"Church-State Solution": Next!

And Also: A good discussion of an accurate cost/benefit of our struggle for security is found here. One pet peeve of mine is the default idea that "security" should stop the debate when liberty and better uses of our resources generally is complicates the question considerably.

An extended article in next weekend's NYT Magazine offers a "solution" to church-state debates. Yeah right.

Despite the gravity of the problem, I believe there is an answer. Put simply, it is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities. This approach, the mirror image of O'Connor's compromise, is drawn from the framers' vision and the historical experience of separating church and state in America. The framers might well have been mystified by courthouse statues depicting the Ten Commandments, but they would not have objected unless the monuments were built with public money. Having made a revolution over unfair taxation, they thought of government support in terms of dollars spent, not abstract symbols.

This implies that there is some overall problem with how much "religious speech and symbols" are in the public debate now. I doubt this. First off, I think some framers WOULD be concerned if sectarian symbols of a certain denomination (as compared to references to God alone) were placed in front of public buildings. And, the First and Fourth Amendments generally suggests they were not just concerned with money.

Second, some examples offered are dubious. Football is a way of life in many areas, no more "voluntary" than an important after school club. If intellectual design is "a product of the ill-advised demand that religion disguise itself in secular garb," why in the hell shouldn't it be an Establishment Clause problem? But, generally, governmental funding is a fundamental concern. Voucher and charitable choice programs that feed millions into the hands of religious organizations probably is more problematic than some of these things. Still, a lesser problem is still a problem.

[I also share this sentiment: "But while values evangelicalism claims to advocate national unity and inclusion through shared values, school-voucher programs cut exactly the other way, promoting difference and nonengagement. Permitting schools supported by private money to teach that there is no common American undertaking is not the same as encouraging that teaching through state subsidy." As well as his fear that vouchers run riot could balkanize society.]

Such a solution would both recognize religious values and respect the institutional separation of religion and government as an American value in its own right. ... [T]he courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular.

Not quite. If schools teach religious doctrine (intelligent design) as science, how is this separation? Ditto if it chooses the Ten Commandments over other religious displays? And, Thomas Jefferson et. al. suggest that "coercion" was not the only thing promoters of religious freedom was concerned about. This libel -- and it is exactly that -- that strong separationist arguments somehow arose circa the Warren Era is downright wrong. It works both ways: evangelicalism was around for years as well. Solutions need to be based on reality, not stereotypes.

The solution I have in mind rests on the basic principle of protecting the liberty of conscience. So long as all citizens have the same right to speak and act free of coercion, no adult should feel threatened or excluded by the symbolic or political speech of others, however much he may disagree with it.

But, said "solution" is not required for this result. It is true that some "legal secularists" (ah labels) are uncomfortable when some make policy arguments based on religious principles. In fact, many are really worried about the sort of arguments being made, since environmentalism and other liberal friendly arguments often has moral and religious favor to them as well. And, of course, there are many religious liberals out there, useful to be brought out at right to choose and gay friendly rallies. This has little really to do with keeping government from sponsoring religious doctrine directly.

The fact that others have asked for and gotten recognition implies nothing about the exclusion of any religious minority except for the brute fact that it is a religious minority. There is no reason whatever for religious minorities to be shielded from that fact, since there is nothing shameful or inherently disadvantageous in being a religious minority, so long as that minority is not subject to coercion or discrimination.

Rhetorical overkill like this really is annoying. The argument basically wants to rob the "Establishment" Clause of much weight at all because "Texas is a Protestant State" is not supposed to be a problem. This blaming the victim sentiment is distasteful and at best clueless. Give religious individuals recognition ... but (and given the article's patron saint Justice O'Connor DISSENTED from allowing the Ten Commandments display in Texas, this is particularly obvious) not favoritism. I would argue that this is downright difficult without separation, but maybe it need not be with care shown. Care often is not shown.

Atheists will doubtless maintain that any public religion at all -- like "under God" in the Pledge of Allegiance -- excludes them by endorsing the idea of religion generally. But this misses the point: it is an interpretive choice to feel excluded by other people's faiths, and the atheist, like any other dissenter from a majoritarian decision, can just as easily adhere to his own views while insisting on his full citizenship. So long as no one is coerced into invoking God, it makes little sense to accommodate the atheist's scruples by barring everyone else from saying words that he alone finds to be metaphysically empty.

But, "everyone else" is not barred! If those who argue their point will insist on missing the bloody point (such as justices who use public statements of governmental figures to justify governmental acts promoting religion), why should they be taken seriously?

If our very Pledge, taught to our schoolchildren to honor the flag for which this country stands, promotes a belief in God, why should not those who do not share this belief find this exclusionary? Missing the point indeed! Also, "under God" DOES NOT just "endorse the idea of religion generally." The God promoted is not the only possible God available. Finally, how exactly does the author think six year olds are not "coerced?"

Finally, the author's strong opposition against funding will be deemed by many extremist. The "compromise" offered, one far from revolutionary, would not be deemed to be too attractive. It is the felt need of constitutional law professors to write things like this that results in the splitting the baby mush Justice Breyer was somewhat wrongly ridiculed for writing this week. The best path is somewhat unclear, I am surely willing to admit that. The one offered here does not cut it for me.

Supreme Court Round-Up

No retirement announcements!

The Supreme Court handed down various important decisions today though overall followed their "little a bit at a time" philosophy that guided their practice for the last decade, excepting those times when it did not. It might be said that their care allows them now and again to hand down big decisions such as holding execution of the mentally retarded or those under eighteen is unconstitutional. A sort of "judicial review quota" system.

Filing Sharing: The Court unanimously, but split three ways on future applications, that Grokster in some fashion furthered copyright infringement. It did not hold that file sharing programs per se were illegitimate, which is good news. The problem was that there was various evidence that this particular service intended to further illegal use or was negligent in not doing so by means such as filtering mechanisms.

The latter seems suspect to me to the degree that VCRs do not require filtering, but it's an open question since the case in various ways limited itself to the facts. A debate among two three justice concurring opinions* on how strictly the rule upholding VCRs should be read as applied to file sharing (how much proof of legitimacy is required) was just a dicta debate. I am not familiar enough with the facts to challenge the majority, but it is a sound result. Justice Breyer's pro-transfer concurrence has some good stuff.

Broadband: Another opinion (splitting Thomas and Scalia) involved statutory interpretation on a major issue; the majority upheld the regulation allowing broadcast cable providers to bar competitors ... unlike dial up providers, this is not a "common carrier."

Though telephones are (more) clearly common carriers, it seems to me that this at best a correct interpretation of a bad policy choice. Why should broadcast cable providers (accept perhaps because they are new and need the discretion) have this special privilege? The importance of free commerce of information holds across the board with both commercial and free speech interests at stake. This is a bit of a gut feeling though and again it is not necessary relevant to the decision.

Two criminal justice rulings. One (5-4) held a special procedure (when potentially compelling evidence arose in a death penalty case late in the day) was a violation of proper rules. The case was narrowed to this one specific case, but Justice Breyer had a compelling dissenting opinion showing why the care shown here should be praised, not held to be a breach of discretion.

Another ruling (7-2) held that the relevant state law did not give a woman under an order of protection a "property right" under due process of law to receive police services (the net result was her two children was killed by her husband, who then committed suicide). An emotional case that turned on a statutory point as well. The case was not about right to services per se, but if it was protected in this very case. The dissent appears to have a point that the majority misconstrued the law, while going out of their way to do so.

Ten Commandments: The Supreme Court 5-4 held that one display in a court house was unconstitutional because of bad intentions, but also 5-4 that a Ten Commandments monument outside the seat of the state government was legitimate as a historical recognition of religion and morality.

