A Stitch in Haste

--Should a person be included on a sex offender registry for having sex with a bicycle? (Via Boing Boing.)

--While we're on the subject, how exactly does one have sex with a bicycle? (Note: "Very carefully" is not an answer!)

--Is there a universal "right to anesthesia"? Was there a "right to anesthesia" before anesthesia was invented?

--Was The Communist Manifesto conceived not in Marx' brain but in his groin and armpits?

--A special guest question: Is it ethical to celebrate Halloween?

--Who is the latest victim of the "Stop Ron Paul" media conspiracy?

As I was scanning my aggregator, this picture in a feed caught my eye:



I had no idea what the news story was before I reflexively thought: What kind of ego-deficient loser needs to strut around with four stars on his collar? Police departments stop using rank equivalents at "captain." Does his department have Brigadier, Major and Lieutenant Generals too, I wondered?

Then I read the accompanying story and suddenly I was no longer surprised:

Orange County's [California] sheriff has been charged with accepting bribes in exchange for political favors and pressing a witness to lie as authorities investigated whether he used his office to enrich himself.

The case against Michael S. Carona purportedly involves more than $350,000 in cash and gifts, as well as a "get out of jail free card" for a wealthy appointee whose son was arrested twice, according to a federal indictment unsealed Tuesday. Also named in the indictment were Carona's wife and a woman identified as his longtime mistress.
...
Carona is accused of accepting gifts from unnamed Orange County businessmen, including ringside tickets to an Oscar De La Hoya and Felix Trinidad boxing match in Las Vegas; Mont Blanc pens; and luxury box seats to see the Angels in the World Series playoffs. His wife allegedly accepted designer suits and a Cartier watch valued at about $15,000. Carona also appointed his wife to the Orange County Fair board of directors.
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CNN's Larry King called him "America's Sheriff," a nickname that still appears on Carona's official biography.

It's quite simple really: Sheriffs should not be celebrities. Those who seek out the spotlight cannot possibly warrant the appellation "public servant" and are no less morally defective than any power-hungry politician.

An adapted version of a comment I left on another blog after self-loathing homosexual Donnie McClurkin spit in the face of both his fellow gays and his host, Barack Obama:

Certain branches of Christianity are more missionary than others. The ex-gay subsect of the Evangelical movement is among the most obsessive-compulsive missionary groups in all of Christendom. It is a fundamental premise of their franchise never to shut up about the purported evils -- and curability -- of homosexuality. "God commands that I speak out about it!" -- etc.

So while I of course applaud post facto indignation and activism, no one -- least of all Obama's campaign staff (who had an affirmative obligation to vet performers beforehand) -- was really entitled to be surprised by McClurkin's despicable behavior.

For those unaware of what that despicable behavior was:

He approached the subject gingerly at first. Then, just when the concert had seemed to reach its pitch and about to end, Mr. McClurkin returned to it with a full-blown plea: "Don't call me a bigot or anti-gay when I have suffered the same feelings," he cried. "God delivered me from homosexuality," he added. He then told the audience to believe the Bible over the blogs: "God is the only way." The crowd sang and clapped along in full support.

Video footage here.

It's refreshing to see a greater intolerance toward intolerance among young gays. I've often wondered, given their youth, if they truly appreciate, for example, just how loathsome and curseworthy Hillary Clinton is for continuing to support (or at least refusing to apologize and act to undo) her pervert husband's betrayal of gays, not once (DOMA) but twice (DADT). It's nice to see that so many of the next generation have learned the lessons of the past and are now applying Scotty's Rule and putting Obama (and, one would hope, his fellow moral defectives) on notice: This is not acceptable. If you want our votes, then you better start earning them. (Note that the "ENDA-T conundrum" reflects a similar if somewhat less cut-and-dry manifestation of the same "don't take us for granted" mindset.)

Gays, especially liberal Democrat gays (of which I am not one) are yearning for someone, anyone, to whom they can hitch their political wagon without holding their noses. They can now cross Obama off their list.

More coverage at PHB, The Weekly Standard, Andrew Sullivan (who omits McClurkin's use of the word "suffered" in declaring, "he doesn't say anything homophobic as such" -- Sullivan is being far too generous there).

Andrew Sullivan asks, in the context of "moments of silence" in public schools, whether just a little theocracy might be hunky-dory:

It makes you want to sympathize with the Christianists. Can we exercise a little mutual respect on these matters?

The title of his post is "Fundie Atheists."

First things first: The plaintiff parent at issue here is suing, not over the moment of silence per se, but over the overtly religious undertones in the moment of silence legislation: "silent prayer or ... silent reflection on the anticipated activities of the day" —

"Neither side here has a slam-dunk case," said Sheldon Nahmod, a Chicago-Kent Law School professor and constitutional scholar. "A statute that requires a moment of silence and that's all, or a moment for meditation and that's all, would be constitutional. But here the questions will revolve around the language referencing prayer and making it mandatory."

But of course, just having a moment of silence (which, incidentally, does nothing whatsoever to further a school's educational mission) would be too much (or is it too little?) for the theocrats, who suffer from the political equivalent of Tourette Syndrome — they can't go two weeks or travel across two school districts without having a prayer-in-the-classroom spasm.

It's a bit silly to suggest that an exasperated pushback reaction to fundamentalism is itself "fundamentalism." Stated differently, "What's one more drop?" is not a very persuasive argument to make to a water torture victim. For example:

--A federal appellate court has just rejected a taxpayer-standing lawsuit against the Indiana legislature's practice of opening sessions with sectarian prayers (non-sectarian invocations at government meetings already have a longstanding — and unwarranted — First Amendment exemption).

