Becky Bunny. Our neighbor's cat had a baby bunny in it's jaws this morning. My wife and I freed it and checked it out -- it looked okay, but did seem injured, we just weren't sure where. My wife's dad is a vet, so she took the bunny over. He was leaving town, so couldn't really do anything. It did have a wound in its side, but wasn't bleeding. He said it could use a stitch or two, but didn't have his kit. We dressed the wound.

The kids were very excited to have a "pet" bunny and named her -- it is a she -- Rebecca or "Becky Bunny." Now, however, it looks like the bunny has gone into shock. I'm concerned it's going to be a sad day tomorrow.

Update. Becky died last night. Grandpa said that he could tell it had a lot of internal injuries, but didn't want to say anything in front of the kids. Sad day -- kids handled it well.

Dick. Thanks to the Domenecher, here's a link to a good article on the films based on the stories of Philip K. Dick. I agree with Ben that the writer underestimates Blade Runner -- after all, it placed 14th on the Entertainment Weekly's Top 100 SciFi works of all time.

If anything, I think the writer over-estimates Total Recall, calling it a "better science fiction thriller than most." C'mon, as the writer acknowledges, Schwarzenegger was about the worst choice to star in this one. And then to pick Sharon Stone (this was pre-Basic Instinct) as the woman Schwarzenegger neglects for Rachel Ticotin. Every guy who ever saw that movie came out saying "why wouldn't Douglas Quaid (Schwarzenegger ) just stay with Lori (Stone)?"

I'm really looking forward to Minority Report. I'm hoping that Tom Cruise will come off more like Harrison Ford and less like Schwarzenegger.

One more thing -- overlook the gratuitous Ashcroft slam by the Salon essayist.

Star of David. Kofi Annan selected Cornelio Sommaruga, former president of the International Committee of the Red Cross ("ICRC"), to review the Battle at Jenin. Sr. Sommaruga is a balanced, compassionate observer, no? No.

Resisting the inclusion of Magen David Adom ("MDA"), the Red Cross's Israeli counterpart, in the ICRC (and the International Federation of Red Cross and Red Crescent Societies) Sommaruga stated: "If we're going to have the shield of David, why would we not have to accept the swastika?"

[Correction here, via Alex B. of Detroit] There is an apocrypal story that when the Nazis entered Denmark and imposed a rule requiring all Jews to wear armbands identifying them as Jews, the King donned one as well. In that spirit, the Blithering Idiot is donning the Star of David, for the next few months.

Stick it in your ear, Sommaruga.

Update Alex writes: "The story actually is about the king of Denmark supposedly riding in the park wearing a yellow star. The source of the story, unfortunately, is Leon Uris's Exodus, and there's no other basis for it. There are some reports that the King threatened to do so, but he never actually did." Thanks for the information!

Multicultural Day. At work we're having a multi-cultural day in a few weeks. We've been encouraged to bring in foods, music, clothes, drawings, and pictures which celebrate our heritage. Today we got a note beginning "We have made flags representing . . ." I'm not sure what to do. I'm at least a third generation American. My mother's parents, born in Iowa nearly 100 years ago, always told their kids "We're American." So it's not clear what our "cultural" heritage is on that side of the family. On my father's side, his mother was born in Johnstown, PA, but the family went back to what was then part of the Austro-Hungarian empire, a place that is now in Slovakia. My father's father was an immigrant from a village in what is now Slovakia. But at the time it was part of the aforementioned empire. For nearly all of my father's life, we referred to that area as Czechoslovakia, which doesn't exist.

Complicating things further. When my father was born, his parents lived in a mostly Polish section of Lansing Michigan, therefore, much of the early influence was Polish (and is why we have pirohi -- the family spelling -- on his birthday). However, when he was a young teenager, the family moved to Los Angeles -- San Gabriel, to be exact -- a predominantly Mexican neighborhood. Thereafter, he grew up immersed in Mexican culture -- something that carries through our family to this day. I was born in Southern California, on the edge of both the Pacific Ocean and Mexico. Growing up, my mother made her own corn and flour tortillas. My favorite meal is beef burritos.