Justice Breyer (of all people) split the baby, while Justice O'Connor dissented in both cases. Justice Breyer in fact robbed the plurality in the second case of much significance because he distinctly agreed with joined O'Connor's concurrence (just not as applied here) in the first one. Basically, he said that the outside display just was not serious enough to be a breach.

Justices Stevens and Souter (joined by three and by O'Connor "essentially") tried to explained to him why it was. As Justice Souter noted: "A governmental display of an obviously religious text cannot be squared with neutrality, except in
a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others."

A freestanding sectarian Ten Commandments statue just does not meet the test. It is much more blatant than "under God" or "In God We Trust" and any number of other things. Furthermore, there was no secular purpose. The statues was donated by a group with the purpose of promoting morality via "biblical teachings," which "injects a religious purpose into an otherwise secular endeavor."

Justice Souter also targeted some of the other dodges. The set of monuments were argued to be a piece: a monument museum that should be viewed as a whole. Nonetheless, but "17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass."

Nor did the fact it took a long time to sue compel an opposite result, both because there was other reasons than the "trivial" nature of the dispute for the delay and because the history of litigation over time in other places itself suggests it is not trivial. And, Justice Stevens noted that statements of various politicians over time (besides not being consistently in one direction) is just not the same thing as a permanent display that is not limited to the views of one specific individual.

Finally, Justice Stevens provided various rebuttals to Justice Scalia** in particular, including the suggestion "that nonmonotheists make up a statistically insignificant portion of this Nation's religious community" for the purposes of First Amendment doctrine. As compared to Jews and Muslims, who combined have numbers smaller? Anyway, it is a moot point because the Ten Commandments itself is pretty sectarian, since there are multiple forms. One important dispute is over the inclusion of a reference against "images." Thus, the matter of of some importance, even if there are more important religious debates being litigated. The Ten Commandments are clearly religious and state endorsement of one among many sacred texts is clearly a troubling "establishment" of religion. As Justice Stevens tellingly notes:

The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagogues, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall.

But, ultimately, this case is not about first principles alone. It is about blatant violations thereof. This is not all about allowing "religion in the public square." It is about a particular form of one particular form of it. It is not about a place for an item with some religious content in government sponsored displays. It is about the selection of one individual religious content above all others and putting it in a primary place of importance. So we inclusions of little Ten Commandments in bigger friezes on court walls or some collection of documents (honestly not on a pretext -- see the companion case) of some religious significance may or may not be an issue, but is clearly not involved here.

Justice Breyer is Jewish but his daughter wrote a book about her decision to choose a religious vocation of a Christian character. This is religious pluralism at work. Displays like this is favoritism and is unconstitutional. And, since religious favoritism is involved in many of the political debates today, it is a canary in the mineshaft about basic constitutional principles.

---

* Justice Breyer vs. Justice Ginsburg and Justice Scalia v. Justice Thomas are but two interesting splits among the opinions handed down today. The Court clearly is not just divided 5-4 on everything.

** Justice Scalia had the job of supplying the dissent in the Ten Commandments display that was struck. It is an offensive piece of work starting with its 9/11 reference and comparison between the U.S. and secularist Europe. Now he decides he has the ability to interpret foreign constitutions?

Just one more offensive piece: his penchant to water down religious differences in promotion of a general principle supportive of "God." As noted, the Ten Commandments display is not a vanilla item, but one form of a sectarian religious item. But, his penchant to disfavor (certain) religions to favor his particular definition of "religion" is nothing new. All the (selective) religious quotes from public officials won't change that.

Weekend Musings

The Yankees get no sympathy here, as years of overpaying or trading prospects for aging stars finally have caught up with them, leaving them seemingly helpless to stop yet another humbling losing streak.

- John Harper

Who's your daddy, now? Pedro pitched another gem against the Yanks, actually winning this time (the first time he probably pitched better, but the defense blew it in the eighth). Both teams are now .500, which is only appropriate, since both are wildly inconsistent ... the Yanks more so than the Mets.

The Yanks looked sad against the Mets so far this weekend, especially when (for the first time in the NL ... a few years ago the Yanks did it twice in one year) they managed three sacrifice flies in one inning, thanks to a couple errors. I am sure that they both will change places sometime soon, the first doing great, the other mediocre at best. It has been that kind of year, just only one has a payroll of over $200M and is being ridiculed for it by the local press. But, they are due ... teams have down years, and theirs is long due. I just wish the Orioles somehow bounce back.

The Red Sox owner leased a plane to the CIA to perform renditions for crying out loud! Are alleged terrorists with a 95mph fastball or a good OBP sent here?

Nicole Kidman is so felicitously magical in "Bewitched" that she wrings considerable charm from a mess of a movie. And the nose wiggle and ear pull are only part of it.

- Bewitched Review

Nicole Kidman (with an assist from Michael Caine and a few other supporting roles) is the reason to see this film. She has that otherwordly nymph charm as shown by a recent appearance on David Letterman, and I fully believed her as a witch playing a witch in a re-make of Bewitched. I still think she needs some more sun, but who cannot like her? Definitely a cutie. Good actress too.

The movie itself was a bit lame. The key, though the Ephron sisters (Delia and Nora) gives chick lit a bad name so this is not too surprising, is the story. It's just too thin. The Addams Family suggests a movie can be made from a half-hour sitcom, but surely it is a tough job. Still, it should not be TOO hard to fill 90 minutes. Current "comic" films suggest the low bar. Too much filler and an questionably utilized Will Ferrell (mixed here) hurt things.

But, the film had its moments. The central deceit -- a witch who wants to be a mortal -- is not really unbelievable. Many wish for what they cannot have, especially if deep down they know the past life would not be totally given up in the process. This applies to some rich folks, especially in the movies. So why not witches?

Anyway, Kidman hit the right spots, and with a better script, she and the others might have had a better movie. Matinee material, except for Kidman fans.

Privacy: Home and at the Library

Interesting Essay: After talking about the evolution/creation science battles, Mark Kleiman uses religious arguments in support of the "reality community," namely people are made in the image and likeness of God, therefore horrible mistreatment is a violation of sacred individuals.

Law enforcement officials have made at least 200 formal and informal inquiries to libraries for information on reading material and other internal matters since October 2001, according to a new study that adds grist to the growing debate in Congress over the government's counterterrorism powers.

-- Library Survey Discussed

While it might be true that the Patriot Act was not used to obtain library information, Ashcroft's contention that "we just don't care" doesn't seem to be true. Government officials -- and apologists for greater security -- routinely argue that those concerned about privacy and civil liberties are overreacting. Perhaps if the government were honest and forthcoming about the facts -- if it were to have a policy of providing the cold hard facts about what it is doing -- then people could properly evaluate the government's law enforcement endeavors.

-- PrawfsBlawg

The blogger hit the mark. While those like Orin Kerr try to microanalyze governmental regulations that touch upon First or Fourth) Amendment areas, the general public (as well as librarians) are concerned with the overall picture. "Patriot Act" is somewhat representative of broader things besides moving the acceptability line over indirectly in various respects.

As with other matters, those like Ashcroft dismissively ignore reasonable worries and ultimately do so in rather counterproductive ways. And, just because some instance of governmental power doesn't technically arise from the Patriot Act, our concerns should not suddenly be dismissed as overblown. Instead, Kerr (a generally reasonable soul) makes it seem like the American Library Association is some unreliable propaganda group akin to Karl Rove.

Anyway, these days if asked to decide who to trust, the ALA would often be chosen before the Bush Justice Dept. OTOH, it is a bit disconcerting that again the conservatives on the Supreme Court get the point, while Justice Stevens et. al. do not. Today's Kelo opinion basically gives the government carte blanche to take private property (the home owners here included those who owned their property since the early 20th Century) for private development. This is what "public use" per the Fifth Amendment means, not government buildings/roads or even public use items like stadiums.

