Randy Barnett. There are a few notes here and there -- the Professor, most noteably -- mentioning Randy Barnett as an ideal candidate for the Supreme Court.

I should write more about this -- these are some preliminary thoughts. Randy Barnett (like Roger Pilon) begin their theory of Constitutional Interpretation based on the limits of enumerated rights. Personally, I find this appealing and persuasive. However, this is not where the Court is now, either on the "right" or the "left." Therefore, to nominate a Barnett or Pilon could burn up a tremendous amount of political capital.

For example, with Barnett he has theory of unenumerated rights is that there is a general presumption of liberty that places the burden on the federal government to show that its regulatory activity is consistent with the the Constitution:

At the national level, the government would bear the burden of showing that its acts were both ‘necessary and proper’ to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its ‘police power’ – that is, the state's power to protect the rights of its citizens.

--Randy E. Barnett, A Ninth Amendment for Today's Constitution, 26 VAL. U. L. REV. 419 at 426. (1991) .

Oh, what the heck, I'll have to come back to this.

He is evil. I used to be a liberal -- I was proud of it. I can not get over, however, how the left deludes itself and twists the language to support its own agenda. Ben Domenech had a brief syllogism that included the phrase "Bill Moyers is evil." Yeah, right, I thought, how is he going to prove this. So I clicked on the link and found Pope Moyers writing

It includes using the taxing power to transfer wealth from working people to the rich.

It includes giving corporations a free hand to eviscerate the environment and control the regulatory agencies meant to hold them accountable.

Wha...?

Transferring wealth? -- umm, Bill look, I'm opposed to regressive taxation and corporate welfare -- those are values that I didn't lose when I left your brand of liberalism, but it's the statists like you that favor giving government control over private wealth and spending decisons. Eviscerating the environment? When did you get a Michael Moore sized lobotomy?

Of course your main concern was the first one on your list:

That mandate includes the power of the state to force pregnant women to give up control over their own lives.

Try this on for size: The power of the state to force business owners to give up control of their businesses to protect a fictious protected animal?

Why, Saint Bill, do you believe the state has the power to seize money and property from private individuals, but is powerless to intervene when a defenseless voiceless person's life is at state?

Ben's right -- Bill Moyers is evil.

Victory. Last night's win by my Raiders was sweet. Jerry Rice is, without a doubt, the greatest wide-out to ever play the game. Rod Woodson keeps surprising me as well -- his interception and return was definately the turning point in the game. And what can you say about Rich Gannon and the O-line? Magnificent.

IMHO, Referee Mike Carey is the best in the business today -- there were only two officiating problems: (1) Shannon Sharpe caught the ball that they ruled was a dropped pass, although this may be one of those instances, like the Tuck rule, where they had to rule the way they did. (2) That whole foul-up with the clock on the Raiders first possession of the second half -- the officials were too slow to spot the ball after a measurement, then they reset the clock for five seconds instead of 25 and neglected to tell Gannon.

Next up, New England (speaking of the tuck rule).

Oh yeah, (update), I forgot about the ruling on the sideline pass that cost Gannon the record of thirty straight completions to open the game. This was a pretty minor play in the context of things, although much later in the game the MNF crew showed that the sideline pass, which had been caught and ruled out-of-bounds, was a good, i.e., valid, catch -- it was in bounds. You know when they go back during the week and review film, the NFL will make corrections to statistics related to yards rushing and so on. I wonder if they would make a change on this -- it doesn't affect the outcome of the game, but it does alter the record book. I think that, after further review, they determine this was a valid catch, they should put it in the books as 30 straight completions. Either that, or they should stop using the film to alter game statistics. (Although, I acknowledge there is a qualitative difference between yards rushing and number of completions.)

What if someone steals your thumb? I really love the Atlantic magazine -- it's one of the few I subscribe to. The September issue had an article with a number of wonderful sidebars on security. One section dealt with the current facination with biometrics:

Biometrics—"the only way to prevent identity fraud," according to the former senator Alan K. Simpson, of Wyoming—identifies people by precisely measuring their physical characteristics and matching them up against a database. The photographs on driver's licenses are an early example, but engineers have developed many high-tech alternatives, some of them already mentioned: fingerprint readers, voiceprint recorders, retina or iris scanners, face-recognition devices, hand-geometry assayers, even signature-geometry analyzers, which register pen pressure and writing speed as well as the appearance of a signature.

