'Greedy monsters' ruled church

SPECIAL TO THE WASHINGTON TIMES
BETHLEHEM, West Bank — The Palestinian gunmen holed up in the Church of the Nativity and later deported by Israel seized church stockpiles of food and "ate like greedy monsters" until the food ran out, while more than 150 civilians went hungry.
They also guzzled beer, wine and Johnnie Walker scotch that they found in priests' quarters, undeterred by the Islamic ban on drinking alcohol.

Prayers needed: for columnist Mona Charen, her son Jonathan, in a coma, her husband Bob and their 8- and 6-year old children.

The Man from Hope. On May 22, 2001, George Bush nominated Lavenski R. Smith a native of Hope, Arkansas to a seat on the 8th Circuit Court of Appeals. As of this writing, there has been no movement by Patrick "Stonewall" Leahy on this nomination. Judge Smith served as an Associate Justice on the Arkansas Supreme Court from 1999 until 2001. More importantly, however, from my perspective is the fact that from 1987 to 1991 he served with Ozark Legal Services representing thousands of low-income persons who were in need of access to justice. This isn't a job you do because you want to drive a Lexus or BMW or wear thousand-buck tailored suits. In 1989, the average salary for a staff attorney in Arkansas was about $23,800 [Source: Legal Services Corporation 1989 Workforce Data By State, page 51 from the 1989-90 Fact Book].

So why no hearing? There have been rumblings and undercurrents that indicate the Democrats are particularly loathe to confirm "minorities" who are anything but die-hard leftists, because they don't want to "create another Clarence Thomas."

Hold hearings, Senator Leahy.

Additions. Part of the reason I mention the legal aid work is because of Sen. Leahy's past interest in the subject. Some of you may recall during the Bork Hearings Patrick Leahy spent a round of questioning on Judge Bork's involvement in pro bono activities. Trying to paint Bork as a greedy pig, Leahy argued that Bork had earned $200,000 a year from 1979 to 1981. Bork testified: "Those were the only years I made money. . . There was a reason I made money, but I don't want to go into it here." Those were the years that his wife Claire was consumed by cancer -- the money was to pay the bills.

Also, I should clarify that Lavenski Smith is African-American.

Still More: Jay Nordlinger on Pat Leahy.

And still more on Leahy's committee, from Ann Coulter:

Estrada clerked for Justice Kennedy and has argued 15 cases before the Supreme Court. John Roberts clerked for Justice Rehnquist and has argued more than 30 cases before the Supreme Court. Jeff Sutton clerked for Justice Scalia and has had 15 arguments before the Supreme Court. Michael McConnell clerked for Justice Brennan and has argued 11 cases before the Supreme Court. None of them have even been given hearings by Leahy.

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I love the internet. Last thing today at lunch: I really love the internet -- in the past few years I've been able to converse with Gary Wills on the baptism of St. Augustine, Andrew Wiles who solved Fermat's Last Theorem, and Ray Repp, the founder of contemporary Christian Music, among others. I've met a lot of neat people from New Zealand to Bosnia. Now, I've started this wild blog and have been getting some really nice notes from people from all over -- people with incredibly great ideas. (I've yet to receive a bad note). My one regret is that I'm terrible about managing my e-mail -- and therefore about responding. (sorry)

I do want to mention one note I received today that really thrilled me. For years I've been picking up a terrific little journal called the Mars Hill Review in bookstores in bohemian-type places and lately in Borders or Barnes and Noble. [Checking on-line, I see my first issue, which I recall quite clearly, was from 1996. It has a wonderful tribute to Mark Heard.]

So when I finally signed on to my e-mail today, what was there but this really nice note from Kim Hutchins, the founder and publisher of the Mars Hill Review. This blew me away.

If you haven't seen this journal before, you really don't know what you've been missing. I can not recommend this too strongly. Please look at the web-site and then go hunt it down on the newsstand or bookstore -- or order it. They also have an e-mail list you can access from that last page link I provided.

Southern Christians. As I've noted before, the Christian church is booming in the Southern hemisphere -- I see Africa as taking the lead (there are more Anglicans in Nigeria than in England, the US, and Canada, combined). This article takes note of that development. Moreover, I believe that the "West's" commitment to materialism and especially secular materialism will lead to a decline of civilization in the "west," the rise of Christianity in these third world countries will cause them to pass the West in our children's lifetime. Already the African Anglicans are sending missionaries to the US.

Orthodoxy. I have met several people recently who have moved from more-or-less Protestant backgrounds -- all pretty evangelical -- to the Orthodox Church. One of whom was a life-long Pentecostal. I just received a note from an old acquantance that he and his wife both converted to the Orthodox faith. This strikes me as unusual, but according to this article, may not be so. One more thing that should be noted is the rigor of becoming an Orthodox communicant -- it's not just a profession of faith.

Statistical Proof of the Resurrection. Richard Swinburne, a professor of philosophy at Oxford University, determined that there is a 97 percent probability that Jesus rose from the dead. For those of you interested, he used Bayes Theorem, which, if I remember correctly, has been pretty controversial but has come back into use lately. (I remember that it allows, for example, the short-cutting of a test, for example in pharmaceuticals, based on probable outcome, but all that's back in the cobwebs of my brain.)

