June 29, 2005
In today's AmSpec column, I give Bush's speech last night a thumbs up.
June 27, 2005
Some responses to Friday's column on the anti-desecration amendment:
I couldn't agree more. Do we really want to see every left wing nut from Move On et al burning flags and going to jail to show that W and the republicans are against free speech? Any moron that burns a flag in a post 9/11 world isn't going to win himself any friends any way. Misplaced priorities.....And:
America has a very short constitution. The last thing I want is for our constitution to be bloated by small issues that don't affect the welfare of the nation. On the other hand, censorship will now be in the constitution, and it may make it easier to censor offensive speech in other areas, due to our court's love for reading between the lines and finding hidden meanings in the constitution.There's more in today's Reader Mail; they aren't as positive as these, but three out of four of them seem to at least partially agree (and there are some interesting ideas for approaches to flag-burning apart from an amendment). Only one writer is "continually amazed that some conservatives don't get it when it comes to protecting the flag." (Incidentally, if you want a response to an AmSpec column be included in Reader Mail, send it to editor at spectator.org rather than to me.)
This isn't a statistically representative sample of the country at large, but this slice of generally conservative readers at least suggests that while deep passion to protect the flag does still exist 15 years after Eichman, it isn't all that widespread.
Compare that to the pile of missives you have to scroll past to find the flag-burning emails, responding to Christopher Orlet's column on Kelo. As far as AmSpec readers are concerned, it seems next to eminent domain abuse, flag-desecration is yesterday's news. Or, as a letter to the Houston Chronicle puts it (second item): "Frankly, if our property rights are going to be taken away like this, our flag may as well be burning."
June 24, 2005
Links of the Week
Andrew Sullivan apologizes for being alive.
Tunku Varadarajan interviews Oriianna Fallaci, finding her full of "pessimism, pure and unashamed."
David Holman talks to Christopher Hitchens about the D.C. smoking ban proposal. (Time traveller returning to the nineties: "In the future, American Spectator readers effusively praise Christopher Hitchens! And they hate David Brock!")
Reason asks legal experts who "range from the far left to the hard right, but [are] all libertarians in whole or in part" about their favorite Supreme Court Justices past and present, and their favorite picks for the Court in future. (Harvey Silverglate nominates Eugene Volokh, who liked my column today.)
And at Slate, Emily Bazelon and David Newman report extensively on the records of several possible Supreme Court nominees.
Ann Althouse is fairly sanguine about the ruling. I find it very hard to believe that Stevens has a better handle on the correct interepretation of "public use" than O'Connor, Scalia, or Thomas, but she does make some interesting points.
There's also a noteworth discussion on Kelo going on at The Corner.
Jonathan Adler writes:
I don't understand why conservatives are evaluating a Supreme Court decision primarily on the basis of what it allows state and local governments to do. I find the use of eminent domain for economic development to be obscene and immoral. I feel the same way about laws against consenting sexual activity conducted in private by adults. But the fact remains that state and local governments have a fair amount of power under our constitution to enact either. We often tell folks on the left that not every social ill should be cured by the courts, and that should apply no less when "conservative" interests are at stake.Adler seems to be getting at a critique of incorporation, the accepted (but questionable) theory that the 14th Amendment extends the limits placed on Congress by the Bill of Rights to state and local governments. Mark Levin responds:
If the proposition, not plainly stated, is objection to the incorporation doctrine, that is certainly a debate worth having. However, it clearly was not an issue here, as the matter has been settled (at least for now) by the Court itself.Andrew McCarthy echos that sentiment:
Jon, if we could rewind the clock such that there was no incorporation doctrine, or at the very least such that the Takings Clause was not incorporated, I think you’d have the better of this argument. I would far prefer a construct where the feds butt out and local power grabs were handled locally. There would still be occasional abuses, but at least we would not have what we have now: a national policy that Peter may be robbed for nothing more than the benefit of Paul.I would gladly take the Kelo ruling if I thought it meant the Court was retreating from interventions at the local level, but that's surely not the precedent that the liberal majority means to set. That leaves the question to one of interpretation, on which the Cornerites have an interesting intra-originalist disagreement. Adler:
Alas, it is too late in the day to argue for that. So, don’t we have to acknowledge that the Supreme Court is the proper forum for vindication of the citizen’s private property rights against takings by the state?
