The White Tiger

MITHRIDATES
So let's talk about India. Why? Because I'm going there in ten days and am reading a Man Booker Prize for Fiction winning novel by an Indian about India. OK, I know there was a terrible incident in Mumbai this past week, and it was truly awful, but I think it's been covered fairly thoroughly in the Mainstream Media and, quite frankly, I don't really have much to add. Well, except that I'm going to India anyway, you terrorist fuckwads!

Which brings me to The White Tiger by Aravind Adiga. Look, this obviously isn't the first time you've heard of this truly original novel. Not only do I think how the Economist wants me to think, but I read what the Economist wants me to read. But in case you haven't got around to it yet, please feel free to do so. The book is about social classes, freedom, tradition, and all sorts of other stuff, but the parts about Indian democracy are just brilliant — all through the eyes of an uneducated, impoverished villager. A few highlights to pique your interest:

• I was listening to a program on the radio about this man called Castro who threw the rich out of his country and freed his people.


• I gather you yellow-skinned men, despite your triumphs in sewage, drinking water, and Olympic gold medals, still don't have democracy. Some politician on the radio was saying that that's why we Indians were going to beat you: we may not have sewage, drinking water, and Olympic gold medals, but we do have democracy. If I were making a country, I'd get the sewage pipes first, then the democracy, then I'd go about giving pamphlets and statues of Gandhi to other people, but what do I know? I'm just a murderer!


• The Great Socialist himself is said to have embezzled one billion rupees from the Darkness, and transferred that money into a bank account in a small, beautiful country in Europe full of white people and black money.


• "It's the way it always is," my father told me that night. "I've seen twelve elections — five general, five state, and two local — and someone else has voted for me twelve times. I've heard that people in the other India get to vote for themselves — isn't that something?"


• They sat in silence, which confused me. If I had just gone into the President's House, I'd roll down the windows and shout it aloud to everyone on the road! "Look at that." "What?" "That Statue." I looked out the window to see a large bronze statue of a group of men — this is a well-known statue, which you will no doubt see in Delhi: at the head is Mahatma Gandhi, with his walking stick, and behind him follow the people of India, being led from darkness to light. The Mongoose squinted at the statue. "What about it? I've seen it before." "We're driving past Gandhi, after just having given a bribe to a minister. It's a fucking joke, isn't it?" "You sound like your wife now," the Mongoose said. "I don't like swearing — it's not part of our traditions here." But Mr. Ashok was too red in the face to keep quiet. "It is a fucking joke — our political system — and I'll keep saying it as long as I like." "Things are complicated in India, Ashok. It's not like in America. Please reserve your judgment."


• The jails of Delhi are full of drivers who are there behind bars because they are taking the blame for their good, solid middle-class masters. We have left the villages, but the masters still own us, body, soul, and arse. Yes, that's right: we all live in the world's greatest democracy. What a fucking joke. Doesn't the driver's family protest? Far from it. They would actually go bragging. Their boy Balram had taken the fall, gone to Tihar Jail for his employer. He was loyal as a dog. He was the perfect servant.


• The Great Indian Rooster Coop. Do you have something like it in China too? I doubt it, Mr. Jiabao. Or you wouldn't need the Communist Party to shoot people and a secret police to raid their houses at night and put them in jail like I've heard you have over there. Here in India we have no dictatorship. No secret police. That's because we have the coop. Never before in human history have so few owed so much to so many, Mr. Jiabao. A handful of men in this country have trained the remaining 99.9 percent — as strong, talented, as intelligent in every way — to exist in perpetual servitude; a servitude so strong that you can put the key of his emancipation in a man's hands and he will throw it back at you with a curse.

Oh, I could go on and on copying someone else's words. But why bother? Go read the book.

State-Level Turkey-Pardoning: Is It Legal?

PHUTATORIUS
The eyes of the nation continue to be fixed on now-just-Governor Sarah Palin, who amused and bemused us last week with her high-profile turkey-pardoning pronouncement and subsequent "Faces of Death 2008" video-shoot. While I swallowed my dinner back down I had occasion to wonder: does a state governor really get to pardon a turkey?

I don't mean to pile on Ms. Palin. Well, I do — but not today. Today I'm thinking about federalism, the Constitution's Supremacy Clause, preemption, and what could happen to America's turkey factories (er, growers) if the chief executives of the Several States continue to go around relieving the nation's gobblers from their late-November obligations. This wasn't just an isolated incident in Alaska, after all: the governors of Alabama, Minnesota, Missouri, and North Dakota all made news this year with similar gestures of clemency.

