It Is Happening Again

In less than twenty-four hours, I have learned that SarahPAC has raised over $866,000 and spent over $742,000 flying its celebrity politician about the country.  The ability to raise numbers approaching a million dollars a quarter, and less commented on but probably more significant, the massive outreach to conservative grassroots, has lent weight and given a spotlight to what I already through were former Governor Palin's Presidential ambitions.

Almost immediately, as if to counter the possibility that Sarah Palin would become the annointed, inevitable Repubilcan Republican nominee, Newt Gingrich (!) announced that he was more serious than ever about running for President during the upcoming cycle.   This isn't actually all much of a statement when read at face value, seeing as Gingrich has never actually declared his candidacy for President in any cycle.  But the impact is not in the literal truth but rather the fact that he raised the flag at all.  So while not quite tossing his hat in the ring, Gingrich through surrogates offered comparisons of himself to Bill Clinton as a candidate.

And then this morning, I can read that the Obama camp is already preparing their campaign template to run against Palin, Tim Pawlenty, Mike Huckabee, Mitt Romney or pretty much anyone else the GOP nominates -- by running against George W. Bush.  The idea is, I guess, that any GOP candidate is "going backwards" while Obama is "going forwards" and therefore the representative of "change" despite being the incumbent.

When you play chess, if your first or second moves are not what you wanted, you still have time to change your strategy and set up a different kind of play.  That's the import that should be read into these "events," which of course are not really events at all but simply factoids and throwaway comments scooped up by a voracious and hypercompetitive news industry hungry for any kind of a political story at all.  Chances are still favorable that the eventual GOP nominee will be someone who right now has a relatively low profile and some ideas that can catch fire.  (A guy can always hope, right?)

Today's point is -- the 2012 Presidential election is now underway.

The Loser Must Acquiesce

The rule of law requires that when a decision is made by the appropriate authorities, everyone go along with it.

I was, and remain, a strong proponent of same-sex marriage.  I thought, and still think, that Proposition 8 was a betrayal of the promise of equal protection, due process, and fair play by the state of California.  A majority -- not a large majority, but a majority all the same -- of the voters here saw it differently, and Proposition 8 became part of the state's Constitution.  I must acquiesce in this result, and confine my response to political action (which mainly takes the form of using this blog as a forum wherein, from time to time, I address the issues and attempt to persuade others to come over to my point of view).

When my client loses in court, she and I have to confront the appropriate alternatives.  We can appeal, or we can go along with the result.  What we can't do is defy the court's order imposing a course of action which we would rather not undertake.  To do so would be to demonstrate contempt for the court.

Magna Charta stands out as a singular moment in Anglo-American legal history because it represents the overt supplication of the will of the King to the rule of law.  Even the King is not above the law after Magna Charta.  The Declaration of Independence and the Constitution are predicated upon the idea that the government of the United States, the political heir to the King, is subject to the rule of law.

And thus it is with great distaste that I see that the Obama Administration has re-imposed a ban on offshore oil drilling, even after a court of competent jurisdiction ruled that such a ban was legally invalid.  The Administration will no doubt defend itself from accusations of contempt of court by protesting that the original ruling invalidating the oil drilling bad was based upon a lack of competent expert evidence, and now the new ban enjoys such support.  However, at least in spirit, this appears to be nothing more than simple defiance of a court order the Administration did not like, re-imposition of a regulation that had already been invalidated by the Court.

Oil drillers are not popular right about now, and deservedly so.  There is room to think that a moratorium on offshore drilling is wise, to permit development and testing of technology to handle catastrophic accidents like the Deepwater Horizion spill.  Oil drills are, neertheless, a vital segment of our economy, one upon which a substantial amount of our infrastructure and thus nearly all of the rest of the economy, depends.  There is much room to both question or praise the wisdom of an oil drilling ban, even a temporary one.  This ban, however, is only the appearance of decisive action by the Administration after the Deepwater Horizon oil spill, however -- it is the Administration decisively nailing shut the door of the barn, many weeks after the horses have all escaped. 

But even if you think that the moratorium on oil drilling was a good idea and will have beneficial effects, the issue here is not whether it's good policy or not.  We're past that.  It's about whether the Administration takes seriously the concept of the rule of law and divided government.  On the face of it, this suggests that the Administration considers the courts to be an obstacle to good government rather than a safeguard of freedom.

Martini Mistress

Yesterday, I met an old friend for a few drinks after work.  I've been so conditioned by the poor quality of drinkmaking around that this exchange with the bartender left me profoundly pleased:

"I'd like a Ketel One martini."

"How do you like it?"

"Clean, up, with a twist."

"You got it, Mr. Bond."

And it was perfect.  Tart and refreshingly bitter, not at all sweet, and icy cold.

I've had bartenders ask me if I wanted my martini on the rocks.  I've had them just give me the martini on the rocks, in a highball glass.  I've had them come out looking green.  "No olive" gets translated into "extra olives" too often.

It was great to get the right martini -- and to have the bartender know that a vodka martini with a twist was James Bond's drink from the books.

Federalism: It Isn’t Just For Conservatives Anymore

That's about as provocative a post title as I could think of for a more detailed report on the more interesting of the two cases issued yesterday striking down the Federal Defense of Marriage Act, Commonwealth of Massachusetts v. United States Department of Health and Human Services. And it's more than a little unfair because I happen to think that the principle of federalism is one that ought to transcend one's political preferences. It doesn't, very frequently, because whether one is deferential to a federal law or to a state's law seems to depend a lot more on whether one has a policy preference for the result as opposed to a belief in the process.

I.  Let's Dispense With The Idea That Either Conservatives And Liberals Care About Federalism As Anything Other Than A Periodic Convenience

Where is the right boundary line drawn? Social conservatives will, in the wake of Commonwealth v. DHHS, be anxious to take as expansive a reading of Federal power as they can so as to justify the Defense of Marriage Act. This is oddly consistent with the position taken in, for instance, Gonazles v. Raich, the "medical marijuana" case in which the authority of Congress to criminalize marijuana in the Controlled Substances Act was upheld (by a narrower margin than expected). At the same time, though, these same people are the ones most likely to be outraged by Wickard v. Filburn and, more contemporaneously, the "Obamacare" health care reform laws, which are the subject of several pending challenges as having exceeded Federal power.


Not that the politically liberal side of American discourse has been either historically or contemporaneously consistent in their views of Federal-state distribution of power, either – social liberals are all for the use of Federal power to combat racial and gender discrimination in private employment and historically favored Federal laws imposing minimum wages and maximum hours of work, but oppose as an unlawful extensions of Federal power mandates for "waiting periods" or dispensing of information before abortions are performed. The result, for nearly everyone, is more important than how the result is reached.


As I see it, there is no "liberal Constitution" and no "conservative Constitution." It's the same Constitution for all of us. And whether we like the results of a Constitutional analysis of a law or not, we need to understand that this is the supreme law of the land and we all must submit to it. It, too, can be amended, although that is (appropriately) a very difficult thing to do. With that said, the document is intended primarily to create the basic framework of a government of divided powers – powers divided between the branches of the national government, and powers divided between the national and state governments, all of which are limited in scope by individual rights and liberties. Protecting those liberties is accomplished by limiting the powers of government and as we all know or ought to know, setting appropriate limits on the powers of the Federal government was in 1787 and remains today the fundamental issue of Constitutional law.

