Must Have Been Quite A Party

On the morning of July 4th, I got up as I usually do and let the dogs out to do their business. Only they both ran straight for the wall of the back yard, the one that adjoins the street. They both made a beeline for the same spot, tails wagging, and then their tails stopped wagging as they smelled something.

"Okay, what's this, now?" I thought. I didn't want them eating a dead bird or a beer can or something like that. Only it wasn't those things. It was a single shoe. A woman's chunky high-heeled shoe, made or covered with purple suede. It looked a lot like the specimen to the left.

I grabbed it from the dogs and got them back in the house. Then I kind of forgot about it because The Wife and I were having a nice morning outside. She went in to get a cup of coffee and said someone was knocking on the door and because I have less modesty about that sort of thing, she wanted me to answer it.

An attractive young lady, maybe 21 years old, was there. She was not wearing any makeup and had on casual clothes, but I got the idea that when she put some attention into her appearance, she probably turned some heads. "Excuse me. I know this sounds weird, but I think my shoe got thrown in your yard last night."

"I've got it right here. I rescued it from my dogs, they're, um, aggressive chewers. Hang on." I gave the girl her shoe back, and she was happy.

That's Why We Have Joe Biden, After All

If Steve Jobs dies any time soon, will the board of directors at Apple prop him up and carry his corpse around like Weekend at Bernie's? At this point, I think they'd have to, in order to preserve shareholder value. This is the direct result of not-good leadership by Jobs. Seems to me that if Jobs were doing a good job as a leader, Apple would be in a strong enough position to continue as a viable company in his absence. No one, not even the guy at the top, should be indispensible -- and it's the responsibility of the guy at the top to see to it that this is a reality.

Who Do They Think They Are Just Coming Here Looking For Economic Opportunity And Stealing Our Resources, Anyway?

Joe Wurzelbacher spoke at a "tea party" event over this 4th of July weekend. I thought the tea parties were to protest high taxes, high government spending, intrusive regulation of day-to-day activities, and most of all, the ever-accumulating Federal debt. But apparently I missed the part that's about immigration (and not just of the illegal variety, either):

"I believe we need to spend a little more on illegal immigrants get them the (expletive) out of our (expletive) country, and close the borders down," Wurzelbacher said. "We can do it. We’ve got the greatest military in the world and you’re telling me we can’t close our borders- that’s just ridiculous."

I think the guy in the picture to the left would agree.

Damn I Forgot David Carradine

Too many celebrity deaths in June. Of course, Michael Jackson wins the poll.

No Monopoly

The only read I get from the Dallas Morning News is that less than the 50,000 expected showed up for "America's Tea Party" on the Fourth. Missing from the coverage is any estimate for the actual number. One is left with the impression -- "only a smattering of people" -- that almost no one showed up. But I can't tell one way or the other. Proving that crappy, incomplete, and often misleading coverage is not confined to the Los Angeles Fish Wrapper.

Drool-Inducing

Indian Pasta. Not in a million years would I have thought to have done anything like this. Much less found ricotta made from goat's milk.

Homeopathy: The Drama

Whoa. That's strong stuff.

Hat tip to Science-Based Medicine.

Reverse Pareidolia

If I Volunteer To Rescue Animals, What's My Cut Of The Action?

When you Christians get raptured, you know that I won't be. I'm an atheist and I have blasphemed as set forth in Mark 3:29.* So I wonder what share of the fee I get for working for these people?


* I hereby curse and deny the existence of the Holy Spirit.

A Nation Of Lawyers

Were I to suggest that the American War of Independence was fought for legal procedure, I would clearly overstate my case. But the precipitating causes of that war were, to a very significant degree, rooted in issues of legal procedure, and in particular criminal procedure. On a day-to-day basis, laypeople are familiar with this sort of thing only in the Miranda warning they see on cop shows and in the movies. I hope that my Readers come here looking for something a little deeper than that.

Last year at this time, I broke down the Declaration, sentence by sentence, to help Readers understand what it is* really about. Today, I ask you to consider these items from the "list of grievances" portion of the Declaration of Independence -- the reasons why the colonists felt justified in rebelling against King and country -- and what they say about the kind of people those colonists were:

• [King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good.
• He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
• He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
• He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
• He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
• He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
• He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
• He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
• He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.
• For protecting [British soldiers], by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States.
• For depriving us in many cases, of the benefit of Trial by Jury.
• For transporting us beyond Seas to be tried for pretended offences.
• For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.
• For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
• For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
• He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

Of matters of import and to political sovereignty, which is to say self-government, Jefferson lists a smaller number:

• [The King] has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
• He has affected to render the Military independent of and superior to the Civil Power.
• For quartering large bodies of armed troops among us.
• For cutting off our Trade with all parts of the world.
• For imposing Taxes on us without our Consent.
• He has abdicated Government here, by declaring us out of his Protection and waging War against us.
• He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
• He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
• He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

By noting a quantitative diminishment in the colonists' grievances against the King, I do not intend to imply a qualitative diminishment; the imposition of martial law was and remains obnoxious to notions of decency and basic civil rights under any system of government. Yet even these, in many ways, are related in a more than tangential way to the idea of the government itself being subject to law rather than the arbitrary application of the will of the sovereign.

