A Stitch in Haste

In Chicago, it buys snow plowing:

Funding from federal Homeland Security grants helped build Chicago's new City Incident Center to coordinate traffic, towing, fire fighting and snow removal.

"This is the logical next step in our ongoing effort to integrate the communications and dispatch operations of all the relevant city departments, so they can respond rapidly and effectively to any emergency -- whether it's a blizzard, a major fire or a terrorist attack," said Mayor Richard M. Daley opening of the state-of-the-art facility Monday.

Chicago already has one of the world's most advanced 911 emergency response centers next door to the 3,000-square-foot Incident Center. The $4 million center has 24 computer workstations, 42 television screens, and advanced Web-enabled communications including an 18-foot tall, high-definition video wall. A dozen of the television monitors can descend to eye level and display live television images from citywide cameras.

MY TAKE: I seriously doubt that Osama bin Laden is hiding in a snowpile on the South Side. Snowplowing is not fighting the War on Terror, and a blizzard is not going to wipe out Chicago the way Katrina and the (federal) levee system wiped out New Orleans. Let Chicago and Chicagoans pay to plow their own snow. And of course ditto for us New Yorkers and the good folks of Buffalo and anywhere else that is susceptible to blizzards. In fact, here's a radical idea -- how about each local government pay for its own local needs, whether snowplowing or beach erosion or mosquito spraying or roadkill cleanup or whatever -- and tax their own residents accordingly? Isn't that a lot easier and more logical than a philosophy of "everybody pays for everything"? (Hat tip to LL&P.)

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In Ohio, meanwhile, it doesn't buy much of anything:

An Ohio sheriff has billed the Department of Homeland Security $125,000 for the cost of jailing illegal aliens arrested on criminal charges in his county, saying he's angry that the federal government has failed in its responsibility to keep them out of the United States.

Butler County Sheriff Richard K. Jones yesterday said that although the government may not be legally obligated to pay the three bills he has sent since November, he intends to send similar ones every month until the federal government gains control of the border.

MY TAKE: I of course reject the premise that an illegal alien crossing the border to find a job is equivalent to an illegal alien crossing the border to blow something up. Nevertheless, uncapitalized "border security" is part of capitalized "Homeland Security" (i.e., is a public good) and the monies should flow accordingly. On the other hand, sheriffs, who walk that thin tin line between politician and policeman, should consider being somewhat more restrained in their theatrics and grandstanding. Perhaps Sheriff Jones should make an appointment with his elected representatives in Congress? Just a thought. (In case you're wondering, Sheriff Jones is a Republican.)

A former top-ranking Australian military official has publicly called for that country to reinstate the draft:

Admiral Chris Barrie, who retired in 2002 after 41 years' military service, the final four as chief of the defence force, said Australia's young work force would substantially shrink in the decades ahead due to lower birth rates. "In such a climate, we will not be able to attract the number of people we need, even if we attempted the usual financial incentives schemes," Barrie told a conference.

"For these reasons, I consider that we ought to begin to think how and when Australia should shift to a universal national service structure to train young people for our armed forces," he added.
...
"We need to have young people join the military," he later told Sky News. "We can put in place all the financial incentives we like but the real fact of the matter is, we're going to run out of people."

This is, of course, utter nonsense. On several levels in fact.

First, if Australia is experiencing a declining birth rate, then the easiest solution is to foster net immigration. Is the potential for conscription likely to increase or decrease an Australian's willingness to remain in his home country, or might he get out while the getting's good? By the same token, would a family with adolescent children be more or less willing to relocate to Australia if it implements a draft?

Second, if declining birth rates mean that there aren't enough young Australians to serve in the military, then there's also probably not enough young Australians to do lots of other things, like become engineers or police officers or nurses or teachers or accountants or cabaret singers. If labor is scarce, then the opportunity cost of conscription becomes higher, not lower, and a draft becomes a worse, not a better, idea than if birth rates were high.

Third, if Australian faces declining birth rates, then it becomes even more important that young Australians maximize their productivity so they can then maximize their income and the Australian economy can maximize its potential and competitive position in the global marketplace. Does a draft catalyze undergraduate, graduate and professional education, or hinder it? (Remember, we're not talking about a "G.I. Bill," but a life-disrupting mandatory interregnum of one's college years.)

Fourth, the idea that young Australians will not serve at any salary is hogwash, just as it is hogwash here in the U.S. Pay a raw recruit a starting salary of, say, $150,000 per year plus benefits, and any supposed "shortage" of recruits would instantaneously vanish. Even for the military, it's as simple as supply + demand = equilibrium price.

Finally, the whole concept of conscription in an otherwise free society exposes an obnoxious contradiction. If you start conscripting people to defend the Australian — or the American — "way of life," then what exactly has that "way of life" become?

For Discussion: Israel, another "free society" with a "way of life," has a draft. Does its unique circumstance warrant a bye? Why or why not?

I didn't blog much about the Alito nomination and confirmation, mainly because I had little to say. Despite any reservations or disagreements I might have with the man's past opinions or judicial-political philosophy, he was indisputably qualified for the seat and deserved to be confirmed.

Stated differently, Samuel Alito is no Harriet Miers, and is also no Robert Bork.

The scary part is that, when a conservative-Republican Justice retires, and a conservative-Republican President nominates a conservative-Republican to replace her and submits the nomination to a conservative-Republican Senate, it's still a difficult, lengthy, controversial process.

Which invites the question: what in heaven's name will it be like if Justice John Paul Stevens dies while Bush is still President? (I once heard that he has stated publicly that he will never retire.) During the Alito confirmation process, we heard gobbledygook about Democrats asserting some fictitious "right" to a "balanced court."

Oh really? I see no quota provisions in Article III of the Constitution, and I thought a seemingly endless string of 5-4 decisions (or, worse, 4-4-1 plurality rulings) was a bad thing.

The idea that Justice O'Connor's seat had become a "female" seat is now dead and buried; the tradition of a "Jewish seat" is long gone, and so is the idea that that there is a ceiling on the number of Catholics that can sit on the Court. So apart from the Thurgood Marshall cum Clarance Thomas "black seat," there simply appears to be little or no constraint anymore on who can replace whom.

Which won't stop the John Kerry's and Ted Kennedy's of the Democratic Party from asserting that Justice Stevens' seat is somehow reserved for liberals only.

Bottom line: If Roberts and Alito were confirmation purgatory, then I don't want to see confirmation hell.

More thoughts at Moderate Voice, Hammer of Truth.

FUN FACT: Justice Stevens, generally regarded as the most liberal member of the Supreme Court, was appointed by Republican Gerald Ford.

I blogged back in 2004 about the ludicrous practice by the Olympicrats of giving Puerto Rico its own Olympic team. My position on Puerto Rico is simple: they perpetually huff-and-puff about independence, or statehood, or whatever, yet whenever it's actually put to a vote, they chose — surprise — the status quo. Amazing what some tax breaks can do to one's principles. In any event, the Puerto Rican agitators do not deserve to be taken seriously — so I don't.

Oh, and I don't take the Olympicrats — or those who would collaborate with them — seriously either.

In any case, we now have a humorous opportunity to see whether the Olympicrats will take the absurdity of granting nation-state status to "disenfranchised" American citizens to its illogical conclusion:

I did a little looking around and found out that not only does Puerto Rico have a team, but so does Guam and the U.S. Virgin Islands - all part of the United States.

The wheels started turning in my head. I knew that Puerto Rico, Guam, and the U.S. Virgin Islands, while parts of the United States, each only have one, non-voting delegate in the U.S. House of Representatives. The District of Columbia also only has one, non-voting delegate in the U.S. House. However, unlike those other American territories DC lacks its own Olympic committee.

That is until now. Together with some friends and co-workers who live in the District we've started a movement — we are seeking official recognition for the "District of Columbia Olympic Committee (DCOC)."