II.  How Deferential Would A Principled Approach To Federalism Be?

In the most narrow view of Federal power, the Federal government may do only those things which fall within the subject matter areas of the enumerated powers – typically defined as those which are explicitly set forth in Article I, section 8 of the Constitution, although there are a few others. If it's not enumerated, it's not something the Feds can do and therefore the Tenth Amendment reserves that power to a state acting under its "police power" or "plenary power," essentially the power to legislate and regulate on anything it chooses. This is a hard-textual reading of the Constitution. It is also close to the position adopted by secessionists prior to the Civil War and by proponents of Jim Crow and segregation laws in the first half of the twentieth century. It is also a position taken by many contemporary libertarian political scholars who, while they condemn the racially-tainted uses the doctrine has been put to in the past, nevertheless insist that it is the best way to look at the Constitution.


It also is fundamentally inconsistent with post-New Deal jurisprudence about the Commerce Clause. Almost certainly as a result of political leveraging of the Supreme Court in FDR's Presidency, the Court in the 1930's began to take a very expansive reading of the power of Congress to regulate "interstate" commerce as one of its enumerated powers. Pretty much any activity with any economic effect whatsoever, even seemingly purely local activity like a farmer growing wheat to feed his own family, or growing marijuana for personal use within the same state that it is grown, may be "aggregated" into part of broader economic activity and therefore fall within the scope of Federal regulation. To date the only limits to this defined in Supreme Court jurisprudence relate to automatic penalty enhancements for either the possession of firearms within a defined number of feet of a school or certain acts of violence perpetrated against women.


There is also a series of Federal laws operating with a concept called "cooperative federalism," by which the Federal government creates incentives – or withholds those incentives – based on a state's "voluntary" decision to comply with a Federal law. This is how there was a national speed limit of 55 miles an hour when I was a kid, for instance; in the 1990's, Congress abandoned this particular application of the concept but the idea remains still within the potential reach of Congress – if a state adopted the Federal speed limit, it became eligible for Federal highway funds; if it chose to set a speed limit higher than that, no Federal money. Compliance with a variety of Federally-"mandated" educational programs at all levels of public education are incentivized this way, and so are certain welfare programs like AFDC, Medicare, and TANF. So far as I know, no one has ever even brought a serious challenge to the concept of "cooperative federalism," and it is a way in which the Federal government may (indirectly, but not very indirectly) reach into areas that were considered "traditionally" the exclusive province of the state police power.


The most expansive view of Federal power is that when there is a significant national emergency, the Constitution is not a suicide pact, permits things to be done in exigent circumstances that would be more questionable in calm times, and the President's power as commander-in-chief and the unitary Federal official charged with faithfully enforcing and enacting the laws permits the government to do more or less anything it wants at any time. This is functionally the claim made by the Bush Administration because of the Global War On Terror and, frankly, the Obama Administration hasn't backed away from it all that much. It is also functionally the position taken by the Lincoln Administration in the Civil War, which was used to justify things like arresting a sitting Congressman and suspension of the writ of habeas corpus by Presidential order – things which were later determined to be unconstitutional, although not until after the shooting had ended.


Making it even more complicated are areas of "concurrent jurisdiction," in which both state and Federal law may apply. For instance, states may regulate boats and other watercraft, and so may the Federal government as long as the watercraft are operated on the ocean, in "navigable rivers and lakes," or in Federal enclaves like national recreation areas (for instance, Lake Powell in Utah). What constitutes a "navigable river" is far from objectively determinable. Ostensibly, it means that you can access it from the ocean. But very recently, the Los Angeles River was deemed to be "navigable" although I don't think that in even the rainiest of seasons you could take anything more than a canoe up or down it, certainly nothing that could handle the rough seas of the ocean. Calling it a "river" at all as opposed to a "concrete-lined ditch" is something of a vanity, too. Ah, but I digress.


Ah, but I digress. We were trying to understand what are the Constitutionally appropriate demarcations of Federal and state powers. To that end, here's an interesting concept is one I came across in a very different context recently: "expressio unius est exclusio alterius, that is, the express mention of one thing excludes all others." That isn't very helpful, so let's try again in something more strongly resembling English. "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-617 (1980)). I've not found evidence that the idea is used as a canon of Constitutional interpretation; however, if it's a principle by which statutes are interpreted then it would seem to be appropriate to apply to the Constitution, too.


So if the Constitution sets out specific powers of the Federal government by subject matter area, the principle of expressio unius est exclusio alterius suggests that in areas which are silent, the Federal government lacks power. So that takes us back to the first and least Federal-friendly lens through which to look at the Tenth Amendment; unless it's enumerated in Article I, Section 8, the Federal government can't do it. Taken with the understanding that the Commerce Clause is broad enough in its modern application to justify a great deal of Federal power, that's more or less the approach I would suggest is the right one. What's more, the Constitution limits the powers of the states, too. Article I, Section 10 provides a list of things states may not do. That list is added to by roughly half of the Amendments to the Constitution, too. Given that the Constitution has a list of specific restrictions on the exercise of a state's plenary power, expressio unius est exclusio alterius tells us that if a particular kind of law is not excluded from a state's powers, it is therefore included.


This view is also consistent with one of the original conceptions of the Constitution, which was that it was a compact between the States to limit their own power and establish a central government for their common benefit.

III.  The Full Faith And Credit Clause Is Irrelevant To This Case

But there are also what may be called the "transactional" powers of Congress, and here we get in to some really interesting questions. Separate and apart from the Commerce Clause's power, Congress has the power to regulate relations between the states, for instance and most interestingly in this case, Article IV, Section 1, which reads in full:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It is not entirely clear how much of this section is properly called the "Full Faith and Credit Clause," but both sentences are part of the Constitution. I'll have more about this in a moment. But the point is that the Constitution, itself, requires one state to recognize and give effect to the laws and other public acts which have taken place in other states. So a money judgment against me in California can be enforced against me if I move to Tennessee; Congress may pass a law whereby the manner in which such a "sister-state judgment" can be uniformly recognized. In practice, each state has its own "sister-state judgment" law and except for Indiana, Massachusetts, and Vermont they are all the same law, so there is no need for such a Federal law, although it would seem that Article IV, Section 1 would authorize such a law were Congress to pass it. So with that in mind, let's take a look at DOMA itself. The disputed provision, 1 U.S.C. section 7, reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

Supporters of DOMA have long claimed that this falls squarely within the powers explicitly given to Congress by Article IV, Section 1. Critics of DOMA have long claimed that Article IV, Section 1 prohibits the enactment of DOMA. I'm a critic of DOMA and unsurprisingly, I think that the Full Faith and Credit Clause does not authorize Congress to prescribe which legal acts of one state must be given effect in another state. Congress doesn't get to pick and choose – for instance, money judgments for debts predicated upon writing bad checks must be honored across state lines, but money judgments for debts incurred in gambling need not be. No – a judgment is a judgment is a judgment. Congress may say how you prove up a sister-state judgment, but if there's a judgment against me in California, Tennessee is obligated to honor and enforce that judgment, no matter what Congress says.


