::Freespace::

Slogans: Ah, in case I run out of cool lines like that quote from William Blake up there, I can just rely on this site. Some suggestions it�s produced so far:

Tim Saves Your Soul. [Not bloody likely!]
Washing Machines Live Longer With Tim. [Probably true, but not for the reason you'd like to think]
It's the Bright One, it�s the Right One, that's Tim. [It works on so many levels!]
Tim. It�s What�s For Dinner. [Um...]
Go Crack a Tim. [Hey!]
Tim with the Less Fattening Centres. [Not after that Greek food festival]
I Like the Tim in You. [You listening, Charlize?]

What can I say. Hours of fun.

Missing: For some reason, I miss E. more than usual today. Perhaps because it�s such a beautiful day. I went down to the Greek food festival in Folsom, and ate myself sick. (She liked Greek food.) A while ago, at work, I mentioned the John Lennon song �Instant Karma,� which the person I was talking to did not know; so I went out the next day and bought Lennon�s �Best of� album, to play it for her. (E. loved John Lennon.) Got the Lochnermobile washed today, for the first time in a long time. (E. used to tease me about how long I�d go between car washes�. Oh, she was

so lovly faire,
That what seemd fair in all the World, seemd now
Mean, or in her summ�d up, in her containd
And in her looks, which from that time infus�d
Sweetness into my heart, unfelt before,
And into all things from her Aire inspir�d
The spirit of love and amorous delight.
Shee disappeerd, and left me dark....)

Tu Quoque, Tacitus: Tacitus has a post here about why he�s not a Democrat. Okay, valid enough. But it doesn�t come close to explaining why he�s a Republican.

Reason 1: I don�t trust the Democrats on national defense. Yet the first Bush Administration began the process of defense budget cuts which was continued during the Clinton Administration, and while the Republicans have, on the whole, a more clearsighted notion of foreign policy, we shouldn�t overlook the decades of selling out to the Soviets and the Chinese. Nixon recognized the PRC, and condoned the U.N.�s violation of its own charter by ejecting the Republic of China; he was the godfather of containment. Truman, whose Berlin Airlift was one of the three great �no�s we said to the Soviet Union, and Kennedy, whose policy during the Cuban Missile Crisis was the second �no,� were both Democrats. (The third was Reagan�s �tear down this wall� speech.) So while I think modern Republicans are, on the whole, preferable, the current war is not being very well run, and the Democrats have at least a pretty decent record, comparatively. Finally, in the current crisis, the Republican Administration has not delegitimized Arafat, but has instead forced the Israelis (again!) into deadly compromise with the Palestinian terror state.

Reason 2: I don�t trust the Democrats on the Federal budget and big government. And the Republicans? Have you seen the federal budget recently? The 70 percent increase in farm subsidies? The steel tariffs? Where, exactly, is government being cut? Even during the Reagan administration, the size of the welfare state tripled. We�ve got a piddly little tax cut now, but what offices are being eliminated? What bureaucracies are losing their power? Where is there any rollback of government? At least when Clinton was in power, his big-government craziness could be stopped by the Republican Congress, but now that a Republican president is in power, every time he calls for (um, let�s see, what was it that Bush said, again?)�

�400 billion over the next decade to reform and strengthen Medicare�$1.2 billion in research funding so that America can lead the world in developing clean, hydrogen-powered automobiles�a $450-million initiative to bring mentors to more than a million disadvantaged junior high students�a new $600-million program to help an additional 300,000 Americans receive treatment�$15 billion over the next five years, including nearly $10 billion in new money, to turn the tide against AIDS�almost $6 billion to quickly make available effective vaccines and treatments�.�

I sha�n�t belabor the point. Wake me up when we get to small government.

Reason 3: The Democrats are not committed to the values of the American Founders as enumerated in the Constitution and the Declaration of Independence. And the Republicans are? These Republicans who are exploiting the same old Commerce Clause trick in their abortion bill? These Republicans who believe that the state should tell us whom we may sleep with; that the state should force us to pray; that the state may tell us what we may imbibe? These Republicans who have denounced the Declaration of Independence as a �grandiloquent declamation[] of the moment�? Who have denounced Thomas Jefferson and Abraham Lincoln?

Are there perhaps two Republican Parties, and I�m looking at the wrong one?

Reason 4: The role of religion in public life. Ah, yes, well Republicans do tend to be better at wrapping themselves in the Bible. Of course, their attitude towards other religions tend to be questionable. The Catholic domination of, say, National Review, ought to raise some questions among the Mormons. Their contempt for, say, the Unitarian church is also rather curious. They scorn the religions of Indian tribes or Wiccans, or other groups that they don�t like�indeed, even Tacitus laughs at �mushy �mainline� Protestants.� Fair enough�Tacitus should be hot or cold, but not lukewarm�but keep in mind that when Republicans talk about the �role of religion,� they mean their religion. As long as you�re in the biggest group, then I suppose that�s pretty safe. But the whole reason for the separation of church and state is to prevent the state from ordering us into an orthodoxy. And that�s because, if you want to go around ordering people to obey your orthodoxy, you run the risk that you may wake up one day to find out that you�re in the minority, and someone else is going to enforce theirs on you. Finally, a hefty portion of the Republicans don�t seem to really believe the religious views they espouse; they seem to care only for the way it works as a social glue. That should at least make one curious.

Reason 5: Regional prejudices. Tacitus says that as a matter of temperament, he tends to like the sort of rural lifestyle more popular among Republicans, rather than the urban lifestyle of Democrats. That�s fine. Me too, actually. But Tacitus himself acknowledges that this is a gross generalization.

A.C.S. blog: I�m tempted to set up an A.C.S. Blog-watch to critique the posts over there, but I fear that a) it would be too easy, and b) it would be boring to �bandy words with a fool.� (You get five points if you can tell me where that quote comes from.) This post, for instance, critiques the �New Federalism,� (I myself was rather fond of the old federalism�) on the grounds that �The Court had no problem with a state punishing a guy with life in prison for stealing a handful of children�s videos or a few golf clubs (Ewing v. California; Lockyer v. Andrade), but, just a month later, it said a state had gone over the constitutional line in punishing a corporation by making it pay what the Court considered were excessive punitive damages (State Farm v. Campbell).�

But Scalia and Thomas (and Ginsburg) dissented in Campbell! It was the moderates who switched over on that one. The consistent federalists would have had no objection to the damages award in that case. Second, it�s juvenile to dismiss Andrade as saying that life in prison was the punishment for �for stealing a handful of children�s videos.� Three Strikes does not punish stealing children�s videos. Three strikes punishes recidivism. The conviction giving rise to the life sentence came when Andrade stole $84.70 worth of videos, then two weeks later stole $68.84 more worth of videos. He had been convicted in 1982 of misdemeanor theft, then later that year, he was convicted again, of multiple counts of burglary. In 1988 he was convicted of drug possession. In 1990 he was convicted of petty theft again. In 1990 he was convicted of drug possession again. In 1991 he was arrested for escaping from prison. This is why he received life in prison. Now, if you think Three Strikes is bad policy, or if you think that it violates the Double Jeopardy Clause or the Eighth Amendment, then good�you can make a decent argument for that. But let�s at least describe the law accurately before we criticize it, eh?

Further, Federalism does not hold that states are unconstrained; it holds that the states are only constrained by the constraints that are actually in the Constitution, and then in particular cases, the question becomes whether there is a constraint and whether it applies. In Campbell, the question was whether the Due Process Clause places such a constraint on the states, and the Court said yes. In Ewing and Andrade the question was whether the Eighth Amendment constrains the states from applying Three Strikes. The Court said the answer was no. In none of these cases did the Court say that the Constitution places no constraints on state power. Indeed, the Court continues to strike down numerous state laws, like the California Open Primary, or the visitation law in Troxel.

Finally, there appears to be an inconsistency in the first two sentences of the post: first the �New Federalism� is wrong because it �lacks constraints.� Then suddenly it applies constraints inconsistently. Well, how can it apply them inconsistently if it holds that there are none to begin with? But perhaps this was just a misstatement.

Maybe one�s cynicism is the result of misunderstanding and erroneously analyzing Supreme Court decisions.

Let me just say this: Best issue of GQ ever.

Liberal Limbaugh: You know why there isn�t a liberal version of Rush out there? It�s partly because liberalism of the sensitivity variety is terrified of humor, lest it wound the sensibilities of one of their indiscreet and secular minorities, but I think it�s another thing, too. Namely, the left is now the Establishment. They don�t like to admit that�heavens, no�but they are. And talk radio is largely about rebellion against the Establishment. That�s what it was in the olden days, and that�s what it is now. There are some college stations, of course, that still try to pretend that the left is about opposing �the machine� or whatever, but in reality, the bureaucratic, government-controlled polity is here, thanks to the left, and the only thing the left can come up with is to say now is �we want even more!� It�s the pro-freedom crowd that�s the radicals, now. The liberals object to the innovations we�ve devised, like school choice, or eliminating various restrictions on the market, because, why, my goodness, if people ran their own lives, they might not do it right!

The left is a bunch of bureaucrats, now. They�re not liberals; they�re conservatives, as conservative as any 1950s IBM cog ever was. That�s why it sounds so ludicrous for someone like Bill Clinton to say �the era of big government is over.� We knew he didn�t mean it. We knew that he was pro-status quo all the way. And so are the rest of �em. Their answer for everything is the boring old 1890s answer, of government, government, government. I mean, look at Michael Kinsley�s column about the Nevada v. Hibbs decision. Why is he so upset? Because of what he sees as �activism� on the Supreme Court. Why, everything was so easy in the New Deal, because government could do everything, but those awful innovators, coming in and changing stuff�dern kids today, just don�t know what they�re doin��

It�s actually pretty sad. Liberals can say �we have met The Man, and he is us.� They�re as terrified of the dynamic, unregulated, free future as any Republican. And that just doesn�t make for exciting, protest radio.

Huh?: This post at A.C.S. by someone infringing on my natural copyright to my initials (just kidding!) makes very little sense to me. Of course, the person �admit[s] to being the farthest thing from a Constitutional scholar,� so perhaps we should cut him some slack, but let�s point out a couple mistakes.

