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Saturday, September 6, 2008
About that Mysterious Israeli Flag in Palin's Office:
The small Israeli flag visible in Gov. Palin's office window has been the subject of much speculation. I've even seen allegations in the blogosphere that the flag was photoshopped into a video to appease pro-Israel voters who never heard of Palin.
An Israeli-American documentary filmmaker who filmed Palin for several days a few months ago reports: "I was very surprised to see that and when I asked her about it, she said that she loves Israel and the she had friends who visited the country and brought her the flag."
Wassily or Wasilla.
At Tim Blair's blog, some are speculating about why Barack Obama might have mispronounced "Wasilla" as "Wassily."
Most of us would make more slips of the tongue than the candidates do. And it’s only natural that he would use a name he’s probably more familiar with (Wassily) than one he’s less familiar with (Wasilla). I had to struggle not to make the same substitution.
Before last week, I had never heard of Wasilla, but I had heard of Wassily. Indeed, we have two Wassily chairs based on a 1925 design by Marcel Breuer in our Hyde Park apartment, bought 30-35 years ago. These chairs are famous enough to have their own Wikipedia entry. Probably at least one of Obama's friends has such a chair.
 Wassily Chair, Marcel Breuer
As you might expect, these chairs are named after an artist even more famous than the chairs, Wassily Kandinski.
 On White II, Wassily Kandinski
So I think that Barack Obama, who lives about 10 blocks away from me and knows some of the people I know, probably was thinking of a more familiar word — Wassily — the name of a Bauhaus chair and a Russian painter, not that of a small town in Alaska. I know that when I first read “Wasilla,” I had to think carefully to avoid thinking “Wassily.”
I wonder if Sarah Palin even knows of the Breuer chairs or the Russian painter.
[And if she doesn't, I wonder if that is a good thing or a bad thing.]
Obama's favorite TV show is MASH; among McCain's is The Sopranos.
Ana Marie Cox (tip to Tim Blair):
Obama told Entertainment Weekly last month that his favorite television show is the wartime sitcom “MASH,” which, while solidly entertaining, was not exactly free of heavy-handed moralizing and liberal pieties. (It’s instructive to note here that McCain’s favorite shows include the decidedly, and admittedly, amoral dramas “The Sopranos” and “The Tudors.”)
Given the indirect (ie, nonsubstantive) nature of some of John McCain's ads, can a YouTube spot on this be only days away?
Indeed, one could imagine a funny — mock outraged — spot from either side: McCain getting his kicks watching brutal Sopranos mob hits OR Obama grooving on some particularly sappy platitudes in an outdated MASH clip. Maybe this idea would be better for one of the nightly talk shows than one of the campaigns.
Media's treatment of Palin:
The "media's treatment of Palin and her family this week has been the quintessence of hypocrisy, the vilest form of the politics of personal destruction." So I argue in my Rocky Mountain News media column today.
Based on e-mail I've gotten from some readers, it's clear that some people have so much emotional investment in their hatred of Palin that they can't read very well. So to be clear, and to amplify a point I explicitly made in the last paragraph of the column, it's legitimate and necessary for the media to ask questions about her public policy positions (including those on sex education), her record in public office, her political philosophy, whether her experience makes her well-qualified to be VP or President, and so on.
And BTW, astute readers will spot a typo: "Ronald Reagan's daughter Nancy Davis" should be "Ronald Reagan's daughter with Nancy Davis."
UPDATE. An excerpt from a reader e-mail:
I do not always agree with your stance on the issues of the day, but I am with you 150% on this issue. I wonder if you saw the op-ed page political cartoon in the Denver Post on Thurs. Sept. 9th ? As the father of an adult special needs individual, slightly older than Bristol Palin, but just as pregnent and just as unwed at this time, I was incensed at the sleeze demonstrated by this portrayal of a McCain/Palin "shotgun wedding" along with the caption undrneath the cartoon. What sent me completely over the edge however was the hand at the left of the frame holding a sign announcing that Bristol Palin is five months pregnant along with two elephant heads whispering and giggling. How low will the media go and is there anything that ordinary people like myself can do to put a stop to such behavior? I know firsthand the emotional toll that an unexpected pregnancy is exerting on our family, (she and her boyfriend have our unyielding support) but more importantly on our daughter. Here in the Palin family's case, the entire world is hearing all the details. How sad to put a confused and frightened seventeen year old through this addttional stress. My dissapointment with the Denver paper is such that I plan to cancel my subscription next week. After I saw this lowdown smear at this innocent minor, I drove down to McCain headquarters and offered my services to the campaign and made a donation to the McCain 2008 campaign. As you can see, I have been touched both emotionally and personally by what is passing for journalism in this election year.
Apparently Fraudulent Palin Bookbanning List.
In 1996, when Sarah Palin was mayor of Wasilla, she asked her town librarian how she would respond to censoring books. According to the librarian at the time, three inquiries had been made by December 1996. Palin also asked for resignation letters from some department heads and high appointments that she inherited from her predecessor (including the librarian), several of which had publicly supported her opponent in the election.
That Palin would ask about censorship suggests, but doesn't prove, that she was very probably actually contemplating asking the library to censor or remove books.
As if the truth weren't bad enough, Palin's opponents are now distributing a long, apparently phony list of books that Palin tried to ban.
On the list are the first four Harry Potter books, all published first from mid-1997 through 2000 [in the UK, and from 1998 through 2000 in the US, AFTER the censorship policy inquiries were made].
UPDATE: I see that Michelle Malkin spotted the fake list before I did, and she notes that it's being spread on the Obama Campaign site. The post is by Mark Brickman, who is described as "a member of Obama San Mateo/California 12th Congressional District, a grassroots organization that is dedicated to the election of Barack Obama."
2d UPDATE: The list has now been determined to be a complete hoax. The list has nothing to do with Palin; it is one that has been circulating for years, with exactly the same books and in exactly the same order. It is a list of important or great books that have been banned from libraries somewhere at some time.
After being up for most of the day, the Obama campaign page spreading the phony list has now been deleted. The reason I listed the background of the official Obama website blogger was because, if I had not listed his position, it would have looked like it was probably coming from the Obama campaign leadership, rather than just a low-level local Obama campaign worker who was nonetheless given a national Obama blog.
What lies will be made up next?
Does Public Choice Explain Patent Law?
What explains the evolution of patent law in the United States? My current and former colleagues, Craig Nard and Andrew Morriss, think that an interest group-based analysis provides the answer, and make the case in "Institutional Choice & Interest Groups in the Development of American Patent Law: 1790-1870." I don't know enough about patent law to know whether they're right, but I think it's an interesting thesis. Here's the abstract of their paper from SSRN:
This paper analyzes the evolution of U.S. patent law between the first patent act in 1790 and 1870, the passage of the last major patent act of the nineteenth century. During most of the nineteenth century, patent law developed in the courts, and instrumental to this development were a relatively small patent bar, a subset of the judiciary, and several repeat parties who played a role in a significant proportion of patent cases. Yet at several junctures, most importantly with the major changes introduced in 1836, but also through minor statutory changes throughout the nineteenth century, Congress intervened to alter the patent statute.
We argue that this evolution is best understood through an interest group-based analysis, focused on the question of the choice of which institution interest groups select in their efforts to alter the law. The courts and Congress each present interest groups with a different menu of costs and benefits. Although the federal courts have generally been viewed as relatively costly to capture, we argue that the nineteenth century federal bench was less costly to influence than Congress in many instances. A relatively few judges heard the vast majority of patent cases, allowing the patent bar to seek change through the courts.
There were two major and several minor patent statutes, as well. Interest groups turned to Congress for two reasons. First, despite the general agreement among bench and bar on the appropriate evolutionary path for patent law, there remained in American law a powerful strain of anti-monopoly thought, hostile to patents. Although most patent cases ended up litigated before sympathetic judges by the skilled patent bar, not every patent case did so and the proportion being litigated outside the small strata of experienced judges grew over time. And, because of the "democratic" nature of patent practice, patent law touched individuals spread across the country and made litigation before judges with an anti-monopoly orientation a real risk. Interest groups therefore turned to Congress on occasion to "lock in" changes in the law that they had achieved through the courts. They also sought Congressional aid in correcting occasional dead-ends reached in the law's development.
