Judging Judges

This post, at best, supplements Charles Krauthammer’s From Thomas, Original Views. (At worst it is just a crappy rewrite.) Click here to read the article. Krauthammer notes three ways judges interpret the Constitution, and three SCOTUS judges who embody each way.

An excerpt:

With Thomas’s originalism at one end of the spectrum and Scalia’s originalism tempered by precedent — rolling originalism, as it were — in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and that the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.

Let’s begin with
Originalism: From Wikipedia:

The key to originalism is that interpretive decisions made by Judges should be based on facts about the document when it was originally written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent or original meaning does not support the end result sought, a ruling supporting that result is not granted. In this manner, originalists contend, alteration of the Constitution remains the prerogative of the amendment process outlined in Article V.

Thomas is a true originalist, which means he is the bogeyman conservative liberals complain of in that he supports anti-sodomy laws in Texas, while at the same time he is a dirty hippy worthy of Cartman’s scorn since he’s for legalizing pakalolo in California.

Rolling Originalism, as Krauthammer puts it, is embodied by Justice Scalia. Rolling originalism complies with the doctrine of stare decisis, which says judges must follow precedent. So, ideally at least, while Scalia may wish to be a pure originalist like Thomas, he is constrained by precedents set by previous courts that were not originalist. (Scalia’s critics believe he complies with stare decisis only when it is convenient for his conservative agenda. I have to agree with them that Scalia is a hypocrite. Still, regardless of why and how he does it, he does employ “rolling originalism.”)

UnOriginalism: There is no antonym for “originalism”, nor “originalist” et cetera so I’m going with the antonym to original and sticking “sm” on the end. Some would say Judicial Activism is the antonym, but that term is way too loaded. (For one thing, judges who ignore stare decisis in favor of originalism can be accused of judicial activism.) Suffice it to say that “UnOriginalism” is embodied by Justice Stephen Breyer, and that it considers the Constitution to be a “living document” whose meanings change as the times change.

The point of this post is not to make a value judgment regarding which of the three methods above is best, rather it is to raise the bar of the conversation. As Krauthammer says at the end of the article:

I hope President Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench but, perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile toward women, opposed to gun-free schools . . . and pro-marijuana?

When Bush’s judicial nominees are tried in the media liberals often cherry-pick rulings to portray them as conservative extremists. But judging judges this way is neither fair nor really useful. Congress is full of lawyers and they know how judges come to their decisions. The vast differences between the way laypeople think about a SCOTUS candidate and the way a lawmaker/lawyer does is unhealthy. I hope words and phrases such as stare decisis, originalist, and jurisprudence constante become part of the national vocabulary by the time President Bush nominates the next Supreme Court Justice candidate.

Editorial: If you’re just interested in this subject here are some excellent reads I found while researching the above:

Click here to read a Slate which sort of describes the Justice Scalia Scalia claims to be, but is not.

There are some good arguments for rolling originalism. If the laws of the land change every ten years nobody can trust the law. Having said that, there are many great arguments AGIN’ it. The best I’ve found is this (bold mine):

Frank is correct that Kelo is consistent with previous takings cases. But, Thomas makes the argument that those cases were poorly reasoned and “wholly divorced from the text, history, and structure of our founding document,” and therefore ought to be reconsidered. Frank apparently thinks stare decisis trumps everything, so those previous rulings cannot be reconsidered, no matter how strong the case against them. I disagree.

Yes, precedent should matter, and we need some stability and predictability. But, no, it’s not more important than restoring the limits on government power that the founders intended and the plain meaning requires. I guess that’s one reason I’m not a conservative — I’ll be damned if I want to “conserve” what should never have been permitted to begin with.

Frank’s “conservatism” regarding precedent forces the proponents of liberty to play only defense in the courts. We can try to prevent losses of liberty and expansions of government power, but once we lose on an issue, it’s lost for good. We can never regain lost liberties or undo government encroachments. No part of the Constitution, once ignored, can ever be restored. I don’t accept that. I’m not content to “stand fast” in a rising tide of statism; I want to move back toward shore.

Click here to read the source of the above excerpt, entitled Don’t Count on Conservatives. It is about the Kelo case, and it is good.

One major problem with Originalism is that we have veered so far away from it that it may be practically impossible to return to it. Click here for some good arguments along that line. Also, it rips Scalia a new one.

This links to a good dialogue regarding stare decisis and originalism.

Peggy Noonan and Orgasms

Peggy Noonan has a post today about how politicians from both sides are full of themselves. Click here to read it. It reminded me of a soul orgasm from my second novel, CLOWN.

Wait a second... if you haven't read CLOWN you don't know what I mean by "soul orgasm." Here's a soul orgasm, as explained by Clown, main character and narrator of CLOWN:

In a way I always thought John Donne was an idiot for asking God to crush him so that he would turn to God to ease his suffering. But I also dig what he was saying.

Even the fact that he wrote that poem took a lot of nerve. He was a believer, so part of him knew that poem was a prayer, so when he wrote and published it he must have known that it might be answered. He reached the point in his life where he was tired of waiting for the tests so he asked for them. But he did it in a sideways manner, and I don’t think you can give him a lot of credit for it.

I never went into the Seattle Art Museum. You go into museums so you can have moments where you’re more alive, more conscious of what it means to be alive and capable of thought and feeling. Moments like the one the monument gave me. I call them soul orgasms because, like regular orgasms, you can’t have one right after another, you need some recovery time.

Unless you’re a woman. But even women can’t have multiple soul orgasms. At least I don’t think they can. Regardless, there was no point in going into the museum because I’d just had a soul orgasm and I wouldn’t be able to have another one regardless of what I saw in there.

I rarely have soul orgasms from paintings or sculptures anyway. Usually it has to be poetry. When I say poetry I mean music, too. Music is a form of poetry. Lyrical poetry. If you love music you love poetry, in case you didn’t know.

Okay, so that's what Clown calls a soul orgasm. So when I wrote CLOWN I tried to have soul orgasms and then express them. When I did so I called that section of writing a soul orgasm. Long story still long, I had a soul orgasm regarding long talkers that Noonan's piece made me recall, and here it is:

I walked over to the Pike’s Place Market to watch the fish-throwers. They’re generally pretty cool to watch. But they were standing around bored so I walked over to the booths where they sell crafts and stuff. But the vendors all want you to buy something and if you don’t they take it personally because they make a lot of it themselves. So I felt uncomfortable so I went to this place called The Excuse Room.

The Excuse Room is a club/restaurant/bar decorated like an old-fashioned steak house. What makes it cool is they always play base-heavy techno. Plus they have a bunch of movie manuscripts in a shelf by the door and you can just grab one and read it while you drink your coffee or eat.

What sucks about it is that during the day there are a lot of loud talkers there. Loud talkers annoy me. You know they’re talking louder than necessary so you’ll overhear them and be impressed because they know who-the-hell or did whatever-who-cares, and some of the stuff they talk about is impressive. But who cares what they did if the person who did it is a loud talker?

That’s one of the things I learned when I was a little kid. I was in 3^rd grade and I had a loose tooth. The cool thing when I was in 3^rd grade was to pretend that losing a tooth was no big deal. Back in 2^nd grade it was cool to loose a tooth. But by the time you got to 3^rd grade it was cool to not care that you lost a tooth.