First, federalism does not mean that since �the Constitution envisions a limited federal Government [therefore] the powers granted to the federal government were supposed to be only those that a centralized federal government would actually need.� It�s true that the Constitution creates a limited federal government, but it does so by saying quite explicitly that the Congress has only those �legislative powers herein granted.� (Art I � 1, emphasis added). Now, Art. I � 8 lays out those powers, and one of those powers is �To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.�

Now, TS goes on to assume that the Commerce Clause gives Congress the power �to solve inequities and inconsistencies among the several states[.]� But this assumes the point in question; namely, whether or not the term �to regulate� means Congress may �solve inequities.� (Shouldn�t that be �iniquities�? Whatever.) The point is that the debate over the Commerce Clause is not about, for instance, the political desirability of, say, civil rights legislation, which, with some (wrong) exceptions, constitutional scholars concede is both desirable and�in some way�constitutional. The debate over the Commerce Clause is whether the power �to regulate Commerce�among the several States� means that Congress may enact legislation prohibiting wholly intrastate, noneconomic, criminal conduct. In order to answer that question, we then have to rely on our theories�what are the proper methods of interpreting the Constitution? Those who think that it should be interpreted by reference to the intent of its framers will answer one way; those who believe that the Constitution is a �living document� that means whatever the �general will� (or whathaveyou) says it means, will answer another way; other constitutional-interpretation methods might answer other ways, and some of these theories will arrive at the same conclusions. But we get nowhere by assuming the very question at issue.

I�d address the rest of the post except that I don�t understand it.

Democrats and civil liberties: Good post by Juan Non-Volokh on the Democrats� record on the civil liberties that they supposedly defend. He points to the Clinton record on civil liberties, which reminds me of the �Rule of Law in the Wake of Clinton� event I went to a couple years ago. At that event, Nadine Strossen, president of the ACLU, said that �as far as civil liberties are concerned, Bill Clinton is the worst president in the history of the United States.� (That�s a quote from memory, but I�m certain it�s accurate, since it made quite an impression on me that she said it.) Of course, she also said that economic liberties and civil rights are the same thing and that they go hand in hand. The audience was so stunned at that point that Roger Pilon stepped to the mike and said �You heard it here first, folks, from the head of the ACLU.�

Well, what they sez and what they does is two differnt things.

Questions for Objectivists: I�m falling behind, but I�m trying not to lose track entirely. Let�s see; today�s question, picked more or less at random, will be

�what is productivity? It�s one of the Objectivist virtues; does it mean producing things other people want? That seems way too dependent on other people�s value judgments�only popular architects would be productive under that definition. Does it mean producing anything that makes a rational person happy? Could a rational person be happy cutting out little circles of paper all day long? Pouring water over his head in a stream? Taxidermy? Which activities are productive, and why?�

Boy, that�s an interesting question. I think somewhere else on the Questions site, Tushnet asked whether John Galt would have been as impressive if he had run the Johnny�s Waterslide Park in Fort Lee, Alabama, rather than being a wonderful inventor. The answer to that is absolutely yes, if it were real life, although for purposes of dramatic literature, Galt works better as an engineer, obviously. Rand was asked during an interview�which unfortunately, I lent to Don, and forgot to take with me when I visited him a couple months ago�about the question of rationality. If I remember rightly, the interviewer asked, well, what about janitors or sewer workers or something? Rand�s response, which makes sense to me, was that if you�re a janitor, your virtue lies in being the best janitor you can be. And if your mind is capable of more than that, then you won�t be satisfied staying at the level of a janitor. It�s hard work being a janitor, and I think most Objectivists would be far, far happier in the company of a competent, hardworking janitor, than in the company of most of the supposed greats of our academy.

There�s a lunch place here in Placerville called the Old Town Grill, run by John Sanders, a former caterer for many very big names in the entertainment industry. As I understand, he retired from that job, and now runs his little lunch place�open only three hours a day�for the joy of it. He makes the best hamburgers you can imagine; truly gourmet level, and it reminds me of nothing so much as the scene in Atlas Shrugged, where Hugh Akston is flipping burgers in the little diner. That�s certainly productivity.

But what about something that might seem pointless? Well, I don�t rightly know. In �What is Capitalism?� Rand defines production as �the application of reason to the problem of survival.� That�s a pretty broad definition, but it does exclude totally pointless behavior, like pouring water from one glass into another and back again. But entertainment or enjoyment is part of survival, so what might seem like a pointless thing�waterparks, for instance�would still qualify. I think one of the benefits of the market is that it tends to discover productivity (as well as to generate it). If people have a need, satisfying that need is productive.

What about irrational needs, though? What if we have a truly free society, where you are free to rot your brain on LSD if you want to�would an Objectivist produce LSD? Or porn? I don�t know. I know that I wouldn�t. I think doing so would be, shall we say, ungentlemanly. But here, I think we run into the second part of the question above, which is, do we produce just to satisfy other people�s wants and needs? I don�t think so. I think the Objectivist view is that we produce because we believe in the production; Howard Roark says he doesn�t build in order to have clients; he has clients in order to build. Others have laughed at that line as being unrealistic, but I didn�t think so then, and I definitely don�t think so now. If I didn�t do public interest law, I wouldn�t do law at all. I�m just not interested. When Roark goes to work in the granite quarry, rather than to do something he doesn�t love, I find that quite believable. Now, there might be times when you do menial labor in order to later do stuff you believe in�you know, like doing oppositions to demurrers so that you can eventually get to writing the briefs on the merits�but you do these things because there is that spark in you that believes in what you are producing, and relishes the production of it.

I�ve worked in menial jobs before, and I absolutely hated it. It caused me to suffer genuine depression, to a degree I don�t feel comfortable disclosing. But in my current work, because I really believe in it, and love doing it�I don�t do it for other people. I do it because I love doing it. My job happens to be largely about other people, so they become instrumental to that task, and many people would probably consider my work �selfless��a term which would quite offend me if I didn�t know that people don�t really understand that word the way I do. But I do the work because I love the work, not because I want to please others.

Again, working at McDonald�s in high school or something�that is not irrational or worthy of scorn at all. That�s honest and decent labor, and very hard, I might add. But even a virtuous McDonald�s employee doesn�t work for the �food, folks and fun.� He works because he needs the money for other things, for future advancement�or because he actually enjoys that job. That is absolutely fine, and indeed praiseworthy in the Objectivist view.

I think a far more intriguing question, though, is �Why does Howard Roark take a salary? If he loves his job so much, and his reward is the work, and he�d work as a day laborer before he�d compromise on it, then why bother getting paid? Payment, after all, suggests that he would not otherwise do this work.� Although I�m not seriously suggesting that it is contrary to Objectivism to be paid for your work�obviously it isn�t�I�ve never heard this question seriously discussed, and I�m not ready to formulate a possible answer for it. But I would be interested in folks� opinions�if anyone ever read this darn blog�.

Okay, that�s enough for now. I�m gonna go mash on that cute girl at the coffee shop.

State bailout: This is a good article on the question of whether the federal government should give a bunch of money to the states to make up for the states� budget shortfalls. As my friend Chris Atkins at the American Legislative Exchange Council is fond of pointing out, states would not be in any sort of fiscal mess if they hadn�t started paying people billions of dollars not to work. The states are actually flush with money�but they went on a spending spree of fabled Drunken Sailor proportions so that they ended up in the red during the 90s�a decade during which everyone else ended up in the black. California, of course, was one of the chief lemmings that lept from that cliff, and now when the disaster is upon us, what is the legislature�s recommendation? More taxes! No spending cuts!

Thomas Jefferson wrote a wonderful letter in 1816, commenting on this phenomenon. He wrote,

We must make our election between economy and liberty, or profusion and servitude. If we run into such debts, as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expenses; and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow sufferers.

Simpsons squared: More on the intellectual seriousness of the Simpsons; thanks to No Left Turns.

�Bigotry�?: There�s been a little tombloggery already about this article on anti-Republican �bigotry,� and whether it�s right to call it that.

It�s true that this is common and bad; it�s worse for libertarians, believe me. But I do not think it proper to refer to it as bigotry. Ignorant, yes, and small-minded, and deeply revolting. But it�s not bigoted. Bigotry means to reject a person unreasonably on the basis of something for which that person cannot reasonably be blamed. To say �I will not date a black woman� or �I won�t date a white man� is bigoted�and quite common, sad to say. To say �I won�t date a Republican� is not bigoted, because it is not something beyond the person�s control.

To take an example, I personally have an emphatic distaste for Catholicism. Although many of my best friends are members of the Catholic church, I do not believe that I could have a romantic relationship with a devout Catholic. That�s not bigotry�it�s recognition that our world-views�something over which we do have control�simply do not mesh. I can even blame someone for his or her opinions; I can even assert (as I sometimes do) that a person�s political views are morally repugnant, and that only a morally bad person would adopt such views. This isn�t bigotry, because the person can change those views. The same is true of Catholicism or membership in the Republican party. The person has chosen to adopt a faith, which I find offensive and wrong. It therefore makes no more sense to call my attitude �bigoted� than it would be �bigoted� to say �I won�t date a child molester� or �I won�t date a bad driver� or �I won�t date a person who makes under $10,000 a year.� Any or all of these things may be wrong for some other reason�and being rude and getting up and just leaving someone in the restaurant is entirely without class�but it�s not bigotry, rightly speaking.

Now, the author, Willy Stern, anticipates this argument, but dismisses it as a �rather clever definitional contortion[.]� I don�t think so at all. He writes, �I didn't choose to be a Republican any more than I chose to be a Jew. My family has been Republican (and Jewish) for several generations. Being a Republican is part and parcel of how I was raised and of who I am.� That�s a really startling statement, in my opinion. He�s a member of a political party because he was born into it? He didn�t bother to think about his political views, but simply imbibed them, and is incapable of changing them? I don�t think so; rather, I think that this assertion of �identity� reflects an unwillingness to seriously weigh his political views and think them through. To wrap oneself in a refusal to think about things and call it �identity� is not honorable or respectable, and it deserves to be scorned. Such scorn, I�m sure, could be dismissed as �bigotry,� but you see, that�s just the problem.

Political identity is not born, it is available for people to choose, and we expect and need for them to examine and choose and reject and accept various political opinions; that�s what the �marketplace of ideas� is all about! Yet if Catholics can insulate themselves from the assertion that, say, their theology is authoritarian and hierarchical to a degree inconsistent with Jesus� actual teachings, by saying �Why, you�re just a bigot! Don�t criticize my views! I didn�t choose them! I was born this way!��well, then, what�s the point of any conversation at all?

