Daschunds!

The Wife's friend from work is going to be out of town for a few days, and she agreed to host their two daschunds here at Soffit House while they were gone. These are the first boy-animals we've had in our house in years. And Pete and Duke are really cute. When I was a teenager, we had a daschund. I usually like bigger dogs but dachshunds are a big exception to that preference -- I love the elongated little critters! These little guys are still sniffing around and getting acquainted with our big mutts; the girls are, I'm afraid, trying to bully them around, but one of the little dogs is giving back some of what he's been getting. The other one is a little bit more timid but they're settling down together.

The cats are pissed.

Casting The Baroque Cycle

If I were going to produce a movie -- more like an HBO mini-series, I should think -- based on Neal Stephenson's The Baroque Cycle, here's some ideas for who I'd like to cast (if money were not much of an object, of course):

Daniel Waterhouse	Peter Krause
Eliza de la Zeur	Miranda Otto
Jack Shaftoe	Jamie Bamber
Isaac Newton	John Malkovich
Gottfried Leibniz	Philip Seymour Hoffman
Louis "Leroy" XIV	Roger Moore
William of Orange	Willem Dafoe
Enoch Root	Johnny Depp
Princess Caroline of Ansbach	Michelle Monaghan
Sophie Charlotte	Kathy Bates
Dappa	Djimon Hounsou
Roger Comstock	Kyle MacLachlan
Le Duc d'Arcachon	Stellan Skarsgård
Etienne d'Arcachon	Jeremy Sisto
Édouard de Gex	Christian Bale
Catherine Barton	Kate Beckinsale
John Churchill, Duke of Marlborough	Scott Glenn
Robert Hooke	David Eigenberg
Peter Romanov, Tsar of all the Russias	Hugo Weaving
Peter "Saturn" Hoxton	Gary Oldman

Fellow Baroque Cycle fans are welcome to criticize my choices and suggest alternatives. Take your best shot.

Keep in mind that several of the characters would need lots of makeup to show them aging; the story takes place over the course of about seventy years. So for some of the actors, an age range (assisted by makeup and lighting) of something like forty years will need to be within reach.

Assuming that most of the dialogue will be in English, I'd prefer a mix of about half British actors and half Americans. Given that British English was accented to sound more like modern American than it does today back in the early 1700's, a blend of the two kinds of accents would be required of just about everyone -- but I'd want to give a feeling of old-world-meets-new, and mixing Americans and British would hopefully do that.

And the list of casting choices doesn't end at my list. But at some point the production would run out of money and this is a pretty expensive list -- even if the royalty figures aren't going to be on the set very long, the story would demand some time of Malkovich, Depp, Hoffman, and Oldman. Especially Malkovich, as Newton is a major figure in the novel. Other figures, though, would be "guest stars," so if I were going for an "all-star" cast to attract attention to the project, I'd look for people like Dame Judi Dench to make a guest appearance as Queen Anne Stuart, for instance. She'd probably only need to be on the set for one day or so, and it would give her a trifecta of British monarchs, which would be kind of cool -- she's already played Queen Elizabeth and Queen Victoria.

Of course, filming something with the epic sweep of The Baroque Cycle would be superlatively difficult and expensive. To do the story justice, each of the three volumes would take at least six hours -- so now we're out of the realm of movies and into the realm of things like series on HBO. If we're doing that, then there is probably enough material for a full traditional run of five seasons of thirteen one-hour episodes.

Some of the stuff would be pretty hard on the viewers, like the early Royal Society experiments. But HBO and Showtime will tackle stuff like that. It'll never happen; as I understand it, Neal Stephenson is not interested in licensing the film rights at all. But it's still fun to think about.

Harry Reid Just Got Put In Check

I think the answer is "no." Roland Burris was appointed to the U.S. Senate today by embattled Illinois Governor Rod Blagojevich. How much he paid for this honor is yet to be determined (Blagojevich, alone of all the people paying attention, insists that he is innocent of any wrongdoing).

Burris himself seems to be a fine choice. His resume indicates a reasonable background of governmental and political service and substantial intellectual ability. He has been practicing law for a long time, won election to and served without significant incident as Illinois' Attorney General for four years, and ran for U.S. Senate in the 1990's, coming in second in the Democratic primary to Paul Simon.

But this doesn't matter. What matters is that Democrats need to squash the taint of corruption like an obnoxious bug, which means hammering down, hard, on Blagojevich and anyone associated with him. So Blagojevich could nominate Jesus Christ or Mahatma Gandhi or Abraham Lincoln for the post, and Harry Reid would still refuse to seat him.

Or, at least, he will try. The Constitution appears to give the Senate the power to deny a seat to anyone who shows up claiming to have been elected or appointed to that body. Article I, Section 5 says that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ... and, with the Concurrence of two-thirds, expel a Member." No limitations or criteria for judging or expelling the Member is included in the Constitution. So it would seem that the Senate can, by a majority vote, decide that Burris is not a validly-appointed Senator and refuse to admit him to within their number.

But wait. Consider the case of Powell v. McCormack (1969) 395 U.S. 486. Adam Clayton Powell, Jr. was re-elected to the House of Representatives from the 18th Congressional District of New York in the election of 1966. But it turned out that in a previous term, Congressman Powell and a lot of his staffers had submitted transparently and grossly inflated travel reimbursement vouchers. When Congressmen tell you that your expense report is obviously padded and you look like you're suckling from the public teat in a way that embarrasses the whole institution, well, you are.

After deliberating on the issue for a while, the House refused to seat Powell. Importantly, the vote to exclude him from initiating membership in that Congress was 307 in favor and 116 against, more than the two-thirds requirement that would have been necessary to expel Powell had he been seated. However, Speaker McCormack had ruled, while presiding over the debate, that a majority vote would have been sufficient to pass the resolution to refuse to seat Powell. McCormack's claim in 1966 is the same claim being advanced today by Senator Reid with respect to his resistance to seating Senator-Designate Burris.

So ultimately, the question became whether the Court could intervene in this decision at all -- that is, whether or not the Court could properly issue an order saying, "Seat the man, he was elected," or if the Court was required to say, "Congress, you have to tend your own house as you see fit."

The Court undertook a detailed analysis of the minutes of the Constitutional Convention concerning this subject and found that "the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the "indisputable right [of the people] to return whom they thought proper" to the legislature."

Then, the Court looked at the case of William McCreery, who had been elected to the House from Maryland in 1808, when a lot of the Framers were still serving in Congress. Despite the fact that he did not meet the eligibility requirements of Maryland law (that he have been a resident of Maryland for at least seven years before being elected), he did win his election; his opponent complained that McCreery shouldn't even have been on the ballot and asked the House to invalidate the certificate of election. But the House confined itself to analyzing whether McCreery met the standard required of him by the Federal Constitution, ignoring the Maryland law's 7-year residency requirement. McCreery was over 25 years of age, a citizen of the United States, and a current resident of Maryland, so he got seated.

This led the Powell Court to rule that Congress' only valid inquiry as to whether Powell could be seated or not was to determine that Powell was indeed over 25 years of age, a citizen of the United States, and a resident of the state of New York. The House could be the final judge of that, but since all the parties agreed that he was, the Court ruled that Powell was entitled to his seat:

... analysis of the "textual commitment" under Art. I, § 5 (see Part VI, B(1)), has demonstrated that, in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Now, there is no doubt that Senator-Designate Burris meets the Constitutional standards set forth in Article I, § 3 for eligibility to membership in the Senate. Rod Blagojevich is, as of this moment, the Governor of Illinois -- he might soon be impeached and removed from office, but that hasn't happened yet. There is a vacancy in Illinois' Senate delegation caused by the elevation of Illinois' junior Senator to the Presidency; Barack Obama cannot hold both offices at once. The Seventeenth Amendment to the Constitution provides that a state may authorize a Governor to make temporary appointments to the Senate until the next election cycle rolls around and a special election can be held, and Illinois (like most if not all of the States) has indeed passed such a law and failed to repeal it in the face of the Blagojevich scandal. So Powell makes very clear that Blagojevich's appointment of Burris compels the Senate to seat him. Q.E.D.

That means that Reid has no option but to seat Burris, and then if he wants to make his point, he needs to muster sixty-five other votes to expel Burris after seating him -- and as noted above, there is no evidence that Burris himself is complicit in Blagojevich's corruption and he seems to be otherwise well-qualified for the position.