And while I would like to read "public use" as a strict limitation on government use of eminent domain for a small set of purposes, there is little warrant for this interpretation in either the ratification history or the court's jurisprudence of the past 100 years or so... I don't like the practical result any more than you, and I wish a stronger originalist case could be made on the landowners' behalf. Alas, Justice Thomas' inspiring dissent notwithstanding, I don't believe that is the case.Levin:
Jonathan, let me put it this way: If the framers meant "public use" to include the seizure of one citizen's private property for delivery to another citizen, you'll have to provide some historical evidence to support such a proposition. You can't. To argue that there's no history disproving such a conclusion is to ask for proof of a negative... State authority exists where the Constitution is silent. That's not just my opinion. That's what the Tenth Amendment says.McCarthy:
Moreover, while there may be little in the to be gleaned specifically from the ratification history about the original understanding of “public use,” I thought Justice Thomas provided a pretty impressive explication of what “public use” was understood to mean at the time of ratification, based on both the text of the Constitution itself (e.g., Thomas distinguishes the Fifth Amendment’s narrow term, “public use,” with the Framers’ choice of the broader “general Welfare” elsewhere in the Constitution, stressing that “public use” was a crucial limitation, not a sweeping grant, of government power) and commentary from Blackstone (e.g., “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property”) (1765).Actually, I think Raich made it pretty clear that "Scalia’s track record of trying to push the law back to the original understanding" is spotty-- a point that Ramesh Ponnuru makes as the discussion continues.
Aside from ratification history, you also say – and I completely agree – that based on “the court's jurisprudence of the past 100 years or so[,]” there is little warrant for the narrow construction, which Thomas urges. But isn’t the whole point of originalism that the Court’s jurisprudence has strayed from the Constitution’s true meaning? And that the Court itself is the best place to put that right? If we’re going to say we’re stuck with the last hundred years of what the Court has made of the Constitution, originalism is dead.
To be clear, I raise these points cautiously because there is something very puzzling to me about all this: Why didn’t Justice Scalia sign on to Justice Thomas’s dissent? We know Scalia believes passionately in originalism, and we know where he stood on the bottom line of the case, since he joined Justice O’Connor’s dissent. But he did not join with Thomas, who agreed with O’Connor but dissented separately because he didn’t think she made the case for the original understanding of the Takings Clause.
Does this mean Scalia thinks Thomas is wrong? Or that Scalia didn’t think it was necessary to go beyond what O’Connor wrote (which I would find hard to believe given Scalia’s track record of trying to push the law back to the original understanding)? I wonder.
We Don't Need No Water, Let the...
My AmSpec column today is about the flag-burning amendment.
June 23, 2005
What's Yours Is Not
Kelo v. New London was decided today, 5-4; the left half of the Court-- Stevens, Ginsberg, Souter, Breyer, and Kennedy-- affirmed the principle that local governments may take your land and give it to a developer. Eugene Volokh throws out a theory on why this might not be all that bad, though I think the counterarguments he ponders are more persuasive than his main point. Most other free-market types are unhappy. Tim Carney notes that this sort of eminent domain abuse is an example of what he's writing a book about: how big business conspires with big government.
Glenn Reynolds writes: "Judging by my email, and the reactions I've seen around the blogosphere, I think the political impact of this decision is going to be very large." I'm not sure that's right; do that many people even know what eminent domain is, let alone vote on it? But even if Reynolds overstates the size of the decision's political impact, his thoughts on the nature of the impact are still worth reading.
UPDATE: More here.
The Lions Who Shot Liberty Valance, Continued
[Wedajo] called the incident "a miracle" and described the big cats' behaviour as "something unbelievable".As of now, according to Google News, there are well over 100 sources carrying the AP dispatch, and only 2 with the AFP skeptical experts version, both of them in South Africa. The spirit of Maxwell Scott lives on.
Unfortunately for those enchanted by the tale, the latter opinion is shared by a seasoned hunter who has never known lions to be altruistic before.
Colonel Lemma Legesse, a professional big game hunter, said the lions, having chased off the larger humans, were probably getting ready to devour the helpless girl, as they would any other prey, when they were interrupted. Ketma Amberber, head of the zoological and natural history museum at Addis Ababa University, echoed that sentiment and offered another theory as well.
"This was just pure luck, it was not a question of guarding the girl or keeping her safe," he said.
"Either the lions had already eaten and were full or the police arrived as they were deciding whether to eat her or attack."