But what about that last bit of the clause, "…and the effect thereof"? To what word or phrase in the previous clause does the word "thereof" refer? "General Laws" (as in, "the effect of the general laws Congress enacts")? "Acts, Records and Proceedings" (as in, "the effect of the acts, records, and proceedings")? Or "proved" (as in, "the effect of proving an act, record, or proceeding")? Or all of the above? Maddeningly, rules of composition and style were hardly settled in 1783 when this document was written. I'm reminded of a classic grammar bromide:

Let's eat Shatner!

Let's eat, Shatner!

Commas: They save lives.

It seems to me that a reading of the clause that would allow Congress to pick and choose which kinds of civil judgments, criminal convictions, and contracts issued by one state had to be honored in others would completely defeat the purpose of having a Full Faith and Credit clause in the Constitution in the first place. 

But, we do not need to address this issue today. The Full Faith and Credit Clause will eventually come in to play when a state (let's say, Wisconsin) refuses to recognize a same-sex marriage license given by a sister state (let's say, Iowa). That's not the case in Commonwealth v. DHHS. In yesterday's case, the issue was literally hundreds of thousands of dollars that would have flowed from the Federal treasury into Massachusetts state coffers for veteran's graveyards should the spouse of a Massachusetts veteran ever be buried next to her wife who had honorably served in our nation's proud military and not violated the Don't Ask, Don't Tell policy.


So we are dealing with the Federal government's relationship to a state here, not to the relationship between two states with the Federal government serving as an intermediary. Thus, the Full Faith and Credit Clause is not an issue here and while I acknowledge it will eventually be a big player in this debate, maybe as soon as in the Perry v. Schwarzenegger decision, it's not in play today. So let's move on to the real juice and let me get some sleep tonight because the hour is growing late.

IV.  The Resurrection Of The "Traditional State Powers" Doctrine

You see, the most interesting thing about the Commonwealth decision is not its effect on same-sex marriages from a Federal constitutional perspective. For that, you need to look at Commonwealth's companion case decided by the same judge on the same day but on different grounds, Gill v. Office of Personnel Management. The Gill case struck down DOMA on the grounds that it violates the Equal Protection Clause, and will likely weigh heavily in the upcoming decision in Perry v. Schwarzenegger. For a pessimistic view of the long-term effects of Gill, I refer you to no less powerful an authority on same-sex marriage law than Professor Dale Carpenter, who fears that the less-than-full-throated treatment the issue received from both the Government's attorneys and the Court have left an intellectually shaky foundation for future equal protection challenges to state laws about same-sex marriage. No, the really interesting thing in Commonwealth is the standard of analysis used by the judge in his Tenth Amendment review of DOMA.

 
Functionally, Judge Tauro revives the idea that the Tenth Amendment prohibits the Federal government from legislating in "traditional state governmental functions" . This approach was struck down as a matter of doctrine in Garcia v. San Antonio Metropolitan Transit Authority (1985) 469 U.S. 528. The judge actually has some reasonably good intellectual support for doing so, as Professor David Kopel points out. And it is here that social conservatives should really sit up and take notice. As the first and third links in this paragraph describe, this rationale would have profound implications on a fairly significant amount of recently-passed social and economic legislation. The bulk of Obamacare, for instance, falls sharply under a shadow of doubt given the Tenth Amendment rationale used by Judge Tauro, because the regulation of insurance companies has traditionally been something states have done rather than the Federal government. So, those Tea Party activists who have been claiming for a long time that Obamacare represented an unconstitutional overreach of Federal power, therefore, ought to welcome the Commonwealth decision as a step in the right direction.


Which brings us full circle. Almost any legal rationale is almost always going to have results that people of either political persuasion will find agreeable and other results that they find disagreeable. You need to pick your rationale carefully, because you're going to have to live with its results even when they are unpleasant. A rationale that says the Tenth Amendment is a strong and vital part of the Constitution means that there are a lot of things the Federal government can't do, and no matter who you are or what your political ideology is, you're inevitably going to like some of the things that a strong Tenth Amendment will prohibit.


As for this case, ask yourself this – if you had to choose one and only one result, would you a) invalidate Obamacare and tolerate same-sex marriages, or b) enact Obamacare and lose same-sex marriages? As for me, it's a choice between a) eating ice cream or b) cleaning toilets. I'll pick option "a" every time – no Obamacare (yay) and same-sex marriages (yay). For me, the challenge would be, would I be willing to give up a powerful Title VII in order to get there? (Probably yes, because most states have state-level anti-discrimination laws that are at least equal to Title VII so it wouldn't be that much of a sacrifice. But let me think about that a bit before I give you my final answer.)

Federal Defense of Marriage Act Unconstitutional

In Boston today, U.S. District Judge Joseph Tauro ruled that the Federal Defense of Marriage Act is unconstitutional.  If you're following the same-sex marriage issue, whether you're pro-SSM or anti-SSM, this is an appropriate time for you to let out a long, low whistle, because this is the biggest development in the field since California's Proposition 8.

TO BE UPDATED -- More later when I have time to add it.  I can't find the opinion at the D.Mass court yet and I need to pay attention to something else at this moment.  -- No wait, there are two opinions, one invalidating DOMA on equal protection grounds (finding a failure to meet the "rational basis" test, no less), and the other invalidating it on Tenth Amendment grounds ("The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment").

No American Equivalent

I am actually a little bit stunned at this. And it remains to be seen if the Tory/LD coalition government in the UK will take any action on this or whether it's only so much window dressing. But can you even imagine something like this being done here in the States?

That's Deputy PM Nick Clegg in the video making that rather extraordinary post-election promise.  This link takes you to a webpage of Her Majesty's Government where individual citizens can explain how they believe their civil liberties are being abridged and at minimum some government flack is going to read the complaints and compile them in a report.

I've got to imagine that there will be a lot of cranks complaining about nothing they can clearly articulate and a fair number of people griping about paying taxes and a number of partisan hacks poisoning the well with complaints about innocuous policies.  But it's not like there aren't things for Brits to complain about.  Their government watches their citizens' spending habits, reserves the right to eavesdrop on their telephone conversations and e-mails, and utilizes criminal justice procedures the likes of which would shock civil libertarians here in the States.  And you simply can't walk around pretty much anywhere in London and especially in the Tubes without a CCTV camera monitoring you.

Given the abysmal, dismissive, and disappointing performance of the Obama Administration on civil liberty matters, I simply cannot imagine the government of the United States undertaking a similar sort of initiative with any degree of seriousness.

Actually Hardly Surprising News

One of the big motivating reasons offered to justify the controversial "new" law concerning immigration in Arizona is the fear that undocumented aliens are perpetrating a wave of crime, particularly violent crime, upon hapless Arizonans.  The Feds are letting all these criminals in!  Burglaries, thefts, rapes, kidnappings, and murders are all used as indicators of the many problems these outlaw border-crossers bring with them.