Blagojevich may well be a corrupt bastard. He might wind up with a new career in road sign manufacturing. He is apparently an arrogant bastard, too. But he is the Governor of Illinois and he appears to have pulled off a fait accompli. Congratulations, Senator-Designate Burris. And good luck facing the voters of Illinois in 2010.

New Year's Predictions

We’ll revisit this post in a year. Here are some things that I will be looking for in 2009:

1. The United States Federal deficit for calendar year 2009 will exceed $1.5 trillion.
2. A human being will be cloned.
3. There will be serious attempts at coups in two of the following: Morocco, Boliva, Colombia, Ethiopia, or Pakistan.
4. GDP for the United States will decline for at least three of the four quarters in CY 2009.
5. California will endure a shutdown of all non-essential state government functions, and then increase state taxes.
6. Neither the United States nor Israel will participate in an overt military attack against Iran.
7. Britney Spears will "find Jesus" and make a spectacle of displaying her newfound piety.*
8. At least once in 2009, it will take two U.S. dollars to buy one Euro.
9. Watchmen will gross over $1 billion, including its timed-for-Christmas DVD release. However, a movie called Public Enemies will get tons of hype but lose money in theatrical release, as its cast of hot young stars fails to excite audiences about crime in the 1930’s.
10. UK Prime Minister Gordon Brown will survive a no-confidence vote.
11. The Detroit Lions will use their #1 overall draft pick to select Oklahoma quarterback Sam Bradford rather than the strong, fast DLB that they really need.
12. General Motors will file for Chapter 11 bankruptcy protection.
13. The United States will abandon plans to re-invigorate its space program with supra-orbital manned missions.
14. Over vitriolic but ineffectual Republican opposition, Congress will pass a “carbon tax.”
15. Barack Obama will name at least one Justice to the Supreme Court of the United States.
16. The average U.S. price for a gallon of 87-octane unleaded gasoline in CY 2009 will be under $2.50 a gallon.

Your predictions are welcome also. Best batting average over 50% gets bragging rights for 2010.

* Yes, I remember that I predicted that this would happen in 2008 and it hasn't. But mark my words, it's going to happen and it'll happen soon.

A Lesson In Discrimination Law

Howard Friedman has found a terrific set of twinned cases that makes extraordinarily clear the reason why some of the scare advertisements used in favor of Proposition 8 -- "If we have gay marriage, churches are going to be sued" -- found purchase with the public, and why the churches could defend themselves from the litigation cheaply and easily, giving lie to the scare.

Normally, "twinned cases" are hard to find. To get them, you need to have fact patterns in the two cases that are completely identical but for one difference, and that one difference has to be dispositive. By "dispositive," I mean that a single difference in fact produces a different result. To get there, with identical facts, you would look for two plaintiffs suing the same defendant for the same thing. That's what Prof. Friedman has found.

Now, they aren't two lawsuits pursued to judgment, unfortunately, so they aren't binding authority -- but they do provide a good insight into how discrimination cases work. What we've got are two findings after investigation into administrative charges of discrimination.

So the first lesson is that someone who claims to be the victim of discrimination cannot immediately walk into court and file a successful lawsuit. They must present their charge to a state or federal agency for investigation first, and that agency has to investigate and decide if there's any merit. So there's a "screen" on cases like these.

Now, to the cases themselves. In Bernstein v. Ocean Grove Camp Meeting Association, a lesbian couple wanted to perform a civil union ceremony at a beachside facility owned and operated by a Lutheran faith organization (it appears to not be a church per se, but it affiliates and identifies with Lutheran Christianity). The New Jersey agency investigating the complaint found probable cause to permit the charge of discrimination proceed. But, in Moore v. Ocean Grove Camp Meeting Association, another lesbian couple wanted to perform their civil union ceremony at the exact same facility. In that case, no probable cause was found. Both case results were announced on the same day -- yesterday.

Same facts, same defendant, same facility, decided on the same day, but different results.

What was the difference? In Bernstein, the investigation found that the religious organization that owned the facility rented it out to pretty much anyone who asked to use it, and paid a usage fee. It was used by the Lutheran churches that were members of the organization without fee and with priority for use, but if it wasn't being used at that time, a Catholic group or a Baptist group or a non-religious youth group could use it too. It was rented out for weddings, awards ceremonies, social events, and a whole bunch of other things. This made it a "public accommodation" under the New Jersey law, and therefore subject to the anti-discrimination laws.

After Ms. Bernstein and her partner applied and started causing a stink, the organization changed its policy for use of the facility. Instead of making the facility available to anyone, its use was restricted to only the churches that were the members of the organization. They stopped holding weddings there altogether. So in the Moore case, the facts showed that the facility was private, not public. Since it had become a truly private facility, it was not a "public accommodation" and therefore beyond the scope of the anti-discrimination laws.

So there is the second lesson about the law of discrimination. You are subject to the requirements of non-discrimination only if you are engaged in something called a "public accommodation." So if you don't want same-sex wedding ceremonies in your church, don't rent your church out to people who are not members of your church's congregation.

That's both the scare and the lie behind the anti-SSM propaganda. When the church stops being a church and starts being a banquet hall, then yes, it is vulnerable to a discrimination lawsuit because it's not acting like a church anymore. The message to churches that are opposed to same sex marriages is "stay true to your faith and the law will be on your side."

Now, there is a third lesson. In the Bernstein case, the Lutheran organization invoked two Constitutional rights -- freedom of expressive association, and the free exercise right. Freedom of expressive association is discussed with the relatively recent case of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557. In Hurley, a group of war veterans authorized by the City of Boston to administer and run a St. Patrick's Day parade denied a homosexual advocacy group's application to march in the parade. The Supreme Court said that was okay, because the organizers of the event were entitled to express themselves under the First Amendment by showing what groups they would associate with and thus by extension, what groups they would not associate with. Including the gay group would alter the message of the parade. The gay group had ample opportunity to hold its own parade and otherwise express itself.

So why didn't Hurley apply to the Bernstein scenario? Because the owning organization was not using its beachside facility as a place of worship -- they were making it available to the general public, including those who did not worship as they did. The facility did not exist to issue a message or a statement to the world -- it was open to the public:

All members of the public are invited to travel through the pavilion, whether to rest, eat ice cream, engage in private conversation or to pray. Until it stopped allowing couples to have wedding ceremonies performed there, the Pavilion was leased to couples of all faiths – or of no religious faith – and no regard was given to whether the person performing the ceremony did so by religious or secular authority. * * * [T]he Boardwalk Pavilion is not a place that is inherently dedicated to religious worship.
Bernstein opinion, pages 10 & 11.

Once you understand that, it's easy to see why the claim of free exercise doesn't apply, too. This was not a place where a particular religion was being practiced in a particular way. Yes, it happened to be owned by groups that practiced a particular religion in a particular way and they did sometimes use it for that purpose. But they also made it available to people who practiced different religions in different ways. It was not a house of worship -- it was space for rent.

And once the facility did become dedicated to strictly religious use, the rules changed. So, Ms. Moore and her partner were out of luck -- you can't just walk into someone else's church and tell them what to believe and how to act, because a church is not a public accommodation. When you are dealing with the general public, you are engaged in commercial activity and your business is subject to regulation as such. But when you get out of the business of selling a service to the general public, your Constitutional rights are back in play because you're not engaged in commerce.

That's the third lesson -- commercial activity does not enjoy the same level of Constitutional protection as expressive activity. The right in question for commercial activity is your right to own and use property, and the only restriction on the government's ability to regulate that right is that your property cannot be completely taken away from you without some kind of compensation. That does not mean that your use of the property cannot be regulated to a reasonable degree -- you might own land, but you are subject to zoning laws, for instance, so you can't demolish your own house and open up a pit mine in the middle of a residential neighborhood.

Now, a strong libertarian would object to that conclusion. If I can't engage in pit-mining on "my" property, and I have to ask my neighbors or my city for permission before I do something like that, then I don't really "own" the land. But we do not live in a strongly libertarian society; we live in a moderately libertarian one. No right is absolute, all rights are checked and balanced against the rights of others. Your neighbors didn't buy their houses so they could live next to an open-pit mining operation. Your conversion of your house to a pit mine will cause danger to the stability of your neighbors' houses, and it will detract from their property values, and even if you pay them money for those things to compensate them, it's not the same thing as getting what they bought when they moved in.

