A Stitch in Haste

You cannot access this blog in China.
(Via Below the Beltway.)

Information on efforts to repeal "Don't Ask, Don't Tell" in the US Senate forthcoming.
--Service-Members Legal Defense Network website

With much fanfare and self-back-patting, Representative Marty Meehan and the Service-Members Legal Defense Network have, yet again, touted the introduction of the Military Readiness Enhancement Act — which would repeal "Don't Ask, Don't Tell" — in the House of Representatives.

And, once again, there is no companion bill in the Senate.

Representative Meehan's press conference:

As a follow up he was asked when and who would sponsor a companion bill in the Senate. No one was sure who would sponsor or when but conceded that one would be introduced before the 2008 elections.
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The next question then fell to the particulars of the companion bill such as who in the Senate is supportive of introducing legislature [sic]. The already knowns of Ted Kennedy, Russ Feingold, and [Hillary] Clinton were named as supporters.

While there is not as of yet a companion bill in the Senate, Dixon Osburn expects one this year but there has not been anyone named as of yet to sponsor such legislation.

So, bottom line, "full of House and fury, signifying nothing."

Meanwhile, a SLDN spokesperson responding to my comment in this post:

There WILL be companion legislation in the Senate in 2007. That's likely to be introduced in the Spring, and will mark the first time the Senate has considered a bill to repeal "Don't Ask, Don't Tell" since the law was first implemented in 1993. Stay tuned for information on which Senators will sponsor the legislation. :-)

Oh I'm staying tuned alright. In the meantime, I'll enjoy the dead air.

My problem of course is not with Representative Meehan or with the SLDN. My problem is with every Democratic Senator who takes the gay vote for granted while doing little if anything for gay rights.

Senators such as Hillary "Armed Services Committee" Clinton and Barack "Veteran Affairs Committee" Obama.

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On the inevitable presidential veto should a bill actually reach his desk?

I asked the Rep. what he thought he chances were of support from the President and he basically didn't have much of an answer other than it's important to focus on the short term goals.

Discuss.

Think the mindset of Venezuela's socialist dictator is an anomaly?

Some Seattle school children are being told to be skeptical of private property rights. This lesson is being taught by banning Legos.
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According to the teachers, "Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation."

The children were allegedly incorporating into Legotown "their assumptions about ownership and the social power it conveys." These assumptions "mirrored those of a class-based, capitalist society — a society that we teachers believe to be unjust and oppressive."
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At the end of that time, Legos returned to the classroom after the children agreed to several guiding principles framed by the teachers, including that "All structures are public structures" and "All structures will be standard sizes."

I can just imagine the conversation the next day between the bully and the scrawny kid:

"Your lunch money is oppressive and class-based. So give it to me."

"Perhaps — let's collaborate with the rest of the class and engage in full democratic participation!"

Of course, given that no students ever really owned the Legos in the first place, it's trivial for a collectivist-minded teacher to "convince" the youngsters that — voilà! — they don't really own the Legos ... and therefore should not really own anything else either. I wonder if the teachers extended the discussion to, e.g., the children's toys, or clothes, or pets. Try getting the kids to be "skeptical of property rights" in those contexts.

Too bad also that the original "class-based, capitalist" Legotown was not used to illustrate the concepts of, say, zoning laws, property taxes, or eminent domain — all of which are quite instructive examples of "collectivity, collaboration, resource-sharing, and full democratic participation."

Note also that the "guiding principles" were "framed by the teachers." Blind submission to authority never seems to escape the curriculum, does it?

Or maybe they could just go on a field trip to Venezuela.

(Via Distributed Intelligence. More thoughts at Cato@Liberty.)

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POST SCRIPT: The issue of the magazine, Rethinking Schools, that first documented the Lego ban also ran the following articles --

• Investigating Slavery in New York City
• Algebra Students Look at Peak Oil
• Teachers in Mexico Face Oppression and Violence

Nope, no bias or agenda there.

(And for those who don't understand the title.)

"We don't want the companies to go ... we just want them to be (minority) partners."
--Socialist dictator Hugo Chavez of Venezuela.

Anyone who's read Atlas Shrugged understands this statement full well. It's very easy for a thug to seize a productive asset; it's less easy for him to keep it productive. It's very easy for a statist to convince poor, ultra-unskilled workers to accept authoritarianism -- and its plunder; it's less easy for him to convince skilled professionals to accept authoritarianism -- and be plundered. It's very easy for a thief to steal; it's less easy for him to steal for a living.

Every single person affiliated with any capitalist enterprise -- whether investor, manager or employee -- should, on both moral and consequentialist grounds, flee Venezuela entirely. Better to lose a finger once than to be bloodsucked forever.

"I am leaving it as I found it. Take over. It's yours."
--Ellis Wyatt, "Atlas Shrugged"

More thoughts from Cato.

A hat trick* of nanny-state nonsense from the U.K.

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ITEM: Fats Britannica —

British social workers will meet an eight-year-old boy who weighs almost 200 pounds on Tuesday to decide whether he should be taken away from his mother after she refused to stop feeding him junk food.

Conner McCreaddie's mother said on Monday her 196-pound son refuses to eat fruits and vegetables, but rejected suggestions she put a lock on the fridge.
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Connor, from Wallsend, Newcastle, is four times the healthy weight of his peers and was even heavier before Christmas, prompting his 35-year-old mother to seek help. He lost weight following advice from health workers and a dietician at the start of the year.

Local authorities have issued a statement saying they worry about the schoolboy's health.

MY TAKE: Dragging a child away — kicking and screaming, most likely — from his mother to put him in foster care, after he has successful initiated a weight-loss program? Sorry, but that does not qualify as "worrying about the schoolboy's health." There are far worse things for a child than being fat. Incidentally, if the mother is suffering from depression, then how will taking her son away — kicking and screaming, most likely — transform her into a better mother? And where is the NHS, Britain's "successful" universal health care system in all this? (More thoughts from Hit & Run.) UPDATE: No sooner had I posted this than the news link was updated to announce that the boy will not be separated from his mother. Even the smallest doses of sanity are always appreciated.