We tend to think of the Declaration of Independence as a purely political act on the part of the Founders, and this is at best an incomplete vision of what happened. Not only a political act, the Declaration of Independence was a statement about the importance of the rule of law.

The Declaration of Independence is a powerful statement of the ideals deepest to Americans and a claim that they are so important that we Americans are willing to fight and die to preserve them. It is rightfully thought of as an inspiration to the rest of the world and to future generations of those ideals. It speaks, extensively, on what the rule of law is and how the King had violated its principles. It meditates on how laws are to be made, enforced, and executed. And it dwells on this subject more than it does any other -- more than it articulates a political theory.

When I was sworn in to the bar, the judge administering the oath distinguished between "attorneys" and "lawyers." An "attorney," he explained, is someone who acts on behalf of someone else. That day, my friends and I were becoming attorneys; we were becoming licensed by the state to act on behalf of other people in the judicial system. But it was more important, the judge said, that we understand that a "lawyer" is someone who is knowledgeable about the law, who acts as a guardian and protector of the law. He told us that he was confident we would all go forth and be good attorneys -- but our challenge was to also be good lawyers.

As I read the Declaration of Independence, it says that we are, ultimately, a nation of lawyers -- a people who have dedicated themselves to the rule of law.

Happy Independence Day.**


* Please note my deliberate use of the present tense.
** Global Readers, of course, are welcome to join America's celebration and on behalf of my fellow Americans, I hope that you too live in societies that cherish the rule of law.

Well Now That's Interesting

Gee, why do you think she's doing this?

The Third System Is Sometimes The Best

Public Defender Sarah makes an eminently reasonable observation about the prosecution of Lori Drew. The civil justice system is significantly more flexible than the criminal justice system, and for good reason.

The downside to the civil courts is that Lori Drew probably has no money and no substantial assets. While she did something that at minimum comes close to the tort of intentional infliction of emotional distress, I wouldn't sue her. Not that I don't think I could win, but I don't think I could collect.

But on the criminal side of things, it seems to me that over-zealous prosecutors whose desire for some limelight to serve as nitrous oxide for their careers give themselves significant blind spots to the big picture. A prosecutor's client is not the government, it is not the victim, it is not the police, it is not the conviction. The prosecutor's client should be justice. Too often, it seems prosecutors act as though their client is the pleasure of the voters. Courts are not supposed to be democratic institutions and I remain convinced that democracy can corrupt the courts.

That's especially true when you have judges who let themselves grow afraid of public opinion. Sarah rightly takes the judge in the Lori Drew case to task -- he could and should have thrown the prosecution out at an early stage because no crime was committed. A despicable act was committed yes, but not a criminal one. There's a difference. The judge in this case is a federal judge with a lifetime appointment -- he's supposed to be insulated from that political pressure.

But that gets us away from the point -- she committed no crime and should not have been criminally prosecuted, and she's judgment proof so she can't really be gone after in the civil courts. So how can justice be meted out to Lori Drew? My answer is that she will get -- and has already got -- her punishment in the court of public opinion. When we think about justice, we often forget that shame is, or ought to be, a significant thing. There are things people are ashamed of that they shouldn't be (like having sexual desires) and things they aren't ashamed of but should be (like cheating on their taxes). Lori Drew's punishment for her despicable act should be, and is, humiliation, public opprobrium. Every time she goes to Wal-Mart and people sneer at her, that's her punishment.

Asteroids

Hat tip to Shakesville:

Universal has won a four-studio bidding war to pick up the film rights to the classic Atari video game "Asteroids." Matthew Lopez will write the script for the feature adaptation, which will be produced by Lorenzo di Bonaventura.

* * *

As opposed to today's games, there is no story line or fancy world-building mythology, so the studio would be creating a plot from scratch. Universal, however, is used to that development process, as it's in the middle of doing just that for several of the Hasbro board game properties it is translating to the big screen, such as "Battleship" and "Candyland."

Yes, that "Asteroids." I'll call this the Transformers effect. You can take anything that is popular, or once was popular, with kids, and make a movie out of it, and it stands a good chance of getting green-lit, because someone will think it stands a good chance of making money. Which is why there was a "four studio bidding war" for the film rights to a thirty-year-old video game that lacked even the semblance of a story.

Why Religious People Should Stop Telling Omar Stories

I came across this story arising from near Portland, Oregon today and was moved to finally understand something I've read about and resisted in the past.

[Fifteen-month-old] Ava Worthington died March 2, 2008, after her parents and other members of the Followers of Christ tried to treat her with faith healing.

