Scorecard 2010

Here were my predictions for 2010, and here's how they did:

1. Jon Huntsman will resign as ambassador to China and begin to lay the groundwork for a Presidential bid in 2012.  Has not happened.  In retrospect, I failed to credit the idea that Ambassador Huntsman might actually like being the Ambassador to the PRC and that he might not really want to be President.
2. Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.  Democrats abandoned their strategy of running against George W. Bush in favor of atomizing local races, which was only partially effective; Republicans took the House but not the Senate, although their Senate gains were larger than I had predicted.
3. A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.  I'm taking credit for calling this one pretty much correctly.
4. The net inflation rate of the United States for CY 2010 will be in excess of 4%.  Gratefully, this has not happened, but only because the Fed has kept the prime rate at a rock-bottom level.
5. President Obama will again increase the number of American troops deployed to Afghanistan.  This happened. That doesn't mean I'm happy about it because I'm not, especially because we're now talking about bringing them home with no apparent political objectives accomplished despite hard work and bloodshed by our military.
6. Canada's government will collapse, for real this time, and new elections will result in a badly-fragmented Federal Parliament with the BQ playing the role of powerbroker.  However, the BQ will not be able to leverage this into actual autonomy. Didn't happen; PM Harper took a hard hit, but survived.
7. An El Niño condition will manifest in the Pacific Ocean, relieving California's drought. In fact, it was a La Niña, but we had a wet winter at the start of 2010 and a wet winter at the end of 2010, and have been out of drought conditions all year.
8. Despite the economic help of favorable (that is, "wet") weather, California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship. Mostly happened. The only thing I got wrong was the sales tax hike.
9. A national newspaper of significant stature, I'm thinking the Boston Globe, will be liquidated. The Seattle Post-Intelligencer went all-online and has functionally diedas a result.
10. 2010 will be a good year for the stock market.  The S and P 500 will realize a net gain of over 20% in CY 2010.  As of today, the S and P 500 is 1,124.57, so that means that to win this prediction, the S&P will need to be at least 1,349.48 on December 31, 2010.  The year-end close was it was 1,257.64.
11. Iron Man 2 will be the biggest box office hit of the summer.  But another much-anticipated sequel in the same general genre, Tron 2, will disappoint and lose money.  Wall Street 2 and Sex And The City 2 will both prove to be so unwatchably bad that we all would have been better off had they not been made at all.  Remakes of Clash of the Titans and Red Dawn will both prove to be convincingly entertaining.  Mostly happened. Clash of the Titans disappointed; the release of Red Dawn has been delayed; Tron was fun to watch but looks on track to not make much of a profit compared to its production expenses.
12. In First Amendment news, the Supreme Court will decide for the government, 5-4, in the case of Salazar v. Buono, ruling that a large cross, originally built privately as a war memorial, later transferred to Federal land, then the subject of an Establishment Clause lawsuit, and then the subject of a law transferring the cross to the VFW.  The Court's decision will consider the longevity of the monument as a significant factor mitigating against the finding of an Establishment.  (I consider this a pessimistic prediction, for the record).  Justice Sonia Sotomayor will prove to be the decisive vote in favor of the government.  I nailed it right up to the Sotomayor prediction, which turned out to be wrong. The decisive vote was Anthony Kennedy.
13. In Second Amendment news, the Supreme Court will decide, by at least 7 votes, that the individual right to own weapons articulated in District of Columbia v. Heller will be "incorporated" into the Fourteenth Amendment and thus apply to the several states as well as to the national government.  However, the Court will unanimously decline the opportunity to expand the "privileges and immunities" clause embodied in the arguments.  Watch for the decision in McDonald v. City of Chicago to be one of the last decisions announced in June. I hit this one right on the head.
14. Brett Favre will play his final year for the Minnesota Vikings, and then retire.  For real this time because he'll be 41 years old and in at least moderate pain almost all of the time. He hasn't announced his retirement yet and there will be lots of jokes in August, but after the Vikings' disastrous season, it's clearly time for Brett to say goodbye.
15. Iran will successfully detonate a nuclear device.  This will cause much wringing of hands and gnashing of teeth and many Americans and a significant number of Europeans will consider this to be an existential threat.  While all of this is going on, the Russians will hem and haw and whistle tunelessly while staring at the ceiling while trying to blend into the background and go unnoticed.  However, the Iranians will not use their newly-developed nuclear weapon against anyone, including Israel. Gratefully, this did not happen.
16. On December 31, 2010, the U.S. national unemployment rate will be somewhere between 7.5% and 8.5%. I was too optimistic here; the unemployment rate hovered just under 10% all year.

Not so good this year. Hey, at least I didn't make any predictions as boneheaded as these:

10. U.S. Vice President Joe Biden: "More people are going to be put to work this summer."  June 17, 2010. Embarrassingly for me, Vice President Biden's prediction looks a lot like one of my own.

9. U.S. private citizen Meghan McCain: Sharron Angle, Charlie Crist, Christine O'Donnell, and Carly Fiorina will win their Senate races. November 2, 2010. All those candidates lost, three by decisive margins, congruent with polling data that had been available for weeks prior to Ms. McCain's prediction.

8. U.S. President Barack Obama: Guantanamo Bay's prison facilities will close within one year. January 22, 2009. Still over 150 prisoners there and only three trials have been held, all resulting in convictions.

7. U.S. Gen. Stanley McChrystal: "We're not at the end of the military phase, but we're clearly approaching that." March 2, 2010. Gen. McChrystal was referring to Afghanistan, not Iraq, although in each theater we present have over 50,000 combat troops actively engaged in the vital job of killing bad guys.

5. (Tie) Greek Prime Minister George Papandreou and Irish Prime Minister Brian Cowen: "Our countries don't need to be bailed out" (paraphrase), February 21, 2010 and November 15, 2010. Within weeks of each prediction, both countries were bailed out of imminent financial collapse by special funds created by the EU and the IMF.

4. Newsweek Magazine: Venezuelan President Hugo Chavez will be ousted in a military coup, December 2009. While Chavez remains in power, Newsweek was sold for one U.S. dollar earlier this year.

3. Former Cuban dictator Fidel Castro: The U.S.A. will soon launch an overt attack on Iran, shortly followed by another overt attack on North Korea, June 25, 2010. That, um, didn't happen, El Commandante. Better luck next time.

2. Former U.S. Ambassador to the United Nations John Bolton: If Israel fails to launch an overt military strike on Iran within eight days, the Iranians will achieve a nuclear weapon, August 17, 2010. The Israelis (presumably) used a computer virus instead.

1. Russian Foreign Ministry Diplomatic Academy Dean Igor Panarin: "There is a high probability that the collapse of the United States will occur by 2010," March 3, 2009. Sharp political differences over seemingly vapid causes should not be mistaken for the imminent collapse of a common national identity.

...Stay tuned for my fearless predictions for 2011, some of which will be based on sober analysis and some of which I'm pulling straight out of um, parts of my body.

Prosecco And Auguri

To open a bottle of sparkling wine, the trick is to not let in too much oxygen all at once or else it froths out and spills everywhere, creating a sticky mess and wasting perfectly good bubbly. This is great if you're celebrating winning a major sporting event but a crying shame for when you actually want to drink the stuff -- especially if you spent the money (as you should, this is an indulgence) to get quality.

I use a clean tea towel as my accessory to avoid this. Remove the foil and undo the wire cage to expose the cork. Then surround the neck of the bottle and the cork with the tea towel, and through the towel, gradually worry and twist the cork up, milimeter by milimeter, which should take about twenty seconds, until the pressure in the bottle takes over and does the rest of the work for you. The tea towel both arrests the inflow of air into the system, and it catches the cork and bounces it back quickly to shut off the intake of air. It only takes a second or to to arrest the overflow reaction of sudden carbonation, and your entire bottle can be used as it was intended -- to pour into flutes and be consumed by human beings, not shot in a foamy trail all over the floor to scare the hell out of your cat and to acquaint your dog with a taste for expensive fizzy wine.