--Louisiana legislators are trying to resuscitate two blatantly unconstitutional earmarks to churches by repackaging them as "faith-based initiative" grants. (See my previous post.)

--Some veterans (perhaps including this guy) with nothing better to do are upset because the federal government had the audacity to remind its military cemeteries that an outrageous "Judeo-Christian" (and trinitarian, if you're keeping score) flag-folding recitation was neither officially sanctioned nor constitutional, and should not be read aloud by cemetery (i.e., government) employees without the express prior request of the family. I guess those mourning relatives are "fundie atheists" too.

And that's just what happened to be in my aggregator at this particular moment. Many, many more anecdotes and lawsuits cross my computer screen every single day, with nary a peep from me. There are only so many hours in the day. But point out a single one, or file a single exasperated lawsuit and — presto! — you're a "fundie atheist."

Sullivan's position is simply untenable. He should know better.

One of most frustrating aspects of trying to present a libertarian argument in the property rights context is having to remind people of the very nature of property rights.

The classic example is the utterly illegitimate packaging of the "smoking in bars" debate as one of "smokers rights" versus "non-smokers rights." Both sets of rights are of course a fiction. The only true rights in this context are the rights of bar owners to operate their private property as they see fit.

And what's really depressing is that sometimes even the bar owners just don't get it:

Most pub managers and landlords in England and Wales want the smoking ban to stay in place, a survey has suggested.
...
Nearly three quarters (73%) would not want the legislation to be reversed.

Of course, the pesky detail that, were the smoking ban repealed, a bar owner (sorry — a pub owner) could still ban smoking on his private property is entirely overlooked. Behold how successful central planner wannabes have distorted the true nature of the issue.

Meanwhile, the worst hit of the U.K.'s new ban is still pending, as the first winter in which smokers have to brave the elements to smoke outside the inn is rapidly approaching (cf., this post). Stay tuned.

I'm surprised this didn't get more coverage in the gayosphere:

On St. Patrick's Day, corrections officers allowed two female inmates at Lowell Correctional Facility to be joined in a wedding ceremony, prison officials said today. Eight officers were disciplined in the incident. Six were suspended, one resigned and another was fired.

According to an investigation report, the room was decorated with state paper towels and makeshift pink bows made from inmate request forms. Figures of two women sat atop a wedding cake surrounded by cards and endearments. Wearing a veil clipped to her hair and holding a bouquet of flowers, one of the women was escorted down a set of stairs to the ceremony while another inmate sang. An inmate officiated the ceremony which was described as "very elaborate." The couple was not allowed to kiss.

The internal investigation report is available at The Smoking Gun.

According to a statement released by the prison: "Staff observed and did not intervene. It is highly inappropriate to correctional setting[s] because it implies sexual relations, which are illegal in prison."

My guess, after reading the report, is that the disciplinary actions were the result, not of allowing a "lesbian wedding" per se, but rather because several security protocols were breached in the process. Most notably, the ceremony took place in the prison's "Close Management Unit" -- solitary confinement. Hardly a zone where one would expect a festive congregation of inmates to be casually sanctioned.

On the other hand:

Sgt. Jennifer Thomas, who resigned over the incident, told investigators that imprisoned "males do this all the time and homosexuality was going to happen."

Of course, male-on-male prison rape is not "homosexuality" any more than man-on-girl molestation is "heterosexuality." Rape is about power, not sex. The frequency of truly romantically inspired gay weddings in male prisons, meanwhile, is something about which I have no insight.

Incidentally,

The couple was split up by sending one to another institution.

How rehabilitative.

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Not entirely related, but advocates for gay marriage should always keep in their quivers the arrow of Turner v. Safley, 482 U.S. 78 (1987), in which the Supreme Court ruled that (heterosexual) prison inmates, even those sentenced to life without parole, have a fundamental right to marry -- even though there is no plausible scenario in which they could procreate (other than, I suppose, joint pardons). That case is among the easiest ways to pierce the bigoted gobbledygook that marriage is "only about procreation."

I had never gotten around to blogging about the controversial nomination, and now confirmation, of Judge Leslie Southwick to the Fifth Circuit Court of Appeals. The controversy, for the uninitiated, was two-pronged:

--A civil rights case in which a white employee who was fired for using a racial epithet won reinstatement.

--A family law case in which a child was awarded to one parent based in large part on the other parent's sexual orientation, which Southwick and another judge belittled as a "choice."

There's little point in revisiting these issues now. What I found interesting was the way the vote played out in the Senate, with the Democratic leadership having to quash a filibuster -- from fellow Democrats.

Also interesting was the fact the three Senators voted for cloture (a pro-Southwick vote) yet voted against confirmation (an anti-Southwick) vote. Two of the three -- Inouye of Hawaii and Salazar of Colorado -- were members of the bipartisan* "Gang of Fourteen," who had previously pledged to always oppose filibusters of judicial nominations (other than for the Supreme Court). (Carper of Delaware was the third; all three are Democrats). I suppose there's something positive to say about a politician who is willing to vote on principles ("filibusters are bad") rather than on consequentialism ("Southwick is bad"). So I'll give credit where credit is due.

Note also that if the infamous "Hastert rule" -- only allowing a floor vote when "a majority of the majority" supports it -- had been in effect, then Southwick would have never been confirmed. See my previous post.

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(*Note: I continue to refuse to drink the absurd "Lieberman is not a Democrat" kool-aid. If you are part of the Democratic leadership, then you are a Democrat. End of discussion.)

Self-loathing homosexual and pathological liar (oh, and United States Senator) Larry Craig has concocted yet another way to not go quietly into that bad night:

Craig will argue before an appeals court that Minnesota's disorderly conduct law is unconstitutional as it applies to his conviction in a bathroom sex sting, according to a new court filing.