Moreover, I grew up on Marine bases and in places like Kaoshiung, Taiwan; and Honolulu, Hawai'i. So what is my "culture?" I keep getting e-mail messages asking for cultural food donations and I'm tempted to go with those beef burritos. But how do I explain it?

Thugs, not refugees. From the New York Times, April 4, 2002: "The church, fragrant with centuries of incense, is now full of Palestinian gunmen seeking refuge from the Israeli soldiers who have seized Manger Square."

After three weeks, the truth is coming out, these guys aren't seeking refuge -- they're thugs holding hostages:

Three Armenian monks, who had been held hostage by the Palestinian gunmen inside the Bethlehem's Church of the Nativity, managed to flee the church area via a side gate yesterday morning. They immediately thanked the soldiers for rescuing them.

They told army officers the gunmen had stolen gold and other property, including crucifixes and prayer books, and had caused damage.

Airbags. I dropped my car off to be worked on this morning. While the guy from the shop was taking me to the Metro we passed a car that had jumped the curb and had the front two wheels in someone's front yard. The police were there, and the owner was out, looking fine. I saw no damage to the car, but observed both airbags had popped. I mentioned this to the driver and he said the insurance company will probably "total" the car and sell it to a shop to fix. He said that repairing the airbags alone would run about $4,000. Conversely, he said they had a car in the garage that was totaled when it went over a hill on a country road doing about 45 and found a cow in the middle of the road. He said because of the way the car struck the cow, neither airbag went off, although the driver, wearing a seatbelt, was fine.

Getting Old. I'm getting old. Once upon a time the ABA with it's red, white, and blue basketballs was so revolutionary. So "new" and different than the staid NBA. This morning, I read that Wayne Hightower, one of the first stars to jump to the ABA died of a heart attack at 62.

Anzac Day. Martin Roth has a note about it being Anzac Day today. I have several friends here in the States who are from Australia and New Zealand and can attest to the prominence this day has in their lives. For this Yank, my first question was why "Anzac"? What is the meaning of this word? I have been advised that ANZAC is the acronym for Australian and New Zealand Army Corps -- the Expeditionary Force that fought to invade the "soft under belly."

Winston Churchill, I am told, was the scapegoat for the disaster at Gallipoli; but a friend of mine was telling me about a month ago that he thought it was unfair that so much blame was heaped on him. According to this gentleman, Lord Kitchner, should be held responsible, in part, for his refusal to give the Anzacs the supplies, support, and supplemental troops they needed. (As an aside, if I were from Australia, Kitchner would be treated like Darth Vader -- see, for example, Breaker Morant.) Moreover, my friend was saying that the Anzacs did break through and gained a good foothold on the shores of Turkey, however, they were shelled by their own artillary, and were forced to withdraw.

Was Paul an anti-Semite? Since this came up a little while ago, I thought I'd pass on today's commentary from IVP Hard Sayings of the Bible.

Throughout the history of Jewish-Christian relations, 1 Thessalonians 2:14-15 ["For you, brothers, became imitators of God's churches in Judea, which are in Christ Jesus: You suffered from your own countrymen the same things those churches suffered from the Jews, who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to all men"] and several other passages in the New Testament, like John 8:44, have been used all too frequently as a justification for inappropriate attitudes and actions toward Jewish people. Those actions and attitudes are called anti-Semitic. A dictionary definition of anti-Semitism includes such terms as "prejudice against Jews; dislike or fear of Jews; discrimination against or persecution of Jews." Such anti-Semitism on the part of Christians has led to the charge that the New Testament, or at least certain writers of New Testament Gospels or Epistles, is anti-Semitic. Can the use of 1 Thessalonians 2:14-15 (and others) for anti-Semitic attitudes and actions, or the charge that these texts are in themselves anti-Semitic, be justified?

First, it should be noted that the statements in question come from persons who were themselves Semites. They were not uttered by Gentiles hostile to Jews or to Jewish customs or beliefs. Their Jewishness and their commitment to the sacred writings which give to Judaism its uniqueness and identity are affirmed. Thus Jesus points to the Jewish Scriptures as bearing witness to him (Jn 5:39); and throughout John's Gospel, Jesus' identity as Messiah, as the royal Son of God, is prominent. In the same vein, Paul repeatedly underlines his Jewishness, his belonging to the people who trace their ancestry to Abraham (Rom 11:1; Gal 1:13-14; Phil 3:4-6).

