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.

"Elitist" and "Out of Touch"

I'm doing it. I've been sucked in, and I'm writing about flag lapel pins. I hate myself for it, but I've got to answer this op-ed by Michael Gerson.

Gerson openly accepts that Obama's position on the lapel pin is reasonable and even correct — to him. But in his view rank-and-file Americans (the non-"elites") aren't bright enough to understand it. As a result, Obama comes off to these Americans as elitist and distant, despite — and in fact, because of — his efforts to explain his position. To sum up: it's "elitist" and "out of touch" to have high expectations of what the American people should understand, but it's not elitist to conclude that they can't possibly understand something. This makes no sense to me at all. Maybe some further parsing, and closer attention to what words actually mean, is required.

Maybe it's "elitist" to act on the assumption (rightly, in Gerson's view) that people aren't capable of reasoning along with you, but it's "out of touch" to act on the assumption (wrongly, in Gerson's view) that they can. This would seem to comport better with conventional understandings of what these terms mean. So notwithstanding that the terms are so frequently paired in the political vernacular, it's in fact inaccurate and contradictory under these circumstances to say that Obama is "elitist and out of touch." He's just "out of touch," whereas the "elitist" label sticks better to the politicos who accept that patriotism is not forced acquiescence in symbology but nonetheless wear their little lapel pins every day, to keep the masses happy.

But let's pause for a minute and challenge Gerson's "elitist" assumption. Are Americans really not capable of understanding Obama's position? Is that the problem here? Or is it that the news continues to recycle the story, or that persons with vested interests in defeating Obama dwell on the matter and appeal to Americans in the hope that inflamed passions will override their understanding? It might just be the case that people understand Obama's position perfectly well and they have a complex idea of their own: hey Barack, if the symbol doesn't mean anything, why not just wear the damn pin and kill the story? To these people, the ongoing story describes a character flaw different from elitism or out-of-touchness: it describes an overweening pride or stubbornness.

Maybe another example would be illustrative. Let's put flag pins to one side for a minute in favor of a subject matter of lesser importance: race relations in 21st century America. Based on the generally positive reception given to Obama's race speech in all quarters, I'd have to say the American people were receptive to and understanding of Obama's complex ideas. He challenged them, but he assumed — in this case rightly that people could understand the complex ideas. In this instance Obama revealed himself to be neither "elitist" nor "out of touch." That neither of Obama's prominent opponents took him on over the substance of that speech suggests they would agree.

Based on these two cases I think it's possible to say something about Obama without coming to any conclusions about what the American people understand. In both cases, race relations and flag pins, Obama assumes people are capable of processing and understanding a complex argument. He has chosen to make the complex argument instead of indulging in superficiality. He has examined the possibilities and concluded as follows: if I'm right in my assumption, I'm neither elitist nor out of touch. If I'm wrong, I'm out of touch, but no elitist.

Obama's no elitist, then. He may be out of touch, to the extent he expects more from the American people than they're capable of delivering. In fact, he's made a strategic decision to expect more from the American people — on the theory that the people will want someone who challenges them. He's therefore embarked on an anti-elitist candidacy precisely because he has anti-elitist assumptions about the voters.

Whether or not that makes him out of touch, I leave to the elitists to decide.

VoteBoth Update

In my earlier post I advanced my suspicions that the VoteBoth website was a front for the Clinton campaign (or for Clinton campaign supporters).

It looks like the site cleaned up its act — or, to be fairer, rendered its position more clearly than it had before. Now the site's banner alternates between "Obama-Clinton '08" and "Clinton-Obama '08," without appearing to favor one candidate over another. The tagline is now "Uniting the Democratic Party with Clinton/Obama or Obama/Clinton." And the site has appended a disclaimer that reads "NOT AUTHORIZED BY ANY CANDIDATE OR CANDIDATES COMMITTEE."

Of course, the disclaimer doesn't assert neutrality; it only disclaims authorization by either candidate or his/her committee. And I'm not completely convinced Hillary supporters aren't behind this. Now that the probability of Clinton leading the ticket has sunk, in at least one news source's estimation, to below 5%, one might find it a bit presumptuous to list Clinton-Obama '08 as an option on equal footing with Obama-Clinton. And of course the Clinton-first option comes first in the tagline.

Is Vote Both simply clarifying an original intention to support an either/or ticket, so long as both candidates are on it? Or was it always for Clinton, but now it's hedging its bets?

I know that if I were Hillary, I'd be on the phone right now with Obama offering to drop out if in exchange he'd name me as his running mate straightaway.

But then again, if I were Hillary, I wouldn't be supporting the inane summer gas tax holiday.