This is the first time Craig's attorneys have raised that issue. However, an earlier friend-of-the-court filing by the American Civil Liberties Union argued that Craig's foot-tapping and hand gesture under a stall divider at the Minneapolis airport are protected by the First Amendment.

As I've blogged previously, one can only de-legitimize the criminalization of Craig's conduct by ignoring or misrepresenting what that conduct actually was:

--Craig peered into a closed bathroom stall, to the point where the undercover officer could see the color of Craig's eyes. This is constitutionally protected conduct -- how?

--Craig reached under the divider so deeply that the officer could see Craig's wedding band. This is constitutionally protected conduct -- how?

--Craig physically touched, without consent, another person. This is constitutionally protected conduct -- how?

The fact that the person in the other stall was an undercover police officer does not negate the fact that the person in the other stall was a person -- a person in the most private zone in the universe.

There is no First Amendment right to be a Peeping Tom. There is no First Amendment right to intrude upon another human being's most private bodily functions. There is no First Amendment right not to care whether another person might be neither a cop nor another consenting cretin before intruding upon his most inhibited zone of privacy.

Yes, it is all about rights -- the right not to have to deal with perverts in a public restroom. The right not to have to worry if your child wants to "act grown up" and go to the toilet unaccompanied. The right to insist that self-loathing gays accept the consequences of their self-loathing. The right to mock the mockworthy.

Those are the only rights at issue here.

--Is it a proper function of FEMA to hold fake press conferences?

--Is "driving with too many air fresheners" grounds for a traffic stop? How about "driving with too many air fresheners while Hispanic"? (Via Fark.)

--Is there a rational basis for taxing pumpkins sold for jack-o-lanterns but not pumpkins sold for food?

--Is there any downside risk to sleeping naked in a hotel room?

--Does the War on Terror require that we hide our polling places? (UPDATE: Apparently not.)

Pot.Kettle.Black.

In another jab at his chief rival, Democratic presidential candidate Barack Obama says in an ad released Sunday that the country needs an honest dialogue about Social Security in order to fix the system.
...
He accused Clinton, the Democratic front-runner, of dodging tough questions about whether the government should tax workers' earnings above the present cap of $97,500 to help pay for Social Security benefits.

Obama should read the newspapers every so often. Perhaps once a year?

Some other changes that take effect in January of each year are based on the increase in average wages. Based on that increase, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $102,000 from $97,500. Of the estimated 164 million workers who will pay Social Security taxes in 2008, nearly 12 million will pay higher taxes as a result of the increase in the taxable maximum.

But of course higher taxes, each and every year, for 12 million Americans is nowhere near enough for class warriors. Neither of any concern to them is the pesky fact that higher Social Security taxes on the rich today simply means higher Social Security benefits for the rich down the road; it does extremely little to alleviate the system's long-term nonviability.

That doesn't matter to Obama. This does:

The ad shows Obama speaking to a group of older people who quietly nod as he tells them that, with 78 million baby boomers projected to retire, Social Security will pay more money in benefits than it receives to fund the system.

A disengenuous moral defective, pandering to a gaggle of greedy ignoramuses, attacks his rivals for not pandering to them enough?

"The American Century" is unarguably over.

Time to clean out the aggregator —

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ITEM: The administrative law judge who sued a dry cleaner for $54 million over a lost pair of pants apparently (and as was widely predicted), will not be rehired as a judge. Previous post here.

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ITEM: A Federal Reserve governor (not Chairman Bernanke) assured a group of international bankers that the Fed "will continue to monitor developments in financial markets and act as needed to support the effective functioning of these markets and to foster sustainable economic growth and price stability." The fact that none of those goals is an enumerated power of the federal government goes, as always, unmentioned. Previous post here.

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ITEM: More evidence that China's Communist dictators are lying about their country's "miraculous" economic performance (i.e., they're cooking the books of their national income accounts). Previous post here.

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ITEM: Speaking of cooking the books, New York's Off-Track Betting — a government-chartered monopoly with a guaranteed revenue stream — remains on the edge of bankruptcy and is pleading, yet again, for a government bailout. That's a horse that should be scratched. Most recent post here.

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ITEM: Microsoft has capitulated in its ongoing challenge to the European Union's oppressive and irrational antitrust laws. Europe has already extorted nearly one billion euros from Microsoft, and has threatened an addition 1.6 billion euros in shakedown "fines" if Microsoft continues to — gasp! — make a better product than its competitors. Who punishes the successful, especially the wholly innocent successful, better than Europe? Most recent post here.

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ITEM: Reason has a feature article on renegade mayor Frank Melton of Jackson, Mississippi — a moral hyper-defective who has made several appearances on this blog for his outrageous, and often illegal, abuses of his office.

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ITEM: The Florida Department of Law Enforcement has completed an internal investigation concluding that the University of Florida police officer who tasered an uncooperative student during an appearance by Senator John Kerry acted within department guidelines. Which, of course, says more about those guidelines than about the incident or the student. Compare and contrast with this. Outrage in Canada, meanwhile, where airport security officers in Vancouver tasered, and thereby killed, a newly-arrived Polish immigrant who spoke no English -- apparently after only 24 seconds of trying to talk to him. Previous posts here.

George Will makes two and a half fundamental mistakes in his column today about the world before and after Roe v. Wade:

First, the world before Roe:

Because of the court's supposedly therapeutic intervention in the nation's supposedly inadequate democratic debate about that subject, the issue still generates an irritable irrationality that was largely absent before 1973.

Then, America was operating under a regime of moral federalism. In the absence of ukases from the federal judiciary that generate continent-wide eruptions of tension and anger, many states were reexamining their abortion regulations, and many were relaxing them.

