Mets, Gore, and Bush v. Tic Tacs

Thought: I was considering the value of respect today. It is a useful quality to have, even if the other party disagrees with you, or believes you don't quite have what it takes. I don't respect those who lead the country ... certain moral failings aside, I did respect Clinton (and Bush 41, his political maneuvering aside). In particular, take the terrorist alerts -- they are a joke, though I do believe there are ongoing threats.

Still, how the threat alerts are handled makes people overly cynical. Ditto certain anti-terrorism moves like the Patriot Act or checks at airports. A bit of restraint, compromise, and good public relations (the equivalent of "you morons, stop being namby pansy losers, 9/11 happened!" isn't quite what I have in mind, John) might do wonders. Oh, and deep down, I do feel like this too, just w/o the experience to get to say it so well. We honor those lost, not quite everything that led to them to be lost. If we do, we are misguided fools.

Around a week ago, my local paper had at least three articles on how the Mets were on the rise (they got to .500 and showed life against some great pitchers), that they were showing some life, and giving fans hope. I guess sportswriters have to write something and complaints from Mets fans about the paper being so pro-Yankee had to be answered somehow. It wasn't really, honestly, realistic. I was going to whine, but the drop-off was consistent -- the team is consistent in its inconsistency. They won today too. Live for the moment, yes?

Over? What are you talking about? What kind of talk is that? It's un-American. Did George W. Bush quit even after losing the popular vote? No! Did he quit after losing millions of dollars of his father's money in failed oil companies? No! Did he quit after knocking that girl up? No! Did he quit after he got that DUI? No! Did he quit after he got busted for drunk and disorderly conduct at a football game? No! Did he quit...

- Peter Griffin (Family Guy -- back in production!)

Al Gore has been suggested as a possible Kerry running mate. As suggested here, I do not see it. I think some might be putting too much emphasis on some excellent speeches he has given, speeches that honestly appeal to only a certain demographic that Kerry really doesn't need to especially seek out. The core reason that Gore isn't a great choice, besides the fact I doubt he wants it, was suggested by a Bush supporter. Gore reeks of the past. Do we really want to focus again on Clinton, Election 2000, and all the rest?

Surely, these are themes that enliven certain important parts of the electorate, but they also turn off others, especially if it is overemphasized. There are also some who would be willing to vote Kerry, but who have a visceral dislike of Clinton. The net result doesn't appear to be much of a positive. So, sure, have Gore speak out -- we need a united effort with tons of voices with the eye on the prize -- but I don't see him as v.p.

By chance, I found out that if you input "Bush is incompetent" into the Google Search Engine, my blog pops up eleventh or so. The quirk occurs because one of my entries has that in the url. Likewise, there is a comparison of Bush and tic tacs out there. Guess who (or what) wins, even though white tic tacs weren't used?

Odds and Ends

As discussed by a participant here, a controversial memorandum by Prof. Yoo in support of the administration's policy on detainees has led to a protest that has garnered national attention. Over in Slate, it was called "shameful" (though as I discuss here, I don't exactly know why), but the article did suggest the administration's handling of the underlining issues warrants the appointment of a special counsel (the article is a bit convoluted). [Update: See, also The Interested Observor's piece, which also responds to the Slate article.] This discussion of Social Security is also worth a look (or two).

Have a nice long weekend all, but remember why you have it. [Link added, per a recent Washington Journal]

Manipulation, Clarke, and Pogo

At a White House morning briefing, Terry Moran of ABC News actually said what many thought during other conveniently timed alerts: "There is a disturbing possibility that you are manipulating the American public in order to get a message out."

- Paul Krugman (the editor took out the "duh" and "no fucking shit" )

Manipulation of the public, of course, is at the core of politics (as the grandfather in Boondocks recently said, he didn't want someone leading the country who couldn't lie), but this administration is particularly skilled at doing so. So, as is often the case with these people, it is a matter of degree. Richard Clarke, whose fifteen minutes of fame is apparently up (too many administration critics, too little time), is a good case in point.

Richard Clarke was appointed by President Clinton the first National Coordinator for Security, Infrastructure Protection, and Counterterrorism in May 1998 and continued in that position under George W. Bush. Until March 2003 he was a career member of the Senior Executive Service, having begun his federal service in 1972 in the Office of the Secretary of Defense, as analyst on nuclear weapons and European security issues. In the Reagan administration, Mr. Clarke was the Deputy Assistant Secretary of State for Intelligence. In the first Bush administration, he was the Assistant Secretary of State for Politico-Military Affairs.

[About the Author, book jacket of Against All Enemies]

Sounds like someone that can provide valid perspectives on dealing with terrorism, especially if his conclusions are backed up by other experts in the field, hmm? How about if we add, as Condi Rice did in passing in her public testimony to the 9/11 Commission (though many wouldn't know from press reports), that he was the crisis manager at the White House on the morning of 9/11? A registered Republican? Someone with a long term involvement, often in leadership roles, on the question of Al Qaida and other terrorist concerns? I'd think so.

This is not how things were "spun" and widely viewed (even by many of those not in Bush's pocket). He was portrayed as a disgruntled employee, one who was biased toward Clinton (who he apparently thought did nothing wrong), and as pretty much outside the loop. Let me tell you, I just started his book, and the "I was there" insider account of that morning suggests to me otherwise. Also, it has been noted that there seems to be quite a lot of "disgruntled employees" in the Bush Administration, especially as related to this overall issue. Finally, perhaps the negative comparison vis-a-vis Bush and Clinton is in place because it's accurate? Hey, it's possible.

Legal Fiction put forth a pessimistic view that President Bush's public manipulation skills will (at least as things are going now) lead to a second term. I think he's too pessimistic (it's closer than he implies, but if Bush wins, I will not be shocked), but his fears are legitimate, given how close things are, even when many think that it's patently obvious that this guy has to go. It is partly the fault of Sen. Kerry, since poll data shows that there is discontent there for the taking. [I do think it's too early to tell all the same.]

All the same, it's more than that. To paraphrase Pogo, I see the enemy, and it is us. As long as a sizable amount of the public, not just the totally clueless, eat this sort of stuff up, we will be in trouble. [Sen. John Edwards would partly be a good choice for vice president because of his ability to connect to the public and promote an alternative message.] To a certain degree, I fear, we want to be fooled. If so, Bush is the better one for the job.

Free Culture - Copyrights Amuck

Note: Scott Turow, who isn't crying any tears for Martha, wrote Reversible Errors, made into a television movie. I noted a few days ago that the first half was very good. The second half was disappointing, especially the last hour or so. Too bad. Good cast though.

The Constitution's Copyright Clause grants Congress the power to "promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings." Art. I, §8, cl. 8 (emphasis added). The statute before us, the 1998 Sonny Bono Copyright Term Extension Act, extends the term of most existing copyrights to 95 years and that of many new copyrights to 70 years after the author's death. The economic effect of this 20-year extension--the longest blanket extension since the Nation's founding--is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of "Science" --by which word the Framers meant learning or knowledge.

- Eldred v. Ashcroft (Justice Breyer, dissenting) [accord]

Free Culture: How Big Media Uses Technology And The Law To Lock Down Culture And Control Creativity might be a bit much for the layman who is not familiar with some of the issues discussed, but it examines an important matter, covering many of its complex areas, and does so in a fairly straightforward way. If you click the picture, you not only get various useful information (including direct links to much of the source material), but you can download the book. No matter how you access it, the issue of how copyrights are currently being used to restrain intellectual freedom and culture itself is an essential one to address. It underlines the heart of what makes this nation great -- free exchange of ideas, allowing the ability to build on past works, and "promote the progress of science [knowledge] and useful Arts."

Surely, someone who blogs and takes advantage of the new technologies such as the Internet and all it offers, should be concerned about this matter. In fact, Prof. Lessig (who argued, unsuccessfully, the Eldred case) notes that as early as Sept. 2002, it has been estimated that over sixty million people downloaded music. The problem with this is the fact that many used Napster and other illegal file sharing systems. It is to be noted that many used it to share unprotected works, sampling that promotes sales (arguably often "fair use" anyway), and to access material currently hard to obtain, especially if it is no long being commercially available (anything copyrighted after 1923 is likely still protected, but the financial value of much of it is very low).

