Related Deals With Pregnancy Loss

RIP: Three stars of television (and the movies ... somewhat less so) in the '60s and '70s have died in the last week. It does appear that in the couple years, a lot of stars have died. Anyway, Don Knotts, Darren McGavin (Night Stalker), and Dennis Weaver (Duel; McCloud) all died within the last week. The alliteration barely needs to be mentioned. Good second level stars all, including yes, Knotts, who amused more people than some probably wish to accept.

[On the subject of cute WB shows, Gilmore Girls was actually good today, even though it largely concerned two characters that annoy me. Not great or anything, but a pleasant episode. Even Paris was not too much to take, which is hard since she has been so overplayed by now. I would add, fans will recognize this, the Paris/Rory relationship has such a comfort level by now it is striking.]

Before re-touching a past issue, let me comment on the latest episode of Related (WB Mon). After starting with another one too many romantic twist (back and forth ... except for the married one with the annoying voice), it went in a suprising serious direction -- the pregnant mom lost her baby. I fear when light entertainment tackles serious things, since it sometimes does not have the moral weight to take it. But, Related has shown some maturity among its standard fare, even if I wish the women were a bit more deep in certain ways. And, the episode was handled well, including the different ways the mom and dad handled things.

The episode also threw in another matter and did so in a nice low key way. The therapist sister goes in to try to "reach" the mom who drew within herself to be numb and we find out the sister had an abortion (the word was never used). The mom just could not take her being there at the moment (she had a choice, etc.), even though she admits that the choice was the right one for the sister. I simply do not know the last time the subject was handled with one of the main characters involved and it was said to be the "right" choice. A complication was that she had it at the beginning of her relationship with her boyfriend, so never told him. [She also is Catholic.]

This was hard for her, but again, it is not like (unlike the women in Sex in the City) she thought the abortion itself was simply horrible. Millions of women have had abortions. Apparently, the entertainment industry is ridiculously liberal. No taboos. Well, not quite. Ah, one should toss in Degrassi, but that is a Canadian show ... I had to ask someone to download the abortion episode, since it was not made available by the U.S. distributor.

Thanks Related ... as with the episode remembering the sisters' mom who died years earlier, you have some special moments and do them well. And, the sisters' father also shined in his few moments, while the dad who lost his child also was good. "Bob" is not a great name to our family, but he is a good one.

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As to the pharmacist issue, one thing that stood out upon reflection is that we let stores not supply any number of non-prescription items, both health and non-health required. Sometimes, when they do not supply them (certain literature, including unedited for content or somehow controversial), we are upset. But, we do not think they have legal obligations to submit. And, some of these things are fundamental -- certain over the counter items are necessary for our health while other items are necessary for our well-being. Certain groups find this to be the case when they read certain information about their bodies or people like themselves.

So, I am not sure why certain types of prescriptions should be singled out -- and requiring all is even worse, since many are less useful than over the counter items, just more dangerous. Consider certain prescription diet pills ... often not much different than the non-prescription, but you are telling me pharmacies should be required to supply one, not the other? Or, is it because we do not like the beliefs the people involved, some who oppose use of RU-486 on first trimester pregnancies clearly for non-theraputic abortions. Abortions clearly secured by law and necessary to the well being of many women, but clearly not free of moral implications. Morning after pills are less morally complicated, in fact, probably less so than many things sold over the counter. Why should the fact something is prescribed be the test?

My middle ground: a law that give individual employees special rights in this area is too messy -- a consistent conscience regime (one that just simply is not supplied, especially in this area) would be too complicated, even if employers should try to accomodate when possible -- but employers should have the option. The exception is when access to important drugs (and in some states, line drawing is a factor) would be threatened when this occurs. In rural areas, where Walmart is favored, this will sometimes be a factor. But, in many cases, it simply will not be. And, this might not only affect pharmacists ... those important non-prescription drug items, you know.

Some might not trust some of these areas to truly protect access. But, again, pharmacists only are part of the problem. And, a basic interest is at stake here: an evenhanded respect for conscience, one that guides many who are demanding access too. They too are making conscientious choices, choices that the other side might not respect. But, the law currently does (except, of course, when its doesn't -- such as funding issues), and we must point this out.

Consistent moral respect is a fundamental interest in society ... one that just might hit you in its absence. And, it is not a free lunch deal. Freedoms have some cost. Dealing with Walmart in some cases just might be one of them.

Lemons Out of Lemonade

I live for this stuff: Bringing back my House DVD, I overheard someone mention a "house" ... I also kinda love bad puns. ["Yes, it's a Hail Mary, but, when it's 4th and a hundred, you don't call a running play ... except if you are the Jets."]

There have been various accounts explaining how it actually is not inherently bad that there is evil in the world, thus dealing with the perennial questions respecting God. Since we mere mortals are said not to be able to understand all of said creator's doings, maybe the problem is that we ala Job are being a bit too full of ourselves. Darn logical musings!

Seriously, my sense -- for what it is worth -- is that bad things are not somehow inherently valuable. I think we can survive pretty well without some of the horrible things out there. The best we can do is use them to our advantage, the best we can. Thus, no, let's not explain to the family member that the fact some heinous soul raped their daughter is you know useful somehow since pain is uplifting or whatever [link to eloquent Narnia source-like descriptions of concept]. No, take what you can to allow them to survive it, and know that we are hot wired to take a lot of shit.

And, yes, along the way, some good will be done. A lot of human spirit is shown in the worst of times, which is a good thing. Not really a justification for the problem, but a way to live through a life that will have enough bad things so that such defense mechanicism are going to be necessary again and again. The thing works writ large and small. You miss your daughter's recital, but on the way back, you find a nice little gift while going to the store (where you would not have gone, if you saw Samantha sing her heart out) that she loves. Little things like that actually are nice ... go with the punches. Miss a certain train, go home a different way, get some Chinese food. Don't stress too much, it will work out more than not.

Writ large, it's harder, but it is roughly the same -- just on a different level. An aside. The NYT Magazine yesterday had a piece on a young man that was a spokesman for the Taliban before eventually winding up at Yale. The journalist who got him there once told his peeps that yes, man is related to the dog, a creature (consider this given their use in Gitmo) seen as distasteful to the Afghan culture. And, he spelled out various similarities, such as the location of the eyes and so forth. Connections on a certain level of generality, but connections all the same. I like that -- it's how I try to see things, a way to understand things and people that do not share my beliefs and life style, but on some basic level is like me. Thus, I respect the moral beliefs of those who I oppose -- they might not do the same, but then people who share my own do not always reciprocate either. Connections, you know?

The immediate application of this sentiment, not quite as profound as the example listed above (though, sadly, on some level, not really), that brought up this philosophizing is the current political situation. I think it is a warning of what happens when we relent, we forget certain basic norms that should underline what our political leadership should follow. In other words, it is a wake up call, even if it is akin to using an air horn instead of an alarm clock. On that level, Laura Flanders last night had a point -- in '04 a certain upstart Dem with progressive instincts received 44% of the vote against Henry Hyde. He's retiring, so the seat will be open ... but, instead of supporting this grass roots/resident again, the PTB (and the junior senator from Illinois, if not Howard Dean) is supporting Tammy Duckworth, a "fighting Dem" who never lived in the district, is a first timer, and is more conservative overall.

Is this the way to win? Ditto Paul Hackett. Yes, it looks like he might have been a bad candidate -- his close race in a special election last year in my view was overblown by some (everything was in his favor and he still lost ... against a hack), and hew as more symbol than a credible senatorial candidate. But, by pushing him out, the PTB in the Democratic Party made themselves look bad. Some real life voters felt cheated while the Republicans smiled. Now, Sherrod Brown looks to be a great candidate. Fine. Let him win a primary. Did they fear that Brown would lose against poorly funded and supported PH? This heavy-handed style (including by my self righteous senator, Chuck) just plain rubs me the wrong way.

Anyway, it's not morally uplifting in the abstract or anything, but let's take the lemons and make lemonade. Rightly sweetened, it is a yummy drink chilled.

And Also: I just heard on the radio that there are now some "strict" guidelines respecting rebuilding at Ground Zero. Yes, sure, not much longer than five years, we mean it! A Knicks winning season will come before they start something down there. It's depressing, but hey, I guess while it's a big hole, it's easier to use as a cheap political motif.

A bit more on the Cass Sunstein book referenced yesterday. One thing that annoyed me was his claim that Nixon barely won in '68, so the Warren Court jurisprudence that secured parts of his Second Bill of Rights easily could have continued in most senses of the word. Nixon did received about one percentage more of the popular vote, the first of several plurality presidents in the last forty years.