Losing Latin America

One of the consequences (left to the reader to care or not) of growing anti-Americanism around the world (left to the reader to decide how much of it was avoidable) is the growing popularity of politicians in other countries with anti-American agendas (shocking that). But let's just talk Latin America for a quick sec and take a look at a few changes that have taken place in the political landscape in the new millennium:

• Resource rich Venezuela continued (Chavez was already in power at the turn) its slide towards policies based on anti-Americanism, crazy lefty socialist ideas, local and regional bribery, and consolidation of power. There have been recent signs of hope as some countrymen appear tired of Chavez' gross mismanagement, but Venezuela continues to bribe its neighbors into its anti-American coalition.
• In 2007, Chavez protegé Rafael Correa took power in Ecuador. Ecuador has eagerly joined the anti-American block of Hugo Chavez. Why does tiny Ecuador matter? Well, besides another radical lefty voice and the potential non-renewal of leases, Ecuador seems to have a friendly relationship with FARC. Amid all the disastrous policies of the War on Drugs, the one that actually seems to be working all right is Plan Colombia — not so much with its stated goal of reducing the flow of drugs, but in Colombia's fight with FARC. FARC has been pushed back to the borders (and at least in some cases over the border). Recently Correa sacked some military types for helping with the fight against FARC. With a reasonable administration in Ecuador, the battle against FARC might be won, but as long as they have a safe haven, who knows?
• Anyone remember Daniel Ortega, the leader of the Sandinistas that the US helped oust? Thank God we got rid of him for good, even if there might have been some actions of questionable legality in the process. Well, our friend Daniel ran again in 2006 and — with the help of some ham-fisted diplomacy by the openly anti-Ortega American ambassador — won in a quasi-legitimate vote. Nicaragua seems to be forging friendly ties with our Persian friends.
• Bolivia.

But amidst all the bad news, there's some good, too. It only took 50 years, but we finally got rid of Castro! Seriously, though, smack in the middle of all the anti-Americanism is our staunchest ally Colombia and it's pro-US leader Alvaro Uribe. Amidst all the anti-free trade and anti-American rhetoric stand Colombia. For years, the US has given aid to Colombia and kept US markets open to Colombian goods.

And so how do the Democrats propose to build on this oasis of goodwill in a continent of badwill? By destroying it!

Genius or Sleaze?

An online petition calling for Obama and Clinton to run together is making news.

I'm sorry. I misspoke. An online petition calling for Clinton and Obama to run together is making news. The group is called "Democrats United for Clinton/Obama 08," and the one-sentence petition reads as follows:

We the undersigned call upon the members of the Democratic National Committee to support a unity ticket with both Hillary Clinton and Barack Obama.

The site/petition is "Authorized and Paid For By Clinton/Obama 08."

Nowhere does the petition state who should be at the top of the ticket. This is, I think, a crucial bit of information. If I were to ascribe the most generous motives to the principals of DUCO '08 — names not available — I might say that this is the sticky part, and DUCO wants only to support the general notion of a Clinton/Obama and Obama/Clinton ticket, with the details TBD. The site is about transcending the conflict, and not perpetuating it.

But is it, really? Why does Hillary's name appear first on this page, every time? "Clinton/Obama 08" has an obvious connotation, doesn't it? Not to mention that the idea promoted here sounds a lot like an idea Hillary ingeniously floated a month ago. The site could easily have said, "Sign here, if you want these two on the same ticket, regardless of who is the Presidential nominee." It doesn't. It could also easily have said, "Hillary supports the idea of naming Obama as her running mate. Sign here, if you support Hillary for President and Obama for Veep." It doesn't say that, either.

You have to figure this site means to mislead people. If you favor an Obama/Clinton ticket over an Clinton/Obama presentation, you probably shouldn't sign it, because the Unnamed Principals could easily run off with your signature and proclaim that you and everyone else want the Clinton/Obama ticket.

Verdict: sleazy genius. I.e., it has the Clinton campaign written all over it.

Spam

What are the odds that a person would actually have the name "Viagra Cialis?" I mean, really. "Alice C. Viagra," maybe. But "Viagra Cialis?" Give me a break. I won't fall for that again.

French Boycott of the Olympics?

Uh, no. Just a threat to boycott the Opening Ceremonies.

Whatever.

I'm not someone who defaults to thinking that everything the French do is pathetic, manipulative, or chickenshit. That's right-winger territory. I'm more in the frame of mind of wondering why so much of what the French do really is pathetic, manipulative, or chickenshit. Not sure what that makes me, besides insightful and sad.

Quoth Sarkozy, further: "And if you do not stop brutally repressing ethnic minorities within your nation and financing and empowering rape and genocide abroad, I will personally refrain from attending any black-tie events in Beijing."

Add to my list of concerns about politicizing the Olympics the fact that people tend to do a lousy job of it, anyway. If I'm Nicky Sarkozy and I want to make a point, French-style, I get my Olympic delegation to fetchez la vache. If you thought the skydiving-cattle, "EAT MORE CHIKIN" stunt raised awareness of a crucial issue,



try painting "FREE TIBET" on the cows and catapulting them into the stadium. Boycotts are so tried and tired, anyway.