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ITEM: The Madness of Not-King Charles —

Prince Charles has suggested banning fast food chains like McDonald's is the key to improving children's eating habits.
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On a visit to the Imperial College London Diabetes Centre in Abu Dhabi he appeared to suggest to a nutritionist that banning McDonald's was the "key".
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He asked ... "Have you got anywhere with McDonald's, have you tried getting it banned? That's the key."
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McDonald's said other members of the Royal family had visited the chain and "have probably got a more up-to-date picture of us."

MY TAKE: Keep in mind that Charles was in the UAE — a goatherder dictatorship where a statement such as "ban something for no other reason than because you personally don't like it" actually seems reasonable. One would hope that he knows better than to propose a ban in a free, or semi-free, society such the U.K. (but, cf., this post).

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ITEM: Rum, "what" and the lash?**

Motorists face random breath tests under Government plans to cut the drink driving death toll.

Ministers feel giving police the power to stop any driver would be a powerful deterrent, The Times said.

Current laws only allow officers to stop motorists who have committed a traffic offence or appear to have exceeded the booze limit.
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It will also consider placing a greater duty on pub landlords and restaurant owners to help stop drink driving.

MY TAKE: As bad as our automobile search-and-seizure jurisprudence is here in America, we are still not (yet) at the point where any police officer can simply stop any motorist for no reason and demand a breathalyzer test. This goes way beyond objectively administered and supervised sobriety checkpoints (which are troubling enough). This measure would legitimize all pretext stops — any officer could stop any motorist at any time for any reason — or for no reason at all. Wouldn't revisiting penalties and BAC limits (Britain's legal limit 60% higher than the rest of Europe's) be a wiser, and less oppressive, first response than abridging what few individual rights still exist in the U.K.?

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*Do they play hockey in the U.K.? Sorry, I don't know any cricket terminology.

**For those unfamiliar with Churchill, see here.

Politics most foul:

Carol Lam, the former United States attorney for San Diego, is smart and tireless and was very good at her job. Her investigation of Representative Randy Cunningham resulted in a guilty plea for taking more than $2 million in bribes from defense contractors and a sentence of more than eight years. Two weeks ago, she indicted Kyle Dustin Foggo, the former No. 3 official in the C.I.A. The defense-contracting scandal she pursued so vigorously could yet drag in other politicians.

In many Justice Departments, her record would have won her awards, and perhaps a promotion to a top post in Washington. In the Bush Justice Department, it got her fired.

Ms. Lam is one of at least seven United States attorneys fired recently under questionable circumstances.
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The Congressional Research Service has confirmed how unprecedented these firings are. It found that of 486 U.S. attorneys confirmed since 1981, perhaps no more than three were forced out in similar ways -- three in 25 years, compared with seven in recent months.

The President gets to appoint federal judges, but federal judges are not political appointments. The Attorney General may be a political appointment -- the last three certainly have been. But not everyone who serves under a political appointee is himself a political appointee. For example, ambassadors are political appointees, but career diplomats generally are not. The Director of National Intelligence is a political appointee, but CIA operatives aren't. The Pentagon is teeming with both political and non-political civilian appointees. And so on.

"United States Attorney" is not a constitutional office. It exists because Congress brought it into existence. Can Congress not, therefore, change it from a political to a fixed-term appointment?

So here's my modest proposal: Change the term of office for United States Attorney from "serves at the pleasure of the President" to "seven years."

Discuss.

More thoughts at Distributed Intelligence.

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Some people are, meanwhile, quite passionate about wanting to scrap lifetime appointment for Article III judges. I'm both uninterested and disinterested in the topic, but I wouldn't grab my torch and pitchfork over a proposed constitutional amendment changing Supreme Court appointments from "for life" to "for fourteen years" or "for twenty years" or some other sufficiently long period. Discuss.

All kinds of reports from the gay rights trenches:

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ITEM: Boo for conservatives --

A U.S. group that spearheaded an unsuccessful push for a federal constitutional amendment banning gay marriage has reset its sights on state lawmakers, conceding it has little chance to successfully change the U.S. constitution in a Democrat-controlled Congress.

The Washington-based Alliance for Marriage will try to build a nationwide network of state lawmakers who would support such an amendment to the Constitution, the group's leaders said in an interview with The Associated Press on Monday, a day before they planned to unveil their new effort.
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"We believe the day is coming when the Marriage Protection Amendment will be sent to the states," said Bob Adams, vice president of the alliance. "The time to organize for that is now, not 10 years down the road."

MY TAKE: Damn right 10 years down the road is not the time. Ten years from now today's younger politicians will be apologizing for their anti-gay votes.

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ITEM: Boo-hoo for conservatives?

A group of influential Christian conservatives and their allies emerged from a private meeting at a Florida resort this month dissatisfied with the Republican presidential field and uncertain where to turn.

The event was a meeting of the Council for National Policy, a secretive club whose few hundred members include Dr. James C. Dobson of Focus on the Family, the Rev. Jerry Falwell of Liberty University and Grover Norquist of Americans for Tax Reform.
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But in a stark shift from the group's influence under President Bush, the group risks relegation to the margins. Many of the conservatives who attended the event, held at the beginning of the month at the Ritz-Carlton on Amelia Island, Fla., said they were dismayed at the absence of a champion to carry their banner in the next election.

MY TAKE: Cry me a river. In actuality, radical social conservatives have at least two candidates they could rally around (Sam Brownback and Mike Huckabee). What they don't have is a winning candidate they could rally around. So they're sitting around waiting for a winner to emerge, at which time they're concoct some post facto excuse for supporting him. So much for the "values" voters controlling the GOP anymore.

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ITEM: Yay for liberal politicians?

