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12/30/2004 It only counts if it comes from the government In an execrable editorial, the New York Timesagrees with the U.N.: We're "stingy." Ostensibly because it took President Bush till yesterday to "rouse himself from vacation" and phone his sympathy to leaders of the affected nations, and that the government's initial aid package would be "less than half of what Republicans plan to spend on the Bush inaugural festivities."
Perhaps the President was spending his time trying to access the Catholic Relief Services website which saw so much traffic earlier this week it crashed. Or maybe he was compulsively hitting refresh on the Amazon.com website to see the amount collected for the Red Cross approach, as of this morning, $4 million.
Ginny at Chicago Boyz makes a point that's worth remembering, too: Relief from this horrible disaster is likely to be quicker and more complete because of American agriculture advances and techniques, American pharmaceuticals, and, naturally, the choices made by free Americans, Australians, Japanese and the like to give on their own.
I wrote a check yesterday for 1.6 percent of my net monthly income for disaster relief. (In a month that featured three kids with birthdays and Christmas.) Did the NYT editorial writer? Did the New York Times? Or wouldn't that count?
Is the government (which gets paid by whom?) "stingy" anyway? President Bush noted yesterday: "In the year 2004, our government provided $2.4 billion in food and cash and humanitarian relief.... That's 40 percent of all the relief aid given in the world last year."
The Bush Administration, via the Millenium Challenge Corporation and the support it has rendered the Global Fund, has undertaken the most meaningful steps ever to link aid to good governance in recipient nations. And, as discussed at length here at Red State, the President has ensured that our country is without question the single most active anti-AIDS entity in existence. In the world. Ever. Oh, and then there are the two tyrannies we toppled, plus the broader plan to bring democracy and liberalism as best we can to an entire region. Which you might not count as "aid" if you're on the embittered left, but surely does if you're a beneficiary.
The plain fact of the matter is that from the return of the Boxer Indemnity to the Marshall Plan to today, the United States is a profoundly generous nation to the world, and the Bush Administration has only increased its historic generosity.
Yep. But so what? Free, well-off people -- which America has made many people, not by a longshot all Americans -- choose to give in times of dire need. It's an irrefutable fact (keep hitting refresh) that doesn't depend on whether the President is on vacation, the U.N. needs regime change, or the New York Times has its head up its rear end.
12/29/2004 Supreme Court office pools SCOTUS junkies: There's a delightful new paper culled from the private papers of Henry Blackmun showing a Supreme Court office pool on the 1992 Presidential election. (Ms. Justice O'Connor won handily.) (Link courtesy SCOTUSblog).
We learn several critically important things from this paper. One, rumors that the Chief Justice really digs office pools and stuff are probably true. Two, Ms. Justice O'Connor buttresses her reputation as the most politically savvy of the bunch. Three, Clarence Thomas shouldn't bet on stuff. (If you read the four-page paper and become enraged when it says "clearly, bets made by a justice who relies on Rush Limbaugh for his news are less accurate than those cast by a more typical justice," please do read the whole thing, in the spirit in which it was obviously written, and if you miss that, make sure to read footnote 5.)
Beneath what is obviously a lighthearted (and delightful, to Court watchers) analysis, the paper raises some important points. Should Justices gamble? The paper suggests Mr. Justice Scalia, whom it calls, quite incorrectly, a "strict constructionist," might have avoided participating because of a D.C. law prohibiting gambling on "contests"; whether the election fell under that law is ambiguous, and who would be the ultimate arbiter of what it meant? Yegg-zactly!
Should Justices gamble on the outcome of Presidential elections? The paper quips, "if the Court were ever called on to pass judgment in a case that could decide a presidential election -- a remote, science-fiction scenario, of course -- justices who had their money and their pride riding on the outcome might be swayed." I'm quite sure that particularly in a contest where money is won on a particular state, so that at most $6 was at stake in the outcome of Florida, none of the Justices were swayed by their potential winnings to rule the way they did in Bush v. Gore.
Baseball executives play fantasy baseball, we know. Red Sox outfielder Dwight Evans played, and once traded himself for pitching. As the paper mentions, governors bet on Super Bowls and World Series all the time.
Tim Blair notes a correction to what Reuters and the Sydney Morning Herald had reported by the French Foreign Ministry: France has pledged 15 million Euros in aid; the $177,000 figure was, according to Tim's sources, a misreading of who was pledging the money, i.e. "counties" or "departments," not the French government. A Blair reader writes to explain:
100,000 Euros is what cities and departements (somewhat comparable to US counties) in France are quoted as giving in the above links. Dijon for example is giving 150,000 Euros.
France is giving 15 million Euros, Germany 20 million Euros.
As with the US, these are sums given for immediate disaster relief. More is to be expected later.
Is Instapundit getting credit? Glenn Reynolds' link to Amazon.com's tsunami relief donation page includes his affiliate link. Hopefully, Amazon isn't giving him a percentage. I doubt it, but... when I build affiliate links, such as for what I'm "Currently Reading" and "Currently Spinning" on my home page, I have to log in to "Affiliate Central" and build the links. Whereas if you go to the Amazon.com home page, you see a big graphic with a red cross with the link to donate, which I used "Copy Shortcut" from IE to plug into the post below. Why go through the trouble?
Prof. Reynolds?
UPDATE: Prof. Reynolds is indeed not getting credit for donations made through his site, and his affiliate link is plugged in automatically, and there's nothing untoward going on. He's probably helped Amazon raise more money than, um, France has given, so I apologize if I insinuated that something squirrelly was going on where it wasn't.
Now to figure out how to get my affiliate tag in things more easily...
Tsunami relief The Amazon.com effort to raise money for relief is truly impressive. I chose to send my $50 to Catholic Relief Services, which you might consider, too, unless you get jazzed about compusively hitting refresh after your Amazon.com donation and seeing the total grow literally by the second past $1 million.
I would be remiss if I didn't note Tim Blair's calculation, double-checked, even, that France has sent $177,000, while "domestic criticism of [President] Bush continue[s] to rise," for some reason I'm sure is really good, according to some assholes with nothing better to do than bitch. (Pardon my $177,000.)
More on military "foreign aid" Instapundit cites this piece that says that "the Everett [Wash.]-based aircraft carrier USS Abraham Lincoln is headed to the Indian Ocean to help with tsunami relief efforts." And this that says:
More than 5,000 military personnel of the Navy's Expeditionary Strike Group 5 will skip their New Year's holiday on Guam to fulfill a humanitarian mission in Sri Lanka.
The USS Bonhomme Richard docked in Apra Harbor yesterday for what was originally planned to be a five-day stay, but was called to bring relief aid to the inhabitants of Sri Lanka who were devastated by a tsunami this past weekend.
I'm so atwitter I'm not going to write a letter to the editor.
12/28/2004 Scientific proof of the non-existence of God Hugh Hewitt (objecting to crafting news coverage "to put proponents of intelligent design into a box marked 'snake-handling yahoos,' and to elevate their opponents to the position of rational science enthusiasts"), Rand Simberg (tut-tutting that "creationists attempting to get their views into science class, whether explicitly as the 6000-year-old solution or dressed up as science, as in ID, is a failure of their own personal faith in their own beliefs") and, of course, the ubiquitous Glenn Reynolds (commenting that Intelligent Design theory is "um, highly unpersuasive") have brought ID to the fore of the blogosphere again. Steven Jay Gould, who is on Matt Rushmore, as you can see so from my home page, would be the first to tell you (if he were still with us) that Darwinian evolution tells us nothing, not one thing, about how life got here in the first place. Among other places I recall his saying so in an essay tragically misreading a Scalia dissent.
The problem here is not "making ID defenders out to be gap-toothed sibling-marrying Bible thumpers" (Simberg), it's far older than that. It's the centuries-old promise that Darwinian evolution provides conclusive scientific proof that God does not exist. It does no such thing, but sometimes it seems like only Gould and I know that. Evolution has become dogma while, say, hardly anyone gets jazzed about quantum physics, because millions of people are delighted to believe evolution disproves the existence of God.
(Over?)reacting to that, some of the faithful have lobbied to have the Biblical story of creation or, now, Intelligent Design taught in school alongside evolution. First off, evolution is so complicated a theory that it shouldn't be taught at the high school level to begin with (but is, partly because of educators' glee that it disproves God's existence). But the Intelligent Design debate -- and I'm in the thick of it, in Ohio with one kid in middle school and two in elementary school -- is a sad byproduct of the zealousness of people who don't understand what evolution is to have it drilled into young people's heads early on because to them, it represents the triumph of science over religion. It would represent that if it postulated where life came from to begin with (I'd settle for a good explanation for the Cambrian Explosion), but it doesn't.
12/27/2004 More on military "foreign aid" Via Tim Blair we read that the U.S. is sending $15 million immediately to Asian countries impacted by the December 26 tsunamis, and "the U.S. Navy said it sent three P-3 surveillance aircraft from Kadena air base on the Japanese island of Okinawa to Utaphao, Thailand, to conduct survey operations, including a possible role in search-and-rescue efforts."
Secretary Powell also stressed that the U.S. would be committed to long-term rebuilding beyond this "initial infusion" of aid.
I wonder what Tom Friedman makes of all this? Actually, I really don't care. At least not enough to write a letter to the editor.
Bills update With the Ravens and Jags having lost -- but not the Broncos -- the Bills need to beat a likely undermanned Steelers squad at home -- Pittsburgh has wrapped up home field throughout the playoffs, win or lose -- and have either the Broncos (home vs. Indianapolis) or Jets (at St. Louis) lose.
A Broncos loss would leave them 9-7 to the Bills' 10-6 in that scenario. A three-way tie at 10-6 with the Bills, Broncos and Jets would eliminate the Jets based on its 7-4 record against common opponents with the Bills (8-3), the third tiebreaker.