Ava's father, who goes by Brent, his middle name, described what happened:

Ava came down with what appeared to be a cold or the flu on a Tuesday. By Saturday, her breathing became labored and the family turned to its traditional faith-healing rituals, praying, fasting, anointing the body with oil, administering diluted wine and laying on of hands.

By Sunday, Brent Worthington said he thought there was "a possibility" his daughter was so sick she could die. Then, after a final session of laying on of hands at about 5 p.m., "she perked up," he said. She grabbed her bottle and "took some food."

"She was peaceful; she was rested," Worthington said.

Two hours later Ava was dead.

What's missing here? Doctors, that's what. You can imagine that one of the first questions police asked when investigating the death of this infant was, "Why didn't you take her to a doctor?" The father responded:

He said no one in his immediate family has ever been to a doctor or used prescription or over-the-counter medicine. "It's not something we believe in."

Her parents have been charged with manslaughter. It is an odd feeling indeed to feel very sorry for this couple, who lost a daughter they clearly loved, and at the same time feel so angry at them for letting this happen. But they clearly deserve the prosecution.

It took six days for this girl to die, and if you read the story in detail you'll see that they were aware of a growth in the girl's neck that obstructed her breathing -- it was a benign tumor, the autopsy demonstrated after her death, but still a problem because it made breathing difficult for an inexperienced and weak breather (as all infants are).

This shows that the parents were very aware that their daughter had serious medical problems. They paid attention to her and attempted a misguided form of assistance. But the assistance they offered was primitive, ritualistic magic. It got dressed up as religion but the form of the religion hardly matters. They could have been sticking pins in a doll, rolling dice made out of chicken bones, or mixing bat gall with boiling mercury for all I care. They should have taken her to a doctor. If they had, it is probable to the point of near-certainty that she would be alive today.

Pneumonia and blood infection are easily treatable with antibiotics and the success rate of such a treatment is phenomenally high. The success rate for prayer as a medical treatment is statistically identical to the success rate for no treatment at all. Which is no wonder -- because in reality, prayer alone is no treatment at all.

As I read this and wrote about it, I began to think about friends who reported prayer working to cure seemingly terrible diseases. I've heard these stories more than once, from people I like, people I trust, people I know would not lie, people of greater than average intelligence. The story always takes a particular form, and so it is possible for me to write an amalgam of them, describing a hypothetical patient I'll name "Omar" for storytelling purposes:

Omar was very, very sick. He had been diagnosed with Stage IV leukemia and was advancing to Stage V. That's the point where the doctors stop trying to cure you and just give you painkillers until you die. They said he only had a few weeks and he was making arrangements to put his estate in order before he passed. But in doing that, he asked for some us from the church community to gather around his hospital bed and pray with him. I'd only known Omar a little bit from church, but me and a lot of other congregants got together and came to the hospital with our pastor. We held hands and the pastor led us in a prayer. We asked God to heal Omar and to make him better, we asked to keep him with us for a while longer, and the pastor reminded us that we were praying in Jesus' name. I felt such an outpouring of love for Omar there in that room. Over the next couple of weeks, Omar began to get stronger. Eventually, he started walking again. The doctors were amazed, they had no explanation for what happened. About a month after we prayed over Omar, they couldn't find any trace of the leukemia in his blood at all, and they sent him home. Omar is alive today and it's because of the power of prayer and the miraculous intervention of Jesus.

It would defy my belief if you, good Reader, had not heard this story at least once before reading it here -- probably told to you by someone you know personally and maybe by someone whose judgment you otherwise would trust. I've been told this story at least twenty times in my life, by personal friends.

(Oh, it's also almost always cancer, by the way. It's never an amputation. Faith healing doesn't seem to work on amputees. That should be the test: what evidence would I need to see in order to start believing in God? If I saw a group of people gather and pray for an amputee, and that amputee grew back a missing limb, then yes, I'd seriously consider the possibility of divine intervention. Not an idea original to me, but it's a good enough one that I'll adopt it.)

In the past, I've discounted the stories but not made strong challenges to them. After all, the people in question derive strength, pleasure, community, and moral fortitude from their religions, so their religious activity can't be all bad. A misguided vestige from a more primitive time in history, but still serving an important social function nevertheless.

And my friends who have told me these stories aren't crazy people -- they aren't handling snakes, they aren't stockpiling weapons and building fortresses, they aren't sacrificing live animals, they aren't strapping bombs to their chests and blowing up train stations. They aren't suggesting that "Omar" was wrong or foolish to have sought conventional medical treatment. They're just saying that conventional medical treatment wasn't enough in his case; what Omar needed, in the story, was the intervention of God with the help of prayerful friends.

