Supremes Strike Down McCain-Feingold. Reading the Supreme Court's latest free speech decision, the Straton case, I was struck by how strong and broad the language of the opinion is. The second sentence lays it out: "Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills." The Village of Straton adopted an ordinanace requiring registration prior to engaging in door-to-door speech. Those who registered were given a permit -- no fee was charged and the local government made no determination as to whether the speech was approved. In other words, it was basically a notice requirement with a permit being issued after notice.

The Court, using pretty sweeping language struck down this ordinance:

It is offensive–not only to the values protected by the First Amendment, but to the very notion of a free society–that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

The more I read this, the more I think that the Court is sending our politicians, most noteably John McCain and Russell Feingold a strong message that their so-called campaign finance reform measures are patently unconstitutional.

After the passage quoted above, the Court goes on to mention three broad areas that are unconstitutional, on their face: (1) Any restriction on anonymity ("First, . . . there are a significant number of persons who support causes anonymously.") (2) Obtaining a permit prior to engaging in speech ("There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official."), and (3) Restrictions that impede spontaneous speech ("Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance.")

McCain-Feingold, with its restrictions and bans on political speech in the form of a 30 or 60 blackout period in advance of an election, its burdensome disclosure requirements, and its registration and permit requirements, is clearly unconstitutional and will be quickly quashed by the Court.

Update [Via Instapundit] The WaPo's lead editorial today speaks in favor of the Court's decision noting:

Yet the court rightly rejected even this minimal regulation. Requiring people to register in order to speak, as Justice Stevens points out, renders certain types of spontaneous speech illegal. . . More fundamentally, such a licensing scheme insinuates the government -- however minimally -- into the exchange of ideas between individuals. The government needs a compelling reason to burden such communications, and the reasons Stratton offers -- protecting privacy and preventing con artists from preying on residents -- don't remotely justify the intrusion. It isn't the place of government to protect people from being irritated by the religious or political convictions of those among whom they live.

Yeah! The Post is right on this -- so why doesn't it agree when it comes to McC-F? Simple, it likes the shift of power from the people to the "professional journalists."

Strange World. Missouri Episcopal bishop George Wayne Smith attacks the head of the Southern Baptist Convention and defends the Islamic faith. According to the news article, Bp. Smith was provoked to call a news conference which was held "before the altar in Christ Church Cathedral" because Rev. Jerry Vines, the former president of the SBC, told a conference of pastors that "Islam is not just as good as Christianity." Okay -- not sure what Vines meant by that, but it seems to me that if you are a minister in a Christian church of any kind, you are because you implicitly believe that your church is better than another. For example, the article notes that Bishop "Smith, who was baptized in a Southern Baptist congregation as an adolescent [] later converted to the Episcopal Church while a student at Baylor University, a Baptist college in Waco, Texas." So, in the Bishop's case, he believed that the Baptist denomination just wasn't as good as the Episcopal denomination. That's not a big deal, is it?

The article goes on to note that Vines "went on to call Mohammed 'a demon-possessed pedophile' in reference to the fact that the prophet's 12th wife was nine years old when they were betrothed." To which Bp. Smith responded: "To equate Mohammed's marriage with pedophilia is horrific." The article further notes Smith, repeating earlier statements from the news conference "that the marriage was not consummated until the girl was of age. He added that betrothals of children were common in Mohammed's day as a way to unite families. He explained that such customs are not practiced by Muslims today."

I'm concerned, first of all, that the Bishop is using the altar of a cathedral as a place to hold a news conference. Second, I'm troubled that the Bishop doesn't have a problem with a guy having 12 wives. Vine's statement seems to be intemperate, yes, but I'm not sure it warranted Bishop Smith's counter-attack.

Update In the comments Brian Jones writes "You ascribe a type of gamesmanship to church choices that I believe is specious." I would normally address a response to a comment in the comments, except that he is quite right. Please read his full comment. I knew that there was something I didn't like about this when I wrote it. My analogy is wrong; comparing choices among Christian denominations with the differences between Islam and Christianity is specious. If you choose to follow Christ, you reject all other religions, but you are free to follow Him within any of the denominations or not. If you follow Mohammed, you reject the divinity of Christ.

Toxic Sludge Good. The Washington Times today has a memo from the EPA which states that the dumping of toxic sludge by the Army Corps of Engineers is good for the fish in the area. The EPA writes the sludge "actually protects the fish in that they are not inclined to bite (and get eaten by humans) but they go ahead with their upstream movement and egg laying."

Earthquake in Indy? This afternoon -- I wonder how close this is the New Madrid?

A magnitude 5.0 earthquake in SOUTHERN INDIANA has occurred at: 38.07N 87.68W Depth 5km Tue Jun 18 17:37:13 2002 UTC. This is just 10 miles from Evansville.

Update Here is a link.

Last Thought. When I was a young boy, and my father was stationed in Taiwan, I had an opportunity to see Madame Chiang Kai-shek (or Soong Mei-ling) she was very well respected from at least the 1940's through the 1970's. In 1943, she addressed the United States Congress. It's my understanding that she's still alive.

Michigan School Choice is covered in this article.

Idle Thought 4. As Italy learned today, the prevent defense never works. The best defense is offense.

Idle Thought 3. Was the first true distortion of time and space the eternal 3 seconds that took place in Munich in 1972? It seemed to go forward, then back, then forward, then back, and finally forward again. Has Stephen Hawking written about this?

Idle Thought 2. Why are so many of the great American writers of the last century from the South? Why are so many of the great folk singer/poets from Canada? (or in Bob Dylan's case, near Canada.)

Idle Thought 1. Is there any significance to the Volokh Conspiracy's Juan Non-Volokh e-mail acronym being jnov? For human beings (i.e. non-lawyers) a JNOV means "judgment not withstanding the verdict" a situation where the Judge basically overrules the judgment of the jury.

Movies. A few notes on some recent movies. First, The Rookie, which the family took in on Father's Day, may be the best baseball movie of all time. [ESPN list]

Second, read Charlie Murtaugh's thoughts on Tora, Tora, Tora (which too many have panned, IMHO), Pearl Harbor, 9.11 and intelligence failures. I wouldn't go so far as to equate the FDR-debunkers with Cynthia McKinney (one, amateur historian Daryl Borgquist, I worked with for 2 or 3 years, is a really great guy). The incident that always got me was the Opana radar report.

Third, my daughter and I watched Cromwell on Friday night -- it was the first time I saw it since it came out in 1970 or 1971. We both enjoyed making Star Wars references to Alec Guiness ("use the force") who played King Charles I. The movie is a good one, although there are a number of historical flaws both glaring and small. Nonetheless, it pretty accurately portrays the conflict between a democracy and a monarchy -- how do you overthrow a monarch without being consumed by the same chaos yourself. With Guiness in the movie, I kept thinking that George Lucas should've watched this movie before doing Phantom Menace and Attack of the Clones. He tries to set up a similar contest but fails miserably, because he doesn't know what's wrong with the empire and what's right with the Senate. For more extensive criticism along these lines, see Jonathan Last's essay in the Weekly Standard.