So I’m sitting there, waggling my tooth back and forth, and I feel that queer little snap you get when the last of the roots break and your tooth is sort of sitting in place there for no particular reason. And then it just falls onto my tongue and I taste that gum-blood that doesn’t taste like blood when it comes from anywhere else on your body. And I’m thinking:

“You lost a tooth. Now don’t be cool, be SUPER cool. Don’t even TELL anybody.”

So I didn’t. Nobody ever knew. I never even told my mother after school and she didn’t notice either. But right after I picked my tooth off my tongue and set it on the cold metal of my desk’s under shelf, (we didn’t get those stupid no-shelf desks until middle school) I got this big empty feeling and had to take deep breaths so that I wouldn’t cry. I’d just figured out that nobody would notice I lost it. There would be no mini celebration and no attention.

If you’re cool nobody knows it.

I mean a few people you are really tight with do because they KNOW you. But no way can any stranger tell you’re cool because you have to TELL them you’re cool and cool people don’t do that. It sucks but that’s how it is. That’s reality. I knew that in 3^rd grade but the loud-talkers in the Excuse Room still don’t. So I left.

I'm not exactly surprised that the politicians in Noonan's piece don't know it. But, then again, what's a politician to do? Being a politician is like having to constantly talk women into giving you their phone numbers. You have to brag but not seem to be a brag- you have to make yourself be liked without seeming to try to be liked- you have to disguise your desperation with a veneer of apathy- tough biz.

8 Raider Predictions for the 2005 Season.

1. Collins goes to the Pro Bowl. Culpepper does not. Randy Moss makes okay quarterbacks seem great, and okay is all Culpepper has ever been. Rather than try to prove it to you, I ask you to click here and read the article. The most relevant excerpt:

“Culpepper must thank his lucky stars that he has Randy Moss making him look this good. I'm not saying Culpepper's not a good quarterback -- but it's worth pointing out that just about every quarterback who's played in the quarterback-friendly Minnesota offense in the Randy Moss Era has put up absolutely blistering statistics. Not just Culpepper, but Randall Cunningham, Jeff George, Gus Frerotte and Todd Friggin' Bouman. Don't believe me? In two starts last year, Frerotte's quarterback rating was 118.1. Two years ago, in five appearances and three starts, Bouman's rating was 98.3. We're not exactly talking about Pro Bowlers here -- but they sure did put up Pro Bowl numbers.”

Moss already said Collins is a better quarterback than Culpepper, which Culpepper called “crazy.” Collins took a mediocre team to Super Bowl 35 (you remember, the one we should have won, had Pope not let the tight end go, and Dorsett not taken the bad angle, and had Fat Bastard not purposely broken Gannon’s shoulder.) Culpepper has never been there, and with Moss gone, he never will be.

2. Raiders make the play-offs. Minnesota does not.

See Prediction 1.

3. Raiders sweep Dungver.

Bailey can’t cover Porter, much less Moss. Dungver is importing fat underachieving defensive lineman to improve their defense. The worm has turned in this battle of franchises. The good old days have come again.

4. CWood makes the Pro Bowl. Champ Bailey does not.

Reason A: CWood will have his best year.

1. He’s a free agent next year.

2. He’s practicing against Moss every day, which has to be humbling.

3. He’s had bad luck with freakish injuries the last couple of years. He’s due an injury free season.

Reason B: Bailey was never as good as CWood.

1. See prediction 3. How Champ Bailey made the Pro bowl after Porter toasted him repeatedly on national television last year is beyond me. After Moss burns him to a crisp, eats him, and then moons the Dungver crowd (with his pants down this time) and farts Bailey-ashes out, Bailey will no longer be considered Pro bowl material.

5. The Chargers lose their charge.

Why? I don’t know. Maybe not. I just hate their coach, so I hope it will be so.

6. Courtney Anderson and Antonio Gates have better years than Gonzalez.

Gonzalez is in his 10th year, and the Chiefs really have nobody else to throw to… Look for CWood to blanket him, to nullify him, when the Chefs play the Raiders, and look for other teams to make similar adjustments. Gates is already better than Gonzalez, and Anderson will break out this year.

Anderson might not be as good as Gonzalez, but after covering Moss, Porter, Curry, and Jordan coming out of the backfield, defenses will have no answer for “California.” (Get it, Courtney Anderson- CA- California- He grew up in Cali and went to college in Cali and now he’s a Raider, plus he’s that big? Just an idea. If it is already out there I apologize).

Btw, stat wise it is interesting to compare the three:

Anderson:

Height: 6-6
Weight: 270
Born: 11/19/1980
College: San Jose State
NFL Experience: 2

Gates:

Height: 6-4
Weight: 260
Born: 06/18/1980
College: Kent State
NFL Experience: 3

Gonzalez

Height: 6-5
Weight: 251
Born: 02/27/1976
College: California
NFL Experience: 9

So Anderson is the youngest, tallest, and the biggest. He is not, yet, the best, but Turner knows a thing or two about tight ends, and he seems to think Anderson is something special.

7. Raiders will win 10 games. Game by game I have us winning 11.

@ NE. loss

KC. Win

@ Philadelphia. loss

Dallas. Win

Bye

San Diego. Win

Buffalo. Win

@Tennessee. Win

@KC. Win

@Washington. Win

Denver. Win

Miami. Win

@SD. loss

@Jets. loss

@Cleveland. Win

@Denver. Win

@NY Giants. Win.

So that extra loss is for the officials screwing us out of at least one.

8. Raiders run defense will be top ten in the league.

They will have to throw to keep up with our offense, and Ryan has had a year to teach his system, and a year to learn his players. Plus, the way Danny Clark talks, and the way Collins talks about Danny Clark and the rest of the defense, is making me a believer.

GO RAIDERS!!!

Comments are greatly appreciated, even criticism, so don't be shy. For more Harkonnendog Raider articles visit:

1. Plunkett: Best Raider QB Ever? 5/19/2005
2. And yes MORE incompetent Raider reporting! 3/17/2005
3. More incompetence from the Bay Area media 3/4/2005
4. Monte Poole and Tim Kawakami = Sad but Funny 2/24/2005

(This is generally a political blog, with occasional short stories and such. If you're conservative this is for you. If you're a lefty, or a right for that matter, you might want to take a look at the UPC, which is a group blog made up of equal parts right and left-biased pundits which I'm proud to be part of.)

Revisiting core assumption #1.

A little less than two weeks ago I compiled a post about why the liberals of the UPC and I differ on Iraq. Click here for the whole thing, which is pretty interesting: Today's post is about how I was wrong about core assumption #1. The relevant excerpt from the link above:

------------

The original underlying assumption has been bolded. My reply is in italics. Fester's reply to my reply is not italicized, and my reply to that has been italicized. And you know- we can keep this going... I can update. So please comment.