Not only do we have an affirmation of Jewish identity, but that identity is expressed in powerfully positive ways. Throughout the Gospel record, Jesus' love and compassion for his own people is amply demonstrated. A particularly tender expression of it is found in Jesus' lament over Jerusalem: "How often I have longed to gather your children together, as a hen gathers her chicks under her wings" (Lk 13:34). Paul parallels this deep yearning for the wholeness and salvation of his own people when he expresses his deep sorrow over Israel's rejection of Christ and his willing- ness even to be cursed for their sake (Rom 9:2-3). In addition, Paul sees the rejection of the Messiah by his own people as but a temporary reality. He knows that God has not rejected his own people (Rom 11:1) and envisions a time when they will be grafted back into God's olive tree (Rom 11:17-24).

Paul's strong words in this text are elicited by a situation in Thessalonica in which Christians (probably Gentile Christians) are suffering at the hands of their own countrymen (1 Thess 2:14). The new faith, based on the gospel of Jesus Christ, is being opposed in Thessalonica, just as it was being opposed in the Judean churches by their countrymen, namely, their fellow Jews (1 Thess 2:14). To this point in the text, Paul has not singled out any national group. The gospel is opposed by both Greeks and Jews, and those committed to it are liable to persecution. It is the following verse (1 Thess 2:15) which singles out "the Jews" for special denunciation: "They displease God and are hostile to all men."

This statement has the same anti-Semitic flavor as the rather slanderous remarks made against Jews in the ancient world. Tacitus says that they nurtured a hatred against all non-Jews that one would normally reserve only for one's enemies; and the Egyptian Apion, a contemporary of Paul, is quoted by the Jewish historian Josephus as saying that the Jews swear by their Creator to show no good will toward the Gentiles.

Though in external form Paul's statement is similar to these, the specific context of Paul's words should caution us against viewing them as an indiscriminate anti-Jewish polemic and using them as grounds for collective prejudice and discrimination. For just as the Gospel of John uses the term "the Jews" to designate the Pharisaic-Sadducean leadership that opposed Jesus, so Paul has in mind those Jews who opposed his mission (1 Thess 2:16). Thus we see that Paul's denunciation of "the Jews" takes place with a specific historical context, and it should in no way be generalized. Only when such statements are used indiscriminately in the service of generalized prejudice--as they often have been in the past--can they be called anti-Semitic.
.........
Webster's New World Dictionary (New York: The World Publishing Co., 1967).
Cited by F. F. Bruce, 1 & 2 Thessalonians, Word Biblical Commentary 45 (Waco, Tex.: Word, 1987), p. 47.

Fair-weather Federalist Update I received a nice note from Eugene Volokh, who writes, in relevant part,

I wonder whether the Barron v. Baltimore and Air Force points quite work. First, surely it's OK to update one's interpretation of the Constitution when the Constitution itself is explicitly updated (by the 14th Amendment). Second, updating constitutional analysis in light of technological changes (whether the advent of air travel, rather than just travel by land or sea, or the advent of television, which is neither literally speech nor press) seems quite different than updating it in light of just changed attitudes, or even economic changes.

I agree completely. I sort of alluded to the 14th Amendment update at the end of my note (referencing the incorporation doctrine, which applies the Constitution to the states). Moreover, I think it would really be silly to argue that there is no Constitutional justification for the Air Force, just because it was something not explicitly placed in the Constitution.

I do strongly agree with the Professor that we need to take the Constitution seriously. If it doesn't give Congress and/or the President the power to do something, they shouldn't be doing it. Similarly, the courts shouldn't read a right into the Constitution -- abortion, for example -- where it's not written.