Fourth, casting Matt Damon as the lead in the Bourne Identity doesn't seem right.

Fifth, I'm really looking forward to the Minority Report -- I think it will actually surpass the Philip K. Dick short story which is very imaginative, but too truncated. BTW, I just re-read Dick's story and came away amused at his comparing the three pre-cogs to computers where one might be in error, and if two are in conflict, you don't know which is right, but if two of the three computers agree, you can rely on the majority report. Of course, if the three computers are running the same programs on the same data, they won't disagree. See also, GIGO. Plus it was amusing to see our future people lighting up pipes and cigarettes like they would in the 1950's.

Update: "Spielberg's sharpest, brawniest, most bustling entertainment since Raiders of the Lost Ark"

— RICHARD CORLISS, Time Magazine

Ordered Liberty. Supreme Court Justice-in-waiting (my not-so-humble opinion) Eugene Volokh has a series of interesting discussions about the legality and morality of forced confessions running over the past week. In the latest, he asks

But if the dirty bomb / nuclear bomb / smallpox vial is hidden in Los Angeles, is it really the case that the Constitution prohibits the use of truth serum on a suspect? Let's say that we conclude that outright physical torture is just not allowed, no ifs, ands, or buts -- perhaps that's right. Are we really prepared to say the same even as to truth serum?

I say no (and, it should be noted, that Eugene's hypothetical imagines our truth serum is effective and reliable). For this, I would draw on Justice Robert Jackson's dissent in Terminiello v. City of Chicago (all the way at the end/bottom):

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

See also, Justice Arthur Goldberg in Kennedy v. Mendoza-Martinez (1963) ("...while the Constitution protects against invasions of individual rights, it is not a suicide pact.")

In short, by continuing the exclusion of evidence obtained by coercion, we preserve the liberty interest necessary for liberty, while at the same time providing for a limited means of also maintaining a civil society. In short, ordered liberty.

That's a wrap. Six cases out today -- Zelman was not one of them (this does not bode well). I'll have a rundown on the other three shortly. Or read them here.

Barnes v. Gordon. Punitive damages may not be awarded in private actions brought pursuant to the ADA. Unanimous decision. Majority opinion by Scalia and an opinion joining in the judgment (but not the majority opinion) by Stevens joined by Ginsburg and Breyer.

Horn v. Banks a per curiam clarification with respect to the Antiterrorism and Effective Death Penalty Act of 1996. Since this is a 3rd Circuit case, look for Howard Bashman to be all over this.

Carrey v. Saffold This is another case dealing with the Antiterrorism and Effective Death Penalty Act of 1996 which provides a one year statute of limitations for filing a federal habeas corpus petition, but it tolls the limitations period while a “properly filed application” for collateral review is “pending” in the state courts. Breyer, writing for a 5-member majority holds that "pending" means one thing, while Kennedy, writing for the 4 dissenters, sees it meaning something else. The three more centrist judges split 2-1 on this with Souter, the liberal-leaning "centrist" and O'Connor going with the majority (Kennedy writing the dissent).

Two More cases: The Jehovah's Witness case -- town regulations on door-to-door soliciting were struck down (no surprise) and the police don't have to give public transportation users notice of their rights (big surprise -- NOT -- post-9.11).

More. The first case, above, was Watchtower Bible & Tract Society of New York, Inc. etc. v. Stratton, Ohio, et al. 00-1737 and was appealed from the 6th Circuit Court of Appeals (240 F.3d 553). This was written by Stevens 8-1, Rehnquist dissenting.

The second, U.S. v. Drayton, Christopher & Brown, Clifton. 01-0631 was appealed from the 11th Circuit Court of Appeal s (231 F.3d 787) . Basically, if you get on a Greyhound bus in the Florida heat, wearing bulky jackets and baggy pants, you're going to be searched. Kennedy writing for a 6-3 majority.

Supremes. First case out -- the Fior d’Italia loses, the IRS wins. This overturns what I thought was a very persuasive opinion from Judge Alex Kozinski holding that the IRS does not have the authority to guess at what tip income may be and then assess a tax on the restaurant. Details later...

Lower Court Decision: 9th Circuit Court of Appeals (242 F.3d 844) .

More Interesting -- a 6-3 decision with Scalia, Thomas and Souter in dissent. Breyer writing for the majority

Today. Today should be the day the Supreme Court announces its decision in the Zelman (school voucher) case. There's only one other pending case (about 19 pending cases altogether) that has been on the docket longer, so this is just an educated guess. Check back here after 10:20 or so for updates.

Chief Justice Kennedy? The WaPo looks at whether Anthony Kennedy is positioning himself to be nominated as the next CJ. The internet version of the story should be reviewed if for no other reason than to get a look at the picture of Clarence Thomas in the background, rolling his eyes.

Deep Throat? Who was "Deep Throat"? Howard Kurtz digests John Dean's picks. However, after his books on John Belushi and William Casey, I'm convinced that there was no Deep Throat -- that was just a cover story invented by Woodward so he could make up his own facts. Do you really think Janet Cooke was unique?

2-0. USA beats Mexico in World Cup action.

Cover Watch. Newsweek on the brain beats Tom Cruise on Time's cover -- although, had Time gone with Pre-crime, maybe tying it in with pre-empting the terrorists, it would've won.

Kewl! Thanks to the Judds and Tracey Wilson I now have a button (Go here, and scroll down). They offered to put one together for me awhile back -- I started to play with one but never got it done. Looking at my schedule, I could see I wasn't going to get it done, so I finally surrendered my pride and accepted their offer -- why did I wait so long?

Learn from the Idiot -- never look a gift horse in the mouth.

Go USA! Beat Poland!

Update 7:34 EST: Argh! Poland up 1-zip, uh, nil. Emmanuel OLISADEBE(ski, I'm sure).


2nd Goal. . . and just 5 minutes into the game... At least Pawel KRYSZALOWICZ is a Pole...

It's over -- a third goal in the 66th minute. So how does all that goal differential stuff work -- Let's see, I guess South Korea has to win 15-0?? And I guess the US must score at least once, right? Update. Actually, on the webcast, they just noted that Korea finally scored and that the US would continue if Korea won 1-0.

Finally. A US goal -- but just, what, 7 minutes left. Korea's still ahead 1-0.

Game is Over, and the USA loses, but since Korea has won, the US goes on.

Comments. After all my efforts, I think I have finally activated comments. I know I like to use this feature on others blogs, we'll see if it works here.

Apology. After talking with my Dad last weekend, I see I owe Chris Burgwald a public apology. Although we can, and do, disagree, I must acknowledge that my approach toward that disagreement crossed off the path that Augustine mentions ("So that we may keep to the path, in love, as we fare on toward Him, 'whose face is ever to be sought.'"). I'm sorry Chris and ask your forgiveness.

As my father-in-law frequently says "We can disagree without being disagreeable."

Neil Young. New book out on Neil Young, who is probably my all-time favorite.

Bethlehem Chapel. Frontline is running a show on the siege of the Church of the Nativity in Bethlehem tonight.

"God is great. God is good. Thank you, God, for my food." That simple prayer may be said aloud by a 5 year old kindergarten student again in New York. Once again we see the triumph of the citizen over the petty official.