This is all entirely beside the point. There is either a right to early-stage abortion or there is not -- "democratic debate" be damned. If there is such a right, then by definition the very existence of any "democratic debate" on the subject is an affront to the Constitution and an abomination to individual rights and human dignity.

The "debate" should therefore have been limited to that underlying question from the outset: Is there such a right to early-stage abortion, not whether the (facially improper) "democratic debate" was "inadequate." And that debate should have been the exclusive domain of judges in the first place. The Roe court was not usurping anything except illegitimate majoritarian abuses of legislative authority.

With that in mind: Be as Bork or as Thomas as you want about answering the question of the purported underlying right at issue. Oppose the "right to early-stage abortion" as having no basis in the Constitution if you wish. Mock the Ninth and Fourteenth Amendments if you wish. Denounce "penumbras and emanations" if you wish. But don't complain that the courts were usurping "democratic debate." Where individual rights are concerned, it is the very presence of "democratic debate" that is "inadequate." The Court may have wrongly decided Roe, but it did not wrongly hear Roe.

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Second, the world after Roe:

Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation's most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation.

As I have blogged repeatedly, and as the recent case Carhart v. Gonzales conclusively demonstrates, overturning Roe would not "send abortion back to the states." It would send abortion back to Congress -- with unambiguous (to non-libertarians, that is) authority to regulate it however it saw fit. Before the 2006 election, that would have meant the "Federal Right to Life Act." After the 2008 election, it would mean the "Federal Right to Choose Act." But above all, it would not mean "let the states decide."

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The half-mistake Will makes is using the word "ukases." It's quite simple really: Any word I have to look up does not belong in an op-ed piece. Or am I being too Colbertian?

You may recall that Wilson was caught in a bizarre twist of legislative "skill" that denied him the benefit of the increasingly universal "Romeo & Juliet" defense to statutory rape (recently enacted by the Georgia Legislature but not made retroactive). He was instead freed on a (rather generous) interpretation of the Eighth Amendment -- which is fine.

Andrew Sullivan declares Wilson "free at last." Not necessarily:

Given the court did not invalidate his conviction, Wilson was convicted of a felony sex crime. Yes, they invalidated his sentence, but not his conviction. Accordingly, since the Adam Walsh Act was made retroactive to the beginning of time, will Wilson have to register when Georgia enacts their version of AWA? Time will tell...

Note that the original trial court judge specifically held that Wilson should not be required to register as a sex offender. Congress not-so-respectfully disagrees.

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Within the broad debate over the sex offender mania is one quite specific issue that is gaining increasing scrutiny. Recall that statutory rape is the only (major) "strict liability" crime -- no criminal intent is required; the mere act is all that is required for the perpetrator to be guilty.

The rationale for this unique paradigm is not facially absurd. It mimics the logic of summarily denying any and all First Amendment protection for child pornography: the harm to the child is simply too great to even contemplate any excusal of the act. The need to protect children outweighs any concerns about the propriety of eliminating criminal intent as an element of the crime of statutory rape or the supremacy of the First Amendment.

(Note that I am not saying that I necessarily agree with that reasoning -- only that it is not facially absurd.)

But does that reasoning extend to sex offender registries (or residency restrictions)? Given that one can be a convicted statutory rapist without actually being a pervert, does including statutory rape in the list of offenses that warrant inclusion in a registry make sense?

Moreover, is it constitutional? The Adam Walsh Act is retroactive -- "to the beginning of time" as the above quote puts it. That triggers at least some scrutiny under the Ex Post Facto Clause. And even if applying a sex offender registry requirement years or even decades after a person was convicted of a sex crime is not facially unconstitutional (on the dubious logic that a registry is not "punishment"), then does not the unique nature of statutory rape as a strict liability crime not warrant at least a chance to argue against inclusion -- a "totality of the circumstances" test to be decided on a case-by-case basis in the courts? If we now allow reasonable exceptions to statutory rape (e.g., Romeo & Juliet statutes), then why not allow some reasonable exceptions to offender registries as well?

(I will also leave for another day the separate question of the constitutionality, or the propriety, of federalizing registries via the Adam Walsh Act.)

"Protecting children" is a double-edged sword that is as easily abused by activist legislators as it is used by "dedicated public servants." (Compare and contrast to the repeated attempts to unconstitutionally restrict video game sales to minors.) Regardless of whether registries residency restrictions are wise, a rush to legislate in a frenzied (and not entirely genuine) panic is neither wise nor warranted.

As I mentioned previously, I've been somewhat distracted by some off-blog personal projects, all good.

But having so much to do -- a rarity for me -- makes task management a challenge. It's almost like I have ADD:


Now I just need to find out whether JohnPliskin's shirtless roommate is a YouTuber. One can only hope...

For Discussion: Football in the rain = fun? I can't comprehend that (other than to remember that all tastes and preferences are subjective).

Care to guess what topic could generate such schizophrenia?

There's no telling how many calories the restaurant industry has expended running away from New York's pioneering attempt to improve the city’s health by requiring chain eateries to prominently display calorie information. Fortunately, the city health commissioner, Dr. Thomas Frieden, shows no sign of relenting as he pushes the industry and consumers toward acting responsibly.

That's right: The nanny-statist War on Happy Meals, led by the second worst example of Kip's Law in New York City: Gesundheitsfuerher Thomas Frieden. (The worst example is of course Mayor Bloomberg himself.)

Imagine the following hypothetical:

"Hi, welcome to McWenbell's! May I take your order please?"

--"Yes, I'm tempted to try your new McStatin™ value meal, but first you could tell me how many calories and grams of fat it has, along with the cholesterol and sodium content?"

"Sorry no, I can't."

--"Oh. Okay, never mind. Bye."