We (Junior, Muffin and I) will be watching from a sports bar near my parents' place in Cape Coral, Fla. We leave New Years' Eve and return the next Wednesday.
Fisking Friedman Powerline savages Tom Friedman's "Sunday News Quiz" column about how the U.S. is becoming a great big military industrial complex to the detriment of the poor and the children and whatever. It's made its rounds on the blogosphere, but Powerline today posted an e-mail it received from Anne Malone in Kailua, Hawaii:
I laughed out loud at Tom Friedman's complaints about the size of the defense budget and wanting us to give more foreign aid. He must not be aware that our military often provides foreign aid -- right out of that huge defense budget! Example: My husband (a LCDR in the Navy) was just called in to work this afternoon because of the earthquake and tsunamis. Hell be working on determining needs and providing ships, planes, etc. We'll send help, just like we do whenever there is a hurricane, typhoon, etc. This comes out of the defense budget.
It seems all Mr. Friedman wants to see is big numbers on budget items that he likes. It'd sure be nice if he knew what he was talking about, though.
I hadn't read the Friedman piece -- according to Daniel Okrent, there's nothing wrong with it anyway! -- but indeed, the idea that "defense spending" does not include a substantial amount of "foreign aid" is as asinine and unsophisticated as you can get.
To be fair to Friedman, here is his piece, which I've read now, and it's more about "a messed-up set of priorities" -- by which he means, substiantially, national defense versus education (aside: Raise your hand if you think the federal government ought to be more concerned with national defense than education? Thanks) -- than about "foreign aid." But it does include these consecutive observations, meant to appear contradictory:
6. The report this month that the Bush administration has reduced America's contribution to global food aid programs intended to help the world's hungry feed themselves. (The Bush team said the cut was necessary to keep our deficit under control!) 7. The report that U.S. military spending this year is running at about $450 billion.
Among Powerline's point-by-point debunkings, that of #6 is both the least sophisticated and the hardest to really argue with: "This refers to the U.N.'s Millenium Project. In light of what we now know about the U.N. under Kofi Annan's leadership, is it unreasonable to question whether lavishly funding the U.N.'s programs is the best way to spend our taxpayers' money?"
Anyway, the point that "U.S. military spending" does indeed include substantial amounts of "aid," both foreign and domestic, is obvious enough that maybe that's why people aren't writing letters anymore, Mr. Okrent.
12/24/2004 Letterman in Iraq for Christmas "Anyone here from out of town?"
Letterman, along with his musical director Paul Shaffer and stage manager Biff Henderson, brought the popular late night television show to the Marines, sailors and soldiers currently stationed at Camp Taqaddum, Iraq, Dec. 24, 2004. They were followed with a performance from "Off the Wall," a southern California band, which added to the holiday festivities.
"How about a nice hand for Jay Leno, ladies and gentlemen," joked Letterman as he started his show.
Sgt. Jeana V. Warren, a supply clerk with 1st Force Service Support Group, kicked off the show by formally introducing Letterman to the crowd.
The crowd roared and hands flew in the air when he asked for a volunteer to help deliver his opening monologue.
"Isn't that how you got here?" Letterman asked.
"'Paul and I were in Afghanistan three years ago, and last year we were in Baghdad. We wouldn't want it any other way,' said Letterman. 'We're sorry we keep having to come back. If you ever come to New York City, come see us and we'll treat you like big shots.'"
The Chris Isaak Christmas special on PBS got two thumbs up from the Barr household, and he introduced his fine original song Washington Square by saying that it was penned for people waiting for loved ones in the military to come home from overseas.
I'm writing a letter to say I still care And I wish you were here it's Christmas And it's way past the late mass I'm saying a prayer I can picture you here last Christmas
I know you're so far from home But you know that you're never alone I know you're so far away Till you're home safe again I'll just pray
Oh, it's Christmas again But it won't be without you Oh, it's Christmas again I'm so lonely without you
I'm turning my collar to the cold and the wind Till you're home safe again And it's Christmas We're saving your present, it's under the tree When you're with me, you'll see It's Christmas
I know you're so far away But you know that I still feel the same I know you're so far from home But no matter how far, you're never alone
Oh, it's Christmas again But it won't be without you Oh, it's Christmas again I'm so lonely without you I'm so lonely without you I'm so lonely without you
Finally, a story of loyalty from an ICU in Iraq on Christmas Eve.
Then remarkably, the young soldier, who had just lost his left hand and right eye from an explosion, came to the defense of the Secretary of Defense, stating "Mr. Rumsfeld, I want you to know, that you are doing a fantastic job. I know that you are taking a lot of heat for the problems with getting armor for vehicles. I want you to know that things are vastly improved. Our vehicles are great, and I have never searched through junk piles for scrap metal."
At this point, Rumsfeld looked choked up, and I had a lump in my throat and and watery eyes. It was moving. What makes a man who has been so close to death, and maimed for life, come to the defense of the Army's highest ranking official? Loyalty, I dare say. Did Rob think Mr. Rumsfeld was having a self-esteem problem? In his greatest hour of need, his thoughts went to the emotional needs of another. I found it quite amazing, and moving.
John Hart Ely This blog was in existence prior to November, 2004, but I let it lapse before getting jazzed by the election to start writing again (other than for a living). I thought my previous stuff was all gone, but I found my post upon the death of John Hart Ely from October 2003 in a Yahoo! cache:
I had the fortune -- literally, since my last name starts with B -- to take Constitutional Law from Professor Ely when he visited my law school in 1992.
His 1980 book Democracy and Distrust is hailed in his New York Times obituary as "the most important work of constitutional scholarship in the two generations from the time it was published to now." It establishes (with roots in a footnote to a 1938 Supreme Court opinion) the argument that our Constitution is meant to balance, equally, two things: the power of majority rule and distrust of what majorities will do to perpetuate themselves once in power.
To Ely, the Constitution was meant as a procedural document only, meant to protect access to the democratic process, where undesirable laws, if passed, could be repealed (and, of course and more often, desirable ones passed and enforced) -- the role of constitutional jurisprudence was to be "participation-oriented, representation-reinforcing."
"The approach to constitutional adjudication recommended here is akin to what might be called an `antitrust' as opposed to a `regulatory' orientation," he wrote in the book (quoted by the Times). "Rather than dictate the substantive result, it intervenes only when the `market,' in our case the political market, is systematically malfunctioning."
This is a compelling argument, better made by Ely, whose book I seem to have lent away years ago, and I'm sure I don't know to whom, so I ordered a new one today. With the exception of the Third (a pet peeve of the time!), each Amendment in the Bill of Rights can be read as meaning to ensure that majorities cannot perpetuate themselves by artificial means: criminalizing dissent, cutting off access to Congress or the courts, inventing charges on which to ransack a political opponent's house, jail him till after election day, deny him a public trial etc.
He strongly favored the privileges and immunities and equal protection clauses as a means to ensure that (political!) minorities were not trod upon. I bet he would have regarded homosexual sodomy laws as violative of equal protection, so long as all sodomy was not outlawed. But this "substantive due process" nonsense he thought was a backdoor way to get to what should have been gotten to by the equal protection and especially privileges and immunities clauses, the latter having been rendered effectively inoperative by the Supreme Court about five minutes after the ratification of the Fourteenth Amendment. There is no such thing as "substantive process," he said; quite correctly, if English is your first language.
It is in "penumbras of the Fourth Amendment" via the concept of "substantive due process" forbidding legislation abridging "fundamental liberty interests," of course, that the Court discovered a Constitutional right to abortion. From the Times obit:
[Professor Ely wrote] a caustic critique of the reasoning in Roe v. Wade, the 1973 decision finding a right to abortion in the Constitution. Earl Warren [for whom Ely clerked] was no longer chief justice by then, but the Roe decision was rooted in a 1965 decision of the court.
"What is frightening about Roe is that this super-protected right," Professor Ely wrote in the Yale Law Journal in 1973, "is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure."
Professor Ely had said he supported the availability of abortion as a matter of policy. But he wrote that the Roe decision was untenable as a matter of intellectually honest jurisprudence.
"It is not constitutional law," he said of the decision, "and gives almost no sense of an obligation to try to be."
His plain-spoken clarity in person and in his book were a tremendous influence on me, and the law, too -- according to the Times, Democracy and Distrust [which, this is me in December, 2004 again, I did receive and happily re-read] is "by a considerable margin" the book on the law most cited by other legal scholars since 1978. And Ely himself was the legal scholar cited more than anyone since 1956 but Richard Posner, Ronald Dworkin and Oliver Wendell Holmes.
More steroids (?) In a fine piece in the Washington Times (link via Hit & Run), Patrick Hruby makes several very important (and currently blasphemous) points.
"Testing doesn't work":
"If you have an IQ above room temperature, you shouldn't be very confident in the ability of drug testing to catch anybody," said Dr. Charles Yesalis, a Penn State University epidemiologist and an expert on drugs in sports. "The Tour de France riders are tested up the wazoo, and guess who caught them [using EPO in 1998]? French border police. Chemists had nothing to do with it."
"Integrity is relative": "Babe Ruth hit 714 home runs without facing a single black pitcher. No asterisk for him."
"Safety first?" We don't know enough about the long-term health effects of steroid use in a man's prime sports-playing years, Lyle Alzado notwithstanding; and anyway, isn't a viable solution to that to have steroids administered under the care of a doctor?
"Fans don't care": "Drug rumors didn't dull the excitement surrounding Bonds' 73-home run season. Nor did they prevent Marion Jones from becoming the darling of the Sydney Games."