But, Wallace got the balance of the vote ... over ten percent ... and surely his voters mostly were Nixonian. See also, CS' claim (with others, on both sides) that abortion rights were just about to be nationwide when Roe came down.

Good Night, and Good Luck

And Also: I discuss the lethal injection protocols referenced last time here. But, perhaps more interesting, here and here supplies some perspectives from those in the pharmacy industry.

We will not walk in fear,* one of another, we will not be driven by fear into an age of unreason. If we dig deep into our history and our doctrine, we will remember we are not descendant from fearful men. Not from men who dared to write, to speak, to associate, and to defend causes that were for the moment unpopular.

-- Edward R. Murrow.

Sarah Vowell is filling in as a guest columnist in NYT as is a welcome sight -- as usual, the guest columnists are better than the ones they replace. Anyway, she commented on Good Night, and Good Luck, which I never watched, partly in fear of some sort of historical inaccuracies (though not that familiar with the immediate events) and partly that it would be a bit too didactic.

Historical films are rarely really fully accurate, and on some level cannot be because of restraints of the medium, though some probably can be more than the norm. [See, Past Imperfect.] But, this one feels right, down to its B&W film and music selections. And, the acting hits home. My problem is that it is a bit too good to be true ... it really is a bit too black and white. Everyone is basically a good guy, except for Sen. McCarthy. Some, like the main press guy at Slate, criticized some of the history of the film. And, probably that might be open to some, though I'll let people a bit more familiar do so. My problem is that it did feel a bit didactic, though the real life fear of the age plus the flavor of the main characters shined thru.

It was quite a feat for George Clooney, who also co-wrote, also seen in another "politics in film" piece -- and nominated for it too -- Syriana. I really don't want to see that ... maybe, one day, like Sarah, I will see one of them on a plane. No, probably not. Anyway, (GNGL) definitely worth watching, and deserving some notice at the Academy Awards.

On the way down, I found part of yesterday's paper (NYT) ... some good things. The beliefs section referenced abortion, in particular the greatly divided stance of high school students. One should take with a grain of salt beliefs as to personal morality, since things change when it hits you. Still, good stuff. It touched up William Saletan's (greatly criticized in certain parts) editorial of a few weeks back, noting that "abortion is bad" is vague. Bad like chemo or child labor?

In other words, sure, it's not "good," but saying it's "bad" can be misleading, and in fact easily abused by the other side. This is why ... the clueless aside ... why abortion rights sorts are loathe to use it as their new motto. You know, "hey, we know it's terrible, we need to get rid of it, but for now, it's a necessary evil!" Also quite popular with gun supporters.

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* I also recently read The Second Bill of Rights by Cass Sunstein, which promotes the social and economic rights promoted by FDR, and makes some good points on the connection between so-called positive and negative rights. The government has to positively protect property. Also, between economic and political rights: want deprives one of the liberty to properly enjoy our rights.

But, Sunstein accepts that at some point fear for security -- here respecting things such as health care and the like -- also is a problem. It would weaken us our a people. Of course, the same applies to the other fear for "security" -- the Bush sort.

Fill That Script!

Junior Senator from Il: "I think that the Democratic Party should stand for economic policies that give opportunity to all people, a foreign policy that's tough and smart and a vision for the future that combines individual responsibility with a sense of community."

I rented a DVD of House, the television show, and noticed the end of the opening montage has the "team" of doctors walking down the hospital hall in the same basic way they do in the court house in Law & Order. The show concerns the team basically solving medical mysteries, so there is a sort of a connection ... the similarity is surely not coincidental.

"Death and Wal-Mart: Pharmacists, physicians, and the right of conscience." And, now to reality. This Slate piece connects two facially related, but not quite the same, recent controversies. One involves California not being able to execute someone because they could find no medical personnel to take part in the protocol deemed necessary by law -- the AMA not surprisingly frowns upon this sort of thing. Meanwhile, Walmart and other pharmacies are claiming the right for conscience reasons not to sell RU-486 and so forth.

Timely, since an appellate decision just struck down as overboard a state's rejection of a protocol allowing its use past what the state law allows. It noted that the FDA does not deal with off-label use, since the state deals with medicine generally ... Congress should be reminded about that re partial birth abortion. Anyway, the pharmacy want not to sell "abortion drugs" because they think it kills (or their owners do) a person. The drug is allowed under this protocol up to 63 days, so the claim isn't laughable. It just clashes with a woman's right to health. Surely, to the degree the state can protect it.

And, the pharmacists aren't quite medical personnel directly killing adult death row inmates. Different degrees here, even putting aside the fact the law doesn't recognize the personhood of those embryos. Still, the claim is not trivial. The American Pharmacy Association "recognizes the individual pharmacist's right to exercise conscientious refusal and supports the establishment of systems to ensure [the] patient's access to legally prescribed therapy without compromising the pharmacist's right of conscientious refusal."

And, as the APA suggests, pharmacists are not just pill suppliers. Sometimes, there are reasons for them to not supply certain drugs, or at least, advise the customer not to use them. Yes, they don't have patient/client confidentiality or anywhere close of a relationship. So, in this case, sometimes the woman will be using emergency contraception while not even being pregnant or will need it for serious health problems.

[I find the APA's position as pretty relevant, but I do not recall it being included in various stories on this issue. It probably was somewhere, but it is telling all the same ... too often some news story lacks some significant fact that is important to me. In fact, one message board discussion of this issue implied pharmacists have an ethical obligation to dispense these drugs per their own bylaws. But, this is not true, apparently.]

But, as the APA testimony notes, it is not an all/nothing deal. A way can be set up where the woman still obtains the drugs ... just not there. If this is shown to be a risk for the patient/customer, adequate supply of medicine might require licensed pharmacists to be required to supply the drugs. This will be iffy though in large urban areas -- my own neck of the woods has plenty of suppliers, so why should one or two not be able to choose not to sell?

Direct involvement in execution is not the same as indirect involvement perhaps in a non-therapeutic abortion in early pregnancy. Clearly. But, conscience clauses are not backed up with nothing either. A pro-choice person can recognize a pro-life person has different views. So don't go into the pharmacy field, s/he says. Oh, where will that stop? Any number of fields will force people to go against their conscience now, even if a means can be set up to supply an exception.

After all, maybe that police officer will be needed on the Sabbath. Sure, ten others, and he is willing to work on Christmas. But, he has a stupid belief, and who knows, maybe someone will be stabbed. And, he is willing to work if their is a state emergency, right? No absolutist he ...

Poor example? Oh, there are others. Comparing lethal injection to dispensing RU-486 and morning after pills (especially the latter) is lame, but denouncing conscience clauses as totally dumb for the latter is a wee bit lame too.

Ports and Skating

And Also: I put an extended reply to someone who disagrees with me on the final bit included in the last post. Simply put, if the alternative I raise is troubling, I say "give me something else," since the current calculus doesn't cut it for me.

Port Deal: A Republican noted that the ports deal is a good business decision, but was carried out with lousy political acumen ... paraphrasing, but that was the point. And, it is at least half the problem, and damning enough. We have leaders who cannot lead. This is troubling.

Oh, and Charles Krauthammer is really showing himself as a shill of late, including an editorial admitting "yes the deal shouldn't have been made, we have reasons to be concerned, but hey, I'm going to say the Democrats are just being cynical hypocrites for saying the same thing." What grates particularly is his phony self-image as a realist while feigning shock and disgust for political opponents taking advantage of the situation. But, is this not the whole point of our system? A system of checks and balances in part secured by the "outs" checking the "ins" because of personal interest? CK knows this, but is a shill, so cannot admit it.

Olympics Again: I caught a bit of the Olympics last night. First, after a favorite sports talk show, there was the audio of some of the women figure skating. This was at 11 P.M. ... after various 20/20 (every twenty minutes, the station supplies sports updates) telling me the end result of the slip-up that led to only a silver. It is not only a problem of the WFAN NY ... teases on television apparently also basically let the cat out of the bag. The perils of Italy live action, I guess, but what is the value of having Olympic audio if you ruin the ending?

The NYT today underlined that the Winter Olympics targets only a limited audience, since even more popular sports like hockey (not helped by an early U.S. exit) has a small demographic. This is so even if Due South praised the wonders of curling aka Men with Brooms. But, what else really is on? Just one more subpar television experience. After all, how much skiing can one take? The NYT was partly right -- they could make it more accessible, but inherently, the games are not too exciting to watch. After all, watching baseball/football straight thru is often a bit much. Hours of this, especially in tiny increments, is a bit ridiculous.

