Political News: I discuss the Wisconsin Presidential Debate here, supplying a bit of (I hope) constructive criticism of Sen. Kerry. As I noted to an online correspondent of mine, I would be comfortable voting for him in November, and think he has a lot to offer. I do, however, have problems with him, problems I do think he must face up to during the general election. Another analysis of the debate does a good job suggesting my take on the issue as well as pointing out reasons why people like myself support Dean and Edwards, even to such a degree our hearts are sometimes with them over Kerry.

In other political news, Canada is up in arms because (now this is a shocker) Conan O'Brien partakes in some bad taste. I tell them to grow up here, while also raising again the whole Super Bowl Half-Time thing, which has got out of hand. A good take of just how bad the current plans in France to selectively ban religious attire can be found here. An interesting reminder of what other nations' legal systems can teach us is found here, involving foreign court judgments upholding homosexual rights. And, why, oh why, must the strongest statements in support for equal rights of gays in the debate yesterday come from Rep. Kucinich and Reverend Sharpton? Sigh.

Books: Every weekend, C-SPAN has forty eight hours of coverage of (primarily) non-fiction books, as well as an hour on one book on Sunday Night (Booknotes). Good stuff. For instance, book events in honor of The Trouble with Islam: A Muslim's Call for Reform in Her Faith and Monkey Hunting (historical fiction, Cuban-American) last weekend made be quite interested in the reading the books. Sometimes, the talks are like a review, and provide a quick way to avoid reading ... but I don't know if that is quite their function!

Someone also told me about a book entitled Sailing the Wine Dark Sea: Why the Greeks Matter. Isn't that a wonderful title? I also borrowed The Bounty: The True Story of the Mutiny of the Bounty, which is a wonderful looking book, after watching a talk about it on Book TV. [Link provides you a chance to watch it on Real Audio.] One of these days I will actually read the thing!

President's Day: I was about to mail something, and then I realized what day it is. My problem is that Feb. 16 is an odd day for it given Washington's Birthday is next Sunday, and Lincoln's Birthday was on Feb. 12. If we go by the Julian Calendar (as they did when he was born), Washington would blow out the candles on Feb. 11. I understand the whole three day weekend thing, though I favor mid-week breaks, but Feb. 23 is a Monday too. Thus, my problem. It is Ice-T's birthday.

Yankee Haters Seethe A Bit More: Well, sure ... you give up a top pitching prospect to get a decent third baseman, whose only real value when all is said and done is that he is a few years younger than your current one. He does his part ... hits a home run to get you to the World Series ... so it is not too big of deal that he really didn't do anything else when he hurt himself playing basketball. It was an "accident," they say ... as if! It was all part of the plan, you see. It just left an opening for the best player in baseball, so they say, who dislikes Texas (252 mil. and all) enough that he's willing to switch to third to play for the Yanks, even though he basically is clearly better than the guy currently at short.

The Rangers are even footing around a third of the bill, so with Alfonso Soriano also leaving (I pity the guy ... Texas ... shudder), it turns out to be not even a ridiculous amount of money. So to speak, especially this year (Soriano, Boone, and prospect Drew Henson leaving saves them $14mil and A-Rod will cost them $15m!) Not that the Yanks, the haters say, are worried too much about the money. Baseball mismatch continues, and just how stupid that deal was for the Rangers in 2000 (A-Rod was not too crazy about it either at the end of the day, but he still got the money, so isn't too bad off) was underlined yet again. Don't fret haters ... the Yank starting rotation is untested and has no lefties. And ... ok ok ... you need to calm down. I'm a Mets fan, remember? We are aiming for .500 ... so don't take it out on me.

The Red Sox, by the way, had a chance to pick him up ... ;)

Joe Sermon: I sermonize on Mel Gibson's film, even though it did not come out yet. No funny business here: unlike the Vatican, I am totally aboveboard about talking about it. Curious about the thing ... I like foreign films and never saw one in Aramaic before.

Movie: I recently saw a good compilation of short films entitled Robot Stories, four stories joined together by their focus on robots and various takes on love. Thus, it was timely as well, hmm? The stories involved a couple preparing for an adoption with a robot baby; a mom dealt with her comatose son by focusing on toy robots he loved as a boy; an android temp dealing with ridicule from co-workers; and a dying man not wanting to transfer his conscience into a computer as his wife and others have done. Various serious themes are handled with a gentle seriousness. The films also mainly have Asian American actors, which is refreshing in its own way. A fine example of the power and wonder of film.

