A Stitch in Haste

By now you have heard that a federal judge, interpreting a federal statute, has declared that United States currency does not adequately account for the needs of the blind and has ordered the U.S. Treasury to redesign, at not insignificant expense, our entire paper money system to redress this deficiency. The consensus at this point is that the optimal, or least sub-optimal, solution would be to have different denominations in different sizes, as many other countries do. There is also widespread belief that Congress may simply amend the statute to render the judge's decision moot.

First of all, this is not the forum for libertarian whinings about fiat money and the gold standard — see this post. Neither will I fisk the judge's decision itself or prophesy about its future on appeal or in Congress.

My thesis here is to note that I have yet to see anyone draw the quite obvious comparison to the broad question of gay rights, and the specific question of same-sex marriage:

--The blind are, with all due respect, a puny minority in America. There are far more gays than blind people. (Note: The litigation was also filed on behalf of the legally blind and other "low-vision" individuals — still only about three million Americans in total. There are easily 20-30 million gays in America.)

--Being blind is an accident of birth or circumstance. Just as no one "chooses" to be gay, no one "chooses" to be blind. Similarly, just as no one asks "When did you choose to be blind?" so too should they not ask "When did you choose to be gay?"

--The "right" at issue over the blind's access to paper money is purely one of statute; there is no great constitutional debate here. Gay rights, on the other hand, are profoundly constitutional in nature — they go to core questions of unenumerated rights, due process, equal protection, privileges and immunities, full faith & credit and other constitutional dictates. Yet while the propriety of the "blind money" decision is being questioned and challenged, no one is as indignant about this "newly invented right" or this "activist judge" as they get about gay rights or same-sex marriage, which are far more solidly anchored in our legal system and therefore ought to be less controversial and less viciously opposed. The fact that this is not the case demonstrates that something else — something less worthy — underlies the opposition to equal treatment for gays.

--The judge in the paper money case seemed to have focused only on the cost to the government (and therefore taxpayers) of redesigning our currency, and he decided (perhaps somewhat flippantly) that a 10% increase in cost was de minimis. But of course there will be additional costs in the private sector. Vending machines, cash registers and similar equipment (even wallets) would all have to retrofitted or replaced — hardly a costless proposition. And of course each and every American would have to "get used" to the new money. Hard to quantify, but a genuine cost nonetheless (cf., Britain's decimalization in 1971 or the U.S. debate over "going metric" in the 1970s). The cost of allowing same-sex marriage, by contrast, is — well, nil (except for the bigots, who must bear the "cost" of seeing their bigotry frustrated). So incurring real cost to help the blind is "reasonable;" incurring no real cost to help gays is "the ruination of America." Go figure.

So to review: A far smaller minority than gays, relying on a statutory right rather than on core constitutional principles, is entitled to have the entire United States currency system redesigned, and all other Americans burdened, based on one judge's interpretation of the law. Gays, meanwhile, get little more than crumbs and vinegar wherever they turn.

You'd have to be blind not to see the injustice.

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For Discussion: We are all familiar with the "special exemption" the blind receive on their federal income tax returns. Why only the blind, other than the Politics of Pull? Background here.

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The case is American Council of the Blind v. Paulson, No. 02-0864 (D.D.C. Nov. 2006) (PDF - 26 pages). The statute at issue is the "Rehabilitation Act," 29 USC 794, Sec. 504.

More thoughts from ACS Blog, Rolling Doughnut, Overlawyered.

Time to clean out the aggregator:

ITEM: A federal circuit court has upheld a permanent injunction against an Illinois law restricting sales of sexually explicit video games to minors. As I mentioned in this chain, every single time a state has tried to modify the obscenity test of Miller v. California, 413 U.S. 15 (1973), to apply to video games, courts have (quite properly) struck them down — a video game is simply not a XXX-rated porno. This court, meanwhile, made an additional and important observation:

Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system.

In other words, leave parenting to parents. How "activist" of these judges! (ESA v. Blagojevich, PDF - 21 pages. Via How Appealing; more thoughts at ACS Blog.)

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ITEM: You may have heard by now about the kerfuffle in Pagosa Springs, Colorado, over a homeowner association that threatened to fine a resident couple who displayed a "peace wreath" in violation of development rules. As I explained in this post on a recently passed federal law voiding such restrictions as they apply to flag displays, this whole topic has absolutely nothing to do with freedom of speech and absolutely everything to do with freedom of contract. The board was right* and the resident couple was wrong. Which didn't stop the couple from winning and the entire board from being pressured into resigning. Conclusion: Expect more "restrictions on restrictions" laws and lawsuits, preposterously couched in First Amendment claims, in the future. (*Except for the one loopy board member who thought the peace symbol was a sign of the devil — oy vey!).

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ITEM: The U.S. has banned a laundry list of luxury items from being exported to North Korea Kim Jong-Il. The move is entirely symbolic, since no one in North Korea outside of Kim's inner circle can afford a square of toilet paper, let alone an iPod or a Rolex. Of course, Article I expressly authorizes Congress to "regulate" foreign commerce, but doesn't crafting hodge-podge lists of a handful of items that cannot be shipped to a handful of nations (or a handful of people) constitute "irregulating" foreign commerce (i.e., in the sense of making it "less regular" rather than "more regular")? Abstracting away from constitutional law: When do the negative externalities of trading with "the enemy" (very loosely defined in the case of North Korea, a nation that we are not at war with) outweigh the private right to trade and earn a living? Very hard question to answer. Previous post on North Korea here.

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ITEM: The U.K. has announced its plan to reform (i.e., try to fix) its public pension (i.e., Social Security) system. The centerpiece of the plan is a drastic but gradual increase in the retirement age — to 68 by 2046. Of the three dials to tweak in a failing pension system — raising taxes, cutting benefits for all and cutting eligibility for some — the latter is the most logical, at least in the context of the retirement age, which should of course be adjusted as life expectancy increases. On the other hand, from the perspective of a current participant (i.e., taxpayer), extending the retirement age is a benefit cut, pure and simple, which is why such adjustments should be as gradual as possible. President Bush, meanwhile, continues to pretend that he is, somehow, a fiscal conservative while hinting that he is ready (again) to sign on to removing the wage cap on Social Security taxes. Eliminating the cap would not only be the single largest tax increase in American history, but would also complete the degradation of Social Security from anything remotely resembling a "forced retirement" program into a pure, unapologetic welfare scheme. Splendid. (And voluntary partial privatization is of course dead and buried.)