Justice Kennedy's concurrence suggests that the law of the land is now the result one sees in state court decisions like SWIDA v. NEC out of Illinois -- courts defer to state and local proffers of public purpose or public benefit unless the owner can prove that the purpose/benefit was pretextual and that the government actor that ordered the condemnation was in the developer's back pocket.

So said one person in a discussion about the case. This suggests some limits, but the Justice O'Connor for the four dissents basically is right to say "oh please." You can have a totally aboveboard (in various respects) public process, and it will favor certain special interests. She was a legislator, so knows about the real world of politics. This is the way of the world, but it's not how I want my lifelong HOME (not that I have one) when there is no "public" use but some development ideas. I want the darn thing to be clearly controlled by the government and/or serving the general public. Private development, as shown by recent football stadium shenanigans, is quite a different matter.

It underlines that sometimes leaving economic matters (broadly defined to include things like medicinal cannabis) to the state is as troubling as when personal liberties are at stake. After all, if your home is not safe, why should what you do there be? Fair is fair, right?

Baseball Chat

I addressed local sports action last Sunday. A few more words. Monday was a throwaway game for the NY Yanks. A minors call-up had to fill in for Kevin Brown and he was not up to snuff. The Yanks almost still one, since Tampa Bay has a habit of blowing leads of three or more. The score was 5-0 in the eighth, but once the starter was removed, it was 5-4 in a hurry. Tampa Bay hung on all the same, continuing their winning record against the Yanks.

The Mets had a horrible road trip. They did get rid of Dejean, the guy who blew their chance of winning on Sunday, and has not played well all year. The team has a worst record than they did this time last year, though the proof in the pudding will be the Summer -- last year, they went into freefall, which they CANNOT do this time. The local paper suggested a couple key problems: taking too long to put people on the disabled list and lack of adequate hitting.

I'd add a third: some questionable managerial moves. Randolph's decision to save Heilman for today (with an off day on Monday!) instead of leaving him in to try to salvage the series (ending things on the right note) was ridiculous. Also, when Mike Piazza was thrown out of the game last Sunday for comments from the dugout (off camera), Randolph himself might have got himself thrown out of the game.

Yes, Piazza was wrong for risking removal, and thus hurting his team. But, he had a real gripe, one the usually sedate television announcers pointed out (they too felt the First Inning ejection unjust). After a late night extra inning win the night before (it was somewhat surprising he was even starting the game), he also might have been a bit emotionally tired. I respected his emotion and encouraging such passion is a good thing. Yes, not quite this sort of thing all the time, but sometimes you have to make exceptions.

Randolph said that he is guided by his former manager, Billy Martin. Martin was a "win today" sort of manager as well as surely as passionate one to boot. Randolph is learning the managerial ropes, so I will give him somewhat of a pass, but Summer is a sort of dividing line of the season: time to buckle down. After being four games above .500, they are now three games below. This cannot stand. Time to shape up a bit and make sure we do not have another forgettable summer. A bit more care and some more emotion will help.

Sexual Exploits and Invasions of Privacy

Jessica Cutler - better known as "Washingtonienne" -- achieved notoriety with a web log ("blog") about her sexual exploits, written while she was a staffer for U.S. Senator Michael DeWine of Ohio. When her identity became known, Cutler was fired - but also got what was reportedly a six-figure contract to write a novel, and an offer to pose for Playboy.

The novel, The Washingtonienne, is out now, and Cutler is doing readings. But her life isn't entirely carefree: Cutler still faces an invasion-of-privacy lawsuit, filed last month by Robert Steinbuch, a staff attorney for DeWine.

Julie Hilden, a lawyer who wrote her own somewhat racy autobiographical account, uses this lawsuit to provide an interesting discussion on invasion of privacy lawsuits and public accounts of sexual exploits. I personally am wary about making someone civilly liable for saying something that is true, especially if it is not within various compelling exceptions to free expression (copyright, national security and so forth). And, Jessica Culter is not an ordinary soul, but a governmental employee who discussed her goings on with staff members of a conservative member of Congress. Putting aside how invasion of privacy suits can be still alive in the era of exploitative talk shows, this seems to be a public matter.

Nonetheless, the article suggests by absolutist leanings do not work in real life -- in real life, there are various shades of gray and intricate questions when determining liability. For instance, Hilden probably would not be liable if she just tell fellow employees or friends. This is not "public" enough for an invasion of privacy tort, at least in the jurisdiction in question. [It is different from "publishing" lies ... telling one friend will do the trick there.] Thus, "private" conversation is protected to some important degree. In fact, such "private" (the quotes are in place because telling ten co-workers is not really private, especially with a gossip multiplier effect) exposure might protect her from later lawsuits once she put the information in the public sphere at large. It is rather amusing on some level.

Hilden also suggests Cutler's tell-all is in the public interest because of what it tells about sexual power politics today:

So Cutler - like Lewinsky before her - may simply have grabbed for the power that seemed most readily available to her: sexual power. As much as this kind of power is touted, it's not a very powerful kind of power, especially in the long run. But young women may see it differently - and if this kind of power is chosen, even unwisely, by those to whom political power is largely inaccessible, then doesn't it, in a way, have a political dimension, too? ...

If the questions of what it means to be a wife, and what it means to be a whore, are political as well as personal questions - and I think they are -- then this blog definitely (if often inadvertently) had something political to say. That, too, may provide a defense Cutler can raise in Steinbuch's suit.

I would agree. Likewise, Hilden's generally sympathetic reading of Lewinsky appeals to me as well: "Lewinsky - who displayed what seems in retrospect to have been an eerily Cutler-like mix of nerve, blitheness, bravery, indiscretion, gross immaturity, and the boldness of youth." Lewinsky is one of those individuals (often women) people love to despise, but are in my opinion, unfairly targeted. The bitchiness shown against this women -- it's not HER fault the Right (and the media lapdogs that helped) used her against Clinton -- in unseemly. I especially dislike the shots against her weight.

Are we a nation of mean teenage girls? Monica is just an average person, no one special but I doubt she claimed to be, who got caught in the heat of events. So she might not be a major prize as girlfriend material (I doubt this was quite her role anyway) ... just as I have determined by now that people in general are rather average looking, it is clear to me that many women (and wives) are no major prizes either. This is why finding a good mate is so precious. As to her immaturity, at least she is not running the freakening country now, like another person that comes to mind.

Anyway, I do think relationship and sexual matters are matters of public debate. The essay suggests, much more than the Starr Report, some of the intimate details referenced in Cutler's book has some justified role in discussing such themes, themes that are not "private concerns" alone, but matters of the public interest. Some line is crossed these days in various accounts, as suggested by the new attack book on Hillary Clinton, but the courtroom is not a great place to draw finer ones.

Stupid New Republic Comment Of The Week

Whatever his would-be tormentors say, he is hardly being opposed because he's a nasty man or because he delivered a speech not vetted by the State Department or because he played rough with people lower on his totem pole or because he didn't believe some intelligence emanating from the CIA. ....

Bolton's offense is to believe that American democracy has enemies; that words alone will not hinder their weapons; and that the United Nations is an alliance of those too weak-willed to stand up and fight for the good. Bolton believes in the sovereign power of democracies because they are responsive and responsible to their peoples.

Yeah, those darn liberal (and conservative) opponents of Bolton are really worried about him believing America has enemies. No, that is just stupid and asinine. It is one of those things which should require those who write it to pay their employers. Fair is fair. For instance, when Al Franken ridicules Bill O'Reilly (they both despise each other) on Air America, he should basically just agree not to be paid. Clearly, Franken's ability to ridicule that guy on the national airwaves is worth more than he's paid during those times. Ditto his right to do his stupid "old Al" and some other annoying routines.