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Religious Education In Britain: New standards are being drawn up to cover various "non-religious" beliefs [so called because I don't think a belief in God is necessary to have a "religion"] in British schools, where education in religion is part of the obligatory curriculum. In this country, public schools are wary about teaching about religion, given the First Amendment and the touchiness involved. This is understandable but problematic, since in the process a Christian majority misses out on some useful information, while the religious minority does as well. For instance, when I was in Catholic School (yes, I am a survivor), we had a class dealing with Arab Studies ... we actually recited the Muslim statement of faith at the beginning of the class ["There is only one God ... Allah ... and Muhammad is his prophet. Allah be praised" or thereabouts] A small thing, but rather important all the same, and this was long before current events made that sort of thing rather relevant.

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Politics: The Kerry train chugged along this weekend with stops in Nevada and Washington D.C. (Dean won the symbolic voting primary in January, but Kerry won the one that counted with Sharpton coming in second). The next big event is Wisconsin on Tuesday in which he is favored as well, and seems to be destined to be Dean's last stand. As people (and even Dean himself) adapt to this fact, one is left at the moment with one serious Kerry alternative ... John Edwards. Some in Wisconsin feel he is the best candidate and his views on the issues are acceptable to most Democratic voters (suggesting why Dean and Kucinich both like him; for what it is worth, Mosely-Braun endorsed Dean). Kerry is likely to win there too.

I just underline that I don't like the pro forma nature this race so quickly became with people like Gen. Clark saying we should finish things off in mid-February. And, I think others agree, and a real race at least until half of the bloody delegates are chosen would benefit Kerry too. Various candidates keep the pressure on Bush, different themes can be focused on, and Kerry can polish his race with a bit less focus on it by Bush and company. Maybe not, I guess, but I didn't sign on to be spoonfed the most "electable" candidate before I even vote. This is not just a race to defeat the President, but a Democratic Party Primary Season. I would emphasize each word, and feel it ill advised to write off those suspicious of Sen. Kerry. Our differences make our party great, but they are being hidden for some higher good ... which is all fine and all, but the time for that is November, not February.

Anyway, this article suggests the path Democrats should take in foreign policy, and suggests why people should be a bit wary that Rep. Gephardt endorsed Sen. Kerry ... it is a sign of the establishment, old time politician who failed us when it mattered.

Outer Limits of Free Speech: I am a strong believer in free speech, even in controversial areas (such as obscenity, hate speech, and "dual use" speech that might be used to break the law) so the forthcoming article by Professor Eugene Volokh on speech that might be used to faciliate crime was of particular interest. I am a sucker for articles that examine the controversial edges of particular doctrines, and the article surely did that. The whole article, admittedly rather long, is well worth a perusal for those interested in the subject.

It contains mention of "mirror sites," which are websites that post controversial material that might even have been already been subject to lawsuits for the express purpose of making a point as to the errors of censorship and so forth. [One example provided by the article, and the link still works, involves a hitman manual ("for entertainment purposes only"), the original publisher was successfully sued in civil court, after it was used by an actual hitman, and promised to take it out of print. The Internet, however, makes this of somewhat limited value.] btw the url supplied by the Volokh article to an online copy of the book has "die" in it, which must be some sort of sick joke.

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Pre-supposing Bigotry?: Talking about Professor Volokh, he criticized a recent article against the proposed marriage amendment in that it presupposed that it was an act of bigotry. As he noted, he is still opposed to the current amendment, given its current reach (a narrow one preventing the federal courts from forcing states to accept gay marriage is more to his liking). The article, however, does discuss in some detail why the author believes it is so unnecessary broad that it clearly implies unreasonable bias. Also, yes, opposing an amendment to allegedly protect the "sanctity of marriage" in this fashion implies a certain view on homosexuality. I think that's fine. It's somewhat self-defeating to just emphasize the bigotry angle, since people are currently deeply divided, but the article turns out to be a bit more nuanced than the critic suggested.

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Other News: Fiscal conservatives start to wonder (and compare Dean to Perot) what the point is in voting for President Bush. A creative way to apply math to your audience. Just one example, snide comments over the last few years (and on last Wednesday's West Wing) aside, why the UN matters. If only we had a leader who cared about it, and forcibly was willing to help push it in a new direction for the 21st century.

Clark To Endorse Kerry: While Howard Dean basically endorsed Edwards, it seems that Clark will soon endorse Sen. Kerry. An article notes: "In appealing to voters, Clark relied almost entirely on his 34 years in military service. Supporters touted other qualities -- his Southern roots and his status as a Washington outsider -- that they contended made Clark the candidate most likely to defeat Bush. Plus, he provided another forceful voice in condemning the war in Iraq, which he frequently called unnecessary, reckless and wrong."