But he glosses over the most potent (IMO) point, which is that there is a substantial number of MLB players who do not want to dope up to play. Sixteen of the Chicago White Sox once voted to decline to take their mandatory steroid test, because declining to take the test would result in their tests falling into the "positive" column for purposes of a five percent threshold in the collective bargaining agreement that would mean stricter testing leaguewide. They wanted to root out the cheaters.
Hruby says "In theory, nonusers should be furious with their juiced-up peers. The cheaters are getting over. Yet track athletes aren't banding together to out their dirty counterparts; given a chance to institute steroid testing, baseball players chose a lax, toothless system." That's a bit disingenuous; the baseball players' union chose a "lax, toothless system." That's because it caters to its highest-paid members, who are likely to be among the highest paid because they juice up.
Baseball players should not be forced to use steroids to play on a level playing field with those that do (and possibly to keep their jobs), as long as, as Hruby concedes, we don't know what the long-term health effects of steroid use are.
Hruby concludes:
This is a performance-enhanced age, an era of Viagra-popping, Botox-shooting bliss. Wellness is the standard; better than well is the goal. Genetic therapy promises a brave new world of medical breakthroughs. New doping techniques, too.
Drugs are easily banned. Human nature? Not so much.
It's a false conclusion; the fact that people will always cheat does not mean they shouldn't be punished, or that rules shouldn't be made and enforced. (People will always kill other people, too. It's human nature. Should that be made legal?)
In the end, it shouldn't be fans, owners, the commentariat, or certainly sportswriters who decide steroids' place in baseball, it should be the players. If a substantial number choose to compete without their aid, they should be allowed to do so against others who do, too.
12/21/2004 A "fellow journalist" wants to know why Keith Olbermann isn't devoting as much energy and attention to fraud in Pennsylvania, which Kerry won "by almost exactly the same margin as Bush won in Ohio":
So why can't "voting irregularities" possibly show the democrats benefiting from machine errors in the Keystone State?
The fact that you are harping constantly on supposed problems in Ohio (even though you and David Shuster conceded to me in e-mails that the election has no realistic chance of being overturned) and even brought up FLORIDA, where Bush won by a wide margin, is very troubling when you aren't mentioning Pennsylvania. This is common sense, Mr. Olbermann, but I fear that you are so caught up in the self-indulgent aspects of this 'story' that you are not seeing the big picture and are instead letting your political leanings infect your work.
Love it and leave it Perry de Havilland's post today at Samizdata is wrenching. To think that for about five minutes after September 11 was settling in, I was in favor of national ID cards here. Now, they'll be the law in Britain, in an execrable infringement on civil rights.
I am on the e-mail list of the Free State Project, referenced in Perry's post, though with my wife suffering from Scleroderma (cold = bad) and kids in school, the chances of our emigrating there are slim the next 15 years or so. I'm glad Perry's chosen that destination and hope the FSP meets all its goals. With less organization, the opposite happened to Vermont, after all. Anything can happen.
A moment of silence for Our Oldest Friends, the Brits. Here, Lincoln promised that government by the people, for the people would not perish from the earth; he delivered on that promise because Charles Francis Adams kept the Brits from taking the South's side in the Civil War. There, Churchill said:
Still if you will not fight for the right when you can easily win without bloodshed, if you will not fight when your victory will be sure and not so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves.
Or move to New Hampshire. Back here, Warren Zevon wrote: "Life'll kill ya, wherever you go. Requiescat in pace, that's all she wrote." R.I.P. civil liberty in Britain; I hope and pray Perry finds a haven here in 2007 or so and not a like society.
Bills' dominoes falling Let's be perfectly clear: The Bills' road to the playoffs is looking better and better.
I would never root for a Miami win, but their beating New England last night puts the Steelers in a position where if they beat Baltimore at home this weekend, the final game of the year at the Ralph will be meaningless to the Steelers.
Denver has to lose at Tennessee on Saturday. (Or the following week, but let's take it a week at a time.)
Baltimore has to lose to the Steelers.
Jacksonville has to be upset at home by Houston. This one's tough, obviously. If it doesn't happen, Jacksonville has to lose its last game of the year at Oakland.
If the Bills beat San Francisco on the road Sunday, after Denver, Baltimore and Jacksonville losses, they will control their own destiny. And will make the playoffs as the final wild card if they beat the Steelers, who have nothing to play for, at home.
12/20/2004 Monday morning quarterback First big snowstorm of the year, annual trip to the UPS Store to ship out presents, Christmas is coming, and thoughts naturally turn to... sports:
Three of the four things that had to happen yesterday for the Bills to be sitting pretty in the AFC playoff picture happened. Indianapolis beat Baltimore, and Kansas City not only beat Denver but made it clear the Broncos, without a very difficult turnaround, aren't really into this thing anymore. Plus, the Bills won, of course; not with 37 points or more, as in the last four games, but with 33.
But unaccountably Jacksonville went into Lambeau and beat the Pack. Jacksonville has to lose one of its next two, home to Houston or at Oakland, or even if the Bills win out they won't make the playoffs. Denver and Baltimore also each need to lost one of their next two games; Denver is in Tennessee and seems to be mailing it in (fingers crossed), and the Ravens play the Steelers, who are probably eager to avenge their only loss this year. The Bills will be in San Francisco.
All eyes, when not on the Bills, are on the Jags. The Jets ensured the Bills can't beat them out of a spot by winning their tenth game yesterday.
I lost in the playoffs in one fantasy league, the one I really want to win, and should probably advance in another (my opponent has a couple players going tonight trying to make up a 13.5-point deficit).
Dear Mr. Cosh: If they're not going to award a Stanley Cup this year, might I suggest they give it to the Sabres to make up for that debacle in 1999? The Stars dserved it that year, but it sure would be a nice gesture. Don't you think?
I've only been half on the lookout, but how long before someone writes that Billy Beane traded Mark Mulder and Tim Hudson because his ego couldn't handle the A's success of the last few years being attributed to the Big Three, and not Beane? If someone has already, it wouldn't surprise me; just let me know. We're already hearing that he's doomed the team to mediocrity.
Evaluating Beane's moves so far this offseason, which I think have been unequivocally good, doesn't mean much anyway. Jay Mariotti wrote this weekend that pennants are won in December; well, the AL West is usually won in July, when Beane trades for Jermaine Dye or Jose Guillen, or otherwise in-season. Say, Jay, you think the Red Sox won their championship in December, 2003, when they were busy botching the A-Rod trade? Or was it when they moved Nomar for infield defense and shored up their bullpen with guys like Terry Adams and Mike Myers?
I play in two NL-only fantasy leagues and two AL-only ones. Via The Transaction Guy, here's a list of what players have moved from league to league:
AL to NL
Alfredo Amezaga, Geoff Blum, Juan Castro, Nelson Cruz, Troy Glaus, Jose Guillen, Cristian Guzman, Felix Heredia, Tim Hudson, Matt Lawton, Carlos Lee, Justin Lehr, Jon Lieber, Kenny Lofton, Pedro Martinez, Damian Miller, Mark Mulder, Ramon Ortiz, Mark Redman, Denys Reyes, Benito Santiago, Omar Vizquel, Ben Weber, Eric Young
NL to AL
Adrian Beltre, Paul Byrd, Kiko Calero, Juan Cruz, Seth Etherton, Steve Finley, Keith Ginter, Dan Haren, Dustin Hermanson, Jose Hernandez, Richard Hidalgo, Jason Kendall, Terence Long, Matt Mantei, Eli Marrero, Scott Podsednik, Edgar Renteria, Juan Rivera, Felix Rodriguez, Richie Sexson, Mike Stanton, Charles Thomas, Luis Viacaino, Kevin Walker, David Wells
Mr. Guy adds this commentary: "One-league fantasy baseball leagues are going to be busy come draft day. Here’s a question: which of those two teams would you rather have? The NL gained some serious pitching, and enough bats to balance out the additions to the Junior Circuit, but the AL got some live arms as well. I’d take the new NLers in a seven-game series against the new ALers." Certainly plenty of people to (get others to) overspend for in auctions.
One of my leagues' online Winter Meetings are tonight, but we've made plans today to probably go shopping. My stepdaughter wants to shop for her friends, plus, got an iPod Mini from her dad at her birthday party this weekend and then left the charger at dad's, so it's out of juice. We said we'd buy her one for home and she could keep that one there.
12/17/2004 The "Kinsley Challenge" Much bandwidth is being generated -- in the passive voice, no less! -- about Michael Kinsley's plea to the blogosphere via Andrew Sullivan to come up with an alternative way of looking at Social Security privatization to one which Kinsley considers "not just unlikely to succeed, for various reasons that are subject to discussion[, but] mathematically certain to fail." Smarter people than I have weighed in here, here and here.
What I've yet to see discussed is the effect privatization, in whatever form, would have on the saving habits of those of us, myself and my wife included, who currently use the vehicles of 401(k)s, 403(b)s and IRAs. Is there some reason that escapes me why I, relieved in some part of the requirement that I fund Social Security, would invest whatever sum that was in addition to my 401(k), which gets $250 a month? I happen to think my $250 a month -- matched 125 percent by my employer (jealous?) -- is going to be plenty to retire on if I keep it up. Won't people similarly situated to me use the "extra cash" to spend now, or save for more intermediate goals like college tuition or a new home? Won't the economy thereby grow?
Forget the details, such as that I won't get what is now withheld for Social Security in my pocket to spend however I'd like, in other words, there'll be a "forced savings" whereby I'll have to invest it somehow. Fine, then don't I at least possibly reduce my 401(k) investment? The employer match is great, but if I have more to save, and am forced to save a portion, I am likely to reduce my pre-tax contribution via the 401(k) mechanism. Considering that it's the rare employer indeed that matches 125 percent or even any substantial amount, and considering that a huge percentage of workers today have 401(k), 403(b) or IRA accounts, it seems logical that behavior will change and more money will be freed up for spending or intermediate saving.