• 1. THIS IS A GUERILLA WAR with all of the intricacies that implies
• 1. Disagree... I'd like to know how you define a guerilla war and how Iraq fits the definition
• 1) Guerilla War --- a war composed of small unit, hit and run tactics with at least one side able to fade into and out of the civilian population where the aim of the guerillas is not to defeat main force units of their enemy but to inflict sufficient attrition and system destabilization so as to make an occupation too costly and not worthwhile --- can evolve into main force v. main force but does not need to.
• 1. The traditional model of a guerilla war doesn't work because 1. Iraq is a democracy 2. Most of the effective fighters are foreigners. 3. They aren't trying to recruit the general population. They are pissing them off.

---------

The Belmont Club helped me see the light. Click here to read the whole thing, for it is good. The relevant excerpt:

Political influence, combat capability and territorial control are the real metrics of a successful guerilla campaign. The argument that mere existence or avoidance of defeat constitutes victory is hogwash: both the IRA and the Red Hand Commandos exist, but clearly the IRA is the more successful guerilla organization because it has a national united front, some combat capability and hard and diverse leadership core where the Red Hand Commandos do not. Even Al Qaeda, which some claim to be a creature of pure thought has sought to control territory in Afghanistan and spread its influence through Islamic "charities" while under the control of a central group of militants. It was, in other words, no different from any other classic guerilla organization. While the Iraqi insurgents still retain the capability to kill significant numbers of people they are almost total losers by the traditional metric of guerilla warfare. First of all, by attacking civilians of every ethnic group and vowing to resubjugate the majority ethnic groups in the country they have at a stroke made creating a national united front against the United States a near impossibility.

My mistake was thinking it was not a guerilla war because the insurgents weren't doing what they would need to do to WIN a guerilla war. Pretty foolish, actually, since that logic would mean nobody was ever trying to do anything if they went about it wrong. This is sort of a reverse-pyrrhic concession. I've said all along that we are beating the insurgency in Iraq, and Wretchard (writer of the Belmont Club) has shown that we are winning by any traditional, measurable standard. A few more mistakes like this would be wonderful.

Great post of the day debunks 2 liberal myths.

Myth 1. We had no post occupation plan in Iraq.
Myth 2. Americans believe Saddam Hussein caused 911.
Click here to feast on the debunkage @ Dean's World!!!

Althouse-inspired thoughts on Kelo

I dig the Althouse. I respect the Althouse. But I often disagree with the Althouse. Yesterday I scolded her for slacking when she said she may not post about Kelo because all that could be said had been said.

Today she gave her take. In short, she thinks the Supreme Court did well.

(In long: The Althouse writes directly, clearly, and fairly. By fairly I mean she doesn't sugar her medicine. She tells it as she sees it, either without editorializing or without trying to justify or disguise her own editorializing. When I read such writing it clears my mind. Her posts are also fact filled, so the field she cleared with her prose style is then well seeded. (I provide the bullshit- er, fertilizer, myself.) ANYWAY---- the point is I like a lot of what I write in her comment section.)

I assume she is right about the points of law, of course, but believe she is wrong to agree with the decision. I put my reasons in her comments section, and I'm cutting and pasting them below. Click here to read her original post.

My comment:

Harkonnendog said...

Ann,
Thanx for your thoughts on the case. Like many others I am disappointed that you agree with it.
I feel it is a power grab by and for the judiciary. Kennedy basically said that "public use" is some amorphous thing that can't be defined but he, and other wise judges like him, will know it when they see it.
Rulings like this, rulings that empower judges and make the law more ambiguous, are wrong.
This may be a dumb analogy, but I'll use it anyway... Whenever they make a new NFL rule people talk about how it will help offenses or make injuries less likely or whatever... but I judge the rule primarily by whether or not it asks the officials to make a judgment call. Judgment calls make things worse in the NFL. They lead to inconsistency- in effect to different rules being used at different times and for different people. This applies to laws as well, I think.
Aside from that- this ruling will have terrible consequence. First, the fact that you don't know what a judge will decide does NOT act as a warning to developers or local councils... it favors the rich- it favors those with more to lose. Rich people can chance litigation poor cannot.

Beyond that, it takes less than 20k to bribe a county councilman- and if you've bribed one you've bribed them all since they generally support each other's bribes. So for 20k of risk a developer can reap millions! I haven't heard of judges being bribed much but the mere threat of litigation will make most poor (blighted) homeowners give up without a fight.
I don't know what kind of fantasy world Kennedy lives in- where developers don't use intimidation or bribe local officials.
Aghh...
Anyway, thanx again. And thanx for providing a comment section for me to express the frustration, too.
Cheers!

Recently, the Althouse has been good enough to respond to my comments- if she responds to this one I'll update.
UPDATE:
Kevin, in the comments, says it better than I did:
I wouldn't have used the NFL analogy but I see where you were going. Simply, the Supreme Courts exists to make those murky law clear. If they do something that doesn't clear up and issue or further darken it - they're not doing thier job. It's just that simple.

And G, a commenter on Ann's site, brings up a great point.
What I, and many others, find objectionable about the Kelo decision is its interpretation of the words "public use". What you call nuance, I see as self-serving semantics. "Public use" simply does not mean "public benefit", neither now nor in the 1700s. If the framers had meant "public benefit" they would have said it. The Constitution was not written to make governing easier, but harder, and twisting the definitions of the words does no one a service.

Gravitational Pull-up

This weeks UPC Gravitationi Pull-up question is:

At what age do you think you'll retire at, and where do you plan to retire to?

I don't even know anybody, in my non-net life, who thinks along these terms. I'm one of those struggling (which is a huge improvement over my former quasi-starving status) artist types who lives sort of from year to year (which is a huge improvement over the recent past, when I lived week to week or month to month). I'm 33, I'm newly married with a kid, and I'm barely making ends meet. Retirement? I think I'd need a real career first, lol.

Another reason to love Justice Thomas

I guess the current incarnation of the U.S. Supreme Court understands that it will soon be reincarnated from a 5-4 liberal- read stasis and proto-fascist- court into a 5-4 conservative- read non-stasis proto-liberal- court. (I know it sounds weird. But when I say proto-liberal I mean liberal in the sense of the soul having room to breathe, as opposed to liberal in the sense of hysterically comparing Gitmo to the Gulag.)

So this stasis court (I love the word stasis- I don't even really know what it means- almost nobody really does- so when I use it in context it means whatever it should- don't you love that?) is now hearing case after case before it is killed off. Great.

So rich guys can now take poor people's homes. All they have to do is buy off local politicians, pay the poor people what the home is worth (and the paid-off politicians will decide what it is worth- isn't that wonderful?) and then they can “develop" the land. Great. Used to be, rich people had to dupe poor people. Now they can make the police strong arm poor people once they've bought off the county council. Great.

And now the Fed can regulate weed you grow in your own home for your own use BECAUSE IT HAS AN EFFECT ON INSTERSTATE COMMERCE!

Great. Congratulations to all you liberals! You decided long ago that the law is whatever the Supreme Court says it is, that the Constitution is a "living document," that the legislative and executive branches must defer to the judiciary. You basically separated the law from the people. Surprise, surprise- those decisions have had some unintended consequences.

The solution to this problem is Judge Thomas. If he is made Chief Justice he will overturn precedent to restore the Constitution. And the further solution is finding another judge JUST LIKE him.

Ebert sucks.