Wary conservative leaders, as well as gay-rights advocates, share a belief that at least two measures will win approval this year: a hate-crimes bill that would cover offenses motivated by anti-gay bias, and a measure that would outlaw workplace discrimination based on sexual orientation.

Also on the table -- although with more doubtful prospects -- will be a measure to be introduced Wednesday seeking repeal of the "don't ask, don't tell" policy that bans openly gay and lesbian Americans from serving in the military.

MY TAKE: Even if these measures pass, President Bush would likely veto them, and neither house of Congress would have the votes to override. So the "progress" is fractured at best. Meanwhile, Pam's House Blend has more details on the push to repeal Don't Ask, Don't Tell, while Outright Libertarians remains unimpressed at best by the Democrats. We report, you decide.

Activists, and sometimes politicians, like to demand resignations in the wake of scandal. It makes for a good sound bite.

So here's my question: Shouldn't these same activists and politicians be calling for the resignation of New York City Health Commissioner Thomas Frieden, who apparently has been more concerned recently about banning trans fats than ensuring that his health inspectors are actually doing their jobs properly?

A city health inspector gave a passing grade to the notoriously filthy, vermin-infested KFC/Taco Bell just one day before shuttering it — after news cameras recorded a rat rampage through the Greenwich Village restaurant.

"We're looking to see if the inspector dropped the ball on this," said Health Department spokesman Geoffrey Cowley. "I think it may not have been as rigorous an inspection as it should have been."
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After receiving three rodent-related complaints about the establishment to 311 in the past few weeks, the inspector visited Thursday and uncovered some violations, said Cowley - but allegedly not enough for a failing grade.
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This time, they found a whopping 92 points worth of health-code violations — far surpassing a failing grade of 28.

As a libertarian, I am less uncomfortable with a city health department that actually conducts objectively crafted inspections of eateries* than I am with a city health department that is run by an out-of-control activist nanny-stater who spends his time crusading for the codification of his subjective preferences on topics such as diabetes, trans fat and baby formula. But the former ought to be a necessary condition of the latter; if you can't make sure that your department performs it core functions, then you lose standing to perform secondary functions. "If you don't inspect your meat, then you can't ban any pudding! How can you ban any pudding if you don't inspect your meat?"

I demand the resignation of Thomas Frieden.

(To which the only rational response is, I concede: "Yeah right, good luck with that.")

UPDATE: The health inspector who originally gave the eatery a passing grade has been suspended. That was the easy part -- what about Frieden himself?

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(*I do not concede, however, that health inspections, even mandatory health inspections, could not conceivably be performed privately — see generally, "Zagat's," "Good Housekeeping," "Consumer Reports," "Underwriters Laboratories" or "American Association of Law Schools.")

The U.S. Postal Service, which in its finite wisdom charges $4.05 (rather than a nice, round $4.00) for Priority Mail, has jumped the shark by proposing to raise the fee for a First Class letter from "not forty cents" to "not forty cents" —

A postal regulatory commission recommended a 2-cent increase in the cost of mailing a letter Monday and urged the Post Office to introduce a "forever" stamp valid for first-class postage even when rates rise.
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The stamp, which would not show a denomination, would sell for the first-class rate at the time of purchase and would remain valid for mailing permanently, even if rates increase.

That means folks who stocked up on forever stamps could say goodbye to those annoying 2-cent or 3-cent stamps that have to be added to letters every time rates go up.

So here's your homework for tonight: Derive the formula for the optimal inventory of "forever stamps" given:

--Your expectation of your need of postage.
--Your expectation of future postage rate increases.
--Your expectation of future interest rates.

(Hint: It's essentially the same as the formula for optimal ATM usage. You did know that there is a formula for optimal ATM usage, right?*)

Of course, in the real world, you might not care much about whether it is wise to buy many — or any — "forever stamps;" most people don't use much postage anymore, and "betting wrong" would only cost you a few strays cents here and there, and maybe one extra trip to the Post Office.

But businesses still rely on postage, and some businesses rely on it to a great deal (e.g., Netflix, Eddie Bauer). If postage matters, then the decision whether to buy forever stamps can matter a great deal to profits. Someone at the firm has to sit down, calculate (or estimate) his inputs and then run (or at least guess) the formula. The better the analysis, the better the firm will do financially.

Who do you think will be making those calculations? The owner and her professional managers, or her semi-skilled or unskilled entry-level employees?

Now repeat that thought experiment, not with postage, but with every other input in the production process — raw materials, work-in-progress, cash and credit lines, real estate. Imagine making similar decisions, not just about how many of which kind of stamp to buy, but about every single aspect of the firm's operations: where to locate, whom to hire, debt-or-equity, advertising, rent-or-buy, how to price, how to respond to competitors (and government), how much to devote to R&D. Every single nook and cranny of the business has to be constantly re-evaluated and revised, every single day. By someone.

Now remind me again how capitalists are "unnecessary," how entrepreneurship and risk-taking are not factors of production, and how all value in a firm is created only by the workers, who are in turn merely "exploited" by "greedy" capitalist investors?

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*And if you didn't know it, then don't worry — economists have formulas for that, too.

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For Discussion: Wimbledon to pay female tennis winners equal prize money as men. Discuss in the context of this analysis. (See also EclectEcon.)

One of the many ways that basic constitutional rights have been blanked out over the decades has been through the disgrace of "regulatory takings," in which the government doesn't physically seize your property (as in Kelo v. New London), but simply forbids you to do what you want with it. See, e.g., "wetlands" preservation.

A pending example in New York:

State legislators announced a plan Sunday to ensure Starrett City apartments remain affordable by protecting the Brooklyn complex under the state's rent-stabilization laws.

Under current law, buildings that opened in 1974 or later — such as the 46-building, 5,881-unit Starrett City — are exempt from rent-stabilization rules if they leave [government subsidy programs]. Starrett, which was just sold for $1.3 billion, is enrolled ... but its new owners could potentially withdraw from the program.