More by Swineburne. More.

Follow up Taking. Richard Epstein of the University of Chicago has an essay noting his concerns with the Supreme Court's recent takings case, the Tahoe case. He quite correctly observes that "The winners in this case were not some mythical community at large, but only those homeowners fortunate enough to have built their homes before the moratorium was put in place." He further notes:

But once early-bird landowners started to build in the region, the increased runoff of dirt and organic matter into the lake resulted in its eutrophication, compromising its clarity. All the dislocations were created by the incumbent owners; yet none of the options before the planning board required them to cut back on their continued property use.

Instead, the brunt of new restrictions all fell on nonresident property owners, who had caused no damage but who had only limited clout in the planning process. The politics of self-interest are all too apparent: The means of environmental control chosen did more than preserve the status quo on the lake. It conferred a huge windfall on current homeowners. Land densities and housing stock were both reduced. The two forces together drove up the price of built homes, which current owners can capture either by use or by sale. The unbuilt plots essentially are worth nothing.

In his essay, he further shows why the Court was wrong, both from the standpoint of the law and the standpoint of economics. This decision may be seen as a triumph of the "liberal" wing of the Court, but I think it was nothing of the sort.

I maintain, as I did at the time of the opinion, that this is a short-sighted decision that encourages reckless development.

Court Update 2. Four Cases -- Ashcroft v. ACLU the Court upholds, sort of, the provisions of the Children Online Protection Act ("COPA"). A key issue appears to have been "community." Justice Thomas, joined by Rehnquist and Scalia held: "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad," in violation of the First Amendment. (at 22, emphasis in original.)

O'Connor and Breyer were ambivalent on the community standard. Thomas writes the main opinion, but was not able to convince O'Conor and Breyer. Thomas notes that in prior cases, where pornographers used the mail and telephones, local community standards were upheld and not found to be overbroad. O'Connor agrees with the plurality that local standards aren't a problem, however she disagrees with Thomas' reliance on the mail and telephone cases.

Breyer writes that he "believes that Congress intended the statutory word 'community' to refer to the Nation's adult community taken as a whole, not to geographically separate local areas."

Joining in the judgment, but not the opinion, were Kennedy and Ginsburg. Kennedy writes:

Only by identifying the universe of speech burdened by COPA is it possible to discern whether national variation in community standards renders the speech restriction overbroad. In short, the ground on which the Court of Appeals relied cannot be separated from those that it overlooked.

Justice Stevens, in dissent gets into a discussion of shields and swords noting that a Puritan village turns its community standards into a sword, purging the WWW into a smut-free community. In doing so, he would hand the mechants of pornography an invincible sword to strike down any restriction.

The second case was also porn-related. City of LA v. Alameda Books. The City of Los Angeles relied on a 1977 study which determined that concentrations of adult clubs/theaters/bookstores, etc. are associated with higher crime rates in surrounding communities and passed a law restricting such businesses from being within 1000 feet of each other or 500 feet of schools, parks, or churches. In a 4-1-4 decision, the Court upheld the provisions. O'Connor wrote the plurality decision, joined by Rehnquist, Scalia and Thomas.

Kennedy, really turns on a more procedural device. Since the challenge to the law was based on a motion for summary judgement, he said there wasn't enough to throw it out there, that you first have to give the law a trial before shooting it.

No, said the dissenters (Souter, Stevens, Ginsburg, Breyer). Shoot first, no trial is necessary, the law is invalid on its face.

Third case, Lapides v. Board of Regents of Univ. System of Ga. Nice easy unanimous opinion by Breyer. Here you had a state employee, a University Professor, who filed against the state in state court. The State moved the case to federal court and sought to dismiss. The Supremes held that the State's act of removing a lawsuit from state court to federal court waives this immunity.

Fourth case, Verizon Communications Inc. v. FCC is one of those MEGO cases. I'm too ADD to focus on this one. Plus it was written by Souter, the dullest Justice who ever lived. His opinion is 69 pages long . I think only Breyer was able to read it without slipping into a stupor -- which is why he had to toss in a 27 page dissent. Scalia joined the dissent, but I'll bet it was just because Breyer told him the Souter opinion was based on legislative history.

[note: I did my reading and posting my notes here contemporaneously, therefore this particular entry changed from time-to-time, during the hour or so after posting.] BTW, the Lapides case still isn't on the Cornell website. Last Update: I just received this note from Cornell: "We apologize for the delay in transmission of the Lapides summary. We are testing a new system for communication of opinions from the Court, and it was inadvertently omitted." (5/15/02)


Update. I realized last night I should've at least given the bottom line in the Verizon case -- Verizon lost, the FCC won. Here is a news report if you want more details.

Court Update 1. Since I'm not seeing any opinions yet and nothing other than the very brief initial news report, I'm assuming that the Justices may be reading portions of their opinions and/or are releasing more than one opinion today. Here is the website for the current opinions at Cornell, which is very reliable about getting these out quickly. More on these later.

