A Stitch in Haste

Here's everything you need to know about the London dual car-bomb attempt:

The War on Terror utterly failed to prevent it.
The plot was foiled, not by warrantless wiretapping, not by Guantanamo, not by Britain's Big Brother panopticon system, not by seizing laptops at border crossings, not by liquids bans on airplanes, not by random suspicionless searches on subways...

...but by an ambulance crew and a tow truck driver just doing their jobs.

Meanwhile, unless we are going to start banning the sale or use of gasoline, propane and nails (not to mention cars), anyone will be able to create similar devices. It is unpreventable.

So the question becomes: Do we step back from the brink and recognize that the price we have paid in terms of our civil liberties (and our common sense) has bought us little or nothing? Or do we blindly sink even deeper into the swamp of anti-terror totalitarianism, convincing ourselves that if we restrict ourselves just a little bit more, ban just one more dangerous thing, watch (or "detain") just more category of people, curtail just one more civil liberty, then the terrorists will all be defeated and it will all have been worth it?

The goal is not and cannot be to prevent every bad act at any cost. The goal must be to determine the optimal balance of safety and liberty. And we are nowhere near that optimal balance today.

Totally overshadowed by the race-based cases yesterday was another minor victory at the Supreme Court, in the case of Leegin Creative Leather Products v. PSKS, No. 06-480 (June 28, 2007). The Court reversed -- although "revised" might be the better term -- the standard of review for antitrust cases involving so-called "retail price maintenance."

In RPM, a manufacturer or wholesaler on one side of a contract requires the retailer on the other side of the contract to charge a minimum price to final consumers. For almost a century, any and all RPM agreements were deemed illegal under the antitrust laws -- see Dr. Miles Medical Co. v. John D. Park and Sons, 220 U.S. 373 (1911).

Now the Court has "overturned" Dr. Miles and held that RPM, while not necessarily permissible in all contexts, is to be subject to the so-called "rule of reason," which just means that antitrust regulators now need to go through the motions of evaluating RPM contracts and deciding -- somehow -- whether such contracts are -- somehow -- "bad."

Hardly reason for libertarians to dance in the streets.

It's quite simple really: Private parties (i.e., manufacturers and retailers) should be free to enter into voluntary contracts amongst themselves regarding how their products are to be sold. Consumers, meanwhile, are free to accept or reject the price offered, just as in any other context. The notion that consumers, through their regulatory henchmen, have a pre-emptive right to block a contract, to which they are not even a part, is preposterous and insolent. How the price on the shelf came to be is not the customer's concern. Stated differently, how I run my business is none of your business. You have no more right to pry into my warehouse than you do my bedroom. The price is the price -- take it or leave it.

How nice it would have been if just a smidgen of economic substantive due process (i.e., the right to freedom of contract) could have wedged its way back into Supreme Court jurisprudence via this case. Sadly, no. The opinion is strictly "antitrust is still perfectly hunky-dory -- just be 'reasonable' about it." As if "reasonable antitrust law" were not an oxymoron.

The right to enter into voluntary contracts (a corollary of the right to be free from coercion) is one of the two most fundamental human rights, along with the right to own property (which, incidentally, is also abrogated by RPM restrictions -- the right to own presumes the right to sell). To suggest that these basic human rights should be subject to any restriction -- even one obnoxiously labeled a "rule of reason" -- is a disgrace in a supposedly free economy.

More thoughts at Truth on the Market.

Diamond has developed a case of interdigital furuncles on one of her paws.




Nothing life-threatening. In fact she can walk, run and jump perfectly well.

She is on Clavamox, but there is still a 50-50 chance that she will need surgery.

On the other hand, the surgery is minor — not even general anesthesia — just lots of lidocaine and a strong sedative that knocks her out for 15 minutes. Then snip-snip, stitch-stitch, cone, home.

She also developed a yeast infection in one ear. Apparently it is not at all uncommon for the two problems to occur simultaneously, and suggests allergies. Though I can't imagine to what after three years with me.

Stay tuned.

(Cross-posted at Modulator's Friday Ark.)

Three years, 3338 posts (including this one). A little over 400,000 hits. An indeterminate number of comments. One published piece.

Thanks.

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I want to take this opportunity to announce some changes that I am planning for this blog. It's all tentative and not fully thought out, but I think it's where I want to go.

1. I intend to spend less time blogging and more time YouTubing. I hope to post at least one substantive commentary video per week. It's a lot of work for very little exposure (for now). But I strongly suspect that it's the future for my kind of pop punditry.

2. Meanwhile, I intend to switch, at least a bit, from fewer more comprehensive posts to more numerous but shorter "bullet" posts. You know the type. Such snipe-blogging does not come naturally to me — sorta kinda like Roger Clemens pitching softball — but it's definitely the preferred format. Cater to your audience, right?

3. After a great deal of soul-searching over the past several weeks — in response to two separate, emotionally stressful incidents involving fellow New York gay bloggers — I have decided to end any and all efforts to use this blog as a social networking surrogate. It has been an unmitigated failure.

There will no futher "Inside the Vault" posts, and no photos or videos. That will all be at my YouTube page from now on.

With a select handful of very high-quality exceptions, I have deblogrolled all the gay personal blogs from my site and from my aggregator. I have better things to do than read about the awesome happy hour that you all had two blocks from my work — and that I wasn't invited to. Gay political blogs remain.

Tne only two things that people seem to find interesting about me are my ideas and my dog, so those will be the only things that appear here anymore. (The one exception will be Sunday Cute YouTuber. I enjoy it, so it stays.)

"The Republicans are the party of millionaires, but the Democrats are the party of billionaires."
--Source unknown.

No student of Ayn Rand should ever say "I just feel that it's wrong." But when I read that Warren Buffett was complaining that his secretary pays a higher marginal tax rate than he does, I just "felt" that it was wrong.

I'm not a tax lawyer or accountant, but I know that federal taxes are obscenely progressive. And I know that the uppermost marginal tax rates under both the federal income tax and the alternative minimum tax are far higher than the 17.7% that Buffett claims he pays.

But I didn't have the resources to dig deeper and find whatever misrepresentation Buffett was making — the one that I just "felt" had to be there — so I let it pass.