In fact, I've been sleeping poorly these past several days so chances are excellent that after wrapping up my prediction posts timed for around midnight, I'm going to wrap things up early and go to bed well before midnight. I've not stayed up to ring in the New Year more than two times in the last decade and neither this year nor the upcoming one seem to offer much reason to make it the exception to the rule. Besides, we have a nice bottle of prosecco in the refrigerator which we'll have tomorrow -- to be mixed with fruit juice along with the rest of our breakfast.

Auguri, loyal Readers.

Pennies...

...should be abolished. They cause more trouble than they're worth, and a penny has become a trifling amount of money. If everything were priced in nickels, it would only be a few weeks before no one would notice the difference.

The Constitution Deserves Better Than Rote Recital

You would think that I would applaud the reading the Constitution in order to open a session of Congress. But I'm not doing that.

I used to be a Roman Catholic. Part of the Roman Catholic Mass involves collective recital of a variety of prayers. As children and teenagers, Catholics go to class to learn the appropriate responses to various phrases recited by the celebrating priest during the various rituals within the Mass -- when to stand down, sit up, or genuflect; when the priest says "X" you say "Y," and so on. And then you go to Mass and you do these things and you do them so much that they become automatic.

Although I haven't been to a Mass at all for at least five years and I haven't really meant it for over twenty,* I'm quite confident that if I walked in to a church, alone, right now, I could recite all the congregation's responses to a priest's saying the Mass without use of a Missal (those little guidebooks they distribute on the back of the pews). Such is the power of memorization and imprinting, especially on an impressionable young mind.

While the classes Catholics take are supposed to teach the young students the importance of the words they are saying, the fact of the matter is they don't do that very often, and even the ones who do absorb these lessons and take them to heart often find themselves just going through the motions, and in candid moments they will admit this. Their minds are not engaged on what they are saying; their statements are automatic and even reflexive while their thoughts, if any, are elsewhere than the subject matter of the Mass.

The Pledge of Allegiance is a more universal example of the same phenomenon: through heavy rote repetition, intellectual meaning is lost. My guess is that only rarely are people given instruction in the meaning of the words of the Pledge of Allegiance, and even if they are, if they are made to recite it, every day, they just do it on autopilot and don't think about what they are saying. They go through the motions, conform to peer pressure, and make an outward show of patriotism without actually feeling particularly patriotic -- the emotional experience becomes that of a duty discharged or an affirmation that they are within the "in-group".

They don't consider that the Pledge is essentially a military exercise. Why are there flags in the first place? So soldiers on the battlefield can identify which combatants are friendly and which are hostile. Pledging allegiance to a flag is stating which side of a fight you're going to be on.

They don't consider what it means to say that the flag "stands for" a Republic. They aren't thinking about the fact that the United States has a republican form of government, a representative federal democracy with a division of powers; they are very likely not thinking about what alternatives to republican forms of government might exist, such as monarchy or military dictatorship or theocracy or policies selected through the mechanism of chance.

At least in the early twenty-first century, it strikes me as unlikely that they are really reflecting on the inclusion and origin of the word "indivisible" in the Pledge. If they did, they would have to intellectually confront the fact that the Pledge is a relic of the aftermath of the Civil War, and that none of the original Founding Fathers ever recited it or anything like it; it is not nearly so ancient or immutable as they might feel comfortable believing.

The final clause of the Pledge is quite ambiguous in meaning, an articulation of a high national ideal and one to which we as a nation hope to strive for but no one should have much difficulty coming up with examples of how we fall short of achieving it. People who engage in rote recital of the Pledge certainly are not going to pick up on the challenge inherent in that phrase to help the nation do better, to be freer, to extend liberty and justice in a more universal way, than we already do.

That's because rote repetition of a series of words is not about encouraging critical thought. It's about producing an outward conformity on the part of those who engage in the ritual. Individual critical thought is not necessary and often detrimental to this sort of conformity.

Someone who thinks that maybe the secession question hasn't really been settled by now, and that it remains a theoretical possibility for a state to lawfully secede from the Union, ought not to recite the Pledge of Allegiance, because the Pledge insists that the nation is "indivisible." Someone who thinks that an individual state is a sovereign nation participating in some sort of a grand Constitutional alliance with forty-nine other sovereign nations -- and yes, there are those who think this way, and some of them hold high office -- ought not to recite the Pledge of Allegiance with its insistence that the United States is "one nation" rather than "several nations." Someone who thinks that certain people in the United States are not entitled to the same kind of liberty and justice afforded to other people -- if they think that enemy combatants seized on the field of battle and imprisoned by the American military are not entitled to due process of law, access to counsel, or the ability to peacefully walk away from their American captors -- ought not to recite the Pledge of Allegiance because they don't really believe in "liberty and justice for all;" at best, they believe in "liberty and justice for some." I think my position on the "under God" clause is already well-known.

But of course the failure to recite the Pledge of Allegiance in a setting where others do so is a rather dicey proposition. Not reciting the pledge when others do so is very likely to be interpreted as an expression of contempt for the United States. When everyone around you stands and places their hands on their hearts† and you don't, they're going to look at you funny. They're going to think less of you. And you're identifying yourself as "not a part of your group." So that's the reason people recite the Pledge -- to conform, not to actually express fidelity to anything.

So when I see that the incoming Congress is making a public spectacle of having a ceremony in which the Constitution is read out loud to the House of Representatives at the start of the session, I start to wonder:

• How many Members of Congress are going to be in the Chamber when the reading takes place?
• Of those Members, how many are going to listen to the reading instead of doing other kinds of work like, say, talking to one another about the government?
• Of those Members who really do listen, how many are going to take the time to understand what is being read to them?
• Will any single Member of Congress change his or her behavior in office one bit as a result of participating in this ritual?
• Can't the same purpose be achieved by distributing physical copies of the Constitution to each Member?
• Members of Congress are already Constitutional officers of the United States and supposed to be possessed of at least average intelligence -- haven't they read the Constitution already? Weren't they all taught this stuff in high school?
• Has anyone given thought to the fact that the Constitution is susceptible to multiple reasonable interpretations by people of strong intellect and good faith?
• Will this ceremony be repeated in future Sessions of Congress, and if so, to what effect?
• If reading of the Constitution becomes a de rigueur ritual, will its substantive meaning atrophy with repetition, the way the vitality of the Pledge and the Mass has done?
• The initiation of this ritual seems to be strongly associated with the incoming Republican majority; will this ritual therefore evolve into a political football, an expression of partisanship rather than one of unity and common citizenship?

The likely answers to these questions displease me so much that what seems on its face, to be a good idea and a nice thing to ritualize, has a real danger, at least over time, of diluting the importance of that which it seeks to buttress. The Constitution is too important to all of us to use as a political football.

So I'm calling this a nice idea but it's not one that we should allow to become an intellectually-dead ritual, so it should be something that if done again at all, is only done rarely.

Now, I do like the idea of all bills needing to include a claim to Constitutional authority in principle, but again, there is more symbolism than substance here and I suspect that this will result in a lot of verbiage but not a lot of actual thought. It will be easy for a Member to include one line in every bill saying "Congress has authority to enact this legislation under the Commerce Clause of Article I, Section 8 of the Constitution," and that will be that. On the off chance that Commerce Clause authority is later found to be wanting in a judicial challenge to the Constitutionality of the law, a Court should be able to examine other sections of the Constitution for authority supporting the legislation whether or not they are cited.

But at the end of the day, rhetoric and ceremony about the Constitution is not the same thing as respecting and following it. Congress can talk the talk, but the measure of its action must ultimately be in deeds, not words.


* Surprise! Nonbelievers attend religious services all the time. Sometimes they even participate. Why would they do this? I won't speak for others, but in my case, it was to please religious family members. There is an element of dishonesty in so conducting oneself, but I maintain that it is equivalent to the dishonesty that is found when one meets an acquaintance for the first time in several months and says "You look great!" instead of a more truthful observation like "You've gained weight!"

† Legend has it that the flag salute used to be an extension of the right arm, with elbow locked at full extension, hand fully extended toward the flag. That form of salute changed in the 1930's because Congress thought it too closely resembled the salute used by Fascists in Europe and Japan.