What do you say, Vercingetorix? You went to all this trouble to unite the Gauls, and for this?

Note to a Neighbor

Thanks for speaking with me today. I understand your position about the parking at the end of the street, on your side of the road. I want you to know that I have never encouraged anyone to park there, and we’ve never parked there ourselves. If I’ve been slow or neglectful in arranging to have parked cars moved from that location, I apologize. In today’s case I presumed, mistakenly, that you had left for the workday, and rather than trouble the cleaners to move their car immediately, I thought it would be fine to let them finish, then have them vacate the space when they were done with the work. I realize now that this was the wrong answer, and I won’t make that mistake again.

Since the day we moved in here and your daughter made known that you did not want cars parked in that location, I have emphasized to house guests and visitors that they should not park in that space. On a number of occasions I have asked them to move their cars. As I told you on the phone, I will continue to warn visitors against parking in that area, and I will continue to ask people to move whenever I see cars there and they belong to folks who are visiting our house.

As I also explained, people feel compelled to park their cars in that space, for whatever reason. Accordingly, there may be instances in which you find someone parked there, and my wife or I is not aware the car is there and we have not been in a position to get it moved. We agreed on the phone that a reasonable and appropriate response in this case is to have you contact me so I can get the car moved. I told you I would leave my phone numbers for that purpose, and here they are:

[REDACTED] (home)
[REDACTED] (mobile)

I want to reiterate that I do not think it is a reasonable and appropriate response to block the road and deny passage off of [REDACTED] Street, as you did today to my cleaners. It’s not a proportional response, it’s not legal, and it’s not safe. I also believe it is not constructive to blare your horn and call the police, but I understand that it’s within your rights to do either or both of these if you choose (as blocking the road is not).

I understand how strongly you feel about this issue, and I’m willing to do whatever it takes to keep the parking there to a minimum. You must understand, however, that my wife and I cannot keep constant surveillance over the street, and the problem will likely recur every now and then, despite our sincere best efforts. In fact, there may be cases in which persons who are not our guests are parked in that space, and we can’t answer for the offense or assist you with resolving the matter, because we don’t know the offenders. We have seen cars parked there that did not belong to anyone visiting our house. You said that you think posting a No Parking sign on the fence is unnecessary and unsightly. I think a sign would go a long way toward avoiding these situations, but I’ll defer to your judgment. If you change your mind, I’m happy to go get one and put it up.

You agreed on the phone that persons may lawfully park their cars past the driveway on our side of the road. Street parking is allowed in front of our house opposite your driveway just as it is in front of your house opposite ours. That said, as a gesture of goodwill, we will ask anyone who parks on our side of the road to park as close to the yard as possible, and if you have any preferences as to where in that zone they should park — to make it easiest for you to back out your car — please let me know and I will communicate those preferences to our visitors. This is, I think, the way neighbors should handle their affairs.

You and I both worry about “getting off on the wrong foot.” I had hoped that our relationship took a turn for the better when you helped my wife and I clear the snow from our driveway: I very much appreciated the help, and I gathered from this that neither of us might have made the best first impression on the other, but our hearts are in the right place. My goal is to maintain civil relationships with my neighbors, and the best way to do that is for us to communicate our concerns to one another and work constructively at resolving them. We should have had this morning’s conversation a long time ago. Now that we have, let’s treat this as a “do-over.” I pledge from this point to do everything I can to keep our visitors’ cars out of the offending location (we will talk to the cleaners tonight), and I only ask in return that when — as may happen from time to time — some visitor to our house unwittingly parks in that space, and you learn of it before I do, you simply let me know and refrain from these dramatic, confrontational gestures.

Sincerely,

[Phutatorius]

Who Ought To Be Bailout-Eligible?

It appears the Federal Reserve will be providing a limited bailout to Bear Stearns, which will have a 28-day credit extension courtesy of the federal government. Commentators who know a heck of a lot more about this than me are wondering why it's suddenly the government's job to cover the downside of aggressive investment strategies on Wall Street.

The answer I'm hearing, which makes some sense to me, is that the government ought to take limited steps to contain the fallout of these bad decisions. In short, allowing Bear Stearns to disintegrate completely would be really bad for the economy. And although it's not necessarily good for the economy to spare investors the punishment for their bad decisions, the Feds can balance two competing interests — protecting the larger economy and ensuring that brokerage houses "bear" the downside of the market (two puns intended) — with a calibrated approach that gives some assistance to BS (yes, another pun), without carrying the company on its back.