Fortunately Greg Mankiw did not:

You might wonder how Mr Buffett managed such a low tax rate. Most likely, it arose because corporate dividends and capital gains are taxed at only 15 percent. But the corporate income that funded those returns was already taxed at the corporate level, where the tax rate is 35 percent. Mr Buffett seems to be ignoring the first round of taxation. Is it possible that the world's most successful [corporate investor] has failed to pierce the corporate veil?

I should have thought have of that. Shame on me.

More:

I can think of at least four possible ways investors like Mr. Buffet can keep their taxable income, as opposed to their true income, low:

1. They hold stocks that pay minimal dividends.
2. They avoid realizing capital gains.
3. They hold some of their portfolios in tax-free municipal bonds.
4. They give appreciated assets to charity, getting a deduction for the current market value without ever having to realize and pay tax on the capital gain.

I figured #1 and #2 had to play some role. And I personally am a major practitioner of #3, though Buffett probably is not. Finally, Mankiw may not be aware that the Internal Revenue Code limits charitable deductibility to 50% of income, so that's almost certainly not the reason in Mr. Buffett's example.

In any case, if Mr. Buffett want to pay more taxes, then he's certainly welcome to do so. I seem also to recall Bill Clinton once complaining that his taxes were too low. Fine — so cut a check, out of the goodness of your heart and the deepness of your wallet, to the Treasury — and leave the rest of us out of it.

Note also that Buffett did not insist that his secretary's taxes were too high, only that his taxes were too low. Again, it is far easier for a billionaire not to worry about taxes than it is for a millionaire — or a secretary. (Compare and contrast: Bill Gates' father's campaign against repealing the death tax — which hits millionaires far worse than billionaires — or their fathers.)

Finally, I wonder whether Buffett's secretary, like most Americans, actually pays more FICA tax than income tax. The first, most urgent priority of anyone who claims to champion the middle class, and especially the working poor, should be Social Security reform. Not just twisting the dials, but bona fide reform — including voluntary partial privatization. Don't expect Buffett to concur.

More thoughts from Cato@Liberty.

Earlier I blogged --

If race-based preferences are unconstitutional in the context of a school district where every student is guaranteed a seat somewhere in the district, just not their first choice (i.e., a student may be denied, based in part on race, admission to "a school," but not to "the schools"), then how can such preferences be constitutional if they, based in part on race, deny access altogether (i.e., when "a school" and "the schools" are the same thing)? How can the lesser denial be unconstitutional but the greater denial not be? How can Grutter v. Bollinger, 539 US 306 (2003) which said as much in the context of raced-based preferences in law school admissions, possibly still be good law?

Apparently this paradox is also behind the schism between the four-Justice plurality and Justice Kennedy's concurrence --

Roberts, Scalia, Thomas, Alito (and me): "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" (i.e., "Never, no way, no how...").

Kennedy: "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race" (i.e., "Sometimes, just not here...").

More thoughts on this observation at SCOTUSblog, Dorf on Law, Balkinization.

I hope Kennedy is enjoying his incessant game of "I will agree with the plurality just enough for my concurrence to be controlling." See my previous post.

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An (adapted) comment that I left at another blog:

Kennedy's thesis would be stronger if one noted that lower-income inner city racial enclaves were the direct result of past government action (e.g., the Housing Act of 1949) and not from strictly private discrimination.

Without that, there is no basis to dismiss as "offensive and blinkered" the patently obvious conclusion that a school -- in a black neighborhood full of black students from that black neighborhood -- is, without more, surely not "racist."

This ties into my previous point that there is certainly a "compelling interest" in fostering local schooling that at least partially offsets the (supposed) "compelling interest" of achieving racial diversity across a school district.

Note also that one of the school districts -- Seattle -- had never been deemed "segregated" by the federal government. So even this sort of tether to a segregated past would be inapplicable. (The other school district -- Louisville, Kentucky -- has been removed from the federal government's list of schools in need of racial remediation.)

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Note that race-based admission jurisprudence, from Bakke to Grutter, is on my list of the worst Supreme Court cases. Kennedy's concurrence can be appended to that entry.

This one might only be for the lawyers.

Isn't it interesting that Chief Justice Roberts was able to so casually dismiss the standing challenge in the race-based cases, yet hung his entire hat on the lack of standing in Hein v. FFRF (the faith-based initiatives case)?

Race-based admissions:

The group's members have children in the district's elementary, middle, and high schools, and the complaint sought declaratory and injunctive relief on behalf of [group] members whose elementary and middle school children may be "denied admission to the high schools of their choice when they apply for those schools in the future." The fact that it is possible that children of group members will not be denied admission to a school based on their race -- because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage -- does not eliminate the injury claimed.

Let's rewrite that passage:

The group's members pay federal taxes that underwrite the federal government's legislative, judicial and executive branches, and the complaint sought declaratory and injunctive relief on behalf of group members whose taxes may be used in violation of the Establishment Clause. The fact that it is possible that group members will not be denied their First Amendment right of freedom from religion -- because their taxes are being unconstitutionally allocated by one branch rather than another -- does not eliminate the injury claimed.

Yet that was exactly the reasoning rejected in Hein. Go figure.

I suppose Roberts is channeling Emerson: Apparently to him a foolish consistency really is the hobgoblin of little minds.

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As for the cases themselves, I don't know when or even if I will slog through all 185 pages. My main question, which I will seek to answer later, is as follows:

If race-based preferences are unconstitutional in the context of a school district where every student is guaranteed a seat somewhere in the district, just not their first choice (i.e., a student may be denied, based in part on race, admission to "a school," but not to "the schools"), then how can such preferences be constitutional if they, based in part on race, deny access altogether (i.e., when "a school" and "the schools" are the same thing)? How can the lesser denial be unconstitutional but the greater denial not be? How can Grutter v. Bollinger, 539 US 306 (2003) which said as much in the context of raced-based preferences in law school admissions, possibly still be good law?

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Meanwhile, my basic thesis on academia is unchanged:

I accept the premise that universal elementary and secondary education, properly crafted, is a legitimate public good. The positive externalities are so significant as to make taxation, properly crafted, to underwrite it inoffensive from a libertarian perspective.