You can invoke your rights, I can invoke my rights, but at some point, those rights will conflict and when they do, someone has to balance them and decide whose rights prevail. This is the fundamental problem of living in a free society -- eventually, people exercising their freedoms are going to have conflicts. That's why we need a government with sufficient power to sort these things out. That government has to include some kind of body that makes laws trying to prioritize rights in advance (we call it a "legislature") and it has to include some kind of body that decides particular cases (we call those "courts").

In the case of discrimination law, the third lesson here is that when you stop exercising one kind of right (religion) and start exercising another (property), you have moved from one set of rules into another, which is why the cases turn out differently.

UPDATE: Another post linking here provides an excellent and deeper factual background to the cases than I do above. Thanks also to Popehat for a nice link and warm words.

Obama's Religious Inauguration

Some of you Readers may be surprised at this opinion coming from me. But here it is.

If Barack Obama wants to take his oath as President and add on the words "So help me God," I'm totally cool with that. If he wants to have a preacher give an invocation at his inauguration ceremony, I'm totally cool with that, too. He can have twenty preachers, ministers, priests, rabbis, imams, whatever.

I'd prefer that he didn't, but it's his party and he can pray if he wants to.

The only official part of the inauguration, as I see it, is the administration of the Constitutionally-mandated oath of office. Article II, section 1, requires that before assuming office, Obama say the following: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." That's it. No one has suggested that he is not going to say those words, and of course he will.

But Obama can say other stuff, too, as long as he says the Constitutionally-required words, at or around noon, on January 20, 2009. If one of those other things he wants to say are the words "so help me God," well, the man is both a Christian and a politician, and he's entitled to barter for political advantage on his religion if he chooses to. He hasn't promised not to do so, although I think he should (see last night's post). He doesn't give up his First Amendment rights to say what he wishes, or to worship (or not) as he chooses, upon assuming the highest office in the land.

President Obama probably will give a speech after taking the oath of office. But he doesn't have to. That's a political choice he's making. He can let President Bush say a few words if he wants to -- whatever his other faults you may wish to point out, Bush is a very gracious man and I'm quite confident that if offered the chance to speak at Obama's inauguration, Bush would say only nice things about Obama. But at the same time, he can hardly expect to be given a platform; it's not his party, it's not his political theater. It's Obama's, and Obama gets to script it exactly as he pleases.

Obama can have a ceremony around his taking the oath if he wants. But he doesn't have to. Again, that's a political choice. The ceremony will be designed to Obama's political advantage because he's the one calling the shots now. Thus it has ever been with ceremonies and rituals designed to commemorate political events. This ceremony is, in some ways, the endgame to Obama's political campaign.

And this particular ceremony is largely being paid for with corporate dollars and campaign funds -- not public money. Public funds are being used to pay for the security and the motorcade so Obama can take the oath the Constitution requires him to take. It will cost the same amount of public money if he includes the religious stuff or if he does not. But the bulk of the ceremony and celebrations surrounding the inauguration are paid for privately, and private people and private corporations can do what they want with their money, and that includes underwriting religious expression if they choose to do it.

Many Presidents have sworn the oath and assumed office without the benefit of the pomp and circumstance of an inaugural address and a bunch of fancy parties. Every Vice-President who has taken office because of a vacancy in the top spot has done so without an inauguration ceremony any more elaborate than having someone witness him saying it -- it doesn't have to be the Chief Justice of the United States Supreme Court. Lyndon B. Johnson was administered the oath of office by his father, on an airplane flying to Washington immediately after President Kennedy's death. The airplane therefore became known by the call sign "Air Force One" in mid-flight, which would be kind of cool, if it weren't for the terrible circumstances in which it happened.

The Constitution allows the new President can say "swear" or "affirm," as he chooses. Seems to me that a new President should say "swear," and a re-elected President beginning his second term should say "affirm," because he's already sworn the oath once before and he's still operating under the burden of that first oath. As far as I can tell, the only President to use the word "affirm" in his oath was Martin Van Buren, and he figured that he was "affirming" the oath he took upon assuming the office of the Vice Presidency. The choice of "swear" or "affirm" is a political one.

The new President doesn't need to swear on a Bible or any other book. John Quincy Adams refused to use any book at all, he just held up his right hand to indicate that he was taking an oath. Technically, the new President doesn't even need to raise his right hand, he just needs to say the words set forth in the Constitution.

But it's all a political ceremony, not an official governmental action. No one is required to participate, public money is not used to pay for it, and the ritual carries no legal significance. And that's the reason I'm cool with it having religious elements.

In some cases, we're required to use money that invokes God. Schoolchildren and teachers are required to recite the Pledge of Allegiance. The motto "In God We Trust" is endorsed on our behalf. Tax dollars are used to subsidize the activities of particular churches. Those are matters about which we have no choice, matters in which our behavior is compelled by the law. Those are matters to which I object.

But throwing a party to honor the new President, with private funds? That's something else. I'm not required to do, or more importantly pay for, anything at all (at least, not that I wouldn't have to pay for anyway, even if the oath ceremony were 100% secular). No one is making me worship God by virtue of Obama doing it. So just like I don't have any beef with it if the Obamas say grace before their meals, I don't mind if he says a prayer or has someone else say a prayer for him at his own party.

The Pledge

My fellow unbelievers, if you didn't like it when the Republicans in power used you as whipping boys, you're not going to like it when the Democrats in power do the same thing. And they are not only able, but willing to do so -- as this video from the Secular Coalition of America demonstrates. Note how it dispenses criticism at both parties, but puts heavier focus on atheophobia exhibited by Democrats:

What Liddy Dole did was to say "Don't vote for Kay Hagan, because she likes atheists." Hagan said back, "Liddy Dole is a liar -- I don't like atheists." Substitute "Jews" for "atheists" and you'll see right away why the whole thing is offensive and both sides come out smelling bad.

Fact of the matter is, religious beliefs ought to be considered to be, and in fact truly are, utterly irrelevant to a candidate's qualifications for any kind of political office. Which is why the Constitution prohibits religious tests for holding public office, and why it's obnoxious to create de facto religious tests as part of the campaigning process.

So let me make this suggestion. Candidates for political office should take the following pledge:

I promise, in conducting my campaign and in serving my term of service if elected, to not exploit anyone's beliefs about religion, including my own, for political advantage, and to condemn any other candidate or officeholder who does so.

Simple enough, right? But how many political candidates would be willing to take and stick to that pledge?

Breakup Of United States Imminent

Six countries where before there was one? That's what a Russian political scientist says is a little bit more likely than not to happen in the next twenty-four months.

My initial reaction is, "This guy doesn't understand much about American political culture." After all, there is a lot more that unites us than divides us. Californians are distrusted somewhat outside of California, both Texans and New Yorkers are thought to be boorish and pushy (in somewhat different ways) by a lot of Americans; and so on. But there's no doubt that we're all still Americans and we consider one another to be Americans. We root for the same ball teams that play one another and visit in other parts of the country. We are all more amused than perturbed by the local differences in food and speech patterns we exhibit.

Still, to the outside world, we've done a poor job of demonstrating our unity recently. We've had two Presidential elections that all seemed to be very close, and indeed the most recent one was very close until near the end. Before that, we seemed to have more than a dozen of our leaders and prominent citizens vying for the top job with no clear way to decide who it would be. Our political dialogue is marked by specimens of both sides of the spectrum who exhibit remarkably intemperate and intolerant speech. And there is some degree of regional clustering of patterns of thought -- the south and the midwest contrast with the Atlantic seaboard and the west coast. And the outright whining of Southerners that Barack Obama has been slow to name people from the Southern states to his Cabinet was quite unseemly.

Further, I myself have envisioned a deteriorating union in the country. I contemplated writing a story set in a future United States of America, some time in the mid-2050's, in which the Federal government was significantly weakened in power and various states had banded together in regional governmental compacts. My idea was for the South to secede again, this time based not on the idea of preserving slavery and its incident economic system, but rather because of the desire of Southerners to re-found their new country as an explicitly "Christian" nation, and have violence break out with elements in the other regional governments wanting to join the new Christian States of America. I gave up the idea because it quickly became too didactic, bureaucratic, and preachy.

But it also became more and more implausible as I ventured into the thought experiment. Even if people wanted to break away -- and the central government, which is still quite strong enough to enforce the no-secession rule that has prevailed since 1865 -- it seemed to me that no one would profit from spinning the country off into regional subdivisions. We're stronger and richer together than we are apart, and what's more, there is broad recognition and acceptance of that fact.