Catching Up. I'll spend the next few days catching up, after a quick trip to visit my parents in North Carolina and then a visit to Hampton for work. I received a lot of messages and will get to those as well.

Not a vehicle. From Rich Hailey, I see that a Federal Judge has ruled that an airplane was not a mass transportation vehicle as defined by section 801 of the USA Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 374-76 (codified at 18 U.S.C. § 1993) (“section 1993"). Hailey lodges his complaint against the defense attorneys in the case, but when I heard this story on the radio, my gripe was against the stoopid judge.

So, when I checked the story out, I was pretty surprised to find out the judge in the case was William G. Young, a very respected trial court judge, appointed to the bench by President Reagan. Reading Judge Young's decision, which you can read here (in .pdf), I can see his point.

The relevant text of the US Code, Title 18, §1993, is as follows:

Sec. 1993. Terrorist attacks and other acts of violence against mass transportation systems
``(a) General Prohibitions.--Whoever willfully--
``(1) wrecks, derails, sets fire to, or disables a mass transportation vehicle or ferry;
``(2) places or causes to be placed any biological agent or toxin for use as a weapon, destructive substance, or destructive
device in, upon, or near a mass transportation vehicle or ferry, . . .

Etc.

The statute later contains a series of definitions, including one for "mass transportation," however, not one for "mass transportation vehicle" or "vehicle" itself. “Mass transportation” is defined by a crossreference to section 5302(a)(7) of Title 49 of the United States Code (“section 5302"), “except that the term shall include schoolbus, charter, and sightseeing transportation.” 18 U.S.C. § 1993(c)(5). Section 5302 defines “mass transportation” as “transportation by a conveyance that provides regular and continuing general or special transportation to the public.” 49 U.S.C. § 5302(a)(7). Based on this, if Congress had just left it at "mass transportation," I'd say that Judge Young was wrong to toss this count.

However, Congress used the phrase "mass transportation vehicle" without including a definition or cross reference to a definition. So it is a legitimate issue as to whether "mass transportation vehicle" includes aircraft. I would agree with the government that it does, if there were no definition of "vehicle." In fact, so does Judge Young: "The Court holds that an aircraft of the type involved here engages in 'mass transportation' as that phrase is defined in section 5302." (slip opinion at 10. See also, at 12.) Therefore, if the U.S. Code doesn't define "vehicle," the count stands.

As you can imagine, the code does define "vehicle" very precisely: "The word ''vehicle'' includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land." Title 1, Section 4 (my emphasis). Moreover, the Supreme Court has previously slapped down a case that sought to stretch the meaning of "vehicle" to include aircraft, McBoyle v. United States, 283 U.S. 25 (1931), as Judge Young notes at 13-15.


As those of you who know me can guess, I look to Robert Bolt's A Man for All Seasons for guidance:

More (very still) What is the oath?
Roper (Puzzled) It's about the marriage, sir.
More But what is the wording?
Roper We don't need to know the (contemptuously) wording -- we know what it will mean!
More It will mean what the words say! An oath is made of words! It may be possible to take it. Or avoid it.

This isn't just a neat trick on the part of the defense attorneys -- if anything, this is yet another failure of Congress to adequately articulate what it want prohibited, restricted, or punished. If the Congress really intended to include airplanes in this statute, it should amend the law immediately.

More. See this story concerning the shoebomber. "Let's not tell the feds about this guy, we don't want anymore delays."

Hmmm. On the other hand, Title 1, Section 1 defines ''insane'' and ''insane person'' and ''lunatic'' to "include every idiot. . . "

Supremes. Six cases today -- I've only skimmed through them. The one that caught my eye was a case involving the EEOC and was unanimous in part and split 5-4 in part. What caught my eye was the 5-4 majority, with Thomas writing being joined by the four liberals. Time to surf over to How Appealing to get the real scoop.

Update. Family things kept me tied up over the weekend and now I'm in the middle of doing a training (and away from a PC). I should be back in the groove by Wednesday or Thursday.

This town's only big enough for one of us. The Poppa Ooo Mow Mow of the bloggesters today writes that King County Superior Court Judge James A. Doerty "appears to be a blithering idiot." I beg your pardon, Professor.

We look nothing alike. Here's his picture [scroll down], and mine, well I can't get mine up right now [no jokes], but I look something like this guy, or this guy.

Moreover, I think blithering idiots all over the globe will rise up in umbridge or outrage or some other complicated word, if you persist thusly.

It is clear that Judge Doerty has just "stopped watching wrestling because it's too complicated" so he needs some other amusement.

I think you owe all the blithering idiots an apology.

Gear. I thought I'd let you know that I, too, have a cafe press store. Although I didn't set it up to do any "Blithering Idiot" merchandise. We set this up to put together stuff for a family reunion for my father-in-law that we're doing this summer. What makes it kind of fun is that I was able to adapt two watercolors painted by the daughter of a civil war veteran who lived into the 1970's and was the matriarch of the family.

LPs. Speaking of old records, now that I have a CD burner, I hooked up my turntable and receiver to my computer and have slowly been putting my old LPs and 45s onto CD. Last night my oldest daughter came asking about this ancient technology. At first much of what she was asking was just in jest, but she actually was pretty interested in how it all worked. She was thrilled to actually be able to see and manipulate the disc. It is a lot different from a CD/DVD/VHS/CD-ROM/Floppy, -- even cassette etc. where you put the thing inside some sort of box and let it work.

It was fun for me to see her experience this old technology and thereby experience it again.

MARS NEEDS WOMEN The note and link from the professor reminds me of this old song by Tonio K:

well we argue all day
then we argue all night
we stand up sit down fight fight fight
i don't know about you
I'm just talkin' for me
but i don't see no future in this thing

i hear mars needs women
maybe you should apply
don't worry 'bout me baby
have a good time
i hear mars needs women
i don't know if it's true
but that's all right for you

you don't care about true
you don't care about false
you just want everyone to agree with you that's all
you can't live in the city
you can't live on the farm
you can't live nowhere on this planet with that kind of charm

I hear mars needs women...

yeah we argue all day
then we argue all night
we stand up sit down fight fight fight
so I'll take the attic
or the wilderness
you take the next flight out
they're waiting for you up there

I hear mars needs women...

(outro ramblings)
take your cool clothes....
Be sure to drop me a line from the Van Allen belt...
Is that intergalactic enough? Van Allen belt... hahahaha

© 1981 Worthless Music (ASCAP)

The Spong is Dead, Long Live the Spong. The Episcopal Church in the US, of which I am a member, has always had it's flaky bishops and clerics. Recently, we had a bishop by the name of John Shelby Spong who denied the divinity of Jesus, not to mention the resurrection. Such claims go beyond mere flakieness and cross over into heresey.

Thankfully, Mr. Spong has retired from his position and has gone off on his mission to create a new religion.