Corp. Welfare. Senators Dianne Feinstein of California and Charles Schumer of New York attempted to strip a bill of a requirement that all gasoline have a certain percentage of ethanol. This provision is part of the welfare to large corporations that people like Sen. Tom Daschle (D-ADM) normally oppose, at least verbally. Unfortunately, their amendment was defeated, so Archer Daniels Midland will continue to make its profits.

I must say that I am disappointed with Thomas Daschle.

Line Drawing. Returning to yesterday's takings case. Stevens, in footnote 34, writes:

The Chief Justice offers another alternative, suggesting that delays of six years or more should be treated as per se takings. However his dissent offers no explanation for why 6 years should be the cut-off point rather than 10 days, 10 months, or 10 years. It is worth emphasizing that we do not reject a categorical rule in this case because a 32-month moratorium is just not that harsh. Instead, we reject a categorical rule because we conclude that the Penn Central framework adequately directs the inquiry to the proper considerations–only one of which is the length of the delay.

[BTW, since it's a fairly short note, I put the whole thing in; click here to see the opinion's text.] In fact, the CJ cites several state statutes which may be looked to for reference. [note: edited to remove all the 'referencing.'] Nevertheless, what's important here is that Stevens doesn't seem to think that a governmental taking for a period of six or even ten years is a big deal. Second, something Stevens quietly dances around is the arbitrariness of developing constitutional rules or lines as a means of determining when something is constitutional or not.

In his dissent, Rehnquist makes the point that if the government were to tell you it was leasing your land for a period of six years, during which you could visit it, but you couldn't build, plant, harvest and so on, and oh, by the way, we're not going to pay you a penny of rent. . . . we'll you'd be pretty steamed. This is exactly what happened here, except that it was for a series of years, back-to-back, so that the land owners never even knew for sure if and when this "temporary lease" was going to end.

From what I gather from reading the opinions (albeit, I admit, not that closely), it appears that the property owners advocated the Court establish a period of a year, beyond which, the restriction placed on the land owner should be considered a 'taking' requiring compensation under the Fifth Amendment. This seems entirely reasonable to me. All the court has really done is to establish that a moratorium of six years of development is not long enough to be considered a taking. What happens when litigants appear who have been under a 16 year moratorium -- or 60. At some point the court will be forced to say this is too long.

The Court frequently draws lines in time and substance -- creates rules without anything more than a toehold in the constitution. Think of the Miranda warnings, for example. You can't find them in the constitution, yet they are constitutionally required. Or the trimester scheme established in Roe v. Wade. There's nothing about trimesters in the constitution, but it shows up in the original Roe decision. (Of course there is nothing about abortion in the constitution, but that doesn't mean anything, does it?) Or consider some establishment clause cases. In in Board of Education v. Allen (1968), the Court said the loaning of textbooks to religious schools was okay, but in Meek v. Pittenger (1975) the Court said that loaning maps to these same schools was an unconstitutional establishment of religion (prompting Sen. Moynihan to wonder what it would do with atlases). A creche at Christmas is forbidden, unless there are a requisite number of reindeer and elves.

So I can't figure out why Stevens, O'Connor, Kennedy, Souter, Ginsburg and Breyer have a problem with a one year rule, or even a 2, 3, 5 or 6 year rule in this case.

Another thing, the unintended effect of this case will be to encourage reckless development, because if you buy land, fearing it might be subject to a moratorium, the best thing to do would be to immediately raze it and start pouring tar. In fact, Stevens encourages this mind-set in footnote 11: "The court stated that petitioners 'had plenty of time to build before the restrictions went into effect–and almost everyone in the Tahoe Basin knew in the late 1970s that a crackdown on development was in the works.'”

I remember reading about this a few years ago in rural Hawai'i. Some land owners -- native Hawai'ians held on to their land without developing it, because they were waiting for a responsible plan to develop it. Some other land owners, who knew that it was better to develop first, put up a series of ugly cheap buildings for no other reason than to have the land developed. The state government stepped in and capped development of undeveloped land which left the first group in the cold. The second group, was free to develop.