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ITEM: Bill Frist has announced that he will not run for president in 2008. Guess he figured the "persistent vegetative" vote wasn't enough to put him over the top. Frist says he wants to return to medicine — perhaps he wants to resume his cutting-edge research on catching AIDS from tears. Of course, the real reason Frist isn't running is because he's an unethical sleazebag — which is helpful for a Congressional leadership position but not so much for a presidential campaign.

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ITEM: I've noted before that New York is arguably the worst-governed state in the union, mainly because of its contemptible, bass-ackwards legislature, which vests essentially all power in its two leaders — turning the state into a de facto triumvirate comprising the governor, the assembly speaker and the senate majority leader. So why would anyone in fact want to be a state legislator — what do they actually get to do all day?

Each year, the Legislature sets aside $200 million for [legislative] projects — $85 million for the Assembly, $85 million for the Senate and $30 million for the governor. The projects, known as member items, have been criticized by budget watchdogs because there is no public debate on how useful they are, there is little accounting for how the money is spent, and the system allows the leaders to keep members in the dark about who they are favoring.

Sounds an awful lot like the Mafia to me. No wonder we're called the Empire State.

Burma's brutal military junta -- arguably the most oppressive government on Earth -- has shut down the Red Cross and forbidden all prison visits:

While the Red Cross had not been entirely ejected from Burma, [a spokesperson] said she feared the organisation's presence in the country could soon be confined to an office in the capital.

Meanwhile the US ambassador at the UN, John Bolton, said he would table a resolution on Burma in the Security Council in the next few days.

He said Burmese government policies of repression and human rights violations had contributed to instability in the region, and were a threat to international peace.

Funny, wasn't "bringing democracy in order to stabilize the region" one of the reasons we invaded Iraq? So remind me again why we aren't invading Burma? What does Iraq have that Burma doesn't?

Oh right, WMDs. Silly me.

Well, silly somebody.

As I understand it — and it can be very difficult to understand — the Supreme Court's current thinking regarding religious displays on government property, and particularly displays of the Ten Commandments in courthouses, goes something like this:

As part of a comprehensive tribute to "important historical symbols and figures," the Ten Commandments are a permissible display. There is nothing intrinsically wrong with a Decalogue in a courthouse; it is not, without more, a violation of the First Amendment. Van Orden v. Perry, 545 U.S. 677 (2005).

However, if a Ten Commandments display has undue prominence, which includes the case of a large Decalogue displayed by itself, then that constitutes an endorsement of a particular religious viewpoint and therefore violates the Establishment Clause. McCreary County v. ACLU, 545 U.S. 844 (2005).

Armed with that, let's pay a visit to Dixie County, Florida:


Is a six-ton chunk of granite, alone and smack dab in the middle of the courthouse entrance, a display of "undue prominence"?

Only if you have your eyes open, an IQ over 80, and no ulterior motive.

Two additional, interrelated hasty stitches:

1. Only four of the Ten Commandments — which, incidentally, are part of Jewish and (arguably) not Christian beliefs — are in any way related to modern legal doctrines or concepts. So why are militant Christians so obsessed with getting them into the courthouse?

2. By the same token, how come you never see any militant Christians offering to erect six-ton granite monuments to the Golden Rule? Could it be because it's a bit too libertarian for militant Christians? Stated differently, why do "Christian conservatives" spend so much more time being "conservative" than being "Christian"?

(Via How Appealing.)

Having won the early legal rounds over their worthless (and therefore unconstitutional) random bag search program, the NYPD is taking the next illogical step in (the illusion of) protecting the subway system:

The police department has deployed the "first class" of K-9 units devoted exclusively to the subway, the city's top transit cop said Monday.
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"The biggest issue here is deterrence," said Lt. John Pappas, commanding officer of the Transit Bureau K-9 Unit. "The overall mission is counterterrorism and to fight crime."
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Police officials are being coy about the dog's [sic] abilities -- whether they are explosive sniffers or drug sniffers or both -- but say the training of each animal is extensive.

Some hasty stitches:

--Sniff dogs are not generalists: they are trained to sniff either for drugs or for explosives, but not both. So the fact that the police are "being coy" about which it is obviously means both: that some dogs are explosives sniffers and some are drug sniffers. And drug sniff dogs help in the War on Terror -- how?

--As for the explosives sniff dogs: How exactly are they going to help deter terrorists either? This is foul thought experiment that I abhor, but it's necessary: let's think like a terrorist for a moment. If your purpose is to blow up the subway system and kill as many people as possible, then you are going to do it during rush hour and on the most congested lines -- which is exactly when the sniff dogs won't be around, because it would be impractical if not impossible. Does anyone really believe that the NYPD is going to try to cram an 85-pound sniff dog onto a packed 4 train traveling between Grand Central and Union Square at 8:30 in the morning? Of course not. Deterrence factor: zero.

--Alternatively, if the terrorists prefer simply to inflict economic damage by causing multiple explosions all across the system, then they will do it late at night and at remote stations -- again, precisely where the NYPD will never deploy their sniff dogs. Deterrence factor: zero.

--Going back to "dogs on subway cars" (or, for that matter, dogs on subway platforms): One of the last great unanswered search-and-seizure questions is whether a dog sniff of a person can ever be a reasonable search consistent with the Fourth Amendment. There is a fundamental difference between a dog sticking his snout into your bag and sticking his snout into your crotch. Such a search would violate traditional notions -- including traditional constitutional notions -- of a "zone of privacy" and the right to one's own bodily dignity. The Court rarely finds a Fourth Amendment exception that it won't embrace, but even they would likely balk at this suspicionless affront to law-abiding people. (For an excellent discussion of police over-reliance on sniff dogs, see Justice Souter's dissent in the horribly decided dog sniff case Illinois v. Caballes, 543 U.S. 405 (2005), or this post.)

