have to lose? Their legitimacy will only rise.

It is true that some realize their legitimacy is somewhat in doubt. But, there are enough that think otherwise, including those who are too sure that there are no problems or fear the cost, to hope that there is some chance people across the political spectrum will see the light. The issue at hand is just too important to let things continue in such a haphazard way, just waiting for the shit to truly hit the fan ... again.

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* The Fourteenth Amendment has a never used provision dealing with punishing those that deprive groups of the right to vote. The Fifteenth bars discrimination by race, the Seventeeth sets up direct election of senators, the Nineteenth bars discrimination by sex, the Twenty-Third allows those in D.C. (large minority population) to vote for President, the Twenty-Fourth bars poll taxes in federal elections (the Supreme Court barred it in state elections soon after), and the Twenty-Sixth set the minimum age to vote at eighteen. One might toss in the Twelfth, which re-arranged the Electoral College.

Excesses of Sore Winnership

RIP: Life is not always fair. Checking the news this morning, I discovered that Iris Chang, author of The Rape Of Nanking (a horrible, long hidden war crime) and a history of the Chinese in America, committed suicide. She was 36 years old and a mother of a two-year-old son. Seen by the public as a successful writer and lecturer, one passionate about her work that sometimes dealt with horrible topics, she clearly had a dark cloud in her life.

My first reaction was "shit," and now it's just "so sad." Anyway, sigh, I do recommend her books (the second one was a bit long, but good skim material for those who so desire), and hope her spirit lives on in others. As her agent says, Chang wrote in a note to her family that she should be remembered as the person she was before her bouts of depression: "engaged with life, committed to her causes, her writing and her family."

One party rule tends to bring a sore winner sentiment. This might be harder to see by how certain issues are framed, including by a media that tries to be balanced, and politicians who are in power because of their savvy. For instance, we are told that people in eleven states voted for ballot measures against gay marriage. Oh?

Eight of the 11 new state amendments address both gay marriage and civil unions. But several of those states require that ballot initiatives consider a single issue at a time. Amendments that bar both gay marriage and civil unions arguably run afoul of such requirements. ...

The [Ohio] amendment says the state "shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Another matter addressed by skeptical articles in Slate magazine and the NYT regards those who challenge the vote count. But, listen to The Nation:

Clear away the rhetoric, and what's mainly left are the odd early exit polls (which did show Kerry's lead in Ohio and Florida declining as Election Day went on and which ended up with the current national Bush-Kerry spread), troubling instances of bad electronic voting, and curious--or possibly curious--trends in Florida. This may be the beginning of a case; it is not a case in itself.

The basic concern of many more, including Rep. Holt, are problems with voting that leads to such doubts and rumors. For instance, the issue of no paper trail might not have mattered in the end result (the thousands of votes clearly lost at issue being notable but not enough to matter, except perhaps for a few races), except for those who now distrust (with some merit) government procedures a bit more.

Ditto in the disputed votes at issue in Ohio: enough to decide the election? dubious. Enough to worry about when the fundamental right to vote is at issue? Surely. Since the Republicans won their national majority*, wouldn't this be a really good time to carefully ensure that the votes were counted? Should they if anything, go out of their way to make this a bipartisan effort?

There is also the nomination of Alberto Gonzalez, which I discuss here and here. Should we expect and accept President Bush will appoint a conservative leaning sort friendly to him? Surely. But, there are limitations of what we should stand. Primary support of torture memoranda damned nationally and internationally seems to cross the line. As do other things in his record.

A final matter that might be mentioned regards the death of President Arafat, scorned by key members in the administration, the fact so many Palestinians thought so highly of him notwithstanding:

After the Palestinians' catastrophic defeat of 1948, when some 750,000 were expelled from their homeland and began living in destitution in refugee camps scattered across half a dozen countries, forgotten by the world, abused and cynically exploited by Arab despots and demagogues, it was Arafat who, along with a few comrades, gave birth to the Palestinian liberation movement.

As noted by article, surely some scorn is justified, though part of it arises from signing on to Oslo Accords that didn't give the Palestinians much in return at the end of the day. Also, his support of violence, corruption, and failure to set up clear leadership for the future. But, violence didn't quite stop us from supporting people in the pass. The opposition was just a tad bit particular.

Such line crossing can be used to the loyal opposition's benefit. Given this bunch's penchant at such a policy, we will have a lot to pick from. There is a difference between policies we do not like and just plain crossing the line. We must consistently remember and proclaim it when it occurs.

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* Not everywhere though. The Democrats won statewide in the Red State of Montana, using a basic strategy that other Dems should pay attention to:

in addition to a winning personality and strong populist convictions, Schweitzer had an innovative, three-part political strategy, one that perfectly fit the current conditions in Montana, but which Democrats across the country could learn from. First, Schweitzer took advantage of public dissatisfaction with two decades of insular one-party rule in the state capital, casting himself as an outsider and a reformer.