Roger Ebert sucks. Consider:

1. Napoleon Dynamite- This is one of those movies you love because it is true to life. Not to your own life but to somebody’s. How do you know it is true to life? First, because it is original, second, because it resonates with something inside you. Ebert lacks that something. He doesn’t feel it. He doesn’t get it. He gave Napoleon Dynamite 1.5 stars, and he completely missed out on the fact that Napoleon Dynamite and Pedro and Kip are triumphant, and that the movie is about finding love and friendship by not giving into despair despite loneliness, alienation, etc. Ebert you’re a idiot!!! God!

2. Swingers- This was another true to life story. Again it was about finding love and friendship blah blah blah. Again, Ebert just sort of misses all that. Okay, Ebert, presumably, is friendless and loveless or he just can’t relate to young people finding love or friendship, or he’s never been lonely or… Whatever. He gave Swingers 3 stars because, this time, he recognized the film is very true to life. Which makes sense because he probably knows a lot of people like those in Swingers so he recognizes the type. Anyway, I’m not saying Ebert sucks because he gave Singers 3 stars, I’m saying he sucks because he gave Made 3 stars. What the fuck? Made was your basic waste of time. It tried to work the Daddy angle and failed. It tried to work the gangster angle and failed. It tried to work the friendship angle – and failed. The two main guys aren’t friends because they like each other- they’re friends because nobody else likes them. And it is not true to life at all.

3. Old School- Old School is brilliant. You might have to watch it a few times to figure that out. From the Heart cover during the reception (great direction) to the character development of its three stars to its recognition and playfulness with the formula it uses to its dumb but funny humor, this is a great funny movie. If you don’t like the genre, well, fine. But to give it 1 star is ridiculous. The movie wasn’t made for you, Cheese, er, I mean, Roger.

4. Fight Club- He gave it two stars. Again- a movie about love and friendship, basically, and Ebert doesn’t get it. Anyway, you saw the movie. It is a mind trip. And it tapped into something I guess Ebert doesn’t approve of, given his review; a latent anger at the way American men have given up on violence as a way to get what they want. Men feel that anger, sometimes, and there is something great about making a movie about that.

5. Fahrenheit 911- He gave it 3.5 stars. Now, I’m sure many Bush haters think it should have had 4 stars, and I’m not going to pretend I even saw the thing so that I can judge. But Ebert is supposed to be a film critic, and 911 was marketed as a documentary, and the movie is FULL of lies. It is also dishonest in that sneaky sort of way where you can’t call it a lie but you can call shenanigans. Ebert consistently allows his lefty politics to inform his movie critiques. It is sort of like a conservative professor giving a liberal student a bad grade on a brilliant paper because that paper criticized Bush. It is scummy. Anyway, that ranking of that documentary (don’t be fooled by the fact that Moore, once the movie had been fisked to death, claimed it WASN’T a documentary after all) shows Ebert is not a very professional, much less an ethical movie critic.

That is all, for now. I’ll add to this list as I go.

Travels in Liliblogdom, Part 1

Liliana told me Tutu-man’s invisible gourd helmet made the unseen seen. She told me it took her back in time, made spirits corporeal, drew demigods to her, and made her head hot. Of course I dismissed these claims as phantasms born of a fertile mind seeded with the stories her grandfather told her as she rode around Kauai seated before him on his motorcycle. When Lili, (as I thought) pantomimed handing the helmet to me, I was prepared to pretend to feel the weight of it. Imagine my surprise when I reflexively flexed to hold a real weight – to not drop the nothing – in front of me.

I was on the couch, with a heavy slab of Koa wood on my lap, and with my laptop attuned to The Daily Kos, atop that. I brought my hands, and whatever I grasped between them, in front of my face. The edge of it hit the computer screen. I moved my hands all around it. Yes, it was in the shape of a helmet fashioned of a gourd. Yes, the texture was… gourdy. I stared but discerned no hint of substance betwixt my palms; there was no betraying flash of light such as a glass surface might cause with imperfect refraction, nor any, ever so faint, smudge. It was invisible.

That meant Liliana’s stories were all true. All the stories of her adventures with Tutu-man; of giants and gods and goddesses and menehunes and mo’os and more, were all true. What were the limits of this device's power? Tutu-man's stories had directed Liliana’s thoughts before she donned it. Where would it bring me? I trembled as I pulled it down over my head. The texture was hard and grainy- about what I thought a helmet created of a gourd would feel like.

“Joblobley?” a man said.

“Joooo- blob- ley,” another replied.

I remained in my home, or at least in a place that assumed its shape. The furniture was different only in the details. I remained seated on a couch, but it wasn’t my couch. There was a coffee table in front of mine, but it was made of glass, not wood, and atop it were various decorative candles rather than a stack of National Geographic magazines.

“JOBlobLEY!” I said. Only it wasn’t me. I was not only invisible, I was untouchable, ungraspable. The man who had so emphatically claimed JOBlobLEY had Kitty Pride-ed me. He was phased into me on the couch, or vice versa. I jumped up off the couch, (though how could I have pushed off it?) and screamed. None of the 20+ people in the room noticed. I was truly invisible, untouchable, and apparently unable to be comprehended by any person’s senses.

“JobLOBley!” yelled another man.

Everyone started clapping, and quite a few approached and shook his hand or hugged him.

A few moments passed.

“Jobobley?” a woman asked in a high, shrill octave.

“Jobobley,” answered another, this time with a throaty, deeper tone.

“Jobobley,” said a man.

Whereas people were stressing different syllables of the word “Jobobley” during the first exchange, this time they used tones to change the word.

After eight or nine more “Jobobleys” a falsetto version seemed to satisfy all, and another round of clapping and congratulations began.

This happened nine or ten times before I walked out of the home, bored despite the oddity of the conversations. The house, much like my home on Kauai, overlooked the ocean. I followed a trail down to the beach. All over the beach groups of people were having “Jobobley” conversations, intoning the word in seemingly endless variation- arguing until one version of Jobobley was found to be superior. What sort of land was this? What sort of people?

The answer, or rather the solution to the mystery, sailed into the bay a few minutes later. It was an old fashioned war ship. It reminded me of The US Constitution, a famous fighting ship I’d read about. The ship was slightly keeled to one side, propelled along by trade winds. Rows of cannon pointed towards the shore from three or possible four decks. It was too far away to tell.

Soon people around me started pointing out towards the ship, and the cries of “Jobobley” grew shrill and angry and hoarse. The ship tacked around, and in the midst of the maneuver, for the first time, I could see the front surface of the sails. A giant green lizard stood out in fierce relief. Its red tongue seemed poised to snatch a meal of the the letters "LGF" as the ship came nearer and then completed its tack. Now I could count the gun decks. There were four in all.

I saw the flash of before I heard the sound of the guns. I pulled the helmet off before I remembered that I could not be harmed.

I was back on the couch with Liliana.

“What did you think?” she asked.

Perspective in Iraq

The criticism of Iraq continues. This is from fellow UPC member Cernig:

Chuck Hagel may be wrong when he describes this administration’s policy as “disconnected from reality”, which would mean they are criminally incompetent.

Criminally incompetent? Iraq and Afghanistan, two countries halfway around the world, have been liberated from Saddam Hussein and Islamofascists, respectively. They are on their way to becoming functioning democracies, something unthinkable 10 years ago. There hasn't been a major terrorist attack in the US since 9/11. (Knock on wood.)