Is there something wrong with that? I don't think so, and I wonder if anyone responding to Kinsley's "challenge" has considered it. Kinsley, after all, says:
Greater economic growth requires either more capital to invest, or smarter investment of the same amount of capital. Privatization will not lead to either of these.
Untrue; it will most certainly lead to "more capital to invest" -- the money "freed up" from 401(k) investments and such.
UPDATE: I thought it was clear enough as to not need to be mentioned, but re-reading my post maybe it does: What I posit about the saving behavior of those who currently invest in 401(k)s, 403(b)s and IRAs is made possible if the sum of money we are "entrusted" to invest for ourselves instead of being forced to apply it to Social Security can earn a better return for us as investors than Social Security would. Which would not be difficult, which is part of why I didn't think it bore mention. But there you go, just in case.
UPDATE II: An e-mailer correctly points out that money "freed up" from 401(k)s and such is not "more capital to invest," like I say it is, since it was already invested in capital. He's right. The point I should have made and didn't was that "greater economic growth," which is what Kinsley is after in the passage cited above, will come from that "freed up" money.
I have enough trouble with a top 20 Someday, I've said to myself occasionally since about 1987, I'm going to make a tape -- er, CD, now, of my 20 favorite songs of all time.
So I'm extremely impressed with this and its companion website. Ordering and annotating your 500 favorite songs? Cripes.
Because, see, what's kept me from making that CD is that I've never been able to come up with good criteria for what makes the list and what doesn't. Does a song have to be at least X years old, sort of like the waiting period for the Hall of Fame? 5:15 a.m. is a song on the new Mark Knopfler CD that I like a lot, and if I made a list of my top 20 songs, might it be on it, and if so, would I come back to that CD I made a year and a half from now and go "fwah?"
But five years, for example, is too long; Lonesome Day would be on the list, but not if I had a five-year waiting period.
Lately, by which I mean for a year and a half or two now, I've been making a mental note, or, sometimes, and out loud note to my wife if she's in the same room, when a song comes on that should merit top 20 consideration. I've been sort of on-the-fly compartmentalizing them: top five, 6-10, 11-15, 16-20. The main drawback to this you might be able to guess: I'm not writing any of it down.
So I applaud, am in awe even of, Michele's effort. It's a great idea. Maybe I can keep the droves of people who are already failing to read this blog away even more by using it as a medium for writing down when I have a "top 20" moment. I think I'll do that. I'll start with some obvious ones:
1-5: Romeo and Juliet, Dire Straits; I Will Never Be the Same, Melissa Etheridge 6-10: Lonesome Day, Bruce Springsteen; With or Without You, U2 11-15: Most of the Time, Bob Dylan; Prime Mover, Rush 16-20: Heavy Metal Drummer, Wilco; Heart Shaped World, Chris Isaak; The Boy Inside the Man, Tom Cochrane & Red Rider 21-25: Truth and Bone, Heather Nova; Scenes From an Italian Restaurant; Billy Joel
The good thing about slotting songs in a range of course is that it's easier to juggle once you get 20 (or more) in there.
UPDATE 12/22: Maybe it should be a top 25. In the 21-25 slot I suspect would be Truth and Bone by Heather Nova. I have added With or Without You (Con o Sin Ropa, to resurrect a 17-year old inside joke) to 6-10, though it may end up between 11-15, and Heart Shaped World, my favorite Chris Isaak song, in 16-20.
UPDATE 1/7: Added Prime Mover by Rush and I Will Never Be the Same by Melissa Etheridge.
UPDATE 1/13: Added The Boy Inside the Man and Scenes from an Italian Restaurant.
12/15/2004 And I was saying that in 2003 Megan McArdle posts excerpts from a Wall Street Journal article today that dares ask the question whether any law was broken by "leaking" Valerie Plame's occupation to the press. It says and she says she's convinced none was, and that's right. I wrote about this in Toogood Reports last September. I don't reproduce it among my "blasts from the past" because by the time I resurrected my blog nobody cared about Valerie Plame or Joe Wilson anymore.
But there were other things to consider about the case, and I reproduce them in slightly updated form here (original can be found in its entirety here):
Why did the CIA confirm her employment?
The Washington Post reported that “[w]hen Novak told a CIA spokesman he was going to write a column about Wilson’s wife, the spokesman urged him not to print her name ‘for security reasons.’” Novak himself said that “[t]hey said it’s doubtful she’ll ever again have a foreign assignment. They said if her name was printed, it might be difficult if she was traveling abroad, and they said they would prefer I didn’t use her name.”
Confirming that Plame is a CIA employee who once had “foreign assignments” whose name they would “prefer” Novak did not use is probably not the kind of “affirmative measures” the law is talking about. Personally, I would prefer that the CIA’s standard reply to inquiries like Novak’s be “we don’t comment on personnel matters,” but evidently Plame’s employment wasn’t a terribly big deal.
This story percolated above the fold on [September 27, 2003], when the Post reported that “a senior administration official said that before Novak’s column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife…. ‘Clearly, it was meant purely and simply for revenge,’ the senior official said of the alleged leak.”
Follow up question, then:
What to make of this “senior official” who claims “revenge”?
We can’t discount the possibility that someone is being condescending. “Clearly, the Cardinals won the National League Central,” someone snooty might say. But it’s more likely that this “senior official” was stating a conclusion of his or her own -- secondhand -- analysis. With firsthand knowledge, he or she would more likely have said, “the motive was revenge,” or, better yet, “So-and-so said to do this to get back at Wilson.” So, how credible is this source? Is he or she the one with an axe to grind?
If what this “senior official” said is true, why didn’t these six reporters report that the White House was trying to leak a CIA operative’s name?
On Monday, the Post reported: “John Roberts, a CBS White House correspondent, said that to his knowledge, no administration official had contacted anyone at the network about Wilson. If anyone had called him, Roberts said, ‘I’d immediately have to wonder what the ulterior motive was. We’d probably end up doing a story about somebody breaching national security by leaking the name of a CIA operative.’”
Roberts and any of dozens of other media types. You get a call from a White House aide outing a CIA operative, and you don’t swing for the fences? The Post said on Sunday that “[s]ources said that some of the other journalists who received the leak did not use the information because they were uncomfortable with unmasking an undercover agent or because they did not consider the information relevant to Wilson’s report about Niger.” Set aside for the moment how these “sources” know that (consider how much more powerful it would have been to be able to report: “journalists we talked to who received the leak said they did not use the information because…”).
So, let me get this straight. These journalists were uncomfortable identifying what they believed was an undercover agent, and so, we’re led to believe, were appreciative of the gravity of such a leak. But they did not report that the leak was attempted -- without using her name? To what end? Is it that conservative bias in the mass media again?
Let’s turn to another angle of this: that this illegal leak was motivated by, pick one, revenge, intimidation, or a desire to “smear” Wilson.
Is the claim of “revenge” credible?
A lot of blog and op/ed bandwidth has been spent on this question already, but succinctly: How does identifying Wilson’s wife as a CIA employee get “revenge” on him for concluding the Iraq-Niger yellowcake deal never happened? “We’ll show you, we’ll tell Bob Novak your wife works for the CIA”? The imaginative can think of a dozen better ways to get “revenge” is that’s the idea -- starting with getting Plame fired.
Add to that that whatever satisfaction there may have been in this “revenge,” does it outweigh (1) the possible national security ramifications, if indeed releasing Plame’s name compromises intelligence sources, and (2) the very obvious political ramifications (is there anybody who couldn’t have foreseen the present controversy)?
Is the claim of “intimidation” credible?
For his part, Wilson said on MSNBC Monday, among other media, he believes the intent was to “intimidate” others into not speaking out against the administration. To the extent other people in a position and with a platform to criticize the administration have spouses working for the CIA and want to keep that secret, maybe that has some legs. But what about others not so situated?
On NPR’s All Things Considered Monday, Wilson was asked whether he knew of anyone who had been intimidated since July (when his wife’s identity was revealed) into not speaking out. He did not.
Is the claim of “smearing” credible?
Wilson, who should probably pick a lane, also variously says that the leak was intended “to smear my good name and my wife’s good name.” It is unclear how identifying Ms. Plame as a CIA weapons of mass destruction expert does either. One suggestion has been that the idea was to suggest that Wilson -- whose investigative background is not evident from his resume -- was sent to Niger not because he was the man for the job, but because his wife suggested it. Imagine, though, that Wilson and Plame were not married. “Leaking” the information that Wilson was sent to Niger at the suggestion of a CIA WMD expert would tend to enhance his credibility, not diminish it.
I was saying that in 2001 At the soon to be renamed Kerry Spot, Jim Geraghty cites a New York Sun passage by Andrew Ferguson which says, in reference to John Ashcroft:
In American politics, every administration needs a bogeyman - some unlucky staffer or Cabinet member who draws controversy and disdain the way Velcro draws lint. The advantages to the president in keeping a bogeyman handy are obvious, since the controversy and disdain that might otherwise fall on the commander in chief are deflected elsewhere.
This reminded me -- gee, can't think of why -- of my Toogood Reports piece from December 2001, Ashcroft's crucial role: Administration lightning rod. Geraghty -- who parenthetically even notes "I suspect 'lightning rod' is a better term for this role in the cabinet" -- goes on to note a "surge in criticism" of Sec. Rumsfeld, so as I reviewed my old article, it was kind of interesting to come across this passage:
If the administration wanted for even a second to deflect some heat from its Attorney General, the President would have Secretary Rumsfeld invite himself before the Judiciary Committee to discuss whatever issues they might have with military justice. The only more effective way to cow the committee would be to have not the second-most popular man in the country, but the first, the President himself, come testify. The thought of Rumsfeld barely containing his irritation while he answers vapid questions from Congressional committees makes Senators and other opponents of the tenor of the campaign against terror swoon with anxiety, so Mr. Ashcroft, you plump, juicy, easy target, you, you're up.