Well, in one sense of the word, that is undeniably true.  A person who is not a citizen of the United States and enters the country for more than a very brief visit without a passport, visa, work permit, or other documentation is violating our laws and by definition is a criminal.  And there's something to be said for such a person -- who is already on the wrong side of the law -- being impelled into a culture of lawlessness that does, in fact, breed the kind of crime that Arizonans are being told has come to plague their state.

But the signal for the critical thinker to dust off the bullshit meter is the reliance on scare words and anecdotes rather than on statistical data.  Because when you look at the statistics, crime is down in Arizona. Overall, from 2004 to 2008, crime went down down by 23% and violent crime went down by 11%. This compared to a population that grew at a rate more than three times the national average and had a higher percentage of young people and a smaller percentage of women than the national average. Of course, Arizona can only take so much credit for this; crime is down nationally and continues to go down. It hasn't gone away, in Arizona or elsewhere, but there is less of it now than there was five years ago.

Statistics never tell the whole story, but they do frame out the big picture. If you personally are the victim of crime, the statistics don't matter a damned bit. But laws shouldn't be made and justified based on anecdotes; ideally they should address real problems. Arizonans have been asked to endorse this law, and have done so, based on the idea that they are under siege by violent criminals. It isn't true. Not even the bit about the kidnappings -- nearly all of them are related to the drug trade, so if you aren't involved in the drug trade, you aren't any more at risk of being kidnapped in Phoenix than you are in Minneapolis or Richmond.

Nor is fear of crime the only justification that has been offered for the Arizona law.  The other primary argument about minimizing illegal immigration is that undocumented aliens take jobs from Americans legally entitled to work; that they depress wages because they work outside the system and can be paid less than minimum or prevailing wages for the work they are doing; that they do not recycle their money back in to the larger U.S. economy by buying goods and services here but instead remit a substantial portion of their wages back to other countries.  There is some meat to each of these economic arguments, and although they are simplistic renditions of a more complex reality, these concepts should be considered, at the Federal level, as part of the suite of issues that should be addressed in immigration policy reform.  In my mind, all of these economic arguments suggest that allowing more workers to legally come here and seek work is the right answer.

What isn't the case is that a spike in illegal immigration has caused a crime wave.  The data simply don't support such a claim.

A Sign That It's Time To Go Home

Looks like what just hit about sixty seconds ago was a 5.9 based in the mountains about halfway between Temecula and the Salton Sea. Here, it felt like a truck hit the building followed by some swaying, like when your car goes up and down dips in the road.  I hope no one was hurt, and there's reason to be optimistic because the center of the quake was in a wilderness area.

LATER:  It seems to have been downgraded to a 5.4.  And amazingly, The Wife was home at the time and said she felt nothing.

Pay. The. Man. Already.

Why in Apollo's name is my wife's insurance company giving my urologist the runaround about paying the bill for my vasectomy?  They aren't going to pay the measly $700 left over after our cash co-pay for the procedure because they want to confirm that I don't have any health insurance of my own or other payers for benefits like this.  Well guess what?  I'm willing to bet most families have only one person who brings home health care benefits because they're really damned expensive for employers to provide.  And the reason health insurance is expensive isn't vasectomies.  It's what happens when you don't get vasectomies.

Think about it -- if I had remained fertile and impregnated my wife, the insurance company would have been paying for neonatal care (enhanced because my wife's age raises health concerns above and beyond that of a younger mother), tens of thousands of dollars in obstetrics for the delivery, and over the next eighteen years, tens of thousands more in pediatric care, well-baby visits, and dealing with the countless infections, colds, scrapes, broken bones, and who knows what other injuries are a normal part of growing up.  Instead, they are asked to pay seven hundred dollars for the privilege of avoiding tens of thousands of dollars in payouts down the road. 

Meanwhile, they can continue to charge my wife and her employer the high-margin premiums with low expected benefit risks which are standard for under-40 DINKs.  Well, in my case I'm soon to hit the big 4-0 but that's another story. Point is, they're saving so damn much money with me getting sterilized and being childless, they ought to be not only writing my doctor a check, but reimbursing me the co-pay.

Arizona: Enemy of Federalism

(Cross-Posted at League of Ordinary Gentlemen.)

So the Federal Department of Justice has sued the State of Arizona over Arizona's immigration law. Once again, I am forced to think critically about something of which I superficially would seem to approve.

Like a lot of immigration liberalization advocates, I must confront the fact that there are people out there who think that the immigration laws are too liberal already. Many of these same people also say, in contradiction to the first contention, that the laws on the books are not being enforced appropriately. Both can't be materially true (if the laws are adequate but not enforced, then they are adequate and not too lax; if the laws are too lax then it hardly matters how well they are enforced) but the sentiment expressed winds up getting to the same place – they contend that too much illegal immigration is going on and it is not a situation we can tolerate for long.

Of course, I've been saying the same thing about the national debt for years and no one's done anything about it. But that's a different story.

The question that the case of United States v. Brewer raises is not one of policy, however, but rather one of Constitutional effect. The Constitution gives to the Federal government the right power to create a uniform rule of immigration and naturalization, which means that this is a subject matter area removed by the words of the Constitution from the states. But the Arizona law does not, itself, attempt to alter the Federal rules about immigration. Arizona has simply said that it wants those rules to be vigorously enforced.

The degree of vigor to which laws are enforced is a policy choice vested in the President. There are too many laws and not enough resources for all rules to be vigorously enforced, so inevitably every President must set priorities. That's part of what you bargain for when you vote for President and it's part of the reason that the Presidency is so powerful in the modern system of government. And since the Reagan Administration and likely since before that, patrolling the Mexican border to prevent illegal immigration* has not been a hugely high priority on the part of any President, regardless of the President's party. Let's not forget, for instance, that it was Reagan's idea† to have an amnesty for illegal aliens already here in the States, and although I rather doubt Reagan would have wanted that to have turned into an incentive for illegal immigration, he did propose a compassionate, integrative approach to the problem.

So Arizonans, whether rightly or wrongly, believe that illegal immigration causes law enforcement problems. What does their law really say? In effect, it comes down to this: if there is a police stop or arrest made on some other cause, and the officer has a "reasonable suspicion" of undocumented status on the part of one of the detainees, the officer can refer that person over to the Federal authorities for them to investigate whether the person has a legal right to be in the U.S. or not.

As I've opined before, the place where I think the law runs in to serious problems is in finding something concrete about a person that the officer can articulate gave rise to a "reasonable suspicion" of undocumented status. It can't be, for instance, that the person has difficulty speaking English. A significant number of citizens have Spanish as their primary language. It can't be that the person is apparently afraid of or nervous about authority figures or seems to find the idea of deportation uncomfortable. If a cop threatened me with deportation, I'd be uncomfortable, too. It might be based around the time, place, and activity of the detainee at the time of contact with the police; but again, the sorts of things one might expect an undocumented alien to be doing are things a native citizen might be doing too – looking for day labor jobs while hanging out in front of Home Depot, for instance. Yes, you'd expect to find a lot of undocumented workers. But citizens might be doing that sort of thing too. And lots of citizens drive without their licenses or other identification on them.