Court Watch. After a brief working break (i.e. no decisions issued for a period of two weeks, I think), the Supreme Court announced a decision in Ashcroft, Atty. Gen. v. American Civil Liberties Union, et al. This was another challege to the Children Online Protection Act ("COPA") enacted in October of 1998. I'm still waiting for a copy of the opinion. News reports have it that the Supremes, in fragmented opinions, directed the 3rd Circuit to conduct further review. It appears that only Stevens would've struck down the challeged sections in their entirety. More later.

CoverWatch. Newsweek: 39 Days in Bethlehem. Ho-Hum. Time: Spiderman Rules -- so does this cover.

Happy Day, Moms. We had a nice evening on Saturday with my mom and 2/3 of my sisters and my Aunt, all the way from California. My other sister sent a home-DVD from Colorado (what a way the world is changing). On Sunday we're going with some friends out for a wonderful family meal, as is our tradition, to Graves Mountain Lodge. Hope your Mother's day is blessed!

The Saga Continues, Part II. One of the other subjects I like to beat to death is the long running battle for the judiciary. Last year, May 9, 2001, George W. Bush nominated 11 persons to the judiciary. This was his first batch of nominees. As of the one year mark, only three have had hearings.

As an olive branch -- a peace offering to the Democrats, President Bush offered Roger L. Gregory and Barrington D. Parker, both Democrats. Indeed Gregory had been nominated by President Clinton (and appointed to the 4th Cir. as a recess appointee), but not confirmed before the end of Clinton's term. Therefore, Bush could've allowed the term to expire. Naturally, both of these judges have been confirmed. (As has Edith Brown Clement)

So, to "deflect criticism" Charles "Chucky" Schumer held a hearing. Not a hearing for the nominees, but a hearing of four Clinton nominees who failed to receive a hearing and had their nominations lapse. [Byron York looks at the background of these nominations.]

Still waiting are: Priscilla Richman Owen, Jeffrey Sutton, Terrence W. Boyle, John G. Roberts, Dennis Wayne Shedd, Miguel Angel Estrada, Deborah L. Cook, and Michael William McConnell.

Public Figure. Richard Jewel is asking the Supremes to overturn a Georgia decision declaring him to be a public figure and therefore able to be defamed with near impunity. Of course, that's my exaggeration -- I've never been particularly fond of the Sullivan case. It seems like this would be a good case for the Supremes to use to clarify what is meant by a public figure.

BTW, my daughter and I had left Atlanta's Centennial Olympic Park about 20 minutes before the bomb went off -- we were waiting at a subway station at the time.

The Saga Continues. With the next (and next to the last) installment of the Star Wars Saga less than a week away, it might be a good time to revisit two articles by SciFi writer David Brin, both on Salon. The first, What's wrong (and right) with "The Phantom Menace" is still one of the most even-handed looks as the worst Star Wars movie. The second is "Star Wars" despots vs. "Star Trek" populists (subtitled "Why is George Lucas peddling an elitist, anti-democratic agenda under the guise of escapist fun?").

Since I inadvertently mentioned Star Trek, you should also look at Ed Driscoll's comments on the devolution of Star Trek.

Movies and Bioethics questions. In a great opening essay of a series of essays on bioethics, Charles Murtaugh notes:

I'm surprised that the anti-biotech neocons don't use [Bladerunner] more in their arguments; I guess they're just too snobby to lean on pop culture. Instead, they endlessly invoke Aldous Huxley, in spite of the fact that Brave New World's dystopia relies on a totalitarian government, the antithesis of the libertarian vision of the future.

This is a good point, although I don't think of myself as a neocon (maybe a neolib, but that's another post).

Nevertheless, both BNW and the Bladerunner movie present warnings about science and bioethics which are worth thinking about.

Yet, without plunging into those right now, perhaps we should up the ante for this summer -- after all, it appears that the two big blockbusters both will touch on bioethical themes. Attack of the Clones, the Star Wars sequel/prequel is obvious. Yet, what about Spiderman? Here we have a man who becomes "enhanced" through gene therapy (or gene mutation). If we were capable of altering the human race by infusing it with spider genes, should we do it?

I'm just raising the questions now, since I haven't seen either movie.

One more thing, before lunch ends. Marvel comics -- indeed, most of scifi, it seems to me in the 1950's had this idea that radiation would create genetic mutations that would tremendously enhance a person or species. Therefore, we had the Fantastic Four, who received unique powers due to cosmic rays, Spiderman, bitten by a radioactive spider, the Hulk and the Gamma radiation -- and so on. I'll tell you, my experience with radiation is that it makes people extremely sick and weak -- never an enhancement or super powers. We can learn truths from stories and novels, be they Brave New World or Johnny Torch, but ya' can't confuse reality and fantasy.

Who Mourns for Quibdo? While the attention of the UN and the chattering classes was on Jenin, a real massacre took place in Quibdo. There leftist guerillas unleashed a mortar attack on a village killing over 100 civilians, with at least a third being children. To compound the sick irony, while these same people have been wringing their hands about the Church in Bethlehem, it was in a church in Quibdo where the villagers sought refuge; it was a church that was shelled by the left-wing Revolutionary Armed Forces of Colombia, or FARC.