However, that does not automatically mean that basic education should be publicly provided, but only that it should be publicly financed. Stated differently: Vouchers, vouchers, vouchers!

Post-secondary education, however, generates far fewer, if any, positive externalities. Colleges and universities should, therefore, be neither publicly provided nor publicly financed. The notion, meanwhile, of taxpayers subsidizing graduate and professional programs -- such as law schools and business schools -- is facially absurd. If you want to go to law school, then do so on your own dime.

--Does wearing a San Diego Padres cap make you gay? (Via Howling Point.)

--Will the "natural-born citizen" requirement of Article II, Section 4, Clause 5 (and the Twelfth Amendment) be the next chunk of plain text in the Constitution to be declared a nullity?

--Too fat to adopt?

--Isn't it supposed to be the elderly person who complains that the teen-aged neighbor is being too noisy, and not the other way around? (BONUS QUESTION: Is putting a 76-year old in the same hospital room as a 17-year old one of the purported "benefits" of socialized medicine? (Via engadget by way of Kevin, M.D.)

--Do you believe in the message of unbridled majoritarianism?

On the heels of the latest victory of the First Amendment over the nanny-state censor wannabes at the FCC comes word of the next skirmish:

Sen. Jay Rockefeller, D-W.Va., said he will push legislation in the coming weeks to limit violent content in the media.

"I fear that graphic violent programming has become so pervasive and has been shown to be so harmful, we are left with no choice but to have the government step in," Rockefeller said at a meeting of the Senate Commerce, Science and Transportation Committee.
...
The hearing included a brief video montage of clips of graphic scenes of violence and rape played for the packed committee room and compiled by the Parents Television Council.

First things first: The Parents Television Council, for the uninitiated, is a puny gaggle of professional, obsessive-compulsive, radical-social-conservative malcontents who cannot get it into their central planner brains that:

1. The "right" (a duty actually) to babysit your own children does not translate into a right to babysit me.

2. The means to babysit your own children without babysitting me are already at your disposal. The fact that you are either too lazy or too stupid to figure out how to use the V-chip is not a basis for you to demand censorship.

3. One person complaining 240,000 times is not equivalent to 240,000 people complaining once.

First Amendment precedent is unambiguous on this subject: The government cannot force the media to censor adult content merely because there is a hypothetical possibility that children might watch it. Moreover, the "regulating obscenity" standard of Miller v. California has never, not once, been extended to anything other than hard-core, XXX-smut pornography. All attempts to do so (e.g., "violent" video games) have failed. And rightly so.

Equally unambiguous is that any attempt by Congress, the FCC or the states to impose wishy-washy standards of "indecent," "vulgar" or "violent" in content regulation would be struck down by the courts as unconstitutionally vague. And rightly so.

Indeed, the censor wannabes ought to consider giving it a rest, because the one peg that they have hung their censor hats on for decades — the supposed "scarcity" of broadcast media — is now so hopelessly obsolete that the courts, if pushed, might revisit that premise altogether, and with it the constitutionality of any and all FCC regulation of the airwaves.

Meanwhile, Rockefeller is facing opposition, at the committee level, by (ironically) none other than Ted "Series of Tubes" Stevens. So expect Rockefeller's indignant rantings to go nowhere — for now.

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Meanwhile, another activist legislator, Dianne Feinstein (among others), has "wink-wink, nudge-nudged" that she might "look at" reviving the Fairness Doctrine. Her reason? Conservative talk radio actually has — gasp! — an audience. Yes, that fact scares me too — but not as much as the Fairness Doctrine does.

When accidents strike, people often lose sight of just how safe the world is. We don't read news stories about all the amusement park patrons whose feet aren't chopped off by snapped cables, or the tens of millions of cruise passengers who don't jump fall overboard.

But when there is a tragedy, people — especially politicians, bureaucrats and other nanny-staters — often lose all perspective and rush to conclude that "something must be done."

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ITEM: Will no one save our children from the great Heely menace?

It's easy to see why Heelys, a brand of sneakers with wheels in the heels, are so appealing to kids. They're fun, spontaneous and most adults can't stand them.
...
And although helmets and other protective gear are recommended, the dual nature of the shoes allows for intermittent gliding. That makes it unlikely that children will wear helmets while walking in Heelys or put the gear on just before making a transition to a roll.

As a result, they've become the first gym shoe banned by school districts, amusement parks, grocery stores, libraries, shopping centers and even Boy Scout troops. Last year the World Against Toys Causing Harm (WATCH) put Heelys on its list of 10 worst toys of the year.

MY TAKE: Private property owners, such as malls, and school districts of course have the right to ban Heelys on their property. Point conceded. But one wonders how long it will be before activist legislators start calling for outright bans. Meanwhile, there are about 1,600 reported injuries per year (probably as small as scraped knees and sprained wrists) — out of 10 million pairs of Heelys sold. The Heely Company points out that, statistically, their product is far safer than bicycles, skateboards and in-line skates. Again, those activities are not permitted everywhere at all times either, but they're also not banned because a micro-fraction of their underage users get hurt. Stay tuned.

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ITEM: A different kind of wheel-induced tragedy —

Each week, at least two children are killed and another 50 are hurt in backover accidents. Over three days in April, six children were killed; by the end of the month, 11 more died[.]

Rear cameras and audible warning sensors, technology that could reduce the number of fatalities, are not considered safety equipment by automakers and are offered only as optional parking aids in most vehicles. It could be years before they become as ubiquitous as seat belts.
...
But when [parents in a backover accident] purchased their Infiniti QX4, they were coaxed into getting a sunroof. No mention was made of rear cameras that could help them see better as they back up, [one] says.

MY TAKE: Obviously a heart-wrenching category of accident. But again, how many millions — billions? — of non-incidents are there in America's driveways each year? Does it really make sense to talk about the need for rear cameras on all vehicles sold in the U.S. (at what cost?), or that responsible parents "of course" have them installed?

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ITEM: Apparently sand holes have killed more beach-goers (16) than have sharks (12). Which of course has resulted in at least one beach banning children from digging in the sand. Again, how many millions of people are at our beaches on any given summer weekend? Sixteen deaths hardly suggests a crisis in need of a response (which came anyway). (Via Hit & Run.)