But that is not the theory behind the Federal challenge to the law. That case asks, does this change the unitary Federal scheme for regulating and controlling immigration? To be sure, it enforces that scheme with a degree of vigor that is not found in other states (yet). But substantively it doesn't change the scheme. If the Feds wanted to, they could simply let everyone referred to them by Arizona state law enforcement go without any further inquiry. The only result of that would be that some Arizona cops would abuse their powers and hassle people they wanted to hassle by making an immigration referral for them – but the fact of the matter is, cops already have huge latitude for hassling people they want to hassle anyway. And a state cop who wants to intimidate someone with a threat of deportation will do so anyway because most people susceptible to such a threat are not sophisticated enough to appreciate the subtleties of American Constitutional law in the first place. So while an expansion of state police power in theory, in practice I don't see much going on there.

The issue is ultimately one about prioritizing. And that's what is unique about Arizona's challenge to lawmaking authority. It is not a challenge to Congress' ability to make a law setting a uniform rule for immigration and naturalization. Rather, it is a challenge to the President's setting of priorities and determining that policing against illegal immigration is not as high a priority as, for instance, identifying particular security risks among the population of undocumented aliens or focusing national security dollars on high-tech fighter jets or using drones to kill (admittedly, very morally bad) American citizens engaged in non-combat activities without arrest or trial. It is a challenge to executive lawmaking power, not legislative lawmaking power.

There are those who deny that the President has any lawmaking powers at all. If the term "lawmaking" is defined very narrowly in terms of "legislation" that is probably correct, except to the extent that Congress has delegated that power to the President and agencies reporting to him, thus resulting in the amazingly complex and intricate Code of Federal Regulations. But if "lawmaking" is defined as "creating the enforceable rules that govern our society" then it is quite clearly a power shared by, and intended to be shared by, all three branches of government. Prioritizing among various legislative objectives is one of the things left to the President's discretion and it is, itself, a form of lawmaking. Therefore, Arizona's law challenges the President's ability to decide to focus resources in one area and not in another; it attempts to force the President's hand at allocating resources among various kinds of Federal law enforcement activities.

Prioritizing is a power inherent in the Presidency; it is in a very real sense the most meaningful part of the President's job. Thus, I have to come down on the side of disapproving of the Arizona immigration law as unconstitutional (as opposed to merely ill-advised). The President gets to decide how to allocate Federal law enforcement priorities, not the State of Arizona. Part of our Constitutional scheme is the concept of separation of powers; part of federalism as a form of that separation of powers is the notion that the Federal government is supreme in the subject matter areas delimited as within Federal authority by the Constitution. Were the Arizona law to be valid, then an individual state could set Federal law enforcement priorities contrary to the wishes of the President and the Governor of that state would be more powerful in controlling Federal agents. This cannot be; it is contrary to the Supremacy Clause and contrary to our scheme of Federal-state power distribution.

* This subject has become so politicized that even the terms "illegal immigration" and "undocumented worker" have become politicized to the left and right. For my part, I try to split the difference. A person is described as "undocumented" and they are not "laborers" or "workers" unless they have employment of some kind. But the act of entering the country without documentation is a violation of our laws and therefore "illegal." Hence, "illegal immigration" is an act done by an "undocumented person," and while that person is not inherently "illegal," he has broken a law and that's a fact that needs to be addressed despite whatever compassion might be appropriate for this person.

† A commenter has suggested that this idea originated with Congressional Democrats, not the Reagan White House. I haven't checked to see if he's right. But even if that is true, Reagan still signed off on the idea of amnesty when he could have vetoed it.

Unfair Documentaries Are Still Unfair Even When I Agree With Them

If you were to watch this video without a critical mind, you'd probably wind up feeling outraged.

But as someone who has had his own thoughts and beliefs tested by countless documentaries and other media productions, and who later in life had a chance to see and even help make other kinds of media and presentations intended to persuade, I've got a little bit of familiarity with some of the tricks of the trade. So although the slant of the video favors a viewpoint I adhere to, I still find what is presented here slimy and dishonest. Not to defend the creationists in the video, but it is fairly clear to me that they are being presented in an unfair light.

First of all, the choice of Dayton, Tennessee as the locus for the filming is obviously a hardly random choice. In the opening segments of the clip, the narrator makes reference to Dayton's past, obviously talking about the Scopes Monkey Trial. The good people of Dayton were amazed that their stunt trial left them the laughingstocks of America, that they were portrayed as superstitious, backwards, and ignorant hillbillies because they were opposed to the teaching of evolution. Not only is that a true bit of history, but one which the teacher -- whose southern accent is thick and who is stereotypically obese -- seems to be quite conscious of.

One thing we don't know is how many science teachers there are at the high school in Dayton, Tennessee. Perhaps there is more than one and this one was picked by the producers for not only his attitude (the politically correct one for his area) but also for his physical appearance, which plays in to Eastern Seaboard and West Coast stereotypes about what people in the South are like. Being a West Coaster who lived in Tennessee -- not all that far from Dayton, and who made court appearances in Dayton at the Rhea County Court -- and who has carried around a few more pounds than he really ought to be carrying in both California and Tennessee, I'm somewhat sensitive to the subject. Yes, there are obese Southerners. There are obese New Yorkers and Californians, too. Plenty of them. Being fat doesn't mean you're stupid or ignorant. It means you're fat, and in our thin-centric society and with the biological pressures inherent in being human, that's punishment enough.

Nor is there any real reason to believe that the teacher is stupid or uneducated. He isn't shown teaching evolution; he is shown leading a classroom discussion of it. Now, it is probably true that he can't broach the subject without causing a discussion, and that's a real issue that the documentary should point out. And it's probably also true and fair game to point out that his students resist this knowledge, knowledge which he himself finds conflicts with his religious beliefs. So maybe it's even fair game to say that the teacher finds his religious beliefs at odds with the law and his own education, and we see him breaking the law (as it is portrayed) to reconcile that. Okay, that's fair game too.

But so what? It's not like his students don't know that the brand of Christianity popular in their area is at odds with evolution and has been since Darwin's time. It would defy belief to suggest that the students come in to his class tabula rasa and don't bring up creationism on their own. And when they do, the teacher would be doing a disservice to his students to not address the topic. Moreover, he has the personal freedom to worship as he chooses and believe as he chooses on his own time, and the academic freedom as part of his freedom of expression to teach the assigned subject matter in the way he thinks is best. What the state can do is tell him what to teach. There is no evidence in the clip that he did not lecture on or assign relevant and factually correct reading on the subject of evolution.

There is evidence that this teaching didn't take. Notice how the one student refused to even acknowledge evolution as a "theory" and said that it hadn't been "proved." This goes to a misunderstanding of what "theories" and "proof" are, and indicates a lack of critical thought in that she did not seem to think creationism needed to be "proved" in the same light in order to be a place where she could rest, intellectually. Notice also the acceptance of the "irreducible complexity" argument of intelligent design advocates, although there seems to be no evidence that the public school teacher had taught this theory to his students.