Anyway, back to Bolton. The need for some tough talker (my former senator, Moynihan is referenced) at the UN is not something for which I would be opposed. The U.S. has a role to play in the UN, including to keep it honest. A bomb thrower who has shown distaste for the institution in general, however, is overkill. And, no, those on both sides of the political spectrum against him are not just blowing smoke -- the guy has problems. I also kind of think being diplomatic is part of a job of a diplomat.

Finally, what is this b.s. about him believing in democracies or whatever inanities mentioned? This is not an either/or situation: appoint the ill-qualified jerk or just agree to have some empty talk. The general value of our country saying "fu" to the UN does not seem a great way for us to help other nations be "responsive and responsible to their peoples." But, you knew that. Inanities in editorial comments are a major pet peeve of mine. Almost as much as blowing key calls at ball games.

Books and Sports

Thanks Dad.

Books: Good review of the latest Doonesbury compilation, this one involving BD's losing his leg ... it is a general review of the strip author's career. Also in the book field, a bipartisan measure to temper the Patriot Act (sic) provision on libraries passed ... for now. The President threatened to veto the reauthorization measure if it was included, since of course he is like a little boy who doesn't want to share.

The reform would still allow searches of library and book records, but would just require a higher standard of independent review. As noted in a NYT piece, people have a reason to be concerned, putting aside the basic principle of the thing. You would think the hubby of a former librarian would understand such things.

Sports: The NY teams, for the moment, are back to form. The Yanks just swept two series, the last against a credible Wild Card contender. The Mets won just one game against the As and Mariners, both at best mediocre. The Mets are starting to annoy me because they are playing all too much to form. Fans really do not expect too much ... just credible .500 baseball. They are not playing that now.

This includes today's game when Glavine couldn't get out of the third and a four run inning to get within 6-5 was immediately followed by the giving up the same amount of runs in the bottom of the frame. Oh, and why does Willie Randolph feel the need to conserve Aaron Heilman? Is he hurt or something? He didn't give up a run in 2+, he is taken out, and replaced by mediocre Mike "Hit Me," and the rest is history.

Oh, and the ESPN announcers for tonight's game really pissed me off. A key play in the eighth that ultimately led to the leading run involved fielding a sacrifice bunt. The first baseman of the LA Dodgers did not get out of the way, making it hard for the catcher to throw to the second baseman covering. The play was still made ... a tough one at that ... but the ump missed it. Replays showed this ... his foot was on the bag.

The announcers went on and on about how the second baseman was at fault. The guy did make a mistake, but players do that -- their team mates pick them up. This is how things work in this world -- we do not always make things easy for ourselves, but it is the end result that matters. The end result (should have been) was an out. The ump is paid to accurately make plays that are a bit tough. He was at fault and blew a call that directly led to the winning run.

But, the second baseman was made the goat. He was not -- the ump was for making a bad call, not a very good play, the turning point of the game. And, the announcers deserve my scorn for missing this basic point.

Challenging Peremptory Challenges?

Identity Fraud: Stories like this are a bit scary. In fact, I know at least two people who fell victim to some sort of identity theft, one with nearly no assets, the other more well off. This suggests worries that a national id card would lead to additional problems should be given a fair hearing.

Miller-El v. Dretke is but the latest word from the Supreme Court about the misuse of peremptory challenges in a Texas murder case. The case has its roots in the mid-1980s when it was remanded in light of Batson v. Kentucky, the precedent that gave teeth to claims of racial bias in such cases. The lower courts didn't think there was a showing of discrimination, but eventually the Supreme Court said there was (hint hint) a reasonable claim indeed. The lower courts did not take the hint, citing the dissenting opinion of Justice Thomas along the way. Clearly annoyed, the Supremes took the case again, and (along with a companion case) overruled (underlining the importance of Batson challenges as well).

This case suggests the importance of federal appellate review, including on the Supreme Court level. It also suggests that peremptory challenges are still an issue, also shown in other cases that expanded Batson (including to civil litigation and gender discrimination). When Batson was originally decided, Justice Thurgood Marshall concurred separately to argue that peremptories by themselves are constitutionally suspect. They further bias and stereotypes and Batson was too slim of a reed to solve the problem across the board. Justice Breyer took his lead in this case.

Some are sympathetic while others are wary. Count me with the former group, but I respect the concerns. First off, one complaint is that Breyer is not consist with comments like "If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the juryÂ?s democratic origins and undermine its representative function." After all, he wants to expand the power of judges in sentence guideline cases (see Booker). But, putting aside the differences, he can be partly wrong, right?

More troubling concerns go to the basic purpose of these challenges: giving flexibility to lawyers to determine bias. Sometimes, merely asking questions will not determine a juror is biased, thus "for cause" exemptions are too narrow. Relying solely on "for cause" challenges also might shift the control to prosecutors or judges. The first might have the resources to investigate potential jurors that many defense attorneys (who don't all have loads to spend on jury consultants and such) do not have. The second because "for cause" means "for cause as interpreted by a judge." The current policy allows the two parties' lawyers to have a say as well.

Not being a trial attorney, or attorney at all for that matter, I cannot belittle such concerns too much. My concern is that it does seem rather arbitrary and will in various cases be based on pure racial or other illegitimate (if brought out in the open) bias. These two cases will make it easier to prove, of course, and many cases will not bring up such concerns at all. And, if "for cause" was the only test, I reckon the practice in court would change somehow with the meaning of this term being much looser than it now is. The push to end many exemptions also has broaden the jury pool, made it morerepresentativee. And, perhaps more in need of gut instinct methods to weed out biased jurors.

My heart tells me that ending peremptories might be a good idea, but my brain tells me that the critics (and we are talking about defense attorneys here as well, who surely disproportionately deal with minority clients) make a good case why that would not be a good idea. [Including at least one reader of this blog.]

Further Reading

Comment: Polls numbers suggesting the people are unhappy with Bush's policies is of somewhat limited value since the guy is not quite concerned with such things. Self-assurance of the sort that guides him is not stopped by facts or opinion. Anyway, did a majority vote for him? Even the second time, Ohio questions aside, but a plurality of potential voters did. Given usual turnout numbers, this amounts to about thirty percent of the electorate.

Judicial Wars: John Dean has an interesting essay on the meaning of "judicial activism," including a link to a law review article that puts the matter in historical context (have yet to read it, but it is provided in easy .html format and looks interesting).

Furthermore, Congressional Quarterly also has some good resources on the judicial nomination battles, again providing some historical context. The CQ site in fact has tons of background materials on a myriad of current matters of public concern. Boon to civic classes everywhere.

Media: Al-Jazeera: The Inside Story Of the Arab News Channel That Is Challenging The West by Hugh Miles is a sympathetic look at the revolutionary news channel that also provides a questioning eye on Western (especially American) opposition. Serious questions can be raised about providing a forum of terrorist voices, but Al-Jazeera does stay true to their motto: "the opinion and the other opinion" by providing other voices as well. It has a point of view, but so does our news stations. And, working at such stations tends to be a helluva lot less risky.

This ironically means it is criticized from all sides, especially from the autocratic leaders of local Arab governments. The number of misleading attacks by the United States (and suspicious actual physical attacks, a few leading deaths) suggests the importance of having such a balancing resource. It is actually an amazing example of freedom of press in action with a credibility based on its journalistic ethics and BBC sponsored personnel origins. Taken with a grain of salt, this continual subject of scorn can be rightly said to be a blessing to the cause of freedom.