The Internet - Destroying Justifiable Faith In Humanity Since 1993

It's one thing to read comments to YouTube videos, which have acquired something of a reputation for being particularly inane and intelligence-free. But one hopes for better when one reads comments to an article in Scientific American.

I Once Claimed California Was Over-Regulated

It took me sixty seconds on the internet and $6.99 to become ordained as a minister and become empowered to officiate over and solemnize wedding ceremonies. I didn't even have to profess a religious creed. Truly, I live in a libertarian paradise.

Published with Blogger-droid v1.6.5

Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.


* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

My Breaking Point: A Haiku

"Holy communion"

Is why I'm an atheist:

It's not human meat.

Double Feature

It was double feature Christmas Eve yesterday after The Wife got off work early (I had the day off). The selection at the theaters was Tron Legacy in 3-D and Black Swan.

There is no point in seeing Tron in 2-D, as far as I am concerned. The "real world" sequences are in 2-D, while the "in the Grid" sequences are in 3-D, which is supposed to make you ask yourself which of the two worlds is more "real."

The point of the movie is the computer-game action sequences; they are supposed to be faster, more dangerous-looking, more fluid, and generally updated and cool from the original movie. They are everything you would want them to be -- except plentiful. At the end of the film, I was left with the impression that there were only four action set-pieces in the whole movie, and of them, two were updates (albeit really cool ones) from the 1982 original movie. The light-bike sequence, predictably but gratifyingly, was the best. The CGI "youthening" of Jeff Bridges was impressive and believable; I was confused as to why the producers did not choose to do the same thing for another one of the characters too. When they did the action and fighting I enjoyed myself immensely and was tense and scared for the light-bike fight.

The rest of the movie did disappoint, though. I could tell that the younger stars (the linsome Olivia Wilde and the athletic Garrett Hedlund) were trying hard to breathe life into shallow characters; Jeff Bridges seemed less interested in anything other than the paycheck. But the real disappointment was the story. A movie rises and falls with its script and this one was at once too complex and confusing, and yet at the same time too contrived. In order to explain everything and render the bad guy a real bad guy, and the good guys really good guys, there was far, far too much exposition -- without it, the story would have been even more confusing, but with it, the movie far too slow.

The soundtrack by Daft Punk was perfect. A cameo by Cillian Murphy sets his character up as a likely bad guy should there be another sequel (which I would title Tron: End of Line). Michael Sheen was over-the-top and therefore not particularly credible in his role; he seemed to by trying at once to mock the colorless and superfluous character of The Merovingian in the Matrix sequels, while also trying to marry John Hurt as Caligula from I, Claudius and David Bowie as Ziggy Stardust. At the end of the day it did not work and I was not sorry that the role was so small despite the waste of such a fine actor in it.

I don't regret having spent the money to see the movie at all; it was a great audio and visual spectacle, entertaining and thrilling in places. But I won't see it again; the murky, talky story isn't worth wading through twice. A good thrill ride, which need not be repeated.

Black Swan was The Wife's selection for our double feature and walking out of the theater, I felt like I had I enjoyed it about as much as I had the first movie; the numerous realistic hallucinatory scenes left me confused about what had been real and what had been imagined by the heroine throughout the entire film. But the more I think about that movie, the more I find I enjoyed it and it keeps on sitting nicely in my mind; that confusion was of course intended all along.

As one would hope for in a thriller like this, the acting is really good. Natalie Portman plays an intense, not particularly likeable, but technically talented and full of potential ballerina. Barbara Hershey is really outstanding as Portman's overbearing mother. Each of these characters is a fascinating psychological study. Mila Kunis (a real-life social friend of Natalie Portman) is less interesting as a character than as a symbol of a less dedicated and ambitious, but freer and more enjoyable, way of life than the one Portman's character finds herself tracked for. European star Vincent Cassel ought to earn greater notice in the States for his turn as the demanding, manipulative, and ambiguous director of the ballet.

Winona Ryder struck me with the pathos she was able to put in to a relatively small role. The role itself must have been a bit of a challenge for her on an emotional level; she plays the older ballerina displaced by the younger, now-prettier up-and-comer represented by Natalie Portman. Maybe I felt special sympathy for this character because Winona Ryder is close to my own age and Hollywood is notoriously age-discriminatory, particularly for its leading women -- as she approaches her 40's, Ryder is still very attractive but it seems that many of the better opportunities go to women about ten years younger than that. Playing a character who represents that phase of the business for someone who actually is in that phase of the business must have seemed particularly poignant.

And at the end of the day, Black Swan is about not just the ballet but show business entirely. The question it asks to others who would pursue a career in any of the performing arts is, how far are you willing to go to deliver a good performance and earn the accolades of the audience? It's clear by about halfway through the movie that Natalie Portman's character is sacrificing (whether willingly or not) her mental stability in order to achieve that goal.

Portman does a fine job portraying the material and emotional sacrifices that a life at the elite level of the performing arts demands; but it's clear that she can only do so because she has never seen that there are any real alternatives. Portman is on screen, or her character is within the staging, for almost every moment of the film. She is frequently silent, in part because her character is exhausted and out of breath from the athletically demanding activities of a ballet dancer. The makeup artists did a great job of making it look like she was not wearing makeup, sweaty, and looking decidedly unattractive.

Kunis' character shows her that it is possible to still be in the game but, at the cost of maybe not having the personal discipline to reach the very top, can still enjoy life. Kunis plays a ballerina from free-spirited San Francisco who eats cheeseburgers, takes Ecstasy before a night of club-prowling leading up to casual sex, and sasses off waiters hitting on her before she's ready for male companionship. Portman's obvious jealousy at Kunis' liberated lifestyle reveals the tension and ambiguities in her character which ultimately prove the decisive issues within her character.

Portman also has two scenes of frank sexuality, one of which is an encounter with Mila Kunis that generated a lot of buzz. At the end of the day I'm not entirely sure if that scene couldn't have been done effectively with a man instead of a woman, although I suppose on balance having it between these two attractive women actually did contribute to the narration as well as generate titillating buzz that will attract men as well as women to a story about ballet dancers.

You wouldn't think that a movie about ballerinas would rely much more heavily on costumes than special effects. But the effects were a critical part of the film. The motif of mirrors and Portman's periodic hallucinations -- some of which were so gruesome that they left me squirming in my seat -- are probably the most important part of the whole film. They provide the visual clues to the viewer about what is being seen and whether it relates to objective reality or something different.

But the ambiguity I remain dissatisfied with at the end of the day is that I cannot decide whether Portman's character chose the path she did or whether circumstances forced her to do as she did. This parallels the story of the ballet, Swan Lake, which provides the thematic track upon which the movie proceeds.

You should see the movie for yourself and draw your own conclusion about whether what you're seeing is a tragedy (a story about a character's destruction resulting from an internal character flaw or a conscious choice), or a pathedy (in which large forces well out of the control of any character conspire to utterly crush a helpless heroine). The final line of the movie suggests to me the former, but your mileage may vary and I can't be certain about that either. The fact that I'm still ruminating about it the next day is the best signal I can imagine that there was a pretty solid story here, which makes this movie worthy of a second viewing.

Time To Change My Job Description

Take two hypothetical people. And when I say "people," what I really mean is "taxpayers." Let's call these folks "Attorney Alice" and "Minister Mike."

Attorney Alice works for the law firm of Nasty, Poor, Brutish & Short LLP, which pays her $105,000 a year in salary and structured bonuses.

Minister Mike works for Innocuously Bland Protestant Ministries of Springfield, which pays him $105,000 a year, in the form of a $40,000 annual salary and a $65,000 annual "housing allowance."

Neither of these hypothetical characters receive any additional benefits like contributions to retirement accounts or health insurance; both are the sole breadwinners for families of four; both are homeowners; and the above exhaustively describes the money coming in to both of their households.

What's the result? Attorney Alice pays $24,576 in state and federal income taxes. Minister Mike, who you will recall brings home the exact same amount of money, pays only $1,540 in federal and state income taxes -- one-sixteenth of Attorney Alice's tax burden.* Read all about it from the tax preparer's perspective. (Via.)