This is all well and good, a break from politics for a bit of "levity," as Governor Palin said. But when you consider that these governors probably don't have the legal authority to put these turkeys back on the streets, it all starts to look a bit sinister. It's well-established, under the law, that the federal and state governments operate distinct, parallel criminal justice systems. Indeed, it's constitutionally axiomatic (by which I mean, "everybody but Sarah Palin should know") that the governor of a state can't use his/her pardon powers to excuse a person from federal charges.

With that in mind, and when you consider that Thanksgiving is a national holiday, one can't but conclude that these soft-on-poultry governors are acting in blatant excess of their constitutional powers. It's an open-and-shut case. Sure, all this seems "cute." The people smile and nod while these state officials take aim at the core of our constitutional system. A turkey wins its freedom today, and this seems like a laudable result. But what of tomorrow? What powers will these ambitious governors feel emboldened to arrogate to themselves tomorrow?

The Law is the Law. Unless the President of the United States intervenes to save them, these turkeys must die. For the sake of our nation, these turkeys must die.

Let's Play Stump the TiVo

PHUTATORIUS
I'd like to thank Fox for its re-titling of 24 as 24: Redemption this year. This wholly unnecessary change (how much value does it add, really, except to tell me I should be on the lookout for instances of redemption over the next 24 hours?) completely outwitted my DVR, which despite its charming anthropomorphic logo, is still very much a machine that only complies with precisely-worded instructions.

TiVo's instructions were to record any and all airings of a television show called 24. So programmed, the DVR happily ignored the two-hour premiere of 24: Redemption that aired last Sunday.

Now I have to play catchup, all because a bunch of idiots sitting in a boardroom thought they'd come up with something clever.

UPDATE: Looks like Amazon has the first episode available for sale for $9.99. I smell opportunism.

Black Friday: It's Tramplin' Time!

PHUTATORIUS
Well, The Economy can't be in that bad a state, if America's shopperpaths are still up at 5 a.m. on the Friday morning after Thanksgiving, assembling into value-grabbing hordes to storm Wal-Marts and trample their employees.

For my part, I don't much get this whole phenomenon. I suppose my outgroup lack of understanding derives, at least in part, from the fact that my family eats its Thanksgiving dinner at dinnertime, which results in all of us staying up way too late drinking coffee and eating pie, such that not one among us — not even the kids — has even stirred by the time the zealots have begun to lay siege to America's storefronts.

That's it, Phutatorius. Blame it all on the Noon-Dinner Weirdos. As if our nation isn't divided enough.

But seriously — I don't think the tryptophan has worn off yet, and it's mid-afternoon on Friday. It just absolutely stuns me that people are able to work themselves up into such a froth before sunup.

Don't get me wrong. I've had my day. I remember back in college, during reading period, the College announced they were handing out free buffalo wings at the cafeteria. Doors would open at exactly 9 p.m. We all got worked up out in the hall and started banging on the doors. When they opened we all bum-rushed the winged-up tables on the far side of the caf. A lot of us were in full-sprint with the tables hard upon us; some people went into baseball slides to avoid bashing their abs. They came up on the far side of the tables and took flak from the servers while the rest of us looted the wing bins.

There was something exhilarating about this, but we were in college. We were young, stupid, jacked up on caffeine, and it was a reasonable hour of the day. Nobody got hurt, and the incident didn't make news — not even the campus paper.

Contrast the "adults" who ran a man over and left him to die out on Long Island today, just so they could be the first to get half off a flat-screen HDTV. You'd like there to be a Conscience Channel inserted in these jerks' cable TV packages; it would run 24-7 with images of people screaming and crying over the Black Friday casualties. How's the picture, asshole? Was it everything you wanted?

I was on the phone with a friend of mine earlier today, and we began to speculate about what causes this every year: is there something in the turkeys? Is Butterball lacing their holiday offerings with PCP, or some other time-release nefarious berserker chemical that causes anyone who ingests it to embark on rampages in relentless pursuit of high-priced consumer electronics? And, for that matter, are the turkey sellers in cahoots with Sony, Sharp, Toshiba, Vizio, Best Buy?

And any reasonable person has to start asking tough questions about security. Seems a bit absurd to me that all the Honey-Baked Ham outlets go into hard lockdown this time of the year, with rings of cordons and police details — and yet every WalMart in the country is allowed to lapse into a Hobbesian state of nature.