Second, he rallied small business, usually a solidly GOP constituency, to his side by opposing the deals Republicans had cut in Washington and Helena to favor large or out-of-state corporations over local entrepreneurs. Third, and most interesting of all, Schweitzer figured out how to win over one of the most important, reliably Republican, and symbolically significant groups of voters: hunters and fishermen.

West Wing etc.

Veterans Day: The last day of a bloody and tragically wasteful war (WWI) marks the day to honor those who serve our nation in a particularly special way. The way to truly honor these individuals, and all the sorts of things they have or continue to do (surely not just fighting battles), is not only to remember and praise their efforts. No, the true way to honor them is to protect and be highly concerned with their needs. The best way to do this is to make wars a matter of last resort, and when necessary, to be damn sure to carry them forth wisely and with deep consideration. It fills one with anger and despair when this is not done, be it out of ignorance, hubris, incompetence, or selfish self-interest. So, thank you veterans, and hopefully you will forgive us for our failure to truly honor you with our last full measure of devotion and due care.

West Wing: I did not like West Wing last year, including its apparent attempt to solve one major national problem an episode and the now tired idea that season finales should involve killing off some disposable supporting character (and/or injuring a less disposable one). The fact it started this season off with a continuation from the finale, including a solution to the Israel/Palestine problem, led me to boycott the show.

After being annoyed at another subpar episode of Gilmore Girls, its continual desire to apparently punish viewers by departing from the show's usual fun tone (the grandparents are particularly calculating lately, and it's on some level cruel to them), I decided to give the show a chance. And, for one episode at least, it was good that I did. Wednesday's episode of West Wing was one of the best ones I have seen in awhile. It did not try to do too much, but set up various storylines for the future. It had some major conflicts that it worked into its character dynamics and had some nice humorous touches.

I must say that having CJ take over the chief of state position felt a bit like the time when Dr. Crusher took over the helm on Star Trek: Next Generation, down to the height of the characters. Still, she is one of my favorite characters on the show (some of them are rather whiny and full of themselves), and the net effect of it all was for me to basically say "you go girl" as she struggled into the job. Jimmy Smits also looked good in his introductory scene, recalling the days when he was on NYPD Blue, and I still watched the show.

I'd like to have at least a few shows a week that I can enjoy, which has been a challenge lately. Hopefully, West Wing will retain the refreshness of this episode. Oh, Josh's haircut looks stupid, and Donna in a wheelchair is a striking image. I assume they covered a bit of that already, but how she is handling it surely could make some good asides (the coverage of the aftermath of the finale casualties generally was good, which is perhaps why they overused the theme). And, the scenes with CJ and Margaret were very good too. So, yeah, I liked the episode.

btw David Letterman was on Regis and Kelly recently, a major event given the rarity of his public appearances outside his show, even though those two are often on his show (Letterman greatly respects Regis, for instance using his appearance to announce his bypass operation). I would have liked to tape it, but my paper only mentioned it on the day of his appearance. Since I did not read the paper until after the show was over, I missed it. I also do not watch his show on a consistent basis, so might have missed him mentioning the date. Things like this are so annoying. It is the trivial stuff that will kill you, I'm telling ya.

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Baseball: As the final awards are given, talk is in the air about the next step for various clubs, including here in New York. The Mets started off well by choosing a GM and manager who promise to give new life to the team and allow fans to hope for good things to come. A primary job for these guys is to find a few key players, including a first baseman, as well as perhaps getting something for Mike Piazza. Piazza is on a downward slide, and his catching talents (if retained, he will likely go back to catching full time) leave a lot to be desired.

I do not like the rumors of getting Sammy Sosa, who is another older player on a downward slide, is expensive, and has a bad reputation as to his attitude. The suggestion of switching former Yankee Soriano for Reyes at short is interesting, though I'm not sure why Texas wants to give up someone who had a good first year for someone injury prone. Reyes is young, but Soriano is not particularly old, and has shown more resilience. Let's see also if they can regain the defensive abilities they had in the late '90s.

The Yanks just resigned their pitching coach and replace Willie Randolph (their old bench coach, now Mets manager) with former player Joe Giradi, which is a nice pick-up -- he always brought a steady presence to the team, and many say he has managing in his future. The Yanks have turned into the Braves -- fairly easily finishing first, but never going all the way, though they did get further a few times since 2000. One problem, though Lieber (who easily could have saved their bacon, if given a bit of help) deserves more credit than he is now getting (8mil is really not a lot of money for the guy, who now is healthy, and could give them a high win total), is pitching.

The true problem perhaps is coaching -- the team, unlike the Braves, cannot handle imperfect pitchers. The Braves' yearly acts of alchemy shows that you can go pretty far with fair pitching, if you handle it properly and have a few gems in the bunch. We saw how useful Tanyon Sturtze and even Loaiza was during the playoffs. The team was embarrassed because their bats didn't close the deal as much as the failure to have just one more arm in the bullpen, but the ability to make use of cheaper but still quite useful role players must be part of the Yankees' philosophy.

As the team seems to be destined to spend even more money, it might just be the case that what it truly needs is a full overhaul. The Red Sox winning the World Series sort of forces you to think that way, doesn't it?