Now, if this Russian dude were to say that we'd be better off fragmented into smaller countries, that would be one thing. But he laments the spectre of a disunited America. (Which doesn't stop him from really wanting Alaska back.*) He recognizes that a dissolved America would be bad for Russia and destabilizing for the geopolitical balance of power. And he's absolutely right. While the world is moving towards a multi-polar economic and military model, a globalized version of what used to be called the Concert of Europe, the U.S. still has a leadership role to play in that world. Perhaps that role will be something more like "first among equals" than as the nation-state on top of the hierarchy. But that's not an entirely bad thing anyway.

But no, I think this is so much wishful thinking. And more than a little bit of projection. Other nations, with a less resiliant kind of nationalism than we have, might have faced internal violence over the political, social, religious, and economic tensions that we deal with all the time and have dealt with in sharp relief over recent years. But we Americans are made of different stuff. Our mythology involves submitting to democracy (I really wanted Prop. 8 to fail, but you don't see me throwing any Molotov cocktails because it passed), a commitment to the rule of law, and a commitment to be part of a common culture based on Western Europe and more particularly Engliand, but upon which we have amalgamated all sorts of things that our many immigrants have brought with them to our shores. Maybe Russia couldn't handle that without at least violence; maybe the USSR couldn't handle very strong economic pressures without breaking up. But America is different than that.

E pluribus unum. We really mean it.


* "Губернатор, почему вы квалифицированных быть президентом Российской Федерации?" "Поскольку я вижу Америку из моего дома!"

Is Caroline Kennedy Qualified To Be A United States Senator?

Apparently, 52% of Americans think so. They are, of course, correct. Article I, Section 3 of the Constitution says: "No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." Ms. Kennedy is over the age of 30 years, has been a citizen of the United States for her entire life (or so she claims) and she is presently an inhabitant of the State of New York. Thus, she is qualified for the job.

The question is whether she has adequate experience and abilities to do the job of serving in the highest legislative body in the land. The linked article contains some blather about how men look at a candidate's resume and women look at a candidate's life experiences. Yeah, yeah. I guess I'm guilty of being "male," then, in that I'd be looking for something more than "attorney" as a qualifier for high office and I discount that to a large degree because I know what it means to be an attorney.

The practice of law is a fine starting-off point for a political career, but litigation is not the same thing as legislating. There's more deliberation and compromising; when you have a disagreement that can't be resolved in a lawsuit, you always have the option of trying the case or asking the judge, but the mechanisms for resolving irreconcilable disputes in a legislative body are very different. I'd be happier with her if she had taken a few steps along the cursus honorum other politicians often do first -- serving some time in the House of Representatives, or in the New York state legislature, or being the mayor of her home town, for instance. It would feel more like she's earned the office instead of simply taking the seat because it once was held by her dead uncle.

I was told that on the George Stephanopholous show this weekend, a bunch of moderate liberal journalists -- the second-stringers for that show while the heavy hitters are enjoying holiday vacations -- sat around the whole time and agreed with one another about what a good pick Kennedy would be and how she's exciting Democrats the way Sarah Palin excited Republicans. I think the comparison between Caroline Kennedy and Sarah Palin is unfair -- to Palin. Gov. Palin has at least been elected to a significant public office. Ms. Kennedy is exciting apparently for little other reason than her lineage -- maybe she gives a decent speech, but surely there are other intelligent, articulate Democrats in New York than she who can give a speech and look good on camera. I still don't know what she's bringing to the table.

As I wrote a few days ago, a lengthy political pedigree should be a negative -- not a disqualifier, but a negative -- when considering a candidate for high elective office in a republican democracy such as ours. We have rejected the concept of an aristocracy, and annointing a presumptive aristocrat for no other reason than her aristocratic background is somewhat offensive. I was going to rejoice about the incoming Obama Administration that for the first time in my adult life, there would be a White House without any Bushes or Clintons in it -- until I remembered who Obama picked to be his Secretary of State.

But the thing of it is, it's David Paterson's choice. Paterson is a caretaker Governor who really owes no favors to anyone. He can go along with the prevailing wisdom that it's Kennedy or no one, or he can pick someone (well, a Democrat) from clear out of the blue and see what happens. I'd kind of like to see that happen, to 1) throw a monkey wrench into things, and 2) to strike a blow against aristocracy in America.

Calling Captain Obvious

Guess what? "Virginity pledges," in which teenagers vow to not engage in sex until they are married, do not work. Teenagers who take such pledges are just as likely to engage in premarital sex than those who do not. Teenagers who take such pledges are less likely than their non-pledging counterparts to use some form of contraception when they do have sex, and therefore are more likely to end up pregnant than those who do not.

Why this outcome to the social experiment of relying on teenagers' willpower should be a surprise to anyone, anyone at all, is a mystery to me. The teenagers take the pledges in order to please their parents, not necessarily because they really mean it. The "virginity pledge" exists to provide a tissue of control for parents who are fundamentally unable to exercise actual control over their teenagers' activities -- just like "purity balls." All parents can really do is talk honestly about sex with their kids when they're entering puberty, train them to make good choices, and hope for the best. Easy for me to say; I don't have kids.

What must be even worse for parents is knowing that despite their parents' best efforts, some kids are going to make poor choices anyway, and then have to confront the consequences of those choices. But relying on "virginity pledges," "purity balls," religious-based lecturing, and deliberately keeping kids ignorant falls short of even that standard. That's the "ostrich strategy," and its success rate cannot plausibly be imagined to be better than doing nothing at all.

Gaza Attacks

A depressingly-familiary story -- with the breaking of the southern cease-fire by the Gaza faction of Hamas, Israel has responded by shelling locations where the Hamas attackers have been shooting rockets over the border. Innocent civilians have died on both sides. This gives both international critics of Israel, and international critics of Palestine, platforms upon which to base their attacks. It also shores up Hamas' political base among Palestinian constituents and rallies the Israeli public around the Kadima party. Everybody wins except for the people whose homes are blown up or whose loved ones die.

It's not clear to me what the counter-attacks are going to do. Weapons technology has advanced to the point that some of the rockets Hamas is using can be made from spare parts and all that has to be smuggled in to Gaza are the warheads and the fuel. Precision targeting is not high on the attackers' list of priorities. So as a functional matter, Israel will never take away Hamas' ability to initiate these kinds of attacks.

But it's a good questions as to what else Israel can do about them. This is an act of war by one state actor on another. Doing nothing is not an option. Why? To move people and other targets out of range would be to effectively cede territory to the Palestinian Authority (Gaza Strip division), which would advance and place new rocket-launching loci further along their path of advance. So the attacks must be responded to in some way.

Israel's critics have pointed out that the counter-attacks have hurt lots of people who are not involved in the attacks. The reason for this is Hamas' insistence upon launching the attacks from the middle of crowded civilian population centers. And it is in the nature of war that innocent civilians suffer -- and indeed, they often suffer disproportionately to the warriors when the war is fought in their own neighborhoods. Military technology is not sufficiently advanced to allow for utlra-surgical remote strikes that could kill only the rocket launchers themselves and not the civilians in whose midst they have planted themselves.

Is all of this intended to be a moral pass to Israel? Yeah, it is. The difference is that Hamas fires indiscriminately into Israeli territory, not caring who they hit. Their intent is to provoke a reaction from Israel, and a civilian victim is every bit as effective as a military victim for that purpose. Israel's responsive strikes are at least targeting the Hamas attackers, who in turn lack the decency to fire from somewhere that military activities are isolated from civilians. Israel is not lily-white and totally without blame. But it's on the moral upside of this issue. May the violence end soon.

Things About Which I Must Exercise Restraint

#22 on the list: See's Candy peanut brittle. The Wife gave me a box of it for the holiday. It's thick, sweet, nutty, and utterly delicious. Resistance is futile. Moderation may be possible.

Thank you, sweetie!

Green Bay Wins

Perfection has been achieved at last. Nothing can stand between Detroit and the #1 draft pick now. Missed in all the coverage of the abysmal result for the Lions is the fact that Aaron Rodgers had a damn good game: 21-31, with 308 yards, 3 TD's and a rating of 132.2. Granted that was against a not-exactly-impressive defense. All for naught, of course, since my mother-in-law's Minnesota Vikings will be going to the playoffs instead of Green Bay.

But the next time you think you're engaged in a mighty effort, realizing only futility, frustration, and failure -- remember the 2008 Detroit Lions. This is a team of guys who have worked all their lives to play in the NFL, who distinguished themselves and proved themselves at every step along the way of a very competitive process, and managed to finally have a grab at the brass ring -- only to fall short of touching it, sixteen times in a row. Better luck next year, fellas.

