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Never forget!
I ran for Idaho state senate in 2008--didn't win
I've written a number of history books, as well as scholarly and popular articles, (see my web page).
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Take Me Home: The John Denver Story (2000)
I caught this movie on the Country Music Television channel. (This is proof that I was channel surfing--you won't find me watching CMT intentionally.) I don't know how accurate it is--this review seems to think that it suffered from pretty serious accuracy problems--but it was a very touching film.
The film portrays John Denver's start in the mid-1960s, singing with a folk music trio, in an America so incredibly straight-laced and squeaky-clean that I am not sure that most Americans under 30 will quite believe it. At one point, he drives a hundred miles to ask Annie out on their first date--and she points out that she can't do it, because the dorm she lives in has a curfew. (Yeah, colleges used to operate in loco parentis, which means "in place of the parents." They attempted to protect the virtue and health of their students. Try not to laugh. If I have to explain why discouraging casual sex was considered a good idea, well, never mind.)
I remember that America--although it was going away as I arriving. It was not perfect. It was often hypocritical--but I would argue that it was better to have high aspirations often not met, than to aspire to nothing at all. Watching Chad Lowe's portrayal of this painfully sweet and decent guy pursuing and then marrying an equally sweet and decent Annie put a big lump in my throat. I would like think that there are lots of relationships starting today like that, but the tales that I hear from college students make me think otherwise.
I've always been pretty conflicted about John Denver. John Denver's politics, as near as I could tell, were a mixture of good intentioned liberalism and bunny-hugger environmentalism. Not good, but there were a lot of entertainers embracing vastly more damaging ideas during the 1970s and early 1980s. Denver almost seems like a conservative compared to a lot of the pro-totalitarian nonsense that flows out of Hollywood these days.
I will tell you that it is impossible for me to listen to much of the music that put him on the map without misting up: "Leaving on a Jet Plane", "Annie's Song", "I'm Sorry", "Sunshine On My Shoulders", "Rocky Mountain High", "Poems, Prayers, and Promises", "Country Roads". There are songs like "The Eagle & The Hawk" that are so evocative that when I hear it, I feel like I am in the Rockies. (Wait a minute! I do live in the Rockies now, or at least within an hour's drive!)
Some of his songs are completely forgettable--just so cute and cloying that I can't take them serious, like "Thank God I'm A Country Boy!" And there is one song that I have heard by him twice, the title of which I do not remember. It is one soldier in a hospital bed trying to wake up the soldier in the adjoining bed, talking about how they are finally going to go home--and as the song continues, and the other soldier doesn't respond, the desperation in the singer's voice increases. It is a shatteringly powerful song--and one that deserves to be heard more often.
The film portrays the dark side of John Denver--a talented songwriter whose relationship with his father (played in an understated way by Gerald McRaney) was difficult, and consequently was unable to be the father to his adopted children that he should have been. The film also gives a pretty dark portrayal (presumably based on John Denver's autobiography) of a guy so driven by the pursuit first of fame and adoration, then by his political desires, that he destroyed his relationship with Annie, both by adultery while on tour, and because he clearly had not worked through a lot of his personal demons. (The scene with the chainsaw is pretty chilling--I found myself wanting to yell, "No, that will be the end of the marriage!") On a smaller scale, I've seen too many marriages destroyed by that sort of pursuit of wealth in the electronics industry. Learn from the lesson.
No Bias In This Reporting, Oh No...
From the Boston Globe: A petty win for Romney
UPDATE: I'm told that in spite of the appearance, this columnist is actually an opinion writer, not a reporter.
Having failed to prevail in the judicial arena on a profound question of equal rights, Governor Mitt Romney has been reduced to scoring a petty procedural victory over many same-sex couples planning to marry this month.
The Political Equivalent of Dimensionless Points, Frictionless Surfaces, and Perfect Gases
When I took physics, we made a lot of simplifying assumptions: dimensionless points; wires of zero thickness; frictionless surfaces.
In chemistry, you learn that the gas laws are close, but not perfect, because of van der Waals forces. Helium is pretty close, but there is no perfect gas.
Engineering involves working with real materials, and real problems.
A reader responded to my criticism of Randy Barnett's libertarian theory of the Constitution: Laws against public nudity: Sir, simply put, without public lands,
This is the political equivalent of a dimensionless point. It is a simplifying assumption that has little to do with the real world. In an Ayn Rand or Robert Heinlein novel, there can be a society where there are no public places--even the courthouses might be leased from private parties, and subject to the rules those owners impose.
you could not have public nudity. If all lands were private, as they well
should be, then a person could only perform any act (nude or otherwise) on
his own land or the land of those who allowed it. Thus, the idea that
government must protect its people from themselves on "public land" is no
longer necessary. And I feel you might object that there are necessarily
public lands: this is nonsensical. In order to prosper, private land owners
would have to listen to the demands of their local regional etc markets.
And wanting to prosper, all things which were sought would be provided, at a
price set by that old demand/supply model. So, businesses and the streets
on which they are located, as well as highways, parks, etc, would be private
property and regulated only by the wants of those willing to pay for
services, allowing the more successful men to prosper and buy new lands,
which will also provide what the markets demand.
The same argument for sex with animals in public places.
Animal cruelty laws: again, the public land issue. Also, the way
non-human animals have been viewed throughout our history is as property.
If they are truly property, no one should have a say in what their owners
do. If not, then that must be proven to the world at large, as even in
reading history etc our children are learning to view them as such.
Real world law has to be like engineering--something built on the real world, and the limitations of real governments, and real people.
This May Be Too Depressing a Story to Read
If you aren't in a good mood right now, skip past this story. I mention it because it brings out two important points:
1. Mental illness treatment in America is a disaster.
2. No man is an island; disasters lead to more disasters.
Hughes, 38, a homeless Lafayette man, was found dead in a wooded area near Tapawingo Park in West Lafayette. The Tippecanoe County coroner's office has not yet assigned a cause or manner of death, but investigators suspect health problems and alcohol abuse contributed to his demise.
Yes, I guess that it did.
Unemployed for the past year and unable to secure housing or health insurance, Hughes' ex-wife, Jerri Hughes, said the father of her two children had neglected his diabetes. Declining health and his 15-year battle with depression likely were factors in his death, she said Tuesday.
"Because of his situation, he wasn't able to get help with his health," Jerri Hughes said of the man she was married to for 11 years.
They divorced amicably in 2002, and Robert Hughes visited her and their children, Daniel, 12, and Chelsea, 11, at their Lafayette apartment several times a week.
...
Since being released from the Tippecanoe County Jail in February, Hughes, a former truck driver, had spent much of his time at the Seeds of Hope day shelter operated by the Mental Health Association. Most evenings he spent at the Lafayette Urban Ministry shelter.
Hughes was arrested in December after police were called to the Lafayette home of his then-girlfriend, Virginia Clark, in response to a domestic dispute. Police found that Hughes was wanted on a warrant for check deception. He was released Feb. 27 on his own recognizance, and the check deception charges were dropped April 27.
Clark, who obtained a protective order against Hughes after his December arrest, said she was saddened by his death.
"I'm sorry he's gone. It's a loss," she said. "I feel bad for his kids."
...
Jerri Hughes said her former husband had fought depression since his first wife, Susan Bowsher Hughes, and their two children, Ashlyne Hughes, 2, and William Bowsher, 1, were murdered in 1988.
Last June, when Joseph L. Trueblood was executed for the triple murder, Jerri Hughes said, Robert felt relief.
"He was elated that it was finally over," she said. "It didn't end his pain, but he finally got justice, he felt."
According to court testimony, Susan Bowsher had decided to leave Trueblood and reunite with Hughes at the time she and her children were killed.
John Meyers, Tippecanoe County deputy prosecutor, who prosecuted the case against Trueblood, was surprised to learn the circumstances of Robert Hughes' death. He has an admittedly faded memory of a very distraught father at the time of the 1990 trial.
"My recollection is that we had talked to him about testimony," Meyers said of Robert Hughes. "He was very cooperative and supportive and attended quite a few of the hearings. He also, as I recall, felt very emotional about the loss of the children. It really hit him hard as I recall."
The KKK & Al-Qaeda
A reader pointed me to a very thoughtful column that, while not directly tied to Dr. Rice's comparison, dovetails with it well: About eighty years ago and only a few miles from my home, the Ku Klux Klan was reborn in an explosion of fiery crosses on top of the massive granite outcropping known as Stone Mountain. The men who attended this celebration were convinced that they represented what was finest in southern culture, and that their newly resurrected organization would be dedicated to preserving the heritage of the White Anglo-Saxon Protestant values that had been so integral in the creation of the United States.
What is more, the hooded men on top of Stone Mountain were by no means alone in thinking of themselves in this way, since at the time there were many other Americans who would have agreed with this flattering self-assessment, fellow travelers of the KKK and their apologists all across the United States, as well as many of the leading politicians of that not terribly distant epoch, including, of course, distinguished Senators.
Were they right? Did the men on top of Stone Mountain truly stand for what they claimed? Did they indeed speak for all white southerners?
This was a difficult question to determine at the time, because any white southerner who happened to speak out openly against the KKK would almost certainly face some form of retaliation from the Klan itself, administered in varying degrees of severity.
The Klan, after all, wore those hoods and sheets for a reason -- in fact, for two reasons.
...
Now what, you ask, does all of this have to do with Dr. Daniel Pipes, and the current controversy about President Bush's nomination to the U.S. Institute of Peace?
To answer this question, substitute Arab culture for southern culture, Islam for Protestantism, and Islamic terrorists for the KKK; and then ask yourself: Who today is the true defender of Muslim culture and the ethos of Islam -- those who commit terrorist outrages, and their apologists? Or those who, like Dr. Pipes, denounce the actions of such ruthless thugs, and who point steadily to those aspects of the Islamic tradition that are life-affirming, moderate, and humane?
Merely to ask such a question is to reject the paradigm of culture that has come to dominate so much contemporary academic and pseudo-liberal thinking, namely the naïve multiculturalist's simplistic concept of a culture as a single monolithic entity, homogeneous and immutable. Instead, it presupposes a far more sophisticated concept of culture as a locus of conflicting values, from the perspective of which Islamic culture, like southern culture, is a living, changing organism, riddled with deep divisions and fraught with dialectic tensions, punctuated with lacerating periods of internal conflict in which two different interpretations of one and the same culture have struggled for dominance, with one side often intent on destroying every trace of its opponent.
Precisely such a struggle for cultural dominance was fought out in the American south during the course of the twentieth century; and precisely such a struggle for cultural dominance is being fought out today in the Islamic world. Indeed, Islamic culture, in this respect, is no different from southern culture, and indeed, like every culture known to us. It has its better angels, but it has its demons as well; and the eternal question is, as always, Which shall be allowed to triumph?
Ted Koppel On The Iraq War
He spoke at UC Bezerkley commencement, and to my surprise: Under fire for a recent broadcast on fallen U.S. soldiers in Iraq, veteran U.S. television anchor Ted Koppel said on Thursday that he was not opposed to the U.S. war there but questioned the way it was being conducted.
Well that describes my feeling as well.
"I know that many of you here today oppose the war in Iraq. I do not," Koppel told a commencement convocation at the University of California, Berkeley. "I have many questions and reservations about how that war is being conducted but I do not oppose it."
He does seem to be promoting the "I was only following orders" defense (say it with a thick German accent): "It is quite extraordinary that so much attention is still being focused on the culpability of a bunch of young military police, when they, in fact, were clearly operating under guidelines that had been set much, much further up the command chain. It is the legitimacy of those guidelines that require public discussion."
Encouraging a Coup d'Etat in America
Sidney Blumenthal's column in the Guardian seems to be a nudge, nudge, wink, wink encouragement of a military coup d'etat against Bush: One high-level military strategist told me that Rumsfeld is "detested", and that "if there's a sentiment in the army it is: Support Our Troops, Impeach Rumsfeld".
The Council on Foreign Relations has been showing old movies with renewed relevance to its members. The Battle of Algiers, depicting the nature and costs of a struggle with terrorism, is the latest feature. The seething in the military against Bush and Rumsfeld might prompt a showing of Seven Days in May, about a coup staged by a rightwing general against a weak liberal president, an artefact of the conservative hatred directed at President Kennedy in the early 60s.
In 1992, General Colin Powell, chairman of the joint chiefs, awarded the prize for his strategy essay competition at the National Defence University to Lieutenant Colonel Charles Dunlap for The Origins of the American Military Coup of 2012. His cautionary tale imagined an incapable civilian government creating a vacuum that drew a competent military into a coup disastrous for democracy. The military, of course, is bound to uphold the constitution. But Dunlap wrote: "The catastrophe that occurred on our watch took place because we failed to speak out against policies we knew were wrong. It's too late for me to do any more. But it's not for you."
The Origins of the American Military Coup of 2012 is today circulating among top US military strategists.
Democratic Hypocrisy Calling For Rumsfeld's Head
Charles Krauthammer points out that the Democrats had a different view of the matter when the crimes were worse (dozens of Americans died), and when the Cabinet official was more directly involved in the process: Democrats calling for Donald Rumsfeld's resignation invoke the principle of ministerial responsibility: a Cabinet secretary must take ultimate responsibility for what happens on his watch. Interesting idea. Where was it in 1993 when the attorney general of the United States ordered the attack on the Branch Davidian compound in Waco, which ended in the deaths of 76 people?
Janet Reno went to Capitol Hill and said, "It was my decision, and I take responsibility." This was met with approving swoons and applause. Was she made to resign? No. And remember: This was over an action that did not just happen on her watch but that she ordered -- an action that resulted in the deaths of, among others, more than 20 children.
Given the fact that when they were in power Democrats had little use for the notion of ministerial responsibility, their sudden discovery of it over Abu Ghraib suggests that this has little to do with principle.
Barbarism At Abu Ghraib Prison
Here's the story you won't find on the evening news: As perfect justice, the story in fact begins in Abu Ghraib prison, in 1995. With Iraq's economy in a tailspin, Saddam arrested nine Iraqi businessmen to scapegoat them as dollar traders. They got a 30-minute "trial," and were sentenced, after a year's imprisonment, to have their right hands surgically cut off at Abu Ghraib prison.
The amputations were performed, over two days, by a Baghdad anesthesiologist, a surgeon and medical staff. We know this because Saddam had a videotape made of each procedure. He had the hands brought to him in formalin and then returned to Abu Ghraib. Oh, one more thing: The surgeon carved an X of shame into the forehead of each man. And the authorities charged the men $50.
...
Last year, after we liberated Iraq, a veteran TV news producer named Don North--who has worked for major U.S. broadcasters--was in Baghdad with the U.S. to restore TV service. Iraqi contacts there brought him a tape of the men's amputations. Mr. North says dismemberment was common in Saddam's Iraq and that if one walks down a crowded Baghdad street one may see a half-dozen people missing an ear, eye, limb or tongue. He decided to seek out the men whose stubbed arms represented the civilized world's lowest act--the perversion of medicine.
He found seven. Mr. North determined to make a documentary of their story and get medical help for them.
...
But flying seven Iraqi men out of Baghdad is easier said than done. In this case, prodded by Don North and government friends, the famous U.S. bureaucracy gave itself a day off. Paul Bremer wrote a memo authorizing their departure. Paul Wolfowitz told the Air Force it could fly them to Frankfurt. Homeland Security waived visa requirements.