Censorship. In Iowa, a 12 year girl submitted an entry into a design for the school yearbook, which won a contest and was selected to be used as the cover. However, after the entry was selected, the government employees at the school decided that the entry constituted an establishment of religion and modified the design without the consent of the artist. The offense? Three words: God Bless America. Naturally, the government attorney is going to fight to the death to defend the government sponsored censorship.

Update. Look, I know this is not censorship. It's a school publication put out by a public school -- a government funded school. However, if someone's going to claim that a piece of art with the words "God Bless America" is the establishment of religion, this is censorship. Moreover, you know that's what KAREN FINLEY (yipes -- sorry about that mistake!!) and all the peers in the NEA community would cry if it happened to their group.

Faith. Go read this essay now.

Faith and Works - From the Mailbox. Sometime ago, I and others had a number of posts on this subject. I received a lot of e-mail on it. I'm sorry I didn't respond sooner. Also, I'm afraid I lost some copies of some messages in trying to consolidate everything to respond to them -- I apologize for my incompetence.

A good way of beginning this review is with a short note from Pat C., who said that “Isn’t your point that Catholics and non-Catholics aren’t really different? Don’t they teach the same thing, just with a different stress on the syllables: toe-MAY-to or toe-MAT-to?”

Yes, that’s what I was trying to say when I wrote: “I[] sometimes think that Protestants seem to be from Saturn and Catholics from Jupiter, so that when they get together, while they are talking about the same thing, they just think it's different.”

Tony Adragna writes:

Here's my recollection of the dispute (been awhile since I was in seminary): it's the difference between "induction" and "deduction". We Catholics don't say that "works save", but it's not enough to profess faith - you must also live a Christ-like life. Living the Christ-like life entails "work": Christ didn't just tell us to have faith - he also instructed us to "do" things: care for one another, look after the sick, feed the poor, visit those in prison, etc. - all the things that Christ did in his ministry.

Protestants don't deny that living the Christ-like life is necessary. but assert that if you have true faith that faith will be evident in the fact that you live a Christ-like life.

Set aside the difference in doctrine, and you get to the same core understanding: you must have faith, and that faith must be evident in your life if it's true faith.

Well said – I concur.

And brand-spanking new blogger Marc V, who runs Spudlets, writes:

Part of the reason we have so many different Christian denominations are due to our interpretations of salvation and sanctification, as well as other issues like the inerrancy of the Bible and the role of the Holy Spirit.

I agree – also the nature of the Holy Spirit was behind the Great Schism, was it not – the Filioque? Orthodox and Rome.

We get caught up in faith vs. works, and you correctly stated that our works are like filthy rags to the Lord, and that works are the fruit of our salvation. We are initially sanctified (cleansed of sin) when we accept Jesus as Lord and Savior, admitting we are sinners, repenting and seeking the Lord's help in our lives (born again). Jesus died for the sins we commit before and after our salvation.

Our sanctification is ongoing when we humble ourselves before the cross, repenting and asking for His forgiveness. There can be no remission of sin without the shedding of blood, and Jesus' sacrifice was perfect, thus negating the need for our weak and useless animal sacrifices. If you think of works (our "sacrifices") as helping to wash the soul, then you miss the power of the cross and you run into the trap of relying on your own power for redemption.

Works should be our way of advertising to the world that we are children of God going about the Father's business. That is what I believe was Jesus' mindset as he ministered in Judea about 2000 years ago.

Aye, He stated: “In the same way, let your light shine before men, that they may see your good deeds and praise your Father in heaven.” Mt. 5:16

Last, with respect to my note on the papal bull Unam Sanctum JRC (sorry, only a first and middle initials – I won’t publish last names without consent -- which I assume if you have a blog), notes that this was issued long before the Protestant Reformation. Yes, but it comes after the split with the Orthodox churches. JRC also notes that “in the 1940’s the Pope excommunicated Fr. Leonard Feeney for teaching that one must be a member of the Roman Catholic

Romeo and Juliet meet the Christian Booksellers Assoc. Terry Mattingly has a good column about this subject. Actually, his comments apply to most trade or business associations, but with the CBA, you get the veneer of religion and the "Will of God" beating you down, as well.

Succession. If Charles were to abdicate, who would be the heir to the throne? Would his abdication remove his sons from the line of succession?

Where's Harry? I'd sure like to know when Harry Potter and the Order of the Phoenix will be out. June of 2003? Okay.

WWJD? Last week, this was the question posed by the Newsweek cover, with respect to the problems in the Roman Catholic Church. Regrettably, the text inside the cover didn't really get to the meat of the issue, as noted by Tim Swarens.

Headlines
Key Dutch Rightist Is Shot Dead - Washington Post
Gay Dutch leader killed by gunman - Washington Times

Been out sick. Got a touch of something on Friday and the kids were sick as well. Back to regular posting in a day or so.

Confederate Flag. I indicated a day or two ago that I had a possible solution to the flag problem. Before I outline it, however, I must direct you to Eugene's note on the Confederacy. As you may recall, several of us had a disagreement about the cause of the Civil War and I indicated my displeasure of the defense of the Confederacy by so-called Libertarians.