New Developments in Important New Jersey Eminent Domain Case:
Bill Ward, one of the attorneys representing the property owners, has a post summarizing new developments in Anzalone v. City of Long Branch, an important New Jersey "blight" condemnation case that I discussed in this August post. The city (which lost the case in a lower appellate court) is petitioning for review by the New Jersey Supreme Court, and counsel for the property owners have filed a cross-petition urging the Court to reaffirm the lower court's decision.
If the state supreme court takes the case, it might end up being one of the most important blight condemnation decisions of this decade. New Jersey, like New York, has made extensive use of "blight" designations to condemn a variety of properties that are far from actually being blighted in the lay sense of that term. As I have emphasized in many of my articles (e.g. - here), this practice is also common in many other states. Related Posts (on one page): - New Developments in Important New Jersey Eminent Domain Case:
- New Jersey Appellate Court Invalidates "Blight" Condemnation:
Columbia University Renews Effort to Use Eminent Domain to Acquire Property in Manhattanville:
I am sorry to see that Columbia University is still trying to use eminent domain acquire property in the Manhattanville neighborhood in West Harlem. Last year, it seemed that Columbia had largely abandoned this misguided policy, though it reserved the right to potentially use eminent domain to forcibly acquire "a few" commercial properties. It is now seeking to use the condemnation process to acquire several properties in the area owned by small businesses. Nick Spraygens, owner of some of the lots in question has an interesting Wall Street Journal op ed describing his plight. As he notes, New York state has some of the laxest eminent domain laws in the entire country, enabling virtually any property to be declared "blighted" and condemned. Sadly, this is also true in many other states, even in the wake of new reforms enacted as a result of the backlash against the Supreme Court's decision in Kelo v. City of New London.
I have criticized Columbia's plans in several earlier posts. See this one for the most recent, which also contains links to earlier ones. In this 2006 post, I gave some reasons why eminent domain should not be used to transfer property to universities more generally. Universities are wonderful institutions (what else would you expect a professor to say?). But if they want to expand, they should be required to purchase the land they want from willing sellers. Related Posts (on one page): - Columbia University Renews Effort to Use Eminent Domain to Acquire Property in Manhattanville:
- Saving Property from Columbia University:
Friday, September 5, 2008
Unleashing Offshore Wind Power:
The Department of the Interior is preparing to lease portions of the Outer Continental Shelf for offshore wind farms. The WSJ reports here.
The Interior Department's Minerals Management Service expects to finalize its proposed rule governing leasing of offshore acreage for alternative-energy production by the end of the year, clearing the way for development to start soon after. Already, the agency is doing environmental analyses on 10 offshore parcels that it is considering leasing this fall for wind projects. If the agency approves the leases, companies could begin exploring the areas for possible wind-turbine sites. . . .
wind accounts for only about 1% of total electricity generated in the U.S. And so far, all the wind power in the U.S. is produced onshore. The states that crank out the most -- Texas, followed by California -- boast vast stretches where the wind blows hard and where there is enough land to install hundreds of turbines to catch it.
But the onshore wind industry in the U.S. is beginning to be hampered by a lack of electrical-grid capacity to carry the power from the isolated places where wind typically blows hardest to the population centers that need the juice. Offshore wind provides a potentially big source of energy close to major coastal cities. . . .
Big obstacles remain. Wind power is more expensive than fossil-fueled energy. In the U.S., the tax breaks necessary to make it competitive are due to expire Dec. 31. Several proposals to renew the wind-power tax breaks have failed to pass Congress, typically because the bills also included controversial measures to remove existing tax breaks for other industries, notably oil producers. Whether Congress will resolve the dispute and extend the wind-power tax breaks when it returns from its recess is unclear. In the past, it has let the tax credits expire three times, prompting a lull in wind-power construction until the credits later were renewed.
Once the rules are finalized, they could help make offshore wind a reality in the U.S., particularly in the northeast. Unlike projects closer to shore that have been held up or delayed by local NIMBY organizations, federally authorized wind farms on the Outer Continental Shelf would not face such obstacles. Still, without the renewal of federal tax credits, it is unclear whether wind power will be able to compete in the marketplace.
Saving Property from Columbia University:
Columbia University is using the threat of eminent domain to acquire property in West Harlem for a new campus, and some of the local property owners are none to pleased. On Wednesday, Nick Sprayregen took to the WSJ telling the University to keep its hands off his properties.
Columbia University, a private institution, officially announced its desire for a new campus five years ago. The university zeroed in on the Manhattanville area of Harlem -- between 125th and 134th Streets, and between Broadway and the Hudson River. Since that time, while wielding the sledgehammer of the possible use of eminent domain, Columbia has purchased roughly 80% of Manhattanville.
My family has owned for almost 30 years four commercial Manhattanville properties. We run a self-storage business, plus we lease to various large retailers such as a discount store and a supermarket. For over four years we have been fighting the state and Columbia in their joint attempts to condemn my properties for the school's expansion. . . .
I look forward to my day in court. I am cautiously optimistic that it will expose as unconstitutional what Columbia and the state are attempting to do.
John Judis on Obama's rejection of Community Organizing.
In the New Republic, John Judis has an insightful analysis of Barack Obama's experience as a community organizer and his rejection of organizing (tip to Instapundit).
In truth, however, if you examine carefully how Obama conducted himself as an organizer and how he has conducted himself as a politician, if you consider what he said about organizing to his fellow organizers, and if you look at the reasons he gave friends and colleagues for abandoning organizing, then a very different picture emerges: that of a disillusioned activist who fashioned his political identity not as an extension of community organizing but as a wholesale rejection of it. Indeed, the most important thing to know about Barack Obama's time as a community organizer in Chicago may not be what he gained from the experience--but rather why, in late 1987, he decided to quit. . . .
Obama attempted to put these principles into practice in South Chicago. Kellman and Kruglik's initial objective was to revive the region's manufacturing base--and preserve what remained of its steel industry--by working with unions and church groups to pressure companies and the city; but those hopes were quickly dashed. Indeed, during his three years in South Chicago, Obama was constantly having to scale back his objectives as one project after another faltered. First, he got community members to demand a job center that would provide job referrals, but there were few jobs to distribute. Then, he tried to create what he called a "second-level consumer economy" in Roseland consisting of shops, restaurants, and theaters. This, too, went nowhere. At that point, Kellman advised Obama to move elsewhere. "Stay here, and you are bound to fail," he told him.
But Obama remained. Next, he began to focus on providing social services for Altgeld Gardens. "We didn't yet have the power to change state welfare policy, or create local jobs, or bring substantially more money into the schools," he wrote. "But what we could do was begin to improve basic services at Altgeld--get the toilets fixed, the heaters working, the windows repaired." Obama helped the residents wage a successful campaign to get the Chicago Housing Authority to promise to remove asbestos from the units; but, after an initial burst of activity, the city failed to keep its promise. (As of last year, some residences still had not been cleared of asbestos.) In waging these campaigns, Obama's organization added staff, gained adherents, and won church support, including from the congregation of Reverend Jeremiah Wright. But it failed to stem the area's overall decline. "Ain't nothing gonna change, Mr. Obama," says one resident quoted in Dreams from My Father who grows disillusioned with the Developing Communities Project. "We just gonna concentrate on saving our money so we can move outta here as fast as we can."
Publicly, however, Obama did not appear discouraged. He continued to train other organizers for the Gamaliel Foundation.