More Mark Byron proposes that Congress step in and adopt a plan for having the local jurisdictions compensate property owners who are subjected to long term moratoria, as what happened here. This sounds reasonable. My concern is that I really am a federalist. I believe in local control of these things and I'd hate to see Congress develop a national rule. If I had an editor, I might be asked why I would want the Supreme Court to impose a national rule, but not the Legislature. Excellent question. I wouldn't want the Court to impose such a rule. What I would want it to do would be to recognize that the Fifth Amendment to the Constitution imposes such a rule, in the form of the takings clause. All that would do would be to set a minimal floor -- a minimal level of protection, along the lines of the Miranda warnings, and leave it up to the States to develop rules consistent with this minimal level of protection.

I should clarify. I don't think the Supreme Court failed to expand the rights of property holders yesterday. I think those rights were established in the Constitution. I believe what the Court did was to actually cut out the rights of individuals and expand the power of local governments.

Still More Please read Fritz Schranck's commentary on this decision. He is an excellent writer and succinctly digests the majority opinion and provides commentary.

More on the Judicial Nominees. The Judiciary Committee is holding hearings on six nominees tomorrow, but not Miguel Estrada, Michael McConnell, or John G. Roberts Jr., each of whom has been waiting a year for a hearing.

Peter Berkowitz presents the case for the confirmation of John Roberts over at NRO (at the very least, he argues, the Committee should hold hearings and if determined to reject him should explain why, as part of its "advise" role). By the way, it should be noted that Roberts was the attorney for the prevailing side in the takings case decided yesterday. This supposed right-wing ideologue represented the government opposing the property owners. Oh, and he's arguing another case today before the Supremes.

Where were they? So where were all these protestors we had this weekend when Janet Reno sent the tanks in to buldoze the Waco camp of the Branch Davidians? Where were the protesters in Europe at that time? I'll wager there were more dead at Waco than at Jenin. Where was the UN at Waco?

Estrada and McConnell. There are a couple of good notes on the Corner about the delays on holding the hearings for Judicial nominee Miguel Estrada. Goldberg makes a good distinction:

When Republicans accuse the Democrats of holding up Estrada’s hearings because he’s Hispanic, it’s not a conventional accusation of racism. Rather, the charge is usually that Democrats are afraid of a conservative Hispanic because their party is so hung up on identity politics they’d have a hard time opposing him at a public hearing. The fear is that if Estrada is confirmed this time around he will be an unstoppable candidate for the Supreme Court down the road because Democrats cannot be seen discriminating against a Latino. Meanwhile, when Democrats accuse Republicans of racism it’s always of the old Jim Crow variety. Republicans, according to various Democratic radio ads in recent years, are in favor of disenfranchisement of blacks, Church bombings and lynching.

I've mentioned Estrada a few times here, in part because it's my Circuit. Nevertheless, I don't want to overlook another superior nominee also being frozen out: Michael W. McConnell.

Naturally, he's opposed by all the loon groups: NOW, the Alliance for Justice, and Rev. Barry Lynn. But his qualities outshine these cellar-dwelling groups. Consider the open letter from the Amar brothers, self-described Democrats who voted for Gore, to Pat Leahy

We know McConnell well, and admire him. He is soft-spoken, modest, and generous towards others, both personally and intellectually. These qualities are all the more striking because McConnell is a truly gifted legal scholar. (Brilliance and humility do not often coincide, especially in the legal academy.) McConnell is a man of moderation, balance, and judgment. In short, he has an ideal "judicial temperament."

Give these guys a hearing Mr. Leahy.

More Eugene Volokh names McConnell as one of the contenders for a seat on the high court in this 2001 article.

Changes. I'm always slow to these things, but I finally got around to changing my e-mail address, thanks to the Judd Brothers for pointing out their free service. (Blithering idiots like free) I also added links to Martin Roth and the Volokh Brothers (hmm, wish I'd had a brother).

Takings Case. The Supremes today, 6-3, Stevens for the majority, went with the government in a takings case.

After my first read through the Stevens opinion and the Rehnquist dissent, I find the latter more persuasive. I wish Stevens had assigned this to Kennedy or O'Connor, who joined him. He seems to be throwing them a few bones in the text and some footnotes. FN23 for O'Connor, FN24 for Kennedy. Anyway, I'll come back at lunch.

