A Stitch in Haste

Oh Brave New Candidate:

Massachusetts Gov. Mitt Romney, a 2008 Republican presidential hopeful, said on Thursday his administration's new restrictions on stem cell research are aimed at heading off an "Orwellian" future.

The state's Department of Public Health this week issued regulations banning the creation of embryos for research purposes.
...
"I believe it crosses a very bright moral line to take sperm and eggs in the laboratory and start creating human life," Romney told reporters. "It is Orwellian in its scope. In laboratories you could have trays of new embryos being created."

I suspect Governor Romney means, not "Orwellian" but rather "Huxleyan" ("Huxleyian"?):

From the Social Predestination Room the escalators went rumbling down into the basement, and there, in the crimson darkness, stewing warm on their cushion of peritoneum and gorged with blood-surrogate and hormones, the foetuses grew and grew or, poisoned, languished into a stunted Epsilonhood. With a faint hum and rattle the moving racks crawled imperceptibly through the weeks and the recapitulated aeons to where, in the Decanting Room, the newly-unbottled babes uttered their first yell of horror and amazement.

You see, an Orwellian world is one without privacy rights, and one dominated by censorship, revisionist history ("memory holes"), government control of the dictionary ("Newspeak"), never-ending wars against ever-changing enemies, and so on.

In other words, the world of George W. Bush (and, no doubt, a potential President Romney).

So for the Massachusetts Mormon to warn about an "Orwellian" future, is, well, a bit Orwellian. Go figure.

Don't people read the classics anymore?

Care to guess the shape of the demand curve for iced coffee?

Starbucks announced on Tuesday that it was withdrawing an offer of free iced coffee to a limited number of employees and their friends and families in the southeastern United States.
...
The company said an e-mail offering a free Starbucks iced coffee was sent to a limited group of employees in the southeast on August 23, with instructions to forward it to friends and family.

But apparently the promotional coupon, which was widely posted on the Web, was a little bit too successful: Starbucks said on Tuesday that, effective immediately, the offer would no longer be valid at any Starbucks locations.

Amazing how the quantity demanded of a good increases as the price declines -- especially to zero. It's almost like a law or something.

Of course, a price of zero can still be neutralized by a marginal utility of zero (or lower). Stated differently: if everyone thought, as I do, that iced coffee tastes rancid, then Starbucks literally couldn't give the stuff away. Go figure.

I've been trying to avoid the putrid swamp that is the Katherine Harris Senate campaign. But it's just too damn hard.

Rep. Katherine Harris (R-Fla.) said this week that God did not intend for the United States to be a "nation of secular laws" and that the separation of church and state is a "lie we have been told" to keep religious people out of politics.

"If you're not electing Christians, then in essence you are going to legislate sin," Harris told interviewers from the Florida Baptist Witness, the weekly journal of the Florida Baptist State Convention. She cited abortion and same-sex marriage as examples of that sin.

Whatever -- an (Evangelical) Christian blathering to (Evangelical) Christians about how (all) Christians are a "persecuted minority" in America (false) and how the United States is "a Christian nation" (false) and how the Framers were all Christians (false). Nothing new in any of that.

But there is also nothing new in this, Harris' post-gotcha spin:

In a recent article published in the Florida Baptist Witness, Congresswoman Katherine Harris was asked to comment on the interplay of faith and politics in the public square. In the interview, Harris was speaking to a Christian audience, addressing a common misperception that people of faith should not be actively involved in government. Addressing this Christian publication, Harris provided a statement that explains her deep grounding in Judeo-Christian values.

This gobbledygook is a particular annoyance to me (though I am not Jewish), and I have blogged about it previously. These (Evangelical) Christians, when they are (or when they think they are) strictly amongst themselves, prattle about "Christian this" and "Christian that." Then, after the gotcha, or when they know that they're no longer safely locked inside their political sanctum sanctorum, they gratuitously, obnoxiously and totally disingenuously stick on that "Judeo-" nonsense, strictly for CYA purposes (by which I do not mean "Christian Youth Association"). It's almost like a "reverse Macaca" effect: the (perceived) ideological purity of your audience determines the ideological purity (and therefore the sincerity) of your word choice.

Don't buy into it. When they say "Christian," they mean Christian, without the "Judeo" (but with the "Evangelical").

When they whine about some lawsuit over a Decalogue in a courthouse, they are not siding with Jews, they are siding against the First Amendment. And as I have said more than once, I am still waiting to meet someone who introduces himself as a "practicing Judeo-Christian." (See also here.)

Just as gays must certainly realize by now that it is prima facie evidence of self-loathing to be a Republican in the current environment, so too should Jews start acknowledging that when the social conservatives say "Christian," it is not shorthand for "Judeo-Christian."

Do you really want to risk them eventually treating you the way they treat us?

More thoughts from Below the Beltway.

As you may recall, I'm leaving for my Prague vacation Friday evening, and it's time for me to start preparing. So there will be little or no blogging until Saturday at the earliest.

I will be fully connected once I'm there, however, so lots of real-time photo-blogging. In fact, I've created a new "Vacations & Photos" category to accommodate all the posts.