Still, I did catch two routines of women figure skating, and it is pretty amazing -- if quick, even the long routines. Silvia Fontana, the Italian home girl, was emotional for just having a chance to return and skate in her own country. And, Tugba Karademir was Turkey's (two official rinks in country) first Olympic figure skater, a late fill-in. Neither were close to winners, but more importantly, had good stories. And, no wonder the silver and bronze messed up -- darn the pressure those women (girls often) are under. Try to do those routines! Not bad on the eyes either.

Smoking Gun Tasteless Dept: Anyway, this might be deemed a bit much, but within limits something akin to it might be fun. [This reply suggests that this might be seen a bit flippant, but my first impression was "this guy is nuts" ... still, something like this consensually done probably is tried by some people. This seemed to be the general sentiment of other blogs commenting on the case. I guess the reply has an 'eye for an eye' feel. It also is probably in better taste than this account in my own paper. The part about her being married "for better or worse" ... a bit tasteless.]

Yoo Idiot

Sometimes, it is hard not to scream. I mentioned in my "idiot" post that various panel discussions concerning legal matters have been on C-SPAN lately, including those with John Yoo. And, this guy is getting a lot of exposure, as shown by a debate of sorts in which he faced Peter Irons (liberal law professor) ... Irons is an older gentleman and probably a peaceful sort, explaining why he did not punch Yoo is the nose for promoting executive monarchy. Yoo was on a panel of international law and was again on in a solo performance for the Heritage Foundation, introduced by Edward Meese. He was in other words with friends, suggesting why Yoo was able to put forth loads of B.S. without response.

I caught only a piece of the thing, but it was enough for me. Yoo argued that there were various limits to the President's claims of national warrant tap power, all meaning little or nothing in practice. The courts can use the exclusionary rule to keep any information obtained from being used. The administration does not really believe in trials, so this rarely will even be a possibility, and does not cover the concerns of ordinary citizens that they are being targeted.

Anyway, along with the possibility that Congress can remove funding, how likely is this to occur in practice? As to the funding issue: an illegal and unconstitutional policy can only be stopped via not only more legislation (difficult) but veto proof at that (fear of veto, and so forth, will result in some half-assed solution). Finally, there are the so-called Bivens suits, civil damages. But, the whole thing is secret -- people don't know they are being targeted, which is partly the whole point of secret FISA points. So, how can they sue? Executive secrecy has been upheld repeated, even if in the process civil lawsuits cannot be carried forth.

Yoo, maybe this is projecting, seems to be an unpleasant character. As with Alberto Gonzalez, he appears to be a quite smart cookie, who has used his knowledge to be a lackey and promoter of injustice. Also, he comes off as a bit of an asshole. Finally, I read a piece of his in which he feared that current law has developed to give Congress too much power, the Necessary and Proper Clause in particular run riot. But, one man via vague and if anything originally understood limited phrase, well nothing to see here. He needs MORE power. Intellectually bankrupt ... should be nominated for a judgeship sometime soon.

Meanwhile, here's an essay more up my alley.

Port Deal

More Kevin Drum: "And in other state news, South Dakota is about to ban abortion in the hopes that John Paul Stevens will die soon and a new George Bushified Supreme Court will uphold their shiny new uterus regulation legislation. Yet another reason not to bother taking a vacation to see Mount Rushmore."

The issue is "how should Democrats respond now?". There are several possibilities: (1) Agree with the xenophobes; (2) defend Bush from the xenophobes; (3) ignore the issue; (4) pivot to issues other than those raised by the xenophobes that this action raises.

So says a comment on one of Kevin Drum's posts on the UAE controlling port operations controversy. True enough. There is a good argument to be made that xenophobia is part of the controversy, and your respectful leftist anti-Bushie sorts are making them. And, I actually am sympathetic to those who suggested there is less here than meets the eye, putting aside the political fun. It is interesting that Drum referenced comments from all the port operators except New York. Are we chopped liver?

Anyway, four issues are involved: the law, cronyism, safety, and public opinion. A look at the comments suggests the law might not have been clearly followed, but on its own this does not shock, does it? Anyway, a core issue raised is the time period for review, which is not 45 days ... but within that amount of time. Congress also apparently is supposed to be notified in some fashion. This seemingly important provision -- consider NSA -- has not been emphasized. As to cronyism, the leftist suggests that is a red flag. How about safety? The fact that Rummy didn't know about it until last weekend also seems troubling. One responder claiming some special knowledge argues:

Port operations means scheduling ships, loading and unloading, operating cranes, providing fuel, and otherwise handling product (mostly containers, these days). Most of the containers are sealed before they're put on a ship, and Customs (not port operations) inspects about 5% of them. Those containers are then put on trains which may belong to foreign corporations, are offloaded in privately owned rail yards (in the city where I live, our choices are the Burlington Northern or the Canadian Pacific) and often picked up by immigrant truck drivers to be delivered to their ultimate consignee.

Although the culture of a port operator would affect efficiency, it would still be very difficult for the company to have a serious effect on national security.

I'm with another person on the thread -- surely this has some effect on national security. Sure, given governmental control and all, not as much as some might think. But, consider a security guard -- he a small cog and is overseen and has to follow set guidelines. Still, significant person, one who in day to day affairs really acts independently. Another person notes that we have had some real concern with UAE, even if they apparently are on board on the War On Terror. I assume so is Saudi Arabia. All the same, given their past, it is not irrational (or racist) to re-consider supplying them the contract. Also, the general sentiment that we should use this to bludgeon Bush et. al. for not adequately funding measures to deal with port security is fine. The idea that every single port matter will be under government control, however, is dubious.

As to politics, how amusing. The Bush Administration appears to look stupid here -- though I think giving the actually fearful Republicans in Congress a means to distance themselves from them in mid-term election has a "crazy like a fox" flavor to it. John Dickerson over at Slate suggests they look at the "long term" -- in the long term we are dead (out of power).

In the related area of public opinion, this also looks stupid. Let's say the two dissidents above are right ... Bush actually is right here (well, somewhat) ... clearly having it come out this way is ridiculous. The deal is clearly sensitive. If nothing else, Republican leadership sorts should have been warned. And a veto? Apparently, the torture measure was too stupid even for them, and they do not like to ever to admit they might be wrong. Interstate commerce? Heck, that isn't Congress' job is it? A difference of opinion that bipartisan congressional decision-making should determine? Funny!

It is notable too that Bush says we should trust the UAE, but not Congress or the courts (NSA matter etc.). Also, civil liberties, not worth it, but free trade? Most definitely ... cannot risk that! Anyway, since Bush was reportedly not involved in the actual decisonmaking here, he really gets no credit overall. More here.

Joe: Idiot

And Also: Doonesbury had a striking tidbit recently in which BD references to his VA counselor that his mom was overly concerned about his safety, thus required him to wear headgear from infancy. This puts a major spin on thirty years of strips in which he always wore a helmet. The BD subplot btw is striking ... one memorable strip is when the receptionist calls him “sir” and he wonders why, since he is no longer active in the military. She responded that given his long service, it would be remarkable if she did not speak to him with respect.

[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to ... hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.... The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.... We must consider what the country has become ...

-- Justice Holmes

This (along with the appropriate quote from the national bank case written by Chief Justice Marshall about a century before) is one of my favorites respecting the true nature of the U.S. Constitution. And, it is one that I first read before I began writing online about these issues. The first time might have been in a nifty little volume by Laurence Tribe and Michael Dorf (who is a regular contributor of the equally nifty Findlaw website essays) on constitutional analysis entitled On Reading the Constitution. It was one of the times -- less than I should -- wrote notes. Here is my summary of their guidelines on reading [vs reading into] the Constitution:

(1) Framer’s Overall Philosophy -- example includes property protections such as the takings clause: these presuppose the existence of private property also rejects the idea that socialism is included in the equal protection clause

(2) Precedent -- it is always a good idea to lay a foundation of precedent, even when going into new directions of constitutional law; the model here is the common law method

(3) Integration without hyper-integration -- though there is no one unity (different traditions like federalism, tradition, democracy, etc. is actually a plus for its complexity), various parts do combine into wholes such as privacy.

[Tribe, by the way, was recently on a panel shown on C-SPAN that dealt with the constitutional interests involved in the current “War On Terror,” one whose general sentiment was that the Bush Administration is a threat to basic constitutional norms. It was one of many legal panels recently on the network, including one on international law (John Yoo again showed his face) and an admittedly boring one on yesterday’s orals on the Clean Water Act cases. A quite useful resource -- a regular “Supreme Court Watch” show should be on ... it actually was on Court TV a few years back with a chipmunk cheeked cutie as one of the reporters. Not blonde either!]

Anyway, this whole matter came up because of a recent speech [cited last time] by Justice Scalia in which he continued his jeremiad against the “living Constitution.” Clearly playing for the cameras, Scalia called those that did not agree with his opposition to this concept “idiots.” Since Scalia opposes school segregation, a concept deemed by most (though not all, but surely the test is general consensus) of the Framers of the 14th Amendment to be constitutional, he too is an idiot. As am I, so I welcome you to the club, Tony.