So fine. Now the turn:

Hillary Clinton gave an interview on NPR some time ago (yes, to the "latte-drinking crowd," surprisingly), and she was asked what she thought of Mike Huckabee's position that federal assistance to subprime borrowers was a bad idea. Huckabee's argument was simple, and it had homespun, surface appeal. As he put it, why should a taxpayer who made good decisions and bought as much house as he could afford have to pay for his foolhardy neighbor's mortgage, too? Clinton answered with three points:

(1) For the subprime mess to happen, a lot of people had to make bad decisions — borrowers, lenders, and investors, to name the three most obvious categories — and the borrowers were arguably the least reckless and culpable, but they expected to bear the brunt of the consequences, by losing their homes.

(2) Quite a lot of the borrowers signed on to exploitative contractual terms by which advance payments against principal triggered dramatic percentage rate increases. In attempts to "do the right thing" and get ahead of their payments, they paid more than their monthly bills required, triggering the oppressive rates.

(3) The housing market is interconnected. There is not a separate market for houses under subprime loans. The more borrowers default on their loans, the more the housing market is affected, and the "wise lender" that Huckabee would protect from the government loses equity in his house, because his foolhardy neighbors are flooding the market with homes they can't afford.

Now, to me, Hillary's argument (3) sounds quite a lot like the argument for bailing out Bear Stearns. One wonders, then, why it's okay for the government to cut breaks to brokerage houses, but to offer help to borrowers is creeping socialism in the minds of our free-market conservatives. If there's going to be an inconsistency here, shouldn't it favor the borrowers, who, as Ms. Clinton observed in argument (1), at least have the equities in their favor?

Untitled Brio Track #9 (March 16, 2008)

I was looking for something long and lean here, with a lot of networking and switches in the southeast corner, and then a long hairpin-style out-and-back on the northwest end. I've been interested in curved bridges lately, and the focal point of this piece — the knot in the bow tie, if you will — is the curved bridge over the Y-switch track. That's an innovation, not a gimmick, if you're keeping score.

I would also like to point out the inverted-L design. The idea here was to enable The Boy to get right up on the track by nestling into that right(ish) angle.

There were a lot of positive reactions to this piece around the living room. All in all, I was pleased with the result, and it survived (with minor interruptions of service) almost twenty-four hours before a mid-morning rampage — we think The Boy was jacked up on maple syrup — did it in.

Ah, the evanescence of Art.

Spring Forward, Flexibly

It's that time of year again, when your weekend becomes an hour shorter so we can all shift our clocks. I'd like to take this occasion to re-present what I thought was a pretty fantastic idea — the Flexible Spring Forward.

The idea is simple and straightforward. Rather than lose an hour of sleep between Saturday and Sunday, you pick your own time to jump ahead. As I proposed several years ago on my pilot blog:

Give everybody a week to spring ahead, and let 'em make the jump whenever they damn well please. Who wouldn't want to show up to work an hour late all week long and tell the boss, "It's cool, man — I just haven't sprung yet?" Then 4:00 comes on Friday afternoon, and wham! you skip ahead to go-home time, sparing yourself sixty minutes of tedium and the coffee cup another hour of pencil-tapping.

Or suppose you go into McDonald's, craving a Big Mac, and the guy at the counter says, "It's ten o'clock, sir. We're only serving breakfast." Oh, yeah? Well you can shove your Egg McMuffins where the sun don't shine, pal, because I've just declared it lunchtime. SUPER-SIZE ME!

Suffering through travel delays? Plane or train not due to depart for another fifty minutes? Hit that spring button, baby, and you'll be instantly in the air/on track and closing in on your destination.

Here's one: somebody actually thought you'd enjoy going to the Symphony (the nerve!). You can use the hour in your pocket to make this snoozer of a Handel program half as long. Along those lines, the strategic planners among us who happen to have our yearly physicals scheduled during Spring Week can fast-forward through the more, er, awkward parts of the examination. And all you Guinness Book of World Records aspirants trying to set endurance marks (sleep-deprivation, balancing on a bicycle, jumping rope) can get an hour's leg up on your competition.

In short: who wouldn't jump at the chance to flummox Father Time once a year? Sure, there are a few logistics to work out — chiefly, keeping a record of each person's timekeeping so the bullshitters among us (you know who you are) don't try to spring more than once. Easy to fix. The government sets up a website — the usual login/password kind of deal — so that when you feel the itch to spring forward, you play your chit to the Central Server, and your spent hour is on record for anyone to see. No computer handy? Call in from your mobile phone!

Once America gets going on this, you can bet Flexible Fall Back is next. So make those October massage appointments now, because for a week that second hour is free for everyone: What do you mean, you're "done?" It's still only three o'clock by my watch. Get back to the hot oils.

The Aforedescribed Idea and all renderings, variations, toutings, vigorous defenses (with and without resort to gunplay), depictions, embodiments, Power Point presentations, and exaggerations thereof are the lawful property of the Phutatorius Idea Bank™. All rights reserved.

What do you all think?