Now, that scenario is, to the Times, utterly impossible. Educated consumers are a fiction. The enlightened bureaucrats of the Health Commission must veto the market and force fast food chains to offer a service (information) that its (many, many) customers have repeatedly demonstrated that they simply do not want. The market does not work...

...except when it does:

The big chains fighting the city might take a cue from Subway. The sandwich maker is using calorie counts as a marketing tool and a way to build on its reputation as a more healthful fast-food alternative. It has voluntarily posted calories where customers can easily see them, usually on the menu board.

So demand creates its own supply, and when it doesn't — the market is wrong?

Words have meaning, even in economics. "Market failure" is not whenever some pompous bureaucrat is unhappy with what people sell or buy. If a restaurant chain finds that its customers don't care about calories, then that is, by definition, the correct outcome. The fact that Frieden — or Bloomberg, or you or I — happen not to like it is irrelevant. We can cry in our diet cola at the local Subway shop.

A late-night fantasy of mine has come into fruition:

Through a special arrangement with the publisher, the editor and the Estate of Ayn Rand, ARI has received exclusive permission to present The Ayn Rand Lexicon — now available in its entirety, free of charge, to Web visitors.
...
Through excerpts culled from Ayn Rand's many articles, lectures, and books, this work presents the Objectivist view on some 400 topics in philosophy, politics, art, economics, and psychology. The Lexicon thus serves as a mini-encyclopedia of Objectivism, complete with a conceptual index and extensive cross-references.

The Lexicon is both an intriguing introduction for the newcomer and a comprehensive sourcebook for readers already familiar with Objectivist ideas. Begun under Ayn Rand's personal supervision, this unique volume is an invaluable guide to her philosophy of reason, self-interest, and laissez-faire capitalism--the philosophy so brilliantly dramatized in her novels The Fountainhead, We the Living, and Atlas Shrugged.

A random sample of entries that I enthusiastically recommend for the uninitiated:

• Ayn Rand on "America"


• Ayn Rand on "religion"


• Ayn Rand on "property rights"


• Ayn Rand on "love"

Since Barack Obama is, qua politician, a moral defective anyway, I saw little need to weigh in on the latest manifestation of said moral defectiveness — his embracing of an unrepentant anti-gay (worse — "ex-gay") bigot theocrat, Donnie McClurkin, in a vote-seeking pander to the (overwhelmingly anti-gay) black Evangelical base.

Then I came across this gobbledygook by way of another gay blog:

We believe that Barack Obama is constructing a tent big enough for LGBT Americans who know that their sexual orientation is an innate and treasured part of their being, and for African American ministers and citizens who believe that their religion prevents them from fully embracing their gay brothers and sisters. And if we are to confront our shared challenges we have to join together, build on common ground, and engage in a civil dialogue even when we disagree.

To which my response is:

This of course completely evades the question of why I should want to be part of such a tent.

Could you imagine gay-friendly, or even gay-apathetic, Republicans telling gays to embrace a (strictly hypothetical) "inclusive" conservative candidate because that candidate "is constructing a tent big enough for the Log Cabin Republicans and the Westboro Baptist Church"? Of course not.

The only way to rationalize such an indefensible position is via the lingering — and hopefully increasingly invalid — belief that all gays are presumptively Democrats, who all presumptively embrace any and every Democratic candidate, despite any and every "innocent" mistake they may make.

And isn't it ironic that many of these same "cut Obama some slack" Democrat-at-all-costs apologists for McClurkin are undoubtedly the same "no compromise under any circumstances" community-at-all-costs people who damned Barney Frank over his "betrayal" of the transgendered in the ongoing "ENDA-T conundrum"?

One man's "litmus test" is another man's "principled stance." Calling it one in one instance and the other in another instance is every man's "hypocrisy."

A comment I left at another blog, in response to conservative group blog RedState's announcement that it has begun restricting posting by Ron Paul supporters:

First of all, "free speech" applies to government, not private people controlling their private property — including their websites. "Private censorship" is an oxymoron.

Second, liberal bloggers may not fully appreciate how out of control these Paulbearers (as I call them) have gotten on conservative and nonpartisan websites — especially YouTube.

They are, almost universally, not engaging in reasoned commenting; they post canned placard slogans that are usually orthogonal to the original blogpost and, occasionally, totally nonsensical.

They are, in other words, spammers.

So, while no fan of RedState am I, I can feel their exasperation.

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I have for the most part been spared any meaningful bombardment by the Paulbearers, despite my several unflattering blogposts about their icon. But I've seen, on other blogs and especially on YouTube, just how "spammish," unintelligent and just plain pointless these comment bombardments can be.

Bottom line: I don't know who is hurting small-l libertarianism more — the faux libertarian candidate or his misguided background-noise supporters.

More thoughts at Threat Level.

America's Future Foundation
College Blogger Contest

America's Future Foundation is pleased to announce a nationwide contest for the best conservative or libertarian college blogger. The purpose of the contest is to encourage original liberty-minded blogger journalism on college campuses and to identify young conservative and libertarian talent who wish to pursue careers as journalists and writers.

The contest is open to all graduate and undergraduate bloggers age 25 and younger. The winning blog will be awarded a cash prize of $10,000, and be invited to be a panelist at an AFF Roundtable on higher education in Washington, D.C. Awards will be announced on April 7, 2008.

Details here.

If you had any lingering doubts that all politicians are, by definition, moral defective, then let those doubts be forever dispelled:

Elrick Williams's toddler niece Carlyn may be one of the youngest contributors to this year's presidential campaign. The 2-year-old gave $2,300 to Sen. Barack Obama (D-Ill.).
...
Such campaign donations from young children would almost certainly run afoul of campaign finance regulations, several campaign lawyers said. But as bundlers seek to raise higher and higher sums for presidential contenders this year, the number who are turning to checks from underage givers appears to be on the rise.
...
Although campaign finance laws set a limit of $2,300 per donor per campaign, they do not explicitly bar donors based on age. And young donors abound in the fundraising reports filed by presidential contenders this year.