Later, after becoming a student at Harvard, Obama spoke at a conference about organizing, rejecting many of Alinsky's central ideas:
He had a litany of criticisms of Alinsky-style organizing that he wanted to put forward. He objected to community organizers' dismissal of charismatic leadership and of movements. Instead of making the point directly, he recalled a friend telling him of an IAF trainer who complained that "movements are rotten with charismatic leaders." Obama said his friend had responded, "That's nonsense. We want a movement. I would love to have Martin Luther King here right now." Obama argued that charismatic leaders and movements bring "long-term vision," and that community organizers cannot be effective without such vision.
Obama also criticized community organizers' "suspicion of politics." "The problem we face now in terms of organizing is that politics is a major arena of power," Obama said. "That's where your major dialogue, discussion, is taking place. To marginalize yourself from that process is a damaging thing, and one that needs to be rethought."
Before he was done, Obama had rejected the guiding principles of community organizing: the elevation of self-interest over moral vision; the disdain for charismatic leaders and their movements; and the suspicion of politics itself.
I've been thinking a lot about some of these issues. After Michelle Obama's speech where she said that, when she met him, Barack was talking about “The world as it should be,” not settling for “The world as it is.” Some have pointed to the source of these phrases: Saul Alinsky's Rules for Radicals. But Alinsky insisted that people focus on the world as it is. In essence, Barack reversed Alinsky's teaching by focusing on the world as it should be: the vision thing.
Left to his own devices, Barack Obama is an extremely thoughtful guy, who often reworks and synthesizes the influences he absorbs. If one looks at Obama's current education proposals, he has jettisoned most of the left-wing Bill Ayers-style ideas that the Annenberg Challenge pushed in the mid-1990s when Obama was its chair — probably because they didn't work.
The most radical of Obama's current education ideas is his proposal for mandatory universal service by school children. While many in the left-wing democracy education movement favor universal service, Ayers seems to embrace this idea less than most. Ayers is more iconoclastic (and idiosyncratic) than someone like Obama. Ayers does emphasize bringing the community into the schools and vice versa, but (from what I've read) a massive federal community service requirement is not really his style.
And — as radical as mandatory community service issue is — it is favored by many on the political right as well as in the political center. It is both radical and politically mainstream. Even John McCain has in the past at least entertained the idea of mandatory national service. I have been unable to determine so far how much experience Barack Obama has actually had with mandatory service, so I don't know whether his support for mandatory service results from experience or a lack of experience.
One area where Obama has had lots of experience but where his trademark thoughtfulness has failed him is private-public housing projects. His best friends and supporters built and managed public-private projects that failed miserably. One of the projects was one Obama worked on as a lawyer (Rezko was involved). Yet that project and one other run by one of his closest friends and advisors, Valerie Jarrett, deteriorated literally just hundreds of yards from his office on the west wall of the University of Chicago Law School. He could look out his window and see these projects as they declined. Yet he is proposing a lot more of the same.
Yet Obama's support for public-private housing projects is an exception. Usually, Obama learns from the failures of his reform proposals. Generally, he is a pragmatic idealist.
People should not confuse Obama's personality with his political orientation: by personality, Obama is the most reasonable, thoughtful, moderate person on either national ticket. He is definitely NOT an ideologue. Yet by political orientation, Obama is the most liberal or progressive candidate to be a party nominee for president in at least a half century — probably ever. That explains why he is in essence a radical incrementalist.
Painful / Potentially Harmful Religious Practices and Minors:
The Daily Mail (U.K.) reports:
Syed Zaidi faces up to ten years in prison for forcing [two] teenagers to whip themselves using a bundle of chains with sharp curved blades attached.
The device, called a zanjeer [for a photo, click on the link -EV], has been used for centuries by Shia Muslim men and boys to mourn the death of the Prophet Mohammed's grandson.
Zaidi lashed himself "until his bare back was covered in blood," then told a 15-year-old boy to do the same, and then "grabbed a 13-year-old boy by the arm, pulled off his T-shirt and made him flog himself as well. Both boys later needed hospital treatment for deep cuts to their backs."
It's apparently illegal in England for minors under the age of 16 to take part in such activities, even voluntarily (though of course it's often hard to tell with minors when such a decision is voluntary).
My sense is that the result is quite right on these facts, because this sort of behavior may well cause serious injuries. See also this post of mine about potentially, though rarely, life-threatening infant circumcision practices.
At the same time, the broader question of when it's improper to pressure children to engage in religious acts that are potentially physically painful or uncomfortable is a harder one. Fasting, for instance, is quite uncomfortable, which is one reason that people engage in it for religious reasons.
I'm inclined to say that it shouldn't be a crime to pressure your teenage children to fast, and that it certainly shouldn't be a crime simply to let them fast voluntarily -- again, noting the difficulty in determining voluntariness in many such situations -- despite the discomfort this might cause (unless the teenager has a medical condition that makes such fasting particularly dangerous). So my tentative sense is that the main distinction ought to be between (a) action that causes considerable physical pain or a significant risk of serious injury and (b) action that causes a modest amount of physical discomfort. At the same time, this strikes me as a pretty complicated question, even if the answer in some situations (e.g., whipping with blades until blood runs down your back) is pretty clear.
An extra twist: The law generally lets parents expose their minor children to considerable risk of pain and injury in typical kinds of sports (such as football), and even lets parents pressure their children to participate in such events. Should this be a benchmark for the kinds of risks that would be allowed for religious practices, so that the law would permit religious rituals that involve the same or lesser risk of pain and injury as playing football (or whatever is the riskiest sport that is generally allowed for minors)?
How to Annoy a Judge Through Excessive Rhetoric:
From Live Nation Motor Sports, Inc. v. Davis, 2006 WL 3616983 (N.D. Tex. Dec. 12):
[T]he court notes that Davis's statements are generally defiant and full of inappropriate hyperbole that do not assist the court in determining the facts. Here are a few examples from Davis's Mot[ion[] to Quash: “Defendants DO NOT ACCEPT these “Supercross LIVE!” copyright labeling by Plaintiff.” “Plaintiffs have come roaring into this federal court with the overwhelming force and the ethics, or lack thereof, of Ghengis Khan.” “Plaintiff has the gaul [sic] to ask this court to affirm its spoils with a partial summary judgment and preliminary judgment.” “A lie repeated five (5) times becomes the truth. Ten (10) times is this Plaintiff's version of the truth in this complaint.”
My sense is that judges are generally much more moved by calm argument than by fulmination -- and more moved by normal text than by ALL CAPS.
Third Circuit Holds that Search of a Cruise Ship Cabin at the Border Requires Reasonable Suspicion:
The Third Circuit has handed down an interesting Fourth Amendment case, United States v. Whitted, that considers "whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port." In an opinion by Judge Rendell, the court concluded that it does: According to the Court, reasonable suspicion is required. There's very little precedent on this issue and it's a pretty interesting set of facts, so I thought I would blog about it.
First, the facts. A cruise ship traveled from the foreign port of St. Maarten and then docked in St. Thomas, part of the United States Virgin Islands. After the ship was docked in St. Thomas, officers from the United States Customs and Border Protection boarded the boat and searched the cabins of a few suspects that the officers thought (based on their investigation) might be bringing narcotics into the United States. The officers searched the cabin when the defendant wasn't present and found a bunch of heroin stuffed into perfume bottles and a shaving cream container in a bag.
The question in the case was whether the search of a person's cabin counts as a routine border search or a non-routine border search under the Fourth Amendment. The former requires no suspicion; the latter requires a showing of reasonable suspicion. So far, the only kinds of searches that courts have found to be non-routine searches are invasive searches of the person. For example, a body cavity search is non-routine; such a search at the border requires reasonable suspicion. All other searches, of luggage, cars, computers, etc. have all been held to be routine searches that don't require reasonable suspicon.