I want to remain friends with these people because they are good people, good friends. So the most I've done in the past is to point out that maybe we don't fully understand cancer yet, and maybe some other treatment reached a critical point and the disease went into remission right about the time of the prayer session. This invariably fails to convince the religious person -- the idea that maybe fifty treatments of drugs took several weeks to cumulate in a patient's system, and even after stopping the drug treatment the medicine that had accumulated continued to work, and that the medicine, through a mechanism not understood by modern medical science, caused such a sudden turnaround, is not nearly as sexy an idea as prayer.

These religious folks want to believe the prayer worked. Consequently, the cause-and-effect relationship seems immediate and therefore irrefutable. Selection and timing fallacies enter their thought. And the idea that the doctor doesn't know everything about cancer while still treating the patient is somehow terrifying. Another preference fallacy there -- I don't want the doctor to have limited power, therefore he doesn't, and therefore he represents everything science knows and will ever know.

Unlike God, Doctors are not omniscient, medical science is an impressive but still finite body of knowledge, and there are challenges that are yet beyond their ability to resolve. There always will be. Also unlike God, doctors and medical science are real, not just comforting fairy tales. Also unlike God, medical science can produce results, not dead fifteen-month-old babies.

What this story has moved me to understand is that my well-meaning friends -- those nice people who gather around and pray for people like "Omar" -- are enabling the crazies. Their stories of gentle, prayerful, and miraculous cures provide intellectual and moral support for the more crazy and extreme claims of magic-dressed-up-as-religion. If there weren't tens of thousands of "Omar stories" out there, there would be a lot fewer stories like the one from Portland where a deeply-religious parent eschews medical treatment entirely to resort to incantations to cure a readily-treatable disease.

By telling "Omar stories," these well-meaning, otherwise-reasonable people are implying that the decision made by these Portland parents was reasonable. After all, in this guy's personal experience, prayer and ritual had always worked in the past. He had no reason to think it wouldn't work on his daughter. But he should have been in an environment were there were people around him who would have told him that he was acting unreasonably. He should not have been in an environment were he was constantly told, again and again, that prayer alone can heal grave illnesses. This notion should never have seemed reasonable to him. And "Omar stories" make that sort of idea seem reasonable. That is the harm of telling "Omar stories," what Richard Dawkins called the "enabling" effect of moderate religion in The God Delusion.

Yes, it's possible for a religious person to use common sense and good judgment, and take their sick children to doctors. The vast majority of them do just that. They don't stop being religious when they do it, either. But here's my prediction: the rate of successful treatment for religious parents who use medical science in addition to praying for their sick children will be statistically identical to the success rate of non-religious parents who use medical treatment alone. I'll predict further: the rate of successful treatment for parents who use religion alone, and no medical science, to treat their sick children, will the statistically identical to the success rate of parents who do not treat their children at all.

Anyone want to put some money down on those predictions? Any takers?

Hat tip to Hemant Mehta.

Jenny Sanford And Rush Limbaugh Blame Gay Marriage For Husband's Infidelity

Wow. Straight out of South Carolina:

“Of course I’m not saying that Mark is gay,” [Ms.] Sanford said, “but he may as well be. The moral decay in this country has claimed another victim and this time it was my family. Our marriage was perfect until these laws started passing around the country. Clearly the slow dissolution of the sanctity of marriage in America seeped into Mark’s psyche until he no longer felt compelled to abide by our vows.”

Social conservatives were quick to show their support for the first lady’s statement.

“It’s finally happened,” said Rush Limbaugh, conservative radio personality. “America, I’ve been warning you for years that gay marriage would destroy the American family and look… there they are, a husband, wife, and four children — destroyed. When is this going to stop America? When will the liberals be satisfied? When all the marriages break up? This wasn’t Mark Sanford’s fault, this was Ted Kennedy’s fault. Sanford didn’t cheapen the value of marriage, he was victimized by the cheapening of marriage.”

IMPORTANT MESSAGE TO THE OBTUSE FOLLOWS, HIGHLIGHT TO READ: It's not from The Onion but yes, the linked article is actually a deliciously deadpan parody and therefore, in its own subversive way, even funnier than the venerable Madison humor institution that consistently puts the Harvard Lampoon to shame. This is a joke, but do you doubt for even a nanosecond that there are actually people who would seriously believe this if they were told it?

Two Proposed Constitutional Amendments

While I'm very down on politics this morning, I'm not down at all on our Constitution, which I still think is a colossal monument to some of the best thinking about government that has ever been done. And one of the things that is so great about it is that the Framers did not anticipate that they were laying down rules to be set in stone for all time -- they invited future generations to consider modifying those rules to meet the needs and challenges of their time.

So I do not feel in the least bit bad about throwing out, for discussion, the above two amendments to the U.S. Constitution. I think they are good ideas. I welcome criticism, feedback, or proposed amendments. Readers, if you were in a position to vote on these ideas, would you sign off on them?