The "capitolists" (get it?) intend to participate in only one Olympic sport:

The first team we put together is the curling team. We figured that it was the only sport that really fit our collective athletic ability, plus there's usually beer at the end of the games. ... It's a lot like bocci, but on ice and it has been an Olympic sport since since 1998.

Okay, humor aside — the subject of (voting) congressional representation for residents of the District of Columbia?

It's quite simple really: too bad, so sad. You don't like it? Then either move or amend the Constitution.

The question of "one person, one vote" came up during the Alito confirmation hearings. It's an important constitutional principle. But so is the concept that the District of Columbia is not a state and therefore is simply not entitled to (voting) congressional representation.

If it needs to be said, then let's say it: The Senate stinks. North Dakota gets the same number of Senate seats that California gets? That makes no sense anymore.

But it's what the Constitution calls for. Don't like it? Amend it. It wouldn't be the first time.

And this really needs to be said, so let's say it (again): the Electoral College stinks. I've been saying that almost since my very first blogpost.

But it's what the Constitution calls for. Don't like it? Amend it. It wouldn't be the first time.

So okay, fine, disenfranchisement of D.C. residents stinks. Point conceded.

But it's what the Constitution calls for. Don't like it? Amend it. It wouldn't be the first time.

And good luck with that whole curling thing.

(Via Hammer of Truth.) More thoughts at Debate Link, Moderate Voice.

POST SCRIPT: On a completely unrelated subject, I would advise the would-be "capitolist curlers" to be careful about tossing around the world "Olympic" too flippantly. The Olympicrats don't like it — just ask the gays.

To review: The purported justification for sex offender registries is that sex offenders, and especially child molesters, have very high, or at least relatively high, recidivism rates that make them perpetual threats to the community and especially to children.

Perhaps, but what does that have to do with weatherstripping?

Raymond Houston, 45, of Cocoa, [a convicted sex offender] who is disabled and living on a fixed income, meets all of the requirements for [Brevard County, Florida's] Weatherization Program, a federally funded energy-conservation effort.

But Brevard officials added a prerequisite that prohibits Houston and other felons from participating. Attorneys for the American Civil Liberties Union, which filed the suit in Orlando, say that policy violates federal law.

Brevard leaders, however, refused to back down.

"We only have so much money to go around, maybe $10,000 or $20,000," Brevard County Commission Chairman Ron Pritchard said. "The list of applicants far exceeds the amount of money, and I'm not about to use scarce resources on somebody who was convicted of such a heinous crime.''

First, a required disclaimer. Of course a libertarian would oppose any program that subsidize weatherstripping, which is not a public good, generates no legitimate externalities and can therefore be a strictly private market. This is the Politics of the Warm Fuzzy Feeling with "Warm" in bold italic.

Having said that, given that the government is going to subsidize weatherstripping for the poor, what does ex-convict status have to do with it, even for sex offenses? How does singling out these economically disadvantaged individuals dovetail with the recidivism argument that started the whole sex offender mania?

Or is it not about recidivism at all, but just another opportunity to degrade the New Others? Because in factional politics, there must always be Others, preferably Others who can be easily marginalized and -- if possible -- demonized (see, e.g., gays).

And by the way, I have no doubt that Brevard County has no qualm about collecting taxes from heinous Mr. Houston. Just about handing it back to him when he qualifies.

Remind me again who's being heinous?

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As for the legality, it's a simple question with a not so simple answer. This policy is "discrimination" in the strictly neutral, clinical denotation of the word. Similarly situated people are being treated dissimilarly. However, since "convicted sex offender" is not a "suspect classification" within the meaning of the Fourteenth Amendment (even gays are not afforded that luxury), such discrimination is permissible if the government can show that the discrimination is "rationally related to a legitimate government interest." Usually rational basis review means an automatic win for the government, but I wonder if this policy is so unapologetic in its animus toward a disfavored group that a court would strike it down. I of course would strike it down.

That's my ruling -- any dissents?

(Via CrimProf Blog.)

I have blogged previously about the issue of pharmacists refusing to dispense the so-called "morning after pill" because the pharmaceutical could be viewed as an abortion-inducing agent.

Now what began as an intriguing hypothetical or isolated incident is gaining widespread political traction:

More than a dozen states are considering new laws to protect health workers who do not want to provide care that conflicts with their personal beliefs, a surge of legislation that reflects the intensifying tension between asserting individual religious values and defending patients' rights.

About half of the proposals would shield pharmacists who refuse to fill prescriptions for birth control and "morning-after" pills because they believe the drugs cause abortions. But many are far broader measures that would shelter a doctor, nurse, aide, technician or other employee who objects to any therapy. That might include in-vitro fertilization, physician-assisted suicide, embryonic stem cells and perhaps even providing treatment to gays and lesbians.

Refusing to treat gays? Remind me again how these people are trying to claim the moral high ground?

In any case, my position is unchanged. While it is tempting to side with the notion that the "right to practice in according with one's politics conscience" outweighs the "right to receive treatment" (or even to assert that the latter isn't even a true "right"), I still submit that there is, as a matter of contract law if not of ethics, a "right not to be blindsided." Choosing a pharmacy, let alone a health care provider, is often a lengthy, cumbersome task that takes into consideration a variety of factors, including the expectation that one will not later be turned away based solely on somebody else's "principles."

If pharmacists and other health care personnel want the legally protected ability to pass judgment on people, then is it really too much to ask that such prerogative be disclosed at the commencement of the professional relationship? So, for instance, when a customer tries to fill a first-time prescription, he is warned in advance that future prescriptions are subject to "pharmacist's discretion"? Or a fertility clinic being required to disclose, in its advertising, that gays need not call for an appointment?

Other industries include "full disclosure" as part of their ethical buffet. My industry is now manic about it. So if the concern is truly about "defending consciences," then why not adopt the simple, straightforward balancing of these solemn concerns of both providers and patients?

UPDATE: Here's an example of the issue in Illinois, where Walgreens is requiring its pharmacists to sign a pledge that they will dispense morning-after pills. The pledge reflects a new state law requiring all pharmacists to dispense any pharmaceuticals they have in stock regardless of any moral reservations they may have. Four Walgreens pharmacists are suing to have the law declared illegal.

In case you should have any reason to care, I have changed my blogging email address to:

kipesquire@yahoo.com

from

kipesquire@verizon.net

The mail links throughout the blog have been updated to reflect the change.

Carry on...

Sorry for the extended absence; the past few days have been consumed by real-world tasks.

First it was time for my bi-triannual eye exam. Slightly worse prescription, to be expected at my age. In the past I had worn transition lenses, but I've decided to scrap that idea and just have one pair each of regular glasses and prescription sunglasses.

So the all-in total for new lenses in one set, and a whole new set of sunglasses, net of all the add-ons and discounts, came to about $750. Which in and of itself does not annoy me.

What does annoy me is that I only elected to contribute $360 into my flexible spending account this year. I goofed.

But of course one is practically required to goof, because of the ludicrous "use it or lose it" rule regarding such accounts. The rule makes guessing your healthcare expenses analogous to The Price is Right: try to guess without going over. I've blogged against the asinine rule previously.

For those of you keeping score, flexible spending accounts are not the same as the "health saving accounts" that have been in the news recently and are likely to be a key point in the President's State of the Union Address this Tuesday. Totally different animal.

If the goal is to increase saving for health needs and to (partially) shift the responsibility for one's own heath care back to individuals and away from the government, then the easiest way to do that would be to scrap these silly, indecipherable HSAs altogether and simply reform flexible spending accounts, and especially to abolish the "use it or lose it rule."

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The rest of my Saturday was spent "on line" at the cable company picking up my new cable modem and then "on line" (get it?) installing, troublingshooting, uninstalling, reinstalling, cursing, re-uninstalling, drinking, and re-reinstalling the damn software. Until I realized that the connection was actually functioning perfectly all along and that what I was trying to install was the cable company's proprietary, AOL-ish, Earthlink-ish interface. Which I neither need nor want. Go figure.