Much of the NYPD's approach to subway security has been anchored on a patently absurd premise: That it is better to feel safe than to be safe (or to acknowledge that perfect safety is simply not possible). The erosion of civil liberties for warm-fuzzy-feeling theatrics ought not be tolerated.

Is there nothing that New York's philosopher-king mayor, Michael Bloomberg, doesn't feel compelled to micro-manage?

The [food policy] task force will address recent Health Department findings that show 80 percent of food stores in some low-income neighborhoods are bodegas, and only 10 percent of those carry the fresh produce essential to a balanced diet.

The mayor also announced an expansion of the Healthy Bodegas Initiative, which encourages bodegas in low income neighborhoods to stock low fat milk in addition to whole milk.

Only a third of bodegas in the Health Department survey were found to be selling low fat milk.

Of course, demand (or the lack thereof) creates its own supply (or the lack thereof). Stated differently, if bodega customers wanted low-fat milk, they'd ask for it. And if the bodega owners don't respond accordingly, then the customers will go elsewhere. Bodegas are hardly a monopoly, and consumers are hardly mindless sheep -- or does the mayor think that residents of low-income neighborhoods are especially stupid?

And what if the jawboning works and the bodegas stock milk that no one wants to buy? The results are inevitable: lower income for the bodega owners, and higher prices for their customers. Which, somehow, is supposed to be a good thing for low-income neighborhoods. Go figure.

Maybe, just maybe, a single market can be left to the unsupervised forces of supply and demand, and buyers and sellers can be left to, um, buy and sell.

Or, given that we are dealing with Michael Bloomberg, maybe not.

Early indications are that Microsoft's newest offering, an MP3 player designed to take on the iPod, is a flop:

Apple has sold nearly 70 million iPods since introducing them in 2001 and the devices command about 75 percent of the global MP3 player market. Apple's online iTunes store sells digital music, podcasts, video and films.

Microsoft's online Zune Marketplace sells only music for the devices.
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Redmond, Washington-based Microsoft has played up the "social" aspect of Zune, saying the players allow users to share music in a way that iPods do not.

The downside was that borrowed songs are automatically erased after three days or three plays, even if the lender was the musician.

People seem to be sharing more Zune warnings than Zune songs:

The Zune is a square wheel, a product that's so absurd and so obviously immune to success that it evokes something akin to a sense of pity.

For example:

Zune's sole wireless feature is "squirting" -- I know, I know, it's Microsoft's term, not mine -- music and pictures to any other Zune device within direct Wi-Fi range. Even if the track is inherently free (like a podcast) the Zune wraps it in a DRM scheme that causes the track to self-destruct after three days or three plays, whichever comes first.
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The Zune will be dead and gone within six months.

Perhaps. I certainly won't be buying one.

So remind me again how Microsoft is a "monopolist" with "unfair" market power that allows it to reap "excessive" profits?

Build a better mousetrap and no "monopolist" can stop you.

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More:

Microsoft just invented a currency and they require you to invest in this currency before they can sell you any music.

I encountered this absurd "point system" on Xbox Live (when I bought the original version of Doom for download to my Xbox 360). I had to buy 1,000 points to download the 800-point game. So now Microsoft gets to sit on 200 points worth of my money, quite possibly forever.

That's what Wall Streeters call "float." And in this context it's pure evil and will seriously impede my doing business with Xbox Live in the future (for the economists: "point-float elasticity of demand"?).

I also wonder whether the "exchange rate" -- 1.25 cents per point -- is meant to make purchases seem cheaper than they really are (e.g., Doom for 800 points is really $10), in the tradition of pricing an item at $9.99 rather than $10.00 to "exploit" the gullible:

If Microsoft prices a song at 79 "Zune Points" is it cheaper than a 99 cent song from Apple? I don't know, lets do the math.

79 points * (1.25 cents/1 point) = 98.75 cents
(or approximately 99 cents)
So the answer is "no, the MS song isn't cheaper, it is the same price as Apple's".

Microsoft insists that the bulk-purchase point system reduces credit card transaction fees, allowing it to pass on the savings. Hogwash. By that logic, all retailers should do business solely by gift card. It's all about the float and the "exchange rate mirage."

So despite all its "oppressive" market power, Microsoft appears to have gone out of its way to fail. As I noted previously: All market power is fleeting.

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On the other hand, Microsoft's latest Xbox 360 game, Gears of War, is breaking records. Good stuff sells, crap doesn't. "Monopolist" has nothing to do with it one way or the other.

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On a related note, that other "too big, too powerful" manifestation of monopolistic corporate evil, Wal-Mart, had the worst Black Friday of all the major retailers and the first sales decline in its history. So much for being "too powerful."

Who better to understand nothing about economics than ... a professor of economics?

The American Bar Foundation, a research group, has found in its surveys, for instance, that fewer law school graduates are going into public-interest law or government jobs and filling all the openings is becoming harder.

Something similar is happening in academia, where newly minted Ph.D.'s migrate from teaching or research to more lucrative fields. Similarly, many business school graduates shun careers as experts in, say, manufacturing or consumer products for much higher pay on Wall Street.

And in medicine, where some specialties now pay far more than others, young doctors often bypass the lower-paying fields. The Medical Group Management Association, for example, says the nation lacks enough doctors in family practice, where the median income last year was $161,000.

"The bigger the prize, the greater the effort that people are making to get it," said Edward N. Wolff, a New York University economist who studies income and wealth. "That effort is draining people away from more useful work."

"Useful"? To whom? By what standard? What more objective measure can there possibly be of "usefulness" than a private salary determined by private markets?

Even the Times reporter had to backpedal from that outrageous gobbledygook, noting in the very next graf that "what kind of work is most useful is a matter of opinion, of course..." Opinion, coupled with supply and demand. Of course.

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

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Way over at the other end of the income spectrum:

Facing a shortage of farmhands, Puerto Rico turned to its prison population last year to help harvest its prized coffee crop.

Fearing a similar crisis next year, the Housing Department Secretary has another plan: bring in youth living in public housing in New York City.
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The inmates who participated last year were paid the same as regular coffee pickers -- about $5 per 28-pound bucket of ripe beans -- and got 10 days taken off their sentences for each month of work.
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Over the years, coffee pickers have opted to take less strenuous, better-paying jobs in other sectors.