Santayana And Monetary Policy

Just a quick note for today -- has anyone been watching the currency markets? Not very long ago, a dollar bought you .795 Euro. Today, it buys you .705 Euro. This has been more or less replicated across the globe. The dollar has fallen about 12% as compared to other world currencies over the past two weeks -- the British Pound, the Chinese Yuan, the Indian Rupee, even the Mexican Peso.

Why is that? Simple -- we have diluted the value of the U.S. Dollar through our government printing so damn much money (or, rather, issuing so much of it electronically, which is how things get done these days).

This is a measure of how bad economic conditions are relative to us. For instance, Japan has it nearly as bad as us so the U.S. Dollar has fallen only about 8% with respect to the Japanese Yen. Similarly, the Canadian Dollar has risen by only about 4% in that time against our south-of-the-border currency. But the Swiss Franc has risen against the U.S. Dollar fairly significantly, by nearly 20%.

I cannot recall a single time from my study of history in which a devaluation of currency has worked out well in either the short or long term for the nation-state that did it. I can think of lots of times that it worked out poorly -- the Roman and Chinese Empires of the second century, for instance. This lesson is repeated with almost no diverging case models from any phase of history, any stage of industrialization, or any set of socio-economic circumstances. It always leads to inflation. It always leads to diminishing government revenues. It always leads to a transfer of domestic economic power to foreign investors. Historians, economists, anyone with an interest in the issue -- I challenge you to find a single contrary example.

I'd get bitter at the Bush Administration for doing this. But the Obama Administration has given every indication that their people think the Bushies are to be faulted for not doing this enough. So this is going to get worse before it gets better. Good thing The Wife and I are not planning foreign travel for the foreseeable future. Maybe the Italians will finally be able to afford to come visit us.

How To Survive Throwing Yourself On A Live Grenade

In February of this year, Lance Corporal Matthew Croucher, H.M. Royal Marines, was assigned with the rest of his unit to Afghanistan. While out on a raid on a Taliban compound, he felt a wire move against his leg and heard something drop right ahead of him. Realizing that he'd just set off a tripwire and activated a grenade, he threw himself forward to put his body in between the explosive and his three buddies.

Thinking quickly, he twisted in midair and landed with his back on the grenade. His rucksack took the main force of the blow when the grenade exploded. Croucher was thrown across the compound. Despite a profusely bloody nose and hearing loss, "the 24-year-old Marine survived and within minutes was on his feet, refusing evacuation and demanding to be allowed to stay with the patrol. He helped set an ambush and shot dead a Taliban insurgent in the ensuing gunfight."

Shrapnel was embedded in his body armor and helmet. His rucksack did not fare so well.

Croucher is to be awarded the George Cross, which is the equivalent of the Victoria Cross, the highest award possible, for "acts of the greatest heroism or of the most conspicuous courage in circumstances of extreme danger." His citation will read:

Lance Corporal Matthew Croucher showed extraordinary bravery, self-sacrifice and devotion to duty. He acted to save his comrades in the almost certain knowledge that he would not himself survive. His exemplary behaviour and supreme heroism are fully deserving of the nation's highest recognition.

The only reason he is not being awarded the technically-higher award of the Victoria Cross is that there were no enemies present. While admittedly less prestigious, Croucher also earns this blog's highest award for bravery and remarkable achievement.

An Easy Question

A candidate for the Republican National Committee circulated to his friends a CD of political parody songs, including one entitled "Barack The Magic Negro." While noting that on more than one occasion, people on the left side of the aisle have cried "racist" to anything that right-wingers do that even mentions race, Rick Moran asks the question, "Is this racist?"

Yes. Yes, it is.

Next caller!

Quis Didtiet Ipsos Custodes?

The answer to the question, as we now know, is "Fox, not Warner Brothers." In a summary judgment ruling on the issue of who owns the distribution rights for the movie Watchmen, the U.S. District Court for the Central District of California ruled that Fox and not Warner Brothers owned at minimum the right to distribute this sure-to-be-profitable movie.

Watchmen is one of the most-anticipated movies of 2009. It is based on the landmark graphic novel by Alan Moore and Dave Gibbons, who also re-spun the Batman character into the darker, brooding form he is known by today. But Watchmen is what started the whole "comic books for grownups" thing -- and it really does tear down and deconstruct the whole genre of comic books and superheroes, as surely as the movie Unforgiven did to the western movie.

I just re-read Watchmen after seeing the really good trailer and was reminded of how really great it was. Apparently the movie is cut to two and a half hours long and is, with some labor, as close to true-to-the-book as can be done. (After re-reading it, I can understand how it was thought by many to be "unfilmable.") That is longer than most distributors like to have movies cut for. Now, the Lord of the Rings movies proved that people will sit through a 150-minute movie, and go back to see it again and again. But they'll only do that if it's really good.

Fox is, I hope, intelligent enough to leave a good movie alone. I can only hope that Watchmen is good, that it has a good script to back up what appear to be superb visuals. But at this point, I can only hope that the movie gets distributed at all.

And, Readers, if you haven't read Watchmen yet, I recommend it. It's not like anything you've ever read before, or since, and it holds up just as well now as it did twenty years ago when I first read it.

George W. Bush's Christmas Present To Con Law Geeks

The President pardoned some dude of white collar crime. Then, after the media pointed out that this dude's relatives poured phat cash into the GOP machinery while the pardon application was pending, the President decided he didn't like how that left him looking.

So he revoked the pardon. That left everyone who was paying attention saying, "Can he even do that?"

The Constitution itself provides no answer. Article 2, Section 2 says that the President "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." It is silent on the issue of revoking those pardons.

There's three cases to take note of that the scholars have found. The first is everyone's favorite Con Law case, Marbury v. Madison (1803) 5 U.S. 137. That case had to do with whether the Secretary of State had discretion to not deliver a fully-executed appointment to a judge after a change in Presidential administrations. President Adams appointed Marbury to a judgeship, and then President Jefferson took office and instructed his Secretary of State, James Madison, to withhold the delivery of the appointment. The Supreme Court ruled that indeed, Marbury had a right to delivery of the commission and the courts could fashion a remedy requiring Madison to deliver it. Famously, the Marbury Court went on to say that the law Marbury had tried to sue Madison on was unconstitutional because it purported to change the Supreme Court's original jurisdiction, and therefore Marbury had to start over in the right court, which snatched a larger victory out of the jaws of defeat for the Federalists and created a system of judicial review that survives to this day in our legal system. But the point applicable here is that Marbury had a legal right to delivery of the commission.

Now, Chief Justice Marshall, who wrote the opinion in the Marbury case, later in his career looked directly at the pardon power in the case of U.S. v. Wilson (1833) 32 U.S. 150, 161. Here, Marshall wrote:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Now, this suggests that a pardon might be treated differently than an appointment, and a pardonee might not have the same right to delivery of the pardon as an appointee.

Why on earth, you might ask, would a recipient of a Presidential pardon reject it? Two reasons suggest themselves. First, the pardonee might view accepting the pardon as admitting that he committed the underlying crime. By accepting the pardon, he is admitting guilt, and he might wish to do something to prove his actual innocence. Second, a pardon can be conditional, and the pardonee might reject the conditions. For instance, the pardon might be conditioned upon the issuance of an apology, or restitution, or a commitment to do something or give something up.

This was exactly the case in the cae of In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869). In that case, President Andrew Johnson pardoned a prisoner of tampering with the mail on March 3, 1869, and President Grant then took office and revoked the pardon on March 6, 1869. The De Puy Court held that the pardon had been properly withdrawn, because on March 6, neither De Puy, his attorney, nor the warden of the prison had received it.

In my mind, the De Puy case seems to govern here. If Bush's pardonee (convicted mail defrauder and perjurer Isaac Robert Toussie) had not received the pardon, then the President can revoke it and it's as if no pardon had ever been issued. What's interesting is that it's pretty clear that Toussie, or at least his attorney and the warden of the prison, knew of the pardon, because it was both on the national news and part of the public record that, in today's day and age, gets posted on the Internet immediately after it is done. And in this case, Toussie had applied for a pardon using the standardized process created by statute and long-standing executive order to handle these things, so having asked for the pardon, we can hardly infer a possibility that he would have rejected it.