* * *

Smart cards that store non-biometric data have been routinely cracked in the past, often with inexpensive oscilloscope-like devices that detect and interpret the timing and power fluctuations as the chip operates. An even cheaper method, announced in May by two Cambridge security researchers, requires only a bright light, a standard microscope, and duct tape. Biometric ID cards are equally vulnerable. Indeed, as a recent National Research Council study points out, the extra security supposedly provided by biometric ID cards will raise the economic incentive to counterfeit or steal them, with potentially disastrous consequences to the victims. "Okay, somebody steals your thumbprint," Schneier says. "Because we've centralized all the functions, the thief can tap your credit, open your medical records, start your car, any number of things. Now what do you do? With a credit card, the bank can issue you a new card with a new number. But this is your thumb—you can't get a new one."

I heartily recommend the full article and the sidebars. (Oh, what the heck I'll put in this long quote from one of the sidebars:

Surprise, when it happens to a government, is likely to be a complicated, diffuse, bureaucratic thing ... It includes gaps in intelligence, but also intelligence that, like a string of pearls too precious to wear, is too sensitive to give to those who need it. It includes the alarm that fails to work, but also the alarm that has gone off so often it has been disconnected. It includes the unalert watchman, but also the one who knows he'll be chewed out by his superior if he gets higher authority out of bed. It includes the contingencies that occur to no one, but also those that everyone assumes somebody else is taking care of. It includes straightforward procrastination, but also decisions protracted by internal disagreement. It includes, in addition, the inability of individual human beings to rise to the occasion until they are sure it is the occasion—which is usually too late. (Unlike movies, real life provides no musical background to tip us off to the climax.) Finally, as at Pearl Harbor, surprise may include some measure of genuine novelty introduced by the enemy, and possibly some sheer bad luck.)

Like I said, read the whole thing.

War Plans? My wife said she heard that the NY Times published a leaked copy of the Iraq War Plans in today's paper. When I checked on-line I didn't see anything about this. Does anyone know anything about this. I also skimmed Instapundit and didn't see anything. Let me go check the Judds or Kevin or one of the other blogs.

Update. Not even Sgt. Stryker has anything about it. Maybe there was nothing.

More. Here it is.

Cover Watch. Newsweek magazine wins hands down. In fact this cover is so cool, I'm planning on going to the newsstand just to buy a copy for the cover. Time has something similar, but the Time cover seems sort of smirky. The Time caption is "How they aced their midterms."

Curiously, and I know I don't normally throw U.S News and World Report into the mix, however it has a cover story on Menopause -- very surprising to go so soft against the backdrop of such a major news story.

Clarification. Howard Bashman has this succinct note up correcting two mistakes in a NOW press release:

The article quotes the president of the National Organization for Women as saying, "Roe v. Wade hangs by a single vote. Tipping the balance of the Supreme Court with one more extremist justice would ensure the loss of abortion rights for generations." That quotation contains two serious errors by my count. First, the vote on today's U.S. Supreme Court to uphold Roe v. Wade is 6-3, not 5-4. (When Justice Ruth Bader Ginsburg replaced Justice Byron R. White on the Court, the vote to uphold Roe increased from 5-4 to 6-3.) Second, if Roe v. Wade were overruled by the U.S. Supreme Court -- a prospect that is not especially likely -- abortion would not thereupon become illegal throughout the United States. Rather, each State would then be entitled to enact laws regulating the availability of abortion, or not, as it saw fit.

The second point is one I tried making below. Please see also, Orrin Judd's comments in response to that post.

Idiots of the World, Untie! I was disappointed that Amendment 2 to the New Mexico Constitution did not pass. This would have removed the language from the state constitution prohibiting idiots from voting. Of course, this just makes me all the more happy to live in Virginia where we not only have an idiot for Senator, but for Governor as well.

BTW, I have to say that the NM Secretary of State, Rebecca Vigil-Giron, is the most atypically beautiful SOS I have ever come across.

Cumulative Power Ratings. Continuing my attempt at combining the main media power rankings from these site: ESPN, CNNSI, TSN, War Room, Sports Central, Sagarin (USA Today), CBS, and AP indexes or ratings into one cumulative list. It's interesting to me to see the clusters you get from this. Also, if I were to really play with this, I'd include standard deviations -- the AP list is the most divergent -- in the meantime, I'm including team highs and lows from the different lists.