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ITEM: The beach is obviously too dangerous, so stay home by the pool instead —

When 3-year-old Anthony Muniz drowned in a neighbor’s backyard pool here earlier this month, the tragedy was particularly piercing: Little Anthony had been named for his mother’s teenage brother, who died in his family’s pool years ago.

Now Anthony's memory is building momentum for a bill to require pool alarms — $200 to $300 devices that sound when someone enters an untended pool — that had been languishing in the Suffolk County [New York] Legislature.

MY TAKE: It's reckless for the New York Times to describe pool accidents as a "plague," considering the ratio: "In a nation of 8.6 million pools and 5.6 million hot tubs ... about 260 children younger than 5 died underwater in 2006[.]" Meanwhile, pool alarms might be a perfectly reasonable purchase for homeowners with kids, but it's wasteful and a bit silly to propose requiring them on all pools in all homes in all neighborhoods.

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The optimal amount of "safety" is almost never "as much as is humanly possible." The correct response to a tragic accident is not always — indeed almost never is — "ban it outright." This concept is too easily lost on politicians and bureaucrats. "Governing by reflex" is not the hallmark of a enlightened society.

A former senior member of the Foreign Intelligence Surveillance Court, the super-secret tribunal that issues super-secret wiretapping warrants as required by the Foreign Intelligence Surveillance Act, has come out publicly against the NSA's warrantless wiretapping program:

[Royce] Lamberth, who was appointed to the federal bench by President Ronald Reagan, expressed his opposition to letting the executive branch decide on its own which people to spy on in national security cases.

The judge said it is proper for executive branch agencies to conduct such surveillance. "But what we have found in the history of our country is that you can't trust the executive," he said.

"The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs," Lamberth said at the Washington Convention Center. "We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive."

This was exactly my point in damning another senior judge who just doesn't get it:

I am not prepared to die at the hands of terrorists in order to defend the Miranda rule ... or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

That was Richard Posner, former hero to some libertarians, who has repeatedly railed against civil liberties with increasing shrillness. Posner's (entirely subjective) policy preference is essentially lexicographic: any curtailment of civil liberties, no matter how extreme, is reasonable if it might have any impact, no matter how minuscule, in combating terrorism. You don't want another 9/11, do you?

Posner's and Lamberth's positions are mutually exclusive, diametric opposites. It is the role of judges, faced with a popular mania (and a manic executive branch), either to stand athwart or to fan the flames. It cannot be both.

Which role for judges do you think is correct?

More:

He said the special court, established by the Foreign Intelligence Surveillance Act, met the challenge of reacting quickly to the Sept. 11 attacks. Lamberth was stuck in a carpool lane near the Pentagon when a hijacked jet slammed into it that day. With his car enveloped in smoke, he called marshals to help him get into the District.

By the time officers reached him, Lambert said, "I had approved five FISA coverages [warrants] on my cellphone." He also approved other warrants at his home at 3 a.m. and on Saturdays.

When the Bush Administration and its apologists insist that the FISA framework cannot handle the exigencies of a post-9/11 War on Terror with sufficient alacrity and flexibility, they lie.

One last point:

"In a time of national emergency like that, changes have to be made in procedures. We changed a number of FISA procedures," Lamberth said.

Another oft-repeated misrepresentation made by the executive branch is that FISA, first enacted in 1978, is a "Carter-era law." What they leave out is that FISA has been amended repeatedly since 1978, including via the PATRIOT Act, and as recently as 2006. FISA is not a "Carter-era law," it is a Bush-era law. So what right does the Bush Administration have to complain about it?

The warrantless wiretapping program was not about fighting the War on Terror. It was about expanding executive power. It was not about defending our way of life. It was about subverting it.

The Washington Post has an article with further discussions with Lamberth. More thoughts from Unqualified Offerings,

A self-standing comment I left on another blog:

It is only when government "does something" that people rent-seek (i.e., throw money at it). The less that politicians do, the less inclined people will be to try to buy them.

So when Michael Moore suggests that government becoming omnipresent in healthcare is the solution to getting money out of healthcare politics, he is being rather the moron.

Discuss, especially in the context of campaign finance reform.

Some hasty stitches on the other major cases handed down today:

Regarding Hein v. Freedom From Religion Foundation, No. 06-157:

The Court has created an exception to an exception to a rule.

Rule: A taxpayer cannot challenge a government expenditure simply because he finds it objectionable.

Exception: Unless the expenditure could be construed as violating the Establishment Clause.

Exception to the exception: Unless the expenditure is made indirectly by the executive branch and not directly by the legislative branch.

The Court's holding is bizarre, indefensible and, bottom line, rather silly. Taxes are taxes, government is government, the Establishment Clause is the Establishment Clause. All else is sophistry — such as this gobbledygook from Justice Alito: "we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures." Creating an exception to an exception is not "declining to extend" — it boggles the mind that the Court could pretend otherwise. (It is also, incidentally, a clear-cut example of "judicial activism" if that term is to have any objective meaning.)

In this I will give Scalia and Thomas credit: they would have scrapped the (pro-rights) exception outright and not just punched a hole in it the way the rest of the majority did. Disgusting, but intellectually honest.

The notion that, once Congress appropriates funds to the Executive Branch, the money somehow ceases to be an appropriation is of course facially absurd. The hook that Justice Alito hangs his "nothing to sue here" hat upon is the word "specific," as in "specific congressional action" or "specific appropriation," which he relies on like a crutch. Of course, the original appropriation to the executive branch is a "specific" action too, but — somehow — that doesn't count. Go figure.

Finally, note that non-taxpayer lawsuits alleging violation of the Establishment Clause by faith-based initiatives can still proceed. The plaintiffs in such suits will simply need to show a more tangible and direct harm to them personally (e.g., that they themselves were discriminated against by a faith-based program). Stay tuned.