First, a proposal to modify the Presidential line of succession. Nancy Pelosi's recent public statements have convinced me that, in a worst-case scenario of both the President and Vice-President being taken out of office at the same time -- like if the bad guys drop one on the White House -- we must make absolutely sure that Speaker Pelosi does not become President Pelosi.

On a somewhat more serious note, the skill set that one needs to succeed in the House of Representatives, or any other large deliberative and legislative body, is significantly different than the skill set one needs to succeed as an executive leader. So setting the Presidential line of succession to pass through the top members of the two houses of Congress strikes me as unwise in today's world. So if the President and Vice President are "removed from office" (that is, killed at the same time) I would rather see an interrex take over for the purpose of calling a special election and letting the public pick a new President through the elective process.

Section 1:

In the event that the office of the President and the Vice President are simultaneously vacant, the Speaker of the House of Representatives shall be the Acting President. While serving as Acting President, the Speaker shall not exercise or discharge any duty in Congress. The Speaker shall then set a date for a special election for persons to fill the remaining term of President and Vice President as soon as is practicable, and unless the United States be at war with another nation that election shall be not later than thirty days after the Speaker assumes the duties of Acting President.

The special election shall proceed according to the laws as set forth by Congress and the several states for regular elections of Presidential electors, excepting only the date of election of electors. The Electors shall meet within two weeks of the conclusion of the special election, and the results of their election shall be transmitted to Congress, where the results counted, within one week thereafter. Neither the Speaker nor any person who, having previously served six or more years' time as President of the United States, shall be eligible to receive any votes of the Electoral College in the special election.

The winner of the Electoral College shall become President, and thereafter shall take the oath of office, within one week’s time of Congress counting and announcing the results of the Electoral College. Upon the newly-elected President's assumption of office, the Speaker shall no longer be Acting President and shall resume service in Congress.

The President and Vice President thus elected shall serve the balance of the remaining term of office to which the previous President had been entitled to serve. If the newly-elected President’s term of service is greater than two years in duration, the President thus elected shall be eligible to run for re-election to a single four-year term as President thereafter.

Section 2:

Within ten days of assuming the office of President by any manner other than election, the President shall then nominate a new Vice President, who shall immediately assume the office of Acting Vice President and shall become Vice President unless a majority of the Senate shall object to the nomination within thirty days of the President’s nomination.

This section shall not be operative if the President assumes office within thirty days of the date set for the election of President of the United States.

Section 2 is in there because we've had some significant periods of time in our history in which the office of Vice President has been left vacant. My objective in this proposed amendment is to not allow the Speaker of the House -- who was elected by only a fraction of the citizens of a single state and who assumed this position of Constitutional prominence by virtue of doing whatever it takes to get ahead in Congress, which seems to be bringing home public largesse to particular localities in the nation and appealing to parochial rather than national concerns -- to execute the power of the Presidency for a significant period of time.

And second, while I'm thinking about tinkering around with the mechanisms and structures of our government, let me advance, again, my proposal to streamline the process of filling judicial vacancies, and imposing long term limits on federal judges. I anticipate that this would result in a federal judiciary that is very slightly more in step with the current ebb and flow of national politics, but still an institution insulated from the rough and tumble of day-to-day political battles.

Section 1:

The President shall appoint judges to the Supreme Court and to the lesser Courts of the United States by way of transmitting a nomination to the Senate. All judges thus appointed shall be citizens of the United States at the time of their appointment and shall not have been convicted of any felony or crime of moral turpitude. Any person thus appointed who, having been admitted ten years or more to practice law pursuant to the laws of any of the several States, shall assume the office thus appointed unless a majority of the Senate transmits to the President a request to advise and consent within thirty days after the President transmits the nomination. If the Senate thus acts, the Senate shall thereafter vote to confirm or reject the nomination within ninety days of the President’s nomination by majority vote, and if the Senate fails to confirm the nomination thereafter, the nomination shall be rejected.

Section 2:

All judges appointed to the Supreme Court and to the lesser Courts of the United States shall serve a term of eighteen years. Upon completion of this term, the judge thus appointed shall not be eligible for re-nomination to the same Court thereafter for a period of five years. Excepted, any person holding judicial office at the time of the adoption of this Amendment, whose term of service shall be unaffected thereby.

Not entirely coincidentally, eighteen years is both the amount of time set by Congress for full lifetime judicial pensions to vest and something close to the average term of actual service under the present regime of lifetime appointments.

To Our Friends Up North

Happy Canada Day to our friends from the Great White North, eh! On this day in 1867, Queen Victoria gave the colonies of Canada, New Brunswick, and Nova Scotia the right to form a confederation, which also split the colony of Canada into two provinces, Ontario and Quebec, and fixed Ottawa as the centre of government. Effectively, this spun Canada off as a nation independent from the United Kingdom.