	No.	Team	Cu.	Hi	Lo
	1	Packers	1.38	1	3
	2	Broncos	2.5	1	5
	3	Eagles	3.5	1	6
	4	49ers	4.5	4	6
	5	Saints	4.88	3	11
	6	Bucs	5.88	2	8
	7	Steelers	8	6	10
	8	Chargers	8.38	5	15
	9	Falcons	10	9	11
	10	Patriots	10.13	5	14
	11	Dolphins	10.63	7	16
	12	Chiefs	12.38	7	17
	13	Raiders	13.13	9	16
	14	Bills	13.25	10	18
	15	Rams	13.88	7	19
	16	Titans	17.13	12	24
	17	Giants	17.5	14	23
	18	Redskins	18.5	15	22
	19	Colts	19.38	16	24
	20	Browns	19.63	17	22
	21	Ravens	20.13	16	24
	22	Cardinals	21.38	17	30
	23	Jets	22.5	16	27
	24	Jaguars	23.63	21	26
	25	Panthers	25.25	23	29
	26	Lions	25.5	22	27
	27	Cowboys	26.88	25	29
	28	Bears	28	25	30
	29	Seahawks....	28	26	30
	30	Vikings	29.13_	28	30
	31	Texans	31.13	31	32
	32..	Bengals	31.88	31__	32__

[A Thousand Thank Yous to Mark Byron for the tablesizer macro.]

Natch! (Actually, I was hoping for James Madison.)

Which Founding Father Are You?

Good bye Dick.
Ben D has a short note up about Dick Gephardt stepping down as Minority Leader. Like Ben, I lack a visceral hatred of Dick -- I think it's because he is an effective representative of the loyal opposition. He fleshes out that concept, like a Henry Hyde does for the Republicans. He can be partisan and infuriating -- but when push comes to shove, he'll try to make a policy work, even if he hasn't supported it. This is opposed to Tom Daschle, who is clearly Eddie Haskell's evil twin.

I'm not sure whether Dick was very effective as minority leader -- he didn't gum things up as much as Daschle did -- but I think he would've been effective as Speaker of the House. On the other hand, Daschle is more effective being in a sniping minority leader type position.

Update. Martin Frost is talking about running. I was very impressed with him in the Iraq debates. Moreover, he's right to be "very uneasy about the party moving sharply to the left" under Nancy Pelosi, which would guarantee the Democrats becoming a "permanent minority party."

Good-bye Roe? One theme I'm seeing and hearing in the comments of those whining about the Democrats losses yesterday is "Say good bye Roe v Wade. . . . Now, let the bloodletting begin." (expressed by Paul A'Barge here).

Lay aside the unintended irony that an end to abortion on demand = bloodletting. Lay aside the fact that the GOP tend to back navel-gazing judges like Souter and Kennedy ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood of Southeastern Pa. v. Casey (91-744), 505 U.S. 833 (1992)). Lay aside the impact that stare decisis will have on the Court. Let's imagine what would happen if Roe were over-ruled.

I know, the next day old men who look like Jesse Helms and William Rehnquist will be roaming the streets looking for women to force them to bear children. Robert Bork will be lurking around alleys with coat-hangers stuffed inside his coat. Of course, it won't be long before a woman will have to make the daily walk to markets with picture signs because women are no longer allowed to read. It won't be long before the monthy ritual of praying that the Commander will make her pregnant.

Really?

No. At worst, if you believe in the unfettered access to abortion on demand is that now politicians will actually have to take a stand. If they say they are opposed to abortion, they will have to come up with a plan to curtail, regulate, or ban it -- in their jurisdiction only. This last element -- that it will be a local or statewide ban is something pro-abortion conservatives or constitutionalists will be insisting on -- asking, as they have for so many other issues -- where does the Constitution give Congress the power to regulate abortion? And the Rehnquist conservatives on the Court, if they are consistent, will follow the line of cases they've cautiously began establishing and strike down Congressional restrictions. (That is, if Congress were to get a majority in both Houses to proceed with a regulation, something I'm dubious of).

So what does that mean? It means some states, perhaps Louisiana and Utah, will sharply curtail abortion. Some others may end third term abortions and place limits on second term abortion -- in other words, it will be pretty much like the legal limits employed by France in those states. In the other states -- including New York and California, the most liberal (meaning non-existent) abortion laws in the world will go unchanged.