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Regarding FEC v. Wisconsin Right to Life, No. 06-969: I have little new to say. The First Amendment cannot possibly mean one thing in May and another in December. Little more needed to be said, the 93 pages of opinions notwithstanding. (The core holding of the fractured Court was not that any timing restriction of political ads would be unconstitutional, but only the timing restriction of one particular kind of political ad — cf., "exception to an exception," supra.)

The next step is to revisit the even more deeply entrenched schizophrenia of the Court's campaign finance jurisprudence and scrap outright the indefensible framework of Buckley v. Valeo, which holds that "money is speech" when it's the candidate's money but not when it's a contributor's money. That simply cannot be right. The First Amendment deserves better than to be twisted and contorted in such an insolent manner.

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Chief Justice Roberts in WRTL:

[T]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it.

Too bad he wasn't thinking so clearly, or being such an "activist judge" regarding the First Amendment, in Morse v. Frederick.

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From the "What planet is he living on?" files:

It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.

--Justice Kennedy in Hein v. FFRF.

"No one can challenge my actions? Then I shall, as a dedicated public servant, be extra-special, super-duper vigilant in ensuring that I do nothing unconstitutional."

Who's being naive, Justice K?

(Via LGM.)

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The "voluntary desegregation cases" will almost certainly be handed down this Thursday, when the Court ends its term. Previous post here.

Here are my hasty stitches on today's ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case).

--Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker's* (or any other case's) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time. The facts that Frederick skipped school that day and that the event was off school grounds only exacerbate the absurdity of Chief Justice Roberts' reasoning. (UPDATE: Thomas dismisses this pesky fact as "inconsequential" in a footnote.)

--The gist of Roberts' opinion seems to be that "fighting drug use" is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message). If that (terrifying) assertion is the case, then it is certainly also the case that, when the issue of ubiquitous random drug testing of students finally reaches the Supreme Court, it will scrap the whole Vernonia**/Earls*** paradigm requiring at least some pretense of a special need (e.g., "athletes on drugs get injured, so we must test athletes") and simply allow unlimited suspicionless drug testing of students in any and all situations. If the drug war, to this Court, trumps the First Amendment, then surely it also trumps the Fourth Amendment. It's a slam dunk.

--Alito's concurrence, meanwhile, posits that no reasonable person could infer a political statement behind the term "Bong Hits 4 Jesus." That's a mighty bold pronouncement — and not one that suggests a philosophy of judicial restraint (as in "the opposite of judicial activism").

--Be sure to read Thomas' concurrence, which argues that students (again, apparently including adult students) have no First Amendment rights, period. Never, no way, no how. Remind me again why libertarians like him?

The case is Morse v. Frederick, No. 06-278 (June 25, 2007) (PDF - 60 pages).

More thoughts at Zero Boss, SCOTUSblog, Quizlaw.

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*Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)
**Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
***Board of Education of Pottawatomie County v. Earls, 536 U.S. 822 (2002)

Try to imagine a regime where, for whatever reason, the government decided to tax 99% of the population to subsidize wedding receptions for the other 1% of the population. A contrived scenario, I admit, but bear with me (perhaps it could be a future "reparations program" for gays who were unconstitutionally denied marriages by states with bigot amendments -- faux "reparations" are a hot policy topic in certain circles these days).

In any case, does anyone doubt that those 1% could have some mighty fine wedding receptions?

Now imagine that some malcontents, saddened and maddened by the fact that not everyone has wonderful wedding receptions, were to demand action. As much as one-sixth of the population, we are told, have no wedding receptions at all. Yet look at the wonderful job that the government's "1% program" does at providing wedding receptions. Why not just expand that?

So, after much huff-and-puff over whether there is a "right to a wedding reception" and whether the government should take over the entire wedding reception industry, the program is expanded to the point where it is not 99% of the population paying for 1%, but rather 1% paying for 99% (or, if you prefer, 100% paying for 100%, but only through a government single-provider bureaucracy). Could the quality of government wedding receptions be maintained as the program expands? Wedding receptions (which, again, can now only be obtained via the government program) would of course deteriorate over time. Eventually the program would go bankrupt.

This is certainly not a difficult scenario to understand in the context of wedding receptions.

So why is it such a difficult scenario to understand in the context of health care?

Over the last decade or two, the [Veterans Health Administration] system has become a worldwide leader in both the adoption and the invention of health-information technology, and it has leveraged its innovations into quantifiable gains in quality of care.
...
Indeed, the VHA's lead in care quality isn't disputed. A New England Journal of Medicine study from 2003 compared the VHA with fee-for-service Medicare on 11 measures of quality. The VHA came out "significantly better" on every single one.

Note that this article is almost two months old and did not inspire this post. Rather, it was this infantile Tapped post a few days ago, in which we are told that leading healthcare socialist Ezra Klein "delivered a first-class ass-whupping to Larry Kudlow" -- by doing little more than citing, ad nauseum and dishonestly, the Veterans Health Administration. To Klein, the VA appears to be the beginning and end of the discussion regarding socialized medicine -- just look at what an amazingly great (single-payer) job the VHA does -- so why not just make the rest of American health care exactly the same?

Which is, of course, utter nonsense. It is nothing more than the wedding reception fallacy.

Naturally, it's easy for the VHA to provide exemplary health care -- it's the "99% supporting 1%" situation. The entire federal tax base is underwriting the health care of a minuscule subset of the population (who, incidentally, tend to be far healthier than average going into the military -- even if they're not so healthy coming out of, say, Iraq or Afghanistan).

But merely "replicating" the VHA would be switching to the "1% supporting 99%" scenario -- and it simply won't work. This is not a difficult concept: 99% successfully supporting 1% does not imply that 1% can successfully support 99%. In fact, you need only two sentences to show why.

If a (properly administered and deployed) military is a legitimate public good (and it is), then surely providing at least some health care for veterans is also a public good, no different than providing them uniforms or bullets. That isn't the point. The VHA is a perfectly proper function of government. No dispute there.

The point is instead that, when central planner wannabes confuse legitimate public goods with their own warm-fuzzy-feeling agendas, then suddenly everybody starts paying for everything for everybody while nobody pays anything for anything. And then the system collapses under its own moral hazard, and these very same central planners claim not to know why.