Remember when Don Rumsfeld was "the second-most popular man in the country"? Complete with artictles and cable news pieces about how sexy he was and such? Seems like decades ago, doesn't it? But he was indeed, before his Sammy Sosa-like fall from favor.
Kerry gains in Ohio! "After 10 hours of inspecting and recounting ballots, Portage County’s presidential vote came out one vote higher for Democratic candidate John Kerry," reported the local paper this morning.
“Today is indicative of how well this board of elections is run, and elections are conducted, by the staff. The results show the integrity of how this system is run,” said Paul Jones, chairman of the county elections board.
County election officials expressed irritation with having to go through the process, noting the Green Party did not have a candidate on Portage ballots, and there was no chance for Kerry to close the 91,000-vote gap in Ohio that gave Bush the win.
As part of a statewide recount of the Nov. 2 presidential election, Portage County recounted all 77,634 ballots cast. The final count now stands at 40,675 for Kerry and 35,583 for Bush.
No gain -- that is to say, no vote at all -- was recorded for the Green Party, which was not on the ballot in Ohio but which [quote signs in air] requested, working in cahoots with the [quote signs in air] Libertarian Party, and [quote signs in air] paid the mandatory $10 per precinct fee for, the statewide recount, which is costing my state's taxpayers about $1.5 million.
When you click the link, the severe-looking woman standing is, according to the caption in the print edition, "Green Party witness Leatrice Tolls." Someone call Keith Olbermann!
12/13/2004 A "desperate, petulant, failing struggle to make themselves look good" is going on over at Keith Olbermann's blog, where he sees "smoke" in the fact that two Green Party "observers" to the recount that's costing my state $1.5 million were asked to leave the Greene County, Ohio county records building because Ohio law specifies that one Democrat and one Republican must be given access to view recount proceedings, and no one else (particularly, but not exclusively, if your party wasn't even on the ballot and is teaming up with the Libertarian Party, which was, to be front men for the CantMoveOn.org wing of the Amazing Shrinking Democratic Party).
"And here is [Secretary of State Ken] Blackwell, having insisted on 'Countdown' that there would be a re-count and his office would take no steps to prevent it, stepping on his own feet in Xenia, Ohio," huffed Keith. For crying out loud. [Slowly, like the teacher in Ferris Bueller] "In... what... way..." has this entailed the Secretary of State's office "taking steps to prevent" a recount?
According to Keith, Blackwell's office said, correctly, "the Greens’ observers were kicked out because they were neither Democrat nor Republican, even though the recount is being sponsored by, and funded by, neither the Democrats nor the Republicans." [Emphasis in original] J'accuse Ken Blackwell! He's applying... the... the... law!
I remain, doggedly, an admirer of Keith Olbermann's. An acquaintance used to work for him and vouches for the fact he may be one of the smartest men alive, I loved the Sunday SportsCenters with him and Dan Patrick, and I even get a kick out of Countdown sometimes. But Keith is starting to get on my nerves.
"Smoke — plenty of it," Olbermann writes. "And little obvious means of telling whether it’s the smoke of a flawed election, or the stuff set ablaze by Ohio officials falling into the fireplace during their desperate, petulant, failing struggle to make themselves look good."
Maybe what you're seeing is what you're blowing up our asses, Keith.
For the Bills to make the playoffs I wrote a couple weeks ago they could do it if they won out, and they still can. Here's what has to happen.
New England either losing at Miami (I refuse to root for that) or at the Jets would leave them 14-2, probably, and Pittsburgh, who gets the Giants in New Jersey and Baltimore at home (and must beat Baltimore for the Bills to have a realistic shot; more below), would go into its season-ending game at the Ralph with its number one playoff seed sewn up, making that game more winnable. I think, having scored 37 or more points in four straight games, the Bills can beat the Steelers even with something to play for, but it sure would make life easier if New England coughed up a loss in the next two weeks so we saw the Steelers' second string.
Baltimore, now 8-5, needs to lose two of its next three. It can happen: They are at Indianapolis and then at Pittsburgh the next two weeks. Were they to win one of those games I would have to root for the Dolphins to beat them at Baltimore in week 17, and I refuse to do so. So, Indy and Pittsburgh will have to take care of business the next two weeks.
Denver, also 8-5, likewise needs to lose two more. This is tougher, but looked nice 'n juicy at the beginning of the year: They travel to Kansas City and then to Tennessee the next two weeks. If they split those games, they see Indianapolis at home, possibly playing for either Peyton's record (though it's likely wrapped up by then) or jostling for a playoff seed. As bad as tonight's MNF teams have been record-wise this year it's still going to be tough to go to Arrowhead and to Tennessee and win. Let's cross our fingers.
Jacksonville has to lose just one of its next three: at Green Bay, home to Houston, or at Oakland. Let's hope Favre and company can take care of that next week and clear them out of the way.
Now, all this assumes that the Jets, now 9-4, win at least one more game, as would befit a 9-4 team. The Bills have split with the Jets this year and I confess to not knowing what the next tiebreaker is, division record? Anyway, realistically, to vault over the Jets we'd have to win out and have them lose out; they see Seattle and New England at home and then go to St. Louis. All three teams are motivated by playoff considerations, so won't roll over, but I won't hold my breath. If by some miracle the Jets lose all three of those -- and remember, we kind of hope they trip up the Pats if the Dolphins don't -- then one of the above scenarios involving Baltimore, Denver and Jacksonville can fail to happen and the Bills still squeak in.
And, it assumes, but does not take for granted, that the Bills win out, as I posited first thing above and wrote about before. We go to Cincinnati, a tough but winnable game the way things are going, then to San Francisco, which is a mess, before entertaining the Steelers.
It never occurred to me sitting there at the Ralph watching Jacksonville beat us on the last play of the opening game of the year that I might have seen the play that determined whether we got into the playoffs, but it's looking more and more like that's just what it was. Stupid back judge calling that Wilford was forced out of bounds and would have landed in. I still disagree.
12/11/2004 Retirement of Pickering and filibusters I saw this posted at The Corner Thursday then never came across it anywhere else -- not that I was looking. "Charles Pickering, the Mississippi judge whose nomination to the Fifth Circuit Court of Appeals was filibustered by Democrats, and who was then placed on the court by recess appointment, has announced that he will retire rather than ask to be re-nominated for another attempt at Senate confirmation," wrote Byron York at The Corner, and I decided to quote him rather than inartfully paraphrase. In pertinent part Pickering's retirement statement read:
The bitter fight over judicial confirmations threatens the quality and the independence of the judiciary. The mean-spiritedness and lack of civility reduces the pool of nominees willing to offer themselves for service on the bench. For the first time in the history of the Senate, judicial nominations were blocked by filibusters.
The recent election demonstrated that the American people rejected this unprecedented obstruction by the minority Senate leadership. Those voices will continue to be heard until the confirmation process is reformed and judicial filibusters ended.
Extreme special interest groups opposed my nomination primarily due to their hostility to any nominee with strong religious convictions who personally disagrees with them on abortion, marriage and references to God at public ceremonies and institutions. They demonstrate their intolerance and religious prejudices not just in opposing my nomination, but also that of the Catholic nominees who hold deep religious beliefs. These groups believe nominees with committed religious values are not qualified to serve on America’s federal courts, despite the fact that our judicial records, statements and testimony demonstrate a commitment to uphold the law and current precedents. These far left groups cowed Democrat leadership into opposing my nomination. In doing so, they pushed those Senators out of the American mainstream, some out of their Senate seats, and the Democratic Party out of entire regions of the country.
Yep. There has been a fascinating 180 done on filibusters by blue state academics, as has been pointed out at The Volokh Conspiracy and then, more recently (tipped to the link by Volokh again), by Sen. John Cornyn, who wrote letters to the editor of both the New York Times and the L.A. Times which unaccountably were not published. Read the whole post by Stuart Buck. Just to whet your appetite: A NYT editorial on November 28 said,
The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.
Sen. Cornyn -- whose letter, again, has not been published -- replied in part:
I read with great surprise Sunday’s editorial praising the filibuster as a worthy obstructionist tactic in the United States Senate [Mr. Smith Goes Under the Gavel, November 28, 2004]. After all, it wasn’t long ago that the Times advocated just the opposite.
On January 1, 1995, the Times editorialized that it was “Time to Retire the Filibuster,” describing the tactic as “the tool of the sore loser” and “an archaic rule that frustrates democracy and serves no useful purpose.” Have times changed – or has the Times changed?
Sen. Cornyn goes on to point out that filibusters aren't "sacrosanct," and this century is the first time in our history they were ever used to deny judicial appointments the full Senate would have supported.
I doubt I would go as far as Edwin Chemerinsky, who, as the first Volokh post above points out, in 1997 seemed to support the idea that the 2/3 requirement for changing the filibuster rule is unconstitutional (remember, or note if you haven't clicked through the links, that Chemerinsky is now writing L.A. Times op-eds saying Republican opposition to filibusters is "obstructionist and disingenuous"). The Senate is constiutitionally empowered to make its own rules about how it does business unless otherwise specified in the Constitution. But to the extent they represent veto power for a minority of Senators over the will of the majority, they're nothing you want to trot out as an example of republican democracy at its finest.