Yeah: I've got a lot of questions about this crap, and I have to expect I won't see them answered until the congressional subpoenas issue. In the interim, I await the upbeat stories on CNBC: sure, folks are beaten senseless and/or dying in Aisle 9, but the level of unnecessary violence indicates high consumer confidence to kick off what we thought would be a slack holiday shopping season. So hooray!

UPDATE: gunplay at a California Toys 'R' Us. Terrific. To all you folks abroad who thought that America turned a corner with Barack Obama's election, here we are playing to type again, with our Wild West shootouts over access to consumer goods. What do you want to bet the triggering "dispute" was over who had rights to the last Nintendo Wii?

Oh my god . . .

MITHRIDATES
At some point we'll tackle health care reform in this space, but I just want to get it out there right now and be the first to say that Jesse Jackson Jr is insane.

Here's a Revenue Model for You

PHUTATORIUS
Yes yes yes, that's great. You can use it to upload pictures and tell people what bands you like. But how is it going to MAKE MONEY?

"Well, the plan is to exploit folks' predilections for narcissism and social posturing to gather all sorts of information about them. Then we'll sell them specially-targeted ads based on that information. When that practice sets off the Privacy Dorks, we'll cave and make the behavioral ads optional. The Privacy Dorks will opt out, but who wants to know what's on THEIR grocery lists, anyway?

But this is just the tip of the iceberg. The real trick here is to lure in the spammers. When they arrive, as of necessity they must (this being the Internet, after all), we'll slap a lawsuit on them. We'll sue the bajeezus out of them under the CAN-SPAM Act.

And the court will award us $873 million in damages. Pardon me while I write that out checkbook-style for you: EIGHT HUNDRED AND SEVENTY-THREE MILLION DOLLARS. That's more than twice our projected revenue for the calendar year. And that's just from that one dude in Canada. Tons more where he came from, right?"

Seriously, though: you won't be able to collect $873 million from that dude in Canada. I mean, you'll be lucky to get 873 DOLLARS. Right?

"Nah nah nah nah! I can't hear you! We're in the money! We're in the money! We've got a lot of what it takes . . ."

[fade out]

Oh, the Huge Manatee

PHUTATORIUS


To this I have nothing to add.

UPDATE: 3:36 p.m.

No — wait. I do have something to add.

Q & A: The Constitutional Conundrum of the Proposition 8 Litigation

PHUTATORIUS
Q. Can anti-Proposition 8 interests really get the California Supreme Court to invalidate a constitutional amendment?

A. They can try. That's how the Court ruled last week.

It looks like one "surface question" for the Court to consider is to what extent the constitutional change to ban same-sex marriage must be accomplished by "revision" rather than "amendment." The words sure do sound synonymous, but under the California constitution they are terms of art: an amendment requires only a two-thirds vote in both houses of the legislature, followed by an up-down majority ballot-initiative vote — as happened here. A revision requires the convening, after a two-thirds vote in both houses to proceed, of a constitutional convention.

Naturally, the California constitution doesn't say a heck of a lot (nothing, actually) about what sort of measures are appropriate for amendment and what sort ought to run the more rigorous procedural gantlet. But the general gist of the law on this point is that the little piddling changes are the stuff of amendments, whereas the grander "what are we doing to our government?" questions are appropriately resolved by revision.

The second "surface question" is whether it violates the constitutional separation of powers for the legislature to prepare a ballot initiative that would overrule a decision by the state's highest court on a matter of a fundamental right.

I talk of "surface questions" because these two questions, which the Court specifically designated as appropriate for judicial review, are really the constitutional "hooks" for considering the real matter at hand: what should happen when you have a general antidiscrimination principle in your constitution that, when applied in a specific case, results in a ruling that extends a right to a political minority, and then the legislature pushes through a plebiscite that results in the overrule of the Court's decision by a majority vote?

The separation of powers question taps in this issue because it's the judiciary, by and large, that bears the responsibility of protecting the rights of political minorities (especially "discrete and insular" political minorities) from incursion by the "majority rules" political branches. This is arguably a court's most important constitutional responsibility. Although practices vary (quite a lot of state court judges are elected, and not life-tenured), we expect judges to insulate themselves from the political exigencies of the moment. When a constitution promises equal protection under the law, and the government fails to deliver, it's the judges' gig to set things right. The notion that a court's exercise of this solemn responsibility merely bats the ball back cross-court to the legislature — so it can take another swing — seems constitutionally problematic.