There is nothing "cold and heartless" about expecting people to pay for their own wedding receptions. Or, to the extent possible, for their own health care -- supplemented when necessary by basic charity and a basic dole. No single payer or provider required, except to sate the egos of philosopher-king hopefuls like Ezra Klein.

Those who insist otherwise should think long and hard before praising each other's ass-whupping skills. There are no greater ass-whuppers than the laws of economics, the moral defectiveness of politicians, and the omnipresent incompetence of bureaucrats.

Time to clean out the aggregator.

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ITEM: In a unanimous decision that surprised absolutely no one (except perhaps the California Supreme Court), the U.S. Supreme Court held that when a police officer stops a vehicle, he "seizes" (i.e., for Fourth Amendment purposes) everyone in the vehicle and not just the driver -- with the corollary ruling that a passenger may also challenge the legality of the stop. The case is Brendlin v. California, No. 06-8120 (June 18, 2007) (PDF - 16 pages); previous post here.

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ITEM: Meanwhile, here is a summary of the decisions still pending before the Court. They are all likely to be handed down this week, as early as Monday. Noteworthy are cases on school desgregation (previous post here), "Bong Hits 4 Jesus" (previous post here), funding of faith-based initiatives (previous post here) and a challenge to a provision of McCain-Feingold (previous post here).

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ITEM: A gay marriage bill has been passed in one chamber of the New York State legislature. Which means little if anything, as the other chamber is single-handedly controlled by the majority leader, who is opposed to gay marriage and can prevent a vote even if it would pass (which is currently would not). Previous post here.

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ITEM: The nanny staters at the New York City Health Department spent $8,500 sending 33,000 invitations to a seminar on the city's authoritarian trans fat ban. Ten people showed up. Previous post here.

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ITEM: Speaking of nanny staters, both Britain and Ireland have banned the sale of a particularly violent video game called "Manhunt 2." Unlike in the U.S., such bans are entirely permissible in the U.K., since it has no First Amendment. (But see here: The game's "AO" rating may essentially block its sale in the U.S. as well.) Nevertheless, the Britain/Ireland bans are essentially meaningless, since consumers -- even minors -- can simply by a copy over the Internet from continental Europe.

Happy Pride Month, Bitches!


That video has received over one million views on YouTube, and over 30,000 comments. William Sledd is the fourth most subscribed-to person on YouTube.

Who knew so many people enjoyed being called "bitches."

Long-time readers know of my enthusiastic endorsement of the Point Foundation, which gives scholarships to outstanding LGBT students who have encountered personal challenges in the face of anti-gay bigotry in various forms.

Now comes word of a quick and easy — and fun — way for everyone to help the Point Foundation:

Yahoo!, one of the most trafficked internet destinations in the world has chosen to exclusively promote Point Foundation on its Pride site during the month of June and July. Yahoo!’s mission is to connect people to their passions, their communities, and the world's knowledge.

Visit the Yahoo! LGBT Pride site at:

http://events.yahoo.com/pride
Upload your photos of Pride (and Pride Festivals) to this photo pool. In addition to celebrating worldwide pride, your photo submissions will help to build a stronger LGBT community.

For every photo uploaded to this pool, Yahoo! Inc. will donate $1 to Point Foundation, up to $25,000.

So far, there are fewer than 700 pictures posted. There are probably a few gays who could single-handedly upload 25,000 pictures. But that shouldn't stop you from uploading yours.

And join me in donating to the Point Foundation.

--How many social conservative Republicans known that Mitt "Null Set" Romney once opposed the Boy Scouts' bigoted exclusionary policy toward gays?

--Special Bonus Guest Question: "Have any of the five Romney brothers, all healthy heterosexuals well under 42, considered volunteering for military service in the Global War on Terror?" (Answer: "Null Set.") (Via Cato@Liberty.)

--Does the town of Sag Harbor, New York ("the Hamptons port-of-call playground for the ultra-wealthy") really need $260,000 of taxpayer money to defend yachts against terrorists?

--Should Illinois taxpayers be expected to cough up $5,800 per day to fly their governor to and from work?

--Is it a proper function of government to decide whether bathroom doors should open inward or outward? (Via Quizlaw.)

--Is coming out of the closet a one-time event or a never-ending process?

Yet another data point reinforcing my thesis that "science" is simply not a public good:

Of the 186 Nobel winners in Medicine since 1901, 99 did their prize-winning research with the support of U.S. research institutions. Of those, only five did their work at NIH and fewer than one-third did their work while affiliated with public institutions.

The other two-thirds were affiliated with private institutions and were primarily supported through private funds. While only a cursory analysis, the evidence seems clear that private investors, whether entrepreneurial or philanthropic, are much better at identifying truly innovative research than government institutions are.

And remember also that government is simply incapable of keeping "public science" even close to apolitical or nonpartisan:

For years, advocates spent millions of dollars trying to convince Congress to support in vitro fertilization research. They claimed that without funding the U.S. would suffer a brain drain and infertile Americans would have to seek treatment abroad. While a divisive debate over the ethical merits of test-tube babies raged, some scientists quietly pursued their research privately. Even after decades of lobbying, the federal government never funded any IVF research, and today the U.S. has the largest IVF industry in the world.

Other "government science is never unbiased" data points include "stem cell research" and, of course, "Reagan and AIDS" (see also this article on homosexuality: "there is very little research money, and almost no glory, to be gained in the hunt for gayness"). And don't forget the related examples of "Medicare and Viagra" or the (hardly "apolitical and nonpartisan") network of taxpayer-subsidized arts funding.

Note also the additional, and important, point made in the commentary: A private dollar spent on "lobbying for science" is not a dollar spent on "science." A taxpayer dollar spent establishing, administering or overseeing a governmental science bureaucracy is likewise not a dollar spent on "science." There's a significant deadweight loss in trying to convince politicians that your scientific agenda is the "correct" scientific agenda. A scientist cannot simultaneously be in a lab and in a committee meeting. Neither can her patron's checkbook.

Just as government cannot "create jobs," but only redistribute them (net of bureaucratic and political overhead), and just as government cannot "create wealth," but only redistribute it (again, net of bureaucratic and political overhead), so too can government not "create research," but only redistribute it to politically favored areas from disfavored ones.