How "unuseful" of them!

Since when does the Puerto Rico government -- which shouldn't be in the coffee business anyway -- consider itself entitled to "$5 per 28-pound bucket" coffee pickers? So entitled that they're willing to conscript prisoners and shuttle in New York kids (and only New York kids -- can you habla why?) to try to maintain that ridiculous (but "useful") rate?

Here's a radical idea: pay your coffee pickers more money! If the price of "prized" Puerto Rico coffee [sic?] rises, then so be it.

After all, surely those "unuseful" Wall Street lawyer-doctor-MBA-Ph.D.'s will be able to afford it.

The Supreme Court will not review a bizarre decision by the Maine Supreme Court upholding a bizarre law enacted by that state's bizarre legislature denying high school tuition vouchers to students who attend church-sponsored schools:

In Maine, school districts in 145 small towns with no high schools offer tuition for 17,000 students to attend high schools of their choice, public or private, in-state or out-of-state. But religious schools are no longer on the list.

Asking the court to take the case, a conservative [sic*] group, the Institute for Justice, is representing eight Maine families who would receive public tuition funds but for the fact that their children attend religious schools.
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Last April, the Maine Supreme Judicial Court ruled that restrictions on tuition vouchers are a valid, constitutional enactment. The court said the state attorney general and the legislature were motivated by a desire to respect and comply with the Constitution rather than any religious hostility.

This is, of course, utter nonsense. It turns the doctrine of separation of church and state on its head.

"No money for Jewish schools" would pose a First Amendment problem. "No money for Catholic schools" would pose a First Amendment problem. "No money except for religious schools" would pose a (huge) First Amendment problem. But "money for all schools equally" poses no First Amendment problem at all — that's exactly what, one would think, the First Amendment demands. The idea that Maine cannot offer vouchers to all schools equally is preposterous. Whatever truly motivated the Maine legislators, it was not fear of the First Amendment. (The alternative notion that "no money for anyone" is a better libertarian position is a whole other blogpost.)

Meanwhile, I'm still waiting for someone to explain why the same people who don't think twice when Pell Grants (which are just vouchers with a fancy name) are used to pay for tuition at Notre Dame, or Yeshiva, or Brigham Young, then throw constitutional conniptions when someone proposes the same system for elementary and secondary schools. It boggles the mind.

The case is Anderson v. Town of Durham, 2006 Maine 39 (April 26, 2006) (PDF - 43 pages).

More thoughts from Cato@Liberty.


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*Once again we see under- or mis-educated "professional" journalists totally incapable of properly distinguishing between "conservative" and "libertarian." This less-than-competence was rampant in the reporting on Milton Friedman's recent death.

Back to work:

(Click to enlarge. Source.)---

But what do we mean by "authority"? Two recent incidents of police shootings have riled up the righteous rights-based indignation of the usual libertarian suspects. In one, police executing a search warrant for drugs in a house where they had actually bought drugs just hours before shot and killed an apparently innocent 92-year old woman. Of course, the police didn't ask her age upfront, mainly because she was shooting at them first. Go figure.

In the other, undercover police shot — and shot and shot and shot — a car full of bachelor-partying men leaving a strip club that was under surveillance for drug dealing and other offenses. One of the casualties was the groom, who was killed just hours before his wedding. Lost in most of the outrage is the pesky little detail that the car intentionally struck one of the cops, rammed a police van, then backed up and rammed it again. Further details are still unclear.

So, do we get angry at the police, as some libertarians demand? Do we try to blame it all on Hudson v. Michigan? Do we argue that there is some sort of "right to kill (non-misbehaving) cops"?

I'm not so quick to reach such conclusions. Here's a comment I left at an Elite Eleven (i.e., excellent) blog:

My concern is that people often confuse "the police" with "the government."

If you're the beat cop, or the undercover cop, or even the paramilitary SWAT member, then you didn't pass the drug laws, you didn't target the address, you didn't sign the warrant. You're just doing your job. And then someone starts shooting at you. So you shoot back. To which I say: damn right and good job!

We're getting a little too close to the modern-day equivalent of shouting "Baby Killers!" to Vietnam vets (i.e., condemning people who are simply not the problem, but only a symbol of the true problem).

Get angry at the politicians; leave the police alone.

Discuss.

1. Delta sucks. Not as badly as Continental, but it sucks.

2. I realize, more than most, that all tastes and preferences are subjective and no one's demand curve for a good or service is any more "correct" than anyone else's. Having said that, what kind of moron would not pay $28 to be able to pass through express security? Yet if everyone pays the "special" premium, then it ceases to be special. Classic fallacy of composition. The fee should be $75-100 minimum, so at least some people are actually priced out of the service. (And that is about as close to a central planner wannabe as I'm capable of being.)

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To elaborate: Delta, which had changed my itinerary three times since I bought the ticket several months ago, and after I was able to use online check-in without incident on the flight to Las Vegas, mysteriously decided that I could not use web check-in for the return flight. So I had to spend all day today fretting about whether I was on the no-fly list or something. When I inquired at the airport, they said the block was because of the itinerary changes, which again were not my fault and in no way impeded me on the first segment of the trip. If I want this kind of hassle, then I'll simply fly Southwest. (Let the record reflect that the flight is on time and my seat assignment was maintained.)

Diamond and I would like to wish everyone a very happy day and to express our thanks for your continued interest in this blog.

I am spending time with my parents in Las Vegas, so substantive blogging is on hold until Saturday at the earliest.

Gobble gobble...

First the facts:

Charles Littleton says he was only standing up for his rights -- rights he says society continues to lose every day.

That is what got 22-year-old Littleton in trouble. He didn't obey a rule inside Saginaw City Council chambers. That rule is that all men must remove their hats.

Cut to the chase: He got tasered.

We have no video this time, so we cannot draw conclusions about whether he was disruptive or aggressive or whose version of events to believe. It's simply not as cut-and-dry as the UCLA atrocity last week.