About as problematic is the notion that protections constitutionally conferred on political minorities might be blithely overrided by a fast-track amendment process that requires only the approval of the legislature (by a 2/3 supermajority in both houses, admittedly), followed by a ballot initiative. A constitution is hardly protective of minorities of any kind if a majority can amend it to preclude those protections, simply by virtue of majority rule. So the California Supreme Court finds itself asked by the anti-Prop 8 litigants to push this issue into the category of very significant constitutional changes that must be wrought by revision, and not by amendment.

As someone who supports same-sex marriage and the constitutional role of the judiciary in protecting the rights of minority groups, I find the plaintiffs' arguments pretty compelling here. But there are important arguments to consider on the other side: in our state and federal systems we generally accept that the judiciary has the last word on constitutional matters, and the concentration of that power in the hands of very few is easier to swallow when we know there's an amendment process out there — just in case. While I don't think that amendment process was appropriately invoked here, and I would support an invalidation of Prop 8, things necessarily get a bit dicey when a court invalidates a constitutional amendment that overrules a decision that invalidated state action. We surely wouldn't want that same court to get too comfortable acting in that fashion. These controversies are always a game of chicken between the legislature and the courts, and each new round of action brings the cars closer to crashing.

What's brilliant about the legal arguments here is that the Court isn't required to favor one constitutional dictum (don't discriminate . . .) over another (. . . but in this one case it's OK). Massachusetts almost got to this point on the same-sex marriage issue, and at least one Justice in the Supreme Judicial Court rumbled that, notwithstanding that the proposed amendment articulated a specific exception to the general antidiscrimination mandate, he might just rule that some constitutional requirements (specifically, the bits that call for equal protection) are more equal than others. The California court has an out, and the anti-Prop 8 plaintiffs found it: this ballot initiative doesn't make it into the constitution, because it ought to take more than a legislative vote and ballot initiative to undercut minority rights.

It's not controversial to accept that the people can amend their constitutions, and that these amendments might even overrule considered constitutional decisions of a polity's highest court. But some thought should be given to calibrating the amendment process so that amendment doesn't simply give the people a second crack at instituting discriminatory policies against a minority. Amending a constitution ought to be hard, and it ought to be especially hard if the amendment would limit minority rights. Prop 8 proponents will argue that the 2/3, two-houses supermajority precondition to the ballot initiative is hard enough. I expect that the California Supreme Court will disagree, and rather than wage branch-on-branch warfare on a separation of powers theory, it will rule that a marriage ban was a matter for revision, not amendment, and invalidate Prop 8.

The big question is, if the Court so holds, and the people go back and push through a marriage ban by revision, will there be more litigation? Still more chicken to be played in California — stay tuned.

Governor, you're no Mitt Romney

MITHRIDATES
This lovely thank you video reminded me to post my thoughts on the qualified/not qualified debate that has surrounded a couple of recent candidates for high office. For the most part the debate followed a recurring pattern:

Brainless Lefty Partisan: Sarah Palin is not qualified for high office. She's only been governor for a couple of years and was mayor for a few years before that. Therefore she's not qualified.

Brainless Righty Partisan: Oh, yeah? Well, Barack Obama has only been in the Senate for four years. So if she's not qualified, he's not qualified [sticks out tongue]

OK, so maybe some of the debate was slightly more interesting than the above — but not much. Our Brainless Partisans above both seem to think that there's a number of years as governor/senator/congressperson/VP that constitutes a minimum qualification level for high office. Let's get the obvious out of the way — there isn't.

Here are a few folks who, looking back, proved to be effective despite thin political resumes:

George Washington: 0 years. And he may be the best one we ever had.
Andrew Jackson: 9 months Governor of Florida; 9 months Congress; 3 years Senate.
FDR: 3 years Governor of New York.
Eisenhower: 6 months Governor of American Occupation Zone in Germany.
JFK: 6 years in Congress; 7 in the Senate.
Reagan: 8 years Governor of CA

OK, now that we've dispelled this notion that there's some minimum political service requirement to be "qualified", let's move on to the next item at hand:

It does not, therefore, follow logically that anyone will do just fine.

A candidate of limited political experience better prove to me — somehow — that he or she is capable of handling the single most important, demanding, high-pressure job in the world. To that end, this Eastern Despot made a list of evaluation criteria before the first primaries on which to judge the various candidates. There is no simple numerical answer that determines who's the most qualified. It requires some thought. But the onus is on the candidate to somehow prove that he/she is up to this exceptional task.