Thanks to everyone for the helpful tourist suggestions.

---

Meanwhile, in mid-November I will staying at Foxwoods Casino in Connecticut for a few days to celebrate my 40th birthday with a friend or two. If anyone would like to swing by, you are of course invited.

Funny:

(Click to enlarge.)Not So Funny:



That was Part 2 -- Part 1 is here but less interesting. (Via Concurring Opinions -- see also here.)

The latest chapter in the ongoing saga of "There is No First Amendment in Europe" --

Under the proposals, looking at images of rape and sexual torture would become a criminal offence for the first time.

And people caught with so-called "violent and extreme pornography" could be jailed for up to three years.
...
Home Office minister Vernon Coaker said: "This sort of material is not just offensive, it contains images of sexual acts and sexual violence that are already illegal to publish or distribute in the UK."

That last sentence is especially noteworthy, since in the U.S., the distinction between possessing pornography and "publishing or distributing it" is a basic First Amendment principle — see U.S. v. Reidel, 402 U.S. 351 (1971). With the exception of child pornography, an adult has a First Amendment right to possess not only pornography but even obscene material (i.e., "hard core p0rn") — see Stanley v. Georgia, 394 U.S. 557 (1969). Only the distribution of obscenity is subject to proscription, not the possession. So the "contradiction" that U.K. officials seem to see is nothing more than a long-standing principle of American constitutional law.

But that's just us, and our "obstructionist" Bill of Rights. Go figure.

Also "just us" is apparently our insistence that laws not be hopelessly vague. What, precisely, are "rape," "sexual torture" or "violent and extreme pornography"? The infamous gobbledygook response of Justice Potter Stewart, "I know it when I see it," is not a viable answer.

This law would be patently unconstitutional in the U.S. And rightly so.

But that's just us.

More thoughts at To The People.

An NYU student caught with marijuana in his dorm room has won a lawsuit reducing the disciplinary charges against him:

[Michael Quercia] was suspended for a year after school security guards seized 10 ounces of pot and paraphernalia from his dorm room in May 2005. He pleaded guilty to disorderly conduct.

But last March, the university's Judicial Board ruled that Quercia should be suspended until fall 2007 and ordered him to perform 500 hours of community service.

In a ruling last week, Manhattan Supreme Court Justice Walter Tolub wrote that NYU's punishment was "a Draconian measure that is disproportionate to the offense committed."

This is, of course, utter nonsense.

An academic disciplinary apparatus may have all the trappings of a criminal process, but it is nothing of the kind. Disciplining a student for misconduct is not criminal punishment, but a contractual remedy. There was simply no "offense" for the penalty to be "disproportionate" to.

A misbehaving student is in breach of contract: he agrees, among other conditions, to stay out of trouble during his enrollment, and the school agrees to provide him an education (or a dorm room or library privileges or whatever).

So long as the "campus code of conduct," or whatever a school happens to call it, is clear and unambiguous as to what penalties the school can impose for particular transgressions, then the school is of course free to impose them. If the school is candid about it upfront, then it should be able to expel a student for spitting on the sidewalk. Stated differently, "draconian" is not a legal term of art and should not be invoked, by a defendant or a judge, as a defense to anything.

If the student does not like the terms of the disciplinary process, either before or after the fact, then she is free not to partake of it, either by not enrolling in the first place or withdrawing after the fact. But one way or the other, it is all nothing more than a contract dispute.

There may be contractual defenses, such as unconscionability, to "Draconian" penalties, but they must be judged by a different standard than would apply in a criminal prosecution.

It is not "Draconian" to suggest that private universities* have the right to dictate how their private property is to be used by the students who enter into private contracts with them. This lawsuit was frivolous, the judge should have thrown it out and the university is right to appeal it.

(*A public university, as a potential "state actor," might face a slightly different analysis under the Fourteenth Amendment.)

(Via Gothamist. Several of the comments there point out that 10 ounces is a bit much to claim for "personal use." I have no knowledge of such things. Thoughts?)

Venezuela's Communist fascist populist socialist dictators are, in the name of the people, seizing golf courses:

The mayor of Venezuela's capital Caracas says he plans to expropriate two exclusive golf courses and use the land for homes for the city's poor.

Mayor Juan Barreto has said playing golf on lavish courses within sight of the city's slums is "shameful".

Mr Barreto, an ally of President Hugo Chavez, has been trying to address a dramatic housing shortage in Caracas.

This makes the central planners of Venezuela almost as despicable as the central planners of Long Island, who, in a post-Kelo binge, seriously proposed seizing a golf course to build ... another golf course.

Who would have thought that Venezuela would actually have to play catch-up to the United States in the "Master Planners" tournament of abridging property rights?

UPDATE: The federal-level socialists are backpedaling from the local socialists' plan. One statist's hook is another statist's slice...

More thoughts at Hit & Run.

Scribbled on an alley wall at Oxford University:


To which my reply is:

Of course capitalism is boring. In capitalism you are only controlling your own life. In socialism you are controlling everybody else's lives.

So the question then becomes: What's wrong with boredom?

Kip's Law: Every advocate of central planning always — always — envisions himself as the central planner.