This One's for All You Fascists Out There

From the "Funny Because It's True" Department: Godwin's Law.

More on the subject here.

Why, just this week, in an email discussion about the Presidential candidates, someone near and dear to me (but obviously of a different view than I am) cautioned against finding too much inspiration in Barack Obama, on the ground that "Hitler was inspiring to his people in the 30s."

I have to say I admire the "reductio ad Hitlerum" formulation, too. My practice has been to describe this form of argument as "dropping the H-bomb," but I'm always partial to the Latin.

Triangle Man vs. Universe Man: Who Wins?

I've been wondering about this for years now, and I don't feel like I'll ever have closure on the subject. Triangle Man and Universe Man are the two surviving, undefeated parties at the end of The Song. We're left hanging. There is an obvious classic matchup in the offing, but we're never treated to the particulars. It's sort like the AFL and NFL before the leagues instituted a Super Bowl to settle the matter.

I should qualify this talk about a "classic" matchup, as well as my AFL/NFL comparison, by noting that by no means is Universe Man a champion. He is not battle-tested. He is undefeated, but only by virtue of never having fought. Could I get behind a fighter with an 0-0 record in a contest of this magnitude? Would I put money down on him? Let's do a tale of the tape:

Location: Universe Man is the size of the entire universe, man. Simple logic commands that whatever venue the promoters select for the fight will be familiar and comfortable to him. He has per se home field advantage. That is, unless the fight breaks out in Triangle Man's house, in which case I declare it a neutral field.

Size/Agility: I cover these characteristics in tandem, for reasons you'll understand shortly. This is obviously a David and Goliath-style matchup. We don't know Triangle Man's dimensions. In fact, we don't know anything at all about him, except that he's chippy. He's chippy, and he channels hatred well. I think, though, that we can safely assume that Universe Man, at the size of the entire universe (man), will tower over Triangle Man. As the smaller party, Triangle Man is certainly the more agile combatant. For my purposes, I define "agility" as "litheness, ability to move, ability to escape and elude an attack." Universe Man takes up all the space in the universe. In theory, this renders him completely immobile, and that immobility hurts his case. On the other hand, for these same reasons Universe Man is inescapable. He completely envelops Triangle Man, thereby neutralizing Triangle Man's greater agility. (I should add that by this analysis, I find it pretty likely that this will be a lousy fight, from a spectator standpoint. By definition, Universe Man and Triangle Man must be in a clench at all times, and no amount of refereeing can separate them and make the combat worth watching.)

Shape: Cosmologists have ventured a number of theories as to Universe Man's shape. I won't presume to declare one of these models to be better or truer than another. I will say, however, that Triangle Man is pointy. Pointy is sharp, and sharp can hurt. In fact, pointy-sharp can arguably tear through the space-time fabric, if its wielder is sufficiently motivated and skilled. Advantage: Triangle Man.

Essential Qualities: As I have noted, we know very little of Triangle Man, except that he has an unblemished record, and he appears to have been the party who picked the fight in both instances. Triangle Man's irrational hatred of others fuels his aggression. He's a dynamo, no doubt about it. But remember that Universe Man has a watch with three hands, and when they meet it's a happy land, and for this reason, he is a powerful man, Universe Man. That three-handed watch may be the trump card here. If the alignment of hands conjures up happiness throughout the land, one would expect its spell to be binding on Triangle Man as well. Its effect should be to neutralize Triangle Man's aggression, thereby rendering him a substantially less formidable opponent. So long as Universe Man can hold out until minute hand, millennium hand, and eon hand meet, he has a shot here.

Deeper Analysis: Clearly Triangle Man is the symbolic embodiment of fascism, and clearly The Song means to leave us to consider the challenge of fascism to certain "universal" truths. We know the destructive effects that pointed, militant, simple-minded hatred can have on particles and persons. But what threat does it pose to the universe writ large? Are we talking about the collision between matter (in the form of Universe Man) and anti-matter (in the form of Triangle Man)? What follows? One would think an absolute canceling-out is what would follow. We're left with nothing. Emptiness, a void. Silence, you might say. When one considers that this is the likely outcome, we finally understand why The Song never reaches the point of reporting on this fight we're so curious to see. The Song doesn't mean to tantalize is. It does not mean to deprive us of this gold medal round. That's not the case. The Song just ends: it ends like everything must if Triangle Man takes up arms against Universe Man. The silence does not mean that the fight never happened. It means that the fight did happen. Do you see?

So who won? Well, it depends on how you look at it. If Triangle Man and Universe Man definitionally obliterate one another, then arguably no one wins. However, it's important to note that Triangle Man is not self-reflective. Triangle Man is entirely outward focused. That is, he fights not to vindicate some important interest of his own — he fights because he hates the opponent. If Triangle Man joins a fight, and the outcome of that fight is that both parties are destroyed, then Triangle Man has achieved his principal objective and lost nothing. He has destroyed Universe Man, the object of his hatred. That he is also destroyed is immaterial. He accomplished what he came to do. Triangle Man wins.