I've written before that "outcome-based" Democrats don't seem to get that you need to have procedural rules in place that you are comfortable abiding by whether you're in the majority or the minority -- like, say, the Constitution of the United States. The NYT's, Chemerinsky's, et seq. bald reversal on filibusters is further demonstration of that point.
12/9/2004 I said a "good intersection" Below I write that "I was going to wait for a good intersection between libertarianism and steroids in baseball before I posted." Matt Welch's screed at Reason's website doesn't count.
I'll concede the following of his points: If the government is leaking grand jury testimony in order to smear players, that's troubling. Just "troubling"? Yes, just "troubling," because they're not making stuff up; Giambi admitted to steroid use, right? After repeatedly publicly denying it.
Sen. McCain's threat to instigate Congressional action if the Players Union and MLB can't work it out is more than troubling. I will agree with Welch that "if my boss were to demand suddenly that I submit to urine-testing, I wouldn't want the Senator from Arizona promising to crack skulls if I didn't agree." Welch continues, by the way: "And unless baseball has some post-Moe Berg National Security component I'm unaware of, I don't see why Congress should care." Congress has exempted Major League Baseball from antitrust laws, Matt. It can revoke that exemption if it wants to.
Huffing that "there is such a thing as the presumption of innocence, no matter what you read in the sports pages. As it stands, Barry Bonds has not even been formally accused of violating a single baseball rule, let alone federal law," Welch seems bound and determined to make this primarily a case of government abuse of power. There is a presumption of innocence in a court of law, Matt, not on "the sports pages." I'm with you that we could do without grand jury leaks and Sen. McCain's strong arming, but aimless ridicule and vapid bluster adds nothing to the discussion.
Why couldn't Reason have commissioned Virginia Postrel to write its article about steroids in baseball?
Steroids in baseball A million words have been written, the majority of them emotion-based, about this and I was going to wait for a good intersection between libertarianism and steroids in baseball before I posted. Lo and behold, the smartest woman in the world, Virginia Postrel, weighs in on the Dennis Miller Show last night on his "Varsity" panel.
Her gist (transcripts, as far as I can tell, not available for the show): There are implicit rules, which she's fine with: Excel, do your best, be the best player possible, by means of diet, exercise, training, even steroid use. But there's an explicit rule that says: No steroids. So given that there's an explicit rule, that makes it a no-no.
As posited, this is entirely true and probably hits the nail on the head. If baseball players are expected to excel, should they not use any means at their disposal to do so? No, you may say, where their health may be on the line; so maybe the solution is to allow steroids under supervision of a team (i.e., MLB affiliated) physician. But the problem is that there is a large majority of MLB players against steroid use, who want to compete on a level playing field and don't want to be forced into doping up if they don't want to. (And who don't want people wondering if they have, when they haven't: Take Frank Thomas of the White Sox, one of my favorite players of all time, who still looks like a tight end from Auburn, which he was. He had some of the finest seasons in baseball history without Jeff Bagwell's freakish forearms or Jason Giambi's artificial bulk, but he'll be looked at askance by baseball history because of the time during which he played.)
But the salient point is that there is no rule barring steroid use in Major League Baseball. According to the Collective Bargaining Agreement, anonymous steroid testing on a regular basis kicked in last year because a certain percentage of random tests came back positive. The thrust seemed to be that the players were to be given every opportunity to discontinue use through peer and media incentives. But no rule ever made it on the books.
According to Sports Weekly, "The Joint Drug Prevention and Treatment Program, the sport's first testing program, is part of the [CBA] that took effect in 2003 and is 27 pages long, four pages of which are a meticulous 20-step procedure for collecting urine samples players must produce."
David Pinto notes that Donald Fehr, head of the Players Union, will be actually reopening a negotiated agreement to address the matter:
"The Players Association and the commissioner's office have been engaged in discussions with respect to potential amendments to the steroid-testing provisions of the basic agreement,'' he read from a formal statement. "At its meeting today, the executive board received a full report and, after discussion, authorized us to attempt to conclude an agreement consistent with those discussions."...
This is a bombshell. The union has always been about protecting the richest of its members by driving up free agent prices. That was fine as long as the payoff appeared to be related to talent. But now the rank and file see steroids as taking money out of their pockets. The playing field is no longer level in their perception, and they want to go back to competing on talent, not drugs.
He's right. But the point is that there is no "explicit rule," at least in the form of "thou shalt not use steroids." That's the fault of the Players Union, with a big assist from MLB itself which saw Mark McGwire and Sammy Sosa "rescue" baseball after its horrendous World Series-cancelling 1994 lockout and pimped home run power. There should be a rule, and its goal should be to ensure that players are challenged to excel without chemical assistance.
12/8/2004 Overvaulation of homes Here's a piece I put together to "bank" for future publication somewhere. It deals with my area of employment and expertise, the appraisal industry, but it's written for general public consumption.
Appraiser independence necessary to curb foreclosures
Mortgage lenders and brokers have ridden a three-year wave of unprecedented loan activity. As the boom recedes, millions of homeowners are left with bloated loans secured by an illiquid asset.
The problem is exponentially worse for people whose loans far exceed the true market value of their homes: The balances (and payments) are artificially high, and if because of that they have trouble repaying, they will not be able to sell out from under their obligations. Foreclosure results.
These high-risk loans originate as offers of cash for sometimes nonexistent home equity, or an expensive way into a new home for borrowers who wouldn’t otherwise qualify for a mortgage. In many cases, the loans are insured for 100% loss by the Federal Housing Administration, which exists to shift risk for loans made to lower-income, less creditworthy borrowers to the government.
Real estate appraiser complicity in these “predatory lending” schemes has been well-documented. The loans, particularly if insured by the FHA, cannot be closed without an appraisal of the property. To loan more money than a house is worth, maximizing commissions, an appraiser often needs to sign off on an inflated value.
But no appraiser will overvalue a home without direction, implicit or explicit, to do so.
Too often, appraisers are asked to conform their appraisal report -- intended to be a neutral, third-party evaluation of a lender’s collateral risk -- to a desired loan amount. They may be told when the order is placed that if they cannot “hit” the loan amount, they should decline the assignment (and, not incidentally, the requester will take his or her business to a more pliable appraiser down the street).
More subtly, it may be suggested that future business from the mortgage broker or loan officer may depend on their opinion of a property’s value being sufficient to make the loan work. Worse, “blacklists” exist in many markets, whereby appraisers who do not “hit the number” lose work from other brokers and lenders as well.
At the heart of it, this is because the party responsible for contracting the appraiser does not make money unless a loan closes, and makes less money the lower the loan amount is. Appraisers, who are supposed to be paid a set fee for their work regardless of whether a loan closes, sometimes are not -- another reason he or she may feel pressure to perform to expectations.
Every appraiser who intentionally overvalues a home is guilty of professional misconduct. But the root of the problem is not the malleable appraiser, it is that a party whose payday depends on the loan closing wields the power of assignment allocation and fee payment over the appraiser.
The FHA has rigorous training and experience standards for appraisers whose work it will accept when deciding to back a loan. Incredibly, though, it allows the broker or lender to select the appraiser from among the 25,000 nationwide that are prequalified for FHA work.
This was not true as late as 1996. Until that year, the Department of Housing and Urban Development controlled FHA appraiser assignments, on a semi-random, rotational basis within a market area. It discontinued this system and turned FHA appraiser selection over to lenders, to relieve pressure on its field offices and in the interest of “efficiency.”
From a lending perspective, appraiser shopping is indeed a more efficient way to ensure a loan closes at a desired amount, but at what cost to the FHA’s first-time, lower-income, or immigrant homebuyers?
And at what cost to taxpayers? In a recent year, the FHA insurance fund paid out $125 billion in losses incurred when lenders foreclosed on “nonperforming” loans.
A stated goal of the Bush administration in its second term is to increase homeownership, particularly among minority and lower-income borrowers. It should be more concerned with keeping those borrowers in their homes, and should take back the selection of its appraisers from predatory brokers and lenders. A truly objective and independent appraisal is the only way borrowers and the FHA can be sure loan balances are not artificially inflated.
12/7/2004 Textualize this! Textualism is the legal theory that we should be concerned with the law says, interpret what the law says and be governed by what the law says, regardless of the intent of the people who drafted it (the best evidence of what they meant being what they wrote, anyway), regardless of why legislators may have voted for it (is there a relaibale way to ever know that? Do we even know if they read it before voting on it?), and certainly regardless of what we think it ought to say or mean.
Via Prof. Althouse's site we find this story which is, for a textualist, like going back to law school. What if a law is clearly "miswritten"?
[A] federal appeals court has handed the [defense] lawyers a stunning victory, but not for the reasons they cited. Instead, the court ruled that the sentence was invalid because the document signed into law by President Bill Clinton contained a phrase that was illogical.
The law said that defendants like Mr. Pabon, who was convicted two years ago of advertising to receive or distribute child pornography over the Internet, should be fined or receive a mandatory minimum sentence of 10 years "and both."
The appeals court said this language "makes no sense."...
What followed was some sleuthing: a representative of the Justice Department went to the National Archives to review the actual parchment copy of the law with Mr. Clinton's signature on it, the court said. There was the confusing language - a fine or a sentence "and both."
"That bill does in fact contain the 'and both' language," Judge José A. Cabranes wrote for a unanimous three-judge panel of the appeals court. "Our task here is not to doubt the accuracy or validity of that language, but merely to determine what Congress intended by it."
Mr. Clinton signed the law in 1996. In trying to determine what Congress actually meant, the court noted that the language of the law in the joint House-Senate conference committee was different: It called for a fine or a 10-year mandatory minimum sentence "or both." That suggested that Congress did not intend a mandatory term in prison, the appeals court said. In its ruling, the appeals court said the mistake was a "scrivener's error."