Napster even argued it could block over 95% of the protected material by using various technical methods. No go. Let's not even discuss the fact the sharing went on partly because of overpriced music. We allow VCRs, even though they result in some illegal use, though an attempt was made to block them too. Now, a whole new industry opened up to take advantage of them. A wise course would be to learn a lesson from this. Accept and take advantage of new technology, have society and the government protect free culture as much as possible, and make reasonable adjustments to protect works when necessary. For instance, radio stations pay set (low) rates, and only to composers, not performers.

"Reasonable" is not a word I would use to describe the current law. Copyrights started out as a fourteen year term with one renewal (wherein you had to register each time; many didn't bother, fewer renewed). It now is life plus seventy years or ninety five years for corporations with registration not needed, making it quite hard to even sometimes find the owners of the rights to ask for permission. This is "limited?" The average copyright was around thirty years as recently as the early 1970s. Now, we have a situation where (quite arguably unconstitutionally, see Justice Stevens dissent in Eldred), where "limited" means that not only can you have a life plus fifty year term, but you can extend it twenty years. To quote Justice Breyer once more:

The Clause assumes an initial grant of monopoly, designed primarily to encourage creation, followed by termination of the monopoly grant in order to promote dissemination of already-created works. It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.

Oh, some might say, what about "fair use," which allows use without permission? Well, originally copyrights were limited to books, maps, and charts, and not "derivative works" (after all, we are dealing with "copy" rights). Now, we have a situation where a 1990s (long after the author died) attempt to write a book telling Lolita (published in the mid-1950s) through the eyes of the victim (arguably an original idea) requires the permission of the owner of the rights. Prof. Lessig showed the ridiculous lengths this is taken by noting a case where a small indie film would have to pay ten thousand to include a television in a shot that aired a few seconds of The Simpsons, even though is creator (but not Fox) was fine with it.

This is patently ridiculous. We are currently violating the words and spirit of the Copyright Clause, especially if we read it along with the First Amendment. Terms are no longer truly "limited." They do not only protect "authors," but mainly corporations (this along with media concentration is particularly troubling), or at the very most authors as well as their children, grandchildren, and probably great-grandchildren. And, "originality," fair use, and reasoned restraint (like not suing twelve year olds for downloading songs or forcing Girl Scout troops to ask permission to sing songs around campfires) is surely not truly honored.

Prof. Lessig wrote this book to deal with such problems and offer various solutions (though unfortunately in somewhat summarized form). It is a valiant effort to fight an evergrowing problem. Will the 21st century bring great innovation or will it lead to a "permission only" culture, since technology and media concentration will restrain innovation and be on guard against copyright "infringement" ever more exactly? [Thus, you can read e-books, but code can also limit how many times you can view, copy, or even listen to them (if audio software is available).] Time will tell.

OR Death with Dignity Act (and Federalism) Upheld

Various: Dahlia Lithwick discusses Justice O'Connor, and I get another chance to promote Laura Flanders book (and make a point!) here. My pro-homosexual marriage remarks here are misunderstood. Apparently, the person is not too familiar with my opinion on the issue, though the final sentence as well as the other post in the thread is pretty suggestive! Or is it just me? Sometimes, you talk pass someone without even knowing it. NYT had a good article on blogging here. Al Gore aka "No Better Than Bush" had some strong words to say [see also] against the President, didn't he? [Update: Slight edits; content same.]

A 1994 voter initiative, later reaffirmed, made Oregon the first state in the union to expressly allow physician assisted suicide in certain cases. Sen. Ashcroft asked the Reno Justice Department to challenge the law under the Controlled Substance Act, but she refused, arguing state discretion and the power of federalism in matters of medicine. Suggesting the power of the executive in an administrative state that gives it wide discretion, the Ashcroft Justice Department did challenge the law. Thus, a federal law that arguably is problematic even when used to deal with its clearly intended purpose - illegal drug use - was used to federalize medicine policy.

In a 2-1 opinion written by one of the conservative judges of the Ninth Circuit, Oregon v. Ashcroft, the Oregon law was upheld, largely on federalist grounds. The Court held that the attorney general misinterpreted the Controlled Substance Act, but in particular, the attempt to interfere with democratically formulated policy of state concern was problematic. As it noted: "The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the primary regulators of professional medical conduct."

The federal courts are an indirectly democratic institution. The judges are appointed and confirmed by those we elect, so in some sense reflect the political mentality of the electorate. This is clearly seen by the conservative (in various criminal or affirmative action cases, for instance) nature of many rules. And, the reason why courts now have more judges with such sentiments is that the electorate had them to such a degree that they elected presidents and senators with such views. This is why who we elect greatly influences not only foreign policy, tax policy, but also judicial policy.

To view the courts as purely conservative, as some commentators in somewhat excited tones suggest, is incomplete, however. Cases like this one, as well as those supporting the rights of homosexuals and a central core of abortion rights suggest a libertarian edge as well. This includes a fear of centralized power, which is an important underlining principle to the federalism cases. Such cases might try to stretch the words of the Constitution too much or belie a certain inconsistency, but critics of the current administration should be sympathetic to their sentiments. This case is a case in point. That inconsistency, however, causes cynicism:

Vikram Amar, a professor at Hastings College of the Law in San Francisco, said it is sometimes hard to divine the Justice Department's guiding philosophy in which state laws it decides to challenge.

"They haven't explained very well the distinctions they make," he said, "and that leaves them open to the charge of hypocrisy." [cite]

The courts are one check to such selectivity. The court here did not make policy, though it tried a few years ago to constitutionalize the right here protected by statute. In fact, it suggested a clear statement by Congress probably would justify Attorney General Ashcroft's actions. Putting this aside, the use of federalism (along with any number of other constitutional values) as a principle to restrain potentially open-ended legislation is a sound judicial practice.

It also promotes the state by state experimentalization that is best used to handle highly disputed matters of public policy that include various possible solutions. On the whole, it promotes freedom, which is best protected when the power of the state to limit it is carefully regulated. Thus, even if you are greatly opposed to this practice on policy or moral grounds, the decision itself might still be considered a sound one.

Daddy! Why must you be soooo negative?!

Extra: When I agree with Charles Krauthammer, I know something is worth thinking about. As suggested by Gregg Easterbrook today, a fifty cent gas tax is worth thinking about. Of course, the kneejerk reaction against any "tax," especially when it hits our apparently god-given right to have cheap gas for our SUVs makes it seem outrageous. Our overreliance on foreign oil is more so.

The writers did a good job [on the President's speech last night] ... The problem, as always, is that while the president's foreign policy sounds good -- make America safer by boldly spreading freedom throughout the world -- it's actual foreign policy is rather shabby and threadbare.

- Matthew Yglesias

Hell, I could give a good speech if I could just get up there and make shit up, linking Iraq to the war on terrorism without a second thought, using vague Jeffersonian platitudes.

- Legal Fiction [see also, his discussion today of the "how to get away with torture" memo controversy ... situational ethics strikes again!]

As I said before, it drives me nuts when some of the President's patently wrong or bullshit related speech material is deemed so wonderful. But, yes, on some simplistic level, the administration policy sounds good. It is noteworthy that this is enough for many, since sounding good is enough for them. The fact that it is all built on sand doesn't seem to matter to them -- don't they know their New Testament [Matt. 7:26]?

This includes intelligent souls who you'd think would want more than "well, at least I know what he believes," but sadly they do not. You might know what a five year old or a racist asshole believes too; it might be bloody simple. All the same, is this our standard now? It really is so sad. We need to face up to it, but it's so totally sad. We are left with people saying that Bush is the lesser of two evils.

This is the logic we have to face up to: it's as if your daughter wants to marry a con man, one who is a liar and a thief. You warn her about him: "but honey, he lies and steals!" She replies: "Daddy! Why must you be soooo negative?!" The father is left to realizing that even though the guy is a crook, suggesting that should be a major factor in the choice is almost counterproductive.