You don't know who to bitch-slap first:

--the sleazeball politicians for robbing the cradle (or, in Obama's case, suddenly "discovering" their own "no kiddie money" policies only after they're caught breaking them — the article notes that this is a recurring problem in the Obama campaign, not a one-time aberration), or

--the sleazeball parents who use their kids as fronts to launder unethical if not illegal campaign cash.

More:

Paula Madison, a Los Angeles entertainment executive who is one of Elrick Williams's sisters (he referred calls to her), said Williams had not been regularly involved in political fundraising but got excited about the notion of seeing an African American elected president. He talked to every member of the family about his desire to help Obama. One relative served as a trustee for a fund set up for Williams's children, nieces and nephews, Madison said.

They believed that because a trustee was legally responsible for handling the children's money, that trustee could make the donations on their behalf.

They "believed" wrong. So wrong that if I were a prosecutor I would seek indictments against any such trustees who squandered any minor's trust fund assets on campaign contributions. If I were a juror in any such trial, then I would summarily vote to convict. Such financial malpractice can never, under any circumstances, not constitute criminal breach of fiduciary duty (not to mention plain old theft).

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Just to be clear: I remain unequivocally opposed to campaign contribution limits and the hopelessly schizophrenic holding of Buckley v. Valeo. But I also believe in the enduring robustness of the legal doctrine of infant incompetence and certainly in the solemnity of fiduciary duty. Those long-standing rules clearly trump the reductio ad absurdum propositions that a two-year old can make an informed decision about donating to a political campaign, or that a trustee is legally authorized to make that decision for her.

Now available at the YouTube page.

19 October 2007 episode: Russia + Iran = WWIII? Is Hillary inevitable? And a prediction!

Check it out.

Wow. Just wow:

Italian bloggers may be required to register with a national database, unless an ambiguously-worded new law is amended before it comes into force.

Widespread outrage among bloggers and IT-savvy journalists has reached the mainstream press, and the government now appears to be keen to revise a draft law which has led politician Francesco Caruso to remark: "This is Italy, not Burma."
...
According to many legal experts, the murky text of the law can be construed to include non-professional, not-for-profit blogs and websites among "editorial products", giving them the same duties and liabilities as magazines and newspapers.

This would require even the lowliest Italian blogger or MySpace account holder to go through the hassle of filing personal details with the national registry of "communication operators" currently reserved for professionals of the publishing sector.

Besides its Big Brother-esque implications, this registration would also expose bloggers to penalties and jail terms if a blog post, or even a reader's comment, were considered libelous.

In a civilized nation, in a civilized century?

The politicians and bureaucrats responsible for this proposed human rights violation are of course backpedaling and insisting that, no no no, they of course did not intend to silence bloggers and that the rules (you can't just have a law, you need "rules" interpreting the law) would be developed later (by "enlightened" bureaucrats, obviously).

Fortunately we don't legislate that way here in the United States. Do we?

The proposed law is currently before the Italian parliament, where it is expected to die a quick and ignoble death.

(Indirectly via Beppe Grillo by way of Slashdot.)

An astonishingly absurd op-ed in Wednesday's OpinionJournal / Wall Street Journal, regarding the president's constitutional duty to obey -- or is it disobey? -- the Foreign Intelligence Surveillance Act:

The real issue here is not whether the president is "above the law," but rather which "law" he must see "faithfully executed" when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.

In 1803, Chief Justice John Marshall declared in Marbury v. Madison: "an act of the legislature repugnant to the Constitution is void."

Of course, that's not all that Chief Justice Marshall declared in that most famous of cases:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Quoting cases out of context is, I submit, the last refuge of lawyers who know they're wrong and are trying to pull a fast one.

Back to the op-ed:

Much contemporary debate over presidential claims of power to ignore "laws" fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential "signing statements" in recent decades.

Did you catch that? The presidential signing statement -- a wholly extra-constitutional mechanism that is harmless executive dictum at best and insolent contravention of the Presentment Clause at worst -- is a good thing because it helps uphold the Constitution. We must violate the Constitution in order to save it?

You will get no objection from me to the self-evident truth that there is a "modern congressional practice of enacting flagrantly unconstitutional statutes." But the proper presidential response to such enactments is, of course, the veto.

If Congress routinely and conspiratorially passes unconstitutional statutes, then by this commentator's reasoning, a president who signs a "flagrantly unconstitutional statute" is merely a co-conspirator in an anti-constitutional plot, pure and simple. A president who signs a "flagrantly unconstitutional statute," and then defies it, is merely a back-stabbing co-conspirator, pure and simple. A president who signs a "flagrantly unconstitutional statute," defies it, and then has the gall to insist that he's doing so to "defend the Constitution," is merely a lying, back-stabbing co-conspirator, pure and simple.

Remind me again what kind of president we have now?

As for a president who concludes that a law duly enacted before he took office is unconstitutional: he of course has the option -- indeed has only the option -- of suing over it. That would be the course of action that would display fealty to Chief Justice Marshall (and, of course to the Constitution). (And remember: FISA is not a "Carter-era law;" it is a Bush-era law.)

The notion that judicial review is even partially, let alone primarily or exclusively, the province of the executive branch as suggested in this op-ed would be flunk-the-final wrong in a high school civics class, let alone in a full-fledged jurisprudential analysis among legal scholars. To suggest that a renegade president willfully ignoring duly enacted laws is not only proper, but also a noble defense of the Constitution itself, is so shockingly preposterous as to make one wonder whether the proponent of such a thesis might not actually believe what he is writing and is instead testing the pliability of a passive audience to an ever-increasing volume of shrieking nonsense -- comparable to the infamous Milgram experiment of the 1960s.