The liberal response is to call the Bush administration "Criminally incompetent."
It is like saying the Patriots suck because they only won the Super Bowl 3 out of 4 years.
It is like saying Cindy Crawford is ugly because she has a mole.
It is like saying Saint Theresa was selfish because she ate food that could have fed others.
It is like saying Jimi Hendrix was a bad guitar player because he didn't play with his toes.
It is like saying Mike Myers isn't funny because he was in So I Married an Axe Murderer.

Smart, educated, wonderful people, honest believe the "Criminally Incompetent" theme. How can you argue with someone who finds the almost unbelievable success in Iraq and Afghanistan an indicator of incompetence? You can't. I mean you would point to Iraq and Afghanistan as indicators of hyper-competence. Saying they are indicators of incompetence is ridiculous.

It is like saying Reagan almost threw away victory in the Cold War.
It is like saying Bush Sr. was a wimp.
It is like saying being a fighter jockey is for cowards.
It is like saying Harvard graduates are dumb.
It is like saying Gitmo is a gulag.

Well... I guess we shouldn't be surprised. Weary, yes. Surprised... Nah.

Christian nutjob...

This guy, Father Daniel, should burn.
But it can help put these into perspective- imagine Romania was run by this guy and his buddies:
That's Iran;
That's Afghanistan before we liberated Afghanistsan.
Now imagine politicians use thousands of guys like Father Daniel to talk young men into going on Crusades throughout the world. Imagine Father Daniel runs the national television station.
That's Palestine;
That's Syria;
That's Algeria.
Now imagine Romanian strong men are tolerated, even revered, because only strongmen can keep guys like Father Daniel and his parishioners in check- and that at any moment nobody is quite sure whether the strongmen or the Father Daniels will be running things next week. And imagine the government of Romania is encouraging, or at least allowing, thousands of Father Daniels' faithful to go to war in a nearby country so that Father Daniel can't use them to get control of Romania itself.
That's Saudi Arabia;
That's Jordan;
That's Egypt;
That's Iraq before we liberated it.

Dinner in D.C.

Dear Sir or Madam,

Perhaps you've never heard the story of a todder named Tellious Brown, who was taken from his mother, Lakendra Trice, during a carjacking. Imagine, please, how Tellious's young mother felt as shock turned to fear, fear to panic, panic to hysteria, and so on. The worst part of this, surely, was the combination of fear for her son's safety, impatience for his return, and the recognition that she was powerless to save him herself.

It is terrible for a person to imagine such a sequence of feelings. For most of us, thank goodness, it is nigh impossible. But I have felt such things. In fact, if I told you how I felt last night, as I waited, and waited, and waited to be seated, you may well have thought I was worrying about an abducted child, rather than wondering about whether or not a dinner reservation would be honored.

I've written this note upon this napkin, to be delivered to you by the waiter, for fear that I would not be able to speak the words aloud. Tellious was returned to his mother, safe and sound, so that story had a happy ending. This story's ending depends upon you. I hope you will, at the very least, comp my desert.

Sincerely,
Senator Dick Durbin


I shamelessly stole the idea from Iowahawk. Click here to read his tales about Dick.

11 Core Underlying Assumptions About Iraq

As a member of the Unpaid Punditry Corps I’m blessed by an obligation to read and try to understand my liberal comrades’ posts. When I disagree with something they believe I try to “correct” them. They do the same for me. This can get, er, uncomfortable. But that’s the point of the UPC- we force our heads up out of our respective echo chambers.

The War in Iraq has caused heated debate- we could not agree to disagree, it seemed- and fellow UPC member Fester tried to find the root of our disagreements by creating a list of underlying assumptions he used when thinking about Iraq. He listed 11 assumptions, and, surprise surprise, I disagreed with 10 of them. We went back and forth in the comments section, and I compiled the arguments below. I’d like very much to read other UPCers thoughts on these 11 assumptions, and also, I’m interested in the thoughts of the commentators… Etienne, Richard from NY, Kirk, all of you.... Speaking for myself, I’m really glad you all are here!

The original underlying assumption has been bolded. My reply is in italics. Fester's reply to my reply is not italicized, and my reply to that has been italicized. And you know- we can keep this going... I can update. So please comment.

• 1. THIS IS A GUERILLA WAR with all of the intricacies that implies
• 1. Disagree... I'd like to know how you define a guerilla war and how Iraq fits the definition
• 1) Guerilla War --- a war composed of small unit, hit and run tactics with at least one side able to fade into and out of the civilian population where the aim of the guerillas is not to defeat main force units of their enemy but to inflict sufficient attrition and system destabilization so as to make an occupation too costly and not worthwhile --- can evolve into main force v. main force but does not need to.
• 1. The traditional model of a guerilla war doesn't work because 1. Iraq is a democracy 2. Most of the effective fighters are foreigners. 3. They aren't trying to recruit the general population. They are pissing them off.
• 
  
• 2. The US will win any straight up fight AND EVERYONE KNOWS THIS
• 2. Disagree... Many of the terrorists are delusional and don't believe this at all
• 2) Look at the preferred series of tactics --- the smarter guerillas sure as hell seem to know that they have a couple minute engagement window against US forces before the full weight of US firepower can start coming into play. Also look at the development of anti-armor tactics and situations --- strip a US company of its armor, and the fight gets a whole lot more even.
• 2. Preferred maybe, but there are MANY instances where terrorists are choosing to stand and fight when the Marines come around. And in Fallujah I'd say the majority stayed. The myth was that Americans didn't have the stomach to fight in places where their toys didn't give them easy victory. That myth has proven untrue, but I think a lot of insurgents still believe it.
• 
  
• 3. The insurgency is operating with a deep and committed bed of support from the Sunni Arab community within Iraq.
• 3. Disagree... Define your terms. Deep and committed? Sunnis sell out Sunni terrorists every day.
• 3) According to internal polling done by Centcom: 45% of the Sunni population believes it is proper for Iraqi's to shoot at US forces while only 15% do not believe this to be true. Historically an insurgency can survive as long as 10%-20% of the population it is operating in has this belief system. So 45% support is deep and embedded, even though there are informers and allies of the US within that community.
• 3. Deep and imbedded... I believe that, if another poll were done today, those numbers would change. Anyway- the insurgency is not against US forces, but against Iraqis.
• 
  
• 4. The Sunni Arab community believes it will receive a much better deal by outlasting the US and imposing either rent against a Shi’ite dominated government for non-violence or a military victory that is far more favorable to them then currently participating in the political process.
• 4. Disagree... Most of the Sunni Arabs probably wish the fighters would just stop.
• 4) Look at the behavior of those who theoretically have the power to cut a better political deal --- avoid the elections, make demands that they know the Shi’ites won't meet, refuse power sharing arrangements that are in line with their proportional population etc. This is an assumption by deduction.
• 4. But you're talking about a tiny minority that's actually fighting. The vast majority would rather make peace now.
• 
  
• 5. Sooner or later the US will get out of Iraq in some fashion; the Sunni Arab community will stay in Iraq no matter what.
• 5. Disagree... We're still in Germany and Japan.
• 5) But we are not in Vietnam; we are not in Lebanon etc.
• 5. That assumes we lose. Where we win, we stay.
• 
  