Televising Trials In NY: Meanwhile, a ruling was handed down by the New York Court of Appeals that rejected a constitutional claim by Court TV concerning the state's ban of televisions in the courtroom. The U.S. Supreme Court once came close to ruling that any broadcasts threatened the fairness of trials, but later tempered their concerns. Nonetheless, the same ruling held that states had the discretion to choose whether or not to televise, and N.Y. basically has a negative policy until this very day.

Putting aside constitutional compulsion, this is probably a bad policy. Even a limited allowance of cameras would promote understanding and openness, giving the "public trial" provision of the Sixth Amendment a truly up to date touch. Local access channels can very well be used to air such trials with educational commentary. This would also be useful for potential jurors. And, careful selection can be used to deal with troublesome cases where television might be considered to be exploitative, invasion of privacy, or some other threat to fair trials.

I question if television generally can be treated as a second class citizen in this area, but a near blanket ban is overkill either way.

Looking Glass Indeed

There was some good stuff on C-SPAN this weekend, including a speech by Linda Monk, the author of the excellent annotation of the Constitution for the general reader, Words We Live By. One of the authors on Book TV was Michael Cannon, Jr., a military chaplain and author of Abu Ghraib: Reflections in the Looking Glass . He talked in part how the wrongs committed there is a reflection of the problems of society itself in part because many were performed by civilian soldiers, not career types. No, the career types just set up the atmosphere that allowed them to do so.

Nonetheless, I must admit that he lost me when he started to defend the war itself. The war, he argued, was set forth to defend liberty. And, no matter what people say, the men and women out there continue to fight for that purpose: the liberty of Iraqis and ultimately for us all. Sorry, Mr. Cannon. The war was sold as a fight against WMDs. Many did feel it was a matter of liberty and fighting an evil dictator ... why we chose this one raises a lot more troubling questions.

You cannot go on and on about the glories and complexities of liberty without dealing with the problem. The Downing Street Memo (discussed by blogs everywhere, including here and here) shouts the point from the rooftops. The latest is that there is clear evidence that we went to U.N. not to avoid war, but as a means to go to war -- Saddam's intransigence would give us an excuse. And, no it's not just the musings of some nobody, but a (basically undisputed) account of top British officials.

Cannon is right that "liberty" is not merely license, the empty pursuit of happiness. It is a complex matter that in part involves certain responsibilities, though to some, this does not sound like fun at all. Part of this responsibility is not, to be blunt, try to sell us crap that the promotion of "freedom" alone is what got us this far. And, if someone of his caliber can do so, it suggests how far bad things truly are. Are we to ignore this because our fellow citizens are dying because of the wrongs of our leaders? No.*

On a lighter note, the commentary track to the As Good As It Gets DVD is pretty good with the stars of the movie joining with the director. Listening to Jack Nicolson talk about his craft is quite striking. Oh, and Nicole Kidman (born in Hawaii) just walked on Davies show ... Darn she is tall and light. Yeah, that's some segue, but she's much better to contemplate than the [expletive deleted] running the country.

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* On a related point, is it okay to criticize the war yet? You know, just wondering.

Joy of Reading

Pol Thoughts: Lindsay Beyerstein has had some excellent blog posts recently. I find the need to criticize Dean for one of his off the cuff remarks a bit stupid, but generally, agree with this discussion of the misuse of the word "Christian." These people are the best "Christians" have to flock too? That would be mighty depressing. The page has some good links, including respecting the ongoing push for real voter justice in this country. Rep. Conyers -- the guy even has a blog -- has done great work in this area. He shows how "minority" (of all races) voices can speak truth to power, even in these troubled times. As to Ohio, not only Gore Vidal (The Nation), but also Christopher Hitchens, feels something went seriously wrong there in 2004.

Remarkably, Americans still spend more on books than they do on moviegoing, recorded music, video games or DVD's. Despite all the advances in technology, books still have no equal when it comes to telling complicated, nuanced narratives.

I'm not sure if I would agree with the degree of bibilophilia referenced here,* but the general sentiment meets with my approval. As shown by my use of the Internet, reading per se is a wondrous experience in my mind. Though it can be addictive and excessively used, the ability to easily obtained the views and information (and share them) provided online is amazing. Just imagine -- as soon ago as 1998, the Internet was a rarely used thing for this writer. Now, I often spend hours online. Pluses and minuses to that, but it is useful to take a step back and realize how things change. Soon enough, the amazing becomes mundane.

As to my reading habits, I have some trouble getting into fiction -- always did, though in time, I became more friendly to it. Also, I am becoming a bit more disconcerting -- I find a bit less patience, more of an aptness to return books to the library that do not appeal to me. Internet reading clearly has some effect, including cutting back some on the time spent reading books and other hard copy media.

Still, a book has a special place in my heart. Putting aside problems with download speed or easily skipping around (links can also be a bit distracting ... a neverending universe that you feel you must examine), the computer has some limitations. It is just often more leisurely, as noted by the letter writer, to read a book or newspaper. You can read almost everywhere, which is just not possible even with a laptop. And, it focuses your thought in the way the Internet cannot -- the Internet (which has its share of fiction) is more of a multimedia/multitasking sort of animal. Useful, but it has its place.

A good book is also a personal experience. The mind is alive when you read a good book (again, some of this can be applied to the computer media), things passing through your imagination as you read and form pictures of what is inside. This is definitely the case for fiction, but is true for nonfiction as well. Your mind analyzes what is said, compares it to other things you have read and believe. This is as pleasurable to me as a good story can be.

I have had a mixed record this year finding good books, such as the ones posted on the margins, but they were small pleasures.

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* "For me, nothing else can compare with sitting down with a good book. Yes, I love movies and music, and I use the Internet regularly to send and receive information, but having a book in my hands is a singular experience. The simple act of turning a page in a leisurely manner and getting involved in a story is a wonderful way for me to learn, grow and, of course, relax and escape. The images, feelings and moods that a good book creates in my imagination are all about me. No computer, TV show or video comes close. Books are magical." [Married to librarian.]

Marijuana Policy Missteps

The majority opinion in the medicinal marijuana case had some not so veiled comments suggesting the policy it upheld was questionable. The same could be said by those in the business of drug policy. For instance, Mark Kleiman, who is no big fan of litigation as a means to reform drug policy, points out that the actual effect of programs like CA on interstate commerce and federal drug laws is probably rather small:

The harder a drug is to make in an illicit lab, the greater the possible contribution to drug abuse of making it licitly available. Methamphetamine is easy to cook from easily-available precursors; heroin is moderately easy to make, but only if you have a supply of opium; oxycodone simply isn't a backyard chemical.

Where diversion is a significant problem, there's a real tradeoff between making life easy for physicians and patients and reducing drug abuse.

In the cannabis case, insofar as the "buyers' clubs" function as convenient retail outlets, they may do a little bit to increase the availability of pot for non-medical use, though of course the places most receptive to the presence of such clubs tend to be the places where strictly illicit cannabis is easiest to obtain. But the ubiquity of the illicit cannabis supply, in both geographic and social space, greatly reduces the impact of making it medically available.

In the fact situation of Ashcroft v. Raich -- production by a patient for personal use -- that impact must surely be entirely trivial. Yes, if such activity were allowed, some patients would grow more than they need and sell the surplus. But it's inconceivable that their contribution, either to production or to retail availability, would be noticeable, let alone significant.

This is constitutionally significant too because if there is only a trivial effect, the federal power is much more questionable. Justice Scalia, for one, saw the law as a "necessary and proper" means to uphold commerce power, not commerce power per se. If the effect is "trivial," how necessary is such a threat to local power?