Absolute political sovereignty did not come until 1982, however, with passage of the Constitution Act fully vesting political control of Canada in its own Parliament. The Queen remains the titular head of state since Canada remains a member of the British Commonwealth of Nations, but neither she nor the British Parliament exercise even a vestige of political power in Canada -- whatever political power remains in the hands of the Queen is exercised by Canada's Governor-General, who is selected by Parliament.

So enjoy your barbeques and baseball and day off work and school, Canucks. We'll be having the same sort of fun this weekend to celebrate our own independence later this week.

What The Supreme Court Didn't Do And What I Think It Will Do

Everyone's talking about Ricci v. DeStefano, the affirmative action case. And with good reason; it's interesting, ground-breaking, and has implications for the Sonia Sotomayor nomination (since it was her ruling that was overruled by the Supremes).

But one thing that surprises me a little bit is the lack of action in the case of Salazar v. Buono. I thought it would be the big religion case of the term, but the Supremes kicked it over to next year. Look for oral argument to be scheduled in late October or maybe early November and don't expect a ruling until the end of next year's term.

The case involves a cross that you can (or rather, could) see on the top of a rock formation called "Sunrise Hill" while driving along Interstate 15 between Barstow and Las Vegas. Mojave National Preserve terminates within yards of the interstate and Sunrise Hill is located within the Preserve. The picture above is a government photograph of the cross taken before the lawsuit was filed.

Originally, the land was owned by a private person, and he put up a large cross that was visible from the road as a memorial to soldiers killed in the Great War. (No problem, by the way. Private land, private display, that's free speech.) Then, the land passed to the control of the Federal government. It was initially administered by the BLM and under President Clinton, converted to a national park. During this time, vandals would periodically destroy the cross or portions of it, and volunteers would come and rebuild it.

In 1999, a Utah man asked to erect a Buddhist shrine next to the cross, and the National Park Service refused that request. Then, this lawsuit was filed by the ACLU on behalf of a variety of people, challenging the presence and maintenance of the cross as a violation of the Establishment Clause. Congress responded to the lawsuit by passing a private law, swapping a one-acre parcel including the cross for a five-acre parcel elsewhere within the Preserve, so as to return the land to private status.

Presently, the cross is concealed under a tarp on orders of the Ninth Circuit, which ruled that its presence is an Establishment in violation of the First Amendment. However, every year at Easter, volunteers hike out to the cross, take the tarp down, hold a Christian religious service, and then the tarp is put back up (whether by the volunteers or Federal employees is not clear to me). The National Park Service rules technically forbid this, but in practice, the park rangers tolerate it because it is a non-violent and transitory use of the public's land.

Establishment Clause jurisprudence in its current form is in a terrible, nearly indecipherable mess. There are three ways of looking at Establishment Clause questions:

First, there is the Lemon Test. Three questions have to be answered are: First, does the government action have a secular purpose? If so, does the governmental action neither inhibit nor advance religion? If so, does the governmental action avoid creating an "excessive entanglement" between government and religion? If so, the action is Constitutionally permissible under this almost forty-year old case. Lemon has been criticized for the subjective nature of its three-part test, especially the last prong, but it has never been overruled and is often applied to governmental activity. Debatably, it has been narrowed by another case called Agostini v. Felton, which applied a simpler form of the Lemon test, effectively omitting the third prong.

Second, there is the "endorsement" test, which had been favored by Justice Sandra Day O'Connor during her service on the Court. The idea was originally articulated in her concurring opinion in the case of Lynch v. Donnelly. This asks whether a reasonable observer would conclude that the government was endorsing a particular religion or had an intent to do so. Intent and endorsement, in turn, are inherently fact-based inquiries, meaning that under this test, there is no bright-line rule but rather a case-by-case analysis. As always with Justice O'Connor's opinions, the idea sounds reasonable and useful, but fails to provide a clear rule that would guide courts and legislatures.

Finally, there is what has been called the "coercion" test, which was fleshed out by Justice Anthony Kennedy in Allegheny County v. ACLU of Pittsburgh, again in a concurring opinion. (Both Lynch and Allegheny County were cases involving challenges to nativity scenes.) A "coercion" analysis would presume that governmental activity with respect to religion is valid, unless the challenger can demonstrate that the government support of religion is so strong as to constitute the creation of a state church, or if the governmental action compels someone to either participate in or support a religious activity against their will. This is a relatively narrow reading of the Establishment Clause, but it also suffers from the same subjectivity problems that the others do -- there are examples of judges (and Supreme Court Justices) purporting to apply the same version of this test and reaching different results.

Here's how I think we'll see Salazar v. Buono break down. I predict that by a 6-3 decision, the government will win, and the cross will be allowed to stand, uncovered.

Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor will rule that because the cross was originally on private land, the government took control of it "as is" and could maintain the land in the condition in which it was found. The land swap was a rational and appropriate way for the government to realize and advance that objective, and to preserve a monument that has acquired historical significance. Because it was unquestionably a valid form of speech when it was created, it is okay now. There will be much talk about the cross' "mere presence" on government land as not conveying a message to a reasonable observer that the government is endorsing Christianity, with painstakingly researched factual references to religious symbols appearing on other sorts of Federal land or buildings throughout history.

While I am pretty confident they will agree on this reasoning and this result, I am much less confident that they will resolve the tension and confusion in the jurisprudence. They will not articulate a single standard for the evaluation of Establishment Clause cases. Nor is it entirely out of my mind that all six of these Justices are practicing Catholics.

Justice Thomas will write a separate concurring opinion, arguing that the original intent of the authors of the First Amendment was not to prohibit the display of a cross on publicly-owned land, but rather only to prohibit the creation of a mandatory participatory religious institution by the Federal government. Whether Justices Scalia and Alito will join this opinion is a good question, but this narrow originalist opinion will get no more than three votes.

Based on my reading of this recent case, Hein v. Freedom From Religion Foundation, I think we will see a more foreboding signal from the "conservative" Justices. Sometimes, the Court questions a litigant's "standing to sue" as a way of ducking a controversial issue. The Pledge of Allegiance case is a really good example of that -- rather than answer the question of whether requiring a schoolchild to recite the modified Pledge of Allegiance, incorporating the phrase "under God," is an Estblishment, the Supremes said that the plaintiff didn't get to ask that question because the plaintiff was a non-custodial parent of the particular schoolchild in question. But there is also the question of whether anyone can challenge a purported Establishment in the first place. Justices Scalia and Thomas would effectively deny any individual or advocacy-group litigant the right to file a lawsuit against the Federal government alleging the Establishment of a religion.

Moreover, the flexible "coercion" test appears to be gaining strength, because that was the basic reasoning used by Roberts, Kennedy, and Alito in the above case. They would look at the plaintiff in Salazar v. Buono and ask, "So let's say that the government really is endorsing Christianity here. So what? How does that hurt you? You don't have to be a Christian just because the government allows private parties to maintain this cross in the Mojave National Preserve." If some or all of these Justices can be persuaded that there is no concrete injury other than an infinitesimally small amount of tax money that goes in to paying the salaries of park rangers who look the other way at the cross, and they want to avoid a decision on the merits using the traditional Supreme Court trick of challenging standing rather than ruling on the merits, they have the ability to join Scalia and Thomas in saying that taxpayer standing is not enough in this case. If that point of view can command five votes, this case will not just erode but eviscerate the Establishment Clause as a meanginful part of the Constitution* than the narrower exception that I'm predicting here. I don't predict that, though; they could have done it in Hein and didn't.

Justices Stevens, Ginsburg, and Breyer will dissent, arguing that land swap law a tissue and determine that Congress' intent in dong the land swap was not to net four acres of land but rather to preserve the cross. This, the dissenters will argue, demonstrates an intent by Congress to promote and protect the cross as a religious symbol, which therefore proves that it is indeed an Establishment of religion. They will also mention that they disagree with the notion that the plaintiff lacks standing.

Personally, I don't see how the presence of a large cross, visible from the Interstate, on Federal land, could be reasonably seen as anything other than a governmental endorsement of the Christian religion. The refusal of the government to allow non-Christian religious symbols to be placed there adds a lot of weight to that understanding of the cross' presence. Finally, there is the argument that the cross is a "generic symbol of death and memorial" -- while I concede that there is indeed something to this concept (an idea to which I was initially very cool) in this case, considering the use to which the cross is put, I would argue that this cross, in this context, in the present day, has become a religious symbol and a focus of religious activity. So I would join what I anticipate will be the dissent.

This should surprise regular Readers of this blog not at all. But, we'll have to wait until after the first Monday in October to get any hint of how right I am.


* This would not be the first time that the Supreme Court has, through its power to interpret the Constitution, eroded its terms into near-oblivion. For instance, the Privileges and Immunities Clause is basically worthless as an assurance of individual rights thanks to The Slaughter-House Cases (1873) 83 U.S. 36.

Identification: Why I Do Not Define Myself

Democrats -- particularly Democratic legislators -- appear to be made up of equal parts of corruption, incompetence, and half-baked idealism.

Republican politicians, for their part, have responded to every opportunity to capitalize on this by proving themselves not only equally corrupt, but frequently equally incompetent and willing to submit to the intellectual leadership of unprincipled religious zealots.

The back-and-forth sway of power between them is the result not so much of the masterfully-structured Constitutional framework which seeks balance and compromise, nor the endgame of clever political stratagems, as it is the inevitable result of public disgust with the excesses of overreaching in policy, personal hypocricies, and abuses of power by whichever group happens to currently hold power.