But is anyone else seeing what I'm seeing?

all men must remove their hats

Let's assume, arguendo, that a no-hats policy in a legislative gallery is a permissible viewpoint-neutral restriction on expressive conduct. That's a big assumption, given the holding of Cohen v. California, 403 U.S. 15 (1971) (wearing a jacket with "Fuck the Draft" in a courthouse is constitutionally protected conduct). But let's put that aside.

all men must remove their hats

Huh? In the Twenty-First Century a government entity would implement a gender-based restriction on hats? So now we not only have First Amendment difficulties but also Fourteenth Amendment equal protection concerns.

To review: gender-based discrimination is subject to "intermediate-level scrutiny," which means that the discriminatory law must be "substantially related" to an "important" government interest. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (state cannot restrict alcohol sales to young adult men but not young adult women); cf., U.S. v. Virginia, 518 U.S. 515 (1996), (government must show an "exceedingly persuasive justification" for gender-based discrimination).

No court in the country would deem "decorum" a sufficiently "important" government interest, nor deem a gender-based ban to be "substantially related" to that interest. It's quite simple really: Why not just ban all hats? (But again, even that might run afoul of the First Amendment, just not the Equal Protection Clause.)

So, even if young Mr. Littleton was so "dangerous" as to warrant tasering, that is more than offset by the violation of his civil rights. Expect another 42 USC 1983 lawsuit because local hack politicians and bureaucrats don't know basic constitutional law.

(Via Fark.)

If you want to see someone hell-bent on proving himself an ignoramus, then look no further than Michael Kinsley:

So free-market capitalism has decreed three different values for this company [taken private through a leveraged buyout]. One is set by the stock market: the value of all the company's outstanding shares, or "market capitalization." One is what the private investors are offering -- usually a bit more than the market cap. And one is what the private investors sell the company for a blink of an eye later -- which is usually a lot more than the other two. Which of these numbers is the true capitalist price? Which one represents the most sublime interaction of supply and demand?

This is, of course, utter nonsense.

Let's look at Kinsley's three supposedly inconsistent values for his hypothetical taken-private company:

1. The publicly traded price -- the "market cap" -- is indeed the net result of all the supply and demand curves for all the company's equity and debt securities by all the current and potential investors (and the company itself). Nothing exciting there.

2. The private price, which as Kinsley notes is usually higher than the publicly-traded market cap. But this is exactly what ought to happen and is a "contradiction" only to the financially illiterate. Two quick and easy explanations jump out. First is the control premium: owning (and therefore controlling) 100% of a company is not the same as owning "one million times one one-millionth" of that company through passive ownership of stock (which, recall, comes with no control over the day-to-day operations of the firm). Owning an asset that you fully control is more valuable than owning an asset that you do not fully control. This is not a difficult concept. Second is the regulatory cost of "listing" a company (i.e., having it trade publicly on stock exchanges). If you have investors, then you need to print annual reports, have shareholder meetings, staff an investor relations office, etc. Oh, and that pesky little Sarbanes-Oxley law. A private company has lower costs, ceteris paribus, than its publicly traded counterpart, and can therefore operate more profitably, ceteris paribus. Hence a private bidder can and should be willing to pay a premium to the publicly traded market cap. This is not a difficult concept.

3. The turnaround price. Two simple analogies should suffice here. First: You buy a home for $200,000, fix it up for $50,000 plus your own labor and effort, then sell it for $300,000. This is a "pricing contradiction" -- how? Second: Consider the same analogy, except it's a restaurant and you not only fix it up but also change the menu based on your own entrepreneurial research and risk-taking. The restaurant is a hit, profits increase and you sell out at a profit. This is a "pricing contradiction" -- how?

Those who are desperate to find flaws or contradictions in capitalism often end up inventing them, since they are rarely to be found. Kinsley's dumb rant is no different.

More thoughts from Liberty Papers.

But fear not, the "dedicated public servants" of Pahrump don't plan to enforce the comprehensive anti-Hispanic ordinance:

Town business is already conducted in English, the ordinance regulating the display of flags won't be enforced, and the town has no real "benefits" to take away because public aid is administered by the state or the county, officials said.

The flag measure requires an American flag to be displayed at least as prominently as a foreign flag.

Does passing a patently unconstitutional restriction of free speech that you know, in advance, you're not going to enforce make it any less unconstitutional? Or does it just make you a jackass?

More:

Lee Rowland, an ACLU staff lawyer from Las Vegas, told the board the ordinance would invite an expensive lawsuit challenging its constitutionally.

"If you pass an ordinance that is blatantly in violation of the First Amendment, this town will be on the hook," Rowland said.

Damn right. Judges have recourse when plaintiffs file frivolous lawsuits. Perhaps they need recourse when politicians enact frivolous laws. Should legislative immunity really prevent these fools from spending a few nights in jail on "contempt of Constitution" charges? Stated differently, are "activist judges" really more of a threat to the American way of life than activist legislators?

---

For those who need specifics, simply see Texas v. Johnson, 491 U.S. 397 (1989) ("The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.") If burning the flag is constitutionally protected expressive conduct, then surely flying another flag above it must also be protected speech. This is not a difficult concept.

---

(Via CrimProf Blog.)

No unifying theme except that politicians are involved:

ITEM: Representative Charles Rangel (D-NY) has repeated his call for a military draft --

Rangel, a veteran of the Korean War who has unsuccessfully sponsored legislation on conscription in the past, has said the all-volunteer military disproportionately puts the burden of war on minorities and lower-income families.
...
"I don't see how anyone can support the war and not support the draft," said Rangel, who also proposed a draft in January 2003, before the U.S. invasion of Iraq. "I think to do so is hypocritical."

MY TAKE: Huh? "Disproportionately" is meaningless gobbledygook — what could possibly be more "proportionate" than an all-volunteer military? What could possibly be more "hypocritical" than claiming that a war is "just" while fighting it via the most unjust action a government can take — conscription? And — it needs to be said — there is something downright nauseating about a black leader advocating involuntary servitude; it boggles the mind.

Previous thread on the draft, including Rangel, here. More thoughts from Liberty Papers, Bureaucrash, Liberty Papers again.

(SIDEBAR: Richard Posner, always the central planner wannabe, endorses the potential desirability of a draft in his bashing review of Milton Friedman's work. Posner's reasoning: that a draft might be "better" than higher taxes. This is apparently what qualifies as a great mind these days. See my response in the first comment.)