There are, unfortunately, many very small, very petty, and very stupid people who do not know (among much else) that there is a world outside of the Democrat-Republican polarity; who do not see how petty and superficial the differences between those two parties is in the first place, and who dismiss all Republicans on the grounds of the words of some of their more revolting exponents, or who dismiss all Democrats on the grounds of the deeds of some of their more revolting Presidents. There are morons who say that Republicans are all a bunch of segregationists, and that Democrats are all emotionalists, or that libertarians are all pedophiles or gays or fond of bestiality, or whatever. Such people are superficial and not much worth knowing�although they might be worth saving!�but they are not bigots, if that word is to retain the significance it deserves to retain.

Fame!: Thanks to Zonitics for the link.

Who first?: Jane Galt asks if others have heard of the unspoken rule that the man should never be first to say �I love you.� Yes, I have, often, and I think it�s probably right. I�ve broken it on occasion, and the result has been disaster every time. I will, however, continue to break it. Why? you ask. Because it�s a stupid rule, and if girls follow it, then too bad for them. Thus, like the Underground Man, I will break this rule, knowing that the results will be disastrous, if only to assert my freedom from stupid rules.

Curmudgeon goes medieval on their asses: You see, this is why blogs are dangerous. Because people like Curmudgeonly (or �Curmy,� as Miss Piggy would say), and if I may be so bold, myself, are way too educated for our own good. We can sit up at two o�clock in the morning to set the record straight on the Crusades, knowing all the time that nobody at Salon is ever going to print a�let�s see�a 1,000 word correction about the twelfth century and the Christian-Muslim conflict, complete with blue-booked citations!

Just for that, Curmy, you get blogrolled.

Running late: I�ve been reading Jack Greenberg�s Crusaders in The Courts. He mentions that when he argued one of the several cases we now know as Brown v. Board of Education, in the Supreme Court of the United States, he was 27 years old.

I�m running late.

And if you want to know how late you�re running, check out this helpful site.

Dating: What can you say, but....yep.

Spanish Civil War: Sasha Volokh has some interesting observations about the Spanish Civil War. I know relatively little about the War, but I find it intriguing how profound an effect it had on the intellectual class at the time. Their profound sense of disillusionment is everywhere in the writing of that era. Jacob Bronowski is the particular example I�m thinking of. Just about everyone you talk to says he was a communist, or at least a socialist, largely under the influence of his mother, who was a communist from early on, and helped in miner�s strikes and whatnot. And while some of his writings, particularly the book on William Blake, sound sympathetic to socialism, they aren�t entirely�and later interviews and comments reveal that he had completely rejected socialism, even if he wasn�t any sort of libertarian. I suspect that what made the difference was the Spanish Civil War, about which Bronowski wrote a short and disillusioned book called Spain 1939: Four Poems. Seeing socialism end up hopelessly tangled in the face of fascist opposition�and seeing the Soviet Union manipulate the whole situation for its own political benefit, regardless of the benefit of the working classes�was very frustrating to the �decent� intellectuals who made up the socialist base in the 1930s. Of course, they did little to expose the crimes of Stalin. But in the case of some of them, I wonder if they even knew. There are those who, as Hitchens writes in that article I mentioned earlier, are so wrapped up in the personality of their leader, that they never hear what is really going on.

Hitchens: A particularly good article by Christopher Hitchens. (Saw it on Hit & Run.)

Reasonable humor: This blog, which I found via the V.C., addresses the question of what makes things funny. I�ve always found that a fascinating question. �I think we like to have our minds stimulated in interesting ways. We like to have to make or recognize a clever association. We like to be surprised; to have to switch contexts to see things in a new way.�

This is quite insightful. I�ve thought about this subject a lot, inspired by a footnote reference to a book by Arthur Koestler, but I�ve not read the book, and can�t for the life of me remember which it was. All I can recall off-hand are my reflections on what I did read.

First, I think that all humor can be reduced into three categories; absurdity (the largest); irony, and parody. The difference between irony and parody is that irony is found, not created�as the famous street sign that pointed to the city of Clinton one way, the town of Prosperity the other way�this is a naturally occurring incident which is amusing because of the context that we bring to it. Another example of irony would be the rich-lady-in-furs-stepping-on-the-banana-peel type of humor, which I�ve never found particularly amusing. Parody is created irony�it is parroting something in order to point up certain aspects of it for amusement. Absurdity includes most jokes, but is probably best exemplified by the Airplane! and Naked Gun films.

All these categories include this element of �context switching.� They work by stringing the mind of the �audience� along in a certain direction, then suddenly shifting the focus to a conclusion which one does not expect�but which, in retrospect, is in some way, logical. This accounts for the popularity of what comedians call �the triple,� where the audience is given two seemingly consistent elements, and then the third element capitalizes on the sequence that�s been set before�the jokesabout the Priest, the Pastor, and the Rabbi, for instance, are just not funny if they�re only reduced to the Priest and the Rabbi. I suspect that these give us elemental pleasure because our minds are machines for interpreting and discovering patterns and logical conclusions. Children will laugh when you do simple tasks and that produce consistent results (�Do it again, Daddy!�), and I think it�s the same feeling, essentially: we take pleasure in working our minds, so that a joke is like a mind-sport, just like chess; it exercises the muscle of pattern-recognition, and we have evolved to prefer pattern-recognizing (and those who do it) to the failure-to-get-it.

Self- or cross-referential humor, which is immensely popular in large part thanks to the Simpsons, is a reflection of this, also. We appreciate jokes that cause us to refer back to some other thing, and the more obscure, the better. Here, we find the juncture of absurdity and parody; we enjoy recognizing something that we know, but placed in a crazy context, like a musical version of Streetcar Named Desire. And this accounts for the relative respect that we endow on varieties of humor. Pure absurdity, of the zany, slapstick type, is considered �low-brow� humor, and, really, isn�t all that funny compared to the type of absurdity represented by Airplane!�which is made up in large part of puns, or absurd repetitions. (�I just wanted you to know; we�re all counting on you.�) Above that are high-brow comedies of manners like Fraser, or even parts of the Simpsons, which require a pretty good education even to �get.� We have scales of humor that are based, in large part, on the degree to which they tax the thinking software. But all of them, to an increasing degree of complexity, require pattern-recognition, the obvious evolutionary value of which indicates a biological basis for it.

So let�s pick a joke at random from Comedy Central�s random joke generator. The results are�remarkably unfunny. But it�ll do for a demonstration.

�A very sick man is in the hospital, and on many drugs which give him bowel problems. After many false alarms, he accidentally craps himself. Very embarrassed, he balls up the sheets and throws them out the window, where a drunk is staggering on the way home. The drunk starts flailing at the sheets, throwing his arms around wildly. A security officer runs over, hearing the commotion.

��What�s going on here?�

�I don�t know, officer. But I think I just beat the crap out of a ghost.��

Now, this joke works because the audience recognizes the connection of crap-ghosts-sheets, because ghosts wear sheets. As soon as the audience �gets� the joke�by completing the pattern and then reflecting on the �logic� of that pattern�we get that �hey, it works!� response, which is laughter.

But that being said, let it always be remembered that the best way to make humor un-funny is to explain it, and especially using terms like �evolutionary value.�

ACS� name: Here�s one reason why naming themselves �The Madison Society� would have been hilariously inappropriate:

�I should fairly own...that if [the people accept expansive, non-textual readings of the Constitution, specifically M�Colloch], I shall consider the fundamental and characteristic principle of the government as subverted. It will no longer be a government possessing special powes taken from the general mass, but one possessing the general mass, with special powers reserved out of it. And this change will take place in defiance of the true and universal construction, and of the sense in which the instrument is known to have been proposed, advocated, and ratified. Whether the people of this country will submit to a Constitution not established by themselves, but imposed on them by their rulers is a problem to be solved by the event alone.� (Letter from James Madison to Henry Lee, Jan. 21, 1792).

Lopez: Well, this is an old debate, but I see that Greg Goelzhauser, who was kind enough to add a link to this page a while back, has a post on the American Constitution Society�s website regarding Justice Thomas� concurrence in Lopez. Goelzhauser scoffs at the Lopez concurrence on the grounds that Thomas doesn�t seriously confront the issues he raises: �Thomas espoused his view of how the commerce clause should be properly interpreted: �At the time the original Constitution was ratified, �commerce� consisted of selling, buying, and bartering, as well as transporting for these purposes.� Oh, you wanted more? Too bad. Justice Thomas tells you why there is no need for further analysis of how to interpret the commerce clause in the modern world: ��interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems.��

But Justice Thomas does give a thorough analysis in Lopez. To begin with, he joined in the majority opinion; then he added, as a separate concurrence, some further comments about the definition of the term �commerce� as used in the Constitution, which in Justice Thomas� view, should be interpreted by asking what the framers meant when they wrote that term. His concurrence occupies 18 pages of the U.S. Reports, thoroughly documenting the framers� meaning of the term. Moreover, Thomas did explain the significant textural and structural problems caused by the expansive reading of the Commerce Clause, including, for instance, that it would swallow up all of the other grants of power in Art. I � 8, and that it would confer a general police power on the Congress which is entirely inconsistent with the limited nature of federal power under Art. I � 1.

Now, Goelzhauser�s saying that Thomas didn�t explain how to apply the concept in the �modern� world, but as Thomas explained, the Lopez concurrence was written solely �to observe that our case law has drifted far from the original understanding of the Commerce Clause.� The question of whether we should rely on the framers� views when interpreting the Constitution that they wrote is a much more complicated question, better left to the law reviews, where, indeed, Justice Thomas and his supporters have made that argument quite thoroughly.

Finally, Thomas explained that �This extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions. It simply reveals that our substantial effects test is far removed from both the Constitution and from our early case law and that the Court�s opinion should not be viewed as �radical� or another �wrong turn� that must be corrected in the future. The analysis also suggests that we ought to temper our Commerce Clause jurisprudence.� And in footnote 8 he added that �Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.� (And one might also add that others have skimped a bit on implications in their opinions, too: Justice Brennan hardly explained how to apply the so-called �test� of Penn Central.)