Then, like an Alaska pork barrel project, came Phase II: switching from a wired to a wireless router. Which was also somewhat quirky and headache-inducing (I think because I was starting with the Centrino-based laptop rather than the desktop), but I eventually got everything up and running, which is why you're (finally) able to read this post.

Anyway, why did I switch from DSL to cable? Well, lots of reasons: no naked DSL here, easier to connect the Xbox 360 to Xbox Live, a few dollars cheaper and wee bit faster on the downloads.

In any case, I'm not qualified to launch into a grand post on the history of the wireline communications industry and the great "Cable versus DSL" wars. But suffice it to say that, although neither cable television nor telephony are perfectly competitive, laissez faire industries, it has been competition -- redundant, decentralized, greedy, "wasteful" competition -- that has made not just internet access, not just high-speed internet access, but wireless high-speed internet access (and, soon, mobile wireless high-speed internet access via Wi-Max) affordable -- indeed downright cheap. No politician, bureaucrat or would-be central planner could have done better. They could only have screwed it up even more than they have already.

So hooray for Time Warner Cable, even if their start-up disc sucks. And hooray for Verizon, even though I'm firing them. And of couse hooray for Dell and Cisco and Linksys and Microsoft and LG Samsung and all the other greedy capitalists who have made the Wireless Age possible.

A Stitch in Haste recommends the following report from the Congressional Research Service:

Constitutionality of Proposals to Prohibit the Sale or Rental to Minors
of Video Games with Violent or Sexual Content or "Strong Language"
An excerpt:

The Supreme Court has never ruled on the constitutionality of a statute that restricted minors' access to violent or sexually oriented video games, but every lower federal court that has ruled on such a statute has found it unconstitutional, or issued a preliminary injunction after finding that the law was likely to be found unconstitutional. Based on the holdings of these courts, it appears that, for a prohibition of the sale or rental to minors of video games with violent content to be upheld, the government would have to present empirical evidence that these games harm minors or cause them to become violent. The prohibition of the sale or rental to minors of video games containing sexual content, however, would seem more likely to be upheld without empirical evidence that such games harm minors.

The 12-page report provides a good overview of First Amendment law in the context of restricting speech in order to protect children and is suitable for non-lawyers.

The Court's jurisprudence in this area has been, for the most part, consistent with libertarian ideals — the government cannot restrict speech simply because it might have some hypothetical negative impact on children. Wouldn't it be nice if every existing or proposed infringement of our civil liberties, or every shrill demand that we "protect the children" were held to the same exacting standard of review?

The government should always be required to present a stronger case than a simplistic "maybe" or a dismissive "just trust us." Even when "it's all about the children."

Previous CRS Recommendations:
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

A congressional hack politician has announced that he will summon Google executives to committee hearings for doing what just about everyone else does -- trade with dictators:

Google will be called to task in Washington next month following a controversial decision by the internet search engine to launch a China-based version of its website that will censor results to avoid angering the country's Communist government.

The decision by Chris Smith, a Republican congressman from New Jersey ... represents the first signs of what could become a serious backlash against Google and other internet companies in Washington that are perceived as capitulating to the Chinese government.

Mr. Smith on Wednesday accused Google of "collaborating .. with persecutors" who imprison and torture Chinese citizens "in the service of truth."

This is, of course, utter nonsense.

I've expressed my disappointment with Google's decision already. But let's be honest: we all do business with China -- quite a bit of it. I never suggested -- because it cannot be suggested -- that what Google is about to do is somehow illegal. Despicable, perhaps. Unwise, perhaps. But not illegal. So Congress should butt out.

Not every headline requires a Congressional investigation; that's what we have the Blogosphere for.

A hat trick of real estate headlines:

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ITEM: I wasn't going to blog about the announcement by BB&T, a large regional bank, that it will cease writing mortgage loans to businesses acquiring property via private-for-private takings of the kind now permitted under the Supreme Court decision in Kelo v. New London, No. 04-108 (2005).

But it seems that every other libertarian blogger is chiming in to congratulate BB&T on its "principled" stance, so I'll join in.

But only sorta kinda.

As with the not-so-principled decision by Google to do business with the devil, I think the BB&T decision, while nominally something to applaud, is really just a rational, dollars-and-cents business decision rather than some lofty "stand on principles," the remarks of its Chairman notwithstanding.

Consider: BB&T admits that very little money is at stake here. But the money that the bank loans to potential targets of eminent domain, especially residential and small commerical mortgages and other loans, is undoubtedly much higher.

There used to be a saying: the last thing a bank ever wants to do is foreclose on a defaulted mortgage. Banks are in the lending business, not the realtor business -- at least they don't want to be. Taking over a bankrupt's home and trying to sell it, probably at a loss, is not good a business proposition. It's just a giant headache.

Well, it seems now that foreclosure is only the second-to-last thing a bank ever wants. There's now something even worse -- having the collateral on your mortgage seized for eminent domain. At least with foreclosure you have some opportunity to recoup the money owed you. But what recourse do you have if the government seizes the property and pays the owner less than what he owes on his mortgage to you? For the most part I suspect the answer is "too bad so sad."

So it may well be, based on probabilities and locations and political climates and such, that it's just easier for a bank to say: thanks, but we're not interested. It's too risky.

I'm not trying to dismiss BB&T wholesale as a mere bunch of hypocrites. In the War Against Kelo, every little bit helps. But I do wonder what else was said behind those closed boardroom doors.

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ITEM: So if BB&T is the Good Bank of the North, then here's the Wicked Bank of the East --

Some of the city's worst slumlords have turned to a single bank to finance their broken-down empires, a housing-advocacy group has found.

A report by Housing Here & Now identified 12 landlords included on the Department of Housing Preservation and Development's "problem-owner list" as financing their properties with mortgages from New York Community Bank.
...
The report was released as New York Community Bank seeks state and federal approval of its acquisition of Atlantic Bank of New York. [H]ousing advocates have asked regulators to block the acquisition until NYCB "cleans up its act."

MY TAKE: Of course this is nothing more than a petty shakedown -- expect demands, perhaps successful, for NYCB to donate money to this agitator group or to some other "anti-slum" initiative. In any case, it seems to me that the best way to eradicate slums is by making it easier, not harder, for landlords to get loans.

One more thing. All banks, and bank merger proposals, are subject to the terms of the Community Reinvestment Act -- a federal law that prohibits "redlining" (the practice of summarily denying all loan applications in economically disadvantaged neighborhoods) and in essence imposes "loan quotas" on banks. The "evil" New York Community Bank has earned an "Outstanding" designation by federal regulators for its CRA compliance record. Go figure.

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ITEM: One more, just to be fashionable --

A judge has ordered three notorious Canal Street-area landlords to shoulder responsibility for tenants who peddle phony Louis Vuitton handbags and other imitation products, court records show.

In the fashion accessories firm's latest victory, Manhattan Federal Judge Thomas Griesa issued a permanent injunction ordering Canal Associates to warn stores at seven of its buildings to stop selling fake goods or face eviction.
...
"Those seeking to purchase counterfeit Louis Vuitton goods on Canal Street must now face the danger of following a stranger down a dark alley or stairway," said Vuitton lawyer Nathalie Moulle Berteaux. "This serves as a deterrent to shoppers who fear for their safety."

MY TAKE: So the War on Knock-Offs is so urgent that we must make it not just illegal, but also physically dangerous to buy an imitation handbag?

In any case, I have a real problem with the idea of imposing landlord liability (in this instance potential contempt of court penalties) for not spying on monitoring the activities of their tenants, especially if there is an arms-length lease between the parties (e.g., the tenant isn't the landlord's nephew). It used to be the other way around -- we used the cherish the idea that landlords did not snoop into our affairs. That principle should not change. Winning the War on Knock-Offs is the responsibility of law enforcement, not landlords. The slippery slope potential is staggering (one quick example: dram shop liability).