Regrettably, however, it appears that a newly ordained Bishop has picked up where Spong left off. John Bryson Chane (why do the heretics get such preppy names?), in his Easter sermon states:

, the Easter story…the event of the resurrection, which defines the core of our Christian theology, is, at best, conjectural, based upon what we are able to read from the Gospel accounts and the Book of Acts. Paul, the patron saint of this cathedral, wrote I Corinthians almost thirty years after the event of the resurrection. In fact, the concept of Jesus' physical, bodily resurrection, was not even part of the early Christian experience for the first forty years of the Jewish/Christian Community's life! It was not until the Gospel of Matthew, written in 85 of the Common Era, that an account of the bodily resurrection of Jesus was even mentioned!

Balderdash! As Paul himself writes: "...if Christ has not been raised, our preaching is useless and so is your faith." I Cor. 15:14.

In fact, what Paul writes in this 15th chapter indicates that this testimony what he initially received:

For I delivered to you first of all that which I also received: that Christ died for our sins according to the Scriptures, and that He was buried, and that He rose again the third day according to the Scriptures, and that He was seen by Cephas [Peter], then by the twelve. After that He was seen by over five hundred brethren at once, of whom the greater part remain to the present, but some have fallen asleep. After that He was seen by James, then by all the apostles. Then last of all He was seen by me also, as by one born out of due time. [1 Cor. 15: 3-8, NKJV (my emphasis)]

Moreover, there is a considerable body of scholarship that believes the initial statement made by Paul ("that Christ died for our sins according to the Scriptures, and that He was buried, and that He rose again the third day according to the Scriptures") was a primal creedal statement that circulated among the believers prior to, or contemporaneous with, Paul's conversion.

Even if you assume that this statement originated about 52 AD/CE, it still puts it in the lifetime of those witnesses who could contradict the story. And this isn't a matter of what someone wore on their first date, as Chane, started off his Easter sermon. This is a matter of life and death. When I saw my grandmother at the funeral home, I knew she was dead. If she came and talked to me the next week, several days after we had entombed her, I would know it. It's not a matter of getting details wrong or embellishing a story.

But maybe Chane is right. Maybe Paul and the other contemporary witnesses were wrong and just needed to step back nearly 2,000 years and look at if from the perspective of the new bishop of Washington, DC. Yeah, then we'd know that Jesus is dead and the preaching of a bishop who believes these things is, as Paul wrote, "useless."

Not Just Women. Both Peggy Noonan and Anita Hill have written recently about women in the headlines exposing problems within their agencies. Prof. Hill, in today's NY Times, writes:

The magnitude of Ms. Rowley's role in exposing the mishandling of vital intelligence has no direct parallel. However, it can be likened in the private sector to the central role that Sherron Watkins played in exposing the extent of corporate culpability in the Enron scandal.

Last week Peggy Noonan wrote:

Colleen Rowley . . . has joined the ranks of those women--these days, as others have noted, they are always women--who blow the whistle on sick and shameful actions within powerful organizations.

It should be noted, first, that it's not just women who are bringing these things out. Recall, for example, at the end of the Clinton years, Notra Trulock coming forward. [Actually, one of the scandals of the Clinton administration was the way it treated women as window dressing or cover to protect the President from his corruption and wrong-doing. Think back, for example, how he sent Secretary of State Madeleine K. Albright and Health and Human Services Secretary Donna E. Shalala out to the end of his driveway to confront reporters back on January 23, 1998; one of just two cabinet meetings he held that year. When Clinton wasn't using women as a shield, he was forcing them to their knees or attacking them for speaking the truth, as he did with Jean Lewis.] Two persons do not a trend make. What does make a trend is what the press chooses to report and why.

A place where I work(ed) [I want to leave it very ambiguous] had some Republicans in charge during the Reagan presidency who did some naughty things which resulted in headlines and Congressional hearings. The Clinton people came in and did the exact same things -- were slammed by the Inspector General for it -- but there were no hearings and no headlines. For me, it seemed like the reason behind this was purely a matter of politics -- the press covering up for its friends. [In fact, to a certain extent, it was worse than that. What the Democrats did was more like televangelist Jimmy Swaggert who did something he campaigned against. With the Republicans, at least it was what the Democrats warned against. In my desire to be ambigous, I'm afraid I'm being confusing -- sorry for that.]

When I read the Rowley memo, I felt shivers and my hair stood on end. I just kept thinking, I could've written this:

To get to the point, I have deep concerns that a delicate and subtle shading/skewing of facts by you and others at the highest levels of . . . management has occurred and is occurring. The term "cover up" would be too strong a characterization which is why I am attempting to carefully (and perhaps over laboriously) choose my words here.

That is exactly what I could write -- except no one dies when we make mistakes.

Where I work is a similar story. It's an insignificant government agency -- so insignificant we are still being run by the Clinton people and there is no sign of a replacement. Just last week they fired three pretty low-level employees, for no apparent reason. One was a lady who had worked here for 12 years -- another had been here about 8 years. The speculation is that the firings were done because the political appointees want to free up some funds to make more grants to their friends. Is it true? Who knows, and even if so, no law has been violated. Each of these employees was considered to be 'at-will' so there does not need to be cause for firing. None was given. And the appointees clearly have the authority to take the policy actions they are taking. We have been instructed to ignore something Congress has directed -- in this case it's a sin of omission, not commission. By ignoring it, we're not violating any law -- it's more a case of leaving an arrow in the quiver -- or actually leaving it locked in a safe.

Yeah, I know, I'm rambling now -- I admit that I'm frustrated. Anyway, lunch is over, and I'm dotting every "i" and crossing every "t" so I'd better get back to work.

I admire whistle-blowers -- it is a very difficult thing to do.

More. Orrin Judd has some thoughts about whistleblowers in his review of Serpico.

School Choice. Eugene Volokh very graciously gives his prediction in the Zelman case. I do hope he's right on the prevailing party.

We disagree, slightly, on the ordering of the Justices. I see his point regarding Ginsburg and confess that my prediction is based more on an unfounded hope. He looks at her dissent in Capitol Square Review & Advisory Bd. v. Pinette. This was the case where Ohio law had set aside the Capitol Square as a public forum, the KKK filed an application to place an unattended cross in the Square during the Christmas season. In this case, the Court (Scalia writing the main opinion) Souter and O'Connor concurred, Stevens and Ginsburg dissented.

My hope is that Ginsburg will not see this primarily an Establishment Clause case, but rather one of choice in using public (or government) benefits. This was why I mentioned the Witters case awhile back. In that one, Mr. Witters, a blind man, wanted to use state funds awarded to the blind to pursue education to go to seminary. There, the state of Washington rejected his request saying this was too close to crossing the line of establishment of religion. The Supreme Court unanimously rejected this concern, with Justice Marshall writing for the Court. I confess that my hope on Zelman is that it will follow the Witters precedent and find that this is not a grant of government funds or benefits to religion, but a grant to parents, who may choose it for religious or non-religious schools.

A week or two ago, when I started harping on this, I quoted Eugene's law review article: “government doesn’t necessarily endorse private choices that people make with government funds, any more than it endorses cabbage by letting people use food stamps to buy the food of their choice, which may include cabbage.” [Equal Treatment Is Not Establishment in 13 Notre Dame J. L. Ethics & Pub. Policy 341, 357-358 (1999).] To extend his analogy slightly, it doesn't necessarily endorse Judiasm if the person uses food stamps to buy kosher products.