• 6. The US is facing significant manpower sustainability concerns at the moment that will only get worse
• 6. Maybe... The idea that we're at crisis level has not been proved. "Significant" as in we can't stay in Iraq for another year? Or what, exactly?
• 6) We can stay for about another 12 months before the National Guard hollows out, the Reserves hollow out, and retention starts going to hell in the active duty forces as the question is "3rd tour in Iraq or my marriage" The wives will win most of those debates.
• 6. If they stayed for a 2nd why not a 3rd? Also, the efficacy of the troops there is the question. And as America becomes better at fighting the insurgents, and shifts more attention to Iraqi security forces, we'll need fewer troops.
• 
  
• 7. Public support in the US will continue to go down as the population remembers that in December, 2002 that it was strongly against a war that did not find anything new on WMDs, without UN authorization and with high costs in lives and money to have been worth going to.
• 7. "Continue to go down?" From where to where? As good news increases the popularity will rise, not lower.
• 7)I thought we have been inundated with "good news" already --- but seriously, right now 55-60% of the country disapproves of the idea of going to war in Iraq --- and given that the generals are saying that at least another 2 years of 125,000+ deployments, at ~80-90 billion per year in direct costs and another 20 billion or so in deferred capital costs, with a constant drip of casualties I have a hard time seeing support improving.
• 7. We'll have to see. I think things will improve in Iraq soon. And that popular support will reflect that.
• 
  
• 8. The current level of violence has created a systemic breakdown of the modern state, thus depriving the Iraqi government of revenues, political sticks and carrots and most importantly, popular legitimacy or expectation of relevance.
• 8. Disagree - Do you have any polls etc. that support this? The blogs I read support the opposite.
• 8.The attacks against the oil infrastructure have led to significant budget shortfalls to the degree that special commando units have not been able to get paid for several months --- and these are the more effective units out there. The Shi’ites in government are liked by the Shi’ites, and the Kurds in government are liked by the Kurds --- however, the government has been able to get very little down in terms of basic services (water, electricity, fuel etc.) so while people may like their sectarian based leaders, they are not delivering on the functions of government.
• 8. We're starting with different assumptions. My assumption was that Saddam had pretty much destroyed the state already.
• 
  
• 9. The Shi’ite and Kurd dominated government does not have anything that vaguely resembles an effective AND numerically sufficient security force in place nor will it have that force in place for at least several years.
• 9. Disagree- The security forces are growing and getting much better at what they do.
• 9) 3 battalions out of 107 combat ready --- overwhelming majority of forces are either sect based or looking for a paycheck with units consistently showing 20-30-40% desertion rates (see Samarra for the best example) and every other damn experience shows that standing up a new armed forces from near scratch takes five + yeas.
• 9. It is growing and growing more effective. As it grows the insurgency does not. Those desertion rates don't apply today, I think, since security forces are no long securing their home areas.
• 
  
• 10.The government is thoroughly penetrated and is an information sieve.
• 10. Agreed
• 10) No argument
• 
  
• 11. Iraqi nationalism is a shared common thread among the Sunni community and the Shi'ite community --- most pronounced in the Sadr movement/Mahdi Army.
• 11. Not sure what you mean by this. Iraqi nationalism HELPS the US cause.
• 11) Iraqi nationalism only helps in maintaining a unified Iraq if every other non-actively shooting at the US player decides to continue to not shooting at the US. However, as soon as the Shi’ite government feels that it can withstand a coup attempt, nationalism kicks the US out in a heartbeat--- it is also a probable motive for the penetration of the Iraqi government by Shi’ite informers.
• 11. Nationalism means the state OVER religion. If Shi’ites are nationalistic that means they want a full Iraqi state, as it is now, as opposed to a 3 part state. They know the US helps them to do that.

Two wonderful posts of the day from Wretchard at The Belmont Club

The first, By Other Means, describes how "the actual level of combat operations is probably increasing..." in Iraq. Wretchard uses fellow Unpaid Pundit Fester's number crunching from this post, though he disagrees with Fester's analysis. Click here to read By Other Means, for it is very good.

The second, By Other Means 2, follows up on the above piece. Wretchard can be effing brilliant sometimes. By Other Means 2 is a great example. Click here to read By Other Means 2, for it is the fabulous.

Dean's World fisks the Clinton "rape"

Click here to read it, for it is good. An excerpt:

You have a man making an offhand comment that may well have been a joke, and what looks like two people having a fun night in a hotel room. Nothing more. Unless and until one of these two people comes forward and wants to say this was rape, this is two consenting, married adults and absolutely none of your business.

I will never intentionally link a story on The Drudge Report--and from this day forward, I will never buy a copy of, or ever link to, a story in NewsweekTrash, or from Ed Klein.

This is obscene.

The folks over at Hillary Now! ask a question: "You proud of this sh**, Bush voters?" To which my answer would be: since when is Ed Klein a Bush voter? He's been a Clinton booster for years.

Besides, the people who applauded Fahrenheit 9/11--easily the worst piece of fascist hate-propaganda since Leni Riefenstahl's Triumph of the Will--have no business bashing others for being slime-merchants. The truth is that both parties have their scumbags. Matt Drudge and Ann Coulter are scumbags, but so are Michael Moore and Seymour Hersh. I guess some people think of the worst dregs of each party's politics as being "part of the game," but it's not going to stop me from condemning it wherever I see it. I find it all highly unpatriotic and highly offensive.

If the roles were reversed- if such a claim were made about Bush on such scanty evidence, people would think Karl Rove sewed the seeds. I am, I'm ashamed to say, one of those so twisted with hate for Clinton, while he was President, that it warped my perspective and my sense of right and wrong.
So maybe I would have bought it, back in the day. But not now. This claim is just stupid. And talking about it, defending it, can only backfire on conservatives. It seems, if the quote is accurate, to be a case of Bill Clinton not being PC. Saying you're going to "rape" your wife when you mean you're planning to have some nasty violent consensual sex is not PC, but c'mon, it isn't comparable to rape.
I hope the right wing of the UPC agrees with me on this.

This Week's Gravitational Pull-up

PSoTD's Gravitational Pull Up for the week asks:

In your opinion, what segment of society or culture or the economy is in greatest need to be reached by political blogs at this time?

Good question... I don't know. I just don't know. I guess... if I could force a segment of society to read 10 blogs each day, I would choose 11th and 12th graders. I would just love for this demographic to be familiar and at ease with blogs.

Those who were moving on to college would have a massive and wonderful array of political blogs with which to combat the orthodoxy and dogma foisted upon them by indoctrinating professors.

Those who moving on to life would have a massive and wonderful array of political blogs with which to combat the orthodoxy and dogma foisted upon them by the MSM.

Muslim Women Will Reform or Destroy Islam

... Depending on your point of view. This is the very 1st, and probably the very last time the post of the day will be an article from Yahoo! Click here to read it, for it is the excellent.

Quick summary. There are some Muslim women in Europe who decided it isn't okay for Muslim women to be treated like slaves, and they are calling on European non-Muslims to help them. There are a lot of pissed off intellectuals in Europe who are blaming the victims for asking for help. There are a lot of pissed off Muslim women in Europe who would rather try to modify the terms of their enlsavement than demand freedom, and they are pissed off, too.