The majority opinion also cited the hope of the political branches. Salon suggests the decision will help those in Congress putting forth legislation that would at least exempt those programs authorized by state law. Maybe. But, good faith has not been shown, as suggested by Sally Satel, generally a conservative voice in the medical field. But, showing this issue has some strange bedfellows, she noted in a NYT editorial:

RELIEF for medical marijuana patients was snatched away this week. In Gonzales v. Raich, the Supreme Court ruled that such patients will be subject to federal prosecution even if their own state's laws permit use of marijuana. Now, short of Congress legalizing medical marijuana, the only way that its users can avoid stiff financial penalties or jail is if it is turned into a prescription medicine approved by the Food and Drug Administration. Justice Stephen G. Breyer said as much during oral arguments last November with his comment that "medicine by regulation is better than medicine by referendum."*

Fair enough. The problem is that the very agencies integral to facilitating the research and development of medical marijuana have actually been impeding progress.

As Mark Kleiman notes, in reference to other things in the news [watering global warming reports], "Censoring science is a nasty habit, whether the bureaucrats doing the censoring work for the Federal government or a university Institutional Review Board."

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* Of course, the decision was not just about referendums. If a state legislature or health board passed a law to allow this sort of thing, it would still be rejected by the feds. The idea is that only the federal government is allowed to regulate. So, Breyer's quip is too cute by half.

It's also interesting that even the majority in this case suggested how drug laws started out as revenue laws as if federal commerce power doesn't reach prohibition (see Eighteenth Amendment). Or, as Mark Kleiman notes, concern regulation of medicine -- though they are treated as prohibitory.

Battle Against Public School Values

And Also: For my thoughts on the confirmation of Janice Rogers-Brown, see here. And, many don't believe Justice Scalia was consistent in the pot case. I tend to disagree -- the guy is flawed, but watch out for the simplistic attack.

Emboldened by the political right's growing influence on public policy, opponents of school activities aimed at educating students about homosexuality or promoting acceptance of gay people are mounting challenges to such programs, at individual schools, at statehouses and in Congress.

-- Gay Rights Battlefields Spread to Public Schools

Our parents have a constitutional right to send us to private and religious schools. They also have limited rights (as do students themselves) to limit public school curriculum, including when it wrongly mixes church with state or inhibits other freedoms. We don't, however, have a general right to put our values over that which are at the heart of public school itself.

For public school does teach certain values ... all education does, and education put forth by the state does as well. For instance, besides the three Rs,* it teaches good citizenship, how to work with a diverse group of people, and overall free inquiry. The attempts by some to limit such values and educational principles is problematic -- if they don't like secular education, open and free inquiry, and meeting together of points of view or groups that they might disagree with, send their children elsewhere. Don't try to alter the basis of public education.

Let it be noted that libs might run into problems here too in certain cases. For instance, perhaps they wouldn't want their children to learn about war or be exposed to clubs (including gun related) that they don't like. It is not just a right thing. Still, when the right tries to limit the range of material taught in school, the (federally protected ... law protects religiously themed clubs as well as gay friendly clubs) after school activities, and honest and well-rounded health education, it is troubling.

As with the battle over stem cells and the like, public policy these days is not just a matter of foreign policy or questionable tax/business "reforms." As usual, cultural matters dominate as well, and a proper balance must be reached. The public schools are not the place to limit the range of knowledge, debate and openness in the ways discussed below ... in fact, any limits must be looked upon with askance.

And, they better watch out -- when the political winds changed, their call for censorship and skewering things their way might come back to bite them.

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* What a trite metaphor anyway. Who actually believes that the schools should only teach reading, writing, and math? Note how many who speak of the 3Rs are quite concerned with prayer in school as well -- where does that fit? Prayer before tests? Reading the Bible? Or, sports. Then, again, football is a religion in some areas.

NYC News

The guy who moved out to the country and talked to a pig recently died at age 99 ... I was not aware Eddie Albert was still alive, but it's nice to know that he apparently had a peaceful death. Anne Bancroft, who I was not aware was sick, also just died. She was a Bronx native, one of many stars from that boro, and her maiden name was "Italiano." Really. That's more like a title, isn't it?

Also going on in the Bronx is some Yankee problems -- lots really, since they either can't hit, field/run properly, or pitch, at times all on one night. I do generally wish them well, especially some of the old timers, but they might just need to hit bottom. The team is overpaid, over the hill, and it's farm system questionable (by now, other teams also realize the prospects have mixed records once they play in the majors). It also is notable that a decent number of starters that once played here are doing fairly decently in other teams, mainly over in the NL. Anyway, at some point, they will have to build -- at least just a bit -- again, though maybe not in the lifetime of the current owner.

Meanwhile, the stadium in the West Side of Manhattan appears dead. This has long been a local battle royale, though our billionaire mayor has felt no need to (1) put the matter -- a major deal for tax payers, money being but one part of the effect to them -- to a popular vote or (2) basically play by the rules. Putting aside the soundness of the Jets stadium plan (a big question mark with local sports journalists especially negative, plus various Democrats, only some running for mayor), both are deal breakers for me. [Hope for the 2012 Olympics at the site apparently was slim anyway.]

For instance, there is talk that the plan will lead to money for us all, but there was another major bid (Cablevision), one not given equal concern in the overall process. Big no no. Even though the guy is a Republican (switched for political reasons, but now he's helping the party too, so blah to him), Mayor Bloomberg did a decent enough job, and might have received my vote. This sort of power grab is a deal breaker, even if his heart is in the right place. There are too many autocrats driven by business interests in power these days.

The lack of adequate public input is also a problem. The matter is somewhat comparable (albeit I'm reaching a bit) to the marijuana decision. The feds, shunting aside local support of a mild exception to our misguided drug laws, are insisting on upholding the laws against medicinal marijuana. This is a key matter about the dissent in the case from a few days back: it is not a matter of the courts superseding majority will per se. It's a question of what will to respect more, especially since the local ballot measures and laws (the decision basically mooted any chance for a New York proposal ... put forth by a Republican) are much more narrow. The individual issue was dealt with, not a broader one with a troubling application.

It then becomes but a question of federal vs. state power with the courts a reasonable place to serve as an arbitrator. Anyway, I didn't get a chance to vote on the stadium issue ... the fact it was blocked by the head of the NY Assembly was nice and all, but having such a major issue rise and fall on the votes of a handful of people is just a bit wrong.

Majority Opposes Those They Voted For

I am getting a bit tired about hearing reports about how low the poll ratings are of those who were re-elected by higher margins than two and four years before. It does not salve my annoyance that the people elected such threats to our national security and basic values too much that they did so even though they were not crazy about what they stood for. Apparently Kerry was sooo bad that Bush was better. Or, they liked the latter's tough boy routine, even if deep down they feared/knew it was wrong. This is depressing.

On the issues, the people do not support the one party rule we now have in place. On issues such as Iraq, the environment (evidence altered to fit the policy*), populism, the judiciary (if the stakes are properly stated!), and economic policy (opposition to "reform" on Social Security that was in no way truly debated at election time). This includes false rhetoric on democracy promotion in Cuba (but what about that boy?!) and appointment of a bully to represent the U.N., even if the guy is counterproductive to the President's own rhetoric (if not his bully boy nature).

The same applies to the corruption in the corridors of power. Surely, many think of "Watergate" as a blot on our history, except for ex-felon Nixon aides who now are badmouthing Mark Felt. A fuller understanding of the context is somewhat different, including the fact that events occurring these days are quite comparable. This goes down to campaign finance scandals of top officials -- "follow the money!" But, "If Watergate Happened Now With the GOP controlling Congress, there'd be no Watergate hearings."

The fact that the raw material for a revival of the progressive order (or a nation that doesn't embarrass its citizens) is heartening ... but it has been here for some time. As the loyal opposition tries to regain control and hinder the damage, those a majority basically oppose will continue to be in power. This is helped by districting in the House of Representatives and the Senate skewering Congress, but what is the excuse of those who voted for the President?