What it would mean is that the fiction that the U.S. Constitution guarantees the right to an abortion will itself be extinguished.

Votes Count. In South Dakota, they are now reporting all 844 precincts in and the margin of victory for Johnson is 528 votes -- less than one voter per precinct.

I don't know if this includes the absentee ballots. Oh, and the Libertarians gave their 3,071 to Kurt Evans.


______________________ TOTAL _ PERCENT _ PRECINCTS ___ TOTAL
_______________________VOTES _ OF VOTE _ REPORTING _ PRECINCTS

U S SENATE
(L) EVANS KURT _______ 3071 _____ 1 _______844 ____ 844
(D) JOHNSON TIM _____167477 ____ 50 ______ 844 ____ 844
(R) THUNE JOHN ______166949 ____ 49 _______844 ____ 844

Out of Ashes. It looks like Connie Morella is going to lose her House seat. If I were a Democrat, I don't know that this is necessarily good news -- she could go after Barbara Mikulski's seat in the Senate in 2004. That would be interesting...

We Did It!!!! I'm feeling very celebratory -- we beat the tax increase. And my prediction about Sununu losing is off the mark. It looks like the Leahy Lynch mob is out of business.

Not Good. What I'm hearing about the elections so far is not good -- people voting in Maryland say the system has become more computerized and technological - and less mechanical. This gives the appearance of multiple possibilities for fraud. Voting machines in Montgomery County, a Democratic stronghold, have a header that say the voter is casting a "Democratic" vote.

I'm sure we'll be hearing stories about failures, mistakes and allegations of fraud and intimidation. I've already indicated I think that if the Maryland Governor's race is close, you're going to see votes coming in for KKT that will reek of 3 week-old crab cakes.

Not good -- this is not good. More later.

Update -- at just about 11 EST, Ehrlich is about 80,000 votes ahead -- too much for even the Democratic machine to overcome. I think if it narrows to about 8-10,000 votes, they may pull something, but this may be too much.

Shakin' All Over. Dang -- lots of big aftershocks in Alaska following the 7.9 earthquake yesterday. Seven to be precise. I was supposed to go to Alaska last month but begged off the trip. I heard about the 6.7 quake from the folks who went and was glad I missed it. I've been in two 7+ earthquakes in my life and don't want to experience another one. The last one in Alaska was a 4.7.

Remember a "magnitude 6.7 earthquake releases over 900 times the energy of a 4.7 earthquake - or it takes about 900 magnitude 4.7 earthquakes to equal the energy released in a single 6.7 earthquake!" From this website.

Update -- still quite a few aftershocks, including at least two over 5.0.

My predictions. Here are my predictions for tomorrow [Beware, I picked three losers this weekend: Oakland Raiders, Notre Dame, and the Asylum Idiots.]:

Senate: 51 Rep, 48 Dem, 1 Ind
House: 230 Rep, 204 Dem, 1 Ind
Governors: 27 Dem, 23 Rep, 0 Ind
Predictions: (1) Hutchinson, Cleland, Sununu, Carnahan and Mondale lose. (2) Thune wins (3) Landrieu gets 53% and avoids the Pearl Harbor run-off. (3) In a replay of 1994, KKT "wins" Maryland with an amazing delivery of votes from Baltimore. (4) Linda Lingle wins Hawai'i governorship. (5) George Gekas, Helen Bentley, Felix Grucci and Connie Morella all win close races to lead the GOP resurgence (6) James Traficant gets 30% of the vote and comes in second.

Update Did I say Traficant would get Thirty percent -- are you sure? I thought I said Thirteen percent. ;-P

Election 2k2 - the Warner Scenario The Domenecher is soliciting predictions for the November elections -- I'll be sending those along later tonight. In the meantime, here's my very far-fetched prediction (with appropriate credit to Alan Drury and Christopher Buckley).

We'll Call this the Warner Scenario (or, if you want to be dramatic, the Warner Nightmare).