The bill, sponsored by Assemb. Vito Lopez (D-Brooklyn), would automatically protect any property that leaves the programs with rent-stabilization, no matter what year the building was built and occupied.

For year after year, Starrett City played by rules and obeyed the law. Now, when they want to — gasp! — still follow the rules, by opting out of the game — suddenly they might not be allowed to? It's like the bully who, having lost the game, demands "two out of three," and then "three out of five," ad infinitum.

And for the consequentialists (of which I am not one): what kind of signal does this send to real estate developers and other entrepreneurs? "Do not build housing in this city. If you build it, they will come — and steal it (or its profit potential) from you."

The current and intended future owners of Starrett City did everything that was asked of them for over thirty years. They are entitled to the deal they were promised.

The fact that so many activist legislators can't grasp this simple truth is another reason why all politicians are, by definition, moral defectives.

Time to clean out the aggregator:

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ITEM: Tennessee is considering allowing redress for paternity fraud, the bizarre injustice in which a man cannot challenge a child support order even after conclusively proving via DNA that he is in fact not the father. My previous posts on the subject here. (Via MedSkool.)

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ITEM: The latest demonstration that Britain's socialized medicine scheme, the NHS, rations just like any private paradigm does, but less intelligently? Severe ambulance shortages. How exactly can a supposed "right to health care" not include a "right to an ambulance in an emergency"? (Via John Ray.)

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ITEM: Tom Vilsack has dropped out of the race for president. So much for the "Next Bill Clinton."

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ITEM: I noted recently that radical theocrat parents are increasingly home-schooling their children, not to provide a "better" education, but rather to provide a redacted education, with pesky details such as evolution conveniently omitted from the kitchen curriculum. Here's a related story:

Tonia and David Parker of Lexington sued after their 5-year-old son brought home a book from kindergarten that depicted a gay family. Another Lexington couple joined the suit after a second-grade teacher read the class a fairy tale about two princes falling in love.

Both couples claimed Lexington school officials violated their parental rights to teach their own morals to their children. They said they wanted to be notified before gay couples were discussed so they could remove their children from classrooms.

They sued. They lost. Which is as it should be. Gay marriage exists in Massachusetts; gay families exist in Massachusetts (and elsewhere) — that is a fact. Massachusetts schools should therefore be teaching about that fact. Children have a need, and a right, to learn that fact, just as they have a need to learn about any other factual topics. Facts are neither moral nor immoral. Previous post here.
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ITEM: On the other hand —

A Christian legal group has sued a school district on behalf of a 10-year-old boy who claims his rights to religion and free speech were violated when he was not allowed to wear a Jesus costume during Halloween activities.
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The principal, Patricia Whitmire, told the boy's mother that the costume violated a policy prohibiting the promotion of religion, according to the lawsuit. Whitmire suggested that the fourth-grader, whose costume included a robe, identify himself as a Roman emperor, the suit states.

Um, the Roman Emperors considered themselves divine too. Go figure. Seriously though, I have to side with the young messiah in this instance: A school district singling out one particular costume theme gets the First Amendment exactly backwards. Viewpoint-neutral banning of every conceivable religious costume (angel? devil? Thor?) might be a viable policy, and compulsory Jesus costumes would of course be an obvious no-no. But Jesus and only Jesus? What was the principal thinking? Related post here.

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ITEM: Similar fact pattern here — Is chanting "We Love Jesus" at a basketball game against a Jewish school offensive? Should the Catholic school principal be allowed to ban such chants and to require the students to undergo "sensitivity training"? We report, you decide.

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SCOTUS WATCH: Two cases probably of interest to readers are soon to be argued before the Supreme Court.

One is a Fourth Amendment seizure case, Scott v. Harris, which asks whether the police may use force (e.g., bumper-tapping) to stop a fleeing vehicle. My first reaction is "yes, of course," based mainly on the danger to public safety of a speeding vehicle — but, cf., this post. SCOTUSblog has a primer. (Note that the case involves other arcane principles of standing and immunity that may preclude the Court from even reaching the Fourth Amendment questions.)

The second case I hinted at previously: Hein v. Freedom From Religion Foundation. To review: There is a long-standing rule that any taxpayer may, without demonstrating any proximate harm, sue to challenge a government expenditure on Establishment Clause grounds. At issue in Hein is whether that exemption from showing standing also applies to so-called "faith-based initiatives." Those of who fear theocracy certainly hope the answer is "but of course." ACSblog has a primer, as does FFRF.

Some reports from the field:

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ITEM: A Maryland legislator wants the state to seize unused gift card values, on some kind of nonsensical escheat theory. Because the state somehow deserves the money more than the store does. Somehow. (Incidentally, this same state legislature voted in 2005 to ban expiration dates on gift cards -- so they would first have to re-authorize expiration dates so they could then seize the unused funds.) (Via Cato@Liberty.)

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ITEM: Also from Maryland -- a proposal to ban plastic genitals from truck hitches. I'm not sure what that even means, but if the justification for the ban is that they are "vulgar and immoral," then it's safe to conclude that this is an faux issue. (Via How Appealing.)

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ITEM: Clifton, New Jersey, proposes specific penalties for allowing your dogs to bark too long (as opposed to the already existing prophylactic noise ordinance). The threshold is 30 minutes of barking on two consecutive days. The claim is that the specific law will be easier to enforce. Which might be true -- if police spend their shifts loitering near your property with a stopwatch to time your dog's barking rather than, say, fighting real crime.

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ITEM: Two New York City Council members want the state to make public lewdness (i.e., flashing) a sex crime, complete with registries, residency restrictions, etc. It seems to me that a sex crime should actually involve sex.

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ITEM: New York City's ban on dancing in bars (that's right, no dancing in bars, only in "cabarets" with "cabaret licenses") was upheld by an intermediate appeals court. So much for New York's legacy as the cultural capital of the nation. At issue is whether recreational dancing is constitutionally protected expression (i.e., free speech). Too bad the better analytic framework -- whether the government has any proper authority to limit what harmless activities private people do on private property in the first place -- seems to be lost in the process of debating the First Amendment.