I'm sure you can guess which one of the two asked for a discount on the tax preparer's fee.

You don't need to be an atheist to see that this result is unfair. It might help to be a lawyer or an accountant, though, to see a Constitutional problem. See, in law school, I was taught that the tax code is written the way it is so that the government can encourage certain behaviors and discourage other behaviors. This example illustrates a powerful incentive for people to pursue careers in religious ministries. That, in turn, would seem to represent a clear preference by the government for religion over non-religion, which when expressed thusly rather clearly violates the Establishment Clause. (See, e.g., Board of Education of Kiryas Joel Village School District v. Grumet (1994) 512 U.S. 687, particularly the phrase "...a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion.")

Now, I don't really have a problem with the government choosing to say that the ministry is a public service profession. I'd readily agree that most ministers, in most settings, provide a variety of benefits for their communities. That they could do so in a secular fashion is irrelevant; they can do so in a religious context and they may express their professional activities as being part of a set piece inseparable from their faith and theological beliefs if they so desire. I don't get to choose your religious ideas for you and if your faith gets you to behave in a noble, morally good fashion that benefits your community, I've no cause to object.

What I want, though, is equality before the law. I, too, am engaged in a public service profession; I assist people with their social problems; I guide them through tough times, I hold their hands while they cry, and I give them advice to help resolve disputes. I am significantly more accountable to the public and significantly more regulated by the public in the practice of my profession than the minister is in his; I am thus even more burdened in the practice of my profession than the minister, all other things being equal (the key equality here being gross income).

So if a minister gets to knock more than half his income out above the line and double-deduct things like mortgage interest, property taxes, and homeowners' insurance, then I should be able to do that, too. It's not fair that because I base my guidance in dispensing that advice from books of law, and the minister bases his guidance on an ancient holy book, the government should treat him better than it treats me when it comes time for us to pay our taxes.

Maybe I should call myself a "minister of judicial dispute resolution" instead of "attorney."

And while I'm on the subject of Establishment Clause violations, I just have to recognize and give thanks to Dan at Bleakonomy for a very amusing shout-out. Merry Christmas, dude.


* To be fair, Minister Mike in this example opted out of Social Security and Medicare taxes, and therefore will not be entitled to participate in those benefit programs upon his reaching retirement. Attorney Alice is legally required to participate in Social Security and Medicare.

But Weren't The Southerners Good To Their Blacks?

As neo-confederates celebrate the sesquicentennial anniversary of South Carolina's act of treason in defense of slavery, I am grateful for a link to Ta-Nehisi Coates of The Atlantic.

Coates tells the story of Robert Smalls, an escaped slave who commandeered a confederate warship, four pieces of artillery, and a naval code book and turned them over to the Union Navy, and then went on to accept a commission in the Union Navy, to take command of a vessel under heavy enemy fire and steer it to safety. Captain Smalls was the first Black man to command a ship in the United States Navy, and received a medal for his bravery. He also received a $1,500 share of the prize money for the captured Confederate ship, which it seems he plowed into a successful campaign for the U.S. Congress, where he served for at least three terms.

Go read the whole thing. Then wonder as to why it is that he did what he did if the Civil War wasn't about slavery, if the Confederate propaganda about how good the southerners were to their darkies was worth any credibility.

You've never heard of Captain Robert Smalls before. This guy is a massive American hero and what he did must have took some massive stones.

This Is Why There Are Sports Blogs

Correspondence from 1974 between an attorney who is a Cleveland Browns season ticket holder and the response turns out to be 100% pure awesome. If it's not genuine, it ought to be.

Lame Duck Congress

Is it just me or has the lame duck session of Congress this year been more productive than the entire regular session? Whether you like the results or not, it's undeniable that a lot of stuff got done on both sides of the aisle and in both houses. Why weren't our Congresscritters working this hard all year?

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Is It Really Good News?

Yesterday while discussing the news of the new Congressional apportionments with a friend, I grew reflective:

"Time was, I would have greeted this as good news. Now I'm not so sure."

"Really, why?" my friend (a fellow moderate Republican) asked me.

"I don't trust the Congressional Republicans anymore. They only do weird social stuff and don't cut spending."

When he got done laughing (a combination of mirth and bitterness), my friend agreed with me that I'd pretty much nailed it.

Call This Man The Waaahmbulance

Doug Mataconis at Outside the Beltway points out a case in which a recently-defeated Congressman (Ohio Democrat Steve Driehaus) is suing a political advocacy group (in this case a pro-life group called the Susan B. Anthony List, hereinafter "SBAL") for defamation:

The group claims Driehaus, who has campaigned as an anti-abortion candidate, supports taxpayer-funded abortions because he voted for the national health care law. Driehaus said the claim is false and that the law bars any federal funding of abortion.

“A lie is a lie,” Driehaus’ lawyers wrote in his federal defamation lawsuit. “The First Amendment is not and never has been an invitation to concoct falsehoods aimed at depriving a person of his livelihood.”

My initial reaction is -- boo frickin' hoo for you, Congressman. If you're going to play hard ball, expect fast pitches. If you're going to run for elective office in the United States of America in the early twenty-first century (or indeed at any time to date in our nation's history) you need to prepare for someone to deliberately and maliciously misrepresent your record and to fight fire with fire. You aren't entitled to a livelihood in Congress, you have to earn it. "It's the peoples' seat," remember?

The law would seem to support my initial reaction: New York Times v. Sullivan (1964) 376 U.S. 254, says that a public official will not prevail in such a suit based upon "...a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." So here's his theory -- given that functionally no one in Congress had actually read the healthcare reform bill before voting on it, it's a reasonable bet that the SBAL had no real way to be certain whether the bill supported or did not support abortion, either, and that constitutes "reckless disregard of whether [the claim] was false or not."

So what this means is that in politically-charged litigation (SBAL is already suing Driehaus; Driehaus' defamation claim is part of a countersuit) both sides will get to argue about what is or is not in the healthcare reform bill for which Driehaus voted, thereby giving Driehaus' political enemies a platform upon which to continue spreading their message. And if there is even a colorable argument that under the new law federal money does go to fund abortions, then he's guaranteed to lose in court even if it turns out that, upon close examination, the law really does exclude funding for abortion.

Poorly played, soon-to-be-former Congressman Driehaus.

Whatever it was that the SBAL said about Driehaus, though, it's quite likely that it made little difference at all in the election. 2010 was a bad year to be a Democrat and a worse one to be a Democrat from a non-secure district who voted for the healthcare reform bill for reasons having nothing whatsoever to do with abortion.

Driehaus has only himself to blame for not responding appropriately to campaign lies, he has only himself to blame for the voters growing dissatisfied with his performance in office and choosing to replace him, and he will have only himself to blame for the situation in which he will soon find himself -- paying for lawyers to continue fighting over the last campaign in court.

One would think that he has better things to do with the remainder of his life than this. The evidence, however, suggests that the contrary is true.

New Apportionment

With new census results out, seats will be reallocated in the House of Representatives and with that, the map of the Electoral College and thus the calculus of electing the President in 2012 will change. Had the last election been run with the future allocation, the result would have been Obama 353, McCain 185, a shift of twelve votes from "D" to "R."

Happy Solstice To All

The winter solstice has been an occasion for celebration around the world and throughout time.

So whether you celebrate Inti Raymi, Sanghamitta, Jul, Hogmanay, Shab-e Yaldâ, Modranicht, Lenæa, Karachun, Chanukkah, Beiwe, Ameratsu, Zagmuk, Montol, Sviatki, Dongzhi, Makara Sankranti, Meán Geimhridh, Şeva Zistanê, Ghambar Maidyarem, Soyal, Chronia, Natalis Domini, Dzon'ku 'Nu, Choimus, Perchta, Blót, Goru, Sol Invictus, Ziemassvētki, Lohri, Brumalia, Rozhanitsa, Maruaroa o Takurua, We Tripantu, Lá an Dreoilín, or Lussi,* have a happy, safe, and joyous solstice-related celebration–along with the rest of humanity.

* Kwanzaa is not included in this list because to my knowledge they are not intended to coincide with the winter solstice. Islam has no winter holiday because it uses a lunar calendar and thus the solstice is not important to Muslims. Kwanzaa celebrators and Muslims are welcome to educate me if I am incorrect.