Via Doc.

Not a major event, but disappointing nonetheless:

Federal election regulators refused to ease limits on political advertising Tuesday, blocking an effort to let interest groups run radio and television ads mentioning elected officials within weeks of an election.

The Federal Election Commission voted 3-3 on a proposal that would have allowed such ads as long as they addressed public policy issues and did not promote, support, oppose or attack a sitting member of Congress. Supporters of the change said they wanted to strike a balance between campaign ad restrictions and constitutional free speech guarantees.

Since the proposal was a rule change, the 3-3 tie meant defeat.

So the schizophrenia that is campaign finance law stays as schizophrenic as ever. A dollar spent by me receives less constitutional protection than a dollar spent by a Member of Congress. The 2,001st dollar spent by me receives less constitutional protection than the 2,000th dollar. A dollar to be spent on the 60th day before an election receives less constitutional protection than a dollar to be spent on the 61st day before an election. A dollar spent by me using my blogonym receives less constitutional protection than a dollar spent by me using my real name. A dollar spent opposing a bigot politician receives less constitutional protection than a dollar spent opposing a bigot amendment.

That simply cannot be right. None of it makes any sense at all.

But, heck, it's just the First Amendment. No big deal, right?

"I'm Kip and I approved this blogpost..."

Letters ... we get letters:

Hey, Kip,

Have you heard about this?

www.freestateproject.org

Curious as to what you think. I must admit it's tempting...

(No, I do not have a connection to the project. Just thought you'd find it interesting.)

Actually I've briefly visited the issue previously. See also here.

Let's begin at the beginning. I've been to New Hampshire. I have a good friend who lives in New Hampshire.

New Hampshire sucks.

With that out of the way -- why bother?

There are two broad reasons why the Free State Project is a bit silly. Let's start with the micro-cosmic reason.

If libertarians want to live in an anarcho-syndicalist commune / autonomous collective, then why do it outside an empty castle in New Hampshire? Find a tract of land wherever you please and develop a planned community, complete with governing agreements and a network of voluntary contracts.

Like, say, what's been happening with retirees, first in Florida and now in Nevada and Arizona. Or like, say, my co-op here in Manhattan. (Or, cf., Ave Maria, Florida.)

If a bunch of people want to get together and form a private community, then they can do it anywhere. Apparently the only reason the Free Staters particularly prefer New Hampshire is because of the low taxes. Fair enough, but Florida and Nevada have low taxes too.

Now consider the macro-cosmic factors. Wherever libertarians congregate to build their Utopia, it's still going to be a part of a county, and a school district, and a state, and a country -- all of which have, under current thinking, nearly unlimited authority to nullify those libertarian principles that Free Staters are seeking to preserve.

Build your Free State paradise in New Hampshire -- the state may still try to tax your scenic view. Build it in Kansas -- the state may still try to ram creationist gobbledygook down your kids' throats. Build it in a Manhattan co-op -- you're still going to pay for 12.2 million condoms to "cover the city in latex." Build it in Utah -- no, don't even try to build it in Utah.

Or build it anywhere else, and Congress will still reserve the right to nullify any private agreements it doesn't like, such as (entirely voluntary) restrictions on flag displays on your property.

I mean really, what's the point?

No, I think it's better (from a collectivist perspective, somewhat ironically) for the "libertarian diaspora" to continue. Even if we're a perpetual minority everywhere we go, at least we'll be heard everywhere we go.

That's my idea of a "free state project."

OpinionJournal is engaging in a bit of inconsistency:

Under the 1954 Revenue Act, 501(c)(3) organizations risk losing their tax-exempt status if they "participate in, or intervene in ... any political campaign on behalf of any candidate for political office." Over the past two years scores of organizations have faced scrutiny for allegedly mixing their political convictions with their religious ones. And this summer the IRS expanded a program it first launched in 2004 to take direct aim at political advocacy inside houses of worship.
...
It is true that the prohibition on church-centered political activity is decades old. But it is also true, as the IRS admits, that there is no "bright line test" to determine what constitutes political activity. Churches have always tried to influence voters on moral issues. What is different now is that moral issues -- abortion, stem-cell research, same-sex marriage, war -- are now hot political issues, and the IRS is pushing religious communities out of the debate.

This is, of course, utter nonsense.

Remind me again who insisted that government money -- which a tax exemption certainly is -- can come with strings attached?

Oh, right -- OpinionJournal -- back when they (along with other anti-gay factions) liked it when strings were being attached to government beneficence, in the form of the anti-First Amendment Solomon Amendment back when it was being (unsuccessfully) challenged in Rumsfeld v. FAIR, No. 04-1152 (2006):

In any event, there should be no legal question about Congress's right to put conditions on grants of federal funds to universities. It does this all the time -- including requirements that colleges adhere to certain civil rights and gender standards. With a few exceptions, universities have no trouble going along and courts have no problem letting them.

Universities are tax-exempt; churches are tax-exempt. Universities have First Amendment protections; churches have First Amendment protections. The Solomon "strings attached" apply to all universities equally; the tax-exemption "strings attached" apply to all churches equally. Most universities "have no trouble going along" with the strings attached for them; most churches "have no trouble going along" with the strings attached for them.