Good stuff.

My French Connection

I do business with a Frenchman; (is it Frenchman? Is that how you say it?) Francois is his name; He was born in Madagascar, has lived all over the world, and is now a US citizen. Nonetheless he is French. We talked politics a bit. His opinion on:

The French rejection of the EU.
It was 100% about Turkey. Turkey has 73 million people and if France voted "OUI" Turkey would have been allowed in, meaning those 73 million Turks would be allowed in. This would be a disaster for France because
1. It would cost the French working people thousands of jobs.
2. The Muslim already there are not assimilating. While Turkish Muslims aren't Wahabbists, France needs 10-15 years before she can assimilate the old Mulsims, and begin trying to assimilate new ones.
3. Chirac chose to couple the EU referendum and Turkey's entrace, showing how incompetent and out of touch he is with French people.
4. Domenique de Villepin is even worse. Disagreeing with America about Iraq is one thing. Villepin's anti-American actions in Africa were stupid and vile. You don't do that to allies. Villepin is practically insane.

French Business:
France is a horrible place to be a small business owner.
1. Every small business in France is audited every year, and a French auditer makes Inspector Javert look like Officer Barbrady.
2. French unions have made it almost impossible for a person in France to be fired. Once you hire someone you are stuck with them in that firing someone is more costly than paying them to be incompetent.
3. Britain is the best place to do business in Europe because Britains laws reward success.

Muslims stepping on the American flag

Click here for a link to the video and some thoughts from Powerline.

An excerpt:

My favorite part is when the leader of the terrorists says something like, "Don’t be afraid...we have a legal permit...come and join us...don’t be afraid to speak out...This is not like the countries back at home where you raise your voice against the government and they take you in for torture. No...this is one of the loopholes of this government. We have the right to put this flag down and step on it."

My first thought was "Why would you come go to the US from home, wherever "back at home" was, if you wanted to turn America into a repressive shithole, like home? My second thought was- I've heard this before. Many of my 1st and 2nd generation American friends from Korea felt the same way about America (everyone of them sort of grew out of it after visiting Korea). Same goes for my two friends from Ethiopia.

I think many 1st, 2nd, and 1.5 generation Americans believe America is relatively rich and free and egalitarian- and thus gives almost everyone a shot at success and security- not BECAUSE of American culture, but DESPITE American culture. So the men in this video aren't really out to destroy the culture they chose- they are out to destroy the culture they are forced to tolerate in order to have a material lifestyle they like.

But they are wrong. American culture IS the reason America is what America is. The stereotype American- stupid, lazy, fat, immoral, slutty, et cetera is a myth. Sure, there are thousands, maybe hundreds of thousands of Americans who fit that stereotype to a T. But they are not the norm. And America is not America despite, but because of Americans. And you don't get an American lifestyle- nor American opportunity, nor American freedoms, without American culture.

Pirates of the Constitution

I’ve long thought the left didn’t care for, nor respect the Constitution. I still don’t. But I’ve long though the right cared for and respected it. Now I don’t.

Click here to read how Dean Esmay lays it out very, very well. An excerpt:

Conservatives talk a good game about states' rights. We now know that many of them are bald-faced liars. Antonin Scalia chief among them, along with anyone else who endorses this obscene decision

Kudos to Sandra Day O'Connor, William Rehnquist, and Clarence Thomas for actually understanding what the 10th amendment says and means, and not just using it as a figleaf to hide party-line right-wing opinions.

...

Mind you, I have nothing good to say about the so-called "liberals" on the bench, who should all obviously be called "statist control freaks" instead. But Scalia takes the cake. This is the man who said sodomy laws could stand because it's wrong to encroach on state law? Liar. He obviously made that decision because of his contempt for gay people, no more. (Thomas and Rehnquist, though, have just illustrated that you CAN hold a states' rights position and really mean it sincerely.)

This whole thing is scary for a number of reasons. But the #1 reason is the lack of choice for American voters. Federalism is effectively dead, if the elites on both sides won't back it once they are in power. This and McCain/Feingold should be the two biggest domestic political issues of the day, but they are not.

The logic of the decision is indefensible, as Justice Thomas shows:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

The judges have simply chosen to ignore the Constitution- as they did in Roe v. Wade. It wasn't convenient so toss it.

Wait, it isn't THAT simple. There is, of course, a line of reasoning which rationalizes the decision- just as there was for Roe v. Wade. According to Ann Althouse, it goes like this:

I’m not at all surprised by the Supreme Court’s opinion in Gonzales v. Raich. Justice Stevens, writing for the six-member majority, relied heavily on Wickard v. Filburn, a 1942 case that upheld the regulation of a farmer’s production of wheat that he grew for use on his own farm and never intended to sell. The Wickard Court interpreted the Commerce Clause to allow regulation of the entire market on the ground that even trivial components on the market count, because, taken together, they have a substantial effect on interstate commerce. Home consumed wheat was part of the market both because it supplied the home-use needs of the farmer who would have had to buy it in the market and because the farmer might change his intentions and decide to sell it in the market.

So in 1942 a bunch of assholes said the Fed can control wheat a man won't sell at all, much less sell across state lines, becauase if he didn't grow it he MIGHT choose to eat wheat that WAS grown across state lines, so his growing wheat changes the price of wheat everywhere in the US.

Based on this, "marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana" must be regulated by the Fed. Why, though?

Again, according to Althouse:

if noncommercial, homegrown marijuana were seen as beyond the Commerce Power for medicinal users, it is also beyond the Commerce Power for recreational users.

So what's the problem? There IS no national market for marijuana, is there? Can you sell marijuana futures now? It is a bit frustrating, for those of us who don't study law, when lawyers talk amongst themselves. Althouse is a very smart woman, she must have some good reason to support this idiocy- I don't think she's purposefully hiding it- but I also don't think she's explaining it simply and clearly.

Here is the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Can anyone to explain logically and clearly why it is okay to ignore the simple wording of the 10th Amendment? The Constitution, not previous rulings by the Supreme Court, is the law of the land. When a precedent is used, in practical terms, to subvert the Constitution, that precedent either does not apply or should be tossed. You don't toss the Constitution.

UPDATE:
Ann Althouse was good enough to answer the 1st of my questions, which I posed to her in the comments section. (yes, I’m aware of the spelling problem, lol.)

Ann, (or anybody)
Can you refute this, from Thomas, please?
"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers."
Also- can you explain it without making reference to precedence? I mean no precedence trumps the Constitution, right?
thanx

She answered:

Harkkenodog: Thomas is arguing for a narrower interpretation of the Commerce Power than what the majority accepts. The majority thinks that the plaintiffs' behavior, taken in the aggregate, does have a substantial effect on interstate commerce and falls within the Commerce Power for that reason. The "substantial effects" theory has the potential to justify anything Congress wants to do, and if so, the basic concept of enumerated powers would be destroyed, as Thomas notes. The best defense of the majority position in answer to that is that regulating components of an interconnected market is something that belongs within the Commerce Power and you still have something falling outside of that power: behavior that is disconnected from an interstate market.