Some people accuse me of having a (very slight) bias against the Roman Catholic Church. I can't imagine why.

So as a gesture of good will, I am (sorta kinda) coming to the Church's defense:

Professor Michael Gerhardt ponders two possible problems with how presidents may have assembled the current Catholic majority on the Supreme Court. The first is that they may have unwittingly demonstrated their agreement with social scientists who believe that neither the rule of law nor Supreme Court precedent constrain justices, and the second is that they may have violated constitutional prohibitions on religious tests for federal office. After showing how both these problems may have occurred, Gerhardt demonstrates how they were avoidable at the time the current majority was assembled and in future judicial selection.

Having a majority of Catholics on the Supreme Court may be unconstitutional? When did that go up for grabs?

It's quite simple really: Limiting the Court to four Catholics -- or any other faith -- is itself what would constitute a "religious test" in violation of Article VI, not the other way around.

Or, as I explained here:

For the first 127 years of the Court's existence we had nothing but Christians on the Court. Why was no one crying "religious test" during that whole period?

We still have a perfect track record of having nothing but monotheists on the Court.

Suddenly becoming concerned about "Catholics" is hopelessly underinclusive reasoning.

And, last time I checked, the President's appointment power is plenary -- as is the confirmation power of the Senate.

When Congress passes a law restricting the President's appointment power, then I might raise an eyebrow.

Meanwhile, what's far more interesting -- at least as a question of history -- was the debate over Cardozo's appointment and the (sotto voce) concern over having two Jews on the Court, which was then followed by the "Jewish seat" debate in subsequent decades.

Which is more disturbing: very few people worrying about there being five Catholics on the Court or lots of people having conniptions over there being any Jews on the Court at all?

Incidentally, why would this analysis only apply to the Supreme Court? Should no Circuit Court -- or Circuit Court panel -- be allowed to have a majority of Catholics, or Baptists or Jews or Mormons or...

Basing your vote for president on your concern over judicial appointments is neither irrational nor improper. Advocating interference in the judicial nomination process itself because of that concern is, however, both irrational and improper.

Take care of the politicians, and the judges will take care of themselves.

(Via Dorf on Law.)

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NOT AT ALL RELATED: The Catholic Church has bigger things to worry about these days than religious tests for judicial appointments.

Some people accuse me of having a (very slight) bias against Utah. I can't imagine why.

So as a gesture of good will, I am (sorta kinda) coming to Utah's defense:

Tucked inside a bill that greatly increases the punishment for sex crimes is a political bombshell.

Sen. Scott McCoy, D-Salt Lake City, amended the House-passed bill to make sodomy among consenting adults legal.

And while he faced no opposition Wednesday from a five-member Senate committee, the provision is sure to raise eyebrows when it hits the Senate floor.

McCoy, the state's only openly gay senator, drafted his own bill that would have removed Utah's anti-sodomy law, but conservative Republicans led by West Jordan GOP Sen. Chris Buttars have blocked it from a public hearing.

The U.S. Supreme Court ruled in a 2003 Texas case that every state's anti-sodomy law is unconstitutional. But even if Utah's law blocking anal or oral sex is not enforceable, some lawmakers don't want to get rid of it for political reasons.

Now before you rush to point to Lawrence v. Texas, 539 U.S. 558 (2003), and lament how obnoxious it is for the Utah legislature to tiptoe (pussyfoot?) around the straightforward question of repealing a criminal sodomy statute that is null and void forever more, consider the following.

Another state's highest court declared, 23 years before Lawrence, that the state's criminal sodomy statute was unconstitutional. The state legislature, however, disgracefully waited 20 years before finally repealing the statute.

Care to guess which state that was?

So yes, Utah politicians are being mockworthy by not having the "tabernacles" to do the right thing and repeal the unconstitutional law. But they're hardly unique about it.

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SLIGHTY RELATED: New Jersey is, finally, taking steps toward removing the word "idiot" from its constitution. Keep in mind that "idiot," "imbecile" and "moron" were once quite specific intelligence designations based on IQ, not just interchangeable pejoratives.

Professional bigot Maggie Gallagher, as quoted in OpinionJournal, September 25, 2006:

I believe Mitt Romney may be the only hope social conservatives have in 2008.

Professional bigot Maggie Gallagher, as quoted in OpinionJournal, February 23, 2007:

When I ask myself, who of all the candidates in both parties do I most trust to keep me and my children safe? The answer is instantaneous, deeper than the level any particular policy debate can go: Rudy Giuliani.

Frailty, thy name is Gallagher.

I must admit that I'm curious as to why professional social conservatives like Gallagher and James "No McCain Never" Dobson are not simply jumping on the Sam Brownback bandwagon, or at least dropping his name here and there (yes, yes, Mike Huckabee too).

Could it be that, rather than imagining themselves as Republican kingmakers, the radical theocrats are more interested in simply hedging their bets until a clear winner arises, at which point they can latch on and pretend that they were "always for" whoever prevails in the primaries? Who's courting whom in the GOP these days?

In any case, my Romney thesis is unchanged: radical Evangelicals and other theocrats will pretend to embrace Romney and his Mormonism in public — just as they pretend to embrace Jews and other "not-quite-right" types. But when push comes to shove and the secret ballots are cast, he will quickly be brushed aside.

POST SCRIPT: And don't the editors of OpinionJournal read each other's work?

As you have probably noticed by now, I have quietly introduced a new feature on this blog's homepage — the randomly changing picture-link in the right sidebar. I don't have a name for it yet; I might go with "Sidebar Sidetrack."

It's inspired by two completely orthogonal predecessors:

1. The old TV show "Murphy Brown," my favorite sitcom during that era. Murphy had a dart board on the back of her office door and in each episode there would be a different target attached to it. Items like an NRA bumper sticker or a picture of William Rehnquist, that sort of thing. But it was different every episode.