Now, it's still not clear exactly how far the paperwork got. It appears that Bush put Toussie's name, along with some other people he was pardoning, on a Grand Warrant to the Pardon Attorney, who is a functionary of the Executive -- meaning, particularly under Bush's "unitary executive" theory, that the Pardon Attorney is an extension of the office of the President. That would mean that execution and delivery of the warrant of pardon is a purely ministerial act. If so, how much significance do we want to attach to that purely ministerial act?

When I volunteer my time and serve as a pro tem judge, I have the power to change my mind about an order that I make. Sometimes a clerk points out that a ruling I make is beynd my statutory authority or I learn some fact about a case that changes my mind about an issue -- I have the power to issue a new order nunc pro tunc -- "nunc pro tunc" being law-Latin for "voids the prior, contradictory order, as though it had never been made." If the earlier order has not yet been executed, it's a no-harm, no-foul kind of situation. "Real" judges have the power to void their prior orders nunc pro tunc, too.

So here's the alternatives. On the one hand, we can say that once the President himself says "I pardon this guy," the moment he says that everything else is simply a matter of mechanically giving effect to the President's order, which means that once the President says it, it's done. On the other hand, we can say that the President has the ability to reverse himself nunc pro tunc or something akin to that, given that he is operating in a checks-and-balances role against the judicial branch of the government.

I tend to favor the second school of thought. If the pardon has not been mechanically completed, then the President can change his mind (or be replaced by a successor, who might revoke the pardon). This has the disadvantage of leaving significance with certain ritualized or bureaucratic functions of the government before an order takes effect, producing a slower-moving government. But on the other hand, it is unreasonable to presume that the government's orders and actions are instantaneous. The point here is that the Presdient is exercising one of his powers and he enjoys a degree of latitude in how he goes about doing that. If he does something and then decides that it was a poor idea, we want to give him the ability to change his mind and correct the situation -- and better that he does that on his own than another branch of government have to step in and correct him.

Toussie's knowledge that the President had authorized the pardon is irrelevant. I have a client who has been sued, but not yet served with a summons. The client knows full well that the lawsuit has been filed against him, because I downloaded it from the internet and showed it to him. But he hasn't been served with a summons, so he has no obligation to respond to the complaint. Same thing with Toussie -- he may have known that the President issued the pardon order, but until the processing of that order is complete, the pardon is not effective and therefore can be revoked.

So, sorry, Mr. Toussie, but I think that as things stand today, you have not been pardoned.

An Alternative To Torture For Field Investigators

As a further evidence that torture is unnecessary to achieve our foreign policy goals -- even the sub rosa gathering of intelligence about enemy movements -- I refer you Readers to this piece in today's WaPo. As it turns out, our agents could have captured an Afghan chieftan and tortured him for information about terrorist activities. He might have given up some information that we'd have had to use immediately and then would have turned against us permanently.

Instead, the CIA gave him boner pills.

Turns out, guys like getting boners. And when you get someone laid, they tend to think well of you. So here's a guy was sixty years old and thanks to us, he was able to romp with his wife again. He liked that and he knew full well that the Viagra was a drug, not magic, and that it came from America. But the bad guys can't give him boner pills. We can. Now, he will exchange information with the CIA for Viagra and he's more than happy to go along with that. And best of all, his conversion to our side isn't immediately obvious other than the silly grin on his face. As a long-term, willing source of information, he's a better asset than he would have been a captured torture victim.

Remember The Birth

On this day, hundreds of years ago, a baby boy was born.

His birth had been presaged by the passing of another great man, a great bringer of light to the world. But the people of the day scarcely noticed.

At first, he seemed like any other baby. Sometimes he cried, sometimes he ate, sometimes he smiled. The legend has it that he was unusually inquisitive even as a baby, but that did not really manifest itself until he had grown a bit.

As a little boy, he was precocious. Astonishingly smart for his age, he could ask questions about the world that stumped and astounded adults, starting with his teachers and religious guides.

When he became a young man, and ventured out into the world, he accomplished great things, things that changed the world forever. He gave us all a new way of looking at the universe, a new way of understanding how it worked. He gave us a new way to understand even very basic, fundamental ideas -- a better, more powerful way.

We all owe a tremendous debt to him. The gifts he left for us are beyond measure of worth or value; they have made the world we live in today a richer place, a more liveable world for us to inhabit. We can little appreciate the great revolution he brought about, one that lives on today in our minds so powerfully that we take for granted that which this man brought on the world.

He modestly said of himself and his achievements, "I do not know what I may appear to the world, but to myself I seem to have been only like a boy playing on the sea-shore, and diverting myself in now and then finding a smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay all undiscovered before me."

Let us all now take a moment to remember the coming of this extraordinary man:



Sir Isaac Newton was born on December 25, 1643, shortly after Galileo Galleli passed away in Italy. Newton invented the calculus, which is still the most powerful method available for advanced mathematics. Newton discerned laws of gravitation and motion which formed the basics of modern physics. Newton's work in optics are at the root of our modern understanding of quantum physics and you are using that science right now as you read this on your computer screen -- in a very real way, Sir Isaac is touching you right now. He was knighted for his work as Master of the Mint, and became President of the Royal Society, still one of the world's foremost bodies of scientific and humanistic thinking.

The dedicatory inscription on Newton's Monument in Westminster Abbey reads:

Here is buried Isaac Newton, Knight, who by a strength of mind almost divine, and mathematical principles peculiarly his own, explored the course and figures of the planets, the paths of comets, the tides of the sea, the dissimilarities in rays of light, and, what no other scholar has previously imagined, the properties of the colours thus produced. Diligent, sagacious and faithful, in his expositions of nature, antiquity and the holy Scriptures, he vindicated by his philosophy the majesty of God mighty and good, and expressed the simplicity of the Gospel in his manners. Mortals rejoice that there has existed such and so great an ornament of the human race! He was born on 25th December, 1642, and died on 20th March 1726/7.

Newton was himself a religious man, albeit with beliefs thought "eccentric" by his contemporaries and with serious inconsistencies pointed out by his great rival, Gottfried Leibniz. But he stands today as a symbol of reason, understanding, learning, and most of all, of science. Spare a thought for Sir Isaac today on what would have been his 366th birthday.

A Happy Ending To A Sad Story

Well, my dad did a feel-good post on his blog, and I felt inspired to match him. So when I stumbled across a story about whatever happened to Michael Vick's fighting dogs, I knew I had the right thing to which I could point my Readers.

I would have thought that having been trained to fight, Vick's dogs would have been ruined and would have to be destroyed. But fortunately, there are dog rescue organizations out there that adopt even fighting dogs and one of them stepped in and began to rehabilitate the dogs. Sports Illustrated has some wonderful photographs of the dogs with their new, loving owners, and they cement in my mind that there are no bad dogs, only bad dog keepers. When put in a good home, and with the right training, even pit bulls trained to fight can becom good companions. Here they are, along with the wonderful people who have taken them in:

Teedles -- adopted by Cindy Houser
Sweet Jasmine -- adopted by Catalina Stirling
Grace -- with by Tim Racer and Donna Reynolds, two officers of BAD RAP, who are currently screening a family for Grace to live with permanently
Audie -- adopted by Linda Chwistek and Bill Cook
Sweet Pea -- adopted by Michael Wilson
Zippy -- adopted by the Hernandez family
Uba -- adopted by Letti De Little and William the cat
Frodo -- placed with Kim Ramirez
Ernie -- placed with Andy and Sasha Gibbs
Jonny Justice -- adopted by the Differding family

BAD RAP is a dog adoption organization that focuses on pit bulls and other dogs bred and trained to fight, and rehabs them so that they become suitable companion dogs for families. They took in Michael Vick's dogs and have adopted them out, and the dogs have begun a blog of their own so you can follow their stories.

It's great to see the animals healthy and happy again, and in good homes with people who obviously love them. There is no artifice in a dog -- a dog will return ten times the love it is shown and dogs are never happier than when they're with a family that loves them. If these dogs can be rehabilitated and put with families, some with small kids, then that's proof enough that there are no bad dogs. There may be bad owners, but a good owner with smart guidance can make it all better.

Please consider adopting a rescue pet. Obviously, adopting a pit bull, particularly one rescued from a fighting ring, is not for everyone -- but don't let the "pit bull" label slow you down; I've known lots of pit bulls who were sweet, gentle animals. It can be easier than you think to take in a rescued animal into your family. The Wife and I did, four times, and we love our critters to pieces.