Either way, scary thoughts indeed in this Halloween season.

"It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings."
--Virginia v. Black, 538 U.S. 343 (2003)

No fan of symbolic nooses am I (remember this?), but neither am I a fan of activist legislators intent on lynching the First Amendment:

Following a rash of cases involving nooses, the state Legislature Monday moved toward making it a felony to display the symbol of lynchings in the Old South in a threatening manner.

"We won't tolerate this," said Sen. Dean G. Skelos, a Long Island Republican who sponsored the measure that passed Monday in the Senate. "There is no place for racism and intimidation in America."

The bill also covers etching, drawing or painting the symbol. He said that, as in the case of Nazi symbols and burning crosses, an intent to threaten or harass would be part of an anti-noose law.

Compare and contrast this proposal to traditional hate crime laws: In the latter, the crime has happened, the intent is merely an escalator, a manifestation of the long-standing and totally innocuous premise that there can be reasonable bases for punishing a crime differently under different circumstances.

But with a noose law (or a swastika law or any comparable proscription), the crime has not happened — there has been no assault, no battery, no homicide, no destruction of property. There is merely expressive conduct. Revolting expressive conduct, no doubt, but expressive conduct nonetheless. Here is where the line is crossed. Here is where the government is now "punishing thought." And here, therefore, is where the First Amendment must stand athwart.

The law is unambiguous: offensive expressive conduct is fully protected under the First Amendment unless it creates a danger of "imminent lawlessness" (i.e., directly incites a crime). Brandenburg v. Ohio, 395 U.S. 444 (1969). Merely displaying a noose (or, more absurdly, drawing a noose) cannot, even under the most contrived fact pattern, foment imminent lawlessness.

Of course, a noose display can easily reflect another (bona fide) crime — such as trespass, vandalism or battery. Just as one does not need a flag desecration amendment to protect one's own flag — property laws accomplish that with no affront to the Constitution — one also does not need to criminalize noose displays to protect one's own property or bodily or emotional integrity.

---

Incidentally:

He said that, as in the case of Nazi symbols and burning crosses, an intent to threaten or harass would be part of an anti-noose law.

I'm not aware of any jurisdiction in the United States where there is law banning the mere display of Nazi symbols (with or without "intent to threaten or harass"), at least not any laws that have been upheld by any court. A hooligan who spray-paints a swastika on a synagogue door is prosecuted for vandalism (perhaps as a hate crime), but not for "illegally displaying Nazi symbols."

I have thus far been unable to find a draft of the proposed censorship law. The activist legislator proposing it insists that he will base it on precedent, by which I assume he means Virginia v. Black, which upheld a (narrowly tailored) ban on cross-burning. In that case, I would cut him some slack if and only if:

1. The bill includes the requirement that "intent to intimidate" be an element of the crime (complete with having to be proven beyond a reasonable doubt), and, more importantly,



2. The bill also includes the requirement that the display take place on the property of another or on public property (i.e., just as the statute upheld in Virginia v. Black contained).

Even in the wake of Virginia v. Black, one still has a First Amendment right to burn a cross on his own lawn, or spray-paint swastikas on his own front door. If this duplicative New York bill respects that primacy of the First Amendment, then it is merely redundant warm fuzzy feeling grandstanding by an activist legislator. If not, then it is an unconstitutional abomination and must be quickly quashed in the courts.

More on nooses at Concurring Opinions.

--Is it a proper function of government to provide taxpayer-funded drug dens?

--Should a zero-tolerance policy regarding weapons in schools require a one-day suspension for sketching a water pistol? (Bonus Question: Would such a question need be asked in a regime of strictly private schools?)

--Staying in school: Is it a proper function of a public school district to suggest, as a "developmental asset aimed at helping students become responsible and confident young adults," that students "spend one or more hours per week in activities in a religious institution"? (Same Bonus Question applies.) (Via Religion Clause.)

--What is it that creationist theocrats keep saying about how the eye, as an example of "irreducible complexity," disproves evolution?

--"If someone strikes you on one cheek, one-two drop kick the hell out of him..."? (Via Ex-Gay Watch.)

This op-ed is several days old, but I didn't want to let it slip by:

If applied nationally over the last generation, the district plan would have reversed the outcome of the 1960 election, electing Richard Nixon rather than John F. Kennedy, would have produced a 269-269 electoral vote tie between Jimmy Carter and Gerald Ford in 1976, and would have consistently tightened the Electoral College outcomes in every presidential election from 1960 to the end of the 20th century — with the winning candidate losing electoral votes and the losing candidate gaining some each time.

However, in both 2000 and 2004, the district plan would have actually expanded George W. Bush's electoral vote margins — from a razor-thin five in 2000 to 38, and from 35 in 2004 to 96.

I was advocating the District Method of allocating Electoral College votes long before it was fashionable and long before the current (and apparently controversial) California voter initiative on the subject. And I too posted the hypothetical outcomes of the 2000 and 2004 presidential elections using the District Method.

But I hop off the trolley at "Kennedy-Nixon."

The problem with such retroactive recalculations of the electoral tally is the same problem with those who hopelessly and embarrassingly blather on about how "Al Gore won the popular vote."

As I pointed out in a previous post, the results of the popular vote are utterly meaningless, since the candidates did not wage a popular contest. If the campaign had, from the outset, been a popular contest, then the candidates would have toured differently, advertised differently, debated differently, staffed differently, given different speeches, and so on. The goal was not to win the popular vote; the goal was to win the electoral vote. The difference is neither semantic nor inconsequential. How a popular contest would have played out is both unknown and unknowable.