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ITEM: Outgoing Massachusetts governor, and anti-gay bigot, Mitt Romney plans to ask for help from — who else? — activist judges --

Gov. Mitt Romney said Sunday he would ask the state's highest court to order an anti-gay marriage amendment question onto the ballot if legislators fail to vote on the matter when they reconvene in January.

Romney said he would file a legal action this week asking a justice of the Supreme Judicial Court to direct the secretary of state to place the question on the ballot if lawmakers don't vote directly on the question Jan. 2, the final day of the session.

MY TAKE: This grandstanding pandering to the rednecks trumps even the absurdity of Romney's fellow Republican anti-gay bigot, California governor Arnold Schwarzenegger, who vetoed a same-sex marriage bill (i.e., "defied the will of the majority") so that "courts could decide the issue." At least a gubernatorial veto is an actual component of the governmental process in California. There is, however, no procedural basis, none whatsoever, for the Massachusetts Supreme Judicial Court to intervene in this matter. The Massachusetts Legislature is acting (or, more correctly, declining to act) precisely as the state constitution authorizes. The only legitimate response for the disappointed governor is "oh well." Instead, Romney is looking to those very same judges he blasts as "activists." Sometimes you can just choke on the hypocrisy.

Previous posts on Romney here and here.

---

ITEM: DNC Chairman Howard Dean, who once famously insisted that the Democratic platform stated that marriage is between a man and a woman, is now telling gays that they shouldn't be pestering the Democrats for any actual progress on gay rights, but should instead be happy that there are some gay politicians here and there (oh, and that Democrats will raise the minimum wage — which apparently is, somehow, relevant to gay rights).

MY TAKE: Just as Charlie Rangel can introduce "symbolic" legislation to reinstate the draft, the Democrats in Congress can now pass "symbolic" repeals of "Don't Ask Don't Tell," the Solomon Amendments and — most importantly — federal DOMA, regardless of whether President Bush would veto any such legisaltion. Will the Democrats do so? And if they don't, then why, exactly, is being a gay Democrat any less indicative of self-loathing than being a gay Republican?

---

ITEM: Can't have a post like this without including John "Politician" McCain --

I'm a federalist. Just as I believe that the issue of gay marriage should be decided by the states, so do I believe that we would be better off by having Roe v. Wade return to the states. And I don't believe the Supreme Court should be legislating in the way that they did on Roe v. Wade.

MY TAKE: This is a flat-out flip-flop by Mr. Straight Talk, who said back in 2000 that he does not support overturning Roe. But now he's running for president again, which means he has to pander to the Red State Rednecks again. Go figure.

Incidentally, he's wrong as a matter of constitutional law anyway, as I've noted before: If the Supreme Court overturns Roe, that would not "send it back to the states" — it would send it back to Congress.

As for McCain's gobbledygook about gay marriage, there is nothing "federalist" about letting states relegate minorities to second-class citizenship. There is nothing "preferable" about allowing bigotry at the state level instead of the national level — unless of course you're a national politician seeking to sidestep the issue.

No, not waterboarding, this:


I'm not a 42 USC 1983 expert, but it seems to me that...

--demanding that someone you just tasered stand up;

--tasering him again, repeatedly, when he cannot comply;

--tasering anyone, under any circumstances, who is already in handcuffs or otherwise safely restrained;

...cannot possibly be deemed reasonable conduct within the proper scope of one's official capacity.

Bravo to the other UCLA students who, without breaking any law, did their best to intervene.

It's getting to the point where you can't leave your home without a camcorder in your bag and the ACLU on your cell phone's speed dial.

(Via Bureaucrash.)

Everything I ever needed to know I learned in a casino:

--Skill and luck are not perfect substitutes.

--No one cares how rich you are if you smell bad.

--Sometimes "just one more beer" is a very bad idea.

--Sometimes people can speak different languages and still understand each other.*

--Since they don't wash the chips, be sure to wash your hands, a lot.

--Trust is a must or your game is a bust.**

--Lots of bells and whistles don't always mean much.

--Most people around you are straight, which is often no big loss.

--You have to have money to make money.

--Life begins at 21 and doesn't end at 40.

--People will never hesitate to offer their opinion, no matter how dumb it may be.***

And the number one thing I ever needed to know that I learned in a casino:

--You never know what card you'll be dealt next****.

---

*I also learned this from "Lost."

**I also learned this from junior bowling league.

***I also learned this from blogging.

****Forget the box of chocolates; blackjack is more fun with fewer calories.

I wish I had a deep philosophical essay to share with you about turning forty. But I don't.

At first I thought maybe I'd chronicle where I was — geographically, professionally and emotionally — at other milestone ages, such as 18, 21 aqnd 30. But I think that would have bored you.

The one thing that keeps going around and around in my head is that all the incredible positives in my life — finances, dog, blog, location, family, health, etc. — are offset not by negatives, but by zeroes — no boyfriend, no real clique, no prospects for further advancement in my job, no real adventures other than my travels. This remarkably comfortable life I lead — is basically it.

And what scares my is that none of that scares me. Sometimes I think that it should.

When I read other people's blogs — especially the personal blogs and double-especially the gay personal blogs — stuff actually happens to them: they move, they get new jobs, they write dissertations, they come out of the closet, they have broken bones, they have broken hearts. Exciting stuff like that.

While I sit back, give my dog a belly rub and watch my bank account and my blog readership grow.

One of the great rules of Wall Street is the old saying, "You can eat well, or you can sleep well, but not both." Except me — I do both pretty well. But I do both alone. Oh well...

And again, I don't feel depressed about this — I feel befuddled that I don't feel depressed about this. It's like I felt twenty years ago: "I think I'm supposed to have started liking girls by now..." Instead, it's "I think I'm supposed to have had a mid-life crisis by now."

Do the bigots have a reparative therapy for that? ;-)

---

Did I say that I sleep alone? Never mind.

(Comments are closed for this post.)

"It is by the grace of Gd that a man of Bolton's character and caliber has not walked away from the miasma of mediocrity, the slings and arrows of the 'looters and moochers' who aren't fit to wipe his boots. 'The hatred of the good for being good.'