Environmental Disaster In Roane County

The Tennessee Valley Authority is the country's largest utility -- it generates electricity, regulates the Tennessee River, and is a huge employer. It also just got a huge black eye and gave a huge black eye to "clean coal."

Of course there is not and never was any such thing as "clean coal." Coal is a fossilized hydrocarbon which contains a variety of metals and organic compounds leached into the rock while it was forming over the course of aeons of subterranean pressure. It very commonly contains various kinds of sulfur and arsenic compounds, which are released into the air when the coal is burned. "Clean coal" is a way of burning the coal which generally leaves the contaminants in the ash and sludge left over after burning or occasionally in filters or scrubbers in the smokestacks. The TVA, the world's largest handler of "clean coal," handles this by mixing the ash with river water and letting it settle into sludge in the bottom of artificial ponds before draining the water into tributary rivers of the Tennessee.

Well, that process suffered a serious setback today in Harriman, a small city in Roane County, not all that far from where The Wife and I used to live, and not far from where my folks are moving away from The Estate At Louisville to seek better opportunities for themselves. The dam holding back these artificial ponds burst today and 2.6 million cubic yards of the sludge dumped out on the valley below, swamping the houses of the people unfortuante enough to have lived downstream from the ponds and to have relied on the assurances of the TVA that they were safe. Check out this video from the Nashville Tennessean:

Yuck! That one house is astonishing -- it's one of those nice big estate houses on the big farms that people own out in the country there. Now, it's buried up to the roof of the porch -- which on the downslope side of the house is probably something like fifteen to twenty feet from the ground -- in heavy metal-rich coal sludge. But the image of this flood of sludge, making its way all the way to the river and the drinking water of hundreds of thousands of Tennesseans, Georgians, and Alabamans -- is horrific. I hope they clean it up soon, but all indications are that this is the result of struggling and struggling will continue.

The Chicago Way

So it turns out that no one really doubts that Illinois Governor Rod Blagejovich was trying to sell the appointment to the U.S. Senate seate about to be vacated by President-Elect Obama. (Although note that he hasn't been convicted or even indicted yet.) The Obamamen are not even trying to defend Blagojevich; they aren't even invoking the "presumption of innocence" bromide. Blagojevich's actual guilt is neither questioned nor relevant. That's the Chicago way.

Now, Blagojevich's corruption in this matter is simply an assumed fact. Given that of the last fifteen Governors of Illinois, six have fallen under clouds of serious criminal conduct in office and four moved on to careers manufacturing license plates and small rocks, Blagejovich's conduct would be greeted with a massive yawn by an Illinois electorate that understands the need to put a little mustard on the hot dog of elective office. (But not ketchup, that's not the Chicago way.)

No, what's interesting has been the question of whether Rahm Emanuel, President-Elect Obama's designated chief of staff and the functional head of the transition office, coordinated efforts with Blagojevich to pick the new Senator. That would taint the President-Elect by association with Blagojevich's corruption. More interesting than that is if he did discuss the sale of the appointment with Blagojevich, was Emanuel or anyone else in the Obama circle scheduled to be cut in for a piece of the action? That would, after all, be the Chicago way.

But you can rest easy, Obama fans. The office of the President-Elect's transition team has conducted an internal investigation and concluded that Emanuel had no "inappropriate" contact with Gov. Blagojevich. Whew! I'm sure you're as relieved as I to know that an office headed by Emanuel, under the investigation of an attorney hand-selected by Emanuel, has indicated that Emanuel did nothing wrong. Now, we're gonna kind of have to take their word for it because they're not going to release the statements or documents uncovered in that investigation, and the lawyer's going to just keep those as part of his work product. But you can trust them. After all, waiting to see what the prosecutor has to say isn't really the Chicago way.

Jury Duty: It Can Get You Laid

In 2000, a defendant in a capital murder trial in Missouri was convicted. The jury had been sequestered, and one of the jurors complained to the judge that two of the other jurors had spent some time in sequestration having sex with one another. This is the basis for a defense motion to set aside the conviction. The argument is that the judge should have taken prophylactic measures to prevent this. A penetrating legal question, to be sure, as to whether one of the jurors should have withdrawn. Alas, it was not a hung jury. Tip your waitresses, folks, they're working hard out there for you.*

Another basis for the motion is that two sheriff's deputies who were guarding the sequestered jurors also had sex. What that has to do with anything is completely beyond me.

On a tangentially-related note, in 2003, a college student in New Jersey was murdered. The defendant was accused of ordering the murder. After having been convicted, the defendant's mother was, of course, very upset. She could not bring herself to believe that her son was guilty of the heinous crime. So she began stsalking the jurors and seduced one to get evidence of misconduct:

She gave herself an extreme makeover -- blonde dye job, fake tan, sexy wardrobe, phony name -- and began spying on jurors. ... [F]or nearly eight months, they drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway. ... [He told her] that he had personal knowledge that [the defendant] ran with a rough crowd.

A juror concealing personal knowledge of the defendant is potentially misconduct but it's far from clear that this would be prejudicial. It's one thing to "run with a rough crown" and it's something else to put a hit out on someone. And while the length to which the mother went to get this information is extraordinary, but it's difficult to say how reliable it is. Men have been known on occasion to attempt to get sex by telling women what they want to hear.

But the lesson is -- when you get that summons for jury duty, don't throw it in the trash. It just might be an Invitation To Love.


* Astonishingly bad jokes shamelessly lifted from the comments section at the Volokh Conspiracy. But an actual quote from the article: the defendant's "lawyer says her predecessor's didn't try hard enough." Okay, I'll stop now.

Io Saturnalia

Today marks the last day of the Roman holiday of Saturnalia, from which the modern Western European holiday of Christmas takes its descent. For three days beginning on the winter solstice, the masters of a household would serve the slaves, who would elect one of their number to be the Lord of Misrule. Men were subservient to women, slaves played at dice, and much wine was drunk and much sex was had by everyone.

Saturnalia was thought to serve an important moderating influence on Roman nobility -- because the slaves would be running the show for a while, the masters were reminded to be gentle and kind to them for the rest of the year. And giving the slaves a taste of the good life that they worked so hard the rest of the time to provide their masters was also thought be an important means of relief. It only ever went so far, of course; masters were always in charge and the disrespect shown to the masters was done with the same tongue-in-cheek tone of an actor at a theme restaraunt and no one was expected to take it seriously. The slaves still did all the real work; they prepared the food to be served at the dinner to themselves by their masters, and typically a good meal would be set aside for the masters in the kitchen.

Other customs included the exchange of gifts between friends and family members, feasting, public celebrations, and the worship of Saturn (who was the god of time and wealth). Later in Roman history, Saturnalia competed for attention with the festival of Sol Invictus, which took place on December 25 and adopted many of the customs of the Saturnalia, including the gift exchange and the day of leisure and feasting.

So Io Saturnalia to all you Readers; as a functional matter, we all still celebrate the holiday today despite the Christian gloss that has been placed over it. Also note that the conical red Phrygian caps worn during Saturnalia bear a startling resemblance to Santa caps worn today.

Rating The Vice Presidents

There's a poll that CNN is featuring prominently in which 23% of Americans say that Dick Cheney is the worst Vice President in American history. This is about the dumbest poll I've ever heard of.

First of all, bear in mind that in other polls looking at similar populations, only 69% of the people could name the Vice President at all. Also in a recent poll of all Americans about their beliefs, 44% of Americans believe in ghosts, 36% in UFOs, 31% in witches and astrology, and 24% believe that they are reincarnated. 47% believe in evolution, 40% believe in creationism, which leaves 13% who apparently believe in neither. So we're not talking about a particularly well-informed population responding to the poll here.

So then let's get down to the real issue here. What is it that distinguishes a good Vice President from a bad one? By what criteria are we to distinguish Charles Fairbanks from Levi Morton? For much of our history, the Vice President's job has consisted of waiting around for the President to die, accepting bribes, and staying sober enough to cast the occasional tie-breaking vote in the Senate.

This does not seem like a particularly difficult job. To a very real extent, then, a successful Vice President is one who does not die in office. Yet seven Vice Presidents have not found themselves up to the task of continuing to breathe for the amount of time demanded of them by the Constitution so as to be able to take over in the event of such a need. Aside from that, it's kind of hard to figure out how to rank the performance of these forty-six men in discharging the minimal and vague duties of such a peculiar office over more than two hundred years of history.