Now, having just written that last line, I don't want to seem like I'm trivializing Judaism and reducing it to Hebrew National Wieners. That is not my intent.

Outrageous. So this is the latest atrocity in the Middle East? A messed-up bed? Check out Arafat's look of outrage.

Which Church? Terry Mattingly raises a good number of questions about the recent seige at the Church of the Nativity, that, although, unanswered, actually give more clarity to what happened than does most of the news reports about the seige.

Design Debate. Rich Hailey has an excellent response to Ian Murray's TAP essay on intelligent design. Must Reading -- actually, both are.

No one ever expects.... From where I'm sitting in the bleachers, this column looks like a sweet hanging baseball being served up to the Barry Bonds of the Blogosphere. Take it away Sir James Lileks. (It opens, seriously: "Someone must tell President George W. Bush that there are reasons why the Founding Fathers separated church and state and that one of them was that they wanted to avoid the faith-based bickering that drenched Europe in blood after 1517 and eventually led to a conflict known as the Thirty Years' War." It closes with the Spanish Inquisition.)

Zelman. Nat Hentoff thinks the Cleveland school voucher case, Zelman v. Simmons-Harris, will be closer than I do. He says it will be a 5-4 decision with the outcome in Sandra Day O'Connor's hands. As you may recall, I predicted a unanimous victory for the Cleveland plan, then backed off and said it would be upheld 7-2. I agree with Hentoff that O'Connor is the decisive judge, which is why I think Rehnquist would've assigned the case to her for the opinion and I think her opinion will be narrow enough to bring over Breyer and Ginsburg to her side, leaving Souter and Stevens in dissent.

But who knows? If I could predict the future, I'd buy lottery tickets and go work for legal aid. Maybe we can persuade former O'Connor clerk Eugene Volokh to share his thoughts with us. [I see his brother Sasha has commented succinctly: "The short-run goal -- win."

Zelman Oral Arguments

Court Stuff. No decisions or orders from the Justices today. Here is a summary of the remaining cases from Monday's USA Today. If you really have a hankering to read from a justice, Antonin Scalia has an essay on-line in First Things.

Or, if you're interested in a real-world case, look at Fritz's Sneaking Suspicions page.

Battling Civilians. Orrin Judd has an excellent essay and review of Caleb Carr's The Lessons of Terror : A History of Warfare Against Civilians. Brother Judd's thoughts on war and "non-combatants" are, as always, insightful.

[spelling error corrected -- sigh -- did I really write that?]

US Wins Opener. Upsetting Portugal.

On Combatants and other Civilians. Both John Betts and Chris Burgwald read my remarks below as an attack on Chris for attacking veterans. If it were just one, I'd write it off as a misreading of my remarks. Since it's both, it's clear that I am the one failing to communicate.

So let me try again. I submit that the civilians of both Hiroshima and Nagasaki were more morally culpable for the crimes of their nation than those who fought back against the Japanese. In fact, but for the beligerant, reprehensible actions of the Japanese in WWII, there would have been no Marines and sailors giving their lives in the Pacific campaign. I want to know where civilians from a peaceful nation under attack who go to the defense of their nation are considered to be more expendable than the citizens of the war machine that go on the attack.

Mind you, I do not back off one bit on my prior remarks. I get really ticked off when people just assume facts into or out of existence with a wave of the hand (everyone knows there was no military value for attacking either city -- everyone knows the aliens who crash landed at Roswell are kept at Area 51 -- etc.). If my response was scathing, I submit it was properly so -- the initial proposal was extremely offensive.

If you want to argue that a theoretical nuclear attack is not justified in a theoretical time of war, go ahead and do so. However, if you want to argue that the nuclear attack on the Japanese was or was not justified, you have to do so in context and not just assume facts away. You have a duty to examine the historical record first.

Dresden has been raised -- this is clearly a more troubling instance -- so why wasn't it chosen? Similarly the firebombing of Tokyo took more lives, why was it not chosen? [Although I maintain that the Japanese High Command which deliberately located military targets in civilian neighborhoods in contravention of the principles of war is more culpable than the Allies.]

Okay, my ranting is done for the day. For a more temperate personal reflection on Memorial Day, check Fritz.

Update: See John's comments on my response. Also, I should note that if we're going to be discussing just war -- it might be better off to start with more recent events, such as the US attack on Yugoslavia. At that time I wrote to my sister: "There are no U.S. interests at stake in this controversy. Moreover, our involvement violates St. Augustine's first precept in fighting a just war. That is a just war can only be a defensive war." March 26, 1999.

Third Branch There is an essay attacking the Rehnquist court as conservative-activist in the June Atlantic. I actually subscribe to this magazine and have been waiting for this article to go on line so I could respond to the essay, but I used up my lunch on the bomb, so read the article today and I'll have some thoughts later.

Mendacium. Apparent Palm Beach public school graduate Chris Burgwald in the mis-named blog Veritas opines that the decision to go nuclear in August 1945 was morally wrong. His basis for this assertion is that in so doing the United States killed "thousands" of civilians just to save the lives of a few million military combatants.

The guy shows himself to be a total idiot and, as the self-proclaimed blithering idiot of the blogosphere, I really resent this.

Seriously, it is obvious that Mr. Burgwald has absolutely no historical foundation for his assertions. For example, he dismisses historical fact with the careless flip of his hand ("as is well-known, neither city had any real military value"). In fact, Hiroshima was a military city and had been for decades. It was where the Second General Headquarters of the Imperial Army and the city served as a military base for both the Sino-Japanese and the Russian-Japanese Wars. What is well known, however, is that Nagasaki was not on the preliminary lists of targets (the primary target that day was Kokura Arsenal on Kyushu. That does not mean it was not, in fact, a military target. Like Hiroshima, it too, had "real military value" in that it had two arms factories, a steel works, and the Mitsubishi shipyards and torpedo factory. (Although Burgwald might be one of those conservatives that see all government as bad and all industry as good -- which might explain why these cogs in the war machine could be dismissed as non-government.)

Burgwald should take a trip to his local library and start educating himself. Start with Iris Chang’s The Rape of Nanking (focusing on not just the number of people killed, which was more than Hiroshima and Nagasaki combined, but looking at the brutality of the killing of a city that had surrendered). More on Nanking here. Proceed to Gavan Daws' Prisoners of the Japanese (1994) and Hampton Sides' Ghost Soldiers (about the order to kill all American POWs and their rescue by the Allies). Then learn about the Pacific campaign. Look at Col. Joseph Alexander's Utmost Savagery: The Three Days of Tarawa (a confession: I used to mow Col. Alexander's lawn), Flags of Our Fathers by James Bradley with Ron Powers, Tennozan: The Battle of Okinawa and the Atomic Bomb by George Feifer. You must know about the Pacific campaign to understand the decision to drop the bomb.

Our country was at war with an implacable foe who would stop at nothing -- in Tennozan the Marines tell of standing literally knee deep in blood. More people died conquering Okinowa than in the two atomic bomb drops -- and over half of these were Okinowan civilians sacrificed by the Japanese.