He stays and fights the great fight. Unbelievable. Another indication that there is a Gd. And that the men that Ayn Rand wrote of really do exist. Bolton is one of those men." [Emphasis in original.]
--Source.

Two hasty stitches:

1. "Ayn Rand" and "G[o]d" simply do not belong in the same paragraph. Ever.

2. Bureaucrats are not Randian heroes. Ever.

Not-quite-plagiarized (but close) from PoliBlog.

We have three contestants this year:

--America's Roman Catholic bishops, who — when not busy dealing with the Church's countless boy-rape scandals — are busy trying to convince gays that the Church doesn't actually hate them, but just loathes them:

The guidelines welcome gay people, but they also affirm church teachings that "homosexual inclinations" are inherently disordered. While having such inclinations is not sinful, gay sexual activity is, according to the core teachings.

In other words, call yourself Catholic, show up at church, drop some indulgence money in the collection plate, and nod sheepishly when we tell you that, despite your being hell-bound, we still embrace you — sorta kinda. Which all makes so much more sense than, say, just going to the United Church of Christ instead.

--The Baptist State Convention of North Carolina, which takes, shall we say, a more consistent approach to the subject:

The vote changes the convention's long-standing laws, which previously only required its members to support the convention through cooperation and financial contributions. Now any churches that "knowingly act to affirm, approve, endorse, promote, support or bless homosexual behavior" will be barred from membership.

For perspective, this leapfrogs the North Carolina Baptists over the Southern Baptists, who don't grant themselves the authority to investigate allegations of — gasp! — gay-friendliness. Sixteen "moderate Baptist" [sic?] churches in North Carolina will almost certainly be expelled for their insufficiently holier-than-thou attitude toward gays.

--A late entry: The Presbyterians --

On Wednesday in Pittsburgh, the Rev. Janet Edwards will go on trial before a Presbyterian Church tribunal for officiating at a same-sex marriage ceremony. Earlier this year, the Redwoods Presbytery in Northern California acquitted a minister in a similar trial, ruling that ceremonies for same-sex couples are not "contrary to the essentials of the Reformed faith."

Of course, to the Catholics -- who demonstrate God's love for women by refusing to let them become priests -- the Presbyterians are probably all hell-bound anyway for ordaining a female reverend in the first place. The gay tolerance is, they will likely tell you, just the next logical progression down the slippery slope away toward modernity. None of this would have happened if the Church had not abandoned the Inquisition. Go figure.

---

I guess it's a good thing that God loves us — because these most un-Christian of Christians sure don't.

More thoughts from PHB.

---

Being a rather bad driver myself, my favorite Twit was always Oliver St. John-Mollusc. How about you?

A reminder that this is Birthday Week and that substantive blogging will be minimal.

Having said that, I give you "Communism v. Capitalism"

Communism:


Capitalism:


(Both via Boing Boing.)

To review: I had predicted that ousted Pennsylvania Senator Rick "Man on Dog" Santorum would be tapped to replace Closet Ken Mehlman as Chairman of the Republican National Committee — long before Mehlman announced his "long-standing" intention to step down when his term expired.

Well, I was close:

Florida Sen. Mel Martinez, a prominent Hispanic who previously served in President Bush's Cabinet, will assume the high-profile post of Republican National Committee general chairman, GOP officials said Monday.
...
Martinez, of Cuban descent, will fill the post as the GOP is seeking to make inroads with Hispanics, considered a swing voting group.

Hispanics are only one of the two birds killed by this stone — evangelical Christian bigots are the other:

* Scored a zero on the Human Rights Campaign 2006 scorecard measuring support for equality and fairness in the 109th Congress.

*An ardent supporter and co-sponsor of the Federal Marriage Amendment. Martinez has been on the record opposing Republican Senator John McCain's states-rights stance on the issue saying, "it isn't good enough to say, 'Leave it up to the states. If we leave it up to the states we will see the erosion of marriage that we've seen by activist courts, which we otherwise will not see if we protect the institution of marriage at the federal level."

* Attacked his 2004 Republican primary opponent for supporting hate crimes legislation accusing him of catering to the, "radical homosexual lobby."

* Ran a 2004 campaign that was so anti-gay and divisive that Florida's Republican Governor, Jeb Bush, called on him to stop the attacks. Also because of his anti-gay tactics, the St. Petersburg Times revoked their endorsement after [he] sent a mailer against his opponent calling him, "the new darling of the homosexual extremists."

More on Martinez' voting record here. There is very little — at least nothing meaningful — about him that libertarians can embrace.

To the extent that Martinez gets to set the agenda for the GOP and to prioritize certain Republican candidates over others in the 2007 and 2008 elections, we should expect more pandering to the Red State Rednecks, more anti-gay vitriol, and — perhaps most depressing — a wider schism between conservatives and libertarians for the next two years or more.

Do the Republicans really need to be trounced again before they get the message?

More thoughts from Media Matters, Liberty Papers.

The New Jersey Supreme Court has declined to hear a challenge to a bizarre state law that requires lawyers -- all lawyers -- to help pay physicians' malpractice insurance premiums:

In 2005, a lower-court judge in Union County ruled that while lawyers as a group did not necessarily create the malpractice crisis, the fee is constitutional because there is a close tie between the medical field and attorneys.

Huh?

There are, apparently, only a few hundred New Jersey attorneys who actually handle medical malpractice claims, and there is no reason to think that most, or even any, are "ambulance chasers."

But so what? Make every single lawyer in the state pay a fee -- not to the state, its courts, or taxpayers, mind you -- to physicians. Direct private-to-private transfers, in the name of the "public good."

I repeat: Huh?

An interesting part of the litigation was that the New Jersey Bar Association, it its petition for appeal, acknowledged that the law is subject to mere "rational basis review" (lawyers, like gays, are not a suspect class deserving heightened scrutiny of discriminatory laws):

"We believe the complex constitutional questions involving the separation of powers and equal protection clauses that this case presented were ripe for consideration. ... We firmly believe the factual and legislative record is devoid of any compelling evidence of a real health-care crisis, and certainly of any rational basis for imposing this tax burden on the legal profession," the bar said in a statement.