It is exceedingly disappointing that those who should know better continue to characterize Justice Thomas� opinions as somehow thoughtless or lacking in serious analysis. If one objects to original intent jurisprudence, fine; but it�s unreasonable to expect a thorough defense of originalism in an opinion devoted solely to analyzing what the original view of one particular clause was, and not devoted to the much more involved question of whether originalism should matter in the first place. When you add that Thomas explicitly stated that he was concerned solely with the former�which is entirely legitimate for a concurring opinion�and that he joined in the majority opinion, which, along with Morrison, do provide an explanation for applying the commerce clause�s limitations in the �modern� world, then the criticism goes beyond unreasonable and into unfair.

Yet Goelzhauser writes that Thomas� view is �detached from reality, rigid, and too extreme to garner even one joining vote from another member of the conservative bloc.� These are facile characterizations that themselves lack any substantive analysis or support. In what way is it �detached from reality� to hold that the power to �regulate Commerce...among the several States� means actual commercial activity, and does not apply to, for instance, wholly intrastate, noncommercial criminal conduct? Goelzhauser provides no examples, so I shall, in order that I not be accused of being detached from reality.

In 1998, James McFarland robbed four convenience stores in Ft. Worth, Texas, netting a bit over $2000. His crimes were punishable by about five years in prison under Texas law. But he wasn�t charged under Texas law. He was charged under the Hobbs Act, 18 U.S.C. � 1951, which makes it a crime to commit a robbery that �in any way or degree...affect[s] commerce Well, none of the stores he robbed served customers from out of state, purchased supplies from out of state, or even had accounts in out-of-state banks. Nevertheless, the prosecution argued that if such robberies occurred elsewhere in greater numbers, that would affect interstate commerce (the so-called �aggregation� principle from Wickard v. Filburn.) McFarland was convicted, and he appealed to the Fifth Circuit, which convened en banc (for a second time) to consider whether Lopez (and Morrison) allowed the government to use the Wickard �aggregation principle� in criminal cases. Unfortunately, the Circuit en banc affirmed by an equally divided court, and in April, despite my brilliant amicus brief, the Supreme Court denied cert. The �real world� consequence? Mr. McFarland will spend 97 1/2 consecutive years in federal prison.

This is the real world; not the world of �aggregation� and �substantial effects;� the real world is a world of power, and in that real world, Congress has used the commerce clause in a way it was never intended, by either the framers or the generation who ratified it, to give the federal government a vast sweep of power to regulate practically everything. See further Arthur B. Mark, III, United States v. Morrison, The Commerce Clause and the Substantial Effects Test: No Substantial Limit on Federal Power, 34 Creighton L. Rev. 675 (2001).

To everyday Americans both today, and in the framers� generation, the distinction between the power to �regulate Commerce...among the several States� on one hand, and the power to regulate wholly intrastate, noneconomic conduct on the other, would not appear �fuzzy.� Yes, defining it exactly will be hard�just as defining absolutely everything in the law is hard, even �murder� or �a human being� or �chicken��but there is a difference, and there must be realistic limits on the federal government�s commerce power. One very useful mechanism for understanding those limits is to undertake the thorough analysis of the framers� views on the subject, so that if we decide to reject it, it will at least be clear that we are rejecting the views of the framers of the document after which the A.C.S. names itself without apparent irony.

(Actually, they were going to be the �Madison Society,� till they found that that name was already taken by people who believe that the Second Amendment forbids the government from infringing on the right to keep and bear arms�an �extreme� position, no doubt, which can�t work in the �modern� world. I wish they�d kept the old name, though; the irony would have been complete, then. But, you know, Madison was a slaveholder. �That�s not a part of the legacy we embrace,� said [A.C.S. Founder Peter J.] Rubin.�� Phew! That�s a relief, eh?)

As Prof. Ralph Whitten notes,

�even writers who are obviously not attempting to base their constitutional theories on the original meaning...often feel compelled to use historical or quasi-historical rhetoric by, e.g., referring to the purposes of the Clause [in question], the objectives of the drafters, what Madison said, the intent of the framers, and so forth. It is interesting to speculate why they do this. My personal belief is that resort to the historical understanding of laws is a strong component of the rule of law in our legal system. At its simplest, lawmaking involves a direction or rule laid down by the present for the future. When the future arrives, whether it be a week or two centuries later, any coherent concept of the rule of law requires that the future try to obey the direction or rule laid down in the past, rather than inventing the rule it finds most convenient in the present. Thus, any attempt in the future to look at what the lawmaker was trying to accomplish when she created the law involves historical inquiry. Refusal to make this historical inquiry in good faith basically undermines the idea of law as we usually understand it. This is why, I believe, commentators who obviously do not wish to base their theories on history (otherwise they would do better history) feel compelled nevertheless to use historical rhetoric. The pull of history is an important legitimating force, separating the idea of law from that of mere politics, ideology, or raw force.�

Ralph U. Whitten, The Original Understanding of The Full Faith And Credit Clause And The Defense of Marriage, 32 Creighton L. Rev. 255, 393-394 (1998).

Now, I�m sympathetic to those who fear the return of limits on Congress� commerce authority. They fear for the 1964 Civil Rights Act and similar legislation. That�s a legitimate concern, and I believe that a revival of the legitimate limits on the commerce power must go hand in hand with a revival of Congressional power to protect civil rights, particularly under the privileges or immunities clause of the Fourteenth Amendment. But to criticize Thomas� view of the commerce clause as �too extreme� is really ludicrous. Have we really come to the point that saying �interstate commerce means commercial activity across state lines� can be characterized as �extreme�? You know, when I was young, the term �extreme� applied to people who strapped bombs to themselves in order to kill innocent civilians. Apparently, now, the notion that the Constitution only gives limited power to the federal government�the notion that �[t]he powers delegated by the...Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.... The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state��apparently that view is �too extreme�!

Oh, that�s right. The Federalist was written before 1937. It is therefore of absolutely no relevance.

Thomas for Chief?: That�s what Jay Nordlinger wants. Ain�t gonna happen. Justice Thomas doesn�t want it. He�s happy being an associate justice. Being chief adds no powers; it just makes you do all the administrative crap at the Court. It�s all liabilities, no assets�except the stripes, I guess�and Thomas has said he doesn�t want the extra work. Who would? No, I think the new Chief will be Kennedy.

Health crisis: I love this poster at Samizdata. It�s true: if handguns are a �public health� problem, then why isn�t the state�which has killed far, far more people than all street crime in America has? Government is among the leading causes of death for all ages, sexes, and races.

State action: You know, How Appealing better publish a disclaimer. He�s getting links from federal courts; he better be careful, lest he become so �entwined� that he becomes a state actor under the rationale of Brentwood Academy!

Flight fight: How is this possible, with our fine-toothed airline security system? What are they going to do now, confiscate all wooden sticks?

Bob Hope: Is 100 today. If you haven�t seen any of his old movies, check some out. His comedy really is great, and although we often see clips from his shows for the military, his films are also very funny.

Note for practitioners: Here�s a helpful pointer. If you�re lead counsel on a case, keep your amici apprised of the status of your case! When you file your brief, call them and tell them! And you might also mention if you actually are not the lead counsel on the case at all! In a case on which I recently drafted an amicus brief, the lead counsel did neither of these things.

Clerks and devils: So the other day I was suffering insomnia, and at 1:30 in the morning, while simultaneously conversing with two friends on the Instant Messenger, I tried to hash out a devil�s advocate defense of Judge Pregerson�s conscience. Although I thought the results were pretty shabby, I�m very honored that the Curmudgeonly Clerk thinks it was impressive. In return, I must say I think Clerk�s use of the word �supreme� does checkmate me; I had not considered this. A court is inferior precisely because it must follow the judicial version of the chain-of-command; a judge who prefers his conscience to the binding precedent of the higher court is arrogating his court above the level of an �inferior� court.

I had not heard of the Anastasoff case, and will read it as soon as I get a chance.

It�s true that an analysis of what the framers meant by the term �the judicial power� would have to be more thorough than reading Federalist 78, which, as I noted, is ambiguous on this issue. It would also have to take into account what the framers meant by �equity,� since the Federal Courts are given equity powers as well, and I�ve always thought of equity as involving some element of �conscience.� (Incidentally, we must constantly keep in mind that we are not primarily concerned with what the framers thought they were doing�we are primarily concerned with what the framers were doing; knowing what they thought they were doing is often quite useful in doing so, but as Harry Jaffa says somewhere, (I think in Original Intent), I am concerned with the framer�s views for no other reason than that they are true!)

But you know what I think is an even quicker answer to the devil�s argument? Simply that the judicial power is not merely the power of judgment: Lord Coke tells us that reason is the life of the law, but not every man�s private reason�it is an artificial perfection of reason, got by long study, experience, and tradition. (Don�t have the cite in front of me, sorry. It�s in Coke Upon Littleton somewhere near the front.)

I think that, with that thought in mind, we see how principle and effectiveness merge here. I pointed out earlier that for Judge Pregerson to just pout and say �Well, if I can�t win, I�m not going to play your stupid game (in part)� doesn�t help to advance his position at all; that if he does anything, he should have concurred in the result with an opinion saying �I concur because I have to under Andrade, but I think that case was wrongly decided, and here�s why�.� The whole mechanism of stare decisis is to create this artificial perfection of reason, and Judge Pregerson�s tantrum does nothing to advance this perfection of reason�and nothing to help the defendants he says he cares about.

Dropping my devil�s advocate mask entirely, I�ll say that I believe Andrade was correctly decided, that Three Strikes is both constitutional vis-�-vis the Sixth and Eighth Amendments, d effective. On the other hand, I am against mandatory sentencing in most other contexts�and do have doubts as to its constitutionality�and I think unpublished decisions are a terrible idea, and perhaps even illegal.

Loophole? Why bother?: I think folks are reading a bit too much into this Goedel's Last Theorem thing. The path to dictatorship through the loopholes of the Constitution was pointed out long ago by Tocqueville, and Franklin Roosevelt, whose Presidency was in full swing at the time of Goedel�s arrival, doubtless inspired Goedel�s observation.