And yet OpinionJournal endorses one while condemning the other. Go figure.

Sometimes you can just choke on the hypocrisy of social conservatives.

FEMA Director David Paulison on Meet the Press:

MR. RUSSERT: So the money will get directly to the people, but when they get it they won't be able to use it on tattoos or guns or condoms-to-go, as was evidenced with Katrina?

MR. PAULISON: I don't have any control once we give people money. Normally, we put money -- either give them a check or wire directly to their bank account. Once they get that money for, for issues the Congress has allowed us to give people money for, how they spend it is out of our control. You know, that's an individual choice. So if they take that money, waste it on something else and don't rebuild their home with it or don't replace a car or don't pay medical expenses, you know, that's, that's a personal decision they have to make. We simply give them the dollars they're allowed under law, and then they should be spending it on what it's given to them for, but we don't have any control once we turn those dollars over to them.

This is, of course, utter nonsense.

The government has been limiting handouts to in-kind assistance since the creation of the welfare state. Food Stamps go to, um, food. Tuition assistance goes to, um, tuition. Fraud exists, to be sure, but it is minuscule and not dismissed with a bureaucratic shrug.

Or the government could instead direct aid to agencies, such as the American Red Cross or local hospitals and shelters, rather than to individuals.

And of course, taxes -- unlike the handouts that they fund -- are anything but "an individual choice." So such a statement becomes especially obnoxious.

Now as any good student of economics knows, to some extent this is merely a question of appearances. If you were planning to spend $50 on food and I give you $50 worth of food, then you might very well spend the original $50 on something other than food, something I would not endorse. So be it.

But what's wrong with keeping up appearances? What's wrong with taxpayers demanding that, if disaster "victims" are going to defraud us, then they should at least have to work at it? Why should we catalyze the process by pretending that it's "just another cost" of disaster relief?

FEMA should not sit idly by, allowing disaster aid abusers to piss on our shoes and then telling us the levee broke.

Sorry, but sometimes the post titles just write themselves:

In a quest to quell HIV and other sexually transmitted infections, city health officials have quietly flooded the five boroughs with free condoms.

They gave away 5.8 million in 2004 and a staggering 12.2 million last year, The [New York] Post has learned.

Last spring, Scott Kellerman, the Health Department's Assistant Commissioner responsible for coordinating HIV/AIDS services, told The Post that the department must "cover this city in latex."
...
Previously, officials gave condoms only to clinics that handle sexually transmitted diseases. "It wasn't readily open to other groups. Now, youth centers, senior centers, private hospitals, commercial sex venues and many other facilities can order," Dr. Isaac Weisfuse, the deputy commissioner told The Post.

Do we really need to spend more than ten seconds to determine whether condoms are a public good that should be underwritten by taxpayers?

Furthermore, there are no (direct) negative externalities to unprotected sex*. And the indirect negative externalities (i.e., health care for the infected) only exist because of our semi-socialist health care system in the first place. A program like this is merely throwing good money after bad (or bad money after worse).

And even if some argument for free condoms could be made: 12.2 million in a single year? For a city with a population of 8 million, less than 80% of whom are over 14, and only a fraction of that fraction are sexually active with multiple partners, and only a fraction of that fraction of that fraction can't afford condoms.

Wherever the line is between defensible public health policy and the Politics of the Warm Fuzzy Feeling may be, this "cover the city in latex" mania is far past it.

And as for those who have unprotected sex, regardless of whether they can't afford condoms or because they simply can't think rationally:

You'll go to a bar and spend $6 for a beer. You'll pay a $15 cover charge to get into a dance club. You'll pay $25 for a hit of meth. You'll pay $100 for sex with a prostitute. But you won't pay 25 cents for a condom?

Sorry, but sympathy is a scarce good that needs to be rationed. And you're at the absolute back of the line.

(*In terms of sexually transmitted disease. Unintended pregnancy is another matter.)

Try to correctly fill in the blank:

"Nerds don't like ___. True nerds can't stand that lame-ass show. It's for dorks who like to pretend they are nerds."

a) Doctor Who (new)
b) Stargate SG-1
c) Lost
d) Who Wants to be a Superhero?
e) Battlestar Galactica (new)

Answer here (scroll to 05:02:05 PM).

Even though I might qualify as a nerd and/or dork, I can't really remember a time from my youth when there was a cognizable difference between the two.

And for the record I watch all but one of those shows -- can you guess which one I don't watch?

I previously blogged the following:

And most non-lawyers know, or can guess, that a criminal defendant who is, for example, caught with illegal drugs can be acquitted (e.g., because the drug evidence was suppressed as the result of an illegal search) but will still forfeit the illegal drugs — the police of course do not give you your illegal drugs back simply because you were found "not guilty."

So, something that is never "contraband," such as cash, should never be seized in the absence of criminal guilt. Something that clearly is contraband can, on the other hand, be seized regardless of whether there is ever a conviction or guilty plea. The forfeiture of contraband is a government action that occurs outside and independent of the criminal law. This is not, without more, an affront to libertarian sensibilities.