Thus, Triangle Man, Triangle Man, Triangle Man hates Universe Man. They have a fight, Triangle wins. Triangle Man.

This is where I stand right now, today, but if past history is any guide, I will surely revisit this question again some weeks down the line, and I can't promise I won't come round to the view at that point that Universe Man is the obvious winner. Right now? today? It's Triangle Man.

In the Course of Which 2 of 3 Feigned Outrage Authors Prove Themselves To Be Nimrods

The following substantially transcribes a phone conversation late Monday night, the subject being an online Scrabble game:

Ethan Allen Hawley: What's wrong with "bailif?"

Phutatorius: I have your other "f" on my rack.

EAH: Two f's?

P: Two f's.

EAH: That's ridiculous. That can't be right.

P: Of course it's right. Name one word in English that ends in "-if."

EAH: "If."

P: Yeah, OK. Fine. But "bailiff" has two f's.

Kosovo Declares Independence . . .

. . . Serbs take their toys and go home.

(Note FO's first link to a Brisbane Times article.)

So I have occasion now to wonder: how long a waiting period has to lapse before the historically brutal and oppressive state gets to complain about the conduct of the ethnic minority it brutally oppressed? I suppose it's a subjective calculation. From where I'm sitting, though, ten years is way too short.

I say we send Jack Bauer on a secret mission into the vacant Serbian embassy to short-sheet all the beds. I'm not a master of diplomatic protocols by any means, but it seems a reasonable way to send a message. If you'd prefer something more straightforward, I propose a letter on Department of State stationery that reads, Hey, Serbia: before you come back, why don't you contribute something to world culture other than mass rape and attempted genocide? You pricks.

Should We Use the Olympics?

There's been an undercurrent in the news lately about the awkwardness with China, which will host the Olympic Games in Beijing this year, even as it tramples all over international norms in an effort to bring resources home to fuel its growing economy. Now there isn't a "developed" nation on this Earth that hasn't behaved unscrupulously on its climb into the world's economic elite. Colonial abuses, slash-and-burn agriculture, deforestation, displacement of native peoples, child labor, sweetheart deals with foreign leaders to exploit local resources — it's all there in the historical record. No one is innocent, to be sure — not even the U.S.

Right now, though, the world leader in amoral economic policy is the Chinese government. If your country has resources the Chinese economy can use, the Party will do business. It doesn't matter that you're promoting the wholesale slaughter, rape, and displacement of ethnic minorities, or that your military government just defied the international community and gave shoot-to-kill orders on peaceful protesters. Got oil, Sudan? Got pipeline prospects, Myanmar? Let's talk.

Which brings us to the Olympics, which supply an occasion for people to call attention to China's complicity in human rights disasters around the globe. Or not.

It occurs to me that, more than any other institution, the Olympics are a universally-shared human value. Sure — al Qaeda won't be sending a delegation of athletes anytime soon, notwithstanding its members' well-documented tire-course expertise. (They only do obstacle-course competitions on Battle of the Network Stars.) But nihilistic transnational terror groups excepted, everybody else loves the Olympics. Everybody believes in the Olympics, whatever else they may believe.

And so I wonder: given the Olympics' status as a shared, transcendent value, should we be using it to promote our sublunary politics, however benign and upright our intentions? I'm of two minds here. I genuinely believe that there are certain baseline human values that should enjoy the same worldwide appeal and enthusiasm that the Olympics do. Those values — life, liberty, autonomy, equal treatment, the rule of law, freedom of expression, etc. — are certainly more important to me than a shot-put contest. If we can exploit an institution like the Olympics to advance these values, then we certainly should do it. Right?

On the other hand, as I just noted, it's fair to say that the Olympics are the only value we all hold in common in this so-often vicious world. That counts for something. It counts for a lot, actually. President Carter's boycott of Moscow 1980 to protest the Soviet invasion of Afghanistan didn't accomplish much. The Eastern Bloc's retaliatory decision to eschew the L.A. games in 1984 was predictable and — dare I say it? — lame. We look back on the boycotts as pathetic gestures, instances of down-and-dirty politics sullying an institution that we hold very dear to our hearts, and that (we hope) will continue to survive and thrive after petty conflicts like the Cold War are long gone.

We'll never be able to distill the politics out of our Olympics. In fact, I would argue that we shouldn't try. Politics give the Olympics a lot of their dramatic kick, after all: we all grew up pulling for our aw-shucks regular American kids to go higher, faster, farther than the affectless Frankenroiders from East Germany. The competition offered us all a kind of safety valve: we were able to see the two camps compete — capitalism vs. communism, West vs. East played out on ice, in a pool, in the gym, rather than with ICBMs. And what better storyline is there than Jesse Owens, the epitome of grace in competition, conquering his Aryan rivals in Berlin in 1936? Without politics, Jesse Owens is Carl Lewis — a great athlete, but not a hero. (Did I say that Jesse was a Buckeye?)