Tocqueville writes that, no matter how hard you try, America cannot get past the tyranny of the majority. What's important about Tocqueville's analysis here is that we tend to say �well, the courts will resist the tyranny of the majority,� but Tocqueville points out that this is ultimately illusory. �In several states the judicial power was also submitted to the election of the majority and in all of them its existence was made to depend on the pleasure of the legislative authority, since the representatives were empowered annually to regulate the stipend of the judges.� Thus �the power of the majority in America [is] not only preponderant, but irresistible. The moral authority of the majority is partly based upon the notion that there is more intelligence and wisdom in a number of men united than in a single individual, and that the number of the legislators is more important than their quality.� Remind you of something? How about �deference�?

The majority controls the courts, not only directly, by regulating their jurisdiction, but indirectly, by regulating the opinions that are considered respectable. The Court Packing plan did not work directly�but we know what happened in the end. As Tocqueville writes, �I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states the government can, upon the demand of the two houses of the legislature, remove judges from their station. Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.�

I am not saying that unelected judges ought to rule our lives. I�m saying that the one peg on which we have always hung the �rights of the minority party� is the judiciary, which is controlled, eventually, by the elective branches. This, I think, is how it must be, ultimately, because, to again quote Tocqueville, �in the constitutions of all nations, of whatever kind they may be, a certain point exists at which the legislator must have recourse to the good sense and the virtue of his fellow citizens. This point is nearer and more prominent in republics, while it is more remote and more carefully concealed in monarchies; but it always exists somewhere. There is no country in which everything can be provided for by the laws, or in which political institutions can prove a substitute for common sense and public morality.�

Nothing can save us from ourselves. And when the Supreme Court gave in to the claims of the regulatory welfare state, despite the fact that it is blatantly unconstitutional, that decision was considered to be the very voice of the Constitution. And is not the result something barely distinguishable from dictatorship? So we elect our dictator�so what? So did the Greeks. So folks are oppressed by majority tyranny�by the faceless will of the mob, rather than the whims of a single Caligula�but this is a difference of form, not of substance. It did Myra Bradwell little good to say �Well, the legislature speaks for the people, and thus the people have decided to deprive you of your right to earn a living, and that is okay.� It does little good to the landowners of Lake Tahoe to say, �No, this is not a dictatorship; you�ve been deprived of your rights by the voice of the people, rather than the voice of a single man, so therefore you live in a free land, where your rights matter�but only insofar as you command a legislative majority.�

Clinton scandals: The Wall Street Journal has a long chronology of some of the Clinton Administration�s scandals. (Saw it on No Left Turns.) It reminds me of a day-long event I attended at the Cato Institute a few years ago, on �The Rule of Law in The Wake of Clinton,� (later, the presentations were published as a book). One speech was by Theodore Olson, who later became Solicitor General of the United States. His speech consisted only of reading headlines of Clinton scandals�nothing else; no commentary; just headlines. He was allotted fifteen minutes�and he did not get through the first year of the Clinton Administration before his time was up.

More on conscience: Great post from the Curmudgeonly Clerk on judicial conscience. I do not dissent, since I�m a lawyer, not a judge, so let me play Devil�s Advocate instead.

First, the Clerk makes a good point distinguishing discretion from conscience. Judges are given discretion within boundaries in order to allow them to tailor sentences to a particular case and defendant�precisely what Judge Pickering is being scrutinized for, come to think of it. But should we follow Clerk beyond the statement �The three-strikes law eliminates any discretion; a certain result is mandated. The Supreme Court has upheld this legislative mandate�? That seems to beg the question; if �the judicial power of the United States,� as exercised by a federal judge, includes the application of �conscience,� then mandatory sentences would also be unconstitutional, since the legislature would have no legitimate authority to restrict the judicial power, for separation of powers reasons, so we�d have to say that the Court�s upholding of such mandates is unjustified. Indeed, the �judicial power of the United States,� of course, is vested separately from those �legislative powers herein granted.� So it is arguable that the legislature has no authority to deprive the courts of judicial power�although they may, of course, regulate the jurisdiction. (We�ll leave aside Article I vs. Article III differences for now.) So if the judicial power of the United States includes the exercise of discretion, then the legislature has no power to deprive courts of that discretion, and the cases upholding the mandatory sentencing guidelines were wrongly decided, so judges ought to refuse to follow those decisions, too. In Federalist 78, again, Hamilton suggests that the nature of the judicial power includes �discretion,� including what we refer to as judicial review; this power is not given to the courts by the legislature, and cannot be controlled by the legislature. So the matter of legislative restrictions on the power of the courts is irrelevant, because if we conclude that �the judicial power of the United States� includes the exercise of conscience, then we would have to overrule the view that the Congress may impose mandatory sentencing guidelines or anything of that sort.

I think this view is supported by the issues surrounding Congress� power to regulate jurisdiction. That power is not unlimited, at least in theory. There�s the constant debate over whether Ex Parte McCardle, 7 Wall. (74 U.S.) 506 (1868), allows Congress to eliminate jurisdiction in cases based on some political ground�say, they want to just get rid of all abortion cases. Now, my view has always been that Congress does have absolute power to regulate the jurisdiction of all courts except the Supreme Court, because the judicial power of the United States is vested directly by the Constitution, only with the exceptions carved out by it. Cf. United States v. Klein, 13 Wall. (80 U.S.) 128, 147-148 (1871).

So the power of judgment is not conferred by the legislature and cannot therefore be taken away by the legislature; so it would follow that a judge is not wrong in exercising discretion without legislative permission. If the power of judgment includes the exercise of conscience, then it is not �extra-constitutional,� since the Constitution vests the courts with the judicial power of the United States; thus a �legally valid exercise of judicial discretion� is not defined as �that range of choices conferred upon the judges by statute.� Rather, it means�whatever is defined by �the judicial power.�

So we get back to our first question: the definition of judicial powers. (I think this is really the question�if we hold, as I do, that lawful judicial discretion means more than just �room to maneuver within the statutory scheme.� I might also ask what is �equity,� if legal discretion means maneuvering within a statutory scheme? Because the federal courts are given both legal and equitable powers; so is conscience a part of equity? Further, I think that the Clerk�s analogy to the military officer fails even worse than the judicial clerk analogy fails, since a military officer is an executive officer, and thus is supposed to see that the laws are faithfully executed. The question here is how one defines the judicial power of the United States. The power of a military officer is conferred upon him by the President, in whom the executive power is vested. The power of the court is conferred directly by the Constitution, not derived from Congress, or the states, or any intermediary institution.)

Interestingly enough, the Federalist is rather ambiguous on this. Judges are �interpreters of the law.� They must �declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.� And he concludes that

�independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which�sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.... [Although the people retain the natural right] to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.� [I]t would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.�

Is there no element of conscience involved here? This passage at least seems to refute the suggestion that �the judicial power of the United States� is only that power of discretion conferred within the boundaries of statutes. Hamilton goes further in the direction of conscience when he writes that �the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws�. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one�. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts�.� One might add to this that the early courts served as what Ralph Lerner calls schoolmasters�they gave charges to the jury, for example, on matters of republican theory, and the proper functions of government, which although primarily political, surely was intended to touch on the conscience of the nation. (See Ralph Lerner, The Supreme Court As Republican Schoolmaster, in The Thinking Revolutionary 91 (1987)).

Now, Hamilton concludes that to �avoid an arbitrary discretion�it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.� Perhaps this furnishes the conclusive part of the argument. Again, I�m playing devil�s advocate. I think Pregerson is wrong to simply ignore precedent, and, to make another structural argument, the judicial power is vested in the Supreme Court, so that lower courts have no authority to make decisions that are out of line with the Supreme Court, regardless of any of the other considerations we�ve been bantering about. I�ve only been stringing this along because, well, it�s 1:30 am, what else am I gonna do, sleep?

Watching: Just finished watching Orange County, on E.�s recommendation (from a long time ago). Pretty good.

Defining due process down: Hey, Greg Goelzhauser�you wanna bet? Consider what they can do to you without due process in New York, where the state can exercise eminent domain, and steal your house from you, with newspaper notice. If you don�t spot the ad in your neighborhood�s Newspaper Nobody Reads, and challenge the taking in 30 days�well, you�re screwed, pal.

Or how about Rhode Island, whose Supreme Court held that if there�s a regulation in place that takes away the full value of your property, but it�s been in place since before your bought that property�well, sorry, time�s up. You�re not allowed to challenge it. (Fortunately, the Supreme Court overturned that notice rule in Palazollo v. Rhode Island. Well, sorta. It still gets applied, but under different names.)

Or the �amortization� mechanism, where the state condemns your property, but only gradually, and gives you a certain amount of time during which you can continue to use your property, but then after that, they say you�ve �recovered your losses� and that that is your just compensation? Or Tahoe-Sierra v. Tahoe Regional Planning Agency, where the Supreme Court said that a series of �temporary� moratoria on all construction, which began in 1981, is only temporary, and therefore, does not constitute a taking under the Fifth Amendment, because, you know, it might get repealed�someday�.

Or how about here in Sacramento, where the city showed up at Mario Moreno�s building one day while he was inside, called him and told him he had a half hour to take all his stuff out, and then tore down his building while he watched�even though the city admitted that he�d been working diligently and in good faith to get it up to code? The district court sent him into the �Williamson County Trap,� (a special ring of hell designed just to preserve the regulatory welfare state) which says that your 42 USC 1983 claims for a violation of due process are �subsumed� by the Fifth Amendment, meaning you have to go to state court first. Of course, you�ll lose in state court�never mind that � 1983 was written to rescue civil rights plaintiffs from their state courts!�and then the federal court will say, �Oops, sorry, res judicata. You�re screwed, pal.�

Oh! Or how about the folks who get their homes stolen from them to hand over to the Nissan Corporation, or to General Motors, because, you know, �job creation,� that�s a public use, right? In Las Vegas, they steal people�s property in order to build strip clubs!�you know, the sort of thing that cities used to use eminent domain to eliminate? And then there�s occupational licensing, and the minimum wage, and the Davis-Bacon Act, which keep an unknowable number of people from earning an honest living, and in all of these cases the courts say �Oh, rational basis; we must defer to the legislature; the courts can do nothing;the majority wins; you, who are in the minority, who have no political power, who are not wealthy, who do not seek any government favor, but only the opportunity to earn an honest living by the sweat of your brow and the exertion of your ingenuity, without the state stopping you�you must go to the legislature, the very legislature which robbed you of your right to earn a living, and persuade them to vote to allow you, out of the grace of their own kind hearts, to let you work in your honest toil�? Or how about racial preferences by the government?