Answering The Christian Science Monitor

Asks the confused reviewers at the CSM: "Why did 'Tron: Legacy' do so well at the box office?"

I recall predicting about this time last year that it would disappoint; if I am proven wrong that will not bother me particularly. An opening weekend of over $44,000,000 is a good start to the movie making back its purported $300,000,000 budget, but it would still have a long way to go before the movie can be called a success in financial terms. There seems little doubt, though, that when merchandising and spinoff video games are factored in to reviving this movie, Disney will be getting lots of Tron dough.

So why did this movie do even this well, mystifying curmudgeonly reviewers who hated the 1982 original film? The answer is that there are a lot of people more or less my age who watched this movie as teenagers (or in my case, as an almost-teenager) who were visually amazed by the video-game-brought-to-life, or rather life-brought-to-video-game, look of the original Tron. Being digitized into a video game was a primal fantasy for kids of the early 1980's and it has remained a primal fantasy for kids ever since.  So that's an entire demographic bracket for whom the movie promises to bring such a primal fantasy to the silver screen. In 3D, for which the audience will pay extra at the box office.

That's why Tron: Legacy did so well at the box office.

The Death Of A Nation: A Case Study Of Anxiety Projection

Paging Doctor Freud!

It would seem that institutionalized prejudice against homosexuals is more important to some people than patriotism and love of country. When men who have devoted enough of their lives and professional careers to achieve the very respectable rank of Colonel publish remarks such as this, one has to ask whether the very idea of a common national identity has suffered some sort of awful erosion:

I ask you, fellow citizen, after Saturday’s vote, would you give your life for our Senate? Would you give your life for our president? Or, would you go home to your family? Sadly, you know the answers already. If you never made a phone call or never entered the debate on this issue, it’s too late to care now.

Hat tip to Jim Burroway for this astonishingly sour grapes quote.

Now, I'm reminded of a few other things, both historical and demographic, which cause me to react to this sentiment with something other than despair. Unlike other advocacy groups, I tend to think that the young people who are doing the real, on-the-ground work of our military, are much more concerned with whether their brothers and sisters in arms can shoot straight than whether they are straight. There is little reason to think that recruitment will suffer so badly that this will happen:

This looks beyond conservative to me; it looks reactionary -- resistance to change for the sake of resisting change. When National Review offered as a slogan and image the idea of conservatism as a force which "stands athwart history, yelling Stop", the idea was "Hey, let's think this through before we do it."

But we have thought about allowing gays and lesbians to serve openly in the military. We've studied it. We've looked at other nations' experiences in their military. We've determined that the great majority of servicemembers and the great majority of citizens whom they serve are unconcerned with the sexual orientation of soldiers, sailors, and airmen. Resisting change for the sake of resisting change is not really aimed at improving anything. And the military is a uniquely adaptable institution within our society, precisely because it is so hierarchical, so driven by orders from above. A conservative (in the mold of a William F. Buckley, at least) can eventually be persuaded to try something new -- they're cautious about it, but sufficient data and study and relation of the new idea to timeless principles that work to make society stronger can overcome that caution and be embraced as welcome developments.

Contrary to the claims of some that laws reflecting evolving social realities irresponsible render the military into a political football, the truth of the matter is that while there is resistance to change, change happens and the military needs to adapt to that change and is possessed of a sufficiently supple internal social fabric to do so:

Now, I'll grant you that the last clip is fiction, but like most good fiction it makes an important point about reality: the military has been socially engineered before, and it came out stronger for it.

That there is lingering paranoia over homosexuals serving in the military is entirely understandable -- paranoia is founded, in many cases, upon fear of homosexual tendencies within oneself. Some refer to this as "repression of homosexuality," but it looks to me like it is more exact to say it is unresolved anxiety about the possibility that one might be homosexual, rather than anxiety about actual homosexual feelings in one who identifies as heterosexual. Regardless, paranoia is the result of not resolving that anxiety in a healthy way. What we're seeing is not really the erosion of our national identity, it's people being forced to confront their unresolved, or ill-resolved, internal anxieties, and projecting them out onto the larger world. In this projection, what starts out looking like a logical syllogism progresses into something at once darker and more irrational.

1. I'm afraid that I might be gay. Being gay is bad.
2. I identify with, or at least I like, the military.
3. If the military accepts gay people, that means being gay isn't bad.
4. But being gay is bad, so if the military accepts gay people, that means the military is bad.
5. If the military is bad, the military must be gay.
6. If I identify with, or at least like, the military which I now know to be gay, that must mean I am gay myself.
7. Therefore now I'm gay and I don't want to be gay because that's bad!

That such a line of thinking is obviously irrational and fraught with all manner of structural errors is beside the point. When you peel back the thought process of those who see some sort of fundamental, existential threat in the repeal of Don't Ask, Don't Tell, you're going to see something that looks a lot like that.

Nationalism isn't dying and the military will adapt to including openly homosexual members within its ranks. We shouldn't let the irrational psychological anxieties of some get in the way of moving our nation, and its essential institutions like the military, into the twenty-first century. The military has had gay people within its ranks for generations, of course, and somehow it functions well, as it always had. There are lots of old, old jokes about how back in the day when only men served in the military and especially in the Navy, sailors passed the time out at sea by coupling up, but somehow none of those jokes ever related what happens in the minuscule sleeping quarters of a ship with the ability of that ship to function in combat. There has always been recognition that even if those sailors turned gay when the ship lost sight of the horizon, they were still tough, capable fighting men serving America.

The only thing that's different now than what was in those old jokes is that soon, those soldiers and sailors won't have to pretend their straight if they aren't -- they won't have to lie in order to serve honorably. This will results in less cognitive dissonance, less anxiety, less lying to oneself and others. In the long run, our military will be stronger for it.

Fantasy Football Woes

It's time to hang 'em up. Our league is quarterback driven. This week our options for quarterback were:

Aaron Rodgers
Kyle Orton
Donovan McNabb
Tarvaris Jackson
Jimmy Clausen

What's worse, we had to pick two of those by Thursday.

Of these, it's a guarantee that three won't be playing again this season, and if da Bears beat Minnesota tonight (they're leading 17-7 as I write and are being ball hogs), that occludes the possibility that Green Bay can make the postseason, so why wouldn't Green Bay coast out the last three games by letting Matt Flynn get some experience?

This will leave us with one starting QB -- Jimmy Clausen of the Carolina Panthers. Something of a letdown after having had Aaron Rodgers all season.

Standalone DADT Repeal Gains Cloture

Even away from the internet while out and about news that cloture on DADT repeal was invoked earlier today has reached me. For all the missteps and display of poor organization exhibited by Congress this year, and despite the myriad of bad ideas wafting out of the corridors of power, we can take heart that at least they got this one right.

Formal repeal by the Senate should be early next week and unless the President waffles, our military will cease its most overt form of discrimination soon.

We are now another step closer to living up to our national ideals. Today is therefore a good day in American history.

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Work Product From The Questionable Methodology Department

I'm quite uncertain about the methodology reported upon here leading to the conclusions thus claimed. The results are interesting but I'm not entirely sure what they really prove -- and I doubt very much that they prove what is claimed. Nor am I at all confident that a study of Asian-Americans' cross-cultural identities first "primed" with respect to work ethics and then "tested" with respect to sexual ethics proves that all these Asian-Americans are somehow neo-Puritans.

Culture matters; the culture we create today will still echo hundreds of years into the future. I didn't need word-association experimental psychology reaching shaky conclusions to tell me that. Puritan culture survives in such a fashion today -- we are much more comfortable with violence than sex in our entertainments and quicker to identify sexual behavior as raising moral issues than almost any other kind. Puritans did not have a monopoly on the association of hard work with good moral behavior, however; nor did they have a lock on personal propriety being a profound virtue.

Biking Through The Central Valley

Hoover Institution Senior Fellow Victor Davis Hanson took a self-guided tour throughout the southern half of California's San Joaquin Valley and reports on what he saw and found. Some of his observations appear to be oddly ignorant of what seem like obvious facts, and for someone whose claimed intent was to "get the pulse" of the area, he seems to have done very little talking to people.