I know this from the experience of listening to the other side. They have this double standard in which they expect big things from Kerry (though I doubt many would vote for him anyway), but are satisfied with the lameness coming from the President. It might be a matter of cynicism - the danger of low expectations results in distrust of the other side, while not really expecting much from ours. Thus, a person feels (no matter how much evidence is supplied) attacks on their candidate amount to largely politics.

Finally, they note that things rarely are totally bad at any rate, thus having something to hang on to. I refer you to the suggestion that liberals should actually be quite glad with a lot of what the President did. Or those who still think Nader is the best way to go, given neither candidate really is that different.

The importance of the Potemkin facade of the administration cannot be underestimated. The skill of those who create and promote it is worthy of our respect, negative respect it might be. The fact that Karen Hughes was probably not on the side of the angels when she led the cause to allow George Bush to beat Gov. Ann Richards doesn't diminish her skills any. Skills that must be understood, countermanded, though hopefully not by using the exact same means.

Politics isn't always pretty, but it needn't be that ugly. At any rate, the shallowness, the facade must be revealed. We must not let snappy or even eloquent speeches wow us as if actions matched the words, even if the words sound good. There is art in the mastery shown by the other side, but it is akin to the black arts.

[I]t's actual ... policy is rather shabby and threadbare. Let's remember that, okay? Yes, yes, yes ... we need to provide an alternative, promote it better than currently is being shown, and so forth. The fact that your future son-in-law is a con art might not be enough, unless your daughter thinks she could do better, and doesn't think you just have a grudge against him. But, is not this fact still somewhat relevant? I think so, though sometimes I wonder.

Supreme Court Wrap-Up

Two criminal cases were handed down by the US Supreme Court today. NELSON v. CAMPBELL unanimously allowed a particular procedural method, even if it touches upon how a particular execution is carried forth. The vote suggests the narrowness of the ruling, involving a particularly gruesome method (allegedly unnecessary) to obtain an accessible vein to perform a lethal injection (in this case, long term drug use made the procedure difficult to carried out).

All the same, it is a minor victory (the Rehnquist Court has for a long time seriously reduced the avenues of appellate review in capital cases), and points out the inherently unsavory nature of the punishment, even when the most "humane" method is used. As Reversible Errors suggests, the defendants are often left to rely on such nuances of the appellate process. [On the other hand, final appeals in that movie took place seven years after the trial. The defendant here was convicted in 1977. I'm unclear the point of killing him now, but I guess that's not the issue.]

THORNTON v. US basically furthered the convoluted nature of current Fourth Amendment law. The case broadened an exception that allowed unwarranted searches of automobiles in order to protect police safety and possible destruction of evidence. This time, the defendant was in custody in the back of a police car, so the basis of such concerns were extremely weakened. Justice Scalia's concurrence (joined by Justice Ginsburg, while Justice O'Connor concurred separately to suggest it might be the way to go) noted but seven examples were supplied by the federal government to back up the proposed government safety interest. None were on point (three involved weapons on the defendant's person, three weapons seized from the police, and one in a nearby house).

This led Scalia to suggest the only logical reason to support the plurality's (with O'Connor, the ruling was in effect [4-1-2] - 2) expansion of precedent was to base it on pure evidence collection grounds. He did note that original intent and precedent as a whole can be read for and against such a reasoning. Given his jurisprudence, therefore, logically Justice Scalia might be willing to re-examine the precedents to clarify things. And, surprising as it might seem, some of his past opinions suggests he might support a more privacy geared rule, as long as it was clearly stated. If we toss in the two dissenters (Justice Stevens, joined with Souter), maybe Justice Thomas (Scalia's usual partner in crime), and Justice Breyer (probably game) who knows what will happen.

Justice Stevens in dissent noted that he was willing in the past to join a debatable weakening of privacy to formulate a clear rule as to automobile searches. Fourth Amendment rules are notoriously convoluted, resulting in both honest and dishonest breaches by the officers on the street as well as lower court judges. So, clarity is an important value. All the same, clarity was not really provided here, given a full majority really didn't accept the rule set forth today. Furthermore, clarity or no, basic principles must be followed. Fourth Amendment privacy applies to automobiles. The defendant was away from the vehicle, so the reasons for the exceptions didn't apply. If arrest allows broad search power just to investigate, what's the stopping point?

The rulings are discussed and can be accessed here (5/24)Update: I inputed case names now that .html links are available).

Popular Culture & Feminist Pulps

Various: Slate has a critical review of Freethinkers, which I reviewed here. I replied here. The importance of care during the war on terror is suggested here, concerning problems with "evidence" used to seize an American lawyer for involvement in the Madrid bombings. Why the Medicare bill was a virtual "how not to" pass legislation is discussed in this report. An interesting discussion by Virginia Postrel of the "marriage penalty" and its application to gay marriage can be found here.

Disturbingly (for those of us guiltily enjoying the bloody payback), it suggests that what happened to Jennifer took away not her sanity but her humanity, leaving a calloused spot where her soul once was. ... The filmmaking is circa 1910, with silent-movie acting to match. I Spit on Your Grave makes people angry, disturbed, depressed (Ebert's word). Of course it does. The camera just stares, refusing to editorialize or to put a stylistic barrier between you and the cruelty. You are there, and you're not doing anything to stop it.

-- Review of I Spit On Your Grave, 1970s exploitation flick

A history professor once noted that pornographic (including various comments on lack of sexual prowess) underground comics and graffiti often was the most productive way to criticize the French royalty. This is just one example in which popular culture turns out to be a valuable commentary on social relations. For instance, though Scott Turow took part in and wrote a valuable book concerning a special commission set up in Illinois to examine capital punishment in that state, arguably his novels (including Reversible Errors, now a very good television movie, which concludes on Tuesday) were even more valuable. In fact, for good or ill, society arguably "learns" more about itself from fictional sources than nonfictional ones.

The value of certain sorts of popular culture surely is debatable, even if we accept their importance. I Spit On Your Grave, for instance, is one of the more controversial members of the exploitation genre that is often viewed as guilty pleasures. Likewise, the fact that gratuitous nudity in horror films grows out of their reflection of social norms about gender norms doesn't mean they send positive messages any more than the violence in Dirty Harry movies. All the same, popular sitcoms often examine important issues, even if the sitcoms themselves might be pretty trivial on various grounds. And, a look at the comics page of your local newspaper is sometimes more striking than the front pages, and not just Doonesbury.

The value of certain popular fiction genre is better accepted than others, and pulp novels (along with film noir) have for some time been of this character. During their heyday during the middle third of the 20th Century, pulps were seen as striking examinations of the social struggles of times, even as mainstream films and novels portrayed times of normalcy. The works examined the underside of society, the violence, sex, gender struggles, and so forth that was uncomfortably barely under the surface. The quasi-underground nature of the pulps also allowed them to examine material too controversial for mainstream literature. All the same, such works are generally seen as masculine, such as Chandler or Humphrey Bogart.

Feminist Press suggests differently with the re-release of a few works from the genre written by female authors (often, pulps -- so named because of the cheap paper they were written on -- were released under pseudonyms, so the sex of the author wasn't always clear). As explained by the interesting commentary supplied (each novel has an introduction from the publishers and an afterword commenting on the individual work), surely many pulps weren't great feminist works. They often followed stock themes that were if anything the opposite. FP in its "feminist pulp" series shows that many did provide strikingly modern examinations of the culture of the day.

The first three pulps in the series (more to come) include examinations of: working women torn between career and marriage (Skyscraper, written right after the Empire State Building was built; I have not yet read this book), dangerous men (In A Lonely Place, which inspired the Humphrey Bogart film, though the two are different in a key way), and young women moving to the big city (The Girls In 3-B). The final book examines the underside of the beat culture, provides a positive if 1950s style look at lesbianism,* and the underside of office romances as it describes what happens when three young women move to Chicago.

I found 3-B a well written, striking commentary of the times ... a good example of how fiction is a valuable way to get a taste of an era. In A Lonely Place was a bit lacking in way of plot, but quite interesting as a psychological look of a serial killer through his own eyes. The fact it was written by a woman and before modern day crime fiction made such a technique a typical one is particularly noteworthy. It too is a useful way to get a taste of its times, here post-WWII California, and the strong female characters adds value to the work.