Mitt Romney's only political experience was four years as governor of MA. But he started and ran a highly successful enterprise, turned around the SLC Olympics and demonstrated a command of the issues and an intellectual vigor.

Barack Obama only served four years in the senate, but showed intellectual capacity by working his way up from a poor family to be President of the Harvard Law Review; he taught constitutional law at the University of Chicago for 12 years — what presidential candidate has ever had his knowledge of the Constitution?; over the same period he worked as a civil rights lawyer; he ran the most effective campaign in memory and demonstrated knowledge and thoughtfulness about the issues of the day.

Hillary Clinton served only 8 years in the Senate. She taught law, was the first female partner at her law firm, spent 8 years in the Clinton White House. When she spoke on the campaign trail it was a clear that she had a deep understanding of the issues of the day. Even those that didn't like her felt that she had the cojones for the job.

None of the above three had much traditional experience, but they demonstrated that they had the gravitas for the job. Do we like everything about them? Certainly not. But they demonstrated — at least to some extent — that they wouldn't just be puppets in the hands of their advisors and had the intellect to be able to make judgments when presented with conflicting advice.

And Sarah Palin? She had little experience like the three above and started in the same hole. So she better prove that she has the combination of intellect, temperament, and leadership for the job. Did she? How so?

It's not the years in office that make the President. You better prove to me you have integrity, judgment, courage, leadership, vision, and management capabilities to be President. And Governor Palin, in this regard, you're no Mitt Romney . . .

Great Moments in Music Video

PHUTATORIUS



Start the video, now wait for it . . . wait for it . . .

THERE.

RIGHT THERE.

At 3:38.

Best Moment in the History of Music Video? I'm open to persuasion, but right now I can't think of any better.

It's this sort of thing that justifies MTV's existence. The rest of it — all the crap: Singled Out, Road Rules, Adam Curry, TRL, whatever they're doing nowadays instead of playing videos — it's well worth it, just to have moments like this.

George Will on the Constitutional Gun Right

PHUTATORIUS
Six months off news-cycle, George Will has decided to write about the eerie parallels between the Supreme Court's Heller decision, which announced a Second Amendment-based right to possession of a firearm, and Roe v. Wade. Hard to figure the time lag, except that the obvious took a while to penetrate his consciousness (unlikely: Will is an insightful fellow), or maybe there's a provision in The Conservative Writer's Rule Book by which one must allow a considerable waiting period to lapse before one can criticize a decision that the right wing likes. Actually, as the column has it, a conservative Fourth Circuit judge made these points recently in a Court of Appeals decision, and that occasioned Will's writing. Maybe we'd have seen this column earlier if Will had read and credited the insights of folks on the left who saw through this nonsense on Day One.

Anyway, better late than never. Will covers the ground pretty well here, starting with (1) throwing open a whole new litigable subject matter for regulation by the federal courts; (2) making up federal rights out of whole cloth, with the Constitution serving more as guiding light than dictator; (3) showing up "originalism" to be, in Will's words, "no barrier to 'judicial subjectivity.'" Fine, fine, and fine.

But here's the thing, George: you missed a few spots. And you're just wildly off on some others. First, "originalism" isn't so much "the doctrine that the Constitution's text means precisely what those who wrote its words meant by them." That's "strict textualism." "Originalism" is, rather, that farce of judicial prosopopoeia pursuant to which a court takes on the collective persona of the Constitution's Framers and infuses their moral authority into a decision by declaring What The Old Boys Would Have Said about the Fourth Amendment automobile exception, or a judicial override procedure for a minor seeking an abortion, or what have you.

(When I think of "originalism," I like to think of the several scenes in Bill & Ted's Excellent Adventure in which great historical figures walk confusedly around late 20th century Southern California, trying to make sense of what they see. As much as I enjoyed this as a vehicle for comedy, it stuns me that bright people might embrace it as a preferred mode of constitutional interpretation — or that we can take those same people seriously when they presume to know how Madison et al. would feel about these tough modern-day questions.)