Keep in mind, however, that whether something is contraband is an entirely different question from whether something ought to be contraband. The latter is where proper indignation lies, not the former.

You may not like the drug laws. I don't like the drug laws. But that doesn't mean that the drug laws don't exist, or that drugs aren't contraband. They are. If you get caught with illegal drugs, then you lose those illegal drugs. No finding of guilt required. Any libertarian outrage must be directed at the drug laws, not the forfeiture laws.

With that in mind, let's review a case study:

The New Hampshire Supreme Court has upheld yet another outrageous seizure of private property. From a [sic] editorial in the Manchester Union-Leader condemning the ruling:

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen's CDs. In the state Supreme Court'd [sic] Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he'd made up his mind ahead of time.

Of course, instead of relying on an editorial regarding the case from a tertiary newspaper, one might actually read, um, the case itself (which, at six pages, is hardly a daunting task):

During the hearing, Cohen's attorney stated, "In fact, we concede if the CDs ended up back up in his store, he was selling those CDs again, it would be an entirely new offense." Cohen makes similar concessions on appeal. The trial court denied Cohen's motion, stating, "The items in question were being offered for sale when they were seized. It would be illegal to sell these items knowing that they are counterfeit."
...
Cohen concedes that an innocent party may lose his property under forfeiture statutes.
...
That the possession of such compact discs is not illegal under this particular statute does not mean that the discs themselves do not constitute contraband pursuant to other statutes.
...
Cohen conceded below, and does again on appeal, that the compact discs were counterfeit. [Underline in original.

The court then proceeds to explain, quite convincingly, how Cohen's CDs clearly violated both state and federal laws regarding counterfeiting and copyright infringement.

They were contraband, based on Cohen's own concessions at trial. They were seized. The fact that no crime was prosecuted is entirely irrelevant.

I have little interest in the copyright laws. Maybe they're oppressive. Maybe we libertarians should spend as much time denouncing them as we spend denouncing the drug laws or Kelo v. New London.

But the forfeiture laws, in this case at least, worked in a perfectly hunky-dory fashion. No harm, no foul.

There are plenty of bad laws, and plenty of abuses of bad laws, to keep libertarians quite busy. We shouldn't be muddying the waters inventing "J'Accuse...!" travesties where none exist.

---

The case is State v. Cohen, No. 2005-261 (Supreme Ct. New Hamp., August 22, 2006) (PDF - 6 pages).

Michael Bloomberg, who spent $160 million of his own money to buy two terms as Mayor of New York, now thinks that -- gasp! -- there is too much money in election campaigns.

Firms that do business with the city and also make political contributions are engaged in "bribery or graft," Mayor Bloomberg said yesterday.
...
Taking off from there, the mayor went on to decry the campaign-finance system he says invites corruption for allowing city vendors to try to influence the government by making hefty campaign contributions.

"If you've got business before the city, state or federal government, you shouldn't be giving to elected officials. Period. End of story."

Oh my goodness.

Is there a single person on the planet who has less moral sanction to invoke the flaws of campaign finance than Michael Bloomberg? Is there a blacker pot to be going around lecturing the kettles?

Money is speech, and speech is protected by the First Amendment. To the extent that our campaign finance laws, or the Supreme Court, or Michael Bloomberg, say otherwise, they are wrong.

Period. End of story.

If our philosopher-king mayor is so concerned about corruption in government, then perhaps he should focus on, um, government. On what the government does and who does it.

If the City of New York, with its $55 billion annual budget and 350,000 employees didn't go around buying so much and building so much and generally doing so much, then no one would be chasing any government contracts. There would be no need to worry about conflicts of interest, because there would be no conflicts of interest. There would be no need to call for limits or bans on campaign contributions, because no one would be making any campaign contributions, at least not out of any ulterior motives.

Period. End of story.

Only a politician could dare suggest that the problem of political corruption has nothing to do with politicians. Only a self-loathing ex-businessman could dare suggest that businessmen deserve to be loathed.

Period. End of story.

This is what I wrote back in June when Louisiana passed a patently unconstitutional ban on the sale of "violent" video games to minors:

Of course the whole point of the Miller obscenity test is that it applies to, um, obscenity (i.e., pornography) — and nothing else. There is no reason to suspect that the Supreme Court, especially given its recent Internet-and-children cases, is at all inclined to extend Miller v. California, 413 U.S. 15 (1973), beyond obscenity. These hack Louisiana legislators may be a bit too quick to pat themselves on the back for their cleverness, given that every single federal court that has heard a challenge to video game restrictions has struck down those laws. Every single time.

Make that "every single time plus one" --

U.S. District Judge James Brady said the state had no right to bar distribution of materials simply because they show violent behavior.

Brady issued an injunction, calling the law an "invasion of First Amendment rights" of producers, retailers and the minors who play the games.

"Depictions of violence are entitled to full constitutional protection," Brady wrote Thursday.

Which invites the question: Were the hack Louisiana legislators and the hack Louisiana governor just incompetent or wilfully insolent when they enacted this law, which any second-year law student could have told them never stood a chance of being upheld. This one just wasn't difficult — and they passed it anyway.