Finally, Burgwald issues a giant F*** you to the families of everyone who died in the war. In response that 1,000,000 or more U.S. citizens would have died had not the bombs been dropped he responds: "My response: so what?" or a clear F*** you.

It never occurs to Burgwald that ever single one of these 1,000,000 were civilians prior to December 7, 1941. I can tell you that my first name, William, is in tribute to my mother's brother, William, who was killed by the Nazis in Europe. Prior to the war he and his brother, Robert, were both fun loving civilians, not blood-thirsty combatants that Burgwald sees as being so expendable. Both died in the second world war. But for Burgwald this is a classic case of "so what." Hey, these guys were U.S. Army -- who gives a flying flip whether they live or die?

Geez, what a flipping idiot.

More. I got the link to Burgwald's comments from Mark Byron. After my initial reaction I went back and read some of the links that Byron included and came across this response from John Betts. He has a lot more information than I did. Moreover, reading Burgwald's continuing responses I can see that he's wedded to his view point and won't let the facts get in the way.

Nothing Yet. Nothing from the Supremes, yet, after my fearless prediction yesterday. Maybe I spooked them.

US wins World Cup. In today's WaPo (I wonder how many years before the Post finally changes its name?), Robert J. Samuelson notes that it won't be long before the rest of the world really hates US -- when we win the World Cup. I agree with him, it won't be long before that happens. I have two quibble with his piece, however.

First, a minor note. Samuelson fails to note that the lawyers are responsible in large part for the rise of soccer in the US. He notes soccer "is now the second most popular team sport among 6- to 17-year-olds." I submit that part of the reason is liability. It is getting harder to put together a pee-wee football league with the necessary equipment -- especially properly fitting helmets and get the requisite insurance necessary. Similarly, although on a lesser scale, you see the same problem with baseball. Now, I'm very familiar with soccer and know that it can be very violent and injuries happen. Nevertheless, it is inherently less risky than either football or baseball for the younger ages. The same is true for basketball, which Samuelson notes is the most popular team sport in the 6 to 17 range. On a related note, it should be noted that both basketball and soccer are sports open to both boys and girls, whereas football and baseball are for boys only (baseball, less so).

Second, my major issue: Samuelson writes: "In some ways, soccer's rise mirrors baseball's fall. Anyone who's watched a game of "kid pitch" among 8- or 9-year-olds knows why. It's boring." Speaking of baseball's twin sister, softball, I must strongly disagree. When it comes to a game of 8 & 9 year old soccer or softball, the later is much more exciting and interesting. At that age, soccer is just a muddle of kids moving up and down the field around the ball, whereas softball the players have to play their positions and the kids are actually pretty good pitchers (amazingly so, in some cases).

See also: Orrin Judd's note on why soccer is not conservative

Correction. Yesterday I said the Supremes were only issuing orders, no decisions. I was relying on the Court's website and the AP. It appears both were slow and I was hasty. There were in fact two decisions. One, a patent law/federal jurisdiction case (Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc.), the other an SEC case (SEC v. Zandford). If you're really interested in these cases, you can see Howard Bashman's blog; but look at his disclaimer: "ATTENTION NORMAL HUMANS: TODAY'S OPINIONS WERE IN REALLY BORING CASES."

Prediction. I'm still maintaining my prediction that the Supremes are going to uphold vouchers. I predicted it would be unanimous, but I actually think it will be 7-2 (I'm not really wavering), the majority opinion by O'Connor and Stevens writing the main dissent. Case will come out tomorrow.

Sad Day. That's the title of an e-mail I received from my sister in Colorado. One of her former students, Mariah, a ten-year old girl, was killed this weekend when she fell out of a truck being driven by her father and struck her head. My sister writes that she was "an incredible girl . . . I can't say enough about Mariah . . . I truly loved her." Please pray for the Nash family and their friends and those who will support them.

Supremes. It looks like its just orders today -- perhaps they'll release opinions tomorrow. In any event, they passed on the case in which the defense attorney slept through portions of a capital case and will consider a case by the Navajo nation against the Department of the Interior in conjunction with one already on the docket involving a neighboring Tribe, the White Mountain Apaches, who are suing the Feds for failing to deliver on promises of building maintenance at Ft. Apache.

Update. I'm getting a little tired of all the Sgt. Schultz jokes with respect to my inability to identify the woman detained for the office thefts last week. But maybe I deserve it.

On the other hand, I got a nice note from John Bell, "a lawyer and part-time farmer," addressing my question as to whether returning the money to a co-worker is an admission:

[Y]es returning the money is an admission, just not a very good one. "Your honor, my client is innocent. Sure she reimbursed these unfortunate people, but that was out of fear that the police would continue to hound her as a suspect even though no eye-witnesses identified her as the thief. Innocent parties settle cases all the time to avoid more trouble." Without a confession or a good eye witness, there is really no proof beyond a reasonable doubt. If the amount taken from any individual victim was under $200.00, all you have is a collection of difficult to prosecute misdemeanors in a system already creaking at the breaking point. I prosecute out at the other end of I66 in Front Royal and have the luxury of
at least looking at a case file before trial. Down in Fairfax and the surrounding counties, the prosecutors handling misdemeanors are given a docket sheet and a legal pad and told what courtroom to go to. Any problems with the case, forget it.

By the way, Mr. Bell publishes the fine "Notes from a Hillside Farm" with thoughts on Orthodoxy, farming, and, well, life in general. He calls attention to the birthday of one of the great writers and thinkers, Walker Percy, who would've been 86 last week. Rest in Peace, Mr. Percy, and thank you for not letting us live in peace.

"Why does man feel so sad in the twentieth century? Why does man feel so bad in the very age when, more than in any other age, he has succeeded in satisfying his needs and making the world over for his own use?" -- Walker Percy

"We love those who know the worst of us and don't turn their faces away." -- Walker Percy

Superchic[k]. Here's a new band that my daughter (age 13) and I (age 43) both like: Superchic[k]. Here's a story on the group.

Cover Watch. Time is anxious -- the editors should be -- Newsweek wins this week with its cover story on two terrorists the CIA should've caught.

Dense Jedi. At the risk of disclosing what a total Star Wars geek I am, I have one more continuing complaint. If the assorted Jedi are so great -- why can't Yoda, Qui-Gon Jinn, Mace Windu, Obi-Wan, etc. ever figure out that Senator/Chancellor Palpatine is Darth Sidious? Oh yeah, it's because he wears his cloak over his forehead and eyes -- Clark Kent should've tried that. Geez -- are you sure the Jedi aren't working for underperformin' Norman?

Could this be why Darth Maul gets his resident alien forms in Attack of the Clones?

First Job. Do you remember what Threepio said in the very first Star Wars movie, you know, Episode IV? "Sir, my first job was programming binary load lifters -- very similar to your evaporators in most respects!" So when does he get his first job? And how come he doesn't recognize Uncle Owen and Aunt Beru? Nor does Artoo? And why don't Owen and Beru recognize the droids? Just one of many problems...