2. Utah David (a/k/a "Protean"), who is constantly replacing his right sidebar pic. Always changing, always intriguing.

This creates, however, a bit of a quandary. Between the Sidebar Sidetrack, YouTube's default settings and my recent change to a three-column layout, space is a bit tight, especially if the Sidebar Sidetrack has text. I can only shrink it so much.

So after careful consideration, I am no longer constraining myself to preserving the blog's layout to low-resolution compatibility. The default layout will be 1024x768. Anyone with smaller resolution than that will usually find the right sidebar pushed down beneath the posts. Sorry for any displeasure over this.

---

I have created a Google Talk account, user name (of course) "kipesquire." I realize that GT is a start-up IM system and that not many people are using it yet, but perhaps Google will eventually incorporate it into Blogspot templates. (I can't use Yahoo messenger with the blog because it is reserved for, let's just say, other online activities.)

If anyone on GT ever wishes to chat, don't hesitate, I always love to hear from my readers.

When it's Rhode Island:

The Rhode Island attorney general said Wednesday that same-sex marriages performed in Massachusetts, the sole state where they are legal, should be recognized in Rhode Island.
...
Attorney General Patrick C. Lynch said the state prohibited discrimination based on sexual orientation and did not explicitly prohibit same-sex marriage.
...
Mr. Lynch said his interpretation permitted recognition of the marriages, although he acknowledged that it was just an opinion and did not have the force of law.

The letter (PDF - 6 pages) is highly persuasive legally but still only an advisory opinion (but advice that government bodies are very likely to heed). Rhode Island has been unable to produce a legislative answer on gay marriage one way or the other. Lynch's pronouncement may change that and catalyze either a partnership bill or a DOMA. Stay tuned.

In any case, this is a substantial development that should be welcomed. And, as I explain in this old post, similar developments are inevitable.

---

Speaking of "islands," we now have Massachusetts, Vermont, Connecticut, Rhode Island and New Jersey (don't forget Canada) all granting same-sex couples some form of legal recognition — with a great big island of bupkes smack dab in the middle of it all. For century after century, New York City was the intellectual and cultural capital of the nation. New York State, meanwhile, had a long and robust history of taking the lead in developing new bodies of jurisprudence: much of nationwide financial, corporate, insurance, marital, maritime, real estate and other bodies of law got their start in New York State (where, often, the first lawsuits on the subjects arose). The most influential state judge in American history, one who made it to the Supreme Court, was a New Yorker.

That legacy came to a screeching halt in Hernandez v. Robles. Now New York stands essentially alone among the Northeast states in looking backward rather than forward.

"Excelsior," R.I.P.

Of course, he didn't phrase it in quite those terms, but that would be the implication:

Republican Mitt Romney, seeking to make U.S. policy toward Iran his issue, on Thursday urged several elected New York officials to divest any state pension funds from Iran.

"With your new responsibilities overseeing one of America's largest pension funds, you have a unique opportunity to lead an effort to isolate Iran as it pursues nuclear armament," the 2008 presidential contender wrote to New York Gov. Eliot Spitzer, a Democrat.

Just one problem: If New York's government employee pension fund managers were to do what Romney is suggesting, then they would be breaking the law:

A fiduciary is generally held to a high standard of ethics in order to ensure clients' money is not mismanaged. Breach of duty is not determined by the performance of investments. Instead, actions of the fiduciary are scrutinized to ensure responsible investing practices were followed. When determining if a broker bears legal responsibility for a client's loss, it must be determined if prudent advice was given, if the broker, in fact, was a fiduciary, and if actions taken were in the best interest of the client.

When you are responsible for managing other people's money (as opposed to someone like Romney, who has mostly been responsible only for taxing and spending it), you are required, without exception, to manage for the client and only the client. You don't get to "play politics" with the client's money or superimpose any personal policy objectives other than those expressly indicated by the client. Even the slightest deviation from this prime directive of finance is a tort, a crime and a violation of professional ethics.

Which of course means nothing, absolutely nothing, to Romney. Remind me again how he's a "values candidate" (not to mention a "former businessman")? Pathetic.

There is of course nothing wrong with a private person foregoing superior investment returns in exchange for her own ethical self-satisfaction. There is also nothing wrong with, e.g., a private university divesting South African investments from its own endowment fund. Private parties controlling their own private property. Fine.

But how would you react if your stockbroker sold your ExxonMobil stock without your consent, "to make a statement"? This is precisely what Romney is advocating.

Pension fund money belongs to employees and retirees. It does not belong to the government. The managers of these funds have a fiduciary duty to those employees and retirees, not to the politicians who appoint them. The only permissible behavior of these fund managers is to achieve the objective of the fund (i.e., to meet pension obligations via politically neutral strategies). Again, anything else is a tort, a crime and violation of professional ethics. Unless you're a pandering politician positioning for the presidency. In which case it's just a sound bite.

All politicians are, by definition, moral defectives.

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Now is a good time to again point out a related phenomenon: the idiocy, and duplicity, of calls for "shareholders rights," especially in the context of executive compensation. One example here.

Shareholders have always had, and always will have, the ultimate right: the right to sell their shares, the right "to have no part in this." With very few exceptions, no other "shareholder right" is necessary.

So why does this issue persist on the policy agenda? Re-read the post: which shareholders do you think are making all the noise about executive compensation and "shareholder rights"? These very same public pension fund managers and the politicians who pull their strings.

Greater shareholder power over corporations means greater government power over corporations. It is back-door coercive government regulation. And it's wrong.

"Would you like a stimulator?"

To which my response was, of course, "Is this a trick question?"


Well, at least some part of my body will be stimulated tonight.

P.S. No cavities! (Which, if I were in a punnier mood, I would somehow relate back to The Stimulator. But I'm feeling a little too G-rated right now.)

..."and they give you theft, which is just as good as money!"