And, despite my unswerving support for the District Method (including the California proposal), I will still acknowledge that back-testing or "re-running" previous elections, where the candidates were running an all-or-nothing Electoral College campaign and not a District Method Electoral College campaign (or a popular vote campaign), loses its validity. Especially as far back as 1960.

To say "Nixon would have won under the District Method" is perhaps plausible, but not certain. Just as it is perhaps plausible, but not certain, that he would have won but for the emergence of television (several polls after the infamous Kennedy-Nixon debate showed that Kennedy "won" among those watching it on television but that Nixon "won" among those listening to it on the radio). Such analyses are fun — and perhaps useful — thought experiments. But they are not statements of fact.

The reasons to advocate the District Method have nothing to do with revisiting (or rewriting) history. The reasons are that the District Method brings the Electoral College closer to a "fair and true" reflection of the popular vote than all-or-nothing, but without the need for an impossible constitutional amendment. It would make every state relevant again. It would make campaigns national (which they should be). It would virtually eliminate the potential for another Bush v. Gore (suing over one contested electoral vote is less likely to be worthwhile than suing over 25 electoral votes).

The District Method should be about looking forward, not looking backward.

Much buzz over Ron Paul's appearance at the most recent Republican debate joint press conference --

CAMERON: Why are those on stage who support a constitutional amendment banning gay marriage wrong?

PAUL: OK. Well, if you believe in federalism, it's better that we allow these things to be left to the state. My personal belief is that marriage is a religious ceremony.

And it should be dealt with religiously. The state really shouldn't be involved. The state, both federal and state-wise, got involved mostly for health reasons 100 years or so ago.

But this should be a religious matter. All voluntary associations, whether they're economic or social, should be protected by the law. But to amend the Constitution is totally unnecessary to define something that's already in the dictionary.

We do know what marriage is about. We don't need a new definition or argue over a definition and have an amendment to the Constitution. To me, it just seems so unnecessary to do that. It's very simply that the states should be out of that business, and the states -- I mean, the states should be able to handle this. The federal government should be out of it.

There's no need for the federal government to be involved in this. You can accomplish this without waiting five or ten or 15 years. The authority can be put in the states by mere voting in the Congress.

Libertarians are rejoicing. Andrew Sullivan declares it "conservative sanity."

I call it a moral defective being morally defective.

To review:

I oppose federal efforts to redefine marriage as something other than a union between one man and one woman[.] ... In fact, the institution of marriage most likely pre-dates the institution of government!
...
If I were in Congress in 1996, I would have voted for the Defense of Marriage Act[.]
...
I was an original cosponsor of the Marriage Protection Act, HR 3313, that removes challenges to the Defense of Marriage Act from federal courts' jurisdiction.

If I were a member of [a state] legislature, I would do all I could to oppose any attempt by rogue judges to impose a new definition of marriage on the people of my state.
...
The division of power between the federal government and the states is one of the virtues of the American political system.
...
[I]f federal judges wrongly interfere and attempt to compel a state to recognize the marriage licenses of another state, that would be the proper time for me to consider new legislative or constitutional approaches.

There are two possible explanations for Paul's (only somehwat) changed stance, neither of which in any diminishes his contemptibility on the subject:

1. Re-read, carefully, exactly what Paul said: "We do know what marriage is about. We don't need a new definition or argue over a definition and have an amendment to the Constitution."

Here is an openly declared anti-gay bigot, trying to appeal mostly to openly declared anti-gay bigots, insisting that "we know what marriage is about." Do you really think he thinks, or that he thinks they think, that marriage "is about" two competent consenting adults not being irrationally discriminated against simply because of their sexual orientation, premised upon primitive religious dogma and the "will of the majority"?

Or was there a not-so-subtle implication: "We do know what marriage is about -- a man and a woman." "We don't need a new definition -- from activist judges." And so on.

This is -- if it is what Paul is attempting -- comparable to the silly garbage that Rudy Giuliani is telling these same theocrats about appointing "strict constructionist" judges -- a term that has no coherent meaning except as code for anti-Roe. Giuliani is engaging is naked, uncomplicated Mephistophelian haggling: Give me the White House and I'll give you the Supreme Court. No philosophical underpinnings required. So too, perhaps, with Paul, the theocrats and gay marriage.

2. The alternative is of course that Paul has indeed flip-flopped on gay marriage. Which makes him "not just another politician" -- how?

He may be selling a "new and improved" version of himself, but I'm still not buying.

An editorial in today's New York Times:

This country's meager tax take puts its economic prospects at risk and leaves the government ill equipped to face the challenges from globalization.

That's right — the single greatest threat to the nation's prosperity is that it is not taxed enough. The single greatest threat to your prosperity is that you are not taxed enough.

Federal outlays were $2.6 trillion in 2006. But you are not taxed enough.

The federal budget is roughly 20% of the American economy every year. But you are not taxed enough.

And don't forget state and local government taxes: $1.2 trillion in 2006. But you are not taxed enough.

It's quite simple really: No economy ever taxed itself into prosperity. Lots of economies have taxed themselves into oblivion. But you are not taxed enough.

And even if there is some theoretical "absolute minimum tax level," below which the American economy would collapse due to the inadequate provision of legitimate public goods, it is sheer lunacy to suggest that we are anywhere near that level today. But you are not taxed enough.

How can it be that, in a modern era, some of the most educated people, in charge of one of the most intellectually influential entities in the most intellectually advanced nation on earth, could be such hopeless jackasses?

I'm suddenly feeling very down. Very down indeed. And not because I'm not taxed enough.

More thoughts at Cato@Liberty.