Many of these qualities suggest that Clark supporters rather vote for Dean or Edwards than Kerry. The military service and to some degree condemning of the war (though Dean surely trumps Kerry here in the eyes of many) goes Kerry's way. The Washington outsider, Southern roots, and (to add another thing) overall easy going campaign style would go Edwards/Dean's way. Clark, after all, was basically a Dean alternative ... much fewer thought "well, Kerry is pretty good, but Clark is just a bit better." So, yes, though it makes sense in some ways, I think the endorsement a bit odd, and I'm also a bit annoyed about it. Ten candidates overall, and soon enough only one is deemed by many as credible. Some choice Democrats got.

To better reflect her single status, Cali Barbie will wear board shorts and a bikini top, metal hoop earrings, and have a deeper tan.

-- Barbie and Ken split up

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Clueless: Justice Scalia publicly underlined his inability to understand why going on an extended trip with the subject of a lawsuit, paid for by a representative of the group said individual is accused of wrongly protecting from public view, and involving the person directly, not in name only, is and appears to be a conflict of interest. Meanwhile, I recently heard that Justice Breyer was the only justice was at the President's State of the Union. Interesting.

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I caught Michael J. Fox on Conan (he's in Toronto this week; nice city ... artificial looking baseball stadium ... tasty tofu dogs provided in hot dog carts) last night ... he didn't seem 100% well, but that is to be expected, given his current struggles with a horrible disease. Cheers that he is well enough to guest star on the show Scrubs, and I wish him and his family the best. I still recall a touching scene on the show Family Ties in which his character shows his true feelings for the woman (Tracy Pollan aka Ellen Reed) who later became his wife in real life. Fox also made a self-depreciating remark about a lesser known film of his entitled Life with Mikey, which actually was a nice little film.

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Crossing the Line: I supplied some viewpoints yesterday on the proposed amendment to the Constitution regarding blocking gay marriage, while in the past doing the same for interpreting the current constitutions (state and/or federal) in matters relating to homosexuals. I come at this subject with a deep interest in the broad and very important issues involved in matters relating to equality, sexuality, and ultimately individual liberty. [For instance, I find the Attorney General Ashcroft's decision to subpoena medical records to investigate partial birth abortion use a serious threat to privacy, especially since he defends it (2/12) by diminishing the importance of medical privacy.]

All the same, I perhaps was a bit to urbane about the whole thing. Let me be blunt ... it SICKENS me that the freaking President of the United States supports a CONSTITUTIONAL AMENDMENT (others involving such matters as freedom of expression, trial rights, equality, voting rights, and so forth) to protect the "sanctity of marriage." [Let's be honest and admit this is what is at stake here for these people, not some neutral idea like "judicial restraint."]

It is not horrible to underline that good people can disagree with the practice; I know such people, and they deserve recognition. It is not horrible (if in my view wrong) to argue states should be able to ban gay marriages, especially since most states now do just that. An amendment to the Constitution that sets things in stone, even when state courts interpret their own constitutions, however, crosses the line. And, if it's only for political ends, it is even worse. How about protecting the "sanctity" of the Constitution, Mr. President?

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Happy Birthday: Christina Ricci ... oh, and Abraham Lincoln.

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

-- current version of the proposed 28th Amendment the President supports

I spell out my objections here, but the power grab from the states seems particularly ironic, except that current [neo-]conservatives believe in power grabs, if it furthers their views. Some, though they need to in effect avoid reality to do so, see this as mainly a matter of judicial restraint. If so, as I noted in a useful email exchange with one such individual, it's rather counterproductive in the long run. The means and clear anti-homosexual bias taints the neutral principle involved, even if the amendment turns out to be more narrow than its current version. You also have to basically accept that the problem is even worse than it actually is, thus the need for an amendment, and thus help the other side! Is this really smart?

[The value of the Internet to allow the exchange of ideas is ever clear to me, especially when I have the chance to have email exchanges with law professors. I'm currently addicted to message boards, but it is especially useful when you have concrete evidence that you are reaching authors you formerly only had conversations with in your head.]

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Politics: One thing that upset me about the current presidential campaign was that some interesting and exciting candidates lost out because they were unable to play the political game. I realize in the end that this is life, since the office is political, and our system elects people via political campaigns. Thus, perhaps a candidate like Clark's failure suggests his problems with a major part of the office he wished to fill, and a role such as Secretary of State would fit his skills better.