So, great ... the people on some level oppose these people. Meanwhile, we are still stuck with them.

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* Ah, the reality based community: "They've got three more years, and the only way to control this issue and do nothing about it is to muddy the science," said Eileen Claussen, the president of the Pew Center on Global Climate Change, a private group that has enlisted businesses in programs cutting emissions.

Medicinal Marijuana Case

GONZALES, ATTORNEY GENERAL, et al. v. RAICH (6-3) upheld federal drug policy that targeted state sanctioned medicinal use of marijuana that was home grown, not part of the stream of interstate commerce, and regulated by the state to avoid other use of the drug. The decision is an obvious matter of debate in the blogsphere with various viewpoints, including a defense of Justice Scalia's concurrence, over at SCOTUSBlog.

First off, the legislation is bad policy. Talk Left addresses some reasons including the fact that possession is less liable to get you into trouble than home cultivation, so illegal sales might be the logical thing for the medicinal user (such as the talk show host Montel Williams) to do. This, of course, clearly involves marijuana from interstate commerce. Also, one should support federal law that would make medicinal use an affirmative defense.

In fact, the majority probably supports such a policy. "But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress." In fact, the justices might be honored for their principled stance. The liberals (along with libertarian Justice Kennedy) followed doctrine, even when the policy choice might have troubled them. Ditto the conservatives, even though drug use was involved.

Some wonder why the majority did not say the same thing in Lawrence v. Texas (sodomy) though commerce is different from individual rights. The point has some bite to it all the same because one way to protect such rights is to restrain federal power. This is a core value of federalism, not just a means to advance racism. A consistent libertarian stance, especially when dealing with drug policy, has something going for it.

The supposed inconsistency of Justice Scalia was also on display (but see Ann Althouse in the SCOTUSBlog debate). As the previously cited conservative/libertarian voice noted:

Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude.

Justice Scalia is not as consistent and principled as some of his supporters seem to think. I think Althouse does have a point though, since Scalia really was never a hard core state rights advocate in respect to the Commerce Clause. He is a strict believer in state sovereign power, yes, including not forcing them to act. Also, he supports a somewhat limited view of Section Five of the 14th Amendment. Still, Justice Scalia is not on the level of Justice Thomas, and never claimed to be. Thus, his concurrence was pretty tame ... "nuanced" (to use his word) in fact. Not quite like him, suggesting this matter does not drive him too much.

As to the opinion itself, it is just not surprising. One might suggest it's because of the drug policy question, but again, the Supreme Court (even the Rehnquist Five) have not been hard core federalists when it comes to federal power. I'm not sure if saying they are only "symbolic" federalists is quite fair. They did seriously limit congressional power to protect certain minorities, including the handicapped and religious believers. And, it restrained federal power over states in certain respects, if somewhat narrowly. Nonetheless, a large opening was allowed, including commerce power. This is but par for the course.

Still, the overall principles of some its recent cases can be used to overturn this federal policy. Justice O'Connor's dissent does just that: the marijuana is locally grown and used, and the state regulates its use to make sure it stays that way. Surely, there will be some sort of leakage, but commerce power would be strong indeed if that is all it took. National drug policy opposes the recreational use of drugs, not state sanctioned/controlled medical use. But, let's take the slippery slope offered by the majority -- even recreational use that is purely local (a less narrow range of activity for sure) is not really the federal government's overall concern.

Justice Thomas dissented separately to offer his originalist take, which is interesting reading and all, but pretty besides the point. Two hundred years has passed and the evidence can be taken many ways. You are not going to do a major reworking of commerce jurisprudence, nor should one really try. Though it is no easy case (it is ultimately a policy misstep), it is better to take things as a matter of degree. This is overall is a local matter and should be left to the states. The fact that the states traditionally handled such regulation is of some interest as is the broad national power that result if the majority is accepted. But, the most compelling reason to dissent is something of a balancing test.

And, though not a matter immediately at issue, the overall liberty interest involved helps settle matters. One might even suggest it is part of the equation in determining if this is a "necessary and proper" use of federal power. The "necessary" part is quite debatable ... the "proper" part should factor in the liberty interests at stake. The majority noted that we have a federal regulatory scheme for medicine, but it does not mean allowing some use of the states as laboratories is not only allowed, but compelled by the constitutional scheme.

At the end of the day, however, the problem goes back to the policy itself. Unconstitutional or not, it is bad policy, and should be stopped or interfered with in any (reasonable) way possible. Let's hope that now that the government has their authority confirmed that they will not use it to harm too many people.

Reading and Viewing

Nectar in a Sieve was the first novel of the Indian author Kamala Markandaya. Though written in English by someone with an upper class upbringing, the novel eloquently tells the story of a poor village woman, who must deal with the travails of village life in a rapidly changing India. The passing reference to a "bioscope" suggests it takes place in the early part of the twentieth century, and the recent death of the author at age eighty might also suggest she spoke from her own experiences watching her country change.

The book is told in the woman's voice, the youngest daughter of a village chief, who had long lost much power to representatives of the English by the time her marriage was arranged to a poor tenant farmer. Nonetheless, the marriage was a good one, and she had little complaints about her fate. As so many tough things did befall her, Rukmani took the fatalistic sentiment that one had to accept life as it comes. Nonetheless, she retain her spirit, perhaps gained (along with an ability to read and write) from her father. Thus, the book -- along with an examination of the changes and hardships that added to the usual lot of peasant life -- is ultimately a vindication of the human spirit.

A story of one woman, peasant life in a changing India, a criticism (mostly through the voice of others, including a local white doctor, who helped her have children) of the wrongs inflicted on the poor, and a beautifully written one at that. This small book is a little gem on many levels, and I am glad that I happened upon it at the book store.

The Sisterhood of the Traveling Pants is not quite a movie aimed at my demographic. Nonetheless, the story of teenage girls can be viewed as a matter of cultural sociological study as much as that of peasant life in India ... the strange and complex world quite different from one's own is after all is present as well. Anyway, a good story performed by talented actors can be enjoyed no matter what the subject matter. The movie, which some sources say are fairly loyal to the teen novels, is something of a mixed bad. Still, it is generally a positive experience.

The movie concerns four very different teenage girls who are best friends due to be apart for the first time in what is destined to be a seminal summer in their lives. Before they part ways (to Greece, summer with a father, soccer camp, and one remaining home), a miraculous pair of jeans are found. Clearly some sort of metaphor, the jeans fit each of their quite different body types perfectly. They draw up a set of rules and decide to share the jeans over the summer as a means to stay united. The jeans also help them gain confidence, though they are not a panacea ... as time will show.

Each girl has her own little battles to fight, including a good amount of heartache (grieving for a beloved mom, dealing with a dad re-marrying, etc.), but also some romance. Though the tall blonde (mom) is a newcomer, the others have had some past success (Gilmore Girls, Joan of Arcadia, and the indie gem Real Woman Have Curves). They all are promising young actresses and do a good job here. The plot has some iffy moments, especially one involving a sick child (who, no matter the questionable plot device, is very good in her own right), but many very good ones. The love and friendship among the girls is clear and the emotions real.

One understands why this is a popular teen series. Just read those Amazon reader reviews!

Christopher Cox Nominated For SEC Chair

And Also: Yes, the Yanks can be swept by KC. Anyway, I discuss USA Patriot Act revival issues here. Also, this interesting column provides a personal example of the issues addressed in the worthwhile book The Riddle of Gender by Deborah Rudacille. In fact, she discusses a similar case, arising during the Carter Administration.

The free and efficient movement of capital is helping to create the greatest prosperity in human history," Cox told reporters at the White House yesterday. "The natural enemies of this economic marvel are fraud and unfair dealing.