Passing a law without any evidence that it is warranted is the height of irrationality -- and it is a core judicial responsibility to strike down irrational laws. So, yet again, we see courts abdicating bona fide judicial review of an irrational law and converting rational basis review into absolute deference. Splendid.

And we also see, yet again, private-for-private transfers bought from politicians and bureaucrats under the cloak of the "public good." Seventy-five dollars may not be a ruinous taking to an attorney, but this scheme is no different in principle from the monstrous decision in Kelo v. New London. Other apt analogies are:

--the abhorrent "Byrd Amendment," which gave protective tariff revenue not to the government but to private businesses;

--the War on Wal-Mart, in which "the public" means not consumers but supermarket unions;

--the War on Obesity's taxation or banishment of trans fat, junk food and fast food, in which the government controls people's behavior (even the non-obese) in the name of "protecting" them (or, worse, in the name of saving the government money).

And the New Jersey Supreme Court was doing so well up until now. Oh well.

(Via Kevin, M.D.)

"You ask how to fight an idea? I'll tell you -- with another idea."
--Ben-Hur

"Guests are reminded that Platform One forbids the use of weapons, teleportation ... and religion."
--Doctor Who, "The End of the World"

Two completely unconnected stories over the weekend that share a common concern.

First, Elton John proves that celebrity idiocy is non-partisan:

"I would ban religion completely, even though there are some wonderful things about it," the British singer said in an interview with the Observer newspaper on Sunday.

"Religion has always tried to turn hatred toward gay people. It turns people into hateful lemmings and it is not really compassionate."

The singer, who tied the knot with long-term partner David Furnish in a civil ceremony last year, said he admired the teachings of Jesus Christ, but disliked religious bodies.

Oh my goodness.

John is of course engaged (even if unwittingly) in the same rank hypocrisy that the religious bigots themselves subscribe to: unbridled majoritarianism. "Disliking" something is not grounds for banning it. Apart from specific wrongs by specific institutions (e.g. the Roman Catholic Church's boy-rape scandals; evangelical churches violating the tax code), the proper way to combat the shortcomings of a flawed theory or belief system is to show why it is in fact flawed -- the marketplace, or battlefield, of ideas. Why sink into the muck of the bigots, and in the process give them a tool to work with? ("See, there really is a "homosexual agenda"!)

Moreover, by provoking religious bigots with hateful rhetoric, not only does John arm his enemies, but he also disarms his allies. What, exactly, do gays want? Two things: (1) to be left alone, and (2) for personal views to be kept out of public policy. John's hypothetical "(3) ban religion" doesn't dovetail very nicely with either of those. So now non-militant gays (such as libertarian gays) need to divert time, energy and resources -- just as I'm doing now with this post.

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Second, a bigot college student in Missouri training to become a social worker clashed with her militant pro-gay professor and walked away with both a major legal settlement and the moral high ground:

The lawsuit alleged that Kauffman demanded that students sign a letter supporting homosexuals being foster parents. Brooker refused to sign the letter, which was written by Kauffman, because she said the issue it supported went against her Christian beliefs. The lawsuit also said Brooker had voiced her concerns about the letter during class and had agreed to do a project on a different subject.

The lawsuit alleged that the professor penalized the young bigot via an unfairly low grade and a high-level disciplinary "grievance."

Bottom line: The professor abused his position to push an agenda and got smacked down by the administration before he could be smacked down by a judge and jury. The university completely capitulated and gave the student just about everything she was suing for. Which, unfortunately, was exactly the right thing to do.

Keep in mind that this was not a social worker being told not to discriminate against gays in the scope of her future employment as a social worker (especially if she works for a government agency). That would be perfectly permissible both legally and ethically, and the young bigot will bump into that brick wall later in her career.

This was instead a case of compelled speech in the context of a college student just trying to complete a course -- a flagrant violation of the First Amendment.

So like with the Elton John incident, gays and their supporters come off looking like the intolerant, non-diverse authoritarians, while the bigots are turned into victims. Stupid, stupid, stupid.

Activism that degenerates from "lifting gays up" to "keeping bigots down" only hinders the quest for gay rights. Remember, it's about equality and justice, not payback.

The complaint in the now-settled case is available here (PDF - 30 pages). Via Joanne Jacobs.

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Bigots sometimes like to insist that "tolerance" can be quite intolerant. Why give them a data point to help their cause? Stupid, stupid, stupid.

Please join me in wishing a most happy Fifth Birthday to the Master and Commander, my Bundle of Brindle, my Department of Homeland Security, my daily aerobic workout, my roommate, my dog, Diamond.

Diamond is an American Staffordshire Terrier mix. She was rescued by the ASPCA (for those of you who watch Animal Precinct — her rescue was filmed but she didn't make the cut for TV — Hollywood is so cutthroat!).

Diamond is a survivor of the highest order. She and her brother originally were with an older man of limited competence who had an adult son of limited morality. As the older man's mental state deteriorated, his son's moral state deteriorated proportionally with regard to the dogs' care. In other words, they were left to starve to death.

Telephone workers in their cherry-picker saw the tragedy below. They notified Humane Law Enforcement. Diamond was rescued. Her brother didn't make it.

Diamond had been kept in a fenced area with zero, absolutely zero, interaction with people or other dogs besides her brother. Try to imagine being suddenly thrown into the loving but confusing world of the ASPCA. She was such a wreck that she was put on doggy Xanax.

The New York ASPCA is a no-kill shelter. Diamond was in their care for four months, quasi-adopted by several members of the staff before a certain recent law school graduate saw a can't-say-no picture of her on the Internet. That was in March 2004. The rest is history.

Here are some classic Diamond moments from the past year:













Best dog in the world.

Inside the Vault = An intermittent string of weekend posts detailing aspects of my personal life.

I should have pointed this out earlier, but starting yesterday I'm engaged in a weeklong celebration of my fortieth birthday this coming Thursday.

Last night a friend and I saw Wicked and drank into the night and recuperated brunched into the morning. Hence the absence of posting.

This Wednesday I'll be at Foxwoods (alone, alas — care to join me?) for three days. So the light blogging will continue until next weekend.

Enjoy your week everyone — I certainly will!

P.S. Sunday is also Diamond's fifth birthday!