Some Excitement. We had a lady come through our offices late this morning who apparently was robbing people. I saw her enter the office of the lady across the hall, who turned up missing $20. When I let the lady know that someone had stopped by looking for her -- someone I didn't recognize -- that started the alarms. We just heard that they picked her up in the building next door -- the CNN building.

Update. I just got back from trying to identify the detainee. Unfortunately, I didn't look at the mystery person's face very closely and couldn't identify her. Why do I feel guilty -- like I let my co-workers down? Apparently she returned the money to everyone who ended up missing some -- why wasn't this an admission? I don't do criminal law.

Star Wars, Take 2. Since I'm still catching up from my time away, I'll give you my take on this one. I think Attack of the Clones was actually a worse movie than Phantom Menace.

My daughter and I saw it together after her dance class on May 17, 2002 -- the day after the official debut. She loved it -- I was disappointed.

Let me explain my reaction. I look at the Star Wars movies in two ways: first, as part of the Star Wars canon, second, as stand-alone movies. Like it or not, the first movie made, the Star Wars movie now known as "A New Hope" is the foundation on which all the other SW movies will stand or fall. Since it came first, all others have to be consistent with it. The original Star Wars was a great movie -- give it a nine on a ten point scale. Similarly, the second movie in the series produced, The Empire Strikes Back, was a great movie -- although, in my opinion, not quite as good as the first. Yes, there were many things which were better and it easily enhanced the Star Wars canon. In fact, if I was rating it as a movie, I'd probably give it an 8.9, but as part of the canon, give it a 9.1.

The third movie produced, Jedi, seemed to be more merchandising oriented, with the Ewoks, which always bugged me. Nevertheless, it still works. I'd give it an 8.5 as a movie and an 8.8 for the canon. [BTW, is Portman going to appear in Jedi?]

Then came Phantom Menace -- introducing Jar-Jar, Ani, racist characters (not to mention the gratuitous slams of the republicans -- Newt Reagan?), Mitichlorians, and a virgin birth. Yech. This drops to about a 4 on the Star Wars canon. Nevertheless, as a movie -- if it were a stand-alone movie -- it would rate pretty high. Maybe an 8. (Maybe I'll lay out some of my problems with PM in a future note, just for the fun of it).

Which brings us to Clones -- a movie that is nothing more than a transition between PM and the next one. One reviewer, I think it was in the NY Times, likened Clones to a graduate seminar -- I wouldn't rate it that high -- call it a community college seminar taught by a bored, embittered professor. The plot, if there is one, is a mess. The love story is wooden -- there is no emotion between the character -- in fact, they seem predestined to breed and that's it -- characters without any choice in the matter. Where Lucas should have gone was to Casablanca -- give us a love triangle -- make Amidala torn between Ani and someone else -- leave the choice in doubt and in tension. [Ewan McGregor is good -- why not make him the third point of the triangle -- make the show-down between the master and the aprentice in ANH more meaningful.]

As it is, this movie plods to the next. Therefore, as a stand-alone movie, I give it a 4, but as part of the Star Wars canon, I'll give it a 6 (when did Artoo get a rocket pack?).

Teen Sex. Ehh, why not put my two pence in, since I was out for the first go 'round. The Professor weighs in with his essay on teen sex -- saying the sexual activity is nothing new, rather what is new is the role of the teenager in the 20th Century. He sees the reaction to teen sex as treating the symptom -- teen sex -- rather than the cause -- what he calls "infantiliz[ing] teens" -- treating them more like kids. He advocates giving teenagers more responsibility -- treating them more like adults and less like members of the leisure class. [I believe this is an accurate summary -- read his essay to be sure.]

For the most part, I agree with him. I note, from Ben's comments that although they have been in disagreement in the past on this subject, they are not far apart here. In fact, it seems to me, from having read a good number of the comments from the first go around that the two "sides" are, in fact, not that far apart. I think what separates the two sides is, in fact, "extra-marital sex" as Mark Byron noted.

My disagreement with the Professor is, first, I don't necessarily think teen-agers are all that crummy. I actually think the next generation -- the kids I see in their teens right now down to the 10-year olds -- are actually a top notch group (especially, when you consider what my generation and the Baby-boomers before me have given them). This group is not merely a group of survivors, but over-comers and victors. Second, I do think that teen-sex is a cause for concern, where I get the feeling that he doesn't think it any more risky than say taking a toke or something. I really believe that sexual relations (the broad definiton, not the Clintonian definition whereby he did not have sexual relations with her or whatever), is incredibly charged -- physically, emotionally, spiritually, and psychologically.

Now, having said all that, I agree with his take -- we must treat the cause, not the symptom.

Four Decisions Yesterday. I really thought the Court was taking a Memorial Day break and wouldn't be issuing any decisions until next week. I was surprised to skim through the NY Times this morning and see that the Supremes issued four decisions yesterday. For me, there weren't any surprises. I'll refer you to Howard Bashman's appellate blog for summaries of each decision and their import.

Oh, and what the heck, I'll throw in a prediction -- the next batch of decisions will include the school voucher case -- Hanna Perkins School, et al. v. Simmons-Harris, Doris, et al. Moreover, the Court will uphold the Ohio law in a 9-0 decision and the main precedent relied upon will be Witters v. Washington Dept. of Svcs. for the Blind, 474 U.S. 481 (1986). In that case, the Court "held that the State may, through a generally applicable financial aid program, pay a blind student's tuition at a sectarian theological institution." (quote summarizing Witters from Justice O'Connor's concurrence in Rosenberger v. University of Va. (94-329), 515 U.S. 819 (1995).

As some brilliant guy once said “government doesn’t necessarily endorse private choices that people make with government funds, any more than it endorses cabbage by letting people use food stamps to buy the food of their choice, which may include cabbage.”
(okay, that was Eugene Volokh in his article titled "Equal Treatment Is Not Establishment" in 13 Notre Dame J. L. Ethics & Pub. Policy 341, 357-358 (1999).)

Back to Work. After the long vacation, the first for my wife and I together in about a decade, it's back to work. I have to apologize for the lack of posts, but I've been blissfully uninformed for the past week and a half. In fact, the day that I turned on CNN they were covering Chandra Levy and shark attacks, just as they were doing on our last family vacation, after labor day last year. On that day, my last day of vacation was 9.11.01 -- a different world ago.

Anyway, I've been spending time with the kids, cutting the grass, doing laundry, etc. Now it's back to work -- i.e., my job. When I was a janitor at an enlisted men's club on a Marine base (my first job) and I took vacation, someone mopped the floors and cleaned the bathrooms while I was gone. No one does that for me anymore and I have a pile of work, mail and e-mail to respond to. Accordingly, I'll be spending a few extra hours each day getting that taken care of, so it'll be awhile still before my personal time is really personal and I'm back here blithering again. Check out the folks on the left for excellent commentary in the meantime.

Memorial Day 2.

In Flanders Fields
by Lt. Col. John McCrae, M.D. (1872-1918)
Canadian Army

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved, and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

Memorial Day 1. Driving around town, in Springfield, Virginia and south to Dale City, we saw at least one brand new flag on both the north and south side of every overpass. One overpass had as many as seven flags.