Will also misses some important differences between Heller and Roe. One is that far from "being silent" on the question, the Second Amendment did say something about a gun right. It's just not very clear what it was saying. Reasonable judges can disagree, it seems: in Heller the Court split 5-4 on whether the Amendment's "prefatory" clause, "A well regulated Militia, being necessary to the security of a free State," sets any limitations or conditions on the "operative" clause, "the right of the People to keep and bear arms shall not be infringed." (Incidentally, only one of these is a "clause," by any reasonable grammarian's sense of the term; jurists read that term much more expansively.) And if you count the dozens of judges who passed on the question over the last seventy years, you'll actually see the weight of authority supporting the view that the right is cabined to militia-based uses, and that the Second Amendment supports no individual right. Which brings me to my second point of distinction between Heller and Roe: both announced a federal right in the course of invalidating a law, but only one — Heller — also rejected a big, serious hunk of established Supreme Court law. So when we're evaluating the competing claims of "judicial activism here," we might be inclined to take into account now-Chief Justice Roberts's assurances, at the point of nomination, that he would respect settled Supreme Court precedent, and that his vision of the Court's work was a narrow one that would not throw open the doors of the federal courts to massive overhauls of federal, state, and local regulatory schemes on so flimsy a platform as the protection of individual rights. George, I would love to have seen more on this.

Will laments the inconsistency between the conservative Justices' positions on rights they do and don't like — as do I — but we're at sixes and sevens, I think, on how that inconsistency ought to be resolved. It deeply troubles Will that federal rights might be expanding. He sees decisions announcing federal rights as cases that "traduce[] federalism," and he is bothered by the notion of courts delving into the policy minutiae that of necessity follow from protecting these rights — e.g., trigger locks (for guns), waiting periods (for guns and abortions), clinic buffers, and so on. None of this stuff is covered in the Constitution, he groans. Let's consider Will's complaints.

Federalism. — It's not federal constitutional rights that threaten federalism; it's federal regulation. The Bill of Rights describes the bare-minimum baseline rights that are to be afforded to every American, regardless of his state of origin. States are free to confer constitution-level prerogatives above and beyond those that the U.S Constitution supplies. The principles of federalism (i.e., the apportionment of powers and responsibilities between the federal government and the state government) that the Constitution advances are set forth elsewhere — in the enumerated powers granted to Congress, in the Supremacy Clause, and in the Tenth Amendment (part of the Bill of Rights, I'll admit, but specifically addressed to define the prerogatives of States, not the People, as the BOR's other provisions are). Sure, in theory it treads on states' rights to require trial by jury, and to protect freedom of speech, but these rights limit the federal government's powers and prerogratives, too, and generally in the same measure. Let's not confuse the two separate power relationships here: government v. people and federal government v. state government.

If I were inclined to be generous (I'm still deciding), I would suggest that what Will would endorse is a very narrowly circumscribed set of federal rights, with state constitutions stepping to the plate to develop "ancillary" state-specific rights (as several have done, for example, with same-sex marriage). In this way the states can serve as "laboratories of democracy" both by regulation and by extension of rights. This might have been a reasonable proposition centuries ago, but the genie is out of the bottle now. The U.S. Constitution is the primary vehicle for protecting individual rights. It's crowded most everyone else out of business, and it's the best (if not the only) game in town. This is an artifact of history: it happened because the states weren't doing their jobs. The states were enslaving people, and after the federal Constitution barred that practice, they found new and clever ways to oppress the same people. One can't seriously cry "federalism" to defeat a federal constitutional right nowadays. States' rights was code for racism forty years ago. That code has been cracked.

Micromanagement. — Ask a conservative about our court system, and by the time he's done talking he'll have you believe that judges are petty tyrants who actively seek out ways to knock down our doors and manage our day-to-day lives. And after every four stanzas of that ballad, there comes the same old refrain: "None of this is in the Constitution/They're making it all up." But let's consider reality here: judges don't create cases. They don't look for controversies to adjudicate. Parties (and their lawyers) bring lawsuits. Certainly the Constitution could not anticipate questions like triggers locks and clinic buffers. Of course they're "silent" on these points. A system that is flexible and adaptive, one that calls for the action of governments to be reviewed against the Constitution at the point of a controversy, is only reasonable. Otherwise we are expecting the Framers to have anticipated everything. It simply can't be the case that the government can freely engage in any action not expressly ruled out by the Constitution's text.

But Will knows this, and his point of attack is sharper, more subtle. And wrong. He contends that the problem isn't that the Constitution doesn't talk about trigger locks and clinic buffers — it's that it never said anything (at all, in the case of abortion, or clear, in the case of guns) about these rights. It's because the Court is manufacturing rights that it then gets bogged down considering all the ridiculous detail that comes with governments subsequently trying to erode/destroy the same rights. But the degree of detail-mongering is no greater for these "controversial" rights than it is for the several other rights that are generally accepted as adequately expressed in the Constitution. Consider the Fourth Amendment right to be free from unreasonable searches and seizures. The Court has been asked to consider the constitutionality of border searches of files on laptop computers, of flyovers of a defendant's property. They have to consider whether it's a "seizure" when a cop smashes into a perp's car during a police chase, or whether a warrant ought to be required to search a car. Details, details. Does the right against self-incrimination extend to a breathalyzer test? A DNA test? Does the First Amendment protect computer code? Detail, details. That's not how "controversial" or "stealth Constitution" rights work. That's how all rights work.