(Via Hit & Run.)

To review: Adult molestation of children is about power, not sex -- just as adult male rape of adult women is about power, not sex. An adult male who molests boys is not "gay" -- indeed almost all man-on-boy child molesters unambiguously self-identify as heterosexual. This should always be the first -- and hopefully last -- response to bigots who twist stories and data to suggest that child molesters are "disproportionately gay." It is the worst kind of hateful lie.

Having said that, I simply do not understand the flow of this New York Times article on a horrific discovery:

School Crossing Guard Is Charged
With 1,000 Counts of Child Molesting
Oh dear...

Ms. Andreas, a crossing guard at Orange Street Elementary School in this northeastern Pennsylvania town, learned this week that a fellow guard had been charged with more than 1,000 counts of child molestation. Even more troubling, she said, she had twice allowed the suspect to care for her sons, though the boys say they were not harmed.

Sigh -- a male molester of boys. Get ready for the rabid Townhall, AFA and FoF screeches.

The suspect, Dale Hutchings, 59, was arrested Tuesday on charges of sexually molesting at least six children under 13 from 1998 to 2007 at his home within sight of the school where he was a crossing guard.

Note that the only gender reference thus far has been to "boys." All other references have been to "children."

In fact, she left her boys ... in his care twice because school was opening late and she had to start her early shift in a local potato chip factory.

Okay, more about the boys -- repeat, boys -- whom Hutchings is (not) accused of molesting.

The charges against Mr. Hutchings have prompted anger and fear in this town of some 11,000 in farming country about two hours north of Philadelphia.

Well, of course, the man is allegedly going around molesting boys, right?

Note that we are now more than halfway through the article.

On June 8 he was reported by an 11-year-old girl, a student at the Orange Street school, who said she would often go to his house, where he touched her genitals. ... Another girl, now 18, said that from ages 12 to 15 she had been molested by Mr. Hutchings more than 300 times at his home.

Wait, what?

Mr. Hutchings is charged with 305 counts of raping a child; 356 counts of aggravated indecent assault against a child under 13, and 356 counts of indecent assault of a child under 13. He is also accused of possessing child pornography.

So are all those counts over molesting girls, or both boys and girls? The article doesn't tell us.

Which invites the question: Why does the entire first half of the article focus on boys -- repeat, boys -- who were not molested when in fact the only particular incidents chronicled were with victimized girls? And why not devote a single sentence, even a single clause, to summarizing the genders of all the victims? Why the bait-and-switch?

Again, child molestation is child molestation. Neither gender nor sexual orientation should have anything to do with it from a prosecutorial or cultural perspective. But the bigots insist otherwise, and occupational journalists -- who so often claim to stand above "mere" bloggers, ought to recognize the need to provide objective and complete data so readers, especially those with a vicious agenda of distortion and deceit, cannot misappropriate and misuse their reporting.

John Edwards, who recently dismissed the War on Terror as a "bumper sticker," is sealing his political doom by resurrecting the dumbest political bumper sticker in recent memory:

Democratic presidential candidate John Edwards is bemoaning the growing divide between rich and poor as he returns to the signature theme of "Two Americas" from his unsuccessful 2004 White House bid.
...
"Our tax system has been rewritten by George Bush to favor the wealthy and shift the burden to working families. That is simply wrong," Edwards said, according to text provided by his campaign. "There are still Two Americas."

This is, of course, utter nonsense. It is the worst kind of politician blather.

Some hasty stitches:

--The concept of "Two Americas" is simply absurd as a question of empirical fact. There is no clean and crisp divide between the "rich" and the "poor." There are a small number of Bill Gates, Scottie Pippens and Powerball winners at one end of the income spectrum, a small number of crack whores and trailer trash at the other end, and about 300 million Americans in between. The middle class swamps, by orders of magnitude, the caricatures of Edwards' "Two Americas."

--Our federal income tax system already exempts the lower half of the population by income. They pay nothing. Many actually receive money via the Earned Income Tax Credit. So the question becomes: Just how much more progressive than "the rich pay almost all and the poor pay nothing" would -- or could -- Edwards make the tax code?

--Anyone who claims to champion the working poor must, by definition, advocate Social Security (and Medicare) reform. Not merely tweaking the dials with even more payroll taxes or even more raises in the retirement age -- but real reform that relieves the oppressive 15.3% payroll tax burden on the very people Edwards claims to commiserate with.

--Similarly, the single greatest income equalizer in America (at least across generations) is public education. Or, more correctly, "was" public education. Who for the most part has controlled America's failing inner city public schools for the past few decades -- Democrats or Republicans? Anyone who wants to alleviate income equality should start, not with "the rich," but with the teacher unions and educrats who have strangled public education for over a generation. Think Edwards will pick such a fight with them?

--Finally, it demands repeating: It is still soon enough after 9/11 that the very phrase "Two Americas" is downright despicable.

"Two Americas" is something I expect -- and get ad nauseum -- from radical social conservatives -- in the form of "Homosexual America versus 'Normal' America." We don't need such un-American divisiveness from radical class-warrior liberals too.

British researchers have determined that workers "cost" their employers £124 billion per year "wasting" time on the Internet:

The average worker devotes 90 minutes a day to "personal" web use and sending emails -- adding up to 43 lost working days every year.
...
The majority feel they deserve an internet break because they work so hard.

However, it does not always go unnoticed because 17 per cent of employees admit to having been caught surfing the web when they should have been working. Two per cent were sacked for the offence.

This is, of course, utter nonsense.

Such analytical frameworks are the diametric opposites of -- yet just as erroneous as -- the one I debunked in this post on how it is the worker, not the employer, who pays for "paid" holidays and vacations.

Let's begin with some basic first principles. Employees who sit at a desk with a computer -- especially a computer with email and Internet access -- tend, overwhelmingly I would think, to be salaried employees, not waged workers. For such employees, the notions that their time "belongs" to their employer, and that not working non-stop "costs" their employer money, are wholly untenable.