Nevertheless, much of what he has to say rings true and the critiques of both social and governmental trends are worthy of attention, and dovetail with my own observations of members of the Third Class.* For instance:

In two supermarkets 50 miles apart, I was the only one in line who did not pay with a social-service plastic card (gone are the days when “food stamps” were embarrassing bulky coupons). But I did not see any relationship between the use of the card and poverty as we once knew it: The electrical appurtenances owned by the user and the car into which the groceries were loaded were indistinguishable from those of the upper middle class. [¶] By that I mean that most consumers drove late-model Camrys, Accords, or Tauruses, had iPhones, Bluetooths, or BlackBerries, and bought everything in the store with public-assistance credit. This seemed a world apart from the trailers I had just ridden by the day before.

Prof. Hanson seems to ignore that the consumer electronic devices have become very, very affordable; technologically, cell phones have in many cases supplanted old land lines completely; and used exemplars of the vehicles he saw these consumers driving are, by operation of supply and demand, easily affordable. How much would you pay for an '02 Taurus? Less than $4,000, I'll bet.

But the quality of a 2002 car in 2010 is much, much greater than the quality of a 1972 car was in 1980, and Hanson seems to recognize this. So it seems that the rural poor who drive around in 2002 Tauruses and Camrys are better off than the rural poor who used to drive around in El Caminos and Darts. Which is true, but nevertheless unremarkable as a matter of economic reality; these are still people living in American rural poverty. It's just that contemporary rural poverty includes things that used to be considered luxuries and conveniences affordable only by the wealthy. This observation resonates in harmony with George H.W. Bush's astonishment at the use of laser scanners in grocery stores during the 1992 election campaign -- somehow, Prof. Hanson got out of touch with the economic realities of 2010 and seeing them played out in a rural, impoverished area seems dissonant to him. It does not seem dissonant to me.

It does, however, suggest that rural poverty in America is not nearly as bad as rural poverty in other parts of the world.

Where I think Hanson really strikes home is looking at the irregular effects of regulation. In his experience -- and that of many of my middle-income clients -- state and local regulators in this state intrusively meddle in aspects of daily life. I have a friend who has made all manner of interesting improvements to a formerly-modest house, but who has a deep fear that a county building inspector will come by and find the literally dozens of building code violations inherent in the now-expanded structure. Not that the improvements are bad or shoddy -- but they are not permitted, they use some non-standard building materials, and they are unconventional in appearance (for instance, an indoor koi pond adjoining the master bedroom, or the conversion of a bedroom into a home theater using old movie theater seats he found abandoned in a field). My friend is right to be worried about this; I have clients who have been inspected and found in violation of housing codes, and had to pay thousands of dollars in fines and invest tens of thousands of dollars in upgrades and permit fees to bring their homes into compliance. I have landlord clients who are cited by their municipalities for what seem like trivial violations (the one that comes to mind is an uninsulated flex-tube hooking up a hot water heater to the natural gas line, which violation my client's tenant appears to believe entitles her to $12,000 worth of free rent because she was living in "mortal danger").

Yet out in the Central Valley, Hanson observes uninsulated wiring on obviously substandard mobile housing and sees no effort by the government to enforce even basic standards of livability. Some of this might be explained by the fact that here in Los Angeles County, the county and local governments have comparatively more resources available for enforcement than in Fresno, Kings, and San Joaquin Counties where Hanson did his survey. But some of it may have to do with what he suggests is true (I take Hanson's denial of editorializing as sophistry; virtually all of his article is commentary rather than reportage) and that is the fact that regulators and other public officials have varying expectations for the kinds of conditions that are appropriate and reasonable for the Latino rural poor in the Central Valley and the kinds of conditions that are appropriate for urban and suburban dwellers elsewhere.

It is also worthwhile to note that available farmland is sitting fallow. Hanson does not identify a reason; correctly so because the reasons are likely complex when viewed systemically and too varied when viewed particularly -- one property owner may have credit problems, another may have legal issues, another may have failed to have complied with regulations needed to gain access to water, another may be in bankruptcy, and so on. But agricultural land in the San Joaquin Valley is among the best in the world, and if that land is resting fallow instead of producing food or otherwise being used, there ought to be both a reason and a solution to that.

Some of the issues Hanson confronts are, like the riddle of fallow farms, difficult to diagnose and will undoubtedly prove even more difficult to fix. But if it were easy, we can presume it would have been done already. Some of the issues he identifies -- the effects of racial homogenization, for instance -- are both volatile and ambiguous. The fact that it is hard to deal with these issues, though, does not mean they can be left alone forever.


* My theory is that there are three economic classes in the United States. The classifications are derived from the manner in which money and other goods are obtained, and have little to do with how much money one spends or the quality of one's circumstances in life. The First Class are those whose circumstances are such that they do not need to work; family or other capital provides for them. The Second Class are those who exchange their labor for money. The Third Class are those who receive money from the government in the form of entitlements. Within each class, there is a spectrum of wealth and poverty measured by not how much money comes in to the household but rather by how much consumption occurs; some people within each of the three classes live very well, driving high-end vehicles, wearing new and fashionable clothing, and eating in restaurants most of the time; others live in Spartan circumstances either by choice or out of necessity. Wealth mobility and class mobility are both possible, but difficult and rare. You can imagine a poor First Class person as a trust fund baby plagued by addiction; a wealthy First Class person as a socialite. A poor Second Class person might be a starting wage earner sharing an apartment while working for a single-digit hourly wage; a wealthy Second Class person might be a doctor or a lawyer. A poor Third Class person might be a recipient of Social Security disability payments, receiving no other public aid and unable to pay the rent; a wealthy Third Class person might be someone receiving a panoply of various welfare benefits, lives in deeply-subsidized housing in a good neighborhood, who drives a leased one-year-old Escalade, and shops at Trader Joe's. Members of all three classes, from a variety of points along the parallel wealth spectra, may be found here in my own community. I'm not yet done fleshing out this concept in my mind but I'm convinced there's something to it.

Flunking Gandhi's Test

"A nation's greatness is measured by how it treats its weakest members." -- Mohandas K. Gandhi.

A prisoner is utterly and completely at the mercy of the government which has imprisoned him. He relies upon his jailers for food, for safety, for medical care, and every other necessity of life. Any comforts or personal items given to him from the outside are subject to immediate confiscation and thus private possessions are, as much as anything else, dependent upon the fiat of the guards and wardens who run the institution. Prisoners lack nearly every civil liberty which you and I, as free people, take for granted. A prisoner may easily counted among the weakest members of a society. How we as a society treat our prisoners is a measure of our moral worth.

By this yardstick, we are a badly deficient society. Since May, a man who has been accused of a crime but not yet convicted is being held in solitary confinement in a military prison. Now, there is no particular reason to love PFC Bradley Manning; if he is guilty as charged, he was personally responsible for the leaking of all sorts of classified documents, many of which wound up on Wikileaks and have caused our nation no end of embarrassment and, at least temporarily, weighed down our ability to engage in diplomacy. If he is convicted of these crimes, he should be punished.

But he hasn't been convicted yet. Of anything. As of right now, PFC Manning is an innocent man. Our legal system, ostensibly, presumes his innocence until such time as a verdict is entered against him. And yet this is how a citizen of the United States who has, as of yet, been convicted of no crime and has demonstrated no propensity to violence is being treated by the government:

For 23 out of 24 hours every day -- for seven straight months and counting -- he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he's barred even from exercising and is under constant surveillance to enforce those restrictions. ... [Bradley is] denied ... a pillow or sheets for his bed (he is not and never has been on suicide watch). ... [T]he brig's medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.

I'm no prison warden, but I understood solitary confinement to be appropriate for prisoners who are violent to other prisoners or to prison personnel. And bear in mind that, at this point in time, PFC Manning is entitled to a presumption of innocence. The government has not proven, beyond a reasonable doubt in a court of competent jurisdiction, that PFC Manning has done anything wrong.