Anyway, he called himself an “originalist,” which is nice and all. It also is bogus, since Scalia is as concerned with “tradition” (which is not the same as what people at the time believed), clear statements, and certain personal biases. Someone mentioned to me his basic belief that originalism is totally phony, which is not my own philosophy. We should have some concern for what the original community understood about the Constitution, which suggests why even critics of the philosophy oftentimes cites the thoughts of Madison et. al. (we have a limited view of things; put aside Hamilton and even Adams ... it is like the Framers can be counted on one hand).

But, Scalia’s lame ass simplicity warrants scorn. A major reason is not just because it is false. It also is because it confuses the public and in fact directly misleads them on what actually occurs in the courts and society itself. We the People are not quite that dumb, surely, and instinctively know that our Constitution is no static instrument, but one which has terms that develop over time ... to fall back to legalisms, it is a “common law” Constitution, as one writer quite aptly put it. And, this is what was originally intended. So, ironically, it is quite “originalist,” properly understood. Anyway, this caricature Scalia, in no way as simplistic as his actual opinions (though he does encourage it sometimes), is a mockery of reality. He should be ashamed to promote it, but tenure gives him -- like Ward Churchill -- the right to B.S. without much harm coming to him.

Talking about confusion, I linked a Scotusblog post reporting the announcement of a fairly important religious rights case involving a small group that wanted to use a banned substance in a religious ceremony. The post supplied the actual opinion, a fairly straightforward one, which nicely summarized current law. Current law holds that the Free Exercise Clause does not require the courts to individually examine laws with a general reach, those that do not specifically target religion. Nonetheless, a federal law (RFRA) -- which the Supremes have held (I have mixed feelings about this*) cannot be used against the states -- set forth a stricter test.

Only this statute, not the Constitution, secured the small sect’s rights in this case. However, wire reports did not specify the fact, just saying the Supreme Court held the government could not block their rights. Given the importance of congressional action here, this is troubling. Dorf and Tribe noted that Jefferson counseled Madison that judicial review was an “auxiliary precaution” against tyranny.** And, this very case in miniature suggested this, since a tiny minority was secured ... just as a more protected one (Native Americans using peyote for similar reasons) currently were.

Nonetheless, and I believe this must be emphasized, the courts are by no means the only group that does this. The people and their representatives have quite a major role. In fact, Religious Liberty in America (Louis Fisher) argues that “political safeguards” are even more important than the courts to secure religious liberty. And, he is often quite right. The times surely suggest this to be the case writ large ... the question will remain if the people will truly understand the matter come election time. Or, will trivial matters -- such as Republican opposition to Bush on this port deal -- yet again decide the day? I am sadly unsure.

Oh, today’s the anniversary of the Miracle on Ice vs. the Russians. The movie version with Kurt Russell is excellent.

---

* I am no fan of Oregon v. Smith, which put in place the “general applicable law” test, a rule that basically overturned fifty years of free exercise law harking back to the days of protecting school children from forced flag salutes. That very case, however, opened up a supplementary security, namely so-called “hybrid” interests. The salute case, though concurring justices focused on religious freedom, is often seen as a freedom of thought case. [Religious speech and association has received much attention of late, sometimes in opinions that forget that the First Amendment treats religion different than other matters ... including when speech (e.g., a prayer) ... is involved.]

And, this very case can be seen as an equal protection case -- why should peyote receive special protection? The ruling suggested the government’s interests were debatable, so the “compelling interest” test of the statute was not met. I would argue the discrimination was in fact basically arbitrary. Anyway, applying the law to the states might result in too much micromanaging, so perhaps a healthy respect of religious equality and so forth will deal with most serious state violations of religious freedom. Justice Alito might help in this department.

** A recent Slate fray discussion suggests that various progressives are not big fans of Jefferson, seen as hypocritical and not respectful enough of judicial review. As I noted at the time, this is a bit exaggerated, and suitable criticism need not slip into hypercriticism.

Judge Material vs. The Principled Conservative

Supreme Court Watch: Underlining that the Alito confirmation was not about abortion, the Supremes accepted a partial birth abortion case the first day they returned to work after Alito was on the bench. Also, unanimously, it struck down a ban on the use of drug laced tea, holding RFRA protected its religious use. The ruling was brief and straightforward, in part comparing the ban to the allowance of peyote. CJ Roberts promises to be a clear draftsman. Meanwhile, Scalia continues to be an idiot or play one in public.

Item: "A Republican aide familiar with the Judiciary Committee's schedule said that it is likely to hold hearings for D.C. Circuit Court nominee Brett Kavanaugh and 4th U.S. Circuit Court nominee William Haynes after finishing work on immigration."

Ah yes, William Haynes, who the administration and their allies wish to have join Judge Bybee as members of the federal bench that had direct involvement in furthering our inhumane and criminal detainee policy. Repeated opposition will not stop them.

Assumingly, there are not enough conservatives such as the one discussed in a recent New Yorker article:

"Never has there been a counsel with more intellectual courage or personal integrity," David Brant, the former head of the Naval Criminal Investigative Service, said. Brant added somewhat cryptically, "He surprised us into doing the right thing." Conspicuous for his silence that night was Mora's boss, William J. Haynes II, the general counsel of the Department of Defense.

For those who rail against "liberal" critics of the administration's policy, let us put forth people like Alberto Mara, "a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee." One of a number of heroes who tried to do their part in upholding the values of this country and the country they served. Mara is no minor character, but the outgoing general counsel of the United States Navy. He notes:

[Cruelty, not just "torture"] destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as 'unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles. It's a transformative issue."

Back to Haynes, whose connections to Cheney are clear: "In confronting Haynes, Mora was engaging not just the Pentagon but also the Vice-President's office. Haynes is a protégé of Cheney's influential chief of staff, David Addington." Of course, on the detainee treatment matter Torture Czar / Attorney General (and chief bottlewasher) Alberto Gonzales is also part of the mix.

Anyway, Mara warned Haynes (who referenced the matter to Cheney) that the detainee policy amounted to torture and broke the law. Unlike Yoo and others, he did not think the President had the authority to uphold such a policy. Haynes did not just disagree, he made Mara think that Mara's general views were being respected. That a more torture friendly policy was rejected. We the people could not be trust with the truth, but nor did the general counsel of the Navy. And others worried about the policy. Those worried about things such as:

Qahtani had been subjected to a hundred and sixty days of isolation in a pen perpetually flooded with artificial light. He was interrogated on forty-eight of fifty-four days, for eighteen to twenty hours at a stretch. He had been stripped naked; straddled by taunting female guards, in an exercise called "invasion of space by a female"; forced to wear women's underwear on his head, and to put on a bra; threatened by dogs; placed on a leash; and told that his mother was a whore. By December, Qahtani had been subjected to a phony kidnapping, deprived of heat, given large quantities of intravenous liquids without access to a toilet, and deprived of sleep for three days. Ten days before Brant and Mora met, Qahtani's heart rate had dropped so precipitately, to thirty-five beats a minute, that he required cardiac monitoring.

What this all wrought is spelled out in more detail here.

Of course, no mistakes etc., were made. Oh, darn, wait ... Oh well, so many eggs break to make an omelet. Perfect judge material.

Foolish Consistency ...

The end of the Dish Network spectrum involves educational programming, generally provided by various university channels, and I happened upon a talk given by Al Gore about environmental issues. This is his thing, of course, but it was a pretty good lecture. [Gore included a few neat shots of the Earth from space, included a time lapse view of it revolving.] Ah, what might have been, what should have been. Anyway, apparently when your chance to be President is stolen from you, you eat a lot of ice cream. Or, something ... the guy surely gained some weight, didn't he?

Meanwhile, now that the Cheney matter is winding down, the fact that six major ports will be controlled in large part by the UAE is the new controversy. Michael Chertoff -- who, sorry, is a bit creepy -- defended the move, but it has bipartisan opposition. The UAE is known to be friendly with anti-American groups, so such opposition to foreign control of a matter central to domestic security (akin, I guess, to if France was involved) is not surprising. The matter was addressed in the blogosphere before now, but it is now front and center. Useful, even though so many accounts have the oh so tired "he said, she said" (some say ... others are upset ...) stenographic view without actually supplying press context.

[Book Recommendation: War Made Easy: How Presidents and Pundits Keep Spinning Us to Death by Michael Solomon ... well, no sports to watch, so why not?]