I think I'm going to attend this one-day symposium on "The Future of Unenumerated Rights" at the University of Pennsylvania Law School on February 10.

So if I have any loyal readers in or around Philadelphia, and especially in or around Penn, and double-especially at this particular symposium, then I'd certainly love to meet for a drink.

Also, if anyone familiar with that area knows any cost-effective hotels close to the law school, feel free to comment. I'm generally a three-star hotel kind of guy — don't need anything too fancy.

UPDATE: I've actually decided not to go. Hopefully they'll webcast it.

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Switching, as I so often do, from law to economics:

Round-trip, New York to Philadelphia, one adult, advance purchase:

Greyhound: $34, 2.00 hours
Amtrak Regional: $98, 1.33 hours
Amtrak Metroliner: $180, 1.16 hours
Amtrak Acela: $185, 1.10 hours

And this is the only part of Amtrak that makes money! No wonder, if such pricing gaps are sustainable.

So the question becomes: if many or most people take Amtrak instead of Greyhound despite the relatively poor ratio of "more money for less travel time," then does that mean that bus travel is an inferior good? Or is it instead a question of "more money for more comfort"? I doubt anyone would argue that "comfort" isn't a normal good.

So open thread: bus or train?

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Speaking of switching from law to economics (or, in my case, vice versa), I wonder whether I'd be admitted to this program. With a JD and an MA in economics already, am I overqualified? Would I have to retake both the GRE and LSAT? Maybe I'll apply as a lark and see what happens.

Reason Magazine asserts that the current unregulated nature of the fertility industry is a good thing — that there is a basic right to donate or obtain sperm and eggs anonymously for the purposes of conceiving children and that there should be a right to buy and sell (as opposed to just "donate and obtain") sperm and eggs anonymously:

To anyone with an affinity for government regulation, the fertility industry is a monstrous organism evolving in the shadows of legislative neglect. Donor agencies largely set their own rules for the sale of genetic material: Some cater to same-sex couples, others strictly to heterosexual married ones. Many cap egg donor compensation at a paltry $3,000; others let donors set the prices, encouraging Olympic athletes and Ivy-leaguers to ask for many times that amount. Some agencies demand anonymity, others will fly donors across the country to meet hopeful parents. At its most individualized, egg donation is contractual agreement between donor and recipient, with the agency acting as broker.

Makes sense to me. Private people entering into private contracts related to (very) private matters.

Just one small detail is left out — the kid:

Even if the clinics work up the nerve to reveal their preferred solution, it's not one that will satisfy the grown children of anonymous donor agreements, who, according to the [New York] Times, suffer from something called "genetic bewilderment." But in this one aspect, perhaps, growing up the child of newfangled fertility advances isn't so different from growing up the old fashioned way.

This is, of course, utter nonsense.

There's a lot more at stake here than "genetic bewilderment." Disease screening and tissue or organ donation are also at stake. Medicine is increasingly becoming "applied genetics" and the idea that a person's desire, indeed his need, to know his biological lineage is not just a question of psychological well-being but of physiological well-being.

Another small detail is ignored by the pro-anonymity crowd, one that libertarians have no business overlooking. It is a basic principle of law, ethics and common sense that one person may not waive the rights of another. Yes parents have a limited exception regarding their minor children, but that exception abruptly ends when the child becomes an adult. Would anyone seriously argue that 60-year old parents can waive the rights of their 30-year old children?

Strictly private fertility contracts negotiated in a strictly private (i.e., unregulated) setting are all well and good, but no contract is ever binding on someone not a party to it. It is never proper libertarianism to claim that someone can be bound by a contract they never entered into, or that a third party's rights are "no big deal."

Children have a fundamental right to know the identity of their biological parents upon reaching the age of majority, pre-birth contracts to the contrary be damned.

That's my ruling — any dissents?

UPDATE: Defcon:blog has a thoughtful response, but also see my comment at his blog.

No fan of Senate Minority leader Harry Reid am I, but the White House has become just plain silly (or just plain desperate) in this attempted fisking of Reid's claim that the warrantless wiretap scandal is "domestic spying" --

--Domestic Calls are calls inside the United States. International Calls are calls either to or from the United States.

--Domestic Flights are flights from one American city to another. International Flights are flights to or from the United States.

--Domestic Mail consists of letters and packages sent within the United States. International Mail consists of letters and packages sent to or from the United States.

--Domestic Commerce involves business within the United States. International Commerce involves business between the United States and other countries.

Okay, but when one American spouse batters another American spouse while on vacation overseas, that's still "domestic violence." What's your point?

Eavesdropping on an American in America is domestic eavesdropping, regardless of where the other end of the conversation is located. Just how dumb does the White House think the American people are?

And keep in mind that, for some of us at least, it's not the wiretapping per se or the even the "domestic" part that really angers us. It's the warrantless, stupid. If you know that the "international" end of the call is al Qaeda, or even if you only have probable cause to think the "international" end of the call might be al Qaeda, then bravo, well done, you are a true defender of America ... now get a warrant, even if it's just a retroactive warrant (like the President originally said we were doing).

More thoughts at Whatever It Is, I’m Against It.

A man teeming with God's Love wants to express it in the same way Jesus would — on the stock market:

A pastor who threatened a national boycott against Microsoft and other major corporations for endorsing a gay rights bill urged supporters Tuesday to buy up the companies' stock and dump it to drive prices down.

Rev. Ken Hutcherson, pastor of Antioch Bible Church in the Seattle suburb of Redmond, said the stock-dumping plan had been part of his strategy all along.
...
He wants supporters to buy one or two shares over the next few months, then sell them May 1.

I think it would be a wonderful idea for Bigot Reverend Hutcherson to try this. I really hope he goes ahead with this plan...

...because pump-and-dump is illegal:

It shall be unlawful for any person, directly or indirectly ... To effect, alone or with one or more other persons, a series of transactions in any security ... with respect to such security creating actual or apparent active trading in such security, or raising or depressing the price of such security, for the purpose of inducing the purchase or sale of such security by others.

Of course, this section of the Securities Exchange Act of 1934 is not intended to apply to idiots like Bigot Reverend Hutcherson, but to so-called "boiler rooms" that might — unlike Bigot Reverend Hutcherson — actually achieve something nefarious. Still, I'd love to see a gay advocacy group file a class action against Hutcherson the day after the dump (the 1934 Act allows for private lawsuits as well as criminal prosecution). That would be fun, especially when Hutcherson's defense would likely be "we had no impact on the market." Heh.

On the other hand, Bigot Reverend Hutcherson could try a different tactic, one that many agitators try — shareholder votes. Back when I used to own Philip Morris Altria stock, I remember that there was some gaggle of nuns who owned I think exactly one share of stock and every year put a shareholder referendum on the ballot calling for Philip Morris to, um, stop selling tobacco. You can imagine how such votes play out each year. Heh.

Also, no word yet on whether Bigot Reverend Hutcherson will also try to smite Microsoft for its true sins rather for the faux sin of not hating gays.

Meanwhile, here are some fun facts about Microsoft:

--shares outstanding: 10.9 billion
--average daily trading volume: 6.6 million shares
--market capitalization: $288 billion
--annual revenue: $39.8 billion
--special one-time dividend paid December 2004: $32 billion

Good luck trying to pump-and-dump that.

More thoughts at Good As You.

(Cross-posted at Spectrum Bloggers.)

"In any compromise between food and poison, only death can result."
--Ayn Rand

"Don't be evil."
--Google Motto

So much for the idea that Google was, in fighting a federal subpoena for search records to bolster a law already declared unconstitutional, being some sort of libertarian behemoth that stood up for principles.