In the court's majority opinion, Judge Rendell concludes that a search of a cabin is a non-routine search requiring reasonable suspicion. The reason: Searching a cabin is like searching a home, and the home has always received special Fourth Amendment protections. [T]he search of private living quarters aboard a ship at the functional equivalent of a border is a nonroutine border search and must be supported by reasonable suspicion of criminal conduct. The cruise ship cabin is both living quarters and located at the national border. As a result, one principle underlying the caselaw on border searches–namely, that “a port of entry is not a traveler’s home,” United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)–runs headlong into the “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” foremost in our nation’s Fourth Amendment jurisprudence, Payton v. New York, 445 U.S. 573, 601 (1980) (quoting United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring)) On one hand, that conclusion seems pretty fishy to me; the reasoning seems at bit at sea. I think the biggest problem is that I'm not sure a cruise ship cabin becomes a passenger's "home" in a Fourth Amendment sense. If you drive across the border in a mobile home, that's not a "home" for Fourth Amendment purposes; if you take a sleeper car in a train across the U.S. Canada border, that's not your home, either. Why is a cabin different? The court says is that a cabin becomes a "residence," whereas cars aren't residences: But why? If you live in a mobile home, that is in fact your residence. But the courts treat mobile homes as cars, and cars can be not only searched but actually disassembled at the border without suspicion. Why treat cruise ship cabins one way and mobile homes another way? (The court relies on an old 9th Circuit case as precedent, but the Supreme Court has slapped down the 9th Circuit's border search cases so many times that I'm not sure those precedents have much force today.) On the other hand, in defense of the rule, the rule is actually pretty narrow. As soon as the cruise ship passenger packs up his bags and leaves the boat, it is clear that all of his stuff can be searched as a routine search without any suspicion. That is, the result here requires reasonable suspicion to enter and search the cabin after the boat has docked, but lets the government do whatever it wants when the defendant steps off the boat and goes through customs. I can see some justification for such a rule. The idea would be that the Fourth Amendment injury in the case of searching a cabin at the border is one of the traditional concerns with home entry: The cops breaking into your "home" when you're asleep, or otherwise in private. Maybe that's less of a concern with mobile homes because the driver will be driving when he crosses the border, not sleeping. Or hey, maybe Judge Rendell just really likes cruises. Anyway, it's a pretty interesting case. Oh, and kudos to Judge Chagares, who wrote a sensible concurrence: It notes that because everyone agreed that reasonable suspicion did exist, there was really no need to reach out and try to answer the difficult constitutional question. (Hat tip: Blogfather Eugene)
Professional-Client Speech and the First Amendment:
The U.S. Court of Appeals for the Eighth Circuit handed down Milavetz, Gallop & Milavetz v. United States yesterday, in which the majority held unconstitutional a provision that barred debt relief agencies — including lawyers — from
advis[ing] an assisted person or prospective assisted person to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy petition preparer fee or charge for services performed as part of preparing for or representing a debtor in a case under this title.
The court concluded that:
[R]egardless of whether the government's interest in prohibiting the speech was legitimate (Gentile standard) or compelling (strict scrutiny standard), § 526(a)(4) is unconstitutionally overbroad as applied to attorneys falling within the definition of debt relief agencies because it is not narrowly tailored, nor narrowly and necessarily limited, to restrict only that speech that the government has an interest in restricting. Instead, § 526(a)(4) prohibits attorneys classified as debt relief agencies from advising any assisted person to incur any additional debt in contemplation of bankruptcy; this prohibition would include advice constituting prudent prebankruptcy planning that is not an attempt to circumvent, abuse, or undermine the bankruptcy laws. Section 526(a)(4), as written, prevents attorneys from fulfilling their duty to clients to give them appropriate and beneficial advice not otherwise prohibited by the Bankruptcy Code or other applicable law.
The decision seems quite right to me. Thanks to How Appealing for the pointer.
Obama, Heterosexism, and Capitalism:
Yesterday's Investors Business Daily reports on the Chicago chapter of Public Allies, a group with trains and pays stipends to community organizers and other youthful volunteers. According to IBD, "Barack Obama was a founding member of the board of Public Allies in 1992, resigning before his wife became executive director of the Chicago chapter of Public Allies in 1993." IBD also describes the diversity training in Chicago; it is not clear from the article whether this particular training took place while either Obama was involved in the group. IBD states that in the Chicago training, "heterosexism" is explained as "a negative byproduct of 'capitalism, white supremacy, patriarchy and male-dominated privilege.'"
Here is my bleg: do VC readers know of any serious research about a link between heterosexism and capitalism, white supremacy, patriarchy and male-dominated privilege? My initial impression is the cause and effect theory of heterosexism is quite wrong. Communist dictatorships, for example, are often quite hostile to homosexuals; yet Communist states are not capitalist, generally have legal equality of men and women, and (outside Europe) are run by non-whites. Conversely, ancient Greece was relatively tolerant of some forms of homosexuality, and yet was patriarchal, dominated by whites, and had a primitive free market.
So, is there a serious intellectual argument for the Public Allies theory of the causes of heterosexism?
Wisdom of Crowds?
Bad news for you McCain supporters (including those of you who took me rather forcefully to task for having the temerity, in earlier posts, to suggest that Sarah Palin is grossly and perhaps even grotesquely under-qualified to be President of the United States): The Iowa Electronic Market, which is a real-money futures market allowing individuals to trade in "future contracts" based upon the occurrence or non-occurrence of real-world events, has McCain futures for sale at a deep discount compared to Obama futures. It'll cost you $0.59 to get a contract paying you $1 in the event of an Obama victory, but only $0.41 for a $1` payoff if McCain wins. The IEM's track record at getting its predictions of future events correct (discussed in James Surowiecki's book on "The Wisdom of Crowds") is very good, incidentally.
Reply Brief in Pearson v. Callahan:
Today we filed the Reply Brief in Pearson v. Callahan, the Fourth Amendment and qualified immunity case that I have blogged about before. I have posted a copy of the Reply Brief here: Reply Brief for Petitioners. You can find all of the other briefs in the case, including all of the amicus briefs, here at SCOTUSWiki. Oral argument in the case is set for October 14.
Hints of a Republican Bounce.
Last week, while everyone was saying that the Democrats were not getting a bounce from their convention, I was one of the first people to note that there were hints of a big 8-10% bounce toward Obama, based on changes in the last day of one 3-day tracking poll.
Now I’m seeing the same thing for the same reasons in the Republican direction (though because of a CBS poll conducted before Palin’s speech but released yesterday showing a dead heat, I am far from the first to note a probable Republican bounce).
Today, both the Gallup and the Rasmussen tracking polls are showing a 3% move in McCain’s direction from the day before. That means that respondents polled on Thursday were 8-10% more favorable for the Republicans than those polled on Monday. If polling on Friday and Saturday continues in the same direction, that would point to a dead heat or insignificant lead for McCain by the 3-day tracking polls released on Sunday.
As I noted before, this might well not happen. There is a reason that the polling agencies use three-day averages.
More on the AALS "Boycott" of Hotel Because of Owner's Contribution to Anti-Same-Sex Marriage Ballot Initiative:
Here's a statement from three USD law professors condemning the action (which, to my knowledge, consists of the AALS's not breaching its contract to reserve a block of guest rooms, but moving conference events from the hotel): Statement on the AALS “Boycott”
1. The matter of same-sex marriage is currently a hotly debated issue in the United States, with complicated cultural, religious, and political dimensions. Americans, and presumably American law professors, hold a variety of views on this issue.
2. As various scholars and commentators have pointed out, legal recognition of same-sex marriage is likely to have a significant impact on some religious or religiously-affiliated institutions. The matter thus has potentially important implications for religious freedom. These are also the subject of a variety of views among Americans and, presumably, American law professors.
3. The Association of American Law Schools is a professional association. Its purpose is to promote the interests of law schools and the legal academy. In performing this function, the AALS can and should facilitate debate and expression among legal academics on a wide range of issues, including same-sex marriage. The AALS itself, however, is not and should not be a partisan political organization working to advance particular positions on issues about which Americans and American law professors are divided. Groups or individuals who attempt to commandeer the organization in behalf of contested political causes undermine the organization and its ability to serve the professional purposes for which it exists.