Still, flawed campaigns also hurt the race overall, since no one candidate can do it all. For instance, Clark indirectly (via Michael Moore) raised the "Bush AWOL" issue in such a way Kerry could not because he had to be less controversial as frontrunner. Likewise, Dean (lousy campaigner or not) brought great things to the race, and I find it sad many write him off as a joke without giving him the credit he deserves. And, other candidates serve a vetting function ... they strengthen the frontrunner and make him face uncomfortable facts. Thus, Clark's fear that Democrats will have "buyer's remorse," if Kerry just glides in. Thus, aside from the fact I still have some problems with him, I hope Edwards (and perhaps Dean) can still be credible candidates. It might even be argued that Edwards is an ideal candidate.

Just letting Kerry be the de facto nominee seems misguided and might come back to haunt the party.

 

The above is Get Fuzzy at its finest ... the highlight is the final frame in which there are three separate clever lines.

Given the president's record as a businessman, and since he's now run the country hopelessly into debt, isn't it about time he sells the country off to some rich friends who will swallow the loss so he can move on to greener pastures?

-- Josh Marshall

Politics: John Kerry won Tennessee and Virginia today, but Clark + Edwards combined beat him in Tennessee. This suggested the ultimate stupidity of having them split the anti-Kerry vote, surely in Southern states. Clark bowed out of the race (thus I'm editing this entry), but imagine if the two combined forces earlier on. They would have won Tennessee and got about a third of the vote in Virginia, a respectable finish, or perhaps more because combined they result in a much stronger candidate (political skill plus gravitas).

As it is, the non-Kerry vote is split between a couple of jokers, a lost cause (Dean, who has probably driven off the cliff already and is just waiting to land), and a second fiddle sort of candidate in Edwards. Combined, the competition has less delegates than Kerry, but is substantial enough to be something if they truly joined forces somehow. Probably not ... and I share Clark's concern that voters will have "buyer's remorse'' if Kerry just sails right in. Thanks for the effort, Wes, and you'd be an asset to the ticket/administration.

Happy Birthday ... Laura Dern

The issue, I think, is that right now the president doesn't have a particularly good story to tell or a particularly good explanation for why almost nothing he's said would happen (budget, Iraq, etc.) has happened. That's a problem.

So when he goes on an hour-long interview he doesn't sound very good. And since he's not willing to confront the debacle of the weapons search, the fiscal mess, or what's happening on the ground in Iraq he comes off sounding evasive, incoherent and out of touch with what's happening on his watch.

-- Josh Marshall

The responses to the President's interview on Sunday are mixed, but even his strongest supporters were not totally happy with the effort, except for certain sorts (ah my local paper ... they do have some idiots working there) that provide what amounts to Bush supporter spin. Many think it was somewhat soft and lacked many useful follow-up questions. I also think he spent too much time on Iraq, allowing the President to underline his talking points and not much more, and thus having less time for a whole range of other issues.

The net effect is likely a bit negative (the focus should be the "fence sitting" brigade, not those predisposed to dislike him; on the other hand, it is revealing even Bush supporters had some concerns) and more cynicism for those whom expect more out of our journalists. See, for instance, just one example of the efforts of those in the blogsphere that trumps professional journalists.

Other Issues: Is our current patchwork, quasi-socialized medicine system really the way to go? Why not just go all the way? An interesting opinion regarding a university student who sued because she was told to say certain things in acting class that violated her religious beliefs. The ruling mostly noted the university had the right to set reasonable course requirements, but that in her case some selective mistreatment might be proven ... so, a summary judgment against her was wrong. Mr. Timberlake apologized for his actions during the Half Time festivities ... cries of "weenie" could be heard from the Grammy audience.

New York state wants its sales tax on all those items you bought online, out of state or on an Indian reservation. For years, you were supposed to cough up this sales tax by completing a form and mailing it with a check to the state. ...

Thirteen states have a separate line on their income tax returns, according to a 2002 survey by the Federation of Tax Administrators. Four states and the District of Columbia mail residents a separate form.

Well, that's news to me. Apparently, the idea is that the businesses themselves don't have to deal with it because the Supreme Court said it would be a burden for them to have to deal with loads of different state laws. Why I have to deal with it is unclear to me ... call it a "sales" tax or a "use" tax or a "gouge me out of a few more dollars" tax if you'd like, but the net effect is that you are taxing stuff that came from out of state. I don't think it should be legal to interfere with interstate commerce like this, unless you are Congress. Congress is talking about figuring out how to streamline the system so the Internet businesses can be charged sales taxes, which is fine by me. States doing it the way they do it now seems wrong to me. The tax itself was trivial in my case; the principle, not so much.