Yeah right:

Online search engine leader Google Inc. has agreed to censor its results in China, adhering to the country's free-speech restrictions in return for better access in the Internet's fastest growing market.
...
Because of government barriers set up to suppress information, Google's China users previously have been blocked from using the search engine or encountered lengthy delays in response time.
...
To obtain the Chinese license, Google agreed to omit Web content that the country's government finds objectionable. Google will base its censorship decisions on guidance provided by Chinese government officials.

Google now joins Microsoft and Yahoo! in conspiring with the enemy in the War on Tyranny.

Apologists will likely insist, as they did with Microsoft, that "any web access is good" for China's oppressed citizenry. Hogwash. Google is no different from the Swiss banks that financed the Third Reich, and will in fifty years be apologizing for its myopia just as those collaborators continue to do to this day.

It is not a betrayal of capitalism to chastise those capitalists who sell out to dictators. (And besides, selling to the enemy is bad managing anyway -- the sooner the Chinese dictatorship falls the sooner China will really be an "emerging market" -- and an emerging free market is always better for business than an emerging oppressed market).

Shame on Google. Shame.

More thoughts at Hammer of Truth.

ITEM: That which should be, might not be:

The New York State Board of Regents has imposed a moratorium on new commercial colleges in the state, in the face of explosive growth in their enrollments and increasing reports of problems.

The freeze comes as state education officials, the governor and lawmakers are examining ways to tighten regulations or financing of this fast-growing sector of higher education, which is consuming more than $100 million in state aid.
...
The flow of public money to such schools is one reason they are drawing scrutiny. A recurring question is whether some schools are enrolling students who have little hope of graduating simply to capture the financial aid.

MY TAKE: That last paragraph is key -- the only reason there is fraud among these private colleges is because the state is making it so easy by throwing so much taxpayer money around. In any case, consider exactly what the Board of Regents has done -- the current market participants are behaving sub-optimally, so let's keep them but prevent newcomers from setting up shop, which could actually clean up the industry. Brilliant.

These for-profit schools exist for another reason besides bilking the government. Some of them actually provide the education that the public school system is unable to provide.

The answer is for Albany to get its own house in order, not to disrupt an important and legal market. Remember, for-profit education is not illegal -- fraud is illegal. Why throw out the baby with the bathwater?

More thoughts at Becker-Posner.

---

ITEM: That which should not be, might be:

As yet another auto plant prepares to shut is doors, the mayor of Flint, Michigan has come up with a radical -- and possibly illegal -- plan: a city-run assembly plant.
...
"We will (build) our own manufacturing plants that the city funds," [Mayor Donald Williamson] said. "We are going to specialize in nothing but truck accessories."
...
It's not clear if the city would be allowed to run a for-profit enterprise, and many have questioned the rationality of the plan.

MY TAKE: The question of whether such a plan is legal is a side issue. What strikes me about this asinine proposal is the arrogance that this local hack politician displays toward running a major factory in the Twenty-First Century, as if it were a paper route or a bake sale. It's a new twist on the old Marxist lie -- that literal "capitalists" (i.e., those who actually own and operate capital) are zero-value-added "exploiters" who can be summarily replaced with no impact to the firm itself. To socialists like Williamson, the need for entrepreneurship does not exist, the need for innovation does not exist, the need for market research does not exist, the need for risk-taking does not exist. Just throw the switch, pass Go and collect 200 jobs. Only a politician could display such limitless hubris.

(Via The Perfect Substitute.)

A while back the FDA considered — and rejected — a proposal to allow a cholesterol-fighting statin to be sold over-the-counter. I was ambivalent about the plan; it's easy to self-medicate for symptom relief such as headaches, athlete's foot or coughs, but "high cholesterol" is asymptomatic and non-binary (i.e., not a simple case of "you either have it or you don't").

I do, on the other hand, wholeheartedly support this de-scripping proposal:

A pharmaceutical company that seeks federal approval for over-the-counter sales of a prescription diet pill that blocks the absorption of fat faces questions on the pill's potential for creating vitamin deficiencies and encouraging abuse.
...
An FDA reviewer found [orlistat] is a "safe and effective weight loss agent," but held off on recommending whether the ... advisory committees should in turn recommend to the FDA that it approve the drug for sale without a prescription.

The drug acts by blocking the absorption of about one-quarter the fat a patient consumes. That fat is then passed out of the body in stools, which can be loose or oily as a result.

Remember olestra? Orlistat is almost like an olestra pill — it makes the fat you eat undigestible. The upside is that the fat can't go into your body; the downside is that the fat goes somewhere else, as anyone who has eaten too many olestra potato chips knows.

In any case, since "overweight" is a self-diagnosable condition, like a headache but unlike high cholesterol, it seems to me that there is no reason not to de-scrip it.

Silly libertarian me:

[T]he primary concern with the drug is its potential to create vitamin deficiencies, since its use also would block absorption of fat-soluble vitamins like D, E, K and beta-carotene.
...
Orlistat may also block some drugs, including cyclosporine, used to prevent rejection of kidney, liver and heart transplants. ... Furthermore, just 35 percent of diabetes patients in a study correctly stated the drug was not appropriate for them to use, according to agency documents.

The regulatory agency also is concerned about increased potential for abuse or misuse of the prescription-free version of the drug, especially among bulimics or binge-eaters who could develop vitamin deficiencies due to chronic use of the drug.

Given the criticism (deserved or not) of the FDA in the COX-2 mess, I somehow suspect that there is now an overarching aura of the Precautionary Principle at the FDA (i.e., always err on the side of caution). This would argue against de-scripping the drug.

Moreover, it is always a fundamental characteristic of bureaucracies to see only those who need protection from themselves, not those who don't. Millions of people could benefit from de-scripping Orlistat. But a few diabetics, transplant patients and bulimics might incur some negative consequences from the drug. So keep it behind the pharmacist counter. Just in case.

Maybe I'm too cynical and the FDA will vote in favor of personal choice and personal responsibility. Or maybe the War on Fat will outweigh (no pun intended) the War on Self-Reliance and the "obesity crisis" will compel the FDA to "do anything" to get people to lose weight.

Stay tuned...

POST SCRIPT: If any of my medically literate readers know of a better term than "de-scripping," then please leave a comment. "Over-the-counterizing" sounded far worse.

---

On a related note, the FDA is also considering saving the planet from dropping dead by telling asthmatics to drop dead:

An advisory panel voted 11-7 Tuesday to recommend that the Food and Drug Administration remove the "essential use" status that Primatene Mist and other similar nonprescription inhalers require to be sold, spokeswoman Laura Alvey said. Final revocation of that status would mean a de facto ban on their sale.
...
Wyeth Consumer Healthcare estimates that 3 million Americans use Primatene Mist for mild or intermittent cases of asthma, spokesman Fran Sullivan said.
...
The over-the-counter inhalers proposed to be banned contain the drug epinephrine along with chlorofluorocarbons, or CFCs, which propel the medicine into the lungs of asthmatics.

MY TAKE: Even taking as a given the assertion that CFCs generate externalities in the form of ozone layer erosion, can the collective squirts of even all the world's Primatene users really pose a sufficient threat to the planet to deny them the relief that the product offers? Zero tolerance for any and all CFC use is not an enlightened, externality-correcting policy. It's overkill in the name of warm-fuzzy-feeling policy (or, if you're an asthmatic on Primatene, a warm-fuzzy-wheezing policy).

More thoughts at Market Power, Malcontent.

Apparently the answer is yes when the plaintiff is super-rich:

Donald J. Trump yesterday filed a lawsuit against New York Times reporter Timothy L. O'Brien and Warner Books, Inc., alleging that O'Brien's book about Trump, TrumpNation: The Art of Being the Donald, published by Warner in October 2005, defamed the world-famous businessman, real estate developer and public personality.