George would rather we all had fewer rights, so judges could get out of our lives. I'm not sold on that proposition. I'd like to see the inconsistencies in judicial philosophy resolved in favor of rights. Aren't rights a good thing, even if it takes judges to midwife them into existence?

HowJohnMcCainAlmostWon.com

MITHRIDATES
OK, so the ridiculous survey by John Ziegler has been rightly denounced as a farce by the Wall Street Journal and we don't need to go into all the flaws with it anymore (see end of post). And I apologize for promoting the site any more than it deserves. As is rightly pointed out by critics, the flaws in the poll can't simply be resolved by asking McCain supporters the same questions. Most of the questions that Obama supporters got "wrong" were negative, questionable "facts" about Obama. A McCain supporter is almost certainly more likely to attribute a negative statement to Obama and get the question "right."

Anyway, the whole effort is just a lesson for third graders that if you ask questions in a certain way, you can usually get the answers that support your conclusion.

But, just for fun, I thought I'd take a crack at Ziegler's challenge:

On Fox, he challenged liberals to sponsor a similar poll of McCain supporters. He told me he was sure McCain backers would do better: “They got their information from a completely different type of media, one that was not totally in the tank for Barack Obama."

And before continuing, please note the following caveat: I like John McCain and don't think this would be a "fair" survey. I think some of the answers are debatable — but no more so than Ziegler's. I'm simply illustrating how easy it would be to use misleading questions with the same type of questionable "answers" as Ziegler used to get a result showing that McCain supporters were misinformed.

So, here's my preliminary list of questions for McCain supporters. I wonder how they'd do (answers at the bottom):

1. Which candidate started his/her political career at the home of two former members of the Weather Underground?
2. Which candidate served on the board of an organization that funded Latin American death squads?
3. Which candidate addressed volunteers of ACORN — a group accused of massive voter fraud — and told them they were "what makes America special"?
4. In 2006, which candidate warmly addressed the convention of a political party that to this day advocates secession from the United States?
5. Which candidate served on an education reform board with William Ayers, a radical who bombed public buildings in the 60s and 70s to protest the Vietnam War?
6. Which candidate said of Barack Obama, "I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy?"
7. Which candidate suggested that small-town voters don't vote for them because "they get bitter, they cling to guns or religion?"
8. Which candidate received a prayer from a Kenyan witch-hunter to protect him/her from witchcraft during a political campaign?
9. Which candidate was criticized by the Senate Ethics Committee for his/her involvement with the fraudulent and corrupt activities of a financial institution whose failure cost the federal government $3 billion?
10. Which candidate's failed bid for the Presidency in 2008 ended after he/she finished fifth in the Iowa Caucuses?
11. Which candidate was married by a preacher who said "God Damn America" to his congregation?
12. Which candidate opposes scientific research into the causes of Down's Syndrome, a disorder that afflicts Sarah Palin's youngest child?
    

Answers:

1. None. Obama did not "start his political career" in Bill Ayers' living room. He just attended a fundraiser there — one of many he's attended in his career.
   
2. John McCain. He served on the board of the US Council for World Freedom, which reportedly armed and funded various unsavory groups in Latin America in the 1980s.
3. John McCain. In 2006.
4. Sarah Palin addressed the Alaska Independence Party. Her husband, Todd, was a registered member until 2002. Some fair-minded folks think it was just a statement of "party preference," not a membership. OK.
5. Why, Barack Obama, of course.
6. Why, Joe Biden, of course.
7. Why, Barack Obama, of course.
8. Sarah Palin.
9. John McCain, for his involvement in the Keating Five scandal.
10. Joe Biden's.
11. Barack Obama.
12. Sarah Palin oppposes fruit fly research.
    