Pulp and film noir is enjoyable on its own, but this series provides a useful perspective that provides an additional layer of meaning. A discussion of the series as well as a taste of its prose can be found here.

---

* Topics such as lesbianism, interracial love, and other "forbidden" plots often were covered in pulp fiction, though usually as precautionary tales. The documentary Forbidden Love (1992) examines this issue, adding a "happy ending" that 3-B suggests actually was provided by a few select pulps of the day.

Control Room

Control Room is a documentary that views the second Gulf War through the eyes of Al-Jazeera ("the Peninsula"), the popular Arab news channel, viewed by over forty million residents of the region. Though recently seen by many as propaganda, the network actually was once highly praised by many in this country for its independence. Sponsored by the leader of Qatar, a Gulf State that is our HQ in the region, it was disfavored by various Arab states for daring to air criticism and other information that did not please the leadership.

It also was quite willing to allow Western voices on to say their piece. Many of its staff and reporters came over from BBC. A comparison by a US military press spokesman to Fox News might be a quite sound one (though some might not think it high praise), both having their own biases, depending on the audience. Things were a bit different once it aired videos released by Bin Laden as well as critical views and images of the war. Again, as the press spokesman noted, they might have shown pictures of captured and slain coalition soldiers, but did the same with local dead. The coverage was not neutral, but one questions if ours was either. It surely isn't plain propaganda. Its role as a legitimate news organization was best seen by the Western press' reaction when Al-Jazeera reporters were killed by our guns.

The charm of this movie is that though it clearly airs things through the point of view of Al-Jazeera, including an executive producer and top reporter, it tells both sides. The other side is best shown by a U.S. media spokesman, who is loyal to our war aims, upset at the biases of Al-Jazeera, but aware that we too slant things as well.

It is challenging, though perhaps not as much when you opposed the war [when Rumsfeld spoke about the network promoting lies and the President spoke about good treatment of prisoners, the audience had to laugh], to understand things from the other perspective. For instance, to see how struck a woman reporter was when Baghdad fell -- everyone was like, where is the Republican Guard? How did that happen? The hatred spouted by a young boy also was striking as was hearing from a rebel leader. Imagine if we got to hear from an Iraqi fighter, which even "liberal" radio is unlikely to touch!

The director of this excellent documentary also was behind the well received Startup.com, concerning the rise and fall of a dot.com. A young rising star, Jehane Noujaim is a voice to look for in the future. It is currently playing in the Film Forum in lower Manhattan, and you can find out about screenings near you here.

Bush The Liberal?

Another Volokh Conspiracy post. Eugene Volokh discusses how social factors help explain why homosexual marriage probably won't lead us on a slippery slope to polygamy. Randy Barnett looks back a few hundred years for support toward gun rights and judicial review. See also, here. David Bernstein's criticism of "Bush does nothing right" liberals bears an in depth discussion.

David Bernstein takes liberals to task for not accepting that President Bush supported "objectively liberal programs," in part comparing such slanted criticism to that suffered by President Clinton. He has a point (Bush and Clinton ironically are alike in many ways, including their selective use of language. Also, overcriticism is counterproductive, as the Right learnt a few years back. These guys are bad, but they are not the anti-Christ.) though Bernstein is a bit selective, since some have been more balanced in their criticism. I emailed him to compliment the valid point, one that follows my "balanced attack" principle, but to explain in various ways liberals have a reason to be skeptical.

He briefly responded by suggesting liberals are basically concerned about the administration's insincerity, but as a cynical libertarian, he doesn't think many politicians are sincere. I think it's more than that, but I noted that as a cynic, he should be sympathetic to those who are wary about opponents who are insincere. Laura Flanders would suggest a difference in tone should not blind us to a sameness in what they are trying to promote. The same would apply to tossing some bones to the center to cloud the rest of their intentions. Is the President "trying to govern from the center while placating their parties' base?"

Some obvious examples that come to mind are (1) the new Medicare drug entitlement; (2) the massive increase in federal education spending; (3) increased funding (proposed) for the National Endowment for the Arts; (4) the general huge increase in discretionary federal spending, including spending on infrastructure projects (what Bill Clinton called "investment"); (5) close attention to affirmative action concerns in executive appointments.

Advocates focus on the negatives of the other side and are loathe to trust those they generally dislike. Many of his programs, a penchant for secrecy, heavyhanded treatment of opponents, and certain character aspects legitimately concern Democrats. They also make one question about the President's alleged Clintonian attempt to govern from the center. All the same, how about the individual examples supplied? Flanders in particular would particularly be cynical about the fifth one. The administration selectively highlights particular traits of their picks, but opposes affirmative action per se, and criticizes Democrats who focus on traits over merit. Are we to praise their hypocrisy?

Prof. Bernstein attacks criticism of the Medicare bill as hypocritical, coming from free spending liberals. It might be imperfect, but it is after all an entitlement bill. He has a point, but the opposition of the other side surely is not too cynical, is it? Actually, it is a backhanded compliment because traditionally liberals know those on the Right served as a valuable fiscal conservative check. Now, they suddenly are free spending, and mainly for political reasons, which threatens the future solvency of social spending as a whole. This joins quite well with their questionable tax policies.

Opponents of the No Child Left Behind law are not just new converts to the concept of "unfunded mandates," nor are the critics truly selective in their criticism of federal laws of this sort. Liberals have criticized Democrats as well for not properly supporting the money and effort needed to fully honor social welfare programs. Also, Bernstein slyly ignores that the law is opposed by educators on the ground as well. Finally, criticism is focused in part on alleged broken promises the President made as to funding. Libs also are somewhat upset at his fraudulent "Texas Education Miracle" rhetoric. So, no, his educational "reforms" doesn't impress much.

As to spending as a whole, the fact the administration isn't as bad as some suggest really doesn't prove too much. It is somewhat akin to those who aren't too impressed that the President didn't bend back various environmental laws as much as he could have. Finally, let's ignore the (proposed) aspect of the NEA funding. There are any number of other things people are concerned about these days, so this seems a bit trivial to me. Still, okay, his NEA appointee appears to be a good one, and so forth. All the same, the administration's anti-porn efforts, covering up the breasts of the statue, and selective support of religious doctrine [traditionally, this is a threat to artistic freedom] are but three ways that suggest he is no "NEA President." So, again, I am not impressed too much.

Prof. Bernstein also suggested liberals are mainly concerned with motivation, which was ironic to me, given many are quite concerned with discriminatory effects. Those on the other side blame them for this, saying the result is innocent actors are attacked. Liberals apparently can't win. He talks about "Democratic propaganda," but he might not be totally free of such slanted arguments either.

As someone who tries not to fit in any single cubbyhole, criticism is useful. Is not skepticism and nuance, which includes criticism from all sides, good things, after all? And, yes, Republicans in DC these days strategically and in some cases ideologically are in various cases more moderate than some give them credit for. So, I welcome this sort of questioning, but on some level it also too often seems a bit biased and too cute. But, then, we all are to some extent. So, hopefully, the end result will be a healthy medium. And, a Kerry Administration.*

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* Sen. Kerry was wise to meet with Nader, say that he is not asking him to drop out, but that a Kerry candidacy is the best way to defeat the President. Salving Nader's ego is probably a good idea, and ultimately many swing voters want to know why they should support Kerry, not why they should not vote Bush or Nader. Also, I repeat my sentiment that (cynical) libertarians like the good professor should understand this administration is far from truly supportive of true libertarian principles.

Bushwomen: Tales of a Cynical Species

Thanks to news accounts that emphasize personality over politics, the female members of Bush's inner circle work well as identity-politics puppets; a kind of PC protection device, they provide superficial cover while the Administration pursues policies that take a disproportionate toll on the lives of women and people of color. The Bushwomen do for Bush's image what "pro-life" language did for the Republican Party's rhetoric. ...