So remind me who are the "activists" here — the politicians who show a complete disregard for the Constitution, or the judges who don't?

More thoughts from ACS Blog.

Well, that only took a year and a half, a leadership change, and the blogosphere:

Dana A. Brown, director of the Federal Air Marshal Service, said in a memo to air marshals that the dress code revisions will take effect Sept. 1 and replace a policy that some air marshals criticized for being so strict that they stood out on some flights.

Brown told air marshals in the memo that the policy was being amended to "allow you to dress at your discretion." He added that the new policy was designed to let air marshals blend in while concealing their weapons.
...
The previous dress code generally required air marshals to wear collared shirts, sport coats and dress shoes.

"Style versus Substance" takes on a whole new meaning when government is involved.

---

White, 30-something, neat and proper, reasonably well dressed, traveling alone, doesn't drink on the plane, doesn't talk to anyone...

I wonder how often I'm thought to be an air marshal.

"Do you feel lucky, punk?"

Of course, if terrorists could somehow get on a plane, they would probably profile for potential air marshals and "neutralize" them -- uh oh.

In what is apparently considered "news," some "experts" inform us that "perfect" implies "expensive" --

With solid concrete walls and roofs and laminated glass windows protected by storm shutters, a house can be built to withstand nearly any hurricane. But very few are.

Even in the most vulnerable U.S. coastal areas, virtually no one builds homes or buildings to survive a Category 5 hurricane -- a monster storm with winds higher than 155 miles per hour (250 km per hour) that can crush ordinary houses.

It costs too much.

Gee, you think?

This is, of course, nothing new. You can build a perfectly safe car -- but it would be a tank and cost a million dollars. You can design a perfectly crack-proof egg carton -- but eggs would cost $10 each. You can reduce pollution to perfectly zero -- but it would require that we live like cavemen.

One would hope that such subjects are covered in an introductory economics class. We could think in terms of "units of safety," in which case each "unit" would cost ever more money -- as in the Law of Increasing Marginal Cost. Or we can think in money terms -- each additional dollar yields an ever-diminishing level of added "safety" -- as in the Law of Diminishing Marginal Returns. Or we can think of how useful additional "units of safety" become as the calamity that they anticipate become ever more remote -- as in the Law of Diminishing Marginal Utility. Or we could think in terms of when it makes more sense just to spend money on insurance rather than disaster-proofing -- as in the Law of Increasing Opportunity Cost.

What would have been a more useful news story is how the government disrupts all these economic laws and interferes in these economic decisions by subsidizing potential disaster zones. Why bother deciding how much "safety" to buy, or how much insurance, when the government (i.e., everybody else) will pay for your disaster after the fact? Whether it's FEMA, flood insurance, presidential disaster declarations or plain old pork barrel spending, when the government subsidizes an activity, you get more of it, including disaster damage. That should also be a topic in introductory economics -- hopefully.

Since astronomy is in the news, let's revisit my meteorite example from a previous post. If one meteorite smashes through my living room window, the federal government would do absolutely nothing about it. I would be told, quite properly, "too bad so sad."

Yet if a meteor shower were to rain down and smash 100,000 living room windows, then suddenly it becomes a "disaster" and the government would be expected to "do something" to help the "victims."

That simply cannot be right.

And it would be even less right if I and my neighbors chose to live in an area known to suffer from meteor showers. We should have been expected to figure out how much "meteorite safety" (or private meteorite insurance) to buy and take our chances.

So too with areas prone to hurricanes, or earthquakes or floods or forest fires or blizzards or locusts or whatever. You know, or should have known, the risks (i.e., the costs) of living where you do. Plan accordingly. Build accordingly. Insure accordingly.

That would be an inexpensive kind of "perfection."

No, not this Apotheosis of George W.:



This Apotheosis of George W.:


Guess where this painting is displayed:

a) The White House
b) Yale University
c) Reagan Airport
d) The George H.W. Bush Library

Answer here, via here.

So: Dignified or gauche? Patriotic or fascist?

Comments are wide open.

I suspect that very few of my readers are crack addicts, so you might not be familiar with the "powder/crack" controversy:

In federal court, crack offenses generate sentences 100 times greater than comparable powder-cocaine crimes. In other words, while it takes 500 grams of cocaine to trigger a five-year mandatory minimum sentence, 5 grams of crack earns the same punishment.
...
The 100-to-1 penalty ratio dates from 1986, when lawmakers established mandatory minimum sentences in response to widespread fear of a crack epidemic. For years judges have railed against the heavy crack sentences as unfair, and Congress has considered amending them before. What's different this time is that the judges are doing more than complaining.

There are other components to the controversy, particularly the demographic truth that blacks are more likely to use crack cocaine and are therefore likely to be punished more severely than whites (who, demographically, tend to use powder cocaine and therefore get lighter sentences when caught). That is not my subject here, however.

I want to focus on the Booker backlash:

In [U.S. v. Booker, 543 U.S. 220 (2005)] the court found that mandatory sentencing guidelines violate a defendant's constitutional right to a jury trial (by requiring courts to assign a sentence based on facts found by judges, after the jury has issued a conviction). The federal sentencing guidelines, mandatory since they went into effect in 1987, became merely "advisory."