Continental Airlines donated passage to Houston. There, Dr. Agris enlisted a fellow surgeon, Fred Kestler, to assist. The Methodist Hospital donated facilities, and the men arrived in Houston in early April.
Dr. Agris saw that the Abu Ghraib "surgeries" were a botch. They'd cut through the joining of the wrist's carpal bones, "like carving a Turkey leg." Saddam's doctors did nothing to repair the nerve endings, which left the men with constant real and "phantom" pain. Drs. Agris and Kestler had two preliminary tasks: Repair the nerves, and, alas, take another inch off the men's lower arms, to leave a smooth surface for attaching their new prosthetic "hands." They worked for two days operating on the seven men, who then took a week to recover before receiving their new hands.
Those devices were donated by the German-American prosthetic company Otto Bock, at a cost of $50,000 each. They are state-of-the-art electronic hands, with fingers, which respond to trained muscular movements. The rehabilitation and training is being donated by two other Houston companies, TIRR and Dynamic Orthotics. The Iraqi men are in Houston now, spending five hours a day learning to use their new right hands. And oh yes, the brands on their heads were removed.
Excuse Me While I Go Into Shock
Falsehoods from gun control group are actually corrected in a major newspaper! The Chicago Tribune's coverage of the Million (give or take 900,000) Mom March was just corrected:An article Monday about the Million Mom March incorrectly reported that Uzi submachine guns and AK-47 assault rifles were included in the 1994 assault weapons ban. In fact, both those types of weapons were banned before the 1994 law, which prohibits the manufacture or importation of 19 types of weapons, including other Uzi guns and other AK-type assault rifles.
The Tribune regrets the errors.
South Carolina Repeals One Gun A Month Law
The details are here. These sort of laws are in the category of flaming nuisances. The objective is to stop gun trafficking--without having to actually look for and arrest gun traffickers. This is rather like requiring speed governors on cars, so you don't have to actually punish speeders.
There are odd circumstances where a one gun a month law might well significantly interfere with an individual's right to keep and bear arms. For example, if you were burglarized, and you needed to buy a handgun (for concealed carry) and a shotgun (for home defense) immediately. But most of the time, these laws have little impact on legitimate gun owners. They are still dangerous, however, because once you have accepted the legitimacy of one gun a month, why one gun every two months? Or every year? Or every five years? Those would become major impediments for legitimate gun owners.
Ohio Concealed Carry Permit Law Working
From the Toledo Blade: Two men were charged yesterday in the robbery of a West Toledo carryout during which one of them was shot twice by a store employee.
Talk about just in time!
Detectives said they issued a warrant charging Jose J. Custodia-Mota, 22, with aggravated robbery. He was taken to Toledo Hospital after being shot once in the leg and once in the shoulder. A hospital spokesman said she had no information on a patient by that name.
His accused getaway driver, Alberto Martinez, 32, who gave Lucas County jail officials a Toledo address, was arraigned on the same charge in Toledo Municipal Court. He was being held in the jail in lieu of $50,000 bond. Police believe both suspects are from Columbus. The 23-year-old employee, Habib Howard, whose family owns the store, Howard's Carryout, 3730 Monroe St., was not hurt. Authorities said he used his handgun during the shooting, and he has a carry-concealed weapon permit that he obtained in Fulton County.
Mr. Howard's father, Herbie, said yesterday his son received the permit three days ago.
Crooks This Hardworking Deserve A Real Job
From Reuters: OKLAHOMA CITY (Reuters) - Oklahoma police are looking for grease bandits who made off with 5,000 pounds (2268 kg) of used cooking oil and grease from three restaurants.
Police in Edmond, north of Oklahoma City, said on Thursday the grease bandits have hit an area of Mexican, Chinese and steak restaurants over the past three months.
The robbers took the used cooking grease that was stored in large cylinders in back of the restaurants.
The restaurants were planning to sell the grease to a recycling company and the total value of the stolen goods was about $380.
When Ann Coulter Is Good, She Is Spectacular!
You will recall (or maybe you won't) my comments about Los Angeles Times editor John S. Carroll's complaints about Fox News not being "real" journalists, because they have a political agenda. I wish that I written something as sharp as this: Last week, John S. Carroll, editor of the Los Angeles Times, delivered a lecture during "Ethics Week" of the Society of Professional Journalists. The speaker has not yet been announced for "Abstinence Week" of the Society of Professional Whores.
But having gotten the cheap laugh, there's real substance to the rest of the column. After pointing out that the claim that Fox News watchers are ignorant, because they disproportionately believe that there was an Iraqi connection to al-Qaeda, Coulter points to a number of pieces of evidence, including the Czech intelligence service's claim to have seen Mohammed Atta meeting with an Iraqi intelligence officer in Prague a few months before 9/11: Interestingly, liberals refuse to believe Czech intelligence on the Prague meeting ... because the CIA doesn't believe it. Apparently, this is the lone, singular assertion by the CIA that liberals wholeheartedly trust. The CIA also concluded that evidence of WMDs in Iraq was -- in the words of CIA director George Tenet -- a "slam dunk case." But liberals hysterically denounce that CIA conclusion as a "misperception" created by Fox News Channel.
She also points that David Kay's report does certainly show that, if Iraq didn't have WMDs in large quantities, they certainly had the capability to produce them, and had committed a number of violations of existing Security Council resolutions on aggressive weapons.
I had mentioned this curious story from a month or so ago, asking, "Where did al-Qaeda get the nerve gas--apparently in quantity--for this planned attack on the Jordanian government?" Oddly enough, the Washington Post reported on December 12, 2002: The Bush administration has received a credible report that Islamic extremists affiliated with al Qaeda took possession of a chemical weapon in Iraq last month or late in October, according to two officials with firsthand knowledge of the report and its source. They said government analysts suspect that the transaction involved the nerve agent VX and that a courier managed to smuggle it overland through Turkey.
According to some reports, the chemical weapons seized in Jordan included VX.
I'm sure that's just a coincidence, of course. That Washington Times article has some interesting statements from an interview with someone named John Loftus: Q: David Kay said, in an interim report, there was a possibility WMD components were shipped to Syria.
A: A possibility? We had a Syrian journalist who defected to Paris in January. The guy is dying of cancer, and he said, "Look, my friends in Syrian intelligence told me exactly where the stuff is buried." He named three sites in Syria, and the Israelis have confirmed the three sites. They know where the stuff is, but the problem is the United States can't just go around invading Arab countries.... We know from Israeli and defectors' intelligence that the son of the Syrian defense minister was paid $50 million to bring the stuff across the border and bury it.
Maybe There's A Place For These Guys On Air America
A couple of DJs lost their jobs out in Portland: PORTLAND - The radio station KNRK at 94.7 FM is issuing an apology to its listeners after talk show hosts Marconi, Tiny and sidekick Nickie J. laughed at and ridiculed the beheading of American Nick Berg.
If you think that Air America wouldn't hire these turkeys, read this.
The three were fired Thursday afternoon, after airing the audio recording of Berg's murder repeatedly on Wednesday and laughing at the incident.
If A Couple Of These Long Posts Look Familiar...
I have updated them with some additional material from Federalist 84 concerning the authority of state governments.
What Rights Are Retained?
In re-reading Federalist 84, I found this significant argument: It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
Hamilton is making the case for why the people should be trusted, and I will confess that I have less trust in the democratic rule than Hamilton purports to have. Admittedly, this was a pamphlet intended to sway the population towards supporting the proposed U.S. Constitution, and so perhaps we should not assume that Hamilton really believed that popular government made a Bill of Rights unnnecessary.
The next paragraph's argument, however, suggests that while the federal government's powers were limited, state government powers were not--unless explicitly reined in by a state constitution's Bill of Rights:But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
Throughout Federalist 84, Hamilton is comparing the proposed U.S. Constitution to the New York State Constitution. It seems that Hamilton was distinguishing the two by the fact that the federal government had only a limited set of powers, and therefore had little need for a Bill of Rights, while a state government's authority includes "the regulation of every species of personal and private concerns." That sounds pretty all encompassing, doesn't it? I would argue that Hamilton would not have made this argument unless it represented at least a widely held view, if not a majority view of the authority of state governments.
Human Rights and The Constitution (Part I)
What Do We Mean By Human Rights?
What are human rights? There are two fundamentally different understandings of "human rights," one of which is a list of obligations owed to an individual, and the other a list of limitations on the authority of the government with respect to the individual. For convenience, I will describe this first notion of rights as "obligation rights" and the second as "natural rights."
Obligation rights include the notion that you have a right to have things provided: a job, shelter, food, medical care. One problem with this notion of rights is that it seems to be ever-expanding. I remember some years ago seeing a Los Angeles City Councilman explain that cable TV "was a basic human right" as part of his justification for some particular cable TV regulatory scheme. Another problem with such a right is that while it is a "right" of the individual receiving food, shelter, medical care, or cheap cable TV, someone has to provide the good or service. Mr. A's right becomes the government's obligation--and soon, Mr. B, Ms. C, and Ms. D are required to fund it. You can argue the merits of obligation rights all you want--but this is not the notion of "rights" that the Framers of the U.S. Constitution had in mind. This idea of obligation rights is largely a nineteenth and twentieth century idea.
The idea of natural rights, on the other hand, is quite old. Mortimer Adler argues that: The idea of a natural right order to which all things, including human beings, should conform is one of the most ancient and universal notions. It is a major principle in the religious and philosophic systems of ancient India and China, as well as in classical Greek philosophy. Plato calls it "justice" and applies it to the human soul and human conduct.
There has long been opposition to the idea of natural rights. Jeremy Bentham, utilitarian philosopher, denied it completely: "The idea of rights is nonsense and the idea of natural rights is nonsense on stilts...." I am not going to bother arguing the point. People that believe that natural rights is "nonsense on stilts" aren't the source of our current problem of Constitutional interpretation. Besides, those who deny the validity of natural rights are welcome to Auschwitz, the Gulag Archipelago, Saddam Hussein's prisons, and the Rwanda genocide. These are the logical consequences of denying that individuals have rights that all are obligated to obey.
How should we understand the U.S. Constitution and human rights? In the Declaration of Independence, Jefferson expressed a consensus view of the time: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed....
Here we have an abstract notion of rights, but not a list of those rights. Even worse, there is a "shorthand" in this definition of rights that we need to understand. Everyone agreed at the time that the states had the authority to execute or imprison people--to take away their "Life" or "Liberty"--not to mention taking away their "Pursuit of Happiness"--as punishment for crimes. The more accurate form of this statement would have been, "certain unalienable Rights (except as punishment for crimes of which the individual has been duly convicted), that among these are Life, Liberty and the pursuit of Happiness."
What does "Liberty" mean? How far does one's liberty extend? Is it unlimited? Again, examination of the laws written and enforced by state governments at the same time gives some idea that "Liberty" did not mean anarchy. There were laws that protected individuals from violence. Thus, murder, robbery, rape, and assault were all criminal matters.
There were laws that protected individuals from economic exploitation. Carrying over a tradition from English law, the states believed that they were free to engage in all sorts of economic regulation in defense of the common good (or at least what legislators pretended was the common good). Many of these laws provided monopolies to favored movers and shakers; others may have been legitimately intended for the public good, but good intentions are not enough.
Throughout the colonial period, Parliament and colonial legislatures passed all sorts of laws that promoted mercantilism. While stumbling through one of many musty volume on New York colony, I was amused to find an example of a lawsuit concerning a shoe sellers guild. One man was making and selling shoes without being part of the guild. The guild took action to stop him. He appealed to the governor. In the course of trial, it came out that the shoe sellers guild was actually making shoes--and the governor reminded them that under English law, they weren't allowed to make shoes in America. They were supposed to tan leather, and then ship it to England. There, it would be made into shoes, and shipped back to America. The inefficiencies associated with mercantilism were just astounding.
States were astonishingly willing to pass laws regulating prices and wages (especially during the Revolution itself). Eric Foner's Tom Paine and Revolutionary Philadelphia shows how Paine became a bit more skeptical of the virtues of unlimited democracy because of how workers used price control laws to unjustly drain the pockets of merchants during the Revolution. Some states after the Revolution, notably Rhode Island, used "legal tender" laws to force merchants to accept worthless Rhode Island currency as payment for all debts--giving merchants wads of paper utterly useless outside the colony.
The idea of laissez-faire economics was fast gaining respectability, especially after Adam Smith's The Wealth of Nations (1776), but even Smith recognized that there were legitimate areas for governmental regulation of the marketplace for the public good. (Compared to the abusive system then in use, however, what he proposed probably seemed like anarchy.)
Many of the colonial and state laws were intended to protect public morality. These included laws against nearly all sexual practices except for intercourse, and even then, only within marriage. These include laws against premarital sex (sometimes punished by requiring immediate marriage), laws against adultery (although some colonies only criminalized sex with a married woman, not sex with a married man), against sodomy (not precisely defined, but certainly including anal sex), and against sex with animals. "Buggery" as an English legal term referred to anal or oral sex, between any two people, regardless of their sex, and sex between a person and an animal. In America, some colonies seem to have used the term to refer just sex with an animal, reserving the term "sodomy" for non-vaginal sexual intercourse. More on these laws here. Of course, because the Lawrence decision struck down state sodomy laws, this this is one of the major struggles going on about constitutional interpretation. (Let me emphasize that I have no enthusiasm for sodomy laws; I do have enthusiasm for honest and accurate Constitutional interpretation, and the Lawrence decision fails on that count.)
Limitations on Governmental Power: For Whose Benefit?
State constitutions during and after the Revolution were often focused on preventing the sort of class distinctions that characterized British law, as well as protecting individuals from abuse by the legal system. See the Massachusetts Constitution of 1780, for example. However, one of the "rights" that it protects, is a statement that the people are sovereign: Art. IV. The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled.
This doesn't mean that individuals are sovereign; it means that the polity may pass what laws it deems appropriate to the public good, subject only to those limitations written into the constitution.
Art. V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them.
There is a curious conflict here: on the one hand, many provisions of the Massachusetts Constitution are clearly intended to protect majority will, and prevent a small cadre of professional politicians from taking control. Later provisions require annual elections of legislators. Opponents of the U.S. Constitution would argue against its two and six year provisions for election with the slogan, "When annual elections end, tyranny begins."
On the other hand, many of the provisions suggest that the drafters realized that there was some risk that even the legislature, representing majority will, might pass laws that denied individual rights--or that officials operating without proper authority, might do so: Art. XVI. The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.
Akil Reed Amar's The Bill of Rights argues that while there were some farseeing sorts who worried about the problem of the majority denying the rights of a minority, such as James Madison, most thinkers of the Revolutionary period were primarily concerned about what Amar calls "self-dealing," where officials use their positions of power for their personal aggrandizement of wealth or power--that majority abuse of minorities wasn't the primary concern. The provisions of the state constitutions in this era seem to indicate an awareness that democracy is not a perfect solution to the problem of individual rights--and that these provisions appear in state constitutions suggests that the awareness wasn't all as limited as Amar seems to think. Certainly, some of the provisions that appear in the U.S. Constitution, such as the ban on states impairing contracts, or making "any Thing but gold and silver Coin a Tender in Payment of Debts" in Art. I, sec. 10, suggest that the Constitutional Convention delegates were well aware of what Rhode Island had done with its legal tender laws, and intended to stop it in the future.
Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.
What Rights Does The U.S. Constitution Protect?
The Constitution, before the ratification of the Bill of Rights, contained a relatively small number of explicit protections of individual rights. Some of these, in Art. I, sec. 10, cl. 1, are explicitly limitations on the authority of the states: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
As should be obvious, the bold parts of this clause protect individuals from state governments run amok.
In Art. I, sec. 9, the Constitution prohibits the Congress from impairing a number of individual rights. Some are exactly the same as the limitations on states: "No Bill of Attainder or ex post facto Law shall be passed" and Congress is also prohibited from granting titles of nobility. Other individual rights are protected against Congress, but not against the states. The writ of habeas corpus is one example. While it may set your teeth on edge, the right to import slaves until 1808, is also an individual right protected against Congressional action, but not state action.
One of the more interesting yet vague guarantees is in Art. IV, sec. 2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
There are several differing theories that have been advanced for this, but the one that the Supreme Court finally stuck to was that citizens of any state must be treated by the law the same as citizens of their own state. The case Paul v. Virginia (1868) involved Virginia discriminating against corporations not incorporated in that state. Of course, the question of what constitutes "Privileges and Immunities" provides an easy way for states to continue to discriminate. California, for example, will not issue concealed handgun licenses to non-residents. Of course, that's not a privilege or immunity. Still, this term "Privileges and Immunities" will pop up again, when Congress drafts the Fourteenth Amendment.
Antifederalists objected very strongly to the Constitution, with a variety of motivations and a variety of arguments. Some objected to it because it took power away from the states, and gave it to a new and much more powerful federal government. I do not intend to get into this argument in detail, but I am prepared to believe that Antifederalist objections included both honest and dishonest statements. At least one of the most powerful arguments that they advanced was that there was no Bill of Rights, as many of the Revolutionary state constitutions had adopted. Their claim was that this new federal government had such enormous powers, that individuals might be badly abused.
Federalist responses were often of the form that the Constitution granted only a very limited set of powers to this new Congress, and these powers were explicit. Therefore, all other power remained with the states--or so the Supreme Court seemed to rule in McCullough v. Maryland (1819): This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.
However, McCullough did acknowledge that, unlike the Articles of Confederation, there was nothing that expressly reserved all other powers to the states. (See Federalist 21 for a discussion of this issue.)
Hamilton, in Federalist 84, argued that a Bill of Rights was necessary to protect against abuses by monarchs, and were unneeded in a representative form of government: It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. ``WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
Hamilton is making the case for why the people should be trusted, and I will confess that I have less trust in the democratic rule than Hamilton purports to have. Admittedly, this was a pamphlet intended to sway the population towards supporting the proposed U.S. Constitution, and so perhaps we should not assume that Hamilton really believed that popular government made a Bill of Rights unnnecessary.
The next paragraph's argument, however, suggests that while the federal government's powers were limited, state government powers were not--unless explicitly reined in by a state constitution's Bill of Rights:But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
Throughout Federalist 84, Hamilton is comparing the proposed U.S. Constitution to the New York State Constitution. It seems that Hamilton was distinguishing the two by the fact that the federal government had only a limited set of powers, and therefore had little need for a Bill of Rights, while a state government's authority includes "the regulation of every species of personal and private concerns." That sounds pretty all encompassing, doesn't it? I would argue that Hamilton would not have made this argument unless it represented at least a widely held view, if not a majority view of the authority of state governments.
Next: The Bill of Rights and Amendment IX.
A Niece Is Graduating From Harvey Mudd College
She sent a graduation announcement that included the statement that she was going to be looking for a work using her Physics degree that didn't involve making bombs. Not to worry; physics jobs in the Islamic States of America will be reserved for those not wearing a burkha.
An Apt Comparison
Condoleeza Rice spoke at Vanderbilt University: NASHVILLE, Tenn. - Condoleezza Rice said Thursday that terrorists today are driven by the same hatred that inspired Klansmen to bomb a church in 1963 in her hometown of Birmingham, Ala.
It is a very fitting comparison. I am afraid that most Americans don't really know what "lynching" involved. Very often, the Klan wasn't content with throwing a rope over a tree and hanging a black man that they suspected had committed a rape. That would have been wrong, but you could understand why short-tempered sorts might be tempted to take the law into their own hands.
President Bush's national security adviser spoke to about 10,000 people — including a small group of protesters — at Vanderbilt University's Senior Class Day.
The bombing at the Sixteenth Street Baptist Church in Birmingham killed four girls, including her friend, 11-year-old Denise McNair, and was meant to instill fear, Rice said.
"Those terrorists failed because of the poverty of their visions — a vision of hate, inequality. ... And they failed because of the courage and sacrifice of all who suffered and struggled for civil rights."
Today, many express doubts about prospects for freedom in the Middle East, much as they once did about Russia, Africa and the American South, Rice said.
She urged students to avoid the mistake of thinking some people do not "share your desire to live freely."
No, lynching was often quite a bit worse. Sometimes the "crime" was nothing more than a black teenager whistling at a white woman. But hanging someone would have been positively humane compared to what lynch mobs often did. It was quite common to castrate the victim before hanging him. Sometimes, victims weren't hung, but burned alive.
Think of Nick Berg--screaming in pain as they cut off his head with a knife. The analogy really does fit quite well.
Of course, there are, in every society, people that take sides in the battle between good and evil: Some Vanderbilt students and faculty had signed a petition to protest Rice's selection for an award. The petition said the award amounted to a university endorsement of Rice's role in the war in Iraq and described her as a "person who repeatedly misrepresented the truth to tragic effect."
Some of the students and faculty would rather be on the side of the monsters.
Constance Gee, a professor and wife of Chancellor Gordon Gee, was among 200 people who signed the petition against Rice receiving the Chancellor's Medal.
Before Rice's speech, about 40 protesters gathered in the drizzle, some holding signs such as "Vandy Does Not Support Liars.
Make no mistake about this. This is not a struggle over money, or oil, or land, or any of a number of relatively minor matters. This is a struggle over whether or not we want to live in a world where Nick Berg's killers continue their operations of death and torture. There are still some pretty serious questions about whether Roosevelt might have done a better job of preparing for Pearl Harbor or not. Some have even suggested that FDR intentionally kept the commanders at Pearl Harbor in the dark. I don't believe that; there were enough mistakes made in getting the message to them that day to explain this as bad luck and incompetence. Make no mistake about it, however, once the war was under way, there was no realistic alternative but the complete destruction of the Axis. It was a system of evil every bit as much as al-Qaeda, Saddam Hussein, and the various terrorist groups of the Middle East, such as Hamas. Unsurprisingly, intellectuals have decided that they can be neutrals--or allies of evil--in the battle against the sort of monsters that fed people into plastic shredders feet first, or take off their head with a knife.
Ooooh! Someone Left The Plantation!
From FoxNews: The nonpartisan Jewish Federation (search) based in Palm Beach County, Fla., has come under fire from Democrats after it agreed to host a speech by Vice President Dick Cheney (search) on Middle East policy.
The left-wing of the Democratic Party (or as some Democrats like to say, "the Democratic wing of the Democratic Party) has spent way too much of the last ten years groveling in front of Yasser Arafat, making equivocating excuses for terrorists, and they expect American Jews to remain monolithically Democratic?
"The Jewish community in its organized fashion should not be engaging with the Bush campaign," said Florida Democratic Rep. Robert Wexler, who called Cheney's upcoming visit a blatant and inappropriate political stunt.
Paul Craig Roberts on Brown
I used to think quite higly of Paul Craig Roberts, some years back. I blogged some months back about his bizarre claims comparing slavery to the tax system in modern America. Roberts has now written a pretty strange piece about why Brown v. Board of Education (1954) was a bad thing.
Now, there are parts of Roberts' new essay that are certainly true--that some prominent black leaders now recognize that the focus on desegregation--rather than quality schools--may have been a mistake. I blogged a few days ago about how not only Thomas Sowell, but also Derrick Bell now have this concern--and that W.E.B. DuBois eventually shared this view in his later years.
Other parts of Roberts' essay, though, just leave me disturbed and perplexed: Brown still matters to the left, Garrow writes, because the power the Court seized in its Brown ruling can be used to mandate homosexual marriage. The Massachusetts court has taken the lead, and on May 17 homosexuals will be able to obtain state marriage licenses. This, Garrow writes, is a fitting tribute to Brown’s constitutional vision on its 50th anniversary.
I strongly disagree. The road to the Goodrich decision doesn't pass through Brown (which was based on a clear question of whether separate schools violated equal protection), but through Griswold v. Connecticut (1965)--a case that, as I have previously pointed out, was based on armwaving, rather than history.
Whether one looks with favor or disfavor on homosexual marriage, Garrow is correct. Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values.
Neither Brown nor Griswold was the beginning of this judicial tyranny, however. You can make as strong of a case that Lochner v. New York (1905) did this as well. It also struck down a state law based on a rather questionable interpretation of the Fourteenth Amendment. At least Brown has the advantage that the Fourteenth Amendment was clearly intended to deal with state laws that discriminated based on race. (I recognize that there is some legitimate reason to believe that Congress did not intend to strike down segregation of public schools.) If Congress intended the Fourteenth Amendment to enshrine laissez-faire into our Constitution, as Lochner seems to think, I haven't seen the evidence for this.
UPDATE: Apparently Roberts has responded to Volokh at some length, of which the most amazing claim is: "As everyone knows, Brown was not a 14th Amendment decision."
What? The decision is right here, and it is very clear: In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, [347 U.S. 483, 488] they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.
Even the headnotes--at the first beginning--are clear on this: Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment - even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp. 486-496.
How Many Science Fiction Stories Of the 1950s Had Mojave Spaceport In Them?
This news story about the first successful powered space launch (yes, it just happened) mentions that Mojave Airport is in the process of transforming itself into Mojave Spaceport: With pilot Mike Melvill at the controls — following release from the White Knight turbojet-powered launch aircraft high above the Mojave, California desert — SpaceShipOne punched through the sky today boosted by a hybrid propellant rocket motor. According to sources who witnessed the flight, SpaceShipOne appears to have reached an altitude of a little over 200,000 feet.
If you have never been to Mojave before--let's just say that it is a good place to try out things that might go boom, or crash.
Scaled Composites of Mojave is the builder of SpaceShipOne, an effort led by aviation innovator, Burt Rutan. The financial backer of the project is Microsoft mogul, Paul Allen.
...
Given all the rocket plane activity at the Mojave Airport, steps have been taken to have the facility certified as a spaceport.
Stuart Witt, General Manager of the Mojave Airport, envisions the site busily handling the horizontal launchings and landings of reusable spacecraft.
Witt said the FAA's Office of Commercial Space Transportation is reviewing an application to license Mojave Airport as an inland spaceport. In fact, the airport is already a natural center for research and development and certification programs, such as the rocket plane work of Scaled Composites and XCOR Aerospace.
Many see Mojave Airport as a magical nexus for safe, smooth coordination of general aviation activity and private aerospace development.
Mojave Airport, also tagged the nation's Civilian Flight Test Center, is situated away from major metropolitan areas, while being located near Edwards and China Lake military test ranges.
"Certainly Mojave is a premier location due to its proximity to the Edwards Air Force Base restricted areas," Burt Rutan told SPACE.com .
Adds Aleta Jackson, an XCOR Aerospace executive: "We look forward to flying our licensed spacecraft from the Mojave Spaceport." The town of Mojave — as well as the County of Kern — plan to help support the spaceport, such as designating land use that is compatible with an active spaceport, she said.
Media Bias--In A Big Way
Instapundit linked to this story, and I suspect that most of my readers probably read Instapundit as well. For those who don't, however, this is a very big story about the level of both bias and political manipulation involved in "news" coverage of Iraq. Read it yourself, and pass it on to your friends--especially your friends who get their knowledge from listening to NPR, watching television news, or reading the New York Times, Los Angeles Times, Mother Jones, Daily Worker, The Nation, or National Enquirer. (They are all at about the same level of trustworthiness--with the National Enquirer perhaps a little less biased by politics.) It's an article by a Toby Harnden, a reporter for the Telegraph, a conservative British newspaper. It appeared in the Spectator (free registration required): But what do the abominations perpetrated at Abu Ghraib really tell us about Iraq and the faltering American-led project to plant the seeds of democracy here? And why are so many people who were against the war, or are incapable of viewing any American action as anything other than evil or stupid, greeting each fresh revelation with an almost indecent glee?
The hatred of Bush is so strong among the media elite that many would rather see the democratic Iraq project fail, rather than Bush get any credit for it.
The other day, while taking a break by the Al-Hamra Hotel pool, fringed with the usual cast of tattooed defence contractors, I was accosted by an American magazine journalist of serious accomplishment and impeccable liberal credentials.
She had been disturbed by my argument that Iraqis were better off than they had been under Saddam and I was now — there was no choice about this — going to have to justify my bizarre and dangerous views. I’ll spare you most of the details because you know the script — no WMD, no ‘imminent threat’ (though the point was to deal with Saddam before such a threat could emerge), a diversion from the hunt for bin Laden, enraging the Arab world. Etcetera.
But then she came to the point. Not only had she ‘known’ the Iraq war would fail but she considered it essential that it did so because this would ensure that the ‘evil’ George W. Bush would no longer be running her country. Her editors back on the East Coast were giggling, she said, over what a disaster Iraq had turned out to be. ‘Lots of us talk about how awful it would be if this worked out.’ Startled by her candour, I asked whether thousands more dead Iraqis would be a good thing.
She nodded and mumbled something about Bush needing to go. By this logic, I ventured, another September 11 on, say, September 11 would be perfect for pushing up John Kerry’s poll numbers. ‘Well, that’s different — that would be Americans,’ she said, haltingly. ‘I guess I’m a bit of an isolationist.’ That’s one way of putting it.
The Left's Continuing Campaign of Falsification
The New York Times is reporting that a series of pictures showing abuse by British troops in Iraq turned out to be fakes--and not even very good ones: On the front page of The Mirror, a photo portrayed a hooded man purported to be an Iraqi prisoner who had been kicked, beaten and urinated on by British soldiers of the Queen's Lancashire Regiment. The authenticity of the image was almost immediately called into question by army officials who pointed out that the soldiers and the Iraqi looked well-scrubbed, their clothes were freshly pressed and the truck that was the scene of the beating appeared in spotless condition. Iraq is notoriously dusty and anyone who has visited there knows the gritty look.
And the response of the Mirror? Apologies?
"The truck in which the photographs were taken was never in Iraq," the armed forces minister, Adam Ingram, told Parliament today. "Those pictures were categorically not taken in Iraq," he added emphatically.In a statement on behalf of The Mirror, Mr. Morgan defended the tabloid newspaper by arguing that because some members of the regiment are under investigation for brutal beatings, including at least one that led to the death of a hotel clerk in Basra, the photos approximated real behavior.
So the pictures could be fakes, but because they convey the real nature of things, this makes it okay?
"There is, of course, a much bigger issue here that we make no apology for highlighting," Mr. Morgan said, "which is that the pictures accurately illustrated the reality about the appalling conduct of some British troops."