Moving on, as you recall, the jist of the argument is that because the Confederate flag, represents the Confederacy, which was a collection of states that supported legalized slavery, all right-thinking people should boycott all states, cities, organizations, entities, individuals, and so on who display this flag. At worst, the flag critics see it as racist; while its defenders say it stands for the southern region of the United States and that there is no racist intent.

So what's my solution? Simple -- a group of flag detractors should take a page from the Christian church and just adopt this accursed symbol as it's own. Let this thing which was supposed to be a thing of defeat (for the follower's of Jesus, the cross) be the symbol of your victory. It seems to me that the organization that is in the best standing to adopt it as their own is the Southern Christian Leadership Conference. After all, this flag is identifiable with the South and, with it's St. Andrew's Cross, is identifiable with the Christian leaders who make up this group. Finally, it represents the victory over slavery. Take it away from the KKK and those racists who want to use it as a symbol for intolerance.

Interestingly, I mentioned this to a friend of mine, an attorney who is gay, and he said that the gay movement did the same thing with the word "queer." Think about it -- it's no longer such a vile word and the only ones who really use it are gays applying it with, well, queer pride.

Virtual Porn Lauren C. raises a very interesting question:

I've been in the information processing business in one capacity or another for 30 years last February, and I'm concerned that those who write and interpret laws are always a few steps behind the technology they're attempting to regulate.

In information theory, sight, hearing, and touch are just information streams. With current (not future) technology, I can produce sight and sound indistinguishable from reality. It would be expensive, prohibitively so, but possible nonetheless. Give me time and sufficient bandwidth, I could do the same thing with touch. Take a couple of neural pathway breakthroughs, but it's coming.

Based on that, how can the court's ruling that you must be able to identify a physical child being harmed be implemented?

In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court distinguished child pornography from other sexually explicit speech and press due to the state’s interest in protecting the children exploited by the production process. In that case, Justice White noted, among other factors, that "recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions." However, in that same paragraph, he based the rationale on "a definable class of material . . . [which] bears so heavily and pervasively on the welfare of children engaged in its production." Accordingly, under Ferber and the more recent case, Ashcroft v. Free Speech Coalition, a statute which restricts or bans pornography using actual children, would still pass muster, but if you can create a CAD or some other version of child pornography, it can not be banned as a category of material by statute.

Now it could still be found to be obscene, but that would have to proceed on a case-by-case prosecution.

This message does raise an interesting scenario. Could a state ban the reception of neural stimulation? I don't know if you ever saw Natalie Wood's last movie, but there was a scene in there were one of the technicians recorded an episode of sexual simulation and climax, then cut it and looped it and got caught in his loop of climax. Since the scenario I'm hearing you propose is more like pharmacological stimulants, could the state step in and ban it without running afoul of the First Amendment?

Child molesters. All child molesters raise your hands? Thank you.

Miscellaneous Items. Quick lunch break -- a busy day. I updated links last night. I included a left-leaning one, via Eugene V., Two Tears. I've been looking for a good left-leaning one, maybe this will be it. And I see that David S-, er, Louder Fenn has a new place.

Here's a link to downloading an .mp3 of the song Kiss Me in Japanese.

Finally, "Are you an American or a Journalist?" Read Media Minded then read this summary by James Fallows of a PBS episode on the Media, the Constitution, and the Military. I remember when the PBS episode was aired, I was floored -- I ordered the transcript and subsequently videotaped this one. Look at how Mike Wallace intimidates Peter Jennings. And then watch the Marine smackdown Wallace. ("Marines will die going to get ... a couple of journalists.") Very powerful.

Speech, Press and Slippery Slopes. I neglected to mention, below, that I'm also about halfway through Eugene V's article on Mechanisms of the Slippery Slope. This is an excellent article -- and you get it for free (of course, it consumed nearly a half ream of paper and a good bit of ink from my deskjet at home). Even the footnotes are wonderful (endnotes actually, since this is a web publication -- but worth flipping back and forth for).

In fact, this might be a paradigm shifting article for me -- like Godel's Theorem (actually, just the explanation of the theorem -- I never read his paper) did for my belief in provable rationalism.

I've always been partial to the slippery slope argument, yet also found something wrong with it. I think it bugged me that you'd have people making the argument that you can't ban child pornography because next they'll be burning Romeo and Juliet. In truth, I think there is a clear distinction to be made between banning obscenity and the protection of a free speech and press. As I've previously indicated, I think the Court is wrong to not adopt a per se rule that child pornography is obscenity. (Yes, I know, then the question will be what is child pornography.)

Last, Eugene, on his blog, notes the 4th Circuit decision with respect to the Confederate flag on the license plate. I appreciate his condemnation of the Confederacy movement -- too many libertarians I run across have a perverse affection for it -- yet he strikes the right balance in noting that those who want to fly the flag are not all (or even mostly) racists. I have my own solution to the flag situation, which I'll mention in a day or two -- this is already getting to meandering. What I do want to note is that I disagree with the general Supreme Court flag burning ruling.