4. There has not been, to our knowledge, any careful or sustained discussion within the AALS seeking to ascertain the views of member schools or law professors or to determine whether any consensus exists regarding either the issue of same-sex marriage or the question of appropriate political or economic action by the AALS with respect to the issue.
5. In this situation, the recent announcement by the AALS of what is widely viewed and described as a “boycott” of a hotel based on an owner’s support of California’s Proposition 8 (which supports traditional marriage) reflects an ill-conceived and inappropriate action by the AALS’s leadership. Although the announcement has generated considerable confusion, it clearly seems calculated to put the AALS’s prestige and economic weight behind opposition to Proposition 8, and thus in effect to place the AALS on record as supporting same-sex marriage. Given the AALS’s purposes, this action is inappropriate and presumptuous.
6. The AALS should refrain from such inappropriate actions, now and in the future. It is likewise inappropriate for individual sections of the AALS, organized to promote particular subject matter interests (such as legal writing), to purport to speak for their own section members on political issues.
7. Individual law professors may wish to consider declining to attend the AALS conference this year as a way of expressing their disapproval of the AALS’s inappropriate decision.
Larry Alexander
Maimon Schwarzschild
Steven D. Smith
[all from the law school at the] University of San Diego (for purposes of identification only)
PLEASE NOTE: The purpose of this Statement is emphatically not to take or endorse any position on the merits of Proposition 8, but rather to call attention to what we believe is a deviation by the AALS from its proper function -– a deviation that is ultimately prejudicial to the organization and the interests of legal academics and institutions. We invite others who share our concerns, whatever their views may be with regard to Proposition 8 or same-sex marriage, to join us in encouraging the AALS and its leadership to promote the professional interests and purposes for which the organization exists.
I'm inclined to agree that academic organizations generally shouldn't boycott businesses because of the views the owners express, or the causes those owners support. The broader question of the propriety of boycotts by organizations is pretty complex, but I'm tentatively inclined to think that academic organizations have a special professional obligation not to discriminate based on people's speech or other political activity, with regard to outsiders as well as with regard to scholars and students. (I talk about this broader question in some measure in Part II of this article, though that doesn't cover the special professional duties, if there are some, of academic organizations.)
Prayer as Attempted Murder?
A reader asks an interesting question:
Some Christian Reconstructionists are urging their fellows to pray for the death of John McCain so that Sarah Palin will be become President. [Example here.] Are those who pray for McCain's death guilty of attempted murder, and are those urging them to do so guilty of incitement? It seems to me that they are. Although I don't believe that their prayers can have any effect, it seems to me that this falls into the same category as the oft-discussed firing of an unloaded gun or firing a gun into a bed that turns out to be empty. The intent to kill is present and an action has been taken in furtherance of that goal. Christians should presumably be all the more clear that this is attempted murder insofar as they believe prayer to be efficacious.
This, it seems to me, is a good illustration of the limits of analogy. It's true that asking someone to commit murder may well constitute attempted murder (as well as the crime of solicitation). The test for attempt is generally not just that "an action has been taken in furtherance of that goal" — different jurisdictions require different amounts of conduct, but all require more than just "an action" for an attempt prosecution (as opposed to for a conspiracy prosecution, where an agreement plus an overt act, even a relatively minor one, generally suffices). But when a person has asked another human being to commit the crime, especially when he hopes that the other person will commit the act with no further help from the requester, that would usually qualify. And indeed it generally doesn't matter if it turns out that the request couldn't possibly work, for instance because the person asked would never commit the crime, or was accidentally given an unloaded gun, or some such.
But people aren't the same as God, either to atheists or to religious people. One way of seeing that is that God's action wouldn't be illegal. To those who believe in God, as he is conceptualized by most Americans, God's action wouldn't even be immoral. (It's true that some people say "If God killed people for this-and-such, he would be evil," but usually they are people who don't believe that God does that.) It would be within his authority as, in a sense, the ultimate sovereign of the world.
In fact, if there is an analogy here, it would probably be to a petition to the President asking him to order an assassination that he could lawfully order (or, as to the other part of the reader's question, to exhortations to the public aimed at getting people to petition the President to order such an assassination). I would say that it's even legal to petition the President to order assassinations that are illegal; but, as I said, there's nothing illegal in God's hastening someone's death.
We could try to come up with precise constitutional foundations for this, for instance that the request to the President is protected by the Petition Clause of the First Amendment, and that a request to God is protected by the Free Exercise Clause. Or we could focus on a legal distinction between asking someone to do something that is legal for him (or Him) to do from asking a contract killer to do something that is illegal for him to do. Or we could focus more practically on the relative unlikelihood that a person who tries to cause death by prayer will switch to a gun if prayer fails. (That's one reason we punish attempted killers even when their attempts were factually impossible, for instance because the gun is unloaded: We figure they are quite likely to try with a loaded gun next time.) But we don't have to choose, because all these factors strongly point in the same direction, and strongly suggest that asking God to end a person's life is very far from asking an acquaintance or a prospective contract killer to do the same.
(I should note that there has been a little judicial commentary on attempts to kill by voodoo or withchraft, as best I can tell unanimously opposing criminal liability in such situations. See Commonwealth v. Johnson, 167 A. 344 (Pa. 1933) (Maxey, J., dissenting); Attorney General v. Sillem, 159 Eng. Rep. 178 (1863). But I'm not sure this is a perfect analogy, either, and in any event there's not much real law on that.)
Palin and American Women:
Gloria Steinem writes in the L.A. Times,
[Palin] opposes just about every issue that women support by a majority or plurality. She believes that creationism should be taught in public schools but disbelieves global warming; she opposes gun control but supports government control of women's wombs; she opposes stem cell research but approves "abstinence-only" programs, which increase unwanted births, sexually transmitted diseases and abortions; she tried to use taxpayers' millions for a state program to shoot wolves from the air but didn't spend enough money to fix a state school system with the lowest high-school graduation rate in the nation; she runs with a candidate who opposes the Fair Pay Act but supports $500 million in subsidies for a natural gas pipeline across Alaska; she supports drilling in the Arctic National Wildlife Reserve, though even McCain has opted for the lesser evil of offshore drilling. She is Phyllis Schlafly, only younger.
I haven't seen the surveys that Ms. Steinem relies on; but here's a brief summary of what I quickly did find:
On one aspect of gun control questions -- whether the Second Amendment protects an individual right of pretty much each person to own a gun -- Palin's view is shared by 58% of women (Dec. 2007, CNN). (On other aspects, Palin might indeed disagree with many women, but this struck me as a pretty important one.) If Palin does believe "that creationism should be taught in public schools," her view is probably shared by most women. Of the public generally, polls report that a significant majority favors teaching creationism alongside evolution in public schools: 65% to 29% in a 2004 CBS/N.Y. Times poll, and 58% in a 2006 Pew poll. A 2005 Harris poll actually reported that only 12% of the public supported teaching only evolution, and 82% supported teaching creationism or intelligent design either alone (27%) or alongside evolution (55%). I know of no reason for thinking that women are less likely to take this view than men: For instance, when the Pew survey asked, "What Should Be the More Important Influence on U.S. Laws? [The Bible vs. People's will]", 29% of men said the Bible (67% said people's will) and 37% of women said the Bible (58% for people's will); this suggests that if there is a gender gap on such questions, it probably wouldn't lead to many fewer women supporting creationism teaching than men.