Think race relations are any better? What hearing did Cheryl Hopwood get when the University of Texas decided that she should have to pay the price of her ancestors� racism by giving up her seat in the law school? But at least you get strict scrutiny here, right? Well, Mr. Pech, you�re white.You can�t have this contracting job, even though you�re the lowest bidder, because your skin is the same color as the skin of folks who persecuted people whose skin color is the same as this other fellow�s skin color, so he gets the job, and you don�t. Sure, you can spend ten years in court over it, and get strict scrutiny at last, but in the end, the circuit court will just say �Um, yeah, this racial balancing thing, it passes strict scrutiny! Yeah, that�s the ticket!�

Yes, indeed, I�m sorry to say; the state can whack you pretty good without giving you a hearing. And all too often, the courts do nothing about it.

Summertime�s tough cases: Well...it�s that time of year again.... THOMAS, J., announced the judgment of the Court and delivered an opinion, which was joined by REHNQUIST, C. J., in full, by O'CONNOR, J., as to Parts I and II-A, and by SCALIA, J., as to Parts I and II. SOUTER, J., delivered an opinion, Part II of which was for the Court and was joined by STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., and Part I of which concurred in the judgment and was joined by BREYER, J. SCALIA, J., filed an opinion concurring in part in the judgment. STEVENS, J., filed an opinion concurring in part and dissenting in part. KENNEDY, J., filed an opinion concurring in part and dissenting in part, which was joined by STEVENS, J., in full and by GINSBURG, J., as to Parts II and III. GINSBURG, J., filed an opinion concurring in part and dissenting in part.

Bible and death penalty: I saw this story a few days ago, and I am very troubled by it. The court apparently threw out the death penalty finding on the grounds that the jury had referred to the Bible in their deliberations. I think the question has to turn on precisely what the jurors used the Bible for. If the jurors used it as if it were applicable precedent or statutory law, that would be improper since, as some have pointed out, the Bible is not binding law in Colorado. On the other hand, suppose one juror said he wouldn�t vote for the death penalty for religious reasons, and the others used the Bible to talk him into voting for death. I would not have a problem with that. If it�s acceptable for a juror to rely on his moral judgment in deciding on a penalty, then I don�t understand why he may not use props for his moral judgment as well. A juror can�t be rejected for having (let�s hypothesize) memorized the entire text of the Bible; so the Bible per se shouldn�t be grounds for disqualification. But a juror is not supposed to apply anything but the actual law to the actual facts, so applying the Bible as if it were law would be improper. See the distinction?

Now, the CNN report says that �Some jurors told the judge they had referred to a passage reading, �If a person does not ask for mercy, they may not be granted mercy,� suggesting that the suspect never asked for mercy because he didn�t take the stand.� That sounds to me as if the jurors were applying it like law, rather than using it to bolster their consciences to apply the law to the facts. If that�s the case, then, yes, that sounds like error. But using the Bible is not per se error. It�s undeniably a part of our legal system, even if it is not binding law. For example, here�s an excerpt from a closing argument in a murder trial from the 1950s:

�Most of the laws that have been written into law came from the basic precepts st down by God himself in Heaven, and those laws have been written lovingly and painstakingly, through the hundreds of years, until such time as they now have evolved down to the point where we have the best Government in the world�. To make this government work and assure a fair trial is why you twelve men have been called from your homes and your work to come to this court room to come and sit on this jury�.�

That�s Thurgood Marshall, attorney for the defendants in Florida v. Irvin, 1952.

Fame: Thanks to the Curmudgeonly Clerk for the link, in a very cogent and thoughtful post. Curmudgeonly Clerk writes that �when their conscience counsels other than adherence to obviously binding precedent[,] they must disregard their personal preferences or contrary interpretations and hew to precedent. If we are a nation of laws and not of men, then inferior tribunals must obey superior ones.� I think that�s right, and one might also note that it�s a lot more effective than simply refusing to adhere to precedent. If a judge writes an opinion that says �I am compelled by Suchandsuch v. Soandso, but I shouldn�t be, because that case was wrongly decided, and here�s why�� that sets in motion the possibility of getting the case overturned; it puts on the record a respectable dissenting view which can be elaborated and perhaps embraced, if not in that case, then some day in the future. It provides ground for a strong appeal. But just saying �Well, I�ll just take my marbles and go home (in part)� doesn�t help anyone.

I am not willing to entirely endorse the view that �[a] judge�s conscience does not enjoy constitutional status.� Judges are chosen for their conscience as well as for their other qualities, and a judge�s conscience has as much constitutional status as his knowledge of the law, or his research skills. Also, I find the clerk analogy weak, since a clerk is not supposed to exercise judgment; his is a ministerial task, as it were, so it really begs the question, since what we�re asking is whether the role of judgment in the constitutional scheme includes the judge�s application of conscience. But I do agree that in every case that I can think of, the better, as well as more effective, solution to the problem is for the judge to explain why he thinks that the precedent is wrong, but follow it nevertheless. It helps to solve the problem, rather than just pouting.

Fame: Thanks to Notes from Ground Level for the link. But please note that I am not �a Timothy Sandefur.� I am the Timothy Sandefur.

Watching: Just finished watching Catch Me If You Can and Curse of The Jade Scorpion. Catch Me If You Can was very good; an excellent illustration of Tim�s Rule Of Life Number 1: If you look like you know what you�re doing, people will let you. There was also a little of Tim�s Rule of Life Number 2, in there (It�s always easier to get forgiveness than permission). And come to think of it, even Rule Number 3 (Never trust women) in one scene.

The Jade Scorpion, on the other hand, was awful. I watched it to support the career of my future wife, Charlize Theron, and I thought that she did an excellent job, of course, as did most of the other actors. But Woody, man. Time to quit. You may still play the clarinet and write movies, but the scatterbrained angst is starting to slip and reveal that underneath you�re just forgetting your lines.

Memorial Day: A block away from my house is the Placerville Union Cemetery, which I had never visited until this morning. I love old cemeteries, particularly the ornate headstones of the Victorian era. Nobody could mourn better than a Victorian. The oldest stone I found was from 1868, which isn�t old by national standards, but isn�t too shabby for California. One interesting thing is that almost every pre-twentieth century stone I found had something on it about the place of birth of the deceased: very often foreign countries; lots of Germans and Swedes, born in the 1830s, who, I presume, came for the Gold Rush or the Transcontinental Railroad, which pierces the Sierra Nevada not far from here.

Of course, the Chinese came, too, but there are no Chinese buried in the Placerville cemetery, and there are two reasons for that. One is that the Chinese would have had their own cemetery, if any at all�the racist attitudes toward the Chinese, which came as close as anything in Californian history did to slavery, would never have allowed them to be buried in the same cemetery with whites. No, the Chinese who died manning the explosives in the solid granite mountains here were buried in unmarked graves; nobody even recorded their numbers. Second, the Chinese had a tradition that their dead should have their bones returned to be buried in China. This was expensive, and many could not afford it. At the California Constitutional Convention of 1878, one of the many proposals for persecuting the hated Chinese was to make it illegal to ship human remains out of the state to any foreign country. Racism, you see, being a petty thing, expresses itself in petty ways.

What was once Chinatown in Placerville is now approximately where our Post Office is; about a block away from the stream that flows down through the center of town. In the museum up the way are some artifacts that were dug up from that creek over the years, including some Chinese items like pipes, or money. But other than that, there is no physical sign that the Chinese were ever here; I�ve never even encountered a person of Chinese ancestry here. No, no sign of their having been here�except, of course, for that railroad that goes racing alongside the forbidding jagged rocks of Donner Pass (one of the greatest engineering feats of all time) and their bones, lying silently forgotten. Every day the south, at the very least, looks at its feet a little, in shame at the memories of slavery. California, though, has forgotten the cruelties, both severe and petty, that she inflicted on the Chinese�and, indeed, through her racial quotas in college admissions, she continues to punish that brilliant and hardworking people to this very day; punish them, that is, not for their vices, but for their virtues.

Anyway, another interesting thing about the cemetery is that Placerville actually has a Civil War Veterans section, which has perhaps a dozen graves in it; all Yankees, of course. Also, a few with �Mexican War� on their headstones. And very many stones with Masonic and Oddfellows symbols on them. I wonder if the cemetery was once owned by these organizations. All the veterans� stones had flags up.

The rest of the day I just drove around and bought a few books and read more of the Greenberg book. It�s very good; I�m only a hundred pages into it, but I already recommend it. Thurgood Marshall was, indeed, an amazing man! More on this later.

Name changes: This story on CNN puts me in mind of a New York case I chanced across the other day, In re Bobrowich, 2003 WL 230701 (N.Y. City Civ. Ct. Jan 06, 2003). Apparently, changing your name is a big deal in New York. (Maybe in California, too; I don�t know.)

The case involves a person who wanted to change his name from Stephen Michael Bobrowich to �Steffi Owned Slave,� as a political comment, because, as he explained to the court, �I feel that I have been treated as a slave my whole life, being paid minimum and treat as dirt I wish to show that I am.� But the court notes that Steffi �is commonly used as a shortened version of the female name �Stephanie.� Case law has held that in such situations, medical and psychiatric evidence is required to establish whether or not the petitioner is a transvestite or a transsexual (Application of Anonymous, 155 Misc.2d 241, 587 N.Y.S.2d 548 (Civ Ct. Queens Co.1992)). If that is not the case, then the court will require some showing on the part of the petitioner that �Steffi� is regarded as a male name in this or some other culture.�

What difference does it make, you might ask. Well, �when application is made to the court, an obligation arises on the part of the court to analyze and scrutinize the petition, since the order of the court changing a persons name gives the new name an �aura of propriety and official sanction� and makes it a matter of public record (Matter of Linda Ann A., 126 Misc.2d 43, 44, 480 N.Y.S.2d 996 (Civ Ct. Queens Co.1984))�. [T]he change of a person�s name is a serious undertaking with legal and other implications that involve not only the individual submitting the application but also the public at large.� Thus it�s illegal to change your name to something obscene, misleading, or to something that �would in some other way violate the public policy or morals of our state.�

So the court held that �petitioner cannot assume the name he has submitted for consideration.� The court noted that actual slaves had no last names, as they were considered less than human. �Yet the petitioner herein wants to reject his birth name and adopt as a name words that are the antithesis of individuality and freedom and recall a sorrowful era of American history.� So the court held that, since slavery has been illegal in New York for almost two hundred years, �the Court cannot change the name of the petitioner to something that reflects this illegal status and is therefore objectionable.�

But Tim, you say, I thought members of the Nation of Islam adopted the �X� designation as a symbol of their unknown names of which they had been robbed by slavery; that it has a religious, or at least, a politically expressive component to it. How, then, can the state prohibit Stephen from making such a statement? Well, the court says �Although that might be an issue, it is not one of any substance, since an individual has a common law right to use whatever name he or she chooses. So if a petitioner wants to make some political statement by changing his or her name, or by naming his or her child, such a petitioner is free to do so. [But b]y bringing an application pursuant to the Civil Rights Law, the petitioner seeks to attach the imprimatur of the court to that individual�s political philosophy, something that is beyond the scope and function of a neutral, blind justice system.� Since the legislature required a judge to consider name changes, the court held, it was not a ministerial act, but required judgment, and thus Stephane had no right to a legal name change, though he might call himself what he wanted in public. This last consideration, the court held, meant that Stephen�s First Amendment rights were not violated. I leave it to you to decide whether that is correct or not. But who knew that name changes were such a big deal?