On the one hand, since the case was brought under a broad flag desecration law, the free-speech challenge was appropriate. Yet, it still bugs me that I can be prosecuted for having an open-air wood fire in my back yard. But if I was burning the flag, I would be untouchable. My solution? Whenever we burn the pine in the back (you wouldn't want to burn this in a fireplace) we do it to as "speech" to celebrate the freedom granted to us by the First Amendment (indeed, it's an unalienable right). That's right, it's all speech, not conduct, right down to the toasting of marshmallows.

Of course, since I'm not a state actor, I can tell the kids to be quiet -- they've had enough marshmallows.

Commerce. Our friend is persisting with his claim that scientific research and development is unregulatable (is that a word? Okay, how about outside of the jurisdiction of the federal government.) He ignores the dollars being spent on this -- this is clearly a matter of interstate commerce. I write this as I eat my sandwich made out of federally inspected meat product, but I guess that's not commerce either.

In box - Driving. As I get ready to go back to the shop for my Civic, consider this from my box:

Most people assume WWJD is the acronym for "What would Jesus do?" But the initials really might stand for "What would Jesus drive?"

One theory is that Jesus would tool around in an old Plymouth because the Bible says, "God drove Adam and Eve out of the Garden of Eden in a Fury." But in Psalm 83, the Almighty clearly owns a Pontiac and a Geo. The passage urges the Lord to "pursue your enemies with your Tempest and terrify them with your Storm."

Possibly God favors Dodge pickup trucks because Moses' followers are warned not to go up a mountain "until the Ram's horn sounds a long blast." But then some scholars insist that Jesus drove a Honda but didn't like to talk about it. As proof, they cite a verse in St. John's gospel where Christ tells the crowd, "For I did not speak of my own Accord..."

Meanwhile, Moses rode a British motorcycle, as evidenced by a Bible passage declaring that "the roar of Moses' Triumph is heard in the hills." Joshua no doubt drove a Triumph with an aftermarket slip-on muffler
because: "Joshua's Triumph was heard throughout the land."

And, following the Master's lead, the Apostles car-pooled in, you got it, a Honda: "The Apostles were ..... in one Accord."

To which my friend added: "I'm sticking with my ragtop...never know when the rapture might be..."

My Spidey Senses are Tingling or it could be my three-year old son, who tho' he can't read a word of english and watches no tv, knows beyond a shadow of a doubt that Spiderman is Almost Here!

See also, Lileks, for example on JJJ:

J. Jonah Jameson was the editor of the Daily Bugle, the paper that employed free-lance photographer Peter Parker, aka Spiderman. As a child, this was my introduction to the world of newspapers: they were run by an autocratic man with white sideburns who always had a cigar exactly six inches long (with a half-inch ash) jammed in the corner of his mouth; this editor would Stop the Presses, Remake Page One, and reshape the paper to fit his whims and fits. And this man lied. JJJ hated Spiderman. Hated him. Took every opportunity to portray him as a menace to the city, despite all the evidence to the contrary. In a town with many papers, JJJ had decided to play to the anti-superhero demographic - but why?

Currently Reading: Lost Victories: The Military Genius of Stonewall Jackson by Bevin Alexander.

Dr. Woodlief, I presume? Anthony Woodlief is to be congratulated for having earned a Doctoral Degree at the University of Michigan. He writes, in part: "I'm a doctor, though I won't let anyone call me that, because you shouldn't put 'Dr.' in front of your name unless you know what to do when Joan S. keels over in front of you with cerebral thrombosis." While I agree -- your Doctorate has been fully earned -- congratulations.

On the other hand, something about this reminds me of a friend of mine, who when first elected to a minor office noted he could be addressed as "The Honorable ____" I responded that people who insist on Honorable as part of their title genererally aren't.

WASPS smarter? This has to be the most politically incorrect thing I've seen in a long time. Although, somehow it manages to miss my various heritages.

What is this? Look, I know about embargos on the press -- it's usually done with respect to medical and science news -- giving advance copy of scientific journal articles to journalists, so they can read and accurately report on it -- but what is this from the AP:

BEGIN EMBARGOED MATERIAL

Treasury, for example, oversees the Customs Service and has been setting up a system aimed at carefully but quickly examining goods being imported into the United States. It also is hiring new Customs agents, searching for financial assets controlled by terrorists and buttressing security provided by the Secret Service and Bureau of Alcohol, Tobacco and Firearms.

"We bear the responsibility of protecting the nation on three fronts: at our borders, in the world of finance and here at home," O'Neill said in his prepared remarks.

In February, O'Neill and Byrd had an emotional clash before the Senate Budget Committee over the powers of Congress to regulate executive agencies that touched even on the two men's deprived childhoods.

Hanging over Tuesday's session was Ridge's absence. Aware of Byrd's strong feelings about the subject, Powell sought to assure him of administration cooperation.

"The administration is committed to ensuring that you and the Congress receive the appropriate information on what we are doing to improve, enhance and ensure the protection of our homeland," Powell said in his written statement.