So I asked:

Ann,
Thank you so much for answering. But I still don't understand- "that regulating components of an interconnected market is something that belongs within the Commerce Power and you still have something falling outside of that power: behavior that is disconnected from an interstate market."
There IS no interstate market, right? CA can only make it legal in CA, right? I mean are they regulating illegal markets?
Also, how does the Commerce Clause trump the 10th Amendment? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Does the Commerce Clause spring from TWO amendments or something?
Thanx again. I'm sure this is rudimentary stuff... I just don't get it.

And she answered:

Harkennodog: The way it's analyzed, the homegrown product, though not bought or sold, is still related enough to the market because: 1. it supplies the users need which would be supplied by the market if he didn't grow it (thus, growing your own affects the market by reducing demand), and 2. it "overhangs the market" and might flow into the market (for example if the price went way up).

The 10th amendment is interpreted as just another way of saying that Congress has a limited set of powers -- it's a redundancy in this view, not a source of independent limitation on the powers. So you figure out the scope of the Commerce Power and then what's left to the state is whatever is beyond that scope.

So, there it is. “The 10th amendment is interpreted as just another way of saying that Congress has a limited set of powers -- it's a redundancy in this view, not a source of independent limitation on the powers.” I suppose this is a nice way of saying the 10^th Amendment is just, er, a waste of ink? A fool’s paradise? A… Here’s what the conversation reminded me of…

Elizabeth : Wait! You have to take me to shore. According to the Code of the Order of the Brethren-

Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl , Miss Turner .

What a bummer.

(Let me add this is not meant to offend Professor Althouse, who was kind enough to answer my questions. What a wonderful thing the internet is, especially because of people like Ann Althouse. How else could a salesman from Kauai get a legal explanation from a law professor in Wisconsin so quickly? What a revolution we are in the midst of.)

For a little more info about how the Commerce Clause turned the 10^th Amendment into what you would call a guideline, as opposed to an actual law, click here to read this by Thomas Sowell.

Two good posts of the day.

Imagine the engine in your car is just a generator of electricity. The electricity generated then flows directly to your wheels, where motors in each wheel move the car. This is how submarines have worked for the last 50 years, this is how huge tractors are working now, and this is how your car will work in 5 years.
Click here to read the article.
Getting rid of all the stuff that used to send the power to the wheels makes the vehicle 5x more efficient! However, the old combustible engine will still be in your car, (though in a different version) because that will still probably be the best way to store and extract energy.


Click here to read the second article, which shows the Downing Street Memo is- er- nothing much. Conservatives have pretty much been ignoring the issue because it is a tempest in a teapot- but these things can grow all out of proportion if they aren't debunked or perspectified.

The Left's biggest problem

is the perception embodied in the following excerpt: (click here to read the FrontPage magazine.com article, by David Horowitz, that it is excerpted from)

Mohammad Basirul Haq Sinha: "You often call for uniting Muslim and progressive forces globally. How far is it possible under current situation?"

Galloway: "Not only do I think it's possible but I think it is vitally necessary and I think it is happening already. It is possible because the progressive movement around the world and the Muslims have the same enemies. Their enemies are the Zionist occupation, American occupation, British occupation of poor countries mainly Muslim countries. They have the same interest in opposing savage capitalist globalization which is intent upon homogenizing the entire world turning us basically into factory chickens which can be forced fed the American diet of everything from food to Coca-Cola to movies and TV culture. And whose only role in life is to consume the things produced endlessly by the multinational corporations. And the progressive organizations & movements agree on that with the Muslims."

I don't buy it. I don't think Galloway personifies progressives, nor the English Left, nor the American Left, any more than Ward Churchill does. But, to paraphrase a famous rap song- I'm not saying all lefties are Galloway, but all lefties have a little Galloway in them. What's worse, many American lefties have embraced Galloway since he publicly spanked the US Senate.

In the excerpt above Galloway calls for an alliance between progressives and Muslims, but in real world terms he is really talking about an alliance between progressives and radical Islam, using the logic that the enemy of my enemy is my friend. Far too many on the left have embraced the radical left, scum like Churchill and Galloway and Che Guevara, employing similar reasoning.

But this is like rooting for Emperor Palpatine because Yoda speaks like he's reading off fortune cookies. No, that's not fair. It is like rooting for Palpatine because the Jedi didn't bother to save Annakin's mother, first from slavery, then from the death Annakin foresaw. I mean the temptation is there- if these Jedi are bad enough to allow slavery in general, and to not liberate The Chosen One's Mom from slavery, then maybe the Sith aren't so bad.

Radical Islam is the left's worst nightmare. Here's an expert from an old Harkonnendog post (click here for the whole thing), about areas where liberals and Islamists (people who would spread radical Islam by force) differ and agree:


Gay Marriage:
Liberals- "Make it happen. By fiat if necessary!"
Islamists- "What gays do in the privacy of their own homes is an abomination. We will kill them."
Free Speech:
Liberals- "Yes! (Well, except on college campuses.)
Islamists- "Yes! As long as you quote the Koran. If you blasphemy we will kill you."
Feminism:
Liberals- "Of course!"
Islamists- "No Burkha; No penis; No life. We will kill you."
Democracy:
Liberals- "Even the dead should be allowed to vote!"
Islamists- "Sharia is the will of Allah. Allah's will trumps that of the people. Sharia rules, ore we'll kill ya'.
Death penalty:
Liberals- "NEVER!!!"
Islamists- "With ROCKS!!!"
Rape:
Liberals- "Don't blame the victim. Keep her identity secret."
Islamists- "Kill the victim. She should have worn a looser burkha. Don't laugh or we'll kill you."

So you would think liberals would not be soft on Islamists. Yet they are. The following shows some areas where liberals and Islamists agree:

George Bush:
Liberals- "We wish Gore or Kerry won."
Islamists- "We wish Gore or Kerry won. (It would be easier to kill ya.)"
Israel:
Liberals- "Israel needs to make peace with the Islamists. Even if that means they can't retaliate to terrorist attacks, when doing so would stifle the peace process."
Islamists- "Israel will have peace only when every Jew is pushed into the sea. But, we totally agree about the no retaliation thing. (Btw we're gonna kill u libs, too.) Pagans!"

So what is Galloway thinking? It is tempting to dismiss him as a crazy aberration or a twisted opportunist- in fact it is so tempting I DO dismiss him, as both. But what is the left thinking when they choose NOT to publicly distance themselves from him? More important, why does the American left allow itself to be defined by the Galloways and Churchills and Michael Moores? (It would be like the right allowing itself to be defined by the David Dukes.)

Well, democrat politicians are in a terrible position. Every vote is crucial, so nobody, even the kookiest of the kooks, can be offended. Everything democrats do is defensive. They are now the party of obstruction- they are blocking Bolton, they are trying to hold the line on judicial appointments, they are trying to stifle Bush’s Social Security reform et cetera. But obstructing does not win elections, and it certainly does not advance a political agenda. To advance their agenda they need to win more elections- but to win election the left needs to move towards the middle. To get to the middle, the moderate left must vanquish and stifle the Galloways and Churchills and Moores, and their enablers and defenders within the party, and prove to America that it has done so.

I don’t think Howard Dean is the man for the job.