Nice platitudes, but how will he stock up (no pun intended) in actually doing his job? Is "free and efficient" code for "less regulation, more freedom for an unbalanced economic system?" To continue from the Washington Post article:

The president formally nominated Rep. Christopher Cox to serve as chairman of the Securities and Exchange Commission yesterday, setting the stage for a dramatic shift in the agency's priorities, which over the past two years have been focused on new regulation and stepped-up enforcement.

Cox, 52, a Republican from California, has taken pro-business positions on many issues. He sponsored legislation that curtailed plaintiffs' right to bring lawsuits alleging securities violations and opposed a regulatory drive to treat stock options as expenses, fighting on the side of the technology firms that constitute much of his Orange County constituency.

Of some interest to me is the appointment of another politician basically friendly to the administration's point of view to an important position (see Porter Goss). The proverbial fox guarding henhouse, though he does appear to have the smarts for the job. Also, it seems the guy once wanted to be a judge, but Sen. Boxer was planning to block his appt. If so, times are a bit different.

General assumptions of a novice, but rubs me the wrong way all the same. Here are some talking points against the guy. This is just a run of the mill reason why it's a bad idea to have these people in power ... you know, even if they were not SOBs.

Deep Throat II?

Baseball: Will the Yanks be swept by KC? [Break the Yanks up, and you can build about five KCs with a TB to spare.] Does anyone care that Felix Heredia and Bartolome Fortunato are out for the season? [Didn't think so.] Will Zambrano (Mets version) continue to tantalize, or is he actually on track? And why has Chicago been on the tube so often these days?

Now, with George W. Bush in charge, the nation is mired in yet another tragic period marked by incompetence, duplicity, bad faith and outright lies coming once again from the very top of the government.

-- Bob Herbert

Some have noted that Mark Felt (I hate people with names shorter than my last name) might have be inspired to act or reveal himself for less than pure reasons. What else is new? Money and personal complaints is often important in such cases. In fact, John Adams wrote about how personal desire is a major influence on public action, including that of the leaders of our nation. This is one of those "oh shut up" moments.

Then, again, it is a bit amusing to hear cries of "traitor" from various right wing sorts, including those who worked with Nixon. This is not too surprising, after all, since the times are not too different from the days of Nixon ... with cover-ups, lies, war crimes, and the like. John Dean himself wrote a book arguing that the Bush Administration is "Worse Than Watergate." They surely, in a certain someone's own words, are "people that had been trained in some instances to disassemble - that means not tell the truth."

The Bushies have one thing at least going for them -- the lack of historical memory of a time when a time when criticism of those in power was not based on lies about sex or such. The rest of us are lucky that the 22th Amendment is around and that the likes of John Edwards and Wes Clark look to be active and game for another go around. They were, next to Dean (who in my heart I knew was not presidential material), my favorite candidates.

The U.S. military keeps a meticulous tally of its wounded -- 12,762 in Iraq as of Wednesday, along with 1,658 dead. Scenes of soldiers convalescing at well-equipped hospitals such as Washington's Walter Reed Army Medical Center are familiar symbols of the human cost of the war.

But more than two years after the U.S.-led invasion, there is little available data on the far greater number of Iraqi civilians wounded in the invasion and subsequent violence related to the insurgency. And few of the victims' stories have been widely reported.

But, then the stakes show themselves once again. After all, we just honored those who died fighting our nation's wars. My sentiments leads me to lean toward the non-fighting class, those like Maria Ruzicka, slain while doing her heroic work serving civilians harmed by war. Ruzicka is among those who we should honor on Memorial Day, those who died serving our country during our nation's wars. Both classes deserve our thoughts.

"No matter how many men were hurt, the furnaces must be kept going," says William Attaway in Blood on the Forge (cited in Music of the Mill by Luis J. Rodriguez). So seems to be the case with war. The blood flow seems but a part of life, "an eternal act which has grown beyond men's control." This is not really so, actually, and sometimes we have held back the dogs of war. At the least, we must respect its victims. And, aside from an underreporting of just how many of our own continue to rise in number, this includes civilians. Ruzicka's mission was to care for them, which she felt included having a clear accounting of their numbers and needs.

Asked Wednesday about the issue, Mr. Bush said, "It doesn't fit our budgetary process."

-- Bush Maintains Opposition to Doubling Aid for Africa

Meanwhile, our resources are spread thin, including our abilities to use forces and funds in other areas where it is necessary. One of my deepest fears is that some new emergency will show its ugly head, and we will not have the resources -- given how many was wasted and misused in the last few years -- to deal with the situation. So much was wasted already. Heck, to be a bit trivial, the chance of an Olympics in my local area has been harmed because of the distaste the world has with our government. O tempora! O mores!

Where is the Deep Throat of the current day? And, everyone else who helped us move past those days? Many of the old faces are back in power or still heard. Like Jason, they are back again ... cue the music.

Cutter and Inter-Branch Dialogue

Deep Throat: Not too much to say about the self-exposure of the famous source, except that it is not too surprising (both who it was and that someone 91 might decide to come clean). As to the ethics of the original sourcing, as noted by the reporters, he often was just a back-up. Also, the situation seemed to demand breaking normal rules. This is the name of the game when "whistleblowing" is involved. Sometimes "loyalty" is not warranted.

Cutter v. Wilkinson unanimously held (in the words of Linda Greenhouse) "that a new federal law requiring prison officials to meet inmates' religious needs is a permissible accommodation of religion that does not violate the separation of church and state." As Greenhouse noted:

The ruling marked the latest chapter in a 15-year dialogue among the court, Congress and the states over the degree to which the government may take religious interests into account in law or official policy. The statute in question, passed in 2000, is a direct outgrowth of that dialogue, which began with a 1990 Supreme Court case from Oregon, Employment Division v. Smith.

Cutter is an interesting example of how the courts tend to actually do their job as compared to the simplistic ways some might think they do. For instance, the ruling went out of its way to decide matters on narrow grounds, rejecting Ohio's broad argument that the First Amendment prohibits a federal law (in part via its spending power ... a question not addressed*) that specifically protects the rights of religious believers, especially in special state controlled contexts such as prisons.

Nonetheless, it was only a "facial" challenge -- the state might still win on the particular facts. [The presence of cases like a Aryan nationalist suggests the state might win some on remand.] Furthermore, even though the law requires strict scrutiny be applied, the opinion noted that the law also respects that special concerns are present in the prison context -- security interests, for instance, often would meet the test. This, it bears noting, is why some strong critics of such protections should chill a little.

And, in fact, even in the days when the Supreme Court itself honored a more stringent test for free exercise, the states were given a broader power to regulate in that area. The opinion itself notes the same applies when speech is involved, which it often is in religious exercises. The past also suggests the "dialogue" referenced by Greenhouse, an ongoing back and forth between the Supreme Court, Congress, and the states to determine the proper reach of religious freedom. The fact that the Supreme Court struck down RFRA did not mean Congress was powerless to try a narrower approach ... an approach that the courts might ease along by carefully dealing with possible pratfalls.

Such is the law -- a slow, nuanced dance, even when dealing with the emotional and potentially quite problematic matters seen in this case.

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* As noted by Justice Thomas' concurring opinion, the First Amendment bars laws "respecting the establishment of religion," not religion per se. The opinion also suggests the spending power concerns have merit, though perhaps Ohio's acceptance of the funds negated them. I don't know if this solves the matter, if one believes Congress has no power to fund this sort of thing in the first place. Voluntary delegation of powers one does not have is still illegitimate.

The concurring opinion is interesting, but provides the typically stunted view of the Establishment Clause put forth by its author. Nonetheless, it does recognize that Free Exercise Clause concerns might arise in cases of this nature.