Anyway, I do like to go shopping online and elsewhere for various items, which is probably the case for some thing or other for most people out there. Two places that appeal to me are bookstores and food stores. The best food stores are big supermarkets that have a range of interesting foods and health/natural food stores that do so as well along with a better range of vegetarian/vegan products. One product that I purchased a few times at such a store was hemp food ... for instance, hemp flavored cereal or frozen waffles.

The problem is that there is a fear that the hemp would have traces amounts of THC, the stuff that makes you high in pot (yes, hemp as in rope comes from the same plant family), which is pretty ridiculous. An appeals court thought so too, striking down a DEA ban of hemp foods because it held "non-psychoactive hemp products" not covered by the law in question. Meanwhile, no major attempts to ban caffeine rich cola drinks that children guzzle down daily seem to be in the works. Of course, the court in question is the Ninth, so the "oh them" comments are being made, as if all of the thousands of decisions made by them are ridiculous and/or going to be struck down by the Supreme Court, which hands down about eighty decisions (and a few more summary opinions) a year. Oh well.

 

Supreme Court / Politics

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." -- Eleventh Amendment (1795)

The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U. S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U. S. 1 (1890).

-- LAPIDES v. BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA (2002)

A rather esoteric, but quite important, dispute has been raging in the Supreme Court in recent years regarding the true reach of the Eleventh Amendment, and the power of sovereign state immunity it is said to imply. 

I say important because of the individual rights and congressional powers are at stake, especially given that a primary alternative offered (direct suits by the U.S. government) is unwieldy and unlikely to be available in many cases. A look at the words and history of the amendment would suggest things shouldn't be too difficult, but things have not turned out that way. 

Nor has things just started with the current Supreme Court. The battle lines were clearly drawn in 1987, if not over ten years earlier. It was just a matter of time that court personnel change would lead to the current era, misguided (see the excellent dissents) as it might be.

The road to this result turns out to be rather interesting, as suggested by a book cited by the primary dissent in the 1987 cited above, Judicial Power of the United States by John V. Orth. 

I learnt of the book because the author wrote a fascinating little book on Due Process of Law that explained its long English law roots, roots that justify in various extents a substantive (basic rights instead of just "procedural" protections) reach for that protection. 

I got a hold of Orth's (who has continued to write on the subject) book, and though it is in various ways as out of date as the yellowing pages of my copy suggests, it is a fairly straightforward read with valuable historical insights.

A more up to date criticism of recent "Eleventh Amendment" jurisprudence is Narrowing The Nation's Power: The Supreme Court Sides with The States by Judge John T. Noonan, Jr. See also, Original Sin by Samuel A. Marcosson and a whole slew of other books, law articles, court dissents, et. al.

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Politics: A while back, I noted my belief that Howard Dean had little chance of winning the general election, an opinion I tempered given his later success. Always go with your first judgment, I guess. 

Oh, I guess, I will join with Mike Doonesbury's daughter and withhold judgment, but when he starts suggesting that he might be willing to be a vice presidential candidate (one wonders who would pick him), you know he is in trouble. It also was suggested by several people that there was a good chance for a brokered convention, i.e., no one would get enough delegates to have a majority. 

This too seemed somewhat unlikely to me, and if John "zzzzz" Kerry continues to succeed, things will be almost pro forma before I even vote in March! Key primaries occur in the next two weeks.

I saw John Kerry recently give a stump speech, after Gephardt threw his support Kerry's way. First off, though Gephardt's endorsement is surely a help (for union support alone), it surely doesn't do much to endear me to the guy. After all, the tired nature of Gephardt along with his vote on the Iraq resolution (to add insult to injury, he went over to the White House to voice his support without telling Sen. Daschle, then Majority Leader of the Senate ... such assholic rejection of party loyalty deserves my contempt) is just the sort of thing I dislike about the Democratic Party. 

To the extent Kerry is the "establishment" candidate, this doesn't help me like the guy. Anyway, the guy put me to sleep as he droned on and on. And, I just worry about this guy in the Fall.

I do wish the other candidates would join together somehow, at least Clark and Edwards, who together might work, but apart just split the anti-Kerry vote. If not, John Kerry should be sitting pretty before he makes an appearance at a St. Pat. Day parade. If so, good luck ... and please work on voters like me so we will not see voting for you in November as some necessary chore.