Let us presume, however, that Manning had been convicted already. Let us presume further that we could prove that what Manning did -- leaking thousands of documents in violation of secrecy orders -- had serious consequences like people getting killed, wars being prolonged unnecessarily, and human misery around the globe extended where it could have been ameliorated. Again, I'm not suggesting that criminals like that should not be punished.

We seem to have lost sight of the fact that incarceration, without any particular enhancements, is already a really bad, nasty, punitive thing to do to a person. Prison is a Very Bad Place. Being deprived of one's liberty is a Very Bad Thing. What's more, prison causes one to involuntarily associate with a society of nearly exclusively other criminals and prison guards. No loving family, few friends, boring work, and a soul-crushingly institutional environment.

This would be awful even without the fear of violence and prison rape about which society at large is already is far too cavalier. PFC Manning would also earn himself a dishonorable discharge from the military, a permanent stain on his character and reputation which he would carry for the rest of his life even after completing his prison sentence. He will have lost his future.

You would not voluntarily submit to this, nor would I. This is the price, and the threat, for violating society's standards of minimally acceptable behavior. It is the penalty for betraying one's country, one's word, one's honor. And if Manning is convicted of his crimes, we will be justified in doing these things to him.

What's more, there are good reasons to hold accused prisoners in confinement. Some are flight risks. Others may be difficult to relocate by the time of trial. Others have demonstrated that they are dangerous or are likely to engage in conduct contrary to the interests of justice, like by intimidating people who might be witnesses against them at trial. Some just plain can't post bail. So I have no particular beef with the idea that PFC Manning should be incarcerated pending trial.

So it's not that Manning needs to be treated with kid gloves; I'm not saying that we should put him up in the Hilton or even let him go free. But when a legitimate question can be raised that a man is being tortured, we've crossed the line from acceptable to unacceptable behavior.

"Torture?" you ask. "Is solitary confinement really 'torture'"? Maybe yes, maybe no. You may recall that the term "torture" is defined by law:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ... .

Anti-depressants are mind-altering substances. Granted that in many instances they are administered for therapeutic rather than punitive purposes and many people take them voluntarily. Prolonged isolation from social contact may, and often do, have the effect of "disrupting profoundly the senses or personality" of the person so treated; prolonged confinement and deprivation of interaction with other people very often has the effect of causing depression on the person so deprived.

Solitary confinement of a prisoner need not be "torture" if it is imposed as a "lawful sanction" for something. "Sanction" indicates that someone has done something wrong to earn this treatment; it is a phrase laden with implications of punishment. The government is not yet in a position to impose a "lawful sanction" on PFC Manning because PFC Manning has not yet been convicted of any crime; he has not shown any propensity to violence while in confinement.

So is this "torture"? What I don't know is the intent of Manning's jailers; this is not readily ascertainable and I hesitate to rely on Greenwald's article alone to determine this. But the objective, verified* facts of Manning's treatment are not in substantial dispute; he is, in fact, being treated this way. Using the definition of 18 U.S.C. 2340, it sure looks like torture. If the intent is to make Manning's life behind bars uncomfortable, then yes, this is torture.

Once we started saying "Sometimes torture is morally justifiable," that led to us saying "Some prisoners have done things so bad that they deserve to be tortured," and now, we're at the point that there is a massive shrugging-off of the fact that a man who has been convicted of no crime, a man we ought to presume is innocent, is being treated thus for no apparent good reason.

I have said for a long time that we ought not to torture our prisoners -- not because they don't deserve it, and not because we would expect to be treated so well were positions reversed, and not because torture is ineffective (although that is subject to at least reasonable debate), but because torture is contrary to our own collective moral standards. We should not torture, because we are better than that and for no other reason.

When we betray our own standards once, it becomes easier to betray them later. Society's disregard of such treatment of a presumptively innocent man is the next step down that road. That is why the rule should be simple and absolute: no torture, ever.

Again, this might not be torture as that term is legally defined. But it is also not a good example of how we ought to treat someone who has not yet been convicted of any crime. Whether it's torture or not, we have a Constitutional prohibition on cruel and unusual punishments. I rather doubt that most other prisoners in this brig are getting treated the way Manning is. I rather suspect that his treatment is motivated by a desire to inflict suffering for the sake of inflicting suffering -- the very definition of cruelty.

Let PFC Manning be treated like any other accused but as-yet-unconvicted military prisoner. Let him stand trial, and if convicted, let him then receive the full punishment specified by law. But let us not, in our zeal to see a crime punished, lose sight of our own ideals.


* Greenwald's article linked above accuses the military prison of denying Manning access to news and other current information in the one hour per day of relief from solitary confinement allowed to him. Manning's jailers dispute this, and only this, portion of Greenwald's factual reporting; they also dispute Greenwald's characterization of the solitary confinement as "torture."

Stuxnet Triumphs

A computer virus (or more accurately, a worm) called Stuxnet has somehow infected the Iranian nuclear weapons program's computers. This is remarkable because the Iranians had apparently gone to extraordinary lengths to isolate their nuclear weapons development computer system from every other computer in the world; no hacker could have found a way in to that network from his living room in Yaroslavl or Philadelphia because there were no physical or ethernet connections between those computers and the internet. Yet somehow the virus got there.

And according to the Jersualem Post, this has set the Iranian nuclear weapons development program back by two solid years. Stuxnet has been as effective as an overt military strike against the weapons development program, and was somehow done without anyone firing a shot or anyone being killed.

No one will take credit for Stuxnet. There is speculation that it was developed by or at the behest of the Pentagon, or maybe by the Israeli Defense Forces, or who knows who else. But there is no doubt that Stuxnet was targeted directly at the Iranian nuclear program and whoever is responsible for it had conclusively demonstrated that the age of cyber-warfare is upon us.t

Do Judges Talk Too Damn Much?

This column suggests that judges should say nothing outside of the four corners of their opinions. But it levies its criticism at John Paul Stevens, David Souter, and Sandra Day O'Connor -- three retired Justices of the Supreme Court. I say, once they've retired, they're private citizens and have the same First Amendment rights as anyone else. Now, retired Justices occasionally still serve in a variety of judicial capacities and then should respect the canons of judicial ethics about public statements. They should also point to their opinions in cases that they had decided as the primary articulation of their reasoning and intent. But aside from that, yes, they should be free to comment on whatever they wish.

Celibate World Cup

It's still twelve years in the future, but I can't understand how the World Cup in Qatar could possibly be a success. I'm already baffled that a sport whose biggest fans come from Western Europe and South America -- none of whom are shy about drinking booze while partying and cheering on their teams -- would be asked to go to Qatar, a tiny nation dominated by Puritanical moral laws concerning alcohol to watch the World Cup. These are people who are going to want to drink while they party and cheer and sing.

And it gets worse -- gay fans have just been asked by international soccer's governing body to refrain from having sex while in Qatar to cheer on their teams. Which brings to mind the fact that Qatar's next door neighbor, Saudi Arabia, still has the death sentence on the books for sodomy -- a punishment which is still actually enforced from time to time. I don't know if Qatar imposes the death penalty for sodomy and it's reasonable to assume that Qatar's morals police will be asked to relax their enforcement during the tournament. But what's going on here is not soccer expanding its audience into a new region; it's shining a spotlight on the shortcomings of the nations in question.

Now, Qatar beat out other nations, most notably including the United States, for hosting the Cup. I hate being a sore loser about that despite the fact that our bid was clearly superior to Qatar's, but here's the fact: gay soccer fans from around the world, you're obviously not welcome in Qatar. But you (and your money) are welcome here in the USA! Please plan on coming in 2022. You'll find plenty of friendly fellow soccer fans here,* some great places to eat, and lots of fun things to do in between games. Your money is welcome here; if you're over 21 years of age, you can have a beer or wine or a cocktail if you feel like it; and unlike your would-be Qatari hosts, our law enforcement authorities don't care what you do behind closed doors with other consenting adults.

* Yes, we call football "soccer," which is what the English used to call it. We have our own kind of football, too, which if you learn a thing or two about it, you might enjoy. Some Brits, however, think of themselves as very clever for claiming that our sport should be called "hand egg." They are incorrect.