If I print out some $100 bills, is that okay because they convey the real nature of things?
The Boston Globe Still Won't Admit It Ran Bogus Pictures
Instapundit has a detailed discussion of how the Boston Globe has apologized for running pictures of GIs raping Iraqi women that were too graphic and "had not been authenticated"--but won't admit that they pictures were pirated from a commercial porn website, and have been known to be fakes for many days.
Kerry One Point Ahead of Bush--in California
I guess that this race isn't as close as everyone assumes. Gore took California by 11 points, and now, in a poll conducted May 4 through May 6, Kerry is only one point ahead. Now, I admit that a lot has changed since the 2000 elections. The Democrats (specifically Gray Davis) screwed up big time. The collapse of the Internet bubble has turned a lot of millionaires into working stiffs again, and a lot of the multimillionaires, I'm told, have been badly injured. A lot of Californians were selling their Ferraris a year or two ago, and there were some real bargains in the used small BMW market. Obviously, as the number of Kerry economic chums drop, so will his potential voters.
Especially interesting is the age breakdown. The only age category that Kerry wins is 18-34 (where he beats Bush 50-36)--and that's a group that has notoriously low voter turnout.
Among people that describe themselves as "certain" voters, it's 46-46. Even among "probable" voters, Kerry's lead isn't that big: 43-39. If it looks like Bush has the election in the bag as the campaign comes to an end, a lot of those "probable" voters won't.
Kerry has a huge lead among black voters: 70-16. I do wonder how much of that lead will evaporate if the Bush campaign decides to push the gay marriage issue. Kerry will have to either stop equivocating, and take a pro-gay marriage stand--and watch a big chunk of black voters sit out the election--or come across like he has on dozens of other issues: a guy that won't take a clear position.
Treasury Bond Prediction Algorithms?
Just so I don't reinvent the wheel, does anyone know of any Treasury bond prediction algorithms that have been developed for figuring where the local top in interest rates is going to be? (I mean, other than the dartboard and oujia board methods.) It seems to me that because of the relationship between short and long-term interest rates, that there might be some patterns in previous high-deficit economic recoveries between federal funds rates, 2 year, 5 year, or 10 year Treasury yields and 30 year Treasury yields.
For example, one of the predictors of a dramatic decline in long-term Treasury yields is something called a Treasury yield curve inversion, where long-term interest rates actually drop below short-term interest rates. I've found historical data over at the Federal Reserve Board website, but it strikes me that someone else may have already done the number crunching.
More Evidence of Bush Foreign Policy Ineffectiveness
From AP:
It is best to be loved--but in international politics, being feared is often almost as effective.
WASHINGTON (AP) - Libya has agreed to halt military trade with North Korea, Syria and Iran.
The move, announced Thursday by Undersecretary of State John R. Bolton, follows a decision by Tripoli to stop its programs to develop weapons of mass destruction. It was hailed as welcome news by Bolton, who said North Korea had provided Libya with its Scud missiles.
A parallel announcement was expected in the Libyan capital, where President Moammar Gadhafi has steered the country toward the good graces of the United States.
...
In an extraordinary move, Gadhafi agreed last December to dismantle Libya's biological, chemical and nuclear weapons programs.
In response, the administration two months ago lifted a ban on use of American passports to travel to Libya.
"Through its actions, Libya has set a standard that we hope other nations will emulate in rejecting weapons of mass destruction and in working constructively with international organizations to halt the proliferation of the world's most dangerous systems," White House press secretary Scott McClellan said.
Barnett's Originalism
Randy Barnett thinks that the Lawrence decision and disapproval of homosexuality is driving opposition to his theory of the Constitution as a libertarian document. There might be someone who thinks this way, but it isn't me. The Lawrence decision is more like the final straw in a long line of usurpations by the judiciary. In Griswold v. Connecticut (1965) (striking down state laws banning contraception, even for a married couple), I agree with the result as public policy: this was an "uncommonly silly law." The Supreme Court's job is not to strike down every law that they think is silly, or icky, or foolish, however. There needs to be some Constitutional basis for it.
In Roe v. Wade (1973), I think that the Court could have constructed a legitimate argument based on the abortion laws of the states in 1868 that would have severely limited state power in the first trimester. (Roe didn't preclude the states from prohibiting elective third trimester abortions, with an exception for the life or health of the mother.)
The difficulty for the Supreme Court is that an originalist understanding of rights--based on what rights were protected in 1791, or 1868, ties their hands. It means the Supreme Court couldn't do what they did in the Lawrence case: decide that they considered Texas's sodomy law "icky" and strike it down because it seemed old-fashioned or dumb.
The Constitution, contrary to Barnett's notion, was not a libertarian document, and state constitutions of the period were even less so. The Constitution provided for a limited set of enumerated powers for the federal government, protected a few individual rights from both federal and state government, but otherwise left state governments free to pass all sorts of laws, good and bad (and they did plenty of both). The assumption was that the voters were smart enough to deal with state government through the drafting of state constitutions, and through the electoral process. This has turned out to be a very poor assumption, but it was the Framers' assumption, because anything else required a form of elitist tyranny that the Framers recognized was hazardous in a different way.
I have asked Barnett several times now, on my blog, and in email, to answer how to deal with a list of laws that prohibit various horrifying situations (at least to me, and 95% of the rest of the country). These are actions that would seem to be constitutionally protected under his libertarian theory of judicial interpretation. His last email seemed to indicate that he wasn't going to respond.
I'm told by a reader who has asked Barnett whether cannibalism laws could survive challenge under Barnett's theory that Barnett responded that cannibalism isn't the same as homosexuality, and expressing incredulity that anyone would ask the question. Very true. But if Barnett's theory is really intended as an all-encompassing theory of Constitutional interpretation--and not just a way to strike down laws that he doesn't like--then he needs to explain why consensual cannibalism laws, laws prohibiting sex with animals in the middle of Main Street, laws against molestation of children, and laws against child pornography are Constitutional, since they do not necessarily involve either physical or economic harm to others. (Yes, you can construct scenarios in each of these cases that do not involve physical harm to other people.)
I'm guessing that Barnett won't answer this question, because he knows full well that his theory leads to results that are extraordinarily repulsive. Indeed, the results are so repulsive that if Barnett's theory were fully implemented by the Supreme Court, it would be the end of our current form of government. Think of the scene in Frankenstein with the mob, torches, and the Supreme Court building in place of the castle!
Simple-Minded Patriotism Page
There's nothing subtle about this multimedia presentation. It doesn't make an intellectual argument at all. It will appeal to the majority of Americans, even stupid ones. I hope you get as much out of it as I did!
That haunting theme music? The Harlem Boys Choir soundtrack for Glory--the best movie about the Civil War that I have ever seen: accurate; thoughtful; realistic; patriotic; and subtle. Also a film that reminds us that in every generation, there have been Americans for whom the words duty, honor, and selflessness lead to glory.
Abortion, Barnett, and Bainbridge
The battle over Randy Barnett's libertarian interpretation of the Constitution is heating up. Professor Bainbridge argues that: Barnett's expansive theory of the 9th amendment is at least as radical as William O. Douglas' theory of penumbras in terms of its ability for judges to invent reasons to strike down laws. Hence, Barnett's theory apparently validates not just Lawrence but also Roe v. Wade. Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil.
That's a strong statement, and Barnett responds: While I do not consider a fetus to be a "person"--either theoretically or historically--Bainbridge does. Yet HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion--which he considers evil and murder--to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.
Barnett just doesn't get it. As much as Bainbridge considers abortion evil, he believes that the states should be left free to pass laws, including laws allowing abortion. Bainbridge is showing a lot more restraint than Barnett gives him credit for.
Now theirs IS a principled position, and the principle is one of fealty to democratic majoritarianism. But it certainly is a theory of the Constitution that protects what Professor Bainbridge thinks is evil, so long as a majority disagrees with him about abortion. This is not hypothetical. At the time of Roe, some states had legalized abortion, a result that HIS theory of the Constitution permits.
...
This dilemma, along with the downward spiral over judicial nominations, is what comes of picking one's constitutional methodology mainly or solely to reach certain results in certain cases.
Back to Barnett's claim: While I do not consider a fetus to be a "person"--either theoretically or historically--Bainbridge does.
There is a bit of a confusion going on here. Of the forty million abortions that Bainbridge is upset about, a fair number are abortions of embryos, not fetuses. Barnett, however, seems to be ignoring the historical evidence about the legal status of a fetus at the time the Constitution was written. Blackstone's Commentaries on the Laws of England is quite clear on this subject: 1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
Based on Blackstone, you could make an argument that came to roughly the same result as Roe v. Wade (1973), and argue that abortion before the quickening was a retained right under the Ninth Amendment--assuming that the Ninth Amendment was recognized as a limitation on not only federal but also state power. (I'm not quite sure how to answer that question yet.)
An infant in ventre fa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.
A few days ago, I came up a list of actions that are currently crimes, but that I do not believe would survive judicial review under Barnett's standard. These are crimes where no one is forced or physically injured, nor economically injured. Yet they are all crimes under our current laws. I will add one more crime to the list: cannibalism, either like the German case a while back (where the victim was a willing partner) or say, eating the dead after traffic accidents. I look forward to Randy Barnett either explaining that these various horribles should not be crimes, or explaining how we can continue to allow majoritarian oppression of the minority without being in conflict with his neat little theory.
Louisiana Gun Owners! Time To Call Your Legislators!
There's a bill before the Louisiana State Senate to recognize concealed carry permits from all other states that recognize Louisiana's permit. The bill is here. Let's take reciprocity nationwide!
So Where Did Al-Qaeda Get The Nerve Gas?
It is very popular to assert that because we didn't find WMDs in Iraq, that they weren't there. So where did al-Qaeda get the chemical weapons that they were planning to use in Jordan? In a series of raids, the Jordanians said, they seized 20 tons of chemicals and numerous explosives. Also seized were three trucks equipped with specially modified plows, apparently designed to crash through security barricades.
Lots of news organizations, in many countries, covered this (although, of course, very lightly in the U.S., where it might spread some suspicion that Iraq did have WMDs before the war).
...
Jordanian authorities said the attack would have mixed a combination of 71 lethal chemicals, which they said has never been done before, including blistering agents to cause third-degree burns, nerve gas and choking agents.
A Jordanian government scientist said the plot had been carefully worked out, with just the right amount of explosives to spread the deadly cloud without diminishing the effects of the chemicals. The blast would not burn up the poisonous chemicals but instead produce a toxic cloud, the scientist said, possibly spreading for a mile, maybe more.
Who Made This Statement?
"This culture is in big trouble. All you see on television are debased images. You saw the Super Bowl. I don't even need to say anything more about it."
Take your guesses. Jerry Falwell? George Bush, Sr.? Nancy Reagan? Nah. Think purple.
Prince. Thanks to Miller's Time for the link.
Rising Interest Rates
The 30 year Treasury bond has busted through 5.5% yield! As of 3:01 PM today, 5.508% yield! I'm glad that just about all my bonds are three years or less! (The longer the maturity of a bond, the more dramatically its value rises or falls inversely with the yield.) The Dow Jones Industrial Average and the S&P 500 both ended the day up.
Pamela Anderson
I used to be ashamed that America could produce such shallow people as Pamela Anderson. But now I see that I was mistaken--she isn't an American (except, I presume, for some products of Dow Corning) at all, but a Canadian, who is now applying for U.S. citizenship.
Fraudulent Reports About Prisoner Abuse
It turns out that there wasn't enough real prisoner abuse in Iraq, so the frauds are now popping up, everywhere. For example, at a press conference in Iraq, organizers exposed one of the frauds: At a press conference by human rights groups in Baghdad on Sunday, numerous former prisoners came forward to tell of abuse including beatings by soldiers and sleep deprivation. The accounts resembled those found by U.S. investigators at the notorious prison.
Tim Blair reports that German television news covered the press conference--including the fraud making his claim--but not the fraud being exposed. No wonder so many Europeans have such a negative view of the U.S.--it helps to be dishonest in the news business, doesn't it?
Fallujah native Abdul-Qader Abdul-Rahman al-Ani, his left elbow wrapped in bandages, his right forearm bound in a cast, recounted how he was beaten by soldiers who picked him up last month. The soldiers tied him and two others arrested with him to a tree and sodomized them one after the other, he told journalists.
"I ask President Bush," he said. "Does he agree with this?"
As Ani, 47, repeated his story, he was interrupted by Jabber al-Okaili, a member of one of the human rights groups that organized the gathering. "He's lying," al-Okaili shouted. "He's a liar!"
Al-Ani was rushed to an office, where al-Okaili and others unwound the bandage on his left arm and found the elbow unscarred and healthy. They cut off half of the cast on his forearm, even as al-Ani insisted, "By God, it's true, everything I say is true."
"All his papers were forged," al-Okaili, of the Free Iraq Institute, said after al-Ani left the building. "Who knows why he did this. Maybe he was paid by former members of Saddam Hussein's regime."
"There are people who try to exploit the situation," said Adel al-Allami, of the Human Rights Organization of Iraq. "We have to be very careful and very precise in our facts. This is a very sensitive issue."
Arab newspapers are publishing photographs of U.S. soldiers raping Iraqi woman--except the pictures came from a commercial porn site, and are clearly identified as fiction. Of course, Arab newspapers getting taken in because of their anti-American sentiment doesn't surprise me. But other newspapers are being taken in as well--like the Boston Globe. I guess that's why the professional journalists look down their noses at the amateurs.
Is Someone Putting LSD in CNN's Water Coolers?
They actually covered a conference about global warming that said this: SYDNEY, Australia (Reuters) -- Australian scientists have found the Earth may be more resilient to global warming than first thought, and they say a warmer world means a wetter planet, encouraging more plants to grow and soak up greenhouse gases.
Now, of course the end of the Reuters report made some appropriate bows to global warming orthodoxy, but what the heck is happening to CNN? They are actually presenting more than one side of a story!
"The global water cycle has changed in response to greenhouse emissions," almost 100 Australian greenhouse scientists said in an annual statement on their research received on Wednesday.
"As the world warms it is, on average, getting wetter," said the scientists, who met recently under the banner of Australia's Cooperative Research Center for Greenhouse Accounting.
A wetter and cloudier world would see more plants and more photosynthesis to counter greenhouse gases and also mean less evaporation as less solar radiation reaches the Earth.
"Contrary to widespread expectations, potential evaporation from the soil and land-based water bodies like lakes is decreasing in most places," the scientists said.
An increase in trees and shrubs in the world's grasslands in recent decades was a major counter to greenhouse gases, they said.
Torture & The Ticking Time Bomb Problem
David Bernstein points to Crooked Timber's raising of the ticking timebomb torture problem: What if the only alternative to millions dead from a nuclear explosion is torture of a terrorist?
As I mentioned a few weeks ago with respect to Dirty Harry, this is a lifeboat scenario, the method by which liberals argue that there is no right or wrong, just what you need to do for the common good. While it is easy to imagine very rare scenarios where the choices are this stark and unpleasant, they are unusual situations. Once you have accepted the principle of doing wrong to do right, it becomes way too easy to extrapolate this to situations that are far less severe.