In the lawsuit, Trump alleges that O'Brien and Warner knowingly made egregiously false and malicious statements about Trump, his family, his personal life and his business dealings, including statements grossly misrepresenting Trump's net worth. Those defamatory statements included statements that O'Brien claimed were based on three purported anonymous sources with "direct knowledge" of Trump's finances, that Trump "was not remotely close to being a billionaire," and that his "net worth was somewhere between $150 million and $250 million."

Trump claims his true net worth is approximately $2.7 billion.

Some hasty stitches:

--As a "public figure," Trump is subject to the hurdle of New York Times v. Sullivan, 376 U.S. 254 (1964), and Curtis Publishing v. Butts, 388 U.S. 130 (1967), that requires that the statement not only be false, and not only be defamatory, but must have been made with "actual malice." It's hard to show that an analysis -- an estimate -- is "false." It may be mistaken, but "false" is much harder to show. To show an analysis was "maliciously" false would be practically impossible. (Compare: an opinion is never actionable as defamation.)

--Trump is claiming compensatory damages of $2.5 billion. Huh? How can he possibly claim that he has suffered direct, tangible, measurable financial loss of $2.5 billion? Did he lose a book deal, or another season of "The Ass-Kisser Apprentice"? The punitive damage claim -- another cool $2.5 billion -- is also a ludicrous headline grabber, but is not as patently absurd as the compensatory claim, which is a flagrant abuse of process.

Trump can whore himself out on NBC as much as he likes. But his portfolio of properties does not include courthouses. If he wants to sue, then fine, go ahead and sue. But lose the histrionic grandstanding damage claims and keep it real (unlike his TV show).

More thoughts at Concurring Opinions, WSJ Law Blog.

I've blogged previously about what I call the War on Sniffles — heavily restricting or even outright banning over-the-counter decongestants that can be used, in bulk, to manufacture methamphetamine.

Well, let's see — with all the required "post hoc ergo propter hoc" boilerplate — how well such programs have worked:

In the seven months since Iowa passed a law restricting the sale of cold medicines used to make methamphetamine, seizures of homemade methamphetamine laboratories have dropped to just 20 a month from 120.
...
But [officials are] now worried about a new problem: the drop in home-cooked methamphetamine has been met by a new flood of crystal methamphetamine coming largely from Mexico.
...
The University of Iowa Burn Center, which in 2004 spent $2.8 million treating people whose skin had been scorched off by the toxic chemicals used to make methamphetamine at home, says it now sees hardly any cases of that sort. Drug treatment centers, on the other hand, say they are treating just as many or more methamphetamine addicts.

And although child welfare officials say they are removing fewer children from homes where parents are cooking the drug, the number of children being removed from homes where parents are using it has more than made up the difference.

Any sophomore economics student knows the concept of "substitution effects." Raise taxes on beer, and some people will switch to distilled spirits. Ban smoking, and some people will use chewing tobacco. Make it impossible to manufacture homemade meth, and some people will switch to ice.

Which is not to say that the net effect will always be bad. But it does mean that the extent such a program is "good" will always be overstated.

And of course, all the people who go without their decongestants, either because they refuse to submit to having their purchases tracked or simply because they don't want to go through the hassle of dealing with a pharmacist, incur the cost of this policy too. But all those sniffles will never make their way into a government cost-benefit analyis of a decongestant restriction.

When supply is curtailed, demand doesn't simply pack up and go home. New supply — sometimes worse supply — simply fills the void.

Stated differently, be careful what you try to ban — you might succeed.

More thoughts at Hit & Run.

General Michael Hayden, the number two intelligence official in the nation and a former director of the National Security Agency, the bureaucracy responsible for the warrantless wiretapping scandal, has inadvertently neutralized a White House spin tactic by insisting that warrantless wiretapping isn't just about "in time of war" --

"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the al-Qaida operatives in the United States," Hayden said...

Now wait just a minute. The entire purported legal justification for warrantless wiretapping was that we are in a post-9/11 War on Terror and that the ability to spy on Americans gather foreign intelligence was somehow "inherent" to the President's wartime authority as benevolent dictator Commander-in-Chief. So now the Administration is switching to a purely consequentialist position? The Constitution and the law and the Congress and the courts be damned, all that matters is that "it works"? In peacetime as well as war?

The more this Administration tries to defend the program, the more indefensible it becomes. Another Haydenism:

Hayden ... told the National Press Club in Washington that the program is "targeted and focused" on al Qaeda and does not cast a "drift net" over Americans' telephone and e-mail communications.

Now wait just another minute. If the program (which now has a name -- Terrorist Surveillance Program) is so "targeted and focused" and if it's true to its new namesake (i.e., only monitoring communications involving those known or reasonably suspected to be terrorists), then why is it so hard to get a warrant, even retroactively?

The wiretap two-step. The song may change, but the dance stays the same.

Consider the following hypothetical: New York State, in furtherance of some otherwise constitutional state interest (e.g., to fight compulsive gambling), makes it a crime, an actual criminal offense, to leave the state for the purpose of gambling. So, for example, my trip last week to Foxwoods would have been illegal.

Unrealistic? Unfair? Un-American? Unconstitutional?

Yes, yes, yes and yes.

Yet supposed law school prodigy Will Baude thinks exactly such a scenario could arise if Roe v. Wade, 410 U.S. 113 (1973) (really Planned Parenthood v. Casey, 505 U.S. 833 (1992)) were overturned:

States could make it illegal to cross state lines in order to abort a fetus... While the Supreme Court has recognized a constitutional right to travel across state lines, it has also recognized exceptions.
...
Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah's law-enforcement officials from interfering with her decision to get one.
...
The precedents are muddy, the standards unclear, and so it is almost impossible to know how a future Supreme Court would resolve the matter.

This is, of course, utter nonsense. It's not just wrong, it's flunk-the-bar-exam wrong.

There are at least two reasons why Baude's doomsday scenario could never arise in a post-Roe world:

1. All state police power is local. End of discussion. A state can only criminalize conduct within its borders. There are, contrary to Baude, no exceptions. Ever. Baude's examples of "long-arm jurisdiction" are completely misplaced. "Long-arm jurisdiction" is exactly that — a matter of jurisdiction, the ability to reach an out-of-state defendant and bring him back into the state to prosecute him for local crimes. Long-arm jurisdiction does not equal the ability to rewrite another state's penal code. (In fact, long-arm jurisdiction is primarily a civil litigation concept with little bearing on criminal prosecutions.) In any event, as my Conflict of Laws professor put it: "One state cannot simply throw its laws into another state." New York cannot make it a crime to gamble in Atlantic City, Virginia cannot make it a crime to pay for sex with a prostitute in Nevada, and Utah could not make it a crime to have an abortion in a post-Roe Rhode Island.

2. Article IV Privileges and Immunities. Baude acknowledges that there is a "fundamental right to travel." Let's go to the source:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

So what are "privileges and immunities"?

Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State..."

--Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230) (1823); accord, U.S. v. Wheeler, 254 U.S. 281 (1920).

What part of "otherwise" is unclear? Is Baude suggesting that overturning Roe/Casey also includes, just for flavor, overturning Corfield and every Supreme Court case that has embraced it? Yeah, right, good luck with that.

Baude's last-gasp argument — that a state could place a fetus into "protective custody" — does not require a jurisprudential response; common sense alone is required to dismiss it wholesale. But if you want a jurisprudential response, then see the Fourteenth Amendment:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Life may begin at conception, but the Fourteenth Amendment does not.

---

Switching from the legal to the political, Baude makes another absurd assertion:

It's unlikely that Congress would pass a comprehensive federal ban on or right to abortion.

Oh really?

I hope Baude is referring to the prospect of a Democratic filibuster of such a bill, which is the only plausible justification for such a statement (and which is anything but certain in future sessions of Congress).