Political Thoughts: I discuss my belief that service in Vietnam is used in somewhat troubling ways for political ends and link up to an interesting discussion of journalists reporting in war zones here. The DOD wisely changed its mind about rejecting security concerns regarding a system allowing Internet voting for those overseas. No evidence my citation of the issue had anything to do with its decision. The White House has also consented to a request from the 9/11 Commission for more time. Cheers for a showing an iota of shame. Dean has made a win in the Wisconsin Primary (2/17) a make or break proposition. He easily might be the fifth one to drop out and as my noises in the past suggest, I'd be kind of sad given the value of his message and the energy/passion he helped bring to the party. Finally, here's an interesting way to make House races competitive again.

Talk About Boobs: Apparently, given Janet Jackson's exposure, NBC is scared to air a quick view of an eighty year old's breast during a medical examination on the show ER, aired on the 10 o'clock hour (EST at least), which means different standards apply. I am only left with disgust at such infantile decision making. As to Janet, we are to believe a Super Bowl stock full with ads with sexual themes are acceptable, but a quick shot of a breast is on the other hand horrible. In fact, the sexually explicit lyrics of her very song were okay. Yeah right. I also fail to understand why Janet Jackson is deemed perfect Half Time entertainment, given that the demographics suggested by the advertising would suggest perhaps someone slightly different.

Other News: Cheers to a teenage girl who wants to ban circus animal performances in Denver. The court decision striking down the NFL's ability to block the draft of a twenty year old player was expected, but I still find it troubling. If they believe talent, education, or some other matter would be harmed by drafting of such individuals, they should have the right to do so.

Happy Birthday: Laura Linney and Barbara Hershey.

Odds and ends: More doubts from the "good guys" about Kerry. More reasons not to like Sharpton. A Clark supporter's in person account of the Oklahoma primary. Slavery (and some of the better stuff from the book) mostly ignored by the movie Cold Mountain; see also, a description of an upcoming Nicole Kidman movie (Dogville) that sounds darker than the preview I saw suggested.

Book Talk: A local law school (sponsored by the school's Federalist Society, so I got to see a couple members of that "infamous" organization ... they look so innocent) provided a chance to check out in person Randy Barnett, the libertarian law professor that is often found blogging over at the Volokh Conspiracy [as an aside, Jack Balkin has some good stuff lately]. He is promoting his new book Restoring the Lost Constitution: The Presumption of Liberty.

Barnett's argument is that the courts (and government in general) have "redacted" key parts of our Constitution such as narrow enumerated powers, the Ninth and Tenth Amendments, and the Privileges and Immunities Clause, and therefore has not properly protected our liberty. This was always a problem, but was especially the case after the New Deal limited the reach of the courts in favor of expanded government. He would allow courts, therefore, a large degree of power to in his view return us to the original meaning (public understanding) of the Constitution, which he believes is broad but fairly easy to understand. It's just a question of having the wherewithal to stick to it.

It's an interesting and (especially for a person friendly to a broad view of liberty) appealing point of view. The professor on hand to comment, however, made a good point noting that the words of the Constitution (Barnett is a big fan of a written Constitution, which in his view helps restrain government actors) isn't so easily read ... heck even the age to be President might some day be read to symbolize "maturity." Furthermore, giving courts the power to determine what is "rightful" is rather a broad diminishment of democratic power, especially since the rules of contracts and torts (etc.) that Barnett appeals to are somewhat imperfect. Still, Barnett agrees his view is "controversial," and there is a lot to recovering various chunks of the Constitution that are now mostly ignored (e.g. state power over medicine, such as medicinal marijuana). Anyway, he is a critic of the current "Eleventh Amendment" jurisprudence (many libertarians are, since it makes states immune from many suits they feel states should be liable for under basic tort rules), so his version of original intent is not all that bad!

Interesting talk [crafty too ... he used a truly rambling question to state his opinion on some matter, much like those running for president now are doing], and it might just lead me to buy his book. As he noted, that's the important thing, right? I would note as a final thing that if Chief Justice Marshall cannot be trusted to fully interpret the Constitution, partly via decisions that James Madison himself wasn't too upset about, it can't be as straightforward as he suggests. More evidence perhaps that even his watered down version of original intent has problems. I will leave the final judgment open though until I read the book! Fair is fair.

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There is, from the amici on one side, an implacable determination to retain some distinction, however trivial, between the institution created for same-sex couples and the institution that is available to opposite-sex couples. And, from the amici on the other side, there is an equally implacable determination that no distinction, no matter how meaningless, be tolerated. As a result, we have a pitched battle over who gets to use the "m" word.

-- from a dissent of an advisory opinion telling Massachusetts legislature that a recent holding striking down a ban on gay "marriage" cannot be solved by giving gays all the state benefits of the institution, but not call it "marriage."