Who better to reassure an anxious nation than these women, whom most Americans know almost nothing about--thanks to the shallow coverage provided by a stereotype-sodden media?

- Laura Flanders

This hard hitting book was written by progressive radio host and journalist Laura Flanders (Air America, weekends, 7-10pm EST), and her listeners will recognize her telltale voice on each page. I quoted from her column on the subject; let's take a key quote from her chapter on Karen Hughes:

Her candidate rose to power not on the basis of his legislative record, ideas or integrity, but thanks to skillful message-control, which was her department. Ironically, as communication director, what Hughes did best was not communicate.

Voters in Texas were fed a fake Bush ("successful businessman"), and a disingenuous platform ("compassionate conservative"). The nation was then fed the same, with the addition, "successful Governor of Texas."

Flanders covers Condoleeza Rice, Karen Hughes, Ann Veneman, Elaine Chao, Christine Todd Whitman, Gale Norton Norton, and various others (including the first and second ladies, the latter with her lesbian friendly novel and all). There are a ton of anti-Bush books out there, but this is one of the better ones that focuses on "Bushwomen," but covers a lot of progressive ground ala Molly Ivins in the process.

Laura Flanders is a voice to reckon with. Here's some strong words from an anti-war speech made on 9/10/02:

But by day's end our a.w.o.l. President took center stage. He instructed us to pray.

A few days later, to pray became an order to shut up -- "You're either with us or you're with the terrorists," we were told, and finally, but very quickly, the order was for war.

After that, you don't need me to recount the media obedience stories. Suffice to say the most powerful journalists gulped down unchallenged, a whole new vocabulary - I called it a Warnacular. ...

As my dearly beloved friend June Jordan wrote last year: Some of Us Did Not Die ... Some of us are still here, and we have obligations not because we're vulnerable but because we're so darn strong. And we better get deadly serious about that strength, and our responsibilities and our choices. Right now. Whether we show up in the media or not.

Yes. As I said before, everything did not change. Voices like Flanders helps us remember the important principles that staid the same, how many try to violate them, while keeping us informed about the issues. No matter how much some want to tell us differently.

McVoting

A Slate article today notes that though it had many critics, there was something fun about the California Recall election. It bypasses the two ballot initiatives that got short shrift, the controversy over electoral procedures (certain machines were later rejected by the state given technical problems), and so forth, but it has a point. The recall increased turnout, something that all too often is rather low, especially for races that are not statewide or for the presidency. All of these matters point to the serious problems present each Election Day, problems that in some key ways interferes with the carrying out of our basic act as citizens, voting.

Many possible solutions have been suggested to deal with these problems. My suggestion would be to examine this as a sales problem. As one ad campaign suggests, "the educated consumer is the best customer." Why not view voters as customer, who must be educated and encouraged to "buy" a certain product, namely voting? A lot of time and effort is put forth to encourage people to spend their money on overpriced coffee, overprocessed fast food, and often inferior amusements. Why not put this time, effort, and design savvy to encourage and assist the voter? Why not make voting as easy as getting a coffee and a muffin? In fact, it wouldn't be that bad of an idea to offer such items at every polling place. For instance, the Hartsdale, NY polling location is actually a Starbucks, conveniently located at the Metro North spot. Voting, breakfast, and transportation all at one place. Think of it as "McVoting" without the excess fat.

This is not as strange of an idea as it sounds. For instance, I have noticed that post offices are must more customer friendly places than they once were. The clerks are encouraged to be polite, helpful, and (like in a fast food restaurant) encourage further purchase ("do you want stamps with that?"). There is self-service (postage machine), individuals to guide traffic, and at times even a scale to weigh packages. It is clearly a response to the growing competition from private package transportation companies. The competition to voting might be less obvious, but the small size of the voting public each Election Day suggests it is as powerful. The specter of a small minority of the population determining our leaders should be concern enough. There also can be competition of voting machines, all of which do not fit the needs of a particular community, and diversity would limit the problems the do arise because all of our eggs would not be in one basket. And, we can have a quick and efficient process, helped by snappy advertising campaigns and customer service lines.

The article also speaks about using pulpits, schools, and even special voting lotteries. Churches are already are major source of voting education, across party lines (remember Dr. Martin Luther King Jr. was a minister; the Christian Right also uses churches quite effectively). Schools also are an important resource, especially after the Twenty Sixth Amendment gave the vote to eighteen year olds. Why not tie registration directly to a high school civics class with those who successful pass might be able to vote in local elections even before they are eighteen? Colleges and other civic organizations should remind people of the issues that especially affects them. Registration information should be at major locales, including malls, along with information on issues that affect the communities.

Voting is a lot more important that most things that consumers purchase everyday, but similar techniques can be used to promote them all. There is no reason why we cannot make voting more fun and interesting given what is involved and is at stake. In fact, we must.

Correction

My philosophy has been to take things with a grain of salt because all too often there is something some "expert" or other source says that I know to be untrue, unlikely, or misleading. Another principle of mine is that things tend to be complicated, so one particular "fact" is not as important as the complete story. Current political events seems to follow this precept - I try to go with the truth as a whole, not the meaning of a particular fact. This is useful because everything isn't tied up with a bow, plus it allows you to accept something as a given, and not turn back from your argument.

All of this is a prologue to a correction that I want to make up front, though I already corrected the individual post. Thanks as well to the person who pointed it out to me in a comment. In an essay on the dangers of too much executive discretion, I threw (honestly - my draft did not include the wording) in that "the internal army report notes sixty percent of the [Abu Ghraib] detainees appear to be innocent." This came indirectly from Seymour Hersh's piece, which said in part:

"The Taguba study noted that more than sixty per cent of the civilian inmates at Abu Ghraib were deemed not to be a threat to society, which should have enabled them to be released. Karpinski’s defense, Taguba said, was that her superior officers 'routinely' rejected her recommendations regarding the release of such prisoners."

First off, "innocent" (as some reports interpret these words, including critics) and "deemed not to be a threat to society" are not the same thing. Also, as noted here, it appears Hersh confused what the report actually said.

To directly quote the report:

The screening, processing, and release of detainees who should not be in custody takes too long and contributes to the overcrowding and unrest in the detention facilities. There are currently three separate release mechanisms in the theater-wide internment operations. First, the apprehending unit can release a detainee if there is a determination that their continued detention is not warranted. Secondly, a criminal detainee can be released after it has been determined that the detainee has no intelligence value, and that their release would not be detrimental to society. BG Karpinski had signature authority to release detainees in this second category. Lastly, detainees accused of committing "Crimes Against the Coalition," who are held throughout the separate facilities in the CJTF-7 AOR, can be released upon a determination that they are of no intelligence value and no longer pose a significant threat to Coalition Forces. ... According to BG Karpinski, this category of detainee makes up more than 60% of the total detainee population, and is the fastest growing category. However, MG Fast, according to BG Karpinski, routinely denied the board’s recommendations to release detainees in this category who were no longer deemed a threat and clearly met the requirements for release.

The report speaks of a general category of detainees accused of crimes against the coalition, and this is where the sixty percent number comes in. In fact, the two other categories of detainees were described thusly:

First, the apprehending unit can release a detainee if there is a determination that their continued detention is not warranted. Secondly, a criminal detainee can be released after it has been determined that the detainee has no intelligence value, and that their release would not be detrimental to society.

The wording in regards to the third category is a bit confusing, but these other two categories as well as said wording clarifies things. The report speaks of those "in this category," i.e. the sixty percent, "who were no longer deemed at threat." So we are talking about an unclear subset, not the sixty percent figure as a whole. All the same, a correction of the 60 percent factoid does not change the fact of the abuse, the dangers of too much discretion, the fact such discretion was encouraged, some sizable number of individuals wrongly held, and so forth. In fact, the Red Cross report said in part: "between 70 percent and 90 percent of the persons deprived of their liberty in Iraq had been arrested by mistake. They also attributed the brutality of some arrests to the lack of proper supervision of battle group units."

This allows me to not feel so bady about saying "mea culpa." All the same, "innocent" is the sort of thing that is picked up and tossed around, causing the core truth of the story to be ignored. For that, I am sorry.