(As to Palin's views on the subject, she has said "Teach both [creationism and evolution]. You know, don't be afraid of information. Healthy debate is so important, and it's so valuable in our schools. I am a proponent of teaching both." but later said she meant that "I don't think there should be a prohibition against debate if it comes up in class. It doesn't have to be part of the curriculum.") On global warming, Palin's statement that she "would [not] attribute it to being man-made" probably does differ from the views of women (since it's out of step with the views of the public at large, and I have no reason to think there's a large gender gap on this question). Likewise, her opposition to stem cell research does differ from the views of the public and almost certainly of women. On abortion, I suspect that both Palin and Obama disagree with most American women. There's very little gender gap on the subject, but while most women (58% in this 2003 ABC News poll, and I don't think the numbers have changed significantly since) say abortion should be legal "in all or most cases," the fraction falls to 40% if the abortion is "to end unwanted pregnancy" as opposed to when the reason is "to save woman's life," "to save woman's health," "in cases of rape/incest," or "when baby is physically impaired." I also don't know of any surveys on women's views about shooting wolves from the air (which was apparently "intended to boost moose and caribou numbers"), or subsidies for the natural gas pipeline. (The wolf program also apparently did not involve "taxpayers' millions" but "$400,000 approved to educate Alaskans about wolf killing," plus $150 to be paid per wolf killed, with an objective "of between 382 and 664 wolves" for an expected total of $100,000 or less; but I might have missed some other materials on this.) If there are no such surveys, then I see no basis for Ms. Steinem's "women support by a majority or plurality" claim, which I take it refers to all the items that follow in that paragraph, and not just some.
Daddies, Mommies, Politicians and Double Standards:
I was driving my baby daughter Eden to her four-month doctor appointment this morning, when I heard reporter Anne Korblut of the Washington Post on The Diane Rehm show defending the media's coverage of Sarah Palin and her family. She said something along the lines of, "If Barack Obama had a four-month-old special needs baby, and a seventeen year-old pregnant daughter, I'd be the first to ask whether this is the right time for him to be running for president."
Balderdash! Obama has two daughters, one born in 1998, the other in 2001. Even if we acknowledge that mommies tend to do more of the parenting than daddies, can we all agree that little girls need their daddies, and that fathering little girls creates some moral obligation to spend time with them? Good.
Since January 2005, Obama's family has lived in Chicago, while he initially spent much of his time in D.C. working as a Senator, and then, since last Spring, he has spent almost all of his time on the road campaigning. I'd be surprised if he's seen his kids more than once a month during campaign season.
Does this make Obama a less-than-ideal father? You bet it does. But he's not running for Father of the Year, he's running for president. So it's entirely proper that this has NOT been a political issue.
Enter Sarah Palin. If any reporter, Anne Kornblut or otherwise, has asked Obama how he feels about not participating in the raising of his children on a day-to-day basis, or what will happen when he's president if one his girls is sick in the middle of the night and is calling for daddy (as people have asked about Palin), I've missed it.
I agree that it's hypocritical of the "traditional values" crowd to suddenly lionize Palin, when they've been arguing for years that a mother's place is with her small children. (Dr. Laura, to her credit, has been consistent on this, and is duly critical of the Palin pick.)
But for the media to claim that there's no double-standard in how they treat Palin's family obligations and how they treat Obama's (or other male politicians, for that matter) just can't withstand scrutiny. Either it's okay to delegate one's parenting responsibilities to pursue political ambitions, or it's not.
First Annual Minnesota Conservative & Libertarian Legal Colloquium:
The University of Minnesota Law School, under Dean David Wippman, is creating an annual conference to address important legal issues from conservative and libertarian perpsectives. This year's colloquium, on the topic of "Stare Decisis in Constitutional Law," will be held October 3 at the law school, from 1:30 to 3:30 p.m. It's open to the public.
The participants are a fantastic group of legal scholars and thinkers: Amy Coney Barrett, Associate Professor of Law, University of Notre Dame Law School; Rachel Brand, counsel in the Regulatory and Government Affairs and Litigation and Controversy Departments, WilmerHale, Washington, D.C. and former Assistant Attorney General for the Office of Legal Policy of the United States Department of Justice; Orin Kerr, professor of law, George Washington University Law School and VC blogger extraordinaire; John Oldham McGinnis, Stanford Clinton Sr. Professor of Law, Northwestern University Law School; Thomas W. Merrill, professor of law, Yale Law School; Michael Paulsen, Distinguished University Chair and professor, University of St. Thomas School of Law; and Sai Prakash, Herzog Research Professor of Law, University of San Diego School of Law. Additional commentary will be provided by my colleagues Brian Bix, Frederick W. Thomas Professor for the Interdisciplinary Study of Law and Language and Heidi Kitrosser, Associate Professor of Law.
The colloquium is jointly sponsored by the University of Minnesota Law School, the Federalist Society, and the law school student chapter of the Federalist Society. My colleague David Stras and I are co-chairs of the event. More details about it can be found on the law school's website.
Poor Joe Biden:
The only other impression I'm really left with after the Republican National Convention is that watching Sarah Palin's speech, all I could think was "Poor Joe Biden--he has to debate her on national television in a month." I think he is going to have his hands full, to say the least.
I actually like Joe Biden. When I testified on the bankruptcy reform legislation, he treated me respectfully and professionally, which is not something I can say for all of his colleagues. And he ended up being a staunch supporter of the legislation and voted for it, which drew 74 votes and bipartisan support (and similar levels of support in the House).
But watching Palin I all of a sudden had a memory of when I was a kid and I recall watching with sadness Muhammad Ali's fight against a younger, stronger, sharper Larry Holmes. Ali's time was past and Holmes just ran rings around him and everyone just ended up feeling sorry for Ali and hoping he wouldn't get hurt too much (which apparently he unfortunately did). I think that Palin's debate with Biden in October could end up being a rout (although Gwen Ifill won't be authorized to stop it as a TKO). And I'm not saying this to be partisan--the debates between Bill Clinton versus Bob Dole was pretty close to a TKO in 1996 from what I recall, but I think that Palin-Biden may be even more lopsided.
One of the things that is going on here, I think, is that many in the media and elsewhere have simply made a mistake in how they think about "experience." Over the past few days, we've heard a lot of people talk about Palin's "executive experience"--especially former executives, such as Giuliani, Romney, Lingle, etc. Over the past several years, I have done a lot of work with Congress (House and Senate), Governors, the White House, and of course, I served in senior management at the FTC. And based on my experiences, the job of being a Governor or executive branch official is simply different in kind from being in the Senate. Unless you've seen it up close, I don't think you really do appreciate what it means to be, say, a Governor. Governors really do take responsibility for everything that comes across their desk and every decision that gets made. They really do have to make tough decisions. The problem with the so-called "elite media" is that they don't pay attention to what governors do, so they don't really understand what this is all about.
One thing that I have noticed, for instance, is how much more knowledgeable Governors and executive branch officials are about details of legislation and regulaiton than legislators. I recently was advising a Governor of a state on some legislation to increase the state's personal property exemptions--not thought of as a big issue. But this guy (and his staff) really wanted to delve into the details of the legislation and its likely effects, the empirical work on the topic, etc. They take responsibility for what they sign and the effects of laws and regulations that are enacted.
Based on my observations, I'd say as a rule of thumb two years as a Governor certainly exceeds four years as Senator in terms of useful experience. Senators do not have to take personal responsibility for the decisions the body makes. They don't have make tough decisions, they cut deals. This is valuable experience, but it really isn't the same sort of experience as being an executive. Governors have to show up for work every day ready to make decisions.
To put it more bluntly--the Senate is, frankly, a silly place. The people in the Senate are silly and what they do most of the time is silly. To the extent that a Senator commends himself as a serious person, as I think John McCain does if nothing else, it really is despite his time in the Senate, rather than because of it. There are a handful of other Senators who seem to remain serious despite serving in the Senate (if I had to guess, I'd predict that many of those who resist Senator-itis had significant business, military, or executive branch experience before going to the Senate). It seems like McCain has managed to serve in the Senate for a long time without losing his desire for accountability and responsibilitiy. One of the best things that Barack Obama has going for him at this point is that he doesn't yet seem like a silly Senator but a real person (I note in passing that this is a disease that Hillary Clinton will have to guard against, especially if she has to wait eight more years). Compare him to the other Senators that he ran against in the primaries--Chris Dodd, Biden. I suspect that Bob Dole and John Kerry were real, serious people at one time, but by the time they ran for President, they just seemed like (for want of a better word) "goofballs." They had been changed into Senators and that seemed transparent. Presumably Bob Dole didn't always refer to himself in the third person, did he?