The employer of a salaried worker pays a certain quantum of compensation in exchange for a certain quantum of work. Whether that work is achieved in a single, monotonous eight-hour shift, or a nine-hour shift with a one-hour lunch break, or a 9.5-hour shift with 90 minutes of personal web use, is irrelevant. There is simply no "wasting" to lament or "cost" to recoup. If the work gets done in the broad time frame agreed to, then how is the unproductive time "wasted"? The employer is given what she pays for; the employee gives what he is paid for. All else is phantom accounting.

There is no doubt some background noise to such analyses. Wear & tear or capacity constraints on the equipment. The cost of having to monitor and restrict access to inappropriate websites. Productivity gains from giving employees flexibility in how they do their jobs. But those phenomena (which tend to mostly cancel each other out anyway) are all ancillary to the basic paradigm: The employer and worker mutually agree to exchange a amount of work for an amount of compensation. There's not much more to "analyze."

Incidentally, I'd be willing to wager that at least some of those reprimands and terminations were not over "excessive" use of the Internet at work, but for inappropriate use (e.g., emailing trade secrets, submitting résumés to recruiters, or plain old naughty pictures). If the worker breaches his contract with his employer, then that's another matter altogether, and not the faux problem that these (unidentified) "researchers" are lamenting.

There is only "waste" or "cost" from a myopic, refracted -- and just plain wrong -- perspective.

How is this not a racist statement?

The Rent Guidelines Board recommended increases between 2 and 4.5 percent for one-year leases and between 4 and 7.5 percent for two-year leases at a preliminary vote last month. That's a pinch many New Yorkers say will be hard to take.

"Minorities can't afford that," said Lakisha Brown, 29, a single parent who pays fully half her income for a two-bedroom apartment in Harlem.

So all minorities are poor, and all whites are rich? (Or, alternatively: All renters are minorities and all landlords are white?)

If rent regulation is going to exist, then let's at least be accurate about what it represents: counterproductive warm-fuzzy-feeling politics that violate every principle of elementary economics and do more harm than good. Race has nothing to do with it. That's about the only nice thing one can say about it — it's an equal opportunity disaster.

More:

"If the board adopts the newly proposed rates, the housing crisis will be exacerbated," said City Council Speaker Christine Quinn.

Never mind that rent regulation — implemented shortly after World War II — was crafted as a "temporary" ameliorative to a "temporary" crisis. But, of course, it is generally impossible for a politician or bureaucrat to accept the possibility that a "crisis" is ever over. No matter what happens to New York's housing market, demographics or economy, there will always be malcontents who insist that there is a "crisis" that demands government intervention. It's part of a politician's DNA.

Still more:

"It makes it almost impossible," said [a housing activist], who noted that the city's affordable-housing stock has diminished in recent years. "A health emergency or a job loss means that they will very quickly fall behind on the rent."

What the malcontent doesn't tell you, meanwhile, is that under New York rent regulation, a landlord may have to wait up to six months before he can begin an eviction procedure against a deadbeat tenant. An amoral rent-regulated tenant can, as result, pay rent whenever she feels like it, not when it's actually due. Alternatively, every rent regulated tenant could, if they so chose, simply get five month's rent free. Nice "housing crisis" if you can get it.

Remind me again who's "exploiting" whom?

"So the hypothesis quietly altered, from cholesterol in the diet to saturated fat in the diet...[then] it is not saturated fat ...it's the ratio of polyunsaturated to saturated fat that is critical. Or is it the consumption of monounsaturated fats, or a lack of omega-3 fatty acids, or an excess of omega-6? Take your pick."
--Source.

Britain's advertising censors (who recently ordered alcohol producers to use ugly models) have banned the planned use of 50-year old egg commercials:

The Broadcast Advertising Clearance Centre, which polices the rules on what can be shown, claims the adverts do not encourage a balanced diet.

But egg experts say eggs have been unfairly singled out.

The advert features legendary comedian Tony Hancock and actress Patricia Hayes and the Egg Information Service wanted to screen it to mark its 50th birthday.

BACC spokesman Kristoffer Hammer said it was not a question of whether an egg a day would cause any harm -- but that it should be served with fruit juice or toast.

Each of the ads contains, interspersed throughout a comedic sketch, three simple assertions:

--"Eggs is cheap."

--"Eggs is easy."

--"Eggs is full of proteins."

Cockney grammar aside, each of those three statements is completely factually accurate, or at least certainly not fraudulent or deceptive in any objective sense of the words.

But, probably in response to the fashionable cholesterol mania gripping the developed world, the nanny-state censors in the U.K. feel not only permitted but also obligated to save Britons from themselves by saving them from eggs.

On the nanny state element, we of course are no better -- see, e.g., trans fat bans and the war on junk food in schools. But at least we don't flat-out censor truthful, innocuous advertising. Yet.

We should go even further. Truthful advertising should enjoy full First Amendment protection. But first you need a First Amendment. Go figure.

More thoughts at Junkfood Science.

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The only health czar I would ever trust:

The will of the majority indeed:

An angry crowd beat a man to death after a vehicle he was riding in struck and injured a young girl, police said Wednesday.
...
The driver had stopped to check on the little girl at the entrance to an apartment complex when a group of men attacked him, authorities said. The passenger, David Rivas Morales, 40, got out to try to help the driver, but the crowd turned on him, said police Commander Harold Piatt.

Morales was beaten to death by as many as 20 men and left lying in a parking lot, Piatt said. A preliminary autopsy listed blunt force trauma as the cause of death.

The little girl, 3 or 4 years old, was taken to a hospital with non-life threatening injuries.

So the question becomes: Did Morales have a "right not to be beaten to death" that exists independent of the wishes of the majority? Or are all rights, including the right not to be a human sacrifice, subject to revocation by "the will of the people"?

And is there really any difference in principle (not magnitude, but principle) between this barbaric mob revoking, with fists, Morales' basic human rights and any other barbaric mob revoking, with ballots, the basic human rights of gays?

Unbridled majoritarianism is nothing more than mob rule. Sometimes literally. The mindless slaughter of David Morales by a mindless mob is nothing more than the reductio ad absurdum asymptote of the opponents of same-sex marriage specifically and gay rights generally.

And this -- "democracy" -- is what some people elevate above individual rights and celebrate as "what makes America great."

Madness. Sheer madness.

Apparently there is quite a fierce price war<