Monday Evening, November 4, 2002 -- after a little Monkey Business with Elizabeth Rae Fox, the regular mistress of Sen. Edward Kennedy, Senator John Warner, or Foghorn Clegghorn, as voters in the Great Dominion affectionately call him, starts to seize and turn blue. It seems that he has a chicken-bone lodged in his throat. He flails and then collapses. Ms. Fox, not sure what to do, calls Senator Kennedy. Kennedy, who will claim much later that he thought Fox had already called for an ambulance, will advise her to do nothing -- she should secure a neck brace and appear in public as much as possible over the next day. Preferable wearing a sporty, yet conservative blue blazer.

For the next 12 to 18 hours, Kennedy is the only one ("other than that bimbo") who knows that the elegant John Warner's splendid senatorial body is cooling and he springs into action. The Democrats don't have anyone on the ballot in Virginia opposing Warner. Perhaps he can arrange a little New Jersey justice and have the ballot reconstructed to put a Democrat on the ballot. Does he have any kin currently living in Virgina? Or have those that do moved north for a few months to help Bobby's brat, KKT? Going to court might tip off the Republicans that they have a stiff on the ballot, not that they didn't know that already. He thinks the courts in Virginia aren't as reliable as those in Virginia -- they actually follow the written law down there -- not like during the 50's when he was in school and pop could make arrangements. The most votes win, so he just needs to call some friends and get a quick write-in campaign going.

Tuesday Morning -- very early, November 5, 2002 -- Kennedy gets off the telephone with another Virginia fundraiser -- why do they all go to bed so early -- it's only 3 a.m.? They all indicate they'll make calls and get out a write-in vote. He thinks he should've proposed a candidate -- he just can't remember anyone down there -- other than the fundraisers and they make too much to want to go into politics. They don't know what a babe magnet power is. Anyway, all he needs is a few hundred voters picking one good Democrat. Hell, probably all he needs is a few dozen writing in the same name to win. Besides, don't we have the Governor down there?

Tuesday Morning -- sunrise, November 5, 2002 The polls in Virginia are open. John Warner's maid let's herself in, quietly and soon realizes he's sleeping off another drunk on the floor. At least this keeps him from pawing at her, she thinks and goes to work in another room.

Tuesday Morning -- 9:30 a.m. November 5, 2002 Calls are being made across Virginia -- in Richmond, telling friends to write in Doug Wilder; in Northern Virginia, telling friends to write in Chuck Robb "or that Volvo dealer"; in Southside, telling them to write in one of the Byrds; in Charlottesville, it's Larry Sabato; at the Beach, the fundraiser likes Alan Diamondstein; in the Valley they're writing in Ralph Sampson. Meanwhile, Warner's driver is cooling his heels, waiting to drive his boss to Richmond for the big victory party.

Tuesday Morning -- late, November 5, 2002 The Warner staff discover he's dead. Someone, probably a mole, actually tips someone off at the state Republican party of this fact. Since the governor is a Democrat, he gets to appoint if they don't do something. (Just like the Wellstone Democrats, no one much cares about the former Senator -- now just a cold corpse). Perhaps we can pull a Laufenberg --you mean Lautenberg, Laufenberg was a Redskins quarterback -- whatever.

Tuesday afternoon -- November 5, 2002 "The GOP efforts to substitute perinnial Republican J. Marshall Coleman on today's ballot was rejected this afternoon by a court in Richmond. In other news, Senator John Warner, the seventh husband of Elizabeth Taylor, passed away today . . ."

Tuesday, November 5, 2002, 7:00 p.m. "Most of the polls are closing now in Virginia amidst a flurry of lawsuits, at last count 31 lawsuits had been filed from Arlington to Abington. By various court orders, the polls in Manassas, Hampton, Lee County, Suffolk, and Danville are all still open. . . ."

Tuesday late - November 5, 2002 ". . .thank you, Peter Dan, you're right, it does look like the revenge of the 'Cocoon Generatation:' Walter Monday and Frank Laufenberg are both winners and in Virginia the early write-in candidates to take the seat of John Warner are Harry F. Byrd, Jr., James Madison, Thomas Jefferson, and George Washington. With the Senate appearing to be evenly split, the winner of this race could decide who controls . . ."

Thursday afternoon -- November 7, 2002 "Who is the hell is Nancy Spannaus?"

Cover Watch. Think young! Newsweek uses Olie, Arthur, Blue, et al. to attract the eye of the little shopper. Buy it Mommeee. Think younger! Time takes you inside the womb. If I'm the one making the purchase, I'd go with Time.