Then, there is the last student, who asks about racial groups within the human species. We should remember that he is a student and not a teacher; he is learning and hasn't yet mastered his material. He is also young enough to not yet have a complete comprehension of just how offensive his remarks really are, so we need to take that into account. So I would suggest you filter those dimensions of his remarks accordingly. What is odd is that he hasn't thought through that it's quite probably the case that white people evolved from black people, not the other way around, and white people and black people can have children together. These indicate a failure to understand ideas about evolution.

What we don't see and can't know are the contents hours of film and audio left on the cutting room floor. We get dozens of seconds of film from probably hours of class time captured on film; we get dozens of seconds of statements made by the teacher out of what is likely at least an hour of an interview. We don't get questions asked to the teacher during those interviews; we don't get remarks made by the filmmakers during the process that may have prompted the students to say things they might not have on their own.

Yes, at the end of the day, the students and teacher really said these things. Yes, there is what seems to be a reflexive resistance to the concept of evolution, one which is probably a roughly accurate depiction of reality. But the producers and editors of the film have nearly limitless discretion in framing their subject, in picking and choosing their evidence and placing it out of context if need be, and of gathering only the material they wish they like in order to make the point they want to make.

I think evolution should not get short shrift in high school classrooms, even in Dayton, Tennessee. I think students should be given a fair presentation of what evolution is. I'm not convinced that has not happened here, despite the best efforts of the producers of this biased documentary to convince me otherwise. At most, I might think that the teacher is a little bit half-hearted about teaching it since he doesn't believe in it himself. At the end of the day, the students who learn this material can only be charged with demonstrating that they've learned what they've been taught -- not that they agree with it.

The problem is not that kids prefer their comforting religion to cold science. The problem is that science is being taught in a cold, half-hearted, unconvincing way.

One Of Many Revisions

It’s easy to lose sight of the fact that the Founding Fathers were not perfect people, that they made mistakes and even changed their minds about things over the course of their lives. But of course even a moment’s thought reveals that it could not have been otherwise. These were smart men, educated men, men of high ideals and tremendous daring. But they were also politicians, lawyers, and businessmen, and therefore they were used to making deals and compromises. Their own correspondence to one another and the records of their deliberations and activities reveals that they could not agree on a large number of critical issues and, most notably with the issue of slavery, were capable of that most craven of political maneuvers – the punt.

Even realizing these things, it is still possible and indeed easy to keep them in perspective as a group but still to idealize particularly favored individuals. Of them all, George Washington and Thomas Jefferson are most susceptible to this sort of misplaced apotheosis. The application of modern technology to one of the original first drafts of the Declaration of Independence, however, should disabuse Readers of any such tendency. And doing so underlines both the importance and worthiness of the finished product but also the humanity of its original author. It leaves me liking him more, identifying with him more.

The technique used is called hyperspectral imaging and was originally developed for use in astronomy. When used on one of Jefferson’s first drafts of the Declaration, however, something remarkable happened:

Fenella France, a scientist in [the Library of Congress’ Preservation Research and Testing Division], conducted the hyperspectral imaging in the fall of 2009 and discovered a blurred word under “citizens,” France said, “It had been a spine-tingling moment when I was processing data late at night and realized there was a word underneath citizens. Then I began the tough process of extracting the differences between spectrally similar materials to elucidate the lost text.”

In fact, the word Jefferson had originally used was “subjects,” in a section of the Declaration which enumerated the numerous instances by which His Majesty’s government had disregarded the rights of the colonists as Englishmen, specifically the impressments of merchant sailors into the Royal Navy:

He has constrained our fellow subjects 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.

The scholars who found this concluded that the word “subjects” had been stricken and converted to “citizens” almost immediately after it had been written. To be sure, after the Declaration, American colonists (other than in Canada and the Caribbean) were no longer “subjects” of King George, but rather free citizens of a new and independent nation – or perhaps a collection of nations; this was left somewhat unclear, likely deliberately.

But it’s also easy for me to see how Jefferson could have done this. He had been writing legal, scholarly, and historical documents for all his life as a “subject” of His Majesty the King, and had participated in the drafting of many of the petitions sent to London requesting that colonists be afforded the same rights enjoyed by Englishmen in the Mother Country, referring to these people as “subjects.” It was simply habit to refer to ordinary people as subjects of the King.

This only underlines, in my mind, the real mental and ideological leap that the Declaration of Independence really represented. No less an advocate of individual freedom and liberty than Thomas Jefferson had difficulty disconnecting the automatic and reflexive supplication to monarchy from the very act of committing treason. The switch to republicanism was a sea change in the way people thought – a switch which required training to take, even in the mind of individual liberty’s most prominent advocate amongst a group of such advocates.

Personally, this revelation adds to my sympathy for Jefferson – he was writing a legal document in his capacity as a lawyer. Horrifyingly for a lawyer, there were no direct precedents for what he was writing. A few analogies in the forms of pleading and practice left over from the Courts of Chancery, perhaps, but those were all appeals to the equity and fairness of the judge sitting in Chancery and ultimately to the judgment of the King himself. But obviously a Declaration of Independence could not take the form of an appeal, requesting or praying for a grant of independence – by way of this document, the Founders were taking it for themselves.

So grounded in his legal training, Jefferson did what came naturally and wrote a pleading. The difference between me and Jefferson is not that Jefferson was so fantastic a lawyer that he came up with the perfect word every time, the first time. As we now know, Jefferson came up with a word out of habit and custom which, almost immediately after writing it, he realized was exactly the wrong word. I’ve done that often; so has every other lawyer out there. Jefferson was as fallible as am I, as fallible as any lawyer working today or at any other time lawyers have written important documents.

No, the difference is that where I have a word processor, Jefferson had quill and parchment. He couldn’t just do a quick “control-shift-left arrow” and “backspace” and get rid of his mental slip back into his habits as an English lawyer appealing to a judge who would typically be called “My Lord” and ultimately to a monarch before whom he was required to kneel and bow. He had to smudge out the offending word and use clever penmanship to make his document achieve its political purpose.

For at the end of the day, the Declaration of Independence was not a legal document, it was (and is) a political one. Declaring independence was a political act of the leaders of the former colonies; a political act grounded on a legal tradition and justified by an appeal to legal rights. The Declaration on its face addressed itself to the entire world but in practice aimed itself squarely at King and Parliament in London, citing as it does a long list of grievances based on the violations of the legal rights of the colonial citizens as English citizens. But there was not and could not be a legal claim to independence; to claim independence from the King was treason and no court, no Chancellor, no King could or would grant a request for independence. The choice left to the Founders was to either continue to put up with the government of England doing as it had been, or to take their political independence by force.

Thus, they collectively gulped, figuratively held hands, and actually pledged their lives and honor to one another and took the great, uncertain leap of challenging the world’s greatest military power. We can easily forgive one of them for a momentary mental slip in the process of doing this, of course, but a reflection upon that momentary mental slip puts that act in perspective – and leaves me, and I hope all of you – with a greater, deeper, and more profound respect for what was actually happening.