Some years ago, I read a book about counterinsurgency warfare techniques, written in the early 1960s, as the Vietnam War was just getting under. The author was British, and many of the examples in his book involved British colonies after World War II. An interesting point of relevance to this topic was the author's statement that British law had no provision for a colonial governor to declare martial law in order to justify otherwise illegal measures. The best that a governor could do was take whatever actions he thought were necessary, and then throw himself on the mercy of Parliament, which would examine his actions, and decide whether to pardon him. The author observed that this acted as something of a restraint on colonial officials, because a pardon was uncertain, and an extraordinary crisis might be required to get a later pardon.
I think this is the appropriate way to understand the ticking timebomb torture problem. There are extraordinary circumstances that might justify torture. I think they are very, very rare. A federal law enforcement officer in the "nuke hidden in Manhattan, we have three hours to find it" position would, I hope, realize that whatever actions he took would have to be justified later. Even if you found a jury full of ACLU members who preferred millions dead rather than one terrorist tortured, the judge would have the authority to give a directed verdict of not guilty by reason of necessity, and the President would have the authority to pardon that officer.
Thomas Sowell and Derrick Bell on Brown v. Board of Education (1954)
The Brown decision has become such an icon that to criticize it is completely unimaginable. Thomas Sowell has strong memories of the decision, and strong opinions: As a young government clerk going to a black college at night -- Howard University in Washington -- I first heard of the decision when our professor entered the classroom in an obvious state of agitation and announced that something momentous had happened that day -- and that we would discuss that, instead of the planned lesson.
Sowell goes on to explain that there is a widely held belief--in spite of the clear statistical evidence otherwise--that black poverty was caused by segregation:
As various people around the room expressed themselves, it was clear that we were all in favor of the decision. In fact, many of my classmates seemed to have the most Utopian expectations that this was going to lead to some magic solution to problems of race and poverty. When my turn came, I said:
"It's been more than fifty years since Plessy v. Ferguson -- and we still don't have 'separate but equal.' What makes you think this is going to go any faster?"The anticipated economic benefits, however, lagged far behind. Blacks were already rising out of poverty at a rapid rate that was not accelerated by the civil rights laws and court decisions of the 1950s and 1960s, though of course the progress continued. Yet half a century of political spin has convinced much of the media and the public that black progress began with the civil rights revolution.
I spoke about Brown recently at a federal government agency here in Boise. I explained a little of the history of how Brown came to be decided, the series of decisions that led up to it where "separate but equal" wasn't even close to the actual situation of de jure black schools--and the absurd situation where South Carolina established an entire law school for one black student, and Texas wasn't much better. It appears that economic efficiency and concern for the taxpayers was far less important than keeping white and black students apart in college classes.
It did not. The first two decades after 1940 saw a more rapid rise of blacks out of poverty and into higher paying jobs than the decades following the Civil Rights Act of 1964 or the affirmative action policies that began in the 1970s. ...
The key fallacy underlying the civil rights vision was that all black economic lags were due to racial discrimination. That assumption has survived to this day, in the courts, in the media, in academia, and above all in politics.
No amount of factual evidence can make a dent in that assumption. This means that a now largely futile crusade against discrimination distracts attention from the urgent need to upgrade educational standards and job skills among blacks.
While I don't share Sowell's belief that Brown was wrongly decided, I did express my concern in that talk that the 1960s and 1970s attempts to end de facto segregation may have been a mistake. I don't mean that the desire to integrate the schools was wrong; I think the intentions were good, and could it have been accomplished at almost no cost, it would have been a good thing.
Residential segregation in the United States was partly the result of governmental intervention. The Federal Housing Agency (now gone, I think) used to finance housing developments--and into the 1940s, in many parts of the country, required developers to use racially restrictive deed covenants, as part of the effort to maintain property values. Local governments also played a significant role in some areas in promoting racial segregation, sometimes with ugly and blunt ordinances. (A friend who grew up in the Central Valley of California remembered seeing a sign in the early 1960s at the edge of a town that warned blacks to be gone by sundown.) You can make a case that because zoning laws into the early 1960s were often explicitly for the purpose of "preserving and stabilizing property values" (as the zoning ordinance in Santa Monica, California said), this tended to keep blacks on their side of town. In light of all this, perhaps having the government try to break down some of the pattern of residential segregation made sense as well.
As with most things, the costs involved weren't trivial. Maintaining de jure segregation had required kids to get on school buses that took them past the nearest school, purely because of their race. The attempt to end de facto segregation also required putting kids on school buses that took them past the nearest school, purely because of their race.
All those buses to maintain de jure segregation and to break down de facto segregation of schools wasn't cheap. You wonder what might have happened if the capital cost of the buses, the cost of the fuel, and the cost of the driver salaries, had been instead spent on improving the quality of the predominantly black schools.
There were some other costs as well as from the forced busing efforts. My wife grew up in the San Fernando Valley. Kids living in South Central Los Angeles spent an hour on the road getting to class--which meant getting up an hour earlier to go to school. Do you suppose that might have impaired their performance in school a bit?
Opposition to forced busing was widespread. Some of it was driven by racism, no question. Some of it was driven by the desire of parents to have their kids nearby. One point that I don't think that I ever heard mentioned at the time is that the schools were integrated, but friendships usually weren't. Why not? If you have to get on a bus to head back home 40 miles away at the end of the day, what are the chances that you are going to go over to a classmate's house who lives two blocks from school?
In 1954, as Sowell points out, Brown went over well in most of the United States. There was an increasing willingness to recognize that de jure segregation was wrong and stupid. It was keeping 11% of our population more ignorant than they needed to be. This was bad for blacks, and bad for America, because it meant that tens of thousands of black geniuses were simply not given the educational opportunity that would let them shine. There were millions of black kids who weren't geniuses, but were certainly capable of being highly productive white collar workers similarly held back.
Forced busing took a lot of positive feelings about the Civil Rights Movement, and buried them under resentment and anger. As school districts became more focused on the racial mix of their schools than on the quality of education, "white flight" removed a big part of the tax base for urban school districts--aggravating the existing problem of poor inner city schools.
Brown, as far as I am concerned, was legally the right decision. The end of de jure segregation was a complete win, eliminating the absurdity of maintaining separate school systems for whites and blacks--something that was terribly inefficient from an economic standpoint, along with being unjust. I do worry that the well-intentioned efforts to end de facto segregation that followed Brown may have been an example of governmental overreaching--and made things worse, not better.
UPDATE: To my utter shock, civil rights attorney, liberal, and Professor of Law Derrick Bell argues that blacks might have done better if the "equal" part of "separate but equal" had actually been enforced, instead of de jure segregation struck down by Brown: While honoring the efforts and sacrifices of the people whose struggles culminated in Brown v. Board of Education, the Supreme Court case that ended school segregation in this country, New York University Professor Derrick Bell provocatively suggested last week that generations of black children might have been better off if the case had failed.
You could have knocked me over with a feather.
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"From the standpoint of education, we would have been better served had the court in Brown rejected the petitioners' arguments to overrule Plessy v. Ferguson," Bell said, referring to the 1896 Supreme Court ruling that enforced a "separate but equal" standard for blacks and whites. While acknowledging the deep injustices done to black children in segregated schools, Bell argued the court should have determined to enforce the generally ignored "equal" part of the "separate but equal" doctrine.
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Bell said his argument echoed that made in 1935 by civil rights pioneer W.E.B. Du Bois during a period when the NAACP was trying to end segregation by focusing its litigation efforts on the stark disparities between black and white schools. Du Bois, an NAACP founder who originally had attacked Jim Crow laws and the establishment of black schools, later came to the conclusion that "Negro children needed neither segregated schools nor mixed schools. What they need is education."
In May 1954, as civil rights advocates celebrated the Brown decision, Du Bois, then 86 years old, noted that "no such decision would have been possible without the world pressure of communism," which rendered it "simply impossible for the United States to continue to lead a 'Free World' with race segregation kept legal over a third of its territory." Bell said that Du Bois predicted, accurately as it turned out, that the South would not comply with the decision for many years, "long enough to ruin the education of millions of black and white children."
In 1976, Bell said he came to the same conclusion in an article titled Serving Two Masters, which stated, "Our clients' aims for better schooling for their children no longer meshed with integrationist ideals. Civil rights lawyers were misguided in requiring racial balance of each school's student population as the measure of compliance and the guarantee of effective schooling. In short, while the rhetoric of integration promised much, court orders to ensure that black youngsters received the education they needed to progress would have achieved much more."
News Media Hypocrisy
I pointed out yesterday that releasing the pictures of the prisoner abuse was unnecessary; the story was enough, and those pictures certainly played a major part in the beheading of Nick Berg over the weekend. I see that Jonah Goldberg is making the same point today: Instead, the major news networks tripped over themselves to celebrate their courage for broadcasting the images. The Washington Post received its own set of pictures, including an incendiary photo of an American female soldier parading an Iraqi prisoner on a leash. The Post's only nod to journalistic context was their admission that they weren't sure if the photos were staged or not.
Of course, they won't be consistent. That would inflame American public opinion against al-Qaeda.
What!?
If the Abu Ghraib scandal is the metaphorical — or perhaps literal — rape of the Iraqi people so many claim it to be, why isn't there just a bit more media ethics thumb-sucking over a major American newspaper publishing photos it can't confirm are real?
Obviously, very real abuses occurred at Abu Ghraib, but news operations don't show pictures of rape victims, never mind actual rapes, even when they're sure they're real and the consequences for doing so are comparatively meager.
Peter Preston, the former editor of the Guardian, once told his reporters that there would be no bonuses for producing a scoop that got somebody killed, according to the Newseum's website. "It is not necessarily a question of patriotism, it is a sense of realism that you don't want to put the lives of your fellow countrymen at risk."
Well, CBS' scoop has gotten someone killed and there will be more deaths, on both sides, as a result of this story before it becomes history.
Now we're hearing demands that all of the photos collected by the Pentagon be released immediately. Never mind that if the U.S. government releases pictures of POWs being humiliated we'll be violating the Geneva Convention — again.
More to the point, releasing more photos won't advance the story any better than words would, and new photos would do even more damage than the first batch.
But, as I said, it's time to put up or shut up. If the media wants to advance the Abu Ghraib story rather than wallow in it, its course is clear. It can help Americans "appreciate" the Nick Berg beheading by showing it over and over. I don't know if that would be a good idea, but at least the press would be consistent.
Why did the mainstream news media in the U.S. print those pictures? One explanation is that they were pursuing a sensational story that would get them good ratings. So would showing Nick Berg's beheading--but they aren't going to show that.
The real explanation is that they are so intent on getting rid of George Bush that they are prepared to inflame public opinion in the Arab world against the U.S., endangering the attempt to create a democratic Iraq, and getting civilians like Nick Berg murdered.
"You Don't Need A Gun; The Police Will Protect You"
If you had told me this example of "911 delay" had happened in Los Angeles, I would not have been surprised--the stories I can tell you of my life in that disaster. But look where this happened!SCAPPOOSE, Ore. -- A Scappoose woman called 911 when she thought a man was breaking into her home. But the police didn't come for hours.
Along with being a crime victim, she's a victim of bad timing.
"We heard the noise coming from this area," Sheryl Fitzwilliams said.
The noise was a man trying to break into Fitzwilliams' Scappoose home.
"He was on that windowsill. That was his leverage."
She screamed and he dropped back into the back yard. She made sure her three daughters were safe and then called 911 to explain what happened.
"Man coming in the window. We were screaming," she recalled.
Since the intruder was in the back yard instead of in the home, the 911 dispatcher told the woman that the officers weren't going to able to come out there right away. At the same time, the lone police officer in Scappoose was at the fire department responding to a brawl between 30 people.
Kinky Porn Gets Out Of Hand
I remember a big fuss about twenty years when it was claimed that pornographers were making "snuff" films in South America, in which women were raped and murdered on screen. After much screeching, it turned out that the actress in one of these "snuff" films turned up very much alive--just very impressive special effects. At the time I was horrified that anyone would find this sexually stimulating.
The special effects are even better now, because the actress turned up, very dead: Family and friends of a slain Mississauga porn actress are now hearing the gruesome details of her death as investigators continue to unravel the case.
I just have one question for those who think it is so cool that "anything goes" in "artistic expression": aren't you even a little repelled by the fact that there are people who find this mixture of pain and sex sexually stimulating?
Prosecutors revealed this week that 23-year-old Meadowvale resident Natel King, whose body was found near a ravine just outside Philadelphia, Pa. last month, was likely murdered while shooting a "snuff film."
In such films, actresses are actually killed on-screen.
DNA clues and a note referring to the so-called "snuff" film link photographer Anthony Frederick to the death of King, Montgomery County District Attorney Bruce Castor told a preliminary hearing.
...
Disturbing evidence presented during the hearing included a photo of the slain woman with a red ball in her mouth and a leather strap wrapped around her head. "Oh my God. She didn't deserve this," said one of King's good friends, a Port Credit resident, who only wanted to be identified as Janice.
"Everyone has to go, but a person with so many hopes and aspirations didn't deserve to go like this. All her friends are hoping for justice," she added before breaking down in tears.
King, who performed under the stage name Taylor Sumers, disappeared Feb. 29 while on a photo shoot in the Philadelphia suburb of Conshohocken.
Authorities said she was posing for Frederick in a hard-core bondage shoot that had been arranged over the internet. Nearly a month later, authorities found her naked and slashed body still cloaked in the bondage devices.
Montgomery County District Attorney Bruce Castor, Jr. believes Frederick killed King during a shoot, then dumped her body down an embankment.
Castor also revealed that DNA tests show King's blood was found in the basement of the Conshohocken photography studio Frederick used. Castor was still awaiting final results yesterday from blood samples taken from Frederick's car and other spots in the studio.
Insurgent Attacks on U.S. Forces
I was watching a documentary today on History Channel titled, "Nazi Guerillas." Contrary to what many leftists insisted several months back, there was an active resistance by Nazis after the war ended. The documentary said that forty U.S. soldiers were killed in the U.S. zone in the two years after war, including a series of bombings in Stuttgart in 1946-7.
The documentary points to the strong parallels with Iraq--the efforts to locate and imprison officials of the old party. At one point, 200,000 Germans were locked up while military intelligence made efforts to find out what they knew, and what their involvement was in the crimes of the old government. I'm sure, however, that no U.S. soldiers ever abused their power in dealing with these scum.
Of course, I'm being sarcastic. I've read an account by an American soldier who was present at the liberation of a death camp. He described how, after seeing what this camp had done, he and his fellow soldiers did something a bit worse than sexual humiliation. They lined up the guards, and machine gunned them. No trial. No formalities. Definitely a violation of the Law of Land Warfare.
What amazes me is how many I know that used to be rational about this topic have decided that George Bush is Satan, because he is a Born-Again Christian. (When make a point of mentioning his religious beliefs in the middle of denouncing his policies--well, let's just say it gives the game away.)
What Are The Alternatives?
At this point, we really don't know how much of the prisoner abuse story is just a small number of angry MPs, and how much of it may be military intelligence encouraging inadequately trained MPs to go too far. We do have reason to suspect that in quite a number of places in the Middle East, the CIA relies on their counterparts in friendly Muslim countries to use interrogation techniques that would probably violate CIA standards of behavior.