As for Obama's pre-Senate experience, this is an achilles heel for him, I think, in terms of conveying this seriousness. Chris Matthews had a great line the other day where he observed, "Some people say that if the guys in Scranton knew what Barack Obama did as a community organizer they'd like him for it." Matthews continued, "No they wouldn't. What is a 'community organizer? Do the guys in Scranton think that is a real job? Do they know anyone who is a 'community organizer?'" And I think that's the problem--it isn't really a serious job and it tends to reinforce the perception of Obama as a legislator and Senator rather than someone who can take responsibility and make decisions.
One of the more amusing interviews I saw when Palin was announced was with Senator Ken Salazar of Colorado. I vaguely knew that he existed, but there's no way I could name anything he's ever done. Anyway, Salazar says, "Who is Sarah Palin. I'd never even heard of her until they announced her as VP." Now, what is so strange to me is that he thought that was a putdown of Palin, whereas it seemed to me that Salazar was actually putting down himself considering he didn't even know the name of a governor. But his world view is defined by his own importance. Of course, this isn't unique to Democrats--I remember someone writing last week (I can't recall who) that he sat with Senator Hatch at a dinner in New Hampshire when Hatch was running for President in 2000 and Hatch was both stunned and dismayed to learn how few people actually knew who he was.
So to bring this back to poor Joe Biden. When Joe Biden and Sarah Palin debate, I think that he runs a real risk of coming off as a "Senator"--which is not a good thing. He hasn't had a real job in 35 years. And he seems like a man who hasn't had a real job with real responsibilities in 35 years. His long-windedness and apparent self-importance basically emobies "Senator-itis." Palin seems smart (presumably Biden is smart too), bur more importantly she is sharp and tested and on her game as a sitting Governor. She is game-tested.
I submit that based on my personal observations, those who think she "lacks experience" to be President because she is a first-term Governor really just don't know what they are talking about. And I think her ability to "step up" and give her rocking speech at the Convention is consistent with this. Nobody really has the experience to be President--the job is sui generis. What you have to have is someone who has the intelligence and character to be able to be President. Being a Governor tests for those criteria; being a Senator does not.
So note, this is not intended as an endorsement of either ticket. It is just to say don't be surprised if the supposedly inexperienced Sarah Palin mops the floor with Joe Biden when thier debate comes in October. At this point I suspect that the only way Joe Biden is going to come out of this looking ok will be to not be Joe Biden and it seems a bit late for that.
Let's also say how relieved I am that we don't have at least one non-Senator around for this election.
Update:
I meant to say "one non-Senator" in the original post and have now fixed that.
Charles Murray on Education Reform:
The Washington Times has been running a series of excerpts this week from Charles Murray's new book, Real Education. Today's excerpt is on educating gifted children. I thought yesterday's was the most interesting of the group. Wednesday Murray argued that the country is essentially "run" by a couple of thousand "elite" politicians, business people, and thinkers.
Thursday he tackled the question of the limitations of how this elite are educated today in "Virtue? The Good?":
The topic yesterday was the elite that runs the country, drawn overwhelmingly from among the top 10 percent in intellectual ability, dubbed "the gifted." Today's topic is their education in virtue and the Good.
As someone who has spent a fair amount of time on campuses over the past 20 years, I am happy to report that today's gifted students are, for the most part, nice. They are not racist, sexist or homophobic. They want to be generous to those who are less fortunate. They say please and thank you.
But being nice is not being good. Living a nice life is not living a good life. One of the special tasks in the education of the gifted is to steep them in the study of what good means - good as it applies to virtue, and the as a way of thinking about how to live a human life.
Virtue by what definition? It sounds like a daunting question. It is not. The great ethical and religious systems of the world are in such remarkable agreement on the core issues that, practically speaking, any of them will do. Take the world's two most influential secular ethical systems, Aristotelian and Confucian, as examples. If your children grow up to be courageous, temperate, able to think clearly about the consequences of their actions, to be concerned with the welfare of others, with a sense of obligation to set a good example for others in their own behavior and to accord to others their rightful due - all of which are central tenets of both ethical systems - do you really care whether they were raised to be good Aristotelians or good Confucians?
The problem is when they are raised in no tradition at all, and instead imbibe the reigning ethical doctrine of contemporary academia, nonjudgmentalism. If they were taught merely to be tolerant, fine. But nonjudgmentalism goes much further, proclaiming that it is a sin to make judgments about the relative merit of different ways of living. Nonjudgmentalism is the inverse of rigor in thinking about virtue - a task that, above all else, requires the formation of considered judgments.
I encourage you to read the whole thing. Based on these excerpts the book looks fascinating.
The Convention's Over:
Now back to our regularly scheduled programming.
EPA Sets Tighter LawnMower Emission Rules:
Yesterday the Environmental Protection Agency finalized new regulations governing emissions from gasoline-powered lawn and marine engines (e.g. lawnmowers, weed trimmers, motorboat engines, etc.). "EPA's new small engine standards will allow Americans to cut air pollution as well as grass," said EPA Administrator Stephen L. Johnson. According to the Washington Post story:
Environmentalists, who noted that one riding lawn mower emits as much pollution in an hour as 34 cars, said the move would protect the environment and promote energy efficiency. Because spark-ignition engines release as much as 25 percent of their gas unburned in their exhaust, the EPA also estimates that the regulations, when fully implemented, will lead to a more efficient combustion process that will save about 190 million gallons of gasoline each year.
It seems that much of industry is willing to accept the rules, so they might not face a court challenge. If so, that would be good news for the EPA, which has not had much luck defending Clean Air Act regulations under the Bush Administration.
Which is "The Party in Power"?
The Republicans and Democrats are both "in power," obviously, given that the Republicans control the White House, but the Democrats control the House and Senate.
With that in mind, here's the New York Times on McCain:
The nominee’s friend described him as a "restless reformer who will clean up Washington." His defeated rival described him going to the capital to "drain that swamp."” His running mate described their mission as "change, the goal we share." And that was at the incumbent party’s convention.
After watching two political conclaves the last two weeks, it would be easy to be confused about which was really the gathering of the opposition. As Senator John McCain accepted the Republican nomination for president, he and his supporters sounded the call of insurgents seeking to topple the establishment, even though their party heads the establishment.
You would think that the author would at least mention somewhere in this article that the Democrats control both houses of Congress. You would be wrong.
I agree that voters perceive the Republicans to be "in charge," in part because barely half even know that the Democrats control the Congress. But the Times piece presents things as if it's not just a political problem for McCain, but logically problematic for a Republican to run as a reformer who will clean up Washington. Even though Capitol Hill is, and is very likely to remain, a Democratic stronghold, according to the Times, the Democrats are the "opposition party." (see also Shales in the Washington Post). Anyone want to bet on whether the Times will have a story on how problematic it is for Barack Obama to run as a reformer when he is a Senator and his party controls the Senate?
Libertarianism and McCain-Palin:
Ilya asks whether Palin has libertarian tendencies. What strikes me about McCain-Palin is that this is the first all-Western ticket in history. I'm not sure how to say this exactly, except that the vibe you get from them is a distinctive vibe. Just Clinton-Gore in 1992 had a sort of "Southern" vibe. And the western vibe doesn't feel like the Texas vibe (thank goodness), which is something still distinctive unto itself. In terms of personal style, for instance, George W. Bush and Anne Richards were very similar characters despite their ideological differences.
What is the "western" vibe? This is purely subjective, but to me it is the feeling of no-nonsense, self-reliant, egalitarian, outsiderism, sort of Barry Goldwater-ish. Is it libertarian? Not exactly, but it does have that sort of feeling to it, to me at least. It feels like Goldwaterism. And I think this trickles through to the worldview of the candidates and then to policy. It seems pretty clear to me (especially after last night) that John McCain sees himself as Gary Cooper riding into to town to single-handedly clean-up corruption and gun down the rascals.