A sort of double standard is in place ... those with anti-American sympatheties can control our ports, but democratically (but it was a close election! hmm, that doesn't work here, or maybe it does?) elected Hamas leadership should be pressured (though the Bush Administration is understandably loathe to be too obvious about doing so). In fact, kept from coming in power, if possible. The scary message this sends ... the matter leaked to the media last week ... is clear. Foolish consistency is the ... Or rather, consistency that interferes with our national policy. Democracy only for those we like. They are bad people? Well, if that is your test, watch out. People in glass houses ...

Meanwhile, analysis appears to mean to some key national leaders to mean "avowedly conservative analysis." Facts are such pesky things.

Sophie Scholl

And Also: Slate touched upon the additional Abu Ghraib photos released by a few outlets a couple days ago, supplying some links. Of particular note is the link to the actual Australian news program that was the center of it all. It bears watching.

Although they actually accomplished little (obviously they had no realistic chance of accomplishing very much from the outset), the White Rose students serve as an example that not all Germans blindly went along with Hitler.

-- from background of original White Rose Society

The White Rose Society is the name given to a group that supplies downloads of liberal radio shows, including two from Air America.

It originally was the name of a tiny anti-Nazi movement, so you see where they are going with this. It is always dangerous on some level to compare things to Nazi Germany, no matter if done in support (anti-Saddam) or in opposition (anti-Bush) of the war and so forth. Nonetheless, the symbolism of reckless fascism, the need to stand up against it, and so forth does easily call to mind such things. For good or ill.

The story of a small group of anti-Nazi students and their supporters is clearly a striking story, one filmed a few times. The most recent account -- aided by additional documentary material -- has been nominated for Best Foreign Film. And, Sophie Scholl: The Final Days (Germany) is well chosen. It is a striking portrayal of the final days of a brother and sister involved in the movement, mainly through her eyes, and using actual transcripts and such. Knowing their final fates makes things that much more difficult ... or philosophical ... to watch.

The website provided above provides additional background of the story, which a lot deeper that the last five days of the lives of the participants referenced here. It is also recommended to add some context. But, the film works on its own as well. The final question is: would we be able to stand up for what we believe in, push comes to shove? Or, would we -- like various people in the movie -- have reasons not to do so, even if we knew the problems with that path? The choices of a few are well portrayed here.

The movie takes place in early 1943. Thus, the question is largely rhetorical. I also recommend the movie Downfall, another German movie portraying the final days ... this time of Hitler himself. It was one of the best movies of 2005.

Various

Videos: Hitchhiker's Guide To The Galaxy was pretty good with a Monty Python-like feel at certain points and a cute "extra" concerning one of the bits from the movie. Also, as to television, House was good again this week.

[Edited for your satisfaction.]

Winter Olympics: Don't really care about them. I am not alone, which was why the hotdogging of one Olympiad (cost her the gold, got a silver) was probably fixed -- they needed some controversy.

OTOH ... Bryant Gumbel's did say something about there not being many blacks in the games, leading to controversy for those not focused on the fact that a local reporter had his foot run over by George Steinbrenner's golf cart. [I speak of those on NYC Sports Radio.] It is not shocking, by the way, that winter sports do not have many blacks -- surely, they ski and all etc., but the environs that favor such supports tend not to be areas with a lot of blacks.

Another news flash: basketball has a lot of black people, while hockey does not. By the way, what is this business of professional hockey players being in the Games anyway? It is like some sort of scrimmage -- the NHL splits up to their corresponding countries. Anyway, pitchers and catchers have reported, so we now have the official beginning of the baseball pre-season. Oh, and Jose Lima is back in the NL, fighting for a spot on the Mets roster and a chance to act goofy along with Pedro at the games.

Congress Do Nothing/Asshole Watch: Sen Roberts, he of the non-existent report on the abuse of intel before the war, has decided that we do not really need further investigations on the domestic spying controversy. After all, a "fix" is in the works that will give the President ex post facto right to violate the Constitution.

Meanwhile, the House will have an investigation, but not exactly on what actually is so controversial. The "asshole" also focuses on the senators who warned their colleagues not delay the Alito vote because they had to focus on the wiretapping issue. You know, the issue that there was bipartisan agreement on that something seriously was done. Full of shit.

[I see now that Roberts has gotten some heat and appears to be trying to figure some sort of CYA move. Suggestion: Support a real comprehensive investigation. This might sorta help in determining the best "reform." But, Dems seem more open -- see the 96-3 vote against Feingold's Patriot Act delay -- to looking like asses by pressuring Paul Hackett to not run for Senate than applying much pressure. So, why should the Republicans care? Or the voters, huh?]

Courts: Meanwhile, Alito has reached into the good old boy network for his first law clerk with serious conflict of interest concerns. Cases: US v. Knows His Gun ... amusing caption of a serious case, involving child molestation. One involving child pornography is aptly entitled US v. Gross.

A third partly involves a claim that a "death sentence was imposed in violation of his Sixth Amendment right of confrontation because the Bible amounted to evidence against him," spelling out in a footnote that there are various "eye for an eye" quotes in said book. Basically, though it failed, the claim was that supplying a Bible arguably was an illegitimate outside influence on the jury. But, what if the juror just raised the same point without the Bible? It seems pretty obscure, but such is the law sometimes, especially habeas.

It's Cheney Season!

And Also: Brit Hume -- the infocommercial level reporter; great choice Dick! Revealing though. Daily Kos spells out things with more detail. Many note Cheney basically admitted he waited so long because no one trusts what he says any more. Christmas in February, basically. Meanwhile, big FU to the Senate, including the Democrats on the Patriot Act vote.

An Australian news program obtained some of the photos showing mistreatment of detainees that the government did not want released because it would antagonize things. As some suggest, the actual mistreatment probably did that well enough as it is so that the pictures will not change things too much -- just put it in our faces just what was done.

Pictures use the visual to force us to come face to face respecting things we might wish to avoid. Only a few were released in the last few years, though they were bad enough. Maybe not. After all, it did not convince enough people that re-electing the people in charge amount to almost as big a crime as they are committing, partly because we would hope the electorate as a whole has more shame. But, as on Republican dissident noted, the other option was Carter redux.

So, instead of electing a religious sort with his heart in the right place (and who actually did a bit of good in the Middle East) that in various ways paved the way to the conservative '80s, including in respect to deregulation, even if he was trouble in various ways -- though not too many criminal that I know of -- they had to vote for someone they knew was incompetent. Give him a mulligan, doncha know. Better than electing Kerry! The fact Carter actually was popularly elected the first time around and had a Congress of the same party that actually had a spine when it came to his actions probably threw them as well. Seriously ... this administration is incompetent and criminal. And, you RE-ELECTED HIM! Toss aside Ohio ... the popular vote was not within the margin of error overall. It should not even have been close.

This probably is why so many are focusing on Cheney shooting someone hunting and trying to hide what he did. Reckless secrecy is par for the course in this administration, but at least here we get to make fun of the guy without anything too serious like War in Iraq being at stake. Yes, a guy was hurt, but you almost don't care, since the two morons were hunting raised quail (Carter's rabbit is more deadly) in a bloody canned hunt. Now, I am no fan of hunting overall, but this is just sad. Bush v. Gore wasn't this stacked in their favor.

Not that the whole thing does not get tired fast. A local columnist that I often like did have a wicked song parody. Still, at some point, "who cares" is the major response. Ridicule does help, but this is Cheney -- how much respect does he have left anyway? [In the process, other game might be missed. Bush just said Homeland Security Chertoff is doing a great job ... atta boy Mikey! Still glad you resigned an appellate judgeship for this?] And, we have to deal with ... oh look ... talk about gun regulation! I comment on a Slate piece here.* Federal gun regulation is just not too relevant when the question of pellets is at stake. Did background checks, for instance, really factor in here? Come on.

But, as with presidential blowjobs, this stuff is gold ... it basically boils down to something not too important, even if we try to make it into something much more. This allows lots of empty calorie fun while still claiming the meal is totally nutritious. It is not like torturing prisoners and having pictures released not by our own media ... but Australian media. So our claims of freedom appear doubly ridiculous. Heck, religious upsetting cartoons ... those Danish are wankers.

And, especially if only conservative lawyer friends of Dick are harmed not innocent birds, who loses? That Nintendo Cheney Duck Hunt game should be coming out soon ... with the right code, you can get to the "Scalia" round. Shoot him just right and Justice Ginsburg laughs coquettishly.

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* One "solution" offered was insurance, but only if it was run by private companies within certain contours -- in other words, private per public regulations. Does not sound too good even if it actually was put into place just that way, which it would surely not be. Trouble arose from the start when regulation of what is deemed by a majority of the population to be constitutionally protected on some level was compared to automobile insurance.