This bothers me. But I have a question for everyone to ponder: what are the alternatives? We know that al-Qaeda is prepared to kill as many Americans as it can. On 9/11, and in Madrid on March 11, we saw that what restrains al-Qaeda is a lack of capability, not a lack of will. If they had nuclear weapons, they would use them, without hesitation.
What are the alternatives? Quite a number of leftists believe that the United States brought all this on ourselves. While I understand the argument--that U.S. foreign policy often makes enemies--I don't quite buy it. U.S. foreign policy in the Middle East has been considerably more hands-off than in any part of Central America--and yet we don't have Central Americans beheading our citizens, or blowing up our buildings.
The problem of al-Qaeda has a bit more to do with the intersection of a particular strain of Islamic fanaticism and a peculiarly Arab rage at the backwardness of their society--a society that used to be at the leading edge in the sciences, commerce, and civilized behavior. (Any history of the Crusades will show you that when it came to humane treatment of prisoners, Christian Europe had nothing over the Muslims--and often Muslim treatment shamed the Europeans.)
Nearly all of the decline in the relative position of the Arab world has to do first with Ottoman domination, and the rise of Christian (now post-Christian) Europe. European colonization of the Arab world didn't cause its decline; European colonization was the result of the Arab world's decline. If Arabs must blame some colonial power for their sorry state in the twentieth century, they should be blaming the Turks.
Oil wealth probably contributed to the miserable state of the Arabs as well, for the same reason that the gold and silver that the Spanish brought back from the New World damaged the Spanish economy. Why learn to produce anything useful when you have something valuable that you can trade? Spain lagged behind Europe in the nineteenth and twentieth centuries at least partly because, for several centuries, it could buy all sorts of nice things from the rest of Europe--who became quite good at making things, instead.
So for those of you who think that our aggressive policy with respect to the Arab world is the problem, what solution do you propose? To end al-Qaeda terrorism, I see only the following options:
1. Withdraw all support for Israel; exterminate all Jews in the West; and became Islamic nations. Obviously, we aren't going to do that.
2. The Roman solution: invade (or nuke) every Arab country; exterminate the men; enslave the women and children; destroy the culture of the survivors; sow the soil with salt. Obviously, we aren't going to do that.
3. The Islamic solution (the one that they used when they invaded the Eastern Roman Empire): invade every Arab country; give soldiers in battle the option of death or abjuring Islam; provide special legal privileges for non-Muslims, and special tax penalties for Muslims. This is a multi-generation project for which the will just doesn't exist.
4. Infect Iraq with the democracy virus, and hope that it spreads.
5. Engage in a dirty war of taking al-Qaeda prisoners; humiliate and probably torture them (at least by proxy) to give us the information we need to find and kill the rest of their movement.
Personally, I prefer option #4. It is expensive, slow, and sometimes (as with this prisoner abuse situation) morally repulsive. But make no mistake about it: these are the options. Al-Qaeda is involved in a death match with the United States. At the end of this battle, only one will be left standing.
The Story Just Gets Murkier--And There Was No Reason To Leak Those Photos
AP is reporting: BAGHDAD, Iraq - A female Army soldier in the notorious 320th Military Police Battalion meted out "vigilante justice" on Iraqi prisoners she believed had raped former POW Jessica Lynch, according to a letter from her battalion commander obtained by The Associated Press.
Obviously, Phillabaum has a reason to blame the soldiers who did this; the soldiers have an obvious reason to direct blame upward. But Girman's claim is that Phillabaum was incompetent. How would that explain or excuse her actions?
Lt. Col. Jerry L. Phillabaum, the troubled battalion's commander, leveled the allegation in a rebuttal to charges against his leadership of the 320th, some of whose soldiers were charged with abusing prisoners last fall at the Abu Ghraib prison west of Baghdad.
The soldier Phillabaum named, then-Master Sgt. Lisa Girman, 35, called her former commander's description of the incident "completely false" and said Phillabaum was an "incompetent" leader trying to cover up his shortcomings by blaming others.
"It's funny how the leadership continues to point downward," said Girman, a Pennsylvania State Trooper in civilian life. "That night there was no abuse, there was no evidence of abuse."
...
Phillabaum said Girman and three other MPs from the battalion abused the prisoners after transporting them to Camp Bucca in southern Iraq on May 12, 2003.
"When Master Sgt. Lisa Girman returned to Camp Bucca shortly before midnight, she took vigilante justice against EPW (enemy prisoners of war) that she believed had raped Pfc. Jessica Lynch," Phillabaum wrote.
"Four out of the 10 320th MP Battalion soldiers abused some of the EPWs; a clear indication that the abuse was the responsibility of those individuals acting alone and was not condoned by myself or any leader at Camp Bucca."
On Tuesday, Girman said that, at the time of the incident, she did not know who the prisoners were or whether they had any connection with Lynch, a supply clerk who was wounded and captured by Iraqi forces in the opening days of the war and then rescued from an Iraqi hospital in April 2003.
General Taguba, on the other hand, says that there was no evidence he found of complicity in leadership--just incompetence: Maj. Gen. Antonio Taguba on Tuesday told the Senate Armed Services Committee that he did not find any evidence "written or otherwise" that the soldiers involved in the abuse were ordered to soften up prisoners for interrogation.
Now, Tugaba has been ending careers of officers from general rank downward with his investigation. If he really wanted to cover this up good, he would have found the problem was entirely in the lower ranks. Those who want to believe that this is a coverup need to explain why so many high ranking officers are accepting career-ending reprimands. If this abuse represented any sort of official policy, you can be sure that some of these officers would have put the squeeze on their higher-ups.
"We did not find any evidence of a policy or a direct order given to these soldiers to conduct what they did. I believe that they did it on their own volition and I believe that they collaborated with several MI (military intelligence) interrogators at the lower level," Tugaba said.
Sen. Lindsey Graham, R-South Carolina, asked if the acts seen in the pictures were the result of a handful of soldiers "having a good time in a perverted way" or whether they were acting on orders from someone else.
"I would say they were probably influenced by others, but not necessarily directed specifically by others," Taguba said.
Tugaba said the root of the problem was a "failure in leadership ... from the brigade commander on down."
"Lack of discipline, no training whatsoever and no supervision. Supervisory omission was rampant."
Oh yes, I can understand why the lawyers for the defendants might well have wanted this story leaked, in the hopes of protecting their clients. But releasing the photographs--and not just Tugaba's report--has led to this death, as well as taking what was going to be a black eye for the U.S. anyway, and made it vastly worse, by inflaming passions against our nation: BAGHDAD, Iraq (AP) - A video posted Tuesday on an al-Qaida-linked Web site showed the beheading of an American civilian in Iraq in what was said to be revenge for abuse of Iraqi prisoners:
We can thank Mr. Hersh and the New Yorker for this. The legitimate questions about the situation could have been raised without exposing the pictures.
Make Sure You Read This Interview With An Iraqi Doctor
Apparently, Iraqi doctors were required to spend a month at Abu Grahib prison under the old government as part of their training--and this hasn't changed with the Coalition government. This Iraqi blogger has put up an interview with a friend who worked at Abu Grahib for a month recently. The doctor (in bold) explains that he was never allowed in the political prisoner section--but his account claims that what he saw indicated that prisoners were (with one or two exceptions) treated far better than they deserved. Keep in mind that we don't know too much about this Iraqi blogger, or the doctor he interviewed (and we are assuming that the interview really happened). Still: - Hey, slow down! I’ll tell you what I know. First of all, the prisoners are divided into two groups; the ordinary criminals and the political ones. I used to visit the ordinary criminals during every shift, and after that, the guards would bring anyone who has a complaint to me at the prison’s hospital.
UPDATE: Another Iraqi has some comments about the prisoner abuse situation. His English is a little rough, but it gets the point across:
- What about the 'political' ones?
- I’m not allowed to go to their camps, but when one of them feels ill, the guards bring him to me.
- Are the guards all Americans?
- No, the American soldiers with the IP watch over and take care of the ordinary criminals, but no one except the Americans is allowed to get near the political ones
- How are the medical supplies in the prison?
- Not very great, but certainly better from what it was on Saddam’s times. However my work is mainly at night, but in the morning the supplies are usually better.
- How many doctors, beside you, were there?
- There was an American doctor, who’s always their (His name is Eric, a very nice guy, he and I became friends very fast), and other Iraqi doctors with whom I shared the work, and in the morning, there are always some Iraqi senior doctors; surgeons, physicians…etc.
-Why do you say they are very well treated?
- They are fed much better than they get at their homes. I mean they eat the same stuff we eat, and it’s pretty good; eggs, cheese, milk and tea, meat, bread and vegetables, everything! And that happened every day, and a good quality too.
-Are they allowed to smoke? (I asked this because at Saddam’s times, it was a crime to smoke in prison and anyone caught while doing this would be punished severely).
- Yes, but they are given only two cigarettes every day.
- What else? How often are they allowed to take a bath? (This may sound strange to some people, but my friend understood my question. We knew from those who spent sometime in Saddam’s prisons, and survived, that they were allowed to take a shower only once every 2-3 weeks.)
- Anytime they want! There are bathrooms next to each hall.
- Is it the same with the 'political' prisoners?
- I never went there, but I suppose it’s the same because they were always clean when they came to the hospital, and their clothes were always clean too.
...
- Did you witness any aggressiveness from American soldiers?
- Only once. There was a guy who is a troublemaker. He was abnormally aggressive and hated Americans so much. One of those days the soldiers were delivering lunch and he took the soup pot that was still hot and threw it at one of the guards. The guard avoided it and the other guards caught the convict and one of them used an irritant spray that causes sever itching, and then they brought the prisoner to me to treat him.
- So you think that these events are isolated?
-As far as I know and from what I’ve seen, I’m sure that they are isolated.
-But couldn’t it be true that there were abusive actions at those times that the prisoners were afraid to tell you about?
-Are you serious!? These criminals, and I mean both types tell me all about there 'adventures and bravery'. Some of them told me how they killed an American soldier or burned a humvee, and in their circumstances this equals a confession! Do you think they would’ve been abused and remained silent and not tell me at least!? No, I don’t think any of this happened during the time I was there. It seemed that this happened to a very small group of whom I met no one during that month.
- Can you tell me anything about those 'political' prisoners? Are they Islamists, Ba’athists or what?
- Islamists?? I don't care what they call themselves, but they are thugs, they swear all the time, and most of them are addicts or homosexuals or both. Still very few of them looked educated.
- Ah, that makes them close to Ba’athists. Do you think there are innocents among them?
- There could be. Some of them say they are and others boast in front of me, as I said, telling the crimes they committed in details. Of course I’m not naive enough to blindly believe either.Here in Baghdad any one can see that the media is talking about Abo Ghraib more than the Iraqis themselves. Its not Iraqis they are crying on they are using this case against the Americans. Please try to answer these questions:
Is there any prison in the world with out humiliation?
Did any one talk about Iraqi human rights before April 2003?
Did any one ask what those people in Abo Ghraib did to be treated like that?
Can any Arab country open its prisons for any committee?
Would any one dare to criticize prisons system in any other Arab country?
Well……Tank you Arabs, we don’t need your voices now, we know how to solve our problems very well, and it’s being solved. We have our own government and its going to be more legitimate in next July and elected in 2005.
I Have Something Nice To Say About Randy Barnett
I just read his review of Ulviller and Merkel's The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. (You can download his review here.) While Barnett spends a lot of time at the beginning of the review with his examination of different originalism methodologies, the real strength of the review is his examination of how Ulviller and Merkel misread evidence of original intent.
Oh, Really!
Randy Barnett makes the claim: Because the Ninth Amendment seems so clearly to authorize the protection of unenumerated rights, judicial conservatives (not to be confused with all political conservatives) who profess a fealty towards originalism have long sought to dismiss it. But facts, as they say, are stubborn things.
That's an amazing claim. I think a more accurate statement is that judicial conservatives were skeptical of the vast number of items under the inkblot--not that there were unenumerated rights protected by it. Justice Burger's plurality opinion in Richmond Newspapers, Inc. v. Virginia (1980), footnote 15: Madison's comments in Congress also reveal the perceived need for some sort of constitutional "saving clause," which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined. See 1 Annals of Cong. 438-440 (1789). See also, e. g., 2 J. Story, Commentaries on the Constitution of the United States 651 (5th ed. 1891). Madison's efforts, culminating in the Ninth Amendment, served to allay the fears of those who were concerned that expressing certain guarantees could be read as excluding others.
I am becoming increasingly frustrated at Barnett's strawman claims on this subject.
The Story That Won't Go Away: Mohammed Atta & Iraqi Intelligence
Of course, just because a story won't go away doesn't make it correct. Still, it isn't like the crazies just made this one up: the Czech intelligence service still apparently believes this to be true: Important new information has come from Edward Jay Epstein about Mohammed Atta’s contacts with Iraqi intelligence. The Czechs have long maintained that Atta, leader of the 9/11 hijackers in the United States, met with Ahmed al-Ani, an Iraqi intelligence official, posted to the Iraqi embassy in Prague. As Epstein now reports, Czech authorities have discovered that al-Ani’s appointment calendar shows a scheduled meeting on April 8, 2001 with a "Hamburg student."
Now, if this is the case, why does our government still pooh-pooh this claim? There have been disturbing bits of evidence suggesting an Iraqi connection to both the World Trade Center bombing in 1993, and the Oklahoma City Bombing in 1995. (The mysterious John Doe No. 2 that the FBI sought--for a couple of days--as an accomplice to Timothy McVeigh, has been identified by some witnesses as Hussain Hashem Al-Hussaini – a former Iraqi Republican Guardsman. It is possible the FBI has an interest in covering up malfeasance or intentional coverup from 1993 and 1995 related to Iraqi connections to these previous terrorist attacks.
That is exactly what the Czechs had been saying since shortly after 9/11: Atta, a long-time student at Germany’s Hamburg-Harburg Technical University, met with al-Ani on April 8, 2001. Indeed, when Atta earlier applied for a visa to visit the Czech Republic, he identified himself as a “Hamburg student.” The discovery of the notation in al-Ani’s appointment calendar about a meeting with a “Hamburg student” provides critical corroboration of the Czech claim.
Epstein also explains how Atta could have traveled to Prague at that time without the Czechs having a record of such a trip. Spanish intelligence has found evidence that two Algerians provided Atta a false passport.
The Fourteenth Amendment
The liberal approach to divining inkspots has never impressed me, largely because so many of the decisions seem to skip that laborious task of actually looking at historical evidence to support their position. As an example, Rochin v. California (1952) ruled that police officers who pumped a suspect's stomach to get evidence that he had swallowed two morphine capsules, violated the Due Process Clause of the Fourteenth Amendment. The Court admitted These standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 , or are "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325.
I happen to agree that pumping someone's stomach is pretty shocking. You could even make a pretty strong case that this sort of highly intrusive procedure violated the Due Process Clause by examining whether this would have been universally allowed in 1868, when the Fourteenth Amendment was ratified. But why bother to do the research, when you can just say that it "shocks the conscience" and talk about rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental," and "implicit in the concept of ordered liberty."