Wisdom From The Founders

Thanks to American Creation, we can credit a holiday recipe for eggnog to George Washington himself:

One quart cream, one quart milk, one dozen tablespoons sugar, one pint brandy, 1/2 pint rye whiskey, 1/2 pint Jamaica rum, 1/4 pint sherry—mix liquor first, then separate yolks and whites of eggs, add sugar to beaten yolks, mix well. Add milk and cream, slowly beating. Beat whites of eggs until stiff and fold slowly into mixture. Let set in cool place for several days. Taste frequently.

Sounds rich, Mr. President. And intensely alcoholic; by volume this eggnog is more than one-third booze. Not that those are bad things. My only criticism is that it looks like it lacks spice; a little cinnamon, ginger, and nutmeg would do it good.

This Is Why Textualism Is Better

Original intent is not a great primary approach to Constitutional interpretation. When you have a Justice of the Supreme Court seriously arguing that the Framers somehow didn't mean it when they amended the Constitution to guarantee individual rights and therefore we can, apparently, simply disregard the words they used, you're too far down the rabbit hole. Discerning original intent is very hard to discern from the historical record, and sometimes even counterproductive -- a look at how Title VII came to include women as a protected class is a good example of that.

You start with the words of the law. You understand what those words mean. If that's still not clear, then original intent is one thing you look to in order to flesh out ambiguities -- you also try to understand the policy objectives, the relationship of the government to the individual, and the goal of maximizing personal liberty.

Besides, I kind of think that Madison did mean it when he introduced and advocated for the Second Amendment. Justice Breyer's mistake is suggesting that Madison was of one mind on the issue; Madison, like everyone else, suffered from intellectual inconsistencies, blind spots in his thinking caused by his personal preferences clashing with his overarching philosophy, and was even capable of changing his mind or accepting compromises when the situation warranted it. Rare indeed is the person whose views do not evolve over time and Madison, who was first and foremost a politician, had a more supple ideology than he is widely given credit for.

Someone Would Have Greenlit This

In a world where television series inspire movies...

Movies can inspire a TV series!

Thing is, I have no doubt that were Desmond Llewelyn still alive, someone would have pitched this by now. Indeed, it's only the dark, serious reboot of the James Bond franchise (and hopefully John Cleese's good taste) that is stopping it from happening right now.

Moral Vigilantes

This is what happens when a society succumbs to the pressure of fanatic religious moralism to the point that the ethic of minding your own business is discarded. Granted, Indonesia does not have a profound cultural or political tradition of privacy. But what we see here is a case of a religious majority imposing its ethics on those who do not share their beliefs -- and it is violent, cruel, and harmful to the society's economic and political growth. We should remember that in a free society, moral repugnance is not a good enough reason to outlaw something.

Why I Hate Wrong Numbers

The Wife goes to sleep pretty early most nights -- generally before 8:00.

Often, when she or someone else calls me on my cell phone, I can't hear it, so I turn the volume up as loud as it will go. Only The Wife has a special ringtone; everyone else rings in with the Miami Vice theme because I think it's a cool piece of music and it seems to induce smiles in people of my generation.

I try, as hard as I can, to remember to silence the phone at night when I put the it away to charge up. But I'm not perfect and forget to do this sometimes. And of course, only on the nights when I forget to do this does someone misdial the phone and call me at 9:00. So then I have to leap out of my chair and spill the computer dangerously on the floor, go running for the phone, and try to silence it as soon as I can.

Of course I never get there in time to prevent The Wife from waking up and asking me if I hate her. And then I feel guilty the rest of the night. Because someone I don't know dialed a wrong number.

Hudson On Healthcare

U.S. District Judge Henry E. Hudson of the Eastern District of Virginia has found that the "individual mandate" portion of the healthcare reform act is unconstitutional. His is sure to not be the last word on this issue. What makes it interesting is the grounds -- not buying health insurance is not interstate commerce and therefore beyond the ability of Congress to regulate under the Commerce Clause.

To my knowledge, only two other kinds of human activity have been found to not be interstate commerce in the modern era. Those things are 1) a high school student carrying a concealed pistol while at school, absent specific Congressional findings about the effect on commerce of such activity (United States v. Lopez (1995) 514 U.S. 549) , and 2) a Federal civil lawsuit for nonconsensual sexual contact (United States v. Morrison (2000) 529 U.S. 598). Note that the state court grand jury found insufficient evidence to authorize a charge of rape in Morrison, denying us the ability to describe what sounds like "rape" with that word. More importantly, note how these two kinds of activities are criminal and indeed likely violent in nature.

Compare this to growing and eating wheat rather than selling it under a comprehensive scheme of economic regulation (Wickard v. Filburn (1942) 317 U.S. 111) and smoking marijuana given away for free for medicinal purposes (Gonzales v. Raich (2005) 545 U.S. 1), which the Court has ruled do affect interstate commerce, under the "aggregation theory" -- the idea be being that while an individual transaction has no perceptible economic effect on commerce, if everyone did it, there would be a significant effect on commerce.

As between these four seminal cases, I would have thought that not buying health insurance in the 2010's was most similar to not selling wheat in the 1930's. But Judge Hudson's key reasoning is this:

The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. Gonzales, 545 U.S. at 22, 125 S.Ct. at 2209. This even extends to noneconomic activity closely connected to the intended market. Hoffman v. Hunt, 125 F.3d 575, 587-88 (4th Cir. 1997). But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.⁷ In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

Slip op. at 23-24. By Judge Hudson's logic, then, noneconomic activity closely connected to the intended market, triggered by some sort of self-initiated action on the part of the person thus regulated, is a valid thing for Congress to regulate -- which would seem to suggest that taking a gun to school ought to be within Congress' powers to regulate. There is little doubt that Lopez "self-initiated" bringing his gun to school and there seems little doubt that if a teacher is thus deterred from going to school for fear of being shot by Lopez, there is an economic effect (the teacher isn't paid) which if repeated and aggregated over a large pool of people, would drag on the economy.

What's more, footnote 7 in the opinion reads: “The collective effect of an aggregate of such inactivity still falls short of the constitutional mark.” Here, I just can't see where Judge Hudson is coming from. The larger the pool of insured in an insurance market, the more diluted individual risks become and thus the amount of premium per policyholder needed to cover claims decreases. If large numbers of people voluntarily abstain from purchasing a particular kind of insurance, the premium per policyholder rises. This is not a hugely complex concept -- and even if it is ultimately proven incorrect, Congress is clearly within its discretion and authority to be thus incorrect because the idea is not so far out of left field as to be "irrational."

As an alternative, the Government argued that the individual mandate is enforced by a "penalty" that should be considered a "tax," but Judge Hudson looked at the exact meaning of those phrases -- a "penalty" is levied in response to an unlawful act or omission, while a "tax" is a burden imposed to generate revenue for the government -- and concluded from legislative history, legislative text, and political statements of both Congressional leaders and the White House that the claim that this enforcement mechanism is a "tax" is a "transparent afterthought" and therefore not to be credited. It is a penalty, according to the Court, a penalty designed to punish conduct deemed undesirable by Congress, viz., not buying health insurance -- and since the conduct deemed undesirable is not itself something that Congress can regulate, Congress lacks power to impose a penalty for it. This portion of the reasoning seems sound to me.

As I noted above, this is not the end of the road for the individual mandate provision of the healthcare reform act. It does demonstrate that the idea that the law exceeds Federal power is not a crazy one, it is persuasive and serious and should be carefully weighed. To damn modern commerce clause jurisprudence as "unprincipled" is only to say that it is like much other Constitutional jurisprudence, in that much depends on the policy desirability of the law, the political mood at the time of the decision, and the general philosophical cast of the nine Justices who eventually and inevitably will render a final decision.

I don't particularly want the individual mandate to be Constitutional. And I'm pleased that the bench is taking seriously the notion that there are Constitutional limits on Congress' powers. But I have a hard time squaring Judge Hudson's reasoning with the outstanding jurisprudence. Unless there is going to be a new contour in Commerce Clause jurisprudence written in by this case, I would have ruled that this was near the limits of, but still within, Congress' Commerce power.