The Underutilized Promise Of Television

Television is one of the most demonized media of them all, but I personally think it gets somewhat of a bad rap. Some think of it as the "idiot box," the "boob tube," and a way to spend some empty hours, while poisoning or deadening your mind (especially if you happen to be a child). Nonetheless, television has a lot to offer at a relatively low price (basic cable, for instance, is relatively reasonable given all the channels you receive), as seen by educational programming, sports coverage, news, and various quality television shows.

This is not to say that television, especially with all the channels out there, meets its full potential. For instance, we have tons of copycat daytime "talk shows" that often have the basic goal of finding new societal rejects under rocks or wherever they find them. News programs, including the recent multiplication of newsmagazines do not offer that much more. Furthermore, even with a wide range of topics and themes to select from, television shows usually cover the same old stuff.

This seems to have reached a certain critical mass of late to the point that only a handful of shows are really worth my time (not that valuable, believe me). Oh, there are a lot of shows: lame comedies, seedy or shameless reality programs, tired veterans (sadly, West Wing seems to be entering this category), repetitive forensic programs, and a few worthwhile shows that aren't my cup of tea. Watching "trash" has its pleasures, but the situation really has just got worse. A look at the proposed 2004-5 season does not look too promising.

There are various ways of dealing with this problem. First, we can run with it, given there are so many more productive (or as productive) uses of the time. Second, there is the Internet, so we can stare at an even smaller screen. Next, there does remain various things to watch.* We also can just watch crap. Flip through all the channels, including lame movie options, and think, "come on, there must be something on!" Rent videos and DVDs, the latter often having special features to fill the time not spent watching television. And, finally, we can whine about it. So, nothing to get too upset about.

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* Gilmore Girls had a pretty good fourth season overall. The season finale ended with Rory no longer quite such a "good girl," and honestly, it's about time she did something "bad." I don't really like how her first time was done in such soap opera fashion. The show in fact has a bit of a problem on this front. Her friend/rival Paris had a "good" first time with a boy she liked, but later she publicly blurted out the information, leading to her embarrassment. Meanwhile, Rory was there to comfort her, while Lorelai was happy she had the "good" one. And, of course, the show itself is based on the results of a teenage pregnancy. The show did at times examine how Lorelai's relationship problems have deep roots, but the Paris episode is remains particularly troubling - the episode was a pretty nasty one.

Brown Again

As Story wrote about the Titles of Nobility Clause,

"As a perfect equality is the basis of all our institutions, state and national, the prohibition against the creation of any titles of nobility seems proper, if not indispensable, to keep perpetually alive a just sense of this important truth. Distinctions between citizens, in regard to rank, would soon lay the foundation of odious claims and privileges, and silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government."

It seems to me quite reasonable to interpret the guarantee of "equal protection of the laws" — with the help both of common sense and psychological research — as recognizing the similarly harmful effects of "[d]istinctions between citizens, in regard to [race]."

- Eugene Volokh

Eugene Volokh's comments should be read in their entirety, including his debate with a conservative critic of the decision. I particularly like his use, not just limited to him but underutilized all the same, of the Titles of Nobility Clause, which is but one way the equality principle was protected long before the Equal Protection Clause. Also, I forgot to mention that 5/17 was the one year anniversary of my blog. It has been fun; one of these days, I shall find a good "look." Note also the "Recent Books" section that was added, which shall be periodically updated.

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Also ... The prison at Abu Ghraib has been renamed "Camp Redemption." The quasi-religious and/or re-education connotations of this troubles me. Talking about troubling, some of my usual supporters surely don't like my stance on the ban on smoking in city eateries and so forth. It led to a good discussion, however, and suggests the benefits of talking about more than the "same old thing." As you might note, recently I did try to talk about more than the usual topical political stuff.

Odds and Ends

A few days earlier, while traveling to Marco Island, Fla., on official business, Commerce Secretary Donald L. Evans stopped in Daytona Beach to attend a large prayer meeting, where he praised Mr. Bush as "a leader you can trust 100 percent of the time." ...

The combination of official business and politics is neither illegal nor unusual in an election year, though Bush administration officials were reluctant to provide details. In fact, the Bush administration is using techniques refined by President Bill Clinton. The difference is that in the Clinton years the White House was often trying to add and expand domestic programs, not cut them.

- President Bush Takes Credit For Stuff He Cut or Opposed; the article also sounds a tad bit cynical. See also, here (thanks to Legal Fiction).

The Defense Department announced the creation of a new administrative system today which will periodically review the status of detainees being held at Guantanamo bay to see if they merit further detention in America's war on terrorism.

- Not So Sure About That Supreme Court Victory?

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Also: Talkleft cites a powerful dissent by Judge Alex Kozinski on the importance of grand jury discretion. Well worth reading; it's short and well written. Also, the Bush Administration agreed not to make any more judicial recess appointments to supersede Democratic filibusters, thus the Dems called off filibusters on noncontroversial nominees. This is appealing, both as an example of how things should be done anyhow (Carter and Clinton combined had as many recess appointments of this sort than Bush did), and what happens when the Dems show backbone. It's a small victory, but a good one.

How about those Mets? Another come from behind victory! Congrats to Randy Johnson. Last year, the Yanks were no-hit by the Astros; now the Braves (though doing poorly) were victims of a perfect game.

A Fine Whine

"Sir, would you like some pasta with your whine? A linguini in a fine red sauce would go nicely."

To go into Andy Rooney mode, don't you hate it when you go out to eat at a nice restaurant, and the service is subpar (or as my mom eloquently put it "stunk")? I might have to face up to the fact my standards are too high, but it does seem that it is so hard to find a good place to eat these days. There are a few places where I consistently find things comfortable -- nothing spectacular, but a nice eating experience.

I have enjoyed going out to eat, and perhaps following it up with a movie [a food porn like Mostly Martha is a good choice], ever since I was a teen and the family made a habit of doing it once a week or so. Though take out is sometimes fine, I'm not a big fan of fast food -- I like to be served and one can od on plastic. In particular, it’s amazing how little you often get for your money at a burger places as compared to pizza, Chinese, and so forth. I must admit that in my younger days, I did like White Castle. [A friend of the family met her husband while working there -- the marriage didn't turn out great, however.] This was, of course, pre-vegetarian mode.

And then, we have places like I took my mom for Mother's Day. Various pet peeves: slow service (including drinks and dessert), small portions (a pint of flavored rice at a Chinese places is a few bucks ... my $20 dinner entrée came with a scoop), and (why is this?) not bringing coffee and dessert* at the same freakening time (even when asked to). Not quite like the time when they forgot my credit card and accused me of not giving it to them, but overall annoying. I must admit though the fact we only got three rolls wasn't a top problem for me, though my mom apparently focused on this. A few members of my family are big on bread, you see. Bread is good, it is true.

The way to go, I have recently found, is to send letters (or emails) of complaint. Many places have websites with means of correspondence [a local Chinese fast food place even has one!]. Two places over the last year have actually sent gift certificates. Not that I'm actually going back to these places, but it is a sort of justice, and others can get the benefits. Complaints while this sort of service occurs also might work, though it's not really in my nature to do that. I respect such restitution, though am annoyed at its necessity. It is another example how hard it sometimes is to enjoy what should be one of the relatively simple pleasures in life.

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* I find dessert is generally the safest part of the meal -- even if the main course leaves something to be desired, the dessert and coffee is tasty. A favorite is chocolate layer cake, which led me to be upset when I went out some time ago with co-workers, and they did not have any! The meal was fine though, and I wasn't even paying, so it was forgivable.

Smoking Ban - Unhealthy Effects

NYC joined the ongoing movement against smoking in public places last year, banning the practice in most restaurants, stadiums, and other locations. Likewise, it increase cigarette taxes considerably, a rise of over a dollar. A recent report suggests that smoking has dropping an apparently significant eleven percent, though the numbers suggest causal smokers were the ones particularly affected. I would add that smuggling is up as well.