June 22, 2005
The Lions Who Shot Liberty Valance
ADDIS ABABA, Ethiopia - A 12-year-old girl who was abducted and beaten by men trying to force her into a marriage was found being guarded by three lions who apparently had chased off her captors, a policeman said Tuesday.On first reading, it tugs at the heartstring. But on second reading, doesn't it tickle the BS detector just a bit? It wouldn't be the first time that a reporter opted to print the legend, after all.
Most of the story rests on the statements of a policeman that the reporter, Anthony Mitchell, has apparently never met face to face: "Sgt. Wondimu Wedajo, speaking by telephone from the provincial capital of Bita Genet, about 350 miles southwest of Addis Ababa." The second source:
Tilahun Kassa, a local government official who corroborated Wondimu's version of the events, said one of the men had wanted to marry the girl against her wishes.
Google knows of two mentions of the name "Tilahun Kassa" outside of this article-- once for the head of the Telecommunication Industry Monitoring and Planning Department at the Ethiopian Telecommunication Agency, and once as a source in a report which lists him as "Ato Tilahun Kassa, Administrative and Finance, DOA [Department of Agriculture], Negelle-Borana." If the government official named Tilahun Kassa in the story is the same as either or both of these two, why would he have any firsthand knowledge of this case? Wouldn't all that he has "corroborated" be that he's heard the story told a similar way that Sgt. Wedajo tells it?
The only other source Mitchell quotes is Stuart Williams, an Ethiopia-based British conservationist that Google knows well:
"A young girl whimpering could be mistaken for the mewing sound from a lion cub, which in turn could explain why they didn't eat her," Williams said.Does that sound plausible? Lions can't tell the difference between their own cubs and a member of another species who makes a vaguely similar noise? Doesn't it sound like Williams was given a scenario to explain, scratched his head, and threw out a grasping-at-straws theory for something he'd never seen before?
All of us are guilty at times of granting greater weight to stories that comport with our views. Politically, media watchdogs are split into right-wing and left-wing factions. In the case of this story, the anthropomorphic narrative of noble lions pushes the right buttons on most of us (just ask Disney) and doesn't raise anyone ideological hackles, so it slides. But ask yourself: If you heard this story at a bar, would you believe it? And do the reputations of AP reporters and third-world policemen merit greater credulity, or not?
UPDATE: More here.
June 17, 2005
Links of the Week
Andrew McCarthy explains why local prosecutors have so much trouble convicting celebrities in general and Michael Jackson in particular.
For Father's Day, Jonah Goldberg eulogizes his.
GayPatriot is back.
And The Truth Laid Bear-- best known for the Blogosphere Ecosystem (I'm a Crawly Amphibian!)-- now automatically displays the most popular blog posts online (other sites have attempted this function, but the new TTLB is very well-done and user-friendly).
June 13, 2005
If you have the stomach for it, read the sworn statement (warning: very graphic) of the boy Michael Jackson paid off in 1993. It's worth remembering that the charges for which the ghoul was just acquitted did not mark the beginning of this repulsive saga. Nor, I suspect, does today's verdict mark the end.
June 10, 2005
Links of the Week
Sidney Goldberg (husband of Lucianne, father of Jonah) passed away this week; RIP. Some of his writings: from The Wall Street Journal on dictionary definitions of dictators' names; from National Review Online on New York Times spelling errors; and a whole bunch of stuff from TechCentralStation.
Geoffrey Norman rails against the Drug Czar.
"Fafnir" satirizes "The Wonderful World of Commerce."
John Leo notes some under-reported stories.
Raich Around the Clock
Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy has a zero-toelrance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. In Lopez and Morrison, Justice Kennedy offered concurring opinions that rested his decisions on a respect for the traditional functions of states, rather than on original meaning. Much of our brief was devoted to this issue, which, if anything, was stronger here — where states have affirmatively acted to protect the health and safety of their citizens — than it was in either Lopez or Morrison. How he reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to.Orin Kerr defends Kennedy, arguing that Kennedy's Raich vote was consistent with his concurrence in Lopez. Barnett responds, noting that if that was what Kennedy had in mind when he joined the majority (the only justice signing on to Stevens's opinion who also voted for Lopez), he should have written a concurring opinion saying so.
Kerr also defends Scalia against certain charges, citing Kyllo (once again, as I did) and also United States v. Booker. Those cases cut against Kerr's defense of Kennedy, though-- Kennedy silently joined the anti-drug side in both of them.