Some flaws with the Ziegler poll I haven't seen mentioned elsewhere:

1. The answer to the question about who controlled both houses of Congress before this past election is not obvious. The Democrats controlled the House, but had 49 Senators. They only "controlled" both houses if you count the two independents who caucus with the Democrats. So it seems that "neither" would be an acceptable answer.
2. Obama supporters might be more likely to attribute negatives they weren't sure about to McCain; my guess is that McCain supporters would do the same thing with Obama and get Ziegler's questions "correct".
3. Some of Ziegler's questions would be easier to answer if he used terms that have been used more frequently in the media (e.g., "Bill Ayers" instead of "Weather Underground"). Even if you just read the New York Times and went to the Huffington Post for your news, you'd have heard plenty about Bill Ayers.

The rest of the flaws (e.g., questionable "facts", using Obama/Biden "facts" from long ago and current year McCain/Palin issues) have been dealt with already.

I leave open the possibility that the media overall favored Obama — but nonsense like the Ziegler survey certainly doesn't give evidence of it.

Mark May Wants Terrelle Pryor To Fail

We had inklings of this earlier in the year. It started back in the spring, when Pryor was still in high school, and May thought Pryor was taking too long to make his college choice. Pryor dared to talk back:

Mark May from ESPN is criticizing me on national television and he doesn't even know me. That kind of stuff really bothers me, when people who know nothing about me are talking about me like they know anything.

And of course Pryor's choice was Ohio State, and if you don't know how Mark May feels about Ohio State, just turn on ESPN on any given Saturday.

Earlier this season, Pryor played his way into the Buckeyes' starting QB job over 6th-year senior Todd Boeckman, and TP showed flashes of brilliance in September. May's caveat? Pryor's results were delivered against inferior competition: "Let's see how he does on the big stage." This was the snarky Han Solo imitation: "Look, good against remotes is one thing. Good against the living? That's something else." The problem is that May has nothing close to Harrison Ford charisma — and this is why he is not well-liked. His shtick is to take potshots, but the lines aren't clever and the persona is charmless. So he comes off like a jerk. Pryor didn't like it, and he made note of it. Then he went to Wisconsin and engineered a last-minute game-winning TD drive on primetime ABC.

Fast-forward to this afternoon. Consider May’s observations at halftime during today’s OSU/Illinois game:

Terrelle Pryor is making plays in this game, but you can still tell that Terrelle Pryor is a freshman. He’s going to make freshman mistakes, and that’s what you see in this game. He’ll make a great play, a brilliant play, and all of a sudden, he’ll make a freshman mistake, and he’ll turn the ball over or he’ll force the ball or throw a bad play.

Now consider what had actually happened during the game up to that point. Pryor was 5 for 8 with a TD pass and no interceptions. Two of the incompletions were balls thrown high, and the third was a pass over the middle that Vontae Davis, probably an all-Big Ten corner, managed to knock away. Davis had no shot at a pick. As far as mistakes go, the Buckeyes’ offensive unit has the one holding call on Robiskie. No delays of game, no forced timeouts to avoid one, no hold-the-ball sacks taken, no misreads or fumbles or mismanagement of the play clock. In fact, the closest thing to a “mistake” that I can see is a play in the first quarter where Pryor threw a bullet downfield over Robiskie’s head, when he had an open lane up the middle and could have scrambled for a first down.

Now consider the performance of Illinois QB Juice Williams, who fumbled on a keeper deep in his territory in the first quarter and threw an interception deep in Ohio State’s in the second. Of course, Williams is a junior, so we can’t label any of these turnovers as “freshman mistakes.”

I suppose it’s just folly, by now, to expect Mark May to offer objective analysis. But he should at least tell the truth. I realize that Pryor was heavily hyped during his senior year. I realize that recruiting has become a circus, and most any reasonable person (much less Mark May) gets exasperated by the breathless coverage of Signing Day. And it's not "interesting" for a broadcaster to say that Pryor is a terrific player whose time has come eleven games into his college career. But it's not interesting, either, to continue to reinforce the tired dictum that freshman quarterbacks aren't capable of stepping into FBS football and excelling, that of necessity they must make "freshman mistakes" — that any snaps taken by a first-year signal-caller are necessarily best described as "flash of potential, but so much to learn."

The simple fact is that Pryor played a nearly flawless half of football, and May outright rejected that fact in favor of indulging his usual anti-hype, anti-OSU, anti-Pryor sentiments. (It should be noted, too, that Pryor came out and played a nearly flawless second half of football, too.)

I understand that ESPN keeps you on, Mark May, because you "shake things up" and "keep things interesting." Fine: that's your gig. But at least do justice to what happens on the field. Be prepared to support your outlandish and partisan opinions with something approximating fact. You big doofus.