Still, let's say the net result of such efforts are "positive" in nature, and the numbers are fairly accurate. Are they legitimate? The taxes might be, though there is a point where there is diminishing returns, and they are rather regressive in nature. The ban still is illegitimate -- personal freedom, including freedom to harm oneself in various ways, is being violated. We are not just dealing with unconsenting adults or children here. The nanny state we might become if health alone is a valid reason to limit our freedoms is apparent. Note well that drinking dropped during the Prohibition as well. And, when ordinary citizens feel like criminals, the rule of law itself is threatened.

Excessive taxation does in some cases help organized crime. Perhaps, the ways we fight organized crime can be applied in the fight against terror? An interesting thought suggested here by another conservative. The person has made his share of statements that I found offensive and/or disagreed with, but has shown he is not totally kneejerk either, and sometimes is a member of the "conservatives who see how the administration crossed the line" brigade. If this happens too much, you know the group is particularly in trouble.

ex pluribus unum - A Good Day for Equality

Putting aside legitimate concerns on how exactly it came about, 5/17/04 is a wonderful day in Massachusetts in that same sex couples will be able to be married. The day is a quite fitting one as a promotion of the principle of equality because fifty years ago the Supreme Court struck down segregation in public schools. To cite a worthwhile volume, What Brown v. Board of Education Should Have Said (edited by Jack Balkin), and/or how it should have been carried out is a matter of much debate. The value of a judicial decision of this sort is a matter of legitimate debate. The fact it was a decision of great importance is (or should be) a subject of much less debate. [more]

The symbolism in the fact that same sex marriages are now officially legal in Massachusetts fifty years after the ruling of Brown v. Bd. Of Education was handed down is not just being used by me. All the same, along with an great book I just read (a down to earth and often amusing autobiographical account by an in many ways typical mid-century Midwestern housewife), inspired me to view things in global terms. Thus, public education, equality as a whole, and other issues are discussed in my essay excerpted above. The problem with such a technique is that replies might focus on minor points, which was the case, but perhaps such "thread hijacking" served a useful purpose. A more cynical view of the decision is found here, one overly critical imho, as my comment argued.

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Tennessee v. Lane was handed down today. The case involved suits against states to protect the rights of equal court access for the disabled as authorized by federal law. Creative constitutional interpretation of the Eleventh Amendment led this to be considered controversial and such suits by the disabled in general was struck down as unconstitutional a few years ago. The right to court access, a due process right more specific and deemed more fundamental than general equality for the disabled, saved the day ... barely.

The ruling was 5-4 with the dissents concerned there was not enough evidence of violations to justify such legislation. Justice Scalia (solo dissent) has a point that the vague rules used in this sort of litigation is dubious, but clearly Justice Stevens' (no fan of said precedent) was restrained by the need to get Justice O'Connor's vote. The Fourteenth Amendment arguably can be read to restrain congressional power in the way promoted by the dissents, but it's a dubious exercise -- words like "due process," "enforce," and "equality" aren't so clearly restrained. The courts are busy enough -- second guessing of legislative power of this sort is an ill advised method of expanding their caseload.

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Also: The congressman convicted of manslaughter was just let out of prison, after an hundred day sentence. Not a bad deal for killing someone, no? After an error, a blown call, and a hit by Roger Clemens (sic) led to a potentially fatal extra run scored, the Mets had a lovely win in the 13th yesterday. The ultimate winning run (one strike away from losing, Piazza hit a game tying two run homer in the ninth) came from Jason Phillips, apparently nicknamed by some as "JP." Fine initials, Jason!

Troy

Sing, O goddess, the anger of Achilles son of Peleus, that brought countless ills upon the Achaeans. Many a brave soul did it send hurrying down to Hades, and many a hero did it yield a prey to dogs and vultures, for so were the counsels of Jove fulfilled from the day on which the son of Atreus, king of men, and great Achilles, first fell out with one another.

-- Homer, The Iliad


The movie version of The Iliad (Troy) condensed the events and simplified the characterizations, while removing the supernatural. It was fine spectacle and the key characters were well played (Brian Cox chewed up the scenery as Agamemnon royally, and what is a Greek tragedy without an actor of Peter O'Toole's caliber in a supporting role?). The battle scenes were actually somewhat restrained in some respects, which was not totally a bad thing, and the movie also had time for some good character driven scenes. The treatment of it as straight history without gods and as a complete whole was fine, though things overall was carried out in a too predictable fashion (perhaps, changes in the story line helps here, though loyalists might be upset with some of them).

My main complaint was that it telescoped what was originally a ten year battle into a few weeks and battles. The original also dealt with a short period of time, but everyone knew that they occurred after a long (nine year) siege, and the characterizations were a tad bit more nuanced as well. The film therefore cheapens things, as if the Civil War was telescoped into a few weeks. The long haul was a key aspect of the story. Therefore, though the movie does a good job raising many of the themes found in the original while telling an enjoyable story, something was lost in translation.

The movie just cries out for a sequel (or two -- it directly opens the way for Aenied and there's obviously The Odyssey as well). Overall, still worthwhile, and hopefully it will inspired other classic adaptations. Many of the themes clearly are topical.

Odds and Ends

Michael Moore: I'm not a fan of Michael Moore, given the fact he is a pompous ass who is a tad fast and loose with the truth, and overall counterproductive given he is so over the top. His Academy Award performance last year (heck, some might say the movie itself) was a case in point. And, now the recent controversy in some quarters about the "censorship" of his latest anti-Bush work appears open to debate. This is the sort of thing that gives "the cause" a bad name.

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"Historically, conservatism in the United States has meant support for small government, balanced budgets, fiscal prudence and great skepticism about overseas adventures," notes Clyde Prestowitz, a former Reagan Administration official who back in the 1960s was among the young Republicans supporting Arizona Senator Barry Goldwater, a conservative standard-bearer. "What I see now is an Administration that's not for any of these things."

- Even Conservatives Are Wondering: Is Bush One of Us? [I'd add moral probity.]

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Power Of Speech?: Al Franken did a good thing on Friday's Air America broadcast -- he rebutted line by line a speech given by the President. This should be done more often. To quote Shania Twain, GB's penchant of now and again giving a so-called "good speech" don't impress me much. The ability of his speech writers to make him sound good is impressive ... for them. Likewise, the actual content turns out to be built on sand, misleading sand at that, helped along by semantic ploys. My BS meter erupts loud and clear each time. Finally, ultimately we are just dealing with words. What about his actions as a whole?

[So, no, I was not impressed that some days after the attacks, he gave an eloquent speech to the nation. BFD. My mayor showed leadership the day of the attacks. We saw his leadership through his actions. I also did not care for his speeches, a few deemed particularly good, during the lead-up to the war. In fact, the praise annoyed me because I thought they were bullshit, given the realities of the situation. We should not give him credit he doesn't deserve. It's like his so-called moral probity, while if anything, his presidency promoted a distasteful coarsening of public morality. This bunch puts the "con" in neo-con, don't they?]

Randy Barnett, Original Intent, and Logical Consistency

I was checking out Volokh Conspiracy [unlinked sites are listed in the link roll], which has a nice new look, and there was more from Randy Barnett concerning his debate with some conservative leaning bloggists (and law professor sorts) on his libertarian reading of the Constitution. Barnett recently wrote Restoring the Lost Constitution, and I sat in a few months ago when he was in town promoting it. It was an interesting mini-lecture, and he was personable enough and all, but there did seem to be something a bit off about the guy.

Partly, perhaps, it was that he was a bit too sure about his rather creative reading of the Constitution, which he assures us is loyal to "original intent." The professor on hand to comment on his remarks basically said the same thing -- interesting stuff, but it isn't as clear as you say. Legal Fiction has written some about the problems with this method, including its somewhat arbitrary picking and choosing to determine original meaning. I get the same feeling when Barnett tries to explain that original intent can clearly show how the homosexual sodomy case was rightly decided, while pointing out how certain rulings by Chief Justice Marshall (a ratifier!) helped us on the road to the "lost Constitution" (e.g., where the Ninth and Tenth Amendments are too often woefully ignored, which is quite true). Therefore, though I think his writings are thought provoking, I take them with a grain of salt.