Non-U.S. Readers are welcome to have a drink and share a meal with us (even Brits; we’re well past all that unpleasantness 234 years after the fact). And of course, happy Independence Day to all my U.S. Readers. Please take a moment to read the whole Declaration today and reflect on what it really means instead of just saying, "America, fuck yeah!"; the Declaration profoundly benefits from, and is not at all diminished by, being placed in historical, legal, and human context -- when it is, it stands as one of the most singularly brave and principled acts in human history.

A Poisonous Political Dynamic

Not much more to add to Shaun Martin here.  To be sure, this is a nonviolent offense but one that is sexual in nature -- but I agree that this isn't something that should require a guy to register as a sex offender for the rest of his life.  One wonders if a guy made a sexually suggestive gesture at a woman while at a boozy party, he would have got similar treatment -- or if a woman made a similar gesture at a man.

Probation seems about right for this guy, but getting put on the Megan's Law list does not seem appropriate.  The punishment should fit the crime.

The political dynamic of ever-accelerating punishments is easy to understand.  No legislator, no judge, no prosecutor, wants to be seen as "soft on crime," so they charge not only the maximum plausible offense and lesser-includeds, but then they take it up the next level; they mandate and insist upon harsher and harsher punishments.  This has been going on for generations now, and so when you approach already-tough crime laws, you have to prove that you are tougher than anyone who came before you.  Thus, a crime that in 1950 would have got you probation and a fine winds up being punished with mandatory public service in 1960 and then three to six months in 1970 and then one to two years in 1980 and then two to ten years in 1990 and five to twenty years in 2000 and in 2010, it's a third strike and you've got twenty-five to life.  Same crime the whole time.  Perhaps that's a little dramatic, but you get the idea.

There seems to be tremendous fear and anxiety about crime out there, or at least great political appetite for this "tough on crime" dynamic -- but the fact of the matter is, crime is down and has been going down for the better part of a generation.  As we have fewer and fewer criminals, do we have to be harsher and harsher on them?  Because the escalating one-way street is eventually poisonous to justice.

Tesla IPO

I don't follow things like initial public offerings very closely, but I was interested to learn that Tesla Motors had an IPO today.  Had I known, I'd have considered taking a flier on it.  The Tesla Roadster inspired automotive lust in me from the moment I laid eyes on it in its Westwood showroom, and its development of a four-door sedan seems like a great next step.

Frankly, I think it would behoove the company to look at making luxury cars, sacrificing the high performance of its Roadster for the heavier weight and greater comfort of something like a 7-series BMW while still appealing to the high end of the auto consumer market.  But it looks like instead, they're going to compete directly with the Chevy Volt.

In any event, I think this is a company that will do well in the future.  It's getting the funding it needs at the right time in its development.  It's not been profitable yet, but that doesn't mean it won't be.  One day I can see Tesla growing to the point that it replaced Chrysler as the #3 American auto maker.  Another opinion voiced about the subject was that it will be moderately profitable but always catering to a niche market; it will not have the mass-market appeal of, for instance, Chevrolet.  Still another opinion is that electric cars are doomed in the high-end market; aside from a few novelty buyers, sports car buyers want to hear a rich, throaty "vroom-vroom" and feel the vibration of an engine and will never fully embrace a glorified golf cart.

Elena Kagan Does Not Take The First Amendment Seriously

So says Legal Satyricon (a law banning books is okay as long as it is not actually used) and the Secular Coalition for America (citing five examples of a disregard of the principle of separation of church and state).  Indeed, it is disturbing to think that the author and proponent of a categorical restructuring of free speech law which was called "startling and dangerous" by the Chief Justice in one of the most important free speech cases of this Supreme Court term, and who counts herself as within the ranks of "those of us who favor some form of pornography and hate speech regulation" indeed seems to have a causal attitude towards First Amendment rights in general.

While it is entirely possible that most if not all of these positions were taken in the course of advocacy of her client, the government, over time a lawyer cannot help but acquire at least some familiarity, comfort, and ideological congruence with arguments that the lawyer makes over and over again.  Additionally, while Dean of Harvard Law School and otherwise in academia, she was free to espouse whatever beliefs she thought were normatively best.  I'm finding myself becoming more and more persuaded that Elena Kagan has a personal viewpoint of First Amendment rights such that she considers them at best an inconvenience to good government, and at worst, not within the appropriate ambit of the judiciary to safeguard.

If that is the case, then that would prove the biggest civil rights disappointment yet of the Obama Administration, and I would have to register my hopes that she is not confirmed to a lifetime appointment to the Court which is supposed to be the ultimate guardian of individual rights.

Hey It Needs To Be Done

Well, it didn't take long for what is actually a reasonable starting point for a dialogue about how to handle Social Security's impending financial depletion to be irresponsibly demagogued by veracity-deficient liberals.

For the record, Congressman Boehner said he would raise the benefits eligibility age to 70 for people who have more than 20 years to retirement, meaning by definition people younger than fifty.  He also said he would means-test for the wealthiest Americans, meaning that the very "fat cats" he's accused of protecting would be the ones who would lose the benefits that they really don't need anyway.

But the bigger point is that if we are going to have Social Security in some kind of recognizable form after the 2020's, we must 1) decrease the benefits paid through some combination of reducing the amount of money paid out and delaying eligibility for benefits, or 2) increase payroll and employment taxes to put more money into the system because there is no "lockbox" and very near the time that I publish this post at the end of the 2009-2010 fiscal year, the Social Security Administration is moving from a regime in which outflows from the trust fund exceed inflows.

A Day In Criminal Court

I had a motion in an eviction case today and the other side filed an affidavit on the assigned judge.  Usually, this would result in the case going over to the other civil judge, but he was on vacation today.  So instead it went to a judge in a criminal court, and we wound up sitting around for three hours listening to arraignments, plea-bargains, and sentencing.

One of the things that impressed me about the proceedings was not the thoroughness with which the judge approached the defendants' Constitutional rights, but rather the detail with which she treated the probation or O.R. terms.  And some of it seemed very stark and painful to hear.  "You are not to own, possess, or be in the presence of firearms.  This is a lifetime ban.  You are to submit to searches of your person, your effects, your vehicle, and your home by any law enforcement officer, with or without probable cause or reasonable suspicion, without notice, and at any time."  For a felon, the ban on owning weapons is probably a good idea, but hearing it expressed in that fashion seemed harsh.  I don't own a gun, but if I wanted to, I could -- and I like that this is my might.  If a cop wants to shake me down for evidence, I can demand that the cop explain why or require that the cop produce a warrant.  I value that right very much. 

How awful to have those rights stripped from you.  How dehumanizing to have to stand there in court, wearing a county-issued jumpsuit, and have a stranger in a black robe unemotionally recite these diminution of your citizenship.  How terrifying to have to accept the advice of a stranger who is your appointed attorney (she may well really be on your side but probably doesn't have the time to build a significant relationship of trust with you) who tells you that it's probably better for you to spend some time in jail than the other alternatives available to you.  Jail seems like a very scary place to me.