Stated differently, a judge can now disregard (up to a point), a legislatively-dictated sentence if that judge considers the Sentencing Guidelines to be "unreasonable."

Or, instead of "unreasonable," might we say "irrational"? As in, not satisfying "rational basis review"?

The Booker backlash is just one manifestation of a fundamental judicial responsibility -- one under attack by those who toss around the meaningless canard of "judicial activism." Regardless of the context, regardless of the litigants, regardless of which particular provision of the Constitution is at issue, it is always -- always -- the prerogative and the duty of judges to strike down irrational laws. It is never -- never -- the duty of judges to defer to the legislature (or the executive or the electorate) merely for the sake of deference.

The Slate op-ed sums it up nicely:

It is rare for judges to use their opinions as a forum for editorializing about what Congress should be doing. So, when a particular policy attracts persistent judicial protest, Congress does well to listen carefully. This is especially true when it comes to potentially discriminatory laws.

Whether it's the impact of an irrational "powder/crack" penalty ratio on a racial minority, or the impact of an irrational marriage law on a sexual minority, it is indeed proper for judges to invoke that "rare forum."

And note too that the less often that the non-judicial parts of government behave irrationally, the rarer that "rare forum" would become. In other words, if you don't want judges striking down laws, then don't pass those laws in the first place.

---

For those particularly interested in Booker and the Sentencing Guidelines, your best source is without question the excellent blawg Sentencing Law & Policy.

...is post-Communist bastards:

A Russian court has affirmed the right of the city of Moscow to reject an application by organizers of a gay pride parade, ruling that there was a legitimate safety concern in banning the parade, though lawyers for the parade organizers said the ban infringes on gay rights.

"Ah yes, Comrade, er, Citizen Faggotov, we must deny you your free speech rights for your own safety! Praise the Party, er, the Motherland for protecting you, nyet? Now go drink some vodka like a good Comrade, er, Citizen!"

Of course, the scam idea of the "Heckler's Veto" is not unknown here in the U.S. Fortunately, the Supreme Court, ever the cabal of "activist judges" has, without exception, rejected such reasoning.

Meanwhile, can you think of other situations where civil liberties are being vacated in the name of "our own safety"? Think hard...

Aren't you glad we won the Cold War? Can you even tell that we won it?

---

Meanwhile, that long-standing nexus of progressive tolerance, South Africa, has taken another step toward full marriage equality for gays. Go figure.

President Bush's political mastermind is certainly not his legal mastermind*:

Presidential adviser Karl Rove criticized a federal judge's order for an immediate end to the government's warrantless surveillance program, saying such a program might have prevented the Sept. 11, 2001, terrorist attacks.

Rove said Wednesday the government should be free to listen if al-Qaida is calling someone within the U.S.

Of course, the government is free to listen in on al Qaeda — after it gets a warrant to do so (which would certainly be granted if it really is al Qaeda):

It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four). Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government.

It's not the wiretapping. It's the warrantless, stupid!

(*For that he has Harriet "Uniquely Qualified" Miers, remember?)

A silly story on a slow news day:

The Rev. Cletus Forson, of St. Andrew the Apostle Church in the Bay Ridge section of Brooklyn, was ticketed last month when he responded to an emergency call from a parishioner afraid her mother would die without receiving the sacrament of the sick.

Forson is now protesting the $115 parking ticket, although city officials seem unlikely to absolve him.

"On humanitarian grounds, the law should not be interpreted and applied so stringently that it will prohibit a religious leader from doing his work," the priest said.

This is, of course, utter nonsense.

When a law applies to all, including clergy, that is not an infringement upon religion. Declaring that no one, not even priests, shall park in a particular space (an ambulance zone, incidentally) is no more "religious discrimination" than is forbidding everyone, including voodoo witch doctors, from ritual animal killings.

A reasonable law, applied reasonably, equally and fairly to everyone, with no consideration for irrelevancies. It seems so simple.

Except when it comes to marriage — then it all flies apart for some reason and people start insisting that reasonable laws be applied unreasonably, unequally and unfairly, based solely on irrelevancies.

It boggles the mind.

An example of what might be called the Reverse Groucho Marx* Rule:

Taiwan said it had launched its 14th bid to join the United Nations and urged the international body to grant the island a seat to help promote regional peace.
...
Taiwan was replaced by China in the world body in 1971. The island's previous annual efforts since 1993 to gain a UN seat have failed under objections from Beijing.
...
Beijing has threatened to invade should Taiwan declare formal independence.

To review: The autonomous, peaceful, capitalist, constitutional democracy of Taiwan is shut out of the U.N. and the bloodthirsty Communist dictatorship of mainland China is not only admitted but given a perpetual seat on the Security Council?

Moynihan's description of the U.N. is as true as ever: "a theater of the absurd, a decomposing corpse, and an insane asylum."

(*"I don't care to belong to a club that accepts people like me as members." --Groucho Marx)

So say the "conservatives"* in Washington, who are finally getting the point that religion — whether called "creationism" or "intelligent design" or "zoop" — in science instruction is simply not an option.