What Scalia is hung up on, I think, is how and when to defer to stare decisis, and when, instead, to overturn precedent. Barnett writes:
Raich does nicely illustrate why originalists need not be too bothered with the charge that they would reverse "precedent." The four dissenters in Lopez continued to dissent five years later in Morrison and maintained their opposition to Lopez even ten years later in Raich. During oral argument I confronted the same arguments made by Justices Souter and Breyer in their Lopez and Morrison dissents long after they had been rejected the Court... To insist that originalists must follow precedent when no one else does (when they don't want to) is less than compelling.
I similarly wrote earlier this week (in the column that I've now linked to three times in this one post):
By leaving it to judges to decide what constitutes a circumstance extraordinary enough to warrant reconsidering a precedent, the prevailing stare decisis standard invites the sort of mischief that Scalia is fond of warning against: it encourages judges to pick and choose the precedents they target according to their own policy preferences.What I didn't say, because I wasn't sure about the answer, is whether there's any objective standard for when to reconsider precedent. Barnett offers this nugget:
We asked the Court to reverse Wickard if it thought it was a barrier to ruling for us (this was included especially for Justice Thomas who won't reconsider precedent unless specifically asked) but we honestly did not think that reversing Wickard was at all necessary."Justice Thomas... won't reconsider precedent unless specifically asked." Intuitively, that seems like exactly the right approach. The benefits of strong stare decisis are mostly preserved, at least in the medium term: The rules change only fairly slowly, similar cases are treated similarly (at least until the composition of the Court changes completely), relitigation is limited, etc. The benefits of weak stare decisis are available: Unconstitutional rulings are not locked in. And whether or not a party to the case specifically asks to have precedent reconsidered is about as objective a standard as I can think of. Had Scalia followed it-- that is, had he answered the invitation to reconsider Wickard-- he might well have ruled the other way.
(Thomas, by they way, didn't so much reconsider Wickard as interpret it in the context of several other cases and conclude that the precedents argue for considering specific claims on a case-by-case basis rather than for alway following the logic of Wickard. See the fourth paragraph of section II-B in his dissent, if you're interested.)
June 07, 2005
Raich and Roll
In today's AmSpec column, I analyze Raich and come out against stare decisis on the High Court, at least as it's generally applied (that is, according to justices' whims).
June 06, 2005
I'll have more on the (misguided) decision in Ashcroft v. Raich tomorrow. (Here's Instapundit's round-up.) For now, two quick thoughts:
1. Jonathan Adler and Mark Levin are right: Thomas is a more faithful originalist than Scalia. That Scalia is more deferential to stare decisis is in some ways the other side of that coin. I prefer originalism to restraint for its own sake.
2. By the same token, those libertarians who praise "judicial activism" per se are misguided. Damon W. Root argues at length in the current (July) Reason that libertarians should break with conservatives on judges in pursuit of a broad reading of the due process clause. One of several problems with that idea is the fact that jurists who read the due process clause broadly tend to be the same ones who read the commerce clause broadly.
June 03, 2005
Links of the Week
Jim Geraghty chats with a Middle Eastern Michael Moore fan.
Wretchard of The Belmont Club contemplates the risk of the Islamic world's self-destruction. (Follow the links to his older posts for even more cheerful thoughts, e.g., "Perhaps in the long view of history it will be President Bush's commitment to 'return humans to the moon by 2020 and mount a subsequent human expedition to Mars' that will prove prescient.")
David Weigel tells of meeting Harry Shearer. And Shearer himself, blogging at The Arianna's Rolodex Club, has been posting amusing Larry King footage; all but the first, of a hilarously dumb question, are from commercial break moments picked up on a satellite feed: Larry trying to recruit a charity dinner speaker with George H.W. and Barbara Bush, praising himself to George W. and Laura Bush, and singing.
Finally, here's some footage of Rusty the narcoleptic daschund.
A Foundation Weak as Felt
June 01, 2005
If everyone knows that the lesson of Watergate was that the cover-up is worse than the crime...
And if, until W. Mark Felt was officially outed yesterday as Deep Throat, Bob Woodward and Carl Bernstein conspired with Felt to cover up Felt's identity by any means necessary, including repeatedly lying and even forcing Bernstein's son to lie...
Does that mean Woodward, Bernstein, and Felt are all worse than criminals?