Now, I might not be able to speak for the group in question, some of whom unsurprisingly want truly equal rights, but I tend to agree. When the opinion (4-3) was originally handed down, I thought at least one of the majority would be satisfied with the Vermont "civil union" solution. [See here why perhaps this was not possible.] After all "marriage" has symbolic significance, so applying the term itself (not the benefits thereof) might be legitimate, especially given many other states and the federal government differentiate.

The majority is quite right that this is some sense still supplies a stigma on homosexuals, but it is one largely out of the state's hands. And, though the court cannot look at things pragmatically in all cases (the law is the law, even if it's hard), they are really making things difficult politically for the "good guys," and I think it's a bad idea. True equality needs time to grow. Besides, in theory the test was "rational basis" ... it was somewhat debatable, but given state law and practice very defensible, to strike down the blanket ban. Striking down a label, largely symbolic but also (and this is key) stating the facts as they are in our current legal climate, is something else. I am left with the feeling this time the court's ruling was ill advised.

[On the other hand, as noted here, Washington D.C. has one of the higher concentrations of homosexual households in the nation ... too bad it also has one of the highest concentration of idiots as well.]

The Ohio bill, modeled on federal legislation approved by Congress in 1996, declares marriage between persons of the same sex to be "against the strong public policy of this state." But it goes beyond the federal act, and most of the so-called defense of marriage acts passed by the states, by denying state benefits to domestic partners of the same or opposite sex.

-- Ohio goes the anti-gay route


Thus, putting aside FCC Chairman Powell's interest in investigating the entire halftime show, the FCC inquiry will likely focus on whether the exposure of Jackson's breast was planned, and if so, who had advance knowledge of it. Powell has promised a "thorough and swift" investigation

-- if only his dad was as timely in investigating something a bit more important than this stupid crap

First Round: Kerry did well, Clark and Edwards won a state (OK is actually almost a tie, not too far from a three way with Kerry a near third) and came in second in a couple other places, Dean did bad, and Lieberman dropped out. Best that can be expected, I guess. Michigan, Maine, Tennessee, Virginia, and Wisconsin are scattered around the next couple weeks. Key states for Dean to stay alive and Edwards and/or Clark to target (you can probably guess which is which). The non-Kerry delegate count is still sizable enough for the others to be alive.

[btw Monday, C-SPAN covered a campaign appearance by Clark in OK that seems to have consisted of him shaking hands while people were on their way to work ... usual meet and greet, but not exactly fascinating to watch.]

Icky: Ice, mixed with slush, mixed with mid-30s temperatures, mixed with rain. Why was I out there? To catch a lecture that I will discuss next time, since it's late.

One way to find out if the chicken or the egg came first.

Groundhog's Day: The groundhog saw it's shadow, so there will be six more weeks of political campaigning. I prelude tomorrow's first round of super primaries by hoping non-Kerry gets some traction tomorrow. I also suggest to Dean-o-phobes that Deanism has its benefits, so the level of disdain is a bit much, so much that it might come around and bite ya.

Cute pussycats: Various blogs show their feline side now and again. For instance, see here and here. Many blogs therefore are Michele Judy friendly. [Meow!]

Currently reading a book on Rehnquist Justice, amounting to profiles of the current bunch on the Supreme Court. Let's say a few good things about the conservatives, hmm? Justice Scalia sometimes reminds us how the text of the Constitution and statutes matter, though not if the Eleventh Amendment is involved. Justice O'Connor's minimalism is good (especially if you are a liberal!) when conservatives are in power and on general judicial restraint grounds as well. Justice Rehnquist is a good chief justice; even liberals like Brennan and Marshall thought so. Justice Kennedy wrote some fine opinions, including on gay rights and yes federalism (see, e.g., here and here). Justice Thomas has a libertarian streak that is nice, especially on some First Amendment issues.

Something Extra: A controversial appellate judge (Circuit Judge Stephen Reinhardt) is interviewed here. Pretty interesting. A nice human interest story is found here.

Super Blown: Like their hated rivals, Boston fans have a closer, at least when it comes to football ... their kicker. Oh, he made it yet another nailbiter by missing two medium range attempts, but when he had to make a longer one (41yd) to win it at the end, no problemo. Blah. The final kick should have meant OT. After all, with over twelve minutes to play, the Panthers went for 2. Missed. Tried again later. Missed. This allowed the Pats to be able to go up by 7 late via a two point conversion, if they made it ... of course, they did. What if the Panthers just went for singles? They would have had 24 points when the Pats scored that final touchdown and surely the Pats wouldn't have risked the two points when a failure would have meant a 27-24 score instead of a 27-22. The Pats would likely have played it safe and took a 28-24 lead. And, the TD by the Panthers and field goal by the Pats would have meant a 31-31 tie, and the first Super Bowl OT. So, they didn't just defensively fail at essential moments, their coach failed as well.