Where do these phrases come from? Not from the Constitution. Look in Palko, and you tell me where that "implicit in the concept of ordered liberty" comes from, and what, exactly, it means--other than Justice Cardozo's imagination. Look in Snyder v. Massachusetts (1934), and follow it back to its source, Twining v. New Jersey (1908). Twining uses the phrase, but doesn't exactly define it--but then again, Twining is actually denying that the right in question is fundamental, at least in the sense of applying to the states: But it is argued that this privilege is one of the fundamental rights of national citizenship, placed under national protection by the 14th Amendment, and it is specifically argued that the 'privileges and immunities of citizens of the United States,' protected against state action by that Amendment, include those fundamental personal rights which were protected against national action by the first eight Amendments; that this was the intention of the framers of the 14th Amendment, and that this part of it would otherwise have little or no meaning and effect. These arguments are not new to this court and the answer to them is found in its decisions.
You keep pulling on the strings of liberal
Who Do You Trust? Elites or the Masses?
Professor Barnett explains why democracy is a bad thing, when it conflicts with the will of judges: The debate over judicial activism continues with Larry Solum's latest lengthy reply to Stephen Bainbridge, Majoritarianism, Formalism, and the Feasible Choice Set. What I find most interesting about Professor Bainbridge's latest reply to Larry is how candidly he admits his preference for a parliamentary system.
Oh, horror, Professor Bainbridge trusts the majority more than a bunch of unelected judges! Call out the thought police!
. . . I would prefer a parliamentary system in which democratic majorities acting through Congress and the President can trump judicial decisions. As imperfect as the political process is in a world of campaign finance abuses and gerrymandering, legislators are still more accountable than unelected judges.
The question is how far Professor Bainbridge and other judicial conservatives can get towards this goal using the Constitution as currently written, and the answer is: Not far enough to suit them. Those who favor a more democratic majoritarian form of government must advocate ignoring various provisions of the Constitution that stand in the way. This is something properly called judicial activism by the definition I offered earlier.
As much as it seems to bug Barnett, our Constitution already has one of those schemes for the rabble overturning decisions of his precious elite: amending the Constitution. Democratic majorities (actually, supermajorities) act through Congress and the state legislatures to tell judges when they have gotten too big for their britches.
H.L. Mencken once described democracy as "jackals leading jackasses." I think he had it right, but the jackals (politicians) at least have to persuade the jackasses to follow them--and every two, four, or six years, the jackasses have a chance to throw out the jackals. Federal judges don't even bother with that--they just use their superior intellect and power to tell the jackasses what they are allowed to do, and they are there for life. For all that Barnett pretends that his objective is liberty, you only have to look at the results in Romer v. Evans (1996) to see that it isn't liberty that the homosexuals are pursuing, but tyranny. In that case, the Supreme Court ruled that the people of Colorado were not competent to amend their own state constitution.
The amendment would have prohibited the state or local governments from passing sexual orientation anti-discrimination regulations, statutes, and ordinances. These ordinances denied the right of property owners to control their own property, and required them to violate the right of conscience, by ordering them to either rent to homosexuals, or rent to no one at all. There is nothing libertarian about this--and yet this is where "libertarian" ideology takes you.
As Justice Scalia's dissent pointed out: When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins - and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the [ ROMER v. EVANS, ___ U.S. ___ (1996) , 18] applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member-schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. 6-4(b); Executive Committee Regulations of the Association of American Law Schools 6.19, in 1995 Handbook, Association of American Law Schools. This law-school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. 12211(a) (1988 ed., Supp. V).
If the objective were really libertarian--the only laws allowed would be those that punished one person directly injuring another--and the Constitution was amended (as it would have to be) to achieve this, I could be philosophic about it, I suppose.
There wouldn't be any laws against sex in public places, but there also wouldn't be any laws against carrying a gun for self-defense against criminal attack.
There wouldn't be any laws against child pornography, but there wouldn't be any copyright law, either, and a lot of pornography would be much less profitable without copyright.
There wouldn't be any laws against driving drunk (I mean, you haven't really hurt anyone until you have an accident), but then again, there wouldn't be any laws restricting machine gun ownership, either.
There wouldn't be any sodomy laws (not that I am a fan of those, anyway), but there also wouldn't be any law requiring you to hire homosexuals, or rent to them, either.
But let's get real: the sort of "libertarianism" that Barnett is pushing is simply not going to happen. The elites that he appeals to aren't interested in any liberty but that of their pet groups. It will, however, provide them the cover that they need to pursue their carefully picked notion of liberty.
UPDATE: I have generally not regarded libertarian ideas themselves as very dangerous. As long as we live in a republic, even if a large minority became enamored of the most extreme forms of libertarian thought, there would still be a majority that would pull them back from the insane edge. Barnett's argument, however, seems to be that the courts should strike down any criminal law that does not involve direct injury or economic loss, and the majority be damned.
For those of you who think that I am misrepresenting the argument of Barnett and friends: explain to me, if the only valid basis for a law is that someone is injured, either economically or personally, then how will you justify any of the following laws? In every example below, there is no measurable injury, other than the offended public. No violence; no financial loss.
Laws against molesting children. The ACLU has already used this argument in Kansas that a statutory rape law should be struck down in a case involving a 14 year old. What makes it okay for an adult to have sex with a 14 year old, but not with a 12 year old? Or a 10 year old? Or a 5 year old? The current age of consent is arbitrary--purely a decision of the legislature, and one that is as much based on "prejudice" as the sodomy laws. If the only measure of whether a law is constitutional is whether it protects someone from physical harm, how do you justify limiting sexual contact with a child?
Laws against public nudity and sexual activity in public? How will those survive Barnett's theories? No one is injured by either sort of action. These are exactly the same as the colonial public morality laws that libertarians like to ridicule.
Some libertarian law professors have already stated that they don't see any reason to criminalize sex with animals. How about sex with animals in public places?
Animal cruelty laws. Why shouldn't you be able to torture an animal to death in the middle of the sidewalk (assuming that you clean up the blood, eyeballs, and brain matter after you are done)? No human is injured. Assuming that you own the animal, no one is out any money. Right now, animal cruelty laws have a few exemptions for medical research, but they are otherwise laws reflecting Victorian Christian morality about avoiding unnecessary suffering.
Gladiator death matches. I don't mean boxing, where every once in a while, in spite of a bunch of regulatory efforts, someone dies. I mean some promoter decides that he can make a lot of money paying two men (or the second season, two women) a milliion dollars each to fight each other to the death--perhaps with swords, or pikes, or maybe just baseball bats. How long do you think it would take to find two people arrogant enough to be convinced that they can't lose, and it is worth one million dollars to risk getting badly hurt? Everyone involved is a voluntary participant. What's the libertarian objection? How can any law prohibiting this sort of Roman barbarism stand under Barnett's judicial activism?
One of the great hazards of these wonderful ideologies is that the proponents of them are usually so middle class in their morality that they just can't imagine that anyone would actually do these things that right now are illegal. They become so enamored of their elaborate theories that they forget what sort of society they are going to create, when the only standard is physical or economic injury.
If you wonder what makes me think that any of those horribles above is likely: I used to live in the San Francisco Bay Area. The old joke about night court in Los Angeles being the only place where you can see someone charged with human sacrifice...without a permit--isn't far from the morality of a disturbing fraction of that modern Sodom and Gomorrah.
The ICRC Report
The International Committee of the Red Cross report is covered here: A confidential Red Cross report that describes abuses of detained Iraqis by the coalition, has been published in full by The Wall Street Journal today.
The ICRC press relase describing how the report was leaked, and summarizing some of their actions is here.
It describes the routine mistreatment of Iraqi prisoners in coalition custody at Abu Ghraib prison and elsewhere in Iraq between March and November 2003.
The document said that the abuses occurred mainly when certain "high value detainees" were being interrogated by military intelligence.
It describes ICRC delegates witnessing how some detainees were kept "completely naked in totally empty concrete cells and in total darkness" - describing the treatment as a "serious violation" of the Geneva Conventions.
The report said: "Upon witnessing such cases, the ICRC interrupted its visits and requested an explanation from the authorities. The military intelligence officer in charge of the interrogation explained that this practice was 'part of the process'."
I am deeply troubled.
The ICRC report concerns several different categories of mistreatment. One set involves inhumane and degrading practices not in accordance with the Geneva Convention, such as being kept naked in an empty cell. These involved "intelligence assets" (many of whom probably participated in far worse treatment of prisoners when they were in charge of Iraq). While I wouldn't want to be in their shoes, these practices don't quite seem like torture from the description.
On the other hand, there are other forms of mistreatment that do seem to be torture and murder, and impossible for a civilized nation to justify: The report concentrates on only a handful of specific cases of abuse, including an Iraqi hotel receptionist who died after a beating from British troops. Baha Mousa, 28, a married father-of-two, was among nine men seized at a hotel in Basra last September.
These seem to have been pretty common--common enough that it is hard to feel confident that these were just a few out of control soldiers.
"Following their arrest, the nine men were made to kneel, face and hands against the ground, as if in a prayer position," the International Committee of the Red Cross (ICRC) report said.
"The soldiers stamped on the back of the neck of those raising their head."
Soldiers confiscated the men's money before moving them to al-Hakimiya. There they were "beaten severely", the report noted.
Before he died, fellow captives heard Mr Mousa, whose name is blanked out in the document, "screaming and asking for assistance".
The death certificate said he had died of "asphyxia" but the cause was listed as "Unknown", adding: "Refer to the coroner". Witnesses told the Red Cross Mr Mousa had a broken nose, several broken ribs and cuts to the face "consistent with beating".
I would like to think that military intelligence, in its concern for finding weapons caches or WMDs that might be used against Coalition soldiers, got a little carried away. Their rationalization might be, "These guys are monsters anyway, and if we have to break some rules to get information that saves the lives of our soldiers, we'll do it." But Mr. Mousa doesn't fit into this category, at least according to this report. Once you start cutting corners with monsters, it's way too tempting to cut corners with people that are common criminals--or those that you think are common criminals.
A Very Sobering Bumper Sticker...
If you think the Democrats are upset about the very brief, very subtle imagery of 9/11 in Bush's campaign ads, a bunch of these on cars might cause strokes. Click here to see the bumper sticker. (Don't worry, it's work safe.)
Choose Life, Not Disintegration
I'm glad to see someone come to his senses, and decide that it is better to be a living teenager, not a messy stain on a wall: RAMALLAH, West Bank — A Palestinian teenager who decided against blowing himself up in Jerusalem caused panic in a West Bank (search) security office when he went for help, officials said Monday.
I remember reading a book about terorrism, perhaps fifteen years ago, that explained that one of the reasons why the U.S. hadn't suffered much in the way of Middle Eastern terrorism was the length of plane flight required. Terrorists knew that their chances of dying in an attack were very, very high. The more time that elapsed between the start of their trip, and the time they arrived, and the more time that they were removed from their traditional surroundings, the more likely they were to change their mind.
Palestinian security officials said the young man appeared at their Ramallah office late last week and stripped off his jacket — revealing an explosives vest with a detonation switch at his neck.
Fearing they were about to be blown up, five security officers scattered in all directions, shouting at the youth, who looked about 14 but was actually 18 years old. It turned out that the he wanted someone to disarm the explosives.
...
The young man, whose name was not released, told the officers he was recruited by the Islamic Jihad (search) group in Jenin and was supposed to blow himself up in Jerusalem.
On the way, though, he had second thoughts. "I kept thinking of myself, of my family, and to be honest — I don't want to die," one of the officers quoted the man as saying.
I suspect that this is the reason both Clinton and Bush Administrations were primarily concerned about al-Qaeda terror attacks on U.S. interests abroad--not in the U.S. In retrospect, I suspect that they were being a little too confident that the traditional twelve hour model would continue to work.
I'm Sure He'll Fix It Soon...
But quickly, go visit this article on Drudge Report. The article and headline are "Former Czech president says EU politicians out of touch with citizens" but the picture above the headline is Al Franken.
Worshipping Guns?
Professor Volokh mentions how Rabbi Yoffee sees gun control as a religious issue--and therefore appropriate for governmental action: Is the need for sensible gun-control a religious issue? You bet it is.
Professor Volokh is a bit incredulous about this.
The indiscriminate distribution of guns is an offense against God and humanity.
Controlling guns is not only a political matter, it is a solemn religious obligation. Our gun-flooded society has turned weapons into idols, and the worship of idols must be recognized for what it is-blasphemy. And the only appropriate religious response to blasphemy is sustained moral outrage.
I am definitely part of the gun culture. I know people that have guns out of need. I know a fair number of people who enjoy shooting guns. I know people that find them fascinating as pieces of machinery (I'm in that category), and others who find them fascinating as pieces of art. I know people that own guns because they believe that they serve a useful function as a deterrent to both private criminals and governmental criminals (I'm also in the category). I have never met a person who "worshipped" a gun, or treated it as an idol. I don't know anyone for whom a gun has a sexual fetish--even though this is a commonly held belief among gun control advocates, that guns serve some sort of phallic substitute function.
So where does Rabbi Yoffee get this "idol" image of guns? I would suggest that it is rather like the way that the "blood libel" about Jews remained popular for so long in European civilization: Yoffee probably doesn't know anyone who owns a gun. He probably doesn't even know anyone who knows anyone who owns a gun. The more isolated you get from a group, the easier it is to either imagine the worst of members of that group (the negative stereotype of blacks as sex-crazed criminals), or imagine the best of members of that group (all Native Americans are spiritual defenders of Mother Earth). A little contact goes a long ways to correcting these stereotypes.
UPDATE: One reader emailed me to tell me that he has actually met one person, an 18 year old, with a sexual fetish about guns. I guess I'm not completely surprised. That is a difficult age for young men, and energy sometimes get redirected in... curious ways.
Another reader suggested that there is a class of people who seem like they worship guns... the leftists who make action movies in Hollywood, while supporting gun control groups.
Gratified To See Software Engineering Jobs in Abundance
I went to hotjobs.com this morning, and I was astonished to see 163 "software engineer" positions offered in Washington State, and 37 offered in Idaho. The economy is definitely recovering.
The Dangers of Pseudo-Journalism
And this warning comes from John S. Carroll, of the Los Angeles Times, who presumably knows a bit about the subject: The media industry has been infested by the rise of pseudo-journalists who go against journalism's long tradition to serve the public with accurate information, Los Angeles Times Editor John S. Carroll told a packed room in the Gerlinger Lounge on Thursday.
I completely agree with Mr. Carroll on this, having grown up reading the Los Angeles Times. Without question, that was their function, to promote a leftist agenda. Fortunately, I started to read and learn from primary sources, and learned pretty quickly that very little that appears in his rag was accurate.
Carroll delivered the annual Ruhl Lecture, titled "The Wolf in Reporter's Clothing: The Rise of Pseudo-Journalism in America." The lecture was sponsored by the School of Journalism and Communication.
"All over the country there are offices that look like newsrooms and there are people in those offices that look for all the world just like journalists, but they are not practicing journalism," he said. "They regard the audience with a cold cynicism. They are practicing something I call a pseudo-journalism, and they view their audience as something to be manipulated."
In a scathing critique of Fox News and some talk show hosts, such as Bill O'Reilly, Carroll said they were a "different breed of journalists" who misled their audience while claiming to inform them. He said they did not fit into the long legacy of journalists who got their facts right and respected and cared for their audiences.