Private insurance also leads to inequitable results. This might be okay if you do not think a constitutional right is at stake, but since that is not quite the case ... Anyway, civil litigation provides a means to deal with recklessness, if monetary cost is your concern. The criminal justice system also deals with other misuse. Some want to make guns special in this respect, but even the recent law passed by Congress had enough loopholes to make it somewhat harmless.

News Flash

And Also: A bit surprisingly, I enjoyed Imagine You & Me a lot, and not only because I was only expecting perhaps an acceptable easy on the brain lite romantic comedy. It actually had a bit of soul, though yeah, a few annoying bits. Forgive them though. A bit more here.

Patriotism can be practiced in many ways. Some choose to defend the country by taking up arms. Others serve in diplomatic positions, smoothing the way behind the scenes. Still others are lawyers or judges who pay integral parts in a justice system that helps prevent chaos and strives to protect the innocent. Many demonstrate love of country simply by waving flags. I and thousands of my colleagues have chosen the pencil, the pen, the computer, the camera, and the tape recorder to uphold one of the pillars that sustain a democracy, a free press. Democracy and a free press; you can't have one without the other. ... News Flash is an optimistic call to journalists and all Americans to demand honest and fair news reporting, so that citizens can make informed decisions based on solid, unvarnished information.

-- Bonnie M. Anderson, veteran reporter for CNN and NBC

I happened to go to the recently opened greatly expanded new environs of the Fordham Library, the main branch of the Bronx, and saw a lot of books. Targeting a few, I took some out on the media. One on editorial cartoons seemed promising, but it had the mistaken assumption that only somewhat progressive, critical of the government sorts can be true to their craft. It is unclear why you cannot write pro-administration etc. cartoons, criticizing the other side. Many have. Another, War Made Easy, how the press eased the way of war looks good, but I have not read it yet. News Flash, though I did a bit of skimming, is well worth a look.

[As suggested by her bio, the book really focuses on network news, not print media. The two surely have differences worthy of note as she herself references at one point when discussing attempts to combine magazine staffs with television to save money and have "synergy" among corporate assets. Did not quite work.]

Early on, Anderson was a bit ... well annoying, since she put forth a super-idealistic view of her craft, which I doubt ever was totally true. For instance, in the past, plenty of news sources had some sort of pro-American slant. She is quite right that the news, especially internationally shown such as CNN, cannot speak of "our troops" etc. without hurting its integrity as a supplier of information, not editorial comment. But, she toned it down a bit, and one can accept her idealism.
Anderson did earn her stripes and with her dad executed in Cuba when she was four, you can imagine why she believes so much in a free press. One that has much responsibility if it truly wants to say they are honoring the spirit of the First Amendment.

And, with a bit of bite -- she gets angry a few times in this book, and a bit nasty one or two. For instance, Anderson notes how Roger Mudd cut a newsmagazine piece on AIDS in the 1980s because it violated his religions beliefs -- it suggested it is not just a homosexual disease. Anderson also becries how the dollar became more important the supplying the news, including how for a full day a less hard hit area of a hurricane diaster was filmed, resulting in the authorities to mass to that area ... not the true disaster spot. And, she discusses how reporting does seriously affect public policy, including how her reporting in Africa changed our policy respecting supplying food to a famine struck area that was under rebel control. Her reports suggested food could get through.

She touches upon topics such as the lack of diversity, FOX, the problem with embedding and government controlled information (with censorship that even if acceptable -- she doubts it -- requires the press to inform how their reports are only partially complete), how Iraq and Cuba forced conditions on reporting, and the depths we have fallen in the Bush years. The start of her chapter on this last point warrants extended citation:

Picture a Country Where:

Suspects tried and convicted in closed-door military tribunals may face a firing squad

The government denies its troops fired on one another, censors news stories, and locks up journalists in a warehouse to prevent them from reporting about soldiers who've died in battle

The president unilaterally decides not to share vital information with the legislative branch

It's permissible for government entities to secretly obtain a reporter's phone records

Police have the authority to monitor citizens' e-mails and tap their phones

Press conferences are rigged

The government encourages regular citizens to turn in fellow citizens they think are suspicious; in Cuba, an identical program is called the Committee of the Revolution

But this country isn't Cuba, China, or Iran. It's the United States.

We can end with her concern for various misleading habits now prevelant in the business. Anderson mentions her refusal to report from in front of the FBI during the Richard Jewell affair -- the alleged Olympics bomber, who was actually innocent* because of the message it would have sent. Apparently, this seriously reduced the amount of money her employer had to pay when Jewell later sued the media for their actions. Likewise, there is the "sources say" to either not have to give credit to others or cover up the fact the sourcing is questionable. She also mentions little tricks that in effect mislead, such as implying taped bits are live or pool material is personally connected to local networks.

This brings to mind the infamous "Video News Releases" supplied by the government. Though she does not mention VNRs, Anderson probably would call to task the media too ... a media that often, to save money and time, played such reports as real news. The government had a responsibility to properly label such material, but so did the press who helped them out. Many administration critics also blame the "MSM," arguing that they are not doing their job of reporting the news, the facts clearly not on the administration's side if they just were properly reported. This book suggests they have something of a point. But, across the board, not limited to just one area of coverage.

And, this would be true whomever is in power. As noted here, being critical of the current government does not necessarily make you liberal, even if your critics suggest it does. OTOH, if you are a whistleblower, you better CYA.

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* The real bomber turned out to be a rabid pro-life sort that hid out for a few years with the help of some locals. Anderson notes that one of the infamous FOX "memos" spelling out the slant of that day's news suggested that this should not be emphasized because it would make the locals -- i.e., conservatives -- look bad.

She also notes that one reason why FOX makes money is low overhead -- their news staff is quite low as compared to other networks. They tend to focus on a few stories and let local affiliates pick up much of the slack.

Sunday NYT

And Also: Thus, ends with a whimper (10 turnovers, various field goals), the football season. Decent ending, even if late fill-in Steve McNair (lackluster season, still, too many QBs were hurt) had two turnovers late (not quite his fault given he only came to practice mid-week), given the final last minute drive actually had some life. With apologizes to the Winter Olympics, I'm ready for baseball, and that new Mets Network. OTOH, who knows if Dish Network -- which does not have the YES Network (Yankees) in NYC -- will actually supply it! [I actually got the schedule in the mail after writing this.]

[Other News: Some great sentiments here, including on the sad state of McCain's credibility and overall Republican hypocrisy. The Perjury 9 bit is amusing too. As to Cheney -- oh please. The cheap shots are fun, if a bit lamely predictable, but almost make him into a goofball. The Darth Vader image surely helps the cause better than ridiculing him for a hunting accident involving pellets. (Oh well ... see here ... so he is a reckless hunter. Yeah, that is shocking and somehow unique to people we don't like politically.) As to the ass protecting spin, this is as shocking as Libby saying that administration officials authorize leaks of classified info.]

The trek thru the snow (two feet? you would never know it ... NYC has remarkable snow removal) was worth it: good non-nutritious brunch and nutritious NYT articles. One was a follow-up on the wiretap issue, which referenced a troubling policy of targeting whistleblowers and others who happened to come upon information said individuals brought to light. For instance, governmental official Lawrence A. Franklin was convicted of passing classified intel -- rightly or wrongly -- but now they are going after the group to whom he (orally) passed material. As referenced by the defendants' brief, this has troubling First Amendment connotations -- even Fitzgerald was leery of charging Libby on such grounds.

Two discussed foreign countries ... btw that Haitian election came at an ill-timed spot … a fifteen year statute of limitations law for murders in Japan (of late nineteenth century origins) and the new "coca yes, cocaine no" policy in Bolivia under its new leadership. The article in passing notes how the U.S. -- without much evidence to back it up -- tried to bad mouth the new coca friendly leader, which only helped the guy in the long run.

A theme of late in Latin America has been the election of left leaning leaders that voice a popularly supported sentiment that El Norte leaves a bit to be desired. As to coca, it is a traditionally used low grade narcotic that a sane drug policy would recognize is not a danger on its own. But, who says the U.S. has a sane drug policy -- I especially love these anti-marijuana ads (how about meth, a growing danger?) that try to show teen users as moronic followers (one portrays someone using pot on a dare and then trying to outrun a junk yard dog ... sounds like a country/western song). As to drugs, the NYT had a piece on smoking and members of Congress with a picture of a witness lighting up. I again reference clips of Scalia's testimony to the Judiciary Committee in 1986 ... with him smoking a pipe.

OTOH, we have the anti-liberal editorials. I see Brooks wants another Gang of 14 to supply a weak-willed compromise (probably akin to the watered down Patriot Act reforms the dissident Republicans agreed to) solution to the wiretap and other issues. Well, DeWine seems willing to come up to the plate.