The idea of CoinStar was a good one. We put in our spare change and CoinStar gives us cash. But then we realized that CoinStar charges you a 9% (!!!) service charge for something that you can do at a bank for free. So you can imagine our relief when we came across [a] CoinStar hack.

We don't know if this is "legal" or not so don't shoot the messenger, but it involves unplugging the CoinStar's phone line from the unit multiple times, but seems relatively simple. This is supposed to confuse the machine into submission. Eventually making it spit out your cash slip for free, without the deduction.

"If this is 'legal' [why the quotes?] or not..."? When did that go up for grabs? I mean, come on!

Maybe I'm just getting too "ivory tower" in my old age, but I would hope that one need not go to law school to know that tampering with someone else's private property, in a deliberate effort to obtain something to which you are not entitled -- is a no-no!

How is this an option to anyone with even a semi-functioning: (1) brain, and (2) moral compass? What gets in the way of one's rational faculty?

--The fact that it's a machine and not a human being (i.e., a high-tech instead of Faganesque pickpocketing)?

--The fact that it's a 9% -- complete with three (!!!) exclamation points -- service charge?

--The fact that a "greedy" capitalist enterprise is involved?

--Some other phenomenon that nullifies ethics, common sense, modern tort and criminal law, and the Eighth Commandment?

Thoughts?

(Via Boing Boing.)

For those unfamiliar with the Yogi Berra reference:



For Discussion: Compare and contrast to the infamous Amazon "two-for-none" debate in this post.

"Abuse of celebrity status" --

The family of a woman who died two years ago is suing Michael Jackson and a hospital, claiming the gravely ill patient was moved to make room for the pop star when he arrived with flu symptoms.

The complaint, claiming abuse of celebrity status, was filed against Jackson and Marian Medical Center in Santa Maria on Thursday, the second anniversary of the death of Manuela Gomez Ruiz, 73. It seeks unspecified damages.

The family had previously complained publicly that Ruiz, who had suffered a heart attack and was on life support, was suddenly moved to make way for Jackson, whose Feb. 15, 2005, admission caused cancellation of a court session in his child molestation trial. Ruiz suffered a second heart attack and died later that day.

Second anniversary of her death? Suddenly I think I know what the statute of limitations is in California.

Perhaps this is a quirk of the law in California (which, to be sure, has a disproportionate number of celebrities) -- too many pushy celebrities results in an "anti-pushiness" tort law? I wouldn't put it past California's legislature or courts.

Still, the thought of being sued for "Don't you know who I am?" just doesn't sit right with me. The liability, to the extent there is any, clearly rests with the hospital. If A suffers injury because B lets herself be pushed around by C, then B is the negligent party and B should be held responsible, not C.

On the other hand, celebrities not only tend to be pushy but also tend to be rich. Is this a back door to deep-pockets liability? Should that be the policy goal of a state's tort law?

Google is failing me, so I have to rely on my readers: Any California lawyers have more insight on "abuse of celebrity status" as an actionable tort? For everyone else: Do you think that, should the hospital be proven negligent, Jackson should also be held liable?

(Via Kevin M.D..)

For Discussion: Whoever provides the best twist on a Michael Jackson lyric to reflect this fact pattern wins a free beer.

"He told me, that sometimes, though very rarely, a Child happened to be born in a Family with a red circular Spot in the Forehead, directly over the left Eyebrow, which was an infallible Mark that it should never dye."
--Gulliver's Travels, Part III, Chapter X

"Remember man that thou art dust and unto dust thou shalt return."
--Roman Catholic "Ash Wednesday blessing"

Today is Ash Wednesday, when the Catholic Church gets some free advertising in the form of people walking around with schmutzy crosses on their foreheads. Because God loves them. Or something.

When I see this befuddling annual ritual, I often wonder: What if Catholics were born with ash-colored crosses on their forehead? Or if, as a rite of passage, a Catholic were required to get a permanent cross-shaped tattoo on the forehead? Catholicism would be a very different religion, as would perceptions about Catholics.

And then I wonder about something much more important: What if children were born not only genotypically gay, but also phenotypically gay (i.e., with some unmistakable mark, such as the circular spot of the immortal "Struldbruggs" in Gulliver's Travels, or with a permanent and involuntary ash-colored cross on the forehead)?

In other words, what if there could be no "closet"?

One could imagine either of two cultural responses:

1. Kill the infants upon birth.

2. Or not.

Keep in mind that I don't mean "What if this were to start happening tomorrow?" but rather "What if it had always been so?" I can't conceive a theory of anthropology or sociology where Option #1 would be the equilibrium outcome. If it were clear, from birth, that being gay is not a choice, if it were clear that a noticeable — even if small — minority of the population were gay, and if it were impossible to conceal one's true identity, then how, exactly, could bigotry arise in the first place? Especially given that gays are no threat to society in any sense other than "moral" (cf., leprosy in the ancient world).

Racism is not a proper analogy: "That these Productions were not peculiar to any Family, but a meer Effect of Chance; and the Children of the Struldbruggs themselves, were equally Mortal with the rest of the People." If black babies just happened, randomly, and if the children of blacks were no more likely to be black than the children of whites, then racism — if it could exist at all — would also be a very different phenomenon from what it is today.

I am never critical of any gay who is in the closet, so long as he harms no one (e.g., a wife) in the process (cf., Ted Haggard). But what a thought experiment it is to contemplate a world where the closet were impossible — and therefore unnecessary.

For Discussion: What if it did "start happening tomorrow"? How would society respond?

UPDATE: WindyPundit weighs in.

Historian John Steele Gordon responds to Hillary Clinton's call to remove (purge?) the Confederate flag from the South Carolina capitol grounds:

What everyone — except serious historians of the Confederacy and vexillologists — thinks of as "the Confederate flag" in fact is no such thing. It is the battle flag. And, as far as I'm concerned, it is ruined as a symbol by its post–Civil War associations, just as no one can look at a swastika — a design of great antiquity — without thinking of the Nazis.

So why not fly the national flag of the Confederacy instead?