A multi-party system, as opposed to a two-party system, does not appear likely to me to produce significantly better results. Multi-party democracy in other nations whose politics I monitor -- the UK, Israel, Italy, and Canada -- seems to coalesce in a broadly bipolar way, only with entire parties gravitating towards coalitions rather than different factions and wings of two large parties. In the UK, it's always either a Labour or a Tory running the show. In Israel, there is always a leading "aggression" party and a leading "peace" party; right now those are called Likud and Kadima. (Did you know that there was a Black Panther party in Israel? There's your trivia for the morning.) And so on.

Can you tell I'm in a seriously foul mood this morning?

People ask me sometimes, "Why don't you run for office and try to make things better?" Or, "If you want to be a judge, why aren't you one yet?" Well, I ask that question of myself more than people ask it of me. The answer is that the corrupting miasma of elective politics repels me when I confront it first-hand. Democracy is an awful thing to observe first-hand and up close. The only forms of government worse than representative democracy are, well, every other way of selecting political leaders that has ever been tried. That makes what we've got the least bad option.

Why do I keep a political party identification with the GOP? Again, not becaue of any love or affinity for the party's leaders or the platform it holds. It just seems to me to be the least bad choice. Given that both parties are corrupt and incompetent, the Republicans seem to offer at least a clear factual distinction between the regular political types and the lunatics. But make no mistake, there's lots of Kool-Aid being passed around in both parties.

But a GOP registration says nothing about my ideology. Ideological polarization and pigeonholing seems to to be part of the genesis of the political miasma that has rendered me so deeply cynical this fine morning. So I've given up on self-identification as a conservative, libertarian, liberal, or even moderate. Those words seem to mean different things to different people anyway.

Idiotic Online Banking Problems

A while back The Wife expressed dissatisfaction with Stagecoach Bank. (Not the actual name of the bank in question.) She wanted to switch to another bank and that was okay with me. Stagecoach Bank had done something rather stupid with putting a hold on a cashier's check and that caused us to delay closing escrow on Soffit House, which got me pretty steamed.

Also a while back, the partners at the firm told me that they had a great banking relationship with Big Manhattan Bank (also not the real name of the bank in question), which had a few branches in California. They were so happy with it that they were willing to bank by courier -- the bank's courier would come every other day to the office and run stuff down to Santa Clarita where the nearest branch was, and they didn't have to do anything. And at the time, direct deposit was available only to people who had their personal accounts with Big Manhattan Bank, which was at the time not me because I was with Stagecoach Bank.

The Wife and I heard that Big Manhattan Bank was going to open an office up here in our part of the world soon, so we resolved to wait until that happened, and switch.

After a time, I stopped being irritated at Stagecoach Bank because it stopped charging me a fee for keeping a savings account. And then it stopped charging a fee for keeping a checking account. And in fact my experiences with Stagecoach Bank got better and better and I was pretty happy with it by the end of the day.

But then Big Manhattan Bank bought out Distressed Cascadian Bank (again, a pseudonym), also known as DisCas, which had some local branches. And to promote the newly-created Really Big Manhattan Bank, we got a promotional flyer saying "DisCas is now Big Manhattan!" and offering us a $100 incentive to open up accounts with direct deposit there.

So we did it. The Wife had apparently not ever gotten over her irritation at Stagecoach Bank and hey, a C-note is a C-note.

We went to the local branch, which was covered in the corporate logo of Big Manhattan Bank. We signed a banking agreement with Big Manhattan Bank, spoke with a representative who identified himself as working for Big Manhattan Bank, gave us a business card with the Big Manhattan Bank name and logo on it, tapped into a computer that had Big Manhattan Bank's name on the splash screen, got issued checks (both temporary at the branch, and custom checks that came in the mail) and ATM cards with Big Manhattan Bank's name and logo on them.

So the time came to pay bills for the month. I went to www.bigmanhattanbank.com and put in our chosen user name and password. Nothing. It didn't recognize me at all.

I had The Wife try. She opened up her computer, and got right on. She passed it along to me and I registered all our vendors and got bills set up. But I still couldn't get on with my computer. And that didn't make any sense. And I couldn't check on the account's status so I was walking around with no idea of how much money I had in the bank from day to day. This makes me anxious to not know how much money I have. Even if it's not a lot, at least I know.

So after a week of this, I called customer support and the CSR on the other end said, "Oh, are you a former DisCas customer?"

"Well, no. It was a DisCas bank and--"

"So are you a-- sorry, finish what you were saying, sir?" (At least she apologized for interrupting me.)

"The branch used to be a DisCas bank, but then you guys bought it, and when we went there to open up the account, it was all Big Manhattan."

"So you are a former DisCas customer."

"Well, not really, but --"

"Try using DisCas.com. I can't help you with that but I can give you a phone number to call for support for that website."

I tried DisCas.com. It worked great, first time out. The Wife said that it had never even occurred to her that I would be using anything but DisCas.com, that she wouldn't have imagined or dreamed of going to Big Manhattan Bank's website.

Made me feel kind of stupid.