Stanley Fish also had a piece on "liberalism," the scare quotes are warranted given his cheap shot approach, which such arguments like liberals do not really care what you say, all things being equal. In real life, liberals do care, but do not support censorship (some do). So, "What is important is not the content of what is expressed but that it be expressed. What is important is that you let it all hang out," does not quite work, does it? Ditto his libel on liberalism's view of religion: "The first tenet of the liberal religion is that everything (at least in the realm of expression and ideas) is to be permitted, but nothing is to be taken seriously." Thus, you can "respect" people without it really meaning anything. In real life, "respect" means a bit more than that to liberals, but stereotypes are fun, aren't they?

The piece begins with this sentiment from the Danish paper that started the whole cartoon debate: "To me," he said, this "spoke to the problem of self-censorship and freedom of speech." The publication of the cartoons, he insisted, "was not directed at Muslims" at all. Rather, the intention was "to put the issue of self-censorship on the agenda and have a debate about it." But, it isn't that simple, actually. The paper was wary of publishing anti-Christian material. So, it turned out, a bit of a cultural double standard. This isn't necessary a "liberal" problem though. Anyway, if a small paper cannot examine this issue -- even if it is insulting to Muslims -- it is unclear what can be allowed in a "free" press.

And, in the process, one side or the other, might miss the point or not respect certain groups ... but this is not somehow a "liberal" or "conservative" problem ... it tends to be a universal one. In the real world, not strawman liberalism, things are a bit more complex. Anyway, Fish "is a law professor at Florida International University." I know of the guy ... he likes to be controversial and pops up from time to time in the "speech wars." But, darn if that is not as an obscure sounding place as Ward Churchill's environs appear to be.

Something New

Follow-up: If you go to the link I supplied in yesterday's post, a couple people replied with generally negative views on Jefferson. I think they sort of missed my point, but their replies as well as my own response might be worth a look. See also here.

Though the token snow -- a bit thicker when I had to trek from the train later on -- falling last night seemed to suggest the talk of a "blizzard" was again exaggerated, it appears we here in NYC really are getting a touch of the season. Finally. A bit too warm for my tastes. Actually requiring a long sleeve shirt yesterday was a bit of a rarity. Pain for some people, but let it snow, I say. After all, I no longer have to shovel the darn stuff.

I was coming home from watching Something New when the snow truly started to make itself known. A mixed bag. It concerns a rising star (uptight) black businesswoman unsure of her place in the business world (with its "black tax" ... still seen on some level as a "plantation" -- take that Sen. Clinton!) and still searching for that Ideal Black Man (IBM). Imagine her surprise when she falls for the (white) guy landscaping the backyard of her new home! And, who is that playing his father in the final scene? Is her dad really the guy from the Aflac commercials? (Yes.)

The plot has a "high concept" taste to it, but is handled nicely ... and in a tasteful (and PG-13 ... how many adult movies still have that rating?) manner. The characters mainly ring true and generally are all people who you enjoy spending time with while watching the film. It is a good first effort by the director and the star deserves some more exposure. Nonetheless, I think the story is a bit jumpy at spots (the screenwriter also does not appear to have much experience, especially on a full length feature) and a few times the dialogue sounded a bit too preachy. So, I was not totally satisfied with the entire package, though it is still worth watching as superior fare.

Overall, it is one of those "not quite" movies that still have enough pleasing parts that it is not a disappointment, but actually a nice viewing experience. This often is true for lesser known films, but sometimes more popular ones also warrant the label. Finally, the very fact it respectively supplies a black woman's view of things deserves respect. How many films can say that?

As to dinner, Chevy's ... pretty good (chain) Mexican food (servings also nice), needs more appetizers and desserts. The glass of beer (good) and dessert (boring) were overpriced; the main course fair. And, this habit of serving coffee ... ten minutes pass ... dessert, really has to go. Service not great, but we had time to waste, so that was not an issue.

Jefferson and Original Understanding

And Also: I find it amusing how upset the Bushies supposedly are about some of the comments made by "Atta boy Brownie." [In his honor, I had one with my coffee today.] They don't make scapegoats as good as they used to. Put Upon Scotty ("I don't have the power, Cap'ain ... I'm just a mouthpiece.") was particularly pissed. Poor baby. Now you know how we feel.

[I add a few more comments and reference a new book on Justice Scalia here.]

Recently, there was some talk on the Slate fray about Jefferson, and the value of referencing him in respect to original understanding of the Constitution. It was noted -- somewhat exaggeratedly -- that he really did not like the document very much, and especially was not a fan of a strong judiciary. I would note on that front that he was the one who counseled Madison that a Bill of Rights was necessary, one which the courts would have a major role in upholding. And, especially with a strong Tenth Amendment, the Constitution was not too bad in his eyes. But, yes, he had some problems with the whole thing, and was no fan of a strong judiciary. Anyway, the general sentiment of some was that he was not a good person to use, partly because Jefferson was not a Framer.

The best way to answer critics on this front is to rely on original understanding. Original understanding is a special aspect of originalism, actually the most workable form -- see, e.g., Randy Barnett's writings (libertarian view). In this form, we look at the general understanding of constitutional terms and principles in the Founding Era. Thus, when trying to determine the meaning of "freedom of speech," we do not only look at the original intentions of the Framers (trying to be mind readers) or original meanings per se (perhaps channeling Noah Webster), but taking a more holistic approach.

After all, "the people," ultimately ratified the Constitution ... and they were its target audience. And, if you look at originalist court rulings, original understanding overall is often the concern, though meanings also are used with relevant citations of dictionaries and such. Looked at in this fashion, Jefferson is quite relevant. He was the face of the Democratic-Republican Party, which promoted a certain constitutional vision. It is quite logical, therefore, to consider such an influential voice -- the primary author of the Declaration of Independence to boot* -- an important reflection of original understanding.

Furthermore, a bit of looking will show that the themes he promoted -- including that famous letter to the Danbury Baptists respecting the meaning of separation of church and state (see, e.g., The Godless Constitution) -- was not unique to him alone by any means. Again, a reflection of original understanding. [Or, to be even more specific, many of Jefferson's opinions can be shown to be reflective of actual original intent/meaning.] Surely, it is foolhardy to look to any one person, or even one point of view, to determine original understanding. For instance, in John Witte Jr. in Religion And The American Constitutional Experiment notes that four strands of thought was in place respecting the proper division of church and state in the Founding Era.

Thus, though certain basic principles were clearly agreed upon, tricky situations arise in which no one "original" understanding can be found -- it ultimately would be a judgment call. Still, certain lights are logically looked upon with special favor, and Jefferson is correctly one of them. Finally, hard as it might be for some to imagine, I actually respect original understanding; I just think it is more flexible and open-ended than some think. John Marshall, a ratifier of the Constitution, reminded us that this is a Constitution, not a prolix legal code. It was intended to be a flexible and developing document (up to a point).

We should take a page not only from TJ's book, but that of his nemesis. Both have something to teach us.

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* And not only that. Jefferson worked with Madison, the latter actually a major framer of the Constitution / Bill of Rights, for a religious freedom law in Virginia that clearly was an inspiration of the First Amendment. He also worked on the Northwest Ordinance, a major piece of legislation in the 1780s setting forth a means of self-rule and future statehood for Old Northwest, the current Great Lakes Area.

This influenced constitutional rules respecting territories and future statehood. Furthermore, TJ was the nation's first Secretary of State, providing a major platform to establish precedents concerning what the Constitution truly means in practice. He might have been France while the Constitution was being written, but TJ was a major player and a good place to start in respect to original understanding.

They Just Can't Help It

And Also: In the midst of a worthwhile piece on the subject, Christopher Hitchens supplied a convenient link to another source that provided the infamous cartoons, the conservative Human Events.

One quite sound criticism of the unilateral secrecy respecting the national security warrant taps is that the counterproductive nature of the whole enterprise. A successful battle against terrorism includes working together, which requires trust on both sides. I know this apparently goes against the grain of the zero sum game that drives this administration, but after a while it is glaringly obvious.

For instance, they release information about some aborted plot involving shoe bombs. The general sentiment is cynicism because of the timing and the whole thing seems a bit laughable anyway. [Also, local authorities are pissed because they say that they were not adequately informed.] But, surely it is not too laughable given the fact that Richard Reid was convicted of taking just such a bomb on an airplane, actually a creative way to get explosives past authorities. And, though it might seem like giving them too much credit, I do not think the administration is totally incompetent. Surely, they did something to fight terrorism in the last five or so years. It is just that they insist on exaggerating, misleading, and stonewalling to such a degree that you just cannot trust them.