Top left: The Confederate battle flag.
Top right: The first flag of the Confederacy.
Bottom left: The second flag of the Confederacy.
Bottom right: The third flag of the Confederacy.
The stars and bars [top right] would certainly serve as a memorial to those who fought under it and its successors, but it is free of the stain of twentieth-century racism. Most people, I fancy, seeing it flying from a pole on the capitol grounds in Columbia would have no idea what it was and go on about their business. But those who cared most certainly would recognize it as an honorable emblem of their ancestors' "blood-bought immortality."

Two hasty stitches:

--Why should policies cater to people who "have no idea" about the policy itself? Since when do historians embrace the politics of "Ha ha, I know a secret!" and favor accommodating the ignorant? Since when is the goal of a debate to placate those who have no understanding of what you're debating in the first place?

--Either way, I think Gordon has it exactly backwards. If we are going to engage in the Civil War version of "support the troops but not the war" politics, then let's at least be historically accurate about it — by embracing the Confederate battle flag at the expense of the "Stars and Bars."

If the typical Confederate foot soldier owned no slaves and cared little about abstract notions of secession, federalism and "states powers," but simply felt a (patriotic) duty to defend his homeland, then why sully that "forgotten honor" by embracing the flag, not of the Confederate soldier, but of the Confederate politician — the very same politician who ruined, or cost him, his life — for interests that were not even his to begin with?

"So as not to confuse the uneducated" is not a legitimate answer. Either educate them or unconditionally surrender to them and have no antebellum emblems whatsoever (which seems to be the prevailing view anyway). In which case the issue really will devolve down to "Ha ha, I know a secret."

Meanwhile, here is a reply to Gordon from a fellow American Heritage blogger. And more thoughts at PoliBlog.

POST SCRIPT: "vexillologists"?

I can't do justice to the abominable 2-1 decision by the Circuit Court of Appeals for the District of Columbia holding that the suspension of habeas corpus in the context of non-citizen "enemy combatants" at Guantanamo Bay, Cuba is constitutional.

For what it's worth, here are my hasty stitches:

--To claim that Guantanamo, with all its military accoutrements — its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. — is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind. (UPDATE: Excellent discussion of this topic at Balkinization.)

--The judges commit a fundamental, and fatal, misreading of precedent:

The Supreme Court has stated the Suspension Clause protects the writ "as it existed in 1789," when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. [INS v. St. Cyr, 533 U.S. 289 (2001)]

Marty Lederman informs us that this claim is inarguably incorrect:

The Court held in St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." ... The Court has not resolved this question, and thus it was a mistake for the D.C. Circuit not to reach it, even if the 1789 writ would not have extended to these alien detainees.

Read Lederman's entire post.

--If it's permissible to base our recognition of habeas corpus — an Article I provision — on what that right purportedly meant in 1789, then why would it not also be permissible to base our recognition of another Article I provision — the War Power — on what it meant in 1789? There was no notion of a "War on Terror" in 1789. There was no notion of "enemy combatant" in 1789. If we're going to freeze, forever more, "habeas corpus" at its 1789 meaning, then must we not also freeze, forever more, "war" at its 1789 meaning? You either believe in "original meaning" construction or you don't. Unless you're a hypocrite.

--Finally, where is that decrepit moron Arlen Specter now? Where is his outrage? Where is his bill re-establishing habeas in all government detentions? The dangerous, destructive fool...

--The detainees have announced plans to apply for expedited review by the Supreme Court. Expedited or not, the Court is virtually assured to hear the appeal, which would be one of the most critical separation of powers cases in American history. Stay tuned.

The case is Boumediene v. Bush, 05-5062 (D.C. Cir., Feb. 20, 2007) (PDF - 59 pages).

Some activists in New York are pushing to give non-citizens the right to vote:

More than 50,000 adult noncitizen taxpayers in those two districts are disenfranchised by citizenship voting laws," said Cheryl Wertz, of New Immigrant Community Empowerment, referring to today's special election for council seats in Brooklyn and Staten Island.

Not exactly: To be "disenfranchised" suggests that you were "enfranchised" to begin with. There has not been widespread non-citizen voting in the United States for over 80 years. (The federal Constitution is silent on the issue; most state constitutions expressly forbid it.)

The main argument for enfranchising (not "un-disenfranchising") non-citizens seems to be the taxation argument: "She who pays taxes should be allowed to vote."

Okay fine, let's run with that and see where it takes us.

First, if being a taxpayer is a sufficient condition for suffrage, then why not make it a necessary condition as well: If you don't pay taxes, then you don't get to vote. Fair's fair, right? "Taxpaying" is either the proper criterion or it isn't, right?

Second, why should "taxpayer status" be a discrete variable? If paying taxes "matters," then why not make it matter a lot, by instituting tax-proportional voting? If I pay twice as much in taxes as you, then I get twice as many votes. Fair's fair, right? "Taxpaying" is either the proper criterion or it isn't, right?

Third, why exactly should "taxpaying" in fact be the dominant criterion? Perhaps parents -- and only parents -- should be allowed to vote in school board elections. That would seem to make more sense than the "taxpayer" standard. There was a time when "landholding" was the dominant qualification for voting. Maybe only veterans should get to vote. Maybe not having broken the law should be the standard (oh, wait, never mind).

It's one thing to be foolishly misguided. It's another thing altogether to be disingenuous, as these advocates of non-citizen voting clearly are. We get enough of that from the politician wannabes -- we don't need it from the voter wannabes too.

...we're laughing at you:

You may have heard that the Supreme Court handed down a noteworthy punitive damages decision in which a $79.5 million judgment against Phillip Morris was held to violate the Fifth and Fourteenth Amendments:

In our view, the Constitution's Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.

Sounds good. But here's my question: If it is a violation of due process to consider the harm to "strangers to the litigation," (i.e., the public at large), then how can it be not also be a violation of due process to consider the benefit to "strangers to the litigation" — which was precisely the rationale in Kelo v. New London?