E. in Italy: Got an email from E. who is on a law school study-abroad thing this summer. It states, in pertinent part,

Hi everyone, just a quick email since Im on the clock for this. Am currently in Florence, it is beautiful. Theres something going on in the piazza della signoria that sounds like a soccer match, but that seems unlikely. Will have to check it out.

Made it from Paris to Florence on the sleeper with some snorers.... I thought one woman was drowning in her sleep. The Parisians couldnt have been nicer. I originally thought I would immediately catch the sleeper train from Paris into Italy, but after my flight, I knew I needed real sleep in a real bed (and a shower, since I was starting to smell like a real Parisian). So I went to a hotel, and they were booked, and the blessed man called and found me a cheaper hotel down the street and reserved a room. Angel. Oh, I told K. about this... I ordered something under the �Les Pates� section called Taglliatelle a la Toscana. When last in Italy, I enjoyed a pasta called Taglliatelle, so I ordered it. Imagine my surprise when a honking scoop of raw hamburger meat was served, topped with a raw egg yolk in its shell. There were some cooked potatoes too. The potatoes were good. I stubbornly refused to send it back, because I thought I either ordered something strange and didnt want to look like a stupid American by sending it back, or these Frenchies were playing with me by sending me some weird French cuisine so they could laugh when I turned my nose up at it. So I ate several bites (sandwiched between the potatoes). I had the comforting thought that I maintained some sense of dignity. Then I wondered if I caught SARS from contaminated beef, or some other disease, and died eating something I didnt even want, would that be dignified?? I invite your thoughts on this question. Its a moot point now, since I am in fact still alive.

I am so hungry I would gladly eat raw meat. I keep sleeping through meals as I have very bad jet lag. I am glad to have MTV Italia back, so I can catch up on the cheesy European music scene.�

Oh, back to the nice Parisians... since I had a day to kill there, I thought I would get a jump on looking for housing since I will be back there in July. They are evidently very serious when they told us to come three days before the program starts and they will help us with housing. Im afraid I confused them very much, but they were very kind and let me use their office internet to search around a little bit. I doubt that any office at USD would let some damned foreigner (or even a paying student, for that matter) use their internet.

So my first and last night in Paris, I went wandering around the city�and stumbled across Victor Hugo�s house, near this beautiful park. It was 10 pm, so most things were closed, but this man was playing the flute so beautifully�.

Thats pretty much it for now... I havent done much. Tried to find an internet cafe yesterday so my roomie and I could coordinate our rendez vous. Alas, very few internet cafes are open on Sunday, so I was left to wander the city, teeth unbrushed, clothes and undergarments unchanged... ICK. Whats maddening is the Italian men dont seem to mind the stink much. K. thinks they thought I was a hooker. I think the hookers are probably better groomed than that. At least I hope so.

Oh!! And those familiar with my hair care saga of last summer will be very amused to find out 1. somewhere in transit, I have managed to break yet another flat iron (yes, another one, I have had it for maybe a week after my last one broke). 2. While using my blow dryer this morning, I blew a fuse in my hotel room and none of the lights work.

So far, no flames have come spitting out of the dryer, but since I only escaped by a hair�s breadth (10 points if you caught the pun) in Rome the last time that happened, I think I�ll do the air dry look.

Dearest friends, you will of course excuse my bad grammer and syntax. These odd computers and my time constriaints make it difficult to craft a fine email� And Tim, my sister lent me this book called the 5 minute Illiad. You must must must read that book. You will laugh until you PIYP (Pee in your Pants).

And for those of you kind enough to email me, I think I have enough time to respond to them. But I miss all my chums, and although I havent gotten teary or anything, Im a little homesick and wish I had some buddies with me.

[E.]

So the good news is that she hasn�t cr�me brulee-ed her hair, like last time. But give her time, she just got there.

Questions for Objectivists: We�ll continue now with one picked essentially at random: �What have you found to be true that you absolutely wished was not true? In other words, when have you overcome a desire for comfort over truth, or personal happiness (even short-term happiness) over truth? When have you �wrestled yourself and lost�? And, to get to the heart of the matter, why did that conflict arise?�

I�m not sure I entirely understand the question, so I�ll answer the different permutations that come to mind. First, the question might be asking about times when I�ve learned things that I today still wish were not the case. There are plenty of things I�ve learned that classify here. I wish slavery had never existed, or segregation, or communism, or reality television. I wish the Welfare State didn�t exist. I wish it weren�t true that my grandfathers are dead. I wish my cat Samson were still alive. I wish E. were still with me. But this is hardly surprising. Rain falls on the sinners and the saved alike.

On an intellectual level: I have on several occasions come to realize that what I had once believed in�or even fervently advocated�was wrong. For instance, I used to believe very much that secession was constitutional and was a separate issue from slavery, and therefore that Lincoln was wrong in the Civil War. Obviously that�s not something I believe in now; I gradually discovered that what I�d believed was absolutely wrong. It took a while; I would mull over the arguments, put them aside, try to find ways around them, seek out compromise positions, ignore the whole subject for a while, then return to it as a moderate on the other side, and gradually built up to the point where I am now. The conflict arose because, in high school, I read the Kentucky Resolutions, and was entirely won over to the compact theory of the Constitution. Gradually, through the works of Harry Jaffa, Drew McCoy, and, of course, the framers themselves, I was disabused of my previous ideas. But surely this can�t be what the question really is going for�there�s nothing surprising in the fact that we sometimes come to learn we�re wrong about things on an intellectual level.

Does the question mean on a spiritual level? For a long time I tried hard to keep up a belief in God. I knew from an early point the pressure in society to claim a belief, even if one doesn�t really believe. I never bought that stuff they gave us in the Sunday school. So I concocted my own religion from what I found would a) suit others, and b) not undermine my own rationality to a degree I couldn�t abide. What I ended up with was a rudimentary version of what I later found was called �Pascal�s Wager.� That didn�t satisfy me, since I realized that God, being omniscient, would see that I was just hedging my bets. So, following Jefferson, I became a deist. This was very safe for me. But finally, I had to admit that even that was just postponement and intellectual cowardice, so I came to admit that I am an atheist, and just face the bigotry. Not an easy thing to do, when many of your friends and relatives are religious. In my case, it was much, much easier than for most people, though. Yet I don�t recall ever feeling a terrible emotional struggle over this matter on a personal level, either. The emotional struggle was in the peer-pressure, from outside. On the inside, the choice was always whether to give in to the pressure, or to admit what seemed rational to me. But I never had a sense of angst or loneliness over the question of myself living in a godless universe. For me, frankly, it was always godless�(just as it is for everyone, actually!)

If the question means matters of a more personal nature, well, I�ve been in romantic relationships that were extremely difficult to navigate. One in particular comes to mind; it took every ounce of strength I had at the end to refuse to go along anymore with the way things were, which was hurting me a great deal, and I am today extremely proud of the fact that I finally had the courage to say no. I pulled out all the stops trying to save that relationship. I did absolutely everything I could think of. I spent a great deal of time, emotional energy, and money on it. Hell, I even prayed. I won�t get into details; I am not talking about E.; let�s just say that still not a day goes by that I don�t think about it, and even wonder if that wasn�t �The One.� Goodness knows I wanted it to be. She was a marvelous person in every way; beautiful, brilliant, with a spirit�well, again, I don�t want to get into too many details, but the downside was that she simply was not capable of having a serious, grown-up relationship, and I wanted it so badly to work out that I had persisted in overlooking that fact. Finally, because contradictions cannot work out in the end, it ended up not working out, and I was forced to confront that fact head-on. The conflict arose for many reasons, but among them was my willingness to put my emotional desires ahead of the facts; to tell myself, �Sure, this and that and the other thing happened, which hurt me deeply, and no person who cared about me would have done them, but they don�t really matter�.� And I suspect many people have bad relationships because of that.

It�s awfully hard to admit to yourself that what you really want can�t be, and that something you�ve spent years on is just never going to work. But, as I said, I can at least say that when it came down to it, I faced it squarely and did not allow her or, more importantly, myself, to compromise yet again.

I think that one thing Objectivists are good at is being honest. We don�t believe that it�s moral to fake reality. On the other hand, one thing Objectivists are often not good at is forgiving themselves when they make mistakes or do wrong things. The reason is because they see that this can be dangerous�a person can slide into saying �Well, what does it really matter? I�m only human�.� We distrust the notion of �forgiving oneself� or �laughing at oneself� because it is so often used in a truly self-destructive way, as either a cover for vices one should work to abolish, or out of a wrongful guilt over one�s own virtues. So it�s understandable that we are suspicious of the notion of self-forgiveness. On the other hand, it is true that nobody is perfect, and, more importantly, laughter is one way that we express our affection�when I laugh at my cat Tatters, it�s because he does something that�s just so much like him! It�s not demeaning; it�s part of what connects us; the same is true of our relationship with people. Mild teasing is a common way of showing affection for folks�precisely because we know that we�re just playing. That�s the �Muttnik Principle.� Many Objectivists have not learned how to apply the Muttnik principle to themselves. They are not able to relax in their own company. So confrontations with oneself can sometimes be very intense for them. I say this because I�ve been through this myself, and I�m assuming from what I know of other Objectivists, that this is not uncommon. The solution is to take life by the smooth handle. Wrestling with yourself is just fine, but you have to be able to shake hands with yourself after the wrestling match is over�since you have to ride home with your opponent that night. Trite, I know, but very true.