It was clear the judge thought there were better and more pressing demands on her time than another judge's civil calendar.  She ran through long-winded recitals of rights for every defendant, and detailed descriptions of the terms of prison and jail sentences (for the uninitiated, "jail" is a facility which you are intended to stay in for less than a year, and "prison" is for visits of more than a year; your results may vary).  At one point, there was a break in the action and one of the prosecutors turned to me and expressed frustration with the slow pace of the proceedings.  Apparently he was used to doing things about three times faster than what was being done.  It was hard to tell if the public defenders were similarly frustrated; they were very busy trying to tell their clients what was or was not a good deal and hashing out plea arrangements with the prosecutor.

After a break for the morning recess and returning for the afternoon calendar, the judge heard the motion and got it wrong, not understanding that when the plaintiff remits all claims for money, habitability ceases to be an issue preventing entry of a judgment for possession.  Nor did she care that the defendant had failed to invoke that defense at all in the basic pleadings but instead raised it only in a declaration opposing the motion.  So in addition to all that good fun described above, we got a bad ruling and now our client is going to have to pay even more money than before to get this troublesome piece of crappy property vacant so he can rehabilitate it and avoid habitability issues in the future.

In the meantime, he's apparently supposed to somehow teleport all the trash away and use telekinesis to repair the claimed damage to the property because the tenant will not allow him to enter the premises and make repairs.  But this sort of Catch-22 is a normal frustration for evictions.  Getting sent to a criminal court where the law and facts get short shrift from the bench is not.

Solar Not Quite As Green As Touted

For the most part, I think that solar power generation is part of the wave of the future.  It isn't always reliable (clouds and night) and so far it isn't super-efficient, but it's getting there.  But one advantage of solar power that we are supposed to believe in is that it has little to no environmental impact.  Well, think again.  Its use of fresh water -- a semi-renewable resource from a global perspective, perhaps, but not one that can be easily recaptured in process -- as well as a greater-than-you-might-expect visual and terrain impact are significant environmental issues.  Not as serious as oil slicks larger than some nations in the Gulf of Mexico, to be sure, but also not a "zero impact" technology. 

The author is clearly a fan of photovoltaic solar generation, which is a great technology, and decentralizing it among a lot of locations and on existing structures, so that its overall environmental impact is minimized.  Great thoughts, but even that is not without environmental impact, because electricity has to get from its generation location to its ultimate use, which is mainly in urban areas that will need to import power from elsewhere, so we're still talking about a lot of wires to move electricity around.  And photovoltaic solar generation is pretty much the most expensive electricity out there, looking at a watt-for-watt cost and taking into account the cost of producing the materials necessary to come up with electricity over the lifespan of the generation facility.  So while perhaps the most environmentally pure, it is also among the least economically desirable ways to go.  For the time being, at least, economy is a bigger driver in this arena than ecology.

This is just a reminder that there is almost no way to generate electricity without some negative environmental impact.  There is no solution that does not involve some kind of a trade-off.  We should of course continue to figure out cheaper ways to make photovoltaic solar generators.  We should also continue to develop wind farms.  But for the big, reliable power needs of an advanced industrial economy like ours, at the end of the day our short- and mid-term power needs will only be met by nuclear fission.

Two Developments In The Recently Unfashionable Upper House

First and more importantly, the irregularly-recurrent legal kabuki theater known as Supreme Court confirmation hearings have begun, this time for Solicitor General Elena Kagan's nomination by the President to replace retiring Justice John Paul Stevens.  General Kagan gave a scripted opening statement, promising that her judicial philosophy would be a "modest" one but otherwise revealing nothing at all, which was followed by interminable hours of vacuous speech-making by the Senators on the panel.  The end result is that the only fact which remarkable at all to be gleaned from this proceeding was Kagan's use of the same word, "modest," invoked by Chief Justice John Roberts in his confirmation hearings.  Critics of Roberts have claimed that since assuming office, his rulings have been anything but modest; but to base such a criticism of Roberts on his confirmation hearings attributes a level of jurisprudential significance to them which is entirely fictitious.  A similar, albeit politically reversed, dynamic is now all but certain to emerge when Justice Kagan is criticized in the future.

Second and more momentously, Robert Byrd has finally died.  America's longest-serving legislator, somehow forgiven within the Democratic party for having joined the Ku Klux Klan in his youth (he rose to the rank of "Grand Cyclops" and I don't even pretend to know what that means), and the undertaker of the Atlas-like labor of moving the Federal government, bit by bit, to West Virgnia, Senator Byrd holds part of the record for elections to the Senate (nine times) and has been helping govern the nation and funnel more than West Virginia's share of the Federal budget to that mountainous state since the Eisenhower Administration, earning him the title "Emperor Palpatine of Pork" by Citizens Against Government Waste.  More recently, he tried to split the baby on the impeachment of President Clinton, moving to dismiss the charges against Clinton at the same time he insisted that what Clinton had done was a serious problem and voting to censure Clinton for his perjury; he also tried to have it both ways on abortion, flag desecration, same-sex marriage, and environmental protection.  Thoroughly a creature of Washington politics, Byrd's passage will be missed greatly in his home state but in my mind he was a symbol of everything I dislike about the way politics is done in the contemporary era.  While I frankly welcome his absence from the Senate, I realistically anticipate that his replacement will be someone very much like himself (West Virginia's Governor is a Democrat) and of course he was loved by his family and friends and their grief at his loss should be acknowledged and respected regardless of the now-departed Senator's political history.

An Atheist In Charge Down Under

When I first heard that Australia had got a new Prime Minister, the first woman to hold that position, I sort of yawned. The idea of a woman leading a nation is simply not remarkable to me; women have been in politics long enough and enough women have demonstrated political ability and nerve that it's been proven to my satisfaction many times over that women can lead politically as well as men.

But when I found out that she does not believe in God, I sat up and took notice. Better yet, she is forthright and then dismissive about the matter:

She says does not go through religious rituals for the sake of appearance.

"I am not going to pretend a faith I don't feel," she said.

"I am what I am and people will judge that.

"For people of faith, I think the greatest compliment I could pay to them is to respect their genuinely held beliefs and not to engage in some pretence about mine."

"I grew up in the Christian church, a Christian background. I won prizes for catechism, for being able to remember Bible verses. I am steeped in that tradition, but I've made decisions in my adult life about my own views.

"I'm worried about the national interest. About doing the right thing by Australians. And I'll allow people to form their own views about whatever is going to drive their views."

Prime Minister Gillard attained her office by way of a squabble between two factions of the Labor Party, in which it appeared that she led a movement by the more leftward wing to wrest control of the leadership from the Tony Blair-like market reform Laborites led by the former Prime Minister, Paul Kevin Rudd. This is not an auspicious beginning to her leadership of her nation; she must now re-unify her own party and turn the government around, because the opposition Tories can point to both tough economic times and disunity within the Labor party when it comes time for elections again. Gillard will have her work cut out for her.

Talk about things that could never happen here.