Palin has a female version of this feel to me. I saw one similar point by Chris Matthews talking about Palin--he observed that although women are going to like Palin "men will like them too." Why? Because she likes men, and peole like those who like them. What does he mean? I think it is related to this. She has a sense of independence. But also, she obviously likes sports (and was a sportscaster), her speech suggests that she likes cracking jokes and being sarcastic but in a non-mean-spirited way (contra some of Jim's observations--her cracks come across as locker room "razzing" to me). This has a western tinge to me as well.
The only caveat to this is that McCain's westernism is tempered by his military background. And frankly, this is what concerns me most about him--his mind seems like a command-and-control, top-down worldview. To put the matter more elliptically to many but more accurately to my thinking, I think he simply does not understand or trust the idea of spontaneous order. In his worldview, things happen (good or bad) because somebody makes them happen. This is not a worldview that is conducive to understanding spontaneous order. That's a statist streak in him that offsets some of his westernism.
What I think bothers some people about this western vibe is that the self-reliance and independence sometimes comes off looking like a loose cannon or shoot-from-the-hip cowboyism. That's the rap that people tried to lay on Goldwater (successfully) and Reagan (less successfully).
I've lived all over the country, so maybe I'm just more attuned to this sort of local culture feeling, but that's the vibe I get from McCain-Palin.
Update:
A commenter submits Eisenhower-Nixon as an "All-Western" ticket preceding McCain-Palin (Kansas-California). I have no comment on their vibe as I was negative 14 years old when they were elected, so I'll defer to others about whether they had a western "vibe."
Obama’s speech includes more negative attacks than Palin’s.
In an earlier post, I looked at the relative absence of sarcasm in Sarah Palin’s attacks on Barack Obama and Democrats in her acceptance speech.
At 42 minutes, Obama’s acceptance speech was only about 6 minutes longer than Palin’s. In Obama’s speech, there were only three statements that were probably sarcastic:
In Washington, they call this the Ownership Society, but what it really means is — you're on your own.
Out of work? Tough luck.
No health care? The market will fix it.
Born into poverty? Pull yourself up by your own bootstraps — even if you don't have boots.
These three assertions should probably be viewed as sarcastic because when he says “The market will fix it,” he actually believes the opposite. The same applies to his statements about bootstraps and “Tough Luck.” (However, these three statements might be viewed as not sarcastic because, though he is speaking sarcastically, these comments are part of a larger argument about the views prevalent in (Republican) Washington.)
Like Palin, Obama generally prefers to attack without using sarcasm. Also like Palin, Obama sometimes uses hyperbole to characterize his opponents’ views.
Here are the other passages in which Obama attacks McCain, Republicans, or Republican administrations:
1. John McCain likes to say that he'll follow bin Laden to the gates of hell — but he won't even go to the cave where he lives.
2. I don't know what kind of lives John McCain thinks that celebrities lead, but this has been mine.
3. Because next week, in Minnesota, the same party that brought you two terms of George Bush and Dick Cheney will ask this country for a third. And we are here because we love this country too much to let the next four years look like the last eight. On November 4, we must stand up and say: "Eight is enough."
4. John McCain has voted with George Bush 90 percent of the time. Sen. McCain likes to talk about judgment, but really, what does it say about your judgment when you think George Bush has been right more than 90 percent of the time? I don't know about you, but I'm not ready to take a 10 percent chance on change.
5. For over two decades, he's subscribed to that old, discredited Republican philosophy — give more and more to those with the most and hope that prosperity trickles down to everyone else.
6. America, we are better than these last eight years. We are a better country than this. . . . We are more compassionate than a government that lets veterans sleep on our streets and families slide into poverty; that sits on its hands while a major American city drowns before our eyes.
7. The truth is, on issue after issue that would make a difference in your lives — on health care and education and the economy — Sen. McCain has been anything but independent.
8. He said that our economy has made "great progress" under this president.
He said that the fundamentals of the economy are strong.
And when one of his chief advisers — the man who wrote his economic plan — was talking about the anxiety Americans are feeling, he said that we were just suffering from a "mental recession," and that we've become, and I quote, "a nation of whiners."
A nation of whiners? Tell that to the proud autoworkers at a Michigan plant who, after they found out it was closing, kept showing up every day and working as hard as ever, because they knew there were people who counted on the brakes that they made. Tell that to the military families who shoulder their burdens silently as they watch their loved ones leave for their third or fourth or fifth tour of duty. These are not whiners.
9. Now, I don't believe that Sen. McCain doesn't care what's going on in the lives of Americans. I just think he doesn't know. Why else would he define middle class as someone making under 5 million dollars a year?
10. How else could he propose hundreds of billions in tax breaks for big corporations and oil companies but not one penny of tax relief to more than 100 million Americans?
How else could he offer a health care plan that would actually tax people's benefits, or an education plan that would do nothing to help families pay for college, or a plan that would privatize Social Security and gamble your retirement?
11. It's not because John McCain doesn't care. It's because John McCain doesn't get it.
12. Well, it's time for them to own their failure. It's time for us to change America.
13. Tonight, more Americans are out of work and more are working harder for less. More of you have lost your homes and even more are watching your home values plummet. More of you have cars you can't afford to drive, credit card bills you can't afford to pay, and tuition that's beyond your reach. These challenges are not all of government's making. But the failure to respond is a direct result of a broken politics in Washington and the failed policies of George W. Bush.
14. Change means a tax code that doesn't reward the lobbyists who wrote it, but the American workers and small businesses who deserve it. Unlike John McCain, I will stop giving tax breaks to corporations that ship jobs overseas, and I will start giving them to companies that create good jobs right here in America.
15. Washington's been talking about our oil addiction for the last 30 years, and John McCain has been there for 26 of them. In that time, he's said no to higher fuel-efficiency standards for cars, no to investments in renewable energy, no to renewable fuels.
16. And just as we keep our keep our promise to the next generation here at home, so must we keep America's promise abroad. If John McCain wants to have a debate about who has the temperament, and judgment, to serve as the next commander in chief, that's a debate I'm ready to have.
17. For while Sen. McCain was turning his sights to Iraq just days after 9/11, I stood up and opposed this war, knowing that it would distract us from the real threats we face. When John McCain said we could just "muddle through" in Afghanistan, I argued for more resources and more troops to finish the fight against the terrorists who actually attacked us on 9/11 and made clear that we must take out Osama bin Laden and his lieutenants if we have them in our sights.
18. And today, as my call for a time frame to remove our troops from Iraq has been echoed by the Iraqi government and even the Bush administration, even after we learned that Iraq has a $79 billion surplus while we're wallowing in deficits, John McCain stands alone in his stubborn refusal to end a misguided war.
That's not the judgment we need. That won't keep America safe. We need a president who can face the threats of the future, not keep grasping at the ideas of the past.
19. John McCain wants to follow George Bush with more tough talk and bad strategy, that is his choice — but it is not the change we need.
20. The Bush-McCain foreign policy has squandered the legacy that generations of Americans — Democrats and Republicans — have built, and we are here to restore that legacy.
21. So I've got news for you, John McCain. We all put our country first.
If one compares Palin’s speech to Obama’s, it appears to me that they used similar amounts of sarcasm (not much), but Obama made considerably more extensive negative comments about McCain and Republican administrations than Palin did about Obama and Democrats. Palin’s negative comments, however, were on balance funnier, better written, and more pointed than Obama’s. Neither candidate’s comments were entirely fair in every characterization of their opponents’ positions.
By continuing to spread false memes about the nature of Sarah Palin's speech as if they were true, the press marches forward in the most biased season of political reporting I've seen since at least 1998.
Was Sarah Palin More than Passingly Sarcastic?
One of the memes being spread by some Democratic reporters and other Obama supporters after Sarah Palin’s speech was that she was very sarcastic.
I don’t know whether these commentators don’t understand what “sarcasm" is or whether this is just another example of the blatant orgy of sexism with which Sarah Palin has been greeted. Already spreading this false |