Anyway, the commercials were lame. I didn't watch the half time show or the ten minutes of the game afterwards (given neither team scored, didn't seem I missed too much), so I only saw three quarters of them. All the same, they were mostly mediocre. The early one with the bear and the false id was good. The company selling broken glass pops serving as a metaphor as cigarette companies was probably the best way to promote a somewhat heavyhanded PSA. Did we really need another Ditka Levitra ad? Anyway, bad result, and bad ads. An average Sunday afternoon game would have been as good ... and the end result about the same (nailbiter, Panthers tying it late ... going to OT if they were smart ... and a kick winning the game for the Pats, after some good offensive moves by Brady et. al. put them in position). Bring on baseball season.

Sunday Opinions: I rail against the fact that no matter what some say, not everyone thought all that glittered was gold. See also here. Someone furthers my "these guys really aren't conservatives" line, explaining it really isn't conservative to nationalize subjects like gay marriage, gun lawsuits, and partial birth abortion. I'd add that one view of the Second Amendment in particular would argue states clearly have a right to regulate firearms, even if matters that affect interstate commerce generally can regulated by Congress. A conservative no less high than Clarence Thomas voiced support of the general point. Finally, Carolina should win tonight. Not saying they will ... just saying they should.

Ok, time to do my taxes.

[Factoid -- Gov't income (according to the federal tax manual) is broken down thusly: 43% personal income taxes; 35% SS, Medicare, unemployment and other retirement taxes; 8% borrowing to cover deficit; 7% corporate income taxes; and 7% excise, customs, estate, gift, and miscellaneous taxes. Outlays -- 38% retirement/disabled, 21% social programs [14% Medicaid and other needy, 7% research and health programs], 20% defense [17% military expenses, 2% veteran benefits, 1% foreign aid and embassy costs], 10% physical/human/community development, 8% interest on debt, and 3% for general government expenses (including law enforcement).]

Movies: I know this is the time of the year of light entertainment or movies that fall in between the cracks, but The Big Bounce was a bit too thin. As the star of the show, Owen Wilson, might say, it kinda blowed, was lame, and barely had enough story to fill its abbreviated 88min. running time. A few too many stock shots of the beach. Not much of a caper, but if you have a little extra time on your hands, maybe.

Mystic River on some level was about as enjoyable in my humble opinion. This Oscar bait movie was well praised, is surely serious enough (you want your Greek Tragedy? oh, it's dripping with it), but it is just tooooo heavyhanded for it's own good. Examples? How about Sean Penn's gigantic tattoo of a cross on his back? It goes well with his performance in the heavily dramatic department. Next, we have Laurence Fishburne, apparently preparing for his role as a cop by watching Law and Order reruns. Laura Linney (playing Penn's wife), again wasted, suddenly has this big dramatic scene, coming out of nowhere, near the end. Kevin Bacon is boring. In fact, the movie itself is boring ... it's over two hours long, partly because the pace is so slow. Given greek tragedy is somewhat predictable, just this leads you to think "okay, when will something real bad happen? come on!"

Tim Robbins as the mental case (he was kidnapped and molested as a kid ... his wife, also nominated as for an Academy Award, Marcia Gay Harden, clearly has problems of her own, though they are only partly hinted at in the movie) probably comes off the best, especially in a interrogation scene suggesting a part of him that we never see in the rest of the movie. The movie surely is tragic ... starts with a kidnapping, follows it up (stopping briefly with some scenes of people enjoying their lives) with a murder of an innocent teenage girl, and then only gets worst in a sense. There is enough talent for it to have a good amount of things going for it. All the same, as a whole, it is lacking. A bit more restraint, a shorter running time, and perhaps fleshing out some characters, and this would have been great. As is, it's a flawed epic, which means it fits right in with many of the "top" films of 2003.

One more thing ... Ted Kennedy's accent isn't as strong as some of the actors' in this film. Small thing, but it just adds to the "this is an easy movie to make fun of" nature of the whole enterprise. Oh, not as much as Cold Mountain ... that was just too easy.

[Update: Regarding the opinions of my companions, one basically liked it, even though she felt a bit upset in doing so given how dark it was and all. She was the one who called it a "greek tragedy." Another thought it okay, but a bit too off kilter.]