Now, your good textualists are all for finding and fixing "scrivener's errors." But, you rightly object, doesn't that mean you have to investigate the "legislative history" and "legislative intent," the latter of which you consider unreliable at best and unknowable at worst?
I suppose. I've set this post up as a challenge to my textualist beliefs, but honestly, don't they have people checking this stuff before bills are printed, and doesn't anyone in the President's office read them before they're signed?
Anyway, in this case I don't think it's reasonable to conclude that the "and" was anything but an error in transcription; how many other laws on the books call for a fine or jail time "or both"? Why would you fine someone for a crime not involving theft (restitution) and sentence them to ten years in jail?
But because there are two sides to every story, the government argued that the law meant what it said:
The office of United States Attorney David N. Kelley had told the appeals court that it believed Congress had always intended to impose a mandatory 10-year term on first offenders in such cases. Mr. Kelley's office conceded that the law could certainly have been more artfully drafted, but said it should be interpreted to require a 10-year minimum.
"It is inconceivable," prosecutors wrote, "that Congress meant to permit judges to impose either a fine or a 10-year term, and nothing in between, on first offenders."
Possibly. This turns out to be an easier case because the pornographer at issue will be jailed on another contemporaneous conviction, so we're not talking about whether we should either fine a child pronographer or jail him; given only those choices, most of us would want to jail him. He'll do his time.
But this case certainly is a challenge to textualists. What, hypothetically (even esoterically) speaking, is Mr. Pabon-Cruz's remedy if we go by the words of the statute, but we believe the resulting sentence is unjust? Actually, the pardon power of the Presidency exists for just such an emergency. If the President thinks Mr. Pabon-Cruz should only serve a year and a half, he can pardon him after 18 months.
But tracking down evidence that a law was simply mistranscribed is fine. Textualism doesn't go that far, I don't think. Interesting case.
12/6/2004 Want to win a geeky Constitutional bet? Bet someone who seems (or is) fond of sayng the Constitution doesn't mention God that it does.
The Week in Review section of yesterday's NYT included a story about a lawsuit filed by fifth grade teacher Steven J. Williams in Cupertino, California. His American history handouts (well, presumably, all of them) have been subject to pre-screening by the principal since last May, amid worries he "would try to proselytize his Christian faith to the students in his classroom," according to the federal lawsuit.
Barred from his classroom, Mr. Williams said, were handouts with excerpts from the Declaration of Independence, the "Right of the Colonists" by Samuel Adams, and the 1682 "Frame of Government of Pennsylvania" by William Penn. Also rejected were excerpts from George Washington's prayer journal and a handout titled, "Fact Sheet: Currency & Coins History of 'In God We Trust.' "
Ms. Vidmar [the Principal] nixed the handouts "because of their religious content," the lawsuit states. In it, Mr. Williams accuses the school district of excluding "the viewpoint that this nation has a Christian history" and of demonstrating "impermissible hostility towards religion." Mr. Williams says his materials had been singled out because of his Christianity.
School officials say none of the historical documents, or their underlying principles, have been banned from classrooms, only that Mr. Williams's use of them has been restricted. "No teacher has been stopped from passing out the Declaration of Independence," said Andy Mortensen, an assistant superintendent.
Given the venue, I can understand school administrators wanting to err on the side of not getting sued by some Michael Nednow. But honestly. Are we affirmatively trying to teach that no one who founded the country believed in God and was guided by Christian principles? No one?
Back when the Pledge case was decided by the Ninth Circuit I noted on a message board somewhere the absurdity of holding something unconstitutional that was optional because if a child opted out they might feel conspicuous. (I mentioned this in a longer piece on the Ten Commandments monument in Alabama.) I asked: What if a teacher required students to memorize and recite the Gettysburg Address in front of the class? No option?
Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us--that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion--that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.
Predictably, the answer was that my hypothetical was rote recital and not an affirmative "pledge" to believe and act a certain way (neither, of course, is the Pledge of Allegiance, to the extent a student may opt out of saying it, which they may), and also, this was a historical document, a speech actually delivered by a President. I was mostly willing to buy the latter, but it seems as though they won't in Cupertino.
Incidentally, in high school for a couple years there was a girl in my homeroom who was a Jehova's Witness and who would not stand for the Pledge. We did indeed make fun of her. We made fun of a lot of people for a lot of things in high school, didn't you? Just an aside.
Oh, to win your bet, direct your counterpart to the paragraph of the Constitution immediately following Article VII.
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.
12/5/2004 It's my First Amendment Eugene Volokh wrote a fine op-ed piece in the NYT last week about the extent to which First Amendment freedom of "the press" applies now to bloggers. A Terance Blacker in The Independentreplied huffily (article only available in paid archives now) that an unwelcome byproduct of this will be that "intolerance" and the like will be more likely to get through unfiltered by the people who know better -- i.e., professional journalists: "The approach has a sort of crazed egalitarianism to it, but it also suggests that more than just knowledge flows from professionals and their institutions in the age of the Pro-Am. The checks and balances and disciplines that keep intolerance in check may also go. If that is what the new amateurism brings, you can start the revolution without me."
Ok, deal. But I bring this up because it's always seemed to me that the First Amendment isn't supposed to "protect" or really "apply to" (although that's tougher) journalists or speakers of any sort. Participatory democracy isn't enhanced by the publication or speech of anything, only by its being read or listened to. The First Amendment applies to and protects me, the reader/listener, as a participant in our Republic, by allowing me to hear and be persuaded or dissuaded by as many competing ideas as possible.
And, no, there is no "right to be left alone," the Supreme Court's pro-abortion jurisprudence run amok notwithstanding. But to be a full and capable participant in self government I need to be able to buy the paper I want and click the link I want and tune to the channel I want (on radio or TV) and become fully informed, both about facts and opinions. I would like to see (but won't) journalists get down off their high horse as though the "freedom of the press" gives them some sort of Constitutional mandate to educate the great unwashed. It's my First Amendment, not yours. I need untrammelled access to information and persuasion in order for this country to work; you're not guaranteed a job by the Constitution any more than I am.
My post today is promted by an entry by Jim Lindgren on Volokh, arguing that freedom of the press = freedom to publish. I disagree; it's freedom to read (and hear).
12/3/2004 The world is watching Via SCOTUSblog we hear that the European community is "weighing in" and asking the U.S. Supreme Court for expeditious review of the Hamdan Guantanamo detainee case. By "expeditious," they mean the Court ought to take the case out of the D.C. Circuit altogether, where it pends now. (Hamdan's lawyer is asking for the same thing.)
An impressive list of members of the European Parliament and of the British Parliament told the Court Thursday that it should move with speed and urgency to rule on the legality of the military commissions President Bush has set up to try war crimes charges against detainees in the war on terrorism....
The case is now pending on appeal in the D.C. Circuit, after Hamdan won on key points in U.S. District Court, but Hamdan's attorneys have asked the Justices to bypass that court, and move expeditiously to decide themselves a host of major questions. The Justice Department, although in favor of expedition at the D.C. Circuit, has opposed the request to bypass that level of review. Friday morning, the Justices are not scheduled to act on Hamdan's appeal itself, but to decide only whether they will expedite their consideration of that appeal.
A total of 271 parliamentarians from British and the European Community fully supported Hamdan's maneuver in their Thursday filing. The Court was told that the group includes individuals "from all across Europe, both geographically and politically," that it "spans the political spectrum," includes "senior figures from all the major political parties in the United Kingdom," as well as five former judges of England's highest court, and eleven bishops of the Church of England.
In dramatic language, the new brief lays out what it sees at stake in Hamdan's case. "It is important to the international legal order that the United States exemplify, even when faced with the threat of international terrorism, the highest standards of public international law and human rights law...It undermines the political and moral authority of the United States, and damages the rule of law in a troubled world, if the United States, contrary to its long tradition, fails to uphold the standards that it has been so instrumental in creating."
SCOTUSblog notes that "the Court's response to Hamdan's maneuver may be known before the end of the day Friday, but, if not then, on Monday morning." I'll be flying to Oklahoma City in a couple hours and won't hear about it if they rule today probably till Saturday night or so. I've written before about how increasingly the Supreme Court is paying attention to overseas policies and laws in their review of cases, as have many more accomplished authors. It will be interesting to see whether, first, the Court agrees to bypass the D.C. Circuit, and second, what if any role the urging of the "European community" has in that decision. Though it's up in the air whether we'll know the answer to the latter.
It's tempting to remark about how well Britons urging action on the part of Americans against President Bush has been going lately, but I'll refrain. I will note that the brief is not only urging expeditious review, but a holding (eventually) that the administration's Guantanamo Bay policies are illegal ("Amici believe that the gravity of the issues involved, issues which concern all nations and most particularly those who share the commitment of the United States to the rule of law, and the need for speedy determination of the case to prevent Mr Hamdan’s continued detention without trial in violation of international law, require that the Petition be granted and the case be heard by this Court on an expedited basis.").
It's not uncommon, of course, for parties or amici to urge the Court to review a case because they believe they're right on the merits -- almost universally, that's why they petition for cert in the first place. But the language strikes me as a little grating. Maybe it's just me. "Please take this case now because Mr. Hamdan's detention violates international law and you need to hurry up and say so." Am I just being parochial? There is at least an argument that the detention doesn't violate international law; the government (the U.S. one, to be clear, since so many others seem to be getting involved) has made it, and is making it again probably as I type.
UPDATE 12/6: "No hurry on Hamdan," reports SCOTUSblog today. The Court denied the motion for expedited review.
12/2/2004 Things I read so you, and E.J. Dionne Jr., don't have to Mr. Justice Breyer recently made available his Harvard University Tanner series lectures on "Our Democratic Constitution" delivered Nov. 17-19.