Update. On my second read through the Court's decision, I understand (I think) what they're trying to say, but I still don't find it as persuasive as Rehnquist's dissent. I still wish O'Connor had written the opinion.

I did note that Stevens refers to the See Restatement of Property §§7—9 (1936) at one point. This predates Reich, The New Property, 73 Yale L.J. 733 (1964), which the Court was so fond of during Brennan's heyday by nearly 30 years. (Don't go looking it up, I only mention it to note that sometimes when the concept of property is vague, the Court will be expansive; when it is concrete, the Court tends to withdraw and let the government go.). There was no reference by Stevens to his hometown scholar, Richard Epstein. Maybe its a University of Chicago - Northwestern rivalry.

Fair-weather Federalist. The Professor (of Instapundit fame, not the genius on Gilligan's Island, who could make radios out of coconut shells, but couldn't make a raft to get off the island) has an article criticizing Pres. Bush as a "fair-weather federalist" for "supporting legislation banning cloning."

To paraphrase Richard Nixon, we're all fair-weather federalists these days, aren't we? I mean Professor Reynolds has written frequently about the war in Afghanistan and never once noted that the USAF is unconstitutional. That's right, Article 1, Section 8, Clause 14 of the U.S. Constitution provides "The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces;" Got that? Land and Naval -- nothing about Air Forces. Silly argument -- yes. But this is the problem with such a narrow view of "enumerated powers."

Neither has Reynolds objected to the Supreme Court's application of the Bill of Rights to the states. After all, in Barron v. Baltimore, 32 U.S. 243 (1833), the unanimous Supreme Court rejected such an application noting:

The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
* * *
In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

Indeed, it was just last week that Reynolds noted he disagreed with Justice Byron White on the Bowers v. Hardwick case (upholding a state law making sodomy a felony), yet, there is no way to come to a different outcome unless you first jettison the sacred principle of federalism.

But I don't write just to criticize Prof. Reynolds -- indeed, I mostly agree with him. Where I disagree is whether Congress has the Constitutional authority to regulate and even criminalize research with respect to human cloning.

First, I think the commerce power -- the authority to regulate commerce between states and with foreign nations -- is broad enough to allow Congress to take action. I agree with the Court and Reynolds that Congress lacks the power to intervene in individual public schools -- what was at issue in U.S. v. Lopez. Nevertheless, what is at issue with respect to cloning research is clearly big time commerce. Does anyone seriously doubt that more than a few dollars will be spent on cloning, in more than one state, with the hopes of reaping billions (if not trillions) of dollars in profits from the fruits of this research. How can this not be considered interstate commerce?

After all, the Supreme Court has held that Congress (actually, the Department of Agriculture) can regulate the wheat grown by a person, not for sale, but for their own consumption. If this personal wheat production is interstate commerce, how can cloning research not be considered commerce? [I note, on the side, that a pretty good piece of the Lopez case was spent discussing and distinguishing and, in fact, reaffirming this case, Wickard v. Filburn.]

Why Lopez is right has to do more with the fact that in that case, Congress was seeking to apply a purely criminal law statute to a state-run function, the education of children in government schools. At issue in cloning research is primarily a matter of commercial development -- the development of a patentable product -- which is subject to regulation pursuant to the interstate commerce authority. Moreover, to underscore it's emphasis, some members of Congress, and (apparently) the Bush administration has indicated that violations of this restriciton will be a federal crime.

Last, I'd like to throw out a couple more speculative notions. First, consider whether Congress, pursuant to Article 1, Section 8, Clause 10, ("To define and punish . . . Offences against the Law of Nations . . ."") has the authority to act (explanation below). Second, consider whether Article 6, Clause 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . .") [Compare Missouri v. Holland, 252 U.S. 416 (1920) and this criticism of the interpretation of Holland and the Supremacy Clause.] The reason I bring these up is because of the Nuremberg Code. I don't know if this is a treaty, which would cause Art.6, Cl.2, the Supremacy Clause, to kick in, or is just a statement of the "Laws of Nations," which gives Congress Art.I, §8, Cl.10, authority. In either event, the Nuremberg Code, sets forth principles that must be violated in order to proceed with cloning research. But then, that's the subject for another day, as this has gone on far too long and it's getting too late at night.