How could Mr. Carroll's professors have left him so deeply in the dark about this notion of "correlation does not equal causality"? Does Mr. Carroll have any examples of Fox News making either of these claims?
Carroll cited a study released last year that showed Americans had three main
misconceptions about Iraq: That weapons of mass destruction had been found, a connection between al-Qaeda and Iraq had been demonstrated and that the world approved of U.S intervention in Iraq. He said 80 percent of people who primarily got their news from Fox believed at least one of the misconceptions. He said the figure was more than 57 percentage points higher than people who get their news from public news broadcasting.
"How in the world could Fox have left its listeners so deeply in the dark?" Carroll asked.
Guess what? People tend to watch Fox because they are conservatives. Conservatives are inclined to believe that the U.S. does the right thing. They are inclined to believe the worst of our nation's enemies. Blaming Fox News for these misconceptions is rather like assuming that reading the Los Angeles Times makes you into a leftist.
Why Did The Prisoner Abuse Story Come Out When It Did?
Over at Mudville Gazette, there is a detailed (but somewhat hard for me to follow) discussion of Seymour Hersh's New Yorker story that exposed all this. If I am to believe this account, Hersh was alerted to this story by a lawyer working for one of the guards who is now being prosecuted. The clear intent? To redirect blame from the guard to higher-ups. Mudville Gazette also accuses Hersh of lying about what motivated the investigation. I'm not expressing an opinion on this, just letting you know it's worth reading.
Larry Solum Gets Testy
Yesterday I observed that I was prepared to consider Solum's claim about my use of the word "nonsense" to describe Barnett's argument about sodomy being a constitutionally protected right. After reflection, I decided that Barnett's really was nonsense (it made no sense), not simply incorrect. Solum's response, shall we say, has lost some of its scholarly tone, and is now engaged in personal attack. Go read it if you think I exaggerate. (Usually this is a sign that someone has lost the ability to make a rational defense.)
On the substantive issue, however, Solum insists that just because sodomy was universally a felony in 1868, doesn't mean that it wasn't a constitutionally protected right: Cramer’s basic argumentative move is fallacious. He asserts, “The members of Congress who debated the Fourteenth Amendment would not have considered a universal felony to be a right.” But this is quite obviously false. The abolition Congressmen thought that the paradigm case of a right—the right to freedom from slavery and the attendant right to control one’s own movement and to freely contract for one’s labor—had been universally denied legal recognition. Exercising the right of freedom from slavery was a felony both under the laws of the southern states and under federal law prior to the Emancipation Proclamation and the 13th amendment to the Constitution. More generally, whenever a constitutional amendment reverses national law, what was once legally correct becomes, by virtue of the trumping force of the Constitution, legally incorrect. Escaping from slavery, once a felony, becomes a right, because the law has changed.
The Thirteenth Amendment is explicitly about slavery. There is no question as to what the Congress intended to define as a right. By comparison, where is either text or debate that shows that anyone intended or believed that the Fourteenth Amendment would nullify the existing sodomy laws?
Solum's next paragraph doesn't even make sense (and not just because of his leaving out words and using "and" instead of "are"): Cramer’s illustrative example actually undermines his position. Here is the example: “Imagine if someone argued that the right to have sex with children was protected by the Fourteenth Amendment--even though this was a felony in 1868.” Of course, this example actually supports Barnett’s interpretation of the privileges and immunities clause. Children and [sic, should be are] not of the age [sic, missing "of"] reason; they cannot meaningfully consent to sex with an adult. Hence, given Barnett’s interpretation of the privileges and immunities clause, laws [sic that] prohibited sex with children would clearly not infringe on the privileges and immunities of citizens of the United States. By appealing to an example that illustrates the intuitive appeal of Barnett’s theory, Cramer undermines his own position in general. But this move by Cramer does more than that. It also illustrates rather neatly the way in which Barnett’s position (whether right or wrong) is a sensible position.
Huh? Solum seems to have left something out here in the flow of his argument. I think he is arguing that because children aren't legally adults, they have no rights that are being violated by such laws. But that's not who would argue that their rights were being violated. Adults would argue that their right to have sex with willing children is being violated, because pedophiles are being denied equal protection of the laws--after all, adults are allowed to have sex with other adults. Such laws are based on nothing more than simple hatred. The ACLU has already taken the position that laws against sex with children violate the right of children to sexual autonomy (fortunately, the Kansas Supreme Court didn't buy this).
He-Man Meets Pansy
Well, I don't think of it this way, but I'm sure that there are people that would: LIVERPOOL, England (Reuters) - A classically trained British violinist is preparing to battle a world champion arm-wrestler and says regular bouts of the pub sport have sharpened his fiddle-playing.
Liverpool violinist Daniel Axworthy, who took up arm-wrestling last year after beating a doorman in a contest for a bet, expects to face world bantamweight champion Steve Rogers in the 2004 "Arm Wars" contest at the end of May. Axworthy won a bronze medal in the sport in Switzerland last month.
Axworthy, a classical session player and violin teacher, told Reuters arm-wrestling had made pieces easier to play by strengthening his grip on the fingerboard.
More Sad Than Humorous
I suspect senility is why this conman got away with this: BEIJING (Reuters) - A conman took advantage of his resemblance to Sun Yat-sen, father of the revolution that toppled China's last emperor in 1911, to dupe a few patriotic old people out of their money, officials said on Monday.
Wang Jiancheng, 61, posed as Sun despite the fact the former Chinese president and national hero would be more than 130 years old today, according to a statement from the Beijing Chaoyang District government.
As Sun, Wang claimed to have been living abroad "instead of having died in 1925 as the history books state," media said.
Wang and accomplice Chen Meiying, who claimed to be Sun's faithful servant of decades, convinced six men all over 80 to contribute a total of $29,000 to finance a "national investment project," the government said.
Iraqis Speak Out About The Prisoner Abuse
From the Seattle Post-Intelligencer: EVERETT -- The abuse of Iraqi prisoners at the hands of U.S. soldiers draws intense reactions from some who left Iraq to find freedom in Washington state, but prolonged outrage isn't one of them.
While some local Iraqis are bothered by the images, others welcome them.
"It's a terrible thing and it adds more wood to the fire," said Hussein Al-Muhanna, who came to the United States in 1993. "(But) to me, it's not the issue I have to worry about. To me, the main issue is Iraq's future."
Imad al-Turfy, another Everett resident, shows no sympathy for the prisoners, saying their treatment paled when compared with the horrors inflicted under Saddam Hussein's regime.
"They raped our women. They killed our kids. So there's hatred between us, the people here, and the people in Iraq," he said, referring to the Shiite Muslims who emigrated and the Sunni Muslims who ruled Iraq under Saddam.
"Anything coming to them would make me happy."
Al-Muhanna and al-Turfy were among about 20 Iraqi men who met last night to talk politics, discuss their jobs and offer opinions on the latest headlines.
Al-Turfy said he could "tell a million stories" about Saddam's abuses: the people who were blown apart by dynamite or thrown off 20-story buildings, or the family that was buried alive in a car in Baghdad.
"You can't imagine," he said. "They killed us like rats. Like anything cheap."
So to view photos of prisoners in humiliating positions -- one month after seeing another chilling image, the charred and mutilated corpses of Americans hanging from a bridge over the Euphrates River -- was "worth it, because they did the same to us," al-Turfy said, a comment echoed by several other Iraqis.
Mosafer Al-Yaseri, a Lynnwood resident, said that the abuse by some soldiers should not taint the overall efforts of the U.S. Army.
"(The Iraqis) feel soldiers come from good families. Over there, there are 135,000 soldiers. Out of that, 10 people are bad," he said.
What Is Nonsense?
Larry Solum takes me to task for my criticism of Barnett's claims. One of his criticisms, at first glance, made a lot of sense to me. I had argued that: However, insisting that what was a felony in every state when the Fourteenth Amendment was ratified in 1868 should now be understood to be actions protected by the Privileges [or] Immunities clause is nonsense.
Solum's response was: The blogosphere is given to rhetorical exaggeration, and I assume that when Cramer wrote "nonsense," he meant "clearly wrong." Barnett's claim, whatever its merits, is not "nonsensical" in any meaningful sense of the concept of "nonsense." Certainly, we understand what Barnett means, and his claim can be understood in relationship to the historical evidence.
I was going to replace the word "nonsense" with "clearly wrong," but after reading what I wrote, I stand by the word "nonsense." Yes, I understand what Barnett means--and it makes no sense to argue that what was universally felonious in 1868 should be understood as a constitutionally protected right. The members of Congress who debated the Fourteenth Amendment would not have considered a universal felony to be a right. Imagine if someone argued that the right to have sex with children was protected by the Fourteenth Amendment--even though this was a felony in 1868. This is nonsense--a complete reversal of the notion of "right."
In addition, Cramer’s argument that Barnett’s meaning is “exactly opposite to what its authors understood it to mean” is also a rhetorical exaggeration. There is no sense of “exact opposite” in which this claim could be correct. Cramer’s claim, if reconstructed so as to be plausible, would be something like: The original understanding of the P or I Clause was such that it was not perceived as relevant to Sodomy laws. Therefore, it is unlikely that any interpretation of the P or I Clause that would invalidate such laws is correct. Barnett’s claim is inconsistent with this argument (or even more accurately, in tension with it), but not its “exact opposite.”
What Solum does not seem to have grasped is my point that something that was felonious in 1868 could not qualify as a right to the legislators who passed the Fourteenth Amendment in Congress, or ratified it in the state legislatures. A felony is exactly opposite a right. Is there anything more clear than this?
There is a legitimate argument about whether actions that were not criminal, or not universally criminal, in 1868, should be considered reserved rights. Many states had regulatory measures to deal with alcohol in 1868; some did not. You might want to argue that producing alcohol for sale was a "right" in 1868. The evidence based on the state of state laws would be ambiguous, depending on the standard of proof required. But the only way for a universal felony in 1868 to become a right today involves standing the 1868 notion of right on its head.
The question of whether equal protection of the laws should be used to strike down homosexual-only sodomy laws is a different question, one that I will address in a more comprehensive manner today or tomorrow. Unfortunately, responding to Barnett's claims is necessarily a reactive process, and does not produce as clear a statement as this deserves.
It's Nice To Know We Have Shiite Friends in Iraq
Very encouraging wire service story about the struggle against al-Sadr in Iraq: NAJAF, Iraq - Armed with a 9 mm handgun and grit, Haidar is trying to do what the American military camped nearby hasn't done: Drive the gunmen of Shiite Muslim cleric Muqtada al-Sadr from this holy city.
For some odd reason, I haven't seen much coverage of this on the national news. I wonder why?
Since mid-April, Haidar and scores of other young men from Najaf have gathered nightly in the city's sprawling cemetery to attack members of al-Sadr's Mahdi Army militia. Only a few gunmen are targeted each time to prevent big firefights that might injure civilians, said Haidar, who spoke with Knight Ridder on the condition that his last name not be used.
"If we capture them and they swear on the holy Quran they will leave Najaf and never come back, we let them go," the 20-year-old furniture maker said. "If they resist, they are killed."
As of Friday, the group claimed to have killed more than a half-dozen Mahdi gunmen and chased off at least 20.
This is the first homebred movement against al-Sadr, and it illustrates the animosity toward the radical cleric within Iraq's Shiite community, which makes up the majority of Iraq's population. The Shiites were oppressed under Saddam Hussein's rule, and the United States has looked to them for support in its efforts to transform Iraq.
Many Shiites in Najaf say only a small number of Iraqi Shiites support al-Sadr. But the grand ayatollahs who guide the Shiites are withholding support from Haidar and his band of vigilantes, fearing a civil war among their followers.
U.S. authorities have expressed hope that the Shiite community would take care of al-Sadr and have failed to condemn the vigilante attacks, leaving the impression that they endorse them. U.S. forces have sought to arrest the young cleric and disband the Mahdi Army, but they don't want to risk a public backlash that would follow a military incursion into Najaf.
Najaf businessmen, some of whom Haidar and others say are financing the resistance movement, say there's no choice but to fight back. Al-Sadr "is just a child and he's running everything," complained one shop owner, Mohammed Hassan, 45, who sells women's sundries in the main bazaar. "We haven't been able to get our goods from Baghdad since his men took over our city. They stop the trucks at checkpoints and steal everything."
...
Yet the young men have a major tactical advantage over Mahdi members, many of whom are from nearby Kufa, Baghdad or southern towns. Thul Fiqar fighters are hometown boys who know every inch of Najaf, including the hundreds of pathways in the cemetery, which is the largest Muslim burial ground in the world. This cemetery is where they've concentrated their attacks against al-Sadr's gunmen, who go there at night to monitor American troop movements in the distance.
"We don't use mobile phones or two-way radios," Haidar said. During the day, "we blend with the crowd and pass on what we learn about Mahdi to other Thul Fiqar, whom we identify by exchanging passwords."
The immediate impact is negligible, Haidar admitted. Mahdi Army numbers in and around Najaf are estimated in the thousands, compared with the 250 claimed by the Thul Fiqar. Their quest also comes at a high price. Four members of the new group have been killed in firefights with Mahdi, said Hashim, 27, a Thul Fiqar leader who refused to give his last name.
But the counter-militia believes al-Sadr's group will crumble if it's attacked from within by Iraqis while the Mahdi is fighting the Americans, camped outside of town.
"The Americans made us happy when they got rid of Saddam Hussein," Haidar said. "We're happy to return the favor by getting rid of the Mahdi Army."
Does This Constitute Obscenity?
I know that in some circles, obscenity seems to be limited to only the most outrageous, most extreme, most repulsive materials, those that are utterly without redeeming social value (say, George Bush speeches), while everything of a sexual nature is so difficult to judge that we must regard it all as legitimate. Let me give a couple of email examples for the libertarian extremists to justify as Constitutionally protected free speech. I've removed the worst of these, but what I am reproducing below is enough to give you a feel for what the ACLU (and, I think, most law professors) believe must be protected or we will soon be censoring everything.
The first is an email another blogger received: Good day Sir or Madam!
At this point, the email became far, far more unpleasant and far more explicit. Far more so that what I am willing to quote.
Tons of explicit violence, hundreds of pics containing shocking scenes, hours of female torturing and sorrow, forum where you can share you story and opinions with other members. Maybe you have experienced yourself, what it feels like to be raped. Don't be shy, come on in-share your sorrow with everybody.
Daily violators from around the globe mail us their pics. The most cruel and keen ever seen adventures of theirs. Humbled and tortured victims, satisfied male fiends. Pain, horror, agony is read in these poor women's eyes. They beg for mercy during hours of the most blustering video,
The second is an email that I received a few hours ago. The weird spellings are the ways that the pornospammers try to get around various email filters: Looks like you've come to a real Z00 here! Yeap! We have goats, we have horses, sheep, snakes, even dogs!
And then it becomes extremely explicit.
e have lots of @n1m@ls here and we also have lots of g1r|s who just love to have some s. e -x with these creatures? How do they do it?
So, here's the challenge for all you law professors who believe that the society would be damaged by prosecuting such materials under the existing obscenity statutes: please explain why. Slippery slope is a legitimate argument; explain why there is no legitimate bright line dividing such materials from constitutionally protected speech.