Vice President Cheney has done and said a lot of controversial things over the past eight and a half years. I'm very much not a big fan of his sweeping vision of nearly unchecked executive power. He has taken a very active hand in guiding the shape of our government's policy as a trusted advisor to the President. He's been abrasive with Congress and high-handed towards the rest of the government and at times even to the rest of the country. Which is to say, he can be a real tool when he wants to be.

At the same time, he's damned smart. He did a lot to streamline the bureaucracy and make the flow of information and commands into and out of the White House more efficient. He's been a strong advocate for beefing up the military and has been a significant architect of the Administration's policies both good and bad. He has quietly served as an example of tolerance for gays in a party that at times seemed to be building its social policy platform on prejudice. He has willingly taken on the job of spokesman for the Administration's more controversial policies and gone out of his way to maintain press contacts to assist with that purpose. For better or worse, he has been a powerful political and influential policy force within and for the Administration, and the Bush White House would likely have been worse off without him. So there's some things to admire, too, even if you disagree with the particular policies in question.

Now, I'm neither defending nor attacking the choice of Cheney as "worst Vice President ever." But it does seem to me that the poll respondents have not really taken stock of some of the other available choices. Some Vice Presidents have excelled at odiousness, distinguished themselves as some of the most repugnant figures in our national history.

Consider, for instance, Aaron Burr. After killing one of the most prominent members of George Washington's inner circle, Burr distinguished himself by trying to raise a private army to wrest control of the Louisiana Territory and the Ohio River Valley so as to have himself made King of those lands, then tried to incite war with Spain, and was only narrowly acquitted of treason. Burr stands out as one of the great villains of American history. Is Cheney better or worse than this?

Have the poll respondents considered convicted extortionist, alliteration specialist and admitted bribe recipient Spiro Agnew? The author of wonderful political assessments such as "Ultra-liberalism today translates into a whimpering isolationism in foreign policy, a mulish obstructionism in domestic policy, and a pusillanimous pussyfooting on the critical issue of law and order," Agnew added luster to the remarkable emergence of criminal records from the Nixon Administration.

John Calhoun spent much of his time in the #2 office (under two different Presidents) laying the intellectual foundation for the secession of the Confederacy, most specifically the doctrine of nullification. 'Nuff said there.

The first two Vice Presidents, John Adams and Thomas Jefferson, did not grace the office particularly well, either. Adams excelled in his role as the Washington Administration's official public surrogate for the President for purposes of absorbing policy criticisms, and compounded his role by periodically going to the Senate and attempting to control the debates there, not leaving until he was literally hooted out of the place by the actual office-holders. Jefferson, as Adams' Vice-President, spent as much time and effort as he could using his considerable political talents to undermine Adams' Presidency and thwart the policy goals of the Adams Administration -- of which he was nominally part.

Thomas Marshall probably should have become President when Woodrow Wilson had a stroke that rendered him paralyzed and unable to communicate with others. He was, however, kept in the dark about President Wilson's condition and for all intents and purposes, Edith Wilson was the functional President during Wilson's convalescence. Marshall should be faulted for allowing himself to be that far out of the loop, to have that few connections with the President, and that little juice that he could be shipped off to golf courses and chamber of commerce meetings instead of doing his job and taking the reins of the White House during the country's time of need.

And the Cheney critics appear very likely to have forgotten an even more recent favorite whipping boy.

Joe Biden has got his work cut out for him if he wants to sink to the bottom of this barrel, that's for sure.

But for the time being, the very concept of rating Vice Presidents is spectacularly silly. It's only in recent years that the Vice President has had much of an active role in government at all. Al Gore and Dick Cheney are the only two I can think of who actually were given any kind of substantial hand in crafting policy. The rest of them spent time doing ceremonial work, heading up token commissions, or at best, working the back channels with Congress. It's only when and if the Vice Presidents are called upon to step up to the plate and assume the powers of the Presidency that we can take their measure.

Gerald Ford pardoned Nixon (himself an undistinguished Vice President) and he took a political bullet for doing it. But it was the right thing to do, it let the country move past Watergate and the realization that their President had been not only a crook but a world-class criminal. A decent man, who realized that he had all kinds of odds stacked against him, he used his time in the Oval Office wisely and quickly and when it came time to pay the price, he took it like a man. But that's really evaluating his performance as President, not his performance as Vice President.

John Tyler may have succeeded in the greatest coup in American history. When his President, William Henry Harrison, became the first to die in office, a strong argument could have been made that because the Constitution only provided that if the President died, "the Powers and Duties of the [Presidency] shall devolve on the Vice President," Tyler had no right to say that he was actually the President. But he seemed to win out in the political struggle and finished the rest of Harrison's term. His example was precedent for the assumption of the Presidency by seven successors. It only became enshrined in the constitution in 1967 and fortunately, we have not had to resort to it since then. Does that make him a good Vice President or a bad one? He was only Vice President for a month, anyway.

I think that George H.W. Bush (Bush the Elder) did a good job as VP. When Reagan was shot, it looked for a few hours like Defense Secretary and Nixon Administration alumnus Al Haig was trying to cut Bush out of the picture and take the reins of power for himself. Bush bitch-slapped Haig back into place while President Reagan recuperated -- and then, when Reagan was back on his feet, Bush readily stepped back into the shadows.

I've always had a soft spot in my heart for Andrew Johnson, too. Here's a guy who made himself as lonely as a political figure could be -- a Democrat in a Republican administration, a pariah from his own party for his Unionist sympathy, and firmly insistent on the personal power of the Presidency against what was then an overreaching Congress. (I know, it seems hard to believe in today's world, but that's what Johnson had to deal with.) But as Vice President, he stepped up to the role of symbolically trying to reunify the nation, to reach out to the people who had fought against the Union and let them know that there was a home for them again.

So, it is possible to form a list, or at least the top and bottom of one. I really don't think there's much that we can do to sort out the muddled middle of the list -- it's senseless to take a John Nance Garner and decide, well, let's call him #23, but George Dallas, he was a little better, so we'll make him #22. To even attempt such a thing requires a deeper knowledge of American political and legal history than a lot of people possess -- even me and I think I've gotten pretty obscure here as it is. But I'm not the first to confront the issue.

If forced to choose, I think I'd start with such a list with these guys first:

1. John Calhoun -- for laying the groundwork that led to the Civil War.
2. Aaron Burr -- for killing Alexander Hamilton, inciting war with Spain, and apparent commission of treason.
3. Spiro Agnew -- for being a corrupt, petty bastard who presaged his President's fall from grace.
4. Thomas Marshall -- for letting himself get edged out of power by the First Lady.
5-11 (tie). In no particular order, George Clinton, Elbridge Gerry, William Rufus King, Henry Wilson, Thomas Hendricks, Garret Hobart, and James Sherman -- for dying in office and thus rendering themselves unable to fulfill their singular duty of being alive to be President if necessary.
12. Schuyler Colfax -- for nearly bringing down his President's Administration into the biggest corruption scandal in American history.
13. John Adams -- for getting hooted out of the Senate and ruining whatever chance there was of the Presidency having a direct hand in guiding legislation. (He made a fine President, by the way, particularly considering that Washington was a hard act to follow -- but he was not a good Vice President.)
14. Dan Quayle -- for allowing himself to be made into a laughingstock, whether deservedly or not.
15. Thomas Jefferson -- for four years of stabbing his President in the back. (Also a very fine President, but not such a good Vice President.)

At the "best VPs" end of the list, I'd have to put all the men who actually did the real job of Vice President -- which is taking over and becoming President themselves in an emergency situation. So that would be John Tyler, Millard Fillmore, Andrew Johnson, Chester Arthur, Teddy Roosevelt, Calvin Coolidge, Harry Truman, Lyndon Johnson, and Gerald Ford. Of them all, I admire Gerald Ford the most, Roosevelt next, and both Johnsons right after him -- but it's difficult to separate their deeds as Vice President from their deeds as President. And Tyler, for setting the precedent, should get a high spot, too. Also worth a mention would be Charles Dawes, who was the first American Vice President to win the Nobel Peace Prize.

Cheney? I'd downgrade him for his scary vision of a nearly autocratic Presidency and his efforts to make that vision a reality; but I'd upgrade him for competence, political juice, and contribution to the effectiveness of his President's Administration. Really, I think that puts him pretty close to dead center of the list, at least until we move along in our history and start to gain some perspective freer from contemporary political biases than we possibly can be while Cheney is still holding the office.

NOTE: Wikipedia was not used in the drafting of this post.