Update. Sorry, I can't help going on about this. I just want to add that I am very much in accord with most of what Professor Reynolds has written. I am so delighted to be focused on enumerated powers and what they really mean. To do so is a tribute to our constitution, to law and to civilization. I love to look at how our predecessors struggled with these concepts as a way of honoring and protecting us from the abuses of tyranny. Consider, for example, James Madison, writing informally over forty years after the adoption of the Constitution: "the Instrument is read by some as if it were a Constitution for a single Govt. with powers co-extensive with the general welfare, and by others interpreted as if it were an ordinary statute, and with the strictness almost of a penal one." Actually read all of what he wrote and then go on from there.

Also, I with what I wrote about Barron v. Baltimore, that gets into the whole incorporation doctrine controversy, let me say for the record that I mostly agree with the Supreme's approach over the past 70 years or so.

Separation. The UCC minister Rev. Barry Lynn, who's religious doctrine requires forcing all public officials to practice a muzzled extremely private faith, is quoted in the NY Times as critizing President Bush: "This man now seems to have an enormous difficulty separating his personal religious commitment from his public policy positions."

Actually, it's Rev. Barry that has difficulty separating the demons of his fantasy from reality.

9th Circuit. Cute dialogue between the Amar brothers on why the 9th Circuit is reversed so frequently ("In the 1996 Term, for example, the Ninth Circuit was reversed in at least 24 cases -- a staggering number -- and at least 16 of them were 9-0 reversals."). Although some aspersions are cast -- the Sup.Ct. is GOP, 7-2, whereas the 9th is 17-7 Dem -- if you look carefully at the exchange ("How do you explain why the Ninth Circuit often fails to pick up the votes of either of the Court's Democrat appointees, Justices Breyer and Ginsburg - or Souter and Stevens, who, though appointed by Republicans, often vote with Breyer and Ginsburg?"), you will see a lot of good give and take.

I like this one: "On the Ninth Circuit side, you've got some pretty colorful judicial characters like Alex Kozinski and Steve Reinhardt (who alone was reversed by the Supreme Court unanimously an unbelievable five times in a single Term)." As I think I've previously written, I really like Kozinski and even Reinhardt, although the latter is everything the Dem's on the Judiciary committee claim to hate, except he votes their way. (And is always reversed.)

Exams. Eugene writes about the difficulty of giving exams -- I can attest that it can be very difficult. You may have noticed that my Sunday night posts came in after midnight -- that's because I was up until then finishing up the preparation of an Algebra exam. I've found that it takes about 20 minutes to prepare a question that it will take the student about 5 minutes or less to solve. Unlike Eugene, I'm planning on re-using some of my questions.

Supremes. The Court announced this morning that it will take up, once again, abortion protestors. Once again, this will show that the majority of the Court has more sympathy for those who produce child pornography than those involved in political protests. They will also take another crack at "fairness" in death penalty cases. As ususal, the "liberals" accord those charged with crimes more procedural fairness than they accord the unborn. Of course, it's easy once you classify someone a non-person. Conversely, the "conservatives" see not a person, but a convict and wonder why this convict is tying up the time of the judges.

Days when death is on the agenda at the Court are never pleasant. Of course, the protest case shouldn't be seen as an abortion case, it's just that for "liberals" anything touching on abortion is sacrosanct and trumps any first amendment concerns.

which "monty python and the holy grail" character are you?

this quiz was made by colleen

Great Draft. Why the Raiders had a great draft.

Cover Watch. Time Magazine with an easy win this week. It's cover is "Yoda Strikes Back" while Newsweek is "Companies of the Future." In short, factual reporting on a fantasy trumps speculative reporting on the future. Newsweek's cover reminds me of a song by the group Daniel Amos: "It's the 80's, so where's our rocketpacks?"

Update. Newsweek also has an article on AOTC (Attack of the Clones -- or Star Wars 2) which brilliantly exposes the flaws in SW:PM (Star Wars: The Phantom Menace).