The Olympics are The It-Institution. Off the record, six drinks deep into a Saturday night, the United Nations tells the bartender it wishes it could be the Olympics. No other idea has ever been so broadly embraced by the world community as M. de Coubertain's. Consider China as a classic example: this government goes around the world arming genocidaires and could give a crap who complains. But give it a shot at hosting the Olympic Games, and suddenly the Chinese are desperate to impress the international community. That's cachet, people, and you'd really like to think that cachet could be leveraged to bring the world something bigger than impenetrable performance art (though I do love you, Björk, more than you'll ever know) followed by two weeks of televised sports. On the other hand, I'm not sure who to trust to get that done, and I worry that the effort will spoil the Olympics — and we'll end up a more fragmented world community than we are even now.

Thoughts? Help?

Legislatures

Making the impossible possible, and the irrational rational, since at least 1897.

Think of all the dorky "how many decimal points can you recite?" contests that this law could have averted. Oh, you mathematicians! [shaking fist]

Hypocrisy

There is a very interesting piece in the Boston Globe about political leaders and hypocrisy.  Perhaps there's nothing terribly earth-shattering, but it puts all the pieces together in a nice way.  I'm no fan of hypocrisy, but what if the alternative is really too much consistency (and therefore an inability to learn and change course as necessary) or too much simplicity?

For Romney, the illegal immigrants working for the landscaping company he hired seems completely irrelevant and reminiscent of AGs who were disqualified because they didn't pay social security tax on their housekeeper's pay.  And we all know what happens if you disqualify AGs on these grounds - you end up having to look at pictures of Janet Reno for years.

For Obama voting to provide funds for the Iraq war, this doesn't seem to be hypocrisy at all.  Being against the war shouldn't compel someone to cut off funding.  He was right on Iraq in the beginning, but he's not a moron.  Whether he wanted it this way or not, we are at war and we need to wage it effectively.

The hypocrisy accusations against Clinton seem more valid.  Initially for a bad war, but then against it when it's unpopular and we really need to keep fighting.  It seems like hypocrisy here, but it could just be consistently bad judgment, which would be even more troubling.

I don't know too much about McCain's positions on Bush's tax cuts.  Maybe he is a weasel and a hypocrite like the rest, but it seems like in the primaries you're going to get some inconsistency from everyone as they pander to the extremes of their respective parties.

Anyway, it's an interesting read.

Specter and Spygate: Feigned Outrage, To Be Sure

So two days before the New England Patriots play in the Super Bowl, Senator Arlen Specter (R, Pennsylvania) is demanding that NFL Commissioner Roger Goodell explain why the League destroyed evidence relating to the "Spygate" scandal of earlier this year. To which I — no Boston fan, I emphasize — have to say, You've got to be kidding me. And I've got company in London's Globe and Mail.

You may remember in Week One of the NFL season, New York Jets head coach Eric Mangini complained that the Patriots had cameras trained on the Jets' sideline to record hand signals the Jets' coaching staff was making to players on the field. Goodell found that the Patriots had violated league rules, and he ruled the violation to be a flagrant one, because it came on the heels of an explicit directive the League had issued in a memorandum earlier in the week. Much teeth-gnashing and garment-rending followed. Pats head coach Bill Belichick tried to dismiss his team's violation as a simple misinterpretation of the rule. Players on other teams attributed playoff losses to the Patriots' cheating. There was much discussion of whether the use of cameras at issue here really confers a meaningful advantage, and of course there were a steady stream of excuses served up by callers to Boston sports radio on the order of "Come on — everybody does it." (As if Chuck from Quincy would be in a position to know . . .)

The Pats were docked a first-round draft pick and the League personally fined Belichick $500,000 — a non-negligible amount of money. A Jets fan filed a class action, claiming he and similarly situated football fans who bought tickets to Jets/Pats games were deprived of fairly-contested play and should get their money back. Oh, the outrage.

For those of us who could give a crap about pro football, the New York Jets, and the New England Patriots, the "Spygate" story was flatly uninteresting, much ado about nothing, a scandal hardly deserving of the "-gate" suffix that was so quickly attached to it.

But for those of us who find our sensibilities offended daily by the sad, silly personages who purportedly represent our interests in Congress — well, now we do have to dignify this subject matter, because over the past few years our earnest legislators in Washington have learned that they can score points with constituents by taking on organized sports.

First it was steroids in baseball — this is an ongoing matter of concern for the United States Congress, which holds Major League Baseball's exemption from the antitrust laws in its back pocket, so empowering it to haul the sport's august personages (and its Commissioner) into the Capitol for regular beratings.