My sister said she was out for a run with some friends in Wakefield park, very close to the Beltway, when she heard an awesome sound that went on for several minutes -- at first she panicked, thinking it might be a plane or something dreadful. Someone else noticed the distress and noted it was just Rolling Thunder. Just?? Heh. What a great country -- I love my fellow citizens.

Hola! My Bride and I returned from our trip to Mexico last night. More later -- spending time with the kids.

On Vacation Soon. As I indicated below, tomorrow, my bride and I are celebrating our 21st wedding anniversary. We had hoped to go away last year to celebrate our 20th, but we did something even more fun -- we had a baby. That's right, our fourth child was born on our 20th wedding anniversary -- so tomorrow we celebrate her first birthday as well. In any event, I'm promising to take some time off from work and computers and everything starting Sunday -- so posting beginning this weekend will be non-existent (if I can stay away from the PC).

40 cups in 2 seconds. The NY Times takes note of the mega-churches. There is a note in there that gives me pause: ". . . the Greenlee Communion Dispensing Machine . . . can fill 40 communion cups in 2 seconds." Is this what Jesus intended when He said to "do this in memory of me?"

This isn't a criticism, per se, rather a pause. Per Mark 2:27, God gives Communion to man, he did not make man for Communion. (well, actually He did make us so we could be in communion, but, I think you see what I'm indicating.)

Adam, Eve, and Submission. Mark Byron has a good exegesis of Ephesians 5:21-27. This was one of four passages my wife and I had read at our wedding (21 years ago, tomorrow). There are some that try to use this passage to suggest that women are somehow inferior to men -- I don't buy it, for the reasons that Mark explains, among others.

Another verse relied on by those who, for whatever reasons, try to stir up strife between men and women is Genesis 2:18: "The Lord God said, 'It is not good for the man to be alone. I will make a helper suitable for him.'" The thinking is that a woman is just to be a helper, an assistant, subservient to man. The IVP website has a good rebuttal to this idea in the exposition of this verse. Since the note changes on a daily basis, I will quote extensively:

Are women inferior to men, merely designed to be their helpers? Is it consistent with the biblical text to view men as the initiators and women as their assistants? Is this what makes women suitable matches for men?

The Creator regarded Adam's situation as incomplete and deficient while he was living without community or a proper counterpart. The Creator judged Adam's situation quite negatively: "It is not good."

Ecclesiastes 4:9-12 expresses this same opinion about aloneness. The wise writer Solomon advised:

Two are better than one. . . . If one falls down, his friend can help him up. . . . Also, if two lie down together, they will keep warm. But how can one keep warm alone? Though one may be overpowered, two can defend themselves.

True, in Jeremiah 16:1-9 the prophet Jeremiah is commanded by God to remain alone, but this is meant to be a sign that God's judgment on the people is so near that it will not be worthwhile to get married. Nevertheless, the full life is a life that finds its fulfillment in community with another person or group of persons.

In the Genesis story we find that God created a woman after he had created the man. This would end Adam's loneliness and the state that God judged to be "not good." She was to be his "helper"--at least that is how most of the translations have interpreted this word. A sample of the translations reads as follows: "I shall make a helper fit for him" (RSV); "I will make a fitting helper for him" (New Jewish Publication Society); "I will make an aid fit for him" (AB); "I will make him a helpmate" (JB); "I will make a suitable partner for him" (NAB); "I will make him a helper comparable to him" (NKJV).

However, the customary translation of the two words `ezer kenegdo as "helper fitting him" is almost certainly wrong. Recently R. David Freedman has pointed out that the Hebrew word `ezer is a combination of two roots: `-z-r, meaning "to rescue, to save," and g-z-r, meaning "to be strong." The difference between the two is the first letter in Hebrew. Today that letter is silent in Hebrew, but in ancient times it was a guttural sound formed in the back of the throat. The g was a ghayyin, and it came to use the same Hebrew symbol as the other sound, `ayin. But the fact that they were pronounced differently is clear from such place names which preserve the g sound, such as Gaza or Gomorrah. Some Semitic languages distinguished between these two signs and others did not; for example, Ugaritic did make a distinction between the `ayin and the ghayyin; Hebrew did not (R. David Freedman, "Woman, a Power Equal to a Man," Biblical Archaeology Review 9 [1983]: 56-58).

It would appear that sometime around 1500 B.C. these two signs began to be represented by one sign in Phoenician. Consequently the two phonemes merged into one grapheme and what had been two different roots merged into one, much as in English the one word fast can refer to a person's speed, abstinence from food, his or her slyness in a "fast deal" or the adamant way in which someone holds "fast" to positions. The noun `ezer occurs twenty-one times in the Old Testament. In many of the passages it is used in parallelism to words that clearly denote strength or power. Some examples are:

There is none like the God of Jeshurun, The Rider of the Heavens in your strength (`-z-r), and on the clouds in his majesty. (Deut 33:26, [author's] translation)

Blessed are you, O Israel! Who is like you, a people saved by the Lord? He is the shield of your strength (`-z-r) and the sword of your majesty. (Deut 33:29, [author's] translation)

The case that begins to build is that we can be sure that `ezer means "strength" or "power" whenever it is used in parallelism with words for majesty or other words for power such as `oz or `uzzo. In fact, the presence of two names for one king, Azariah and Uzziah (both referring to God's strength), makes it abundantly clear that the root `ezer meaning "strength" was known in Hebrew.

Therefore I suggest that we translate Genesis 2:18 as "I will make a power [or strength] corresponding to man." Freedman even suggests on the basis of later Hebrew that the second word in the Hebrew expression found in this verse should be rendered equal to him. If this is so, then God makes for the man a woman fully his equal and fully his match. In this way, the man's loneliness will be assuaged.

The same line of reasoning occurs in the apostle Paul. He urged in 1 Corinthians 11:10, "For this reason, a woman must have power [or authority] on her head [that is to say, invested in her]."

This line of reasoning which stresses full equality is continued in Genesis 2:23, where Adam says of Eve, "This is now bone of my bones and flesh of my flesh; she shall be called `woman,' for she was taken out of man." The idiomatic sense of this phrase "bone of my bones" is a "very close relative," "one of us" or in effect "our equal."

The woman was never meant to be an assistant or "helpmate" to the man. The word mate slipped into English since it was so close to Old English meet, which means "fit to" or "corresponding to" the man. That all comes from the phrase that I have suggested likely means "equal to."

What God had intended then was to make a "power" or "strength" for the man who would in every way "correspond to him" or even "be his equal."

He's running for President. It finally dawned on me this morning as I was driving to work listening to Jimmy Carter's address to Cuba: "¡Mi Dios! ¡Él está funcionando para el presidente de Cuba!" (My God! He's running for president of Cuba!). Give it up Jimmy -- Fidel will outlast you.

Update. My friend from Cuba advises me that I used the wrong verb above. He said poseer would be a closer approximation of the concept of running for office -- what I wrote is more like he's working or cooperating with the president. So it should say: "...Él está poseído..."

Also, let me make it clear, I did like Carter's speech to Cuba -- maybe all that controversy with bioweapons was just to set up Castro so he could speak a little bit of truth to the people.

'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!