END EMBARGOED MATERIAL

Dismissed as paid Ben Domenech links to a list of crazy judges. Here's a different story -- a decent judge and a guy I worked for many years ago. When I started out in Legal Services, back when Jimmy Carter was President, Don McDonough was my boss and was the managing attorney of the Fairfax office.

A Beneficent Bench by Michael Leahy and Leef Smith Washington Post Staff Writers Saturday, June 10, 2000; A01

Typically on a Friday, Fairfax Judge Donald P. McDonough operates at assembly-line speed: 150 landlord-tenant disputes, one right after the other. But at 10 a.m. yesterday, McDonough's efficient system of justice paused. Something about the middle-aged deaf couple standing before him, and facing eviction for falling $250 behind in their rent, got to him.

Though no one yet knew it, this dispute would be different from any of the thousands McDonough had heard in more than a decade on the bench. When the landlord insisted on a judgment against the deaf couple, McDonough abruptly left the courtroom, returning a minute later with two crisp $100 bills and a $50 in his hands.

"Consider it paid," he said, leaning over the bench and handing the money--his own money--to the landlord's stunned attorney. As a
sign-language interpreter translated for defendants Deborah Morris and Louis Swann, Morris pressed her hands to her chest in unaffected rapture, according to several people who were present.

"Only in America," said Fairfax Commonwealth's Attorney Robert F. Horan Jr., adding that in his 33 years in office, "I've heard of judges suspending judgments. I've never heard of a judge chipping in."

Bailiff Erin Cox, who was in the courtroom when the scene took place, agreed. "Not something you see much," Cox said. "Not something you see ever."

After McDonough handed over the money, another strange thing happened: Four attorneys present for other cases spontaneously whipped out their checkbooks to give more, according to Cox. She said the lawyers told her they planned to give the $1,250 to the couple, but as of last night, Morris and Swann said they had not received it.

The made-for-TV courtroom drama began with Swann and Morris telling their story. They were short of money, again. Married in October, they learned only recently that their new status as a couple meant a sharp reduction in Morris's disability benefits. Without the aid, they couldn't pay their full $630 monthly rent.

Using an intepreter, Morris passionately argued the couple's case in sign language. They were virtually broke. They thought marrying would save them money. The caprices of the disability rules caught them by surprise. Things seemed hopeless.

The landlord's attorney, exasperated by what he called a string of late payments, asked the judge to order full restitution and eviction.
McDonough sighed and asked if settlement was possible. No, said Andrew Lawrence, the lawyer.

A former legal aid attorney, McDonough looked down at the bench for a long half-minute while no one and nothing moved in his courtroom. Finally, he wheeled back and looked at Lawrence. "What if I pay it?" McDonough asked.

Lawrence's mouth slid open, an observer said. The judge turned toward Cox, his longtime General District Court bailiff. "Let's go, Erin," he said, and without another word exited the courtroom through the door behind him. According to Cox, the judge went to his briefcase and pulled out the cash.

Back on the bench moments later, he quickly brought the case to an end, handing Lawrence the money and scrawling on the case folder, in illegible writing that would make a doctor proud, "Dismissed as paid."

"I'd been praying that someone would help us with the rent, but I wasn't prepared for this," Morris said a few hours later at the couple's
cluttered apartment just off Route 1 near Fort Belvoir.

Theirs was a sweet fairy tale of rekindled romance. They met at a Maryland school for the deaf in the 1960s, then became reacquainted five years ago at a school reunion. They share their two-bedroom apartment with a white cat named Snowy.

But real life is hard. Disability benefits for Morris went from $500 a month before her marriage to $91 a month and then were cut altogether, she said. Swann's wages as a day laborer don't come close to covering the mounting bills.

"They said they were going to evict us if we couldn't pay," said Morris, 48. "Then the judge took money from his own pocket. . . . I couldn't say a word. . . . It just blew me away."

McDonough, 55, declined to be interviewed. But Cox said the judge's actions were not a surprise. "He's a very kind man who listens to everybody," she said. "You feel you got your day in court when you're in there with him."

Not everyone in the courtroom shared her ecstasy. Lawrence, the attorney for Mount Vernon Apartments, called McDonough's action "highly unusual" and said the judge, whom he characterized as "very pro-tenant," unfairly cast his client as a coldhearted landlord unwilling to give a deaf couple a break.

"She was embarrassed by this," Lawrence said of the apartment manager, whom he declined to identify. "She felt it was somewhat unfair. . . . The couple were behind [in their rent] before, and slow catching up."

Lawrence said it wasn't the first time the couple had been taken to court over late rent payments. Still, he said, "we certainly didn't
intend to be the heavies here and put these people out on the street. We were going to be working with them."

Although the landlord rejected McDonough's invitation for a settlement, Lawrence said the judge could have called both sides to the bench and quietly settled the case. Failing that, the judge could have set a trial date, essentially giving the couple a few weeks to make good on what they owed.

Even as McDonough reached over the bench to hand Lawrence the money, the attorney asked to drop the suit. McDonough would have none of it, declaring the matter done, dismissed, dead.