Does anyone seriously doubt that, if Roe/Casey were overturned, then the conservatives in Congress would, within a matter of hours, introduce a "Federal Right to Life Act"? After all, these are the same conservatives who are perfectly willing to perpetually consume congressional time and resources on a Federal Marriage Amendment, which is infinitely more futile than a mere anti-abortion statute would ever be. How's the saying go — "it deserves an up-or-down vote"?

Radley Balko, another non-lawyer who spewed much the same gobbledygook a while ago, anticipated this point and observed that, to truly "leave abortion to the states," the Supreme Court would not only have to overturn Roe/Casey, but would also, in a totally unprecedented (and impossible) example of (true) judicial activism, have to proscribe Congress from passing such legislation. (For more, see here.)

I guess that's the difference between a D- and an F.

More thoughts on the Baude op-ed piece at De Novo, Running Scared Fritz Feds, Abuse of Discretion.

I recently posited a quick litmus test for determining whether someone is a libertarian.

Well, here's a test to see whether someone is a libertarian or a conservative: Review this Human Events list of the supposed "Top 10 Supreme Court Decisions That Should Be Reversed" and see how many you agree with. A conservative would agree with all or most of them; a libertarian would scratch his head at many of the choices (not all, but most).

Speaking of litmus tests, I suppose that, to be a proper (i.e., dogmatic) conservative, it's mandatory that Roe v. Wade top any such list. Ditto probably for Lawrence v. Texas being an automatic Number Two.

In any case, here is my list (in descending order) of the ten worst Supreme Court decisions that are still good law. See if you can sense a pattern. And if you like my list more than the Human Events list, then congratulations — you're a libertarian and not a conservative.

1. McCulloch v. Maryland, 17 U.S. 316 (1819)
--Rendered the Necessary and Proper Clause an expansion of, rather than a limitation on, Congressional power and laid the groundwork for changing the default standard of judicial review from strict scrutiny to mere rationality.

2. The Slaughterhouse Cases, 83 U.S. 36 (1872)
--Rendered the Fourteenth Amendment Privileges or Immunities Clause a nullity and delayed the incorporation of the Bill of Rights to apply to the states and not just to the federal government.

3. Wickard v. Filburn, 317 U.S. 111 (1942)
--Rendered the Commerce Clause a nullity (or, worse, a monstrosity) and initiated the entire federal regulatory leviathan.

4. University of California Regents v. Bakke, 438 U.S. 265 (1978) and progeny, especially Grutter v. Bollinger, 539 U.S. 306 (2003)
--Rendered the Equal Protection Clause a nullity in the context of higher education by permitting reverse discrimination in college admissions in the name of creating "diverse" environments.

5. Kelo v. New London, No. 04-108 (2005)
--Rendered the "public use" clause of Fifth Amendment eminent domain a nullity.

6. Buckley v. Valeo, 424 U.S. 1 (1976) and progeny, especially McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
--Rendered the First Amendment less than absolute in the context of campaign advertising and financing.

7. Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
--Reinforced the rendering of the First Amendment less than absolute in the context of truthful commercial advertising.

8. The Supreme Court's Entire Fourth Amendment Jurisprudence
--Almost every search-and-seizure case the Court hears results in a new exception to the Fourth Amendment. Exceptions become the rule, and the rule becomes the exception. The Fourth Amendment may not yet be a nullity, but it is essentially a "Swiss Cheese" amendment, since it is now so full of holes.

9. Korematsu v. U.S., 323 U.S. 214 (1944)
--Elevated the War Power of Congress and the Commander-in-Chief Power of the Executive above the Fifth Amendment Due Process Clause in the context of national security. Note that Korematsu is, technically, still good law; it was never expressly overturned. That is not to say that we are likely to bring back internment camps any time soon. On the other hand, given the current Administration's cavalier attitude toward civil liberties in a time of threats to national security (i.e., war), the legacy of Korematsu must not be forgotten. (See also this post.)

10. Baker v. Nelson, 409 U.S. 810 (1972)
--A non-case by the Court, technically a "dismissal for want of a substantial federal question." This non-ruling, issued shortly after Loving v. Virginia, 388 U.S. 1 (1967), is occasionally used, incorrectly, to assert that the Supreme Court has expressly held that there is no constitutional right to same-sex marriage. That is patently false; for details, see my previous post. This non-ruling has been rendered a nullity by other Supreme Court cases that have clarified and expanded upon Loving, especially Zablocki v. Redhail, 434 U.S. 374 (1978), but still gives anti-gay bigots a tool, albeit a blunt one, when attempting to confuse the issue.

Special Bonus Case:

11. Bush v. Gore, 531 U.S. 98 (2000)
--I include Bush v. Gore not because I believe it was incorrectly decided, but rather because in my view the Court should have declined, on political question grounds, to hear the case at all. Taking the case seriously damaged the Court's reputation, especially in the eyes of those who were upset that the Court prevented fraudulent Gore voters from stealing the election. Had the Court sidestepped the issue, the election would still have gone (correctly) to Bush, since the Florida legislature (or, if necessary, the House of Representatives) would have sided with Bush anyway. The Court should not have sullied itself by involving itself with that unfortunate incident.

Hat tip to Rossputin — but be sure to read my response to his view that the famous "Footnote 4" of U.S. v. Carolene Products, 304 U.S. 144 (1938) is the worst Supreme Court decision of all time.

Here are three totally unrelated examples of creative anti-gay bigotry to show how subtle, or not so subtle, it can sometimes be.

---

ITEM: How do you measure a life? Or a death?

Rejecting an emotional videotaped plea from a lesbian police lieutenant on the verge of death, Ocean County [New Jersey] freeholders declined once again on Wednesday to approve a resolution that would let county employees pass on their pension benefits to domestic partners.

For more than a year, the freeholders have repeatedly refused to consider the resolution, and their opposition has become increasingly controversial over the past few months.
...
Freeholder John C. Bartlett Jr. said the cost would be too high. Freeholder John P. Kelly, denying that Lieutenant Hester's sexual orientation was an issue — over shouts of derision from the audience — said the domestic partnership law was unfair because it did not let siblings or other relatives not married to each other share benefits when they lived together. But members of the crowd, holding signs declaring "Don't Let Laurel Hester Die Like This," seemed to find the argument disingenuous; several people chanted, "You have the power, you have the power."

MY TAKE: They may have the power, but power corrupts. And bigotry corrupts absolutely. I don't know which is worse, the idea that "it costs too much" and "a lifelong same-sex partner is more like a sibling than a heterosexual spouse" are considered legitimate arguments, or the alternative explanation — that the freeholders are simply insulting our intelligence. Shame on them regardless.

UPDATE: The public outrage seems to have worked and the freeholders now appear set to grant benefits to same-sex domestic partners.

---

ITEM: What is the message of Brokeback Mountain?

If Brokeback Mountain had really been a love story between two gay men, it would have been much shorter. Both the cowboys, after discovering their sexual attraction to each other, would have simply come out of the closet, moved to San Francisco, opened a boutique that specialized in boots and stirrups and other leather gear, and would have lived happily ever after. The poignancy of their story lies precisely in the fact that neither of the two heroes can escape by this route. It is completely shut off for them. That is the reason Brokeback Mountain looms so expressively throughout the movie — it is the only place where they can love each other and still remain men in their own eyes.

MY TAKE: That is way too much overthinking — the mountain is more than "the only place where they can love each other and still remain men in their own eyes." It is the only place where they can love each other and stay alive. Brokeback Mountain is set in Wyoming. Gays were being slaughtered in Wyoming long after the pre-gay-rights period covered by BBM. In Wyoming, then and even now, to stay in the closet and being forced into a sham straight life is often not merely a matter of staying macho, it's sometimes a matter of life and death.

---

ITEM: Nothing brings out the "gay lifestyle" better than the "prison lifestyle" --

A bitterly disputed, government-sponsored study has concluded that rape and sexual assault behind bars may be rampant in movies and books but are rare in real life.