His discussion on the blog of the Establishment Clause is but an example of why I do. It is quite true, as he notes, that the First Amendment on its own did not stop states from establishing churches. The Fourteenth Amendment limited state action. On the other hand, I question his limited interpretation of how the clause restrains the federal government. After all, James Madison himself read it quite broadly. Likewise, Barnett as do others, seems to forget that it really must be read along side the Free Exercise Clause (and in his eyes, surely, natural rights protected by the Ninth Amendment) and surely after the 14th, the Equal Protection Clause. [Overall, equal protection aka anti-class legislation is a constitutional value. It is a "self-evident" truth.]

If you benefit a particular church, you are favoring one religion over another, and in some way hindering free exercise. Likewise, the First Amendment speaks of laws "respecting" establishment, which broadens things considerably. Just what is unclearly unconstitutional about, e.g., a law that makes national motto (statement of principle) a sectarian one? Overall, I find arguments that the Fourteenth Amendment does not "incorporate" (apply it to the states) the Establishment Clause rather besides the point -- I cannot think of a situation where free exercise, equal protection, or perhaps basic liberty interests would not be violated if a state established religion in some fashion. At any rate, a constitutional system in which a homosexual sodomy ban is clearly not a matter of state legislative power, but a weak establishment of religion might be is one I have some problem with.

A final comment. Barnett is somewhat in the league of Log Cabin Republicans in that his libertarian values contrasts with his political leanings. He has in the past quoted with respect comments bashing the so-called libertine '60s generation (apparently, aka rabid Dean supporters ... Dean, whose time as governor of Vermont suggests he would be the most economically libertarian of the bunch). Likewise, Professor Barnett has made it clear that he wants President Bush to be re-elected. This is just weird.

Barnett recently was (for the time being) successful in challenging federal attempts to limit the right of medicinal marijuana use in California. He submitted a strong brief in support of overturning the law in the homosexual sodomy case. And, in general, promotes a libertarian philosophy that just is not upheld by those currently in power. [This in various ways also applies to how the war is being carried forth, if not the war in general.] I would dare to say that even economic libertarians would be somewhat upset at their actions, some attempts at lessening federal regulations notwithstanding. Surely, President Kerry would be no prize in his eyes, given his liberal tendencies. All the same, in many ways, he would be better than the current occupant. This is another situation where the particular stance of a person appears somewhat arbitrary given their general ideological leanings.

[I saw this arbitrariness recently during a debate involving homosexual marriage, one sponsored by the conservative American Enterprise Institute. Jonathan Rauch promoted his argument that gay marriage actually will be beneficial to heterosexual marriage overall. One rebuttal was just based on sectarian religious belief, but the other was only partial, and ultimately based on pragmatic issues. It was overall fair, but (as is often the case) the person just couldn't wrap his hand around the word "marriage." When his own son got married, it seemed to him a special, almost mystical event. For some reason, if his son wanted to marry a male, it would be diminished in his eyes. Why exactly? A certain arbitrariness, the same sentiment that drives certain people to support the President, even though reasonably they should know he is bad for their interests.]

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Other: The Son's Room is a powerful Italian film dealing with family grief when the teenage son dies. I have not read the book, but the TV movie version of A Wrinkle In Time was pretty good with good lead performances and nice special effects. Also, to update an ongoing story, the governor commuted the sentence of Osbaldo Torres. Torres was a defendant in the World Court lawsuit involving consulate notification. See here for discussion; in particular the top comment suggests the pardon might harm the establishment of a clear precedent in such cases.

In the News ...

"And unlike in the United States, where the most prosperous also vote the most, in India it is the poor who turn out in greatest numbers. That means that the very voters for whom India has been shining — urbanites from the middle and upper classes who benefited from globalization and reforms — are also least likely to vote."

-- Sonia Gandhi Wins In Upset. India, like other regional powers, also isn't as opposed to electing women as leaders of their nation.

"The new Iraqi government won't have the authority to evict American forces from Iraq, a top State Department official said Thursday - quickly reversing a statement made minutes earlier before a House panel."

-- Just How Sovereign?

Also ... A Brazilian judge temporary put a hold on the expulsion of foreign journalist, in trouble because of he accused a top official of having an alcohol problem. More on the possibility the Supreme Court was misled in the enemy combatant cases. The Mets owned the night in NY yesterday, winning 1-0 in a pitching duel between Tom Glavine and Randy Johnson, while the Yanks lost (and catcher Posada broke his nose). A light hearted piece on the value of Supreme Court audio. And, of course, click the picture to read about our nation's newest citizen.

Trust Us

As Justice Ginsburg pointed out, some regimes (though not ones the United States seeks to emulate) use torture to obtain intelligence information. "Suppose," she asked Deputy Solicitor General Paul Clement, who was arguing the Administration's position before the Court. "the Executive says 'mild torture, we think, will help get this information?'"

Clement did not hesitate in his answer: "Well, our executive doesn't, and I think the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement in overseeing that authority. You have to recognize that in situations where there is a war, where the government is on a war footing, that you have to trust the executive." (Emphases added).

It turns out, of course, that the Executive cannot even be trusted to give a truthful answer to the Supreme Court. In fact, our executive does use torture -- though Clement surely didn't know it. (No lawyer in the Solicitor General's office - whose main job it is to represent the federal government before the Supreme Court - would risk his or her credibility with the Justices by responding to a question with a knowing falsehood.)

- Edward Lazarus [See here and here on why, long before the release of the photos, he very well should have known his answer was misleading; thanks to Slate (Today's Papers) for the links.]

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Sanford Levinson has an excellent article on our country's selective definition of "torture" here; likewise, his Oct. 2001 essay on how civil liberties are threatened in wartime is still quite relevant. How the controversy affects an already controversial judicial nominee is discussed here. See Sen. Durbin's comments on this and Rumsfield's testimony here.

On that subject, how about Brett M. Kavanaugh, nominated to the key DC Appellate Circuit? Other than his conservative base bona fides (including, a key role in writing the Starr Report), what exactly are this under forty year old's qualifications to such a plum seat on the federal appellate bench? As Sen. Durbin asked him, doesn't he himself know deep down that he isn't ready?

Other: Pretty strong West Wing episode, but does every season have to end on violent terms? It is artistically lazy. On the other hand, recent violence in the Gaza Strip made it sadly topical.

[Entry updated with additional details. I deal with the central issue of this post and re-examine some of the stuff I discussed the last few days here.]

Death Is Different

[Justice] Stevens still thinks the death penalty is constitutional. "But I really think it's a very unfortunate part of our judicial system and I would feel much, much better if more states would really consider whether they think the benefits outweigh the very serious potential injustice, because in these cases the emotions are very, very high on both sides and to have stakes as high as you do in these cases, there is the special potential for error," he said.

- "High court justice: U.S. would be better off without death penalty." Justice Breyer was more restrained, but see here.

"In sum, the punishment of death is inconsistent with all four principles: Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not."

- Justice Brennan (concurring opinion)

"[T]he death penalty continues to legitimize vengeance, intensify racial divisions, promise simple solutions to complex problems and distract us from the challenges that the turn of century poses for America. It also damages our political and legal institutions in ways that are just now being recognized by the American people."

- Professor Austin Sarat

"The death penalty can be opposed because of the possibility of mistake or because how it is carried out is so flawed, but one must still face the fact many on death row did the acts (some quite horrible) for which they were sentenced. Nonetheless, if we take into consideration that such acts were not truly done by free choice, our sense of vengeance must also be reduced. Furthermore, there is the fact that society as a whole is unable to prevent the state of affairs that drives so many to kill.

Should our inability to truly do right and provide a good society that does not do such reprehensible acts along with their inability truly to choose to do wrong lead us to kill them? They remain people (perhaps even with souls), and just like us people unable to stop from doing bad things. It is clear they can be punished for their actions, but the ultimate question remains: should the horrible nature of their actions lead us to ignore they were not freely done? Any number of criminals have various reasons that mitigate the culpability of their offense, but in my view they all are not so culpable to have their lives ended."

- Sin: Does it Exist and Should (Did) People Die For It?