And, yes, their overall success rate does not warrant giving them the benefit of the doubt. But, they are just making things worse for themselves. (English accent ala The Crying Game) They just can't help it. It is inherent in their character. So, instead of putting forth a weaker case that Iraq appeared to be chasing WMDs, they use superlatives and absolute language. They deny doing anything wrong, spinning or changing the official line ala 1984 when necessary.

And, so it goes.

Funeral Follies

And Also: I noticed an ad for a "crisis pregnancy center" -- though did not know it at first -- and discuss the matter here. Pearls To Swine, including yesterday's bit about keeping track of library books, was just hilarious recently. I just love those shots of the characters emoting, including the pig happy. Also, trouble over CRS reports reflects yet another threat to rational analysis of public policy. This hits to the heart of our system of government.

Various right wing sorts are complaining about various remarks at Coretta Scott King's funeral, including those critical of President Bush -- who was at the service. As usual, by the way, Clinton rose to the rhetorical occasion, speaking about the "person" inside the coffin, the two most important days of her life (accepting her faith / day after her husband was killed) and so forth. Words only go so far, but I do admire those with rhetoric skill, especially when you actually take them seriously. And, partly shown by the work done after he left office, his actions show he really is not fully of shit.

Anyway, back to the criticism. In particular, people are upset about remarks about WMDs, War in Iraq, and eavesdropping. Basically, the critics are upset that a few people at the service had the (I guess) bad taste to note that President Bush's actions rejects many things Mrs. King (okay, that sounds too much like an old television show with Kate Jackson) stood for. Crooked domestic wiretapping and spying of civil rights leaders including Martin Luther King Jr. is a big reason for the limits that the administration decided were no longer feasible. King was a pacifist, strongly against the Vietnam War, and the killing of other people of color for corrupt reasons. And, so forth. He -- and also his wife -- likewise was known for being blunt about criticism of the limitations of our leaders.

But, it is so much easier to promote a rosy eyed view of our past heroes, not suggesting the controversial nature of their message. We should just celebrate his birthday (oh wait ... Cheney voted against making it a national holiday) and use him as a vanilla (a bit ironically) symbol of equality. Heck, even affirmative action can be said to be against his vision! Of course, it is not like the funeral service was one long anti-Bush exercise. Complexity, however, is not the forte of some of these critics. And, yes, one point of funerals is to promote the ideals of those who died and those still living. Consider the Gettysburg Address or Pericles' funeral oration. A true path here would surely call to task our current leadership.

Some reference also was made to Sen. Wellstone's funeral in '02. [Actually, it was a separate memorial service ... the funeral was a smaller family affair. Key point.] That still rankles on my front too. Someone raised the point to me personally on a message board that it was crude for people to boo Trent Lott and politicize the whole thing. That they should apologize. I cried BS and still do. Of the twenty thousand or so there, a small number booed a bit when certain people popped in that went against the ideals of those the cruelly killed (soon leading the Senate to go to the Republicans) a few days before.

This simply is not worthy of much note -- Al Franken (a friend of the Wellstone family and there unlike most of the critics) wrote this in his book on the Liars of the Right and actually has the sound in the audio book. The sound barely picks up any booing. In other words, it was trivial, a tiny part of hours of memorial for those slain. Anyway, should those there apologize for being human? For showing a bit of distaste, in a time of grief, at a memorial service of their liberal hero? And, in the process, bow down and beg forgiveness from the Right? The exaggerated and sanctimonious b.s. criticism is what truly was disgusting. But, all too often that is what they are.

Anyway, sorry if it came out that the current leadership goes against much of what the King Family stands for, and their supporters sometimes are a bit uncomfortably honest about stating the facts. I know that throws the current powers that be and all those who have to be "concerned" about their actions. Poor babies.

TMQ

And Also: "After his testimony before the Committee, however, it was apparent that Judge Gonzales does not have the abiding respect for the rule of law that our country needs in its Attorney General." Right you are, Russ. Not really his current job description, is it?

TMQ had a good column on the Super Bowl this week. As to Seattle, he focused on three major issues: dropped passes, three key injuries (but still a pretty good defensive effort), and a vanilla game plan. This final problem repeatedly bites the Colts in the playoffs; Seattle was hurt by it as much as the attack of the zebras, including not properly responding to more creative game calling by Pittsburgh. Meanwhile, while the QB was bad (but had a few veteran moments that leads me to suggest saying he was terrible is a bit silly), the core theme for Pittsburgh is their defense. All through the playoffs it held high scoring teams to low scores, and I might add, allowed Pittsburgh to sit on leads (or small deficits).

As to the zebras, he was pretty sanguine about the whole thing. It was noted, as should be, that Seattle actually obtained two favorable calls, including one that kept the game alive late. Meanwhile, TMQ agreed with two of the calls that went against Seattle -- the TD (it got in ... he didn't think so at first, but the replay convinced) and a pass interference call that some at best called questionable, others rinky dinky. Still, he agreed the two calls related to the late interception -- which ruined what might have been an exciting finish -- were wrong. In particular, the "adding insult on to injury" penalty on the QB after the interception really didn't make sense. How the block was listed on the official game stats legally could not amount to the penalty that was called.

Anyway, he was not too overly distraught, perhaps because Pittsburgh was quite likely to win anyway, or TMQ is really a Steelers fan. OTOH, it bears noting that an earlier column tried to show how Bush v. Gore was no big deal, in part by some questionable legal reasoning. So, maybe his judgment on such matters leaves a bit to be desired. On that point, I saw his brother on C-SPAN over the weekend. Did not really catch the interview, but did see what he looked like. For some reason, I figured he was a bit older. He has one of those Bork beards.

Also, this week, TMQ's non-sports asides were rather interesting. First, a pining for the rhetorical skill of President Washington (short speech, long sentences) vs the latest State of the Union address, though a bit of commentary on the subject matter might have been appropriate too:

Knowledge is in every country the surest basis of public happiness. In one, in which the measures of government receive their impression so immediately from the sense of the community, as in ours, it is proportionately essential. To the security of a free Constitution it contributes in various ways: By convincing those who are entrusted with the public administration, that every valuable end of government is best answered by the enlightened confidence of the people: And by teaching the people themselves to know, and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burdens proceeding from a disregard to their convenience, and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness, cherishing the first, avoiding the last, and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws.

Second, he made a couple good points in respect to the Intelligent Design debate, though leaving out a key matter. TMQ, a science sort in a different life, notes that ID proponents tend to wrongly defame evolution as a "theory" about the origins of life. First off, "theory" is misused, but more importantly, it is not a "theory" about the origin of life at all! Darwin did not -- nor does anyone even today -- know how life originated, he discussed how life developed. On that point, the evidence is clear, akin to the laws of gravity.

[I stick to my thoughts here, but see here for some complaints as to his wording. TMQ does have a certain lazy way of going on these asides, but here I think he hit on a couple relevant points along the way.]

As to origins, since we do not know, a creator god is a totally appropriate hypothesis. But, I would add, not really one for science classes. Such is a major point: since, at least as usually described, you cannot prove God -- the attempts are a bit silly, and few really want to question God's existence anyway -- it is not "science." Anyway, the debate usually is over development. Evolutionary scientists are not all atheists. This throws certain sorts off, but that really does not make it untrue. As to there being no clear theory on how life begun ... I wonder ... I actually recall a discussion in the paper a long time ago that spelled out some studies on the matter. Or rather, the creation thereof.

Back to football. TMQ also questioned the hesitance of Seattle to go for it on Fourth Downs. This is an ongoing theme of the guy ... he wants teams to go for it on Fourth Downs, even in pretty unlikely situations. I find that he lays it on a bit thick, including in cases where subpar* teams are deep in their own territory, and it is a pretty long down. For instance, the Giants/Raiders game -- the Raiders was like on their own 15 and it was Fourth and a couple early in the game. The Raiders later could not score from the 1 in four tries! The Giants have a good defense and the Raiders no running game. I thought, "huh?"

As to Sunday, he might be right as to 4th and long late in the game (especially with the injuries making a defensive stop difficult), but less so about 4th and short on their own 25 early in the game. Maybe ... it was only the length of the football, but it was like the First Quarter. The game surely suggested that you cannot guarantee nothing would go wrong. Oh, why so little comments about the ads and pre-game/Half Time entertainment? I guess a couple extra cheerbabe photos was more worthy of the space. Both were pretty subpar anyway.

I'm ready for baseball, what about you? And, no, do not quite mean the World Classic, or whatever it's called. Any bets on what big name player will get hurt in that thing?

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* "Subpar" is not picked up as a word on the spell checker. It means "below par" ... maybe, it is a neologism compound word, but darn it, I like it ... and will continue to use it.