When inmates have sex, it is usually by choice, and often engaged in as a way to win protection or privileges, said Mark Fleisher, a cultural anthropologist who specializes in prisons and crime at Case Western Reserve University in Cleveland.
...
"Prison rape worldview doesn't interpret sexual pressure as coercion," he wrote. "Rather, sexual pressure ushers, guides or shepherds the process of sexual awakening."

MY TAKE: In other words, men who have sex with men in prison must of course be repressed gays — not violent heterosexual sociopaths — since straight males, even violent straight males, would never rape other male prisoners. Right? Normal (i.e., heterosexual) men only rape women; male-on-male rape is just another form of homosexual conduct (i.e., homosexual deviancy). Right? (Via CrimProf Blog.)

(Cross-posted at Spectrum Bloggers.)

New York City is in the process of reviewing proposals to wire its 277 subway stations for cell phone service.

Which invites the question: are subway cars next?

Some people hope not:

"We are losing our peace and quiet," said Miguel Velasquez, 34, of Fresh Meadows, Queens. "It's yet another intrusion on our daily commute. What's next, loud commercials on the PA system?"
...
[O]fficials yesterday assured riders that the public would be involved in any decision to expand into the tunnels. "That would be different," MTA spokesman Tom Kelly said. "We'd have to gauge what the interest is."
...
None of the companies would discuss the details of the proposals, but at least some are believed to address how to expand service into the trains at a later date.

For a taste of what's to come, longtime riders on the commuter rails say one need only take a trip on the Long Island Rail Road or Metro-North, which have become involuntary party lines despite a decade-long campaign to improve passengers' cellphone etiquette. "It used to be you could read a book or cop some Zs," said Gary Wilson, 36, who commutes from Norwalk, Conn. "The subway would be worse, because you're absolutely on top of each other."

There it is — a classic problem of negative externalities. The use of cell phones in cramped quarters imposes a cost on those who do not receive a benefit. Hence, as any sophomore economics student could (hopefully) tell you, the result will be "overconsumption" of the good (i.e., too much talking).

But since all utility is subjective, there is no easy way to balance the benefits to cell phone users against the costs to non-users. How much does Person A want to talk on a subway car? How much does Person B want not to have to listen to Person A's cell phone conversation (or, my pet peeve, retarded ringtones)? How do you measure such wants and compare them against each other?

When the setting is a private one, the decision is (or should be) up to the property owner. This is the travesty of smoking bans for bars — there is no such thing as "smokers rights," nor is there such a thing as "non-smokers rights." There are only property rights. When property rights are respected, externalities become moot.

But a subway car is not a bar and is of course not private property. So the externalities become an issue. And no matter how this issue plays out, someone's preferences will be frustrated. Someone's preferences will be arbitrarily deemed superior to someone else's preferences. Someone will be arbitrarily deemed more important than someone else.

Such is the nature of public goods. And bureaucracies. And politics. And that is why their presence should always be kept to the barest possible minimum.

(As for my own subjective preferences, it seems to me that if you are important enough to require perpetual cell phone access, then you are also important enough to take a cab. But that's just me.)

The best way to help the poor is by not taxing them.

I've made this point repeatedly in the context of Social Security reform -- the lower half of households by income pay no federal income tax, but they do pay Social Security tax (and Medicare tax) on every single penny they earn. No exemptions, no deductions.

Meanwhile, it is often argued that sales taxes are also unfair to the poor, since they are supposedly regressive -- the poor spend a greater fraction of their income than the rich, hence a tax on spending hits them disproportionately.

To address the phenomenon, most states exempt groceries from their sales tax. Many also exempt clothing and other "necessities."

Mississippi -- which has lots of poor people -- is, for some reason, one of the few states that does not exempt groceries from its sales tax. In fact, it has the highest state sales tax in the nation -- seven percent. Go figure. Mississippi also has one of the lowest cigarette taxes in the nation.

So, one might think that, if you were a politician in Mississippi who cared about the poor, you would consider swapping lower grocery taxes for higher cigarette taxes.

Or not:

Gov. Haley Barbour vetoed a bill Wednesday that would phase out a state sales tax on groceries and increase the tax on cigarettes.

"It's irresponsible to cut Mississippi's budget revenue while we're trying to recover from Hurricane Katrina," the Republican said.
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The bill, which zipped through the Senate and House at the start of the 2006 session, would eliminate the 7 percent grocery tax by 2014.

Officials say Mississippi has the highest state grocery tax in the nation -- but one of the lowest cigarette excise taxes, 18 cents a pack. The bill also would increase the cigarette excise tax to 75 cents a pack this July 1 and $1 a pack a year later.

One might wonder why Barbour would veto this tax revision.

Or not:

Barbour, a former Washington lobbyist for tobacco companies, called the proposal "ill-conceived, barely researched, poorly timed and passed in great haste."

So much for the democratic process and the "will of the majority."

Stated differently: be careful whom you vote for -- you might elect him.

I'm not a tin foil hat type, but if I were, I'd sure be uppity about the timing of the audio message purportedly from Osama Bin Laden assuring America and the world that more attacks are in the works but that they could be averted via some sort of "truce."

Just when the outrage (and the criticism by legal analysts) over the warrantless wiretapping scandal is gaining momentum, and just when Vice President Cheney is issuing statements insisting that the program is "vital," voila: here's a recording — open-ended, nebulous and undated — of the Terrorist-in-Chief saying exactly, exactly, what an apologist for the NSA program would want him to say, exactly when he would want him to say it.

How convenient.

So too with the "truce" gobbledygook — "See, they're only offering a truce because we're winning. The program works. We need to continue it. You don't want another 9/11, do you?"

How convenient.

But like I said, I'm not a tin foil hat type. The Occam's Razor answer is not that this is a vast White House conspiracy, but simply a narrow al Qaeda conspiracy. The timing isn't just good for the Administration, it's also good for the terrorists. Remember, the goal of the Islamofascists is not really to destroy us — they can't and they know it. The simply want to destroy our way of life.

And, considering the nature of the NSA scandal and the other collateral damage to our civil liberties resulting from the PATRIOT Act and the other prongs of the War on Terror, some might argue that the terrorists are succeeding.

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Meanwhile, Attorney General Alberto Gonzales has issued a 42-page, single-space document attempting to defend the legality of the NSA warrantless wiretap program. Of course, when the story first broke, we were told that the President's authority in the area was "inherent." So "inherent" that a major independently prepared report for Congress has said otherwise, and so "inherent" that a 42-page, single-space document is needed to clarify the "inherent" authority. Go figure. (PDF available here.)

The warrantless wiretap scandal has pushed another Fourth Amendment issue off the radar screen, namely New York City's random suspicionless searches at subway entrances and on buses.

Any argument that those searches are permissible presumes that they are in fact effective — a ludicrous presumption of course given the way the program is structured. A useless search can never be reasonable — and can therefore never be constitutional.

Keep that in mind when reading this:

Dogs are acclaimed for detecting minuscule amounts of myriad compounds. Their noses are 100 times to 10,000 times more sensitive than human noses, depending on the scent. And they can identify particular odors within a complex mixture — which should be useful for detecting explosives, since many are a potpourri of scents.
...
There's nothing wrong with using dogs to walk the subways to deter crime and make people feel better. But their noses can't be relied on there. "I wouldn't want to be the one who put it out to the public that the emperor has no clothes," the head of a large urban bomb squad told me. But "dogs do not function in the way everyone thinks." It is, quite simply, "bullshit," he says, to think that dogs can walk through subway cars, or sniff people entering turnstiles, and detect whether they've brought explosives along for the ride.

In other words, every single penny being spent on training dogs and dog handlers to patol public transportation — the TSA alone is spending $2.7 million per year — is being