Last year the hot topic was sports on television. As Opening Day approached and it became clearer that MLB's sale of exclusive Extra Innings programming rights to DirecTV would result in something close to a nationwide blackout of out-of-market baseball games, John Kerry got involved. Because of the NFL Network's ongoing negotiating beef with Big Cable TV, the Patriots' final regular season game against the Giants would have been available only to a limited audience. Pressure from Connecticut, Vermont, and Rhode Island Congressmen, along with a joint letter from Senators Specter and Patrick Leahy (D, Vermont), prompted Goodell to relent and make the game broadly available on the networks, so the nation could actually watch New England finish off a perfect 16-0 season.

Now Specter, citing his concerns for the "integrity" of pro football, is waving the NFL's antitrust exemption in the air, crying Look at me! Look at me! Let's put aside for just a minute whether the National Football League and Major League Baseball are comparable American "institutions." I recognize that people actually like to watch the NFL, and for the sake of argument I'll accept that point. But the gap in magnitude between the steroid scandal and Spygate is dramatic. For starters, steroids are controlled substances under federal law. Second, we gather that the use of steroids in baseball was so pervasive as to severely threaten the health of players, distort the outcomes of games, and destroy the sport's hallowed record book. Third, there is abundant evidence to suggest that team owners and league officials willfully turned a blind eye to the scandal, notwithstanding the abundant violations of federal law and the enduring threat to the integrity of the game.

Spygate is a simple instance of one team cheating, arguably to no substantial advantage. This is not a matter in which the Commissioner's Office was complicit, by commission or omission: Goodell absolutely hammered the perpetrators. The Giants stole signs down the stretch in their historic overtaking of the Dodgers in 1951. Gaylord Perry threw spitballs. Sammy Sosa and Albert Belle corked their bats. Bill Laimbeer played dirty. All that sucks. Now is it Congress's business? Humph and hardly.

I wrote to friends a couple weeks ago about my ambivalence on Congress's involvement with the steroids issue:

I'm of two minds about this. For starters, Congress is pathetic. They're not only venal, self-absorbed, and perspectiveless — they're lazy. They slap together a rewrite of the federal government's surveillance powers at the last minute so they can go on vacation — no worries, they tell us: the law only applies for six months. By then they'll have their act together. Right. And these jackasses yesterday couldn't even be bothered to know anything about the subject matter of their questioning. It's real easy to criticize Bud Selig, but it's even easier to pronounce his frickin' last name correctly. So I'm with you on one score, Mark: when you consider how seriously Congress takes its time off and how not-seriously it takes it work hours . . . well, yes, it demonstrates a bit of a priority gap for them to preoccupy themselves with hearings like this. To be fair, though, it's just one committee. I believe they do it because feigning outrage and abusing people while they're under oath is what they're good at. It gets them in front of cameras and allows them to perform. Of course, it also reveals many of them to be jackasses when they arrive utterly unprepared and then participate anyway — any one of us would be fired from our jobs if we didn't bother to prepare ourselves for work.

* * *

But I agree with Bob, too: this is a situation that Congress is peculiarly situated to help solve. MLB had absolutely no interest in policing itself until players were called to testify back in 2004. Once McGwire and Sosa humiliated themselves and the sport before Congress, the union and the league and commissioner's offices finally got on the same page and implemented an aggressive testing policy. Congress does its worst when it legislates, to be sure, but it does its best when it threatens to legislate — any institution with half a brain will walk through fire to avoid letting these bumbling idiots get their hands on it. Congress has a hook here: the antitrust exemption it's given baseball in light of its status as the national pastime. It can regulate if it wants to. Nobody wants that to happen. So calling the bad actors and nonactors to the carpet here isn't the worst idea in the world.

I know you don't think much of the sport, but baseball is an important part of our national heritage, and a lot of people in this country care about it. If [Congress] can make some noise at the last minute and help prompt the NFL to show the Patriots-Giants game to a national audience — because it expects to be historic — then certainly this is within the purview of Congress, if not its very limited range of competence.

To that I don't have much to add, except that we shouldn't be surprised that our Congressmen continue to stick their noses deeper and deeper into organized sports. It's really the perfect subject matter for them: (1) sports inflames the passions of Americans, so with sports you're assured of appealing to voters' most deeply-held beliefs (as opposed to appeals about the genocide in Darfur, which are just boring); (2) big, contemptible monied interests are involved, so you can call people in for hearings and humiliate them to general applause; and (3) the stakes are hardly life-and-death, as in the larger scheme of things, sports are meaningless — so there is no great importance in solving the problem or appearing to manage it competently.

So go get Roger Goodell, Senator Specter. Because, as you say, Goodell's exercise of discretion as Commissioner of the NFL to destroy the Spygate tapes really is "analogous [to] the CIA destruction of tapes" of its pressure-based interrogations.