Sacramento Jazz Jubilee, Day 2: Went down to the Sacramento Traditional Jazz Jubilee again, today. Not as good as yesterday, but I dropped by again in time to hear the young band I mentioned earlier (�Four Guys From Reno,� with Andre Fylling on keyboards, Sam Phelps on electric bass, Brian Rogers on drums�yes, I know that�s only three. I don�t get it, either). They played �Footprints� again.

Hey�for my generation, Miles Davis is �traditional� jazz!

May 26: Tomorrow is May 26, which is Memorial Day. It�s also two other things.

First, it�s Miles Davis� birthday. I�ve been obsessing on his repertoire for a year now (started �cause it�s perfect bar-studyin� music), so I�ll celebrate by urging all of you to run out to your local Tower, Virgin, Borders, or wherever, and pick up the following CDs, which are the finest of his work in my humble opinion. Kind of Blue, of course, you already own, since it�s the one Miles CD everyone has. But you should also buy Someday My Prince Will Come, which is among his finest productions, and yet often goes ignored by those making lists. The title track, as well as �Teo� and �Old Folks��oh, they�re all amazing. Relaxin� With The Miles Davis Quintet is also perfect from end to end. These three are CDs that you can listen to if you�re new to jazz, and don�t want to spend money on a CD you�re not sure you�ll like. They present a great introduction to Miles� work�cheery, introspective, clever and lonesome, all the shades that make up the Prince of Darkness.

Now, if you like Relaxin�, you could work your way backwards, through Steamin�, which is also excellent, and through some of the earlier stuff which is also very nice, although not to the same level. (Walkin�, for instance). If you want to get into his more complex work, get Miles Smiles; it might take you a while to really like it, just keep listening to it, especially to �Footprints.� When you�re ready, get E.S.P.�the last track, �Mood,� is out of this world. You�ll be able to find your way from there, I think. And you might also check out John Szwed�s recently published biography, So What. It�s written with a lot of technical stuff about music which was over my head, but all in all, it�s pretty good. The best part is the following, from an interview late in Davis� life, on the Today Show with Bryant Gumbel:

Gumbel: What should we tell folks, that Miles Davis has mellowed with age, or that now people are just willing to listen to what he�s always been, or�?

Davis: Don�t tell them nothing! Let �em guess.

Gumbel: You like the mystery.

Davis: They like it. I�m cool.

How true!

Secondly, May 26 is the anniversary of the English Petition of Right, drafted by Sir Edward Coke (the Oracle of the Common Law). Little could they know, when the Petition was issued, that it would be the first step in a 140 year struggle which would see the rise of classical liberalism and, at last, the enunciation of our basic principles, that all men are created equal. For those of us who are fighting against an injustice from 140 years ago�namely, the Slaughter House Cases�it is a little bit inspiring to think that great ideas can never die, although men and women might.

Funny. The other day I was at lunch with some friends and one fellow was sounding very cynical about the prospects for freedom. Finally I said to another friend who was with us, �You have to excuse Dave. He hasn�t seen miracles, the way I have. He hasn�t seen Martin Luther King III wearing a button on his shirt that says �End Eminent Domain Abuse.� He hasn�t seen the way freedom can touch people. Because, although there are some who are beyond hope, most people are like Darth Vader in Return of the Jedi; deep down in all of the collectivism that they�ve swallowed for so long, there�s a little spark still, a little belief in freedom. And if you fan that, just a little bit, you can help it to grow, slowly, yes, but it will grow.� Well, Dave wasn�t convinced. But I�ve been to the mountaintop, and I�ve seen the promised land.

This is on my mind because I�ve just started reading the memoirs of Jack Greenberg, a real hero, who helped lead the NAACP Legal Defense and Education Fund, Inc. (a.k.a. �the Inc. Fund�) in the fight against segregation, which culminated in Brown v. Board of Education. Man, if you�d told people in 1920 that segregation violated the Fourteenth Amendment, what would most of them have said? Why, they�d say just the same thing as they do now if you were to say to them that telling people they may not work for a certain amount, or telling them that they have to get a license for it, or telling them whether they can have a house that�s yea tall or so-and-so wide, or telling them that they have to pay an �exaction� for a permit�if you said these things were unconstitutional, they�d scoff today just as they scoffed in the olden days. Yet there�s still that spark. Some day, friends, it will happen. Some day, we will wake up and see that the right to earn a living is a fundamental right that the state should not be able to take from us; some day we will have a country where the government can�t just steal your land to give it to Costco. Some day; and I think sooner rather than later. �Methinks I see in my mind a noble and puissant Nation rousing herself like a strong man after sleep, and shaking her invincible locks: Methinks I see her as an Eagle muing her mighty youth, and kindling her undazl�d eyes at the full midday beam; purging and unscaling her long abused sight at the fountain it self of heav�nly radiance; while the whole noise of timorous and flocking birds, with those also that love the twilight, flutter about, amaz�d at what she means, and in their envious gabble would prognosticat a year of sects and schisms.�

More Fame! (I�m gonna live forever!): Well, I�ve made the big time, now�I�ve been linked on How Appealing. Thank you to Mr. Bashman, the finest in the business.

Fame!: Thanks to Legal Theory Blog for the link. And my very sincere condolences to Prof. Solum on his recent loss.

ROFLMAO: Lap dogs! Lap dogs! (Saw it on Dave Barry).

Ninth Circuit�s �conscience�: Evidently the Ninth Circuit Judges are having a very hard time with the Three Strikes decision from the U.S. Supreme Court. As How Appealing noted recently, after the Court handed down that decision, the California Attorney General filed a bunch of motions to get rid of appeals where the defendants were challenging the Three Strikes laws, and the Ninth Circuit judges are granting those motions with a great deal of grumbling. Judge Pregerson just refuses to obey the Supreme Court.

Now, we all know how the Ninth Circuit goes. When President Carter appointed Judge Pregerson to the bench, was asked whether he would follow his conscience or the law, if the two came into conflict. He replied, �I would follow my conscience.� (See John Johnson, Judge Harry Pregerson, Choosing between Law And His Conscience, Los Angeles Times, May 3, 1992 at B5.) Sure enough, in 1992, when California tried to execute Robert Alton Harris, Pregerson issued a stay of execution�the fourth such stay entered that night. The Supreme Court finally had enough of Pregerson, and specifically ordered that �no further stays of Robert Alton Harris� execution shall be entered by the federal courts except upon order of this Court.� Vasquez v. Harris, 503 U.S. 1000 (1992). This was quite unprecedented. (See further Charles Fried, Impudence, 1992 Sup. Ct. Rev. 155, 188-92).

So now, sure enough, Pregerson thinks that Three Strikes is just too mean, and he�s refusing to obey the Supreme Court. The cases, as How Appealing points out, are Rico v. Terhune, 2003 WL 21186323; Wallace v. Castro, 2003 WL 21186336; and Turner v. Candelaria, 2003 WL 21186338, and in each of them Pregerson has filed opinions labeled �PREGERSON, Circuit Judge, writing separately, dissenting in part.� It�s unclear to me which part he isn�t dissenting in, since these opinions consist of a single sentence, �In good conscience, I cannot vote to go along with the sentence imposed in this case.�

Now, I could just stomp my feet and call Pregerson a bad, bad, man, and I suspect a lot of that is coming. But what, really, should a judge do in such a situation? Justice Scalia has said that such a judge should resign. Is that right? Even Justice Scalia refuses to go along with some Supreme Court decisions�he said in his Dickerson dissent that he would continue to do that (�I dissent from today�s decision, and, until �3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant�s confession was voluntary.�). Now, he�s on the Supreme Court, so he has the authority to do that�is that the only difference? Is a judge really not supposed to ever follow his conscience? Of course, if a deeply Christian, anti-abortion judge were to start following his conscience on cases involving Roe v. Wade, that would set up a real outcry, as it should. So the left would be making a mistake, I think, to endorse Pregerson�s actions here. But on the other hand, if a judge must resign before he bucks a Supreme Court decision in a case where he really believes the Court to be wrong, then how can anything ever change?

I agree that a judge is supposed to follow the law, and that he swears to uphold the Constitution of the United States. And �the Constitution devotes the domain to union, to justice, to defence, to welfare, and to liberty. But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes.� We have sometimes revered judges who refused to follow the Supreme Court, such as the New York Court of Appeals, which in Lemmon v. People, 20 N.Y. 562 (1860), refused to follow the Supreme Court�s decision in Dred Scott. Now, the Lemmon Court found grounds in which to distinguish Dred Scott, rather than to just ignore it outright, but those grounds were illusory, and in any case, the issue can�t be different just because the court finds some clever way of distinguishing Supreme Court precedent they don�t like�can it? I mean, the issue is the same whether a judge defies the Court openly, or just finds a clever way to get out of it. (And I think Judge Pregerson�s dissenting �in part� is like that�he�s not directly defying them�.)

Hamilton tells us that �When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.� True, he�s talking about the President, but the principle should apply even more to judges, because the President�s just supposed to see that the law be faithfully executed, while judges are supposed to exercise judgment.

I don�t know the answer to this. I know the solution�impeachment. (See Jonathan Turley, Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, 49 Duke L.J. 1 (Oct. 1999)). Impeachment is actually a very good solution to a case like this, because it throws the matter to the political branches where the decision must be made with the public�s views in mind. In this case, I suspect Pregerson would lose, because the public seems to be pretty much in favor of Three Strikes, and that includes me. But in the coming days, we�re going to hear a lot about how judges shouldn�t follow their own consciences over the law, ever. And that, it seems to me, is not so clear. If Pregerson were to be impeached and thrown out of office over this�which he won�t be�then that would be the proper solution, not because he�s wrong to follow his conscience per se, (again, I don�t know whether he�s wrong to follow his conscience) but because his conscience is inconsistent with the people�s interpretation of the Constitution.