Cox said she'll never forget the expression on Morris's face. "She had that stunned look, like this was the last thing she'd ever expect to see in a courtroom. . . . You don't think of judges this way."

McDonough himself remained out of sight most of the afternoon. A fellow judge called him a "very modest, generous man" embarrassed over the attention.

Staff writers Patricia Davis and Michael D. Shear contributed to this report.

Outstanding Cases from 2001. The following, according to my notes, are the remaining cases to be decided from oral arguments in 2001:
--Alabama v. Shelton: "In light of the 'actual imprisonment' standard, does the imposition of a suspended or conditional sentence in a misdemeanor case invoke a defendant's Sixth Amendment right to counsel?"
--LA v. Alameda Books - can a city prohibit the operation of more than one adult entertainment business at a single location, including an adult bookstore and an adult arcade by just relying on findings from other court cases from other jurisdictions?
--A number of telecommunications cases, not discussed here.

Applying a FIFO rule, look for these cases to be decided soon.

ADA v. Seniority. In my first comments on the U.S. Air v. Barnett case, before, I indicated it was a 5-4 decision. Actually, it should be seen as a 2-5-2 voting split.

Breyer, for the court (Rehnquist, Stevens, O'Connor, and Kennedy) holds that if an employer shows that if a requested accommodation conflicts with the rules of a seniority system, then the accommodation is not “reasonable.” However, "The plaintiff remains free to present evidence of special circumstances that make “reasonable” a seniority rule exception in the particular case. And such a showing will defeat the employer’s demand for summary judgment."

Stevens concurs and writes to note defects in the factual record (questions I had -- so I'm grateful he lists that these are not part of the record).

O'Connor also concurs but notes "I would prefer to say that the effect of a seniority system on the reasonableness of a reassignment as an accommodation for purposes of the ADA depends on whether the seniority system is legally enforceable." The first paragraph of her concurrence is interesting because she basically concedes she joins Breyer's opinion, although in disagreement with it, because otherwise "we would not agree on a resolution of the question presented in this case."

Scalia, joined by Thomas, writes, in relevant part:

Since, under the Court’s interpretation of the ADA, all workplace rules are eligible to be used as vehicles of accommodation, the one means of saving seniority systems is a judicial finding that accommodation through the suspension of those workplace rules would be unreasonable. The Court is unwilling, however, to make that finding categorically, with respect to all seniority systems. Instead, it creates (and “creates” is the appropriate word) a rebuttable presumption that exceptions to seniority rules are not “reasonable” under the ADA, but leaves it free for the disabled employee to show that under the “special circumstances” of his case, an exception would be “reasonable.” Ante, at 13. The employee would be entitled to an exception, for example, if he showed that “one more departure” from the seniority rules “will not likely make a difference.” Ante, at 13.

I have no idea what this means. When is it possible for a departure from seniority rules to “not likely make a difference”? Even when a bona fide seniority system has multiple exceptions, employees expect that these are the only exceptions. One more unannounced exception will invariably undermine the values (“fair, uniform treatment,” “job security,” “predictable advancement,” etc.) that the Court cites as its reasons for believing seniority systems so important that they merit a presumption of exemption. See ante, at 12.

Justice Souter, joined by Ginsburg, defers to the language as drafted by Congress. He notes that Congress did not include the same language in the ADA with respect to seniority rules that it did in "Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, each of which has an explicit protection for seniority." He's right about this.

Commercial Speech. O'Connor, in writing for the majority noted "If the First Amendment means anything, it means that regulating speech must be a last – not first – resort. Yet here it seems to have been the first strategy the government thought to try." In my opinion, she's correct. The law differentiates between those pharmacies which advertise (subject to one set of regulations) and those that do not (subject to another).

As I noted below, the voting tends to follow the analysis of Eugene Volokh -- except that here O'Connor writes the opinion. Perhaps she's trying to rehabilitate herself to her former clerk. J/K, of course. I have so much respect for Justice O'Connor that it's hard to joke about her.

Court Rules. In US Airways, Inc. v. Barnett, the Supreme Court today tossed out a 9th Circuit Decision which held that the Americans with Disabilites Act pre-empted company seniority rules. The Court held that the ADA does not require a level of accomodation which would allow a disabled employee to move to a different position within the same company ahead of workers with more seniority who would normally receive preference for that position according to collective bargaining. The Court did indicate that if the the employee could show special circumstances, s/he could receive preference for that postion.

The majority opinion is by Stephen Bryer. Stevens and O'Connor write concurrences. Scalia and Souter write separate dissents.

In the other case of the day, a free speech challege to administrative rules governing the advertisement of "compounded drugs," the Court struck down the rules, 5-4. In that case, Breyer writes the dissent, joined by Rehnquist, Stevens, and Ginsburg. This tends to substantiate Eugene Volokh's assertion that Breyer is the least committed to free speech. (O'Connor writes the opinion, Thomas a brief concurrence -- more a clarification and reservation.)

More later -- on both cases.

Cover Watch. I like Newsweek's stark black and white cover, "What Would Jesus Do?" Time magazine's cover on Autism is intriguing, but I confess that if I were choosing one magazine to take on a plane, it would be Newsweek.

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).