Breyer, in a series of lectures at Harvard University, offered a bold challenge to conservative judicial activism. While he was respectful of his colleagues, Breyer put forward an alternative to the theories of conservative jurists such as Justice Antonin Scalia.
Conservative politicians, including President Bush, say that they oppose judges who "legislate from the bench" and that they hope to fill the judiciary with "strict constructionists." That sounds good, because we want democratically elected politicians, not judges, making the crucial decisions. Yet, at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves....
Breyer's worries about the new trends are rooted in his criticisms of the courts of the late 19th and early 20th centuries. He argues that they "underemphasized the constitutional importance of participation by black citizens in our representative democracy and overemphasized the importance of constitutional protections of property."
Later courts -- the New Deal and the Warren courts -- "emphasized the Constitution's protection of the citizen's freedom to participate in government" and thereby expanded "the scope of democratic self-government."
Breyer's master concept is "active liberty." He argues that the point of our Constitution is democracy -- to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes."
Yes, as you would expect, Dionne read the first few pages of the 25-page speech (Dionne goes on to write, "Breyer's lectures, which discuss key cases in detail,"... yes, over the last 21 pages, E.J.), but he does read those accurately. He even deftly links the "participation by black citizens in our representative democracy" to the current "conservative" bent on curtailing the influence of "activist judges," a connection I am quite sure Breyer did not intend. But Breyer doesn't have Dionne's agenda.
What he has is a myopic view of federalism. To Breyer, the federal government offers greater resources and expertise in areas like environmental protection and "chemical substance regulation," and works awfully hard to craft laws that benefit all the people, and courts should encourage this "participatory" aspect in lawmaking -- to his credit, he's careful to say that his concept of "active liberty" is not a magic key to unlocking all the troublesome Constitutional questions of our day, but he would approach his review of legislation from the point of view that if the laws are being made by representative bodies, that's good. Doesn't really matter which -- except insofar as Congress has more resources and federal agencies more expertise. For instance:
[C]onsider cases in which the Court has limited the scope of Congress's Commerce Clause powers. The Court has found that gun possession near local schools and violence against women in local communities do not sufficiently "affect" interstate commerce to permit Congress to legislate. Decisions in this ... category do mean less federal regulation. They do not directly discourage citizen participation in "incentive-based," or "cooperative" state/federal, regulatory programs. But in these instances the public has participated in the legislative process at the national level. Indeed, Congress held elaborate public hearings only to find its legislative work nullified.
Your honors, they went to all that trouble... maybe they didn't have the [quote signs in air] Constitutional authority, but they really put a lot of work into it.
Snarkiness aside, I wrote the word "Congress??" beside two passages in Breyer's discussion of free speech cases:
The democratic government that the Constitution creates now regulates a host of activities that inevitably take place through the medium of speech. Today's workers manipulate information, not wood or metal. And the modern, information-based workplace, no less than its more materially-based predecessors, requires the application of community standards seeking to assure, for example, the absence of anti-competitive restraints, the accuracy of information, the absence of discrimination, the protection of health, safety, the environment, the consumer, and so forth.
Laws that embody these standards obviously affect speech. Warranty laws require private firms to include on labels statements of a specified content. Securities laws and consumer protection laws insist upon the disclosure of information that businesses might prefer to keep private. Health laws forbid tobacco advertising, say, to children. Anti-discrimination laws insist that employers prevent employees from making certain kinds of statements. Communications laws require cable broadcasters to provide network access. Campaign finance laws restrict citizen contributions to candidates.
To treat all these instances alike, to scrutinize them all as if they all represented a similar kind of legislative effort to restrain a citizen's negative liberty to speak would lump together too many different kinds of activities under the aegis of a single standard, thereby creating a dilemma. On the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically-elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process would (if applied without distinction to all governmental efforts to control speech) unreasonably limit the public's substantive economic (or social) regulatory choices.
* * *
"[A]ctive liberty" is particularly at risk when law restricts speech directly related to the shaping of public opinion, for example, speech that takes place in areas related to politics and policy-making by elected officials. That special risk justifies especially strong pro-speech judicial presumptions....
[W]here ordinary commercial or economic regulation is at issue, this special risk normally is absent. Moreover, strong pro-speech presumptions risk imposing what is, from the perspective of active liberty, too severe a restriction upon the legislature - a restriction that would dramatically limit the size of the legislative arena that the Constitution opens for public deliberation and action.
My point (in annotating) being: What if the Constitution means what it says, and "Congress shall pass no law... abridging freedom of speech"? Breyer argues that that can't be taken literally, because otherwise Congress' powers to regulate would be "restricted" in a way he disfavors (and maybe most of us disfavor). But is it not at least possible that the framers of the Constitution meant that Congress couldn't pass laws requiring labels on products, disclosure of business information owners would rather be private, and -- quite a reach, here -- "insist[ing] that employers prevent employees from making certain kinds of statements?"
In other words, Breyer, for all his talk about participation in the democratic process, assumes arguendo that this means free reign for Congress to regulate activity that at least arguably the Bill of Rights says it can't.
We want labels that disclose the contents of our food, sure; we want businesses we invest in to be honest with us about their cash on hand, revenue, debt, assets, etc. What if Congress can't make them do it? It never seems to enter Mr. Justice Breyer's mind.
Breyer discusses a case in which the Court struck down a law forbidding pharmacists to advertise the availability of individual "compound drugs," drugs that the pharmacist makes up specially for patients with unique requirements due, for example, to drug-related allergies. He disagreed:
The pharmacists' speech ... did not directly serve any ... democratic purpose. The pharmacists did not seek through price advertising to contribute to a public debate about the relative merits of compound drugs. At most, they conveyed information that would help patients make more informed private decisions about what drugs to ask their physicians to prescribe. But this purpose, while important, is not so important that it justifies striking down legislation that regulates speech for sound reasons related to the traditional regulation of public health and safety. A contrary view of the First Amendment standard here fails to further, indeed it impedes, the workings of a democratically determined economic regulatory system. It restricts Congress's regulatory powers, preventing the public from achieving related objectives that the community democratically determines to be important.
Mr. Justice Breyer, the point of the Bill of Rights -- and indeed, though this notion is more quaint, the Constitution itself -- is to "restrict Congress' regulatory powers." So to scoff at the use of the First Amendment to strike down a law because it restricts Congress' regulatory powers seems... odd, to say the least.
This post is getting way too long. To sum up: Breyer believes an "active liberty" framework underlies the Constitution, intended to guarantee participation in the democratic process. I do, too. He seems not to acknowledge that the Constitution restricts Congress' power, in favor of more local governments. He equates action by Congress -- pursuant to its enumerated powers in the Constitution or otherwise -- with active participation by the electorate in its own governance. I'm sure it is, but so is voting for your governor, state senator and state representative, Attorney General, Secretary of State, and so on.
E.J. Dionne Jr., and to a lesser extent Mr. Justice Breyer, see a theory that defers to Congress on matters on which it has no authority as a plausible "alternative to the theories of conservative jurists." It is, but it's a lousy one.
Ees dees gud or bad? I heard Peter Stormare as Lev the Cosmonaut in Armageddon saying those words in my head as I found from my referral stats this morning that someone found this site searching for the phrase "the curse of not being able to speak coherently."
12/1/2004 Keeping your eye on the ball Not the way Ann Coulter suggests below, but my friend and college roommate, assistant Professor of English at U of Akron Al Ambrisco had a short piece published in the latest Elysian Fields Quarterly. It's online here.
When we met in September for an annual Bills game he told me it was a short piece about why he didn't like baseball, but by the end of it he seems to come around. I think that about sums it up. The bit about following the ball reminded me of Fox's horrifying decision to use comet trails to follow a glowing puck when it broadcast NHL games. Back when I was a hockey fan, I was as disgusted as any thinking person, but not so much because it made the game seem like a video game. It was distracting. You don't follow the puck, if you're watching hockey properly, you're watching who's open, who's trying to get open, who's defending, jostling in front of the net, the position of the goalie... ok, you're not watching any of those things currently, but you get my drift.
(The "when I was a hockey fan" link above is not the same one as I used in this post about Ron Artest; it's newly added to my Blasts from the Past to the right, something I put together for my long-defunct hockey news site Trolleytracks Hockey. It's the published piece of mine I'm fondest of because I got to interview one of my heroes, Mike Foligno, and he (a) took my call, right there in his office, and (b) was very generous with his time with someone writing for a third-rate hockey Internet site. I'll probably end up putting up more Trolleytracks, LCS, Rotowire etc. stuff as I get around to it.)
Anyway, Al, everyone knows you don't keep your eye on the ball when you're spectating. When you're playing, sure. You watch the ball when it's put in play by the batter, or a play at a base. You watch for foul balls coming in your direction, of course. But you watch the players, the baserunners, the defensive alignments, the pitcher, where the catcher is set up, the coaches, the T-shirt-shooting bazookas. Baseball is a story, as Al concludes. I don't know if it's a metaphor for fiction any more than it's a metaphor for anything else; it's a game, as complicated as chess (which you can't appreciate by just watching a piece or two).
We go to the games to watch the good guys in the right colored uniforms win, and exult when they do, and (more importantly, if you were raised a Bills fan) steel yourself when they fall short, because victory will be the sweeter later for it.
Note: This post just up and disappeared this morning, after being up since yesterday afternoon (it's 12/2 as I type). I have no idea what I or Blogger did. But I promised Al that at least seven or so people would now get to read his artcile that might not otherwise have, so I had to re-do it.
Animus
"My one purpose in writing I have explained over and over again: it is simply to provide a katharsis for my own thoughts.
They worry me until they are set forth in words." --H.L. Mencken