Hence they are instead opting for a scorched-earth-sciences policy:

Like a gap in the fossil record, evolutionary biology is missing from a list of majors that the U.S. Department of Education has deemed eligible for a new federal grant program designed to reward students majoring in engineering, mathematics, science, or certain foreign languages.

That absence apparently indicates that students in the evolutionary sciences do not qualify for the grants, and some observers are wondering whether the omission was deliberate.

To be clear: a student can major in any of nine other fields of biology and still be eligible for the grants. Only evolutionary biology was specifically omitted.

26.1301 Ecology
26.1302 Marine Biology and Biological Oceanography
26.1303 ??? <--guess who...
26.1304 Aquatic Biology/Limnology
26.1305 Environmental Biology
26.1306 Population Biology
26.1307 Conservation Biology
26.1308 Systematic Biology/Biological Systematics
26.1309 Epidemiology
26.1399 Other

I sense an intelligent design by certain partisan bureaucrats and politicians. So much for the conservative lie that they want to "teach the controversy."

Note: Another category, 26.0908, is missing from the list of eligible majors, in the "Physiology, Pathology and Related Sciences" category. (PDF - 13 pages). I'll go out on a limb and guess it has something to with stem-cell research. [UPDATE: And I'd be right.]

(Via Hit & Run. More thoughts at Concurring Opinions.)

(*Not "conservative" enough, mind you, to oppose the federal bureaucratization of education. Ronald Reagan was so Twentieth-Century...)

...to "Taught to fear Jesus in a small town" --

The First Baptist Church [in Watertown, New York] dismissed Mary Lambert on August 9 with a letter explaining that the church had adopted an interpretation that prohibits women from teaching men. She had taught there for 54 years.

The letter quoted the first epistle to Timothy: "I do not permit a woman to teach or to have authority over a man; she must be silent." [1 Timothy 2:12]

Christian Sharia in upstate New York. Go figure.

It's quite simple really: The Bible as a source of personal inspiration: usually okay. The Bible as a source of ordering relations and governing conduct among people in a modern society: usually not okay.

(Via HBA.)

Judge Richard Posner has yet again stepped up to the mic to defend the view that the War on Terror requires absolute deference by judges:

Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant. The Fourth Amendment restricts warrants, as I have said, but warrantless searches are permissible as long as they are reasonable. The potential abuses of warrantless surveillance can be minimized, without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance.

This is, of course, utter nonsense.

First off, Posner's "reasonableness always trumps warrants" view of the Fourth Amendment runs counter to Supreme Court precedent, especially Katz v. U.S., 389 U.S. 347 (1967), as well legal and popular consensus, and the plain text of the document (why mention warrants at all if they were not to be considered, whenever at all possible, a condition precedent to a search, whether reasonable or not?). There is also, it apparently needs to be reiterated, nothing in the text of the Fourth Amendment limiting it to "criminal matters."

But far more disturbing is Posner's irrational confidence in (hypothetical) "extra-judicial" checks on abuse of warrantless eavesdropping, and indeed on warrantless searches in general. A man who has seen, and made, so much law during his career ought to have a better understanding of the political process and its shortcomings, and of the limitless danger of relying solely on the good faith and ethical steadfastness of politicians, bureaucrats, regulators, generals and spies.

We shouldn't be so naive. We don't need to be so naive. So why are we becoming so naive?

"Al Qaeda" is simply not a good enough answer.

More thoughts at Balkinization.

We need to defend traditional pets!


Senator Rick "Tortoise-on-Dog" Santorum was unavailable for comment -- he was too busy defending traditional polar bears instead (with $500,000 of your federal income tax dollars, of course -- because he's a "fiscal conservative").

"The only people I fear are young conservatives and old liberals."
--Falsely attributed, in various forms, to Winston Churchill.

Don't worry, we'll just breed it out of them --

According to the 2004 General Social Survey, if you picked 100 unrelated politically liberal adults at random, you would find that they had, between them, 147 children. If you picked 100 conservatives, you would find 208 kids. That's a "fertility gap" of 41%. Given that about 80% of people with an identifiable party preference grow up to vote the same way as their parents, this gap translates into lots more little Republicans than little Democrats to vote in future elections.

Now, many conservatives — and all conservative bigots — insist that sexual orientation is in no way genetic or hereditary or pre-determined in the womb or whatever — but political philosophy is? Conservative parents, somehow, produce gay offspring with disturbing (to them, that is) frequency, but seldom produce a liberal child?

This is what passes for "conservative sociological academic research"?

Astounding. And depressing.

Of course, one might perform the same voodoo math with random combinations of "cynical" versus "not cynical" adults and see what kind of "political motivation gap" it produces.

If I were a conservative apologist, I'd be far more concerned with that fertility gap.

And besides, what difference does it make whether conservatives are outbreeding liberals if true conservatism (i.e., low taxes, limited government, personal autonomy and a respect for privacy) have been bred completely out of modern conservatism?

Mirror piece at the Wall Street Journal. More thoughts from Greg Mankiw.